An alien placed in proceedings under this section may be charged with any applicable ground of inadmissibility under section of this title or any applicable ground of deportability under section of this title.
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 of this title.
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.
The proceeding may take place-
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.
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.
In proceedings under this section, under regulations of the Attorney General-
Any alien who, after written notice required under paragraph (1) or (2) of section 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 of this title.
No written notice shall be required under subparagraph (A) if the alien has failed to provide the address required under section of this title.
Such an order may be rescinded only-
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 of this title.
The Attorney General shall, by regulation-
Nothing in this paragraph shall be construed as limiting the authority of the Attorney General to take actions with respect to inappropriate behavior.
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 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 , , , , or of this title for a period of 10 years after the date of the entry of the final order of removal.
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.
If a medical officer or civil surgeon or board of medical officers has certified under section alien has a disease, illness, or addiction which would make the alien inadmissible under paragraph (1) of section of this title, the decision of the immigration judge shall be based solely upon such certification.of this title that an
In the proceeding the alien has the burden of establishing-
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.
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.
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:
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-
A certification under clause (i) may be by means of a computer-generated signature and statement of authenticity.
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.
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.
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.
The motion must be filed within 30 days of the date of entry of a final administrative order of removal.
The motion shall specify the errors of law or fact in the previous order and shall be supported by pertinent authority.
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).
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.
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.
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.
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.
Any limitation under this section on the deadlines for filing such motions shall not apply-
The filing of a motion to reopen under this clause shall only stay the removal of a qualified alien (as defined in section 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.
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.
In this section and sectionof this title:
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.
The term "removable" means-
1 So in original.
2 So in original. A closing parenthesis probably should appear.
8 U.S.C. § 1229a
June 27, 1952, ch. 477, title II, ch. 4, §240, as added Pub. L. 104-2081996; amended Pub. L. 106-3862000; Pub. L. 109-132005; Pub. L. 109-1622006.
REFERENCES IN TEXTThis 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 classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under sectionof this title and Tables.Section of this title, referred to in subsec. (c)(7)(C)(iv)(I), was repealed by Pub. L. 104-2081996.
PRIOR PROVISIONSA prior section 240 of act June 27, 1952, was renumbered section 240C, and is classified to sectionof this title.
AMENDMENTS 2006-Subsec. (c)(7)(A). Pub. L. 109-162inserted before period at end ", except that this limitation 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. 109-162substituted "spouses, children, and parents" for "spouses and children" in heading and "Any limitation under this section on the deadlines for filing such motions 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. 109-162which directed substitution of ", section 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), respectively. 2000-Subsec. (c)(6)(C)(iv). Pub. L. 106-386 added cl. (iv).of this title, or section of this title (as in effect on March 31, 1997)" for "or section of this title", was executed by making the substitution for "or section of this title", to reflect the probable intent of Congress. Subsec. (c)(7)(C)(iv)(IV). Pub. L. 109-162added subcl. (IV). Subsec. (e)(1). Pub. L. 109-162substituted "battery or extreme cruelty to the
EFFECTIVE DATE OF 2006 AMENDMENT Pub. L. 109-1622006, 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 sectionof this title.
EFFECTIVE DATE OF 2000 AMENDMENT Pub. L. 106-3862000, 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 DATESection 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 sectionof 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 of this title.
ABOLITION OF IMMIGRATION AND NATURALIZATION SERVICE AND TRANSFER OF FUNCTIONSFor abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under section of this title.
ELIMINATION OF TIME LIMITATIONS ON MOTIONS TO REOPEN DEPORTATION PROCEEDINGS FOR VICTIMS OF DOMESTIC VIOLENCE Pub. L. 106-3862000, as amended by Pub. L. 109-1622006, provided that:"(A)(i) IN GENERAL.-Notwithstanding any limitation imposed by law on motions to reopen or rescind deportation proceedings under the Immigration and Nationality Act [ alien (as defined in section 431(c)(1)(B) of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 ( )[)] pending the final disposition of the motion, 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 proceedings under the Immigration and Nationality Act [ 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 ( note)); and "(ii) have become eligible to apply for relief described 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 of this title]."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] ( 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 Nationality Act (as so in effect) ( ) does not apply-"(aa) 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 ( ), clause (ii) or (iii) of section 204(a)(1)(B) of such Act ( ), or section 244(a)(3) of such Act (as so in effect) ( ); and "(bb) if the motion is accompanied by a suspension 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 motion 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 Nationality Act ( ). "(ii) PRIMA FACIE CASE.-The filing of a motion to reopen under this subparagraph shall only stay the removal of a qualified
REFERENCES TO ORDER OF REMOVAL DEEMED TO INCLUDE ORDER OF EXCLUSION AND DEPORTATIONFor 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 of this title.
- Attorney General
- The term "Attorney General" means the Attorney General of the United States.
- The term "Service" means the Immigration and Naturalization Service of the Department of Justice.
- The term "State" includes the District of Columbia, Puerto Rico, Guam, the Virgin Islands of the United States, and the Commonwealth of the Northern Mariana Islands.
- The term "alien" means any person not a citizen or national of the United States.
- The term "conviction" means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where- (i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed.
- immigration judge
- The term "immigration judge" means an attorney whom the Attorney General appoints as an administrative judge within the Executive Office for Immigration Review, qualified to conduct specified classes of proceedings, including a hearing under section 1229a of this title. An immigration judge shall be subject to such supervision and shall perform such duties as the Attorney General shall prescribe, but shall not be employed by the Immigration and Naturalization Service.
- The term "national" means a person owing permanent allegiance to a state.
- The term "naturalization" means the conferring of nationality of a state upon a person after birth, by any means whatsoever.
- order of deportation
- The term "order of deportation" means the order of the special inquiry officer, or other such administrative officer to whom the Attorney General has delegated the responsibility for determining whether an alien is deportable, concluding that the alien is deportable or ordering deportation.
- The term "person" means an individual or an organization.
- The term "substantial" means, for purposes of paragraph (15)(E) with reference to trade or capital, such an amount of trade or capital as is established by the Secretary of State, after consultation with appropriate agencies of Government.
- The terms "admission" and "admitted" mean, with respect to an alien, the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.
- The terms "admission" and "admitted" mean, with respect to an alien, the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.