#ImmigrationWatch2017 | Topic #3: Immigration Attorney Opinion: A Muslim Registry such as NSEERS should not be reinstated. What is NSEERS? Why was is created? Did it work? Did it stop terrorism? These answers and more.

Throughout his campaign, President-Elect Trump repeatedly pledged to institute a Muslim Registry and/ or a ban on immigration from terror-prone regions. Other then this general statement, Trump has not provided much for information regarding what such a registry will look like or how it will be enforced. Since the election, the uncertainty of Trump’s proposal has understandably caused Muslim people all over the world, particularly those who are currently inside the United States to live in a constant state of fear and anxiety.

Without knowing the details of Mr. Trump’s plans, we have struggled to provide our Muslim clients with advice on how to prepare for the incoming administration, and it has been even harder to provide concrete reassurances to our Muslim clients that they will not face bars to entry or selective prosecution regarding being placed into removal/ deportation proceedings.

Last week, President-Elect Trump met with Kris Kobach, to discuss appointing Mr. Kobach as the Secretary of the Department of Homeland Security (DHS). At the meeting, Mr. Kobach was photographed holding a document outlining his plans for the first 365 days of his potential cabinet appointment. The blown up photograph reveals some of the contents that Mr. Kobach discussed with Mr. Trump at the meeting, all of which appears to be in line with Mr. Trump’s campaign promises regarding a Muslim Registry. Notably, the first line of the document called for reinstating the NSEERS program.

The document Kansas secretary of state Kris Kobach is holding during a photo-op with President-elect Donald Trump on Sunday, November 21, 2016, in Bedminster, NJ. (AP Photo/Carolyn Kaster)

It is impossible and ill-advised to wildly speculate as to whether or not Trump with fulfill his campaign promise, but it does appear that if he chooses to follow through with a Muslim Registry, NSEERS will be a guide, as it already exists in the law, has been cited by his campaign and transition team advisors and now appears to be at the top of the list of the potential next Secretary of DHS. Accordingly, my goal here is to explain what NSEERS is, why it became law in the first place, and why reinstating NSEERS or a similar program is redundant, ineffective and contradictory to fundamental American principles that prohibit overt and covert discrimination alike.

What is NSEERS?

NSEERS, created in the aftermath of the September 11, 2001, terrorist attacks, stands for the ‘National Security Entry-Exit Registration System.’ NSEERS is also referred to as “Special Registration.”

Under NSEERS, all nonimmigrant males, 16 years or older, from countries that the Attorney General identified as presenting elevated national security concerns were required to report to the INS, (*in 2003 INS changed to USCIS), for registration, fingerprinting, and photographing. See, 8 C.F.R. § 264.1(f)(4); see also, Nat’l Council of La Raza v. Dep’t of Justice, 411 F.3d 350, 353 (2d Cir. 2005). In addition to tracking entries and exits, there was a domestic component of NSEERS that required over 80,000 males present in the Untied States on nonimmigrant visas from Muslim-majority nations to appear at local immigration offices and register in accordance with the program. At these appointments, NSEERS program compliers would be subject to fingerprinting, photographs, document review and extensive questioning.

What law created NSEERS?

There is not one specific piece of legislation that provides the authority for NSEERS.

One of the main statutes cited by the courts and the Department of Justice, (DOJ), as authority to create NSEERS is found in the Immigration and Nationality Act (INA) § 236, which contains a specific provision on the registration of certain groups. Under the INA, the Attorney General is permitted to require registration for several classes of non-immigrants including (1) alien crewmen, (2) holders of border-crossing identification cards, (3) aliens confined in institutions, (4) aliens under order of removal, (5) aliens who are or have been on criminal probation or criminal parole within the United States, and (6) aliens of any other class not lawfully admitted to the United States for permanent residence.

The rationale for establishing NSEERS is set forth in the Federal Register as follows:

Recent terrorist incidents have underscored the need to broaden the special registration requirements for nonimmigrant aliens from certain designated countries, and other nonimmigrant aliens whose presence in the United States requires closer monitoring, to require that they provide specific information at regular intervals 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. On June 13, 2002, the Department published a proposed rule to modify the regulations to require certain nonimmigrant aliens to make specific reports to the Immigration and Naturalization Service; upon arrival, approximately 30 days after arrival; every twelve months after arrival; upon certain events, such as a change of address, employment, or school; and at the time they leave the United States. This final rule adopts the proposed rule without substantial change.

Registration and Monitoring of Certain Nonimmigrants, 67 Fed.Reg. 52584 (Aug. 12, 2002).

In 2002, Attorney General John Ashcroft also explained that NSEERS was created to comply with the mandate by Congress that DOJ build an entry-exit system to track all nonimmigrants who come to the United States. Ashcroft further explained that NSEERS was the first crucial phase in this endeavor. In 2003, DHS took over this role and eventually the US-VISIT system was ready to track all nonimmigrants and NSEERS was suspended, yet still remained on the books. In 2011, DHS ended the NSEERS program. The notice released in conjunction with the end of the NSEERS program can be found here.

The constitutionality of NSEERS is outside the scope of this post, but it should be noted that the Federal Circuit Courts, the highest courts to have addressed this issue, have not found NSEERS to be unconstitutional. However, it is also important to point out that the court cases that have challenged the constitutionality of NSEERS generally dealt with aliens placed into removal proceedings after voluntarily complying with NSEERS, who were unlawfully present in the United States. The independent ground for removability precluded most courts from ever getting to the issue of whether or not NSEERS exceeded the broad discretionary power of the Attorney General. See, Zerrei v. Gonzales, 471 F. 3d 342 (2nd Cir. 2006). Courts that have reached the issue have upheld the constitutionality of NSEERS by claiming that there is a rational basis between special registration and national security. See, Kandamar v. Gonzales, 464 F. 3d 65 (1st Cir. 2006).

What was the purpose of NSEERS?

As explained in the Federal Register excerpt above, the purpose of NSEERS was to prevent terrorism and to keep track of nonimmigrants entering and exiting the United States. NSEERS was the precursor program to the electronic exit-entry system that we now have in place that keeps track of all non-immigrants entering and exiting the country. This program used to be known as US-VISIT (United States Visitor and Immigration Status Indicator Technology) and and in 2013 it became known as OBIM (The Office of Biometric Identity Management).

So did NSEERS stop any terrorists?

This question is harder to answer due to the lack of transparency of the program, the lack of statistics kept on the program, and the fact that suspected terrorists did not have to be charged with terrorist-related crimes to be removed from the country. In fact, many people who voluntarily complied with the program who were inside the United States ended up being placed in deportation proceedings due to the fact that their wholly independent immigration violation (for example, overstaying their visa) came to light as a result of Special Registration compliance. This independent ground for removability complicates the attempts to analyze the effectiveness of NSEERS because DHS did not need to bring about terrorism-related to charges in order to place aliens into removal proceedings and prove removability by clear and convincing evidence. DHS did their job if they proved that an alien was removable based on the visa overstay and did not have a requirement to push terrorism-related grounds of removability, a charge which presumably would be a lot harder to prove.

Opponents of NSEERS argues that terrorists inside the United States simply would not comply with the program and hope to remain undetected by the government. Many nonimmigrants, whether here legally or not, failed to comply with the special registration for this very reason, they were afraid that they would be detained or deported if they attempted to comply. DHS has refused to provide Congress with any statistics concerning the number of suspected terrorists identified with this program, stating that this information is classified. Experts that have studied this program, however, have found that too much data was collected as a result of the program to prove useful, and that the aim of casting a wide net to detect potential terrorists based on no actual suspicion, even if some terrorists were in fact caught, was a waste of resources that could be better spent elsewhere.

What we do know though, is that information obtained through NSEERS did NOT result in one terrorism-related criminal conviction. It also destroyed relationships with friendly countries who had worked with the United States to stop terrorism within their borders prior to the institution of the program. Reinstating such a controversial program is certainly likely to reignite tension with Muslim-majority countries and further strain ties with multiple countries around the world.

Bottom Line

Muslims inside the United Staters, legally or not, do have a legitimate reason to be concerned about such a registry being reinstated when President-Elect Trump takes office on January 20, 2017. Whether you agree with such a registration or not, there is legislative and judicial authority that will allow NSEERS or a similar program to be reinstated. The best advice I can give nonimmigrants in the United States right now is to contact an immigration lawyer immediately to see if there is a path to a green card out there for you. If there is a path, get started on this process BEFORE January 20, 2017, to decrease any potential negative impact that such a Special Registration may have on your case.

*Please note that the contents of this post and any content that you see on The Shapiro Law Firm, LLC website should not be construed as legal advice, nor does anything on this website constitute the formation of an attorney-client relationship. If you are seeking help with a legal matter, please contact us directly for assistance.*

#ImmigrationWatch2017 | Topic #2: Immigration Attorney Opinion: A Presidential Pardon is NOT going to protect illegal immigrants from a Trump administration.

By Transition 2017 - https///www.youtube.com/watch?v=rVzJBEYtFKU, CC BY 4.0, https///commons.wikimedia.org/w/index.php?curid=53071112

Lately, there has been a lot of talk that President Obama may issue a pardon for certain immigrants present in the U.S. illegally before he leaves office to protect them from deportation. Much of this talk has centered around DACA recipients and other undocumented immigrants who have no criminal history and other positive good moral character traits. The idea is to protect these people from deportation at the hands of the incoming Presidential administration, an action of which is promised by President-Elect Trump, although it is unclear as to what extent he will carry out deportations when he takes office next year.

A presidential pardon can forgive an individual accused or convicted of committing certain federal criminal offenses. Can the President forgive violations of the Immigration and Nationality Act (INA), a civil statute? If yes, is it constitutional issue such a broad pardon?

For argument’s sake, let’s assume that a presidential pardon of immigrants illegally present in the United States is Constitutional (an issue outside the scope of this post, and as this author will explain, an issue that need not be addressed at all). What really matters here, is will Obama be able to protect illegal immigrants from being kicked out of the United States by pardoning certain immigration violations?

In this Immigration Attorney’s opinion, probably not. The problem is, even if President Obama can issue pardons to specific undocumented individuals in accordance with his constitutionally delegated powers, he does not have the authority to grant anyone legal status without Congress passing legislation, and The White House has repeatedly stated that it will not violate the Constitution in this respect. So why will this not work without Congress?

Let’s break down the definition of an “illegal immigrant” in order to better understand the issues at play here. There are two main aspects to legal status in the United States: the entry and the period of authorized stay.

To enter the United States legally as a non-citizen, one must present a valid travel document at the border (generally in the form of a visa). Every nonimmigrant or immigrant admitted to the United States is given a specific period of time that he or she can legally remain in the country before he or she must depart.

Depending on the type of visa, the period of authorized stay will be based on time and/ or compliance with certain terms (for example, a person who enters the U.S. with a F-1 student visa will be authorized to remain in the U.S. for the duration of status (D/S), as long as he or she complies with the terms of the F-1 visa, he or she will be in status without respect to how long he or she is here. While a person who enters the U.S. with a B-1/B-2 Visitor Visa is given a specific date to depart the U.S. on (usually 6 months from entry).

With that in mind, here is an example of how such a pardon would play out in the real world:

Person X, a non-U.S. Citizen, illegally crossed the U.S. border without authorization in 2002;
Entering the United States Without Inspection (EWI) means that X can be found in violation of Immigration and Nationality Act (INA) § 212(a)(6)(A), for being present in the United States without admission or parole;
President Obama issues a presidential pardon for anyone who entered the United States in 2002 and is removable from the United States under INA § 212(a)(6)(A);
So X’s EWI is now forgiven by the presidential pardon.
But what does this actually mean for X, specifically X’s immigration status in the United States?
It means nothing. Such a pardon does not confer any lawful status on X, nor does it prevent a future administration from placing X into deportation on some other grounds, and arguably even the same ground, because even with the pardon, technically everyday that X remains in the United States, he is continuously violating U.S. immigration law.

There are other issues with granting a Presidential Pardon to illegal immigrants, but the other issues need not be addressed at this time, because it is irrelevant in light of the fact that such a pardon would not be able to accomplish the underlying goal of protecting illegal immigrants from deportation and/ or grant them legal immigration status.

Immigrant advocates should place their emphasis on alternative protections.

*If you need help remaining in the United States or obtaining lawful status, contact us today to find out if we can help.*

Immigration Attorney Opinion: The mass deportation of 11 million illegal immigrants will likely result in human rights abuses.

What does the mass deportation of 11 million people actually look like?

Prison Cell

Previously, I explained the astronomical economic cost of Donald Trump’s plan to mass deport 11 million undocumented immigrants if he is elected President (approximately $100-$300 billion).

While this fact alone provides strong support against the plan, the reality is, this proposal is likely to create an inviting environment for repeated human rights abuses. How? To understand the real danger behind this plan, it is helpful to picture what steps the government must take in order to carry out this feat.

How will Immigration and Customs & Enforcement (ICE) enforce this? ICE will likely first target the approximate 925,000 undocumented immigrants who have final orders of removal/ deportation but have failed to depart the United States. In accordance with standard ICE operating procedures, focus will likely shift to criminal illegal aliens already in removal/ deportation proceedings. ICE will face the least number of legal hurdles in removing these two groups of illegal aliens, and thus should be effectuated relatively quick compared to the remaining undocumented immigrants.

The question is, how will Trump go about deporting individuals who do not have final removal/ deportation orders? Will their be a flat denial of due process in violation of the U.S. Constitution and with complete disregard to Supreme Court precedent?

While Trump has failed to explain how the mass deportation would actually take place, he intentionally leads a reasonable listener to believe that he will be rounding people up to deport them, all at once or as many as possible at a time. Either Donald Trump really does not understand how the removal/ deportation process works, or he does not care. The fact is, the U.S. cannot just put people on boats and planes and waive goodbye. We rely on the cooperation of other countries to take back their citizens and nationals. However, according to the chairman of the Senate Judiciary Committee (citing DHS), currently there are 23 countries who are “uncooperative” in this endeavor and cooperation with 62 other countries are “strained.” This has been one of the main reasons why there are close to 1 million illegal aliens still in this country with final orders of removal.

It is thus reasonable to conclude that the mass deportation of 11 million people will be a time-consuming and tedious process. So what will the U.S. government do with all 11 million people while they scramble to figure out each person’s country of origin and secure a travel document there?

I am concerned that many of these people will be placed in ICE detention centers which will spur the opening of numerous large detention centers across the United States. In addition, most likely these immigration detention centers will be privately-run facilities, as the government does not have the budget to otherwise implement such a plan (Congress controls the budget, not the President), and this is where my biggest concern lies.

I have always been against for-profit prisons. These prisons make money like any other for-profit entity, by always looking to cut costs and maintain a steady stream of clientele (i.e., returning customers). In this situation, that means decreasing living conditions to arguably minimal legal standards for prisons, a lack of transparency and public accountability, and an interest in keeping individuals locked up.

The conditions in many of these for-profit prisons are so deplorable in fact, that about 2 months ago the U.S. Justice Department announced that it was terminating contracts with private prisons due to fact that the prisoner conditions were so sub-standard that riots were breaking out in response to this and to the high number of assaults and suspicious deaths that were taking place.

Despite the numerous accounts of the atrocities that have taken place in these for-profit prisons, ICE just announced that it has entered into a contract with one of the worst facilities on this list to house undocumented immigrants and is in the process of making agreements with at least 2 more of these facilities.

We cannot be naive here. For-profit prisons operate to make money and that will not change simply because the detainees are illegal immigrants as oppose to criminal offenders. The same deplorable healthcare and living conditions are certain to continue despite the change in detainee population, inviting the likelihood of severe human rights violations of millions of individuals being held not as criminals, but as immigration violaters.