* Associate Professor of Law, State University of New York at Buffalo. The author gratefully acknowledges Daniel Kanstroom for the invitation to participate in the symposium. The author would also like to thank her colleagues at the State University of New York at Buffalo, especially Karen L. Spencer, Archives and Special Collections Librarian, and Joseph L. Gerken, Reference Librarian, for their support in the researching of this article; Giovanna Macri, Esq., Adjunct Instructor for her expertise in both immigration law and criminal punishment; and Johanna Oreskovic, Director of Post-Professional Education, for her inspiration at the Eleventh Hour. The author is grateful for excellent research assistance from Catherine M. Brown and Brooke A. Kirkland. Lastly, the author would like to thank the many scholars—some of whom are directly referenced in this article—and practitioners whose commitment to either immigration law or criminal law and punishment brings them into a common arena of law and policy as crime control continues to heavily influence the direction of immigration law.
1 See Daniel Kanstroom, Criminalizing the Undocumented: Ironic Boundaries of the Post-September 11th “Pale of Law,” 29 N.C. J. Int’l L. & Com. Reg. 639, 660, 661 (2004) (asserting that traditional distinctions between citizens and noncitizens, as well as between civil regulation and criminal law enforcement are increasingly inadequate to account for post-September 11 law enforcement, and that “slippage” between the categories greatly expands federal law enforcement authority and subjects millions of noncitizens, especially undocumented workers, to criminal punishment) [hereinafter Kanstroom, Criminalizing the Undocumented]. This Article analyzes post-September 11 line-drawing as well, but focuses on the effect of citizen/noncitizen and civil/criminal lines on criminal aliens. In contrast to Kanstroom’s study of the criminalization of the undocumented, this Article examines how criminals—traditionally criminal aliens, but now illegal aliens as well—are being “managed” through the blurring of distinctions between aliens, criminals and terrorists.
2See, e.g., Anti-Drug Abuse Act of 1986 � 1002, 21 U.S.C. � 841(b)(1) (2000) (establishing drug quantity-based mandatory minimum sentences for drug crimes); Sentencing Reform Act of 1984, 18 U.S.C. �� 3551–3586 (2000) (reducing judicial discretion in the sentencing process); Omnibus Anti-Drug Abuse Act of 1988 (ADAA), Pub. L. No 100–690, �� 7342–7349, 102 Stat. 4181, 4469–73 (1988) (codified as amended in scattered sections of 8 U.S.C.) (authorizing the eviction of public housing tenants and their household members and guests who have been arrested for engaging in drug-related or other criminal activity).
3 See, e.g., Immigration Act of 1990 (IMMACT), Pub. L. No. 101–649, � 501, 104 Stat. 4978, 5048 (codified as amended at 8 U.S.C. � 1101(a)(43)); Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) � 441, 8 U.S.C. � 1326 (2000); Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) � 303, 8 U.S.C. � 1226 (2000); ADAA �� 7342–7349.
4 Before 1996, a number of mitigating circumstances were available to “criminal aliens.” Immigration and Nationality Act (INA) � 244, 8 U.S.C. � 1254(a)(1), (2) (1994), repealed by IIRIRA � 304, 8 U.S.C. � 1226 (2000) (allowing aliens to apply for suspension of deportation by demonstrating that deportation would result in “extreme hardship”); INA � 212(h), 8 U.S.C. � 1182(h) (1994), amended by IIRIRA � 348, 8 U.S.C. � 1182(h) (2000) (allowing certain aliens who have been convicted of crimes of moral turpitude to waive deportation by showing “extreme hardship”); INA � 212(c), 8 U.S.C. � 1182(c) (2000), repealed by IIRIRA � 304, 8 U.S.C. 1226 (2000) (demonstrating social and humane considerations such as family ties allowed for waiver of deportation). The foundational immigration cases defining deportation as regulatory, and thereby distinguishing deportation from punishment include Fong Yue Ting v. United States, 149 U.S. 698, 670 (1893); Chae Chan Ping v. United States (the Chinese Exclusion Case), 130 U.S. 581, 605–06 (1889); and Harisiades v. Shaughnessy, 342 U.S. 580, 594–95 (1952). See generally Mary M. Cheh, Constitutional Limits on Using Civil Remedies To Achieve Criminal Law Objectives: Understanding and Transcending the Criminal-Civil Law Distinction, 42 Hastings L.J. 1325, 1343–44 (1991) (“The Court has approved such regulatory measures as . . . detention of resident aliens pending deportation proceedings.”)
4 See United States v. Yacoubian, 24 F.3d 1, 10 (9th Cir. 1994) (dismissing an ex post facto challenge to deportation because the ex post facto clause is only applicable to “criminal laws”); Fayemi v. Bureau of Immigration and Custom Enforcement, No. CV-04-1935, 2004 WL 1161532, at *1–2, 4 (E.D.N.Y. May 24, 2004) (dismissing Eighth Amendment challenge to deportation of Nigerian national with aggravated felony conviction on the basis that deportation is not punishment, but a civil, regulatory procedure); Lovell v. INS, No. 01 CV 2295, 2003 WL 22282176, at *7 (E.D.N.Y. May 21, 2003) (dismissing Eighth Amendment challenge to denial of relief from removal on the basis that deportation is not punishment); Saaka v. Reno, No. 95C 3297, 1995 WL 765281, at *2 (N.D. Ill. Dec. 26, 1995) (dismissing double jeopardy and ex post facto clause challenges to deportation and detention of aggravated felon on the ground that deportation is not punishment).
5 See Jonathan Simon, Sanctioning Government: Explaining America’s Severity Revolution, 56 U. Miami L. Rev. 217, 218–19 (2001). The severity revolution is a term coined by law professor Joseph Kennedy to describe a dramatic break in the mid-1970s with a relatively stable set of values and objectives that had endured within the field of criminal punishment for two centuries. Id. In contrast to the values of the “humanity revolution,” the continuing severity revolution “openly espouse[s] severity of punishment as an overarching good” and “abandon[s] the long tradition of minimizing pain and cruelty in the penal process”; it has produced incarceration rates “roughly five times their norm for the first three quarters of the twentieth century, and more than three times the next closest level among advanced liberal societies.” Id. at 219.
6 See, e.g., Laura S. Adams, Divergence and the Dynamic Relationship Between Domestic and Immigration Law and International Human Rights, 51 Emory L.J. 983, 983 (2002); Bill Ong Hing, The Immigrant as Criminal: Punishing Dreamers, 9 Hastings Women’s L.J. 79, 80–81 (1998); Maria Isabel Medina, The Criminalization of Immigration Law: Employer Sanctions and Marriage Fraud, 5 Geo. Mason L. Rev. 669, 671 (1997); Helen Morris, Zero Tolerance: The Increasing Criminalization of Immigration Law, 74 Interpreter Releases 1317, 1317 (Aug. 29, 1997).
7 See, e.g., Daniel Kanstroom, Deportation, Social Control and Punishment: Some Thoughts About Why Hard Laws Make Bad Cases, 113 Harv. L. Rev. 1889, 1891 (2000) [hereinafter Kanstroom, Deportation, Social Control, and Punishment].
8 Detention no longer does justice to the circumstances or conditions of confinement, so I use the word incarceration interchangeably.
9 This Article uses the terms “deportation” and “removal” interchangeably. The 1996 immigration legislation introduces the term “removal,” but “removal” does not convey the experience of what is effectively banishment with no prospect of legal reentry for an extended period of time.
10 See ADAA � 7342, 8 U.S.C. � 1101(a)(43) (Supp. 1990) (defining “aggravated felon” to include crimes such as murder and drug trafficking); IMMACT � 501, 8 U.S.C. � 1101(a)(43) (1994) (amending the definition of “aggravated felon” to include violent offences that could impose a five-year penalty); IIRIRA � 321, 8 U.S.C. � 1101(a)(43) (2000) (lowering the amount of time an alien needed to be potentially penalized before the violent crime constituted an “aggravated felony” to one year). Because some states will give a one-year sentence for a misdemeanor, these crimes are now elevated to felonies for immigration purposes. See, e.g., Guerrero-Perez v. INS, 242 F.3d 727, 736–37 (7th Cir.), reh’g denied, 256 F.3d 546 (7th Cir. 2001) (finding misdemeanor offense for sexual abuse of minor an aggravated felony in Illinois); Matter of Small, 23 I. & N. Dec. 448 (B.I.A. 2002) (conviction of misdemeanor sexual abuse can be considered an aggravated felony). See generally Dawn Marie Johnson, AEDPA and the IIRIRA: Treating Misdemeanors as Felonies for Immigration Purposes, 27 J. Legis. 477 (2001) [hereinafter Johnson, AEDPA and the IIRIRA].
11 See generally Teresa A. Miller, Citizenship & Severity: Recent Immigration Reforms and the New Penology, 17 Geo. Immigr. L.J. 611 (2003).
12 See AEDPA � 441(e), 8 U.S.C. � 1101(a) (2000); IIRIRA �� 303, 304, 321, 348, 8 U.S.C. �� 1101(a), 1182(h), 1226 (2000).
13 See 8 U.S.C. � 1101(a) (1994). Although immigration law has long provided for the deportation of criminal aliens committing particularly serious crimes like murder, drug trafficking, and firearms trafficking, the range of deportable crimes has expanded exponentially in the last twenty years. See supra note 11.
14 See AEDPA � 441(e), 8 U.S.C. � 1101(a) (2000) (expanding the “aggravated felony” definition to include gambling, alien smuggling, and passport fraud); IIRIRA � 321, 8 U.S.C. � 1101(a)(43) (2000) (adding crimes such as rape and sexual abuse of a minor, as well as lowering sentence requirements of violent crimes to one year to be deportable).
15 Kati L. Griffith, Perfecting Public Immigration Legislation: Private Immigration Bills and Deportable Lawful Permanent Residents, 18 Geo. Immigr. L.J. 273, 276 (2004) (“Since 1996, even if an LPR has lived in the United States since childhood, she can be subject to mandatory deportation for almost any criminal conviction—including misdemeanors, such as shoplifting or a bar fight.”); Johnson, AEDPA and the IIRIRA, supra note 11, at 477.
1 See Serena Hoy, The Other Detainees, Legal Aff. 58 (Oct. 2004).
16 See AEDPA � 441(e), 8 U.S.C. 1101(a) (2000); IIRIRA � 321(b), 8 U.S.C. � 1101(a) (2000). The original approach of the IIRIRA was even harsher, retroactively subjecting noncitizens convicted either by a plea bargain or a verdict pre-dating the legislation to mandatory detention and deportation. See IIRIRA � 321(b), 8 U.S.C. � 321(b) (2000). However, the Supreme Court intervened by limiting retroactivity to guilty verdicts rather than plea bargains. INS v. St. Cyr, 533 U.S. 289, 326 (2001). See generally Daniel Kanstroom, St. Cyr or Insincere: The Strange Quality of Supreme Court Victory, 16 Geo. Immigr. L.J. 413 (2002).
17 Civil collateral penalties are disabilities and ineligibilities that inhere to a convicted felon not as part of the formal sentence, but as a result of holding the status of “convicted felon,” thus supplementing the criminal conviction. Such penalties have been adopted in a variety of regulatory domains, including housing law, voting law, family law, and employment law. See generally Civil Penalties, Social Consequences (Christopher Mele & Teresa Miller eds., 2005).
18 Press Release, Department of Homeland Security, Secretary Ridge Announces “Operation Predator Initiative” (July 9, 2003), at http://www.dhs.gov/dhspublic/display?content=
1069. Sex offenders became the object of harsh penal treatment during the “severity revolution” in crime control that “got tough” on criminals and rationalized the harsh treatment of drug offenders as well during the War on Drugs. See Simon, supra note 6, at 229, 233.
19 See generally Statement of Michael J. Garcia, Assistant Secretary, U.S. Immigration and Customs Enforcement, Department of Homeland Security Before the House Comm. on Judiciary, Subcomm. on Immigration, Border Security and Claims, 108th Cong. (2004), available at http://www.ice.gov/
graphics/news/testimonies/oppredator_030404.pdf.
20 See id. at 4-5.
21 See id. at 14.
22 Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT Act) Act of 2001, Pub. L. No. 107–56, 115 Stat. 272 (2001) (codified as amended in scattered sections of 8 U.S.C).
23 Homeland Security Act of 2002 (HSA), Pub. L. No. 107-296, �� 442, 451, 6 U.S.C. �� 252, 271 (2002).
24 Enhanced Border Security and Visa Entry Reform Act of 2002 (EBSVERA), Pub. L. No. 107-173, 116 Stat. 553, �� 201–203, 8 U.S.C. �� 1721–1723 (2002).
25 Morris, supra note 7, at 1322.
26 Dan Eggen, Deportee Sweep Will Start With Mideast Focus, Wash. Post, Feb. 8, 2002, at A1 (discussing the Justice Department’s Absconder Apprehension Initiative).
27 Deputy Attorney General Releases Internal Guidance for ‘Absconder’ Apprehensions, 79 Interpreter Releases 261, 261 (Feb. 18, 2002).
28 Id. Law enforcement officials distilled a list of priority absconders to less than 1000, suspected of being convicted felons, who would be targeted first. Id.
29 Id.
30 See, e.g., Sameer M. Ashar, Immigration Enforcement and Subordination: The Consequences of Racial Profiling after September 11, 34 Conn. L. Rev. 1185, 1193 (2002) (asserting that the Alien Absconder Initiative had “not resulted in any apparent progress in the war on terrorism. However, the DOJ, working on less-than-credible tips, has effectively disrupted individual lives, families, and communities”).
31 The War on Terrorism: Immigration Enforcement Since September 11, 2001: Hearing Before the House Subcomm. on Immigration, Border Security, and Claims of the House Committee on the Judiciary, 108th Cong. 14 (2003) (statement of William T. Dougherty, Director of Operations, ICE).
32 INA � 265, 8 U.S.C. � 1305 (1052), 8 C.F.R. � 265.1 (2004) (requiring all noncitizens remaining in the United States thirty days or more to report each change of address and new address to the USCIS within ten days on Form AR-11); see Daniel Kanstroom, Deportation and Justice: A Constitutional Dialogue, 41 B.C. L. Rev. 771, 777 n.33 (2000) [hereinafter Kanstroom, Deportation and Justice: A Constitutional Dialogue].
33 Jonathan Peterson, Noncitizens Must Report If They Move, L.A. Times, July 23, 2002, at.A1.
34 See Peterson, supra note 35. Following the announcement, a number of organizations commented. See Memorandum from the Illinois Coalition for Immigrant and Refugee Rights (ICIRR) to the INS (Aug. 2002), available at http://www.ilrc.org/la/INS_address_change_
comments1.doc; Memorandum from the National Asian Pacific American Legal Consortium to INS, (Aug. 26, 2002), available at http://www.napalc.org/files/Comments_67_Fed_Reg.
pdf.
35 See Alex Gourevitch, Alien Nation: The Justice Department Takes on Immigrants, Er, Terrorists, 13 Am. Prospect 15, 16 (2003). Within six weeks of the Justice Department’s announcement of its August 2002 policy change, the INS received 870,000 registration forms, compared to the 2,800 forms received in the preceding month. See Gourevitch, supra, at 15. Indeed, the U.S. General Accounting Office found that the INS lacked adequate processing procedures and controls to ensure that the alien address information received was complete integrated into automated databases. General Accounting Office, Report to Congressional Requesters, Homeland Security: INS Cannot Locate Many Aliens Because It Lacks Reliable Address Information 6–8 (2002), available at http://frwebgate.access.gpo.gov/
cgi-bin/useftp.cgi?IPaddress=162.140.64.88&filename=d03188.pdf&directory=/diskb/wais/
data/gao.
36 See 8 C.F.R. � 265.1 (2004); see also Kevin Johnson & Laura Parker, Ashcroft Plan to Track Aliens Hits Snag; Change-of-Address Cards Overwhelm INS, USA Today, Sept. 6, 2002, at A1 (quoting a Justice Department spokesman as saying, “The [change of address] rule is essential for keeping track of aliens who might—I stress might—pose a national security risk.”).
37 See Morris, supra note 7, at 1317. Mandatory detention was enacted by both ADAA and the IIRIRA. ADAA � 1751, 8 U.S.C. � 1182 (2000); IIRIRA � 303, 8 U.S.C. � 1226 (2000).
38 This mission was code-named “PENTTBOM,” for Pentagon Twin Towers Bombing. Office of the Inspector General, U.S. Dep’t of Justice, The September 11 Detainees: A Review of the Treatment of Aliens Held on Immigration Charges in Connection with the Investigation of the September 11 Attacks 17 (2003) (citing that the FBI in New York City should have made more of an effort to distinguish between aliens legitimately suspected under the PENTTBOM investigation and those who were not under suspicion), available at http://www.usdoj.gov/oig/
special/0306/full.pdf [hereinafter The September 11 Detainees]; see David Cole, Enemy Aliens, 54 Stan. L. Rev. 953, 960–61 (2002).
39 See Immigrant Rights Clinic, Indefinite Detention Without Probable Cause: A Comment on INS Interim Rule 8 C.F.R. � 287.3, 26 N.Y.U. Rev. L. & Soc. Change 397, 397 (2001) (commenting on use of law enforcement in immigration investigation).
40 See Seth Stern, Lawyers See Potential Abuse of Visa Laws to Hold Suspected Terrorists, Christian Sci. Monitor, Oct. 18, 2001, at 18.
41 Press Release, Department of Justice, Inspector General Issues Report on Treatment of Aliens Held on Immigration Charges in Connection with the Investigation of the September 11 Terrorist Attacks (June 2, 2003), available at http://www.usdoj.gov/oig/igspecr1.htm.
42 Oversight Hearing: Lessons Learned—The Inspector General’s Report on the 9/11 Detainees: Hearing Before the Senate Committee on the Judiciary, 108th Cong. �� 15, 19 (June 25, 2003), available at http://judiciary.senate.gov/testimony.cfm?id=817&wit_id_2316 (testimony of Michael Rolince, the Assistant Director in Charge, Washington Field Office, Federal Bureau of Investigations). As Assistant Director Rolince stated:
As this massive investigation unfolded, the concern of follow-on attacks was critical to our thinking and to our development of an investigative strategy. . . . [T]he Department of Justice, in conjunction with the FBI, determined that the best course of action to protect national security was to remove potentially dangerous individuals from the country and ensure that they could not return. Charges may have been withheld in such situations if, for example, they could have compromised ongoing investigations or sensitive intelligence matters.
Id.
43 Custody Procedures, 66 Fed. Reg. 48,334–35 (Sept. 20, 2001) (to be codified at 8 C.F.R. pt. 287) (amending INA � 287.3(d) and enacting an interim rule under APA 5 U.S.C. � 553 [foreign affairs and good cause exception to notice and comment], which mandates only post-promulgation public comment); see Jess Bravin et al., Justice Department Moves to Use New Authority in Detaining Aliens, Wall St. J., Sept. 26, 2001, at A6; William Glaberson, Investigators Explore Boundaries Of Everything the Law Allows, N.Y. Times, Sept. 17, 2001, at A2.
44 66 Fed. Reg. 48,334; Bravin, supra note 45.
45 Bravin, supra note 45.
46 April McKenzie, A Nation of Immigrants or a Nation of Suspects? State and Local Enforcement of Federal Immigration Laws Since 9/11, 55 Ala. L. Rev. 1149, 1155–56 (2004); see also USA PATRIOT Act � 701, 42 U.S.C. � 3796(h) (2003). But see Susan N. Herman, Our New Federalism? National Authority and Local Autonomy in the War on Terror, 69 Brook. L. Rev. 1201, 1214–18 (2004) (citing cities that have passed ordinances banning their law enforcement from participating in the regulation of federal immigration laws).
47 See Kanstroom, Criminalizing the Undocumented, supra note 1, at 659–60.
48INS Signs Agreement with Florida to Authorize State, Local Officers to Perform Immigration Enforcement Functions, 79 Interpreter Releases 1120, 1120 (July 29, 2002) (citing memorandum of understanding stating that INA � 287(g)(1) authorizes use of local authorities in immigration enforcement).
49 Id. at 1120. A Justice Department ruling that local officers have “inherent authority” to enforce federal immigration laws has not been publicly disclosed. Cindy Gonzalez, Immigration Policing Shift Gets Mixed Reviews, Omaha World-Herald, Apr. 6, 2002, at B1; Eric Schmitt, Administration Split on Local Rule on Terror Fight, N.Y. Times, Apr. 29, 2002, at A1. A current lawsuit under the Freedom of Information Act seeks disclosure of the DOJ “Opinion of the Office of Legal Counsel” terms. See Complaint, Nat’l Council of La Raza v. Department of Justice (S.D.N.Y. filed Apr. 14, 2003), available at http://www.aclu.org/Files/
OpenFile.cfm?id=12356.
50 Immigration and Naturalization Services (INS) Interior Enforcement Strategy: Hearing Before the Subcomm. on Immigration, Border Security, and Claim of the Comm. on the Judiciary, 107th Cong. 30 (2002) (testimony of Marisa Demeo, Regional Counsel, Mexican American Legal Defense Fund).
51 See H.R. 2671, 108th Cong. (2003). In addition, the proposed legislation would assess fines on illegal aliens and permit forfeiture of their assets. Id. Companion legislation in the form of Senate Bill 1906 was introduced in the Senate by Senators Jeff Sessions (R-Ala.) and Zell Miller (D-Ga.), entitled “The Homeland Security Enhancement Act of 2003.” S. 1906, 108th Cong. (2003).
52 Billy House, Plan to Have Police Enforce Immigration Law Is Delayed, Ariz. Republic, Apr. 9, 2004, at A15. The Congressional Budget Office estimated that the House version of the bill would cost federal taxpayers a hefty $9 billion over four years. Id.
53 See Rebecca McCarthy, Immigration Status Not Local Matter: Police, Others Resist U.S. Legislation to Have Them Enforce Law, Atlanta J. Const., May 17, 2004, at J1.
54 INA � 208(a), 8 U.S.C. � 1158(a) (2000).
55 INA � 101(a)(42)(A), 8 U.S.C. � 1101(a)(42) (2000); see Karen C. Tumlin, Suspect First: How Terrorism Policy Is Reshaping Immigration Policy, 92 Cal. L. Rev. 1173, 1190 (2004) (stating that asylum seekers have traditionally been one of the most protected groups under U.S. immigration policy).
56 See Secretary of Department for Homeland Security Tom Ridge, Press Briefing on Operation Liberty Shield � 13 (Mar. 18, 2003) (justifying detention of asylum seekers to ensure that they are not immigrating to cause “harm or bring destruction to our shores”), available at http://www.dhs.gov/dhspublic/display?content=525. There appears to be a presumption against the validity of asylum claims. See id.
57 Nina Bernstein, Out of Repression, Into Jail, N.Y. Times, Jan. 15, 2004, at B1 (contrasting blanket detention of high risk asylum seekers with prior case-by-case review); Press Release, Department of Homeland Security, Operation Liberty Shield � 9 (Mar. 17, 2003), available at http://www.dhs.gov/dhspublic/interapp/press_release/press_release_0115.xml [hereinafter Press Release, Operation Liberty Shield].
58 See Lori Adams, U.N. Reports Refugee Rights in the U.S. Scaled Back by Recent Anti-terrorism Legislation: Are We Violating the United Nations Refugee Convention?, 19 N.Y.L. Sch. J. Hum. Rts. 807, 812 (2003); see also Press Release, Operation Liberty Shield, supra note 59, � 9.
59 See EOIR, BICE, Others Testify on Post-9/11 Adjudications, Closed Hearings, Special Registration, Civil Liberties, Other Issues, 80 Interpreter Releases 692, 694 (May 12, 2003).
60 Id. at 694. Only eight arrests were made on criminal charges. Id.
61See Kanstroom, Criminalizing the Undocumented, supra note 1, at 660; Malcolm Feeley & Jonathan Simon, The New Penology: Notes on the Emerging Strategy of Corrections and Its Implications, 30 Criminology 449, 449 (1992).
62 See generally Kanstroom, Criminalizing the Undocumented, supra note 1; Miller, supra note 12.
63 Mary Beth Sheridan, Tougher Enforcement by INS Urged, Wash. Post, Sept. 18, 2001, at A15.
64 James H. Johnson, Jr., U.S. Immigration Reform, Homeland Security, and Global Economic Competitiveness in the Aftermath of the September 11, 2001 Terrorist Attacks, 27 N.C. J. Int’l L. & Com. Reg. 419, 427–28 (2002) (emphasizing that non-immigrants were admitted in increasing numbers between 1981 and 1999 to contribute to economy and citing an “open door” policy).
65 See id.
66 See Sheridan, supra note 66.
67 See Fong Yue Ting v. United States, 149 U.S. 698, 730 (1893) (holding that an order of deportation is not punishment, but a method of enforcing a type of social contract between the government and aliens residing in the country; therefore, constitutional protections such as procedural due process, the right to trial by jury and the right to be free from cruel and unusual punishments do not apply); Teresa A. Miller, By Any Means Necessary: Collateral Civil Penalties of Non-U.S. Citizens and the War on Terror, in Civil Penalties, Social Consequences, supra note 19, at 48.
68 Bravin, supra note 45.
69 See, e.g., Kanstroom, Deportation, Social Control and Punishment, supra note 8, at 1893.
70 See IIRIRA �� 304(a), 302(a)(2), 8 U.S.C. � 1226 (2000); INA � 242(g), 8 U.S.C. � 1252(g) (2000) (withdrawing judicial review from virtually all immigration decisions); Melissa Cook, Note, Banished for Minor Crimes: The Aggravated Felony Provision of the Immigration and Nationality Act as a Human Rights Violation, 23 B.C. Third World L.J. 293, 312 (2003) (discussing reduced judicial review).
71 See Fong Yue Ting, 149 U.S. at 730.
72 See Daniel Kanstroom, Crying Wolf or a Dying Canary?, 25 N.Y.U. Rev. L. & Soc. Change 435, 477 (1999) (arguing that a credible open immigration system is impossible while simultaneously sacrificing due process ideals) [hereinafter Kanstroom, Crying Wolf or a Dying Canary?]. Many who have studied or worked within the immigration system may feel that to link immigration reforms to the blatant racism, class bias, and overt social control facilitated by the criminal justice system would delegitimize immigration law. See generally Marc Mauer, Race to Incarcerate (1999); Michael Tonry, Malign Neglect: Race, Crime and Punishment in America (1995); Randall Kennedy, Race, Crime and the Law (1997); David C. Baldus & George Woodworth, Race Discrimination and the Legitimacy of Capital Punishment: Reflections on the Interaction of Fact and Perception, 53 DePaul L. Rev. 1411 (2004); Kevin McNally, Race and the Federal Death Penalty: A Non-Existent Problem Gets Worse, 53 DePaul L. Rev. 1615 (2004); Floyd Weatherspoon, Ending Racial Profiling of African-Americans in the Selective Enforcement of Laws: In Search of Viable Remedies, 65 U. Pitt. L. Rev. 721 (2004).
73 Charlotte Stichter, Homeland Security Meets Immigration: A Review of Recent Governmental Activity and Pending Legislation, 2002 Immigration Briefings 1 (Oct.) (noting that in the midst of policy changes that unfolded in the months following the attacks, immigration practitioners have had to “reorient themselves to the altered legal landscape” and “catch their collective breath”).
74 Feeley & Simon, supra note 63, at 455; Jonathan Simon, The Ideological Effects of Actuarial Practices, 22 Law & Soc’y Rev. 771, 773–74 (1988).
75 See discussion infra Part II.A. The new penology also explains how post-9/11 immigration reforms “govern through terror” by bringing the tools of counterterrorism to bear on problems of crime, surplus labor, and unpredictable demand for public subsidy. Id.
76 See Kanstroom, Deportation, Social Control, and Punishment, supra note 8, at 1890–92.
77 See id. at 1911–14; discussion infra Part II.B.
78 Michael Welch, The Role of the Immigration and Naturalization Service in the Prison-Industrial Complex, 27 Soc. Just. 73, 78 (2000).
79 Id.
80 Id. at 73–74.
81 Feeley & Simon, supra note 63, at 450.
82 See id.
83 See id. at 450; Welch, supra note 80, at 74–75.
84 See Feeley & Simon, supra note 63, at 455. The new penology’s goal “is not to eliminate crime but to make it tolerable through systemic coordination.” Id.
85 See id. at 459; Jonathan Simon, Managing the Monstrous: Sex Offenders and the New Penology, 4 Psychol. Pub. Pol’y & L. 452, 453 (1998).
86 See Feeley & Simon, supra note 63, at 459. Indeed, Feeley and Simon describe a “custodial continuum” from solitary confinement units to military-style boot camps to electronic monitoring/house arrest that responds not to the particular needs of individual offenders, but to the degree of risk posed by groups of offenders (and thus the degree of control warranted to respond to the risk). Id.
87 See id. at 456.
88 Id. at 463.
89 See id.
90 See Miller, supra note 12, at 639.
91 See discussion supra Part I.B.
92 Zadvydas v. Davis, 533 U.S. 678, 701 (2001) (holding that 8 U.S.C. � 1231(a)(6) contained an implicit “reasonable time” limitation of six months, the application of which was subject to federal court review). Although Zadvydas restricted the government’s authority to hold immigration detainees indefinitely, it did not overrule Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953), which authorized the indefinite detention of immigration detainees determined by Congress or the Executive to pose a threat to national security. See id. at 694; see also Gavin M. Montague, Should Aliens Be Indefinitely Detained Under 8 U.S.C. � 1231? Suspect Doctrines and Legal Fictions Come Under Renewed Scrutiny, 69 Fordham L. Rev. 1439, 1444 (2001). See generally Michelle Carey, You Don’t Know If They’ll Let You Out in One Day, One Year, or Ten Years. . . Indefinite Detention of Immigrants After Zadvydas v. Davis, 24 Chicano-Latino L. Rev. 12 (2003); Christina DeConcini, Post September 11: Sea Change in Attitudes and Approach by Government Toward Immigrants, 1390 PLI/Corp 109 (2003); Joshua W. Gardner, Halfway There: Zadvydas v. Davis Reins in Indefinite Detentions, But Leaves Much Unanswered, 36 Cornell Int’l L.J. 177 (2003); Susan Marx, Throwing Away the Key: The Constitutionality of the Indefinite Detention of Inadmissible Aliens, 35 Tex. Tech L. Rev. 1250 (2004).
93 See Miller, supra note 12, at 650–51; see also Nora V. Demleitner, The Fallacy of Social “Citizenship” or the Threat of Exclusion, 12 Geo. Immigr. L.J. 35, 45–46 (1997); Peter H. Schuck, Alien Rumination, 105 Yale L.J. 1963, 1985 (1996) (reviewing Peter Brimelow, Alien Nation: Common Sense About America’s Immigration Disaster (1995)).
94 Ellis M. Johnston, Once a Criminal, Always a Criminal?: Unconstitutional Presumptions for Mandatory Detention of Criminal Aliens, 89 Geo. L.J. 2593, 2594 (2001).
95 See supra note 4.
96 INA � 241(a)(4)(A), 8 U.S.C. � 1251 (2000); Ira Kurzban, Kurzban’s Immigration Law Sourcebook 49, 53 (8th ed. 2002). A crime of moral turpitude refers generally to:
[C]onduct which is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general. Moral turpitude has been defined as an act which is per se morally reprehensible and intrinsically wrong, or malum in se, so it is the nature of the act itself and not the statutory prohibition of it which renders a crime one of moral turpitude.
Id. at 53 (citing Matter of Franklin, 20 I. & N. Dec. 867, 868 (B.I.A. 1994), aff’d 72 F.3d 571, (8th Cir. 1995)). However, noncitizens with multiple convictions for crimes of moral turpitude (not arising out of the same criminal scheme) were always subject to deportation regardless of the length of time between entry and conviction or the length of the sentence imposed. See INA � 241(a)(4)(A), 8 U.S.C. � 1251 (2000); Pacheco v. INS, 546 F.2d 448, 452 (1st Cir. 1976); Nason v. INS, 394 F.2d 223, 227–28 (2d Cir. 1968); Jeronimo v. Murff, 157 F. Supp 808, 815 (S.D.N.Y. 1957).
97 See INA � 241(a)(4), 8 U.S.C. � 1251 (2000); Susan Levine, On the Verge of Exile: For Children Adopted From Abroad, Lawbreaking Brings Deportation, Wash. Post, Mar. 5, 2000, at A1 (chronicling the deportation of Joao Herbert, a Brazilian child adopted by U.S. citizens, deported for a drug conviction, and later killed in Brazilian gang violence). The retroactive nature of deportation for aggravated felons after 1996 socially controls immigrant communities by expanding the screening of non-U.S. citizens for criminality from admissibility determinations made at the border to interior deportation proceedings. See Levine, supra. The old regime for criminal alien deportation focused on screening for criminal propensities at the border, and excluding those aliens with past criminal convictions or conduct. Under this regime, aliens admitted to the United States could be deported if they were convicted of a single crime of moral turpitude within five years of entry (where a sentence of one year or more is imposed). If a resident alien committed a crime of moral turpitude six years after admission, he or she would not be deportable. One explanation for this rule regime is that immigration officials screened for criminal propensities at the border, permitting deportation on the basis of some post-entry criminal conduct as a way of ensuring that criminal propensities acquired abroad, but not detected at the border, can be caught soon after admission and addressed through deportation. After 1996, retroactive deportation of aggravated felons is permitted, without regard to when the conviction occurs. See INA � 241(a)(4), 8 U.S.C. � 1251 (2000) Thus, long-term resident aliens who came to the United States at a young age are vulnerable to deportation even though their convictions occurred ten or twenty years after admission. See Levine, supra. The case of children adopted abroad and brought to the United States as infants illustrates the disregard for where criminal propensities develop. Id.
98 Levine, supra note 99.
99 See IIRIRA � 321, 8 U.S.C. � 1101(a)(43) (2000); see also Kurzban, supra note 98, at 158–59.
100 See IIRIRA � 321(b), 8 U.S.C. � 1101(a)(43) (2000). Under IIRAIRA � 321(b), the effective date of the definition of aggravated felony is retroactive, covering all crimes within the definition irrespective of the date of commission. Id.
101 See id. A light sentence may reflect mitigating circumstances surrounding the defendant’s guilt. Furthermore, after 1996, a sentence refers to a time of incarceration or confinement ordered by a court, even if the time of confinement is suspended or the execution is withheld. Kurzban, supra note 98, at 119–20.
102 See discussion supra Part I.
103 See Feeley & Simon, supra note 63, at 455.
104 See generally National Commission on Terrorist Attacks upon the United States, 9/11 Commission Report: Final Report of the National Commission on Terrorist Attacks upon the United States (2004). Efforts to better secure U.S. borders include more aggressive law enforcement, greater documentation requirements, and technological innovations such as the US-VISIT program, NSEERS, and new biometric technologies. DHS officials employ the aphorism “safer, but not safe” extensively to emphasize the need for continued vigilance, while reassuring the public that security measures are justified.
105 See discussion supra Part I. Chief among these consequences is apprehension, arrest, and confinement in conditions of custody resembling criminal incarceration.
106 See Feeley & Simon, supra note 63, at 450 (discussing the use of probability in the new penology).
107 See Department of Homeland Security Color-Coded Threat Level System, at www.dhs.
gov (last visited Nov. 22, 2004). The Color-Coded Threat Level System is prominent on the DHS homepage and is an important component of the Homeland Security Advisory System. See id. It has five color-coded warning levels to classify the degree of risk of a terrorist attack, ranging from green or “low,” to blue or “guarded,” to yellow or “elevated,” to orange or “high,” to red or “severe.” Id.
108 Michael J. Whidden, Unequal Justice: Arabs in America and United States Antiterrorism Legislation, 69 Fordham L. Rev. 2825, 2861–62, 2872–74 (2001).
109 See Kevin R. Johnson, September 11 and Mexican Immigrants: Collateral Damage Comes Home, 52 DePaul L. Rev. 849, 850–51 (2003) (examining the negative impact of the government’s response to the 9/11 attacks on the Mexican immigrant community in the United States) [hereinafter Johnson, September 11 and Mexican Immigrants].
110 See Feeley & Simon, supra note 63, at 455.
111 David Simcox, U.S. Immigration in the 1980s: Reappraisals and Reform 3 (1988). The success of cultural movements of the 1960s, 1970s, and 1980s in favor of bilingual education and multiculturalism contributed to the demise of the notion that the immigration process transforms “foreigners” into true “Americans” through a melting pot process. Miller, supra note 12, at 626 (referencing “compassion fatigue”).
112 Whidden, supra note 110, at 2865.
113 See Feeley & Simon, supra note 63, at 455. A good example of a risk classification system is the way the DHS has conducted the Alien Absconder Initiative. The DHS has strictly enforced pre-9/11 deportation orders against an estimated 320,000 foreign nationals remaining in the United States, but has prioritized an estimated 6000 absconders on the list from Arab and other Muslim countries. See Susan Sachs, U.S. Begins Crackdown On Muslims Who Defy Orders to Leave Country, N.Y. Times, Apr. 2, 2002, at A13. Within this category, the DHS focused first on those estimated 1000 priority absconders with past criminal convictions. Id.
114 See Johnson, September 11 and Mexican Immigrants, supra note 111, at 868.
115 See Feeley & Simon, supra note 63, at 450–55.
116 Attorney General Seeks to End Racial Profiling, N.Y. Times, Mar. 2, 2001, at A20. Both President George W. Bush and Attorney General John Ashcroft condemned the practice of considering a person’s race or ethnicity in making traffic stops and conducting criminal investigations. Id. During his 2000 presidential campaign and later, in a “State of the Union-style” address in February 2001, President Bush condemned racial profiling, saying, “It’s wrong, and we will end it in America.” Eric Lichtblau, Bush Issues Racial Profiling Ban But Exempts Security Inquiries, N.Y. Times, June 18, 2003, at A1.
117 Johnson, September 11 and Mexican Immigrants, supra note 111, at 868.
118 See id. at 868–69, 69 n.22–26. Johnson cites a litany of articles and media reports expressing support for racial profiling in investigating and combating terrorism. See id. at 869.
119 See Lichtblau, supra note 118.
120 Karen Tumlin, Suspect First: How Terrorism Policy is Reshaping Immigration Policy, 92 Cal. L. Rev. 1173, 1184 (2004).
121 The INS was subsumed by the DHS in March 2003.
122 67 Fed. Reg. 52,584 (Aug. 12, 2002); INS Publishes Final Rule on Special Registration, Monitoring in Light of Ongoing Terrorism Concerns, 79 Interpreter Releases 1230, 1230 (Aug. 19, 2002).
123 See INS Publishes Final Rule on Special Registration, supra note 124, at 1230.
124 See Saudis, Pakistanis Added to Special Registration List, Armenians Deleted, Advocates Organize, 80 Interpreter Releases 2, 3 (Jan. 6, 2003). Although the list of countries whose nationals were required to register was amended several times, when discontinued, the list included the following: Iran, Iraq, Libya, Sudan, Syria, Afghanistan, Algeria, Bahrain, Eritrea, Lebanon, Morocco, North Korea, Oman, Qatar, Somalia, Tunisia, United Arab Emirates, Yemen, Pakistan, Saudi Arabia, Bangladesh, Egypt, Indonesia, Jordan, and Kuwait. Id. at 2 n.6.
125 See INS Publishes Final Rule on Special Registration, supra note 124, at 1230. Non-immigrants subject to special registration were required to report to INS (now DHS) authorities upon entry, or, if they had already entered, to call in their registration. Id.
126 Saudis, Pakistanis Added to Special Registration List, supra note 126, at 3.
127 See Special Registration to End, Be Replaced by Upcoming U.S. Visit Monitoring Program for All Visitors, 80 Interpreter Releases 690, 690 (May 12, 2003) [hereinafter Special Registration to End]. At a National Press Club function in April 2003, Secretary of Homeland Security Tom Ridge remarked that the launch of the U.S. Visitor and Immigration Status Indication Technology System (US-VISIT) would provide DHS with “the crucial biometric information needed to end the domestic registration of people from certain countries.” Id.
128 Maia Jachimowicz & Ramah McKay, “Special Registration” Program, Migration Information Source, Migration Policy Institute � 5 (Apr. 1, 2003), at http://www.migra
tioninformation.org/feature/display.cfm?=116. According to one authority on migration trends, as of March 25, 2003, a total of 60,822 men had registered through special registration. Id. Some 2034 male foreign visitors have been detained temporarily through the Special Registration Program for various violations of immigration law. Id. � 8.
129 Rachel L. Swarns, Thousands of Arabs, Muslims Could Be Deported, Officials Say, N.Y. Times, June 7, 2003, at A1. Ironically, those who failed to register but were subject to removal were not caught. Another example of enhanced reporting requirements rendering noncitizens more visible is the Student and Exchange Visitor Information System (SEVIS) through which educational institutions and exchange programs report and update information regarding the enrollment status and progress of foreign and exchange students within the United States. See Special Registration System to End, supra note 129, at 690 n.82. The change of address requirement is yet another example of the War on Terror maximizing social control of immigrant communities through surveillance and greater visibility. See discussion supra Part I. Out of the pool of special registrants, 13,434 were found to be out of technical compliance with immigration regulations and consequently processed for deportation.
130 Rebecca Carr & Tasgola K. Bruner, 3,000 Foreigners Sought for Terror Questioning, Atlanta J. Const, Mar. 21, 2002, at A3.
131 See Registration and Monitoring of Certain Non-immigrants, 67 Fed. Reg. 40,581 (June 13, 2002). The rule became final on August 12, 2002 and effective on September 11, 2002. 67 Fed. Reg. 52, 584 (Aug. 12, 2002).
132 See Encourage Cooperation Not Fear, Miami Herald, Sept. 15, 2002, at 4L. Even the approximately 6000 noncitizens chosen for removal as “priority” absconders under the Alien Absconder Initiative were selected from a pool of some 320,000 individuals with final orders of deportation based on Middle Eastern heritage or Muslim religion. Leti Volpp, The Citizen and the Terrorist, 49 UCLA L. Rev. 1575, 1579–80, 1580 n.12 (2002). Furthermore, the Bush administration’s policy of automatically detaining asylum seekers from thirty-three Middle Eastern and South Asian countries has been criticized as prejudging guilt on the basis of country of origin. See Christopher Drew & Adam Liptak, Immigration Groups Fault Rule on Automatic Detention of Some Asylum Seekers, N.Y. Times, Mar. 31, 2003, at B15.
133 See Kanstroom, Criminalizing the Undocumented, supra note 1, 647–48.
134 See id. at 642, 648–49.
135 INA � 101(a)(15)(s), 8 U.S.C. � 1101(a)(15)(s) (2000); see also Kurzban, supra note 98, at 590 (explaining adjustment of S-1 and S-2 visa holders for family and spouse).
136 See Nora V. Demleitner, Immigration Threats and Rewards: Effective Law Enforcement Tools in the “War” on Terrorism?, 51 Emory L.J. 1059, 1074–75 (2002).
137 Id.
138 Id. at 1060.
139 See Feeley & Simon, supra note 63, at 457–58; see also Simon, supra note 6, at 220–22.
140 See Fareed Zakaria, Freedom vs. Security: Delicate Balance: The Case for ‘Smart Profiling’ as a Weapon in the War on Terror, Newsweek, July 8, 2002, at 31.
141 Kanstroom, Criminalizing the Undocumented, supra note 1, at 660–61.
142 Merle English, Pakistanis Flee INS Registry, Newsday, Jan. 10, 2003, at A29 (“Fear of being detained and deported is driving some Pakistani nationals to flee the United States [pursuant to an upcoming deadline], when some undocumented immigrant males 16 and older must begin to register with the Immigration and Naturalization Service.”).
143 See generally Kanstroom, Crying Wolf or Dying Canary?, supra note 74; Kanstroom, Deportation, Social Control, and Punishment, supra note 8; Kanstroom, Deportation and Justice: A Constitutional Dialogue, supra note 34, at 771.
144 See Kanstroom, Deportation, Social Control, and Punishment, supra note 8, at 1897–98.
145 See id. at 1891–92.
146 See id. at 1894.
147 See, e.g., id. at 1891.
148 See id. at 1891–92, 1921–26.
149 See Kanstroom, Deportation, Social Control, and Punishment, supra note 8, at 1891–92, 1921–26. The notion of efficiency reflects Feeley and Simon’s actuarial analysis of crime control. See generally Feeley & Simon, supra note 63.
150 Mark Dow, American Gulag: Inside U.S. Immigration Prisons 25–26 (2004).
151 Office of the Inspector General, U.S. Dep’t of Justice, The September 11 Detainees: A Review of the Treatment of Aliens Held on Immigration Charges in Connection with the Investigation of the September 11 Attacks 15-16 (2003), available at http://www.usdoj.gov/oig/special/0306/full.pdf.
152 Id. at 17–18 (citing that the FBI in New York City should have made more of an effort to distinguish between aliens legitimately suspected under the PENTTBOM investigation and those who were not under suspicion).
153Id.
154 See discussion supra Part II.
155 See Kanstroom, Criminalizing the Undocumented, supra note 1, at 642–43. Sheela Murthy, Impact of September 11, 2001 on U.S. Immigration, 37 Md. B.J. 3, 4 (Mar./Apr. 2004).
156 Miller, supra note 12, at 616–20.
157 Michael Welch, Detained: Immigration Laws and the Expanding INS Jail Complex 156 (2002).
158 Id.
159 Id. at 152–155.
160 Id. at 151.
161 Id. at 159–166.
162 See Welch, supra note 159, at 74, 106–109.
163 See generally Eric E. Sterling, The Sentencing Boomerang: Drug Prohibition Politics and Reform, 40 Vill. L. Rev. 383 (1995). The War on Drugs is aided substantially by the War on Terror. And by all accounts, the War on Terror has been far more successful at advancing the drug war (through the mass deportation of a criminal aliens with drug convictions and the expulsion of economically marginal undocumented aliens either consuming drugs or selling drugs for subsistence) than in detecting and expelling terrorists. See id.
164 Somini Sengupta & Christopher Drew, Effort to Discover Terrorists Among Illegal Aliens Makes Glacial Progress, Critics Say, N.Y. Times, Nov. 12, 2001, at B8.
165 Dow, supra note 152, at 25. In part, the heavy use of detention in combating terrorism was driven by detention capacity created under the War on Drugs and the demonstrated willingness to make use of it.
166 See Immigrant Exploitation and Incarceration: Frequently Asked Questions, Not With Our Money � 1, at www.notwithourmoney.org/03_prisons/immigrants02.html (last visited Dec. 4, 2004). Budget deficits, a growing prison reform movement and changing public attitudes about long sentences for non-violent, low-level drug offenders have brought state incarceration rates down to 0.3%, the lowest level in decades. See id.
167 Nicholas Kulish, Homeward Bound: States That Exported Inmates in 1990s Have Second Thoughts Now, Wall St. J., Dec. 20, 2001, at A1.
168 See Fox Butterfield, Number of People in State Prisons Declines Slightly, N.Y. Times, Aug. 13, 2001, at A1.
169 Fox Butterfield, 1% Increase in U.S. Inmates is Lowest Rate in 3 Decades, N.Y. Times, July 31, 2002, at A12.
170 For an informative and detailed explanation of the conditions that led to the government’s heavy reliance upon the private sector for the housing of immigration detainees, see Joseph Summerill, Reforming Prison Contracting: An examination of Federal Private Prison Contracts, 64 Corrections Today 100 (Dec. 1, 2002).
171 See Liberating the Voices: Fighting Immigrant Prisons in the Southwest, Border Action Network, at 1 (2003) (“With the passage of the USA PATRIOT Act, the Border Security Bill and other counterterrorism measures in 2002, . . . one industry in particular, the private prison industry, was gearing up to fulfill the newest demand: incarceration of immigrants.”), available at http://www.borderaction.org/PDFs/BAN-Immigrant%20Prison%20Report.pdf; see also Federal Bail Out for Private Prison Industry Continues, 59 Prison Privatisation Rep. Int’l � 1 (Dec. 2003), at http://www.psiru.org/justice/ppri59.htm#United States.
172 OCSEA Members Protest Private Prison Bailout: Groups Plan to Hold Federal Government, Lehman Brothers Accountable, Ohio Civil Service Employees Association (OCSEA) � 7 (May 17, 2002), at http://www.ocsea.org/drc_051702.html. Correctional officers’ unions have been particularly outraged about the role of private firms in the rapidly growing federal immigration detention market. See id.
173 See Eggen, supra note 28.
174 See Bruce Finley, U.S. Expanding Prisons to Detain More Immigrants, Houston Chron., Dec. 7, 2003, at A3.
175 See id. So-called “profiteering” on the shirttails of the rapidly expanding federal immigration detention industry is not limited to the private sector. Many county and municipalities across the United States are vying for contracts with the Department of Homeland Security to house its burgeoning detainee population.
176 See Tim Lemke, U.S. Firm Pioneers Prisons Industry with Global Reach: Wackenhut Runs 36 U.S. Facilities and 19 Overseas, Wash. Times, Feb. 25, 2002, at A1. Recent revelations of torture and sexual abuse of prisoners held in the Abu Ghraib facility in Iraq underscore links between private prison entrepreneurs in the United States and the operation of military facilities for the detention of terror suspects in Iraq, including the employment of American private prison entrepreneurs as consultants on military prison operations and members of Justice Department’s Iraqi “criminal justice reconstruction team”. Sasha Abramsky, Incarceration, Inc: Private Prisons Thrive on Cheap Labor and the Hunger of Job-Starved Towns, 279 Nation 22, 23 (July 19, 2004) (“Abu Ghraib was controlled in the early days by one Lane McCotter; to spend time in Iraq, McCotter, who returned to the United States in September, took a leave of absence from his job as director of business development for corrections at Management and Training Corporation, a Centerville, Utah-based private prison company that hired him after he resigned as head of Utah’s department of corrections . . . .”); Iraq: More Cashing In, 58 Prison Privatisation Rep. Int’l � 66 (Oct. 2003), at http://www.psiru.org/justice/PPRI58.asp#IRAQ.
177 Jonathan Simon, Governing Through Crime, in The Crime Conundrum: Essays on Criminal Justice 174 (Lawrence Friedman & George Fisher eds., 1997).
178 Id. Jonathan Simon asserts that:
It has been obvious for some time that crime was casting a disproportionate shadow over what we primarily identify with governance, i.e., politicians and the electoral process of democracy. . . . Less obvious are the ways in which crime has become a linchpin of governance within the less celebrated but more primary settings of governance. In schools, prevention of crime and drug use has arguably been the most significant agenda item for the last two decades.
Id.
179 Id. at 176–77.
180 See Simon, supra note 6, at 246.
181 HSA, Pub. L. No. 107-296, 116 Stat. 2135 (2002) (codified as amended in scattered sections of U.S.C.).
182 See Simon, supra note 6, at 217, 246.
183 See Kanstroom, Criminalizing the Undocumented, supra note 1, at 641–42. See generally Lichtblau, supra note 118 (discussing racial profiling policies before and after 9/11).
184 See Thomas Frank, Schumer Takes On Saudi State Religion: Wahhabi Stance Draws Criticism, Newsday, Aug. 13, 2003, at A12; Dan Mihalopoulos, U.S. Probes Jail Ministry for Muslims: Critics Say Some Chaplains Spread Extremist Views, Chi. Trib., Aug. 10, 2003, at A1.
185 Gary Dempsey, Crime or Act of War?, Cato Inst. �� 2–3 (Sept. 25, 2001), at http://
www.cato.org/current/terrorism/pubs/dempsey-010925.html.
186 See Frank Ahrens, New Pitch in Anti-Drug Ads: Anti-Terrorism, Wash. Post, Feb. 4, 2002, at A3. The two Super Bowl ads cost nearly $3.5 million to run. Id. They claimed that money to purchase drugs likely ends up in the hands of terrorists and narco-criminals. Id. The ads kicked off a four-to-six-week nationwide campaign, which included ads on radio and in 293 newspapers. Id.
187 See, e.g., USA PATRIOT Act � 352, 31 U.S.C. � 5318(h) (2003) (mandating that all financial institutions establish anti-money laundering programs). Title III of the PATRIOT Act, the International Money Laundering Abatement and Anti-Terrorist Financing Act of 2001, has been characterized as the most significant U.S. anti-money laundering legislation in thirty years. Robert G. Bagnall, Anti-Money Laundering, SJ095 ALI-ABA 222, 222 (June 17-19, 2004).
188 HSA � 101, 116 Stat. 2135, 6 U.S.C. � 111 (2003).
189 Asa Hutchinson, Congressional Testimony, DHS Fact Sheet: Arizona Border Control Initiative, (June 17, 2004), available at http://www.dhs.gov/dhspublic/display?theme=43&con
tent=3356.
190 Press Release, U.S. Department of Homeland Security Press Release, Secretary Ridge Announces New Financial Investigations Initiatives: Unveils Comprehensive New Programs to Protect U.S. Financial Systems from Criminal Exploitation (July 8, 2003), available at http://www.dhs.gov/interweb/assetlibrary/Financial_Crimes_Press_Kit.doc.
191 U.S. Department of Homeland Security, Fact Sheet: Operation Predator (July 9, 2003), available at http://www.dhs.gov/dhspublic/display?theme=43&contentU.S.=1067&
print=true.
192 See H.R. 2671, 108th Cong. (2004).
193 House Subcommittee Debates Local Law Enforcement of Immigration Laws under Proposed CLEAR Act, 80 Interpreter Releases 1407, 1407 (2003); Michael J. Wishnie, State and Local Police Enforcement of Immigration Laws, 6 U. Pa. J. Const. L. 1084, 1086-87 (2004).
194 News Release, CLEAR Act Hits 125 (Oct. 13, 2004), at http://www.house.gov/
apps/list/press/ga09_norwood/CLEARAct125.html [hereinafter CLEAR Act Hits 125]. The proposed legislation has sparked nationwide controversy. Many local law enforcement agencies and communities have openly opposed the CLEAR Act because it contravenes a long-standing tradition in many communities of separating crime control and immigration control functions. For example, the City of Houston rejected local enforcement of immigration law. See Clear Law Enforcement for Criminal Alien Removal Act of 2003 (CLEAR Act), Hearing on H.R. 2671, 38 (Oct. 1, 2003) (statement of Gordon Quan, Member, City Council, Houston, Texas), available at http://www.house.gov/judiciary/89636.PDF. New York City Mayor Michael Bloomberg initiated a policy which prohibited law enforcement officers in his city from inquiring about a person’s immigration status, unless they are suspected of a crime. See Maurize Pinzon, New York City Still Eager to Integrate Immigrants, N.Y. News Network �� 23–25 (Oct. 17 2004), available at http://www.nynewsnetwork.com/Arti
cle.php?article=nyc+still+eager+to+integrate+immigrants.xml. As of October 13, 2004, the CLEAR Act had 125 sponsors from both sides of the aisle. CLEAR Act Hits 125, supra.
195 Frank James, U.S. Expands Right to Detain; Ashcroft Invokes National Security, Chi. Trib., Apr. 25, 2003, at 1; Rachel Swarns, Illegal Aliens Can be Held Indefinitely, Ashcroft Says, N.Y. Times, Apr. 26, 2003 at A14 [hereinafter Swarns, Illegal Aliens Can be Held].
196 D-J-, 23 I. & N. Dec. 572, 573–74 (B.I.A. 2003).
197 See Bob Egelko, Many Illegals Can Be Jailed Indefinitely: Ashcroft Rules That Granting Bail Could Threaten National Security, S.F. Chron., Apr. 25, 2003, at A3. According to Ashcroft: “In light of the terrorist attacks of Sept. 11, 2001, there is increased necessity in preventing undocumented aliens from entering the country without the screening of the immigration inspections process.” Id.; see also Margaret Taylor, Dangerous by Decree: Detention Without Bond in Immigration Proceedings, 9 Bender’s Immigration Bulletin 906, 915 (2004).
198 Alva James-Johnson, U.S. Deports Haitian Amid Anger, Fort Laud. Sun-Sentinel, Dec. 1, 2004, at A29.
199 See Swarns, Illegal Aliens Can be Held, supra note 197.
200 Taylor, supra note 199, at 915 (citing D- J-, 23 I. & N. Dec. 572 (Atty. Gen. 2003)).
201 Id.
202 D-J-, 23 I & N. Dec. at 580.
203 Simcox, supra note 113, at 31–36.
204 Id. at 37–42.
205 See Michael C. LeMay, From Open Door to Dutch Door: An Analysis of U.S. Immigration Policy Since 1820, 111, 114–15 (1987); Peter H. Schuck, Citizens, Strangers and In-Betweens 12 (1998). Several scholars, particularly those critical of expansive rights for immigrants, have characterized the 1950s, 1960s, and 1970s as a time of liberal immigration policies that in addition to granting illegal immigrants limited due process rights, also generally favored family reunification for naturalized citizens and resident aliens, and broader admission of refugees accompanied by public subsidy and resettlement benefits. See, e.g., LeMay, supra, Schuck, supra.
206See LeMay, supra note 207, at 111, 114–15; Schuck, supra note 207, at 12.
207 Wayne Lutton & John Tanton, The Immigration Invasion 61 (1994).
208 They are held in local jails or federal immigration prisons, both of which house criminal suspects. Additionally, the must wear prison garb, are subjected to searches on a daily basis, and are disciplined for failing to follow the rules.
209 Department of Homeland Security Transition: Bureau of Immigration and Customs Enforcement, Hearing before the House Subcommittee on Immigration, Border Security and Claims of the House Judiciary Committee, 108th Cong. 7-9 (Apr. 10, 2003) (statement of Asa Hutchinson, DHS Undersecretary for Border and Transportation Security, describing ICE’s interior immigration law enforcement strategy as identifying, apprehending and removing criminal aliens who threaten the safety and security of the nation), available at http://frwebgate.access.gpo.
gov/cgi-bin/useftp.cgi?IPaddress=162.140.64.128&filename=86409.pdf&directory=/disk5/
wais/data/108_house_hearings.
210 See, e.g., Dalton Police Department, Criminal Alien Task Force �� 1–3, at http://
police.citydalton.net/insTaskForce.htm (last visited Nov. 21, 2004). For example, a joint task force venture between the police department in the small town of Dalton, Georgia and the local INS office, characterizes the mission of the task force as “the investigation and prosecution of criminal aliens in the Dalton area.” Id. � 1. Agreeing to conceal the identities of those reporting illegal aliens and criminal aliens, the Dalton officials reassure residents that “the Criminal Alien Task Force appreciates your assistance in the fight against crime involving aliens.” Id. � 3. From this language, one gets no sense of the noncitizen with a criminal conviction in her past, but instead gets a very keen sense of the criminal alien as an ongoing threat to the safety of the community in Dalton, Georgia. The text on their website also fails to distinguish illegal aliens from criminal aliens, thus implying that all are subject to deportation when, in fact, only some criminal aliens are deportable. See generally id. So, in effect, the term “criminal alien” categorizes a broad population as a present law enforcement risk despite the fact that (1) a past conviction does not predict to present dangerousness, and (2) that some aliens with past convictions, mostly misdemeanants, are not subject to deportation.
211 Improving Homeland Security, Department of Homeland Security Homepage � 1, at http://www.whitehouse.gov/homeland/ (last visited Dec. 4, 2004).
212 U.S. Immigrations and Customs Enforcement, Organization � 2, at http://www.
ice.gov/graphics/about/organization/index.htm (last visited Nov.21, 2004).
213 Most Wanted List of Criminal Immigrants Released, Milwaukee J. & Sentinel, May 16, 2003, at 16A (“Homeland Security officials argued that the renewed effort would be more successful, since their newly consolidated department has the combined personnel, databases, and expertise of the Customs Service and the INS, which no longer exists on its own.”).
214 Press Release, U.S. Department of Homeland Security, Bureau of Customs and Immigration Enforcement, Local ICE Officers Arrest ‘Most Wanted Criminal Alien’ � 3 (May 14, 2003), available at http://USCIS.gov/graphics/fieldoffices/chicago/most_wanted.pdf.
215 Alvarez-Machain v. United States, 331 F.3d 604, 608-09 (9th Cir. 2003), rev’d, Sosa v. Alvarez-Machain, 124 S. Ct. 2739 (2004), vacated, Alvarez-Machain v. United States, 374 F.3d 1384 (9th Cir. 2004).
216 Nina Totenberg, Alien Tort Act (National Public Radio broadcast, Mar. 30, 2004).
217 Alvarez-Machain, 331 F.3d at 609.
218 See id. at 604–05.
219 Jonathan Bush, How Did We Get Here? Foreign Abduction After Alvarez-Machain, 45 Stan. L. Rev. 939, 941 n.9 (1993).
220 28 U.S.C. � 1346(b)(1) (1997).
221 28 U.S.C. �1350 (2000).
222 Totenberg, supra note 218.
223 Sosa v. Alvarez-Machain, 124 S. Ct. 2739, 2769 (2004).
224 Stephen Yale-Loehr, U.S. Immigration Law Overview, in Basic Immigration Law 2003: PLI. Corporate Law and Practice Course Handbook Series 37 (2003) (“[I]mmigration law is one of the most complicated areas of U.S. law, second perhaps only to tax law in complexity.”).
225 Earl Johnson, Jr., Organized Crime Challenge to the American Legal System, Part II: The Legal Weapons: Their Actual and Potential Usefulness in Law Enforcement, 54 J. Crim. L. Criminology & Police Sci. 1, 16 (1963) (“Tax fraud has been the charge most generally employed by the federal government in seeking to send management-level organization members to federal prisons.”).
226 Id.
227 Id. (“[S]uch jurisdiction as the federal government does enjoy in the area of organized crime is exercised primarily through prosecuting the men of organized crime for violations of federal criminal laws not directly related to the organization’s activities.”).