8 U.S.C. § 1535

(a)

Appeal of denial of application for removal proceedings

(1)

In general

section 1533 of this titleThe Attorney General may seek a review of the denial of an order sought in an application filed pursuant to . 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)

section 1534(e)(3) of this title any determination by the judge pursuant to ; or

(B)

section 1534(e)(3) of this title the refusal of the court to make the findings permitted by .

(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.

(c)

Appeal of decision in hearing

(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

section 1534(e)(3) of this title section 1534(e)(3)(F) of this titleUnless 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 and with respect to which the procedures described in 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

section 1534(e)(3)(F)(i) of this titleWith 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 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)

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

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)  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

section 1537(b)(1) of this titleSections 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 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

section 1537(b)(2)(C) of this titleThe determinations and actions of the Attorney General pursuant to 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.

June 27, 1952, ch. 477 Pub. L. 104–132, title IV, § 401(a)Apr. 24, 1996110 Stat. 1263 Pub. L. 104–208, div. C, title III, § 354(a)(3)Sept. 30, 1996110 Stat. 3009–642 (, title V, § 505, as added , , ; amended , , .)

Editorial Notes

Amendments

Pub. L. 104–208, § 354(a)(3)(A)1996—Subsec. (c)(1). , substituted “Subject to paragraph (2), the decision” for “The decision”.

Pub. L. 104–208, § 354(a)(3)(D)Subsec. (c)(2). , added par. (2). Former par. (2) redesignated (3).

Pub. L. 104–208, § 354(a)(3)(C)Subsec. (c)(3). , redesignated par. (2) as (3). Former par. (3) redesignated (4).

Pub. L. 104–208, § 354(a)(3)(B)section 1534(c)(3) of this titleSubsec. (c)(3)(D). , inserted before period at end “, 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 , the Court of Appeals shall review questions of fact de novo”.

Pub. L. 104–208, § 354(a)(3)(C)Subsec. (c)(4). , redesignated par. (3) as (4).

Statutory Notes and Related Subsidiaries

Effective Date of 1996 Amendment

Pub. L. 104–208 Pub. L. 104–132 section 358 of Pub. L. 104–208 section 1182 of this titleAmendment by effective as if included in the enactment of subtitle A of title IV of the Antiterrorism and Effective Death Penalty Act of 1996, , see , set out as a note under .

Abolition of Immigration and Naturalization Service and Transfer of Functions

section 1551 of this titleFor abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under .

References to Order of Removal Deemed To Include Order of Exclusion and Deportation

section 309(d)(2) of Pub. L. 104–208 section 1101 of this titleFor purposes of carrying out this chapter, any reference in law to an order of removal is deemed to include a reference to an order of exclusion and deportation or an order of deportation, see , set out in an Effective Date of 1996 Amendments note under .