Arc of '72

NOTE: Originally published at the Immigration Symposium at Penn State Law School on September 16, 2011. This article has been re-posted with the permission of the author.

By Sin Yen Ling, Senior Staff Attorney at the Asian Law Caucus

On May 1, 2011, major television stations interrupted the evening with the announcement that Osama Bin Laden was dead.  President Obama went live at 11:00 p.m. pacific standard time.  As the details trickled in, I felt an immediate rush of emotions: grief, sadness, and anguish.  Memories came rushing back to me.  I remembered where I was when the World Trade Center came down that morning.  I remembered the immediate days after 9.11 when I was triaging emails and phone calls at the Asian American Legal Defense and Education Fund (“AALDEF”) concerning hate incidents targeting Sikhs in New York City and around the country.  I remembered the hundreds of South Asian, Arab and Muslim men I represented in immigration detention months and years after September 11^th.  While the memories seemed so long ago, on the night of May 1^st, the memories came back like it had all happened yesterday.

In the immediate aftermath of 9.11, the Bush Administration implemented policies such as secret detention, special registration and the absconder initiative, specifically, targeting South Asian, Arab and Muslim communities.  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.”  In August 2002, the call-in registration portion of the National Security Entry-Exit Registration System (“NSEERS”) mandated that 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 2003.  At the conclusion of the special registration program, 82,581 individuals nationwide had been questioned, fingerprinted and interrogated under oath. These blanket policies were intended to racially profile these communities, indefinitely detain them pending terrorism investigations based solely on race and religion and then deport them back to their home countries without ever charging them with terrorism.   There is no question as to the racial and religious overtones of these policies.  At AALDEF, in New York City, I represented many of these individuals from 2001 to 2005.  These individuals were predominantly male, 16-45 years, and recent immigrants from South Asian, Arab and Muslim countries.

Throughout this decade, many of these post 9.11 policies have reached beyond the racial scope of the South Asian, Arab and Muslim diaspora.  The threat of another 9.11 has become a reason to expand these policies to exclude all immigrants, regardless of their race and religion.  It was no longer just about race and religion, but about national origin.  Many of these policies are now aimed at preventing noncitizens from obtaining immigration status including political asylum and lawful permanent residency by alleging that these individuals engaged in “material support to terrorism.”  These same allegations were used to prevent individuals from immigrating to the United States to join their families or to work or attend conferences in the U.S.  Other remnants of post 9.11, called the FBI “Name Check” delayed applications for citizenship because of a “hit” using some variation of their names.   Communities impacted by these policies expanded to include Asians, Latinos, Eastern Europeans, Russians, and Africans.  While the earlier policies worked towards ferreting out individuals based on their race and religion, later policies aimed at excluding individuals and keeping them out of the country because they were not American citizens.

After four years of post 9.11 cases, I was burnt out and exhausted.  I moved to San Francisco, California hoping to take a break from these cases to focus on broader immigrants’ rights issue.  To my surprise, I found that it was impossible to avoid these issues because the post 9.11 policies became deeply entrenched in the immigration system. Since 2006, I have been working at the Asian Law Caucus, the first civil rights organization serving the Asian Pacific American community.  At the Caucus, my work ranges from representing immigrants facing deportation while in ICE custody to affirmative litigation in the SB1070 cases in the South, ie., Georgia and Alabama.

On July 2, 2007, the Asian Law Caucus, along with the American Civil Liberties Union (“ACLU”), ACLU of Northern California and Council for American Islamic Relations, brought a lawsuit in the Northern District of California challenging the FBI “Name Check” process as applied to the naturalization process.  Lawful permanent residents eligible to become a citizen must file an N-400 application.  U.S. Citizenship and Immigration Services (CIS) runs each of these applications against a number of databases including the FBI “name check.”  In response to 9.11, the FBI “name check” was expanded to include not only the FBI’s “main files” but also “references.”  Applicants’ names register a “hit” if they were merely a witness or victim of a crime, if they had assisted with the FBI with an investigation, or if they had undergone an employment-related security clearance in the past.  The name checks also turn up a high number of false positives because they use alternate permutations of applicants’ names.  If there is a “hit,” CIS will not continue to process a naturalization application even when the law required that an adjudication be made within 120 days of an examination. By May 2008, the number of pending citizenship cases had ballooned up to 329,000 cases, with 64 percent of these cases stalled for more than 90 days.

In Ahmadi v. Chertoff, our class plaintiffs came from countries including China (including Hong Kong), India, Pakistan, Russia, Canada, Belgium, Bulgaria, Czech Republic, and Afghanistan.  At the Asian Law Caucus, we received over 300 intakes involving naturalization delays due to the FBI name check, with a disproportionate impact on the Chinese, Russian and Muslim communities.  The expansion of the FBI “name check” after 9.11 was intended to exclude as many noncitizens from obtaining the rights and benefits of citizenship which includes the right to vote, the right to file visa petitions for immediate family members, and the right to federal benefits.  Ahmadi v. Chertoff settled in 2008 as did most of the class action lawsuits filed in response to the FBI “name check.”

On January 25, 2002, the Department of Justice issued the Absconder Initiative Memorandum which outlined the goal of identifying, apprehending and deporting individuals with final orders of removal.  Individuals arrested under the Absconder Initiative in the months following 9.11 were predominantly Muslims.  By 2008, 33,997 noncitizens were detained as part of the Fugitive Operations Apprehensions which morphed from the Alien Absconder Initiative initially targeting terrorists.  Ten years ago, I only represented Muslims who were arrested under the fugitive operations initiative.  Today, in California, there isn’t a week that passes where I do not receive a phone call involving a fugitive operations case except the person is no longer Muslim, but Asian and/or Latino.  The most notable fugitive operations case I recently handled involved the arrest of Steve Li, a Peruvian Chinese DREAM Act student whose case garnered national attention.  He was 12-years old when he came to the United States.  He was 15-years old when he was ordered removed by the Board of Immigration Appeals.  He was 20-years old and studying at City College of San Francisco when ICE raided his home and arrested him.  He was involuntarily transferred to the Florence Detention Center in Arizona and detained for approximately three months before California Senator Dianne Feinstein intervened with a private immigration bill. Illinois Senator Dick Durbin cited Steve’s case when he reintroduced the DREAM Act on May 11, 2011.  Steve is not South Asian, Arab or Muslim, nor is he a terrorist or has never engaged in terrorist activities.

Today’s post 9.11 policies aim at preventing Muslims from entering the country even if they were properly petitioned by family members and then granted an immigrant visa.  In February 2010, the Asian Law Caucus filed a complaint with the Northern District of California on behalf of Fauzia Din, a U.S. Citizen and Afghani national, who petitioned her husband, an Afghani citizen.  Fauzia’s husband was employed as a government clerk in the Afghan Ministry of Education since 2003. His job duties involved processing paperwork and other low-level administrative duties.  From 1992 to 2003, he worked as a payroll clerk in the Afghan Ministry of Social Welfare, where he processed payroll for school teachers and performed other low-level administrative duties.  From 1996-2001, during the Taliban occupation of Afghanistan, he continued to work in the Ministry of Social Welfare in the same capacity as before, and after, the Taliban occupation.  During the Taliban occupation of Afghanistan, he never implemented any policy changes on the Taliban’s behalf.

In 2006, Fauzia filed an I-130 Petition for Alien Relative for her husband and it was approved on 2008.  On July 13, 2009, the American Embassy denied the visa petition under INA § 212(a)(3)(B), a provision of the Act applicable to “terrorist activities.”  However, the Government never explained what the terrorist activities involved.  Under consular process rules, a consulate decision to issue or withhold a visa is not subject to either administrative or judicial review unless the denial of the visa implicates the constitutional rights of American citizens.  Our lawsuit argued that the consular officer’s denial of her immigrant visa petition on behalf of her husband violated her constitutional right to due process.  The case is currently before the Ninth Circuit Court of Appeals.  Fauzia has been separated from her husband for the past five years.

Similarly, in 2009, the Asian Law Caucus represented the family member of Umar Hayat.  Hayat is best known for his association with the Lodi Terrorism Case.  Umar Hayat, an ice cream truck driver, and his son, Hamid Hayat were arrested in 2006 when an informant provided bad intelligence claiming that Osama Bin Laden’s deputy, Ayman Al Zawahiri, had visited Lodi, California.  Later, this intelligence turned out to be false.  The Government dropped charges against Umar Hayat, but his son was sentenced to 24 years in prison for attending a training camp in Pakistan.  In 2009, Mr. Hayat’s relative was granted an immigrant visa based on his U.S. Citizen wife’s visa petition. He interviewed at the American Embassy in Islamabad and consular processed with a visa issued on September 2009.  Mid-air through his travels and before he arrived at the San Francisco International Airport (“SFO”), the Government revoked his visa without explanation and instead, paroled him into the United States.  He was detained at SFO for approximately five hours. He was allowed to enter the U.S. through the parole status, but was not considered to have been admitted for the purposes of immigration laws.  About three months later, he was given an appointment to return to Borders and Customs expecting that he would be issued a Notice to Appear and be allowed to appear before an Immigration Judge.   Instead, he was interrogated for several hours, arrested, detained and expeditiously removed after hours of interrogation.  As his counsel, I was not allowed to represent my client and was kicked out of the interview when I asked to speak with my client privately when he was asked whether he feared returning to Pakistan.  A frail, old, diabetic man who requires insulin shots was hauled off to a local county jail before he was put on a plane back to Pakistan.  It was clear that Mr. Hayat’s relative was paroled into the U.S. only for the purposes of gathering intelligence.  As soon as they obtained information, they deported him from the United States.

On the night of May 1st, we all watched images broadcast from outside the White House and near Ground Zero in New York City.  We watched hordes of young people, mostly college students, celebrating in jubilation and extreme jingoism.  These are the children of 9.11 — young people who were only 8-10 years old and are now in their late teens and early 20’s.  They grew up with catch phrases like “war on terrorism” and “weapons of mass destruction.”   The celebrations in front of the White House were seen and heard around the world.  These disturbing images reflect on all Americans and the fact that we have not progressed in the past decade.  In spite of the great work of lawyers and advocates immediately after 9.11, we have failed to learn and reflect from lessons of the past, times like Japanese American internment when we forfeited people’s rights in search of a false sense of security.

On September 11^th of this year, we will mark the ten year anniversary of the day that changed all of our lives, and particularly, the lives of immigrants, South Asians, Arabs and Muslims.  A new paradigm was created after 9.11 where the balance tipped in favor of creating greater power in government over the rights of the people.  It permits us to interpret the Constitution in a way that justifies the detention of individuals in Guantanamo for nearly a decade without charging them.  It refuses these men access to civilian courts so that they can be properly tried.  The new norm justifies acts of water boarding and other forms of torture, because we have convinced ourselves that the information we retrieved led to Bin Laden.  It is a paradigm that fails to question government conduct that includes illegal wiretapping and then permits the government to hide behind the doctrine of “states secrets.”  When we look at the images of the young people in front of the White House that night, sitting on trees, and celebrating like it was the Super Bowl, I am anxious at how much we are willing to give up and accept as the norm. If we do not challenge this paradigm, it will continue to be sanctioned by the courts and supported by the Obama Administration.