REMOVAL PROCEEDINGS; CANCELLATION OF REMOVAL AND ADJUSTMENT OF STATUS; VOLUNTARY DEPARTURE (REVISED AND NEW SECTIONS 239 TO 2400.

SEC. 304. REMOVAL PROCEEDINGS; CANCELLATION OF REMOVAL AND ADJUSTMENT OF STATUS; VOLUNTARY DEPARTURE (REVISED AND NEW SECTIONS 239 TO 2400. (a) In General.— Chapter 4 of title II is amended— (1) by redesignating section 239 (8 U.S.C. 1229) as section 234 and by moving such section to immediately follow section 233; (2) by redesignating section 240 (8 U.S.C. 1230) as section 240C; and (3) by inserting after section 238 the following new sections: “initiation of removal proceedings “Sec. 239. (a) Notice to Appear.— “(1) In general.— In removal proceedings under section 240, written notice (in this section referred to as a ‘notice to appear’) shall be given in person to the alien (or, if personal service is not practicable, through service by mail to the alien or to the alien’s counsel of record, if any) specifying the following: “(A) The nature of the proceedings against the alien. 110 STAT. 3009–588 “(B) The legal authority under which the proceedings are conducted. “(C) The acts or conduct alleged to be in violation of law. “(D) The charges against the alien and the statutory provisions alleged to have been violated. “(E) The alien may be represented by counsel and the alien will be provided (i) a period of time to secure counsel under subsection (b)(1) and (ii) a current list of counsel prepared under subsection (b)(2). “(F) (i) The requirement that the alien must immediately provide (or have provided) the Attorney General with a written record of an address and telephone number (if any) at which the alien may be contacted respecting proceedings under section 240. “(ii) The requirement that the alien must provide the Attorney General immediately with a written record of any change of the alien’s address or telephone number. “(iii) The consequences under section 240(b)(5) of failure to provide address and telephone information pursuant to this subparagraph. “(G) (i) The time and place at which the proceedings will be held. “(ii) The consequences under section 240(b)(5) of the failure, except under exceptional circumstances, to appear at such proceedings. “(2) Notice of change in time or place of proceedings.— “(A) In general.— In removal proceedings under section 240, in the case of any change or postponement in the time and place of such proceedings, subject to subparagraph (B) a written notice shall be given in person to the alien (or, if personal service is not practicable, through service by mail to the alien or to the alien’s counsel of record, if any) specifying— “(i) the new time or place of the proceedings, and “(ii) the consequences under section 240(b)(5) of failing, except under exceptional circumstances, to attend such proceedings. “(B) Exception.— In the case of an alien not in detention, a written notice shall not be required under this paragraph if the alien has failed to provide the address required under paragraph (1)(F). “(3) Central address files.— The Attorney General shall create a system to record and preserve on a timely basis notices of addresses and telephone numbers (and changes) provided under paragraph (1)(F). “(b) Securing of Counsel.— “(1) In general.— In order that an alien be permitted the opportunity to secure counsel before the first hearing date in proceedings under section 240, the hearing date shall not be scheduled earlier than 10 days after the service of the notice to appear, unless the alien requests in writing an earlier hearing date. “(2) Current lists of counsel.— The Attorney General shall provide for lists (updated not less often than quarterly) of persons who have indicated their availability to represent 110 STAT. 3009–589pro bono aliens in proceedings under section 240. Such lists shall be provided under subsection (a)(1)(E) and otherwise made generally available. “(3) Rule of construction.— Nothing in this subsection may be construed to prevent the Attorney General from proceeding against an alien pursuant to section 240 if the time period described in paragraph (1) has elapsed and the alien has failed to secure counsel. “(c) Service by Mail.— Service by mail under this section shall be sufficient if there is proof of attempted delivery to the last address provided by the alien in accordance with subsection (a)(1)(F). “(d) Prompt Initiation of Removal.— (1) In the case of an alien who is convicted of an offense which makes the alien deportable, the Attorney General shall begin any removal proceeding as expeditiously as possible after the date of the conviction. “(2) Nothing in this subsection shall be construed to create any substantive or procedural right or benefit that is legally enforceable by any party against the United States or its agencies or officers or any other person. “removal proceedings “Sec. 240. (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 212(a) or any applicable ground of deportability under section 237(a). “(3) Exclusive procedures.— Unless otherwise specified in this Act, 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 238. “(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 Act. “(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 110 STAT. 3009–590through 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) Aliens 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 Act, 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 239(a) 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 239(a)(1)(F). “(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 239(a)(1)(F). “(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 239(a) 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 242 of an order entered in absentia 110 STAT. 3009–591under this paragraph shall (except in cases described in section 242(b)(5)) 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 235(b)(2)(C). “(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 title, 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 239(a), 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 240A, 240B, 245, 248, or 249 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 232(b) that an alien has a disease, illness, or addiction which would make the alien inadmissible under paragraph (1) of section 212(a), 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 212; or 110 STAT. 3009–592 “(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 Act, 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 Act, 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. 110 STAT. 3009–593 “(4) Notice.— If the immigration judge decides that the alien is removable and orders the alien to be removed, the judge shall inform the alien of the right to appeal that decision and of the consequences for failure to depart under the order of removal, including civil and criminal penalties. “(5) Motions to reconsider.— “(A) In general.— The alien may file one motion to reconsider a decision that the alien is removable from the United States. “(B) Deadline.— The motion must be filed within 30 days of the date of entry of a final administrative order of removal. “(C) Contents.— The motion shall specify the errors of law or fact in the previous order and shall be supported by pertinent authority. “(6) Motions to reopen.— “(A) In general.— An alien may file one motion to reopen proceedings under this section. “(B) Contents.— The motion to reopen shall state the new facts that will be proven at a hearing to be held if the motion is granted, and shall be supported by affidavits or other evidentiary material. “(C) Deadline.— “(i) In general.— Except as provided in this subparagraph, the motion to reopen shall be filed within 90 days of the date of entry of a final administrative order of removal. “(ii) Asylum.— There is no time Emit on the filing of a motion to reopen if the basis of the motion is to apply for relief under sections 208 or 241(b)(3) 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. “(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 240A: “(1) Exceptional circumstances.— The term ‘exceptional circumstances’ refers to exceptional circumstances (such as serious illness of the alien or serious illness or death of the spouse, child, or parent of the alien, but not including less compelling circumstances) beyond the control of the alien. “(2) Removable.— The term ‘removable’ means— “(A) in the case of an alien not admitted to the United States, that the alien is inadmissible under section 212, or “(B) in the case of an alien admitted to the United States, that the alien is deportable under section 237. 110 STAT. 3009–594 “cancellation of removal; adjustment of status “Sec. 240A. (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 in the case of 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 212(a)(2), 237(a)(2), or 237(a)(3); 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.— The Attorney General may cancel removal in the case of an alien who is inadmissible or deportable from the United States if the alien demonstrates that— “(A) the alien has been battered or subjected to extreme cruelty in the United States by a spouse or parent who is a United States citizen or lawful permanent resident (or is the parent of a child of a United States citizen or lawful permanent resident and the child has been battered or subjected to extreme cruelty in the United States by such citizen or permanent resident parent); “(B) the alien has been physically present in the United States for a continuous period of not less than 3 years immediately preceding the date of such application; “(C) the alien has been a person of good moral character during such period; “(D) the alien is not inadmissible under paragraph (2) or (3) of section 212(a), is not deportable under paragraph (1)(G) or (2) through (4) of section 237(a), and has not been convicted of an aggravated felony; and “(E) the removal would result in extreme hardship to the alien, the alien’s child, or (in the case of an alien who is a child) to the alien’s parent. In acting on applications under this paragraph, the Attorney General shall consider any credible evidence relevant to the application. The determination of what evidence is credible and the weight to be given that evidence shall be within the sole discretion of the Attorney General. 110 STAT. 3009–595 “(3) Adjustment of status.— The Attorney General may adjust to the status of an alien lawfully admitted for permanent residence any alien who the Attorney General determines meets the requirements of paragraph (1) or (2). The number of adjustments under this paragraph shall not exceed 4,000 for any fiscal year. The Attorney General shall record the alien’s lawful admission for permanent residence as of the date the Attorney General’s cancellation of removal under paragraph (1) or (2) or determination under this paragraph. “(c) Aliens Ineligible for Relief.— The provisions of subsections (a) and (b)( 1) shall not apply to any of the following aliens: “(1) An alien who entered the United States as a crewman subsequent to June 30, 1964. “(2) An alien who was admitted to the United States as a nonimmigrant exchange alien as defined in section 101(a)(15)(J), or has acquired the status of such a nonimmigrant exchange alien after admission, in order to receive graduate medical education or training, regardless of whether or not the alien is subject to or has fulfilled the two-year foreign residence requirement of section 212(e). “(3) An alien who— “(A) was admitted to the United States as a non-immigrant exchange alien as defined in section 101(a)(15)(J) or has acquired the status of such a non-immigrant exchange alien after admission other than to receive graduate medical education or training, “(B) is subject to the two-year foreign residence requirement of section 212(e), and “(C) has not fulfilled that requirement or received a waiver thereof. “(4) An alien who is inadmissible under section 212(a)(3) or deportable under section 237(a)(4). “(5) An alien who is described in section 241(b)(3)(B)(i). “(6) An alien whose removal has previously been cancelled under this section or whose deportation was suspended under section 244(a) or who has been granted relief under section 212(c), as such sections were in effect before the date of the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. “(d) Special Rules Relating to Continuous Residence or Physical Presence.— “(1) Termination of continuous period.— For purposes of this section, any period of continuous residence or continuous physical presence in the United States shall be deemed to end when the alien is served a notice to appear under section 239(a) or when the alien has committed an offense referred to in section 212(a)(2) that renders the alien inadmissible to the United States under section 212(a)(2) or removable from the United States under section 237(a)(2) or 237(a)(4), whichever is earliest. “(2) Treatment of certain breaks in presence.— An alien shall be considered to have failed to maintain continuous physical presence in the United States under subsections (b)(1) and (b)(2) if the alien has departed from the United States for any period in excess of 90 days or for any periods in the aggregate exceeding 180 days. 110 STAT. 3009–596 “(3) Continuity not required because of honorable service in armed forces and presence upon entry into service.— The requirements of continuous residence or continuous physical presence in the United States under subsections (a) and (b) shall not apply to an alien who— “(A) has served for a minimum period of 24 months in an active-duty status in the Armed Forces of the United States and, if separated from such service, was separated under honorable conditions, and “(B) at the time of the alien’s enlistment or induction was in the United States. “(e) Annual Limitation.— The Attorney General may not cancel the removal and adjust the status under this section, nor suspend the deportation and adjust the status under section 244(a) (as in effect before the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996), of a total of more than 4,000 aliens in any fiscal year. The previous sentence shall apply regardless of when an alien applied for such cancellation and adjustment and whether such an alien had previously applied for suspension of deportation under such section 244(a). “voluntary departure “Sec. 240B. (a) Certain Conditions.— “(1) In general.— The Attorney General may permit an alien voluntarily to depart the United States at the alien’s own expense under this subsection, in lieu of being subject to proceedings under section 240 or prior to the completion of such proceedings, if the alien is not deportable under section 237(a)(2)(A)(iii) or section 237(a)(4)(B). “(2) Period.— Permission to depart voluntarily under this subsection shall not be valid for a period exceeding 120 days. “(3) Bond.— The Attorney General may require an alien permitted to depart voluntarily under this subsection to post a voluntary departure bond, to be surrendered upon proof that the alien has departed the United States within the time specified. “(4) Treatment of aliens arriving in the united states.— In the case of an alien who is arriving in the United States and with respect to whom proceedings under section 240 are (or would otherwise be) initiated at the time of such alien’s arrival, paragraph (1) shall not apply. Nothing in this paragraph shall be construed as preventing such an alien from withdrawing the application for admission in accordance with section 235(a)(4). “(b) At Conclusion of Proceedings.— “(1) In general.— The Attorney General may permit an alien voluntarily to depart the United States at the alien’s own expense if, at the conclusion of a proceeding under section 240, the immigration judge enters an order granting voluntary departure in lieu of removal and finds that— “(A) the alien has been physically present in the United States for a period of at least one year immediately preceding the date the notice to appear was served under section 239(a); “(B) the alien is, and has been, a person of good moral character for at least 5 years immediately preceding the alien’s application for voluntary departure; 110 STAT. 3009–597 “(C) the alien is not deportable under section 237(a)(2)(A)(iii) or section 237(a)(4); and “(D) the alien has established by clear and convincing evidence that the alien has the means to depart the United States and intends to do so. “(2) Period.— Permission to depart voluntarily under this subsection shall not be valid for a period exceeding 60 days. “(3) Bond.— An alien permitted to depart voluntarily under this subsection shall be required to post a voluntary departure bond, in an amount necessary to ensure that the alien will depart, to be surrendered upon proof that the alien has departed the United States within the time specified. “(c) Aliens Not Eligible.— The Attorney General shall not permit an alien to depart voluntarily under this section if the alien was previously permitted to so depart after having been found inadmissible under section 212(a)(6)(A). “(d) Civil Penalty for Failure to Depart.— If an alien is permitted to depart voluntarily under this section and fails voluntarily to depart the United States within the time period specified, the alien shall be subject to a civil penalty of not less than $1,000 and not more than $5,000, and be ineligible for a period of 10 years for any further relief under this section and sections 240A, 245, 248, and 249. The order permitting the alien to depart voluntarily shall inform the alien of the penalties under this subsection. “(e) Additional Conditions.— The Attorney General may by regulation limit eligibility for voluntary departure under this section for any class or classes of aliens. No court may review any regulation issued under this subsection. “(f) Judicial Review.— No court shall have jurisdiction over an appeal from denial of a request for an order of voluntary departure under subsection (b), nor shall any court order a stay of an alien’s removal pending consideration of any claim with respect to voluntary departure.”. (b) Repeal of Section 212(c).— Section 212(c) (8 U.S.C. 1182(c)) is repealed. (c) Streamlining Removal of Criminal Aliens.— (1) In general.— Section 242A(b)(4) (8 U.S.C. 1252a(b)(4)), as amended by section 442(a) of Public Law 104–132 and before redesignation by section 308(b)(5) of this division, is amended— (A) by striking subparagraph (D); (B) by amending subparagraph (E) to read as follows: “(D) a determination is made for the record that the individual upon whom the notice for the proceeding under this section is served (either in person or by mail) is, in fact, the alien named in such notice;”; and (C) by redesignating subparagraphs (F) and (G) as subparagraph (E) and (F), respectively. (2) Effective Date.— The amendments made by paragraph (1) shall be effective as if included in the enactment of section 442(a) of Public Law 104–132.