U.S. Commission on Civil Rights
Briefing on Boundaries of Justice:
Immigration Policies Post-September 11th

October 12, 2001 

Executive Summary

The U.S. Commission on Civil Rights (Commission) held a public briefing on October 12, 2001, on United States immigration policies in the aftermath of recent terrorist activities. The briefing examined the civil rights implications of these attacks on the evolution of this nation�s immigration policies, practices, and laws. There were three panels of speakers. Panel one consisted of representatives from community organizations who provided accounts from their constituents; panel two consisted of legal experts and scholars; and panel three consisted of representatives from two federal agencies: the Immigration and Naturalization Service (INS) and the Department of Transportation (DOT).

Panelists discussed issues of harassment, discrimination, and other possible infringements of civil rights resulting from fears of recent terrorism. They discussed proposed civil rights implications of anti-terrorism legislation as well as examined the concerns about the federal government�s role in implementing proper security procedures at airports and protecting civil rights in the process. Panelists spoke about racial, ethnic, and religious profiling in times of heightened concern about national security and reviewed current and proposed immigration detention policies in the anti-terrorism legislation. They also made recommendations on how the Commission could be involved in combating discrimination in the wake of the terrorist attacks.

This briefing summary represents the views of the participants as of October 12, 2001. Subsequent developments since then are not reflected in this summary. For example, on October 26, the anti-terrorism legislation was signed into law as the U.S.A. Patriot Act. At the end of October 2000, INS  issued regulations broadening INS� ability to detain people and monitoring attorney-client communications of detainees. Additionally, on November 13, 2001, the President established a military tribunal to prosecute suspected terrorists.

SUMMARY OF TESTIMONY

PANEL ONE�COMMUNITY ORGANIZATIONS

• Mark Krikorian, Executive Director, Center for Immigration Studies

• Najeeba Syeed-Miller, Executive Director, Asian-Pacific American Dispute Resolution Center

• Timothy Edgar, Legislative Counsel, American Civil Liberties Union

• Charles Kamasaki, Senior Vice President, Office of Research, Advocacy and Legislation, National Council of La Raza

• James Zogby, President, Arab American Institute

Mark Krikorian, Executive Director, Center for Immigration Studies, explained how the United States Constitution, through the plenary power doctrine, grants Congress the power to establish a uniform naturalization and immigration system. According to Mr. Krikorian, controlling immigration is essential to maintaining national sovereignty. He stated, �In effect, foreign citizens, even if they are here illegally, enjoy the human rights endowed them by God, but remain here at our discretion, and the specifics of their due process rights are determined by Congress.�[1]

He discussed how the nation�s efforts to strengthen control over immigration in light of the September 11 terrorist attacks increase the focus on visa applicants from Islamic countries or from those who are of Middle Eastern origin. However, it is difficult under current immigration laws for the government to deny a visa application due to an applicant�s �beliefs, statements, or associations, if such beliefs, statements, or associations would be lawful within the United States.�[2]

Mr. Krikorian noted the historical use of �expedited exclusion� policies for false asylum claimants at airports. These policies provide immigration supervisors with the discretion to exclude an asylum claimant from being admitted to the United States if the claimant does not possess the appropriate documents. In addition, he predicted that INS will expedite implementing pilot programs to track the whereabouts of foreign students in the United States.

Najeeba Syeed-Miller, Executive Director, Asian-Pacific American Dispute Resolution Center, discussed the situation facing the South Asian community in the United States. According to Ms. Syeed-Miller, some people mistakenly view South Asians as Arabs or as a group linked to the September 11 attacks. As a result, South Asians have often been the target of hate-based incidents since the terrorist attacks.

Ms. Syeed-Miller explained the history of national immigration policies and their impact on the numbers of Asian American immigrants in the United States. She emphasized the significant implications of the internment of 120,000 Japanese Americans in the 1940s, since no evidence of subversive involvement was necessary to trigger the government�s internment of American citizens.

Ms. Syeed-Miller maintained that there is a need to continue to build coalitions between various groups that are often the victims of violent bias attacks. American universities offer viable opportunities for this cultural exchange. Because of their fears of reprisal attacks, however, many international students are leaving college campuses to return to their home countries. This trend will adversely affect our country because it limits the exposure of groups of people from outside our nation to our democratic values.

Timothy Edgar, Legislative Counsel, American Civil Liberties Union�Washington, D.C. office, reviewed the proposed anti-terrorism legislation and its effect on the civil rights and civil liberties of immigrants. Mr. Edgar outlined an effectiveness test for anti-terrorism initiatives. He proposed that measures used to address terrorism should provide maximum effectiveness, while simultaneously minimizing any adverse impact on civil rights and civil liberties. When applying this test to current anti-terrorism legislation, he said,

the most troubling provisions are measures that would allow for detention of immigrants on the basis of suspicion and lawful political associations for a potentially indefinite period of time; expand the ability of the government to conduct secret searches; minimize judicial supervision of federal telephone and Internet surveillance by law enforcement authorities.[3]

Mr. Edgar also discussed several constitutional problems with the detention and removal provisions of the proposed anti-terrorism legislation. These included: imprisoning individuals in INS facilities based solely on a certification from the U.S. attorney general and not on a substantive evidentiary requirement, detaining indefinitely immigrants who are not proven terrorists, and unfairly punishing immigrants for associating with groups that the government views as terrorist organizations.

Pending legislation allows noncitizens who are in violation of immigration status to be detained for a potentially indefinite period if their country of origin refuses to accept them. According to Mr. Edgar, this policy contradicts the U.S. Supreme Court�s decision in Zadvydas v. Davis,[4] which warned that constitutional constraints occur when immigrants are detained for an indefinite period of time.

Charles Kamasaki, Senior Vice President, Office of Research, Advocacy, and Legislation, National Council of LaRaza, discussed the proposed anti-terrorism legislation and suggested three principles to govern the debate over anti-terrorism policies. First, any anti-terrorism policy should be narrowly tailored to address actual security threats. Second, these policies should be carefully considered to prevent unintended results that adversely affect entire communities. Third, the September 11 attacks should not prevent our nation from implementing immigration and civil rights policies that are in the public�s interest.

James Zogby, President, Arab American Institute, informed the Commission that hate crimes and instances of bias against Arab and Muslim Americans are not new problems. He referred to the violent reaction toward Arab, Muslim, and Lebanese Americans following the Iranian hostage crisis, the Gulf War, the Oklahoma City bombing, and the explosion of a passenger airplane off Long Island. Moreover, after September 11, he said, �We had more than 300 reported [harassment complaints and threats] to our organization and the American-Arab  Anti-Discrimination Committee.�[5] Because of the history of the FBI�s relationship with the Arab and Muslim American communities, members of these communities, particularly recent immigrants, are hesitant to report incidents of harassment, which include threats, assaults, deaths, vandalism, profiling on airlines, termination of employment, and indiscriminate detentions and round-ups by the FBI.

Dr. Zogby also discussed the efforts of the administration and Congress to combat hate crimes and violations of civil liberties of Arab and Muslim Americans in the wake of the September 11 attacks.

PANEL TWO�LEGAL EXPERTS AND SCHOLARS

• David Harris, Professor of Law and Values, University of Toledo College of Law

• Karen Narasaki, Executive Director, National Asian Pacific American Legal Consortium.

• Jeanne Butterfield, Executive Director, American Immigration Lawyers Association

• Elisa Massimino, Director, Lawyers Committee for Human Rights Washington Office

David Harris, Professor of Law and Values, University of Toledo College of Law, focused his testimony on racial profiling. According to Professor Harris, the September 11 attacks shifted the pubic debate of racial profiling, but compelling reasons remain to caution against its use. He also alluded to the errors made by the United States when it reacted to past national security crises, such as the internment of Japanese Americans, the Palmer raids, the McCarthy hearings, and the recent controversies concerning national secrets, that had civil rights implications.

Professor Harris acknowledged that the terrorist attacks present a strong case justifying the practice of racial profiling because all the identified suspects belong to a particular ethnic or religious group. Nevertheless, Professor Harris argued that data establish that racial profiling is an ineffective law enforcement tool. Data consistently show �across the board� that racial profiling is �not good law enforcement,� he said.[6]

Professor Harris listed the following reasons to avoid racial profiling in the wake of the September 11 terrorist attacks:

• Dilution of Law Enforcement Resources. Racial profiling will dilute finite law enforcement resources that could have been expended to investigate more people. Most suspects would hold no interest to law enforcement agencies but for their appearance.

• Damaged Ability to Gather Intelligence from Affected Communities. Racial profiling treats members of an entire community as suspects and consequently hinders law enforcement�s efforts to gather intelligence from the profiled community. Unnecessarily treating people like suspects only alienates them from law enforcement efforts.[7]

Karen Narasaki, Executive Director, National Asian Pacific American Legal Consortium, testified that fear of Arabs and Muslims might lead America to betray its principles just as it did with the internment of Japanese Americans during World War II �for the crime of looking like the enemy.�[8] She stated that the injured, deceased, and heroes from the September 11 attacks came in all creeds and colors. Anti-immigrant groups� exploitation of fears of terrorism within the United States have begun �to push our country to close our borders, and attacks began as Americans began to seek personal retribution.�[9]

According to media reports, the FBI demanded that approximately 200 schools surrender financial and academic records of foreign students, generally of Arab and Middle Eastern descent. Many schools are complying without even providing notice to the students that their records had been surrendered.

Members of the immigrant community are most vulnerable to civil rights violations because of their unfamiliarity with the law, the language, and with the agencies that offer services to assist and protect them. Limited English proficiency can be a barrier to finding legal counsel, adequately communicating with counsel, and successfully navigating the justice system.

Ms. Narasaki stressed that Congress does not adequately fund the service side of the Immigration and Naturalization Service. She cited the backlog of citizenship and green card applications despite increases in fees charged to immigrants as an example. Consequently, waiting periods for obtaining citizenship and green cards are a �serious civil rights matter� due to the increased discriminatory nature of laws facing noncitizens.[10] Further, noncitizens are �subject to deportation for even the most minor of legal infractions.�[11] Ms. Narasaki cautioned that Congress should not add responsibilities to INS �until they can clean up what the INS is already unable to accomplish.�[12]

Ms. Narasaki stated that language is a troubling barrier for immigrants in our justice system. Yet, �[w]hen initially pressed for its plan, pursuant to President Clinton�s executive order asking all the federal agencies to service limited-English-proficient Americans, the INS�of all agencies�claimed that it did not come into contact with that many people who didn�t speak English.�[13]

She also explained the �discriminatory nature� of immigration laws.[14] For example, INS� failure to process citizenship applications in a timely manner raises civil rights issues because delays in citizen applications hold up the eligibility of prospective citizens for government safety net programs. Ms. Narasaki gave the example that an immigrant survivor of the September 11 attacks who became disabled would not be eligible for Medicaid or other federal assistance.

She also stated that the momentum to reform immigration systems was slowed by the September 11 attacks. She added, �The problem with distinctions based upon citizenship status is all too often that enforcement is based on racial profiling.�[15]

Jeanne Butterfield, Executive Director, American Immigration Lawyers Association (AILA), reported that the anti-terrorism legislation originally proposed by the administration would allow law enforcement officials to detain and deport people based on mere suspicion without presentation of evidence or an opportunity for a hearing.[16] Additionally, the original definition of the terms �terrorist activity� and �terrorism� in the proposed legislation would expose innocent people to broadened grounds of inadmissibility and deportability. Any new legislation should foster the balance of security and law enforcement needs with constitutional freedoms and civil liberties.

Ms. Butterfield cited three areas where her organization advocated improvements to the pending legislation:

• Elimination of No Hearing Deportations. AILA helped to eliminate from the proposed legislation the power to deport individuals based on suspicious terrorist activity without a hearing. Further, the government could not detain someone more than seven days without filing immigration charges.

• Imposition of a �Reasonable Grounds� Burden. In the proposed legislation, the attorney general must present �reasonable grounds� that the person falls within the definition of a �terrorist� before imposing mandatory detention. While AILA preferred a tougher standard, this standard was an improvement over earlier versions of the proposed legislation.

• Retention of Habeas Review. AILA also helped to preserve habeas review of the attorney general�s decision to detain an individual based on �terrorist activity.� Habeas review allows a detained individual the right to seek judicial review of the legality of the detention by the attorney general.

Ms. Butterfield also expressed concern over 148 people �swept up� and detained by the FBI for immigration violations without being charged.[17] These people �are in a never-never land where the rights that attached in a criminal justice system, to counsel, to probable cause . . . do not attach.�[18]

Elisa Massimino, Director, Lawyers Committee for Human Rights�Washington, D.C. office, said the Lawyers Committee issued a series of reports documenting the adverse impact of asylum laws on the refugee community. Following these reports, the Senate held a hearing in May 2001 to gather testimony about lengthy detentions, abusive treatment, and mistaken return of refugees. As a result, these hearings led to the introduction of the Refugee Protection Act six weeks before September 11. However, Ms. Massimino expressed concern over legislation introduced since September 11, which would still allow people to be detained for long periods without adequate access to the courts.

Ms. Massimino also reported that volunteer attorneys with the Lawyers Committee have not been allowed to see clients who are being held in detention facilities. She also relayed an incident where an immigration judge lectured volunteer attorneys that they should be prepared to prove not only that their clients are eligible for refugee protection but also that their clients are not terrorists.

Ms. Massimino concluded her remarks by relaying a story of an Afghan woman who was persecuted by the Taliban. When the woman fled to America without official travel documents, U.S. authorities interrogated her at the airport, shackled her to a bench, told her to remove her clothes, and placed her in a prison uniform. She fainted from the shock of the treatment she received, and she subsequently remained in jail for three months. While this incident occurred three years ago, Ms. Massimino wondered �what would happen to her today if she came here [after September 11].�[19]

PANEL THREE�GOVERNMENT OFFICIALS

• Owen Cooper, General Counsel, Immigration and Naturalization Service

• David Venturella, Deputy Assistant for Detention & Removal, Immigration and Naturalization Service

• Joseph Langlois, Director of Asylum Division, Immigration and Naturalization Service

• Samuel Podberesky, Assistant General Counsel, Aviation Enforcement & Proceedings, Department of Transportation

• Fanny Rivera, Assistant Administrator for Civil Rights, Federal Aviation Administration, Department of Transportation

Owen Cooper, General Counsel for the Immigration and Naturalization Service (INS), stated the INS is not only a law enforcement agency focusing on preventing improper entry into this country but also an agency that concentrates on helping people legally enter the United States. INS is working to dispel the impression that its institutional culture is attuned only to keeping people out of the United States. Mr. Cooper cited examples of the following policy developments: the INS issued guidelines that alleviate undue hardships resulting from the strict application of immigration laws; it proposed new regulations expanding the definition of �refugee� to include gender-based and domestic violence claims; it implemented a more open and accessible system for receiving claims related to torture; it implemented the Legal Immigration and Family Equity Act, which allows eligible persons to adjust their immigration status without leaving the country; and it implemented the Child Citizenship Act, which allows most foreign-born children adopted by U.S. citizens to automatically acquire U.S. citizenship. After these remarks, Mr. Cooper read into the record a statement by INS Commissioner James W. Ziglar.

Mr. Cooper also discussed the 148 people detained by INS in connection with the terrorist attacks and their rights to legal representation. The number of detainees changes hourly, but all INS detainees are held for violations of immigration laws. He added that the FBI may be concurrently investigating the detainee for possible involvement in terrorist activity. However, INS is only involved when a basis for an immigration violation exists. The 148 detainees are in custody in various places around the country in accordance to the normal process that applies to anyone detained for immigration violations.

Additionally, Mr. Cooper summarized the INS process for detention. As part of the normal INS procedures for detention, INS provides detainees with a referral list of free or low-cost legal services compiled by the Executive Office for Immigration Review. The law guarantees a right to counsel but not a right to government-funded counsel. He noted that INS, in the wake of September 11, issued a formal reminder to INS employees of the agency�s policy regarding the right to counsel.

When asked if INS investigates newspaper accounts of INS personnel preventing attorneys from seeing their clients, David Venturella, Deputy Assistant for Detention & Removal, INS, affirmed that his division is investigating complaints of noncompliance with detention standards. He also noted that the Department of Justice hired PricewaterhouseCoopers to conduct an independent review of INS detention facilities and measure compliance with the guidelines and standards of the INS, the Justice Department, and the American Correction Association.

Mr. Venturella said INS instituted a new program to provide all detainees with a �know-your-rights� presentation and supplied related pamphlets to detainees in different languages. He acknowledged that the new program is in its infancy and requires improvement.

Mr. Cooper also described the two separate systems for requesting asylum and adjudicating an asylum claim. When a person requests asylum, the applicant is first processed in the affirmative asylum program and meets with an INS adjudicator in a non-adversarial setting. If the applicant is not granted asylum and INS seeks deportation, the asylum claim is adjudicated in an adversarial proceeding before an immigration judge. In this second process, asylum seekers appear before an independent decisionmaker and possess a right to counsel. The applicants also may renew their asylum request in this proceeding. Joseph Langlois, Director of Asylum Division, INS, added that his division maintains statistics on asylum officers� approval rates and utilizes quality assurances trainers to monitor the asylum process. According to Mr. Cooper, another component of the Justice Department maintains statistics on asylum grants and denial rates of immigration judges.

Responding to questions about who pays for legal counsel for the detainees, Mr. Cooper said that some detainees provide for their own legal representation and that many organizations offer low-cost or no-cost legal services. Mr. Venturella conceded that he believed only a small percentage of detainees have legal representation.

Mr. Langlois explained that INS only provides interpreters for asylum seekers when asylum claims are adjudicated before an immigration law judge. Individuals participating in the affirmative asylum program are responsible for obtaining their own interpreters, but the government will provide an interpreter if the case moves to adjudication before an immigration judge. Further, Mr. Langlois clarified earlier testimony concerning the right to legal counsel. A detainee does not have a statutory right to counsel in an expedited removal proceeding, but the detainee holds a right to a consultant, who may be a lawyer.

Mr. Venturella acknowledged that INS missed its congressional reporting requirements and has not issued a report concerning the detention of asylum seekers since 1999. He claimed that INS lacked sufficient data to analyze and produce useful reports.

Responding to a question about extra scrutiny for either naturalization or family immigration petitions, Mr. Cooper asserted INS naturalized 45,000 people since September 11 and is continuing its attempts to process petitions promptly and efficiently. He acknowledged that enhanced security measures are causing backups at ports of entry. INS is ensuring that ports of entry remain open 24 hours a day.

Mr. Cooper commented on how INS does not always have access to the types of statistics that would be useful for an agency trying to monitor INS programs. For example, quantifying the number of asylum seekers in detention is difficult because INS does not have full access to information on individuals processed in the immigration courts. One commissioner suggested that INS contact the National Academy of Sciences, which is developing its procedures to measure and detect discrimination, and that INS be proactive and implement its own set of testers for discrimination by asylum officers or inspectors similar to tests used to detect housing discrimination. Mr. Venturella said his program is in the process of developing a strategic plan to evaluate detention and removal proceedings, ensuring they are humane and secure.

Samuel Podberesky, Assistant General Counsel for Aviation Enforcement & Proceedings, Department of Transportation (DOT), read a letter sent by Secretary of Transportation Norman Mineta. In light of the strengthened security after the terrorist attacks, DOT took steps to ensure full compliance with civil rights laws and investigate all discrimination complaints. Mr. Podberesky added that it is the primary focus of his office to monitor civil rights compliance by the airlines and investigate security-related discrimination complaints.

Fanny Rivera, Assistant Administrator for Civil Rights, Federal Aviation Administration (FAA), DOT, said FAA issued a news release in 1998 that stated the FAA�s airline screening system would fully comply with civil rights laws. On September 21, 2001, DOT cautioned airlines and airport enforcement authorities not to target passengers based on their race. Ms. Rivera acknowledged that FAA implemented new security measures for airlines since the terrorist attacks, but airlines still remain responsible for implementing these new measures in a nondiscriminatory manner. FAA also encouraged airlines to communicate to their employees the illegality of discriminating against airline passengers based on race, ethnicity, or religion.

Responding to a question about whether FAA utilizes guidelines or procedures permitting removal of airline passengers based on ethnicity, national origin, or Middle Eastern or Muslim appearance, Mr. Podberesky stated no guidelines exist that allow removal of an airline passenger based solely on race, nationality, or ethnic origin. However, a federal statute permits removal of passengers if airline personnel believe the passenger represents a safety or security risk to the airplane. Nonetheless, the airline cannot remove the person solely based on race under this statute. Mr. Podberesky added if an airline used race as a factor for removal, such action would raise serious concerns that would be dealt with on a case-by-case basis.

Ms. Rivera stated her office only investigates complaints filed with her office and does not examine unfiled complaints reported in the media. Mr. Podberesky added that DOT occasionally contacts airlines regarding incidents documented in the media that appear to be particularly egregious. However, it is difficult to pursue enforcement action without an official complaint.

Mr. Podberesky noted that FAA has no authority to enforce civil rights laws against airlines and explained that his office at DOT is charged with investigating civil rights complaints against airlines. Ms. Rivera�s office at FAA establishes airplane security requirements.

Mr. Podberesky said that when determining what constitutes unlawful discrimination, he uses the �but for� test. Pilots must consider two statutes when removing passengers from airplanes: (1) 49 U.S.C. � 449.02, which gives airlines authority to remove anybody from the airplane they believe is a safety risk to the aircraft; and (2) 49 U.S.C. � 401.27, which prohibits airlines from discriminating based on race, ethnic origin, or religion.

According to Mr. Podberesky, DOT is aware of the Commission�s May 2001 Michigan Advisory Committee report finding, among other things, the computer-assisted passenger screening (CAPS) program discriminates by profiling people. However, he disagreed with the findings in the report with respect to the CAPS program. He also noted that the Justice Department reviewed the CAPS program in 1997 and found it to be nondiscriminatory.

Mr. Podberesky explained that DOT maintains data on all complaints and keeps investigation files for each complaint.

 CONCLUSIONS

SUGGESTIONS FROM PANEL MEMBERS

Panel members made several suggestions to the Commission, including the following:

• The Commission should examine the impact of the September 11 attacks on the civil rights of the Arab American community.

• The Commission should work with legal, civil rights, and private philanthropic organizations to ensure access to legal counsel for those whose civil rights have been violated.

• The Commission should urge President Bush and Attorney General Ashcroft to take proactive interim steps to address racial profiling.

• The Commission should dissuade the U.S. Department of Justice from pursuing proposed collaborations between INS and local law enforcement agencies in conducting immigration law enforcement operations.

• The Commission should consider ways to improve accountability in law enforcement.

• The Commission should submit comments to federal agencies and other governmental entities that may be issuing proposed regulations related to immigration law enforcement, in order to ensure that civil rights concerns are adequately addressed.

• The federal government should examine broad policy questions to improve the naturalization and visa process to deter terrorism and not affect commerce and family reunification.

• Detention proceedings should place the burden of proof on the federal government to justify an individual�s detention.

• The Commission should use its advisory committees in the states and the District of Columbia to convene briefings on a local level to address issues that disproportionately affect immigrant communities.

• The Commission should provide guidance on how hate crimes should be appropriately investigated. This may instill more confidence in members of the public who wish to report hate crimes.

• The Commission should systematically collect data regarding the interaction of members of the immigrant community with INS.

• The Commission should monitor whether INS is in compliance with its agreement with the American Bar Association addressing detainee access to counsel.

• The Commission should check the status of persons held by INS on immigration charges and alleged to be involved with the terrorist attacks to see if these individuals have access to counsel and family members who are able to post bond.

• The Commission should monitor INS� detention and parole of asylum seekers.

• The Commission should monitor the INS publication of data on the detention of asylum seekers.

• The Commission should educate the American public about racial profiling and the anti-terrorism legislation�s definition of a �terrorist� and a �terrorist act.�

• The Commission should monitor the implementation of the anti-terrorism legislation, particularly with respect to detention of members of the immigrant community. There is a concern that the powers granted to law enforcement officials may leave room for excess and abuse.

• The Commission should monitor the compliance of any reporting requirements included in the anti-terrorism legislation.