Missed an Immigration Court Hearing? Ask About Reopening Your In Absentia Order

A motion to reopen in absentia removal order asks an immigration judge to undo a removal order entered after a person missed a hearing. Deadlines in removal proceedings can be strict, and the rules that apply depend on the facts of each case, so it is important to contact our team promptly about your situation. Two other routes can apply without that time limit.

This guide explains each route in plain terms. It is written for the person who received the order and for family members helping them. Adriana Gomez is the responsible lawyer for this page. AG Immigration Law P.A. focuses on removal defense.

What an In Absentia Removal Order Means

The person does not have to be present for the judge to act.

Before ordering removal, the government must prove two things. It must show, by clear, unequivocal, and convincing evidence, that the person is removable. The government must also establish, by clear, unequivocal, and convincing evidence, that written notice of the hearing was provided to the person or their lawyer of record (8 U.S.C. § 1229a).

Notice sent to the most recent address the person provided is sufficient (8 CFR 1003.26). That is why many people are surprised. An order can be entered even when the person says they never knew the date. The address on file often becomes the central question.

The order also affects whether the person can stay. That makes timing important. The clock on any challenge starts with the order, so finding the order date is the first step.

How the 180-Day Deadline Works

A motion to rescind an in absentia order based on exceptional circumstances must be filed within 180 days after the order date. The rule says an in absentia order may be rescinded only on a motion filed within 180 days based on exceptional circumstances, or at any time if the person shows lack of notice or custody through no fault of their own (8 CFR 1003.23).

The count starts from the date of the order of removal, not from the day the person learned about it. Mark that date on a calendar right away. Then count 180 days forward.

Because the rule uses the word “only,” a motion on this ground filed after the 180 days generally does not qualify under this route. People who wait to see how things develop can lose this option.

The statute ties the deadline to the reason for the missed hearing. The person must show exceptional circumstances caused the failure to appear to reopen within 180 days; at any time, the person may instead show they did not receive notice or were in custody through no fault of their own (8 U.S.C. § 1229a). Forgetting or running late is not the same thing.

What Counts as Exceptional Circumstances

Exceptional circumstances are serious events beyond the person’s control that caused the missed hearing.

• battery or extreme cruelty to the person, or to a child or parent of the person
• serious illness of the person
• serious illness or death of a spouse, child, or parent

The list above may not cover every circumstance the law recognizes, so the full statutory language should be reviewed for a specific case. Ordinary problems, such as a work conflict or a misread calendar, are the kind of less compelling circumstances the definition does not cover.

The event must be the reason for the absence. Timing matters. A judge will look at when the event began, how long it lasted, and how it lines up with the hearing date. Keep dated records of each step.

When the 180-Day Limit Does Not Apply

Lack of notice is often the question that matters most. Notice to the most recent address the person gave the court is generally sufficient (8 CFR 1003.26). Address changes follow their own rule. Within five days of any change, the person must give written notice on Form EOIR-33 to the immigration court (8 CFR 1003.15). A separate federal law requires registered people to report address changes within ten days (8 U.S.C. § 1305).

If notice went to an address the person had already left, that fact can be central to the motion. Gather every address the person used, with dates.

If you think a relative may be held by ICE, the Online Detainee Locator System is the official ICE tool for locating people in immigration detention.

Evidence That Supports the Motion

Strong motions rely on documents that place the event next to the hearing date. A clear timeline with proof is the core of the file.

Gather these items:

• the removal order and the hearing notice, including the address printed on each
• every address the person used, with dates, and any Form EOIR-33 filed
• medical or hospital records for illness, or a death certificate for a death in the family
• police reports or protective-order records, for battery or cruelty
• custody or detention records, if the person was held
• proof of when the event began and when it ended

Every written statement should match the documents. Inconsistent dates or details can hurt a motion. Check each date against the records before anyone signs a statement.

How the Motion Is Filed

Motions in immigration court are handled case by case, and how the court treats one depends on the facts of your situation and the judge’s decision. The rule says filing a motion under this provision stays removal pending the judge’s decision (8 CFR 1003.23). A person may file only one motion under that paragraph, so the first filing should be complete.

The government may respond. A motion is deemed unopposed unless a timely response is made (8 CFR 1003.23). The judge then decides whether to grant or deny the motion.

If the 180-Day Window Has Passed

The exceptional-circumstances route generally closes after 180 days, but other routes may remain. The notice and custody routes do not carry the same time limit under the statute.

A general motion to reopen is due within 90 days of the final order, subject to listed exceptions (8 CFR 1003.23). A motion to reopen cannot be made by or for a person who is the subject of removal proceedings after that person has left the United States. Leaving the country after filing withdraws the motion (8 CFR 1003.23).

There is also a 10-year bar. If the person received oral notice of the consequences of missing court, a final in absentia order can bar certain forms of relief for 10 years. The 10-year limit on discretionary relief does not apply when the failure to attend was because of exceptional circumstances.

Which route fits depends on the facts of each case. The notice history, the custody history, and the reasons for the missed hearing all matter.

Next Steps for Your Family Member’s Case

The first steps are to find the order date, the hearing notice, and every address used for notices. Early planning keeps more options open.

Use this checklist:

• the date of the removal order, and the date 180 days later, marked on a calendar
• the hearing notice and the address printed on it
• every address the person has used since, with dates, and any Form EOIR-33 filed
• dates of any serious illness, death, cruelty, or custody that may have kept the person from court
• if the person may be detained, a search in the ICE locator