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As the World Turns: Immigration Law Before and After September 11*
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By Stanley Mailman and Stephen Yale-Loehr** As much as Americans want to hang onto their traditional values, the September 11 terrorist attacks have us reconsidering our immigration policies. Events in the months just before the tragedy seemed to reflect a climate more and more favorable to those among us who lack U.S. citizenship. For example, Congress was then considering legislation that would have eased restrictions it had imposed in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009, restrictions that include expedited removal and severe limits on judicial review. That noncitizens who seek to enter this country or remain here may be in for an even tougher time seems clear from the October 26 enactment of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act or Act), Pub. L. No. 107-56, 115 Stat. 272. When this Act was initially considered, its electronic intercept features were the provisions most actively debated. Now that the USA PATRIOT Act is law, and the FBI has detained hundreds of noncitizens, many effectively deprived of access to counsel, the impact of the Act’s immigration provisions is more apparent. Earlier this year the Supreme Court handed down two decisions favoring immigrants. In the first case, INS v. St. Cyr, __ U.S. __ , 2001 U.S. LEXIS 4670 (2001), the Court disagreed with how the Immigration and Naturalization Service (INS) was applying the deportation provisions of the Immigration and Nationality Act (INA), as amended by IIRIRA. The INS argued that IIRIRA had extinguished its discretion under INA § 212(c), 8 U.S.C. § 1182(c), to waive the deportation of long-time permanent residents even for earlier convictions. The Court held otherwise, at least in cases where the alien had pleaded to the indictment before IIRIRA was enacted. And, absent a clear and unambiguous statement of congressional intent, it found IIRIRA’s limitation on judicial review ineffective to cut off habeas corpus review. At issue in the second case, Zadvydas v. Davis, __ U.S. __, 2001 U.S. LEXIS 4912, Nos. 99-7791 and 00-38 (2001), was whether INA § 241(a)(6), 8 U.S.C. § 1231(a)(6), authorized indefinite detention of a deportable person beyond the 90-day removal period specified in the statute. The Supreme Court held that a time limit was implicit in the statute and found that it was reasonable to limit the INS to six months, ordinarily, in which to locate a country willing to receive that person. A more flexible immigration policy was also reflected by legislation. Congress acted several times in recent years to increase the annual number of aliens permitted H-1B classification, the temporary status for workers in a specialty (professional) occupation, like the sciences, engineering, and computer programming. See, e.g., Stanley Mailman and Stephen Yale-Loehr, New Law: Higher H-1B Visa Numbers, Fewer INS Delays, N.Y. Law J., Oct. 23, 2000, at 3, reprinted in 5 Bender’s Immigr. Bull. 868 (Oct. 15, 2000). And last year, Congress enacted technical legislation designed to overcome administrative delays by permitting certain prospective immigrants to be in the United States in temporary status while they await the processing of their applications for permanent residence (the "green card"). (The beneficiaries of this law are primarily fiance(e)s, spouses, and children of U.S. citizens; spouses and children of lawful permanent residents; and designated nonimmigrant workers.) See Stephen Yale-Loehr et al., T, U and V Visas: More Alphabet Soup for Immigration Practitioners, 6 Bender’s Immigr. Bull. 113 (Feb. 1, 2001). Congress also amended INA § 245(i), the provision by which noncitizens can adjust to green-card status by paying a surcharge of $1000, even though they are otherwise barred because they entered illegally, overstayed, or took unauthorized employment. The amendment, widely misunderstood as an amnesty, set a new deadline (which expired last April 30) for filing an application or petition to qualify for a visa number as a worker or relative. Stanley Mailman and Stephen Yale-Loehr, It Isn't an Amnesty, But . . ., N.Y. Law J., Feb. 22, 2001, at 3, reprinted in 6 Bender’s Immigr. Bull. 88 (Jan. 15, 2001). With these successes, immigration activists looked for more this year. For example, on September 6, after protracted negotiations, the Senate, by unanimous consent passed a further extension of the § 245(i) filing date to April 30, 2002, or 120 days after the INS issues implementing regulations, whichever is later. (To take advantage of this provision, the alien would need to have the qualifying family relationship by August 15, 2001, or, in a job-offer case, have an application for labor certification filed by that date.) And on September 5, the House of Representatives passed H.R. 2277 and H.R. 2278, which would authorize employment to the spouse of a nonimmigrant treaty trader (E-1), treaty investor (E-2), or intracompany transferee (L-1). Taking the most immigration newsprint before September 11 was a proposal by the George W. Bush and Vicente Fox administrations to promote a safer flow of migrants across our Mexican border under an improved program for temporary workers. Some versions of that program would permit undocumented Mexicans to earn the green card by doing agricultural labor or other hard-to-fill jobs. The September 11 attacks have taken the air out of those legislative balloons, including efforts to undo some of IIRIRA’s worst mistakes. Indeed, noncitizens now confront even more restrictive measures. Proposals that would simply shut off immigration, like those by the Federation for American Immigration Reform (FAIR), are mindless. Of course we want to keep out terrorists; the question is how to spot them. We cannot simply close our borders. And as much as we might like to screen out terrorists by careful definitions, legalisms in this area are seldom enough. It is the facts about the individual that are hard to come by. Readers of the espionage genre know that actual foreign agents can often penetrate the best passport controls. According to the editors of the N.Y. Times, the administration failed to establish that any delay in enacting anti-terrorism legislation made us more vulnerable to terrorists. Toward a Balanced Terrorism Bill (Editorial), N.Y. Times, Oct. 4, 2001, at A26. Still, as professors James C. Hathaway and Colin J. Harvey recently observed, "One of the truly ironic results of the Oklahoma City bombing of 1995, a terrorist act with no foreign connections, was that it led to the enactment of unprecedented restrictions on the admission of noncitizens to the United States." Framing Refugee Protection in the New World Disorder, 34 Cornell Int’l L. J. 257, 258 n.2 (2001). In the wake of the September 11 devastation and further threats by foreign enemies, those restrictions were extended. Our immigration laws had made terrorists unwelcome even before the USA PATRIOT Act was enacted. Among the classes of aliens ineligible for visas or admission to the United States are criminals, saboteurs, espionage agents, and terrorists. See particularly INA § 212(a)(3)(B), 8 U.S.C. § 1182(a)(3)(B) (2000) (concerning terrorist activities). That bar applies equally to someone who otherwise qualifies for an immigrant visa, say as the spouse of a U.S. citizen, and to a nonimmigrant who seeks temporary admission as a visitor or student. As earlier enacted, INA § 212(a)(3)(B) specifically bars any noncitizen if there is a "reasonable ground to believe" that he has engaged or, on entry, will engage in terrorist activity; or if he has incited terrorist activity. It also bars any member of a foreign terrorist organization or a representative, including a spokesman, of such a group. The statute broadly defines "terrorist activity" to include hijacking, assassination, a violent attack on an internationally protected person, or the use of various agents or devices to endanger persons, or damage property. A person "engage[s] in terrorist activity" if he plans such activity, gathers information on potential targets, provides material support to anyone he knows or has reason to believe is a terrorist, solicits funds for terrorist activity or a terrorist organization, or solicits someone for membership in the activity or organization. Under INA § 219, 8 U.S.C. § 1189, the Secretary of State may designate a foreign organization as a terrorist organization if it engages in terrorist activity that threatens the national security of the United States or the security of its nationals. INA § 237(a)(4)(B), 8 U.S.C. § 1227(a)(4)(B) contains a counterpart under which a foreign person already in the United States may be expelled for such activities. The USA PATRIOT Act goes significantly further. It expands these extensive measures, for the most part with retroactive effect. Section 411 of the Act amplifies the grounds for making suspected terrorists inadmissible. For example, it broadens the definition of a terrorist organization. And it includes as a terrorist activity giving funds, "other material financial benefit," or other material support to a group designated as a terrorist organization. If a friend’s pet charity turns out to be such an organization, a noncitizen who buys a raffle ticket or addresses envelopes for a fundraiser to benefit that charity theoretically could be deportable. Should she have known that it would provide support to a group designated by the Secretary of State as a terrorist organization? Is she chargeable with reading the Federal Register? Even such support to a non-designated terrorist organization might trigger the inadmissibility bar unless the individual can demonstrate "that he did not know, and should not reasonably have known that the act would further the organization’s terrorist activity." Section 411 of the USA PATRIOT Act adds two other distinct bases of inadmissibility for terrorist-related activities. One bars those who have used their position of prominence to endorse or espouse terrorist activities, or to persuade others to do so. (This ground applies only if the Secretary of State decides that the activity undermines U.S. efforts to control terrorism.) The other bars an individual simply for being the spouse or child of someone found inadmissible as a terrorist if the underlying activity occurred during the prior five years. This ground does not apply to a spouse or child who "did not know or should not reasonably have known" of that activity. Nor does it apply if the consular officer or Attorney General has reasonable grounds to believe that the proscribed activity has since been renounced. But it does seem to bring within its scope the woman who knew of the activity but could do nothing about it, and may even have succeeded in fleeing the clutches of that terrorist but was unable through fear or circumstances to thwart his intentions. Section 412 of the USA PATRIOT Act requires the Justice Department to detain any noncitizen suspected of being a terrorist for up to seven days without charges. That mandate applies if the Attorney General or the Deputy Attorney General personally certifies that there are reasonable grounds to believe that the individual is inadmissible or deportable as a spy, saboteur, revolutionary, or terrorist, or is engaged in another activity that endangers the national security. The government then has seven days to file immigration or criminal charges or to release him. The premise that our government can properly detain anyone for so long without charges will undoubtedly trigger a constitutional challenge. Compare United States v. Salerno, 481 U.S. 739 (1987) (rejecting constitutional challenge to pretrial detention provisions under the Bail Reform Act of 1984); Wong Yang Sung v. McGrath, 339 U.S. 33, modified, 339 U.S.908 (1950) (holding that a noncitizen, once having entered the United States, even illegally, is entitled to procedural due process). Section 412 expressly deals with the government’s initial inability to remove the detainee following a removal order. If it is unlikely that he can be removed "in the reasonably foreseeable future," section 412 permits his continued detention for additional periods of up to six months, but only if release will threaten the national security or the safety of the community or an individual. Although this provision was apparently crafted with an eye to Zadvydas v. Davis, discussed above, it could founder on that decision’s analysis. Section 412 also specifically states that "custody shall be maintained irrespective of any relief from removal . . . granted the alien" until the certification is lifted. What it fails to address directly is the possibility that an immigration judge may terminate the proceedings for lack of proof. Whether the INS could then continue to hold the individual is another possible question for the federal courts. Section 412 limits court access to habeas corpus. The proceeding may test both the propriety of the certification and the ultimate question of detention. A habeas challenge may be brought in any district court where venue lies, giving lawyers for the detainee an option in some cases between the convenience of the district of detention and what may be the more favorable law of the District of Columbia. How much due process are we prepared to give up to improve our security from noncitizens? And how much security do we gain by banning the citizens of other countries who sharply criticize the United States and consort with our enemies? A recent news article touches on these questions. See Jonathan Kaufman, In the War of Words, A Palestinian Professor Tests Limits of Liberty, Wall Street J., Oct. 1, 2001, at A1. The professor, Sami al-Arian, educated in Egypt, has worked in the United States since 1975 and taught at U.S. universities. An Islamic activist, he has called for a "jihad," or holy war, and "death to Israel." And he has invited Middle East radicals to speak at U.S. conferences, including a Palestinian scholar who left the United States to head up the terrorist group known as Islamic Jihad. Al-Arian himself says: "No other country would allow me to do what we did. . . . In Israel I would be in jail. In Syria I would be dead. But this is America." Only time will tell whether America will still tolerate Mr. al-Arian under the USA PATRIOT Act. On its face, such a law gives the INS a better legal basis for al-Arian’s removal. Whether the law will stand up to constitutional scrutiny is another matter. As Sen. Patrick Leahy (D-VT), chairman of the Senate Judiciary Committee, said when finally agreeing to the Senate version, "I think we’re pushing the constitutional envelope." The New Yorker, Oct. 15, 2001, at 60. Many lawyers would agree. But before we find out, the law and its chilling effect could be around for a long time. It took almost five years after IIRIRA was enacted before the Supreme Court decided St. Cyr and Zadvydas, and many other legal challenges to IIRIRA’s restrictions remain. * An earlier version of this article originally appeared in the October 22, 2001 issue of the New York Law Journal, before the final version of the USA PATRIOT Act was enacted. This version updates that article. Copyright © 2001 the New York Law Publishing Company. The authors thank the Journal for permission to reprint and update the article. ** Stanley Mailman and Stephen Yale-Loehr are co-authors of Immigration Law and Procedure, published by Matthew Bender and Company, Inc. Mr. Mailman is of counsel to Satterlee Stephens Burke & Burke in New York City. Mr. Yale-Loehr is of counsel at Miller Mayer(http://www.millermayer.com) in Ithaca, New York, and teaches immigration law at Cornell Law School. He can be reached at syl@millermayer.com.
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