By Muzaffar Chishti and Claire Bergeron
Migration Policy Institute
September 8, 2011
In the wake of the September 11, 2001 terrorist attacks, the US government implemented a series of critical — and sometimes controversial — immigration policy measures to respond to future threats of terrorism. As we commemorate the tenth anniversary of the 9/11 attacks, it is a timely moment to reflect on the current status and the lasting legacy of those policy measures.
Since all 19 terrorists who attacked the United States that September morning were foreign nationals who had entered the country through legal travel channels, detecting and preventing terrorist activity became the paramount objective of post-9/11 US immigration policy and programs.
In the decade since 9/11, immigration policy has been viewed principally through the lens of national security, a development that has given rise to major new border security and law enforcement initiatives, heightened visa controls and screening of international travelers and would-be immigrants, the collection and storage of information in vast new interoperable databases used by law enforcement and intelligence agencies, and the use of state and local law enforcement as force multipliers in immigration enforcement. Moreover, any prospects of bipartisan support for comprehensive immigration reform, which had been gaining momentum in Congress prior to the attacks, have been dashed.
And because the hijackers were all Muslims, acute scrutiny in the immediate aftermath of the attacks was focused on Muslims or those who were perceived to be Muslims, with broader use of nationality-based screening and enforcement programs.
Equally interesting, though, is what did not occur after the terrorist attacks. Given the experiences in comparable chapters of US history (with special programs directed at German-Americans in World War I, Japanese-Americans in World War II, and "communist radicals" after that war), a much stronger backlash against immigrants and Muslims was predicted after 9/11. The most dire of the predictions, though, did not materialize. There was no round-up or internment of Muslim-Americans; the targets of government actions were noncitizens, principally unauthorized immigrants. There also was no legislative effort in Congress to place a moratorium on legal immigration, or on immigration from certain countries.
Policies Focused on Those with Perceived Links to al Qaeda
However, the government's immigration measures immediately after 9/11 were directed at those perceived to be linked to or sympathetic towards al Qaeda. That resulted in disproportionate impact on Muslims, Arabs, and South Asians. Described by policymakers as imperative to assure national security and protect the country from further attack, the government's actions were seen by civil libertarians as excessively harsh. And to many legal scholars they undermined core constitutional principles. Among the programs:
- Secret Detentions and Proceedings: The government arrested more than 1,200 people in the months after 9/11, but refused to release their names or their place of detention. Some were barred from contacting their lawyers. The immigration hearings in at least 611 cases (classified as "special interest" cases) were closed to the public and the press. Secret evidence, withheld from the defendants and their attorneys, was introduced in some cases.
- Detention Practices: Many detainees taken into custody in connection with investigations subsequent to the attacks were arrested without warrant, held without charge for long periods, detained despite an immigration judge's decision to release them on bond, and detained even after a final determination of their cases.
- Country-Specific Actions: Various post-9/11 immigration programs explicitly targeted country -specific groups. Under the voluntary interview program, FBI interviewed more than 8,000 nonimmigrants from specified countries with a suspected al Qaeda presence. Those interviews were extended to over 10,000 Iraqis and Iraqi-Americans. Under NSEERS (or the National Security Entry-Exit Registration System special registration program), adult males from 25 predominately Muslim countries were required to register and be fingerprinted and photographed at ports of entry or present themselves at immigration offices inside the country for fingerprints and photographs. More than 80,000 individuals were interviewed under the program, and over 13,000 were placed in removal proceedings. Similarly, the government designated as "priority absconders" thousands of men from countries with a known al Qaeda presence who had violated their final orders of removal, and placed their names in an FBI database used by local and state law enforcement officials. Almost all those affected by these country-specific programs were nationals of Muslim-majority countries.
Most of These Policies Have Been Discontinued But Legal Challenges Survive
Most of the immigration actions specifically directed at Muslim immigrants have been discontinued. The voluntary interview program ended in December 2002. The "absconder initiative" now exists as part of US Immigration and Customs Enforcement's National Fugitive Operations Program, which is not nationality-specific. The portion of NSEERS that required those inside the country to register was ended in December 2003, and the program itself abolished in April 2011.
Similarly, no post-9/11 type closed immigration proceedings have been held since the end of 2002, and the US Department of Justice has limited to 90 days the period for which someone can be detained when the government challenges an immigration judge's decision to grant bond.
But while the government has abandoned or modified some of the immediate post-9/11 actions, they have generally withstood legal challenge. The courts have granted extraordinary deference to the executive branch when it invokes national security as grounds for its actions with long-lasting implications for the legal landscape affecting the rights of immigrants.
The US Court of Appeals for the DC Circuit in 2003 ruled that government's decision not to release the names of detainees was within an exception of the Freedom of Information (FOIA) Act. The US Court of Appeals for the Second Circuit held that prolonged detention in immigration cases was not unconstitutional; other federal courts upheld the NSEERS program. And while the US Court of Appeals for the Sixth Circuit held that it was unconstitutional to close immigration hearings, the US Court of Appeals for the Third Circuit reached the opposite conclusion and the US Supreme Court declined to intervene to resolve the appellate courts' conflicting rulings.
Measures Not Focused on al Qaeda, But that Cut a Far Wider Swath
Since 9/11, the United States has gradually moved away from nationality-based policies toward a redesigned immigration enforcement machinery that is conceived, driven, and funded with the central goal of advancing national security. It has resulted in the creation of a new Cabinet agency, the Department of Homeland Security; the creation or expansion of vast databases for the collection and analysis of information; new life for long-authorized but languishing initiatives; and the growth of a new generation of cooperative relationships between federal, state, and local law enforcement agencies.
New Screening Systems and Interoperable Databases
New data-collection mandates and interlinked databases now allow the government to screen individuals in a number of ways and in a number of places: before they are granted a visa to travel to the United States, at the points of entry, and after their entry to the country. These databases now link biographic, immigration, and criminal histories of individuals, and are shared among law enforcement agencies in a fashion unprecedented before the 2001 terrorist attacks.
- Visa Security Program: Since 9/11, ICE has played a critical role in screening and vetting applications for visas at consular posts abroad through its Visa Security Program, which screens visa application information against terrorist watch lists and other intelligence data. In fiscal year (FY) 2010, VSP screened 950,000 applications, vetted 260,000 applicants, and recommended denial of visas to more than 1,000 applicants.
- US-VISIT: The US Visitor and Immigration Status Indicator Technology program, established in 2003, collects biometric information (fingerprints and photographs) for all noncitizens admitted to the country. Since 2009, the program has been in place in almost all land, sea, and air ports of entry. The collected biometric information is stored in IDENT (Automated Biometric Identification System), a database with over 108 million individual fingerprint records. IDENT is interoperable with FBI's Integrated Automated Fingerprint Identification System (IAFIS) which contains 66 million criminal records.
- SEVIS: The Student and Exchange Visitor Information System, though authorized by Congress in 1996, was launched only in December 2002. The program checks the biographical information of foreign students entering the United States against criminal and terrorist databases. SEVIS-participating schools are required to report when a student reports for classes, drops out, or changes a major.
- ESTA: The Electronic System for Travel Authorization launched in 2009 requires foreign travelers who are permitted to enter the United States without a visa to submit their biographic information before boarding a US-bound plane, with the data screened against watchlists and other databases. (Visitors from 36 countries that are part of the Visa Waiver Pilot Program are allowed to enter the United States without a visa).
A Well-Resourced New Agency
With the invigorated focus on national security, all the immigration-related functions of the government were moved in 2003 to the new Department of Homeland Security (DHS). The agency has seen a dramatic increase in its staffing and budget, with its workforce growing from 181,875 in FY 2004 to 230,000 in FY 2010 (with 39 percent dedicated to immigration functions). Within DHS, agencies tasked with immigration enforcement functions have shown huge surges in their budgets and staff. The budget of US Customs and Border Protection (CBP) has more than doubled (to $11.5 billion) from FY 2002 to FY 2010, while its staffing has seen a 43 percent increase over the same period. Border Patrol staffing on the northern border has increased by more than 565 percent since 2001. And ICE's budget has more than doubled (to $5.74 billion) from FY 2002 to FY 2010, its staff growing by just under 40 percent between FY 2004 and 2010.
A New Regime of Cooperative Enforcement
A number of new and robust immigration enforcement programs have gone into full gear since 9/11. Some were newly authorized by Congress, and some had been long authorized but dormant for one reason or another. Many of these enforcement programs have been made possible by effective use of interoperable databases and through cooperative arrangements among federal, state, and local law enforcement agencies. All of these programs have gained consistent and huge congressional support over the past decade because of their stated goal to counter national security threats.
- The National Fugitive Operation Program was launched in 2003 to apprehend and remove those noncitizens (known as absconders) who had failed to depart the country after final orders of removal. Between FY 2003 to FY 2010, the program's annual budget grew from $9 million to $230 million. More than 104 fugitive operations teams operate today, up from 8 in 2003; and in FY 2010 they arrested over 35,000 individuals.
- The 287(g) program was authorized by Congress in 1996, but the first state/federal agreement under the program was signed only after 9/11. Under these agreements, state and local 287(g) officers are delegated to enforce certain immigration laws. Between 2006 and 2010, the number of such agreements jumped from 8 to 69. In FY 2010, 287(g) officers placed "detainers" on more than 39,772 individuals, paving the way for their removal from the United States.
- Secure Communities was launched in 2008 to identify removable immigrants when they are booked into local jails for criminal offenses. Currently, Secure Communities operates in more than 1,500 state and local jails, and by 2013 it will be operational in all 3,181 state and local jails. In FY 2010, 90,937 noncitizens were arrested or booked by ICE through this program.
Today, many of the post-9/11 initiatives, though motivated and supported by a desire to address national security concerns, have increasingly become highly effective tools to track, apprehend, and remove run-of-the-mill unauthorized immigrants who pose no security threat. This has occurred against the backdrop of an historic rise in illegal immigration.
The terrorist attacks of September 11, 2001, which caused major ripples across so many facets of American life — from defense policy and the United States' relations with other governments to the country's internal security – have played a major role in reshaping the US immigration system. The system that exists today is dominated by national security and border-control considerations, a paradigm almost certain to continue for years to come.
Read more about post 9/11 policy changes in MPI's new fact sheet: Through the Prism of National Security: Major Immigration Policy and Program Changes in the Decade Since 9/11.
For a more detailed analysis of the policies affecting immigrants post 9/11, check out America's Challenge: Domestic Security, Civil Liberties and National Unity After September 11.
Read the Jan. 25, 2002 Attorney General memo on the alien absconder initiative.
Read the sixth circuit court of appeals' decision in Detroit Free Press v. Ashcroft.
Read the third circuit court of appeals' in North Jersey Media Group v. Ashcroft.
Read the second circuit court of appeals' decision in Turkmen v. Ashcroft.
Read the April 28, 2011 announcement ending the NSEERS program.
Read the congressional testimony of Deputy Associate Attorney General Lily Fu Swenson, speaking about post 9/11 immigration detention protocol at a hearing before the House immigration subcommittee, June 30, 2005.