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Main topic: Immigration Law ::: Sub topic: INA 219

INA 219 - DESIGNATION OF FOREIGN TERRORIST ORGANIZATION 1/

Sec. 219. (a) Designation.-

(1) In general.-The Secretary is authorized to designate an organization as a terrorist organization in accordance with this subsection if the Secretary finds that-

(A) the organization is a foreign organization;

(B) the organization engages in terrorist activity (as defined in section 212(a)(3)(B) 1a/ or terrorism (as defined in section 140(d)(2) of the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989 (22 U.S.C. 2656f(d)(2)), or retains the capability and intent to engage in terrorist activity or terrorism); and

(C) the terrorist activity 1a/ or terrorism of the organization threatens the security of United States nationals or the national security of the United States.

(2) Procedure.-

(A) 1a/ NOTICE-

(i) TO CONGRESSIONAL LEADERS- Seven days before making a designation under this subsection, the Secretary shall, by classified communication, notify the Speaker and Minority Leader of the House of Representatives, the President pro tempore, Majority Leader, and Minority Leader of the Senate, and the members of the relevant committees of the House of Representatives and the Senate, in writing, of the intent to designate an organization under this subsection, together with the findings made under paragraph (1 ) with respect to that organization, and the factual basis therefor.

(ii) PUBLICATION IN FEDERAL REGISTER- The Secretary shall publish the designation in the Federal Register seven days after providing the notification under clause (i).

(B) Effect of designation.-

(i) For purposes of section 2339B of title 18, United States Code, a designation under this subsection shall take effect upon publication under subparagraph (A)(ii) 1a/ .

(ii) Any designation under this subsection shall cease to have effect upon an Act of Congress disapproving such designation.

(C) Freezing of assets.-Upon notification under paragraph (2)(A)(i) 1a/ , the Secretary of the Treasury may require United States financial institutions possessing or controlling any assets of any organization included in the notification to block all financial transactions involving those assets until further directive from either the Secretary of the Treasury, Act of Congress, or order of court.

(3) Record.-

(A) In general.-In making a designation under this subsection, the Secretary shall create an administrative record.

(B) Classified information.-The Secretary may consider classified information in making a designation under this subsection. Classified information shall not be subject to disclosure for such time as it remains classified, except that such information may be disclosed to a court ex parte and in camera for purposes of judicial review under subsection (c ) 1d/ 1a/ .

(4) Period of designation.-

(A) In general.- 1b/ A designation under this subsection shall be effective for all purposes 1b/ until revoked under paragraph (5) or (6) or set aside pursuant to subsection (c).

(B) 1b/ REVIEW OF DESIGNATION UPON PETITION-

(i) IN GENERAL- The Secretary shall review the designation of a foreign terrorist organization under the procedures set forth in clauses (iii) and (iv) if the designated organization files a petition for revocation within the petition period described in clause (ii).

(ii) PETITION PERIOD- For purposes of clause (i)--

(I) if the designated organization has not previously filed a petition for revocation under this subparagraph, the petition period begins 2 years after the date on which the designation was made; or

(II) if the designated organization has previously filed a petition for revocation under this subparagraph, the petition period begins 2 years after the date of the determination made under clause (iv) on that petition.

(iii) PROCEDURES- Any foreign terrorist organization that submits a petition for revocation under this subparagraph must provide evidence in that petition that the relevant circumstances described in paragraph (1) are sufficiently different from the circumstances that were the basis for the designation such that a revocation with respect to the organization is warranted.

(iv) DETERMINATION-

(I) IN GENERAL- Not later than 180 days after receiving a petition for revocation submitted under this subparagraph, the Secretary shall make a determination as to such revocation.

(II) CLASSIFIED INFORMATION- The Secretary may consider classified information in making a determination in response to a petition for revocation. Classified information shall not be subject to disclosure for such time as it remains classified, except that such information may be disclosed to a court ex parte and in camera for purposes of judicial review under subsection (c).

(III) PUBLICATION OF DETERMINATION- A determination made by the Secretary under this clause shall be published in the Federal Register.

(IV) PROCEDURES- Any revocation by the Secretary shall be made in accordance with paragraph (6).

(C) 1b/ OTHER REVIEW OF DESIGNATION-

(i) IN GENERAL- If in a 5-year period no review has taken place under subparagraph (B), the Secretary shall review the designation of the foreign terrorist organization in order to determine whether such designation should be revoked pursuant to paragraph (6).

(ii) PROCEDURES- If a review does not take place pursuant to subparagraph (B) in response to a petition for revocation that is filed in accordance with that subparagraph, then the review shall be conducted pursuant to procedures established by the Secretary. The results of such review and the applicable procedures shall not be reviewable in any court.

(iii) PUBLICATION OF RESULTS OF REVIEW- The Secretary shall publish any determination made pursuant to this subparagraph in the Federal Register.

(5) Revocation by act of congress.-The Congress, by an Act of Congress, may block or revoke a designation made under paragraph (1).

(6) Revocation based on change in circumstances.-

(A) In general.-The Secretary may revoke a designation made under paragraph (1) 1a/ 1d/ at any time, and shall revoke a designation upon completion of a review conducted pursuant to subparagraphs (B) and (C) of paragraph (4) if the Secretary finds that-

(i) the circumstances that were the basis for the designation 1a/ 1d/ have changed in such a manner as to warrant revocation 1a/ ; or

(ii) the national security of the United States warrants a revocation. 1a/

(B) Procedure.-The procedural requirements of paragraphs (2) and (3) 1a/ shall apply to a revocation under this paragraph . 1a/ Any revocation shall take effect on the date specified in the revocation or upon publication in the Federal Register if no effective date is specified.

(7) Effect of revocation.-The revocation of a designation under paragraph (5) or (6) 1d/ 1a/ shall not affect any action or proceeding based on conduct committed prior to the effective date of such revocation.

(8) Use of designation in trial or hearing.-If a designation under this subsection has become effective under 1a/ paragraph (2)(B) 1d/ a defendant in a criminal action 1a/ or an alien in removal proceeding shall not be permitted to raise any question concerning the validity of the issuance of such designation 1d/ 1a/ as a defense or an objection at any trial or hearing.

(b) 1c/ AMENDMENTS TO A DESIGNATION-

(1) IN GENERAL- The Secretary may amend a designation under this subsection if the Secretary finds that the organization has changed its name, adopted a new alias, dissolved and then reconstituted itself under a different name or names, or merged with another organization.

(2) PROCEDURE- Amendments made to a designation in accordance with paragraph (1) shall be effective upon publication in the Federal Register. Subparagraphs (B) and (C) of subsection (a)(2) shall apply to an amended designation upon such publication. Paragraphs (2)(A)(i), (4), (5), (6), (7), and (8) of subsection (a) shall also apply to an amended designation.

(3) ADMINISTRATIVE RECORD- The administrative record shall be corrected to include the amendments as well as any additional relevant information that supports those amendments.

(4) CLASSIFIED INFORMATION- The Secretary may consider classified information in amending a designation in accordance with this subsection. Classified information shall not be subject to disclosure for such time as it remains classified, except that such information may be disclosed to a court ex parte and in camera for purposes of judicial review under subsection (c).

(c) 1c/ Judicial Review of Designation.-

(1) In general.-Not later than 30 days after publication in the Federal Register of a designation, an amended designation, or a determination in response to a petition for revocation, the designated organization may seek judicial review 1d/ in the United States Court of Appeals for the District of Columbia Circuit.

(2) Basis of review.-Review under this subsection shall be based solely upon the administrative record, except that the Government may submit, for ex parte and in camera review, classified information used in making the designation, amended designation, or determination in response to a petition for revocation. 1d/

(3) Scope of review.-The Court shall hold unlawful and set aside a designation, 1d/ amended designation, or determination in response to a petition for revocation the court finds to be-

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(B) contrary to constitutional right, power, privilege, or immunity;

(C) in excess of statutory jurisdiction, authority, or limitation, or short of statutory right;

(D) lacking substantial support in the administrative record taken as a whole or in classified information submitted to the court under paragraph (2), or

(E) not in accord with the procedures required by law. 2/

(4) Judicial review invoked.-The pendency of an action for judicial review of a designation, amended designation, or determination in response to a petition for revocation 1d/ shall not affect the application of this section, unless the court issues a final order setting aside the designation, amended designation, or determination in response to a petition for

revocation. 1d/

(d) 1c/ Definitions.-As used in this section-

(1) the term "classified information" has the meaning given that term in section 1(a) of the Classified Information Procedures Act (18 U.S.C. App.);

(2) the term "national security" means the national defense, foreign relations, or economic interests of the United States;

(3) the term "relevant committees" means the Committees on the Judiciary, Intelligence, and Foreign Relations of the Senate and the Committees on the Judiciary, Intelligence, and International Relations of the House of Representatives; and

(4) the term "Secretary" means the Secretary of State, in consultation with the Secretary of the Treasury and the Attorney General.

FOOTNOTES FOR SECTION 219

INA 219 FN 1

FN 1 Section added by section 302 of AEDPA; Nomenclature of title corrected by amendment by section 671(c) of IIRIRA.

INA 219 FN 1a

FN 1a Section 219(a) is amended by section 411(c) of the USA Patriot Act, Public Law 107-56, dated October 26, 2001.

INA 219 FN 1b

FN 1b Section 7119(a) of Public Law 108-458, amended section 219(a)(4):

(1) In subparagraph (A) by

(A) Striking "Subject to paragraphs (5) and (6), a" and inserting "A"; and by

(B) Striking "for a period of 2 years beginning on the effective date of the designation under paragraph (2)(B)" and inserting "until revoked under paragraph (5) or (6) or set aside pursuant to subsection (c)"

(2) By revising subparagraph (B) and adding subparagraph (C).

INA 219 FN 1c

FN 1c Section 7119(a) of Public Law 108-458, redesignated subparagraphs (b) and (c), as (c) and (d) respectively, and added a new subparagraph (b).

INA 219 FN 1d

FN 1d Section 7119(c) of Public Law 108-458 made several Technical and Conforming Amendments to section 219.

(d) SAVINGS PROVISION- For purposes of applying section 219 of the Immigration and Nationality Act on or after the date of enactment of this Act, the term "designation", as used in that section, includes all redesignations made pursuant to section 219(a)(4)(B) of the Immigration and Nationality Act (8 U.S.C. 1189(a)(4)(B)) prior to the date of enactment of this Act, and such redesignations shall continue to be effective until revoked as provided in paragraph (5) or (6) of section 219(a) of the Immigration and Nationality Act (8 U.S.C. 1189(a)).

INA 219 FN 2

FN 2 Subparagraphs (D) and (E) added by section 356 of IIRIRA, effective as if included in the enactment of subtitle A of title IV of AEDPA

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