Anti-Terrorism Legislation Becomes Law
Posted Nov 02, 2001

The final anti-terrorism bill has now passed both the House of Representatives ("House") and the U.S. Senate, and has been signed by President Bush on October 29, 2001. Therefore, it is now the law.

In our October 12, 2001 MurthyBulletin, we provided a detailed summary of the House bill, known as the PATRIOT Act of 2001. The final legislation combines the PATRIOT Act and the USA Act, which is the Senate version. The new Act is the "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism ("USA PATRIOT") Act of 2001.

Though the USA PATRIOT Act is less stringent than the original Bush Administration proposal, it nonetheless raises some constitutional concerns. Just how the U.S. Department of Justice and other government agencies will use the broad new powers given them by this law remains to be seen. Will the focus be on routing out terrorism or will thousands of harmless immigrants be swept up in the enforcement efforts? Before the passage of this law, reports from credible sources were already stating that over 700 immigrants had been detained - most on minor immigration violations. Prior to the September 11^th attacks, such people often would be placed in removal proceedings if detected. Generally they would not have been detained.

Here, we provide a description of some of the key provisions of USA PATRIOT:

Enforcement and Technology  Border patrol officers working the U.S. border with Canada will be tripled in number. The INS and the U.S. Department of State (DOS) will obtain access to the FBI's criminal database, and improvements will be made to the automated fingerprinting system. The foreign student monitoring system will also be expanded.

Certification and Detention of Suspected Terrorists  As in the prior House bill, a foreign national can be "certified" as a person involved in terrorism if there are reasonable grounds for believing that one is a terrorist. The definition of terrorist activity is quite broad. Even if a person provides support only for humanitarian projects of groups listed by the U.S. DOS as terrorist organizations, s/he could be deported on that basis. (However, there may be an exception if one supported humanitarian activities of such a group dating back to before it became designated a terrorist organization.) Certain types of speech can even be a ground for deportation. A group that has been declared a terrorist organization has no recourse for challenging that determination in court.
 
The Act requires the "certification" be made by the Attorney General (AG) or the Deputy AG - not by a lower level official. Once certified, one should be detained. The INS can detain an individual for a week before bringing charges. Those who are not charged within one week must be released. The detention and the ground for certification can be reviewed in federal court. In an improvement over the House PATRIOT bill such cases can be filed at the local U.S. District Court, not only the one in Washington, D.C. However, all appeals would be to the D.C. Circuit.

If one is placed in immigration proceedings and ends up being ordered removed (deported) from the U.S., existing law already allows INS to continue to detain that person until the deportation can be executed. However, the new law states that if the AG continues, based on reasonable grounds, to believe that the person is a terrorist, INS can continue detention even if that person is successful in obtaining relief from the Immigration Judge.

The AG has to review the individual’s certification every 6 months, as well as report to Congress on the use of the new certification and detention authority.

Multilateral Cooperation  The law allows certain confidential information to be shared with foreign governments for investigative purposes, on a case-by-case basis.

Humanitarian Immigration Relief for Family and Employment Based Victims of the Sept 11, 2001, Attacks  These provisions in the Act closely track those initially appearing in the House PATRIOT bill.

A person whose immigrant petition (family- or employment-based), fiancé/e visa or labor certification was nullified as a direct result of death, disability, or the destruction of the place of employment due to the events of September 11, 2001, may be able to qualify for the green card as a special immigrant. The relief extends to derivative beneficiaries of employment-based applicants who perished in the disaster, even if those family members are abroad and would be coming in to the U.S. up to two years hence. If a child lost both parents in the attacks, and both of the parents were U.S. citizens or green card holders, the grandparents can then be granted special immigrant status for the green card.

The USA PATRIOT Act would allow a lawful nonimmigrant disabled by the September 11 attacks to have an automatic extension of stay, along with his/her family members. If one planned to file for an extension or change of status but was unable to do so because of the attacks, the bill would provide a grace period. A similar grace period is provided for one who was unable to leave the U.S. at the conclusion of his/her stay. There are also certain extensions for lottery applicants who were otherwise required to enter the U.S. on the immigrant visa or have the adjustment of status approved by September 30, 2001. The validity of immigrant visas is also extended. For all of these extensions and grace periods it is necessary to show that the inability to leave, enter, file one's papers, etc. was a "direct result" of September 11th.

Foreign nationals who lost a U.S. citizen spouse or parent to death as a direct result of the terrorist attacks can be eligible under the bill to obtain the green card. Under pre-existing law such benefits extend to surviving spouses only if the couple was married for two years prior to the death. The new law waives that two-year period for these family members. If a permanent resident, petitioning for a spouse, son or daughter was killed in the attacks, the surviving relative could still get the green card under this bill. If the surviving relative was present in the U.S. and no petition was filed, the relative can petition on his/her own. These family members may also be able to receive employment authorization and deferred action (protection from deportation). Even after the death of the principal, derivative family members of certain employment-based green card beneficiaries can have their adjustment of status applications approved. There are several other relief provisions as well.

New Ground of Inadmissibility for Money Laundering  One who a Consular Officer or the AG finds to be engaging in money laundering activities is not admissible to the U.S. The U.S. Secretary of State is required to establish a watch list of known or suspected money launderers. Persons applying for visas or admission to the U.S. will be checked against the list.

Although there are several helpful provisions as outlined here, those concerned about the USA PATRIOT Act point out that it is so broad it may well violate the U.S. Constitution, in particular the guarantees of freedom of speech and freedom of association. Under the new law, a person could be jailed or deported for supporting even humanitarian projects of organizations that the U.S. Secretary of State designates as terrorist groups. Many non-U.S. citizens who are not terrorists could be detained indefinitely.

Obviously, the threat of terrorism is real and requires a serious response. But the government needs to look for ways of using existing laws more effectively; for example the utilization of technology to enhance intelligence-gathering efforts. Some of the new provisions are clearly necessary; for example, allowing INS and the DOS access to the FBI criminal database. But critics point out that some of the other measures may increase the potential for governmental overreaching and abuse of innocent immigrants.