Security and Related Grounds of Inadmissibility (Exclusion)
Written by Henry J. Chang
Under INA §212(a)(3)(A), an alien is excludable if a consular officer or the Attorney General knows or has reasonable grounds to believe, seeks to enter the United States to engage solely, principally or incidentally in the following:
- any activity: (I) to violate any law of the United States relating to espionage or sabotage, or (II) to violate or evade any law prohibiting the export from the United States of goods, technology or sensitive information;
- any other unlawful activity; or
- any activity the purpose of which is the opposition to, or the control or overthrow of, the Government of the United States by force, violence or other unlawful means.
Terrorist Activity [As amended by the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 ("USA PATRIOT Act"), Act of Oct. 26, 2001, Pub. L. No. 107-56, 115 Stat. 272.]
Under INA §212(a)(3)(B)(i), an alien is inadmissible who:
An alien who is an officer, official, representative, or spokesman of the Palestine Liberation Organization is considered to be engaged in a terrorist activity.
The term "terrorist activity" means any activity which is unlawful under the laws of the place where it is committed (or which, if it had been committed in the United States, would be unlawful under the laws of the United States or any State) and which involves any of the following:
- Has engaged in; or
- Who a consular officer or the Attorney General knows or has reasonable grounds to believe is likely to engage after entry in a terrorist activity;
- Has, under circumstances indicating an intention to cause death or serious bodily harm, incited terrorist activity [This ground of exclusion for incitement is effective September 30, 1996];
- Is a representative of: (a) a foreign terrorist organization, as designated by the Secretary of State, (b) a political, social or other similar group whose public endorsement of acts of terrorist activity the Secretary of State has determined undermines United States efforts to reduce or eliminate terrorist activities;
- Is a member of a foreign terrorist organization, as designated by the Secretary, which the alien knows or should have known is a terrorist organization;
- Has used the alien's position of prominence within any country to endorse or espouse terrorist activity, or to persuade others to support terrorist activity or a terrorist organization, in a way that the Secretary of State has determined undermines United States efforts to reduce or eliminate terrorist activities; or
- Is the spouse or child of an alien who is inadmissible under this section, if the activity causing the alien to be found inadmissible occurred within the last 5 years. However, this provision does not apply to a spouse or child who did not know or should not reasonably have known of the activity causing the alien to be found inadmissible under this section or whom the consular officer or Attorney General has reasonable grounds to believe has renounced the activity causing the alien to be found inadmissible under this section.
- The highjacking or sabotage of any conveyance (including an aircraft, vessel, or vehicle);
- The seizing or detaining, and threatening to kill, injure, or continue to detain, another individual in order to compel a third person (including a governmental organization) to do or abstain from doing any act as an explicit or implicit condition for the release of the individual seized or detained;
- A violent attack upon an internationally protected person (as defined in section 1116(b)(4) of title 18, United States Code) or upon the liberty of such a person;
- An assassination;
- The use of any: (a) biological agent, chemical agent, or nuclear weapon or device, or (b) explosive, firearm, or other weapon or dangerous device (other than for mere personal monetary gain), with intent to endanger, directly or indirectly, the safety of one or more individuals or to cause substantial damage to property; or
- A threat, attempt, or conspiracy to do any of the foregoing.
The term "engage in terrorist activity" means, in an individual capacity or as a member of an organization--
This ground of inadmissibility shall not apply to any material support the alien afforded to an organization or individual that has committed terrorist activity, if the Secretary of State, after consultation with the Attorney General, or the Attorney General, after consultation with the Secretary of State, concludes in his sole unreviewable discretion, that this ground should not apply.
The term "representative" includes an officer, official, or spokesman of an organization, and any person who directs, counsels, commands, or induces an organization or its members to engage in terrorist activity.
The term "terrorist organization" means an organization:
- To commit or to incite to commit, under circumstances indicating an intention to cause death or serious bodily injury, a terrorist activity;
- To prepare or plan a terrorist activity;
- To gather information on potential targets for terrorist activity;
- To solicit funds or other things of value for (a) a terrorist activity, (b) a designated terrorist organization, (c) a non-designated terrorist organization unless the solicitor can demonstrate that he did not know, and should not reasonably have known, that the solicitation would further the organization's terrorist activity;
- To solicit any individual: (a) to engage in conduct otherwise described in this ground of inadmissibility, (b) for membership in a designated terrorist organization, or (c) for membership in a non-designated terrorist organization, unless the solicitor can demonstrate that he did not know, and should not reasonably have known, that the solicitation would further the organization's terrorist activity; or
- To commit an act that the actor knows, or reasonably should know, affords material support, including a safe house, transportation, communications, funds, transfer of funds or other material financial benefit, false documentation or identification, weapons (including chemical, biological, or radiological weapons), explosives, or training: (a) for the commission of a terrorist activity, (b) to any individual who the actor knows, or reasonably should know, has committed or plans to commit a terrorist activity, (c) to a designated terrorist organization; or (d) to a non-designated terrorist organization, unless the actor can demonstrate that he did not know, and should not reasonably have known, that the act would further the organization's terrorist activity.
- Designated as such by the Secretary of State; or
- A group of two or more individuals, whether organized or not, which engages in the terrorist activities described this ground of inadmissibility.
Under INA §212(a)(3)(C), an alien will be excludable if the Secretary of State believes, based on reasonable grounds, that his or her entry or proposed activity in the United States would have potentially serious adverse foreign policy consequences for the U.S.. However, exceptions exist to this ground of exclusion. An alien who is an official of a foreign government or purported government, or who is a candidate for election to an office of a foreign government during the period immediately preceding the election, shall not be excludable under this ground solely because of his or her past, current, or expected beliefs, statements or associations if the beliefs, statements, or associations would be lawful in the U.S.. Other individuals will not be excludable based on past, current, or expected beliefs, statements or associations if they would be lawful in the United States, unless the Secretary of State personally determines that the alien's admission would compromise a compelling foreign policy interest.
Membership in a Totalitarian Party
Under INA §212(a)(3)(D)(i), aliens who have been affiliated with the communist or totalitarian party, whether domestic or foreign, are excludable. However, there are exceptions to this ground of exclusion which apply in the following situations:
- involuntary membership, which includes membership under the age of 16, membership by operation of law or for the purpose of obtaining employment, food rations or other essentials of living and necessary for such purposes [INA §212(a)(3)(D)(ii)];
- past membership where membership terminated at least two years before the date of the application (or five years before the date of the application where the membership was in the party controlling the government which is a totalitarian dictatorship as of the date of the application) and where the alien is not a threat to U.S. security [INA §212(a)(3)(D)(iii)]; or
- in the case of an immigrant who is a parent, spouse, son, daughter, brother or sister of a U.S. citizen or spouse, son or daughter or a permanent resident [INA §212(a)(3)(D)(iv)].
Participants in Nazi Persecutions or Genocide
Under INA §212(a)(3)(E), an alien is excludable if he or she:
Association with Terrorist Organizations [Added by the USA PATRIOT Act.]
According to INA §212(a)(3)(F), any alien who the Secretary of State, after consultation with the Attorney General, or the Attorney General, after consultation with the Secretary of State, determines has been associated with a terrorist organization and intends while in the United States to engage solely, principally, or incidentally in activities that could endanger the welfare, safety, or security of the United States is inadmissible.
- between March 23, 1993 and May 8, 1945 ordered and incited, assisted or otherwise participated in the persecution of any person because of race, religion, national origin, or political opinion under the direction of or in association with the Nazi government of Germany, a government in an area occupied by the Nazi government, any government established with the assistance of or cooperation of the German Nazi government, or any government which was an ally of Nazi Germany; or
- has engaged in conduct that constitutes genocide for the purposes of the International Convention on the Prevention and Punishment of Genocide.