B efore September 11, the civil rights community faced attacks from conservative

Transcription

1

2 Frontline Lawyering: Defending the Attack on Immigrant Communities After September 11 By Sin Yen Ling B efore September 11, the civil rights community faced attacks from conservative think tanks, right-wing politicians, and religious zealots. Compounded by a judicial system that has stripped away the legal victories of the civil rights movement, practicing law that is accountable to the community through simultaneous and coordinated attacks in the courts of law, media and public opinion had become critical. 1 After September 11, engaging in a multipronged defense strategy, most particularly in defense of immigrants, has become even more critical. Immigrants suspected of terrorism or otherwise suspect based on their national origin have been detained in secret, required to submit to special registration procedures, and subjected to deportation. Over the past three years the Asian American Legal Defense and Education Fund (Aaldef) has employed a method of frontline lawyering, based on a bottom-up approach to legal practice, that has unveiled a secret pattern and practice of targeting immigrants based on religion and national origin. 2 In this article I examine how Aaldef has employed frontline lawyering through initiatives challenging (1) secret detention and (2) special registration. Sin Yen Ling Staff Attorney Asian American Legal Defense and Education Fund 99 Hudson St., 12th Floor New York, NY sling@aaldef.org I. Secret Detention: Shattering the Government s Secrecy Through Individual Due Process Secrecy has been the prevalent theme in post-september 11 immigration policies. Arguing that government-retrieved information could be leaked to terrorists planning additional attacks against the United States, the Bush administration employed the mosaic theory as a basis for closing immigration hearings. 3 On September 21, 2001, Chief Immigration Judge Michael Creppy issued a memorandum ordering all courts to be closed and to adhere to secret procedures when an immigrant detainee is labeled as special interest. 4 The Creppy memo mandated that case information, including the detainee s attorney, be cloaked from the public because of possible 1 Victor M. Hwang, The Hmong Campaign for Justice: A Practitioner s Perspective, 9 ASIAN LAW JOURNAL 83, 87 (2002). 2 The Asian American Legal Defense and Education Fund (Aaldef) is the first organization on the East Coast to protect and promote the civil rights of Asian Americans through litigation, legal advocacy, and community education. Founded in 1974, Aaldef focuses on the critical issues facing Asian Americans; such issues include immigrant rights, civic participation and voting rights, economic justice for workers, language rights, census, affirmative action, and the elimination of anti-asian violence and police brutality. 3 A declaration by Dale L. Watson, the Federal Bureau of Investigation s executive assistant director for counterterrorism and counterintelligence represented that if evidence is offered about a particular phone number link between a detainee and a number connected to a terrorist organization or member, the terrorists will be on notice that the United States is now aware of the link and may even be able to determine what sources and methods the United States used to become aware of the link. See Third Circuit Finds Creppy Memo Constitutional, INTERPRETER RELEASES, Oct. 21, 2002, at Memorandum from the Chief Immigration Judge Michael Creppy to all Immigration Judges and Court Administrators (Sept. 21, 2001) (on file with the Executive Office for Immigration Review); see also INTERPRETER RELEASES, Dec. 3, 2001, at 1816, Clearinghouse REVIEW Journal of Poverty Law and Policy September October 2004

3 classified evidence. Cases were placed in the special interest category pending Federal Bureau of Investigation (FBI) clearance when there remains an investigative interest in the detainee based on unsubstantiated connections to terrorists or September 11. The Creppy memo effectively closed the courtroom doors to family members, friends, the public, and the press. Information regarding the detainee and the case even confirmation as to whether the case was docketed on a court s calendar was restricted from the public. Khalid Albitar, a Jordanian who overstayed his visa, was a special interest case. On October 14, 2001, he was arrested by the FBI at a Citgo gas station in Rockland County, New York, where he was employed as a cash register clerk. He was detained at Passaic County jail for nine months. A week after incarceration, four FBI agents visited him at the jail. The agents showed him pictures of the nineteen September 11 hijackers; he responded without the benefit of counsel. Six weeks after the FBI visit, Albitar was transferred to an unknown location for polygraph testing that would last for two days, from 10:00 am until 4:00 p.m., and was again shown pictures of the nineteen hijackers without counsel present. When he was returned to Passaic County jail, he was placed in solitary confinement for twenty-four nights and segregated from the rest of the inmate population as if he were a terrorist threat. Special interest detainees faced prolonged detention; the government used immigration laws to circumvent the courts while government officials ruled out the possibility of terrorism. In Albitar s case the government alleged classified information, submitted by the assistant district counsel via an FBI boilerplate affidavit. The affidavit alleged (1) that a Middle Eastern looking man driving a red or gray older model Toyota sedan with out-of-state plates picked up hijacker Khalid Al-Midhar from Wayne Inn in New Jersey between July 15 and July 22, 2001; (2) that he lived with hijackers in Southern California from February 5 to May 31, 2000; and (3) that he was overheard telling people that he lived with one of the hijackers in Hamburg, Germany. These FBI boilerplate affidavits constituted the secret evidence in most secret detention cases. Secret evidence was given considerable weight when an immigration judge exercised discretion in granting bond or immigration relief. Often the government refused, for reasons of national security, to produce the FBI agent for testimony. Transparency was lacking as to the source of the agent s evidence and how the FBI obtained it. Detainees were prevented from crossexamining the government s witnesses and consequently deprived of their constitutional due process rights. Representing members of the press, the American Civil Liberties Union (ACLU) filed in federal court lawsuits based on First Amendment grounds challenging the Creppy memo; the suits resulted in a circuit split on the question of open deportation hearings. 5 However, the arguments in the ACLU s cases had no direct impact on individuals such as Albitar because they did not address a detainee s individual due process right in secret detention. While the notion of openness in courtrooms was an important issue to litigate, challenging systemic disregard of the Constitution in the government s campaign against terrorism was equally important for detainees. The key was to preserve a record before the immigration court, to raise constitutional arguments, and to expose politically the government s sloppy investigation by providing the detainee s side of the story and by forcing immigration judges, sitting in these courtrooms, to question the application of the Creppy memo. In Albitar s case Aaldef investigated accusations of the detainee s links to September 11. An Aaldef attorney traveled several hours to Rockland County to 5 North Jersey Media Group Inc. v. Ashcroft, 205 F. Supp. 2d 288 (D.N.J. 2002); see also Detroit Free Press v. Ashcroft, 303 F.3d 681 (6th Cir. 2002). Clearinghouse REVIEW Journal of Poverty Law and Policy September October

4 search through business records at the Citgo gas station. The attorney discovered several receipts and stubs, signed by Albitar, for goods and cigarettes purchased on the days he was accused of picking up a hijacker in New Jersey. The receipts containing his signatures proved that he was working in New York and was nowhere near New Jersey. The Aaldef attorney also examined the time period during which it was alleged that Albitar lived with a hijacker in Southern California. Immigration s own records showed that Albitar was not present in the United States at the time because his first and only entry to the United States was April 3, To bolster this defense, Aaldef scrutinized Albitar s travel patterns in the last several years and discovered that he was living with his sister in Hebron, Israel, between February 5 and May 31, Aaldef filed copies of his passport containing Israeli entry-departure stamps. Further investigation disputed the accusation that Albitar resided with Mohammad Atta in Hamburg, Germany. By researching Mohammad Atta s history through various accounts in the media, including his travel pattern within Hamburg, Aaldef filed evidence that Atta was not living in Hamburg at the same time as Albitar. Instead Atta was studying at Technical University, in Harburg, Germany. Aaldef also filed an affidavit from Albitar s former roommates stating that Albitar and a former roommate had been living in housing provided by their employer, a clothing company. At the merits hearing for voluntary departure, the immigration judge expressed concerns about the Creppy memo and its application to deportation proceedings. Frontline lawyering through the direct representation of special interest detainees revealed an enormous amount of information about which individuals fell into the September 11 dragnet, which government agencies were involved in secret evidence cases, the nature of the information deemed classified, and how the courts were following secret procedures. More important, special interest detainees, such as Albitar, wanted to feel a sense of vindication. While the courts attempted to silence Albitar, he used the press to expose the government s campaign to scapegoat him. Frontline lawyering enabled advocates to meet the detainee s immediate needs. It pushed the judicial system and the individuals involved to examine the Bush administration s policies through a political lens. II. Special Registration: Mobilizing Immigrants Against Deportation The call-in special registration portion of the National Security Entry-Exit Registration System has effectively forced the evacuation of thousands of immigrants. 6 Under the program, begun in August 2002, certain men (and boys over 16) from twenty-five predominantly Muslim countries and North Korea were required to report to local immigration offices between November 2002 and April The program had a hybrid purpose of identifying nonimmigrants based on religion and national origin, collecting private information and sharing it with law enforcement agencies, subjecting individuals to lengthy questioning, fingerprinting, and photographing, and placing individuals in deportation proceedings despite their having pending applications. 8 The applications were pending before the former Immigration and Naturalization Services, now the Department of Homeland 6 Registering and Monitoring of Certain Nonimmigrants, 67 Fed. Reg (2002). 7 Registration of Certain Nonimmigrant Aliens from Designated Countries, 67 Fed. Reg , (2002); 68 id (2003); Permission for Certain Nonimmigrant Aliens From Designated Countries to Register in a Timely Fashion, id. at 2366; Registration of Certain Nonimmigrant Aliens from Designated Countries, 68 id. at We surveyed 219 of the approximately 800 people who received legal assistance from Aaldef. Forty-two percent who registered were put in deportation proceedings. ASIAN AMERICAN LEGAL DEFENSE AND EDUCATION FUND, SPECIAL REGISTRATION: DISCRIMINATION AND XENOPHOBIA AS GOVERNMENT POLICY (2004), available at Clearinghouse REVIEW Journal of Poverty Law and Policy September October 2004

5 Security. 9 The program s ultimate goal was to monitor foreign nationals deemed to be a threat to national security and to track down leads to potential terrorists or terrorist activities. Because of the extremely short two-month deadline allowed for each group under special registration, mass confusion and a lack of accurate legal information ensued. Aaldef pursued several strategies based on the profile of the typical special registrant: undocumented, monolingual, workingclass Muslims, whose countries of origin were Bangladesh, Pakistan, North Korea, and Indonesia. First, we produced and circulated legal alerts, translated in Urdu, Bangla, Korean, and Bahasa Indonesian, with details on who was required to register and who was exempt under the rules, a realistic assessment of the risks of registering, and contact information for Aaldef and other organizations. Many who fell under the regulations and were not exempt from special registration were in danger of being placed in deportation proceedings if they did report to Homeland Security. And those who had pending applications with the U.S. Citizenship and Immigration Services and had current priority dates or were about to receive their green cards could be placed in deportation if they did not register with Homeland Security. To meet the demands for legal information, between January and April 2003, Aaldef offered hotline-style legal consultations over the phone and, in partnership with New York City communitybased organizations, held one to two free legal clinics per week. Clinics were most effective when partnered with social clubs, masjids (Islamic houses of worship and congregation), and churches. At these clinics and via the hotline, Aaldef lawyers offered information about (1) whether individuals were legally required to register under the complex regulations, (2) what might happen to an individual if he did register, and (3) what might happen if he did not register. Immigrant advocacy organizations criticized Homeland Security for giving an inadequate amount of time for individuals to report for special registration. 10 In response, the government extended the registration deadline for certain groups. 11 By the time individuals in one group, which included nationals from Bangladesh, Indonesia, Kuwait, Egypt, and Jordan, were required to register, most had sought several rounds of legal advice either through Aaldef or private practitioners or both. To reach those who lacked access to legal resources, Aaldef terminated its clinics and moved its outreach to the streets in front of New York City s immigration office at 26 Federal Plaza. Armed with Arabic, Bangla, and Urdu translators, Aaldef lawyers approached special registrants lined up on Broadway at 7:00 a.m. during the last month of special registration. Aaldef received hundreds of calls from individuals seeking counsel during the registration phase. In response, Aaldef organized between February and April 2003 specific weekdays on which individuals could retain Aaldef attorneys for registration. On any given day, Aaldef accompanied between one and five individuals to registration; this allowed some form of monitoring without notification of Homeland Security. Given the danger of deportation, having attorneys present on a regular basis was advantageous to clients. 12 Often counsel could use the opportunity to build a favorable record or 9 Exec. Order No. 13,228, 8 C.F.R. Section 2.1. On March 1, 2003, the Immigration and Naturalization Services responsibilities were transferred to the new U.S. Department of Homeland Security, which comprises three agencies: U.S. Immigration and Customs Enforcement, U.S. Citizenship and Immigration Services, and U.S. Customs and Border Protection. 10 Dan Eggan, U.S. Set to Revise How It Tracks Some Visitors: Muslims Have Protested Use of Registration, WASHINGTON POST, Nov. 21, 2003, at A1. 11 Permission for Certain Nonimmigrant Aliens from Designated Countries to Register in a Timely Fashion, 68 Fed. Reg (2003); Registration of Certain Nonimmigrant Aliens from Designated Countries, id. at Haider Rizvi, U.S. Rights: Deportation Trap Threatens Muslim, Arab Families, INTERNATIONAL PRESS SERVICE, Aug. 25, Clearinghouse REVIEW Journal of Poverty Law and Policy September October

6 to persuade Homeland Security to exercise prosecutorial discretion in situations where equity weighed in the client s favor. Inside 26 Federal Plaza individuals were instructed to go to a newly renovated room, on the third floor, with a holding capacity of 200 people. Security required each to surrender his passport and I-94, and entry and departure record, in exchange for a registration number and a one-page form asking for biographical information. The wait to register took from an hour to as long as eight hours. Immigration officers conducted the registration behind a booth; registrants, under oath, were questioned about the immigration status of their family members, their employment status, their credit card accounts, their political opinions, their religious beliefs, and their affiliation, if any, with terrorists or their support, if any, of terrorist activities. If the registrant was documented or had no reason to be suspected of terrorism, his passport and I-94 were returned with a fingerprint identification number written in the entry-departure record indicating that he had completed special registration. However, if the registrant was deemed not lawfully in the United States, or was suspected of criminal or terrorist activities, he waited several more hours to be taken to investigations for additional questioning, fingerprinting, and photographing. Fifty-six percent of Aaldef s clients were escorted to investigations. These individuals were often held in immigration custody overnight, denied access to counsel, and sometimes handcuffed. 13 Upon release from immigration custody, clients contacted Aaldef to report how long they had been held. Aaldef also documented the nature of the questions asked, the layout of the locked rooms where the men were held, and the number of men issued notices to appear as well as the basis for their being placed in deportation proceedings. Aaldef found that 91 percent of the individuals taken into investigations were subsequently subject to deportation proceedings. 14 Eighty percent of them had overstayed their visas. 15 None was charged with any connection to Al Qaeda or any other violent political organization. Attorneys were denied access to their clients at investigations, the most crucial stage of special registration, when information solicited from individuals was used to prepare the charging document. Although statements made to an immigration officer are admissible in immigration court, Homeland Security stated that lawyers were not permitted access to their clients when they re being booked. 16 Through Aaldef s direct representation at registration, attorneys documented that registration went far beyond booking to detailed questioning: 26 percent of the overlapping questions related to religion; 11 percent, political opinions or activities; 11 percent, connections to terrorism; 37 percent, immigration status of family members; 37 percent, marital status; 47 percent, criminal history; and 26 percent, miscellaneous matters such as travel history outside the United States or possession of an international driver s license. 17 With this information, Aaldef contacted the supervisory agent at the New York District Office of Homeland Security to advocate access to counsel during investigations. 18 Following a phone conversation, Homeland Security simply booked Aaldef clients without incident but continued to deny them access to counsel. 13 See ASIAN AMERICAN LEGAL DEFENSE AND EDUCATION FUND, supra note 8, at See id. at See id. at George Lardner Jr., Registration Program Problems Cited; Immigrants Attorneys Kept from Investigative Interviews, WASHINGTON POST, Mar. 20, 2003, at A See ASIAN AMERICAN LEGAL DEFENSE AND EDUCATION FUND, supra note 8, at Interview with Christopher Rossi, Supervisory Special Agent, Office of Immigration and Customs Enforcement, U.S. Department of Homeland Security, New York, New York (June 1, 2003). 242 Clearinghouse REVIEW Journal of Poverty Law and Policy September October 2004

7 At the conclusion of the special registration program, Homeland Security reported that 82,581 individuals nationwide had been questioned, fingerprinted, and interrogated under oath. 19 By May 11, 2003, of the approximately 82,000 individuals who complied with the law, 13,153 were placed in deportation proceedings. 20 The New York District Office of Homeland Security alone issued over 2,000 notices to appear by late May Individuals placed in deportation proceedings faced little opportunity to remain in the United States due to current immigration laws. As a result, attorneys were forced to argue unconventional legal claims to stretch out deportation proceedings as long as possible, while hoping that a comprehensive immigration law would be passed or that pending applications before Citizenship and Immigration Services would be adjudicated in the interim. In addition to fighting deportation through immigration court, Aaldef pursued policy and organizing strategies. Aaldef, in conjunction with community partners, Families for Freedom and Solidarity Action for Human Rights, formed the Special Registration Action Network. Composed of individuals facing deportation due to special registration, supports individuals in self-advocacy and with resources. The network staged demonstrations when the September 11 Commission came to New York City and held press conferences when a member departed the United States as a result of special registration. The network s formation was key to the legal victory of one of its members facing deportation. Malik Akbar, a 66-year-old Pakistani national who suffers from a multitude of illnesses including tuberculosis, coronary artery disease, renal failure, anemia, diabetes, shortness of breath, and hypertension, is a husband and father to four children and has a pending application for a green card. He was placed in deportation proceedings after complying with special registration. Aaldef filed an application for deferred action asking that Akbar be allowed to remain in the United States because of the severity of his medical condition. Considering the rarity of successful deferred action cases, Aaldef, with the network, organized an intense letter-writing campaign and lobbied for meetings with Cong. Walter Crowley. Local New York City papers covered the story, exerting political pressure on Homeland Security to decide before Akbar s deportation was effected. On May 27, 2004, Homeland Security granted Akbar deferred action status. Litigation, in tandem with policy, advocacy, and community organizing led to the legal victory for Malik Akbar and the community. Because of the constant lack of resources at nonprofit organizations, a full-fledged campaign involving various tools of litigation, policy, and organizing may mean sacrificing other important issues affecting the community. The principle behind frontline lawyering, regardless of strategy, is that lawyering should place the community s interest ahead of the interest of the select few. 19 Rachel L. Swarns, Thousands of Arabs and Muslims Could Be Deported, Officials Say, NEW YORK TIMES, June 7, 2003, at A1. 20 Id. 21 See Rossi, supra note 18. Clearinghouse REVIEW Journal of Poverty Law and Policy September October