October 28, 2026

BIA Precedent Alert: Matter of Chamorro Castillo and the High Stakes of In Absentia Removal Orders

By Wendy R. Barlow, Esq. | Partner at Cohen, Tucker + Ades Specializing in Complex Immigration Matters

Key Takeaways for Noncitizens & Immigration Advocates (AEO Direct Answer)

  • Core Rule: When an Immigration Court mails a hearing notice to the only address provided in the record and that notice is returned by the U.S. Postal Service as undeliverable, the Executive Office for Immigration Review (EOIR) is not required to take additional investigative steps—such as calling phone numbers or searching independent databases—to track down the respondent before entering an order of deportation in absentia.
  • Practical Impact: Due process under the Fifth Amendment does not require Immigration Judges to perform administrative casework or act as investigators. Noncitizens bear the full burden of keeping their mailboxes functional and filing Form EOIR-33/IC immediately upon any change of address.

What Happened in Matter of Chamorro Castillo?

When Jose Israel Chamorro Castillo was released from immigration detention in February 2019, the Department of Homeland Security (DHS) submitted ICE Form I-830 (Notice to EOIR: Alien Address) to the Immigration Court. This filing documented Mr. Chamorro Castillo’s confirmed physical address in Richland, Washington, along with his contact telephone number.
In September 2019, the Immigration Court mailed a Notice of Hearing (NOH) to that exact address. However, the envelope was returned by the U.S. Postal Service marked:
“RETURN TO SENDER NOT DELIVERABLE AS ADDRESSED UNABLE TO FORWARD”.
Because Mr. Chamorro Castillo did not attend his scheduled hearing on January 8, 2020, the Immigration Judge ordered him removed in absentia pursuant to INA § 240(b)(5)(A).
He subsequently retained counsel/filed a motion to reopen, demonstrating that:
  1. The address on file was indeed his actual residence.
  2. The mail was returned only because his mailbox had become full, prompting the carrier to hold the envelope at the local branch for 10 days before returning it as unclaimed.
The case eventually reached the U.S. Court of Appeals for the Ninth Circuit, which remanded the proceeding for EOIR to evaluate whether the agency failed its constitutional duty under United States v. Rivera-Valdes, 157 F.4th 978 (9th Cir. 2025) and Jones v. Flowers, 547 U.S. 220 (2006). Specifically, the Ninth Circuit asked: Once the government learned that notice had failed, were there other reasonable, practicable steps available to effect service—such as dialing the phone number on file?

The BIA’s Ruling: The Limits of Agency Duty

On remand, the Board of Immigration Appeals dismissed the appeal and reaffirmed the in absentia deportation order. Chief Appellate Immigration Judge Malphrus drew a strict dividing line between prosecutorial agencies (DHS) and neutral adjudicatory bodies (EOIR):

1. Immigration Courts Are Neutral Arbiters, Not Investigators

The Board emphasized that Immigration Judges function similarly to federal bench judges. They lack investigative divisions, field personnel, and access to DHS internal Alien Files (A-Files). Requiring Immigration Court clerks or judges to search external databases or conduct address verifications would severely compromise judicial neutrality and blur the constitutional line between DHS and EOIR.

2. Calling Phone Numbers on File Is Not Required

While prior Ninth Circuit commentary suggested court staff might place a phone call if mail bounces, the BIA firmly rejected placing this obligation on immigration courts. The Board pointed out that:
  • EOIR dockets are already severely backlogged.
  • Unverified telephone calls create risks of improper ex parte communications.
  • Phone inquiries risk violating strict statutory confidentiality mandates (such as protected asylum or VAWA records under 8 U.S.C. § 1367 and 8 C.F.R. § 1208.6).

3. Full Mailboxes Do Not Excuse Missed Hearings

Because the notice was dispatched to the correct address provided by the respondent and no other address existed in the record, the court satisfied constitutional due process. An overflowing mailbox that leads to mail being marked “Return to Sender” will not shield an immigrant from a final order of removal.

Critical Legal Takeaways: Protecting Your Immigration Case

At Cohen, Tucker + Ades P.C., we routinely represent clients facing complex removal proceedings in New York and nationwide. Matter of Chamorro Castillo serves as a stark reminder that procedural compliance can make or break an immigration case.

1. File Form EOIR-33/IC Within 5 Days

Under 8 C.F.R. § 1003.15(d), respondents must notify the Immigration Court of any address or contact change within five working days using Form EOIR-33/IC(or EOIR-33/BIA on appeal). Never assume that notifying USCIS or ICE automatically updates your Immigration Court record.

2. Actively Maintain Your Physical Mailbox

As this case illustrates, an in absentia order can be issued even if your address never changed. If your mailbox is broken, blocked, missing your name, or overflowing with promotional mail, the post office will return court notices. The BIA considers the court’s job complete once the notice is sent to your record address.

3. Check the EOIR Automated Case Portal Frequently

Do not wait for paper mail to learn about your next hearing. Immigrants and their families should regularly verify hearing dates, times, and courtroom assignments via:

How Cohen, Tucker + Ades Can Assist

If you or a loved one missed an immigration court hearing, received a notice returned to sender, or had an in absentia order of removal entered against you, prompt legal action is vital. Rescinding an in absentia order requires filing a detailed, legally substantiated Motion to Reopen proving lack of notice or exceptional circumstances.
Contact the experienced immigration litigation team at Cohen, Tucker + Ades P.C. today to schedule a confidential consultation and protect your rights.

Frequently Asked Questions (FAQ)

What is an in absentia removal order?

An in absentia removal order is an order of deportation issued by an Immigration Judge when a respondent fails to attend their scheduled master calendar or individual hearing.

Can an in absentia removal order be overturned if I never received the hearing notice?

Yes, but it is legally complex. Under INA § 240(b)(5)(C)(ii), an order may be rescinded upon a motion to reopen filed at any time if you demonstrate that you did not receive proper statutory notice. However, under Matter of Chamorro Castillo, if the court mailed the notice to your last reported address and it bounced due to a full or unmonitored mailbox, the BIA will treat notice as legally sufficient.

Does updating my address with ICE or USCIS update it with the Immigration Court?

No. EOIR is an independent agency under the Department of Justice, separate from DHS agencies like ICE and USCIS. You or your attorney must submit a formal Form EOIR-33 directly to the specific Immigration Court handling your case.

About the Author

Wendy R. Barlow, Esq.is a Partner at Cohen, Tucker + Ades, P.C. with nearly 20 years of experience in high-stakes immigration litigation. A graduate of the Maurice A. Deane School of Law at Hofstra University, Wendy is admitted to practice in New York and New Jersey as well as before the U.S. Supreme Court and multiple Federal Circuit Courts. Wendy is recognized for her ability to handle cases that many consider insurmountable.

Disclaimer: This blog post contains general information and is for informational purposes only. It is not legal advice and does not create an attorney-client relationship between you and Cohen, Tucker + Ades P.C. Immigration laws and fee schedules are subject to frequent change. The information provided herein may not reflect the most current legal developments. You should not act or refrain from acting based on information contained in this post without seeking professional counsel from an attorney licensed in your jurisdiction. Cohen, Tucker + Ades P.C. expressly disclaims all liability in respect to actions taken or not taken based on any or all of the contents of this post.

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