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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.'.
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.
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.
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