Kurzban Kurzban Tetzeli & Pratt | Attorneys At Law

The Fifth Circuit gifts immigrants everywhere a potential way to reopen their in absentia orders of removal!

On Behalf of | Oct 21, 2021 | Immigration, Immigration Review |

On September 27, 2021, the U.S. Court of Appeals for the Fifth Circuit – which covers many of the Southern Border states, published Rodriguez v. Garland, No. 20-60008 (5th Cir. Sept. 27, 2021).

Rodriguez is a very important case.  In Rodriguez, the Fifth Circuit stated that because the immigration statute governing reopening of in absentia removal orders “specifically reference § 239(a) notice requirements,” the Supreme Court’s analysis in Niz-Chavez v. Garland applies.  According to the Fifth Circuit, that means that if a noncitizen was ordered removed in absentia based on a Notice to Appear (NTA) that did not comply with INA § 239(a), proceedings should be reopened.  The Fifth Circuit issued this holding without requiring the noncitizen to overcome the presumption that the follow-up notice of hearing was properly delivered.

What does all this mean in laymen’s terms?

It means that if a noncitizen did not show up for his or her hearing and was ordered removed in the past, the noncitizen must check whether their NTA included the date, time, and location of the first hearing.  Noncitizens can check this by reviewing their personal immigration records, or by filing Freedom of Information Act requests.  If the NTA does not have the date, time, and location of the first hearing, the noncitizen will likely have a strong case for vacating their removal order, reopening their case, and receiving another chance to establish their eligibility to remain in the United States.  While the analysis is of course complicated, Rodriguez is an important case for attorneys and noncitizens throughout the U.S. to know.

[Link to Immigration Review Podcast Episode 74]



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