Motions to Reopen In Absentia Orders Based on Psychological Trauma or Mental Illness
Date of Information: 12/05/2025
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Overview
Psychological trauma and serious mental illness are unfortunately common in immigration cases, particularly for asylum seekers and survivors of violence. Those same conditions can also make it difficult or impossible for a person to track dates, understand court instructions, or physically get to a hearing. In limited circumstances, that kind of impairment can support a motion to reopen and rescind an in absentia removal order as an “exceptional circumstance.” But the standard is demanding and fact-intensive; judges regularly deny motions where the mental health evidence is thin or the causal link is not clear.
This page focuses on in absentia orders where the noncitizen missed the hearing because of psychological trauma or mental illness, and outlines how to frame and support a motion to reopen on that basis.
Legal Framework: In Absentia Orders and “Exceptional Circumstances”
When a respondent fails to appear at a scheduled hearing after receiving proper notice, the immigration judge may enter a removal order in absentia. 8 U.S.C. § 1229a(b)(5)(A). A respondent can seek rescission of that order by filing a motion to reopen on one of three basic theories:
Lack of proper notice
Exceptional circumstances that caused the failure to appear
Certain changed-country-conditions or other statutory reopening grounds unrelated to in absentia rescission
For exceptional-circumstances reopening specifically:
Statutory basis: A respondent may move to reopen and rescind an in absentia removal order “within 180 days after the date of the order of removal” if “the alien demonstrates that the failure to appear was because of exceptional circumstances.” 8 U.S.C. § 1229a(b)(5)(C)(i).
Definition of “exceptional circumstances”: The INA defines “exceptional circumstances” as circumstances “such as 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.” 8 U.S.C. § 1229a(e)(1).
Psychological trauma or mental illness is not listed by name in the statute, but it can fit within “serious illness of the alien” when the condition is severe, well-documented, and clearly linked to the missed hearing.
How Mental Health Conditions Can Fit the Exceptional-Circumstances Standard
The statute is deliberately narrow. Courts and the BIA repeatedly stress that “exceptional circumstances” is a high bar that excludes “less compelling circumstances” within the respondent’s control. 8 U.S.C. § 1229a(e)(1).
For psychological trauma or mental illness to contribute to an “exceptional circumstances” finding, you generally need to show:
A serious mental health condition
Diagnosed PTSD, major depressive disorder, severe anxiety, bipolar disorder, psychotic disorders, traumatic brain injury, or similar conditions can qualify as “serious illness,” particularly if they significantly impair cognition or functioning.
BIA competency jurisprudence recognizes that mental illness can affect a respondent’s ability to understand proceedings, consult with counsel, and present a case. Matter of M-A-M-, 25 I. & N. Dec. 474, 479–81 (B.I.A. 2011).
Functional impairment at the time of the missed hearing
It is not enough to show that the respondent has a diagnosis. Matter of M-A-M- emphasizes that “diagnoses of mental illness do not automatically equate to a lack of competency” and that the focus must be on functional capacity in the actual proceedings. 25 I. & N. Dec. at 480.
For in absentia cases, you need evidence that, at or around the hearing date, the condition caused disorientation, memory loss, inability to organize transportation, self-neglect, acute suicidal ideation, hospitalization, or other specific limitations.
A direct causal link to the failure to appear
The central question is whether the mental health condition actually caused the respondent to miss the hearing, as opposed to mere negligence.
In Gallegos v. Garland, the Eighth Circuit rejected an exceptional-circumstances argument where the respondent cited depression, anxiety, and a prior involuntary psychiatric hospitalization, but the record did not tie those conditions concretely to her misremembering the hearing date; the court treated her error as within her control. Gallegos v. Garland, 25 F.4th 1087, 1090–92 (8th Cir. 2022).
By contrast, in Hernandez-Galand v. Garland, the Ninth Circuit held that exceptional circumstances warranted reopening where the record showed the respondent’s memory problems, inability to read, and her family’s misinterpretation of the hearing notice; the court emphasized that her failure to appear was due to circumstances beyond her control, not a lack of diligence. Hernandez-Galand v. Garland, 996 F.3d 1030, 1034–39 (9th Cir. 2021).
Circumstances beyond the respondent’s control despite reasonable efforts
Courts look at whether the respondent made reasonable efforts to comply, examined in the “totality of the circumstances.” See, e.g., Hernandez-Galand, 996 F.3d at 1038–39 (considering memory issues, illiteracy, misunderstanding of dates, and lack of motive to evade proceedings).
Matter of M-A-M- and subsequent cases stress that mental competency is not static; new evidence of mental deterioration or previously undocumented impairments can justify reopening. Matter of M-A-M-, 25 I. & N. Dec. at 480; Matter of M-J-K-, 26 I. & N. Dec. 773, 776–77 (B.I.A. 2016).
Deadlines and Equitable Tolling in Mental-Health-Based Motions
The 180-Day Statutory Deadline
For in absentia rescission based on exceptional circumstances, the motion “must be filed within 180 days after the date of the order of removal.” 8 U.S.C. § 1229a(b)(5)(C)(i).
That deadline is strictly enforced in the sense that a bare, untimely motion will ordinarily be denied. But multiple circuits recognize that statutory deadlines for motions to reopen are subject to equitable tolling in appropriate cases, including where mental illness has impaired a respondent’s ability to act.
Equitable Tolling and Mental Illness
The Supreme Court has confirmed that courts of appeals have jurisdiction to review denials of motions to reopen, including those involving untimeliness and equitable tolling. Reyes Mata v. Lynch, 576 U.S. 143, 145–48 (2015).
The Fifth Circuit has held that the 90-day deadline for statutory motions to reopen is subject to equitable tolling and applied the general standard that a litigant must show (1) diligent pursuit of rights and (2) an extraordinary circumstance that prevented timely filing. Lugo-Resendez v. Lynch, 831 F.3d 337, 344–45 (5th Cir. 2016).
By analogy, where a respondent’s severe mental illness or psychological trauma renders them unable to understand the in absentia order, consult counsel, or take steps to seek reopening, you can argue for equitable tolling of the 180-day period. The key is to document:
When the respondent first became capable of understanding the order and their rights;
What about the mental health condition specifically prevented earlier action; and
What concrete steps the respondent and counsel took once they were able to act.
You should expect heavy scrutiny of diligence; long, unexplained gaps will undermine any tolling argument.
Evidence to Support a Mental-Health-Based Motion to Reopen
Because the statutory standard is narrow and the case law is mixed, the quality of the record often decides the motion. Useful evidence typically includes:
Medical and psychological records
Hospital records, psychiatric evaluations, therapy notes, medication logs, and discharge summaries around the time of the missed hearing.
Expert reports explaining diagnosis, symptom severity, functional limitations, and how those limitations affected the respondent’s ability to attend the hearing or track the date.
Competency-related evidence
Evaluations or prior findings bearing on competency, especially if the respondent has ever been found incompetent in criminal or immigration proceedings.
Evidence that the respondent did not understand the nature or consequences of the hearing or the removal process, tying back to the standards in Matter of M-A-M- and Matter of J-S-S-, 26 I. & N. Dec. 679, 682–83 (B.I.A. 2015).
Respondent’s detailed declaration
A trauma-informed, chronology-driven declaration describing:
The underlying trauma or mental illness;
Specific symptoms at the time of the missed hearing (e.g., dissociation, panic attacks, severe depression, cognitive fog, psychotic episodes);
How those symptoms interfered with understanding the notice, remembering the date, navigating transportation, or leaving the house;
Any attempts to attend, including confusion over dates, reliance on others, or breakdowns on the way to court.
Third-party corroboration
Statements from family, friends, caseworkers, shelter staff, or community members describing what they observed around the hearing date.
Evidence that others had to remind the respondent of appointments, manage medications, or physically accompany them anywhere outside the home.
Documentation of notice and misunderstanding
Copies of all hearing notices; records showing language barriers, literacy issues, or date-format confusion (as in Hernandez-Galand).
Any evidence that the respondent was relying on an incompetent preparer, notario, or misinformed third party to track the hearing date.
Timeline and tolling evidence
A clear chronology from the in absentia order to the present, including when the respondent learned of the order, when mental health treatment began, and when they first sought legal help.
Documentation of barriers to earlier filing (hospitalization, institutionalization, incarceration, homelessness, acute crises).
Case Law Landscape: Mental Health and In Absentia Reopening
The published case law squarely addressing mental illness as an “exceptional circumstance” is relatively sparse, and outcomes are very fact-dependent. A few important threads:
Mental health alone is not enough
Gallegos v. Garland illustrates that merely citing depression, anxiety, or hospitalization is insufficient if you cannot show how those conditions concretely caused the missed hearing and why the respondent could not manage basic calendaring or seek help. 25 F.4th at 1090–92. Justia+1
Cognitive and literacy limitations can support reopening
In Hernandez-Galand, the Ninth Circuit accepted the respondent’s sworn statements about memory problems and inability to read, combined with her family’s misinterpretation of the hearing date, as circumstances “beyond her control” and found exceptional circumstances. 996 F.3d at 1034–39.
Competency framework shows how mental illness affects proceedings
Matter of M-A-M- and Matter of J-S-S- establish that if there are indicia of mental incompetence, an IJ must evaluate competency and apply appropriate safeguards; they also note that mental competency and mental-health evidence are dynamic, not fixed. Matter of M-A-M-, 25 I. & N. Dec. at 480; Matter of J-S-S-, 26 I. & N. Dec. at 682–83.
Recent commentary and practice advisories emphasize that this “non-static” view of mental health supports later motions to reopen when new evidence of serious mental illness emerges.
Equitable tolling is available but demanding
Lugo-Resendez confirms that statutory filing deadlines for reopening can be equitably tolled, and adopts the standard that the noncitizen must show diligent pursuit and an extraordinary circumstance that prevented timely filing. 831 F.3d at 344–45.
Reyes Mata confirms that courts of appeals can review BIA denials of reopening, including tolling decisions, removing one procedural obstacle to litigating these issues. 576 U.S. at 145–48.
Taken together, this body of law supports the argument that serious psychological trauma or mental illness can qualify as an exceptional circumstance when it demonstrably deprives the respondent of the practical ability to attend the hearing or respond to the process—and when the motion is timely or grounded in a well-supported tolling theory.
Practical Strategy and Common Pitfalls
When you are building a mental-health-based motion to reopen an in absentia order, keep the following strategic points in mind:
Lead with function, not just diagnosis.
Judges care less about labels and more about what the respondent could or could not do on or around the hearing date. Anchor every piece of evidence to specific functional limitations and concrete consequences (e.g., “could not remember appointments,” “would not leave the house,” “was actively suicidal”).Draw a straight line from symptoms to the missed hearing.
The Gallegos decision shows that courts will scrutinize causation; you should explicitly explain why, but for the mental health condition, the respondent would have appeared.Use competency standards to frame the story.
Without turning the motion into a full competency treatise, borrow the language from Matter of M-A-M- about rational and factual understanding, ability to consult with counsel, and ability to present evidence and cross-examine witnesses, and show how the condition undermined those capacities.Over-document the timeline and diligence.
Especially if you are close to, or past, the 180-day window, you need a clean, well-supported chronology and a clear justification for any delay, framed in Lugo-Resendez terms. Justia+1Anticipate skepticism about “convenient” diagnoses.
Whenever possible, anchor the mental-health evidence in records that predate the in absentia order or show a continuous course of treatment, and include objective evidence (hospitalizations, medication history, prior evaluations) rather than only self-reports.Consider alternative or additional grounds.
When mental illness is intertwined with other issues—ineffective assistance, language barriers, notario fraud, or confusing notices—plead all viable theories (lack of notice, exceptional circumstances, motions based on changed conditions, and sua sponte reopening) and support each separately with facts and law.
Need Help with a Motion to Reopen?
If psychological trauma or mental illness contributed to a missed hearing, you should not navigate this alone. These cases are fact-intensive, deadline-sensitive, and require sophisticated evidentiary development. Click below to schedule a consultation and get a clear, strategic assessment of your reopening options.
Frequently Asked Questions About Reopening In Absentia Orders Based on Psychological Trauma or Mental Illness
1. Can psychological trauma or mental illness qualify as an “exceptional circumstance” for missing an immigration court hearing?
Yes. Although the statute does not list psychological or psychiatric conditions by name, severe mental illness or acute psychological trauma can qualify as a “serious illness” under 8 U.S.C. § 1229a(e)(1) when it impairs a person’s functional ability to attend the hearing. The key is showing that the condition was serious, well-documented, and directly caused the non-appearance.
2. What kinds of mental health conditions may support reopening an in absentia order?
Conditions such as PTSD, major depressive disorder, bipolar disorder, severe anxiety, psychotic disorders, and traumatic brain injury may support reopening when they significantly impair cognition or daily functioning. The BIA’s competency cases—such as Matter of M-A-M- and Matter of J-S-S-—recognize that such diagnoses can limit a respondent’s ability to understand proceedings or take necessary steps to comply with them.
3. Is having a diagnosis enough to meet the “exceptional circumstances” standard?
No. Courts consistently hold that a diagnosis alone is insufficient. What matters is functional impairment at the time of the missed hearing. Evidence must show how the condition affected memory, comprehension, ability to leave home, transportation capability, or decision-making—as emphasized in Matter of M-A-M- (diagnosis does not automatically equal incompetence).
4. What evidence is most persuasive in mental-health-based motions to reopen?
Judges expect detailed and contemporaneous documentation, including:
Psychiatric evaluations, therapy notes, hospital records, and medication history
Expert opinions describing the respondent’s functional limitations
Statements from family, caseworkers, or shelter staff
Records showing illiteracy, misunderstanding of notices, or date confusion
A careful, chronological declaration explaining symptoms and events around the missed hearing
5. How do courts evaluate whether mental illness actually caused the failure to appear?
They look for a direct causal link between symptoms and the missed hearing. For example:
In Gallegos v. Garland, mental illness did not meet the standard because the evidence didn’t show how the condition caused the date confusion.
In Hernandez-Galand v. Garland, the Ninth Circuit found exceptional circumstances where memory problems, illiteracy, and misunderstanding of the notice made attendance effectively impossible.
6. What is the deadline for filing a motion to reopen based on psychological trauma or mental illness?
A motion to reopen based on “exceptional circumstances” must be filed within 180 days of the in absentia order. This deadline comes from 8 U.S.C. § 1229a(b)(5)(C)(i). Courts generally treat this time limit strictly, though equitable tolling may apply in limited situations.
7. Can the 180-day deadline be extended if mental illness made it impossible to file sooner?
Possibly. Although the INA itself provides no tolling mechanism for exceptional-circumstances motions, several circuits recognize equitable tolling of reopening deadlines where a respondent demonstrates both:
Diligent pursuit of rights, and
An extraordinary circumstance—such as severe mental illness—that prevented timely filing.
Cases such as Lugo-Resendez and Reyes Mata confirm tolling’s availability when properly supported.
8. What are common reasons courts deny trauma- or mental-health-based motions to reopen?
Denials frequently occur when:
Documentation is sparse, inconsistent, or conclusory
The diagnosis is not linked to functional impairment
There is no clear causal explanation for the missed hearing
The timeline is incomplete or unexplained
The motion is filed late without a strong tolling argument
The respondent could have sought help but did not, under the totality of circumstances
9. Does trauma connected to past persecution or violence help support reopening?
Yes, but only when it materially affected the respondent’s ability to attend the hearing. Many asylum seekers experience chronic trauma; to qualify, the trauma must have produced functional limitations—such as dissociation, debilitating anxiety, confusion, or inability to leave home—around the time of the missed hearing. Clear documentation is essential.
10. What should a respondent include in their declaration?
A strong declaration should:
Describe the underlying trauma or mental illness in detail
Explain symptoms on and around the hearing date
Provide a precise chronology, including attempts to attend
Describe how the respondent misunderstood the notice or was unable to travel
Connect symptoms explicitly to the failure to appear
Courts expect specificity, not general statements.
11. Can mental illness justify reopening even if the respondent received proper notice of the hearing?
Yes. Notice is a separate issue. A respondent may have received proper notice but still been unable to appear because mental illness rendered them incapable of understanding the notice, tracking dates, or traveling to court. When notice is proper, the burden falls entirely on proving exceptional circumstances.
12. Do competency standards affect motions to reopen based on mental illness?
They can. The BIA’s competency framework (e.g., Matter of M-A-M- and Matter of J-S-S-) helps show how mental illness impacts a respondent’s ability to understand proceedings or act on their own behalf. Because competency can change over time, new evidence of mental deterioration can justify reopening even years after the original order.
13. Should respondents raise alternative reopening theories along with exceptional circumstances?
Often yes. Mental illness may intertwine with ineffective assistance, notario fraud, language barriers, or misunderstandings of hearing notices. Filing under multiple theories—such as lack of notice, statutory reopening, or sua sponte reopening—can strengthen the overall posture of the case.
14. How can an attorney strengthen a mental-health-based motion to reopen?
An attorney can:
Identify the strongest evidentiary gaps and obtain proper documentation
Prepare a detailed declaration tying symptoms to the missed hearing
Develop the tolling argument if the filing is late
Integrate competency principles and relevant case law
Preempt DHS objections by addressing credibility and causation issues up front
Other Helpful Resources:
See Also:
CIL Guide to the Circumvention of Lawful Pathways Rule
