AILA Washington Update--What's Going on in Congress

AILA

WASHINGTON UPDATE

Volume 5, Number 18, December 21, 2001

In this Issue: Congress Wraps Up; Spousal Work Authorization Awaits President's Signature; Border Security Bill Passes House, and almost Senate, in Record Time, Leaves without Considering this Measure; Section 245(i), Again in the Spotlight; U.S. and Canada Sign Agreement; Attorney General John Ashcroft Accuses Critics of Aiding Terrorists; AILA Member and Client Testify Before Senate Subcommittee; Senate Judiciary Debates Congressional Involvement and Scope of Military Tribunal; INS Sends Names to be Added to the FBI Crime Database; Employment Verification Pilot Program Clears Congress; Senate Judiciary Approves Refugee Status for Certain Vietnamese Nationals. Recent Legislation. Media Spotlight: Senators Kennedy and Brownback on "A Nation of Immigrants Faces the Challenge"; Tracking the Media; Members and Staff in the News. Did You Know?

Congress Wraps Up

Two months after the original target adjournment date, Congress has ended its work for this session. This year has been filled with drama due to the close margins between the two parties, the Democratic take-over of the Senate, the September 11 terrorist attacks, and the looming 2002 elections. Congress is scheduled to return on January 23, unless leadership calls Members back earlier because of an emergency, a usual precaution taken during a national crisis.

Between now and January 23, we urge AILA members to meet with their Senators and Representatives while they are in their states and districts. Please contact the Advocacy Department at 202-216-2400 for more information.

Spousal Work Authorization Bills Ready for President's Signature with Senate Passage of these Measures

Following their passage in the House on September 5, the Senate on December 20 passed two bills that would provide work authorization for spouses of international transferees. The bills, H.R. 2277 and H.R. 2278, await the President's signature.

H.R. 2277 would grant work authorization to spouses of E visa holders. E visas are granted to traders and investors from countries that have trade agreements with the U.S. The law currently allows spouses of these professionals to accompany them for the length of their assignment, but ban them from working in the US. As a result, spouses are forced to put their own careers on hold for the length of a visa holder's assignment. H.R. 2278 would grant work authorization to spouses of L visa holders and also would reduce the amount of time that an employee must be employed by a company before being eligible for an L visa. This provision, commonly known as the "pre-employment blanket requirement," currently calls for a minimum of one year of employment with the company in any of the last three years before being eligible for an L visa. Under this new legislation the pre-employment blanket requirement would be reduced to six month, making is easier and faster for companies to transfer valuable employees to their U.S. branches.

These measures help fill the need for specific skills in the U.S. economy. Industries are facing problems transferring executives to the U.S. due to employment ban for their spouses. Today most families are sustained on dual incomes. Significantly cutting the annual income of these families by not allowing one of the spouses to work makes it especially hard for companies to find employees able and willing to undergo such a change.

Border Security Bill Passes House, and almost Senate, in Record Time

Three months have passed since the September 11 terrorist attacks. Since that time, AILA has been involved in efforts to enhance our nation's security that are based on the following five assumptions: 1) We undertake these tasks as a nation of immigrants and that immigration remains central to who we are as a country and helps explain our success as a people and a nation. 2) We also take on this task with the clear understanding that it is precisely in times of danger that we must fiercely defend our Constitution and the protections and liberties that distinguish us from other nations. 3) Just as we cannot repudiate our values, we cannot destroy our commerce. Measures we take cannot destroy our economy. Our economic security contributes to our national security. 4) The key to enhancing our national security is increased intelligence. 5) Our best protection derives from keeping targeted people from entering the U.S. Such measures are more effective and easier to implement than measures that focus on persons after they enter the United States. In all cases, we need to make sure that we keep out people who want to do us harm, not those seeking to come to our country for the reasons that people have always come here, including reuniting with their families, working or escaping persecution.

These assumptions underlie S. 1749, the Enhanced Border Security and Visa Entry Reform Act of 2001 which was introduced in the Senate on November 30. Senators Edward Kennedy (D-MA), Sam Brownback (R-KS), John Kyl (R-AZ) and Dianne Feinstein (D-CA) developed this bill which brought together many of the provisions that were in the two very different bills that Senators Kennedy and Brownback (S. 1618) and Senators Kyl and Feinstein (S. 1627) earlier had introduced. S.1749 includes many needed reforms that will deter terrorism by developing layers of protection both outside and within the U.S.

While the House passed H.R. 3525, the companion measure to S. 1749 that was introduced by Representative James Sensenbrenner (R-WI) on December 19, the Senate failed to vote on this measure before this session of Congress ended. Senator Byrd blocked consideration of the bill reportedly due to his displeasure with the Administration for not supporting an increase in the supplemental for border security. Despite supporting this measure - especially when it included an extension of Section 245(i), the Administration also reportedly moved to block passage due to concerns about deadlines in the bill. (See below for reports on Section 245(i).) Notwithstanding this delay, S. 1749 has generated strong, bipartisan support and will be back on the Senate's calendar when Congress returns.

S. 1749/H.R. 3525 share many provisions in common, including:

Authorizing increased funding for the DOS and INS
Requiring federal agencies to coordinate and share information needed to identify and intercept terrorists.
Encouraging the use of new technologies by authorizing funds to improve technology and infrastructure at INS, the Customs Service, and DOS, and targeting much of this effort at strengthening our nation's borders.
Implementing a study to determine the feasibility of a North American Perimeter Safety Zone. This study includes a review of the feasibility of expanding and developing pre-clearance and pre-inspections programs
Including provisions for a workable entry-exit control system that does not go beyond the sensible agreement reached in the INS Data Management Improvement Act
Implementing changes in the Foreign Student Monitoring Program that will fill in gaps in data and reporting
Providing for a one-year extension of the deadline for individuals crossing the border to acquire biometric border crossing cards.

S. 1749/H.R. 3525 includes many long overdue changes, and also poses challenges to our country, the Congress, federal agencies, and the American people. 1.) Given the bill's very ambitious deadlines, Congress needs to provide the federal agencies with the staffing and funding levels they need to implement this measure's provisions. It is simply unacceptable for Congress to pass this bill and not give the federal agencies the funding they need to do a good job. 2.) Some of the bill's provisions, particularly several of the mandated implementation deadlines, may impact negatively on cross border commerce and travel. Congress needs to be alert to the consequences of these short time frames, and be willing to modify these deadlines as needed. 3.) The federal agencies, especially the INS and DOS, have an important role to play in enhancing our nation's security, as is evident in this bill. This measure, if sufficiently funded, will give the agencies the tools they need to do their job. For their part, the agencies need to be up to the task of implementing major reforms that address our security needs at the same time they recognize the continued importance of immigration to our nation: people will continue to seek entrance to the U.S. to reunite with their families, join the American economy, and seek safe haven. The cross-border flow of commerce and goods must continue.

Section 245(i) Again in the Spotlight

Immigration advocates were disappointed when a vocal minority of House Republican restrictionists succeeded in blocking an extension of Section 245(i) from being included in H.R. 3525, the Enhanced Border Security and Visa Entry Reform Act of 2001. This measure passed the House by unanimous consent on December 19. (See article above.) The extension (which also was deleted from the Senate border security bill, S. 1749) was the compromise measure the House and Senate agreed upon in early September, and the House was set to vote on September 11, but did not due to the terrorist attacks. The compromise measure would have extended Section 245(i) until April 30, 2002 and required that the familial relationship existed before August 15 or the application for labor certification be filed before August 15. The Bush Administration supported the inclusion of this provision in the Senate bill, but did not deliver House support. Immigration advocates are disappointed with the Administration's inconsistent stance and its apparent lack of support for this important measure.

House Republican restrictionists, lead by Representatives Tom Tancredo (R-CO) and Dana Rohrabacher (R-CA), in the last few months have attacked Section 245(i), alleging that passing this measure will hurt our nation's security. Their allegations stand in contrast to the positions of other Republicans. Representatives Lincoln Diaz-Balart (R-FL) and Chris Cannon (R-UT) sent out a "Dear Colleague" letter on December 20 setting the record straight on Section 245(i) and emphasizing that "any suggestion that temporarily extending 245(i) endangers our national security is unacceptable, unfortunate and not based upon truths or facts. The Bush Administration, with security concerns foremost in mind, continues to support extension of Section 245(i). So should we."

Immigration advocates condemn the restrictionist's smear campaign, and in a December 18 letter to the House, make the following points in support of extending Section 245(i) in our national security-focused climate:

Immigrants who would otherwise live an underground existence come out of the shadows. Immigrants who qualify to adjust their status in the United States under Section 245(i) have been living here awaiting legal permanent status. When they use Section 245(i) to adjust their status, they provide the INS with accurate and up-to-date information on their activities and whereabouts, both on their applications and during in-person interviews. Without Section 245(i), these people will continue to live in the United States, but will not make themselves known to the government for fear of being separated from their families and jobs.
Immigrants are subject to intense scrutiny. Immigrants who qualify to adjust their status in the United States under Section 245(i) face a rigorous screening process that involves a lengthy application, criminal background checks, in-person interviews, and other hurdles. Applicants are required to be fingerprinted and the fingerprints are then checked against databases maintained by the Federal Bureau of Investigations (FBI). In addition, certain identifying biographic data about each applicant is transmitted to the Central Intelligence Agency (CIA). In return, the CIA advises the INS when information in their files appears to relate to an applicant. In addition, the basis for eligibility (such as a marriage or an offer of employment) is closely examined, and any suspicion of fraud or misrepresentation is carefully investigated.
The Immigration and Naturalization Service gains an important stream of revenue. The $1000 fee immigrants pay to use Section 245(i) is a significant source of money for INS enforcement and adjudication efforts. The INS estimates that in FY 1997, the last fiscal year this provision was fully implemented, Section 245(i) generated about $200 million in revenue. The absence of Section 245(i) has lead to shortfalls in revenue that have negatively impacted the agency's enforcement and adjudications missions.

Advocates will continue to work in support of Section 245(i). A procedure through which eligible people are able to legalize their status is a top priority for immigrant communities nationwide, and remains on the top of our agendas.

U.S. and Canada Sign Agreement

Canada and the United States on December 12 signed the "Smart Border Declaration" which outlines a 30-point action plan through which both countries would collaborate in identifying and addressing security risks "while efficiently and effectively addressing the legitimate flow of people and goods back and forth across the Canada-U.S. border. The new objectives contained in the Secure and Smart Border Action Plan are as follows:

Secure Flow of People:

develop and deploy a secure card for permanent residents;
resume, evaluate and expand the NEXUS pilot project at the Sarnia-Port Huron border point and discuss its expansion to air travel;
review practices and procedures for the screening of refugee/asylum claimants;
implement the Canada-U.S. Pre-clearance Agreement, resume in-transit pre-clearance at Vancouver and expand it to other airports;
share Advance Passenger Information and agreed-to Passenger Name Records for flights in transit and between Canada and the U.S.;
review customs and immigration presence and practices at international ferry terminals;
develop jointly an automated immigration database; and
provide international technical assistance.

Secure Flow of Goods:

establish complementary systems for commercial processing, including audit-based programs;
develop an integrated approach for processing truck, rail and marine cargo away from the border;
establish criteria for the creation of small, remote joint border facilities;
share customs data; and
exchange information and analysts to target marine in-transit containers.

Secure Infrastructure:

work to secure resources for joint and coordinated physical and technological improvements to border and trade corridor infrastructure;
deploy interoperable technologies for the secure movement of goods and people;
assess threats and protect transborder transportation and other critical infrastructure; and
finalize agreement on comparable/equivalent aviation security and training standards.

Coordination and Information Sharing:

address legal and operational challenges to joint removals of deportees;
bring into force legislation on terrorism;
exchange advance information on individuals and organizations designated as engaging in terrorist fundraising; and
increase dialogue and commitment to joint counter-terrorism training and exercises.

Immigration advocates have expressed concern about the impact of this agreement on people seeking asylum. Asylum seekers on the U.S. side of the border seeking asylum in Canada could be forced to apply for asylum in the U.S. (where they are more likely to be detained and denied). Currently, about 40% of asylum seekers in Canada arrive from the U.S. In addition, asylum seekers who lose in the U.S. may be unable to apply in Canada.

Attorney General John Ashcroft Accuses Critics of Aiding Terrorists

In the face of growing criticism over the aggressive and controversial policies the DOJ has adopted in its investigation of the September 11 attacks, Attorney General John Ashcroft defended his tactics during his December 6 testimony before the Senate Judiciary Committee. "We need honest, reasoned debate, not fear mongering," Ashcroft said. "To those who scare peace-loving people with phantoms of lost liberty, my message is this: Your tactics only aid terrorists, for they erode our national unity and diminish our resolve. They give ammunition to America's enemies and pause to America's friends. They encourage people of goodwill to remain silent in the face of evil."

Those remarks did little to appease those members of Congress who have expressed concern over how the DOJ has handled the investigation, and touched off a new series of rebukes from both ends of the political spectrum. A Washington Post editorial said those remarks "explain perfectly why many people have concerns about his leadership in this uncertain time. It is the attorney general's function, or should be, to ensure that a lively debate over policy is protected -- even during wartime. Mr. Ashcroft instead challenges the patriotism of those who dissent." Even the Washington Times, an ardent supporter of the Administration, said, "Mr. Ashcroft did little to clarify the confusing and seemingly contradictory explanations coming from the administration." After the hearing, Judiciary Chairman Patrick J. Leahy (D-VT.) said, "This is not a question of whether you are for or against terrorists. Everyone is against terrorists. This is about whether we are adequately protecting civil liberties."

At issue in the hearing was a series of controversial measures the DOJ adopted in the wake of the September 11 attacks. Of particular concern is the unprecedented level of secrecy surrounding the government's detention of more than 1,200 people in the investigation of the Sept. 11 terrorist attacks, the Justice Department's newly created power to monitor prison conversations between some detainees and their lawyers, new authority to continue to detain people on immigration charges even after an immigration judge has allowed them released, and ongoing law enforcement interviews with 5,000 men--most of whom are Muslim. Many critics view these measures as an attempt by the Justice Department to get around the limitations that Congress imposed in the USA PATRIOT Act that includes broad new law enforcement powers.

During the hearing, Mr. Ashcroft repeatedly referred to the Administration's actions as measured steps that were "crafted carefully." However, he was unable to answer the question of why, if that was true, the Justice Department had offered a series of different explanations for why it would not release the names of people being held in detention. The Administration gave a number of different explanations about how the military tribunals would operate, of what it means by "no judicial review" and whether the tribunals would really be able to impose the death penalty on a defendant with only a two-thirds vote of the judges.

AILA Member and Client Testify Before Senate Subcommittee

AILA member Michael Boyle and his client Ali Al-Maqtari testified on December 4 before the Senate Constitution Subcommittee. (Copies of their testimony can be found on InfoNet.) Subcommittee Chair Senator Russ Feingold (D-WI) convened the hearing that was the third in series of Senate hearings held to investigate the Department of Justice's (DOJ) handling of the investigation into the September 11 terrorist attacks. Since September 11, the Justice Department has acknowledged that it has detained over 1,200 people and charged nearly 600 of those with immigration violations. The Justice Department has provided little information about who has been detained or why. Senior Justice Department officials have acknowledged that only 10 to 15 of those detainees are suspected of having any information related to terrorism, and so far only one is believed to have any information related to the September 11 attack.

Mr. Al-Maqtari provided compelling and emotional testimony on the conditions and treatment that he faced. Mr. Al-Maqtari and his American wife, Tiffany, were detained on September 15 when they drove to the gate at Fort Campbell, Ky., where she was scheduled to begin training in the U.S. Army. Over several days he endured "harsh questioning," and eventually was charged with not filing immigration papers regarding his marriage to a U.S. citizen before his visa expired. He first was placed with the general inmate population, and then moved into a segregated unit, where he was allowed only one fifteen minute phone call per week, and was threatened by violent criminals also housed there. Mr. Al-Maqtari testified that in the nearly 8 weeks that he was detained on immigration charges, he was screamed at by federal agents, lied to and cut off from his lawyers. Although his story had "a good ending" with his release, Al-Maqtari urged senators "to try and fix these problems" and to "protect other innocent people" from the Immigration and Naturalization Service. "My experience with the INS was very bad…They lied to me and locked me in jail for 8 weeks with no evidence against me." "What was happening to me," Al-Maqtari said, "was totally different than how I thought America worked."

Michael Boyle, an AILA member from Connecticut, offered in his testimony a broader view of the policies and procedures the DOJ has adopted under the guise of fighting terrorism. Mr. Boyle testified that many of tactics the DOJ used were overly broad and exceeded even the expanded powers that Congress recently authorized in the fight against terrorism. "Our Constitution was written to protect everyone in our country," Boyle said. "The sweeping, new practices limit our freedoms in dangerous ways. Widespread arrest of noncitizens based on ethnic profiling, secret court hearings, long detention based on suspicion rather than concrete evidence, and wiretapping conversations between attorneys and clients are not the American way. Yet the Justice Department's new practices and regulations allow local INS and other Justice Department employees to employ them on a widespread basis, with little accountability to the American people. While every step must be taken to protect the American people from further terrorist acts, we need to preserve the basic rights and protections that make American democracy so unique and precious. Reining in excessive practices that corrode those basic rights is critical to the defense of our democracy."

Senate Judiciary Debates Congressional Involvement and Scope of Military Tribunals

The Senate Judiciary Committee held a December 4 oversight hearing to review the President's order to use military tribunals against terrorists. At issue was an order from President Bush on November 13 that would allow non-citizens to be tried by military tribunals rather than criminal courts. The White House has indicated that the order would apply only to non-citizens apprehended abroad, but no such limitation exists in the language of the President's order. The absence of such language in the order leaves open the possibility of targeting people lawfully present in the U.S.

Senator Charles Schumer (D-NY) echoed concerns shared by other Committee members that there had been inadequate consultation with Congress. He emphasized that Congressional involvement is essential to the U.S. tradition of checks and balances and would offer the opportunity to discuss how to meet the goals of safeguarding national security while ensuring basic rights. Such consultation would lend legitimacy to military tribunals, thereby generating more confidence and acceptance from the American public and our foreign allies. Senator Arlen Specter (R-PA) noted his concern that habeas corpus protection not be eliminated and questioned the difference between the military tribunals proposed in the order and those of Peru and Nigeria that State Department has criticized in the past. Senator Feingold (D-WI) expressed concern about inadequate consultation with Congress and no demonstration of ineffectiveness of federal courts.

The witnesses focused on the use of military tribunals and their constitutionality. Pierre-Richard Prosper, Ambassador-at-Large for War Crimes Issues in the State Department, testified that the President's order creates proper boundaries for procedures to ensure fundamental fairness and that the general framework of the order is consistent with precedents established during the previous usage of such forum. He also emphasized that the September 11 attacks are "war crimes" with the circumstances justifying the use of military commissions. Ambassador Prosper told the Committee that, under the President's order, only non-citizens charged with war crimes relating to international terror can be brought in front of a military tribunal

INS Sends Names to be Added to the FBI Criminal Database

INS Commissioner James Ziglar on December 5 announced that the agency would send to the FBI the names of the approximately 314,000 immigrants who have been ordered deported for entry in the National Crime Information Center (NCIC) database. Once these names are entered into the NCIC, immigrants who were ordered deported would be subject to apprehension if they were stopped for some reason.

The new measure would allow local and state police officers writing a traffic violation to determine if the person is subject to a deportation order. Previously, only foreign nationals sought on criminal charges, not immigration violations, were entered into the NCIC database. INS estimates that the new system will lead to the detention of up to 10 percent of the missing deportees each year.

AILA is concerned that individuals may be falsely arrested or wrongfully deported by local police and/or INS officials due to the fact that common names or surnames are listed in the database, names are misspelled, and names of individuals may be put on the NCIC database even though their stays of deportation or their removal orders are not final. In addition, many immigrants are ordered deported in absentia, never realizing they were sent a notice for a court appearance because they had moved and INS, often despite notification, sent the notice to an incorrect address. Unknown to them, they will be listed on this criminal database and can be detained by the police, arrested, and transferred to the INS for deportation.

Employment Verification Pilot Program Clears Congress

The House on December 11 and the Senate on December 20 approved the Basic Pilot Extension Act, H.R. 3030, introduced by Representative Tom Latham (R-IA). Under this measure, the employment verification program would be extended for an additional two years. The pilot program was part of IIRAIRA (PL 104-208) and expired on November 30 of this year. Under the employment verification pilot program, employers receive software that allows them to access federal databases to screen potential employees to determine if they are eligible to work. The bill awaits the President's signature.

Senate Judiciary Approves Refugee Status for Certain Vietnamese Nationals

The Senate Judiciary Committee on December 13 approved H.R. 1840, introduced by Representative Thomas Davis (R-VA). This measure would extend eligibility for refugee status to eligible children of Vietnamese nationals that were interned in "re-education camps" in Vietnam by the Socialist government or were accepted under the Orderly Departure Program or the U.S. consulate in Ho Chi Minh City.

Recently Introduced Legislation

S.1892 Introduced by Senator Feinstein (D-CA), S.1892 would provide for transitional employment eligibility for qualified lawful permanent resident alien airport security screeners until their naturalization process is completed, and to expedite that process.

S. 1764 Introduced by Senator Corzine (D-NJ), S.1764 would accord honorary citizenship to the alien victims of September 11, 2001, terrorist attacks against the United States and to provide for the granting of citizenship to the alien spouses and children of certain victims of such attacks.

S.1749 Introduced by Senator Kennedy (D-MA), S. 1749 is the compromise border security and visa reform measure that includes provisions from S.1627 and S. 1618,

H.R. 3525 Introduced by Representative Sensenbrenner (R-WI), H.R.3525 is similar to S. 1749 and would enhance border security and reform the visa process.

MEDIA SPOTLIGHT

A nation of immigrants faces the challenge
By Edward M. Kennedy and Sam Brownback

AS THE NATION tries to strengthen its laws to keep terrorists out, we must never forget that it faces this challenge as a nation of immigrants.

Immigration is a central part of our heritage and history. It is essential to who we are. Continued immigration is part of our national well-being, our identity, and our strength. In defending the nation, we are also defending the fundamental values that have made America strong.

Congress and the administration are working together to provide the means for law enforcement to identify, apprehend, and detain potential terrorists, without compromising either our values or our economy. We must defeat terrorism without letting terrorism defeat our way of life. Our action must strike a balance between the need for strong law enforcement and our abiding commitment to civil liberties.

''Fortress America,'' even if it could be achieved, is an inadequate and ineffective response to the terrorist threat. Immigration is not the problem; terrorism is.

It is clear that we must take firm, intelligent, and effective steps to protect our borders and keep out those who mean us harm. However, to combat terrorism, we need not obstruct the entry of the more than 31 million foreign nationals who legally enter the United States each year as visitors, students, and temporary workers; nor need we frustrate the millions of others who cross legally from Canada and Mexico daily to conduct business or visit their families. We can take decisive steps toward securing our borders through enhancing intelligence on who is entering and leaving.

There is much more that Congress and the administration can do to apprehend potential terrorists before they act. Accurate and timely intelligence is critical. Federal intelligence and law enforcement agencies maintain lookout lists containing the names of foreign nationals who should not be admitted to the United States. To prevent the admission of persons who are security risks, intelligence agencies and law enforcement agencies, including the CIA, the National Security Agency, and the FBI, must share critical information with the Department of State and the INS.

These two agencies should have electronic access to all lookout lists maintained by other agencies. In the war on terrorism, we cannot afford to have agencies hoard information, nor can we afford to have antiquated technology guarding our borders. We should increase funding and data access for the Department of State and INS to help increase the layers of protection that stand between us and our adversaries.

US consulates must be strengthened as the first line of defense against terrorists seeking immigration visas. Most foreigners traveling to the United States must apply for visas from US consulates. Too often, consular officers who screen visa applicants are junior personnel with little experience, and their screening often concentrates on detecting persons likely to overstay their visas? not whether they present a security risk.

New technologies can improve security. The current lookout system is defective.

Potential terrorists often use aliases and produce false or stolen identification. New biometric technology can match names with unique identifying characteristics of individuals. One of these technologies is a recognition system that uses cameras to scan a person's face and compare the picture with a database containing photos of persons on a lookout list. This is effective, affordable, and critical to our security.

North American cooperation is essential. The United States needs to increase coordination with Canada and Mexico to enhance the security of all three countries and to create a North America-wide perimeter. Each country should evaluate and upgrade the ability of its current systems to protect all three nations while facilitating the movement of goods and persons. We need to adjust our visa requirements to take into account one another's security concerns. We also need to cooperate more closely with our European allies and other nations and share information that our respective intelligence services collect.

Individuals need to be screened before they arrive in the United States. Screening travelers at their point of departure moves our security perimeter farther away from our borders and increases the likelihood of thorough security checks. We should require all international flights to transmit the names of their passengers to be checked against the lookout list prior to arrival.

Foreign nationals can be monitored more closely in the United States. Upon arriving in the United States, noncitizens complete an entry form that they are supposed to return when they leave the country. A 1996 law mandated development of an automated system to record entry and departure of noncitizens, but implementation has been delayed several times because the technology is costly. Clearly, these efforts have new urgency.

We can enhance our security and remain true to our immigrant tradition and history. As a nation of immigrants, we have achieved freedom together

Published in the Boston Globe, December 6, 2001

Tracking the Media: Investigation into Terrorist Attacks Still Tops Issues in the Press; U.S.-Mexico Migration Policy Resurfaces

As the anti-terrorism investigation continues, the media is continuing to tell the stories of detainees.

The New Jersey Law Journal conducted a survey of defense attorneys, including several AILA members, in the New Jersey area. According to the Journal, the survey results raise "troubling questions, some legal and some merely ethical, about the length of the detentions, the level of access detainees have to counsel, and the secrecy surrounding the cases." On the basis of interviews with the attorneys surveyed, the Journal writes, "the basis for many of the arrests has been random and capricious, and… the entire process has been characterized by foot-dragging, buck-passing, and a vacuum of information."

Such allegations and their increasing frequency prompted Senators to hold a December 4 hearing on detention. Senator Russ Feingold (D-WI) said at the hearing, "Almost daily, revelations of extraordinary steps by the Justice Department" in the investigation "snub the rule of law and threaten to erode fundamental constitutional rights." Michael Boyle and his client Ali Al-Maqtari, a Yemeni immigrant, both testified at the hearing. (See article earlier in this Update about their testimony.) Coverage of the hearing by USA Today highlighted Al-Maqtari's testimony that he was "screamed at by federal agents, lied to, and cut off from his lawyers."

These reliable reports of violations of due process are heightened by the failure of the Department of Justice to provide information about the detainees. As a result, a coalition of civil liberties and immigration organizations, including AILA, is suing the government to learn who is held in the September 11 probe and whether or not they are represented by counsel. Kate Martin, director of the Center for National Security Studies, a group spearheading the lawsuit, told the Atlanta Journal-Constitution, "There is mounting evidence that secrecy is being invoked to shield serious violations of individual rights and not for legitimate investigative purposes."

The news media also has been calling into question the Administration's tactics. Recently, the media has begun to echo the call from some Members of Congress for oversight of the broad, sweeping powers that the executive branch of the government has granted itself by regulation and executive order, effectively bypassing the legislative and judiciary branches.

In an editorial entitled, "The Ashcroft Smear," the Washington Post takes the Attorney General to task for a statement he made during his testimony at a December 6 Senate hearing. During that hearing, the Attorney General challenged the patriotism of those who question his policies and those of the Administration. The Post points out that the AG's "job is to defend dissent, not to use the moral authority of his office to discourage people from participating in one of the most fundamental obligations of citizenship." The editorial notes, "It is not disloyal - in fact, it is a form of patriotism - to ask whether government is getting the powers most appropriate to the task, whether it is using them wisely, whether it may be missing important potential strategies, or even whether it is going off half-cocked against the wrong people."

Lately, the media also has focused on other issues, including United States-Mexico migration policy, which topped the political agenda and media coverage prior to the terrorist attacks. Recent meetings between U.S. and Mexican officials, visits to Mexico by top lawmakers, and the AFL-CIO's adoption of an amnesty proposal likely prompted the press to take up the topic again. According to an Orange County Register article about legalization for undocumented immigrants, "even critics of the proposed policy say current obstacles eventually will be removed."

As the U.S. economy dips into recession, lawmakers and labor leaders have emphasized that immigrants are a boon, not a burden, to the economy. House minority leader Representative Richard Gephardt (D-MO) told the Register that "the answer to our economic problems is not to refuse to go along with sensible immigration reform." And a spokeswoman for the AFL-CIO told The Washington Times, "There's no feeling in the labor movement that immigrants take away American jobs."

Members and Staff in the News

The New York Times and the Detroit Free Press quoted Ashraf Nubani (Washington D.C.) on December 19 in an article about his client, a Muslim leader detained on a visa violation. Denyse Sabagh (Washington D.C.) was quoted in a December 19 Daily Star article about the dragnet in which Middle Eastern residents of this country are being caught. Jonathan R. Nelson (New York) was quoted in a New York Newsday story about a judge blocking the city from chasing homeless people away from a midtown Manhattan church. On December 18, The Associated Press, Detroit Free Press, and Detroit News quoted Ashraf Nubani (Washington D.C.) regarding the detention of his client who served on the board of a Muslim charity.

Karen Pennington (Texas) was quoted in a December 15 Dallas Morning News article about her client, a man who was detained and deported in the post-September 11 sweep. Sohail Mohammed (New Jersey) was quoted on December 14 in an Associated Press story about his client, detained after September 11. The Atlanta Journal Constitution quoted Jeanne Butterfield (National) on December 14 regarding a ruling that required the INS to show that an alien received notice to appear for a hearing.

On December 12, Hiroshi Motomura (Colorado) appeared on CNN to answer callers' immigration questions. Cheryl Little (Southern Florida) was quoted in a December 12 Ft. Lauderdale Sun-Sentinel article about three Iraqi refugees who face deportation simply because "they were in the wrong place at the wrong time." The Washington Times quoted Jeanne Butterfield (National) on December 11 in an article about the closed and secret detention hearings creating a need for judges to gain security clearance. Martin Schwartz (Central Florida) was quoted in a Detroit Free Press article on December 11 regarding his client who was detained after September 11.

On December 10, Newsday quoted John Ovink (Central Florida) in a story regarding a coalition of attorneys offering assistance to those who are among the 5,000 to be questioned. The Wall Street and the Associated Press on December 9 quoted Mr. Ovink in an article about Florida authorities' request for INS records by Florida authorities.

Carrye Washington (Southern California) and Guillermo Suarez (Southern California) were quoted in a December 8 Los Angeles Times article about their clients detained after the September 11 attacks. Carrye Washington (Southern California) was quoted in a December 7 Los Angeles Times article about the voluntary departure of her clients who were picked up for questioning after September 11.

Nadine Wettstein (AILF), Michael Moore (New England) and Michael Boyle (Connecticut) were quoted in a December 7 New York Times article about the use of closed hearings for detainees held after September 11. On December 6, Jeanne Butterfield (National) was quoted in the Los Angeles Times regarding the FBI move to add names of those facing deportation to its criminal database.

The Atlanta Journal Constitution, Boston Globe, Dallas Morning News, Milwaukee Sentinel, Newsday and USA Today quoted Michael Boyle (Connecticut) on December 5 in articles about his client's testimony before Congress regarding his detention after September 11. Noel Saleh (Michigan) was quoted in a December 4 New York Times article about the questioning of Middle Eastern men in Michigan.

On December 3, Mark Silverman (Northern California) was quoted in the San Francisco Gate in an article on the use of the S-visa, and its potential problems for immigrants who wish to secure a visa by participating in the program. A December 2 Bergen Record article quoted Michael Wildes (New Jersey) in an article about his client, a WTC widow who may be eligible for relief from deportation.

Donna Lipinski (Colorado) and David Leopold (Ohio) were quoted on December 1 in a Knight Ridder article regarding the Justice Department making it harder for detainees to obtain orders for their release. The Journal Star on December 1 published an article written by Robert Eckerson (Iowa-Nebraska) regarding immigration policy and September 11.

Jeanne Butterfield (National) was quoted on November 30 in The Baltimore Sun about the Attorney General's use of the S visa to entice foreign nationals who may have information on terrorist activities to come forward. The Waterbury Republican-American quoted Neil A. Weinrib (New York) on November 30 in a story regarding his client, an Indian national held after September 11.

Judy Golub (National), Sohail Mohammed (New Jersey) and Amy Gottlieb (New Jersey) were quoted in a November 30 Star-Ledger article regarding the Attorney General's "Responsible Cooperators Program." On November 30, the New Jersey Law Journal quoted Claudia Slovinsky (New York), Sohail Mohammed (New Jersey), Lamiaa Elfar (New Jersey), and James Gavin (New Jersey) in a story about the legal and ethical questions surrounding the detention of Muslim men since September 11.

ABC News interviewed Karen Pennington (Texas) on November 28 about the Attorney General's order for closed hearings. Michael Wildes (New Jersey) was quoted in a November 28 Star-Ledger article about his client, a widow facing deportation due to the loss of her spouse. The Associated Press on November 27 quoted Martin Schwartz (Central Florida) in a story about his client against whom secret evidence was used in his deportation hearing.

Did You Know?

According to a CBS/New York Times Poll published in early December, 51% percent of Americans believe that immigrants to the United States positively contribute to this country. This represents a significant increase from 29% who responded positively to this question in 1994.

Judith Golub, Senior Director of Advocacy and Public Affairs
Ben Johnson, Associate Director of Advocacy
Amanda Carufel, Public Affairs Manager
Hugo Romero, Advocacy Associate
Kris Benjamin, Legislative Assistant

American Immigration Lawyers Association
918 F Street, N.W.
Washington, D.C. 20004
202-216-2403

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