Tooby's California Post-Conviction Relief for Immigrants

(C)

In Absentia Hearing.  A noncitizen respondent may be ordered removed in absentia if the DHS establishes by “clear, unequivocal, and convincing evidence” that the noncitizen is removable and that written notice of the time and place of the proceedings and consequences of failure to appear were provided to the respondent or respondent’s counsel of record.[78]  In many cases, after a respondent fails to appear, the case will be set for another date where the Immigration Judge will issue final decisions in numerous in absentia cases at a single sitting.  A respondent ordered removed in absentia is ineligible for most forms of relief for a period of 10 years.[79]  The respondent can file a motion to reopen proceedings upon showing lack of notice of the hearing or exceptional circumstances for failure to appear.[80]

[78] 8 C.F.R. § § 1003.27(c), (d).

[79] INA § 240(b)(7), 8 U.S.C. § 1229a(b)(7).

[80] 8 C.F.R. § 1003.23(b)(4)(ii).   See, e.g., Borges v. Gonzales, 402 F.3d 398 (3d Cir. March 30, 2005) (180-day time limit for filing a motion to reopen removal proceeding following an order entered in absentia is in nature of statute of limitations, so as to be subject to equitable tolling).