The Justice Department is now testing a decades-old, classified court mechanism that has never been invoked in an actual case. The department is attempting to use a secretive federal immigration court to expedite the deportation of suspected “alien terrorists.” This marks the first practical application of a removal pathway designed specifically for national-security-sensitive cases.
What changed
The Alien Terrorist Removal Court was created by Congress in 1996 and signed into law by President Bill Clinton. It was set up to deport noncitizens who could not be removed by the traditional legal process because the information about their cases was classified and could not be made public for national security reasons.
The court has never been utilized by the government, but its structure is similar to the Foreign Intelligence Surveillance Court. The targets of noncitizen terrorist removal proceedings—including legal permanent residents—are not permitted to review the classified evidence against them, and unlike criminal proceedings, they are barred from legally challenging how the evidence was collected by the government. Only the attorney general may approve “alien terrorist” removal applications by law.
Last year, the Justice Department tried a different approach invoking the Alien Enemies Act of 1798 to deport suspected members of the Venezuelan criminal group known as Tren de Aragua. Chief Judge James Boasberg of the U.S. District Court for the District of Columbia opined that the best forum for addressing removal cases involving sensitive national security matters was the Alien Terrorist Removal Court.
Why it matters
If DOJ succeeds in using this court mechanism, it creates a parallel removal track for cases involving alleged terrorist associations where classified information cannot be disclosed. This affects:
- Due process framework: Unlike traditional immigration court, respondents cannot see or challenge classified evidence against them, and cannot contest government collection methods.
- Practitioner strategy: You will need to develop a distinct defense playbook for cases potentially subject to Alien Terrorist Removal Court proceedings, focusing on challenging declassification or arguing the case does not meet the statutory predicate.
- Client rights: Noncitizens, including legal permanent residents, lose standard discovery and confrontation rights in these proceedings.
- Precedent: A successful first test case will establish this court as an operational option for future terrorist-designation deportations.
The fact that no administration has invoked this court in 30 years—despite its availability—suggests significant legal or political hurdles. Understanding why DOJ is attempting it now, and how courts respond, will shape removal defense strategy for national-security-adjacent cases.
Way forward
- Monitor the case closely: Follow court filings in the Alien Terrorist Removal Court test case to understand how the court interprets its own procedural rules and what barriers apply to admitting classified evidence.
- Audit your current clients: If you represent noncitizens with any terrorism-related allegations or government scrutiny, begin assessing whether they could become targets under this framework.
- Prepare a declassification strategy: For future clients subject to Alien Terrorist Removal Court proceedings, research grounds for challenging or declassifying government evidence under the Classified Information Procedures Act (CIPA).
- Consult secondary sources: The FBI, DOJ National Security Division, and EOIR websites may publish guidance on the court’s procedural rules once the test case proceeds.
Disclaimer
This article is provided for informational purposes only and is not legal advice. Folaform is a software company, not a law firm. Immigration law is complex and changes without notice. You must consult a licensed immigration attorney to assess your specific situation and verify this information against the primary source linked above and current agency guidance. Policies and procedures described herein may be updated or reversed without advance notice; always confirm current requirements with the relevant agency before filing or advising clients.