This blog will feature stories and current developments on the government’s special registration program, and immigration policies that treat people differently based on race, religion, or ethnicity. The goal is to educate the public about a little known program that continues to impact thousands of individuals and their families and motivate the government to reject programs that target foreign nationals for immigration enforcement on the basis of race, ethnicity, or religion.
HIGHLAND PARK — Some much-needed good news has been received by the Indonesian community and its supporters and it comes at the heels of yet another Indonesian immigrant finding sanctuary at a borough church rather than face deportation by the U.S. Immigration and Customs Enforcement officials.
The New Jersey assembly approved a resolution urging federal officials to pass HR-3590 — the Indonesian Refugee Family Protection Act. If passed, the federal bill, introduced in the U.S. House of Representatives by Reps. Carolyn Maloney, D-N.Y., and Frank J. Pallone Jr., D-N.J., will allow qualifying Indonesian immigrants the opportunity to reopen asylum claims that were denied solely for missing a one-year filing deadline.
In addition, U.S. Senator Frank R. Lautenberg, D-N.J., announced Friday that he will introduce a companion bill to HR-3590 in the U.S.Senate next week.
“These Indonesian families sought refuge in our country to keep their families safe from harm and religious persecution,” Lautenberg said in a news release. “America has a long history of protecting refugees from persecution and this legislation gives these families a chance to legally seek asylum and to continue contributing to our country.”
In the late 1990s and early 2000s, many Indonesian Christians came to the United States on tourist visas to escape religious persecution in their homeland.
At the request of the U.S. government, many of the Indonesians registered with the government under a program requiring the registration of non-citizen males from certain countries following the terrorist attacks on September 11, 2001. Following this registration, the government began deportation proceedings against some Indonesians who had overstayed their visas.
Many of these families have lived, worked, and paid taxes in the United States for years and now have children who are U.S. citizens. A number of these families have settled in areas surrounding Highland Park, where they have become a part of the community.
The Rev. Seth Kaper-Dale, co-pastor of the Reformed Church of Highland Park, which has granted sanctuary to nine immigrants in danger of deportation, was grateful to legislators for their support.
“It’s a huge affirmation for us that our elected officials agree with the concerns that we are highlighting and that there is a real human rights concern for people we love deeply,’’ Kaper-Dale said. “These affirmations will make us push harder than ever. It show that legislators are taking notice.’’
The state’s legislative resolution was sponsored by Assemblyman Peter Barnes III, D-Middlesex, and Assemblyman Patrick Diegnan Jr., D-Middlesex.
“Many of these individuals and families came to this country in the 1990’s to escape religious persecution and since then have become vibrant members of our community,’’ said Barnes, who visited the immigrants staying at the Reformed Church of Highland Park in May. “Deporting these people will sever families and cause a great deal of financial and other unforeseen problems for both them and our community.’’
Barnes said he believes the policy will protect friends and neighbors from being sent back to a place of unspeakable religious violence.
“We cannot in good conscience let our friends be sent back to a place where churches and homes are burned, lynching occurs and the penalty for being accused of blasphemy is death,’’ he said.
Congress of the United States Washington, DC 20515
Chair Rep. Judy Chu
Vice-Chair Rep. Madelene z. Bordallo
Whip Rep. Colleen Hanabusa
Chair Emeritus Rep. MichaelM. Honda
Sen. DanielK. Akaka Sen. DanielK. Inouye Rep. Xavier Becerra Rep. Hansen Clarke Rep. EniFaleomavaega Rep. AlGreen Rep. Mazie K. Hirono Rep. Barbara Lee Rep. Doris 0. Matsui Rep. Gregorio Sablan Rep. Bobby Scott
Rep. Karen Bass Rep. Howard Berman Rep. Gerald Connolly Rep. John Conyers, Jr. Rep. Joseph Crowley Rep. Susan Davis Rep. Bob Filner Rep. RaulM. Grijalva Rep. Janice Hahn Rep. Zoe Lofgren Rep. Carolyn Maloney Rep. Betty McCollum Rep. Jerry McNerney Rep. Grace Napolitano Rep. Charlie Rangel Rep. Laura Richardson Rep. Lucille Roybal-Allard Rep. Linda SAnchez Rep. Loretta Sanchez Rep. Janice Schakowsky Rep. Adam Schiff Rep. Brad Sherman Rep. Adam Smith Rep. Jackie Speier Rep. Pete Stark Rep. Chris Van Hollen Rep. Lynn Woolsey
June 21, 2012
The Honorable Janet Napolitano Secretary of Homeland Security U.S. Department of Homeland Security
Dear Secretary Napolitano,
We, on behalf of the 43 Members of the Congressional Asian Pacific American Caucus (CAPAC), write to express concern about the National Security Entry-Exit Registration System (NSEERS), which went into effect following the terrorist attacks of September l1th and primarily targeted Muslim and Arab visitors to the United States. The NSEERS program directly challenges our country's fundamental principles of fairness and equality and is based on the false assumption that people of a particular religion or nationality pose a greater national security risk and should be subject to profiling. This program harkens back to a dark day in our country's history where innocent people were interned based on their Japanese ancestry.
The NSEERS program was first applied to select visitors at ports of entry and later expanded to certain individuals already living in the United States. Specifically, the domestic portion of NSEERS required certain male visitors from 25 specified countries to register at local immigration offices for fingerprints, photographs and lengthy interrogations. All but one of the 25 specified countries was predominantly Muslim. According to statistics provided by the Department of Homeland Security in 2003, over 80,000 individuals registered under the program and more than 13,000 were placed in removal proceedings. At its height, the program cost over $10 million per year, 1 yet no terrorism convictions resulted from the program?
While the NSEERS program has undergone several changes since it was transferred to the Department in 2003, it still remains on the books today, available for resurrection when our country's national security policies aim to target a new group for discrimination.
In April of 2011, the Department announced that it was delisting the countries subject to registration under NSEERS, essentially suspending the program.3 However, the Department failed to address how the individuals impacted by the program would benefit from this policy shift.
In April of 2012, the Department issued a memorandum on NSEERS addressing this very question.4 The April 2012 memo calls for DHS personnel to determine whether or not an individual's noncompliance with NSEERS was "willfu1."5 Those determined to have willfully failed to comply with NSEERS may continue to face negative immigration consequences. According to the memo, willful noncompliance includes fear of immigration consequences. This reflects a complete lack of understanding of the widespread and palpable fear NSEERS caused as Arabs, Muslims, Middle Easterners, and South Asians saw members of their communities held in overcrowded jails, disappear in the middle of the night, and deported without due process. In addition, the memo places the burden of proving non-willful compliance on the individual, demonstrating a lack of accountability on the part of the Department regarding NSEERS and its reliance on discriminatory profiling. The memo also indicates that DHS can continue to use information obtained through this discriminatory program for various purposes.
We commend the Department on issuing this memo and making significant steps in addressing the residual impacts of NSEERS. However, we are disappointed by the glaring gaps in the memo and DHS' policy analysis on how to move forward. Specifically, the April 2012 Memo continues to leave the NSEERS infrastructure intact. In addition, the memo fails to address how all individuals impacted by the program will be treated. The memo focuses only on those who failed to comply with NSEERS, leaving unanswered the question of how those who complied with the program but continue to face negative immigration consequences. Third, the memo sets forth a narrow definition of non-willful noncompliance, citing extreme scenarios that will limit the ability for individuals to benefit from the memo. Finally, the memo states that DHS will continue using information obtained through this program.
The Department should revise its policy and the April 2012 memo to ensure that no individuals impacted by the program continue to face negative consequences solely as a result of NSEERS. The Department should also acknowledge how the program violates valued principles of fairness and equality and cease using data acquired through this tainted program. Most importantly, the Department should completely and fully dismantle NSEERS so that it is never resurrected. Notably, the Department's own Office of the Inspector General has called for the full termination of the program and has classified the data obtained through the program as unreliable.6
We urge the Department to immediately address these concerns about NSEERS and direct the components within DHS to act accordingly as it establishes implementing policies. Consistent with our country's commitment to equal protection under the law, DHS should work to end the last vestiges of NSEERS and ensure that no one in this country is subject to inappropriate profiling or discrimination. We look forward to your prompt response.
Sincerely, JUDY CHU Member of Congress CAPAC Chair
MIKE HONDA Member of Congress CAPAC Immigration Taskforce Chair
1 See Department of Homeland Security Office of lnspector General, Information Sharing on Foreign Nationals: Border Security (Redacted), February 2012 available at http://www.oig.dhs.gov/assets/Mgmt/2012/0IGr 12-39 Feb12.pdf at 10. 2 Doris Meissner and Donald Kerwin,DHS and Immigration:Taking Stock and Correcting Course available at www.migrationpolicy.org/pubs/DHS Feb09.pdf. 3 Removing Designated Countries from the National Security Entry-Exit Registration System (NSEERS), 76 Fed. Reg. 82, 23830-23831 (Apr. 28, 2011) available at https:ljwww.federalregister.gov/articles/2011/04/28/2011-10305/removing-designated-countries-from-national-security-entry-exit-registration-system-nseers! 4 See Memo on Department of Homeland Security Guidance on Treatment of Individuals Previously Subject to the Reporting and Registration Requirements on the National Security Entry Exit Registration System, April16, 2012 available at Senator Dick Durbin: Opening Statement at the Hearing on Ending Racial Profiling in America, Subcommittee on the Constitution, Civil Rights, and Human Rights (Apr. 2012), available at http://www.judiciary.senate.gov/pdf/12-4-17DurbinStatement.pdf. 5 See id. See also Denyse Sabagh and Shoba Sivaprasad Wadhia, DHS Releases Long-Awaired Memo on Controversial 9/11 Program, May 3, 2012 available at http:l/endnseers.blogspot.com/2012/05/dhs-releases-long awaited-memo-on.html. 6 See Department of Homeland Security Office of Inspector General, Information Sharing on Foreign Nationals: Border Security (Redacted), February 2012 available at http://www.oig.dhs.gov/assets/Mgmt/2012/0IGr 12-39 Febl2.pdf.
"The NSEERS program contained all the features of a bad policy, as it targeted visitors based on their religion, ethnicity, and nationality; caused thousands of men to face detention, deportation, and other immigration consequences; and proved to be ineffective as a counter terroroism tool," said Professor Shoba Sivaprasad Wadhia, Director of the Center. She stressed that reforms recommended in the report need to be implemented in order to help remedy some of the damage caused by the program.
“One of our main goals was to describe the impact a program like this can have on a community,” said Constantin Schreiber who will graduate from Penn State’s School of International Affairs this summer. He worked with Penn State Law student Mohita Anand ’13 doing extensive research on the laws, policies, and statistics related to implementation of NSEERS and interviewing individuals connected directly to the fallout from the program. “When you read about the NSEERS program, you often don’t get a sense of the personal stories…the purpose of our work is, in addition to providing a policy analysis and recommendations, to give people a deeper understanding of what happened to individual lives as a result of NSEERS.”
The report follows earlier work by the Center on the “end” of NSEERS as announced by the Department of Homeland Security last April. Professor Wadhia pointed out that in spite of this announcement, there was no plan for how to resolve countless open issues. “You have people who are still being penalized for either registering or not registering under the NSEERS. Imagine an Iraqi husband of a U.S. citizen wife who has been living and working in the U.S. but is denied a green card based on his marriage because he was afraid to register under NSEERS when he was 17 years old," she said. "The NSEERS program has brought more than a decade of fear and damage to families and communities." The report recommendations include that the government dismantle infrastructure of the program and remove residual penalties resulting from NSEERS.
Schreiber is moving on to a PhD. Program in Education Policy and Evaluation where he will take with him the skills he said he developed while working on this project. “The project helped me develop my communications skills in a professional environment along with my project management skills. This particularly applies to the the interviews we conducted with stakeholders. It really is an analytical project with real-world impact.”
The Honorable Janet Napolitano Secretary U.S. Department of Homeland Security Washington, DC 20528
Dear Secretary Napolitano:
The undersigned organizations write to express our concerns regarding the Department of Homeland Security’s (DHS) April 16, 2012 memorandum ("April 2012 Memo") on the National Security Entry-Exit Registration System (NSEERS).1 While our organizations appreciate the initial measures outlined in the memo which may potentially benefit some individuals affected by NSEERS, we remain deeply concerned by its significant limitations.2 Specifically, we are disappointed that it retains the program’s regulatory framework; fails to provide redress for all individuals who continue to face adverse immigration consequences as a result of the program; and lacks information regarding the status of databases created under the program. We urge DHS, in consultation with individuals and organizations with expertise on NSEERS, to issue and implement regulations that terminate the program in its entirety; remove residual penalties associated with NSEERS for all affected individuals; and discontinue the use of data collected through NSEERS by DHS and other law enforcement agencies.
Notably, the April 2012 Memo to the U.S. Citizenship and Immigration Services (USCIS), U.S. Customs and Border Protection (CBP), and U.S. Immigration and Customs Enforcement (ICE) sets up a framework for relief for certain NSEERS-related cases.3 Specifically, it provides a definition for "willful" and instructs that in cases "where DHS personnel have determined that noncompliance was not willful, DHS should not pursue immigration enforcement action, nor deny any immigration benefit, solely on the basis of the alien's failure to comply with NSEERS."4 However, the memo nevertheless raises numerous concerns, including the fact that it retains the program’s regulatory framework, fails to articulate a policy for individuals who actually did comply with NSEERS, and adopts a potentially vague definition of "willful."5
NSEERS has been widely acknowledged as a counterproductive response to the September 11th attacks and a clear example of racial and religious profiling. The program has been condemned for its ineffectiveness for counterterrorism purposes and its discriminatory nature by both advocacy organizations and members of Congress. In February 2012, even DHS’ own Office of Inspector General called for a full termination of NSEERS as the "database that supports this program is obsolete" and it "does not provide any increase in security."6 Yet, rather than eliminating NSEERS, the April 2012 Memo maintains its core regulatory architecture, raising the possibility that it could be resurrected by DHS in the future. Furthermore, it continues to allow DHS to use information that was obtained through or in connection with the NSEERS program.7
We urge DHS to take additional measures in order to achieve the goal of eliminating the program and its effects on families and community members. Specifically, we urge DHS, in consultation with individuals and organizations with expertise on NSEERS, to issue and implement regulations that: - Dismantle the regulatory framework of NSEERS in its entirety and instead adopt programs that target individuals based on legitimate and particularized evidence, not identity-based criteria such as race, religion, ethnicity, gender, or nationality - Remove residual NSEERS penalties, both immigration and criminal, by regulation for all individuals affected by NSEERS and apply such regulations retroactively - Discontinue the use of data collected through NSEERS by DHS and other law enforcement agencies for other purposes
Thank you for your attention to this matter. If you have any questions or require further information, please contact Sameera Hafiz, Policy Director at Rights Working Group, at email@example.com or Priya Murthy, Policy Director at South Asian Americans Leading Together, at firstname.lastname@example.org.
Adhikaar The American Civil Liberties Union American Immigration Lawyers Association American Muslim Voice American-Arab Anti-Discrimination Committee Americans for Immigrant Justice (formerly Florida Immigrant Advocacy Center) API Chaya Apna Ghar, Inc. Arab American Action Network Arab American Association of New York Arab American Institute Asian American Justice Center, a member of Asian American Center for Advancing Justice Asian & Pacific Islander American Health Forum Asian Law Alliance Asian Law Caucus Asian Pacific American Labor Alliance Asian Pacific American Labor Alliance - DC Chapter Asian Pacific Partners for Empowerment, Advocacy, and Leadership (APPEAL) Bill of Rights Defense Committee Blacks in Law Enforcement of America Causa Justa :: Just Cause Center for Constitutional Rights Center for National Security Studies Chhaya CDC Coalition for Humane Immigrant Rights of Los Angeles (CHIRLA) Community to Community Coney Island Avenue Project The Constitution Project Council of Peoples Organization Council on American Islamic Relations Council on American Islamic Relations - Florida Council on American Islamic Relations - Los Angeles Council on American Islamic Relations - New Jersey Council on American Islamic Relations - St. Louis Counselors Helping (South) Asians/Indians Creating Law Enforcement Accountability & Responsibility (CLEAR), CUNY School of Law DRUM - Desis Rising Up and Moving Equality Alliance of San Diego County Families for Freedom Indo-American Center Interfaith Coalition on Immigration, Minnesota (IOCM, Inc.) International Center for Advocates Against Discrimination Japanese American Citizens League Khadijah's Caravan Laotian American National Alliance, Inc. Latina Institute for Reproductive Justice Lawrence Action Network for Diversity (LAND) The Leadership Conference on Civil and Human Rights Maitri Massachusetts Immigrant and Refugee Advocacy Coalition Minority Executive Directors Coalition Muslim Advocates Muslim Legal Fund of America Muslim Public Affairs Council NAACP National Asian Pacific American Families Against Substance Abuse National Fair Housing Alliance National Immigrant Solidarity Network National Immigration Forum National Network for Arab American Communities National Network for Immigrant and Refugee Rights NC Immigrant Rights Project North American South Asian Bar Association (NASABA) OCA OneAmerica Priority Africa Network Raksha Reformed Church of Highland Park Rights Working Group Sakhi for South Asian Women San Diego Immigrant Rights Consortium Sikh American Legal Defense and Education Fund (SALDEF) The Sikh Coalition Sneha, Inc. South Asian American Policy & Research Institute (SAAPRI) South Asian Americans Leading Together (SAALT) South Asian Bar Association of New York South Asian Council for Social Services (SACSS) South Asian Network South Asian Youth Action (SAYA!) Southern Border Communities Coalition Tennessee Immigrant & Refugee Rights Coalition UNITED SIKHS The Westchester Square Partnership Who is My Neighbor? Inc. (WIMNI) The Woodhull Sexual Freedom Alliance Cc: John Sandweg, Counselor to the Secretary and Deputy Secretary, DHS Kelly Ryan, Acting Deputy Assistant Secretary, DHS Francis Cissna, Director of Immigration Policy, DHS Tamara Kessler, Acting Officer for Civil Rights and Civil Liberties, DHS David Aguilar, Acting Commissioner, CBP Alejandro Mayorkas, Director, USCIS John Morton, Director, ICE Cecilia Muñoz, Director, White House Domestic Policy Council Felicia Escobar, Senior Policy Director for Immigration, White House Domestic Policy Counsel Julie Rodriguez, Associate Director of Latino Affairs and Immigration, White House Office of Public Engagement
------------------------------------------------------------------------------------------------------------- 1 As you are aware, NSEERS was established in 2002 by the Department of Justice and resulted in a wide-scale registration program targeting male visitors from countries with Muslim-majority populations. The implementation of NSEERS was controversial from the start because of the discriminatory nature of the program, lack of notice or accurate information about the registration requirements, and resulting immigration consequences. This led to widespread fear and confusion within Arab, Middle Eastern, Muslim, and South Asian communities across the country resulting in many community members not registering or experiencing harsh immigration consequences, regardless of compliance. Though the program has undergone some changes since it was inherited by the DHS in 2003, targeted visitors were subject to NSEERS until April 2011. See American Arab Anti-Discrimination Committee and Penn State Dickinson School of Law, Center for Immigrants’ Rights, NSEERS: The Consequences of America’s Efforts to Secure Its Borders (March 2009), available at http://www.adc.org/PDF/nseerspaper.pdf; Race Matters Blog, available at http://endnseers.blogspot.com; DRUM - Desis Rising Up and Moving, The Sikh Coalition, UNITED SIKHS, South Asian Youth Action (SAYA!), Coney Island Avenue Project, Council of Peoples Organization, and South Asian Americans Leading Together, In Our Words: Narratives of South Asian New Yorkers Affected by Racial and Religious Profiling (March 2012), available at http://www.saalt.org/filestore/Reports/In%20Our%20Own%20Words%20Web%20FINAL.pdf; and Rights Working Group and Penn State Dickinson School of Law, Center for Immigrants’ Rights, The NSEERS Effect: A Decade of Racial Profiling, Fear, and Secrecy (Forthcoming, June 2012).In April 2011, DHS issued a rule (“April 2011 Rule”) stating that the 25 countries would be “delisted” and nationals and citizens from these countries who were previously subject to NSEERS would no longer be required to register. See 76 Fed. Reg. 23830, 23831 (Apr. 28, 2011); available at http://www.gpo.gov/fdsys/pkg/FR-2011-04-28/html/2011-10305.htm. While DHS asserted that the April 2011 Rule was the “end” of NSEERS, this rule did not eliminate the program’s underlying infrastructure and individuals continue to face adverse immigration consequences, including removal and denial of immigration benefits for which they are otherwise eligible. See “Letter to DHS Secretary Regarding Unfinished Work Around NSEERS” (May 17, 2011); available at http://endnseers.blogspot.com/2011/05/letter-to-dhs-secretary-regarding.html.2 See Press Release, “Rights Groups Continue to Call for Dismantling of NSEERS and Criticize Department of Homeland Security’s Refusal toRepudiate This Discriminatory Program” (May 7, 2012); available at http://endnseers.blogspot.com/2012/05/rights-groups-continue-to-call- for.html.3 Memorandum from DHS Deputy Secretary to USCIS, ICE, and CBP, “Department of Homeland Security Guidance on Treatment of Individuals Previously Subject to the Reporting and Registration Requirements of the National Security Entry Exit Registration System” (April 16, 2012); available at https://law.psu.edu/_file/NSEERSMemoPublic.pdf.4 Id. at 4.5 For further analysis of the April 2012 memo, see supra note 2; see also Denyse Sabagh, American Immigration Lawyers Association, “DHS Releases Long-Awaited Memo on Controversial 9/11 Program” (May 3, 2012); available at http://ailaleadershipblog.org/2012/05/03/dhs- releases-long-awaited-memo-on-controversial-911-program/.6 U.S. Department of Homeland Security, Office of Inspector General, “Information Sharing on Foreign Nationals: Border Security (Redacted),OIG-12-39” (February 2012); available at http://www.oig.dhs.gov/assets/Mgmt/2012/OIGr_12-39_Feb12.pdf.7 In fact, a recent Systems of Records Notice (SORN) issued by DHS demonstrates that NSEERS data is continuing to be “ingested” into the agency’s databases. In the SORN, DHS proposes “to update and expand the categories of individuals, categories of records, routine uses, accessprovisions, and sources of data stored in [the Automated Targeting System] ATS” and states that “ATS maintains copies of key elements ofcertain CBP databases … including: … historical National Security Entry-Exit Registration System (NSEERS).” See 77 Fed.Reg. 30297 [DocketNo. DHS-2012-0019] (May 22, 2012); available at http://www.gpo.gov/fdsys/pkg/FR-2012-05-22/html/2012-12396.htm.
May 15, 2012 Source: The Reformed Church of Highland Park
Dear Church Family and Extended Supportive Community,
Today a very important article was published in the New York Times by Kirk Semple. The article "A Sanctuary Amid Fears of Persecution at Home" is on page A23 and can also be found online. Please share the article as widely as you can.
The day of visitations in Washington was very effective. We visited 30 congressional offices and we believe we made some significant strides toward winning some hearts for this cause. In addition, the religious liberty commission of the National Council of Churches gave us many new contacts who may prove helpful.
Tomorrow, Friday, is the day when the General Secretary of the Reformed Church in America will visit our church. This is the first such visit since we've been pastors here. We will be holding a 1pm event that I hope you'll try hard to attend.
Saturday, from 2pm-7pm is our Family Freedom Festival. Also, it is the day for the debut showing of "Broken Asylum," a video that tells the story of our church's efforts around the family story of Harry and Yana. The movie will show at 3:30 and 7:30pm.
Your energy and love for our Indonesian brothers and sisters sustains me in this effort! Thanks and Peace, Pastor Seth
FOR IMMEDIATE RELEASE Contact: Keith Rushing, Rights Working Group, 202.591.3305. Nasreen Hosein, South Asian Americans Leading Together, 301.270.1855 Sandhya Bathija, American Civil Liberties Union, 202.675.2312 Ibrahim Hooper, Council on American-Islamic Relations, 202.744.7726 Kate Casa, National Network for Arab American Communities, 313.842.5119 Amardeep Singh, Sikh Coalition, 212.655.3095
May 7, 2012, Washington, D.C. –
The American Civil Liberties Union (ACLU), Council on American-Islamic Relations (CAIR), National Network for Arab American Communities (NNAAC), Rights Working Group, Sikh Coalition, and South Asian Americans Leading Together (SAALT) express serious disappointment regarding the Obama administration’s announcement last month that it will not fully terminate the National Security Entry-Exit Registration System (NSEERS), which, in the aftermath of September 11th, required certain nonimmigrant men from predominantly Muslim nations to register with the federal government. In addition, the administration has indicated that it will not provide redress to all people impacted by the discriminatory program.
Last month, the Department of Homeland Security (DHS) issued a memorandum about individuals impacted by the notorious NSEERS program. NSEERS was a counterproductive response to September 11th requiring certain non-immigrants to register at ports of entry and local immigration offices. Those required to register were from predominantly Arab, South Asian, or Muslim countries. The specifics of NSEERS revealed it to be a clear example of discriminatory and arbitrary profiling. The Obama administration has itself found that NSEERS “does not provide any increase in security.” DHS’ own Office of Inspector General has called for the full termination of NSEERS. In April 2011, DHS modified the program by “delisting” the countries whose nationals were subject to registration requirements, yet individuals still face harsh immigration consequences resulting from the program, including deportation and denial of immigration benefits for which they are otherwise eligible.
The administration’s most recent announcement on NSEERS did not fully terminate and dismantle the program. Instead, DHS offers limited relief to some individuals negatively impacted by this discriminatory program. Favorable consideration is limited to narrow circumstances, such as individuals who could not comply with the program because they received inaccurate information from the government or those who were hospitalized. The memorandum does not address relief for the many individuals who complied with the program but were found to lack immigration status nor those who were deported through secret proceedings that took place without due process of law.
“The recent issuance of the NSEERS memo by DHS misses the mark and fails to provide redress to all individuals who have been harmed by NSEERS,” stated Margaret Huang, executive director of Rights Working Group. “Further, the announcement leaves the program intact and states that information obtained through the discriminatory NSEERS program can continue to be used against individuals. The administration, yet again, has failed to address unconstitutional profiling based on race, religion, ethnicity and national origin,” continued Huang.
“While the initial measures outlined in this policy could potentially benefit a subset of individuals affected by NSEERS, it does not go nearly far enough. Despite the advocacy community’s years of engagement with DHS on NSEERS, the new announcement reveals the administration’s failure to grasp the widespread fear this program caused in South Asian, Arab, Middle Eastern and Muslim communities in America and how NSEERS has torn families apart,” stated Deepa Iyer, Executive Director of South Asian Americans Leading Together (SAALT).
The memorandum does not directly grant relief or benefits to individuals impacted by NSEERS but rather asks DHS agencies to develop guidance to implement the memorandum. The groups call on DHS to engage with advocacy organizations in developing this guidance to ensure that it grants meaningful relief. The groups also urge DHS to dismantle NSEERS completely and discontinue using information obtained through the program.
NSEERS (National Security Entry and Exit Registration System) was a controversial tracking program launched in the wake of 9/11 and aimed at visitors from predominantly Arab and Muslim countries. Those subject to NSEERS or special registration were fingerprinted, photographed and interrogated at ports of entry, inside a local immigration office and upon departure from the United States. The NSEERS program contained all of the features of bad policy, as it appeared to target individuals based on their religion and national origin; caused thousands of men to be placed in removal proceedings after complying with the program; and proved to be ineffective as a counter-terrorism tool.
Last month, the DHS released a memorandum to address the scores of people who did not register under NSEERS when they were supposed to. It clarifies that innocent individuals who failed to previously register should not suffer immigration consequences, such as a denial of a green card or a deportation charge. The memo could help a countless number of young men who have laid down roots, built families and/or been steadily employed in the United States but whose immigration status is vulnerable because of an NSEERS issue.
The April Memo provides that individuals who “willfully” failed to register under NSEERS in the past may be subject to immigration violations. It goes to elucidate the definition of willful as “deliberate, voluntary, or intentional, as distinguished from that which was involuntary, unintentional, or otherwise reasonably excusable”; instructs that the burden of proving that his registration was not willful is on the non-citizen (which may not be satisfied if failure to comply was based on fear or inconvenience); and notes that even where an individual is found to have “willfully” failed to register, the agency may exercise prosecutorial discretion in accordance with its litany of memoranda on the topic.
Previous adjudications of “willful failure” did not give credence to the applicant’s statements such as “I was 16 years old when I entered, I could barely speak English and my family was not involved in the community, I did not know about special registration.” In some cases, applicants were not even asked the question “Why didn’t you register”? ICE took the passports and stamped them “willful failure” and told individuals that everything would be fine. Things were not fine and many people ended up in deportation. People’s lives have been damaged due to this program and it is critical that DHS conveys its intent clearly to rectify this to the field with training and specificity. Without it, even with the April Memo, the hoped for result will fail.
The April Memo is an encouraging step but what is ultimately needed is a termination of NSEERS and a clear policy that protects all people affected by NSEERS from immigration consequences unless DHS can prove that such protection is adverse to the public interest. The NSEERS program has brought more than a decade of fear and damage—the Department’s own Inspector General, civil rights and immigration advocates, and the private bar have all recommended that the NSEERS program be terminated.
Published: Friday, April 20, 2012, 8:26 AM Updated: Wednesday, April 25, 2012, 1:45 AM By Star-Ledger Guest Columnist Getty ImagesDespite the uproar by politicians, most New Jersey voters believe the NYPD was doing "what is necessary to combat terrorism" when officers documented the activity of Muslim residents in the Garden State, a new poll has found. By Engy Abdelkader In 2002, our federal government implemented the National Security Entry-Exit Registration System, which required males 17 and older to register with U.S. immigration authorities. The requirement applied only to natives of predominantly Muslim countries. After reporting to registration, many of the men and boys never returned home. Rather, they were detained and deported, often without any notice to remaining family members in the United States, who were left wondering about their whereabouts. In response, I organized a human rights monitoring campaign outside of the Immigration and Naturalization Service offices in Manhattan. About 90 Americans volunteered to work three-hour shifts beginning as early as 5 a.m. and ending as late as midnight. Donning bright yellow shirts with the words "Human Rights Monitor," the volunteers tracked the compliant men who entered and exited the building. In the event someone did not leave, we contacted their family and provided legal and other resources. One of the things that struck me about the volunteers is that they were, for the most part, not Muslim. In other words, they were not members of the very religious, racial and ethnic groups singled out by NSEERS, which has since been terminated. As an American and Muslim, that resonated positively with me. And I have carried that experience forward. So I was disappointed to read recently that 70 percent of surveyed New Jerseyans approved of the New York City Police Department’s profiling of the American-Muslim, Arab-American and South Asian communities. Over six months, the Associated Press has cataloged widespread warrantless surveillance of average, law-abiding American Muslims without any indication of criminal wrongdoing and in violation of the First and Fourth Amendments. The NYPD has monitored Muslims’ daily life in bookstores, cafes, bars and nightclubs; gathered intelligence on cab drivers and food cart vendors hailing from particular countries and regions; photographed restaurants and grocery stores frequented by Muslims; built databases showing where Muslims shopped, got their hair cut and prayed; and used university records to identify and spy on students. Studies dating to the 1990s have shown that police officers who engage in profiling were less likely to find contraband in searches of their targets than they were in their searches of whites. In other words, profiling does not work. In June 2003, the U.S. Department of Justice issued a policy guidance regarding racial and ethnic profiling by federal law enforcement agencies stating: "Racial profiling in law enforcement is not merely wrong, but also ineffective. The DOJ orders federal agencies not to use race or ethnicity, alone or in conjunction with other factors, as an indicator of suspicion in routine law enforcement activities. While law enforcement use of religious profiling became more visible after 9/11, the DOJ guidance remains woefully silent on the subject. Indeed, it should be amended to reflect that the effects of religious profiling are equally as pernicious and ineffective as its racial and ethnic twins. Existing research highlights this best: Terrorists who claim to be inspired by religion are not likely to be found at mosques, nor do they exhibit signs of devout religiosity. Further, a highly respected social scientist’s review of 500 cases found evidence that "a well-established religious identity actually protects against violent radicalization." Since the DOJ guidance regulates only federal agencies, Congress should finally pass the End Racial Profiling Act, which prohibits law enforcement agencies from engaging in religious, ethnic and racial profiling. We need to protect our homeland from those who would harm us, but we can only do that by using lawful policies and tactics that work and preserve who we strive to be. I hope New Jerseyans can see that, just as those 90 human rights volunteers did. Engy Abdelkader is a legal fellow with the Institute for Social Policy and Understanding, a think tank based in Washington. http://blog.nj.com/njv_guest_blog/2012/04/profiling_as_in_nypd_muslim_pr.html
The name of Trayvon Martin was invoked early and often at a Capitol Hill hearing on federal anti-profiling laws Tuesday as supporters hope the furor over the shooting of Florida teenage will prompt Congress take up a legislation that has languished since 2001. “The senseless death of this innocent young man should be a wake up call,” said Sen. Dick Durbin of Illinois, a co-sponsor of legislation which would expand current federal law enforcement guidelines against profiling and mandate training on racial profiling at all federal law enforcement agencies. “He was profiled, followed, chased, and murdered,” said Federica Wilson, the cowboy hat-wearing congresswoman from Miami where Trayvon lived with his father. “This case has captured international attention and will go down in history as a textbook example of racial profiling.” More than 225 organizations submitted testimony for the hearing which included testimony by five Congressmen, civil liberties advocates, and two police officials. Five senators attended, including Lindsey Graham, Republican of South Carolina. Most of the speakers favored the legislation, sponsored by Maryland Democrat Ben Cardin, which would also forbid law enforcement officers from using race, ethnicity or religion as a factor in routine policing decisions. The profiling issue exploded into national consciousness earlier this year with intense media coverage of the story of the boy who came home from a convenience store with a snack for his brother only be shot dead by a volunteer neighborhood security guard. Last week, Florida investigators concluded that George Zimmerman had “profiled” Martin as he passed through a residential neighborhood in Sanford, Florida on February 26, resulting in an altercation in which Zimmerman shot Martin. Zimmerman has been charged with second-degree murder. The standing room-only crowd in the Dirksen Senate Office Building demonstrated how the social media campaign to demanding “Justice for Trayvon” had revived the profiling issue in Washington. The last time Congress held hearings on anti-profiling legislation was the summer of 2001, when revelations about the profiling practices of the New Jersey and Maryland state troopers had prompted a broad-based sentiment that using race and ethnicity to make traffic stops was fundamentally wrong and unfair. Profiling is “wrong and we will end it in America,” said President George W. Bush in Feb. 2001. Then came September 11. Profiling gained legitimacy as a national security tool. The Bush administration explicitly used racial profiling to contact non-citizens from Muslim countries under a program the National Security Entry-Exit Registration System (NSEERS) set up by Kris Kobach, then an attorney in the Bush Justice Department, now an immigration adviser to Mitt Romney. More than 82,000 people from 25 countries, (24 of them predominantly Muslim) were contacted, fingerprinted and interrogated. More than 12,000 were deported. The Bush Justice Department did issue a ban on racial profiling in 2003 but the DOJ guidelines allowed the use of religion and national origin as a law enforcement criteria. After the failure of Bush and Congress to enact comprehensive immigration reform in 2007, profling Mexicans and Central Americans became more common. With the federal government unable to control the flow of people into the country, Arizona, Alabama, and Georgia passed laws requiring police to check status of anyone for whom there is a “reasonable suspicion” of being undocumented. “There is no way to enforce the laws ‘show me your papers’ provisions without engaging in stereotypes based on race and ethnicity,” Anthony Romero of the ACLU, told the hearing Yet as profiling has become entrenched in drug enforcement, counterterrorism, and immigration control, said criminologist David Harris, research shows it is an ineffective law enforcement tool. “In many contexts, in many types of police agencies, the results all fall in the same direction: when racial or ethnic profiling is used, police are less likely, not more likely, to catch bad guys,” Harris said. Ron Davis, police chief in East Palo Alto, California, said his experience as as a cop on the streets confirmed that finding. Admitting that he himself had engaged in profiling, he called profiling “an ineffective tactic that wastes scares law enforcement resources and it harms our relations with communities whose cooperation we need. ” Davis said passage of S. 1670 would help police nationwide. “Without the legislation and updated Department of Justice guidance we will continue business as usual and only respond to this issue when it surfaces through high-profile tragedies such as Oscar Grant case in Oakland California and the Trayvon Martin case in Sanford Florida, ” he said. But the remarks of Frank Gale, a 23 year veteran of the Denver police force and the vice president of the Fraternal Order of Police, illustrated one of the biggest obstacles facing supporters of a profiling ban: police unions. Calling the bill “highly offensive,” Gale voiced the FOP’s “strong opposition” to S. 1670. The measure, he said, “provides a ‘solution’ to a problem that doe not exist, unless one believes that the problem to be solved is that our nation’s law enforcement officers are racist.” “We can and must restore the bonds of trust between law enforcement and minorities,” Gale said but argued a profiling ban would only generate more mistrust “because it is written with the presumption that racist tactics are common tool of our nation’s police departments.” The clashing views of Davis and Gale, two veteran African-American cops, “reflects the complexity of the issue,” Davis told me. For Davis, the profiling ban is simply the implementation of best practices while for Gale it is the institutionalization of second-guessing officers on the street who have to make difficult and dangerous decisions. “We don’t have to be afraid of being held accountable,” Davis said. Yet the Obama administration seems reluctant to act. Two years ago Attorney General Eric Holder told profiling critics he would review the 2003 DOJ guidelines, and reconsider the use of religion and national origin in national security and immigration enforcement. Holder has yet to act. Republican support for legislation supported by Muslim-Americans and opposed by police unions seems unlikely, especially in an election year. Lindsey Graham, the only Republican in attendance, voiced general support for the bill while expressing the belief that profiling Muslims might still be necessary in national security investigations. He said he hoped for “something more bipartisan.” (Cardin’s bill currently has 12 co-sponsors, all Democrats. A companion House bill has 52 co-sponsors, all Democrats.) A true end to profiling will require cultural, as well as political, change. The resonance of the Trayvon Martin story is a sign of cultural change that enhances the legislation’s prospects. But these things can take a long time in Washington. The murders of Matthew Shepard, a gay teenager in Wyoming, and James Byrd, a black man in Texas, in 1998 galvanized a movement to establish a federal hate crime law. But the Sheppard-Byrd Hate Crimes Prevention Act wasn’t enacted until President Obama signed it in 2009. The time may come for Trayvon’s Law but it probably won’t be this year. Jefferson Morley is a staff writer for Salon in Washington and author of the forthcoming book, Snow-Storm in August: Washington City, Francis Scott Key, and the Forgotten Race Riot of 1835 (Nan Talese/Doubleday).More Jefferson Morley
"I feel safe," says Timisela, who moved into a Sunday school classroom on March 1, when he defied an order to return to his native Indonesia. His wife has since joined him. "All the members are so welcoming,” adds Timisela, who says he’s prepared to stay in the church until his case is solved.
When and if that happens is a question mark. In the eyes of Immigration and Customs Enforcement, Timisela is an "immigration fugitive" who was "ordered removed" from the U.S. in 2006 but failed to leave. He says he was unaware of that 2006 order. He’s now inside a church, and it’s unlikely that immigration officials would raid it."As a matter of policy," ICE spokesman Harold Ort says, ICE "does not conduct enforcement actions at sensitive locations, including places of worship, without prior approval from ICE headquarters or unless the action involves a national security matter, imminent risk of violence or physical harm, pursuit of a dangerous felon or the imminent destruction of evidence in an ongoing criminal case."
As Timisela waits it out, he relies on Pastor Seth Kaper-Dale, who opened the church as a sanctuary. Kaper-Dale has personally taken up Timisela’s cause along with roughly 80 other Indonesians in his community facing deportation. He sees his church on the front lines of the battle over immigration reform."We have seen, in recent years, states taking immigration matters into their own hands due to the federal failures to make sense of immigration policy," Kaper-Dale says. "I think our church actions are like those state actions."Kaper-Dale questions the Obama administration’s immigration policy in light of a memo issued last June directing the use of "prosecutorial discretion." It seeks to prioritize immigration enforcement, "to target criminal aliens and those who put public safely at risk, as well as those who threaten border security or the integrity of the immigration system," according to a statement from ICE’s office in Newark, New Jersey.Kaper-Dale says his community doesn’t fit that bill.Many Indonesians in his community, including Timisela, came to the U.S. on a tourist visa in the late 1990s. They left the predominantly Muslim country because, at that time, Christians were being persecuted. After arriving in the U.S., they had a year to apply for asylum, but many say they weren’t aware of that. Their visas expired, and they lived here illegally.And they came forward after the September 11 terrorist attacks because of a program called the National Security Entry-Exit Registration System, or NSEERS, which was discontinued last year.Under it, foreign visitors, mostly from predominantly Muslim countries, were told to register with the government. Because Indonesia was on the list, the men came forward. Some, like Timisela, believed they were on a path to legalization.That didn't happen. Instead, they put themselves on the radar of immigration enforcement.
Kaper-Dale says he got involved after raids were carried out and deportation orders followed. Eventually, he and ICE worked out an agreement to allow undocumented Indonesians with no criminal record to live and work in the U.S. if they checked in regularly."To say now that they are a deportation priority, " Kaper-Dale says, "is for ICE to betray the Indonesian community and their American citizen advocates.”But that's not the way ICE sees it. Immigration officials say it was made clear that the agreement wasn't an "amnesty-type program" and that it was done to give people a final chance to reopen their immigration cases. They say ICE has extended stays and continues to do that in some cases, with factors like strong family and community ties taken into consideration.
Kaper-Dale says he's thankful that nearly half of the roughly 80 people facing deportation have been given stays of "somewhere between five and 12 months." But he says he’s not satisfied, adding that "there is nobody in our group who should be a deport priority for the U.S. government."But immigration officials say they consider immigration fugitives an enforcement priority. And they put Saul Timisela in that category.On a recent night at the church where he now lives, Timisela met with Kaper-Dale and about a dozen other Indonesians. More than half of them had electronic ankle monitors strapped to their left leg.Kaper-Dale reviewed their status and went over checklists, one of which had a reminder to write to lawmakers. Kaper-Dale has been fighting to get a law passed in Congress that would give the Indonesians a second chance to apply for citizenship if certain requirements are met. But there's little appetite on Capitol Hill to take it on. Since that meeting, Kaper-Dale says, one of the men has been deported.With deadlines approaching for other members of his community to leave the country, Kaper-Dale says "we will keep sanctuary as a real possibility" if warranted.In the meantime, Timisela holds on to his faith. "I just keep praying," he says. "I just keep praying."
Mar 20, 2012
We Applaud the Department of Homeland Security (DHS) Office of Inspector General’s (OIG) recommendation to fully terminate controversial National Security Entry Exit Registration System (NSEERS)
By Aadika Singh and Shoba Sivaprasad Wadhia
The NSEERS program, which begun as a response to the terrorist attacks of September 11th, required certain non-immigrants to register at ports of entry and local immigration offices. Registrants were fingerprinted, photographed, and often subjected to lengthy questioning. The most controversial component of NSEERS which required males from mainly Muslim-majority countries to register, was a clear example of racial profiling, and was found both by the 9/11 Commission and DHS itself, to be ineffective and inconvenient.
In its report entitled “Information Sharing on Foreign Nationals: Border Security,”, the OIG determined that the NSEERS database is unreliable, that the program remains excessively onerous for registrants who continue to be subjected to lengthy questioning and multiple data checks, and that it makes for an inefficient use of government resources and detracts DHS agents from conducting more targeted homeland security efforts. DHS has estimated that the program, at its height, cost American taxpayers more than $10 million annually.
Until April 2011, the NSEERS program required non-immigrants from predominantly Arab and Muslim countries to register under the NSEERS program each time they arrived in or departed from the United States, or had to obtain a waiver of these requirements. In April 2011, DHS took an important step by publishing a Notice in the Federal Register delisting the countries whose nationals were required to register under the NSEERS program. Unfortunately, the April Notice did not address the many individuals and families who continue to be impacted by the NSEERS program because they did not register when the Federal Register told them to do so, or because an immigration violation was discovered following their compliance with the NSEERS program. Ten years later, the reach of NSEERS touches men who are married to United States citizen spouses or the fathers of United States citizen children among others.
The OIG has notably concluded that there is “no longer a value in the NSEERS program” and noted concerns that the program remains in existence, providing “The NSEERS program for special registration of certain categories of aliens from predominantly Arab and Muslim countries, and the database that supports this program, is obsolete and should be terminated. … Leaving the regulatory structure of the NSEERS program in place provides no discernable public benefit. Deficiencies we identified in the NSEERS program were not related to the composition of the list of subject nationalities, but rather to the insufficient value of the NSEERS data.”
DHS sent an important message to communities and stakeholders in April 2011 when it conceded that NSEERS was an ill-conceived program and removed the countries whose nationals and citizens were stung by the program. However, since the inception of NSEERS, our position has been that the program should remove the penalties for individuals affected by the NSEERS program in the absence of egregious adverse factors, and remove the regulatory framework in its entirety.
November 7, 2011 PM-602-0050 Policy Memorandum SUBJECT: Revised Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Removable Aliens
Purpose This Policy Memorandum (PM) establishes new USCIS guidelines for referring cases and issuing Notices to Appear (NTAs) in a manner that promotes the sound use of the resources of the Department of Homeland Security and the Department of Justice to enhance national security, public safety, and the integrity of the immigration system. This PM supersedes Policy Memorandum No. 110, Disposition of Cases Involving Removable Aliens, dated July 11, 2006.
Scope This PM applies to and is binding on all USCIS employees unless otherwise specifically provided in this PM.
Authority Immigration and Nationality Act (INA) sections 101(a)(43), 103(a), 239, 240 and 318; Title 8, Code of Federal Regulations (8 CFR) parts/sections 2.1, 103, 204, 207.9, 208, 216.3(a), 216.6(a)(5), 236.14(c), and 239; Adjudicator’s Field Manual Chapter 10.11(a).
Background U.S. Citizenship and Immigration Services (USCIS) has authority, under the immigration laws, see, e.g., INA §§ 103(a), 239; 8 CFR §§ 2.1, 239.1, to issue Form I-862, Notice to Appear, to initiate removal proceedings.1 U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP) also have authority to issue NTAs. Accordingly, USCIS must ensure that its issuance of NTAs fits within and supports the Government’s overall removal priorities, while also ensuring that its NTA policies promote national security and the integrity of the nation’s immigration system. To those ends, this PM identifies the circumstances under which USCIS will issue an NTA, or will refer the case to ICE for NTA issuance, in order to effectively handle cases that involve public safety threats, criminals, and aliens engaged in fraud. 1 Delegation by the Secretary of the Department of Homeland Security to the Bureau of Citizenship and Immigration Services, Delegation Number 0150.1; Paragraph 2(N). However, international District Directors and officers are not authorized to issue NTAs.
AILA InfoNet Doc. No. 11110830. (Posted 11/8/11) Page 2 Policy I. National Security Cases This PM does not affect the handling of cases involving national security concerns.2 Guidance from the Fraud Detection and National Security Directorate (FDNS)3 will continue to govern the definition of these cases and the procedures for resolution and NTA issuance. II. NTA Issuance Required by Statute or Regulation USCIS will issue an NTA in the following circumstances:4 A. Termination of Conditional Permanent Resident Status and Denials of Form I-751, Petition to Remove the Conditions of Residence (8 CFR 216.3, 216.4, 216.5)5 B. Denials of Form I-829, Petition by Entrepreneur to Remove Conditions (8 CFR 216.6) C. Termination of refugee status by the District Director (8 CFR 207.9) D. Denials of NACARA 202 and HRIFA adjustments 1. NACARA 202 adjustment denials (8 CFR 245.13(m)); 2. HRIFA adjustment denials (8 CFR 245.15(r)(2)(i)). E. Asylum6, NACARA 203, and Credible Fear cases:7 1. Asylum referrals (8 CFR 208.14(c)(1)); 2. Termination of asylum or termination of withholding of removal or deportation (8 CFR 208.24(e));8 3. Positive credible fear findings (8 CFR 208.30(f)); 4. NACARA 203 cases where suspension of deportation or cancellation of removal is not granted, and the applicant does not have asylum status, or lawful immigrant or non-immigrant status (8 CFR 240.70(d)).
This PM does not apply to, or change, NTA or notification procedures for Temporary Protected Status cases.9 Further, Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, processed under the Violence Against Women Act (VAWA), should continue to 2 National Security Cases include cases involving Terrorist Related Grounds of Inadmissibility (TRIG) pursuant to sections 212(a)(3)(B) and 212(a)(3)(F) of the INA. 3 See, e.g., Policy for Vetting and Adjudicating Cases with National Security Concerns (April 11, 2008).
4 If any Form I-751 or I-829 cases are also Egregious Public Safety cases, they will be referred to ICE in accordance with Section IV.A.1 of this PM.
5 See the October 9, 2009 internal memo, Adjudication of Form I-751, Petition to Remove Conditions on Residence Where the CPR Has a Final Order of Removal, Is in Removal Proceedings, or Has Filed an Unexcused Untimely Petition or Multiple Petitions. See also the April 3, 2009 memo, I-751 Filed Prior to Termination of Marriage.
6 USCIS may issue an NTA when an asylum applicant withdraws his or her asylum application.
7 This memo does not apply to the Asylum Division’s issuance of Form I-863, Notice of Referral to Immigration Judge, to certain stowaways, crewmembers, and VWP individuals who are requesting asylum or withholding of removal; reasonable fear screenings and negative credible fear screenings. 8 See also section 208(c)(3) of the INA describing removal when asylum is terminated. 9 See the September 12, 2003 internal memo, Service Center Issuance of Notice to Appear (Form I-862).
AILA InfoNet Doc. No. 11110830. (Posted 11/8/11) Page 3 be processed under existing protocols. If the VAWA applicant’s Form I-485 is denied, this memorandum is applicable in terms of NTA issuance.10 III. Fraud Cases with a Statement of Findings Substantiating Fraud To protect the integrity of the immigration system and address fraud, USCIS will issue NTAs when a Statement of Findings (SOF) substantiating fraud is part of the record.11 An NTA will be issued upon final adjudicative action on the petition and/or application or other appropriate eligibility determination.12 NTAs will be issued even if the petition and/or application is denied for a ground other than fraud, such as lack of prosecution or abandonment, is terminated based on a withdrawal by the petitioner/applicant, or where an approval is revoked, so long as an SOF substantiating fraud is in the record. The NTA should include the charge of fraud or misrepresentation, if possible. The appropriate charge(s) will be determined on a case-by-case basis. Consultation with local USCIS counsel to determine the appropriate charge(s) is recommended.
IV. Cases to be Referred to ICE for a Decision on NTA Issuance A. Criminal Cases: Criminal aliens are a top immigration enforcement priority for the government. The following guidance recognizes the prioritization and requires USCIS to refer criminals to ICE for action or issue an NTA in accordance with this PM. 1. Egregious Public Safety (EPS) Cases USCIS will refer all EPS cases, including cases with pending N-400s, to ICE prior to adjudicating the case even if USCIS can deny the petition and/or application on its merits. An EPS case is defined by USCIS and ICE as a case where information indicates the alien is under investigation for, has been arrested for (without disposition), or has been convicted of, any of the following: a. Murder, rape, or sexual abuse of a minor as defined in section 101(a)(43)(A) of the INA. b. Illicit trafficking in firearms or destructive devices as defined in section 101(a)(43)(C) of the INA. c. Offenses relating to explosive materials or firearms as defined in section 101(a)(43)(E) of the INA. 10 When making determinations, employees must keep in mind USCIS’s obligations under 8 USC § 1367, which prohibits the release of any information, outside of DHS, relating to aliens who are seeking or have been approved for immigration benefit(s) under the provisions for battered spouses, children, and parents in the Violence Against Women Act. 11 Alternatively, ICE will determine whether to issue the NTA if a criminal investigation is conducted, fraud is found, and the investigation results in criminal prosecution. 12 This includes, but is not limited to, aliens that were granted asylum status by USCIS, adjusted to Lawful Permanent Resident status, presented fraud indicators, were subject to the Post Adjustment Eligibility Review (PAER) process in an Asylum Office, and met the PAER criteria for NTA issuance.
AILA InfoNet Doc. No. 11110830. (Posted 11/8/11) Page 4 d. Crimes of violence for which the term of imprisonment imposed, or where the penalty for a pending case, is at least one year as defined in section 101(a)(43)(F) of the INA. e. An offense relating to the demand for, or receipt of, ransom as defined in section 101(a)(43)(H) of the INA. f. An offense relating to child pornography as defined in section 101(a)(43)(I) of the INA. g. An offense relating to peonage, slavery, involuntary servitude, and trafficking in persons as defined in section 101(a)(43)(K)(iii) of the INA. h. An offense relating to alien smuggling as described in section 101(a)(43)(N) of the INA i. Human Rights Violators, known or suspected street gang members, or Interpol hits. j. Re-entry after an order of exclusion, deportation or removal subsequent to conviction for a felony where a Form I-212, Application for Permission to Reapply for Admission into the U.S. after Deportation or Removal, has not been approved. All EPS cases must be referred to ICE using the procedures outlined below. The case will be referred as soon as it is identified. ICE will have an opportunity to decide if, when, and how to issue an NTA and/or detain the alien. USCIS will not issue an NTA in these cases if ICE declines to issue an NTA. If some other basis unrelated to the EPS concern becomes apparent during the course of adjudication, an NTA may be issued in accordance with this memo. Referral Process This referral process is utilized in order to give ICE the opportunity to determine the appropriate course of action before USCIS adjudicates the case. A decision to issue an NTA may directly affect the processing of the pending petition and/or application. Upon issuing the Referral to Immigration and Customs Enforcement (RTI), USCIS will suspend adjudication for 60 days, or until ICE provides notification of its action on the case, whichever is earlier. In response to the RTI – 1. ICE may issue an NTA. ICE’s issuance of an NTA allows USCIS to proceed with adjudication (unless jurisdiction transfers to EOIR or the pending application is an N-400), taking into account the basis for the NTA. 2. If ICE does not issue an NTA or otherwise provide notification of its action on the case within 60 days of the RTI, USCIS may resume its adjudication of the case, taking into account the referral grounds.
AILA InfoNet Doc. No. 11110830. (Posted 11/8/11) Page 5 a. If the case is approvable, USCIS will consult with ICE prior to adjudication. b. Once adjudicated, regardless of the decision, USCIS will notify ICE of the result by sending a copy of the original RTI to ICE with a cover memorandum advising of the outcome of the case. EPS cases referred to ICE prior to adjudication should be called up and reviewed no later than 60 days after referral. Normally, the case should be adjudicated by USCIS. However, USCIS retains discretion to place the case on hold for more than 60 days if ICE requests additional time to conduct an investigation.13 Office-Specific Processes 1. Cases to be adjudicated by Service Centers and the National Benefits Center. Adjudication will be suspended and the case will immediately be sent to the appropriate Service Center Background Check Unit (BCU). The BCU will refer the case to the ICE Benefit Fraud Unit (BFU) via an RTI. A hard copy of the RTI will be placed in the A-file and/or receipt file. The BCU will retain the file unless ICE requests it or the 60 days expire. 2. Cases to be adjudicated by Field Offices. The Immigration Services Officer (ISO) will suspend adjudication and the case will immediately be referred to the local ICE Special Agent in Charge (SAC) via an RTI. A hard copy of the RTI will be placed in the A-file and/or receipt file. A copy of the RTI must also be sent to the ICE BFU. USCIS will retain the file unless ICE requests the file for their review. An RTI should include any relevant attachments that USCIS has at the time, such as a copy of the RAP sheet and a copy of the petition and/or application. 2. Non-Egregious Public Safety Criminal Cases If it appears that the alien is inadmissible or removable for a criminal offense not included on the EPS list, USCIS will complete the adjudication and then refer the case to ICE. This section applies to N-400 cases if the N-400 has been denied on good moral character (GMC) grounds based on the criminal offense.14 ICE will decide if, and how, it will institute removal proceedings and whether or not it will detain the alien. USCIS will not issue an NTA if ICE declines to issue an NTA. 13 Pursuant to 8 CFR 274a.13(d), USCIS must complete processing of an Employment Authorization Document (EAD) within 90 days or issue an interim EAD card valid up to 240 days. Officers should be mindful of this regulatory timeframe when cases with a pending Form I-765, Application for Employment Authorization, are referred to ICE. 14 See Section V of this memo addressing N-400 cases.
AILA InfoNet Doc. No. 11110830. (Posted 11/8/11) Page 6 If some other basis unrelated to the criminal offense becomes apparent upon return of the case to USCIS, an NTA may be issued in accordance with this memo. Referral Process The referral process is used to allow ICE to make a determination whether to issue an NTA, based on the totality of circumstances and its priorities. ICE will determine the appropriate grounds for removal if an NTA is issued. Once adjudication is complete, USCIS will send an RTI to ICE. USCIS will concurrently transmit a copy of the RTI to ICE Headquarters (HQ) Enforcement and Removal Operations (ERO) Criminal Alien Division for statistical monitoring purposes. If there is any confusion or uncertainty about classifying a case as egregious versus non-egregious, the USCIS ISO should refer the matter as an EPS case using the process described above. The accompanying A-file will be referred to ICE with the RTI, if the file is in the possession of the referring USCIS office or center. If the file is not at the referring USCIS office or center, the RTI should include any relevant attachments that USCIS has, such as a copy of the RAP sheet and a copy of the petition and/or application. Where USCIS obtained certified conviction records through normal processing of the case, USCIS will include the records with the RTI, but it will not hold the RTI on a completed case solely to obtain disposition records. Instead ICE will decide whether, and how, it will obtain such records as part of its decision to issue an NTA. Office-Specific Processes 1. Cases adjudicated by Service Centers and the National Benefits Center. Once adjudication is completed, if the alien is removable on a criminal charge, regardless of the reason for the denial, the file will be referred to the BCU. The BCU will refer the case, along with the A-file and/or receipt file, to the appropriate ERO Field Office Director (FOD) via an RTI. 2. Cases adjudicated by Field Offices. Once adjudication is completed, if the alien is removable on a criminal charge, regardless of the reason for the denial, USCIS will prepare an RTI and refer the case, along with the A-file and/or receipt file, to the local ERO FOD. B. National Security Entry Exit Registration System (NSEERS) Violator Cases USCIS will refer all cases in which an application is denied based on an NSEERS violation to ICE for possible NTA issuance.
AILA InfoNet Doc. No. 11110830. (Posted 11/8/11) Page 7 V. Cases Involving Form N-400, Application for Naturalization The following guidance applies to the issuance of NTAs in cases in which applicants for naturalization are removable. There are two primary situations in which NTAs may be issued in connection with a filed Form N-400. If the N-400 case involves fraud (documented in the SOF) the procedures found in this section must be followed, rather than the procedures found in Section III (Fraud Cases with a Statement of Findings Substantiating Fraud). However, the below guidance does not apply to EPS cases. EPS cases must be referred in accordance with Section IV.A.1 (Egregious Public Safety Cases) of this memo. Additionally, the below guidance does not apply to non-EPS criminal cases when the N-400 can be denied on GMC grounds based on the criminal act. These cases must be denied and referred in accordance with Section IV.A.2 (Non-Egregious Public Safety Criminal Cases). A. The first situation occurs when the applicant may be eligible to naturalize but is also deportable under section 237 of the INA. Examples include applicants convicted of aggravated felonies prior to November 29, 1990, or applicants convicted of deportable offenses after obtaining Lawful Permanent Resident (LPR) status that do not fall within the GMC period. The ISO should: 1. Make a written recommendation on the issuance of an NTA through a review of the totality of the circumstances to include factors such as: severity of crime, time since crime committed, other criminal conduct, reformation, immigration history including method of entry, length of presence in the U.S., and prior immigration violations, and contributions to society to include the pursuit of education and military service.15 2. Once the ISO has made a recommendation on whether or not to issue an NTA, the case should be forwarded to the N-400 NTA Review Panel (Review Panel), along with the written recommendation. A Review Panel must be formed in each Field Office and include a local Supervisory Immigration Services Officer (SISO), a local USCIS Office of Chief Counsel attorney, and a district representative. An attorney from ICE’s local Office of Chief Counsel will be invited to participate and will have an advisory role on the panel. The Review Panel will make the final determination on NTA issuance. If consensus cannot be reached by the Review Panel, the case will be elevated to the District Director, through the district representative, for a final decision. 3. If the Review Panel decides to issue an NTA, place the N-400 on hold until removal proceedings have concluded. Once proceedings have concluded, or if the Review Panel declines to issue an NTA, adjudicate the case appropriately. 15 Additional factors to be taken under consideration can be found in the June 17, 2011 ICE memo, Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens.
AILA InfoNet Doc. No. 11110830. (Posted 11/8/11) Page 8 B. The second situation occurs when it is determined that the applicant was inadmissible at the time of adjustment or admission to the United States, thus deportable under section 237 of the INA and not eligible for naturalization under section 318 of the INA.16 The ISO should: 1. Make a written recommendation on the issuance of an NTA through a review of the totality of the circumstances to include factors such as: willfulness of actions, fraud factors, length of LPR status, criminal history, and officer error at time of adjustment. 2. Once the ISO has made a recommendation on the issuance of the NTA, the case should be forwarded to the Review Panel (see Section V.A.2), along with the written recommendation. The Review Panel will make the final determination on NTA issuance. If consensus cannot be reached by the Review Panel, the case will be elevated to the District Director, through the district representative, for a final decision. 3. If the Review Panel decides to issue an NTA, place the N-400 on hold until removal proceedings have concluded. Once removal proceedings have concluded, adjudicate the case appropriately. If the Review Panel declines to issue an NTA, deny the case under section 318 of the INA. VI. Other Cases A. An alien may request NTA issuance to renew an application for adjustment or in certain cases with a denied N-400. The request must be made in writing.17 B. An asylum applicant issued an NTA may request NTA issuance for family members not included on the asylum application as dependents for family unification purposes. The request must be made in writing.18 VII. Exceptions Exceptions to the guidance in this PM require concurrence from Regional or Center Directors, who will consult with ICE before issuing an NTA. 16 In the Third Circuit only (Pennsylvania, New Jersey, Delaware, and the U.S. Virgin Islands), based on the holding in Garcia v. Att’y Gen., 553 F.3d 724 (3d Cir. 2009), if the alien has been an LPR for at least five years, the alien cannot be placed in removal proceedings for fraud or willful misrepresentation of a material fact at time of adjustment, if USCIS could have learned of the fraud or misrepresentation through reasonable diligence before the five year rescission period expired. Please consult with USCIS counsel if there are questions regarding the applicability of this precedent. 17 USCIS retains discretion to deny a request. USCIS should consider ICE actions and determinations when making an NTA issuance decision under this section. 18 USCIS retains discretion to deny a request. AILA InfoNet Doc. No. 11110830. (Posted 11/8/11) PM-602-0050: Revised Guidance for the Referral of Cases and Issuance of NTAs in Cases
Involving Inadmissible and Removable Aliens Page 9 VIII. Coordination with ICE According to the June 2011 ICE memo regarding the exercise of prosecutorial discretion consistent with priorities,19 USCIS will receive notice before an ICE attorney exercises prosecutorial discretion and dismisses, suspends, or closes a case. The local N-400 NTA Review Panel will work with ICE to come to a resolution if USCIS does not agree with ICE’s use of prosecutorial discretion in a particular case. If concurrence cannot be reached, the case should be elevated to the USCIS Office of Chief Counsel in headquarters.
Implementation Each field office must form an N-400 NTA Review Panel and create a process to complete RTIs and refer EPS and non-EPS criminal cases to ICE. A written list enumerating the members of the Review Panel and a document outlining the process of referral must be sent to the appropriate district office within 30 days of the issuance of this memorandum.
This PM is intended solely for the guidance of USCIS personnel in the performance of their official duties. It is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law, or by any individual or other party in removal proceedings, in litigation with the United States, or in any other form or manner.
Contact Information: Questions or suggestions regarding this PM should be addressed through appropriate channels to the Field Operations Directorate, Service Center Operations Directorate, or the Refugee, Asylum, and International Operations Directorate. 19 Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens, signed June 17, 2011. AILA InfoNet Doc. No. 11110830. (Posted 11/8/11)
AILA Calls USCIS Guidance a Positive Step Cite as "AILA InfoNet Doc. No. 11110809 (posted Nov. 8, 2011)" FOR IMMEDIATE RELEASE:Tuesday, November 8, 2011CONTACTS:Jenny Werwa / Amanda Walkins202-507-7628 email@example.com@aila.org
WASHINGTON, DC – The American Immigration Lawyers Association (AILA) commends U. S. Citizenship and Immigrations Services (USCIS) for today’s field guidance that moves the agency back in the direction of the original intent behind its formation--it is the service arm of Department of Homeland Security (DHS), charged with fairly adjudicating immigration petitions and applications.
“This guidance lets officers focus solely on the job at hand, referring most enforcement actions to Immigration and Customs Enforcement (ICE), the agency formed for that purpose,” said AILA President Eleanor Pelta. “The memo still outlines situations in which USCIS officers should institute removal proceedings. However, it realigns the agency’s goals to better reflect its original and intended purpose.”
“AILA also is encouraged by the structures that USCIS is putting into place with respect to naturalization cases,” continued Pelta. “Citizenship is precious, and the steps outlined in the guidance should help to avoid some of the miscarriages of justice that we sometimes see when long-time legal residents seek citizenship only to find themselves instead thrown out of the country over a technicality.”
AILA congratulates USCIS on this act of reasoned government, but is dismayed by the guidance’s perpetuation of the National Security Entry-Exit Registration System (NSEERS) program. “DHS eliminated the ongoing application of this program some time ago, but has never corrected the injustices created by its complex and confusing rules. Rather than saying that it will refer for possible removal people who are not registered under this largely-abandoned program, USCIS should simply cease to apply these rules,” concluded Pelta.
###The American Immigration Lawyers Association is the national association of immigration lawyers established to promote justice, advocate for fair and reasonable immigration law and policy, advance the quality of immigration and nationality law and practice, and enhance the professional development of its members.
November 15, 2011 Hon. Margo Schlanger Hon. Kelly Ryan Officer, Office for Civil Rights and Civil Liberties Acting Deputy Assistant Secretary for Policy U.S. Department of Homeland Security U.S. Department of Homeland Security Washington, DC 20528 Washington, DC 20528
Dear Officer Schlanger and Deputy Ryan:
The undersigned organizations are writing to request a meeting with you and your delegates to discuss the steps your agency has taken to address the residual populations affected by the National Security Entry-Exit System (NSEERS) program since our meeting on June 2, 2011. At that meeting, we highlighted the importance of implementing a specific policy to remove the residual penalties and procedures associated with NSEERS, and asked for the removal of the regulatory framework of NSEERS altogether.
We are particularly concerned by a recent Policy Memorandum (PM) from the United States Citizenship and Immigration Services (USCIS), "Revised Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Removable Aliens" (PM-602-0050 (November 7, 2011)), and the direction therein to "refer all cases in which an application is denied based on an NSEERS violation to ICE for possible NTA issuance." http://www.uscis.gov/USCIS/Laws/Memoranda/Static_Files_Memoranda/NTA%20PM%20(Approved%20as%20final%2011-7-11).pdf Rather than taking steps to eliminate penalties associated with alleged NSEERS noncompliance, and to conserve enforcement resources in a manner consistent with the new policies, the PM suggests that USCIS will continue to deny benefits cases based on alleged NSEERS noncompliance, and moreover, will defer to, and in turn permit, ICE to issue NTAs in NSEERS cases. We are troubled by the inclusion of this language in the PM and believe it and any process that continues the NSEERS program and sanctions for noncompliance should be eliminated. Attached is the correspondence associated with the June 2 meeting. Also attached is a press release from the American Immigration Lawyers Association expressing its concern about the PM's language on NSEERS. http://www.aila.org/content/default.aspx?docid=37595
Thank you for your attention. We look forward to discussing this issue further with your offices. If you have any questions, please contact Shoba Sivaprasad Wadhia at firstname.lastname@example.org. American-Arab Anti-Discrimination Committee
American Immigration Lawyers Association National Immigration Forum Rights Working Group South Asian Americans Leading Together Shoba Sivaprasad Wadhia, Pennsylvania State Law’s Center for Immigrants’ Rights* *affiliation listed for informational purposes only cc: Stephen H. Legomsky, Chief Counsel, United States Citizenship and Immigration Services, U.S. Department of Homeland Security
Press Conference at 11am on the church steps. The church that has been working tirelessly to support Indonesian Refugees who came to this country on tourist visas during a time of incredible violence against ethnic Chinese Christians made the decision, today, to offer SANCTUARY to one of the members of the central NJ Indonesian Christian community.
Saul Timisela is slated to be deported at 7am this morning. He was officially told of his deportation yesterday. Saul has reported to the church, rather than to ICE. Today we will cry out to God, and cry out to the President, asking that he stop deporting Indonesian Christian Refugees who are not criminals nor egregious immigration offenders (the stated priority populations for ICE removals).
On January 12th Saul tried to file an I-246, stay of removal, that highlighted various humanitarian factors that are part of the June 17th Prosecutorial Discretion Memo. Saul met many of the criteria stated as important in that memo. An officer encouraged him to strengthen the I-246 with more medial evidence about his liver disease, heart disease and hypertension—which may stem from his work of clearing debri from Ground Zero starting in September 2001. She asked him to come back on Feb. 15th
Saul collected the requested medical information prior to his next report date (Feb 15th) and his I-246, with the $155 processing fee, was received.
It was told to Saul at the January report date that ICE had set a departure for March 1, but the fact that the officer simultaneously requested better documents for making a decision suggested to Saul and to the church that the March 1 date would only happen if he didn’t get more solid information for his I-246 submission. Also, a recent update from ICE Headquarters about the various cases we’d inquired about did NOT include Saul as someone slated for deportation.
Yesterday, February 29th, Saul went to ICE for his next report, and they told him he was being deported the next day. They didn’t tell him if his new I-246 had been considered or denied. They didn’t seem to take seriously any of the medical evidence that he’d gotten for them in response to their request made in January.
Saul and his wife moved to this country in 1998 and 2000, respectively. The stories of persecution they endured in Indonesia are horrific. Saul reported for NSEERS in 2003 and his life, like the lives of all Indonesians, has been an immigration nightmare since that time. Saul’s wife, after seeing all asylum cases of her friends denied because of the time bar for filing, wisely did not open a case. She is waiting for HR 3590, the Indonesian Refugee Family Protection Act, a bill that has bi-partisan support.
The Reformed Church of Highland Park will offer Sanctuary to Saul and do our best to offer him the kind of steadfast love that we claim is at the heart of God.
A Christian undocumented immigrant from Indonesia facing deportation has been provided protection from a New Jersey church as his application for asylum remains in limbo and he fears persecution from Muslim extremists in his native homeland. Saul Timisela, 44, escaped religious persecution at home 14 years ago and was living in the shadow of the law in the Garden State alongside a few dozen of his Christian countrymen in a similar situation, while the church's pastor, the Rev. Seth Kaper-Dale, has been fighting for the government to give the Indonesians a chance to re-apply for their asylum applications on the grounds that they are refugees. Timisela was supposed to report to U.S. Immigration and Customs Enforcement (ICE) in Newark on Wednesday with documentation that, as he was reportedly told, was needed for furthering his Application for a Stay of Deportation or Removal, only to find out that he was to be deported the next day, Kaper-Dale told The Christian Post. Timisela's wife is currently living in hiding, as she never even filed for asylum, the pastor said. "We just thought that was cruel and unusual and so we offered him sanctuary," Kaper-Dale told The Christian Post Friday. Instead of showing up at the airport Thursday morning, the immigrant turned up at the Reformed Church of Highland Park in Highland Park, N.J., where he is currently staying under the care of the church community and its leader, who has been fighting tirelessly since 2009 to save the Indonesians from deportation. The undocumented group revealed themselves to the government after 2001, when the National Security Entry-Exit Registration System (NSEERS) initiative called for illegal immigrants from specific countries to register, following 9/11 terrorst attacks. "We are humbly and respectfully disagreeing with the government," Kaper-Dale said. "We are not trying to be flamboyant in any way. We are people who love government, who trust in laws; who believe that God uses law to bring order to society. We are not anarchists or anything like that. We just really feel that sometimes it's the role of the church to remind the government of a higher law."