9/11 and Immigration Law and Policy

Vol. 29 No. 1

By

Deepa Iyer is executive director of South Asian Americans Leading Together. Jayesh M. Rathod is an assistant professor at American University Washington College of Law and director of the law school’s Immigrant Justice Clinic.

 

The decade since 9/11 has seen a remarkable transformation of U.S. immigration law and policy. In the aftermath of the 9/11 attacks, the federal government linked immigration screening and enforcement to the protection of national security.

During the last ten years, an emphasis on national security has seeped into U.S. immigration laws, policies, and agencies. In particular, the government has scrutinized individuals of Muslim, Arab, and South Asian (MASA) descent and expanded the definition of “terrorist activity” to include a breathtakingly broad spectrum of conduct. The responses by the federal government to 9/11 have led to an unprecedented increase in detentions and deportations and unease and confusion within immigrant communities.

Controlling entry into the United States. A defining feature of post-9/11 immigration policy has been the heightened scrutiny of those who seek to enter the United States. Soon after 9/11, the federal government tightened the process of issuing temporary visas to tourists, business visitors, students, and other foreign nationals. Through provisions in the Enhanced Border Security and Visa Entry Reform Act of 2002 and the Homeland Security Act, the government called for machine-readable, tamperproof visas; enhanced use of technology and data sharing between agencies; training of consular officers on fraud terrorist identification; additional requirements for student visas; and more. As a result of these reforms, prospective students, business visitors, and others—often from countries perceived to be sources of terrorist threats—were denied entry to the United States.

In 2004 the Department of Homeland Security (DHS) officially rolled out US-VISIT, a program that requires the capture of biometric data of foreign nationals at visa- issuing overseas posts and at ports of entry in the United States. Since it was first introduced, US-VISIT has been expanded to include nearly all noncitizens, including lawful permanent residents. Civil liberties advocates have expressed concern about privacy and possible misuse of the data.

The federal government has adopted a more flexible standard in dealing with arriving asylum seekers. Under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, arriving aliens who lack proper paperwork are subject to mandatory detention. This includes asylum seekers, who tend to lack papers or identification documents owing to fear of persecution in their countries of origin. The 1996 laws allowed for the parole, or temporary admission, of certain noncitizens who affirmatively requested parole and met certain criteria. Advocacy groups complained of inconsistent and arbitrary application of the parole guidelines by local immigration officers; advocates grew even more concerned when Immigration and Customs Enforcement (ICE) issued stricter parole guidelines in 2007. In response to these concerns, ICE announced more flexible parole procedures for arriving asylum seekers. Under the new guidance, an arriving noncitizen who can establish his or her identity, does not pose a flight risk or danger to the community, has a credible fear of persecution or torture, and has no adverse factors is to be automatically considered for parole.

The federal government has also sought to control entry of foreign nationals through enhanced patrolling along the country’s southern and northern borders. After 9/11 the government invested heavily in the construction of physical barriers and “virtual fences” along the U.S.-Mexico border and has increased funding to the Border Patrol. Although the Canadian border receives less media attention, DHS has stepped up its screening efforts on bus and train routes that traverse the northern border. Immigrant advocates have raised concerns about the profiling of passengers on Greyhound buses and Amtrak trains.

Weeding out “terrorists in our midst.” Immigration laws and programs since 9/11 have been deployed as tools to monitor, remove, or otherwise limit the social membership of individuals who might pose a threat to national security. Government programs such as the Alien Absconder Initiative, the “voluntary” interviews of noncitizen men, and others were put into place; as a result, immigrants from MASA countries were interrogated, apprehended, or otherwise targeted.

The most controversial of these programs was the National Security Entry-Exit Registration System (NSEERS). Additionally, an expanded definition of “terrorist activity,” as well as naturalization delays, has beleaguered foreign nationals since 9/11. Instituted in 2002 by the Department of Justice, NSEERS operated as a tracking program that set forth registration requirements for noncitizen males 16 years and older—specifically, those who were nonimmigrants, such as visitors, students, green card holders, and asylum/refugee status seekers. Yet, not everyone was required to meet these requirements. They only applied to individuals from 25 countries: Afghanistan, Algeria, Bahrain, Bangladesh, Egypt, Eritrea, Indonesia, Iran, Iraq, Jordan, Kuwait, Lebanon, Libya, Morocco, North Korea, Oman, Pakistan, Qatar, Saudi Arabia, Somalia, Sudan, Syria, Tunisia, United Arab Emirates, and Yemen. Men from these countries were required to register with immigration authorities and upon entry into and exit from the United States at ports of entry. As a result of the NSEERS program, media reports recounted that nearly 83,000 men registered with immigration authorities and that more than 13,000 were placed into deportation proceedings. In April 2011, DHS released a rule removing the list of countries whose nationals were subject to NSEERS.

Another controversial change to the immigration laws is the expansion of the inadmissibility (exclusion) grounds relating to terrorist activity. These grounds are applied whenever a noncitizen applies for a green card or asylum and affect a significant portion of the population. With the passage of the USA PATRIOT Act in 2001 and the REAL ID Act in 2005, the terrorism-related inadmissibility grounds were expanded significantly. Under current law, the phrase “engaged in terrorist activity” has been defined to include the provision of “material support, including a safe house, transportation, communications, funds . . . or other material financial benefit . . . for the commission of a terrorist activity, or to a terrorist organization.” Regrettably, a handful of court cases applied a plain-language reading of the law, denying relief to worthy noncitizens. Since 2007 DHS has issued a series of memos, carving out situations where the material support clause may be waived. Nevertheless, many asylum seekers and applicants for permanent residence are now stuck as DHS determines how broadly to interpret the terrorism exclusion grounds.

A related concern has been the delay in adjudicating naturalization applications for applicants born in certain countries. U.S. Citizenship and Immigration Services (USCIS) is required to grant or deny citizenship within 120 days of reviewing naturalization applications. In 2002 USCIS scrutinized applications for applicants who hailed from MASA countries, leading to delays of up to two years in some cases. Although USCIS never disclosed a specific reason beyond a “background check,” the delays suggested a country-specific focus. Advocates pursued litigation in federal court, forcing adjudication of applications and calling for transparency in the review process. In 2009 USCIS began efforts to address these delays.

Increased detention, increased deportation, and prospects for the future. Since 9/11, national security concerns have merged with long-standing narratives about delinquency among immigrants. The removal of “criminal aliens” and the focus on MASA communities have become prominent features of U.S. immigration law and policy. The ICE has increasingly relied on criminal removability grounds, leading to an explosion in the population of immigrant detainees. Moving forward, the challenge will be to identify approaches that balance legitimate national security concerns with Americans’ aspirations for a more humane and just immigration system.

 

For More about the Section of Individual Rights and Responsibilities

- This article is an abridged and edited version of one that originally appeared on page 10 of Human Rights, Winter 2011 (38:1).

- For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.

- Website: www.americanbar.org/irr.

- Periodicals: Human Rights, quarterly journal; IRR News Report, quarterly newsletter; IRR E-newsletter, bimonthly electronic publication.

- CLE and Other Educational Programs: The Section offers a variety of cutting-edge CLE programs and teleconferences each year; for more information, please visit our website.

- Events: Thurgood Marshall Award Reception and Dinner, held each year during the ABA Annual Meeting; Father Drinan Service Award Reception, held each year during the ABA Midyear Meeting.

 

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