[Congressional Bills 106th Congress]
[From the U.S. Government Publishing Office]
[S. 3139 Introduced in Senate (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.
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