ILW.COM - H.R. 2121

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.

Mr. BONIOR (for himself and Mr. CAMPBELL, Mr. BARR of Georgia, and Mr. CONYERS) introduced the following bill; which was referred to the Committee on the Judiciary

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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,

(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.

(a) REPEAL- Title V of the Immigration and Nationality Act (8 U.S.C. 1531-1537) is repealed.

(b) CLERICAL AMENDMENT- The table of contents for such Act is amended by striking the title heading, and the items, relating to title V.

(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. 5. REPEAL OF USE OF SECRET EVIDENCE TO DENY AFFIRMATIVE APPLICATIONS FOR IMMIGRATION BENEFITS.

(a) IN GENERAL- Title I of the Immigration and Nationality Act is amended by adding at the end the following:

`SEC. 106. REPEAL OF USE OF SECRET EVIDENCE TO DENY AFFIRMATIVE APPLICATIONS FOR IMMIGRATION BENEFITS.

`No decision on any immigration benefit (including the granting of asylum, the withholding of deportation or removal, adjustment of status, naturalization, or the granting of temporary protected status) shall be made on the basis of any evidence not shared with the applicant.'.

(b) CLERICAL AMENDMENT- The table of sections for such Act is amended by adding at the end of the items relating to title I the following new item:

`Sec. 106. Repeal of use of secret evidence to deny affirmative applications for immigration benefits.'.

SEC. 6. REPEAL OF USE OF SECRET EVIDENCE IN BOND PROCEEDINGS AND JUDICIAL REVIEW OF BOND DETERMINATIONS.

(a) 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.'.

(b) 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:

`(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. 7. 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'.

(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

(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

(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

(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).

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.

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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