§1534 — Title 8 Aliens and Nationality | U.S. Code

Summary

When a court approves an order under section 1533(c)(2), a fast public hearing must be held to decide whether the noncitizen should be removed from the United States as an alien terrorist. The person must get notice of the charges and the time and place of the hearing. The hearing is open to the public. The person has the right to be there, to have a lawyer, and to have a lawyer appointed if they cannot pay. If a lawyer is appointed, the payment rules are the same as for a felony case. A record of everything said and shown at the hearing must be kept. The person can try to present evidence, see the government’s evidence, and cross-examine witnesses, subject to limits for national security. Either side can ask the judge for a subpoena for a witness or documents before the hearing ends. The judge can require the witness to appear anywhere in the United States. If a subpoena would reveal classified information or its source, the judge must tell the Department of Justice, which may oppose it. If the person cannot pay witness costs, the judge may order government funds to pay them. Subpoenaed witnesses get the same fees as in civil federal court. This process does not give the person access to classified information. The government may use intelligence gathered under the Foreign Intelligence Surveillance Act and other national-security information, and it need not follow certain FISA disclosure rules if saying more would harm national security. The person cannot try to suppress evidence on the ground it was obtained unlawfully in these proceedings. The Attorney General can seek protective orders and claim privileges to keep classified information secret. The judge will review any classified evidence in private. The government must provide an unclassified summary of classified evidence. The judge has 15 days to approve that summary. If the summary is not approved, the government has 15 days to fix it. If it still fails, the hearing ends unless the judge finds the person’s presence would likely cause serious harm to national security or people and that giving a summary would also cause such harm. If the judge makes that finding, special procedures apply, including designating a special attorney to review classified material for the person; that attorney may not share the classified information with the person or the person’s lawyers, and unlawful disclosure is punishable by a fine and 10 to 25 years in prison. The government must prove by a preponderance of the evidence that the person is removable as an alien terrorist. The federal rules of evidence do not apply. If the judge finds removal is justified, the judge must order removal and detention pending removal, and must write a decision stating the facts and legal conclusions. Any part of the decision that would reveal classified material must be kept secret. The judge cannot grant asylum, withholding of removal, cancellation of removal, voluntary departure, adjustment of status, or registry in these proceedings. The Attorney General had to report to Congress within 3 months from December 28, 2001 about how these proceedings work and why they were or were not used before and after the USA PATRIOT Act of 2001.

Title 8, §1534

Aliens and Nationality — Source: USLM XML via OLRC

(a)(1)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)The removal hearing shall be open to the public.

(b)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)(1)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)Subject to the limitations in subsection (e), the alien shall have a reasonable opportunity to introduce evidence on the alien’s own behalf.

(3)Subject to the limitations in subsection (e), the alien shall have a reasonable opportunity to examine the evidence against the alien and to cross-examine any witness.

(4)A verbatim record of the proceedings and of all testimony and evidence offered or produced at such a hearing shall be kept.

(5)The decision of the judge regarding removal shall be based only on that evidence introduced at the removal hearing.

(d)(1)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)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.

(3)A subpoena under this subsection may be served anywhere in the United States.

(4)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)Nothing in this subsection is intended to allow an alien to have access to classified information.

(e)(1)For purposes of this subchapter—

(A)the Government is authorized to use in a removal proceedings 11 So in original. Probably should be “proceeding”. 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;

(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)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)(A)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)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)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)(i)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)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)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)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)(i)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)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)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)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)The Federal Rules of Evidence shall not apply in a removal hearing.

(i)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)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) shall not be made available to the alien or the public.

(k)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 22 So in original. The word “by” probably should not appear. withholding of removal under section 1231(b)(3) of this title;

(3)cancellation of removal under section 1229b of this title;

(4)voluntary departure under section 1254a(e) 33 See References in Text note below. of this title;

(5)adjustment of status under section 1255 of this title; or

(6)registry under section 1259 of this title.

(l)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).

Notes & Related Subsidiaries

Editorial Notes

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, which is classified principally to chapter 36 (§ 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, § 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 Act of 2001 or the USA PATRIOT Act. 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, § 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, § 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, § 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, § 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, § 354(a)(1)(B), added cl. (iii). Subsec. (e)(3)(E), (F). Pub. L. 104–208, § 354(a)(2), added subpars. (E) and (F). Subsec. (f). Pub. L. 104–208, § 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, § 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) shall not be made available to the alien or the public.” Subsec. (k)(2). Pub. L. 104–208, § 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, § 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, § 357, added par. (4) and redesignated former pars. (4) and (5) as (5) and (6), respectively.

Statutory Notes and Related Subsidiaries

Effective Date

of 1996 AmendmentAmendment 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 section 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.

§1534 Removal Hearing

Summary

Title 8, §1534

Notes & Related Subsidiaries

Editorial Notes

References in Text

Short Title

Short Title

Amendments

Statutory Notes and Related Subsidiaries

Effective Date

Transfer of Functions

Transfer of Functions

Citations & Metadata