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DOJ Announces Plan To Implement Entry-exit Registration System For Foreign Nationals From Certain Countries
by Parastou Hassouri

On June 5, 2002, the Department of Justice (“DOJ”) announced its plan to implement an “Entry-Exit Registration System,” that would enable the U.S. government to closely monitor the activities and whereabouts of foreign nationals holding non-immigrant visas.

The new system will require that individuals who, in the DOJ’s words, “potentially pose national security risks” to be fingerprinted and registered at all ports of entry. Subsequently, those individuals who remain in the United States beyond thirty days will be required to appear in person at an INS field office and register. At this point, they will be required to provide: (a) proof of tenancy at the Stated U.S. address; (b) proof of enrollment at educational institution (for students); and/or (c) proof of employment (for those who hold work visas). Thereafter, they will have to report to the field office at 12-month intervals until they depart the United States. The failure to register will result in that individual’s name being turned over to law enforcement. Additionally, the foreign national will be subject to a $1,000 fine, incarceration and possible removal from the United States. Individuals from designated countries subject to this special registration will also be told at the point of entry that they are required to inform the INS of any change of address within ten days of such a change. Individuals from the designated countries who are already present in the United States will be required to provide a current address to the INS and “furnish such additional information as the Attorney General may require.”

In addition, a “targeted category” of those individuals from the designated countries will be required to notify an INS agent of their departure from the U.S.A. at the exit ports. Such exit records are, according to the DOJ, necessary to identify and apprehend those who have overstayed their visas. The failure to report one’s exit would render that person ineligible to return to the United States.

The DOJ has presented two justifications for these new registration requirements. The first is that registration systems such as the one proposed exist in some European countries. The report then cites examples of registration systems from France, Germany, Great Britain, the Netherlands, Spain, and Switzerland. For instance, in France, foreigners must register within seven days. Those staying for an extended period must register with the local prefecture of the national police within one week of arriving in the country, every 12 months, and whenever they change addresses. The DOJ’s proposed initiative combines the European registration model with an entry-exit monitoring system.

In addition, the DOJ has explained that the authority of the Attorney General to register and monitor the entry and exit of foreign nationals already exists under the current law. The report cites section 262 of the Immigration and Nationality Act (“INA”), which states: “it shall be the duty of every alien now or hereafter in the United States, who is (1) fourteen years of age or older, (2) has not been registered and fingerprinted under section 221(b) of this Act of section 30 or 31 of the Alien Registration Act, 1940, and (3) remains in the United States for thirty days or longer, to apply for registration and to be fingerprinted before the expiration of such thirty days.” INA § 262(a). However, INA § 262(c) adds that the Attorney General may, in his discretion and on the basis of reciprocity pursuant to such regulations as he may prescribe, waive the requirement of fingerprinting specified in subsections (a) and (b) in the case of any non-immigrant.”

INA § 221(b), referred to above, states: “Each alien who applies for a visa shall be registered in connection with his application, and shall furnish copies of his photograph signed by him for such use as may be by regulations required. The requirements of this subsection may be waived in the discretion of the Secretary of State in the case of any alien who is within that class of nonimmigrants enumerated in sections 101(a)(15)(A) and 101(a)(15)(G) [pertaining to ambassadors, diplomats and employees of certain international organizations], or in the case of any alien who is granted a diplomatic visa on a diplomatic passport or on the equivalent thereof.”

INA § 263 grants the Attorney General the authority to prescribe special regulations and forms for the registration and fingerprinting of six other groups of foreign nationals, except those who have been admitted to the United States for permanent residence. They include crewmen, those under orders of removal, those confined in institutions, among others.

Concerning the forms and procedures with regard to registration, INA § 264(d) states that those individuals who have been registered and fingerprinted under the provisions of the INA or the Alien Registration Act of 1940 shall be issued a certificate of alien registration or an alien registration card. INA § 264(e), in turn, requires all individuals who have been registered pursuant to this section to carry with them at all times any certificate of alien registration or alien registration receipt card. The regulations in 8 C.F.R. § 264.1(b) describe what documents may constitute evidence of registration 1.

The provisions referred to above have not, generally, been enforced. In fact, for the most part, the registration and fingerprinting requirements have been waived. For example, the fingerprinting requirements have been waived for individuals from countries that do not impose a fingerprinting requirement on U.S. citizens who visit their countries. See 8 C.F.R. § 264.1(e).

However, pursuant to 8 C.F.R. § 264.1(f), the Attorney General has the authority to designate that non-immigrants from certain countries are required to be registered and fingerprinted upon arrival in the United States. He must do so by comprehensive public notice published in the Federal Register.

For instance, after the Iranian Revolution in 1979 and the Hostage Crisis, Iranian students in the United States were required to report for registration. Currently, nationals of Iran, Iraq, Sudan, and Libya are fingerprinted as they enter the United States.

The Attorney General has the authority to expand the list of designated countries through the publication of a Federal Register Notice. Therefore, presumably the proposed registration and fingerprinting of individuals from a list of “high risk” countries is simply an exercise of authority already granted to the Attorney General.

Although the designated countries have not been explicitly identified, according to various reports, they will most likely be visa holders from Middle Eastern and other Muslim nations. Arab-American groups have been distressed by the proposal, insisting that it is a clear example of racial and ethnic profiling. Other civil liberties groups and pro-immigrant lobbies have also objected to the proposal based on the fact that such close monitoring of individuals’ movements represents the actions one would expect of a police state. The proposal has also drawn criticism from the State Department, for the possibility that it would have diplomatic repercussions and alienate the United States’ allies in the Middle East who are needed in the fight against terrorism. Others have suggested that the proposal was meant to detract attention from the failures of the Federal Bureau of Investigations and the Central Intelligence Agency, both of which have recently been the focus of national attention, as reports in the press have suggested that both organizations received numerous tips about possible terrorist attacks before September 11.

1 Based on these provisions, it would appear that the only individuals required to carry evidence of registration are those who have been through the registration process. As the general practice has been to waive the registration and fingerprinting provisions, most non-immigrant visa holders presently in the United States are not obligated to carry such documentation. In an earlier article put forth on October 16, 2001, we stated that foreign nationals must carry proof of status at all times (See Non-Citizens Must Have Documents Verifying Their Status At All Times). However, that article was put forth, in part, in response to many reports we were receiving, in the immediate aftermath of September 11, that non-immigrant visa holders traveling both internationally and domestically had been questioned and asked to verify their status. Many people wondered whether the INS had any basis to require this. In light of a re-reading of the INA’s provisions, we believe that only those non-immigrants who have been registered are required to carry proof of registration. See INA §§ 264(d) and (e). Nevertheless, as the INS has broad powers to detain and arrest aliens without warrants (See 8 C.F.R. §§ 287.3 and 287.5), we felt that it was advisable to recommend that non-citizens carry proof of status, especially when traveling, to avoid potential problems with immigration officers and inspectors.

About The Author

Parastou Hassouri is an associate attorney at the Law Offices of Cyrus D. Mehta. She received her J.D. from the University of Pittsburgh School of Law in 1999. Prior to joining the firm, she served as a Judicial Law Clerk with the Executive Office for Immigration Review, New York City Immigration Court.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.