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S 3139 IS

106th CONGRESS

2d Session

S. 3139

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 SENATE OF THE UNITED STATES

September 28 (legislative day, SEPTEMBER 22), 2000

Mr. ABRAHAM (for himself, Mr. Feingold, and Mr. Kennedy) introduced the following bill; which was read twice and 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.

    Be it enacted by the Senate and House of Representatives 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. APPLICATION OF PROCEDURES USED UNDER CLASSIFIED INFORMATION PROCEDURES ACT (CIPA) TO IMMIGRATION PROCEEDINGS.

    (a) APPLICATION OF PROCEDURES USED UNDER CLASSIFIED INFORMATION PROCEDURES ACT (CIPA) TO IMMIGRATION PROCEEDINGS-
      (1) IN GENERAL- Chapter 9 of title II of such Act 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 CLASSIFIED INFORMATION-
      `(1) IN GENERAL- In any immigration proceeding in which the Attorney General seeks to use classified information, the Attorney General shall inform 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 immigration 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 immigration proceedings and has requested such agency to declassify such information as is permitted to be declassified under the President's Executive Order on classification.
    `(b) REFERRAL OF CLASSIFIED MATTERS TO DISTRICT COURT-
      `(1) IN GENERAL- In the case of an immigration proceeding in which the Attorney General or the alien moves for a referral under this section to consider 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 information 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, except as provided in paragraph (3).
      `(2) SUSPENSION OF IMMIGRATION PROCEEDING- 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 involved (and any appeals related to such matter).
      `(3) SUBMISSION OF SUMMARY- In the case of a referral under paragraph (1)(A), after the application

of subsection (c), the district court shall issue an order to the presiding officer at the proceeding indicating any unclassified summary of classified information, and admissions in lieu of disclosure of classified 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 district court of the use of classified information in an immigration proceeding, the provisions of the Classified 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 proceeding in the same manner as it applies to a defendant in a criminal proceeding subject to such Act.
      `(2) GENERAL RULES OF APPLICATION- In applying such Act under subsection (a), the following general rules apply:
        `(A) Any reference in such Act to--
          `(i) a criminal defendant or a trial (or pre-trial) proceeding is deemed to be a reference to the alien who is the subject of the immigration proceeding and to the immigration 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 termination of the immigration proceeding against an alien; and
          `(iv) a trial court is deemed a reference (in the case of an administrative immigration proceeding) to the presiding officer in such proceeding.
        `(B) The provisions of section 2 of such Act (other than the last sentence) shall not be applied.
        `(C) The Attorney General shall prescribe rules establishing procedures for the protection against unauthorized disclosure of classified information in the custody of the Federal non-judicial 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 applied 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 Committees on the Judiciary of the Senate and the House of Representatives on the implementation 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 outside 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 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 Attorney 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 construed as preventing an alien in an immigration proceeding 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 `immigration proceeding' means any administrative proceeding under this Act.
      `(2) PRESIDING OFFICER- The term `presiding officer' means, with respect to an immigration

proceeding, the administrative or judicial official who is presiding over the immigration proceeding.'.

    (b) CONFORMING AMENDMENT- Title V of the Immigration and Nationality Act (8 U.S.C. 1531-1537) is repealed.

    (c) CLERICAL AMENDMENTS- The table of contents for such Act 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. 3. 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) the alien shall have a reasonable opportunity 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'.
    (b) 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 following:
      `In meeting the burden of proof under subparagraph (B), 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. 4. 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 following:

    `(f) ALIENS' RIGHTS IN BOND PROCEEDINGS- 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 opportunity 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 testimony and evidence produced at the proceeding.'.

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 by striking `If' and inserting: `Except in the case of 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, if'.

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 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 redetermination of bond (or a reconsideration of the terms of custody, as the case may be) based on evidence disclosed to the alien and the alien's response to such evidence; or
      (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 detained; 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 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 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 a reasonable opportunity to respond to such information, 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

          (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 effective date of this Act without prejudice to the Attorney General or the alien; and
          (2) the Attorney General may, in his or her discretion, commence de novo removal proceedings within 10 days thereafter under section 240 of the Immigration and Nationality Act (8 U.S.C. 1229a).

      SEC. 7. REGULATIONS.

        The Attorney General shall promulgate regulations, including 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. 8. 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.

      END


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