In this climate of increased immigration enforcement, more and more undocumented aliens are being picked up at an alarming pace. Those with outstanding removal and deportation orders are particularly at risk, as they are essentially considered fugitives by Immigration and Customs Enforcement, the enforcement arm of the Department of Homeland Security. It is tempting for some in this situation to purposefully evade the immigration authorities by moving without informing the government. However, individuals should be cognizant of the legal consequences of such conduct. The penalties related to removal are codified in Immigration and Nationality Act Section 243 and penalize willful failure to depart the US pursuant to a removal order. INA 243(a)(1)(A) provides that any alien against whom a final order of removal is outstanding who “willfully fails or refuses to depart from the United States within a period of 90 days from the date of the final order” shall be fined or imprisoned not more than four years (and in some cases, 10 years). These penalties extend as well to those willfully fail or refuse to present oneself for removal, as well as to other people who connive, conspire, or take any other action “designed to prevent or hamper” another person’s removal.
Penalty for Failing To File Change of Address
Even if one has not been ordered deported, every non-US citizen should be mindful of INA section 265, pertaining to Notices of Change of Address. Under the immigration law, all non-US citizens within the US “required to be registered” under Title 7 of the INA are obligated to report a change of address and keep the government informed as to their current address. While failing to file a change of address on Form AR-11 may not sound like a big deal, the penalties for failing to do so can be severe. In fact, such failure technically constitutes a criminal offense: INA section 266(b) notes that such violations constitute a misdemeanor and shall, upon conviction, expose the alien to a fine not to exceed $200 and or thirty days imprisonment. Aside from the criminal penalties, the INA also provides: “irrespective of whether an alien is convicted and punished as herein provided, any alien who fails to give written notice [of a change of address]…shall be taken into custody and removed [in accordance with chapter 4 of the INA]…unless such alien establishes to the satisfaction of the Attorney General that such failure was reasonably excusable or was not willful.” Put another way, failure to file a change of address is a deportable offense. See also INA section 237(a)(3)(A). It is the alien’s burden to establish that the failure was excusable or not willful.
In this day and age, it would be a grave mistake to underestimate any violation of the Immigration and Nationality Act, no matter how technical or seemingly trivial. Pursuant to the Trump Administration’s emphasis on enforcement, DHS is directed to seek out and target for removal those who fall within its “Enforcement Priorities” as now defined in President Trump’s Executive Order Enhancing Public Safety in the Interior of the United States. At the top of that list are those who “have committed acts that constitute a chargeable criminal offense.” Since failure to file a change of address is technically a misdemeanor, enforcement of this provision may see a marked increase in the years to come. Notwithstanding the rhetoric put out by DHS, the statistics bear out that a considerable number of people being picked up by ICE do not have criminal convictions.
Whether one has an outstanding removal order or has failed to file a change of address, a more prudent option than hiding one’s head in the sand is to see an immigration attorney and learn one’s options. In some cases, such as change of address violations, the solution may be simple, and there may be valid reasons that go towards mitigating the failure. With respect to removal orders, there may be legal defects underpinning the order or a change in one’s circumstances that create viable grounds to potentially reopen the order. An attorney versed in the field will be able to assess your options and determine whether the immigration situation can be repaired.
The above is general information only and not to be relied upon as legal advice. It does not create an attorney client relationship nor should it be relied upon as advice in lieu of consultation with an attorney.