Sec. 1401. Prevention of erroneous in absentia orders of removal
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/bill/117/s/5353/is/section-1401·A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
Section 239(a) of the Immigration and Nationality Act ( 8 U.S.C. 1229(a) ) is amended— in paragraph (1)(F), by inserting the Secretary of Homeland Security or before the Attorney General each place such term appears; and in paragraph (2)(A) by striking the alien or to the alien’s counsel of record and inserting the alien and to the alien’s counsel of record. . Section 240(b) of the Immigration and Nationality Act ( 8 U.S.C. 1229a(b) ), as amended by section 1203, is further amended— in paragraph (5)— by amending subparagraph
(A)to read as follows: Any alien who, after a proceeding under this section is rescheduled by an immigration judge due to the alien’s failure to attend such proceeding, and written notice required under paragraph
(1)or
(2)of section 239(a) has been provided to the alien and the alien’s counsel of record, does not attend a proceeding under this section, may be ordered removed in absentia if the Department of Homeland Security establishes by clear, unequivocal, and convincing evidence that— sufficient written notice was so provided; the alien is removable; and in the case of an alien required to periodically report to the Department of Homeland Security, the alien has demonstrated a pattern of failing to report. The written notice by the Secretary of Homeland Security or the Attorney General shall be considered sufficient for purposes of this subparagraph if— the notice includes— the accurate date, time, and court location at which the alien is required to appear; and the date on which the notice was issued; the notice is provided at the most recent complete physical address provided under section 239(a); and the certificate of service for the notice indicates that oral notice and a recitation of the consequences of failure to appear were provided— in the native language of the alien; or in a language the alien understands. ; and by amending paragraph
(C)to read as follows: Such an order may be rescinded only— upon a motion to reopen filed at any time after the date of the order of removal if the alien demonstrates that the failure to appear was because of exceptional circumstances; upon a motion to reopen filed at any time if the alien demonstrates that the alien did not receive notice in accordance with paragraph
(1)or
(2)of section 239(a) or the alien demonstrates that the alien was in Federal or State custody and the failure to appear was through no fault of the alien; in the case of an alien who is a minor child, upon a motion to reopen filed at any time; or upon a motion to reopen filed at any time if the alien has a pending application for asylum, withholding of removal, or protection under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, done at New York December 10, 1984, or demonstrates that he or she has a credible claim to any such protection. The filing of the motion to reopen described in clause
(i)shall stay the removal of the alien pending disposition of the motion by the immigration judge. ; and by adding at the end the following: Before an immigration judge conducts a proceeding under this section, the Secretary of Homeland Security shall report to the immigration judge the extent to which the alien has complied with any requirement to report periodically the whereabouts of the alien to the Secretary of Homeland Security. .
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