Shutting Down Special Registration

Since September 11, 2001, responding to immigration directives like special registration has informed and challenged my work as an immigration attorney, advocate and scholar for more than 15 years. On June 2002, former Attorney General John Ashcroft delivered remarks announcing the National Security Entry-Exit System or NSEERS: “This system will expand substantially America’s scrutiny of those foreign visitors who may pose a national security concern and enter our country … There are three components to this initiative: first — — fingerprinting and photographing at the border; second — — periodic registration of aliens who stay in the United States thirty days or more; and third — — exit controls that will help the Immigration and Naturalization Service to remove those aliens who overstay their visas.” The NSEERS program was published as a regulation in a U.S. government document called the Federal Register. The regulation includes a severe penalty scheme for individuals who are not compliant with NSEERS. For example, a person who did not comply with NSEERS after admission to the United States can be treated as one who has failed to maintain status and therefore charged with deportability. Moreover, a person who is labeled as one who “willfully failed” to register (which can include even those who did not register out of fear) can face a criminal penalty of a fine and imprisonment.

Later in 2002, the NSEERS program was expanded to certain visitors already living in the United States. This expansion was known as “call-in” registration and announced through four “Notices” in the Federal Register. The call-in notices targeted certain males 16 years and older from 25 countries with Muslim-majority populations (one exception: North Korea). The enigma of NSEERS was not limited to the lack of notice to individuals, limited resources at local offices, or wide range of questions asked to those interrogated, but expanded to the premise that singling out Muslim males residing in the United States on valid visas would somehow improve national security.

The NSEERS program was inherited by the Department of Homeland Security in 2003. On December 2, 2003 DHS scaled back on the program by suspending annual re-registration and 30 day registration. By this time, the call-in registration program had phased out though DHS left open the possibility for domestic interviews in the future. While the suspension rule was significant, it did not amend the special registration procedures at ports of entry or exit, nor did it change the penalty scheme for noncompliance. Numbers reported by DHS in 2003 show that nearly 14,000 individuals were issued Notices to Appear and placed in removal proceedings because of NSEERS.

From 2003 through 2011, the remaining components of NSEERS continued to affect individuals and families in significant ways. For example, a student who did not know about the registration during “call-in” may have years later fallen in love, married a U.S. citizen spouse and denied a green card because of noncompliance with NSEERS. In April 2011, DHS published another notice in the Federal Register de-listing the countries associated with the NSEERS program and effectively ending the program. In this notice, DHS also acknowledged how its infrastructure has changed since NSEERS: “Since its establishment in 2003, DHS has developed substantial infrastructure and adopted more universally applicable means to verify the entry and exit of aliens into and out of the United States. … As threats to the United States evolve, DHS seeks to identify specific individuals and actions that pose specific threats, rather than focusing on more general designations of groups of individuals, such as country of origin.” In 2012, the Inspector General at DHS declared the NSEERS program “obsolete” and recommended for DHS to terminate the program altogether.

The NSEERS program was all at once ineffective, costly and discriminatory. Said counterterrorism expert Juliette Kayyem: “The pure accumulation of just massive amounts of data is not necessarily helpful … Basically, what this has become is an immigration sweep. The idea that this has anything to do with security, or is something the government can do to stop terrorism, is absurd.” Said immigration attorney Denyse Sabagh: “For many affected individuals, it was difficult to register because of long lines in front of registration offices, people being turned away, unclear, contradictory or missing information, and procedural mistakes made by the staffs of the government agencies.” Said James W. Ziglar, former commissioner of the Immigration and Naturalization Service: “What were we going to get for all of this?’ . . . The people who could be identified as terrorists weren’t going to show up. This project was a huge exercise and caused us to use resources in the field that could have been much better deployed.” Largely unknown are the number of people who may have been or will be in the future charged, detained and/or deported because of NSEERS.

Nearly fifteen years after this history, the regulatory framework giving rise to NSEERS remains intact. In recent weeks, nearly 200 organizations; former DHS officials; and a petition signed by more than 100,000 persons have called on the Administration to rescind these regulations. In the final days of the Obama Administration, shutting down special registration is both a legal possibility and a moral imperative.