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[Congressional Bills 106th Congress]
[From the U.S. Government Publishing Office]
[S. 3139 Introduced in Senate (IS)]

106th CONGRESS
  2d Session
                                S. 3139

    To ensure that no alien is removed, denied a benefit under the 
  Immigration and Nationality Act, or otherwise deprived of liberty, 
         based on evidence that is kept secret from the alien.

_______________________________________________________________________

                   IN THE SENATE OF THE UNITED STATES

           September 28 (legislative day, September 22), 2000

Mr. Abraham (for himself, Mr. Feingold, and Mr. Kennedy) introduced the 
 following bill; which was read twice and referred to the Committee on 
                             the Judiciary

_______________________________________________________________________

                                 A BILL

 
    To ensure that no alien is removed, denied a benefit under the 
  Immigration and Nationality Act, or otherwise deprived of liberty, 
         based on evidence that is kept secret from the alien.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Secret Evidence Repeal Act of 
2000''.

SEC. 2. APPLICATION OF PROCEDURES USED UNDER CLASSIFIED INFORMATION 
              PROCEDURES ACT (CIPA) TO IMMIGRATION PROCEEDINGS.

    (a) Application of Procedures Used under Classified Information 
Procedures Act (CIPA) to Immigration Proceedings.--
            (1) In general.--Chapter 9 of title II of such Act is 
        amended by adding at the end the following new section:

     ``application of procedures used under classified information 
               procedures act to immigration proceedings

    ``Sec. 295. (a) Notice of Intended Use of Classified Information.--
            ``(1) In general.--In any immigration proceeding in which 
        the Attorney General seeks to use classified information, the 
        Attorney General shall inform the alien and the presiding 
        officer in advance. To the maximum extent practicable, if the 
        Attorney General is initiating such proceeding, the Attorney 
        General shall provide such notice within 15 days after 
        initiating the proceeding.
            ``(2) Limitation.--The Attorney General may seek to use 
        classified information only in an immigration proceeding in 
        which the alien is alleged to be deportable under section 
        237(a)(4)(B) or to oppose an application for admission or an 
        application for discretionary relief from removal and only 
        after issuing the following certification:
                    ``(A) Substantially the same information could not 
                reasonably be developed from open sources.
                    ``(B) The Attorney General has informed the 
                classifying agency of its intent to use the classified 
                information in connection with immigration proceedings 
                and has requested such agency to declassify such 
                information as is permitted to be declassified under 
                the President's Executive Order on classification.
    ``(b) Referral of Classified Matters to District Court.--
            ``(1) In general.--In the case of an immigration proceeding 
        in which the Attorney General or the alien moves for a referral 
        under this section to consider matters relating to classified 
        information that may arise in connection with the proceeding, 
        the presiding officer shall forward the petition for review to 
        a Federal district court for the district in which the alien 
        resides or the place where the immigration proceedings are 
        pending, of the use of such information in such proceeding 
        under subsection (c). Any evidence which is the subject of a 
        petition shall not be considered in the immigration proceeding 
        and shall not be examined by the presiding officer, except as 
        provided in paragraph (3).
            ``(2) Suspension of immigration proceeding.--In the case of 
        an order or review provided for under paragraph (1), the 
        immigration proceeding may be suspended by the presiding 
        officer pending the disposition of such matter by the district 
        court involved (and any appeals related to such matter).
            ``(3) Submission of summary.--In the case of a referral 
        under paragraph (1)(A), after the application of subsection 
(c), the district court shall issue an order to the presiding officer 
at the proceeding indicating any unclassified summary of classified 
information, and admissions in lieu of disclosure of classified 
information, that may be used and the conditions of its use at the 
proceeding. The presiding officer shall determine whether any 
information approved by the order may be offered at the immigration 
proceeding.
    ``(c) Application of CIPA.--
            ``(1) In general.--Subject to the succeeding provisions of 
        this section, in the cases described in subsection (b)(1) 
        involving review by a Federal district court of the use of 
        classified information in an immigration proceeding, the 
        provisions of the Classified Information Procedures Act (18 
        U.S.C. Appendix III) (in this section referred to as `CIPA') 
        shall apply to an alien who is a subject of the immigration 
        proceeding in the same manner as it applies to a defendant in a 
        criminal proceeding subject to such Act.
            ``(2) General rules of application.--In applying such Act 
        under subsection (a), the following general rules apply:
                    ``(A) Any reference in such Act to--
                            ``(i) a criminal defendant or a trial (or 
                        pre-trial) proceeding is deemed to be a 
                        reference to the alien who is the subject of 
                        the immigration proceeding and to the 
                        immigration proceeding;
                            ``(ii) an indictment or information at 
                        issue is deemed to be a reference to a notice 
                        to appear;
                            ``(iii) a dismissal of an indictment or 
                        information is deemed a reference to 
                        termination of the immigration proceeding 
                        against an alien; and
                            ``(iv) a trial court is deemed a reference 
                        (in the case of an administrative immigration 
                        proceeding) to the presiding officer in such 
                        proceeding.
                    ``(B) The provisions of section 2 of such Act 
                (other than the last sentence) shall not be applied.
                    ``(C) The Attorney General shall prescribe rules 
                establishing procedures for the protection against 
                unauthorized disclosure of classified information in 
                the custody of the Federal non-judicial officials in 
                immigration proceedings. Such rules shall apply instead 
                of the rules described in section 9 of CIPA.
                    ``(D) Section 12 of CIPA shall not be applied to 
                immigration proceedings.
                    ``(E) In lieu of the reports described in section 
                13 of CIPA, the Attorney General shall report annually 
                and in writing to the chairmen and ranking minority 
                members of the Committees on the Judiciary of the 
                Senate and the House of Representatives on the 
                implementation of this section. Such reports shall 
                include the following information about each case 
                brought under this section:
                            ``(i) The alien's country of citizenship 
                        or, if the alien was stateless, the country in 
                        which the alien last habitually resided outside 
                        of the United States.
                            ``(ii) The alien's immigration status.
                            ``(iii) The immigration benefit for which 
                        the alien applied (if any).
                            ``(iv) Whether the Federal district court 
                        approved the summary of classified information 
                        and the deletions or admissions proffered by 
                        the Attorney General.
                            ``(v) Whether the alien was ultimately 
                        ordered removed under section 237(a)(4)(B) or 
                        was granted or denied admission or the benefit 
                        for which the alien applied.
    ``(d) Disclosure of Exculpatory Evidence.--In any immigration 
proceeding under this section, the Attorney General shall disclose to 
the alien information that it would be required to disclose to a 
defendant in an analogous criminal proceeding under CIPA.
    ``(e) Construction Concerning Declassification of Information.--
Nothing in this section shall be construed as preventing an alien in an 
immigration proceeding from seeking access to classified information 
under section 552 of title 5, United States Code, or, in the case of 
information which is not disclosed based on section 552(b)(1) of such 
title, from initiating an action to seek to declassify some or all of 
the information involved.
    ``(f) Definitions.--For purposes of this section:
            ``(1) Immigration proceeding.--The term `immigration 
        proceeding' means any administrative proceeding under this Act.
            ``(2) Presiding officer.--The term `presiding officer' 
        means, with respect to an immigration proceeding, the 
administrative or judicial official who is presiding over the 
immigration proceeding.''.
    (b) Conforming Amendment.--Title V of the Immigration and 
Nationality Act (8 U.S.C. 1531-1537) is repealed.
    (c) Clerical Amendments.--The table of contents for such Act is 
amended--
            (1) by inserting after the item relating to section 294 the 
        following new item:

``Sec. 295. Application of procedures used under classified information 
                            procedures act to immigration 
                            proceedings.''; and
            (2) by striking the title heading, and the items, relating 
        to title V.

SEC. 3. REPEAL OF USE OF SECRET EVIDENCE IN OTHER IMMIGRATION 
              PROCEEDINGS.

    (a) Alien's Rights in Proceedings.--Section 240(b)(4)(B) of the 
Immigration and Nationality Act (8 U.S.C. 1229a(b)(4)(B)) is amended to 
read as follows:
                    ``(B) the alien shall have a reasonable opportunity 
                to examine all of the evidence against the alien, to 
                present evidence on the alien's own behalf, and to 
                cross-examine all witnesses presented by the 
                Government, and''.
    (b) Burden on Alien.--Section 240(c)(2) of such Act (8 U.S.C. 
1229a(c)(2)) is amended by striking the last sentence and inserting the 
following:
        ``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 
        pertaining the alien's admission or presence in the United 
        States.''.

SEC. 4. REPEAL OF USE OF SECRET EVIDENCE IN BOND PROCEEDINGS.

    Section 236 of the Immigration and Nationality Act (8 U.S.C. 1226) 
is amended by adding at the end the following:
    ``(f) Aliens' Rights in Bond Proceedings.--In proceedings under 
this section--
            ``(1) 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;
            ``(2) the alien shall have a reasonable opportunity to 
        examine all of the evidence against the alien, to present 
        evidence on the alien's own behalf, and to cross-examine all 
        witnesses presented by the Government; and
            ``(3) a complete record shall be kept of all testimony and 
        evidence produced at the proceeding.''.

SEC. 5. REPEAL OF USE OF SECRET EVIDENCE AGAINST LAWFUL PERMANENT 
              RESIDENTS, ASYLUM SEEKERS, AND ALIENS PAROLED INTO THE 
              UNITED STATES.

    Section 235(c)(1) of the Immigration and Nationality Act (8 U.S.C. 
1225(c)(1)) is amended by striking ``If'' and inserting: ``Except in 
the case of an alien who (i) is a lawful permanent resident; (ii) was 
granted advance parole; (iii) was paroled into the United States under 
section 212(d)(5); or (iv) is seeking asylum, if''.

SEC. 6. TRANSITION.

    (a) Application to Detainees.--Not more than 30 days after the 
effective date of this Act, the Attorney General shall, with respect to 
any alien then detained or whose liberty is otherwise restricted by the 
Attorney General, on the basis in whole or in part of information 
submitted by the Government ex parte and in camera to an immigration 
judge, to the Board of Immigration Appeals or to any court--
            (1) provide such alien a copy or transcript of such 
        information, and provide the alien with a redetermination of 
        bond (or a reconsideration of the terms of custody, as the case 
        may be) based on evidence disclosed to the alien and the 
        alien's response to such evidence; or
            (2) withdraw from the record of any proceedings involving 
        such alien any and all evidence, testimony, or other 
        information submitted by the Government ex parte and in camera 
        to the immigration judge, the Board of Immigration Appeals, or 
        to any court, as the case may be, and--
                    (A) release such alien if such alien is detained; 
                and
                    (B) cease all restrictions on the liberty of such 
                alien if such restrictions exist,
        unless detention is warranted solely on the basis of evidence 
        disclosed to the alien; or
            (3) release such alien.
    (b) Application to Aliens Seeking Immigration Benefits.--Not more 
than 30 days after the effective date of this Act, the Attorney General 
shall, with respect to any alien physically present in the United 
States whose application for an immigration benefit is or was opposed 
by the Government on the basis in whole or in part of information 
submitted by the Government ex parte and in camera to an immigration 
judge, to the Board of Immigration Appeals, or to any court--
            (1) provide such alien a copy or transcript of such 
        information and a reasonable opportunity to respond to such 
        information, and grant or deny the application or reopen the 
proceedings and afford the alien de novo reconsideration of the 
application, as the case may be, based solely on evidence in the public 
record; or
            (2) withdraw from the record of any proceedings involving 
        such alien any and all evidence, testimony, or other 
        information submitted by the Government ex parte and in camera 
        to the immigration judge, the Board of Immigration Appeals, or 
        to any court, as the case may be, and grant or deny the 
        application or reopen the proceedings and afford the alien de 
        novo reconsideration of the application, as the case may be, 
        based solely on evidence in the public record; or
            (3) grant the application.
    (c) Termination of Proceedings.--In the case of an alien in 
immigration proceedings as of the effective date of this Act conducted 
under title V of the Immigration and Nationality Act--
            (1) such proceedings are terminated as of the effective 
        date of this Act without prejudice to the Attorney General or 
        the alien; and
            (2) the Attorney General may, in his or her discretion, 
        commence de novo removal proceedings within 10 days thereafter 
        under section 240 of the Immigration and Nationality Act (8 
        U.S.C. 1229a).

SEC. 7. REGULATIONS.

    The Attorney General shall promulgate regulations, including 
regulations governing applications for asylum, withholding of 
deportation or removal, adjustment of status, naturalization, temporary 
protected status, and relief from deportation, exclusion, or removal to 
implement this Act not more than 90 days after the effective date of 
this Act.

SEC. 8. EFFECTIVE DATE.

    The amendments made by this Act shall take effect on the date of 
the enactment of this Act and shall apply to all aliens without regard 
to the date of arrival, admission, entry, or parole into the United 
States.
                                 <all>
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