(A)  Elements of the Ground of Deportation.  Any noncitizen who has engaged, is engaged, or at any time after admission engages in any terrorist activity as defined in INA § 212(a)(3)(B)(iv), 8 U.S.C. § 1182(a)(3)(B)(iv)[1485] is deportable.[1486]  NOTE: No conviction is required to establish this ground of deportation.  This ground of deportation is somewhat controversial.[1487]

 

            In the “PATRIOT” Act, Congress also made deportable any fundraising, solicitation of membership, or material support (even for humanitarian projects) of groups that are designated terrorist organizations by the Secretary of State (without regard to whether such activities were in furtherance of actual terrorist activity).[1488]  It also made deportable solicitation of funds or other material support for groups not officially designated as “terrorist organizations” unless the person can prove that s/he “did not know, and should not reasonably have known, that the solicitation would further the organizations’ terrorist activity.”[1489]

[1485] INA § 212(a)(3)(B)(iii), 8 U.S.C. § 1182(a)(3)(B)(iii) provides: “[T]he term ‘terrorist activity’ means any activity which is unlawful under the laws of the place where it is committed (or which, if committed in the United States, would be unlawful under the laws of the United States or any State) and which involves any of the following:  (I)  The highjacking or sabotage of any conveyance (including an aircraft, vessel, or vehicle).  (II)  The seizing or detaining, and threatening to kill, injure, or continue to detain, another individual in order to compel a third person (including a governmental organization) to do or abstain from doing any act as an explicit or implicit condition for the release of the individual seized or detained).   (III)  A violent attack upon an internationally protected person (as defined in section 1116(b)(4) of Title 18) or upon the liberty of such a person.  (IV)  An assassination.  (V)  The use of any — (a) biological agent, chemical agent, or nuclear weapon or device, or (b) explosive or firearm (other than for mere personal monetary gain), [all of the above (I) through (V)] with intent to endanger, directly or indirectly, the safety of one or more individuals or to cause substantial damage to property.”

[1486]  INA § 237(a)(4)(B), 8 U.S.C. § 1227(a)(4)(B). 

[1487] See Aubrey Glover, Comment, Terrorism: Aliens’ Freedom of Speech and Association under Attack in the United States, 41 Duq. L. Rev. 363 (Winter 2003); Regina Germain, Rushing to Judgment: The Unintended Consequences of the USA PATRIOT Act for Bona Fide Refugees, 16 Geo. Immigr. L. J. 505 (Winter 2002); Jennifer C. Evans, Comment, Hijacking Civil Liberties: The USA PATRIOT Act of 2001, 33 Loy. U. Chi. L. J. 933 (Summer 2002); Marc Van Der Hout and Trina Realmuto, A Patriot Act Problem: Removability Based on Providing Financial or Material Support, 2002 NIP-ICAN 1 (Feb. 22, 2002).

[1488] Except as otherwise provided in P.L. 107-56, § 411(c), 115 Stat. 272 (October 26, 2001), the amendments made by P.L. 107-56, § 411, 115 Stat. 272 (October 26, 2001) took effect on the date of the enactment of the USA PATRIOT Act, i.e. October 26, 2001, and apply to (1) actions taken by a noncitizen before, on, or after such date; and (2) all noncitizens, without regard to the date of entry or attempted entry into the United States (a) in removal proceedings on or after such date (except for proceedings in which there has been a final administrative decision before such date); or (b) seeking admission to the United States on or after such date. P.L. 107-56, § 411(c)(1), 115 Stat. 272 (October 26, 2001).

[1489] USA PATRIOT Act § 411.

Third Circuit

JUDICIAL REVIEW - JURISDICTION LIMITATION - TERRORIST GROUNDS NOT LISTED AS BAR
McAllister v. United States Atty Gen., 444 F.3d 178 (3d Cir. Apr. 10, 2006) (INA 237(a)(4)(B) ground of removal based upon terrorism is not listed in INA 242(a)(2)(C), and therefore does not bar court from judicial review).
http://caselaw.lp.findlaw.com/data2/circs/3rd/034513p.pdf

Fifth Circuit

INADMISSIBILITY - TERRORISM
The REAL ID Act expands the terrorism ground of inadmissibility. INA 212(a)(3)(B), as amended by the Real ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231 (May 11, 2005). There are very serious constitutional problems with the expanded terrorism ground of inadmissibility, since the law removes any link between what the applicant for admission did and any actual terrorist activity. It also expands the ground of inadmissibility to cover anyone who endorses or espouses terrorist activity, or who persuades others to do so, or supports terrorist organization, even if the activity does not actually contribute to any actual terrorist activity. These amendments apply retroactively, encompassing even acts occurring before an organization was designated as a terrorist organization.

Ninth Circuit

RELIEF - 212(C) WAIVER - TERRORIST ACTIVITY - CONDUCT BASED
Kelava v. Gonzales, ___ F.3d ___ (9th Cir. Jan. 12, 2006) (repeal of 212(c) relief not retroactively applied to noncitizen deportable under INA 237(a)(4)(B), 8 U.S.C. 1227(a)(4)(B) [terrorist activity], even though conviction pre-dated repeal, since the terrorist ground of deportation is conduct based and therefore there can be no settled expectations upset by entering a plea).
http://caselaw.lp.findlaw.com/data2/circs/9th/0373689oap.pdf

TERRORISM - PROHIBITION ON FINANCIAL SUPPORT
United States v. Afshari, 426 F.3d 1150 (9th Cir. Oct. 20, 2005) (8 U.S.C. 1189, statute prohibiting financial support to organizations designated as "terrorist" is constitutional, despite fact that defendants are precluded from collaterally attacking the designation).

Other

DEPORTATION - TERRORISM
The Real ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231 (May 11, 2005), provides that the terrorism ground of inadmissibility under INA 212(a)(3)(B), now also constitutes a ground of deportation as well, a very significant change in the law. There are very serious constitutional problems with the expanded terrorism ground of inadmissibility, since the law removes any link between what the applicant for admission did and any actual terrorist activity. It also expands the ground of inadmissibility to cover anyone who endorses or espouses terrorist activity, or who persuades others to do so, or supports terrorist organization, even if the activity does not actually contribute to any actual terrorist activity. These amendments apply retroactively, encompassing even acts occurring before an organization was designated as a terrorist organization.