DOJ Issues Final Rule on Registration of Nonimmigrants

IMMIGRATION LAW & POLICY

Removal Procedures and Defenses

DOJ ISSUES FINAL RULE ON REGISTRATION OF NONIMMIGRANTS
Immigrants' Rights Update, Vol. 16, No. 5, September 10, 2002

The U.S. Dept. of Justice has issued a final rule requiring nonimmigrants from certain countries and other nonimmigrants designated by consular and immigration officials, to be registered, photographed, fingerprinted and subject to further monitoring upon entry into and departure from the United States. With a few exceptions, the final rule implements the provisions of the proposed rule that was announced on June 13, 2002 (see "DOJ Proposes Rules to Monitor Certain Nonimmigrants," Immigrants' Rights Update, July 29, 2002, p. 2). After a brief comment period, the Justice Dept. issued a final rule that will be effective Sept. 11, 2002, except for the provision of the rule requiring registration of departure, which does not take effect until Oct. 1, 2002.

With a few exceptions, the final rule is substantially the same as the proposed rule. The final rule incorporates two significant changes:

• The rule will not apply to nonimmigrants who are already in the U.S. The proposed rule had stated that the attorney general may require nonimmigrants from certain countries to register with the Immigration and Naturalization Service even if they are already in the U.S., but the final rule does not apply registration requirements to nonimmigrants who are already here. Accordingly, as noted in the supplementary material adopted as part of the final rule, if the attorney general requires such persons to register, he will post a notice of the requirement in the Federal Register.

• Nonimmigrants required to report will not be required to depart via the same port they entered. The proposed rule stated that anyone who was required to report under this new system would need to depart from certain designated airports. This restriction was dropped from the final rule.

As noted in the July 29, 2002, IRU article about the proposed regulation, the new rule will be imposed on nonimmigrants from certain countries. The rule will also be applied to nonimmigrants from other countries who meet particular criteria. Citing security concerns, the final rule is silent about what those criteria are, exactly.

In like manner, the rule does not address the entry of names into the National Crime Information Center database. The supplement to the proposed rule informed the public that the names of individuals who failed to register or who overstayed their visas would be entered into the database. Although the DOJ disclosed that it received comments on this announcement, it stated that inclusion of data in the NCIC database is not covered by the final rule. It therefore refused to address the public's concerns regarding the database.

The rule has been greeted by a chorus of criticism from around the world, especially from Muslim countries, where it is assumed that the majority of those who will be affected will be Muslims. The Los Angeles Times, in an article titled "Anti-Terror Screening Draws Fire" (Sept. 5, 2002), reports that there is concern in the U.S. State Dept. that the rule will drive another wedge between the U.S. and the countries from which the Bush administration is seeking cooperation in its antiterrorism efforts. The rule may also have ramifications for the already reeling U.S. economy. According to the article, "There . . . are growing concerns that tougher scrutiny of thousands of foreign visitors, if not performed quickly and discreetly, could depress tourism, trade and business."

67 Fed. Reg. 52,584 (Aug. 12, 2002).