Changes In Immigration Law And Practice After September 11: A Practitioners Perspective
| Author | Asli U Bali |
| Pages | 161-177 |
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Changes in Immigration Law and Practice After September 11: A Practitioner's Perspective 1
Asli U Bali 2
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Although America is properly described as a nation of immigrants, periods of national crisis have revealed the vulnerability of immigrants' rights to hysteria and repression. When national security is threatened, this country has a blemished history of targeting immigrant communities. This is exemplified by the anti-Catholic animus of the eighteenth and nineteenth centuries, the Know-Nothings movement, the Palmer Raids, and the period of Japanese internment sadly memorialized in constitutional law courses with the study of Korematsu3. In the aftermath of September 11, President George W. Bush declared that our nation is embarking on a new war, a war against terror. Within our borders, this new war has quickly taken the form of a war on immigrants, specifically immigrants whose nationality, ethnicity, or religion has made them particularly vulnerable as scapegoats.
This article will provide a general summary of various programs that, when understood together, provide an overview of the drastic changes in the legal status and rights of immigrants in this country. The first part of the article sketches the changes in immigration law and policy since September 11. This initial discussion offers a context for the specific laws and policies considered in the second part of the article. These new laws and policies amount to a security-state apparatus within America's borders to govern the treatment of immigrants. This overview of the security-state infrastructure established to police our borders, and the immigrant communities within them, contributes to the article's conclusion that the changes in the American legal landscape since September 11 may threaten the core of this country's aspirations in a way that terrorism cannot.
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Since September 11, our nation's immigration system has been misused as a tool for criminal investigation and intelligence gathering. The driving force behind the principal changes in the application and enforcement of immigration laws since September 11 has almost nothing to do with immigration-related concerns. Our immigration system is a set of administrative and legal procedures intended to control the crossing of our borders by individuals for various purposes ranging from education or tourism to investment, employment, or the establishment of permanent residency in the United States. The system is comprised of a set of civil procedures to regulate entry, residency and departure of non-citizens from our country. In the aftermath of September 11, however, our immigration system was reappropriated to serve a very different set of purposes.
Why would our civil immigration laws seem an appropriate instrument for government anti-terrorism initiatives? The obvious answer furnished by many observers has been that the hijackers that attacked the World Trade Center and the Pentagon on September 11 were all non-citizens. Following this logic, had our immigration system been more vigilant, these individuals would never have been able to cross our borders. Upon closer inspection, however, the flaws in this reasoning become apparent. First, most of the hijackers entered the country legally and were in compliance with our immigration laws. Second, the only way to ensure that non-citizens who enter this country for legitimate reasons (and citizens) do not engage in terrorist activities is through conventional law enforcement and intelligence gathering techniques, which have proved effective in exposing such activities, both before and after September 11. Immigration procedures are effective in regulating entry and exit from our country but are not designed for the investigation of criminal activities or the gathering of intelligence. Perhaps more importantly, the reduction of civil liberties through the misuse of our immigration system has been far greater than any putative security benefit.
An important lesson of the post-September 11 period is that draconian methods have produced little valuable information. Few of the immigration-related arrests, indefinite secret detentions, closed hearings, and expedited deportations targeting Arab and Muslim immigrant communities, have resulted in the prosecution of suspected terrorists. Why, then, should the government persist in amending our immigration laws Page 163 and procedures for use as anti-terrorism mechanisms? One explanation may lie in the weak procedural safeguards afforded by the immigration system. Immigration violations are violations of United States civil laws. Such violations may result in the detention of the alleged violator, one of the few instances in which a violation of civil law results in detention.
Because immigration detentions occur in the civil and not criminal context, the criminal procedural protections afforded by the Fourth and Fifth Amendments are absent in this context. Accordingly, the government developed a potent weapon when it decided to use immigration laws to detain hundreds of Arab and Muslim men in the immediate aftermath of September 11. The immigration system provided a significant tool in only one respect: detention with almost no constitutional protections for those detained. The traditional presumptions of our legal system were reversed and a systematic policy of guilty un til proven innocent was adopted with regards to a group of men who had nothing more in common (with each other or with the perpetrators of the September 11 attacks) than national origin or religious affiliation.
In sum, the most pronounced "benefit" of using the immigration system as a mechanism to detain individuals during post-September 11 investigations has been to circumvent the protections of due process guaranteed under the Constitution. To the same end, the government promulgated a series of new immigration regulations, amounting to vagrancy laws for immigrants. Regulatory and legal changes in the immigration context occurred at such a dizzying pace, even immigration lawyers found them difficult to navigate. With the proliferation oftechnical rules which, if violated, would render an individual potentially deportable, the detention of ever greater swaths of the immigrant communities present in the United States has become feasible. It remains to be seen if the government intends to use its new arsenal of immigration regulations to effect further mass immigration detentions. It is beyond question that the executive now has the authority to engage in mass detentions of immigrants through such pretexts as failure to comply with new registration procedures.
An additional effect of the post-September 11 use of the immigration system to accomplish the goals of anti-terrorism investigation and enforcement has been the reemergence of racial profiling as routine practice. Immediately preceding September 11, immigration advocates and civil libertarians had successfully joined forces with a diverse range of interest groups and community organizations to promote effective Page 164 federal anti-racial-profiling legislation that was designed to put an end to the use of race, ethnicity, and nationality as bases for criminal investigation and enforcement efforts. By the end of the 1990s, racial profiling had been thoroughly discredited as a tool for criminal enforcement and become a source of tremendous tension between minority communities and police departments across the country. The federal response to September 11 set back over a decade of achievements by activists, advocates, and organizers opposed to racial profiling. Within weeks, the government was systematically profding men of Middle Eastern or South Asian origin, while indirectly encouraging private discrimination against communities perceived to be Middle Eastern or South Asian. Scores of immigration programs explicitly discriminating against individuals and communities based on national origin or religious affiliation created a permissive climate for private acts of discrimination and racism. In addition, local and state law enforcement officials were encouraged to engage in profiling across a wide variety of contexts-many of which are wholly unrelated to post-September 11 enforcement initiatives.
The shifting immigration landscape since September 11 has served as a testing ground for the erosion of civil liberties and procedural safeguards afforded to individuals under our constitutional system. Continuing to acquiesce in restrictions affecting the rights of immigrants, apparently justified by the near-permanent state of war and national security crisis on which we are presently embarked, may ultimately jeopardize the fundamental civil liberties of citizens and non-citizens alike. The progression of incremental incursions on freedoms that has occurred since September 11 has been accompanied by an increased public tolerance for the curtailment of liberties in the name of security more generally. Such toleration of the violation of rights and liberties in the immigration context, however, may ultimately endanger the commitment to liberty that has heretofore been the hallmark of the constitutional system.
The legislative and regulatory changes undertaken in response to September 11 are extremely far-reaching. The reorganization of some of the principal functions of the executive branch in the new Department of Homeland Security, the changes enacted by the USA PATRIOT Act Page 165 (USA...
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