AG Issues Proposed Rule on Requirements That Immigrants Report Changes of Address

IMMIGRATION LAW & POLICY

Removal Procedures and Defenses

AG ISSUES PROPOSED RULE ON REQUIREMENTS THAT IMMIGRANTS REPORT CHANGES OF ADDRESS
Immigrants' Rights Update, Vol. 16, No. 5, September 10, 2002

The attorney general has issued a proposed rule that would require non–U.S. citizens who apply for work authorization or any immigration benefit to acknowledge that they have received notice that they are required to inform the Immigration and Naturalization Service of any change of their address. The rule, which was issued July 26, 2002, states that the INS will use the address provided by the immigrant for all purposes, including (should it be necessary) the mailing of a Notice to Appear (NTA), the document that notifies a person that he or she is required to appear in immigration court.

By issuing this rule, the attorney general is responding to a ruling of the Board of Immigration Appeals that bars immigration judges from entering in absentia orders where the evidence shows that the NTA was served by mail but not received by the respondent and the respondent had not been advised of the obligation to keep the immigration court informed of his or her address. The new rule will require the INS to update over three dozen immigration forms that will now be required to contain an acknowledgment.

Section 265 of the Immigration and Nationality Act currently requires all noncitizens over 14 years of age who remain in the U.S. for 30 days or longer to report a change of address to the INS within ten days of any move. Under INA section 266(b), persons with an obligation to report address changes who fail to do so are guilty of a misdemeanor, punishable by a fine of no more than $200 and imprisonment of no more than 30 days. Up until now, the INS has not systematically notified noncitizens of these requirements, nor has it systematically enforced them.

Publicity regarding the proposed rule has alarmed immigrant communities, provoking fears on the part of long-term residents that they may be prosecuted for past failures to report address changes. In fact, the proposed rule does nothing to further criminal enforcement of this requirement, since the rule is limited to prospectively requiring noncitizens applying for immigration benefits to acknowledge that they have been notified of the obligation to inform the INS of changes of address for purposes of ensuring their being subject to possible service of an NTA. However, the U.S. Justice Dept. has not sought to dispel concerns in immigrant communities by, for example, publicizing assurances that past failure to comply with the change-of-address notification requirement will not be prosecuted criminally.

Not surprisingly, the announcement of the rule greatly increased the number of change-of-address forms sent to the INS. According to a Sept. 6, 2002, New York Times article, change-of-address notices received by the INS went from 2,800 per month prior to Sept. 11, 2001, to 19,800 per month subsequently, to 30,000 per day following the July 26, 2002, announcement of the proposed rule. According to the article, an INS spokesperson stated that the agency has received 870,000 reports since July 26 and has been able to process only 100,000 of them. The reports are not processed into a database but instead are sent to be included in the individual's file.

According to the supplementary information published with the proposed rule, the reason for the rule is the decision of the BIA in Matter of G-Y-R, 23 I. & N. Dec. 181 (BIA Oct. 19, 2001). When an individual, despite proper notice, fails to appear for a removal hearing, the immigration judge may order him or her removed in absentia (i.e., despite the fact that the person is not present to defend him/herself). In G-Y-R-, the BIA held that an IJ could not enter an in absentia order where the evidence indicated that the NTA, although mailed, was returned by the post office as undeliverable. The INS contended that it should have been sufficient that the NTA was served on the respondent's last known address (obtained as a result of her having applied for asylum), and that the respondent had an obligation to report any change of address under INA section 265. However, the BIA found that, because the respondent never received notice that the consequences of not reporting a current address could include entry of an in absentia order, such an order could not be based on her failure to report an address change. (For more regarding G-Y-R-, see "BIA: In Absentia Removal Order May Not Be Entered Where the Record Reflects That Respondent Did Not Receive Mailed NTA," Immigrants' Rights Update, Nov. 16, 2001, p. 7.) The new rule is intended to provide such notice, in order to allow service of an NTA on the last address provided by a noncitizen to be sufficient to support entry of an in absentia order if the individual fails to appear for the removal hearing.

67 Fed. Reg. 48,818 (July 26, 2002).