In Absentia Removal Orders: Can Your Case Be Reopened?
Updated
If an immigration judge ordered you deported after a hearing you missed, the decision is called an in absentia removal order. There are circumstances in which you can ask the court to reopen the case and set that order aside. The reason you missed the hearing, the notice you received, and the date of the order help determine whether that request is available.
An order can remain enforceable even if you first learn about it years later. The sections below explain the main grounds for reopening, the deadlines, and when filing a motion pauses removal. If ICE has detained you or scheduled your removal, get legal advice promptly and include that information when you contact the lawyer.
What is an in absentia removal order?
It is a removal order entered when you do not appear for an immigration court hearing. A motion to reopen can ask the judge to set the order aside, but the reason for missing court and the applicable deadline matter. In removal proceedings under section 240 of the Immigration and Nationality Act, filing a motion to reopen to rescind an in absentia order automatically stays removal while the immigration judge decides that motion. Other filings and proceedings follow different rules.
Start With the Decision the Court Entered
The written order identifies the court, the decision date, and the proceeding in which the judge acted. Keep the hearing notice with it, along with any later ruling or earlier request to reopen. EOIR’s case-information service can help identify the case, but contact the court for the decision if the online information is incomplete or conflicts with your documents.
A motion to reopen asks the judge to return the case to court. When the motion seeks rescission of an in absentia order, it also asks the judge to set aside the order because of the circumstances of your absence. A successful request allows proceedings to continue; you will still need to address the underlying immigration charges and any application for relief.
The rules below concern removal proceedings under section 240 of the Immigration and Nationality Act. Older deportation or exclusion proceedings have different rules. The date and type of proceeding must be checked before applying a deadline or stay rule.
Reasons to Ask the Judge to Set Aside the Order
In section 240 removal proceedings, the law provides three grounds for seeking rescission of an order entered in your absence. The evidence must show why the ground applies to your hearing. The timing rule is different for exceptional circumstances than it is for lack of notice or qualifying government custody.
Exceptional circumstances: generally within 180 days
Exceptional circumstances are circumstances beyond your control serious enough to excuse the absence, such as serious illness or the serious illness or death of a spouse, child, or parent. The motion generally must be filed within 180 days of the order. That period starts when the order is entered, not when you discover it. Medical records or other evidence should connect the event with your inability to attend; an emergency’s label alone is not enough.
Lack of legally required notice: a motion may be filed at any time
This ground requires showing that you did not receive the notice required by law. The court examines the hearing notices and your compliance with address requirements. A missing date on the initial Notice to Appear is not sufficient if you received proper notice of the hearing you missed. The missed-hearing and notice guide explains the delivery and address records that can support the account.
Federal or state custody: a motion may be filed at any time
You must show that you were in federal or state custody and that the failure to attend was through no fault of your own. Keep custody dates, transfer records, and evidence of attempts to attend or notify the court.
These rules appear in EOIR’s in absentia motion guidance. The regulation generally permits only one motion under this rescission provision. Have any earlier motion reviewed before filing another. Other reopening grounds, such as qualifying changed country conditions, have their own requirements and do not use this 180-day rule.
When Does Filing Pause Removal?
Filing a motion to reopen to rescind an in absentia order in section 240 removal proceedings automatically stays removal while the immigration judge decides the motion. This means ICE cannot carry out the removal during that period. It does not mean the court has granted reopening or ordered release from detention.
That protection does not extend to every request to reopen. A motion based on changed country conditions, for example, does not automatically stay removal. When a separate stay is needed, submitting the request does not provide protection by itself; the stay must be granted.
If you are facing removal, ask the lawyer to confirm what has actually been filed and which stay rule applies. Preparing a motion or hiring a lawyer does not create the filing protection. If the judge denies the rescission motion in removal proceedings, the automatic stay should not be assumed to continue during an appeal; any further stay needs prompt review.
The governing provisions are in 8 CFR 1003.23. EOIR also explains requests for discretionary stays and stays before the Board of Immigration Appeals.
What to Bring for a Review of the Order
A request to reopen needs both the court history and evidence explaining the absence. Keep original documents and bring copies or clear photographs for review. Records that appear unfavorable can also matter, particularly an earlier motion, a notice sent to a representative, or an address update filed with the wrong agency.
The order and earlier filings
Bring the removal order, any appeal or reopening request, filing confirmations, and later decisions. Include notices from ICE about reporting, detention, or removal.
Hearing notices and address records
Bring the Notice to Appear, hearing notices, envelopes, returned mail, address-change forms, and proof of submission. Write down where you lived and when you moved.
Evidence explaining the absence
Gather medical or custody records, relevant messages, travel or connection records, and statements from people with direct knowledge. Record when you first learned about the missed hearing and what you did afterward.
Current immigration and detention information
Include your A-number, immigration applications, family information relevant to possible relief, and detention location if applicable. Tell the lawyer if you fear returning to your country.
If your relative is now in custody, see help after ICE detention. A final order may also change the available release procedures; our no-bond guide distinguishes those custody rules.
Questions About Reopening an In Absentia Order
Can I appeal the original in absentia order directly to the BIA?
In section 240 removal proceedings, the Board of Immigration Appeals does not hear a direct appeal of the original in absentia order. The usual procedure is a motion to reopen asking the immigration judge to rescind it. A denial of that motion may be appealable; have the decision and applicable deadline reviewed immediately.
Has it become too late if the order is more than 180 days old?
The age of the order does not answer the question by itself. The 180-day deadline applies to rescission based on exceptional circumstances; a motion based on lack of required notice or qualifying federal or state custody may be filed at any time. Other grounds or legally recognized exceptions require their own analysis. Bring the order and explain when you learned about it and what you did afterward.
Will marriage to a U.S. citizen cancel the order?
No. A marriage or family petition does not cancel an existing removal order. It may be relevant to a possible immigration option, but the order and the requirements for reopening and relief must be addressed separately.
What happens if the court reopens my case and rescinds the order?
The order entered because of your absence is set aside and proceedings can continue. This does not itself grant permanent residence or another immigration benefit. Follow the court’s new hearing notices and filing deadlines and prepare any defense or application for relief.
Official Legal Sources
Get Help With an Order Entered in Your Absence
If you need help with an order entered after a missed hearing, contact us with the order date, the date you learned about it, and your explanation of the absence. We can review whether reopening is available, what evidence is needed, and whether removal is paused or a stay must be requested.
You can speak with our Norcross or Gainesville office in English or Spanish. If someone is already detained or ICE has given a removal date, mention that when requesting the consultation.
Both offices are open Monday–Friday, 8:00 a.m.–5:00 p.m. Clients are seen by appointment, with assistance in English and Spanish.
