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Bloggings on Immigration Law

by Roger Algase

A few more thoughts about the effect of 9/11 on immigration

Much has been written about specific pro-immigrant reforms which may have have been under consideration before 9/11 but were put on hold, or into the dust bin of immgration history after the attacks of 10 years ago. To mention only one small example, as I recall, the INS had announced during the summer of 2001 that it was planning to publish a rule providing for a 60-day grace period, similar to the one for F-1 students who finish or drop out of school, for H-1B workers who finish or leave their jobs for any reason.

The fairness of such a rule would have been obvious. Many H-1B employees are here with families, homes that they own, and children in school. To expect them to leave the US immediately upon leaving their jobs, or, as is often the case, losing them suddenly with little or no advance notice, would strike even the average five year old child as unfair. It is scandalous that not only was publishing this proposed rule scrapped in the wake of 9/11, but in the 10 years since it has not even been considered by immigration officials who like to call themselves adults.  

The same applies to the absurdly short 10-day grace period upon completion of a full term of H-1B employment. Has denying a realistic grace period to H-1B professional workers made America safer from attack during the past 10 years? Again, this is only one small example of how the 9/11 attacks were used as a cover for pre-existing anti-immigrant attitudes among both the general public and the immigration bureaucracy.

On a larger scale, before 9/11, immigration was regarded as a branch of law enforcement and was mainly under the authority and control of the Department of Justice (with, of course, supporting roles for the State Department and Labor Department, as is still the case). This made sense, because the basic concept behind having a Department of Justice is that its actions should be governed by the rule of law. However, after 9/11, primary responsibility for immigration was transferred to the newly created Department of Homeland Security.

The implied idea behind this was that immigrants, all of them, are potentially dangerous to the US. Never before in US history, even in times of restrictive measures such as the Chinese exclusion laws or the 1924 immigration act, was the immigrant community in general stigmatized by being tarred with such a broad brush. Inherent in the notion of immigration as primarily a security issue is the assumption that the rule of law is no longer fundamental. Even trumped up threats to US security may take precedence over complying with the laws or the Constitution. Just ask Mr. Cheney.

I would like to propose that instead of looking at immigration as either primarily a law enforcement or national security issue, important as these two issues are and always will be, immigration should be a branch of the law of human rights. I will venture to predict that this area of law will become increasingly well recognized and important during this century.

For example, environmental law, which did not even have a separate heading in the West Digest in the early 1970's if I remember correctly, is now so important that one of our leading presidential candidates wants to abolish the EPA entirely, and large polluters need to spend billions of dollars in campaign contributions so that ordinary Americans (and immigrants) can continue to choke on dirty air and drink poisoned water. In the same way, human rights law will become the true legal foundation for the 21st century.

Does this mean that there is a "human right" on the part of everyone in the world to come to or live in the United States? Absolutely not. The idea of human rights does not include something that is patently absurd. But it does mean that the right to certain fundamental legal protections and to be treated fairly by the justice system should not depend on one's citizenship. It also means that the immigration system should be based on our common humanity, not artificial divisions.

2,000 years ago, the Roman philosopher Seneca wrote that there were two types of citizenship: the one assigned to us by an accident of birth, and the other to be measured by the path of the sun. American has already had enough experience with the first kind of citizenship. If there is any lesson to be learned from 9/11 at all, it is that the time to focus on the second kind of citizenship has now arrived.


About The Author

Roger Algase is a graduate of Harvard College and Harvard Law School. He has been practicing business immigration law in New York City for more than 20 years.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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