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Aliens and Nationality - 8 USC Section 1189
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01/03/05 Sec. 1189. Designation of foreign terrorist organizations
(a) Designation
(1) In general
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) (!1); 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) Procedure
(A) 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, 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) Freezing of assets
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) 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) of this section.
(4) Period of designation
(A) In general
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) of this section.
(B) 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) of this section.
(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) 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) 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) Procedure
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) Effect of revocation
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) Use of designation in trial or hearing
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) 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) of this section
shall apply to an amended designation upon such publication.
Paragraphs (2)(A)(i), (4), (5), (6), (7), and (8) of subsection
(a) of this section 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) of this section.
(c) 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 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.
(3) Scope of review
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),(!2) or
(E) not in accord with the procedures required by law.
(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 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) 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.
AMENDMENTS
2004 - Subsec. (a)(3)(B). Pub. L. 108-458, Sec. 7119(c)(1)(A),
substituted "subsection (c)" for "subsection (b)".
Subsec. (a)(4)(A). Pub. L. 108-458, Sec. 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) of this section" for "for a period
of 2 years beginning on the effective date of the designation under
paragraph (2)(B)".
Subsec. (a)(4)(B). Pub. L. 108-458, Sec. 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, Sec. 7119(a)(3), added
subpar. (C).
Subsec. (a)(6)(A). Pub. L. 108-458, Sec. 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, Sec. 7119(c)(1)(B)(ii),
struck out "or redesignation" after "the designation".
Subsec. (a)(7). Pub. L. 108-458, Sec. 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, Sec. 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, Sec. 7119(b)(2), added subsec. (b).
Former subsec. (b) redesignated (c).
Subsec. (c). Pub. L. 108-458, Sec. 7119(b)(1), redesignated
subsec. (b) as (c). Former subsec. (c) redesignated (d).
Subsec. (c)(1). Pub. L. 108-458, Sec. 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, Sec. 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, Sec. 7119(b)(1), redesignated
subsec. (c) as (d).
2001 - Subsec. (a)(1)(B). Pub. L. 107-56, Sec. 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, Sec. 411(c)(2), inserted "or
terrorism" after "the terrorist activity".
Subsec. (a)(2)(A). Pub. L. 107-56, Sec. 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, Sec. 411(c)(4), substituted
"subparagraph (A)(ii)" for "subparagraph (A)".
Subsec. (a)(2)(C). Pub. L. 107-56, Sec. 411(c)(5), substituted
"paragraph (2)(A)(i)" for "paragraph (2)".
Subsec. (a)(3)(B). Pub. L. 107-56, Sec. 411(c)(6), substituted
"subsection (b) of this section" for "subsection (c) of this
section".
Subsec. (a)(4)(B). Pub. L. 107-56, Sec. 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 effective date is provided in such redesignation."
Subsec. (a)(6)(A). Pub. L. 107-56, Sec. 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, Sec. 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, Sec. 411(c)(8)(C), struck
out "of the designation" before period at end.
Subsec. (a)(6)(B). Pub. L. 107-56, Sec. 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, Sec. 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, Sec. 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, Sec. 671(c)(1), made technical amendment
to section catchline.
Subsec. (b)(3)(D), (E). Pub. L. 104-208, Sec. 356, added subpars.
(D) and (E).
EFFECTIVE DATE OF 2001 AMENDMENT
Amendment 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 AMENDMENT
Amendment 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.
Section 671(c)(7) of div. C of Pub. L. 104-208 provided that:
"The amendments made by this subsection [amending this section and
sections 1105a and 1252a of this title] shall take effect as if
included in the enactment of subtitle A of title IV of AEPDA [Pub.
L. 104-132]."
SAVINGS PROVISION
Pub. L. 108-458, title VII, Sec. 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))."
Last modified: June 14, 2006
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