Copland and Brenner

Table of Contents

1. E-filing Becomes A Reality
2. Inspector General Audit Slams Detention Practices

1. E-filing Becomes A RealityAs we reported last month, the Department of Homeland Security (“DHS”) has published an interim rule in the Federal Register authorizing electronic filing of applications for employment authorization and replacement green cards. On May 29, the Bureau of Citizenship and Immigration Services (“BCIS”) issued a press release announcing implementation of the rule, a list of frequently asked questions (FAQ’s), and a fact sheet regarding online services. In addition, the two forms (I-765 and I-90) became available on the BCIS web site, at www.immigration.gov/graphics/formsfee/forms/eFiling.htm.
   
   Those considering e-filing should note the following items, many of which appear on the BCIS Introduction to Electronic Filing:
   
   - Adobe Acrobat is the format used for the online forms and is generally easily downloaded if not already on a user’s computer; Adobe Acrobat Reader version 5 is recommended
   - Netscape 4.7 or higher, or Internet Explorer 5.0 or higher are recommended
   - persons residing outside the U.S.A. cannot file electronically
   - fees must be paid from a personal or business checking or savings account only; credit and charge cards are not accepted at this time
   - persons seeking a waiver of the filing fee may not file electronically
   - I-90 applicants whose green cards were issued prior to age 14, and who have reached their 14th birthday, may not file electronically
   - there are several categories of nonimmigrants who are ineligible to e-file Form I-765, including legalization temporary residents; Temporary Protected Status (TPS) holders from Angola, Burundi, El Salvador, Liberia, Montserrat, Sierra Leone, Somalia, and Sudan; LIFE legalization applicants, certain NACARA applicants, and those under deferred action
   – when using the e-filing option, one of the initial fields requires the person completing the form to indicate whether he/she is (a) the applicant, (b) a person assisting the applicant, (c) a qualified attorney, or (d) an organization representative
   - the American Immigration Lawyers Association (“AILA”) has been advised that an attorney’s notice of appearance “will be part of each application process, where the [notice of appearance] will be associated automatically depending on the response provided by the applicant on one of the E-filing questions.” (Posted on AILA Infonet at Doc. No 03052941, May 29, 2003)
   - an e-filing session may “timeout” after 15 minutes of inactivity; since an incomplete application cannot be saved it is advisable to be prepared when using the e-filing option
   - proper preparation includes having one’s alien (“A”) number, bank account, I-94, and most recent date and port of entry information available
   - an application must be fully completed in order to be accepted
   - an applicant’s full legal name must be used in completing an application
   - before filing, an applicant must verify that the appropriate fee is provided
   - any application must be certified as valid (this is done by checking a box on the form)
   - a copy of any application must be printed and signed by the applicant and any representative
   - once accepted for filing, a Confirmation Receipt containing a receipt number will be generated; this must be printed and retained by the applicant/representative
   - in most cases, the completed application and the Confirmation Receipt should both be saved to the hard drive of the computer used to complete the application
   - an application should not be saved to the hard drive of a public-use computer such as those at libraries and internet cafes; in such cases an application should be saved to a floppy disk or CD
   - a paper receipt notice (the familiar Form I-797) will be generated by the appropriate BCIS office for processing
   - if additional evidence is required to process an application, it must be filed with a copy of the Confirmation Receipt to the address set forth on that receipt
   - the BCIS National Customer Service Center must be called (800-375-5283) to arrange a time to appear at an Application Support Center for processing
   - no application can be approved until the applicant appears at an Application Support Center, where a digital photograph, signature and fingerprints will be collected
   - BCIS offices in Charleston, SC; Jackson, MS; New Orleans, LA; St. Croix, VI; and Yakima, WA do not take digital biometrics; therefore, applicants in those areas should consider their willingness to drive “to another location that may be several hours” from home for the required data collection
   - when appearing for such data collection, any applicant must have a copy of his/her Confirmation Receipt available
   - I-90 applicants must also bring two copies of their completed application
   - once approved, the employment card or green card will be mailed to the applicant
   
   We note that e-filing is currently an alternative, not a requirement. The traditional means of filing paper applications continues to be available. Given the necessity of collecting digital photographs, signatures and fingerprints for Forms I-765 and I-90, the current e-filing alternative hardly seems to be a time-saver or to otherwise streamline the process. Nonetheless, e-filing is a significant development which, we hope, portends great things for the future.
   
2. Inspector General Audit Slams Detention PracticesOn June 2, 2003 the Inspector General of the Department of Justice (“DOJ”), Glenn A. Fine, issued a report titled 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 (“Report”). While noting that “nearly all of the 762 aliens we examined violated immigration laws,” the long-awaited Report is highly critical of the length and conditions of confinement (lack of access to legal representation and medical care, and allegations of abuse by correctional officers) accorded many of those detainees. Alleged abuses had been the subject of numerous complaints, including those by Amnesty International and the Lawyers Committee for Human Rights.
   
   Behind the arrest and detention of the affected aliens was the massive investigation of the Federal Bureau of Investigation (“FBI”), undertaken immediately after the attacks and named PENTTBOM (an acronym for “Pentagon/Twin Towers Bombings”). The purpose of the investigation was to identify the terrorists who had hijacked the planes and those who assisted the hijackers.
   
   On September 17, 2001, Attorney General John Ashcroft “directed the FBI and other federal law enforcement personnel to use ‘every available law enforcement tool’ to arrest persons who ‘participate in, or lend support to, terrorist activities.’” That same day, the Report notes, regulations of the Immigration and Naturalization Service were amended to increase from 24 to 48 hours the period of time within which charges against an alien were to be made. The revised regulation included a new exception, authorizing a delay in making charging decisions for “a reasonable period of time” in “extraordinary circumstances” – neither of which was defined.
   
   The Report notes that the regulation included “no requirement with respect to when the INS must notify the alien or the Immigration Court about the charges – that is, when the [charging document] must be served on the alien. The regulation only addresses the timing of when the INS must make its charging determination. The INS does not record the date or time the charging determination is made.” (emphasis in original) As the Introduction to the Report states, “[o]ne of the principal responses by law enforcement authorities after the September 11 attacks was to use the federal immigration laws to detain aliens suspected of having possible ties to terrorism.”
   
   The audit was conducted by the Office of the Inspector General (“OIG”) largely at two detention facilities: the Metropolitan Detention Center in Brooklyn (“MDC”), and the Passaic County Jail in Paterson, New Jersey (“Passaic”), over a one-year period from March 2002 – March 2003. The reasons for this focus were twofold: together, those two facilities housed 475 of the detainees, and many media reports alleged abuses at those facilities.
   
   Generally, the report notes, “[d]etainees housed at the MDC [ ] experienced much harsher confinement conditions than those held at Passaic,” including 23-hour lockdown, “four-man holds during movement,” video recording of all movement, cell illumination for 24 hours per day and restricted access to phones, visitors, and legal counsel. The Director of the Bureau of Prisons (“BOP”) told the OIG that officials in the Deputy Attorney General’s Office “wanted the BOP to limit, as much as possible within their lawful discretion, the detainees’ ability to communicate with other inmates and with people outside the MDC.”
   
   Perhaps in its efforts to achieve these communication restrictions, “[t]he BOP initially classified all September 11 detainees it housed as Witness Security” inmates. Ironically, such a move is typically made when an inmate has agreed to cooperate with law enforcement efforts. In such cases, an inmate is protected in part by making his whereabouts and other information unavailable through the BOP’s National Locator System. In the case of the 9/11 detainees, the move “resulted in MDC officials withholding information about the detainees’ status and location” – from family members, attorneys and even law enforcement officials.
   
   Another factor causing hardship to the detainees involved a “hold until cleared” policy, which “was not memorialized in writing,” and “the exact origins” of which could not be determined. While such a policy can be understood given the level of concern following the terrorist attacks, the Report states that the DOJ directed that the INS would remove a detainee from the “special interest” only after receiving a letter from FBI headquarters “stating that the FBI [had] no investigative interest in the detainee.” However, “[a]ny illegal alien encountered by New York City law enforcement officers following up a PENTTBOM lead – whether or not the alien turned out to have a connection to the September 11 attacks or any other terrorist activity – was deemed to be a September 11 detainee.” Since the FBI’s “centralized clearance process was slow and insufficiently staffed, [ ] many detainees were held for long periods of time while no clearance investigations were being conducted.” This failure, along with classifying the detainees as Witness Security inmates and a “no bond” policy for the 9/11 detainees, contributed to lengthy confinement for many of the detainees, during which contact outside the MDC was barred.
   
   Attached to the Report as Appendix K is an April 4, 2003 memorandum from Larry Thompson, Deputy Attorney General. The memorandum (included in the Report at the request of Mr. Thompson) states that “the detention of those illegal aliens suspected of involvement with terrorism was paramount” to its mission, and that “it is unfair to criticize the conduct of members of my staff during this period.” For his part, the Attorney General was quoted by in the June 6 edition of The New York Times as saying that “‘we make no apologies’ for holding suspects as long as necessary to determine whether they had links to terrorism,” even though none of the 9/11 detainees were charged as terrorists.
   
   Whatever one’s position regarding the arrest and detention of immigration violators following the 9/11 attacks, the tactic of using the Witness Security classification as a means of limiting communication even with legal counsel, foot dragging involved in the FBI-mandated clearances, and the inhumane treatment accorded many of the detainees are rightfully questioned. It may be true that, as the Attorney General says, “we did not violate the law.” But surely, the laws supporting the actions taken could have been less harshly imposed.
   
   The full report is available on the Office of the Inspector General web site, at www.usdoj.gov/oig/special/0603/full.pdf.