Detention Disorder

Eleven young, dark-skinned men shuffled out of an elevator handcuffed to one another. A few tripped over ankle cuffs as three officers in puffy blue windbreakers -- with "IMMIGRATION POLICE" splashed across the back in bold yellow lettering -- ushered them through the entry chamber, out a pair of glass doors and into a van waiting to take them into detention. The room was briefly silent as security guards, bureaucrats and lawyers alike watched the procession. Then the silence broke. "Numbers 55 through 60, numbers 55 through 60!" rang an Immigration and Naturalization Service official's voice. Outside, television crews from Al-Jazeera and Univision, among others, were on hand to film the events. Inside, English, Spanish and Arabic voices briefly rose together to form a disorienting murmur. But then they quieted, and it was back to business as usual at Washington's INS office in Arlington, Virginia.

But not quite normal: It was Friday, Jan. 10, the last day for a select group of individuals to comply with a recently enacted registration program that has already led to the detention of about 1,000 people -- and could lead to hundreds, if not thousands, of deportations.

The INS -- currently a division of the Department of Justice, though it will be folded into the new Department of Homeland Security on March 1 -- has been given the task of implementing Attorney General John Ashcroft's special registration program, which applies to nonimmigrant male visitors from certain countries who are over the age of 16 and entered the United States before Sept. 30, 2002. (Nonimmigrant visitors include tourists and those who have entered the country on student or work visas. They are not legal permanent residents or U.S. citizens.) Those from the first group of five countries -- Syria, Iraq, Iran, Libya and Sudan -- were given a deadline of Dec. 16. The day I visited the INS office in Arlington was the deadline for nonimmigrant visitors from a group of 12 north African and Middle Eastern countries, plus North Korea. The administration has recently added two more groups: 14,000 men from Pakistan and Saudi Arabia have a deadline of Feb. 21, and thousands more from Bangladesh, Egypt, Indonesia, Jordan and Kuwait have been instructed to register between Feb. 24 and March 28.

The registration procedure is thorough, to say the least. It begins with registrants giving fingerprints, being photographed and filling out a form requiring detailed personal information -- and ends with an FBI interview. Justice Department spokesman Jorge Martinez believes that this information is necessary intelligence for the war against terrorism. "These people are considered a high risk," he said. "The goal of the system is to know who is coming in and out, and that they are in fact doing what they said they would do." So far, however, the dragnet hasn't appeared to land much in the way of real crime. Of the approximately 1,000 people detained, only 15 are in custody for a criminal violation -- and none of the 15 has been charged with a terrorism-related crime.

For the most part, registrants are being detained for overstaying their visas in hopes of finding a job and eventually adjusting their status to legal resident -- a crime former INS Commissioner Doris Meissner has likened to jaywalking. Many others in the same situation are afraid to come forward because, though they are willing to comply with the registration program, they do not want to be arrested and deported. "I have a bunch of clients who are staying away because they are afraid," Kamal Nawash, an immigration lawyer, told me on Jan. 10 as he tried to handle the cases of 10 clients who did decide to register. (Nawash, who dislikes the registration program, also happens to be a Republican candidate for the House of Delegates in Virginia and describes himself as a "very hardcore Republican activist.")

Some immigrants who are afraid to register are even starting to flee to Canada or Mexico, according to a Jan. 15 article in Newsday. When I mentioned this to Martinez, he responded, "If you knew the history and were halfway intelligent, you'd know that none of [the September 11 terrorists] were doing what they were supposed to do," he said. "Three had overstayed their visas."

Of course, any "halfway intelligent" person also knows that no terrorist is going to show up for an interview with the FBI. Which is probably why just about everyone I have talked to about the registration program -- from an INS official to foreign nationals to immigration lawyers -- has made the same point: Unless the terrorists are a lot stupider than we think, the information being gathered under this program isn't really intelligence; it's just, well, information.

The program's implementation has not gone smoothly. The Justice Department failed to issue a press release or put information on its Web site until 10 days before the first deadline, which is why many foreign nationals did not know they had to appear and were subsequently arrested for showing up late. An Arabic rendering of the rules for the second group was embarrassingly mistranslated to say that individuals under the age of 16 who had entered the United States after Sept. 30 had to appear. Moreover, the Justice Department has done little to publicize the program, leaving many foreign nationals unaware of their obligations. (As a result of these problems, the INS recently decided to provide a grace period until Feb. 7 for those who missed either of the first two deadlines.) Yet another logistical oddity is the order in which the INS scheduled deadlines for different countries. If the program is meant to quickly ferret out individuals who pose the highest risk, why make Jan. 10 the deadline for Eritreans and North Koreans but Feb. 21 the deadline for Saudis and Pakistanis? "Classified," says Martinez.

In addition, the law has been unevenly enforced. Some INS offices have illegally denied registrants legal counsel; others have improperly registered U.S. citizens or wrongly detained registrants, according to the American Immigration Lawyers Association and the National Immigration Forum. Many officials, not to mention immigration lawyers, have been confused about the meaning of the law: It says "foreign citizens and nationals" must register, but no one seems to understand the difference between a "citizen" and a "national," or even what a "national" is. The only available guidance is a phrase from a 50-year old statute that defines a "national" as "a person owing permanent allegiance to a state" other than the United States. Even Jorge Martinez did not know how to define "national."

The confusion has led to instances in which citizens of countries not covered by the program -- such as Canada, Liberia and Norway -- showed up to register and were arrested. For instance, two Canadian citizens, who were born in Iran but left when they were very young, were arrested and held in jail for days. They were in the United States on work visas for the high-tech industry, and had showed up at an INS office uncertain whether they even needed to register. Chrystal Williams, a spokeswoman for the American Immigration Lawyers Association, says there have been a number of such mix-ups.

What's more, INS staffers have received little special training and have had to keep the office open far past normal hours. On Jan. 9, the day before one of the deadlines, the Arlington INS office was so overwhelmed with registrants that it had to send many to the Dulles International Airport office to be processed. Even so, the Arlington office remained open until midnight, and officials spent much of their time answering questions from confused officers at Dulles. The Bush administration may have forgotten that it represents the party of small government, but even when on a hunt for terrorists, it apparently runs a government of small pockets: The late-working INS officials did not even get overtime pay for their efforts.

Many think the program is merely a public-relations move. "It is a political statement," says Meissner, the former INS commissioner. "There needs to be an overall strategy and then acting on that strategy, rather than these shoot-from-the-hip responses." Indeed, many mistakes in the program appear to be the product of a process that has pitted political appointees in the Justice Department against career civil servants. Any seasoned official knows -- or should know -- that making more work for an already inefficient and overworked INS is a risky proposition. But the ideological young law professor Ashcroft has brought in to work on immigration policy from his home state of Missouri, Kris Kobach, has no experience in government besides a stint last year as a White House fellow. His and Ashcroft's armchair policy-making has put INS officials in the uncomfortable position of having to enforce measures they don't want to carry out -- but they have little choice.

Prior to September 11, the INS rarely initiated deportation proceedings against individuals who had overstayed their visas but were in the process of adjusting their status. But now, no INS official wants to be the one who let the terrorist get away, so to speak, and thus the default posture has been to err on the side of extreme caution. On Jan. 10, I watched an immigration lawyer complain to an INS official that his the lawyer's client was being detained unfairly. The official turned to the lawyer, gave him a knowing look and said, "CYA! CYA!" As the lawyer puzzled over the indecipherable string of letters, the official translated it with a rueful grin: "Cover Your Ass!"

Though the approximately 1,000 individuals who have been detained have for the most part been released on bonds, nearly all are currently in deportation proceedings. And with individuals from countries such as Saudi Arabia, Pakistan and Indonesia coming up, many more will soon be added to the list. Martinez says they "will have their day in court in front of an immigration judge to plead their case, and have all their rights." Ashcroft, however, has been working hard to curtail those rights. The attorney general recently mandated that the Board of Immigration Appeals -- the 23-member board that reviews the rulings of the 220 nationwide immigration judges -- clear its 56,000-case backlog by March 25. This has forced the members to hear individual cases usually for just a few minutes before ruling, and denial rates have skyrocketed from 59 percent in October 2001 to 86 percent in October 2002, according to the Los Angeles Times. "Many, many cases are decided at a speed that makes it impossible to believe they got the scrutiny a person who faces removable from the United States deserves," T. Alexander Aleinikoff, a former INS general counsel, told the Times.

Immigration courts already don't allow defendants the full bill of rights afforded citizens in normal courts, but this ruling will undoubtedly further restrict what little recourse foreigners still have. "It lays the basis for some scarier scenarios down the road should [the Justice Department] want to get rid of a lot of people," says Jeanne Butterfield, executive director of the American Immigration Lawyers Association. According to a Jan. 20 piece in The New York Times, since September 11, the Justice Department had already deported nearly 1,600 men in earlier, similar sweeps. And according to The Atlanta Journal-Constitution, deportations to Muslim nations tripled in the year after September 11.

Now, even if the foreigners registered through this latest program manage to win a right to stay, the INS will have imposed a hardship few of the poorly paid detainees can afford: $1,500 bonds, steep lawyers fees and the opportunity cost of missed work. "Look, these guys come here to save a little money to send home, and then go," the lawyer Nawash said. "Every penny they're making goes to us, the lawyers, or to the government. "Instead of sending money home to their families, they are calling their families to send money to help bail them out."

This is not the first time in American history that immigrants have been expeditiously removed from the country for political reasons. In the summer of 1919, anarchists carried out a series of bombings, including blasts in eight cities that, among other things, destroyed part of then-Attorney General A. Mitchell Palmer's house. Palmer quickly used his immigration authority to order a series of roundups that later became known as the Palmer Raids. Authorities apprehended thousands of immigrants, deporting 556 of them before Assistant Secretary of Labor Louis F. Post overturned the rest of the orders. "Palmer didn't have any reason to believe the bombings were the work of foreign nationals as opposed to domestic anarchists," notes Georgetown University Law Center professor David Cole. "He went after foreign nationals not so much because that was where the threat lay but because that was where the law allows us to go." Cole is referring to the fact that immigration procedure is administrative rather than criminal, and therefore "doesn't trigger all sorts of constitutional protections." Cole believes the same philosophy -- deport many innocents in the hope that you stop a few terrorists -- behind the Palmer Raids of 1919 may be behind the Ashcroft tactics of 2003. But as Cole notes, "The last thing you want to do with a real terrorist is send him abroad . . . What we want to do is charge him and lock him up." Which, of course, would also spare the innocent thousands caught in the middle.

There are however, a few noticeable differences between 1919 and 2003. For one, Palmer's action was quick and decisive whereas -- aside from a few initial sweeps -- Ashcroft has taken nearly a year to set up his registration program. And despite the deliberate pace of his efforts, Ashcroft has faced far less public resistance than Palmer did 80 years ago. Indeed, perhaps the most significant difference is that Ashcroft has already far surpassed his predecessor in numbers deported -- even though, in 1919, American soil hosted a well-organized Communist Party with tens of thousands of members, as well as numerous unions that were involved in frequent and militant strikes.

In explaining his actions, Ashcroft has pointed to a congressional mandate to track virtually all nonimmigrant visitors (who enter the country at a rate of 35 million per year) by 2005. But many feel that Ashcroft has liberally interpreted recent laws -- passed in 1996, 2001 and 2002 -- and leaned on a long-forgotten 50-year old act, which includes a provision for registration of foreign nationals, to justify the program. Some experts even think the program is not congressionally mandated at all. "It's a very creative and diabolical way of circumventing congressional approval and oversight," says Angela Kelly of the National Immigration Forum, "by breathing life into these little-known, rarely used but quite punishing provisions of immigration law."

Though the INS will be folded into the new Homeland Security Department on March 1, all but one of the registration deadlines will have already passed. Martinez, the Justice Department spokesman, says there are no plans to terminate the program after the switch.

To date, the program has not been a complete waste of effort: Martinez points out that it has led to the arrest of "a wife beater, narcotics dealer and very serious violent offenders." But that isn't exactly the same as catching terrorists. And if what we really want is to catch wife beaters, narcotics dealers and violent offenders, the Justice Department should simply require everyone in America to show up and register.

Alex Gourevitch is a Prospect writing fellow.

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