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584 LEGISLATION AND PUBLIC POLICY [Vol. 11:567
try unlawfully. 98 Courts have permitted the consideration of Asian
appearance as one of many factors to justify interrogation by immigration
enforcement officers. 99 An enforcement policy in Portland, Oregon,
that targeted Asian tourists in order to ask them about their
immigration status resulted in a major airline cancelling direct flights
from Japan to the newly nick-named “Deportland.” 100
Additionally, Middle Easterners and South Asians have been profiled
as terrorists and have received disparate treatment because of
their racial appearance. 101 This treatment intensified after September
11, 2001. 102 For example, the government adopted a “hold until
cleared” policy that resulted in Middle Eastern men being held in extreme
detention conditions, sometimes for months after the point at
which they could have been deported, so that the FBI could confirm
that they were not suspected of terrorist activities. 103 Middle Easterners
and South Asians have also been profiled at airports and sub-
98. Johnson, Challenging Racial Profiling, supra note 29, at 349–50 (describing R
incidents where African American citizens have been detained and strip-searched at
airports by immigration officers who accused them of having false immigration documents
or of not being U.S. citizens).
99. See Cheung Tin Wong v. INS, 468 F.2d 1123, 1127–28 (D.C. Cir. 1972); In re
King & Yang, 16 I. & N. Dec. 502, 504–05 (BIA 1978).
100. Johnson, Challenging Racial Profiling, supra note 29, at 352. R
101. Id. at 351 & n.56.
102. Susan M. Akram & Kevin R. Johnson, Race, Civil Rights, and Immigration
Law After September 11, 2001: The Targeting of Arabs and Muslims, 58 N.Y.U. ANN.
SURV. AM. L. 295, 295–96 (2002).
103. These conditions included being “smashed into walls, repeatedly stripped and
searched, and often denied basic legal rights and religious privileges.” Richard A.
Serrano, 9/11 Prisoner Abuse Suit Could Be Landmark; Rounded Up, Muslim Immigrants
Were Beaten in Jail, L.A. TIMES, Nov. 20, 2006, at A1. Eighty-four of the
estimated 1200 September 11 detainees were held in the Metropolitan Detention
Center in Brooklyn, New York, where they “were held under the most restrictive
conditions possible, which included lockdown for at least 23 hours per day, extremely
limited access to telephones, and restrictive escort procedures any time the detainees
were moved outside their cells.” OFFICE OF INSPECTOR GEN., U.S. DEP’T OF JUSTICE,
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 157 (2003), available at http://www.usdoj.gov/oig/special/0306/full.pdf
(internal quotations omitted). Of the 762 September 11 detainees whose cases the
Inspector General reviewed, about 33% were from Pakistan, 15% were from Egypt,
and most others were from other Middle Eastern countries. Id. at 21. The legality of
the “hold until cleared” policy and the conditions of September 11 detainees’ detention
is currently being litigated. See Iqbal v. Hasty, 490 F.3d 143, 177–78 (2d Cir.
2007) (denying defendants’ motion to dismiss all of plaintiff’s claims except for procedural
due process), petition for cert. filed, 76 U.S.L.W. 3499 (U.S. Mar. 7, 2008)
(No. 07-1150); Turkmen v. Ashcroft, No. 02 CV 2307 (JG), 2006 U.S. Dist. LEXIS
39170, at *2–4 (E.D.N.Y. June 14, 2006) (dismissing plaintiffs Fourth Amendment
and Fifth Amendment claims but preserving conditions claims), appealed and argued
before the Second Circuit, Feb. 14, 2008.