IMMIGRATION LAWYERS

TRYING TIMES FOR IMMIGRANTS AND THE CONSTITUTION

    Despite the abundant economic and social science data that consistently show the important positive effects of immigration on our economy and culture; despite the anecdotal evidence in the form of productive, upstanding, and patriotic friends, family, and coworkers, Americans have allowed themselves to slip into a dark period of anti-immigration politics and policies. Led by the anti-immigrant forces of FAIR and their allies in and out of government, and enjoying unlimited political cover afforded by September 11 and the subsequent "war on terrorism", the current administration finally has immigrants where they want them: in the crosshairs.

    President Bush and Secretaries Ashcroft and Rumsfeld have determined that any American Citizen labeled an "enemy combatant" in this current "war on terrorism" has no right to seek review of his/her detention in federal court under the ancient doctrine of habeas corpus, used to challenge executive detention for hundreds of years. The United States Citizen so held has no rights under the Constitution and will be tried by military tribunal, closed to the public. Mr. Ashcroft is now bugging attorney/client conversations when he deems it appropriate to do so, and has arrested a defense attorney in New York for zealously defending a man accused of terrorist acts.

    The Government has vigorously, and almost successfully, opposed the Sixth Amendment right to counsel in the case of a criminal defendant in the Southern District of Virginia held on charges of terrorism; although a brave federal district court judge took the Government to task for its position, the United States Court of Appeals for the Fourth Circuit ordered further hearings on the matter, not satisfied with the Judge's factfinding in the original hearing. Although the United States Court of Appeals for the Third Circuit stated that "democracy dies behind closed doors" in its rejection of secret immigration hearings, the Sixth Circuit Court of Appeals held the opposite, allowing secret removal hearings to go forward in its jurisdiction. It remains to be seen whether the Supreme Court will decide this issue.

    In Atlanta, the Immigration Service charged a legal permanent resident of the United States with removal (deportation) because he failed to file a change of address form; the Immigration Judge thankfully exercised the little discretion left to him and denied INS' aggressive tactics. INS has decided to enforce this old provision, after 50 years of failing to do so.

    Attorney General Ashcroft rounded up over 5000 men of Middle Eastern descent shortly after the attack of September 11. The Attorney General roundly rejected any attempts by the media to shed light on the names of those held, where they were held, and their fates. To date, no public accounting has been made to anyone, anywhere, about these people, some of whom may have been long-time residents of the United States, some may have even been citizens of the United States. But we will never know; they are the United States Government's first "disappeareds", a human rights violation once reserved for dictatorial Argentina, Turkey, or Syria. 

    Mr. Ashcroft also has attempted to enlist state and local law enforcement authorities to serve as an extension of the INS Border Patrol, arresting individuals who may or may not be in this country legally. An Ohio Court recently rejected the State Police practice of confiscating "green cards" belonging to legal permanent residents for days and sometimes weeks, after traffic stops on Ohio highways. This is Mr. Ashcroft's policy of local law enforcement acting as Border Patrol, gone awry. Fortunately, some jurisdictions, though not many, objected to Mr. Ashcroft's dubious policies, and declined to participate, citing important law enforcement objectives such as cultivating strong ties with immigrant communities to enhance community policing.

    The Department of Homeland Security abolishes the Immigration and Naturalization Service and replaces it with a Directorate of Border and Transportation Security within Homeland Security. The Directorate will include a Bureau of Border Security and a Bureau of Citizenship and Immigration Services; Consular functions, after more than 200 years in the Department of State, will now be the province of the Department of Homeland Security. The American Immigration Lawyers Association (AILA) has over fifty years of liaison activity at every level of INS to track and cure policy issues as well as individual cases that get lost or botched in the current byzantine bureaucracy; there is no telling whether these vital liaison functions will remain with the new agency, or whether Secretary Ridge will simply consider these important contacts with the legal community superfluous in the name of "national security".

    Assuming there is a happy ending to the current "war on terrorism", Americans will have consented in the name of security to a shearing of their constitutional rights and protections the likes of which they have never known before. Of course, if there is no end to this "war on terrorism" then, as Ben Franklin predicted, we will have neither liberty nor security. 

For samples of Marks & Katz's wins for justice, click here. (Each case is different (e.g., with a different set of facts, law, and adjudicators), and this listing is by no means meant to indicate the results Marks & Katz, LLC, will obtain for future clients. Our goal, of course, is for winning advocacy at every turn).

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