ACLU Letter to the Department of Justice on the "Registration and Monitoring of Certain Nonimmigrants," Program (NSEERS)
Office of Management and Budget
Office of Information and Regulatory Affairs
Attention: Department of Justice Desk Officer
725 17th Street, NW, Room 10235
Washington, DC 20530
Re: 30-Day Notice of Information Collection under Review: National Security Entry-Exit Registration System; File No. OMB-34 (68 F.R. 10034-10035) (Mar. 3, 2003).
To whom it may concern:
In response to the above-referenced notice published in the Federal Register on March 3, 2003, we write on behalf of the American Civil Liberties Union and its 330,000 members, to address matters related to the ""Registration and Monitoring of Certain Nonimmigrants,"" frequently referred to as ""special registration"" or ""NSEERS.""
The March 3, 2003 publication of the Federal Register included notice of an information collection request by the Department of Justice (DOJ), Immigration and Naturalization Service (INS) for review and clearance under the Paperwork Reduction Act of 1995.1 According to this notice,
The information collection is contained in the preamble of the INS proposed rule No. 2216-01 (RIN 1115-AG7) which was published in the Federal Register on June 13, 2002 at 67 FR 40581. The publication allowed for a 60-day public comment period. Comments were received and reconciled in the final rule published in the Federal Register on August 12, 2002 at 67 FR 52584. The INS intends to request an extension of this information collection. Therefore, the purpose of this notice is to allow an additional 30 days for public comments.
Specifically, the March 3, 2003 notice seeks comments regarding (1) the necessity of the ""proposed"" information collection for the proper performance of the agency's functions; (2) the accuracy of the agency's estimate of the burden imposed by the information collection, including the validity of the methodology and assumptions used; (3) the quality, utility, and clarity of the information to be collected; and (4) the burden that the information collection would impose on those who are to respond. See 68 F.R. 10034 (Mar. 3, 2003).
In response, we note the following:
1. The public was not afforded 60 days to comment on NSEERS. After the proposed rule for NSEERS was published on June 13, 2002, the public was allowed until July 15, 2002, to submit comments. Moreover, significant aspects of NSEERS were not open to comment when the registration rule was promulgated.
2. The Department of Justice has not complied with the March 1, 2003 reporting deadline imposed by Congress in the Department of Justice Appropriations Act of 2003.2 The nature and scope of this submission is necessarily affected by the Department of Justice's failure to provide crucial information about the creation, scope, impact, and future of NSEERS.
3. Dating back to the announcement and proposal of NSEERS, the Department of Justice has shielded aspects of its registration campaign from public scrutiny. Of particular concern is the ""call-in"" component of NSEERS, which affects nationals of the special registration countries who entered the United States before new registration process was put into effect. The application of a new registration system to persons already admitted to the United States was only vaguely noted as a potentiality, and even then was largely buried in a presentation that focused on the registration of arriving nonimmigrant aliens.3 The proposed rule did not give reasonable notice that the call-in component of the registration would in short time come to dominate the registration program and require tens of thousands of long-present men to register within a truncated time period.
4. The proposed and final rule publications did not accurately apprise the public of the significant burdens that special registration would impose, and they did not accurately represent the information that would be demanded of registrants.
5. Most importantly, the public was not afforded a meaningful opportunity to comment on the discriminatory fashion in which the call-in registration requirements would be applied.4 The proposed rule did not indicate who would have to register. Some foresaw the risk that the authority claimed would be used selectively against Arabs and Muslims, but the Department of Justice generally deflected and dismissed concerns about targeting and stigmatization.5 After disavowing any discriminatory intent, the Attorney General - without notice and comment - designated 25 predominantly Middle Eastern and Muslim nations for call-in registration. Contrary to the Department's suggestions in promulgating the registration rule that only non-citizens who present an ""elevated national security concern"" would be affected, individualized suspicion has played no role in the imposition of call-in registration. In our view, casting a burdensome and stigmatizing dragnet of the sort that NSEERS embodies is inimical to our nation's laws and values.
6. The Department has sent vague and contradictory messages regarding the nature of the call-in registration. At times, it has indicated that NSEERS is the ""first step"" of the congressionally mandated comprehensive entry-exit system that will cover all nonimmigrant aliens; at other times, it has indicated to the contrary. The ultimate scope of the call-in component remains unclear, but the estimated number of registrations as set forth in the March 3 notice suggests that it will not be applied uniformly.6
7. The scope and application of call-in registration has additional flaws. Other aspects not subject to sufficient notice and comment include but are not limited to: (a) the imposition of call-in registration requirements on persons who are not ""nonimmigrant"" aliens; (b) the imposition of call-in registration requirements on persons who are citizens or nationals of more than one country or otherwise in a manner that reverses a long-established interpretation of ""nationality;"" and (c) the reversal of the manner in which particular ports of entry (POEs) are allowed and disallowed for departure registration.
8. The implementation of the call-in registration has been marked by serious problems.7 As an initial matter, notice has been wholly inadequate. The ""call-in"" notices were confusing; DOJ and INS did not engage in the kind of publicity efforts that would have been reasonably calculated to inform affected persons; the detention of hundreds of registrants at the end of the first call-in period led to widespread fear and confusion; and the INS web site affirmatively misadvised Arabic readers as to who was required to register. Even late into the call-in registration, confusion and uncertainty has persisted. The continuing lack of clarity attending the use of ""nationality"" as a definitional factor has been particularly problematic.
9. Given the relative scarcity of registration sites, many individuals presumably have had to travel long distances to reach registration sites. Once there, they often endure long lines and waits that stretch on for many hours. As deadlines have approached, registrations at some sites reportedly have run into the night. The burden imposed by the registration requirements goes far beyond what the public could have been anticipated when the rule was promulgated. Certainly, the actual experience of registrants contradicts the estimate of 30 minutes per registration.
10. The implementation of NSEERS has been characterized by a lack of uniformity that has engendered further problems. Examples from reports from around the country include the following: Registrants and their representatives have experienced deliberate interference with the right to counsel. Translation services have not been provided to ensure effective communication. Registration officials frequently fail to inform registrants of subsequent registration obligations, including the restrictions on departures from the United States; when such information is provided, reports indicate that it is often incomplete and that printed materials are not available in the primary languages used by many registrants. The various registration sites have employed different forms for data collection. Registrants have been subjected to burdensome document demands that were not publicized in advance. Contrary to the representations made when the special registration rule was presented, registrants are often asked to provide information that has little or no bearing on their immigration status, including particularly disturbing questions about religious beliefs and practices.
11. Inconsistent detention and bond practices and varying policies regarding the issuance of Notices to Appear have been troubling as well. Of further concern has been the frequency with which removal proceedings have been brought against individuals who are pursuing adjustment of status. This concern is heightened for persons in the Visa Waiver Program who are at risk for removal before the adjudication of their adjustment applications.
12. The registration of thousands has meant that scarce resources have been diverted from other vital functions. In particular, it appears that the registration has negatively impacted the already-delayed adjudication of adjustment applications.8 Presumably, the call-in has also consumed resources that would have been used for the entry-exit system demanded by Congress. Further diversion of resources is occasioned by the institution of removal proceedings for persons who have already begun the adjustment-of-status process as well as those who have other avenues of relief.
What has already come to pass, as observed above, cannot be cured by a renewed and limited comment period.9 In brief, we nonetheless note the following:
1. The utility of NSEERS - particularly its selective nature - is seriously disputed. The INS has had a history of not being able to manage the data that it already collected. Adding more data to the mix will not fix that problem, particularly when much of the data collected does not bear on immigration status and particularly when it duplicates information already provided, as is the case for adjustment-of-status applicants. Moreover, the agency's proper functions are not served by the singling out of particular groups.
2. It is difficult to comment on the ""proposed"" information collection. The notice refers to a previously approved information collection. As noted above, however, the actual information collection has gone far beyond the limited data identified in the proposed rule published in the June 13, 2002 Federal Register.10 If some form of registration is to continue, the information collected should be confined to data that is needed to identify registrants and data that bears directly on immigration status. Registration should not entail the collection of information and documents that registrants have already provided. Nor is it appropriate for the agency to seek the irrelevant and oftentimes invasive information that has been demanded of many registrants. Furthermore, the information collection must be uniform and predictable. It is unacceptable that registrants be subject to document and other information demands not identified in advance.
3. The agency's estimate of the burden imposed by the information collection is highly flawed. It fails to account for the travel and wait time that registrants endure as a result of the location of registration sites and extraordinarily cramped registration periods for massive numbers of registrants. Nor does the estimate account for the fact that affected individuals are subject to ongoing reporting requirements.11 In addition, the estimate does not factor in the significant diversion of agency resources and the attendant burden on those who will endure further delays in the adjudication of their applications for immigration benefits.
4. Having noted the flaws of the 30-minute and 70,000-hour estimates, we further observe that the burden imposed on registrants and their families goes far beyond the consumption of time and the loss of financial resources. The stigma of being singled out for an invasive and burdensome registration cannot be overstated. Perhaps greater resources would be needed to implement a comprehensive and coherent system that effectively served the intended purposes without the use of a discriminatory dragnet. Such an approach would not only have utility that NSEERS lacks, but would also signal that our nation's laws apply equally, without regard to race, ethnicity, national origin, gender, and religion.
5. The March 3, 2003 Federal Register notice cannot cure the fundamental problems with the creation and implementation of NSEERS. The notice's murky request for comments is limited at best, and it comes far too late. Reports indicate that, as of March 4, 2003, there had already been 122,510 registrations for 88,989 individuals, 46,035 of whom registered through the call-in process.
At a minimum, NSEERS should be suspended until there has been adequate opportunity for notice and comment and until the problems noted above can be rectified. Toward that end, we urge the Department to comply with the informational requirements set forth by Congress in the Department of Justice Appropriations Act of 2003. In the meantime, improperly collected information should be purged from all government databases. Further, given the above-noted fundamental flaws, it is clear that no penalties should be imposed on persons who have not registered, nor should persons who reported for registration be subject to targeted removal efforts, particularly when relief may be available to them.
Sincerely,
Laura W. Murphy
Director
ACLU Washington National Office
Timothy Edgar
Legislative Counsel
ACLU Washington National Office
Lucas Guttentag
Director
ACLU Immigrants Rights Project
Robin Goldfaden
Staff Attorney
ACLU Immigrants Rights Project
cc: Richard A. Sloan, Director, INS Regulations and Forms Services Division
ENDNOTES
1 The Department of Homeland Security on March 1, 2003, assumed legal responsibility for enforcement of federal immigration law. In connection with that reorganization, the Bureaus of Immigration and Customs Enforcement, Citizen and Immigration Services, and Customs and Border Protection were created to replace the Immigration and Naturalization Service. Because the March 3, 2003 notice referred to the INS and because the INS was responsible for implementing NSEERS until March 1, this submission refers to the INS instead of the Bureaus now located within the Department of Homeland Security. Nonetheless, we note that, given the timing and above-noted reorganization, it is unclear why it is the now-defunct INS that is making the request noted in the March 3 Federal Register.
2 Consolidated Appropriations Resolution, 2003, Div. B., Title I (Department of Justice Appropriations Act, 2003), ""General Provisions - Department of Justice,"" Pub. L. No. 108-7 (Feb. 20, 2003), provides, at section 112:The Attorney General, in consultation with the Secretary of Homeland Security, shall provide to the Committees on Appropriations by March 1, 2003 all National Security Entry Exit Registration documents and materials: (1) used in the creation of the System, including any predecessor programs; (2) assessing the effectiveness of the System as a tool to enhance national security; (3) used to determine the scope of the System, including countries selected for the program, and the gender, age, and immigration status of the persons required to register under the program; (4) regarding future plans to expand the System to additional countries, age groups, women, and persons holding other immigration statuses not already covered; (5) explaining whether the Department of Justice consulted with other Federal agencies in the development of the System, and if so, all documents and materials relating to those consultations; (6) concerning policy directives or guidance issued to officials about implementation of the System, including the role of the Federal Bureau of Investigation in conducting national security background checks of registrants; (7) explaining why certain Immigration and Naturalization Service District Offices detained persons with pending status- adjustment applications; and (8) explaining how information gathered during interviews of registrants will be stored, used, or transmitted to other Federal, State, or local agencies.
3 The Summary of the registration rule, for example, did not mention the call-in component. Indeed, in the four pages of Federal Register text explaining the proposed rule, there was a single paragraph mentioning the possibility of call-in registration, and that paragraph did not clearly indicate what would comprise such registration. Even the March 3 Federal Register notice does not make clear that the ""[a]ffected public who will be asked or required to respond"" includes individuals who were admitted before the institution of NSEERS. 68 F.R. 10034 (Mar. 3, 2003).
4 In addition, notice and opportunity to comment were lacking for the other bases of including and excluding persons from the class of aliens subject to the special registration requirements. For example, interested parties could not comment on the inclusion of those who are elderly, disabled, and/or sick. Nor were interested parties able to comment on the imposition of special registration requirements on persons with pending applications for adjustment of status, when such individuals have already provided substantial information. Although this submission focuses on the discriminatory manner in which the call-in component of the registration has been applied, it does not suggest that special registration at ports of entry (POEs) has been imposed in a non-discriminatory fashion.5 In fact, many have indicated that they did not anticipate a registration program so focused on Arab and Muslim men. Numerous letters, public statements, community forums, protests, news articles, and editorials reflect widespread surprise and opposition to the targeted nature of the call-in registration. That Congress has had to inquire about fundamental aspects of the program, including its selective nature, also indicates that NSEERS is not what Congress envisioned in mandating an entry-exit system.
6 The removal of Armenia from the list of countries subject to special call-in registration also calls into the question the prospect of a uniform application of NSEERS.
7 At best, the proposed rule suggested a ""framework"" for a registration program. Given the lack of openness in the planning process and the speed of implementation, it is perhaps not surprising that so many problems arose once the call-in was imposed. As the American Immigration Lawyers Association presciently observed in commenting on the proposed registration rule:A reading of the proposed regulation causes one to wonder about the care with which it was considered. Virtually every pivotal implementation issue-where the 30-date/one-year registration will take place, who will execute it, how entry registration and departure control will be effected, what will be done with the information, how the requirements will be communicated to those affected-is deferred or ignored. No mention has been made of cost, which would have to be substantial, much less of how enforcement of these new rules would be added to the already over-strained enforcement of existing rules.
8 Ironically, many of the individuals who have had to report for registration would have secured permanent-resident status and not been subject to the call-in were it not for adjudication delays.9 This submission does not address the ways in which NSEERS may violate certain statutory and constitutional provisions.
10 Also, although the final rule dispensed with the use of a form, the various registration sites have used a number of different forms to collect a range of data.
11 The estimate also fails to account for the multiple registrations imposed on persons who travel outside and then return to the United States.