Antiterrorism Act Expands Detention and Removal Authority, Benefits Immigrants Hurt by Sept. 11 Events

IMMIGRATION LAW & POLICY

Arrest and Detention

ANTITERRORISM ACT EXPANDS DETENTION AND REMOVAL AUTHORITY, BENEFITS IMMIGRANTS HURT BY SEPT. 11 EVENTS
Immigrants' Rights Update, Vol. 15, No. 7, Nov. 16, 2001

The antiterrorism law that Congress passed and President George W. Bush signed in October significantly expands the government's arsenal of law enforcement tools, including its authority to monitor e-mail, individuals' use of the Internet, and cell phone conversations. Title IV of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001, signed by the president on Oct. 26, 2001, provides for enhancing security along the U.S.'s northern border, expands the definition of "terrorism," and mandates measures to facilitate data sharing among federal agencies charged with preserving U.S. security. Also included in the law are humanitarian measures that preserve the lawful immigration status of individuals who lost relatives in the terrorist attacks of Sept. 11, 2001.

While the act's provisions represent compromises by lawmakers and are scaled back from the original proposals set forth by the attorney general, they nevertheless represent bold new measures that must be vigilantly monitored. Below is a summary of the new law's immigration provisions.

Additional Resources to the Northern U.S. Border. The new law triples the number of Border Patrol, Customs Service, and Immigration and Naturalization Service inspectors and adds $50 million to the INS and U.S. Customs Services for improving technology and monitoring the border with Canada. It also waives the cap on overtime for INS personnel.

Interagency Data Sharing. The new law requires the attorney general and the Federal Bureau of Investigation to share with the INS and State Dept. criminal history record information from the National Crime Information Center's Interstate Identification Index, Wanted Persons File, and other National Crime Information Center files. These records are to be used for determining whether visa applicants or applicants for admission have criminal histories.

The attorney general and State Dept. are mandated to develop and certify technology that can be used to verify the identity of persons applying for U.S. visas or seeking to enter the U.S. with visas. The new technology would be used for conducting background checks, confirming identities, and ensuring that persons have not received visas under different names.

Report on the Integrated Automated Fingerprint Identification System for Ports of Entry and Overseas Consular Posts. The attorney general must report to Congress on the feasibility of enhancing the FBI's Integrated Automated Fingerprint Identification System (IAFIS) and other identification systems. These systems would be used to better identify persons who hold foreign passports or visas who may be wanted in criminal investigations in the U.S. or abroad before visas are issued to them or they enter or exit the U.S.

Expansion of Terrorism Definition. The new law expands the definition of "terrorist" by adding new grounds of inadmissibility for representatives of foreign terrorist organizations that publicly endorse terrorist activity and that the secretary of State determines undermine U.S. efforts to reduce terrorist activity. Spouses and children of such non-U.S. citizens deemed inadmissible on terrorism-related grounds are also inadmissible, except for those who did not know or reasonably would not have known of the terrorist activity as well as spouses and children who have renounced terrorist activity.

The new law also accords the secretary of State unreviewable authority to designate as a "terrorist organization" any foreign or domestic group simply by publishing such a designation in the Federal Register.

One of the law's most controversial features is its expansion of the definition of "terrorist activity," which is a ground of inadmissibility and deportability. It expands the definition to include soliciting funds or providing material support to a group the secretary of State has designated as a terrorist organization, even if such contributions were made without intent to further terrorist goals.

Under the new law, soliciting funds and providing material support to terrorist organizations that are not officially designated are deportable offenses unless the contributor can prove that he or she did not know and should not reasonably have known that the solicitation would further the organization's terrorist activity. However, certain of the new grounds of inadmissibility do not apply to actions taken before the law's enactment with respect to a group that had not been designated as a terrorist organization by the secretary of State at the time.

Upon a consular officer's recommendation that there is no reasonable ground to believe a non-U.S. citizen knew or reasonably should have known that certain actions would further terrorist activity, the attorney general has discretion not to apply the new law against the individual outside the U.S. if his or her actions took place before Oct. 26, 2001.

Mandatory Detention of Suspected Terrorists. Another feature of the new law that has evoked considerable press attention is its mandatory detention provisions. The act authorizes the attorney general to certify a noncitizen as a terrorist if the attorney general has reasonable grounds to believe the individual is engaged in any activity that endangers the national security of the United States. Any noncitizen who the attorney general certifies as a terrorist may be taken into custody and must remain in custody until his or her removal from the U.S. The individual may be kept in custody irrespective of his or her eligibility for relief from removal. The attorney general's authority to certify a noncitizen as a terrorist may be delegated only to the deputy attorney general. The attorney general may detain a noncitizen certified terrorist up to seven days before charging him or her with a criminal offense. Failure to charge within that period requires the noncitizen's release from custody.

A noncitizen who is certified as a terrorist and detained and whose removal is unlikely in the reasonably foreseeable future may be detained for periods of up to six months. The individual must be detained if he or she threatens U.S. national security, the safety of the community, or any person.

The attorney general must review the individual's certification every six months. If he determines that the certification should be revoked, the attorney general may, unless prohibited by law, release the individual under certain conditions. Every six months, the detained individual may request in writing that the attorney general reconsider the certification; the detained individual may submit documents or other evidence in support of that request.

Judicial review of any decision concerning detention or certification is available in habeas corpus proceedings in any district court with jurisdiction. Appeals may be reviewed only by the Court of Appeals for the District of Columbia.

Six months after Oct. 26, 2001, and every six months thereafter, the attorney general must report to Congress on the number of noncitizens certified as terrorists; the grounds for the certifications; and the nationalities, length of detention, and number of persons certified who were granted any form of relief from removal, who were removed, or who the attorney general has determined should no longer be certified and who were released from detention.

Multilateral Cooperation against Terrorists. The law allows the State Dept. to provide, on a case-by-case basis, records to foreign governments in order to prevent, investigate, or punish acts of terrorism. Under prior law, such records were confidential and could be used only to formulate and enforce U.S. law.

Visa Integrity and Security. The new law states that it is the sense of Congress that an integrated entry and exit data system (tracking all entries to and exits from the country) should be fully implemented at airports, seaports, land borders, and ports of entry "with all deliberate speed and as expeditiously as practicable." It also requires the immediate establishment of an entry and exit data task force and authorizes funds for that purpose.

Congress foresees that the integrated entry and exit data system would rely on biometric technology and tamper-resistant documents. The system should also be able to interface with federal law enforcement databases so that individuals who pose a threat to the national security could be identified and detained.

Within 12 months of the act's enactment, the Office of Homeland Security must report to Congress on the information that U.S. agencies need to effectively screen visa applicants and applicants for admission to the U.S. in order to identify those affiliated with terrorist organizations or those that pose any threat to the security of the U.S.

Foreign Student Monitoring Program. The new law requires the attorney general to fully implement and expand the program established by section 641(a) of the Immigration and Nationality Act. Authorized by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), section 641(a) requires the INS to collect information on students and other participants in the Visitors Exchange Program.

For each individual whose information is collected under section 641(a), the attorney general shall include information on the date of entry and port of entry. In addition, the term "educational institution" is amended to include any air flight school, language training school, or vocational school approved by the attorney general in consultation with secretaries of Education and State.

The law authorizes $36,800,000 to the Justice Dept. for the period beginning on Oct. 26, 2001, and ending on Jan. 1, 2003, to fully implement and expand the enforcement of section 641(a).

Machine Readable Passports. The law requires that countries that are participants in the Visa Waiver Program have machine readable passports by the year 2003 rather than 2007, as required under prior law. INA § 217(c)(2)(B). It also allows waivers for nationals of countries that the attorney general finds are making progress towards meeting these requirements.

Each fiscal year until Sept. 30, 2007, the secretary of State must

conduct annual audits of the implementation of the Machine Readable Passport Program;
check for the implementation of precautionary measures to prevent the counterfeiting and theft of passports; and
ascertain that countries designated under the visa waiver program have established a program to develop tamper-resistant passports.

Upon one year of enactment and every year until 2007, the secretary of State must report to Congress on the findings of the most recent audit.

Prevention of Consulate Shopping. Under the new law, the secretary of State must review how consular officers issue visas to determine if "consulate shopping"—i.e., the practice of seeking out a consulate that will issue the applicant a visa when other consulates have declined to issue a visa—is a problem. If consulate shopping is identified as a problem, the secretary of State must take corrective steps to address it and report to Congress on any actions taken.

Provisions Benefiting Persons Whose Immigration Process Was Affected by the Events of Sept. 11, 2001. The new law provides that the attorney general may grant special immigrant status to noncitizens who were beneficiaries of a family- or employment-based visa petition, fianceé(e) visa petition, or labor certification filed on or before Sept. 11, 2001, whose petitions were revoked, terminated, or rendered null before or after approval due to the death or disability of the petitioner, applicant, or principal beneficiary, or the physical damage or destruction of the petitioner's or applicant's business as a direct result of terrorist attack.

Spouses and children who were accompanying or following to join a principal beneficiary also qualify for this status, even if the principal beneficiary has died. In addition, grandparents of children whose U.S. citizen or lawful permanent resident parents died as a direct result of the Sept. 11 terrorist activity also qualify for special immigrant status. The public charge ground of inadmissibility will not apply to these special immigrants.

The law contains a number of provisions to extend status and filing deadlines for nonimmigrants affected by the events of Sept. 11. The status of nonimmigrants who were disabled as a direct result of the Sept. 11 terrorist activity and were lawfully present in the U.S. on Sept. 10, 2001, is extended until the date the status would have terminated if the new law had not been enacted or one year after the death or onset of disability, whichever comes later. Lawful nonimmigrant status of spouses and children of principal nonimmigrants who died as a result of the terrorist attacks is also extended for one year. Nonimmigrants who qualify for this one-year extension are also to be provided employment authorization.

Nonimmigrants who were lawfully present in the U.S. on Sept. 10, 2001, and who were prevented from filing a timely application for an extension or change of status as a direct result of terrorist activity are granted a 60-day extension to file these applications.

A nonimmigrant who was lawfully present in the U.S. on Sept. 10, 2001, who was unable to timely depart the U.S. as a direct result of terrorist activity will not be considered to have been unlawfully present in the U.S. during the period beginning on Sept. 11, 2001, and ending on the date of the individual's departure, if such departure occurs on or before Nov. 11, 2001.

A nonimmigrant who was in lawful status on Sept. 10, 2001, but not present in the U.S. on that date who was prevented, as a direct result of terrorist activity, from returning to the U.S. in order to file a timely application for an extension of nonimmigrant status will be considered to have timely filed an application if it is filed no later than 60 days after it was due.

A nonimmigrant who was in lawful status on Sept. 10, 2001, but not present in the U.S. on that date and who, due to terrorist activity, could not return to the U.S. to file an application to extend nonimmigrant status may remain lawfully in the U.S. in the same nonimmigrant status until the date such lawful nonimmigrant status would have terminated or 60 days after the date the extension should have been filed, whichever comes later.

The law defines circumstances preventing an individual from acting in a timely way to include office closures; mail or courier service cessations; closures, cessations, or delays affecting case processing; and delays in travel that is necessary to satisfy legal requirements.

Winners of the diversity lottery who were required to enter the U.S. by Sept. 30, 2001, and were unable to do so because of terrorist attacks may enter or adjust status by Apr. 1, 2002. If visa numbers under the 2001 program have been exceeded by that time, such diversity lottery winners must be counted under the 2002 program.

If a principal beneficiary of the visa lottery died as a result of terrorist activity, the principal's spouse and children will be eligible for permanent residence under the program until June 30, 2002. However, the ceiling placed on the number of diversity immigrants may not be exceeded.

A person with an immigrant visa who was unable to enter the U.S. as a direct result of terrorist activity and whose visa expires before Dec. 31, 2001, will have an extension until that date unless a longer period is otherwise provided under the new law.

A noncitizen granted parole that expired on Sept. 11, 2001, who, as a result of terrorist activity, was unable to return to the U.S. prior to the expiration date, is extended parole for an additional 90 days.

Voluntary departure that began on Sept. 11, 2001, and ended on Oct. 11, 2001, is extended for an additional 30 days.

Humanitarian Relief for Certain Surviving Spouses and Children. A noncitizen whose U.S. citizen spouse died as a result of terrorist activity will remain an immediate relative after the citizen's death, provided they were not legally separated at the time of the citizen's death and the noncitizen files a family visa petition within two years of the citizen's death. Unlike under prior law, the marriage need not have existed for two years prior to the death of the U.S. citizen spouse.

A noncitizen child of a U.S. citizen who died due to terrorist activity will remain an immediate relative after the date of the citizen's death regardless of changes in age or marital status thereafter, but only if the noncitizen files a petition within two years after such date.

Any spouse, child or unmarried son or daughter of a lawful permanent resident who died due to the Sept. 11, 2001, terrorist activity and was included in a family visa petition filed by the LPR before that date and had not been admitted or approved for lawful permanent residence by that date will continue to be considered a valid petitioner for preference status and will remain eligible for lawful permanent status and have the same priority date as that assigned prior to the petitioner's death. The individual need not file a new petition. In addition, the spouse, child, son, or daughter may be eligible for deferred action and work authorization.

If a spouse, child, or unmarried son or daughter of a person who was an LPR on Sept. 11, 2001, and who died as a result of that day's terrorist activity was not a beneficiary of a family visa petition, he or she may self-petition with the INS if he or she was present in the U.S. on Sept. 11, 2001. Such a spouse, child, son, or daughter may be eligible for deferred action and work authorization.

If a principal beneficiary of an employment-based visa petition died due to the Sept. 11 terrorist activity, an individual who applied for adjustment of status as the spouse or child of that person may have the adjustment application adjudicated as if that death had not occurred.

The public charge grounds of inadmissibility do not apply to determine the admissibility of an immigrant accorded a benefit under the provisions for surviving spouses and children summarized herein.

A noncitizen whose twenty-first birthday occurred in Sept. 2001 who is the beneficiary of a petition or application filed before Sept. 11, 2001, will be considered a child 90 days after his or her twenty-first birthday for purposes of adjudicating the petition or application. A noncitizen whose twenty-first birthday occurs after Sept. 2001 who is the beneficiary of a petition or application filed under the INA on or before Sept. 11, 2001, will be considered to be a child for 45 days after his or her twenty-first birthday for purposes of adjudicating the petition or application.

For humanitarian purposes or to ensure family unity, the attorney general may provide temporary administrative relief to any noncitizen who was lawfully present in the U.S. on Sept. 10, 2001, and who on that date was the spouse, parent, or child of an individual who died or was disabled as a direct result of a specified terrorist activity.

The attorney general is directed to establish standards for evidence demonstrating that death, disability, or loss of employment due to physical damage or destruction of business occurred as a direct result of terrorist activity. The law waives promulgation of regulations and directs the attorney general to carry out the law as expeditiously as possible.

The law defines "terrorist activity" to include the events of Sept. 11, 2001, and states that nothing in the law will be construed to provide any benefit or relief to any individual culpable of terrorist activity. Nor will any benefits be provided to any family member of such an individual.