Immigration and National Security
The “Foreign Policy” and “Terrorism” Grounds (1211-1223 (skim), 1223-1243) INA §§ 212(a)(3), 212(d), 237(a)(4)
Post-1990 History of Current INA Provisions(see below for provisions as currently enacted after all these changes – this is to show evolution)
1990 Act: Revised and streamlined the various foreign policy exclusion and deportation grounds.
Required notice to those excluded that it was on this basis.
Meant to end Cold-War style ideological exclusion; repealed C.P. membership provisions.
Specific terrorism grounds added.
AEDPA and IRRIRA: Post 1993 WTC bombing and Oklahoma City, concern about terrorism increases – focus of Congress shifts from protecting unpopular groups to preventing terrorism.
No more notice.
Terrorism expanded to include incitement thereof or membership in terrorist organizations.
Designation procedures (§ 219) added.
PATRIOT Act post 9/11:
Creates 2 new ways to qualify as terrorist (fast-track designation, fact-based test)
Expands terrorist activity to include material support
Adds separate grounds for mere association with terrorist organizations
Bans spouses and children, too (unless they show no mens rea)
Makes the exclusion grounds for committing terrorist activity into deportation grounds as well
Created a new def’n of terrorist group: any group whose members engage in terrorist activity (no longer need be designated such by Sec. of State)
REAL-ID:
Added grounds for receiving military-type training from terrorist orgs
To show you had no mens rea, evidentiary burden is now “clear and convincing” instead of “preponderance”
Additionally, it doesn’t help to reasonably believe you’re not supporting a terrorist activity. You must show (by C&C evidence) you reasonably shouldn’t have known the group was a terrorist group.
Makes a whole group fit the de facto terrorist organization category if any sub-part of it does
Makes rest of the terrorism inadmissibility grounds (not just terrorist activity)=deportability grounds
Policy arguments about terrorism grounds:
Neuman in book (p. 1226) identifies 3 difficulties:
Identifying forms of violent action extreme enough to qualify
Distinguishing “state terrorism” from legit state acts
Excepting acts of national liberation movements that would qualify
He concludes the terrorism grounds are so broad, Congress must have meant to delegate the real call to agencies (and for them to use this rarely, like the Cold War ideological grounds).
Outline of Current Provisions
In General (A): Alien inadmissible if AG has “reasonable grounds to believe” the alien is entering US to participate (even incidentally) in i) an activity to violate US law thru espionage/sabotage or evade export laws; ii) any unlawful activity; iii) any activity for purpose of overthrow of gov.
Terrorism (B):
Makes inadmissible any alien who:
Has engaged in a terrorist activity (§ 212(a)(3)(B)(i)(I))
AG/consular officer/Sec. of DHS knows/has reason to believe is engaged in/likely to engage in terrorist activity after entry (§ 212(a)(3)(B)(i)(II))
Has incited terrorist activity under circumstances evincing intent to cause death/serious bodily harm (§ 212(a)(3)(B)(i)(III))
Is a representative of (aa) a terrorist organization or (bb) a group endorsing terrorist activity (§ 212(a)(3)(B)(i)(IV))
Is a member of a terrorist organization designated by the Secretary of State under normal or fast-track procedures (as outlined below)… (§ 212(a)(3)(B)(i)(V))
…or of a “de facto” terrorist org., in which case alien can prove by clear & convincing evidence she didn’t know (& reasonably shouldn’t have) it was such an organization (§ 212(a)(3)(B)(i)(VI))
Endorses or espouses terrorist activity or persuades others to do so (§ 212(a)(3)(B)(i)(VII))
Has received military-type training from a terrorist organization (§ 212(a)(3)(B)(i)(VIII))
Is the spouse or child of anyone falling under the above (§ 212(a)(3)(B)(i)(IX))
Unless the activity was >5 years ago…
“Terrorist Activity” includes activity unlawful where it was committed or in the U.S. or any state, and must “involve” (§ 212(a)(3)(B)(iii)):
Hijacking
Kidnapping in order to compel some act/omission by a 3d party
Violent attach on an internationally protected person
Assassination
Use of biological, chemical, or nuclear weapons or explosives, firearms, or dangerous devices with intent to endanger safety or substantially damage property (and not for personal monetary game)
Threat/attempt/conspiracy to do that above.
To “engage in” terrorist activity means, as an individual or member of a group (§ 212(a)(3)(B)(iv)):
to commit or incite a terrorist activity under “circumstances indicating” intent to cause death/serious bodily injury
to prepare for/plan a terrorist activity
to gather information on targets for such activity
to solicit funds or “other things of value” for a terrorist activity or org (with the same opportunity as above to give clear and convincing evidence of no mens rea if the group hasn’t been designated)
to solicit anyone to do anything in this section or join a terrorist org (same mens rea exception)
to commit an act that provides material support (examples given), with mens rea of at least negligence, for a terrorist activity, to someone alien knows/should know has/will commit such act, or to a terrorist org (same mens rea exception) (Note “levels” of mens rea here!).
Exception: Secr. of State consulting w/AG (DHS head) can decide this clause doesn’t apply.
Section (iv) ends by saying representatives of the PLO are per se engaged in terrorist activity.
“Representative:” officer/official/spokesperson/anyone who directs a terr. act (§ 212(a)(3)(B)(v)).
“Terrorist organizations” include (§ 212(a)(3)(B)(vi):
Designation under § 219 (by Sec. of State, subject to judicial review under § 219(b)).
Review:
To get review, P must challenge designation w/in 30 days.
Gov may submit evidence in camera and ex parte.
Court may overturn designation on APA grounds – abuse of discretion, arbitrary & capricious, didn’t obey statute, etc.
Consequences through the law (not just in immigration): Any person who provides material support to such org. is subject to criminal penalties (18 USC § 2339B); Secretary of Treasury may freeze assets.
Material support includes any property or service including lodging, training, advice, transport, etc (voided for vagueness in Humanitarian, Cong. redefined) (see below!)
Fast-track designation for immigration (not criminal) purposes only:
covers any ‘group of individuals, whether organized or not, which engaged in’ terrorist activities as defined above
includes solicition funds or members and material support.
Fact-based: Organization in fact engaged in “terrorism” as defined herein.
Foreign Policy (C): Inadmissibility if Sec. of State has “reasonable ground” to believe there would be potentially serious foreign policy effects on U.S.
Exception 1: Foreign officials/candidates can’t be excluded for beliefs/associations that would be lawful in the US (usually coming on non-immigrant visas for diplomatic reasons).
Exception 2: Nobody can be excluded for beliefs lawful in U.S.; unless Sec. State finds admission would “compromise a compelling U.S. foreign policy interest.”
Committee Report (p. 1212): Exclusion is meant to be allowed only where there is a clear negative foreign policy impact of entry – not just because of the “signals” admission will send. Exception for “compelling” FP interests is very strict, e.g., admission would violate a treaty obligation.
Membership in Totalitarian Party (D)
Participation in Nazism/genocide/torture (E)
Association with Terrorist Organizations (F): New, broad, discretionary ground:
Inadmissibility of the Secretary of State, consulting w/AG (DHS head), finds 1) you’ve “been associated w/a terrorist org” and 2) you intend to engage (even incidentally) in “activities that could endanger the welfare, safety, or security of the U.S.”
§ 212(d)(3)(A): A consular officer can grant a nonimmigrant visa (or admit someone who already has one), w/AG (DHS head)’s approval and on conditions he prescribes, to an alien she knows or believes would be inadmissible on any foreign affairs (212(a)(4)) grounds
You can’t get a nonimmigrant visa or admission if inadmissible on foreign policy (C); general (A – except A(i)(II), evading export laws); or Nazi/genocide (E(i) and (ii)) grounds.
§ 212(d)(3)(B): Sec. of State, after consultation w/AG, can in unreviewable discretion, choose not to apply § 212(a)(3)(B)(i)(IV)(bb) (membership in group endorsing terrorist activity), (i)(VII) (espousal of terrorism), (iv)(VI) (material support), or (vi)(III) based on activity of a subgroup (de facto terrorist statues). This discretion can’t be exercised once removal proceedings begin. Sec.s of State and DHS have to report to Congress if they use this discretion.
§ 237 (a)(4): Deportation grounds parallel to inadmissibility grounds in § 212(a)(3). Imports A, B, C, E, F. Does not import D (totalitarianism). Adds deportability for “receipt of military-type training” with no mens rea, and “participation in the commission of severe violations of religious freedom.”
Matter of Ruiz-Massieu (BIA 1999) (p. 1217):
Construes “reasonable ground to believe” there will be foreign policy impacts (applies to § 212(a)(3)(A), too). Former deputy AG of Mexico flees the law, admitted as nonimmigrant to U.S., and is arrested when leaving @ Newark, where Sec. of State tries to deport him to Mexico on this grounds. U.S. foreign relations would be undermined, Sec of State says, if we didn’t hand him over (we’d be undermining Mex’s fight against corruption).
BIA: Sec of State has to come forward with “facial” reasonableness – they won’t inquire further. More like plausibility than “reasonable ground.”
Sample Problem (Problem 1, p. 1211)
Convicted in UK 23 yrs ago for IRA attack on Brit military (none killed). Severed ties w/IRA, married American.
Applicable Inadmissibility Grounds:
§ 212(a)(3)(B)(i)(I), engaging in terrorist activity, which per § 212(a)(3)(B)(iii)(V)(b) includes use of a firearm other than for personal monetary gain (as long as he had the requisite intent).
Or § 212(a)(3)(B)(i)(VI), membership in a “de facto” terrorist organization, defined in § 212(a)(3)(B)(vi)(III) to include groups with terrorist sub-groups (which IRA has).
Note that only “de facto” terrorist groups have the subgroup proviso, or the possibility of showing that you didn’t know about their terrorist activities. He probably can’t show he didn’t/shouldn’t have known.
And anyway, he may have been a member of one of IRA’s designated subgroups – we don’t know.
Possible Waivers:
The “5 years ago” exception is only for spouses.
The AG’s discretion can only come into play for a nonimmigrant visa.
Upshot: He is inadmissible and no discretionary waiver is possible.
Constitutionality of § 219 Designations
Due process challenge to § 219: PMOI v. State Dep’t (D.C. Cir. 2003) (p. 1230)
Background: Sec of State designated PMOI a terrorist org under AEDPA in 1997 and renewed in 1999 and 2001. Designation lasts 2 years and requires finding that 1) the org is foreign, 2) it engages in terrorist activity, and 3) this activity threatens U.S. security or that of U.S. nationals.
First case: No jurisdiction for Due Process claim b/c PMOI had no U.S. presence; Sec.’s actions were in compliance w/statute (record compiled, 3 prongs found).
Second case: A subgroup was added that had U.S. presence. Due Process was considered and found to include “meaningful opportunity” for PMOI to be heard & see unclassified evidence used in the designation.
Third case (this one): PMOI claims DP requires it see the classified evidence too. Court says first prong and second prongs found in compliance w/DP (compelling executive interest in keeping nat’l security info secret), and third prong nonjusticiable.
Also included a speech claim rejected under Humanitarian Law Project (below).
Free speech challenge: Humanitarian Law Project v. Reno (9 Cir. 2000) (p. 1236):
P’s wanted to donate to PKK and Tamil Tigers (both designated groups) without criminal material support liability under 18 U.S.C. 2339B.
Court: unlike past speech cases punishing people for “association alone,” this punishes an act (material support) – not being a member or speaking up for a group.
Statutes that punish support (not “association alone”) get only intermediate scrutiny, which means: Reg must be w/in the power of the gov’t; must promote a substantial gov’t interest; which cannot be “to suppress expression”; and must be narrow.
Court gives latitude to political branches re: narrow tailoring, so the criminal penalties attached to § 219 pass.
Court also upheld injunction against application of the statute to provision of “personnel” and “training” as unconstitutionally vague.
Several rounds of litigation ensue; currently Congress has added more specific mens rea, district court has found some parts still unconstitutionally vague (but “personnel” at least is now fixed).
Policy:
David Cole (p. 1238): Guilt by association (would cover IRA and ANC). Narrow tailoring hinges on “fungibility” argument – that every donation frees up resources for terrorist ends – which is a strange assumption about groups’ priorities. PATRIOT’s additions to 212(a)(3)(B) are also pure ideological exclusion on speech grounds.
Gerald Neuman (p. 1242): The gov’t can’t control foreign orgs, so this is narrow.
Enforcement and Ethnicity (1243-1249) (not discussed in class)
Post-9/11 Detentions
DOJ detained 1182 people and INS 762, 1/3 Pakistani, mostly men, nearly all on visa violations.
INS issued a rule barring state facilities from releasing info on INS detainees there.
2003 DOJ Office of the Inspector General report:
FBI clearance took 80 days, policy was to hold people through that time w/no bond
Staff at Metropolitan Detention Center lied about whether specific detainees were there
Harsh treatment including 24-hour illumination
Follow-up report described physical and verbal abuse.
Post-9/11 Interviewing
7,600 Middle Eastern men present as nonimmigrants, and later 11,000 Iraqis, interviewed about terror ties
“Special Registration”
Call-in requirement for adult male nonimmigrants from 25 Muslim/Arab countries (failure would = loss of status). 82,000 men complied as of 2003, 13,000 of whom were here illegally.
Suspended in Dec. 2003.
Secret Evidence and Public Access (1267-1275)
Secret Evidence
Part of 1952 Act; provides statutory authority for secret evidence (as was used in Knauff and Mezie based on regulations) in removals based on most of the foreign policy inadmissibility grounds.
Rafeedie v. INS (D.D.C. 1992) (p. 1268) – returning LPR has more DP rights than this.
Adopted as part of AEDPA
Allows secret evidence to be used (that is, exempted from normal rights to present evidence in response and to cross-examine witnesses) in hearings to determine whether discretionary relief should be given.
Kiareldeen v. Reno (D.N.J. 1999) (p. 1268)
DP challenge to § 240(b)(4)(B) (use of secret evidence as basis for liberty deprivation).
Kiareldeen overstayed visa; IJ adjusted him to LPR status (though INS presented national security evidence in camera); INS appealed to BIA; BIA affirmed but granted INS request (again based on secret ev) for a stay to appeal to A.G. Kiareldeen, still detained, files a habeas petition.
Court: Mezei doesn’t settle the issue; Kiareldeen is an LPR (not seeking admission) and post-Plascencia you can’t deny LPRs have some DP rights.
To see what his DP rights are, Court applies the Mathews test: Balance K’s liberty interest; the gov’t’s national security interest; and the risk of erroneous deprivation.
Risk is high given secret evidence is very hard to contest.
Liberty interest is high.
Gov’t’s interest in relying on secret evidence. Court refuses to take gov’t’s assertion of its national security interest at face value, says the interest can’t outweigh the very strong liberty interest at issue, and grants K’s petition for release.
Public Access
Detroit Free Press v. Ashcroft (6 Cir. 2002) (p. 1279):
Chief IJ issued “Creppy Directive” closing off public access to removal procedures/records for “special interest” detainees. Detainee whose hearing was closed; several newspapers; and a Congressman file First Amendment claims; newspaper claim is heard here (on motion for preliminary injunction) (so this is really about papers’/public’s, not detainees’, First Amendment rights, though court seems to see it differently).
Court: Plenary power (at least when it comes to Constitutional claims) does not extend to non-substantive areas of immigration law; we won’t defer. In other words – constitution (and not only Due Process as found in Plascencia) does limit non-substantive areas of immigration law.
Given that First Amendment applies in general, the test for presence of an actual right is whether “experience and logic” dictate press access.
Experience: Deportation proceedings historically open; INA never delegated closure authority to AG
Logic: Does public access “play a significant role” in this process? Yes, oversight is even more important in an area where the political branches have so much power. Appearance of fairness important after post-9/11 roundups.
So, given the presence of a right, strict scrutiny is applied.
Compelling state interest? Yes; revealing investigations to terrorists (who could learn tactics, interfere w/trials, hide info, etc.); intimidating witnesses; avoidance of stigma to detainees who may be innocent.
Narrowly tailored? No reason why closure couldn’t happen case-by-case.
Given demonstration of likelihood of success on merits, other 2 prongs of PI test (public interest and irreparable harm) are satisfied.
3d circuit has reached opposite result in North Jersey Media Group v. Aschcroft.
611 closed trials for “special interest” detainees.
Removal Proceedings
Removal Proceedings (621-29)
Yamataya v. Fisher (Japanese Immigrant Case): Y arrived in US and found deportable 4 days later because she was excludable at time of entry as likely to become a public charge. Provision stated that alien may be deported at any time as provided by law w/in 1 yr. of illegal entry.
Y claimed investigation was inadequate because she didn’t understand English and didn’t realize it dealt w/ her deportability deportation w/out notice and opportunity to be heard is inconsistent w/ due process clause of V Amdt.
Plenary power of Congress: may exclude aliens for race; set conditions; regulating deportations.
Congress did not intend for mere admission to place alien beyond control of executive govt.
Court has never held that administrative officers may disregard fundamental principles of DP as understood at time of adoption of Constitution.
Fundamental principle no deprivation of liberty w/out opportunity to be heard.
Statutory interpretation: must interpret w/out doing violence to the words used while bringing it into harmony with the Constitution.
admin. process was not denial of DP: had notice and was not denied opportunity to be heard.
Lack of English was a ‘misfortune’ but not a reason to overturn the outcome.
Holding: deportation upheld even though there was no formal hearing, lack of English comprehension, and Y was unaware of proceedings.
Nevertheless, case stands for proposition that deportation procedures (at least for lawfully admitted noncitizens) must conform to DP clause.
Modern Test to determine what process is due
Mathews v. Eldridge: balance three factors:
interests of individual
interest of govt. in using existing procedures
gain to accurate decision-making that can be expected from added procedural protections
§ 239: notice to appear issued by ICE (USCIS & Border Patrol can also do it). Officer must make prima facie showing of removability:
Notice must include nature of proceedings, legal authority for proceedings, conduct alleged, charges against alien, and may be served in person or by mail
Must inform alien he has right to counsel (though not appointed), provide list of legal services, and allow 10 days to get counsel
Codification of Yamataya (must give notice & opportunity to be heard)
§ 240: sets forth rights of noncitizens during proceedings
Right to examine govt. evidence, present evidence and cross-examine
Federal Rules of Evidence don’t apply and hearsay is OK as long as evidence is relevant
Noncitizen has right to be present, but if you have not notified ICE of your whereabouts and you don’t appear, you’ll be adjudicated in absentia
must notify ICE of change of address in 10 days
Burden of proof: reasonable, substantial, and probative evidence
Removal of LPR burden on ICE to show that person is removable by clear & convincing evidence.
Exclusion (arriving aliens) or parole proceedings burden on noncitizen that he is clearly and beyond reasonable doubt allowed to enter.
Undocumented aliens govt. has burden of showing they are not citizens (small presumption in favor of alien); once shown, aliens must show by clear and convincing evidence that they’re entitled to admission.
Removal proceeding: standards are mostly the same for exclusion & deportation
Burden of proof are different (see above)
Some who have not yet been lawfully admitted are not eligible for discretionary relief
LPR subject to deportation are NOT subject to expedited removal (unlike those seeking admission and those unlawfully present w/in 100 miles of border)
Removal proceedings have two stages:
master calendar hearing: determines if merits hearing req’d; ∆ may admit allegations; waive relief except VD;
individual merits hearing:
Arrest § 236(a) arrest w/ warrant; § 287(a) arrest w/out warrant if officer believes (1) alien is entering in violation of law; (2) alien is present in violation of law and is likely to escape.
Decision to begin removal proceedings must be made w/ 48 hrs. of arrest except in case of emergency or extraordinary circumstances
Patriot Act allows detention for 7 days w/out filing notice to appear or criminal charges if AG certifies that individual is a terrorist. § 236(a)(3), (5)
Govt. may delegate to state/local law enforcement if they receive training and supervision [287(g)]
First agreements in 2002 (Florida, Alabama)
w/out agreements state/local officers may arrest/detain individuals only in limited cases
Majority of noncitizens who are apprehended are not served w/ notice to appear and even if they are they mostly don’t go through removal proceedings avoid penalties associated with formal removals (choose VD)
Role of Immigration Judge:
Marcello v. Bonds:(1955)SC rejected challenges to judge’s ties to INS (argument that relationship strips hearing of fairness and impartiality and violates DP). Court rejects this: (1) standing practice in deportation proceedings; (2) that has been judicially approved in fed courts; (2) Congress has taken this into account in its broad discretion.
[1981] finding that INS doesn’t provide adequate support service to Immigration Judge contributing to long delays and that IJ are administratively dependent upon officials who are involved in adversary capacity in proceedings before the judges.
[1983] creation of EOIR IJs are under general supervision of EOIR director which remains in DOJ
criticism: combination of prosecutorial and adjudicative functions of IJ