C.F.R. » Title 8 » CHAPTER V—EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, DEPARTMENT OF JUSTICE › SUBCHAPTER B—IMMIGRATION REGULATIONS › PART 1240—PROCEEDINGS TO DETERMINE REMOVABILITY OF ALIENS IN THE UNITED STATES › Subpart A—Removal Proceedings

8 C.F.R. § 1240.10

Hearing

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(a) Opening. In a removal proceeding, the immigration judge shall:

(1) Advise the respondent of his or her right to representation, at no expense to the government, by counsel of his or her own choice authorized to practice in the proceedings and require the respondent to state then and there whether he or she desires representation;

(2) Advise the respondent of the availability of pro bono legal services for the immigration court location at which the hearing will take place, and ascertain that the respondent has received a list of such pro bono legal service providers.

(3) Ascertain that the respondent has received a copy of appeal rights.

(4) Advise the respondent that he or she will have a reasonable opportunity to examine and object to the evidence against him or her, to present evidence in his or her own behalf and to cross-examine witnesses presented by the government (but the respondent shall not be entitled to examine such national security information as the government may proffer in opposition to the respondent's admission to the United States or to an application by the respondent for discretionary relief);

(5) Place the respondent under oath;

(6) Read the factual allegations and the charges in the notice to appear to the respondent and explain them in non-technical language; and

(7) Enter the notice to appear as an exhibit in the Record of Proceeding.

(b) Public access to hearings. Removal hearings shall be open to the public, except that the immigration judge may, in his or her discretion, close proceedings as provided in § 1003.27 of this chapter.

(c) Pleading by respondent. The immigration judge shall require the respondent to plead to the notice to appear by stating whether he or she admits or denies the factual allegations and his or her removability under the charges contained therein. If the respondent admits the factual allegations and admits his or her removability under the charges and the immigration judge is satisfied that no issues of law or fact remain, the immigration judge may determine that removability as charged has been established by the admissions of the respondent. The immigration judge shall not accept an admission of removability from an unrepresented respondent who is incompetent or under the age of 18 and is not accompanied by an attorney or legal representative, a near relative, legal guardian, or friend; nor from an officer of an institution in which a respondent is an inmate or patient. When, pursuant to this paragraph, the immigration judge does not accept an admission of removability, he or she shall direct a hearing on the issues.

(d) Issues of removability. When removability is not determined under the provisions of paragraph (c) of this section, the immigration judge shall request the assignment of DHS counsel, and shall receive evidence as to any unresolved issues, except that no further evidence need be received as to any facts admitted during the pleading. The alien shall provide a court certified copy of a Judicial Recommendation Against Deportation (JRAD) to the immigration judge when such recommendation will be the basis of denying any charge(s) brought by DHS in the proceedings against the alien. No JRAD is effective against a charge of deportability under former section 241(a)(11) of the Act or if the JRAD was granted on or after November 29, 1990.

(e) Additional charges in removal hearings. At any time during the proceeding, additional or substituted charges of inadmissibility and/or deportability and/or factual allegations may be lodged by DHS in writing. The alien in removal proceedings shall be served with a copy of these additional charges and allegations. The immigration judge shall read the additional factual allegations and charges to the alien and explain them to him or her. The immigration judge shall advise the alien, if he or she is not represented by counsel, that the alien may be so represented, and that he or she may be given a reasonable continuance to respond to the additional factual allegations and charges. Thereafter, the provision of § 1240.6(b) relating to pleading shall apply to the additional factual allegations and charges.

(f) Country of removal. With respect to an arriving alien covered by section 241(b)(1) of the Act, the country, or countries in the alternative, to which the alien may be removed will be determined pursuant to section 241(b)(1) of the Act. In any other case, the immigration judge shall notify the respondent that if he or she is finally ordered removed, the country of removal will in the first instance be the country designated by the respondent, except as otherwise provided under section 241(b)(2) of the Act, and shall afford him or her an opportunity then and there to make such designation. The immigration judge shall also identify for the record a country, or countries in the alternative, to which the alien's removal may be made pursuant to section 241(b)(2) of the Act if the country of the alien's designation will not accept him or her into its territory, or fails to furnish timely notice of acceptance, or if the alien declines to designate a country. In considering alternative countries of removal, acceptance or the existence of a functioning government is not required with respect to an alternative country described in section 241(b)(1)(C)(i)-(iii) of the Act or a removal country described in section 241(b)(2)(E)(i)-(iv) of the Act. See 8 CFR 241.15.

[62 FR 10367, Mar. 6, 1997. Redesignated in part and duplicated in part from part 240 at 68 FR 9838, 9840, Feb. 28, 2003, as amended at 70 FR 674, Jan. 5, 2005; 80 FR 59513, Oct. 1, 2015; 86 FR 70724, Dec. 13, 2021]
Notes of Decisions
Cited in 235 cases (47 in the last 5 years), 2003–2026 · leading case: Leslie v. Attorney Gen. of US, 611 F.3d 171 (3rd Cir. 2010).
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Leslie v. Attorney Gen. of US, 611 F.3d 171 (3rd Cir. 2010). · cites it 12× “Neville Sylvester Leslie petitions for review of a final order of removal of the Board of Immigration Appeals (“Board”), arguing that the Immigration Judge’s (“IJ”) failure to advise him of the availability of free legal services, as required under 8 C.F.R. § 1240.10 (a)(2)-(3),…”
Perez-Mejia v. Holder, 663 F.3d 403 (9th Cir. 2011). · cites it 12× “As explained below, admissions by an alien to facts alleged in an NTA, and concessions of removability, made in the 8 C.F.R. § 1240.10 (c) “pleading stage” of removal proceedings may be relied on by an IJ.”
Perez-Mejia v. Holder, 641 F.3d 1143 (9th Cir. 2011). · cites it 12× “As explained below, admissions by an alien to facts alleged in an NTA, and concessions concerning matters of law, made in the 8 C.F.R. § 1240.10 (c) “pleading stage” of removal proceedings are binding, just as admissions made by a defendant in an answer to a civil complaint are…”
Celia Martinez v. William Barr, 941 F.3d 907 (9th Cir. 2019). · cites it 4× “8 C.F.R. § 1240.10 (c) (emphasis added). The Government may add or substitute immigration charges and factual allegations in writing “at any time during the proceeding,” provided that “[t]he alien in removal proceedings shall be served with a copy of these additional charges and…”
Picca v. Mukasey, 512 F.3d 75 (2d Cir. 2008). · cites it 8× “Regulations in effect at the time of Picca’s removal hearing required that the IJ, inter alia: (1) “[a]d-vise the respondent of his or her right to representation, at no expense to the government”; (2) “[a]dvise the respondent of the availability of free legal services provided…”
C.J.L.G., a Juv. Male v. Jefferson Sessions, 880 F.3d 1122 (9th Cir. 2018). · cites it 8× “§ 1229a(b)(4)(A) (substantially the same); 8 C.F.R. § 1240.10 (a)(1)–(2). We have held that a corollary of this privilege is an immigration judge’s (“IJ”) duty to inform an alien of his right to counsel, and to ensure that any decision to waive that right be knowing and…”
Pagayon v. Holder, 675 F.3d 1182 (9th Cir. 2011). · cites it 3× “at 410-11 (citing 8 C.F.R. § 1240.10 (c), (d)). At the pleading stage, the IJ asks the alien “whether he or she admits or denies the factual allegations and his or her removability under the charges contained therein.”
J.E. F.M. Ex Rel. Ekblad v. Lynch, 837 F.3d 1026 (9th Cir. 2016). · cites it 2× “8 C.F.R. § 1240.10 (c). Immigration judges also must ensure that any waiver of the right to counsel is knowing and voluntary; on review, we can “indulge every reasonable presumption against waiver,” United States v.”
Watson v. United States, 865 F.3d 123 (2d Cir. 2017). · cites it 2× “See 8 C.F.R. 1240.10. 7 The critical difference between the criminal and immigration removal proceedings is that no such assistance of counsel is ensured during the detention and removal process, which means that a detained individual — even a detained U.”
Santiago-Rodriguez v. Holder, 657 F.3d 820 (9th Cir. 2011). · cites it 2× “" 8 C.F.R. § 1240.10 (c). [13] If the individual admits the factual allegations at this stage and the IJ accepts the admission, it binds the alien and "relieve[s] the [G]overnment of the obligation to present any evidence on th[at] factual question.”
Gor v. Holder, 607 F.3d 180 (6th Cir. 2010). · cites it 4× “See 8 C.F.R. § 1240.10 (a). "It is an elemental principle of administrative law that agencies are bound to follow their own regulations.”
United States v. Pedro Silvestre-Gregorio, 983 F.3d 848 (6th Cir. 2020). · cites it 2× “8 C.F.R. § 1240.10 (a)(1), (2). Silvestre-Gregorio does not claim that he was deprived of this right; nor could he.”
Show all 235 citing cases →
— 8 C.F.R. § 1240.10(a)(1) — 1 case
Nicolas Morales v. Attorney Gen. United States (3rd Cir. 2022).
— 8 C.F.R. § 1240.10(a)(4) — 1 case
Johnson v. Attorney Gen. of the United States, 488 F. App'x 600 (3rd Cir. 2012).
— 8 C.F.R. § 1240.10(c) — 2 cases
Israel Amador-Morales v. Merrick Garland, 94 F.4th 701 (8th Cir. 2024).
Franklyn Allen v. Attorney Gen. United States, 548 F. App'x 783 (3rd Cir. 2013).
— 8 C.F.R. § 1240.10(e) — 1 case
Raul Rodriguez v. Attorney Gen. United State, 844 F.3d 392 (3rd Cir. 2016).
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