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Immigration Developments in the Aftermath of the WTC Disaster
by Cyrus D. Mehta

The WTC disaster will have, if it is not already having, an adverse impact on immigration. The Section 245(i) extension legislation that Congress was about to pass prior to September 11 has been put on the back burner. Even proposals to legalize the status of undocumented workers, especially Mexicans, based on negotiations between Presidents Bush and Fox prior to September 11, have been put on hold. Instead, we are seeing proposals that will make it easier for the government to detain and deport immigrants.

Before we get to the adverse proposals, let me give you some good news. On September 21, 2001, the INS Commissioner James Ziglar released the statement below encouraging undocumented aliens who may have lost friends or family in the recent terrorist attack to contact local authorities without fear of INS attempting to acquire or use that information for immigration purposes:

"All of us in the INS family have been deeply shocked and saddened by the terrible loss of life and destruction in New York. We are committed to supporting the rescue and recovery efforts taking place at the World Trade Center. We have heard disturbing reports that some people whose loved ones are missing have not come forward because of immigration issues. We cannot let that happen. It is crucial that local authorities get the help they need in identifying victims and the missing. I want to personally urge the immigrant community to come forward, and assure everyone that INS will not seek immigration status information provided to local authorities in the rescue and recovery efforts."
Another piece of good news is that the Visa Office of the State Department has advised that it has not changed visa procedures and that virtually all posts are open for full consular services. The State Department also indicated that some posts have reported a decrease in interest in going to the US. Posts in Mexico, for example, reported a substantial drop in the requests for visa appointments.

The bad news is that the administration has proposed an anti-terrorism bill, resulting in a lot of pressure in Congress to act very quickly. Although there is no final proposal, the versions that we are seeing would authorize the US government to detain and remove any immigrant if it has reason to believe that he or she furthers acts of terrorism or poses a threat to national security. Such a person may be detained or removed without the benefit of a hearing. Judicial review of such an action would be limited to the federal courts within the District of Columbia.

If the various proposals become law, it would be very amenable to being abused by over zealous law enforcement officers within the INS and other agencies of the federal government. This law will remain in place long after the terrorists who perpetrated this horrible crime would have hopefully been caught or eliminated. There is no guarantee that it would not be used inappropriately against persons of certain countries or ethnicities, or in the future. Although passage of an anti-terrorism bill is understandable in the in light of the WTC tragedy, the rights of immigrants, especially lawful permanent residents, should not be diminished relative to those of US citizens. Every person who is accused of posing a threat to national security should be entitled to a hearing before being detained and removed from the United States.

The US Department of Justice has also extended the deadline from 24 hours to 48 hours, following the arrest of an alien, to allow the INS to determine whether or not to bring deportation charges against this person. While an increase of the time period from 24 hours to 48 hours may be reasonable in light of the current situation, the amendment to the INS rule also allows the INS to indefinitely detain a person without issuing charges "in the event of emergency or other extraordinary circumstances." Under these circumstances, the INS would be given a reasonable amount of time to make a determination, but "reasonable" has not been defined at all.

It is very important that the rights of immigrants be safeguarded despite the tragic events that took place on September 11. Law enforcement already has sufficient tools to go after alleged terrorists and criminals. While the government may promise to apply these provisions narrowly, there is potential for abuse, which could lead to a round up of large groups of immigrants without any credible basis that they may have committed crimes or are threatening the national security of the United States.

Immigrants' rights were already abrogated in the 1996 immigration laws, shortly after the Oklahoma bombing, which did not even involve foreign terrorists. In the past five years, federal courts have overturned some of the harshest provisions of the 1996 laws but most still remain. A new round of legislation against immigrants will surely undo any little rights that immigrants might still have against unwarranted and intrusive government action.

Please urge your own Senators and Representatives to avoid over- reaction and the further erosion of immigrants' civil liberties.

About The Author

Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, practices immigration law in New York City. He is a trustee of the American Immigration Law Foundation and recipient of the 1997 Joseph Minsky Young Lawyers Award. He is also Chair of the Immigration and Nationality Law Committee of the Association of the Bar of the City of New York. He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted at 212-686-1581 or