(B)  Safe Havens.  There are several possible safe havens under this ground of deportation.

 

            (1)  Requirement of Knowledge.  The Ninth Circuit held that the person providing material support must know that the organization had been designated as a foreign terrorist organization or know of its unlawful activities that caused it to be so designated, as an essential element of the offense defined by 18 U.S.C. § 2339B, or serious due process concerns would be raised.[1490] 

 

            (2)  Constitutional Issues.  The Ninth Circuit also enjoined the government from enforcing this statute against individuals who provide “personnel” and “training,” holding those terms are void for vagueness under the First and Fifth Amendments because they encompass constitutionally protected speech and advocacy.[1491]

[1490] Humanitarian Law Project v. U.S. Dept. of Justice, 352 F.3d 382 (9th Cir. 2003).

[1491] See Jordan v. DeGeorge, 341 U.S. 223, 71 S.Ct. 703, 707-708 (1951) (due process requires applying void-for-vagueness notice doctrine to grounds of deportation, but term “moral turpitude” was not void for vagueness because fraud component was well-defined).

Third Circuit

JUDICIAL REVIEW - JURISDICTION LIMITATION - TERRORIST GROUNDS NOT LISTED AS BAR
McAllister v. United States Atty Gen., 444 F.3d 178 (3d Cir. Apr. 10, 2006) (INA 237(a)(4)(B) ground of removal based upon terrorism is not listed in INA 242(a)(2)(C), and therefore does not bar court from judicial review).
http://caselaw.lp.findlaw.com/data2/circs/3rd/034513p.pdf

Fifth Circuit

INADMISSIBILITY - TERRORISM
The REAL ID Act expands the terrorism ground of inadmissibility. INA 212(a)(3)(B), as amended by the Real ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231 (May 11, 2005). There are very serious constitutional problems with the expanded terrorism ground of inadmissibility, since the law removes any link between what the applicant for admission did and any actual terrorist activity. It also expands the ground of inadmissibility to cover anyone who endorses or espouses terrorist activity, or who persuades others to do so, or supports terrorist organization, even if the activity does not actually contribute to any actual terrorist activity. These amendments apply retroactively, encompassing even acts occurring before an organization was designated as a terrorist organization.

Ninth Circuit

RELIEF - 212(C) WAIVER - TERRORIST ACTIVITY - CONDUCT BASED
Kelava v. Gonzales, ___ F.3d ___ (9th Cir. Jan. 12, 2006) (repeal of 212(c) relief not retroactively applied to noncitizen deportable under INA 237(a)(4)(B), 8 U.S.C. 1227(a)(4)(B) [terrorist activity], even though conviction pre-dated repeal, since the terrorist ground of deportation is conduct based and therefore there can be no settled expectations upset by entering a plea).
http://caselaw.lp.findlaw.com/data2/circs/9th/0373689oap.pdf

TERRORISM - PROHIBITION ON FINANCIAL SUPPORT
United States v. Afshari, 426 F.3d 1150 (9th Cir. Oct. 20, 2005) (8 U.S.C. 1189, statute prohibiting financial support to organizations designated as "terrorist" is constitutional, despite fact that defendants are precluded from collaterally attacking the designation).

Other

DEPORTATION - TERRORISM
The Real ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231 (May 11, 2005), provides that the terrorism ground of inadmissibility under INA 212(a)(3)(B), now also constitutes a ground of deportation as well, a very significant change in the law. There are very serious constitutional problems with the expanded terrorism ground of inadmissibility, since the law removes any link between what the applicant for admission did and any actual terrorist activity. It also expands the ground of inadmissibility to cover anyone who endorses or espouses terrorist activity, or who persuades others to do so, or supports terrorist organization, even if the activity does not actually contribute to any actual terrorist activity. These amendments apply retroactively, encompassing even acts occurring before an organization was designated as a terrorist organization.