Why We Fight
We must all come to grips with the incontrovertible fact that special registration, BIA summary affirmance, and other recent measures are only a foreshadowing of darker things to come for the immigration practicioner. Having seen and read the accounts of those who subjected themselves to the first round of this process and seeing the results, I wonder if history will in fact repeat itself. We as Americans should remember not only the darker side of our laws like Jim Crow, the Chinese Exclusion Act, or McCarthy-era legislation but also our attitudes, then and now, towards immigrants which have changed dramatically since the September 11th attacks. On March 5, 1942, for example, the San Francisco News reported:
…At least 30 professors, lecturers and research assistants awaited decisions regarding their future. Among them are 14 Japanese, and 16 Italians and Germans. Some of the latter are refugees from Fascist and Nazi oppression who have taken out first citizenship papers. There were hopes they might be permitted to remain in the Bay Area, but little was entertained that any Japanese would escape the Army's evacuation program.
Among the faculty members who may be classified as enemy aliens, regardless of their political views, are Peter Pringsheim, lecturer and research assistant in physics, a former leading German chemist, and Dr. Richard Goldschmidt, zoologist, who has been in this country since 1916 and, like Mr. Pringsheim, has passed initial naturalization tests. [emphasis added]
On March 7, 1942, the San Francisco News also reported that:
WASHINGTON, March 7.-Rep. Carl Hinshaw (R-CA) told the House today the Administration must act speedily to evacuate all enemy aliens from the West Coast in preparation for 'a major attack' by the Japanese on Hawaii with sabotage on the Pacific Coast. [emphasis added]
Interestingly, sixty-years later, the reason cited by the Justice Department for "Special Registration" is again to protect what we hold sacrosanct and in stating "Why is the US Government doing this?" explains:
In light of the attacks against the United States on September 11, 2001 and subsequent events, and based on information available to the Attorney General, the Attorney General has determined that certain nonimmigrant aliens require closer monitoring when notational security or law enforcement interests are raised.
But does this explanation fit the measure imposed?
Does Speaking Out Also Hurt American Resolve?
Let us also not forget a preeminent leader in law and of young minds at the University of Chicago and Loyola University, this author's former professor, who to this day is not licensed to practice law because of a refusal to answer the question of whether he was or was not, a communist. A 5-4 U.S. Supreme Court vote upheld the decision in 1960. Professor Anastaplo has never joined the bar of any state to this day, even after the character & fitness board reversed its original decision in 1978. Today, intolerance for differing opinions on national security is growing. For example, in March of 2002, at the National Press Club meeting, members of the Americans for Victory Over Terrorism (AVOT's) are compiling names of individuals they consider threatening to the war on terrorism. It includes:
- Congresswoman Maxine Waters, who said, "Some of us, maybe foolishly, gave this president the authority to go after terrorists. We didn't know that he, too, was going to go crazy with it."
- President Jimmy Carter, who assailed Bush's use of the phrase "axis of evil," arguing that it was "overly simplistic and counter-productive."
- Congressman Dennis Kucinich, who accused the president of "canceling, in effect, the First, Fourth, Fifth, Sixth and Eighth Amendments" and called the war "the patriot games, the lying games, the war games of an unelected president."
- American Prospect editor Robert Kuttner criticizing "Bush's dismal domestic policies" and his "dubious notion of a permanent war."
- Lewis Lapham, the editor of "Harper's Magazine," who in a recent editorial said that Washington itself has used terrorist tactics during the 1990s, including the bombing of civilian targets in Baghdad and the Balkans.
We all know that such lists are not new. In 1947, an organization known as the House of Un-American Activities began its investigation of communism in Hollywood, also known as the "hunt for reds." This period is also an embarrassment, now remembered at awards ceremonies as the darkest time for the motion picture industry. Actors who spoke out against the blacklisting included Lauren Bacall, Groucho Marx, Ira Gershwin, Frank Sinatra, Ronald Reagan, John Huston, Danny Kaye, William Wyler, Gene Kelly, and Humphrey Bogart. Will we someday honor at awards ceremonies the same individuals who we detain today?
Another embarrassment in our legislative history and immigration policy is the Immigration & Naturalization Service's Enemy Alien Internment Program of WWII, believed to have held hundreds of immigrants. Hard to believe? Take a look at the INS' own website, where it proudly shows a photo of children "internees". Those children clearly were "enemy aliens", weren't they? The faces of these children can be seen today at http://www.ins.usdoj.gov/graphics/aboutins/history/eaperm.htm. There even is a section appropriately entitled "What Have We Done". We all know this should have been a rhetorical question.
Due Process Or Rubber Stamp?
As for the Board of Immigration Appeals, what now will happen to the Board, or some of its members for that matter, remains unknown. An appellate body in existence prior to World War II, the Board will soon exist only in spirit. Gone now is Lory Rosenberg, whose thoughtful and well-reasoned dissenting opinions reminded us of the dissenting opinions we spent weeks discussing while law students. Gone is any hope that maybe, just maybe, a written opinion will be issued so that we may at least know that our issues were considered. Here are Board opinions consisting of "one-liners". Here is the fact that Attorney General John Ashcroft will decide the fate of the remaining Board members based on the number of decisions they can muster. The LA Times reports that some Board members decide cases in less than ten minutes (or affirm the IJ's decision in that time). This, of course, can only be accomplished if the Board member works without a lunch, or any other break for that matter, for a straight nine hours. The Times also reports that 86% of all BIA appeals were rejected in October 2002 (the same month that Rosenberg quit) and that Attorney General Ashcroft has stated that one of the factors in keeping Board members is their "productivity" or the number of rulings that members make, quite an unfortunate burden on them, one would suppose. But let's see then. The Times did not mention it, but we all know that 56,000 cases on appeal divided by 23 board members (soon to be 11) is only 2,434.7826 appeals to review, or only 4,869.5652 combined respondent and trial counsel briefs to read. Can the Board members read that fast? Maybe Attorney General Ashcroft should enlist the services of Evelyn Wood, since the Times also reports that Board members, "may have little background in immigration law," and it seems as though the need for speed at the moment is paramount. I wonder if each Board member wakes up each day and wonders, "How many rulings can I crank out today?" without forgetting of course the now famous statement, "justice delayed is justice denied."
Let us also be ever so vigilant as not to forget that the term "immigration lawyer" may soon invoke a much worse connotation than some of our less fortunate peers, like the "divorce lawyer" or worse, the "ambulance chaser." How often must you now defend yourself when you tell someone that you are an "immigration attorney?" Can you avoid a discussion of 9/11? Can you avoid questions like "how do you know that your client is not a terrorist?" Sounds like the question we've heard asked of the criminal defense attorney: "How can you represent someone that's guilty?" Most importantly, however, I fear that the term "enemy aliens" will (once again) become as common to us as 245(i). Unfortunately, what is happening is nothing new, only to my generation. The precedent is already there. We need only continue to follow our fears, instead of our intellect, and our past will most certainly become our present.
About The Author
Christopher Helt, Esq. was born in Chicago, Illinois graduating from Loyola University of Chicago School of law in 1993. A previous civil rights attorney in Chicago, during the past five years his practice now concentrates in asylum, refugee and deportation/removal defense matters in federal and immigration court. He is a member of the bar to U.S. Supreme Court, the Sixth and Seventh Circuit Court of Appeals, and a past inductee in Who's Who in American law. Mr. Helt is currently an ad hoc advisor to Mayor Daley's deputy chief of staff on immigration matters in Chicago and is a frequent guest lecturer of law students at Northwestern University's School of Law. Mr. Helt represents individuals in removal matters in Chicago, Atlanta and Memphis. He can be reached at: firstname.lastname@example.org.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
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