American Immigration Lawyers Association 918 F Street, N.W.
Washington, D.C. 20004
(202) 216-2400
Re: Comments to Interim Rule "Suspending the 30-Day and Annual Interview
Requirements from the Special Registration Process for Certain
Nonimmigrants" ICE No. 2301-3; RIN 1653-AA29 (68 Fed. Reg. 67577 (December
2, 2003)
The American Immigration Lawyers Association (AILA) submits the following
comments on interim regulations published in the Federal Register on
December 2, 2003, that "suspends" the 30-day and annual re-registration
processes under NSEERS and amends the program in other regards.
AILA is a voluntary bar association of more than 8,700 attorneys and law
professors practicing and teaching in the field of immigration and
nationality law. AILA takes a very broad view on immigration matters because
our member attorneys represent tens of thousands of U.S. families and
businesses that have applied on behalf of persons seeking to enter the
United States on a temporary or permanent, or represent those individuals
themselves. Our members also represent asylum seekers, often on a pro bono
basis, as well as athletes, entertainers, and foreign students.
AILA congratulates the Department of Homeland Security for its decision
to drop the resource-intensive and counter-productive policy of requiring
Special Registrants to re-register at various intervals, and urges the
Department to give similar reconsideration to other aspects of the program.
In the absence of such reconsideration, AILA urges that the surviving
aspects of the program be adequately publicized, to avoid the traps that the
program now sets for the innocent and unwary.
We direct your attention to the following specific comments on selected
aspects of the interim rule.
1. The relationship between US-VISIT and NSEERS needs clarification.
This rule change was publicly presented as a case of US-VISIT rendering
NSEERS unnecessary. But the regulation does not end NSEERS: it continues
the port of entry program, apparently side-by-side with US-VISIT. It
appears under the regulation that, when a person subject to NSEERS enters
the U.S., he will undergo BOTH forms of registration. This seems a
pointless exercise in redundancy.
Where the two programs differ, at least at this time, is on departure
control. NSEERS registrants must, under the regulation, register
departure. Most US-VISIT registrants do not have to fulfill an exit
control requirement at this time. But this differentiation is giving rise
to significant confusion. There have been a number of instances in which
persons previously registered on entry, or persons of one of the
nationalities previously specified as subject to port of entry NSEERS,
have been photographed and "two-printed" on entry, apparently as part of
US-VISIT. But these same individuals were given no indication that their
registration was NSEERS, or that they would be subject to departure
registration requirements. The logical conclusion would be that they are
not registered under NSEERS, and thus are not subject to departure
registration. However, no one can be certain that this is the case.
This confusion is exacerbated by two recent events. The first
surrounded the issuance of the instant interim rule. It was widely
reported at that time that "Special Registration is ended." Indeed,
several local DHS offices are telling people exactly that. But with port
of entry and departure registration still in place, Special Registration
is far from over. Also, the publicity surrounding the implementation of
US-VISIT will lead most travelers to believe that any port of entry
registration activity is US-VISIT and not the "ended" NSEERS.
We therefore urge that the port of entry NSEERS program truly be
abandoned in favor of US-VISIT. If, however, the Department does not
follow this recommendation, it is essential that all inspectors be utterly
and unmistakably explicit in advising the individual who was registered
that the registration is, indeed, NSEERS and in explaining the ongoing
obligations of the program. Further, the inspectors must provide clear
written materials in a language the subject individuals can read regarding
the further obligations under NSEERS.
2. The provisions for notification of nonimmigrants about individually
targeted re-registration need to be further refined.
We are very concerned about the provisions for individually targeted
notifications for additional interviews. First, ten days' notice is
inadequate. In many cases aliens who are living and working in this
country may not be able to comply with such a short notice requirement.
For example, a physician may be unable to rearrange his or her schedule
within the allotted time in order to appear at the ICE office. Also, the
Background Information of the rulemaking refers to ten days "measured from
the date DHS…sends notice." In other words, mailing time would count
toward the ten days, thus providing even less notice for registrants.
Second, under the interim rule, notification by publication in the
Federal Register alone would appear to satisfy the agency's notice
obligation. Under the "call-in" registration program, notification through
publication in the Federal Register proved to be inadequate at best.
Simply put, the public does not read the Federal Register. Given the
importance of the information which the government claims justifies this
program, it would seem that the agency would recognize the futility and,
indeed, unfairness of using only the Federal Register as a method of
notice. Therefore, the rule should require that, if notice is to be by
publication in the Federal Register, it must be accompanied by one or more
additional methods "reasonably calculated to reach the alien", including
extensive outreach programs.
Third, the interim rule fails to take into account the all-too-frequent
situation where the alien has properly notified the government of a change
of address, but DHS sends the notice to the old address by mistake. Often
such notices are not forwarded and, if they are, it regularly takes more
than ten days to reach the new location.
Further, the rule does not take into account the peripatetic nature of
travel. Many nonimmigrants come to the U.S. for purposes of business
and/or tourism. An alien who moves around the U.S. visiting clients,
attending business meetings or touring the country, may not be able to
receive notification through the post or email. However, under the
structure of the rule, such an alien would be considered to have failed to
appear for an additional NSEERS interview if s/he did not respond to
notification that the alien could not have received while traveling.
For these reasons, extensive public outreach will be necessary for any
new requirements for re-interview.
3. Registrants need adequate notice about obligations to report changes
in circumstance.
The regulation continues the requirement that NSEERS-registered
individuals provide notice of changes in address, school, employment, etc.
As with all other NSEERS obligations, we continue to be troubled by the
inadequacy of notice to registrants about these obligations. In
particular, the obligation to report a change of employment is unique to
NSEERS registrants, and this requirement has not been explained to many of
the people subject to it. Unless and until the agency can find an
effective means of communicating the requirement, it should not be in the
rules.
We welcome the acknowledgement of the redundancy of having students in
SEVIS also report changes, but this provision needs further clarification.
As currently written, the rule indicates that "Notice to the Department of
Homeland Security of a change…through the Student and Exchange Visitor
Information System (SEVIS) shall constitute notice under this paragraph."
The flaw in that provision is that it is not the student who enters this
information into SEVIS, it is the school officer, over whom the student
has no control. While most school officers are quite diligent about these
matters, they are only human, and mistakes happen. The student should not
have to face the onerous consequences of this rule due to a mistake by the
school.
We therefore recommend that this section be amended to indicate that a
student's provision of information regarding such changes to the school
officer for entry into SEVIS should suffice to fulfill the notice
requirement. While one could argue that the student's provision of the
information to the school is prima facie evidence of a lack of
willfulness, the current enforcement environment is one of almost zero
exercise of prosecutorial discretion. Thus, lack of explicit treatment of
this issue in the regulation could result in students needlessly being
subjected to the severe stress and expense of a removal proceeding when
none is necessary or warranted.
4. Walkaway materials are inadequate and too often nonexistent.
Although the interim rule indicates that NSEERS-registered individuals
"shall" be given written instructions regarding their further obligations,
too often these materials are not provided at all, are countered by oral
instructions given by officers, are written in English when the registrant
does not understand English, or are not clear even to those who read
English. Appropriate materials must be developed and provided to the
individuals in question on a consistent basis. Further, the agency, in its
enforcement and adjudicatory activities, must recognize the massive
confusion that this program, and rumors and reports about this program,
have generated. Appropriate discretion must be exercised in enforcement
and in consideration of applications for immigration benefits based on an
understanding of the challenges the affected community has faced and
continues to face in making sense of the requirements of this program.
5. Departure registration should be ended.
As previously indicated, confusion prevails regarding the status of
NSEERS. Affected communities, including officers of DHS itself, sincerely
believe that the program has ended. There has been virtually no publicity
about departure registration, and there has been no recent expansion in
the number of ports that even can conduct such registration. People simply
don't know that the departure requirement exists or, if they do know, they
are given misleading or blatantly wrong information by airlines, DHS
personnel and others about how to fulfill it. The departure registration
system has been a fiasco that does not achieve the end of "closing out"
registration, and results only in continued ill will as people are barred
from entering the U.S. based on violation of a rule they did not know is
in place. If the Department is not willing or able to put the needed
resources into a public awareness campaign, this requirement should be
eliminated altogether.
6. Consideration needs to be given to individuals harmed by the
program's failures and weaknesses.
The Department should not continue to punish individuals for
infractions of the abandoned provisions of this program. Indeed, since
most of these infractions were due to the agency's failure to adequately
publicize the requirements or due to the mass panic that ensued after the
then-INS inappropriately detained hundreds of registrants, the agency
should take some responsibility to make right what it and its predecessor
did wrong. Even today, people are hearing about the registration
requirements for the first time, or are only now hearing about
re-registration requirements to which they were subject prior to this
regulation and which this regulation does not forgive. However, they
cannot even perform substantial compliance by registering or
re-registering late, because local offices do not appear to have the
capacity to register people at this time and are advising individuals that
the Special Registration program is over.
Particular consideration should be given to persons with pending
applications under section 245(i) who did register, and were placed in
removal proceedings even though their presence raises no concerns of
terrorism or criminal conduct. The enactment of section 245(i), and the
cautions by the legacy INS to the field to use prosecutorial discretion in
moving against 245(i) applicants, should not have been abandoned in favor
of what turned out to be an "arrest everyone" mentality. These cases
continue to clog the immigration courts, even as the applicants continue
to wait for a seriously-backlogged U.S. government to act on their
years-old applications and petitions. The time has come for the Department
to acknowledge the complex history of 245(i) and its own and its sister
agencies' shortcomings when it comes to adjudicating applications in a
timely manner, and to drop removal proceedings against those who present
no threat to the U.S.
7. The increased information about waivers of NSEERS requirements is
welcomed and needs to be more fully publicized.
We are pleased to see that information was provided in the rulemaking
about the process and standards for waivers of the departure registration
and port of entry registration requirements. We urge the agency to more
fully publicize the availability of these waivers, and to ensure that its
personnel understand that they do, indeed, have the authority to grant
them without shifting the responsibility to the State Department.
8. Further attention must be paid to the information collection burden.
The interim rule places an undue information burden on registrants.
First, nonimmigrants subject to POE registration will have an additional
burden (and one of questionable efficiency) in responding to both US-VISIT
and NSEERS at the POE. Further, for those returning nonimmigrants who were
previously registered under NSEERS, it would appear to be a better use of
government resources to devise a methodology by which information
previously collected and stored under an individual's FIN number could
automatically be input into the US-VISIT data base. This would obviate the
need for the nonimmigrant, and the agency, to duplicate time and effort in
obtaining information already in the database.
We applaud DHS' efforts in this rulemaking to decrease the burdens to
itself and the public engendered by the DOJ's ill-advised NSEERS program. We
urge the Department to rid itself of the remaining vestiges of that failed
program and concentrate its resources and efforts on programs more likely to
produce true security protections.
