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Chapter 3: continued
NEW HARDSHIP FOR REFUGEES SEEKING ASYLUM
The legal and procedural requirements for a refugee to gain asylum in the United States are rigorous. But many of the measures instituted by the government since September 11 have made it even more difficult for those fleeing repressive governments to find safe haven here.
NEW LIMITS ON ADMINISTRATIVE REVIEW
The most sweeping change that will impact asylum seekers is a new Department of Justice regulation which goes into effect on September 25, 2002.[107] The regulation fundamentally alters the process by which asylum seekers, and other immigrants, can appeal immigration judge decisions. The regulation will drastically curtail the authority of the Board of Immigration Appeals (BIA) - the only administrative appellate body for immigration cases - to review decisions of immigration judges. The regulation eliminates in most cases the BIA’s authority to take a fresh look at immigration judge conclusions, a crucial safeguard in asylum cases, and encourages the issuance of "summary orders," mere rubber stamps of immigration judge decisions. Advocates for refugees criticized these measures when they were first proposed in February, arguing they would severely undermine the asylum appellate process and would deprive asylum seekers of a meaningful appellate review.[108] None of the amendments proposed by the Lawyers Committee and other advocacy groups were adopted by the government in the final regulation.
FORCING CANADA-BOUND ASYLUM SEEKERS TO APPLY IN THE UNITED STATES.
Another measure that will adversely impact refugees seeking asylum stems from a December 3, 2001 agreement between the United States and Canada to better coordinate security issues along the northern border.[109] As part of the negotiations over this border security agreement, the two countries are poised to sign a side agreement that would largely prohibit refugees from seeking asylum except in the country they first entered. Although this provision has nothing to do with security, it is reportedly being sought by the Canadians, since many asylum seekers in Canada transited through the United States first. The net result of such an agreement will be to increase the number of asylum seekers in the U.S. system. This would not seem to be in the interests of the United States, but reportedly the United States is prepared to sign the agreement in exchange for Canada’s agreement on other measures desired by the United States. But the agreement will cause unnecessary hardship for asylum seekers who must - because of flight patterns - transit through the United States before traveling on to Canada to reunite with family in Canada.[110]
MORE RESTRICTIONS ON PAROLE FROM DETENTION
Under the harsh provisions of a 1996 immigration law, asylum seekers who arrive without valid travel papers must be detained until they articulate a credible fear of persecution, at which time they are eligible for release on parole, provided they satisfy certain requirements. But INS parole practices, which are routinely arbitrary and abusive, have become even more restrictive since September 11. This is likely the result of a memorandum issued by the INS in November 2001, which states that “[d]uring the nation’s heightened security alert and until further notice,” District Director (or other specified) approval is required in order to parole aliens or take certain other actions. The memorandum states that: “discretion [to release] should be applied only in cases where inadmissibility is technical in nature (i.e., documentary or paperwork deficiencies), or where the national interest, law enforcement interests, or compelling humanitarian circumstances require the subject’s entry in the United States ….” The memorandum states that it does not change existing statutory and regulatory standards for parole,[111] but since parole decisions by the INS are discretionary and not subject to review by a judge, the November memorandum is likely seen by parole decision-makers as a further invitation to refuse parole requests.
DISCRIMINATION
One of the core values of American culture and democracy is that all persons should be treated equally without regard to race, religion, ethnicity, sex, or national origin. The Fourteenth Amendment to the United States Constitution states, “No State shall…deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” This principle of non-discrimination also forms the foundation on which all international human rights norms are based. The United States is a party to the Convention Against all forms of Racial Discrimination (CERD), an international treaty which aims to ensure that human rights are enjoyed without discrimination based on race.[112]
Prior to September 11, there was a growing consensus in the United States that racial profiling, a law enforcement technique directed largely at people because of their color rather than their behavior, was not only in conflict with American values but was not an effective law enforcement technique. But since September 11, many people, primarily Arabs, Muslims and South Asians, have been targeted for discriminatory treatment in law enforcement and by private individuals, not because of their behavior, but because of their religion, national origin, ethnicity or color. Many have been the target of harassment and hate crimes.
On November 9, 2001, Attorney General Ashcroft issued a directive to members of Anti-Terrorism Task Forces instructing them to interview 5,000 men, 18 to 33 years old, who had entered the United States on non-immigrant visas in the past two years and come from countries “which intelligence indicated Al Qaeda terrorist presence or activity.”[113] The Justice Department's list of the young men targeted for government questioning was compiled strictly on the basis of national origin. It was announced that the interviews were voluntary, but many questioned how voluntary such interrogations were for most people, who feared that a failure to cooperate with the FBI could render them subject to detention.[114] While these interviews were underway, hundreds of Muslim and Arab men had already been detained in the investigative sweeps by the FBI and Joint Terrorism Task Forces.
In February 2002, the Attorney General announced another program, the “Absconder Apprehension Initiative.” The program places new priority on tracking down and deporting people who have already been ordered deported and failed to leave the country. But the program prioritizes only those from particular Arab and Muslim countries.[115] The names of 6,000 Arab and Muslim non-citizens are being added to the National Instant Criminal Background Check System, which will alert police to the outstanding deportation order.
By April, the Justice Department announced that a plan passed by Congress in the 1996 Illegal Immigration Reform and Immigrant Responsibility Act, but never before finalized, would be put into effect by new regulations giving local police the authority to enforce immigration laws. This move was highly controversial, not only in immigrant communities but with many police departments as well who were concerned that it might encourage racial and ethnic profiling and would have a negative impact on public safety by making immigrants fearful of the police. The plan was finalized by a regulation that went into effect on August 23, 2002, and allows the Attorney General to deputize local police officers with authority over immigration only in certain circumstances.[116] Although the new policy is more limited than originally proposed, concerns about the potential adverse effect on relations between police and immigrant communities persist. “We've spent decades establishing trust ... with our very diverse immigrant communities,” says a San Diego Police spokesman. “If there is an immigration emergency tied to criminal activity, of course we'll assist. But if it is simply an immigration violation ... we will not be involved.”[117]
In June 2002, the Attorney General proposed a new regulation creating the “Entry-Exit Registration System,” a program to better track the entry and exit of visitors to the United States. But the plan will apply only to nationals of Iraq, Iran, Libya, Sudan and Syria, as well as to “nonimmigrant aliens whom the State Department determines to present an elevated national security risk, based on criteria reflecting current intelligence.”[118] It remains to be seen who will fall in the latter category. The regulation, which was made final in August, requires all nationals from the designated countries to register with the government and be fingerprinted; failure to register is a deportable offense.[119]
In July, the Justice Department announced added penalties for non-citizens who fail to report address changes within 10 days of moving.[120] In the past, the INS was notorious for failing to keep track of change-of-address forms and often lost them; media reports around the time of the announcement about the new penalties stated that there were warehouses full of INS address change forms that had never been entered into the INS database. The new policy raised concerns that the Justice Department was simply seeking to multiply the number of and penalties for technical immigration violations so that they could be exploited to deport individuals against whom the government had no evidence of wrongdoing.
Career officials in federal law enforcement are concerned that many of these policies, which have generated such distrust and fear in Arab and Muslim communities, are simply ineffective. Vincent Cannistraro, former head of counterterrorism at the CIA, believes the FBI’s decision to round up 5,000 Arabs for questioning is “counter-productive. It alienates the very community whose cooperation you need to get good intelligence.”[121] He adds, “It is a false lead. It may be intuitive to stereotype people, but profiling is too crude to be effective. I can’t think of any examples where profiling has caught a terrorist.”[122]
From secret mass arrests, to the “voluntary” interviews of thousands, to fingerprinting and registration for those legally here, to selective enforcement against those who have been held deportable, Arabs, South Asians and Muslims -- mostly immigrants -- have borne the brunt of many of the government's new police powers. President Bush declared that the war on terrorism would not be a war on immigrants. But subsequent policies pursued by the Administration make that declaration ring hollow.
In addition to the impact of discriminatory government policies, in the first weeks after the September 11 attacks a violent backlash erupted against individuals who were perceived to be Arab or Muslim. Members of these communities were insulted, threatened, intimidated and even murdered. Government leaders, including the President and the Attorney General, spoke out forcefully against these crimes. Two days after the attacks, Attorney General Ashcroft warned, “We must not descend to the level of those who perpetrated Tuesday's violence by targeting individuals based on their race, their religion, or their national origin. Such reports of violence and threats are in direct opposition to the very principles and laws of the United States and will not be tolerated.”[123] In remarks delivered at the Islamic Center on September 17, 2001, President Bush said “Those who feel like they can intimidate our fellow citizens to take out their anger don't represent the best of America, they represent the worst of humankind, and they should be ashamed of that kind of behavior.”[124]
Despite these admonitions, the abuse continues. The Justice Department has opened more than 380 investigations into violence or threats against Arab Americans, Muslim Americans, Sikh Americans, South-Asian Americans, and those perceived to be members of these communities since September 11.[125] The Civil Rights Division reports that the “allegations include telephone, internet, mail, and face-to-face threats; minor assaults, assaults with dangerous weapons, and assaults resulting in serious injury and death; and vandalism, shootings, and bombings directed at homes, businesses, and places of worship.”[126] In addition to its efforts to educate communities at risk of this violence about how to protect themselves, the Civil Rights Divisions has focused considerable resources towards bringing perpetrators of these hate crimes to justice. Approximately 70 state and local criminal prosecutions have been initiated against approximately 80 defendants. Federal charges have been brought in 10 cases involving 12 defendants.[127]
These efforts to condemn and combat violent attacks against minorities are important and laudable. But government policies that target immigrants in these same communities for discriminatory treatment and selective prosecution must be seen as helping to perpetuate an environment in which scapegoating and bias are likely to continue.
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Endnotes
[107] Procedural Reforms to Improve Case Management, 67 Fed. Reg. 54878 (2002) (to be codified at 8 C.F.R. pt. 3).
[108] American Immigration Law Foundation News, Volume 4, Issue 3, March 2002, available at www.ailf.org;. See also Comments filed by Capitol Area Immigrants Rights Coalition (CAIR) and Comments filed by the Lawyers Committee for Human Rights (on file with the Lawyers Committee).
[109] “Joint Statement on Cooperation on Border Security and Regional Migration Issues” issued by the United States and Canada on December 3, 2001; DeNeen L. Brown, “U.S., Canada to Sign Border Accord,” Washington Post Foreign Service, December 4, 2001.
[110] See Bill Frelick, “Whose On First? The Canada-U.S. Memorandum of Agreement on Asylum,” 73 Interpreter Releases 217, February 26, 1996.
[111] Memorandum from Michael D. Cronin, INS Executive Associate Commissioner, “Deferred Inspection, Parole and Waivers of Documentary Requirements,” November 14, 2001, reprinted in 79 Interpreter Releases 49, January 7, 2002.
[112] International Convention on the Elimination of Racial Discrimination (CERD), G.A. Res. 2106 (XX), U.N. GAOR, 20th Sess., Supp. (No. 14), U.N. Doc. A/RES/2106 (XX), entered into force January 4, 1969. The United States Ratified the CERD in 1994. Article 5 of the CERD calls on states to “guarantee the right of everyone without distinction as to race, colour, or nationality or ethnic origin, to equality before the law,” including “equal treatment before the tribunal and all other organs administering justice.”
[113] Memo from Kenneth L. Wainstein, Director of the Executive Office of United States Attorneys, “Final Report on Interview Project,” February 26, 2002.
[114] See “Profiling with Respect,” Christian Science Monitor, December 4, 2001; “In Sweeping Campus, U.S. Checks on Mideast Students,” New York Times, November 12, 2001.
[115] See Testimony of James Ziglar, Hearing before the Subcommittee on Immigration and Claims of the Committee on the Judiciary House of Representatives, INS’s March 2002 Notification of Approval of Change of Status for Pilot Training for Terrorist Hijackers Mohammed Atta and Marwan Al-Shehhi, March 19, 2002.
[116] Powers of the Attorney General to Authorize State or Local Law Enforcement Officers To Exercise Federal Immigration Enforcement Authority During a Mass Influx of Aliens, 67 Fed. Reg. 48354 (2002) (to be codified at 8 C.F.R. pt. 65)
[117] Police Can Now Be Drafted to Enforce Immigration Law,” Christian Science Monitor, August 19, 2002.
[118] Registration and Monitoring of Certain Nonimmigrants, 67 Fed. Reg. 40581 (2002) (to be codified at
8 C.F.R. pts. 214 and 264).
[119] Registration and Monitoring of Certain Nonimmigrants; Final Rule, 67 Fed. Reg. 52584 (2002) (to be codified at 8 C.F.R. pts. 214 and 264).
[120] Address Notification to be Filed with Designated Applications, 67 Fed. Reg. 48818 (2002) (to be codified at 8 C.F.R. pts. 103).
[121] Fareed Zakaria, “Delicate Balance: The Case for ‘Smart Profiling’ as a Weapon in the War on Terror” Newsweek, July 8, 2002.
[122] Ibid.
[123] Excerpt from Remarks of Attorney General John Ashcroft, September 13, 2001, available at http://www.usdoj.gov/crt/legalinfo/dojstatements.html.
[124] Remarks of President George W. Bush at the Islamic Center, September 17, 2001, available at http://www.usdoj.gov/crt/legalinfo/bushremarks.html.
[125] U.S. Department of Justice, Civil Rights Division, “Enforcement and Outreach Following the September 11 Attacks,” available at http://www.usdoj.gov/crt/legalinfo/discrimupdate.htm.
[126] Ibid.
[127] Ibid.
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