AILA Backgrounder on the Draft “PATRIOT Act II”



Draft legislation prepared by the Department of Justice (DOJ) and recently leaked to the public contains a number of provisions that would diminish significantly the already compromised due process rights of lawful permanent residents and other non-citizens. Under the pretext of fighting terrorism and enhancing homeland security, this draft legislation, entitled the “Domestic Security Enhancement Act of 2003” (DSEA), proposes to, among other things: expand significantly the Immigration and Nationality Act’s expedited removal provisions, enhance criminal penalties for minor immigration violations, expand the Attorney General’s authority to bar and remove non-citizens from the U.S. on national security grounds, and authorize removal of aliens even to countries whose governments are not recognized by the United States.

While the Domestic Security Enhancement Act has not yet been introduced in Congress, the draft that was leaked indicates that the DOJ continues to explore ways to amplify its law enforcement and intelligence gathering authorities. Such authorities were expanded significantly in the wake of September 11 when Congress passed the PATRIOT Act. The DSEA would broaden the executive branch’s discretionary powers still more by further marginalizing the due process rights of non-citizens, while circumscribing judicial checks on executive branch activities.

The expansion of authority proposed by DOJ in this draft raises important concerns given that the House and Senate Judiciary Committees, charged with oversight of the DOJ, have criticized the agency for failing to clearly and adequately explain how it is implementing the PATRIOT Act’s provisions. Meaningful congressional review of the impact of the PATRIOT Act’s expansion of executive powers on the rights of immigrants is vitally necessary before embarking on an initiative to further shield executive decision-making from the checks and balances that are the hallmark of our system.

If enacted, the DSEA would trigger the following additional, unacceptable encroachments on the rights of foreign nationals in the U.S.:

  • Authorize Secret Arrests. Section 201 would prohibit disclosure of the names of individuals detained in the course of an international terrorism investigation, including individuals who have been detained for minor immigration violations. As we have seen already since the September 11 tragedy, huge number of foreign nationals have been arrested and detained under a veil of secrecy for minor immigration infractions that have nothing to do with terrorism simply because of their ethnic or religious background. Section 201 attempts to statutorily legitimate the secretive nature of these pretextual detentions.
  • Open Immigration Files to Local Police. Section 311 would undermine trust between police departments and immigrant communities by opening sensitive visa files to local police for the enforcement of complex immigration laws about which they often know little. This proposal has surfaced despite the fact that many local police departments already have announced their opposition to enforcing federal immigration laws.
  • Strip U.S. Citizenship for Associational Activities. Section 501 would expand the grounds for expatriating U.S. citizens to include joining, serving in, or providing material support to a designated terrorist organization. Rescission of U.S. citizenship could obtain even when the ‘material support’ is simply a lawful charitable donation to further the lawful activities of a designated organization. Targeted individuals potentially could find themselves consigned to indefinite detention as undocumented immigrants in their own country.
  • Enhance Criminal Penalties for Minor Immigration Violations. Section 502 would enhance criminal penalties for a variety of immigration offenses including such innocuous violations as failure to carry registration documents (e.g. a permanent resident alien card) and failure to notify INS of an address change within 10 days. The manifest incoherence of the address change policy is highlighted by the agency’s admitted lack of capacity to match the required notifications of address change to a person’s file.
  • Authorize Summary Deportations. Section 503 would authorize the Attorney General to deny admission to or remove any non-citizen whom he “has reason to believe” poses a danger to national security interests. Because of the judicial deference accorded to executive branch national security determinations, this unexacting “reason to believe” standard would provide the Attorney General with virtually unreviewable license to make subjective, adverse admission and removal determinations. Under this provision, even a lawful permanent resident could be denied entry to the U.S. or deported without having violated any law and without ever knowing the basis for the government action.
  • Subject Lawful Permanent Residents to Expedited Removal. Section 504 would expand the bases triggering expedited removal and for the first time would apply these procedures to lawful permanent residents for the first time. This provision would apply retroactively and cover offenses committed prior to enactment, thus unfairly undermining settled expectations. It also would limit appellate review of an expedited removal order while completely eliminating habeas corpus review. The unprecedented elimination of habeas corpus review is designed to insulate the Attorney General’s expedited removal decisions by preventing federal courts from correcting unlawful actions by immigration officers.
  • Reduce Time to Depart After Removal Order. Section 505 would clarify the continuing nature of the offense of failing to depart the U.S. after a removal order is final. It simultaneously would reduce the period of time in which an alien subject to such an order must depart from 90 days to 30 days. This shortened departure window will create significant hardship for long-time permanent residents who must organize their entire life affairs prior to departing and simultaneously make arrangements to live in a country to which they no longer have ties.
  • Authorize Removal to Non-recognized Countries. Section 506 would authorize removal of an alien to a country other than the individual’s country of citizenship, nationality, birth, or residence when removal to such country would be “impracticable, inadvisable, or impossible”. Moreover, it would permit removal to countries whose governments are not even recognized by the U.S.

AILA’s POSITION: AILA strongly opposes each of the proposed changes outlined above. In the aggregate, this proposal fails to promote its stated goals of combating terrorism and enhancing security. To the contrary, the fundamental lack of fairness and the abrogation of long-standing due process principles embodied in this legislation ultimately could subvert the very objectives it was designed to facilitate. Tearing families asunder and expelling long-time residents of the U.S. without a modicum of due process violates our traditions and will serve only to create an atmosphere of distrust, apprehension, and resentment throughout the immigrant communities in this country. Alienating significant portions of the populace will undermine the cooperation law enforcement authorities regularly identify as a critical component to successful enforcement interdictions.

Cite as AILA Doc. No. 03022647.