Introduction
By Daniel Kanstroom
Human Rights magazine expresses its extreme gratitude to Ms. Kathi J. Pugh, Human Rights editorial board member, for coordinating this special issue on immigration. We also thank Mr. Stephen J. Wermiel, Human Rights editorial board member; Mr. Lucas Guttentag, Immigrants' Rights Project, American Civil Liberties Union; and Ms. Leti Volpp, American University, Washington College of Law, for their invaluable assistance.
In New England, those who don't like the weather are sometimes advised simply to wait an hour. With the election of Bill Clinton, many who didn't like the rather incoherent, often harsh and somewhat ideologically-biased state of U.S. immigration law thought the hour of change had arrived. This was true, but the direction was, to say the least, unexpected. In April 1996, one year after the Oklahoma City bombing, President Clinton signed into law the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) (Pub. L. 104-132, 110 Stat. 1214). A few months later, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) (Pub. L. 104-208, 110 Stat. 3009, September 30, 1996) was enacted. Together, these laws constituted one of the most comprehensive revisions of U.S. immigration law ever undertaken. They rank among the most strenuous attacks on the rights of noncitizens and the legal structures designed to protect those rights that our nation has ever seen.
Vigorous enforcement of these laws by the Immigration and Naturalization Service (INS) has subjected thousands of noncitizens and their families to unfathomably harsh treatment by government agents. Deportation grounds were made retroactive, so people are now deported for conduct that did not violate immigration law when it occurred. INS detention was made mandatory for various types of cases, so people-including many who have been lawful permanent residents since early childhood-have been incarcerated with no right to bail and no realistic hope of release. Some INS prisoners have been shipped off to detention facilities in distant parts of the country, far from their homes and families. Others have been held in local jails under deplorable conditions, mixed in with violent criminals. Asylum seekers have been turned away at the border or incarcerated while they await decisions on their cases. Relief from deportation was drastically curtailed, so deportation now is virtually an automatic sanction for even minor offenses.
Fortunately, due to the efforts of many activists, scholars, lawyers, and politicians, some of the worst aspects of these laws have been ameliorated and others appear ripe for change. The articles in this special issue of Human Rights are wonderful examples of this work to which one can only hope the new administration and Congress will pay heed. They represent an eloquent and wide-ranging indictment of the current state of U.S. immigration policy.
Donald Kerwin's and Wendy Young's poignant descriptions of the plight of asylum-seekers and refugee children in INS detention, Kevin Johnson's powerful case against race profiling in immigration law enforcement, Karen Musalo's analysis of the consequences of so-called expedited removal, and Charles Weisselberg's historical overview of INS long-term detention and incarceration of noncitizens demonstrate the centrality and interconnectedness of these issues for us all. Similarly, Lydia Brashear Tiede describes the substantial legal hurdles still faced by battered immigrant women, while Scott Titshaw reminds us of the indefensible but deeply entrenched biases against gay and lesbian families that have long been a part of our immigration laws.
Gerald Neuman's and Lucas Guttentag's descriptions of statutory limitations on judicial review and what has been aptly termed the "assault" on habeas corpus, together with David Cole's indictment of INS use of secret evidence in deportation hearings, are powerful critiques of the strange, oppressive variant of the rule of law that has emerged in immigration practice. The otherwise bleak picture of the legal landscape is lightened a bit, however, as Carol Leslie Wolchok describes some ongoing legislative efforts to change current immigration policy and Kristen Rosati offers important insights into how the U.S. implementation of the Convention Against Torture can ameliorate some of the harshness of current immigration law enforcement.
It is both timely and appropriate that these articles appear in Human Rights as U.S. immigration law is in a state of significant ferment. A number of important immigration law cases are currently before the U.S. Supreme Court. The Court has recently agreed to hear two cases-St. Cyr v. INS (229 F.3d 406 (2d Cir. 2000)) and Calcano-Martinez v. INS (232 F.3d 328 (2d Cir. 2000))-concerning judicial review of removal orders and whether AEDPA and IIRIRA eliminates eligibility for so-called 212(c) relief retroactively. The Court will also decide two cases involving the Attorney General's authority to continue detention of noncitizens after the end of a statutorily mandated removal period: Zadvydas v. Underdown (185 F.3d 279 (5th Cir. 1999)) and Ma v. Reno (208 F.3d 815, 822 (9th Cir. 2000)). The decisions in these cases will likely affect the future state of immigration law profoundly.
The ABA has taken a significant leading role in this arena, through its Coordinating Committee on Immigration Law, its Immigration Pro Bono Development and Bar Activation Project, and other initiatives. These efforts derive from the understanding that immigration law is much more than simply the regulation of our country's demographics. In many ways, it is the defining concept of our nation, the repository of some of our most cherished ideals, a fulcrum upon which government power is brought to bear against the most vulnerable, the most rightless, the most hidden. For these reasons, IRR's Immigration Task Force and Responsibilities will play an active role in future law reform efforts, as we focus our attention on the rights of noncitizens, especially children, and the restoration of proportionality, dignity, and compassion to the rule of immigration law.
Daniel Kanstroom is chair of the IRR Immigration Task Force. He is an associate clinical professor of law at Boston College Law School and director of the Boston College Immigration and Asylum Project.
