8 U.S.C. § 1229a — Removal proceedings

Page 314 TITLE 8—ALIENS AND NATIONALITY § 1229a paragraph (1) [amending this section] shall take effect on the date that is 30 days after the date of the enact- ment of this Act [Jan. 5, 2006] and shall apply to appre- hensions occurring on or after such date.’’ Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective, with certain transitional provi- sions, 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. 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. CONSIDERATION OF MILITARY SERVICE IN REMOVAL DETERMINATIONS Pub. L. 116–92, div. A, title V, § 570B(b), Dec. 20, 2019, 133 Stat. 1399, provided that: ‘‘(1) IN GENERAL.—With regards to an individual, an immigration officer shall take into consideration evi- dence of military service by that individual in deter- mining whether— ‘‘(A) to issue to that individual a notice to appear in removal proceedings, an administrative order of removal, or a reinstatement of a final removal order; and ‘‘(B) to execute a final order of removal regarding that individual. ‘‘(2) DEFINITIONS.—In this subsection: ‘‘(A) The term ‘evidence of service’ means evidence that an individual served as a member of the Armed Forces, and the characterization of each period of service of that individual in the Armed Forces. ‘‘(B) The term ‘immigration officer’ has the mean- ing given that term in section 101 of the Immigration and Nationality Act (8 U.S.C. 1101 et seq.).’’ § 1229a. Removal proceedings (a) Proceeding (1) In general An immigration judge shall conduct pro- ceedings 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 de- portability 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 ad- mitted, removed from the United States. Nothing in this section shall affect pro- ceedings 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, ex- amine, 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 sanc- tion by civil money penalty any action (or in- action) in contempt of the judge’s proper exer- cise 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 con- ference with the consent of the alien in- volved 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 Gen- eral shall prescribe safeguards to protect the rights and privileges of the alien. (4) Alien’s rights in proceeding In proceedings under this section, under reg- ulations of the Attorney General— (A) the alien shall have the privilege of being represented, at no expense to the Gov- ernment, by counsel of the alien’s choosing who is authorized to practice in such pro- ceedings, (B) the alien shall have a reasonable op- portunity 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 pro- ceeding. (5) Consequences of failure to appear (A) In general Any alien who, after written notice re- quired 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 no- tice was so provided and that the alien is re- movable (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. Page 315 TITLE 8—ALIENS AND NATIONALITY § 1229a (B) No notice if failure to provide address in- formation 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 re- moval if the alien demonstrates that the failure to appear was because of excep- tional circumstances (as defined in sub- section (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 pro- vided 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 pro- ceedings 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 immi- gration judge or before an appellate adminis- trative body under this subchapter, frivolous behavior for which attorneys may be sanc- tioned, (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 Gen- eral to take actions with respect to inappro- priate behavior. (7) Limitation on discretionary relief for fail- ure to appear Any alien against whom a final order of re- moval is entered in absentia under this sub- section and who, at the time of the notice de- scribed 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 con- sequences under this paragraph of failing, other than because of exceptional cir- cumstances (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 para- graph (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 admis- sion, that the alien is clearly and beyond doubt entitled to be admitted and is not in- admissible 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 subpara- graph (B), the alien shall have access to the alien’s visa or other entry document, if any, and any other records and documents, not con- sidered by the Attorney General to be con- fidential, 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 bur- den 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 deport- ability shall be valid unless it is based upon reasonable, substantial, and probative evi- dence. (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 crimi- nal conviction: (i) An official record of judgment and conviction. Page 316 TITLE 8—ALIENS AND NATIONALITY § 1229a (ii) An official record of plea, verdict, and sentence. (iii) A docket entry from court records that indicates the existence of the convic- tion. (iv) Official minutes of a court pro- ceeding or a transcript of a court hearing in which the court takes notice of the ex- istence of the conviction. (v) An abstract of a record of conviction prepared by the court in which the convic- tion was entered, or by a State official as- sociated with the State’s repository of criminal justice records, that indicates the charge or section of law violated, the dis- position 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 in- dicates 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 institu- tion, which is the basis for that institu- tion’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 admis- sible as evidence to prove a criminal convic- tion if it is— (i) certified by a State official associated with the State’s repository of criminal jus- tice 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 offi- cial 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 es- tablish that the alien— (i) satisfies the applicable eligibility re- quirements; and (ii) with respect to any form of relief that is granted in the exercise of discre- tion, that the alien merits a favorable ex- ercise of discretion. (B) Sustaining burden The applicant must comply with the appli- cable requirements to submit information or documentation in support of the applicant’s application for relief or protection as pro- vided by law or by regulation or in the in- structions for the application form. In evalu- ating 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 suffi- cient 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 immi- gration judge determines that the applicant should provide evidence which corroborates otherwise credible testimony, such evidence must be provided unless the applicant dem- onstrates that the applicant does not have the evidence and cannot reasonably obtain the evidence. (C) Credibility determination Considering the totality of the cir- cumstances, and all relevant factors, the im- migration judge may base a credibility de- termination on the demeanor, candor, or re- sponsiveness 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 cir- cumstances 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 inac- curacies 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 credi- bility, however, if no adverse credibility de- termination is explicitly made, the appli- cant or witness shall have a rebuttable pre- sumption 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 recon- sider 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 Page 317 TITLE 8—ALIENS AND NATIONALITY § 1229a 1 So in original. 2 So in original. A closing parenthesis probably should appear. this limitation shall not apply so as to pre- vent the filing of one motion to reopen de- scribed 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 ad- ministrative 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 pre- sented 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 sub- paragraph (C) of such subsection. (iv) Special rule for battered spouses, chil- dren, 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 grant- ing 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 Attor- ney General may, in the Attorney Gen- eral’s discretion, waive this time limita- tion in the case of an alien who dem- onstrates 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 ex- haustion of all appeals if the motion estab- lishes that the alien is a qualified alien. (d) Stipulated removal The Attorney General shall provide by regula- tion 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’’ re- fers to exceptional circumstances (such as bat- tery 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) be- yond 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 inadmis- sible 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, § 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.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsecs. (a)(3), (b)(1), (4)(B), and (c)(3)(B), (C), was in the original, ‘‘this Act’’, meaning act June 27, 1952, ch. 477, 66 Stat. 163, known as the Immigration and Nationality Act, which is clas- sified principally to this chapter. For complete classi- fication of this Act to the Code, see Short Title note set out under section 1101 of this title and Tables. Section 1254 of this title, referred to in subsec. (c)(7)(C)(iv)(I), was repealed by Pub. L. 104–208, div. C, title III, § 308(b)(7), Sept. 30, 1996, 110 Stat. 3009–615. PRIOR PROVISIONS A prior section 240 of act June 27, 1952, was renum- bered section 240C, and is classified to section 1230 of this title. AMENDMENTS 2006—Subsec. (c)(7)(A). Pub. L. 109–162, § 825(a)(1), in- serted before period at end ‘‘, except that this limita- tion shall not apply so as to prevent the filing of one motion to reopen described in subparagraph (C)(iv)’’. Subsec. (c)(7)(C)(iv). Pub. L. 109–162, § 825(a)(2)(A), (B), substituted ‘‘spouses, children, and parents’’ for ‘‘spouses and children’’ in heading and ‘‘Any limitation under this section on the deadlines for filing such mo- Page 318 TITLE 8—ALIENS AND NATIONALITY § 1229b tions shall not apply’’ for ‘‘The deadline specified in subsection (b)(5)(C) of this section for filing a motion to reopen does not apply’’ in introductory provisions. Subsec. (c)(7)(C)(iv)(I). Pub. L. 109–162, § 825(a)(2)(C), which directed substitution of ‘‘, section 1229b(b) of this title, or section 1254(a)(3) of this title (as in effect on March 31, 1997)’’ for ‘‘or section 1229b(b) of this title’’, was executed by making the substitution for ‘‘or section 1229b(b)(2) of this title’’, to reflect the probable intent of Congress. Subsec. (c)(7)(C)(iv)(IV). Pub. L. 109–162, § 825(a)(2)(D)–(F), added subcl. (IV). Subsec. (e)(1). Pub. L. 109–162, § 813(a)(1), substituted ‘‘battery or extreme cruelty to the alien or any child or parent of the alien, serious illness of the alien,’’ for ‘‘serious illness of the alien’’. 2005—Subsec. (c)(4) to (7). Pub. L. 109–13 added par. (4) and redesignated former pars. (4) to (6) as (5) to (7), re- spectively. 2000—Subsec. (c)(6)(C)(iv). Pub. L. 106–386 added cl. (iv). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2006 AMENDMENT Pub. L. 109–162, title VIII, § 813(a)(2), Jan. 5, 2006, 119 Stat. 3058, provided that: ‘‘The amendment made by paragraph (1) [amending this section] shall apply to a failure to appear that occurs before, on, or after the date of the enactment of this Act [Jan. 5, 2006].’’ EFFECTIVE DATE OF 2005 AMENDMENT Amendment by Pub. L. 109–13 effective May 11, 2005, and applicable to applications for asylum, withholding, or other relief from removal made on or after such date, see section 101(h)(2) of Pub. L. 109–13, set out as a note under section 1158 of this title. EFFECTIVE DATE OF 2000 AMENDMENT Pub. L. 106–386, div. B, title V, § 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 provi- sions, 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 sec- tion 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 RE- OPEN DEPORTATION PROCEEDINGS FOR VICTIMS OF DO- MESTIC VIOLENCE Pub. L. 106–386, div. B, title V, § 1506(c)(2), Oct. 28, 2000, 114 Stat. 1528, as amended by Pub. L. 109–162, title VIII, §§ 814(a), 825(b), Jan. 5, 2006, 119 Stat. 3058, 3064, provided that: ‘‘(A)(i) IN GENERAL.—Notwithstanding any limitation imposed by law on motions to reopen or rescind depor- tation proceedings under the Immigration and Nation- ality Act [8 U.S.C. 1101 et seq.] (as in effect before the title III–A effective date in section 309 of the Illegal Im- migration Reform and Immigrant Responsibility Act of 1996 [Pub. L. 104–208] (8 U.S.C. 1101 note))— ‘‘(I) 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 Nation- ality Act (as so in effect) (8 U.S.C. 1252b(c)(3)) does not apply— ‘‘(aa) if the basis of the motion is to apply for re- lief 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 ‘‘(bb) if the motion is accompanied by a suspen- sion of deportation application to be filed with the Secretary of Homeland Security or by a copy of the self-petition that will be filed with the Department of Homeland Security upon the granting of the mo- tion to reopen; and ‘‘(II) any such limitation shall not apply so as to prevent the filing of one motion to reopen described in section 240(c)(7)(C)(iv) of the Immigration and Na- tionality Act (8 U.S.C. 1229a(c)(7)). ‘‘(ii) PRIMA FACIE CASE.—The filing of a motion to re- open under this subparagraph shall only stay the re- moval of a qualified alien (as defined in section 431(c)(1)(B) of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (8 U.S.C. 1641(c)(1)(B))[)] pending the final disposition of the mo- tion, including exhaustion of all appeals if the motion establishes that the alien is a qualified alien. ‘‘(B) APPLICABILITY.—Subparagraph (A) shall apply to motions filed by aliens who are physically present in the United States and who— ‘‘(i) are, or were, in deportation or exclusion pro- ceedings 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 Immi- gration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1101 note)); and ‘‘(ii) have become eligible to apply for relief de- scribed in subparagraph (A)(i) as a result of the amendments made by— ‘‘(I) subtitle G [§ 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 de- portation, 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. § 1229b. Cancellation of removal; adjustment of status (a) Cancellation of removal for certain perma- nent residents The Attorney General may cancel removal in the case of an alien who is inadmissible or de- portable from the United States if the alien— (1) has been an alien lawfully admitted for permanent residence for not less than 5 years, (2) has resided in the United States continu- ously for 7 years after having been admitted in any status, and (3) has not been convicted of any aggravated felony.