In absentia removal orders
If you missed a hearing and were ordered removed in absentia, the order can sometimes be rescinded. INA 240(b)(5)(C) gives two routes: a motion within 180 days showing exceptional circumstances, and a motion at any time showing you did not receive notice or were in federal or state custody. Filing either one stays your removal automatically, which no ordinary motion does.
Current as of September 2026. We re-check this page every quarter and after any rule change.
Under INA 240(b)(5)(A), a person who does not attend a hearing after written notice was provided "shall be ordered removed in absentia" if DHS establishes, by clear, unequivocal and convincing evidence, that the notice was provided and that the person is removable. The order is entered without you, and without any application for relief you had or could have had ever being heard. It is also, in the right circumstances, reversible. This page is how, and it sits under after a removal order.
One route has 180 days, and leaving the country ends the motion
The exceptional-circumstances route must be filed within 180 days of the order. And under 8 C.F.R. 1003.23(b)(1), a departure from the United States after filing a motion to reopen "shall constitute a withdrawal of such motion." Leaving while the motion is pending ends it.
The two routes
| Route | Deadline | What you show | Fee | Authority |
|---|---|---|---|---|
| Exceptional circumstances | 180 days from the date of the order | The failure to appear was because of exceptional circumstances as defined in INA 240(e)(1) | Government motion fee applies | INA 240(b)(5)(C)(i) |
| No notice, or custody | Any time | You did not receive notice in accordance with INA 239(a)(1) or (2), or you were in federal or state custody and the failure to appear was through no fault of your own | No fee, 8 C.F.R. 1003.24(b)(2)(iii) | INA 240(b)(5)(C)(ii) |
Only one motion to reopen to rescind an in absentia order is permitted, and the Board has no jurisdiction over a direct appeal of an in absentia removal order. The single motion you get is therefore worth preparing properly. The two routes are not mutually exclusive: a motion may argue both, and the no-notice route has no deadline if the 180 days have already run.
The automatic stay
INA 240(b)(5)(C) provides that "[t]he filing of the motion to reopen described in clause (i) or (ii) shall stay the removal of the alien pending disposition of the motion by the immigration judge." The stay is automatic, on filing, with no separate application, and 8 C.F.R. 1003.23(b)(4)(ii) implements it. This is unusual. Under 8 C.F.R. 1003.23(b)(1)(v), ordinary motions to reopen and reconsider do not stay removal, and neither does a petition for review under INA 242(b)(3)(B). The full map is at stays of removal.
Exceptional circumstances, precisely
INA 240(e)(1) defines the term as circumstances beyond the alien's control, "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."
That final clause is where most motions fail. Traffic, a missed bus, a work shift, confusion about the date, or a family member's non-serious illness is generally not enough on its own. Hospitalization, a medical emergency, domestic violence, the death of a spouse, child or parent, and in some cases the serious failures of a prior representative can be enough, when documented. Where the failure to appear was a lawyer's or a notario's doing, the motion is also built to meet the requirements of Matter of Lozada, 19 I&N Dec. 637 (BIA 1988); see ineffective assistance of counsel.
Document everything contemporaneously: hospital records with dates and times, police reports, death certificates, employer records, and phone records showing calls to the court or to counsel that day.
Lack of notice, and what Campos-Chaves changed
The no-notice route was for years the strongest argument available, particularly after Pereira v. Sessions, 585 U.S. 198 (2018), and Niz-Chavez v. Garland, 593 U.S. 155 (2021), which held that a document omitting the time or place of proceedings is not a notice to appear under INA 239(a) and that the defect cannot be cured by a second, later document.
Then came Campos-Chaves v. Garland, 602 U.S. 447 (2024). The Supreme Court held that where a person received a proper notice under INA 239(a)(2) for the hearing they actually missed, they cannot obtain rescission under INA 240(b)(5)(C)(ii) on the basis of a defective initial Notice to Appear.
What that means for your motion
The question is no longer "was my Notice to Appear defective." It is "what notice did I receive for the specific hearing I missed, and did I receive it." A defective Notice to Appear followed by a proper hearing notice is a much weaker case after Campos-Chaves. A case where no notice of the missed hearing reached you at the address you had properly filed is a much stronger one. The defective notice may still matter for other purposes, such as the stop-time rule for cancellation of removal; see defective Notices to Appear.
The address rules do a great deal of work here. Under 8 C.F.R. 1003.15(d), a change of address must be filed on Form EOIR-33 within five days. Under 8 C.F.R. 1003.26(c) and (d), no written notice is required at all where a person never provided an address, and notice is sufficient if sent to the most recent address the person provided. Whether you filed Form EOIR-33, and whether you kept proof of it, is frequently the entire case.
Federal or state custody
This route is the second half of INA 240(b)(5)(C)(ii). A person who was in federal or state custody and could not appear, through no fault of their own, may move at any time. It is underused. Custody records, transport logs and detainer paperwork prove it, and they can be obtained long after the fact.
The first week
- Get the order and the record. Confirm the date of the order, because the 180 days run from it. EOIR's automated system at 1-800-898-7180 and acis.eoir.justice.gov gives the decision date; see checking your case status.
- Establish what notice was sent, and where. Collect every hearing notice, every address you gave, and every Form EOIR-33 you filed, with proof.
- Do not leave the United States. Departure withdraws a pending motion, and departure after an order carries separate consequences.
- Gather proof of why you did not appear, dated and from third parties wherever possible.
- Get counsel. You get one motion, and there is no direct appeal from an in absentia order.
- Plead both routes where both apply. They are not mutually exclusive.
If the motion is granted
The order is rescinded and proceedings resume where they left off. The case is back on a calendar, with the filing deadlines and appearance obligations that come with it, and every form of relief on the relief page that you were eligible for is available again. The prior in absentia order does not decide the merits.
If the 180 days have passed and there was proper notice
The possibilities narrow but are not zero. A motion to reopen based on changed country conditions under INA 240(c)(7)(C)(ii) has no time or number limit where the basis is asylum, withholding or CAT and the evidence is material and was not previously available. A motion based on ineffective assistance of prior counsel has its own procedural requirements and, in the Second and Eleventh Circuits, can toll the 90-day deadline. And the judge and the Board retain authority to reopen on their own motion in exceptional situations, which is asked for and rarely granted.
If the hearing you missed was an asylum hearing, our asylum site covers the same motion from the asylum side, including what happens to the I-589 and the one-year deadline when the case is reopened.
In absentia orders at asylumadvocate.com →
icebail.comAn in absentia order is often discovered when ICE makes an arrest. Detention, bond and habeas corpus for a person held on an old order are handled at our detention site.
Detention and bond at icebail.com →
Read next: the Notice to Appear, motions to reopen, ineffective assistance of counsel, or stays of removal.
Common questions
Can an in absentia order be reopened?
Sometimes. INA 240(b)(5)(C) provides two routes: a motion to reopen filed within 180 days of the order showing that the failure to appear was because of exceptional circumstances, or a motion filed at any time showing that you did not receive notice in accordance with INA 239(a)(1) or (2), or that you were in federal or state custody and the failure to appear was through no fault of your own. Only one such motion is permitted, and there is no direct appeal to the Board from an in absentia order.
Does filing the motion stop my removal?
Yes, automatically. INA 240(b)(5)(C) provides that the filing of a motion to reopen under either route stays the removal of the alien pending disposition of the motion by the immigration judge. This is one of the few automatic stays in immigration practice; an ordinary motion to reopen and a petition for review carry none.
What counts as exceptional circumstances?
INA 240(e)(1) defines them as circumstances beyond the alien's control, 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 alien's spouse, child or parent, but not including less compelling circumstances. That last clause is where most motions fail.
Is there a fee?
No government fee is required for a motion to reopen an in absentia order filed under INA 240(b)(5)(C)(ii), the lack-of-notice or custody route, under 8 C.F.R. 1003.24(b)(2)(iii). Ordinary motions to reopen carry a government filing fee of $1,065 before an immigration judge, which is not our legal fee.
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