
From the U.S. Code Online via GPO Access
[wais.access.gpo.gov]
[Laws in effect as of January 2, 2001]
[Document affected by Public Law 107-108 Section 313]
[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.

(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.)

                       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.


                               Amendments

    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.

                  Section Referred to in Other Sections

    This section is referred to in sections 1531, 1532, 1535 of this 
title.
