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Make sure you keep in contact with your Immigration Attorney

The Sixth Circuit interpreted INA §240 as requiring that personal service be made upon a noncitizen whenever practicable, and held that personal service to a represented noncitizen’s counsel may, in certain cases, constitute personal service to the noncitizen. The court upheld the Board of Immigration Appeals, finding that the respondent, who was ordered removed in absentia after failing to appear at a master calendar hearing in his removal proceedings, had received sufficient notice under the INA, where the respondent’s counsel was personally served with written notice of the hearing on the day that he appeared with the respondent in immigration court.

Physical Presence continues to accrue if NTA not served

The BIA sustained the respondent’s appeal and remanded, holding that a notice to appear (NTA) that was served but never resulted in removal proceedings does not have “stop-time” effect for purposes of establishing eligibility for cancellation of removal pursuant to section 240A(d)(1) of the Immigration and Nationality Act.

The Notice to Appear and Removal Proceedings

Deportation and the Notice to Appear

I’m in Deportation Proceedings. Now What?

Question: I have been served with a Notice to Appear and been put into Removal Proceedings. What do I do?

Answer: The Removal Proceedings begins with issuance of a Notice to Appear and there are very specific requirements that must be included in Notice to Appear. If they are not included, you can try to ask for proceedings to be terminated.

Question: What type of requirements are supposed to be in the Notice to Appear?

Answer: The following items are required: In removal proceedings under section 240, written notice (in this section referred to as a ‘notice to appear’) shall be given in person to the foreign national (or, if personal service is not practicable, through service by mail to the alien or to the alien’s counsel of record, if any). Thus, the first item is that it must be properly served on the foreign national in order to give notice of the hearing.

It must specify the following:
“(A) The nature of the proceedings against the alien.
“(B) The legal authority under which the proceedings are conducted.
“(C) The acts or conduct alleged to be in violation of law.
“(D) The charges against the alien and the statutory provisions alleged to have been violated.
“(E) The alien may be represented by counsel and the alien will be provided (i) a period of time to secure counsel
“(F)(i) The requirement that the alien must immediately provide (or have provided) the Attorney General with a written record of an address and telephone number (if any) at which the alien may be contacted. The requirement that the alien must provide the Attorney General immediately with a written record of any change of the alien’s address or telephone number and the consequencesof failure to provide address and telephone information.

Next, there must be the time and place at which the proceedings will be held and the consequences of the failure, except under exceptional circumstances, to appear at such proceedings.

There must be listed the time and place of the proceedings.

Question: Will an attorney be appointed for me?

Answer: No. However, you do have the ‘right’ to have an immigration attorney of your choosing. Therefore, the first hearing will usually be continued in order to give you an opportunity in which to obtain an immigration attorney to help you.

Question: Should I admit the crimes listed on the Notice to Appear?

Answer: You should never admit the crimes. It is the burden of the government to prove that you are removable by clear and convincing evidence and that burden cannot be shifted because you simply admit to the crime.

Question: What about the grounds of removability? Should I admit to those as well?

Answer: First, you should make certain that you have an immigration attorney who is familiar and an expert in deportation and removal proceedings. In any event, some items of removability you could not realistically deny. However, many you can deny. For example, if you are being charged as an aggravated felon, there is a possibility that you can fight this and show you are wrongfully being classified as an aggravated felon.

In any event, it is very important to plea properly to the Notice to Appear and to fight the issuance or contents of the Notice to Appear if they are not properly served or placed in the Notice to Appear.

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