II

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.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Secret Evidence Repeal

5 Act of 2000’’.
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1 SEC. 2. APPLICATION OF PROCEDURES USED UNDER CLAS2 SIFIED INFORMATION PROCEDURES ACT

3 (CIPA) TO IMMIGRATION PROCEEDINGS.

4 (a) APPLICATION OF PROCEDURES USED UNDER

5 CLASSIFIED INFORMATION PROCEDURES ACT (CIPA) TO

6 IMMIGRATION PROCEEDINGS.—

7 (1) IN GENERAL.—Chapter 9 of title II of such

8 Act is amended by adding at the end the following

9 new section:

10 ‘‘APPLICATION OF PROCEDURES USED UNDER CLASSI11 FIED INFORMATION PROCEDURES ACT TO IMMIGRA12 TION PROCEEDINGS

13 ‘‘SEC. 295. (a) NOTICE OF INTENDED USE OF CLAS14 SIFIED INFORMATION.—

15 ‘‘(1) IN GENERAL.—In any immigration pro16 ceeding in which the Attorney General seeks to use

17 classified information, the Attorney General shall in18 form the alien and the presiding officer in advance.

19 To the maximum extent practicable, if the Attorney

20 General is initiating such proceeding, the Attorney

21 General shall provide such notice within 15 days

22 after initiating the proceeding.

23 ‘‘(2) LIMITATION.—The Attorney General may

24 seek to use classified information only in an immi25 gration proceeding in which the alien is alleged to be

26 deportable under section 237(a)(4)(B) or to oppose
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1 an application for admission or an application for

2 discretionary relief from removal and only after

3 issuing the following certification:

4 ‘‘(A) Substantially the same information

5 could not reasonably be developed from open

6 sources.

7 ‘‘(B) The Attorney General has informed

8 the classifying agency of its intent to use the

9 classified information in connection with immi10 gration proceedings and has requested such

11 agency to declassify such information as is per12 mitted to be declassified under the President’s

13 Executive Order on classification.

14 ‘‘(b) REFERRAL OF CLASSIFIED MATTERS TO DIS15 TRICT COURT.—

16 ‘‘(1) IN GENERAL.—In the case of an immigra17 tion proceeding in which the Attorney General or the

18 alien moves for a referral under this section to con19 sider matters relating to classified information that

20 may arise in connection with the proceeding, the

21 presiding officer shall forward the petition for review

22 to a Federal district court for the district in which

23 the alien resides or the place where the immigration

24 proceedings are pending, of the use of such informa25 tion in such proceeding under subsection (c). Any
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1 evidence which is the subject of a petition shall not

2 be considered in the immigration proceeding and

3 shall not be examined by the presiding officer, ex4 cept as provided in paragraph (3).

5 ‘‘(2) SUSPENSION OF IMMIGRATION PRO6 CEEDING.—In the case of an order or review pro7 vided for under paragraph (1), the immigration pro8 ceeding may be suspended by the presiding officer

9 pending the disposition of such matter by the dis10 trict court involved (and any appeals related to such

11 matter).

12 ‘‘(3) SUBMISSION OF SUMMARY.—In the case of

13 a referral under paragraph (1)(A), after the applica14 tion of subsection (c), the district court shall issue

15 an order to the presiding officer at the proceeding

16 indicating any unclassified summary of classified in17 formation, and admissions in lieu of disclosure of

18 classified information, that may be used and the

19 conditions of its use at the proceeding. The pre20 siding officer shall determine whether any informa21 tion approved by the order may be offered at the

22 immigration proceeding.

23 ‘‘(c) APPLICATION OF CIPA.—

24 ‘‘(1) IN GENERAL.—Subject to the succeeding

25 provisions of this section, in the cases described in
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1 subsection (b)(1) involving review by a Federal dis2 trict court of the use of classified information in an

3 immigration proceeding, the provisions of the Classi4 fied Information Procedures Act (18 U.S.C. Appen5 dix III) (in this section referred to as ‘CIPA’) shall

6 apply to an alien who is a subject of the immigration

7 proceeding in the same manner as it applies to a de8 fendant in a criminal proceeding subject to such Act.

9 ‘‘(2) GENERAL RULES OF APPLICATION.—In

10 applying such Act under subsection (a), the fol11 lowing general rules apply:

12 ‘‘(A) Any reference in such Act to—

13 ‘‘(i) a criminal defendant or a trial (or

14 pre-trial) proceeding is deemed to be a ref15 erence to the alien who is the subject of

16 the immigration proceeding and to the im17 migration proceeding;

18 ‘‘(ii) an indictment or information at

19 issue is deemed to be a reference to a no20 tice to appear;

21 ‘‘(iii) a dismissal of an indictment or

22 information is deemed a reference to termi23 nation of the immigration proceeding

24 against an alien; and
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1 ‘‘(iv) a trial court is deemed a ref2 erence (in the case of an administrative

3 immigration proceeding) to the presiding

4 officer in such proceeding.

5 ‘‘(B) The provisions of section 2 of such

6 Act (other than the last sentence) shall not be

7 applied.

8 ‘‘(C) The Attorney General shall prescribe

9 rules establishing procedures for the protection

10 against unauthorized disclosure of classified in11 formation in the custody of the Federal non-ju12 dicial officials in immigration proceedings. Such

13 rules shall apply instead of the rules described

14 in section 9 of CIPA.

15 ‘‘(D) Section 12 of CIPA shall not be ap16 plied to immigration proceedings.

17 ‘‘(E) In lieu of the reports described in

18 section 13 of CIPA, the Attorney General shall

19 report annually and in writing to the chairmen

20 and ranking minority members of the Commit21 tees on the Judiciary of the Senate and the

22 House of Representatives on the implementa23 tion of this section. Such reports shall include

24 the following information about each case

25 brought under this section:
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1 ‘‘(i) The alien’s country of citizenship

2 or, if the alien was stateless, the country in

3 which the alien last habitually resided out4 side of the United States.

5 ‘‘(ii) The alien’s immigration status.

6 ‘‘(iii) The immigration benefit for

7 which the alien applied (if any).

8 ‘‘(iv) Whether the Federal district

9 court approved the summary of classified

10 information and the deletions or admis11 sions proffered by the Attorney General.

12 ‘‘(v) Whether the alien was ultimately

13 ordered removed under section

14 237(a)(4)(B) or was granted or denied ad15 mission or the benefit for which the alien

16 applied.

17 ‘‘(d) DISCLOSURE OF EXCULPATORY EVIDENCE.—In

18 any immigration proceeding under this section, the Attor19 ney General shall disclose to the alien information that

20 it would be required to disclose to a defendant in an analo21 gous criminal proceeding under CIPA.

22 ‘‘(e) CONSTRUCTION CONCERNING DECLASSIFICA23 TION OF INFORMATION.—Nothing in this section shall be

24 construed as preventing an alien in an immigration pro25 ceeding from seeking access to classified information
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1 under section 552 of title 5, United States Code, or, in

2 the case of information which is not disclosed based on

3 section 552(b)(1) of such title, from initiating an action

4 to seek to declassify some or all of the information in5 volved.

6 ‘‘(f) DEFINITIONS.—For purposes of this section:

7 ‘‘(1) IMMIGRATION PROCEEDING.—The term

8 ‘immigration proceeding’ means any administrative

9 proceeding under this Act.

10 ‘‘(2) PRESIDING OFFICER.—The term ‘pre11 siding officer’ means, with respect to an immigration

12 proceeding, the administrative or judicial official who

13 is presiding over the immigration proceeding.’’.

14 (b) CONFORMING AMENDMENT.—Title V of the Im15 migration and Nationality Act (8 U.S.C. 1531–1537) is

16 repealed.

17 (c) CLERICAL AMENDMENTS.—The table of contents

18 for such Act is amended—

19 (1) by inserting after the item relating to sec20 tion 294 the following new item:

‘‘Sec. 295. Application of procedures used under classified information procedures act to immigration proceedings.’’; and

21 (2) by striking the title heading, and the items,

22 relating to title V.
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1 SEC. 3. REPEAL OF USE OF SECRET EVIDENCE IN OTHER

2 IMMIGRATION PROCEEDINGS.

3 (a) ALIEN’S RIGHTS IN PROCEEDINGS.—Section

4 240(b)(4)(B) of the Immigration and Nationality Act (8

5 U.S.C. 1229a(b)(4)(B)) is amended to read as follows:

6 ‘‘(B) the alien shall have a reasonable op7 portunity to examine all of the evidence against

8 the alien, to present evidence on the alien’s own

9 behalf, and to cross-examine all witnesses pre10 sented by the Government, and’’.

11 (b) BURDEN ON ALIEN.—Section 240(c)(2) of such

12 Act (8 U.S.C. 1229a(c)(2)) is amended by striking the last

13 sentence and inserting the following:

14 ‘‘In meeting the burden of proof under subpara15 graph (B), the alien shall have access to the alien’s

16 visa or other entry document, if any, and any other

17 records and documents pertaining the alien’s admis18 sion or presence in the United States.’’.

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

20 PROCEEDINGS.

21 Section 236 of the Immigration and Nationality Act

22 (8 U.S.C. 1226) is amended by adding at the end the fol23 lowing:

24 ‘‘(f) ALIENS’ RIGHTS IN BOND PROCEEDINGS.—In

25 proceedings under this section—
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1 ‘‘(1) the alien shall have the privilege of being

2 represented, at no expense to the Government, by

3 counsel of the alien’s choosing who is authorized to

4 practice in such proceedings;

5 ‘‘(2) the alien shall have a reasonable oppor6 tunity to examine all of the evidence against the

7 alien, to present evidence on the alien’s own behalf,

8 and to cross-examine all witnesses presented by the

9 Government; and

10 ‘‘(3) a complete record shall be kept of all testi11 mony and evidence produced at the proceeding.’’.

12 SEC. 5. REPEAL OF USE OF SECRET EVIDENCE AGAINST

13 LAWFUL PERMANENT RESIDENTS, ASYLUM

14 SEEKERS, AND ALIENS PAROLED INTO THE

15 UNITED STATES.

16 Section 235(c)(1) of the Immigration and Nationality

17 Act (8 U.S.C. 1225(c)(1)) is amended by striking ‘‘If’’ and

18 inserting: ‘‘Except in the case of an alien who (i) is a law19 ful permanent resident; (ii) was granted advance parole;

20 (iii) was paroled into the United States under section

21 212(d)(5); or (iv) is seeking asylum, if’’.

22 SEC. 6. TRANSITION.

23 (a) APPLICATION TO DETAINEES.—Not more than

24 30 days after the effective date of this Act, the Attorney

25 General shall, with respect to any alien then detained or
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1 whose liberty is otherwise restricted by the Attorney Gen2 eral, on the basis in whole or in part of information sub3 mitted by the Government ex parte and in camera to an

4 immigration judge, to the Board of Immigration Appeals

5 or to any court—

6 (1) provide such alien a copy or transcript of

7 such information, and provide the alien with a rede8 termination of bond (or a reconsideration of the

9 terms of custody, as the case may be) based on evi10 dence disclosed to the alien and the alien’s response

11 to such evidence; or

12 (2) withdraw from the record of any pro13 ceedings involving such alien any and all evidence,

14 testimony, or other information submitted by the

15 Government ex parte and in camera to the immigra16 tion judge, the Board of Immigration Appeals, or to

17 any court, as the case may be, and—

18 (A) release such alien if such alien is de19 tained; and

20 (B) cease all restrictions on the liberty of

21 such alien if such restrictions exist,

22 unless detention is warranted solely on the basis of

23 evidence disclosed to the alien; or

24 (3) release such alien.
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1 (b) APPLICATION TO ALIENS SEEKING IMMIGRATION

2 BENEFITS.—Not more than 30 days after the effective

3 date of this Act, the Attorney General shall, with respect

4 to any alien physically present in the United States whose

5 application for an immigration benefit is or was opposed

6 by the Government on the basis in whole or in part of

7 information submitted by the Government ex parte and

8 in camera to an immigration judge, to the Board of Immi9 gration Appeals, or to any court—

10 (1) provide such alien a copy or transcript of

11 such information and a reasonable opportunity to re12 spond to such information, and grant or deny the

13 application or reopen the proceedings and afford the

14 alien de novo reconsideration of the application, as

15 the case may be, based solely on evidence in the pub16 lic record; or

17 (2) withdraw from the record of any pro18 ceedings involving such alien any and all evidence,

19 testimony, or other information submitted by the

20 Government ex parte and in camera to the immigra21 tion judge, the Board of Immigration Appeals, or to

22 any court, as the case may be, and grant or deny

23 the application or reopen the proceedings and afford

24 the alien de novo reconsideration of the application,
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1 as the case may be, based solely on evidence in the

2 public record; or

3 (3) grant the application.

4 (c) TERMINATION OF PROCEEDINGS.—In the case of

5 an alien in immigration proceedings as of the effective

6 date of this Act conducted under title V of the Immigra7 tion and Nationality Act—

8 (1) such proceedings are terminated as of the

9 effective date of this Act without prejudice to the

10 Attorney General or the alien; and

11 (2) the Attorney General may, in his or her dis12 cretion, commence de novo removal proceedings

13 within 10 days thereafter under section 240 of the

14 Immigration and Nationality Act (8 U.S.C. 1229a).

15 SEC. 7. REGULATIONS.

16 The Attorney General shall promulgate regulations,

17 including regulations governing applications for asylum,

18 withholding of deportation or removal, adjustment of sta19 tus, naturalization, temporary protected status, and relief

20 from deportation, exclusion, or removal to implement this

21 Act not more than 90 days after the effective date of this

22 Act.

23 SEC. 8. EFFECTIVE DATE.

24 The amendments made by this Act shall take effect

25 on the date of the enactment of this Act and shall apply
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1 to all aliens without regard to the date of arrival, admis2 sion, entry, or parole into the United States.

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