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The first peep uttered on immigration policy by the new Department of Homeland Security came in a March 18 press release stating that asylum-seekers from countries where al Qaeda has been active would be detained as a matter of policy. The DHS announcement blindsided the immigration bar, refugee advocacy groups, and congressional staffers alike, none of whom had been alerted to the possibility of such a statement. The department later explained that the policy applied only to future asylum-seekers and not those already in the country. By that time, however, any hopes that the new bureaucracy would be more predictable or transparent than its predecessor — the Justice Department-controlled Immigration and Naturalization Service — were vaporized. The initial announcement, of course, corresponded to the onset of the U.S. war against Iraq. The terrorist attacks on Sept. 11, 2001, carried out by men who had used the United States’ open borders to their advantage, prompted an overhaul of immigration enforcement. Likewise, the war with Iraq, linked as it is with the ongoing war against terrorism, is ushering in a new wave of immigration policy changes. “We looked at the Department of Homeland Security with some cautious optimism that they are creating something new and better than the old system, and we’re distressed that the first new policy to come down is something that seems so overbroad and sweeping and focused on a vulnerable subset of people,” says Gideon Aranoff, communications director for the Hebrew Immigrant Aid Society, a New York-based refugee resettlement organization. “The irony is that we are going to war with Iraq because of the persecution of the Iraqi citizens, and yet asylum-seekers from Iraq, just such people who are fleeing persecution, will be jailed if they come here,” he notes. Like many of the law enforcement tools initiated in the name of fighting terrorism, the latest changes in immigration enforcement policy have critics concerned that the balance of protecting national security and national ideals will be permanently thrown out of whack, damaging principles such as freedom, individual rights, and checks on government power. There is even the worry that the administration may be looking for ways to protect the nation by closing its borders. And it’s starting with the means of entry that are easiest to close. “The United States actually has a strong record of protecting refugees,” says Eleanor Acer, director of the Lawyers Committee for Human Rights’ asylum program. Creating a blanket policy of detaining asylum-seekers “is very much out of line with our ideals and our obligations under international law.” Targeting asylum-seekers, specifically, for detention as a national security precaution also strikes many as misdirected. Asylum-seekers, by definition, are turning to the United States in desperation. And those who would use asylum as a cover for nefarious purposes would face a lot more scrutiny than they would if they applied for a student visa, as many of the Sept. 11 hijackers did, immigration lawyers note. Yet asylum has been used by bad actors before. For example, Sheikh Omar Abdul Rahman, mastermind of the 1993 Twin Towers bombing, was an asylum applicant. Unlike foreign nationals who enter the United States as job applicants or students, asylum-seekers go through a battery of background and credibility tests. Immigration officials have long had the authority to detain asylum-seekers until their cases are adjudicated. Prior to the policy shift, immigration officials could, at their discretion, release asylum-seekers who had passed the various background checks. The policy “seems very wrongheaded,” says Doris Meissner, INS commissioner during the Clinton administration and now a senior fellow with the D.C.-based Migration Policy Institute. “Maybe it’s an excess of caution. Maybe it’s a search for every possible contingency,” she says. “Whatever it is, it’s not well thought through from the standpoint of who these people are and what the asylum process does.” The policy seems especially inscrutable given that asylum applicants were exempt from a policy the Justice Department enacted last October. The government said it would require male noncitizens from countries where al Qaeda has been active to register with the Justice Department and provide fingerprints and additional background information. “They recognized administratively that someone who had an asylum application had been subjected to an interview, had a security advisory opinion, and fingerprints. It would have been redundant to have them come in for special registration,” says Bill Frelick, director of the refugee program at Amnesty International USA. The Department of Homeland Security did not respond to repeated requests for comment. The Federal Bureau of Investigation declines comment. “We have a new paradigm of immigration and asylum, and the new paradigm is that there are people out there who want to kill us,” notes Joseph DiGenova, former U.S. attorney for the District of Columbia. “We have now adopted a policy where we are going to do two things: We are going over there to kill them, or we’re going to keep them out of the country,” he says. The vaguely worded March 18 announcement set off a minor panic among asylum applicants in the United States because it implied that all asylum-seekers from the selected countries would be detained. The next night, the DHS explained that only newly arriving asylum-seekers from the selected countries would be detained. Last year, about 600 asylum-seekers landed in the United States from the “selected countries.” So the new policy will be affecting a relatively small number of people. But almost 400,000 people living in the United States have asylum applications pending. On March 19, before the DHS clarification, between 20 and 30 representatives from nongovernmental organizations, congressional offices, and bar associations and lawyers groups convened a conference call to figure out the policy. “This is the canary in the coal mine in that this is the first of many steps the administration might take to stop people from arriving in the United States,” says Wendy Young, director of government relations and U.S. programs for the Women’s Commission for Refugee Women and Children. In the end, though, the DHS announcement may be just a clumsy first run out of the gates. “I was hoping,” says former INS Commissioner Meissner, “that one of the positive effects of having Immigration at Homeland Security is that they would be smarter about what is security and what is not security. But I must say, this gives me pause.”

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