Options After Missing an Immigration Hearing
First, obtain the Immigration Court record immediately. The facts provided do not establish whether the Immigration Judge entered an in absentia removal order, the date of any order, whether the lawyer was counsel of record, or how the hearing notice was served. Those facts determine the available basis for reopening and the deadline.
Request or obtain:
- The Immigration Judge’s order, if any;
- The hearing notice and service records;
- Any Form EOIR-28 or other record showing whether the lawyer was counsel of record;
- The docket history; and
- Copies of notices sent to your address and to counsel.
1. If an in absentia order was entered: consider an immediate motion to reopen and rescind
The current statutory rescission provision is INA § 240(b)(5)(C), 8 U.S.C. § 1229a(b)(5)(C). It provides two materially different grounds:
- Exceptional circumstances: A motion based on exceptional circumstances must be filed within 180 days after the date of the in absentia order. INA § 240(b)(5)(C)(i).
- Lack of notice: A motion alleging that the person did not receive the required notice may be filed at any time. INA § 240(b)(5)(C)(ii).
Because the hearing was about three months ago, an exceptional-circumstances motion may still be within 180 days, but the clock runs from the date of the in absentia order, not necessarily the hearing date. The motion should be prepared and filed promptly rather than waiting for the deadline calculation to become close.
The verified historical authorities reflect the same basic distinction: a 180-day period for exceptional circumstances and an at-any-time route for lack of notice. Matter of Lei, 22 I. & N. Dec. 113, 115–16 (BIA 1998). Lei, however, interpreted former INA § 242B, which has been replaced by INA § 240(b)(5); it should not be treated as resolving current procedural rules or controlling federal-circuit law.
2. Attorney failure to communicate the hearing date may support an exceptional-circumstances motion, but the current authorities must be checked
The central factual claim would be that prior counsel failed to tell you the hearing date despite undertaking responsibility to communicate with you. That should be raised promptly as an ineffective-assistance-based exceptional-circumstances claim if the facts support it.
The materials supplied report that separate opinions in Lei described a different decision, Matter of Grijalva, 21 I. & N. Dec. 472 (BIA 1996), as holding that ineffective assistance can be an “exceptional circumstance” supporting rescission of an in absentia order. Lei, 22 I. & N. Dec. at 128, 137–38 (separate opinions). That 1996 decision is distinct from the 1995 Grijalva decision cited below. Because the 1996 decision itself is not independently included among the verified authorities, this answer cannot state its precise holding or current validity. It should be located and checked, along with current BIA and controlling-circuit authority.
For an ineffective-assistance claim generally, Matter of Lozada identifies a framework requiring:
- Your affidavit describing the agreement with former counsel and what counsel did or did not tell you;
- Notice to former counsel of the allegations and an opportunity to respond; and
- A statement whether you filed a disciplinary complaint, and, if not, why not.
Matter of Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988).
Your declaration should specifically address:
- When and how you retained the lawyer;
- What the lawyer agreed to do concerning hearing notices and case updates;
- Whether the lawyer had your correct phone number, email, and mailing address;
- Whether you received any notice directly from the court;
- Your efforts to contact the lawyer before the hearing;
- When and how you learned of the missed hearing or order; and
- Why you did not know the hearing date.
Preserve the retainer agreement, payment records, texts, emails, call logs, messaging records, and any requests you made for updates.
Lozada explains ineffective assistance in due-process terms: counsel’s conduct must have made the proceeding fundamentally unfair by preventing the person from reasonably presenting the case, and prejudice is required. Id. at 638. The supplied authorities do not establish the current governing circuit’s requirements concerning strict versus substantial Lozada compliance, prejudice, diligence, or equitable tolling. Those issues require jurisdiction-specific current research.
3. A statutory lack-of-notice theory is separate and should be evaluated carefully
A lack-of-notice claim is distinct from an ineffective-assistance/exceptional-circumstances claim. Under the current statute, the lack-of-notice route is not subject to the 180-day limit. INA § 240(b)(5)(C)(ii).
But whether this route applies when the court served counsel of record and counsel failed to tell the client is authority-dependent. In Lei, the majority mentioned the former regulation under which notice to counsel constituted notice to the noncitizen, but it did not decide whether counsel’s receipt coupled with a failure to communicate could support rescission under the separate lack-of-notice provision. Lei, 22 I. & N. Dec. at 114, 117 n.4. The more favorable discussion of actual nonreceipt by the person appears in separate opinions, not the majority holding. Id. at 123–25, 136–39.
Accordingly, the motion should not assume that service on counsel either defeats or establishes a current lack-of-notice claim. Current BIA and controlling-circuit law should be checked before relying on that theory. If supported by that law and the service record, counsel may consider pleading it as a separate statutory basis rather than treating it as interchangeable with ineffective assistance.
4. Submit supporting evidence with the motion
Submit available evidence with the motion rather than withholding it for a later appeal. In the former statutory setting, the Board stated that evidence supporting a rescission motion should be presented to the Immigration Judge with the motion. Matter of Grijalva, 21 I. & N. Dec. 27, 36–37 (BIA 1995).
Useful documents include:
- The in absentia order, if one exists;
- The hearing notice and proof of service;
- Proof of counsel-of-record status;
- Your sworn declaration;
- The retainer agreement, receipts, and communications with counsel;
- Phone, text, email, and messaging records;
- Notice to former counsel and proof of delivery;
- Any response from former counsel;
- A disciplinary complaint or an explanation for not filing one; and
- Evidence bearing on any defense to removal or eligibility for relief.
The 1995 Grijalva decision involved the former certified-mail regime and did not involve attorney noncommunication. It should not be relied on for current service standards or for the proposition that attorney error constitutes exceptional circumstances. Id. at 32–37.
Immediate next steps
- Get the court record immediately and determine whether an in absentia order was entered.
- Confirm the order date. Calculate 180 days from that date, not merely from the hearing date.
- Consult qualified immigration counsel immediately to prepare a possible motion before the 180-day period expires.
- Prepare a detailed declaration and preserve all communications with former counsel.
- Notify former counsel of the ineffective-assistance allegations and document delivery and any response, consistent with Lozada.
- Research current BIA and controlling-circuit authority on attorney noncommunication as exceptional circumstances, the current lack-of-notice rule when counsel was served, the applicable filing forum and regulation, and the degree of Lozada compliance required.