Immigration and immigration law after 9/11: getting it straight.

• Author: Nafziger, James A.R.

1. INTRODUCTION

   Few issues, other than the economy and the triple threat of Iraq, Iran, and Afghanistan, have commanded more sustained attention in the United States during the first decade of the 21st century than immigration. It loomed large among policymakers, the broadcast media, and the public. Nativisim was in the air. Racial profiling by the federal government to combat terrorism became routine. Immigration even threatened to become a dominant theme of the 2008 presidential campaign during the primaries, but was eventually eclipsed by other issues. We were left wondering: what caused the intense hand-wringing about the threat of immigration? What, specifically, was the role of the suicidal aerial hijackings and ensuing tragedy of September 11, 2001 (9/11)? Beyond the shrill rhetoric of talk radio and cable television, what are the facts about undocumented migration to the United States? Is it significantly linked with terrorism? And what, if anything, should be done to reform the immigration law? Let us begin with the migrants themselves.

   Despite the global focus on infiltration of terrorists across national boundaries, the motivation of most migrants is well-intentioned. Around the world today, millions of people are on the move, for good reasons, living or trying to live in countries not their own. An estimated 175 million people today reside outside the country of their birth or nationality. (1) The impetus for this unprecedented movement is varied. Sometimes the movement is voluntary. People move across borders for work, education, pleasure, curiosity, or family reasons. Migration also may be forced, as refugees flee across national borders for reasons of civil unrest, war, natural catastrophes, and famine. Whatever the motivation, mass communications and marketing have heightened the perceptions of opportunities in promised lands. (2) In recent years, the internal displacement of people within their own states also has accelerated--people who cannot even escape their national territory to seek refuge under the protection of international law. The problem of internally displaced persons has only recently become a matter of international law, lex ferenda. (3)

2. STATISTICS

   The annual admission of permanent resident aliens into the United States--the so-called green-card holders--reached a peak of about 1.5 million in 2000, not including temporary non-immigrants, who number some 39 million. (4) Between 2000 and 2004, largely because of restrictions imposed after 9/11, immigration to the United States declined substantially to less than 1 million annually. (5) Historically, the expansion and contraction of the U.S. economy seems to be the best explanation of such fluctuations in migration. But anti-terrorist constraints put in place after 9/11 may also have deterred visa applicants, thereby helping explain the lower numbers in the years immediately following 9/11.

   Perhaps most significant have been declines in quarterly estimates of the undocumented population in the United States. (6) In 2007, for the first time in a decade, the yearly estimated number of undocumented entries was substantially below the number of newly-arrived permanent resident aliens. (7) Likely explanations are toughened border enforcement and, more significantly, the shaky economy. Although the number of undocumented persons may swell again, the important point is that since 9/11 the expansion in numbers is no longer continuous as it had been for many years.

3. TRENDS AND CHARACTERISTICS

   Before we return to the main theme of 9/11 and its impact on immigration matters, it will be helpful to review trends among migrants to the United States, characteristics of law enforcement, and the gist of public opinion. All three of these topics are essential as we struggle to get the facts, policy, and law concerning immigration straight.

   1. Trends Among Migrants

      Four trends among migrants are noteworthy. First, the destinations in the United States of newly-arrived immigrants have broadened substantially, thereby engaging a much broader spectrum of American society and politics as well as related anxieties. For example, Iowa and North Carolina have attracted surprisingly large numbers of foreign migrant workers eager for the kind of work all over the country that nobody else wants. (8) After all, what American wants to cut off a chicken's neck every six seconds in a meatpacking plant or clean toilets? A second trend is that the flow of illegal crossings of the U.S.-Mexico border has dropped significantly at major crossing points, quite likely as a result of both fading economic prospects and the several thousand National Guard troops patrolling the border. (9) Third, and surprisingly, the percentage of undocumented persons who had entered the United States by legal means--that is, with visas or visa waivers--has increased to about 50% of all undocumented persons. (10) In other words, half of all undocumented persons were once documented but have overstayed their visas or violated other terms of entry. The other half are mostly the "illegal border crossers" we usually think of. The fourth trend is toward more permanent and less seasonal migration of undocumented persons. (11) Building walls and strengthening border police along the border have encouraged this trend. (12) By inhibiting seasonal crossing, the walls actually may be keeping more undocumented persons in than keeping them out of the United States.

   2. Characteristics of Law Enforcement

      Since 9/11, the enforcement of our immigration law has relied heavily on seven strategies--namely: increased denial and revocation of visas for admission of foreign visitors, sanctions against employers of undocumented aliens, raids of workplaces and elsewhere, self-reporting requirements, notification by local authorities of foreign nationals, criminal prosecutions, and border controls. (13) Federal control is vested primarily in an agency called Immigration and Customs Enforcement--chillingly known as ICE--which was created after 9/11 within the new Department of Homeland Security. (14) Other federal agencies are also significant, especially the State Department and the Department of Labor. (15)

      To focus on the first strategy of law enforcement, the State Department's zealous denial and revocation of visas after 9/11 was understandable, given the origins of 9/11 in the government's failure to scrutinize visa applications carefully or otherwise bar entry to terrorism suspects. Less understandable, however, have been the puzzling, seemingly unwarranted denials and revocations of visas, often without any explanation, that have exasperated professional associations, institutions of higher education, and public forums, not to mention friends and relatives of applicants for visas. (16) Gone, too, is the hope, if not expectation, that even the plenary power doctrine, by which the political branches of government, without judicial review, exercise nearly unlimited authority over immigration, would disappear. Judicial review of the government's actions is less likely today than ever before. Gradually, the situation has improved...