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The abundance of Mexican, Chinese and Vietnamese restaurants that dot the streets of downtown Oakland reflect the city’s diverse immigrant culture. So it’s fitting that the American Civil Liberties Union’s Immigrants’ Rights Project is also based there. In a third floor office, a few blocks from Oakland’s Chinatown, Director Lucas Guttentag and a small team of attorneys have dedicated themselves to protecting the legal rights of non-citizens. Since Sept. 11, 2001, though, the organization has become a central player in the war on terrorism. Relying on the appellate skills it honed representing immigrant workers and refugees, the Immigrants’ Rights Project is taking a lead role in opposing some of the government’s most controversial anti-terrorism tactics. The group’s legal challenges to secret detentions, closed deportation hearings and the material witness statute have put it on the front line of a battle that it says stretches well beyond the boundaries of immigration law. And the effort has led the small group to beef up, nearly doubling to seven full-time attorneys and a handful of paralegals in the past year. “Oftentimes immigrants are the first victims, or first targets, and that’s been especially true since Sept. 11,” says Guttentag. As the government has scrambled to combat terrorism, he says, it has enacted a slew of discriminatory policies that treat immigrants, particularly those of Middle Eastern descent, as threats. Over the past year and a half, the Immigrants’ Rights Project has redirected its efforts and resources to addressing these issues. According to Guttentag, the organization’s principal focus is monitoring post-Sept. 11 policies and challenging the ones it feels don’t pass constitutional muster. The group has been operating in overdrive since the Sept. 11 terrorist attacks, analyzing new laws like the USA Patriot Act and policies such as the special registration call-ins conducted by the Immigration and Naturalization Service. It has printed and distributed tens of thousands of “know your rights” pamphlets in more than a half-dozen languages including Arabic, Farsi and Punjabi, and dispatched staff members to debates, public forums and conferences across the nation. But the most significant work has been in the courtroom. By Guttentag’s estimates, roughly 80 percent of the ACLU’s Sept. 11-related caseload deals with immigration. And the Immigrants’ Rights Project is directly involved in virtually all of this litigation. Attorneys from the project have filed a pair of lawsuits challenging the nearly 600 closed deportation hearings that began shortly after the Sept. 11 attacks. A Sixth Circuit U.S. Court of Appeals sided with the Immigrants’ Rights Project, ruling that the secret proceedings violated the First Amendment, while a Third Circuit U.S. Court of Appeals hearing the other case found the practice permissible. The group is also co-counsel on a Freedom of Information Act suit against the Department of Justice to find out the identities of approximately 1,200 people it says have been detained as a result of the war on terrorism. In a handful of other cases, the Immigrants’ Rights Project has opposed the government’s use of the material witness statute to detain people in its investigation of the Sept. 11 attacks, and other immigrant detentions it says are unlawful. Timothy Counts, a spokesman for the INS, maintains that all of the agency’s detentions have been lawful. “All those detained were in violation of immigration laws and were therefore subject to being detained and, if appropriate, removal from the country,” says Counts. In challenging some of these laws, the Immigrants’ Rights Project has bulked up its ranks. Last year the group hired three additional staff attorneys and a pair of paralegals, and it is currently looking to fill another attorney position. It has also signed on a full-time public educator to spearhead outreach efforts in immigrant communities. It’s a considerable evolution from the organization Guttentag founded 17 years ago. The ACLU tapped Guttentag, then a professor at Columbia Law School, to create a special immigrants’ rights project in 1986. For the first couple of years, Guttentag was the project’s sole member, operating out of New York. He gradually added more staff, and in 1996 opened the West Coast office out of which he now works. From the start, the project took a novel approach. While immigration advocacy organizations have traditionally focused on government lobbying, the Immigrants’ Rights Project crafted a technique of strategic litigation. The group identifies important issues affecting immigrant rights and takes cases to court that are likely to set precedents. “It’s a complicated, sometimes hit-and-miss procedure, where you really have to monitor the cases and seek to have the right amicus briefs or otherwise get involved in cases as they go up to the circuit courts,” says San Francisco immigration attorney Marc Van Der Hout, who has worked with Guttentag in past cases. “Lucas and the other attorneys have consistently selected some of the most important issues facing immigrants today and put efforts into litigating those issues with tremendous success,” he says. The strategy has yielded some big victories. In 1991, Guttentag and the Immigrants’ Rights Project were among the lead counsel in a class-action settlement that granted new asylum decisions to 250,000 Guatemalan and Salvadorean refugees. And in 2001, Guttentag’s back-to-back U.S. Supreme Court arguments in INS v. St. Cyr, 00-767, and Calcano-Martinez v. INS, 00-1011, resulted in a ruling that prevented the U.S. attorney general from deporting non-citizens without judicial review. According to Guttentag though, the stakes have never been higher. Recent policies towards non-citizens signify a dangerous trend for all Americans, he says. As an example, Guttentag points to the pair of so-called “enemy combatant” cases, in which the Immigrants’ Rights Project has filed amicus briefs: Hamdi v. Rumsfeld, _F.3d_, 2003 WL 60109 (4th Cir. 2003) and Padilla v. Bush, 233 F.Sup.2d 564 (S.D.N.Y 2002). The cases involve Jose Padilla, detained for his alleged plot to detonate a radioactive bomb in the United States, and Yaser Esam Hamdi, who was captured on the battlefield in Afghanistan. Both are U.S. citizens who have been held for months without being formally charged or given access to counsel. “The principle of detaining U.S. citizens without any judicial process takes us a huge step closer to Japanese-American internment than we were before,” says Guttentag. “Before 9-11 I think everybody would have said there’s no way that that could happen again today. And now in this climate, it’s much easier to understand how a government could take steps that would be the equivalent of Japanese-American internment. And how the public without sufficient vigilance can let it happen by default.”

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