8 U.S.C. § 1229 — Initiation of removal proceedings

Page 312 TITLE 8—ALIENS AND NATIONALITY § 1229 Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1996 AMENDMENTS Pub. L. 104–208, div. C, title III, § 304(c)(2), Sept. 30, 1996, 110 Stat. 3009–597, provided that: ‘‘The amend- ments made by paragraph (1) [amending this section] shall be effective as if included in the enactment of sec- tion 442(a) of Public Law 104–132.’’ Amendment by section 308(b)(5), (c)(1), (4)(A), (e)(1)(F), (2)(D), (10), (g)(1), (2)(A), (C), (5)(A)(ii), (C), (D), (10)(H) of Pub. L. 104–208 effective, with certain transi- tional provisions, on the first day of the first month be- ginning more than 180 days after Sept. 30, 1996, see sec- tion 309 of Pub. L. 104–208, set out as a note under sec- tion 1101 of this title. Pub. L. 104–208, div. C, title III, § 306(d), Sept. 30, 1996, 110 Stat. 3009–612, provided that the amendment made by section 306(d) is effective as if included in the enact- ment of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104–132. Pub. L. 104–208, div. C, title III, § 374(c), Sept. 30, 1996, 110 Stat. 3009–648, provided that: ‘‘The amendment made by subsection (a)(2) [amending this section] shall be effective as if included in the enactment of section 224(a) of the Immigration and Nationality Technical Corrections Act of 1994 [Pub. L. 103–416].’’ Amendment by section 671(b)(13) of Pub. L. 104–208 ef- fective as if included in the enactment of the Immigra- tion and Nationality Technical Corrections Act of 1994, Pub. L. 103–416, see section 671(b)(14) of Pub. L. 104–208, set out as a note under section 1101 of this title. Amendment by section 671(c)(5), (6) of Pub. L. 104–208 effective as if included in the enactment of subtitle A of title IV of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104–132, see section 671(c)(7) of Pub. L. 104–208, set out as a note under section 1189 of this title. Pub. L. 104–132, title IV, § 442(d), Apr. 24, 1996, 110 Stat. 1280, provided that: ‘‘The amendments made by this section [amending this section and section 1105a of this title] shall become effective no later than 60 days after the publication by the Attorney General of imple- menting regulations that shall be published on or be- fore January 1, 1997.’’ EFFECTIVE DATE OF 1994 AMENDMENTS Amendment by section 224(a) of Pub. L. 103–416 appli- cable to all aliens whose adjudication of guilt or guilty plea is entered in the record after Oct. 25, 1994, see sec- tion 224(c) of Pub. L. 103–416, set out as a note under section 1252 of this title. Pub. L. 103–322, title XIII, § 130004(d), Sept. 13, 1994, 108 Stat. 2028, provided that: ‘‘The amendments made by this section [amending this section and section 1105a of this title] shall apply to all aliens against whom depor- tation proceedings are initiated after the date of enact- ment of this Act [Sept. 13, 1994].’’ EFFECTIVE DATE OF 1990 AMENDMENT Pub. L. 101–649, title V, § 506(b), Nov. 29, 1990, 104 Stat. 5050, provided that: ‘‘The amendment made by sub- section (a) [amending this section] shall take effect on the date of the enactment of this Act [Nov. 29, 1990].’’ EFFECTIVE DATE Pub. L. 100–690, title VII, § 7347(c), Nov. 18, 1988, 102 Stat. 4472, provided that: ‘‘The amendments made by subsections (a) and (b) [enacting this section and amending section 1105a of this title] shall apply in the case of any alien convicted of an aggravated felony on or after the date of the enactment of this Act [Nov. 18, 1988].’’ 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. REFERENCES TO ORDER OF REMOVAL DEEMED TO INCLUDE ORDER OF EXCLUSION AND DEPORTATION For purposes of carrying out this chapter, any ref- erence in law to an order of removal is deemed to in- clude a reference to an order of exclusion and deporta- tion 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. EXPANDED SPECIAL REMOVAL PROCEEDINGS Pub. L. 103–322, title XIII, § 130007, Sept. 13, 1994, 108 Stat. 2029, as amended by Pub. L. 104–208, div. C, title III, § 308(g)(5)(F), (10)(F), title VI, § 671(a)(6), Sept. 30, 1996, 110 Stat. 3009–623, 3009–625, 3009–721, provided that: ‘‘(a) IN GENERAL.—Subject to the availability of ap- propriations, the Attorney General may expand the program authorized by section[s] 238(a)(3) and 239(d) of the Immigration and Nationality Act [8 U.S.C. 1228(a)(3), 1229(d)] to ensure that such aliens are imme- diately deportable upon their release from incarcer- ation. ‘‘(b) DETENTION AND REMOVAL OF CRIMINAL ALIENS.— Subject to the availability of appropriations, the Attor- ney General may— ‘‘(1) construct or contract for the construction of 2 Immigration and Naturalization Service Processing Centers to detain criminal aliens; and ‘‘(2) provide for the detention and removal of such aliens. ‘‘(c) REPORT.—By September 30, 1996, and September 30, 1998 the Attorney General shall report to the Con- gress on the programs referred to in subsections (a) and (b). The report shall include an evaluation of the pro- grams, an outcome-based measurement of performance, and an analysis of the cost effectiveness of the addi- tional resources provided under this Act [see Tables for classification]. ‘‘(d) AUTHORIZATION OF APPROPRIATIONS.—There are authorized to be appropriated to carry out this sec- tion— ‘‘(1) $55,000,000 for fiscal year 1995; ‘‘(2) $54,000,000 for fiscal year 1996; ‘‘(3) $49,000,000 for fiscal year 1997; and ‘‘(4) $2,000,000 for fiscal year 1998.’’ § 1229. Initiation of removal proceedings (a) Notice to appear (1) In general In removal proceedings under section 1229a of this title, written notice (in this section re- ferred 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. (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 coun- sel 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 pre- pared 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 1229a of this title. Page 313 TITLE 8—ALIENS AND NATIONALITY § 1229 (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 1229a(b)(5) of this title of failure to provide address and telephone information pursuant to this subparagraph. (G)(i) The time and place at which the pro- ceedings will be held. (ii) The consequences under section 1229a(b)(5) of this title of the failure, except under exceptional circumstances, to appear at such proceedings. (2) Notice of change in time or place of pro- ceedings (A) In general In removal proceedings under section 1229a of this title, 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 prac- ticable, 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 pro- ceedings, and (ii) the consequences under section 1229a(b)(5) of this title of failing, except under exceptional circumstances, to at- tend 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 pro- vide 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 no- tices 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 op- portunity to secure counsel before the first hearing date in proceedings under section 1229a of this title, 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 per- sons who have indicated their availability to represent pro bono aliens in proceedings under section 1229a of this title. Such lists shall be provided under subsection (a)(1)(E) and other- wise made generally available. (3) Rule of construction Nothing in this subsection may be construed to prevent the Attorney General from pro- ceeding against an alien pursuant to section 1229a of this title 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 suf- ficient if there is proof of attempted delivery to the last address provided by the alien in accord- ance 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 pro- ceeding as expeditiously as possible after the date of the conviction. (2) Nothing in this subsection shall be con- strued to create any substantive or procedural right or benefit that is legally enforceable by any party against the United States or its agen- cies or officers or any other person. (e) Certification of compliance with restrictions on disclosure (1) In general In cases where an enforcement action lead- ing to a removal proceeding was taken against an alien at any of the locations specified in paragraph (2), the Notice to Appear shall in- clude a statement that the provisions of sec- tion 1367 of this title have been complied with. (2) Locations The locations specified in this paragraph are as follows: (A) At a domestic violence shelter, a rape crisis center, supervised visitation center, family justice center, a victim services, or victim services provider, or a community- based organization. (B) At a courthouse (or in connection with that appearance of the alien at a court- house) if the alien is appearing in connection with a protection order case, child custody case, or other civil or criminal case relating to domestic violence, sexual assault, traf- ficking, or stalking in which the alien has been battered or subject to extreme cruelty or if the alien is described in subparagraph (T) or (U) of section 1101(a)(15) of this title. (June 27, 1952, ch. 477, title II, ch. 4, § 239, as added Pub. L. 104–208, div. C, title III, § 304(a)(3), Sept. 30, 1996, 110 Stat. 3009–587; amended Pub. L. 109–162, title VIII, § 825(c)(1), Jan. 5, 2006, 119 Stat. 3065; Pub. L. 109–271, § 6(d), Aug. 12, 2006, 120 Stat. 763.) Editorial Notes PRIOR PROVISIONS A prior section 1229, act June 27, 1952, ch. 477, title II, ch. 4, § 239, 66 Stat. 203, as amended, which related to designation of ports of entry for aliens arriving by air- craft, was renumbered section 234 of act June 27, 1952, by Pub. L. 104–208, div. C, title III, § 304(a)(1), Sept. 30, 1996, 110 Stat. 3009–587, and was transferred to section 1224 of this title. AMENDMENTS 2006—Subsec. (e). Pub. L. 109–162 added subsec. (e). Subsec. (e)(2)(B). Pub. L. 109–271 substituted ‘‘(U)’’ for ‘‘(V)’’. EFFECTIVE DATE OF 2006 AMENDMENT Pub. L. 109–162, title VIII, § 825(c)(2), Jan. 5, 2006, 119 Stat. 3065, provided that: ‘‘The amendment made by 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.