THE UNITING AND STRENGTHENING AMERICA BY PROVIDING APPROPRIATE TOOLS REQUIRED TO INTERCEPT AND OBSTRUCT TERRORISM ACT OF 2001 ("USA PATRIOT ACT")

The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 ("USA PATRIOT Act")

Written by Henry J. Chang

As a result of the terrorist attacks, which took place on September 11, 2001, Congress passed the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 ("USA PATRIOT Act"), Pub. L. No. 107-56, 115 Stat. 272. It was signed by the President on October 26, 2001. The most significant provisions are summarized below.

Enhanced Immigration Provisions

Section 411 - Definitions Relating to Terrorism

Section 411 adds new grounds of inadmissibility under INA §212(a)(3)(B) for representatives of foreign terrorist organizations or any group that publicly endorses acts of terrorism, and the spouses and dependent children or aliens who are inadmissible under any of the terrorism-related grounds. It also makes any fundraising, solicitation for membership, or material support (even for humanitarian projects) of groups that are designated terrorist organizations a ground of deportation without regard to whether such activities are in furtherance of actual terrorist activity. The Secretary of State is given unreviewable authority to designate any group (foreign or domestic) as a terrorist organization, merely upon publication of notice in the Federal Register. It also makes solicitation of funds or other material support non-designated terrorist groups a ground of deportation unless the person can prove that he "did not know, or should not reasonably have known, that the solicitation would further the organization's terrorist activity."

Section 412 - Mandatory Detention of Suspected Terrorists; Habeas Corpus; Judicial Review

Section 412 adds the new INA §236A, which allows for the mandatory detention of suspected terrorists. INA §236A(a)(3) provides that the Attorney General or the Deputy Attorney-General (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 or has committed a terrorist activity.

Certified persons shall remain in custody irrespective of any relief from removal for which they may be eligible or have been granted. If the person is finally determined not to be removable, they may no longer be detained under this provision.

The immigration service may detain a suspected terrorist alien for seven days before bringing immigration or criminal charges. Aliens not charged within seven days must be released.

Every six months, the Attorney General must review the detention of any person who is detained solely under INA §236A, who has not been removed, and whose removal is unlikely in the reasonably foreseeable future. Continued detention is allowed only upon showing that the "release of the alien will endanger the national security of the United States or the safety of the community or any person."

The Attorney General must also review the certification of any person made under INA §236A every six months. If the Attorney General determines that the certification should be revoked, the alien may be released on such conditions as the Attorney General deems appropriate, unless such release is otherwise prohibited by law. Every six months, the alien may also request in writing that the Attorney General reconsider the certification and may submit documents or other evidence in support of that request.

Any actions taken under new INA §236A may only be reviewed by habeas corpus proceedings. This section allows habeas review of both the decision to certify a noncitizen and the actual detention itself. A habeas corpus proceeding may be started in any district court, the U.S. Court of Appeals for the District of Columbia Circuit, or the Supreme Court. Appeals are available only to the D.C. Circuit.

Section 414 - Visa Integrity and Security

Section 414 expresses the sense of Congress that the Integrated Entry and Exit Data System (Section 110 of IIRIRA) should be fully implemented at all ports of entry "with all deliberate speed and as expeditiously as possible." Development of the system will focus on the use of biometric technology and tamper resistant documents. The system must also interface with law enforcement databases to identify and detain individuals who pose a threat to the national security of the United States.

Section 416 - Foreign Student Monitoring Program

Section 416 required the full implementation of the Foreign Student Monitoring Program, previously established by Section 641(a) of IIRIRA, by January 1, 2003. The program is expanded to include all educational institutions that are approved to receive foreign students (i.e. flight schools, language training schools, and vocational schools).

Section 417 - Machine Readable Passports

Under the previous INA §217(a)(3), nationals who are eligible for visa-exemptions under the Visa Waiver Program were required to have a valid unexpired machine-readable passport when seeking admission under the program after October 1, 2007. Section 417 moves up this deadline to October 1, 2003. However, the Secretary of State may waive this requirement upon finding that the program country is moving ahead in its efforts to make such passports available and has taken appropriate measures to protect against misuse of its passports that are not machine-readable.

Prevention of Consular Shopping

Section 418 provides that the Secretary of State shall review how consular officers issue visas to determine if consular shopping is a problem.

Preservation of Immigration Benefits for Victims of Terrorism

Section 421 - Special Immigrant Status

Section 421 provides special immigrant status to any alien whose family-based or employment-based immigrant petition, fiancé visa, or application for labor certification was revoked or terminated (or otherwise rendered null) due to the death, disability or loss of employment (due to physical damage or destruction of the business) of the petitioner, applicant or beneficiary as a direct result of the terrorist attacks. Relief is also available to the spouses and dependent children who were either accompanying the principal applicant or following to join the principal 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 either of the parents were U.S. citizens or lawful permanent residents. Finally, in determining eligibility for an immigrant visa, the public charge grounds of inadmissibility shall not apply to these special immigrants.

Section 422 - Extension of Filing or Reentry Deadlines

A person who was lawfully present in the United States as a nonimmigrant on September 10, 2001, and who was adversely affected as a direct result of terrorist activity (i.e. prevention of timely filing, departure, or return because of office closures, mail or courier service delays, airline flight cessations or delays, and other closures, cessations, or delays affecting case processing or travel needed to satisfy legal requirements, as applicable), is entitled to the following:

If disabled, he or she may remain in the same nonimmigrant status until the date that status would normally end, or one year after the onset of the disability, whichever is later;

If the alien is the spouse or child of such a nonimmigrant who died or was disabled, he or she shall remain in status until the date that the principal nonimmigrant's status would normally have ended, or one year after the death or the onset of the disability, whichever is later;

If the alien is the disabled nonimmigrant or spouse of the disabled or deceased nonimmigrant, he or she shall be provided an employment authorization document ("EAD"), within 30 days of such a request, for the period in lawful nonimmigrant status;

If the alien was prevented from filing a timely application for extension or change of nonimmigrant status, he or she shall have 60 days more to file after the due date; and

If the alien was prevented from making a timely departure from the United States, he or she shall not be considered to have been unlawfully present from September 11, 2001, until the date if departure if the alien is departing by November 11, 2001

An alien (and his or her spouse and dependent children) who was in a lawful nonimmigrant status at the time of the attacks but not in the U.S. at the time, and was prevented from returning to the United States 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 the current law, winners of the fiscal year 2001 diversity lottery were required to enter using an immigrant visa or adjust status by September 30, 2001. Section 422 provided that such an alien could enter the United States or adjust status until April 1, 2002, if the alien could establish that he or she was prevented from doing so by September 30, 2003, as a direct result of the terrorist attacks. If the winner of the 2001 diversity lottery died as a direct result of the terrorist attacks, the spouse and children of the alien would still be eligible for permanent residence under the program until June 30, 2002. If the visa quota for the 2001 diversity visa program is exceeded, the alien is to be counted under the 2002 program.

According to INA §221(c), an immigrant visa is valid only for six months. However, Section 422 provides that any immigrant visa that expired before December 31, 2001 would be extended until that date, if an alien was unable to enter the United States on a timely basis 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, 2001, the parole is extended for an additional 90 days, if the alien was unable to enter the United States prior to the expiration date as a direct result of the terrorist attacks.

In the case of an alien granted voluntary departure that expired between September 11, 2001 and October 11, 2001, the voluntary departure is extended for an additional 30 days.

Section 423 - Humanitarian Relief for Certain Surviving Spouses and Children

The current law provides that an alien who was the spouse of a United States citizen (and not then legally separated) for at least two years before the citizen died shall remain eligible for immigrant status as an immediate relative. This provision dispenses with the requirement that the surviving spouse have been married to the U.S. citizen for two years at the time of his or her death, if the citizen died as a direct result of the terrorist attacks. The alien must file a visa petition within two years after the citizen's death. The public charge grounds of inadmissibility do not apply to these petitions.

An alien who was the child of a United States citizen at the time he or she died as a direct result of terrorist activity shall remain an immediate relative, regardless of changes in age or marital status. The noncitizen child must file a visa petition for immediate relative classification within two years after the citizen's death. The public charge grounds of inadmissibility do not apply to these petitions.

A noncitizen spouse, child, or unmarried adult son or daughter who had been the beneficiary of an immigrant visa petition filed under the family-based second preference before September 11, 2001, continues to have the same status and priority date even though the petitioner died as a direct result of the terrorist attacks. A new petition does not have to be filed and the beneficiary may be eligible for deferred action and work authorization. Where the lawful permanent resident died without having filed a petition, the noncitizen relative, if present in the United States on September 11, 2001, may self-petition and be eligible for deferred action and work authorization. The public charge grounds of inadmissibility do not apply to these petitions.

The spouse or child or an alien who: (a) died as a direct result of the terrorist attacks, and (b) had previously gained lawful permanent residence (on the basis of an employment-based petition) or was an applicant for adjustment of status for an employment-based immigrant status, may have his or her application for adjustment of status adjudicated despite the death of that alien (if they applied for adjustment of status prior to the death). The public charge grounds of inadmissibility do not apply to these petitions.

Section 424 - Age-Out Protection for Children

Section 424 provides that an alien whose 21st birthday occurs in September 2001, and who is the beneficiary of a petition or application filed on or before September 11, 2001, shall be considered to remain a child for 90 days after the alien's 21st birthday. For an alien whose 21st birthday occurs after September 2001, the alien shall be considered to remain a child for 45 days after the alien's 21st birthday.

This provision appears to apply both to resident and nonimmigrant cases. In addition, eligibility for age-out protection does not require a relationship to the September 11th terrorist attacks. Any child who was about to turn 21 in September 2001 could benefit from this provision.

Miscellaneous Provisions

Section 1006 - Inadmissibility of Aliens Engaged in Money Laundering

Section 1006 amends INA §212(a)(2)(I) to provide that any person who a consular officer or the Attorney General knows, or has reason to believe, has engaged, is engaging, or will in engage in an offense relating to money laundering, is inadmissible. Aliens who are or who have been knowing aiders, abettors, assisters, conspirators, or colluders with others in a money laundering offense are also inadmissible.