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Special Registration Modified, But Not Ended

by Cyrus D. Mehta

On December 2, 2003, the Immigration and Custom Enforcement Office (ICE) of the Department of Homeland Security (DHS) promulgated a regulation that would suspend the Special Registration re-registration requirements (also known as NSEERS). The new rule amends the provision of 8 C.F.R. §§ 264.1(f)(3) and 264.1(f)(5), which required 30-day re-registration for those specially registered at a Port of Entry (POE) and annual re-registration for all who are subject to special registration.

In lieu of the re-registration requirements, the interim rule would give the DHS discretion to re-register a person who was previously registered upon providing 10 days notice. Notification may be provided by such means as publication in the Federal Register, a letter sent by standard US postal mail or regular mail to the last address provided by the foreign national to the DHS or an e-mail to the address provided by the foreign national or in-person delivery.

Persons subject to call-in or POE Special Registration still must register their departure. The interim rule also provides that a person subject to departure can apply for relief from departure registration requirements. The registrant may, prior to departure, seek relief from the U.S. Customs and Border Protection (CBP) field office director for the port from which the alien intends to depart. The registrant must show that “exigent or unusual circumstances exist” and that a favorable exercise of discretion is warranted.

The interim rule also provides that a person who makes frequent trips to the US may be exempted from future POE and departure registrations upon a showing of “good cause, exigent or unusual circumstances.” The applicant applies for this exemption to the CBP field office director over the port through which the foreign national most frequently arrives in the US. Factors to be considered include the “mode of travel, business and economic concerns, purpose of travel, or other factors as determined by the director.” Those granted exemption from POE registrations will also be exempt from the departure control requirements.

If the non-citizen fails to register prior to departure, he or she will be presumed inadmissible to the US. The interim rule provides that the presumption of inadmissibility may be overcome by establishing that the registrant “does not seek to enter the United States to engage solely, principally, or incidentally in any unlawfully activity.”

If a nonimmigrant failed to register his or her departure, the rule indicates that the individual may apply to a consular officer at the time of an application for a new nonimmigrant visa for a good cause exception for failure to comply with departure requirements. The interim rule indicates that the inspecting officer at the POE is not bound by a consular officer’s finding that good cause is established, or that the individual is not inadmissible under INA § 212(a)(3)(A)(ii). Nevertheless, the interim rule provides that the inspecting officer will find the consular officer's determination to be a "significantly favorable factor" in determining whether the individual is inadmissible due to the prior failure to register at the time of departure.

The interim rule interestingly provides that a foreign national may also seek an exemption from NSEERS registration requirements from the DOS pursuant to rules that the DOS may promulgate in this regard.

Finally, the rule provides that a student subjected to the SEVIS program who submits a notification to the DHS of a change of address or educational institution through SEVIS, will serve as notice for the purposes of the NSEERS program. Requirements that other Special Registrants notify DHS of changes of address, employment, or school within 10 days remain in place.

Although press articles, prior to the promulgation of this interim rule, indicated that the Special Registration program has ended, this is not the case. The Special Registration program has been severely criticized by immigrant rights advocacy organizations and the press for failing to achieve its objective, namely enhancing this country’s security against terrorist attacks. No one who registered has been charged for any terrorist related crimes to date. It is unlikely that a real terrorist will be willing to comply with the complex procedures set forth in the Special Registration program. Moreover, the Special Registration program profiles people who either arrive or have arrived as nonimmigrants and only applies to males. Since 9/11, we have seen US citizens being charged with terrorism related crimes as well as nationals of other countries not subject to Special Registration. The Special Registration program, instead of gaining the cooperation of immigrants against war on terrorism, has only alienated immigrant communities as it merely profiles citizens or nationals of countries with Islamic populations.

We reproduce below a joint advisory from the American Immigration Lawyers Association (AILA) and ACLU Immigrants’ Rights Project further indicating that Special Registration has not ended and many requirements still continue. Those subject to Special Registration should read this advisory carefully.

Although the interim rule took effect on December 2, 2003, the public is encouraged to submit written comments concerning this rule on or before February 2, 2004.

Interim Special Registration Rule

AILA/ACLU Advisory

About The Author

Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, practices immigration law in New York City. He is First Vice Chair of the American Immigration Law Foundation and recipient of the 1997 Joseph Minsky Young Lawyers Award. He is also Chair of the Immigration and Nationality Law Committee of the Association of the Bar of the City of New York. He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted at 212-425-0555 or

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