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SECTION-by-SECTION SUMMARY IMMIGRATION PROVISIONS
PROPOSED ANTI-TERRORISM LEGISLATION
-The “PATRIOT” Act
Sec. 1. Short Title
This Act may be cited as the “the Provide Appropriate Tools Required to Intercept and Obstruct Terrorism (PATRIOT) Act of 2001.”
TITLE II-ALIENS ENGAGING IN TERRORIST ACTIVITY
Section 201: Changes in Classes of Aliens who Are Ineligible for Admission and Deportable Due to Terrorist Activity
This section expands the scope of terrorism-related activity that makes one deportable or inadmissible.
- Pure speech is a deportable offense only if it “is intended and likely to incite or produce imminent lawless actions”;
- Material support for humanitarian projects of groups that are listed on the Secretary of State’s list of designated terrorist organizations is a deportable offense;
- Material support for groups not on the list is only a deportable offense if the person “knows, or reasonably should know” that the support “would further a terrorist activity”.
- While the provisions are retroactive, certain limits on retroactivity are provided in cases where a person previously provided materials support to the humanitarian projects of a terrorist organization.
- The definition of “terrorist activity” is expanded to include not only the use of explosives or firearms, but any “other object” with intent to endanger the safety of one or more individuals. This definition is in addition to the existing definition, which already includes highjacking, sabotage, seizing or detaining a person to compel a third party to do something, etc.
Section 202. Changes in Designation of Foreign Terrorist Organizations
This section clarifies that the Secretary of State can re-designate an organization as a terrorist organization and can revoke a designation or re-designation.
Section 203. Mandatory Detention of Suspected Terrorists; Habeas Corpus; Judicial Review
This section expands the mandatory detention powers of the Attorney General. It:
- Provides that the Attorney General or the INS Commissioner (with no power of delegation) may certify an alien as a terrorist if they have reasonable grounds to believe that the alien is a terrorist (under the expanded definition in Sec. 201);
- Requires mandatory detention of a person so certified;
- Allows the INS to detain an suspected terrorist alien for seven days before bringing immigration or criminal charges;
- Provides habeas review of the detention and the basis for the certification;
- Limits judicial review to habeas review in the U.S. District Court for the District of Columbia;
- Allows continued detention after a person is found removable and is granted relief from removal, if the Attorney General continues to certify that there are reasonable grounds to believe that the person is a terrorist (or involved in terrorist activity, as broadly defined above in Section 201);
- Requires that the Attorney General must submit a report to Congress on the use of this section every six months.
Section 204. Multilateral Cooperation Against Terrorists
This section 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 current law, the records of the State Department pertaining to the issuance of or refusal to issue visas to enter the U.S. are confidential and can be used only in the formulation and enforcement of U.S. law.
Section 205. Changes in Conditions for Granting Asylum and Asylum Procedures
This section provides that confidential information from an asylum applicant can be disclosed to a foreign government, by the State Department, if the Attorney General has reasonable grounds to believe that the alien is a terrorist. This breach of confidentiality is for the stated purpose of allowing the US to gather and present evidence that would bar the person from being granted asylum. Confidentiality may not be breached if the ground for the asylum application is that the applicant fears persecution because the home government considers him/her to be a terrorist.
Section 206. Protection of Northern Border
This section authorizes the appropriation of funds necessary to triple the number of Border Patrol personnel in each State along the northern border and the number of INS inspectors at each port of entry along the northern border. The Act also authorizes $50 million to the INS for purposes of making improvements in technology for monitoring the northern border and acquiring additional equipment at the northern border.
Section 207. Requiring Sharing by the Federal Bureau of Investigation of Certain Criminal Record Extracts with other Federal Agencies in Order to Enhance Border Security
This section provides that the Justice Department shall provide to the State Department and the INS access to the criminal history record information contained in the National Crime Information Center’s Interstate Identification Index, Wanted Persons File, and to any other files maintained by the NCIC that may be mutually agreed upon by the Justice Department and the official to be provided access, for purposes of determining whether a visa applicant or an applicant for admission has a criminal history record.
Subtitle B- Preservation of Immigration Benefits for Victims of Terrorism
Section 211. Special Immigrant Status
This section allows the Attorney General to provide 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) as a direct result of the death, disability or loss of employment (due to the physical damage or destruction of the business) from the terrorist attacks on September 11. 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 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.
Section 212. Extension of Filing or Reentry Deadlines
This section provides that an alien who was legally in a nonimmigrant status and was disabled as a direct result of the terrorist attacks on September 11 (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 September 11, 2002. 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 the alien was prevented from so filing as a direct result of the terrorist attacks. Also, 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 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 Act 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. Also, 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. 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 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 an additional 30 days.
Section 213. 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.
Section 214. “Age-Out” Protection for Children
This section 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.
Section 215. Temporary Administrative Relief
This section provides 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.
Section 216. Evidence of Death, Disability, or Loss of Employment
The Attorney General shall establish appropriate standards for evidence demonstrating that a death, disability, or loss of employment due to physical damage to, or destruction of, a business, occurred as a direct result of the terrorist attacks on September 11. The Attorney General is not required to promulgate regulations prior to implementing Subtitle B.
Section 217. No Benefit to Terrorists or Family Members of Terrorists
No benefit under Subtitle B shall be provided to anyone culpable for the terrorist attacks on September 11 or to any family member of such an individual.
Section 218. Definitions
The term “specified terrorist activity” means any terrorist activity conducted against the Government or the people of the U.S. on September 11, 2001.
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Carl Shusterman served as an INS Trial Attorney (1976-82) before opening a firm specializing exclusively in US immigration law. He is a Certified Specialist in Immigration Law who has testified as an expert witness before the US Senate Immigration Subcommittee. Carl was featured in the February 2018 edition of SuperLawyers Magazine.