Nov 21, 2009

The Momentum re. the Termination of NSEERS Is Growing

We would like to share with you today's Washington Post Op-ed on NSEERS. Co-authored by former CBP Commissioner Robert Bonner and National Security expert and Senior Fellow at the Council on Foreign Relations Edward Alden, the Op-ed also mentions the Department of Homeland Security Office of Inspector General's NSEERS audit to be conducted in early January 2010. Moreover, the Op-ed provides reasons as to why NSEERS needs to be abolished from a national security standpoint and perspective.

Below is the full text:

The wrong way to screen visitors

By Robert Bonner and Edward Alden
Saturday, November 21, 2009

Is traveling to the United States a "harrowing experience," as a Pakistani delegate to the International Olympic Committee claimed when the IOC rejected Chicago's bid to host the 2016 Games? The vast majority of the 25 million visitors arriving from overseas at U.S. airports each year experience no more than an inconvenience. But for hundreds of thousands, including Pakistanis such as the IOC delegate, it can be both difficult and unpleasant.

Men from Pakistan and two dozen other countries face onerous "special registration" procedures under the National Security Entry-Exit System set up after Sept. 11, 2001. While this was an understandable precaution in the aftermath of the attacks, more precise and effective measures have since been developed. The Department of Homeland Security inspector general agreed this week to audit the program, which was already under high-level review at the State Department. The Obama administration should promptly eliminate the program.

The Justice Department launched the system in 2002 to scrutinize the group thought to present the highest risk -- men from countries where al-Qaeda or other terrorist groups have a presence. Most visitors to the States are interviewed only by the U.S. Customs and Border Protection officer who inspects their passport. The men in the group, however, are automatically pulled aside for "secondary inspection" and are often kept waiting for hours. Even those who have visited the United States multiple times, or live here on work or student visas, are subject to detailed questioning and searches before being allowed to enter the country.

Further, these men can leave the country only through designated airports where the federal government has set up exit controls. Failure to "check out" through these airports could result in an individual being barred from returning or emigrating.

Faced with such obstacles, many men from these countries have given up on coming to the United States. While the number of visits from overseas had nearly rebounded to pre-Sept. 11 levels before the recession, travel from Muslim countries remains sharply depressed. This widens the gulf between the United States and the Islamic world, which further inhibits U.S. efforts to counter extremist propaganda in some regions. Meanwhile, surveys in Arab countries have found that favorability toward the United States is 25 to 30 percent higher among those who have traveled to the States or have a relative living here.

The special-registration program has also soured U.S. relations with some friendly countries. Indonesia, the largest majority-Muslim country, was outraged to be included in the program despite showing strong support for the United States after the 2001 attacks. Today, the number of visitors from Indonesia is about half that of a decade ago.

Such costs would be worth it if the program proved effective in stopping or deterring terrorists from entering the country. But the 9/11 Commission found no evidence of this, and none has been offered since.

U.S. border screening procedures have improved tremendously in recent years, which further diminishes the value of the special-registration program. Now, all visitors who require visas -- including citizens from the countries requiring "special registration" -- are interviewed by U.S. consular officers and fingerprinted. The prints are checked again by Customs and Border Protection upon the traveler's arrival in the States.

Airlines must provide detailed information on all arriving passengers, giving customs officials hours to run names through the agency's automated risk assessment system. That's much better than having 60 seconds at the primary inspection kiosk. These names are checked against the terrorist watch list and are scrutinized for various intelligence-driven indicators of potential terrorist threat. Those deemed potential threats are subject to secondary counterterrorism questioning by specially trained border officers.

These more careful methods are effective. Raed al-Banna, a young man with no history of terrorist links, was pulled aside at Chicago's O'Hare airport in 2003 after the computer targeting system identified him as deserving additional scrutiny. After questioning he was refused entry and sent back to Jordan; two years later, he killed 132 people in a suicide car bombing in Iraq.

We know that terrorist groups are recruiting in Europe and have sought to train female operatives. A program that pulls aside only men from Muslim countries is not the sophisticated response required to counter such efforts. Further, eliminating the program would in no way restrict U.S. border officials' authority to question and search anyone; it would simply end the automatic scrutiny of a certain class of individuals.

As the United States continues the struggle against terrorism, it should constantly evaluate the best tools at hand. Special registration is not one of these, and it should be abolished.

Robert Bonner, the first commissioner of Customs and Border Protection at the Department of Homeland Security, is senior principal at Sentinel HS Group, a Vienna-based homeland-security consulting firm. Edward Alden, a senior fellow at the Council on Foreign Relations, was project director for the recent Independent Task Force on U.S. Immigration Policy.

Nov 20, 2009


There are some new positive developments that we would like to share: the Office of Inspector General (OIG) at the Department of Homeland Security (DHS) announced that it will conduct an audit on NSEERS in early January 2010. For more information, please view ADC's press release on the issue:

Nov 19, 2009

Commentary on Late NSEERS Registration from Shoba Sivaprasad Wadhia, Penn State Law’s Center for Immigrants’ Rights:

Since the ADC and Penn State Law's Center for Immigrants' Rights report, last March, we have continued to engage the agency, advocates, and the public about ongoing concerns with the NSEERS program. Recent anecdotes from practitioners suggest a continuing disparity from region to region regarding late registration. Some of these stories are featured below. In some regions, men continue to be placed into removal proceedings based on their "failure" to register. This wastes precious EOIR resources, and moreover reflects a poor judgment or failure of DHS to exercise prosecutorial discretion prudently and favorably toward individuals who present strong equities. In other regions, late registrants are not being placed into removal proceedings but instead are being required to undergo an interview and exchange dense correspondence with ICE and/or USCIS in order to be "cleared" for late registration. In some cases, local USCIS offices continue to misinterpret any noncompliance with registration as a "willful" failure to register, thereby subjecting individuals to immigration and criminal-related penalties. In some cases, this means that individuals who are employed in the United States and/or married to a United States Citizen are being denied green cards based on a “failure” to register. The foregoing problems are not just related to poor discretion and burdensome agency costs, but in fact reflect a damaging domestic and foreign policy that can only be remedied by terminating the NSEERS program and providing reprieve for well intentioned individuals impacted by the program. In the short term, DHS, DOJ and DOS must ensure that prosecutorial and adjudicatory discretion are favorably exercised toward individuals who are eligible for a current or future immigration benefit, but who may have not complied with an NSEERS requirement. Similarly, DHS must discontinue branding would-be green card holders with a "willful failure to register" without justification or foundation. Finally, DHS must modify or repeal the various NSEERS-related memos that conflict with the spirit and language of the Meissner memo on prosecutorial discretion. Special thanks to attorneys Malea Kiblan and Denyse Sabagh for assisting with collecting the stories shared below.


Redacted Email from Denyse Sabagh, November 16, 2009:

“I am writing to you to advise you of a Late Registration interview I had a couple of weeks ago, October 29, 2009 which makes the case as to why it doesn’t work and why unjust decisions are made. It also points out very effectively why NSEERS Registration needs to go.

My client had a deportation hearing in October, 2009. The Judge was going to grant adjustment based upon an I-130 USC approved spouse petition and I-485. They have a young child. However, because the trial attorney kept pushing on the fact that my client didn’t register, the judge said we needed to register and gave us until Dec. to register him. My client had not received the letter from CIS during the adjustment process requesting proof of late registration.

I called ICE about coming in for a late registration interview. I asked if they wanted his A # or needed information. They said no, just come in. We got to ICE, Sterling, Va. about 9 am. We waited about 45 minutes. We were then called in. The first question asked was - where is the CIS letter requesting late registration. We advised he didn’t get one. He was then asked questions such as what was the purpose of your visit, do you go to religious services, do you read the newspapers, or listen to the radio. He was asked why he didn’t register. He stated that he did not know about it and didn’t know what it was. He had just turned 17 when he entered the US in June, 2002. He was in high school, barely spoke English and was in a valid V-2 status. His family didn’t speak much English at the time, were not involved in the community and didn’t know about Registration. Registration started for Jordanians in Feb. 2003, I believe. He was asked about what he had done since high school, what he is doing now, marital status, phone numbers etc. I provided a copy of my pleading file to the agents along with copies of applications and approval notices. They advised they needed to check some things and to come back at about 11:15 am.

We came back at 11:15 and were advised that a meeting had been called so we needed to wait. After about 45 minutes – 1 hour, we were called back in. They advised they would fingerprint him and photograph him. I advised I wanted to be present for the rest of the interview. I waited about 10 minutes and knocked on the door. I advised that I wanted to be present. I was advised it was their policy that lawyers could not be present. I explained that I had represented many NSEERS registrants and that lawyers were always allowed to be present. In addition, lawyers were allowed to be present at late registrations. He checked with his supervisor, returned and let me in. This time [the] supervisor was also present. No sooner was I inside, they said they were going to stamp “willful failure” to register in his passport. I was surprised given the fact that he was in status, the clarity, detail, consistency of his answers and his minority. I asked why. They said they were following their guidelines. I asked what those guidelines were. He sent one of the agents out. He returned with the Group IV registration instructions for the initial registration period. I explained that these were just instructions for the initial registration. They relied on them to prove that he knew he was supposed to register and didn’t. It made no sense. I explained again that this young man had no reason not to register, he was in valid status, had just turned 17, didn’t speak English, was trying to deal with a new high school in the US and had he known about Registration, he would have registered. The agents said it was no excuse. They said absent catastrophic illness or jail, there was not a valid excuse. I explained that is not a correct standard. They had to determine if it was “willful.” They said that no one would be a “willful” violator if all they had to say was they didn’t know. I explained that each person was judged on his own circumstances. I also explained that I recently had taken [his] brother in to change his “willful failure” to “regist[er]” under the same circumstances and it was granted. They said they couldn’t speak to that (even though [the supervisor] is one of the agents with whom I spoke). I was adamant that I didn’t want a “willful failure stamp” as there was no reason why this young man shouldn’t be granted adjustment. The supervisor said they would only stamp [h]is passport with willful failure if they did it that day. He offered to talk to District Counsel and have us come back. He said we would hear from him in 2 weeks. That was last Friday, November 13. To date, we have not heard from them. I have left messages for a Deputy Special Agent in Charge in Fairfax and have had no responses.”


Email from Sophie Feal, November 2, 2009:

“In the past few years, I‘ve done two of these with success in Buffalo, NY. They found the failure [to register] was not willful (I had thoroughly briefed it and attached a sworn affidavit), then reg’d the person, then granted the 485 [Adjustment of Status].”


Email from Paul Soreff, October 30, 2009:

Here in Seattle the way it has worked is that if it comes up during the interview, the AOS [Adjustment of Status] case is put on hold to allow the person to go to ICE to late register. There they have a very simple process and accept the registration and then the AOS goes forward. I have done this a couple of time[s] in the past (more than 1 yr ago) for folks. However I believe the process may be different now since I think I heard that the local ICE office no longer has folks to do the registration. So other attorneys here may have more current info.”


Excerpt from ADC-Penn State Report NSEERS: The Consequences of America’s Efforts to Secure Its Borders, March 31, 2009:

“Mr. Nasser, a native of Morocco, came to the United States as a visitor in 2001, and fell in love with and married Patricia Amy Stewart, an American citizen. They have three young children, all of whom were born in the United States. Mr. Nasser stated in his complaint that he was not aware of the requirement for registration. According to Mr. Nasser’s complaint, “at all times relevant hereto, Plaintiff in good faith attempted to comply with the special registration requirements of the NSEERS program established by the Attorney General which consisted of multiple and confusing notices published in the Federal Register expanding the class of affected foreign citizens and nationals, changing the deadlines for compliance and listing varying periods of admission.” Ms. Stewart filed an immediate relative petition on her husband’s behalf on February 5, 2002, and on that same date Mr. Nasser filed an application for adjustment of status and work authorization. Pursuant to his pending adjustment, Mr. Nasser appeared at a local DHS office on June 3, 2003 for the processing of his employment authorization application. Despite being called in to process his work authorization, at no point did DHS advise Mr. Nasser that he needed to register under NSEERS. On January 19, 2006, Mr. Nasser underwent special registration as a condition of his pending application for adjustment of status. On March 21, 2006, Nasser was denied adjustment of status and was found to have “willfully” violated NSEERS. This has left Mr. Nasser in the difficult position of being ineligible to work because he has no legal status in the United States, and has harshly impacted him and members of his immediate family.”