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.