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Beware of Indefinite Detention under the USA PATRIOT Act
by Cyrus D. Mehta

The USA Patriot Act grants unprecedented new powers to the Attorney General to detain any noncitizen he certifies as engaging in terrorist activity or is a threat to national security.

Originally, the bill proposed by Attorney General Ashcroft would have granted him virtually untrammeled authority to detain indefinitely any noncitizen he certified as a threat to national security. There would have been no time limit on such detention, and the basis of certification could not be reviewed by any court.

The USA Patriot Act, on the other hand, ostensibly contains a safeguard: a seven-day limit on detention without charge. Unfortunately, this article will show that this safeguard is not adequate.

Under the USA Patriot Act, the Attorney General must have only a “reasonable ground to believe that a noncitizen is either engaged in terrorist activity or other activity that endangers the national security.” The noncitizen is provided with no right to review the evidence or allowed to rebut it. The only challenge is therefore a habeas corpus petition in a federal court.

While the person certified must be charged within seven days, he or she may be charged for an offence that could have no relationship to the alleged activity that formed the basis of certification. The charge could be for an unrelated immigration violation or for a minor criminal offence. Thus, one who has been certified may be charged for a technical immigration violation within seven days even though he or she is legally in the US.

For example, it is a deportable offence for a legal noncitizen who has not notified the INS of each change of address within ten days from the date of such change under Sections 237 and 265(a) of the Immigration and Nationality Act (INA). Most people do not notify the INS of a change of address or even possess knowledge of this requirement. In fact, the INS has no procedure for accepting or recording such changes of address. Taken to its logical extreme, the Attorney General, under the new law, could charge a lawful permanent resident for not having notified the INS about a change of address in order to keep this person indefinitely detained after certification.

Even prior to the enactment USA Patriot Act, the INS already had extremely broad sweeping powers to detain a noncitizen. Hundreds of noncitizens have been detained based on existing laws.

For instance, Section 287 of the INA allows the INS to make a warrantless arrest where the individual is likely to escape before a warrant can be obtained for his arrest. The implementing regulation, 8 CFR § 287.3(d), once mandated that the INS issue a warrant within 24 hours of such an arrest. On September 20, 2001, the time period was increased from 24 to 48 hours, and for a reasonable period of additional time “in the event of emergency or other extraordinary circumstances.”

This rule is even more sweeping than the USA Patriot Act, as it does not provide for a seven day period under which a noncitizen must be charged. Therefore, if any noncitizen is not certified as a terrorist, he or she can theoretically be indefinitely detained without charge under 8 CFR § 287.3(d).

It is hoped that these sweeping detention powers would not be abused. While the rest of the provisions of the USA Patriot Act will expire, the indefinite detention provisions remain a permanent feature. The new law does not provide guidelines on what process the Attorney General must follow in making and reviewing the decision to certify an individual as a suspected terrorist. The federal courts, therefore, will have an important role in reviewing and setting standards for the certification process, as well as the extent of evidence the courts will be allowed to review or whether the detainees or their lawyers will have full access to this evidence.

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