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 also 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 “Political Correctness , ” WASH. POST: POLITICS (Jan. 4, 2016), 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 INTELLIGENCER (Dec. 18, 2015, 8:00 AM), http://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 Edwin Sutherland . . . highlighted immigration and crime as an area of popular misconception and policy distortion. Today, not much has changed as both public opinion about immigration and immigration 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 rooted in American public opinion 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 engaged 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. The United States government has vigilantly exercised its duty to protect the nation--and so far it has been successful in preventing subsequent terrorist attacks on American soil. . . . 246 LOUISIANA LAW REVIEW [Vol. 77 to better defend the nation as a direct response to the attacks, but the government also began using the immigration laws already on the books in a different way—as a tool of national security. 10 Immigration law is unique in its national security application. The uniqueness of its application stems from its dual usage as the apparatus for entry into the United States, as well as the mechanism by which we keep out those who pose a threat. Viewing “national security” in its broadest meaning, there is a clear security interest in maintaining the integrity of the borders. However, there is also an interest—an interest that can compete with the national security interest—in continuing our role as a beacon of light and of hope to the world community, our role as a nation where the “tired . . . poor, [and] huddled masses” 11 have refuge. This latter interest is critical because America is a place where public diplomacy is advanced through the citizenry’s diversity, which defines us as a people. Not only does a rational immigration policy bring the best and brightest to the United States—Albert Einstein as just one famous example 12 —but it also brings a diversity of culture that has proven to be our greatest diplomatic instrument. This Article explores the relationship between national security and immigration law—and, specifically, how immigration as the proverbial “bogeyman” 13 has steered immigration law. Part I discusses the definition of national security, as defining it is a prerequisite to discussing its implications on immigration law. Part II provides a historical backdrop of national security and shows how events throughout history have sparked Immigration policy and its enforcement are inextricably linked to...