Constitutional And Regulatory Limits To Using Secret “Classified” Evidence

Ninth Circuit holds that the use of classified information in an immigration proceeding violated regulatory and due process limits, in Kaur v. Holder, 561 F.3d 957 (9th Cir. April 1, 2009) (No. 06-71048)

Under what circumstances can the government present secret evidence to a tribunal? Are there constitutional or other limits to the use of secret evidence? These issues were recently considered by the Ninth Circuit on review of an asylum petition. The circuit also noted an open issue on whether Supreme Court precedent has any “continuing viability.”

In the case, petitioner Kaur and her husband petitioner Cheema sought review of a decision of the Board of Immigration Appeals (BIA) denying Kaur asylum and Cheema asylum and withholding of deportation. The Ninth Circuit had earlier remanded their case for reconsideration. See Cheema v. Ashcroft, 383 F.3d 848 (9th Cir. 2004). On remand, the BIA considered classified evidence on Kaur’s case and concluded she was “a danger to the security of the United States” based on her involvement “in terrorist activity since entering the United States.” Kaur v. Holder, 561 F.3d at 960.

The original ruling of the BIA in 2002 was based on unclassified evidence. During remand, the BIA considered “secret” classified evidence which was originally presented to the immigration judge but which the BIA had not reviewed. In denying asylum relief, the BIA issued an unclassified ruling with a “classified attachment.” The unclassified ruling noted: “as argued by the DHS, the unclassified summary of classified evidence relating to the female applicant states that ‘reliable confidential sources have reported that Kaur has conspired to engage in alien smuggling; has attempted to obtain fraudulent documents; and has engaged in immigration fraud by conspiring to supply false documents for others.’” Kaur v. Holder, 561 F.3d at 960 (citation omitted). [Cheema requested removal and was deported; consequently his petition for relief was found to be moot.]

The Ninth Circuit held, in part, that BIA had abused it discretion “by using secret evidence without giving Kaur sufficient notice about the parameters of that evidence to allow her to defend against it.” Kaur v. Holder, 561 F.3d at 960. The Ninth Circuit also concluded that the BIA abused its discretion in concluded petitioner Kaur demonstrated a “lack of candor” based on a record where the immigration judge found her, on the whole, to be credible.

The circuit noted that secret information had been permitted before in immigration cases:

“In 1956, the Supreme Court sanctioned the use of confidential or secret information in connection with discretionary decisions in immigration proceedings. Jay v. Boyd, 351 U.S. 345 (1956). The continuing viability of Jay has been disputed, but we do not need to resolve that question here. Here, the use of secret evidence is limited by the regulations themselves and by the due process principle of ‘fundamental fairness.’ The lack of fair notice to Kaur violates both the regulations and due process.”
Kaur v. Holder, 561 F.3d at 961.

Regulatory Limitations

Immigration regulations allow the use of classified information:

“The Service counsel for the government may call witnesses and present evidence for the record, including information classified under the applicable Executive Order, provided the immigration judge or the Board has determined that such information is relevant to the hearing. The applicant shall be informed when the immigration judge receives such classified information. The agency that provides the classified information to the immigration judge may provide an unclassified summary of the information for release to the applicant whenever it determines it can do so consistently with safeguarding both the classified nature of the information and its source. The summary should be as detailed as possible, in order that the applicant may have an opportunity to offer opposing evidence. A decision based in whole or in part on such classified information shall state that such information is material to the decision.”
8 C.F.R. § 1240.33(c)(4).

The information provided to the petitioner in the case violated the regulations because the summary failed to be “as detailed as possible” and was “at best, conclusory and opaque,” consisting of one sentence: “[R]eliable confidential sources have reported that RAJWINDER KAUR has conspired to engage in alien smuggling; has attempted to obtain fraudulent documents; and has engaged in immigration fraud by conspiring to supply false documents for others.” In contrast, the circuit noted a summary of classified information was provided in other cases, such as Kiareldeen v. Ashcroft, 273 F.3d 542, 552 (3d Cir. 2001) (concluding that “[i]nformation contained in the unclassified summaries was ultimately sufficient to assist Kiareldeen in mounting a defense to the allegations.”).

Due Process Limitations

While the Federal Rules of Evidence did not apply in the immigration administrative proceedings, due process “fundamental fairness” standards applied. Kaur v. Holder, 561 F.3d at 961 (citing Martin-Mendoza v. INS, 499 F.2d 918, 921 (9th Cir. 1974) (“Hearsay is admissible in administrative proceedings, which need not strictly follow conventional evidence rules. The tests for admissibility are fundamental fairness and probativeness.”) (citing Marlow v. INS, 457 F.2d 1314 (9th Cir. 1972); other citations omitted)). The circuit concluded that the “use of the secret evidence without giving Kaur a proper summary of that evidence was fundamentally unfair and violated her due process rights.” Kaur v. Holder, 561 F.3d at 962.


Circuit Judge Noonan concurred. However, he noted a “reservation”:

“The use of secret “evidence” is itself a denial of a hearing. Jay v. Boyd, 351 U.S. 345, 361-62 (1956) (Warren, C.J., dissenting). If no hearing, then no process. This court and the BIA itself, as the opinion of the court states, have held that the test for the admissibility of evidence is “fundamental fairness.” A summary of secret evidence does not provide opportunity for cross-examination of the witness furnishing it. The evidence is untested. To conclude that a process is fundamentally fair in which cross-examination is precluded is to say a circle is a square. The verbal assertion may be made. The assertion does not transform the circle…. As the opinion of the court observes, we do not need to resolve the question here; but I would not like to leave the impression that a summary of secret evidence would have provided due process.”
Kaur v. Holder, 561 F.3d at 964 (Noonan, J., concurring).

Circuit Judge Rawlinson also concurred, but “reluctantly”. He noted that “the unclassified evidence in this case provided adequate support for the denial of relief to Kaur.” Kaur v. Holder, 561 F.3d at 964 (Rawlinson, J., concurring) (citing Cheema v. Ashcroft, 383 F.3d 848, 860-61 (9th Cir. 2004), as amended (Rawlinson, J., dissenting)). However, since the BIA included “classified information into its decision, remand is appropriate as a matter of fundamental fairness.” Kaur v. Holder, 561 F.3d at 964 (Rawlinson, J., concurring) (citations omitted).

Appellate Court Review Of Classified Information

How does a federal appellate court review classified information? The opinion explained that specific procedures have been established:

“The Litigation Security Section of the Department of Justice coordinated with security designees at the Ninth Circuit to make classified information available for viewing by members of the court.”
Kaur v. Holder, 561 F.3d at 960 n.2 (citing Al-Haramain Islamic Found. v. Bush, 507 F.3d 1190, 1194 n.2 (9th Cir. 2007) (“Pursuant to special procedures established by the Department of Justice, Litigation Security Section, the members of the panel reviewed the Sealed Document and the non-public classified versions of the pleadings and declarations. Our recitation of facts derives only from publicly-filed pleadings, including public versions of the declarations.”)).

The Kaur case presents some interesting issues concerning the use and consideration of classified evidence in administrative proceedings and on federal court review. While the rules may permit the use of classified evidence, the opinion notes that fundamental due process standards must be satisfied.

Federal Rules of Evidence