Missed immigration court: in absentia removal orders, the 180-day motion and what the law says about notice

If a person does not attend a removal hearing after written notice, an immigration judge must order removal in absentia when DHS proves notice and removability by clear, unequivocal and convincing evidence. The order can be rescinded only by a motion to reopen: within 180 days for exceptional circumstances, or at any time for no notice or federal or state custody. There is no appeal to the BIA.

"In absentia" means "in the absence of". In immigration court it describes an order of removal entered when the person was not there. The law gives the immigration judge no choice once its conditions are met: the statute says the person "shall be ordered removed in absentia". The order has serious consequences, and the ways of undoing it are narrow, have fixed deadlines and cannot be appealed to the Board of Immigration Appeals.

This page sets out, as at 9 October 2026, what the statute and regulations say: what DHS has to prove, what counts as notice, the consequences of an order, the three grounds and two deadlines for a motion to reopen, what the order costs if ICE later arrests the person, and the differences between today's rules for removal proceedings and the older rules for deportation and exclusion cases. It describes rules. It does not say whether any person's absence will fall within one of the grounds. Those are questions of fact and law for an attorney or DOJ-accredited representative, and the deadlines in this area are strict, so a person who has missed a hearing, or may have, should get regulated help immediately. Notaries public, notarios and immigration consultants are not lawyers and cannot give immigration legal advice. Only a licensed attorney or a DOJ-accredited representative can.

Quotation marks mean the exact words of the statute, the regulation or the source named.

The rule: when the judge must order removal

The statute is 8 U.S.C. 1229a(b)(5)(A) (INA section 240(b)(5)(A)):

"Any alien who, after written notice required under paragraph (1) or (2) of section 1229(a) of this title has been provided to the alien or the alien's counsel of record, does not attend a proceeding under this section, shall be ordered removed in absentia if the Service establishes by clear, unequivocal, and convincing evidence that the written notice was so provided and that the alien is removable (as defined in subsection (e)(2)). The written notice by the Attorney General shall be considered sufficient for purposes of this subparagraph if provided at the most recent address provided under section 1229(a)(1)(F) of this title."

The regulation, 8 CFR 1003.26(c), repeats the two things DHS must prove: that the person "is removable" and that "written notice of the time and place of proceedings and written notice of the consequences of failure to appear were provided to the alien or the alien's counsel of record", each by "clear, unequivocal, and convincing evidence".

Three points stand out.

DHS carries the burden. The order cannot be entered on non-attendance alone. DHS has to prove notice and has to prove removability.
Notice goes to counsel as well as the person. Notice to the "counsel of record" counts.
The notice has two parts. Written notice of the time and place, and written notice of what happens if the person does not attend. The Notice to Appear carries both (8 U.S.C. 1229(a)(1)(G)); see our page on the Notice to Appear.

What counts as notice

Notice depends on addresses, and the law puts a duty on the person to keep one on file.

The person's duty. The Notice to Appear must tell the person "that the alien must immediately provide (or have provided) the Attorney General with a written record of an address and telephone number" and report any change (1229(a)(1)(F)). The regulation, 8 CFR 1003.15(d), turns "immediately" into five days: the person must give the court a written address "within five days of service" if the NTA lacks a correct one, and "Within five days of any change of address" must give written notice on Form EOIR-33.

Where notice is sent. "Written notice to the alien shall be considered sufficient for purposes of this section if it was provided at the most recent address provided by the alien" (1003.26(d)).

When no notice is needed. The statute says: "No written notice shall be required under subparagraph (A) if the alien has failed to provide the address required under section 1229(a)(1)(F) of this title" (1229a(b)(5)(B)). 8 CFR 1003.26(d) says the same: "If the respondent fails to provide his or her address as required under § 1003.15(d), no written notice shall be required for an Immigration Judge to proceed with an in absentia hearing."

Changes to the hearing. When a hearing is moved, 8 U.S.C. 1229(a)(2)(A) requires written notice of "the new time or place" and "the consequences under section 1229a(b)(5) of this title of failing, except under exceptional circumstances, to attend". For a person not in detention that notice is not required if the person never gave an address (1229(a)(2)(B)).

Where the person has a representative. Notice to counsel of record is notice (1229a(b)(5)(A)). 8 CFR 1292.5(a) says notices and service go "by or to ... the attorney or representative of record, or the person himself if unrepresented."

Exceptions inside the regulation. 1003.26(d) does not apply "in the event that the Immigration Judge waives the appearance of an alien under § 1003.25".

All of this is why the address a person has on file with the court is the practical centre of an in absentia case: DHS's proof of notice usually runs through it. Our page on checking your immigration court case status explains EOIR's lookup tools and why EOIR calls the court's documents the official source.

What an in absentia order does

It is a removal order. The person is "ordered removed in absentia". It is an order entered under section 240, the same proceeding as an order after a hearing.

It carries a 10-year bar on some relief. 8 U.S.C. 1229a(b)(7): "Any alien against whom a final order of removal is entered in absentia under this subsection and who, at the time of the notice described in paragraph (1) or (2) of section 1229(a) of this title, was provided oral notice, either in the alien's native language or in another language the alien understands, of the time and place of the proceedings and of the consequences under this paragraph of failing, other than because of exceptional circumstances (as defined in subsection (e)(1)) to attend a proceeding under this section, shall not be eligible for relief under section 1229b, 1229c, 1255, 1258, or 1259 of this title for a period of 10 years after the date of the entry of the final order of removal."

The bar applies only if oral notice was given in a language the person understands. The sections listed cover cancellation of removal (1229b), voluntary departure (1229c) and adjustment of status of a nonimmigrant to permanent residence (1255), among others (1258 is change of nonimmigrant classification, and 1259 is the record of admission for permanent residence for certain people who entered before 1 January 1972). Whether the bar applies to a given order is a question of fact about what notice was given.

It cannot be appealed to the Board. 8 CFR 1240.15: "no appeal shall lie from an order of removal entered in absentia." EOIR's Practice Manual says the same: "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."

Federal court review is narrow. 8 U.S.C. 1229a(b)(5)(D): a petition for review of an in absentia order "shall (except in cases described in section 1252(b)(5) of this title) be confined to (i) the validity of the notice provided to the alien, (ii) the reasons for the alien's not attending the proceeding, and (iii) whether or not the alien is removable." The petition has a 30-day deadline from the final order (8 U.S.C. 1252(b)(1)).

An ICE fee if the person is arrested. This is a separate financial consequence set by the 2025 budget law (H.R. 1, section 100016, codified at 8 U.S.C. 1814). DHS's notice at 91 FR 62542 (1 October 2026) says the fee for aliens ordered removed in absentia and subsequently arrested by ICE is $5,130 for fiscal year 2026 and $5,300 from 16 October 2026. It applies "to aliens who have been ordered removed in absentia by an immigration judge pursuant to INA section 240(b)(5) for failure to attend removal proceedings and are subsequently arrested by ICE." The notice states that there is an exception "for aliens whose removal order in absentia is rescinded" and that "no waivers are available for this enforcement fee."

A proposed increase. DHS proposed on 20 May 2026 (91 FR 29380) to raise the fee "from $5,130 to $18,000" with annual inflation adjustments. The comment period closed on 22 June 2026. It is a proposed rule, not in force. The 1 October 2026 notice announcing $5,300 for FY2027 was issued after the proposal; check the Federal Register for any final rule before relying on either number.

Undoing the order: the motion to reopen

The route is a motion to reopen filed with the immigration judge. The statute, 8 U.S.C. 1229a(b)(5)(C), is exclusive in its wording: the order "may be rescinded only" in two ways.

"(i) upon a motion to reopen filed within 180 days after the date of the order of removal if the alien demonstrates that the failure to appear was because of exceptional circumstances (as defined in subsection (e)(1)), or

(ii) upon a motion to reopen filed at any time if the alien demonstrates that the alien did not receive notice in accordance with paragraph (1) or (2) of section 1229(a) of this title or the alien demonstrates that the alien was in Federal or State custody and the failure to appear was through no fault of the alien."

So there are three grounds, on two deadlines:

Exceptional circumstances: 180 days.
No notice (a defective Notice to Appear or change notice, or no written notice at all): any time.
Federal or State custody, through no fault of the person: any time.

Exceptional circumstances has a statutory meaning, 8 U.S.C. 1229a(e)(1): "exceptional circumstances (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) beyond the control of the alien." EOIR's Practice Manual repeats it.

Rules that go with the motion (8 CFR 1003.23(b)(4)(ii) and the Practice Manual, chapter 5.9):

"An alien may file only one motion pursuant to this paragraph (b)(4)(ii)."
"The filing of a motion under this paragraph (b)(4)(ii) shall stay the removal of the alien pending disposition of the motion by the immigration judge." EOIR's manual: "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."
The 90-day limit for ordinary motions to reopen does not govern; for the in absentia motion the deadlines above do.
The manual says the motion "should be filed with a cover page labeled 'MOTION TO REOPEN AN IN ABSENTIA ORDER'", accompanied by Form EOIR-28 if the person is represented by a practitioner of record (or Form EOIR-61 if a practitioner gave document assistance), and that "a change of address form (EOIR-33/IC) should be filed with the motion."
"Responses to motions to reopen to rescind in absentia orders are due within ten (10) days after the motion was received by the immigration court, unless otherwise specified by the Immigration Judge."
The motion must follow the content rules in 1003.23(b)(1)(i)-(ii): in writing, signed, in English, with disclosures about any judicial proceeding and any pending criminal proceeding, and served on the ICE Office of the Principal Legal Advisor. Our page on motions to reopen lists them.

The decision is the judge's: "The decision to grant or deny a motion to reopen or a motion to reconsider is within the discretion of the immigration judge" (1003.23(b)(1)(iv)).

Fee. 8 CFR 1003.24(b)(2)(iii) lists among motions needing no filing fee a motion to reopen an in absentia order "filed pursuant to ... section 240(b)(5)(C)(ii)", which is the no-notice and custody ground. That paragraph does not mention the 180-day exceptional-circumstances ground. The standard fee for a motion to the immigration court is $1,095 (8 CFR 1103.7(b)(2), effective 1 October 2026), and a fee waiver may be requested with an affidavit or unsworn declaration (1003.24(d)). Which applies to a particular motion is a question to settle with a regulated representative before filing.

Worked examples of the two deadlines

These are illustrations of how the text works, with made-up facts, not predictions.

Example 1: exceptional circumstances. An order in absentia is entered on Wednesday 14 October 2026 because a person did not attend a hearing. The person says a serious illness kept them away. The motion must be filed "within 180 days after the date of the order of removal". Counting 180 days from 14 October 2026 gives Monday 12 April 2027. The count starts on the date of the order, not the date the person learned of it. The person would have to show the failure to appear "was because of exceptional circumstances" in the statutory sense, which is a hard evidence question.

Example 2: no notice. The same order is entered, but the person had moved and the court mailed the notice to an old address. The "at any time" ground asks whether the person "did not receive notice in accordance with paragraph (1) or (2) of section 1229(a)". But the statute also says notice is sufficient "if provided at the most recent address provided", and that no notice is required if the person never provided an address. So the facts about what address was on file, when, and whether the person had complied with the five-day rule in 8 CFR 1003.15(d) are central. A judge applies the rules to those facts.

Example 3: custody. The person was held by ICE or in jail at the hearing time, with no way to attend. The statute allows a motion "at any time" if the person "was in Federal or State custody and the failure to appear was through no fault of the alien".

Example 4: counsel got the notice. The person had an attorney of record who received the hearing notice and did not tell the person. Under the statute, notice to "the alien's counsel of record" is notice. Whether and how an attorney's failure fits one of the grounds is a legal question, and other remedies against that attorney sit outside this page.

In every example, a separate question is whether the person has relief to apply for if the order is rescinded, and the 10-year bar in 1229a(b)(7) may affect that. A regulated representative looks at both.

Older cases: deportation and exclusion proceedings

Proceedings begun before 1 April 1997 were deportation or exclusion proceedings, and the regulations still contain their rules. They differ. For an order entered in absentia in deportation proceedings, 8 CFR 1003.23(b)(4)(iii)(A) allows a motion to reopen within 180 days if the person shows the failure to appear "was because of exceptional circumstances beyond the control of the alien (e.g., serious illness of the alien or serious illness or death of an immediate relative of the alien, but not including less compelling circumstances)", or at any time if the person shows no notice or federal or state custody. The filing of such a motion "shall stay the deportation of the alien" (1003.23(b)(4)(iii)(C)). The time and number limits do not apply to those motions (1003.23(b)(4)(iii)(D)). For exclusion cases a motion must be "supported by evidence that the alien had reasonable cause for his failure to appear" (1003.23(b)(4)(iii)(B)).

EOIR's Practice Manual says: "The standards for motions to reopen to rescind in absentia orders in deportation and exclusion proceedings differ from the standards in removal proceedings." A person with a pre-1997 case, or an old order, needs a representative who works with those rules.

Who may help, and what the help involves

Only attorneys and DOJ-accredited representatives of recognized organizations (and the few other categories in 8 CFR 1292.1(a)) may represent a person in immigration court. 1292.1(e): "Except as set forth in this section, no other person or persons shall represent others in any case." Notaries public, notarios and immigration consultants cannot file a motion on someone's behalf. Texas Government Code 406.017 and New York General Business Law 460-d are examples of state laws aimed at notarios who claim otherwise. Our pages on notarios versus immigration lawyers and immigration scams explain the warning signs.

Work on a motion to reopen an in absentia order typically involves:

getting the record of proceedings and the hearing notices to see what was sent, to what address, and when (a "Request for ROP" goes to the court, per EOIR);
identifying which of the three grounds the facts fit, and collecting evidence of the facts: medical records, custody records, address history, mailing evidence;
preparing a sworn statement or declaration;
preparing the motion, cover page, appearance form, proof of service and fee or fee waiver; and
filing before the deadline and, where relevant, requesting a stay.

That list describes the work. It is not advice. In particular, it does not tell any person which ground applies. An attorney or accredited representative does that after reading the file. See our page on deportation defense and who may represent you for how to check credentials.

Finding a licensed attorney or accredited representative

Migratio's directory lists immigration attorneys and DOJ-accredited representatives. Listings are shown in a neutral order with factual filters (state, language, attorney or accredited representative). Migratio does not recommend, rank or match any lawyer, and it is not a lawyer referral service. Check any listing yourself against the state bar or the EOIR roster before you sign anything.

See attorneys and accredited representatives in the directory.

Notaries public, notarios and immigration consultants are not lawyers and cannot give immigration legal advice. Only a licensed attorney or a DOJ-accredited representative can.

Migratio is not a law firm and does not give legal advice. Only a licensed attorney or a DOJ-accredited representative can advise you.

Questions people ask

What happens if I miss immigration court?

If DHS proves by clear, unequivocal and convincing evidence that written notice was provided and that the person is removable, the immigration judge "shall" order removal in absentia (8 U.S.C. 1229a(b)(5)(A)). The order can be rescinded only by a motion to reopen on the grounds in 1229a(b)(5)(C).

How long do I have to reopen an in absentia order?

180 days from the order if the reason was exceptional circumstances; at any time if the person did not receive notice or was in federal or state custody through no fault of their own (8 U.S.C. 1229a(b)(5)(C); 8 CFR 1003.23(b)(4)(ii)). Only one such motion is allowed.

Can I appeal an in absentia order to the BIA?

No. 8 CFR 1240.15 says no appeal lies from an order of removal entered in absentia, and EOIR's Practice Manual says the Board has no jurisdiction over direct appeals of those orders.

Does filing the motion stop removal?

Yes, for an in absentia order in removal proceedings: "The filing of a motion under this paragraph (b)(4)(ii) shall stay the removal of the alien pending disposition of the motion by the immigration judge" (8 CFR 1003.23(b)(4)(ii)).

What is the ICE fee after an in absentia order?

DHS's 1 October 2026 notice sets $5,300 from 16 October 2026 for people ordered removed in absentia and later arrested by ICE (up from $5,130 for FY2026), with no waivers, and an exception if the order is rescinded. DHS has separately proposed $18,000; that is a proposed rule, not in force.

What counts as exceptional circumstances?

8 U.S.C. 1229a(e)(1) gives examples: battery or extreme cruelty, serious illness of the person, or serious illness or death of a spouse, child or parent, "but not including less compelling circumstances", all "beyond the control of the alien". Whether a person's reason qualifies is a legal question.

Sources

Last checked 2026-10-09.

Related guides

Notice to Appear (NTA): what it is, what it must say and what happens next — A Notice to Appear starts removal proceedings once it is filed with an immigration court. The statute lists what it must contain, sets a minimum of 10 days before the first hearing and requires an address on file with the court. Missing a hearing after proper written notice can lead to an order of removal in the person's absence.
How to check your immigration court case status (EOIR ACIS, phone line and the court) — EOIR runs an Automated Case Information System that shows basic status for certain immigration court and Board of Immigration Appeals cases. You look up a case with the A-number and a nationality, online or by phone. EOIR says the documents the court or the Board send to you or your representative are the only official determinations.
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