Arriving late to an important appointment is common. However, for noncitizens in removal proceedings, arriving late to an immigration court hearing will likely result in an in absentia order of removal, meaning a removal order issued “while not present.” In absentia removal orders carry serious consequences, including blocking eligibility for immigration benefits before U. S. Citizenship and Immigration Services, or USCIS. To avoid these consequences, noncitizens must file a motion to reopen the in absentia removal order. The Immigration and Nationality Act, or INA, offers two statutory provisions to reopen an in absentia order of removal: 1) when the noncitizen did not receive notice of the hearing, and 2) if exceptional circumstances prevented the noncitizen from appearing at the hearing. Section 240(e)(1) of the INA provides a non-exhaustive list of possible exceptional circumstances including “battery or extreme cruelty to the alien or any child or parent of the alien, serious illness of the alien, or serious illness or death of the spouse, child, or parent of the alien, but not including less compelling circumstances beyond the control of the alien.”

Does tardiness qualify as an exceptional circumstance? How should immigration judges, or IJs, analyze exceptional circumstances arguments from noncitizens who claim to have missed the hearing on account of tardiness? In Matter of S-L-H- & L-B-L-, 28 I&N Dec. 318 (BIA 2021), the Board of Immigration Appeals, or BIA, considered these questions and determined that the respondent’s credible tardiness assertions, together with supporting documentation, were sufficient to meet the exceptional circumstances standard. In so doing, the BIA also clarified its prior holding in Matter of S-A-, 21 I&N Dec. 1050 (BIA 1997), a decision that rejected a tardiness claim brought under the more generous pre-Illegal Immigration Reform and Immigrant Responsibility Act of 1996 motion to reopen standard of “reasonable cause.”

In Matter of S-L-H- & L-B-L-, the respondent, an asylum-seeking Guatemalan mother, arrived at her individual hearing 40 minutes late. By the time she appeared in court, the IJ had already ordered her removed. Five days later, she filed a motion to reopen the in absentia removal order, arguing that exceptional circumstances prevented her from being present at the scheduled hearing. Despite providing substantial corroborating documentation of the alleged exceptional circumstances, the immigration judge denied the motion to reopen the in absentia removal order, and the respondent appealed to the BIA.

The BIA concluded that the respondent established exceptional circumstances for the tardy appearance under the totality of the circumstances. The BIA gave three main reasons for sustaining the respondent’s appeal of the in absentia motion to reopen denial: 1) the specific facts underlying the respondent’s tardiness claim, 2) the corroborating documentation, and 3) evidence indicating an intent to appear at the individual hearing.

First, the respondent alleged that she hired a professional driver to take her to the immigration court and, despite her advance planning to arrive on time, they encountered severe weather conditions that caused traffic delays. The BIA noted that “[t]hese severe weather and traffic conditions are distinguishable from the ordinary or foreseeable traffic delays at issue in Matter of S-A-.” Matter of S-L-H- & L-B-L-, 28 I&N Dec. at 324.

Second, the corroborating documentation included detailed and consistent affidavits from both the respondent and the driver, as well as relevant weather and traffic reports. The affidavits detailed being stuck in traffic, the location of the traffic jam and traffic accident, and their attempts to find and take an alternative route in order to arrive at the individual hearing on time. Additionally, weather and traffic reports showed that severe weather caused delays and crashes on multiple thoroughfares, including the highway taken by the driver. By contrast, the respondent in Matter of S-A- offered general statements and uncorroborated assertions that traffic prevented him from arriving on time to his hearing, without describing the location of, or reason for, the traffic. 21 I&N Dec. at 1051.

Third, the respondent proved an intent to appear at the individual hearing because she had attended prior hearings, submitted applications for relief, and filed a motion to reopen promptly following the IJ’s issuance of the in absentia order of removal. The BIA highlighted that other factors may prove an intention to appear, such as “any prior affirmative application for relief” and “other evidence indicating that [the respondent] intended to appear at the hearing.” 28 I&N Dec. at 323.

In the totality of the circumstances, the BIA held that the respondent had established exceptional circumstances that excused her tardy appearance at the hearing and that IJs have the authority to determine whether a late arrival constitutes “exceptional circumstances” under section 240(e)(1) of the Act. The decision provides IJs with “a focused, efficient approach for adjudication” and offers “particular types of factors and corroborative evidence that are relevant to such a motion.” Id. at 325.

In light of this decision, representatives should consider the following non-exhaustive list of practical tips when filing an in absentia motion to reopen based on a tardy arrival:

• Review the Digital Audio Recording, or DAR, for the hearing and assess whether the IJ put Immigration and Customs Enforcement, or ICE, to its burden and whether ICE met its burden of proof. If a respondent fails to appear at a removal hearing, an IJ may enter an in absentia removal order “if the Service establishes by clear, unequivocal, and convincing evidence . . . that the alien is removable.” INA § 240(a)(5)(A). Representatives should carefully examine the record of proceedings to determine whether there are arguments that the IJ failed to put ICE to its burden or whether ICE failed to meet its “high clear, unequivocal, and convincing evidence” burden. While the decision does not discuss ICE’s burden during in absentia proceedings given that the respondent there had already pled to the Notice to Appear, this argument may arise in cases with less advanced procedural postures where the IJ has not taken pleadings.
• Argue that the respondent did not fail to appear. The in absentia provisions apply to a noncitizen who “does not attend” a removal proceeding after written notice. The representative could argue, as the respondent in Matter of S-L-H & L-B-L argued in the alternative, that the IJ issued the in absentia order in error because the respondent did not actually fail to appear. This argument may be particularly strong where the respondent arrived while the IJ was still on the bench or shortly after the hearing concluded. In Matter of S-L-H- & L-B-L, the BIA did not consider this argument, which the IJ failed to address, opting instead to proceed under the exceptional circumstances framework. In footnote 2, the BIA noted that while the Sixth Circuit, where the case arose, has not issued a precedential decision on this issue, it has discussed via dicta the other circuit court decisions doing so. Indeed, some U.S. courts of appeals, and the BIA in unpublished decisions, have concluded that a late arrival is not a failure to appear. Matter of S-L-H- & L-B-L neither addresses nor forecloses this additional potential argument. Furthermore, retired BIA member Paul W. Schmidt dissented in Matter of S-A- and concluded that, “I am not necessarily convinced that every incidence of tardiness must be treated as an ‘absence’ from the hearing.” 21 I&N Dec. at 1052.
• Submit a robust record. While IJs will assess each in absentia motion to reopen on a case-by-case basis, a motion to reopen without any supporting evidence will not suffice. To create a robust record in support of an in absentia motion to reopen, representatives should consider including the following with the motion:
  • Detailed affidavits from the respondent and those with personal knowledge that describe:
    • The circumstances that led to late arrival,
    • The time of departure, the amount of time allocated for travel to the immigration court, and the location of the heavy traffic or delay, as relevant,
    • The respondent’s efforts upon reaching the immigration court to alert court personnel of the late arrival,
    • The time that the respondent arrived at the courtroom,
    • The respondent’s actions upon learning of the in absentia removal order,
    • How the respondent exercised due diligence in seeking to redress the in absentia removal order, and
    • The respondent’s appearance at prior hearings, filing of any applications for relief and desire to pursue those applications for relief, or intent to file applications for relief.
  • Traffic and weather reports;
  • Medical records;
  • Texts messages or smart phone screen shots that confirm the respondent’s arrival time at the courtroom;
  • Proof of respondent’s intent to appear including compliance with ICE check-ins and credible fear or reasonable fear documents; and
  • Any other documentation verifying the cause of the late arrival.
• Cite to the correct legal standards. In Matter of S-L-H- & L-B-L-, the respondent argued that she had demonstrated “reasonable cause” for her late arrival. However, as the BIA noted, this standard was improperly asserted because it applies only to respondents who seek to reopen deportation proceedings conducted under former INA § 242(b) (as discussed in Matter of S-A-). Representatives should be mindful, therefore, of the proper standard for a given respondent and note that the correct, current standard is whether the respondent presented “exceptional circumstances” for the untimely hearing appearance.
• Argue sua sponte reopening in the alternative. Prior to Matter of S-L-H- & L-B-L-, representatives of respondents in late arrival in absentia cases may have pursued reopening based solely on the IJ’s sua sponte authority because they assumed that the totality of the circumstances did not rise to the level of exceptional circumstances. While Matter of S-L-H- & L-B-L- unequivocally provides an exceptional circumstances path for these factual scenarios, representatives should continue to invoke the IJ’s sua sponte authority to reopen proceedings, in the alternative.
• Ensure consistency in the record. As part of the due diligence duty, representatives should review the motion and all supporting documentation to ensure consistency between the motion to reopen and the supporting documentation and accuracy in the contents of the motion to reopen. Not exercising due diligence in this manner will prejudice the case by undermining its veracity, the respondent’s credibility, and the representative’s reputation. Indeed, inaccurate assertions and doubtful credibility prejudiced the respondent in Matter of S-A-.

Eminem has wisely asked, “If you had one shot or one opportunity to seize everything you ever wanted in one moment would you capture it or just let it slip?” Representatives should take a cue from these “Lose Yourself” lyrics and present the best motion to reopen possible because, generally, a respondent may only file one motion to reopen, so there is one shot, one opportunity to do so. To support representatives in accomplishing this goal, CLINIC offers numerous resources on motions to reopen, as well as training and mentorship.