8 U.S.C. § 1229a : US Code - Section 1229A: Removal proceedings

Search 8 U.S.C. § 1229a : US Code - Section 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) Applications for relief from removal
(A) In general
An alien applying for relief or protection from removal has
the burden of proof to establish that the alien - 
(i) satisfies the applicable eligibility requirements; and
(ii) with respect to any form of relief that is granted in
the exercise of discretion, that the alien merits a favorable
exercise of discretion.
(B) Sustaining burden
The applicant must comply with the applicable requirements to
submit information or documentation in support of the
applicant's application for relief or protection as provided by
law or by regulation or in the instructions for the application
form. In evaluating the testimony of the applicant or other
witness in support of the application, the immigration judge
will determine whether or not the testimony is credible, is
persuasive, and refers to specific facts sufficient to
demonstrate that the applicant has satisfied the applicant's
burden of proof. In determining whether the applicant has met
such burden, the immigration judge shall weigh the credible
testimony along with other evidence of record. Where the
immigration judge determines that the applicant should provide
evidence which corroborates otherwise credible testimony, such
evidence must be provided unless the applicant demonstrates
that the applicant does not have the evidence and cannot
reasonably obtain the evidence.
(C) Credibility determination
Considering the totality of the circumstances, and all
relevant factors, the immigration judge may base a credibility
determination on the demeanor, candor, or responsiveness of the
applicant or witness, the inherent plausibility of the
applicant's or witness's account, the consistency between the
applicant's or witness's written and oral statements (whenever
made and whether or not under oath, and considering the
circumstances under which the statements were made), the
internal consistency of each such statement, the consistency of
such statements with other evidence of record (including the
reports of the Department of State on country conditions), and
any inaccuracies or falsehoods in such statements, without
regard to whether an inconsistency, inaccuracy, or falsehood
goes to the heart of the applicant's claim, or any other
relevant factor. There is no presumption of credibility,
however, if no adverse credibility determination is explicitly
made, the applicant or witness shall have a rebuttable
presumption of credibility on appeal.
(5) 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.
(6) 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.
(7) Motions to reopen
(A) In general
An alien may file one motion to reopen proceedings under this
section, except that this limitation shall not apply so as to
prevent the filing of one motion to reopen described in
subparagraph (C)(iv).
(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.
(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, children, and parents
Any limitation under this section on the deadlines for
filing such motions shall 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,,(!1) section 1229b(b) of this title, or section
1254(a)(3) of this title (as in effect on March 31, 1997);
(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;
(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; and
(IV) if the alien is physically present in the United
States at the time of filing the motion.
The filing of a motion to reopen under this clause shall only
stay the removal of a qualified alien (as defined in section
1641(c)(1)(B) of this title (!2) pending the final
disposition of the motion, including exhaustion of all
appeals if the motion establishes that the alien is a
qualified alien.
(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 battery or extreme cruelty to the alien or
any child or parent of the alien, 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.