Legal Victory for Airport Screeners | The Nation


Legal Victory for Airport Screeners

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On November 15, a federal judge handed nine airport screeners an unexpected victory in their legal battle against a law passed in the wake of September 11 that required citizenship for all airport screeners. But while the judge's action temporarily kept the law from affecting the nine plaintiffs, it did not force the government to reinstate more than 8,000 immigrant screeners who lost their jobs because of the requirement.

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Michael Flaherty
Michael Flaherty is a San Francisco-based writer.

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Admiral James Loy, the nation's top aviation security official, confirmed at an August 22 press conference what thousands of immigrant airport screeners have dreaded for nearly a year. Loy promised that the Transportation Security Administration would without question meet the Congressionally mandated deadline to replace America's 30,000-member screener force with government-trained federal employees.

For Loy to accomplish this task, the TSA must remove an estimated 8,000 immigrant screeners from security checkpoints by November 19 because they fail to meet the new citizenship requirement. "The law of the land is the law of the land," Loy replied, when asked how the TSA justifies the impending shakeout at a time when the agency is scrambling to train and place an additional 16,000 employees at airports nationwide over the next eleven weeks.

Indeed, Loy is merely obeying the demands of Congress. Signed into law following a post-September 11 flurry, the Aviation and Transportation Security Act created the TSA and charged the agency with placing airport security under federal jurisdiction. Section 111 of the ATSA requires US citizenship for all screeners, which sets the absurd precedent that immigrants can join the military (no citizenship required) but not scan sneakers at airline security posts.

Both the TSA and members of Congress offer careful replies when it comes to explaining the reasons for the citizenship requirement. An aide for Senator John McCain, one of the ATSA's main proponents, did not want to comment on the provision's rationale. The Justice Department, however, came close to touching on the truth in a motion to dismiss a lawsuit filed by the American Civil Liberties Union on behalf of nine screeners trying to keep their jobs. "It bears repeating that the ATSA was passed in the aftermath of an attack on the US by non-citizens, who penetrated the US aviation system," the motion stated.

The case, Gebin v. Mineta, names Transportation Secretary Norman Mineta and his former No. 2, John Magaw (who was replaced by Loy), as the defendants. Federal Judge Robert Takasugi promised a decision on the case in early June but still has not issued a ruling.

All nine plaintiffs are noncitizens, lawfully living in the country as permanent residents. The lead plaintiff, Jeimy Gebin, believes that her three years in the US Army should be enough to allow her to stay employed at Los Angeles International Airport. Erlinda Valencia, a leader of the San Francisco airport's screening force, is another plaintiff. Two years ago Valencia's security firm honored her when she detected a toy hand grenade and two weeks later, a loaded handgun. But federal attorneys argue that the government can do as it pleases with its "alien guests," and that Congress acted rationally when, in the interest of airport security, it required screeners to formalize
their "loyalty" and "commitment" through citizenship.

The situation between the government and immigrant screeners begs the comparison of Japanese-Americans who were fired from their jobs after the bombing of Pearl Harbor on Dec. 7, 1941, and were then herded into internment camps. Ironically, Secretary Mineta and Judge Takasugi were among those interned.

In addition to being unfair to immigrants, dismantling experienced screening units at the nation's 429 commercial airports could itself be a major security risk. By the November deadline, 80 percent of San Francisco International Airport's 915 screeners will be forced out of their jobs because they are not citizens. Washington-Dulles will also lose 80 percent of its existing force;
Los Angeles International Airport will lose 40 percent; and Miami
International Airport will lose 70 percent. Even worse, their replacements
are being whisked through the training process: one new screener working at the Norfolk, Virginia, International Airport told Alan Gathright of the San Francisco Chronicle that he received only fifteen minutes of explosive detection training. There is also the matter of how the remaining 40,500 screeners waiting to be hired will complete the federally mandated 100 hours of classroom and onsite instruction before they begin work in late November.

While it is true that most federal employees and civil servants must be US citizens, screeners arrived on the job without this requirement; and the ATSA does not "grandfather" exemplary workers into the applicant pool for a federal screening position. "I am a legal immigrant. Now they are trying to make me a second-grade citizen," said Ashok Malakar, a San Francisco screener who is only a year from naturalization. "That is discrimination."

Ruling in the case of Gebin v. Mineta, District Judge Robert Takasugi of Los Angeles issued a preliminary injunction against the government, blocking it from enforcing the citizenship requirement pending final resolution of the case. "Plaintiffs have...sufficiently alleged a constitutional deprivation to warrant a finding of irreparable harm," Takasugi said.

The Department of Justice issued a statement that defended the citizenship requirement and clarified the limits of Takasugi's ruling. "Congress took this approach after determining that airport screeners were on the front line in the war on terrorism. The injunction does not apply nationwide, but only to the plaintiffs in the case," said the statement. Throughout the case, federal attorneys argued that the citizenship requirement fell within Congress' immigration and foreign affairs powers.

Plaintiffs are considering the option to expand Gebin v. Mineta into a nationwide class-action suit, according to ACLU attorney Ben Wizner.

The chances of the case making it past an appellate court remain slim, says Alex Aleinikoff, a professor at the Georgetown University Law Center and former general council for the Immigration and Naturalization Service under the Clinton Administration. In matters dealing with immigration and national security, appellate courts have tended to favor Congress and the executive branch, making it likely that the Court of Appeals for the Ninth Circuit will be "quite deferential to Congress's view that the citizenship requirement is an important qualification," according to Aleinikoff.

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