The Trump administration has filed a first-ever petition to the Alien Terrorist Removal Court, a secretive tribunal created 30 years ago to consider government requests to deport so-called “alien terrorists” from the United States. The Alien Terrorist Removal Court was established in 1996 but had never received a petition until last Wednesday, when the Justice Department filed an application seeking the removal of an individual whose name is withheld. The Chief Judge has already signaled skepticism, ordering the DOJ to submit a more complete application. For removal defense practitioners, this marks a critical shift: the court is now active, and you may face cases in this forum.
What changed
The Justice Department filed an application on Wednesday seeking removal of an individual (unnamed in the public filing) through the Alien Terrorist Removal Court. The court was established in 1996 but had never received a petition until this past Wednesday. Chief Judge Joan Ericksen, who heard arguments Thursday, questioned the connection between the person’s alleged actions and the law. She ordered the government to provide more facts and legal analysis by Wednesday, saying the court had “questions about the nexus that the government alleges between the actions of the respondent and the specific sections and subsections it invokes.”
Federal law says that an individual could qualify as an “alien terrorist” by, among other factors, having “engaged in a terrorist activity,” endorsing or espousing terrorist activities and by belonging to a political or social group that encourages terrorist activity. The law sets up two stages: one private and the other public. In private, one judge decides if there is probable cause. At the public hearing, DOJ must show it is more likely than not that the person meets the law’s definition of an “alien terrorist.”
The Alien Terrorist Removal Court is a five-judge panel established by the 1996 Antiterrorism and Effective Death Penalty Act to handle deportation cases involving classified national security information. It is comprised of five judges selected by Chief Justice John Roberts.
Why it matters
Practitioners now must grapple with a removal forum that has never been tested. The first filing reveals both the procedural framework and significant gaps in how the statute will be applied—starting with the fact that the Chief Judge found the DOJ’s initial submission inadequate.
Evidence standards are permissive. Normal federal evidence rules don’t apply. The law explicitly allows the U.S. to use illegally obtained evidence. This places clients at a structural disadvantage: the government can present classified evidence your client cannot see, heard in closed session, and cross-examination rights may be limited.
Judicial review is available but narrow. The fact that Chief Judge Ericksen ordered the government to provide more “thoughtful” consideration suggests courts will scrutinize the government’s legal nexus—but the standard is still probable cause in the private phase and preponderance in the public phase, both significantly lower than the clear-and-convincing standard in most removal cases.
This is a new avenue for national security-based removals. Prior DOJ efforts to use this court were abandoned. The DOJ considered 100 possible cases by 2000 and rejected all of them, according to a 9/11 Commission staff report. Officials found ordinary immigration charges sufficient. The current administration’s decision to activate the court signals a policy shift toward using specialized removal procedures in national security contexts.
Constitutional issues remain unresolved. Because the court has never before been used, many constitutional issues remain unresolved. Questions about due process rights, the scope of classified evidence disclosure, and appellate review are likely to reach higher courts in years to come.
Way forward
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Audit your national security–related cases. If you represent a client facing removal on terrorism charges, assess whether DOJ is likely to pursue the Alien Terrorist Removal Court route. The statutes overlap with both INA § 1182(a)(3)(B) (terrorism-related grounds of inadmissibility) and § 1534 (the removal procedures). Understand that the government now has a dedicated forum.
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Request and challenge the classified evidence standard. Familiarize yourself with how the court handles Classified Information Procedures Act (CIPA) issues. Push for the maximum disclosure possible; the statute allows the judge to substitute unclassified summaries where feasible. Chief Judge Ericksen’s order suggests courts will require the government to articulate the factual and legal nexus clearly.
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Monitor for precedent. Watch for the government’s resubmitted filing and the Chief Judge’s ruling. Her analysis will define how courts interpret the terrorism definitions and what factual showing the government must make. Law Dork, Just Security, and immigration-focused news outlets will likely cover the next order.
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Preserve appellate record. The procedural safeguards in the ATRC statute differ significantly from standard immigration proceedings. Document all deficiencies in the government’s submissions, the judge’s reasoning, and any gaps in due process or evidence-handling procedures. These may form the basis for appellate challenges or future habeas petitions.
Disclaimer
This article is provided for informational purposes and does not constitute legal advice. Folaform is not a law firm. Immigration law is complex, and the Alien Terrorist Removal Court statute and procedures are newly activated and subject to ongoing judicial interpretation. Consult a licensed immigration attorney if you or a family member faces removal or is concerned about national security–based charges. Policy can change without notice. Verify all information against the primary source materials linked above and the applicable statutes before advising a client.