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Chairman Sensenbrenner, Ranking Member Conyers and distinguished Members of the Committee, my name is Carlina Tapia-Ruano and I am the First Vice President of the American Immigration Lawyers Association (AILA). I am honored to be here today representing AILA.
AILA is the immigration bar association with more than 8,900 members who practice immigration law. Founded in 1946, the association is a nonpartisan, nonprofit organization and is an affiliated organization of the American Bar Association (ABA). AILA members represent tens of thousands of American families who have applied for permanent residence for their spouses, children, and other close relatives to lawfully enter and reside in the United States; U.S. businesses, universities, colleges, and industries that sponsor highly skilled foreign professionals seeking to enter the United States on a temporary basis or, having proved the unavailability of U.S. workers when required, on a permanent basis; and healthcare workers, asylum seekers, often on a pro bono basis, as well as athletes, entertainers, exchange visitors, artists, and foreign students. AILA members have assisted in contributing ideas for increased port of entry inspection efficiencies and continue to work through their national liaison activities with federal agencies engaged in the administration and enforcement of our immigration laws to identify ways to improve adjudicative processes and procedures.
Thank you for this opportunity to appear before you today on this very important issue. In response to the September 11, 2001 terrorist attacks, Congress with insufficient deliberation passed the USA PATRIOT Act (the “Act”). The Act includes a number of highly troubling immigration-related provisions and casts such a broad net that it allows for the detention and deportation of people engaging in innocent associational activity and constitutionally protected speech, and permits the indefinite detention of immigrants and noncitizens who are not terrorists.
The Bush Administration also has taken some deeply troubling steps since September 11. Along with supporting the USA PATRIOT ACT, the Administration has initiated new policies and practices that negate fundamental due process protections and jeopardize basic civil liberties for non-citizens in the United States. These constitutionally dubious initiatives undermine our historical commitment to the fair treatment of every individual before the law and do not enhance our security. Issued without Congressional consultation or approval, these new measures include regulations that increase secrecy, limit accountability, and erode important due process principles that set our nation apart from other countries.
In the 108'h Congress, Members in the House and Senate introduced a bill, the Civil Liberties Restoration Act (CLRA), that sought to roll back some of the most egregious post-9/11 policies and strike an appropriate balance between security needs and liberty interests. The CLRA (H.R. 1502), which was reintroduced in the 1094 Congress by Representatives Berman (D-CA) and Dellahunt (D-MA), would secure due process protections and civil liberties for non-citizens in the U.S., enhance the effectiveness of our nation's enforcement activities, restore the confidence of immigrant communities in the faimess of our government, and facilitate our efforts at promoting human rights and democracy around the world.
While every step must be taken to protect the American public from further terrorist acts, our government must not trample on the Constitution in the process and on those basic rights and protections that make American democracy so unique.
THE PATRIOT ACT: Deeply Troubling Provisions
AILA is deeply troubled by the following practices included in the PATRIOT Act :
Punishing innocent associations and constitutionally protected speech: The USA
Authorize the Attorney General (AG) to arrest and detain noncitizens based on
detention based merely on the Attorney General's unproven suspicions.
detained as a “certified” terrorist suspect within seven days, but the law does not
dues is a deportable offense. This vague and overly broad language constitutes guilt by association. Our laws should punish people who commit crimes, not punish people based on their beliefs or associations.
POST 9/11 REGULATIONS AND POLICIES
Many of the post-9/11 regulations and policies of the Bush Administration have undermined law enforcement officials' ability to perform their duties, have done little to gather worthwhile intelligence, have granted the executive branch broad powers to act in secret, and have made it difficult for foreign visitors to maintain legal status. These actions waste law enforcement's valuable resources by focusing on people who pose no threat to our national security, and violate fundamental principles of justice. The CLRA would redress a number of troubling post-9/11 policies affecting non-citizens, including the following:
Closing immigration hearings and refusing to disclose basic information on detainees: On September 21, 2001, the Department of Justice (DOJ) through what is now known as the “Creppy memo," ordered immigration judges to close all hearings related to individuals detained in the course of the 9/11 investigation. Not only were the hearings held in secret—excluding all visitors, family, and press—but the very identities of the jailed individuals were withheld from public disclosure. Although these cases involved no classified evidence, the records of these proceedings were never released and court officials were prohibited from confirming or denying the mere existence of the cases. To this day, the government refuses to provide any information about these cases despite repeated Freedom of Information Act (FOIA) requests. These FOIA denials were litigated up to the Supreme Court, which recently declined to grant certiorari, leaving intact a split federal appeals court decision upholding the denials.
The immigration process should be open to the public; secret hearings are the practice of repressive regimes, not open and democratic societies. The CLRA would prohibit blanket closures of immigration proceedings, authorizing closure only after a judge has determined that there is a compelling reason to keep out the public or withhold information in a particular case or portion thereof.
Holding non-citizens in jail indefinitely without charges: The DOJ issued regulations on September 20, 2001 authorizing the INS to hold any non-citizen in custody for 48 hours or an unspecified "additional reasonable period of time” before charging the person with an offense. Congress subsequently weighed in on this subject in the USA PATRIOT Act when it authorized detention of up to 7 days before charges must be brought in the case of certified suspected terrorists. The DOJ, however, has never invoked that provision and has relied instead on its own openended regulation as the legal justification for the detention of non-citizens without charge. The DOJ rule is unlimited in its application and can be applied to any noncitizen. A DOJ Inspector General Report (April 2003) on post-9/11 detainees documents how INS detained non-citizens for weeks, and in some cases months, before charging them with immigration violations. Tellingly, none of the detainees ever was charged with an offense related to the 9/11 attacks.
As amply manifest in its implementation, this rule violates a fundamental principle in our constitutional system and in internationally recognized standards of fair legal process--that no person should be subject to arrest and imprisonment without reason, explanation, and due process. It also demonstrates that DOJ willfully circumvented Congress's mandate about how long an individual suspected of terrorist activity can reasonably be detained before charging them. The CLRA would explicitly supersede the DOJ regulation by requiring charges to be filed, and notice of charges to be served, within 48 hours of the detention (unless certified as a suspected terrorist under the PATRIOT Act provision). It also would require the detainee to be brought in front of an immigration judge within 72 hours of being detained.
Keeping non-citizens jailed even after an immigration judge has found them eligible for release: The Attomey General issued regulations on October 31, 2001 that require people in immigration proceedings to remain in custody even though an immigration judge has found them eligible for bond. In its rationale, the DOJ does not assert that immigration judges or the Board of Immigration Appeals (BIA) were abusing their power or failing to keep terrorist suspects in detention. Rather, the DOJ argues that the new regulation will “avoid the necessity for a case-by-case determination of whether a stay (of a release order) should be granted in particular cases.” This regulation effectively enables prosecutors to circumvent the considered decision of independent adjudicators regarding the likelihood that an individual will appear for future proceedings and the threat a detainee poses to the community. Prosecutors present their case before the court, and if they should lose, they can simply overrule the judge. It thus completely eviscerates the longstanding role of immigration courts in making bond determinations and the BIA in reviewing those decisions.
When an individual faces detention—a fundamental deprivation of liberty a caseby-case review is exactly what the principles of our judicial system demand. Allowing the agency with the chief interest in prosecution (DHS) to also determine whether an individual can be released from jail is a violation of fundamental principles of due process. The CLRA would eliminate the power of DHS prosecutors to automatically stay ration judges' bond determinations and it defines the conditions under which temporary stays should be granted, giving the government ample opportunity to demonstrate a person's dangerousness while providing a fair process of adjudication.
Denying bond to whole classes of non-citizens without individual case consideration: The detention of non-citizens for indefinite periods without an individualized assessment of their eligibility for release on bond or other conditions raises serious constitutional questions. Although the Supreme Court has upheld mandatory detention when Congress has expressly required such detention for a discrete class of non-citizens, it has not authorized the executive branch to make 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. If not, the CLRA would require their release under reasonable bond or other conditions.
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 training in