Laws: April, 2003 - Number #1

The Immigration and Naturalization Service went out of business on March 1, 2003. Its functions were moved to the Department of Homeland Security and divided in three parts: (1)Immigration enforcement was placed in the DHS Directorate for Border and Transportation Security (BTS) in the Bureau of Immigration and Customs Enforcement (ICE) headed by Michael Garcia.(www.dhs.gov)

The (2) Bureau of Citizenship and Immigration Services, headed by Eduardo Aguirre, will provide naturalization services and immigration benefits for non-citizens. President Bush requested a $41 billion budget for the 170,000-employee DHS in FY04, up from $38 billion; the federal budget for FY03 is $2.23 trillion.

The (3) Department of Justice retains authority over the Executive Office for Immigration Review (immigration judges). Just before INS moved out of the Department of Justice, plans to shorten tourist visas from the current six months to 30 days were dropped because of complaints from the tourism industry.

US businesses in 2003 began to complain openly that tighter visa-issuing policies were hurting business. More time is required for getting visas approved, and there are many uncertainties about whether a visa will be granted to a foreigner that a US business wants admitted. After arrival, if the foreigner plans to stay in the US for any length of time, he/she must obtain a Social Security or Tax-Reporting Number, and immigration officials must screen applicants for such numbers. During the wait, foreigners cannot obtain driver's licenses.

Beginning on March 1, 2003, the 500,000 persons a day arriving at US airports, seaports and land borders were screened for radiological materials in an effort to detect the smuggling of nuclear material that could be used to build a dirty bomb, that is, one in which radioactive materials are dispersed by conventional explosives. The US has 300 ports of entry, and the 18,000 border inspectors who staff them--9,000 customs agents, 6,000 immigration agents and 3,000 agriculture agents- are expected to be outfitted with personal radiation pagers by mid-2003. These agents, now all part of DHS, are to be cross-trained to do each other's jobs.

The federal government is linking databases, and making the information on foreigners stored there more widely available to state and local law enforcement agencies. For the first time, state and local law enforcement agencies will have access to the State Department's visa applicant database, which has information on 50 million overseas applications for US visas.

Registration/Detention. In 2003, men over the age of 16 from 24 Middle Eastern countries and North Korea have had to register at the INS under the National Security Entry-Exit Registration System (NSEERS). This involves being fingerprinted, photographed and interviewed upon entry, and notifying the INS when leaving the US. US citizens and legal permanent residents from the targeted countries are not required to register.

As they registered, some of the foreigners were arrested for visa violations and detained, even if they had applications for visa extensions or change of status pending. These foreigners had expected to pay a $1,000 fine and adjust their status in the US, so that the immigration violation would not prevent them from obtaining an immigrant visa.

However, the INS is far behind in dealing with adjustment-of-status immigrant visa applications, and foreigners are in violation and subject to removal until the INS acts on their applications. Some immigration advocates want Congress to change the law so that out-of-status foreigners who are required to register but have an adjustment-of-status application pending are not detained and slated for removal. The detentions prompted protests, especially by Iranians in the Los Angeles area, and the INS soon released many of the visa violators.

By mid-March 2003, some 42,000 men had registered with the INS. Ten percent of these were detained and faced removal from the US. Arab-American groups called the mandatory registration race- and religious-based discrimination. The US Department of Justice countered that there was no discrimination because, by 2005, all foreigners visiting the US, not just those from the Middle East and North Korea, will have to register with the National Security Entry-Exit Registration System.

The Pakistani government lodged an official protest , arguing that since Pakistan is an ally in the war on terror, its citizens should not have to register as "suspected criminals" in the US. It asked that Pakistanis in the US be exempt from registration or, at a minimum, that any registration requirement not result in a large number of deportations. There are an estimated 500,000 Pakistanis in the US, and Pakistani men were to register by March 21, 2003.

Instead, many Pakistanis in the US headed for Canada to apply for asylum. Instead of interviewing them immediately, Canadian officials gave them appointments for asylum interviews several months in the future, and sent some back to the US, which resulted in some being arrested by the INS. Pakistanis have become the major group applying for asylum in Canada, even though many Pakistanis leaving the US say they prefer to stay in the US.

Canada and the US have similar approval rates for asylum seekers, 57 and 54 percent, but the US often detains asylum applicants, while Canada allows asylum applicants to work. Canada has about 650,000 Muslim residents.

One effect of the registration program is to force unauthorized foreigners to decide whether to come forward, register, and risk detention and removal, or not register and be caught. Foreigners illegally in the US more than one year cannot apply for asylum, and are subject to removal if detected.

Under another program, since September 2002 foreigners arriving from many other countries must register at ports of entry upon arrival. In the first four months, 30,828 from more than 100 nations registered, with one percent refused entry. Under the POE registration, inspectors consider travel patterns and place of birth when deciding whether to require arriving foreigners to register.

The Justice Department's Office of Inspector General issued a report in March 2003 concluding that inspectors at ports of entry received insufficient training to properly screen the 500 million foreign visitors who entered the US in 2002. (http://www.usdoj.gov/oig/audit/0315/exec.htm)

After September 11, 2001, the US government detained about 1,200 foreigners for violating immigration and other laws. In most cases, the government refused to release their names for fear of tipping off terrorists to any patterns in the arrests. Most have been removed from the US or released. The effort led to only a handful of charges against those detained.

In March 2003, DHS announced that, as part of part of Operation Liberty Shield, foreigners from 33 mainly Muslim countries where Al Qaeda and other terrorist groups have operated who apply for asylum in the United States will be detained until decisions on their applications are made, which can be six months or more. If the order had been in effect in 2002, over 600 foreigners, mostly Iraqis, would have been detained.

Edward M. Kennedy (D-MA) criticized the policy of detaining all asylum applicants from particular countries, saying: "Targeting asylum seekers who are fleeing human rights abuses betrays our tradition as a protector of the oppressed." UNHCR decried the assumption that there is a link between an individual's country of origin and terrorism.

Until 1995, asylum applicants in the US could obtain work permits but not welfare assistance while their applications were pending. When work permits were denied for at least six months in 1995, the number of asylum applications fell to 65,000 a year from 150,000 a year, and the approval rate rose.

Border. Most of the 955,310 foreigners apprehended by the Border Patrol in FY02 were Mexicans caught just inside the US border in the southern Arizona desert. Many private groups, including Ranch Rescue and the American Border Patrol, have started to patrol desert areas to deter migrants attempting entry, often in large groups led by armed smugglers. In Tombstone, Arizona, a "Citizens Border Patrol Militia" was established.

The Mexican government has also begun to act. In March 2003, Mexican officials stopped two groups of 100 people from entering the US via the Arizona desert; the groups were being smuggled into the US by a Tijuana-based organization.

National parks, wildlife sanctuaries and Indian reservations occupy 36 percent of the 2,000-mile US border with Mexico. The US Department of the Interior is responsible for protecting the parks and visitors. An estimated 1,000 unauthorized migrants attempt to enter the US each day via the Organ Pipe Cactus National Monument in Arizona. The parents of a park ranger killed by smugglers in Organ Pipe said: "There is a political element in Washington that favors open borders to provide cheap labor and to avoid charges that they are racist .... They don't care that my kid was murdered."

Senator John McCain (R-Arizona) on a tour of the border in March 2003 said, "if you are truly going to control our border, then you've got to have a guest-worker program."

The US formally deported 106,837 Mexicans in FY02, down from 141,277 in FY01. Overall deportations declined 18 percent from FY01 to FY02.