Reopening an In Absentia Removal Order: Exceptional Circumstances

A motion to reopen an in absentia removal order based on exceptional circumstances asks the immigration court to cancel the deportation order entered when you missed your hearing and give you a new one. To win, you have to show that something genuinely serious and beyond your control kept you away, and you have to file within 180 days of the order.¹ The standard is high, the deadline is strict, and the evidence has to be thorough.

What Counts as Exceptional Circumstances

The statute defines exceptional circumstances as events beyond your control that go well past everyday inconvenience. The examples written into the law are a serious illness you experienced, the serious illness or death of your spouse, child, or parent, and battery or extreme cruelty directed at you, your child, or your parent.¹ Other situations can qualify, but those examples set the floor for how severe the event must be.

The statute explicitly excludes “less compelling circumstances,” and that phrase does real work. Car trouble, traffic, oversleeping, losing track of the date, a routine doctor’s visit, or a minor illness that made travel inconvenient will not meet the standard. The test is whether the event made it virtually impossible for you to reach court, not merely difficult. This is where most motions fail.

If a Former Attorney’s Mistake Caused the Absence

Ineffective assistance from a prior lawyer can qualify as an exceptional circumstance, but the Board of Immigration Appeals has imposed specific procedural requirements known as the Lozada requirements. Missing any one of them can sink an otherwise strong motion.

A sworn statement from you explaining what your agreement with the attorney was, what the attorney was supposed to do, and what representations were made or failed to be made.²
Notice to the former attorney describing the specific allegations against them, with a chance to respond. Any response, or confirmation that the attorney refused to respond, is included with the motion.²
A complaint filed with the appropriate attorney disciplinary authority, or a specific explanation of why you did not file one. Vague or self-serving reasons will not satisfy the Board. Saying the attorney already admitted fault, for instance, is not enough.³

The bar-complaint requirement exists partly to prevent collusion, where client and lawyer stage an ineffective-assistance claim to buy time. Valid reasons for skipping it exist, such as the attorney being disbarred or deceased, but the Board scrutinizes whatever explanation you give.³

The 180-Day Deadline

You have 180 days from the date of the in absentia removal order to file.⁴ Immigration judges enforce this strictly. File on day 181 and the court will ordinarily reject the motion without looking at the underlying evidence, no matter how compelling the circumstances.

The clock starts on the date the judge enters the order, not the date you learn about it. Many people don’t find out about an in absentia order until weeks or months later, and by then a large portion of the 180 days may already be gone. Calculating what remains is the first thing to do.

Equitable Tolling

Courts have recognized that the 180-day deadline can sometimes be extended through equitable tolling. It applies when something prevented you from filing on time and you acted with reasonable diligence once you discovered the problem. The most common scenario is ineffective assistance from a prior attorney who failed to inform you about the hearing or the removal order. Nearly every federal circuit has accepted equitable tolling for motions to reopen, and the Supreme Court confirmed that federal courts have jurisdiction to review whether tolling should apply.⁵

To succeed you need two things: extraordinary circumstances that caused the delay, and reasonable diligence once those circumstances ended. Reasonable diligence doesn’t mean acting as fast as humanly possible, but the record needs to show you didn’t sit on your hands. A detailed declaration explaining exactly when you learned of the order and what you did afterward is essential.

Evidence the Motion Needs

The burden of proof falls entirely on you, and judges expect extensive documentation. A bare assertion that something terrible happened will not reopen the order. Every claim needs paper behind it.

Medical Emergency

Hospital admission records, discharge summaries, and a letter from the treating physician explaining the diagnosis, the dates of treatment, and why the condition prevented you from traveling to court. Records showing you were admitted on the hearing date or the days immediately around it carry the most weight.

Death of a Close Family Member

For the death of a spouse, parent, or child, include the death certificate and records placing the death close enough to the hearing date to explain your absence. Funeral home records help establish the timeline.

Battery or Extreme Cruelty

Abuse-related claims accept a broader range of evidence. Your own sworn declaration is a starting point, but corroboration strengthens the case significantly: police reports, protective orders, medical records of injuries, intake forms from domestic violence shelters, photos of injuries, counselor letters, and affidavits from witnesses. The evidence has to connect the abuse or its immediate aftermath to your absence from court on that specific date.

Translations and Personal Statement

Every document in a language other than English requires a certified English translation, and the translator must sign a certificate stating they are competent to translate and that the translation is accurate.⁶ Judges can and do disregard untranslated or improperly certified documents entirely.

Include a personal sworn statement telling the full story: what happened, when it happened, why it kept you from court, and what you did once the emergency passed. Witnesses with direct knowledge should provide their own sworn statements as well.

Filing the Motion

The written motion is a legal argument, not just a description of what happened. It needs to explain why the facts in your evidence satisfy the statutory standard and why the court must reopen the case. It should also include the application for relief you would have pursued at the original hearing, such as an asylum application or a request for cancellation of removal, since reopening only makes sense if you have a viable claim to present.

File with the immigration court that issued the in absentia order, through the EOIR Courts and Appeals System (ECAS).⁷ If the case was already appealed to the Board of Immigration Appeals, the motion may need to go there instead.

Fee and Fee Waiver

The filing fee is $1,065.⁸ If you cannot afford it, request a fee waiver by submitting Form EOIR-26A with documentation of your financial hardship, filed together with the motion.⁹

Address Update and Service on DHS

If your address has changed since your last contact with the court, include Form EOIR-33 to update it. The court sends every ruling to the address on file, so an outdated address means you may never receive the decision.¹⁰

You must serve a copy of the entire motion package, including all attachments, on the ICE Office of the Principal Legal Advisor for the field location that handled your case, and include a certificate of service proving you did so.¹¹ Forgetting to serve DHS is a procedural defect that can get the motion rejected before the judge reads it.

Automatic Stay of Removal

The moment you file, the government cannot deport you while the immigration judge considers the motion.¹ The stay lasts until the judge rules. If the motion is granted, the in absentia order is vacated and a new hearing is scheduled.

If the Motion Is Denied

A denial isn’t necessarily the end. You can appeal to the Board of Immigration Appeals by filing Form EOIR-26. The deadline is 10 calendar days from the judge’s decision in most cases, or 30 calendar days for cases involving an asylum application.¹² These deadlines are tight and strictly enforced.

One warning: the automatic stay does not carry over to the appeal. Once the immigration judge denies the motion, the stay ends, and you can be removed while the BIA considers the appeal.¹³ You can request a separate stay from the BIA, but it is discretionary. That gap is why the initial motion deserves your fullest investment rather than counting on appeal.

If You Never Received Notice of the Hearing

Many in absentia orders come from the person never receiving notice of the hearing at all, not from any emergency. The law treats this as a completely separate basis for reopening, and there is no filing deadline. A motion to reopen based on lack of notice can be filed at any time, whether 180 days or ten years after the order.¹ The filing fee does not apply on this ground either.⁸ If you missed your hearing and believe you never received proper written notice, that is often the stronger path, and it’s worth checking before committing to an exceptional-circumstances motion.

1
Office of the Law Revision Counsel. 8 USC 1229a – Removal Proceedings
2
U.S. Department of Justice. Matter of Lozada, Interim Decision 3059
3
Department of Justice. Matter of Melgar, 28 I&N Dec 169 (BIA 2020)
4
Executive Office for Immigration Review. Immigration Court Practice Manual – Motions to Reopen In Absentia Orders
5
Supreme Court of the United States. Guerrero-Lasprilla v Barr
6
eCFR. 8 CFR 1003.33 – Translation of Documents
7
Executive Office for Immigration Review. EOIR Courts and Appeals System (ECAS) – Online Filing
8
Executive Office for Immigration Review. Types of Appeals, Motions, and Required Fees
9
Executive Office for Immigration Review. EOIR Forms and Fees
10
Executive Office for Immigration Review. Change of Address Form (EOIR-33/IC)
11
eCFR. 8 CFR 1003.23 – Reopening or Reconsideration Before the Immigration Court
12
eCFR. 8 CFR 1003.38 – Appeals to the Board of Immigration Appeals
13
Executive Office for Immigration Review. Board Practice Manual – Automatic Stays