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In absentia removal orders and motions to reopenIn Absentia Removal Orders, Motions to Reopen and Motions to Reconsider

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

Start here: (1) If you discover that you or a family member has an in absentia removal order, do not leave the country on your own yet; have an attorney evaluate the case as soon as possible. If you already have an ICE check-in requirement, report as required, but consult an attorney before reporting. (2) The deadline to rescind an in absentia order based on "exceptional circumstances" is 180 days after the order; the deadline for an ordinary motion to reopen is 90 days; and for a motion to reconsider, 30 days — the time is very tight. (3) Gather and keep every document and envelope you received, records of your moves, and proof of any illness or custody at the time. (4) Generally "only one" motion is allowed, so the first motion must be complete; do not rush to file it yourself or hand it to a non-attorney to "handle."

An "in absentia removal order" is a removal order issued by an Immigration Judge when the respondent did not attend an immigration court hearing. A "motion to reopen" asks the Immigration Judge or the Board of Immigration Appeals (BIA) to reopen a case that has already concluded; a "motion to reconsider" asks the original decision-maker to correct legal or factual errors in the original decision.

These motions differ in their legal basis, deadlines and evidentiary requirements, and there are several important exceptions. Over the past two years the BIA has issued a number of related precedents that, overall, narrow the room for reopening. The discussion below follows this order: how an in absentia order arises — how to rescind it — ordinary reopening and reconsideration — exceptions — stays of removal — practical steps.

Requirements for an in absentia order: INA 240(b)(5)

Under section 240(b)(5)(A) of the Immigration and Nationality Act (INA), when a respondent fails to appear after receiving written notice, if the Department of Homeland Security (DHS) establishes by clear, unequivocal, and convincing evidence that:

written notice was provided to the respondent (or the respondent's counsel) as required by INA 239(a)(1) or (2); and
the respondent is removable;

the Immigration Judge shall order the respondent removed in absentia. "Notice" here means the Notice to Appear (NTA) or a later notice of a change in the hearing time; it is sufficient for the notice to be sent to the last address the respondent provided to the government.

Under INA 240(b)(5)(B), if the respondent has not provided an address or reported a change of address as required by INA 239(a)(1)(F), the law does not require written notice to be provided. This is why immigration courts repeatedly stress that you must promptly update your address with the court on EOIR-33 after moving.

Consequences of an in absentia removal order

It immediately becomes a final removal order. An in absentia order cannot be appealed directly to the BIA (8 CFR 1003.1(b)); you must first file a motion to rescind with the immigration court that issued it.
Ineligibility for several forms of relief for 10 years. Under INA 240(b)(7), if the respondent, when given notice, was orally informed in a language he or she understands of the time and place of the hearing and the consequences of failing to appear, and the absence was not due to "exceptional circumstances," the respondent is ineligible for 10 years from the date of the final removal order for relief such as cancellation of removal, voluntary departure, adjustment of status, change of status and registry.
Reentry bars. A person who fails without reasonable cause to attend removal proceedings may be inadmissible for 5 years under INA 212(a)(6)(B) after departing or being removed; a person removed under a removal order may also be subject to reentry bars under INA 212(a)(9)(A).
Possible ICE detention and removal. A person with a final removal order may be detained by U.S. Immigration and Customs Enforcement (ICE) and scheduled for removal at any time; see What to do if you already have a removal order.

Three grounds for rescinding an in absentia order: INA 240(b)(5)(C)

To rescind an in absentia order, you file a "motion to reopen" with the immigration court that issued the order. The law provides three grounds:

Ground	Deadline	Key points
Failure to appear because of exceptional circumstances	Within 180 days after the in absentia order	Defined in INA 240(e)(1): circumstances beyond the respondent's control, such as battery or extreme cruelty to the respondent or the respondent's child or parent, serious illness of the respondent, or serious illness or death of the spouse, child or parent; "less compelling circumstances" do not qualify. Evidence is required, such as hospital records or a death certificate.
Did not receive notice as required by law	May be filed at any time	You must show that you did not receive the notice required by INA 239(a)(1) or (2). If the notice was sent to the address you yourself provided, the law presumes it was delivered, and rebutting that presumption with evidence is difficult (see the new 2026 precedent below).
In federal or state custody at the time, and the failure to appear was not the respondent's fault	May be filed at any time	For example, being held in criminal custody on the day of the hearing and unable to attend. Custody records are required.

Under INA 240(b)(5)(C), filing a motion to rescind an in absentia order automatically stays removal until the Immigration Judge decides the motion. This is one of the few situations in which "filing alone stays removal," discussed in more detail below.

Can a defective Notice to Appear be grounds for rescinding an in absentia order?

In Niz-Chavez v. Garland (2021), the U.S. Supreme Court held that a Notice to Appear used for the "stop-time rule" must be a single document containing all of the required information. Many people argued on that basis that their Notice to Appear did not state the hearing time and place, so the in absentia order should be rescinded.

But in Campos-Chaves v. Garland (2024), the Supreme Court held 5–4 that as long as the respondent received a notice of hearing complying with INA 239(a)(2) for the hearing that was missed, the in absentia order cannot be rescinded solely because the Notice to Appear lacked the time and place. In Matter of Laparra-DeLeon, 29 I&N Dec. 389 (BIA 2026), decided in December 2025 and designated as precedent in January 2026, the BIA restored the rule of the 2022 decision Matter of Laparra and reaffirmed this position. So the room for rescinding an in absentia order based on a defective Notice to Appear is now very small; the key question is whether you actually received a proper notice for that hearing.

New 2026 precedent: notice sent to an old address

In September 2026, in Matter of DIJI, 30 I&N Dec. 1 (BIA 2026), the BIA overruled the 2001 decision Matter of G-Y-R-. Under the new precedent, for in absentia purposes, written notice sent to the most recent address the respondent provided is sufficient, including an address provided before the Notice to Appear was issued; even if the respondent had moved and never actually saw the notice, he or she may be deemed to have received notice. This makes the "did not receive notice" ground harder to establish at the BIA level.

However, precedent from a federal court of appeals takes priority over BIA precedent within that circuit. According to the dissent in DIJI, the First, Seventh (including Illinois), Ninth and Eleventh Circuits had previously issued decisions consistent with or similar to the old rule, so the result may differ in those areas. Whether it applies, and how to prove your case, must be analyzed under the law of your specific circuit (as of October 11, 2026; check the latest case law).

Ordinary motions to reopen: INA 240(c)(7)

Apart from rescinding an in absentia order, after removal proceedings have ended (including after a judge orders removal or the BIA dismisses an appeal), you can also ask to reopen the case based on new facts — for example, newly available relief (such as approval of a family-based petition that allows you to apply for a green card) or changed conditions in your home country.

Number: Generally only one motion to reopen may be filed (INA 240(c)(7)(A); 8 CFR 1003.2(c)(2), 1003.23(b)(1)). In Matter of M-M-L-J-, 29 I&N Dec. 843 (BIA 2026), decided in August 2026, the BIA emphasized that only one is allowed in total, whether filed with the immigration court or the BIA (except for the statutory exception for battered spouses, children and parents), and that "equitable tolling" does not apply to the numerical limit.
Deadline: Within 90 days after the final administrative order of removal (INA 240(c)(7)(C)(i)).
Contents: The motion must state the new facts that will be proven at the reopened hearing and be supported by affidavits or other evidence (INA 240(c)(7)(B)). The new evidence must be material and must not have been available or able to be presented at the original proceeding. If the motion is based on newly available relief, it generally must also include the application for that relief and supporting documents (8 CFR 1003.2(c)(1), 1003.23(b)(3)).
Where to file: In principle, with the body that made the last decision — with the immigration court if the case ended there, or with the BIA if the BIA has issued a decision.
Whether it is granted: Even when the formal requirements are met, reopening is discretionary; the judge or the BIA may deny it for failure to establish prima facie eligibility (not prima facie eligible) or as a matter of discretion.

Motions to reconsider: INA 240(c)(6)

Number: Generally only one may be filed; after it is denied, you cannot seek reconsideration of that denial.
Deadline: Within 30 days after the final administrative order of removal.
Contents: The motion must specifically identify the errors of law or fact in the original decision, with supporting legal authority; it may also be based on a change in the law. Reconsideration is based on the existing record, and new evidence cannot be submitted — new evidence calls for a motion to reopen.
A motion to reconsider does not automatically stay removal (EOIR Policy Manual, BIA section 4.7).

Item	Rescinding an in absentia order	Motion to reopen	Motion to reconsider
Legal basis	INA 240(b)(5)(C)	INA 240(c)(7)	INA 240(c)(6)
Grounds	Exceptional circumstances; did not receive notice; in custody	New facts, new evidence, newly available relief	Errors of law or fact in the original decision, or a change in the law
Deadline	180 days for exceptional circumstances; otherwise at any time	Generally 90 days	30 days
Can new evidence be attached?	Yes	Required	No
Does filing automatically stay removal?	Yes, until the Immigration Judge decides	Generally no	No

Exceptions to the time and number limits

1. Asylum-based reopening for changed country conditions

Under INA 240(c)(7)(C)(ii), a motion to reopen to apply for asylum or withholding of removal based on changed conditions in the country of nationality or the country to which removal has been ordered is not subject to the 90-day deadline (8 CFR 1003.2(c)(3) also exempts it from the numerical limit). The evidence must be material and must not have been available or able to be presented at the original proceeding. Note:

What must change is country conditions; a change in personal circumstances alone (for example, adopting a religion in the U.S. or having children in the U.S.) is generally not enough unless you also show a material change in the home country's treatment of people in that situation;
You must provide evidence comparing conditions at the time of the original record with current conditions, and attach a new I-589 application;
These motions are reviewed strictly, and preparing the evidence is critical.

2. Reopening for domestic violence victims (VAWA)

INA 240(c)(7)(C)(iv) provides a special motion to reopen for people who have been battered or subjected to extreme cruelty by a U.S. citizen or green card holder spouse or parent (and certain children and parents): it generally must be filed within 1 year after the final removal order, with the deadline waivable for extraordinary circumstances or extreme hardship to a child; it must be accompanied by the corresponding application for relief (such as a VAWA self-petition or an application for special rule cancellation of removal), and the person must be physically present in the U.S. when the motion is filed, among other requirements. Even if an ordinary motion to reopen has already been filed, the law still allows one additional motion of this type (INA 240(c)(7)(A)). But in Matter of B-S-H-, 29 I&N Dec. 313 (BIA 2025), the BIA held that the waiver for "extraordinary circumstances or extreme hardship" applies only to the deadline and cannot be used to overcome the numerical limit. For related relief, see I-360 and EOIR-42B.

3. Sua sponte reopening

Immigration Judges and the BIA may reopen or reconsider a decided case "on their own motion" (sua sponte) at any time (8 CFR 1003.2(a), 1003.23(b)(1)), without time or number limits. But this is an extraordinary remedy reserved for truly exceptional situations (long-standing BIA precedents Matter of J-J- and Matter of G-D-), not a "backup route once the deadline has passed." Recent developments:

In December 2020, the Department of Justice issued a rule seeking to largely eliminate sua sponte reopening; the rule was enjoined by a federal court in 2021.
An EOIR final rule issued in May 2024 and effective July 29, 2024 ("Efficient Case and Docket Management in Immigration Proceedings," 89 Fed. Reg. 46742) restored and clarified the sua sponte reopening authority in the regulations.
In 2026, the BIA issued a series of precedents that significantly narrow its use: Matter of Yadav, 29 I&N Dec. 438 (BIA 2026), held that a bona fide marriage to a U.S. citizen after the removal order does not by itself constitute an "exceptional situation"; Matter of Herrera-Nunez, 29 I&N Dec. 695 (BIA 2026), held that favorable factors that arose many years after the removal order do not constitute an exceptional situation; Matter of K-K-U-J-, 30 I&N Dec. 81 (BIA 2026), held that where the respondent claimed to have been misled by someone into believing he or she did not need to appear, but the record did not support it, the judge erred in reopening sua sponte on that basis and rescinding the in absentia order.
Most federal courts of appeals hold that courts generally lack jurisdiction to review the BIA's discretionary refusal to reopen sua sponte (except for legal or constitutional errors; the rules vary by circuit).

Sua sponte reopening can therefore serve only as a supplemental argument in particular cases, not as the main basis for relief.

4. Equitable tolling and ineffective assistance of counsel

Most federal courts of appeals (including the Seventh Circuit, which covers Illinois) recognize that when a respondent has pursued his or her rights diligently but was prevented by extraordinary circumstances from filing on time, deadlines such as the 90-day deadline can be equitably tolled. The most common situation is ineffective assistance of counsel by a prior attorney — for example, an attorney who promised to appeal but never filed, or did not tell the client the hearing date. In Mata v. Lynch (2015), the U.S. Supreme Court confirmed that federal courts of appeals have jurisdiction to review the BIA's denial of a motion to reopen in which the respondent sought equitable tolling. But as noted above, in 2026 the BIA held that equitable tolling does not apply to the numerical limit.

A motion based on ineffective assistance of counsel generally must meet the procedural requirements of Matter of Lozada, 19 I&N Dec. 637 (BIA 1988):

An affidavit from the respondent describing in detail the agreement with prior counsel, what counsel promised to do, and what counsel actually did;
Prior counsel was informed of the allegations and given an opportunity to respond (attach the response, or state that there was none);
A statement of whether a complaint was filed with the appropriate attorney disciplinary authority, and if not, why not. In Matter of L-R-M-C- & V-A-M-M-, 29 I&N Dec. 757 (BIA 2026), the BIA reaffirmed that such motions must include a copy of the disciplinary complaint and proof of filing, or an explanation of why no complaint was filed.

In addition, you generally must show prejudice — that is, that the outcome might have been different without counsel's error. Also note: in Matter of Z-R-C-N-, 29 I&N Dec. 523 (BIA 2026), the BIA held that if the person you hired was not an attorney and did not hold himself or herself out as one, you cannot raise a claim of "ineffective assistance of counsel." This is also a reminder that immigration court cases should be entrusted only to licensed attorneys or EOIR-accredited representatives, not to "immigration consultants" or "notarios."

Is removal stayed while a motion is pending?

Situation	Automatic stay of removal?	Authority
Motion to rescind an in absentia order filed with the immigration court	Yes, until the Immigration Judge decides	INA 240(b)(5)(C); 8 CFR 1003.23(b)(4)(ii)
Other motions to reopen, motions to reconsider	No; a stay must be requested separately	8 CFR 1003.2(f); 8 CFR 1003.23(b)
Appeal to the BIA of an Immigration Judge's denial of reopening	No; the BIA may grant a stay in its discretion	8 CFR 1003.6(b)
Appeal to the BIA of an Immigration Judge's removal decision (not a motion)	Yes, during the appeal period and while the appeal is pending	8 CFR 1003.6(a); see BIA appeals

Where there is no automatic stay, you can ask the Immigration Judge or the BIA for a stay of removal, or file I-246 with ICE to request a stay. In June 2026, in Matter of Herrera-Nunez, 29 I&N Dec. 691 (BIA 2026), the BIA announced that a person with a final removal order who asks the BIA for a stay in connection with a motion to reopen or reconsider must first request a stay from DHS before the BIA will consider the stay request; this requirement applies to stay requests filed after that decision. When the person is already in ICE detention and facing imminent removal, time is measured in days or even hours; contact an attorney immediately.

In addition, the federal regulations contain a "departure bar": a motion filed after the respondent has left the United States, or a departure while a motion is pending, may be treated as a withdrawal of the motion (8 CFR 1003.2(d), 1003.23(b)(1)). Several federal courts of appeals have held that this provision cannot be used to refuse to consider a statutory motion to reopen, but the rules vary by circuit. While any motion is pending, consult an attorney before leaving the country.

In practice: get the records first, then decide

When handling in absentia orders and reopening, the first step is not drafting the motion but finding out exactly "what happened at the time." We usually proceed as follows:

Check the case status. Use the A-number on EOIR Automated Case Information (ACIS) to check the current status and the date of the next hearing or final decision, and confirm which court has the case and whether there is already a final removal order.
Obtain the court file from EOIR. Through a Freedom of Information Act (FOIA) request or the electronic system once an attorney has entered an appearance, obtain the Record of Proceeding, including the Notice to Appear, notices of hearing, the service address, the judge's decision, and the hearing recordings. The recordings can show whether the judge orally advised you in court of the hearing time and the consequences of failing to appear, which bears directly on the 10-year bar under INA 240(b)(7) and on whether notice was valid.
Obtain files from DHS. Submit FOIA requests to ICE, USCIS (for the A-file, see G-639) and, when needed, CBP, to review entry records, records of when the Notice to Appear was issued and served, and which addresses you have provided to the government.
Gather your own evidence. Records of your moves (leases, utility bills), address change records, medical records from the time, custody records, and communications and payment records with prior counsel or the person who handled your case.
Decide which route to take. Based on the records, determine: whether you are within 180 days and can prove exceptional circumstances; whether you truly did not receive proper notice; whether there is newly available relief and whether a motion can be filed within 90 days or under an exception; whether there was ineffective assistance of counsel and whether the Lozada requirements can be met; and whether a stay of removal must be requested at the same time. Because generally only one motion to reopen is allowed, all grounds must be raised at once, and all evidence attached at once.

FOIA requests take time. If a deadline is approaching or the person is already detained, the attorney may need to file the motion and request a stay first, then supplement the record later; this must be weighed case by case.

Recent changes (verified as of October 11, 2026)

Tighter BIA precedents: In 2025–2026 the BIA issued a number of precedents, including restoring the Laparra precedent (Laparra-DeLeon), overruling G-Y-R- (DIJI), emphasizing that only "one" motion to reopen is allowed (M-M-L-J-), narrowing sua sponte reopening (Yadav, Herrera-Nunez, K-K-U-J-), and requiring that a stay first be requested from DHS (Herrera-Nunez). Circuit court precedent may differ by region and must be checked case by case.
New fees: H.R. 1, signed in July 2025, added statutory fees for a number of applications, motions and appeals in immigration court, and EOIR issued a corresponding interim final rule in June 2026. For filing fees for motions and fee waiver rules, check EOIR's current publications.
Enforcement changes: Reportedly, ICE detention and removal of people with final removal orders have increased significantly in recent years. If you have an in absentia order, the sooner it is evaluated, the better.

How we can help

Obtain the EOIR court file and hearing recordings, and submit FOIA requests to ICE, USCIS and other agencies, to establish the record of notices, service and addresses;
Evaluate the feasibility of rescinding the in absentia order, reopening, reconsideration and the various exceptions, and explain the risks;
Draft the motion, affidavits and evidence index, and at the same time prepare the relief to be sought after reopening (such as asylum, cancellation of removal or adjustment of status);
Request a stay of removal from the Immigration Judge, the BIA or ICE on your behalf; if a motion is denied, evaluate an appeal to the BIA or a petition for review in federal court.

We cannot guarantee that any motion will be granted. Whether a motion is worth filing, and when, depends on the record and the evidence.

Frequently asked questions

I moved and never received the hearing notice, and I was ordered removed in absentia. Can the order be rescinded?

You can move to rescind "at any time" on the ground that you did not receive notice, but if the notice was sent to the last address you provided to the court or the government, the law presumes it was delivered, and if you did not update your address, the law does not even require notice to be sent. The BIA's 2026 precedent Matter of DIJI further broadened what counts as "valid notice," though precedent in some circuits may differ. Whether the order can be rescinded depends on the address and service records in the file, whether you reported your change of address, and the precedent in your circuit.

I was sick on the day of the hearing. Can I still rescind the in absentia order six months later?

The deadline to rescind an in absentia order based on "exceptional circumstances" is 180 days after the order, and it must be a circumstance beyond your control, such as a serious illness, supported by medical documentation. After 180 days, you generally can no longer rely on exceptional circumstances and can only consider other grounds (such as not receiving notice, or equitable tolling due to ineffective assistance of counsel), which are considerably more difficult.

My Notice to Appear didn't list a hearing time. Is the in absentia order invalid?

Not necessarily. Under the Supreme Court's 2024 decision in Campos-Chaves v. Garland, as long as you received a proper notice of hearing for the hearing you missed, you cannot rescind the in absentia order solely because the Notice to Appear lacked the time and place. The question is whether you received notice of that hearing and whether the notice was proper.

I married a U.S. citizen after my removal order. Can I reopen my case to apply for a green card?

If you are still within the 90-day deadline and have not previously filed a motion to reopen, you can evaluate a motion to reopen based on newly available relief. After 90 days, the options are often limited to sua sponte reopening or a joint motion with DHS, and in Matter of Yadav (2026) the BIA held that a marriage after the removal order does not by itself constitute an exceptional situation for sua sponte reopening. People with in absentia orders must also keep in mind the 10-year bar on adjustment of status under INA 240(b)(7). An attorney must evaluate this based on the record.

After I file a motion to reopen, can ICE still remove me?

Except for a motion to rescind an in absentia order, filing a motion to reopen or reconsider does not by itself automatically stop removal. You must separately request a stay from the Immigration Judge or the BIA; under the BIA's 2026 precedent, before asking the BIA for a stay, you must first request one from ICE (I-246).

My previous representative never filed my documents. What can I do?

If that person was a licensed attorney, you can evaluate a motion to reopen based on ineffective assistance of counsel and request equitable tolling, but you must meet the Matter of Lozada requirements (an affidavit, notice to prior counsel, and a complaint to the disciplinary authority or an explanation of why none was filed) and show prejudice. If the person was not an attorney and did not claim to be one, you generally cannot raise "ineffective assistance of counsel," and other options must be evaluated.

If my motion to reopen is denied, can I file another one?

Generally only one motion to reopen may be filed (except for statutory exceptions such as changed country conditions for asylum and VAWA). After a denial, you should usually appeal to the BIA or file a petition for review with a federal court of appeals within the deadline, rather than filing a new motion. See BIA appeals and federal court review.