In absentia removal orders: what they mean and how to reopen one

What an in absentia order is

If you received written notice of a hearing and do not attend, the immigration judge orders you removed in your absence when DHS shows, by clear, unequivocal and convincing evidence, that notice was given and that you are removable.

Notice sent to the most recent address you gave the court is sufficient. If you never gave the court an address, no written notice is required at all.

The order is a final removal order, and DHS can carry it out without another hearing.

The Board of Immigration Appeals does not hear direct appeals of in absentia orders in removal proceedings. The route is a motion to reopen before the immigration judge.

Consequences beyond removal

• 10-year bar: if you were told orally, in your language or one you understand, about the hearing and the consequences of missing it, you are barred for 10 years from cancellation of removal, voluntary departure, adjustment of status, change of nonimmigrant status and registry (INA 240(b)(7)).
• Civil penalties: DHS may impose up to $998 for each day a person willfully fails to depart after a final removal order (8 CFR 280.53). A final rule on assessing and collecting these penalties took effect on 14 October 2026.
• Later applications: a removal order can affect future visa and green card applications, so get advice before any travel or new filing.

Ground 1: exceptional circumstances (180 days)

Exceptional circumstances are circumstances beyond your control. The statute's examples are battery or extreme cruelty to you or your child or parent, your serious illness, and the serious illness or death of your spouse, child or parent.

Less compelling reasons, such as traffic, car trouble or work, do not qualify.

The motion must be filed within 180 days after the date of the order, with evidence: hospital records, a death certificate, police reports, sworn statements.

EOIR fees for this motion are $1,095 for motions filed from 1 October 2026: the $145 EOIR fee plus $950 under Pub. L. 119-21 (8 CFR 1103.7).

Ground 2: no proper notice, or custody (any time)

You may file at any time if you did not receive notice in the way the law requires, or if you were in federal or state custody and the absence was not your fault.

Typical examples: the notice was never sent, went to the wrong address, or was not delivered.

This ground does not help if the notice went to the last address you gave the court and you did not report a move.

No filing fee applies to a lack-of-notice or custody motion (8 CFR 1003.24(b)(2)(iii)), and EOIR's June 2026 fee rule confirms that the Pub. L. 119-21 fee does not apply either.

How the motion works

• File it with the immigration court that issued the order, with a cover page titled “MOTION TO REOPEN AN IN ABSENTIA ORDER”, the supporting evidence, and a new Form EOIR-33 with your current address.
• If an attorney represents you, Form EOIR-28 goes with the motion.
• DHS may respond within 10 days after the court receives the motion, unless the judge sets another time.
• You may file only one motion to rescind an in absentia order.
• Filing the motion automatically stays removal until the judge rules. Keep proof of filing with you.
• The judge's decision on the motion can then be appealed to the Board of Immigration Appeals.

How to avoid an in absentia order

• File Form EOIR-33 with the court within 5 days of any move, and tell USCIS within 10 days (Form AR-11).
• Check your case at least weekly on EOIR's Automated Case Information portal (acis.eoir.justice.gov) or at 1-800-898-7180, using your A-number.
• If you cannot attend, ask your attorney to file a motion to continue as early as possible, and treat the hearing as going ahead until the judge grants it.
• If you have an attorney, make sure their Form EOIR-28 is on file so that notices also reach them.

How Merit can help

Merit's U.S.-licensed attorneys (Nora Busra Turan: Texas, New York, Maryland; Beyza Candelen: New York, New Jersey, Pennsylvania) review the court record, prepare motions to reopen and represent clients in immigration court. If ICE has detained you, see ICE detention and habeas.

This guide is general information, not legal advice. Deadlines here run from the date of the order, so act on the day you learn of it.