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rescinded only—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
�
