Status as of September 28, 2026. The Board of Immigration Appeals has issued a new precedential decision on attempts to reopen an in absentia removal order after a respondent relied on advice from a nonlawyer. In Matter of K-K-U-J-, 30 I&N Dec. 81 (BIA 2026), the Board reversed an Immigration Judge who had reopened the case, finding that the record did not support treating the respondent's circumstances as sufficiently exceptional to justify sua sponte reopening.

A person in removal proceedings missed an Immigration Court hearing after someone he had hired told him that he did not need to appear. The Immigration Judge later concluded that the person who assisted him had deliberately tried to deceive him and reopened the proceedings. The Board of Immigration Appeals reached a different result.

In Matter of K-K-U-J-, the BIA held that the evidence did not support the respondent's claim that he reasonably believed the individual was authorized to represent him in Immigration Court. The Board also found that, to the extent the case involved an ineffective-assistance claim, the respondent had not satisfied the procedural requirements that apply to such claims.

The decision was issued by the Board on August 27, 2026. On September 18, Attorney General-designated it as precedent in proceedings involving the same issue or issues. It is now published as 30 I&N Dec. 81, Interim Decision No. 4249.

What happened in Matter of K-K-U-J-

The respondent is a native and citizen of Uzbekistan who was in removal proceedings. According to the BIA decision, he hired an individual to request a continuance of his Immigration Court case.

The respondent said that this individual told him he was not required to appear on the scheduled hearing date. He did not attend, and the Immigration Judge entered a removal order in absentia.

The record later showed two versions of a motion for continuance. One was the motion actually filed on the respondent's behalf. The other was a more detailed version that the individual allegedly showed the respondent while representing that it was the document that had been filed.

The Immigration Judge viewed this as a deliberate attempt to deceive the respondent. The judge found sufficient evidence to suggest that the respondent had been misled by someone he believed was authorized to represent him, even though that apparently was not the case. The judge reopened the proceedings under 8 C.F.R. § 1003.23.

The Department of Homeland Security appealed.

Why the BIA reversed the Immigration Judge

The BIA focused closely on what the documents in the record actually showed. Both motions for continuance stated that the respondent was proceeding pro se, meaning without a lawyer representing him. Both were signed by the respondent. Neither contained the name or signature of the individual who had assisted him.

The Board also noted that the respondent did not allege that the individual had told him he was an attorney.

Against that record, the BIA found it unreasonable to treat the individual's instruction that the respondent did not need to appear in court as a basis for the extraordinary exercise of sua sponte reopening authority.

The Board relied in part on Matter of G-D- and Matter of J-J-, earlier decisions stating that sua sponte reopening is an extraordinary remedy rather than a general way to avoid the time and number limits that ordinarily govern motions to reopen.

The BIA also cited the Third Circuit's decision in Jean Louis v. Attorney General, 914 F.3d 189 (3d Cir. 2019). In that case, a nonlawyer immigration adviser told a respondent that he could miss his hearing without consequence. The Third Circuit held that the nonlawyer's bad advice did not constitute the exceptional circumstances required to rescind the in absentia order in that case.

The distinction between a lawyer and a nonlawyer mattered

Matter of K-K-U-J- follows another BIA precedent issued earlier in 2026. In Matter of Z-R-C-N-, 29 I&N Dec. 523 (BIA 2026), the Board held that a respondent could not succeed on an ineffective-assistance-of-counsel claim where the person she hired was not an attorney and had not held himself out as one.

The BIA applied the same distinction in K-K-U-J-. The respondent's allegations involved misconduct by someone who was not shown to be an attorney and who, according to the decision, was not alleged to have claimed that he was one.

The Board did not say that misconduct by a nonlawyer can never be relevant in any motion to reopen. Its holding was tied to the record before it and to the grounds on which the Immigration Judge exercised sua sponte authority. What the decision does make clear is that hiring a nonlawyer and later receiving incorrect advice from that person does not automatically convert the problem into an ineffective-assistance-of-counsel claim.

The Lozada requirements were a separate problem

The Board also addressed ineffective assistance of counsel as an alternative theory. It found that, to the extent the respondent or the Immigration Judge had relied on such a claim, the respondent had not complied with the procedural framework established in Matter of Lozada, 19 I&N Dec. 637 (BIA 1988).

Under the Lozada framework, an ineffective-assistance claim generally requires a detailed account of the agreement with counsel and the alleged misconduct, notice to the attorney whose conduct is being challenged and an opportunity for that attorney to respond, and information about whether a complaint was filed with the appropriate disciplinary authorities, or an explanation if no complaint was filed.

The BIA did not need to decide a broader ineffective-assistance question in K-K-U-J-. It concluded that the respondent had not met the applicable procedural requirements in any event.

How reopening an in absentia removal order normally works

An in absentia order is entered when Immigration Court proceeds without the respondent after the statutory requirements for such a hearing have been met. Federal law provides specific grounds for seeking rescission of such an order.

According to the EOIR Immigration Court Practice Manual, a motion based on exceptional circumstances generally must be filed within 180 days after the in absentia order. A motion based on lack of proper notice, or on the respondent being in federal or state custody through no fault of the respondent, may be filed at any time.

Those statutory and regulatory routes are distinct from sua sponte reopening, the authority at issue in Matter of K-K-U-J-. The BIA has repeatedly described sua sponte reopening as an extraordinary remedy reserved for truly exceptional situations.

What the new precedent does and does not establish

The decision is significant because it is precedential, but its reach should not be overstated. The BIA did not announce that every missed hearing caused by fraud, bad advice or misconduct must result in denial of reopening.

Instead, the Board examined this respondent's evidence and found several facts that undermined his position. The documents he signed identified him as representing himself. The alleged adviser was not identified on those filings. The respondent did not allege that the adviser had claimed to be an attorney. The Board also found no compliance with the Lozada requirements for an ineffective-assistance claim.

Different facts can raise different legal questions. Claims involving lack of notice, detention, misconduct by an attorney, fraud by someone who falsely represented himself as an attorney, or other circumstances are governed by their own statutory provisions and precedent. Matter of K-K-U-J- does not resolve all of those situations.

The final result

The BIA sustained DHS's appeal, reversed the Immigration Judge's May 9, 2026 decision and denied the motion to reopen.

The precedential opinion is available from the Executive Office for Immigration Review. EOIR also lists Matter of K-K-U-J- in its current collection of Volume 30 precedent decisions.

This article provides general information about a published immigration decision and does not constitute legal advice. Immigration cases depend on their facts, procedural history and the law applicable in the relevant jurisdiction.