8 U.S.C. § 1534 : US Code - Section 1534: Removal hearing

Search 8 U.S.C. § 1534 : US Code - Section 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;
(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;
(3) cancellation of removal under section 1229b of this title;
(4) voluntary departure under section 1254a(e) (!3) of this
title;
(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).