Yesterday, at an event at the conservative Hudson Institute, former Department of Homeland Security Secretary Michael Chertoff suggested that trying terrorists in the U.S. could give them special rights under immigration laws that would prevent the government from deporting them:
Sometimes they [alleged terrorists] raise legal objections to going back and you can’t send them back. Our position was and I believe it to be true, you don’t want to bring them to the United States. Once you bring them into the United States soil, they will have a set of rights under the immigration laws that could well put you in a difficult position of being ordered to release somebody and not being able to deport them. I think the last thing we want to do is import terrorists into the U.S.
The concerns Chertoff has expressed aren’t new amongst Republicans . Back in November, Sen. John Cornyn (R-TX) drilled Atty. Gen. Eric H. Holder Jr. on whether alleged 9/11 plotters will have an immigration status or be able to apply for asylum if and when they are tried in the U.S. At the time, Holder seemed baffled by Cornyn’s line of interrogation and said that he would get back to him with more information.
It’s unclear whether Holder ever responded to Cornyn’s fear-mongering, however, immigration experts from the National Immigration Law Center informed the Wonk Room that detainees would most likely be brought to the U.S. but kept in custody on criminal charges — without an immigration status. In the extremely unlikely event that they are acquitted, they could still be kept in custody and put in removal proceedings.
It’s even more implausible that suspected 9/11 plotters would be granted asylum — let along a green card — if they are found innocent. Syracuse University further points out that there’s a common misconception that the U.S. asylum system is abused by people who endanger national security. However, “asylum applications are subject to stringent review procedures by adjudicators in the Department of Homeland Security and the Department of Justice and to rigorous background and security checks.” Terrorism concerns essentially lead to an automatic disqualification from asylum and immediate deportation.
In fact, a study by Human Rights First showed that immigration law has instead created a situation in which refugee and asylum seekers who pose no risk to the U.S. are unfairly denied U.S. residency due to the “pervasive, unintended consequences of the ‘terrorism’ provisions in the Immigration and Nationality Act.”