8 USC 1537 - Custody and release after removal hearing

Collapse to view only § 1537. Custody and release after removal hearing

§ 1531. Definitions
§ 1532. Establishment of removal court
§ 1533. Removal court procedure
§ 1534. Removal hearing
§ 1535. Appeals
§ 1536. Custody and release pending removal hearing
§ 1537. Custody and release after removal hearing

§ 1531. Definitions

As used in this subchapter—

(1) the term “alien terrorist” means any alien described in section 1227(a)(4)(B) of this title;

(2) the term “classified information” has the same meaning as in section 1(a) of the Classified Information Procedures Act (18 U.S.C. App.);

(3) the term “national security” has the same meaning as in section 1(b) of the Classified Information Procedures Act (18 U.S.C. App.);

(4) the term “removal court” means the court described in section 1532 of this title;

(5) the term “removal hearing” means the hearing described in section 1534 of this title;

(6) the term “removal proceeding” means a proceeding under this subchapter; and

(7) the term “special attorney” means an attorney who is on the panel established under section 1532(e) of this title.

(June 27, 1952, ch. 477, title V, § 501, as added Pub. L. 104–132, title IV, § 401(a), Apr. 24, 1996, 110 Stat. 1258; amended Pub. L. 104–208, div. C, title III, §§ 308(g)(1), 354(a)(5), Sept. 30, 1996, 110 Stat. 3009–622, 3009–643.)

§ 1532. Establishment of removal court

(a) Designation of judges

(b) Terms

Each judge designated under subsection (a) shall serve for a term of 5 years and shall be eligible for redesignation, except that of the members first designated—

(1) 1 member shall serve for a term of 1 year;

(2) 1 member shall serve for a term of 2 years;

(3) 1 member shall serve for a term of 3 years; and

(4) 1 member shall serve for a term of 4 years.

(1) Designation

(2) Responsibilities

The chief judge shall—

(A) promulgate rules to facilitate the functioning of the removal court; and

(B) assign the consideration of cases to the various judges on the removal court.

(d) Expeditious and confidential nature of proceedings

(e) Establishment of panel of special attorneys

The removal court shall provide for the designation of a panel of attorneys each of whom—

(1) has a security clearance which affords the attorney access to classified information, and

(2) has agreed to represent permanent resident aliens with respect to classified information under section 1534(e)(3) of this title in accordance with (and subject to the penalties under) this subchapter.

(June 27, 1952, ch. 477, title V, § 502, as added Pub. L. 104–132, title IV, § 401(a), Apr. 24, 1996, 110 Stat. 1259; amended Pub. L. 104–208, div. C, title III, § 354(a)(4), Sept. 30, 1996, 110 Stat. 3009–643.)

§ 1533. Removal court procedure

(a) Application

(1) In generalIn any case in which the Attorney General has classified information that an alien is an alien terrorist, the Attorney General may seek removal of the alien under this subchapter by filing an application with the removal court that contains—

(A) the identity of the attorney in the Department of Justice making the application;

(B) a certification by the Attorney General or the Deputy Attorney General that the application satisfies the criteria and requirements of this section;

(D) a statement of the facts and circumstances relied on by the Department of Justice to establish probable cause that—

(i) the alien is an alien terrorist;

(ii) the alien is physically present in the United States; and

(iii) with respect to such alien, removal under subchapter II would pose a risk to the national security of the United States.

(2) Filing

(b) Right to dismiss

(1) Basis for decisionIn determining whether to grant an application under this section, a single judge of the removal court may consider, ex parte and in camera, in addition to the information contained in the application—

(A) other information, including classified information, presented under oath or affirmation; and

(B) testimony received in any hearing on the application, of which a verbatim record shall be kept.

(2) Approval of orderThe judge shall issue an order granting the application, if the judge finds that there is probable cause to believe that—

(A) the alien who is the subject of the application has been correctly identified and is an alien terrorist present in the United States; and

(B) removal under subchapter II would pose a risk to the national security of the United States.

(3) Denial of order

(d) Exclusive provisions

(June 27, 1952, ch. 477, title V, § 503, as added Pub. L. 104–132, title IV, § 401(a), Apr. 24, 1996, 110 Stat. 1259.)

§ 1534. Removal hearing

(a) In general

(1) Expeditious hearing

(2) Public hearing

(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.

(1) Right of counsel

(2) Introduction of evidence

(3) Examination of witnesses

(4) Record

(5) Removal decision based on evidence at hearing

(d) Subpoenas

(1) Request

(2) Payment for attendance

(3) Nationwide service

(4) Witness fees

(5) No 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

1 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) Protective orders

(3) Treatment of classified information

(A) Use

(B) Submission

(D) Disapproval

(i) In general

(ii) Revised summary

(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

(g) Burden of proof

(h) Rules of evidence

(i) Determination of deportation

(j) Written order

(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

2 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) 3

3 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) Report on terrorist removal proceedings

(June 27, 1952, ch. 477, title V, § 504, as added Pub. L. 104–132, title IV, § 401(a), Apr. 24, 1996, 110 Stat. 1260; amended Pub. L. 104–208, div. C, title III, §§ 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, § 313, Dec. 28, 2001, 115 Stat. 1401.)

§ 1535. Appeals

(a) Appeal of denial of application for removal proceedings

(1) In general

(2) Record on appeal

(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

(1) In general

(2) Automatic appeals in cases of permanent resident aliens in which no summary provided

(A) In general

(B) Use of special attorney

(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;

(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

1 So in original. Probably should be section “1534(e)(3)”.

of this title, the Court of Appeals shall review questions of fact de novo.

(d) Certiorari

(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

(June 27, 1952, ch. 477, title V, § 505, as added Pub. L. 104–132, title IV, § 401(a), Apr. 24, 1996, 110 Stat. 1263; amended Pub. L. 104–208, div. C, title III, § 354(a)(3), Sept. 30, 1996, 110 Stat. 3009–642.)

§ 1536. Custody and release pending removal hearing

(a) Upon filing application

(1) In general

Subject to paragraphs (2) and (3), the Attorney General may—

(A) take into custody any alien with respect to whom an application under section 1533 of this title has been filed; and

(B) retain such an alien in custody in accordance with the procedures authorized by this subchapter.

(2) Special rules for permanent resident aliens

(A) Release hearing

An alien lawfully admitted for permanent residence shall be entitled to a release hearing before the judge assigned to hear the removal hearing. Such an alien shall be detained pending the removal hearing, unless the alien demonstrates to the court that the alien—

(i) is a person lawfully admitted for permanent residence in the United States;

(ii) if released upon such terms and conditions as the court may prescribe (including the posting of any monetary amount), is not likely to flee; and

(iii) will not endanger national security, or the safety of any person or the community, if released.

(B) Information considered

(3) Release if order denied and no review sought

(A) In general

(B) Application of regular procedures

(b) Conditional release if order denied and review sought

(1) In general

If a judge of the removal court denies the order sought in an application filed pursuant to section 1533 of this title and the Attorney General seeks review of such denial, the judge shall release the alien from custody subject to the least restrictive condition, or combination of conditions, of release described in section 3142(b) and clauses (i) through (xiv) of section 3142(c)(1)(B) of title 18 that—

(A) will reasonably assure the appearance of the alien at any future proceeding pursuant to this subchapter; and

(B) will not endanger the safety of any other person or the community.

(2) No release for certain aliens

(June 27, 1952, ch. 477, title V, § 506, as added Pub. L. 104–132, title IV, § 401(a), Apr. 24, 1996, 110 Stat. 1265.)

§ 1537. Custody and release after removal hearing

(a) Release

(1) In general

(2) Custody pending appeal

(b) Custody and removal

(1) Custody

(2) Removal

(A) In general

(B) Alternate countries

(D) Fingerprinting

(1) Delay in removal

(2) Maintenance of custody

(3) Subsequent removal

(d) Application of certain provisions relating to escape of prisoners

(e) Rights of aliens in custody

(1) Family and attorney visits

(2) Diplomatic contact

(June 27, 1952, ch. 477, title V, § 507, as added Pub. L. 104–132, title IV, § 401(a), Apr. 24, 1996, 110 Stat. 1266; amended Pub. L. 104–208, div. C, title III, § 308(d)(4)(Q), Sept. 30, 1996, 110 Stat. 3009–619.)