A legal alien from Afghanistan was deported last month in the first-ever Alien Terrorist Removal Court case.
In mid-July, I related that the Trump administration had brought the first ever application to the Alien Terrorist Removal Court (ATRC) to have an alien deported because of ties to terrorism. On Friday’s 25th anniversary of the 9/11 attacks, the administration announced that the woman in question, a lawful permanent resident alien from Afghanistan named Nazira Haji Zada, had been deported last month.
As reported by Politico, lawyers for Zada and the Trump DOJ entered an agreement pursuant to which ATRC Chief Judge Joan N. Erickson found that Zada was a removable alien terrorist under the germane provision, Section 1534 of federal immigration law.
As in agreements of this kind, there were benefits for each side.
The administration avoided an extensive legal fight in which the ATRC’s procedures would have been challenged on due process grounds. To repeat what I explained in the previous post, the ATRC enables the government, in establishing that the alien is a removable terrorist, to rely on classified information that is not made fully available to the alien — in contrast to the discovery provisions that normally apply in immigration removal proceedings and criminal trials.
For her part, Zada avoided what would have been lengthy incarceration in the United States, at the end of which she’d surely have been deported to her native Afghanistan anyway. Politico reports on some of the known evidence: Zada had pledged fealty to ISIS, and her son and son-in-law had been convicted in connection with a mass-shooting plot in connection with the 2024 election. Even if the ATRC process had been found unconstitutional — which was possible but no sure thing — there appears to have been abundant basis to remove Zada without extraordinary resort to the secret court. (See Sections 1182(a)(3)and 1227(a)(4) of federal immigration law, providing for exclusion and removal due to “terrorist activity.”) So she was going to be removed one way or another.
To repeat, the ATRC was established 30 years ago. The idea was to facilitate the removal of suspected alien terrorists whose presence imperiled national security but proof of whose terror ties, if revealed in court, could expose defense secrets and, especially, precious sources of intelligence. This was a worthy aim but portended obvious due process questions. The ATRC has remained dormant throughout its history — judges were appointed to serve on it, but there were no cases — because, as a practical matter, there was no need to have what promised to be a pitched constitutional battle. When strong evidence of terrorist activity exists, the government tends to prosecute under the criminal law and seek a lengthy prison sentence to neutralize the terrorist. And when there is clear evidence of terrorist associations, the regular immigration laws provide an easy avenue for removal.
In its zeal to deport aliens — and, in particular, criminal and/or terrorist aliens — the Trump administration likes to break new ground. It has done so in dubiously invoking the late 18th century Alien Enemies Act to mass deport suspected members of Tren de Aragua and MS-13. Similarly, it has periodically and controversially exploited a rarely used immigration law provision that empowers the secretary of state to revoke the visas of lawfully present aliens — over activity, such as dissent against government policies, that would be First Amendment-protected if engaged in by an American citizen — by finding that their presence is detrimental to U.S. foreign policy objectives.
The administration’s unprecedented attempt to use the ATRC fits this push-the-envelope pattern. Still, I doubt there will be many more ATRC cases. Most alien removal matters of this kind will be easily resolvable under quotidian legal means; needlessly invoking the ATRC process would ignite the constitutional controversy the DOJ wisely avoided in this case.
That said, the administration wanted to use the ATRC, it did, and the alien was deported as a judicially established alien terrorist. A win is a win.