Anyone who has applied for an immigration benefit has received either a written or an oral instruction to immediately provide the INS with their new address and telephone number each time they move. This instruction is based on section 103.5a of INS Regulations which allows the INS to serve an alien with “notice, decisions and other papers” by mailing a copy to the alien at that person’s last known address. This authorization to serve by mail is repeated in the regulations regarding virtually every type of immigration benefit and proceeding, including deportation proceedings.
Despite this requirement, many people who have filed applications or petitions with the INS, such as asylum applications, often forget to tell the INS when they moved. This may lead to disastrous consequences as illustrated by the following case.
In 1993, the INS issued an Order to Show Cause against Adolfo Jose Grijalva, charging him with deport ability on the grounds that he had entered the United States without inspection. The “Order to Show Cause was sent by certified mail/return receipt requested to Mr. Grijalva’s last known address. The Order to Show Cause also told Mr. Grijalva ‘s that he would be notified at a later date of the date and time of his hearing. However, when the court tried to notify Mr. Grijalva of his hearing, the notice, sent by certified mail, was returned unclaimed. Nevertheless, his deportation hearing went forward as scheduled and he was subsequently ordered deported in absentia.
Mr. Grijalva later moved to re-open the proceedings claiming that he had never received the notice of hearing. However, the immigration judge refused to re-open Mr. Grijalva’s deportation proceedings and Mr. Grijalva appealed to the Board of Immigration Appeals.
The Board of Immigration Appeals agreed with the Immigration Judge’s reasoning. The BIA noted that the regulations specifically authorize the court to serve notice via certified mail and that they Order to Show Cause (which Mr. Grijalva admitted he received) contained clear instructions advising Mr. Grijalva immediately providing any change of address and telephone number to the INS. When Mr. Grijalva argued that his failure to receive the notice of hearing was probably the fault of the post office, the BIA stated that government employees are presumed to perform their duties properly and that Mr. Grijalva’s argument did nothing to overcome this presumption and, in any event, Mr. Grijalva’s argument represented a complaint against the post office and had nothing to do with the validity of the INS’s service.
Mr. Grijalva’s case represents a stark illustration of what can happen if you file an application or petition with the INS then forget, for any reason, to inform the INS of your whereabouts. Many people intentionally hide from the INS believing that, if the INS can’t find them, they can’t find them, they can’t be deported. However, Mr. Grijalva’s case illustrates that this belief is not correct. If you apply to the INS for any immigration benefit, then try to hide from the INS the only thing you may accomplish is to give the INS the opportunity to deport you in absentia and deprive you of the opportunity to offer any defense or seek any relief. Many of you may be saying that such proceedings are not fair and should not be allowed to happen in America. I whole heartedly agree. Unfortunately, as illustrated by Mr. Grijalva’s case, such proceedings are currently legal and could result in you’re being ordered deported without even knowing it.
Remember, this situation arises after you have applied to or petitioned the INS for some benefit, such as asylum , and only after you have been served with an Order to Show Cause re: Deportation (“OSC”). If you have never applied for asylum, an immigrant visa, or some other immigration benefit, you probably don’t have to worry. However, if you have ever applied for an immigration benefit, or have been served with an OSC, then moved without informing the INS, you should immediately seek the advice of a competent immigration attorney in order to determine the status of your case and how you should proceed.
