Missed your immigration court hearing? How an in absentia order can be reopened

If you missed an immigration court hearing, you are probably reading this late at night, worried about what happens next. Take a breath. A missed hearing is serious, but it is not always the end of your case. The law gives you specific ways to ask the judge to undo what happened.

What matters most now is speed and accuracy. The deadlines are strict, and you generally get only one chance to make the argument.

What an in absentia order is

When you do not appear, the immigration judge can hold the hearing without you and order you removed. This is called a removal order in absentia.

The judge can do this only if the government establishes two things by clear, unequivocal and convincing evidence: that you were given proper written notice of the hearing, and that you are removable. That is INA 240(b)(5)(A).

You can check whether an order was entered on EOIR's Automated Case Information system at acis.eoir.justice.gov. EOIR says the hearing notices themselves are the official source, so look for any mail from the court too.

The two ways to reopen

The statute gives two routes to ask the judge to rescind, meaning cancel, the order. Which one you use depends on why you missed the hearing.

These routes are in INA 240(b)(5)(C)(i) and (ii). Filing a motion under either one stays your removal automatically while the judge decides it.

The Board of Immigration Appeals cannot hear a direct appeal of an in absentia order. The motion goes to the immigration court.

What counts as exceptional circumstances

The statute defines exceptional circumstances at INA 240(e)(1). They must be beyond your control. It gives examples: battery or extreme cruelty, your own serious illness, or the serious illness or death of your spouse, child or parent. It then adds that the term does not include "less compelling circumstances."

That is a demanding standard, and whether your reason meets it depends on the facts. Whatever happened, the motion needs proof: medical records, hospital papers, a death certificate, police reports, or sworn statements that explain exactly why you could not be there.

Notice problems, and the address trap

The lack-of-notice route has no deadline, but it has a large trap. Under 8 C.F.R. 1003.26(c) and (d), no written notice is required at all if you failed to give the court your address as the rules require. Notice is also sufficient if it was sent to the most recent address you provided, even if you had moved.

The address rule is 8 C.F.R. 1003.15(d). You must file Form EOIR-33 within five days if the address on your Notice to Appear is missing or wrong, and within five days of any move. If you did not, the lack-of-notice argument may not be available.

You may have read that a Notice to Appear without a hearing date and time is defective. In Pereira v. Sessions (2018), the Supreme Court held that such a notice does not trigger the "stop-time" rule. But in Campos-Chaves v. Garland, 602 U.S. 447 (2024), it held that if you received a proper notice for the hearing you actually missed, you cannot get the in absentia order rescinded because the original Notice to Appear was defective. What matters is the notice for that hearing.

Fees and what to do now

Under 8 C.F.R. 1003.24(b)(2)(iii), there is no fee for a motion to reopen an in absentia order under INA 240(b)(5)(C)(ii), the lack-of-notice or custody route. Ask your lawyer what fee, if any, applies to a motion based on exceptional circumstances in your case.

Steps to take now:

1. Write down the date of the hearing you missed and why you missed it, while you remember the details.
2. Gather proof: medical records, receipts, letters, anything that shows what happened.
3. Find every notice you received from the court, and the envelopes they came in.
4. Check that the court has your current address, and file Form EOIR-33 if it does not.
5. Count 180 days from the date of the order, and treat that date as a hard limit.

Because you usually get one motion, how you use it matters. Our post on the one-motion rule explains how the Board counts motions, and our guide to the New York immigration courts covers where the filing goes.

Every missed hearing has its own facts, and the right route depends on them. If you missed a hearing, or think an order may have been entered against you, talk to an immigration lawyer about your own case as soon as you can.