Motions to Reopen in Absentia Orders in the United States

Motions to Reopen In Absentia Orders in relation to Immigration Courts

(information based on the DoJ Manual)

In general

A motion to reopen requesting that an in absentia order be rescinded asks the Immigration Judge to consider the reasons why the Alien (person who is not a citizen or national of the United States) did not appear at the alien’s scheduled hearing. See (in this American law platform, in relation to immigration courts and judges) In Absentia Hearing.

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 (in this American law platform, in relation to immigration courts and judges) below, and Filing a Motion. If the Alien is represented, the attorney must file a paper, not an electronic, Notice of Entry of Appearance as Attorney or Representative Before the Immigration Court (Form EOIR-28). See (in this American law platform, in relation to immigration courts and judges) entry Entering an appearance. To ensure that the Immigration Court has the alien’s current address, an Alien’s 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 (in this American law platform, in relation to immigration courts and judges) 8 C.F.R. § 1003.24(b)(2).

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 (in this American law platform, in relation to immigration courts and judges) Other Proceedings before Immigration Judges. The provisions below, apply to removal proceedings only. Parties in deportation or exclusion proceedings should carefully review the controlling law and regulations. See (in this American law platform, in relation to immigration courts and judges) 8 C.F.R. § 1003.23(b)(4)(iii).

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 Parties should note that, in removal proceedings, an in absentia order may be rescinded only upon the granting of a motion to reopen.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.

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 Alien (person who is not a citizen or national of the United States) did not receive proper notice; or
the failure to appear was because the Alien was in federal or state custody and the failure to appear was through no fault of the alien.

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 Alien (such as battery or extreme cruelty to the Alien or any child or parent of the alien, serious illness of the Alien or serious illness or death of the spouse, child, or parent of the alien, but not including less compelling circumstances). INA § 240(e)(1).

Time limits

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 (in this American law platform, in relation to immigration courts and judges) INA § 240(b)(5)(C), 8 C.F.R. § 1003.23(b)(4)(ii).

At any time

If the motion to reopen to rescind an in absentia order is based on an allegation that the alien did not receive proper notice of the hearing, or that the alien was in federal or state custody and the failure to appear was through no fault of the alien, the motion may be filed at any time. See (in this American law platform, in relation to immigration courts and judges) INA § 240(b)(5)(C), 8 C.F.R. § 1003.23(b)(4)(ii).

Responses

Responses to motions to reopen to rescind in absentia orders are due within fifteen (15) days after the motion was received by the Immigration Court, unless otherwise specified by the Immigration Judge.

Number limits

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

Automatic stay

The removal of the alien is automatically stayed pending disposition by the Immigration Judge of the motion to reopen to rescind an in absentia order in removal proceedings. See (in this American law platform, in relation to immigration courts and judges) INA § 240(b)(5)(C), 8 C.F.R. § 1003.23(b)(4)(ii).