Practical Tips for Noncitizens in a Post-September 11 World
The landscape of immigration law has changed dramatically since September 11 and is still changing. Immigration lawyers have never been called upon before to provide advice on so many issues that have arisen since the terrorist attack on September 11. Noncitizens, on the other hand, are interested in knowing their rights, as well as obligations for remaining in the United States. This outline makes practical suggestions on some of these issues for immigration lawyers and their clients. In order to provide context, the outline will start with citations of the sources of federal action about which immigration lawyers are increasingly being asked to advise, comment, or respond with legal remedies. The following sections will address the rights of noncitizens if contacted by the U.S. government, their vulnerability since September 11, and issues relating to arrest and detention.
Section 412 of the USA Patriot Act adds a new INA §236A concerning the mandatory detention of suspected terrorists. This provision provides for the "certification" by the Attorney General or the Deputy Attorney General of any noncitizen he or she reasonably believes to be a terrorist or to have engaged in any other activity that endangers the national security of the U.S. The INS must detain any persons so certified. Noncitizens may be detained for seven days while the government decides whether or not to bring immigration or criminal charges against them. Individuals not charged within seven days must be released. See Mehta, Beware of Indefinite Detention Under The USA Patriot Act, http://www.cyrusmehta.com. The USA Patriot Act also provides generous relief to victims or their family members. The immigration provisions of the USA Patriot Act can be found at http://www.ins.usdoj.gov/graphics/lawregs/patriot.pdf.
Interim Rule of September 20, 2001, on custody procedures: 66 Fed. Reg. 48,334, amending 8 C.F.R. § 287(3)(d) to increase from 24 to 48 hours the time INS can detain someone without charges, and thereafter in emergency or extraordinary circumstances. Rule effective on September 17, 2001. See http://frwebgate1.access.gpo.gov/cgi-bin/waisgate.cgi?WAISdocID=362201720+1+0+0&WAISaction=retrieve.
Interim Rule of October 31, 2001, permitting eavesdropping on lawyer-client conversations: 66 Fed. Reg. 55,062, amending 28 C.F.R. Parts 500 and 501 to authorize monitoring of mail or communications with attorneys where there is reasonable suspicion that an inmate may use communications to further acts of violence or terrorism. See http://frwebgate5.access.gpo.gov/cgi-bin/waisgate.cgi?WAISdocID=36313510706+0+0+0&WAISaction=retrieve.
Interim Rule of October 31, 2001, expanding automatic stay of Immigration Judge's order of release from detention at request of INS: 66 Fed. Reg. 54,909, amending 8 C.F.R. § 3.19(i)(2) to provide stay where district director had ordered alien to be held without bond or on bond of $10,000 or more, so as to maintain status while INS seeks expedited review. See http://www.ilw.com/immgdaily/federal_reg/2001,1101-custody.shtm.
President's Military Order of November 13, 2001, providing for prosecution of noncitizens as terrorists by military tribunal. See http://www.whitehouse.gov/news/releases/2001/11/20011113-27.html. For criticism and defense of order, See Editorial Desk, Justice Deformed: War and the Constitution, New York Times, December 2, 2001, Week in Review, page 14, and See Sanger, Civil Liberties; President Defends Military Tribunals in Terrorist Cases, New York Times, November 30, 2001, section A, page 1.
On the interrogation of some 5000 Arab persons being conducted by law enforcement personnel, See Deputy Attorney Memorandum, For All United States Attorneys, All Members of the Anti-Terrorism Task Forces: Guidelines for the Interviews Regarding International Terrorism, dated November 9, 2001, posted November 27, 2001, See http://www.detroitfreepress.com/gallery/2001/interviews/01memo1124.htm. For criticism of interrogation procedures and program, See William Glaberson, A Nation Challenged: THE INTERVIEWS: Legal Experts Question Legality of Questioning, New York Times, November 30, 2001, section B, page 6.
On the offer of benefits of "S" classification and adjustment of status, under INA §101(a)(15)(S), 214(k), 245(j), in connection with investigation of terrorism. See Lewis, Immigrants Offered Incentives To Give Evidence on Terrorists, New York Times, November 30, 2001, section B, page 7.
Department of State Memorandum of October 8, 2001, on Visas Viper Terrorist Reporting Program to identify and report on information relating to terrorists who are not visa applicants and to assist in screening for them, and related programs that seek to identify terrorists, using "reasonable suspicion" criterion. See http://travel.state.gov/reciprocity/VISAS%20VIPER/to_all_diplomatic_and_consular_p.htm.
INS Memorandum of November 14, 2001, barring parole of persons for secondary inspection or granting of documentary waivers for admission without approval from high-level district officials. Memorandum also sets out criteria for grant of documentary waiver.
Chief Immigration Judge (IJ) Michael Creppy's Memorandum to Immigration Judges, dated September 21, 2001, on security procedures for "certain cases," including assignment only to judges who hold at least a secret clearance.
Attorney General's Memorandum of October 12, 2001 to, All Heads of All Federal Departments and Agencies discouraging FOIA discretionary release of information that may be prejudicial to national security or impinges on sensitive business information or personal privacy.
II. POLICE, FBI OR INS CONTACTS IN A NON-CUSTODIAL SETTING
Everyone has a right to remain silent under the Fifth Amendment. A person cannot be arrested for refusing to answer questions. But the government may become suspicious if he or she remains silent. For a good Know Your Rights summary, See American Civil Liberties Union, http:///www.aclu.org/library/know_your_rights.pdf, or National Lawyers Guild, http://www.nlg.org. If one is asked about his/her immigration status when stopped by the INS, there is no requirement to talk about it to an INS agent, although one may talk about it if there is no issue. However, if there are complications, the individual should ask to speak to a lawyer before offering any information. If stopped while driving a vehicle, one must show the license and registration.
This is particularly the case with respect to the interrogation of some 5000 Arab persons. Even if one is on a valid visa such as a B-2, and is questioned about future plans, law enforcement personnel unfamiliar with immigration law may believe that the person is not in compliance with the B-2 visa if he believes you are looking to study or work in the U.S., rather than return. See Hassouri, Attorney General's Guidelines for Interviews Regarding Terrorism, http://www.cyrusmehta.com.
According to the American-Arab Anti-Discrimination Committee's guidance, the interviews are completely voluntary and no one is obligated to answer any question. Interviewees are advised to also make sure that an attorney is present at all times during any voluntary interview the person may chose to attend. See http://www.adc.org/action/2001/30november2001.htm.
Questions should be answered to the point. There is no need to volunteer information about one's immigration status (particularly when one is more vulnerable) if not asked about it. For instance, one person when questioned about his whereabouts on September 11 also began volunteering information that he was on an H-1B status when he had actually lost his job two weeks ago. This led to further questions concerning his immigration status.
III. WHO ARE THE VULNERABLE NONCITIZENS?
Almost everyone is vulnerable, if not careful. Let's start with examples, in descending order, with the most vulnerable:
Noncitizens previously ordered deported. These individuals can be swiftly detained and removed. "The names of more than 300,000 foreigners who disappeared after being ordered deported will be entered in a crime database so that police can help track them down. By entering their names in the National Crime Information Center database, the missing deportees might be identified by officers in traffic stops or other identity checks", James Ziglar told the House Judiciary subcommittee on criminal justice. See Suzanne Gamboa, The Associated Press, December 5, 2001. Such individuals must insist on being represented by an attorney before answering questions and signing anything. All hope is not lost when an individual is ordered deported. There are provisions to reopen old deportation orders through joint motions with the INS if relief becomes available as well as relief under the LIFE Act for legalization applicants, etc.
Noncitizens Suspected of Terrorism. Section 411(a) of The USA PATRIOT Act expands the definition of terrorism (See INA §212(a)(3)) to include contributing funds or material support to any organization that has been designated as a terrorist organization. For list of designated terrorist organizations, See http://www.state.gov/r/pa/prs/ps/2001/index.cfm?docid=6695. Before making a donation, make sure to check the status of the organization. Also be careful before making a contribution to a non-designated terrorist organization. There is a possibility of still being branded as a terrorist unless the individual can "demonstrate that he did not know, and should not reasonable have known, that the act would further the organization's terrorist activity." This provision applies retroactively. Moreover, the President's Military Order of November 13, 2001, makes an individual subject to trial before a military commission for knowingly harboring a member of al Qaida who has engaged in terrorism in the U.S. See Section 2(a)(1)(iii). We have seen that many homeowners unwittingly rented their homes to the hijackers. The government can merely suspect one to be a member of al Qaida, which in turn could snare the noncitizen homeowner who unwittingly rented his home to the individual.
H-1Bs Who Are Without Work. Due to the economic downturn, several H-1Bs have lost their jobs or may be in non-productive status. If questioned or apprehended, they could be placed in proceedings. Persons in this predicament should attempt to maintain status at all times. When terminated, the H-1B should negotiate a long severance arrangement with the employer. If the H-1B has found a new offer of employment, the new H-1B petition must be filed as soon as possible. See Murthy, Restrain Your Curiosity When Travelling! - A Cautionary Tale, http://www.murthy.com.
Noncitizens Travelling Overseas. Check the procedures at the US consulate where you plan to obtain your visa. For U.S. consulate and embassy information, See http://travel.state.gov/links.html. What should be anticipated is closer scrutiny, and longer waiting periods for processing of visas abroad. In an effort to minimize delays during visa processing it is imperative to take specific documentation for the renewal of such visas. Those planning to travel abroad, especially students, should read Burak, Shaw, Roy, and Mack, Tips for Traveling in Uncertain Times, http://isss.binghamton.edu/Fall2001TravelExtra.htm. The article includes a list of documents, which should be taken during travels, as well as general suggestions on whether or not one should travel at all, and what and what not to say during interviews with immigration, and consular officials. Since November 16, 2001, processing of visas at Mexican and Canadian U.S. consular posts have been affected. See Novoa, State Department Resumes Third Country National Visa Processing in Mexico and Canada For Some, But Not All, http://www.cyrusmehta.com. Although some U.S. consular posts have again resumed making appointments for TCNs in Mexico and Canada, those who may be subject to these increased security checks, should not make appointments in Mexico or Canada and proceed to their home countries. Even if one returns to the home country, anticipate longer waits before being able to obtain a new visa. If one goes to Canada or Mexico, be sure to return to the U.S. in less than 30 days. Also be prepared for a tougher inspection process at the U.S. airport upon return. For border waiting times, See http://mems.customs.gov/process/bordertimes/bordertimes.asp. An alternative to travelling abroad to renew an expiring visa, is visa revalidation at the State Department headquarters in Washington DC. See http://www.travel.state.gov for procedures. 22 CFR 41.111(b) allows revalidation of temporary work (E, H, I, L, O, or P) visas through the Visa Office in Washington DC, if the person's visa was previously issued at the consular post abroad, and he or she entered the U.S. in that status.
Noncitizens Not Carrying Their Documents. INA §264(e) requires a noncitizen to "carry with him and have in his possession any certificate of alien registration or alien registration receipt card issued to him. Any alien who fails to comply with the provisions of this subsection shall be guilty of a misdemeanor and shall upon conviction for each offense be fined not to exceed $100 or be imprisoned not more than 30 days, or both." 8 CFR §264.1 sets forth many registration forms. See Mehta and Hassouri, Noncitizens Must Have Documents Verifying Their Status At All Times, http://www.cyrusmehta.com, or http://www.ilw.com.
Frequently Asked Question: I have heard varying accounts of the documentation that noncitizens have to carry with them. Officials have told some people that they should carry their entire application. Others have been told to have in their possession a passport at all times. A client was in valid L-1A status until September 30, when her employer filed a timely application to extend it. The petition has yet to be approved and the INS just issued a Notice of Action requesting further evidence. What documentation does the person need to carry with her?
Author's Response: In a recent article that I co-wrote with Parastou Hassouri on www.ilw.com, we regurgitated a long laundry list of documentation prescribed under 8 CFR Section 264.1(a) that would reflect one's status. However, many of the documents may not truly reflect an individual's unique situation.
A nonimmigrant in L-1 or H-1B status, according to the regulation, would need to carry the Form I-94. However, the date on the I-94 may have expired, and even though a timely extension filing allows the client to continue to legally work for her employer, the I-94 will reflect an expired date. I suggest that the person also carry her receipt notice indicating that an L-1A extension has been filed on her behalf, even though the regulation does not prescribe it.
The I-94 is supposed to be clipped on to a person's passport, but the regulation again does not require a noncitizen to carry a passport. I also realize that it would be extremely onerous to carry your passport each time you leave home. However, if you plan to travel by air domestically, it would be very prudent to also carry with you your passport as well as the Form I-94.
Noncitizens Who Have Not Filed A Change of Address Notice. INA §265 requires each alien to notify the Attorney General in writing of each change of address and new address within ten days from the date of such change. According to 8 CFR §265.1 Form AR-11 is to be used to report each change of address and must be mailed to DOJ INS, HQ REC, ULLICO 3rd Floor, Washington DC 20536 Washington DC 20536. §237(a)(3)(A) renders failure to file a notification for change of address a deportable offense unless "such failure was reasonably excusable or was not willful." To download Form AR-1, See http://www.ins.gov/graphics/formsfee/forms/ar-11.htm.
Unusual Behavior From Noncitizens. Noncitizens should restrain their curiosity on flights. For instance, asking questions on flights about flight equipment, and emergency exits, could alert other passengers, and flight attendants. Also, taking photographs of landmarks could be perceived as suspicious behavior, and should not be avoided.
IV. NONCITIZENS IN DETENTION
Lawyers representing detained immigrants are experiencing the following issues:
The USA Patriot Act must charge your client within 7 days, but that is only if the client is "certified" as a suspected terrorist. See New INA § 236A(a)(3). Strategically, it would not be advisable to invoke new INA §236A as that assumes that the client has been "certified," which could lead to indefinite detention. To keep the client detained after certification, the government could charge him with a violation as innocuous as failure to notify the INS of change of address under INA §265.
Secrecy in Immigration Court
In New York, most immigration detainees are being held at the Manhattan Detention Center in Brooklyn. The hearings are held in the Warden's office every Tuesday and Thursday. David Roy, Head of the INS Trial Attorney Unit at Varick Street, may give out information about scheduled hearings to the attorney of record.
No Release on Bond
If the client truly wants to get deported, or has no relief from deportation, one attorney has advised it is better not to request the IJ to set a bond as that would delay the proceedings and lead to prolonged detention.
About The Author
Cyrus D. Mehta, a graduate from 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 & Nationality Committee of the Association of the City Bar 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 email@example.com
This outline is based on notes prepared by the author, who was a panelist in a session entitled "Immigration After September 11" at the American Immigration Lawyers Association, New York Chapter Immigration Law Symposium on December 10, 2001, in New York City. The author thanks his co-panelists Stanley Mailman, and Steve Yale-Loehr for providing ideas and material for this outline. The author would also like to thank Rosalba Novoa, a legal assistant at the Law Offices of Cyrus Mehta, who provided invaluable assistance in preparing the outline.