U.S. MAKES IT EASIER TO DETAIN FOREIGNERS

The powers of the Immigration and Naturalization Service (INS) have been vastly expanded to detain foreigners understood to be a "danger to the community" or a "flight risk." Under the new Regulations signed by Attorney General John Ashcroft , INS also has the power to set aside orders of an immigration judge or of the Board of Immigration Appeals, based on only their subjective determination. Before these Rules came into effect, the INS would set aside a judicial ruling only in cases of clear-cut criminal activity.

The new Rules, effective October 29, 2001, were published in the Federal Register on October 31, 2001. By such publication, the requirement to provide the public an opportunity beforehand to comment on the new Rules was eliminated, considered necessary "to prevent the release of aliens who may pose a threat to national security." The new Regulations are an outgrowth of the focus on terrorism after the September 11, 2001 terrorist attacks in America.

Under the new INS Rules, detention of a foreigner may be based on very little or even no demonstrated evidence of the person's conduct. This has galvanized the American Civil Liberties Union to challenge the Rules in the United States District Court as an unconstitutional violation of the right of Due Process of foreigners present in the country. Before these Rules came into effect, the INS would set aside a judicial ruling only in cases of clear-cut criminal activity.

The United States Supreme Court has repeatedly upheld that foreigners, legal or illegal, have some fundamental constitutional rights of Due Process. In June 2001, the Court ruled that the Government could not hold aliens indefinitely as they are included among "persons" having the right to constitutional protection in the United States.

The U.S. Government has been unable to keep track of aliens who overstay their legal entry permits. These include not only students and tourists, but also those who entered the country on non-immigrant business visas such as H-1 and L-1 visas. Approximately 40 percent of the estimated eight million illegal aliens in the U.S. have abused the conditions of their visas. Many have married and then divorced fraudulently. The illegal resident population grows by about 275,000 annually. It does not include those who crossover unnoticed from various countries that border the U.S. With only 2000 agents as part of its force to monitor the increasingly porous U.S. borders, the INS is totally ill-equipped to handle such a large influx of illegal immigrants.

According to the Justice Department, the most number of detainees are from Pakistan, followed by Egypt, Turkey, Yemen, India, Jordan, Saudi Arabia, Morocco, Tunisia and Lebanon.

The following are the text of the new Regulation and the related Justice Department background paper explaining their action.

The New Regulation

In any case in which the District Director has determined that an alien should not be released or has set a bond of $10,000 or more, any order of the immigration judge authorizing release (on bond or otherwise) shall be stayed upon the Service's (INS) filing of a Notice of Service Intent to Appeal Custody Redetermination (Form EOIR-43) with the Immigration Court within one business day of the issuance of the Order, and shall remain in abeyance pending decision of the appeal by the Board of Immigration Appeals.

The stay shall lapse if the Service fails to file a notice of appeal with the Board in accordance with Section 3.38 within 10 business days of the issuance of the Order of the Immigration Judge. If the Board authorizes release (on bond or otherwise), that Order shall be automatically stayed for five business days.

If, within that five-day period, the Commissioner certifies the Board's custody Order to the Attorney General pursuant to Section 3.1(h)(1) of this Chapter, the Board's Order shall continue to be stayed pending the decision of the Attorney General.

Justice Department Paper on Implementation of the Order

The immediate implementation of this interim rule without prior public comment is necessary to prevent the release of aliens who may pose a threat to national security and to provide a clear set of procedural rules of administrative procedure with respect to determining the custody conditions and bond status for aliens during the pendency of Removal Proceedings.

The existing rules permit the Service to appeal a decision ordering the release of an alien, but in many cases the rules do not provide for a stay of the release decision during the time that the Service would be pursuing an appeal...

During this window of time, the Service may be required to release an alien that it believes is a threat to national security or public safety without even having the opportunity to present its case to the Board. The Automatic Stay provision allows the Service attorney to maintain the alien's custody status...

The current investigation in connection with recent terrorist activities has resulted in the detention of a large number of individuals. This may overwhelm the capacity of the Service to take the steps necessary to secure Stays of Redetermination in timely fashion. The Automatic Stay provision will address this problem and prevent the service and the Board from being overwhelmed with Stay requests.