The Board of Immigration Appeals issued a significant precedential decision in December 2025 clarifying the authority of immigration judges to terminate removal proceedings when both the respondent and the government fail to appear. Where neither the respondent nor the Department of Homeland Security (“DHS”) appears at the hearing and DHS does not present evidence of removability in advance of the hearing, the Immigration Judge does not err in terminating proceedings without prejudice. The decision resolves a disputed question about DHS’s obligation to secure continuances when its counsel and the respondent both no-show.
What changed
In the underlying case, respondents were charged with inadmissibility for being present in the United States without admission or parole. Notices to appear were properly served, specifying the hearing details, but at the appointed time, neither the respondents nor DHS representatives attended. Importantly, DHS had not filed any evidence to establish alienage prior to the hearing. The immigration judge terminated the removal proceedings “without prejudice”, that is without dispositively finding that the respondent wasn’t removable.
DHS appealed, arguing that regulations required a continuance to allow another chance to present evidence. The BIA dismissed the appeal, holding that termination is appropriate in such instances.
The BIA’s holding turns on the text of 8 C.F.R. § 1003.26 and § 1240.10(d). The BIA emphasized that DHS is not relieved of its burden to establish removability under these circumstances. The Board found that the regulation requiring assignment of DHS counsel—8 C.F.R. § 1240.10(d)—applies only when a respondent appears and contests removability. When both parties no-show and DHS has not pre-filed evidence of alienage, that regulation does not obligate the immigration judge to continue the case.
Why it matters
This decision narrows DHS’s procedural lifelines in cases where DHS counsel fails to appear in immigration court. Practitioners defending respondents should recognize that:
- DHS bears the burden of proof on alienage and removability, even when neither party shows up. Failing to pre-file evidence (e.g., an I-213 or other proof of removability) can result in termination without prejudice.
- Termination without prejudice does not bar re-filing. DHS can attempt to re-open or re-charge the respondent, though each no-show episode signals administrative dysfunction.
- Continuances are not automatic. DHS cannot rely on a blanket entitlement to reset hearings under 8 C.F.R. § 1240.10(d) when the respondent doesn’t appear and challenge removability.
For immigration judges, this decision clarifies that termination (rather than a forced continuance) is a lawful remedy when the government abandons a hearing without pre-filing evidence—reducing incentives for strategic no-shows and underscoring that court time is finite.
Way forward
- For defense practitioners: If you represent a respondent scheduled for a hearing, confirm that DHS has pre-filed evidence of removability. A no-file by DHS, combined with respondent absence, may result in termination without prejudice—a procedural reset, not a dismissal on the merits.
- For respondents: Understand that failure to appear does not end the case (termination is without prejudice), but it does trigger potential re-filing. Remain in communication with your attorney and immigration court about all hearing dates.
- For immigration judges and DHS counsel: DHS has the burden to establish alienage when a respondent has been charged with inadmissibility. Pre-file evidence (Form I-213 or equivalent) before the hearing to preserve your right to proceed, even if you or the respondent no-show.
- Consult the full BIA opinion (Matter of Tepec-Garcia, 29 I&N Dec. 371, BIA 2025) for the Board’s complete statutory and regulatory analysis.
Disclaimer
Fola Editorial is a software platform, not a law firm, and this article does not constitute legal advice. Immigration law is complex and fact-dependent. Before relying on this summary, consult a licensed immigration attorney in your jurisdiction and verify against the primary source material linked above. BIA precedent may be appealed or modified by federal court review or by future Attorney General decisions. Policy and case law change without notice.