On May 21, 2003, the New York State Advisory Committee to the US Commission on Civil Rights, held a fact-finding forum entitled “Civil Rights Issues and Post 9-11 Law Enforcement-Community Relations in New York” at New York University Law School. The topics covered included Racial Profiling by Law Enforcement Authorities, Border Crossing & Special Registration Issues; and Legal Perspective on Post-9-11 Civil Rights Issues. Below is the text of the remarks of Cyrus D. Mehta who testified during the “Border Crossing and Special Registration Issues” session:
I speak before you today in several capacities, all closely related to the issues concerning today’s forum. I am a private immigration practitioner who has represented and counseled several noncitizens who have been subject to Special Registration. In my capacity as Chair of the Committee on Immigration and Nationality Law of the Association of the Bar of the City of NewYork, we have responded to several governmental initiatives to enhance security since the tragedy on September 11, but which have also targeted certain immigrant communities because of religion or nationality. Finally, as First Vice Chair of the Board of Trustees of the American Immigration Law Foundation, I have been involved in policy issues concerning the discriminatory impact of these initiatives against certain non-citizens since September 11.
A little over 60 years ago, another group of people, Japanese Americans, were targeted solely because of their nationality, without regard to individualized guilt or suspicion. The internment of Japanese Americans after the attack on Pearl Harbor, even though endorsed by the United States Supreme Court, was later viewed as a national disgrace many decades later. A President apologized for the internment and Congress also made reparations.
Yet, today, several of the initiatives since 9/11, particularly the Call In Special Registration program, once again has targeted people, not just on the basis of their nationality, but also on their gender, without regard to individualized suspicion or guilt. Special Registration has come on the heels of other prior initiatives largely focused on noncitizens who come from countries with predominantly Muslim populations. But Special Registration was the last straw to break the camel’s back in alienating and isolating a large population of noncitizens who now feel threatened and unwelcome in a country where they have made their home, built their lives, their families, and their dreams!
It is still not clear whether Special Registration has enhanced our security and has led to the capture of terrorists who were about to launch attacks on US soil. While Kris Kobach from the DOJ has issued self-congratulatory statements in the press about the registration program being successful; no terrorists have been prosecuted criminally or paraded before TV cameras as a result of the mass registration of Muslims. While DOJ officials have said that the entry registration system has led to the apprehension of foreign criminals, it is unclear whether these people had garden variety criminal convictions, which anyway renders them inadmissible, or whether these people were entering with a motive to engage in terrorist activity in the US.
Against this lack of clarity on the so called success of the program, we have seen tens of thousands of people, all men and mainly Muslim, who have been targeted solely because of their nationality. Because they responded to the call to register, many are in deportation proceedings. Even those who were in legal status have felt humiliation in the act of registering, and many have faced further humiliation before an INS official.
The people most affected are male teenagers who may have come as little children with their parents, totally unable to control their ability to remain in the US legally or not. If deported, they would be separated from their mothers and sisters. Unlike adult males, who may be under the sponsorship of an employer and thus be able to stave off a deportation hearing, a teenager may not have the same opportunity.
Finally, registration, whether at the airport or through Call In, is not a one time event. This person will constantly be branded as a “registered alien” as he will need to report back to the INS on a periodic basis and exit the country only through certain designated ports of entry. Any failure to comply with all the requirement of this program (which also includes a duty to report a change of address) can lead to deportation, criminal penalties and future inadmissibility.
The American Immigration Law Foundation has published a report, in cooperation with AALDEF, on parallels between Japanese American internment and the targeting of non-citizens from Muslim countries after September 11. This paper is available on www.ailf.org
AILF most recently conducted a survey on experiences at Call-In Special Registration. In all, 302 people responded to the survey. However, 46 of these responses were rejected, leaving 266 valid responses.
Issues of confidentiality made it impossible to select a true random sample of people subject to Call-In Special Registration. First, the sample contains a disproportionate number of respondents who had legal representation, since many of the respondents heard about the survey through their attorneys. Secondly, the sample likely contains a disproportionate number of people who had difficulties at special registration, as people who have complaints may have more of an emotional incentive to respond to the survey.
However, the survey reflects what we have heard anecdotally from people and their legal representatives who were subject to registration. Essentially, the survey entitled “Inconsistency, Confusion and Chaos: Experiences with Call-In Special Registration
” reflects entirely what many on the ground have experienced.
Differential treatment with In status nonimmigrants - Some were treated courteously and others were asked intrusive questions and subject to rude officers. Many respondents indicated that they had to wait for long hours to be registered. For instance, our own experience in my firm indicated that simple cases could take 8 hours, and complicated cases over 12 to 15 hours. Many of those assigned to register people at INS lacked basic knowledge of immigration laws and procedures.
Late registrants – The responses to the survey reflect inconsistent treatment with late registrants. Some were registered, and others were put into removal proceedings and two of these were arrested and incarcerated in county jails. Also, I have seen needlessly harsh treatment with airport registrants who did not report back within 40 days. There is no need to arrest them or place them in proceedings.
Registrants with application for LPR – Their nonimmigrant visas had expired but they had filed an application for adjustment of status. Again, some were registered and allowed to continue to pursue the applications and others were placed in removal proceedings. I believe it is a waste of time and resources to put someone who has filed an adjustment application in removal proceedings. It makes no sense from an economic or security perspective to deport people who are on the path to permanent residency.
Dual citizenship – No clarity as to who is a dual citizen. Is someone born in a targeted country automatically a citizen of that country? INA definition is Section 101(a)(21) defines “national” as a “person owing permanent allegiance to a state.” INS has indicated that it will apply the citizenship retention laws of the alien’s place of birth or subsequently acquired citizenship. But determining citizenship retention laws of foreign countries can be a very daunting task. Some countries make it impossible to renounce one’s nationality or citizenship. The government’s position is difficult to reconcile with precedent decisions. See Matter of Ognibene
, 18 I&N Dec. 425 (R.C. 1983), which determined, that “the nationality claimed or established…at the time of the alien’s entry into the US must be regarded, for purposes of section 214 as his sole operative nationality for the duration of his temporary stay in the US.” The US position adopted by the court in the decision of the Iran- United States Claims tribunal where the US government maintained and the court held that international law recognizes that the “dominant and effective nationality” – a facts and circumstances test – will determine the individual’s nationality.
Credit cards – Not clear why people were asked to provide INS with their credit or debit card numbers.
In addition to the survey, here are a few more observations:
Paperwork Reduction Act Violations – INS, and its successors have used unapproved paper forms and have failed to comply with the public protection provisions of the Paperwork Reduction Act (Section 3512 of the PRA). Various forms were used. Form I-877 is particularly troubling as it states that the statement “must be given freely and voluntarily”, yet the final registration rule makes clear that any willful failure or refusal to comply with the required information collection would constitute a failure to maintain nonimmigrant status and a deportable offense.
Right to counsel – routinely denied once registrant is sent to investigations. In NYC, this occurred regularly, even after
District Director said that attorneys must be allowed access (see attached). At this important stage, registrants were often asked if they would like to waive their right to a hearing before an IJ. Translators also not permitted to accompany registrants to investigations.
Some people were erroneously not registered if they could not prove that they entered the US as nonimmigrants, even though they actually did.
Registration leaves open a lot of unanswered questions. Should persons who failed to register under an inherently discriminatory program be penalized later when they file for permanent residency? Can information be used against a noncitizen taken on forms that violated the Paperwork Reduction Act? Finally, if registration is ultimately viewed in the eyes of the American people and Congress as a disgraceful program, and not taken forward (we are seeing signs of that with the new DHS’ US Visit program
), should those who decided to register still be subject to deportation? I would like to see the program rescinded and deportation proceedings terminated based on adverse information gathered against the person through the registration program.
* Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, practices immigration law in New York City. He is First Vice Chair of the Board of Trustees of the American Immigration Law Foundation and recipient of the 1997 Joseph Minsky Young Lawyers Award. He is also Chair of the Immigration and Nationality Law Committee of the Association of the Bar of the City of New York. He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted at 212-425-0555 or