Civil Rights Groups Challenge Federal Anti-Terrorism Move by Alan B. Nichols A recent U.S. Department of Justice initiative would turn local police into vigilantes out to arrest immigrants on the slightest pretext, and if finding terrorists among the estimated 12 million illegal aliens in the United States is like looking for a needle in a haystack, all this "illegal" federal plan would do is create more hay. This is the argument being used by immigrant advocacy and civil rights groups in an intense nationwide campaign to stop the federal government from implementing policies toward immigrants and foreign visitors to the United States that these organizations say are illegal and would undermine public safety. As part of that campaign, a class-action lawsuit was filed on Dec. 17, 2003, in the Federal District Court of New York alleging that the FBI, Department of Justice (DOJ) and Department of Homeland Security (DHS) are unlawfully using a national crime database and local police to enforce federal immigration laws. Plaintiffs in National Council of La Raza v. Ashcroft include the American-Arab Anti-Discrimination Committee, Latin American Workers Project and the New York Immigration Coalition, as well as La Raza, a group that represents Hispanic Americans. "[Attorney General John] Ashcroft is not waiting on Congress, not waiting on the courts, but seizing power for himself under the guise of the war on terror," said Michael Wishnie, law professor at New York University and an attorney for the plaintiffs, in a New York Times article. Not so fast, say opponents: "The government is not going after legal immigrants, only known criminals and people who shouldnít be here," said Marti Dinerstein, president of Immigration Matters, a New York think tank, and a fellow with the Center for Immigration Studies. Cracking Down on Terrorism On June 6, 2002, Attorney General Ashcroft, citing the need to correct "vulnerabilities in our immigration system," announced the creation of the National Security Entry-Exit Registration System (NSEERS), the establishment of which, Ashcroft said, was within the bounds of current U.S. law, namely the 1996 amendments to the Immigration and Nationality Act. When NSEERS was implemented in 2002, it had two main components. First, all visitors from eight designated Muslim countries and those individuals flagged by the government for national security concernsówithout regard to national originówere photographed and fingerprinted at U.S. ports of entry. This program was eventually folded into the more comprehensive US-VISIT (U.S. Visitor and Immigrant Status Indicator Technology) system, which was officially launched at the beginning of this year and is expected to be fully operational by 2005. US-VISIT records the biometric information of foreign visitors (most European countries are excluded) at 115 international airports and 14 seaports in the United States. This information is then provided to U.S. law enforcement officials for screening. In the second component of NSEERS, males over the age of 18 from 25 mostly Middle Eastern countries who had suspected ties to terrorism and were already in the United States were required to register with immigration officials and periodically re-register. These requirements are often referred to as special registration. This re-registration requirement, however, was abruptly terminated in early December because DHS officials said they wanted to focus their efforts on implementing the new US-VISIT system. Male visitors subject to NSEERS are still required to do an exit interview with DHS and to leave the country on time at designated exit points. According to the June 2002 Ashcroft statement, "When aliens violate NSEERS rules, the government will place their photographs and biometric data in the NCIC database." NCIC, which stands for the National Crime and Information Center, is a database that includes tens of thousands of felons, fugitives and others wanted by the FBI. Since 9/11, it has been expanded to include information derived from overseas intelligence of terrorist operations. Local police routinely check the names of those they stop for traffic and other state and local offenses against NCIC. It is estimated that the database gets some 4 million hits a day. "When federal, state and local law enforcement officers encounter an alien of national security concern who has been listed on the NCIC for violating immigration law," Ashcroft declared, "federal law permits them to arrest that individual and transfer him to the custody of the [Department of Homeland Security]," which has since taken over the functions of the Immigration and Naturalization Service. Citing an April 2002 DOJ Office of Legal Counsel opinionówhich La Raza argues departs from traditional DOJ positions as well as other legal precedentsóthe attorney general said, "This narrow anti-terrorism mission of asking state and local police to arrest aliens who have violated [Immigration and Nationality Act] criminal provisions or civil provisions that render an alien deportable, and who are on the NCIC, is within the inherent authority of the states." The FBI has already entered the names of immigration violators into the NCIC. This information is collected by the Homeland Security Department and includes NSEERS violators as well as visa violators who have defied their final court orders to leave the country and have disappeared into the woodwork. These violators are called "absconders" or, more popularly, bail jumpers. The courts have released these individuals on bond, but they have failed to show up for their deportation hearings. Of the estimated 400,000 absconders, 80,000 are convicted felons, according to the New York Times. NCIC and Local Police Use In the La Raza court case, plaintiffs argue that immigrant violations, such as overstaying oneís visa, are civil not criminal matters and therefore an exclusive responsibility of the federal government. Also, entering civil immigration data in the NCIC is not congressionally authorized. Moreover, immigration records are notoriously inaccurate, and immigrantsómany of whom are in the process of changing their statusóare being criminalized, often without their knowledge. In addition, the La Raza plaintiffs say deputizing untrained local police officers to enforce immigration law can lead to increased racial profiling and endanger public safety by discouraging witnesses to come forth in ethnic communities where trust is essential to crime prevention. Finally, routine enforcement of federal immigration laws can overburden already strapped police forces, creating inviting conditions for opportunistic terrorists. In an issue brief, La Raza said the courts have consistently supported the argument that local police may not enforce federal immigration laws. Among cases cited is Gonzalez v. The City of Peoria, Ill., in which the court ruled that local police are precluded from enforcing the civil provisions of the Immigration and Nationality Act (INA), which include illegal employment or illegal presence in the United States. Moreover, dozens of police departments around the country have come out against the governmentís attempt to enlist local police in civil immigration law enforcement. Local police may legally enforce immigration laws but only under strict limits. The 1996 INA amendments authorize the DOJ to enter into agreements, called memorandums of understanding or MOUs, under which state and local participating officers receive vigorous training in the complexities of immigration law and procedures. To date, only Florida and Alabama are participating. Under the MOUs, a select number of state and local officers have been trained to conduct immigration-related activities under the close supervision of federal DHS agents. According to an attorney in the Alabama Department of Public Safety, who did not wish to be identified, 21 state highway troopers went through immigration law and enforcement procedures training that were so exacting that the officers welcomed graduation. As to the charge that involving state and local police in immigration law enforcement can promote racial profiling, the Alabama attorney said, "We have a written policy against racial profiling, and our MOU includes a very extensive community outreach program in which our department and the officers meet with communities throughout the state to explain what weíre doing and to allay any fears they may have." According to the attorney, federal supervisors maintain tight control over the program, and since November of last year, 20 immigration-related arrests have been made on people caught for speeding or similar offenses. He added, "The troopers tell me the program has made them better officers." "There is a l arge body of evidence that the information on immigrant status is maintained at a lower order of vigilance than criminal records," said Hussein Ibish, communications director for the American-Arab Anti-Discrimination Committee, referring to plaintiffsí charge that the immigration data in the NCIC database are inadequate, unreliable and just plain wrong in many instances. He called the sanctions against NSEERS violators a "proxy for racial profiling." Ibish pointed out that some 250,000 people were required to register under NSEERS. Of those, 30,000 were identified as having visa problems that were mostly trivial and resulted from procedural misunderstandings. Furthermore, Ibish said that this registration was a poor use of limited resources and an ineffective deterrent, adding that the program identified 150 actual criminals, and of those only seven were deported because of suspected links to terrorism. However, "one or more of those seven could have wreaked enormous havoc," countered Garrison Courtney, spokesman for the Immigration and Customs Enforcement arm of the DHS. "It took only three people to bomb the World Trade Center in 1993." Havoc aptly describes a system crying out for some sort of change. "Immigration law is very complicated because it isnít logical," said Joan Friedland, an attorney with the National Immigration Law Center, which protects the interests of low-income immigrants. "There are all kinds of ways you could be here lawfully, and the system could easily misclassify you." For example, "asylum applicants may have no documentation but are legal," Friedland explained. "Students in the process of changing their visa status might fall through the cracks for no fault of their own by a system that canít keep up with the paperwork." Friedland also said there are some countries such as Cuba and Vietnam that for political reasons generally wonít take back people who have been deported from the United States, but does that make them criminals? "There is no question the federal immigration system is flawed, but this is no way to fix it," she said. These sentiments were echoed by Dan Smulian of the New York Immigration Coalition: "If people have legitimate final orders for removal, there are many remedies open to them, but because of a flawed system, they may be prematurely criminalized." "Despite the fact that the government acknowledges that it has put absconders and NSEERS violators on the NCIC, we still donít know definitively what goes into the NCIC," added Muzaffar Chishti, director of the Migration Policy Institute at the New York University School of Law. "The suit should clarify thisÖ. The Bush administration has no authority, legal or otherwise, to put these peopleís names on the NCIC because they have not been issued criminal warrants." According to the DHS, however, people make it onto the NCIC database because they are known convicted felons or have ignored final deportation court orders. Such people have been granted plenty of time and every opportunity to reprocess their documents or appeal their court orders but have deliberately chosen to flout the law. "La Raza is trying to confuse the issue," said Dinerstein of the think tank Immigration Matters. "They are trying to blur the distinction between legal and illegal aliens. The issue is crucial to them because 60 percent of all illegal aliens in the U.S. are Hispanic. "Their real mission is to perpetuate the presence of illegals in this country. They donít want anyone deported. Legal immigrants are not at risk here. A Mexican caught in California for speeding has nothing to worry about if he is not on the NCIC," Dinerstein added. "There are an estimated 12 million illegal aliens living in this country and only a tiny percentage are on the NCIC. Basically, the U.S. government is saying, ëLetís go after the worst guys first.í" Toward a Solution Immigrant and civil rights groups fear the recent federal anti-terrorism initiative will have a potentially disastrous effect on aliens living in this country and will prevent others from coming to the United States. The groups suggest that if the DOJ succeeds in its plan to "deputize" every police officer in the country to enforce immigration laws, local communities would resemble the Wild West. However, others say it is far too early to jump to any conclusions. "I always marvel at how these groups can so confidently predict the outcome of a policy before it is implemented," said Paul Rosenzweig, policy analyst at the Heritage Foundation, who noted, "The immigration system is the last loop terrorists can slip through." There are fewer than 3,000 federal immigration law enforcement officers in the country and an estimated 12 million illegal aliens in the United States. Regulations pertaining to immigration constitute a bureaucratic labyrinth of policies. Resources at every level are stretched thin, and nearly everyone agrees that safeguarding the country while protecting peopleís rights is imperative. The overriding question is how. Ibish of the American-Arab Anti-Discrimination Committee summarized the challenge: "The conundrum of government is it has to face the issues fairly, responsibly and legally. Hopefully, our lawsuit will help point government in that direction." Alan B. Nichols is a contributing writer for The Washington Diplomat. Bushís Plan to Grant Temporary Status to Illegal Alien Workers Proves Contentious Depending on what side youíre on, President Bushís proposal to grant temporary legal status to millions of illegal alien workers in the United States for three years is either a boon or a boondoggle. If nothing else, the plan elevates the urgency to fix national immigration policy. Economic dislocation, drugs and crime, and porous borders that invite illegals into the United States by the millions each year are just several of the many issues facing national immigration policymakers. Proponents of strict immigration say the plan will actually aggravate these problems. Supporters, among them many Hispanic groups, say itís a good start. Announced in early January, the plan confers temporary legal status on undocumented workers for three years, renewable for an as-yet undermined number of times. The plan is aimed at solving a festering economic problem: Illegal workers, many from Mexico, are here because they take jobs that Americans donít wantóor so goes the argument. Employers and their illegal hires must show evidence of a ìmatchî before becoming eligible. Under the plan, these workers would be granted a temporary Social Security card, become eligible for a driverís license, and would pay taxes and accrue benefits that would extend to them once they return home after the program ends. The proposal would require workers to eventually return home permanently. Speaking on Jan. 13 in Monterrey, Mexico, on the eve of the Summit of the Americas, Mexican President Vicente Fox endorsed the proposal. ìWe totally agree and are aware that the proposal should be broadly discussed and analyzed, particularly in the Congress of the United States.î Fox said he hoped the plan would ìmature, and it should definitely be approved.î Critics, however, contend that Bushís announcement is merely a re-election tactic to woo Hispanic voters, and that the plan allows participants to step ahead of those undergoing the long legal process toward citizenship. But Bush stressed that the plan is neither an amnesty nor a path to citizenship. ì Granting amnesty encourages the violation of laws and perpetuates illegal immigration,î he said. ìCitizenship should not be the automatic reward for violating the laws of America.î The Hispanic group National Council of La Raza denounces the plan on the citizenship issue. (Some 70 percent of the illegal aliens in the United States are Hispanic.) ìThe details of the proposal Ö reveal that this is at best an empty promise, and at worst a political ploy,î said Council President Raul Yzaguirre in a Washington Times article. The fallout from the plan is already being felt. Angry Border Patrol agents say the plan, even though it was only just announced, is creating new waves of border crossings from Mexico, and many Republicans remain divided on the issue. Of course, after Congress gets through with it, the Bush plan in its entirety may be completely unrecognizable, although some aspects might be retained in new legislation. óAlan B. Nichols