Past and Present:  Safeguarding American Civil Liberties

Statement of Judith Golub
American Immigration Lawyers Association

May 21, 2003

Thank you Representative Honda for inviting me to testify today on the “Past and Present:  Safeguarding American Civil Liberties.”  My name is Judith E. Golub.  I am the Senior Director of Advocacy and Public Affairs at the American Immigration Lawyers Association.  AILA is the immigration bar association of more than 8,000 attorneys who practice immigration law throughout our nation. Founded in 1946, the association is a nonpartisan, nonprofit organization and is an affiliated organization of the American Bar Association (ABA).

AILA believes that immigration and immigrants have served this country well, and have helped make us the best and the brightest.  Immigrants are essential to our economy, our culture, and our sense of who we are.  We believed that before September 11, 2001, and we believe that today.

We also believe that we must live in a safe country. Equally important, however, we must live in a free country, the hallmark of which is a respect for civil liberties and a proud tradition of due process protections that have distinguished us from the rest of the world.  Since September 11, 2001, AILA has worked in support of measures that balance our need to enhance our nation’s security, respect for civil liberties, and our need to allow the continued flow of people and commerce.

It saddens me deeply to report to you today that we have not yet achieved that vitally important balance.  Instead, our government has implemented false solutions to real problems that have not made us safer.  Rather, these “solutions” have made immigrant communities feel besieged, have angered other nations, and have wasted our precious resources.

I was asked today to speak about some of these initiatives. Along with secret detentions, secret evidence, secret hearings, the monitoring lawyer/client conversations, and rulemaking prohibiting individual bond hearings for whole groups of people, the Bush Administration has initiated three other initiatives on which I wish to focus: 

• Special Registration:  AILA continues to believe that Special Registration, officially known as the National Security Entry-Exit Registration System (NSEERS), is a false solution to a real problem, and is deeply flawed both in its conception and implementation.  We urge the Administration, instead, to implement effective initiatives that address our security concerns by targeting terrorists, not innocent immigrants.

Under the call-in aspect of this program, people have been required to register based on national origin, race and religion, rather than on any specific intelligence information possessed by the government.  Instead of identifying terrorists, the Immigration and Naturalization Service (INS) (the agency that had jurisdiction over this program prior to its transfer to the Department of Homeland Security), in some local offices used the special registration procedure to detain people who are on the path to permanent residency.  To make matters worse, the program was ineffectively implemented.  Specifically, the Department of Justice (DOJ) failed to:  give field staff the resources and guidance necessary to do the job; effectively disseminate information about the program; implement uniform procedures in district offices; clarify registration requirements; and publicize the ports of departure and departure control requirements that, if not followed, could lead to someone being forever barred from returning to the U.S.  Furthermore, the DOJ detained people who had a claim to legal status.

AILA, along with our coalition partners, have registered our deep concerns about this program with both President Bush and the Department of Homeland Security.

• Authority to Enforce Immigration Laws:  The DOJ has revised a legal opinion (which the agency refuses to release) concluding that states and localities, as sovereign entities, have the inherent authority to enforce civil (along with criminal) violations of federal immigration laws.  Such an opinion conflicts with the long-standing legal tradition that immigration is a federal matter. This revised opinion will encourage state and local law enforcement officials, with little or no training and stretched resources, to attempt to enforce laws about which they have little understanding.  States and localities are ill served when their police attempt to enforce immigration laws.  In fact, Mayors from cities nationwide, including New York, Los Angeles, San Francisco, and Chicago, have opposed local police becoming immigration agents for the following reasons:

Local law enforcement agencies lack the training and experience to enforce federal immigration law: Federal immigration law is a complicated body of law that requires extensive training and expertise to properly enforce.  There are many different ways for people to be lawfully present in the United States, and the INS issues many different types of documents that evidence an individual’s status as lawfully present.  Local law enforcement officials have neither the training nor the expertise to determine who is allowed to be in the United States and who is not. 

Immigration enforcement by local police undermines community-based policing efforts: Community-based policing is one of the most powerful law enforcement tools available.  By developing strong ties with local communities, police departments are able to obtain valuable information that helps them fight crime.  The development of community-based policing has been widely recognized as an effective tool for keeping kids off drugs, combating gang violence, and reducing crime rates in neighborhoods around the country.

Immigrants who live in tightly knit communities often have information about the people around them that police want.  A local police department that begins to enforce immigration laws will lose the trust of the community it serves and protects. In communities where people are afraid to talk to local police, more crimes go unreported, fewer witnesses come forth, and people are less likely to report suspicious activity. Many immigrants come from countries where people are afraid of the police, and police nationwide have spent years building trust that will be destroyed by asking local police to do the job of a federal agency.

Asking local law enforcement agencies to enforce federal immigration law drains these agencies of scarce dollars and limited resources and leads to problems in enforcement:  Communities around the country struggle every year to provide enough money and resources to meet their law enforcement needs.  In many communities, response times to 911 calls are dangerously slow and police are no longer able to even investigate certain crimes.  Law enforcement officials in these communities need to spend more time enforcing laws that only they can enforce, and need more resources to protect the neighborhoods in which they live and work.  Cooperation agreements with the federal government have never involved federal dollars, and asking these local agencies to begin enforcing federal immigration law is a disservice to the communities they serve.

Past attempts by local law enforcement agencies to enforce immigration law have failed, and many local officials have opposed turning their police into immigration agents:  In 1997, local authorities in Chandler, Arizona conducted a series of roundups to help Border Patrol agents find violators of federal immigration laws.  Widespread complaints by local residents, including U.S. citizens and at least one local elected official who were stopped during the operations, led to an investigation by the Arizona Attorney General. The official report on the investigation concluded that police stopped Hispanics without probable cause, bullied women and children suspected of being illegal immigrants and made late-night entries into homes of suspected illegal immigrants, among other violations.  In 1999, the Chandler City Council unanimously approved a $400,000 settlement of a lawsuit stemming from police roles in the roundup.

• Bureau of Immigration Appeals:  For many immigrants, the Bureau of Immigration Appeals (BIA) serves as the court of last resort.  Since September 11, the Attorney General has systematically eviscerated the integrity of the appellate review process in the immigration courts through a series of initiatives that include: reducing the overall number of judges sitting on the Board; making one-judge panels the norm as opposed to the traditional three-judge panels, prohibiting an important kind of review; and imposing an untenable deadline for reducing the backlog of cases.  These structural changes have dramatically shortened the time available for decisions by each judge and have led to a flood of summary, one-line dismissals.   Particularly in light of the significant changes to immigration laws and policies since September 11, it is all the more critical to ensure meaningful review of what sometimes amount to life and death cases.

Along with our concerns about how these initiatives violate due process and civil liberties without making us safer, I also want to raise other concerns that arise from the new Department of Homeland Security.  I will limit my comments here largely to the new department and civil liberties, and focus on the right to counsel, civil rights within the new department, and the relationship between the DOJ and the DHS. 

• Right to Counsel: Asylees, businesspersons, relatives of U.S. citizens and other legal U.S. residents routinely are denied the right to legal counsel in immigration-related matters at our nation’s ports of entry.  People routinely also are being denied the right to counsel in the interior. 

For more than two decades preceding its recent demise, the INS maintained that individuals applying for entry to the U.S. had no right to counsel at the border unless taken into custody as the focus of a criminal investigation. This position was based on the historical premise that border inspectors lack the ultimate power to bar entry to the United States.  Previously, aliens deemed inadmissible by an inspecting officer could obtain further review of that decision in administrative proceedings, at which time they would be entitled to have counsel present.  However, the Illegal Immigration Reform and Immigrant Responsibility Act (IRAIRA) included an “expedited removal” provision which is an administrative mechanism for denying entry to aliens that the government alleges have made a material misrepresentation in the entry process or who lack required documentation for entry. Using this draconian procedure, an inspections officer can bar an alien from entering the United States for five years or life, depending on the particular grounds alleged in the case. The order of expedited removal is prepared and implemented by the inspecting officer. There are no avenues of administrative or judicial review available regarding orders of expedited removal. 

Given that the premise behind denying the right to counsel at border inspections no longer obtains (i.e. there is no subsequent administrative review at which counsel may appear), the policy of denying such representation should be revisited.  Decisions to deny entry under the expedited removal provisions carry serious consequences for the alien and basic notions of due process militate in favor of permitting the alien to have counsel present during this process.  We urge the Department of Homeland Security to changes its policies to allow the right to counsel at the border, and for Congress to step in if the DHS does not change its policies in this area.

Within the interior, there have been countless reports documenting the denial of counsel to individuals attempting to register pursuant to the call-in provisions of NSEERS.  Under the normal fact pattern, a question arises about the alien’s immigration status during the primary registration interview and the alien is referred for a second line of interrogation.  It is during the second interrogation that the right to counsel has been denied repeatedly.  A directive from headquarters on this issue would be appropriate to ensure agency compliance going forward and to reaffirm the Department’s commitment to ensuring that this valuable right is not diminished by disparate practices at the various offices.

• Civil Rights in the DHS: AILA was the first organization to call for a civil rights office within the DHS.  At the end of the day, lawmakers acknowledged the issue by creating a civil rights officer, but advocates did not achieve all of what we considered necessary. The civil rights officer (Daniel Sutherland has been named to this position) has no investigative authority.  We are unclear and uneasy about the role this officer will play within an agency that has expansive and unprecedented powers that can change people’s lives. AILA urges the Secretary of Homeland Security to make civil rights concerns an integral part of this agency.
  
  
• Concurrent Jurisdiction:  This issue is extremely important, and has not gotten the attention it deserves. In a February 28 rulemaking purporting to transfer immigration authorities to the DHS, the Attorney General asserted the DOJ’s concurrent authority to promulgate substantive rules in numerous areas.  The implications of this assertion of concurrent jurisdiction are mind-boggling, with the potential for the DOJ and DHS issuing conflicting regulations in a whole range of areas.  Such dual rulemaking could precipitate Cabinet-level institutional power struggles, paralyze the government’s ability to fairly administer immigration laws, and undermine the best efforts to fairly and consistently our administer immigration laws.

The most complete solution to this problem would be to reconstitute EOIR as an independent adjudicative body with no substantive rulemaking authority.  Unleashing EOIR from its DOJ moorings would eliminate concerns about conflicting interagency authority.  In addition to neutralizing concurrent jurisdiction concerns, this restructuring would further other important goals.  It would provide immigration adjudicators with the independence necessary to conduct fair and impartial hearings.  This change thereby would significantly enhance the perceived legitimacy of immigration decisions, a major concern under the present system.

Alternatively, DOJ must be limited to making procedural rules related to the operation of EOIR and compelled to abandon its asserted authority to make any substantive immigration rules. 

*****
 
In summary, the initiatives I have focused on today have not made us safer. What they have done is make many immigrants less free. Many immigrants believe, and I must concur with them, that our government no longer affords noncitizens due process rights and the protection of our Constitution.  Immigrant communities across our nation feel besieged and fearful of our government, simply because they are immigrants.

We have not learned all of the lessons that we should have from the past.  Congress needs to take the lead, step up to the plate, and affirm our proud traditions.  It is not too late.

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