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.”