[Congressional Bills 107th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1266 Introduced in House (IH)]







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 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 
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 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 proceedings 
        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 CLASSIFIED 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 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 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 
                        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 CIPA (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) Appointment of Counsel.--In any immigration 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 appointed as described in section 3006A of title 18, United States 
Code.
    ``(f) 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.
    ``(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 `presiding 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 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.''.
    (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 BOND PROCEEDINGS AND 
              JUDICIAL REVIEW OF BOND DETERMINATIONS.

    (a) Aliens' Rights 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.--Subject 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 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) a complete record shall be kept of all testimony and 
        evidence produced at the proceeding.''.
    (b) Judicial Review.--Section 236(e) of the Immigration and 
Nationality Act (8 U.S.C. 1226(e)) is amended to read as follows:
    ``(e) Judicial Review.--Notwithstanding any other provision of law, 
any alien against whom an order concerning 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 Attorney 
General is acting in violation of the laws or Constitution of the 
United States, or is not proceeding with such reasonable dispatch as 
may be warranted by the particular 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 inadmissible 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 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;
            (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;
            (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 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;
            (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;
            (3) initiate proceedings under section 295, if applicable; 
        or
            (4) 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) and proceedings under section 295, if applicable.

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.
                                 <all>