A QUARTERLY UPDATE ON IMMIGRATION LAW FROM Meyner and Landis LLP
Fourth Quarter 2001

September 11, 2001

The American Immigration Lawyers Association, on September 17, released the following public statement concerning the events of September 11.

The American Immigration Lawyers Association stands with our fellow Americans of all races, religious, and national origins in expressing our shock and abhorrence at the horrific events of September 11, 2001. Our hearts go out to the families most directly impacted by these hideous acts. Our support and deep gratitude goes out to those heroic individuals who continue to search for possible survivors.

President Bush said that this was an attack on freedom. Our responsibility now is to remind our country and its citizens of the many rights we must preserve to maintain this freedom—freedom of movement; freedom from harassment and discrimination on the basis of ethnicity or race; freedom of speech; and freedom from unjustified search and seizure.

In time of crisis all of these freedoms are tested. We must continue to cherish and preserve these freedoms, enshrined in our Constitution and Bill of Rights 214 years ago this very month.

While we understand the fear and anger that grips many of our fellow citizens, indeed our nation, we strongly and unequivocally condemn the misguided scapegoating, harassment, and attacks on innocent Muslims and those of Mid-Eastern and South-Asian descent that have begun to happen in many places across the country. We are mindful that many of the direct victims of the attacks in New York and Washington were immigrants themselves, those who loved this nation of immigrants as much as any who were born here. Mayor Giuliani reminded us all last week that New York has always welcomed immigrants and that was one of his city’s strengths.

“Just as this horrendous act can destroy us from without, it can destroy us from within. Pearl Harbor led to internment camps of Japanese-Americans, and today there is a very real danger that this tragedy could result in prejudice, discrimination, and crimes of hate against Arab-Americans and others,” Congressman John Conyers stated.

“The lesson Oklahoma City taught us was the perpetrators of these acts of terror can be evil men of every race, nationality and religion as are the victims. We must ensure that these acts of terror do not slowly and subversively destroy the foundation of our democracy: a commitment to equal rights and equal protection,” he continued.

We support the efforts of our nation’s leaders to find and bring to justice the perpetrators of last week’s horrific acts of terrorism. We commend the U.S. Senate for its strong resolution, which states:

“The Senate declares that in the quest to identify, bring to justice, and punish the perpetrators and sponsors of the terrorist attacks on the United States on September 11, 2001, that the civil rights and civil liberties of all Americans, including Arab-Americans and American Muslims, should be protected; and condemns any acts of violence or discrimination against any Americans, including Arab-Americans and American Muslims.”

In this time of crisis and anguish, we must remember that our strength and our future reside in our unity as a nation, the diversity from which we draw our strength, and the democratic principles on which our country is based.

Umbrella Organization Issues Statement

One hundred forty (140) organizations joined together on September 20 to issue a statement “In Defense of Freedom” to alert the nation and our government that, while we take steps to reduce the risks of future terrorist attacks, we must maintain the freedoms and liberties that are the hallmark of our democracy.

Instead of rushing to enact laws, the coalition, of which AILA is a member, urges our government to proceed deliberately so as not to diminish liberty in the United States. The 10 points of this statement are especially important given the rash of hate crimes that have been reported nationwide.

In Defense of Freedom

1. On September 11, 2001, thousands of people lost their lives in a brutal assault on the American people and the American form of government. We mourn the loss of these innocent lives and insist that those who perpetrated these acts be held accountable.
2. This tragedy requires all Americans to examine carefully the steps our country may now take to reduce the risk of future terrorist attacks.
3. We need to consider proposals calmly and deliberately with a determination not to erode the liberties and freedoms that are at the core of the American way of life.
4. We need to ensure that actions by our government uphold the principles of a democratic society, accountable government and international law, and that all decisions are taken in a manner consistent with the Constitution.
5. We can, as we have in the past, in times of war and of peace, reconcile the requirements of security with the demands of liberty.
6. We should resist the temptation to enact proposals in the mistaken belief that anything that may be called anti-terrorist will necessarily provide greater security.
7. We should resist efforts to target people because of their race, religion, ethnic background or appearance, including immigrants in general, Arab Americans and Muslims.
8. We affirm the right of peaceful dissent, protected by the First Amendment, now, when it is most at risk.
9. We should applaud our political leaders in the days ahead who have the courage to say that our freedoms should not be limited.
10. We must have faith in our democratic system and our Constitution, and in our ability to protect, at the same time, both the freedom and the security of all Americans.

Anti-Terrorism Legislation Signed Into Law

On October 26, President Bush signed into law anti-terrorism legislation that includes fundamental changes to our immigration laws. The measure that arrived on the President’s desk for signature went through an unorthodox process. The final measure voted on the House floor was not the bill that passed unanimously out of the House Judiciary Committee (H.R. 2975), nor was it the bill that was substituted for it for the first floor vote (passing 337-79) as a result of pressure from the Bush Administration. Many House Members complained that they had not had a chance to even read the final bill (H.R. 3162) that he passed (by a vote of 357 to 66, with 9 abstentions) and sent on to the Senate.

In the Senate, the first vote on this legislation occurred after less than three hours of actual debate. The bill was never considered in the Senate Judiciary Committee and no report was issued explaining its provisions. That version (S. 1510) did not include the amendments (called the Managers’ Amendment) that Senate leaders had delicately finished negotiating just before the vote took place on October 11. Finally, the Senate took up the House-passed version of H.R. 3162 on October 27, passing it by a vote of 98-1. Because of this history, no conference report exists. In place of a conference report, Senators Edward Kennedy (D-MA) and Sam Brownback (R-KS) are drafting a memo to clarify the bill’s immigration provisions.

The new law’s immigration measures are less restrictive than the proposal the Administration earlier had presented to Congress. That proposal would have given the U.S. government sweeping, unchecked powers. It would have allowed indefinite detention, allowed the government to detain individuals without charging them for any crime or any immigration violation, and provided no meaningful opportunity for a hearing to determine the reason for an individual’s detention. Our Congressional allies, led by Representative John Conyers (D-MI) and Senators Patrick Leahy (D-VT), Edward Kennedy (D-MA), and Sam Brownback (R-KS) worked to ameliorate some of the worst provisions of the bill. Notwithstanding these efforts, the new law includes several troubling provisions. It casts such a broad net that it will allow for the detention and deportation of people engaging in innocent associational activity and Constitutionally protected speech, and permit the indefinite detention of immigrants and non-citizens who are not terrorists. AILA will be working with Congress to develop oversight hearings to monitor the impacts of the new law and develop appropriate strategies and responses.

Along with the provisions designed to respond to terrorist threats, the new law includes a section that AILA helped develop. This section will preserve immigration benefits for the families of victims of the terrorist attack and others impacted by the attack. It allows, for example, derivative family members to remain here legally, extends filing deadlines affected by the disaster and allows pending applications for permanent residence to be completed as if the sponsoring person was still alive. (A summary of the new law USA Patriot Act of 2001 is available on our website.)

Processing of Visas of Third Country Nationals in Mexico and Canada

The State Department has advised that the processing of visa applications from third country nationals who are not resident in the consular districts of the border posts is being severely curtailed. Posts in Canada are canceling those existing appointments for third country nationals that would be affected by new clearance requirements, but they are honoring other existing appointments.

DOS has still not released a list of countries whose nationals are affected by these requirements. It might be advisable to call the post to check on the appointment if a client was born in, or has resided in, a country that you think might be on the list and has a scheduled appointment in Canada or Mexico. Note, also, that it has been reported the female clients from some of these countries have been subjected to the additional clearances (some news reports had indicated that only males would be subject to the checks).

DOS has advised AILA that the post at Ciudad Juarez will honor existing appointments, even though it is not scheduling new appointments for third country nationals. It is not clear whether other posts also will honor existing appointments.

INS Reorganization May Reemerge As Top Issue

A September 15 hearing that the House Immigration Subcommittee had scheduled on USCIS reorganization was postponed due to the terrorist attacks, as were other hearings scheduled during that period. Representatives James Sensenbrenner (R-WI), chair of the House Judiciary Committee, and George Gekas (R-PA), chair of the House Immigration Subcommittee, have indicated that reorganization is a top priority, and Representative Sensenbrenner is drafting a reorganization bill.

The bill would create two new bureaus—one for enforcement and the other for adjudications. The Executive Office for Immigration Review (EOIR) would be supervised by a new agency, the Agency for Immigration Affairs (the “AIA”). AILA has concerns about this reorganization proposal for several reasons: The Associate Attorney General has little authority; the two bureaus each have their own legal counsels; and the EOIR’s operations are included within the AIA.

As drafted, this proposal does not meet the criteria AILA and our coalition partners have determined to be necessary for a successful reorganization of the INS: someone in charge with clout; separation, but coordination, of the two functions; and adequate funding.

Senators Kennedy (D-MA) and Brownback (R-KS) have been working on developing a bipartisan reorganization bill which meets the reorganization criteria noted above.

Status of Other Immigration Issues

Update on Section 245(i). Both the House and Senate passed different measures that would extend 245(i) on a limited basis. However, given the September 11 terrorist attack it is unclear when or if Congress will proceed further on this issue, as is the case with many other issues that earlier had topped the Congressional calendar.

U.S./Mexico Discussions. The recent terrorist attacks have delayed the development and consideration of legislation to address the immigration issues that are at the core of the talks between the United States and Mexico. However, the Administration and many members of Congress recognize that the need for reform still exists.

White House spokesperson Ari Fleischer said, “I know, in fact, that the President is still committed to honoring his promise to work with President Fox on the immigration changes to deal with Mexico and the guest-worker program and ways of making America welcome to immigrants. It’s so important at all times to remember the things that make America strong, and immigration is one of them.

Portions of this newsletter have been reprinted with permission from AILA
Copyright © 2001, American Immigration Lawyers Association

The material contained in this newsletter is for informational purposes and should not be considered legal advice.
For further information, please contact Anthony F. Siliato, Esq.
Meyner and Landis LLP, One Gateway Center, Suite 2500, Newark, NJ 07102
(973) 624-2800 -- asiliato@meyner.com
Website: www.meyner.com