New Jersey Lawyer News
The Department of Homeland Security (DHS) is removing regulations relating to an obsolete special registration program created after 9/11 to track noncitizen men from predominantly Muslim countries. NSEERS, which DHS has not used since 2011, has for many years been deemed redundant, used to capture data manually that was already captured through automated systems, nonetheless the structure has remained intact until now. The program has been discontinued, for these reasons and for reasons pertaining to NSEERS’ inability to provide a discernible public benefit, as the program no longer provides an increase in security in light of DHS’s evolving assessment of the threat posed to the United States by international terrorism.
In August 2002, less than a year after the September 11, 2001 terrorist attacks, the former Immigration and Naturalization Service (INS) finalized the proposed program to require designated nonimmigrants to be fingerprinted and photographed and to provide additional biographical information. The rule also authorized INS to designate certain ports of departure for nonimmigrants subject to the program. The following months, INS announced by way of a Federal Register notice, that the new program would be applied to those who were subject to the earlier registration program (first established in 1991)—nonimmigrants from Iraq, Iran, Libya, and Sudan—and added nonimmigrants from Syria. Between November 2002 and January 2003, INS added another 20 countries to the compliance list, bring the total to 25 countries.
Once the responsibility for administering NSEERS was transferred to the Department of Homeland Security (DHS) in 2003 as part of the Homeland Security Act of 2002, DHS determined that automatically requiring 30-day and annual re-registration for designated nonimmigrants was no longer necessary. Leading up to 2011, DHS began to utilize a more tailored system in which they would notify nonimmigrants subject to the program to appear for re-registration interviews where DHS deemed it necessary to determine whether they were complying with the conditions of their status and admission.
Information previously captured through NSEERS is now generally captured from nonimmigrants through other, more comprehensive and efficient systems. Below are three examples of how this is done in lieu of NSEERS:
· Visa Information: visa data is automatically vetted through various mechanisms through a joint coordination effort involving Customs and Border Protection, Immigration and Customs Enforcement, and the Department of State. This joint effort permits the relevant agency to take appropriate action, such as revoking visas or requiring additional scrutiny.
· Nonimmigrant Students: data on nonimmigrant students is now entered into the Student and Exchange Visitor Information System (SEVIS) by designated school officials at certified institutions and responsible officials in the Exchange Visitor Program. Customs and Border Protection officers at ports-of-entry can interface with SEVIS in real time to determine whether a student or exchange visitor has a current and valid certificate of eligibility to enter the United States.
· Visa Waiver Programs: the Electronic System for Travel Authorization (ESTA) now captures information used to determine the eligibility of visitors seeking to travel to the United States without a visa under the Visa Waiver Program (VWP). All travelers who intend to apply for entry under the VWP are now required to obtain an ESTA approval prior to boarding a carrier to travel by air or sear to the United States.
Ending NSEERS cannot prevent the Trump Administration from following through on its threats to create a Muslim registry; however, it does stop the next Administration from using the NSEERS framework without publishing a new regulation, although according to immigration officials, there is no need to repeat such obsolete programs, the objectives of which are now and for years have been carried out through more comprehensive systems.