By Stanley Mailman and Stephen Yale-Loehr**

Effective September 11, 2002, exactly one year after the terrorist attacks on the United States, the Attorney General issued a rule broadening the registration requirements for nonimmigrants (noncitizens coming to the United States temporarily). 67 Fed. Reg. 52,584, 52,591 (Aug. 12, 2002), amending 8 C.F.R. §§ 214.1(f), 264.1(f). See also Special Procedures for Visitors and Temporary Residents, at http://www.ins.usdoj.gov/graphics/lawenfor/specialreg/index.htm (last visited Oct. 19, 2002). Although the Immigration and Naturalization Service (Service or INS) claims that the rule only applies to a small percentage of nonimmigrants, its reach is in fact hard to gauge and could be quite broad. The Service argues in its commentary that it would compromise national security to disclose the criteria that trigger registration. See Supplementary Information 3, 67 Fed. Reg. at 52,589.

The available evidence suggests that the Service is interpreting the language of the rule aggressively. It has effectively expanded the list of countries whose nationals must register, without giving the formal notice expected. Moreover, its confidential criteria would empower INS inspectors to snag the most innocent visitor with impunity. In other ways, the rule seems both unnecessarily harsh and less effective than it should be.

The U.S. system for “alien registration,” once quite stringent, was eased over the years by statute and regulation. See generally 1 Charles Gordon, Stanley Mailman & Stephen Yale-Loehr, Immigration Law and Procedure § 6.11[2] (2002). Nonimmigrants, generally, with the exception of those in a diplomatic classification, are considered registered in connection with their visa application, see INA § 221(b), 8 U.S.C. § 1201(b); most others by simply being issued the I-94 arrival/departure document or by waiver under the regulations. See INA §§ 262(a), (c), 8 U.S.C. §§ 1302(a), (c), 8 C.F.R. § 264.1(a), (e).

Going beyond this standard registration, the new rule sets up a regime of special registration for two classes of people. In one class are nationals of any country that the Attorney General lists in the Federal Register after consulting the Secretary of State. (This class includes not only entrants who carry the passport of such a country, but those whom the Attorney General “has reason to believe” share such nationality, presumably dual nationals who present the passport of another country.) This insistence on registering such dual nationals has already produced rumblings in Ottawa. Canada, protesting to the United States, warned its citizens on October 30 against traveling to the United States if they were born in one of the five countries listed in the Federal Register, or one of the other three being targeted (under a secret memorandum discussed below). See DeNeen L. Brown, U.S. Reacts to Canada’s Concern on Border Policy, Washington Post, Nov. 1, 2002, at A29. The United States responded by assuring Canada that place of birth will not itself trigger registration. See statement of Barbara Comstock, U.S. Department of Justice (DOJ) Office of Public Affairs (Nov. 1, 2002), at http://www.usdoj.gov/opa/pr/2002/November/02_opa_638.htm (last visited Nov. 5, 2002). Unclear from the U.S. statement is whether we will automatically impose registration on a Canadian who was not only born in one of the interdicted countries but also retains its nationality.

In the other class of those who must register are nonimmigrants specifically tagged by a U.S. consul when issuing a visa, or by an INS inspector at a port of entry. In making these selections, the consul or inspector is supposed to rely on “pre-existing criteria” based on national security or law enforcement considerations. Because of these considerations, entrants who meet the criteria must be registered even though they are technically admissible. The Service has so far declined to disclose any of the criteria, but they are detailed in an internal memorandum discussed below.

The Attorney General has so far officially designated nationals of Iran, Iraq, Libya, Sudan, and Syria for special registration. However, a confidential memorandum issued in early September by INS headquarters expands the list to three other countries. The Attorney General has done so by exercising his authority to formulate “pre-existing criteria.” See memorandum from Johnny N. Williams, INS Exec. Assoc. Comm’r, to field offices, File No. HQINS 70/2.8 (Sept. 5, 2002), available at http://209.17.95.115/news/article.asp?ARTICLE_ID=29014 (Paul Sperry, Saudi Arabia “Shocked” to be Added to Watch List, WorldNetDaily, posted Sept. 20, 2002). According to that memorandum, INS officers are urged to be on a special lookout for males between the ages of 16 and 45 (excepting those in diplomatic status) who are nationals of Pakistan, Saudi Arabia, and Yemen.

The other criteria for subjecting any nonimmigrant to special registration, according to the Williams memorandum, are:

1. Making trips to Iran, Iraq, Libya, Sudan, Syria, North Korea, Cuba, Saudi Arabia, Afghanistan, Yemen, Egypt, Somalia, Pakistan, Indonesia, or Malaysia that lack a credible explanation;
2. Engaging in other travel not well explained by a job or other legitimate circumstances;
3. Having once overstayed a nonimmigrant visa;
4. Meeting intelligence profiles;
5. Being identified by a law enforcement agency for monitoring;
6. Showing by “behavior, demeanor, or answers” that monitoring is warranted; or
7. Giving answers from which the officer may “reasonably determine” that monitoring is required.

Referrals for special registration under these criteria are discretionary and must have supervisory concurrence.

Some of the criteria, such as meeting certain intelligence profiles, make sense in terms of protecting our country from possible terrorists. Others seem too nebulous and subject to abuse by over-zealous INS inspectors. For example, what “behavior, demeanor, or answers” constitute grounds for special registration? What if a person is nervous and averts her eyes when questioned by an INS inspector? Is that grounds for special registration? And should all those who have ever overstayed a nonimmigrant visa, even for just one day, be subject to special registration requirements? Based on the INS criteria, almost every nonimmigrant is potentially subject to special registration. Indeed, the Justice Department has stated that as of November 1, 2002, nonimmigrants from over 100 countries have been subjected to special registration. See Comstock (DOJ) statement above.

On November 6, the Justice Department expanded its special registration requirements to include thousands of people who are already present in the United States. 67 Fed. Reg. 66,765 (Nov. 6, 2002). Under the new rule, beginning November 15, 2002, any person who is male, over 16 years old, born in (irrespective of passport/citizenship country) Iraq, Iran, Syria, Sudan or Libya, has been present in the United States since September 10, 2002 and will not depart before December 16, 2002, and holds a temporary visa (not green card or U.S. citizenship, but including students, professional workers, visitors, investors, etc.) must report before December 16, 2002 at a designated INS office to go through the special registration process. Civil rights groups denounced the expansion as ethnic profiling. Mary Beth Sheridan, U.S. Wants Prints Of Muslim Visitors; Arab Rights Groups Denounce Plan, Washington Post, Nov. 7, 2002, at A3. Other critics labeled the expansion as ineffective: “They're telling us this will make us safe from terrorists. But the terrorists aren’t the ones who are going to come forward and register,” said Jeanne Butterfield, executive director of the American Immigration Lawyers Association (AILA). Id.

Individuals who are subject to special registration, whether by nationality or individual characteristics, are fingerprinted, photographed, interviewed, registered (required to provide certain standard information), and advised of certain additional requirements:

(1) If they remain in the United States thirty days or longer, they must report in person to a specified INS office within ten days. There they must show that they are complying with the terms of their visa status, that is, are doing what they said they were here to do when initially interviewed.
(2) If they remain a year or longer they must report annually as in (1) above.
(3) They must notify the INS in writing of any change of address, employer, or school, using the prescribed INS form, AR-11.
(4) On leaving the United States they must appear in person before an INS inspector at a designated port of departure.

According to the Service, persons reporting, as prescribed above, should be prepared to demonstrate by documentary evidence how they have met the terms of their visa status. See Special Registration Procedures For Visitors and Temporary Residents, at http://www.ins.gov/graphics/lawenfor/specialreg/SRProcL.htm (last visited Nov. 2, 2002). Visitors, for example, can bring receipts or ticket stubs from places visited and transportation used. Temporary workers are expected to show payroll stubs or equivalent documents; and students, such evidence as class schedules, grades, and student identification. The Service’s advice is “to think creatively and to bring as much documentation as possible.” Id. A list of INS offices for registration or departure-interview is available by calling 1-800-375-5283 or negotiating the INS website.

The Attorney General may also impose the special registration requirements on nationals of a country formally listed who are already admitted as nonimmigrants or who are otherwise in the United States. How would they know of these requirements? The Service says that entrants are charged with knowledge of what appears in the Federal Register. Realistically, whether they would have effective notice that they must turn themselves in for registration depends in large part on how well the information is otherwise publicized. It could hardly be said that someone who remains genuinely ignorant of the requirement has failed to comply willfully and is therefore deportable or inadmissible under the provisions discussed below.

A nonimmigrant may seek relief from the registration requirements by making a request to the appropriate INS district director. Circumstances that might warrant a waiver include: a representative of a foreign government who was issued a visitor’s visa in lieu of a diplomatic visa; an individual who should be exempt from special registration but was registered in error (like someone traveling with a diplomat’s visa); or medical emergencies requiring hospitalization. Registration does not apply to persons who hold any of the diplomatic classifications whether they are seeking admission or are already in the United States. The Attorney General, acting jointly with the Secretary of State, may exempt other classes of nonimmigrants or even individuals.

According to the amended regulations at 8 C.F.R. § 214.1(f), a nonimmigrant who willfully fails to comply with the registration rules, and to provide the information requested truthfully (whether or not it is material), is deportable under INA § 237(a)(1)(C)(i), 8 U.S.C. § 1227(a)(1)(C)(i), for failing to maintain nonimmigrant status. The rule imposes an extra sanction on those registered at entry or who are later subject to registration if they fail to register on departure. The INS will presume any such person inadmissible to the United States under INA § 212(a)(3)(A)(ii), 8 U.S.C. § 1182(a)(3)(A)(ii), as someone the Attorney General has reason to believe is seeking entry to engage in an unlawful activity (because of his or her past failure to conform to the special registration requirements). This presumption can be overcome by satisfying “conditions by the Attorney General and the Secretary of State,” conditions that the rule fails to describe.

In a speech last June, the Attorney General assured his listeners that people who violate the special registration requirements would have their photographs, fingerprints, and registration data put into the National Crime Information Center (NCIC) system, where they would be available to the nation's 650,000 police officers who check this system regularly in the course of traffic stops and routine encounters. See Attorney General Prepared Remarks on the National Security Entry-Exit Registration System (June 6, 2002), at http://www.usdoj.gov/ag/speeches/2002/060502agpreparedremarks.htm (last visited Nov. 5, 2002).

Our statutory system of immigration controls generally divides those who seek entry to the United States into those who are to be admitted and those to be denied admission. (Some persons are permitted ingress without being admitted through the device of parole.) The new registration rule adds an intermediate class – entrants to be admitted but closely monitored. To Europeans and natives of countries elsewhere, probably even more than Americans, being fingerprinted and photographed is like being charged or at least suspected as a criminal. Having to report back in person is tantamount to probation. For the INS, special registration adds still a further burden to an overworked and highly criticized agency. Even today, to cite a recent example, the Service has only processed a fraction of the 520,000 AR-11 change-of-address reports that it has received since July, when the agency announced that it would begin enforcing that requirement. See Emily Bazar, INS Offices Submerged in Address Forms, Sacramento Bee, Oct. 14, 2002.

The hardships of special registration and the antagonism they are sure to generate are part of the price that September 11 is exacting. To what extent these and other costs of registration will yield better security is hard to calculate. It is certainly arguable that once foreign nationals are admitted to the United States, it is futile to try to monitor those who have an evil design. Like the Pakistani crewmen who were admitted in Norfolk, Virginia last March, they can disappear without a trace. See Laura Foote Reiff, Zero Tolerance and Portability: Are You in Status?, (AILA’s) Immigration Law Today, October 2002, at 617. In commenting on the rule when it was proposed, AILA argued that it would divert resources from the National Security Entry-Exit System mandated by Congress and antagonize foreign nationals, particularly those from Arab countries, without protecting us against terrorists.

Still, while the rule is on the books, the fingerprinting and photographing, with the more intensive interviews, might be a useful add-on to the regular visa and entry procedures. Special registration could be used more effectively to take a closer look at those applicants who are potentially a threat to the United States so as to bar them from entry. U.S. Attorney General Ashcroft argued last August that a pilot program produced “an average of more than 70 fingerprint ‘hits’ a week, resulting in the arrest of more than 2,000 wanted felons.” Brown (Washington Post) above. That may be a good law enforcement argument for registering all entrants rather than just those from selected countries. But such a blanket registration process would bring travel to the United States to a virtual standstill. As to those who pass the initial registration with flying colors, it would be sensible to waive the additional reporting requirements.

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* An earlier version of this article appeared in the October 28, 2002 issue of the New York Law Journal. Copyright © 2002 the New York Law Publishing Company. The authors thank the Journal for permission to update the article. Much of the information contained in this article will be incorporated at 1 Charles Gordon, Stanley Mailman, & Stephen Yale-Loehr, Immigration Law and Procedure § 6.11 (2002).

** Stanley Mailman and Stephen Yale-Loehr are co-authors of Immigration Law and Procedure, published by Matthew Bender and Company, Inc. Mr. Mailman is of counsel to Satterlee Stephens Burke & Burke in New York City. Mr. Yale-Loehr is of counsel at Miller Mayer in Ithaca, N.Y., and teaches immigration law at Cornell Law School.