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A New Ruling on In-Absentia Deportation Orders

Posted by Hugo R. Valverde, Managing Attorney, and Anna D. Colby, Attorney Social Media Marketing Manager | Aug 22, 2023 | 0 Comments


Did you know that if you receive a Notice to Appear for removal proceedings in Immigration Court, but the Notice does not include a date or time, a removal ordered given after might be void?

In 2021 we wrote about a significant case that the U.S. Supreme Court decided on, Niz-Chavez v. Barr, in which the Supreme Court held that NTAs must be a single, comprehensive "notice to appear" with details on the charges and scheduled court appearance. 

In a new 4th Circuit ruling, a federal court has ruled that someone in removal proceedings who has received a faulty Notice to Appear cannot be ordered removed in absentia (meaning the person was not in the courtroom at the time of the order). 

In 2021 the Supreme Court ruled that a notice to appear “that does not inform a noncitizen when and where to appear for removal proceedings is not a ‘notice to appear under section 1229(a).'” The Federal Code section that the Supreme Court cited in that case is still incredibly important. In this latest case about in absentia orders, Lazo-Gavidia v. Garland, the 4th Circuit Court ruled that the immigration court did not have the authority to order Ms. Lazo-Gavidia removed in absentia because the government did not provide her with proper notice under the Federal Code. Not only that, but the Court also ruled that because improper notice was given, and because of the length of time Ms. Lazo-Gavidia had been in the U.S., she was entitled to rescission of her removal order. This decision potentially invalidates a multitude of removal or deportation orders previously issued by the immigration courts in Virginia, Maryland, North Carolina or South Carolina.  

Court cases involving any type of law can be quite complicated to unpack and understand, especially in immigration law where rulings get very detailed and are very code-heavy. But this case is a win for people with removal cases. It makes clear that the government has to be held to the highest standards of U.S. code when trying to remove someone, and that there aren't exceptions for the government to accurately provide a Notice with the date and time of a hearing. 

If you have an order of deportation or removal and would like to determine whether you are eligible to have the order rescinded and your case reopened, please reach out to us at (757) 422-8472, or send us a message on our website. You can also schedule an appointment with one of our attorneys by clicking on this link.

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