NEWS

By Laura D. Francis

The Department of Homeland Security Dec. 22 dismantled a dormant program that had been used to track foreign nationals from mostly Muslim countries who came to the U.S. on temporary visas.

The National Security Entry-Exit Registration System, established following the terrorist attacks of Sept. 11, 2001, was seen as the vehicle that President-elect Donald Trump could use to implement his promise of establishing a registry of Muslim immigrants. Critics say the program was discriminatory and poorly operated and failed to uncover any terrorists in the nearly 10 years it was in operation.

The program was halted in 2011 when the Obama administration eliminated the registration requirements and removed all countries from the compliance list. With the exception of North Korea, all of the 25 countries on the list were majority-Muslim countries.

But until now, the regulatory framework for NSEERS remained in place, leaving an avenue for easily re-establishing registration and reporting requirements and adding another list of countries.

Dismantling the NSEERS regulations doesn’t prevent the Trump administration from setting up its own program, but it does make the process for doing so lengthier and more difficult.

Could Skirt Formal Process

By removing the program regulations, the Obama administration is trying to make Trump go through the formal notice-and-comment rulemaking process to implement a new program. However, “there are certainly ways the Trump administration could impose this rule or a similar one without going through notice and comment,” American Immigration Lawyers Association President William Stock told Bloomberg BNA Dec. 22. “I think there will be parts of the Republican Party who will want to overcome this action by the administration,” he said.

NSEERS itself was implemented as an interim rule without prior notice and comment, said Stock, who practices with Klasko Immigration Law Partners in Philadelphia. There’s also the Congressional Review Act, which allows Congress to revoke regulations issued within the last 60 days of a legislative session.

It’s still too early to tell whether Trump will carry out his campaign promises in this area, which also include “extreme vetting” of immigrants from certain countries. Trump’s already announced his picks for high-level Cabinet positions, but it’s the “boring, under-the-headlines positions” like DHS undersecretary for policy that “will tell us what the administration is thinking,” Stock said.

No Terrorists Uncovered

Based on the program’s past performance, there’s also uncertainty as to whether a resurrected NSEERS—or similar program—actually would serve its security purpose.

The usefulness of NSEERS “was always outweighed by its expense and intrusiveness,” Stock said. Under the program, citizens of the designated countries were “pulled aside” for detailed questioning and required to report to the government annually so they could be asked the same kinds of questions, he said. These included questions about friends and acquaintances, mosques attended and whether the person knows anyone with a radical interpretation of Islam, he said.

When the program first started, it also required immigrants already in the U.S. to register—including Stock’s clients who were professors, doctors and engineers, he said.

“They weren’t fans of the heavy-handed” approach, which made them feel “that the American government didn’t like them very much,” Stock said.

In addition to not catching any terrorists, NSEERS mostly wound up penalizing people who weren’t aware of the registration and reporting requirements, he said. For example, international students may not have known about the requirements while they were studying, but then they would have to explain why they didn’t register when they tried to switch to another immigration status afterward, he said. “It was a gotcha kind of thing,” Stock added.

NSEERS also wasn’t effective in getting undocumented immigrants to report terrorist activity, because if they reported for the required questioning they would be taken into custody for being undocumented, Stock said.

“As a practical matter it was nothing but a trap for the unwary,” he said. “It was ineffective at capturing any terrorists, and it just made the Muslim community feel like they were under scrutiny, in a not very careful way.”

To contact the reporter on this story: Laura D. Francis in Washington at lfrancis@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

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