NSEERS: The Consequences of America’s Efforts to Secure Its Borders 1 TABLE OF CONTENTS PREFACE 3 EXECUTIVE SUMMARY 6 INTRODUCTION 8 LEGAL AUTHORITY AND ANALYSIS 12 Statutory Foundation for NSEERS 12 Stages of NSEERS 14 Penalties for Failure to Comply 17 Concerns over NSEERS 19 Legal Challenges in Courts 22 POLICY 28 Profiling as a Counterterrorism Tool 29 Congressional Action 30 Beyond the Border 32 Stories 33 CONCLUSION AND RECOMMENDATIONS 38 APPENDIX TABLE OF AUTHORITIES 40 RESOURCE PAGE 42 ENDNOTES 46 NSEERS: The Consequences of America’s Efforts to Secure Its Borders 2 PREFACE On behalf of the American-Arab Anti-Discrimination Committee (ADC), the Center for Immigrants’ Rights (Center) at the Pennsylvania State University’s Dickinson School of Law prepared a white paper on the National Security Entry-Exit Registration System (NSEERS or “special registration”).1 The white paper provides a legal and policy analysis of the NSEERS program, and recommendations for a new administration. In conducting the research, students at the Center interviewed immigration attorneys who have represented individuals impacted by the NSEERS program; and advocates and policymakers who have spoken or written about the NSEERS program in the larger context of United States immigration and counterterrorism policies after September 11, 2001. In addition, the Center examined governing statutes, regulations and statistics issued by the Department of Homeland Security (DHS). Finally, the Center reviewed previous reports by advocates and non-governmental organizations regarding the NSEERS program, and more than forty related federal court decisions. The American-Arab Anti-Discrimination Committee (ADC), which is nonpartisan and nonsectarian, is the largest membership organization in the United States dedicated to protecting the civil rights of Arab-Americans. ADC was founded in 1980 by former Senator James Abourezk to combat racism, discrimination, and stereotyping of Americans of Arab descent. With headquarters in Washington, D.C., and offices in New Jersey, Massachusetts, Michigan, and California, ADC has 38 local chapters and members across the nation. Through its Department of Legal Services, ADC offers counseling in cases of discrimination and defamation and selected impact litigation in the areas of immigration. ADC also coordinates its efforts closely with local, state and federal government agencies in facilitating open lines of NSEERS: The Consequences of America’s Efforts to Secure Its Borders 3 communication with the Arab-American community. In the wake of September 11, 2001 (9/11), ADC has had a visible presence in the struggle against increasing government encroachment into the lives of both Arab American and Muslim citizens and immigrants. Working in conjunction with other non-profit organizations, research and policy institutions, ADC has voiced strong opposition to government programs that profile based on ethnicity, nationality or religion. The Center for Immigrants’ Rights is a new clinic at the Pennsylvania State Dickinson School of Law whose mission is to represent immigrants’ interests through legal excellence, advocacy, education, and collaboration with key stakeholders and the community. The Center teaches law students the skills necessary to be effective immigration advocates and attorneys, primarily through organizational representation, where students work on innovative advocacy and policy projects relating to U.S. immigration policy and immigrants’ rights. Students build professional relationships with government and nongovernmental policymakers, academics, and individuals. Students acquire essential practical and substantive knowledge of immigration lawyering and advocacy through project specific work, weekly classes, readings, reflection papers, and “case rounds.” Contributing authors and editors of this white paper include: Amala Abdur-Rahman, law student at the Pennsylvania State Dickinson School of Law; Fahed Al-Rawaf, Legal Advisor to the American-Arab Anti-Discrimination Committee; Johanna Montero, law student at the Pennsylvania State Dickinson School of Law; and Shoba Sivaprasad Wadhia, Director of the Center for Immigrants’ Rights at Pennsylvania State Dickinson School of Law. ADC and the Center recognize the following individuals for reading and providing insights on an earlier NSEERS: The Consequences of America’s Efforts to Secure Its Borders 4 version of this paper: Nadine K. Wettstein, Director of the American Immigration Law Foundation's Legal Action Center; Melissa Frisk, Senior Attorney at Maggio & Kattar, P.C.; Kerri Sherlock Talbot, Associate Director for Advocacy at the American Immigration Lawyers Association; Nancy Morawetz, Professor of Clinical Law at the New York University School of Law, and Malea Kiblan, an immigration attorney at Kiblan Law Offices, P.C.. ADC and the Center also thank Sin Yen Ling, Staff Attorney Asian Law Caucus, for taking time from her busy schedule to discuss the early days of special registration; Edward Alden, Senior Fellow at the Council on Foreign Relations and noted author of Closing of the American Border, for his spirit and in-depth of knowledge about the intersections of security and immigration; and Mary L. Sfasciotti, Esq., who contacted the Center and shared the compelling story of a client who is struggling to support his family after being determined to be in willful violation of special registration. ADC and the Center also thank Priya Murthy Esq., Policy Director at South Asian American Leaders for Tomorrow; Rashida Tlaib, Representative in the Michigan House of Representatives; Jesse Moorman, attorney at the Human Rights Project; and Benjamin Johnson, Executive Director of the American Immigration Law Foundation. NSEERS: The Consequences of America’s Efforts to Secure Its Borders 5 EXECUTIVE SUMMARY The National Security Entry-Exit Registration System (NSEERS) program was implemented as a counterterrorism tool in the wake of September 11, 2001. The NSEERS program required certain non-immigrants to register themselves at ports of entry and local immigration offices for fingerprints, photographs and lengthy questioning. The most controversial aspect of the NSEERS program was a “domestic” component that solicited registrations from more than 80,000 males who were inside the United States on temporary visas from Muslim-majority countries. In September 2003, of the more than 80,000 individuals who complied with call-in registration, 13,799 were referred to investigations and received notices to appear, and 2,870 were detained.2 Many non-immigrants subjected to the NSEERS program did not understand the details of the program, as the rules were unclear and public outreach and notice were insufficient. NSEERS’s initial mission was to keep track of non-immigrants and prevent terrorist attacks. However, interviews with immigration attorneys representing individuals impacted by NSEERS and policy advocates, and a review of multiple reports and federal court decisions reveal that the NSEERS program was unsuccessful as a counterterrorism tool. Many of the individuals who legally challenged the NSEERS program entered the United States lawfully, diligently complied with the NSEERS program, were predominantly male and Muslim, and had an immigration violation such as overstaying a visa that came to the attention of the immigration agency after complying with NSEERS. Moreover, many individuals impacted by NSEERS do not appear to have terrorism charges or criminal histories. Notably, many of these individuals have meaningful family, business and cultural ties to the United States. Indeed, more than seven years after its implementation, NSEERS continues to impact the Arab- American community. Impacted individuals include those who are married to United States citizens or meaningfully employed in the United States. Well-intentioned individuals who failed to comply with NSEERS due to a lack of knowledge or fear have been denied “adjustment of status” (green cards), and in some cases have been placed in removal proceedings under the theory that they “willfully” failed to register. This scenario has torn apart Arab-American families because of the real implications of having a parent or spouse without a legal status. NSEERS has also raised a number of public policy questions. Public outcry, governmental criticism of the program, and judicial challenges demonstrate that the program has not necessarily benefited the United States’ domestic and foreign policy. Today, the United States is at a critical and historic juncture: a new Administration presents an opportunity to restore America’s character, and reexamine and overhaul ill-conceived policies implemented in the last eight years. With this in mind, this white paper offers the following recommendations to the Obama Administration: 1. The Administration should terminate the NSEERS program and repeal related regulations. 2. Individuals who did not comply with NSEERS due to lack of knowledge or fear should not lose eligibility for or be denied a specific relief or benefit, to which they are otherwise NSEERS: The Consequences of America’s Efforts to Secure Its Borders 6 eligible. Similarly, the Administration should provide relief to individuals who were placed in removal proceedings because of their participation in NSEERS. 3. The Administration should allow individuals impacted by NSEERS, who have been removed, to return to the United States, should they have a basis for re-entering the United States. Special consideration should