Cubans Facing Deportation Orders in Absentia: Steps to Reopen Your Immigration Case

Missing an immigration court hearing in the United States can lead to serious consequences, even if the individual was unaware of the requirement to appear.

Under certain conditions, the court may issue a deportation order in absentia, meaning the immigrant was not present to defend their case.

For Cubans in this situation, U.S. law provides avenues to request the reopening of the case, potentially overturning the deportation order if specific criteria are met.

However, simply stating that the hearing was missed is insufficient. It’s essential to demonstrate a legally recognized reason, submit a formal request, and adhere to the respective deadlines.

Federal regulation 8 CFR 1003.23 outlines the conditions for filing a motion to reopen with an immigration judge.

Additionally, section 240 of the Immigration and Nationality Act (INA) governs deportation orders issued when individuals fail to appear in court.

Understanding Deportation Orders Issued in Absentia

A deportation order in absentia is a decision rendered by an immigration judge when someone misses their scheduled hearing.

To issue such an order under section 240 of the INA, specific legal requirements must be met, including proper notification to the immigrant or their attorney and proof by the Government that the individual is deportable.

Even if the immigrant is absent, the process does not halt or remain pending indefinitely. The judge can proceed with the case and issue an order allowing for the person’s removal from the United States.

Nonetheless, an order in absentia is not always final.

The Executive Office for Immigration Review (EOIR), part of the Department of Justice overseeing immigration courts, identifies three main grounds to request reopening and overturning these orders.

Grounds for Requesting to Reopen a Deportation Order

1. Exceptional Circumstances: 180-Day Limit

The first possibility applies to those who missed their hearing due to exceptional circumstances beyond their control.

Examples include severe illness of the immigrant or immediate family members, or extreme violence or cruelty.

Not every difficulty qualifies as an exceptional circumstance. The reason must be significant and supported by evidence.

According to EOIR’s official guidelines on motions to reopen orders issued in absentia, there is a 180-day period from the date of the deportation order to file a motion.

For instance, if an individual was hospitalized for a serious condition at the time of the hearing, they may present medical records and admission documents to justify their absence.

The presence of evidence does not guarantee the judge will grant the motion; the court must determine if the facts meet the legal standard.

2. Lack of Notification: No 180-Day Restriction

The second option is crucial for those who discover a deportation order months or years later.

If an immigrant can prove they did not receive the required notification about their hearing, they can file a motion to reopen the case at any time, without the typical 180-day limit.

This exception is outlined in section 240(b)(5)(C) of the INA and 8 CFR 1003.23(b)(4)(ii).

Claiming a notification was never received doesn’t automatically reopen the case.

The judge will examine the circumstances of the notification, the information in the record, and the immigrant’s duty to keep their address current.

There are situations where a new notification isn’t required if the individual failed to update their address.

Thus, those who moved without informing the court may face additional challenges in proving their absence should be excused.

The EOIR provides official guidance on updating contact information. Keeping the address current is a vital obligation during immigration proceedings.

3. Detention Preventing Court Appearance

There is a third exception for individuals who were in federal or state custody and couldn’t attend their hearing due to circumstances beyond their control.

The law allows these individuals to request reopening at any time.

It’s not enough to claim detention near the hearing date; it must be shown that custody prevented attendance and that the absence wasn’t the immigrant’s responsibility.

Relevant proof could include detention records, admission and release documents, communications with authorities, and other related evidence.

Procedure for Reopening an In Absentia Deportation Order

The process involves submitting a Motion to Reopen an In Absentia Order.

According to the EOIR’s Immigration Court Practice Manual, the application must explain the reasons for the absence and meet procedural requirements.

Here are the essential steps:

• Verify the case status. Confirm if there is an in absentia order, when it was issued, and which court has the file.
• Identify the legal basis for reopening. Determine if it involves exceptional circumstances, lack of proper notification, or inability to appear due to detention.
• Gather evidence. Prepare medical documents, detention records, correspondence, proof of residence, or other pertinent evidence.
• Draft the written motion. Detail the facts and legal grounds, identify the case, and explicitly request to reopen the procedure and void the in absentia order.
• Submit it to the appropriate court. Typically, the request is directed to the immigration court with administrative control of the file.
• Notify the opposing party. Fulfill delivery requirements for a copy of the motion to the appropriate Department of Homeland Security (DHS) office.

Regulations require that submitted documents be in English or accompanied by a certified English translation.

If the immigrant has legal representation, the requirements for the attorney or authorized representative’s appearance before the EOIR must also be met.

The manual suggests including the EOIR-33/IC form to ensure the court has the applicant’s current address.

Filing the motion does not mean the order has been overturned. The judge must review the arguments and issue a decision.

Deportation Execution During Motion Review

One major difference between reopening requests for in absentia orders and other immigration motions is whether deportation can proceed while the judge decides the motion.

Under the law, filing a motion to annul an in absentia order under section 240(b)(5)(C) automatically stays deportation while the judge considers the request.

This protection should not be misconstrued as a general authorization to remain indefinitely in the U.S. and does not apply automatically to all types of motions to reopen an immigration case.

The stay is linked to the legally contemplated request to rescind an in absentia order and remains in effect while the judge adjudicates the motion.

If the motion is denied, the consequences and possible subsequent avenues depend on the specific procedural situation.

Costs Associated with Reopening a Case in 2026

As of 2026, immigration procedure fees have changed, so it’s crucial to differentiate between the cost of filing a motion and other charges related to immigration law implementation.

According to the EOIR’s official fee schedule, updated on October 5, 2026, the general fee for filing a motion to reopen or reconsider before an immigration judge is $1,095.

The same schedule lists a $950 fee for certain motions based solely on immigration benefits requests that don’t require payment.

However, not all motions to annul an in absentia deportation order are subject to these fees.

The EOIR explicitly states that payment is not required when the basis is under section 240(b)(5)(C)(ii) of the INA concerning inadequate notification or inability to appear due to federal or state custody without the immigrant’s responsibility.

Therefore, it’s essential to accurately identify the legal basis of the request and verify if an exemption applies before paying.

Since February 23, 2026, the EOIR mandates that immigration fees it administers be paid electronically through its official portal, not by checks or money orders.

The $5,300 Fee: Who Does It Affect?

Beyond motion filing costs, there is a separate federal fee that may impact certain individuals with in absentia deportation orders.

On October 1, 2026, DHS published a notice in the Federal Register about immigration fee adjustments for the fiscal year 2027.

The provision, effective October 16, 2026, sets a $5,300 fee for specific individuals who received an in absentia deportation order and are later arrested by Immigration and Customs Enforcement (ICE).

It’s crucial to clarify that this fee is not automatically applicable to everyone with an in absentia order or the cost of filing a reopening motion.

The charge applies to a legally defined situation: an order issued under section 240(b)(5), followed by an ICE arrest.

The regulation also includes an exception for those who manage to have the in absentia order rescinded under section 240(b)(5)(C).

DHS notes that this enforcement fee does not allow for discretionary payment waivers, though it must be applied respecting the legal exception related to rescinding the order.

Therefore, the $1,095 fee for a court motion subject to the general fee and the $5,300 fee related to specific ICE arrests are different concepts and should not be confused.

Checking for an In Absentia Deportation Order

Individuals who missed court or are unaware of their case status can check the EOIR’s official case information system. The service is available in Spanish at acis.eoir.justice.gov/es.

The Alien Registration Number (A-number) is used for this inquiry, identifying the immigrant in U.S. authorities’ records.

The system can provide information about hearings, decisions, and case status. However, online data does not replace the complete judicial record or official notifications.

Those needing to locate their court or contact the EOIR can also use the official immigration court contact directory.

If there is a deportation order, it’s crucial to obtain the judicial documentation and verify dates before deciding on the appropriate course of action.

Considerations for Deported Individuals

Cases of immigrants already out of the U.S. require additional analysis.

Regulation 8 CFR 1003.23 includes restrictive provisions on motions filed after departure or deportation, which may involve legal controversies and judicial precedents.

Therefore, it would be incorrect to assure that a deported person can reopen their case using the same procedure and under the same conditions as someone still in the U.S.

A case highlighting the issue’s complexity involved a Cuban deported to the island after an in absentia order was issued while he was in a coma.

This scenario, publicly known in September, underscored difficulties when someone couldn’t participate in their process due to a severe medical condition and later faces obstacles in challenging the decision.

Being gravely ill might be relevant for requesting reopening, but it doesn’t mean any request will automatically succeed.

Pre-Application Considerations

In deportation procedures under section 240 of the INA, typically only one motion is allowed to rescind an in absentia order per the specific regulation.

This underscores the importance of properly preparing the request, accompanying it with documentation, and determining which legal exceptions apply to the case.

It’s also crucial to distinguish between reopening the procedure and obtaining an immigration benefit.

If the judge grants the motion and annuls the in absentia order, the case can proceed in court. This does not automatically grant permanent residency, asylum, immigration freedom, or definitive protection from potential deportation.

For Cubans, the possibility of applying for future immigration adjustment or other benefits depends on their background, the manner of entry into the U.S., the existence of other impediments, and the rules applicable to their situation.

Challenging an in absentia order is a procedural matter distinct from the requirements needed to obtain residency under the Cuban Adjustment Act.

Therefore, those discovering a deportation order should not assume missing a hearing can be resolved simply by requesting a new appointment or filing another immigration proceeding.

The law provides specific alternatives, each requiring grounds, evidence, and specific procedures.

Particularly, the 180-day period for exceptional circumstances and the option to file a motion anytime due to lack of notification or involuntary detention are two critical time rules to review before taking action.

Legal Notice: This article provides general information for informational purposes only and does not constitute legal advice. U.S. immigration laws and policies change frequently. To assess your specific case, consult with a licensed immigration attorney or a representative accredited by the Department of Justice.