Analysis of Revised MATA
Sept 19, 2001
CERTIFICATION IN CONTEXT OF REMOVAL PROCEEDINGS
The Wed version (that is, the copy we have) deletes section 201 of the Tues version, which permitted non-reviewable "certification" by the AG and administrative (non-court), expedited removal of people "certified" by the AG to be an alien the INS "has reason to believe may further or facilitate acts of terrorism" as broadly defined, "or any other activity that endangers the national security of the United States."
The certification provision was egregious because it allowed the INS to remove even long-term LPRS based on "reason to believe" the person may facilitate any activity that endangers the national security. The certification provision as applied in removal proceedings is deleted in the Wed version (at least in the copy we have) but still appears in the mandatory detention section, described below.
DEFINITIONS RELATING TO TERRORISM
Grounds of Inadmissibility
The Wed version adds four grounds of inadmissibility, under the definition of "terrorist activities." One ground of inadmissibility is for a representative of "a political, social or other similar group whose public endorsement of acts of terrorist activity the Secretary has determined undermines US efforts to reduce or eliminate terrorist activities."
The second of inadmissibility under "terrorist activities" is for someone using a position of prominence within any country to endorse or espouse terrorist activity or persuade others to support terrorist activity in a way that the Sec of State has determined undermines US efforts to reduce terrorist activities.
The third new ground of inadmissibility is for the spouse or child of someone inadmissible under this section if the activity occurred within the last 5 years.
The fourth ground of inadmissibility is for any alien who the Secretary of State, in consultation with the AG, or vice versa, determines has been "associated" with a terrorist organization and intends "to engage solely, principally or incidentally," while in the US "in activities that could endanger the welfare, safety or security of the US."
As far as I can tell, all of these changes were not in the Tues version and are not in current law.
Definition of Engage in Terrorist Activity
Both versions reorganize the definition currently in the INA but do not appear to change it materially. The Wed version adds some specific examples of weapons to include "without limitation, chemical, biological and radiological weapons."
Definition of Terrorist Organization
Both Tues and Wed versions add a definition of "terrorist organization" to the INA. A terrorist organization includes an organization or a "significant subgroup" that "intends to commit or materially support .. terrorist activities," regardless of the organization's other activities.
The Tues version allowed noncitizens to show that the material support was only afforded after the organization and all of its significant subgroups had renounced and ceased terrorist activity. The Wed version changes this exception to permit only the Secretary of State, in consultation with the AG, to determine that that the organization shall not be considered a terrorist organization.
Designation of Foreign Terrorist Organization
Both the Wed and Tues versions make what appear to be technical corrections to INA section 219, on designation. The most substantive proposal is to forbid noncitizens from raising any question concerning the designation or redesignation of a terrorist organization as a defense or objection in any removal proceeding. Current law forbids raising this as a defense or objection in a criminal trial only.
MANDATORY DETENTION -- CERTIFICATION
The Wed version retains the certification provision for mandatory detention. Both versions mandate detention of people "certified" by the AG. The detention is indefinite and is mandatory irrespective of any relief to which the person may be eligible or granted.
The Wed version deletes the provision that the INS Commissioner, after consulting with the FBI director, recommends certification to the AG. The Wed version simply permits the AG to certify if he has "reason to believe" the alien may commit, further, or facilitate any other activity that endangers the national security of the US. The Wed version adds the word "commit" here -- Tues version only said, "may further or facilitate acts of terrorism"
The Wed version deletes the provision that the recommendation of the INS Commissioner was not reviewable by any court, because there is no recommendation to review.
In practice, as the FBI director and the INS Commission both work for the AG, the AG may still delegate this certification procedure to them, but the Wed version provides less process because there is no express requirement that the INS consult with the FBI or make a recommendation to the AG.
HABEAS CORPUS AND JUDICIAL REVIEW RESTRICTION
Both versions eliminate judicial review and habeas corpus review of the decision to detain or of "administrative proceedings brought" to detain people certified. Both versions provide that "the detention" of people certified is reviewable only by habeas corpus filed in the DC District Court. Exactly what this would mean in practice is open to debate, but it appears that anything leading up to the actual detention would be unreviewable, even by habeas corpus under 28 U.S.C. 2241, but the actual detention would be reviewable via habeas corpus in the DC District Court. This may be an attempt to preserve the constitutionality of these restrictions.
The Wed version leaves out the restriction, in the Tues version, that the habeas corpus petition be brought only after a final order of removal.
The Wed version retains the super-retroactivity provision of the Tues version, except as to "sections 205" (in the Wed version, concerning "multilateral cooperation" and "207" which is not in the copy we have. I suspect this is a drafting error and that these exemptions from the super retroactivity are supposed to refer to criminal law changes suggested in this proposal, which, under the ex post facto clause of the Constitution, cannot apply to past conduct.
CRIMINALIZING ENTRY OFFENSES
The Wed version (at least the copy we have) does not contain section 205 from the Tues version, adding new grounds for convictions for violating arrival or entry requirements.
About The Author
Nadine Wettstein is the Director, Legal Action Center, American Immigration Law Foundation.