72 Am. U. L. Rev. 1087 (2023).

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Abstract

The Immigration and Nationality Act sets forth three distinct tiers of terrorist organizations. Unlike Tiers I and II, Tier III does not require official designation in the Federal Register by cabinet level officials. Instead, the tier calls for case-by-case adjudication by executive branch employees such as asylum officers and immigration judges. Noncitizens who engage in certain activities with or who have certain ties to any of the three tiers of organizations are inadmissible to the United States and barred from most forms of immigration relief, subject to limited exceptions. Nevertheless, in recent years, a variety of entities—including the Trump administration—have called for officially designating transnational gangs as terrorist organizations.

This Comment argues that transnational gangs should not be considered Tier III terrorist organizations because careful statutory interpretation demonstrates they are not a definitional match. First, through application of the whole text canon of construction, this Comment concludes Congress intended a political motivation requirement to terrorist organizations. Further, the avoidance of absurdity canon demonstrates a broad reading of the Tier III statute is impermissible. Third, this Comment explains why a direct authorization requirement to terrorist activity and limitations to the term “subgroup” are properly implied into the Tier III statute. Applying these principles to transnational gangs, this Comment concludes that the gangs cannot permissibly be construed as Tier III terrorist organizations.