Can You Reopen an Immigration Case After an In Absentia Removal Order?

Every year, thousands of immigrants in the United States receive in absentia removal orders — deportation orders issued because they missed an immigration court hearing. If this has happened to you or someone you love, it can feel like the end of the road. But in many cases, the law allows you to reopen your case and fight the removal order.

An in absentia order does not necessarily mean permanent deportation. The Immigration and Nationality Act (INA) provides specific legal mechanisms to challenge these orders, and understanding your options is the first step toward protecting yourself and your family.

What Is an In Absentia Removal Order?

When the government places you in removal proceedings, you receive a Notice to Appear (NTA) that charges you with being removable and initiates your case in immigration court. The court then schedules hearings — and if you fail to appear at any of those hearings, the immigration judge can order you removed "in absentia," meaning in your absence.

Under INA §240(b)(5)(A), the judge may order removal if the government establishes by "clear, unequivocal, and convincing evidence" that written notice of the hearing was provided and the respondent is removable. The judge does not hear your side of the story — your defenses, your eligibility for relief, or your reasons for missing the hearing.

This is why in absentia orders are so dangerous: they strip you of the opportunity to present your case. But the law recognizes that people miss hearings for legitimate reasons, and it provides pathways to reopen.

Three Legal Grounds to Reopen an In Absentia Order

There are three primary grounds under which you can file a motion to reopen an in absentia removal order. Each has different requirements and deadlines.

1. Lack of Proper Notice

The most powerful ground for reopening is proving that you never received proper notice of your hearing. Under INA §240(b)(5)(C)(ii), if you can demonstrate that you were not provided with written notice of the hearing at your last known address, you can file a motion to reopen at any time — there is no deadline.

This ground applies in several common situations:

• The NTA did not include a hearing date or time — Recent Supreme Court and circuit court decisions have addressed whether an NTA that says "to be determined" instead of listing a specific date and time constitutes proper notice
• The hearing notice was sent to the wrong address — If you moved and filed a change of address with the court (Form EOIR-33), but the notice was sent to your old address, you may have a strong reopening claim
• You never received any notice at all — If the government cannot prove the notice was mailed to your last known address, the in absentia order can be rescinded
• The notice was defective — Missing critical information like the consequences of failing to appear

The government bears the burden of proving that proper notice was given. If they cannot produce evidence that the hearing notice was sent to the correct address, the motion to reopen should be granted.

2. Exceptional Circumstances

Under INA §240(b)(5)(C)(i), you can file a motion to reopen within 180 days of the in absentia order if you can show that "exceptional circumstances" prevented you from attending the hearing. The statute defines exceptional circumstances as situations beyond the respondent's control, such as:

• Serious illness or hospitalization — You or an immediate family member was seriously ill on the date of the hearing
• Death of a close family member — A death in the immediate family around the time of the hearing
• Ineffective assistance of counsel — Your attorney failed to inform you of the hearing date, gave you the wrong date, or otherwise provided deficient representation. You must follow the Matter of Lozada requirements
• Severe weather or natural disaster — Conditions that physically prevented you from reaching the court
• Mental health crisis — A documented mental health emergency that prevented attendance
• Domestic violence — In some cases, being a victim of domestic violence that prevented court attendance

The 180-day deadline is strict, so if you believe exceptional circumstances caused you to miss your hearing, act quickly.

3. You Were in Federal or State Custody

If you were in federal, state, or local custody on the date of your hearing — for example, in jail or in immigration detention at a different facility — and the court was not informed, this can be grounds to reopen. Being physically unable to attend because you were incarcerated elsewhere is a compelling reason for reopening.

The Motion to Reopen Process: Step by Step

Filing a motion to reopen an in absentia order involves several critical steps. Here is what to expect:

Step 1: Gather Evidence

Before filing, you need documentation to support your grounds for reopening:

• Copies of any hearing notices you received (or evidence you did not receive them)
• Proof of your address at the time (lease agreements, utility bills, mail records)
• Medical records if claiming illness
• Attorney correspondence if claiming ineffective assistance of counsel
• Any Form EOIR-33 (Change of Address) you filed with the court
• Proof of custody if you were incarcerated

Step 2: File the Motion with the Immigration Court

The motion to reopen is filed with the immigration court that issued the in absentia order. You must include:

• A written motion explaining the legal basis for reopening
• Supporting evidence and declarations
• A copy of the in absentia order
• Proof of service on the government (DHS/ICE)

Step 3: Government Response

After you file, the government has the opportunity to oppose your motion. They may argue that notice was proper or that your circumstances were not truly exceptional.

Step 4: Judge's Decision

The immigration judge will review the motion, the evidence, and any government opposition, then issue a decision. If granted, your case is reopened and placed back on the court calendar — you get a new hearing date and the chance to present your full case, including any applications for relief such as asylum, cancellation of removal, or adjustment of status.

What Happens If the Immigration Court Denies Your Motion?

If the immigration judge denies your motion to reopen, you have the right to appeal to the Board of Immigration Appeals (BIA). The BIA reviews the judge's decision for legal errors and abuse of discretion. You must file your appeal within 30 days of the judge's decision.

If the BIA also denies relief, you may be able to file a petition for review with the federal circuit court of appeals. Federal courts have overturned BIA decisions in numerous in absentia cases, particularly where notice was defective.

Common Mistakes That Can Destroy Your Motion

Reopening an in absentia case requires careful attention to detail. Avoid these common pitfalls:

• Missing the 180-day deadline — For exceptional circumstances claims, this deadline is usually non-negotiable. Do not wait.
• Failing to update your address with the court — Every time you move, you must file Form EOIR-33 with the immigration court AND a Form AR-11 with USCIS. If you did not do this, it weakens a notice argument.
• Insufficient evidence — A bare claim that you "didn't know about the hearing" without supporting documentation is unlikely to succeed. Gather as much evidence as possible.
• Not following Lozada requirements — If claiming ineffective assistance of counsel, you must file a bar complaint against the former attorney, notify them of the allegation, and give them a chance to respond.
• Filing in the wrong court — The motion must be filed with the court that issued the original order.

How Long Does the Reopening Process Take?

The timeline varies significantly depending on the court and the complexity of your case:

• Filing to decision: Typically 2-6 months for the immigration court to rule on the motion
• If appealed to BIA: An additional 6-18 months
• If the case is reopened: You are placed back on the court's calendar, which could mean waiting months to years for your next hearing depending on the court's backlog

While the process can be lengthy, it is far better than living under an active removal order that can be executed at any time.

Can You Stay in the U.S. While the Motion Is Pending?

Filing a motion to reopen does not automatically stop deportation. However, you can file a motion to stay removal along with your motion to reopen, asking the court to pause any removal efforts while your case is being reconsidered. In practice, ICE often exercises discretion not to remove someone with a pending motion to reopen, but this is not guaranteed — having an attorney advocate on your behalf is critical.

Why Legal Representation Matters

In absentia removal cases are among the most complex in immigration law. Studies consistently show that represented respondents are far more likely to succeed in reopening their cases than those who go it alone. An experienced immigration attorney can:

• Evaluate which legal ground gives you the strongest case
• Gather and organize the evidence needed to support your motion
• Meet all filing deadlines and procedural requirements
• Respond effectively to government opposition
• Handle appeals if the initial motion is denied
• File a stay of removal to protect you during the process

Take Action Now — Don't Wait

If you or a loved one has received an in absentia removal order, time is critical. The 180-day deadline for exceptional circumstances claims runs quickly, and even for notice-based claims, the sooner you act, the stronger your case will be. Living with an active removal order puts you at risk every day — at traffic stops, at work, and even at home.

Modern Law Group has helped thousands of families navigate the immigration system, including reopening cases after in absentia removal orders. Our attorneys understand the legal standards, the evidence requirements, and how to present the strongest possible case to the court.

Contact Modern Law Group today at (888) 902-9285 for a free consultation about your case. We are here to help you fight back.