CHAPTER 2
IMMIGRATION LAWS AND POLICIES SINCE THE 1980s

Remember, remember always, that all of us … are descended from immigrants and revolutionists.

—Franklin D. Roosevelt

In "Immigration: Shaping and Reshaping America" (Population Bulletin 58, no. 2, June 2003), Philip Martin and Elizabeth Midgley point out that before the 1980s, U.S. immigration laws might have changed once in a generation, but the quickening pace of global change since 1980 brought major new immigration legislation in 1986, 1990, and 1996. The September 11, 2001, terrorist attacks led to antiterrorism laws that had considerable impact on immigration policies and procedures, and that effected changes to immigration legislation. This chapter covers the most significant immigration laws from the 1980s to 2005.

THE IMMIGRATIOIN REFORM AND CONTROL
ACT OF 1986 (IRCA)

On November 6, 1986, after thirty-four years with no new major immigration legislation and a six-year effort to send an acceptable bill through both houses of Congress, the Immigration Reform and Control Act of 1986 (IRCA; PL 99-603) was signed into law by President Ronald Reagan. IRCA tried to resolve the following problems:

• Jobs lost by citizens and taken by illegal aliens, with resulting lower wages paid to illegal aliens
• Costs of services and welfare for illegal aliens and their low tax payments
• Exploitation of illegal aliens
• Social fragmentation of local communities
• The need to reestablish the power of law and the principle of U.S. sovereignty

To control illegal immigration IRCA adopted three major strategies:

• Legalization of a portion of the undocumented population (aliens in the country without legal papers), thereby reducing the number of aliens illegally resident in the United States
• Sanctions against employers who knowingly hired illegal aliens
• Additional border enforcement to impede further unlawful entries

The "Pre-1982 Cohort"

Two groups of immigrants became eligible to apply for legalization under IRCA. The largest group consisted of those who could prove they had continuously resided in the United States without authorization since January 1, 1982. This large group of aliens had entered the United States in one of two ways: (1) they could have arrived as illegal aliens before January 1, 1982; or (2) they may have been temporary visitors before January 1, 1982, with their authorized stay expiring before that date or with the government's knowledge of their unlawful status before that date. The latter category would include those who arrived legally on a tourist visa and then stayed to work and live illegally in the United States.

To adjust to the legal status of permanent resident, aliens were required to prove eligibility for admission as immigrants (with no serious criminal record and a negative test for HIV, the virus that causes AIDS), and have at least a minimal understanding and knowledge of the English language and U.S. history and government. They could apply for citizenship five years from the date permanent resident status was granted. Illegal aliens who did not apply for residence could no longer remain in the United States and adjust to permanent resident status unless they were immediate relatives of U.S. citizens.

Special Agricultural Workers (SAWs)

The second group of immigrants to become eligible to apply for legalization under IRCA were referred to as Special Agricultural Workers (SAWs). This category was created because many fruit and vegetable farmers feared they would lose their workers, many of whom were illegal aliens, if the IRCA provisions regarding length of continuous residence were applied to seasonal laborers. Most of these workers were migrants who returned home to live in Mexico when there was no work available in the fields. The SAW program permitted aliens who had performed labor in perishable agricultural commodities for a minimum of ninety days between May 1985 and May 1986 to apply for legalization.

HOW MANY WERE LEGALIZED?

The Immigration and Naturalization Service (INS) estimated that three to five million illegal aliens were living in the United States in 1986. As shown in Table 2.1, more than three million aliens applied for temporary residence status under IRCA. Nearly 2.7 million (88%) of these applicants were eventually approved for permanent residence. By 2001, one-third (889,033) of these applicants had become naturalized citizens.

PROFILE OF THE LEGALIZED POPULATION.

A majority (75%) of applicants under IRCA provisions were born in Mexico according to the INS. Table 2.1 shows that by 2001 a higher percentage of pre-1982 entrants (40%) had been naturalized than had SAW applicants (23%). According to Nancy Rytina in "IRCA Legalization Effects: Lawful Permanent Residence and Naturalization through 2001" (paper presented at the conference The Effects of Immigrant Legalization Programs on the United States, Bethesda, Maryland, October 25, 2002), more of the pre-1982 entrants came to America with the intention of naturalizing, were better educated, and had a better grasp of the English language than the SAWs.

IRCA barred newly legalized aliens from receiving most federally funded public assistance for five years. Exceptions included access to Medicaid for pregnant women, children, the elderly, the handicapped, and for emergency care. The State Legalization Impact Assistance Grant (SLIAG) program reimbursed state and local governments the costs for providing public assistance, education, and public health services to the legalized aliens. The Department of Health and Human Services, which administered SLIAG, reported that the program reimbursed states $3.5 billion, averaging $1,167 per eligible legalized alien, during its seven years of operation (David Simcox, Measuring the Fallout: The Cost of IRCA Amnesty After 10 Years, Washington, DC: Center for Immigration Studies, May 1997).

Employer Sanctions

The employer sanctions provision of IRCA was intended to correct a double standard that prohibited unauthorized aliens from working in the United States but permitted employers to hire them. IRCA prohibited employers from hiring, recruiting, or referring for a fee aliens known to be unauthorized to work in the United States. Employers who violated the law were subject to a series of civil fines or criminal penalties when a pattern or practice of violations was found.

The burden of proof was on employers to demonstrate that their employees had valid proof of identity and were authorized to work. IRCA required employers to complete the Employment Eligibility Verification form, known as Form I-9 (see Figure 2.1), for each employee

hired. In completing the form the employer certified that the employee had presented valid proof of identity and eligibility for employment, and that these documents appeared genuine. Table 2.2 lists documents acceptable for proof of identity and employment eligibility. (A number of the documents were later deleted from the list, as noted at the bottom of Table 2.2. The Bureau of Citizenship and Immigration Services announced a revised version of Form I-9 and the list of eligible documents, to be available sometime in 2005.) IRCA also required employers to retain the completed I-9 forms and produce them in response to an official government request.

IMMIGRATION MARRIAGE FRAUD
AMENDMENTS OF 1986

Prior to 1986 the INS granted permanent residence fairly quickly to the foreign spouses of U.S. citizens or lawful permanent residents (LPRs). However, a number of marriages between American citizens or LPRs and foreigners occurred in order to attain U.S. permanent residence status for the foreigner. Some American citizens or LPRs agreed to marry aliens for money. After the alien gained permanent residence, the marriage was dissolved. Other cases involved aliens entering into marriages by deceiving U.S. citizens or LPRs with declarations of love, only to seek divorce after gaining permanent residence.

Concerns regarding alleged marriage fraud led to the passage of the Immigration Marriage Fraud Amendments of 1986 (PL 99-639). The law specified that aliens basing their immigrant status on a marriage of less than two years were considered conditional immigrants. To remove the conditional immigrant status, the alien had to apply for permanent residence within ninety days after the second-year anniversary of receiving conditional status. The alien and his or her spouse were required to show that the marriage was and continued to be a valid one; otherwise, conditional immigrant status was terminated, and the alien could be deported.

Battered Brides

Unfortunately, cases of spousal abuse were an unintentional result of the two-year conditional immigrant status. Particularly in cases of mail-order brides and brides from countries where women had few, if any, rights, some husbands took advantage of the power they had as the wife's sponsor. The new wives were dependent on their husbands to obtain permanent U.S. residence. Reports surfaced with the Department of Justice about wives who were virtual prisoners, afraid they would be deported if they defied their husbands or reported abuse. In addition, some of the women came from cultures in which divorced women were outcasts with no place in society.

Subsequently two laws were passed to address the plight of such abused women and their children: the Violence Against Women Act (VAWA) of 1994—part of the Violent Crime Control and Law Enforcement Act of 1994 (PL 103-322)—and the Victims of Trafficking and Violence Prevention Act (PL 106-386) of 2000. The 1994 law allowed the women and/or children to self-petition for immigrant status without the abuser's participation or consent. Abused males could also file a self-petition under this law. The 2000 law created a new nonimmigrant U-visa for victims of serious crimes. Recipients of the U-visa, including victims of crimes against women, could adjust to lawful permanent resident status based on humanitarian grounds as determined by the U.S. attorney general.

THE IMMIGRATION ACT OF 1990 (IMMACT)

It took six years of commitment and negotiation to pass the 1986 Immigration Reform and Control Act. Almost as soon as that law was passed, Senators Edward Kennedy (a Democrat from Massachusetts) and Alan Simpson (a Republican from Wyoming) began work to change the Immigration and Nationality Act Amendments of 1965 (PL 89-236), which determined legal immigration into the United States. Senators Kennedy and Simpson claimed that the "family-oriented" system allowed one legal immigrant to bring too many relatives into the country. Instead, they wanted immigration policy to cut back the number of dependents admitted and replace them with individuals who had the skills or money to immediately benefit the American economy.

The result was the Immigration Act of 1990 (IMMACT; PL 101-649). Enacted on November 29, 1990, IMMACT represented a major overhaul of immigration law. The law's focus was to increase the numerical limits on immigrants and change the preference system, giving a greater priority to employment-based immigration. The law also created a diversity program enabling immigrants from countries that had been ignored in the recent past to be admitted more easily to the United States.

The total number of immigrants was set at 700,000 annually from FY 1992 through FY 1994 and then revised to an annual level of 675,000 beginning in FY 1995. (FY stands for fiscal year. The government fiscal year begins on October 1 and ends on September 30 of the following calendar year.) The 675,000 level allowed 480,000 family-sponsored immigrants, 140,000 employment-based immigrants, and 55,000 immigrants who were eligible under the diversity program.

Employment-Based Immigration

IMMACT nearly tripled the allowed level of employment-based immigration—from 54,000 to 140,000. The goal was to attract professional people with skills that would promote economic development in the United States. This was in contrast to the unskilled workers who were legalized through IRCA. The allotment of 140,000, however, included both workers and their families so the actual number of workers was considerably lower. IMMACT allocations included:

• Preference 1—forty thousand visas for priority workers with extraordinary ability, outstanding professors and researchers, and certain multinational executives and managers
• Preference 2—forty thousand visas for members of the professions holding advanced degrees or aliens of exceptional ability, both requiring the Secretary of Labor to certify that U.S. workers were not available and would not be hurt by the aliens' admission
• Preference 3—forty thousand visas for skilled workers with at least two years of vocational training or experience, professionals with the equivalent of a college degree, or needed unskilled workers (limited to ten thousand), all requiring labor certification
• Preference 4—ten thousand visas for special immigrants, including ministers of religion, persons working for religious organizations, foreign medical graduates, alien employees of the U.S. government abroad, and alien retired employees of international organizations, of which not more than five thousand could be religious workers
• Preference 5—ten thousand visas for employment-creation investors who invested at least one million dollars (or $500,000 in rural areas or areas of high unemployment) to create at least ten new jobs

Diversity Visa Program

IMMACT made new provisions for the admission of immigrants from countries with low rates of immigration to the United States. The program was introduced as a temporary or transitional program from 1992 to 1994. In the first year of the diversity program (1992) the INS ran a lottery; the "winners" were chosen based on the chronological order of the receipt of the visa applications. Applicants were permitted to file multiple applications to improve their chances. In 1993 and 1994, selections were made randomly rather than by chronological receipt of applications. In addition, only one application per immigrant was permitted. The permanent Diversity Visa Program began in 1995.

Under the permanent program, initially no country was permitted more than 7% (3,850) of the total 55,000 visas, and Northern Ireland was treated as a separate state. To be eligible, aliens were required to have at least a high school education or its equivalent, or at least two years of work experience in an occupation that required a minimum of two years training or experience. The work experience had to be within the past five years. A person selected under the lottery program could apply for permanent residence and, if granted, the person was authorized to work in the United States. The individual's spouse and unmarried children under the age of 21 were also allowed to enter the United States.

Beginning with fiscal year 1999, the number of visas was reduced to fifty thousand so that five thousand visas could be allotted to participants in the 1997 Nicaraguan Adjustment and Central American Relief Act (NACARA; PL-105-100). This law provided various immigration benefits and relief from deportation to certain Nicaraguans, Cubans, Salvadorans, Guatemalans, nationals of former Soviet-bloc countries, and their dependents.

Results of the 2005 Diversity Lottery

The U.S. Department of State reported that 5.9 million qualified applications were received for the 2005 lottery during the sixty-day period November 1 to December 30, 2003 (Diversity Visa Lottery 2005 Results, Washington, DC: Bureau of Consular Affairs, U.S. Department of State, April 15, 2005). Assuming that some of the applicants would not pursue their visas, a total of 100,000 applications were drawn at random by a computer. Table 2.3 lists the FY 2005 lottery results by regions and countries.

According to the U.S. Department of State, between 2.5 and 3 million applications are rejected each year for failing to follow directions or because they were received outside of the submission period (U.S. House of Representatives Judiciary Committee, Security and Fairness Enhancement for America Act of 2003, 108th Congress, 2d session, October 6, 2004, H. Rept. 108-747). Of the 90,000 to 110,000 lottery "winners" each year, about 45% either fail to meet the minimum educational, work experience, or training requirements; fail to supply the required medical information; or fail to complete the additional required paperwork fully or on time. The remaining qualifying "winners" were issued diversity visas on a first-come, first-served basis until the requisite number of visas were issued or the fiscal year ended (September 30, 2005, for the 2005 lottery). Winners already living legally in the United States could apply to have their status adjusted.

For the fiscal year 2005 application period, natives of the following countries were ineligible to apply: Canada, China (mainland-born), Colombia, Dominican Republic, El Salvador, Haiti, India, Jamaica, Mexico, Pakistan, Philippines, Russia, South Korea, the United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam. However, persons born in Hong Kong SAR (Special Administrative Region), Macau SAR, and Taiwan were eligible.

On February 10, 2005, the U.S. Department of State announced that more than 6.3 million entries were received for the 2006 Diversity Visa Lottery ("2006 Diversity Lottery Registrations," http://www.state.gov/r/pa/prs/ps/2005/42131.htm). The two-month electronic registration period ran from noon on November 5, 2004, through noon, January 7, 2005. New antifraud technology in use for the 2006 Diversity Visa Lottery detected 31,334 exact duplicates, which were eliminated from the eligible entry pool. An additional 5,221 fraudulent entries were eliminated through the utilization of facial recognition and knowledge discovery software.

Efforts to End the Diversity Visa Program

In 2003 a bill was introduced in the U.S. House of Representatives to eliminate the diversity program. In its October 6, 2004, report in favor of the bill (Security and Fairness Enhancement for America Act of 2003, H. Rept. 108-747), the Judiciary Committee noted that it was commonplace for aliens to file multiple applications for the lottery using different aliases. The report stated that a partial check on applications filed in the 2003 lottery identified 364,000 duplicates. The report further noted that fraudulent documents were common in many countries due to poor control of vital records and identity documents. In addition to entry fraud, the visa lottery program had spawned a cottage industry of websites that offered to help applicants win the lottery for a fee. The problem became so widespread that the government posted electronic notices warning applicants that paying someone a fee to complete their application would not improve their chances in a random lottery drawing.

According to the Judiciary Committee report, the Diversity Visa Program posed a threat to U.S. national security. It noted that in the fiscal year 2004 lottery "24 Libyans, 1,183 Sudanese, 1,431 Iranians, 4 North Koreans, 64 Syrians, and 674 Cubans were selected. Each country is a state-sponsor of terrorism." While the report noted that the Department of State had implemented an electronic facial recognition system for processing applicants and had increased the verification of background information, the Judiciary Committee suggested that these efforts were not sufficient protection. At an April 29, 2004, hearing on the Diversity Visa Program before the House of Representatives Subcommittee on Immigration, Border Security, and Claims (House Judiciary Committee, Diversity Visa Program and Its Susceptibility to Fraud and Abuse, 108th Congress, 2d session, serial 82), Anne Patterson, Deputy Inspector General with the State Department, testified that the program "contains significant vulnerabilities to national security as hostile intelligence officers, criminals, and terrorists attempt to use it to enter the United States as permanent residents."

The Judiciary Committee report cited two specific examples of individuals, both admitted as family members of lottery "winners," who later were involved in

terrorist activity. In one case a man who entered as a visitor applied for asylum, and was in deportation proceedings when his wife became a diversity lottery winner. As her spouse, the man was able to adjust his status. He was a lawful permanent resident when he killed two people and wounded several others in an incident at Los Angeles International Airport. In the second case, a man entered the United States with his parents who were lottery winners. In 2002 he pleaded guilty to conspiring to destroy buildings, affecting interstate commerce by means of fire or explosives.

Changing Grounds for Entry

IMMACT changed the political and ideological grounds for exclusion and deportation. The law repealed the ban against the admission of communists and representatives of other totalitarian regimes that had been in place since 1950. In addition, immigration applicants who had been excluded previously because of associations with communism were provided exceptions if the applicants had been involuntary members of the communist party, had terminated membership, or merely had close family relationships with people affiliated with communism.

Temporary Protected Status

IMMACT authorized the U.S. attorney general to grant temporary protected status (TPS) to undocumented alien nationals present in the United States when a natural disaster, ongoing armed conflict, or other extraordinary occurrence in their countries posed a danger to their personal safety. TPS lasted for six to eighteen months unless conditions in the alien national's country warranted an extension of stay.

TPS did not lead to permanent resident status, although such aliens could obtain work authorization. Foreign nationals who had been convicted in the United States of either a felony or two or more misdemeanors were not eligible for TPS. Once the TPS designation ended, the foreign nationals resumed the same immigrant status they had before TPS (unless that status had expired) or returned to any other status obtained while in TPS.

According to a January 7, 2005, posting on the Bureau of Citizenship and Immigration Services Web site (www.uscis.gov/graphics/services/tps_inter.htm), TPS reregistration periods ended December 6, 2004, for nationals of Burundi and Sudan and January 3, 2005, for Honduras and Nicaragua. TPS ended February 27, 2005, for Montserrat. TPS registration periods were established August 24, 2004, to February 21, 2005, for Liberia, and January 7 to March 8, 2005, for El Salvador.

THE WELFARE REFORM LAW OF 1996

Under Title IV of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA; PL 104-193)—also called the Welfare Reform Law—federal welfare benefits for legal immigrants were cut substantially and the responsibility for public assistance was shifted from the federal government to the states. (Illegal immigrants were already ineligible for most major welfare programs.) The law was designed to ensure that available welfare benefits did not serve as an incentive for immigration and that immigrants admitted to the United States would be self-reliant.

In the past, legal immigrants had generally been eligible for the same welfare benefits as citizens. Under the new rules, immigrants who had become naturalized citizens remained eligible for federal benefits, but most noncitizens were barred from participating in federal programs such as Temporary Assistance for Needy Families (TANF), food stamps, Supplemental Security Income (SSI), and Medicaid. The states were given the option of using federal funds for TANF and Medicaid for immigrants who arrived before the act took effect. Immigrants who arrived legally after the law took effect were ineligible for any federal funds until five years had elapsed; the states then had the option of granting their applications for TANF and/or Medicaid. As of December 2004, TANF was extended to March 31, 2005, pending reauthorization. (Medicaid is a joint federal-state health insurance program for certain low-income and needy people, while TANF is the federal block grant program for needy families with dependent children that replaced the Aid to Families with Dependent Children, Emergency Assistance, and Job Opportunities and Basic Skills programs.)

Restoration of Government Benefits

With support from both Democrats and Republicans, and intense lobbying by immigration advocates, on August 15, 1997, the Balanced Budget Act (PL 105-34) restored SSI and Medicaid benefits to legal immigrants who were receiving these benefits when the welfare reform law was passed.

On October 28, 1998, the Noncitizen Benefit Clarification and Other Technical Amendments Act of 1998 (PL 105-306) amended the welfare reform law, requiring that nonqualified aliens who were receiving SSI and Medicaid benefits on August 22, 1996, could retain these benefits.

FOOD STAMPS.

In 1997, when the food stamp restrictions went into effect, an estimated 940,000 of the 1.4 million legal immigrants receiving food stamps lost their eligibility. Nearly one-fifth were immigrant children. In Welfare Reform: Many States Continue Some Federal or State Benefits for Immigrants (Washington, DC, July 1998), the U.S. General Accounting Office (GAO) reported to the Senate Subcommittee on Children and Families that in 1997 and 1998, fourteen states had created food stamp programs that served about one-quarter of this immigrant group nationwide. Most recipients were children, the elderly, and the disabled. Some states continued to provide food assistance to ineligible legal immigrants.

In June 1998 the Agricultural Research, Extension, and Education Reform Act (PL 105-185) restored food stamp benefits to approximately 250,000 legal immigrants who would otherwise have been ineligible. According to a July 2002 estimate from the Food Research and Action Center, the Farm Security and Rural Investment Act of 2002 (PL 107-171), also known as the Food Stamp Reauthorization Act, restored access to food stamps to 400,000 legal immigrants (Food Stamp Participation Increases in July 2002, Washington, DC, October 2, 2002). As of December 2004, eight states provided food assistance to certain immigrants who were ineligible for federal food stamp benefits as a result of welfare reform. (See Table 2.4.)

Welfare Reform Does Not Diminish Immigrant
Dependence

A March 2003 report from the Center for Immigration Studies asserted that PRWORA had failed to cut immigrants' use of welfare (Steven A. Camarota, "Back Where We Started: An Examination of Trends in Immigrant Welfare Use Since Welfare Reform," Backgrounder, Washington, DC, March 2003). The report contended that "[i]n 1996, 22% of immigrant-headed households used at least one major welfare program, compared to 15% of native households. After declining in the late 1990s, welfare use returned to 1996 levels by 2001, with 23% of immigrant households using welfare compared to 15% of native households."

ILLEGAL IMMIGRATION REFORM AND
IMMIGRANT RESPONSIBILITY ACT (IIRIRA)
OF 1996

On September 30, 1996, the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA; PL 104-208) became law. In an effort to reduce illegal immigration, IIRIRA included the following among its many provisions:

• Required doubling the number of U.S. Border Patrol agents to 10,000 by the year 2001 and increasing equipment and technology at air and land ports of entry
• Authorized improvements of southwest border barriers
• Toughened penalties for immigrant smuggling (up to ten years in prison, fifteen years for third and subsequent offenses) and document fraud (up to fifteen years in prison)
• Increased the number of INS investigators for work site enforcement, tracking aliens who overstayed visas, and investigating alien smuggling
• Increased detention space for criminals and other deportable aliens
• Instituted a new "expedited removal" proceeding (denial of an alien's entry into the United States without a hearing) to speed deportation of aliens with no documents or with fraudulent documents
• Authorized three voluntary pilot programs to enable employers to verify the immigrant status of job applicants and to reduce the number and types of documents needed for identification and employment eligibility
• Required a legally binding affidavit of support from immigrant sponsors, who must have an income of at least 125% of the poverty level (in 2005 the poverty guidelines issued by the Department of Health and Human Services were set at $19,350 for a family of four and $25,870 for a family of six living in the forty-eight contiguous states and District of Columbia)
• Instituted a bar on admissibility for aliens seeking to reenter the United States after having been unlawfully present in the country—a bar of three years for aliens unlawfully present from six months to a year and a bar of ten years for those unlawfully present for more than a year

By 2001 the INS reported approximately 8,400 agents guarding America's borders—400 assigned to the 4,000-mile northern border and 8,000 assigned to the 2,000-mile southern border.

Employment Verification Process

Although the 1986 Immigration Reform and Control Act (IRCA) established a process by which employers could verify an applicant's eligibility to work in the United States, fraudulent documentation and employers who overlooked documentation in favor of "cheap labor" continued to be problems. In May 2003 the Bureau of Citizenship and Immigration Services began accepting electronic filing of two of the most commonly submitted immigration forms, the Application for Employment Authorization (Form I-765) and the application used to renew or replace a "green card" (Form I-90). These two forms represented about 30% of the seven million applications filed annually with immigration authorities. IIRIRA authorized reduction of the number and types of documents used for identification and employment eligibility. As shown in the notes in Table 2.2, the INS took some steps to implement this policy by reducing the number of acceptable documents.

Many Aliens Detained in U.S. Jails

To allow for the construction of more detention facilities, Congress delayed the mandatory detention provisions of the 1996 laws until October 9, 1998. However, the INS continued to rely on county jails, federal prisons, and private lockups to accommodate the increasing number of detained noncitizens. Some aliens without criminal convictions, such as asylum seekers, were held with the nation's toughest criminals. A June 2003 report from Amnesty International charged that 5,385 unaccompanied immigrant children were detained by the INS in 2001 in facilities that also held juvenile offenders (United States of America: Unaccompanied Children in Immigration Detention, New York).

The average daily population of criminal aliens in detention between FY 1994 and FY 2001 grew from approximately 3,300 to 13,210 according to a December 19, 2001, statement made before the House Subcommittee on Immigration and Claims by Joseph Greene, Acting Deputy Executive Associate Commissioner for Field Operations, and Edward McElroy, New York District Director, both of the U.S. Immigration and Naturalization Service. The INS detainees were housed in a variety of facilities, including five that were owned and operated by the INS and others owned by state or local governments that contracted space to the INS. The median length of stay was reported by Greene and McElroy to be fourteen days, but cases of detainment lasting more than three years have been documented.

THE "GREEN CARD"

In January 2005 the U.S. Citizenship and Immigration Web site stated, "A 'green card' gives you official immigration status (Lawful Permanent Residency) in the United States." A lawful permanent resident (LPR) carries that document as proof of legal status in the country. Yet, the card is not green. What we know as a "green card" came in a variety of different colors at different times in history. The card, formally known as the Alien Registration Receipt Card, Form I-151 or I-551, entitles an alien to certain benefits, and those benefits originated at a time when the card was actually green.

The first receipt cards, Form AR-3, resulted from the Alien Registration Act of 1940, a World War II-era national defense measure. The act required all non–U.S. citizens (legal or illegal) to register at post offices. From there, the registration forms were forwarded to the INS. The receipt card was mailed to each alien as proof of their compliance with the law. These receipts were printed on white paper.

When the war ended, alien registration became part of the regular immigration procedure. Aliens registered at ports of entry and the INS issued different types of Alien Registration Receipt Cards based on each alien's admission status. Temporary foreign laborers, for example, received an I-100a card while visitors received an I-94c. Permanent residents received the I-151. Cards were different colors to make it easy to identify the immigration status of each alien. The permanent resident card was green and was necessary to get a job.

The Internal Security Act of 1950 made the I-151 even more valuable. Effective April 17, 1951, any alien holding an AR-3 card (the type issued to all aliens during the war) had to apply to have it replaced with the green I-151 card. Anyone who could not prove their legal admission to the United States (people not listed in INS legal admission records) did not qualify for a green card and could be subject to prosecution for violation of immigration laws.

By 1951 the green card represented security for an alien. It indicated the right to permanently live and work in the United States and instantly communicated that right to law enforcement officials. The Alien Registration Receipt Card, Form I-151, became commonly known to aliens, immigration attorneys, enforcement officers, and employers by its color. The term "green card" designated not only the document but also the official status so desired by many legal nonimmigrants (students, tourists, and temporary workers) and by illegal aliens.

The "green card" was so desirable that counterfeiting became a problem. To combat this fraud the INS issued nineteen different designs of the card between 1940 and 1977. The 1964 version was pale blue and in 1965 the card became dark blue. During the mid-1970s the INS studied methods to produce a counterfeit-proof card. In January 1977 the INS introduced the new style, machine-readable Alien Registration Receipt Card, Form I-551, which has since been issued in a variety of colors including pink and a pink and blue combination. Form I-151 and its successor, Form I-551, have such vital meaning to immigrants that despite changes in form number, design, and color it will probably always be known as a "green card."

BIRTHRIGHT CITIZENSHIP

On October 30, 2000, Congress passed the Child Citizenship Act of 2000 (PL 106-395), granting automatic U.S. citizenship to foreign-born biological and adopted children of American citizens. In a November 19, 2004, press release the U.S. Citizenship and Immigration Services announced that since January 2004 more than 13,000 Certificates of Citizenship had been issued to children from eighty-two countries who had been adopted by U.S. citizens.

USA PATRIOT ACT OF 2001

Following the terrorist attacks of September 11, 2001, it became apparent that some, if not all, of the perpetrators had entered the United States legally and many had overstayed their allotted time with no notice taken by the INS or any other enforcement agency. Since then several laws have been passed or proposed and policy changes have been implemented to address immigration concerns. The first law was the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism, more commonly known as the USA PATRIOT Act (PL 107-56), signed into law in October 2001. With reference to immigration, the act included the following legislation:

• It mandated that the number of personnel at the northern border be tripled, appropriated funds for technology improvements, and gave the INS access to the FBI's criminal databases. The INS was to begin the task of locating hundreds of thousands of foreigners who had been ordered deported and entering their names into the FBI database.
• The Immigration and Nationality Act (INA) was amended in order to clarify that an alien who solicits funds or membership or provides material support to a certified terrorist organization could be detained or removed from the country.
• The attorney general was directed to implement an entry/exit system, with particular focus on biometric information gathered during the visa application process and the development of tamper-resistant documents. The system required that certain nonimmigrants register with the INS and submit fingerprints and photographs upon arrival in the United States; report to the INS in person within thirty days of arrival and annually thereafter; and notify an INS agent of their departure. Those who failed to comply could face criminal prosecution.
• Funds totaling $36.8 million were appropriated in order to implement a foreign-student monitoring system in which all institutions of higher education that enrolled foreign students or exchange visitors were required to participate. The act expanded the list of participating institutions to include air flight schools, language training schools, and vocational schools.
• Provisions were established to ensure that the immigration status of victims of the September 11 terrorist attacks and their families was not adversely affected as a result of the attacks. The family members of some victims were facing deportation.

HOMELAND SECURITY ACT OF 2002

On November 25, 2002, President George W. Bush signed into law the Homeland Security Act of 2002 (PL 107-296), a document totaling nearly five hundred pages that represented the largest restructuring of the government in several decades. The Homeland Security Act created the cabinet-level Department of Homeland Security (DHS). "The department will gather and focus all our efforts to face the challenge of cyberterrorism, and the even worse danger of nuclear, chemical and biological terrorism," President Bush said in announcing the signing of the document ("Remarks by the President at the Signing of H.R. 5005 The Homeland Security Act of 2002," The White House, November 25, 2002). The DHS consolidated the functions of more than twenty federal agencies into one department employing over 170,000 people. One of the affected agencies was the INS.

INS Reorganization

Title IV, Section 402 of the Homeland Security Act transferred the responsibilities of the INS from the Department of Justice to the DHS. With the goal of separating immigration services from immigration law enforcement, on March 1, 2003, the INS became the U.S. Citizenship & Immigration Services (USCIS), responsible for processing visas and petitions for naturalization, asylum, and refugee status. Immigration enforcement became the responsibility of Immigration and Customs Enforcement (called the Bureau of Border Security in the act).

Border Security

Section 402 of the Homeland Security Act outlined the responsibilities of the Under Secretary for Border and Transportation Security. These included:

• Preventing the entry of terrorists and the instruments of terrorism into the United States
• Securing the borders, territorial waters, ports, terminals, waterways, and air, land, and sea transportation systems of the United States
• Administering the immigration and naturalization laws of the United States, including the establishment of rules governing the granting of visas and other forms of permission to enter the United States to individuals who are not citizens or lawful permanent residents
• Administering the customs laws of the United States
• Ensuring the speedy, orderly, and efficient flow of lawful traffic and commerce in carrying out these responsibilities

OTHER POST-9/11 CHANGES

Since September 11, 2001, hundreds of policy changes have been inaugurated by the Department of Justice, the INS, and its successor the USCIS.

In November 2001 the U.S. Department of State issued directives mandating background checks on all male visa applicants between the ages of sixteen and forty-five from twenty-six mostly Muslim countries. The Enhanced Border Security and Visa Entry Reform Act of 2002 (PL 107-173) prohibited the issuing of a nonimmigrant visa to nationals of seven countries (Cuba, Iran, Iraq, Libya, North Korea, Sudan, and Syria) unless it was determined after a lengthy background check that the individuals were not security threats. The list of prohibited countries could change as directed by the attorney general.

Foreign Students Face Increased Visa Restrictions

The IIRIRA had mandated the creation of a database that stored information about international students, but the system had not yet been launched when the September 11 attacks occurred. In March 2002 the INS acknowledged that student visas had been issued to two of the perpetrators of the September 11 attacks, six months after the men died carrying them out. In May 2002 the INS launched the Student and Exchange Visitor Information System (SEVIS) to track foreigners who enter the country on student visas. New rules required that foreign students present a confirmation of acceptance from an American school before they would be allowed to enter the country, and that colleges report enrollment information and date of students' arrival or their failure to arrive.

Reporting Change of Address

The INS took steps to enforce the longstanding but essentially ignored requirement that all noncitizens in the country for more than thirty days must report any change of address within ten days of moving. Failure to report could be grounds for fines, penalties, or deportation.

Police Enforcement of Immigration Laws

The Justice Department ruled that effective August 2002 local police could detain individuals for immigration violations, a right formerly reserved for federal agents. The measure was part of IIRIRA but had not previously been finalized. Florida became the test state, initiating a Memorandum of Understanding with the Justice Department, which authorized specially training local police officers to assist federal agents in locating and detaining wanted aliens.

Indefinite Detention of Illegal Aliens

On April 17, 2003, Attorney General John Ashcroft issued a decision that illegal aliens could be detained indefinitely, whether they were known to have ties to terrorist groups or not (23 I&N Dec. 572 [AG 2003] Interim Decision #3488). The ruling involved the case of a Haitian immigrant who had won the right to be released on bail while he awaited a decision on his plea for asylum.

INTELLIGENCE REFORM AND TERRORISM
PREVENTION ACT OF 2004

On December 17, 2004, President George W. Bush signed into law the Intelligence Reform and Terrorism Prevention Act of 2004 (PL 108-408). This new law set national standards for driver's licenses, Social Security cards, and birth certificates.

The law required the Secretary of Transportation to issue within eighteen months regulations governing any driver's license or identity cards to be accepted for any official purpose by a federal agency. The documents were required to include: full legal name, date of birth, gender, license or ID card number, digital photograph, address, and signature of the individual. In addition, cards were required to contain physical security features designed to prevent tampering, counterfeiting, or duplicating for fraudulent purposes. They also had to conform to specified requirements for a common machine-readable technology. States would be required to confiscate a driver's license or ID card if any of the security features were compromised. The regulations would include standards for documentation required by the applicant for a license or ID card and procedures for verifying the documents. States retained the right to determine what categories of individuals (for example, legal or illegal immigrants) were eligible for a license.

The law required that within one year the Commissioner of Social Security would restrict issuance of replacement Social Security cards for any individual to three in one year or ten in a lifetime; create minimum standards for verification of documents to be submitted to obtain initial or replacement Social Security cards; and add death and fraud indicators to verification systems used by employers, state agencies, and other entities. The commissioner was also required to improve controls for issuing Social Security numbers (SSNs) to newborns to prevent multiple numbers being issued to one child and to avoid fraud. The law also created an interagency task force to develop methods to prevent counterfeiting, tampering, theft, and alteration of Social Security cards. Finally, it amended the Social Security Act to prevent states from displaying SSNs on driver's licenses, motor vehicle registrations, or any other document issued to an individual for identification.

The law charged the Secretary of Health and Human Services with establishing minimum standards for birth certificates for use by federal agencies for any official purpose. This included requiring state or local issuing officials to certify the birth certificate. States would be required to use safety paper or other methods to prevent tampering, counterfeiting, or other birth certificate fraud. Also, procedures would be established for verifying proof of identity in issuing birth certificates, with additional security measures for issuing a birth certificate to someone other than the applicant (parents, adoptive parents, etc.).

LEGISLATION PENDING IN THE 109th
CONGRESS

In a January 11, 2005, interview with Joseph Curl of the Washington Times, President George W. Bush said he would spend political capital to push his proposal to grant temporary work visas to foreign workers as long as U.S. workers would not or did not want to fill the job ("Bush Vows Push on Immigration," January 12, 2005). Estimating the number of illegal aliens in the country at eight million, he said, "We've got people living in the shadows of our society, and we've got a border patrol that's overstressed because we've got people streaming across. The system has broken down. And I think that by legalizing workers, we take a lot of pressure off our borders."

The new Congress also appeared to place a priority on immigration reform. The first session of the 109th Congress convened on January 4, 2005. Seventy-six immigration-related bills were introduced within the first thirty days—forty-five in the House of Representatives and thirty-one in the Senate. The fastest-moving bill was the REAL ID Act of 2005 (H.R. 418). Introduced January 26, 2005, in the House of Representatives with 140 cosponsors, it passed by a 261-161 vote February 10, 2005, and was forwarded to the Senate February 14, 2005. In addition to focusing on security standards for state-issued driver's licenses, the bill included provisions for preventing terrorists from abusing U.S. asylum laws, unifying terrorism-related grounds for inadmissibility and removal, and ensuring expeditious construction of the San Diego border fence. Specific to the driver's license, the REAL ID Act required the expiration date of a license or ID card issued to a temporary foreign visitor to match the expiration date of the visa. If the visa had no expiration date, the license would expire in one year. It also strengthened requirements for proof of identification and lawful presence in the United States when applying for a driver's license.

REPERCUSSIONS OF POST-SEPTEMBER 11 POLICIES

The U.S. government was aggressive in its pursuit of terrorism suspects. The Justice Department reported that in the year following the September 11 attacks, approximately 1,200 aliens were apprehended (Allison Parker and Jamie Fellner, Above the Law: Executive Power after September 11 in the United States, Washington, DC: Human Rights Watch, January 2004). More than 700 were confined on immigration-related charges, and Attorney General John Ashcroft ordered officials to keep their names secret. In certain cases, their mail and communications with their attorneys were monitored.

Interested parties charged that the government's policies were unconstitutional or in violation of civil liberties or laws regarding public disclosure. Numerous lawsuits were filed seeking information about the September 11 detainees and protesting secret deportation hearings.

Many also inquired into the status of the nearly 600 people from Afghanistan, Pakistan, and other nations who were captured by U.S. soldiers in the October 2001 retaliatory attack on Afghanistan. Some of these individuals were taken to the U.S. naval base in Guantánamo Bay, Cuba. Reuters News Service ("Red Cross Head Discusses Guantanamo Inmates with Bush," February 15, 2005) reported that in a February 14, 2005, meeting with President Bush and Secretary of State Condoleezza Rice, the president of the International Committee of the Red Cross, Jakob Kellenberger, raised concerns about detainees at Guantánamo Bay and elsewhere.

In a January 2005 press release, Wendy Patten, U.S. Advocacy Director for Human Rights Watch, said, "Guantánamo has become the Bermuda Triangle of human rights. Basic rights vanish there. By flouting international law in its treatment of detainees, the Bush administration has drawn worldwide criticism and undermined support for U.S. counterterrorism efforts" ("Guantanamo: Three Years of Lawlessness," Human Rights News, Washington, DC: Human Rights Watch, January 11, 2005). The Human Rights Watch statement counted some 550 people being held as "enemy combatants" and noted that only four faced charges at that time. Also in a January 2005 statement ("Guantanamo Bay—A Human Rights Scandal," http://www.amnestyusa.org/waronterror/guantanamo/), Amnesty International described the condition of detainees from some thirty-five different nations who were "without access to any court, legal counsel or family visits. Denied their rights under international law and held in conditions which may amount to cruel, inhuman or degrading treatment, the detainees face severe psychological distress."

The Courts Rule

FREEDOM OF INFORMATION.

On August 2, 2002, U.S. District Court Judge Gladys Kessler ordered the Justice Department to release the names of the aliens being detained on immigration charges and their attorneys. Her ruling stated: "Secret arrests are a concept odious to a democratic society and profoundly antithetical to the bedrock values that characterize a free and open one such as ours."

On June 17, 2003, the U.S. Court of Appeals for the District of Columbia Circuit issued its decision on appeal (Center for National Security Studies, et al., v. U.S. Department of Justice [No. 02-5254 & No. 02-300]). The court found that the Justice Department was justified in withholding information about the detainees, whose status as of June 2002 was described in the court's opinion:

• Of the more than 700 detainees held on immigration-related charges, 74 remained in custody. Many had been deported.
• Of the 134 individuals detained on federal criminal charges, 99 were found guilty either through pleas or trials.
• An undisclosed number of persons believed to have information relating to the events of September 11 were detained after a judge issued a material witness warrant to secure their testimony before a grand jury. The government is prohibited by court orders from releasing any information about the proceedings.

SECRET DEPORTATION HEARINGS.

On September 21, 2001, Chief Immigration Judge Michael Creppy issued an order stating that typically open deportation hearings should be closed in any case deemed of "special interest" in the investigation of the terrorist attacks. A lawsuit was filed by the American Civil Liberties Union (ACLU) on behalf of Representative John Conyers (a Democrat from Michigan) and Michigan newspapers challenging Judge Creppy's order after the public and press were denied access to the deportation hearing of a Muslim religious leader who had overstayed a tourist visa.

On August 26, 2002, the U.S. Court of Appeals for the Sixth Circuit ruled in Detroit News, Inc., et al., v. Ashcroft, et al. that the Bush administration acted unlawfully in holding hundreds of deportation hearings in secret on the sole grounds that those involved were terrorism suspects. "Democracies die behind closed doors," Judge Damon Keith wrote. His ruling characterized the September 11 attacks as "egregious, deplorable, and despicable" events that led to vigorous prosecution of immigration laws, but he described governmental secrecy as "profoundly undemocratic" (2002 FED App. 0291P [6th Cir.] No. 02-1437).

In a separate suit, the ACLU represented the media seeking information on "special interest" detainees taken into custody in New Jersey. A lower court judge in Newark ordered the government to open all such hearings to the public unless it could offer case-by-case proof of the need for secrecy. The Third U.S. Circuit Court of Appeals reversed the lower court ruling (North Jersey Media Group, Inc.; New Jersey Law Journal v. John Ashcroft, Attorney General of the United States; Michael Creppy, Hon., No. 02-2524). The case was appealed to the U.S. Supreme Court, which declined to review it.

The decisions of the courts in these two cases left the government in a position where its power to hold secret hearings was restricted in the four states belonging to the Sixth Circuit (Tennessee, Michigan, Ohio, and Kentucky) but not in the remaining forty-six states.

SUSPECTED TERRORISTS HELD IN CUBA.

In March 2003 a federal appeals court ruled that 650 suspected members of the al-Qaeda terrorist network and the former Taliban regime in Afghanistan who were being held at a U.S. naval base in Guantánamo Bay had no legal rights in the United States and could not ask courts to review their detentions (Al Odah v. United States, No. 02-5251). The case, brought by relatives of some of the detainees, contested the legality and conditions of their confinement. Earlier, a Washington Post article, "U.S. Decries Abuse but Defends Interrogations" (Dana Priest and Barton Gellman, December 26, 2002), described alleged inhumane treatment of the individuals being held in Cuba.

Treatment of September 11 Detainees

A June 2, 2003, report from the Justice Department's inspector general, Glenn A. Fine, found "significant problems" in the treatment of some of the September 11 detainees, including physical and verbal abuse, long delays in charging detainees, a pattern of confining detainees in cells for twenty-three hours a day, the use of handcuffs and leg irons, and limitations on the ability of detainees to communicate with legal counsel (The September 11 Detainees: A Review of the Treatment of Aliens Held on Immigration Charges in Connection with the Investigation of the September 11 Attacks, Washington, DC: U.S. Department of Justice). During his June 25, 2003, testimony on the Justice Department's report before the Senate Judiciary Committee (http://www.usdoj.gov/oig/testimony/0306.htm), Fine acknowledged the tireless and dedicated work on the part of Justice Department employees under extraordinary circumstances and further stated that "the chaotic situation and uncertainties surrounding the detainees' role in the September 11 attacks, and the potential of additional attacks, explain many of the problems we found in our review, but they do not explain or justify all of them."

On the day the inspector general's report was released, Justice Department spokeswoman Barbara Comstock issued a statement asserting that "[t]he Justice Department believes that the Inspector General report is fully consistent with what courts have ruled over and over—that our actions are fully within the law and necessary to protect the American people. Our policy is to use all legal tools available to protect innocent Americans from terrorist attacks. We make no apologies for finding every legal way possible to protect the American public from further terrorist attacks" ("Statement of Barbara Comstock, Director of Public Affairs, Regarding the IG's Report on 9/11 Detainees," Washington, DC: U.S. Department of Justice, June 2, 2003).

Volunteers?

Between September 11 and November 9, 2001, the INS compiled a list of 7,602 names of aliens with characteristics similar to those of the hijackers and requested that the individuals on the list make themselves available for voluntary interviews. While many individuals expressed understanding regarding the need for such interviews, others expressed apprehension. The U.S. General Accounting Office (GAO) noted in Homeland Security: Justice Department's Project to Interview Aliens after September 11, 2001 (GAO-03-459, Washington, DC, April 11, 2003) that "attorneys for interviewees and immigration advocates…expressed the view that interviewed aliens did not perceive the interviews to be truly voluntary … they worried about repercussions, such as future INS denials for visa extensions or permanent residence, if they refused to be interviewed."

Civil Rights Violations

The September 11, 2001, terrorist attacks caused Americans to take greater notice of foreign-born residents. People who appeared to be from the Middle East were suddenly suspect. Those who appeared "different" in dress or behavior became the subject of particular attention, suspicion, and sometimes even violence. Communities, and particularly law enforcement agencies, across the nation were faced with the challenges of fair treatment and even protection of foreign-born residents.

Even the Department of Justice, the enforcement agency for such civil rights violations, was not immune to complaints. Philip Shenon of the New York Times ("Report on U.S. Antiterrorism Law Alleges Violations of Civil Rights," July 21, 2003) noted that in a report presented to Congress in July 2003, the Justice Department's inspector general advised that in the six-month period that ended on June 15, 2003, the inspector general's office had received thirty-four credible complaints of violations of the civil rights and liberties of individuals held in connection with terrorism investigations. According to Shenon, Muslim and Arab immigrants held in detention had allegedly been beaten; the accused perpetrators were Justice Department employees.

The Chicago Police Department recognized the need to understand and more effectively communicate with the diverse ethnic and religious groups that populated the city. According to Stephen Kinzer of the New York Times ("Chicago Police Videos Offer Insights into Various Faiths," January 23, 2005), the department produced a series of short videotapes that focused on religious groups with a significant presence in Chicago—Sikhs, Muslims, Jews, Buddhists, and Hindus. Many members of these faiths might appear to be from the Middle East and/or might wear particular dress that made them look "different." The tapes provided a look into homes and houses of worship and interviews with religious and community leaders. A police officer narrator gave tips on things to do or to avoid when interacting with people of each faith. The intent was to help police officers respect people's cultural heritage while protecting the community and the city.

Viewing the tapes was required training for all Chicago police officers and it had a noticeable effect. Kinzer reported that one Sikh leader said the training helped the police understand that the display of swords in homes and as part of men's clothing was a religious tradition rather than intended for criminal activity. A leader of Chicago's Islamic community said the training "changed our community's relationship with the police … people are beginning to see the Chicago Police Department as an ally rather than an opposing force."

For information on national origin discrimination, see Appendix I.