I

107TH CONGRESS

1ST SESSION H. R. 2113

To amend the Immigration and Nationality Act to ensure that no permanent

resident alien or alien in the United States with an unexpired visa

is removed or otherwise deprived of liberty, based on evidence that

is kept secret from the alien.

IN THE HOUSE OF REPRESENTATIVES

JUNE 7, 2001

Mr. ROHRABACHER introduced the following bill; which was referred to the

Committee on the Judiciary

A BILL

To amend the Immigration and Nationality Act to ensure

that no permanent resident alien or alien in the United

States with an unexpired visa is removed 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

5 Against Lawful Aliens Repeal Act of 2001’’.

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 who is a lawful permanent resident alien or

3 other alien with an unexpired visa should be de4 prived of liberty based on evidence kept secret from

5 that person, including information classified for na6 tional security reasons.

7 (2) Use of secret evidence in immigration pro8 ceedings against lawful aliens deprives such aliens of

9 due process rights guaranteed under the United

10 States Constitution and undermines our adversarial

11 system, which relies on cross-examination as an en12 gine of truth-seeking.

13 SEC. 3. APPLICATION OF PROCEDURES USED UNDER CLAS14 SIFIED INFORMATION PROCEDURES ACT

15 (CIPA) TO IMMIGRATION PROCEEDINGS.

16 (a) APPLICATION OF PROCEDURES USED UNDER

17 CLASSIFIED INFORMATION PROCEDURES ACT (CIPA) TO

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

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

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

21 ‘‘APPLICATION OF PROCEDURES USED UNDER CLASSI22 FIED INFORMATION PROCEDURES ACT TO CERTAIN

23 IMMIGRATION PROCEEDINGS

24 ‘‘SEC. 295. (a) NOTICE OF INTENDED USE OF CLAS25 SIFIED INFORMATION.—
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1 ‘‘(1) IN GENERAL.—In any immigration pro2 ceeding respecting an alien who is lawfully admitted

3 for permanent residence or otherwise present in the

4 United States with an unexpired visa in which the

5 Attorney General seeks to use classified information,

6 the Attorney General shall inform the alien and the

7 presiding officer in advance. To the maximum extent

8 practicable, if the Attorney General is initiating such

9 proceeding, the Attorney General shall provide such

10 notice within 15 days after initiating the proceeding.

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

12 seek to use classified information only in an immi13 gration proceeding described in paragraph (1) in

14 which the alien is alleged to be deportable under sec15 tion 237(a)(4)(B) or to oppose an application for ad16 mission or an application for discretionary relief

17 from removal and only after issuing the following

18 certification:

19 ‘‘(A) Substantially the same information

20 could not reasonably be developed from open

21 sources.

22 ‘‘(B) The Attorney General has informed

23 the classifying agency of its intent to use the

24 classified information in connection with immi25 gration proceedings and has requested such
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1 agency to declassify such information as is per2 mitted to be declassified under the President’s

3 Executive Order on classification.

4 ‘‘(b) REFERRAL OF CLASSIFIED MATTERS TO DIS5 TRICT COURT.—

6 ‘‘(1) IN GENERAL.—In the case of an immigra7 tion proceeding described in subsection (a)(1) in

8 which the Attorney General or the alien moves for

9 a referral under this section to consider matters re10 lating to classified information that may arise in

11 connection with the proceeding, the presiding officer

12 shall forward the petition for review to a Federal

13 district court for the district in which the alien re14 sides or the place where the immigration proceedings

15 are pending, of the use of such information in such

16 proceeding under subsection (c). Any evidence which

17 is the subject of a petition shall not be considered

18 in the immigration proceeding and shall not be ex19 amined by the presiding officer, except as provided

20 in paragraph (3).

21 ‘‘(2) SUSPENSION OF IMMIGRATION PRO22 CEEDING.—In the case of an order or review pro23 vided for under paragraph (1), the immigration pro24 ceeding may be suspended by the presiding officer

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

2 matter).

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

4 a referral under paragraph (1)(A), after the applica5 tion of subsection (c), the district court shall issue

6 an order to the presiding officer at the proceeding

7 indicating any unclassified summary of classified in8 formation, and admissions in lieu of disclosure of

9 classified information, that may be used and the

10 conditions of its use at the proceeding. The pre11 siding officer shall determine whether any informa12 tion approved by the order may be offered at the im13 migration proceeding.

14 ‘‘(c) APPLICATION OF CIPA.—

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

16 provisions of this section, in the cases described in

17 subsection (b)(1) involving review by a Federal dis18 trict court of the use of classified information in an

19 immigration proceeding, the provisions of the Classi20 fied Information Procedures Act (18 U.S.C. Appen21 dix III) (in this section referred to as ‘CIPA’) shall

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

23 proceeding in the same manner as it applies to a

24 defendant in a criminal proceeding subject to CIPA.
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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
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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) Whether the Federal district

23 court approved the summary of classified

24 information and the deletions or admis25 sions proffered by the Attorney General.
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1 ‘‘(iv) Whether the alien was ultimately

2 ordered removed under section

3 237(a)(4)(B) or was granted or denied ad4 mission.

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

6 any immigration proceeding under this section, the Attor7 ney General shall disclose to the alien information that

8 it would be required to disclose to a defendant in an analo9 gous criminal proceeding under CIPA.

10 ‘‘(e) APPOINTMENT OF COUNSEL.—In any immigra11 tion proceeding described in subsection (a)(1), any alien

12 financially unable to obtain counsel shall be entitled to

13 have counsel assigned to represent such alien. Counsel

14 may be appointed as described in section 3006A of title

15 18, United States Code.

16 ‘‘(f) CONSTRUCTION CONCERNING DECLASSIFICA17 TION OF INFORMATION.—Nothing in this section shall be

18 construed as preventing an alien who is lawfully admitted

19 for permanent residence or otherwise present in the

20 United States with an unexpired visa in an immigration

21 proceeding from seeking access to classified information

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

23 the case of information which is not disclosed based on

24 section 552(b)(1) of such title, from initiating an action
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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 is amended by

18 adding at the end the following new section:

19 ‘‘SEC. 508. LIMITATION ON APPLICATION OF TITLE.

20 ‘‘This title shall not apply to any alien who is lawfully

21 admitted for permanent residence or who is otherwise

22 present in the United States with an unexpired visa.’’.

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

24 240(b)(4)(B) of the Immigration and Nationality
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1 Act (8 U.S.C. 1229a(b)(4)(B)) is amended by in2 serting ‘‘(subject to section 295)’’ after ‘‘but’’.

3 (3) BURDEN ON ALIEN.—The last sentence of

4 section 240(c)(2) of such Act (8 U.S.C. 1229a(c)(2))

5 is amended by inserting ‘‘and for which disclosure is

6 not provided under section 295’’ after ‘‘not consid7 ered by the Attorney General to be confidential’’

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

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

10 et seq.) is amended—

11 (1) by inserting after the item relating to sec12 tion 294 the following new item:

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

13 (2) by adding after the item relating to section

14 507 the following new item:

‘‘Sec. 508. Limitation on application of title.’’.

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

16 PROCEEDINGS AND JUDICIAL REVIEW OF

17 BOND DETERMINATIONS.

18 (a) ALIENS’ RIGHTS IN BOND PROCEEDINGS.—Sec19 tion 236 of the Immigration and Nationality Act (8 U.S.C.

20 1226) is amended by adding at the end the following:

21 ‘‘(f) ALIENS’ RIGHTS IN BOND PROCEEDINGS.—Sub22 ject to section 295, in proceedings under this section in

23 the case of an alien who is lawfully admitted for perma-
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1 nent residence or otherwise present in the United States

2 with an unexpired visa—

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

4 represented, at no expense to the Government, by

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

6 practice in such proceedings;

7 ‘‘(2) the alien shall have a reasonable oppor8 tunity to examine the evidence against the alien, to

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

10 cross-examine all witnesses presented by the Govern11 ment; and

12 ‘‘(3) a complete record shall be kept of all testi13 mony and evidence produced at the proceeding.’’.

14 (b) JUDICIAL REVIEW.—Section 236(e) of the Immi15 gration and Nationality Act (8 U.S.C. 1226(e)) is

16 amended—

17 (1) in the first sentence, by inserting ‘‘to an

18 alien who is not a lawful permanent resident or who

19 otherwise has an unexpired visa’’ after ‘‘application

20 of this section’’;

21 (2) in the second sentence, by inserting ‘‘who is

22 not a lawful permanent resident or who otherwise

23 has an unexpired visa’’ after ‘‘of any alien’’; and

24 (3) by adding at the end the following: ‘‘Not25 withstanding any other provision of law, any alien
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1 who is a lawful permanent resident or who otherwise

2 has an unexpired visa and against whom an order

3 concerning detention, release on bond or parole

4 pending or subsequent to an order of deportability,

5 excludability, or removability shall be entitled to ju6 dicial review thereof in habeas corpus proceedings to

7 determine whether the Attorney General is acting in

8 violation of the laws or Constitution of the United

9 States, or is not proceeding with such reasonable

10 dispatch as may be warranted by the particular facts

11 and circumstances of the case.’’.

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

13 LAWFUL ALIENS.

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

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

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

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

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

19 immigration officer or an immigration judge

20 suspects that an arriving alien may be inadmis21 sible under subparagraph (A) (other than

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

23 officer or judge shall—

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

25 to review under paragraph (2);
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1 ‘‘(ii) report the order of removal to

2 the Attorney General; and

3 ‘‘(iii) not conduct any further inquiry

4 or hearing until ordered by the Attorney

5 General.

6 ‘‘(B) EXCEPTED ALIENS DESCRIBED.—An

7 alien described in this subparagraph is an alien

8 who—

9 ‘‘(i) is a lawful permanent resident; or

10 ‘‘(ii) has an unexpired visa.’’.

11 SEC. 6. TRANSITION.

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

13 30 days after the effective date of this Act, the Attorney

14 General shall, with respect to any alien who is lawfully

15 admitted for permanent residence or otherwise present in

16 the United States with an unexpired visa then detained

17 or whose liberty is otherwise restricted by the Attorney

18 General, on the basis in whole or in part of information

19 submitted by the Government ex parte and in camera to

20 an immigration judge, to the Board of Immigration Ap21 peals or to any court—

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

23 such information, and provide the alien with a rede24 termination of bond (or a reconsideration of the

25 terms of custody, as the case may be) based on evi-
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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) TERMINATION OF PROCEEDINGS.—In the case of

19 an alien who is lawfully admitted for permanent residence

20 or otherwise in the United States with an unexpired visa

21 and who is in immigration proceedings as of the effective

22 date of this Act conducted under title V of the Immigra23 tion and Nationality Act—
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1 (1) such proceedings are terminated as of the

2 effective date of this Act without prejudice to the

3 Attorney General or the alien; and

4 (2) the Attorney General may, in his or her dis5 cretion, commence de novo removal proceedings

6 within 10 days thereafter under section 240 of the

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

8 and proceedings under section 295, if applicable.

9 SEC. 7. REGULATIONS.

10 The Attorney General shall promulgate regulations,

11 including regulations governing applications for with12 holding of deportation or removal and relief from deporta13 tion, exclusion, or removal to implement this Act not more

14 than 90 days after the effective date of this Act.

15 SEC. 8. EFFECTIVE DATE.

16 The amendments made by this Act shall take effect

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

18 to all aliens who are lawful permanent residents or who

19 otherwise have an unexpired visa without regard to the

20 date of arrival, admission, or entry into the United States.

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