Title III, Subtitle A
examine the alien and any witnesses. The immigra-
tion judge shall have authority (under regulations
prescribed by the Attorney General) to sanction by
civil money penalty any action (or inaction) in con-
tempt 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) through video conference, or
‘‘(iii) 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 involved
after the alien has been advised of the right to
proceed in person or through video conference.
‘‘(3) PRESENCE OF ALIEN.—If, by reason of
the alien’s mental incompetency it is impracticable
for the alien to be present at the proceeding, the At-
torney General shall prescribe safeguards to protect
the rights and privileges of the alien.
Title III, Subtitle A
‘‘(4) ALIENS RIGHTS IN PROCEEDING.—In pro-
ceedings under this section, under regulations of the
Attorney General—
‘‘(A) the alien shall have the privilege of
being represented, at no expense to the Govern-
ment, by counsel of the alien’s choosing who is
authorized to practice in such proceedings,
‘‘(B) the alien shall have a reasonable op-
portunity to examine the evidence against the
alien, to present evidence on the alien’s own be-
half, and to cross-examine witnesses presented
by the Government, and
‘‘(C) a complete record shall be kept of all
testimony and evidence produced at the pro-
ceeding.
‘‘(5) CONSEQUENCES
OF
FAILURE
TO
AP-
PEAR.—
‘‘(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 es-
tablishes by clear, unequivocal, and convincing
evidence that the written notice was so provided
Title III, Subtitle A
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 excep-
tional circumstances (as defined in sub-
section (e)(1)), or
‘‘(ii) upon a motion to reopen filed at
any time if the alien demonstrates that the
alien did not receive notice in accordance
with paragraph (1) or (2) of section 239(a)
or the alien demonstrates that the alien
Title III, Subtitle A
was in Federal or State custody and did
not appear 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.
‘‘(D) EFFECT ON JUDICIAL REVIEW.—Any
petition for review under section 242 of an
order entered in absentia under this paragraph
shall (except in cases described in section
242(b)(5)) be confined to the issues of the va-
lidity of the notice provided to the alien, to the
reasons for the alien’s not attending the pro-
ceeding, and to whether or not the alien is re-
movable.
‘‘(6) TREATMENT OF FRIVOLOUS BEHAVIOR.—
The Attorney General shall, by regulation—
‘‘(A) define in a proceeding before an im-
migration judge or before an appellate adminis-
trative 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
Title III, Subtitle A
‘‘(C) impose appropriate sanctions (which
may include suspension and disbarment) in the
case of frivolous behavior.
Nothing in this paragraph shall be construed as lim-
iting 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 under-
stands, 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 de-
Title III, Subtitle A
cide whether an alien is removable from the
United States. The determination of the immi-
gration judge shall be based only on the evi-
dence produced at the hearing.
‘‘(B) CERTAIN MEDICAL DECISIONS.—If a
medical officer or civil surgeon or board of med-
ical 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 admis-
sion, that the alien is clearly and beyond doubt
entitled to be admitted and is not inadmissible
under section 212; 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 Gen-