Circuit Rule 47.6: Appeals from the Alien Terrorist Removal Court

(a) In General.

(1) Perfection. A party seeking to appeal from a decision of the Alien Terrorist Removal Court must do so by filing a notice of appeal in the office of the clerk of the court of appeals.

(2) Appeals Treated as Motions. Unless otherwise specified herein or ordered by the court, appeals will be treated and processed by the court as motions. See generally FRAP 27(d); Circuit Rule 27. The appellant must file, simultaneously with the notice of appeal, 5 copies of a memorandum in support of the appeal, not to exceed the length limits set by FRAP 27(d)(2). No response will be permitted unless specified by this rule. All submissions must be filed and, if served, served by hand. An alien not represented by counsel who is unable to file or serve submissions by hand must do so by the most expeditious means available to the alien that are effective to reach the Department of Justice promptly.

(3) Submissions to be Filed Under Seal. Unless otherwise specified herein, all submissions filed in the court in an appeal from the Alien Terrorist Removal Court must be filed under seal. In addition, any submission containing or referring to classified information must so indicate in an appropriate legend on the face of the submission. The court and all parties to a removal proceeding must comply with all applicable statutory provisions for the protection of classified information, and with the "Security Procedures Established Pursuant to Pub. L. 96-456, 94 Stat. 2025, by the Chief Justice of the United States for the Protection of Classified Information."

(4) Appointment of Counsel. Counsel appointed to represent or assist an alien in the Alien Terrorist Removal Court, including any "special attorney" designated under 8 U.S.C. § 1534(e)(3), must continue to represent or assist the alien in any proceedings in this court, without additional appointment.

(5) Expedition. All appeals from the Alien Terrorist Removal Court must be disposed of by this court as expeditiously as practicable. Any party to an appeal seeking disposition within a definite time period may move for such relief, stating the grounds in support.

(b) Appeal from the Denial of a Removal Application (8 U.S.C. § 1535(a)).

(1) Perfection. The United States may appeal the denial of an application to use the alien terrorist removal procedure, by filing in the court of appeals clerk's office, within 20 days of the date of the order appealed from, a notice of appeal accompanied by a memorandum in support of the appeal.

(2) Record. The United States must serve a copy of the notice of appeal on the Alien Terrorist Removal Court. Upon receipt of the notice, the Removal Court must transmit, under seal, the entire record of the application proceeding to the court of appeals.

(3) Ex Parte Appeal. An appeal from the denial of a removal application must be conducted ex parte and under seal. No submissions, including the notice of appeal and the memorandum in support of the appeal, will be served on the alien.

(c) Interlocutory Appeal from Discovery Orders (8 U.S.C. § 1535(b)).

(1) Perfection. The United States may appeal a determination of the Removal Court regarding a request for approval of an unclassified summary of evidence, or refusing to make requested findings under 8 U.S.C. § 1534(e)(3), by filing in the court of appeals clerk's office a notice of appeal accompanied by a memorandum in support of the appeal.

(2) Record. The United States must serve a copy of the notice of appeal on the Alien Terrorist Removal Court. Upon receipt of the notice, the Removal Court must transmit the entire record of the removal proceeding to the court of appeals. Any portion of the record sealed in the Removal Court must be transmitted to and maintained by this court under seal.

(3) Ex Parte Appeal. An appeal from a discovery determination will be conducted ex parte and under seal. No submissions, except the notice of appeal, will be served on the alien.

(d) Appeal from a Decision After a Removal Hearing (8 U.S.C. § 1535(c)).

(1) Perfection. The United States or the alien may appeal the decision of the Removal Court after a removal hearing, by filing in the court of appeals clerk's office, within 20 days of the date of the order appealed from, a notice of appeal accompanied by a memorandum in support of the appeal.

(2) Automatic Appeal. In the case of a permanent resident alien in which the alien was denied an unclassified summary of evidence under 8 U.S.C. § 1534(e)(3), and in which appeal is automatic unless waived, the alien must file, within 20 days of the date of the Removal Court's order, a memorandum in support of the appeal, or a notice that the appeal has been waived. Failure to file a timely memorandum in support of the appeal, or a timely notice of waiver, will result in dismissal of the automatic appeal for lack of prosecution.

(3) Record. The appellant (except in the case of an automatic appeal) must serve a copy of the notice of appeal on the Alien Terrorist Removal Court. Upon receipt of the notice, the Removal Court must transmit the entire record of the removal proceeding to the court of appeals. Any portion of the record sealed in the Removal Court must be transmitted to and maintained by this court under seal.

In the case of an automatic appeal, the Removal Court must, upon the filing of the court's order after the removal hearing, transmit a certified copy of the order, together with the record of the removal proceedings, to the court of appeals.

(4) Briefing. Within 10 days of the filing of the appellant's memorandum in support of the appeal, the appellee must file a responsive memorandum. Appellant's reply, if any, is due 5 days after the date the response is filed. The memoranda and the reply must be filed under seal, to the extent necessary to comply with subsection (a)(3) of this rule, and may not exceed the length limits set by FRAP 27(d)(2).

(5) Hearing and Disposition. As soon as practicable after the filing of the appeal, the court will inform the parties whether it will hear argument on the appeal or dispose of the appeal on the written submissions. The court will dispose of the appeal as expeditiously as practicable.

(e) Appeal from a Release or Detention Order (8 U.S.C. § 1535(e)). Any appeal from a release or detention order of the Removal Court will be governed by Circuit Rule 9, except that the appellant's memorandum in support of the appeal must be filed simultaneously with the notice of appeal.