8 USC 1229(a)(4)

§ 1229a

TITLE 8—ALIENS AND NATIONALITY

§ 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,

Page 266

(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.

Page 267

TITLE 8—ALIENS AND NATIONALITY

(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

§ 1229a

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

§ 1229a

TITLE 8—ALIENS AND NATIONALITY

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 fac-

Page 268

tor. 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.
1 So

in original.

Page 269

TITLE 8—ALIENS AND NATIONALITY

(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.
2 So

in original. A closing parenthesis probably should appear.

§ 1229a

(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.)
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 classified principally to this chapter. For complete classification 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 renumbered section 240C, and is classified to section 1230 of
this title.
AMENDMENTS
2006—Subsec. (c)(7)(A). Pub. L. 109–162, § 825(a)(1), inserted 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. 109–162, § 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 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. 109–162, § 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), respectively.
2000—Subsec. (c)(6)(C)(iv). Pub. L. 106–386 added cl.
(iv).
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

§ 1229b

TITLE 8—ALIENS AND NATIONALITY

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.
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 REOPEN DEPORTATION PROCEEDINGS FOR VICTIMS OF DOMESTIC 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 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))—
‘‘(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) (8 U.S.C. 1252b(c)(3)) 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 (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 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 (8 U.S.C. 1229a(c)(7)).
‘‘(ii) PRIMA FACIE CASE.—The filing of a motion to reopen under this subparagraph shall only stay the removal 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 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
[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 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

Page 270

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.

§ 1229b. Cancellation of removal; adjustment of
status
(a) Cancellation of removal for certain permanent residents
The Attorney General may cancel removal in
the case of an alien who is inadmissible or deportable 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 continuously for 7 years after having been admitted in
any status, and
(3) has not been convicted of any aggravated
felony.
(b) Cancellation of removal and adjustment of
status for certain nonpermanent residents
(1) In general
The Attorney General may cancel removal
of, and adjust to the status of an alien lawfully admitted for permanent residence, an
alien who is inadmissible or deportable from
the United States if the alien—
(A) has been physically present in the
United States for a continuous period of not
less than 10 years immediately preceding the
date of such application;
(B) has been a person of good moral character during such period;
(C) has not been convicted of an offense
under section 1182(a)(2), 1227(a)(2), or
1227(a)(3) of this title, subject to paragraph
(5); and
(D) establishes that removal would result
in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child,
who is a citizen of the United States or an
alien lawfully admitted for permanent residence.
(2) Special rule for battered spouse or child
(A) Authority
The Attorney General may cancel removal
of, and adjust to the status of an alien lawfully admitted for permanent residence, an
alien who is inadmissible or deportable from
the United States if the alien demonstrates
that—
(i)(I) the alien has been battered or subjected to extreme cruelty by a spouse or
parent who is or was a United States citizen (or is the parent of a child of a United
States citizen and the child has been battered or subjected to extreme cruelty by
such citizen parent);
(II) the alien has been battered or subjected to extreme cruelty by a spouse or
parent who is or was a lawful permanent