8 U.S.C. § 1535 — Appeals

submitted 74 years ago by Pub. L. 104-132 to r/title-8-ALIENS-AND-NATIONALITY · 999 words · no verdicts yet

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The Attorney General, the United States, and an alien may appeal specified removal-court decisions to the D.C. Circuit under expedited and sometimes sealed procedures. The alien or Attorney General may seek Supreme Court review, while detention appeals follow specified criminal-release rules.

(a) The Attorney General may appeal denial of a section 1533 application to the D.C. Circuit within 20 days. The entire record goes under seal and the court hears it ex parte. Legal questions are reviewed anew; factual findings are overturned only if clearly erroneous. (b) The United States may take an immediate appeal to that court from a judge’s decision about a classified-information summary or refusal to make the allowed serious-harm findings. The entire record, proposed order, classified information, and summary go to the appellate court; classified material and the verbatim appeal record are sealed. (c) Unless paragraph (2) applies, the alien or Attorney General may appeal a hearing decision within 20 days, and the order is not enforced while the appeal is pending. A lawful permanent resident denied a written classified-information summary receives automatic appellate review unless the alien waives it; only the designated special attorney may represent the alien on classified-information issues. The entire record is transmitted, with private material and revealing portions of the order under seal. Appeals must be heard as quickly as practicable; the court may omit full briefing, must issue an opinion within 60 days after the district court’s final order, reviews law anew, and defers to factual findings unless clearly erroneous. For the specified permanent-resident summary review, facts are reviewed anew. (d) After the appellate decision, the alien or Attorney General may ask the Supreme Court for certiorari. Any submitted sealed information remains sealed. Removal is not stayed while that request is decided unless the Court of Appeals or a Supreme Court Justice orders otherwise. (e) Title 18 sections 3145 through 3148 rules on release and detention review, failure to appear, crimes while released, and release-condition violations apply to an alien covered by section 1537(b)(1). Appeals under section 3145 go to the D.C. Circuit, and for section 3146 the alien is treated as released in connection with an offense punishable by life imprisonment. Attorney General decisions under section 1537(b)(2)(C) cannot be judicially reviewed, including by habeas corpus, except for a constitutional claim that continued detention violates the alien’s rights; only the D.C. Circuit has jurisdiction over that challenge.

the actual law source: uscode.house.gov ↗public domain

(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.

(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.

(d) Certiorari

Following a decision by the Court of Appeals pursuant to subsection (c), 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.

Source credit: (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.)

history & why it existsrecord from the source credit

1952Enacted · Pub. L. 104-132 · 110 Stat. 1263
1996Amended · Pub. L. 104-208 · 110 Stat. 3009

A history note hasn’t been published yet. The record shows enactment by Pub. L. 104-132 on 1952-06-27.

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