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pdf§ 1229a. Removal proceedings, 8 USCA § 1229a
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Proposed Legislation
United States Code Annotated
Title 8. Aliens and Nationality (Refs & Annos)
Chapter 12. Immigration and Nationality (Refs & Annos)
Subchapter II. Immigration
Part IV. Inspection, Apprehension, Examination, Exclusion, and Removal (Refs & Annos)
8 U.S.C.A. § 1229a
§ 1229a. Removal proceedings
Effective: January 5, 2006
Currentness
(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
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§ 1229a. Removal proceedings, 8 USCA § 1229a
(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
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§ 1229a. Removal proceedings, 8 USCA § 1229a
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)). 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)), 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--
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§ 1229a. Removal proceedings, 8 USCA § 1229a
(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)) 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
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§ 1229a. Removal proceedings, 8 USCA § 1229a
(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.
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§ 1229a. Removal proceedings, 8 USCA § 1229a
(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
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§ 1229a. Removal proceedings, 8 USCA § 1229a
(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
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§ 1229a. Removal proceedings, 8 USCA § 1229a
(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) 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,, 2 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 3 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
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§ 1229a. Removal proceedings, 8 USCA § 1229a
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.
CREDIT(S)
(June 27, 1952, c. 477, Title II, ch. 4, § 240, as added Pub.L. 104-208, Div. C, Title III, § 304(a)(3), Sept. 30, 1996, 110
Stat. 3009-589; amended Pub.L. 106-386, Div. B, Title V, § 1506(c)(1)(A), Oct. 28, 2000, 114 Stat. 1528; Pub.L. 109-13,
Div. B, Title I, § 101(d), May 11, 2005, 119 Stat. 304; Pub.L. 109-162, Title VIII, §§ 813(a)(1), 825(a), Jan. 5, 2006, 119
Stat. 3057, 3063.)
Notes of Decisions (2347)
Footnotes
So in original. Probably should be “section”.
1
So in original. The second comma probably should not appear.
2
So in original. A closing parenthesis probably should appear.
3
8 U.S.C.A. § 1229a, 8 USCA § 1229a
Current through P.L. 115-231. Also includes P.L. 115-233 to 115-277 and 115-279. Title 26 current through P.L. 115-279.
End of Document
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| File Type | application/pdf |
| File Modified | 2018-12-06 |
| File Created | 2018-12-06 |