If you are a Guatemalan in the United States and an immigration judge ordered you removed on a day you were not in court, you have an in absentia removal order. This page sets out what the statute and the court’s rules say about that order: why it was entered, the only two grounds for undoing it, the deadlines for each, what filing does while you wait, the fee, the 10-year bar and the civil penalties that apply after a final order. To check whether your case shows a decision, start with our guide to checking your immigration court case with EOIR; this page does not repeat its lookup steps.
Quick summary: An in absentia order can be undone only by a motion to reopen, filed with the immigration judge. There is no appeal to the Board of Immigration Appeals. Two grounds: exceptional circumstances, filed within 180 days after the date of the order; or no notice of the hearing, or federal or state custody, with the failure to appear through no fault of yours, filed at any time. Filing stays your removal until the judge decides the motion. You get one such motion. The fee is $0 for the no-notice or custody ground; other motions to reopen before a judge cost $1,095 (EOIR, checked October 21, 2026). If you had oral notice of the hearing and its consequences, the order can also bar some relief for 10 years. Since October 14, 2026, a final rule governs the civil penalties DHS assesses on people who willfully fail to depart after a final removal order.
Why the order was entered
Under 8 U.S.C. 1229a(b)(5)(A), a person who does not attend a removal hearing after the required written notice has been provided to them or to their counsel of record shall be ordered removed in absentia if the government establishes, by clear, unequivocal and convincing evidence, that the written notice was so provided and that the person is removable. The written notice is sufficient if it was provided at the most recent address the person provided under 8 U.S.C. 1229(a)(1)(F).
Two rules make the address decisive:
- No address, no notice required. Under 1229a(b)(5)(B), no written notice is required if the person failed to provide the address required under 8 U.S.C. 1229(a)(1)(F). The court’s regulation repeats it for a change in the time or place of a hearing (8 CFR 1003.23(b)(4)(ii)).
- Late counts too. EOIR’s Practice Manual, chapter 3.16, says any delay in appearing at a master calendar or individual calendar hearing may result in the respondent being ordered removed in absentia.
If you moved and did not tell the court, our page on USCIS (AR-11) and immigration court (EOIR-33) change of address explains the two separate notices.
No appeal: the only route is a motion to reopen
EOIR’s Practice Manual says: “There is no appeal from a removal order issued in absentia”. It adds that the Board of Immigration Appeals does not have jurisdiction to consider direct appeals of in absentia orders in removal proceedings, and that in removal proceedings an in absentia order may be rescinded only upon the granting of a motion to reopen.
The statute lists the two grounds. Each has its own deadline:
| Why you were not there | Deadline to file the motion to reopen | Source |
|---|---|---|
| Exceptional circumstances (defined below) | Within 180 days after the date of the order of removal | 8 U.S.C. 1229a(b)(5)(C)(i); 8 CFR 1003.23(b)(4)(ii) |
| You did not receive notice in accordance with 8 U.S.C. 1229(a)(1) or (2) | At any time | 8 U.S.C. 1229a(b)(5)(C)(ii); 8 CFR 1003.23(b)(4)(ii) |
| You were in federal or state custody and the failure to appear was through no fault of your own | At any time | 8 U.S.C. 1229a(b)(5)(C)(ii); 8 CFR 1003.23(b)(4)(ii) |
In each case the motion must demonstrate the ground: the statute says the order may be rescinded only if the person “demonstrates” the exceptional circumstances, the lack of notice or the custody. The general 90-day deadline for motions to reopen does not govern these motions: 8 U.S.C. 1229a(c)(7)(C)(iii) says a motion to reopen an order entered under (b)(5) is subject to the deadline in (b)(5)(C).
What counts as exceptional circumstances. 8 U.S.C. 1229a(e)(1) defines the term as exceptional circumstances beyond your control, such as battery or extreme cruelty to you or to your child or parent, your serious illness, or the serious illness or death of your spouse, child or parent, “but not including less compelling circumstances”.
These rules are for removal proceedings. EOIR’s Practice Manual says in absentia orders in older deportation and exclusion proceedings are governed by different standards (8 CFR 1003.23(b)(4)(iii)).
What filing the motion does
- Removal is stayed. The filing of the motion under either ground “shall stay the removal of the alien pending disposition of the motion by the immigration judge” (8 U.S.C. 1229a(b)(5)(C)). EOIR’s Practice Manual calls it an automatic stay. 8 CFR 1003.23(b)(1)(v) confirms that in absentia orders are the exception to the rule that a motion does not stay a decision.
- Only one motion. 8 CFR 1003.23(b)(4)(ii): “An alien may file only one motion pursuant to this paragraph (b)(4)(ii)”.
- The judge decides. The decision to grant or deny a motion to reopen is within the immigration judge’s discretion (8 CFR 1003.23(b)(1)(iv)). Responses to the motion are due within 10 days after the court receives it, unless the judge specifies otherwise (Practice Manual 4.9).
- Leaving the US. The general motions rule, 8 CFR 1003.23(b)(1), says a motion to reopen shall not be made by or on behalf of a person after his or her departure from the United States, and that a departure after the motion is filed constitutes a withdrawal of the motion. Ask a lawyer how this applies to your case before you travel.
How the motion is filed
From 8 CFR 1003.23(b)(1) and EOIR’s Practice Manual, chapter 4.9:
- Where: with the immigration court that has administrative control over the Record of Proceeding.
- Cover page: the Practice Manual says to label it MOTION TO REOPEN AN IN ABSENTIA ORDER.
- Language: the motion and anything filed with it must be in English or come with a certified English translation.
- Service: if you are the one filing, serve the motion on the ICE Office of the Principal Legal Advisor for the field location where the case was completed.
- Representation: if a practitioner represents you or helped prepare the document, include Form EOIR-28 or Form EOIR-61.
- Address: the Practice Manual says to file a change of address form (EOIR-33/IC) with the motion, so the court has your current address.
- Fee: proof of payment or a fee waiver request where a fee applies (next section).
The fee
| Motion | Fee | Source |
|---|---|---|
| Motion to reopen where INA 240(b)(5)(C)(ii) is established (no notice, or federal or state custody) | $0 | EOIR fees page; 8 CFR 1003.24(b)(2)(iii) |
| Motion to reopen or reconsider before an immigration judge, general | $1,095 | EOIR fees page; FR 2026-17146 |
| Motion to reopen based exclusively on an application for relief that does not require a fee | $950 | EOIR fees page; FR 2026-17146 |
The EOIR page, updated October 5, 2026 and checked October 21, 2026, says: “The filing fee does not apply to motions to reopen where INA § 240(b)(5)(C)(ii) or former INA § 242B(c)(3)(B) (prior to April 1, 1997) are established”. Since February 23, 2026 EOIR no longer accepts checks or money orders; fees are paid through the EOIR Payment Portal. Under 8 CFR 1003.24(d), the immigration judge has discretion to waive a motion fee upon a showing that you are unable to pay, except as provided in 8 CFR 1103.7(b)(4)(iii) and 1208.3(a), with an affidavit or an unsworn declaration under 28 U.S.C. 1746. Every court fee, with the FY2027 inflation adjustment, is on our page on immigration court fees (EOIR).
The 10-year bar on relief
8 U.S.C. 1229a(b)(7) adds a penalty, but only when all of its conditions are met:
| Condition in 1229a(b)(7) | What it means |
|---|---|
| A final order of removal was entered in absentia under 1229a | The order in this page |
| At the time of the notice described in 8 U.S.C. 1229(a)(1) or (2), you were provided oral notice | Spoken notice, not only a mailed paper |
| The oral notice was in your native language or another language you understand | Language condition |
| It covered the time and place of the proceedings and the consequences under 1229a(b)(7) of failing, other than because of exceptional circumstances (as defined in 1229a(e)(1)), to attend | In the statute, the exceptional-circumstances words are part of what the oral notice describes |
When it applies, the person is not eligible for relief under 8 U.S.C. 1229b (cancellation of removal), 1229c (voluntary departure), 1255, 1258 or 1259 for 10 years after the date of entry of the final order of removal. For those two forms of relief, see our pages on cancellation of removal after 10 years and voluntary departure.
Civil penalties after a final order (rule effective October 14, 2026)
DHS and EOIR published a joint final rule in the Federal Register on October 14, 2026 (document 2026-21024, 91 FR 65390), effective that day. It finalizes the June 27, 2025 interim rule that streamlined civil penalties for people who, among other categories, “willfully fail or refuse to depart after a final removal order”. The preamble says that for aliens ordered removed who remain in the United States, “DHS may impose a penalty of up to $998 for each day the alien willfully fails to comply with the order”.
| Point | What the rule says |
|---|---|
| Who decides | An appeal process that takes place solely before DHS (8 CFR part 281) |
| Deadline to appeal a penalty | 15 business days from service of the initial decision and order (8 CFR 281.1(e)(1)) |
| Change in the final rule | A person who appeals late and says it was because the officer’s decision arrived late by mail must include a written explanation and any available documentary evidence of the mail delay. If ICE determines the late filing was due to mail delay beyond the person’s control, it accepts the appeal as timely, case by case (new 8 CFR 281.1(e)(2)) |
| Effective date | October 14, 2026 |
The penalty for failing to leave after a grant of voluntary departure is a different provision, explained on our voluntary departure page. Other 2026 measures are in our tracker of US government actions affecting Guatemalans.
Court review is narrow
8 U.S.C. 1229a(b)(5)(D) says a petition for review under 8 U.S.C. 1252 of an in absentia order is confined (except in cases described in 8 U.S.C. 1252(b)(5)) to the validity of the notice, the reasons for not attending, and whether the person is removable.
Get qualified help
Whether your facts amount to exceptional circumstances, or whether the notice was valid, is a legal judgment this page cannot make. Talk to a licensed immigration attorney or an accredited representative; our guide to avoiding notario fraud and finding accredited help shows how to check who you hire. If you need an interpreter in court, see our page on Mayan-language interpreters in US immigration court.
Related pages
- How to check your immigration court case (EOIR)
- Master calendar hearing: what happens at your first hearing
- Immigration court fees (EOIR), FY2027
- What happens when a deportation flight lands
Sources
- 8 U.S.C. 1229a (Removal proceedings), Legal Information Institute (Cornell) copy: https://www.law.cornell.edu/uscode/text/8/1229a
- 8 CFR 1003.23 and 1003.24, eCFR (current): https://www.ecfr.gov/current/title-8/section-1003.23 and https://www.ecfr.gov/current/title-8/section-1003.24
- EOIR Immigration Court Practice Manual, chapters 3.16 (In Absentia Hearing) and 4.9 (Motions to Reopen In Absentia Orders): https://www.justice.gov/eoir/policy-manual-eoir/part-II/icpm/chapter-3-16 and https://www.justice.gov/eoir/policy-manual-eoir/part-II/icpm/chapter-4-9
- EOIR, Types of Appeals, Motions, and Required Fees (updated October 5, 2026): https://www.justice.gov/eoir/types-appeals-motions-and-required-fees
- Federal Register 2026-21024, Imposition and Collection of Civil Penalties for Certain Immigration-Related Violations (October 14, 2026): https://www.federalregister.gov/documents/2026/10/14/2026-21024/imposition-and-collection-of-civil-penalties-for-certain-immigration-related-violations
- Federal Register 2026-17146, Inflation Adjustment for EOIR OBBBA Fees, Fiscal Year 2027: https://www.federalregister.gov/documents/2026/08/21/2026-17146/inflation-adjustment-for-eoir-obbba-fees-fiscal-year-2027
All sources checked October 21, 2026. General information, not legal advice.
Frequently Asked Questions
What is an in absentia removal order?
It is a removal (deportation) order an immigration judge enters when the person does not attend a hearing. Under 8 U.S.C. 1229a(b)(5)(A), a person who does not attend after the required written notice was provided to them or their counsel of record shall be ordered removed in absentia if the government establishes by clear, unequivocal and convincing evidence that the notice was provided and that the person is removable. Notice sent to the most recent address the person provided counts as sufficient.
Can I appeal an in absentia order?
No. EOIR’s Immigration Court Practice Manual says there is no appeal from a removal order issued in absentia, and that the Board of Immigration Appeals does not have jurisdiction to consider direct appeals of in absentia orders in removal proceedings. The route the statute gives is a motion to reopen filed with the immigration judge.
How long do I have to reopen an in absentia order?
It depends on the reason. If you did not appear because of exceptional circumstances, the motion to reopen must be filed within 180 days after the date of the order. If you did not receive the required notice, or you were in federal or state custody and the failure to appear was through no fault of your own, the motion can be filed at any time (8 U.S.C. 1229a(b)(5)(C)).
What counts as exceptional circumstances?
8 U.S.C. 1229a(e)(1) defines them as exceptional circumstances beyond your control, such as battery or extreme cruelty to you or to your child or parent, your serious illness, or the serious illness or death of your spouse, child or parent, but not including less compelling circumstances.
Can I be deported while my motion to reopen is pending?
The statute says the filing of a motion to reopen under 1229a(b)(5)(C)(i) or (ii) shall stay the removal of the alien pending disposition of the motion by the immigration judge. EOIR’s Practice Manual calls this an automatic stay. The stay lasts until the judge decides the motion.
How much does it cost to reopen an in absentia order?
EOIR’s fees page (updated October 5, 2026) says the filing fee does not apply to motions to reopen where INA 240(b)(5)(C)(ii), the no-notice or custody ground, is established. For other motions to reopen before an immigration judge the page lists $1,095. An immigration judge can waive a motion fee if you show you are unable to pay, except as provided in 8 CFR 1103.7(b)(4)(iii) and 1208.3(a) (8 CFR 1003.24(d)).
How many times can I file?
Once. 8 CFR 1003.23(b)(4)(ii) says an alien may file only one motion under that paragraph, and EOIR’s Practice Manual repeats that only one motion to reopen to rescind an in absentia order is permitted.
Does an in absentia order bar me from other relief?
It can, under 8 U.S.C. 1229a(b)(7), but only if you had been given oral notice, in your native language or another language you understand, of the time and place of the hearing and of the consequences of failing, other than because of exceptional circumstances, to attend. If that oral notice was given and the final order was entered in absentia, you are not eligible for relief under sections 1229b, 1229c, 1255, 1258 or 1259 for 10 years after the final order was entered.
