Campos-Chaves v. Garland: if you missed a hearing after a proper notice of hearing, a defective Notice to Appear cannot rescind the in absentia orderCampos-Chaves v. Garland, 602 U.S. 447 (2024)

Wang Law Firm, LLC · David Wang, Managing Attorney · Attorney-reviewed · Updated October 2026

At a glance

Background: in absentia removal orders and "notice"

When a respondent does not appear at an immigration court hearing, the immigration judge may order removal in absentia, provided the government establishes by clear, unequivocal and convincing evidence that written notice was provided to the respondent under paragraph (1) (Notice to Appear) or paragraph (2) (notice of change in hearing time or place) of INA 239(a), and that the respondent is removable (INA 240(b)(5)(A)). If the respondent has not provided an address to the government, written notice is not required.

An in absentia removal order can be rescinded through a motion to reopen, mainly in two ways (INA 240(b)(5)(C)):

• If the failure to appear was due to "exceptional circumstances," the motion must be filed within 180 days after the in absentia order;
• If the respondent shows that he or she did not receive notice under 239(a)(1) or (2), or was in federal or state custody and the failure to appear was through no fault of his or her own, the motion may be filed at any time.

In 2018, Pereira, and in 2021, Niz-Chavez, held that a Notice to Appear that does not state the hearing time and place is not a statutory Notice to Appear. Many people ordered removed in absentia years earlier therefore argued that, because their Notice to Appear was defective, they "did not receive notice under 239(a)(1) or (2)" and could rescind their in absentia removal orders at any time. The Fifth and Ninth Circuits reached different conclusions on this question.

Facts

• Campos-Chaves (a citizen of El Salvador): entered without inspection near Laredo, Texas, in 2005. His Notice to Appear said the date and time were "to be set"; he later received a notice of hearing for 9 a.m. on September 20, 2005, but did not appear and was ordered removed in absentia. About 13 years later he moved to reopen on the ground that his Notice to Appear was defective; the immigration judge and the BIA denied the motion, and the Fifth Circuit denied his petition for review because he did not dispute receiving the later notice of hearing.
• Singh (a citizen of India): entered in 2016 by climbing a fence near Calexico, California. His Notice to Appear listed the time as "TBD"; he later received a notice of hearing, the hearing was then rescheduled twice, and he did not appear either time and was ordered removed in absentia. The Ninth Circuit held that the absence of a single complete Notice to Appear was by itself enough to rescind the in absentia order.
• Mendez-Colín (a citizen of Mexico): attempted to enter at San Luis, Arizona, in 2001 by falsely claiming U.S. citizenship. His Notice to Appear said the time was "to be set"; he later received a notice of hearing and attended the initial hearing (his attorney attended the 2002 hearing), but he missed the September 15, 2003 hearing and was ordered removed in absentia; two motions to reopen he filed at the time were denied. About 15 years later he asked to reinstate his appeal on the ground that his Notice to Appear was defective; the BIA refused, and the Ninth Circuit ruled in his favor.

Issue

• When a Notice to Appear lacks the hearing time or place but the respondent received a 239(a)(2) notice of hearing for the hearing he or she missed, can the in absentia removal order be rescinded on the ground that the respondent "did not receive notice under 239(a)(1) or (2)"?

What the Court held

The majority reasoned that the statute uses "or," which in its ordinary meaning is disjunctive: the government may provide notice under paragraph (1) or paragraph (2). The "notice" in the rescission provision refers to the notice relating to the hearing the respondent missed. All three respondents received notices of hearing stating the time and place of the hearings they missed, and therefore:

“Because each of the aliens in these cases received a proper paragraph (2) notice for the hearings they missed and at which they were ordered removed, they cannot seek rescission of their in absentia removal orders on the basis of defective notice under §1229a(b)(5)(C)(ii).”

The respondents argued that paragraph (2) applies only when a hearing is moved to a "new" time or place, and that where the Notice to Appear never had a time, nothing could be "new." The majority disagreed: a "change" can include replacing "to be set" with a specific time, and "new" means recently established, without requiring that an earlier time existed. The majority also held that Pereira's statement that paragraph (2) presupposes a complete Notice to Appear was dicta, because that case concerned only the stop-time rule. At the same time, the majority noted that the government must still serve a Notice to Appear, and that a respondent who receives only a paragraph (2) notice can raise the incompleteness of the notice at the hearing.

Result: the Fifth Circuit's judgment in Campos-Chaves was affirmed; the Ninth Circuit's judgment in Mendez-Colín was reversed; and the Ninth Circuit's judgment in Singh was vacated and remanded, because Singh had a separate claim for rescission based on "exceptional circumstances" that the lower court had not yet addressed.

Justice Jackson's dissent (joined by Justices Sotomayor, Kagan and Gorsuch) argued that a proper paragraph (1) Notice to Appear is mandatory and that a paragraph (2) notice presupposes one; because none of the three respondents received a proper Notice to Appear, none had received notice under either paragraph. She argued that the majority failed to respect Pereira and Niz-Chavez and shifted the government's burden onto respondents.

What it means for you

People who have received an in absentia removal order

• If your Notice to Appear did not state the hearing time and place, but you did receive a notice of hearing for the hearing you missed, the defect in the Notice to Appear alone is no longer a basis to rescind the in absentia removal order.
• Other avenues may still exist, depending on the specific facts: for example, you truly did not receive notice of that hearing (it was sent to the wrong address, or you updated your address as required but the notice still went to the old one); you were in custody at the time; or you file within 180 days based on exceptional circumstances. Whether notice was "received" turns on details such as address records and proof of mailing.
• Do not leave the country or "turn yourself in" at an immigration office on your own: when there is an unexecuted removal order, the risk of detention and removal is real. An in absentia removal order can also bring bars to reentry and, for a period of time, ineligibility for certain relief. Have an attorney obtain your records and assess the case before you act.

People with a case in immigration court

• This case is a reminder: whether or not your Notice to Appear is defective, attend the hearing stated in your notice of hearing. You cannot skip a hearing on the ground that the Notice to Appear did not comply with the law.
• After you move, update your address with the immigration court on Form EOIR-33 within 5 days and notify DHS as required. If you have not provided an address and you miss a hearing, the government does not have to prove it sent written notice.
• Objections to a defective Notice to Appear should be raised before the judge before the close of pleadings (Matter of Fernandes); this is a different issue from rescinding an in absentia order.

People who want to apply for cancellation of removal (EOIR-42B, 10-year rule)

• This case did not change the stop-time rule: for the 10-year calculation, Niz-Chavez's "one complete document" rule remains in effect. But if you already have an in absentia removal order, you must first address the order itself (by reopening proceedings) before you can apply on EOIR-42B.

Family members

• Family members are often the first to discover that a person has an old removal order (for example, when applying for a family-based petition or during an encounter with law enforcement). You can check EOIR's automated case information system, or request records from EOIR and DHS under the Freedom of Information Act (see G-639), to learn where the notices were sent at the time.
• Do not trust claims that "a defective Notice to Appear means the removal order can be rescinded"; after this case, that is no longer true in most situations.

Later developments

• The BIA's earlier position confirmed: Matter of Laparra-DeLeon, 28 I&N Dec. 425 (BIA 2022) had already held that where a Notice to Appear lacked the time and place but the respondent was properly served with a compliant notice of hearing containing that information, written notice was sufficient to support an in absentia removal order. The First Circuit disagreed in Laparra-Deleon v. Garland, 52 F.4th 514 (1st Cir. 2022) and vacated that BIA decision.
• Matter of Laparra-DeLeon, 29 I&N Dec. 389 (BIA 2026) (decided December 17, 2025): The BIA concluded that the First Circuit decision above cannot be reconciled with Campos-Chaves and has been effectively overruled; it restored the 2022 Laparra precedent in the First Circuit and held that the precedent is binding in any jurisdiction without contrary circuit precedent.
• The Singh case was remanded to the Ninth Circuit to consider his "exceptional circumstances" claim. As of this page's last update, we have not verified the outcome on remand.

As of October 2026, Campos-Chaves has not been overruled or changed by legislation. For how it applies to you, check the latest case law in the circuit where your case is pending.

Practical steps: what to do now

1. Find out the facts first: Confirm whether a removal order exists, when it was entered, whether it was entered in absentia or after you appeared, and the address to which each notice was sent at the time. Request records if necessary.
2. Identify which grounds for rescission remain: whether you truly did not receive the notice of hearing, whether you were in custody at the time, whether you are within 180 days, and whether there are other grounds to reopen (such as new eligibility for relief). Each type of motion has different deadlines and requirements.
3. Assess the risks before acting: For a person with a removal order, any visit to an immigration agency, departure from the country or encounter with law enforcement carries risk. Assess first, then decide when and how to file a motion.
4. If your case is ongoing: attend every hearing, update your address immediately when it changes, and keep every notice and envelope.

Frequently asked questions

Opinion and sources

• U.S. Supreme Court docket No. 22-674
• Cornell LII: full text of Campos-Chaves v. Garland
• Justia: Campos-Chaves v. Garland, 602 U.S. 447 (2024)
• EOIR: Matter of Laparra-DeLeon, 28 I&N Dec. 425 (BIA 2022)
• EOIR: Matter of Laparra-DeLeon, 29 I&N Dec. 389 (BIA 2026)
• U.S. Code: 8 U.S.C. 1229a (INA 240, removal proceedings)
• EOIR: BIA and Attorney General precedent decisions

Related reading

• Niz-Chavez v. Garland: a Notice to Appear must be "one complete document"
• Pereira v. Sessions: a Notice to Appear without the hearing time and place does not "stop the clock"
• Form G-639 guide: Freedom of Information Act requests
• Form EOIR-42B guide: cancellation of removal for non-permanent residents
• Form I-212 guide: permission to reapply for admission after removal

This page is a general introduction to a court decision and is not legal advice. The law and case law change, and outcomes depend on the specific facts. To evaluate your situation, consult an attorney.