An in absentia removal order is an order of removal that an immigration judge issues when a respondent is absent from a scheduled hearing. According to the Executive Office for Immigration Review (EOIR), any delay in appearing for either a master calendar or an individual calendar hearing may result in a respondent being found removable in absentia (8 C.F.R. § 1003.26(c)).

How the Process Works

EOIR describes the process as one in which there is no direct appeal from an in absentia removal order. Instead, parties may file a motion to reopen, which asks the judge to reconsider the reasons for the absence. In removal proceedings, an in absentia order may be rescinded only if such a motion is granted — the Board of Immigration Appeals (BIA) does not have jurisdiction to hear direct appeals from in absentia orders in removal proceedings.

As EOIR describes it, a motion to reopen is generally prepared with a cover page marked "MOTION TO REOPEN AN IN ABSENTIA ORDER" and must meet applicable filing deadlines and requirements. If the respondent is represented by, or received document assistance from, a practitioner of record, the motion must be accompanied by Form EOIR-28 or Form EOIR-61. EOIR recommends filing a change-of-address form (EOIR-33/IC) together with the motion so that the immigration court has a current address on file. Depending on the nature of the motion, a filing fee or a fee-waiver request may be required (8 C.F.R. § 1003.24(b)(2)).

EOIR separately notes that the standards governing deportation and exclusion proceedings differ from those governing removal proceedings and are controlled by different regulations (8 C.F.R. § 1003.26, § 1003.23(b)(4)(iii)). The provisions described below apply, as EOIR specifies, only to removal proceedings. A general description of how removal proceedings work appears in the section on immigration court and removal proceedings.

Grounds and Deadlines for a Motion to Reopen (Removal Proceedings)

According to EOIR's guidance, a motion to rescind an in absentia order in removal proceedings must establish one of three things: that the failure to appear was due to exceptional circumstances; that the respondent did not receive proper notice of the hearing; or that the respondent was in federal or state custody and the failure to appear was not their fault (INA § 240(b)(5)(C), 8 C.F.R. § 1003.23(b)(4)(ii)).

The term "exceptional circumstances" refers to circumstances beyond the respondent's control — such as battery or extreme cruelty toward the respondent or their child or parent, serious illness of the respondent, or serious illness or death of a spouse, child, or parent — but not less compelling reasons (INA § 240(e)(1)).

EOIR sets out the following deadlines for removal proceedings:

  • If the motion is based on exceptional circumstances, it is filed within 180 days of the in absentia order (INA § 240(b)(5)(C), 8 C.F.R. § 1003.23(b)(4)(ii)).
  • If the basis is lack of proper notice or detention in federal or state custody through no fault of the respondent, the motion may be filed at any time (ibid.).
  • Responses to such motions are filed within ten (10) days of the immigration court's receipt of the motion, unless the judge orders otherwise.

According to EOIR, a respondent may file only one motion to rescind an in absentia order (8 C.F.R. § 1003.23(b)(4)(ii)). In removal proceedings, removal is automatically stayed until the immigration judge resolves the motion (INA § 240(b)(5)(C), 8 C.F.R. § 1003.23(b)(4)(ii)).

What Is an In Absentia Removal Order?

An in absentia removal order is an order of removal issued by a judge when a respondent is not present at a scheduled hearing. According to EOIR, any delay in appearing for a master calendar or individual calendar hearing may lead to this outcome (8 C.F.R. § 1003.26(c)). There is no direct appeal from an in absentia removal order.

Can an In Absentia Removal Order Be Reopened?

As EOIR describes it, in removal proceedings an in absentia order may be rescinded only if a motion to reopen is granted. The Board of Immigration Appeals does not hear direct appeals from such orders in removal proceedings.

How Long Is There to File a Motion to Reopen?

EOIR indicates that if the motion is based on exceptional circumstances, it is filed within 180 days of the in absentia order. If it is based on lack of proper notice or on detention in federal or state custody through no fault of the respondent, the motion may be filed at any time (INA § 240(b)(5)(C), 8 C.F.R. § 1003.23(b)(4)(ii)).