Immigrants Felt Brunt of U.S. Reaction

In late October 2001, U.S. Attorney General John Ashcroft alluded to Robert Kennedy’s vow to arrest mobsters for “spitting on the sidewalk” if that’s what it took to nail them. “It has been and will be the policy of this Department of Justice to use the same aggressive arrest and detention tactics in the war on terror,” Ashcroft declared. “Let the terrorists among us be warned: If you overstay your visa—even by one day—we will arrest you. If you violate a local law, you will be put in jail and kept in custody as long as possible. We will use every available statute. We will seek every prosecutorial advantage.”

The FBI was already using all the powers at its disposal—and undocumented immigrants were feeling their brunt. By the afternoon of September 11, the bureau had launched its PENTTBOM (for “Pentagon/Twin Towers ‘Bombing’ investigation”) and begun investigating hundreds of thousands of tips from the public. When those leads led to undocumented immigrants, the BI brought them in and labeled them “of interest to the September 11 investigation.” Over the next several months, at least 762 people were detained. Nearly half were from Pakistan or Egypt, and 491 were from New York, with another 70 arrested in New Jersey, according to a 2003 report by the Justice Department’s inspector general.

There’s nothing surprising about the FBI aggressively running down leads in the biggest mass murder in American history. The problem, the inspector general found, was that “the FBI interpreted and applied the term ‘of interest to the September 11 investigation’ quite broadly.” Some people were detained despite “little or no concrete information” linking them to the attacks. A supervisor in the FBI’s New York field office said that if “agents searching for a particular person on a PENTTBOM lead arrived at a location and found a dozen individuals out of immigration status, each of them were considered to be arrested in connection with the PENTTBOM investigation…because the FBI wanted to be certain that no terrorist was inadvertently set free.”

Many Americans would like nothing better than for the FBI to immigrants who, whether or not they had anything to do with September 11, entered the country illegally or overstayed their visa. What characterized the PENTTBOM detentions, though, was that all the detainees were treated as if they did have something to do with September 11—a broad-brush approach that had serious ramifications.

For one thing, the Justice Department insisted that none of the detainees be released or deported until the FBI cleared them of any connection to terrorism. At the same time, the Immigration and Naturalization Service decided to deny bond to any of the detainees netted by PENTTBOM, even when the FBI could provide no specific evidence why a particular person posed a threat. So rather than the government having to prove that they were terrorists, immigrants had to wait in detention for the FBI to say they weren’t.

In the New York area, higher-interest detainees were held in the Metropolitan Detention Center in Brooklyn, which is run by the federal Bureau of Prisons. BOP officials decided to hold all 84 of these detainees in maximum security, without the normal review of whether each individual posed a security risk. That meant the detainees were limited to one social telephone call a month and one legal call a week—both made with a prison official standing watch outside the cell. Whenever detainees left their cells, they were escorted by four officers. At a minimum, detainees wore handcuffs and leg irons outside the cell.

When visiting with lawyers or family members—and those visits were noncontact—a detainee was also secured with a four-foot heavy chain running from the handcuffs to the leg irons. Sometimes the treatment went beyond the rules. Some detainees complained that they were denied toothbrushes, towels and toilet paper for weeks. Guards were reported to have said things like, “You’re going to die here,” “You’re never going to get out of here” and “You will be here for 20 to 25 years like the Cuban people.” Detainees and one guard described bodily mistreatment, including detainees being slammed against walls. “We believe the evidence indicates a pattern of physical and verbal abuse against some September 11 detainees held at the MDC by some correctional officers,” the inspector general found.

Some detainees lived under those conditions for months. One man arrested in November 2001 was deemed in May 2002 to be of “no investigative interest.” But word didn’t reach MDC officials until mid-June. Not one of the detainees was prosecuted for terrorism. Most were deported. Some have sued; the Justice Department settled one man’s claims for $300,000.

As the government was detaining hundreds of immigrants, it was preparing to talk to thousands more. During the fall of 2001, the FBI used government databases to generate a list of 7,600 people whose profiles shared similarities (age, gender, nationality, et cetera) with the hijackers. Then the FBI called these people in for so-called “voluntary” interviews. By March 2003, some 3,200 interviews had taken place, according to the Government Accountability Office; 114 happened in the New York metro area. It’s unclear if more interviews occurred later.

The FBI’s interview script involved questions like “Does the person have any knowledge or involvement in advocating, planning, supporting or committing terrorist activities? Yes or no. If yes, please explain.” While the program was dubbed “voluntary,” the GAO found that some subjects didn’t feel they had much of a choice: “The [immigrants] feared there could be repercussions to them for declining to participate. for example, interviewees were reportedly afraid that future requests for visa extensions or permanent residency would be denied if they did not agree to be interviewed.”

Fewer than 20 people were arrested as a result of the interviews, most for immigration violations. Three were busted on criminal charges. “None of them appeared to have any connection to terrorism,” the GAO found.

By mid-2002, the government was ramping up a third regime for questioning foreign nationals: special registration. Explaining that “certain nonimmigrant aliens require closer monitoring when national security or law enforcement interests are raised,” the government began fingerprinting, photographing and questioning under oath people from certain countries as they entered the United States. Late in 2002, the INS began requiring people already living in the United States—some for decades—to report to INS offices for interviews. The policy applied to non-permanent residents who were males age 16 or older from 25 countries. Twenty-four of the countries were predominantly Muslim (North Koreans also had to sign up).

As the program got under way in 2003, long lines stretched around the front of 26 federal Plaza, where the New York INS office was located. “I think people were keen to go in. They thought it was their national duty,” says Muzaffar Chishti, director of the Migration Policy Institute’s office at NYU. Not all were rewarded for their trouble. The program didn’t apply to people who’d entered the country illegally. But it did catch those who’d overstayed their visa: Of the 83,000 who registered nationwide, about 13,000 were deported (3,000 from New York, according to the advocacy group families for freedom). Again, none were charged with terrorism—a fact the Justice Department shrugged off. “That an alien was deported rather than prosecuted does not mean that the alien had no knowledge of or connection to terrorism,” said then-DOJ spokeswoman Barbara Comstock in 2003. Maybe, she argued, the prosecutor had just decided that the easiest way to protect America was to simply get rid of a dangerous person. A recent study by Syracuse University’s Transactional Records Access Clearinghouse, however, found that of the more than 800,000 people brought before immigration courts from fiscal 2004 through 2006, those who faced charges related to terrorism or national security numbered 126—or 0.0155 percent.

Special Registration has since been replaced by US-VISIT, which applies to all foreign nationals and only operates at ports of entry. Immigration advocates welcomed that change, although it didn’t solve all problems. “There’s been a lot of people who have left the country and have not been allowed back in,” says Adem Carroll, a Muslim convert and chairman of the Bronx-based Muslim Consultative Network. “There’s a student I know in his third year at Lehigh. He’s trying to obtain a lawyer because he wants to finish his schooling. There’ve been a lot of businesspeople who have left for a business trip and then are not allowed back in.”

As the controversy over special registration faded, so did public scrutiny of immigration policy. “There’s a lot happening now, but it’s dangerously under the radar,” says organizer Monami Maulik, the founder of DRUM (Desis Rising Up and Moving), a South Asian advocacy group. One phenomenon she sees involves a construction boss calling immigration authorities when his workers began to organize for back wages, a tactic that Maulik says scares not only that work crew but, as word of it spreads through the grapevine, silences other undocumented laborers as well. But what’s characterized immigration enforcement most since special registration, advocates say, is the surge in home raids. Immigration authorities used to avoid going to people’s homes, confining their enforcement actions to the street and businesses. That changed when the Department of Homeland Security took over INS in 2003 and gained control of the National fugitive Operations Program, which hunts down undocumented immigrants who were ordered to be deported but never left. DHS now has 52 fugitive apprehension teams (FATs), and each is expected to nab 1,000 fugitives a year.

Some of their targets are “criminal aliens” who committed a crime while here; during May, FATs in the New York/New Jersey metro area hauled in 283 immigrants with criminal records. Others aren’t criminals. They’re fugitives because they were never deported, perhaps because they ignored their deportation order, or perhaps because they didn’t know about it; some deportation hearings are conducted in absentia. Still others whom the FATs arrest aren’t fugitives at all—they’re undocumented immigrants with violations, but they don’t have an outstanding deportation warrant. They just happen to be there when the agents come looking for someone who does. The term of art for these people is “collateral arrests.”

During their first three years of operation, FATs nationwide brought in 37,000 people who were fugitives and 12,000 people who weren’t. In one February raid in upstate New York, 52 people were detained, but only 21 were actually fugitives. In October of last year, during a joint NYPD-federal raid of businesses selling fake IDs in Jackson Heights, Immigration and Customs Enforcement (ICE, the successor to INS) arrested more than 100 immigrants, according to DRUM. A witness claimed that “men in FBI and ICE jackets showed us photos of the people they were looking for and asked us if we knew them. When people answered that they didn’t, they were asked to show identification. Those that didn’t have any were taken in.”

The Department of Homeland Security did not respond to requests to discuss those reports. DHS statistics, however, depict an explosion in deportation cases. In 1986, about 24,000 people were deported from the United States. In 2006, more than 270,000 were removed. The sheer volume begs questions about whether due process is being maintained, say immigration advocates. “Try to imagine the kind of enforcement apparatus necessary for the government to carry out such a massive deportation,” says New York Immigration Coalition executive director Chung-Wha Hong. For immigrants, she says, “It’s not a symbolic thing to say we live in a police state.”

FATs are a top worry of immigration lawyers, who are hoping to negotiate with ICE to develop a protocol for home raids that will set some guidelines and provide grounds for legal challenges to improper detentions.

For now, those picked up in home raids or other ICE actions in New York City are often detained in the Elizabeth Detention Center, a 300-bed facility in Union County, New Jersey, run by the private Corrections Corp. of America. For ICE’s detention centers both public and private, business is booming: Nationwide, the number of federally-funded detention beds nearly doubled to more than 32,000 between 2005 and 2007. But even as the feds grow more ambitious about detaining “illegals,” legal immigrants have encountered long delays and more denials in obtaining the documents they need to stay on the right side of the law. From 1993 to 2003, the denial rate for green cards soared from 4 percent to 20 percent nationally; in New York, it was 47 percent in 2003. New York’s immigration office also stands out for a low availability of appointments for people to speak with immigration officers, a yearlong wait for marriage investigations, and being the target of more complaints than any other field office. Recent numbers show improvement. But even visitors have a hard time getting in these days. The numbers of visas issued dropped 25 percent between 1997 and 2006.

New York’s mayor, meanwhile, argues that U.S. immigration policies are shooting us in the foot. “Xenophobia here and lack of appreciation and respect for other countries is preventing us from getting the help we need,” Bloomberg said at a May conference on counterterrorism at NYU. It wasn’t the first time the mayor has distanced himself from anti-immigrant sentiment. Anti-immigration groups detest what they see as Bloomberg’s moves to shore up New York’s status as a “sanctuary city.” They particularly dislike his two executive orders on immigration status.

Many immigration advocates didn’t love the first one, either. In May 2003, Bloomberg issued Executive Order 34 to comply with a federal court decision that found the city went too far when it barred city workers from sharing immigration information with federal officers. E.O. 34 shifted from a prohibition on sharing to a rule that municipal employees aren’t supposed to ask about immigration status when dealing with the public. But E.O. 34 didn’t apply to the police, prompting complaints. So in September 2003, Bloomberg issued Executive Order 41, which said that police officers “shall not inquire about a person’s immigration status unless investigating illegal activity other than mere status as an undocumented alien.” The order also instructed officers not to ask crime victims or witnesses about their status.

There have been anecdotes about cops not following the order. Maulik thinks it’s more than an occasional problem. “E.O. 41 is violated every day,” she claims. In 2006, DRUM and the Urban Justice Center surveyed 600 South Asian youth and found that nearly half had been asked their immigration status by school officials or police officers. Immigrant advocates, however, generally say the Bloomberg administration has steered clear of abetting ICE’s aggressive enforcement efforts—efforts that have had a profound impact on some of the neighborhoods where New York’s 600,000 Muslims live. Advocates say the untold story of post-September 11 immigration enforcement is the exodus it spurred of Muslim Arab and South Asian people. In Midwood, where Mohammad Razvi runs the Council of Peoples Organizations, he says that 30 of the 150 businesses in the area closed because the owners or their customers fled. “Many just packed up and left,” Razvi says. “The demographics have changed not because people are doing better and moving on. The demographics have changed because people left in fear.”

That change is difficult for an outsider to discern. In fact, many details of post-September 11 immigration enforcement are murky, largely because of the unprecedented secrecy in which federal agencies have operated since the immediate aftermath of the World Trade Center attacks. On September 12, 2001, then-Bureau of Prisons Regional Director David Rardin, who oversaw the Metropolitan Detention Center in Brooklyn, imposed a communications blackout on the September 11 detainees. As a result, the inspector general found, “MDC staff did not allow detainees to receive telephone calls, visitors, or mail, or to place telephone calls or send mail until the Bureau of Prisons received information concerning the security risks presented by the detainees.” This blackout lasted several weeks in some cases and “severely limited the detainees’ ability to obtain, and communicate with, legal counsel,” the inspector general found. One detainee profiled by the inspector general waited 19 days after his arrest to be allowed to call a lawyer.

Once detainees made it to a hearing, they faced the possibility of secret evidence being used to justify their detention or deportation. In fact, the hearing itself might have been labeled a state secret: In late September 2001, the nation’s chief immigration judge—who is not an independent jurist but a DOJ employee—announced a policy under which the attorney general could impose blanket secrecy on any case that the DOJ labeled “special interest.” Those cases were closed to family members, the press and the public and were not even listed on court dockets. The rationale was that the government needed to keep its evidence and even the names of the detainees secret from terrorists, who could alter their plots if they knew which conspirators had been locked up.

The North Jersey Media Group, a newspaper publisher, and the New Jersey Law Journal sued to overturn the policy, claiming it was unconstitutional. So did the Detroit Free Press. Both suits won at trial. When the Detroit case survived a government appeal in 2002, the opinion by Circuit Judge Damon J. Keith became a rallying cry for “war on terror” skeptics. “Democracies die behind closed doors,” he wrote. “When government begins closing doors, it selectively controls information rightfully belonging to the people. Selective information is misinformation.”

The New Jersey case had a dif ferent ending. A three-judge panel of the Third Circuit split over the issue in a 2002 ruling. One judge agreed that some immigration hearings, or maybe even all of them, needed to be closed for national security reasons but thought that the attorney general should have to make a case-by-case argument for secrecy. His two colleagues overruled him, siding with the DOJ to conceal all hearings.

“We are keenly aware of the dangers presented by deference to the executive branch when Constitutional liberties are at stake, especially in times of national crisis, when those liberties are likely in greatest jeopardy,” they wrote. “On balance, however, we are unable to conclude that openness plays a positive role in special interest deportation hearings at a time when our nation is faced with threats of such profound and unknown dimension.”

The Supreme Court declined to take the case. The government closed 782 deportation cases before ending the practice in 2003, according to the DOJ.