American Immigration Lawyers Association
918 F Street, N.W.
Washington, D.C. 20004
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.