immigration law, increasing the likelihood of unfair or unlawful arrests and detentions or other civil rights abuses. To forestall some of these concerns, the CLRA would require information entered into the NCIC database to comply with the Privacy Act accuracy standards.

Implementing a discriminatory "special registration" policy: The National Security Entry-Exit Registration System (NSEERS or special registration) imposes new registration requirements on certain applicants for admission to the U.S. as well as on certain non-citizens already living in the U.S. The latter requirement, known as call-in registration, required all males 16 years of age or older, who were citizens or nationals of one of twenty-five designated predominantly Muslim countries, and who entered the U.S. as nonimmigrants before certain designated dates, to be interrogated, fingerprinted, and photographed. Administration protests to the contrary notwithstanding, the call-in registration program targeted people based on national origin, race and religion, rather than on specific intelligence information. Billed as a national security initiative, NSEERS obligated men from Muslim countries to register so that the government could get a better sense of who was in the country. Dutifully, more than 85,000 people registered; tragically, more than 13,000 of the registrants were placed into removal proceedings due to immigration status violations. Although many of the violations were technical and many registrants were on the path to normalizing their status, they were placed in proceedings nevertheless.

As with the post-9/11 detainees, none of the call-in registrants was charged with a terrorist-related offense, providing further evidence that this initiative succeeded only in alienating immigrant communities, straining international relations, and diverting precious law enforcement resources from identifying people who intend to harm us. In December 2003, DHS wisely suspended certain re-registration requirements associated with the program, but left other components intact. The CLRA would terminate the NSEERS program in its entirety and provide relief from immigration consequences to some individuals who were placed in immigration proceedings due to this failed program.

• Instituting “reforms" that severely undermine due process rights for immigrants appearing before the BIA: Despite nearly universal agreement that our immigration system is replete with serious deficiencies, the Administration has begun dismantling the only review apparatus currently in place, the immigration appeals system. Through a series of regulations issued by Attorney General John Ashcroft, the BIAthe court of last resort for many immigrants fighting deportation-has been stripped of its ability to serve as a meaningful watchdog over the lower courts. Because the Executive Office for Immigration Review (which currently houses the immigration courts) is a regulatory creation, the Attorney General possesses virtually unfettered discretion to reconstitute the system in whatever way he deems appropriate. The "reforms" at issue include the following: reducing the overall number of judges sitting on the Board of Immigration Appeals from 23 to 11 by reassigning the 5 most "immigrant friendly" judges to other positions; making one-judge review of lower court decisions the norm as opposed to the traditional three-judge panels; expanding

dramatically the range of cases which can be affirmed without any opinion; and eliminating the Board's de novo review authority. (See AILA Issue Paper entitled “The Importance of Independence and Accountability in Our Immigration Courts".)

The results of this initiative have been stunning. A report commissioned by the American Bar Association (ABA) that evaluated the regulations determined that the increased speed in the decision-making process has had a significant impact on substantive outcomes: "decisions in favor of the respondents have decreased alarmingly from 1 in 4 to 1 in 10.” Not only did the regulations fail miserably from a fairness perspective, they also failed to achieve their stated purpose of improving efficiency. The United States Courts of Appeals have experienced a massive surge in BIA appeals, in volume and rate, since the regulations were implemented. Hence, the net effect of the Attorney General's streamlining measures has not been to eliminate the backlogs, but merely to shift the backlog to another branch of government, the federal courts. The CLRA would establish an independent immigration court system and establish, for the first time, explicit statutory parameters for its makeup and functions.

AILA'S POSITION: AILA strongly supports policies undertaken since 9/11 that truly promote our security (such as the Enhanced Border Security and Visa Entry Reform Act, P.L. 107-173 and the Intelligence Reform ACT GET PL NUMBER) However, the immigration-related provisions in the PATRIOT Act and The executive actions highlighted in my testimony do not enhance our security. What they have done is erode our constitutionally protected civil liberties. In thoughtful, measured fashion, the Civil Liberties Restoration Act (H.R. 1502) would rein in those policies that go too far in tilting the scales against individual rights and would reaffirm our Constitutional commitment to provide due process to all persons.

APPENDIX

Selected Executive Branch Actions since September 11, 2001

The following are selected administrative actions taken by the Executive Branch since September 11, 2001 listed in reverse chronological order. These actions:

curb rights and due process

undermine fundamental constitutional protections

profile certain communities based on race, religion, and ethnicity and target them for heightened measures

respond to various actions by the INS that have drawn criticism

December 2, 2003: Suspension of Certain NSEERS Requirements

The Department of Homeland Security (DHS) published an Interim Rule in the Federal Register announcing the suspension of certain re-registration requirements for individuals initially registered under the National Security Entry-Exit Registration System (NSEERS or "Special Registration"). Specifically, the Rule amends 8 CFR §§ 264.1(f)(3) and 264.1(f)(5), which required 30-day re-registration for those specially registered at a Port of Entry (POE) and annual re-registration for all individuals subject to Special Registration. Suspension of the re-registration requirements applies to all previously registered foreign nationals, whether under POE registration or "call-in" registration. All other requirements (including departure registration and POE registration) and the Special Registration program itself remain in effect. Anyone who fails to comply with the continuing requirements of Special Registration could be subjected to denial of admission to the U.S., denial of immigration benefits, possible criminal prosecution, and/or removal proceedings. [68 FR 67577, 12-2-03, Interim Rule]

· July 7, 2003: Personal Appearance Required for Visa Interviews DOS published an Interim Rule in the Federal Register, effective August 1, 2003, requiring applicants for visas to appear (in most cases) for a personal interview. The Department of State Cable sent to consular posts on May 22, in anticipation of the new regulation, warned of backlogs yet advised posts that they "must implement the new interview guidelines using existing resources. Post should not, repeat not, use overtime to deal with additional workload requirements but should develop appointment systems and public relations strategies to mitigate as much as possible the impact of these changes." [68 FR 40127, 7-7-03, Interim Rule]

As AILA noted in its comments on the Interim Rule, "In fiscal year 2002, 843 consular officers processed 8.3 million nonimmigrant visa applications. It is thought that in some posts as few as 20 percent of applicants were interviewed. The new.....policy will mean that about 90 percent of visa applicants will now be interviewed (thus generating, in some

posts, an increase in visa workload of up to 70 percent) without an attendant increase in the number of consular interviewers or other resources."

April 24, 2003: Matter of D-J

In a far-reaching precedent decision, the Attorney General denied undocumented immigrants recourse to an individualized bond hearing if immigration officials say their release would endanger national security interests. The national security interest identified by the Attorney General in this decision was the prevention of "further surges of mass migration...with attendant strains on national and homeland security resources."

The Attorney General issued this ruling in the case of an 18-year-old Haitian who arrived in the U.S. on October 29 with more than 200 other refugees and subsequently applied for asylum. The Attorney General's ruling overturns the decisions of both the Immigration Judge (IJ) and the Bureau of Immigration Appeals (BIA) to release the individual on bond pending the outcome of his asylum proceedings. Both the IJ and the BIA concluded that the individual did not present a flight risk or a danger to the community. By eliminating the possibility of release on bond for whole classes of people, this decision represents a significant departure from the well-established due process principle that every individual deserves a hearing to determine whether his or her liberty interest outweighs the government's interest in preventing flight and danger to society.

March 17, 2003: Operation Liberty Shield

Secretary Ridge issued a fact statement and press release discussing a new DHS initiative called Operation Liberty Shield. One component of this initiative requires that asylum applicants be detained for the duration of their processing period if they come from nations where al-Qaeda, al-Qaeda sympathizers, and other terrorist groups are known to have operated.

February 19, 2003: Additional Exit Ports Designated

DOJ published a Notice in the Federal Register providing the public with an expanded list of ports through which nonimmigrant aliens who have been specially registered may depart from the United States. There are now 99 authorized ports of departure for special registrants.

4

February 19, 2003: Special Registration Deadlines Extended for Groups 3 & DOJ published a Notice in the Federal Register extending the registration deadline for two groups of affected foreign nationals. Nonimmigrant aliens of Pakistan or Saudi Arabia who are required to register were given until March 21, 2003 to do so. Nonimmigrant aliens from Bangladesh, Egypt, Indonesia, Jordan, or Kuwait who are required to register are permitted to do so before April 25, 2003. [68 FR 8046, 2-19-03.

January 16, 2003: Call-In Special Registration Expanded

DOJ published a Notice in the Federal Register expanding the special registration program to foreign nationals from five additional countries. The Notice requires all nonimmigrant males aged 16 or over who are citizens or nationals of Bangladesh, Egypt, Indonesia, Jordan or Kuwait, and who entered on or before September 30, 2002, to appear for call-in registration between February 24, 2003 and March 28, 2003. [68FR 2363, 1-16-03, Notice]

January 16, 2003: Special Registration Deadlines Extended for Groups 1 & 2 DOJ published a Notice in the Federal Register reopening the registration periods to permit citizens or nationals of Afghanistan, Algeria, Bahrain, Eritrea, Iran, Iraq Lebanon, Libya, Morocco, North Korea, Oman, Qatar, Somalia, Sudan, Syria, Tunisia, United Arab Emirates, or Yemen who were required to register previously but did not do so, to appear and register with the INS between January 27, 2003, and February 7, 2003. The Notice indicates that registration during this extension period would be considered timely under the original notices.

December 18, 2002: Call-In Special Registration Expanded

DOJ published a Notice in the Federal Register expanding the special registration program to foreign nationals from two additional countries. The Notice requires all nonimmigrant males aged 16 or over who are citizens or nationals of Saudi Arabia or Pakistan and who entered on or before September 30, 2002, to appear for call-in registration between January 13, 2003 and February 21, 2003. This Notice also rescinds a December 16, 2002 Notice which erroneously included Armenia on the list of affected countries. [67 FR 77642, 12-18-02.-Notice]

December 18, 2002: Attorney General Secret Order Delegating Authority to
FBI to Exercise the Powers and Duties of Immigration Officers

The Attorney General issued an order authorizing the FBI Director and his delegates to perform the functions of immigration officers. Specifically, the order authorizes the FBI to investigate and detain aliens suspected of violating any immigration law or regulation and to enforce all immigration provisions, including those related to special registration. The actual text of this order has not been released by the Attorney General although its contents have been leaked to the press.

November 22, 2002: Call-In Special Registration Expanded

DOJ published a Notice in the Federal Register expanding the special registration call-in program to foreign nationals from 13 additional countries. The Notice requires all nonimmigrant males aged 16 or over who are citizens or nationals of Afghanistan, Algeria, Bahrain, Eritrea, Lebanon, Morocco, North Korea, Oman, Qatar, Somalia, Tunisia, United Arab Emirates, or Yemen and who entered on or before September 30, 2002, to appear for call-in registration between January 13, 2003 and February 21, 2003.