Overview of New Anti-Terrorism Law
In response to terrorist attack of September 11, President Bush signed a new anti-terrorism bill into law on October 29, 2001.
When initially proposed by the administration, many were concerned that the law would strengthen law enforcement agencies at the expense of peoples’ rights. With each successive version of the bill the powers granted to the Attorney General to detain non-citizens have been less sweeping. The final law reflects some of the concerns of immigrants rights and civil liberties groups. The law also grants extremely generous benefits to victims and their family members.
This article will highlight the most important immigration related provisions of the law: 1. Mandatory Detention of Suspected Terrorists and 2. Preservation of Immigration Benefits for Victims of Terrorism.
1. Mandatory Detention Of Suspected Terrorists
The law authorizes the Attorney General to take into custody any alien whom the Attorney General has reasonable ground to believe that he or she has been involved in terrorist activity or in any other activity that endangers the national security of the United States. The Attorney General may delegate the certification authority only to the Deputy Attorney General. The Deputy Attorney General may not delegate this authority to anyone else. Thus, the authority to certify an alien as a suspected terrorist can only be done by the Attorney General or the Deputy Attorney General.
Once the alien is certified, this person has to be detained. However, the Attorney General must charge the alien with either a removal offence or a criminal offence not later than seven days from the commencement of such detention. If the alien is not charged within seven days, the Attorney General shall release him or her. However, the alien can be kept indefinitely detained if he or she is charged within seven days. This is true even if the alien is eligible for removal or has been granted relief from removal. If the alien is finally determined not to be removable, detention shall terminate.
If the alien has been ordered removed but cannot be removed to another country, this individual may be detained for additional periods of up to six months only if the release of the alien will threaten the national security of the United States or the safety of the community or any person.
The law requires the Attorney General to review the certification every six months. The alien may request every six months in writing that the Attorney General reconsider the certification and may submit documents or other evidence in support of that request.
If an alien is not released, he or she can seek judicial review through habeas corpus proceedings. The habeas corpus action must be filed with the Supreme Court of the United States, any justice of the Supreme Court, any circuit judge of the Court of Appeals for the District of Columbia Circuit, or any district court having jurisdiction to entertain it. However, any appeal of a lower court’s decision can only be taken to the US Court of Appeals for the District of Columbia Circuit.
2. Preservation of Immigration Benefits for Victims of Terrorism
A. Special Immigrant Status
The new law provides special immigrant status to any alien whose family or employment based immigrant petition, fiancé visa, or application for labor certification was revoked or terminated (or otherwise rendered null) due to the death, disability or loss of employment (due to the physical damage or destruction of the business) of the petitioner, applicant, or beneficiary as a direct result of the terrorist attacks.
The relief is also available to the spouses and children who were either accompanying the principle applicant, or who are following to join the principle applicant up to two years later (September 11, 2003).
The grandparents of any child whose parents died in the attacks may also qualify for this status if either of the parents were U.S. citizens or legal permanent residents.
In determining eligibility for an immigrant visa, the public charge grounds of inadmissibility shall not apply to these special immigrants.
B. Extension of Filing or Reentry Deadlines·
The new law further provides that an alien who was legally in a nonimmigrant status and was disabled as a direct result of the terrorist attacks (and his or her spouse and children) may remain lawfully in the U.S. (and receive work authorization) until the later of the date that his or her status normally terminates or one year after the death or onset of disability.
Such status is also provided to the nonimmigrant spouse and children of an alien who died as a direct result of the terrorist attacks.
An alien who was lawfully present as a nonimmigrant at the time of the terrorist attacks will be granted 60 additional days to file an application for extension or change of status if he or she was prevented from doing so as a direct result of the terrorist attacks.
An alien who was lawfully present as a nonimmigrant at the time of the attacks but was then unable to timely depart the U.S. as a direct result of the attacks will be considered to have departed timely if the departure occurs before November 11, and will not be considered to have accrued unlawful presence during that period.
An alien (and his or her spouse and children) who was in a lawful nonimmigrant status at the time of the attacks but not in the U.S. at that time, and was prevented from returning to the U.S. in order to file a timely application for an extension of status as a direct result of the terrorist attacks will be given 60 additional days to file an application and will have his or her status extended 60 days beyond the original due date of the application.
Under current law, winners of the fiscal year 2001 diversity visa lottery must enter the U.S. or adjust status by September 30, 2001. The new law provides that such an alien may enter the U.S. or adjust status until April 1, 2002, if the alien can establish that he or she was prevented from doing so by September 30 as a direct result of the terrorist attacks. If the visa quota for the 2001 diversity visa program has already been exceeded, the alien shall be counted under the 2002 program.
If a winner of the 2001 lottery died as a direct result of the terrorist attacks, the spouse and children of the alien shall still be eligible for permanent residence under the program until June 30, 2002. The ceiling placed on the number of diversity immigrants shall not be exceeded in any case.
Any immigrant visa that expires before December 31, 2001 shall be extended until that date, if an alien was unable to timely enter the U.S. on the visa as a direct result of the terrorist attacks.
In the case of an alien who was granted parole that expired on or after September 11, if the alien was unable to enter the U.S. prior to the expiration date as a direct result of the terrorist attacks, the parole is extended for an additional 90 days.
In the case of an alien granted voluntary departure that expired between September 11 and October 11, 2001, voluntary departure is extended for an additional 30 days.
C. Humanitarian Relief for Certain Surviving Spouses and Children
Current law provides that an alien who was the spouse of a U.S. citizen for at least two years before the citizen died shall remain eligible for immigrant status as an immediate relative. This also applies to the children of the alien. This section provides that if the citizen dies as a direct result of the terrorist attacks, the two-year requirement is waived.
If an alien spouse, child, or unmarried adult son or daughter had been the beneficiary of an immigrant visa petition filed by a permanent resident who died as a direct result of the terrorist attacks, the alien will still be eligible for permanent residence. In addition, if an alien spouse, child, or unmarried adult son or daughter of a permanent resident who died as a direct result of the terrorist attacks was present in the U.S. on September 11 but had not yet been petitioned for, the alien can self-petition for permanent residence. These family members may be eligible for deferred action and work authorization.
This section further provides that an alien spouse or child of an alien who 1) died as a direct result of the terrorist attacks and 2) was a permanent resident (petitioned-for by an employer) or an applicant for adjustment of status for an employment-based immigrant visa, may have his or her application for adjustment adjudicated despite the death (if the application was filed prior to the death).
The grounds of inadmissibility related to public charge shall not apply to an applicant for permanent residency under this section.
D. "Age-Out" Protection for Children
The new law provides that an alien whose 21st birthday occurs this September and who is a beneficiary for a petition or application filed on or before September 11 shall be considered to remain a child for 90 days after the alien's 21st birthday. For an alien whose 21st birthday occurs after this September, the alien shall be considered to remain a child for 45 days after the alien's 21st birthday.
E. Temporary Administrative Relief
The law also has a catch-all provision. It states that temporary administrative relief may be provided, for humanitarian purposes or to ensure family unity, to an alien who was lawfully present on September 10, and who was on that date the spouse, parent or child of someone who died or was disabled as a direct result of the terrorist attacks, and is not otherwise entitled to relief under any other provision of Subtitle B.
About The Author
Cyrus D. Mehta, a graduate from Cambridge University and Columbia Law School, practices immigration law in New York City. He is a trustee of the American Immigration Law Foundation and recipient of the 1997 Joseph Minsky Young Lawyers Award. He is also Chair of the Immigration & Nationality Committee of the Association of the City Bar of New York. He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted at 212-686-1581 or firstname.lastname@example.org