§ 1229a. — Removal proceedings.
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From the U.S. Code Online via GPO Access
[wais.access.gpo.gov]
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 8USC1229a]
TITLE 8--ALIENS AND NATIONALITY
CHAPTER 12--IMMIGRATION AND NATIONALITY
SUBCHAPTER II--IMMIGRATION
Part IV--Inspection, Apprehension, Examination, Exclusion, and Removal
Sec. 1229a. Removal proceedings
(a) Proceeding
(1) In general
An immigration judge shall conduct proceedings for deciding the
inadmissibility or deportability of an alien.
(2) Charges
An alien placed in proceedings under this section may be charged
with any applicable ground of inadmissibility under section 1182(a)
of this title or any applicable ground of deportability under
section 1227(a) of this title.
(3) Exclusive procedures
Unless otherwise specified in this chapter, a proceeding under
this section shall be the sole and exclusive procedure for
determining whether an alien may be admitted to the United States
or, if the alien has been so admitted, removed from the United
States. Nothing in this section shall affect proceedings conducted
pursuant to section 1228 of this title.
(b) Conduct of proceeding
(1) Authority of immigration judge
The immigration judge shall administer oaths, receive evidence,
and interrogate, examine, and cross-examine the alien and any
witnesses. The immigration judge may issue subpoenas for the
attendance of witnesses and presentation of evidence. The
immigration judge shall have authority (under regulations prescribed
by the Attorney General) to sanction by civil money penalty any
action (or inaction) in contempt of the judge's proper exercise of
authority under this chapter.
(2) Form of proceeding
(A) In general
The proceeding may take place--
(i) in person,
(ii) where agreed to by the parties, in the absence of
the alien,
(iii) through video conference, or
(iv) subject to subparagraph (B), through telephone
conference.
(B) Consent required in certain cases
An evidentiary hearing on the merits may only be conducted
through a telephone conference with the consent of the alien
involved after the alien has been advised of the right to
proceed in person or through video conference.
(3) Presence of alien
If it is impracticable by reason of an alien's mental
incompetency for the alien to be present at the proceeding, the
Attorney General shall prescribe safeguards to protect the rights
and privileges of the alien.
(4) Alien's rights in proceeding
In proceedings under this section, under regulations of the
Attorney General--
(A) the alien shall have the privilege of being represented,
at no expense to the Government, by counsel of the alien's
choosing who is authorized to practice in such proceedings,
(B) the alien shall have a reasonable opportunity to examine
the evidence against the alien, to present evidence on the
alien's own behalf, and to cross-examine witnesses presented by
the Government but these rights shall not entitle the alien to
examine such national security information as the Government may
proffer in opposition to the alien's admission to the United
States or to an application by the alien for discretionary
relief under this chapter, and
(C) a complete record shall be kept of all testimony and
evidence produced at the proceeding.
(5) Consequences of failure to appear
(A) In general
Any alien who, after written notice required under paragraph
(1) or (2) of section 1229(a) of this title has been provided to
the alien or the alien's counsel of record, does not attend a
proceeding under this section, shall be ordered removed in
absentia if the Service establishes by clear, unequivocal, and
convincing evidence that the written notice was so provided and
that the alien is removable (as defined in subsection (e)(2) of
this section). The written notice by the Attorney General shall
be considered sufficient for purposes of this subparagraph if
provided at the most recent address provided under section
1229(a)(1)(F) of this title.
(B) No notice if failure to provide address information
No written notice shall be required under subparagraph (A)
if the alien has failed to provide the address required under
section 1229(a)(1)(F) of this title.
(C) Rescission of order
Such an order may be rescinded only--
(i) upon a motion to reopen filed within 180 days after
the date of the order of removal if the alien demonstrates
that the failure to appear was because of exceptional
circumstances (as defined in subsection (e)(1) of this
section), or
(ii) upon a motion to reopen filed at any time if the
alien demonstrates that the alien did not receive notice in
accordance with paragraph (1) or (2) of section 1229(a) of
this title or the alien demonstrates that the alien was in
Federal or State custody and the failure to appear was
through no fault of the alien.
The filing of the motion to reopen described in clause (i) or
(ii) shall stay the removal of the alien pending disposition of
the motion by the immigration judge.
(D) Effect on judicial review
Any petition for review under section 1252 of this title of
an order entered in absentia under this paragraph shall (except
in cases described in section 1252(b)(5) of this title) be
confined to (i) the validity of the notice provided to the
alien, (ii) the reasons for the alien's not attending the
proceeding, and (iii) whether or not the alien is removable.
(E) Additional application to certain aliens in contiguous
territory
The preceding provisions of this paragraph shall apply to
all aliens placed in proceedings under this section, including
any alien who remains in a contiguous foreign territory pursuant
to section 1225(b)(2)(C) of this title.
(6) Treatment of frivolous behavior
The Attorney General shall, by regulation--
(A) define in a proceeding before an immigration judge or
before an appellate administrative body under this subchapter,
frivolous behavior for which attorneys may be sanctioned,
(B) specify the circumstances under which an administrative
appeal of a decision or ruling will be considered frivolous and
will be summarily dismissed, and
(C) impose appropriate sanctions (which may include
suspension and disbarment) in the case of frivolous behavior.
Nothing in this paragraph shall be construed as limiting the
authority of the Attorney General to take actions with respect to
inappropriate behavior.
(7) Limitation on discretionary relief for failure to appear
Any alien against whom a final order of removal is entered in
absentia under this subsection and who, at the time of the notice
described in paragraph (1) or (2) of section 1229(a) of this title,
was provided oral notice, either in the alien's native language or
in another language the alien understands, of the time and place of
the proceedings and of the consequences under this paragraph of
failing, other than because of exceptional circumstances (as defined
in subsection (e)(1) of this section) to attend a proceeding under
this section, shall not be eligible for relief under section 1229b,
1229c, 1255, 1258, or 1259 of this title for a period of 10 years
after the date of the entry of the final order of removal.
(c) Decision and burden of proof
(1) Decision
(A) In general
At the conclusion of the proceeding the immigration judge
shall decide whether an alien is removable from the United
States. The determination of the immigration judge shall be
based only on the evidence produced at the hearing.
(B) Certain medical decisions
If a medical officer or civil surgeon or board of medical
officers has certified under section 1222(b) of this title that
an alien has a disease, illness, or addiction which would make
the alien inadmissible under paragraph (1) of section 1182(a) of
this title, the decision of the immigration judge shall be based
solely upon such certification.
(2) Burden on alien
In the proceeding the alien has the burden of establishing--
(A) if the alien is an applicant for admission, that the
alien is clearly and beyond doubt entitled to be admitted and is
not inadmissible under section 1182 of this title; or
(B) by clear and convincing evidence, that the alien is
lawfully present in the United States pursuant to a prior
admission.
In meeting the burden of proof under subparagraph (B), the alien
shall have access to the alien's visa or other entry document, if
any, and any other records and documents, not considered by the
Attorney General to be confidential, pertaining to the alien's
admission or presence in the United States.
(3) Burden on service in cases of deportable aliens
(A) In general
In the proceeding the Service has the burden of establishing
by clear and convincing evidence that, in the case of an alien
who has been admitted to the United States, the alien is
deportable. No decision on deportability shall be valid unless
it is based upon reasonable, substantial, and probative
evidence.
(B) Proof of convictions
In any proceeding under this chapter, any of the following
documents or records (or a certified copy of such an official
document or record) shall constitute proof of a criminal
conviction:
(i) An official record of judgment and conviction.
(ii) An official record of plea, verdict, and sentence.
(iii) A docket entry from court records that indicates
the existence of the conviction.
(iv) Official minutes of a court proceeding or a
transcript of a court hearing in which the court takes
notice of the existence of the conviction.
(v) An abstract of a record of conviction prepared by
the court in which the conviction was entered, or by a State
official associated with the State's repository of criminal
justice records, that indicates the charge or section of law
violated, the disposition of the case, the existence and
date of conviction, and the sentence.
(vi) Any document or record prepared by, or under the
direction of, the court in which the conviction was entered
that indicates the existence of a conviction.
(vii) Any document or record attesting to the conviction
that is maintained by an official of a State or Federal
penal institution, which is the basis for that institution's
authority to assume custody of the individual named in the
record.
(C) Electronic records
In any proceeding under this chapter, any record of
conviction or abstract that has been submitted by electronic
means to the Service from a State or court shall be admissible
as evidence to prove a criminal conviction if it is--
(i) certified by a State official associated with the
State's repository of criminal justice records as an
official record from its repository or by a court official
from the court in which the conviction was entered as an
official record from its repository, and
(ii) certified in writing by a Service official as
having been received electronically from the State's record
repository or the court's record repository.
A certification under clause (i) may be by means of a computer-
generated signature and statement of authenticity.
(4) Notice
If the immigration judge decides that the alien is removable and
orders the alien to be removed, the judge shall inform the alien of
the right to appeal that decision and of the consequences for
failure to depart under the order of removal, including civil and
criminal penalties.
(5) Motions to reconsider
(A) In general
The alien may file one motion to reconsider a decision that
the alien is removable from the United States.
(B) Deadline
The motion must be filed within 30 days of the date of entry
of a final administrative order of removal.
(C) Contents
The motion shall specify the errors of law or fact in the
previous order and shall be supported by pertinent authority.
(6) Motions to reopen
(A) In general
An alien may file one motion to reopen proceedings under
this section.
(B) Contents
The motion to reopen shall state the new facts that will be
proven at a hearing to be held if the motion is granted, and
shall be supported by affidavits or other evidentiary material.
(C) Deadline
(i) In general
Except as provided in this subparagraph, the motion to
reopen shall be filed within 90 days of the date of entry of
a final administrative order of removal.
(ii) Asylum
There is no time limit on the filing of a motion to
reopen if the basis of the motion is to apply for relief
under sections \1\ 1158 or 1231(b)(3) of this title and is
based on changed country conditions arising in the country
of nationality or the country to which removal has been
ordered, if such evidence is material and was not available
and would not have been discovered or presented at the
previous proceeding.
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\1\ So in original.
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(iii) Failure to appear
The filing of a motion to reopen an order entered
pursuant to subsection (b)(5) of this section is subject to
the deadline specified in subparagraph (C) of such
subsection.
(iv) Special rule for battered spouses and children
The deadline specified in subsection (b)(5)(C) of this
section for filing a motion to reopen does not apply--
(I) if the basis for the motion is to apply for
relief under clause (iii) or (iv) of section
1154(a)(1)(A) of this title, clause (ii) or (iii) of
section 1154(a)(1)(B) of this title, or section
1229b(b)(2) of this title;
(II) if the motion is accompanied by a cancellation
of removal application to be filed with the Attorney
General or by a copy of the self-petition that has been
or will be filed with the Immigration and Naturalization
Service upon the granting of the motion to reopen; and
(III) if the motion to reopen is filed within 1 year
of the entry of the final order of removal, except that
the Attorney General may, in the Attorney General's
discretion, waive this time limitation in the case of an
alien who demonstrates extraordinary circumstances or
extreme hardship to the alien's child.
(d) Stipulated removal
The Attorney General shall provide by regulation for the entry by an
immigration judge of an order of removal stipulated to by the alien (or
the alien's representative) and the Service. A stipulated order shall
constitute a conclusive determination of the alien's removability from
the United States.
(e) Definitions
In this section and section 1229b of this title:
(1) Exceptional circumstances
The term ``exceptional circumstances'' refers to exceptional
circumstances (such as serious illness of the alien or serious
illness or death of the spouse, child, or parent of the alien, but
not including less compelling circumstances) beyond the control of
the alien.
(2) Removable
The term ``removable'' means--
(A) in the case of an alien not admitted to the United
States, that the alien is inadmissible under section 1182 of
this title, or
(B) in the case of an alien admitted to the United States,
that the alien is deportable under section 1227 of this title.
(June 27, 1952, ch. 477, title II, ch. 4, Sec. 240, as added Pub. L.
104-208, div. C, title III, Sec. 304(a)(3), Sept. 30, 1996, 110 Stat.
3009-589; amended Pub. L. 106-386, div. B, title V, Sec. 1506(c)(1)(A),
Oct. 28, 2000, 114 Stat. 1528.)
Prior Provisions
A prior section 240 of act June 27, 1952, was renumbered section
240C, and is classified to section 1230 of this title.
Amendments
2000--Subsec. (c)(6)(C)(iv). Pub. L. 106-386 added cl. (iv).
Effective Date of 2000 Amendment
Pub. L. 106-386, div. B, title V, Sec. 1506(c)(1)(B), Oct. 28, 2000,
114 Stat. 1528, provided that: ``The amendment made by subparagraph (A)
[amending this section] shall take effect as if included in the
enactment of section 304 of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (8 U.S.C. 1229-1229c) [Pub. L. 104-208].''
Effective Date
Section effective, with certain transitional provisions, on the
first day of the first month beginning more than 180 days after Sept.
30, 1996, see section 309 of Pub. L. 104-208, set out as an Effective
Date of 1996 Amendments note under section 1101 of this title.
Subsec. (c)(3)(B), (C) of this section applicable to proving
convictions entered before, on, or after Sept. 30, 1996, see section
322(c) of Pub. L. 104-208, set out as an Effective Date of 1996
Amendments note under section 1101 of this title.
Abolition of Immigration and Naturalization Service and Transfer of
Functions
For abolition of Immigration and Naturalization Service, transfer of
functions, and treatment of related references, see note set out under
section 1551 of this title.
Elimination of Time Limitations on Motions To Reopen Deportation
Proceedings for Victims of Domestic Violence
Pub. L. 106-386, div. B, title V, Sec. 1506(c)(2), Oct. 28, 2000,
114 Stat. 1528, provided that:
``(A) In general.--Notwithstanding any limitation imposed by law on
motions to reopen or rescind deportation proceedings under the
Immigration and Nationality Act [8 U.S.C. 1101 et seq.] (as in effect
before the title III-A effective date in section 309 of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 [Pub. L.
104-208] (8 U.S.C. 1101 note)), there is no time limit on the filing of
a motion to reopen such proceedings, and the deadline specified in
section 242B(c)(3) of the Immigration and Nationality Act (as so in
effect) (8 U.S.C. 1252b(c)(3)) does not apply--
``(i) if the basis of the motion is to apply for relief under
clause (iii) or (iv) of section 204(a)(1)(A) of the Immigration and
Nationality Act (8 U.S.C. 1154(a)(1)(A)), clause (ii) or (iii) of
section 204(a)(1)(B) of such Act (8 U.S.C. 1154(a)(1)(B)), or
section 244(a)(3) of such Act (as so in effect) (8 U.S.C.
1254(a)(3)); and
``(ii) if the motion is accompanied by a suspension of
deportation application to be filed with the Attorney General or by
a copy of the self-petition that will be filed with the Immigration
and Naturalization Service upon the granting of the motion to
reopen.
``(B) Applicability.--Subparagraph (A) shall apply to motions filed
by aliens who--
``(i) are, or were, in deportation proceedings under the
Immigration and Nationality Act [8 U.S.C. 1101 et seq.](as in effect
before the title III-A effective date in section 309 of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (8
U.S.C. 1101 note)); and
``(ii) have become eligible to apply for relief under clause
(iii) or (iv) of section 204(a)(1)(A) of the Immigration and
Nationality Act (8 U.S.C. 1154(a)(1)(A)), clause (ii) or (iii) of
section 204(a)(1)(B) of such Act (8 U.S.C. 1154(a)(1)(B)), or
section 244(a)(3) of such Act (as in effect before the title III-A
effective date in section 309 of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (8 U.S.C. 1101 note)) as a
result of the amendments made by--
``(I) subtitle G [Sec. 40701 et seq.] of title IV of the
Violent Crime Control and Law Enforcement Act of 1994 (Public
Law 103-322; 108 Stat. 1953 et seq.) [see Tables for
classification]; or
``(II) this title [see Short Title of 2000 Amendment note
set out under section 1101 of this title].''
References to Order of Removal Deemed To Include Order of Exclusion and
Deportation
For purposes of this chapter, any reference in law to an order of
removal is deemed to include a reference to an order of exclusion and
deportation or an order of deportation, see section 309(d)(2) of Pub. L.
104-208, set out in an Effective Date of 1996 Amendments note under
section 1101 of this title.
Section Referred to in Other Sections
This section is referred to in sections 1101, 1155, 1158, 1159,
1182, 1184, 1225, 1228, 1229, 1229c, 1231, 1252, 1256, 1282, 1357, 1368
of this title; title 18 section 4113; title 22 section 7105; title 28
section 1821.