Alien Nation

In the midst of the Washington-area sniper attacks last fall, Montgomery County (Md.) Police Chief Charles Moose was forced to make an unusual televised appeal to immigrants. "Perhaps some of our immigrant community members feel like there would be some problem for them because of their status ... if they come forward," Moose said. "We hope that is not the case, but if that is the case, we want to stress that that is not our interest in this matter." He was responding to an incident the previous day in which two immigrants had been apprehended for questioning in the sniper case, cleared but then dumped in deportation proceedings. What was odd was that Moose had to make the appeal at all. It is a policy in local and state police departments across the country not to enforce civil-immigration law because they want immigrants to be forthcoming about crimes -- such as homicide. It is even the official legal opinion of the U.S. Department of Justice that local and state police do not have the inherent authority to enforce civil-immigration law. Or at least it was until Attorney General John Ashcroft started changing the law.

Since September 11, Ashcroft's office has issued a stream of executive actions that have made immigrants afraid to follow the law, undermined law-enforcement officials' abilities to perform their duties and done little to gather worthwhile intelligence. The Justice Department's strategy for fighting terrorism -- which has targeted the nation's 35 million-plus foreign visitors and estimated 8 million legal and illegal immigrants a year -- has been to throw everything at a wall and see what sticks. As the edicts have poured forth, they have left confusion in their wake, not to mention threatened unnecessary deportation for numerous foreigners. And with the new Department of Homeland Security acquiring some of the Justice Department's responsibilities, things are only likely to get worse.

Moose was dealing with a problem that various police officials have encountered since mid-spring. In April the public learned through a leaked report that the Justice Department had drafted an unofficial legal opinion granting local and state law officials "inherent authority" to enforce civil-immigration law. While a backlash from police departments across the country led Ashcroft to soften his stance, he simultaneously rehabilitated a registration law for foreign nationals that threw the jurisdiction of the local police into question. The rule requires foreign visitors -- students, business travelers and tourists -- from certain countries to be fingerprinted, photographed and interviewed, and to supply a variety of personal details, including credit-card numbers and e-mail addresses, when they enter the country. They must then re-register after 30 days. What has confused police is that Ashcroft decided that anyone who does not comply with the registration will not only be served a deportation notice, he or she will also be placed on the National Crime Information Center (NCIC) database, alongside murderers and rapists. Police routinely check anyone they stop against this database, which means an officer could end up turning over a foreigner for a paper violation. Law-enforcement officers, in other words, should be doing what they neither want nor have time to do: enforcing civil-immigration law.

The Justice Department insists that the law is clear and limited: Police can enforce civil-immigration law only in the case of a "mass influx of aliens" or when they enter into a special "memorandum of agreement" with the Immigration and Naturalization Service (INS). However, White House General Counsel Alberto Gonzalez seemed to contradict this when he wrote in late June that state and local police do have inherent authority to arrest those who have violated immigration law and whose names have been placed on the NCIC database. There is so much confusion about who has what authority that a group of lawyers and advocates, with the support of law enforcement, submitted a Freedom of Information Act request to get a copy of the Justice Department's most recent opinion on inherent authority. The department has not been forthcoming. "It's a bizarre situation," says Angela Kelley, deputy director at the National Immigration Forum. "The DOJ is not telling us what the law is and is not making it clear to the country whether the police have authority to do this."

Meanwhile, the registration law itself has created its own share of confusion among lawyers and has made foreigners afraid to comply. Known as the National Security Entry-Exit Registration System, the special registration was initially limited to visitors from five countries -- Syria, Libya, Iraq, Iran and Sudan -- but quickly expanded to 26 countries. This expansion has not happened smoothly. The Justice Department has not kept the INS staff well-informed about changes as they happen, creating new wrinkles as the overworked service tries to smooth out old ones -- such as whether nationality is determined by citizenship, passport or place of birth. Luke Hall, a legal assistant with the American Immigration Law Fund, has collected reports from around the country of lawyers complaining about lack of uniform standards and general administrative confusion. "Many INS workers don't seem to be familiar with the process," says Hall.

The Justice Department also hasn't done an effective job of keeping the public up-to-date about changes in the law, which occur on a monthly basis. Immigrants haven't known whether they had to register or not. And various foreigners with clean records who did comply with the requirement ended up in deportation proceedings. "The policy stinks," says immigration attorney David Leopold. "The rule is so technically complex that it's difficult for attorneys to get it straight, let alone some noncitizen who may not have English as a first language."

In spite of the chaos, the Justice Department plans to rapidly expand the registration program. "This part is what we like to think of as a first phase," says department spokesman Jorge Martinez. "No country is exempt from this program." Already individuals from more than 112 countries have been registered, and an INS document notes that the "INS is required, within three years, to track all of the estimated 35 million foreign visitors, students, business travelers, and tourists who enter and leave" the United States each year. What the Justice Department has not explained is how this system of mass surveillance will serve any useful function, seeing as it's difficult to verify a person's information once he or she is in the country. According to a person with knowledge of Justice Department operations, Ashcroft had originally planned to have every foreign national appear in person for re-registry -- until the INS calculated that this would cost an additional $1 billion, not to mention require a massive expansion of the bureaucracy.

Not that the department has been shy about creating other forms of unnecessary busywork that generate useless information. Ashcroft also resurrected a law that had fallen into disuse requiring immigrants to notify the INS within 10 days of a change of address. The law hadn't been enforced because it created too much paperwork. Predictably, within six weeks of announcing the change, the understaffed INS was swamped with 870,000 registration forms, and many more arrive each day. The information was such a burden that the INS had to outsource some of the processing to a private company. Many forms were simply sent to a warehouse, leaving immigrants in fear that they might be deported even though they had followed the law.

To top it all off, even if the information can be processed, there is no way to verify that it is correct without undertaking the Herculean task of following up each of the hundreds of thousands of filings in person. "You want good information, not more information," says Judy Golub of the American Immigration Lawyers Association. With Homeland Security planning to split the INS in half and put the parts under two different directors, Golub echoes the concerns of many that things will only get more confusing. "You need one person in charge with clout [and] coordination of separated functions," Golub says. "We fear the lack of coordination." If immigration officials were already demoralized by inadequate pay, overtime and crosscutting regulations, this is the icing on the cake.

Doris Meissner, who headed the INS under President Clinton, has followed Ashcroft's actions since 9-11 and found incoherent politically motivated gestures throughout. "Some of these things have been grab-bag edicts, so I'm somewhat skeptical whether there is a bigger strategy," she says. It's easy to issue fiat after fiat, deport a few foreigners and look tough on terrorism. Of course, while none of these moves has had any measurable effect on terrorism, they have effectively concealed the administration's own blundering. As Patricia Mattos, regional chair for the American Immigration Lawyers Association, points out, this does little "other than give an illusion, and that's probably more dangerous than anything." The public has tolerated sweeping infringements of civil liberties that extend far beyond immigrants. Perhaps it's time someone pointed out to the administration that there's more to life than the false promise of total security.