Special Registration: Discrimination in the Name of National Security

Author:Mary M. Sevandal
Position:J.D. Candidate, University of Iowa College of Law, May 2005

I. Introduction. II. Components Of Special Registration A. Special Registration: The Law . III. Special Registration Program: Poor Implementation. A. Failure to Inform CIS Officers. B. Failure to Inform Registrants IV. Special Registration & Equal Protection .A. Equal Protection of Aliens: Historical Comparisons.B. Doctrine of Plenary Power.V. Special Registration Is Religious And Racial... (see full summary)


    Mary M. Sevandal . J.D. Candidate, University of Iowa College of Law, May 2005. This note is dedicated to Lourdes and Simeon whose love and support have made all of my accomplishments possible and whose examples have taught me more than they will ever know.

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I Introduction

Following the events of September 11, 2001, the Department of Justice's (DOJ) first and overriding priority was to "prevent, detect, disrupt, and dismantle terrorism, while preserving constitutional liberties."1In accordance with this goal and based on the President's homeland defense initiatives, the DOJ issued immigration regulations to register and "closely monitor certain 'nonimmigrant aliens'2from designated countries."3Under this program, known as special registration, citizens4and nationals5of specified countries who attempt to enter the United States on a temporary basis must be fingerprinted and subjected to additional processing upon entry.6In addition, the program required certain citizens and nationals of select countries, already present in the United States, to appear at immigration offices by specific deadlines for special registration un- Page 736der the call-in program.7

The DOJ stated that the special registration program promotes several important national security objectives, including helping the United States identify wanted criminals and known terrorists entering the country, enabling the Department of Homeland Security (DHS) to instantly determine when foreign nationals have overstayed their visas, and verifying that those required to register are in compliance with their stated purpose for being in the United States.8Al- though the program purports to promote national security efforts in fighting the War on Terror, its poor implementation has resulted in the exact opposite. Instead of promoting national security, special registration has violated the civil rights of an important immigrant population that the United States relies upon for crucial terrorist related information.9More importantly, the program has alienated and ostracized this essential immigrant population at a time when cooperation and friendly relations are necessary to promote national security. 10

The blatant discrimination permeating the program violates the equal protection rights of the Arab and Muslim men required to register, and the aggregate results of special registration significantly harm, rather than promote, the United States' national security efforts in fighting the War on Terror.

The purpose of this note is to elucidate the special registration program and the consequences of its implementation. The first part of this note describes the components of special registration and the program's poor application by immigration officials. The second part describes the major problems resulting from special registration including the denial of equal protection, the racial profiling inherent in the program, and the alienating effects of targeting Arab and Muslim-American communities. Finally, the note concludes with suggestions for lessening the negative consequences that result from special registration.

II Components Of Special Registration

As a result of the September 11th terrorist attacks, the DOJ is pursuing the implementation of three major components of the President's directive on Homeland Security. One of these components, an improved entry-exit systemPage 737known as the National Security Entry-Exit Registration System (NSEERS) and commonly called special registration, is designed to track the arrival and departure of foreign visitors coming into the United States.11In the USA Patriot Act,12Congress mandated that the DOJ develop an entry-exit system in order to secure the United States' borders and help aliens fulfill their responsibilities under the laws of the United States.13Attorney General John Ashcroft mandated that one aspect of this system include additional registration requirements for certain nonimmigrants from "countries of concern" to the United States for national security reasons.14

A Special Registration: The Law

In justifying registration regulations, the DOJ stated that recent terrorist incidents highlight the need to expand upon the special registration requirements for certain nonimmigrant aliens whose presence in the United States requires closer monitoring.15The DOJ deemed this closer monitoring of nonimmigrant aliens at regular intervals necessary in order to "ensure their compliance with the terms of their visas and admission, and to ensure that they depart the United States at the end of their authorized stay."16On June 13, 2002, the DOJ published a proposed rule that would require certain nonimmigrant aliens to make specific reports to the United States Citizenship and Immigration Services (CIS, formerly the INS)17at pre-determined intervals.18The rule required aliens to Page 738 report upon occurrence of each of the five stated intervals which include: (1) upon arrival; (2) approximately thirty days after arrival;19(3) every twelve months after arrival; (4) upon certain events, such as a change of address, employment, or school and; (5) at the time of their departure from the United States.20Effective September 11, 2002, the DOJ adopted the June 2002 proposed rule without substantial changes.21The rule initially applied only to non- immigrants admitted to the United States on or after September 11, 2002.22The Attorney General, however, retained the discretion to expand the scope of registration to nonimmigrants already present in the United States by means of a Federal Register notice.23

The special registration requirement is triggered in one of the two following ways:

  1. A foreign national may be required to register by an immigration official at the port of entry upon arrival in the United States (known as port- of-entry special registration); or

  2. After entry into the U.S., a foreign national may be among a group of citizens or nationals of designated countries who are called in to appear at a Department of Homeland Security office for registration by an im- Page 739posed deadline (known as call-in special registration).

24Initially, special registration required registration by male nonimmigrant alien visitors to the United States who were over the age of sixteen and citizens or nationals of five countries: Iraq, Iran, Syria, the Sudan, and Libya.25These comprised Registration Group I.26Registration later extended to Group II, which included Afghanistan, Algeria, Bahrain, Eritrea, Lebanon, Morocco, North Korea, Oman, Qatar, Somalia, Tunisia, United Arab Emirates, and Yemen.27Registration Group III consisted of aliens from Pakistan and Saudi Arabia, and Group IV included men from Bangladesh, Egypt, Indonesia, Jordan, and Kuwait.28

Upon registering, immigration officials will interview, fingerprint, and photograph the foreign national to verify his identity.29In addition, officials will examine his I-94 Arrival-Departure Record.30At the interview, immigration officials will interview the foreign national to determine whether he is still engaging in the activities which constituted his purpose for entering into the United States.31At the end of the interview, if the immigration official is satisfied with the registrant's responses and documentation, the officer will stamp the foreign national's I-94 document.32If not, immigration officials may require the foreign national to submit additional documentation, subject him to extended interviews, or require that an additional officer interview him.33The failure to comply with the registration requirements constitutes an inability to Page 740 maintain nonimmigrant status and renders the alien deportable.34

Since the implementation of special registration at the end of 2002, immigration officials detained about 2870 foreign nationals who complied with the call for special registration.35Immigration officials reportedly confined the detainees in over-crowded cells and denied many of them food, sleep, and necessary medicine.36Among the arrested and jailed nonimmigrant aliens were a large number of individuals who had properly applied for visas, but were still awaiting pending paperwork.37As of September 30, 2003, 290,526 Arab and Muslim male foreign nationals had registered, 207,007 of whom registered at ports-of-entry and the other 83,519 of whom registered domestically at call-in CIS offices.38Of the total 290,526 registrations, CIS officials detained 2,870 of them for failure to comply with immigration regulations and additionally issued 13,799 notices to appear before immigration authorities.39One hundred forty-three of those detained were arrested on criminal charges,40the vast majority of which were not terrorist-related.41

With as many as 13,799 notices to appear,42immigration advocates assert that special registration seems very likely to produce the largest number of expulsions and deportations since the attacks on the...

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