A new unpublished BIA Decision reverses an Immigration Judge’s decision denying a motion to reopen removal proceedings where the immigrant was ordered removed in absentia. Remarkably, the judge entered the removal order even though the immigrant was physically present in court—because he “declined to state his name.” The Board sustained the appeal and said the IJ should not have done that.
This decision highlights a common misunderstanding about what it means to “appear” for an immigration court hearing. Under INA § 240(b)(5), a person may be ordered removed in absentia only if they fail to appear at a scheduled hearing after receiving proper notice. But what if the person is in the courtroom and declines to participate?
The Board’s decision confirms what due process demands: presence means presence. And silence—while potentially disruptive—is not grounds for pretending someone wasn’t there.
There are many reasons someone might decline to speak in court. They may not understand the proceedings, feel distrustful of the process, or simply be scared. None of those justify pretending they’re absent. Immigration Judges have tools to deal with uncooperative respondents—contempt, continuances, or even referral to mental competency assessments—but skipping straight to removal in absentia undermines the fairness of the system.
This case also reinforces the importance of Motions to Reopen in correcting improper in absentia orders. Although in absentia orders are notoriously hard to challenge, this decision shows that the Board will step in when the statutory criteria aren’t met—even if the facts are unusual.
For attorneys and pro se respondents alike, this decision is a reminder to scrutinize the basis of an in absentia order. Was the person really absent? Did they receive proper notice? Did the IJ follow procedure? These aren’t technicalities—they’re the bedrock of procedural due process.
We don’t yet have a published precedent specifically holding that an uncooperative respondent cannot be deemed absent, but this unpublished case could be useful in building that record. It also offers a persuasive hook for practitioners facing similar situations: just because a respondent is silent does not mean they forfeited their hearing.
In the bigger picture, this case speaks to a core tension in immigration court: how to balance efficiency with fairness. Judges under pressure to move dockets quickly may be tempted to treat non-cooperation as a waiver of rights. But removal is one of the most serious penalties the government can impose. It requires procedural rigor—especially when the stakes include family separation, loss of asylum eligibility, or permanent bars to reentry.
Immigrants in court deserve the dignity of being treated as present when they are present. Even when they make things difficult, they’re still owed a process that respects the law. This case reminds us of that.