I

107TH CONGRESS

1ST SESSION H. R. 1266

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

MARCH 28, 2001

Mr. BONIOR (for himself, Mr. BARR of Georgia, Mr. CONYERS, Mr. TOM

DAVIS of Virginia, Ms. JACKSON-LEE of Texas, Mr. DINGELL, Mr.

TOOMEY, Ms. MCKINNEY, Mr. HINCHEY, and Mr. TOWNS) 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 2001’’.

6 SEC. 2. FINDINGS.

7 The Congress makes the following findings:
2

•HR 1266 IH

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. APPLICATION OF PROCEDURES USED UNDER CLAS16 SIFIED INFORMATION PROCEDURES ACT

17 (CIPA) TO IMMIGRATION PROCEEDINGS.

18 (a) APPLICATION OF PROCEDURES USED UNDER

19 CLASSIFIED INFORMATION PROCEDURES ACT (CIPA) TO

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

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

22 is amended by adding at the end the following new section:
3

•HR 1266 IH

1 ‘‘APPLICATION OF PROCEDURES USED UNDER CLASSI2 FIED INFORMATION PROCEDURES ACT TO IMMIGRA3 TION PROCEEDINGS

4 ‘‘SEC. 295. (a) NOTICE OF INTENDED USE OF CLAS5 SIFIED INFORMATION.—

6 ‘‘(1) IN GENERAL.—In any immigration pro7 ceeding in which the Attorney General seeks to use

8 classified information, the Attorney General shall in9 form the alien and the presiding officer in advance.

10 To the maximum extent practicable, if the Attorney

11 General is initiating such proceeding, the Attorney

12 General shall provide such notice within 15 days

13 after initiating the proceeding.

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

15 seek to use classified information only in an immi16 gration proceeding in which the alien is alleged to be

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

18 an application for admission or an application for

19 discretionary relief from removal and only after

20 issuing the following certification:

21 ‘‘(A) Substantially the same information

22 could not reasonably be developed from open

23 sources.

24 ‘‘(B) The Attorney General has informed

25 the classifying agency of its intent to use the
4

•HR 1266 IH

1 classified information in connection with immi2 gration proceedings and has requested such

3 agency to declassify such information as is per4 mitted to be declassified under the President’s

5 Executive Order on classification.

6 ‘‘(b) REFERRAL OF CLASSIFIED MATTERS TO DIS7 TRICT COURT.—

8 ‘‘(1) IN GENERAL.—In the case of an immigra9 tion proceeding in which the Attorney General or the

10 alien moves for a referral under this section to con11 sider matters relating to classified information that

12 may arise in connection with the proceeding, the

13 presiding officer shall forward the petition for review

14 to a Federal district court for the district in which

15 the alien resides or the place where the immigration

16 proceedings are pending, of the use of such informa17 tion in such proceeding under subsection (c). Any

18 evidence which is the subject of a petition shall not

19 be considered in the immigration proceeding and

20 shall not be examined by the presiding officer, ex21 cept as provided in paragraph (3).

22 ‘‘(2) SUSPENSION OF IMMIGRATION PRO23 CEEDING.—In the case of an order or review pro24 vided for under paragraph (1), the immigration pro25 ceeding may be suspended by the presiding officer
5

•HR 1266 IH

1 pending the disposition of such matter by the dis2 trict court involved (and any appeals related to such

3 matter).

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

5 a referral under paragraph (1)(A), after the applica6 tion of subsection (c), the district court shall issue

7 an order to the presiding officer at the proceeding

8 indicating any unclassified summary of classified in9 formation, and admissions in lieu of disclosure of

10 classified information, that may be used and the

11 conditions of its use at the proceeding. The pre12 siding officer shall determine whether any informa13 tion approved by the order may be offered at the im14 migration proceeding.

15 ‘‘(c) APPLICATION OF CIPA.—

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

17 provisions of this section, in the cases described in

18 subsection (b)(1) involving review by a Federal dis19 trict court of the use of classified information in an

20 immigration proceeding, the provisions of the Classi21 fied Information Procedures Act (18 U.S.C. Appen22 dix III) (in this section referred to as ‘CIPA’) shall

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

24 proceeding in the same manner as it applies to a de25 fendant in a criminal proceeding subject to CIPA.
6

•HR 1266 IH

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

2 applying subsection (a), the following general rules

3 apply:

4 ‘‘(A) Any reference in CIPA to—

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

6 pre-trial) proceeding is deemed to be a ref7 erence to the alien who is the subject of

8 the immigration proceeding and to the im9 migration proceeding;

10 ‘‘(ii) an indictment or information at

11 issue is deemed to be a reference to a no12 tice to appear;

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

14 information is deemed a reference to termi15 nation of the immigration proceeding

16 against an alien; and

17 ‘‘(iv) a trial court is deemed a ref18 erence (in the case of an administrative

19 immigration proceeding) to the presiding

20 officer in such proceeding.

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

22 (other than the last sentence) shall not be ap23 plied.

24 ‘‘(C) The Attorney General shall prescribe

25 rules establishing procedures for the protection
7

•HR 1266 IH

1 against unauthorized disclosure of classified in2 formation in the custody of the Federal non-ju3 dicial officials in immigration proceedings. Such

4 rules shall apply instead of the rules described

5 in section 9 of CIPA.

6 ‘‘(D) Section 12 of CIPA shall not be ap7 plied to immigration proceedings.

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

9 section 13 of CIPA, the Attorney General shall

10 report annually and in writing to the chairmen

11 and ranking minority members of the Commit12 tees on the Judiciary of the Senate and the

13 House of Representatives on the implementa14 tion of this section. Such reports shall include

15 the following information about each case

16 brought under this section:

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

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

19 which the alien last habitually resided out20 side of the United States.

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

22 ‘‘(iii) The immigration benefit for

23 which the alien applied (if any).

24 ‘‘(iv) Whether the Federal district

25 court approved the summary of classified
8

•HR 1266 IH

1 information and the deletions or admis2 sions proffered by the Attorney General.

3 ‘‘(v) Whether the alien was ultimately

4 ordered removed under section

5 237(a)(4)(B) or was granted or denied ad6 mission or the benefit for which the alien

7 applied.

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

9 any immigration proceeding under this section, the Attor10 ney General shall disclose to the alien information that

11 it would be required to disclose to a defendant in an analo12 gous criminal proceeding under CIPA.

13 ‘‘(e) APPOINTMENT OF COUNSEL.—In any immigra14 tion proceeding under this section, any alien financially

15 unable to obtain counsel shall be entitled to have counsel

16 assigned to represent such alien. Counsel may be ap17 pointed as described in section 3006A of title 18, United

18 States Code.

19 ‘‘(f) CONSTRUCTION CONCERNING DECLASSIFICA20 TION OF INFORMATION.—Nothing in this section shall be

21 construed as preventing an alien in an immigration pro22 ceeding from seeking access to classified information

23 under section 552 of title 5, United States Code, or, in

24 the case of information which is not disclosed based on

25 section 552(b)(1) of such title, from initiating an action
9

•HR 1266 IH

1 to seek to declassify some or all of the information in2 volved.

3 ‘‘(g) EXPEDITED PROCEEDINGS.—To the extent

4 practicable and in the interests of justice, proceedings

5 under this section shall be conducted on an expedited

6 basis.

7 ‘‘(h) DEFINITIONS.—For purposes of this section:

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

9 ‘immigration proceeding’ means any administrative

10 proceeding under this Act.

11 ‘‘(2) PRESIDING OFFICER.—The term ‘pre12 siding officer’ means, with respect to an immigration

13 proceeding, the administrative or judicial official who

14 is presiding over the immigration proceeding.’’.

15 (b) CONFORMING AMENDMENTS.—

16 (1) ALIEN TERRORIST REMOVAL.—Title V of

17 the Immigration and Nationality Act (8 U.S.C.

18 1531–1537) is repealed.

19 (2) ALIENS’ RIGHTS IN PROCEEDINGS.—Section

20 240(b)(4)(B) of the Immigration and Nationality

21 Act (8 U.S.C. 1229a(b)(4)(B)) is amended to read

22 as follows:

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

24 have a reasonable opportunity to examine the

25 evidence against the alien, to present evidence
10

•HR 1266 IH

1 on the alien’s own behalf, and to cross-examine

2 all witnesses presented by the Government,

3 and’’.

4 (3) BURDEN ON ALIEN.—Section 240(c)(2) of

5 such Act (8 U.S.C. 1229a(c)(2)) is amended by

6 striking the last sentence and inserting the fol7 lowing:

8 ‘‘In meeting the burden of proof under subpara9 graph (B), subject to section 295, the alien shall

10 have access to the alien’s visa or other entry docu11 ment, if any, and any other records and documents

12 pertaining the alien’s admission or presence in the

13 United States.’’.

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

15 for the Immigration and Nationality Act (8 U.S.C. 1101

16 et seq.) is amended—

17 (1) by inserting after the item relating to sec18 tion 294 the following new item:

‘‘Sec. 295. Application of procedures used under Classified Information Procedures Act to immigration proceedings.’’; and

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

20 relating to title V.
11

•HR 1266 IH

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

2 PROCEEDINGS AND JUDICIAL REVIEW OF

3 BOND DETERMINATIONS.

4 (a) 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.—Sub8 ject to section 295, in 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 the evidence against the alien, to

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

16 cross-examine all witnesses presented by the Govern17 ment; and

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

20 (b) JUDICIAL REVIEW.—Section 236(e) of the Immi21 gration and Nationality Act (8 U.S.C. 1226(e)) is amend22 ed to read as follows:

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

24 provision of law, any alien against whom an order con25 cerning detention, release on bond or parole pending or

26 subsequent to an order of deportability, excludability, or
12

•HR 1266 IH

1 removability shall be entitled to judicial review thereof in

2 habeas corpus proceedings to determine whether the At3 torney General is acting in violation of the laws or Con4 stitution of the United States, or is not proceeding with

5 such reasonable dispatch as may be warranted by the par6 ticular facts and circumstances of the case.’’.

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

8 LAWFUL PERMANENT RESIDENTS, ASYLUM

9 SEEKERS, AND ALIENS PAROLED INTO THE

10 UNITED STATES.

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

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

13 ‘‘(1) REMOVAL WITHOUT FURTHER HEARING.—

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

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

16 immigration officer or an immigration judge

17 suspects that an arriving alien may be inadmis18 sible under subparagraph (A) (other than

19 clause (ii)), (B), or (C) of section 212(a)(3), the

20 officer or judge shall—

21 ‘‘(i) order the alien removed, subject

22 to review under paragraph (2);

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

24 the Attorney General; and
13

•HR 1266 IH

1 ‘‘(iii) not conduct any further inquiry

2 or hearing until ordered by the Attorney

3 General.

4 ‘‘(B) EXCEPTED ALIENS DESCRIBED.—An

5 alien described in this subparagraph is an alien

6 who—

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

8 ‘‘(ii) was granted advance parole;

9 ‘‘(iii) was paroled into the United

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

11 ‘‘(iv) is seeking asylum.’’.

12 SEC. 6. TRANSITION.

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

14 30 days after the effective date of this Act, the Attorney

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

16 whose liberty is otherwise restricted by the Attorney Gen17 eral, on the basis in whole or in part of information sub18 mitted by the Government ex parte and in camera to an

19 immigration judge, to the Board of Immigration Appeals

20 or to any court—

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

22 such information, and provide the alien with a rede23 termination of bond (or a reconsideration of the

24 terms of custody, as the case may be) based on evi-
14

•HR 1266 IH

1 dence disclosed to the alien and the alien’s response

2 to such evidence;

3 (2) withdraw from the record of any pro4 ceedings involving such alien any and all evidence,

5 testimony, or other information submitted by the

6 Government ex parte and in camera to the immigra7 tion judge, the Board of Immigration Appeals, or to

8 any court, as the case may be, and—

9 (A) release such alien if such alien is de10 tained; and

11 (B) cease all restrictions on the liberty of

12 such alien if such restrictions exist,

13 unless detention is warranted solely on the basis of

14 evidence disclosed to the alien;

15 (3) initiate proceedings under section 295, if

16 applicable; or

17 (4) release such alien.

18 (b) APPLICATION TO ALIENS SEEKING IMMIGRATION

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

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

21 to any alien physically present in the United States whose

22 application for an immigration benefit is or was opposed

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

24 information submitted by the Government ex parte and
15

•HR 1266 IH

1 in camera to an immigration judge, to the Board of Immi2 gration Appeals, or to any court—

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

4 such information and a reasonable opportunity to re5 spond to such information, and grant or deny the

6 application or reopen the proceedings and afford the

7 alien de novo reconsideration of the application, as

8 the case may be, based solely on evidence in the pub9 lic record;

10 (2) withdraw from the record of any pro11 ceedings involving such alien any and all evidence,

12 testimony, or other information submitted by the

13 Government ex parte and in camera to the immigra14 tion judge, the Board of Immigration Appeals, or to

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

16 the application or reopen the proceedings and afford

17 the alien de novo reconsideration of the application,

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

19 public record;

20 (3) initiate proceedings under section 295, if

21 applicable; or

22 (4) grant the application.

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

24 an alien in immigration proceedings as of the effective
16

•HR 1266 IH

1 date of this Act conducted under title V of the Immigra2 tion and Nationality Act—

3 (1) such proceedings are terminated as of the

4 effective date of this Act without prejudice to the

5 Attorney General or the alien; and

6 (2) the Attorney General may, in his or her dis7 cretion, commence de novo removal proceedings

8 within 10 days thereafter under section 240 of the

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

10 and proceedings under section 295, if applicable.

11 SEC. 7. REGULATIONS.

12 The Attorney General shall promulgate regulations,

13 including regulations governing applications for asylum,

14 withholding of deportation or removal, adjustment of sta15 tus, naturalization, temporary protected status, and relief

16 from deportation, exclusion, or removal to implement this

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

18 Act.

19 SEC. 8. EFFECTIVE DATE.

20 The amendments made by this Act shall take effect

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

22 to all aliens without regard to the date of arrival, admis23 sion, entry, or parole into the United States.

Æ