What is an in absentia order?
If a person who received written notice does not attend a removal hearing, the statute says the judge shall order removal in absentia when DHS establishes, by clear, unequivocal and convincing evidence, that notice was given and the person is removable. The rule applies at master and individual hearings, and being late can trigger it, not just staying away. Recent Board decisions have reinforced that judges should proceed in absentia, rather than terminate, once these requirements are met. If someone never gave the required address, no written notice is needed. The rules described here cover removal proceedings. Older deportation and exclusion orders follow different standards, so identify which kind of order you have before doing anything else.
What are the consequences?
The order makes the person subject to removal, and ICE may enforce it. If the person received oral notice of the hearing and its consequences, and did not miss it because of exceptional circumstances, the statute bars cancellation of removal, voluntary departure, adjustment of status, change of status and registry for 10 years. Failure to attend without reasonable cause can also create a five-year inadmissibility bar after departure or removal, and a removal order generally carries its own 10-year bar. Reentering illegally after removal can lead to reinstatement of the old order, with no reopening and no relief under the Act, although a person who expresses fear is referred for a reasonable fear interview. Since October 16, 2026, DHS lists a $5,300 fee for people ordered removed in absentia and later arrested, and has proposed $18,000. The fee does not apply if the order is rescinded under § 240(b)(5)(C).
How do I find out whether I have an order, and what do I do first?
Check EOIR's Automated Case Information website or call 1-800-898-7180 with your A-number. Both can show a judge's decision and its date, though only court documents are official. Then get the order itself and the full record of proceedings, since the record shows which notices were sent, where, and when. Write down the order date, and count 180 days from it. Do not leave the United States without advice: under the regulation, a departure after filing is treated as withdrawing a motion to reopen, and leaving under an order has its own consequences. Update your address with the court on Form EOIR-33. A person arrested on an old order should call a lawyer immediately.
What are the grounds and deadlines for reopening?
In removal proceedings, the order is rescinded by a motion to reopen on one of three grounds. Exceptional circumstances must be raised within 180 days after the order. Lack of proper notice can be raised at any time, as can federal or state custody when the failure to appear was through no fault of your own. The regulation allows one such motion, so make the first one complete. In Matter of M-M-L-J-, which was not an in absentia case, the Board refused equitable tolling of the general one-motion limit in circuits that have not spoken, while acknowledging Second, Seventh and Ninth Circuit decisions applying it. Whether the 180 days can be tolled also depends on the circuit; the Eleventh Circuit requires diligence and an extraordinary obstacle. Two narrower routes exist: a motion agreed with DHS and jointly filed avoids the general limits, and a judge may reopen sua sponte, a power the Board reserves for exceptional situations.
What counts as exceptional circumstances?
The statute names examples beyond your control: battery or extreme cruelty to you or your child or parent, your own serious illness, and the serious illness or death of your spouse, child or parent. It says less compelling circumstances do not qualify, so a simple statement that you forgot or were busy will not carry the motion. You need proof, not just a statement: hospital records, a physician's letter, police reports or a death certificate. In 2026 the Board reversed a rescission where the record did not support a claim that someone misled the respondent about attending. If a lawyer caused the problem, a motion based on ineffective assistance must meet Matter of Lozada: your detailed affidavit, including the terms of your agreement with counsel; evidence that counsel was told of the allegations and could respond, with any response; and the bar complaint with proof of filing, or an explanation why none was filed.
What counts as a notice problem?
This is fact-specific and the law has tightened. In Campos-Chaves v. Garland, the Supreme Court held that receiving proper notice of the missed hearing can defeat rescission even if the Notice to Appear lacked a time and place, and the Board has since applied that rule. Objections to a defective Notice to Appear can be forfeited if not raised on time. In September 2026 the Board held that notice mailed to the most recent address you provided is enough, including an address given before the Notice to Appear was issued. In the Ninth Circuit, Rivera-Valdes says that when the government learns notice failed, it must take additional reasonable steps if practicable. In Chamorro Castillo, in October 2026, the Board applied that rule and found no such steps available when mail to the only address on record came back undeliverable. Non-receipt alone may not be enough, since mailed notice carries a presumption of receipt.
How does the automatic stay work?
Filing a motion to reopen an in absentia removal order stays removal until the immigration judge rules on it. This is a rare protection: other motions to reopen do not automatically stop removal. It also has limits. In removal proceedings, EOIR's manual says there is no automatic stay during a Board appeal from a denied in absentia motion, except for certain motions by battered spouses, children and parents. Older deportation orders differ: the regulation continues that stay through a properly filed appeal. If a judge denies the motion in a removal case, a separate stay request may be needed quickly, and the Board said in 2026 that a person with a final order should first ask DHS. Keep the filed-stamped copy or receipt with you, because proof of filing matters.
What does it cost to file, and how is it filed?
The regulations exempt motions filed under the lack-of-notice and custody provision of INA § 240(b)(5)(C)(ii) from the filing fee. A motion based on exceptional circumstances is not on that exempt list, and we found no rule on a motion raising both kinds of ground, so ask before filing. As of October 2026, EOIR lists $1,095 for a motion to reopen before an immigration judge, or $950 for certain motions based only on a no-fee application. Fees go through the EOIR Payment Portal, since checks and money orders are no longer accepted. A judge may waive a fee if you show inability to pay, using Form EOIR-26A. A missing or incorrect payment can get a filing rejected, which is dangerous near day 180, so file early. Mark the motion as one to reopen an in absentia order and attach an EOIR-33. Filings must be received, not merely mailed, by the deadline, in English or translated. DHS generally has 10 days to respond.
When should I talk to a lawyer?
Today, if you learn of an in absentia order. The 180-day clock may already be running, you generally get one motion, and the evidence you can gather now may not be available later. A lawyer can obtain the record, identify which ground fits, check the mailing history and your address filings, and assess the risks of arrest or travel. Delay is especially dangerous if the 180 days have nearly passed, or if ICE has contacted you. Never let anyone who is not an attorney or accredited representative file for you. No lawyer can promise a reopened case. Ace Immigration's attorney, Anna Tsibel, is a Russian-speaking immigration attorney licensed by the California bar whose practice is immigration law, with a focus on asylum and deportation defense.