What process must be followed to revoke a US permanent residency "green card"?

Question

It was recently in the news that the executive branch is arresting permanent residents it does not like, on the theory that their green cards are being or somehow have already been revoked.

There are some reasons for which a green card can be revoked. Who is responsible for determining whether those reason apply to a particular person? Before that determination is made, how long may a permanent resident be held in custody?

If it was found that cases for revocation were being brought frivolously, what court would be able to enjoin such an abuse?

Answer 1

I'm not speculating on the merits of the case and the conflict with the first amendment here, only answering the questions actually asked.

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Who is responsible for determining whether those reason apply to a particular person?

Attorney General, through its delegates (Immigration Judges - IJs).

Before that determination is made, how long may a permanent resident be held in custody?

A while.

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There are several different procedures in the INA for removal of permanent residents. The one that applies here, I suspect, is 8 USC 1226, and specifically:

(c) Detention of criminal aliens

(1) CustodyThe Attorney General shall take into custody any alien who—

...

(D) is inadmissible under section 1182(a)(3)(B) of this title or deportable under section 1227(a)(4)(B) of this title, or

Section 1182(a)(3)(B) is this:

(B) Terrorist activities

(i) In general

Any alien who—

(I) has engaged in a terrorist activity;

(II) a consular officer, the Attorney General, or the Secretary of Homeland Security knows, or has reasonable ground to believe, is engaged in or is likely to engage after entry in any terrorist activity (as defined in clause (iv));

(III) has, under circumstances indicating an intention to cause death or serious bodily harm, incited terrorist activity;

(IV) is a representative (as defined in clause (v)) of—

(aa) a terrorist organization (as defined in clause (vi)); or

(bb) a political, social, or other group that endorses or espouses terrorist activity;

(V) is a member of a terrorist organization described in subclause (I) or (II) of clause (vi);

(VI) is a member of a terrorist organization described in clause (vi)(III), unless the alien can demonstrate by clear and convincing evidence that the alien did not know, and should not reasonably have known, that the organization was a terrorist organization;

(VII) endorses or espouses terrorist activity or persuades others to endorse or espouse terrorist activity or support a terrorist organization;

(VIII) has received military-type training (as defined in section 2339D(c)(1) of title 18) from or on behalf of any organization that, at the time the training was received, was a terrorist organization (as defined in clause (vi)); or

(IX) is the spouse or child of an alien who is inadmissible under this subparagraph, if the activity causing the alien to be found inadmissible occurred within the last 5 years,

is inadmissible.

The news article suggests that the part I highlighted was indeed the rationale:

The Department of Homeland Security can initiate deportation proceedings against green card holders for a broad range of alleged criminal activity, including supporting a terror group.

8 USC 1227(a)(4)(B) brings us back to the same list:

(4) Security and related grounds

(B) Terrorist activities

Any alien who is described in subparagraph (B) or (F) of section 1182(a)(3) of this title is deportable.

There's also the 8 USC 1226a, which demands mandatory detention of terrorists, using the same definitions:

(a) Detention of terrorist aliens (1) Custody

The Attorney General shall take into custody any alien who is certified under paragraph (3).

...

(3) Certification

The Attorney General may certify an alien under this paragraph if the Attorney General has reasonable grounds to believe that the alien—

(A) is described in section 1182(a)(3)(A)(i), 1182(a)(3)(A)(iii), 1182(a)(3)(B), 1227(a)(4)(A)(i), 1227(a)(4)(A)(iii), or 1227(a)(4)(B) of this title; or

(B) is engaged in any other activity that endangers the national security of the United States.

Note, that the AG decides, and needs to have reasonable grounds to believe, not necessarily a criminal conviction.

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You're also asking:

If it was found that cases for revocation were being brought frivolously, what court would be able to enjoin such an abuse?

The AG has a pretty wide discretion to detain aliens as per the INA, see 1226(e):

(e) Judicial review

The Attorney General’s discretionary judgment regarding the application of this section shall not be subject to review. No court may set aside any action or decision by the Attorney General under this section regarding the detention of any alien or the revocation or denial of bond or parole.

The certification in 8 USC 1226a(a)(3) can be reviewed in Federal court:

(b) Habeas corpus and judicial review

(1) In general

Judicial review of any action or decision relating to this section (including judicial review of the merits of a determination made under subsection (a)(3) or (a)(6)) is available exclusively in habeas corpus proceedings consistent with this subsection.

Once the removal order is entered by the IJ and the administrative process is exhausted, it can be appealed (and in some cases for LPRs the appeal is automatic) under 8 USC 1535 to the United States Court of Appeals for the District of Columbia Circuit.

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You also ask for how long can a person be detained.

8 USC 1226e(a)(6) has this to say:

(6) Limitation on indefinite detention

An alien detained solely under paragraph (1) who has not been removed under section 1231(a)(1)(A) of this title, and whose removal is unlikely in the reasonably foreseeable future, may be detained for additional periods of up to six months only if the release of the alien will threaten the national security of the United States or the safety of the community or any person.

So... not forever? or maybe yes forever? While the section is titled "limitation on indefinite detention", it doesn't actually provide any such limitation except the need to extend the detention every six months, if the government is so inclined.

Answer 2

In general, a person's US permanent resident status (i.e. green card) can only be "revoked" by being ordered removed (i.e. deported). There are some other ways permanent residency can be lost, but they are not really relevant here:

• Conditional permanent resident status for people who got their green card through a marriage less than 2 years old, or for EB5 investors, can automatically end at the end of the two years of conditional permanent residency if the person fails to apply for Removal of Conditions, or Removal of Conditions are denied due to lack of evidence of bona fide marriage or EB5 job creation, or it can be terminated if the person's marriage ends or there is fraud, but the conditions only relate to the marriage or the EB5, and cannot be used to revoke status for other reasons.
• USCIS can institute "rescission" proceedings within 5 years of someone getting a green card through Adjustment of Status within the US, if the Adjustment of Status was approved in error or they were ineligible for Adjustment of Status. This is similar to removal proceedings, but are only for if the green card shouldn't have been granted in the first place, not for other reasons.
• The person can voluntarily relinquish their permanent residency by signing form I-407

When a permanent resident is put through removal proceedings, they remain a permanent resident until a "final administrative order of deportation", meaning when a decision is made by the Board of Immigration Appeals (BIA), or when the appeal from the immigration court is waived or not pursued within the appeal period. See Matter of Lok (1981):

(1) The lawful permanent resident status of an alien terminates within the meaning of section 101(a)(20) of the Immigration and Nationality Act, 8 U.S.C. 1101(a)(20), with the entry of a final administrative order of deportation, i.e., when the Board renders its decision in the case upon appeal or certification or, where no appeal to the Board is taken, when appeal is waived or the time allotted for appeal has expired.

In the case of the people in question, they have not gotten an order of removal from an immigration judge, let alone the BIA, so their permanent resident status has not yet been "revoked".

When you talk about reasons someone's green card can be revoked, you are basically talking about reasons a US permanent resident can be deported. The grounds of deportability are provided in the various subsections of INA 237 (8 USC 1227).

The determination of whether someone is deportable is made in removal proceedings before an immigration judge in immigration court, as provided in INA 240 (8 USC 1229a). Decisions of the immigration judge can be appealed to the Board of Immigration Appeals (BIA) as provided in 8 CFR 1003 subpart A. Both immigration judges and BIA members work for the Department of Justice (part of the executive branch), and are under the control of the Attorney General and are not truly independent. Furthermore, the Attorney General can personally overrule BIA decisions, as provided in 8 CFR 1003.1(h).

If the person believes that the decision of the immigration judge, BIA, or Attorney General conflicts with the law or the Constitution, they can seek review of the decision in federal appeals court (part of the judicial branch). This may be further appealed to the US Supreme Court if the Supreme Court chooses to hear it. In a high-profile case such as referenced here, with significant legal and constitutional questions, and wide ranging implications for future cases, it will likely be appealed to federal appeals courts, if not the Supreme Court. So the final deciders will probably be federal judges. Note that unlike the appeal to the BIA, the appeal to the appeals court does not automatically pause the removal; however, the person will usually ask the appeals court to issue a stay of the removal until the case is decided.

As for detention while awaiting a removal hearing in immigration court, the US Supreme Court ruled in Jennings v. Rodriguez (2018) that a permanent resident who has been detained for a long time while awaiting a removal hearing does not have to be given periodic bond hearings.

Interestingly, for removal on terrorist grounds (INA 237(a)(4)(B)), which is likely one of the grounds of deportability that will be charged in the case in question, the government can pursue removal in a special court as provided in Title 8, chapter 12, subchapter V, where classified evidence can be used without presenting it to the defendant, instead of in regular immigration court. I cannot find much information about this process. The statute provides that decisions of this court can be appealed to the DC Circuit court of appeals, and provides that permanent residents who are detained while awaiting the removal hearing are entitled to a release hearing.

Answer 3

To supplement and partly challenge the other answer: there is arguably no constitutional process to use speech as justification for revoking residency.

The other answer correctly noted that in the united-states, 1182(a)(3)(B) of the US Code specifies that an immigrant who entered the country legally and has legal status within the country can nonetheless be deported for endorsing terrorism.

However, this seems to be in clear conflict with the prevailing and frequently used "imminent lawless action" test from Brandenburg v. Ohio, which precisely addressed the notion of whether endorsing illegal activities by itself was protected by the First Amendment, finding that it was. Only the much narrower category of speech that was both intended to and likely to cause illegal activity in the near future—in other words, speech that was all but orders to carry out a crime—was considered outside the protections of the First Amendment. While a much broader conception of freedom of speech than present in many other countries, it is nonetheless the prevailing interpretation in case law in the USA.

Insofar as the First Amendment applies to documented immigrants, the mentioned section of the code would be in evident conflict with Brandenburg. Regarding this, Bridges v. Wixon, while a bit older case law, clearly suggests that immigrants who have entered the country lawfully are subject to the First Amendment. As noted in Murphy's concurrence with the majority:

[O]nce an alien lawfully enters and resides in this country he becomes invested with the rights guaranteed by the Constitution to all people within our borders. Such rights include those protected by the First and Fifth Amendments and by the due process clause of the Fourteenth Amendment. None of these provisions acknowledges any distinctions between citizens and resident aliens.

As recently as 2015, the Department of Justice implicitly supported this idea in its argument in Pineda-Cruz v. Thompson, saying that:

[A]s non-resident aliens who have not gained admission or entry to the United States–and have not established any connections to the United States–Plaintiffs are not entitled to prevail in a lawsuit challenging violations of the Constitutional protections of the First Amendment.

While the intention of this was clearly to argue that undocumented immigrants were not subject to such protections, the evident implication is that immigrants who have "gained admission or entry to the United States" are indeed subject to them, per Bridges.

While there are many cases that might seem to render this ambiguous, they tend to either apply to undocumented immigrants, such as the aforementioned Pineda-Cruz, or even to people who were not immigrants at all when the alleged violation of their rights occurred (Kleindienst v. Mandel, International Refugee Assistance Project v. Trump), with few exceptions (e.g. Harisiades v. Shaughnessy).

Note that here I am not attempting to determine whether the specific individual from the case mentioned in the question did or did not endorse Hamas's attacks, but rather pointing out that if they or any other documented immigrant did so, the weight of First Amendment case law would lean toward such an endorsement being protected speech.