An estimated 4.5 million people have been deported from the US since 1996. But until this month, not one of those cases had involved the Alien Terrorist Removal Court (ATRC).
Nazira Haji Zada, 47, from Afghanistan, lived in Texas and had legal US permanent residency. According to a statment released by the Department of Homeland Security (DHS) on Wednesday, she has now returned to Afghanistan after she “conceded she is an alien terrorist and waived appeal of the removal order, terminating her previous status.”
“This landmark case, resulting in the prompt removal of this alien terrorist to her country of origin, is a win for national security and the rule of law,” said US Attorney General Todd Blanche.
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However, Zada’s public defenders Matthew Farley and Mary Manning Petras earlier said that the case “should not be seen as an endorsement of this court’s legitimacy.”
The court, founded as part of a raft of anti-terror measures after the 1995 Oklahoma City bombing, was set up to deal with non-US citizens facing terrorism-related charges on which the evidence is confidential or somehow related to national security.
ATRC never needed before
Hiroshi Motomura, a law professor at the University of California, Los Angeles (UCLA), told DW that it appears the Donald Trump administration is using the ATRC as the latest tool in its deportation toolkit.
“This is a very elaborate procedure. There are so many other ways that you can essentially get someone out of the United States by using the word terrorism in the context of removal proceedings,” he said.
“From a very practical perspective, the government’s non-use reflects its view over the last 30 years that ‘we don’t need this court because we can essentially deport people without it.’”
Zada was accused by prosecutors of being the “matriarch” of a family in which two men — son, Abdullah Haji Zada, and son-in-law, Nasir Ahmad Tawhed — had been found guilty of plotting to carry out a mass shooting on election day in 2024. Earlier this year, Blanche described the family as “ISIS-sympathizing.”
For Motomura, who has written a number of books and teaches on immigration and citizenship, one of the key distinctions between the ATRC and regular means of deportation is that those on trial do not have a chance to view the evidence against them. Their lawyers may be able to in some cases.
Secrecy inherent in operation of ATRC
“I’m speculating, although I think not unreasonably, that this is someone against whom they cannot invoke terrorism or other grounds without the kind of disclosure in court that they would not want to have,” Motomura said.
DHS said in the statement released on Wednesday that they provided Zada and her lawyers with “half a terabyte of documents,” though it did not disclose what these showed.
“So they would rather go through a more elaborate procedure and disclose it in chambers to a judge as opposed to having it be potentially more public,” Motomura said. “Because the procedure that this court provides is a procedure that calls for some disclosure, but also calls for some secrecy.”
The ATRC consists of five federal trial court judges selected by the chief justice of the US Supreme Court, John Roberts, who was appointed by George W. Bush in 2005.
The government must first apply to the court demonstrating it has probable cause to suggest a person is an “alien terrorist” under the immigration law definition. It must also lay out why proceeding through standard deportation procedures would be a national security risk. In Zada’s case this happened in July.
Then comes the hearing, in which the government need only prove their case “by the preponderance of the evidence”, a lower bar than usually applied to such cases. Zada’s decision to leave the country without the hearing means that the feasibility of the government using the court in future remains somewhat in the balance due to a constitutional point that was not tested.
Due process constitutional question yet to be resolved
“Dragging lawful permanent residents into court but refusing to show them or their attorneys the evidence that will be used against them is a plain violation of due process. We are confident that the Alien Terrorist Removal Court will be struck down as unconstitutional as soon as a judge is asked to address the issue,” said Zada’s lawyers in a statement to the Washington Post.
An amendment to the US constitution states that no state can “deprive any person of life, liberty, or property, without due process of law.” Whether this applies in cases such as Zada’s is not yet clear, something Motomura said may frustrate the Trump administration.
“I bet they were disappointed. I don’t know this, but it would not surprise me if they’re disappointed that the case never got litigated in court on the constitutional issue because it would allow them a different opportunity to limit the rights of people in the United States under the US Constitution,” he said.
Given the Trump administration’s stated “zero tolerance” policy on immigration — which has also included deporting people to so-called ‘third countries’ they have no connection with and the widespread deployment of Immigration and Customs Enforcement (ICE) agents — it seems likely it won’t be 30 years before another case is brought before the ATRC. And that could have significant implications for justice.
“I think it’s very hard to view this situation accurately without seeing it as part of a broader effort by the administration to limit access to courts and to legal counsel and access to evidence on multiple fronts,” concluded Motomura.
Edited by: Carla Bleiker
