Legislative Update, Volume 5, Number 14

September 28, 2001


Statement by the American Immigration Lawyers Association:

"We stand united in our grief and outrage in the aftermath of the horrendous events of September 11, 2001.  We mourn the loss of thousands of people who were doing nothing more than going about their daily lives.  Our hearts go out to the many who have died and their families. Our government can and will respond. Through this unspeakable, horrific attack, the perpetrators’ goal was to both kill people and kill our democratic way of life, the source of our strength as a people and nation.  We cannot let them succeed at this.

AILA supports all reasonable steps to improve our nation’s security and the safety of all Americans. These steps must take into account the great number of laws we now have in force that provide the INS with the power to detain and deport those who pose a threat to our nation’s security.  These laws can be used more effectively to safeguard our nation.

There is much the Congress and Administration can do to enhance our security through better access to databases, enhanced intelligence, and increased airport security.  We need real solutions to respond effectively to our security concerns. We will work hard with the Administration and with Congress to help craft these solutions.

We must be alert to reject proposals that do not enhance our security but do destroy that which has made our country the best in the world—freedoms and protections enshrined in our constitution that are fundamental to our democracy—due process, a presumption that people are innocent until proven guilty, the right to defend oneself and to confront the evidence against one, and the protection of judicial review.

The events of September 11 have impacted all of us personally and professionally.  Our professional agendas have been radically changed.  By necessity, we need to move to other issues.  This shift does not mean we have abandoned the many important issues, like the restoration of Section 245(i), earned adjustment for people who are here contributing to our country, a new temporary worker program, or an effective, efficient and fair Immigration and Naturalization Service. We will return to these issues as soon as possible."

Attorney General Asks Congress for Broad Powers to Fight Terrorism

In separate appearances before the House and Senate Judiciary committees, Attorney General John Ashcroft requested Congressional support for a proposal that the Administration has put forth in response to the terrorist attack on September 11.  The proposal has raised concerns for both Republicans and Democrats that the language is too broad and unnecessarily infringes on the rights of innocent people.  In defending the proposal, Ashcroft called the draft legislation a “careful, balanced long overdue improvement to our capacity to combat terrorism.”  Ashcroft said the proposal focused on the following five broad objectives:

  1. Strengthen and streamline the ability of our intelligence-gathering agencies to gather the information necessary to disrupt, weaken and eliminate the infrastructure of terrorist organizations.
  2. Make fighting terrorism a national priority in our criminal justice system.
  3. Enhance the authority of the Immigration and Naturalization Service to detain or remove suspected alien terrorists from within our borders.
  4. Law enforcement must be able to follow the money, in order to identify and neutralize terrorist networks.
  5. The ability for the President of the United States and the Department of Justice to provide swift emergency relief to the victims of terrorisms and their families.

The immigration provisions in the Administration’s proposal would expand the already broad definition of terrorist activity and terrorist organizations, create new grounds of inadmissibility for suspected terrorists and their families, further restrict judicial review and vest exclusive jurisdiction in the Federal Court for the District of Columbia, and subject immigrants to mandatory and indefinite detention if the Attorney General certifies he has “reason to believe” they “may commit, further, or facilitate” terrorist activity or “engage in any other activity that endangers the national security of the United States.”

On Monday, September 24, Attorney General Ashcroft faced tough questioning from members of the House Judiciary committee.  Representatives Barney Frank (D-MA), Howard Berman (D-CA), and Jerrold Nadler (D-NY) expressed their concern about the unchecked and unreviewable power of the Attorney General to indefinitely detain immigrants who are nothing more than suspects.  They also expressed concern that the proposal to broaden the already very expansive definition of terrorist activity could result in any crime of violence being classified as terrorist activity.  Representatives Bob Barr (R-GA), Steve Chabot (R-OH), and Chris Cannon (R-UT) also expressed concern that the language of the proposal was not limited to fighting terrorism and represented a broad expansion of power for the government in investigating other crimes.  Representative Cannon raised the notion of limiting these powers to times of emergency, or providing some kind of sunset clause that would enable Congress to review progress later on.

On Tuesday, September 25, Ashcroft faced similar bi-partisan concerns in the Senate Judiciary Committee.  Senators Edward Kennedy (D-MA) and Arlen Specter (R-PA) raised concerns that the language of the immigration provisions was too broad and the provisions were not subject to any judicial scrutiny.  They also questioned the Attorney General about why the provisions were necessary when current law requires the detention and deportation of any immigrant who the Attorney General has evidence has committed, conspired to commit, or even supported any terrorist activity.  Senator Dianne Feinstein (D-CA) expressed her desire for some kind of time limitation or sunset provision.

During both hearings, Attorney General Ashcroft responded that it was not his intention to have the power to indefinitely detain any immigrant.  He indicate that he believed that the power to certify aliens as potential terrorists applied only to those who are already in deportation proceedings, and that it “would be subject to judicial supervision and subject to the safeguards that would be provided in the judicial system.”  When questioned in the Senate, Ashcroft indicated his willingness to work with Congress to make sure the language of the statute reflected his intent.

The Attorney General has requested that Congress act immediately. While agreeing to the need to act swiftly, many in the House and Senate want to take the time to review the proposal and, as some have said, “get it right.” Representative James Sensenbrenner (R-WI), Chairman of the House Judiciary Committee, agreed to postpone the mark up of the legislation that was scheduled for the next day after Committee Members expressed concern with significant provisions in the proposal, but vowed to re-schedule the mark up for Wednesday or Thursday of next week.  Senator Patrick Leahy (D-VT), Chairman of the Senate Judiciary Committee, has scheduled a follow-up hearing with the Department of Justice on October 2.

New Regulations Issued on The Detention of Immigrants

The Department of Justice on September 20 issued new interim regulations regarding custody procedures.  This interim regulation went into effect on September 17.  Comments are due by November 19. The new regulations amend the Immigration and Naturalization Service’s rule on the period of time after an alien’s arrest within which the INS must make a determination whether the alien will be continued in custody or released on bond and whether to issue a notice to appear and warrant for arrest.  This new regulation provides that unless voluntary departure has been granted, the INS must make such determinations within 48 hours of arrest.  The rule also provides an exception to the 48-hour general rule for any case “arising during or in connection with an emergency or other extraordinary circumstance.”  For these situations, the INS must make the determinations as to custody or release and as to the issuance of the notice to appear and warrant for arrest within “an additional reasonable period of time.”

The current regulation requires INS to make these determinations within 24-hours of an alien’s arrest.  However, this 24-hour rule is not a statutory obligation and is not mandated by the Constitution.  In justifying the extension, the INS indicated that it might often require the additional time in order to establish identity, check domestic and foreign databases, and to contact the appropriate law enforcement agencies in the United States and abroad.

Lobbysits Statement on September 11 Terrorist Attacks

"The American Immigration Lawyers Association stands with Americans of all races, religions and national origins in expressing our shock and abhorrence at the horrific events of September 11, 2001.  Our hearts go out to the families most directly impacted by these hideous acts. Our support and deep gratitude goes out to those heroic individuals who continue to search for possible survivors.

President Bush said that this was an attack on freedom.  Our responsibility now is to remind our country and its citizens of the many rights we must preserve to maintain this freedom--freedom of movement, freedom from harassment and discrimination on the basis of ethnicity or race, freedom of speech and freedom from unjustified search and seizure. In times of crisis all of these freedoms are tested.  We must continue to cherish and preserve these freedoms, enshrined in our Constitution and Bill of Rights 214 years ago this very month.

While we understand the fear and anger that grips many of our fellow citizens, indeed our nation, we strongly and unequivocally condemn the misguided scapegoating, harassment and attacks on innocent Muslims and those of Mid-Eastern and South-Asian descent that have begun to happen in many places across the country.  We are mindful that many of the direct victims of the attacks in New York and Washington were immigrants themselves, those who loved this nation of immigrants as much as any who were born here.  Mayor Giuliani reminded us all last week that New York has always welcomed immigrants and that was one of his city's strengths.

As Congressman John Conyers stated last week, "Just as this horrendous act can destroy us from without, it can also destroy us from within.  Pearl Harbor led to internment camps of Japanese-Americans, and today there is a very real danger that this tragedy could result in prejudice, discrimination, and crimes of hate against Arab-Americans and others.  The lesson Oklahoma City taught us was the perpetrators of these acts of terror can be evil men of every race, nationality and religion as are the victims. We must ensure that these acts of terror do not slowly and subversively destroy the foundation of our democracy: a commitment to equal rights and equal protection."

We support the efforts of our nation's leaders to find and bring to justice the perpetrators of last week's horrific acts of terrorism.  We commend the U.S. Senate for its strong resolution, which states:  "The Senate declares that in the quest to identify, bring to justice, and punish the perpetrators and sponsors of the terrorist attacks on the United States on September 11, 2001, that the civil rights and civil liberties of all Americans, including Arab-Americans and American Muslims, should be protected; and condemns any acts of violence or discrimination against any Americans, including Arab-Americans and American Muslims."

In this time of crisis and anguish, we must remember that our strength and our future reside in our unity as a nation, the diversity from which we draw our strength, and the democratic principles on which our country is based."

In Defense of Freedom In A Time Of Crisis Umbrella Organization Issues Statement

140 organizations joined together to issue a statement “In Defense of Freedom” to alert the nation and our government that, while we take steps to reduce the risks of future terrorist attacks, we must maintain the freedoms and liberties that are the hallmark of our democracy.  Instead of rushing to enact laws, the coalition urges our government to proceed deliberately so as not to diminish liberty in the United States.  The ten points of this statement are especially important given the rash of hate crimes that have been reported nationwide. 

IN DEFENSE OF FREEDOM

1.   On September 11, 2001 thousands of people lost their lives in a brutal assault on the American people and the American form of government. We mourn the loss of these innocent lives and insist that those who perpetrated these acts be held accountable.

2.   This tragedy requires all Americans to examine carefully the steps our country may now take to reduce the risk of future terrorist attacks.

3.   We need to consider proposals calmly and deliberately with a determination not to erode the liberties and freedoms that are at the core of the American way of life.

4.   We need to ensure that actions by our government uphold the principles of a democratic society, accountable government and international law, and that all decisions are taken in a manner consistent with the Constitution.

5.   We can, as we have in the past, in times of war and of peace, reconcile the requirements of security with the demands of liberty.

6.   We should resist the temptation to enact proposals in the mistaken belief that anything that may be called anti-terrorist will necessarily provide greater security.

7.   We should resist efforts to target people because of their race, religion, ethnic background or appearance, including immigrants in general, Arab Americans and Muslims.

8.   We affirm the right of peaceful dissent, protected by the First Amendment, now, when it is most at risk.

9.   We should applaud our political leaders in the days ahead who have the courage to say that our freedoms should not be limited.

10. We must have faith in our democratic system and our Constitution, and in our ability to protect at the same time both the freedom and the security of all Americans.

Update on Section 245(i)

Both the House and Senate passed different measures that would extend Section 245(i) on a limited basis.  However, given the September 11 terrorist attack it is unclear when or if Congress will proceed further on this issue – as is the case with many other issues that earlier had topped the Congressional calendar.

The House, as did the Senate Judiciary Committee, earlier had passed a deeply flawed extension that would have required that the familial or employment relationship that is the basis for the petition or application existed on or before April 30 (the House version) or date of enactment (in the Senate version).  This requirement was to have been applied retroactively to filings made after January 14, 1998. The House bill would extend Section 245(i) for four months.  The Senate Judiciary Committee bill would have extended the measure until April 30, 2002.

The Senate in early September, passed a compromise measure to which House leadership also agreed.  As amended, any immigrant petitions filed before either April 30, 2002 or four months after regulations are issued (it is unclear whether it is the earlier or the later of these two dates) would form the basis for Section 245(i) eligibility.  However, there are important exceptions due to the new version of the requirement that is in the compromise:  those who file after April 30, 2001 must demonstrate that the “familial relationship existed before August 15, 2001, or the application for labor certification that is the basis of such petition for classification was filed before August 15, 2001.  Thus, for family cases, the family relationship must have existed before August 15, 2001.  This means that the Section 245(i) extension would not be applicable to marriage-based petitions where the marriage was not entered into before August 15, 2001.  For employment cases based on labor certifications, the labor certification application must have been filed by August 15, 2001.  This means that the Section 245(i) extension would not be applicable to new labor certification applications not filed before that date. Such a restriction essentially ends the extension of Section 245(i) for most business-based applications because most would not have filed an application for a program that did not exist.

Finally, the compromise bill deleted a provision that would have required that the familial or employment relationship existed retroactively, as of January 14, 1998 – the date of the last grandfathering of Section 245(i). The retroactive application would have effectively cancelled Section 245(i) eligibility for most of the 230,000 labor certifications that had been filed before the LIFE extension ended on April 30, 2001.

Commerce, Justice, State Appropriations Bill Funds INS; Includes Resolution Condemning Violence Against Arab-Americans and American Muslims

The Senate on September 13 passed its version of H.R. 2500, the FY 2002 Commerce, Justice, State Appropriations Bill by a vote of 97-0.  H.R. 2500 includes appropriations for the Immigration and Naturalization Service (INS), as well as the Executive Office of Immigration Review (EOIR). Members need to meet to work out differences between the recently passed Senate bill and the House bill.   One significant difference had been the extension of Section 245(i).  The Senate bill had included this extension – the House bill did not.  A Section 245(i) provision is not expected to survive conference.  Other provisions of the bill are:

The Committee Report accompanying the bill includes several other immigration-related provisions: $7.3 million to be used for alternatives to detention, $2.8 million for legal orientation programs, and the diversion of about $200 million from the Examination Fee Account to go to the Executive Office for Immigration Review (EOIR) and other programs.  The House-passed CSJ bill does not include any of these provisions. 

The Senate on September 13 amended the CSJ bill with a resolution introduced by Senator Tom Harkin (D-IA) that responds to the rash of hate crimes and reports of violence and intimidation experienced by members of the Arab, Muslim and South-Asian communities. The resolution “declares that in the quest to identify, bring to justice, and punish the perpetrators and sponsors of the terrorist attacks on the United States on September 11, 2001, that the civil rights and civil liberties of all Americans, including Arab-Americans and American Muslims, should be protected; and condemns any acts of violence or discrimination against any Americans, including Arab-Americans and American Muslims.”  The House of Representatives on September 14 passed H.Con. Res. 227, a measure identical to the Senate measure.

U.S. INS Reorganization May Reemerge As Top Issue

A September 15 hearing that the House Immigration Subcommittee had scheduled on INS reorganization was postponed due to the terrorist attacks – as were other hearings scheduled during that period. Both Representatives James Sensenbrenner (R-WI), chair of the House Judiciary Committee, and George Gekas (R-PA), chair of the House Immigration Subcommittee, have indicated that reorganization is a top priority, and Representative Sensenbrenner is drafting a reorganization bill.   After the attack, Attorney General Ashcroft reaffirmed the importance of reorganizing the INS, and INS Commissioner Ziglar reportedly has submitted an administrative reorganization plan to the Administration.

It is unclear when Representative Sensenbrenner will introduce his reorganization bill or if he will modify his proposal before introduction.  This plan would abolish the INS and create a new entity, the Agency for Immigration Affairs (AIA).  An Associate Attorney General for Immigration Affairs would head this agency.  The bill also would create two new bureaus, one for enforcement and the other for adjudications.  The Executive Office for Immigration Review (EOIR) would be supervised by the AIA.  AILA has concerns about this reorganization proposal for several reasons:  The Associate Attorney General has little authority, the two bureaus each have their own legal counsels, and the EOIR’s operations are included within the AIA.  As drafted, this proposal does not meet the criteria AILA and our coalition partners have determined to be necessary for a successful reorganization of the INS: someone in charge with clout, separation - but coordination - of the two functions, and adequate funding.

Senators Kennedy (D-MA) and Brownback (R-KS) have been working on developing a bipartisan reorganization bill which meets the reorganization criteria noted above.

Border Crossing Cards Set to Expire on September 30

Passed as part of the 1996 immigration laws, the Immigration and Naturalization Service and the State Department are required to begin using new machine-readable cards that contain a "biometric identifier" (in this case, a fingerprint) for Mexicans and Canadians who cross the U.S. border on a regular basis.  The cards were supposed to have been in use by Oct. 1, 1999, but the deadline was later moved back to Sept. 30, 2001.  However, the new system is still far from ready for implementation.  The State Department has asked Congress to extend the deadline, and it warned of a "significant detrimental effect on cross-border commerce" if an extension is not approved.

The House Immigration Subcommittee on June 27 approved by voice vote legislation (H.R. 2276) to extend the deadline for another year. The House Judiciary Committee had planned to mark up that legislation on Sept. 13, but that session, along with most other committee action on the Hill, was put off in the aftermath of the September 11 terrorist attacks.  An identical bill (S. 1400) has been introduced in the Senate, but it has yet to be acted on. As Chair of the House Judiciary Committee, Representative Sensenbrenner has indicated that he will not proceed on this measure.

Millions of border-crossing cards have been issued since 1917, allowing foreign travelers to enter the United States for up to 72 hours, usually to shop or visit relatives.  It has been estimated that unless there is an extension, an estimated two million Mexican nationals will be unable to travel to the U.S. using their old border crossing cards, resulting in major problems at our ports-of-entry and negative effects on the already struggling economy along the border.

The State Department has indicated that holders of these old border crossing cards for now can go to a U.S. consulate to obtain a sticker to continue to use the cards.  However, this is a stop-gap measure likely to create back-ups at the consulates and confusion at the border.

Congress Passes S Visa

Both the Senate (on September 13) and the House (on September 14) passed S. 1424, a permanent extension of the S visa, commonly called the “Snitch Visa.”  The measure awaits the President’s signature. This visa is made available to aliens who cooperate with the government in criminal prosecutions.  The Administration supports the visa as a tool to effectively prosecute crimes, especially those committed by terrorists.

The S visa first appeared in 1994 as a provision in the Violent Crime Reduction Act of 1994. Just prior to its permanent restoration, it had sunset on September 12, 2001.

Status of Other Immigration Issues:

U.S./Mexico Discussions:  The recent terrorist attacks have delayed the development and consideration of legislation to address the immigration issues that were at the core of the talks between the U.S. and Mexico.  However, the Administration and many members of Congress recognize that the need for reform still exists.  White House spokesperson, Ari Fleischer, said “I know, in fact, that the President is still committed to honoring his promise to work with President Fox on the immigration changes to deal with Mexico and the guest-worker program and ways of making America welcome to immigrants.  It's so important at all times to remember the things that make America strong, and immigration is one of them. We can be a nation of immigrants, but we can also be a nation of laws. And we have to be both.”

It is clear that we can have an immigration policy that makes sense for our economy and that protects our national security.  We can and should continue to address the important role that immigrants play in our society, and strive to develop immigration laws that reflect that we are a nation of immigrants and a nation of laws.  The lives of hundreds of immigrants were lost in the attack on the World Trade Center, and reports indicate that victims came from more than 60 different countries around the world.  AILA will continue to advocate for reform of our immigration laws, and expects that legislative efforts to implement the proposals brought up during the U.S./Mexico talks will reemerge.

Spousal Work Authorization:  The House of Representatives passed legislation that would provide work authorization for the spouses of E and L visa holders.  The bills, HR 2277 and HR 2278, are awaiting Senate action.  Although no significant opposition to the proposals is anticipated, in the wake of the September 11 attacks, it is unclear when the legislation will be placed on the Senate calendar.

Recently Introduced Legislation 

S. 1455

Introduced by Senator Snowe (R-ME), S. 1455 would amend title 49, United States Code, to regulate the training of aliens to operate jet-propelled aircraft, and for other purposes.

S.1452

Introduced by Senator Kennedy (D-MA) Senator Brownback (R-KS), Senator Leahy (D-VT) and Senator Cantwell (D-WA), S. 1452 would provide for electronic access by the Department of State and Immigration and Naturalization Service to certain information in the criminal history records of the Federal Bureau of Investigation to determine whether or not a visa applicant or applicant for admission has a criminal record.

S.1442

Introduced by Senator Miller (D-GA), S. 1442 would amend the Immigration and Nationality Act to impose a limitation on the wage that the Secretary of Labor may require an employer to pay an alien who is an H-2A nonimmigrant agricultural worker.

S.1424

Introduced by Kennedy (D-MA), S.1424 would amend the Immigration and Nationality Act to provide permanent authority for the admission of 'S' visa non-immigrants

S.1400

Introduced by Senator Kyle (R-AZ), S. 1400 would amend the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 to extend the deadline for aliens to present a border-crossing card that contains a biometric identifier matching the appropriate biometric characteristic of the alien.

H.R. 2928

Introduced by Representative Andrews (D-NJ), H. R. 2928 would amend the Immigration and Nationality Act to provide for the removal of aliens who aid or abet a terrorist organization or an individual who has conducted, is conducting, or is planning to conduct a terrorist activity.

H.R. 2897

Introduced by Representative Serrano (D-NY), H.R. 2897 would provide for the granting of posthumous citizenship to certain aliens lawfully admitted for permanent residence who died as a result of the hijackings of 4 commercial aircraft, the attacks on the World Trade Center, or the attack on the Pentagon, on September 11, 2001, and for other purposes.

Restrictionist Reactions

The American people have raised a multitude of questions following the September 11 terrorist attacks. Restrictionists, seizing the opportunity to put their cause at the forefront of the debate, have not been short on answers. The Federation for American Immigration Reform (FAIR) and other restrictionist organizations have gone on the offensive on immigration policy, in the name of national security. Restrictionists wish to answer the questions of how and why these terrible tragedies occurred with one simplistic answer: our immigration policy is to blame.  They seem to be focusing on business as usual, rather than targeting what would work to address our security concerns.

Hoping to capitalize on the public fear of terrorism, restrictionists have pronounced the immigration plans developed during the U.S./Mexico talks to be no longer viable.  “Migration talks are, for the time being, defunct,” Mr. Camarota of the restrictionist Center for Immigration Studies said in a September 19 Dallas Morning News article, “They’re off the table for now.”  However, White House spokesperson, Ari Fleischer, said “I know, in fact, that the President is still committed to honoring his promise to work with President Fox on the immigration changes to deal with Mexico and the guest-worker program and ways of making America welcome to immigrants.  It's so important at all times to remember the things that make America strong, and immigration is one of them. We can be a nation of immigrants, but we can also be a nation of laws. And we have to be both.”

Immigration proponents see possibilities for immigrants to play a new role in security reforms, arguing “legalization would bring aboveboard the millions of illegal immigrants who currently live hidden from U.S. authorities.”  A Mexican diplomat remarked to the Dallas Morning News "The attacks will rightly disrupt the rhythm of what we do. But the long-term need for a solution, a pact, remains.”

Closing

“It is easy at a time like this to see procedural rights as a luxury, and the public may be forgiving. But judges will not be so forgiving if serious violations are brought before them. Observing the rules now is the best way to ensure that investigators' efforts bear fruit. Even more important: Fair play is what separates law enforcement here from that in police states. If the rule of law is honored almost all of the time -- always except when the temptation to ignore it is very strong -- it isn't the rule of law at all.”

--Excerpted from a Washington Post editorial entitled “Dragnet,” September 27, 2001