(a) In any exclusion proceeding before an Immigration Judge in which the applicant fails to appear, the Immigration Judge shall conduct an in absentia hearing if the Immigration Judge is satisfied that notice of the time and place of the proceeding was provided to the applicant on the record at a prior hearing or by written notice to the applicant or to the applicant's counsel of record on the charging document or at the most recent address in the Record of Proceeding.
(b) In any deportation proceeding before an Immigration Judge in which the respondent fails to appear, the Immigration Judge shall order the respondent deported in absentia if: (1) The Service establishes by clear, unequivocal and convincing evidence that the respondent is deportable; and (2) the Immigration Judge is satisfied that written notice of the time and place of the proceedings and written notice of the consequences of failure to appear, as set forth in section 242B(c) of the Act (8 U.S.C. 1252b(c)), were provided to the respondent in person or were provided to the respondent or the respondent's counsel of record, if any, by certified mail.
(c) In any removal proceeding before an Immigration Judge in which the alien fails to appear, the Immigration Judge shall order the alien removed in absentia if:
(1) The Service establishes by clear, unequivocal, and convincing evidence that the alien is removable; and
(2) The Service establishes by clear, unequivocal, and convincing evidence that written notice of the time and place of proceedings and written notice of the consequences of failure to appear were provided to the alien or the alien's counsel of record.
(d) Written notice to the alien shall be considered sufficient for purposes of this section if it was provided at the most recent address provided by the alien. If the respondent fails to provide his or her address as required under § 1003.15(d), no written notice shall be required for an Immigration Judge to proceed with an in absentia hearing. This paragraph shall not apply in the event that the Immigration Judge waives the appearance of an alien under § 1003.25.
[59 FR 1899, Jan. 13, 1994, as amended at 62 FR 10334, Mar. 6, 1997; 62 FR 15362, Apr. 1, 1997]
Notes of Decisions
Cited in
56
cases (
7 in the last 5 years), 2003–2026 · leading case:
M-r-a, 24 I. & N. Dec. 665 (BIA 2008).
M-r-a, 24 I. & N. Dec. 665 (BIA 2008).
· cites it 3× “Furthermore, 8 C.F.R. § 1003.26 (c) (2008) specifically provides that in any removal proceeding in which the alien fails to appear, the Immigration Judge must order the alien removed in absentia if the following requirements are satisfied: (1) The Service establishes by clear,…”
Mondaca-Vega v. Holder, 808 F.3d 413 (9th Cir. 2015).
· cites it 2× “” § 1229a(b)(5)(A) (emphasis added); see also 8 C.F.R. § 1003.26 . In contrast, Congress has also mandated (1) if an alien is an applicant for admission, the alien must establish that he or she is “clearly and beyond doubt entitled to be admitted and is not inadmissible under…”
Gualterio Santos-Santos v. William P. Barr, 917 F.3d 486 (6th Cir. 2019).
“ed; (3) the acts or conduct alleged to be in violation of law; (4) the charges against the alien and the statutory provisions alleged to have been violated; (5) notice that the alien may be represented, at no cost to the government, by counsel or other authorized representative;…”
Laparra, 28 I. & N. Dec. 425 (BIA 2022).
· cites it 2× “See 8 C.F.R. § 1003.26 (c)(2) (2021) (stating that a noncitizen shall be ordered removed in absentia if, among other things, it is established that he or she received “written notice of the time and place of proceedings and written notice of the consequences of failure to…”
Sanchez-herbert, 26 I. & N. Dec. 43 (BIA 2012).
· cites it 2× “See section 240(b)(5) of the Act; 8 C.F.R. § 1003.26 (2012). If the DHS meets its burden, the Immigration Judge should issue an order of removal; if it cannot, the Immigration Judge should terminate proceedings.”
Toora v. Holder, 603 F.3d 282 (5th Cir. 2010).
· cites it 2× “Because Toora received notice of his deportation proceeding and he was deportable based on his entering the United States without inspection, the original IJ had the authority pursuant to 8 C.F.R. § 1003.26 to hold a deportation hearing and enter a valid deportation order in…”
Vaz dos Reis v. Holder, 606 F.3d 1 (1st Cir. 2010).
“The IJ deemed the motion untimely; the petitioner, by his own admission, had known of the removal order since the fall of 2000, yet had not taken any steps to vacate it during the intervening years. The petitioner appealed to the BIA, positing that the IJ had abused her…”
United States v. Ramirez-Carcamo, 559 F.3d 384 (5th Cir. 2009).
· cites it 2× “See 8 C.F.R. § 1003.26 (c). 1 Ramirez-Carcamo did not remain outside of the United States.”
Moussa Soumah v. Eric Holder, Jr., 403 F. App'x 999 (6th Cir. 2010).
· cites it 2× “Soumah does not contest removability but, citing 8 C.F.R. § 1003.26 (c), rests on the argument that the Service did not establish that he was provided with written notice.”
Usman Ahmed v. Alberto R. Gonzales, 432 F.3d 709 (7th Cir. 2005).
· cites it 2× “8 C.F.R. § 1003.26 . The Immigration and Nationality Act’s discussion of removal proceedings states: (5) Consequences of failure to appear (A) In general Any alien who, after written notice required under paragraph (1) or (2) of section 1229(a) of this title has been provided to…”
Amoncio Cruz-Gomez v. Loretta Lynch, 801 F.3d 695 (6th Cir. 2015).
“Similarly, 8 C.F.R. § 1003.26 (c)(2), which is part of the INA's implementing regulations, provides that an alien who fails to appear shall be removed in absentia if there is "clear, unequivocal, and convincing evidence that written notice of the time and place of proceedings…”
— 8 C.F.R. § 1003.26(a) — 2 cases
— 8 C.F.R. § 1003.26(c) — 2 cases
Usman Ahmed v. Alberto R. Gonzales, 432 F.3d 709 (7th Cir. 2005).
“8 C.F.R. § 1003.26 . The Immigration and Nationality Act’s discussion of removal proceedings states: (5) Consequences of failure to appear (A) In general Any alien who, after written notice required under paragraph (1) or (2) of section 1229(a) of this title has been provided to…”
— 8 C.F.R. § 1003.26(d) — 1 case
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