I-601 and I-212 Waivers and Deportation In Absentia

I-601 and I-212 Waivers and Deportation In Absentia

Section 212(a)(6)(8) of the Immigration and Nationality Act sets forth the consequences of failure to attend a removal proceeding.  Specifically, it states:

(1) General. Any alien who, without reasonable cause, fails or refuses to attend or remain in attendance at a proceeding to determine the alien’s inadmissibility or deportability, and who seeks admission to the United States within five (5) years of such alien’s subsequent departure or removal is inadmissible.

This “5 year bar” under Section 212(a)(6)(8) often becomes an issue for applicants who leave the United States to apply for the I-601 and/or I-212 waivers despite having had deportation ordered entered against them “in absentia.”  A deportation order in absentia can be entered when the alien fails to attend their removal hearing after receiving a Notice to Appear (NTA) from immigration court.  For these applicants, they must remain outside the United States for 5 years until they are eligible to apply for their I-601 and/or I-212 waivers.

Keep also in mind that you can be deemed inadmissible even if the judge did not enter a deportation order.  As long as you were given sufficient notice of your removal hearing and failed to appear, you may be deemed inadmissible under Section 212(a)(6)(8).

Those who have an order of deportation in absentia on their record must show “reasonable cause” for failing to attend their removal hearing, in order for their I-601 and/or I-212 waiver applications to be adjudicated.  This is not an easy task.  A review of the case law shows that only extraordinary circumstances such as a medical emergency will meet this standard.

There are also additional points worth pointing out about Section 212(a)(6)(B):

  • Effective on or after April 1, 1997. Section 212(a)(6)(B) of the Act does not apply to an alien placed in deportation or exclusion proceedings before April 1, 1997, even if the alien’s hearing was held after April 1, 1997. The provision applies only to individuals who are placed in removal proceedings beginning April 1, 1997. An alien who failed to attend an exclusion proceeding under former section 236 of the Act, or a deportation proceeding under former section 242 of the Act is, therefore, not inadmissible under section 212(a)(6)(B) of the Act.
  • Only Applicable to Aliens Who Departed or Who Were Removed.  Since the ground of inadmissibility applies to aliens, who ‘ … seek admission to the United States within five (5) years of such alien’s subsequent departure or removal. .. ,’ only those aliens, who actually departed or were removed from the United States after failing to attend or to remain in attendance at their removal proceedings are inadmissible. Aliens, who remained in the United States after failing to attend their hearing, are not inadmissible under this provision.
  • Only Applies to Aliens Seeking Admission During the Five (5)-Year Bar.  This ground of inadmissibility does not apply to aliens who seek admission to the United States more than five (5) years after their departure or removal from the United States.
  • In order to be inadmissible under section 212(a)(6)(B) of the Act, the alien must actually have been in removal proceedings under section 240 of the Act.  A section 240 removal proceeding is initiated by the filing of the Notice to Appear (NTA), Form 1-862, with the immigration court. See 8 CFR 1 003.14(a). Even if the alien was served with the Notice to Appear, the alien will not be inadmissible under section 212(a)(6)(B) of the Act unless the NTA was actually filed with the immigration court.
  • Also, even if the NTA has been filed, an alien cannot be found to have “failed to appear” unless the alien had notice of the proceeding and of the obligation to appear. If the record shows that the alien had actual notice of the date and time of the removal hearing, and that the alien failed to appear, these facts would generally be sufficient to show the alien’s inadmissibility. See Matter of G- Y- R-, 23 I&N Dec. 181 (BIA 2001 ).
  • The alien may also be inadmissible if the alien had adequate constructive notice. An alien is on constructive notice if he or she is deemed to have been on notice because the notice of hearing was sent to the alien at the address that the alien provided as required by section 239(a)(1 )(F) of the Act. See id.
  • In short, the alien will be found inadmissible under section 212(a)(6)(B) of the Act only if the alien failed to appear after there was notice that would be sufficient to support the entry of an in absentia removal order. This notice requirement does not mean that the alien can be found inadmissible only if there is an in absentia removal order. Even if the immigration judge did not enter such an order, the alien is inadmissible if the alien failed to appear after receiving proper notice of the proceedings.

Effect of an In Absentia Order

An alien who failed to attend or remain in attendance at a removal may have received an in absentia order of removal under section 240(b )(5) of the Act.  As noted, an alien who fails to appear after proper notice, may be inadmissible under section 212(a)(6)(B) of the Act even if the immigration judge did not enter an in absentia order.  If the immigration judge did enter an in absentia order, that order will generally be sufficient to establish that the alien had sufficient notice of the proceeding and that the alien can be found to have failed to attend the proceeding.  Thus, an alien’s departure after entry of an in absentia removal order will generally establish that the alien is inadmissible under section 212(a)(6)(B) of the Act.  If the alien departs while an in absentia order is in effect, the alien may also be inadmissible under section 212(a)(9)(A) of the Act.

Exceptions and Waivers

“Reasonable Cause” Exception. In addition to the general exceptions to inadmissibility above, an alien who establishes that there was a “reasonable cause” for failing to attend his or her removal proceeding is not inadmissible under section 212(a)(6)(B) of the Act. “Reasonable cause” is defined neither in the statute nor in regulations; however, case law has provided some guidance on what constitutes “reasonable cause.” In general, “reasonable cause” is something that is not within the reasonable control of the alien. See case law summary at the end of this post.

It may also be helpful to compare the alien’s circumstances to the higher standard of “exceptional circumstances” required for the rescission of a removal order, as defined in section 240( e) of the Act.  However, the standard of “exceptional circumstances” is a standard more stringent than the “reasonable cause” standard. In order to justify rescission of a removal order, an alien must establish that “exceptional circumstances” prevented his or her attendance at the removal proceeding. Section 240(e) of the Act defines exceptional circumstances as circumstances beyond the control of the alien, such as: 1) battery or extreme cruelty to the alien or any child or parent of the alien; 2) serious illness of the alien; or 3) serious illness or death of the alien’s spouse, child, or parent.

Whether the alien can meet the burden of proving “reasonable cause” for failure to attend the removal proceeding is determined by the officer adjudicating an application for an immigrant or nonimmigrant visa, for admission to the United States, for adjustment of status, change of status, or extension of stay, or any other benefit under the immigration laws.

The officer determines the issue based on evidence that the alien presents in support of the pending application; no separate application (such as a Form 1-601 ) is needed. In all cases, the burden of proving that the person had reasonable cause not to attend the removal proceedings rests with the alien.

Waivers.  There are no waivers available for this ground of inadmissibility, other than the exceptions or waivers described earlier.

Citing References and Additional Materials

Case Law Addressing “Reasonable Cause”:

Hernandez- Vivas v. I. N. S. , 23 F.3d 1557, 1560 (9th Cir. 1994) – The filing of a motion to change venue does not establish reasonable cause for failure to appear at the removal hearing.

Wijeratne v. I. N. S. , 961 F.2d 1344, 1346-47 (7th Cir. 1992) – The fact that the alien had moved after proceedings were commenced did not provide for reasonable cause to justify the alien’s failure to appear at the removal hearing.

Wellington v. I. N. S. , 108 F.3d 631, 635 (5th Cir. 1997) – The error of an applicant’s counsel in misplacing the hearing notice does not constitute “reasonable cause” for the applicant’s failure to appear.

Matter of Cruz-Garcia , 22 I&N Dec. 1155, 1159 (BIA 1999) – An alien who asserted for the first time on appeal that her failure to appear at a deportation hearing was the result of ineffective assistance of counsel, but who failed to comply with the requirements for such a claim, has not shown “reasonable cause” that warrants reopening of the proceedings.

Matter of N-8 -, 22 I&N Dec. 590, 593 (BIA 1999) – Reasonable cause” is a standard less stringent than the one of “exceptional circumstances;” the alien had provided sufficient and credible evidence that supported the applicant’s contention that she was suffering from a serious illness, which necessitated surgeries later on.

Matter of S-A-, 21 l&N Dec. 1050, 1051 (BIA 1997) – An applicant’s general assertion that he was prevented from reaching his hearing on time because of heavy traffic does not constitute reasonable cause that would warrant reopening of his in absentia exclusion proceedings.

Matter of Patel, 19 I&N Dec. 260, 262 (BIA 1985) – Filing a request for a continuance is not a reasonable cause for the alien’s failure to appear.

Matter of Ruiz, 20 I&N Dec. 91, 93 (BIA 1989) – Illness, properly documented by a physician’s letter, was a valid excuse for the failure to appear.

June 17, 1997, Office of Programs memorandum- Additional Guidance for Implementing Sections 212(a)(6) and 212(a)(9 ) of the Immigration and Nationality Act (Act).