(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.
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
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.
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.
Terms Used In 8 USC 1535
- alien: means any person not a citizen or national of the United States. See 8 USC 1101
- Appeal: A request made after a trial, asking another court (usually the court of appeals) to decide whether the trial was conducted properly. To make such a request is "to appeal" or "to take an appeal." One who appeals is called the appellant.
- Appellate: About appeals; an appellate court has the power to review the judgement of another lower court or tribunal.
- Attorney General: means the Attorney General of the United States. See 8 USC 1101
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Habeas corpus: A writ that is usually used to bring a prisoner before the court to determine the legality of his imprisonment. It may also be used to bring a person in custody before the court to give testimony, or to be prosecuted.
- Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- lawfully admitted for permanent residence: means the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed. See 8 USC 1101
- permanent: means a relationship of continuing or lasting nature, as distinguished from temporary, but a relationship may be permanent even though it is one that may be dissolved eventually at the instance either of the United States or of the individual, in accordance with law. See 8 USC 1101
- removal court: means the court described in section 1532 of this title. See 8 USC 1531
- removal hearing: means the hearing described in section 1534 of this title. See 8 USC 1531
- residence: means the place of general abode. See 8 USC 1101
- special attorney: means an attorney who is on the panel established under section 1532(e) of this title. See 8 USC 1531
- United States: except as otherwise specifically herein provided, when used in a geographical sense, means the continental United States, Alaska, Hawaii, Puerto Rico, Guam, the Virgin Islands of the United States, and the Commonwealth of the Northern Mariana Islands. See 8 USC 1101
- Writ: A formal written command, issued from the court, requiring the performance of a specific act.
- Writ of certiorari: An order issued by the Supreme Court directing the lower court to transmit records for a case for which it will hear on appeal.