WASHINGTON – Most illegal immigrants can be jailed indefinitely without bond when national security risks exist, Attorney General John Ashcroft has declared in a legal opinion. Immigration advocates are calling that an abuse of power in the name of fighting terrorism.
The order means such aliens will not be released on bond while their cases are being decided by immigration judges if the government can show national security issues are involved.
"Such national security considerations clearly constitute a reasonable foundation for the exercise of my discretion to deny release on bond," Ashcroft said in the 19-page opinion, which was signed last Friday.
The opinion was requested by the Homeland Security Department, which now enforces most immigration laws, after the Board of Immigration Appeals upheld a judge's decision to release Haitian asylum-seeker David Joseph on $2,500 bond.
Cheryl Little, executive director of Florida Immigrant Advocacy Center, said Ashcroft's opinion is the latest in a string of government decisions "manipulating our very serious national security concerns to justify targeting nationals of Haiti." Advocates for Latino and Muslim immigrants made similar comments on behalf of their constituencies.
Ashcroft's opinion says the attorney general has broad discretion in determining the status of would-be immigrants. During an appearance Thursday in New Orleans, Ashcroft defended his decision and said aliens held without bond have the right to defend themselves in court. He said he would continue to seek new, legal ways to detain people suspected of terrorism.
Immigration advocates have been troubled by Ashcroft's continued influence over immigration policy after most of the nation's immigration apparatus was transferred to the Homeland Security Department March 1. Since then, Ashcroft has given the FBI, U.S. Marshals and local police authority to arrest people on immigration violations.
"As disturbing as this decision is, it's really not that surprising, because Ashcroft has managed to keep his finger in all the immigration-related pies and ensured he can exert his authority shoulder-to-shoulder with (Homeland Security Secretary) Tom Ridge," said Angela Kelley, deputy director of the National Immigration Forum.
In the David Joseph case, which prompted Ashcroft's legal opinion, the immigration judge and appeals board concluded they did not have authority to deny bond based on the national security concerns cited by the government, which has sought to detain more illegal immigrants since the Sept. 11 terror attacks.
Joseph was among the 216 Haitians who arrived in Miami by boat on Oct. 29, then leaped from the craft into Biscayne Bay and ran along a major causeway. The scene was captured live on television.
Little, whose group represented Joseph, said the appellate ruling questioned the Bush administration's decision to detain all Haitians.
A total 100 Haitians who arrived on the same boat as Joseph had been granted bond by judges. Ashcroft's decision also will affect them "and then some," Little said.
"It's a very sweeping decision. The attorney general has designated it as precedent setting, meaning it could apply to all previous decisions made regarding bond," she said.
Several federal agencies have opposed the release of the Haitians on bond, arguing it could trigger a wave of immigrants attempting to reach U.S. shores. That would overtax the strained Coast Guard, Border Patrol and other agencies and interfere with their anti-terrorism activities, the government said.
In addition, the State Department has warned that Haiti has become a staging point for non-Haitians considered security threats, including Pakistanis and Palestinians, to enter the United States.
The National Coalition for Haitian Rights said it will fight to overturn Ashcroft's order. Dina Paul Parks, the New York-based coalition's executive director, said the decision further erodes immigrants' legal rights.
"If you were lucky enough to get a sympathetic judge you could potentially get released on bond. Now even that prospect is taken away," she said.
Ashcroft's decision applies to all illegal immigrants except Cubans, who by law automatically are permitted to stay in the United States if they reach its shores.