The United States government has filed its first application ever with the Alien Terrorist Removal Court (ATRC). The court’s chief judge today canceled a scheduled hearing to decide whether Nazira Haji Zada, a 47-year-old green card holder from Afghanistan who has been held without charge since July 28, should remain in federal custody while proceedings continue.
The ATRC is a specialized federal court created in 1996 to hear deportation proceedings against noncitizens suspected of terrorism in which the government wants to use undisclosed classified evidence. Court rules do not allow challenges to the evidence even if unlawfully obtained. Government lawyers allege that Zada pledged loyalty to the Islamic State (also known as ISIS) but have not charged her with any crime. She ultimately could be deported on the basis of a preponderance of evidence that she was an “alien terrorist.” Her lawyers have stated that only a summary of the evidence against her has been made available to them. US courts have repeatedly found that using secret evidence in deportation proceedings violates due process.
Zada is at risk of being returned to Afghanistan even though it is not a safe country for any forced returns. The United Nations high commissioner for human rights, Volker Türk, has cautioned against involuntary returns to Afghanistan absent individualized risk assessments because of arbitrary arrests, detention, torture, and other ill-treatment. While all women in Afghanistan face gender persecution, a woman labeled as an ISIS sympathizer and returned to the Taliban, which consider ISIS an enemy, faces additional danger.
ATRC judges may not grant asylum, withhold removal, or impose other relief normally available to judges in immigration removal cases. Even a determination as to whether Zada would be at risk of torture upon return to Afghanistan would be left with the US attorney general rather than the courts.
The use of the ATRC poses grave human rights concerns for Zada and other noncitizens who may be deemed an “alien terrorist.” The Trump administration, in activating a court that has lain dormant for 30 years, will be raising constitutional issues about the use of classified evidence and due process that need to be resolved by US appellate courts. Without a court order blocking this, many people could suffer grievously in the meantime.
