Section 237 Deportability Statutes: Security and related grounds



Section 237 of the Immigration and Nationality Act (INA) contains grounds for which an alien who is in the United States after having been admitted or having had his or her status adjusted to that of lawful permanent resident may be removed. In this article, we will provide an overview of the various security and related grounds of deportability found in section 237(a)(4) of the INA. Section 237(a)(4) contains the deportability provisions for security and related grounds.

This article is one part of a series of articles covering the deportability provisions in section 237 of the INA. Please see our full selection of articles below to learn about the other categories of deportability provisions.

Security and Related Grounds

The provisions of this article apply to any alien who is “in and admitted to the United States.” It does not, however, cover alien crewmen.

Security and related grounds

Section 237(a)(4) of the Immigration and Nationality Act (INA) contains deportability provisions for security and related grounds. The deportability grounds encompass serious conduct, such as espionage, terrorist activities, or participation in genocide or extrajudicial killings. Much of the conduct described can render an alien ineligible for future immigration benefits in addition to deportable. Several corresponding inadmissibility provisions are found in section 212(a)(3) of the INA. Where applicable, we will note related inadmissibility grounds.

A. General

Section 237(a)(4)(A) of the INA contains three separate sub-clauses, each outlining distinct deportability provisions. In the foregoing subsections, we will examine each of these deportability provisions in turn.

i. Espionage

Section 237(a)(4)(A)(i) of the INA renders deportable any alien who has engaged in or who engages in after admission “any activity to violate any law of the United States relating to espionage or sabotage or to violate or evade any law prohibiting the export from the United States of goods, technology , or sensitive information…”

First, it is worth noting that an alien for whom the government has “reasonable grounds to believe” is deportable under section 236A(a)(3)(A) of the INA is subject to mandatory detention.

The Board of Immigration Appeals (BIA) issued one significant decision on the subject of section 237(a)(4)(A)(i) on May 26, 1999, in Matter of Luis, 22 I&N Dec. 747 (BIA 1999) [PDF version]. In Matter of Luis, the Board held that section 237(a)(4)(A)(i) does not require a conviction. Id. at 756, 767. “Rather, the clear language of the provision requires only engagement, past or present, in any activity in violation of a law relating to espionage.” Id. at 757. The Board held that the government has the burden of showing the following five points in order to establish that an alien is deportable under section 241(a)(4)(A)(i): “(1) the type of activity engaged in by the alien; (2) when that activity occurred; (3) the law which the alien violated; (4) the law relates to espionage; and (5) the activities engaged in by the alien that violated that particular law.” Id. at 768.

Regarding the issue in Matter of Luis specifically, the Board held that an alien who received instruction in espionage or counter-espionage from a foreign government, as set forth in 50 U.S.C. 851 (1994), is deportable under section 241(a)(4)(A)(i). Id. at 757. The Board's decision meant that, at least under this provision, the alien need not have actually engaged in espionage or counter-espionage to be deportable.

Section 212(a)(3)(A)(i) has two sub-clauses which cover similar conduct to the deportability provision in section 237(a)(4)(A)(i). An alien who is charged as inadmissible under section 212(a)(3) may be subject to summary removal, although this does not apply to returning permanent residents [see article].

ii. Endangering Public Safety or National Security

Section 237(a)(4)(A)(ii) covers “any other activity which endangers public safety or national security.”

The Board analyzed section 237(a)(4)(A)(ii) in detail in Matter of Tavarez Peralta, 26 I&N 171 (BIA 2013) [PDF version] [see article]. The Board concluded that section 237(a)(4)(A)(ii) does not require a criminal conviction. Id. at 174. However, the Board added that “the alien's conduct must be criminal-meaning it is in violation of State or Federal criminal law.” Id. The Board also noted that “the conduct must involve either 'public safety' or 'national security.'” Id. Single-victim crimes, including rape and murder, are not covered by section 237(a)(4)(A)(ii). Id. This is because the Board concluded that the offending conduct must endanger the public at large in order to render an alien deportable under section 237(a)(4)(A)(ii). Id. Adjudicators must assess the “totality of the circumstances” in determining whether conduct falls under section 237(a)(4)(A)(ii). Id.

In the instant case, the Board held that an alien convicted of violating 18 U.S.C. 32(a)(5) (2006) (for interfering with a police helicopter pilot by shining a laser light into the pilot's eyes while he operated the helicopter) was removable under section 237(a)(4)(ii). Id. at 175.

Please see our related discussion on the Board explaining that the “circumstance-specific” analysis does not apply to section 237(a)(4)(A)(ii) [see section].

iii. Activities to control or overthrow the U.S. Government

Section 237(a)(4)(A)(iii) covers “any activity a 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…”

Similarly to section 237(a)(4)(A)(i), an alien for whom the government has reason to believe is described by section 237(a)(4)(A)(iii) may be subject to mandatory detention in accordance with section 236A(a)(3)(A).

Section 237(a)(4)(A)(iii) is lightly litigated, but the plain language of the statute suggests that a conviction is not required in order for an alien to be charged with deportability under the provision.

Section 212(a)(3)(A)(iii) contains a parallel inadmissibility provision to section 237(a)(4)(A)(iii). An alien who is charged with inadmissibility under section 212(a)(3)(A)(iii) may be subject to summary removal, although this does not apply to returning permanent residents.

B. Terrorist Activities

Section 237(a)(4)(B) renders deportable “[a]ny alien described in [section 212(a)(3)(B) or (3)(F) of the INA].” Section 237(a)(4)(B) incorporates the language of two inadmissibility provisions. Therefore, we must look to the language of the incorporated inadmissibility provisions to discern the scope of section 237(a)(4)(B).

Section 212(a)(3)(B) is lengthy. For your convenience, we have uploaded the text of the statute [PDF version (start from the highlighted provision)].

Section 212(a)(3)(F) is somewhat related to section 212(a)(3)(B). It renders inadmissible any alien for whom it is determined by the Secretary of State or Attorney General “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…”

Aliens for whom the government has reasonable grounds to believe are described by section 237(a)(4)(B) and section 212(a)(3)(B) are subject to mandatory detention under section 236A(a)(3)(A). Non-permanent residents described by section 212(a)(3)(B) may be subject to summary removal. Aliens who are deportable under section 237(a)(4)(B) are ineligible for asylum and withholding of removal [see section].

Aliens subject to removal proceedings under section 237(a)(4)(B) may be subject to removal proceedings before a special court established under section 501 of the INA instead of before an immigration judge. Under section 501(a)(1) of the INA, the Attorney General may file an application for the special court to be used where he or she has classified information that the alien is an alien terrorist. The special court is composed of five United States District Court judges appointed by the Chief Justice of the Supreme Court of the United States.

Removal on terrorism grounds is a broad subject. We look forward to addressing it in more detail in individual articles on site. We will update this section with links to articles on the subject as we post them.

For a discussion of one of the relevant provisions, please see our article on Matter of M-H-Z-, 26 I&N Dec. 757 [PDF version] [see article], a decision concerning section 212(a)(3)(B)(iv)(VI) (material support to terrorist organization).

C. Foreign Policy

Section 237(a)(4)(C)(i) renders deportable “[a]n alien whose presence or activities in the United States the Secretary of State has reasonable ground to believe would have potentially serious adverse foreign policy consequences for the United States…”

There are two limited exceptions to section 237(a)(4)(C). First, we should note that the parallel inadmissibility provision to section 237(a)(4)(C) is found in section 212(a)(3)(C). Section 237(a)(4)(C)(ii) incorporates two exceptions to section 212(a)(3)(C) into the deportability provision.

First, section 212(a)(3)(C)(ii) exempts an alien who is a foreign government official, official of a purported foreign government, or a candidate for elected office in a foreign government under certain circumstances. Such an alien is not deportable “solely because of [his or her] past, current, or expected beliefs, statements, or associations, if such beliefs, statements, or associations would be lawful in the United States.” In short, this exemption protects certain government officials and politicians from foreign countries from being removed under section 237(a)(4)(B) if their “beliefs, statements, or associations” would be lawful in the United States.

Second, section 212(a)(3)(C)(iii) provides for a similar, yet broader, exemption to that found in section 212(a)(3)(C)(ii). Section 212(a)(3)(C)(iii) exempts an alien not described in section 212(a)(3)(C)(ii) from being removed under section 237(a)(4)(C) because of his or her “past, current, or expected beliefs, statements, or associations, if such beliefs, statements, or associations would be lawful within the United States…” However, the Secretary of State may nevertheless seek to remove such an alien if the Secretary determines that the alien “would compromise a compelling United States foreign policy interest.” -In such a case, the Secretary of State is required under section 212(a)(3)(C)(iv) to notify specific committee chairs in the United States House of Representatives and the United States Senate of the decision.

Section 237(a)(4)(C) is a seldom-used deportability provision. However, the Board provided a detailed analysis of the provision in its published decision in Matter of Ruiz-Massieu, 22 I&N Dec 833 (BIA 1999) [PDF version]. Please note that Matter of Ruiz-Massieu analyzed the identically worded former section 241(a)(4)(C)(i).

First, the Board held in Matter of Ruiz-Massieu that the Attorney General (Secretary of Homeland Security under current law) has the burden of proving by “clear, unequivocal, and convincing evidence” that the Secretary of State “ha[s] set forth a facially reasonable and bona fide basis for a determination under [former] section 241(a)(4)(C).” Id. at 846-47. The Secretary of State's determination must be “facially legitimate and bona fide.” Id. at 847.

In the instant case, the Board found that a letter from the Secretary of State setting forth reasons establishing that an alien was removable under former section 241(a)(4)(C) satisfied the threshold. Id. The Board noted that the letter stated “facially reasonable and bona fide reasons” for the determination. Id. at 833.

In explaining the deference given to the Secretary of State, the Board stated that “[t]here is no indication that Congress contemplated an Immigration Judge, or even the Attorney General, overruling the Secretary of State on a question of foreign policy.” Id. at 845. Accordingly, the Board held that a respondent who was not allowed to cross-examine the Secretary of State regarding the reasons for the determination was not prejudiced. Id. at 845 n.13.

The Board also held that the Government is not required to allow an alien charged with deportability under former section 241(a)(4)(C) to depart the United States voluntarily prior to the initiation of proceedings. Id. at 841.

Matter of Ruiz-Massieu makes clear that an alien is removable under section 237(a)(4)(C)

D. Participated in Nazi persecution, genocide, or the commission of any act of torture or extrajudicial killing

Section 237(a)(4)(D) incorporates the language of the inadmissibility provisions in section 212(a)(3)(E)(i), (ii), and (iii) into the deportability statutes. We will establish each of these subsections in turn.

i. Participation in Nazi persecutions

The following is the text of section 212(a)(3)(E)(i):

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There have been a significant number of immigration cases over time dealing with individuals charged as inadmissible, deportable, or subject to denaturalization on grounds involving participation in Nazi persecution, genocide, torture, and/or extrajudicial killing. However, Nazi persecution cases are becoming increasingly uncommon as most of those who would otherwise be subject to the provision have already faced immigration consequences or have died.

ii. Participation in genocide

Section 212(a)(3)(E)(ii) renders inadmissible, and by incorporation, deportable, “[a]ny alien who ordered, incited, assisted, or otherwise participated in genocide…” The term “genocide” bears the definition found in 18 U.S.C. 1091(a), which you may read here: [PDF version].

In Matter of M-B-C-, 27 I&N Dec. 31 (BIA 2017) [PDF version] [see article], the respondent had applied for a waiver of deportability under section 237(a)(1)(H), asylum, and withholding of removal. Id. At 32. Notably, all three forms of relief are unavailable to an alien who is inadmissible and/or deportable due to participation in genocide. The Board held that, “where the record contains some evidence from which a reasonable fact finder conclude that one or more grounds for the mandatory denial of the application may apply, the alien bears the burden under 8 C.F.R. 1240.8(d) to prove by a preponderance of the evidence that such grounds do not apply.” Id. at 37. In Matter of M-B-C-, the Board determined that the record contained sufficient evidence from which a reasonable fact finder could conclude that the respondent was described by section 237(a)(4)(D) (respondent having participated in the summary execution of 8,000 Bosniak Muslims in Srebrenica in July 1995). Id. at 38.

iii. Commission of acts of torture or extrajudicial killings

Section 212(a)(3)(E)(iii) renders inadmissible any alien who, outside the United States, has “committed, ordered, incited, assisted, or otherwise participated in the commission of-I. any act of torture, as defined in [18 U.S.C. 2340]; or under color of law of any foreign nation, any extrajudicial killing, as defined in section 3(a) of the Torture Victim Protection Act of 1991 (28 U.S.C.. 1350 note)…” Note that section 212(a)(3)(E)(iii) defines two separate and distinct inadmissibility provisions.

First, the definition of “torture” for immigration purposes is found in 18 U.S.C. 2340, which you may read here: [PDF version]. It is important to note that 18 U.S.C. 2340(a) requires that the alien have been “acting under the color of law.”

Second, the definition of “extrajudicial killing” is found in section 3(a) of the Torture Victim Protection Act of 1991. The Board excerpted the pertinent part of the provision in Matter of M-B-C, 27 I&N Dec. at 33:

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In reading this definition, it is important to remember that for immigration purposes, the extrajudicial killing must occur “under color of law of any foreign nation…”

The determination of whether an alien participated in torture or extrajudicial killing will also rely on a specific inquiry into the facts and circumstances of a specific case. The Board in Matter of M-B-C- concluded that there was evidence in the record which could lead a reasonable fact finder to conclude that the respondent was deportable not only for having participated in genocide, but also for having participated in extrajudicial killing. Id. at 36-38. The Board published a detailed analysis of how to determine when an alien “assisted, or otherwise participated in” extrajudicial killing in Matter of D-R-, 27 I&N Dec. 105 (BIA 2017) [PDF version], which we discuss in a full article on site [see article].

Inadmissibility and/or deportability for torture or extrajudicial killing renders an alien ineligible for a waiver of removal, asylum, and withholding of removal. In 2015, the BIA released an interesting published decision in Matter of Vides Casanova, 26 I&N Dec. 494 (BIA 2015) [PDF version]. In this decision, the Board assessed whether the respondent, in his roles as the Director of the Salvadoran National Guard and the Minister of Defense of El Salvador, had participated in torture and extrajudicial killing under section 237(a)(4)(D) of the INA. The Board found that the respondent had assisted or otherwise participated in both torture and extrajudicial killing, holding as a result that he was barred from eligibility for cancellation of removal.

E. Participated in the commission of severe violations of religious freedom

Section 237(a)(4)(E) renders any alien described by section 212(a)(2)(G) of the INA deportable.

Section 212(a)(2)(G) reads as follows: “Any alien who, while serving as a foreign government official, was responsible for or directly carried out, at any time, particularly severe violations of religious freedom, as defined in [22 U.S.C. 6402], is inadmissible.” Before continuing, it is important to note that section 237(a)(4)(E) can only be applied to an alien who committed severe violations of religious freedom while serving as a foreign government official. An alien who committed such acts but not while he or she was a foreign government official would not be subject to section 237(a)(4)(E). However, in that case the alien's conduct, depending on the specific facts of the case, could render him or her subject to other deportability provisions such as those discussed in prior sections of this article.

Section 212(a)(2)(G) incorporates 22 U.S.C. 6402 for the definition of “particularly severe violations of religious freedom” [PDF version]. This term specifically is defined at 22 U.S.C. 6402(13), as excerpted below:

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E. Recipient of military-style training

A second and distinct deportability provision was added to section 237(a)(4)(E) as part of the Intelligence Reform and Tferrorism Prevention Act of 2004, PL 108-458 (Dec. 17, 2004), 118 Stat. 3638. This language is found in section 5402 of the Terrorism Prevention Act of 2004. The pertinent provision is excerpted below:

This provision renders deportable: “Any alien who has received military-type training from or on behalf of any organization that, at the time the training was received, was a terrorist organization [as defined in section 212(a)(3)(B)(vi)(I) or (vi)(II)…]”

Section 5402 of the Terrorism Prevention Act of 2004 defines the term “military type training” as including “training in means or methods that can cause death or serious bodily injury, destroy or damage property, or disrupt services, or training on the use, storage, production, or assembly of any explosive, firearm, or other weapon, including any weapon of mass destruction [(as defined in 18 U.S.C. 2332a(c)(2))].

In short, in order to be deportable under this section 237(a)(4)(E) provision, an alien must have received “military-type training,” as defined in statute, from a designated terrorist organization as defined in section 212(a)(3)(B)(vi)(I) or (vi)(II) of the INA.

F. Recruitment or use of child soldiers

Section 237(a)(4)(F) renders deportable “[a]ny alien who has engaged in the recruitment or use of child soldiers in violation of [18 U.S.C. 2442]…” You may read 18 U.S.C. 2242 here: [PDF version].

On December 31, 2008, the United States Citizenship and Immigration Services (USCIS) published a memorandum titled “Initial Information Concerning the Child Soldiers Accountability Act, Public Law No. 110-340” [HQ 70/2.1]. The memorandum addresses both section 237(a)(4)(F) and its parallel inadmissibility provision in section 212(a)(3)(G).

The memo explained that 18 U.S.C. 2442 created a new criminal offense that applied to whoever knowingly:

  1. recruits, enlists, or conscripts a person to serve while such person is under 15 years of age in an armed force or group; or
  2. uses a person under 15 years of age to participate actively and hostility.

The memo noted that 18 U.S.C. 2442, and by effect, the immigration provisions, also reach individuals who attempt or conspire to violate 18 U.S.C. 2242.

The following is the memorandum's analysis of important definitions in 18 U.S.C. 2242:

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In general, the deportability provisions encompass aliens who pose serious security threats to the United States and those who have committed specified egregious crimes abroad. As we noted, several section 237 provisions subject aliens to mandatory detention, and those provisions and others may bar aliens from relief from removal and/or future immigration benefits in the United States.

An alien charged as deportable on any grounds should always seek the counsel of an experienced immigration attorney immediately. This is extremely crucial in cases involving deportability grounds in section 237(a)(4), which often involve complicated sets of facts and extensive evidence.