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 de-
prived of liberty, based on evidence that is kept secret
from the alien.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Secret Evidence Repeal
Act of 2001’’.
SEC. 2. FINDINGS.
The Congress makes the following findings:
(1) No person physically present in the United
States, including its outlying possessions, should be
deprived of liberty based on evidence kept secret
from that person, including information classified for
national security reasons.
(2) Removal from the United States can sepa-
rate a person from the person’s family, may expose
the person to persecution and torture, and amounts
to a severe deprivation of liberty.
(3) Use of secret evidence in immigration pro-
ceedings deprives the alien of due process rights
guaranteed under the United States Constitution
and undermines our adversarial system, which relies
on cross-examination as an engine of truth-seeking.
SEC. 3. APPLICATION OF PROCEDURES USED UNDER CLAS-
SIFIED 
INFORMATION 
PROCEDURES 
ACT
(CIPA) TO IMMIGRATION PROCEEDINGS.
(a) APPLICATION
OF PROCEDURES USED
UNDER
CLASSIFIED INFORMATION PROCEDURES ACT (CIPA) TO
IMMIGRATION PROCEEDINGS.—Chapter 9 of title II of the
Immigration and Nationality Act (8 U.S.C. 1351 et seq.)
is amended by adding at the end the following new section:
‘‘APPLICATION
OF
PROCEDURES
USED
UNDER
CLASSI-
FIED INFORMATION PROCEDURES ACT TO IMMIGRA-
TION PROCEEDINGS
‘‘SEC. 295. (a) NOTICE OF INTENDED USE OF CLAS-
SIFIED INFORMATION.—
‘‘(1) IN GENERAL.—In any immigration pro-
ceeding in which the Attorney General seeks to use
classified information, the Attorney General shall in-
form the alien and the presiding officer in advance.
To the maximum extent practicable, if the Attorney
General is initiating such proceeding, the Attorney
General shall provide such notice within 15 days
after initiating the proceeding.
‘‘(2) LIMITATION.—The Attorney General may
seek to use classified information only in an immi-
gration proceeding in which the alien is alleged to be
deportable under section 237(a)(4)(B) or to oppose
an application for admission or an application for
discretionary relief from removal and only after
issuing the following certification:
‘‘(A) Substantially the same information
could not reasonably be developed from open
sources.
‘‘(B) The Attorney General has informed
the classifying agency of its intent to use the
classified information in connection with immi-
gration proceedings and has requested such
agency to declassify such information as is per-
mitted to be declassified under the President’s
Executive Order on classification.
‘‘(b) REFERRAL OF CLASSIFIED MATTERS TO DIS-
TRICT COURT.—
‘‘(1) IN GENERAL.—In the case of an immigra-
tion proceeding in which the Attorney General or the
alien moves for a referral under this section to con-
sider matters relating to classified information that
may arise in connection with the proceeding, the
presiding officer shall forward the petition for review
to a Federal district court for the district in which
the alien resides or the place where the immigration
proceedings are pending, of the use of such informa-
tion in such proceeding under subsection (c). Any
evidence which is the subject of a petition shall not
be considered in the immigration proceeding and
shall not be examined by the presiding officer, ex-
cept as provided in paragraph (3).
‘‘(2) 
SUSPENSION
OF
IMMIGRATION
PRO-
CEEDING.—In the case of an order or review pro-
vided for under paragraph (1), the immigration pro-
ceeding may be suspended by the presiding officer
pending the disposition of such matter by the dis-
trict court involved (and any appeals related to such
matter).
‘‘(3) SUBMISSION OF SUMMARY.—In the case of
a referral under paragraph (1)(A), after the applica-
tion of subsection (c), the district court shall issue
an order to the presiding officer at the proceeding
indicating any unclassified summary of classified in-
formation, and admissions in lieu of disclosure of
classified information, that may be used and the
conditions of its use at the proceeding. The pre-
siding officer shall determine whether any informa-
tion approved by the order may be offered at the im-
migration proceeding.
‘‘(c) APPLICATION OF CIPA.—
‘‘(1) IN GENERAL.—Subject to the succeeding
provisions of this section, in the cases described in
subsection (b)(1) involving review by a Federal dis-
trict court of the use of classified information in an
immigration proceeding, the provisions of the Classi-
fied Information Procedures Act (18 U.S.C. Appen-
dix III) (in this section referred to as ‘CIPA’) shall
apply to an alien who is a subject of the immigration
proceeding in the same manner as it applies to a de-
fendant in a criminal proceeding subject to CIPA.
‘‘(2) GENERAL
RULES
OF
APPLICATION.—In
applying subsection (a), the following general rules
apply:
‘‘(A) Any reference in CIPA to—
‘‘(i) a criminal defendant or a trial (or
pre-trial) proceeding is deemed to be a ref-
erence to the alien who is the subject of
the immigration proceeding and to the im-
migration proceeding;
‘‘(ii) an indictment or information at
issue is deemed to be a reference to a no-
tice to appear;
‘‘(iii) a dismissal of an indictment or
information is deemed a reference to termi-
nation of the immigration proceeding
against an alien; and
‘‘(iv) a trial court is deemed a ref-
erence (in the case of an administrative
immigration proceeding) to the presiding
officer in such proceeding.
‘‘(B) The provisions of section 2 of CIPA
(other than the last sentence) shall not be ap-
plied.
‘‘(C) The Attorney General shall prescribe
rules establishing procedures for the protection
against unauthorized disclosure of classified in-
formation in the custody of the Federal non-ju-
dicial officials in immigration proceedings. Such
rules shall apply instead of the rules described
in section 9 of CIPA.
‘‘(D) Section 12 of CIPA shall not be ap-
plied to immigration proceedings.
‘‘(E) In lieu of the reports described in
section 13 of CIPA, the Attorney General shall
report annually and in writing to the chairmen
and ranking minority members of the Commit-
tees on the Judiciary of the Senate and the
House of Representatives on the implementa-
tion of this section. Such reports shall include
the following information about each case
brought under this section:
‘‘(i) The alien’s country of citizenship
or, if the alien was stateless, the country in
which the alien last habitually resided out-
side of the United States.
‘‘(ii) The alien’s immigration status.
‘‘(iii) The immigration benefit for
which the alien applied (if any).
‘‘(iv) Whether the Federal district
court approved the summary of classified
information and the deletions or admis-
sions proffered by the Attorney General.
‘‘(v) Whether the alien was ultimately
ordered 
removed 
under 
section
237(a)(4)(B) or was granted or denied ad-
mission or the benefit for which the alien
applied.
‘‘(d) DISCLOSURE OF EXCULPATORY EVIDENCE.—In
any immigration proceeding under this section, the Attor-
ney General shall disclose to the alien information that
it would be required to disclose to a defendant in an analo-
gous criminal proceeding under CIPA.
‘‘(e) APPOINTMENT OF COUNSEL.—In any immigra-
tion proceeding under this section, any alien financially
unable to obtain counsel shall be entitled to have counsel
assigned to represent such alien. Counsel may be ap-
pointed as described in section 3006A of title 18, United
States Code.
‘‘(f) CONSTRUCTION CONCERNING DECLASSIFICA-
TION OF INFORMATION.—Nothing in this section shall be
construed as preventing an alien in an immigration pro-
ceeding from seeking access to classified information
under section 552 of title 5, United States Code, or, in
the case of information which is not disclosed based on
section 552(b)(1) of such title, from initiating an action
to seek to declassify some or all of the information in-
volved.
‘‘(g) EXPEDITED
PROCEEDINGS.—To the extent
practicable and in the interests of justice, proceedings
under this section shall be conducted on an expedited
basis.
‘‘(h) DEFINITIONS.—For purposes of this section:
‘‘(1) IMMIGRATION
PROCEEDING.—The term
‘immigration proceeding’ means any administrative
proceeding under this Act.
‘‘(2) PRESIDING
OFFICER.—The term ‘pre-
siding officer’ means, with respect to an immigration
proceeding, the administrative or judicial official who
is presiding over the immigration proceeding.’’.
(b) CONFORMING AMENDMENTS.—
(1) ALIEN TERRORIST REMOVAL.—Title V of
the Immigration and Nationality Act (8 U.S.C.
1531–1537) is repealed.
(2) ALIENS’ RIGHTS IN PROCEEDINGS.—Section
240(b)(4)(B) of the Immigration and Nationality
Act (8 U.S.C. 1229a(b)(4)(B)) is amended to read
as follows:
‘‘(B) subject to section 295, the alien shall
have a reasonable opportunity to examine the
evidence against the alien, to present evidence
on the alien’s own behalf, and to cross-examine
all witnesses presented by the Government,
and’’.
(3) BURDEN ON ALIEN.—Section 240(c)(2) of
such Act (8 U.S.C. 1229a(c)(2)) is amended by
striking the last sentence and inserting the fol-
lowing:
‘‘In meeting the burden of proof under subpara-
graph (B), subject to section 295, the alien shall
have access to the alien’s visa or other entry docu-
ment, if any, and any other records and documents
pertaining the alien’s admission or presence in the
United States.’’.
(c) CLERICAL AMENDMENTS.—The table of contents
for the Immigration and Nationality Act (8 U.S.C. 1101
et seq.) is amended—
(1) by inserting after the item relating to sec-
tion 294 the following new item:
‘‘Sec. 295. Application of procedures used under Classified Information Proce-
dures Act to immigration proceedings.’’; and
(2) by striking the title heading, and the items,
relating to title V.
SEC. 4. REPEAL OF USE OF SECRET EVIDENCE IN BOND
PROCEEDINGS AND JUDICIAL REVIEW OF
BOND DETERMINATIONS.
(a) ALIENS’ RIGHTS IN BOND PROCEEDINGS.—Sec-
tion 236 of the Immigration and Nationality Act (8 U.S.C.
1226) is amended by adding at the end the following:
‘‘(f) ALIENS’ RIGHTS IN BOND PROCEEDINGS.—Sub-
ject to section 295, in proceedings under this section—
‘‘(1) the alien shall have the privilege of being
represented, at no expense to the Government, by
counsel of the alien’s choosing who is authorized to
practice in such proceedings;
‘‘(2) the alien shall have a reasonable oppor-
tunity to examine the evidence against the alien, to
present evidence on the alien’s own behalf, and to
cross-examine all witnesses presented by the Govern-
ment; and
‘‘(3) a complete record shall be kept of all testi-
mony and evidence produced at the proceeding.’’.
(b) JUDICIAL REVIEW.—Section 236(e) of the Immi-
gration and Nationality Act (8 U.S.C. 1226(e)) is amend-
ed to read as follows:
‘‘(e) JUDICIAL REVIEW.—Notwithstanding any other
provision of law, any alien against whom an order con-
cerning detention, release on bond or parole pending or
subsequent to an order of deportability, excludability, or
removability shall be entitled to judicial review thereof in
habeas corpus proceedings to determine whether the At-
torney General is acting in violation of the laws or Con-
stitution of the United States, or is not proceeding with
such reasonable dispatch as may be warranted by the par-
ticular facts and circumstances of the case.’’.
SEC. 5. REPEAL OF USE OF SECRET EVIDENCE AGAINST
LAWFUL PERMANENT RESIDENTS, ASYLUM
SEEKERS, AND ALIENS PAROLED INTO THE
UNITED STATES.
Section 235(c)(1) of the Immigration and Nationality
Act (8 U.S.C. 1225(c)(1)) is amended to read as follows:
‘‘(1) REMOVAL WITHOUT FURTHER HEARING.—
‘‘(A) IN GENERAL.—Except in the case of
an alien described in subparagraph (B), if an
immigration officer or an immigration judge
suspects that an arriving alien may be inadmis-
sible under subparagraph (A) (other than
clause (ii)), (B), or (C) of section 212(a)(3), the
officer or judge shall—
‘‘(i) order the alien removed, subject
to review under paragraph (2);
‘‘(ii) report the order of removal to
the Attorney General; and
‘‘(iii) not conduct any further inquiry
or hearing until ordered by the Attorney
General.
‘‘(B) EXCEPTED ALIENS DESCRIBED.—An
alien described in this subparagraph is an alien
who—
‘‘(i) is a lawful permanent resident;
‘‘(ii) was granted advance parole;
‘‘(iii) was paroled into the United
States under section 212(d)(5); or
‘‘(iv) is seeking asylum.’’.
SEC. 6. TRANSITION.
(a) APPLICATION TO DETAINEES.—Not more than
30 days after the effective date of this Act, the Attorney
General shall, with respect to any alien then detained or
whose liberty is otherwise restricted by the Attorney Gen-
eral, on the basis in whole or in part of information sub-
mitted by the Government ex parte and in camera to an
immigration judge, to the Board of Immigration Appeals
or to any court—
(1) provide such alien a copy or transcript of
such information, and provide the alien with a rede-
termination of bond (or a reconsideration of the
terms of custody, as the case may be) based on evi-
dence disclosed to the alien and the alien’s response
to such evidence;
(2) withdraw from the record of any pro-
ceedings involving such alien any and all evidence,
testimony, or other information submitted by the
Government ex parte and in camera to the immigra-
tion judge, the Board of Immigration Appeals, or to
any court, as the case may be, and—
(A) release such alien if such alien is de-
tained; and
(B) cease all restrictions on the liberty of
such alien if such restrictions exist,
unless detention is warranted solely on the basis of
evidence disclosed to the alien;
(3) initiate proceedings under section 295, if
applicable; or
(4) release such alien.
(b) APPLICATION TO ALIENS SEEKING IMMIGRATION
BENEFITS.—Not more than 30 days after the effective
date of this Act, the Attorney General shall, with respect
to any alien physically present in the United States whose
application for an immigration benefit is or was opposed
by the Government on the basis in whole or in part of
information submitted by the Government ex parte and