Missing an immigration court hearing can have serious consequences. A person who fails to appear may be ordered removed from the United States without being present in court. This is known as an in absentia removal order.
At Guerra Sáenz, PL, our Fort Lauderdale immigration lawyers regularly assist individuals and families facing complicated immigration matters, including removal proceedings and existing removal orders. One question people often ask after discovering that they were ordered removed in absentia is whether there is a “waiver” that can fix the problem.
There is no single waiver or form that automatically makes a missed immigration court hearing disappear. However, depending on the circumstances, there may be legal options to challenge the order, reopen the proceedings, or address some of the immigration consequences that follow.
What Happens If You Miss Immigration Court?
Under Section 240(b)(5)(A) of the Immigration and Nationality Act, an immigration judge may order someone removed in absentia when the government establishes that the required written notice was provided and that the individual is removable.
Being removed in absentia can create consequences beyond the removal order itself.
For example, INA § 240(b)(7) provides for a 10 year bar on certain forms of immigration relief when the statutory requirements for that bar are satisfied. These can include cancellation of removal, voluntary departure, adjustment of status, registry, and change of status.
INA § 212(a)(6)(B) also provides a five year inadmissibility period for certain individuals who fail to attend removal proceedings without reasonable cause and subsequently seek admission during the applicable period.
In addition, INA § 212(a)(9)(A) can create separate inadmissibility consequences for certain people who have previously been ordered removed and depart the United States.
Because multiple provisions of immigration law may apply simultaneously, anyone dealing with an in absentia order should consider speaking with a Fort Lauderdale immigration lawyer before leaving the United States or filing a new immigration application.
Path 1: Asking the Immigration Court to Reopen the Case
One of the most important potential remedies is a motion to reopen and rescind an in absentia removal order.
Whether this option is available depends heavily on why the person failed to appear.
You Did Not Receive Proper Notice
A person may seek rescission of an in absentia order based on failure to receive notice of the hearing. Unlike motions based on exceptional circumstances, a motion based on lack of notice is not subject to the same 180 day filing period.
Notice issues can arise in many ways. A hearing notice may have been mailed to an outdated address, for example, or there may be other questions concerning whether legally sufficient notice was provided.
Supreme Court decisions have also shaped this area of immigration law. In Niz-Chavez v. Garland, 593 U.S. 155 (2021), the Supreme Court addressed the statutory requirements applicable to a Notice to Appear. More recently, in Campos-Chaves v. Garland, 602 U.S. 447 (2024), the Court addressed challenges to in absentia orders where a noncitizen subsequently received a notice providing the time and place of the hearing.
These cases demonstrate why notice challenges should be evaluated according to the person’s complete immigration court record rather than based solely on what appeared on the initial Notice to Appear.
Exceptional Circumstances Prevented You From Attending
An in absentia order may also be challenged when exceptional circumstances prevented the person from appearing. Generally, a motion on this basis must be filed within 180 days of the removal order.
Federal immigration law defines exceptional circumstances as circumstances beyond the person’s control and provides examples such as serious illness of the individual or serious illness or death involving certain close family members. Battery or extreme cruelty may also qualify under the statutory definition.
Supporting evidence can be extremely important. Depending on the circumstances, medical records, death certificates, police reports, affidavits, and other documentation may help establish what prevented the individual from appearing.
You Were in Custody
Federal law also provides a potential basis for rescission when a person failed to appear because they were in federal or state custody and the failure to appear occurred through no fault of their own.
An experienced Fort Lauderdale immigration lawyer can review the immigration court file, hearing history, notices, and supporting evidence to determine which legal basis may apply.
What If More Than 180 Days Have Passed?
The passage of more than 180 days does not necessarily mean that every possible avenue is closed.
Depending on the circumstances, equitable tolling may become an issue. The U.S. Court of Appeals for the Eleventh Circuit, whose jurisdiction includes Florida, has recognized that statutory motion to reopen deadlines may be subject to equitable tolling. See Avila-Santoyo v. U.S. Attorney General, 713 F.3d 1357 (11th Cir. 2013) (en banc).
Equitable tolling is highly fact dependent. Issues such as ineffective assistance by a prior attorney or misconduct by an unauthorized immigration consultant may be relevant, but an applicant may also need to demonstrate appropriate diligence in pursuing the case.
This is one reason individuals who discover that they were removed in absentia should address the problem promptly rather than allowing additional time to pass.
Path 2: Addressing the Five Year Bar and “Reasonable Cause”
For someone who has already departed the United States, INA § 212(a)(6)(B) may become particularly important.
The provision concerns individuals who failed to attend removal proceedings without reasonable cause and seek admission within five years of their subsequent departure or removal.
Whether reasonable cause existed is therefore an important legal question. Circumstances genuinely outside an individual’s control may support an argument that the statutory ground does not apply.
There is no general waiver specifically provided for INA § 212(a)(6)(B). As a result, determining whether the ground applies in the first place can be critical.
Path 3: Permission to Reapply for Admission
A separate issue can arise because of the prior removal order itself.
Certain individuals who have been ordered removed may need permission to reapply for admission before they can legally return to the United States during the applicable inadmissibility period. This is generally requested through Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal.
An I-212 application is discretionary. The circumstances surrounding the immigration history, removal proceedings, family relationships, rehabilitation, hardship, and other favorable and unfavorable considerations may be relevant.
Importantly, an I-212 does not simply erase every immigration consequence arising from a missed hearing. A person’s entire immigration history should be evaluated to determine which grounds of inadmissibility apply and which remedies may be available.
What Should You Avoid Doing After Being Removed in Absentia?
First, do not assume that nothing happened simply because you never received a letter informing you of the removal order. Immigration court records should be checked to determine the actual status of the proceedings.
Second, do not leave the United States without first understanding the possible immigration consequences. Departure can trigger or affect separate grounds of inadmissibility.
Third, do not unnecessarily delay seeking legal advice. Deadlines can be extremely important in immigration court proceedings, particularly when a motion is based on exceptional circumstances.
Finally, filing a new application with U.S. Citizenship and Immigration Services does not automatically eliminate an existing immigration court removal order. The prior proceedings need to be considered before deciding on an appropriate immigration strategy.
Why Work With Guerra Sáenz, PL?
Cases involving in absentia removal orders can require an analysis of federal statutes, immigration regulations, court notices, prior filings, and decisions from federal courts and the Board of Immigration Appeals. Guerra Sáenz, PL represents individuals and families facing complex U.S. immigration matters and can evaluate the circumstances surrounding a missed immigration court hearing.
Attorney Luis A. Guerra is a Florida Board Certified Specialist in Immigration & Nationality Law. Board certification is an important professional distinction. The Florida Bar describes board certification as recognizing attorneys who have demonstrated special knowledge, skills, and proficiency in a particular area of law and professionalism and ethics in practice.
For someone facing an existing removal order, working with an attorney who has substantial experience and recognized qualifications in immigration and nationality law can be especially valuable. The attorneys at Guerra Sáenz, PL can review the client’s immigration history, determine why the person was removed in absentia, assess available remedies, and develop a strategy based on the specific facts of the case.
Contact a Fort Lauderdale Immigration Lawyer About an In Absentia Order
Being removed in absentia is serious, but an immigration court order does not necessarily mean that there are no legal options remaining. The appropriate approach depends on several factors, including whether proper notice was provided, why the hearing was missed, how much time has passed, whether the person has departed the United States, and what other immigration issues may be involved.
If you or a family member has been removed in absentia or recently discovered an outstanding immigration court removal order, contact Guerra Sáenz, PL. A Fort Lauderdale immigration lawyer at the firm can review your immigration history, explain the potential options available under federal immigration law, and help determine the appropriate next steps.
Guerra Sáenz, PL provides immigration law services to individuals and families in Fort Lauderdale and throughout South Florida. Contact the firm if you need experienced legal assistance with removal proceedings, motions to reopen, family immigration, employment immigration, or other immigration matters.
This article is provided for general informational purposes only and does not constitute legal advice.