BIA Holds Bad Advice From a Non-Lawyer Does Not Excuse a Missed Hearing

The Board of Immigration Appeals has sustained a DHS appeal and reversed an Immigration Judge's sua sponte rescission of an in absentia removal order, holding that a respondent's claim that a non-attorney misled him about the need to appear at his hearing did not amount to the "exceptional circumstances" required to reopen. The respondent, a native and citizen of Uzbekistan, argued he reasonably relied on the individual's assurances, but the Board noted that both of the respondent's own continuance motions listed him as proceeding pro se and bore his signature.

Consistent with Matter of Z-R-C-N-, the Board reiterated that bad advice from a non-lawyer does not excuse a failure to appear and emphasized that sua sponte authority to reopen a case must be reserved for truly exceptional situations, not invoked routinely. The motion to reopen was denied and the in absentia removal order reinstated.

The full text of Matter of K-K-U-J- can be found here: https://www.justice.gov/eoir/media/1462356/dl?inline

Ninth Circuit Holds In Absentia Order Violated Due Process Where

The Ninth Circuit has granted a petition for review filed by a Mexican man ordered removed in absentia after the government's only hearing notice was mailed to a residential address his relatives provided on a bond form asking where he would "reside," not his mailing address, and the notice was returned undeliverable.

The Court held that the government violated due process by relying on an address obtained by asking the wrong person the wrong question, and by taking no further steps after the notice came back undeliverable, particularly where the petitioner's sworn, uncontradicted statement said he had told the court his address to receive notices. The Court found additional practicable alternatives were obviously available, such as calling the phone number on the bond form, and remanded without need for further factfinding. A dissenting judge argued the record did not actually show the petitioner gave the government a correct mailing address and would have remanded to the agency to determine in the first instance what alternative notice steps were practicable.

The full text of Meza Medina v. Blanche can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2026/09/18/20-70017.pdf

BIA Finds Immigration Judge Must Proceed In Absentia for Minors When Notice and Removability are Established

The Board of Immigration Appeals has determined that when respondents, including minor respondents, fail to appear for a hearing, and DHS has established proper notice and removability, the Immigration Judge lacks authority to administratively close the proceedings and must proceed in absentia. The Board rejected the Immigration Judge’s conclusion that it would violate the minor respondents’ due process rights to order them removed based on their mother’s failure to bring them to court, reaffirming that an adult relative who receives notice on behalf of a minor bears the responsibility to ensure the minor appears.

The Board further noted that the statutory remedy for seeking rescission of an in absentia order remains available to the respondents.

The full text of Matter of Orozco Becerra can be found here: https://www.justice.gov/eoir/media/1438621/dl?inline

BIA Rules that IJ Should Enter In Absentia even when DHS does not Appear

The Board of Immigration Appeals has determined that when a non-citizen fails to appear, and DHS has filed some evidence of alienage (including an I-213), the Immigration Judge should proceed in absentia, even if DHS has not appeared to make the motion.

The full text of Matter of Bolivar-Bolivar can be found here: https://www.justice.gov/eoir/media/1435616/dl?inline

BIA Finds that Objection to Noncompliant NTA must be Raised by Non-Citizen

The Board of Immigration Appeals has determined that only a non-citizen can raise an objection to a non-compliant Notice to Appear; an Immigration Judge may not terminate proceedings absent an objection by the non-citizen. As such, when a non-citizen fails to appear at a hearing, the Immigration Judge may not dismiss the proceedings based on the non-compliant Notice to Appear.

The full text of Matter of Lopez-Orellana an be found here: https://www.justice.gov/eoir/media/1432911/dl?inline

Ninth Circuit Rejects Per Se Rule that Traffic is Never Exceptional Circumstance

The Ninth Circuit has rejected a per se rule that traffic can never be an exceptional circumstance that excuses missing a hearing in immigration court.

“We have never adopted a rule that traffic (or any other circumstance) is per se unexceptional. And we reject any bright-line rules about what can or cannot qualify as an exceptional circumstance because the statutory test depends on the totality of the circumstances in each petitioner’s case.”

“And more to the point, the fifteen-minute cushion petitioners gave themselves did not cause their failure to appear. Petitioners were two hours late for their hearing, and it was the two major accidents causing a ten-mile backup that caused them to be late. Even if they gave themselves an extra ninety minutes to get to court, they still would have been late because of the severe traffic that morning. Exercising diligence does not mean a petitioner must predict the very ‘extraordinary circumstance’ they contend caused their failure to appear. The BIA must consider petitioners’ diligence based on what a reasonable person would do under the circumstances, without the benefit of 20/20 hindsight.'“

The full text of Montejo-Gonzalez v. Bondi can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2026/02/05/21-304.pdf

Ninth Circuit Addresses Exceptional Circumstances for Missing Hearing

The Ninth Circuit has addressed the facts the agency must consider when determining if a non-citizen missed a hearing in Immigration Court due to exceptional circumstances. Namely, the agency must consider the totality of the circumstances, including whether the non-citizen had a motive to miss the hearing and whether the refusal to reopen would result in unconscionable circumstances. In this case, the minor children would be able to derive citizenship through their naturalized father if they were able to obtain permanent residency, and as such, the Court found that a refusal to reopen would cause unconscionable hardship. In addition, the non-citizens showed diligence following the issuance of their in absentia removal order by driving to court and speaking to the clerk, despite encountering two major car accidents, and promptly filing their motion to reopen. The court also emphasized that non-citizens are not required to make a prima facie showing of eligibility for relief to reopen an in absentia removal order.

The full text of Montejo-Gonzalez v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/10/17/21-304.pdf

The order granting rehearing en banc can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2025/07/08/21-304.pdf

Ninth Circuit Remands Motion to Reopen In Absentia

Two years ago, the Ninth Circuit determined that a court may not issue an in absentia removal order when the Notice to Appear is missing the time and date of the first removal hearing. “We grant Singh’s petition and hold that noncitizens must receive a Notice to Appear in a single document specifying the time and date of the noncitizen’s removal proceedings, otherwise any in absentia removal order directed at the noncitizen is subject to rescission pursuant to 8 U.S.C. § 1229a(b)(5)(C)(ii).” The court rejected the Board’s contrary determination in Matter of Laparra.

The full text of Singh v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/02/04/20-70050.pdf

On remand from the Supreme Court (which rejected the Ninth Circuit’s analysis about the implications of a Notice to Appear missing the first hearing information as it relates to issuance of an in absentia removal order), the Ninth Circuit again remanded this petition for review to the agency, noting the agency failed to consider the totality of the circumstances, including his eligibility for relief, the advancement of his hearing date by the court system, and the role his attorney played.

An updated decision can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2024/09/17/20-70050.pdf

Eleventh Circuit Affirms Denial of Motion to Reopen where Non-Citizen did not Correct Address on NTA

The Eleventh Circuit has affirmed the agency’s refusal to reopen proceedings for a non-citizen who did not correct an erroneous address on the Notice to Appear.

The full text of Rosales-Mendez v. Attorney General can be found here:

https://media.ca11.uscourts.gov/opinions/pub/files/202213164.pdf

Supreme Court Finds that Incomplete NTA does not Preclude Issuance of In Absentia Order

The Supreme Court has determined that an Immigration Judge may order removed in absentia a non-citizen who received a Notice to Appear lacking the time and date of his first hearing, if the Immigration Court subsequently mailed a notice of hearing to the individual with that information.

The full text of Campos-Chaves v. Garland can be found here:

https://www.supremecourt.gov/opinions/23pdf/22-674_bq7d.pdf

Fourth Circuit Finds that Putative NTA Precludes In Absentia

The Fourth Circuit has found that a Notice to Appear (NTA) missing the time and date of the first hearing precludes the entry of an in absentia removal order. This remains true even if the non-citizen moves from the address listed on the putative NTA and does not notify the agency.

The full text of Lazo-Gavidia v. Garland can be found here:

https://www.ca4.uscourts.gov/opinions/202306.P.pdf

Third Circuit Finds Incomplete NTA Precludes In Absentia Removal Order

The Third Circuit has determined that an incomplete Notice to Appear (i.e., one lacking the date and time of a first hearing) precludes the entry of an in absentia removal order. “According to the Department, this disjunctive phrasing makes Madrid-Mancia’s defective NTA immaterial. Madrid-Mancia got a ‘Notice of Hearing,’ and that alone, it concludes, is enough for in absentia removal. That is not enough because § 1229a(b)(5)(A) always requires a complete NTA. And the Attorney General cannot cure defects in an NTA by sending out a self-styled ‘Notice of Hearing’ because announcing the time and date of a removal hearing for the first time is not a ‘change or postponement’ in the time or place.”

The full text of Madrid-Mancia v. Attorney General can be found here:

https://www2.ca3.uscourts.gov/opinarch/212291p.pdf

Fifth Circuit Affirms In Absentia for Failure to Correct Typo on NTA

The Fifth Circuit has determined that a non-citizen who received an NTA with an address bearing a single typo, and who failed to correct the address with the court, is not entitled to written notice of his hearing, even if the typo was made by an immigration officer. The court was not persuaded that the non-citizen must have provided an accurate address or otherwise corrected the address by the fact that the bag and baggage letter was sent to the correct address.

The full text of Nivelo Cardenas v. Garland can be found here:

https://www.ca5.uscourts.gov/opinions/pub/20/20-60778-CV0.pdf

Ninth Circuit Remands Motion to Reopen

The Ninth Circuit has remanded a motion to reopen filed by a pro se applicant who missed her first hearing, and contacted the immigration court within a week to inquire about her in absentia hearing. The court found that the applicant’s statements of non-receipt of the hearing notice were entitled to credibility in the absence of contrary evidence.

The full text of Perez-Portillo v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/12/30/20-73486.pdf

Fifth Circuit Distinguishes Decision in Rodriguez

The Fifth Circuit has distinguished its decision in Rodriguez v. Garland - which precluded entry of an in absentia order when the Notice to Appear was missing the time and date of the first hearing and the applicant did not receive a notice of hearing. In the instant case, the petitioner admitted that he did receive the notice of hearing, and therefore, the Court declined to mandate reopening based on the defective Notice to Appear.

The decision in Campos-Chaves v. Garland can be found here:

https://www.ca5.uscourts.gov/opinions/pub/20/20-60262-CV1.pdf

First Circuit Finds In Absentia Must be Rescinded when NTA Lacks Information about First Hearing

The First Circuit has determined that an in absentia order must be rescinded when the Notice to Appear is missing the date of the first removal hearing. In so doing, the First Circuit disagreed with the Board of Immigration Appeals’ precedential decision in Matter of Laparra-Deleon.

The full text of Laparra-Deleon v. Garland can be found here:

http://media.ca1.uscourts.gov/pdf.opinions/22-1081P-01A.pdf

Eleventh Circuit Affirms In Absentia Order

The Eleventh Circuit has determined that a petitioner who was served a defective Notice to Appear (missing the time and place of his first hearing) can still be ordered removed in absentia if he moved after receipt of the NTA and before issuance of a notice of hearing, but did not update the immigration court about his new address.

The full text of Dragomirescu v. Attorney General can be found here:

https://media.ca11.uscourts.gov/opinions/pub/files/202013705.pdf

Ninth Circuit Finds In Absentia Precluded by Incomplete NTA

The Ninth Circuit has determined that a court may not issue an in absentia removal order when the Notice to Appear is missing the time and date of the first removal hearing. “We grant Singh’s petition and hold that noncitizens must receive a Notice to Appear in a single document specifying the time and date of the noncitizen’s removal proceedings, otherwise any in absentia removal order directed at the noncitizen is subject to rescission pursuant to 8 U.S.C. § 1229a(b)(5)(C)(ii).” The court rejected the Board’s contrary determination in Matter of Laparra.

The full text of Singh v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/02/04/20-70050.pdf

On remand from the Supreme Court (which rejected the Ninth Circuit’s analysis about the implications of a Notice to Appear missing the first hearing information as it relates to issuance of an in absentia removal order), the Ninth Circuit again remanded this petition for review to the agency, noting the agency failed to consider the totality of the circumstances, including his eligibility for relief, the advancement of his hearing date by the court system, and the role his attorney played.

An updated decision can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2024/09/17/20-70050.pdf

BIA Declines to Rescind In Absentia Order Premised on Defective NTA

The Board of Immigration Appeals has determined that an in absentia removal order need not be reopened when the respondent was served with a Notice to Appear missing the time and date of the first hearing, but also served with a Notice of Hearing containing that information. The Board acknowledged that its decision is inconsistent with the Fifth Circuit’s recent decision in Rodriguez v. Garland.

The full text of Matter of Laparra can be found here:

https://www.justice.gov/eoir/page/file/1463551/download

Fifth Circuit Upholds In Absentia Order Despite Deficient NTA

The Fifth Circuit has affirmed the denial of a motion to reopen an in absentia removal order where the Notice to Appear was missing the time and date of the first removal hearing because the petitioner provided a deficient mailing address to immigration authorities. The court distinguished its recent decision in Rodriguez, finding that the petitioner in the instant matter forfeited his right to notice of his removal proceeding by providing a deficient mailing address.

The decision in Spagnol-Bastos v. Garland can be found here:

https://www.ca5.uscourts.gov/opinions/pub/20/20-60139-CV0.pdf