DHS Announces End to Controversial Post-9/11 Immigrant Registration and Tracking Program

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DHS Announces End to Controversial Post-9/11 Immigrant Registration and Tracking Program

May 17, 2011

Policy Beat

By Muzaffar Chishti, Claire Bergeron

The U.S. Department of Homeland Security (DHS) announced on April 28 that it would terminate the National Security Entry-Exit Registration System (NSEERS), one of the most controversial immigration programs implemented in the wake of the 9/11 terrorist attacks.

The program consisted of a series of controls designed to collect information, fingerprints, and photographs of certain noncitizens entering and living in the United States, and to monitor their status and movement once within the country's borders. From its inception, it was determined that NSEERS would only target male noncitizens of a certain age from predesignated countries.

The program drew criticism from various civil and human-rights groups, members of Congress, and at least one committee of the United Nations. Specifically, NSEERS was censured for its focus primarily on nationals of Muslim-majority countries, its alleged inability to identify terrorist threats, and the strict legal and immigration consequences put in place for participant noncompliance.

Though the "special registration" portion of the program, which required noncitizens from the selected countries who were already present in the United States to report for questioning before immigration officials, was suspended at the end of 2003, other portions of the program remained in effect. The recent announcement by DHS has effectively ended the program in its entirety.

The Provisions of NSEERS

The NSEERS program was first announced and implemented in June 2002 as the Bush administration's new program to screen foreign visitors who might pose a risk to national security. In a rule published by the Immigration and Naturalization Service (INS) — DHS's legacy agency — participation in the program was restricted to individuals from specifically designated countries, as well as those deemed "heightened national security or law enforcement risks."

Individuals seeking admission to the United States and who were required to participate in the program were subject to a specialized entry process at U.S. ports of entry, including having their fingerprints and photograph taken. Participating visitors were also be required to "check-in" with immigration officials 30 days after being admitted to the United States and again at the end of one year, in order for immigration officials to verify that they were complying with the terms of their visas.

Additionally, the Department of Justice (DOJ) required certain individuals from the designated countries who were already in the United States to also participate in NSEERS. These individuals were required to present themselves in person before immigration officials for "special registration" and questioning.

All individuals subject to NSEERS were also responsible for notifying DOJ if they changed their address, and could depart from the United States only through designated airports.

Those who failed to comply with the requirements of NSEERS faced a number of criminal and immigration penalties. Individuals who "willfully" failed to comply with the program's special registration provisions could be deemed to have violated the terms of their visas, making them removable from the United States, barring them from receiving future visas, and prohibiting them from adjusting their status to permanent residency. In addition, willful failure to register with NSEERS and willful failure to notify DOJ of a change in address were made misdemeanor criminal offenses.

Between September 2002 and January 2003, DOJ and INS designated a total of 25 countries whose nationals were required to participate in NSEERS (See Sidebar Box). With the exception of North Korea, all of the designations were countries where the majority of the population was Muslim. In addition, new rules stipulated that — because it would not be "administratively feasible" to require participation in NSEERS from all individuals from the 25 designated countries — the program requirements would only apply to men aged 16 and older.

Criticism, Scaling Back, and Termination

Upon implementation, the NSEERS program was widely criticized on various grounds by prominent politicians, some law enforcement experts, the media, and immigrant, civil, and human-rights groups.

Critics asserted that many of those subject to NSEERS did not know about — or understand — the requirements of the program, and consequently faced serious immigration and criminal penalties even when their failure to comply was inadvertent. The program was also criticized for alienating Muslim and Arab communities in the United States and negatively impacting U.S. foreign policy.

Furthermore, opponents alleged that the program was ineffective as a tool for stopping terrorism because it targeted individuals based solely on their national origin or religion, and not on the basis of specific evidence of criminal or terrorist activity. The New York Times reported in 2003 that, out of roughly 85,000 individuals registered through the NSEERS program in 2002 and 2003, just 11 were found to have ties to terrorism. The number of individuals screened through NSEERS and subsequently removed on the grounds of participation in terrorism-related activities is unknown; this information has not been made publicly available by DHS.

The special registration portion of the program came under particular scrutiny. While very few of those interviewed in the special registration process were found to have terrorist ties, individuals found through the course of questioning to be in violation of their immigration status were placed in removal proceedings.

According to DHS, between September 2002 and the end of September 2003 (nearly the full course of the special registration component of the NSEERS program), 83,519 individuals participated in special registration interviews at immigration offices nationwide. As a result of these interviews, 13,799 individuals were placed in removal proceedings.

Although lawsuits were brought challenging the constitutionality of NSEERS, federal district courts around the country generally ruled in favor of the program. In 2008, the 2nd U.S. Circuit Court of Appeals ruled that DOJ had the authority to implement the program, and that its implementation was not unconstitutional. That decision was not appealed to the U.S. Supreme Court.

In December 2003, largely in response to the ongoing controversy surrounding the special registration component of NSEERS, DHS suspended the portions of the program that required "check-ins" with immigration officials. This applied both to nonimmigrants admitted into the United States through the NSEERS program and to those already in the United States whose countries of origin were designated for participation.

In addition, the agency dropped the requirement for NSEERS participants to notify immigration officials when they changed their address, and it added a provision stipulating that U.S. Customs and Border Protection (CBP) could make exceptions for certain noncitizens who made frequent trips to the United States.

The 2003 decision left in place the portion of NSEERS requiring certain visitors to register at ports of entry and for all noncitizen participants of the program to depart only from designated airports but, as time went on, the justification for these provisions was increasingly challenged.

In particular, critics alleged that the remaining portions of the program were unnecessary because they duplicated other, newer DHS programs that collected biometric information and digital photographs from all temporary visitors (such as the United States Visitor and Immigrant Status Indicator Technology (US-VISIT) program, and the Student and Exchange Visitor (SEVIS) program).

In its recent announcement terminating the program, DHS cited the redundancy of the current manifestation of NSEERS, stating that, as a result of improved intelligence programs and better methods of tracking immigrant visa overstays, NSEERS was no longer needed to protect national security. And in reference to the program's turbulent past and controversy over profiling based on nationality and religion, DHS stated that it will now "seek to identify individuals and actions that pose specific threats, rather than focusing on more general designations of groups of individuals, such as country of origin."

In a striking coincidence, the announcement to terminate the NSEERS program came less than a week before the death of Osama bin Laden, the al Qaeda leader responsible for the 9/11 attacks. It's unclear as to whether the program would have been terminated in the aftermath of his death, which has increased anxiety about terrorist retaliation against the United States.

Controversy Surrounding Secure Communities Continues. Reiterating an earlier statement on Immigration and Customs Enforcement's (ICE) Secure Communities program, Homeland Security Secretary Janet Napolitano told the San Francisco Chronicle that individual local communities could not choose to exclude themselves from Secure Communities, and that the idea that it was an "opt out/opt in" program was a "misunderstanding from the get-go."

Meanwhile, the controversy over states' abilities to choose not to participate in the program continued. Illinois Governor Pat Quinn sent a letter to DHS officials announcing that his state will no longer participate in Secure Communities, and California Congresswoman Zoe Lofgren has called for an investigation into the program.

Read the text of Governor Quinn's letter to DHS announcing Illinois will no longer participate in Secure Communities.

DOL Announces U-Visa Certification Process. The U.S. Department of Labor released a new set of guidelines that will enable the department's Wage and Hour Division to sign U-visa certification forms for immigrant victims of employment-related crimes. The U visa, which Congress created in 2000, provides temporary (four years) legal status to immigrants who have been victims of certain crimes, and who law enforcement officials certify have cooperated in a criminal investigation. Each year, up to 10,000 U visas are available for immigrant victims of eligible crimes.

9th Circuit Rules Employers Cannot Deduct Housing Costs from Migrant Worker Salaries. Reversing the decision of a lower federal court, the 9th U.S. Circuit Court of Appeals ruled that agricultural employers may not deduct on-site housing costs from the weekly wages paid to migrant farm workers. The appeals court also ruled that the workers are entitled to receive their pay on the last day of work rather than the day after, as has been the customary practice.

The class-action suit was brought by several migrant farm workers against a peach and pear grower in Oregon, and alleged that the employer had violated Oregon's minimum wage law and the Migrant Seasonal and Agricultural Worker Protection Act.

Attorney General Vacates BIA Decision on Same-Sex Marriage. U.S. Attorney General Eric Holder issued a new opinion vacating a prior decision by the Board of Immigration Appeals (BIA), which rejected a noncitizen's petition for legal status based on the fact that he had entered into a same-sex civil union with an American citizen.

The new opinion from Holder asks the BIA to review the case, and to consider whether, absent the Defense of Marriage Act (DOMA), the immigrant's civil union would allow him to be classified as a "spouse" for immigration purposes. Under DOMA, which President Clinton signed in 1996, the federal government is precluded from recognizing same-sex marriages.

Although Holder has announced that DOJ will no longer defend DOMA in court, he has also stated that the federal government will continue to deny applications for immigration benefits filed for same-sex spouses.

Drop in Demand for H-1B Visas. Demand for H-1B visas have dropped by more than 50 percent when the numbers are compared for April 2010 and April 2011, according to figures cited by the Wall Street Journal. U.S. Citizenship and Immigration Services (USCIS) received just 8,000 employer petitions for H-1B visas in April 2011, compared with roughly 16,500 petitions in April 2010 and 45,000 in April 2009.

The H-1B program allows U.S. employers to sponsor highly skilled foreign-born workers for employment in the United States for up to six years.

Read the Wall Street Journal's report on the decrease in H-1B petitions.

Deportation Proceedings against Former Salvadoran General. Removal proceedings have been initiated by ICE against General Eugenio Vides Casanova, the former commander of the armed forces in El Salvador. The general is allegedly deportable based on having committed human-rights abuses when he headed the Salvadoran defense department between 1979 and 1983. Since 1989, General Casanova has lived in Florida as a lawful permanent resident.

While ICE does not release statistics on the number of individuals removed each year for human-rights violations, in October 2009 ICE Assistant Secretary John Morton testified that his office was pursuing investigations of roughly 1,000 suspected human-rights violators.

New Utah Immigration Law Put on Hold. A federal district court has temporarily enjoined the implementation of one of the newly passed Utah state immigration laws in response to a lawsuit filed by the American Civil Liberties Union (ACLU) and the National Immigration Law Center.

Last month, Utah Governor Gary Herbert signed into law an unusual package of immigration legislation that included a law requiring state and local law enforcement officers to verify the immigration status of anyone arrested for a felony or Class A misdemeanor, and a law calling on the state to create its own guest worker program.

The lawsuit asserts that the law dealing with immigration enforcement is preempted by federal law, and that it violates constitutional guarantees to due process and equal protection. Meanwhile, Chairman of the U.S. House Judiciary Committee Lamar Smith has called on DOJ to bring a lawsuit to stop the guest worker law, claiming it, too, is preempted by federal law.

Georgia Governor Signs Bill Modeled After SB 1070. Despite vigorous objections from several state business groups and agricultural associations, the Georgia state legislature enacted and Governor Nathan Deal has signed into law an immigration enforcement bill modeled after Arizona's controversial SB 1070. The bill authorizes Georgia police officers to verify the immigration status of anyone taken into state or local custody, and to refer all detained individuals who are found to be unauthorized immigrants to DHS. In addition, the new bill requires all public and private employers with more than 10 employees to enroll in and use the federal E-Verify program to confirm that their new hires are authorized to work in the United States.

While Florida Legislature Declines to Pass Similar Measure. In contrast to Georgia, the state legislature in Florida adjourned for the year without passing a SB 1070-like immigration enforcement bill. Though two separate immigration enforcement bills passed in both legislative houses, state lawmakers were unable to reconcile the two before the close of the legislative term. The House version of the bill, which contained stricter provisions overall, would have required state employers to use E-Verify, made unauthorized presence a state crime, and required state and local police officers to make a "reasonable attempt" to verify the immigration status of all individuals arrested or subject to a criminal investigation.

Read the text of the Florida Senate version of the immigration enforcement bill, SB 2040.

Massachusetts Legislators Restore Funding for Immigrant Health Care. Massachusetts's highest court issued a new opinion indicating that the state's termination of publicly funded health care benefits for legal immigrants likely violates the state constitution, paving the way for a lawsuit demanding that the state restore these benefits.

In 2006, Massachusetts became the first state in the country to enact a "universal" health care law, and to create a state-funded health insurance system for residents not covered by private insurance. While all legal immigrants were initially eligible to participate in the program, in 2009 state legislators cut funding and amended requirements to exclude those who are not eligible for federally-funded public benefits under the 1996 Personal Responsibility and Work Opportunity Reconciliation Act.

Read more about the funding of health insurance for legal immigrants in Massachusetts in the July 2009 Policy Beat.