Ashcroft’s War on Aliens

Much has changed in the world of immigration law and policy over the past thirteen months. Before September 11, 2001, Congress and the President were talking about renewing 245(i). There were proposals for updating and extending registry. A new amnesty program was on the table for discussion. Then tragedy struck. Nineteen madmen hijacked four airplanes. Buildings collapsed because airplanes had been smashed into them. Thousands of people died.

No one disputes the horror that took place on that terrible day. We all agree that the government is justified in trying to prevent a re-occurrence of terrorism. However, before we go to war, we should know who the enemy is. We should make sure that we target those who wish us harm. We should not make the innocent into additional victims.

Attorney General Ashcroft and other members of the current administration have used this terrible tragedy to declare war on aliens. All aliens – those here legally, those whose only offense is to have overstayed their visas, those who the government suspects may one day violate their visas.

Due process for aliens has been a victim of the attack. The Attorney General has extended the amount of time an alien may be detained prior the issuance of a custody or bond determination or a decision on whether a notice to appear or warrant of arrest. Longer detentions of unspecified duration in “emergency or other extraordinary circumstances” are also permitted. While the alien is being detained, attorney-client communications of inmates and other detainees may be monitored in cases where the Attorney General certifies that a reasonable suspicion exists that such communication may be used to facilitate acts of violence or terrorism.

Under the “Absconder Apprehension Initiative”, the INS has begun sending to the FBI the names of more than 300,000 aliens who remain in the U.S. despite prior deportation or removal orders. These names are now included in the National Crime Information Center database and are accessible to local law enforcement personnel. The DOJ is using federal agents, state and local terrorism task forces to track down, interrogate and potentially prosecute absconders.
Over 758 aliens have been arrested through this program.

In an additional effort to expand the army hunting down aliens, the DOJ has issued a legal opinion recognizing the inherent authority of states and localities to enforce civil violations of federal immigration laws. This reverses an earlier ruling by the DOJ.

Operation Tarmac sent federal agents to airports in search of undocumented aliens who were employed as food servers and cleaners. Tens of thousands of records were reviewed with the intention of finding information pointing to immigration violations. Many of the aliens arrested were in the process of legalizing their status. They were hard-working family people who were trying to make a living and support their families. Yet, they were hunted down, arrested and threatened with deportation because the government needed to put on a show.

In Operation Vanguard, the Social Security Administration joined forces with the INS to hunt down aliens whose social security information did not match that in the SSA records. Starting in 1998, the SSA had sent out thousands of “no-match” letters to employers. The INS had used the SSA database to check the employees of every meatpacking plant in Nebraska. Over 3,000 employees lost their jobs. INS planned to extend this operation to other states. However, immigration advocates criticism of the improper use of this information led the SSA to deny the INS further access to the data. Now the SSA is again cooperating with the INS. It intends to send out 750,000 “no-match” letters this year. That is seven times more than last year.

Last year, non-immigrants on student visas who committed the offense of going home to see their parents for the summer paid a high cost for this war on aliens. Many of these students’ re-admission to the U.S. were delayed without good cause. These students, who are in lawful status and have complied with all the requirements for their visas, missed the first several weeks of the semester.

In an absurd policy changes, Ashcroft reinstated a requirement for all non-citizens to file change of address notices with INS no less than once a year and within 10 days of any resident change. Aliens who are lawful permanent residents and who have no petitions or applications pending with the INS are required to adhere to this requirement. However, the INS recently admitted that it has received over 200,000 notices that it has not filed because it does not have the personnel to do so. It also admitted that it does not have any place to store these notices.

In a more malevolent manifestation of this war on aliens, the INS now requires aliens with a final order of deportation to report to INS within 30 days of that order. Failure to do so will result in the alien being ineligible for most forms of relief under the Immigration & Nationality Act. In other words, if the alien subsequently becomes eligible to obtain a green card, he won’t be able to do so if he hasn’t reported to INS. Of course, if he does report, he will be taken into custody and deported.

Prior to a deportation order becoming final, aliens have always had recourse to appeal the immigration judge’s or the INS’ decision to the Board of Immigration Appeals. That avenue of justice has now become less meaningful. Under new procedural reforms, the Board is being reduced from 23 members to 11. Most cases will no longer be reviewed by three-member panels. They will be reviewed by a single Board member who has the authority to affirm the prior decision without an opinion. That means that the Board member does not have to state what facts or law he considered or interpreted. The Board’s ability to review the factual determinations of the immigration judge will be severely limited. The changes have been justified as an attempt to decrease the backlog of cases on appeal. However, expedience should not be bought at the cost of justice.

This is not a complete list of all the negative repercussions suffered by aliens as a result of Ashcroft’s mis-aimed war. It is simply a call to attention. In a show of force, the DOJ is aiming its guns at the wrong target. My office and I, however, will continue to fight for what’s right. We support America’s war against terrorism but we recognize that hardworking & honest aliens are not the enemy. We acknowledge the tremendous contribution made by non-natives. We intend to work to insure that this country continues to grow richer through the contribution of those who bring their skills and talent to this land.