AILF Q&A About "Call-In" Special Registration

March 3, 2003

AMERICAN IMMIGRATION LAW FOUNDATION
________________________________________

REVISED QUESTIONS AND ANSWERS ABOUT “CALL-IN” SPECIAL REGISTRATION

[This Advisory incorporates amendments to an earlier advisory and is accurate as of March 2, 2003. New material is in BOLD. This advisory is not legal advice and does not substitute for the advice of an immigration lawyer familiar with the facts of an individual case.]1

  1. What is “call-in” special registration?
  1. The Attorney General has notified specified nonimmigrants already in the U.S. that they must appear in person at designated INS office and be photographed, fingerprinted and interrogated.
  1. Who is required to register under “call-in” special registration, and by when?

 

  1. To date, the Department of Justice (DOJ) has issued four notices listing different countries. Different dates apply to each group of countries:

The “five” countries (“Group I” notice): Iran, Iraq, Sudan, Syrian, Libya

  • Male citizens or nationals of these countries who
  • were born on or before November 15, 1986
  • were inspected and last admitted to the U.S. as nonimmigrants
  • on or before September 10, 2002 and who
  • will remain in the U.S. at least until December 16, 2002
  • and who did not register on or before the original deadline, December 16, 2002

must register with the INS at one of specified locations between January 27, 2003 and February 7, 2003, inclusive2 See 67 Fed. Reg. 66765-68 (Nov. 6, 2002); 68 Fed. Reg. 2366-2367 (Jan. 16, 2003).

The “thirteen” countries (“Group II” Notice): Afghanistan, Algeria, Bahrain, Eritrea, Lebanon, Morocco, North Korea, Oman, Qatar, Somalia, Tunisia, United Arab Emirates, Yemen

  • Male citizens or nationals of these countries who
  • were born on or before December 2, 1986
  • Were inspected and last admitted to the U.S. as nonimmigrants
  • on or before September 30, 2002 and who
  • will remain in the U.S. at least until January 10, 2003
  • and who did not register on or before the original deadline, January 10, 2003

must register with the INS between January 27, 2003 and February 7, 2003, inclusive See 67 Fed. Reg. 70525-28 (Nov. 22, 2002); 68 Fed. Reg. 2366-2367 (Jan. 16, 2003).

The “two” countries (“Group III” Notice): Pakistan and Saudi Arabia

  • Male citizens or nationals of these countries who
  • were born on or before January 13, 1987
  • were inspected and last admitted to the U.S. as nonimmigrants
  • on or before September 30, 2002 and who
  • will remain in the U.S. after February 21, 2003

must register with the INS between January 13 and March 21, 2003 inclusive. See 67 Fed. Reg. 77642-77644; 68 Fed. Reg. 8046-80474.

The “five” countries (“Group IV” Notice): Bangladesh, Egypt, Indonesia, Jordan, and Kuwait

  • Male citizens or nationals of these countries who
  • were born on or before February 24, 1987
  • were inspected and last admitted to the U.S. as nonimmigrants
  • on or before September 30, 2002 and who
  • will remain in the U.S. after March 28, 2003.

must register with the INS between February 24, 2003 and April 25, 2003, inclusive. See Fed. Reg. 68 2363-2366; 68 Fed. Reg. 8046-80475.

  1. Who does not have to register?
  1. Even if from one of the designated countries, the people who are not required to register under “call-in” special registration are:
  • Females
  • U.S. citizens
  • Lawful permanent residents of the U.S.
  • “A” and “G” nonimmigrants
  • Anyone who applied for asylum before a specified date6
  • Anyone who already was granted asylum.
  1. What about someone who has dual citizenship or nationality?
  1. If the person is a citizen of one country but may have retained citizenship or nationality of one of these specified countries, the Federal Register notices seem to say that the person must register

However, if the person is a U.S. citizen and possibly a citizen or national of another country, he does not have to register because the statute, INA section 263(a) and regulation, 8 C.F.R. 264.1(f), and “call-in” registration notices, 67 Fed. Reg. 67765 and 70525 apply only to “aliens.”

  1. What is a “national”?
  1. The INA defines a “national” as “a person owing permanent allegiance to a state.” INA section 101(a)(21), 8 U.S.C. 1101(a)(21). This is not a very helpful definition in this context. Allegiance must be determined by reviewing the law of the country, as each country determines its own citizenship and nationality law.

However, Board of Immigration Appeals precedent says that a dual national nonimmigrant is deemed for immigration purposes to be of the citizenship or nationality he claimed or established at the time he entered or was admitted to the United States. Matter of Ognibene, 18 I & N Dec. 425 (BIA 1983). The continued presence of the person as a nonimmigrant is strictly governed by the condition of the nationality under which he was admitted, the Ognibene decision says. See also Jang v. Reno, 113 F.3d 1074, 1078 (9th Cir. 1997) (approving the INS policy of treating a dual national as a national of the country upon whose passport he entered).

  1. What if my client’s asylum application was denied and is no longer pending?
  1. Depending upon which call-in notice applied to him, he may or may not have to register under call-in special registration. The first two Federal Register notices (covering Groups I and II) said that people who “applied for” asylum already have provided sufficient information in their applications as well as their fingerprints. 67 Fed. Reg. 67766 and 70526. For people in Groups III and IV, that is, citizens or nationals of Pakistan, Saudi Arabia, Bangladesh, Egypt, Indonesia, Jordan, or Kuwait, the Federal Register notices say that they do not have to register if their applications for asylum were pending on the date of the notice: December 18, 2002 for Group III, 67 Fed. Reg. 77643 and January 16, 2003 for Group IV.
  1. Do people who entered the U.S. without inspection need to register?
  1. No. Only people who were inspected by the INS and last admitted into the U.S. as nonimmigrants are required to register under the call-in special registration.
  1. People who were admitted under “advance parole” -- do they need to register under “call-in” special registration?
  1. The INS says these people are “parolees” and thus not subject to call-in special registration. However, apparently not all offices are following this interpretation. We have received a report from a parolee who was required to appear, register and be interrogated even though he had been fingerprinted and photographed under the NSEERS program when he came into the United States on “advance parole.” In the absence of more concrete guidance, it is advisable to check with the local INS office and if they advise that the parolee does not have to register, to make a record of the conversation or communication.
  1. Where do these men need to register?
  1. The DOJ has specified only certain INS offices for special registration. A list of these offices is at 67 Fed. Reg. 67767, 70527, 77643, and 68 Fed. Reg. 2365-66 and also on AILF’s website http://www.ailf.org/lac/911PA.htm and on the INS website: http://www.ins.gov/graphics/lawenfor/specialreg/index.htm
  1. What must registrants present and what will happen when they go to register?
  1. Registrants will be asked questions “under oath.” The INS agent will “record” the answers. The registrant will be fingerprinted and photographed. The officer may ask to see travel documents, including passport and I-94; any other government-issued identification; proof of residence, including leases or proof of titles; proof of school matriculation; and proof of employment. The officer may ask many other, unrelated questions, including questions related to national security and law enforcement.
  1. Is the registrant given proof that he registered?
  1. After registration, the INS is supposed to mark the registrant’s I-94 (Arrival-Departure Record) with a Fingerprint Identification Number (FIN) to show that the person has registered. If the person does not have an I-94, he is supposed to be able to apply for a replacement.
  1. Does the registrant have to answer all questions the INS asks?
  1. The rule purports to require that the registrant answer all questions and provide all requested information, even if it is not “material” to his immigration status. The regulation says that registration is not complete unless all of the requested information and documents are provided. 8 CFR 264.1(f)(9). Assuming this regulation – which primarily applies to the “entry” registration -- applies to the call-in registrants, the call-in registrants must provide all information and documents the INS requests.
  1. How has the INS been treating people who go to register under call-in special registration?
  1. Many people, including some who thought they were in lawful status, have been arrested when they have gone in to register. Some have been detained by the INS for up to several days before being released, sometimes after paying a cash appearance bond. In other cases, the INS has issued a Notice to Appear (NTA) to begin removal (deportation) proceedings but has not detained the men.
  1. What if my client has an adjustment of status (AOS) application pending and filed under 245(i)?
  1. The INS has arrested and/or issued NTAs against many people who have AOS applications pending, even if they filed under 245(i). Of course, 245(i) did not convey any legal status, but we submit that the intent of Congress would be thwarted if 245(i) beneficiaries were deported before they can adjust their status.
  1. May a lawyer accompany the person registering?
  1. Yes, the INS should permit a lawyer to accompany the registrant. We have heard of some cases, however, where the INS did not allow the lawyer to accompany the person registering. If this happens, you should protest and contact AILA or AILF immediately.
  1. If my client was admitted as a nonimmigrant but now is out of status, should he register?
  1. It is impossible for us to give general advice that will fit every situation. Also, special registration is very new, so there is a lot we do not know about what will happen. But here are some risks and reasons on both sides. Of course there may be other risks and reasons in individual cases. Ultimately, the decision must be your client’s to make, after being informed of all the risks and reasons in his particular case.

    The risks of registering, especially if your client is out of status:
  • The INS will ask him many questions, including (but also possibly going far beyond) his immigration status, his job, living situation, religious practices, family, friends, and acquaintances;
  • the INS may arrest and detain him for hours or days;
  • the INS may issue an NTA and begin removal (deportation) proceedings;
  • INA section 266(c) provides criminal penalties for knowingly providing false information when registering.

The risks of not registering:

  • a willful failure to register may make the nonimmigrant deportable for failure to maintain nonimmigrant status (unless the AG finds the failure was “reasonably excusable”);
  • although the regulations do not say so, there is concern that failure to register may be used by the INS or an immigration judge in the future as a negative discretionary factor in AOS or other applications for relief;
  • INA section 266(a) provides for criminal penalties for willful failure or refusal to register.
  1. What about a person who entered under the Visa Waiver Program?
  1. Visa Waiver entrants agree to waive many rights upon entry, including the right to a regular removal hearing, except to apply for asylum. INA section 217(b). Visa waiver entrants who remained past their authorized stay are at risk of being removed summarily, without any hearing before an immigration judge. Visa waiver entrants may adjust status but only as an immediate relative of a U.S. citizen.
  1. Are there any “waivers” of the special registration requirements?
  1. The special registration regulation provides for possible “relief” in individual cases. New 8 C.F.R. 264.1(f)(7) allows a nonimmigrant who is subject to special registration to apply to the district director or other designated official for this relief. The regulation says that the decision of this official is final and not appealable.

Also, the regulation permits the Attorney General or the Secretary of State to exempt any individual nonimmigrant from the related “entry-exit” special registration, and thus possibly from the “call-in” special registration as well. 8 C.F.R. 264.1(f)(1).

We do not yet know what criteria, is any, will be used in applying either of these “relief” provisions.

  1. Do other registration requirements apply to people from these countries?
  1. Yes. They must register annually. They must notify the INS of changes of address within 10 days of such a change. They may also be required to depart only from certain designated ports. 8 CFR 264.1(f)(8). Assuming this regulation – which primarily applies to the “entry” registration -- applies to the call-in registrants, the call-in registrant’s failure to depart from one of the designated ports may result in a presumption that the registrant is inadmissible. 8 CFR 254(f)(8). See our website or the INS website for additional information.
  1. What if my client did not register by the “Group I” deadline of December 16, 2002 or “Group II” deadline of January 10, 2003 but is considering registering during the “extension” period, between January 27, 2003 and February 7, 2003? Does he need an explanation for failing to register on time? Will the INS issue an NTA to begin removal proceedings, or arrest him for failing to register earlier?
  1. Under the January 16, 2003 Federal Register Notice there should be no adverse consequences for people who missed the December 16 or January 10 deadlines and who register between January 27 and February 7. The Federal Register Notice expressly says that such registration “will be considered to have been made in a timely fashion.” 68 Fed. Reg. 2366 (Jan. 16, 2003).

    Thus, there should not be any immigration law or other consequences for failing to register earlier. Of course, this registration extension does not constitute a waiver or forgiveness of any other immigration status violation or any other violation of law.
  1. What if my client already registered, but registered after his deadline. The INS issued a “Notice to Appear” and put him in removal proceedings. Is there anything I can do now?
  1. If your client was otherwise in status when he went to register – that is, if the only immigration issue for which he was put into removal proceedings was his failure to register on time – you may be able to move the Immigration Judge to terminate proceedings based on the January 16, 2003 extension of the registration period. Your argument would be that the Department of Justice has forgiven earlier failures to register timely, that this forgiveness applies to your client, and that your client should not be in a worse position than people who did not register until the “extension” period.
  1. Should citizens and nationals of other countries expect to have to register?
  1. Yes, we expect that the DOJ may add other countries to the list, so people should be alert and check the AILA, AILF, and INS websites.
  1. Q. Under what authority is the Attorney General requiring registration?
  1. The Attorney General is citing INA sections 263(a) and 265(b), 8 U.S.C. sections 1303(a), 1305(b) and 8 C.F.R. 264.1(f) for authority.

    [March 2, 2003]

1 Copyright (c) 2002, American Immigration Law Foundation. Available for reprint with acknowledgement to AILF.
2 The November 6, 2002 notice said that people from “Group I” countries were required to register on or before December 16, 2002. but that deadline was extended via Federal Register notice on January 16, 2003.
3 The November 22, 2002 notice said that people from “Group II” countries were required to register on or before January 10, 2003 but that deadline was extended via Federal Register notice on January 16, 2003.
4 The December 18, 2003 notice said that people from "Group III" countries were required to register on or before February 21, 2003 but the deadline was extended via Federal Register Notice on February 19, 2003..
5 The January 16, 2003 notice said that that people from “Group “IV” countries were required to register on or before March 28, 2003 but the deadline was extended via Federal Register Notice on February 19, 2003.
6 For those from the group of five countries (“Group I”), the person must have applied for asylum on or before November 6, 2002. For the group of 13 countries (“Group II”), the person must have applied for asylum on or before November 22, 2002. For “Group II,” the group of two countries - Pakistan, and Saudi Arabia - the asylum application must have been pending on December 18, 2002. For “Group IV”, the group of five countries, the asylum application must have been pending on January 16, 2003.

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