Page:United States Statutes at Large Volume 110 Part 4.djvu/753

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PUBLIC LAW 104-208—SEPT. 30, 1996 110 STAT. 3009-590 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 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 — Such an order may be rescinded only— "(i) upon a motion to reopen filed within 180 days after the date of the order of removal if the alien demonstrates that the failure to appear was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