In 1996, in response to growing national concern about increased illegal immigration and terrorism on U.S. soil, Congress enacted legislation intended to curb unlawful migration into the United States and combat terrorism through prevention and removal mechanisms. In the aftermath of the September 11, 2001 terrorist attacks, faced with renewed calls for reform of our national security and immigration systems, the Administration issued regulations and Congress enacted new legislation, including the USA PATRIOT Act and the Border Security and Visa Entry Reform Act.
One of the American Jewish Committee's primary missions has always been the strengthening of democratic principles in the United States and around the world, and the agency's firm commitments to civil rights and to fair and generous immigration policies are grounded in that mission. Consistent with its concern for civil liberties and due process, including the right to counsel and federal judicial review in immigration proceedings, AJC has also long recognized the importance of protecting our national security.1
Against this backdrop, as part of its ongoing review of immigration policy, AJC recently undertook the consideration of various controversial provisions of the above described statutes and regulations, with the aim of adopting policy that addresses due process concerns as they apply specifically to immigrants.
Post September 11 Legislation and Regulations
Prior to the terrorist attacks of September 11, federal regulations provided that, upon the arrest of an alien by the Immigration and Naturalization Service (INS),2 the INS was required to make a determination within twenty-four hours as to whether or not there was a legal basis to continue holding the alien in custody.3 However, in an effort to address the national security concerns raised by the September 11 attacks, the Attorney General was provided with additional broad authority to detain aliens. For example, the USA PATRIOT Act provides the Attorney General with the authority to "certify" an alien as a suspected terrorist. The Attorney General then has seven days from the date an alien is taken into custody and certified as a suspected terrorist to release or charge him with an immigration or criminal violation. In addition, pursuant to a regulation issued by the Attorney General, aliens who have not been certified as suspected terrorists may be detained for an unspecified period of time, possibly indefinitely, "in the event of an emergency or other extraordinary circumstance." The Attorney General may also overrule an immigration judge's determination that an alien who is inadmissible or deportable due to "the commission of specified crimes or due to having engaged in terrorist activity" should be released from detention because the alien is not a flight risk or a danger to the community.4
Additionally, in the weeks and months after September 11, as part of the government's efforts to investigate the terrorist attacks, more than 1,000 aliens, both visitors and permanent residents, were detained in INS custody ostensibly because they could be linked to terrorist activity, with their names and locations kept secret. The Attorney General also directed immigration judges to close courtrooms to the public, including to families of detainees, in order to bar disclosure of information that may be related to law enforcement or national security. Pursuant to this directive, immigration judges are ordered to "give appropriate deference to the expertise of senior officials in law enforcement and national security agencies" as to whether "the disclosure of information will harm the national security or law enforcement interests of the United States."
Based on the foregoing, and in keeping with the American Jewish Committee's concern for civil liberties, support for fair and generous immigration policies, and commitment to the need to enhance national security, it is hereby resolved that AJC:
The 1996 Laws
- Opposes the detention of aliens for an unspecified period of time "in the event of an emergency or other extraordinary circumstance" without the opportunity for federal judicial review;5
- Opposes the continued detention of an alien after an immigration judge has determined that the alien poses no flight risk or danger to the community and has ordered the alien released, unless a federal judge has determined that such continued detention is appropriate;
- Supports allowing the government to refuse to disclose the names and locations of alien detainees it alleges are linked to terrorist activities, but only if the government's refusal is subject to federal judicial review; and
- Opposes the closing of immigration proceedings without a determination by the presiding immigration judge that there is a significant risk to national security and the availability of federal judicial review of such determination.
The 1996 laws expanded the grounds for deportation, subjecting most aliens, including long-term permanent residents, to mandatory detention and automatic deportation if they are convicted of a crime defined by immigration laws as an "aggravated felony." The 1996 laws also eliminated most of the authority that immigration judges previously held to consider the individual circumstances of immigrants deemed deportable for committing aggravated felonies, such as whether the immigrant has paid his debt to society and been rehabilitated. These laws also mandated that the INS hold in detention all noncitizens deemed deportable for "aggravated felonies" until the completion of their removal from the U.S., even when they have been found to pose no danger to society or risk of flight. In some instances, noncitizens deemed deportable pursuant to the 1996 laws have been held in detention indefinitely because their countries of origin will not repatriate them. In addition, the 1996 laws contain provisions intended to reduce or, in some instances, eliminate federal judicial review of individual removal orders and oversight over INS activities. For example, federal district courts no longer have jurisdiction over discretionary decisions of the Attorney General involving admissions, visa issuance, detention, deportation, and asylum adjudication.
Finally, the 1996 laws created new automatic bars to reentering the United States for people who have been unlawfully present in the country for six months or longer, whether or not they were living in the U.S. lawfully at one time. Under these provisions, aliens who try to enter the U.S. having previously been in the country unlawfully for more than 180 days but less than one year will be barred from reentering the U.S. for three years. Aliens who have been in the U.S. unlawfully for one year or more will be barred from reentering the U.S. for ten years. Such bars to reentry apply to aliens other than those admitted for lawful permanent residence. In some circumstances, subject to the Attorney General's sole discretion, an alien may be granted a waiver to the automatic bars to reentry "if it is established to the satisfaction of the Attorney General that the refusal of admission to such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such alien."
Based on the foregoing, and in further keeping with the American Jewish Committee's longstanding principles and values, it is hereby resolved that AJC:
- Reaffirms its opposition to the 1996 laws' extension of the definition of "aggravated felony" to include minor offenses and the inclusion of automatic removal provisions that preclude judicial discretion in deportation decisions concerning aliens convicted of "aggravated felonies";
- Reaffirms its opposition to the retroactive application of automatic removal provisions to those aliens who were found guilty of an "aggravated felony" prior to the enactment of the 1996 laws;
- Reaffirms its opposition to the mandatory detention of aliens deemed deportable for "aggravated felonies" pending their deportation;
- Opposes the indefinite detention of aliens who are unable to be repatriated to their country of origin without review by a federal judge to determine if such continued detention is appropriate; and
- Opposes automatic bars to reentry unless accompanied by a liberalization of the process by which such bars can be waived by the government.
- Supports the adoption of measures to improve and increase the information given to immigrants upon their arrival in the United States about their rights and responsibilities with regard to their visas, including information about the dire ramifications of overstaying their visas.
As adopted by the Board of Governors, May 7, 2003
1 In AJC's "Statement on Immigration," adopted December 9, 2002, AJC reaffirmed its commitment to fair and generous immigration policies, as fundamentally good for the United States and consistent with Jewish values. At the same time, AJC stated that it is committed more than ever to the need to increase the security of our nation's borders and to better incorporate newcomers into American society and culture. Even prior to issuing that statement, AJC advocated for "a reasonable balance between due process concerns and national security interests" during Congress' consideration of the 1996 omnibus antiterrorism law. (Testimony of Bruce M. Ramer on behalf of the American Jewish Committee on The Secret Evidence Repeal Act, February 10, 2000.)
2 Since the passage of the laws and regulations referred to herein, the newly created Department of Homeland Security (DHS) took control of immigration services and border security from the Department of Justice. However, the laws and regulations discussed herein remain in effect, and references to the INS are synonymous with the DHS.
3 After September 11, the normal period within which an alien in INS custody is to be charged or released was extended from twenty-four to forty-eight hours.
4 Immigration judges are administrative hearing officers, appointed by the Attorney General within the Department of Justice. They differ from federal or "Article Three" judges who are appointed for life by the President of the United States, pursuant to Article Three of the United States Constitution.
5 All references to federal judges or federal judicial review in this resolution refer to the judicial power set forth in Article Three of the United States Constitution. With respect to federal judicial review, the American Jewish Committee recognizes the appropriateness of the judiciary's adopting courtroom procedures necessary to protect national security.