In Absentia Order

An in absentia removal order is issued by an immigration judge when a respondent fails to appear for a scheduled court hearing. Under the Immigration and Nationality Act, if the respondent has been properly served with notice of the hearing and does not attend, the judge may proceed in their absence and order removal based on the charges in the Notice to Appear (NTA).

In absentia orders have become increasingly common as the immigration court backlog has grown. With hearings often scheduled years after the initial NTA is filed, respondents may have moved, lost track of hearing dates, or never received proper notice. EOIR data shows that in absentia rates have exceeded 40% in some recent fiscal years, meaning nearly half of scheduled hearings resulted in no-show orders.

There are pathways to reopen an in absentia order, but they are limited. A respondent can file a motion to reopen if they can demonstrate: (1) they did not receive proper notice of the hearing, (2) they were in federal or state custody at the time, or (3) exceptional circumstances prevented their attendance (such as a serious illness, death in the family, or natural disaster). Motions based on lack of notice have no time limit, but motions based on exceptional circumstances must generally be filed within 180 days.

The in absentia issue highlights systemic problems in the immigration court system. Many respondents, particularly those without attorneys, do not understand the notice system, cannot read English-language court documents, or have addresses that change frequently. Some may never receive the hearing notice at all if it is sent to an outdated address.

Research suggests that respondents with legal representation are significantly less likely to receive in absentia orders, underscoring the importance of access to counsel in the immigration system.