You found out there is a removal order against you from a hearing you never attended. Last week the Board of Immigration Appeals issued two precedent decisions that make both of the standard routes back from that order materially harder, and both of them arose out of the Ninth Circuit.
Matter of J-E-D-C-, 30 I&N Dec. 162 (BIA 2026), came down October 19. Matter of Chamorro Castillo, 30 I&N Dec. 170 (BIA 2026), came down October 22. Three days apart, the Board narrowed the evidentiary standard on one route and effectively closed the other in the most common fact pattern. If you have a pending motion to reopen an in absentia order, or you are inside the 180-day window and have not filed, the law you are filing under changed last week.
What are the only two ways to undo an in absentia order?
There are exactly two, and they are in the statute. Under INA § 240(b)(5)(C), 8 U.S.C. § 1229a(b)(5)(C), an in absentia removal order “may be rescinded only”:
- Exceptional circumstances. A motion to reopen filed within 180 days of the order, showing the failure to appear was because of exceptional circumstances. INA § 240(b)(5)(C)(i). The statute defines those narrowly at INA § 240(e)(1) — battery or extreme cruelty, your own serious illness, or the serious illness or death of a spouse, child, or parent — expressly excludes “less compelling circumstances,” and requires that they be beyond your control.
- Lack of notice. A motion to reopen filed at any time, showing that you did not receive notice in accordance with INA § 239(a)(1) or (2), or that you were in federal or state custody and your failure to appear was through no fault of your own. INA § 240(b)(5)(C)(ii). There is no deadline on this one. That is why it is the ground most people reach for years later.
Either motion stays your removal while it is pending. And on a petition for review, the court of appeals is confined by statute to three questions: the validity of the notice, your reasons for not attending, and whether you are removable. INA § 240(b)(5)(D). Those three questions are the whole case. Last week the Board tightened the first two.
Matter of J-E-D-C-: your sworn declaration is no longer presumed true
For twenty years, in the Ninth Circuit, a respondent’s affidavit supporting a motion to reopen had to be taken as true unless the immigration judge found it “inherently unbelievable” — Bhasin v. Gonzales, 423 F.3d 977, 987 (9th Cir. 2005), applied most recently in Perez-Portillo v. Garland, 56 F.4th 788, 795 (9th Cir. 2022). In practice a well-drafted declaration, standing alone, got you past the threshold.
In J-E-D-C-, the Board held that rule is inconsistent with Supreme Court authority and declined to follow it. The standard originated in Abudu v. INS, 802 F.2d 1096 (9th Cir. 1986), which analogized a motion to reopen to a motion for summary judgment — and the Supreme Court reversed that very decision. In INS v. Abudu, 485 U.S. 94, 109–10 (1988), the Court said it had “never suggested that all ambiguities in the factual averments must be resolved in the movant’s favor,” that the correct analogy is a motion for a new trial on newly discovered evidence, and that “the moving party bears a heavy burden.” The Board also relied on Garland v. Ming Dai, 593 U.S. 357, 371 (2021): “even if the BIA treats an alien’s evidence as credible, the agency need not find his evidence persuasive or sufficient to meet the burden of proof.”
The holding, in the Board’s words: in reviewing affidavits, declarations, or written statements of fact supporting a motion to reopen, immigration judges and the Board “are not required to accept as true facts set forth by the respondent, even when those statements are not inherently unbelievable.” The agency may instead assess reliability under the credibility standards that govern applications for relief — INA §§ 208(b)(1)(B)(iii) and 240(c)(4)(C) — so consistency with the record, inherent plausibility, and internal consistency are all fair game at the reopening stage.
The practical effect is immediate. A declaration that says “I did not understand I had to appear” is now weighed against the notice to appear in the file, against whether it was personally served, and against whether its contents were explained to you in your language. In J-E-D-C- the respondent said he thought a later notice with a different date was coming. The record showed DHS had personally served him with a notice carrying the date and time and had explained it in Spanish. The Board found the declaration not credible and dismissed the appeal.
There is a wrinkle that matters, and most write-ups of this decision will miss it. The Board acknowledged that it is generally bound by circuit precedent in the circuit where a case arises, citing Matter of U. Singh, 25 I&N Dec. 670, 672 (BIA 2012), and it quoted the Ninth Circuit’s own statement in Trigueros Quizar v. Blanche, No. 24-4847, 2026 WL 2620433, at *5 (9th Cir. Sept. 4, 2026), that “[a] BIA decision cannot displace our precedent.” The Board proceeded anyway, on the ground that where circuit precedent conflicts with Supreme Court precedent the Supreme Court controls. So inside the agency, you should expect the new standard. On a petition for review, Perez-Portillo is still Ninth Circuit law until the Ninth Circuit says otherwise. That changes where the argument gets won, not whether it exists — and it means preserving the issue cleanly below is now part of the job.
Matter of Chamorro Castillo: a correct address that bounced is still good notice
The second decision addresses the no-notice ground, and it comes out of a Ninth Circuit remand.
In United States v. Rivera-Valdes, 157 F.4th 978, 988–89 (9th Cir. 2025), cert. denied, 146 S. Ct. 2696 (2026), the Ninth Circuit held that notice in removal proceedings is governed by the due process standards of Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950), and Jones v. Flowers, 547 U.S. 220 (2006): when the government learns its notice efforts failed, that knowledge “triggers an obligation on the Government’s part to take additional reasonable steps to effect notice, if it is practicable to do so.” The court applied Rivera-Valdes to civil removal proceedings in Meza Medina v. Blanche, 2026 WL 2795426, at *5–7 (9th Cir. Sept. 18, 2026), and rejected the argument that statutory compliance alone ends the inquiry.
That looked like a real opening. Chamorro Castillo closes most of it.
The facts are ordinary, which is exactly why the decision is consequential. ICE filed a Form I-830 reporting the respondent’s address on release. The court mailed the hearing notice there. It came back marked “RETURN TO SENDER NOT DELIVERABLE AS ADDRESSED UNABLE TO FORWARD.” He did not appear and was ordered removed in absentia. On his motion to reopen he produced a letter from a postal employee explaining what had happened: his mailbox had filled up, the mail went back to the post office, was held ten days, and was returned unclaimed. The address was correct. He simply never got the notice.
The Board held: “When mail sent to the only address in the record provided for a respondent is returned as undeliverable, there are no additional reasonably available or practicable steps the Board or an Immigration Court can take to effect notice.” It rejected the suggestion that the court should have called the phone number ICE provided on the I-830: the immigration courts are “notoriously overburdened,” they are neutral quasi-judicial bodies rather than investigators, calling a respondent risks improper ex parte contact and risks disclosing information protected under 8 U.S.C. § 1367(a)(2), and an agency that goes looking for respondents starts to look like it is helping DHS find them.
So the undeliverable-mail argument, standing alone, is no longer a path. Under INA § 240(b)(5)(A) the notice is statutorily sufficient if sent to the most recent address you provided under INA § 239(a)(1)(F), and under INA § 240(b)(5)(B) no written notice is required at all if you never provided an address.
What is still a live argument
Chamorro Castillo distinguishes the two cases it was applying, and those distinctions are now the map:
- The address in the record was wrong or incomplete. In Rivera-Valdes the notice went to an address that omitted “Ave.” A garbled, truncated, or transposed address is not the address you gave.
- The agency used an address you did not provide. In Meza Medina the notice went to an address supplied by a third party rather than the one the respondent gave the court.
- DHS knew of a different address. The Board said it is appropriate for DHS to tell the court when it learns of an address differing from the one in the record — while noting that neither the Board nor immigration judges can see the A-file.
- Custody. INA § 240(b)(5)(C)(ii) separately covers failure to appear while in federal or state custody through no fault of your own. That ground is untouched.
- A defective notice to appear. A notice missing complete date, time, and place information is a different problem, and Niz-Chavez v. Garland, 593 U.S. 155 (2021), still governs it.
The mistakes that cause this
In thirty years I have seen the same four over and over.
Not filing the EOIR-33. You must tell the immigration court your address and any change to it on Form EOIR-33, under 8 C.F.R. §§ 1003.15(d) and 1003.38(e). Telling your attorney is not filing it. Telling ICE is not filing it — the I-830 is DHS’s obligation and a snapshot taken the day you were released. A post office change-of-address card does not reach the court either.
Assuming a later notice is coming. That was the losing argument in J-E-D-C-. If the date is on the notice to appear, the date is the date.
Not watching the mailbox. A full mailbox cost the respondent in Chamorro Castillo his hearing, and after last week it is not a defense.
Waiting. Exceptional circumstances carry a hard 180-day limit from the date of the order. Miss it and your only remaining statutory route is lack of notice — which is precisely the ground Chamorro Castillo just narrowed.
What to do if there is already an order against you
Get the record of proceedings and read the certificate of service and every address in the file. The question is not whether you received the notice. It is what address the court used and where that address came from. That is the difference between a motion that has something to work with and one that does not.
Then move quickly. Inside 180 days you have both grounds, and letting the clock run gives up the better one. File the EOIR-33 now regardless, because an unreachable respondent cannot be given notice of anything, including a decision in your favor.
And understand what a final order now carries. The Board’s own notice at the end of Chamorro Castillo spells it out: a person under a final removal order who willfully fails to depart, fails to apply in good faith for travel documents, or fails to present for removal faces a civil penalty of up to $998 for every day of violation, under INA § 274D and 8 C.F.R. § 280.53(b)(14). The Departments finalized that framework on October 14, 2026, at 91 FR 65390.
If there is an in absentia order against you or someone in your family, the 180-day clock may already be running and the notice argument is narrower than it was two weeks ago. Consultations on removal and detention matters are free. Call (562) 495-0554 or book at blerner.timetap.com.
Related: the current EOIR filing fees, including the fee for a motion to reopen, and the BIA’s October 16 decision ending the U visa continuance presumption.
This article is general information about United States immigration law and is not legal advice. Reading it does not create an attorney-client relationship. Immigration outcomes depend on the specific facts of each case. Law Offices of Brian D. Lerner, A Professional Corporation, 3233 E. Broadway, Long Beach, CA 90803. Brian D. Lerner is a Certified Specialist in Immigration and Nationality Law, The State Bar of California Board of Legal Specialization.