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How 911 Created ICE IN 2001
From:
Peggy Sands Orchowski -- Immigration Expert Peggy Sands Orchowski -- Immigration Expert
Washington, DC
Thursday, September 11, 2025

 

 

How 911 created ICE IN 2001

By Margaret (Peggy Sands) Orchowski

I know many Americans are flummoxed, even upset and angry, about the sudden appearance of ICE immigration enforcement agents in well-known local working and gathering places of immigrants. It has resulted in the detention and threats of immediate deportation of dozens of people, some of whom have been here for years.

 

How did we get to this – some call it a police state?

 

I have been a congressional correspondent for 20 years covering immigration and higher education in the U.S. Congress. I've written three books on how our immigration laws (and therefore immigration law enforcement) has evolved.  I find having some historical perspective really helps calm the exasperation and bewilderment that rapidly moving events impose.

 

The simple answer to the sudden focus of law enforcement on those in the country illegally, is because times and conditions change. Laws are discretionary. What is tolerated in one era often changes in another. This is especially true about immigration enforcement.

 

There actually were no national immigration laws in the U.S. and therefore no immigration enforcement rules and agencies until the 1880s. After the civil war, the INS (the U.S. Immigration and Naturalization Services agency) as well as a central port of entry on Ellis Island in New York harbor were established. In 1924 Congress passed a comprehensive immigration act based on nationality quotas. In 1965 Congress passed the most liberal immigration law in the world, driven by civil rights and the Holocaust – the Immigration and Nationality Act of 1965. All these laws specified differences between lawful and unlawful immigration.  But to cross the border illegally – the first time--  only was considered to be a misdemeanor.  Over-staying an expired visa inadvertently – a civil violation.  

 

In the1980s as the numbers of illegal immigrants approached one million, tensions were building. Schools, hospitals and social services were feeling the strain (including in Santa Barbara).  The numbers increased after  SCOTUS declared that immigration status could not be used to decline K-12 school and emergency medical services to anyone in the U.S.  

 

In 1986, Congress passed an amnesty for all who had entered the US illegally before 1984 (estimated at 1 million, in fact over 3 million got it). The trade off was that law also made it illegal for employers to hire workers without legal work permits.  Overstaying legal visas, knowingly using false documents, being convicted of crimes from burglaries on up and especially ignoring court appearance and deportation orders, were to be considered to be deportable offenses.

 

But there was no agency charged to enforce these regulations. INS claimed enforcement wasn't part of their mission. The tension between immigration services and the need for enforcement was growing along with the numbers of millions of immigrants (about 11.1 million) who found they could enter the U.S. illegally and stay on expired legal vias with impunity.

 

Then the terrorist attack on the United States happened on September 11, 2001.  It was carried out by several teams of foreign nationals including unvetted foreign students. 

 

Suddenly the focus of immigration management became national security.  An entire new agency, congressional committees and a new presidential cabinet secretary position was created: the Department of Homeland Security.  It combined 22 existing national security agencies from cyber security and emergency relief to the Coast Guard. The CBP remained to control the border.  

 

The INS was dissolved and in its place were two new bureaus to handle the conflicting roles of immigration:  Customs and Immigration SERVICES (CIS) and the U.S. Immigration and Custom ENFORCEMENT (ICE) – the first agency ever in U.S. history charged with enforcing immigration laws INSIDE the US including expired temporary permits and employer violations.

 

That 911 caused the creation of ICE and other enhanced immigration enforcement measures is understandable – especially the digital foreign student and exchange visitor information system (SEVIS) connected to the FBI and ICE that all U..S. colleges are now required to use.  When the surge of unvetted border crossers from 2022-24 increased the number of illegal immigrants living in the U.S. to over 17 million, American voters agreed that the new president should end illegal immigration. But most Americans did not realize that included many of the house cleaners, gardeners and neighbors they all esteem.

 

Now it's up to Congress.

 

 

Two books on immigration by Margaret Orchowskj are available on Amazon: 

"The Law That Changed the Face of America: The Immigration and Nationality Act of 1965"  -- the story of the most liberal immigration law in the world and how it made the United States the most successful Nation of Immigrants in history. And

"The Five Things Everyone Should Know About Immigration – confronting confusion" a 60-page reporters'-notebook-style book about immigration's basic facts including who is an immigrant? What is the major differences between asylees and refugees? Why have immigration laws? Why ICE?

 

Jan. 27, Georgetowner online                     ESSAY about birthright citizenship.                        645 words

Executive Order Intends io Limit Birthright Citizenship, Not End It

By Margaret Orchowski

Please don’t panic or exaggerate the birthrights citizenship executive order. The much expected EO does not end birthright citizenship. It limits it. That does not take a constitutional amendment.  In fact it’s been changed by Congress and by a Supreme court decision several times in the past.

Here's the first sentence of the 14th amendment:: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” 

The definitive word in that sentence is AND!  If the framers wanted anyone and everyone born in the US to be citizens they would not have added an “and” clause, AND means (if you recall grammar lessons) also, plus, as well as. 

 As you can see, the first sentence of the 14th amendment states clearly that anyone claiming birthrights citizenship must fulfill TWO CONDITIONS:

1.     Be born in the United States

2.     Be subject to the jurisdiction of the United States.

The order would make ineligible for birthright citizenship anyone born in the U.S. whose parents have no lawful or legal authorization to be here or who are in the US on limited, temporary non-immigration permits such as foreign students and tourists.  

Changing who is eligible or not for birthrights citizenship has actually happened in the past via Congressional legislation and also a ruling of the Supreme Court.  In addition, Trump’s executive order reflects at least 15 years of proposals considered by Congress, one as HR1 (in the 112thCongress.

The 14th amendment was ratified on July 9, 1868 to “rightly repudiate the Supreme Court of the United States’s shameful decision in Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), which misinterpreted the Constitution as permanently excluding people of African descent from eligibility for United States citizenship solely based on their race”, as stated in Trump’s executive oder.  There were no national immigration laws until the 1880s; hence the amendment at the time did not address legal permanent, temporary or illegal immigration status of the birth parents.

But in 1868, according to the Congressional Research Office, there were FOUR defined groups of people in the United States who were NOT considered to be under the jurisdiction of U.S. laws and whose birth children were not allowed citizenship nor the right to vote.  

The jurisdictional status of two of these groups were changed over time.  The children of legal permanent Chinese immigrants were ruled by the Supreme Court in 1898 in U.S. vs. Wong (a very narrow ruling) to be under the jurisdiction.  In 1921 American Indians born and raised in a recognized Indian Nation were given the right to vote and hence citizenship by Congress in the 1921 Indian Voting Rights Act.

But two other groups remain excluded to this day: 

1)     the children of diplomats to the U.S, with immunity from U.S. laws; and 

2)     a rather nebulous universal rule according to the U.S., Congressional Research Office that the children born of recognized invaders are not under the jurisdiction of the invaded state.

Since 2010, Congress has addressed proposals to exclude birthright citizenship from TWO additional groups:  

1) children born of birth tourists (visitors who come on a three month permit with the sole purpose of getting citizenship for their child with no intention or right to immigrate and contribute to the U.S,) and 

2) children born of parents BOTH of whom are illegally in the country and have no right to be here,  In 2011 this 2 page bill was HR1 in the new Republican dominated 112th congress.

Clearly President Trump’s executive order is not new, unconstitutional nor in any way racist. Read it here (2+ pages only) .  https://www.whitehouse.gov/presidential-actions/2025/01/protecting-the-meaning-and-value-of-american-citizenship/

It may however be challenged and perhaps decided by the Supreme Court, for instance on whether or not illegal immigrants are under the jurisdiction of the U.S. or not.

# # # # #

Margaret Orchowski is a credentialed Congressional reporter on immigration and author of two recent books (Nov 2024) on how immigration laws and policies evolved in the U.S.: “The 5 Basics Everyone should Know About Immigration” and a new paperback updated edition of “The law That Changed the Face of America” 

  

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Name: Peggy Sands Orchowski
Title: Senior Congressional Correspondent
Dateline: Washington, DC United States
Main Phone: 202-236-5595
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