[Code of Federal Regulations]
[Title 8, Volume 1]
[Revised as of January 1, 2001]
From the U.S. Government Printing Office via GPO Access
[CITE: 8CFR3.26]

[Page 30-31]
 
                     TITLE 8--ALIENS AND NATIONALITY
 
CHAPTER I--IMMIGRATION AND NATURALIZATION SERVICE, DEPARTMENT OF JUSTICE
 
PART 3--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW--Table of Contents
 
            Subpart C--Immigration Court--Rules of Procedure
 
Sec. 3.26  In absentia hearings.

    (a) In any exclusion proceeding before an Immigration Judge in which 
the applicant fails to appear, the Immigration Judge shall conduct an in 
absentia hearing if the Immigration Judge is satisfied that notice of 
the time and place of the proceeding was provided to the applicant on 
the record at a prior hearing or by written notice to the applicant or 
to the applicant's counsel of record on the charging document or at the 
most recent address in the Record of Proceeding.
    (b) In any deportation proceeding before an Immigration Judge in 
which the respondent fails to appear, the Immigration Judge shall order 
the respondent deported in absentia if: (1) The Service establishes by 
clear, unequivocal and convincing evidence that the respondent is 
deportable; and (2) the Immigration Judge is satisfied that written 
notice of the time and place of the proceedings and written notice of 
the consequences of failure to appear, as set forth in section 242B(c) 
of the Act (8 U.S.C. 1252b(c)), were provided to the respondent in 
person or were provided to the respondent or the respondent's counsel of 
record, if any, by certified mail.
    (c) In any removal proceeding before an Immigration Judge in which 
the alien fails to appear, the Immigration Judge shall order the alien 
removed in absentia if:
    (1) The Service establishes by clear, unequivocal, and convincing 
evidence that the alien is removable; and
    (2) The Service establishes by clear, unequivocal, and convincing 
evidence that written notice of the time and place of proceedings and 
written notice of the consequences of failure to appear

[[Page 31]]

were provided to the alien or the alien's counsel of record.
    (d) Written notice to the alien shall be considered sufficient for 
purposes of this section if it was provided at the most recent address 
provided by the alien. If the respondent fails to provide his or her 
address as required under Sec. 3.15(d), no written notice shall be 
required for an Immigration Judge to proceed with an in absentia 
hearing. This paragraph shall not apply in the event that the 
Immigration Judge waives the appearance of an alien under Sec. 3.25.

[59 FR 1899, Jan. 13, 1994, as amended at 62 FR 10334, Mar. 6, 1997; 62 
FR 15362, Apr. 1, 1997]