Immigration Law in the Wake of September 11
November 16, 2001

If there is one word I can use to describe the mood in the immigrant communities I have contact with on a day to day basis, it would be – panic. What new immigration laws have been passed since September 11? What new enforcement measures have been implemented? Of what consequence are these new laws and measures to me as an immigrant, or as an “illegal” – present in the U.S. in violation of our immigration laws? People are confused and rumors are rampant.

Given the television and radio’s mostly sensational presentation of the issues, many, if not most, in our communities have an inaccurate sense of what new immigration laws or policies have been enacted and what they mean for their ability to carry on living in the U.S., legally or illegally.

Firstly, let me address the issue of most concern – does the U.S. Immigration & Naturalization Service have a new policy of rounding up all illegal or undocumented aliens in the U.S. now or in the near future? Although the immigration laws regarding overstaying visas, entering without a visa, or working without authorization have always been on the books, there is much more talk these days about better INS enforcement efforts being set forth, especially regarding foreign students entering on F-1 student visas. Practically speaking however, at this point, these stepped up efforts have been concentrated in Arab communities, although I have been hearing all kinds of stories about domestic airline passengers of all ethnic backgrounds having their immigration status scrutinized (and later investigated) prior to boarding. How widespread these law enforcement efforts extend in this and other contexts is unclear. In essence, however, the crackdowns on out of status or undocumented aliens seem to be focused on finding leads or links to terrorist organizations or witnesses with material information on terrorists.

As to those entering on student visas, new legislation has been enacted wherein, enhanced tracking of foreign students and their adherence to their designated educational programs will be implemented. And it is unclear how such a new program will effect those already in the U.S. on student visas, particularly those who have overstayed or are working illegally.

Whatever the person’s status in the U.S., however, it is important to note that they do have rights, a right to a hearing before an immigration judge before being deported and a right to have an attorney (at no expense to the government). Even if it means that the individual will merely be granted a period of “voluntary departure” by an immigration judge – where an opportunity to leave on your own, and at your own expense is allowed, it is important that an individual knows that he/she has the right NOT to be suddenly plucked from their home or job and put on an airplane back home without “due process under the law”. Other “illegals” who have certain U.S. family members here (spouse, parent, or child), and have accumulated more than 10 years of residence in the U.S., may have a defense to their deportation, and an opportunity to apply for “cancellation of removal” and actually be granted lawful permanent residence (“green card” status) by an immigration judge.

The USA PATRIOT Act of 2001

The “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act” otherwise knows as USA PATRIOT Act of 2001 was recently signed into law by President Bush and is the law most people have been hearing about. In addition to the enhanced student tracking program discussed above, the USA PATRIOT ACT features a wide variety of immigration related measures in support of our country’s effort to combat terrorism. Much of the law’s focus is on improving the screening of visa applicant’s abroad and those arriving into the U.S. and passing through INS inspection points – as well as heightening and developing advanced intelligence efforts to improve information sharing between government agencies such as the Department of State, FBI and Immigration & Naturalization Service. Again, the purpose and theme of these efforts, as reflected in the Act’s title, is to identify terrorists or potential terrorists and prevent them from entering or remaining in the U.S.

Also included in the USA PATRIOT Act:

  • expanded definition of the term “terrorist” and “terrorist activity”,
  • mandatory detention of suspected terrorists
  • implementation of advanced technology to preserve the integrity and authenticity of U.S. visas, U.S. passports and other entry documents
  • increased funding to triple the number of agents assigned to the U.S.’ northern border,

As our country is on a heightened level of alert, and essentially at war, most of the provisions contained the USA PATRIOT Act arguably, seem to make sense. On the other hand, as is common when a nation is enduring a time of crisis or threat, measures that go too far and compromise civil liberties are enacted. Whether all of the measures included in this new law will stand up to judicial and constitutional scrutiny remains to be seen. However, in the meantime, all important immigration related legislation or developments with consequences for both the “legal” and “illegal” factions of our communities will continue to be covered in this column..

Copyright © 2001-2008, By Law Offices of Richard Hanus, Chicago, Illinois