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U.S. Code as of:
01/03/05
Section 1535. Appeals
(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.
(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.
(d) Certiorari
Following a decision by the Court of Appeals pursuant to
subsection (c) of this section, 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.
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