In Hamazaspyan v. Holder, the Los Angeles Immigration Judge denied Mr. Hamazaspyan’s motion to reopen an in absentia removal order on the grounds the immigration court sent notice to the address Mr. Hamazaspyan provided to the Department of Homeland Security, an address without an apartment number. However, the Immigration Court erred by not serving Petitioner’s counsel of record with the hearing notice. Serving a hearing notice on an alien, but not on the alien’s counsel is insufficient when an alien’s counsel of record has filed a notice of appearance with the immigration court. When such an appearance has been filed, the government must serve all notices to appear and all hearing notices on the respondent’s counsel of record. The Court does not reach the question whether an immigration judge may issue an in absentia removal order if it is uncontested that the alien received actual notice despite the government’s failure to send the notice to the alien’s counsel of record. The record here is undisputed that Hamazaspyan did not receive actual notice because the hearing notice was not handed to him in person, and did not reach him in the mail – it was returned to the immigration court by the postal service and labeled “undeliverable.” An in absentia removal order must be rescinded if the government sent notice of the time and place of a removal hearing by mail to an address provided by the alien, but (1) the BIA has not proven the alien received actual notice; (2) the alien has proven he is represented by counsel who had filed a notice of appearance as counsel of record with the immigration court before such notice had been sent; and (3) the government has not proven it sent notice to the alien’s counsel of record.
If you have been ordered removed from the United States in absentia, contact The Nunez Firm to discuss the possibility of reopening your case. Managing attorney Jay Nunez has an extensive track record of success in reopening in absentia cases. The Nunez Firm offers free consultations in order to discuss your case and the options available to you.
Categories: Immigration Law Information, Los Angeles Immigration Hearings, Ninth Circuit Case Law, Uncategorized Tags: board of immigration appeals, case reopened, deportation, in absentia, Los Angeles, motion to reopen, ninth circuit, Southern California
We received the immigration judge’s decision granting a motion to reopen my client’s deportation case in the Los Angeles Immigration Court. My client had a deportation hearing scheduled in Los Angeles in mid-2009; however, the Department of Justice mailed the notice of hearing to the client’s old address even though the client notified United States Citizenship and Immigration Services (USCIS) of his address change in compliance with the law.
Unfortunately, because USCIS and the Department of Justice do not share the same database regarding aliens’ addresses, the Department of Justice mailed the notice of hearing to the old address. My client never received proper notice of the hearing, and he was ordered deported for not showing up at court. Eventually, he found out about the deportation order and hired The Nunez Firm to reopen his case.
In November 2009, we filed a motion to reopen in absentia proceedings. Los Angeles Immigration Judge Latimore agreed that my client had followed the law and changed his address as required by the Immigration and Nationality Act, and she ordered the case reopened. Now, my client will be able to defend against deportation and hopefully obtain his green card.
If you or a loved one has been ordered deported for not attending an immigration court hearing, The Nunez Firm may be able to help you reopen your case. Contact The Nunez Firm to schedule a free consultation. Managing attorney Jay Nunez will personally discuss your case with you and help you better understand your situation and the options available to you.
For the last 20 years, aliens in removal proceedings have had the right to effective assistance of counsel. This right allowed an alien to have his case reopened if his previous attorney performed ineffectively. The case Matter of Lozada provided the right to effective assistance of counsel based on the Due Process Clause of the Fifth Amendment. Since 1988, Matter of Lozada has provided a means by which aliens could reopen their case and fight an outstanding deportation order. That was until Attorney General Michael Mukasey’s last weeks in office.
On January 9, 2009, Attorney General Mukasey issued an opinion overruling Matter of Lozada and other pro-immigrant decisions. The Attorney General opinion is essentially a mandate to all immigration courts and the Board of Immigration Appeals on how to interpret the immigration laws. AG Mukasey declared that aliens in deportation proceedings do not have a right to government-appointed attorneys, and the due process clause’s guarantee of effective assistance of counsel only applies to state actors as opposed to private attorneys.
On Monday, the new Attorney General, Eric Holder, vowed to reexamine the Mukasey decision.
Mr. Holder’s decision on how to treat Matter of Lozada is extremely important. Matter of Lozada is oftentimes an alien’s last chance to avoid deportation. Far too often immigration attorneys make crucial errors while representing their clients; Matter of Lozada gives the alien respondent a chance to reopen the case to fix the errors made by the previous attorney.
If you have been ordered deported, call The Nunez Firm today to discuss whether you might have a chance to reopen your case. 949-903-0088