I

106TH CONGRESS

1ST SESSION H. R. 2121

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 HOUSE OF REPRESENTATIVES

JUNE 10, 1999

Mr. BONIOR (for himself and Mr. CAMPBELL, Mr. BARR of Georgia, and Mr.

CONYERS) introduced the following bill; which was 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 1999’’.

6 SEC. 2. FINDINGS.

7 The Congress makes the following findings:
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1 (1) No person physically present in the United

2 States, including its outlying possessions, should be

3 deprived of liberty based on evidence kept secret

4 from that person, including information classified for

5 national security reasons.

6 (2) Removal from the United States can sepa7 rate a person from the person’s family, may expose

8 the person to persecution and torture, and amounts

9 to a severe deprivation of liberty.

10 (3) Use of secret evidence in immigration pro11 ceedings deprives the alien of due process rights

12 guaranteed under the United States Constitution

13 and undermines our adversarial system, which relies

14 on cross-examination as an engine of truth-seeking.

15 SEC. 3. REPEAL OF SECRET EVIDENCE COURT PROCE16 DURES.

17 (a) REPEAL.—Title V of the Immigration and Na18 tionality Act (8 U.S.C. 1531–1537) is repealed.

19 (b) CLERICAL AMENDMENT.—The table of contents

20 for such Act is amended by striking the title heading, and

21 the items, relating to title V.
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1 SEC. 4. 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. 5. REPEAL OF USE OF SECRET EVIDENCE TO DENY AF20 FIRMATIVE APPLICATIONS FOR IMMIGRA21 TION BENEFITS.

22 (a) IN GENERAL.—Title I of the Immigration and

23 Nationality Act is amended by adding at the end the fol24 lowing:
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1 ‘‘SEC. 106. REPEAL OF USE OF SECRET EVIDENCE TO DENY

2 AFFIRMATIVE APPLICATIONS FOR IMMIGRA3 TION BENEFITS.

4 ‘‘No decision on any immigration benefit (including

5 the granting of asylum, the withholding of deportation or

6 removal, adjustment of status, naturalization, or the

7 granting of temporary protected status) shall be made on

8 the basis of any evidence not shared with the applicant.’’.

9 (b) CLERICAL AMENDMENT.—The table of sections

10 for such Act is amended by adding at the end of the items

11 relating to title I the following new item:

‘‘Sec. 106. Repeal of use of secret evidence to deny affirmative applications for

immigration benefits.’’.

12 SEC. 6. REPEAL OF USE OF SECRET EVIDENCE IN BOND

13 PROCEEDINGS AND JUDICIAL REVIEW OF

14 BOND DETERMINATIONS.

15 (a) JUDICIAL REVIEW.—Section 236(e) of the Immi16 gration and Nationality Act (8 U.S.C. 1226(e)) is amend17 ed to read as follows:

18 ‘‘(e) JUDICIAL REVIEW.—Notwithstanding any other

19 provision of law, any alien against whom an order con20 cerning detention, release on bond or parole pending or

21 subsequent to an order of deportability, excludability, or

22 removability shall be entitled to judicial review thereof in

23 habeas corpus proceedings to determine whether the At24 torney General is acting in violation of the laws or Con-
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1 stitution of the United States, or is not proceeding with

2 such reasonable dispatch as may be warranted by the par3 ticular facts and circumstances of the case.’’.

4 (b) ALIENS’ RIGHTS IN BOND PROCEEDINGS.—Sec5 tion 236 of the Immigration and Nationality Act (8 U.S.C.

6 1226) is amended by adding at the end the following:

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

8 proceedings under this section—

9 ‘‘(1) the alien shall have the privilege of being

10 represented, at no expense to the Government, by

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

12 practice in such proceedings;

13 ‘‘(2) the alien shall have a reasonable oppor14 tunity to examine all of the evidence against the

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

16 and to cross-examine all witnesses presented by the

17 Government; and

18 ‘‘(3) a complete record shall be kept of all testi19 mony and evidence produced at the proceeding.’’.

20 SEC. 7. REPEAL OF USE OF SECRET EVIDENCE AGAINST

21 LAWFUL PERMANENT RESIDENTS, ASYLUM

22 SEEKERS, AND ALIENS PAROLED INTO THE

23 UNITED STATES.

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

25 Act (8 U.S.C. 1225(c)(1)) is amended by striking ‘‘If’’ and
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1 inserting: ‘‘Except in the case of an alien who (i) is a law2 ful permanent resident; (ii) was granted advance parole;

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

4 212(d)(5); or (iv) is seeking asylum, if’’.

5 SEC. 8. TRANSITION.

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

7 30 days after the effective date of this Act, the Attorney

8 General shall, with respect to any alien then detained or

9 whose liberty is otherwise restricted by the Attorney Gen10 eral, on the basis in whole or in part of information sub11 mitted by the Government ex parte and in camera to an

12 immigration judge, to the Board of Immigration Appeals

13 or to any court—

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

15 such information, and provide the alien with a rede16 termination of bond (or a reconsideration of the

17 terms of custody, as the case may be) based on evi18 dence disclosed to the alien and the alien’s response

19 to such evidence; or

20 (2) withdraw from the record of any pro21 ceedings involving such alien any and all evidence,

22 testimony, or other information submitted by the

23 Government ex parte and in camera to the immigra24 tion judge, the Board of Immigration Appeals, or to

25 any court, as the case may be, and—
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1 (A) release such alien if such alien is de2 tained; and

3 (B) cease all restrictions on the liberty of

4 such alien if such restrictions exist,

5 unless detention is warranted solely on the basis of

6 evidence disclosed to the alien; or

7 (3) release such alien.

8 (b) APPLICATION TO ALIENS SEEKING IMMIGRATION

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

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

11 to any alien physically present in the United States whose

12 application for an immigration benefit is or was opposed

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

14 information submitted by the Government ex parte and

15 in camera to an immigration judge, to the Board of Immi16 gration Appeals, or to any court—

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

18 such information and a reasonable opportunity to re19 spond to such information, and grant or deny the

20 application or reopen the proceedings and afford the

21 alien de novo reconsideration of the application, as

22 the case may be, based solely on evidence in the pub23 lic record; or

24 (2) withdraw from the record of any pro25 ceedings involving such alien any and all evidence,
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1 testimony, or other information submitted by the

2 Government ex parte and in camera to the immigra3 tion judge, the Board of Immigration Appeals, or to

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

5 the application or reopen the proceedings and afford

6 the alien de novo reconsideration of the application,

7 as the case may be, based solely on evidence in the

8 public record; or

9 (3) grant the application.

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

11 an alien in immigration proceedings as of the effective

12 date of this Act conducted under title V of the Immigra13 tion and Nationality Act—

14 (1) such proceedings are terminated as of the

15 effective date of this Act without prejudice to the

16 Attorney General or the alien; and

17 (2) the Attorney General may, in his or her dis18 cretion, commence de novo removal proceedings

19 within 10 days thereafter under section 240 of the

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

21 SEC. 9. REGULATIONS.

22 The Attorney General shall promulgate regulations,

23 including regulations governing applications for asylum,

24 withholding of deportation or removal, adjustment of sta25 tus, naturalization, temporary protected status, and relief
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1 from deportation, exclusion, or removal to implement this

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

3 Act.

4 SEC. 10. EFFECTIVE DATE.

5 The amendments made by this Act shall take effect

6 on the date of the enactment of this Act and shall apply

7 to all aliens without regard to the date of arrival, admis8 sion, entry, or parole into the United States.

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