9/11 flashback and future immigration policy

As we approach 2016 and the 15^th anniversary of the tragic attacks of September 11, 2001, the debate around how to keep America safe and welcome newcomers is prominent. In the last year, cities and countries around the world, including Paris, Beirut and Mali – have been vulnerable to terrorist attacks and human tragedy. Meanwhile, the world faces the largest refugee crises since the Second World War. While President Obama has committed to admit 10,000 refugees from Syria, the sentiment within the United States has been complex, and included a vow from dozens of states to reject refugees; proposed legislation by Congress to restrict admission to the United States for refugees from Syria and Iraq and certain visitors who have set foot in Syria and Iraq; and proposals for a registry to track Muslims.

These events produce a flashback to a parade of policies enacted after 9/11 in the name of national security.  Many of these programs were ineffective, and enacted at great expense to Arab, Muslim and South Asian communities.

{mosads}One program, known as the National Security Entry and Exit Registration System or NSEERS required certain nationals from the following 25 countries to undergo special registration: Afghanistan, Algeria, Bahrain, Bangladesh, Egypt, Eritrea, Indonesia, Iran, Iraq, Jordan, Kuwait, Lebanon, Libya, Morocco, North Korea, Oman, Pakistan, Qatar, Saudi Arabia, Somalia, Sudan, Syria, Tunisia, United Arab Emirates and Yemen. The registration process involved interrogations, fingerprints and photographs and remained operational through 2011. One controversial portion of the NSEERS program was the in-person interview at a local immigration office because it resulted in more than 13,000 charging documents or Notices to Appear for removal (deportation proceedings) against individuals who in many cases were charged with a paper visa violation under immigration law. In other words and in exchange for voluntarily reporting to a local immigration office to support national security, scores of young men were served with papers that led to their deportation. Thousands more did not register because they did not know about the NSEERS program (publicized largely through a government publication called the “Federal Register”) or because they were fearful about what might happen if they did comply. The saga of NSEERS continued for more than a decade and affected many people, including men seeking green cards based on a qualifying relationship to an employer or family member years later who were questioned/denied because NSEERS. Though the NSEERS program has been “suspended” the penalties associated with the NSEERS program remain intact as does the regulatory structure on which NSEERS was based. For example, under the current regulations, a person who failed without good cause to comply with the departure component of NSEERS is presumed to be inadmissible under the Immigration and Nationality Act (INA) as an “alien who seeks to enter the United States to engage in unlawful activity.”

The goal of the NSEERS program was to identify a “needle in a haystack” but instead it was counterproductive and alienating. Additional programs announced after 9/11 that affected individuals from countries with Muslim-majority populations included a sweep and detention of some 1,200 men without bond or timely notice of the charges against them or adequate treatment while in detention; a new regulation to enable the Department of Homeland Security to hold a person in custody without charges beyond 48 hours in the event of an emergency or extraordinary circumstance; and a policy by the Department of Justice to close immigration hearings to the public and the press for national security reasons. Efforts to roll back these programs through legislation known as the “Civil Liberties Restoration Act” were unsuccessful. Then, the politics were emotional as they are now. Notwithstanding, I hope policymakers reflect upon the post 9/11 policies that were poorly conceived and discriminatory and moving forward consider solutions that are consistent with American values and the rule of the law.

Wadhia is the Samuel Weiss Faculty Scholar and law professor at Penn State Law-University Park where she teaches immigration and asylum & refugee law and also directs the Center for Immigrants’ Rights Clinic. Wadhia is author of Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases (NYU Press 2015)