Civil Liberties Update

Civil Liberties Update
From National Immigration Forum
October 8, 2004

From: Shoba Sivaprasad, Esq.
Senior Policy Associate
National Immigration Forum
e-mail: ssivaprasad [at] immigrationforum.org
tel: (202)-347-0047

1) DHS Civil Rights and Civil Liberties: Legislative Update
2) ICE Says Special Registration Not Over
3) DHS and FBI Launch “October Plan�
________________________________________________________________
1) DHS Civil Rights and Civil Liberties: Legislative Update
House: Some good news! As you may know, we expected Rep. Bennie Thompson
(D-MS) to introduce the House version of S. 2536 as an amendment to the DHS
authorization bill last July. Unfortunately, markup of this bill was stalled
indefinitely. On September 29, Rep. Thompson (MS-2), along with Reps. Turner (TX-2),
Christensen (VI), Jackson-Lee (TX-18), McCarthy (MO-5), Meek (FL-17), and
Norton (DC) introduced the Homeland Security Civil Rights and Civil Liberties
Protection Act of 2004. It has been referred to both the Homeland Security
Committee and the Judiciary Committee. The bill number is H.R. 5182.
Materials on the House Bill: Please e-mail me
(ssivaprasad [at] immigrationforum.org) if you would like to see the bill text, bill summary, or a letter by
advocates in support of the Thompson bill. Talking points on the bill can be found
at:
http://www.immigrationforum.org/DesktopDefault.aspx?tabid=621

Senate: As you know, S. 2536 was introduced by Senators Susan Collins (R-ME),
Chair of the Governmental Affairs Committee (GAC) and Ron Wyden (D-OR) last
June. The hearing/markup on this bill was held in the GAC and passed
unanimously. The bill passed with one positive amendment – this amendment captures
suggestions we made to Collins’s and Wyden’s staff after the bill was introduced
last June. Specifically, the amendment 1) clarifies that the officer for civil
right and civil liberties (OCRCL) is appointed by the President [currently,
the Homeland Security Act (HSA) has the officer appointed by 2 different people—
this is most likely a statutory oversight]; 2) specifies religion as a
prohibited basis for profiling (currently, HSA talks only about racial and ethnic
profiling); and 3) expands the OCRCL’s authority to review and assess abuse
(currently, the HSA limits the OCRCL’s “review and assess� authority to “
allegations� of abuse). The bill was placed on the Senate legislative calendar on
September 20.

Materials on the Senate Bill:
http://www.immigrationforum.org/DesktopDefault.aspx?tabid=620
____________________________________________________________
2) ICE Says Special Registration Not Over

Last December, DHS announced (by interim rule) that it would suspend the
30-day and annual interview requirements related to special registration (a.k.a.
NSEERS). The most controversial part of this program called men from
predominantly Muslim and Arab countries to immigration offices around the country for
fingerprints, photographs and lengthy questioning by officers. Since the
December announcement, immigration advocates, religious leaders and pro bono lawyers
have worked to educate communities about the continuing requirements of NSEERS
and the consequences of not registering. Unfortunately, these efforts have
been overshadowed by uninformed local DHS officials, inaccurate press accounts,
and public speeches by DHS leaders, all testifying that special registration
is over, or soon will be. (See ‘�Civil Liberties Update� 7/9/2004). Remarkable
are the inconsistencies among DHS officials about what remains of NSEERS.
Equally troubling is the absence of outreach and education by these officials to
the community of the ongoing requirements of special registration, and the
inability of the government to convincingly articulate how and why special
registration should exist at all. Scores of government officials, Members of
Congress, and counter terrorism experts have concluded that special registration (in
particular “call-in� registration) failed to make the nation safer and wasted
precious government resources. Instead, thousands of registrants were served
with deportation papers, driven underground, or voluntarily left for Canada
out of fear. Special registration undermined basic principles like equal
treatment under the law.

Advocates continue to engage Members of Congress and officials in DHS about
continuing concerns with special registration. Last month, advocates met with
ICE Head Michael Garcia and his staff to discuss enforcement issues, including
special registration. ICE stated that special registration will not end in the
“foreseeable� future and in fact, confirmed that ICE conducts about two
in-person special registration interviews per week. I have excerpted below the
meeting notes on special registration. Thank you to Christina DeConcini from
CLINIC for circulating these notes.

“7-9. Issue: NSEERS

Ms. Williams commented on the continued confusion regarding the remaining
regulations and requirements of portions of the NSEERS program. She indicated
that at various points there had been some talk about ending NSEERS, and
inquired if there was a plan to cease the program in the near future. Furthermore,
ICE officers in several areas of the country had stated that the NSEERS program
was over when individuals inquired about registration requirements.

Response: Mr. Garcia stated that the program would not be terminated in the
foreseeable future. He said that he would issue a memo to ICE District Offices
stating this fact if NGO Groups believed it to be necessary.

Ms. Williams stated that a number of people remained who were not registered
during the NSEERS call-in program; usually either because they were not aware
of the program or had reason to believe that the requirement did not apply to
them. She indicated that AILA and other NGOs had encountered USCIS stating
that it would deny benefits if people could not prove they registered. Ms.
Williams inquired what late registration procedures were available and what
instructions had been given to the field on this subject. Since proof of
registration is required for benefits, a mechanism for people to obtain evidence of
registration was necessary.

DHS officials were directed to what NGO groups had found to be the current
treatment of individuals in New York subject to special registration who failed
to register and who subsequently become eligible for immigration benefits such
as adjustment of status:

1. USCIS processes the benefits application and notes if there appears
to be an NSEERS registration issue, such as the person failing to comply.
2. USCIS then forwards this information to ICE and sends the applicant a
notice instructing them to appear at the local ICE office on a Tuesday or
Thursday.
3. At this appointment, at which the applicant may be represented by
counsel, an ICE officer will talk with the applicant, review the applicant's
file, and look at additional evidence submitted by applicant to determine whether
the failure to register was willful/unwillful and/or reasonably excusable.
4. If the failure is deemed unwillful and/or reasonably excused, the ICE
officer will provide notice to the applicant of this determination, which the
applicant then brings to his adjustment interview.
5. If the failure is deemed willful and/or not reasonably excused, the
applicant may be referred to proceedings.
6. The ICE officer may exercise discretion in assessing the totality of
facts in determining whether failure is excusable and/or whether the person
should be referred to proceedings.

Ms. Williams inquired whether this procedure was a Standard Operational
Procedure (SOP) that was uniform nationally, or if variety existed across district
offices. She requested information regarding the standards of review for
individuals at the Port of Entry versus call-in registrants and what a probable
timeline would be for an ICE review. The NGO Groups stated that, if it had not
yet been issued, it would be helpful for DHS to issue updated guidance on the
exercise of discretion and determining willfulness and reasonableness and share
this guidance with the NGO Group.

Response: Mr. Schoch stated that there was an internal SOP with USCIS
regarding benefits for NSEERS applicants. He indicated that it might be time for a
refresher memo to be issued regarding these procedures and the continued
existence of the NSEERS program. Mr. Schoch explained that ICE had seen an
average of two people a week for walk-in registration.

Mr. Schoch clarified that NSEERS requirements did not apply to individuals
who CBP did not register in the NSEERS program at the port of entry, as it had
been determined by CBP that registration was not a condition of admission for
these individuals.�
______________________________________________________________________
3) FBI and DHS Launch “October Plan�

The “October Plan� is an initiative launched by DHS and FBI that purportedly
interviews community members in order to “thwart� potential terrorist plots
that would disrupt the November elections. While DHS’s Immigration and Customs
Enforcement has said that the initiative will not select individuals based on
race or religion, there is a real fear by rights groups and communities that
the interviews will target Arabs and Muslims. See related articles below.

***
Orlando-Sentinel, “FBI Plans Interviews with Arab Americans�, October 8,
2004
The aim is to uncover pre-election plots, but many balk at the tactic, By
Pedro Ruz Gutierrez and Henry Pierson Curtis

Still upset about past scrutiny, Arab-Americans and Muslims in Central
Florida are questioning the FBI's latest plan to interview community members as part
of a broad initiative to uncover possible terrorist plots before the
presidential elections.

For the past week, FBI and state agents have held meetings across Florida
with community leaders to explain a mandate from Washington to seek fresh
interviews about suspicious activity. Similar events are taking place across the
country, part of a nationwide effort to glean information that might foil a
possible plot by al-Qaeda to disrupt the Nov. 2 vote.

Although Arab-American community leaders said they understand the need for
vigilance and support efforts to root out terrorists, they raised questions
Wednesday about the FBI-led plan.

"Our community is already afraid and jittery, because there has already been
several rounds of detainees and interviews since 9-11," said Ahmed Bedier, a
Tampa-based spokesman for the Council on American-Islamic Relations, a
Washington civil-rights group.

Bedier said the questions, which according to FBI officials number about a
dozen, also come at a sensitive time -- only days before Islam's holy month of
Ramadan.

"I informed them that during the month of Ramadan, all Muslims look
suspicious and their days are turned upside down," Bedier said of two recent meetings
with the FBI in Tampa. "They get up early in the morning. There's heavy traffic
at the mosques. Someone not aware could misinterpret their actions."

Other local leaders echo Bedier's sentiments. But they also say they sense
political overtones in the law-enforcement agencies' actions.

Among some of the questions agents intend to ask is whether they know anyone
critical of the domestic war on terrorism or whether they have heard any
anti-U.S. propaganda, according to people who attended a meeting with FBI and state
agents.

"In this day and age, I hardly know anybody anywhere who doesn't have
anti-government opinions, but that's the essence of democracy and the Constitution,"
said Mark NeJame, a criminal-defense attorney who has been asked to speak
about relations with the Arab-American community at an Oct. 25 FBI conference in
Texas.

Others who attended one of the recent meetings said they raised objections to
the questions.

"Arab-Americans will do everything in their capacity to ensure the security
of this country," said Taleb Salhab, president of the Arab-American Community
Center of Central Florida. "However, we will not tolerate the violation of our
community's constitutional rights."

Salhab was one of eight Arab and Muslim Americans who met Monday with Carl
Whitehead, head of the Tampa FBI division that oversees the Orlando office, and
four other high-ranking FBI and state agents.

"The timing is questionable," said Salhab, who also serves as coordinator of
the nonpartisan Florida's Arab American Leadership Council. "However, we look
forward to engaging the FBI and other agencies on how best to proceed to
ensure that our community will not be profiled and that their civil rights will be
protected."

Government officials have said the questioning is not in response to any
specific threat and is not targeted at any ethnic group. But they have pointed to
the March 11 train bombings in Madrid, Spain -- which came days before a
general election -- as a possible scenario.

"We have done this before, and we're going to have to do this as many times
before in order to prevent a terrorist attack," said Sara Oates, an FBI
spokeswoman in Tampa.

Federal and state agents have said they developed solid leads after
questioning Middle Easterners at least twice before -- shortly after Sept. 11, 2001,
and weeks before the United States invaded Iraq last year.

Oates said the FBI is not limiting interviews to Arabs and Muslims. For
example, she said, agents plan to question owners who may store chemicals or
explosive materials or operate rental businesses.

"The intent is not to influence the elections," Oates said. "It's to keep the
nation under the democratic process. Our interest is to make sure that we
don't have an incident because of not getting some information and not being able
to prevent an attack." Information about Monday's meeting at the University
of Central Florida's downtown campus quickly spread this week among Central
Florida's Arab-Americans. It bothered some who think they are being singled out
once again.

"Why just our community?," asked Sami Qubty, past president of the
Arab-American Community Center. "I mean, Timothy McVeigh, I don't think he was Arab. Or
Ted Kaczynski, the Unabomber, they were not Arabs. It's just strictly
profiling."

One of the government agents at the meeting said that previous questioning of
Arabs, both Muslims and Christians, had created a backlash when a number were
deported for immigration violations, according to one of the attendees.

"Thousands and thousands of people have been sent back," NeJame said. "So,
what kind of incentive is there for anybody to talk to the government, knowing
that when they do, it could cause complete destruction of the family unit?"

Pedro Ruz Gutierrez can be reached at pruz [at] orlandosentinel.com or
407-420-5620. Henry Pierson Curtis can be reached at hcurtis [at] orlandosentinel.com or
407-420-5257.
***

Knight Ridder Newspapers, “Muslims in Carolina Feel Targeted�, October 8,
2004 http://www.thestate.com/mld/thestate/9864782.htm

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