The Ever-Changing Bogeyman: How Fear Has Driven Immigration Law and Policy

• Author: Arthur L. Rizer, III
• Position: Arthur Rizer is the director of criminal justice police at the R Street Institute, a Washington D.C. based think tank, a former Visiting Professor of Law at Georgetown University Law Center, and an Associate Professor of Law at West Virginia University School of Law. Rizer is a former criminal prosecutor with the U.S. Department of Justice, and...
• Pages: 243-286

The Ever-Changing Bogeyman: How Fear Has

Driven Immigration Law and Policy

Arthur L. Rizer, III*

TABLE OF CONTENTS

Introduction .................................................................................. 243

I. Defining National Security ........................................................... 247

II. The Fear of Violence and Its Not So Subtle Effect

on Immigration Laws ................................................................... 250

III. National Security, Fear, and the Transformation of

Immigration Law .......................................................................... 258

A. Removal, Holds, and Denial of Benefits ............................... 260

1. The New Enemy: Defining a National

Security Threat ................................................................ 261

2. Denial of Relief ............................................................... 265

3. Denial of Adjudication .................................................... 266

4. Summary Removal .......................................................... 267

5. Alien Terrorist Removal Court ....................................... 268

B. Denaturalization ..................................................................... 270

C. Material Support .................................................................... 271

D. Classified Information ........................................................... 273

E. Detention ............................................................................... 274

F. Holes in the Border ................................................................ 277

IV. Liberty Concerns When Using Immigration Law

as a Tool of National Security ...................................................... 281

Conclusion .................................................................................... 286

INTRODUCTION

The campaign for the Republican nomination for the American

presidency in 2015 and 2016 has been marked by hyperbole and fear-

mongering.1 No candidate has made such a pronounced impact in the

Copyright 2016, by ARTHUR L. RIZER, III.

* Arthur Rizer is the director of criminal justice police at the R Street

Institute, a Washington D.C. based think tank, a former Visiting Professor of Law

244 LOUISIANA LAW REVIEW [Vol. 77

category of shocking or politically incorrect verbiage as Donald Trump.2

One of the predominant talking points across Republican candidates’

campaigns has been illegal immigration and border security.3 Trump’s

framing of the issue put it into terms that have long been used to justify a

restricted immigration policy:4

Either we have a border or we don’t have a country. You can’t

have a country without borders. People are coming in and some of

those people—I read it even yesterday, there was a huge article

at Georgetown University Law Center, and an Associate Professor of Law at West

Virginia University School of Law. Rizer is a former criminal prosecutor with the

U.S. Department of Justice, and he al so worked in the Civil Division on national

security and immigration cases. The author would like to thank Melanie Stimeling

for her review and comments and students J. Berkeley Bentley, Esha Sharma, and

Ben Wilson for their help in ensuring the quality and accuracy of this Article. The

author would also like to thank Garrett Filetti and Mackenzie Schott and their staff

of editors: Megan Rials, Katilyn Hollowell, Dustin Cooper, Leah Cook, and Julien

Petit for their dedication to ensuring this Article reached the quality it has.

1. See, e.g., Rex W. Huppke, GOP Candidates Want You to be Terrified, CHI.

TRIB. (May 20, 2015, 9:51 AM), http://www.chicagotribune.com/news/opinion

/huppke/ct-huppke-gop-fear-mongering-20150520-story.html [https://perma.cc/VF

25-LND9] (analyzing quotes from Republican presidential contenders, concluding

that “[t]here’s something Republican presidential contenders want you to know:

You should be TERRIFIED”).

2. See, e.g., Karen Tumulty & Jenna Johnson, Why Trump May be Winning

the War on “Pol itical Correctness ,” WASH. POST: PO LITICS (Jan. 4, 2 016),

https://www.washingtonpost.com/politics/why-trump-may-be-winning-the-war-on

-political-correctness/2016/01/04/098cf832 -afda-11e5-b711-1998289ffcea_story

.html [https://perma.cc/UV97-EGLG].

3. See, e.g., Ed Kilgore, When Did the GOP Get So Extreme on Immigration?,

N.Y. MAG.: DAILY INTELLIGENC ER (Dec . 18, 2015, 8:00 AM), h ttp://nymag

.com/daily/intelligencer/2015/12/when-did-the-gop-get-so-crazy-on-immigration

.html [https://perma.cc/U2DV-BPL4].

4. See Graham C. Ousey & Charis E. Kubrin, Exploring the Connection

Between Immigration and Violent Crime Rates in U.S. Cities, 1980-2000, 56

SOC. PROBS. 447, 447 (2009).

Nearly 80 years ago, criminologist Ed win Sutherland . . . highlighted

immigration and cri me as an area of popular misconception a nd policy

distortion. Today, not much has changed as both public opinion about

immigration and i mmigration policy appear to be driven more by

stereotype than by empirical fact . . . . The misperception that the foreign

born, especially illegal immigrants, are responsible for higher crime rates

is deeply roo ted in American public o pinion and is sustained by media

anecdote and popular myth.

Id. (internal citations and quotation marks omitted).

2016] THE EVER-CHANGING BOGEYMAN 245

about the tremendous crime that’s taking place. It’s like a crime

wave. One of the most dangerous places on earth.5

Although many commentators dismissed Trump as “a flawed candidate

who may be too inconsistent and nasty to appeal to most Americans,”6 his

consistently high polling “illustrate[s] deep anxiety and anger in the

country.”7 Statements such as this one evoke a sense of patriotism and stir

up “fears about the boom of immigrants without legal status,”8 while

echoing a fear of immigration that, whether intentional or not, drives

America’s immigration policy. Although Trump’s comments are harsh and

controversial, the base sentiment behind them—fear—is perfectly

understandable. Fear is instinctual; fear keeps us alive; fear motivates us

to question things around us and instigate change.

The United States’s response to the events of September 11, 2001 was

rooted in that survivalist instinct driven by fear. Because of the particular

impetus for the U.S. response, shortly after September 11, 2001, the field

of immigration law quickly became a focal point in the Global War on

Terror.9 Not only did the federal government enact new immigration laws

5. Pam Key, Trump on Mexico Comments: ‘I Can’t Apologize for the Truth,’

BREITBART (July 5, 2015), http://www.breitbart.com/video/2015/07/05/trump-on-

mexico-comments-i-cant-apologize-for-the-truth/ [https://perma.cc/CKH7-U7KT].

6. Kenneth T. Walsh, Anxiety and Anger in America, U.S. NEWS: THE REP.

(Sept. 11, 2015, 6:00 AM), http://www.usnews.com/news/the-report/articles/2015

/09/11/trumps-rise-illustrates-anger-and-anxiety-in-america [https://perma.cc/EWP

2-ZK29].

7. Id.; see also Tumulty & Johnson, supra note 2 (“The Republican front-

runner is saying what a lot of Americans are thinking but are afraid to say because

they don’t think that it’s politically correct . . . .”).

8. Mortimer B. Zuckerman, A Losing Trump Card, U.S. NEWS: THE REP.

(Sept. 18, 2015, 4:45 PM), http://www.usnews.com/news/the-report/articles/2015

/09/18/donald-trumps-immigration-polices-are-a-loser-for-the-gop [https://perma

.cc/GR66-C9G2].

9. See Farrah G. de Leon, Note, Girding the Nation’s Armor: The

Appropriate Use of Immigration Law to Combat Terrorism, 3 REGENT J. INT’L L.

115, 115–16 (2005).

Three years after the tragic September 11, 2001, attacks, it is tempting to

believe that America has returned to a time of normalcy. Yet, few would

dispute that the nation is e ngaged in an ongoing War on Terror.

September 11 has forever changed America, triggering a war that is

affecting the everyday lives of Americans. This nation now realizes that,

despite its strength, it is vulnerable. Vigilance is necessary to prevent

future terrorist attacks. T he United States government has vigilantly

exercised its duty to protect the nation--and so far it has been successful

in preventing subsequent terro rist attacks on American soil. . . .