Reopening Removal Proceedings
By James E. Root
Los Angeles, CA

Mr. Gulzar Singh, a native and citizen of India, entered the US in 1997, with a visitor visa. He remained in the US past the authorized time and filed an asylum application. Subsequently, Mr. Singh wrote to the asylum office withdrawing his asylum application stating he would try to live in a different city in his home country. Although he did not provide the asylum office with a forwarding address, he departed the US on May 1, 1998.
Two months later, the asylum office served a Notice to Appear (NTA), which is the charging document placing someone into removal proceedings, to Mr. Singh’s last known US address. The NTA alleged Mr. Singh was removable as an alien who stayed in the US longer than permitted. When Mr. Singh did not appear for his removal proceedings hearing, the Immigration Judge ordered him removed in absentia.
Mr. Singh re-entered the US in 1999. In 2002, he filed a motion to reopen his removal proceedings and to rescind the in absentia removal order. His motion was denied. The Board of Immigration Appeals held there was no jurisdiction to adjudicate the motion because it was filed after Mr. Singh departed the US. Then he filed a Petition for Review with the Ninth Circuit US Court of Appeals. The Ninth Circuit granted the petition.
Generally, an alien who leaves the US after removal proceedings have already been initiated is barred from filing a motion to reopen. But that rule did not apply in Mr. Singh’s case because he departed from the US before removal proceedings began, and he established he was not in the US when the NTA was mailed, and so he never received the required statutory notice or the notice of change of address notification. Accordingly, his motion to reopen should have been granted.
(Mr. James E. Root practices exclusively immigration law. He has offices in the Los Angeles and Orange Counties. For a free initial consultation please contact 1(888) ROOT-LAW or visit


Editor: Akhtar M. Faruqui
2004 . All Rights Reserved.