How to File a Motion to Reopen an In Absentia Order

A motion to reopen an in absentia order is a written request asking the immigration judge who ordered your removal to cancel that order and put your case back on the calendar. You file it with the immigration court that issued the order, on one of three grounds set out in federal law, and you only get one shot at it.¹ The quality of that single filing decides whether the judge ever hears the merits of your case.

The Three Grounds You Can File On

Federal law limits you to three reasons for reopening an in absentia removal order. Your motion has to establish at least one of them.²

You Did Not Receive Proper Notice

The government has to prove, with clear, unequivocal, and convincing evidence, that it sent written notice of the hearing to your most recent address on file with the court.³ If the notice went to an old address because the court’s records were wrong, or if it was never delivered, that is a valid basis for reopening.

There is a serious catch. If you failed to give the court an address as the law requires, the judge can proceed in absentia without sending any written notice at all. Keeping the court informed of your current address is your responsibility, not the government’s.²

Exceptional Circumstances Kept You Away

The statute lists the kinds of events that qualify: serious illness of you or an immediate family member; the death of a spouse, child, or parent; and battery or extreme cruelty directed at you, your child, or your parent. The threshold is high. Immigration judges regularly reject reasons like transportation trouble, work conflicts, or confusion over the hearing date. The event has to have genuinely prevented you from attending, not just made attending harder.⁴

You Were in Federal or State Custody

If you were locked up in a federal or state facility on the hearing date and could not attend through no fault of your own, that qualifies. The “no fault” language matters: the judge will consider whether you or your attorney took reasonable steps to notify the court of your detention.²

Deadlines

The filing deadline depends on which ground you are using.

Exceptional circumstances: 180 days from the date the in absentia order was issued. The clock starts when the judge enters the order, not when you find out about it.
Lack of proper notice: No deadline. You can file at any time.
Federal or state custody: No deadline. You can file at any time.

The 180-day window can sometimes be extended through equitable tolling. You have to show two things: that you pursued your rights diligently, and that some extraordinary circumstance beyond your control kept you from filing on time. The most common example is a prior attorney who never told you about the order or failed to file a motion after promising to. Tolling only lasts until the obstacle is gone or until a reasonable person would have discovered the problem.¹

You are limited to one motion to reopen an in absentia order. If it is denied, you cannot simply refile at the immigration court on the same grounds. Get it right the first time.¹

Evidence to Attach

The motion is decided on paper in most cases, without a hearing. Every fact you want the judge to accept has to be supported by documents.

Lack of Notice

A timely-filed Change of Address Form (EOIR-33/IC) showing you updated your address before the notice was sent
Envelopes returned to sender as undeliverable
Sworn statements from you or others with knowledge of the situation
Proof of where you actually lived at the time, such as a lease or utility bill

File a current EOIR-33/IC with the motion as well, so the court has your correct address going forward.⁴

Exceptional Circumstances

You need direct proof of the event. Hospital records or a physician’s letter for a medical emergency. A death certificate for a family death. Police reports or protective orders for a domestic violence claim. The connection between the event and the missed hearing has to be clear from the documents themselves. A hospital visit on the day of the hearing carries far more weight than one two weeks earlier.

Custody

Get records from the facility showing you were incarcerated on the hearing date: booking records, release documents, or a letter from the facility’s records office.

Where to File and How

Submit the motion to the specific immigration court that issued the in absentia order. Filing with a different court, or going directly to the Board of Immigration Appeals, does not work at this stage.

You also have to serve a full copy of the motion and every attachment on the ICE Office of the Principal Legal Advisor (OPLA) for the field location where your case was completed. This is required, and a motion filed without proof of service can be rejected.¹ Include a signed certificate of service that identifies who you served, their address, the date of service, how it was sent, what was included, and who mailed or delivered it.⁵

The filing fee for a motion based on exceptional circumstances is $1,065. There is no fee for motions based on lack of notice or federal or state custody.⁶ If you cannot afford the fee, file Form EOIR-26A (Fee Waiver Request) with the motion.⁷

Filing itself protects you. A motion to reopen an in absentia order automatically stays your removal, so ICE cannot deport you while the judge considers the motion. The stay takes effect on filing, not on the ruling, and it applies no matter which ground you rely on.²

When a Prior Attorney Caused the Problem

If your former attorney’s incompetence caused you to miss the hearing or miss the deadline to reopen, you can move to reopen on ineffective assistance of counsel. This is a separate path from the three in absentia grounds and follows the framework the Board of Immigration Appeals set in Matter of Lozada. You have to show that the attorney’s performance fell below a reasonable standard and that it actually harmed your case.⁸

Three procedural steps are required:

A detailed sworn statement from you explaining what the attorney agreed to do, what they represented, and what actually happened
Notice to the former attorney of the allegations, with an opportunity to respond, and any response included with your motion
A statement about whether you have filed a complaint with the appropriate bar or disciplinary authority, and if not, why

Ineffective-assistance motions follow the general 90-day motion-to-reopen deadline, but equitable tolling frequently extends it when the attorney’s own misconduct caused the delay. The idea is straightforward: the person responsible for filing on time was the one who failed you. Courts look at whether you acted diligently once you knew, or should have known, something was wrong.

Why Speed Matters Even Without a Deadline

An in absentia order carries a second penalty beyond removal itself. If you received oral notice of the hearing in a language you understand and were warned about the consequences of failing to appear, you become ineligible for ten years for cancellation of removal, voluntary departure, adjustment of status, change of nonimmigrant status, and registry.² The bar runs from the date of the order. Reopening the case eliminates it. That is a strong reason to move quickly even when your ground has no filing deadline.

If the Judge Denies Your Motion

You can appeal to the Board of Immigration Appeals using Form EOIR-26 (Notice of Appeal). The Board must receive the appeal within 30 calendar days of the judge’s decision. Mailing it within 30 days is not enough; it has to arrive within that window.⁹

The appeal has to identify the specific findings of fact or conclusions of law you are challenging. General disagreement will not do; the Board can dismiss an appeal that fails to point to particular errors. Include proof of service on OPLA, and file Form EOIR-27 if an attorney is entering an appearance for the appeal.

If the Board also denies you, the next step is a petition for review with the federal court of appeals for the circuit where the immigration court sits. For in absentia orders, judicial review is limited to three questions: whether valid notice was given, the reasons for the absence, and whether you are removable.²

1
eCFR. 8 CFR 1003.23 – Reopening or Reconsideration Before the Immigration Court
2
Office of the Law Revision Counsel. 8 USC 1229a – Removal Proceedings
3
eCFR. 8 CFR 1003.26 – In Absentia Hearings
4
Executive Office for Immigration Review. 5.9 – Motions to Reopen In Absentia Orders
5
Executive Office for Immigration Review. 2.2 – Service
6
Executive Office for Immigration Review. Types of Appeals, Motions, and Required Fees
7
Executive Office for Immigration Review. Forms and Fees
8
U.S. Department of Justice. Matter of Lozada, Interim Decision 3059
9
Executive Office for Immigration Review. Notice of Appeal From a Decision of an Immigration Judge, Form EOIR-26