DOJ Proposes Rules to Monitor Certain Nonimmigrants

IMMIGRATION LAW & POLICY

Arrest and Detention

DOJ PROPOSES RULES TO MONITOR CERTAIN NONIMMIGRANTS
Immigrants' Rights Update, Web Edition, July 15, 2002

Citing weaknesses in Immigration and Naturalization Service procedures that have resulted in the agency's failure to keep track of the whereabouts of nonimmigrants (i.e., non-U.S. citizens admitted to the United States for a specific purpose, and generally on a temporary basis), the U.S. Justice Dept. has issued proposed rules that would require nonimmigrants from designated countries, and other nonimmigrants designated by consular and immigration officials, to be registered, photographed, fingerprinted, and subjected to further monitoring.

The names of the countries whose nationals will be subject to the new rules will be posted in the Federal Register. In addition, nonimmigrants whom inspection officers at ports of entry or consular officers abroad determine pose potential security risks that require closer monitoring will be subject to the new rules.

Congress first authorized nonimmigrant registration requirements in the Immigration and Nationality Act of 1952. Though this law has been used only rarely, now is not the first time it has been invoked. For example, in 1979, during the crisis in which Iranians took over the U.S. embassy in Teheran and held members of the staff hostage, Iranian nationals who were in the U.S. as students were required to register with the government. In addition, since the 1990s the INS has imposed registration and reporting requirements on nonimmigrants from Iran, Iraq, Libya, and Sudan. The proposed rule would impose more comprehensive registration and monitoring requirements and extend these requirements to designated nonimmigrants from other countries.

In a press statement announcing the proposed registration and reporting requirements, the Justice Dept. characterized the measure as a strengthening of the "Entry-Exit Registration System." Section 110 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) mandated the establishment of an automated entry/exit control system to track records of departure and identify nonimmigrants who overstayed their visas. However, legislation subsequently delayed implementation of that mandate. Both the USA PATRIOT and Border Security Acts include measures requiring the INS to develop a fully integrated data system that tracks the issuance of visas and the entry and exit of nonimmigrants.

To Whom Will the New Rules Apply? In consultation with the U.S. secretary of State, the attorney general will post a notice in the Federal Register designating certain countries as ones whose natives or citizens are subject to the new rules. Diplomats will be exempt from the new procedures, and the attorney general may designate other classes of nonimmigrants or individuals to be exempted as well.

Also subject to the registration rules will be:

any nonimmigrant whom a consular or inspecting officer has reason to believe is a native or citizen of a country designated by the attorney general, and
any nonimmigrant who meets certain criteria, or whom a consular officer or inspecting officer has reason to believe meets such criteria, indicating that the individual warrants monitoring due to the national security interests (as defined in INA section 219) or law enforcement interests of the U.S. The attorney general or secretary of State must determine what these criteria are.

In addition, the attorney general may require nonimmigrants from certain countries to register with the INS even if they have already been admitted to the U.S. or are already present here. The attorney general would announce such a requirement by publishing a notice in the Federal Register.

How Will the New Procedures Work? Any nonimmigrant subject to the new registration requirements who applies to be admitted to the U.S. would have to register and be fingerprinted and photographed at the port of entry. The INS would have to notify such individuals that if they remain in the U.S. for 30 days or more, they must present themselves at an INS office to provide additional documentation confirming that they are complying with the requirements of their visa. They would have to report to an INS office within 30 to 40 days after the date they were admitted and confirm their residence and employment and/or enrollment in an approved school.

Nonimmigrants subject to the new procedures would be required to reregister annually and present evidence to confirm that they remained in compliance with the requirements of their visa. Individuals would be required to present themselves within 10 days of their original anniversary of admission to the U.S.

In addition, any nonimmigrant subject to the special registration who remained in the U.S. for 30 days or more would be required, within 10 days of changing his or her address or employment, or of enrolling in a different educational institution, to notify the INS of the change by mail. Currently, all nonimmigrants are required to notify the INS when they change their address. Under the proposed rule, nonimmigrants subject to special registration who fail to comply with registration requirements are considered to have violated their status.

An individual would be allowed to apply to the district director or other designated officer for relief from the registration requirements. The supplementary information to the proposed rule states that individuals might obtain relief upon showing that due to exigent or unusual circumstances they could not reasonably fulfill the requirements. However, the district director's decision regarding an application for relief would be final and could not be appealed.

Under the proposed rule, when a nonimmigrant leaves the U.S., he or she would be required to report to an INS departure control officer at the port of entry specified by the INS, in order to confirm the individual's departure. The INS is limiting the ports of entry through which nonimmigrants subject to special reporting requirements may depart the country because the agency needs to develop facilities at airports and other ports of entry to ensure departure control. A nonimmigrant who fails to comply with this requirement would be presumed to be inadmissible if he or she later sought to enter the U.S. Such a presumption could be overcome by a showing that the individual satisfied the registration requirements.

The supplementary information to the proposed rule states that, under INA section 266, a willful failure to register or the making of false statements upon registration is punishable by a fine of up to $1,000 or imprisonment for up to 6 months. Providing a false statement would also subject the nonimmigrant to detention and removal. The supplementary information also notes that immigrants as well as nonimmigrants in the U.S. are required to notify the INS of a change of address within 10 days of the change, and failure to comply with this requirement is punishable under INA section 266(b) by a fine of up to $200 and imprisonment for 30 days. Persons guilty of these offenses are also subject to removal.

When he first announced the new procedures on June 6, Attorney General John Ashcroft stated that the government would enter the names of individuals who fail to comply with the registration requirements or who overstay their visas into the National Crime Information Center database. Persons whose names appear in that database may be detained by state and local law enforcement officers if the named persons are stopped for traffic violations or other reasons. On that occasion, Ashcroft said that he believes state and local law enforcement officers have inherent authority to enforce civil immigration laws, a position that is at odds with the policies of most state and local law enforcement agencies across the country.

67 Fed. Reg. 40,581-86 (Jun. 13, 2002).