Justice Dept.'s "Patriot II" Bill Would Make Sweeping Immigration Changes

IMMIGRATION LAW & POLICY

Congressional Developments

JUSTICE DEPT.'S "PATRIOT II" BILL WOULD MAKE SWEEPING IMMIGRATION CHANGES
Immigrants' Rights Update, Vol. 17, No. 1, February 21, 2003

The U.S. Dept. of Justice has drafted new antiterrorism legislation that would broadly expand the government's authority to conduct surveillance, wiretapping, detention, and criminal prosecution of citizens, and would also make sweeping changes to immigration law. Among other things, the bill would expand the circumstances in which U.S. citizens can be stripped of citizenship and provide for the removal of lawful permanent residents without a hearing and with no recourse to relief, if they have been convicted of a controlled substance offense, a firearms offense, an aggravated felony, or various other offenses.

The bill, titled the "Domestic Security Enhancement Act of 2003" and also known as the "Patriot Act II," has not been officially released by the DOJ, but a draft was obtained and posted on the Internet by the Center for Public Integrity, at www.incunabula.org/DSEA/INDEX.HTM. A section-by-section analysis of the entire draft bill is available at the Web site of the American Civil Liberties Union, www.aclu.org. A brief summary of some of the bill's immigration provisions follows below.

Expanded Expatriation of U.S. Citizens. Section 501 of the bill broadly expands the circumstances in which individuals can be stripped of U.S. citizenship. Among other things, the bill would allow for the expatriation of citizens who provide material support to a terrorist organization engaged in hostilities "against the United States, its people, or its national security interests."

Increasing Criminal Penalties for Immigration Violations. Section 502 increases the criminal penalties for entry without inspection, reentry after removal, alien smuggling, failure to register if required to do so, failure to carry a certificate of registration or alien registration receipt ("green") card at all times, failure to notify the Immigration and Naturalization Service of a change of address within ten days of the change, making fraudulent statements in connection with registration, and unlawful voting.

Barring Admission to and Removing Noncitizens Whom the AG Considers Pose a Threat to National Security. Section 503 establishes new grounds of inadmissibility and removability for noncitizens about whose presence or activities in the U.S. the attorney general "has reason to believe" would pose a danger to national security. The provision also adds grounds of inadmissibility and removability for noncitizens whom the attorney general has reason to believe have been charged with or committed a serious criminal offense in another country.

Expediting Removal of Lawful Permanent Residents. Section 504 of the bill provides for the summary removal, with no discretionary relief available and without a hearing, of LPRs as well as other noncitizens who have been convicted of a controlled substance offense, a firearms offense, an aggravated felony, or certain other offenses. The provision bars federal habeas corpus review of such orders by federal district courts, reduces from 30 days to 14 days the time to seek judicial review in the court of appeals of such orders, and limits the issues in such an appeal to determining (1) whether the individual is an alien, and (2) whether the individual is subject to a final judgment of conviction for one of the specified categories of offenses.

Prohibiting Stays of Removal in Most Cases. Section 504(d) of the bill would amend section 242(f)(2) of the Immigration and Nationality Act to make that provision's stringent standard for granting injunctions of removal orders applicable to the authority of the federal courts to stay removal pending their judicial review of removal orders. This seeks to reverse the rulings of four courts of appeals that have found that sec. 242(f)(2) does not apply to such stays. Mohammed v. Reno, 309 F.3d 95 (2d Cir. 2002); Beijani v. INS, 271 F.3d 670 (6th Cir. 2001); Andreiu v. Ashcroft, 253 F.3d 477 (9th Cir. 2001) (en banc); Lal v. Reno, 2000 WL 831801 (7th Cir. June 26, 2000) (unpublished); but see Weng v. Attorney General, 287 F.3d 1335 (11th Cir. 2002). In rejecting the interpretation that this bill would enact, one court noted that "this would effectively require the automatic deportation of large numbers of people with meritorious claims, including every applicant who presented a case of first impression." Andreiu, 253 F.3d at 482.

Allowing Removals to Countries with No Government. Section 506 of the bill would allow the attorney general to direct the removal of a noncitizen to another country or region, even where the removal would, under the current language of INA sec. 241(b), be considered impracticable, inadvisable, or impossible. The provision allows such removal "regardless of whether the country or region has a government, recognized by the United States or otherwise." This provision is clearly intended to overrule the recent injunction of removals to Somalia (for more regarding this injunction, see "District Court Enjoins Removals to Somalia," p.10).