DHS Releases Long-Awaited Memo on Controversial 9/11 Program

Author: on 05/03/2012


By Denyse Sabagh, AILA Past President, and Shoba Sivaprasad Wadhia, AILA Amicus Committee

NSEERS (National Security Entry and Exit Registration System) was a controversial tracking program launched in the wake of 9/11 and aimed at visitors from predominantly Arab and Muslim countries. Those subject to NSEERS or special registration were fingerprinted, photographed and interrogated at ports of entry, inside a local immigration office and upon departure from the United States.  The NSEERS program contained all of the features of bad policy, as it appeared to target individuals based on their religion and national origin; caused thousands of men to be placed in removal proceedings after complying with the program; and proved to be ineffective as a counter-terrorism tool.

Last month, the DHS released a memorandum to address the scores of people who did not register under NSEERS when they were supposed to. It clarifies that innocent individuals who failed to previously register should not suffer immigration consequences, such as a denial of a green card or a deportation charge. The memo could help a countless number of young men who have laid down roots, built families and/or been steadily employed in the United States but whose immigration status is vulnerable because of an NSEERS issue.

The April Memo provides that individuals who “willfully” failed to register under NSEERS in the past may be subject to immigration violations. It goes to elucidate the definition of willful as “deliberate, voluntary, or intentional, as distinguished from that which was involuntary, unintentional, or otherwise reasonably excusable”; instructs that the burden of proving that his registration was not willful is on the non-citizen (which may not be satisfied if failure to comply was based on fear or inconvenience); and notes that even where an individual is found to have “willfully” failed to register, the agency may exercise prosecutorial discretion in accordance with its litany of memoranda on the topic.

Previous adjudications of “willful failure” did not give credence to the applicant’s statements such as “I was 16 years old when I entered, I could barely speak English and my family was not involved in the community, I did not know about special registration.”  In some cases, applicants were not even asked the question “Why didn’t you register”? ICE took the passports and stamped them  “willful failure” and told individuals that everything would be fine. Things were not fine and many people ended up in deportation. People’s lives have been damaged due to this program and it is critical that DHS conveys its intent clearly to rectify this to the field with training and specificity.  Without it, even with the April Memo, the hoped for result will fail.

The April Memo is an encouraging step but what is ultimately needed is a termination of NSEERS and a clear policy that protects all people affected by NSEERS from immigration consequences unless DHS can prove that such protection is adverse to the public interest.  The NSEERS program has brought more than a decade of fear and damage—the Department’s own Inspector General, civil rights and immigration advocates, and the private bar have all recommended that the NSEERS program be terminated.

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