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“Secret Evidence” in Immigration Proceedings: Shield Against Terrorism, or Violation of Due Process?
by Carl R. Baldwin

“Secret Evidence” in Immigration Proceedings: Shield Against Terrorism, or Violation of Due Process? The Secret Evidence Repeal Act of 1999 was introduced in Congress by Representative David E. Bonior (D-MI) and others (both Democrats and Republicans) on June 10, 1999. The bill, H.R. 2121, was “To insure 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.” The bill responded to several cases affecting aliens who were deprived of liberty and denied all forms of immigration relief based on secret evidence that was not made known to them or their lawyers. The evidence, when it was shown to an immigration judge ex parte and in camera, was often found to be unpersuasive. For example, In Re Nasser Ahmed concerned a man who was denied bond, asylum and withholding of deportation based on secret evidence. After being held in custody for three years the immigration judge ordered his release. The judge criticized the INS for having relied on secret evidence, often in the form of “double or triple hearsay,” when non-secret material showing the same thing could have been used and shown to the alien for purposes of rebuttal. The fact that the aliens involved were Muslims or Arabs created in some minds the suspicion that a disfavored ethnic group was being unfairly targeted by the INS.

A hearing was held on the bill on March 23, 2000 before the Judiciary Committee of the House of Representatives, and the advocates and opponents of the bill were well represented. Those who were in favor of the use of secret evidence by the INS in immigration proceedings stressed what they believed to be the national security interests involved. Larry K. Parkinson, General Counsel of the Federal Bureau of Investigation, emphasized that the use of secret evidence in immigration proceedings was a rarity: “It is important to note that while the ex parte, in camera use of classified information has gathered much media attention, it is in fact quite rare. Classified evidence is involved in only 11 pending cases out of a total of 300,000 cases pending overall.” He concluded that it is still necessary in those rare cases “to protect the national security.”

Some of the arguments against the use of secret evidence were made by Gregory T. Nojeim, the Legislative Director of the American Civil Liberties Union. His objection to the use of secret evidence in immigration proceedings is well-summarized in this paragraph: “Secret evidence in the form of classified information often consists of mere rumor and innuendo. It is often unverified and unverifiable. It has not been, and cannot be, tested for reliability under rigorous cross-examination. Sometimes, it can be something as ‘secret’ as a newspaper clipping the substance of which could be refuted if only it was known. This is the kind of information that might trigger an investigation, but it is not the kind of information that ought to be relied upon to deprive a person of liberty.” The crux of the civil liberties argument is that the use of secret evidence is unconstitutional as a violation of the due process clause of the Fifth Amendment, and that the federal courts that have looked at the question have so decided. In one opinion the Ninth Circuit Court of Appeals had this to say about the use of secret evidence: “One would be hard pressed to design a procedure more likely to lead to erroneous deprivations.”

In an important recent development, the House Judiciary Committee on September 26, 2000 approved a substitute version of H.R. 2121. Adopting procedures in the Classified Information Procedures Act in connection with criminal defendants, a record of all proceedings, including those that are ex parte and in camera, would be kept. The bill authorizes the government to use classified evidence under certain conditions. It would have to suspend the immigration proceeding and take the evidence to a federal district court for its review. The court would then create an unclassified summary of the classified evidence, sufficient to enable the alien to prepare an adequate defense. A copy of the summary would be given to the alien and the immigration judge, and the immigration proceeding would then be resumed. The substitute bill was approved 16-2, and will now go to the House floor for debate.

The substitute bill should satisfy the needs of both the defenders of national security and of due process. But we will have to see what the views of the next Attorney General are on the use of secret evidence in immigration proceedings.


About The Author

Carl R. Baldwin graduated from Columbia University Law School in 1980, and became a member of the New York State Bar a year later. He worked for three years with the New York City Law Department, and then entered solo practice in immigration law, which he has continued to the present. His work with clients has included asylum applications, deportation defense, visa processing, adjustment of status, and naturalization. He has also worked to implement special laws, such as the 1986 "amnesty" (The Immigration Reform and Control Act), and the 1998 Haitian reform act (The Haitian Refugee Immigration Fairness Act). Mr. Baldwin is the author of Immigration News Monthly. He can be rached by e-mail at Carl.Baldwin@immigrationnewsmonthly.com.

He has written a book on immigration law, called "Immigration Questions and Answers," 1997, Allworth Press, 10 East 23rd Street, New York, NY 10010 (212) 777-8395. The book, which contains essential background information about how the immigration law works, can be ordered in both an English Edition and a Spanish version from www.amazon.com.



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