§ 1535. — Appeals.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 8USC1535]
TITLE 8--ALIENS AND NATIONALITY
CHAPTER 12--IMMIGRATION AND NATIONALITY
SUBCHAPTER V--ALIEN TERRORIST REMOVAL PROCEDURES
Sec. 1535. Appeals
(a) Appeal of denial of application for removal proceedings
(1) In general
The Attorney General may seek a review of the denial of an order
sought in an application filed pursuant to section 1533 of this
title. The appeal shall be filed in the United States Court of
Appeals for the District of Columbia Circuit by notice of appeal
filed not later than 20 days after the date of such denial.
(2) Record on appeal
The entire record of the proceeding shall be transmitted to the
Court of Appeals under seal, and the Court of Appeals shall hear the
matter ex parte.
(3) Standard of review
The Court of Appeals shall--
(A) review questions of law de novo; and
(B) set aside a finding of fact only if such finding was
clearly erroneous.
(b) Appeal of determination regarding summary of classified information
(1) In general
The United States may take an interlocutory appeal to the United
States Court of Appeals for the District of Columbia Circuit of--
(A) any determination by the judge pursuant to section
1534(e)(3) of this title; or
(B) the refusal of the court to make the findings permitted
by section 1534(e)(3) of this title.
(2) Record
In any interlocutory appeal taken pursuant to this subsection,
the entire record, including any proposed order of the judge, any
classified information and the summary of evidence, shall be
transmitted to the Court of Appeals. The classified information
shall be transmitted under seal. A verbatim record of such appeal
shall be kept under seal in the event of any other judicial review.
(c) Appeal of decision in hearing
(1) In general
Subject to paragraph (2), the decision of the judge after a
removal hearing may be appealed by either the alien or the Attorney
General to the United States Court of Appeals for the District of
Columbia Circuit by notice of appeal filed not later than 20 days
after the date on which the order is issued. The order shall not be
enforced during the pendency of an appeal under this subsection.
(2) Automatic appeals in cases of permanent resident aliens
in which no summary provided
(A) In general
Unless the alien waives the right to a review under this
paragraph, in any case involving an alien lawfully admitted for
permanent residence who is denied a written summary of
classified information under section 1534(e)(3) of this title
and with respect to which the procedures described in section
1534(e)(3)(F) of this title apply, any order issued by the judge
shall be reviewed by the Court of Appeals for the District of
Columbia Circuit.
(B) Use of special attorney
With respect to any issue relating to classified information
that arises in such review, the alien shall be represented only
by the special attorney designated under section
1534(e)(3)(F)(i) of this title on behalf of the alien.
(3) Transmittal of record
In an appeal or review to the Court of Appeals pursuant to this
subsection--
(A) the entire record shall be transmitted to the Court of
Appeals; and
(B) information received in camera and ex parte, and any
portion of the order that would reveal the substance or source
of such information, shall be transmitted under seal.
(4) Expedited appellate proceeding
In an appeal or review to the Court of Appeals under this
subsection--
(A) the appeal or review shall be heard as expeditiously as
practicable and the court may dispense with full briefing and
hear the matter solely on the record of the judge of the removal
court and on such briefs or motions as the court may require to
be filed by the parties;
(B) the Court of Appeals shall issue an opinion not later
than 60 days after the date of the issuance of the final order
of the district court;
(C) the court shall review all questions of law de novo; and
(D) a finding of fact shall be accorded deference by the
reviewing court and shall not be set aside unless such finding
was clearly erroneous, except that in the case of a review under
paragraph (2) in which an alien lawfully admitted for permanent
residence was denied a written summary of classified information
under section 1534(c)(3) \1\ of this title, the Court of Appeals
shall review questions of fact de novo.
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\1\ So in original. Probably should be section ``1534(e)(3)''.
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(d) Certiorari
Following a decision by the Court of Appeals pursuant to subsection
(c) of this section, the alien or the Attorney General may petition the
Supreme Court for a writ of certiorari. In any such case, any
information transmitted to the Court of Appeals under seal shall, if
such information is also submitted to the Supreme Court, be transmitted
under seal. Any order of removal shall not be stayed pending disposition
of a writ of certiorari, except as provided by the Court of Appeals or a
Justice of the Supreme Court.
(e) Appeal of detention order
(1) In general
Sections 3145 through 3148 of title 18 pertaining to review and
appeal of a release or detention order, penalties for failure to
appear, penalties for an offense committed while on release, and
sanctions for violation of a release condition shall apply to an
alien to whom section 1537(b)(1) of this title applies. In applying
the previous sentence--
(A) for purposes of section 3145 of such title an appeal
shall be taken to the United States Court of Appeals for the
District of Columbia Circuit; and
(B) for purposes of section 3146 of such title the alien
shall be considered released in connection with a charge of an
offense punishable by life imprisonment.
(2) No review of continued detention
The determinations and actions of the Attorney General pursuant
to section 1537(b)(2)(C) of this title shall not be subject to
judicial review, including application for a writ of habeas corpus,
except for a claim by the alien that continued detention violates
the alien's rights under the Constitution. Jurisdiction over any
such challenge shall lie exclusively in the United States Court of
Appeals for the District of Columbia Circuit.
(June 27, 1952, ch. 477, title V, Sec. 505, as added Pub. L. 104-132,
title IV, Sec. 401(a), Apr. 24, 1996, 110 Stat. 1263; amended Pub. L.
104-208, div. C, title III, Sec. 354(a)(3), Sept. 30, 1996, 110 Stat.
3009-642.)
Amendments
1996--Subsec. (c)(1). Pub. L. 104-208, Sec. 354(a)(3)(A),
substituted ``Subject to paragraph (2), the decision'' for ``The
decision''.
Subsec. (c)(2). Pub. L. 104-208, Sec. 354(a)(3)(D), added par. (2).
Former par. (2) redesignated (3).
Subsec. (c)(3). Pub. L. 104-208, Sec. 354(a)(3)(C), redesignated
par. (2) as (3). Former par. (3) redesignated (4).
Subsec. (c)(3)(D). Pub. L. 104-208, Sec. 354(a)(3)(B), inserted
before period at end ``, except that in the case of a review under
paragraph (2) in which an alien lawfully admitted for permanent
residence was denied a written summary of classified information under
section 1534(c)(3) of this title, the Court of Appeals shall review
questions of fact de novo''.
Subsec. (c)(4). Pub. L. 104-208, Sec. 354(a)(3)(C), redesignated
par. (3) as (4).
Effective Date of 1996 Amendment
Amendment by 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.
References to Order of Removal Deemed To Include Order of Exclusion and
Deportation
For purposes of carrying out this chapter, any reference in law to
an order of removal is deemed to include a reference to an order of
exclusion and deportation or an order of deportation, see section
309(d)(2) of Pub. L. 104-208, set out in an Effective Date of 1996
Amendments note under section 1101 of this title.
