When the Government Doesn’t Show Up, But Still Wins in Immigration Court.

A Critical Analysis of  Matter of John Bolivar-Bolivar, 29 I&N 548 (BIA 2026) from the Perspective of a Former DHS Prosecutor and Immigration Litigator.

In most court systems, if the party with the burden of proof fails to appear, the case does not move forward in their favor. Immigration court is now different.

In Matter of John Bolivar-Bolivar, the Board of Immigration Appeals endorsed a framework where a removal order can and must be entered even when the Department of Homeland Security, the party charged with proving removability, fails to appear and makes no motion to proceed in absentia.

From my experience as a former DHS trial attorney, this represents a significant departure from how these cases were actually litigated in courtrooms across the country. It is not simply a procedural clarification, it is a shift that raises serious concerns about fairness, prosecutorial accountability, and the erosion of the adversarial process.

I. The Reality of Prior Practice: DHS Had an Affirmative Role

During my time as a DHS trial attorney, proceeding in absentia was never automatic. Even where a Form I-213 had already been submitted and clearly established alienage, it was still my responsibility to:

1. Appear at the hearing; and 

2. Affirmatively request that the Immigration Judge proceed in absentia.

   
   

This was not a mere formality. It reflected a core principle of adversarial litigation: the government bears the burden not only to submit evidence, but to actively move the case forward. Immigration Judges relied on that representation. The request to proceed in absentia functioned as a procedural safeguard, it confirmed that DHS stood behind its evidence and was prepared to meet its burden. Matter of Bolivar-Bolivar removes that layer entirely.

II. The Doctrinal Shift: From Advocacy to Automation

Under this decision, once evidence of alienage is in the record, the Immigration Judge must proceed in absentia, even if DHS fails to appear and makes no motion. This fundamentally alters the nature of removal proceedings. What was once an adversarial process is now, in certain cases, reduced to an automated adjudication based solely on the existence of documents in the file.

From a litigation standpoint, courts should not be placed in the position of advancing the government’s case in the absence of the government itself.

III. The Problem with Elevating Form I-213

The decision implicitly elevates Form I-213 to near-dispositive status. While I-213s are generally admissible, they were never intended to function as unchallenged, self-executing proof of removability without adversarial testing.

As a litigator, I have seen firsthand that:

• I-213s can contain inaccuracies or omissions 

• Statements may be taken under unclear circumstances 

• Language barriers can affect reliability 

  
  

Without either party present, there is no mechanism to test these issues.

IV. Due Process and Structural Fairness

When the Respondent is absent, DHS is absent, no motion is made, and no arguments are presented the proceeding becomes administrative rather than adjudicative. This raises a fundamental question:

• can a removal order issued under these circumstances truly reflect a fair process?

V. Erosion of Prosecutorial Accountability

Requiring DHS to appear and affirmatively move to proceed ensured that:

• A government attorney reviewed the case before disposition 

• The attorney stood behind the sufficiency of the evidence 

• The adversarial structure remained intact 

However, this decision removes that safeguard.

VI. The Erosion of Judicial Impartiality

An equally troubling implication of this decision is what it suggests about the role of the Immigration Judge. Traditionally, Immigration Judges are neutral arbiters. But if DHS does not appear, does not move the case, and the Judge must still proceed in absentia, the question becomes: Whose role is the Judge performing?

By requiring Judges to proceed in the government’s absence, the ruling risks placing them in the position of advancing the government’s case sua sponte. This blurs the line between adjudication and prosecution and undermines confidence in the neutrality of the tribunal.

VII. Disproportionate Impact on Vulnerable Populations

Failure to appear is often the result of:

• Fear 

• Confusion 

• Trauma 

• Misinformation 

This ruling makes the system less responsive to those realities and more punitive toward vulnerable individuals.

VIII. Practice Implications

• DHS nonappearance no longer provides any strategic benefit 

• Cases must be built before the hearing 

• I-213 challenges must be raised early 

• Clients must understand that missing court will likely result in removal 

IX. Conclusion

Matter of John Bolivar-Bolivar reflects a system increasingly focused on efficiency over process. From my experience as a former DHS attorney, requiring an affirmative request to proceed in absentia was not a technicality, t was a safeguard.

Its removal moves immigration court closer to a default-based system where paperwork alone can decide a case. That is not how an adversarial system is supposed to function. And it is not a direction we should accept without scrutiny.

Closing Note:

If you or a loved one is facing removal proceedings, especially where a hearing was missed or an in absentia order has been issued, it is critical to act quickly and strategically. At

The Viera Law Firm, PLLC, we combine litigation experience as a former DHS prosecutor with a trauma-informed approach to challenge the government’s evidence and fight for every available form of relief.