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.