Kaur v. Holder, 561 F.3d 957 (9th Cir. Apr. 1, 2009) (BIA misused secret evidence by failing to give summary of that evidence to noncitizen in proceedings who had been admitted to the United States).



"The regulations governing immigration proceedings permit the use of classified information. See 8 C.F.R. 1240.33(c)(4) ("The Service counsel for the government may call witnesses and present evidence for the record, including information classified under the applicable Executive Order."). 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, 76 S.Ct. 919, 100 L.Ed. 1242 (1956). . . .



The regulations state that a summary of the classified evidence "may" be provided if it is possible to "safeguard[ ] both the classified nature of the information and its source." 8 C.F.R. 1240.33(c)(4). Such a summary "should be as detailed as possible, in order that the applicant may have an opportunity to offer opposing evidence." 8 C.F.R. 1240.33(c)(4). . . .



To be constitutional as to admitted aliens, who are entitled to due process, see Plyler v. Doe, 457 U.S. 202, 210, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982), the regulation must be read to require that summaries of the classified evidence be provided so long as it is possible to "safeguard[ ] both the classified nature of the information and its source." 8 C.F.R. 1240.33(c)(4). The summaries must be "as detailed as possible" without jeopardizing "the classified nature of the information or its source," such that the alien can reasonably respond to the government's allegations. . . .



In addition to the regulatory limitations, the use of secret evidence is cabined by constitutional due process limitations. Although the Federal Rules of Evidence do not apply in administrative proceedings, we have long held that there are limits on the admissibility of evidence and that the test for admissibility includes "fundamental fairness." Martin-Mendoza v. INS, 499 F.2d 918, 921 (9th Cir.1974) (citing Marlowe v. INS, 457 F.2d 1314 (9th Cir.1972)). The BIA has also recognized this principle in its own decisions: "[t]o be admissible ... evidence must be probative and its use fundamentally fair so as not to deprive respondents of due process of law as mandated by the fifth amendment." In re Toro, 17 I. & N. Dec. 340, 343 (B.I.A.1980).