sweeping group-wide detention decisions. Nevertheless, since September 11, 2001, DOJ and DHS have established policies mandating the detention of certain classes of non-citizens without any possibility for release until the conclusion of proceedings against them. For example, all of the individuals who were detained on immigration violations during the course of the post-9/11 investigation were subjected to a “hold until cleared" policy. Even individuals who did not contest their removability, and against whom final orders of removal had been entered, remained in detention until the FBI cleared them. It bears repeating that the government never charged any of these detainees with a terrorism-related offense.

DOJ and DHS also have extended mandatory detention policies to certain noncitizens seeking asylum. In Matter of D-J, the Attorney General (AG) reversed a BIA decision upholding bond to a detained asylum seeker from Haiti. The AG's precedent decision argues that releasing the individual on bond would trigger a wave of sea-going migrations from Haiti and would divert Coast Guard resources from the fight against terrorism. He then concludes, on that specious basis, that national security interests necessitated the mandatory detention of all similarly situated asylum applicants during the pendency of their proceedings. DHS's (now defunct) Operation Liberty Shield initiative reinforced this harsh and inappropriate policy by subjecting all asylum seekers from 30-plus unspecified countries to mandatory detention.

Unilateral executive branch decisions to mandatorily detain whole classes of individuals contravene important due process principles and individual liberty interests. The CLRA would require immigration authorities and immigration judges to provide an individualized assessment of whether persons should remain in detention because they constitute a flight risk or a danger to society. CLRA would require their release under reasonable bond or other conditions.

If not, the

• Entering certain immigration status violators into a criminal database and exempting the data from accuracy requirements of the Privacy Act: The DOJ reversed a legal opinion drafted under a previous Administration, concluding that states and localities, as sovereign entities, have the "inherent authority" to enforce federal immigration laws, including civil violations of immigration law. This opinion conflicts with the long-standing legal tradition that immigration is exclusively a federal matter. Moreover, by conscripting local police to serve as federal immigration agents, immigrant communities will lose confidence in the police, thereby undoing decades of successful community-based policing initiatives.

DOJ also announced in December 2001 that it would begin entering the names of hundreds of thousands of immigration status violators into the National Crime Information Center (NCIC) database so that local police could apprehend them. Compounding the potentially disastrous consequences of this initiative is a regulation DOJ issued in March 2003 that exempts the NCIC database from the accuracy requirements of the Privacy Act. The database thus will provide information of dubious accuracy to local law enforcement officials who have little or no training in

immigration law, increasing the likelihood of unfair or unlawful arrests and detentions or other civil rights abuses. To forestall some of these concerns, the CLRA would require information entered into the NCIC database to comply with the Privacy Act accuracy standards.

Implementing a discriminatory "special registration" policy: The National Security Entry-Exit Registration System (NSEERS or special registration) imposes new registration requirements on certain applicants for admission to the U.S. as well as on certain non-citizens already living in the U.S. The latter requirement, known as call-in registration, required all males 16 years of age or older, who were citizens or nationals of one of twenty-five designated predominantly Muslim countries, and who entered the U.S. as nonimmigrants before certain designated dates, to be interrogated, fingerprinted, and photographed. Administration protests to the contrary notwithstanding, the call-in registration program targeted people based on national origin, race and religion, rather than on specific intelligence information. Billed as a national security initiative, NSEERS obligated men from Muslim countries to register so that the government could get a better sense of who was in the country. Dutifully. more than 85,000 people registered; tragically, more than 13,000 of the registrants were placed into removal proceedings due to immigration status violations. Although many of the violations were technical and many registrants were on the path to normalizing their status, they were placed in proceedings nevertheless.

As with the post-9/11 detainees, none of the call-in registrants was charged with a terrorist-related offense, providing further evidence that this initiative succeeded only in alienating immigrant communities, straining international relations, and diverting precious law enforcement resources from identifying people who intend to harm us. In December 2003, DHS wisely suspended certain re-registration requirements associated with the program, but left other components intact. The CLRA would terminate the NSEERS program in its entirety and provide relief from immigration consequences to some individuals who were placed in immigration proceedings due to this failed program.

• Instituting “reforms” that severely undermine due process rights for immigrants appearing before the BIA: Despite nearly universal agreement that our immigration system is replete with serious deficiencies, the Administration has begun dismantling the only review apparatus currently in place, the immigration appeals system. Through a series of regulations issued by Attorney General John Ashcroft, the BIA— the court of last resort for many immigrants fighting deportation—has been stripped of its ability to serve as a meaningful watchdog over the lower courts. Because the Executive Office for Immigration Review (which currently houses the immigration courts) is a regulatory creation, the Attorney General possesses virtually unfettered discretion to reconstitute the system in whatever way he deems appropriate. The "reforms" at issue include the following: reducing the overall number of judges sitting on the Board of Immigration Appeals from 23 to 11 by reassigning the 5 most “immigrant friendly" judges to other positions; making one-judge review of lower court decisions the norm as opposed to the traditional three-judge panels; expanding

dramatically the range of cases which can be affirmed without any opinion; and eliminating the Board's de novo review authority. (See AILA Issue Paper entitled "The Importance of Independence and Accountability in Our Immigration Courts".)

The results of this initiative have been stunning. A report commissioned by the American Bar Association (ABA) that evaluated the regulations determined that the increased speed in the decision-making process has had a significant impact on substantive outcomes: “decisions in favor of the respondents have decreased alarmingly from 1 in 4 to 1 in 10." Not only did the regulations fail miserably from a fairness perspective, they also failed to achieve their stated purpose of improving efficiency. The United States Courts of Appeals have experienced a massive surge in BLA appeals, in volume and rate, since the regulations were implemented. Hence, the net effect of the Attorney General's streamlining measures has not been to eliminate the backlogs, but merely to shift the backlog to another branch of government, the federal courts. The CLRA would establish an independent immigration court system and establish, for the first time, explicit statutory parameters for its makeup and functions.

AILA'S POSITION: AILA strongly supports policies undertaken since 9/11 that truly promote our security (such as the Enhanced Border Security and Visa Entry Reform Act, P.L. 107-173 and the Intelligence Reform ACT GET PL NUMBER) However, the immigration-related provisions in the PATRIOT Act and The executive actions highlighted in my testimony do not enhance our security. What they have done is erode our constitutionally protected civil liberties. In thoughtful, measured fashion, the Civil Liberties Restoration Act (H.R. 1502) would rein in those policies that go too far in tilting the scales against individual rights and would reaffirm our Constitutional commitment to provide due process to all persons.

APPENDIX

Selected Executive Branch Actions since September 11, 2001

The following are selected administrative actions taken by the Executive Branch since September 11, 2001 listed in reverse chronological order. These actions:

curb rights and due process

undermine fundamental constitutional protections

profile certain communities based on race, religion, and ethnicity and target them for heightened measures

respond to various actions by the INS that have drawn criticism

December 2, 2003: Suspension of Certain NSEERS Requirements

The Department of Homeland Security (DHS) published an Interim Rule in the Federal Register announcing the suspension of certain re-registration requirements for individuals initially registered under the National Security Entry-Exit Registration System (NSEERS or "Special Registration"). Specifically, the Rule amends 8 CFR §§ 264.1(f)(3) and 264.1(f)(5), which required 30-day re-registration for those specially registered at a Port of Entry (POE) and annual re-registration for all individuals subject to Special Registration. Suspension of the re-registration requirements applies to all previously registered foreign nationals, whether under POE registration or "call-in" registration. All other requirements (including departure registration and POE registration) and the Special Registration program itself remain in effect. Anyone who fails to comply with the continuing requirements of Special Registration could be subjected to denial of admission to the U.S., denial of immigration benefits, possible criminal prosecution, and/or removal proceedings. [68 FR 67577, 12-2-03, Interim Rule]

July 7, 2003: Personal Appearance Required for Visa Interviews DOS published an Interim Rule in the Federal Register, effective August 1, 2003, requiring applicants for visas to appear (in most cases) for a personal interview. The Department of State Cable sent to consular posts on May 22, in anticipation of the new regulation, warned of backlogs yet advised posts that they "must implement the new interview guidelines using existing resources. Post should not, repeat not, use overtime to deal with additional workload requirements but should develop appointment systems and public relations strategies to mitigate as much as possible the impact of these changes." [68 FR 40127, 7-7-03, Interim Rule]

As AILA noted in its comments on the Interim Rule, "In fiscal year 2002, 843 consular officers processed 8.3 million nonimmigrant visa applications. It is thought that in some posts as few as 20 percent of applicants were interviewed. The new...policy will mean that about 90 percent of visa applicants will now be interviewed (thus generating, in some

posts, an increase in visa workload of up to 70 percent)-without an attendant increase in the number of consular interviewers or other resources."

April 24, 2003: Matter of D-J

In a far-reaching precedent decision, the Attorney General denied undocumented immigrants recourse to an individualized bond hearing if immigration officials say their release would endanger national security interests. The national security interest identified by the Attorney General in this decision was the prevention of "further surges of mass migration...with attendant strains on national and homeland security resources.”

The Attorney General issued this ruling in the case of an 18-year-old Haitian who arrived in the U.S. on October 29 with more than 200 other refugees and subsequently applied for asylum. The Attorney General's ruling overturns the decisions of both the Immigration Judge (IJ) and the Bureau of Immigration Appeals (BIA) to release the individual on bond pending the outcome of his asylum proceedings. Both the IJ and the BLA concluded that the individual did not present a flight risk or a danger to the community. By eliminating the possibility of release on bond for whole classes of people, this decision represents a significant departure from the well-established due process principle that every individual deserves a hearing to determine whether his or her liberty interest outweighs the government's interest in preventing flight and danger to society.

March 17, 2003: Operation Liberty Shield

Secretary Ridge issued a fact statement and press release discussing a new DHS initiative called Operation Liberty Shield. One component of this initiative requires that asylum applicants be detained for the duration of their processing period if they come from nations where al-Qaeda, al-Qaeda sympathizers, and other terrorist groups are known to have operated.

February 19, 2003: Additional Exit Ports Designated

DOJ published a Notice in the Federal Register providing the public with an expanded list of ports through which nonimmigrant aliens who have been specially registered may depart from the United States. There are now 99 authorized ports of departure for special registrants.

4

February 19, 2003: Special Registration Deadlines Extended for Groups 3 & DOJ published a Notice in the Federal Register extending the registration deadline for two groups of affected foreign nationals. Nonimmigrant aliens of Pakistan or Saudi Arabia who are required to register were given until March 21, 2003 to do so. Nonimmigrant aliens from Bangladesh, Egypt, Indonesia, Jordan, or Kuwait who are required to register are permitted to do so before April 25, 2003. [68 FR 8046, 2-19-03. Notice]