169
of the President and members of the Committees on the Judiciary of the
Senate and House of Representatives on refugee admissions and the alloca-
tion of refugee admissions that—
(1) review the worldwide refugee situation or an unforeseen emer-
gency refugee situation and estimate possible United States participa-
tion in the situation;
(2) consider the reasons for believing that the proposed admissions
are justified by humanitarian concerns or grave humanitarian concerns
or otherwise are in the interest of the United States; and
(3) provide the members with—
(A) a description of the nature of the refugee situation;
(B) a description of the number and allocation of the refugees
to be admitted and an analysis of conditions in the foreign coun-
tries from which they came;
(C) a description of the proposed plans and estimated cost of
moving and resettling the refugees;
(D) an analysis of the anticipated social, economic, and demo-
graphic impact of the refugee admissions on the United States;
(E) a description of the extent to which other foreign countries
will admit and assist in resettling the refugees;
(F) an analysis of the impact of United States participation in
the resettlement of the refugees on the foreign policy interests of
the United States; and
(G) additional information that may be appropriate or requested
by the members.
(b) PROVIDING INFORMATION IN ADVANCE.—To the extent possible, in-
formation described in subsection (a)(3) of this section shall be provided at
least 2 weeks before the discussions in person between the representatives
of the President and the members.
§ 5102. Annual worldwide numerical limitations
(a) GENERAL.—Before the beginning of each fiscal year and after appro-
priate consultation, the President shall establish for the fiscal year the num-
ber of refugee admissions to the United States justified by humanitarian
concerns or otherwise in the interest of the United States. For any fiscal
year, not more than 1,000 refugees may be admitted under this subsection
or granted asylum under section 5106 of this title following a decision under
section 131(b) of this title.
(b) ALLOCATION OF ADMISSIONS.—After appropriate consultation, the
President shall allocate admissions among refugees of special humanitarian
concern to the United States.
170
(c) ENUMERATION OF NUMBER OF ALIENS GRANTED ASYLUM.—When
establishing the number of refugee admissions under subsection (a) of this
section, the President also shall enumerate the number of aliens granted
asylum during the prior fiscal year.
§ 5103. Additional emergency numerical limitations
(a) ESTABLISHMENT
OF NUMBER.—As provided in this section, the
President may establish an additional number of refugee admissions to the
United States for a succeeding period of not more than 12 months. The
President may establish the additional number when the President decides,
before the beginning of the period and after appropriate consultation,
that—
(1) an unforeseen emergency refugee situation exists;
(2) the admission of certain refugees in response to the situation is
justified by grave humanitarian concerns or otherwise is in the interest
of the United States; and
(3) the admission of the refugees cannot be carried out under section
5102 of this title.
(b) ALLOCATION.—After appropriate consultation, the President shall al-
locate the admissions under subsection (a) of this section among refugees
of special humanitarian concern to the United States.
§ 5104. Congressional consultation and hearings
(a) PRESIDENTIAL REPORTS AND DISCUSSIONS.—Before the beginning of
each fiscal year, the President shall report to the Committees on the Judici-
ary of the Senate and House of Representatives on the foreseeable number
of refugees who will need resettlement during the fiscal year and the antici-
pated allocation of refugee admissions during that year. The President shall
provide for periodic discussions between representatives of the President and
members of the Committees on—
(1) changes in the worldwide refugee situation;
(2) the progress of refugee admissions; and
(3) the possible need for changes in the allocation of admissions
among refugees.
(b) PRINTING IN CONGRESSIONAL RECORD.—As soon as possible after
representatives of the President initiate appropriate consultation on the
number of refugee admissions under section 5102 or 5103 of this title, the
Committees shall have the substance of the consultations printed in the
Congressional Record.
(c) COMMITTEE HEARINGS.—After the President begins appropriate con-
sultation before acting under section 5102 or 5103 of this title, each Com-
mittee shall hold a hearing to review the proposed action unless—
171
(1) public disclosure of the details of the action would jeopardize the
lives or safety of individuals; and
(2) if an action under section 5103, the time and nature of the emer-
gency refugee situation do not permit hearings.
§ 5105. Admissions
(a) AUTHORITY OF THE ATTORNEY GENERAL.—The Attorney General
may admit a refugee under regulations the Attorney General prescribes and
subject to the numerical limitations of sections 5102 and 5103 of this title.
The Attorney General may admit the refugee when the refugee is—
(1) not resettled firmly in a foreign country;
(2) admissible (except as otherwise provided under subsections (d)
and (e) of this section) as an immigrant under this title; and
(3) of special humanitarian concern to the United States.
(b) BURDEN OF PROOF.—An alien claiming refugee status has the bur-
den of proving that the alien is entitled to that status.
(c) ADMISSION OF SPOUSES AND CHILDREN.—(1) The spouse or child
(as defined in section 108(a) (1)–(5) of this title) of a refugee qualifying
for admission under subsection (a) of this section is entitled to be admitted
the same as the refugee if the spouse or child is—
(A) accompanying or following to join the refugee;
(B) not an individual referred to in section 131(a)(2) of this title;
(C) not admissible under subsection (a) of this section; and
(D) admissible (except as otherwise provided under subsections (d)
and (e) of this section) as an immigrant under this title.
(2) The admission of the spouse or child shall be charged against the nu-
merical limitation under which the refugee’s admission is charged.
(d) NONAPPLICATION.—Sections 6301 (a)(2)–(d) and 6306 (a)–(c) of this
title do not apply to an alien applying for admission under this section.
(e) WAIVERS.—(1) The Attorney General may waive subchapter I of
chapter 63 of this title (except sections 6309(a)(3), 6310 (a)–(c), and 6311)
for the alien—
(A) for humanitarian purposes;
(B) to ensure family unity; or
(C) when otherwise in the public interest.
(2) A waiver under paragraph (1) of this subsection shall be in writing
and granted only after an investigation of the alien. The Attorney General
shall report to Congress after the end of each fiscal year on the number
of waivers granted in that fiscal year and a summary of the reasons for
granting the waivers.
(f) CERTAIN CUBAN POLITICAL PRISONERS.—(1) In this subsection,
‘‘process’’ means accepting and reviewing an application and preparing nec-
172
essary documents and making appropriate decisions related to the applica-
tion.
(2) Consistent with the procedure applicable to similar cases in other for-
eign countries, and except as necessary to ensure the orderly process of
available applicants, consular officers and appropriate officers of the Immi-
gration and Naturalization Service shall process an application for admis-
sion to the United States as a refugee from a Cuban national imprisoned
for political reasons by the Cuban Government for any period of time after
December 31, 1958.
(g) ENDING REFUGEE STATUS.—Under regulations the Attorney General
prescribes, the Attorney General may end the refugee status of an alien and
the spouse and child of the alien on finding that the alien was not a refugee
at the time of the alien’s admission.
§ 5106. Asylum
(a) AUTHORITY TO APPLY FOR ASYLUM.—(1) Any alien who is physically
present in the United States or who arrives in the United States (whether
or not at a designated port of arrival and including an alien who is brought
to the United States after having been interdicted in international or United
States waters), irrespective of the alien’s status, may apply for asylum in
accordance with this section or, where applicable, sections 6102(c)(1)(B)
and 6105 of this title.
(2) Paragraph (1) of this subsection does not apply to an alien—
(A) if the Attorney General decides that the alien may be removed,
under a bilateral or multilateral agreement, to a country (except the
alien’s country of nationality or, if the alien has no nationality, the
country in which the alien last habitually resided) in which the alien’s
life or freedom would not be threatened on account of race, religion,
nationality, membership in a particular social group, or political opin-
ion, and where the alien would have access to a complete and fair pro-
cedure for deciding a claim to asylum or equivalent temporary protec-
tion, unless the Attorney General finds that it is in the public interest
for the alien to receive asylum in the United States;
(B) unless the alien demonstrates by clear and convincing evidence
that the application has been filed within one year after the date of
the alien’s arrival in the United States; or
(C) if the alien has previously applied for asylum and the application
has been denied.
(3) Notwithstanding paragraphs (2) (B) and (C) of this subsection, an
application for asylum may be considered if the alien demonstrates to the
satisfaction of the Attorney General the existence of—
173
(A) changed circumstances which materially affect the applicant’s
eligibility for asylum; or
(B) extraordinary circumstances related to the delay in filing an ap-
plication within the period specified in paragraph (2)(B) of this sub-
section.
(4) No court may review a decision of the Attorney General under para-
graph (2) or (3) of this subsection.
(b) CONDITIONS FOR GRANTING ASYLUM.—(1) The Attorney General
may grant asylum to an alien who has applied for asylum in accordance
with the requirements and procedures established by the Attorney General
under this section if the Attorney General decides that the alien is a refugee
within the meaning of section 131 of this title.
(2) Paragraph (1) of this subsection does not apply to an alien if the At-
torney General decides that—
(A) the alien ordered, incited, assisted, or otherwise participated in
the persecution of an individual on account of race, religion, national-
ity, membership in a particular social group, or political opinion;
(B) the alien, having been convicted by a final judgment of a par-
ticularly serious crime, is a danger to the community of the United
States;
(C) there are serious reasons to believe that the alien has committed
a serious nonpolitical crime outside the United States before the alien
arrived in the United States;
(D) there are reasonable grounds to believe the alien is a danger to
the security of the United States;
(E) the alien is inadmissible under section 6310(b)(2) (A)–(D) of
this title or deportable under section 6508(b) of this title, unless, in
the case only of an alien inadmissible under section 6310(b)(2)(D), the
Attorney General decides that there are not reasonable grounds to be-
lieve that the alien is a danger to the security of the United States;
or
(F) the alien was firmly resettled in another country prior to arriving
in the United States.
(3) The Attorney General by regulation may establish additional limita-
tions and conditions, consistent with this section, under which an alien is
ineligible for asylum under paragraph (1) of this subsection.
(4)(A) For purposes of paragraph (2)(B) of this subsection, an alien who
has been convicted of an aggravated felony is deemed to have been convicted
of a particularly serious crime.
174
(B) The Attorney General by regulation may designate offenses that will
be deemed to be a crime described in paragraph (2) (B) or (C) of this sub-
section.
(5) No court may review a decision of the Attorney General under para-
graph (2)(E) of this subsection.
(c) GRANTING ASYLUM TO SPOUSES AND CHILDREN.—The spouse or
child (as defined in section 108(a) (1)–(5) of this title) of an alien granted
asylum under subsection (b) of this section may, if not otherwise eligible
for asylum under subsection (b), be granted asylum under subsection (b)
if the spouse or child is accompanying or following to join the alien.
(d) PROCEDURE.—(1) The Attorney General shall establish a procedure
for the consideration of asylum applications filed under subsection (a) of
this section. The procedure shall provide that—
(A) asylum cannot be granted until the identity of the applicant has
been checked against all appropriate records or databases maintained
by the Attorney General and by the Secretary of State, including the
Automated Visa Lookout System, to establish any grounds on which
the alien may be inadmissible to or deportable from the United States,
or ineligible to apply for or be granted asylum;
(B) in the absence of exceptional circumstances, the initial interview
or hearing on the asylum application shall commence not later than 45
days after the date an application is filed;
(C) in the absence of exceptional circumstances, final administrative
adjudication of the asylum application, not including administrative ap-
peal, shall be completed within 180 days after the date an application
is filed;
(D) any administrative appeal must be filed within 30 days of a deci-
sion granting or denying asylum, or within 30 days of the completion
of removal proceedings before an immigration judge under section 6704
of this title, whichever is later; and
(E) for an applicant who, without prior authorization or in the ab-
sence of exceptional circumstances, does not appear for an interview or
hearing, including a hearing under section 6704 of this title, the appli-
cation may be dismissed or the applicant otherwise may be sanctioned
for failing to appear.
(2) The Attorney General may require applicants to submit fingerprints
and a photograph at the time and in the manner the Attorney General es-
tablishes by regulation.
(3) The Attorney General by regulation may provide for additional limita-
tions or conditions, consistent with this title, on the consideration of an ap-
plication for asylum.
175
(4) When an application for asylum is filed, the Attorney General shall—
(A) advise the alien of the privilege of being represented by counsel
and of the consequences, under paragraph (5) of this subsection, of
knowingly filing a frivolous application; and
(B) provide the alien a list of individuals (updated at least quarterly)
who have indicated their availability to represent aliens in asylum pro-
ceedings on a pro bono basis.
(5) If the Attorney General decides that an alien knowingly has made a
frivolous application for asylum and has received the notice under para-
graph (4)(A) of this subsection, the alien shall be ineligible permanently for
any benefits under this title (except subchapter I of chapter 7, chapter 47,
subchapters II and III of chapter 131, and chapters 133 and 135), effective
as of the date of a final decision on the application.
(6) This subsection does not create any substantive or procedural right
or benefit that is legally enforceable by any party against the Federal Gov-
ernment or its departments, agencies, instrumentalities, or officers, or any
other person.
(e) FEES.—The Attorney General may impose fees for the consideration
of an application for asylum, for employment authorization under this sec-
tion, and for adjustment of status under section 5107(b) of this title. The
fees may not exceed the Attorney General’s costs in adjudicating the appli-
cations. The Attorney General may provide for the assessment and payment
of the fees over a period of time or by installments. This subsection does
not—
(1) require the Attorney General to charge fees for adjudication serv-
ices provided to asylum applicants; or
(2) limit the authority of the Attorney General to set adjudication
and naturalization fees under section 903 of this title.
(f) EMPLOYMENT AUTHORIZATION.—An applicant for asylum is not enti-
tled to employment authorization, but authorization may be provided under
regulation by the Attorney General. An applicant who otherwise is not eligi-
ble for employment authorization may not be granted the authorization
prior to 180 days after the date of filing the application for asylum.
(g) ASYLUM STATUS.—The Attorney General—
(1) may not remove or return an alien granted asylum under sub-
section (b) of this section to the alien’s country of nationality or, if the
alien has no nationality, the country in which the alien last habitually
resided;
(2) must authorize the alien to engage in employment in the United
States and provide the alien with appropriate endorsement of that au-
thorization; and
176
(3) may allow the alien to travel outside the United States with the
prior consent of the Attorney General.
(h) TERMINATION OF ASYLUM.—(1) Asylum granted under subsection (b)
of this section does not convey a right to remain permanently in the United
States, and may be terminated if the Attorney General decides that the
alien—
(A) no longer meets the conditions described in subsection (b)(1) of
this section because of a fundamental change in circumstances;
(B) meets a condition described in subsection (b)(2) of this section;
(C) may be removed, under a bilateral or multilateral agreement, to
a country (except the alien’s country of nationality or, if the alien has
no nationality, the country in which the alien last habitually resided)
in which the alien’s life or freedom would not be threatened on account
of race, religion, nationality, membership in a particular social group,
or political opinion, and where the alien is eligible to receive asylum
or equivalent temporary protection;
(D) voluntarily has availed himself or herself of the protection of the
alien’s country of nationality or, if the alien has no nationality, the
country in which the alien last habitually resided, by returning to the
country with permanent resident status or the reasonable possibility of
obtaining that status with the same rights and obligations pertaining
to other permanent residents of that country; or
(E) has acquired a new nationality and enjoys the protection of the
country of the alien’s new nationality.
(2) An alien described in paragraph (1) of this subsection is subject to
any applicable grounds of inadmissibility or deportability under subchapter
I of chapter 63 or subchapter I of chapter 65 of this title. The Attorney
General shall direct the alien’s removal or return as provided in sections
6704, 6715, and 6716 of this title.
(i) EXPEDITED REMOVAL FOR DENIED ASYLUM APPLICANTS.—(1) The
Attorney General may provide for the expeditious adjudication of asylum
claims and, unless an applicant for asylum remains in an otherwise valid
nonimmigrant status, the expeditious removal of asylum applicants whose
applications have been denied finally.
(2) Not more than $91,000,000 may be appropriated to the Attorney
General for the fiscal year ending September 30, 1998, to carry out this
subsection.
§ 5107. Adjustment of status
(a) INSPECTION AND EXAMINATION OF REFUGEES FOR ADMISSION AS
IMMIGRANTS.—(1) An alien admitted as a refugee under section 5105 of
this title and physically present in the United States for at least one year
177
shall return or be returned to the custody of the Commissioner of Immigra-
tion and Naturalization at the end of the year for inspection and examina-
tion for admission as an immigrant under sections 6102 and 6704 of this
title if—
(A) the refugee’s status as a refugee has not been ended by the At-
torney General; and
(B) the refugee has not been lawfully admitted for permanent resi-
dence.
(2) A refugee found to be admissible (except as otherwise provided under
subsections (d)(2) and (e) of this section) as an immigrant under this title
at the time of the refugee’s inspection and examination under paragraph (1)
of this subsection shall be lawfully admitted for permanent residence as of
the date of the refugee’s arrival in the United States. Admission is without
regard to the numerical limitations of this title.
(b) ALIENS GRANTED ASYLUM.—(1) Under regulations the Attorney
General prescribes, not more than 10,000 of the refugee admissions author-
ized in a fiscal year under section 5102 of this title may be made available
by the Attorney General to adjust the status of aliens granted asylum under
section 5106 of this title to that of aliens lawfully admitted for permanent
residence. The status of an alien may be adjusted when the alien—
(A) applies for the adjustment;
(B) has been physically present in the United States for at least one
year after being granted asylum;
(C) continues to be a refugee within the meaning of section 131 of
this title or a spouse or child of the refugee;
(D) is not resettled firmly in a foreign country; and
(E) is admissible (except as otherwise provided under subsections
(d)(2) and (e) of this section) as an immigrant under this title at the
time of examination for the adjustment.
(2) On approval of an application under paragraph (1) of this subsection,
the Attorney General shall record the lawful admission for permanent resi-
dence of the alien as of the date one year before the date of approval.
(c) CERTAIN FORMER ASYLEES.—(1) Except as provided in paragraph
(2) of this subsection and subsection (d)(1) of this section, subsection (b)
of this section applies to an alien granted asylum before November 29, 1990
(even if asylum had been ended under section 5106 of this title) who—
(A) is no longer a refugee because of a change in circumstances in
a foreign country; and
(B) was or would be qualified for adjustment of status under sub-
section (b) of this section on November 29, 1990, except for subsection
(b)(1) (B) and (C) and the numerical limitation under subsection (b).
178
(2) The number of aliens who are natives of a foreign country who may
adjust their status under paragraph (1) of this subsection in a fiscal year
may not be more than the difference between the foreign country limitation
established under section 4110(a) of this title and the number of aliens
chargeable to the country in the fiscal year under section 4111 of this title.
(d) NONAPPLICATION.—(1) The numerical limitation of subsection (b) of
this section does not apply to an alien described in subsection (c) of this
section or to an alien who applied for adjustment of status under subsection
(b) before June 2, 1990.
(2) Sections 6301 (a)–(d) and 6306 (a)–(c) of this title do not apply to
an alien seeking adjustment of status under this section.
(e) WAIVER.—The Attorney General may waive subchapter I of chapter
63 of this title (except sections 6309(a)(3), 6310 (a)–(c), and 6311) for an
alien—
(1) for humanitarian purposes;
(2) to ensure family unity; or
(3) when otherwise in the public interest.
PART D—ADMISSION AND REMOVAL
CHAPTER 61—INSPECTION AND ADMISSION
SUBCHAPTER I—GENERAL
Sec.
6101.
Applicants for admission.
6102.
Inspection.
6103.
Presentation of documentation.
6104.
Physical and mental examinations.
6105.
Asylum interviews.
6106.
Limitations on review.
6107.
Aliens inadmissible on security and related grounds.
6108.
Presidential authority to limit admission of aliens.
6109.
Suspension of admission of aliens transported on certain airlines.
SUBCHAPTER II—ADMISSION OF CERTAIN ALIENS
6121.
Parole.
6122.
Temporary admission of inadmissible nonimmigrants.
6123.
Accredited officials of foreign governments.
6124.
Alien witnesses.
SUBCHAPTER I—GENERAL
§ 6101. Applicants for admission
(a) GENERAL.—An alien is deemed to be an applicant for admission if
the alien—
(1) is present in the United States and has not been admitted; or
(2) arrives in the United States (whether or not at a designated port
of arrival), including an alien who is brought to the United States after
being interdicted in international or United States waters.
(b) STOWAWAYS.—(1) An arriving alien who is a stowaway—
(A) is not an applicant for admission;
(B) is not eligible to apply for admission or to be admitted; and
179
(C) is not eligible for a removal proceeding under section 6704 of
this title.
(2) On inspection by an immigration officer, an arriving alien who is a
stowaway shall be ordered removed. If the alien indicates an intention to
apply for asylum under section 5106 of this title or a fear of persecution,
the officer shall refer the alien for an asylum interview under section 6105
of this title. A stowaway may apply for asylum only if found to have a credi-
ble fear of persecution under section 6105.
(c) WITHDRAWAL OF APPLICATION FOR ADMISSION.—At any time, the
Attorney General may permit an alien applying for admission to withdraw
the application for admission and to depart immediately from the United
States.
§ 6102. Inspection
(a) GENERAL.—An alien (including an alien crewmember) who is an ap-
plicant for admission or otherwise seeking admission or readmission to or
transit through the United States shall be inspected by an immigration offi-
cer.
(b) STATEMENTS.—An applicant for admission may be required to state
under oath any information sought by an immigration officer about the pur-
poses and intentions of the applicant in seeking admission to the United
States, including the applicant’s intended length of stay, whether the appli-
cant intends to remain permanently or become a citizen of the United
States, and whether the applicant is inadmissible.
(c) INSPECTION OF ARRIVING ALIENS AND CERTAIN OTHER ALIENS NOT
ADMITTED OR PAROLED.—(1) If an immigration officer decides that an
alien (except an alien described in paragraph (3) of this subsection) who is
arriving in the United States or is described in paragraph (2) of this sub-
section is inadmissible under section 6301(a) or 6303 (a) or (b) of this
title—
(A) the officer shall order the alien removed from the United States
without further hearing or review; or
(B) if the alien indicates an intention to apply for asylum under sec-
tion 5106 of this title or a fear of persecution, the officer shall refer
the alien for an asylum interview under section 6105 of this title.
(2)(A) The Attorney General may apply paragraph (1) of this subsection
to any alien described in subparagraph (B) of this paragraph as designated
by the Attorney General. A designation under this paragraph is in the sole
and unreviewable discretion of the Attorney General and may be modified
at any time.
(B) An alien described in this subparagraph is an alien who—
(i) is not described in paragraph (3) of this subsection;
180
(ii) has not been admitted or paroled into the United States; and
(iii) has not affirmatively shown, to the satisfaction of an immigra-
tion officer, that the alien has been physically present in the United
States continuously for the 2-year period immediately before the date
of the decision of inadmissibility under this subsection.
(3) This subsection does not apply to an alien who—
(A) is a native or citizen of a country in the Western Hemisphere
with whose government the Federal Government does not have full dip-
lomatic relations; and
(B) arrives by aircraft at a port of entry.
(d) INSPECTION OF OTHER ALIENS.—(1) Subject to paragraphs (2) and
(3) of this subsection, if an immigration officer decides that an alien who
is an applicant for admission is not clearly and beyond a doubt entitled to
be admitted, the alien shall be detained for a proceeding under section 6704
of this title.
(2) Paragraph (1) of this subsection does not apply to an alien—
(A) who is a stowaway;
(B) who is a crewmember; or
(C) to whom subsection (c) of this section applies.
(3) If an alien described in paragraph (1) of this subsection arrives on
land (whether or not at a designated port of arrival) from a foreign territory
contiguous to the United States, the Attorney General may return the alien
to that territory pending a proceeding under section 6704 of this title.
(e) CHALLENGE OF DECISION.—The decision of the immigration officer
conducting the inspection, if favorable to the admission of an alien, is sub-
ject to challenge by any other immigration officer. A challenge operates to
take the alien before an immigration judge for a proceeding under section
6704 of this title.
§ 6103. Presentation of documentation
(a) IMMIGRANT ARRIVALS.—An alien arriving in the United States as an
immigrant shall surrender the alien’s immigrant visa to the immigration of-
ficer at the port of entry. The immigration officer shall endorse on the
visa—
(1) the date and the port of arrival;
(2) the identity of the vessel, aircraft, or other means of transpor-
tation; and
(3) any other information required by regulation.
(b) NONIMMIGRANT ARRIVALS.—(1) Except as provided in paragraph (2)
of this subsection, an alien arriving in the United States as a nonimmigrant
shall present or surrender to the immigration officer at the port of entry
any documentation required by regulation.
181
(2) An alien arriving in the United States as a nonimmigrant crew-
member and in possession of a passport and no other documentation may
be admitted until it is practicable to issue documentation to the alien if—
(A) the name of the crewmember is on the crew list of the vessel
or aircraft on which the crewmember arrives;
(B) a consular officer has visaed the crew list (but the consular offi-
cer may exclude a crewmember from the crew list visa); and
(C) the alien is otherwise admissible.
(c) RECORDS OF ADMISSION.—The Attorney General shall file—
(1) as a record of an alien’s admission, an immigrant visa surren-
dered by the alien under subsection (a) of this section; and
(2) a record of admission to the United States that the Attorney
General considers necessary to enforce the immigration laws, on the ad-
mission of—
(A) a returning resident immigrant under section 4311(b) of
this title; or
(B) a nonimmigrant.
§ 6104. Physical and mental examinations
(a) GENERAL.—An alien (including an alien crewmember) arriving in the
United States shall be detained for a sufficient time for observation and a
physical and mental examination under this section to determine whether
the alien is inadmissible under section 6304 of this title.
(b) CONDUCT OF EXAMINATION.—(1) An examination under this section
shall be conducted under administrative regulations prescribed by the Attor-
ney General and medical regulations prescribed by the Secretary of Health
and Human Services.
(2)(A) The examination shall be conducted by a medical officer of the
Public Health Service. However, if a medical officer of the Public Health
Service is not available, the Attorney General may employ, on terms the At-
torney General prescribes, a civil surgeon with at least 4 years of profes-
sional experience.
(B) A physician of the armed forces of the United States with at least
4 years of professional experience is deemed to be a civil surgeon under sub-
paragraph (A) of this paragraph if the alien to be examined is a special im-
migrant as defined in section 133(a)(13) of this title.
(c) OFFICERS TRAINED IN MENTAL EXAMINATIONS.—Medical officers of
the Public Health Service, specially trained in diagnosing mental disorders,
shall be assigned to ports of entry designated by the Attorney General. The
Attorney General shall provide them with interpreters and suitable facilities
for the detention and examination of arriving aliens suspected of being inad-
missible under section 6304 of this title.
182
(d) CERTIFICATION OF MEDICAL CONDITIONS.—The physician conduct-
ing the examination shall certify, for the information of immigration officers
and immigration judges, any observation by the physician that the alien has
a condition described in section 6304 of this title. If the physician deter-
mines that the alien is inadmissible, is helpless from sickness, physical or
mental disability, or infancy, and is accompanied by another alien whose
protection or guardianship may be required, the physician may certify those
facts for purposes of applying section 6305 of this title.
(e) APPEAL OF CERTIFICATION.—An alien certified under this section as
having a condition described in section 6304 of this title may appeal the
certification to a board of medical officers of the Public Health Service con-
vened by the Secretary. The alien may present before the board, at the
alien’s expense, one expert medical witness.
§ 6105. Asylum interviews
(a) DEFINITIONS.—In this section—
(1) ‘‘asylum officer’’ means an immigration officer who—
(A) has had professional training in country conditions, asylum
law, and interview techniques comparable to that provided to full-
time adjudicators of applications under section 5106 of this title;
and
(B) is supervised by an officer who meets the condition de-
scribed in subclause (A) of this clause and has had substantial ex-
perience adjudicating asylum applications.
(2) ‘‘credible fear of persecution’’ means a significant possibility, tak-
ing into account the credibility of the statements made by the alien in
support of the alien’s claim and other facts known to the officer, that
the alien could establish eligibility for asylum under section 5106 of
this title.
(b) CONDUCT OF INTERVIEW.—An asylum officer shall conduct an inter-
view of an alien referred for an interview under this section. The interview
may be conducted at a port of entry or other place designated by the Attor-
ney General.
(c) CREDIBLE FEAR OF PERSECUTION.—If the asylum officer decides
that the alien has a credible fear of persecution, the alien shall be detained
for further consideration of the application for asylum.
(d) NO CREDIBLE FEAR OF PERSECUTION.—(1) Subject to paragraph
(3) of this subsection, if the asylum officer decides that the alien does not
have a credible fear of persecution, the officer shall order the alien removed
from the United States without further hearing or review.
(2) The officer shall prepare a written record of a decision under para-
graph (1) of this subsection. The record shall include a summary of the ma-
183
terial facts as stated by the applicant, any additional facts relied on by the
officer, and the officer’s analysis of why, in the light of those facts, the alien
has not established a credible fear of persecution. A copy of the officer’s
interview notes shall be attached to the written summary.
(3) The Attorney General shall provide by regulation for prompt review
by an immigration judge, on the alien’s request, of a decision under para-
graph (1) of this subsection that the alien does not have a credible fear of
persecution. The review shall include an opportunity for the alien to be
heard and questioned by the immigration judge, in person or by telephone
or video connection. Review shall be concluded as expeditiously as possible,
and to the maximum extent practicable within 24 hours, but in no case later
than 7 days after the date of the decision under paragraph (1).
(4) An alien subject to the procedures under this subsection shall be de-
tained pending a final decision of credible fear of persecution and, if found
not to have such a fear, until removed.
(e) INFORMATION AND CONSULTATION ABOUT INTERVIEWS.—(1) The
Attorney General shall provide information about the asylum interview de-
scribed in this section to aliens who may be eligible.
(2) Under regulations prescribed by the Attorney General, an alien who
is eligible for an asylum interview may consult with one or more individuals
of the alien’s choosing before the interview and any review of the interview.
The consultation shall be at no expense to the Federal Government and may
not unreasonably delay the process.
§ 6106. Limitations on review
(a) LIMITATION ON ADMINISTRATIVE REVIEW.—Except as provided in
section 6105(d)(3) of this title, a removal order entered under section
6102(c)(1)(A) or 6105(d)(1) of this title is not subject to administrative ap-
peal, except that the Attorney General shall provide by regulation for
prompt review of an order under section 6102(c)(1)(A) against an alien who
claims under oath, or as permitted under penalty of perjury under section
1746 of title 28, after having been warned of the penalties for falsely mak-
ing such a claim, to have been—
(1) lawfully admitted for permanent residence;
(2) admitted as a refugee under section 5105 of this title; or
(3) granted asylum under section 5106 of this title.
(b) LIMIT ON COLLATERAL ATTACK.—In an action brought against an
alien under section 10148(b) or 10149(a) of this title, the court does not
have jurisdiction to hear any claim attacking the validity of an order of re-
moval entered under section 6102(c)(1)(A) or 6105(d) of this title.
184
§ 6107. Aliens inadmissible on security and related grounds
(a) ACTION BY IMMIGRATION OFFICER.—If an immigration officer or an
immigration judge suspects that an arriving alien may be inadmissible
under section 6310 (a) (1)–(3), (b), or (c) of this title, the officer or judge
shall—
(1) order the alien removed, subject to review under subsection (b)
of this section;
(2) report the order of removal to the Attorney General; and
(3) not conduct any further inquiry or hearing until ordered by the
Attorney General.
(b) REVIEW BY ATTORNEY GENERAL.—(1) The Attorney General shall
review orders issued under subsection (a) of this section.
(2) The Attorney General may order the alien removed without further
inquiry or hearing by an immigration judge if the Attorney General—
(A) is satisfied on the basis of confidential information that the alien
is inadmissible under a provision referred to in subsection (a) of this
section; and
(B) after consulting with appropriate security agencies of the Fed-
eral Government, concludes that disclosure of the information would be
prejudicial to the public interest, safety, or security.
(3) If the Attorney General does not order the removal of the alien under
paragraph (2) of this subsection, the Attorney General shall specify the fur-
ther inquiry or hearing that shall be conducted in the case.
(c) SUBMISSION OF STATEMENT AND INFORMATION.—The alien or the
alien’s representative may submit a written statement and additional infor-
mation for consideration by the Attorney General.
§ 6108. Presidential authority to limit admission of aliens
(a) GENERAL.—When the President finds that the admission of aliens or
a class of aliens into the United States would be detrimental to the interests
of the United States, the President, by proclamation, may suspend the ad-
mission of all aliens or a class of aliens or impose restrictions on their ad-
mission, for any period the President considers necessary.
(b) UNITED NATIONS REPRESENTATIVES ENGAGED IN ESPIONAGE.—
The President shall use the authority of the President, including the author-
ity contained in section 6 of the Joint Resolution of August 4, 1947 (known
as the United Nations Headquarters Agreement Act) (22 U.S.C. 287 note),
to deny admission of an individual to the United States as a representative
to the United Nations if the President determines that the individual has
been found to have been engaged in espionage activities directed against the
United States or its allies and may pose a threat to the security interests
of the United States. The President may waive this subsection if the Presi-
185
dent decides, and notifies Congress, that the waiver is in the security inter-
ests of the United States.
(c) IMMEDIATE RELATIVES AND BUSINESS PARTNERS OF DRUG TRAF-
FICKERS.—The President shall take all reasonable steps provided by law to
ensure that the immediate relatives of an individual described in section
487(a) of the Foreign Assistance Act of 1961 (22 U.S.C. 2291f(a)), and
the business partners of an individual or entity described in section 487(a),
are not admitted to the United States.
§ 6109. Suspension of admission of aliens transported on
certain airlines
If the Attorney General finds that a commercial airline has failed to com-
ply with regulations of the Attorney General related to requirements of air-
lines for the detection of fraudulent documents used by passengers traveling
to the United States (including the training of personnel in that detection),
the Attorney General may suspend the admission of some or all aliens trans-
ported to the United States by that airline.
SUBCHAPTER II—ADMISSION OF CERTAIN ALIENS
§ 6121. Parole
(a) GENERAL.—Except as provided in section 2305(c) of this title, the
Attorney General, on a case-by-case basis for urgent humanitarian reasons
or significant public benefit, may parole temporarily into the United States
an alien applying for admission. However, if the alien is a refugee, the At-
torney General may parole the alien only if the Attorney General finds com-
pelling reasons in the public interest requiring the alien to be paroled in-
stead of admitted as a refugee. Parole of an alien under this section is—
(1) subject to conditions the Attorney General may prescribe; and
(2) not an admission to the United States.
(b) END OF PAROLE.—When the Attorney General is of the opinion that
the purposes of the parole have been served, the alien immediately shall re-
turn or be returned to the custody from which the alien was paroled. There-
after, the alien’s application for admission shall continue to be considered
in the same manner as the application of any other alien for admission.
§ 6122. Temporary 
admission 
of 
inadmissible 
non-
immigrants
(a) VISAS.—An alien applying for a nonimmigrant visa who a consular
officer believes is ineligible for a visa under subchapter I of chapter 63 of
this title may be issued a nonimmigrant visa and admitted temporarily as
a nonimmigrant if the Attorney General approves a recommendation by the
officer or the Secretary of State that the alien be admitted temporarily de-
spite the alien’s inadmissibility.
186
(b) ADMISSIONS.—An alien inadmissible under subchapter I of chapter 63
of this title may be admitted temporarily as a nonimmigrant if the alien
is—
(1) in possession of appropriate documentation; or
(2) granted a waiver of the documentation requirements.
(c) CONDITIONS TO CONTROL ADMISSION AND RETURN.—The Attorney
General shall prescribe conditions, including the filing of a bond as nec-
essary, to control the admission and return of aliens applying for admission
under this section.
(d) NONAPPLICATION.—Subsections (a) and (b) of this section do not
apply to an alien who is inadmissible under section 6310(a) (1), (3), or (4)
or (c) or 6311 of this title.
§ 6123. Accredited officials of foreign governments
On a reciprocal basis, an accredited official of a government of a foreign
country, and the official’s immediate family, attendants, servants, and per-
sonal employees, may be admitted for immediate and continuous transit
through the United States without regard to subchapter I of chapter 63 of
this title (except sections 6301(a)(1) and 6310 (a)–(c)).
§ 6124. Alien witnesses
(a) WAIVERS.—The Attorney General may waive the requirements of sec-
tion 2121(a) of this title and the grounds of inadmissibility in subchapter
I of chapter 63 of this title (except section 6311) for an alien applying as
a nonimmigrant classified under section 2326 of this title if the Attorney
General considers it in the national interest to do so.
(b) REMOVAL FOR NONDISCLOSURE OR SUBSEQUENT CONDUCT.—This
section does not prevent initiation of a removal proceeding against an alien
admitted as a nonimmigrant classified under section 2326 of this title, for—
(1) conduct or a condition that was not disclosed to the Attorney
General before the alien’s admission as a nonimmigrant classified
under that section; or
(2) conduct committed after the alien’s admission to the United
States.
CHAPTER 63—INADMISSIBILITY
SUBCHAPTER I—GROUNDS
Sec.
6301.
Lack of documentation.
6302.
Present without admission or parole.
6303.
Fraud and misrepresentation.
6304.
Health.
6305.
Aliens accompanying aliens who are inadmissible for health or infancy.
6306.
Public charges.
6307.
Stowaways.
6308.
Encouraging others to enter illegally.
6309.
Criminal and immoral acts.
6310.
National security.
187
6311.
Participation in Nazi persecution or genocide.
6312.
Ineligible for citizenship.
6313.
Former citizens who renounced citizenship to avoid taxation.
6314.
Evasion of military service.
6315.
Student visa abusers.
6316.
International child abduction.
6317.
Aliens leaving Guam, Puerto Rico, or the Virgin Islands.
6318.
Failure to attend removal proceeding.
6319.
Aliens previously removed.
SUBCHAPTER II—RELATED PROVISIONS
6331.
Sponsor’s affidavit of support.
SUBCHAPTER I—GROUNDS
§ 6301. Lack of documentation
(a) GENERAL.—An alien is ineligible for admission to the United States
if the alien is seeking admission as—
(1) a nonimmigrant and does not satisfy the documentation require-
ments of section 2121 of this title; or
(2) an immigrant and does not satisfy the documentation require-
ments of section 4311 of this title.
(b) LABOR CERTIFICATIONS.—An alien is ineligible for a visa or admis-
sion to the United States if the alien is seeking admission as an immigrant
to perform skilled or unskilled labor and the Secretary of Labor has not
issued the certification required by section 4104(g)(2)(A) of this title.
(c) GRADUATES OF NON-ACCREDITED MEDICAL SCHOOLS.—An alien is
ineligible for a visa or admission to the United States if the alien—
(1) is seeking admission as an immigrant principally to perform serv-
ices as a member of the medical profession;
(2) is a graduate of a medical school not accredited by an entity ap-
proved by the Secretary of Education; and
(3) has not satisfied the requirements of section 4104(g)(1) of this
title.
(d) UNCERTIFIED FOREIGN HEALTH-CARE WORKERS.—An alien is ineli-
gible for a visa or admission to the United States if the alien—
(1) is seeking admission to perform labor as a health-care worker
other than as a physician; and
(2) has not satisfied the requirements of section 4104(g)(3) of this
title.
§ 6302. Present without admission or parole
(a) GENERAL.—An alien is ineligible for a visa or admission to the Unit-
ed States if the alien—
(1) is present in the United States without having been admitted or
paroled; or
(2) arrives in the United States at a time or place not designated
by the Attorney General.
188
(b) EXCEPTION FOR BATTERED WOMEN AND CHILDREN.—Subsection
(a) of this section does not apply to an alien who demonstrates that—
(1) the alien qualifies for immigrant status under section 4301(a)
(3), (4), (6), or (7) of this title;
(2)(A) the alien has been battered or subjected to extreme cruelty
by—
(i) a spouse or parent; or
(ii) a member of the spouse’s or parent’s family residing in the
same household as the alien, with the spouse or parent consenting
to or acquiescing in the battery or cruelty; or
(B) the alien’s child has been battered or subjected to extreme cru-
elty by—
(i) a spouse or parent of the alien, without the alien actively
participating in the battery or cruelty; or
(ii) a member of the spouse’s or parent’s family residing in the
same household as the alien, with the spouse or parent consenting
to or acquiescing in the battery or cruelty, and without the alien
actively participating in the battery or cruelty; and
(3) a substantial connection exists between the battery or cruelty de-
scribed in clause (1) or (2) of this subsection and the alien’s unlawful
entry into the United States.
(c) NONAPPLICATION.—The requirements of subsection (b)(2) and (3) of
this section do not apply to an alien who demonstrates that the alien first
arrived in the United States before April 1, 1997.
§ 6303. Fraud and misrepresentation
(a) GENERAL.—(1) An alien is ineligible for a visa or admission to the
United States if the alien, by fraud or willful misrepresentation of a mate-
rial fact, obtained, or attempted or attempts to obtain, a visa, other docu-
mentation, admission to the United States, or another benefit under this
title (except subchapter I of chapter 7, chapter 47, subchapters II and III
of chapter 131, and chapters 133 and 135).
(2) The Attorney General may waive paragraph (1) of this subsection for
an immigrant if—
(A) the immigrant is the spouse, son, or daughter of a citizen of the
United States or of an alien lawfully admitted for permanent residence;
and
(B) the Attorney General is satisfied that refusal of admission of the
immigrant would result in extreme hardship to the citizen or lawfully
resident spouse or parent of the immigrant.
(3) No court has jurisdiction to review a decision of the Attorney General
about a waiver under paragraph (2) of this subsection.
189
(b) FALSE CLAIM OF CITIZENSHIP.—An alien is ineligible for a visa or
admission to the United States if the alien falsely claims, or has falsely
claimed, to be a citizen of the United States for any purpose or benefit
under any federal or state law.
(c) SUBJECT TO CIVIL PENALTY FOR DOCUMENT FRAUD.—(1) An alien
is ineligible for a visa or admission to the United States if the alien is the
subject of a final order for violation of section 10125(b) of this title.
(2) The Attorney General may waive paragraph (1) of this subsection for
humanitarian purposes or to ensure family unity if—
(A) the alien—
(i) is lawfully admitted for permanent residence, proceeded tem-
porarily abroad voluntarily and not under an order of deportation
or removal, and is otherwise admissible to the United States as
a returning resident under section 4311(b) of this title; or
(ii) is seeking admission or readjustment of status under section
4102(d)(6) or (7) or 4103 of this title;
(B) a previous civil monetary penalty was not imposed against the
alien under section 10125 of this title; and
(C) the offense was committed only to assist, aid, or support the
alien’s spouse or child (and no other individual).
(3) No court has jurisdiction to review a decision of the Attorney General
about a waiver under paragraph (2) of this subsection.
§ 6304. Health
(a) COMMUNICABLE DISEASES.—(1) An alien is ineligible for a visa or
admission to the United States if the alien is found, under regulations pre-
scribed by the Secretary of Health and Human Services, to have a commu-
nicable disease of public health significance or to be infected with the etio-
logic agent for acquired immune deficiency syndrome.
(2)(A) The Attorney General may waive paragraph (1) of this subsection
for an alien who—
(i) is the spouse, unmarried son, unmarried daughter, or adopted
child of a citizen of the United States, of an alien lawfully admitted
for permanent residence, or of an alien who has been issued an immi-
grant visa; or
(ii) has a son or daughter who is a citizen of the United States, an
alien lawfully admitted for permanent residence, or an alien who has
been issued an immigrant visa.
(B) A waiver under this paragraph is subject to any conditions, including
the filing of a bond, that the Attorney General may prescribe by regulation
after consultation with the Secretary.
190
(b) FAILURE TO BE VACCINATED.—(1) An alien is ineligible for a visa
or admission to the United States if the alien—
(A) is seeking admission as an immigrant or adjustment of status
to the status of an alien lawfully admitted for permanent residence;
and
(B) has failed to present documentation of having received—
(i) vaccination against vaccine-preventable diseases, including at
least the following diseases: mumps, measles, rubella, polio, teta-
nus and diphtheria toxoids, pertussis, influenza type B, and hepa-
titis B; and
(ii) any other vaccinations against vaccine-preventable diseases
recommended by the Advisory Committee for Immunization Prac-
tices.
(2) The Attorney General may waive paragraph (1) of this subsection for
an alien if—
(A) the alien receives vaccination against the vaccine-preventable dis-
eases for which the alien has failed to present documentation of pre-
vious vaccination;
(B) a civil surgeon, medical officer, or panel physician (as those
terms are defined by section 34.2 of title 42 of the Code of Federal
Regulations) certifies, under regulations the Secretary may prescribe,
that vaccination of the alien would not be medically appropriate; or
(C) under circumstances the Attorney General provides by regula-
tion, the requirement of a vaccination would be contrary to the alien’s
religious beliefs or moral convictions.
(c) PHYSICAL OR MENTAL DISORDERS.—(1) An alien is ineligible for a
visa or admission to the United States if the alien is found, under regula-
tions prescribed by the Secretary in consultation with the Attorney Gen-
eral—
(A) to have a physical or mental disorder and behavior associated
with the disorder that may pose, or has posed, a threat to the property,
safety, or welfare of the alien or others; or
(B) to have had a physical or mental disorder and a history of be-
havior associated with the disorder, which behavior has posed a threat
to the property, safety, or welfare of the alien or others and which be-
havior is likely to recur or to lead to other harmful behavior.
(2) The Attorney General may waive paragraph (1) of this subsection for
any alien. A waiver under this paragraph is subject to any conditions, in-
cluding the filing of a bond, that the Attorney General may prescribe by
regulation after consultation with the Secretary.
191
(d) DRUG ABUSERS OR ADDICTS.—An alien is ineligible for a visa or ad-
mission to the United States if the alien is found, under regulations pre-
scribed by the Secretary, to be a drug abuser or addict.
§ 6305. Aliens accompanying aliens who are inadmissible for
health or infancy
An alien is ineligible for a visa or admission to the United States if—
(1) the alien is accompanying another alien who is inadmissible and
who is certified to be helpless from sickness, physical or mental disabil-
ity, or infancy under section 6104(d) of this title; and
(2) the alien’s protection or guardianship is required by the alien
who is certified to be helpless as described in clause (1) of this sub-
section.
§ 6306. Public charges
(a) GENERAL.—(1) An alien is ineligible for a visa or admission to the
United States if, in the opinion of the consular officer at the time of appli-
cation for a visa, or in the opinion of the Attorney General at the time of
application for admission or adjustment of status, the alien is likely at any
time to become a public charge.
(2)(A) In determining whether an alien is likely to become a public
charge, the consular officer or the Attorney General shall consider, at a
minimum, the alien’s—
(i) age;
(ii) health;
(iii) family status;
(iv) assets, resources, and financial status; and
(v) education and skills.
(B) In addition to the factors in subparagraph (A) of this paragraph, the
consular officer or the Attorney General may also consider any affidavit of
support under section 6331 of this title.
(b) FAMILY-SPONSORED IMMIGRANTS.—An alien seeking admission or
adjustment of status under a visa number issued under section 4102(d) (6),
(7), or (8) or 4103 of this title is ineligible for a visa or admission under
subsection (a) of this section unless—
(1) the alien has obtained—
(A) status as a spouse or child of a United States citizen under
section 4301(a) (2), (3), or (4) of this title; or
(B) classification under section 4301(a)(6) or (7) of this title;
or
(2) the person petitioning for the alien’s admission (including any
additional sponsor required under section 6331(b)(5) of this title) has
executed an affidavit of support described in section 6331 for the alien.
192
(c) CERTAIN EMPLOYMENT-BASED IMMIGRANTS.—An alien seeking ad-
mission or adjustment of status under a visa number issued under section
4104 of this title based on a classification petition filed by a relative of the
alien (or by an entity in which the relative has a significant ownership inter-
est) is ineligible for a visa or admission under subsection (a) of this section
unless the relative has executed an affidavit of support described in section
6331 of this title for the alien.
(d) ADMISSION ON BOND.—(1) The Attorney General may admit an alien
who is ineligible for a visa or admission under subsection (a) of this section
if—
(A) the alien is otherwise admissible and files a bond or undertaking
approved by the Attorney General; and
(B) the requirements for an affidavit of support and the attribution
of sponsor’s income and resources under section 6331 of this title are
met.
(2) A bond or undertaking under this subsection shall—
(A) be in an amount and contain conditions the Attorney General
prescribes; and
(B) be for the benefit of the United States, States, territories and
possessions of the United States, and political subdivisions, holding
them harmless against the alien’s becoming a public charge.
(3) When the alien permanently departs from the United States, is natu-
ralized, or dies, the bond terminates and the security held to secure per-
formance, except to the extent forfeited for a violation of the bond, shall
be returned to the person providing it or to the person’s legal representative.
(4) The Attorney General may bring a civil action on the bond in the
name of the United States for the benefit of the United States or of a State,
territory, possession, or political subdivision in which the alien becomes a
public charge, regardless of whether a demand for payment of public ex-
penses has been made.
§ 6307. Stowaways
An alien who is a stowaway is ineligible for a visa or admission to the
United States.
§ 6308. Encouraging others to enter illegally
(a) GENERAL.—An alien is ineligible for a visa or admission to the Unit-
ed States if the alien at any time knowingly encouraged, induced, or assisted
another alien to enter or attempt to enter the United States in violation of
law.
(b) NONAPPLICATION.—Subsection (a) of this section does not apply to
an alien who—
193
(1) is an eligible immigrant under section 301(b) of the Immigration
Act of 1990 (Public Law 101–649, 104 Stat. 5029);
(2) was physically present in the United States on May 5, 1988;
(3) is seeking—
(A) admission as an immediate relative;
(B) admission under section 4103(c) of this title (including
under section 112 of the Immigration Act of 1990 (Public Law
101–649, 104 Stat. 4987)); or
(C) benefits under section 301(a) of that Act (104 Stat. 5029);
and
(4) before May 5, 1988, encouraged, induced, or assisted only the
alien’s spouse, parent, son, or daughter (and no other individual) to
enter the United States in violation of law.
(c) WAIVERS.—The Attorney General may waive subsection (a) of this
section for humanitarian purposes, to ensure family unity, or when it is oth-
erwise in the public interest, for an alien who—
(1)(A) is lawfully admitted for permanent residence, proceeded tem-
porarily abroad voluntarily and not under an order of removal, and is
otherwise admissible as a returning resident under section 4311(b) of
this title; or
(B) is seeking admission or adjustment of status as an immediate
relative or immigrant under section 4103 (b), (c), or (d) of this title;
and
(2) has encouraged, induced, or assisted only an individual who at
the time of that action was the alien’s spouse, parent, son, or daughter
(and no other individual) to enter the United States in violation of law.
§ 6309. Criminal and immoral acts
(a) GENERAL.—Each of the following aliens is ineligible for a visa or ad-
mission to the United States:
(1) An alien who has been convicted of, admits having committed,
or admits having committed acts that are the essential elements of, an
offense involving moral turpitude (except a purely political offense) or
an attempt or conspiracy to commit such an offense, but this clause
does not apply to an alien who has committed only one offense if—
(A) the alien committed the offense when less than 18 years of
age, and committed the offense and was released from any con-
finement to a correctional institution imposed for the offense more
than 5 years before applying for a visa or other documentation
and for admission; or
(B) the maximum imprisonment for the offense was not more
than one year and the alien was not sentenced to more than 6
194
months, regardless of the extent to which the sentence was ulti-
mately executed.
(2) An alien who has been convicted of, admits having committed,
or admits having committed acts that are the essential elements of, a
violation of, or an attempt or conspiracy to violate, a law or regulation
of a State, the United States, or a foreign country related to a con-
trolled substance (as defined in section 102 of the Controlled Sub-
stances Act (21 U.S.C. 802)).
(3) An alien who a consular officer or an immigration officer knows
or reasonably believes is or has been—
(A) unlawfully trafficking in a controlled substance (as defined
in section 102 of the Controlled Substances Act (21 U.S.C. 802));
or
(B) knowingly assisting, conspiring, or colluding with others in
unlawfully trafficking in such a controlled substance.
(4) An alien who has been convicted of at least 2 offenses (except
purely political offenses) for which the total sentences to confinement
were at least 5 years, regardless of whether—
(A) the convictions were in a single trial;
(B) the offenses arose from a single scheme of misconduct; or
(C) the offenses involved moral turpitude.
(5) An alien who—
(A) is coming to the United States only, principally, or inciden-
tally to engage in prostitution, or has engaged in prostitution
within 10 years of the date of applying for a visa, admission, or
adjustment of status;
(B)(i) procures or attempts to procure individuals for prostitu-
tion;
(ii) within that 10-year period, procured or attempted to pro-
cure or to import individuals for prostitution; or
(iii) receives or, within that 10-year period, received any part of
the proceeds of prostitution; or
(C) is coming to the United States to engage in any other un-
lawful commercialized vice, whether or not related to prostitution.
(6) An alien who is coming to the United States to practice polyg-
amy.
(7) An alien—
(A) who has committed in the United States at any time—
(i) a felony;
(ii) a crime of violence (as defined in section 16 of title 18);
or
195
(iii) an offense of reckless driving or driving while intoxi-
cated or under the influence of alcohol or a prohibited sub-
stance if the offense involved personal injury to another;
(B) for whom immunity from criminal jurisdiction was exercised
for that offense;
(C) who as a consequence of the offense and exercise of immu-
nity has left the United States; and
(D) who subsequently has not submitted completely to the juris-
diction of the court in the United States having jurisdiction of
that offense.
(8) An alien who at any time has voted in violation of any federal,
state, or local constitutional provision, statute, ordinance, or regulation.
(b) WAIVERS.—(1) Except as provided in paragraph (2) of this sub-
section, the Attorney General may waive subsection (a) (1), (4), (5), or (7)
of this section, or subsection (a)(2) of this section for a single offense of
simple possession of not more than 30 grams of marijuana, for an immi-
grant if—
(A)(i) the Attorney General is satisfied that—
(I) the immigrant is inadmissible only under subsection
(a)(5)(A) or (B) of this section or the activities for which the im-
migrant is inadmissible occurred more than 15 years before the
date of the immigrant’s application for a visa, admission, or ad-
justment of status;
(II) the immigrant’s admission would not be contrary to the
welfare, safety, or security of the United States; and
(III) the immigrant has been rehabilitated; or
(ii) the immigrant is the spouse, parent, son, or daughter of a citizen
of the United States or of an alien lawfully admitted for permanent
residence and the Attorney General is satisfied that the immigrant’s in-
admissibility would result in extreme hardship to the citizen or to the
alien lawfully admitted for permanent residence; and
(B) the Attorney General consents (subject to conditions and proce-
dures the Attorney General may prescribe by regulation) to the immi-
grant’s applying or reapplying for a visa, admission, or adjustment of
status.
(2) A waiver may not be granted under this subsection for an immigrant
who—
(A) has been convicted of, or has admitted committing acts that con-
stitute, murder or a criminal act involving torture or an attempt or
conspiracy to commit murder or a criminal act involving torture; or
196
(B) previously has been lawfully admitted for permanent residence
if the immigrant—
(i) has been convicted of an aggravated felony after the date of
that admission; or
(ii) has not resided lawfully and continuously in the United
States for at least 7 years immediately before the date of initiation
of a proceeding to remove the alien from the United States.
(3) No court has jurisdiction to review a decision of the Attorney General
about a waiver under this subsection.
§ 6310. National security
(a) GENERAL.—An alien is ineligible for a visa or admission to the Unit-
ed States if a consular officer or the Attorney General knows or reasonably
believes that the alien seeks admission to engage only, principally, or inci-
dentally in—
(1) an activity to violate a law of the United States related to espio-
nage or sabotage;
(2) an activity to violate or evade a law prohibiting the export from
the United States of goods, technology, or sensitive information;
(3) an activity a purpose of which is to oppose, control, or overthrow
the Federal Government by force, violence, or other unlawful means;
or
(4) any other unlawful activity.
(b) TERRORIST ACTIVITIES.—(1) In this subsection—
(A) ‘‘engage in terrorist activity’’ means to commit, in an individual
capacity or as a member of an organization, a terrorist activity or an
act that the actor knows or reasonably should know gives material sup-
port to an individual, organization, or government in conducting a ter-
rorist activity at any time, including—
(i) preparing or planning a terrorist activity;
(ii) gathering information on potential targets for terrorist ac-
tivity;
(iii) providing any type of material support, including a safe
house, transportation, communications, money, false documenta-
tion or identification, weapons, explosives, or training, to an indi-
vidual the actor knows or reasonably should know has committed
or plans to commit a terrorist activity;
(iv) soliciting money or any other thing of value for a terrorist
activity or a terrorist organization; or
(v) soliciting an individual for membership in a terrorist organi-
zation or terrorist government or to engage in a terrorist activity.
197
(B) ‘‘representative’’ means an officer, official, or spokesperson of an
organization, and a person who directs, counsels, commands, or induces
an organization or its members to engage in terrorist activity.
(C) ‘‘terrorist activity’’ means an activity that is unlawful under the
laws of the place where it is committed or that, if committed in the
United States, would be unlawful under the laws of the United States
or any State, and that involves—
(i) highjacking or sabotaging a vessel, aircraft, vehicle, or other
conveyance;
(ii) seizing or detaining, and threatening to kill, injure, or con-
tinue to detain, another individual to compel a third person (in-
cluding a governmental entity) to do or abstain from doing an act
as an explicit or implicit condition for the release of the individual
seized or detained;
(iii) a violent attack on an internationally protected person (as
defined in section 1116(b)(4) of title 18) or on the liberty of such
a person;
(iv) an assassination;
(v) the use, with intent to endanger the safety of an individual
or to cause substantial damage to property, of a biological agent,
chemical agent, nuclear weapon or device, or, except for mere per-
sonal monetary gain, an explosive or firearm; or
(vi) a threat, attempt, or conspiracy to do an activity described
in this paragraph.
(2) An alien is ineligible for a visa or admission to the United States if—
(A) the alien has engaged in a terrorist activity;
(B) a consular officer or the Attorney General knows or reasonably
believes that the alien is engaged, or is likely to engage after admission,
in terrorist activity;
(C) the alien, in circumstances indicating an intention to cause death
or serious bodily harm, has at any time incited terrorist activity;
(D) the alien is a representative of a foreign terrorist organization
(as designated by the Secretary of State under section 219 of the Im-
migration and Nationality Act); or
(E) the alien is a member of a foreign terrorist organization (as des-
ignated by the Secretary under section 219 of the Immigration and Na-
tionality Act) that the alien knows or should have known is a terrorist
organization.
(3) An alien who is an officer, official, representative, or spokesperson of
the Palestine Liberation Organization is deemed under paragraph (1) of this
subsection to be engaged in terrorist activity.
198
(c) FOREIGN POLICY.—(1) An alien is ineligible for a visa or admission
to the United States if the Secretary of State reasonably believes that the
alien’s admission or proposed activities in the United States would have po-
tentially serious adverse foreign policy consequences for the United States.
(2) An alien who is an official of a government of a foreign country or
a purported government, or who is a candidate for election to a government
office of a foreign country during the period immediately before the election
for that office, may not be considered inadmissible or subject to restrictions
or conditions on entry under paragraph (1) of this subsection only because
of the alien’s past, current, or expected beliefs, statements, or associations,
if the beliefs, statements, or associations would be lawful in the United
States.
(3) An alien not described in paragraph (2) of this subsection may not
be considered inadmissible or subject to restrictions or conditions on entry
under paragraph (1) of this subsection because of the alien’s past, current,
or expected beliefs, statements, or associations, if the beliefs, statements, or
associations would be lawful in the United States, unless the Secretary per-
sonally decides that the alien’s admission would compromise a compelling
foreign policy interest of the United States.
(4) If the Secretary decides under paragraph (3) of this subsection that
an alien’s admission would compromise a compelling foreign policy interest
of the United States, the Secretary shall give timely notice of the alien’s
identity and the reasons for the decision to the chairmen of the Committees
on the Judiciary and International Relations of the House of Representa-
tives and the Committees on the Judiciary and Foreign Relations of the
Senate.
(d) MEMBERSHIP IN TOTALITARIAN PARTY.—(1) An immigrant is ineli-
gible for a visa or admission to the United States if the immigrant is or
has been a member of or affiliated with the Communist or any other domes-
tic or foreign totalitarian party, including a subdivision or affiliate of that
party.
(2) Paragraph (1) of this subsection does not apply to an immigrant be-
cause of membership or affiliation if the immigrant satisfies the consular
officer when applying for a visa, or the Attorney General when applying for
admission, that the membership or affiliation is or was—
(A) involuntary;
(B) only before the alien’s 16th birthday;
(C) only by operation of law; or
(D) only to obtain employment, food rations, or other essentials of
living and the membership or affiliation is or was necessary to obtain
the employment, rations, or essentials.
199
(3) Paragraph (1) of this subsection does not apply to an immigrant be-
cause of membership or affiliation if the immigrant satisfies the consular
officer when applying for a visa, or the Attorney General when applying for
admission, that—
(A) the membership or affiliation ended at least—
(i) 2 years before the date of applying; or
(ii) 5 years before the date of applying, if the membership or
affiliation was with the party controlling the government of a for-
eign country that is a totalitarian dictatorship as of that date; and
(B) the immigrant is not a threat to the security of the United
States.
(4) The Attorney General may waive paragraph (1) of this subsection for
an immigrant for humanitarian purposes, to ensure family unity, or when
it is otherwise in the public interest, if the immigrant—
(A) is the parent, spouse, son, daughter, brother, or sister of a citi-
zen of the United States or the spouse, son, or daughter of an alien
lawfully admitted for permanent residence; and
(B) is not a threat to the security of the United States.
§ 6311. Participation in Nazi persecution or genocide
An alien is ineligible for a visa or admission to the United States if the
alien—
(1) at any time during the period from March 23, 1933, through
May 8, 1945, ordered, incited, assisted, or otherwise participated in the
persecution of an individual on account of race, religion, national ori-
gin, or political opinion, under the direction of, or in association with—
(A) the Nazi government of Germany;
(B) any government in an area occupied by the military forces
of the Nazi government of Germany;
(C) any government established with the assistance or coopera-
tion of the Nazi government of Germany; or
(D) any government that was an ally of the Nazi government
of Germany; or
(2) engaged in conduct that is defined as genocide under the Inter-
national Convention on the Prevention and Punishment of Genocide.
§ 6312. Ineligible for citizenship
An immigrant is ineligible for a visa or admission to the United States
if the immigrant is permanently ineligible for citizenship.
§ 6313. Former citizens who renounced citizenship to avoid
taxation
An alien is ineligible for a visa or admission to the United States if—
200
(1) the alien is a former citizen of the United States who after Sep-
tember 30, 1996, officially renounces United States citizenship; and
(2) the Attorney General determines that the alien renounced United
States citizenship to avoid taxation by the Federal Government.
§ 6314. Evasion of military service
An alien is ineligible for a visa or admission to the United States if the
alien departed from or remained outside the United States to avoid or evade
training or service in the armed forces of the United States during war or
a period declared by the President to be a national emergency, unless the
alien was a nonimmigrant at the time of the departure and is seeking to
reenter the United States as a nonimmigrant.
§ 6315. Student visa abusers
An alien who, after November 28, 1996, acquires the status of a non-
immigrant classified under section 2310(a)(1) of this title (including an
alien whose status is extended after that date) and violates a term or condi-
tion of that status under section 2310(c) is ineligible for a visa or admission
to the United States until the alien has been outside the United States for
a continuous period of 5 years after the date of the violation.
§ 6316. International child abduction
(a) GENERAL.—If, after a court in the United States has granted to an
individual the custody of a child who is a citizen of the United States, an
alien detains or withholds custody of the child outside the United States
from the individual granted custody by the court, the alien is ineligible for
a visa or admission to the United States until the child is surrendered to
the individual granted custody by the court.
(b) NONAPPLICATION.—Subsection (a) of this section does not apply as
long as the child is located in a foreign country whose government is a party
to the Hague Convention on the Civil Aspects of International Child Abduc-
tion.
§ 6317. Aliens leaving Guam, Puerto Rico, or the Virgin Is-
lands
An alien who leaves Guam, Puerto Rico, or the Virgin Islands and is com-
ing to the continental United States or another place under the jurisdiction
of the United States is subject to this chapter (except section 6301(a)). An
alien described in this section who is inadmissible shall be removed imme-
diately as provided in section 6717 of this title.
§ 6318. Failure to attend removal proceeding
An alien is ineligible for a visa or admission to the United States if the
alien—
201
(1) without reasonable cause fails or refuses to attend or remain in
attendance at a proceeding to determine the alien’s inadmissibility or
deportability; and
(2) seeks admission to the United States within 5 years after the
alien’s subsequent departure or removal.
§ 6319. Aliens previously removed
(a) CERTAIN ALIENS PREVIOUSLY REMOVED.—(1) An alien is ineligible
for a visa or admission to the United States if the alien—
(A) has been ordered removed under section 6102(c) or 6105 of this
title or at the end of a proceeding under section 6704 of this title initi-
ated on the alien’s arrival in the United States; and
(B) seeks admission—
(i) within 5 years after the date of that removal;
(ii) within 20 years after the date of that removal if it was a
2d or subsequent removal; or
(iii) at any time if the alien has been convicted of an aggravated
felony.
(2) An alien not described in paragraph (1) of this subsection is ineligible
for a visa or admission to the United States if the alien—
(A) has been ordered removed under any law or has departed the
United States while an order of removal was outstanding; and
(B) seeks admission—
(i) within 10 years after the date of that departure or removal;
(ii) within 20 years after the date of that departure or removal
if it was a 2d or subsequent removal; or
(iii) at any time if the alien has been convicted of an aggravated
felony.
(3) Paragraphs (1) and (2) of this subsection do not apply to an alien
seeking admission within a period if, prior to the date of the alien’s re-
embarkation at a place outside the United States or attempt to be admitted
from foreign contiguous territory, the Attorney General has consented to the
alien’s reapplying for admission.
(b) ALIENS UNLAWFULLY PRESENT.—(1) An alien not lawfully admitted
for permanent residence is ineligible for a visa or admission to the United
States if the alien—
(A)(i) was unlawfully present in the United States for a period of
more than 180 days but less than one year;
(ii) voluntarily departed the United States (whether or not under
section 6714(a) of this title) before the initiation of a proceeding under
section 6102(c), 6105, or 6704 of this title; and
202
(iii) seeks admission within 3 years after the date of that departure
or removal; or
(B)(i) has been unlawfully present in the United States for at least
one year; and
(ii) seeks admission within 10 years after the date of the alien’s de-
parture or removal.
(2) Under paragraph (1) of this subsection, an alien is deemed to be un-
lawfully present in the United States if the alien is present in the United
States after the expiration of the period of stay authorized by the Attorney
General or is present in the United States without being admitted or pa-
roled.
(3) In determining the period of unlawful presence in the United States
under paragraph (1) of this subsection—
(A) no period before April 1, 1997, may be included; and
(B) no period may be included during which the alien—
(i) is under 18 years of age;
(ii) has a bona fide application for asylum pending under sec-
tion 5106 of this title, unless during that period the alien was em-
ployed without authorization in the United States; or
(iii) is a beneficiary of family unity protection under section 301
of the Immigration Act of 1990 (Public Law 101–649, 104 Stat.
5029).
(4) Paragraph (1) of this subsection does not apply to an alien who would
be described in section 6302(b) of this title if ‘‘violation of the terms of the
alien’s nonimmigrant visa’’ were substituted for ‘‘unlawful entry into the
United States’’ in section 6302(b)(3).
(5) The calculation of the period of time specified in paragraph (1)(A)
of this subsection shall be tolled (for not more than 120 days) during a pe-
riod that an application described in clause (B) of this paragraph is pending
if the alien—
(A) has been lawfully admitted or paroled into the United States;
(B) has filed a nonfrivolous application for a change or extension of
status before the date of expiration of the period of stay authorized by
the Attorney General; and
(C) has not been employed without authorization in the United
States before or during the pendency of that application.
(6)(A) The Attorney General has sole discretion to waive paragraph (1)
of this subsection for an immigrant if—
(i) the immigrant is the spouse, son, or daughter of a citizen of the
United States or of an alien lawfully admitted for permanent residence;
and
203
(ii) the Attorney General is satisfied that refusal of admission of the
immigrant would result in extreme hardship to the citizen or lawfully
resident spouse or parent of the immigrant.
(B) No court has jurisdiction to review a decision of the Attorney General
about a waiver under subparagraph (A) of this paragraph.
(c) ALIENS UNLAWFULLY PRESENT AFTER PREVIOUS IMMIGRATION VIO-
LATIONS.—(1) An alien is ineligible for a visa or admission to the United
States if the alien—
(A)(i) has been unlawfully present in the United States for a total
period of more than one year; or
(ii) has been ordered removed under any law; and
(B) enters or attempts to reenter the United States without being
admitted.
(2) Paragraph (1) of this subsection does not apply to an alien seeking
admission more than 10 years after the date of the alien’s last departure
from the United States if, prior to the alien’s reembarkation at a place out-
side the United States or attempt to be readmitted from foreign contiguous
territory, the Attorney General has consented to the alien’s reapplying for
admission.
SUBCHAPTER II—RELATED PROVISIONS
§ 6331. Sponsor’s affidavit of support
(a) DEFINITION.—In this section, ‘‘federal poverty line’’ means the level
of income equal to the official poverty line (as defined by the Director of
the Office of Management and Budget, as revised annually by the Secretary
of Health and Human Services, in accordance with section 673(2) of the
Omnibus Budget Reconciliation Act of 1981 (42 U.S.C. 9902(2))) that is
applicable to a family of the size involved.
(b) ELIGIBLE SPONSORS.—(1) An individual may sponsor an alien by
executing an affidavit of support under this section if the individual—
(A) is a national of the United States or an alien lawfully admitted
for permanent residence;
(B) is at least 18 years of age;
(C) is domiciled in a State, the District of Columbia, or a territory
or possession of the United States;
(D) is petitioning for admission of the alien under section 4301 or
4302 of this title; and
(E) demonstrates (as provided in subsection (i) of this section) the
means to maintain an annual income equal to at least 125 percent of
the federal poverty line.
204
(2) An individual who does not meet the requirement of paragraph (1)(E)
of this subsection may still be a sponsor if the individual accepts joint and
several liability with an individual under paragraph (5) of this subsection.
(3) An individual who does not meet the requirement of paragraph (1)(E)
of this subsection may still be a sponsor if the individual—
(A) is on active duty (other than active duty for training) in the
armed forces of the United States;
(B) is petitioning for admission of the alien under section 4301 or
4302 of this title as the spouse or child of the individual; and
(C) demonstrates (as provided in subsection (i) of this section) the
means to maintain an annual income equal to at least 100 percent of
the federal poverty line.
(4) An individual who does not meet the requirement of paragraph (1)(D)
of this subsection may still be a sponsor if the individual—
(A)(i) is the relative of the sponsored alien who filed a classification
petition for the sponsored alien as an employment-based immigrant
under section 4104 of this title; or
(ii) has a significant ownership interest in the entity that filed the
petition; and
(B)(i) demonstrates (as provided in subsection (i) of this section) the
means to maintain an annual income equal to at least 125 percent of
the federal poverty line; or
(ii) does not meet the requirement of paragraph (1)(E) of this sub-
section but accepts joint and several liability with an individual under
paragraph (5) of this subsection.
(5) An individual who does not meet the requirement of paragraph (1)(D)
of this subsection may still be a sponsor if the individual—
(A) accepts joint and several liability with a petitioning sponsor
under paragraph (2) of this subsection or a relative of an employment-
based immigrant under paragraph (4) of this subsection; and
(B) demonstrates (as provided in subsection (i) of this section) the
means to maintain an annual income equal to at least 125 percent of
the federal poverty line.
(c) ENFORCEABILITY OF AFFIDAVIT AS CONTRACT.—(1) A consular offi-
cer or the Attorney General may not accept an affidavit of support to estab-
lish that an alien is not inadmissible as a public charge under section 6306
of this title, unless the affidavit is executed by a sponsor of the alien as
a contract—
(A) in which the sponsor agrees to provide support to maintain the
sponsored alien at an annual income equal to at least 125 percent of
205
the federal poverty line during the period in which the affidavit is en-
forceable;
(B) that is legally enforceable against the sponsor by the sponsored
alien, the Federal Government, a State or political subdivision of a
State, or any other entity that provides any means-tested public bene-
fit, consistent with this section; and
(C) in which the sponsor agrees to submit to the jurisdiction of any
federal or state court for the purpose of a civil action brought under
subsection (d)(2) of this section.
(2) An affidavit of support is enforceable with respect to benefits provided
for an alien before the earlier of—
(A) the date the alien is naturalized as a citizen of the United
States; or
(B) the termination date provided in paragraph (3) of this sub-
section.
(3)(A) An affidavit of support is not enforceable after the alien—
(i) has worked 40 qualifying quarters of coverage as defined under
title II of the Social Security Act (42 U.S.C. 401 et seq.) or can be
credited with those qualifying quarters as provided in subparagraph
(B) of this paragraph; and
(ii) in the case of a qualifying quarter creditable for a period begin-
ning after December 31, 1996, did not receive any federal means-tested
public benefit (as provided in section 15124 of this title) during that
period.
(B) Except as provided in subparagraph (C) of this paragraph, in deter-
mining for purposes of this section the number of qualifying quarters of cov-
erage under title II of the Social Security Act (42 U.S.C. 401 et seq.), an
alien shall be credited with—
(i) all the qualifying quarters worked by a parent of the alien while
the alien was under 18 years of age; and
(ii) all the qualifying quarters worked by a spouse of the alien during
their marriage if the alien remains married to the spouse or the spouse
is deceased.
(C) A qualifying quarter of coverage that is creditable under title II of
the Social Security Act (42 U.S.C. 401 et seq.) for a period beginning after
December 31, 1996, may not be credited to an alien under subparagraph
(B) of this paragraph if the parent or spouse received a federal means-test-
ed public benefit (as provided in section 15124 of this title) during the pe-
riod for which the qualifying quarter is credited.
(D) The Attorney General shall ensure that appropriate information
about the application of this paragraph (3) is provided to the system for
206
alien verification of eligibility (SAVE) described in section 1137(d)(3) of the
Social Security Act (42 U.S.C. 1320b–7(d)(3)).
(d) REIMBURSEMENT OF GOVERNMENT EXPENSES.—(1)(A) On notifica-
tion that a sponsored alien has received any means-tested public benefit, the
appropriate nongovernmental entity that provided the benefit or the appro-
priate entity of the Federal Government, a State, or a political subdivision
of a State shall request reimbursement by the sponsor in an amount equal
to the unreimbursed costs of the benefit.
(B) The Attorney General, in consultation with the heads of other appro-
priate federal departments, agencies, and instrumentalities shall prescribe
regulations necessary to carry out subparagraph (A) of this paragraph.
(2)(A) If, within 45 days after a request for reimbursement under para-
graph (1)(A) of this subsection, the appropriate entity has not received a
response from the sponsor indicating a willingness to commence payment,
a civil action may be brought against the sponsor pursuant to the affidavit
of support.
(B) If the sponsor fails to comply with the repayment terms established
by the appropriate entity, the entity may bring a civil action against the
sponsor pursuant to the affidavit of support.
(C) A civil action under this paragraph must be brought within 10 years
after the date on which the sponsored alien last received any means-tested
public benefit to which the affidavit of support applies.
(3) If the appropriate entity under paragraph (1)(A) of this subsection
requests reimbursement from the sponsor or brings a civil action against the
sponsor pursuant to the affidavit of support, the appropriate entity may ap-
point or hire another person to act on behalf of the entity acting under the
authority of law for purposes of collecting any amounts owed.
(e) BENEFITS NOT SUBJECT TO REIMBURSEMENT.—The requirement for
reimbursement under this section does not apply to—
(1) medical assistance described in section 15121(b)(1)(A) of this
title or assistance described in section 15142(b)(1) of this title;
(2) short-term, non-cash, in-kind emergency disaster relief;
(3) assistance or benefits under the National School Lunch Act (42
U.S.C. 1751 et seq.);
(4) assistance or benefits under the Child Nutrition Act of 1966 (42
U.S.C. 1771 et seq.);
(5) public health assistance (except assistance under title XIX of the
Social Security Act (42 U.S.C. 1396 et seq.)) for immunizations with
respect to immunizable diseases and for testing and treatment of symp-
toms of communicable diseases whether or not those symptoms are
caused by a communicable disease;
207
(6) payments for foster care and adoption assistance under parts B
and E of title IV of the Social Security Act (42 U.S.C. 620 et seq.,
670 et seq.) for a parent or child, but only if the foster or adoptive
parent (or parents) of the child is a qualified alien as defined in section
15102(b) of this title;
(7) programs, services, or assistance (such as soup kitchens, crisis
counseling and intervention, and short-term shelter) specified by the
Attorney General, in the Attorney General’s sole and unreviewable dis-
cretion after consultation with the heads of appropriate federal depart-
ments, agencies, and instrumentalities, that—
(A) deliver in-kind services at the community level, including
through public or private nonprofit agencies;
(B) do not condition the provision of assistance, the amount of
assistance provided, or the cost of assistance provided on the indi-
vidual recipient’s income or resources; and
(C) are necessary for the protection of life or safety;
(8) programs of student assistance under titles IV, V, IX, and X of
the Higher Education Act of 1965 (20 U.S.C. 1070 et seq., 1101 et
seq., 1134 et seq., 1135 et seq., 42 U.S.C. 2751 et seq.), and titles
III, VII, and VIII of the Public Health Service Act (42 U.S.C. 241
et seq., 292 et seq., 296 et seq.);
(9) benefits under the Head Start Act (42 U.S.C. 9831 et seq.);
(10) means-tested programs under the Elementary and Secondary
Education Act of 1965 (20 U.S.C. 6301 et seq.); or
(11) benefits under the Job Training Partnership Act (29 U.S.C.
1501 et seq.).
(f) REMEDIES.—Remedies available to enforce an affidavit of support
under this section include the remedies described in sections 3201, 3203,
3204, and 3205 of title 28, an order for specific performance and payment
of legal fees and other costs of collection, and corresponding remedies avail-
able under state law. A federal department, agency, or instrumentality may
seek to collect amounts owed under this section as provided in subchapter
II of chapter 37 of title 31.
(g) JURISDICTION.—A civil action to enforce an affidavit of support exe-
cuted under this section may be brought against the sponsor in any appro-
priate court by—
(1) a sponsored alien, with respect to financial support; or
(2) the appropriate entity of the Federal Government, a State or po-
litical subdivision of a State, or any other nongovernmental entity
under subsection (d)(2) of this section, with respect to reimbursement.
208
(h) NOTIFICATION OF CHANGE OF ADDRESS.—(1) The sponsor shall no-
tify the Attorney General and the State in which the sponsored alien is cur-
rently a resident within 30 days of any change of address of the sponsor
during the period in which an affidavit of support is enforceable.
(2) After notice and an opportunity for a hearing, a person found to have
violated paragraph (1) of this subsection is liable to the Federal Govern-
ment for a civil penalty of—
(A) at least $250 but not more than $2,000; or
(B) at least $2,000 but not more than $5,000, if the failure occurs
with knowledge that the sponsored alien has received any means-tested
public benefits (other than benefits described in section 15121(b) (1)–
(3), 15124(b), or 15142(b) of this title).
(3) The Attorney General shall enforce paragraph (2) of this subsection
under appropriate regulations.
(i) DEMONSTRATION OF MEANS TO MAINTAIN INCOME.—(1) An individ-
ual may demonstrate under this section the means to maintain income by
providing—
(A) a certified copy of the individual’s federal income tax return for
the 3 most recent taxable years; and
(B) a written statement, executed under oath or as permitted under
penalty of perjury under section 1746 of title 28, that the copies are
certified copies of the returns.
(2) An alien may demonstrate the means to maintain income through
demonstration of significant assets of the sponsored alien or of the sponsor,
if the assets are available for the support of the sponsored alien.
(3) A reference to an annual income equal to at least a particular per-
centage of the federal poverty line means an annual income equal to at least
that percentage for a family unit of a size equal to—
(A) the number of members of the sponsor’s household, including
family and non-family dependents; plus
(B) the total number of other dependents and aliens sponsored by
that sponsor.
(4) The Secretary of State, or the Attorney General in the case of adjust-
ment of status, may provide that the demonstration under this subsection
applies only to the most recent taxable year.
(j) SPONSOR’S SOCIAL SECURITY ACCOUNT NUMBER.—(1) An affidavit
of support shall include the social security account number of each sponsor.
(2) The Attorney General shall develop an automated system to maintain
the social security account number data provided under paragraph (1) of
this subsection.
209
(3) The Attorney General shall submit an annual report to the Commit-
tees on the Judiciary of the House of Representatives and the Senate set-
ting forth—
(A) for the most recent fiscal year for which data are available, the
number of sponsors under this section and the number of sponsors in
compliance with the financial obligations of this section; and
(B) a comparison of those numbers with the numbers of the sponsors
for the prior fiscal year.
CHAPTER 65—DEPORTABILITY
SUBCHAPTER I—GROUNDS
Sec.
6501.
Inadmissible at time of admission or adjustment of status or in the United States ille-
gally.
6502.
Marriage fraud and failure to marry timely.
6503.
Public charges.
6504.
Failure to maintain status or satisfy conditions of admission.
6505.
Encouraging others to enter illegally.
6506.
Criminal offenses.
6507.
Failure to register and falsification of documents.
6508.
National security.
6509.
Participation in Nazi persecution or genocide.
SUBCHAPTER II—RELATED PROVISIONS
6531.
Nonapplication of certain grounds to special immigrants dependent on juvenile court.
SUBCHAPTER I—GROUNDS
§ 6501. Inadmissible at time of admission or adjustment of
status or in the United States illegally
(a) GENERAL.—An alien is deportable if the alien—
(1) was inadmissible at the time of admission or adjustment of sta-
tus under the law in effect at that time; or
(2) is present in the United States in violation of a law of the United
States.
(b) WAIVERS FOR CERTAIN MISREPRESENTATIONS.—(1) The Attorney
General may waive subsection (a)(1) of this section for an alien (except an
alien deportable under section 6509 of this title) who was inadmissible
under section 6303(a)(1) of this title at the time of admission if the alien—
(A) is the spouse, parent, son, or daughter of a citizen of the United
States or of an alien lawfully admitted for permanent residence;
(B) was in possession of an immigrant visa or equivalent documenta-
tion at the time of admission; and
(C) was otherwise admissible at the time of admission, except under
section 4311(a)(1) or 6301(a)(2) or (b) of this title as a direct result
of the fraud or misrepresentation.
(2) A waiver of deportation under paragraph (1) of this subsection for
fraud or misrepresentation is also a waiver of deportation based on other
210
grounds of inadmissibility directly resulting from the fraud or misrepresen-
tation.
§ 6502. Marriage fraud and failure to marry timely
(a) MARRIAGE FRAUD.—(1) An alien is deportable if—
(A) the alien obtained admission to the United States with an immi-
grant visa or other documentation obtained on the basis of a marriage
that was entered into less than 2 years before the alien’s admission and
that was judicially annulled or terminated within 2 years after the
alien’s admission; or
(B) the Attorney General is satisfied that the alien failed or refused
to fulfill the alien’s marital agreement which, in the opinion of the At-
torney General, was made to obtain admission to the United States as
an immigrant.
(2) Paragraph (1)(A) of this subsection does not apply to an alien who
satisfies the Attorney General that the marriage was not made to evade the
immigration laws.
(b) FAILURE TO MARRY WITHIN 90 DAYS.—An alien admitted to the
United States as a nonimmigrant classified under section 2309(a) of this
title, and a minor child of the alien accompanying or following to join the
alien, shall depart from the United States if, with 90 days after admission,
the alien does not marry the citizen who filed the petition for the alien
under section 2309(b) of this title. If they do not depart, they shall be re-
moved.
§ 6503. Public charges
An alien is deportable if the alien, within 5 years after admission, has
become a public charge from causes not affirmatively shown to have arisen
since admission.
§ 6504. Failure to maintain status or satisfy conditions of
admission
(a) NONIMMIGRANT STATUS NOT MAINTAINED.—(1) Subject to para-
graph (2) of this subsection, an alien admitted to the United States as a
nonimmigrant is deportable if the alien does not—
(A) maintain the nonimmigrant status under which the alien was ad-
mitted or which the alien acquired under section 9108 of this title; or
(B) comply with a condition of the nonimmigrant status.
(2) An alien admitted as a nonimmigrant classified under section 2301(1)
or 2302(1) of this title and not maintaining the nonimmigrant status under
which the alien was admitted is deportable only if—
(A) the Secretary of State approves; or
(B) the alien is deportable under section 6508 or 6509 of this title.
211
(b) NONCOMPLIANCE WITH HEALTH WAIVER CONDITIONS.—An alien
admitted to the United States as a result of a waiver under section 6304
of this title is deportable if the Secretary of Health and Human Services
certifies that the alien has not complied with a condition of the waiver.
(c) TERMINATION OF CONDITIONAL PERMANENT RESIDENT STATUS.—
An alien lawfully admitted for permanent residence on a conditional basis
under chapter 45 of this title is deportable if the status is terminated. How-
ever, this subsection does not apply if a waiver is granted under section
4506(b) of this title.
§ 6505. Encouraging others to enter illegally
(a) GENERAL.—An alien is deportable if the alien, before or within 5
years after admission, knowingly encouraged, induced, or assisted another
alien to enter or attempt to enter the United States in violation of law.
(b) NONAPPLICATION.—Subsection (a) of this section does not apply to
an alien who—
(1) is an eligible immigrant under section 301(b) of the Immigration
Act of 1990 (Public Law 101–649, 104 Stat. 5029);
(2) was physically present in the United States on May 5, 1988;
(3) is seeking—
(A) admission as an immediate relative;
(B) admission under section 4103(c) of this title (including
under section 112 of the Immigration Act of 1990 (Public Law
101–649, 104 Stat. 4987)); or
(C) benefits under section 301(a) of that Act (104 Stat. 5029);
and
(4) before May 5, 1988, encouraged, induced, or assisted only the
alien’s spouse, parent, son, or daughter (and no other individual) to
enter the United States in violation of law.
(c) WAIVERS.—The Attorney General may waive subsection (a) of this
section for humanitarian purposes, to ensure family unity, or when it is oth-
erwise in the public interest, for an alien who—
(1) is lawfully admitted for permanent residence; and
(2) has encouraged, induced, or assisted only an individual who at
the time of that action was the alien’s spouse, parent, son, or daughter
(and no other individual) to enter the United States in violation of law.
§ 6506. Criminal offenses
(a) GENERAL.—(1) An alien is deportable if—
(A)(i) the alien is convicted of an offense involving moral turpitude
committed within 5 years after admission or, if the alien is granted the
status of an alien lawfully admitted for permanent residence under sec-
tion 9101(e) of this title, within 10 years after admission; and
212
(ii) a sentence of one year or more may be imposed for the offense;
(B) the alien is convicted, after admission, of at least 2 offenses in-
volving moral turpitude not arising out of a single scheme of mis-
conduct, regardless of whether the convictions were in a single trial or
the alien was confined for the convictions;
(C) the alien is convicted, after admission, of an aggravated felony;
or
(D) the alien is convicted of violating section 758 of title 18.
(2) Paragraph (1) of this subsection does not apply to a conviction of an
alien if the President or the chief executive officer of a State has granted
the alien a full and unconditional pardon.
(b) CONTROLLED SUBSTANCES.—An alien is deportable if the alien—
(1) is convicted, after admission, of violating, or conspiring or at-
tempting to violate, a law or regulation of a State, the United States,
or a foreign country related to a controlled substance (as defined in
section 102 of the Controlled Substances Act (21 U.S.C. 802)), except
a single offense of possession for one’s own use of not more than 30
grams of marijuana; or
(2) is, or at any time after admission has been, a drug abuser or
addict.
(c) FIREARMS.—An alien is deportable if the alien, after admission, is
convicted under any law of purchasing, selling, offering for sale, exchanging,
using, owning, possessing, or carrying, or attempting or conspiring to pur-
chase, sell, offer for sale, exchange, use, own, possess, or carry, in violation
of law any weapon, part, or accessory that is a firearm or destructive device
(as defined in section 921(a) of title 18).
(d) DOMESTIC VIOLENCE AND RELATED OFFENSES.—(1) In this sub-
section—
(A) ‘‘offense of domestic violence’’ means a crime of violence (as de-
fined in section 16 of title 18) against an individual committed by—
(i) a current or former spouse of the victim;
(ii) an individual with whom the victim shares a child in com-
mon;
(iii) an individual with whom the victim is cohabiting or has
cohabited as a spouse;
(iv) an individual similarly situated to a spouse of the victim
under the domestic or family violence laws of the jurisdiction
where the offense occurs; or
(v) any other individual against a victim who is protected from
that individual’s acts under the domestic or family violence laws
213
of the United States or a State, Indian tribal government, or unit
of local government.
(B) ‘‘protection order’’ means an injunction issued for the purpose
of preventing violent or threatening acts of domestic violence, including
a temporary or final order issued by a civil or criminal court (except
a support or child custody order or provision) whether obtained by fil-
ing an independent action or as a pendente lite order in another pro-
ceeding.
(2) A alien is deportable if the alien, after admission—
(A) is convicted of an offense of domestic violence, stalking, child
abuse, child neglect, or child abandonment; or
(B) is enjoined under a protection order by a court and the court
determines that the alien has violated a part of the order that involves
protection against credible threats of violence, repeated harassment, or
bodily injury to an individual for whom the protection order was issued.
(e) UNLAWFUL VOTERS.—An alien is deportable if the alien at any time
has voted in violation of any federal, state, or local constitutional provision,
statute, ordinance, or regulation.
(f) MISCELLANEOUS.—An alien is deportable if the alien has been con-
victed at any time (and the judgment on the conviction has become final)
of violating or conspiring or attempting to violate—
(1) section 711 or 10151(a) of this title;
(2) chapter 37, 105, or 115 of title 18, if a term of imprisonment
of at least 5 years may be imposed;
(3) section 871 or 960 of title 18;
(4) the Trading with the Enemy Act (50 App. U.S.C. 1 et seq.); or
(5) the Military Selective Service Act (50 App. U.S.C. 451 et seq.).
§ 6507. Failure to register and falsification of documents
(a) ADDRESS NOTIFICATION.—An alien is deportable if the alien has not
complied with section 8104 of this title, unless the Attorney General is sat-
isfied that the noncompliance was reasonably excusable or not willful.
(b) FAILURE TO REGISTER AND FALSIFICATION OF DOCUMENTS.—An
alien is deportable if the alien has been convicted at any time of—
(1) violating section 10145 of this title;
(2) violating section 36(c) of the Alien Registration Act, 1940;
(3) violating, or attempting or conspiring to violate, the Foreign
Agents Registration Act of 1938 (22 U.S.C. 611 et seq.);
(4) violating the Act of August 1, 1956 (50 U.S.C. 851 et seq.) or
a regulation under that Act; or
(5) violating, or attempting or conspiring to violate, section 1546 of
title 18.
214
(c) FALSE CLAIM OF CITIZENSHIP.—An alien is deportable if the alien
falsely claims, or has falsely claimed, to be a citizen of the United States
for any purpose or benefit under any federal or state law.
(d) SUBJECT TO CIVIL PENALTY FOR DOCUMENT FRAUD.—(1) An alien
is deportable if the alien is the subject of a final order for violation of sec-
tion 10125(b) of this title.
(2) The Attorney General may waive paragraph (1) of this subsection if—
(A) the alien is lawfully admitted for permanent residence;
(B) a previous civil monetary penalty was not imposed against the
alien under section 10125 of this title; and
(C) the offense was committed only to assist, aid, or support the
alien’s spouse or child (and no other individual).
(3) No court has jurisdiction to review a decision of the Attorney General
about a waiver under paragraph (2) of this subsection.
§ 6508. National security
(a) GENERAL.—An alien is deportable if the alien has engaged or engages
in—
(1) an activity to violate a law of the United States related to espio-
nage or sabotage;
(2) an activity to violate or evade a law prohibiting the export from
the United States of goods, technology, or sensitive information;
(3) an activity a purpose of which is to oppose, control, or overthrow
the Federal Government by force, violence, or other unlawful means;
or
(4) any other criminal activity that endangers public safety or the
security of the United States.
(b) TERRORIST ACTIVITIES.—An alien is deportable if the alien has en-
gaged or engages in a terrorist activity as defined in section 6310(b) of this
title.
(c) FOREIGN POLICY.—(1) An alien is deportable if the Secretary of
State reasonably believes that the alien’s presence or activities in the United
States would have potentially serious adverse foreign policy consequences for
the United States.
(2) The exceptions described in section 6310(c) (2) and (3) of this title
apply to deportability under this subsection in the same way that they apply
to inadmissibility under section 6310(c)(1).
§ 6509. Participation in Nazi persecution or genocide
An alien described in section 6311 of this title is deportable.
215
SUBCHAPTER II—RELATED PROVISIONS
§ 6531. Nonapplication of certain grounds to special immi-
grants dependent on juvenile court
The following sections do not apply to a special immigrant as defined in
section 133(a)(12) of this title, based on circumstances that existed before
the date the alien acquired the special immigrant status:
(1) Sections 6501(a) and 6504 of this title, except to the extent re-
lated to a ground of inadmissibility described in section 6309(a) (1)–
(5) or (7), 6310, or 6311 of this title.
(2) Section 6507(a) of this title.
CHAPTER 67—REMOVAL PROCEDURE
Sec.
6701.
Definitions.
6702.
Arrest and detention pending decision on removal.
6703.
Initiation of removal proceeding.
6704.
Removal proceeding.
6705.
Expedited removal proceeding for aliens convicted of aggravated felonies.
6706.
Judicial removal of criminal aliens.
6707.
Right to counsel.
6708.
Sanctions for frivolous behavior and contempt.
6709.
Proof of convictions.
6710.
Motions to reconsider or reopen.
6711.
Finality of administrative removal order.
6712.
Judicial review.
6713.
Limitation on discretionary relief for failure to appear.
6714.
Voluntary departure.
6715.
Detention, release, and removal of aliens ordered removed.
6716.
Countries to which aliens may be removed.
6717.
Immediate removal of arriving aliens.
6718.
Requirements of persons providing transportation.
6719.
Costs of detention, maintenance, and removal.
6720.
Aliens requiring personal care during removal.
6721.
Cancellation of removal and adjustment of status.
6722.
Places of detention.
6723.
No enforceable rights created.
6724.
Review by Attorney General and Comptroller General of certain proceedings.
§ 6701. Definitions
In sections 6704 and 6721 of this title—
(1) ‘‘exceptional circumstances’’ means exceptional circumstances be-
yond the control of the alien, such as serious illness of the alien or seri-
ous illness or death of the spouse, child, or parent of the alien, but not
including less compelling circumstances.
(2) ‘‘removable’’ means—
(A) for an alien not admitted to the United States, that the
alien is inadmissible under chapter 63 of this title; or
(B) for an alien admitted to the United States, that the alien
is deportable under chapter 65 of this title.
§ 6702. Arrest and detention pending decision on removal
(a) GENERAL.—On a warrant issued by the Attorney General, an alien
may be arrested and detained pending a decision whether to remove the
216
alien from the United States. Except as provided in subsection (c) of this
section, the Attorney General, pending that decision—
(1) may continue to detain the alien;
(2) may release the alien on—
(A) bond of at least $1,500 with security approved by, and con-
taining conditions prescribed by, the Attorney General; or
(B) conditional parole; but
(3) may not provide the alien with work authorization (including an
‘‘employment authorized’’ endorsement or other appropriate work per-
mit) unless the alien is lawfully admitted for permanent residence or
would otherwise (without regard to a removal proceeding) be provided
with work authorization.
(b) REVOCATION OF BOND OR PAROLE.—The Attorney General at any
time may revoke a bond or parole authorized under subsection (a) of this
section, rearrest the alien under the original warrant, and detain the alien.
(c) CRIMINAL ALIENS.—(1) This subsection applies to an alien who is—
(A) inadmissible under section 6309(a) (1)–(5) or (7) of this title;
(B) deportable under section 6506(a)(1)(A) of this title on the basis
of an offense for which the alien has been sentenced to a term of im-
prisonment of at least one year;
(C) deportable under section 6506 (a)(1) (B) or (C), (b), (c), or (f)
of this title; or
(D) inadmissible under section 6310(b) of this title or deportable
under section 6508(b) of this title.
(2) The Attorney General shall take into custody an alien described in
paragraph (1) of this subsection when the alien is released, without regard
to whether the alien is released on parole, supervised release, or probation,
and without regard to whether the alien may be arrested or imprisoned
again for the same offense.
(3) The Attorney General may release an alien taken into custody under
paragraph (2) of this subsection only if—
(A) the Attorney General decides under section 3521 of title 18 that
release of the alien is necessary to provide protection to a witness, a
potential witness, a person cooperating with an investigation into major
criminal activity, or an immediate family member or close associate of
a witness, potential witness, or person cooperating with such an inves-
tigation; and
(B) the alien satisfies the Attorney General that the alien will not
pose a danger to the safety of other persons or property and is likely
to appear for any scheduled proceeding.
217
(4) A decision about releasing an alien under paragraph (3) of this sub-
section shall be made in accordance with a procedure that considers the se-
verity of the offense committed by the alien.
(d) STATE AND LOCAL AUTHORITY.—(1) Subject to paragraph (2) of this
subsection, state and local law enforcement officials, to the extent permitted
by state and local law, may arrest and detain an alien who—
(A) is illegally present in the United States; and
(B) previously has been convicted of a felony in the United States
and been deported or removed or has left the United States after the
conviction.
(2) Before making an arrest under paragraph (1) of this subsection, the
state and local law enforcement officials shall obtain appropriate confirma-
tion from the Commissioner of Immigration and Naturalization of the sta-
tus of the alien. The alien may be detained only as long as necessary for
the Commissioner to take the alien into federal custody for purposes of re-
moving the alien from the United States.
(3) The Attorney General shall cooperate with the States to ensure that
information in the control of the Attorney General, including information in
the National Crime Information Center, that would assist state and local
law enforcement officials in carrying out duties under paragraphs (1) and
(2) of this subsection is made available to the officials.
(e) JUDICIAL REVIEW.—The Attorney General’s discretionary judgment
about the application of subsections (a)–(c) of this section is not subject to
review. No court may set aside an action or decision of the Attorney General
under subsections (a)–(c) about the detention or release of an alien or the
grant, revocation, or denial of bond or parole.
§ 6703. Initiation of removal proceeding
(a) NOTICE TO APPEAR.—(1) In a removal proceeding under section
6704 of this title, written 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. The notice shall state—
(A) the nature of the proceeding against the alien;
(B) the legal authority under which the proceeding is 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 right of the alien to be represented by counsel (as provided
in section 6707(a) of this title) and to be provided—
(i) a period of time to secure counsel as provided in subsection
(b)(1) of this section; and
218
(ii) a current list of counsel prepared under section 6707(b) of
this title;
(F)(i) the requirement that, if the alien has not already done so, the
alien shall immediately provide the Attorney General with a written
record of an address and telephone number (if any) at which the alien
may be contacted about the proceeding;
(ii) the requirement that the alien shall immediately provide the At-
torney General with a written record of any change of the alien’s ad-
dress or telephone number; and
(iii) the consequences under section 6704(f) of this title of failing to
provide the address and telephone information; and
(G)(i) the time and place of the proceeding; and
(ii) the consequences under section 6704(f) of this title of failing, ex-
cept under exceptional circumstances, to appear at the proceeding.
(2)(A) Except as provided in subparagraph (B) of this paragraph, if there
is any change in the time or place of the proceeding, 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. The notice shall state—
(i) the new time or place of the proceeding; and
(ii) the consequences under section 6704(f) of this title of failing, ex-
cept under exceptional circumstances, to appear at the proceeding.
(B) Written notice under subparagraph (A) of this paragraph is not re-
quired if the alien is not in detention and has failed to provide the address
required under paragraph (1)(F) of this subsection.
(3) 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) of this subsection.
(b) TIME TO SECURE COUNSEL.—(1) To allow an alien the opportunity
to secure counsel before the first hearing date in a proceeding under section
6704 of this title, the hearing date may 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) This subsection does not prevent the Attorney General from proceed-
ing against an alien under section 6704 of this title if the time period de-
scribed in paragraph (1) of this subsection has elapsed and the alien has
failed to secure counsel.
(c) SUFFICIENCY OF SERVICE BY MAIL.—Service by mail under this sec-
tion is sufficient if there is proof of attempted delivery to the last address
provided by the alien under subsection (a)(1)(F) of this section.
219
(d) PROMPT INITIATION AGAINST CRIMINAL ALIENS.—When an alien is
convicted of an offense that makes the alien deportable, the Attorney Gen-
eral shall initiate a removal proceeding as expeditiously as possible after the
date of the conviction.
(e) FINGERPRINTS AND PHOTOGRAPHS.—The Attorney General shall pre-
scribe regulations providing for the fingerprinting and photographing of
each alien at least 14 years of age against whom a removal proceeding
under section 6704 of this title is initiated. The fingerprints and photo-
graphs shall be made available, on request, to federal, state, and local law
enforcement agencies.
§ 6704. Removal proceeding
(a) GENERAL.—(1) An immigration judge shall conduct a proceeding
under this section to decide the inadmissibility or deportability of an alien.
(2) An alien placed in a proceeding under this section may be charged
with any applicable ground of inadmissibility under chapter 63 of this title
or any applicable ground of deportability under chapter 65 of this title.
(3) Except as otherwise provided in this title, a proceeding under this sec-
tion is the only procedure for deciding whether an alien may be admitted
to the United States or, if the alien has been admitted, removed from the
United States. This section does not affect a proceeding under section 6705
or 6706 of this title.
(b) FORM OF PROCEEDING AND PRESENCE OF ALIEN.—(1) A proceeding
under this section may take place—
(A) in person;
(B) in the absence of the alien if the parties agree;
(C) through video conference; or
(D) through telephone conference, except that an evidentiary hearing
on the merits may be conducted through a telephone conference only
with the consent of the alien after the alien has been advised of the
right to proceed in person or through video conference.
(2) If an alien’s mental incompetency makes it impracticable for the alien
to be present at the proceeding, the Attorney General shall prescribe safe-
guards to protect the rights and privileges of the alien.
(c) CONDUCT OF PROCEEDING.—(1) The immigration judge shall admin-
ister oaths, receive evidence, and interrogate, examine, and cross-examine
the alien and witnesses. The immigration judge may issue subpenas for the
attendance of witnesses and the presentation of evidence.
(2) The alien may be represented by counsel as provided in section
6707(a) of this title.
(3) The alien shall have a reasonable opportunity to examine the evidence
against the alien, present evidence, and cross-examine witnesses presented
220
by the Federal Government. However, these rights do not entitle the alien
to examine any national security information proffered by the Government
in opposition to the alien’s admission to the United States or the alien’s ap-
plication for discretionary relief under this title.
(4) A complete record shall be kept of all testimony and evidence pro-
duced at the proceeding.
(d) BURDEN OF PROOF.—(1) In a proceeding under this section, the
alien has the burden of establishing—
(A) if the alien is an applicant for admission, that the alien is clearly
and beyond a doubt entitled to be admitted and is not inadmissible;
or
(B) by clear and convincing evidence that the alien is lawfully
present in the United States pursuant to a prior admission.
(2) In meeting the burden of proof under paragraph (1)(B) of this sub-
section, the alien shall have access to the alien’s visa or other entry docu-
ment, if any, and any other records, not considered confidential by the At-
torney General, pertaining to the alien’s admission or presence in the Unit-
ed States.
(3) In a proceeding under this section, if the alien has been admitted to
the United States, the Government has the burden of establishing by clear
and convincing evidence that the alien is deportable. A decision that an alien
is deportable must be based on reasonable, substantial, and probative evi-
dence.
(e) DECISION.—(1) At the conclusion of a proceeding under this section,
the immigration judge shall decide whether the alien is removable from the
United States. The decision of the immigration judge shall be based only
on the evidence produced at the proceeding.
(2) If the physician conducting a medical examination under section 6104
of this title has certified under that section that an alien has a condition
that would make the alien inadmissible under section 6304 of this title, the
decision of the immigration judge shall be based only on that certification.
(3) If the immigration judge decides that the alien is removable and or-
ders the alien to be removed, the judge shall inform the alien of the right
to appeal the decision and of the consequences for failure to depart under
the order of removal, including civil and criminal penalties.
(f) REMOVAL ORDERED IN ABSENTIA.—(1) An alien who does not attend
a proceeding under this section shall be ordered removed in absentia if the
Government establishes by clear, unequivocal, and convincing evidence
that—
(A) the written notice required by section 6703(a) (1) or (2) of this
title was provided to the alien or to the alien’s counsel of record; and
221
(B) the alien is removable.
(2) The notice referred to in paragraph (1)(A) of this subsection is suffi-
cient if provided at the most recent address provided under section
6703(a)(1)(F) of this title. No notice is required if the alien has not pro-
vided the address required by that section.
(3) A removal order issued under this subsection may be rescinded only
on a motion to reopen filed—
(A) within 180 days after the date of the order if the alien dem-
onstrates that the failure to appear was because of exceptional cir-
cumstances; or
(B) at any time if the alien demonstrates that—
(i) the alien did not receive the notice required by section
6703(a) (1) or (2) of this title; or
(ii) the alien was in federal or state custody and the failure to
appear was through no fault of the alien.
(4) The filing of a motion to reopen under paragraph (3) of this sub-
section stays the removal of the alien pending disposition of the motion by
the immigration judge.
(5) Except as provided in section 6712(c)(6) of this title, a petition for
review under section 6712 of an order issued in absentia under this sub-
section shall be confined to—
(A) the validity of the notice provided to the alien;
(B) the reasons for the alien’s failure to attend the proceeding; and
(C) whether the alien is removable.
(6) This subsection applies to all aliens in a proceeding under this sec-
tion, including any alien who remains in a foreign contiguous territory
under section 6102(d)(3) of this title.
(g) STIPULATED REMOVAL.—The Attorney General shall provide by regu-
lation for the entry by an immigration judge of an order of removal stipu-
lated to by the alien (or the alien’s representative) and the Government. A
stipulated order constitutes a conclusive determination of the alien’s remov-
ability from the United States.
§ 6705. Expedited removal proceeding for aliens convicted
of aggravated felonies
(a) PRESUMPTION OF DEPORTABILITY.—An alien convicted of an aggra-
vated felony is conclusively presumed to be deportable from the United
States.
(b) AVAILABILITY OF SPECIAL PROCEEDING.—(1) The Attorney General
shall provide for the availability of a special removal proceeding at certain
federal, state, and local correctional facilities for aliens convicted of a crimi-
nal offense described in—
222
(A) section 6506 (a)(1)(C), (b), (c), or (f) of this title; or
(B) section 6506(a)(1)(B) of this title if both predicate offenses re-
ferred to in that provision are, without regard to their date of commis-
sion, described in section 6506(a)(1)(A).
(2) A proceeding under paragraph (1) of this subsection shall be con-
ducted—
(A) in conformity with section 6704 of this title (except as otherwise
provided in this section);
(B) in a manner that eliminates the need for additional detention at
a processing center of the Immigration and Naturalization Service; and
(C) in a manner that ensures expeditious removal following the end
of the alien’s incarceration for the underlying sentence.
(c) DETENTION
AT SAME FACILITY.—To the maximum extent prac-
ticable, the Attorney General shall detain at the same facility aliens con-
victed of an aggravated felony and taken into custody under section 6702(c)
of this title. In selecting the facility, the Attorney General shall make a rea-
sonable effort to ensure that an alien’s access to counsel and right to coun-
sel under section 6707(a) of this title are not impaired.
(d) CONDUCT OF PROCEEDING BEFORE RELEASE.—The Attorney Gen-
eral shall provide for the initiation and, to the extent possible, the comple-
tion of a removal proceeding (including any administrative appeal) against
an alien convicted of an aggravated felony before the alien is released from
incarceration for the aggravated felony. This subsection does not require the
Attorney General to remove an alien sentenced to incarceration before the
alien is released from the incarceration.
(e) ALIENS WHO ARE NOT PERMANENT RESIDENTS.—(1) The Attorney
General may determine the deportability of an alien under section
6506(a)(1)(C) of this title and issue an order of removal under the proce-
dures in this subsection or section 6704 of this title if, at the time the pro-
ceeding under this section is initiated, the alien—
(A) is not lawfully admitted for permanent residence; or
(B) has permanent resident status on a conditional basis (as de-
scribed in subchapter I of chapter 45 of this title).
(2) The Attorney General shall prescribe regulations for the conduct of
a proceeding under this subsection. The regulations shall provide that—
(A) the alien shall be given reasonable notice of the charges and of
the opportunity described in clause (C) of this paragraph;
(B) the alien may be represented by counsel as provided in section
6707(a) of this title;
(C) the alien shall be given a reasonable opportunity to inspect the
evidence and rebut the charges;
223
(D) a determination shall be made for the record that the individual
on whom notice of the proceeding was served (in person or by mail)
is in fact the alien named in the notice;
(E) a record shall be maintained for judicial review; and
(F) the final order of removal may not be adjudicated by the same
individual who issues the charges.
(3) The Attorney General may not execute an order described in para-
graph (1) of this subsection until 14 calendar days have passed after the
date the order was issued, to allow the alien an opportunity to apply for
judicial review under section 6712 of this title. The alien may waive this
limitation.
(f) INELIGIBILITY FOR RELIEF FROM REMOVAL.—An alien described in
this section is ineligible for any relief from removal that the Attorney Gen-
eral may grant.
§ 6706. Judicial removal of criminal aliens
(a) JURISDICTION.—A district court of the United States has jurisdiction
to enter a judicial order of removal at the time of sentencing against an
alien who is deportable if—
(1) the United States Attorney, with the concurrence of the Commis-
sioner of Immigration and Naturalization, requests the order; and
(2) the court chooses to exercise that jurisdiction.
(b) PROCEDURE.—(1) Before the beginning of trial or entry of a guilty
plea, the United States Attorney shall file with the court, and serve on the
defendant and the Commissioner, a notice of intent to request judicial re-
moval.
(2) At least 30 days before the date set for sentencing, the United States
Attorney, with the concurrence of the Commissioner, shall file a charge con-
taining factual allegations about the alienage of the defendant and identify-
ing each offense that makes the defendant deportable under section 6506(a)
of this title.
(3) If the court finds that the defendant has presented substantial evi-
dence to establish prima facie eligibility for relief from removal, the Com-
missioner shall provide the court with a recommendation and report on the
alien’s eligibility for relief. The court shall grant or deny the relief sought.
(4) The alien shall have a reasonable opportunity to examine the evidence
against the alien, present evidence, and cross-examine witnesses presented
by the Federal Government.
(5) In deciding whether to enter an order of removal, the court may con-
sider only evidence that would be admissible in a proceeding under section
6704 of this title. This subsection does not limit the information the court
may receive or consider for purposes of imposing an appropriate sentence.
224
(6) The court may order the alien to be removed if the Government dem-
onstrates that the alien is deportable.
(c) NOTICE OF ORDER.—As soon as practicable after entry of a judicial
order of removal, the Commissioner shall provide the defendant with written
notice of the order. The notice shall designate the defendant’s country of
choice for removal and any alternate country as provided in section 6716
of this title.
(d) APPEAL.—The granting or denial of a judicial order of removal may
be appealed to the court of appeals for the circuit in which the district court
is located. Except as provided in subsection (e) of this section, consideration
of the appeal shall be consistent with section 6712 of this title.
(e) FINALITY AND EXECUTION OF ORDER.—(1) A judicial order of re-
moval becomes final when—
(A) the defendant executes a waiver of the right to appeal the convic-
tion on which the order of removal is based;
(B) the period provided in section 6712(c)(2) of this title expires; or
(C) there is a final dismissal of an appeal from the conviction.
(2) The final judicial order of removal shall be executed, as provided in
the order, at the end of the term of imprisonment.
(3) An order entered under this section is void if the conviction on which
the order is based is reversed on direct appeal.
(f) FAILURE TO EXERCISE JURISDICTION.—Denial of a request for a ju-
dicial order of removal does not preclude the Attorney General from initiat-
ing a removal proceeding under section 6704 of this title on the same or
any other ground of deportability.
(g) STIPULATED JUDICIAL ORDER OF REMOVAL.—The United States At-
torney, with the concurrence of the Commissioner, may enter into a plea
agreement under rule 11 of the Federal Rules of Criminal Procedure (18
App. U.S.C.) that calls for an alien who is deportable to waive the right
to notice and a hearing under this section and to stipulate to the entry of
a judicial order of removal as a condition of the plea agreement, as a condi-
tion of probation or supervised release, or both. The United States district
court in a felony or misdemeanor case, and a United States magistrate
judge in a misdemeanor case, has jurisdiction to enter a judicial order of
removal in accordance with the stipulation.
§ 6707. Right to counsel
(a) GENERAL.—In a removal proceeding before an immigration judge and
in an appeal proceeding before the Attorney General from the removal pro-
ceeding, the alien may be represented by counsel (authorized to practice in
the proceeding) chosen by the alien, but at no expense to the Federal Gov-
ernment.
225
(b) LISTS OF AVAILABLE COUNSEL.—The Attorney General shall provide
for lists (updated at least quarterly) of persons who have indicated their
availability to represent aliens pro bono in proceedings under section 6704
of this title. The lists shall be provided under section 6703(a)(1)(E) of this
title and also be made generally available.
§ 6708. Sanctions for frivolous behavior and contempt
(a) FRIVOLOUS BEHAVIOR.—(1) The Attorney General by regulation
shall—
(A) define frivolous behavior for which attorneys may be sanctioned
in a proceeding before an immigration judge or an appellate adminis-
trative body under this title;
(B) specify the circumstances under which an administrative appeal
of a decision or ruling will be considered frivolous and will be sum-
marily dismissed; and
(C) impose appropriate sanctions (which may include suspension and
disbarment) for frivolous behavior.
(2) Paragraph (1) of this subsection does not limit the authority of the
Attorney General to take action for inappropriate behavior.
(b) CONTEMPT.—Under regulations prescribed by the Attorney General,
an immigration judge may sanction by civil money penalty any action or in-
action in contempt of the judge’s proper exercise of authority under this
title.
§ 6709. Proof of convictions
(a) GENERAL.—In any proceeding under this title (except subchapter I
of chapter 7, chapter 47, subchapters II and III of chapter 131, and chap-
ters 133, 135, and 151), a criminal conviction may be proved by any of the
following (or by a certified copy of any of the following):
(1) An official record of judgment and conviction.
(2) An official record of plea, verdict, and sentence.
(3) A docket entry from court records indicating the existence of the
conviction.
(4) Official minutes of a court proceeding or a transcript of a court
hearing in which the court takes notice of the existence of the convic-
tion.
(5) 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 exist-
ence and date of conviction, and the sentence.
226
(6) A 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.
(7) A document or record attesting to the conviction that is main-
tained by an official of a federal or state penal institution, which is the
basis for that institution’s authority to assume custody of the individ-
ual named in the record.
(b) ELECTRONIC RECORDS.—(1) In any proceeding under this title (ex-
cept subchapter I of chapter 7, chapter 47, subchapters II and III of chap-
ter 131, and chapters 133, 135, and 151), any record of conviction or ab-
stract that has been submitted by electronic means to the Immigration and
Naturalization Service from a State or court is admissible as evidence to
prove a criminal conviction if it is—
(A) 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
(B) certified in writing by an official of the Service as having been
received electronically from the State’s record repository or the court’s
record repository.
(2) A certification under paragraph (1)(A) of this subsection may be by
means of a computer-generated signature and statement of authenticity.
§ 6710. Motions to reconsider or reopen
(a) MOTIONS TO RECONSIDER.—(1) An alien may file one motion to re-
consider a decision that the alien is removable from the United States.
(2) The motion must be filed within 30 days after the date of entry of
a final administrative order of removal.
(3) The motion shall specify the errors of law or fact in the previous
order and shall be supported by pertinent authority.
(b) MOTIONS TO REOPEN.—(1) An alien may file one motion to reopen
a removal proceeding under section 6704 of this title.
(2) The motion to reopen shall state the new facts that would be proved
at a hearing to be held if the motion were granted, and shall be supported
by affidavits or other evidentiary material.
(3)(A) Except as provided in subparagraphs (B) and (C) this paragraph,
the motion to reopen must be filed within 90 days after the date of entry
of the final administrative order of removal.
(B) There is no time limit on filing a motion to reopen if—
(i) the basis of the motion is to apply for relief under section 5106
or 6716(d) of this title;
227
(ii) the motion is based on changed country conditions arising in the
country of nationality or the country to which removal has been or-
dered; and
(iii) the evidence of changed country conditions is material and was
not available and would not have been discovered or presented at the
previous proceeding.
(C) The filing of a motion to reopen an order entered under section
6704(f) of this title is subject to the deadline specified in section 6704(f)(3).
§ 6711. Finality of administrative removal order
An administrative order of removal becomes final on the earlier of—
(1) a decision by the Board of Immigration Appeals affirming the
order; or
(2) the expiration of the period for the alien to seek review of the
order by the Board.
§ 6712. Judicial review
(a) APPLICABLE PROVISIONS.—(1) Except as provided in paragraph (2)
of this subsection, judicial review of a final order of removal is governed
only by chapter 158 of title 28 and subsection (c) of this section.
(2) Judicial review of an order of removal issued without a hearing under
section 6102(c) or 6105 of this title is governed only by subsection (d) of
this section.
(3) Judicial review of all questions of law and fact arising from any ac-
tion taken or proceeding brought to remove an alien from the United States
under this title is available only in judicial review of a final order under
this section.
(b) LIMITATIONS ON JUDICIAL REVIEW.—(1) Except as otherwise pro-
vided in this section, no court has jurisdiction to hear any cause or claim
by an alien arising from a decision or action of the Attorney General to
commence a proceeding, adjudicate a case, or execute a removal order
against the alien under this title.
(2) No court has jurisdiction to review—
(A) a final order of removal against an alien who is removable for
having committed a criminal offense described in—
(i) section 6309(a)(1)–(5) or (7) or 6506(a)(1)(C), (b), (c), or
(f) of this title; or
(ii) section 6506(a)(1)(B) of this title if both predicate offenses
referred to in that provision are, without regard to their date of
commission, described in section 6506(a)(1)(A);
(B) a decision granting or denying relief under section 6303(a)(2)
6309(b), 6714(a) or (b), 6721, 9101, or 9102 of this title; or
228
(C) any other decision or action of the Attorney General within the
discretion of the Attorney General, except the granting of relief under
section 5106(b) of this title.
(3) Regardless of the nature of the action or claim or the identity of any
party bringing the action, no court (other than the Supreme Court) has ju-
risdiction to enjoin the operation of the following provisions, except as ap-
plied to an individual alien against whom a proceeding under those provi-
sions has been initiated:
(A) sections 6101, 6102, 6103(c), and 6104–6107 of this title.
(B) chapter 65 of this title, except sections 6502(b) and 6507(b)(2)
and (4).
(C) this chapter, except sections 6702(d), 6703(e), 6707(a), and
6711.
(D) chapter 71 of this title, except section 7110.
(E) sections 7301, 7302, 7304, and 7306.
(4) No court may enjoin the removal of an alien under a final order
under this section unless the alien shows by clear and convincing evidence
that the entry or execution of the order is prohibited as a matter of law.
(5) An alien may not appeal a decision of an immigration judge that is
based only on a certification described in section 6704(e)(2) of this title.
(c) REQUIREMENTS FOR REVIEW OF ORDERS OF REMOVAL.—(1) The re-
quirements in this subsection apply to judicial review of an order referred
to in subsection (a)(1) of this section.
(2) The petition for review must be filed within 30 days after the date
of the final order of removal. The petition shall be filed with the court of
appeals for the circuit in which the immigration judge completed the pro-
ceeding.
(3) The record and briefs do not have to be printed. The court of appeals
shall review the proceeding on a typewritten record and on typewritten
briefs.
(4)(A) The respondent is the Attorney General. The petition shall be
served on the Attorney General and on the officer or employee of the Immi-
gration and Naturalization Service in charge of the Service district in which
the final order of removal under section 6704 of this title was entered.
(B) Service of the petition on the officer or employee does not stay the
removal of an alien pending the court’s decision on the petition, unless the
court orders otherwise.
(C) The alien shall serve and file a brief in connection with a petition
for judicial review within 40 days after the date on which the administrative
record is available, and may serve and file a reply brief not later than 14
days after service of the brief of the Attorney General. The court may not
229
extend the deadlines in this subparagraph except on motion for good cause
shown. If an alien fails to file a brief within the time provided in this sub-
paragraph, the court shall dismiss the appeal unless a manifest injustice
would result.
(5) Except as provided in paragraph (6)(B) of this subsection—
(A) the court of appeals shall decide the petition only on the admin-
istrative record on which the order of removal is based;
(B) the administrative findings of fact are conclusive unless any rea-
sonable adjudicator would be compelled to conclude to the contrary;
(C) a decision that an alien is not eligible for admission to the Unit-
ed States is conclusive unless manifestly contrary to law;
(D) the Attorney General’s discretionary judgment whether to grant
relief under section 5106(b) of this title is conclusive unless manifestly
contrary to law and an abuse of discretion; and
(E) the court may not order the taking of additional evidence under
section 2347(c) of title 28.
(6)(A) If the petitioner claims to be a national of the United States and
the court of appeals finds from the pleadings and affidavits that no genuine
issue of material fact about the petitioner’s nationality is presented, the
court shall decide the nationality claim.
(B) If the petitioner claims to be a national of the United States and the
court of appeals finds that a genuine issue of material fact about the peti-
tioner’s nationality is presented, the court shall transfer the proceeding to
the district court of the United States for the judicial district in which the
petitioner resides for a new hearing on the nationality claim and a decision
on that claim as if an action had been brought in the district court under
section 2201 of title 28.
(C) The petitioner may have the nationality claim decided only as pro-
vided in this paragraph.
(7) When a petitioner seeks review of an order under this section, any
review sought of a motion to reopen or reconsider the order shall be consoli-
dated with the review of the order.
(8)(A) If the validity of an order of removal has not been judicially de-
cided, a defendant in a criminal proceeding charged with violating section
10152(a) of this title may challenge the validity of the order in the criminal
proceeding only by filing a separate motion before trial. The district court,
without a jury, shall decide the motion before trial.
(B) If the defendant claims in the motion to be a national of the United
States and the district court finds that—
(i) no genuine issue of material fact about the defendant’s national-
ity is presented, the court shall decide the motion only on the adminis-
230
trative record on which the removal order is based, and the administra-
tive findings of fact are conclusive if supported by reasonable, substan-
tial, and probative evidence on the record considered as a whole; or
(ii) a genuine issue of material fact about the defendant’s nationality
is presented, the court shall hold a new hearing on the nationality
claim and decide that claim as if an action had been brought under
section 2201 of title 28.
(C) The defendant may have the nationality claim decided only as pro-
vided in subparagraph (B) of this paragraph.
(D) If the district court rules that the removal order is invalid, the court
shall dismiss the indictment for violation of section 10152(a) of this title.
The Federal Government may appeal the dismissal to the court of appeals
for the appropriate circuit within 30 days after the date of the dismissal.
(E) The defendant in a criminal proceeding under section 10152(a) of
this title may not file a petition for review under subsection (a) of this sec-
tion during the criminal proceeding.
(9) This subsection does not—
(A) prevent the Attorney General, after a final order of removal has
been issued, from detaining the alien under section 6715 of this title;
(B) relieve the alien from complying with sections 6715(d) and 8302
of this title; or
(C) require the Attorney General to defer removal of the alien.
(d) JUDICIAL REVIEW OF REMOVAL ORDERED WITHOUT HEARING.—(1)
Except as provided in paragraph (2) of this subsection, no court has juris-
diction to review—
(A) an individual determination or to entertain any other cause or
claim arising from or related to the implementation or operation of an
order of removal under section 6102(c) or 6105 of this title;
(B) a decision by the Attorney General to invoke the provisions of
those sections;
(C) the application of those sections to individual aliens, including
the determination made under section 6105 of this title; or
(D) procedures and policies adopted by the Attorney General to im-
plement section 6102(c) or 6105 of this title.
(2) Regardless of the nature of the action or claim or the identity of any
party bringing the action, no court may—
(A) enter declaratory, injunctive, or other equitable relief in any ac-
tion related to an order to exclude an alien under section 6102(c) or
6105 of this title except as specifically authorized in a subsequent para-
graph of this subsection; or
231
(B) certify a class under rule 23 of the Federal Rules of Civil Proce-
dure (28 App. U.S.C.) in any action for which judicial review is author-
ized under a subsequent paragraph of this subsection.
(3) Judicial review of a decision made under section 6102(c) or 6105 of
this title is available in a habeas corpus proceeding, but is limited to deter-
mining whether the petitioner—
(A) is an alien;
(B) was ordered removed under one of those sections; or
(C) can prove by a preponderance of the evidence that—
(i) the petitioner has been lawfully admitted for permanent resi-
dence, admitted as a refugee under section 5105 of this title, or
granted asylum under section 5106 of this title;
(ii) the status has not been terminated; and
(iii) the petitioner is entitled to further inquiry as prescribed by
the Attorney General under section 6106(a) of this title.
(4)(A) Judicial review of a determination under section 6102(c) or 6105
of this title or the implementation of those sections is available in an action
brought in the United States District Court for the District of Columbia,
but is limited to review of whether—
(i) those sections, and regulations prescribed under those sections,
are constitutional; or
(ii) a regulation, written policy directive, written policy guideline, or
written procedure issued by or under authority of the Attorney General
to implement those sections is inconsistent with this title or otherwise
in violation of law.
(B) An action under this paragraph must be filed within 60 days after
the date the challenged section, regulation, directive, guideline, or procedure
described in subparagraph (A) of this paragraph is first implemented.
(C) A notice of appeal of an order issued by the District Court under
this paragraph must be filed within 30 days after the date the order is is-
sued.
(D) The District Court, the Court of Appeals, and the Supreme Court
shall advance on the docket and expedite to the greatest possible extent the
disposition of any case considered under this paragraph.
(5)(A) The only relief a court may order is that the petitioner be provided
a hearing under section 6704 of this title if the court decides that the peti-
tioner—
(i) is an alien who was not ordered removed under section 6102(c)
or 6105 of this title; or
(ii) has demonstrated by a preponderance of the evidence that the
petitioner has been lawfully admitted for permanent residence, admit-
232
ted as a refugee under section 5105 of this title, or granted asylum
under section 5106 of this title.
(B) If the court orders a hearing under subparagraph (A) of this para-
graph, the alien may obtain judicial review of any resulting final order of
removal under subsection (a)(1) of this section.
(6) In determining whether an alien has been ordered removed under sec-
tion 6102(c) or 6105 of this title, the court shall limit its inquiry to whether
the order was issued and whether it relates to the petitioner. The court may
not review whether the alien is inadmissible or entitled to any relief from
removal.
(e) CONTENTS OF PETITIONS.—A petition for review or for habeas corpus
of an order of removal shall—
(1) include a copy of the order; and
(2) state whether a court has upheld the validity of the order, and,
if so, shall state the name of the court, the date of the court’s ruling,
and the kind of proceeding.
(f) ADDITIONAL REQUIREMENTS.—A court may review a final order of
removal only if—
(1) the alien has exhausted all administrative remedies available to
the alien as of right; and
(2) another court has not decided the validity of the order, unless
the reviewing court finds that the petition presents grounds that could
not have been presented in the prior judicial proceeding or that the
remedy provided by the prior proceeding was inadequate or ineffective
to test the validity of the order.
§ 6713. Limitation on discretionary relief for failure to ap-
pear
An alien is ineligible for relief under section 6714(a) or (b), 6721, 9101,
9104, or 9108 of this title for a period of 10 years after the date of entry
of a final order of removal if—
(1) the final order of removal was entered in absentia under section
6704(f) of this title; and
(2) the alien, at the time of the required notice under section
6703(a) (1) or (2) of this title, was provided oral notice, in the alien’s
native language or another language the alien understands, of the time
and place of the removal proceeding and the consequences under this
section of failing (except because of exceptional circumstances) to at-
tend.
§ 6714. Voluntary departure
(a) BEFORE
OR DURING REMOVAL PROCEEDING.—(1) The Attorney
General may permit an alien to depart voluntarily from the United States
233
at the alien’s own expense in lieu of being subject to a removal proceeding
under section 6704 of this title or prior to the completion of the proceeding.
However, this subsection does not apply to—
(A) an alien deportable under section 6506(a)(1)(C) or 6508(b) of
this title; or
(B) an alien arriving in the United States for whom a removal pro-
ceeding under section 6704 of this title is (or otherwise would be) initi-
ated at the time of the alien’s arrival, except that this clause does not
prevent an alien from withdrawing the application for admission under
section 6101(c) of this title.
(2) Permission to depart voluntarily under this subsection may not be
valid for more than 120 days.
(3) The Attorney General may require an alien permitted to depart volun-
tarily under this subsection to post a voluntary departure bond, to be sur-
rendered on proof that the alien has departed the United States within the
time specified.
(b) AT CONCLUSION OF REMOVAL PROCEEDING.—(1) The Attorney Gen-
eral may permit an alien to depart voluntarily from the United States at
the alien’s own expense if, at the conclusion of a removal proceeding under
section 6704 of this title, 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
at least one year immediately preceding the date the notice to appear
was served under section 6703(a) of this title;
(B) the alien is, and has been for at least 5 years immediately pre-
ceding the alien’s application for voluntary departure, an individual of
good moral character;
(C) the alien is not deportable under section 6506(a)(1)(C), 6508,
or 6509 of this title; 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) Permission to depart voluntarily under this subsection may not be
valid for more than 60 days.
(3) 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 on proof that the alien
has departed the United States within the time specified.
(c) ALIENS NOT ELIGIBLE.—The Attorney General may not permit an
alien to depart voluntarily under subsection (a) or (b) of this section if the
234
alien previously was permitted to depart voluntarily after having been found
inadmissible under section 6302 of this title.
(d) NOTICE OF PENALTIES.—An order permitting an alien to depart vol-
untarily under subsection (a) or (b) of this section shall inform the alien
of the penalties under section 10127(a) of this title for failure to depart.
(e) ALIENS FALLING INTO DISTRESS.—(1) If an alien falls into distress
or needs public aid from a cause that arises after the alien enters the Unit-
ed States, and the alien wants to be removed from the United States, the
Attorney General may remove the alien to—
(A) the alien’s native country;
(B) the country from which the alien came to the United States;
(C) the country of which the alien is a citizen or subject; or
(D) any other country to which the alien wishes to go if the govern-
ment of that country will accept the alien.
(2) Except with the prior approval of the Attorney General, an alien re-
moved under paragraph (1) of this subsection is ineligible for a visa or other
documentation for readmission and ineligible for admission to the United
States.
(f) VOLUNTARY DEPARTURE DEEMED REMOVAL.—An alien who departs
the United States after being ordered removed is deemed to have been re-
moved, regardless of the source from which the cost of transportation is
paid or the place to which the alien departs.
(g) ADDITIONAL CONDITIONS.—The Attorney General by regulation may
limit eligibility for voluntary departure under this section for any class of
aliens. No court may review any regulation issued under this subsection.
(h) JUDICIAL REVIEW.—No court has jurisdiction of an appeal from de-
nial of a request for an order of voluntary departure under subsection (b)
of this section. A court may not order a stay of an alien’s removal pending
consideration of any claim related to voluntary departure.
§ 6715. Detention, release, and removal of aliens ordered re-
moved
(a) REMOVAL PERIOD.—(1) Except as otherwise provided in this chapter,
when an alien is ordered removed, the Attorney General shall remove the
alien from the United States within the 90-day period (referred to as the
‘‘removal period’’) beginning on the later of—
(A) the date the removal order becomes administratively final;
(B) if the removal order is judicially reviewed and a court orders a
stay of the removal, the date of the court’s final order; or
(C) if the alien is detained or confined (except under an immigration
process), the date the alien is released from detention or confinement.
235
(2) The removal period shall be extended beyond 90 days and the alien
may remain in detention during that extended period if the alien does not
make timely application in good faith for travel or other documents nec-
essary for the alien’s departure or conspires or acts to prevent the alien’s
removal.
(b) DETENTION DURING REMOVAL PERIOD.—During the removal period,
the Attorney General—
(1) shall detain the alien; and
(2) may not release an alien who has been found inadmissible under
section 6309(a) (1)–(5) or (7) or 6310(b) of this title or deportable
under section 6506 (a)–(d) or (f) or 6508(b) of this title.
(c) SUPERVISION AFTER REMOVAL PERIOD.—If the alien does not leave
or is not removed within the removal period, the alien, pending removal,
shall be supervised under regulations prescribed by the Attorney General.
The regulations shall include provisions requiring the alien to—
(1) appear before an immigration officer periodically for identifica-
tion;
(2) submit, if necessary, to a medical and psychiatric examination at
the expense of the Federal Government;
(3) give information under oath about the alien’s nationality, cir-
cumstances, habits, associations, and activities, and other information
the Attorney General considers appropriate; and
(4) obey reasonable written restrictions on the alien’s conduct or ac-
tivities that the Attorney General prescribes for the alien.
(d) ALIENS IMPRISONED, ARRESTED, OR ON PAROLE, SUPERVISED RE-
LEASE, OR PROBATION.—(1) Except as provided in section 343(a) of the
Public Health Service Act (42 U.S.C. 259(a)) and paragraph (2) of this
subsection, the Attorney General may not remove an alien who is sentenced
to imprisonment until the alien is released from imprisonment. Parole, su-
pervised release, probation, or possibility of arrest or further imprisonment
is not a reason to defer removal.
(2) The Attorney General may remove an alien before the alien has com-
pleted a sentence of imprisonment if—
(A) the alien is in the custody of the Attorney General and the At-
torney General determines that—
(i) the alien is confined for a final conviction of a nonviolent of-
fense (except an offense related to smuggling or harboring of
aliens or an offense described in section 104(a)(2)(A) (ii) or (iii),
(3)(A)(i) (related to (2)(A) (ii) or (iii)), or (4)(A) (i), (viii), or
(xiii) or (b)(2)(A) (ii), (iii), (v), (ix), or (xii) of this title); and
236
(ii) the removal of the alien is appropriate and in the best inter-
est of the United States; or
(B) the alien is in the custody of a State (or political subdivision of
a State) and the chief state official exercising authority for the incar-
ceration of the alien—
(i) determines that—
(I) the alien is confined for a final conviction of a non-
violent offense (except an offense described in section
104(a)(2)(A)(iii), (3)(A)(i) (related to (2)(A)(iii)), or (4)(A)
(i) or (viii) or (b)(2)(A) (iii) or (v) of this title); and
(II) the removal is appropriate and in the best interest of
the State; and
(ii) submits a written request to the Attorney General that the
alien be removed.
(3) An alien removed under this subsection shall be notified of the pen-
alties under the laws of the United States related to the reentry of removed
aliens, particularly the expanded penalties for aliens removed under para-
graph (2) of this subsection.
(e) REINSTATEMENT OF REMOVAL ORDERS AGAINST ALIENS ILLEGALLY
REENTERING.—If the Attorney General finds that an alien has reentered
the United States illegally after having been removed or having departed
voluntarily under an order of removal—
(1) the prior order of removal is reinstated from its original date and
may not be reopened or reviewed;
(2) the alien is not eligible for any relief under this title; and
(3) the alien shall be removed under the prior order any time after
the reentry.
(f) INADMISSIBLE OR CRIMINAL ALIENS.—An alien ordered removed may
be detained beyond the removal period and, if released, shall be supervised
under subsection (c) of this section, if the alien—
(1) is inadmissible under chapter 63 of this title;
(2) is deportable under section 6504 (a) or (b), 6506 (a)–(d) or (f),
6508, or 6509 of this title; or
(3) has been determined by the Attorney General to be a risk to the
community or unlikely to comply with the order of removal.
(g) EMPLOYMENT AUTHORIZATION.—An alien ordered removed is ineli-
gible to receive authorization to be employed in the United States unless
the Attorney General makes a specific finding that—
(1) the alien cannot be removed because all countries to which the
alien would be removed under section 6716 of this title refuse to accept
the alien; or
237
(2) the removal of the alien is otherwise impracticable or contrary
to the public interest.
§ 6716. Countries to which aliens may be removed
(a) ARRIVING ALIENS.—(1) Except as otherwise provided in this sub-
section, if a removal proceeding under section 6704 of this title was initiated
against an alien when the alien arrived in the United States, the alien shall
be removed to the country in which the alien boarded the vessel or aircraft
on which the alien arrived.
(2) If the alien boarded the vessel or aircraft on which the alien arrived
in the United States in a foreign territory contiguous to the United States,
an island adjacent to the United States, or an island adjacent to a foreign
territory contiguous to the United States, and the alien is not a native, citi-
zen, subject, or national of, or does not reside in, the territory or island,
removal shall be to the country in which the alien boarded the vessel that
transported the alien to the territory or island.
(3) If the government of the country in paragraph (1) or (2) of this sub-
section is unwilling to accept the alien into that country’s territory, removal
shall be to any of the following countries, as directed by the Attorney Gen-
eral:
(A) The country of which the alien is a citizen, subject, or national.
(B) The country in which the alien was born.
(C) The country in which the alien has a residence.
(D) A country with a government that will accept the alien into the
country’s territory if removal to each country described in clauses (A)–
(C) of this paragraph is impracticable, inadvisable, or impossible.
(b) OTHER ALIENS.—(1) Except as otherwise provided in this subsection,
an alien not described in subsection (a) of this section who has been ordered
removed may designate one country to which the alien wants to be removed,
and the Attorney General shall remove the alien to that country.
(2) An alien may not designate under paragraph (1) of this subsection
a foreign territory contiguous to the United States, an adjacent island, or
an island adjacent to a foreign territory contiguous to the United States un-
less the alien is a native, citizen, subject, or national of, or has resided in,
the territory or island.
(3) The Attorney General may disregard a designation under paragraph
(1) of this subsection if—
(A) the alien fails to designate a country promptly;
(B) the government of the country does not inform the Attorney
General finally, within 30 days after the date the Attorney General
first inquires, whether the government will accept the alien into the
country;
238
(C) the government of the country is not willing to accept the alien
into the country; or
(D) the Attorney General decides that removing the alien to the
country is prejudicial to the United States.
(4) If an alien is not removed to a country designated under paragraph
(1) of this subsection, the Attorney General shall remove the alien to a
country of which the alien is a subject, national, or citizen unless the gov-
ernment of the country—
(A) does not inform the Attorney General or the alien finally, within
30 days after the date the Attorney General first inquires or within an-
other period of time the Attorney General decides is reasonable, wheth-
er the government will accept the alien into the country; or
(B) is not willing to accept the alien into the country.
(5) If an alien is not removed to a country under the paragraphs (1)–
(4) of this subsection, the Attorney General shall remove the alien to any
of the following countries:
(A) The country from which the alien was admitted to the United
States.
(B) The country in which is located the foreign port from which the
alien left for the United States or for a foreign territory contiguous to
the United States.
(C) A country in which the alien resided before the alien entered the
country from which the alien entered the United States.
(D) The country in which the alien was born.
(E) The country that had sovereignty over the alien’s birthplace
when the alien was born.
(F) The country in which the alien’s birthplace is located when the
alien is ordered removed.
(G) If impracticable, inadvisable, or impossible to remove the alien
to any country described in clauses (A)–(F) of this paragraph, another
country whose government will accept the alien into that country.
(c) REMOVAL COUNTRY WHEN UNITED STATES AT WAR.—When the
United States is at war and the Attorney General decides that it is imprac-
ticable, inadvisable, inconvenient, or impossible to remove an alien under
this section because of the war, the Attorney General may remove the
alien—
(1) to the country that is host to a government in exile of the coun-
try of which the alien is a citizen or subject if the government of the
host country will permit the alien’s entry; or
(2) if the recognized government of the country of which the alien
is a citizen or subject is not in exile, to a country, or a political or
239
territorial subdivision of a country, that is very near the country of
which the alien is a citizen or subject, or, with the consent of the gov-
ernment of the country of which the alien is a citizen or subject, to
another country.
(d) RESTRICTION ON REMOVAL TO COUNTRY WHERE ALIEN’S LIFE OR
FREEDOM WOULD BE THREATENED.—(1) Notwithstanding subsections
(a)–(c) of this section, the Attorney General may not remove an alien to
a country if the Attorney General decides that the alien’s life or freedom
would be threatened in that country because of the alien’s race, religion, na-
tionality, membership in a particular social group, or political opinion.
(2) Paragraph (1) of this subsection does not apply to an alien deportable
under section 6509 of this title or if the Attorney General decides that—
(A) the alien ordered, incited, assisted, or otherwise participated in
the persecution of an individual on account of race, religion, national-
ity, membership in a particular social group, or political opinion;
(B) the alien, having been convicted by a final judgment of a par-
ticularly serious crime, is a danger to the community of the United
States;
(C) there are serious reasons to believe that the alien has committed
a serious nonpolitical crime outside the United States before the alien
arrived in the United States; or
(D) there are reasonable grounds to believe that the alien is a danger
to the security of the United States.
(3)(A) Under paragraph (2)(B) of this subsection, an alien who has been
convicted of an aggravated felony for which the alien has been sentenced
to a total term of imprisonment of at least 5 years is deemed to have com-
mitted a particularly serious crime. This subparagraph does not preclude
the Attorney General from determining that, notwithstanding the length of
sentence imposed, an alien has been convicted of a particularly serious
crime.
(B) Under paragraph (2)(D) of this subsection, an alien described in sec-
tion 6508(b) of this title is deemed to be an alien for whom there are rea-
sonable grounds to believe that the alien is a danger to the security of the
United States.
§ 6717. Immediate removal of arriving aliens
(a) GENERAL.—An alien arriving at a port of entry of the United States
who is ordered removed, either without a hearing under section 6102(c),
6105(d), or 6107 of this title or pursuant to a removal proceeding under
section 6704 of this title initiated at the time of the alien’s arrival, shall
be removed immediately on a vessel or aircraft owned by the owner of the
vessel or aircraft on which the alien arrived in the United States, unless—
240
(1) it is impracticable to remove the alien on one of those vessels
or aircraft within a reasonable time; or
(2)(A) the alien is a stowaway who has been ordered removed under
section 6101(b) of this title;
(B) the alien has applied for asylum; and
(C) the asylum application has not been adjudicated or has been de-
nied but the alien has not exhausted all appeal rights.
(b) STAY OF REMOVAL.—(1) The Attorney General may stay the removal
of an alien under this section if the Attorney General decides that—
(A) immediate removal is not practicable or proper; or
(B) the alien is needed to testify in the prosecution of a person for
a violation of a law of the United States or of any State.
(2) During the period an alien is detained because of a stay of removal
under paragraph (1)(B) of this subsection, the Attorney General may pay
from the appropriation ‘‘Immigration and Naturalization Service—Salaries
and Expenses’’—
(A) the cost of maintenance of the alien; and
(B) a witness fee of $1 a day.
(3) The Attorney General may release an alien whose removal is stayed
under paragraph (1)(B) of this subsection on—
(A) a bond of at least $500 with security approved by the Attorney
General;
(B) condition that the alien appear when required as a witness and
for removal; and
(C) other conditions the Attorney General may prescribe.
§ 6718. Requirements of persons providing transportation
(a) REMOVAL BY PERSON BRINGING ALIEN TO UNITED STATES.—An
owner, agent, master, commanding officer, person in charge, purser, or con-
signee of a vessel or aircraft bringing to the United States an alien who
is ordered removed (except an alien crewmember) shall—
(1) receive the alien back on the vessel or aircraft or another vessel
or aircraft owned or operated by the same interests; and
(2) take the alien to the foreign country to which the alien is ordered
removed.
(b) ALIEN STOWAWAYS.—(1) An owner, agent, master, commanding offi-
cer, charterer, or consignee of a vessel or aircraft arriving in the United
States with an alien stowaway—
(A) shall detain the alien on the vessel or aircraft, or at a place the
Attorney General designates, until completion of the inspection of the
alien by an immigration officer;
241
(B) may not permit the stowaway to land in the United States, ex-
cept under regulations of the Attorney General temporarily for—
(i) medical treatment;
(ii) detention by the Attorney General; or
(iii) departure or removal; and
(C) if ordered by an immigration officer, shall remove the stowaway
on the vessel or aircraft or on another vessel or aircraft.
(2) The Attorney General shall grant a timely request to remove the stow-
away under paragraph (1)(C) of this subsection on a vessel or aircraft other
than the one on which the stowaway arrived if the requester has obtained
any travel documents necessary for departure or repatriation of the stow-
away and removal of the stowaway will not be unreasonably delayed.
(c) COMPLIANCE WITH ORDER OF ATTORNEY GENERAL.—An owner,
agent, master, commanding officer, person in charge, purser, or consignee
of a vessel, aircraft, or other transportation line shall comply with an order
of the Attorney General to take on board, guard safely, and transport to
the destination specified any alien ordered to be removed under this title.
§ 6719. Costs of detention, maintenance, and removal
(a) COST OF DETENTION AND MAINTENANCE PENDING REMOVAL.—(1)
Except as otherwise provided in this section, an owner of a vessel or aircraft
bringing an alien to the United States shall pay the cost of detaining and
maintaining the alien—
(A) while the alien is detained under section 6718(a) of this title;
and
(B) if the alien is a stowaway, while the alien is detained under—
(i) section 6105(c) of this title for a period not to exceed 15
days (excluding Saturdays, Sundays, and holidays) beginning on
the first day that begins on the earlier of—
(I) 72 hours after the time of the initial presentation of the
stowaway for inspection; or
(II) the time the stowaway is determined to have a credible
fear of persecution;
(ii) section 6718(b)(1) (A) or (B)(i) of this title; or
(iii) section 6718(b)(1)(B) (ii) or (iii) of this title for the period
of time reasonably necessary for the owner to arrange for repatri-
ation or removal of the stowaway, including obtaining necessary
travel documents, but not to extend beyond the date on which it
is ascertained that those travel documents cannot be obtained
from the country to which the stowaway is to be returned.
(2) Paragraph (1) of this subsection does not apply if—
(A) the alien is a crewmember;
242
(B) the alien has an immigrant visa;
(C) the alien has a nonimmigrant visa or other documentation au-
thorizing the alien to apply for temporary admission to the United
States and applies for admission within 120 days after the date the
visa or documentation was issued;
(D) the alien has a reentry permit and applies for admission within
120 days after the date of the alien’s last inspection and admission;
(E)(i) the alien has a nonimmigrant visa or other documentation au-
thorizing the alien to apply for temporary admission to the United
States or a reentry permit;
(ii) the alien applies for admission more than 120 days after the date
the visa or documentation was issued or after the date of the last in-
spection and admission under the reentry permit; and
(iii) the owner of the vessel or aircraft satisfies the Attorney General
that the existence of the condition related to inadmissibility could not
have been discovered by exercising reasonable care before the alien
boarded the vessel or aircraft; or
(F) the individual claims to be a national of the United States and
has a United States passport.
(b) COST OF REMOVAL AT TIME OF ARRIVAL.—(1) If an alien is a stow-
away or is ordered removed, either without a hearing under section 6102(c),
6105(d), or 6107 of this title or pursuant to a removal proceeding under
section 6704 of this title initiated at the time of the alien’s arrival, the
owner of the vessel or aircraft on which the alien arrived in the United
States shall pay the transportation cost of removing the alien.
(2) If removal is on a vessel or aircraft not owned by the owner of the
vessel or aircraft on which the alien arrived in the United States, the Attor-
ney General may—
(A) pay the cost from the appropriation ‘‘Immigration and Natu-
ralization Service—Salaries and Expenses’’; and
(B) recover the amount of the cost in a civil action from the owner,
agent, or consignee of the vessel or aircraft (if any) on which the alien
arrived in the United States.
(c) COST
OF REMOVAL
FOR ALIENS ADMITTED
OR PERMITTED TO
LAND.—(1) Except as otherwise provided in this subsection, the cost of re-
moval of an alien who has been admitted or permitted to land and is or-
dered removed shall be paid from the appropriation ‘‘Immigration and Nat-
uralization Service—Salaries and Expenses’’.
(2) The cost of removal from the port of removal may be charged to any
owner of the vessel, aircraft, or other transportation line by which the alien
came to the United States if the alien—
243
(A) is admitted to the United States (other than lawfully admitted
for permanent residence) and is ordered removed within 5 years after
the date of admission based on a ground that existed before or at the
time of admission; or
(B) is a crewmember permitted to land temporarily under section
2703 of this title and is ordered removed within 5 years after the date
of landing.
(3) The cost of removal from the port of removal may be paid from the
appropriation ‘‘Immigration and Naturalization Service—Salaries and Ex-
penses’’ if—
(A) the alien has been granted voluntary departure under section
6714(a) or (b) of this title;
(B) the alien is financially unable to depart at the alien’s own ex-
pense; and
(C) the Attorney General considers the alien’s removal to be in the
best interest of the United States.
§ 6720. Aliens requiring personal care during removal
(a) GENERAL.—If the Attorney General believes that an alien being re-
moved requires personal care because of the alien’s mental or physical con-
dition, the Attorney General may employ a suitable individual to accompany
and care for the alien until the alien arrives at the final destination.
(b) COST.—The cost of providing the service described in subsection (a)
of this section shall be paid in the same manner as the cost of removing
the accompanied alien under this chapter.
§ 6721. Cancellation of removal and adjustment of status
(a) PERMANENT RESIDENTS.—Except as provided in subsection (e) of
this section, the Attorney General may cancel removal of an alien who is
inadmissible or deportable if the alien—
(1) has been an alien lawfully admitted for permanent residence for
at least 5 years;
(2) has resided in the United States continuously for at least 7 years
after having been admitted in any status; and
(3) has not been convicted of an aggravated felony.
(b) NON-PERMANENT RESIDENTS.—Except as provided in subsection (e)
of this section, the Attorney General may cancel removal of an alien who
is inadmissible or deportable if the alien—
(1) has been physically present in the United States for a continuous
period of at least 10 years immediately preceding the date of the appli-
cation for cancellation;
(2) has been an individual of good moral character during that pe-
riod;
244
(3) has not been convicted of an offense described in section 6309(a)
(1)–(5) or (7), 6506 (a)–(d) or (f), or 6507 (except subsection (b)(4))
of this title; and
(4) establishes that removal would result in exceptional and ex-
tremely unusual hardship to the alien’s spouse, parent, or child, who
is a citizen of the United States or an alien lawfully admitted for per-
manent residence.
(c) BATTERED SPOUSES AND CHILDREN.—(1) The Attorney General may
cancel removal of an alien who is inadmissible or deportable if the alien
demonstrates that—
(A)(i) 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
(ii) the alien 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 that citizen or permanent
resident parent;
(B) the alien has been physically present in the United States for
a continuous period of at least 3 years immediately preceding the date
of the application for cancellation;
(C) the alien has been an individual of good moral character during
that period;
(D) the alien—
(i) is not inadmissible under section 6309(a)(1)–(5) or (7),
6310, or 6311 of this title;
(ii) is not deportable under section 6502, 6506(a)–(d) or (f),
6507 (except subsection (b)(4)), 6508, or 6509 of this title; and
(iii) 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, if the alien is a child, to the alien’s parent.
(2) In acting on an application under this subsection, the Attorney Gen-
eral shall consider any credible evidence relevant to the application. The de-
termination of what evidence is credible and the weight to be given that evi-
dence is within the sole discretion of the Attorney General.
(d) 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 subsection (b)
or (c) of this section. The number of adjustments under this subsection may
not exceed 4,000 in any fiscal year. The Attorney General shall record the
alien’s lawful admission for permanent residence as of the date of the Attor-
245
ney General’s cancellation of removal under subsection (b) or (c) or the de-
termination under this subsection.
(e) ALIENS INELIGIBLE FOR RELIEF.—Subsections (a) and (b) of this
section do not apply to the following aliens:
(1) An alien who entered the United States as a crewmember after
June 30, 1964.
(2) An alien who was admitted to the United States as a non-
immigrant exchange alien classified under section 2312(a) of this title,
or has acquired the status of such a nonimmigrant exchange alien after
admission, to receive graduate medical education or training, regardless
of whether the alien is subject to or has fulfilled the 2-year foreign resi-
dence requirement of section 8304(a) of this title.
(3) An alien who—
(A) was admitted to the United States as a nonimmigrant ex-
change alien classified under section 2312(a) of this title or has
acquired the status of such a nonimmigrant exchange alien after
admission, other than to receive graduate medical education or
training;
(B) is subject to the 2-year foreign residence requirement of
section 8304(a) of this title; and
(C) has not fulfilled or received a waiver of that requirement.
(4) An alien who is inadmissible under section 6310 or 6311 or de-
portable under section 6508 or 6509 of this title.
(5) An alien who is described in section 6716(d)(2)(A) of this title.
(6) An alien whose removal previously has been canceled under this
section.
(7) An alien who has been granted relief under section 212(c) of the
Immigration and Nationality Act or whose deportation was suspended
under section 244(a) of that Act, as those sections were in effect before
September 30, 1996.
(f) SPECIAL RULES RELATED TO CONTINUOUS RESIDENCE OR PHYSICAL
PRESENCE.—(1) For purposes of this section, any period of continuous resi-
dence or continuous physical presence in the United States is deemed to end
at the earlier of—
(A) when the alien is served a notice to appear under section
6703(a) of this title; or
(B) when the alien commits an offense referred to in section
6309(a)(1)–(5) or (7) of this title that makes the alien inadmissible
under section 6309(a)(1)–(5) or (7) or deportable under section
6506(a)–(d) or (f), 6508, or 6509 of this title.
246
(2) An alien has not maintained continuous physical presence in the Unit-
ed States under subsections (b) and (c) of this section if the alien has de-
parted from the United States for any one period of more than 90 days
or any periods totaling more than 180 days.
(3) The requirements of continuous residence or continuous physical pres-
ence in the United States under subsections (a)–(c) of this section do not
apply to an alien who—
(A) has served a minimum period of 24 months in an active-duty
status in the armed forces of the United States;
(B) if separated from that service, was separated under honorable
conditions; and
(C) was in the United States at the time of the alien’s enlistment
or induction.
(g) ANNUAL LIMITATION.—The Attorney General may not cancel the re-
moval and adjust the status under this section of a total of more than 4,000
aliens in any fiscal year. This subsection applies regardless of when an alien
applied for the cancellation and adjustment.
§ 6722. Places of detention
(a) GENERAL.—The Attorney General shall arrange for appropriate
places of detention for aliens detained pending removal or a decision on re-
moval. When Federal Government facilities are unavailable or facilities
adapted or suitably located for detention are unavailable for rental, the At-
torney General may expend from the appropriation ‘‘Immigration and Natu-
ralization Service—Salaries and Expenses’’, without regard to section 3709
of the Revised Statutes (41 U.S.C. 5), amounts necessary to acquire land
and to acquire, build, remodel, repair, and operate facilities (including living
quarters for immigration officers if not otherwise available) necessary for
detention.
(b) DETENTION FACILITIES
OF IMMIGRATION
AND NATURALIZATION
SERVICE.—Prior to initiating any project for the construction of any new
detention facility for the Immigration and Naturalization Service, the Com-
missioner of Immigration and Naturalization shall consider the availability
for purchase or lease of any existing prison, jail, detention center, or other
comparable facility suitable for that use.
§ 6723. No enforceable rights created
Sections 6703(d), 6705, 6706, 6715–6720, 6722, and 6724 of this title
do not create any substantive or procedural right or benefit that is legally
enforceable by any party against the Federal Government, its departments,
agencies, instrumentalities, or officers, or any other person.
247
§ 6724. Review by Attorney General and Comptroller Gen-
eral of certain proceedings
(a) ATTORNEY GENERAL.—The Attorney General shall review and evalu-
ate removal proceedings conducted under sections 6705 and 6706 of this
title.
(b) COMPTROLLER GENERAL.—The Comptroller General shall monitor,
review, and evaluate removal proceedings conducted under sections 6705
and 6706 of this title.
CHAPTER 69—ALIEN TERRORIST REMOVAL
PROCEDURES
Sec.
6901.
Definitions.
6902.
Removal court.
6903.
Application for removal hearing.
6904.
Removal hearing.
6905.
Appeals.
6906.
Custody and release pending removal hearing.
6907.
Custody and release after removal hearing.
§ 6901. Definitions
In this chapter—
(1) ‘‘alien terrorist’’ means an alien described in section 6508(b) of
this title.
(2) ‘‘classified information’’ has the same meaning given that term
in section 1(a) of the Classified Information Procedures Act (18 App.
U.S.C.).
(3) ‘‘national security’’ has the same meaning given that term in sec-
tion 1(b) of the Classified Information Procedures Act (18 App.
U.S.C.).
(4) ‘‘removal court’’ means the court described in section 6902 of
this title.
(5) ‘‘removal hearing’’ means the hearing described in section 6904
of this title.
(6) ‘‘special attorney’’ means an attorney on the panel established
under section 6902(e) of this title.
§ 6902. Removal court
(a) DESIGNATION OF JUDGES.—The Chief Justice of the United States
shall publicly designate 5 district court judges from 5 of the United States
judicial circuits who shall constitute a removal court with jurisdiction to
conduct all removal proceedings under this chapter. The Chief Justice may
designate the same judges under this section as are designated under sec-
tion 103(a) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1803(a)).
248
(b) TERMS.—Each judge designated under subsection (a) of this section
shall serve for a term of 5 years and be eligible for redesignation, except
that of the judges first designated—
(1) one shall serve for a term of one year;
(2) one shall serve for a term of 2 years;
(3) one shall serve for a term of 3 years; and
(4) one shall serve for a term of 4 years.
(c) CHIEF JUDGE.—(1) The Chief Justice shall publicly designate one of
the judges of the removal court to be the chief judge of the removal court.
(2) The chief judge shall—
(A) prescribe rules to facilitate the functioning of the removal court;
and
(B) assign the consideration of cases to the various judges on the
removal court.
(d) EXPEDITIOUS AND CONFIDENTIAL NATURE OF PROCEEDINGS.—Sec-
tion 103(c) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1803(c)) applies to removal proceedings under this chapter in the same
manner as it applies to proceedings under that Act.
(e) PANEL OF SPECIAL ATTORNEYS.—The removal court shall provide for
the designation of a panel of attorneys each of whom—
(1) has a security clearance that allows the attorney access to classi-
fied information; and
(2) has agreed to represent permanent resident aliens with respect
to classified information under section 6904(e)(3) of this title in ac-
cordance with, and subject to the penalties under, this chapter.
§ 6903. Application for removal hearing
(a) FILING OF APPLICATION.—(1) If the Attorney General has classified
information that an alien is an alien terrorist, the Attorney General may
seek removal of the alien under this chapter by filing an application with
the removal court. The application shall contain—
(A) the identity of the attorney in the Department of Justice making
the application;
(B) a certification by the Attorney General or the Deputy Attorney
General that the application satisfies the requirements of this section;
(C) the identity of the alien for whom authorization for the removal
proceeding under this chapter is sought; and
(D) a statement of the facts and circumstances relied on by the At-
torney General to establish probable cause that—
(i) the alien is an alien terrorist;
(ii) the alien is physically present in the United States; and
249
(iii) removal of the alien other than under this chapter would
pose a risk to the national security of the United States.
(2) An application under this section shall be submitted ex parte and in
camera and be filed under seal with the removal court.
(b) RIGHT TO DISMISS.—The Attorney General may dismiss a removal
proceeding under this chapter at any stage of the proceeding.
(c) CONSIDERATION OF APPLICATION.—(1) In deciding whether to grant
an application under this section, a single judge of the removal court may
consider, ex parte and in camera, in addition to the information contained
in the application—
(A) other information, including classified information, presented
under oath or affirmation; and
(B) testimony received in any hearing on the application, of which
a verbatim record shall be kept.
(2) The judge shall issue an order granting the application if the judge
finds probable cause to believe that—
(A) the alien has been correctly identified and is an alien terrorist
present in the United States; and
(B) removal of the alien other than under this chapter would pose
a risk to the national security of the United States.
(3) If the judge denies the order requested in the application, the judge
shall prepare a written statement of the reasons for the denial, taking all
necessary precautions not to disclose any classified information contained in
the application.
(d) EXCLUSIVE PROVISIONS.—If an order is issued under this section
granting an application—
(1) the rights of the alien regarding removal shall be governed only
by this chapter; and
(2) except as they are specifically referenced in this chapter, no other
provisions of this title apply.
§ 6904. Removal hearing
(a) GENERAL.—If an application for an order is approved under section
6903(c)(2) of this title, a removal hearing shall be conducted under this sec-
tion as expeditiously as practicable to determine whether the alien should
be removed from the United States on the ground that the alien is an alien
terrorist. The removal hearing shall be open to the public.
(b) NOTICE.—An alien who is the subject of a removal hearing under this
chapter shall be given reasonable notice of—
(1) the nature of the charges against the alien, including a general
account of the basis for the charges; and
(2) the time and place at which the hearing will be held.
250
(c) RIGHTS IN HEARING.—(1) The alien has a right to be present at the
hearing and to be represented by counsel. An alien financially unable to ob-
tain counsel is entitled to have counsel assigned to represent the alien. As-
signed counsel shall be appointed by the judge pursuant to the plan for fur-
nishing representation for any person financially unable to obtain adequate
representation for the district in which the hearing is conducted, as provided
for in section 3006A of title 18. That section applies and, for purposes of
determining the maximum amount of compensation, the matter shall be
treated as if a felony were charged.
(2) Subject to subsection (e) of this section, the alien shall have a reason-
able opportunity to examine the evidence against the alien, present evidence,
and cross-examine witness.
(3) A verbatim record of the proceedings and of all testimony and evi-
dence offered or produced at the hearing shall be kept.
(4) The decision of the judge regarding removal shall be based only on
the evidence introduced at the removal hearing.
(d) SUBPENAS.—(1) At any time before the conclusion of the removal
hearing, the alien or the Attorney General may request the judge to issue
a subpena for a witness on a satisfactory showing that the witness is nec-
essary for the determination of a material matter. The subpena also may
command the person to whom it is directed to produce records or other ob-
jects designated in the subpena. The request for the subpena may be made
ex parte except that the judge shall inform the Attorney General of any re-
quest by the alien for a subpena if compliance with the subpena would re-
veal classified evidence or the source of classified evidence. The Attorney
General shall be given a reasonable opportunity to oppose the issuance of
such a subpena.
(2) If an application for a subpena by the alien also makes a showing
that the alien is financially unable to pay for the attendance of a requested
witness, the court may order the costs incurred by the process and the fees
of the witness to be paid from the appropriation ‘‘Immigration and Natu-
ralization Service—Salaries and Expenses’’.
(3) A subpena under this subsection may be served anywhere in the Unit-
ed States.
(4) A witness subpenaed under this subsection shall receive the same fees
and expenses as a witness subpenaed in a civil proceeding in a court of the
United States.
(5) This subsection does not allow an alien to have access to classified
information.
(e) DISCOVERY.—(1) In a removal proceeding under this chapter—
251
(A) the Attorney General may use the fruits of electronic surveillance
and unconsented physical searches authorized under the Foreign Intel-
ligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) without re-
gard to section 106(c), (e), (f), (g), or (h) of that Act (50 U.S.C.
1806(c), (e), (f), (g), (h)), and discovery of information derived under
that Act or otherwise collected for national security purposes may not
be authorized if disclosure would present a risk to the national security
of the United States;
(B) an alien may not suppress evidence that the alien alleges was
unlawfully obtained; and
(C) section 3504 of title 18 and section 106(c) of the Foreign Intel-
ligence Surveillance Act of 1978 (50 U.S.C. 1806(c)) do not apply if
the Attorney General determines that public disclosure would pose a
risk to the national security of the United States because it would dis-
close classified information or otherwise threaten the integrity of a
pending investigation.
(2) This chapter does not prevent the Attorney General from seeking pro-
tective orders or asserting privileges ordinarily available to the Federal Gov-
ernment to protect against the disclosure of classified information, including
the invocation of the military and State secrets privileges.
(3)(A) The judge shall examine, ex parte and in camera, any evidence for
which the Attorney General determines that public disclosure would pose a
risk to the national security of the United States or to the security of an
individual because it would disclose classified information. The alien and the
public may not be informed of the evidence or its sources except through
reference to the summary provided under this paragraph. However, the At-
torney General, after coordination with the originating agency, may elect to
introduce classified information in open session.
(B) With respect to that information, the Attorney General shall submit
to the removal court an unclassified summary of the specific evidence that
does not pose that risk.
(C) Not later than 15 days after the summary is submitted, the judge
shall approve the summary if the judge finds that it is sufficient to enable
the alien to prepare a defense. The Attorney General shall deliver to the
alien a copy of the unclassified summary approved under this subparagraph.
(D)(i) If an unclassified summary is not approved by the removal court
under subparagraph (C) of this paragraph, the Attorney General shall be
given 15 days to correct the deficiencies identified by the court and submit
a revised unclassified summary.