What to Do If You Can't Make Your Immigration Court Removal Hearing

If you are unable to attend your scheduled deportation hearing in immigration court, you can request that the date be changed. The procedure for this is to file legal paperwork called a "motion for a continuance."

By , Associate Professor · Creighton University School of Law

If you are a foreign-born person in the United States U.S immigration enforcement authorities are placing into removal (deportation) proceedings, you will receive what's called a Notice to Appear (NTA). The NTA will specify the date and place of your initial removal hearing in immigration court. You will be expected to personally attend this calendaring hearing and (assuming you ask for one), also attend a later individual, merits hearing. This is true even if your lawyer (or another representative) attends as well.

Try your best to go to your court hearing as scheduled. If you are unable to attend, however, you can request that the date be changed. The procedure for this is to file legal paperwork called a "motion for a continuance." The Immigration Judge (IJ) has wide discretion to grant or deny such a motion, and you take additional risks by rescheduling a hearing.

(We are assuming that the reason you can't attend has to do with scheduling conflicts, not a change in where you live. If, however, you have moved to a different part of the United States, it might be possible to ask for what's called a change of venue.)

You will most likely want to get a lawyer's help with this (as with the rest of the removal proceedings). The attorney will be familiar with the procedures in the Immigration Court Practice Manual, which must be closely followed.

When the Immigration Judge May Grant a Continuance

IJs decide whether to grant motions for continuance based on the unique facts of each case. You (or more likely your lawyer) must submit a written motion, explaining in detail why you need to reschedule the hearing.

It is helpful to attach supporting documents explaining why you have "good cause" to ask for a continuance—such as a medical note from your doctor saying that you are scheduled for an urgent procedure. You are more likely to be granted a continuance if you can demonstrate that you (or your immediate family members) would face some great hardship if you had to attend the hearing as scheduled.

For example, if you (or your immediate family member) must undergo surgery on the day of the scheduled hearing, you are likely to be granted a reschedule. Or if you only just lined up an attorney, the attorney might ask for more time in order to prepare.

On the other hand, simply being scheduled to go to work on the day of your hearing is not likely to be enough to obtain a continuance.

Also, IJs are more likely to grant your request if this is the first time you are asking to reschedule.

Timing of Filing a Motion for a Continuance

File the motion for a continuance as soon as possible before your scheduled hearing date. In your motion, feel free to suggest some reschedule dates you would prefer. The IJ, of course, has discretion to choose any date to reschedule your hearing to.

Make sure to follow all procedures, deadlines, and filing requirements of your specific IJ, and to serve (send a copy of) your motion for continuance on the government trial attorney, as well.

If the Judge Hasn't Ruled on Your Motion by the Hearing Date

You must attend your removal hearing if your motion for continuance is still pending (undecided) when that date arrives. In other words, unless you receive an order granting your motion for continuance, you must personally attend your removal hearing as scheduled. If you do not, the IJ can determine the outcome of your case in absentia (without your presence at the hearing).

Because you are unable to present your case during a hearing held in absentia, the IJ is likely to order you removed. Such an order cannot be appealed, unlike orders entered after a hearing in which you do appear. (You can file a motion to reopen such a decision, but those are very difficult to win.)

Make sure to arrive at your hearing on time. Plan ahead, and give yourself adequate time to find parking and to go through the security screening. If you are late to your removal hearing, the IJ may have already ordered you removed in absentia by the time you arrive.

If Your Continuance Motion Is Granted

If your rescheduling request is granted, you will receive an order granting your motion to continue. Typically, rescheduled hearing dates are set within a month or so after the original hearing date. However, IJs are very busy, and might not set a reschedule date until many months after the original hearing date.

Special Advice for Asylum Applicants

If you reschedule your asylum hearing, there's a negative side effect. Making this request will stop the clock on your work permit eligibility until the rescheduled hearing date. That is, the 150-day period (counted from the date when you filed your asylum application) that must pass before you are eligible to apply for a work permit will be delayed. For more information, see When Can Asylum Applicants Get a Work Permit?.

Getting Legal Help

If you are in removal proceedings and wish to avoid deportation, it is absolutely in your interest to contact an licensed, competent, and experienced immigration attorney as soon as possible. The attorney can analyze your case, confirm or determine the defenses that you could put forward, gather documents and paperwork, draft legal arguments and motions (such as a motion for continuance) on your behalf, prepare any witnesses, and appear with you in immigration court for your hearings.

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