The Impact of September 11th on America’s Immigration Laws, Policy, and Procedures

Leslie A. Holman, Esq.

There are probably few, if any, lives that have not been altered in some way by the tragic events of September 11, 2001. As the days pass, the effects of the devastation continue, trickling down to both the personal and professional portions of daily life. This is especially true for attorneys practicing immigration law. However, the immigration-related consequences of September 11th are not limited to immigration practitioners, as many attorneys deal with immigrants and immigration-related issues even if they are not performing actual immigration services. This article seeks to provide some guidance to practitioners with regard to: identifying the security-related grounds which can render an individual inadmissible to or removable from, this country; the recent changes to those and other laws as a result of the USA PATRIOT Act, signed into law by President Bush on October 26, 2001; and some practical tips regarding travel by foreign nationals both into and around the United States.

Under current immigration laws, a person can be refused admission to this country on a variety of security related grounds.[i] Of specific concern at the moment are those individuals who have engaged in or who are likely to engage in terrorist activities. Foreign nationals are inadmissible if: (1) they have engaged in terrorist activities; (2) a consular officer or the Attorney General knows or has reasonable grounds to believe that they have engaged in or are likely to engage in terrorist activity; (3) they have incited terrorist activity under circumstances indicating an intention to cause death or serious bodily harm; (4) they are representatives of a foreign terrorist organization that they know or should know is a terrorist organization; or (5) they are members of a terrorist organization.[ii] A “representative” includes an officer, official, or spokesperson of an organization, and any person, who directs, counsels, commands, or induces an organization or its members to engage in terrorist activity.[iii] Activities normally considered to be free speech in the U.S. are not considered “directing, counseling, commanding or inducing” terrorist activity unless they aid and abet the commission of a terrorist act.[iv]

A terrorist organization is an organization based in a foreign country that threatens U.S. security and threatens, conspires, or engages in terrorist activity.[v] “Terrorist activity” is any activity that is unlawful under the laws of the U.S. or of any state, and that involves any of the following: hijacking and sabotage of any conveyance; kidnapping, seizing, detaining, and threatening to kill or injure another if done to force government action; a violent attack upon an internationally protected person; assassination; use of biological, chemical, or nuclear devices, or an explosive or firearm with the intent to endanger people or property; and a threat, attempt, or conspiracy to do any of the above.[vi]

Engaging in terrorist activity means to commit, in an individual capacity or as a member of an organization, an act of terrorist activity, or an act which the actor knows, or reasonably should know, affords material support to any individual, organization, or government in conducting a terrorist activity at any time.[vii] Such activities include any of the following acts: (1) preparing or planning a terrorist activity; (2) gathering information on potential targets for terrorist activity; (3) providing any type of material support, including a safe house, transportation, communications, funds, false documentation or identification, weapons, explosives, or training to any individual the actor knows or has reason to believe has committed or plans to commit a terrorist activity; (4) soliciting funds or other things of value for terrorist activity or for any terrorist organization; and (5) soliciting any individual for membership in a terrorist organization or terrorist government or to engage in a terrorist activity.[viii]

The State Department has interpreted the law to mean that any alien who holds a leadership position in an organization that engages in terrorism may be found inadmissible solely by virtue of playing a decision-making role within that organization.[ix] This is so even if there is no evidence that the person actually has been involved in specific terrorist related activities. The rationale for this line of reasoning is that anyone who participates in determining policy and goals of an organization is by definition responsible for the actions that result from those policies and goals. For example, an alien who is an officer, official, representative, or spokesperson of the PLO is considered to be engaged in a terrorist activity.[x] However, mere membership in the organization is not grounds for the denial of a visa.[xi]

In addition to the above, there are several other security-related reasons that will render an alien inadmissible to this country. A foreign national will also be refused admission to this country if a consular officer or INS inspector knows, or has reason to know, that the individual is coming into the United States to engage in espionage or sabotage or they are intending to export goods or technology that has been identified as not for export.[xii] This section often affects foreign students coming to the United States to study in a field listed on the State Department’s Technology Alert List. Applicants coming to study in these fields are closely scrutinized and usually must obtain a security advisory opinion from the State Department before their admission is approved. Security advisory opinions are also required for nationals of countries that sponsor terrorism. Prior to September 11th, the security advisory requirement was often waived; however, it is unlikely that this step will be bypassed in the foreseeable future.

If an alien’s entry into the United States would have adverse consequences on U.S. foreign policy, that person is inadmissible.[xiii] Currently, a person is not deemed inadmissible because of past statements that, if made in the United States, would be legal, unless the person’s entry would compromise competing U.S. foreign policy interests. In addition, this ground of inadmissibility does not apply to officials of a foreign government if the refusal to admit them is based solely upon statements they have made and their admission would not have a negative impact on foreign policy.[xiv] While this ground of inadmissibility has not been much applied in years past, it will be interesting to see how it is applied in the aftermath of September 11th.

Membership in a communist or totalitarian party also renders an alien inadmissible.[xv] There are, however, numerous exceptions to this ground. The most notable relates to membership that occurred before the age of 16, was involuntary, occurred by operation of law, or was necessary to obtain a job. People who are close family members of U.S. citizens and permanent residents are eligible for a waiver of this ground of inadmissibility.[xvi]

Finally, participants in Nazi era persecutions and individuals who have engaged in genocide and genocide-related activities are also inadmissible.[xvii]

Despite the presence and availability of the above-mentioned grounds of inadmissibility, it is clear that current security measures were not enough to protect our country from terrorist attack. In an immediate attempt to provide greater protection to America in the aftermath of September 11th, an anti-terrorism bill was introduced within two weeks of the bombings.[xviii] In its initial form the bill, if passed as written, would have seriously eroded civil liberties. For example, the amendments sought to allow the removal of an alien without any hearing or evidence if the Attorney General certified that he “had reason to believe” the alien may further acts of terrorism as defined by 8 U.S.C. ¿237 (a)(4). The INS commissioner would have been given the authority to “recommend” to the Attorney General that an alien be so certified and this recommendation would not have been reviewable by any court. Further, once certified the alien would be subject to expedited removal which permits administrative removal, without a hearing before an immigration judge, for certain aliens. Upon being certified the alien also could have been held in custody indefinitely, irrespective of any relief from removal that would normally be available, until the Attorney General deemed that the alien should no longer be certified. The initial proposal also provided for super-retroactivity such that it would have applied to all aliens, even those who entered the United States before the enactment of the Bill or whose conduct occurred before its passage, and it would have applied to all past, pending, or future deportation, exclusion, removal, or other immigration proceedings.

Significant congressional opposition by many representatives to certain of the bill’s more questionable provisions were struck down and compromises were reached. On October 24 and October 25, 2001, the House and Senate, respectively, passed the USA PATRIOT (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism) Act (“the Act”). With regards to immigration consequences, the Act is less restrictive than the earlier proposal and it includes numerous specific provisions intended to benefit the surviving family members of victims of the attack.

The Act adds new grounds of inadmissibility for representatives of foreign terrorist organizations or any group that publicly endorses acts of terrorism.[xix] Spouses and children of such aliens will also be inadmissible. It provides new unreviewable authority to the Secretary of State to designate any group, foreign or domestic, as a terrorist organization upon publication in the Federal Register.[xx] Under the Act any fundraising, solicitation of membership, or material support, even for humanitarian projects, of groups that are designated terrorist organizations is a deportable offense regardless of whether such activities were in furtherance of actual terrorist activity.[xxi]

The Act also provides methods for dealing with aliens already present in the United States who are suspected of terrorist activities. Specifically, the Attorney General or the Deputy Attorney General (there is no power of delegation) may certify an alien as a terrorist if reasonable grounds exist to believe the alien is a terrorist or has committed a terrorist activity.[xxii] Any alien so certified must be detained, and such persons must remain in custody irrespective of any relief from removal for which they may be eligible. Persons finally determined not removable must be released.[xxiii] The Attorney General shall review certifications every six months. If, in the Attorney General’s discretion, it is determined that the certification should be revoked the person may be released. Any certified person may request a reconsideration of the certification every six months and submit documents or evidence to support that request.[xxiv]

In addition, the Act authorizes the INS to detain for seven days any alien suspected of terrorist activities. Aliens not charged within that time, must be released. There is habeas review for the detention and the basis for the certification. Judicial review by habeas can be in any district court having jurisdiction to entertain it. The detention of any person who is found to be removable under the Act and who is detained under the provisions beyond the removal period must be reviewed every six months. Continued detention is allowed only upon a showing that “the release of the alien will endanger the national security of the U.S. or the safety of the community or any person.”[xxv]

Once it became known that several of the hijackers had entered the United States under student visas, the immigration laws pertaining to foreign students came under attack. In direct response, the Act includes provisions to increase monitoring of foreign students in this country. In actuality, the provisions contained in the Act were already contained in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, which mandated the creation of a database to store information about international students.[xxvi] To help fund and maintain the database, a $95 fee was to have been collected from student-visa holders. The 1996 Act met with much resistance due to disagreement as to who would actually be responsible for the fee and data collection. As a result it has been implemented only on a limited basis by a few designated schools. The USA PATRIOT Act requires the full implementation of the student visa monitoring program and it expands the program to include all educational institutions that are approved to receive foreign students.[xxvii]

The Act also provides for the preservation of certain immigration benefits for the victims of terrorism.[xxviii] Under current immigration laws immigrant petitions are tied to a U.S. petitioner whether they are employment- or family-based. In the event that the family or employment relationship ceases, the petition is revoked or terminated. The Act specifically provides for special immigrant status to any alien whose family- or employment-based immigrant petition was revoked or terminated due to death, disability, or loss of employment (due to the physical damage or destruction of the business) of the petitioner. Similar protections and special protections are provided to spouses and children who were following to join their petitioning relative and to the grandparents of any child whose parents died in the attack.

Other humanitarian relief is provided for in the Act to certain surviving spouses and children of victims of the attack.[xxix] The Act also extended certain filing and re-entry deadlines in particular situations.[xxx] For example, under current law, an alien who was the spouse of a U.S. citizen for at least two years before the citizen died remains eligible for immigrant status as an immediate relative.[xxxi] The Act provides that if the citizen dies as a direct result of the terrorist attacks, the two-year requirement is waived.[xxxii] In addition, the Act extends filing deadlines affected by the disaster and allows pending applications for permanent residence to be completed as if the sponsoring person was still alive.[xxxiii]

In addition to the changes that will be made to current immigration laws, practitioners should be aware of some of the procedural changes that are occurring with respect to travel by their non-U.S. citizen clients. Foreign nationals seeking to enter the U.S. are undergoing closer scrutiny at ports of entry. Even lawful permanent residents – “green card” holders – are experiencing additional inquiries into the validity of their documents. In the past, a green card was sufficient for reentry; however, today it is suggested that permanent residents have available at least one additional form of photo identification and at least two other documents to show retention of lawful permanent residence in the United States. These could include the filing of tax returns and other significant documents evidencing their residence in the United States.

Similarly, non-immigrant workers seeking to reenter the United States should be able to present at the time of entry, not only their visa, but other documentation that establishes their identity and their right to reenter and work. Approval notices, letters from employers, and birth certificates are suggested. Passports should be valid for a period of six months past the expiration of the alien’s authorized stay in the United States. While most of these travel precautions are intended to apply to individuals traveling outside of the United States, there have been reports of such additional documentation being requested for foreign nationals traveling domestically.

The events of September 11th have also had negative consequences upon immigrants and intending immigrants. There is now a temporary moratorium on refugee admissions to the United States Refugees who have already been approved for entry are being detained outside of the United States and no date has been established as to when the moratorium will be lifted. Further, newspapers around the country report concern for growing anti-Arab sentiment and Middle Eastern immigrant communities are furnishing reports of people being questioned, detained, victimized, and/or attacked merely as a result of their ethnicity. If one believes that they or their client has been the recipient of a racially motivated incident either by a private individual or by the authorities they should call the ACLU, the National Lawyer’s Guild, or the Anti-Arab Anti-Discrimination Committee.

From a practical standpoint, immigration practitioners around the nation are reporting that the requirements for nonimmigrant visas are being applied more stringently than before September 11th. This is especially true in the area of visa extensions. Generally, renewals for certain visa types, specifically L and H visas, should be relatively pro forma if nothing has changed since the original application was made. However, extension applications in those cases where the employment situation has remained the same since the original application was filed, are being scrutinized anew and denied more frequently than before the attack. Thus, attorneys and their clients should take special care to re-document carefully their qualifications and spell out why they are entitled to the benefit they are seeking, even if they have already done so in the past. In addition, because all aliens are being scrutinized more carefully, it is imperative that clients be advised not to let their status lapse. While this should always be a top priority, it is so now more than ever because the authorities will be less likely to exercise discretion in favor of the alien.

In addition last week the State Department announced that all men between the ages of 16 and 45 from certain Arab and Muslim countries will be subject to a waiting period on non-immigrant visa applications. This waiting period will add up to 20 days to their application process. These applicants will also have to complete a new background questionnaire that seeks information regarding military service, weapons training, previous travels and whether the applicant has previously held any other passports.

Immigration is central to our history as a nation. We are all either immigrants or descendents of immigrants. People from all parts of the world came here because they believed in freedom, democracy, and justice. These are the people who built our country. Immigrants continue to bring new ideas and skills to the United States that contribute to our social, economic, and cultural growth. Unfortunately, the unspeakable terrorism perpetrated by a few religious zealots on September 11th is fostering a climate of insecurity and fear in our country. Aliens could easily become the natural scapegoats. While isolationism may be a natural and human reaction to our anger and fear, it is not the answer. Instead, we must beef up security with regard to entry in and out of the country with new laws that increase security and preserve fundamental protections and liberties.

Thankfully, the Statue of Liberty still endures in the shadow of where the World Trade Center once stood. In the poem engraved on her pedestal, Emma Lazarus named her the “Mother of Exile” and delegated to her the job of rearing the tired, the poor, the homeless, and the huddled masses “yearning to breathe free.” Hopefully, and despite the horrific events of September 11th, she will continue to welcome those who seek to enter or remain in this country as she has done for countless generations.

[1] INA ¿212 (a)(3).
[1] Id. ¿212 (a)(3)(B).
[1] Id. ¿212 (a)(3)(B)(iv).
[1] Foreign Affairs Manual Note 6.6(2)(1).
[1] INA ¿219 (a).
[1] Id. ¿212 (a)(3)(B)(ii).
[1] Id. ¿212 (a)(3)(B)(iii).
[1] Id.
[1] Foreign Affairs Manual Note 5 to 22 C.F.R. ¿40.32.
[1] INA ¿212 (a)(3)(B)(i)(V).
[1] Foreign Affairs Manual Note 8 to 22 C.F.R. ¿40.32.
[1] INA ¿212 (a)(3)(A).
[1] Id. ¿212 (a)(3)(C).
[1] Id.
[1] Id. ¿212 (a)(3)(D).
[1] Id. ¿212 (a)(3)(D)(iii).
[1] Id. ¿212 (a)(3)(E).
[1] ______________________________
[1] USA PATRIOT Act, H.R. 3162, _____________. ¿411.
[1] Id.
[1] Id.
[1] Id. ¿412.
[1] Id.
[1] Id.
[1] Id.
[1] INA ¿101 (a)(15)(F).
[1] USA PATRIOT Act, ¿416.
[1] Id. ¿421.
[1] Id. ¿423.
[1] Id. ¿422.
[1] INA ¿204 (a)(1)(A)(iii)(II)(CC).
[1] USA PATRIOT Act, ¿423.
[1] Id. ¿422.