Laws: January, 2003 - Number #1

The INS, formerly in the Department of Justice, was moved (along with 21 other federal agencies) to the new 170,000-employee Department of Homeland Security (www.dhs.gov). Within the DHS, enforcement functions will be separated from the provision of services. Enforcement will be in the 100,000-employee Bureau of Border Security headed by Asa Hutchinson, a former Republican congressman from Arkansas who now runs the Drug Enforcement Administration. Naturalization and other immigration services will be in the Bureau of Citizenship and Immigration Services, which will report to the deputy secretary of the DHS, ex-Navy Secretary Gordon R. England.

The U.S. 7th Circuit Court of Appeals in December 2002 upheld the right of the federal government to freeze the assets of a U.S.-based global Islamic charity that it believes is linked to terrorism without providing its evidence to defense lawyers. The court upheld a provision of the USA Patriot Act that allows the government to withhold information from defense lawyers.

Registration/Visas. Males 16 and older from Iran, Iraq, Libya, Sudan and Syria were required to register with the Immigration and Naturalization Service by December 16, 2002 to be fingerprinted and photographed. Some of those who registered were detained because they had overstayed their visas. Registration turned into a public relations fiasco for the INS, especially in southern California, where many of those who showed up to register were detained even though they were in the process of becoming immigrants.

A state of California employee who was an Iranian immigrant emerged from detention to talk of a "new McCarthyism against Muslims." Some Muslim leaders compared the registration-detention program to the internment of Japanese-origin residents during World War II, which led a half century later to an apology and compensation from the US government.

Those from 12 other nations -- Algeria, Bahrain, Eritrea, Lebanon, Morocco, North Korea, Oman, Qatar, Somalia, Tunisia, the United Arab Emirates and Yemen -- must register with the INS by January 10, 2003, and those from Saudi Arabia and Pakistan must register by February 21, 2003. Armenia was originally on the list, and was later dropped; all of the countries on the list except North Korea have predominantly Muslim populations.

US businesses and universities are complaining about delays in obtaining visas for employees, customers and students. The National Academies issued a joint statement that said "Ongoing research collaborations have been hampered.... Outstanding young scientists, engineers, and health researchers have been prevented from or delayed in entering this country, (and) important international conferences have been canceled or negatively impacted."

Under Visa Condor, males between the ages of 16 and 45 from 26 predominantly Islamic countries who want to come to the US must have their visa applications checked in Washington, DC. Instead of a week or two, it can take up to four months for visa approvals. Visa Mantis, which aims to prevent foreigners from coming to the US to study or purchase sensitive technical products, has been enforced with new vigor beginning in July 2002, and is slowing visa approvals for business travelers and students who may come in contact with sensitive US technology. US businesses want the US government to develop an visa review process that ensures a decision within a definite time period, such as 30 days.

Border/Removals. Some 4,896 foreigners under 18 were apprehended in the US in FY01, most along the Mexico-US border; most were from Central America, Mexico or China. The custody of these children will be moved from the INS to the Office of Refugee Resettlement within the U.S. Department of Health and Human Services, but the procedure for dealing with them remains the same-the government does not usually provide US-paid attorneys.

Some 50,000 to 70,000 unauthorized foreigners graduate from US high schools each year, and the Development, Relief and Education for Alien Minor Act (DREAM) would allow high school graduates in the US at least five years between the ages of 12 and 21 to become immigrants. As immigrants, they could attend colleges for in-state tuition rates, and qualify for financial aid. Since 1994, the INS has removed some 86,800 unauthorized Mexican children under 18 in the US without their parents, including 1,000 a month in 2001-02.

Americans adopted 20,000 foreign children in FY02, up from 6,500 in FY92. About half of those adopted are from China and Russia.

The US deports or removes almost 4,000 foreigners a week, most of whom are Mexicans convicted of committing crimes in the US. They are bussed to Mexico upon release from prison. Some convicted foreigners have been kept in prison indefinitely because their countries, such as Cuba, refuse to accept their return. Agreements have been negotiated with other countries, including Vietnam and Cambodia, so that criminals can be returned.

The 23-member Board of Immigration Appeals hears appeals of decisions made by 220 immigration judges who hear cases in which the INS seeks to deport foreigners. BIA has a backlog of 56,000 cases, often appeals from foreigners who applied for asylum in the US and are appealing denials of their applications. To clear the backlog by March 2003, the BIA usually assigns one judge to hear appeals, down from three-judge panels, and they often issue short summary decisions that uphold the immigration judge's decision.

BIA decisions can be appealed to the federal Court of Appeals, and many are, citing what advocates say are clear government errors that BIA judges make in their scramble to clear the backlog. The 9th Circuit expects 3,000 appeals of BIA decisions in 2002, and has issued an automatic stay of deportation to all foreigners who appeal. When the backlog is reduced, the BIA is to be reduced to 11 members, and Judge Stephen Reinhardt of the 9th Circuit said in an October 2001 speech: "Many observers fear that judges who have been most sympathetic to the plight of refugees and immigrants will be targeted for dismissal" to create the smaller BIA.

The U.S. Appeals Court for the 7th Circuit in December 2002 blocked the INS from deporting a Nigerian woman and her three-year old daughter so she could argue in court that her US-born daughter would be subjected to "torture," female genital mutilation, if she were forced to return to her native Nigeria. The court said that the Bureau of Immigration Appeals apparently had not considered the threat to the three-year old.

The INS is grappling with what to do about Somalis. Somalia has not had a functioning government recognized by the US since 1991, and some Somalis scheduled for removal to Somalia argue that they should not be returned there because there is no agreement on returns in place. About 2,700 Somalis around the US are scheduled for removal, and in a class-action suit they argue that they should be allowed to remain in the US because there is no Somali government in place to accept their returns.

US border counties are complaining that some Mexican hospitals send patients without insurance and no means to pay to the US for treatment, where the federal Emergency Medical Treatment and Active Labor Act mandates that US hospitals with emergency-room services treat anyone who presents themselves for care. The act does not say who is liable for the costs, which US hospitals put at $200 million a year. In many cases, the INS grants humanitarian waivers to allow the Mexican ambulances to enter the US with patients. The US-Mexico Border Counties Coalition said 77 hospitals along the border in California, Arizona, New Mexico and Texas face "a medical emergency" because of the cost of uncompensated care.

Along the Arizona-Mexican border, private groups have launched armed patrols aimed at stopping unauthorized migrants and smugglers. Immigrants' rights activists in December 2002 urged Arizona's incoming governor to outlaw so-called citizens' militias.

Polls. A summer 2002 poll found a gap between the elite and the public on immigration: 60 percent of the public, compared to 14 percent of the elite, considered immigration to be a "critical threat to the vital interests of the United States." The poll found that 70 percent of the public agreed that reducing illegal immigration should be a "very important" foreign-policy goal of the United States, compared to 22 percent of the elite.

When asked whether legal immigration should be reduced, kept the same, or increased, 55 percent of the public said it should be reduced and 27 percent said it should remain the same. In contrast, 18 percent of opinion leaders said immigration should be reduced, and 60 percent said it should remain the same. When asked about the biggest foreign policy problems facing the US, the public ranked illegal immigration sixth of 69 concerns, while elites ranked it twenty-sixth.

According to estimates based on the March 2002 Current Population Survey, there were 33 million foreign-born US residents in the US, up about three million since 2000. About 30 percent of the foreign-born adults had not finished high school.

A Pew Hispanic Center poll in Spring 2002 surveyed 2,929 self-identified Hispanics (64 percent of Mexican origin), 1,008 whites and 171 blacks, and reported that 90 percent of Hispanics agreed that learning English was important for economic mobility in the US. Some 31 percent of Hispanics, and 46 percent of Blacks, said that they or someone they knew was a victim of discrimination in the US; many said there was extensive Hispanic-against-Hispanic discrimination. Some 14 percent of Latinos said they had not been hired or promoted for a job because of their background, compared with 31 percent of blacks and eight percent of whites. (www.pewhispanic.org)

The poll found that 60 percent of Latinos, compared to 35 percent of non-Hispanic whites and 43 percent of Blacks, agreed with the statement: "I'd rather pay higher taxes and support a larger government that provides more services."

In the 2000 Census, almost half of the 35 million Hispanics in the US identified themselves as white, 42 percent said they were of "some other race," and two percent said they were Black. The three major South American countries with Blacks are Brazil, Colombia and Venezuela, a legacy of slavery. The US drew a sharp distinction between whites and Blacks in 1896, in Plessy v. Ferguson, where the US Supreme Court held that Homer Plessy, a white-complexioned Louisiana shoemaker, could not ride in the white section of a train because a single ancestor of his was black.

In Latin America, by contrast, there was much more mixing across racial lines. In Brazil, which has more people of African descent than any country in the world other than Nigeria, mixing between light- and dark-complexioned Indians, Europeans, Africans and mulattos was common and, in many areas, encouraged. Nevertheless , color matters, and white Latinos generally control the governments even in nations with dark-complexioned majorities.

One person observed: "In the US, if you are not white, you are Black. In Latin America, if you are not Black, you are white."

Some 31,000 immigrants are among the 1.4 million people in the US Armed Forces. Immigrants in the military can naturalize after three years; in FY02, some 2,435 immigrants in the military became naturalized US citizens.

A record 582,996 foreign students were enrolled at US colleges and universities in 2002-03. India is the leading place of origin for international students (66,836); followed by China (63,211); Korea (49,046); Japan (46,810); Taiwan (28,930); Canada (26,514); Mexico (12,518); Turkey (12,091); Indonesia (11,614); and Thailand (11,606).