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July 2003, Volume 10, Number 3

DHS: 9/11 Aftermath, Visas

The Department of Homeland Security's Bureau of Customs and Border Protection (BCBP), headed by commissioner Robert C. Bonner, brings together the Customs Service, USDA border inspectors, INS inspectors and 10,000 Border Patrol agents. DHS's Bureau of Immigration and Customs Enforcement (BICE) is responsible for interior enforcement, and the Bureau of Citizenship and Immigration Services (BCIS), headed by Eduardo Aguirre, processes applications for immigration benefits.

BCIS reported that the backlog of applications for work permits, permanent resident status and citizenship rose from 2.9 million in February 2001 to five million in March 2003.

Detention. The September 11 terrorist attacks resulted in a flurry of activities and legislation aimed at preventing more attacks. Courts have upheld some of the actions of the US Department of Justice and concluded that others violated the rights of the persons caught up in federal law enforcement activities. The chief author of the USA Patriot Act, the major source of authority for the activities in question, is 35-year old Viet Dinh, who came to the US as a refugee. In May 2003, he left the US Department of Justice to return to teach at Georgetown University law school.

Among the 762 foreigners held in "preventive detention" because they were of "special interest" in connection with the 9/11 terrorism investigation, 611 had one or more deportation hearings that were closed to the public, and 505 were deported; none was charged with terrorism. Of these foreigners, a third were Pakistanis, and most were held more than the usual 90 days the government has for deporting or releasing detainees. The US Supreme Court refused to resolve a dispute over whether the hearings for these foreigners could be held in secret: the US Court of Appeals for the 3rd Circuit ruled that secret hearings were unlawful, while the 6th Circuit ruled they were lawful.

DOJ's Inspector General released an assessment of DOJ enforcement activities in June 2003 that concluded that DOJ violated its own rules and detained foreigners too long. Foreigners detained after September 11 on charges that they violated immigration laws were not released until the FBI cleared them of any connections to terrorism, a process that often took three months or more.

One advocate said that the Inspector General's report demonstrated that "the war on terror quickly turned into a war on immigrants." Amnesty International charged that the US-led war on terror was curtailing human rights, undermining the rule of law and shielding governments from scrutiny. However, a federal appeals court in June 2003 ruled 2-1 that the federal government may keep secret the names of foreigners suspected of terrorism.

Registration. At the request of the US government, between December 2002 and April 2003, some 144,513 Muslim men from 25 Arab, African, Asian and Middle Eastern countries in the United States reported to local offices of the Bureau of Citizenship and Immigration Services for photographs, fingerprinting and interviews under a special registration program. BCIS said that 2,783 were temporarily detained and 99 remained in custody in June 2003, including 11 suspected terrorists. About 13,434 of those who registered face deportation because of visa violations, such as overstaying their visas.

Many of the men who registered said the process deepened fear and disillusionment among law-abiding Muslims. Immigration advocates said that government was "selectively enforcing" immigration laws.

In Fall 2001, the US Justice Department announced plans to interview 7,600 foreigners in the US by May 2002, and asked state and local police to cooperate. The General Accounting Office noted that, as of April 2003, only 3,200 people had been interviewed, and they provided no evidence to head off a feared future terrorist attacks. The "voluntary interviews" led to charges that Muslims in the US were being targeted, and many state and local police refused to conduct interviews.

Under the sanctuary movement in the 1980s and 1990s, cities declared themselves safe for immigrants, in part by promising that police and other local officials would not investigate the legal status of persons with whom they come in contact. New York City expressly forbade local officials from cooperating with federal immigration authorities, and defended its sanctuary policy after 1996 federal immigration laws made such policies unlawful. On May 30, 2003, New York City Mayor Michael Bloomberg revoked the sanctuary policy.

The US Supreme Court in a 5-to-4 decision in April 2003 upheld a provision of a 1996 immigration law that allows the detention of legal immigrants who have been convicted of aggravated felonies and sentenced to one year or more in prison, and thus are subject to removal.

Four federal appeals courts said that mandatory detention of such immigrants was unconstitutional; the Supreme Court disagreed, seemingly reversing a 2001 decision, Zadvydas v. Davis, in which the Court held that foreigners could not be detained indefinitely if their countries of origin would not take them back. However, in the 2003 decision, Chief Justice Rehnquist wrote that "against a backdrop of wholesale failure" by immigration authorities to deal with rising rates of crime by aliens, Congress had adequately demonstrated a need to imprison aliens awaiting deportation for past US crimes to keep them from committing new crimes.

Some 380,000 immigrants, including 80,000 "criminal alien absconders" convicted of US crimes, have been ordered out of the US, but BICE has no way of knowing whether or not they have left the US.

The US Eighth Circuit Court of Appeals in May 2003 ruled that a Somali convicted of a US crime may be deported, even though Somalia has no functioning government. A federal judge in Seattle previously ruled in a class-action suit that the US government could not deport foreigners to countries without a functioning government.

Visas. Issuing visas is the first screen in immigration enforcement; the second is border inspections and enforcement; the third is interior enforcement.

The US Department of State in May 2003 announced plans to conduct face-to-face interviews with almost everyone seeking a visa to enter the US beginning August 1, 2003— persons under 16 and over 60 are exempt. The US has over 200 visa-issuing embassies and consulates. They dealt with 8.3 million visa applications and approved 5.7 million visas in FY02. Under the new policy, the percentage of visa applicants who are interviewed will rise from less than 50 percent to over 90 percent. The new visa policy will not affect 27 countries participating in the visa waiver program or Canada; however, nationals of these visa-wavier countries will have to have high-tech passports.

The State Department has about 900 Foreign Service officers working overseas to deal with visa applications and 2,700 clerical staffers, most of whom are nationals of the country where they work. Consulates were told not to expect additional resources to do the visa interviews, which prompted US businesses and educational institutions to express concern that requiring interviews with all visa applicants could make it difficult for clients and students to get visas in a timely manner. They report that there is currently a two- to three-month wait for typical two- to three-minute visa interviews.

Under a US proposal, the world's 1.2 million sea men will be required to carry biometric identity cards that conform to new international standards. However, the US will still require seamen who wish to come ashore in the US to have visas if they are nationals of countries requiring visas.

Nauru, the world's smallest independent republic (eight square miles) is an island in the Pacific Ocean with 12,000 residents that has run out of the phosphate it used to export. Instead, Nauru has attracted offshore banks that the US accuses of money laundering, and offers economic citizenship for $15,000 or more.

The US alleges that Nauru is selling its last remaining asset, sovereignty. A March 2002 report concluded that "Nauru sells improperly controlled economic citizenships. Not only criminals purchase economic citizenships. Terrorists do as well." The US has threatened to invoke a provision of the USA Patriot Act requiring US banks not to deal with banks in countries supporting terrorism, the so-called "economic nuclear bomb."

Rachel L. Swarns, "More Than 13,000 May Face Deportation," New York Times, June 7, 2003. Eric Lichtblau, "U.S. Report Faults the Roundup of Illegal Immigrants After 9/11," New York Times, April 30, 2003. Linda Greenhouse, "U.S. Can Hold Immigrants Set to Be Deported, Supreme Court Says," New York Times, April 30, 2003. GAO. 2002. Border Security: Visa Process Should Be Strengthened as an Antiterrorism Tool. October.