The USA PATRIOT Act was intended to strengthen the national security of the United States and, among other purposes, improve the means by which terrorists may be removed from the country. It broadened the definition of terrorists subject to removal, granted a new power to the Attorney General to certify persons as terrorists and gave extensive authority to detain such persons.

The primary immigration statute, the Immigration and Nationality Act of 1952 (INA), as amended, had already barred the admission of any alien who has engaged in or incited terrorist activity, is reasonably believed to be carrying out a terrorist activity, or is a representative or member of a designated foreign terrorist organization. The USA PATRIOT Act added representatives of groups that endorse terrorism, prominent individuals who endorse terrorism and spouses and children of aliens who are deportable on terrorism grounds on the basis of activities occurring within the previous five years.

Removal Court

The INA establishes a "removal court," to be formed by five U.S. district judges from five different circuits. Removal court proceedings are confidential; therefore, a special panel of attorneys, who have clearance to classified information, represent the aliens against whom removal proceedings are brought.

Proceedings

Removal proceedings are initiated when the U.S. Attorney General files a confidential application with the removal court. The application must state:

  • The identity of the Department of Justice attorney who is making the application
  • That the Attorney General certifies that the application meets all requirements under the INA
  • The identity of the alien
  • That there is probable cause to believe that the alien is a terrorist, is physically present in the United States and that removal under the "regular" removal procedures for all other aliens would post a threat to the country's national security

A single judge from the removal court first looks at the application. The judge considers the application privately. In addition to the application itself, the judge may consider classified information and testimony from the hearing on the application. The judge will either approve or deny the requested order granting the application.

Removal Hearing

Any time an application for removal is filed, a speedy public hearing must be held. The alien named in the application must be given reasonable notice of the nature of the charges and the time and location of the hearing. The alien has various rights relative to the hearing: The rights to be present, to hire counsel, to introduce evidence and to examine witnesses. A record of the hearing must be kept.

Both the alien and the Department of Justice can request that specific witnesses be subpoenaed (ordered) to appear at the hearing. If the alien makes a showing that he or she can not afford to pay for the witness' attendance, the costs may be paid from an immigration fund.

The alien is not entitled to suppress evidence on the basis that it was unlawfully obtained. The government can seek protective orders and assert privileges against the disclosure of classified information as evidence. Classified information is handled very carefully at hearings, and it may be used only through an unclassified summary of the information. The alien does not have a right to hear classified evidence.

Both the alien and the government have the option to present oral arguments at the hearing. The ultimate burden of proof in the hearing falls on the government. To prevail, the government must show by a preponderance of the evidence that the alien is subject to removal because the alien is a terrorist.

Decision

The judge must issue a written decision containing a statement of facts and conclusions of law. If the removal judge determines that the government met its burden to show that the alien is a terrorist, the judge must order the alien to be detained and removed from the United States.

Appeals

The Attorney General and the alien may both seek a review of the final decision regarding a requested order of removal from the court of appeals. Review must be sought within 20 days of the judge's decision. Both the government and the alien may seek review of the Court of Appeals' decision by filing a writ of certiorari to the U.S. Supreme Court.

Custody and Release

Pending a hearing, the Attorney General may take the named alien into custody. If the alien is a permanent resident of the United States, however, the alien is entitled to a release hearing. The alien may be released from custody pending the removal hearing if the alien demonstrates that he or she is permanently admitted to the United States, is not likely to flee and will not endanger the national security.

After the hearing, if the decision is that the alien will not be removed, the alien is released. If the judge determines that the alien will be removed, the alien will be detained pending the outcome of any appeals.

Aliens in custody are entitled to the reasonable opportunity for visits from family and attorneys. The aliens also have the right to contact a diplomatic or consular official from their countries of citizenship.

Removal

Barring any treaty obligations to the contrary, the alien will be removed to the foreign country that the alien designates. If the alien refuses to select a country, the Attorney General and the Secretary of State may select any country that is willing to accept the alien. If no country will accept the alien, the alien may be detained in US custody. Continued efforts must be made to find a country willing to accept the alien.