Over the past month, the Immigration and Naturalization Service has detained more than 500 men from Pakistan, Syria, Sudan, and 17 other nations suspected of harboring terrorists. According to the New York Times, the majority of them are being held for violating their visas. What are the laws governing expired visas?
Contrary to press reports, visas aren't really the issue here. A visa, which is issued by the State Department, merely entitles a person to apply for entry at the border; immigration lawyers often compare visas to the "Now Serving" tickets issued to bakery customers that determine their spots in the queue. It is the INS that decides a visitor's "status," or how long they'll be permitted to stay in the United States, a figure usually noted in a form called an I-94. Not all visitors are given fixed times; many foreign students, for example, are allowed to stay as long as they're taking a full course load at an accredited college or university.
The detainees in question are referred to as "out-of-status," meaning they've run afoul of the stipulations noted in their INS documents. The INS has the right to detain anyone who has fallen out of status, though they treat each violation on a case-by-case basis. Before the 9/11 attacks, the service was lenient with many visitors who'd overstayed their welcome less than six months, provided the violator in question was taking some action to remedy the situation. In addition, out-of-status visitors with pending green-card applications were often left alone.
Rocked by charges that several of the 9/11 hijackers had obtained driver's licenses despite being out of status, the INS is now cracking down on violations, especially those committed by natives of nations where terrorists ostensibly reside. (Although it should be noted that some more Westernized immigrants have suffered, too; British actor Steven Berkoff, who appeared in Beverly Hills Cop and Octopussy, was deported as part of an immigration dragnet.) Once detained, an out-of-status visitor has a right to a bond hearing. Unless the government can prove the detainee has criminal tendencies or is a flight risk, the court is supposed to grant reasonable bail. The detainee also has the right to an attorney, though not a court-appointed one.
Rather than face a deportation hearing, many out-of-status visitors agree to a "voluntary departure," in the hopes that they can re-enter the United States at some later date. If a visitor is officially deported, they are usually considered persona non grata in the U.S. for a minimum of five years.
One way out of the immigration bind is to request political asylum, though strict laws govern such applications. Visitors, regardless of status, have one year from their date of entry to request asylum, unless they can prove that the relevant circumstances have changed dramatically—for example, that their country of origin has become more dangerous for members of the seeker's racial, religious, or political group. Their cases are heard before an immigration judge and, like removal proceedings, they have the right to an attorney but not a court-appointed one. Even then, it's something of a crapshoot; less than 40 percent of asylum requests are granted.
Explainer thanks Daniel Kanstroom of Boston College Law School and Greg Siskind of Siskind, Susser, Haas & Devine.