The Board of Immigration Appeals has clarified exactly how much weight a Form I-213 evidence of alienage filing carries when neither the respondent nor the Department of Homeland Security (DHS) shows up to a scheduled hearing. In Matter of Bolivar-Bolivar, 29 I&N Dec. 548 (BIA 2026), decided April 10, 2026, the Board held that an Immigration Judge errs by terminating removal proceedings under these circumstances if DHS already placed evidence of alienage in the record before the hearing. Instead, the judge must proceed with an in absentia hearing. For practitioners and respondents alike, this decision sharpens the line between cases that can be closed out and cases that must move forward toward a removal order, even without anyone physically present in the courtroom.
Background and Facts
Procedural History
DHS served the respondent, John Bolivar-Bolivar, with a notice to appear on November 14, 2022, cha`rging him with inadmissibility under section 212(a)(6)(A)(i) of the Immigration and Nationality Act for being present in the United States without admission or parole. DHS filed the notice to appear with the Atlanta Immigration Court, which initiated proceedings. The notice listed an initial hearing date of February 1, 2024, at 8:30 a.m.
On January 25, 2024, DHS filed a Form I-213, Record of Deportable/Inadmissible Alien, as evidence of the respondent’s alienage. Neither the respondent nor DHS appeared at the February 1, 2024 hearing, even though both had received notice of it. The Immigration Judge terminated proceedings without prejudice, reasoning that DHS had not submitted evidence of removability before the hearing or filed a motion explaining how it wanted to proceed. DHS appealed that termination order to the Board. The respondent, proceeding pro se, did not file a response to the appeal.
Operative Facts
At its core, this case turns on a narrow but consequential gap between what the Immigration Judge believed the record contained and what it actually contained. Both parties were absent from the courtroom on the hearing date. Critically, however, DHS had already submitted a Form I-213 nine days earlier, placing direct documentary evidence of the respondent’s alienage before the court in advance. The Immigration Judge’s termination order overlooked that filing, treating the case as though no evidence of removability existed in the record at all.
Legal Issue
Did the Immigration Judge err in terminating removal proceedings, rather than conducting an in absentia hearing, where the respondent was charged with being present in the United States without admission or parole, neither party appeared at the scheduled hearing, and the record already contained a Form I-213 establishing evidence of alienage?
Legal Authority and Binding Status
The governing framework comes directly from section 240(b)(5)(A) of the INA, 8 U.S.C. § 1229a(b)(5)(A), and its regulatory counterpart, 8 C.F.R. § 1003.26(c). Together, they require an Immigration Judge to order a respondent removed in absentia when DHS establishes, by clear, unequivocal, and convincing evidence, both that the respondent received proper notice of the hearing and that he or she is removable. This is a mandatory directive, not a discretionary option, once the evidentiary threshold is met.
As a precedent decision of the Board of Immigration Appeals, Matter of Bolivar-Bolivar is binding on Immigration Judges nationwide. The Board grounded its reasoning in its own recent decision, Matter of Tepec-Garcia, 29 I&N Dec. 371 (BIA 2025), which held that termination without prejudice is appropriate only where DHS presents no evidence of removability before the hearing. Bolivar-Bolivar does not overturn that holding; it distinguishes it. The Board also relied on Matter of Mariscal-Hernandez, 28 I&N Dec. 666 (BIA 2022), confirming that a Form I-213 is probative of a respondent’s alienage, and on Matter of Mercado-Martinez, 29 I&N Dec. 529 (BIA 2026), which recognizes the Form I-213 as presumptively reliable. Under 8 C.F.R. § 1240.8(c), once alienage is established, the burden of proof shifts to the respondent to demonstrate that he or she is not inadmissible as charged.
Court’s Reasoning
The Board’s analysis hinges on a single factual distinction from its prior holding in Tepec-Garcia. There, both the respondent and DHS missed the hearing, and DHS had filed nothing showing removability beforehand, so termination without prejudice was a permissible outcome. Here, the Board found that distinction absent: DHS had filed a Form I-213 evidence of alienage with the Immigration Court more than a week before the scheduled hearing.
Because a Form I-213 is presumptively reliable and probative of alienage, the Board reasoned that the Immigration Judge should have evaluated whether that single document was sufficient to establish alienage and trigger the burden shift under 8 C.F.R. § 1240.8(c), rather than treating the case as if no evidence existed at all. The Board also rejected the secondary justification offered by the Immigration Judge — that DHS had not filed a motion specifying how it wanted to proceed. The Board explained that the respondent’s own failure to appear independently triggered the mandatory in absentia framework under INA § 240(b)(5)(A) and 8 C.F.R. § 1003.26, regardless of whether DHS filed any such motion. In a footnote, the Board noted that alienage can also be established through other record evidence, such as an affirmatively filed Form I-589 containing an admission of alienage, though that alternative path was not at issue in this case.
Holding and Key Takeaways
The Board held that where a respondent is charged with being present in the United States without admission or parole, neither the respondent nor DHS appears at the scheduled hearing, and the record already contains evidence of alienage, the Immigration Judge errs in terminating proceedings rather than conducting an in absentia hearing. The Board sustained DHS’s appeal, vacated the Immigration Judge’s February 1, 2024 termination order, reinstated removal proceedings, and remanded the case for further proceedings, including a determination of whether the respondent received proper notice and whether removability was established.
This holding is narrow in its trigger — it applies specifically where DHS has placed qualifying evidence of alienage, such as a Form I-213, in the record before the missed hearing — but broad in its consequence for any case meeting that fact pattern. Respondents who fail to appear after DHS has filed evidence of alienage now face a materially higher likelihood of an in absentia removal order, rather than a more forgiving termination without prejudice that would have allowed the case to be refiled later.
Practical Immigration Implications
For respondents, the practical message is direct: missing a hearing no longer offers the safety net of termination once DHS has filed a Form I-213 or comparable evidence of alienage. The case will instead proceed toward an in absentia removal order if the Immigration Judge finds that notice and removability were properly established. Anyone who has missed a hearing date, or who is at risk of missing one, should treat that exposure as immediate and act quickly to address it, including by seeking to file a motion to reopen where appropriate.
For DHS trial attorneys, the decision reinforces the value of filing a Form I-213 or other alienage evidence with the Immigration Court well before any scheduled hearing, even when appearance by counsel is uncertain. Doing so preserves the path to an in absentia removal order rather than risking termination and the need to reinitiate proceedings.
For Immigration Judges, Bolivar-Bolivar requires a more careful review of the full record before terminating a case on nonappearance grounds. A judge cannot rely solely on the absence of a DHS motion specifying next steps; the judge must independently assess whether the record already contains sufficient evidence to support an in absentia removal order under INA § 240(b)(5)(A). Open questions remain regarding how much weight a Form I-213 alone carries when the respondent later moves to reopen and contest alienage, since the Board’s footnote leaves open additional paths — such as Form I-589 admissions — without resolving every scenario where the documentary record is thinner.
How Immigration Professional Association Can Assist
Cases involving in absentia removal orders move quickly, and the consequences of an unanswered Form I-213 evidence of alienage filing can be severe. Immigration Professional Association regularly handles Withholding of Removal matters and removal defense strategy for clients who have missed a hearing or who are facing an upcoming one. Our team has also tracked the Board’s recent body of in absentia precedent, including the Absentia removal holding in Matter of Lopez-Orellana and the in absentia removal order standard from Matter of Laurent Castro, both of which inform how Immigration Judges evaluate notice and removability going forward.
Where alienage itself is contested, our review of the Form I-213 reliability standard set out in Matter of Mercado-Martinez can help clients understand what it takes to rebut a presumptively reliable document. For respondents whose exposure arises from a pending Form I-589 application for asylum and withholding of removal, our asylum practice can assess whether that filing affects the alienage analysis described in this decision.
Matter of Bolivar-Bolivar confirms that documentary evidence filed before a missed hearing can determine whether a case is terminated or sent toward an in absentia removal order. Anyone who has missed, or expects to miss, an immigration court hearing should not wait to assess their exposure. Contact Immigration Professional Association to discuss your case.
