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We Have Ringside Seats To A Twelve-Round Fight: Remembering Special Registration

by Christopher W. Helt, Esq.

As immigration lawyers, we all have ringside seats to America’s War on Terrorism. The parallels with pugilism are apt. While many say that boxing is a mirror on life, it is actually more like a magnifying glass. In boxing, as in life, a fight usually has some basic ground rules. The ring provides boundaries for the combatants, but also allows the spectators to witness the full fury and pain of a match. The closer one moves to ringside, the deeper one’s understanding of the fight becomes. One learns to stay to the left of an opponent to avoid the power of a swift right hand, or to move in on a taller fighter. A watcher can learn the same lessons as a participant. Alertness, spacing and balance, testing one’s endurance, looking for weaknesses, and reacting to pain or masking it, are not only important in boxing, but also in life.  At ringside, one can see the eyes of the fighter rolling back when being hit squarely on the chin or temple.  One can witness the full fury of the punch even a boxer's legs after a blow-- once like jello -- regain strength to rise before the end of the eight-count.  A fighter who regains composure after an opponent's best blow commands not only respect, but also fear.

We recently witnessed the first round of a twelve-round fight. It is a fight amongst certain immigrant groups and those who believe our previous immigration laws threaten national security. This is a fight not picked by the mostly-Muslim immigrants living here. Initially resulting in the deportation of thousands of young males, mostly Muslim, and mostly innocent of any crime, the NSEERS program now has been scrapped, but both the current administration and certain segments of society would like nothing more than to reenact this Draconian treatment of aliens. As for the enemy combatant detainees, on March 3, 2006 the Pentagon released more than 5,000 pages of unedited transcripts to the Associated Press of at least 317 hearings at the U.S. military prison at Guantanamo Bay, Cuba[1].

This article reflects on the beginning rounds of this fight, examining the new ground rules and the criticisms of such laws. It examines the Constitutional basis for the new procedures, and demonstrates how similar events in history have come to be seen as atrocious violations of civil liberties, and finally, suggests arguments to use against registration procedures and special tribunals.

Anyone familiar with the literature of war knows that conflict often creates surreal situations, and that even the most justifiable campaign can produce absurd or amoral results. For example, during the climate of World War Two (a war which no serious historian questions the value of having fought), two controversial Supreme Court decisions were decided, each affecting immigrants. One of these decisions required citizens of Japanese descent to register with federal authorities and relocate to prison camps; another held that enemy combatants could be tried in extra-judicial proceedings. For most of recent history, very few people knew about these decisions – the trials became anecdotes and trivia. But the issues in these cases reared their heads again when the Bush administration required the registration of mostly Muslim aliens and set up procedure that could result in those individuals finding themselves subject to military tribunals. As we approach the third anniversary of the last of the mass “special registrations [2]” of these individuals, we are witnessing the precipitation of a legal fight soon to reach epic proportions.

“Special Registration” or “Special Humiliation”

In this fight, American policy makers and Muslim immigrants find themselves in opposite corners. The latter opponent is, for the time being, severely outmatched. A Chicago Tribune story published over two-years ago, three days long and running on the front page, detailed the horrors piled upon undeserving, innocent Muslims [3]. The only “crime” committed by these individuals was to have stayed in the land of freedom and opportunity longer than the government wished. The stated basis was for national security and the fight against terrorism. While technically a violation of the Immigration and Nationalization Service’s (INS, now merged into the Department of Homeland Security) regulations, in actuality, such overstays, for most of the Department’s history, were overlooked in this de facto policy. There was never an immigration policy for immigrants to come forward if they were out of status (unless it involved one for benefits, such as §245(i)). Clearly, it was not part of United States policy to destroy the lives of individuals while their green card applications were pending. The Los Angeles INS office did not foresee running out of plastic handcuffs – but then again, they had never used them en masse before. Nor has a child with cerebral palsy, or a mentally retarded and blind individual, been considered a risk to national security. These clients of mine, like many others, simply came to the United States in the hopes of finding medical treatment. After the attacks of September 11th, however, the rules changed.

These new rules should worry immigration lawyers. One program – now temporarily scrapped – required certain aliens to register with the INS. This program – the National Security Entry-Exit Registration System, or NEERS – applied only to mostly Muslims from twenty-three or so designated countries. As the first press release stated, special registration was designed to “monitor” certain immigrants for “national security” reasons. This is not the only time that author of the policy – Kris Kobach, a professor and former assistant to John Ashcroft – has tried to use the power of the law to discriminate against immigrants. He is currently lead counsel in a case in Kansas seeking to deny in-state tuition at public universities to certain classes of aliens. Indeed, in a November 2005 interview with Front Page Magazine, he bragged about how many aliens he had helped deport. [4]

As of 2003, when the “Special Registration” program was less than two-years old, the government deported more than fifteen percent of those who registered. Despite what individuals such as Professor Kobach would have us believe, many of these individuals worked in valuable fields such as medicine and engineering, and the only thing that nearly all of them wanted was the opportunity to create a better life for themselves and their families. Recognizing both the economic and emotional costs of the program, the United States no longer requires people from those countries to reregister every year, but it admits that it is keeping tabs on many of them. Foreign Affairs magazine noted in its May/June 2003 issue that the program tells “potential friends and supporters of the United States” that “they are no longer wanted in this country. The same article also noted that “[u]nintended consequences of the new visa screening requirements have included a massive decrease in the number of foreign students from Muslim states, scores of foreign faculty being unavailable to teach courses, scientific research projects becoming delayed or derailed, and businesses moving trade elsewhere.” [5]

There was one challenge to the law in the case of Capital Area Immigrants’ Rights Coalition v. U.S. Dept. of Justice, __ F.Supp.2d__ (D.D.C. May 21, 2003). The Court granted summary judgment to the government. But this case had more to do with administrative changes to the Board of Immigration Appeals than it did with the constitutional issues described shortly below. 

The first time the United States government required such massive registration and interment of people based on an ethnic class occurred during the Second World War. Smaller scale registration or exclusion from America had been enacted against the Chinese, and upheld as constitutional, in Chae Chan Ping v. U.S., 130 U.S. 581 (1889) and Fong Yue Ting v. U.S., 149 U.S. 698 (1893). After the attack on the American fleet at Pearl Harbor, anti-Japanese prejudice appeared in the public with an uncontrollable and unprecedented vigor. Even Earl Warren, then Attorney General of California, argued that every Japanese alien should be considered a potential spy. On February 19, 1942, President Roosevelt signed Executive Order 9066, which directed the War Department to “prescribe military areas from which any and all persons may be excluded, and with respect to which the right of any person to enter, remain in, or leave shall be subject to whatever restrictions the Commander might impose.” On May 3, Civilian Exclusion Order No. 34 was promulgated which removed all Japanese citizens in the Western United States to be removed to concentration camps. An individual named Fred Korematsu challenged this law, and the Court ruled against him. Korematsu v. U.S., 323 U.S. 214 (1944). The last paragraph of the opinion stated the reasoning:

It is said that we are dealing here with the case of imprisonment of a citizen in a concentration camp solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition toward the United States….To cast this case into outlines or racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue. To cast this case into outlines or racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue. Korematsu was not excluded…because of hostility to him and his race. He was excluded because we are at war…because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures, because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily, and finally, because Congress, reposing its confidence in this time of war in our military leaders – as inevitably it must – determined that they should have the power to do just this….We cannot – by availing ourselves of the calm perspective of hindsight – now say at that time these actions were unjustified.

In the entire course of the war, the government never found a single Japanese spy among those relocated. But that did not stop the government from committing similar violations of civil liberties in the future. While some courts are hesitant to invalidate the practice by the U.S. government, it is interesting to note that the precedent relied on in upholding such practices was made during a time with other regretful laws in existence.

The Year: 1952

The Immigration and Nationality Act of 1952 allowed the Attorney General to enact rules and regulations for the registration and fingerprinting of several classes of aliens, including immigrants who do not yet hold green cards. One should note the year of this law’s promulgation. It was the same year that many African-American individuals, even in the most liberal areas of the nation, could not sit at the same counters or in the same bus seats as other citizens and attended, under the force of law, separate schools. Homosexuality could result in a prison term. School prayer had not yet been outlawed by the Supreme Court. It was the time when Joseph McCarthy and Roy Cohn began to ride roughshod over the Constitution resulting in the destruction of countless lives. It was a year, in other words, now reviled for its countless disregard of civil liberties.

It was also the same year in which the Supreme Court, in Harisiades v. Shaughnessy, ruled that invidious discrimination by Congress against aliens was constitutionally permissible. 342 U.S. 580 (1952). The cold war was beginning, and a hot war was being fought on the Korean Peninsula. Within a month, the United States would begin nuclear testing in the Nevada desert, and shortly thereafter, Julius and Ethel Rosenberg – only the former of whom was actually guilty of giving secrets to Soviet Russia– would convulse and die in the electric chair. It was a year, in other words, where the paranoia of a foreign enemy is much like our own paranoia toward Islam. Keeping this in mind, the Court stated that while it had the power to subject such registration laws to judicial review, pragmatism declared that such review should not be taken. As Justice Jackson – who ironically dissented in Korematsu – wrote,

[i]t is pertinent to observe that any policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government. Such matters are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference.

Id. Justice Jackson then summarized the political sentiment of the time and the steps taken against aliens and noted that

Congress received evidence that…it would be easy for those of us who are taking Communism too seriously and overestimating its danger [to invalidate the law]…We, in our private opinions, need not concur in Congress’s policies to hold its enactments constitutionality. Judicially we must tolerate what personally we may regard as a legislative mistake.

Id. Thus while noting that a judge may have a personal aversion to a law – indeed, may find it constitutionally reprehensible – Jackson thought that he should not necessarily invalidate the statute. Yet he did not discuss the power of judicial review, even though judicial review had mainly been used at that point to invalidate laws which fly in the face of justice and are contrary to American ideals of fundamental fairness and equality. While correct in the conclusion that non-citizens have certain rights over citizens, Justice Jackson seemed to imply, in his opinion, that non-residents here volitionally do not want to become citizens and choose to do so to obtain some benefit, either actively or passively by not becoming Americans. This is far from the case with NEERS participants who appeared not only to comply with the law, but also wanted to be able to someday become Americans. Their only road to a green card and U.S. citizenship was to register. A “willful failure” to register, according to the law, would result in an automatic loss of further immigration benefits.

Normally such an act like the one in Harisiades would be invalidated by section one of the Fourteenth Amendment, which reads

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the Untied States and the State wherein they reside. No state shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

U.S. Const., Amend. IV. It is true that the first clause of this amendment refers only to citizens; but the due process and equal protection clauses specifically refer to “persons,” not just citizens. It is inconceivable that Congress accidentally chose to use “citizens” in one clause and “persons” in another; even the most conservative legal scholar would argue that the text of this constitutional provision needs to be given priority over what we would like the text to imply or mean. But the Fourteenth Amendment, at the time of Harisiades, applied only to actions by state governments, not by the federal legislature.

In 1954, though, the Supreme Court held that the principles of the Fourteenth Amendment also applied to the national government. Writing an opinion desegregating schools in the District of Columbia, the Court held that

The Fifth Amendment, which is applicable in the District of Columbia, does not contain an equal protection clause as does the Fourteenth Amendment which applies only to the states. But the concepts of equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive. The “equal protection of the laws” is a more explicit safeguard of prohibited unfairness than “due process of law,” and, therefore, we do not imply that the two are always interchangeable. But, as this Court has recognized, discrimination may be so unjustifiable as to be violative of due process….Although the Court has not assumed to define “liberty” with any great precision, that term is not confined to mere freedom from bodily restraint. Liberty under law extends to the full range of conduct which the individual is fee to pursue, and it cannot be restricted except for a proper governmental objective….In view of our decision that the Constitution prohibits the states from maintaining racially segregated public schools, it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government.

Bolling v. Sharpe, 347 U.S. 497 (1952). In other words, just as the Fourteenth Amendment applies the Bill of Rights to limit the actions of state governements, the Fifth Amendment applies the Fourteenth to similar situations involving the federal government. The Court relied on this reasoning in subsequent cases such as Adarand Constructors v. Pena, when Justice O’Connor, writing for the majority, noted that “Bolling’s facts concerned school desegregation, but it’s reasoning was not so limited. The Court’s…imposition on the Federal Government of an obligation equivalent to that of the States, followed as a matter of course.” 515 U.S. 200 (1995). 

Bolling has also been used to specifically prohibit discrimination against aliens. The Court used Bolling’s arguments to strike down a federal law barring aliens from applying for civil service jobs in Hampton v. Mow Sun Wong, 426 U.S. 88 (1976). The Court denied that

the federal power over aliens is so plenary that any agent of the National Government may arbitrarily subject all resident aliens to different substantive rules from those applied to citizens….Indeed, we deal with a rule which deprives a discrete class of persons of an interest in liberty on a wholesale basis. By reason of the Fifth Amendment, such a deprivation must be accompanied by due process.

Savvy practitioners, however, should be cautious in relying too much on Bolling; it has been criticized as having little ground in the text of the Constitution. See, e.g. Robert Bork, The Tempting of America: The Political Seduction of the Law 83 (1990); Hans Linde, “Judges, Critics, and the Realist Tradition,” 82 Yale L.J. 227, 233-34 (1972).

Plenary Powers, Future Registration Programs and Tribunals

The case law specifically relating to alien registration, then, offers little hope to the immigration practitioner with Muslim clients. But as noted above, there are substantial subsequent cases dealing with the Fourteenth Amendment which provide solid fodder for our cases.

There is also a powerful structural argument, soundly grounded in the Constitution and the idea of a government of limited and enumerated powers. Ironically, it is an argument based on conservative canons of construction – the weakness of implied powers and the strict separation of the political branches – which may now be used for a cause which the media has termed liberal. In reality, though, this cause transcends political boundaries; it is not a question of left or right, but rather right or wrong. For example, in his dissent in Harisiades, Justice Black noted that:

[t]he power of Congress to exclude, admit, or deport aliens flows from sovereignty itself and from the power ‘To establish a uniform Rule of Naturalization.’ U.S. Const., Art. I., §8, cl. 4. The power of deportation is therefore an implied one. The right to life and liberty is an express one. Why this implied power should be given priority over the express guarantee of the Fifth Amendment has never been satisfactorily answered.

Harisiades, supra at 3 (J. Douglas dissent.) 

Indeed, the Rehnquist Court severely limited Congress’s plenary power in such cases as U.S. v. Lopez, 514 U.S. 549 (1995) and U.S. v. Morrison, 529 U.S. 598 (2000). The Fourth Circuit took a similar tact in Brzonkala v. Virginia Polytechnic Inst. & State Univ., 169 F.3d 820 (4th Cir. 1999). These cases can be read for the proposition that what have been traditionally – at least since the New Deal –considered plenary powers of Congress are actually powers reserved to the states or the people as a whole. If true, then, an immigration lawyer may attempt to use the Fourteenth Amendment’s equal protection clause in his client’s case. Justice Douglas, again in his dissent, noted this limit on plenary powers, which were not granted to the federal government, but rather, reserved to the people:

The expulsion of a race may be within the inherent powers of despotism. History, before the adoption of this Constitution, was not destitute of examples of the exercise of such a power; and its framers were familiar with history, and wisely, as it seems to me, they gave the government no general power to banish. Banishment may be resorted to as punishment for a crime; but among the powers reserved to the people and not delegated to the government is that of determining whether whole classes in our midst shall, for no crime but that of their race or birthplace, be driven from our territory.

Harisiades, supra at 3 (J. Douglas dissent) (citing Fong Yue Ting, supra at 2).

The second major flaw in the government’s anti-immigration efforts is that much of the discrimination against immigrants is not authorized by Congress, but solely by an executive order. This issue has come up during wartime, and the Supreme Court held that the President may not act unilaterally. In Youngstown Sheet & Tube Co. v. Sawyer, the Court had to rule on whether, during the wartime, the President could unilaterally challenge portions of the Constitution on grounds of national security. 343 U.S. 579 (1952). President Truman attempted to break a strike at a steel mill with the justification that the steel was needed for the Korean War effort. In a number of separate opinions, the Court rebuked the Executive Branch. Three opinions made up the majority. Justice Black held that the President has not inherent powers, and may only act according to express constitutional or statutory authority. Justice Douglas held that the President has inherent authority, but only if he does not interfere with the proper functions of Congress or the Judiciary. Lastly, Justice Jackson, in the most famous and important of the decisions, held that there are three levels of presidential power: when the president acts according to express or implied authorization of Congress his power is at a maximum; when he acts in the absence of either a congressional grant or denial of authority, his power is in a twilight zone; lastly, when the president acts contrary to the express will or implied will of Congress, his power is minimal.

Under the rubric offered by Black and Douglas, President Bush’s actions in setting up the tribunals is clearly unconstitutional; the power of creating courts and jurisdictions is clearly vested by Article I in the Constitution. Similarly, since the President did not consult Congress, and much of the legislature has criticized the tribunals, Jackson’s theory would also have the acts deemed unconstitutional. 

Guantanamo Bay

In January 2002, the United States opens the prison at Guantanamo Bay, Cuba.. Most of the men now there were captured in 2001 during the U.S.-led war that drove the Taliban from power in Afghanistan. The second new rule, allowing the Secretary of Defense to establish military tribunals to detain and try any individual suspected of aiding or abetting in terrorist activities is put into effect. Mere suspicion is enough to cause one to appear before these tribunals – and unfortunately, as we are learning everyday, simply being a Muslim may be enough, in some eyes, to create such a suspicion. These special courts have relaxed rules of evidence and criminal procedure, allowing for the conviction of individuals who would be acquitted in an ordinary court of law. There are no grand juries, Article III judges, or a right to a public trial. These courts have exclusive jurisdiction, and the only appeal process is directly to the President. He has yet to publicly grant such an appeal.

Perhaps the greatest threat to the sentiments voiced by Justice Douglas in Harisiades, though are the military tribunals created in the months after September 11th. With the promulgation of an executive order entitled “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism,” President Bush authorized the Secreatary of Defense to create extra-judicial courts. [6] This order allows for the establishment of courts, allowed to sit at any “time or place” and try an individual that the President determines “has engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefore, that have caused, threaten to cause, or have as their aim to cause, injury to or adverse effects on the United States, it citizens, national security, foreign policy, or economy.” The rules of procedure for these tribunals are much more lax than those governing normal courtrooms; standards of criminal procedure and evidence are greatly relaxed, there is no requirement of a grand jury, the military officers running the tribunals – as both triers of fact and law – need not have any sort of legal or judicial experience, and, lastly, the tribunals may be held in secret.

In the aftermath of the Civil War, the federal government tried to establish the exact same sort of military trials. In 1866, a group of men were arrested in Indiana for conspiring to commit acts of terror against the Governor of that state, in addition to other allegations. The military tried to create a special commission to try the prisoners, but the Supreme Court granted the defendants habeas petition and held that such a tribunal clearly violated the Constitution. Justice Davis, writing the majority opinion, noted that

Martial rule can never exist where the courts are open, and in the proper and unobstructed exercise of the their jurisdiction. It is also confined to the locality of actual war. Because, during the late Rebellion it [the tribunal] could have been enforced in Virginia, where the national authority was overturned and the courts driven out, it does not follow that it should obtain in Indiana, where that authority was never disputed, and justice was always administered. And so in the case of a foreign invasion, martial rule may become a necessity in one state, when, in another, it would be ‘mere lawless violence’… One of the plainest constitutional provisions was, therefore, infringed when [plaintiff] Milligan was tried by a court not ordained and established by Congress, and no composed of judges appointed during good behavior.

Ex Parte Milligan, 71 U.S. (1 Wall.) 2 (1866). 

This opinion could apply with equal force to the situation of the prisoners in Guantonemo Bay: no full-scale war has occurred on United States soil, nor on the stretch of Cuba holding the prison. Our courts are still functioning with full effectiveness, and there is no justification for our nation to hold military tribunals. The mere concept is a constitutional anathema.

Supporters of the military tribunals often rely on a case involving Nazi saboteurs, known as Ex Parte Quirin, 317 U.S. 1 (1942). During the first year of the United States participation in World War II, eight of these saboteurs alit aground at Long Island and Florida, having been ushered to their destinations by submarine. It is believed to be the first time ever that “enemy combatants” have touched U.S. soil. Once aground, they buried their uniforms, gathered their provisions and weapons, and attempted to infiltrate American society. One of the “spies”, however, turned himself in, and helped the FBI round up the others. President Roosevelt issued an executive order authorizing a military tribunal for the saboteurs, and the Supreme Court upheld the constitutionality of the order, focusing on the fact that the Germans were “unlawful combatants.” It was this categorization which allowed them to distinguish the decision from their earlier opinion in Ex Parte Milligan. This terminology probably relates to George W. Bush’s consistent use of the phrase “enemy combatants” instead of “prisoners of war.”

Immigrants As ‘Enemy Combatants’

If military tribunals are established for immigrants, however, Ex Parte Quirin will apply less than Ex Parte Milligan. Most of our clients are already in the United States, and, unlike the Nazi saboteurs, would not admit to any supposed guilt or wrongdoing. Still, President Bush’s executive order raises a number of disturbing questions and possible scenarios that immigration practitioners – indeed that any individual concerned with civil liberties – need be aware of:

  1. Does the executive order allow for the indefinite detention of citizens and those becoming citizens accused of being enemy combatants?
  2. Does the executive order differentiate between supposed acts committed within the United States and those that occurred overseas?
  3. Most importantly, we need to note that Quirin occurred during an officially declared war. As of now, no declaration of war has been passed by Congress in any sort of conflict related to the war on terror. As such, we should be prepared to seize on the fact that as of now, and for the foreseeable future, no official state of war exists. Therefore, the portion of the Quirin opinion above takes on a new urgency and importance.

   These issues are still being debated in the legal academy, and unfortunately, it is too early to say how they will ultimately be resolved; it us up to us and our clients to insure that civil liberties trump fear and dogmatism.

Conclusion and Suggestions for Further Reading

When a previous generation of immigrants arrived in this nation, the first thing they saw was the Statute of Liberty with its inscription entreating the world to “Give me your tired, your poor/ Your huddled masses yearning to breathe free/ the wretched refuse of your teeming shore…” Recent policies make us feel ashamed of these words and this promise. Instead today immigrants must be prepared for a fight-deflecting innuendo, parrying punches, and bobbing and weaving through a morass of conflicting immigration laws. Thankfully, the NSEERS Special Registration program has been suspended – for now. But as we approach the third anniversary this month of the program’s last round of special registration, (officially ending December 3, 2003) immigration attorneys should keep in mind the lessons of the cases and prepare for the next round. We owe such preparation to the families whose cars were towed out of INS parking lots during registration, those who had to be fingerprinted and interrogated, and those who had to divulge personal financial information. The issue of special registration has only been suspended. Special Registration has only suffered a standing-eight count. It can come back like a left hook, with as much surprise as the first time. There was only the judicial challenge in California that was dismissed before reaching most of the merits. The fight over immigration in the U.S. has reached new levels, as we all know. We have witnessed the dawn of a new era in immigration law. Practitioners should be vigilant to examine the possibility of using the arguments above to challenge the program again, if it insidiously returns.

The following books and articles may be of additional help to practitioners:

David Cole and James X. Dempsey, Terrorism and the Constitution: Sacrificing Civil Liberties in the Name of National Security (New York: 2002)

Danny Goldberg, It’s A Free Country: Personal Freedom in America After September 11 (New York: 2002)

Neal K. Katyal and Laurence Tribe, “Waging War, Deciding Guilt: Trying the Military Tribunals,” 111 Yale L.J. 1259 (2002)

Stanley A. Renshon, The 50% American: Immigration and National Identity in an Age of Terror (Georgetown: 2005)


Endnotes

1 Associated Press release, March 3, 2006.

2 On October 6, 2001, the USA Patriot Act was signed into law, in which Congress requires that DOJ develop an entry-exit tracking system by 2005, to monitor the whereabouts of all non-immigrant aliens entering the US. On June 6, 2002, at a press conference, Attorney General Ashcroft announced the forthcoming implementation of the National Security Entry-Exit Registration System (NSEERS), the first phase in the entry-exit tracking system mandated by Congress. “Special Registration” consisted of three components:

  1. fingerprinting & photographing at U.S. POEs;
  2. periodic registration of non-immigrant aliens who stay in US 30 days or more; and
  3. “exit controls” to help INS remove aliens who overstay their visas.

On June 13, 2002, the NSEERS Proposed Rule is published [67 FR 40581]. On August 12, 2002, the NSEERS Final Rule is published [67 FR 52584]. Special Registration applied only to certain targeted individuals among the 35 million non-immigrant aliens.

3 Chicago Tribune. “TOSSED OUT OF AMERICA: Immigration crackdown shatters Muslims' lives.” By Cam Simpson, Flynn McRoberts and Liz Sly. November 16, 2003. 

4 Jamie Glazov, “Safeguarding the Border,” Front Page Magazine, March 12, 2006.

5 John N. Paden and Peter W. Singer, “America Slams the Door (On Its Foot): Washington’s Destructive New Visa Policies,” Foreign Affairs, May/June 2003.

6 The Executive Order may be found at 66 Fed. Reg. 57,833 (Nov. 13, 2001).


About The Author

Christopher W. Helt, Esq. is an immigration attorney concentrating in deportation defense, asylum-refugee law and federal litigation practicing in Chicago, Atlanta, and Memphis. He has been twice qualified in federal district court as an expert in asylum-related issues, and speaks frequently in Chicago and Atlanta. He is also a USA registered amateur boxer, having fought in boxing tournaments at Trump 29 Casino, the Chicago Golden Gloves, the legendary Gleason’s Gym in NYC, and is the former fight club Chicago super-welterweight title belt champion, a USA-boxing sanctioned event.


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


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