IB

Union Calendar No. 579

106TH CONGRESS

2D SESSION H. R. 2121

[Report No. 106–981]

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

OCTOBER 17, 2000

Additional sponsors: Mr. RAHALL, Mr. LAHOOD, Ms. RIVERS, Mr.

RODRIGUEZ, Mr. KILDEE, Mr. HOLT, Mr. SAWYER, Ms. MCKINNEY, Mr.

HASTINGS of Florida, Ms. STABENOW, Ms. KILPATRICK, Mr. KENNEDY

of Rhode Island, Mr. SUNUNU, Mr. KING, Mr. DINGELL, Mr. GUTIERREZ, Mr. KUCINICH, Mr. MEEKS of New York, Ms. SCHAKOWSKY, Mr.

SCOTT, Ms. JACKSON-LEE of Texas, Mr. KNOLLENBERG, Mrs. MINK of

Hawaii, Mr. MORAN of Virginia, Mr. BARCIA, Mr. FILNER, Mr. BECERRA, Mr. JACKSON of Illinois, Mr. COOK, Ms. NORTON, Mr. PASTOR, Mr.

CLAY, Mr. BARRETT of Wisconsin, Mr. MCDERMOTT, Mr. HINCHEY, Ms.

EDDIE BERNICE JOHNSON of Texas, Mr. SHAYS, Ms. PELOSI, Mr. PRICE

of North Carolina, Mr. LIPINSKI, Ms. KAPTUR, Mr. LAMPSON, Mr. WATT

of North Carolina, Mr. GEORGE MILLER of California, Mr. CAPUANO,

Ms. WATERS, Mr. UDALL of Colorado, Mr. LUTHER, Mr. LEVIN, Mr.

FARR of California, Mr. FRANK of Massachusetts, Mr. PETRI, Ms. BALDWIN, Mr. LEWIS of Georgia, Mr. DAVIS of Virginia, Mr. MEEHAN, Mr.

DELAHUNT, Mr. PASCRELL, Mr. MARTINEZ, Ms. LOFGREN, Mr. DOYLE,

Mr. TOWNS, Mrs. JONES of Ohio, Mrs. BONO, Mr. FORD, Mr. KLINK,

Mr. CANNON, Mr. OWENS, Mr. WU, Ms. SANCHEZ, Mr. SCARBOROUGH,

Mr. ENGLISH, Mr. RANGEL, Mr. BACA, Mr. COOKSEY, Mr. SANFORD,

Mr. BROWN of Ohio, Mr. MOAKLEY, Mr. CUMMINGS, Mr. SMITH of

Washington, Mr. BLUMENAUER, Mr. PALLONE, Ms. CARSON, Mr.

MOORE, Mr. DOOLEY of California, Mr. ACKERMAN, Mr. DOOLITTLE,
2

•HR 2121 RH

Mr. TIAHRT, Mr. DEFAZIO, Mr. MCGOVERN, Mr. BOUCHER, Mr. RUSH,

Mr. BLAGOJEVICH, Ms. WOOLSEY, Ms. LEE, Mr. PAUL, Mr. NEY, Mr.

BALDACCI, Ms. VELA ́

ZQUEZ, Ms. MCCARTHY of Missouri, Mr. HORN, Mr.

WHITFIELD, Mr. TOOMEY, Mr. ABERCROMBIE, Mr. SANDLIN, Mr. TURNER, Mr. SMITH of Michigan, Mr. DAVIS of Illinois, Ms. DANNER, Mr.

UDALL of New Mexico, Mrs. NAPOLITANO, Mr. ALLEN, Mrs. CLAYTON,

Mr. GONZALEZ, Mr. CLEMENT, Mr. HALL of Texas, Mr. STARK, Mr.

NEAL of Massachusetts, Mr. MATSUI, Mr. BRADY of Pennsylvania, Mr.

SERRANO, Mr. TIERNEY, Mr. HILLIARD, Mr. JEFFERSON, and Ms.

ESHOO

OCTOBER 17, 2000

Reported with an amendment, committed to the Committee of the Whole

House on the State of the Union, and ordered to be printed

[Strike out all after the enacting clause and insert the part printed in italic]

[For text of introduced bill, see copy of bill as introduced on June 10, 1999]

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’’.

6 SEC. 2. FINDINGS.

7 The Congress makes the following findings:

8 (1) No person physically present in the United

9 States, including its outlying possessions, should be

10 deprived of liberty based on evidence kept secret from
3

•HR 2121 RH

1 that person, including information classified for na2 tional security reasons.

3 (2) Removal from the United States can separate

4 a person from the person’s family, may expose the

5 person to persecution and torture, and amounts to a

6 severe deprivation of liberty.

7 (3) Use of secret evidence in immigration pro8 ceedings deprives the alien of due process rights guar9 anteed under the United States Constitution and un10 dermines our adversarial system, which relies on

11 cross-examination as an engine of truth-seeking.

12 SEC. 3. APPLICATION OF PROCEDURES USED UNDER CLAS13 SIFIED INFORMATION PROCEDURES ACT

14 (CIPA) TO IMMIGRATION PROCEEDINGS.

15 (a) APPLICATION OF PROCEDURES USED UNDER

16 CLASSIFIED INFORMATION PROCEDURES ACT (CIPA) TO

17 IMMIGRATION PROCEEDINGS.—Chapter 9 of title II of the

18 Immigration and Nationality Act (8 U.S.C. 1351 et seq.)

19 is amended by adding at the end the following new section:

20 ‘‘APPLICATION OF PROCEDURES USED UNDER CLASSIFIED

21 INFORMATION PROCEDURES ACT TO IMMIGRATION

22 PROCEEDINGS

23 ‘‘SEC. 295. (a) NOTICE OF INTENDED USE OF CLASSI24 FIED INFORMATION.—

25 ‘‘(1) IN GENERAL.—In any immigration pro26 ceeding in which the Attorney General seeks to use
4

•HR 2121 RH

1 classified information, the Attorney General shall in2 form the alien and the presiding officer in advance.

3 To the maximum extent practicable, if the Attorney

4 General is initiating such proceeding, the Attorney

5 General shall provide such notice within 15 days after

6 initiating the proceeding.

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

8 seek to use classified information only in an immi9 gration proceeding in which the alien is alleged to be

10 deportable under section 237(a)(4)(B) or to oppose an

11 application for admission or an application for dis12 cretionary relief from removal and only after issuing

13 the following certification:

14 ‘‘(A) Substantially the same information

15 could not reasonably be developed from open

16 sources.

17 ‘‘(B) The Attorney General has informed the

18 classifying agency of its intent to use the classi19 fied information in connection with immigration

20 proceedings and has requested such agency to de21 classify such information as is permitted to be

22 declassified under the President’s Executive

23 Order on classification.

24 ‘‘(b) REFERRAL OF CLASSIFIED MATTERS TO DIS25 TRICT COURT.—
5

•HR 2121 RH

1 ‘‘(1) IN GENERAL.—In the case of an immigra2 tion proceeding in which the Attorney General or the

3 alien moves for a referral under this section to con4 sider matters relating to classified information that

5 may arise in connection with the proceeding, the pre6 siding officer shall forward the petition for review to

7 a Federal district court for the district in which the

8 alien resides or the place where the immigration pro9 ceedings are pending, of the use of such information

10 in such proceeding under subsection (c). Any evidence

11 which is the subject of a petition shall not be consid12 ered in the immigration proceeding and shall not be

13 examined by the presiding officer, except as provided

14 in paragraph (3).

15 ‘‘(2) SUSPENSION OF IMMIGRATION PRO16 CEEDING.—In the case of an order or review provided

17 for under paragraph (1), the immigration proceeding

18 may be suspended by the presiding officer pending the

19 disposition of such matter by the district court in20 volved (and any appeals related to such matter).

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

22 a referral under paragraph (1)(A), after the applica23 tion of subsection (c), the district court shall issue an

24 order to the presiding officer at the proceeding indi25 cating any unclassified summary of classified infor-
6

•HR 2121 RH

1 mation, and admissions in lieu of disclosure of classi2 fied information, that may be used and the conditions

3 of its use at the proceeding. The presiding officer shall

4 determine whether any information approved by the

5 order may be offered at the immigration proceeding.

6 ‘‘(c) APPLICATION OF CIPA.—

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

8 provisions of this section, in the cases described in

9 subsection (b)(1) involving review by a Federal dis10 trict court of the use of classified information in an

11 immigration proceeding, the provisions of the Classi12 fied Information Procedures Act (18 U.S.C. Appendix

13 III) (in this section referred to as ‘CIPA’) shall apply

14 to an alien who is a subject of the immigration pro15 ceeding in the same manner as it applies to a defend16 ant in a criminal proceeding subject to CIPA.

17 ‘‘(2) GENERAL RULES OF APPLICATION.—In ap18 plying subsection (a), the following general rules

19 apply:

20 ‘‘(A) Any reference in CIPA to—

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

22 pre-trial) proceeding is deemed to be a ref23 erence to the alien who is the subject of the

24 immigration proceeding and to the immi25 gration proceeding;
7

•HR 2121 RH

1 ‘‘(ii) an indictment or information at

2 issue is deemed to be a reference to a notice

3 to appear;

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

5 information is deemed a reference to termi6 nation of the immigration proceeding

7 against an alien; and

8 ‘‘(iv) a trial court is deemed a ref9 erence (in the case of an administrative im10 migration proceeding) to the presiding offi11 cer in such proceeding.

12 ‘‘(B) The provisions of section 2 of CIPA

13 (other than the last sentence) shall not be ap14 plied.

15 ‘‘(C) The Attorney General shall prescribe

16 rules establishing procedures for the protection

17 against unauthorized disclosure of classified in18 formation in the custody of the Federal non-judi19 cial officials in immigration proceedings. Such

20 rules shall apply instead of the rules described in

21 section 9 of CIPA.

22 ‘‘(D) Section 12 of CIPA shall not be ap23 plied to immigration proceedings.

24 ‘‘(E) In lieu of the reports described in sec25 tion 13 of CIPA, the Attorney General shall re-
8

•HR 2121 RH

1 port annually and in writing to the chairmen

2 and ranking minority members of the Commit3 tees on the Judiciary of the Senate and the

4 House of Representatives on the implementation

5 of this section. Such reports shall include the fol6 lowing information about each case brought

7 under this section:

8 ‘‘(i) The alien’s country of citizenship

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

10 which the alien last habitually resided out11 side of the United States.

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

13 ‘‘(iii) The immigration benefit for

14 which the alien applied (if any).

15 ‘‘(iv) Whether the Federal district court

16 approved the summary of classified infor17 mation and the deletions or admissions

18 proffered by the Attorney General.

19 ‘‘(v) Whether the alien was ultimately

20 ordered removed under section 237(a)(4)(B)

21 or was granted or denied admission or the

22 benefit for which the alien applied.

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

24 any immigration proceeding under this section, the Attor25 ney General shall disclose to the alien information that it
9

•HR 2121 RH

1 would be required to disclose to a defendant in an analogous

2 criminal proceeding under CIPA.

3 ‘‘(e) CONSTRUCTION CONCERNING DECLASSIFICATION

4 OF INFORMATION.—Nothing in this section shall be con5 strued as preventing an alien in an immigration pro6 ceeding from seeking access to classified information under

7 section 552 of title 5, United States Code, or, in the case

8 of information which is not disclosed based on section

9 552(b)(1) of such title, from initiating an action to seek

10 to declassify some or all of the information involved.

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

12 ‘‘(1) IMMIGRATION PROCEEDING.—The term ‘im13 migration proceeding’ means any administrative pro14 ceeding under this Act.

15 ‘‘(2) PRESIDING OFFICER.—The term ‘presiding

16 officer’ means, with respect to an immigration pro17 ceeding, the administrative or judicial official who is

18 presiding over the immigration proceeding.’’.

19 (b) CONFORMING AMENDMENT.—Title V of the Immi20 gration and Nationality Act (8 U.S.C. 1531–1537) is re21 pealed.

22 (c) CLERICAL AMENDMENTS.—The table of contents for

23 the Immigration and Nationality Act (8 U.S.C. 1101 et

24 seq.) is amended—
10

•HR 2121 RH

1 (1) by inserting after the item relating to section

2 294 the following new item:

‘‘Sec. 295. Application of procedures used under Classified Information Procedures

Act to immigration proceedings.’’; and

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

4 relating to title V.

5 SEC. 4. REPEAL OF USE OF SECRET EVIDENCE IN OTHER

6 IMMIGRATION PROCEEDINGS.

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

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

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

10 ‘‘(B) subject to section 295, the alien shall

11 have a reasonable opportunity to examine all of

12 the evidence against the alien, to present evi13 dence on the alien’s own behalf, and to cross-ex14 amine all witnesses presented by the Govern15 ment, and’’.

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

17 (8 U.S.C. 1229a(c)(2)) is amended by striking the last sen18 tence and inserting the following:

19 ‘‘In meeting the burden of proof under subparagraph

20 (B), subject to section 295, the alien shall have access

21 to the alien’s visa or other entry document, if any,

22 and any other records and documents pertaining the

23 alien’s admission or presence in the United States.’’.
11

•HR 2121 RH

1 SEC. 5. REPEAL OF USE OF SECRET EVIDENCE IN BOND

2 PROCEEDINGS.

3 Section 236 of the Immigration and Nationality Act

4 (8 U.S.C. 1226) is amended by adding at the end the fol5 lowing:

6 ‘‘(f) ALIENS’ RIGHTS IN BOND PROCEEDINGS.—Sub7 ject to section 295, in proceedings under this section—

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

9 represented, at no expense to the Government, by

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

11 practice in such proceedings;

12 ‘‘(2) the alien shall have a reasonable oppor13 tunity to examine all of the evidence against the

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

15 and to cross-examine all witnesses presented by the

16 Government; and

17 ‘‘(3) a complete record shall be kept of all testi18 mony and evidence produced at the proceeding.’’.

19 SEC. 6. REPEAL OF USE OF SECRET EVIDENCE AGAINST

20 LAWFUL PERMANENT RESIDENTS, ASYLUM

21 SEEKERS, AND ALIENS PAROLED INTO THE

22 UNITED STATES.

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

24 Act (8 U.S.C. 1225(c)(1)) is amended to read as follows:

25 ‘‘(1) REMOVAL WITHOUT FURTHER HEARING.—
12

•HR 2121 RH

1 ‘‘(A) IN GENERAL.—Except in the case of

2 an alien described in subparagraph (B), if an

3 immigration officer or an immigration judge

4 suspects that an arriving alien may be inadmis5 sible under subparagraph (A) (other than clause

6 (ii)), (B), or (C) of section 212(a)(3), the officer

7 or judge shall—

8 ‘‘(i) order the alien removed, subject to

9 review under paragraph (2);

10 ‘‘(ii) report the order of removal to the

11 Attorney General; and

12 ‘‘(iii) not conduct any further inquiry

13 or hearing until ordered by the Attorney

14 General.

15 ‘‘(B) EXCEPTED ALIENS DESCRIBED.—An

16 alien described in this subparagraph is an alien

17 who—

18 ‘‘(i) is a lawful permanent resident;

19 ‘‘(ii) was granted advance parole;

20 ‘‘(iii) was paroled into the United

21 States under section 212(d)(5); or

22 ‘‘(iv) is seeking asylum.’’.

23 SEC. 7. TRANSITION.

24 (a) APPLICATION TO DETAINEES.—Not more than 30

25 days after the effective date of this Act, the Attorney General
13

•HR 2121 RH

1 shall, with respect to any alien then detained or whose lib2 erty is otherwise restricted by the Attorney General, on the

3 basis in whole or in part of information submitted by the

4 Government ex parte and in camera to an immigration

5 judge, to the Board of Immigration Appeals or to any

6 court—

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

8 such information, and provide the alien with a rede9 termination of bond (or a reconsideration of the terms

10 of custody, as the case may be) based on evidence dis11 closed to the alien and the alien’s response to such

12 evidence;

13 (2) withdraw from the record of any proceedings

14 involving such alien any and all evidence, testimony,

15 or other information submitted by the Government ex

16 parte and in camera to the immigration judge, the

17 Board of Immigration Appeals, or to any court, as

18 the case may be, and—

19 (A) release such alien if such alien is de20 tained; and

21 (B) cease all restrictions on the liberty of

22 such alien if such restrictions exist,

23 unless detention is warranted solely on the basis of

24 evidence disclosed to the alien; or

25 (3) release such alien.
14

•HR 2121 RH

1 (b) APPLICATION TO ALIENS SEEKING IMMIGRATION

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

3 of this Act, the Attorney General shall, with respect to any

4 alien physically present in the United States whose applica5 tion for an immigration benefit is or was opposed by the

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

7 submitted by the Government ex parte and in camera to

8 an immigration judge, to the Board of Immigration Ap9 peals, 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 ap13 plication 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 public

16 record;

17 (2) withdraw from the record of any proceedings

18 involving such alien any and all evidence, testimony,

19 or other information submitted by the Government ex

20 parte and in camera to the immigration judge, the

21 Board of Immigration Appeals, or to any court, as

22 the case may be, and grant or deny the application

23 or reopen the proceedings and afford the alien de novo

24 reconsideration of the application, as the case may be,

25 based solely on evidence in the public record; or
15

•HR 2121 RH

1 (3) grant the application.

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

3 alien in immigration proceedings as of the effective date

4 of this Act conducted under title V of the Immigration and

5 Nationality Act—

6 (1) such proceedings are terminated as of the ef7 fective date of this Act without prejudice to the Attor8 ney General or the alien; and

9 (2) the Attorney General may, in his or her dis10 cretion, commence de novo removal proceedings with11 in 10 days thereafter under section 240 of the Immi12 gration and Nationality Act (8 U.S.C. 1229a).

13 SEC. 8. REGULATIONS.

14 The Attorney General shall promulgate regulations, in15 cluding regulations governing applications for asylum,

16 withholding of deportation or removal, adjustment of status,

17 naturalization, temporary protected status, and relief from

18 deportation, exclusion, or removal to implement this Act not

19 more than 90 days after the effective date of this Act.

20 SEC. 9. EFFECTIVE DATE.

21 The amendments made by this Act shall take effect on

22 the date of the enactment of this Act and shall apply to

23 all aliens without regard to the date of arrival, admission,

24 entry, or parole into the United States.
Union Calendar No. 579

106TH CONGRESS

2D SESSION H. R. 2121

[Report No. 106–981]

A BILL

To ensure that no alien is removed, denied a benefit

under the Immigration and Nationality Act, orotherwise deprived of liberty, based on evidencethat is kept secret from the alien.

OCTOBER 17, 2000

Reported with an amendment, committed to the Committee of the Whole House on the State of the Union,

and ordered to be printed