Given the current climate and anti-immigrant sentiment these days, people placed into proceedings are understandably petrified of going to immigration court. There is a common misconception that once somebody summoned to court shows up, he/she will be summarily removed. This is not accurate at all. The whole point of going to court is to protect your constitutional due process rights and hold the government to its burden before an impartial judge. In fact, the consequences of not showing up for court without good cause are legally and practically more severe. If anything, an individual who does not show up is far more likely to be expelled without recourse than a person who sees the process through with competent counsel.
In essence, when an individual fails to appear for his/her court hearing (called the Master Calendar Hearing), the Immigration Judge is likely to order the individual (called the Respondent) removed “in absentia,” in other words, in his/her absence. Once a Removal Order has been issued, the individual has lost nearly all right to relief/recourse before the court. In a way, the person has already had his/her day in court but opted not to show up for it. This is significant because if the person does not leave the United States, the Removal Order will become unexecuted unless and until a departure is effectuated. The individual will essentially become a fugitive and if encountered by Immigration and Customs Enforcement (“ICE”) will not be released or scheduled to see a judge. Any forms of relief that the person would have potentially been eligible for, such as cancellation of removal (also known by its grossly inaccurate misnomer “ten-year law”) or adjustment of status, will not be able to be pursued since there will not be any further court hearing. Moreover, any efforts to possibly reopen the case will be formidable, considering the sluggish pace of the courts against the swift, inexorable impetus of ICE to execute the order.
Legally speaking, there are extensive ramifications as well. An individual ordered removed in absentia will be deemed inadmissible for a period of five years under INA 212(a)(6)(B). This means that once the person has departed the United States, he or she will not qualify to come back for at least five years. This issue is especially troublesome for those considering pursuing the I-601A Provisional Waiver. Technically speaking, the I-601A cures only the three and ten-year unlawful presence grounds of inadmissibility. However, the five-year bar for failing to appear is found in a different provision of the INA and is not waived by the I-601A since it is a separate ground of inadmissibility. For example: assume a person who does not appear for his court case and is ordered removed in absentia does not leave the US and subsequently marries a United States Citizen; he then reopens his court matter, gets it administratively closed, applies for and receives an approval on a provisional waiver, recalendars his court case and gets it terminated so he can consular process. It is entirely conceivable for a person like this to still have problems at the consulate abroad and be refused a visa under the five-year bar unless it can be demonstrated (to the consulate’s satisfaction) that the failure to appear was due to “reasonable cause.”
Given the stakes, the best thing you can do if you are unlucky enough to have been served with a Notice to Appear is to consult with an immigration attorney and learn what your rights are. It is better to confront the problem with a legal advocate than ignore it, causing potentially irreparable detriment to your ability to stay here. 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.