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 Com-
mittee 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. GUTIER-
REZ, 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. BECER-
RA, 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. BALD-
WIN, 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,
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. TURN-
ER, 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 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 2000’’.
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 na-
tional security reasons.
(2) Removal from the United States can separate
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 guar-
anteed under the United States Constitution and un-
dermines 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 CLASSIFIED
INFORMATION
PROCEDURES
ACT
TO
IMMIGRATION
PROCEEDINGS
‘‘SEC. 295. (a) NOTICE OF INTENDED USE OF CLASSI-
FIED 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 dis-
cretionary 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 classi-
fied information in connection with immigration
proceedings and has requested such agency to de-
classify such information as is permitted 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 pre-
siding 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 pro-
ceedings are pending, of the use of such information
in such proceeding under subsection (c). Any evidence
which is the subject of a petition shall not be consid-
ered in the immigration proceeding and shall not be
examined by the presiding officer, except as provided
in paragraph (3).
‘‘(2) 
SUSPENSION
OF
IMMIGRATION
PRO-
CEEDING.—In the case of an order or review provided
for under paragraph (1), the immigration proceeding
may be suspended by the presiding officer pending the
disposition of such matter by the district court in-
volved (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 indi-
cating any unclassified summary of classified infor-
mation, and admissions in lieu of disclosure of classi-
fied information, that may be used and the conditions
of its use at the proceeding. The presiding officer shall
determine whether any information approved by the
order may be offered at the immigration 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. Appendix
III) (in this section referred to as ‘CIPA’) shall apply
to an alien who is a subject of the immigration pro-
ceeding in the same manner as it applies to a defend-
ant in a criminal proceeding subject to CIPA.
‘‘(2) GENERAL RULES OF APPLICATION.—In ap-
plying 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 immi-
gration proceeding;
‘‘(ii) an indictment or information at
issue is deemed to be a reference to a notice
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 im-
migration proceeding) to the presiding offi-
cer 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-judi-
cial 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 sec-
tion 13 of CIPA, the Attorney General shall re-
port 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 implementation
of this section. Such reports shall include the fol-
lowing 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 infor-
mation and the deletions or admissions
proffered by the Attorney General.
‘‘(v) Whether the alien was ultimately
ordered removed under section 237(a)(4)(B)
or was granted or denied admission 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 analogous
criminal proceeding under CIPA.
‘‘(e) CONSTRUCTION CONCERNING DECLASSIFICATION
OF INFORMATION.—Nothing in this section shall be con-
strued 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 involved.
‘‘(f) DEFINITIONS.—For purposes of this section:
‘‘(1) IMMIGRATION PROCEEDING.—The term ‘im-
migration proceeding’ means any administrative pro-
ceeding under this Act.
‘‘(2) PRESIDING OFFICER.—The term ‘presiding
officer’ means, with respect to an immigration pro-
ceeding, the administrative or judicial official who is
presiding over the immigration proceeding.’’.
(b) CONFORMING AMENDMENT.—Title V of the Immi-
gration and Nationality Act (8 U.S.C. 1531–1537) is re-
pealed.
(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 section
294 the following new item:
‘‘Sec. 295. Application of procedures used under Classified Information Procedures
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 OTHER
IMMIGRATION PROCEEDINGS.
(a) ALIEN’S
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 all of
the evidence against the alien, to present evi-
dence on the alien’s own behalf, and to cross-ex-
amine all witnesses presented by the Govern-
ment, and’’.
(b) BURDEN ON ALIEN.—Section 240(c)(2) of such Act
(8 U.S.C. 1229a(c)(2)) is amended by striking the last sen-
tence and inserting the following:
‘‘In meeting the burden of proof under subparagraph
(B), subject to section 295, the alien shall have access
to the alien’s visa or other entry document, if any,
and any other records and documents pertaining the
alien’s admission or presence in the United States.’’.
SEC. 5. REPEAL OF USE OF SECRET EVIDENCE IN BOND
PROCEEDINGS.
Section 236 of the Immigration and Nationality Act
(8 U.S.C. 1226) is amended by adding at the end the fol-
lowing:
‘‘(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 all of 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) a complete record shall be kept of all testi-
mony and evidence produced at the proceeding.’’.
SEC. 6. 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. 7. 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 lib-
erty is otherwise restricted by the Attorney General, on the
basis in whole or in part of information submitted 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 evidence dis-
closed to the alien and the alien’s response to such
evidence;
(2) withdraw from the record of any proceedings
involving such alien any and all evidence, testimony,
or other information submitted by the Government ex
parte and in camera to the immigration 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; or
(3) 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 applica-
tion 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 in camera to
an immigration judge, to the Board of Immigration Ap-
peals, or to any court—
(1) provide such alien a copy or transcript of
such information and a reasonable opportunity to re-
spond to such information, and grant or deny the ap-
plication or reopen the proceedings and afford the
alien de novo reconsideration of the application, as
the case may be, based solely on evidence in the public
record;
(2) withdraw from the record of any proceedings
involving such alien any and all evidence, testimony,
or other information submitted by the Government ex
parte and in camera to the immigration judge, the
Board of Immigration Appeals, or to any court, as
the case may be, and grant or deny the application
or reopen the proceedings and afford the alien de novo
reconsideration of the application, as the case may be,
based solely on evidence in the public record; or
(3) grant the application.
(c) TERMINATION OF PROCEEDINGS.—In the case of an
alien in immigration proceedings as of the effective date
of this Act conducted under title V of the Immigration and
Nationality Act—
(1) such proceedings are terminated as of the ef-
fective date of this Act without prejudice to the Attor-
ney General or the alien; and
(2) the Attorney General may, in his or her dis-
cretion, commence de novo removal proceedings with-
in 10 days thereafter under section 240 of the Immi-
gration and Nationality Act (8 U.S.C. 1229a).
SEC. 8. REGULATIONS.
The Attorney General shall promulgate regulations, in-
cluding regulations governing applications for asylum,
withholding of deportation or removal, adjustment of status,
naturalization, temporary protected status, and relief from
deportation, exclusion, or removal to implement this Act not
more than 90 days after the effective date of this Act.
SEC. 9. EFFECTIVE DATE.
The amendments made by this Act shall take effect on
the date of the enactment of this Act and shall apply to
all aliens without regard to the date of arrival, admission,
entry, or parole into the United States.