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Comment by godelski | Hacker News Reader

Can some lawyer explain why these questions are necessary? I understand that you can add extra convictions for lying on these applications, but all the above questions are quite damning themselves. Like

>> Are you a member or representative of a terrorist organization?

Assuming you are: you answer yes and you get denied a visa (duh). Answer no and the gov doesn't know, what happens? You commit terrorist activities on American soil and get charged with that activity, which I assume is FAR worse than the punishment for lying on a Visa (if it isn't, somethings wrong). Can we not kick out a terrorist (found out after they entered) without this question?

It seems like the same goes for every single one of the above questions (except the first one, "Have you ever done drugs"). Every one of these questions is always going to be answered with a no, so doesn't that just create noise in the data?

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I thought the idea was that if it's found out later that you are a member of a terrorist organization you can be kicked out, even if you haven't yet done anything explicitly illegal, because you lied on the Visa application.

Isn't being a member of a terrorist organization enough to kick them out?

It probably depends. I would think that an alien can be deported arbitrarily regardless of anything (having no absolute right to be in the country to begin with, can be rejected arbitrarily at passport control etc.), but usually in a court of law you can't be penalized for "being" something, only for doing or having done something.

From a legal standpoint that's problematic since the government would be imposing a punishment on acts committed outside its jurisdiction--possibly ex post facto as well.

I don't think extradition counts as a punishment like jail time, it's the revocation of a privilege, but I might well be wrong.

But a lot of countries have laws which say that you can be prosecuted upon your return for doing anything outside of the country which is illegal inside the country.

Western countries generally only invoke extraterrestrial jurisdiction in matters concerning basic human rights. Laws criminalizing sex with minors oversea are arguably domestic implementation of international law. Sexual slavery is not a choice that sovereign states can make.

A lot of those are because there are specific laws barring people who have done those things from entry. Ideally, having those questions on the form (and the obvious implication that a "yes" entry means a denial of visa) educates the applicant not to continue applying, or if the offense is something which could be resolved, to prepare documentation for that.

I'm sorry, but what terrorist is going to say "Damn, they check for terrorists? I guess I won't apply." I don't think you even need the context of America's presence in the Middle East to figure out that terrorism is illegal. It isn't like it is only illegal in America. Same for things like human trafficking.

I can see that with the "have you ever done drugs" question, but terrorism or human trafficking? That's quite a stretch. You don't have to ask the question for someone to know that those activities would bar entry. I'd have to see pretty strong evidence to believe that a question like that is going to even give pause to people like that.

Those just cover the gov’ts ass.

Of course no one will answer yes, but if the govt finds out later you did commit a terrorist act, they have the power to boot you out.

But that circles back to my original question. How does the gov not have the power to boot you out (or jail) just from committing the terrorist act in itself? OR even just from finding out that said person has terrorist ties? I don't buy the answer of needing the question to boot someone out. You can already boot them out for committing crimes. And I'm sure there's a question along the lines "Do you intend to commit a crime while in the US?" (I'm sure this is already on there) The above questions definitely fall under this. So I don't understand how these questions don't just become noise. I'd imagine noise in these forms leads to more mistakes too.

As per the previous comment, most of it comes from the way the laws were written. If immigration law says “members of a terrorist group can’t get citizenship”, then USCIS has to have a process for following it. In addition to background checks, they ask the question.

In terms of booting them out, the question makes it much easier. If they are a member of a terrorist group and they said “no”, well it’s an open and shut case of lying on an immigration application. If they didn’t ask the question, sure they could still boot them out, but it may be a prolonged process.

But doesn't proving that the person has lied also require additional efforts, and if that person will contest the desicion in court, can become a long process?

I would argue that proving somebody lied on an application would be easier than proving something like “this person is a danger to the US”. The 2nd is much subjective.

I'm actually okay with that. Read it the other way around. You can only kick someone out for being dangerous if you can prove they are dangerous.

To prove that he lied on the application form, they would have to legally prove him as a terrorist. The legal process of proving someone is a terrorist would be same. So isn't it pointless?

I don't think judicial courts accept challenges to rulings by administrative judges as a matter of course.

I guess to kick people out who have terrorist ties even if they don’t commit any crimes while in the US?

That seems like the job for the NSA or CIA though. To flag these individuals.

There is an FBI database they use to do background checks. Last time I heard there is a huge backlog and it’s delaying cases by a lot.

It’s actually Department of State databases, specifically, CLASS (Consular Lookout and Support System) and the TIDE (Terrorist Identities Datamart Environment) systems that are used. There is also (as you mentioned,) an FBI fingerprint and name check that is completed, but that’s for domestic (US) criminal records and not specific to overseas terrorism.

> But that circles back to my original question. How does the gov not have the power to boot you out (or jail) just from committing the terrorist act in itself?

Because they have to prove it in court. And the defendant can ask for a lawyers. And then both the cost, and the level of proof required is a lot higher. Will the US have enough time and resources to go to the originating country and inspect all the evidence, check the archives and so on? Probably not for every case.

The alternative they just need to prove they lied on a form and they signed and acknowledged that lying on it means getting kicked out. That's a simple and shut case most of the time.

To prove that they lied on the form, wouldn't they have to legally prove that he is a terrorist and go through the same legal process which you said will be avoided?

It seems pointless.

I believe it is 1) different venue for trial (administrative vs a criminal case) and possibly 2) different standard of proof, especially for non permanent residents.

(Not a lawyer nor an immigration expert on US law, though.)

> Of course no one will answer yes, but if the govt finds out later you did commit a terrorist act, they have the power to boot you out.

Wouldn't the terrorist act do the trick?

And don't we mostly imprison people forever when they do those?

> I guess I won't apply."

Of course not. They would lie. And then the US government can then kick them for fraudulently obtaining their citizenship. That's a lot easier and simpler than having to convict them on terrorism charges. So the US government, is doing this assuming they will lie.

RFC3514! So basically a “Please reject my visa application” check mark.

Even if you were willing to answer this honestly it can even become extremely hard to actually answer: what it is deemed a “terrorist” organisation? Maybe your home country would not consider some group as such but the US does? What about drug usage? It’s not even consistent across US states, let alone a different country.

To properly fill this you’d have to be a law expert in both US law, your home country’s, and probably international law too to resolve the impedance mismatch between both.

Or fib. Which you are sometimes pretty much forced to do.

> I understand that you can add extra convictions for lying on these applications

You simply get kicked out pretty much immediately if they find out you lied. It can mean also the revocation of citizenship as it is now considered obtained fraudulently. That all can be done rather "easily" since it's procedural, without a long legal battle involved.

Now all kinds of "funny" things can happen there. Say someone belongs to an organization which was created and sponsored by the CIA and was not a terrorist organization 10 years ago. A new administration comes in, and the "friendly freedom fighters" are now the "evil baby killing terrorists". What should happen then? Can the government go back and kick out all the members they might have taken in? Technically they lied and they are now a part of the terrorist organization...

That one seems pretty simple.

If you played for a team, you were a member of that team.

If 10 years after you leave, that team goes on to win the championship, you are not and were never part of a "championship team."

Terrorist groups don’t have formal rosters the way sports teams do. It is sort of like “former intelligence officer”. It is definitely a strong argument (strengthened by time and distance separation, degree of clear separation or renunciation, etc) but it would almost certainly cause delays and substantial extra investigation, if nothing else.

I'm not sure what the underlying legal theory is in defining terrorist groups, but maybe ex post facto applies here. If the defining of the group as terrorist is done by passing of a law then this is pretty open and shut. If it's done by executive order then I'm not sure. It might go to the supreme court.

I think there are several reformers who were former terrorists. They work to de-radicalize youth. This should apply to those kind of edge cases

I don't know if they still have it, but there used to be a similar question about communism, and all you had to say was "yes, but everyone had to".

I think the question about terrorists is in fact a hidden lottery that allows to win a free trip to Guantanamo with unlimited accomodation and catering.

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