Written by: Tamaryn da Ponte, Esq., Immigration Help USA
About the author
For decades, in absentia removal orders have been among the most consequential procedural tools in immigration law. When a noncitizen fails to appear for a scheduled immigration hearing, an Immigration Judge may order removal in the person’s absence if the government establishes proper notice and removability.¹
The stakes are enormous because an in absentia order can result in immediate removal consequences and significantly limit future immigration options. The Board of Immigration Appeals, also known as the BIA, has repeatedly confronted disputes involving notice, due process, motions to reopen, and the standards governing rescission of these orders.
Against this backdrop, Matter of DIJI, 30 I&N Dec. 1 (BIA 2026), emerges as another significant precedent in the ongoing debate over notice and reopening standards.²
Understanding In Absentia Removal Orders
Section 240(b)(5) of the Immigration and Nationality Act authorizes Immigration Judges to enter removal orders when a respondent fails to appear for a scheduled hearing after receiving the required notice.³
Historically, litigation concerning in absentia orders has focused on notice, exceptional circumstances, motions to reopen, and the validity of hearing notices.
What Matter of DIJI Changed for Noncitizens
Before Matter of DIJI, immigrants could argue: “I never received the Notice to Appear, so I cannot be deported for missing court.”
However, the main takeaway following the Matter of DIJI ruling is that if the Department of Homeland Security mailed the Notice to Appear to the last known address the person gave the government, that is generally sufficient, even if the person never actually received it.⁴
This means that older removal orders may become harder to undo.
The Significance of Matter of DIJI
Matter of DIJI reflects the BIA’s continued effort to define the limits of challenges to in absentia removal orders and clarify evidentiary burdens in motions to reopen.
The decision underscores the importance of statutory notice requirements and the evidentiary support required when seeking rescission.⁵
DIJI narrows one of the strongest historical reopening arguments for immigrants. Because of this ruling, we may see fewer motions to reopen succeed, more respondents remain subject to final removal orders, and some individuals may lose access to future immigration benefits because an in absentia order remains in place.
Key Takeaways for Practitioners
Notice remains the central question. Practitioners should carefully assess service records, address history, mailing evidence, and proof of nonreceipt.
Evidentiary support matters. Motions supported by declarations, postal records, and proof of diligence are generally stronger than conclusory assertions.
The burden of reopening remains substantial, requiring careful attention to timeliness, credibility, and corroboration.⁶
Evidence submitted on behalf of the respondent is crucial. The Board stated that an attorney’s argument is not evidence. This means that future motions will require strong evidentiary proof, such as:
- Sworn affidavits;
- Address records;
- Returned mail;
- Evidence of diligence; and
- Corroborating witnesses.⁷
Conclusión
Matter of DIJI is a noteworthy addition to the law governing in absentia removal orders. The decision highlights the critical role of notice, documentary evidence, and procedural compliance in challenges to removal orders entered in a respondent’s absence.
Most importantly, immigrants need to ensure that they always provide the government with their most up-to-date address and contact information. Failure to do so could result in an in absentia order of removal.
Referencias
- Immigration and Nationality Act § 240(b)(5), 8 U.S.C. § 1229a(b)(5).
- Matter of DIJI, 30 I&N Dec. 1, Board of Immigration Appeals, 2026.
- INA § 240(b)(5), 8 U.S.C. § 1229a(b)(5).
- Matter of DIJI, 30 I&N Dec. 1, BIA 2026.
- Id.
- Id.
- Id.
Este artículo es únicamente para fines informativos y no constituye asesoramiento legal.