The Immigration and Nationality Act includes a number of provisions which relate to criminal activity. Section 219 allows for the designation of foreign organisations as terrorist organisations. Organisations will be defined as such if members of the group engage in terrorist activities which threaten the security of the United States.

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The Immigration and Nationality Act includes a number of provisions which relate to criminal activity. Section 219 allows for the designation of foreign organisations as terrorist organisations. Organisations will be defined as such if members of the group engage in terrorist activities which threaten the security of the United States. ‘Terrorist activity’ is defined under section 212 A(3)(B) (iii) and includes high-jacking or seizing or detaining and threatening to kill, injure, or continue to detain, another individual with specific conditions for release; violent attacks and the use of biological agents. ‘Engaging in terrorist activity’ is defined under section 212 A(3)(B) (iv) as committing or inciting to commit, under circumstances indicating an intention to cause death or serious bodily injury, a terrorist activity; preparing or planning a terrorist activity; or gathering information on potential targets for terrorist activity. Persons who fall within these definitions are subject to mandatory detention under section 236 (A) until they are removed from the country or, under sub-section 6, if they cannot be removed they can be detained for an additional period of six months if their release will threaten national security.

Under section 501 of the INA the Attorney General may seek the removal of any person considered to be an ‘alien terrorist’. Alien terrorists are persons who have committed non-violent offences, as set out in section 241(a)(4)(B). Such persons may be removed from the country before their sentence of imprisonment is complete, whereas under sub-section A of section 241(a)(4) in general immigrants serving prison sentences are normally only subject to removal when they are released from imprisonment.

Under section 232 of the INA immigrants entering the country may be subject to detention for physical or mental examination to ascertain if they have any ‘mental of physical defects’, these include under section 212(a) communicable diseases or the inability prove that they have had vaccinations for certain diseases. People with mental or physical conditions, which pose a threat to themselves or others, may also be detained under this provision. Under section 236 other immigrants may be detained with a view to removal proceedings, if the detainee is not removable detention must terminate.

In March 2003 the US Government enacted Operation Liberty Shield a comprehensive national security plan. The Operation allowed for the detention of asylum seekers “for the duration of the processing period”, from 33 undisclosed countries including Iraq that were considered “ nations where al-Qaeda, al-Qaeda sympathizers, and other terrorist groups are known to have operated”. However in May 2003 the Operation was terminated by the Department for Homeland and Security. The US also detains indefinitely over 600 suspected terrorists of a number of different nationalities, mainly captured during the Afghanistan war, at Guantanamo Bay in Cuba. In July 2002 a Federal Court held that the US had no jurisdiction to review the detention at Guantanamo bay, as the detainees are held outside the territory of the US and the detainees are not US citizens.

Analysis provided by: Anisa Niaz LLM (Public Law), United Kingdom.

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