Page:United States Statutes at Large Volume 110 Part 4.djvu/772

 110 STAT. 3009 -609 PUBLIC LAW 104-208—SEPT. 30, 1996 States and the court of appeals finds from the pleadings and affidavits that no genuine issue of material fact about the petitioner's nationality is presented, the court shall decide the nationality claim. "(B) TRANSFER IF ISSUE OF FACT.—I f the petitioner claims to be a national of the United States and the court of appeals finds that a genuine issue of material fact about the petitioner's nationality is presented, the court shall transfer the proceeding to the district court of the United States for the judicial district in which the petitioner resides for a new hearing on the nationality claim and a decision on that claim as if an action had been brought in the district court under section 2201 of title 28, United States Code. "(C) LIMITATION ON DETERMINATION.—The petitioner may have such nationality claim decided only as provided in this paragraph. " (6) CONSOLIDATION WITH REVIEW OF MOTIONS TO REOPEN OR RECONSIDER. —When a petitioner seeks review of an order under this section, any review sought of a motion to reopen or reconsider the order shall be consolidated with the review of the order. " (7) CHALLENGE TO VALIDITY OF ORDERS IN CERTAIN CRIMI- NAL PROCEEDINGS.— "(A) IN GENERAL.—I f the validity of an order of removal has not been judicially decided, a defendant in a criminal proceeding charged with violating section 243(a) may challenge the validity of the order in the criminal proceeding only by filing a separate motion before trial. The district court, without a jury, shall decide the motion before trial. " (B) CLAIMS OF UNITED STATES NATIONALITY.— If the defendant claims in the motion to be a national of the United States and the district court finds that— "(i) no genuine issue of material fact about the defendant's nationality is presented, the court shall decide the motion only on the administrative record on which the removal order is based and the administrative findings of fact are conclusive if supported by reasonable, substantial, and probative evidence on the record considered as a whole; or "(ii) a genuine issue of material fact about the defendant's nationality is presented, the court shall hold a new hearing on the nationality claim and decide that claim as if an action had been brought under section 2201 of title 28, United States Code. The defendant may have such nationality claim decided only as provided in this subparagraph. " (C) CONSEQUENCE OF INVALIDATION. —I f the district court rules that the removal order is invalid, the court shall dismiss the indictment for violation of section 243(a). The United States Government may appeal the dismissal to the court of appeals for the appropriate circuit within 30 days after the date of the dismissal. " (D) LIMITATION ON FILING PETITIONS FOR REVIEW.— The defendant in a criminal proceeding under section 243(a) may not file a petition for review under subsection (a) during the criminal proceeding.

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