In Absentia Order of Removal: Grounds for Reopening and Filing

An in absentia order of removal is a deportation order an immigration judge issues when you fail to appear at a scheduled removal hearing. It carries the same legal force as an order entered after a full hearing, meaning ICE can arrest and deport you without any further court proceedings. You can challenge it by filing a motion to reopen with the immigration court that issued it, on one of three grounds: you did not receive proper notice of the hearing, exceptional circumstances prevented you from attending, or you were in federal or state custody at the time. Each ground has its own deadline, and moving quickly matters.

How to Confirm You Have an In Absentia Order

Many people learn about an in absentia order only when they run into immigration authorities or apply for a benefit. You can check your case status through the Executive Office for Immigration Review’s Automated Case Information System online or by calling 1-800-898-7180.¹ If the system shows a completed removal order on a date you did not appear, you likely have one.

Every day the order stands is a day you can be arrested and removed. Before contacting immigration authorities in any other way, talk to an immigration attorney.

What the Order Costs You

The order itself makes you immediately deportable. Beyond that, it triggers a ten-year bar on most discretionary immigration relief, including cancellation of removal, voluntary departure, adjustment of status, change of nonimmigrant classification, and registry. This bar applies if the government gave you oral notice, in a language you understand, of the hearing’s time and place and the consequences of not appearing.² If the government cannot show it gave you that oral notice in your language, the ten-year bar may not apply even though the removal order itself stands.

If you leave or are removed from the United States after missing a hearing without reasonable cause, you also become inadmissible for five years from the date of your departure or removal.³ That bar runs on top of any other inadmissibility grounds and can prevent you from obtaining a visa to return.

How the Order Got Issued in the First Place

An immigration judge can enter an in absentia order if you fail to appear and the government proves, by clear and convincing evidence, that you received proper written notice and that you are removable.² The Notice to Appear must state the time and place of the hearing and warn you what happens if you miss it.⁴ But notice only has to go to the most recent address you provided. If notice went to the right address on file, you are treated as properly notified even if you never opened the envelope.

The Three Grounds for Reopening

The only way to undo an in absentia order is a motion to reopen filed with the immigration court that entered it.⁵ If the judge grants it, the removal order is rescinded and your case goes back on the calendar. The statute recognizes three grounds.

Lack of Proper Notice

You can argue the government did not give you the notice the law requires. That might mean notice was sent to the wrong address, that mail was returned, or that the Notice to Appear itself was defective. A motion on this ground has no filing deadline and no filing fee.²⁶

Two Supreme Court decisions have strengthened notice challenges. Pereira v. Sessions (2018) held that a Notice to Appear missing the specific time or place of the hearing is not a valid notice under the statute. Niz-Chavez v. Garland (2021) went further, requiring that the information appear in a single document rather than pieced together across multiple mailings. If your Notice to Appear was missing time-and-place information, or if that information came in a separate letter, you may have a strong basis to reopen.

Useful evidence includes copies of the Notice to Appear showing missing information, returned mail, sworn statements from household members who confirm no notice arrived, or proof you filed a change-of-address form the court failed to process.

Exceptional Circumstances

If notice was proper but something beyond your control kept you from attending, you can seek rescission on this ground. The statute names serious illness affecting you or a close family member, the death of a spouse, child, or parent, and battery or extreme cruelty directed at you or your family.² The list is illustrative and judges have discretion to recognize other circumstances, but the statute explicitly excludes “less compelling circumstances.” Minor inconveniences will not qualify.

This ground has a hard deadline. You must file within 180 days of the date the in absentia order was entered.² A filing fee of $1,065 applies, and you can request a fee waiver if you cannot afford it.⁶ Supporting evidence should directly document what stopped you from appearing: hospital records, death certificates, police reports, or similar records.

Federal or State Custody

If you were incarcerated in a federal or state facility at the time of your hearing and the failure to appear was not your fault, you can file a motion to reopen at any time, with no deadline and no filing fee.²⁶ You will need incarceration records showing you were in custody on the hearing date.

When the Missed Hearing Was Your Attorney’s Fault

If your attorney failed to tell you about the hearing, gave you the wrong date, or otherwise dropped the case, this does not fit neatly into the statutory grounds, but immigration courts have long recognized a separate basis for reopening under Matter of Lozada. To succeed on this claim, you generally need to:

Submit a sworn statement describing what the attorney agreed to do, what they actually did or failed to do, and what they told you about your case and hearing dates.
Inform the attorney whose performance you are challenging about the allegations and give them a chance to respond.
File a complaint with the appropriate state bar or disciplinary authority, or explain why you have not.

You must also show prejudice, meaning the attorney’s failure likely affected the outcome: that you had a viable defense or form of relief you were prevented from pursuing. Some federal courts have relaxed the strict Lozada requirements when the attorney’s incompetence is obvious from the record, but do not count on that flexibility.

When the 180-Day Window Has Closed

If you cannot show a notice defect or a custody issue and the 180-day exceptional-circumstances deadline has passed, two narrower options remain.

Changed Country Conditions

If conditions in your home country have changed materially since your order was issued, you can file a motion to reopen seeking asylum, withholding of removal, or protection under the Convention Against Torture. These motions are exempt from the normal time and numerical limits, as long as the evidence of changed conditions is material and was not available during your earlier proceedings.⁷ This will not erase the in absentia order itself, but it can provide a path to protection from removal.

Joint Motion With DHS

If the Department of Homeland Security agrees, both sides can file a joint motion to reopen that is not subject to any time or numerical limits.⁷ DHS is under no obligation to agree. In practice, this requires a compelling reason, such as clear evidence that the original order was entered improperly or that you have strong equities favoring reopening.

Filing the Motion

The motion is a written filing submitted to the immigration court that issued the order, with a copy served on the DHS Office of the Principal Legal Advisor. Include your full name, current address, and telephone number, a clear explanation of the ground you are relying on, and why you missed the hearing. Attach all supporting evidence as exhibits: returned mail, medical records, incarceration documents, sworn statements.⁵

File an updated change-of-address form (EOIR-33/IC) with the motion so the court has current contact information going forward.⁸ It is easy to overlook, and skipping it can recreate the same notice problem if the case is reopened.

Once a properly filed motion is pending, your removal is automatically stayed. ICE cannot deport you while the immigration judge considers the motion, and this automatic stay applies to motions based on any of the three statutory grounds.²

If the Judge Denies the Motion

A denial is not the end. You can appeal the decision to the Board of Immigration Appeals. You can also seek judicial review by filing a petition with the federal circuit court that covers where your case was heard. Judicial review of in absentia orders is limited: the court can consider only whether you received valid notice, the reasons you did not attend, and whether you are actually removable.²

1
Executive Office for Immigration Review. Immigration Court Information
2
Office of the Law Revision Counsel. 8 USC 1229a – Removal Proceedings
3
Office of the Law Revision Counsel. 8 USC 1182 – Inadmissible Aliens
4
GovInfo. 8 USC 1229 – Initiation of Removal Proceedings
5
Executive Office for Immigration Review. EOIR Policy Manual – 4.9 Motions to Reopen In Absentia Orders
6
United States Department of Justice. Types of Appeals, Motions, and Required Fees
7
United States Department of Justice. OCIJ Immigration Court Practice Manual – 4.7 Motions to Reopen
8
Executive Office for Immigration Review. 5.9 – Motions to Reopen In Absentia Orders