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Immigration Court Practice Manual

Immigration Court Practice Manual
Chapter 5 - Motions Before the Immigration Court

5.9 - Motions to Reopen In Absentia Orders

(a) In General — A motion to reopen requesting that an in absentia order be rescinded asks the immigration judge to consider the reasons why the respondent did not appear at the respondent’s scheduled hearing.  See Chapter 4.17 (In Absentia Hearing).

(b) Filing — The motion should be filed with a cover page labeled “MOTION TO REOPEN AN IN ABSENTIA ORDER” and comply with the deadlines and requirements for filing.  See subsection (d), below, Chapter 5.2 (Filing a Motion), Appendix E (Cover Pages.  If the respondent is represented by a practitioner of record or has received document assistance from a practitioner, the motion must be accompanied by a Form EOIR-28 or Form EOIR-61.  See Chapter 2.1 (Representation and Appearances Generally).  To ensure that the immigration court has the respondent’s current address, a change of address form (EOIR-33/IC) should be filed with the motion.  A filing fee or fee waiver request may be required, depending on the nature of the motion.  See 8 C.F.R. § 1003.24(b)(2).

(c) Deportation and Exclusion Proceedings — The standards for motions to reopen to rescind in absentia orders in deportation and exclusion proceedings differ from the standards in removal proceedings.  See Chapter 7 (Other Proceedings before Immigration Judges).  The provisions in subsection (d), below, apply to removal proceedings only.  Parties in deportation or exclusion proceedings should carefully review the controlling law and regulations.  See 8 C.F.R. § 1003.23(b)(4)(iii).

(d) Removal Proceedings — The following provisions apply to motions to reopen to rescind in absentia orders in removal proceedings only.  Parties should note that, in removal proceedings, an in absentia order may be rescinded only upon the granting of a motion to reopen.  The Board of Immigration Appeals does not have jurisdiction to consider direct appeals of in absentia orders in removal proceedings.

          (1) Content — A motion to reopen to rescind an in absentia order must demonstrate that:

  • the failure to appear was because of exceptional circumstances;
  • the failure to appear was because the respondent did not receive proper notice; or
  • the failure to appear was because the respondent was in federal or state custody and the failure to appear was through no fault of the respondent.

          INA § 240(b)(5)(C), 8 C.F.R. § 1003.23(b)(4)(ii).  The term “exceptional circumstances” refers to exceptional circumstances beyond the control of the respondent (such as battery or extreme cruelty to the respondent or any child or parent of the respondent, serious illness of the respondent or serious illness or death of the spouse, child, or parent of the respondent, but not including less compelling circumstances).  INA § 240(e)(1).

          (2) Time limits — 

(A) Within 180 days — If the motion to reopen to rescind an in absentia order is based on an allegation that the failure to appear was because of exceptional circumstances, the motion must be filed within 180 days after the in absentia order.  See INA § 240(b)(5)(C), 8 C.F.R. § 1003.23(b)(4)(ii).

(B) At any time — If the motion to reopen to rescind an in absentia order is based on an allegation 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 through no fault of the respondent, the motion may be filed at any time.  See INA § 240(b)(5)(C), 8 C.F.R. § 1003.23(b)(4)(ii).

(C) Responses — Responses to motions to reopen to rescind in absentia orders are due within ten (10) days after the motion was received by the immigration court, unless otherwise specified by the immigration judge.

          (3) Number limits — The respondent is permitted to file only one motion to reopen to rescind an in absentia order.  8 C.F.R. § 1003.23(b)(4)(ii).

          (4) Automatic stay — The removal of the respondent is automatically stayed pending disposition by the immigration judge of the motion to reopen to rescind an in absentia order in removal proceedings.  See INA § 240(b)(5)(C), 8 C.F.R. § 1003.23(b)(4)(ii).