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There was a small skirmish in the great war against terror late last month. It almost made the front page. “Illegal Aliens Can Be Held Indefinitely, Ashcroft Says,” wrote The New York Times(Page A14). “More Illegal Immigrants Can Be Held,” declared The Washington Post(a bit more prominently on Page A6). “Ashcroft says illegal immigrants can be held indefinitely,” reported the Los Angeles Times(losing ground on Page 26). John Ashcroft getting tough on the un-American — no surprise there. Since Sept. 11, our chief law enforcement officer has made a habit of lighting fire pits and launching hails of arrows that foreigners must brave to come to the United States. Then again . . . why is Ashcroft messing with immigrants at all these days? Since March, haven’t immigrants and other potential terrorists been Tom Ridge’s job? The Homeland Security Act abolished the Immigration and Naturalization Service, once part of the Department of Justice, in favor of a bevy of steely new acronyms fused into the Department of Homeland Security. On Feb. 28, the INS officially closed its doors, and on March 1, the BCIS, BTS, and BBS (Bureau of Citizenship and Immigration Services, Directorate for Border and Transportation Security, and Bureau of Border Security) opened theirs. The answer to what Ashcroft was doing in April, then, is one part regulatory small print (definitely), one part bureaucratic turf war (apparently), and one part Ashcroft outsmarting himself (hopefully). SAME AS THE OLD BOSS First, the small print. Buried in the Homeland Security Act is reference to a bureaucratic outpost called the Executive Office for Immigration Review (EOIR). The office is the home for all immigration judges at both the initial and appellate levels. It’s been around for decades. Until now, it was just a section within Justice, created by administrative regulation. Now the Homeland Security Act has cemented it into the U.S. Code. That’s all fine and good. But while the rest of the INS got kicked over to Tom Ridge, EOIR stayed put under Ashcroft — “subject to the direction and regulation of the Attorney General,” according to the act. Another provision notes that “determination and ruling by the Attorney General with respect to all questions of law shall be controlling.” Under the old regime, all the immigration people worked for Ashcroft. The prosecutors worked for Ashcroft. The first-tier judges worked for Ashcroft. The appeals judges — more formally, the Board of Immigration Appeals — worked for Ashcroft. Usually, a foreigner’s hopes ended with the appeals board. Sometimes, after the board had its say, the attorney general would take the case and reverse the board. Under the new law patching the immigration bureaucracy into the homeland security bureaucracy, that structure stays basically intact — with a twist. These days, the judges work for Ashcroft, and the prosecutors work for Ridge. That means that Ashcroft’s people can overrule Ridge’s people. And it means that Ashcroft can overrule Ridge. That’s a pretty powerful pressure point. In practice, it means that Ashcroft is still largely in charge of the country’s immigration policy. COMING TO AMERICA Which brings us back to the story that triggered last month’s headlines. On Oct. 29, 2002, a boat washed up on our shores, carrying David Joseph and 215 others from Haiti and the Dominican Republic. They were trying to enter the country illegally, and they got caught. Joseph then claimed the right to asylum. One of the legal questions was what to do with him while the government processed his asylum claim. In November (before the handoff to Ridge), the immigration judge said that Joseph should be released if he could post $2,500 as a bond. The INS appealed. In March (after the handoff), the Board of Immigration Appeals dismissed the appeal, agreeing with the man that he should be allowed to post bond. Ridge didn’t like that. So Ridge’s people (the prosecutors) asked Ashcroft to take another look at the decision. Ashcroft did. Then he reversed his own people (the judges). He decided, in part, that the government can detain all people “arriving under the circumstances presented by the October 29 influx.” Why? The war on terror, of course. We need to husband our resources and use the Coast Guard wisely, and one way to do this is to discourage illegal immigrants from coming here in the first place. Detention before deportation is discouraging. FOREIGN FOCUS This brings us to the turf battle. When President George W. Bush signed the law creating the Department of Homeland Security, he told the gathered crowd that the change will give the country some 170,000 government workers “who will wake up each morning with the overriding duty of protecting their fellow citizens.” But apparently, Ashcroft wasn’t prepared to step aside and turn final control of immigration over to the new department. In the war on terrorism, the attorney general still wanted to play the immigration card himself. Since Sept. 11, Ashcroft has seen immigration as a hole in America’s security dike. And he seems to think that only his fingers can stop the deluge. He has rounded up as “material witnesses” hundreds of people from Muslim lands. He’s made it harder for Muslims and Arabs to get visas to visit the United States. And for those already here, he has required them to register with the government (where scores have been arrested on the spot for flaws — sometimes the government’s fault — in their paperwork). In March, he announced that people applying for asylum from Iraq and 32 other countries would be automatically detained. He had federal agents conduct “voluntary” interviews with thousands of Iraqis living here. Just before the handoff to the Department of Homeland Security, he authorized FBI agents and U.S. marshals to enforce violations of immigration laws, a function previously reserved mainly for INS agents. And he has cut the number of judges on the Board of Immigration Appeals from 23 to 11, essentially forcing them to give more cursory review to foreigners’ claims. All this is evidence that the man can’t stop. He can’t stop viewing all immigrants with suspicion. He can’t stop clamping restrictions on immigration. And he can’t stop doing the clamping himself. And thanks to the Homeland Security Act, he doesn’t have to stop. WHOSE JUSTICE? And — moving on to my third point — that’s where Ashcroft might run into trouble. He might have overplayed his hand if he wants to make sure that in the perpetual war on terror, foreigners are suspiciously — indeed, microscopically — watched. So far, he hasn’t overplayed anything. Ashcroft might want to do the hatchet work himself, but he and Ridge probably see eye to eye on most things immigration. Take David Joseph — both wanted him behind bars. But, someday, maybe the attorney general and the secretary of homeland security may see things differently. If not this attorney and this secretary, then others. And when there is a divergence, it’s a fair guess that Ridge’s successor, not Ashcroft’s, is going to take the harder line. Why? It’s the nature of the homeland security business. As Bush said, it’s the job of those people to wake up every day thinking of how to protect the country. That makes them more likely to err on the side of being zealous. And attorneys general? They’re hardly slouches when it comes to being harsh — they are, after all, the country’s chief prosecutors. But, at the end of the day, they have to think about things besides security, such as individual rights and immigrant good will. So attorneys general are more likely than security secretaries to take a broad view of protecting the American way of life — a view that could help immigrants. This isn’t just idle speculation. In an April essay in the immigration newsletter Interpreter Releasesthat details how the transfer of immigration functions from Justice to Homeland Security is taking place, David Martin, a law professor at the University of Virginia and former INS general counsel, points out that in “a significant number” of cases where past attorneys general reviewed Board of Immigration Appeals decisions, the results “embody rulings favorable to the individual.” In one of those cases, In re N-J-B-,Janet Reno in 1997 stepped in to vacate a board decision that would have led to the deportation of tens of thousands of illegal aliens. What secretary of homeland security worth his salt would do that? Meaning that, in the long run, Ashcroft might have gotten the better of himself. He’s so keen to keep a sharp eye on foreigners that he simply won’t leave the job to anyone else. But he won’t have this job forever, and not all future attorneys general will see the benefits of automatically suspecting immigrants. They can take all the power that Ashcroft has zealously guarded and use it to keep the zealots in check. These days, that’s pretty slim consolation for immigrants. But down the line, it might be a lifesaver. Evan P. Schultz is associate opinion editor atLegal Times . His column, “Controversies & Cases,” appears regularly. He can be reached at [email protected].

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