Civil Liberties Restoration Act introduced to counter post-9/11 erosion of basic protections

IMMIGRATION LAW & POLICY

Congressional Developments

Civil Liberties Restoration Act introduced to counter post-9/11 erosion of basic protections
Immigrants' Rights Update, Vol. 18, No. 4, June 18, 2004

The Civil Liberties Restoration Act (CLRA), introduced in the U.S. Senate and House of Representatives on June 16, 2004, provides for taking restrained steps to restore essential protections and basic freedoms denied to many non–U.S. citizens in the aftermath of the Sept. 11, 2001, terror attacks.

The steps proposed by the new legislation fall into two general categories: those that would restore protections to non–U.S. citizens who are having to deal with immigration authorities or the civil immigration justice system, and those that would help protect all residents of the U.S. against the further erosion of their constitutionally protected civil liberties and right to privacy.

Compelling interest required to close hearings. Under section 101 of the CLRA, in order to close all or part of a hearing before an immigration judge (IJ), the government would have to show a compelling privacy or national security interest that would justify closing the hearing. This provision is prompted by the Sept. 21, 2001, “Creppy memo,” in which the chief immigration judge, whose office is part of the U.S. Dept. of Justice (DOJ), ordered IJs to close all hearings held for noncitizens detained in connection with the government’s investigation of the 9/11 attacks. The government kept secret even the identities of those who were detained; and in hundreds of the hearings for those who were charged with immigration offenses, the IJs excluded all family members, visitors, and reporters.

Time limits for charging detainees and bringing them before a judge. Section 201 would require that the Dept. of Homeland Security (DHS) serve a Notice to Appear (NTA) on noncitizens within 48 hours of their being arrested or detained. (The NTA is the charging document that begins removal proceedings against the person on whom it is served.) Furthermore, the government would be required to bring any noncitizen held for more than 48 hours before an IJ within 72 hours of the person’s arrest or detention. An exemption to this requirement would apply in the cases of persons who the attorney general certifies, based on reasonable grounds, have engaged in espionage or a terrorism offense.

This provision would overrule the interim rule the DOJ issued on Sept. 20, 2001, that extended the period within which a detainee must be charged (i.e., served an NTA) from 24 hours to 48 hours or, in “emergency or other extraordinary circumstances,” for “an additional reasonable period of time.” As the DOJ inspector general found in investigating the government’s treatment of post-9/11 detainees, this policy resulted in their languishing in jail for weeks or even months before being charged. As a result, they did not know why they were being held, nor could they effectively challenge their detention or obtain release on bond. (For more results of the inspector general’s investigation, see “OIG Report Criticizes the Government’s Treatment of 9/11 Detainees,” Immigrants’ Rights Update, July 15, 2003, p. 1.)

Bond determinations. Under section 202 of the CLRA, subject to limited exceptions, noncitizens in removal proceedings would be entitled to an individualized determination of whether or not they pose a flight risk or a danger to the community should they be released from detention. For those found not to pose such a risk, the DHS would be required to set a reasonable bond or other conditions for them that would ensure their appearance in court. IJs would have the authority to review the DHS’s determination, and only an IJ could revoke or modify a bond based on changed circumstances.

This provision responds to the government’s post-9/11 practice of denying bond to whole classes of noncitizens, a practice that continues to this day against Haitians who arrive by sea seeking asylum in the U.S. and are imprisoned throughout their asylum proceedings. It would also invalidate the DHS’s recently announced “Hartford pilot project,” which requires that noncitizens who lose their cases before an IJ be detained, even when they have appealed the decision.

Section 203 would permit the Board of Immigration Appeals to stay for only a limited time period an IJ’s decision to release a noncitizen, and only when the government has established it is likely to prevail on appeal and there is a risk of irreparable harm if a stay is not issued. This would overturn the DOJ’s Oct. 31, 2001, rule giving itself the power to automatically stay an IJ’s bond decision, which made such decisions meaningless.

Immigration courts and the Board of Immigration Appeals. In an attempt to make the immigration court system more independent, section 204 of the CLRA would create an “independent regulatory agency” within the DOJ called the Immigration Review Commission to oversee the immigration court system, and it would abolish the Executive Office for Immigration Review.

This section also would require that all cases coming before the Board of Immigration Appeals be heard by a three-member panel, as they were prior to procedural “reforms” instituted by the DOJ in 2002. Under these reforms, individual BIA members have issued thousands of decisions without written opinions, most of which have rejected the claims of noncitizen appellants. While the reforms were purportedly designed to reduce the backlog of appeals to the BIA, their effect has been to increase the number of cases appealed to the federal courts (see “BIA Backlog Merely Shifted to Federal Courts, Study Finds,” IRU, Dec. 18, 2003, p. 2).

NSEERS/special registration. Section 301 of the CLRA would terminate the National Security Entry-Exit Registration System (NSEERS or “special registration”) program. It would end removal proceedings against noncitizens who were in lawful status but were placed in removal proceedings solely because they failed to comply with the requirements of the NSEERS program. Under this provision, noncitizens who were not in lawful status before being placed in removal proceedings as a result of having complied with the NSEERS requirements could also have their removal proceedings terminated, but only if they are eligible for or have a current application pending for an immigration benefit for which a visa is immediately available, or if they are eligible to apply for some other form of relief, such as asylum. An exception would apply in the cases of people who are removable because they have engaged in terrorist activity or have been convicted of certain crimes.

The NSEERS program began on Aug. 12, 2002, as a tracking scheme which requires that visitors from certain countries—and others whom an immigration inspector decides meet certain secret criteria—be fingerprinted, photographed, and interrogated when they enter the U.S. The DOJ later expanded it to a “call-in” program applied to men already in the U.S. who are from 25 predominantly Muslim or Arab countries and age 16 or older. Some of this discriminatory program’s registration requirements were suspended in 2003, but many noncitizens remain caught in the web of complications it created. (For more on NSEERS/special registration, see “Some Special Registration Requirements Ended, but Program Continues,” IRU, Dec. 18, 2003, p. 2.)

Positive exercise of prosecutorial discretion. Section 302 would codify an existing DHS memo about prosecutorial discretion in instituting removal proceedings against noncitizens, and it identifies positive factors the DHS should consider in exercising its discretion, such as family ties to U.S. citizens or residents, humanitarian concerns, and eligibility for immigration relief. This provision is designed to encourage the DHS to actually use its discretionary power in a positive way, especially on behalf of the thousands of people who, in good faith, complied with the special registration requirements (discussed above) but were placed in removal proceedings even though they were in the process of legalizing their status.

Change of address/registration. The CLRA’s section 303 would eliminate criminal liability and deportation as penalties for failure to timely file a change-of-address form and would eliminate criminal liability for technical registration violations. Those drastic penalties would be replaced with civil fines. This provision would overrule a rule issued by the attorney general in July 2003 clarifying that a “willful” failure to register with the immigration authorities, or a failure to give written notice of a change in address, is a criminal violation. Announcement of that previously unenforced rule caused immigration offices to be flooded with change-of-address forms in quantities too great for them to handle. Many were stored unread or, in at least one case, shredded.

Accuracy of information entered into NCIC. Section 304 would require the attorney general to comply with the Privacy Act’s accuracy requirements for data entered into the National Crime Information Center (NCIC) database. This would undo the Mar. 24, 2003, DOJ order exempting the NCIC from a longstanding legal requirement that information in major law enforcement databases be “accurate, relevant, timely and complete.” That order was particularly significant because many notoriously inaccurate immigration records are now included in the NCIC, the nation’s principal crime information database, accessed daily by hundreds of thousands of police officers around the country. (For more on this, see “Justice Dept. Order Exempts Crime Database from Accuracy Requirement,” IRU, June 3, 2003, p. 6.)

Right to challenge information gathered secretly. Section 401 of the CLRA provides that when information gathered under the authorization of the Foreign Intelligence Surveillance Act (FISA)—e.g., information derived from electronic surveillance, physical searches, business records, pen registers, or trap and trace devices—is introduced in a criminal case, disclosure of the surveillance application, order, or other materials relating to the surveillance would be permitted under the procedures set forth in the Classified Information Procedures Act. This would give criminal defendants the chance to contest the introduction of this evidence, while still protecting national security.

Data-mining. Section 402 would require all federal agencies to report to Congress within 90 days and every year thereafter on data-mining programs used to find a pattern indicating terrorist or other criminal activity and on how these programs implicate the civil liberties and privacy of all Americans. The General Accounting Office recently reported that at least 52 federal agencies are using or have planned to use data mining on public and private-sector databases (see Data Mining: Federal Efforts Cover a Wide Range of Uses, http://www.gao.gov/highlights/d04548high.pdf). Despite this, little is known of the programs until they are in effect, and few privacy protections exist.

Sponsors of the CLRA in the Senate are Sens. Edward M. Kennedy (MA), Patrick Leahy (VT), Russell Feingold (WI), and Richard J. Durbin (IL); and in the House, Reps. Howard Berman (CA) and Bill Delahunt (MA)—all Democrats. The bill does not yet have any Republican cosponsors.

Even before 9/11, noncitizens did not have many of the due process and other legal protections most U.S. citizens take for granted. The terrorist attacks provided a convenient opportunity for the Bush administration to further erode those protections. But the administration has presented no evidence that lessening the rights of noncitizens has enhanced national security in any meaningful way. The introduction of the CLRA is only the first step toward undoing the damage done by post-9/11 legislation and policies.