§1189 — Title 8 Aliens and Nationality | U.S. Code

Summary

The Secretary of State can name a foreign group as a foreign terrorist organization if the group is based outside the United States, takes part in or plans terrorist acts, and those acts threaten U.S. citizens or the country's security. Seven days before making the name public, the Secretary must tell top Congressional leaders and the relevant committees in a classified notice that explains why. The Secretary then publishes the name in the Federal Register, and the designation becomes effective when it is published. Once Congress is notified, the Treasury can order U.S. banks to freeze that group’s assets. The Secretary must keep a written record of the reasons, may use classified material in that record, and may hide classified details except to a court in private. A designated group can ask the Secretary to remove the label, but a petition can only start two years after the designation (or two years after a previous decision on a petition). The Secretary must decide on a petition within 180 days. The Secretary can also review any designation if no review happened in five years, and can cancel a designation at any time if facts change or U.S. security requires it. Congress can block or undo a designation by passing a law. A revoked designation does not erase past actions based on the earlier designation. A group may ask the D.C. Circuit Court to review the decision within 30 days of publication; the court looks only at the record and can set the decision aside if it finds serious legal problems. Definitions: “classified information” = as defined in the Classified Information Procedures Act; “national security” = U.S. defense, foreign relations, or economic interests; “relevant committees” = House and Senate Judiciary, Intelligence, and Foreign Relations (International Relations) committees; “Secretary” = Secretary of State, working with the Treasury Secretary and the Attorney General.

Title 8, §1189

Aliens and Nationality — Source: USLM XML via OLRC

(a)(1)The Secretary is authorized to designate an organization as a foreign 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 1182(a)(3)(B) of this title or terrorism (as defined in section 2656f(d)(2) of title 22), or retains the capability and intent to engage in terrorist activity or terrorism) 11 So in original. The closing parenthesis probably should follow “section 1182(a)(3)(B) of this title”.; and

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

(2)(A)(i)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)The Secretary shall publish the designation in the Federal Register seven days after providing the notification under clause (i).

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

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

(C)Upon notification under paragraph (2)(A)(i), the Secretary of the Treasury may require United States financial institutions possessing or controlling any assets of any foreign 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)(A)In making a designation under this subsection, the Secretary shall create an administrative record.

(B)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).

(4)(A)A designation under this subsection shall be effective for all purposes until revoked under paragraph (5) or (6) or set aside pursuant to subsection (c).

(B)(i)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)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)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)(I)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)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)A determination made by the Secretary under this clause shall be published in the Federal Register.

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

(C)(i)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)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)The Secretary shall publish any determination made pursuant to this subparagraph in the Federal Register.

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

(6)(A)The Secretary may revoke a designation made under paragraph (1) 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 have changed in such a manner as to warrant revocation; or

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

(B)The procedural requirements of paragraphs (2) and (3) shall apply to a revocation under this paragraph. 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)The revocation of a designation under paragraph (5) or (6) shall not affect any action or proceeding based on conduct committed prior to the effective date of such revocation.

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

(b)(1)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)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)The administrative record shall be corrected to include the amendments as well as any additional relevant information that supports those amendments.

(4)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)(1)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 in the United States Court of Appeals for the District of Columbia Circuit.

(2)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.

(3)The Court shall hold unlawful and set aside a designation, 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),22 So in original. The comma probably should be a semicolon. or

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

(4)The pendency of an action for judicial review of a designation, amended designation, or determination in response to a petition for revocation 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.

(d)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.

Notes & Related Subsidiaries

Editorial Notes

References in Text

section 1(a) of the Classified Information Procedures Act, referred to in subsec. (d)(1), is section 1(a) of Pub. L. 96–456, which is set out in the Appendix to Title 18, Crimes and Criminal Procedure. Codification Another section 411(c) of Pub. L. 107–56 enacted provisions set out as an

Effective Date

of 2001 Amendment note under section 1182 of this title.

Amendments

2004—Subsec. (a)(3)(B). Pub. L. 108–458, § 7119(c)(1)(A), substituted “subsection (c)” for “subsection (b)”. Subsec. (a)(4)(A). Pub. L. 108–458, § 7119(a)(1), substituted “A designation” for “Subject to paragraphs (5) and (6), a designation” and “until revoked under paragraph (5) or (6) or set aside pursuant to subsection (c)” for “for a period of 2 years beginning on the

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of the designation under paragraph (2)(B)”. Subsec. (a)(4)(B). Pub. L. 108–458, § 7119(a)(2), added subpar. (B) and struck out former subpar. (B) which contained provisions authorizing Secretary to redesignate a foreign organization as a foreign terrorist organization for an additional 2-year period at the end of the 2-year period referred to in subpar. (A) or at the end of any 2-year redesignation period. Subsec. (a)(4)(C). Pub. L. 108–458, § 7119(a)(3), added subpar. (C). Subsec. (a)(6)(A). Pub. L. 108–458, § 7119(c)(1)(B)(i), substituted “at any time, and shall revoke a designation upon completion of a review conducted pursuant to subparagraphs (B) and (C) of paragraph (4)” for “or a redesignation made under paragraph (4)(B)” in introductory provisions. Subsec. (a)(6)(A)(i). Pub. L. 108–458, § 7119(c)(1)(B)(ii), struck out “or redesignation” after “the designation”. Subsec. (a)(7). Pub. L. 108–458, § 7119(c)(1)(C), struck out “, or the revocation of a redesignation under paragraph (6),” before “shall not affect”. Subsec. (a)(8). Pub. L. 108–458, § 7119(c)(1)(D), struck out “, or if a redesignation under this subsection has become effective under paragraph (4)(B),” before “a defendant in a criminal action” and “or redesignation” after “such designation”. Subsec. (b). Pub. L. 108–458, § 7119(b)(2), added subsec. (b). Former subsec. (b) redesignated (c). Subsec. (c). Pub. L. 108–458, § 7119(b)(1), redesignated subsec. (b) as (c). Former subsec. (c) redesignated (d). Subsec. (c)(1). Pub. L. 108–458, § 7119(c)(2)(A), substituted “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” for “of the designation in the Federal Register, an organization designated as a foreign terrorist organization may seek judicial review of the designation”. Subsec. (c)(2) to (4). Pub. L. 108–458, § 7119(c)(2)(B)–(D), inserted “, amended designation, or determination in response to a petition for revocation” after “designation” wherever appearing. Subsec. (d). Pub. L. 108–458, § 7119(b)(1), redesignated subsec. (c) as (d). 2001—Subsec. (a)(1)(B). Pub. L. 107–56, § 411(c)(1), inserted “or terrorism (as defined in section 2656f(d)(2) of title 22), or retains the capability and intent to engage in terrorist activity or terrorism” after “section 1182(a)(3)(B) of this title”. Subsec. (a)(1)(C). Pub. L. 107–56, § 411(c)(2), inserted “or terrorism” after “the terrorist activity”. Subsec. (a)(2)(A). Pub. L. 107–56, § 411(c)(3), reenacted heading without change and amended text generally. Prior to amendment, text read as follows: “Seven days before making a designation under this subsection, the Secretary shall, by classified communication— “(i) 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, in writing, of the intent to designate a foreign organization under this subsection, together with the findings made under paragraph (1) with respect to that organization, and the factual basis therefor; and “(ii) seven days after such notification, publish the designation in the Federal Register.” Subsec. (a)(2)(B)(i). Pub. L. 107–56, § 411(c)(4), substituted “subparagraph (A)(ii)” for “subparagraph (A)”. Subsec. (a)(2)(C). Pub. L. 107–56, § 411(c)(5), substituted “paragraph (2)(A)(i)” for “paragraph (2)”. Subsec. (a)(3)(B). Pub. L. 107–56, § 411(c)(6), substituted “subsection (b)” for “subsection (c)”. Subsec. (a)(4)(B). Pub. L. 107–56, § 411(c)(7), inserted after first sentence “The Secretary also may redesignate such organization at the end of any 2-year redesignation period (but not sooner than 60 days prior to the termination of such period) for an additional 2-year period upon a finding that the relevant circumstances described in paragraph (1) still exist. Any redesignation shall be effective immediately following the end of the prior 2-year designation or redesignation period unless a different

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is provided in such redesignation.” Subsec. (a)(6)(A). Pub. L. 107–56, § 411(c)(8)(A), inserted “or a redesignation made under paragraph (4)(B)” after “paragraph (1)” in introductory provisions. Subsec. (a)(6)(A)(i). Pub. L. 107–56, § 411(c)(8)(B), inserted “or redesignation” after “basis for the designation” and struck out “of the designation” before semicolon. Subsec. (a)(6)(A)(ii). Pub. L. 107–56, § 411(c)(8)(C), struck out “of the designation” before period at end. Subsec. (a)(6)(B). Pub. L. 107–56, § 411(c)(9), substituted “and (3)” for “through (4)” and inserted “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.” at end. Subsec. (a)(7). Pub. L. 107–56, § 411(c)(10), inserted “, or the revocation of a redesignation under paragraph (6),” after “paragraph (5) or (6)”. Subsec. (a)(8). Pub. L. 107–56, § 411(c)(11), substituted “paragraph (2)(B), or if a redesignation under this subsection has become effective under paragraph (4)(B)” for “paragraph (1)(B)” and inserted “or an alien in a removal proceeding” after “criminal action” and “or redesignation” before “as a defense”. 1996—Pub. L. 104–208, § 671(c)(1), made technical amendment to section catchline. Subsec. (b)(3)(D), (E). Pub. L. 104–208, § 356, added subpars. (D) and (E).

Statutory Notes and Related Subsidiaries

Effective Date

of 2001 AmendmentAmendment by Pub. L. 107–56 effective Oct. 26, 2001, and applicable to actions taken by an alien before, on, or after Oct. 26, 2001, and to all aliens, regardless of date of entry or attempted entry into the United States, in removal proceedings on or after such date (except for proceedings in which there has been a final administrative decision before such date) or seeking admission to the United States on or after such date, with special rules and exceptions, see section 411(c) of Pub. L. 107–56, set out as a note under section 1182 of this title.

Effective Date

of 1996 AmendmentAmendment by section 356 of Pub. L. 104–208 effective as if included in the enactment of subtitle A of title IV of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104–132, see section 358 of Pub. L. 104–208, set out as a note under section 1182 of this title. Pub. L. 104–208, div. C, title VI, § 671(c)(7), Sept. 30, 1996, 110 Stat. 3009–723, provided that: “The

Amendments

made by this subsection [amending this section and section 1105a and 1252a of this title] shall take effect as if included in the enactment of subtitle A of title IV of AEPDA [AEDPA, Pub. L. 104–132].” Abolition of Immigration and Naturalization Service and

Transfer of Functions

For abolition of Immigration and Naturalization Service,

Transfer of Functions

, and treatment of related references, see note set out under section 1551 of this title.

Savings Provision

Pub. L. 108–458, title VII, § 7119(d), Dec. 17, 2004, 118 Stat. 3803, provided that: “For purposes of applying section 219 of the Immigration and Nationality Act [8 U.S.C. 1189] on or after the date of enactment of this Act [Dec. 17, 2004], 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)).”

§1189 Designation of foreign terrorist organizations

Summary

Title 8, §1189

Notes & Related Subsidiaries

Editorial Notes

References in Text

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Amendments

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Statutory Notes and Related Subsidiaries

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Amendments

Transfer of Functions

Transfer of Functions

Savings Provision

Citations & Metadata