[Congressional Bills 107th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2113 Introduced in House (IH)]







107th CONGRESS
  1st Session
                                H. R. 2113

    To amend the Immigration and Nationality Act to ensure that no 
    permanent resident alien or alien in the United States with an 
 unexpired visa is removed or otherwise deprived of liberty, based on 
              evidence that is kept secret from the alien.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                              June 7, 2001

 Mr. Rohrabacher introduced the following bill; which was referred to 
                     the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
    To amend the Immigration and Nationality Act to ensure that no 
    permanent resident alien or alien in the United States with an 
 unexpired visa is removed 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 Against Lawful 
Aliens Repeal Act of 2001''.

SEC. 2. FINDINGS.

    The Congress makes the following findings:
            (1) No person physically present in the United States who 
        is a lawful permanent resident alien or other alien with an 
        unexpired visa should be deprived of liberty based on evidence 
        kept secret from that person, including information classified 
        for national security reasons.
            (2) Use of secret evidence in immigration proceedings 
        against lawful aliens deprives such aliens 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 certain immigration proceedings

    ``Sec. 295. (a) Notice of Intended Use of Classified Information.--
            ``(1) In general.--In any immigration proceeding respecting 
        an alien who is lawfully admitted for permanent residence or 
        otherwise present in the United States with an unexpired visa 
        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 
        described in paragraph (1) 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 
        described in subsection (a)(1) 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) Whether the Federal district court 
                        approved the summary of classified information 
                        and the deletions or admissions proffered by 
                        the Attorney General.
                            ``(iv) Whether the alien was ultimately 
                        ordered removed under section 237(a)(4)(B) or 
                        was granted or denied admission.
    ``(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 
described in subsection (a)(1), 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 who 
is lawfully admitted for permanent residence or otherwise present in 
the United States with an unexpired visa 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 is amended by adding at the end the 
        following new section:

``SEC. 508. LIMITATION ON APPLICATION OF TITLE.

    ``This title shall not apply to any alien who is lawfully admitted 
for permanent residence or who is otherwise present in the United 
States with an unexpired visa.''.
            (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 by inserting ``(subject to section 295)'' after 
        ``but''.
            (3) Burden on alien.--The last sentence of section 
        240(c)(2) of such Act (8 U.S.C. 1229a(c)(2)) is amended by 
        inserting ``and for which disclosure is not provided under 
        section 295'' after ``not considered by the Attorney General to 
        be confidential''
    (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 certain immigration 
                            proceedings.''; and
            (2) by adding after the item relating to section 507 the 
        following new item:

``Sec. 508. Limitation on application of title.''.

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 in the case of an alien who is 
lawfully admitted for permanent residence or otherwise present in the 
United States with an unexpired visa--
            ``(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--
            (1) in the first sentence, by inserting ``to an alien who 
        is not a lawful permanent resident or who otherwise has an 
        unexpired visa'' after ``application of this section'';
            (2) in the second sentence, by inserting ``who is not a 
        lawful permanent resident or who otherwise has an unexpired 
        visa'' after ``of any alien''; and
            (3) by adding at the end the following: ``Notwithstanding 
        any other provision of law, any alien who is a lawful permanent 
        resident or who otherwise has an unexpired visa and 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 ALIENS.

    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; or
                            ``(ii) has an unexpired visa.''.

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 who is lawfully admitted for permanent residence or otherwise 
present in the United States with an unexpired visa 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) Termination of Proceedings.--In the case of an alien who is 
lawfully admitted for permanent residence or otherwise in the United 
States with an unexpired visa and who is 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 withholding of deportation or 
removal 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 who are lawful 
permanent residents or who otherwise have an unexpired visa without 
regard to the date of arrival, admission, or entry into the United 
States.
                                 <all>