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Immigration and the USA PATRIOT Act

The USA PATRIOT Act has many provisions that directly impact non-U.S. citizens, even those who are long-term lawful permanent residents. Some of these provisions provide new grounds for deportation (evicting a person from the U.S.). Others provide new grounds for inadmissibility (not admitting someone who is entering the U.S., even if he or she is a lawful permanent resident returning from a brief trip out of the country, such as going to dinner in Tijuana), and others provide for up to seven days of detention without the filing of any criminal or immigration charges.

Some of the Act's provisions jeopardize First Amendment rights to freedom of speech and political association by denying entry to non-citizens based on ideology; pursuant to other provisions, non-citizens will experience a further erosion of their due process rights in mandatory detention and deportation.

Sweeping definition of 'terrorism' and 'terrorists'

Section 411 of the USA PATRIOT Act greatly expands the class of immigrants who can be removed on terrorism grounds. Although the term "terrorist activity" is commonly understood to include only premeditated and politically-motivated violence targeted against a civilian population, Section 411 uses "terrorist activity" to include any crime that involves the use of a "weapon or dangerous device (other than for mere personal monetary gain)." Under this broad definition, an immigrant who swings a bat at an abusive spouse may be subject to removal as a "terrorist."

Other definitional changes that broaden the grounds for removal include:

  • the amended definition of "terrorism" includes being "engaged in any other activity that endangers the national security of the United States" (Section 412). Does drug trafficking "endanger the national security of the United States"? Some would argue that it does.
  • the term "engage in terrorist activity" has been expanded to include soliciting funds for, soliciting membership for, and providing material support to, a "terrorist organization," even when that organization has legitimate political and humanitarian ends and the non-citizen seeks only to support these lawful ends. Section 411 would thus permit guilt to be imposed solely on the basis of political associations protected by the First Amendment.
  • the term "terrorist organization" is no longer limited to organizations that have been officially designated as terrorist by publication in the Federal Register. Section 411 includes as "terrorist organizations" groups that have never been designated as terrorist if they fall under the loose criterion of "two or more individuals, whether organized or not," which engage in specified terrorist activities. Thus it may be difficult for a person to know whether the U.S. government considers an organization as terrorist or not.

Indefinite mandatory detention of immigrants

Section 412 greatly expands the Attorney General's power to detain immigrants who are suspected of being removable on terrorist grounds. The Act provides that the Attorney General or Deputy Attorney General, with no power of delegation, may certify an alien as a terrorist if he has "reasonable grounds to believe" that a non-citizen is engaged in terrorist activities or other activities that threaten national security. The law requires mandatory detention of a person so certified. This certification is not reviewable. On this basis, the INS may detain such a suspected terrorist for seven days without bringing either immigration or criminal charges.

There is no requirement that indefinite detainees ever be informed of the evidence against them, or given a trial or hearing at which the government would have to produce evidence that the detainee is a terrorist. There is no requirement of proof beyond a reasonable doubt; the Attorney General need not even satisfy the immigration standard of clear, convincing, and unequivocal evidence.

Habeas corpus review is available under Section 412, but only under the law of the U.S. Court of Appeals for the D.C. Circuit, and all appeals are to that circuit only. However, this remedy is diminished by that fact that, in a habeas corpus proceeding, the government has no Sixth Amendment obligation to provide non-citizens with free counsel.

Although the Due Process Clause "applies to all 'persons' within the United States, including aliens, whether their presence is lawful, unlawful, temporary, or permanent," clearly the USA PATRIOT Act opens the door to rampant abuse for indefinite detention without proof of terrorist acts.

Whatever happened to the First Amendment?

Section 411 of the Act poses an ideological test for entry into the United States that takes into consideration core political speech. Representatives of a political or social group "whose public endorsement of acts of terrorist activity the Secretary of State has determined undermines United States efforts to reduce or eliminate terrorist activities," and those persons' spouses and children as well, can no longer gain entry into the United States. Entry is also forbidden for non-citizens who have used their "position of prominence within any country to endorse or espouse terrorist activity," if the Secretary of State determines the speech "undermines United States efforts to reduce or eliminate terrorist activities." Thus, a speech discussing the currently popular topic "Why do they hate us?" might be considered an endorsement of terrorism.

Any fundraising, solicitation for membership, or financial contribution to groups designated as terrorist organizations, even for humanitarian projects, is a deportable offense, even if the contribution occurred before the group was so listed. So if an organization built a hospital for Palestinians, and later got designated on this list, anyone who ever contributed to that effort would be deportable.

Of even more concern, solicitation of funds or other material support for groups NOT officially designated as terrorist organizations is a deportable offense unless the person can prove that he "did not know, and should not reasonably have known, that the solicitation would further the organizations' terrorist activity." So, for example, anyone not a U.S. citizen who ever gave money to Greenpeace, or People for the Ethical Treatment of Animals, or any other group the U.S. later decides is terroristic, is deportable.

The danger of putting the burden of proof on the immigrant is greatly exacerbated by the vagueness of the definition of terrorist groups. For example, use of a "weapon or other dangerous device . . . to cause substantial damage to property" even where such damage created no danger of injury, is terrorism. World Trade Organization protesters who engage in minor vandalism, abortion foes involved in civil disobedience, Vieques protestors who tear down a fence - these acts of civil disobedience are all subject to this provision. Guilt by association is back.

Further, the rules apply retroactively to any "actions taken by an alien before, on, or after" the date of enactment, and in any immigration exclusion or deportation proceeding held after the date of enactment considering conduct prior to the passage of the Act. The one exception to the retroactivity provisions is if the organization was not a terrorist organization at the time of the alien's activity (Section 411 (B)(3)(A)).

Foreign Student Monitoring Program

The already-mandated Foreign Student Visa Monitoring Program is to be fully implemented and expanded to include all educational institutions that are approved to receive foreign students (Section 416). The FBI has approached many foreign students, especially from Muslim countries, since September 11. The government keeps track of foreign students, and a frequent pretext for detention is that a student is not in full compliance with the student status requirements - for example, by failing to carry a full-time class load or by dropping out of school - even when the student has no terrorist connections at all.

Foreign access to U.S. government records

Section 413 of the Act provides that State Department records can be provided to a foreign government on a case-by-case basis for the purpose of preventing, investigating, or punishing acts of terrorism. Under prior law, the records of the State Department pertaining to the issuance of or refusal to issue visas to enter the U.S. were confidential and could only be used in the enforcement of U.S. law.

We are aware of a Middle Eastern foreign national who was questioned by the FBI one day, only to find out that the following day the police in his home country went to his parents' home to ransack the house and question his parents. Communication between U.S. government officials and police in other (sometimes non-democratic) countries makes clients' fears about endangering their family members abroad well-founded.

Investigating persons entering or exiting the U.S.

Section 403 of the act provides for the Department of State and the Immigration and Naturalization Service to have access to FBI criminal history records in NCIC and other FBI databases for all visa applicants and applicants for admission to the U.S. Section 403 also mandates development and certification within two years of a technology standard that can be used to verify the identity of persons applying for a visa or seeking to enter the U.S.

The sins of the fathers: deporting spouses and children

Although Congress included lofty language condemning discrimination against Arab-Americans and Muslim-Americans - and an explicit finding that "[t]he concept of individual responsibility for wrongdoing is sacrosanct in American society, and applies equally to all religious, racial, and ethnic groups" (Section 102(a)(3)) - it then proceeded to provide for the deportation of the spouses and children of persons it deems terrorists (Section 411(a)(1)(A)). An exemption exists for the spouse or child who can prove that he or she "did not know or should not reasonably have known of the activity causing the alien to be found inadmissible" or who "has renounced the activity causing the alien to be found inadmissible" (Section 411 (a)(1)(D)(ii)).

Educating the Community

In the wake of the USA PATRIOT Act, Attorney General Ashcroft has announced new initiatives to seek out and deport immigrants, especially those from countries thought to breed terrorism, without considering that some decent, gentle people may have left those countries precisely to avoid the harshness such countries impose on their own citizens. Low level immigration violations - e.g., failure to report an address change, or minor criminal charges - will be pursued with bold and unapologetic racial, ethnic, and religious profiling.

After Attorney General Ashcroft announced his intention to interview 5,000 immigrants, mostly Muslim young men, I contacted the local Islamic Mosque and offered, jointly with an immigration lawyer, to come talk about an individual's rights when being questioned by the FBI or law enforcement. Our talks were well-received, much appreciated, and peppered with many good questions from the audience. The ACLU has a "Know Your Rights" pamphlet in English, Spanish, Arabic and, upon request, Farsi. The National Lawyers Guild also has such material in English, Spanish, Arabic, Farsi, Punjabi, Portugese, and will soon have pamphlets in Urdu and Turkish. In some communities, the local affiliate of the National Association of Criminal Defense Lawyers or the local ACLU affiliate, or both, are organizing to provide representation to persons questioned under this Ashcroft initiative.

In the wake of the USA PATRIOT Act, immigrants need more than ever to know about their rights.

— Tova Indritz

Tova Indritz, is a criminal defense lawyer in Albuquerque, New Mexico. She is recognized as a trial specialist by the New Mexico Board of Legal Specialization. Her criminal defense practice focuses on federal and state trials, appeals, and post-conviction remedies and on the immigration consequences of criminal convictions. She is the Chair of the Immigration Committee of the National Association of Criminal Defense Lawyers.

This article is reprinted and condensed from The Champion, the magazine of the National Association of Criminal Defense Lawyers. Reprinted with permission of the author.


Tova Indritz
715 Tijeras Avenue, NW
Albuquerque, NM 87102
(505) 242-4003
Fax (505) 242-3125

National Association of Criminal Defense Lawyers (NACDL)
1150 18th St., NW, Suite 950
Washington, DC 20036
(202) 872-8600
fax (202) 872-8690

The USA PATRIOT Act: What's So Patriotic About Trampling on the Bill of Rights?
by Nancy Chang ·

ACLU of New Mexico
P.O. Box 80915
Albuquerque, NM 87198
(505) 266-5915

American Civil Liberties Union
125 Broad Street, 18th Floor
New York, NY 10004
(212) 549-2585

National Lawyers Guild National Office
143 Madison Ave. 4th Floor
New York, New York 10016
(215) 679-5100

Contact the San Francisco chapter directly to receive copies of "Know Your Rights" in various languages - (415) 285-1055

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"For as adamant as my country has been about civil liberties during peacetime, it has a long history of failing to preserve civil liberties when it perceived its national security threatened. This series of failures is particularly frustrating in that it appears to result not from informed and rational decisions that protecting civil liberties would expose the United States to unacceptable security risks, but rather from the episodic nature of our security crises. But it has proven unable to prevent itself from repeating the error when the next crisis came along."
--Supreme Court Justice William Brennan
December 22, 1987

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