TITLE III--INSPECTION, APPREHENSION, DETENTION, ADJUDICATION, AND
REMOVAL OF INADMISSIBLE AND DEPORTABLE ALIENS
Subtitle A--Revision of Procedures for Removal of Aliens

SEC. 303. APPREHENSION AND DETENTION OF ALIENS (REVISED
SECTION 236).

(a) In General.--Section 236 (8 U.S.C. 1226) is amended to
read as follows:


``apprehension and detention of aliens

``Sec. 236. (a) Arrest, Detention, and Release.--On a
warrant issued by the Attorney General, an alien may be
arrested and detained pending a decision on whether the alien
is to be removed from the United States. Except as provided
in subsection (c) and pending such decision, the Attorney
General--
``(1) may continue to detain the arrested alien; and
``(2) may release the alien on--
``(A) bond of at least $1,500 with security approved by,
and containing 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 permit), unless the alien is lawfully
admitted for permanent residence or otherwise would (without
regard to removal proceedings) be provided such
authorization.
``(b) Revocation of Bond or Parole.--The Attorney General
at any time may revoke a bond or parole authorized under
subsection (a), rearrest the alien under the original
warrant, and detain the alien.
``(c) Detention of Criminal Aliens.--
``(1) Custody.--The Attorney General shall take into
custody any alien who--
``(A) is inadmissible by reason of having committed any
offense covered in section 212(a)(2),
``(B) is deportable by reason of having committed any
offense covered in section 237(a)(2)(A)(ii), (A)(iii), (B),
(C), or (D),
``(C) is deportable under section 237(a)(2)(A)(i) on the
basis of an offense for which the alien has been sentence to
a term of imprisonment of at least 1 year, or
``(D) is inadmissible under section 212(a)(3)(B) or
deportable under section 237(a)(4)(B),
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.
``(2) Release.--The Attorney General may release an alien
described in paragraph (1) only if the Attorney General
decides pursuant to section 3521 of title 18, United States
Code, that release of the alien from custody 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 investigation, and the alien satisfies the Attorney
General that the alien will not pose a danger to the safety
of other persons or of property and is likely to appear for
any scheduled proceeding. A decision relating to such release
shall take place in accordance with a procedure that
considers the severity of the offense committed by the alien.
``(d) Identification of Criminal Aliens.--(1) The Attorney
General shall devise and implement a system--
``(A) to make available, daily (on a 24-hour basis), to
Federal, State, and local authorities the investigative
resources of the Service to determine whether individuals
arrested by such authorities for aggravated felonies are
aliens;

[[Page H11798]]

``(B) to designate and train officers and employees of the
Service to serve as a liaison to Federal, State, and local
law enforcement and correctional agencies and courts with
respect to the arrest, conviction, and release of any alien
charged with an aggravated felony; and
``(C) which uses computer resources to maintain a current
record of aliens who have been convicted of an aggravated
felony, and indicates those who have been removed.
``(2) The record under paragraph (1)(C) shall be made
available--
``(A) to inspectors at ports of entry and to border patrol
agents at sector headquarters for purposes of immediate
identification of any alien who was previously ordered
removed and is seeking to reenter the United States, and
``(B) to officials of the Department of State for use in
its automated visa lookout system.
``(3) Upon the request of the governor or chief executive
officer of any State, the Service shall provide assistance to
State courts in the identification of aliens unlawfully
present in the United States pending criminal prosecution.
``(e) Judicial Review.--The Attorney General's
discretionary judgment regarding the application of this
section shall not be subject to review. No court may set
aside any action or decision by the Attorney General under
this section regarding the detention or release of any alien
or the grant, revocation, or denial of bond or parole.''.
(b) Effective Date.--
(1) In general.--The amendment made by subsection (a) shall
become effective on the title III-A effective date.
(2) Notification regarding custody.--If the Attorney
General, not later than 10 days after the date of the
enactment of this Act, notifies in writing the Committees on
the Judiciary of the House of Representatives and the Senate
that there is insufficient detention space and Immigration
and Naturalization Service personnel available to carry out
section 236(c) of the Immigration and Nationality Act, as
amended by subsection (a), or the amendments made by section
440(c) of Public Law 104-132, the provisions in paragraph (3)
shall be in effect for a 1-year period beginning on the date
of such notification, instead of such section or such
amendments. The Attorney General may extend such 1-year
period for an additional year if the Attorney General
provides the same notice not later than 10 days before the
end of the first 1-year period. After the end of such 1-year
or 2-year periods, the provisions of such section 236(c)
shall apply to individuals released after such periods.
(3) Transition period custody rules.--
(A) In general.--During the period in which this paragraph
is in effect pursuant to paragraph (2), the Attorney General
shall take into custody any alien who--
(i) has been convicted of an aggravated felony (as defined
under section 101(a)(43) of the Immigration and Nationality
Act, as amended by section 321 of this division),
(ii) is inadmissible by reason of having committed any
offense covered in section 212(a)(2) of such Act,
(iii) is deportable by reason of having committed any
offense covered in section 241(a)(2)(A)(ii), (A)(iii), (B),
(C), or (D) of such Act (before redesignation under this
subtitle), or
(iv) is inadmissible under section 212(a)(3)(B) of such Act
or deportable under section 241(a)(4)(B) of such Act (before
redesignation under this subtitle),
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.
(B) Release.--The Attorney General may release the alien
only if the alien is an alien described in subparagraph
(A)(ii) or (A)(iii) and--
(i) the alien was lawfully admitted to the United States
and satisfies the Attorney General that the alien will not
pose a danger to the safety of other persons or of property
and is likely to appear for any scheduled proceeding, or
(ii) the alien was not lawfully admitted to the United
States, cannot be removed because the designated country of
removal will not accept the alien, and satisfies the Attorney
General that the alien will not pose a danger to the safety
of other persons or of property and is likely to appear for
any scheduled proceeding.

SEC. 304. REMOVAL PROCEEDINGS; CANCELLATION OF REMOVAL AND
ADJUSTMENT OF STATUS; VOLUNTARY DEPARTURE
(REVISED AND NEW SECTIONS 239 TO 240C).

(a) In General.--Chapter 4 of title II is amended--
(1) by redesignating section 239 (8 U.S.C. 1229) as section
234 and by moving such section to immediately follow section
233;
(2) by redesignating section 240 (8 U.S.C. 1230) as section
240C; and
(3) by inserting after section 238 the following new
sections:


``initiation of removal proceedings

``Sec. 239. (a) Notice to Appear.--
``(1) In general.--In removal proceedings under section
240, written notice (in this section referred to as a `notice
to appear') shall be given in person to the alien (or, if
personal service is not practicable, through service by mail
to the alien or to the alien's counsel of record, if any)
specifying the following:
``(A) The nature of the proceedings against the alien.
``(B) The legal authority under which the proceedings are
conducted.
``(C) The acts or conduct alleged to be in violation of
law.
``(D) The charges against the alien and the statutory
provisions alleged to have been violated.
``(E) The alien may be represented by counsel and the alien
will be provided (i) a period of time to secure counsel under
subsection (b)(1) and (ii) a current list of counsel prepared
under subsection (b)(2).
``(F)(i) The requirement that the alien must immediately
provide (or have provided) the Attorney General with a
written record of an address and telephone number (if any) at
which the alien may be contacted respecting proceedings under
section 240.
``(ii) The requirement that the alien must provide the
Attorney General immediately with a written record of any
change of the alien's address or telephone number.
``(iii) The consequences under section 240(b)(5) of failure
to provide address and telephone information pursuant to this
subparagraph.
``(G)(i) The time and place at which the proceedings will
be held.
``(ii) The consequences under section 240(b)(5) of the
failure, except under exceptional circumstances, to appear at
such proceedings.
``(2) Notice of change in time or place of proceedings.--
``(A) In general.--In removal proceedings under section
240, in the case of any change or postponement in the time
and place of such proceedings, subject to subparagraph (B) a
written notice shall be given in person to the alien (or, if
personal service is not practicable, through service by mail
to the alien or to the alien's counsel of record, if any)
specifying--
``(i) the new time or place of the proceedings, and
``(ii) the consequences under section 240(b)(5) of failing,
except under exceptional circumstances, to attend such
proceedings.
``(B) Exception.--In the case of an alien not in detention,
a written notice shall not be required under this paragraph
if the alien has failed to provide the address required under
paragraph (1)(F).
``(3) Central address files.--The Attorney General shall
create a system to record and preserve on a timely basis
notices of addresses and telephone numbers (and changes)
provided under paragraph (1)(F).
``(b) Securing of Counsel.--
``(1) In general.--In order that an alien be permitted the
opportunity to secure counsel before the first hearing date
in proceedings under section 240, the hearing date shall not
be scheduled earlier than 10 days after the service of the
notice to appear, unless the alien requests in writing an
earlier hearing date.
``(2) Current lists of counsel.--The Attorney General shall
provide for lists (updated not less often than quarterly) of
persons who have indicated their availability to represent
pro bono aliens in proceedings under section 240. Such lists
shall be provided under subsection (a)(1)(E) and otherwise
made generally available.
``(3) Rule of construction.--Nothing in this subsection may
be construed to prevent the Attorney General from proceeding
against an alien pursuant to section 240 if the time period
described in paragraph (1) has elapsed and the alien has
failed to secure counsel.
``(c) Service by Mail.--Service by mail under this section
shall be sufficient if there is proof of attempted delivery
to the last address provided by the alien in accordance with
subsection (a)(1)(F).
``(d) Prompt Initiation of Removal.--(1) In the case of an
alien who is convicted of an offense which makes the alien
deportable, the Attorney General shall begin any removal
proceeding as expeditiously as possible after the date of the
conviction.
``(2) Nothing in this subsection shall be construed to
create any substantive or procedural right or benefit that is
legally enforceable by any party against the United States or
its agencies or officers or any other person.


``removal proceedings

``Sec. 240. (a) Proceeding.--
``(1) In general.--An immigration judge shall conduct
proceedings for deciding the inadmissibility or deportability
of an alien.
``(2) Charges.--An alien placed in proceedings under this
section may be charged with any applicable ground of
inadmissibility under section 212(a) or any applicable ground
of deportability under section 237(a).
``(3) Exclusive procedures.--Unless otherwise specified in
this Act, a proceeding under this section shall be the sole
and exclusive procedure for determining whether an alien may
be admitted to the United States or, if the alien has been so
admitted, removed from the United States. Nothing in this
section shall affect proceedings conducted pursuant to
section 238.
``(b) Conduct of Proceeding.--
``(1) Authority of immigration judge.--The immigration
judge shall administer oaths, receive evidence, and
interrogate, examine, and cross-examine the alien and any
witnesses. The immigration judge may issue subpoenas for the
attendance of witnesses and presentation of evidence. The
immigration judge shall have authority (under regulations
prescribed by the Attorney General) to sanction by civil
money penalty any action (or inaction) in contempt of the
judge's proper exercise of authority under this Act.
``(2) Form of proceeding.--
``(A) In general.--The proceeding may take place--
``(i) in person,
``(ii) where agreed to by the parties, in the absence of
the alien,
``(iii) through video conference, or
``(iv) subject to subparagraph (B), through telephone
conference.
``(B) Consent required in certain cases.--An evidentiary
hearing on the merits may only be conducted through a
telephone conference with the consent of the alien involved
after the alien has been advised of the right to proceed in
person or through video conference.
``(3) Presence of alien.--If it is impracticable by reason
of an alien's mental incompetency

[[Page H11799]]

for the alien to be present at the proceeding, the Attorney
General shall prescribe safeguards to protect the rights and
privileges of the alien.
``(4) Aliens rights in proceeding.--In proceedings under
this section, under regulations of the Attorney General--
``(A) the alien shall have the privilege of being
represented, at no expense to the Government, by counsel of
the alien's choosing who is authorized to practice in such
proceedings,
``(B) the alien shall have a reasonable opportunity to
examine the evidence against the alien, to present evidence
on the alien's own behalf, and to cross-examine witnesses
presented by the Government but these rights shall not
entitle the alien to examine such national security
information as the Government may proffer in opposition to
the alien's admission to the United States or to an
application by the alien for discretionary relief under this
Act, and
``(C) a complete record shall be kept of all testimony and
evidence produced at the proceeding.
``(5) Consequences of failure to appear.--
``(A) In general.--Any alien who, after written notice
required under paragraph (1) or (2) of section 239(a) has
been provided to the alien or the alien's counsel of record,
does not attend a proceeding under this section, shall be
ordered removed in absentia if the Service establishes by
clear, unequivocal, and convincing evidence that the written
notice was so provided and that the alien is removable (as
defined in subsection (e)(2)). The written notice by the
Attorney General shall be considered sufficient for purposes
of this subparagraph if provided at the most recent address
provided under section 239(a)(1)(F).
``(B) No notice if failure to provide address
information.--No written notice shall be required under
subparagraph (A) if the alien has failed to provide the
address required under section 239(a)(1)(F).
``(C) Rescission of order.--Such an order may be rescinded
only--
``(i) upon a motion to reopen filed within 180 days after
the date of the order of removal if the alien demonstrates
that the failure to appear was because of exceptional
circumstances (as defined in subsection (e)(1)), or
``(ii) upon a motion to reopen filed at any time if the
alien demonstrates that the alien did not receive notice in
accordance with paragraph (1) or (2) of section 239(a) or the
alien demonstrates that the alien was in Federal or State
custody and the failure to appear was through no fault of the
alien.
The filing of the motion to reopen described in clause (i) or
(ii) shall stay the removal of the alien pending disposition
of the motion by the immigration judge.
``(D) Effect on judicial review.--Any petition for review
under section 242 of an order entered in absentia under this
paragraph shall (except in cases described in section
242(b)(5)) be confined to (i) the validity of the notice
provided to the alien, (ii) the reasons for the alien's not
attending the proceeding, and (iii) whether or not the alien
is removable.
``(E) Additional application to certain aliens in
contiguous territory.--The preceding provisions of this
paragraph shall apply to all aliens placed in proceedings
under this section, including any alien who remains in a
contiguous foreign territory pursuant to section
235(b)(2)(C).
``(6) Treatment of frivolous behavior.--The Attorney
General shall, by regulation--
``(A) define in a proceeding before an immigration judge or
before an appellate administrative body under this title,
frivolous behavior for which attorneys may be sanctioned,
``(B) specify the circumstances under which an
administrative appeal of a decision or ruling will be
considered frivolous and will be summarily dismissed, and
``(C) impose appropriate sanctions (which may include
suspension and disbarment) in the case of frivolous behavior.
Nothing in this paragraph shall be construed as limiting the
authority of the Attorney General to take actions with
respect to inappropriate behavior.
``(7) Limitation on discretionary relief for failure to
appear.--Any alien against whom a final order of removal is
entered in absentia under this subsection and who, at the
time of the notice described in paragraph (1) or (2) of
section 239(a), was provided oral notice, either in the
alien's native language or in another language the alien
understands, of the time and place of the proceedings and of
the consequences under this paragraph of failing, other than
because of exceptional circumstances (as defined in
subsection (e)(1)) to attend a proceeding under this section,
shall not be eligible for relief under section 240A, 240B,
245, 248, or 249 for a period of 10 years after the date of
the entry of the final order of removal.
``(c) Decision and Burden of Proof.--
``(1) Decision.--
``(A) In general.--At the conclusion of the proceeding the
immigration judge shall decide whether an alien is removable
from the United States. The determination of the immigration
judge shall be based only on the evidence produced at the
hearing.
``(B) Certain medical decisions.--If a medical officer or
civil surgeon or board of medical officers has certified
under section 232(b) that an alien has a disease, illness, or
addiction which would make the alien inadmissible under
paragraph (1) of section 212(a), the decision of the
immigration judge shall be based solely upon such
certification.
``(2) Burden on alien.--In the proceeding the alien has the
burden of establishing--
``(A) if the alien is an applicant for admission, that the
alien is clearly and beyond doubt entitled to be admitted and
is not inadmissible under section 212; or
``(B) by clear and convincing evidence, that the alien is
lawfully present in the United States pursuant to a prior
admission.
In meeting the burden of proof under subparagraph (B), the
alien shall have access to the alien's visa or other entry
document, if any, and any other records and documents, not
considered by the Attorney General to be confidential,
pertaining to the alien's admission or presence in the United
States.
``(3) Burden on service in cases of deportable aliens.--
``(A) In general.--In the proceeding the Service has the
burden of establishing by clear and convincing evidence that,
in the case of an alien who has been admitted to the United
States, the alien is deportable. No decision on deportability
shall be valid unless it is based upon reasonable,
substantial, and probative evidence.
``(B) Proof of convictions.--In any proceeding under this
Act, any of the following documents or records (or a
certified copy of such an official document or record) shall
constitute proof of a criminal conviction:
``(i) An official record of judgment and conviction.
``(ii) An official record of plea, verdict, and sentence.
``(iii) A docket entry from court records that indicates
the existence of the conviction.
``(iv) Official minutes of a court proceeding or a
transcript of a court hearing in which the court takes notice
of the existence of the conviction.
``(v) An abstract of a record of conviction prepared by the
court in which the conviction was entered, or by a State
official associated with the State's repository of criminal
justice records, that indicates the charge or section of law
violated, the disposition of the case, the existence and date
of conviction, and the sentence.
``(vi) Any document or record prepared by, or under the
direction of, the court in which the conviction was entered
that indicates the existence of a conviction.
``(vii) Any document or record attesting to the conviction
that is maintained by an official of a State or Federal penal
institution, which is the basis for that institution's
authority to assume custody of the individual named in the
record.
``(C) Electronic records.--In any proceeding under this
Act, any record of conviction or abstract that has been
submitted by electronic means to the Service from a State or
court shall be admissible as evidence to prove a criminal
conviction if it is--
``(i) certified by a State official associated with the
State's repository of criminal justice records as an official
record from its repository or by a court official from the
court in which the conviction was entered as an official
record from its repository, and
``(ii) certified in writing by a Service official as having
been received electronically from the State's record
repository or the court's record repository.
A certification under clause (i) may be by means of a
computer-generated signature and statement of authenticity.
``(4) Notice.--If the immigration judge decides that the
alien is removable and orders the alien to be removed, the
judge shall inform the alien of the right to appeal that
decision and of the consequences for failure to depart under
the order of removal, including civil and criminal penalties.
``(5) Motions to reconsider.--
``(A) In general.--The alien may file one motion to
reconsider a decision that the alien is removable from the
United States.
``(B) Deadline.--The motion must be filed within 30 days of
the date of entry of a final administrative order of removal.
``(C) Contents.--The motion shall specify the errors of law
or fact in the previous order and shall be supported by
pertinent authority.
``(6) Motions to reopen.--
``(A) In general.--An alien may file one motion to reopen
proceedings under this section.
``(B) Contents.--The motion to reopen shall state the new
facts that will be proven at a hearing to be held if the
motion is granted, and shall be supported by affidavits or
other evidentiary material.
``(C) Deadline.--
``(i) In general.--Except as provided in this subparagraph,
the motion to reopen shall be filed within 90 days of the
date of entry of a final administrative order of removal.
``(ii) Asylum.--There is no time limit on the filing of a
motion to reopen if the basis of the motion is to apply for
relief under sections 208 or 241(b)(3) and is based on
changed country conditions arising in the country of
nationality or the country to which removal has been ordered,
if such evidence is material and was not available and would
not have been discovered or presented at the previous
proceeding.
``(iii) Failure to appear.--The filing of a motion to
reopen an order entered pursuant to subsection (b)(5) is
subject to the deadline specified in subparagraph (C) of such
subsection.
``(d) Stipulated Removal.--The Attorney General shall
provide by regulation for the entry by an immigration judge
of an order of removal stipulated to by the alien (or the
alien's representative) and the Service. A stipulated order
shall constitute a conclusive determination of the alien's
removability from the United States.
``(e) Definitions.--In this section and section 240A:
``(1) Exceptional circumstances.--The term `exceptional
circumstances' refers to exceptional circumstances (such as
serious illness of the alien or serious illness or death of
the spouse, child, or parent of the alien, but not including
less compelling circumstances) beyond the control of the
alien.
``(2) Removable.--The term `removable' means--
``(A) in the case of an alien not admitted to the United
States, that the alien is inadmissible under section 212, or
``(B) in the case of an alien admitted to the United
States, that the alien is deportable under section 237.