Obama Administration Repeals National Security Entry-Exit Registration System
On December 23, 2016, the U.S. Department of Homeland Security (“DHS”) passed a Final Rule repealing the federal regulations which permitted the agency to conduct “special registration” of certain foreign nationals seeking admission to the United States based on their nationality. Those regulations were implemented in 2002 following the attacks on the World Trade Center on September 11, 2001, and were designed to collect information on individuals who may have links to terrorism.
Obama Administration’s Repeal of NSEERS Regulations
In one of its final acts, the Obama administration repealed the National Security Entry-Exit Registration System (“NSEERS”) regulation, closing out the Obama presidency with an immigration-friendly action. This act is largely symbolic, however.
During his campaign, President-elect Trump called for a ban on Muslim immigration to the U.S. While he subsequently backed off from this position, his immigration policy remains a subject of great speculation.
With this, it is worth noting that the Congressional Review Act allows Congress to revoke any Final Rules passed in the Federal Register that were issued within the last 60 days of the legislative session. This would allow Congress to revive the NSEERS regulations with the stroke of a pen under the Trump administration. Alternatively, if the incoming administration wishes to create a new set of federal regulations to govern a Muslim or foreign national registry, they can create a new rule to do so. The current NSEERS regulations were created by a Notice of Proposed Rulemaking in 2002 which bypassed the public notice and comment period normally required.
History of NSEERS
Attorney General John Ashcroft announced the creation of the National Security Entry-Exit Registration System in a June 2002 press conference, noting that it would “expand substantially America's scrutiny of those foreign visitors who may pose a national security concern and enter our country. And it will provide a vital line of defense in the war against terrorism.” Following this announcement, DHS passed a Final Rule in the Federal Register to create a regulatory framework for NSEERS. These regulations granted DHS authority to collect fingerprints, photographs and additional information on certain foreign nationals already present in the U.S. as well as those entering or exiting the U.S. at ports of entry. The regulations also provided that DHS may perform this special registration on foreign nationals from certain countries as well as specific individuals identified by government officers as requiring monitoring. The list of individuals to be monitored based solely on their nationality was not listed in the regulations; rather, the regulations provided that DHS would publish Notices in the Federal Register to add or remove nationalities from the list of those subject to NSEERS. The criteria for identifying specific individuals who would be subject to NSEERS despite not being nationals of one of the targeted countries were never made public. Failure of subject individuals to comply with NSEERS requirements was grounds for deportation.
In the years following creation of NSEERS, several Federal Register Notices were published to identify additional nationalities that would be subjected to the special registration requirements. In all, 25 nations were included in the list and all but one (North Korea) was a predominantly Muslim or Arab nation. The listed countries included: Afghanistan, Algeria, Bahrain, Bangladesh, Egypt, Eritrea, Indonesia, Iran, Iraq, Jordan, Kuwait, Lebanon, Libya, Morocco, North Korea, Oman, Pakistan, Qatar, Saudi Arabia, Somalia, Sudan, Syria, Tunisia, United Arab Emirates, and Yemen.
The NSEERS program was heavily criticized by civil rights groups such as the ACLU, because it targeted immigrants from countries with predominantly Muslim populations. It should be noted, however, that NSEERS targeted individuals based solely on nationality, not on religion or other means. In 2011, DHS stopped using NSEERS by publishing a Notice in the Federal Register removing all countries from the list of those subject to the registration requirements. However, until December 23, 2016, the regulations providing DHS with the authority for special registration remained in place for potential future use.
Danielle M. Rizzo focuses on United States immigration and nationality law and on employment-based immigration. Danielle frequently represents foreign traders and investors seeking work authorization in the United States, as well as Canadian citizens seeking entry to the U. S. under the North American Free Trade Agreement (NAFTA).