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April 2002September 11 Aftermath: Immigration EffectsPart II by Steven S. Miller and Laurie Bernbaum September 11 was a major failure of American efforts to protect the country from foreign terrorists. The tragedy's impact on the general trends of U.S. immigration law was discussed in Part I. This article addresses more specific measures and legal responses that the government has chosen or is considering adopting to meet the challenge of terrorism. The debate on these measures reflects the ongoing balance between civil liberties and national security. Critics argue that many of these measures unduly target foreign nationals and are strongly suggestive of ethnic and racial profiling. Such measures include the establishment of military tribunals to prosecute accused terrorists; modified federal regulations offering greater powers to detain foreign nationals suspected of terrorist activity and monitor conversations between detainees and their lawyers; a concentrated effort to arrest and detain hundreds of Middle Eastern men; a program to give special immigration status to those who provide useful and reliable information about suspected terrorists here and abroad; implementation of special security clearance procedures for U.S. visa applicants from 26 designated countries; a federal plan to interview 5,000 young Middle Eastern men who have entered the United States on temporary visas since January 2000; and incentives, without clear protections, for foreign nationals who provide information relating to terrorism. Finally, this article looks at the challenge of tracking and keeping records of all aliens in the United States. In what has been the government's most controversial measure, the implementation of military tribunals has created a swift path to justice for noncitizen accused terrorists, raising numerous legal and procedural questions. On November 13, 2001, President Bush established tribunals as a military order in his constitutional capacity as commander in chief of the armed forces. Some critics believe military tribunals are unnecessary and that the government's success in prosecuting terrorists in federal courts over the last decade warrants a continuation of the system already in place. The use of military tribunals appears to jeopardize the major tenets of the American judicial system, including, among others, the right to due process, the right to appeal, the right to a jury trial, and strict evidentiary standards. Military tribunals allow prosecution of any noncitizen if the president has "reason to believe" that such an individual is or was a terrorist or "conspired to commit acts of international terrorism" against or threatened to cause injury to the United States. Furthermore, the trials are allowed to take place in secret and allow the use of confidential evidence against the accused, which may not be accessed or contradicted by the accused's attorney, a military officer appointed to represent the defendant. Also in this setting, suspected terrorists will be tried not before a jury, but rather, a commission made up of military officers serving as judge and jury. The evidence of the accused's guilt does not have to meet the "beyond a reasonable doubt" standard, but merely "have probative value to a reasonable person." Finally, the conviction and sentencing can be reached by only a two-thirds vote of the commission's members. The American Bar Association passed a resolution in February calling for such tribunals to incorporate traditional American standards of fairness including the presumption of innocence, proof beyond a reasonable doubt, unanimous verdicts in death-penalty cases, and appeals to the U.S. Supreme Court. The ABA also called for tribunal proceedings to be open to the public and press, or when necessary, to be closed, so trial observers with appropriate security clearances are allowed to attend. Since the administration has not yet issued any specifics for tribunals, it argued the ABA resolution was premature.1 The draft versions of regulations already call for some of the provisions including the presumption of innocence for defendants and a unanimous verdict for capital punishment.2 The only person charged so far in connection with the September 11th attacks, a French Moroccan, Zacarias Moussaoui, was not charged in a military tribunal, but in federal court, with six counts of conspiracy charges. Moussaoui was arrested prior to the attacks because of his suspicious behavior in flight school in Minnesota. The military tribunals may, however, be used to determine the fate of prisoners captured in Afghanistan and held in Guantanamo Bay. In a broad effort to thwart future attacks, the United States has conducted a nationwide search for terrorists. While this pursuit has resulted in the arrests of more than 1,000 people, only a small number of those detained were believed to have any links to terrorism. Immediately following September 11, more than 700 people were held on immigration charges. To date, the Immigration and Naturalization Service (INS) reports that 326 people are still detained, down from 460 in January. A handful are still being investigated as possible terrorists. The vast majority, found to have no involvement with the terrorist activity of September 11, were handed over to INS for immigration violations, usually overstaying a tourist or work visa. Despite having been absolved of any link to terrorist activities, the Justice Department has blocked the release of at least 87 detainees who have either been ordered deported or granted voluntary departure. Justice Department officials say they are going through new information gained about Al Qaeda to ensure that none of the detainees have terrorist ties. Civil-rights advocates are concerned by what they say is essentially indefinite detention without a criminal conviction or even a criminal charge. In addition, several interim regulations have taken immediate effect in response to the terrorist attacks. Critics argue that many of these provisions are too broad in scope, essentially permitting detention and deportation of individuals engaging in legitimate pursuits deemed to be associated with terrorist activity. On September 20, 2001, immediately following the terrorist attacks, a new Interim Final Regulation (8 CFR §287.3(d)) took effect, requiring a determination in the event an alien is arrested without a warrant whether to charge or release the detainee within 48 hours of arrest and detention. However, this same provision also essentially provides for detention without charges for a longer, indefinite period of time, or "an additional reasonable period of time," in the event of "an emergency or other extraordinary circumstances." Upon enactment of the USA PATRIOT Act (discussed in Part I), which provides extensive detention provisions, the regulation's authorization to detain for "an additional reasonable period of time" arguably has been restricted by the specific provision in the USA PATRIOT Act which limits the period of detention without charges to a maximum of seven days where an alien has been "certified." However, individuals who have violated their immigration status may still be held on immigration charges without the possibility of release on bond, as indicated by the 326 people still detained. Another federal regulation, 8 CFR 3.19(i)(2), has emerged which further expands INS power to detain foreign nationals. Effective only three days after being signed by Attorney General Ashcroft and published in the Federal Register only five days later on October 31, eliminating the prescribed comment period, the rule allows a foreign national to remain detained even after an immigration judge has ordered him to be released for lack of evidence. The change allows the INS to set aside any release order issued by an immigration judge in cases where the INS believes the individual to be a danger to the community or a flight risk. To have such a ruling set aside, the INS simply has to file a form indicating an intention to appeal to the Board of Immigration Appeals (BIA). The person then remains detained, and the INS has 10 days to decide whether to appeal. If the INS files a notice of appeal, the stay of the judge's order continues until the BIA issues a decision. Even if the BIA orders the detainee released, the INS can also set aside that order, under the new regulation, by certifying the case to the attorney general. Critics argue that the new rule deprives the detainee of the fundamental right of bond hearings where the immigration judge weighs the evidence to decide whether a detainee should be allowed to be free on bond. But now, regardless of the outcome of those hearings, the government can continue to hold detainees by filing a form to automatically stay the order. This modified regulation ignites the heated constitutional question of due-process rights of foreign nationals on U.S. soil. The fight against terrorism also threatens to jeopardize the attorney-client privilege. Another interim regulation3 which has taken immediate effect gives permission to eavesdrop on attorney and detainee client communications where the attorney general has certified that there is a reasonable suspicion that such communications are being used to further acts of violence or terrorism. Advance notification is required except in the case of a prior court order.4 A senior government official, according to The New York Times, acknowledges: "The priority now is stopping terrorist activity, saving American lives and not on getting evidence that's admissible in court."5 This urgency also has fueled suspicions that proposals to stop money-laundering may impinge on confidential communications between lawyers and their clients. The ABA also approved a resolution urging Congress to protect the confidential relationship between lawyers and their clients in the passage of any new law to cut off and track the cash flow to terrorist organizations. Some foreign governments place greater burdens on professionals, including lawyers and accountants, to report suspicious financial activity by clients. The ABA urged the U.S. government not to adopt rules that could chill the relationship between attorneys and their clients and potentially hamper legitimate business transactions. Another aggressive step prompted by future terrorist attacks, a plan to interview 5,000 Middle Eastern men aged 18 to 33 who entered the United States from countries linked to terrorism on temporary visas since January 2000, has been met with considerable criticism. While the interviews are required to be "voluntary," and the men interviewed "are not suspected of any terrorist activity," should the interview lead to further interest or suspicion of criminal activity, the men may be immediately held without bond. The INS has indicated that where INS agents are not present at the interviews and the interviewer suspects that a particular individual is in violation of status, those cases are expected to be referred to the INS by law-enforcement officers. This questioning has been portrayed as yet another example of a targeted investigation of a select group of individuals based solely on national origin resulting in discriminatory profiling. Moreover, the possibility of being detained, together with the atmosphere of a coercive investigation, may cause voluntary attendance at these interviews unlikely, thereby resulting in a less-than-voluntary program. Some law-enforcement agencies have indicated they would not participate in this plan, citing violation of departmental policy, state or local laws against racial profiling, or intelligence-gathering for political purposes. In an effort to appease critics of the laundry list of measures initiated in direct response to the events of September 11, the government has been aggressively promoting a plan already in existence for seven years (the "S" visa classification, aka the "snitch" visa) in an effort to reduce crime and terrorist operations, to reward those who present reliable and useful information related to terrorist activity with legal immigration status in the United States. The Responsible Cooperators Program is designed to provide incentive for foreign nationals in the United States and abroad to provide information to the government in its widening terrorist investigations. The "S" nonimmigrant status is available to certain informants who have critical reliable information regarding either criminal organizations, the S-5 visa (200 per year), or terrorist operations, the S-6 visa (50 per year). The program allows a foreign national who obtains this status to remain in the United States for three years even if he had previously come to the United States illegally. For those who are not eligible for the S visa, but do provide useful information in the apprehension of terrorists or prevention of future terrorist acts, the government may consider delaying removal proceedings. As with the plan to interview 5,000 men on a "voluntary" basis, this program creates a dilemma for those who believe that while they may be rewarded for coming forward with information, they may also be subject to arrest and detention based on the vast number of new provisions in place should they have committed a minor immigration violation. The Justice Department has ensured that the program would be organized so that informants are not asked their visa status, nor would their status be used against them. An additional issue which remains unclear is how a determination will be made as to the useful and reliable quality of the information provided. The rules provide that a Justice Department official must make a recommendation, and the attorney general and secretary of state both must agree the information is useful and reliable. The attorney general has stated that the information does not have to lead to a conviction and may even appear insignificant to the informant. Critics argue that promoters of this program offer few assurances to those who come forward with information, and are inconsistent with the threat of arrest and detention inherent in many of the recently implemented executive orders and regulatory changes. Most recently, the Justice Department has turned its attention to the immigration court system and the severely backlogged appeals process in further efforts to account for foreign nationals present in the United States, and speed the process that could lead to the their deportation. The Justice Department has introduced a proposed rule involving drastic procedural reforms at the BIA, the court that reviews immigration court decisions, including cutting the number of board members from 19 to 11. The proposed rule seeks to reduce the backlog of 55,000 cases pending before the BIA through numerous means, most notably by requiring most appeals to be heard by one judge instead of the current three-member panels, means critics say would jeopardize noncitizen rights. Despite the heated debate sparked by most of the above-mentioned measures initiated in direct response to September 11, Congress, the administration, and immigration advocates alike agree that improved national security and effective entry- and exit-tracking measures are imperative. Existing laws provide for two key anti-terrorism measures but were never fully implemented as a result of huge technological barriers and competing political interests. These measures call for an automated system to record when a foreigner enters and leaves the country, and for a student-visa database. The student-visa database program, Coordinated Interagency Partnership for Regulating International Students (CIPRIS), was created to provide a means of sharing student information between the INS and educational institutions, and track students violating the terms of their visas or those involved in criminal activity. Disputes over collection of fees and objections to targeting foreign-national students resulted in significant implementation delays. Similarly, a tracking system to monitor the entry and exit of every foreign national (estimated from 350 million to over 500 million entries)6 posed enormous logistical nightmares. The INS has not shown itself able to manage much smaller database problems.7 Further, even adding a few minutes to every entry on our land border would tie up border traffic for long hours. Such border gridlock met with extreme resistance and ultimately was postponed due to serious concerns about the economic livelihood and overly burdensome backups for border communities. This is an area of particular concern in Washington, with potentially tremendous impact on local businesses dependent on Canadian commerce. Given the obstacles to the above-mentioned measures, but recognizing the dire need for improved tracking and monitoring capabilities, Congress has been focusing great attention on border security and entry/exit monitoring. On December 19, the House passed the Enhanced Border Security and Visa Entry Reform Act of 2001. The Senate, however, has yet to pass its companion border-security measure. Both bills include many needed reforms aimed at deterring terrorism, and share many provisions in common, including authorizing increased funding for the Department of State and the INS; requiring federal agencies to coordinate and share information needed to identify and intercept terrorists; providing improved training for consular officers; authorizing funds to improve technology; requiring more pre-inspections abroad; and mandating in-flight transmittal of passenger lists, focusing attention on the implementation of a North American Perimeter Safety Zone; increasing access to lookout lists; creating a workable and integrated entry-exit control system; and implementing changes in the Foreign Student Monitoring Program. These measures are aimed at increasing the layers of protection that stand between the United States and any potential adversaries from abroad, while allowing for the continued flow of family-based and business-based immigration, refugees and asylees. Given the current state of heightened alert at our borders, foreign nationals residing in the United States who have no association with terrorist activities are frightened, and perhaps rightfully so. In light of these new stringent and broad measures aimed at restricting mobility and increasing scrutiny of foreign nationals, it is recommended that all non-U.S. citizens carry documentation demonstrating proof of valid status at all times, as well as inform the INS of changes of address. A little-known provision in the Immigration and Naturalization Act (INA), which to date has generally not been enforced, requires every non-U.S. citizen 18 or over to carry with him and have in his possession any certificate of alien registration receipt (such as a green card, I-94 card or EAD card) issued to him. Failure to comply with this documentary requirement is a misdemeanor offense punishable by fine or imprisonment. An additional provision deems deportable a non-U.S. citizen who does not notify the INS of changes of address unless such failure was reasonably excusable or not willful. Again, while the INS has not generally enforced or pursued violations of these provisions, in light of the current climate, foreign nationals, whether non-immigrants or lawful permanent residents, are strongly advised to carry documentation at all times and notify the INS of all changes in address. While each of these actions and new laws is clearly aimed at preventing future terrorist atrocities within U.S. borders, serious questions regarding the feasibility and effectiveness envisioned in instituting such systems; the prevention of cumbersome, inefficient and invasive tracking programs; and the protection of civil liberties and our traditional American legal system are being raised. Implementation of a centralized tracking system is difficult given the volume of border crossings each year coupled with the lack of coordination among key federal agencies including the INS, the Department of State, the FBI and the CIA. More importantly, such technology will be ineffective without the ability to collect critical intelligence information required to effectively apply the grounds of inadmissibility and to prevent those who intend to commit harm from entering the United States. Furthermore, the security interest in tracking entries and exits of all foreign nationals and monitoring the activities of all foreign national students must be weighed against the cost of its implementation and intrusion on civil liberties. The need for drastic changes to our current national security has been made alarmingly clear, but these changes must specifically aim to prevent the infiltration of those determined to cause harm — not those who embrace the opportunity to live and work in the United States. Moreover, American history has repeatedly shown that from war times has stemmed the adoption of measures which were later viewed as sadly unnecessary and excessive infringements on civil liberties.
Steve S. Miller is a partner in the firm Cowan and Miller, which exclusively practices immigration law with a focus on business immigration. He is an executive board member of the Washington chapter of the American Immigration Lawyers Association, and a frequent speaker on immigration topics. Laurie Bernbaum is an associate with Cowan and Miller.
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