Motions to Reopen Based on Exceptional Circumstances
A Practitioner’s Guide to Rescinding In Absentia Removal Orders
Date of Information: 12/05/2025
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Overview
A motion to reopen based on exceptional circumstances is a narrow statutory mechanism for rescinding an in absentia removal order. The respondent bears a heavy burden: they must show that an extraordinary, unforeseeable event beyond their control directly prevented their appearance at the hearing. See INA § 240(b)(5)(C)(i), 8 U.S.C. § 1229a(b)(5)(C)(i).
Courts construe this exception strictly. The standard is demanding, the evidentiary requirements are high, and the statutory filing deadline is enforced rigorously.
Statutory Mechanism for Rescission
A respondent may rescind an in absentia order only if:
They file a motion to reopen within 180 days of the order,
They demonstrate qualifying exceptional circumstances, and
They show the event caused the failure to appear.
Where the statute’s conditions are not satisfied, this rescission mechanism is unavailable.
Elements You Must Prove
(1) Existence of a Qualifying Exceptional Circumstance
See INA § 240(e)(1). Case law further clarifies that this is a high bar. See Da Silva v. Barr, 827 F. Appx 52, 53 (2d Cir. 2020) (no exceptional circumstances where explanations lacked detail and failed to show impossibility); Jimenez-Castro v. Sessions, 750 F. Appx 406, 408 (6th Cir. 2018); Hernandez-Galand v. Garland, 996 F.3d 1030, 1036–38 (9th Cir. 2021) (emphasizing high bar and need for causation); Hong Yu v. Holder, 538 F. Appx 43, 45 (2d Cir. 2013) (failure to return from Canada in time for hearing not exceptional).
(2) Causation
The event must have directly prevented attendance, not merely made it difficult or inconvenient. See Hernandez-Galand, 996 F.3d at 1036–37; In Re J-P-, 22 I. & N. Dec. 33 (BIA 1998) (alien failed to establish that a serious headache he suffered on the day of his deportation hearing amounted to exceptional circumstances to excuse his failure to appear).
(3) Diligence
Courts expect evidence of prompt action after the event. See Guerrero-Lasprilla v. Barr, 589 U.S. 221, 140 S. Ct. 1062, 206 L. Ed. 2d 271 (2020).
Corroborating Evidence
Assertions are insufficient without documentation. See Matter of S-Y-G-, 24 I. & N. Dec. 247, 253 (BIA 2007).
The Filing Deadline for Exceptional Circumstances Motions
Strict 180-Day Deadline
The statute requires filing within 180 days of the in absentia removal order. See INA § 240(b)(5)(C)(i), 8 U.S.C. § 1229a(b)(5)(C)(i). Courts treat this deadline as mandatory and enforce it rigidly. See Hernandez-Galand v. Garland, 996 F.3d 1030, 1034 (9th Cir. 2021). The period runs from the date of the order, not the date the respondent learns of the order.
No Statutory Tolling
There is no tolling provision in § 240(b)(5)(C)(i). Courts routinely decline to toll this deadline absent exceptional circumstances and clear circuit precedent.
Equitable Tolling (Circuit-Dependent)
Some circuits allow equitable tolling of the general 90-day motion-to-reopen deadline under INA § 240(c)(7).
See:
Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1068–70 (2020) (holding that the Fifth Circuit had authority to consider equitable tolling).
Lugo-Resendez v. Lynch, 831 F.3d 337, 343–44 (5th Cir. 2016).
Avagyan v. Holder, 646 F.3d 672, 679–80 (9th Cir. 2011) (applying quitable tolling to ineffective assistance of counsel).
But whether equitable tolling applies to the specific 180-day in absentia deadline varies by circuit, and many treat the 180-day period as stricter than the general deadline.
Practical Guidance
Treat the 180-day deadline as effectively non-negotiable.
If the deadline is missed, evaluate:
Lack of notice (may be filed at any time) under INA § 240(b)(5)(C)(ii);
Ineffective assistance under Matter of Lozada, 19 I&N Dec. 637 (BIA 1988);
Equitable tolling if your circuit permits;
Joint motions;
Sua sponte reopening under 8 C.F.R. § 1003.23(b)(1).
What Counts as “Exceptional Circumstances”?
The INA defines “exceptional circumstances” as circumstances beyond the control of the respondent, including:
Serious illness of the respondent,
Serious illness or death of the respondent’s spouse, child, or parent,
Or other comparable events of similar gravity.
See INA § 240(e)(1), 8 U.S.C. § 1229a(e)(1).
What does NOT qualify?
Courts consistently reject claims based on:
Transportation or logistical problems;
Employment conflicts;
Childcare issues;
Misunderstanding or misremembering a hearing date;
Personal stress or instability.
See, e.g.:
Da Silva v. Barr, 827 F. App’x 52, 53 (2d Cir. 2020) (no exceptional circumstances where explanations lacked detail and failed to show impossibility).
Jimenez-Castro v. Sessions, 750 F. App’x 406, 408 (6th Cir. 2018).
Hernandez-Galand v. Garland, 996 F.3d 1030, 1036–38 (9th Cir. 2021) (emphasizing high bar and need for causation).
Hong Yu v. Holder, 538 F. App’x 43, 45 (2d Cir. 2013) (failure to return from Canada in time for hearing not exceptional).
What has qualified?
Serious illness on the day of the hearing, supported by contemporaneous medical documentation:
Ferrari v. Gonzales, 150 F. App’x 594, 595–96 (9th Cir. 2005).Interpreter failure or lack of legally required interpretation services:
Nazarova v. INS, 171 F.3d 478, 484–85 (7th Cir. 1999).Ineffective assistance of counsel, where properly raised under Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988):
Reyes v. Ashcroft, 358 F.3d 592, 596–98 (9th Cir. 2004).
In short, exceptional-circumstances rescission applies only in situations where attendance was objectively impossible, not merely difficult.
Evidence Checklist
Required
Detailed sworn declaration;
Medical or emergency documentation;
Death certificates, hospital records;
Police or emergency-response reports;
Detailed chronological timeline;
Proof of updated address and contact information.
Recommended
Witness affidavits;
Travel records;
Phone logs or contemporaneous messaging showing efforts to attend or notify the court.
Common Pitfalls Leading to Denial
Filing after the 180-day deadline;
Weak or inconsistent documentation;
Insufficient causal link;
Confusing exceptional circumstances with lack of notice;
Presenting ineffective assistance without complying with Lozada;
Failing to explain timeline gaps.
See:
Practitioner Strategy Notes
Treat these cases as litigation files, not administrative filings.
Timeline precision matters; judges scrutinize chronology.
Anticipate DHS objections and address them preemptively.
Consider asserting multiple bases for reopening when factually supported.
Over-document every claim; credibility is everything in these motions.
Facing an in absentia removal order?
Exceptional-circumstances reopening is one of the strictest and most technical pathways in immigration law. If a genuine emergency prevented a hearing appearance—or if you are unsure which reopening theory applies—schedule a consultation.
Frequently Asked Questions About Motions to Reopen Based on Exceptional Circumstances
1. What is a motion to reopen based on exceptional circumstances?
It is a statutory mechanism that allows a respondent to rescind an in absentia removal order when they can prove an extraordinary, unforeseeable event—beyond their control—directly prevented their appearance at the hearing. See INA § 240(b)(5)(C)(i).
2. What qualifies as “exceptional circumstances”?
Under INA § 240(e)(1), exceptional circumstances include events such as serious illness, serious illness or death of a spouse, child, or parent, or other crises of similar gravity. Courts apply this definition narrowly. Cases such as Da Silva v. Barr, Jimenez-Castro v. Sessions, Hernandez-Galand v. Garland, and Hong Yu v. Holder show how strictly courts construe the standard.
3. What does NOT qualify as an exceptional circumstance?
Courts reject claims based on:
Transportation delays
Work conflicts
Childcare problems
Misremembered hearing dates
Personal stress or instability
These are routine life difficulties—not extraordinary events under the INA. See the case discussions on page 4.
4. What is the filing deadline for an exceptional-circumstances motion?
A respondent must file within 180 days of the in absentia order. The deadline runs from the date of the order, not when the respondent learned of it. Courts treat this as a mandatory statutory requirement. See INA § 240(b)(5)(C)(i) and Hernandez-Galand v. Garland, 996 F.3d 1030, 1034 (9th Cir. 2021).
5. Can the 180-day deadline be extended?
There is no statutory tolling for exceptional-circumstances motions. Some circuits allow equitable tolling for the general 90-day reopening deadline under INA § 240(c)(7), but whether that doctrine applies to the 180-day in absentia deadline is circuit-specific. Many courts enforce the 180-day limit more strictly. Cases referenced on page 3 illustrate this differential treatment.
6. What evidence do I need to prove exceptional circumstances?
Strong, specific, contemporaneous documentation is essential. Depending on the claim, this may include:
Medical records or ER documentation
Death certificates or hospitalization records
Police or emergency reports
Sworn declarations
Precise timelines and corroborating evidence
Assertions alone are not enough. See Matter of S-Y-G-, 24 I. & N. Dec. 247, 253 (BIA 2007).
7. How do courts evaluate whether the event actually caused the failure to appear?
Courts require a direct causal link: the event must have made attendance impossible, not merely inconvenient. Hernandez-Galand and In re J-P- illustrate how strictly courts examine causation and medical-necessity claims.
8. What happens if the exceptional-circumstances standard is not met?
If the respondent does not meet both the evidentiary burden and the 180-day deadline, rescission under INA § 240(b)(5)(C)(i) is unavailable. The page correctly notes that alternative theories must then be evaluated, such as:
Lack of notice under INA § 240(b)(5)(C)(ii) (no time limit),
Ineffective assistance under Matter of Lozada,
Equitable tolling (where recognized),
Joint motions or sua sponte reopening.
9. What kinds of emergencies have courts accepted as exceptional circumstances?
Examples include:
Serious sudden illness documented by medical professionals (Ferrari v. Gonzales, 150 F. App’x 594 (9th Cir. 2005));
Interpreter failure preventing participation (Nazarova v. INS, 171 F.3d 478 (7th Cir. 1999));
Ineffective assistance claims properly raised under Lozada.
Relevant examples appear on pages 4–5.
10. What are the most common reasons these motions are denied?
Denials often result from:
Filing after the 180-day deadline
Weak or inconsistent documentation
No credible causation
Mislabeling a lack-of-notice case as exceptional circumstances
Attempting an ineffective-assistance claim without Lozada compliance
Unexplained gaps in the timeline
These pitfalls are detailed on page 6.
11. Can I file more than one motion to reopen?
Generally no. Only one motion to reopen is permitted by statute. However, respondents may pursue other bases for reopening—such as lack of notice, joint motions, or sua sponte reopening—depending on the facts. See the guidance on alternative theories on page 3.
12. Should I hire an attorney for an exceptional-circumstances motion?
Yes. These motions involve strict statutory rules, time-sensitive filing, and heavy evidentiary burdens. Courts scrutinize every detail, and mistakes can permanently foreclose rescission of an in absentia order. Skilled counsel can develop a strong factual record, anticipate DHS objections, and ensure compliance with Lozada and other procedural requirements.
Other Helpful Resources:
See Also:
CIL Guide to the Circumvention of Lawful Pathways Rule
