The denial of many types of immigration applications carry the risk of a referral to Immigration Court (IC) Removal Proceedings if the alien is out of status at the time of the denial. For example, the denial of the asylum application of an out of status alien by the USCIS Asylum office, requires that the alien's matter be forwarded to to the IC. The denial of an adjustment of status (green-card application) based upon the out of status alien's marriage to a US Citizen will also often result in referral to IC.
This transition from USCIS to IC is critical, though aliens do not always understand the significance or importance of it. When an alien is referred to IC, the Government prepares a Notice to Appear (NTA), which makes certain allegations against the alien and charges the alien under one or more sections of the Immigration and Nationality Act, of being "removable" from the United States. The NTA also sets a date, time and place of a "Master Calendar Hearing" (which is like an arraignment in criminal court), or notifies the alien that he or she will be informed of the date time and place of the master hearing at a later time. The NTA can be served on the alien in person by an immigration employee, or forwarded to the alien's last known address of record from the alien's file. Should the alien fail to attend the master hearing, the Immigration Judge (IJ) will typically enter an order of deportation against the alien in the alien's absence. The failure to appear in IC and an in absentia deportation/removal order has certain negative consequences to the alien and will strip the alien of eligibility for certain forms of immigration benefits and render the alien inadmissible to the United States for 10 years, should the alien depart the United States.
Hence, an alien who is careless in monitoring his or her mail after the denial of their case by USCIS, or who ignores an NTA, may find him or herself in an extremely weakened position in terms of their ability to receive immigration benefits at a later time. Some aliens decide, after their application has been denied by USCIS, that they will not consult with their attorney again, and will not read their attorney's advisory letters. They will sometimes instead, discuss their circumstances with friends in their community, who advise them, not based upon law, but upon their own speculation. Such aliens will sometimes leave the United States without attending their court proceedings, imagining that the Government will be happy with their departure, and will allow their return to the US once the alien has reason to return. Aliens also sometimes do not appreciate or remember (in spite of the attorney's very careful discussion of the limitations of his services in his fee agreement) that immigration attorneys do not typically commit to representing an alien through all stages of their potential immigration journey, since that journey can often take years and in some cases over a decade to completion. Thus, an attorney who represents an alien in a marriage case, usually has not committed in his fee agreement with the alien, to represent the alien in the IC. Some such attorneys have never appeared in IC and would not be prepared to represent aliens in that forum. Other immigration attorneys with IC experience (such as myself) would require the alien to enter into a new agreement to cover that forum. Hence, if the alien has not re-hired his attorney, or retained some other attorney for court, and fails to appear for the master hearing, there will be no one in court on the alien's behalf at the time of the master hearing to speak for the alien. Where the alien shows up to the master hearing without an attorney, most, if not all IJs will allow the alien some amount of time to retain a lawyer for court. It is always better for the alien to attend court in the company of his or her attorney.
I have had the displeasure of having had to advise some aliens, years after their departures from the United States and after having not heard from them following a denial of their applications by USCIS, that their failure to attend court and request voluntary departure from the IJ would likely prevent them from, or pose serious obstacles to their reentry into the US for many years to come. Some of these aliens would have been eligible for relief in IC which they almost certainly would have been granted, had they simply stuck that process out with proper legal representation.
Aliens must not ignore an NTA and must appear in court. Aliens should also always discuss thoroughly the meaning of a denial of an immigration application and its potential to result in an NTA with an immigration attorney. Aliens must monitor their mail for follow up communications or NTAs from the Government after the denial of an application. Aliens should have an attorney review all such follow up communications or NTAs. Aliens referred to court should hire a qualified and experienced attorney to represent them in court prior to the first hearing in court. Again, regardless of whether the alien hires an attorney or not, he or she must appear in court at all scheduled court hearings, unless the court specifically exempts their appearance.
Duane M. Hamilton, Esq.
