Is Immigration Law National Security Law?

• Citation: Vol. 66 No. 3
• Publication year: 2017

IS IMMIGRATION LAW NATIONAL SECURITY LAW?

Shoba Sivaprasad Wadhid^*

Introduction.....................................................................................670

I. Executive Branch.................................................................672

A. Refugees............................................................................ 672
B. Central American Families .............................................. 674
C. Restrictions Based on Race, Religion, Nationality, and Citizenship ................................................................. 676

1. Legality....................................................................... 678
2. Feasibility................................................................... 680
3. Moral Considerations: American Identity and Reputation .................................................................. 681

II. Legislative Branch...............................................................682

A. Comprehensive Immigration Reform ................................ 682
B. Legislative Proposals to Restrict Immigration ................. 683

III. States......................................................................................688

A. Syrian Refugees ................................................................ 688

IV. 9/11 Flashback.......................................................................690

A. 9/11 Detentions................................................................. 691
B. Registration Program ....................................................... 692
C. Notices to Appear ............................................................. 695

Conclusion.........................................................................................696

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Introduction

The debate around how to keep America safe while welcoming newcomers is prominent. In the last year, cities and countries around the world, including Baghdad,¹ Dhaka,² Istanbul,³ Paris,⁴ Beirut,⁵ Mali,⁶ and inside the United States,⁷ have been vulnerable to terrorist attacks and human tragedy. Meanwhile, the world faces the largest refugee crises since the Second World War.⁸

This Article is based on remarks delivered at the Emory Law Journal's annual Thrower Symposium on February 11, 2016.⁹ The Article explores how national security concerns have shaped recent immigration policy in the Executive Branch, Congress, and the states and considers the moral, legal, and practical implications of these proposals. Finally, this Article examines the parallels between these proposals and immigration policies enacted after September 11, 2001.

In the Executive Branch, President Barack Obama committed to admitting 10,000 refugees from Syria.¹⁰ In contrast, the Administration made a choice to detain Central American women and children in newly constructed correctional

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facilities known as "family detention center[s]."¹¹ The Department of Homeland Security's (DHS) published enforcement priorities for removal lists "threats to national security, border security, and public safety" as the highest priority.¹² other enforcement priorities include recent border crossers and immigration violators.¹³ DHS has relied on this framework to participate in unannounced enforcement actions (raids) to arrest and deport Central American moms and children.¹⁴

on the presidential campaign trail, President Donald Trump moved to halt immigration for Muslims and normalized the platforms of other candidates to label Syrian refugees as "rabid dogs" and limit refugee admissions for Muslims.¹⁵

On Capitol Hill, Congress has debated, amended, shredded but not passed a comprehensive immigration reform bill in twenty years. Though Congress cannot reach an agreement on immigration reform, it has proposed or passed various proposals to restrict refugee admissions and visa-free privileges based on nationality¹⁶ with full support and implementation by DHS.¹⁷

In the states, dozens of leaders vowed to reject Syrian refugees though the legal ability to do so is questionable.¹⁸ The majority of these states are also

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plaintiffs in a lawsuit challenging the legal authority for the President to implement deferred action, a longstanding form of prosecutorial discretion in immigration law.¹⁹

These immigration proposals emerged on the heels of devastating events around the globe. They also produce a flashback to many policies enacted by the Executive Branch after September 11, 2001. The prominence of immigration in the national security debate has been controversial and has legitimized a selective enforcement policy drawn along lines of race, religion, nationality, and citizenship.²⁰ The vestiges of 9/11 also reveal how immigration laws borne out of national security concerns can result in everlasting damage for affected individuals and families.

I. Executive Branch

A. Refugees

In the Executive Branch, President Obama committed to admitting 10,000 refugees from Syria (among the 4.5 million estimated refugees).²¹ The Administration engaged in public education about the structure of the United States refugee resettlement program, which involved an elaborate interviewing process and security check.²² Meeting the legal definition for refugee is no easy task and requires the individual to show past persecution or "a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion."²³ Individuals who have committed certain crimes do not qualify.²⁴ According to the Department of State, a refugee

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undergoes eighteen to twenty-four months of processing before arriving in the United States.²⁵

Most refugees are initially referred to the United States government by the United Nations High Commissioner for Refugees (UNHCR).²⁶ Later in the process, refugees interface with the United States Citizenship Immigration Services, a unit within the DHS, whose officers are employed to conduct in-person interviews to determine if the individual qualifies as a refugee.²⁷ To qualify as a refugee through our overseas refugee program, a noncitizen must show that he or she has suffered or will suffer "persecution."²⁸ Persecution is not defined in the immigration statute or regulations but rather is propelled by a body of case law and interpretations by the Department of Justice (DOJ) and DHS.²⁹ In addition to meeting the affirmative elements of the refugee definition, applicants must also show they have not engaged in persecutory activities or engaged in activity that would threaten the national security of the United States among other requirements.³⁰

The lengthy security process coupled with the high legal standard makes it unlikely that a terrorist would use the overseas refugee program as a tool to enter and cause danger to the United States. In his written testimony to the Senate Judiciary Committee, DHS Secretary Jeh Johnson indicated that 5000 Syrians have been resettled in the United States as of June 30, 2016.³¹ Prospects remained for the United States to reach its goal. According to one Department of State official, and as reported by the Washington Post, "[t]he pace of refugee resettlement has quickened in part because processing facilities in Istanbul and in Amman, Jordan, have been upgraded and more DHS teams have been

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deployed to interview refugees."³² By the end of the fiscal year, the Administration admitted a total of 12,587 Syrian refugees and plans to admit a significantly higher number in the next fiscal year.³³ Notably, leaders around the country, including our very own keynote speaker at this symposium, by Harold Koh urged the President to commit to higher refugee admissions from Syria.³⁴

Individuals living in the United States with a fear of return must also qualify as a refugee as defined in the immigration code but can apply for asylum within the United States if eligible.³⁵ Noncitizens are ineligible to apply for asylum in certain circumstances.³⁶ Likewise, they are ineligible for protection if they have been convicted of particularly serious crimes, committed serious criminal acts outside of the United States, engaged in persecutory or terrorist-related activity, and for other reasons.³⁷ Spouses or minor children of a principal asylum or refugee applicant may qualify for derivative status.³⁸ The concept of derivative status has been the subject of great confusion in the recent debate.³⁹

B. Central American Families

In contrast to the Administration's welcome message to Syrian refugees is a narrative that seeks to deter unlawful migration by detaining mothers and children from the Northern Triangle countries: El Salvador, Honduras and Guatemala.⁴⁰ Beginning in the fall of 2014, the Administration began detaining

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in large numbers those arriving at the border or apprehended after arrival in "family detention center[s]."⁴¹ DHS initially justified these detentions on national security grounds—namely, to send a message to future or forthcoming travelers to stay in their home countries and not seek admission into the United States.⁴² Thereafter, the American Civil Liberties Union (ACLU), along with other co-counsel, filed a class-action lawsuit on behalf of detained mothers and children challenging this policy.⁴³ During the briefing and oral arguments, DHS relied on a controversial decision made by the Attorney General in the wake of 9/11 to argue that it was required to consider the deterrence of mass migrants when making custody decisions under the immigration statute.⁴⁴ On February 20, 2015, a federal judge certified the class of mothers and children and issued a preliminary injunction blocking DHS's policy.⁴⁵ Said the court, "[i]ncantation of the magic words 'national security' without further substantiation is simply not enough to justify significant deprivations of liberty."⁴⁶

In January 2016, DHS began arresting mothers and children in an effort to detain and deport them.⁴⁷ The government...