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Section Review

'Special Registration' of certain foreign nationals: racial profiling or national security?

Halim MorisHalim Moris is a staff attorney with the Immigration Unit of Greater Boston Legal Services and a member of the Massachusetts Chapter of the National Lawyers Guild and the American Immigration Lawyers Association.

This is the second in a series of articles focusing on the dramatic changes that are currently taking place in the area of immigration practice. Unfortunately, many of these changes have had a negative impact on many non-citizens who are seeking immigration relief. In my previous article, I highlighted the recent restrictions on immigration appeals, as well as the so-called "streamlining" of the highest immigration appellate tribunal, the Board of Immigration Appeals (BIA).1

This article will focus on the newly implemented "Special Registration" program that requires foreign nationals from 25 countries, primarily Arabic and/or Muslim countries,2 to register their presence in the United States. While the United States Department of Justice has indicated that the main purpose of the "Special Registration" program is "to protect Americans from possible terrorist threats,"3 many community advocates, particularly in the Arab and/or Muslim communities, charge that the "Special Registration" program is nothing more than an official policy of racial profiling.4 Since the implementation of the "Special Registration" program, it is estimated that more than 1,600 men from Arabic and/or Muslim countries have been detained by immigration authorities,5 and many more were put in removal proceedings, for alleged immigration violations, despite the fact that many of these men had pending applications for legal status in the United States.6

"Special Registration" is a product of the USA PATRIOT Act,7 in which Congress required the Department of Justice to develop an entry-exit tracking system to monitor the whereabouts of all non-citizens in the United States.8 On June 5, 2002, without consulting Congress, Attorney General Ashcroft announced the creation of the National Security Entry-Exit Registration System (NSEERS), also known as "Special Registration," to track foreign nationals in the United States.9

On Aug. 12, 2002, the Immigration and Naturalization Service (INS)10 finalized regulations implementing NSEERS. The NSEERS regulations require non-citizen males from certain countries to appear before the local INS to be interviewed, fingerprinted and photographed.11 These requirements apply to all males over the age of 16 from the designated countries who are in the United States on a non-immigrant status and/or a temporary basis.12 In addition, NSEERS eligible non-citizens are mandated to use pre-designated airports exclusively upon their departure from the United States.13 NSEERS registration of non-citizens is designed to be implemented in stages. So far, four different stages of "Special Registration" have taken place, and they covered male nationals from 25 different countries.14 More stages of the "Special Registration" are already in the planning.

The NSEERS regulations impose severe penalties on individuals who do not comply with the registration requirements. Individuals who fail to appear for the "Special Registration" or otherwise fail to comply are deemed removable and inadmissible under the Immigration and Nationality Act (INA).15 Also, a willful failure to register or making false statement(s) during the registration process is punishable under INA ßß 266(a) and (c), respectively, by a fine of up to $1,000 or by imprisonment for up to six months.16 Failure to provide information requested during the registration process or failure to notify the INS of the registrant's change of address (within 10 days of the move) is punishable by imprisonment for up to 30 days and/or a fine of up to $200.17

While registering, fingerprinting and photographing non-citizens are not new phenomena in immigration practice,18 all of the previous registration programs were designed to register those who were seeking to enter the United States and who were in the process of coming from abroad. NSEERS registration, however, aims to register those who are already in the United States and who already have been inspected and admitted by an immigration officer.19

Since the first day of implemention of the "Special Registration" reports of mass arrests and initiation of removal proceedings against a large number of registrants as well as mistreatment by INS officers, particularly on the West Coast of the United States, have been circulated.20

Critics of the "Special Registration" program argue that the true purpose of the program is to intimidate and instill fear in the Arab and Muslim communities in the United States. They point to the fact that 24 out of the 25 countries subject to the special registration are Arab and/or Muslim countries. They also point out that many of the registrants were detained for days or weeks for minor immigration violations,21 were denied access to their attorneys during the registration process,22 or had valid applications for residency pending with the INS for months, if not years.23 They argue that the INS is setting a bad example when it detains and mistreats registrants who ought to be commended for trying to comply with law. One critic of the "Special Registration" program calls it "a war against Muslims and Islam." After all, he says, the INS is "not targeting Hindus, Jews and Christians."24

The Department of Justice and the INS, however, deny any racial, religious or ethnic profiling as the reason for the "Special Registration." A local INS spokesperson points out that the reason Arab and Muslim countries are on the registration list is that "all of the countries that have been selected in the registry are places where Al Qaeda, or other terrorist groups, have been active."25

End notes

1. Halim Moris, Restricting Immigration appeals: Efficiency Over the Right of Due Process, Section Review, Mass. Bar. Association, Vol. 5 No. 1 (2003). [back]

2. Out of the 25 countries that are currently subject to the "Special Registration," only one, North Korea, is considered non-Arab and non-Muslim. For a complete list of countries subject to "Special Registration," see note 14, Infra.[back]

3. Attorney General Ashcroft Announces Implementation of the First Phase of the National Security Entry-Exit Registration System, U.S. Department of Justice Press Release (Aug. 12, 2002). The press release is found at [back]

4. Kalimah Redd, Globe Correspondent, Protesters Rally Against INS Rules Effort Decried as Racial Profiling, Boston Globe, 15 Feb. B3, 2003. "After Sept. 11, because the country was so frightened and saddened, the government used the emotional climate as an excuse to clamp down on civil liberties...The loss of civil liberties is most glaring among Arabs and Muslims." Id. Nurith C. Aizenman, Local Muslims Turn Attention to Civil Rights; Registration for Immigrants Becomes Particular Concern, Washington Post, T05, March 27, 2003. [back]

5. The INS has the authority to arrest and detain foreign nationals pursuant to 8 C.F.R. ß 278.5(c). In addition, an immigration officer has the authority to arrest a foreign national without a warrant if the officer has "reason to believe that the in the United States in violation of any [immigration] law or regulations and is likely to escape before a warrant can be obtained for his arrest." INA ß 278(a)(2). [back]

6. Nurith C. Aizenman, Muslim Institutions Focus on Legal Matters; Immigrant Issues Become Common Topic, Washington Post, T03, March 20, 2003. "The 'Special Registration' effort has caused widespread panic and confusion because more than 1,600 of the more than 41, 000 men nationwide who have signed up were detained for visa violations, and many had applications pending for permanent residency. Large numbers of those arrested spent a night or more in jail." Id., at T 03. [back]

7. Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001, Pub. L. 107-56, 115 Stat. 272 (2001). [back]

8. "The Attorney General, in consultation with Secretary of State, should fully implement the integrated entry and exit data system..." Id., ß 414 (a)(1). [back]

9. U.S. Department of Justice, Press Release, National Security Entry-Exit Registration System, June 5, 2002.[back]

10. As of March 1, 2003, the INS became a part of the Department of Homeland security pursuant to the Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2153, signed into law by President George W. Bush on Nov. 25, 2002. Under the Homeland Security Act, INS ceases to exist. Immigration functions of the former INS are now delegated to two bureaus in the Department of Homeland Security. These two bureaus are: the Bureau of Immigration and Customs Enforcement (BICE) and the Bureau of Citizenship and Immigration Services (BCIS). For a section-by-section review of the immigration provisions of the Homeland Security Act, see 79 Interpreter Releases 1733 (Nov. 25, 2002). [back]

11. 67 Fed. Reg. 49561 (Aug. 12, 2002). Females, United States citizens (naturalized or native born), diplomats, Lawful Permanent Residents (LPRs) and individuals granted asylum (asylees) are exempt from the "Special Registration." Id.[back]

12. Id. This includes non-immigrant foreign nationals who are currently in the United States as students, visitors for business or pleasure, and those who hold temporary employment visas. See 8 U.S.C. ß 1101(a)(15). In addition, under NSEERS asylum seekers who filed their applications for asylum after certain date are required to register. 67 Fed. Reg. 49561 (Aug. 12, 2002). Finally, foreign nationals who are out-of-status are also subject to NSEERS registration requirement if they entered the United States with inspection. Id. [back]

13. 67 Fed. Reg. 61352 (Sept. 30, 2002). For a complete list of the pre-designated airports that non-citizens subject to NSEERS registration must use to depart from the United States, see 79 Interpreter Releases 1493 (Sept. 30, 2002). [back]

14. Stage One covered males over 16 from Iran, Iraq, Libya, Sudan and Syria. The registration period for that stage ran from Nov. 15, 2002, until Feb. 7, 2003. See 67 Fed. Reg. 40581-86 (June 13, 2002). Stage Two covered males over 16 years of age from Afghanistan, Algeria, Bahrain, Eritrea, Lebanon, Morocco, North Korea, Oman, Qatar, Somalia, Tunisia, United Arab Emirates and Yemen. The registration period of the second stage ran from Dec. 2, 2002, until Feb. 7, 2003. See 67 Fed. Reg. 67766 (Nov. 6, 2002); 67 Fed. Reg. 70526 (Nov. 11, 2002). The third stage covered males over the age of 16 from Pakistan and Saudi Arabia. It ran from Jan. 13, 2003, until March 21, 2003. See 67 Fed. Reg. 77135-38 (Dec. 16, 2002). The fourth stage of the NSEERS registration covered males over the age of 16 from Bangladesh, Egypt, Indonesia, Jordan and Kuwait. It ran from Feb. 24, 2003, until April 25, 2003. See 68 Fed. Reg. 8046 ( Feb. 19, 2003). Note that individuals who hold dual citizenship are required to register as long as one of their citizenships is in a country on the "Special Registration" list. [back]

15. 8 C.F.R. ß 214.1.[back]

16. 8 U.S.C. ßß1306(a) and (c). [back]

17. INA ß 266(b), 8 U.S.C. ß 1396 (b). [back]

18. Historically, the INS has mandated the registration and fingerprinting of certain non-citizens who were seeking entry into the United States. For example, in 1991, the INS required registration and fingerprinting of foreign nationals from Iraq and Kuwait who are seeing entry into the United States. See 56 Fed. Reg. 1566 (Jan. 16, 9191); In 1993 the INS required the registration and fingerprinting of nationals of Iraq and Sudan. See 58 Fed. Reg. 68157 (Dec. 23, 1993). And in 1996, the INS required the registration and fingerprinting of nationals of Iran and Libya. See 61 Fed. Reg. 46829 (Sept. 5, 1996). [back]

19. Foreign nationals who entered the United States without inspection are not required to register under NSEERS registration. See 67 Fed. Reg. 49561 (Aug. 12, 2002).[back]

20. Michele R. Marcucci, Staff Writer, Treatment by INS Still Haunts Immigrant: An East Bay Dentist From Iran was Thrown in Jain after Obeying the Agency's Sign up Call, The Oakland Tribune, A3, Feb. 24, 2003. [back]

21. The INS has the authority to detain foreign nationals for any immigration violation regardless of how minor. See INA ß 287.3 (a). (emphasis added). [back]

22. A number of attorneys, in various jurisdictions, reported being denied access to their clients during the registration process. See American Immigration Lawyers Association, Office by Office Summary of How the INS is Handling Call-in Special Registration, InfoNet at Doc. 0212642 (Feb. 24, 2003). [back]

23. Many of the registrants who were detained and/or put in removal proceedings since the beginning of the "Special Registration" program "had valid applications pending with the INS for permanent residency." Aizenman, Washington Post, note 6, supra at T 03. [back]

24. Jason Margolis, Staff Reporter, Men Without a Country Go North to Find a home; Fear of U.S. Registration Fuels Pakistani Muslims' Flight to Canada, Seattle Times, B1, March 23, 2003, quoting the president of the American Muslim Alliance in Seattle, Wash., Rizwan Samad. [back]

25. Redd, Boston Globe, supra, note 4, quoting Paula Grenier, a spokeswoman for the INS's Boston district.[back]

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