ACLU Memo to Interested Persons Regarding Concerns in H.R. 4437, the "Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005"

To: Interested Persons

From: Timothy H. Edgar, National Security Policy Counsel[1]

Re: Civil Liberties Concerns in H.R. 4437, the “Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005”

While measures are needed to secure the borders and enforce the immigration laws, H.R. 4437 offers a flawed approach that will harm civil liberties and is unlikely to do enough to resolve the difficult problem of illegal immigration. The ACLU opposes this legislation.

As explained in detail below, H.R. 4437 would expand on policies that have seriously eroded civil liberties. It would further militarize the border and give extraordinary powers to low-level immigration officials within 100 miles of the border to expel without a hearing anyone believed to be a recently arrived illegal immigrant. It expands mandatory detention to apply to all non-citizens arriving at a port of entry or “along” the border.

H.R. 4437 also would erode even further the basic rights of immigrants to judicial review, even by the constitutionally-guaranteed writ of habeas corpus. H.R. 4437 would criminalize all violations of immigration law, with very serious consequences for genuine refugees and others who qualify for humanitarian relief. Finally, H.R. 4437 gives extraordinary powers to detain non-citizens indefinitely without meaningful review, potentially placing many non-citizens in a legal black hole that subjects them to a life sentence after having served a criminal sentence, or, in some cases, without ever having been convicted of a crime.

Militarization of the Border: Enforcement Only Doesn’t Work

Since 1996, the government has consistently taken an “enforcement-only” approach that includes many of the same flawed policies that H.R. 4312 and H.R. 4437 would expand. These include using ever more sophisticated military-style surveillance equipment, physical barriers (including walls, fences, and highways doubling as border barriers), and dramatically increasing the number of Border Patrol agents.

Enforcement only doesn’t work. More money and agents hasn’t led to fewer undocumented immigrants. From 1993 to 2004, the number of Border Patrol agents tripled (from about 4000 to about 11,000) and the amount of spending has gone up five times (from $740 million to $3.8 billion), yet the number of undocumented immigrants doubled (from 4.5 million to 9.3 million).

Enforcement only has led to terrible numbers of migrant deaths. Barriers, more agents, and more militarization of the border has not stopped illegal immigration on the Southwest border, but has instead shifted such immigration to ever more remote and dangerous areas of the border. Migrants crossing at “non-traditional” sectors increased from 29% in 1988 to 64% in 2002. Nearly 2000 have died during that same period (1988 to 2002).

More of the same old solutions will not solve our immigration problems. It will, however, continue to erode the basic civil liberties and human rights not only of migrants, but of legal immigrants and citizens. It will also continue the troubling trend of putting border agencies outside meaningful court oversight that is needed to make sure those agencies observe the law.

“Expedited Removal” - Deportation Without a Lawyer, Hearing, Or Court Review

H.R. 4312 would require the border patrol to pick up and deport – without even an administrative hearing – anyone within 100 miles of the border that an agent thinks is an undocumented immigrant who has been present less than 14 days.

H.R. 4312 expands on the controversial policy of “expedited removal,” which grants extraordinary and unprecedented power to low-level immigration officers to remove individuals without review and without a fair hearing.

Expedited removal is currently being applied to non-citizens arriving at airports with apparently improper documents, to non-citizens arriving by sea, and a few other narrow categories of non-citizens.
Even as currently applied, expedited removal has resulted in terrible mistakes, including its wrongful application to genuine refugees and even to US citizens.
In 2001, the Senate heard harrowing testimony from refugees wrongly subjected to expedited removal, including:

o “Mr. A,” an Algerian refugee, faced persecution from Islamic extremists for his refusal to participate in a plot to kill his employer, the former Algerian president. Because of expedited removal, “Mr. A” was shackled when he arrived and told he would be sent back without review despite his claims;
o A Tibetan Buddhist monk whose comrades (two monks and a nun) were wrongly sent back to China, whom he has not heard from again.

The Senate also heard the case of Sharon McKnight, an American citizen of Jamaican descent who suffers a mental disability who was wrongly put into expedited removal and sent to Jamaica because an inspector mistakenly thought her passport was fake.
Expedited removal should be fixed, not expanded. Because there is no check on expedited removal, expanding it to any person a government official thinks is a recently arrived illegal immigrant within 100 miles of the border will inevitably result in the wrongful arrest and possible deportation of legal residents and even U.S. citizens who are of Mexican-American heritage or “look foreign” to a Border Patrol officer.
Expanding the policy of expedited removal to include persons already within the United States poses grave constitutional problems.

o Zadvydas v. Davis, 121 S. Ct. 2491 (2001): “[O]nce an alien enters the country, the legal circumstance changes, for the Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent
o Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953): “[A]liens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law”

Mandatory Detention: Unjust and Wasteful of Resources

Mandatory detention has resulted in serious injustices, and wasteful use of resources. By definition, mandatory detention designates a group of persons who are detained even if they do not individually pose a risk of flight or danger.
Of the 20,000 beds authorized for FY 2005, a significant percentage were used for mandatory detainees (including, for example, long-term legal residents with minor convictions, even if they have ties to the community and do not pose a risk of flight). For every mandatory detainee, DHS is deprived of a detention bed for someone not subject to mandatory detention, but who is a risk of flight or danger.
Under current law, individuals who arrive without documents, including asylum-seekers, are subject to mandatory detention.
Under the bill, mandatory detention policy will now be extended to all non-citizens who are detained at a port of entry or “along” the border.
Approximately 40% of immigration detainees are held in DHS facilities, while 60% are held in local jails under contract to the federal government – where asylum-seekers and others with no criminal record are generally not segregated from the criminal population.
Conditions in these facilities are often inhumane.

“Mina Burhani,” an Afghan woman who faced persecution from the Taliban regime because she ran a school for girls (when in power, the Taliban opposed the education of girls), and because her sisters were Christian converts, described her detention after fleeing to the United States.

I was brought [to an INS detention facility] in handcuffs and shackled to another person . . . who as also seeking asylum. . . . [T]hey took away my clothes and gave me an orange prison uniform. I was treated like a criminal. I was kept in a room with 12 other women for 23 hours a day. There was no privacy. . . . . We were only taken out of the room for one hour a day; the outdoor recreation area was really like a cage . . . . We could not see the trees or anything other than a small patch of sky through the fencing. Every day, guards woke us up at 6AM and told [us] to stand in a line to be counted.[1]

Mandatory detention is not the only solution to so-called “catch and release” policies. With adequate funding, many more undocumented immigrants could easily be detained under existing authority, which allows detention of anyone deemed a flight risk or danger.

Alternatives to detention, including supervised release and electronic monitoring, have demonstrated success, ensuring the appearance rates of 93% and higher.[2]

Indefinite Detention: Inability to Remove Leads to “Life Sentence” of Legal Limbo

Indefinite detention applies to non-citizens ordered removed from the United States whose countries refuse to accept them or who have no country because they are stateless. DHS officials often refer to these individuals as “lifers.” “Lifers” often come from countries without good relations with the United States, such as Cuba.

While some government officials have labeled indefinite detainees as “vicious criminals” and worse, those detainees with criminal convictions are have already served their criminal sentences and would have been released if they were citizens and would have been released and sent back home if they were non-citizens from most of the countries in the world.

DHS asserts the power to indefinitely detain a non-citizen it has failed to remove from the United States if it decides that person may be dangerous (whether or not the person was ever convicted of a crime).

Indefinite detention is a feature we expect of repressive regimes, not of our own. The government’s authority to detain a non-citizen ordered removed derives from its purpose: effectuating removal. It is grossly unfair to detain a person forever just because the INS has been unable to remove them.

The Supreme Court agreed in Zadvydas v. Davis, 121 S. Ct. 2491 (2001), saying that a law allowing indefinite detention of immigrants who could not be deported would pose a "serious constitutional problem." Id. at 2498. The Court made clear in its analysis that preventive detention would not be allowed in the absence of "strong procedural protections." It explicitly indicated that indefinite detention would not be allowed "broadly [for] aliens ordered removed for many and various reasons, including tourist visa violations." Id at 2499.

HR 4437 does not even come close to satisfying that standard. It would permit indefinite detention of broad classes of non-citizens who cannot be removed, including 1) those with a contagious disease, 2) any non-citizen convicted of one a very long list of “aggravated felonies,” which is something of a misnomer and includes many less serious and non-violent crimes, as well as non-citizens who committed other crimes but whose “mental condition” creates a danger 3) non-citizens whose release would pose foreign policy problems, and 4) non-citizens charged even with very minor immigration violations who, based on secret evidence, are deemed a national security risk.

Persons who have served their sentences should be released under conditions of supervision designed to ensure their ultimate removal should removal become possible in the future.

More Court-Stripping: Slamming Shut the Courthouse Door

Removal from the United States is a severe deprivation of liberty and as such, requires due process protections such as judicial review.
Because of court-stripping legislation passed in 1996 and 2005, current law severely restricts access to the courts for many kinds of immigration claims, including class actions and even ordinary review for many individual claims.
As a result, immigrants who allege the government acted illegally in the removal process have only one shot at review directly in the circuit courts of appeals, many under a very narrow scope of review.
In 2002, then-Attorney General Ashcroft worsened this problem by severely limiting administrative review by the Board of Immigration Appeals, the only internal check on immigration hearings, leading to truncated review by a single board member for most appeals that does not satisfy due process and has effectively placed the burden of error-correction on the federal courts.
HR 4437 would worsen that trend, by bringing second-class review into the last avenue of relief – the courts of appeals – and by manipulating the system to ensure no review at all for many immigrants.

No review at all for temporary residents. Visitors to the U.S. who hold non-immigrant visas (e.g., students, guest workers, etc.) are effectively deprived of any review because they must sign a waiver of their right to an administrative hearing or judicial review to obtain a visa (section 806). (Under current law, such waivers apply only to tourists and other short-term visitors who qualify for travel under the visa waiver program). Revoking the visa is made unreviewable, even by habeas corpus, with only a systemic challenge to the statute available before the U.S. Court of Appeals for the District of Columbia circuit (section 802).
One-judge federal court of appeals review. For those who still have a right to go into federal court, their case is automatically dismissed unless a single appeals court judge , within 60 days, issues a “certificate of reviewability” (section 805). A similar one-judge system for the BIA has lead to numerous mistakes and a string of reversals.

New expedited removal system won’t allow for any review. Expedited removal without a lawyer or a hearing, which the bill would apply to all non-citizens arriving at the border or within 100 miles of the border, also forbids any review by federal courts (section 407).

Many decisions (including decisions made with secret evidence) made unreviewable, even by habeas. The bill makes a number of decisions expressly unreviewable, even on habeas. For example, the bill bars review of: the government’s decision using secret evidence that an applicant for naturalization is involved in a terrorist group or has “endosed” or “espoused” terrorism (section 609), many decisions regarding “voluntary departure” agreements (section 208), and deportation under existing deportation order, even where government’s record-keeping mistakes led to its entry (section 803).

Criminalizing Law-Abiding Immigrants: Overbroad “Illegal Presence” Makes Criminals Out of Non-Citizens Whose Claims for Asylum or Other Relief Languish at DHS
Section 203 of HR 4437 would create a new federal crime of “illegal presence” – defined broadly, as any violation, even technical, of an immigration law or regulation, even without any intent to violate the immigration laws. In essence, the bill makes every immigration violation, however minor, into a federal crime.
Immigration laws and regulations include both civil and criminal penalties.
Removal is a civil process that both determines whether a non-citizen is present legally and whether any relief (such as asylum or humanitarian relief) is available.
Some knowing violations of immigration law (e.g., immigrant smuggling, entering without inspection, failure to register when required by law) are criminal.

Criminalizing all immigration violations would have a number of serious collateral consequences. It would:

Provide broad involvement of state and local police in immigration laws. Many state and local police departments reject involvement in arresting undocumented immigrants for purely civil immigration-related violations because such involvement would drive a wedge between local police and immigrant communities and their legal authority to engage in civil immigration enforcement is not clear. Some police departments have entered into legal agreements with DHS to engage in civil immigration enforcement using specially-trained officers. If civil immigration violations are criminalized, state and local officers may become involved in civil enforcement and deportation through the back door of enforcing the new crime of “illegal presence.”
Penalize immigrants with valid asylum claims or other valid claims for relief. The bill would turn into criminals non-citizens whose claims for immigration benefits have not yet been adjudicated. Persons fleeing persecution who are on a temporary visa may have their visa expire before their asylum claim is adjudicated. Under the bill, they would become criminals subject to imprisonment even if they are subsequently granted asylum. Other forms of relief – like temporary protected status (TPS), granted by the President to countries that suffer natural disaster – give temporary relief from deportation. The government’s decision to grant asylum, TPS or another form of relief would not necessarily wipe away the consequences of even a technical period of “illegal presence,” despite the fact that the immigrant never intended to violate any law and applied for relief in the correct manner.

As drafted, the bill makes the new crime of “illegal presence” an “aggravated felony” for immigration purposes, which would have the further effect of barring ordinary undocumented immigrants (including those with pending applications for relief) from many forms of discretionary relief and greatly restricting judicial review.
The overbroad definition of “smuggling” at section 202 could criminalize the work of churches or refugee organizations acting in good faith. Harboring anyone who is illegally present is made a crime, even with no intent of financial gain. An asylum-seeker with a valid claim may be illegally present for some period, which would make it criminal for churches or refugee organizations to try to help them – treating such organizations the same as smuggling organizations.

Endnotes

[1] An Overview of Asylum Policy: Hearing Before the Immigration Subcommittee of the Senate Judiciary Committee, May 3, 2001, Testimony of “Mina Burhani,” at 1-2.

[2] Vera Institute for Justice, Testing Community Supervision for the INS: An Evaluation of the Appearance Assistance Program, June 7, 2000, Volume I, at 66.