March 2002

Immigration Law and Civil Rights: Where Do Aliens Stand After 9/11? 

by Steven S. Miller and Laurie Bernbaum

The unimaginable events of September 11 have shaken the direction of immigration law, and potentially will have long-term impacts on the delicate balance between civil liberties and protecting public security in the United States. The attacks, combined with the current economic slump, have derailed positive steps toward legal reform of U.S. immigration policy. There have been other civil liberties consequences as well, challenging such basic legal assumptions as attorney-client privilege and the right to public civilian trials for individual aliens accused of being terrorists.

As U.S. Attorney General John Ashcroft declared after first affirming that the U.S. is a welcoming nation of immigrants: "But as September 11 vividly illustrates, aliens also come to our country with the intent to do great evil.…We will not allow our welcome to be abused by those who are America's enemies."2 

So we begin (not for the first time) a strenuous effort to limit entry of suspect aliens and increase the monitoring of foreign nationals, particularly foreign students from Islamic nations. The costs of these efforts in legal, social and economic terms may be high. The balance between the relatively open borders found in an open society, and national security concerns, is complex and highly charged, involving civil liberties, privacy concerns, our immigration history and politics, as well as economic risks generated by our security actions.

Already, Congress has passed and the president has signed the USA PATRIOT Act. Modifications to the procedures for monitoring conversations between detained suspected terrorists and their attorneys, and adoption of secret military tribunals for suspected terrorists have been announced. These changes and others that are being considered may have impacts far beyond the lives of any specific foreign nationals affected.

America's focus has dramatically shifted from an expanding and global view of immigration and borders to a restrictive and vigilant examination of all foreign nationals admitted into and present in the U.S. A few short months ago, a booming economy and the growing importance of newly immigrated voting blocks had thrust immigration policy towards liberalization, including:

• discussion of a comprehensive amnesty provision for millions of foreign nationals illegally present in the U.S.;
• implementation of procedures to allow speedy adjudication of employment-based visa applications;
• a general campaign for a fluid flow of people across land borders.

Businesses were in desperate need of workers, and organized labor viewed these workers as beneficial to their union-building efforts. In addition, employers seeking highly skilled workers were allowed to buy expedited processing time with the submission of an additional "premium processing" fee. Implementation of the NAFTA treaty also facilitated the cross-border employment of professionals. Finally, border states were aggressively and successfully advocating against cumbersome restrictions on the swift movement of people and commerce across the border. After September 11, the drive toward a liberalized immigration agenda slammed to a halt. Given the current situation, delays in the debate to legalize millions of illegal immigrants are inevitable; likewise, severe restrictions on the movement of people across the borders. The effort to deter terrorist activity and salvage national security has become our top priority. A Short Introduction to Immigration Policy in the United States Throughout U.S. history, immigration policy has been shaped by changing political, economic and social views. The traditional interests of immigration — sustaining economic prosperity, providing protection to refugees and asylees, and ensuring family unity — have been opposed by "nativist" movements that have sought to bar newcomers. As a result of this tension, immigration has vacillated from periods of restriction to periods of greater accessibility. During the first 100 years of our country's history, America experienced relatively unimpeded immigration, with the U.S. Supreme Court striking down state efforts to stop the influx of immigrants.3 The first federal controls on immigration barred convicts and prostitutes, followed by exclusion of lunatics and anarchists, persons with contagious diseases, and those likely to become public charges. By the late 19th century, however, race and ethnicity began to play a major role in legislation aimed at restricting immigration. A notable example is the Chinese Exclusion Act of 1882, which specifically prevented Chinese people from becoming U.S. citizens and prohibited Chinese workers from immigrating. By the 1920s, the flood of new immigration, spurred by hard times in most of the world after World War I, gave rise to restrictive immigration policy. Where previously no numerical limitations on immigration existed, new laws were passed setting numerical limits on immigration based on "national origin," sharply curtailing immigrants from southern and eastern Europe. The 1952 Immigration and Nationality Act (INA) presented additional restrictive measures, including restrictions against those who supported communism, anarchy or any ideology believed to be subversive, as well as other provisions retaining the national-origin quota system for all countries except those in the Western Hemisphere. In October 1965, amendments to the INA brought about far-reaching changes aimed at ameliorating the racially based immigration system established in the 1920s. In particular, it placed a high priority on family reunification, and established a seven-category preference system for family members, skills-based individuals and refugees. Since 1980, several pieces of important legislation have shaped the current immigration system. Dealing with illegal immigrants already in the U.S was at the center of the Immigration Reform & Control Act of 1986, which attempted to legalize long-term illegal aliens who had substantial ties to the U.S., and, at the same time, cut down on further illegal immigration by penalizing businesses for knowingly hiring illegal workers. The need for more business-related immigration visas was one of the main purposes of the Immigration Act of 1990. This law made the most substantial changes to the immigration system since 1952, increasing business-related immigration by 40 percent to 140,000 employment-based visas, and significantly increasing family immigration. More recently, the Anti-terrorism and Effective Death Penalty Act (AEDPA) and Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA), both adopted in 1996 (and discussed below), instituted severe penalties for being unlawfully present in the U.S., widely expanded the definition of aggravated felony to include a number of minor crimes, reclassified past infractions retroactively to become deportable offenses, and severely limited eligibility for waivers or judicial review of deportation orders. Today, America's legal immigration system does not embrace an open-door policy. It is a highly regulated system, allowing a foreign national to lawfully immigrate only through employment, a close family connection, or for human-rights purposes. Non-immigrants, those individuals who are coming to the U.S. temporarily as visitors or for temporary work or study, are generally subject to the same exclusions as immigrants, and also need to obtain a visa to the U.S. unless they are from Canada or 29 low-risk countries eligible for waivers of visas for short visits. In practice, consular officers examining visa applications presented at U.S. consulates worldwide have wide discretion to grant or deny a visa based on a range of inadmissibility grounds. The burden is on the visa applicant to convince the consular official that he is coming for an authorized purpose and will not overstay or violate the terms of the visit. A visa can be denied, for example, if the foreign national fails to convince the consular officer that the individual has sufficient ties with his home country, that he has sufficient funds for support during the visit, or that he will depart within the time given for the visa. A consular official is supposed to indicate to the foreign national the grounds for inadmissibility. There is no appeal from the consular officer's decision. All of the September 11 terrorists passed these tests and were granted a student or visitor visa. Countries that are considered friendly to the U.S., such as Saudi Arabia, and which have good records of their nationals abiding by their visa limits, are more freely given these discretionary visas. The State Department has now announced that males from the age of 16 to 44 from certain Muslim countries4  will undergo an additional 20-day security check as the applications are checked against FBI databases which are not yet integrated into the database available to consular officials.After an individual obtains a visa from a consulate, or enters the U.S. from a country where the U.S. waives the necessity of obtaining a visa stamp (most European countries and Japan), a second screening occurs at the U.S. port of entry, where the visa applicant must present himself to an Immigration and Naturalization Service (INS) officer for inspection. The INS inspector may at that time refuse entry based on any of the same grounds of inadmissibility.Previous Anti-Terrorist Immigration LegislationIn response to the attack on the World Trade Center in 1993, IIRAIRA (referenced above) was already aimed at deterring terrorism and protecting national security. It created bars to admission based on terrorist activity.5 A person who has engaged in terrorist activity, or an individual that "a consular officer ... has reasonable grounds to believe ... is likely to engage after entry in any terrorist activity" is not admissible to the U.S.6 "Terrorist activity" was broadly defined to include planning, fundraising, soliciting for membership, and providing material support for an organization's terrorist activity.Once in the U.S., IIRAIRA provides expansive deportability grounds applicable to any non-U.S. citizen. These grounds of deportability are broad and give the INS the power to deport anyone who it believes has engaged in terrorist activities.Furthermore, the law provides for "expedited removal" to deny admission and immediately remove any person whom the INS inspector believes is presenting fraudulent documents. The expedited removal provisions give INS inspectors broad and unreviewable authority to deny entry to individuals and prevent them from obtaining a U.S. visa for at least five years.USA PATRIOT Act of 2001The first new law enacted on October 26, 2001, in response to the September 11 terrorist attacks was the USA PATRIOT Act.7 The law contains provisions expanding the definition of terrorism, provides for mandatory detention of aliens suspected to have engaged in terrorist activity, and limits judicial review. The existing laws as outlined above have now been aggressively bolstered in an effort to prevent a recurrence of the recent tragic events. The act contains new provisions increasing enforcement capabilities at the northern border, implementing and improving monitoring technology capabilities, expanding the definition of terrorism, providing for mandatory detention of foreign nationals suspected of having engaged in terrorist activity, and limiting judicial review.The USA Patriot Act expands the definition of terrorism and gives new grounds for barring admission to the U.S. at the border, and new grounds for deportation of those foreign nationals already in the country.The statute makes inadmissible: "representatives of foreign terrorist organizations or any group that publicly "endorses acts of terrorist activity" and any alien determined to have "associated" with a terrorist organization, who "intends while in the United States to engage ... in activities that could endanger the welfare, safety or security of the United States." It also bars the spouses and children of aliens who are inadmissible on any of these terrorism-related grounds. Aliens in the U.S. are now deportable for any fundraising, solicitation for membership, or material support of groups that are designated as terrorist organizations by the secretary of state, and for solicitation of funds or other material support for groups not officially designated as terrorist organizations unless the person can prove that he did not know and should not reasonably have known that the solicitation would further the organization's terrorist activity.There are certain limits on retroactivity for cases where a person previously provided materials support to the humanitarian projects of a terrorist organization before it was designated as such by the secretary of state.The USA PATRIOT Act provides for mandatory detention of an alien certified by the attorney general as a terrorist if there are reasonable grounds to believe that the individual is a terrorist or engaged in terrorist activity. Certified persons must remain in custody irrespective of any eligibility for relief from removal. New provisions also allow the INS to detain a suspected terrorist alien for seven days before bringing immigration or criminal charges. Aliens not charged within seven days must be released, with habeas review of the detention and the basis for certification.The USA PATRIOT Act also requires the integrated entry and exit data system (Section 110 of the Immigration and Naturalization Act) to be fully implemented at all ports of entry, with an integrated entry and exit data-system task force appointed immediately. The development of the system will focus on the use of biometrics technology and tamper-resistant documents. It must also interface with law-enforcement databases to identify and detain individuals who pose a threat to national security, and requires the full implementation of the student-visa database established by section 641(a) of IIRAIRA, which now includes all education institutions that are approved to receive foreign students.Protecting the United States: Finding the Right BalanceThe events of September 11 make the need for an improved and effective system of immigration screening consistent with our national security systems alarmingly clear. The difficulty in implementing such systems lies in the task of balancing the traditional interests of immigration — namely free movement of people for family unity, personal, business and economic reasons — and the need to minimize access of people who mean to do harm and jeopardize our national security. This will not be an easy task.

Steven 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. Laurie Bernbaum is an associate with Cowan and Miller.

NOTES

1. The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001, Pub. L. 107-56, 115 Stat. 272.

2. Seattle Times, November 1, 2001, p.1.

3. The Passenger Cases (Smith v. Turner), 48 U.S. (7 How.) 283, 12 L. Ed. 702 (1849); Henderson v. Mayor of New York, 92 U.S. 259, 23 L. Ed. 543 (1875); Chy Lung v. Freeman, 92 U.S. 275, 23 L. Ed. 550 (1875).

4. Afghanistan, Algeria, Bahrain, Djibouti, Egypt, Eritrea, Indonesia, Iran, Iraq, Jordan, Kuwait, Lebanon, Libya, Malaysia, Morocco, Oman, Pakistan, Qatar, Saudi Arabia, Somalia, Sudan, Syria, Tunisia, Turkey, the United Arab Emirates and Yemen.

5. Section 212(a)(3)(B) of INA.

6. Section 212(a)(3)(B)(i)(I) & (II) of INA.

7. The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001, Pub. L. 107-56.