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44th Street Notes


Sep 2002

We all recognize the difficulties facing our law enforcement agencies in protecting Americans from the elusive and ongoing threat of terrorism. But the legal community must look beyond the national trauma that resulted from the September 11 attacks and express its deep concern about the eroding rights of non-citizens since September 11.

The Department of Justice (largely through its Immigration and Naturalization Service) has established a means of holding foreign nationals indefinitely for committing only technical immigration violations or for no wrongdoing at all. These non-citizens, even those with American-born spouses and strong US roots, have been held incommunicado. Many are moved without notice to families or counsel, often to be housed with the general prison population. Their removal hearings have been closed and the Justice Department has refused to release information such as the names of those in detention, where they are being held, and what if any charges are being brought against them.

Despite all this activity, as of this writing, and nearly a year after the September 11 attacks, there has been no public indication that this dragnet has yielded even one criminal or terrorist charge. And the situation for those of Middle-Eastern origin is about to get worse.

Regulations promulgated after the September 11 attacks, and the practices of the INS, combine to put non-citizens in jeopardy. An immigration regulation promulgated shortly after September 11 allows the INS to hold a non-citizen in custody for up to 48 hours without bringing charges. This period may be extended for an unspecified reasonable additional time in the event of an emergency or other extraordinary circumstances. Many non-citizens arrested since September 11 were detained for weeks before they were charged with immigration violations.

Another post-September 11 regulation permits INS prosecuting attorneys to override the decision of an Immigration Judge to release a non-citizen on bond in any case in which the INS sets a bond of $10,000 or more (a common bond in immigration proceedings). There have also been cases of people being detained in the US for prolonged periods even after an Immigration Judge issued a final order of removal.

As a further tactic, the Justice Department has detained an unknown number of non-citizens as material witnesses. The Department need not charge these detainees with anything, and may hold them only in the belief they have information relating to the terror attacks. One federal judge has released such a detainee on the grounds the detention was unconstitutional, but the practice remains largely unchecked, though again there has been no public showing that these detainees indeed have material evidence to provide.

These policies, combined with the Justice Departments intense focus on Muslim and Middle Easterners in its terror investigations, have resulted in hundreds of people with substantial ties to this country being detained for long periods of time for minor immigration violations, which could even include failure to report a change of address.

The Association, through its Committee on Immigration and Nationality Law, has opposed many of these post-September 11 regulations. The heart of the problem, though, is that removal of a non-citizen from the US is essentially treated as a civil matter, not a criminal proceeding, under existing law. This is so even though ones banishment from the US could have far worse consequences than a criminal conviction. Someone banished from the US may well have to permanently leave behind family and all they had built in their life in the US, and return to an uncertain, potentially dangerous situation in his or her home country. For some, the period of detention will exceed felony prison terms.

As a consequence of the civil treatment given removal proceedings, the Sixth Amendment right to counsel in criminal proceedings does not automatically attach, and the Justice Department may promulgate rules which, in effect, result in the indefinite indention of non-citizens. Exacerbating this situation is a 1996 federal law that retroactively made long-term permanent residents removable for minor criminal convictions.

US courts have provided some hope for those facing removal proceedings. Just before September 11, the Supreme Court held that indefinite detention of individuals with final orders of removal was constitutionally suspect and reaffirmed that the Due Process Clause applies to all persons within the United States, including aliens, whether their presence here is lawful, unlawful, temporary or permanent. (See Zavdvydas v. Davis, 533 U.S. 678 2001). Even after September 11, several federal Courts of Appeal have declared unconstitutional a 1996 immigration statute, Section 236(c) (8 U.S.C. 1226(c)), that provides for the mandatory detention of non-citizens who have been convicted and served sentences for crimes defined as aggravated felonies. Aggravated felonies, a term of art under the Immigration and Nationality Act, could also include minor misdemeanors. Very recently, two federal district courts have struck down the governments blanket policy of barring the public and media from removal hearings of those detained in connection with September 11.

The Supreme Court is bound to ultimately address these issues in the current highly-charged atmosphere, and against the backdrop of the governments arguments in favor of detention and secrecy to aid its ongoing terror investigation. On the other hand, the erosion of due process rights, especially those of Muslim immigrants, is reminiscent of the curtailment of the rights of Japanese Americans during World War II. If a proposed regulation of the Justice Department takes effect, non-citizens from designated countries (one would assume at least those with significant Muslim populations) will be required to register, be fingerprinted and comply with complex reporting requirements. Failure to comply with these requirements, even inadvertently, would result in this individuals name being placed in a national criminal database and being subject to removal.

The legal community, in this nation of immigrants, should be vigilant in protecting the rights of non-citizens, which have become far more vulnerable in a post-September 11 world. We should not forget that our inclusiveness and our system of justice enabled this country to become what it is today.

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