Motion to Reopen an In Absentia Removal Order in Florida

A motion to reopen an in absentia removal order is a written request asking the immigration court to open a closed case again. An in absentia order means the judge ordered removal after the person missed a scheduled hearing. In Florida, the deadline, the reason for the missed hearing, and where the motion is filed all shape what happens next. This page explains those basics in plain terms, so you know the questions to ask and the papers to gather.

What an In Absentia Removal Order Means

An in absentia order is a removal order entered when a person does not attend a hearing. The judge can enter it only if the government proves the person is removable and that proper written notice was given. The rules say the government must show this by clear, unequivocal, and convincing evidence.

Notice counts as proper when it goes to the most recent address the person gave the court. If the person never gave an address as required, no written notice is needed before the judge proceeds.

That last rule surprises many families. A person can lose a case without ever seeing the hearing notice. The notice may have gone to an old address that was never updated.

If you are not sure an order exists, check the court case record first. The dates on that record set your deadlines, so start there before you decide anything.

How a Motion to Reopen Differs From Other Options

A motion to reopen asks the court to hear the case again. It lets the person present the facts or the application they could not present at the hearing. The rules for this motion are set out in the immigration court regulations.

A motion to reconsider is a different request. It asks the decision maker to review the decision for an error. A motion to reopen, by contrast, must state the new facts that will be proven at a hearing to be held if the motion is granted. The same regulation generally limits a party to one motion to reopen and one motion to reconsider, subject to the exceptions in paragraphs (b)(1) and (b)(4), so the choice matters.

An appeal goes to the Board of Immigration Appeals (the Board), not to the immigration judge. The Board also has its own rules for reopening its decisions. The right path depends on which decision was made and when it was made.

Deadlines: 180 Days, Exceptional Circumstances, and No-Notice Cases

For a missed hearing caused by exceptional circumstances, the deadline and filing requirements depend on the facts of each case, so timing should be reviewed promptly. The statute allows a motion to reopen within 180 days after the date of the removal order, if the failure to appear was because of exceptional circumstances.

The general rule for a motion to reopen is shorter. The immigration court regulation sets a 90-day limit from the final order of removal, unless an exception applies.

Lack-of-notice arguments have their own timing rules, which can differ from other grounds, so the order date alone may not determine every deadline.

Calendar every deadline from the date of the order, not from the day you first heard about it. Many families lose time because they count from the day they learned of the order.

There is also a longer penalty to know.

Grounds: Lack of Notice and Exceptional Circumstances

The statute defines exceptional circumstances. They include serious illness of the alien and serious illness or death of an immediate relative of the alien. The circumstance must also be beyond the person’s control. The statute excludes “less compelling circumstances,” so ordinary reasons do not meet the test.

For a lack-of-notice argument, the address record is central. The address rules require a change of address on Form EOIR-33 within five days of the change. A separate federal statute requires registered persons to notify the government in writing of an address change within ten days.

Gather proof of every address the person gave, every filing of Form EOIR-33, and the mailing details for each notice. These records show where the court sent notices and whether the address was current.

For exceptional circumstances, use documents that are specific and dated. Medical records, death certificates, and records showing the timing of the event help. The motion should also explain clearly why the person did not appear.

The motion must state the new facts it relies on. The immigration judge may deny a motion to reopen even when the moving party has established a prima facie case for relief, because the decision is within the judge’s discretion.

Where and How the Motion Is Filed in Florida

If the case is still before the immigration court, the motion goes to the court that holds the Record of Proceeding. That is the court with administrative control over the file. For many Florida cases, that court is in Miami or Orlando.

If the Board already decided the case, the motion goes to the Board. The Board reopens its own decisions on a written motion.

A complete filing package usually includes the motion, the supporting evidence, and proof that the other side received a copy. A motion that requires a filing fee must include proof of payment or a fee waiver request. A motion filed in another language must include a certified English translation.

Lawyers and accredited representatives must file electronically with the immigration courts in cases eligible for e-filing. An unrepresented person may file electronically too, but is not required to do so.

Two rules can change the result. Whether filing a motion affects removal depends on the type of motion and the circumstances of the case. So the effect of a pending motion depends on the facts and the stage of the case.

The second rule is about departure. A motion cannot be made by or for a person who has left the United States. If the person departs after a motion is filed, that departure withdraws the motion.

If the Board Already Dismissed the Appeal

Many families learn about the removal order late. The case may have reached the Board before anyone knew about the order.

A motion to reopen before the immigration court must be in English or accompanied by a certified English translation. It must include proof of service on the other side. If the moving party, other than DHS, is represented, a Form EOIR-28, Notice of Appearance as Attorney or Representative Before an Immigration Judge, must be filed with the motion.

Confirm which decision is final and the date it was issued. Every later step depends on that date. Then compare it with the date of the removal order and the date the family first learned of it.

Gathering Your Case Details Before You File

Start a folder before anything else. Put in the removal order, every hearing notice, and the envelopes or mailing records if you have them. Add every address the person gave the court, and any Form EOIR-33 filed.

Include the Board decision if one exists. Add any medical records, death certificates, or other proof that ties the missed hearing to a serious circumstance.

If the person is held in immigration detention, the Online Detainee Locator System helps locate someone held by ICE.

Write a dated timeline. Note when you learned of the order, where the person was, what papers you have, and who received which notices. A clear timeline makes the motion easier to prepare.

Also know the cost risk. If someone is ordered removed in absentia and later arrested by ICE, a fee under federal law applies. The current fee amount should be confirmed before filing, since fees can change.

Frequently Asked Questions

Talk With AG Immigration Law P.A. About Your Missed Hearing

If you are reading this for a family member, you may be worried about a removal order you never expected. That worry is common, and the first steps matter.

AG Immigration Law P.A. focuses on removal defense, including motions to reopen. Adriana Gomez is the responsible lawyer for this page. To talk about your case, contact the office by form, phone, or WhatsApp, or book a paid consultation.