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2003

IRS Taxpayer ID Numbers Available to Illegal Aliens

While Americans anxiously avoid the attention of the Internal Revenue Service (IRS), that agency is providing cover to 9 million illegal aliens in the United States. By providing illegal aliens with a government-issued identity number, used in lieu of a Social Security number, the IRS is subverting the immigration law, undermining national security, and thwarting efforts by other federal agencies to cooperate in homeland security efforts.

These are among the conclusions of "Giving Cover to Illegal Aliens: IRS Tax ID Numbers Subvert Immigration Law," a new report by Ms. Marti Dinerstein, president of Immigration Matters, a public-policy analysis firm in New York, and a fellow at the Center for Immigration Studies.

Dinerstein found that the IRS decided in 1996 to treat illegal immigrants as "resident aliens" based on their "substantial presence" in the U.S., thus rendering them eligible for the Individual Taxpayer Identification Number (ITIN). The ITIN is intended as a substitute to the Social Security number for tax purposes only, but it has turned into an official identity number used by illegal aliens to open bank accounts and, in some instances, obtain drivers licenses.

The 9/11 hijackers benefited from a flourishing market in fraudulent documents catering to America's record-high illegal-alien population by easily acquiring real or fake driver's licenses and Social Security numbers. Now an agency of the federal government is broadening access by illegal aliens to documents that aid in laundering their residency status. In 1999, the Treasury Department's Inspector General for Tax Administration noted this contradiction, saying that the IRS policy of issuing ITINs to illegal aliens "seems counter-productive to the Immigration and Naturalization Service (BCIS) mission to identify and prevent unlawful entry."

The IRS policy, Dinerstein contends, also runs counter to the Social Security Administration's recent efforts to stem unlawful use of Social Security numbers (SSN). That agency has taken steps to limit the purposes for which an SSN can be issued and to better validate the underlying "breeder" documents presented to obtain an SSN. This past summer, the agency mailed out more than 750,000 letters to employers of approximately 7 million workers whose names did not match the SSN provided.

"The IRS is giving cover to illegal aliens by pretending that the ITIN is solely for tax purposes, when in actuality it is commonly used to establish official identity," Dinerstein said. "This policy also violates the USA Patriot Act by withholding information from the USCIS and the Social Security Administration about the fraudulent activity of illegal aliens," she added.

The full report is on line at:
http://www.cis.org/articles/2002/back1202.html

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Special Registration for Persons Already Present in the United States
(Also see below a list of additional 13 Countries added November 22,2002 )

Effective November 15, 2002, nonimmigrant aliens who are nationals or citizens of Iran, Iraq, Libya, Sudan, or Syria who were inspected and last admitted to the United States on or before September 10, 2002, and who will remain in the United States until at least December 16, 2002 must appear before, register with, and provide requested information to the Immigration and Naturalization Service (BCIS) on or before December 16, 2002. Failure to comply will make these aliens deportable.

Who does it apply to?
This Special Registration applies to all males who
. were born on or before November 15, 1986;
. are nationals or citizens of one of the five designated countries, notwithstanding any dual nationality or citizenship; and
. were inspected by the USCIS and were last admitted to the United States as a nonimmigrant on or before September 10, 2002.

Who does it not apply to?
This Special Registration does not apply to any alien who
. holds A or G nonimmigrant classification, or
. is a lawful permanent resident of the United States, or
. has applied for asylum on or before November 6, 2002, or (4) has been granted asylum.

What are the penalties?
A willful failure to comply with this Special Registration constitutes a failure to maintain nonimmigrant status and will render the alien deportable.
In addition, alien who fails to notify the USCIS of a change of address (by filing Form AR-11) shall be guilty of a misdemeanor and shall, upon conviction thereof, be fined not to exceed $200 or be imprisoned not more than thirty days, or both. Irrespective of whether an alien is convicted and punished, any alien who fails to give written notice of his change of address shall be taken into custody and removed from the United States, unless the alien establishes that such failure was reasonably excusable or was not willful. If it becomes necessary to place the alien in removal proceedings, the USCIS may use the most recent address provided by the alien for service of the Notice to Appear.
Finally, if an alien fails, without good cause, to report to an inspecting officer of the USCIS when departing the United States, the alien shall thereafter be presumed to be inadmissible under, but not limited to, section 212(a)(3)(A)(ii) of the Act [security and related grounds].

What is the procedure?
All aliens subject to Special Registration must appear, on or before December 16, 2002, before an immigration officer at a designated USCIS office (list as of 11/02/2002): http://www.ins.usdoj.gov/graphics/lawenfor/specialreg/ALISTOFI.pdf
and:
. answer questions under oath, which shall be recorded;
. present: (a) his travel documents, including passport and the Form I-94 issued upon admission, and any other forms of government-issued identification; (b) proof of residence, such as, but not limited to, title to land or a lease or a rental agreement, proof of matriculation at an education institution, and proof of employment; and (c) such other information as is requested by the immigration officer; and
. be fingerprinted and photographed.

What are other requirements?
All aliens subject to Special Registration shall appear, within 10 days of each anniversary of the date on which they were registered, before an immigration officer and be re-registered.
These aliens shall also comply with all other provisions of Special Registration that became effective on September 11, 2002.
List of Those Already Present In the U.S. Who Must Report for Special Registration Is Expanded (Additional 13 countries)

Excerpted from : (67 FR 70526 11/22/02)

[Federal Register: November 22, 2002
(Volume 67, Number 226)]
[Notices]
[Page 70525-70528]
From the Federal Register Online via GPO Access
[wais.access.gpo.gov]
[DOCID:fr22no02-135]
(a) Scope. Except as provided in paragraph (g), an alien is required to register pursuant to this Notice if the alien:
(1) Is a male who was born on or before December 2, 1986;
(2) Is a national or citizen of Afghanistan, Algeria, Bahrain, Eritrea, Lebanon, Morocco, North Korea, Oman, Qatar, Somalia, Tunisia, United Arab Emirates, or Yemen, who was inspected by the Immigration and Naturalization Service and was last admitted to the United States as a nonimmigrant on or before September 30, 2002; and

[[Page 70527]]

(3) Will remain in the United States at least until January 10, 2003.(b) Dual citizens. This Notice is applicable to any alien who is a national or citizen of a designated country, notwithstanding any dual nationality or citizenship.
(c) Requirement to appear before an immigration officer. All aliens described in paragraph (a) shall, on or before January 10, 2003, appear before an immigration officer at any of the locations listed in the appendix to this Notice.
(d) Information to be provided. All aliens described in paragraph
(a) shall:
(1) Answer questions under oath before an immigration officer, which answers shall be recorded by the immigration officer;
(2) Present to such immigration officer:
(i) The alien's travel documents, including passport and the Form I-94 issued upon admission, and any other forms of government-issued identification;
(ii) Proof of residence, such as, but not limited to, title to land or a lease or a rental agreement, and, if applicable, proof of matriculation at an educational institution, and, if applicable, proof of employment; and
(iii) Such other information as is requested by the immigration officer; and
(3) Shall be fingerprinted and photographed by the immigration officer.
(e) Annual reporting obligations. All aliens described in paragraph
(a) shall appear, within 10 days of each anniversary of the date on which they were registered under this Notice, before an immigration officer at any of the locations listed in the appendix to this Notice and answer questions under oath. All aliens described in paragraph (a) shall comply with all other provisions of 8 CFR 264.1(f)(5)-(9).
(f) Notice of Change of Address. All aliens described in paragraph
(a) shall advise the Immigration and Naturalization Service, through the filing of Form AR-11, of any change of address within 10 days of such change of address. If an alien fails to notify the Immigration and Naturalization Service in writing of a change of address and the new address, as required by section 265(a) of the Act, 8 U.S.C. 1305(a), the alien may be subject to prosecution under section 266(b) of the Act, 8 U.S.C. 1306(b), and may be deportable as provided in section 237(a)(3)(A) of the Act, 8 U.S.C. 1227(a)(3)(A). If it becomes necessary to place the alien in removal proceedings, the Immigration and Naturalization Service may use the most recent address provided by the alien for service of the Notice to Appear.
(g) Inapplicability. The requirements of this Notice do not apply to any alien who:
(1) Is presently in a nonimmigrant classification under section 101(a)(15)(A) or 101(a)(15)(G) of the Act, 8 U.S.C. 1101(a)(15)(A) or 8 U.S.C. 1101(a)(15)(G);
(2) Is lawfully admitted to the United States for permanent residence; or
(3) Has applied for asylum on or before November 22, 2002, or has been granted asylum, under section 208 of the Act, 8 U.S.C. 1158.

Larry D. Thompson,
Acting Attorney General.

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USCIS lacks proper checks on aliens
By Jerry SeperThe Washington Times

Millions of illegal aliens armed with bogus documents enter the United States each year through the nation's 300 ports of entry because of inadequate screening methods by federal immigration officials at the country's airports and border checkpoints, a little-publicized study says.

Commissioned by the U.S. Immigration and Naturalization Service, the study concluded that between 2.95 million and 5.45 million illegal aliens cross undetected every year into the country through guarded ports of entry - with about one in every nine illegal aliens being detained.

The total does not include an estimated 3 million to 5 million illegal aliens who annually cross into the United States through unguarded areas along the border.

"A fair number of people are crossing into the United States each year, much higher than anyone expected," said Palmer Morrel-Samuels, a former University of Michigan research psychologist who conducted the four-month study for the BCIS. "The problem is dramatic and will continue, since the priority on stopping illegal immigration has been low.

"The solution will require a fair amount of time and resources," he said, adding that the study also put to rest a common perception that terrorists sneak into the United States through unguarded border areas with only what they can carry.

"This study suggests they did neither," he said. "It suggests they came into the country carrying all the bags they wanted and presented documents to USCIS inspectors, who looked them over for about a minute and then said, 'Welcome to the United States.'"

The study said USCIS inspectors typically spent "a minute or two" examining passports, visas or border-crossing cards before granting admission to a noncitizen traveler during an initial review process. It said random backup checks by the agency to evaluate the inspectors' accuracy showed that the inspectors had a "very low" rate of success.

Mr. Morrel-Samuels said the study involved a check of individuals who already had been approved by USCIS inspectors for entry. He said they had presented passports or border-crossing cards and had been welcomed into the United States. After the individuals presented their documentation, Mr. Morrel-Samuels and others who worked with him asked for a "secondary,
far-more-rigorous interview that lasted 20 to 30 minutes."

Although the study made no specific recommendations, Mr. Morrel-Samuels said USCIS personnel have to be moved from inspection lanes to desks where they can have immediate access to computers with databases to check those people seeking to enter the United States. He said his secondary inspections found several people with forged documents and criminal records.

"Today's problems and today's solutions call for more modern methods," he said. "The decision to allow someone entry into the United States should not be a judgment made in a minute or two and based largely on intuition."
While the study concluded that a relatively small percent of travelers were improperly granted entry at each of the ports of entry, it said that when compared with the "actual number of travelers, rather than the proportion, the picture is more sobering."

It said the USCIS "missed several million inadmissible travelers" because of existing screening procedures and, as a result, between 2.95 million and 5.45 million illegal aliens who should have been denied entry were allowed into the United States.

USCIS spokesman Russ Bergeron referred inquiries about the study to other agency officials, who did not return calls for comment. He said only that the lengthy study concluded that if the USCIS had more time to spend with those people trying to enter the United States, more illegal aliens could be identified.

Mr. Bergeron said the study had been shared with some news outlets, although he did not elaborate.

But Mr. Morrel-Samuels, president of Employee Motivation & Performance Assessment Inc., said the study found its way only into an obscure trade journal and was never released to other news outlets despite several requests he made of the agency to do so. He said, however, that the USCIS should not have been "embarrassed" by the findings, because "immigration control has never been a high priority and USCIS has never had the necessary resources to do the job."

David Ray, spokesman for the Federation of American Immigration Reform, said the group obtained a copy of the study after being told by Mr. Morrel-Samuels of its "shocking findings." He said the USCIS had refused to make the document public.

"USCIS sought to hush the study because the agency didn't want the public to know how vulnerable we are," Mr. Ray said. "The report highlights the need for strong entry controls and real interior enforcement so that illegal aliens in the United States can be found and deported.

"The study shows that millions of illegal aliens are walking through our front door every year, whether at a port of entry or illegally jumping a fence," he said.

More than 500 million travelers enter the United States yearly at the country's established ports of entry after a brief interview with an USCIS inspector, the study said. It found that 47 of every 5,614 travelers were erroneously granted entry and that the USCIS intercepted between 9.3 percent and 16 percent of those attempting illegal entry.

"Research suggests that illegal immigrants constitute a surprisingly large portion of the current U.S. population, a trend with important political, legal, clinical, cultural and occupational ramifications," the study said. "But despite considerable interest, no one has a precise measurement of how many illegal immigrants enter the United States annually by evading
detection at an airport or traffic checkpoint."

The study included random checks at 20 ports of entry. High-volume ports were sampled five times a day, low-volume ports once a day, and intermediate-volume ports were sampled three times a day. Every inspection lane at every minute of every hour when the port of entry had sufficient staff and a sufficient volume of travelers was included in the sampling frame, it said.

"Although there is much the current work cannot tell us, there is a good deal it does allow us to specify with a fair degree of precision," the study said, adding that the information collected showed that "enhanced vigilance" at the country's established ports of entry was associated with
"better training, stronger organizational commitment and higher levels of employee motivation."

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Judges rule for release of report in visa case
Ex-USCIS lawyer Virtue accused of favoritism in investment program
By Walter F. Roche Jr.
Sun Staff


A federal appeals court ruled yesterday that substantial portions of an investigative report that accuses a former top government immigration lawyer of exercising "improper influence" in the granting of visas to foreign investors must be made public. The ruling, issued in New York City by a three-judge panel of the 2nd Circuit Court of Appeals, said there was "a substantial amount of evidence" against Paul W. Virtue, the former general counsel of the U.S. Immigration and Naturalization Service. The report was completed by the agency's inspector general in 1999, the same year Virtue resigned after a 16-year career.  "The public's interest in disclosure of the report substantially outweighs Virtue's interest in keeping the information private," the 13-page ruling said.  The inquiry focused on allegations that Virtue, now an attorney in private practice in Washington, gave preferential treatment to former USCIS officials marketing an investor visa program to foreign residents.
Under the program, created by Congress in 1990, foreigners can obtain permanent U.S. residency by investing $500,000 to $1 million in U.S. enterprises. As The Sun reported two years ago, several companies with ties to former USCIS officials were quickly formed to market the visa program. The ruling came in a suit brought by Steven E. Perlman, a New York immigration lawyer, who has been critical of the administration of the investor visa program. Critics say that under many of the favored investment visa programs, aliens invested only $100,000 in U.S. businesses, rather than the required amount. They claimed they were borrowing the rest, but in some cases, there was no evidence of any loans. After the practice was discovered, the USCIS required investors to make the full payment within two years. Noting Virtue's role in assisting companies marketing visa programs, the appeals court said, "The degree of wrongdoing alleged is fairly serious, as Virtue's approval of the limited partnership proposals touted by the visa investment companies may have allowed aliens to improperly come to the United States. "Both the amount of evidence and degree of wrongdoing alleged weigh in favor of disclosure." Government lawyers had argued that much of the investigative file was protected under exemptions to the federal Freedom of Information Act and that, in any case, Virtue's personal privacy rights outweighed the right of the public to view the files. "Virtue ... stands on different ground," the ruling said, "because of his status as former USCIS general counsel and the role he played in administering the [investor visa] program. As The Sun reported earlier this year, a two-page summary of the inspector general's report stated that "Virtue repeatedly assisted these questionable investment partnerships to obtain investment visas for their clients."
"Specifically," the summary said, "we found that Virtue made a series of suspect decisions that directly benefited these investment partnerships."

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Immigration plan in works
The Associated Press

MEXICO CITY - The United States is considering giving legalized residency -- but not citizenship -- to as many as 15 percent of undocumented workers, and may increase the number of temporary work visas, the new U.S. ambassador-designate said in interviews published Saturday.

The informal proposals fall far short of the comprehensive immigration accord Mexico had sought, but they represent movement on an issue that is desperately important for millions of Mexicans living and working in the United States and Mexican President Vicente Fox.

The comments from Tony Garza, a former Texas secretary of state, also mark the first movement on the thorny issue of immigration since discussions between Mexico and the United States stalled in the wake of the Sept. 11, 2001, terrorist attacks.

Fox and President Bush have discussed immigration issues repeatedly in the past, and Fox has recently vowed to revive his push to give legal working status to the estimated 8 million to 11 million Mexican citizens living and working in the United States without proper documentation. Bush has generally agreed that a deal should be worked out, but no accord has been reached.

Even if Bush and Fox reach a deal, it would have to be approved by congressional bodies in both nations, and it's unclear whether that would happen. Fox is expected to push for a deal when he reschedules a long-planned visit to Texas, possibly before the end of the year.

Garza, who won Senate confirmation Tuesday and is expected to arrive in Mexico City this week to take up the ambassadorship, told the Mexican news-paper El Universal that "I don't think that citizenship should be included. That can be sought as part of another process, without discrimination."

Garza told the Mexican newspaper Reforma that giving automatic citizenship to those who entered the United States illegally could be construed as discouraging legal migration.

In that interview, Garza said the method for determining who would get legal residency could be based on "the length of their time in the country, their employment record, if they have children in school, if they have a real commitment to the community."

He said such guidelines could cover about 12 to 15 percent of undocumented workers, but he acknowledged that there was no firm proposal on a percentage figure, nor on the length of stay -- perhaps a minimum of 10 years -- that might make undocumented workers eligible.

The key difference appears to be that legalized residents would have less ability and fewer rights than U.S. citizens to sponsor the immigration of large numbers of relatives. Relative-sponsored "family unification" immigration is one of the largest sources in the flow of immigrants to the United States.

The State Department was unable to reach Garza on Saturday to confirm the remarks that he made in the interviews.

In separate remarks made in Washington, D.C., former U.S. Ambassador to Mexico Jeffrey Davidow acknowledged that Mexico won't get everything it wants on immigration, noting "there won't be 'the whole enchilada' " -- a phrase once used by diplomats to describe Mexican proposals for mass legalization and freer movement of workers across the border.

Garza, a former member of the Texas Railroad Commission and the grandson of Mexican immigrants, told El Universal during an interview in Austin that doing nothing about immigration is not an option. "If we don't do anything about the legal status [of undocumented workers], then we will be admitting that we have a nation with a permanent sub-class."

Garza also denied that bilateral relations have cooled since Washington turned its attention to the fight against terrorism, or since Mexico opposed the U.S. push for a stronger U.N. Security Council resolution against Iraqi President Saddam Hussein.

"Those who suggest there was tension, I think are exaggerating," Garza told Reforma in a telephone interview early last week. "There was a serious discussion because it was a serious issue. But the relationship is strong."

Reaction in Texas, home to tens of thousands of undocumented workers, was mixed.

Emilio Garcia, with the Grapevine branch of the League of United Latin American Citizens, said the proposals laid out by Garza are a good idea "if it's done properly, for responsible adults who are willing to work and if there's proper screening. Screening is important in view of what has happened with the terrorist attacks. There's a difference between workers who want to work and those that are here for drug trafficking, for example."

Dee Zuniga, with the Bedford chapter of LULAC, said legal residency isn't enough. She said a citizenship program for undocumented workers is needed.

"If I go to another country and I'm trying to make a life there, I'd want the benefits of being a citizen and be able to go and bring back my external family [from Mexico]," she said.

Jorge Monzon, a resident of Bedford and a legalized immigrant since 1995, agreed that any change in immigration policy should be geared toward citizenship.

"The only thing that's really different when they are not citizens is they are not allowed to vote," said Monzon, who works as a purchasing agent in the H-E-B area. "If they are going to be legally in the U.S. they should be allowed to decide who is going to be the leader. It's hard to live in the community when you can't choose the leader."

Monzon and his wife, Maria, are legalized immigrants. They have three children, all of whom are U.S. citizens. Monzon said he believes the sole reason for determining citizenship of any kind should be an applicant's character.

"They should consider if the person is good and never in trouble. There are a lot of good people that actually never do anything wrong that don't become citizens," Monzon said.

Staff Writers Ben Tinsley and Aetna Smith Contributed to This Report.

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USCIS breaks silence on immigration critics' attacks
By P. SOLOMON BANDA
Associated Press Writer

DENVER (AP) - The acting regional director of the Immigration and Naturalization Service, Michael Comfort, on Wednesday broke his usual silence and said his agency has become the "whipping boy" of immigration critics.

"Not having a clear mandate and having conflicting laws makes us look like idiots," he said during an interview Wednesday with The Associated Press. "And I understand that. But we don't make the laws, we enforce what's there."

Comfort's office recently came under fire from Rep. Tom Tancredo, R-Colo., a critic of the USCIS who supports using troops to seal the nation's borders against illegal immigration.

Tancredo asked Comfort to find an undocumented Mexican honors student seeking financial help in Colorado and send him home. He also asked Comfort to roundup and expel any illegal immigrants standing in line for identification cards at the Mexican consulate in Denver.

But Comfort said it's not that easy because his agency walks a fine line in balancing the rights of immigrants, interests that include businesses looking for cheap labor, and immigration laws partly based on the reunification of families.

"We need to look underneath that and really, it's what do you want as a country? Are you willing to pay the true wage and the cost of that?" he said. "And so far it seems that we're not.

"If I was willing to pay $5 for a head of lettuce, if I paid that would that solve the issue? I don't think so."

As an example of differing views on enforcement, the USCIS opened an investigation into Jesus Apodaca, the undocumented honors student, and then placed it on hold after Sen. Ben Nighthorse Campbell introduced a bill seeking permanent residence status for the student.

Two years ago, residents of Carbondale thwarted efforts by the USCIS to open an office there. The bedroom community that is home to many immigrants who work in nearby Aspen, shot down the plan with a lawyer hired by a group from that tony ski resort town.   "As a country, we need to have a discussion and part of what Tom Tancredo has done is he has started, in some way, that discussion," he said. "Whether we will finish that discussion I would doubt, but we need to have it."

Since the terrorist attacks in September 2001, the agency's focus has shifted to homeland security. In September, the USCIS and other agencies cracked down on more than 100 people who were using fake Social Security numbers to work at Denver International Airport.

"Before the attacks, we would have been focusing on the employers who hired them," he said.

Comfort oversees BCIS' operations in Colorado, Wyoming and Utah. In the fiscal year ending Sept. 30, the agency processed 33,000 applications for adjustment of status, provided information to 116,000 who walked into their office and checked status of 366,000 people arriving at Denver International Airport.

The agency also found 8,500 people who could face deportation because they are here illegally.

Offices throughout the states also respond when police find crammed moving trucks, overloaded vans and other unsafe conditions in illegal immigrant smuggling.

"We say within the agency we're doing God's work, and we are," he said. "We are taking care of people. We are saving lives, we are allowing people, based on the will of our people to leave a situation that is not good for them and come to our country to find a better way. If you're not supposed to be here, then we're going to get you out.

"Our culture inside the agency is that were not going to brag about that... we're going to take our lumps and we're going to keep doing our jobs."

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State Department announces termination of interim 20-day "hold" for certain visa applications

The State Department recently announced the termination of the interim 20-day "hold" period for certain nonimmigrant visa applications (those on the Ashcroft "List of 26"). As a result all future nonimmigrant visa applications as well as any applications currently in the 20-day "hold" queue will now be processed to conclusion unless subject to any other special clearance procedures.

The 20-day "hold" was merely a precautionary measure that the DOJ requested to ensure that visa applicants did not slip through the cracks after 9/11. As a practical matter this change will have no bearing on those applicants from predominantly Muslim countries. The lifting of the 20-day "hold" is likely to have little or no impact because the procedures to implement security advisory opinions (SAO) remain in effect. Consular posts must continue to wait for an affirmative response from DOS prior to issuance of a visa. Although it is hoped that the implementation of enhanced agency data sharing will improve response times to SAO requests from appropriate government agencies, visa applicants are likely to continue to encounter lengthy delays in the overall visa application process.

Also, all other special clearance procedures, including Illegal Technology Transfer (TAL) cases and "Visas Condor" cases remain in effect and unchanged.  The lifting of the 20-day "hold" will not benefit TCN processing in Canada or Mexico. Citizens from the Ashcroft "List of 26"(which may be expanded to 33) countries are still unable to apply for nonimmigrant visas at border posts and are required to apply at home.

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HAVE WE LEARNED THE LESSONS OF HISTORY?
American Immigration Law Foundation IMMIGRATION POLICY FOCUS
World War II Japanese Internment and Today's Secret Detentions
By Stanley Mark, Suzette Brooks Masters and Cyrus D. Mehta


Executive Summary
In times of war or threats to national security, the delicate balance we strive to achieve as a nation between liberty and security inevitably tips towards security, and civil liberties tend to be compromised. In the aftermath of the horrific events of September 11, 2001, our leaders have begun exercising extraordinary powers to ensure our collective safety, sacrificing the personal liberties of some, particularly immigrants, in the process. Using invigorated surveillance and enforcement powers to promote homeland security, President Bush, Congress, and the Justice Department have selectively targeted and indefinitely detained significant numbers of Muslim, Middle Eastern, and South Asian non-citizen males living in the United States, stripping them of the most basic and fundamental due process protections. This increased scrutiny has caused significant apprehension among other immigrants, too.

There is no denying that the terrorist threat we face is grave and that methods need to be devised to protect us from harm. However, history teaches us that ill-conceived government policies during wartime, such as unfairly targeting certain persons because of their race, national origin, or religious beliefs, does not make us safer. Instead, it weakens our core values and alienates allies who can help us fight terrorism. Despite President Bush's soothing words urging Americans to be tolerant and to distinguish between immigrants and terrorists, Muslim, Arab, and South Asian men living in the United States were victimized in the weeks following the attacks, NOTE 2 and the Bush Administration has pursued enforcement policies founded on religious, racial and ethnic profiling.

While there have been a number of dark periods in the last hundred years when our prejudice clouded our reason, and our hysteria and fear fueled division rather than unity - from the Palmer raids in 1920 to the spying and blacklisting during the Cold War - none is more glaring and a source of greater shame than the internment from 1942 to 1946 of 120,000 persons of Japanese ancestry living in California, Washington, and Oregon. Nevertheless, here we are, a mere sixty years later, equating ethnicity and religion with collective guilt, dispensing with the need for individualized suspicion of wrongdoing, engaging in secret detentions, and abrogating the civil liberties of those detained.

Early court decisions have weighed in on the side of liberty, but history tells us it is too early to tell whether the Supreme Court will allow this overreaching by government in the aftermath of September 11 th to stand. Neither Congress nor the judiciary objected to the internment measures taken during World War II. Rather, they paid deference to the government's asserted need to curtail the liberties of people of Japanese ancestry and failed to scrutinize the basis for this alleged military necessity. It took nearly thirty years for a formal apology to be issued to those interned. NOTE 3 Our traditional system of checks and balances failed us then, and it could fail us again.

Chief Justice William Rehnquist, in his 1998 book All the Laws But One: Civil Liberties in Wartime, argues that historically presidents have pushed the limits of their legal authority during wartime, restricting civil liberties more than in peacetime. And he sees the trend continuing. NOTE 4 In a similar vein, Harvard Law School Professor Christopher Edley points out that the odds are stacked against vocal criticism of wartime excesses: wartime courts usually ratify security measures adopted by the political branches; oversight by Congress is unlikely to be potent; and the public can only denounce what it knows about. The way the war on terror is shaping up, there is much that the public will never know about and thus be unable to decry. NOTE 5 It remains to be seen whether the Supreme Court will fight this inexorable tendency or whether history will proclaim this period another sorry chapter in the unfolding of our national story. In anticipation of these inevitable cycles of civil liberties erosion, should institutional mechanisms be set in motion to better protect our individual rights in times of national crisis?
We hope that by revisiting the grievous errors committed by our political leaders and Supreme Court justices in the 1940s, and by contrasting those errors with more recent yet reminiscent measures adopted since September 11th, that policymakers will work harder to avoid repeating the mistakes of history.


INSTITUTIONAL GUILT: THE INTERNMENT OF JAPANESE AMERICANS
War with Japan Unleashes Hysteria and Mass Detentions
On December 8, 1941, one day after the bombing of Pearl Harbor by Japan, the United States declared war on Japan. President Roosevelt issued Executive Order No. 9066 on February 19, 1942, NOTE 6 authorizing the Secretary of War and certain military commanders "to prescribe military areas from which any persons may be excluded as protection against espionage and sabotage." With this broad authorization to banish from military areas anyone deemed dangerous to the national defense began the largest deprivation of liberty in United States history - the imprisonment in desolate internment camps, NOTE 7 without individual trials or hearings, of 120,000 Americans NOTE 8 and permanent residents who, by virtue of their Japanese ancestry, contained "enemy race" blood, including women, children and the elderly.

The military applied the Order selectively and en masse to residents of Japanese origin. The political leadership at the time ascribed to the view that residents of Japanese descent were incapable of true assimilation and therefore inherently disloyal. The fact that the detainees then living on the West coast of the United States had emigrated from Japan out of choice and had made their lives there for sixty years NOTE 9 was ignored, along with the need for any individualized evidence of wrongdoing to justify relocation and detention. In the end, no persons of Japanese ancestry residing in the United States were ever charged or convicted of espionage or sabotage, greatly undermining the credibility of those who used race as a lens through which to view national security matters.

All Branches of Government Supported Internment
All branches of government legally sanctioned this wholesale deprivation of fundamental constitutional rights and civil liberties. Congress ratified Executive Order 9066 in March of 1942, NOTE 10 the military continued to issue proclamations pursuant to the Executive Order, NOTE 11 and the Supreme Court upheld the evacuation and internment of both citizens and permanent residents of Japanese ancestry in a series of cases decided in 1943 and 1944. Two of those cases in particular, Hirabayashi v. United States and Korematsu v. United States, provide great insight into the wartime mentality prevalent at the time and still resonate today as we struggle with racial stereotyping and deprivations of rights in the aftermath of September 11th.

Gordon Hirabayashi, an American citizen, was living in Seattle in 1942 and was subject to the wartime orders requiring all persons of Japanese ancestry, whether citizen or not, to observe a curfew and report for processing in connection with exclusion from the military area. Hirabayashi refused to honor the curfew or to report to the control station because he believed that the military orders were racist and unconstitutional. The Supreme Court in Hirabayashi v. United States unanimously affirmed his conviction, and accepted the government's position that the curfew was justified by military assessments of emergency conditions existing at that time. NOTE 12 Chief Justice Stone gave credence to the military's viewpoint that citizens of Japanese descent would have a great attachment to the Japanese enemy, observing that the Japanese who had come to the United States had not assimilated with the "white population." Ironically, he also acknowledged that federal legislation had denied them the means to obtain citizenship by naturalization.

The following year, a majority in a sharply divided Supreme Court in Korematsu v. United States applied the same military emergency rationale to uphold the exclusion of all citizens of Japanese ancestry from the West Coast. NOTE 13 Justice Black's majority opinion supported the exclusion, relying on the military's judgment that threats of invasion, espionage and sabotage existed and constituted "military necessity" for exclusion, while ignoring the fact that Imperial Japan was unlikely to be able to attack the West Coast after the defeat of Japan's navy at the Battle of the Midway in June 1942.
By failing to question the military's basis for reliance on stereotyping in lieu of individualized investigations, Justice Black sidestepped the race issue entirely.

"It is said that we are dealing here with the case of imprisonment of a citizen in a concentration camp solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States. Our task would be simple, our duty clear, were this a case involving the imprisonment of a loyal citizen in a concentration camp because of racial prejudice. Regardless of the true nature of the assembly and relocation centers -- and we deem it unjustifiable to call them concentration camps with all the ugly connotations that term implies -- we are dealing specifically with nothing but an exclusion order. To cast this case into outlines of racial prejudice, without reference to the real military dangers that were presented, merely confuses the issue.

Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures, because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily, and finally, because Congress, reposing its confidence in this time of war in our military leaders -- as inevitably it must -- determined that they should have the power to do just this. There was evidence of disloyalty on the part of some, the military authorities considered that the need for action was great, and time was short. We cannot -- by availing ourselves of the calm perspective of hindsight -- now say that at that at time these actions were unjustified." NOTE 14

In his dissent, Justice Murphy characterized the majority opinion as legalized racism and attacked the questionable qualification of military experts to make ethnic and sociological value judgments regarding the effects of racial ancestry. Murphy further argued that the eleven months spent to evacuate Japanese Americans was ample time to implement an orderly inquiry into the loyalty of those evacuated. As was later revealed, the Western Defense Command did in fact have enough time to determine loyalty but chose not to because of racist beliefs. Government officials and attorneys withheld this evidence from the federal courts.

Justice Jackson, in his powerful dissent, warned of the dangers of unquestioned judicial deference in times of crisis, deference that weakens our constitutional protections and the very fabric of our society. "Much is said of the danger to liberty from the Army program for deporting and detaining these citizens of Japanese extraction. But a judicial construction of the due process clause that will sustain this order is [a] far more subtle blow to liberty than the promulgation of the order itself. A military order, however unconstitutional, is not apt to last longer than the military emergency. Even during that period a succeeding commander may revoke it all. But once a judicial opinion rationalizes an order to show that it conforms to the Constitution, or rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination ...The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need... A military commander may overstep the bounds of constitutionality, and it is an incident. But if we review and approve, that passing incident becomes the doctrine of the Constitution..." NOTE 15

Detention Finally Ends
The Supreme Court did reach the detention issue but did not reach the constitutional issue. Mitsuye Endo, a U.S. citizen who obeyed the exclusion order, asserted her loyalty, and challenged her continued detention. After her arrival at camp, she filed a petition for a writ of habeas corpus demanding her re lease in July 1942. Almost two and half years later, the U.S. Supreme Court ordered her belated release from the camp at Tule Lake, California. Because of her loyalty, she could not be subjected to an harassing leave procedure that amounted to an indefinite detention of a loyal citizen against her will.

Justice Douglas spoke for the majority and found that the War Relocation Authority (WRA), a civilian agency responsible for operating the camps, exceeded its authority granted by the Congressional Act of March 21, 1942 (Public Law 77-503) and Executive Orders 9066 and 9102 (which established the WRA). Justice Murphy concurred and labeled the detention of citizens as another unconstitutional form of racism inherent to the WRA evacuation program. Justice Roberts concurred in the result but not with this rationale. Although Congress did not appropriate a specific budget item for detention, both branches of government had detailed knowledge of the en masse detention and thus are responsible. He wanted the Court to face Endo's detention as a constitutional issue.

The Harsh Indictment of History
The Hirabayashi and Korematsu decisions have never held an honored place in our history. Although never overruled, they have been criticized by journalists, historians and scholars for not critically assessing the emergency at the time and for upholding the racial prejudice inherent in General DeWitt's orders. NOTE 16 A presidential apology would not be issued until 1976 and a commission created by Congress to investigate the internment until 1980. NOTE 17 Eight years later, Congress also passed the Civil Liberties Act of 1988, popularly known as the Japanese American Redress Bill, which formally apologized for the camps, mandated the establishment of a trust fund for educational and humanitarian purposes, and provided compensation for 60,000 surviving Japanese American citizens and resident aliens who were interned. The reparations period ended in 1998.

Eventually, both Mr. Korematsu and Mr. Hirabayashi were able to vacate their convictions in 1984 and 1987 respectively, based on evidence not available at their original trials but later found in the government's own files. NOTE 18 This new evidence, amassed during the investigation conducted by the Commission on Wartime Relocation and Internment of Civilians, established that the government had engaged in misconduct by destroying the original DeWitt Final Report, altering the text of government briefs, and suppressing intelligence reports.

The Commission concluded that there was substantial credible evidence from a number of federal civilian and military agencies contradicting the Final Report of General Dewitt, Final Report: Japanese Evacuation from the West Coast 1942, and its premise that military necessity justified exclusion and internment of all persons of Japanese ancestry without regard to individual identification of those who may have potentially been disloyal. NOTE 19 The original version of the report did not purport to rest on any military exigency, but instead rested on the assumption that it would be impossible to separate the loyal from the disloyal because of traits peculiar to citizens of Japanese ancestry, and that all would have to be evacuated for the duration of the war. NOTE 20 The Supreme Court, in upholding the conviction in 1943, had deferred to the government's military necessity arguments, based on DeWitt's final but doctored report. NOTE 21

The Commission on Wartime Relocation and Internment of Civilians found that "broad historical causes which shaped these decisions [exclusion and detention] were race prejudice, war hysteria and a failure of political leadership" and that, as a result, "a grave injustice was done to American citizens and resident aliens of Japanese ancestry who, without individual review or any probative evidence against them, were excluded, removed and detained by the United States during World War II." NOTE 22
The Supreme Court's deference to the judgment of the military and exercise of judicial restraint were tantamount to total abdication of its role in the face of very serious constitutional issues affecting the lives of an entire racial minority. By applying strict scrutiny and upholding the racial classification, the Court permitted a harsh discriminatory result based on racial ancestry to stand, just as Justice Jackson warned in his Korematsu dissent. Will the Court make that mistake again when it reviews the actions taken by the government in combating terrorism after September 11th?

MORE COLLECTIVE GUILT: DETENTIONS OF ARABS AND MUSLIMS
Secrecy, Indefinite Detention, and Racial Stereotyping
After Pearl Harbor, the Roosevelt administration implemented policies that blatantly resulted in the exclusion of people of Japanese ancestry. Admittedly, no such policy aimed to exclude has been aimed directly at a nationality in the aftermath of the September 11 th attacks. Yet, despite commendable rhetoric by President Bush warning against intolerance of and violence against Arab Americans and Muslims living in the United States, his administration has implemented policies that fly in the face of his admonitions. In fact, since September 11, 2001, the Department of Justice, under Attorney General John Ashcroft, has arrested, detained and, in some cases, deported, over 1,200 people with Arab or Muslim backgrounds under a veil of complete secrecy. NOTE 23 Not even the names of those arrested have been released to date.

The adoption by the Justice Department of regulations and policies that make it easier to detain non-citizens indefinitely and deport them was a response to the fact that the nineteen alleged 9/11 hijackers were all men, citizens of Middle Eastern nations, living in the U.S. on temporary visas or as visa overstays prior to the attacks. Although on their face the new regulations are not directed at any particular nationality, the Department of Justice, largely through the Immigration and Naturalization Service, has used these expanded powers to selectively focus its investigations on persons of Arab, South Asian or Muslim backgrounds. NOTE 24 A report by Human Rights Watch released in August 2002 documents that most of the arrests were made because of the person's nationality and religion. According to this report, not a single person who has been arrested has been linked to the terrorist attacks of September 11.

The use of racial and religious profiling as a national security weapon has been tried before. It was unsuccessful during World War II - none of the interned U.S. residents of Japanese ancestry were ever charged with sabotage or espionage - and it is just as likely to be unsuccessful now.

The Bush Administration's Counterproductive Enforcement Blitz
Over the last year, the Justice Department has announced a series of enforcement initiatives that selectively target Arabs, South Asians and Muslims living in the United States and deprive them of the most basic due process protections. These measures have not only failed to improve our national security, but have antagonized the very immigrant communities who are in the best position to assist the government in rooting out terrorism.

A mere nine days after the attacks, the Justice Department amended existing regulations to increase from one to two days the time the Immigration and Naturalization Service can detain a non-citizen without filing charges, NOTE 25 and allow for the extension of this period for an unspecified "reasonable" additional time in the event of an emergency or other extraordinary circumstances.

After this rule took effect, there were reported instances of delays in charging non-citizens with immigration violations. NOTE 26 A day later, on September 21st, Chief Immigration Judge Michael Creppy, at the direction of the Attorney General, issued a directive to all immigration judges ordering that in certain "special interest" cases, which were not defined, "(t)he courtroom must be closed... no visitors, no family, and no press." "This restriction," the directive continues, "includes confirming or denying whether such a case is on the docket." An USCIS rule prohibiting public disclosure by any facility, whether public or private, of any information regarding detainees only heightened the extraordinary secrecy already surrounding all of these proceedings. NOTE 27 It is estimated that over 1,200 non-citizens, mostly from Pakistan, Egypt and Yemen, have been incarcerated in these special interest cases.

Just over a month later, the Justice Department promulgated a regulation permitting USCIS prosecuting attorneys to override the decision of an immigration judge to release a non-citizen on bond when the USCIS sets bond at $10,000 or more. NOTE 28 Thus, if the USCIS does not like an immigration judge's decision, it need only file a notice that it intends to appeal to obtain a stay and extend the detention. Even if the Board of Immigration Appeals upholds the immigration judge's decision, the USCIS may certify the decision to the Attorney General until he has made a final decision. This may result in the non-citizen's indefinite continued detention.

Another technique used by Justice to circumvent due process has been to detain an unknown number of citizens NOTE 29 and non-citizens as "material witnesses." These detainees need not be charged with any violations, under the pretext that they have information relating to the terror attacks. One federal judge has released such a detainee, a young Muslim male, on the ground that the detention was unconstitutional, NOTE 30 but the practice remains unchecked and Human Rights Watch has identified 35 individuals held as material witnesses. NOTE 31

To compound the damage already done by closed hearings and indefinite detention, the Justice Department now permits the government to eavesdrop on the conversations between lawyers and their clients in federal custody, including people detained for immigration reasons but not charged with any criminal offense, if there is a "reasonable suspicion" that information might be exchanged that could potentially deter future violent acts. NOTE 32

The Bush Administration's "war on terror" has been implemented domestically by mass detentions of non-citizens conducted in secret, none of which, to date, has unearthed a link to terrorism, and by an almost exclusive enforcement focus on Middle Eastern and Muslim nationals. These have been designated as "special interest" cases. Even if one may argue that the detentions were justified because of visa violations, immigration laws have been used to detain non-citizens so as to bypass the greater safeguards afforded to people subject to a criminal prosecution.

The constitutional protections given to people under criminal law would include a requirement of probable cause for arrest and the right to court-approved counsel. Prior to September 11, minor visa violations would not have resulted in prolonged periods of detention. After September 11, the immigration laws have been used to facilitate a form of preventive detention, which is to arrest first and investigate later to uncover some violation. It is generally the other way around in criminal enforcement -- one can only be arrested after probable cause if found that the individual was involved in criminal activity. Once the immigration violation is uncovered, the non-citizen can potentially be detained indefinitely under the government's expanded powers. However, the purpose of the detention is not for the visa violation but to probe into the noncitizen's potential involvement in terrorist activity or to get rid of the noncitizen from the country regardless of family ties or citizen children.

Furthermore, since last year, 8,000 young Arab and Muslim immigrants have been sought for "voluntary" interviews by the Federal Bureau of Investigation. NOTE 33 In addition, out of the more than 300,000 foreign nationals who have remained in this country following a deportation order, the Justice Department has prioritized the deportation of 6,000 non-citizens from countries where Al Qaeda support is strong. NOTE 34 And, in its most recent initiative, Justice promulgated an alien registration rule that would require the registration, fingerprinting and photographing of nationals or citizens of Iran, Iraq, Libya, Sudan and Syria. NOTE 35 Violation of these reporting rules could result in loss of status, deportation and inclusion in a national crime database. NOTE 36

What is most remarkable about these administrative rules is that they have been utilized more frequently and effectively than the mandatory detention provision in the USA Patriot Act, which authorizes the Attorney General to detain, without a hearing and without a showing that the person poses a threat to national security or a flight risk, non-citizens whom the Attorney General has "reasonable grounds to believe" run afoul of the various anti-terrorism provisions of the Immigration and Nationality Act. NOTE 37

However, under the Patriot Act, charges must be lodged within seven days. Not surprisingly, the Bush Administration has issued new rules for use in the "special interest" cases giving the Attorney General even broader powers than those approved by Congress in the Patriot Act. Thus, by executive fiat, the Bush Administration has circumvented the will of Congress and arrested non-citizens without bringing charges. None of these arrests, to date, has unearthed a link to terrorism. NOTE 38
As of this writing, at the request of certain Members of Congress, the General Accounting Office (GAO) has begun an investigation into a number of anti-terrorism measures and their potential impact on civil liberties, including the detentions after September 11th, the questioning of the 8,000 immigrant males, and the monitoring of attorney-client conversations. The GAO final report will be presented to Congress.

If there is one lesson that should have been learned from our country's shameful Japanese internment episode during World War II it is that an enforcement and security policy that relies on racial stereotyping rather than case-by-case investigative work is doomed to failure. Profiling is easy and feels good but has been proven again and again not to be an effective investigative strategy. Such an approach casts too wide a net, lulls us into a false sense of security by making facile assumptions about our enemies, alienates entire communities of people who could be great sources of intelligence, and erodes our civil liberties and our constitutional principles.

Courts Have Held the Line on Secrecy
Media groups and other public interest organizations have challenged the government's secret and indefinite detention policies in court, claiming a violation of their First Amendment rights. The initial decisions appear promising, but it remains to be seen whether the courts will protect those persons who sue the government individually for violating their rights NOTE 39 and whether the Supreme Court will rule on these issues. Two forces are currently militating against the Supreme Court taking a strong stand against the government on these rights violations. First, the wartime tendency of the judiciary to defer to the executive is likely to come into play. Second, under the plenary power doctrine, courts have traditionally deferred to Congress and the executive in the exercise of their authority to regulate the admission and residence of non-citizens in this country. NOTE 40

Fortunately, in the recent challenges brought by the media, the courts have rejected the government's arguments justifying secret detention and closed deportation hearings. Just as General DeWitt justified the internment of Japanese Americans after Pearl Harbor with sweeping, unsubstantiated assertions, so too have FBI officials presented boilerplate affidavits to the courts to justify the secrecy of these hearings involving Arab and Muslim non-citizens. They argue in these affidavits that open hearings could lead to setbacks in the government's terrorism investigations and stigmatize "special interest" detainees should they ultimately be found to have no connection with terrorism. NOTE 41

For the moment, the courts seem persuaded that open hearings are necessary to ensure governmental fairness given the gravity of deportation, which can lead to permanent banishment from the United States, and the fact that non-citizens in deportation hearings do not have the same level of rights as criminal defendants. Therefore, media and other public interest groups may be their only protection against governmental excess.

The most important court decision to have emerged recently is the Sixth Circuit Court of Appeals decision in Detroit Free Press et. al v. Ashcroft, NOTE 42 which recognizes the media's First Amendment right to attend a deportation hearing of a "special interest" detainee. Without prior notice to the public, the courtroom security officers announced that the hearing was closed to the public. The detainee was denied bail and has been in government custody ever since. The plaintiffs sued the government in federal district court to claim a public right of access to the removal hearing under the First Amendment of the Constitution. The Sixth Circuit Court of Appeals affirmed the lower court's ruling in favor of an open deportation hearing. The following introductory remarks of Judge Keith's opinion, writing for a three-judge panel, are worth noting:

The Executive Branch seeks to uproot people's lives, outside the public eye, and behind closed doors. The First Amendment, through a free press, protects the people's right to know that their government acts fairly, lawfully, and accurately in deportation proceedings. When government begins closing doors, it selectively controls information rightfully belonging to the people. Selective information is misinformation. NOTE 43

The court argued that the deferential standard accorded under the plenary power doctrine to substantive immigration law does not necessarily apply to non-substantive immigration law and found the Creppy directive to be non-substantive. Even if the government presented a compelling interest to close hearings, the court held that the Creppy directive was not narrowly tailored, and the government failed to address why it could not close hearings on a case-by-case basis.

The government's "mosaic intelligence" theory - where an individual piece of information is not of obvious importance until pieced together with other pieces of information - was rejected by the court as being too speculative. The court also upheld the media's First Amendment access to a deportation hearing on grounds that deportation hearings have been traditionally open, and after the massive investigations following September 11, open hearings serve a "therapeutic" purpose as outlets for "community concern, hostility and emotions."

This ruling in the Sixth Circuit Court of Appeals came shortly after a similar positive ruling from a lower court, in North Jersey Media Group, Inc. v Ashcroft, NOTE 44 affirming the media's First Amendment access to a deportation hearing. The government appealed the New Jersey case to the Third Circuit Court of Appeals, seeking a stay of the District Court's order, which was not granted. The government turned to the U.S. Supreme Court, which, without comment, granted the government's emergency request for a stay.

In a separate line of attack, several organizations have sued the government to obtain release of the names of non-citizen detainees under the Freedom of Information Act. In Center for National Security Studies, et al v. U.S. Department of Justice, NOTE 45 a federal district court in Washington, D.C. held that "secret arrests are `a concept odious to a democratic society' and profoundly antithetical to the bedrock of values that characterizes a free and open one such as ours." It rejected the government's argument that releasing the names would deter the detainee from cooperating, hamper the government's investigation, and allow terrorist organizations to interfere with pending proceedings by creating false and misleading evidence. The Court ordered the release of the detainee names as well as those of their attorneys. However, it upheld the government's request to withhold the dates of arrests, detention and release, as well as the location of arrest and detention.

CONCLUSION

Who Will Preserve Our Liberties?
Ethnicity and religion should never be used as a proxy for individualized suspicion or guilt. Not too long ago, the Supreme Court in Korematsu upheld an emergency rationale made by the military to uphold the exclusion of citizens and immigrants of Japanese ancestry from the West Coast. To the nation's great embarrassment, this military "justification" was found to be nothing more than racial prejudice. Despite the pressure to ratify government action at times of conflict and crisis, the judiciary must not allow our nation to commit such acts of deprivation against American residents by virtue of their nations of origin or religious beliefs.

As the Detroit Free Press case makes clear, courts will scrutinize the non-substantive aspects of immigration law, such as the Creppy directive, and will strike some of them down as unconstitutional. To date, lower courts have been curbing the egregious enforcement excesses of the Bush Administration. In defending its enforcement powers, the government can use national security arguments or the plenary power doctrine to justify its rules and policies over non-citizens. It is time to cast aside a doctrine which gives the government unreviewable power over immigration matters, NOTE 46 was first formulated for use against Chinese immigrants more than a hundred years ago, NOTE 47 and was reaffirmed during the McCarthy era. NOTE 48
But can we trust the Supreme Court to uphold these lower court rulings? Chief Justice Rehnquist, in All the Laws But One: Civil Liberties in Wartime, suggests that while the internment of citizens of Japanese ancestry may not have been justified, the internment of Japanese immigrants may have been. He cites a little known law enacted in 1798, the Enemy Alien Act, which authorizes the President, during a declared war, to detain, expel, or otherwise restrict the freedom of any citizen 14 years or older of the country with which the United States is at war. While these are only the Chief Justice's private reflections in a history book, and the war on terrorism remains an undeclared war, it is hoped that Chief Justice Rehnquist and his colleagues will follow a long line of judicial precedents after 1798 that have recognized the due process rights of non-citizens living in the United States.

We learned from the Japanese internment experience that unquestioned judicial deference compounded grievous errors. Armed with that knowledge, today's courts must not allow the government's sweeping rhetoric regarding national security to be used to curb non-citizens' liberties without uncovering the facts, and any prejudice, behind the rhetoric. The government must present a compelling case against specific individuals, whatever their ethnic or religious background, suspected of terrorism, rather than engage in over-inclusive roundups of "enemy aliens" and persons of "suspect nationalities."

This paper is authored for the American Immigration Law Foundation by Stanley Mark, Suzette Brooks Masters, and Cyrus D. Mehta. The views expressed are those of the authors and do not necessarily reflect the position of the Foundation.


ENDNOTES
. Stanley Mark is Program Director at the Asian American Legal Defense and Education Fund (AALDEF). He has represented and assisted Japanese Americans asserting claims for redress compensation, and has testified before the U.S. Commission on Wartime Relocation and Internment of Civilians. Suzette Brooks Masters is a senior program officer at the International Center for Migration, Ethnicity and Citizenship at New School University. She serves on the board of directors of the National Immigration Forum and the Lower East Side Tenement Museum and writes frequently on immigration topics. Cyrus D. Mehta practices immigration law in New York City. He is First Vice Chair of the American Immigration Law Foundation and chair of the Immigration and Nationality Law Committee of the Association of the Bar of the City of New York.

. More than 70 violent incidents against Asian Americans were reported to the Asian American Legal Defense and Education Fund within three weeks of the 9/11 attacks. Since the 9/11 tragedy, more than 200 incidents of anti-Asian violence has been reported to AALDEF, with over 177 cases documented by AALDEF; many were Muslims. About 45 cases involved Asian Indians; 23 cases involved Pakistani Americans; 3 involved Filipino Americans; 4 involved Iraqi Americans; and 5 involved Palestinian Americans. About 11 cases involved racial profiling or police brutality or police misconduct. Several involved Sikhs who wear turbans.

. President Gerald Ford issued a national apology in 1976. Presidential Proclamation No. 4417, 41 Fed. Reg. 7741 (1976).

. William Rehnquist, All The Laws But One: Civil Liberties in Wartime, 1998, Chapter 18.

. Christopher Edley, "A U.S. Watchdog for Civil Liberties," The Washington Post, July 14, 2002 at B7. See also, Christopher Connell, Homeland Defense and Democratic Liberties: An American Balance in Danger? Carnegie Corporation of New York, 2002, page 9.

. 7 Fed. Reg. 1407.

. The term "concentration camp" has also been used in describing the internment camps. It was used by the Joint Chiefs of Staff in a classified memo dated February 12, 1942 and in other documents. Michi Weglyn, Years of Infamy (New York, 1976), page 175.
. About two thirds of those interned were American citizens.

. Significant numbers of Japanese laborers immigrated to the United States in the 1890s to work in agriculture, mining and railroads. By 1909, 40% of California's agricultural workforce was Japanese. Carey Mc Williams, Prejudice: Japanese Americans-Symbol of Racial Intolerance (Boston: Little Brown, 1944). Japanese immigration was restricted in 1907 and, by 1924, the Japanese were barred entry to the United States as "aliens ineligible for citizenship." Immigration Restriction Act of 1944, 43 Stat. 153. It was not until 1952 that the Japanese were permitted to become US citizens and until 1965 that Asians were granted the same immigration privileges as Caucasians. These restrictive immigration laws laid the groundwork for discriminatory state legislation that prevented foreign born Japanese from owning land, possessing firearms, procuring fishing licenses, and holding government jobs. The Supreme Court finally overturned these restrictions in 1948 in Oyama v. California, 332 U.S. 633, and Takahashi v. Fish and Game Commission, 334 U.S. 410.

. Public Law 77-503, 56 Stat. 173, 18 USCA 97a.

. General DeWitt, the designated Military Commander of the Western Defense Command, issued Public Proclamation No. 1 pursuant to Executive Order 9066, which stated that "the entire Pacific Coast_subject to espionage and acts of sabotage, thereby requiring the adoption of military measures necessary to establish safeguards against such enemy operations." Thereafter, several other proclamations were issued, including Exclusion Order No. 34, providing that all persons of Japanese ancestry be excluded from areas specified as Military Area No. 1.

. See Hirabayashi v. United States, 320 U.S. 81 (1943).

. See Korematsu v. United States, 323 US 214 (1944).

. Id. at 223-224.

. 323 U.S. 214 at 245-246.

. See generally, Eugene Rostow, "The Japanese American Cases - A Disaster", 54 Yale Law Journal 489 (1945).

. Pub. L. No. 96-317.

. See Korematsu v. United States, 584 F. Supp. 1406 1984); Hirabayashi v. United States, 828 F.2d 591 (9th Cir. 1987).

. Korematsu, 584 Fed. Supp at 1416.

. General John L. DeWitt, the military commander in charge of the Western Defense Command, wrote and issued the Final Report to support military necessity and an indefinite detention policy. His recommendation constituted the factual basis for detaining both U.S. citizens and resident aliens of Japanese ancestry. He made the following statement in the Final Report: "The Japanese race is an enemy race and while many second and third generation Japanese born on United States soil, possessed of United States citizenship, have become `Americanized,' the racial strains are undiluted... It therefore follows that along the vital Pacific Coast over 112,000 potential enemies of Japanese extraction are at large today." See Final Report of General John L. DeWitt, quoted in Jacobus Tenbroek, Edward N. Barnhart & Floyd W. Matson, Prejudice, War and the Constitution 110 (1954).

. See Hirabayashi, supra, 828 F.2d591, 592-602.

. Id. at 1417 (citing Personal Justice Denied, which presents the findings of the Commission on Wartime Relocation and Internment of Civilians).

. Adam Liptak, Neil Lewis & Benjamin Weiser, "After September 11, A Legal Battle On the Limits of Civil Liberty", New York Times, August 4, 2002.

. See generally, Presumption of Guilt: Human Rights Abuses of Post-September 11 Detainees, Human Rights Watch, Vol. 14, No. 4(G), August 2002.

. 66 Fed. Reg. 48,334 (September 20, 2001), amending 8 CFR 287(3)(d). The 48 hour rule im-properly reads the case law as allowing for 48 hours regardless of special circumstances. County of Riverside v. McLauglin, 500 U.S. 44 (1991). Procedures may still be deemed unreasonably detained, even if charges are brought within 48 hours if, for example, there are "delays for the purpose of gathering additional evidence to justify the arrest, a delay motivated by ill will against the arrested individual, or delay for delay's sake." Id. at 56.

. Dan Eggan, "Delays Cited in Charging Detainees", Washington Post, Jan 15, 2002.

. 8 C.F.R. Section 236.6 (Fed. Reg. 19508 (Apr. 22, 2002). In ACLU of New Jersey v. County of Hudson, 2002 WL 1285110 (NJ Super. A.D. June 12, 2002), the NJ Superior Court held that the federal rule preempted any inconsistent New Jersey state public disclosure laws under the federal preemption provision of the US Constitution, Article 6, which declares that "the laws of the United States ...shall be the supreme law of the land...anything in the constitution or laws of any State to the contrary notwithstanding."

. 66 Fed. Reg. 54,909 (Oct. 31, 2001).

. It should be noted that this article has focused primarily on the legal issues surrounding the treatment of non-citizens. It has not addressed the use of military tribunals or the rights of U.S. citizens who are designated as "enemy combatants" such as Padilla and Hamdi.

. See United States v. Osama Awadallah, 202 F.Supp,. 2d 55 (S.D.N.Y. 2002).

. See Human Rights Watch report, page 4.

. 66 Fed. Reg. 55,062 (Oct. 31, 2001). This rule has been criticized by the Ethics Committee of Association of the Bar of the City of New York in that the requirement of a judicial finding of probable cause should not be replaced with an executive finding of reasonable suspicion in allowing the attorney/client privilege to be breached. See The Record of the Association of the Bar of the City of New York, Vol. 57, No. 3, Summer 2002.

. See Memorandum For All United States Attorneys, All members of the Anti-Terrorism Task Forces From the Deputy Attorney General: Guidelines for the Interviews Regarding International Terrorism, dated November 9, 2001, posted November 27, 2001, at: www.detroitfreepress.com/gallery/2001/interviews/01memo1124.htm. See also, criticism of program, e.g., in William Glaberson, "A Nation Challenged: The Interviews: Legal Experts Question Legality of Questioning"; New York Times, November 30, 2001, at B6.

. Dan Eggen & Cheryl W. Thompson, "U.S. Seeks Thousands of Fugitive Deportees: Middle Eastern Men Are Focus of Search", Washington Post, Jan. 8, 2002, at A1.

. 67 Fed. Reg. 52583-52593 (August 12, 2002).

. Id. In its comments to these rules, the American Immigration Lawyers Association (AILA) stated, "Terrorism is not tied to a nationality. It is not even tied to the omnipresent `alien.' It is tied to an ideology of hatred and destruction. To link Special Registration to nationality pro-motes the simplistic and dangerous view that our enemies in the war on global terrorism are cloaked in the guise of a passport or a stated place of birth."

. USA Patriot Act of October 2001 (Public Law 107-56).

. See Human Rights Watch report, page 4.

. See Complaint filed on April 17, 2002, in Turkmen v. Ashcroft, 02-CV-02307-JG (E.D.N.Y 2002), available at news.findlaw.com/hdocts/docs/terrorism. Turkmen, a Turkish national, was given voluntary departure on October 31, 2001, but was kept in custody for nearly four months, until the FBI ensured he was innocent.

. See, United States ex. Rel. Knauff v. Shaughnessy, 338 U.S. 537 ("whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned"); But see, Zadvydas v. Davis, 533 U.S. 678 (2001), where the Supreme Court held that "the Due Process Clause applies to `all persons within the United States, including aliens, whether their presence is lawful, unlawful, temporary or permanent."

. See Eg., Affidavit of James S. Reynolds, Chief of the Terrorism Crimes Section, submitted in Detroit Free Press v. Ashcroft, 195 F. Supp. 2d 937 (E.D. Mich. 2002).

. 2002 WL 1972919 (6 th Cir. (Mich.))

. Id. at 2.

. 2002 WL 1163637 (D.N.J.).

. 2002 U.S. District Court, Lexis 14168 (D.D.C. August 2, 2002). The American Immigration Law Foundation is a plaintiff in this case.

. Louis Henkin, "The Constitution and United States Sovereignty: A Century of Chinese Ex-clusion And Its Progeny", 100 Harvard Law Review 853 (1987).

. 130 U.S. 581 (1889).
. United States ex rel Knauff v. Shaughnessy, supra, note 40.

RESOURCES
Japanese Internment
    National Japanese American Historical Society, www.njahs.org materials related to the history and culture of Japanese in the United States
    Densho-Legacy Project, www.densho.org collection of oral histories of internment survivors
    Children of the Camps, www.pbs.org/childofcamp documentary on the experience of children were interned during World War II
    William Rehnquist, All the Laws But One: Civil Liberties in Wartime, Vintage, 1998.
September 11 Immigrant Detentions
    Human Rights Watch, "Presumption of Guilt: Human Rights Abuses of Post-September 11 Detainees," www.hrw.org/reports/2002/us911/
    Arab American Institute, "The Arab American Experience after September 11: Healing the Nation," www.aaiusa.org/PDF/healing_the_nation.pdf
    Lawyers Committee for Human Rights, "A Year of Loss: Reexamining Civil Liberties since September 11," www.lchr.org/aftersept/loss/report.htm
    National Immigration Forum, "Immigrants in the Crosshairs: The Quiet Backlash Against America's Immigrants and Refugees," www.immigrationforum.org/
    David Cole, "Enemy Aliens," Stanford Law Review Vol. 54:953 (2002)
    Christopher Connell, "Homeland Defense and Democratic Liber-ties: An American Balance in Danger?" 2002 Carnegie Challenge Paper, Carnegie Corporation.
    The Record of the Association of the Bar of the City of New York, Responding to September 11, Winter/Spring 2002.
    American Civil Liberties Union, www.aclu.org/safeandfree/911_report.pdf "Civil Liberties After 9/11", published 2002.

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Earned Legalization and Family Unification Act of 2002

Legislation to provide access to permanent resident status for qualified, undocumented immigrant workers and to unify the families of US citizens On October 10, Representative Richard Gephardt (D-MO) introduced the Earned Adjustment and Family Unification Act of 2002.

I. Earned Legalization
. Criteria for Adjustment of Status: The Attorney General shall adjust the status of any undocumented immigrant to that of a person lawfully admitted for permanent residence if the individual meets the following requirements:
    Continuous residence in the United States for at least 5 years prior to the date of enactment;
    A history of work in the United States in the aggregate of 24 months;
    Passes a federal background check;
    Establishes no outstanding tax liability or has rectified any outstanding tax liability;
    Demonstrates a minimal understanding of ordinary English and a knowledge and understanding of the history of the United States, or is satisfactorily pursuing a course of study to achieve such an understanding of English and such a knowledge and understanding of the history and government of the United States;
    Registers with the Attorney General at the time of filing an application and pays a fee to be determined by the Attorney General in consultation with Congress;
    Demonstrates that he/she has not been a federal public charge; and
    Applies prior to the sunset of the program 3 years following the date of issuance of final regulations.
Family Unification: The spouse and children of a person eligible for adjustment of status under this provision are eligible for adjustment of status.
. Work Authorization: Provides applicant and eligible dependents work authorization during the pending application.
. Remove Obstacles to Educational Opportunities for Immigrant Children: Provides adjustment of status eligibility for children who have no eligible parents and who have been students in the United States for 5 years, remain in school and show good moral character.
. False Statements Penalties: Penalizes any false statements made in the application by an applicant with a fine or denial of the application.
. Judicial review: Provides judicial or administrative review for denials of an application.

II. Family Unification/Visa Backlog Reduction
1) To ensure the availability of visas to qualifying family members and reduce the current backlog of visa applicants:
.    Remove the immediate relatives–– spouses, unmarried minor children and parents –– of US citizens from the worldwide cap.

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USCIS Launches On-Line Case Status System

The USCIS has launched a system for checking the status of a case pending at a Service Center via the internet. It can be found at https://egov.ins.usdoj.gov/graphics/cris/jsps/caseStat.jsp. The information provided is the same as can be obtained by calling the “USCIS Direct” inquiry lines at the Service Centers, but this system provides an alternative means to make an inquiry without worrying about busy signals

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Tancredo in Maelstrom of Immigration Debate
FOX News

WASHINGTON -- To advocates of enforcing immigration laws at the country's borders, he is a hero. To those seeking to protect illegal aliens once they get here, he is a racist.

One thing is for sure, Rep. Tom Tancredo, R-Colo., has a knack for generating headlines as he advocates immigration reform in a security-rich political environment.

"He is a very courageous individual," said Rep. Dana Rohrabacher, R-Calif., a member of the Congressional Immigration Reform Caucus, of which Tancredo is the chairman. "There are few members of Congress who have the courage to be as candid as he is."

The two-term Tancredo has spent the last year fighting to beef up the U.S. Border Patrol and reform an Immigration and Naturalization Service that he says is inadequately equipped to stop the estimated 9 million illegal immigrants entering the country each year.

Since ineffective USCIS enforcement was blamed in part for the Sept. 11 attacks, Tancredo has held hearings and publicly challenged fellow lawmakers and the Bush administration to be more adamant about USCIS reforms.

Last spring, he launched an e-mail petition drive calling for the deployment of as many as 20,000 federal troops to the 6,000 miles of northern and southern U.S borders. His immigration caucus was also key in
killing a bill that would have given amnesty to 3 million Mexican immigrants living here illegally.

"What we're talking about here is national security," Tancredo told Foxnews.com. "We're much more organized and there is much more feeling out there in the country for [immigration reform] than there was before."

This isn't the first time that Tancredo has taken a vociferous stand on a national issue when it hits close to home. In 1999, he fought against efforts to make the Columbine High School killings a war cry for new
federal gun laws.

Tancredo, whose home was within six blocks of the high school, went on record repeatedly charging that stricter laws could not have saved the 12 students and one teacher shot to death by 12th-graders Dylan Klebold and Eric Harris on April 20, 1999. Klebold and Harris then shot themselves.

Recently, Tancredo has been the target of more virile criticism. In September, he called the USCIS about a Mexican family living in the United States illegally for the last six years after they had been featured in The Denver Post. College hopeful Jesus Apodaca, 18, who lives with his family in Colorado, was highlighted in a piece about the debate over higher-education tuition assistance for illegal immigrants.

The sympathetic piece was picked up not only by a reader who offered to be Apodaca's benefactor, but Tancredo, who said the feature story was an indication the USCIS had no enforcement mechanism. He called the USCIS to ask if they were going to look into the story.

While the move unleashed a debate that set up Tancredo for admonishment, even from Colorado Republicans, he said the news was wrong. He did not request the USCIS deport the family, as was reported in The Denver Post and elsewhere, including Foxnews.com. Instead, he waited a month and called to ask if they had planned to investigate. He was told the agency would write the family a letter, he said.

Nonethless, the story moved Republican Gov. Bill Owens to support publicly bills by U.S. Sen. Ben Nighthorse Campbell, R-Colo., and a House version by Rep. Mark Udall, D-Colo., that would keep the Apodacas in the United States. It also created friction within the Colorado Republican Party.

"They agree that they just disagree on this issue," said Camden Hubbard, spokeswoman for Campbell. "This is not the kind of immigrant that we would want to attack, we would rather welcome them into this country."

Nonetheless, Tancredo does not regret his actions. Rather, he felt the USCIS should address the situation, since the paper decided so blatantly to publicize their illegal status. He said that the message its sends to Mexicans who come to the country legally is that they shouldn't have worked so hard to get here, and tells Americans that the current law is a sham.

"That's the worst thing about the Apodaca case," said Tancredo. "That's why I felt I had to do something about it."

He does have some supporters, however.

"The reason why Tom ends up on the cover of The Denver Post is because they want him to be responsible for the mistake it made," said Rep. Bob Schaffer, R-Colo., who said the paper is to blame for the family going into hiding following the Tancredo/USCIS reports.

Nevertheless, the League of United Latin American Citizens, in a recent statement, called Tancredo a "prototypical anti-immigrant hypocrite," and said his behavior in the Apodaca case was indicative of the "extremist anti-immigrant racism" espoused by some members of Congress.

Trancredo's supporters dismiss this as political manipulation by LULAC to shift the argument away from the real isues. In fact, these are the people who wish the law never existed, said Dan Stein, executive director of the Federation for American Immigration Reform.

"If they want to abolish immigration laws they should have the courage to stand up and say it," said Stein.

Despite the maelstrom around him, Tancredo appears to be safe for re-election. Campaigns & Elections Oddsmaker gives the former junior high school teacher and state House representative a 70-percent chance of winning over Democrat Lance Wright and Libertarian Adam Katz next month. His suburban Denver district is distinctly Republican.

"We're just getting started," Tancredo said.

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Foreign students facing post-9/11 rules
By John Owens
The Chicago Tribune

The events of Sept. 11, 2001 were supposed to have a monumental impact on foreign students such as Wandee Sirisutthidecha. But for the DePaul University education major from Thailand, the changes have been fairly subtle--although she did have some concerns when traveling back to her native country last November.

"When friends [here] would ask me if there was a chance that I wouldn't come back, I would say `I don't know,'" she said. "I was nervous about not being able to come back because even our international student office was telling foreign students to make sure their documentation was current after Sept. 11."

Sirisutthidecha's documentation was up to date, and she's back in Chicago, student-teaching and planning on getting her master's degree in education in this country, once she finishes her undergraduate career this December.

"I need to get my master's in this country before I can return to teach in Thailand," she said.

Recent statistics show that studying in the U.S. continues to be a popular alternative for foreigners such as Sirisutthidecha, with applications and enrollments for international students either steady or on the rise in most countries.

No lag in applications

Two-thirds of more than 530 educators in the U.S. say applications for studying abroad during the 2002-03 school year have either increased or remained the same, according to a survey from the Institute of
International Education, based in New York. This comes after the institute reported that a record total of 547,867 international students were attending colleges and universities in the U.S. during 2000-01.
International students brought in more than $11 billion to the U.S. economy, the institute said, which would make higher education one of the nation's leading exports.

"We feel that the numbers won't change much this academic year, based on what we've heard in surveys and informal conversations with foreign student advisers," said Hey-Kyung Koh, an IIE program officer. Only some nations in the world's Islamic community will probably see a decline in enrollments,
according to Koh, the editor of the institute's annual Open Doors report on international student mobility, who adds that enrollments from other Muslim countries are holding steady.

But there are signs that things could be changing. It now takes an average of six to eight weeks to get a student visa approved by the federal government; before Sept. 11, 2001, it took an average of four to six weeks, according to the U.S. State Department.

And slowly but surely, a new system designed to allow colleges to electronically exchange vital information about foreign students is being introduced to schools. The system, called the Student and Exchange Visitor Information System(SEVIS), gives schools the opportunity to send this
electronic information to the Department of Immigration and Naturalization Services and the State Department throughout a foreign student's academic career. This will allow the federal agencies to keep better tabs on international students.

Due to confusion about the technology, only 736 of about 7,500 schools that accept foreign students have been certified to use this system; all these schools (which include institutions such as flight schools and secondary schools as well as colleges and universities) will have to be certified with SEVIS by Jan. 30 to continue accepting foreign students. That deadline is firm, though some schools complain they lack the software to handle the system.

Additional challenges

The question now: Will foreign students still be enthusiastic about studying in the U.S., now that the opportunity comes with so much extra baggage? The answer is not clear, but educators are prepared for the worst.
"There have been no drastic changes so far," said Harvey Stein, the acting director for the Office of International Affairs at the University of Chicago. "But soon the system will be very unyielding, and things like missed deadlines will not have a remedy."

Already, international students from across the country have complaints about the extensive background checks that affect the time it takes to process a visa application. For the most part, the process is the same as it was before Sept. 11: Students need a passport, a letter of recommendation or transcripts from a university; a financial statement showing that the student can afford living and going to school in the U.S.;
and the visa application form.

But a new State Department policy calls for all male non-immigrants (those applying for temporary residency) between 16 and 45 submitting visa applications to complete a supplemental application as well. That form--the DS-157--has questions about possible terrorist-related activities, according to students who have filled it out.

"It asks us questions like whether or not we have any experience with biological weapons, and whether or not we've been a part of any armed conflict," said Joseph Roche, a graduate student from India studying at the University of Maryland Baltimore's Department of Physical Therapy.

Background check delays

Published reports have said visa approvals for thousands of men, primarily Muslim, have been delayed indefinitely, partially due to the background checks and intense scrutiny from the Bush administration.

Officials cite the new cooperative efforts between federal agencies as a reason for the delays.

"We were working with these additional departments before, but not to the extent that we're working with them now," said Kelly Shannon, a State Department spokeswoman. "That can sometimes create a longer process time for applications."

But for students, it makes the idea of an education in the U.S. much less attractive. Even the time spent in a U.S. consulate abroad while applying for the visa was difficult for some students.

"The screening outside the consulate is more intense," said Roche, who applied for his student visa at the U.S. consulate in Madras, India. "We were frisked, then asked to sit in line and fill out forms on our work
history."

International students also have concerns about being prevented from getting a U.S. education if immigration officers suspect they might want to stay after they graduate from college, in violation of strict immigration rules.

"Usually when students have a good academic record they don't have much of a problem," Roche said. "But I had a friend [from India] who had applied at the same time that I had--he was rejected even though he had good grades and standardized test scores. They just gave him a letter, where they stated that one of the reasons that he was denied a visa was because he was a potential immigrant."

Problems overseas

Some students say that even entering a U.S. consulate overseas to submit an application is more difficult than before, due to the increased security after Sept. 11.

"I couldn't get inside the consulate [in Paris] to ask about the procedure because only American citizens were allowed inside due to Sept. 11," said Veronique Oeuillet, a history major from Aix-en-Provence in France now attending Loyola University as an undergraduate.

"I had to phone the embassy and had to go through a series of answering machines before I ended up mailing all my documents to the consulate," Oeuillet said.

"Right now in India for security reasons, you don't go to the consulate," added Arun Deivasigamani, who recently got his master's degree in science and mechanical engineering from the University of Illinois at Chicago. "You go to a consultant, who submits the documents for you."

Despite the complaints about the additional time it takes to apply for student visas, officials in this country say it's comparable to the paperwork a domestic student has to contend with when applying to a school.

"Sure, we make people jump through a lot of hoops, but the visa hoops are the most straightforward in many ways," said IIE president Allan Goodman. "It asks you to give your address, photo passport. But it's not that much more difficult than applying to a school domestically."

Not every student has experienced problems getting visas in a timely fashion. Some students from neighboring countries such as Mexico say that they haven't had major delays after applying for their visas.

"I went to the embassy to apply, and two days after, I got my visa in the mail--I didn't have any troubles," said Cristina Narvaet, who is now attending Loyola as a senior. "It's probably because I had my tourist visa already. That probably helped."

Despite the problems and complaints, educators such as Goodman say attracting the best and the brightest from foreign lands is a priority--not only for the international students, but for our nation as well.

"Everyone everywhere sees higher education as a key to a brighter future," Goodman said. "We have so many seats in higher education compared to other countries. There's just not another seat to stuff a student in, say, Cairo.

"We're still the No. 1 education destination of choice for students from around the world, and I think that's is good for America and the world," he added. "I'm betting that when the cancer is cured, it will done be an international student in a lab at the University of Chicago or somewhere like that."

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Fake Document Industry Large and Sophisticated
By Lornet Turnbull
The Columbus Dispatch

Across the United States, a flourishing underground network churns out fake and stolen documents that allow illegal immigrants access to jobs.

For a price, they can get it all: birth certificates, visas, Social Security cards and passports.

''The technology in use is quite sophisticated, and it's very difficult for the typical employer to ferret out phony from legitimate,'' said John Keeley, a research associate at the Center for Immigration Studies in Washington, D.C.

In Latin stores in Columbus, ''nobody accepts U.S. documents for ID,'' said Alex Flores, president of the Spanish-language paper La Voz Hispana. ''They know that, at best, they're not real.''

A Social Security number -- which opens doors to credit cards, bank accounts and other forms of identification -- can sell for $60 to $300 or more, some say.

Some are nine-digit numbers selected at random. Others are the Social Security numbers of people who obtained them legitimately. In those cases, officials say, payroll contributions on behalf of the immigrants are credited to the rightful owner of the number.

In one Columbus case, lawyer Joe Mas said, six people were using the same number.

Last year, in a stepped-up effort to find fraud, the Social Security Administration sent out 750,000 letters to the U.S. employers of 7 million workers whose names don't match the name associated with the Social Security number they're using. The administration has been sending such letters since 1993, at a rate of about 100,000 a year.

Some of the 750,000 mailed last year included people who changed their names through marriage but didn't notify the Social Security Administration. But the agency acknowledges that others involve fraud.

''We are aware that there are groups of people who sell Social Security numbers,'' said Romenita Wood, an agency spokeswoman. ''It's one of the reasons we put the new initiatives in place.''

Since the terrorist attack of Sept. 11, 2001, the administration has begun verifying birth records of anyone older than 1 who requests a Social Security number.

It has also stopped issuing numbers to noncitizens who request them to obtain a driver's license. In Ohio, legal immigrants can obtain a license using their immigration documents.

''We're not trying to crack down on immigrants but protect the integrity of the Social Security number for everyone,'' Wood said.

Although key to employment, a Social Security number isn't the only document needed. By federal law, employers must obtain proof from prospective employees that they are legally allowed to work in the United States -- either through a visa, passport or birth certificate, said Danielle Sheahan, spokeswoman for the Immigration and Naturalization Service in Washington.

''Every employer has the responsibility to check the validity of documents,'' she said.

''I'm not saying they can always tell that it's fraudulent, (but) there's no excuse for hiring someone with fraudulent documents.''

Those who work with illegal immigrants, however, say that some documents can appear very legitimate and that some employers don't want to know when they're not.

''Employers are not USCIS agents,'' said Julia Arbini-Carbonell, president of the Ohio Hispanic Coalition. ''They are required to examine the documents, but sometimes they can be so well-made they look like the real thing.

''To them, it is the real thing,'' she said. ''If it looks like a duck and quacks like a duck, what do you do?''

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Shift of Care for Immigrant Children Alone
By THE NEW YORK TIMES

WASHINGTON, Nov. 26 - Tucked into the Homeland Security Department bill that President Bush signed into law Monday is a measure transferring authority for immigrant children who enter the country without any adult relative or guardian to the Department of Health and Human Services. They had been the responsibility of the Immigration and Naturalization Service.
Legal groups and immigration advocates have welcomed the shift, saying it will improve services for the children, including their access to the nation's foster care system.

Thousands of unaccompanied children are detained each year by the immigration agency. Some have fled human rights abuses, including forced recruitment as soldiers, child labor and prostitution. Others are brought to the United States by child traffickers.

Under the new legislation, care and detention of these children will be handled by the Office of Refugee Resettlement in the Department of Health and Human Services. The children's asylum cases will remain in immigration courts.

While the immigration service said it worked with nonprofit organizations and public agencies to place children in the least restrictive settings possible, many were sent to jails for months at a time without access to translators, education or medical care.

Amnesty International, the American Civil Liberties Union and the American Bar Association, among other groups, pushed Congress to change the handling of unaccompanied immigrant juveniles. "Children who arrive at our borders alone and unprotected will no longer have their prosecutor serve as their caretaker," said Alfred P. Carlton Jr., the president of the bar association.  The legislation calls for a government study to determine the best way to ensure that qualified and independent lawyers are appointed for the children. More than 50 percent of unaccompanied juveniles appear in court without a lawyer or guardian, the bar association said. That often means added time in detention, because immigration judges are reluctant to order removal of children who do not have counsel.

"This is an important first step in providing these children with legal representation," Mr. Carlton said. "We urge Congress to establish a pro bono infrastructure next year to further this effort."  Immigration laws do not allow for the appointment of counsel for immigrants at the government's expense. As the number of detained children has steadily increased, to about 5,000 a year from about 2,500 in 1997, pilot programs have begun in some states to ensure that all children in the immigration agency's custody get lawyers. Bills were introduced in both houses of Congress this year calling for unaccompanied illegal immigrant children to receive appropriate treatment and a lawyer while in custody.

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