The Board of Immigration Appeals has clarified what counts as “exceptional circumstances” to reopen a removal order entered when an alien failed to appear in immigration court. In Matter of S-L-H- and L-B-L-, the BIA reopened removal proceedings and effectively equated getting stuck in traffic with “serious illness” or the death of your spouse or child as grounds for excusing a failure to appear.
What changed
The respondents—a mother and son from Guatemala who entered unlawfully and applied for asylum—had a hearing scheduled for March 6, 2019, after the mother appeared for a merits hearing on September 8, 2017 that did not complete.
Neither respondent appeared at the March 6, 2019 hearing, so the immigration judge ordered them removed in absentia, but the mother actually did show up at court 40 minutes late because there was snow that day and several traffic accidents along the route.
Five days later, the respondents filed a motion to reopen under INA § 240(b)(5)(C), which allows the court to rescind an in absentia order of removal within 180 days “if the alien demonstrates that the failure to appear was because of exceptional circumstances”.
The BIA “clarified” prior precedent to reopen the case, explaining that traffic is actually a sufficient excuse for a failure to appear, except any future respondent will have to submit “affidavits, traffic and weather reports … verification of the alien’s arrival time at the courtroom, and other documentation verifying the cause of the late arrival”.
Why it matters
This decision materially changes the legal standard for motions to reopen in absentia removal orders. Previously, the bar for “exceptional circumstances” was narrower—understood to cover serious illness, death in the family, and similar compelling personal emergencies. Congress did not want to include “less compelling circumstances” like “snowstorms” and “traffic” in the list of reasons why an alien respondent might be given a pass for failing to show up for court because if they did, cases would be delayed forever.
By opening the door to traffic and weather as potential exceptional circumstances, the BIA has created new litigation opportunities for respondents facing in absentia orders. However, the burden is substantial: you must present objective, contemporaneous evidence—not just a claim that you were stuck in traffic or it was snowing. The BIA’s framework requires affidavits, weather reports, traffic records, time-stamped proof of arrival, and similar documentation to prove the circumstances were truly exceptional.
For practitioners, this means that a client who missed a hearing due to unavoidable transportation delays may have grounds to move to reopen—but only with solid evidentiary support. Without documentary proof of the traffic or weather conditions, the motion will fail.
Way forward
If you have a client in an in absentia removal order who missed a hearing due to traffic, weather, or similar circumstances:
-
Gather objective evidence immediately. Collect contemporaneous weather reports for the hearing date, traffic incident reports or news coverage, photos or screenshots from traffic apps showing conditions that day, and affidavits from anyone who can corroborate the delay.
-
Establish the client’s timeline. Get a detailed affidavit from your client explaining when they left, what route they took, what obstacles they encountered, and what time they arrived at the courthouse. Include any contemporaneous communications (texts, calls, emails) that show when they were en route.
-
File within 180 days. The motion must be filed within 180 days of the in absentia order, or you lose the right under § 240(b)(5)(C).
-
Consult local case law. Federal circuit courts may have interpreted § 240(b)(5)(C) differently; verify the standard in your circuit before filing.
Disclaimer
This article is provided for informational purposes only and does not constitute legal advice. The information here is based on a published BIA decision, but agency policy and legal interpretations can change without notice. You should consult with a licensed immigration attorney to evaluate your specific situation and verify the current state of the law before filing any motion. Always review the primary source document linked above and any subsequent case law in your circuit.