Board of Immigration Appeals, Matter of Diji, Notice to Appear: Court Rules Missing Mail No Longer Excuse to Avoid Deportation

The Board of Immigration Appeals ruled on September 3, 2026, that immigration officials may send a Notice to Appear by regular mail to the latest address a noncitizen gave the government, even if that address predates court proceedings. The en banc decision, Matter of Diji, 30 I&N Dec. 1 (BIA 2026), overruled a precedent that had protected people who did not receive the case-opening notice.

As of October 2026, the ruling sets the Board’s approach to mailed notice, but it does not displace contrary federal appellate decisions in four circuits. It also leaves a path to seek reopening of an in absentia removal order.

The case involved a man who missed a hearing after DHS mailed notices to an address he had given U.S. Citizenship and Immigration Services. The Board dismissed his appeal after an immigration judge denied his request to reopen.

An old USCIS address can now support mailed notice

The man had overstayed a visa and provided USCIS with an address while applications were pending. USCIS denied those applications. He moved in January 2019 and did not report his new address to the government.

DHS mailed the initiating notice to his former address in April 2019, then sent several hearing notices there. He did not attend an April 2023 hearing, and an immigration judge ordered him removed in absentia.

He learned of the order in June 2025, when he attended a green card interview based on his marriage to a U.S. citizen. He said he had not received the notices and asked the judge to reopen his case. The judge refused, and the Board dismissed his appeal.

Chief appellate immigration judge Garry Malphrus wrote the Board’s opinion. It says written notice may be sufficient when mailed to the latest address the person provided, including one submitted before the initiating notice was issued. The decision concerns the address DHS may use; it does not establish that every mailed notice actually reaches its recipient.

The Board ties its rule to address-reporting duties

The ruling overturned Matter of G-Y-R-, 23 I&N Dec. 181 (BIA 2001). That precedent generally barred an in absentia order when a person had not received the initiating notice, reasoning that the person had not yet received its warning to keep an address current.

The Board said that reasoning could prevent DHS from mailing the document that starts a case because the document itself contains the address-update warning required by INA § 239(a)(1)(F). It described that result as “patently absurd” and said the older approach ran counter to Congress’ intent.

“Our holding is that, when mailing a notice to appear by regular mail, DHS can rely on the most recent address the alien has provided.”

The opinion also points to federal registration requirements. It says almost all noncitizens 14 years of age and older must register and keep DHS informed of their addresses. Under 8 C.F.R. § 265.1, those covered must report a move within 10 days, following USCIS instructions.

Malphrus wrote that respondents must correct an address listed on the notice and report later changes to the immigration court or the Board, as applicable. He said courts lack the resources to track people who move. Even if they had the resources, he reasoned, judges searching for respondents could compromise their neutrality or amount to prohibited ex parte communication that assists DHS.

Four appellate circuits retain conflicting precedent

The Board’s rule conflicts with binding precedent in the First, Seventh, Ninth and Eleventh Circuits, which have followed protections similar to the one the Board overruled. The Board cannot overturn federal appellate decisions. The conflict leaves the governing notice standard dependent, in part, on the jurisdiction where a case is heard.

The dissent argued that the older framework was workable and cited the increase in in absentia orders, from roughly 34,000 in 2016 to over 311,000 in 2025. Across the immigration courts, the monthly average exceeded 30,000 such orders in 2026.

The immigration courts operate within the Justice Department’s Executive Office for Immigration Review. The department appoints immigration judges, who do not require Senate confirmation. The Board’s opinion also invoked the Ninth Circuit’s requirement that immigration judges remain neutral, saying judges should not be tasked with tracking down respondents.

A nonreceipt motion remains possible, but evidence matters

The decision does not make every existing removal order permanent. Under 8 C.F.R. § 1003.23(b)(4)(ii), a person may move to rescind an in absentia order at any time by showing that required notice was not received, or that the person was in federal or state custody and missed court through no fault of their own.

A motion filed within 180 days of the order may seek rescission on exceptional-circumstances grounds. Filing a motion stays removal while the immigration judge considers it. The regulation permits one such motion.

When an agency properly addresses and sends a notice by regular mail under normal office procedures, the law presumes delivery. That presumption is weaker than the one for certified mail and can be challenged with evidence.

Matter of M-R-A-, 23 I&N Dec. 665 (BIA 2008), recognizes evidence that may support reopening, including the respondent’s affidavit, statements from relatives or other people with relevant knowledge, and what the respondent did after learning of the order. A sworn statement of nonreceipt does not automatically require reopening. Kozak v. Gonzales, 502 F.3d 34 (1st Cir. 2007), addresses that limit.

Address histories and hearing-date checks will shape future cases

The ruling may affect people who moved after filing a green card application, petition, work permit application or asylum application with USCIS and did not update their address. It may also affect people with older in absentia orders who planned to rely on not receiving the initiating notice.

RAICES, which assists noncitizens seeking to reopen missed-hearing cases, said it expects an increase in removals tied to improper notice. Legal representatives will consider the decision when evaluating whether a motion remains viable. The organization recommends checking hearing dates through the EOIR portal or hotline rather than relying only on mailed notices.

Andrew “Art” Arthur, a former immigration judge now with the Center for Immigration Studies, said: “This isn't 'catch me if you can'; it is 'catch me again if you can, and keep catching me until I'm deported'”.

This article provides general information and is not legal advice. Consult a qualified immigration attorney about your specific case.