
From the U.S. Code Online via GPO Access
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[Laws in effect as of January 2, 2001]
[Document not affected by Public Laws enacted between
  January 2, 2001 and January 28, 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.)


                               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.


    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 28 section 1821.
