Friday, April 14, 2006

McAllister: Engaging in Terrorist Activities Ridiculously Broad Definition

McAllister v. Gonzales
April 10, 2006
Filed 04/10/06, No. 03-4513
McAllister v. Atty Gen USA

The Third Circuit ruled that the broad definition in the INA of "terrorist activity" should be interpreted extremely broadly, as Congress intended, even though a concurring judge criticized the law as unduly harsh.

Terrorist activity includes unlawful actions involving a weapon other than merely for personal monetary gain with the intent to endanger someone's safety (directly or indirectly) or to cause substantial property damage. This is an amazingly broad definition. The Third Circuit, strangely, reasoned that an eight-year old using a bat to defend himself escapes the broad definition because the actions are not "unlawful." But what the Third Circuit did not analyze is how it probably would include an eight-year old who brings a bat in the mistaken belief that he needs to defend himself, so that his mistake means his action is unlawful.

It does not matter that there is no evidence of the person being part of any terrorist organization. The person can simply be acting in an individual capacity or as the member of any organization (even an organization that is not a terrorist organization).

The Third Circuit ruled that being engaged in terrorist activity disqualifies people from obtaining asylum and withholding of removal.

Judge Maryanne Trump Barry, concurring, criticized the needlessly broad definitions, hoping that the phrase to give me your tired, your poor was not just an empty entreaty. "But if it is, shame on us."

Judge Barry criticizes how Congress's rule has no relation to any common-sense understanding of what "terrorist activity" really is or should be. Instead, they defined it much too broadly. Judge Barry sees it as a knee-jerk reaction to the tragic events of September 2001 that allows the government to remove decent men and women from the US just for one error in their lives.

It took the Third Circuit a full 9 months to decide the case (argued June 2005 and decided April 2006).

Maryclaire Dale of the Associated Press wrote an article titled "Judge Decries Rigid U.S. Immigration Laws" on April 13th about Judge Barry's critique.

Update: on April 17, 2009, the Associate Press reported that DHS is postponing deportation until at least March 2010 while it reviews the case. Senator Menendez introduced a bill in 2008 seeking permanent residency for McAllister.


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