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Abusing Immigration Law to Target Muslims

Posted: 05/18/11 11:26 AM ET

Imagine being thrown in jail in the United States for over four years, not because you had violated any laws, or even because the government thought you were about to commit a crime, but because government officials believed that you may engage in criminal acts at some point in the future. This is the story of Tareq Abu Fayad, a 24-year-old Palestinian who came to the United States in 2007 on a valid immigrant visa to be reunited with his family. And Abu Fayad doesn't stand alone. He is one of an untold number of Muslim immigrants deported, detained and denied immigration benefits on the basis of religious practices and associations, political beliefs and country of origin.

Upon arrival at San Francisco International Airport, Abu Fayad was denied entry into the United States when customs agents found material, including al Jazeera news stories and a 9/11 conspiracy theory video, downloaded on his laptop. The government never claimed that Abu Fayad had taken any action toward terrorist or criminal activity, but instead argued that he shouldn't be allowed within the United States because he is "likely to engage in terrorist activity" at some point in the future. This, despite Abu Fayad's repeated denunciations of terrorism. But the government's "expert" pointed to factors like his university education in computer science and clean criminal record as what made him an "exceptionally attractive target for recruitment" by Hamas, the militant group and political party that currently governs the Gaza Strip, where Abu Fayad grew up. These factors would likely subject any young Palestinian professional from Gaza to detention and deportation when entering the United States.

The government also pointed to Abu Fayad acquiring a green card as a reason to deny him entry. A green card, the government argued, would make him all the more alluring for terrorist recruiters. Given the way Muslim religious practice and political opinions critical of U.S. foreign policy have become markers for suspicion of terrorist activity, this logic creates a dangerous precedent for denying Muslims legal immigration status.

In 1984, George Orwell had Big Brother, thoughtcrime, newspeak and memory hole. The Tom Cruise flick Minority Report had Precrime, a specialized police force that apprehended individuals before the government suspected any criminal activity. Now more than ever, with an expansive set of laws and policies encouraging mass surveillance, information- sharing and unchecked enforcement, 1984 and Minority Report are less reminders of what could be, and more markers of where we are. For Muslim, Arab and South Asian communities, the results have been devastating.

Abu Fayad is only one of many Muslim immigrants since 9/11 who have been arrested, detained, deported and denied visas, green cards and citizenship based on similarly dangerous logic, false and unsubstantiated terrorism-related allegations. Last week, the Center for Human Rights and Global Justice (CHRGJ) at NYU School of Law and the Asian American Legal Defense and Education Fund (AALDEF) released a Briefing Paper, entitled Under the Radar: Muslims Deported, Detained, and Denied on Unsubstantiated Terrorism Allegations, demonstrating how the U.S. government has abused the immigration legal system in a way that discriminates against Muslim immigrants and violates international human rights law.

Since 9/11, the federal government has relied heavily on immigration law and policy to prosecute the so-called "War on Terror." With fewer checks and balances, it is much easier to arrest, detain and investigate an individual under immigration law than criminal law. Unlike the criminal legal system, in immigration court, an individual is not guaranteed an attorney, a right to a speedy trial in front of a jury of his peers or the necessity to prove guilt beyond a reasonable doubt in front of an independent judiciary.

While these lesser substantive and procedural protections have led to increased detentions and deportations nationwide, devastating immigrant communities from all racial, ethnic and religious backgrounds, they have also allowed federal officials to undertake several initiatives that have targeted Muslim immigrants in the name of national security. Under the guise of executing the nation's immigration laws, Muslim non-citizens have been subjected to large-scale, secret, and often lengthy preventive detention; exclusion based solely on their political views; guilt by association; unilateral detention by the executive branch; and nation- wide national security policies that have amounted to little more than wide-scale racial profiling, such as the National Security Entry Exit Registration System special registration policy. Although NSEERS was recently suspended, the program led to the detention and deportation of almost 14,000 men, and the ongoing devastation of thousands of Muslim families.

The government continues to use subtler -- though no less abusive -- practices, drawing on the vulnerability of immigrant status in the United States. Take Zuhair Mahd, a blind adaptive technologies specialist, for example. He applied for citizenship in 2004, and successfully completed his interview shortly thereafter. But then, while his naturalization application languished for years due to the mysterious Federal Bureau of Investigation name check process, the FBI visited him on multiple occasions. The FBI interrogated Mahd about his immigration status, political views and more. They repeatedly requested that he work for the FBI as an informant. On one occasion, the FBI explicitly offered to help Mahd with his naturalization application if he agreed to cooperate. Mahd consistently refused. And in 2007, U.S. Citizenship and Immigration Services denied his naturalization application. Eventually, after five years and a pro se lawsuit, USCIS reversed its decision and in 2009 Mahd was sworn in as a U.S. citizen.

Mahd's is only one of many cases in which the FBI has tried to take advantage of the vulnerable immigration status of Muslim non-citizens to coerce them into becoming informants. This practice is particularly troubling considering how the FBI has expanded its use of informants to not only gather information on Muslim communities, but also attempt to entrap Muslims in an effort to increase terrorism convictions nationwide.

When overbroad counterterrorism policies manifest in the immigration context -- where there is a void of checks and balances and a fundamental lack of transparency -- there is all the more potential for government abuse. The overall effect of the practices identified in our Briefing Paper is that religious, cultural and political affiliations and lawful activities of Muslims are being construed as dangerous terrorism-related factors to justify detention, deportation and denial of immigration benefits. The government seems to be targeting Muslim immigrants not for any particular acts, but on the basis of unsubstantiated innuendo based largely on their religious and ethnic identities, political views, employment histories and ties to their home countries.

The practices raise serious human rights concerns. The United States is failing to uphold its international human rights obligations to guarantee the rights to due process; liberty and security of person; freedom of religion; freedom of expression and opinion; and the right to privacy and family. The past ten years have unfortunately been marked by vulnerability and discrimination against Muslim, Arab and South Asian communities in the United States. With the death of Osama bin Laden, let's hope that the United States can enter a new era where Muslim immigrants are treated with the fairness and dignity that is owed to all.

Amna Akbar is the Senior Research Scholar & Advocacy Fellow at the Center for Human Rights and Global Justice at NYU School of Law. Sameer Ahmed is a Skadden Fellow and Attorney at the Asian American Legal Defense and Education Fund. You can read the CHRGJ/AALDEF Briefing Paper at Under the Radar: Muslims Deported, Detained, and Denied on Unsubstantiated Terrorism Allegations.