Can an old in absentia removal order be reopened if a U visa was approved 10 years later?
Possibly, but U-visa approval 10 years later does not by itself reopen or erase an old in absentia removal order. It may support a request to reopen in some circumstances, especially if DHS agrees to a joint motion; otherwise, the person generally needs a separate legal basis to overcome the motion deadline or rescind the in absentia order.
The in absentia order
For a removal order entered because the person missed a hearing, the statute provides two principal grounds for rescission:
“Such an order may be rescinded only” by a motion filed within 180 days based on exceptional circumstances, or “at any time” if the person did not receive the required notice or was in federal or state custody through no fault of their own.[3]
The Immigration Court rules reflect those grounds and limit a person to one motion under this in absentia provision.[2] Thus, if the order is 10 years old, a motion based only on exceptional circumstances ordinarily is too late. A motion based on lack of required notice or qualifying custody may be filed at any time, but the person must prove that ground. U-visa approval, by itself, does not establish either one.[3]
A qualifying motion to rescind an in absentia order filed with the Immigration Judge carries an automatic stay of removal while the judge decides it.[3]
What the U-visa approval may do
The approval may provide a separate reason to seek reopening, but it is not automatic relief from the removal order. The BIA has recognized that, if a U visa is granted, the person may file a motion to reopen and terminate removal proceedings under the U-visa regulation.[4] Whether that route is available and persuasive will depend on the procedural history, the current posture of the removal case, and the requested relief. For example, whether the Immigration Judge or the Board has jurisdiction over the case matters.[1][2]
Other possible routes include:
- A joint motion: The time and numerical limits generally do not apply to a motion to reopen agreed upon and jointly filed by all parties.[2]
- A sua sponte request: The Immigration Judge or Board has authority to reopen in specified circumstances on its own motion, but that is discretionary, not something the person can compel.[2][1]
The person’s approved U status may also be relevant to a later application for adjustment of status, but adjustment eligibility does not itself reopen the removal case. The U-visa adjustment statute generally requires at least three years of continuous physical presence in U status, among other requirements.[5]
Practical assessment
The key questions are: Was the order truly entered in absentia? Was notice properly served? Has a motion to reopen already been filed? Is the case before the Immigration Court or the Board? And is DHS willing to join a motion based on the approved U visa? Those facts determine the available procedure. The motion should also address the required supporting evidence and procedural filings; an ordinary motion to reopen generally must state the new facts and support them with evidence.[2]
Bottom line: An approved U visa 10 years later may help support a reopening request, particularly a joint motion, but it does not independently rescind the in absentia order or revive the expired 180-day exceptional-circumstances deadline. The notice and custody grounds remain potentially available at any time if supported by evidence.[3]