Immigration law changes since 9-11

Saturday, September 10th, 2011
By: Jonathan MontagJ.D.

Probably no area of law saw more changes after 9-11 than immigration law in San Diego and around the country than immigration law, except maybe suitcase law. Here is a completely noncomprehensive list of changes we have seen in immigration law since 9-11:

1. The formation of the Department of Homeland Security and the division of the Immigration and Naturalization Service (INS).

In 2003, the Department of Homeland Security was formed — the last influence of Joseph Lieberman before he jumped the shark. The INS, taken from the Department of Justice, was moved to the new department, but split up into components – U.S. Citizenship and Immigration Services (for benefits), Immigration and Customs Enforcement, and Customs and Border Protection. The hope was splitting up INS would lead to a customer-centric benefits agency, USCIS, unsullied by enforcement mania. USCIS, under post 9-11 pressures, has been far from customer friendly, with its own rabid fraud investigators, and for a period, a “name check” process for benefits, not called for by statute or by law enforcement experts, which kept customers waiting for years for their visas or citizenship either because they once called the police about a cat stuck in a tree or had the name Mohammad.

2. The creation of the National Security Entry-Exit Registration System (NSEERS).

NSEERS created registration requirements for citizens of various Muslim countries while in the United States and requirements to specially register when entering the United States and departing the United States with a complex array of rules about who had to register when and where that became beyond the comprehension of border inspectors and other rational people. The program ended in April 2011, but no word has ever been provided about how the ending of the program will affect people who ran afoul of the system who had ways to remedy their mistakes when the program was in existence, but cannot now that it ended.

3. Exponential growth in filing fees for immigration services.

For example, in the year 2000 it cost $250 to file for naturalization. It now costs $680. USCIS is supposed to be a self-sustaining agency. Fees collected from customers fund its operations. Of course, a substantial amount of fee revenue funds security efforts independent of the benefits applied for.

4. Joint terrorism task forces and the ICE war on Muslims.

Muslims in America were ferreted out and placed in removal proceedings.  Muslims were denied visas for security reasons when security reasons were often a chimera. People were denied visas for being outspoken in criticism of U.S. foreign policy, for having the wrong friends, for misunderstandings on forms they filled out, or for being in the wrong place at the wrong time. Rules denying judicial review of discretionary determinations allowed the immigration agencies to act with impunity. In the prime of these activities, a public defender from a large Oklahoma city informed me that through its actions, the FBI forced Muslims out of the entire city.

5. Broad anti-terrorism laws.

Laws were passed categorizing organizations as terrorist organizations, allowing for the arrests and deportation of people associated with them, sometimes even when these organizations shared the political goals of the United States or, as far as some associated with them were concerned, were charitable or social in nature.

6. The purging of the Board of Immigration Appeals.

Under Attorney General Alberto Gonzales, the number of members of the BIA was reduced from 23 to 11, ironically, as part of a way to reduce backlogs, with the members being purged who tended to take the more “alien-friendly” positions in immigration litigation, including the inestimable Lori Rosenberg.

7. Widespread implementation of mandatory detention.

While mandatory detention statutes were enacted in 1997, many courts of appeals found them unconstitutional as depriving non-citizens of their procedural due process right to liberty. The Supreme Court, both unsympathetic to the concept of procedural due process and fooled by Justice Department statistics that misled about how long aliens would be detained while awaiting hearings, overruled appellate courts and allowed for mandatory detention. Now, ICE is the largest jailer in the country – detaining at least 33,000 on any day and approximately 400,000 a year – none as a criminal punishment. Large numbers, one can objectively say, will not be deported, but are being held anyway – that’s what mandatory means. ICE followed suit with arriving aliens, relegating most of them to mandatory detention, particularly those fleeing persecution. Only in the past couple of years has ICE backed off the policy of detaining asylum seekers, though agents are creeping back to a more restrictive attitude than the policy memos that direct them suggest.

8. The end of support for immigration reform.

Champions of immigration reform are fewer and fewer. Arizonans who supported immigration reform in the past, like Senator John McCain and Congressman Jeff Flake, have abandoned immigration law reform as the kiss of death to a political career. Pro-immigration conservatives, like former Michigan senator Spencer Abraham, have all but disappeared. Newspaper articles about hardships of non-citizens because of oppressive immigration laws that used to raise public concern about harsh immigration laws now receive thousands and thousands of comments praising the harsh consequences of the laws and expressing indifference to human suffering.

9. More and more immigration lawyers.

With harsher and harsher enforcement of harsher and harsher laws, people are faced with fewer immigration options. Yet it seems more and more lawyers are entering the field ready to give false hopes at high fees to scared and desperate people.

10. Electronic filing and electronic fee payment for submissions to the immigration courts and the BIA.

Just kidding. It hasn’t happened yet.  Posted September 10, 2011.


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