Executive Branch Actions

EXECUTIVE BRANCH ACTIONS

Prepared by Jeanne A. Butterfield
American Immigration Lawyers Association

The following are administrative actions taken by the Executive Branch since 9-11. These actions:

curb rights and due process
undermine fundamental constitutional protections
profile certain communities and target them for heightened measures
respond to various actions by the INS that have drawn criticism

September 20, 2001: Detention without Charges
The Department of Justice publishes an interim regulation allowing detention without charges for 48 hours or "an additional reasonable period of time" in the event of an "emergency or other extraordinary circumstance". The rule is made effective 9-17-01, three days prior to publication. Comments were due 11-19-01. [66 FR 183 at 48334, 9-20-01]
September 21, 2001: Closed Hearings
Chief Immigration Judge Michael Creppy issues a memo stating: "the Attorney General has implemented additional security procedures for certain cases in the Immigration Court". Creppy further states that these procedures "require" IJs to "close the hearing to the public…". [Creppy Memo, 9-21-01, 12:20 PM]
October 4, 2001: FBI "mosaic" Memo, Opposing Bond
The FBI begins to use a boilerplate memo to oppose bond in all post-9-11 cases. The memo states:
October 31, 2001: Automatic Stays of Bond Decisions
DOJ issues an interim regulation that provides an automatic stay of IJ bond decisions wherever DD has ordered no bond or has set a bond of $10K or more. The rule is made effective 10-29-02, two days prior to publication. Comments were due 12-31-01. [66 FR 211, at 54909, 10-31-01]
October 31, 2001: Eavesdropping on Attorney/Client Conversations
DOJ issues a Bureau of Prisons interim regulation that allows eavesdropping on attorney/client conversations wherever there is "reasonable suspicion…to believe that a particular inmate may use communications with attorneys to further or facilitate acts of terrorism"; the regulation requires written notice to the inmate and attorney, "except in the case of prior court authorization". The rule is made effective 10-31-01. Comments were due 12-31-01. [66 FR 211, at 55062, 10-31-01]
October 31, 2001: New Terrorist Groups Designated
The Attorney General issues a letter requesting that the Secretary of State designate 46 new groups as terrorist organizations, per powers authorized by USA Patriot Act (9 groups identified in President's Executive Order of 9-23-02; 6 groups identified in joint State-Treasury designation of 10-12-02, and 31 groups designated by DOS Patterns of Global Terrorism Report, published April 2001). [Letter from Attorney General to Colin L. Powell with attachment]
November 7, 2001: Creation of Foreign Terrorist Tracking Task Force
The President announces the first formal meeting of the full Homeland Security Council, and the creation of a "Foreign Terrorist Tracking Task Force" which will deny entry, locate, detain, prosecute and deport anyone suspected of terrorist activity The Task Force includes DOS, FBI, INS, Secret Service, Customs and the intelligence community. Mandates a thorough review of student visa policies. [White House Announcement, 11-07-01]
November 9, 2001: Interviews of Arab/Muslim Men
The Attorney General issues a memo directing interviews of a list of 5000 men, ages 18-33, who entered US since Jan. 2000 and who came from countries where Al Queda has a "terrorist presence or activity". The interviews are to be "voluntary" but immigration status questions may be asked (see Pearson memo, Nov. 23).
November 13, 2001: Military Tribunals

President Bush issues an Executive Order authorizing creation of military tribunals to try non-citizens alleged to be involved in international terrorism http://www.whitehouse.gov/news/orders/.
November 15, 2001: New 20-Day Wait for Certain Visa Applicants
The State Department imposes new security checks on visa applicants from unnamed countries. The State Department refuses to confirm the new requirement, but the following message appears when individuals born in certain countries attempt to make a visa appointment through the on-line Visa Appointment Reservation System:
The following countries of birth are among those for whom this message appears: Afghanistan, Algeria, Bahrain, Dijbouti, Egypt, Eritrea, Indonesia, Iran, Iraq, Jordan, Kuwait, Lebanon, Libya, Malaysia, Morocco, Oman, Pakistan, Qatar, Saudi Arabia, Somalia, Sudan, Syria, Tunisia, United Arab Emirates, Yemen.
November 16, 2001: Secrecy re INS Detainees
The Department of Justice issues a letter to Senator Feingold asserting that identities/locations of 9-11 detainees will not be disclosed. [U.S. Department of Justice, Office of Legislative Affairs, to Senator Russell D. Feingold, dated 11-16-01]
November 23, 2001: INS Actions re Interviewees

INS issues memo stating that "officers conducting these interviews may discover information which leads them to suspect that specific aliens on the list are unlawfully present or in violation of their immigration status." The memo directs INS to provide agents to respond to requests from state and local officers involved in the interviews. [Memorandum for Regional directors, from Michael A. Pearson, INS Executive Associate Commissioner, Office of Field Operations, dated 10-23-01]
November 26, 2001: Interviews to be "voluntary"
US Attorneys in Detroit issue a letter stating that the interviews are voluntary, but that "we need to hear from you by December 4." [Letter from U.S. Attorney, Eastern District of Michigan, signed by Jeffrey Collins and Robert Cares, dated 11-26-01]
November 29, 2001: "Snitch Visas"
The Attorney General issues a memo announcing the use of S visas for those who provide information relating to terrorists. [Attorney General Directive on Cooperators Program, 10-29-01]
December 4, 2001: Senate Hearings
Senator Feingold holds hearings on the status of 9-11 detainees. The Attorney General states that those who question his policies are "aiding and abetting terrorism" Click here for citation
January 25, 2002: "Absconder Initiative"
The Deputy Attorney General issues a memo of instructions for the "Absconder Apprehension Initiative", announced by INS Commissioner Ziglar in December, to locate 314,000 people who have a final deportation or removal order against them. 6,000 men from "al Qaeda-harboring countries will be first to be entered in the National Crime Information Center (NCIC) database. DOJ uses country, age, and gender criteria to prioritize this selective enforcement list. [Office of Deputy Attorney General, Subject: Guidance for Absconder Apprehension Initiative, dated 1-25-02]
February 19, 2002: BIA "Reforms"
The Attorney General publishes a new regulation proposing to restructure the Board of Immigration Appeals. The BIA "reform" would institute one-judge review, streamline procedures, and reduce the Board itself to 11 members (from the current complement of 21 positions.) Comments were due 3-21-02. [67 FR 33 at 7309, 2-19-02]
February 26, 2002: Interview Report
The Department of Justice issues a final report on its project of interviewing the 5,000 Arab/Muslim men. The Report states that approximately half (2261) of those on the list were actually interviewed and that fewer than twenty interview subjects were taken into custody. Most of these were charged with immigration violations; only three were arrested on criminal charges. [Report from U.S. Department of Justice, Executive Office for U.S. Attorneys, Memorandum for the Attorney General, from Kenneth L. Wainstein, Director, entitled "Final Report on Interview Project, dated 2-26-02]
March 19, 2002: Additional Interviews
DOJ announces another round of interviews of 3000 Arab/Muslim men Memorandum from U.S. Department of Justice, Executive Office for U.S. Attorneys, TO: All US Attorneys, from Kenneth L. Wainstein, Director, entitled "Interview Report", dated 3-19-02.
2002: Local Law Enforcement Powers

News of a new DOJ legal opinion that states that local law enforcement personnel have "inherent" power to enforce the nation's immigration laws is leaked to the press. ious news reports]
2, 2002: New Limitations on Visitors/Students

INS issues a proposed regulation establishing a presumptive limitation on visitors to the US of 30 days, or a "fair and reasonable period" to accomplish the purpose of the visit. The regulation also prohibits a change of status from visitor to student, unless student intent is declared at time of initial entry. Comments were due 5-13-02. 67 FR 71 at 18065, 4-12-02]
April 2002: New Limitations on Student Change of Status
INS issues an interim rule prohibiting a visitor from attending school while an application for a change to student status is pending. The rule is made effective 4-12-02. Comments were due 6-11-02. [67 FR 71 at 18062, 4-12-02]
April 22, 2002: States Forbidden to Release Detainee Information
The Attorney General issues an interim regulation that forbids any state or county jail from releasing information about INS detainees housed in their facilities. This regulation flies in the face of a New Jersey state court decision ordering the release of information regarding detainees in New Jersey facilities. The rule is made effective 4-17-02, a week prior to publication. Comments due 6-21-02. [67 FR 19508, 4-22-02]
May 9, 2002: Aliens Ordered to Surrender within 30 days
The Attorney General issues a proposed regulation that requires that noncitizens subject to final orders of removal surrender to INS within 30 days of the final order or be barred forever from any discretionary relief from deportation, including asylum relief, while he/she remains in the U.S. or for 10 years after departing from the U.S. Comments were due 6-10-02. [67 FR 90 at 31157, 5-9-02]
May 10, 2002: New Security Checks Required
The INS issues a memo requiring District Offices and Service Centers to run IBIS (Interagency Border Inspection System) security checks for all applications and petitions, including naturalization. The checks are to be run not only on foreign nationals, but also on every name on the application, including US citizen petitioners and attorneys. IBIS includes information on "suspect" individuals and can also be used to access NCIC records. It is used by INS, Customs, and 20 other federal agencies (FBI, Interpol, DEA, ATF, IRS, Coast Guard, FAA, Secret Service, etc.) [INS Memorandum from William Yates to Regional Directors, Service Center Directors, and District Directors, 5-10-02]
May 16, 2002: Student Reporting Required
The Attorney General issues a proposed regulation that implements a new student reporting system, SEVIS. The system will become voluntary on July 1, 2002, and mandatory for all covered school on 1-30-03. The new SEVIS system will require reporting of student enrollment, start date of next term, failure to enroll, dropping below full course load, disciplinary action by school, early graduation, etc. Comments were due 6-17-02. [67 FR 95 at 34862, 5-16-02]
May 28, 2002: Immigration Judges Given Authority to Seal Records and Issue Protective Orders
The Attorney General issues an interim regulation authorizing immigration judges to issue protective orders and seal records relating to law enforcement or national security information. The rule applies in all immigration proceedings before EOIR. The rule is made effective as of May 21, 2002, a week prior to publication. Comments were due 7-29-02. [67 FR 102 at 36799, 5-28-02]
July 24, 2002: Powers of State or Local Law Enforcement Officers To Exercise Federal Immigration Enforcement [Final Rule]
The Department of Justice has issued a final rule which implements INA 103(a)(8), which allows the Attorney General to authorize any state or local law enforcement officer, with the consent of the head of the department whose geographic boundary the officer is serving, to exercise and enforce immigration laws during the period of a declared "mass influx of aliens."

The rules authorize the Attorney General to consider the definitions of "immigration emergency" and "other circumstances" under 28 C.F.R. 65.81 when making a declaration of "mass influx of aliens". The rules purport that civil liberties and civil rights will be protected with officer training, and a complaint reporting procedure. The final rule is effective August 23, 2002. [67 FR 142 at 48354, 07-24-02]
July 26, 2002:Address Notification to be Filed with Designated Applications
The Attorney General proposed a rule clarifying the nonimmigrant's obligation to provide an address to the Service, including a change of address within 10 days. The rule will require every nonimmigrant to acknowledge having received notice that he or she is obliged to provide a valid address to the Service. The rules clarify that a "willful" failure to register with the INS, or a failure to give written notice of a change in address, is a criminal violation. This proposed regulation is accompanied by a statement by Department of Justice.

The proposed regulations will allow the Service to mail a "Notice to Appear" to the most recent address reported by the nonimmigrant. Upon such mailing, the Service will have met its burden of the "advanced notice" a nonimmigrant must receive before an Immigration Judge issues an in absentia order of removal. See, Matter of G-Y-R. This expanded definition of "notice" increases the likelihood for in absentia orders to be issued against non-criminal aliens who fail to report an address change.

The stated intent of this rule is to provide clear notice to nonimmigrants of their obligation to report their address, and to punish those who fail to do so. Comments due 8-26-02. [67 FR 144 at 48818, 7-26-02]
August 12, 2002: Registration and Monitoring of Certain Nonimmigrants
The Attorney General issues a final rule requiring certain noncitizens to register (fingerprints and photographs and other information) at entry, at 30 days after entry, at one-year intervals thereafter, and at exit, which must be through designated exit points.

Failure to satisfy any of the required reporting results in criminal penalties, and in the entering of the person's name in the NCIC database. The regulation is accompanied by a statement by the Attorney General indicating that local law enforcement officers will be requested to check the names of any persons they encounter against the NCIC data base, and arrest and detain not only those who have violated the registration requirement, but also those who have overstayed a visa whose names will also be entered into the database.

The new registration requirements are effective September 11, 2002, and will apply to nationals from Afghanistan, Algeria, Bahrain, Dijbouti, Egypt, Eritrea, Indonesia, Iran, Iraq, Jordan, Kuwait, Lebanon, Libya, Malaysia, Morocco, Oman, Pakistan, Qatar, Saudi Arabia, Somalia, Sudan, Syria, Tunisia, United Arab Emirates, Yemen. [67 FR 155 at 52583, 8-12-02]; The proposed rule appeared in the 6-13-02 federal register [67 FR 114 at 40581]. Comments on the proposed rule were due 7-15-02. The final rule is effective 9-11-02 [67 FR 173 at 57032]

Updated 09/09/02