§ 1534. — Removal hearing.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 8USC1534]
TITLE 8--ALIENS AND NATIONALITY
CHAPTER 12--IMMIGRATION AND NATIONALITY
SUBCHAPTER V--ALIEN TERRORIST REMOVAL PROCEDURES
Sec. 1534. Removal hearing
(a) In general
(1) Expeditious hearing
In any case in which an application for an order is approved
under section 1533(c)(2) of this title, a removal hearing shall be
conducted under this section as expeditiously as practicable for the
purpose of determining whether the alien to whom the order pertains
should be removed from the United States on the grounds that the
alien is an alien terrorist.
(2) Public hearing
The removal hearing shall be open to the public.
(b) Notice
An alien who is the subject of a removal hearing under this
subchapter shall be given reasonable notice of--
(1) the nature of the charges against the alien, including a
general account of the basis for the charges; and
(2) the time and place at which the hearing will be held.
(c) Rights in hearing
(1) Right of counsel
The alien shall have a right to be present at such hearing and
to be represented by counsel. Any alien financially unable to obtain
counsel shall be entitled to have counsel assigned to represent the
alien. Such counsel shall be appointed by the judge pursuant to the
plan for furnishing representation for any person financially unable
to obtain adequate representation for the district in which the
hearing is conducted, as provided for in section 3006A of title 18.
All provisions of that section shall apply and, for purposes of
determining the maximum amount of compensation, the matter shall be
treated as if a felony was charged.
(2) Introduction of evidence
Subject to the limitations in subsection (e) of this section,
the alien shall have a reasonable opportunity to introduce evidence
on the alien's own behalf.
(3) Examination of witnesses
Subject to the limitations in subsection (e) of this section,
the alien shall have a reasonable opportunity to examine the
evidence against the alien and to cross-examine any witness.
(4) Record
A verbatim record of the proceedings and of all testimony and
evidence offered or produced at such a hearing shall be kept.
(5) Removal decision based on evidence at hearing
The decision of the judge regarding removal shall be based only
on that evidence introduced at the removal hearing.
(d) Subpoenas
(1) Request
At any time prior to the conclusion of the removal hearing,
either the alien or the Department of Justice may request the judge
to issue a subpoena for the presence of a named witness (which
subpoena may also command the person to whom it is directed to
produce books, papers, documents, or other objects designated
therein) upon a satisfactory showing that the presence of the
witness is necessary for the determination of any material matter.
Such a request may be made ex parte except that the judge shall
inform the Department of Justice of any request for a subpoena by
the alien for a witness or material if compliance with such a
subpoena would reveal classified evidence or the source of that
evidence. The Department of Justice shall be given a reasonable
opportunity to oppose the issuance of such a subpoena.
(2) Payment for attendance
If an application for a subpoena by the alien also makes a
showing that the alien is financially unable to pay for the
attendance of a witness so requested, the court may order the costs
incurred by the process and the fees of the witness so subpoenaed to
be paid from funds appropriated for the enforcement of subchapter II
of this chapter.
(3) Nationwide service
A subpoena under this subsection may be served anywhere in the
United States.
(4) Witness fees
A witness subpoenaed under this subsection shall receive the
same fees and expenses as a witness subpoenaed in connection with a
civil proceeding in a court of the United States.
(5) No access to classified information
Nothing in this subsection is intended to allow an alien to have
access to classified information.
(e) Discovery
(1) In general
For purposes of this subchapter--
(A) the Government is authorized to use in a removal
proceedings \1\ the fruits of electronic surveillance and
unconsented physical searches authorized under the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.)
without regard to subsections (c), (e), (f), (g), and (h) of
section 106 of that Act [50 U.S.C. 1806(c), (e), (f), (g), (h)]
and discovery of information derived pursuant to such Act, or
otherwise collected for national security purposes, shall not be
authorized if disclosure would present a risk to the national
security of the United States;
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\1\ So in original. Probably should be ``proceeding''.
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(B) an alien subject to removal under this subchapter shall
not be entitled to suppress evidence that the alien alleges was
unlawfully obtained; and
(C) section 3504 of title 18 and section 1806(c) of title 50
shall not apply if the Attorney General determines that public
disclosure would pose a risk to the national security of the
United States because it would disclose classified information
or otherwise threaten the integrity of a pending investigation.
(2) Protective orders
Nothing in this subchapter shall prevent the United States from
seeking protective orders and from asserting privileges ordinarily
available to the United States to protect against the disclosure of
classified information, including the invocation of the military and
State secrets privileges.
(3) Treatment of classified information
(A) Use
The judge shall examine, ex parte and in camera, any
evidence for which the Attorney General determines that public
disclosure would pose a risk to the national security of the
United States or to the security of any individual because it
would disclose classified information and neither the alien nor
the public shall be informed of such evidence or its sources
other than through reference to the summary provided pursuant to
this paragraph. Notwithstanding the previous sentence, the
Department of Justice may, in its discretion and, in the case of
classified information, after coordination with the originating
agency, elect to introduce such evidence in open session.
(B) Submission
With respect to such information, the Government shall
submit to the removal court an unclassified summary of the
specific evidence that does not pose that risk.
(C) Approval
Not later than 15 days after submission, the judge shall
approve the summary if the judge finds that it is sufficient to
enable the alien to prepare a defense. The Government shall
deliver to the alien a copy of the unclassified summary approved
under this subparagraph.
(D) Disapproval
(i) In general
If an unclassified summary is not approved by the
removal court under subparagraph (C), the Government shall
be afforded 15 days to correct the deficiencies identified
by the court and submit a revised unclassified summary.
(ii) Revised summary
If the revised unclassified summary is not approved by
the court within 15 days of its submission pursuant to
subparagraph (C), the removal hearing shall be terminated
unless the judge makes the findings under clause (iii).
(iii) Findings
The findings described in this clause are, with respect
to an alien, that--
(I) the continued presence of the alien in the
United States would likely cause serious and irreparable
harm to the national security or death or serious bodily
injury to any person, and
(II) the provision of the summary would likely cause
serious and irreparable harm to the national security or
death or serious bodily injury to any person.
(E) Continuation of hearing without summary
If a judge makes the findings described in subparagraph
(D)(iii)--
(i) if the alien involved is an alien lawfully admitted
for permanent residence, the procedures described in
subparagraph (F) shall apply; and
(ii) in all cases the special removal hearing shall
continue, the Department of Justice shall cause to be
delivered to the alien a statement that no summary is
possible, and the classified information submitted in camera
and ex parte may be used pursuant to this paragraph.
(F) Special procedures for access and challenges to classified
information by special attorneys in case of lawful
permanent aliens
(i) In general
The procedures described in this subparagraph are that
the judge (under rules of the removal court) shall designate
a special attorney to assist the alien--
(I) by reviewing in camera the classified
information on behalf of the alien, and
(II) by challenging through an in camera proceeding
the veracity of the evidence contained in the classified
information.
(ii) Restrictions on disclosure
A special attorney receiving classified information
under clause (i)--
(I) shall not disclose the information to the alien
or to any other attorney representing the alien, and
(II) who discloses such information in violation of
subclause (I) shall be subject to a fine under title 18,
imprisoned for not less than 10 years nor more than 25
years, or both.
(f) Arguments
Following the receipt of evidence, the Government and the alien
shall be given fair opportunity to present argument as to whether the
evidence is sufficient to justify the removal of the alien. The
Government shall open the argument. The alien shall be permitted to
reply. The Government shall then be permitted to reply in rebuttal. The
judge may allow any part of the argument that refers to evidence
received in camera and ex parte to be heard in camera and ex parte.
(g) Burden of proof
In the hearing, it is the Government's burden to prove, by the
preponderance of the evidence, that the alien is subject to removal
because the alien is an alien terrorist.
(h) Rules of evidence
The Federal Rules of Evidence shall not apply in a removal hearing.
(i) Determination of deportation
If the judge, after considering the evidence on the record as a
whole, finds that the Government has met its burden, the judge shall
order the alien removed and detained pending removal from the United
States. If the alien was released pending the removal hearing, the judge
shall order the Attorney General to take the alien into custody.
(j) Written order
At the time of issuing a decision as to whether the alien shall be
removed, the judge shall prepare a written order containing a statement
of facts found and conclusions of law. Any portion of the order that
would reveal the substance or source of information received in camera
and ex parte pursuant to subsection (e) of this section shall not be
made available to the alien or the public.
(k) No right to ancillary relief
At no time shall the judge consider or provide for relief from
removal based on--
(1) asylum under section 1158 of this title;
(2) by \2\ withholding of removal under section 1231(b)(3) of
this title;
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\2\ So in original. The word ``by'' probably should not appear.
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(3) cancellation of removal under section 1229b of this title;
(4) voluntary departure under section 1254a(e) \3\ of this
title;
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\3\ See References in Text note below.
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(5) adjustment of status under section 1255 of this title; or
(6) registry under section 1259 of this title.
(l) Report on terrorist removal proceedings
Not later than 3 months from December 28, 2001, the Attorney General
shall submit to Congress a report concerning the effect and efficacy of
alien terrorist removal proceedings, including the reasons why
proceedings pursuant to this section have not been used by the Attorney
General in the past and the effect on the use of these proceedings after
the enactment of the USA PATRIOT Act of 2001 (Public Law 107-56).
(June 27, 1952, ch. 477, title V, Sec. 504, as added Pub. L. 104-132,
title IV, Sec. 401(a), Apr. 24, 1996, 110 Stat. 1260; amended Pub. L.
104-208, div. C, title III, Secs. 308(g)(7)(B), (8)(B), 354(a)(1), (2),
(b), 357, Sept. 30, 1996, 110 Stat. 3009-623, 3009-624, 3009-641 to
3009-644; Pub. L. 107-108, title III, Sec. 313, Dec. 28, 2001, 115 Stat.
1401.)
References in Text
The Foreign Intelligence Surveillance Act of 1978, referred to in
subsec. (e)(1)(A), is Pub. L. 95-511, Oct. 25, 1978, 92 Stat. 1783, as
amended, which is classified principally to chapter 36 (Sec. 1801 et
seq.) of Title 50, War and National Defense. For complete classification
of this Act to the Code, see Short Title note set out under section 1801
of Title 50 and Tables.
The Federal Rules of Evidence, referred to in subsec. (h), are set
out in the Appendix to Title 28, Judiciary and Judicial Procedure.
Section 1254a(e) of this title, referred to in subsec. (k)(4), was
in the original a reference to ``section 244(e)'', meaning section
244(e) of act June 27, 1952, which was classified to section 1254(e) of
this title. Pub. L. 104-208, div. C, title III, Sec. 308(b)(7), Sept.
30, 1996, 110 Stat. 3009-615, repealed section 244 and renumbered
section 244A as section 244, which is classified to section 1254a of
this title. For provisions relating to voluntary departure, see section
1229c of this title.
The USA PATRIOT Act of 2001, referred to in subsec. (l), is Pub. L.
107-56, Oct. 26, 2001, 115 Stat. 272, known as the Uniting and
Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001. For
complete classification of this Act to the Code, see Short Title of 2001
Amendment note set out under section 1 of Title 18, Crimes and Criminal
Procedure, and Tables.
Amendments
2001--Subsec. (l). Pub. L. 107-108 added subsec. (l).
1996--Subsec. (e)(1)(A). Pub. L. 104-208, Sec. 354(b)(1)(A)(ii),
substituted ``pursuant to such Act'' for ``pursuant to the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.)''.
Pub. L. 104-208, Sec. 354(b)(1)(A)(i), inserted ``the Government is
authorized to use in a removal proceedings the fruits of electronic
surveillance and unconsented physical searches authorized under the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.)
without regard to subsections (c), (e), (f), (g), and (h) of section 106
of that Act and'' before ``discovery of information''.
Subsec. (e)(3)(A). Pub. L. 104-208, Sec. 354(b)(1)(B), substituted
``and neither the alien nor the public shall be informed of such
evidence or its sources other than through reference to the summary
provided pursuant to this paragraph. Notwithstanding the previous
sentence, the Department of Justice may, in its discretion and, in the
case of classified information, after coordination with the originating
agency, elect to introduce such evidence in open session.'' for period
at end.
Subsec. (e)(3)(D)(ii). Pub. L. 104-208, Sec. 354(a)(1)(A), inserted
``unless the judge makes the findings under clause (iii)'' before period
at end.
Subsec. (e)(3)(D)(iii). Pub. L. 104-208, Sec. 354(a)(1)(B), added
cl. (iii).
Subsec. (e)(3)(E), (F). Pub. L. 104-208, Sec. 354(a)(2), added
subpars. (E) and (F).
Subsec. (f). Pub. L. 104-208, Sec. 354(b)(2), inserted at end ``The
judge may allow any part of the argument that refers to evidence
received in camera and ex parte to be heard in camera and ex parte.''
Subsec. (j). Pub. L. 104-208, Sec. 354(b)(3), inserted at end ``Any
portion of the order that would reveal the substance or source of
information received in camera and ex parte pursuant to subsection (e)
of this section shall not be made available to the alien or the
public.''
Subsec. (k)(2). Pub. L. 104-208, Sec. 308(g)(7)(B), substituted ``by
withholding of removal under section 1231(b)(3) of this title'' for
``withholding of deportation under section 1253(h) of this title''.
Subsec. (k)(3). Pub. L. 104-208, Sec. 308(g)(8)(B), substituted
``cancellation of removal under section 1229b of this title'' for
``suspension of deportation under subsection (a) or (e) of section 1254
of this title''.
Subsec. (k)(4) to (6). Pub. L. 104-208, Sec. 357, added par. (4) and
redesignated former pars. (4) and (5) as (5) and (6), respectively.
Effective Date of 1996 Amendment
Amendment by section 308(g)(7)(B), (8)(B) of Pub. L. 104-208
effective, with certain transitional provisions, on the first day of the
first month beginning more than 180 days after Sept. 30, 1996, see
section 309 of Pub. L. 104-208, set out as a note under section 1101 of
this title.
Amendment by sections 354(a)(1), (2), (b), and 357 of Pub. L. 104-
208 effective as if included in the enactment of subtitle A of title IV
of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L.
104-132, see section 358 of Pub. L. 104-208, set out as a note under
section 1182 of this title.
Abolition of Immigration and Naturalization Service and Transfer of
Functions
For abolition of Immigration and Naturalization Service, transfer of
functions, and treatment of related references, see note set out under
section 1551 of this title.
Section Referred to in Other Sections
This section is referred to in sections 1531, 1532, 1535 of this
title.
