The Difficulties Immigrants Face in the Post-9/11 World:
How the War on Terrorism Has Changed Their Legal Status

The terrorist attacks of September 11, 2001, the subsequent conflict in Afghanistan and the war in Iraq have all had a profound impact upon American public opinion. They have affected Americans' collective perception of their safety, their tolerance for diversity and dissent, and their perception of the nature of America's role in the global society.

Immigration law is highly sensitive to changes in public opinion, and these have been no exception. Thus, it is not surprising that, in the post-9/11 era - and especially in recent months, during the war on Iraq - immigration law practitioners have witnessed an ongoing revolution in, and evolution of, their field of specialization.

Even agency divisions have changed. As of March 1, the Immigration and Naturalization Service ceased to exist. Its duties are now divided between three new agencies created under the auspices of the Department of Homeland Security.

The agency that currently administers citizenship benefits is the Bureau of Citizenship and Immigration Services. This new agency has begun to apply some very new immigration laws and policies as well.

Recent Registration Requirements Resulted in Detentions of Innocent Immigrants

Prior to 9/11, countless immigrants had hoped for a relaxation of restrictive policies that had made it difficult for them to legalize their status in the United States, or to gain admission to this country. But since 9/11, they have faced the opposite - a dramatic tightening of immigration laws and policies.

Most notably, in the days immediately following the attacks, Congress passed the USA Patriot Act. The Act was designed to combat terrorism. But in practice, its provisions have had a strong negative impact upon many foreign nationals who have nothing to do with terrorism.

Among other measures, the USA Patriot Act created the National Security Entry-Exit Registration System (NSEERS) - also known as "Special Registration." However, NSEERS was not activated until well over a year after the Act became law. This occurred at about the time when diplomatic negotiations between the U.S.-led Coalition and its opponents at the United Nations reached a stalemate, and Coalition military intervention into Iraq became inevitable.

Special Registration mandates that all male individuals over the age of 16 who are citizens or nationals of certain countries, and who are temporarily present in the U.S. must register with the federal government prior to a specific deadline. To register, they must present themselves for fingerprints and questioning. Deadlines vary based on the country of origin, and the most recent deadline was Friday, April 25, 2003. The government has not yet indicated if it will designate additional groups of aliens for registration.

Citizens and permanent residents (green card holders) are exempt. So are the members of a limited subcategory of applicants for asylum - that is, refugees in the U.S. based on political, religious, ethnic or other types of persecution suffered abroad. Finally, and perhaps most confusingly, people who entered the country illegally are not required to register, while those who entered legally but may have overstayed their visas are subject to the requirement.

The relevant countries, which are listed in the Federal Register, are generally either known to promote terrorism, or known to render safe haven to architects of terror, such as the agents of Al Qaeda and Osama Bin Laden. Virtually all are located in the Middle East or North Africa, regions with majority Muslim or Arab populations.

Very disturbingly, in some cases, registration has been transformed into detention. Indeed, in December 2002, thousands of immigrants from Iraq, Iran and several other countries were detained without bond. There was no evidence that these individuals had been involved in terrorist (or even criminal) activity; they were detained, instead, due to immigration law technicalities. Moreover, many were family members of U.S. citizens or permanent residents who were therefore eligible for immigration benefits.

To the government's credit, the situation seems to have improved in recent months. Some observers still believe, however, that NSEERS continues to be used to ferret out immigration status violators, rather than as a legitimate tool to combat terrorism.

Targeting the Borders: Stricter Rules for Arriving Asylum Applicants

A separate initiative - part of "Operation Liberty Shield" - has caused difficulties for asylum seekers - immigrants who are often in desperate need of America's help, since if forced to return to their home countries, they will face persecution there.

Under this initiative, asylum seekers from thirty countries who have not yet been admitted to the U.S. must be immediately and indefinitely detained. (The countries' names have not been released, but they are likely the same countries listed in the Federal Register with respect to Special Registration; already-admitted asylum seekers are exempt).

Normally, applicants for asylum who demonstrate a "credible fear of persecution" to an interviewing officer at a Port of Entry are eligible to be released on bond until an individual hearing can be scheduled for them. Now, however, such proof will not be sufficient for release.

The government claims that this measure will significantly diminish the ability of terrorists to slip into the country under false pretenses, pretending to be asylum applicants. But opponents have predicted that the net effect will, instead, be to needlessly penalize those who have already been subject to oppression in their home countries.

It is too early to tell what impact this new initiative will have on refugees from countries such as Iraq, Afghanistan and other nations that have seen a change in the ruling regime as a result of U.S. intervention.

In theory at least, countries with a U.S. presence, and governments begun under U.S. auspices should not be persecuting their citizens in the first place, but in practice, persecution still may occur. The question is whether the U.S. will recognize a credible fear of persecution by refugees of such countries, and be sympathetic to such fears. Will ex-Taliban supporters or ex-Baathists who fear repercussions be afforded asylum if they were minor players in the regimes?

U.S. Patriots Have Been Rewarded with Citizenship

From immigrants' perspective, there has been at least one positive development in the post-9/11 era: the greater possibility of gaining U.S. citizenship through proof of American patriotism.

For instance, President Bush has recently indicated his willingness to expedite the citizenship applications of "green card holders" who have served in the armed forces during the war on terror. Congress has also sponsored bi-partisan legislation, known as the Naturalization and Family Protection for Military Members Act, which would make it easier for servicemen and women to obtain citizenship, and would extend these benefits to family members.

Citizenship has also been viewed in some quarters as a "reward" to be granted for extraordinary service to the country. For example, an ex-Marine has been circulating a petition in recent weeks calling for the immediate grant of U.S. citizenship to the Iraqi lawyer who tipped U.S. forces as to the location of captured prisoner of war Jessica Lynch. The individual, known only as "Mohamed," is already well on his way to this goal, since he has recently been granted asylum, along with his family members. This is a strong indication that other Iraquis who can prove that they in some way assisted the U.S. in the battle against Saddam Hussein will likewise be entitled to this benefit.

On a more poignant note, citizenship has been posthumously granted to Marine Lance Corporal Jose Gutierrez. Gutierrez, an orphaned Guatemalan who entered the United States illegally in 1997, obtained asylum here at the tender age of 16. He enlisted in the Marines to earn the possibility of an education, and to become a citizen of the country that had given him safe haven. Tragically, he was the first serviceman to be killed in combat during Operation Iraqi Freedom, taking a bullet in the chest at the Iraqi Port of Um Qasr.

Meanwhile, a number of influential supporters - including the Editorial Board of the Washington Times - are backing the citizenship bid of another young serviceman, Sergeant Khanh T. Nguyen. Khanh is a Marine Corps reservist who was called up for active duty when hostilities erupted. The government had denied his naturalization application because he failed, under oath, to list a juvenile arrest for a relatively insignificant offense - even though the arrest, if revealed, would not have been a bar to naturalization.

Immigration Policies Have Been Transformed In The Post-9/11 Era

In sum, all of the aftermath of September 11 - including the resulting legislation and government reorganization, and the wars in Afghanistan and Iraq - has culminated in drastic changes in the laws and policies that affect immigrants. Moreover, these changes, far from being confined to wartime, are likely to have a profound and lasting impact.

So far, bright spots such as citizenship grants for patriotic service have been mixed with darker incidents such as detentions of innocent immigrants on technical violations, or simply because they seek asylum. As a result, immigration practitioners, like most laypeople, are waiting - with impatience, and some trepidation - for the next chapter of this saga to be written.