August 16, 2010
The Honorable Janet Napolitano
Secretary of Homeland Security
U.S. Department of Homeland Security
Washington, DC 20528
Dear Secretary Napolitano:
We are writing to follow-up on our letter dated December 7, 2009, in which we requested that your Department terminate the National Security Entry-Exit Registration System (NSEERS). We have since been informed that your office is in the process of reviewing the NSEERS program, which we welcome as a positive step forward.
We urge you to terminate NSEERS, particularly in light of the recent shift away from racial and religious profiling as evidenced by the rescission of the Transportation Security Administration’s (TSA’s) screening policy in April 2010, the continued dissemination of inaccurate information on NSEERS, and the lack of understanding by some of Department of Homeland Security’s (DHS’s) own employees about the current status of NSEERS. In addition, we are providing you with proposed policy considerations and practicable solutions to be implemented in the post-termination stages.
I - Relevant Developments since our December 7, 2009 Correspondence:
A) Movement Away from Policies Based on Racial and Religious Profiling
Since our last correspondence, we welcomed the rescission of the TSA screening policy,[i] which targeted travelers and nationals from fourteen predominantly Muslim countries--including U.S. citizens--for extra scrutiny in international airports. This rescission signaled a change in the structure of national security policies, mainly a shift away from policies based on racial, religious, and national origin profiling to policies based on intelligence-driven information.
NSEERS and the now-defunct TSA policy share one common denominator: the targeting of individuals based on their country of origin and/or religion. We call on your Department to take prompt action to terminate NSEERS, applying a similar reasoning to that which your Department articulated when rescinding the TSA policy.
B) Persistence of Inaccurate Information Regarding NSEERS
We are particularly concerned that dissemination of inaccurate information regarding NSEERS registration procedures continues to this day, eight years after its initial implementation. This was evidenced by the May 5, 2010, notice published in the Federal Register (Vol. 75, No. 86), 75 FR 24721. The notice stated that NSEERS:
“. . . requires certain nonimmigrant aliens to make specific reports to USICE upon arrival, approximately 30 days after arrival, every 12 months after arrival; upon certain events, such as change of address, employment or school; and at the time they leave the United States.”
This information, however, was partly overruled by DHS’s 2003 interim rule suspending the automatic 30-day and annual registration requirements.[ii] Moreover, the procedures for special registration at departure remain intact and are conducted by Customs and Border Patrol (CBP) agents or a CBP field office director and not by U.S. Immigration and Customs Enforcement (USICE), as stated in the May 5, 2010, notice.[iii]
Unfortunately, such dissemination of inaccurate information on NSEERS is not new. When NSEERS was initially rolled out, government officials reported the existence of contradictory or inaccurate NSEERS-related notices.[iv] Recent incidents shared by NSEERS registrants at ports of entry also illustrate the continued dissemination of inaccurate information on the current status of NSEERS. Specifically, community-based organizations have received reports that confusion remains among CBP agents as to where NSEERS currently stands and/or what it requires.[v]
The initial lack of adequate notice of the program coupled with the continued dissemination of inaccurate information on the program provide great rationale for the need to terminate NSEERS. The structure and scope of the program have been immensely challenging to follow, have encouraged racial profiling, and continue to profoundly harm individuals. The program has also placed a heavy burden on both registrants [vi] and employees of governmental agencies, many of whom lack sufficient understanding of the program’s requirements.
C) DHS OIG’s Audit of NSEERS
In November 2009, the Department of Homeland Security’s Office of the Inspector General (OIG) committed to undertake a review of the NSEERS program.[vii] The OIG has listed the audit in its Revised Annual Performance Plan as planned to commence by FY 2010.[viii] It is our understanding that the OIG is currently working with top DHS leadership to further define the scope of the audit; however, no specific timeline has yet been determined.
While we urge you to act promptly to terminate NSEERS, we still believe that the OIG audit should be thoughtfully undertaken and fully completed following termination of the program. This audit presents a unique opportunity to identify the problems and burdensome costs incurred both by government agencies and registrants and to provide details about the impact of NSEERS on affected communities, which could inform the kind of solutions needed post-termination. Such careful documentation of the problems with NSEERS can help ensure that similar programs with widespread detrimental effects are not implemented in the future.
In short, we view your Department’s review and the OIG’s audit as separate and independent. We hope you will decide to terminate NSEERS promptly, and that the OIG’s audit will still proceed after the termination of the program. Similarly, should any prospective termination be on the horizon, we call for such termination not to be delayed due to the planned OIG’s audit.
II - Practicable Immigration Solutions for Those Currently Adversely Affected by
If NSEERS is terminated, we are eager to provide your Department with our expertise in finding meaningful solutions for those individuals whose immigration status has been negatively affected by NSEERS. In addition, we can provide your Department with a list of immigration law practitioners who deal with NSEERS cases on a daily basis and who can aid in arriving at practicable solutions.
In addition to urging the termination of NSEERS, we also recommend that individuals who were unfairly affected be provided relief. These recommendations include but are not limited to:
1. Individuals who did not comply with NSEERS due to a lack of knowledge or fear of negative consequences should not lose eligibility or be denied specific relief or a benefit, to which they are otherwise eligible. Similarly, the Administration should provide relief to individuals who were placed in removal proceedings because of their participation in NSEERS.
2. 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 be given to individuals with immediate family members living in the United States and/or those with pending benefit applications.[ix]
Moreover, in the short term, U.S. Citizenship and Immigration Services (USCIS) needs to make sure that discretion is favorably exercised towards those eligible for a current or future immigration benefit, but who may not have complied with an NSEERS requirement.[x] Equally important, USCIS needs to discontinue branding potential green card holders with a “willful failure to register” label without justification or foundation.[xi] This branding has taken place across the board in many local USCIS offices, without giving consideration to the many favorable factors and strong equities that an NSEERS registrant may have.
Finally, DHS should repeal or modify various NSEERS-related memos that conflict with the Meissner memo, which had specifically called on the then Immigration and Naturalization Service (INS) officers to take into account various factors when exercising prosecutorial discretion. Some of these factors include: Immigration status, length of residence in the U.S., criminal history, humanitarian concerns, immigration history, whether the alien is eligible or is likely to be eligible for other relief, effect of future admissibility, current or past collaboration with law enforcement authorities, community attention, and resources available to the then-INS.[xii] Sadly, many of the NSEERS cases would not have been a focus of the immigration agency had these factors been applied, thus saving resources and maximizing efficiency to several components of DHS.
III - Conclusion:
The continuing problems with NSEERS can only be remedied by terminating the program and providing relief for well-intentioned individuals affected by NSEERS.[xiii] Such termination would underscore your Department’s shift away from ineffective policies involving racial and/or religious profiling. It would also ensure that potential U.S. citizens negatively affected by residual impacts of the program are provided relief so that they can continue to enrich our great Nation.
Thank you in advance for your time and attention to this matter. Should you have any questions, you may contact Ms. Sara Najjar-Wilson, President of the American-Arab Anti-Discrimination Committee (on 202-244-2990, or at email@example.com), 1732 Wisconsin Avenue, NW, Washington, DC 20007; or Ms. Shoba Sivaprasad Wadhia, Clinical Professor and Director of the Center for Immigrants’ Rights at Penn State Dickinson School of Law (on 814-865-3823, or at firstname.lastname@example.org), Penn State Law, 121C Lewis Katz Building, University Park, PA 16802.
Finally, we respectfully request that we be provided with an update on your Department’s review of the program.
Sara Najjar-Wilson, President, American-Arab Anti-Discrimination Committee (ADC)
David W. Leopold, President, American Immigration Lawyers Association (AILA)
Dr. James Zogby, President, Arab American Institute (AAI)
Ali Noorani, Executive Director, National Immigration Forum (NIF)
Margaret Huang, Executive Director, Rights Working Group (RWG)
Deepa Iyer, Executive Director, South Asian American Leading Together (SAALT)
Shoba Sivaprasad Wadhia, Clinical Professor and Director of the Center for Immigrants’ Rights, Penn State Dickinson School of Law [xiv]
Arif Alikhan, DHS Assistant Secretary for Policy Development
David Heyman, DHS Assistant Secretary for Policy
Juliette Kayyem, DHS Assistant Secretary for Intergovernmental Programs
David Martin, DHS Principal Deputy General Counsel
Esther Olavarria, DHS Assistant Secretary for Policy
Margo Schlanger, DHS Officer for Civil Rights and Civil Liberties
[i] See Press Release, Am.-Arab Anti-Discrimination Comm., ADC Cautiously Welcomes Revised TSA Policy (Apr. 2, 2010), available at http://www.adc.org/media/press-releases/2010/april-2010/adc-cautiously-welcomes-revised-tsa-policy/; Press Release, Rts. Working Group, Rights Working Group Commends DHS’ Announcement to Rescind Fourteen Country Protocol (Apr. 2, 2010), available at http://www.rightsworkinggroup.org/content/right-working-group-commends-dhs%E2%80%99s-announcement-rescind-fourteen-country-protocol; Press Release, S. Asian Ams. Leading Together, New Airport Screening Policies (Apr. 2, 2010), available at http://saalt.presstools.org/node/35207.
[ii] Suspending the 30-Day and Annual Interview Requirements from the Special Registration Process for Certain Nonimmigrants, 68 Fed. Reg. 67578 (Dec. 2, 2003).
[iv] See Am.-Arab Anti-Discrimination Comm. & Penn St. U.’s Dickinson Sch. L. Ctr. For Immigrants’ Rts. NSEERS: The Consequences of America’s Efforts to Secure Its Borders 21 (2009), available at http://www.adc.org/PDF/nseerspaper.pdf [hereinafter NSEERS Report].
[v] NSEERS registrants filed such incidents and reports with the American-Arab Anti-Discrimination Committee.
[vi] See e.g., Posting of Shoba Sivaprasad Wadhia to Race Matters, http://endnseers.blogspot.com/2009/11/commentary-on-late-nseers-registration.html (Nov. 19, 2009). “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.”
[vii] See Press Release, American-Arab Anti-Discrimination Committee, Office of Inspector General at DHS to Audit NSEERS at the Request of ADC and Other Major Organizations (Nov. 19, 2009), available at http://www.adc.org/index.php?id=3524.
[viii] Off. Inspector Gen., Dep’t Homeland Sec., Revised Annual Performance Plan For FY 2010 56-57 (2010), available at http://www.dhs.gov/xoig/assets/OIG_APP_Rev_FY10.pdf. The audit will be specifically geared towards “(1) determin[ing] the effectiveness of NSEERS as a counterterror tool, focusing on the utility of the information collected, the uses to which that information has been put by DHS, and positive outcomes; (2) review[ing] the impact of NSEERS on the targeted communities; and (3) evaluat[ing] the degree to which NSEERS objectives could be met using other DHS data systems, specifically US-VISIT.”
[ix] See NSEERS Report, supra note iv, at 6-7.
[x] Posting of Shoba Sivaprasad Wadhia to Race Matters, http://endnseers.blogspot.com/2009/11/commentary-on-late-nseers-registration.html (Nov. 19, 2009).
[xii] See, e.g.; Memo from Doris Meissner, Commissioner of the Immigration and Naturalization Service, HQOPP 50/4 (Nov. 17, 2000).
[xiii] See NSEERS Report, supra note iv, at 6-7.
[xiv] Affiliation listed for informational purposes only.