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After the terrorist attacks of Sept. 11, 2001, many were quick to blame lax U.S. immigration laws. Because all 19 terrorists were foreigners, such scrutiny was predictable. In the name of national security, there were calls to halt immigration altogether, stop the issuance of foreign student visas, close the borders with Canada and Mexico and draft harsher immigration laws. Those calls have largely been ignored, but two years later, a new emphasis on national security has added obstacles to the immigration law landscape. Because U.S. national security depends not only on keeping terrorists out of the United States, but also on allowing in legitimate visitors and immigrants, the task of reforming immigration laws and policies to enhance security has never been easy. A halt to immigration would cripple the U.S. economy, violate U.S. international obligations and strand the relatives of U.S. citizens. Reform of immigration laws requires balancing the need for security with the need to keep the United States strong economically and politically. Key changes have come in three areas-reorganization, border enforcement and interior enforcement. Of the three, perhaps the biggest change has come through the reorganization of the federal immigration authorities. While immigration laws were formerly the responsibility of three cabinet-level agencies-the departments of Justice, Labor and State-they are now the province of four, with the birth of the Department of Homeland Security (DHS). DHS has been tasked with primary responsibility for enforcing immigration laws and providing immigration and citizenship services, while the other three departments retain supporting roles. Within DHS, the agency once known as the Immigration and Naturalization Service (INS) has been broken up into three separate agencies: U.S. Citizenship and Immigration Services, the Bureau of Customs and Border Protection and the Bureau of Immigration and Customs Enforcement. U.S. Citizenship and Immigration Services is mostly responsible for processing immigration and citizenship applications. The Bureau of Customs and Border Protection manages the borders and the Bureau of Immigration and Customs Enforcement enforces immigration laws inside the United States. In theory, breaking up the INS into separate agencies should eliminate the schizophrenia between enforcement and service responsibilities and allow the agencies to focus on their particular areas of expertise. Many practitioners report, however, that a heavy post-Sept. 11 emphasis on security and the complexity of dealing with four cabinet departments instead of three have created new problems. While the statistics do not correct for the normal transition problems expected in a major federal reorganization, the successor agencies to the INS are still earning poor marks on accuracy, customer service and speed of processing applications. Processing cases more efficiently and accurately can help national security, but the real key to security is information-sharing. Spurred by new legislation such as the Visa Entry Reform and Border Security Enhancement Act-which authorized additional immigration-related law enforcement personnel and required more integrated information systems-DHS has made some progress in information sharing. The new Terrorism Threat Integration Center merges counterterrorism data gathered by the government’s intelligence agencies and allows immigration authorities to access that information. When the center and other data-sharing programs are fully operational, immigration authorities should have access to the information needed to deny visas to potential terrorists, arrest any “sleeper cell” members and prevent the bureaucratic errors that allowed the Sept. 11 hijackers to obtain visas to come here. Tighten our borders A second major area of change has been in the tightening of border controls. Foreigners today find it much more difficult to come to the United States legally. The Department of State and DHS now share responsibility for issuing visas, and security checks have increased. This may have enhanced security at the margins, but slowdowns in visa-application processing have harmed economic security, causing people and businesses to alter their plans. Approximately one year ago, U.S. Attorney General John Ashcroft announced a new National Security Entry-Exit Registration System. The new registration system was the first phase in the implementation of a comprehensive entry-exit system. The registration system and its successors are meant to ensure that legitimate travelers pass through the border quickly, while potential terrorists are kept out. Lacking the technical capability to implement a comprehensive entry-exit system immediately, however, authorities chose first to target certain foreigners based on their country of origin. Under the special registration program, selected persons-primarily Middle Eastern males-were required to register with immigration authorities. Although no confirmed terrorists were caught through the program, thousands of immigrants who tried to comply with the law were detained, sometimes under extremely harsh conditions. Immigration advocates have decried the program as one that wastes resources and scares immigrants. The program now covers 25 countries whose citizens must report to federal immigration authorities when they enter and leave the United States, as well as at designated intervals while they are here. DHS collects their photographs, fingerprints and other personal information (including, in some cases, their credit card numbers). DHS plans to gather data eventually on all persons-including U.S. citizens-who enter and exit the United States. While some recent news reports have stated that the entry-exit was suspended, that is not correct. DHS has partially suspended the blanket reregistration requirement for immigrants; most of the program continues. Under stricter immigration rules, students and academics are finding it harder to study in the United States. In the past two years, foreign student visa applications have dropped significantly. With increased security checks, many foreign students arrived late to their fall classes, and some did not arrive at all. Foreign students are choosing to go elsewhere for their education, finding the new security environment in the United States to be too harsh. In the long run, this trend may hurt national security, as the United States loses top foreign students to the more hospitable climates of competitors such as Canada and Japan. Increased border controls and slowdowns in the processing of applications are also affecting American businesses, which are finding it harder to get their foreign employees into the United States. Even individuals claiming to be persecuted have found it harder to enter under the new rules. Despite international treaty obligations that compel America to accept refugees, security concerns have reduced refugee admissions to less than half of what they had been. While legal immigration has become more difficult, the increased emphasis on security has not halted the flow of illegal immigrants. The Mexican border in particular remains porous and perilous, as immigrants increasingly rely on smugglers and treks through the desert to get them to America. Harsher immigration laws and increased enforcement have not reduced the number of illegal immigrants in the United States; in fact, most evidence indicates that the numbers are rising. Interior enforcement To address security concerns surrounding the illegal immigrant population inside the United States, the federal government has increased its emphasis on the third major area of change: interior enforcement. As the recent criminal indictment of Wal-Mart illustrates, federal immigration authorities have chosen to use federal criminal laws to target employers who hire illegal aliens. After Sept. 11, immigrants and nonimmigrant foreigners have scrambled to comply with ever more complicated requirements, including demands that they report their change of address to DHS within 10 days or face deportation. Immigration authorities have detained more and more immigrants for violations that would not previously have resulted in jail time. For example, in April 2003, Ashcroft ordered all Haitian asylum-seekers detained indefinitely on the ground that mass immigration from Haiti is a threat to U.S. national security. Since the Sept. 11 attacks, immigration authorities have been unusually aggressive in seeking to deport immigrants. Hundreds of immigrants have been subjected to secret removal hearings, while others have been detained under conditions described as abusive by an internal DOJ inspector general report (available at www.usdoj.gov/oig/special/03-06/). Until the practice was halted by a nationwide injunction, immigration authorities were even deporting immigrants to Somalia, where there is no functioning government and where al-Queda has allegedly re-established a base of operations. Ali v. Ashcroft, 346 F.3d 873 (9th Cir. 2003). The United States has been exporting criminal aliens at the accelerated rate of one every seven minutes, in some cases destabilizing countries like Jamaica, Guyana and Honduras as Americanized criminals return to swell the ranks of street gangs. In addition to hiring more agents to handle the increased workload, federal immigration authorities are also asking state and local governments to take responsibility for enforcing federal immigration laws. Some communities have embraced this opportunity; others have rejected it, fearing a backlash as immigrants begin to fear police. Harsher security measures may have inadvertently dissuaded immigrants from helping the government in the war on terrorism. While immigration authorities have offered special “S” visas-which immigration lawyers refer to as “snitch” visas-to immigrants who provide information on terrorists, there have been few takers. Calls for immigrants to provide tips to law enforcement met with a similar weak response. Legal immigrants and naturalized citizens have expressed some reluctance to work for U.S. government agencies-where there are grave shortages of foreign language translators and analysts-for fear of discrimination. Immigration advocates and critics alike expected that the war on terror would spur changes in the immigration court system, and these predictions have proven accurate, although perhaps not entirely as expected. Less than six months after the terrorist attacks, Ashcroft made it known that national security demanded an end to the backlog of cases at the Board of Immigration Appeals, the administrative body responsible for immigration appeals. Although the backlog reduction plan came at the same time that Ashcroft reduced the number of board judges, the remaining judges have doubled their productivity through streamlining techniques. The increased board productivity has been misleading, however, because the reduction in cases at the Board of Immigration Appeals has increased the workload at the U.S. courts of appeals. See Marcia Coyle, “Immigration Appeals Surge,” NLJ, Oct. 27, 2003, at 1. There has been no discernable increase in national security by shifting the workload from the Board of Immigration Appeals to the federal courts. Secrecy policy Shortly after Sept. 11, Ashcroft implemented a blanket secrecy policy regarding certain immigration cases. Two conflicting circuit court decisions on the right of public access to these secret immigration hearings seemed headed for the U.S. Supreme Court until the DOJ failed to appeal one case, and the Supreme Court refused to hear the other. Detroit Free Press v. Ashcroft, 195 F. Supp. 2d 937 (E.D. Mich. 2002), aff’d, 303 F.3d 681 (6th Cir. 2002), reh’g en banc denied, No. 02-1437, 2003 U.S. App. Lexis 1278 (6th Cir. Jan. 22, 2003); North Jersey Media Group Inc. v. Ashcroft, 205 F. Supp. 2d 288 (D.N.J. 2002), rev’d, 308 F.3d 198 (3d Cir. 2002), cert. denied, 123 S. Ct. 2215 (2003). Another case on public access to information about the post-Sept. 11 immigration detainees remains pending before the Supreme Court, however, awaiting a decision on a petition for certiorari. Center for National Sec’y Studies v. Dep’t of Justice, 331 F.3d 918 (D.C. Cir. 2003), petition for cert. filed, 72 U.S.L.W. 1008 (U.S. Sept. 29, 2003) (No. 03-472). In a related development, on Nov. 4, the Supreme Court ordered the solicitor general to brief the issue of whether the court should hear the case of a Florida immigrant whose case was kept so secret that lower federal court dockets did not list it. Although this immigrant is not being held on any criminal charges-and is not enough of a security threat to be detained-the government insists that even the existence of his case must be kept secret. M.K.B. v. Warden, order granting leave to file petition for cert., 2003 U.S. Lexis 5444. Should the Supreme Court grant the petition for certiorari, it would decide whether the U.S. Constitution permits the government to keep secret from the public the existence of a person’s habeas corpus petition. Some welcome the actions enumerated in this article, while others question the effectiveness or desirability of certain policies. The harshest measures have not been implemented: Immigration visa quotas have not been reduced, foreign students can still study in the United States and the borders are still open to travelers willing to endure new security measures. President Bush continues to press for an amnesty or legalization program for Mexican workers, a measure that will reduce the drain on federal resources from enforcing immigration laws against low-threat workers. Two years later, security has been enhanced by some immigration measures, and perhaps harmed by others. Margaret D. Stock is an assistant professor in the department of law at the U.S. Military Academy, West Point, N.Y., where she teaches national security law, constitutional law and military law. The contents of this article express solely the views of the author. Stock is co-author of an upcoming report on the relationship between immigration and national security to be published by the Immigration Policy Center of the American Immigration Law Foundation.

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