Thursday, September 11, 2014

Notes on the Legacy of September 11, 2001 on U.S. Immigration Law

It is now 13 years since September 11, 2001.  The events of that day had a significant impact on the development of U.S. immigration law and its enforcement.  For example, in promulgating a regulation allowing for immigration procedures known as “special registration,” which required certain Arab and Muslim noncitizens to register with the Immigration and Naturalization Service, then-Attorney General John Ashcroft expressly invoked the plenary power doctrine in an attempt to immunize the facially discriminatory measure from the near-inevitable constitutional challenges; he emphasized matter-of-factly that

    the political branches of the government have plenary authority in the immigration area.  See     Fiallo v. Bell, 430 U.S. 787, 792 (1977); Mathews v. Diaz, 426 U.S. 67, 80-82 (1976).  In the     context of immigration and nationality laws, the Supreme Court has particularly “underscored     the limited scope of judicial inquiry.”  Fiallo, 430 U.S. at 792.

Registration and Monitoring of Certain Nonimmigrants, 67 Fed. Reg. 52584, 52585 (Aug 12, 2002) (emphasis added). 

Accepting the Attorney General’s general assertion that “the political branches of the government have plenary authority in the immigration area,” courts rejected constitutional challenges to special registration.   The special registration doctrine was one of a number of much-criticized measures directed at Arabs and Muslims in the “war on terror.”  See, e.g.,  Susan M. Akram & Kevin R. Johnson, Race, Civil Rights, and Immigration Law after September 11, 2001:  The Targeting of Arabs and Muslims, 58 NYU Ann. Surv. Am. L. 295 (2002).

Security fears quickly translated into growing popularity among members of Congress, as well as among the general public, to increase militarization of the U.S.-Mexico border and direct many aggressive measures at undocumented Mexican immigrants and immigrants generally, often in the name of protecting national security.  See Kevin R  Johnson & Bernard Trujillo, Immigration Reform, National Security After September 11, and the Future of North American Integration, 91 Minn. L. Rev. 1369, 1386-87, 1396-1404 (2007).   Even though there is little evidence that the southern border with Mexico has ever been breached by any person seeking to engage in what reasonably can be characterized as terrorist activities in the United States, political leaders after 2001 regularly invoked public safety concerns as justifying increased immigration enforcement efforts along the U.S.-Mexico border.

A renewed focus on public safety also appeared to influence the Supreme Court’s approach to immigration measures generally touching on public safety, such as, for example, making it more tolerant of the detention of immigrants convicted of criminal offenses.  See Margaret H. Taylor, Demore v. Kim:  Judicial Deference to Congressional Folly, in Immigration Stories 343, 344-45 (David A. Martin & Peter H. Schuck eds., 2005) (contending that the Supreme Court’s decision upholding mandatory detention of noncitizens convicted of certain categories of crimes in Demore v. Kim, 538 U.S. 510 (2003) was influenced by fears surrounding the “war on terror” following September 11, 2001 and explained the decision’s apparent departure from Zadvydas v. Davis, 533 U.S. 679 (2001), which was decided only months before September 11).

More than a decade has passed since September 11, 2001.  The aggressive push for extraordinary immigration enforcement measures in the name of public safety fortunately has diminished.   The push for greater enforcement now appears more motivated by a concern with numbers, including the much-publicized migration of unaccompanied minors from Central America.  In important respects, the trajectory of immigration law has seemingly returned to a place similar to where it was before September 11.


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