The NSEERS Effect:
A Decade of Racial
Profiling, Fear, and Secrecy
May 2012

Table of Contents

TABLE OF CONTENTS

					

				

About The Authors												

1Acknowledgements												

2Executive Summary														Introduction													

4The NSEERS Legal Framework										

14Policy Impact: NSEERS is Still in Effect											Racial Profiling 												

19		Impact on Families and Communities 											Lack of Transparency											

23Misuse of Data												

29NSEERS Is Easy to Resurrect 										

30Failure to Meet Program Objectives 									

31Postscript													

32Policy Recommendations			

34							

9

20

26

APPENDIX 											Glossary													

36Endnotes													

37About the Authors
Rights Working Group
Rights Working Group (RWG) formed in the aftermath of September 11th to promote
and protect the human rights of all people in the United States. A coalition of morethan 330 local, state, and national organizations, RWG works collaboratively to
advocate for the civil liberties and human rights of everyone regardless of race,
ethnicity, religion, national origin, citizenship, or immigration status. RWG has
advocated for the full termination of NSEERS since the program’s inception.
Center for Immigrants’ Rights, Pennsylvania State University’s Dickinson
School of Law
The Center for Immigrants’ Rights is an immigration policy clinic at Penn State’s
Dickinson School of Law. At the Center, students produce practitioner toolkits, reports,
and primers of national impact on behalf of client organizations. Working in teams,
students build professional relationships with government and nongovernmental
policymakers, academics, individual clients, and others. In 2009, the Center produced
an analysis of the National Security Entry-Exit Registration System (NSEERS) for theAmerican-Arab Anti-Discrimination Committee (ADC), which this current report builds
on.

1Acknowledgments
This report was prepared by students Mohita Anand and Constantin Schreiber as part of thePennsylvania State University’s Dickinson School of Law’s Center for Immigrants’ Rights, under thesupervision of Shoba Sivaprasad Wadhia and on behalf of the Rights Working Group. The report wasreviewed and edited by the following individuals: Sameera Hafiz, Jumana Musa, Aadika Singh, and Shoba
Sivaprasad Wadhia.

Rights Working Group (RWG) and Penn State Law’s Center for Immigrants’ Rights (CIR) are
enormously grateful to the following individuals and organizations for their contributions asinterviewees to this report.
Seth-Kaper Dale, Reverend at the Reformed Church of Highland Park, NJ
Reverend Seth-Kaper Dale (Pastor Seth) has been serving as a Reverend at theReformed Church of Highland Park, New Jersey since 2001. Throughout his ministry,he has helped promote interfaith dialogue amongst the different communities. He has
become an integral component in advising and assisting the Indonesian community
with NSEERS. 1
Mirwan Harahap, individual affected by NSEERS
Mirwan Harahap faced religious harassment in his home country of Indonesia and thus
fled to the United States on a tourist visa in 1997. He lived in Metuchen, New Jersey
and worked for a car service company as a dispatcher. Around 2002, he complied with
the NSEERS registration requirements. He was later deported in February 2009 and
was forced to leave his child and wife behind. He currently lives in Jakarta, Indonesia. 2
Denyse Sabagh, Esq., Head of Immigration Practice Group, Duane Morris LLP
Denyse Sabagh serves as a partner at Duane Morris and heads the firm’s Immigration
Practice Group. Ms. Sabagh is the former national president and the general counsel ofthe American Immigration Lawyers Association. In 2010, Human Resource Executive
magazine named her one of their top 15 immigration lawyers. She is listed in
Chambers Global and Chambers USA: America’s Leading Business Lawyers for 2006
through 2011. She was also awarded the first Rose Bouzaine Nader Award by theAmerican-Arab Anti-Discrimination Committee in June 2006 to honor her civic courage,organizing skills, and in advancing the just society with its pursuit of happiness,creativity, and foresight. 3

2

James Zogby, President and Founder of the Arab American Institute Dr. James Zogby
is the founder and president of the Arab American Institute (AAI), an organization
focused on political and policy research for the Arab American community. Since 1986,
Dr. Zogby has led Arab American efforts through the AAI for political empowerment in
the United States, such as voter registration, education, and mobilization. Dr. Zogby
has been involved in numerous Arab American issues. In the late 1970s, heco-founded and held a position of a chairman of the Palestine Human Rights Campaign
and later served as the Co-Founder and Executive Director of the American-Arab
Anti-Discrimination Committee. 4
In addition to the contributors listed above, the authors of the report also interviewed otherindividuals knowledgeable about NSEERS who prefer to remain anonymous. Some of them havebeen quoted here, while others have only informed the content of the report.

3

Executive Summary
In the wake of the tragic attacks of September 11, 2001, the landscape of immigration law
and policy in the United States changed dramatically as the government scrambled to create
counterterrorism programs to respond to potential national security threats. Many of thesepolicies relied on discriminatory profiling of individuals from countries with predominantly Muslim
populations and were based on the false assumption that people of a particular religion or
nationality have a greater propensity for committing terrorism-related crimes. One of the mostprominent of these programs is the National Security Entry-Exit Registration System (NSEERS) or“special registration” that was initiated by the Department of Justice (DOJ) in 2002 and inherited by
the Department of Homeland Security (DHS) in 2003.
NSEERS served as a tool that allowed the government to systematically target Arabs, Middle
Easterners, Muslims, and South Asians from designated countries for enhanced scrutiny. The mostcontroversial piece of NSEERS required nonimmigrant males who were 16 years of age and older
from 25 specific countries to register at local immigration offices for fingerprinting, photographs, andlengthy, invasive interrogations. Generally, the term “nonimmigrants” refers to individuals who areseeking admission to the United States temporarily for purposes of education, employment, pleasure,etc. Other than North Korea, each of the listed countries has predominantly Muslim populations.5
Many individuals were deported through secret proceedings that took place without due process oflaw. The specifics of NSEERS reveal it to be a clear example of discriminatory and arbitrary racial
profiling. More than 80,000 men underwent call-in registration and thousands were subjected tointerrogations and detention, wasting taxpayer dollars through this counterproductive response to
September 11th which has not resulted in a single known terrorism-related conviction.
From its inception, NSEERS elicited a strong negative response from Arab, Middle Eastern,
Muslim, and South Asian communities in the United States. For a decade, advocacy organizations
including Rights Working Group, 6 immigration lawyers and the private bar, 7 policy analysts, 8 andpoliticians 9 have spoken out against the discriminatory and ineffective program and called for its fulltermination. 10

4Impact on Families and Communities
To this day, many families are separated geographically because a male family member wasdeported to his country of origin after attempting to comply with NSEERS, even if he did not have any
relatives or contacts in that country. 11 In April 2011, the Department of Homeland Security (DHS)
announced that the 25 NSEERS countries would be delisted and nonimmigrants from those countries
would no longer need to comply with the program. Although DHS framed this policy shift as having“ended” NSEERS, the delisting of the specific countries through the April 2011 Rule did not
eliminate the program’s underlying infrastructure. Individuals continue to face harsh immigrationconsequences resulting from the program, including deportation and the denial of immigration
benefits for which they are otherwise eligible.
Continued Lack of Transparency and Misuse of Data
Clear, publicly available information on NSEERS procedures and goals was unavailable from its
inception and the program continues to lack transparency. Even today, the agencies involved in the
program share little data or other information regarding its effectiveness. The issue of transparency
is closely related to concerns about the misuse of data.
While NSEERS has been suspended, the data collected through the program is still available
to DHS and potentially other government agencies. It is unclear how the data collected through theregistration process has been and potentially is still being used. Much of the data gathered is very
private and sensitive information, such as that related to individuals’ private financial matters. Those
who registered have to live with the constant fear that this data could be used against them in the
future.
NSEERS is Easy to Resurrect
Subsequent to the April 2011 delisting, DHS admitted that the NSEERS program was not
dismantled because the government wished to keep the regulations intact. This position is untenable
as it ignores the numerous calls for full termination from advocates, members of Congress, and DHS’
own Office of Inspector General. Moreover, this lets-keep-it-in-our-back-pocket approach toaddressing NSEERS suggests that the Obama Administration condones and intends to continue
policies that rely on discriminatory racial profiling.

5

Failure to Meet Program Objectives
NSEERS was ineffective and failed as a counterterrorism tool. There appears to be no
evidence that NSEERS has led to the identification of anyone suspected of involvement interrorism-related crimes. In February 2012, DHS’s independent watchdog, the Office of the Inspector
General (OIG), concluded that the NSEERS database was unreliable and found that the requirementsof the program proved to be burdensome upon registrants, as they imposed lengthy questioning andmultiple data checks. The OIG also characterized the program as an inefficient use of government
resources which prevented DHS agents from conducting more targeted homeland security
efforts. 12 DHS has estimated that the program cost American taxpayers more than $10 million
annually, and the OIG found that leaving the regulatory structure of the program intact provides nodiscernible public benefit. The OIG recommended fully terminating NSEERS and stated there is “nolonger a value to the program.” 13
Postscript
Following the final draft of this report in April of 2012, DHS released a new memorandum
about individuals impacted by NSEERS, granting limited relief to individuals who failed to comply withNSEERS and who can demonstrate that their noncompliance was not willful. This memo is bindingon all DHS personnel and requires each component of DHS to implement guidance within 60 days ofthe memorandum’s issuance and related training.
Conclusion
NSEERS is an ineffective, discriminatory program which relies on racial profiling. It continues
to devastate individuals, their families and communities and its lasting impacts are not sufficiently
corrected by the Obama Administration’s recent policy shifts. Rights Working Group hopes that thisreport and its recommendations result in the full termination of the NSEERS program, redress for all
individuals impacted by the program, and the discontinuation of the use of data collected through it.
Recommendations
Dismantle the Regulatory Framework of NSEERS: NSEERS has failed as a counterterrorism
policy, and national security needs can be addressed more effectively and efficiently through otherexisting programs and/or through programs targeting individuals based on suspect behavior, rather
than through identity-based criteria such as race, religion, gender, or nationality.
6Remove Residual NSEERS Penalties: DHS should, by regulation, remove the residual penalties
associated with NSEERS and apply such regulations retroactively. DHS should additionally set aside
immigration or criminal penalties against individuals who complied with, did not comply with, or areotherwise affected by the NSEERS program. DHS should also exercise prosecutorial discretion
favorably in cases where an individual has positive equities but faces immigration consequences
because he or she was targeted by NSEERS.
Information Collected through NSEERS Should No Longer be Used for Any Purposes: DHS
should discontinue the use of data collected through NSEERS.
Increase Oversight and Transparency: NSEERS should be fully audited by DHS through the
Office of Inspector General as well as by the Government Accountability Office to determine theprogram’s effectiveness and to examine the continuing impact of NSEERS on individuals and thepotential misuse of data. DHS should make statistics available on the number of individuals who
were identified through the program and subsequently convicted of terrorism-related offenses. DHS
should also provide complete statistics about the total number of individuals who registered with theprogram, as well as details about the enforcement actions that were taken against them.
Support the End Racial Profiling Act: To show his commitment to ending racial profiling,
President Obama should make a clear statement in support of the End Racial Profiling Act (ERPA)
of 2011. This bill was introduced in both Houses of Congress in 2011. 14 If ERPA were passed, it“would prohibit racial profiling by law enforcement at the local, state, and federal levels on the basisof race, ethnicity, national origin, religion, and gender.” 15
Fix the DOJ Racial Profiling Guidance: To effectively combat racial profiling, the 2003
Department of Justice Guidance on the Use of Race by Federal Law Enforcement Agencies must be
reformed to cover profiling based on religion and national origin; remove the large loopholes thatallow for profiling in the name of national security and border security; cover law enforcement
surveillance activities; apply anywhere federal agents act in partnership with state or local law
enforcement agents and to any agency that receives federal funds; and make the guidance
enforceable.

7

8

Introduction

In the national trauma caused by 9/11, civil liberties came face to face withnational security. Arab-Americans, American Muslims, and South-Asian
Americans faced national origin and religious profiling. To take just one
example, the Special Registration program targeted Arab and Muslim visitors,
requiring them to promptly register with the INS or face deportation. At the time,
I called for the program to be terminated because there were serious doubts
it would help combat terrorism. Terrorism experts have since concluded thatSpecial Registration wasted homeland security resources and alienated Arab
Americans and American Muslims. More than 80,000 people registered, andmore than 13,000 were placed in deportation proceedings. Even today, many
innocent Arabs and Muslims face deportation because of Special Registration.
How many terrorists were identified by Special Registration? None. 16--- Senator Dick Durbin (D-Illinois)In the wake of the September 11, 2001 attacks (9/11), the landscape of immigration law andpolicy in the United States changed dramatically as the government scrambled to create
counterterrorism programs to respond to potential national security threats. Many of these policies
relied on discriminatory profiling of individuals from predominantly Arab and Muslim countries basedon the false assumption that people of a particular gender, race, ethnicity, religion, or nationality havea greater propensity for committing terrorism-related crimes. 17 One of the most prominent of these
programs is the National Security Entry-Exit Registration System (NSEERS) or “special registration”
that was initiated by the Department of Justice (DOJ) in 2002 and later inherited by the Departmentof Homeland Security (DHS) in 2003. Since its inception, NSEERS elicited a strong negative response
from Arab, Middle Eastern, Muslim, and South Asian (AMEMSA) communities in the United States.
Advocacy organizations including Rights Working Group, 18 immigration lawyers and the private bar, 19
policy analysts, 20 and politicians 21 have spoken out against the discriminatory and ineffective
program. 22
On June 5, 2002, U.S. Attorney General John Ashcroft announced the creation of NSEERS, 23
9marketing it as a counterterrorism tool. 24 According to DHS, NSEERS was originally designed to[R]ecord the arrival, stay, and departure of certain individuals from countries
chosen based on an analysis of possible national security threats. The NSEERS
registration required approximately 30 minutes in secondary inspection, per person,
per arrival; and NSEERS registrants were also required to register upon departureat one of the 118 designated ports of departure, limiting travel flexibility. 25
NSEERS targeted visitors from predominantly Arab and Muslim countries. 26 The registration
process required certain individuals 27 to be fingerprinted, photographed, and interrogated about
their background and biographical information (including details about their families, birthdays andbirth places, financial information, etc.) at a port of entry/exit or at local immigration office. 28
Particularly in the beginning, the program’s regulations and guidelines were communicated anddistributed ineffectively, and at times even inaccurately, making it exceedingly difficult for individuals
to comply. 29 Although NSEERS has undergone several changes since its inception in 2002, it
remains a discriminatory program which relies on racial profiling. NSEERS continues to devastate
individuals, their families, and communities, and its impacts have not been sufficiently corrected
through the Obama Administration’s policy shifts.
This report adopts the definition of racial profiling contained in the End Racial Profiling Act of2011 (ERPA), 30 where it is defined as “[t]he practice of a law enforcement agent or agency relying,
to any degree, on race, ethnicity, national origin, gender, or religion—(i) in selecting which individual to subject to routine or spontaneous investigatory activities or(ii) in deciding upon the scope and substance of law enforcement activity following the initialinvestigatory activity.” 31
On April 28, 2011, DHS announced the “end” of NSEERS through a notice in the Federal
Register (April 2011 Rule). 32 Specifically, the April 2011 Rule stated “that it is no longer necessary
to subject nationals from these countries to special registration procedures, and this notice deletes
all currently designated countries from NSEERS compliance.” 33 A press release on the DHS website
stated:10

Since NSEERS was created, DHS has implemented several automated systems
that capture arrival and/or exit information, making the manual entry of this data
via the NSEERS registration process redundant, inefficient and unnecessary. The
improved and expanded DHS and Department of State systems capture the same
information for visitors, regardless of nationality. As a result of these advances
and input from community groups and advocacy organizations, we are pleased toannounce that the Department is officially ending the NSEERS registration process.
This step will streamline the collection of data for individuals entering or exiting theUnited States, regardless of nationality. 34
Although DHS framed this policy shift as having “ended” NSEERS, the delisting of the specificcountries through the April 2011 Rule did not eliminate the program’s underlying infrastructure, andwe do not regard this as a true end to the program. 35 This policy shift meant only that from April
28, 2011 onwards, individuals who would have been targeted previously by the program were nolonger obligated to register. Notably, the April 2011 Rule failed to address the ongoing negative
impacts felt by individuals who had previously registered, failed to register, or improperly registered.
While a variety of advocacy organizations opposed to the program applauded DHS for the“long-overdue” 36 suspension of NSEERS, 37 they also pointed out “that the program is dormant, notabolished, and there’s still been no accountability.” 38 Many of these advocacy groups contend that
DHS, through the April 2011 rule, did not address residual effects of the program, as “there remains
much damage to rectify from NSEERS’ discriminatory immigration enforcement.” 39
As a candidate, President Barack Obama’s campaign released a “Blueprint for Change” whichstated that, if elected, “Obama and Biden will ban racial profiling . . .”. 40 Attorney General Eric
Holder has also stated that ending racial profiling was a “priority” for the Obama Administration andthat profiling was “simply not good law enforcement.” 41 DHS maintains that NSEERS did not profile
based on religion because every eligible male from an NSEERS country was required toregister regardless of religious affiliation. We maintain that NSEERS did profile based on religion
because the program disproportionately impacted Muslims. A more detailed discussion of thisissue appears in the Racial Profiling section of this report. By keeping the structures of a program(NSEERS) that targeted people based on their gender, religion, age, and nationality in place, thefederal government can be seen as condoning and promoting similar discriminatory policies at thestate and local level. A prominent example is that of the New York City Police Department’s (NYPD)
11surveillance of Muslim communities and individuals. A series of Pulitzer Prize winning AssociatedPress articles revealed that the NYPD has subjected Muslims to surveillance. Undercover officers
infiltrated minority neighborhoods and hundreds of mosques and Muslim student groups, without
any reliable indication of suspect behavior. Many of the NYPD operations were built with help fromthe CIA, which is prohibited from domestic spying but which was critical to the transformationof the NYPD’s intelligence unit after 9/11. 42 The fact that DHS has kept the NSEERS regulatory
framework intact belies the Obama Administration’s statements of opposition to racial profiling andindicates the Administration’s support of similar practices at the state and local level.
This report builds on a 2009 white paper prepared by the Center for Immigrants’ Rights at
Penn State’s Dickinson School of Law on behalf of the American-Arab Anti-Discrimination
Committee. 43 The purpose of this report is to analyze the impact of NSEERS in its current form
and make recommendations for meaningful reform. The groundwork for this analysis is laid out in
Section 1: The NSEERS Framework, which describes the legal foundation and the development of
NSEERS since its inception. The ensuing policy analysis in Section 2: Policy Impact: NSEERS is

Still in Effect identifies the current issues with the program. In particular, this section looks at theeffects NSEERS has on those individuals who continue to be negatively impacted by the program.
Based on this examination, the Policy Recommendations section provides recommendations forgovernment policymakers. The report also aims to educate individuals, policymakers, andadvocates about NSEERS.
The methodology of this report consists of two pillars. First, it is based on the analysis ofstatutes, regulations, policies, reports, and statistics relating to NSEERS. Second, the analysis iscomplemented by interviews with policymakers involved in the creation and oversight of NSEERS,
analysts who have studied the program, and immigration attorneys and advocacy groups who haverepresented impacted individuals.

12.

ProfileD enyse S abagh ,H ead of immigration L aw G roup , D uane M orris LLC

I was involved with NSEERS from the beginning. Right from the start, when they published the first setof countries, it was very chaotic. The regulation was published in the Federal Register. It was notdisseminated to the community very effectively. Many people in the community and those who would
be affected by the regulation did not know about it.
I represented many individuals subject to NSEERS since its inception in 2002. The program was sloppy
in its original set-up due to the rapid execution, no additional funding for implementation, no additional
staff and a general lack of clear guidance. Initially, the regulations of the program were unclear to allparties involved (affected immigrants, immigration lawyers, and even government staff) and resulted in
mistakes and misinformation. For many affected individuals it was difficult to register because of longlines in front of registration offices, people being turned away, unclear, contradicting, or missing
information, and procedural mistakes made by the staff of the government agencies.
For a lot of people, it affected their lives adversely. I represented a student from Johns Hopkins. He
was from Pakistan. He had gone in to register. He had applied and had been admitted to Johns
Hopkins for his Master’s Degree. Johns Hopkins knew his situation. However, somewhere along theway, Hopkins failed to advise him properly about the timing of filing his application to change statusfrom H-1B to a student. He ended up in jail and in deportation proceedings. He also was the
President of the student body. They and the professors provided tremendous support. Thirty-plus
people came to his deportation hearing. The Judge was impressed. We conducted an all-out campaign
to get him reinstated. We were finally able to get him reinstated so that he could stay in the U.S. The
fallout from NSEERS for him and many others created unnecessary problems and psychological andemotional scars.
I also observed that as a result of NSEERS, the Muslim communities felt very much under siege. It
seemed that the legal standard changed and they were guilty until they were proven innocent. They
were placed in a state of constant anxiety and fear. NSEERS sure looked like racial profiling. Ittargeted individuals based on nationality, age, gender, and religion. If the government wanted tocreate an effective counterterrorism tool, it could have developed a list of criteria that would be related
to the actual focus of identifying terrorists, rather than profiling against whole classes of people basedon their nationality. 44
13

NSEERS Legal Framework
NSEERS was badly-conceived, poorly executed, arbitrarily administered, and it haddisastrous results.
— James Zogby, President and Founder of the Arab American Institute
The framework of NSEERS is linked to Section 110 of the U.S. Illegal Immigration Reform andImmigrant Responsibility Act (IIRAIRA) of 1996, 45 which mandated an automated entry-exit datasystem that would “collect a record of every alien departing the United States and match the recordsof departure with the record of the alien’s arrival in the United States.” 46 According to DHS, theinitial purpose of the entry-exit data system was to address the extensive problem the United States
was facing with nonimmigrants 47 overstaying their visas. 48
In response to the September 11 attacks, former President George W. Bush signed into law
the Uniting and Strengthening America by Providing Appropriate Tools to Intercept and Obstruct
Terrorism (USA PATRIOT) Act of 2001 49 and the Enhanced Border Security and Visa Entry Reform Act
of 2002 (EBSVERA). 50 Under Section 414 of the USA PATRIOT Act, 51 Congress called for the
integration of the entry and exit data system in Section 110 of the IIRAIRA amongst airports,
seaports, and land border ports of entry. The section further emphasized the utilization of biometrictechnology and the development of tamper-resistant documents readable at ports of entry. 52
As a means of implementing these changes, Congress placed the responsibility of developing
an entry and exit registration system on the Department of Justice (DOJ). NSEERS was createdunder the guidance of Kris W. Kobach, 53 a DOJ advisor at that time. While NSEERS was showcased
as a component of the entry and exit system, the program also found its statutory foundation insection 263 of the Immigration and Nationality Act (INA). 54 Under this section,
The Attorney General is authorized to prescribe special regulations and forms for theregistration and fingerprinting of (1) alien crewmen, (2) holders of border-crossing
identification cards, (3) aliens confined in institutions within the US, (4) aliens under order ofremoval, (5) aliens who are or have been on criminal prohibition or criminal parole within the
United States, and (6) aliens of any other class not lawfully admitted to the US for permanent
residence. 55
14

The NSEERS program had three main components. The first component of NSEERS was
known as “port-of-entry” registration and consisted of fingerprinting and photographing certain
nonimmigrants or visitors at all ports of entry, such as border crossings, seaports, and airports.
Those initially required to register included: visitors from Iran, Iraq, Libya, Sudan, and Syria, andselect foreign visitors determined to present an elevated national security risk. 56 Under NSEERS,
fingerprint scans were to be run on all entering nonimmigrants against a database of thousands ofknown terrorists. 57 All individuals registered under NSEERS were also required to re-register after
thirty days if initially registered at a port-of-entry and annually if they were remaining in the UnitedStates longer than one year. 58
The NSEERS program was expanded to include a “call-in” feature that required certain maleforeign visitors who were 16 years of age and older from specified countries and already present in
the United States to register at designated immigration offices. The registration requirement was
first applied to nonimmigrant males from Iran, Iraq, Libya, Sudan, and Syria. These individuals wererequired to register with INS between November 15, 2002 59 and December 16, 2002. The second
group required to register were from Afghanistan, Algeria, Bahrain, Eritrea, Lebanon, Morocco, North
Korea, Oman, Qatar, Somalia, Tunisia, United Arab Emirates, and Yemen. Their registration occurred
between December 2, 2002 and January 10, 2003. 60 The third group included individuals from
Pakistan and Saudi Arabia who were to register between January 13, 2003 and March 21, 2003. 61
The last group of visitors required to register were from Bangladesh, Egypt, Indonesia, and Kuwait
and were to register between February 24, 2003 and April 25, 2003. 62 The government’s executionof the “call in” registration was sharply criticized. Requiring males of a certain age frompredominantly Muslim countries to register constituted profiling based on gender, age, religion, 63
and nationality. Moreover, inadequate notice and misinformation prevented many individuals who
would have complied from doing so. The federal government relied principally on notices in theFederal Register to inform the public of registration requirements and, like the majority of theAmerican population, most individuals subject to NSEERS were not familiar with the Federal Registeror the requirements contained therein. 64
Finally, the NSEERS program established a system of exit controls, which required
individuals subject to NSEERS to register each time they departed from the United States. 65
15

Then-Attorney General John Ashcroft believed a critical aspect of the NSEERS program was to arrest
those individuals who attempted to escape the registration requirements or to stay in the country
beyond their permitted time. 66
Failure to comply with NSEERS could result in significant penalties. 67 Any nonimmigrant
subject to special registration who failed without good cause to be examined by an inspecting officer
at the time of his departure and to have his departure recorded by the inspecting officer is presumed
to be inadmissible upon future entry under but not limited to 212(a)(3)(A)(ii) of the Immigration andNationality Act (INA) as an “alien who seeks to enter the United States to engage in unlawful
activity.” 68 If one failed to comply with NSEERS after admission into the United States, he isconsidered to have failed to maintain status under section 237(a)(1)(C)(i) of the INA. 69 However,an exception to this rule applies if the individual is able to demonstrate that the failure to register was“reasonably excusable or not willful.” 70 A related penalty kicked in for a number of individuals who
were in the process of applying for an immigration benefit or relief, who were told during this processthat they must comply with NSEERS through “late” registration. In these situations, the agency’s
adjudication of “willful” was often controversial to the extent that officers capriciously stamped thepassports of late registrants as “willful” even in cases where they were unaware of the program,
limited in English, and/or of high school age at the time they were required to register. 71
Another potential consequence for failure to comply with NSEERS is the initiation of criminal
proceedings. Pursuant to the statute and related notices issued by the government, anyone required
to register who “willfully fails or refuses” to do so “shall be guilty of a misdemeanor and shall, uponconviction thereof, be fined not to exceed $1000 or be imprisoned, not more than six months, orboth.” 72
In December 2003, DHS amended NSEERS by suspending the thirty-day and annual
re-registration requirements, among other changes. 73 In place of the previous requirement, the
new rule allowed DHS, as a matter of discretion, to notify individual nonimmigrants subject to
NSEERS to appear for one or more additional continuing registration interviews to determine whether
the individual was complying with the conditions of his or her visa status and admission. 74 The 2003
rule left the regulatory framework of NSEERS, related penalties, and entry and exit registration
requirements intact.
16

DHS subsequently issued a handful of memos discussing how immigration cases involving
NSEERS should be handled. One memorandum issued by former ICE Principal Legal Advisor William
Howard in October of 2005 addressed the use of prosecutorial discretion and its relation to NSEERS(Howard Memo). 75 Prosecutorial discretion is law enforcement’s authority to decide whether or not
to enforce particular laws against a party. 76 The Howard Memo urges ICE attorneys to use
prosecutorial discretion before or in lieu of issuing a Notice to Appear (NTA) for immigration action 77
in certain sympathetic circumstances in which an individual has failed to register with NSEERS.
Specifically, the Howard Memo states:
When an alien subject to NSEERS registration failed to timely register but is otherwise instatus and has no criminal record, he should not be placed in proceedings if he has areasonable excuse for his failure. Reasonably excusable failure to register includes thealien’s hospitalization, admission into a nursing home or extended care facility (where
mobility is severely limited); or where the alien
is simply unaware of the registration78
requirements.
Interestingly, the Howard Memo did notinclude “compliance with NSEERS” as a positive
factor in considering whether to exercise
prosecutorial discretion favorably. Reverend Seth
Kaper-Dale of the Reformed Church, profiled later inthis report, has criticized the absence of suchlanguage in the Howard Memo and lamented thatseveral Indonesian men in his community compliedwith NSEERS but were nonetheless placed in removal
proceedings. After months of advocacy with the local
ICE office, Kaper-Dale was able to move ICE to grantorders of supervision (a form of prosecutorial
discretion) for about eighty-three Indonesian

Photo Courtesy of Reverend Seth Kaper-Daleimmigrants, nine of whom were incarcerated by ICE but were later
released as a result of the arrangement. 79

17

On April 28, 2011, DHS announced the delisting of all 25 specified countries from theprogram. 80 The Department stated that, as a result of improved intelligence programs and bettermethods of tracking immigrant visa overstays, NSEERS is no longer needed to protect national
security. In addition, DHS stated that it will “seek to identify individuals and actions that pose specificthreats, rather than focusing on more general designations of groups of individuals, such as countryof origin.” 81 This language supports the idea that the profiling of individuals based on gender, age,religion, or nationality is wrong and ineffective and that NSEERS represents a failed policy. This April
2011 rule thus temporarily suspends the program requirements for nationals and citizens from these
25 countries. Key to note, however, is that the regulations that gave rise to the NSEERS program andthe penalties faced by the vast majority of noncitizens who did not comply or improperly compliedwith the program remained in place.
On June 17, 2011, Immigration and Customs Enforcement (ICE) Director John Morton issued
two significant memos on the use of prosecutorial discretion in immigration matters. 82 The memo
called on ICE attorneys and employees to refrain from pursuing noncitizens with close family,
educational, military, or other ties in the United States, and instead to spend the agency’s limited
resources on persons who pose a serious threat to public safety or national security. The Morton
Memo elucidates 19 factors that ICE should consider in deciding whether prosecutorial discretionshould be favorably exercised. 83 The Morton memo is the most comprehensive memo on
prosecutorial discretion since the creation of DHS. Yet, as of this writing, it has, at best, been
implemented inconsistently. 84 Moreover, the Morton Memo lacks any details about how individuals
impacted by NSEERS should be treated.
United States Citizenship and Immigration Services (USCIS) also issued a memo related toprosecutorial discretion on November 7, 2011. This memo established new guidelines for referringcases and issuing Notices to Appear (NTAs) in a manner that promotes the effective use of DOJ andDHS resources. It states that USCIS will refer all cases in which immigration benefits are denied
based on NSEERS violations to ICE for possible NTA issuance. 85 This memo reveals that
immigration benefits can still be denied because of NSEERS and that those whose cases werepreviously denied could continue to face negative consequences. In addition, referring cases to ICE
for possible NTA issuance means that individuals are still subject to removal from the United States
because of NSEERS. This referral policy contradicts the agency’s stated desire to “end” NSEERS. 86
18

In February 2012, DHS’s independent watchdog, the Office of the Inspector General (OIG),
released a report entitled, “Information Sharing on Foreign Nationals: Border Security.” 87 In thisreport, the OIG concludes that the NSEERS database was unreliable and finds that the requirementsof the program proved to be burdensome upon registrants, as they imposed lengthy questioning andmultiple data checks. The OIG also characterizes the program as an inefficient use of government
resources that prevented DHS agents from conducting more targeted homeland security efforts. 88
DHS has estimated that the program cost American taxpayers more than $10 million annually, andthe OIG finds that leaving the regulatory structure of the program intact provides no discernible
public benefit. Most importantly, the OIG recommends fully terminating NSEERS and states there is“no longer a value to the program.” 89

Policy Impact: NSEERS is Still in Effect
Of course it could come back because the infrastructure is still there and they [thegovernment] still do not get the fact that they screwed it up. They did not get it right andthey wasted resources and did not accomplish anything. They will do it again and they will
do it again in exactly the same way because they still do not get it. 90— James Zogby, President and Founder of the Arab American InstituteDespite DHS’ indefinite suspension of NSEERS under the April 2011 Rule, no relief or policy
has been suggested that addresses foreign nationals and citizens who were placed in removal
proceedings after complying with NSEERS, those who had never registered because they were afraid
to register or were unaware of the program, among others. 91 This section also highlights a numberof policy concerns with NSEERS including the program’s lack of transparency, misuse of the datacollected through NSEERS, the negative impact of preserving the underlying regulatory structure,and the program’s ineffectiveness as a counterterrorism tool.

19

.

ProfileH adi S yed Z aidi ,I ndividual affected by NSEERS

Hadi Syed Zaidi is a Pakistani citizen who came to the United States at the age of 4. After being anhonors student in high school, he attended West Los Angeles Community College with the hope ofultimately being able to transfer to a four-year university and enroll in a degree program in industrial
design or applied mathematics. 92 His parents are both green card holders. Having registered under
NSEERS when he was 16, he was taken into custody by ICE in December of 2011, after the
purported “end” of NSEERS as announced in April of that year. He was detained because heoverstayed his visa and consequently faced deportation to Pakistan. Hadi was eventually released
and granted a temporary stay of removal in January of 2012. Despite this temporary stay, he can still
be taken into custody and must check in with immigration officials on a regular basis. 93

Racial Profiling
Racial profiling undermines the rule of law and strikes at the core of our nation’s94
commitment to equal protection for all.
— Senator Dick Durbin (D-Illinois)e
Since the 9/11 attacks, the United States has seen an increase in racial profiling practices and policies
at the federal, state, and local level, particularly the targeting of individuals of Arab, Middle Eastern, Muslim,and South Asian descent or those perceived to be members of those groups. 95 This increase is tied tocounter-terrorism measures such as NSEERS implemented by the federal government which permitted andeven encouraged authorities to target these communities. 96 As mentioned previously in this report, the call-in
portion of NSEERS targeted male visitors of certain ages from 25 specified countries, 24 of which havepredominantly Muslim populations. The program was discriminatory, arbitrary and failed to meet its purported
goals. Government officials have argued that NSEERS did not constitute profiling in part because it was
intended to expand to all countries, but this did not occur, as the NSEERS list was never expanded past the 25
20

countries—and individuals continue to be negatively affected by the program despite its suspension. 97
Preeminent scholar on racial profiling, David Harris from the University of Pittsburgh School of Law stated in a2012 congressional hearing on racial profiling that under NSEERS, “Muslims were targeted by using a
convenient proxy characteristic: national origin.” 98 The agency maintained that NSEERS did not profile basedon religion because every eligible male from the NSEERS countries was required to register regardless ofreligious affiliation. We disagree. In addition, while some members of the immigration agency have argued
that distinctions based on nationality and national origin in immigration are not only legitimate and consistent
with other immigration designs, the context matters. In her paper “Business as Usual: Immigration and the
National Security Exception,” Professor Shoba Sivaprasad Wadhia writes:
While profiling based on nationality or national origin may not be inherently wrong, there are atleast five reasons why it is offensive and in many cases no different from profiling based on race,
ethnicity or religion: 1) in practice many policies based on nationality disproportionately impact
particular religions and ethnicities; 2) this disproportionate impact creates the perception that a
particular policy is premised on anti-Arab or anti-Muslim sentiment; 3) most of the countries
identified by the government as harboring terrorists have been Arab or Muslim; 4) in practice“nationality” based profiling is often conflated with “national origin” profiling; 5) profiling basedon country of birth has extended to naturalized United States [citizens] from particular countries,
leading to the presumption that citizens from particular places are somehow less reliable or loyal
in their allegiances to the United States. 99

The Obama Administration’s refusal to fully terminate NSEERS suggests that the Administration condones,
supports, and intends to continue policies
that rely on discriminatory racial profiling,such as those of the New York City Police
Department (NYPD) at the local level andthe Federal Bureau of Investigation (FBI)at the federal level. With strong parallels to NSEERS, it was reported in 2011that the NYPD has a secret squad, known
as the Demographics Unit, that spies on
Muslim businesses, mosques, and Muslim
students on campuses in New York Cityand beyond. This squad wears

Photo Courtesy of Monami Maulik, Desis Rising Up andMoving (DRUM)
21

plainclothes and goes into Muslim neighborhoods to photograph and monitor mosques and locations where
Muslims congregate including restaurants, grocery stores, and travel agencies. The NYPD further monitors
Muslims who have changed their names to sound more traditionally American. At mosques, police record
license plates and take photos and videos of worshippers as they arrive for services. In 2004, New York City
adopted a law to prohibit racial profiling, which is defined as “the use of race, color, ethnicity, religion, or
national origin as the factor for initiating police action.” Surveillance such as that conducted by the NYPD
contradicts this law and clearly constitutes racial profiling, as did NSEERS. 100 Policies that rely on
profiling persist at the national level as well, as evidenced, for example, by the FBI’s mapping program. Basedon crude stereotypes and assumptions about which groups commit crimes, the FBI is collecting racial andethnic information and “mapping” communities around the United States. Across the country, the FBI isgathering reports on the so-called “suspicious activity” of innocent Americans and sharing it across federal,state and local government agencies. 101

22

Impact on Families and Communities[NSEERS] is a family-breaking policy. 102— Seth Kaper-Dale, Reverend at the Reformed Church in Highland Park, New Jersey.

ProfileS eth K aper-D ale ,R everend at the R eformed C hurch in H ighland
P ark , N ew J ersey

My wife and I became co-pastors of the Reformed Church in Highland Park in
September of 2001. Our first Sunday was two days before 9/11. The Reformed Church served as a
sanctuary for the Indonesian community to worship quietly on Sunday afternoons. Almost all of
individuals from this community fled religious persecution in Indonesia and arrived in the UnitedStates on tourist visas. However, many had failed to file for asylum. After the start of the NSEERS
Program, 103 I urged the Indonesian community to register and many took my advice and did register.
Melinda Basaran, a New Jersey immigration lawyer who worked with the Indonesians, believes thata “good portion” of the community was deported due to compliance with NSEERS. 104 In May 2006
at 5 a.m., at an apartment complex where many Indonesians lived, armed federal agents roundedup 37 men with expired visas and deportation orders— terrifying their wives and children as they,along with others, witnessed the men being taken away. Many believe that this raid was a result of
the information provided when registering with NSEERS. NSEERS did nothing more than instill fear
amongst these individuals, break family unity, and destroy the Indonesian community. 105
Augus Alex Asa and his wife Grace arrived in the United States on tourist visas from Indonesia. They
complied with the NSEERS registration process in fear of being considered terrorist fugitives. I urged
the Indonesian community to register, but could have never predicted such detrimental
consequences. During the raid in May 2006, Mr. Asa, his wife, and daughter hid in the closet as theimmigration agents arrived at their door. For two weeks after, the family slept at the church. After
lengthy stays in immigration jails, 37 men from this Indonesian community were deported. Theirwives were forced to find work, financially support their families, and raise their children alone. 106
23

On a Sunday night in 2006, I saw a lot of fathers playing with their kids in the sandbox. In the wee
hours of Monday morning they were picked up in that raid. Within thirty days, every single male wassent away. We had people fearing everyday that another raid would happen. So for the next month,
we had about forty people sleeping in our church, eating at our kitchens. 107

NSEERS has had a wide range of negative social and economic consequences for families oftargeted individuals. NSEERS requirements often resulted in immigration detention or deportation,
tearing families apart. Many of these families feared not only loss or separation from a loved one,but loss of their primary source of income and resulting homelessness. To this day, many families are
separated geographically because a male family member was deported to his country of origin after
attempting to comply with NSEERS, even if he did not have any relatives or contacts in thatcountry. 108.

PofileM irwan H arahap ,I ndividual affected by NSEERS

I fled harassment and discrimination of Christians like myself in Indonesia in 1997 and arrived in the
United States on a tourist visa. I began working at a car service center in Metuchen, New Jersey.
After the start of NSEERS, I registered under the program and was questioned by DHS regarding
my overstay in the United States. In February 2009, I was deported to Indonesia and it destroyed
my family. I was forced to leave behind my wife and U.S. born child, and return to a country to live
without my loved ones. Complying with the registration procedures and abiding by NSEERS, my life
has been destroyed, whereas others who did not register under NSEERS continued to live and workin the United States. Despite my valid working permit issued by DHS and my attorney’s demand for
my release back to my family in Metuchen, ICE has refused to reopen my case. I constantly question
why the U.S. government rushes to deport family-oriented men with no criminal records who havecontinued to live in the United States as law-abiding citizens for numerous years. 109

24

NSEERS continues to have real, negative impacts on families and communities.
Prosecutorial discretion “authorizes immigration officers and attorneys to channel their limited
enforcement resources towards the most dangerous, while placing sympathetic cases involving
individuals with favorable qualities like full-time fathers, those with serious medical conditions,long-time employees, and students with strong ties to the U.S. on hold.” 110 Prosecutorial discretion
could thus potentially apply to many individuals who are affected by NSEERS and present otherpositive equities.
The October 2005 Memo by former ICE Principal Legal Advisor William Howard and the June
2011 Memo by ICE Director John Morton 111 advise the use of prosecutorial discretion in ICE
enforcement, clarifying that the enforcement focus should be on high-priority cases. However, thememos lack clear instructions about when and how to use prosecutorial discretion in NSEERS cases.
Arguably many of the positive equities that should be considered in the granting of relief, as
described in the Morton Memo, are demonstrated by several members of the Indonesian community
in New Jersey in which Reverend Kaper-Dale is so heavily engaged. 112 These individuals, many ofwhom had registered under NSEERS and none of whom have criminal histories, had overstayed theirvisas. At least 37 were deported. In 2009 and 2010, most of these Indonesians who had not been
forced to leave were able to strike a temporary deal with the local ICE office but now facedeportation. They had received orders of supervision, allowing them to live and work in the UnitedStates lawfully as long as they tried
to obtain legal immigration status.
In 2011, when the Morton Memo on
prosecutorial discretion was issued, thecommunity assumed that the memo
would aid their cases. Instead, ICE
seems to have stepped up theirenforcement, requiring 72 Indonesians,
who had previously been given ordersof supervision and who should qualify
for the favorable exercise ofprosecutorial discretion, to report to

Photo Courtesy of Reverend Seth Kaper-Dale25

the local DHS office for possible immigration action. 113
Prosecutorial discretion is critical to addressing the residual effects of NSEERS. The mere
existence of prosecutorial discretion guidelines, unfortunately, has not guaranteed their appropriate
implementation.
There are 19 bullet points [listing factors to consider when exercising prosecutorial discretion] inMorton’s June 17th memo…and even if you have 17 on there, and if you don’t have the one or
two that your field office wants to give, they do not care. Everybody in our community has a large
number of those bullet points. Fifty-percent of our people have been granted 1 year stays by usingthat criteria and fifty-percent [have] not. That’s how capricious this program is. 114--- Reverend Seth Kaper-Dale, Reformed Church of Highland Park, New Jersey

Lack of Transparency
Clear, publicly available information on NSEERS procedures and goals was unavailable from its
inception 115 and the program continues to lack transparency. Even today, the agencies involved in
the program share little data and other information regarding its effectiveness. The few statistics thatare available, such as the frequently quoted numbers from a 2003 ICE factsheet on NSEERS, 116 are
outdated. This factsheet states that, out of a total of 83,519 individuals who registered with NSEERS,
13,799 individuals were placed into removal proceedings and 2,870 were detained. 117 The mostrecently available information from the 2012 DHS OIG report states that the number of entry and exit
registrations decreased from over 250,000 per year in 2002 to approximately 60,000 in 2010. The
report further notes that “NSEERS remains a significant part of the CBP caseload” and that “at several
ports of entry, NSEERS registrants were the largest caseload handled in secondary inspections.” 118
There are various reports about the lack of information or even misinformation, particularly inthe beginning of NSEERS implementation. Voicing the perspectives of many immigration lawyers, 119
Denyse Sabagh points out that very little information was available about NSEERS in its initial stages.
Even many immigration lawyers were unaware of the exact nature of the program and requirements
for compliance. 120 The lack of transparency had grave effects on community leaders and affectedindividuals, as further described by Dr. James Zogby.
26.

ProfileD r. J ames Z ogby,
P resident and F ounder of the A rab A merican
I nstitute

The Arab immigrant communities we serve at the Arab American Institute have been confronted withthe effects of NSEERS from the beginning of the program and continue to feel its consequences.
Right in the beginning, we called the Dallas office of the INS [in charge of NSEERS before thecreation of DHS] and asked, “Are you sending out notices of information to people?” and they said,“Yeah it’s all taken care of.” We said that we have talked to our people in Dallas, but they have notheard anything from you. INS responded and said “Oh no, that’s not true, we have talked to the
Arab community.” INS stated that they had a group of women in, and they had veils on so they knew
they were Arab. We then asked them what about the name of the group. It turned out that it wassome Pakistani medical association, so obviously the INS officer did not know that Pakistanis are not
Arabs and that not all Arabs are Muslims and just by [talking to someone] wearing a head scarf does
not mean that you talked to the Arab community.
We found much the same in other cities, where they did not know who the Arab groups were, they
did not know how to reach the groups, and they were counting on us. It was then that I began using
the framework that it was badly conceived, poorly executed, arbitrarily administered and it haddisastrous results. It was arbitrarily administered, which was what we discovered when they begancalling the dates because what we found was that if you were from the Clinton era and applied forchange of status and got married, whatever, changed schools, and got a letter saying okay, if you
showed up in one office, they said that you didn’t even need to show up and you were fine. But if
you showed up in another office you were told that it was not acceptable and you could be held fordeportation. We got a number of those.
Now, ten years after NSEERS was created, the lack of transparency is one of the major issues thatremain. My policy recommendation would be to request full transparency. I strongly believe thatwithout establishing transparency and accountability, the issues of the program will never be
addressed appropriately. That being said, I don’t see any willingness on the part of the government
to do that. When I asked a senior officer in DHS during the Bush administration to give us anaccounting of how many were ordered deported and why, he said that he couldn’t find such records.
That’s a hell of a way to run a government. You have people who came and registered at INS offices,
somebody must have a printout of that, someone must have some documentation of that. They say
27that they don’t. I would like to see how many people went in to register, and how many people weredeported and why. Until I see that, this entire process is a mystery and it’s a mystery because it isso badly done and that is a huge embarrassment and the government does not want anyone to know
how badly it was done.
Even if NSEERS would actually be terminated at some point in the future, the issue of transparency
would have to be addressed. In fact, the Administration needs to re-examine the effects of the
program on individuals on a case-by-case basis. Practically no numbers are known or made available.
The decision makers responsible for the creation and enforcement of the program need to be held
accountable, particularly with the program’s infrastructure still being intact. We need to get to thebottom of it. If the instinct is there and the culture is there, then this will happen again. NSEERS has
sowed fear and confusion in the Arab and Muslim communities instead of promoting an atmosphereof cooperation with law enforcement authorities. 121

ProfileS eth K aper-D ale ,28

Misuse of Data
The issue of transparency is closely related to concerns about data use. Even after the
discontinuation of the NSEERS requirements, it is not completely clear how the data collected throughthe registration process has been and potentially still is being used. The “Operation Frontline”
program is one example of how data gathered through NSEERS was used for discriminatory law
enforcement activities that went far beyond the boundaries of NSEERS. Operation Frontline wasstarted in 2004 with the stated purpose of preventing a terrorist attack during the presidential
elections. To reach this goal, ICE targeted alleged violators of immigration law who had been
identified as potential national security concerns. While the government denied profiling based on
ethnicity or religion, more than 80 percent of the individuals approached through Operation
Frontline were from predominantly Muslim countries. 122 Data from NSEERS and two otherimmigration programs, the Student and Exchange Information System (SEVIS) and the United States
Visitor and Immigrant Status Indicator Technology program (US-VISIT), were mined by ICE in order
to identify individuals to target for Operation Frontline. 123 Advocacy organizations such as theAmerican-Arab Anti-Discrimination Committee were quick to detect this misuse of the data. 124
While NSEERS has been suspended, the data collected through the program is still available
to DHS and potentially other government agencies. Much of the data gathered is very private andincludes sensitive information, such that related to individuals’ private financial situations. Despite
the government’s claim that the data is being used for NSEERS purposes, those who registered haveto live with the constant fear that this data could be used against them in the future. This is all themore troubling given the DHS Office of Inspector General’s acknowledgment that “the NSEERS
database is unreliable and it is difficult for NSEERS registrants to adhere to the registration
requirements.” 125 The DHS OIG has further confirmed that “[D]ata captured in the NSEERS database
are transferred automatically to other DHS systems or captured initially in other systems, including
US-VISIT and Enforcement Case Tracking System (ENFORCE).” 126

29

NSEERS is Easy to Resurrect
As mentioned previously, what was framed by DHS as the “end” of NSEERS was simply adelisting of the 25 countries through the April 2011 Rule. The legal foundation for the program
remains. Subsequent to the April 2011 delisting, DHS itself admitted that the NSEERS program was
not dismantled because the government wished to keep the regulations intact:

Because the Secretary of Homeland Security’s authority under the NSEERS regulations
is broader than the manual information flow based on country designation that has now
ended, the underlying NSEERS regulation will remain in place in the event a special
127
registration program is again needed.

The decision by DHS to preserve the underlying NSEERS regulations is inconsistent with their
sentiment that NSEERS “has become redundant as we have strengthened security across the board,while at the same time improving and expanding existing systems to automatically and more
effectively capture the same information thatwas being manually collected via NSEERS.” 128
Moreover, preserving the NSEERS framework
perpetuates the anxiety and fear felt in AMEMSA
communities. It also suggests that the federal
government condones discriminatory profilingpractices and intends to engage in them again
in the future. A significant step towards
establishing trust and eliminating profilingbased on religion, nationality, and genderwould thus be for the U.S. government toterminate NSEERS completely. This would
require the full dismantling of the underlying
regulations and the provision of meaningful relief
for all individuals negatively impacted by the
program.

Photo Courtesy of Monami Maulik, Desis Rising
Up and Moving (DRUM)
30

Failure to Meet Program Objectives
NSEERS was inefficient and failed to meet the purpose the government claimed it served.
The program was purportedly designed as a counterterrorism tool. The exact number ofindividuals arrested on the basis of terrorism-related charges through NSEERS has never been madepublicly available. In fact, there seems to be no evidence that NSEERS helped convict any individuals
in connection with any terrorism-related crimes, although the Bush Administration reported that the
program identified 11 “terrorism suspects.” 129 Government officials have not corrected those whohave pointed out that “[NSEERS] was ineffective in producing terrorism-related convictions,” 130 orthat “the NSEERS program did not result in a single terrorism conviction.” 131 Rather than refuting
these criticisms, DHS responded to a related congressional inquiry by stating that information about
the program’s success in convicting terrorists is classified and unavailable to the public. 132
Another fundamental criticism of NSEERS is that the program is “unnecessary” because thedata collected through the program is already captured through other means. 133 DHS even adopted
this view in its recent descriptions of the program, most notably in the April 2011 Rule. 134 Moreover,the 2012 report by the DHS OIG clearly stated that CBP itself has pointed to the low value of theinformation collected through the NSEERS interviews. 135 Given these failures and all the program’s
collateral consequences on families and communities, no argument can be made for DHS to keep the
program in its back pocket.

I think that it was an ill-advised program and the ultimate goal was not achieved because
the program was defective from the start… I would abolish NSEERS. There are plenty oflaws and regulations already in effect. If you are looking to come up with a program that istrying to identify terrorists and prospective terrorists, then I would try to come up with a listof characteristics that would be related to the actual focus of the search. 136--- Denyse Sabagh, Head of Immigration Practice Group, Duane Morris LLP

31

Postscript

Following the completion of this report, DHS released a long-awaited memo addressing thetreatment of individuals who previously failed to comply with NSEERS (April 2012 Memo). 137
The April 2012 Memo offers the agency’s first definition for “willful” noncompliance withNSEERS and protects individuals who are able to prove that their noncompliance with NSEERS was
not willful. It defines “willful” noncompliance as “that which was deliberate, voluntary, or intentional,
as distinguished from that which was involuntary, unintentional, or otherwise reasonably excusable.”
The April 2012 Memo further notes that individuals who are found to have “willfully” failed to registercan be considered for prosecutorial discretion as appropriate.
Importantly, the April 2012 memo is “binding” on all DHS personnel and requires eachcomponent of DHS to implement guidance within 60 days and implement training in line with thecontents therein. Moreover, it retracts from the controversial language contained in the November
2011 USCIS NTA Memo by ceasing referrals of cases with suspected NSEERS violations from USCIS to
ICE unless the case is denied for “willful” noncompliance.
Despite the significant step DHS has made after years of documentation about the individuals
and families stained by NSEERS, the limitations of the April 2012 Memo are striking and illustrate theimportance of the recommendations contained in The NSEERS Effect. First and foremost, it maintains
the regulatory framework of the NSEERS program. Moreover, the April 2012 Memo fails to articulate
a clear policy for those who complied with NSEERS and now face immigration consequences.
Additionally, it creates room for ambiguity about what constitutes “willful” by leading with a rather
broad definition (see above) and later elucidating rather extreme examples (e.g., exceptional circumstances beyond the alien’s control, incapacitation of the alien). Also troubling is the conclusion thatpeople who failed to register out of ‘fear’ or ‘inconvenience’ could be found to be in ‘willful’noncompliance. The April 2012 Memo further imposes the burden of proving that noncompliance withNSEERS was not ‘willful’ on the individual while at the same time allowing the DHS to continue using
information that was obtained through or in connection with the NSEERS program.
32

RWG is disappointed by the limited reach of the April 2012 Memo and hopes that this report and its
recommendations result in the full dismantling of the NSEERS program, redress for all individuals
impacted by the program, as well as a discontinuation of use of data collected through the program.

33

Policy Recommendations
Refugees came to this country seeking safety from violence. They ended up having their families
ripped apart. Those that did not have their families ripped apart are going through 10 years of immigration hell because of NSEERS and the way it played out. You created anger and fear that wehave never gotten over. It still is doing damage. 138--- Reverend Seth Kaper-Dale, Reformed Church of Highland Park, New Jersey•

Dismantle the Regulatory Framework of NSEERS: NSEERS has failed as acounterterrorism policy. National security needs can be addressed more effectively andefficiently through other existing programs and/or through programs targeting
individuals based on suspect behavior, not identity-based criteria such as race, religion,
gender or nationality. 139•

Remove Residual NSEERS Penalties: DHS should, by regulation, remove the residual
penalties associated with NSEERS, and apply such regulations retroactively. DHS should
additionally set aside immigration or criminal penalties against individuals who complied
with, did not comply with, or are otherwise affected by the NSEERS program. DHS
should also exercise prosecutorial discretion favorably in cases where an individual has
positive equities but faces immigration consequences because he or she was targetedby NSEERS.

•

Information Collected through NSEERS Should No Longer be Used for Any Purposes:
DHS should discontinue the use of data collected through NSEERS.

•

Increase Oversight and Transparency: NSEERS should be fully audited by DHS throughthe Office of Inspector General, as well as by the Government Accountability Office, todetermine the program’s effectiveness and to examine the continuing impact of NSEERS
on individuals and the potential misuse of data. DHS should also make statistics
available on the number of individuals who were identified through the program andsubsequently convicted of terrorism-related offenses. DHS also should provide
complete statistics about the total number of individuals who registered with the34

program, as well as details about the enforcement actions that were taken againstthem.
•

Support the End Racial Profiling Act: To show his commitment to ending racial profiling,
President Obama should make a clear statement in support of the End Racial Profiling
Act (ERPA) of 2011. 140 This bill was introduced in both Houses of Congress in 2011.
If ERPA were passed, it “would prohibit racial profiling by law enforcement at the
local, state and federal levels on the basis of race, ethnicity, national origin, religion,and gender.” 141•

Fix the DOJ Racial Profiling Guidance: To effectively combat racial profiling, the 2003
Department of Justice Guidance on the Use of Race by Federal Law Enforcement
Agencies must be reformed to cover profiling based on religion and national origin;remove the large loopholes that allow for profiling in the name of national security andborder security; cover law enforcement surveillance activities; apply anywhere federal
agents act in partnership with state or local law enforcement agents and to any agency
that receives federal funds; and make the guidance enforceable.

35

GLOSSARYADC		

American-Arab Anti-Discrimination Committee

AIC

American Immigration Council (formerly American Immigration Law Foundation)

AILA		

American Immigration Lawyers Association

AMEMSA

Arab, Middle Eastern, Muslim, and South Asian

CBP		Customs and Border Protection

DHS 		

Department of Homeland Security

DOJ 		

Department of Justice

EOIR 		

Executive Office for Immigration Review

ICE 		

Immigration and Customs Enforcement

IIRAIRA

Illegal Immigration Reform and Immigrant Responsibility Act

INA 		

Immigration and Nationality Act

INS		Immigration and Naturalization Service

NSEERS

National Security Entry-Exit Registration System

NTA		

Notice to Appear

OIG		

Officer of Inspector General

RWG		

Rights Working GroupSEVIS 		Student and Exchange Information System

USCIS

U.S. Citizenship and Immigration Services

US-VISIT

United States Visitor and Immigrant Status Indicator Technology Program36Endnotes
1 Telephone Interview with Seth Kaper-Dale, Reverend, The Reformed Church of Highland Park, NJ (Feb. 23,

2012).

2 Email Interview with Mirwan Harahap, individual affected by NSEERS (Mar. 23, 2012).
3 Denyse Sabagh, http://www.duanemorris.com/attorneys/denysesabagh.html (last visited Apr. 5, 2012).
4 About James Zogby, http://www.aaiusa.org/pages/about-dr-zogby (last visited Apr. 5, 2012).
5 The 25 countries are: Afghanistan, Algeria, Bahrain, Bangladesh, Egypt, Eritrea, Indonesia, Iran, Iraq, Jor-dan, Kuwait, Lebanon, Libya, Morocco, North Korea, Oman, Pakistan, Qatar, Saudi Arabia, Somalia, Sudan,
Syria, Tunisia, United Arab Emirates and Yemen. North Korea was the anomalous addition to the list of NSEERS
countries and was seen as a fig leaf by many advocates opposed to the program who believed that it wasadded to the list to provide political cover for a policy that would obviously be criticized as discriminatory. The
U.S. hosts almost no North Korean visitors and would not be necessitated to include North Korea in a list of
NSEERS countries due to an actual national security threat that could be identified through special registration.

6 Rights Working Group, The Policy Impact Ten Years Since 9/11: NSEERS (2011), http://www.rightsworking-group.org/content/policy-impact-ten-years-911-nseers (last visited Feb. 26, 2012); American-Arab AntiDiscrimination Committee, End of the Shame of NSEERS (Apr. 28, 2011), http://www.adc.org/legal/end-theshame-of-nseers/ (last visited Feb. 22, 2012); Desis Rising Up and Moving, DRUM Welcomes Victory in Endings
NSEERS and Calls for Accountability for Thousands of Muslim Families Already Torn Apart (Apr. 28, 2011)
http://drumnyc.org/DRUM/Media/Pages/NSEERS_Release_April11.html (last visited Mar. 7, 2012); National
Immigration Forum, Advocacy Organizations Welcome DHS Policy Change Regarding NSEERS (Apr. 27, 2011),
http://immigrationforum.org/media/advocacy-organizations-welcome-dhs-policy-change-regarding-nseers (lastvisited Feb. 3, 2012); South Asian Americans Leading Together (SAALT), Wrong Then, Still Wrong Now (Dec. 4,2009), http://blog.saalt.org/?p=706 (last visited Jan. 30, 2012).
7 See, e.g., AILA, AILA Welcomes End of NSEERS Country Listings, Call for Program’s Complete Termination(April 27, 2012), http://www.aila.org/content/default.aspx?docid=35230.

8 See, e.g., Muzaffar A. Chisti et al., America’s Challenge: Domestic Security, Civil Liberties, and National Unity

after September 11 (2003), http://www.migrationpolicy.org/pubs/Americas_Challenges.pdf; Muzaffar Chishti
and Claire Bergeron, DHS Announces End to Controversial Post -9/11 Immigration Registration and Tracking
Program (May 17, 2011), http://www.migrationinformation.org/usfocus/display.cfm?ID=840 (last visited Feb.
20, 2012).
9 See, e.g., Letter from Senator Feingold and Senator Kennedy, and Representative Conyers, Jr. to John

Ashcroft, Attorney General, U.S. Dep’t of Justice (Dec. 23, 2002), available at www.adc.org/media/press-releases/2002/december-2002/senators-and-congressman-demand-ashcroft-suspend-ins-special-registration/.

10 See, e.g., Letter from Senator Feingold and Senator Kennedy, and Representative Conyers, Jr. to John

Ashcroft, Attorney General, U.S. Dep’t of Justice (Dec. 23, 2002), available at www.adc.org/media/press-releases/2002/december-2002/senators-and-congressman-demand-ashcroft-suspend-ins-special-registration/.

11 Desis Rising Up and Moving, supra note 6.
12 Department of Homeland Security – Office of Inspector General, Information Sharing on Foreign Nationals:

37

Border Security (Redacted), at 15, available at http://www.oig.dhs.gov/assets/Mgmt/2012/OIGr_12-39_Feb12.
pdf.
13 See Id.
14 End Racial Profiling Act of 2011 S.1670, 112th Cong. (2011).
15 Keith Rushing, Coalition of Rights Groups Applaud Introduction of Bill to End Racial Profiling (Dec. 12, 2011),

http://www.rightsworkinggroup.org/content/coalition-rights-groups-applaud-introduction-bill-end-racial-profiling (last visited Apr. 10, 2012).

16 Senator Dick Durbin: Opening Statement at the Hearing on Ending Racial Profiling in America, Subcommit-

tee on the Constitution, Civil Rights, and Human Rights (Apr. 2012), http://www.judiciary.senate.gov/pdf/12-417DurbinStatement.pdf.
17 See Rights Working Group, Racial Profiling in the Name of National Security, http://www.rightsworking-group.org/sites/default/files/FactSheetNationalSecurityFinal.pdf.
18

Rights Working Group, supra note 6; American-Arab Anti-Discrimination Committee, supra note 6; Desis Rising Up and Moving, supra note 6; National Immigration Forum, supra note 6; South Asian Americans Leading
Together (SAALT), supra note 6.
19 See, e.g., AILA, supra note 7.
20 See, e.g., Muzaffar A. Chisti et al., supra note 8, at 13;

Muzaffar Chishti and Claire Bergeron, supra note 8.

21 See, e.g., Letter from Senator Feingold and Senator Kennedy, and Representative Conyers, Jr. to John

Ashcroft, Attorney General, U.S. Dep’t of Justice (Dec. 23, 2002), available at www.adc.org/media/press-releases/2002/december-2002/senators-and-congressman-demand-ashcroft-suspend-ins-special-registration/.

22 Id.
23 Press Release, Attorney General Prepared Remarks on the National Security Entry-Exit Registration System(Jun. 6, 2002), available at http://www.justice.gov/archive/ag/speeches/2002/060502agpreparedremarks.htm;
See also Registration and Monitoring of Certain Nonimmigrants, 67 Fed. Reg. 52584 (Aug. 12, 2002).

24 Penn St. Univ. Dickinson School of Law, Ctr. for Immigrants’ Rights, NSEERS: The Consequences of Ameri-

ca’s Efforts to Secure its Borders (2009), available at http://www.adc.org/PDF/nseerspaper.pdf.

25 Department of Homeland Security, DHS Removes Designated Countries from NSEERS Registration, http://

www.dhs.gov/files/publications/crcl-201105-nseers-registration-removal.shtm (last visited Mar. 7, 2012).

26 The United States has a long history of profiling based on citizenship and nationality, such as the Visa

Waiver Program. Under the INA § 217, the Visa Waiver Program allows citizens of participating countries tostay in the United States for 90 days or less without obtaining a visa. NSEERS is different from the Visa Waiver
Program in many ways. NSEERS created fear and alienation within the AMEMSA communities. Moreover, theprogram has been detrimental for many individuals, resulting in removal proceedings and the separation offamilies. Shoba Sivaprasad Wadhia, Business as Usual: Immigration and the National Security Exception, 114
Penn St. L. Rev. 1485, available at http://www.pennstatelawreview.org/articles/114/114%20Penn%20St.%20
L.%20Rev.%201485.pdf.
27 Press Release, Attorney General, Attorney General Prepared Remarks on the National Security Entry-Exit

Registration System, (Jun. 6, 2002) available at http://www.justice.gov/archive/ag/speeches/2002/060502agpr
38

eparedremarks.htm. See also Registration and Monitoring of Certain Nonimmigrants, 67 Fed. Reg. 52584 (Aug.
2002); See Penn St. Univ. Dickinson School of Law, Ctr. for Immigrants’ Rights, supra note 24.
28 Telephone Interview with Denyse Sabagh, Partner, Duane Morris, LLP (Feb. 24, 2012);

Univ. Dickinson School of Law, Ctr. for Immigrants’ Rights, supra note 24.

See also Penn St.

29 See, e.g., Chris Rickerd, Homeland Security Suspends Ineffective, Discriminatory Immigration Program (May6, 2011), available at http://www.aclu.org/blog/immigrants-rights-racial-justice/homeland-security-suspendsineffective-discriminatory (AILA’s Comments on the Interim Rule Suspending NSEERS’ Re-Registration Requirements).
30 End Racial Profiling Act of 2011, H.R. 3618, 112th Cong. (2011), available at http://www.gpo.gov/fdsys/pkg/

BILLS-112hr3618ih/pdf/BILLS-112hr3618ih.pdf; End Racial Profiling Act of 2011, S.1670, 112th Cong.(2011),
available at http://www.gpo.gov/fdsys/pkg/BILLS-112s1670is/pdf/BILLS-112s1670is.pdf. Versions of the billhave been introduced in previous Congresses.

31 Id.
32

Removing Designated Countries from the National Security Entry-Exit Registration System (NSEERS),
76 Fed. Reg. 82, 23830-23831 (Apr. 28, 2011), available at https://www.federalregister.gov/articles/2011/04/28/2011-10305/removing-designated-countries-from-the-national-security-entry-exit-registrationsystem-nseers (last visited May 9, 2012).

33 Id.
34 Department of Homeland Security, supra note 25.
35 This delisting was achieved through a Federal Register notice and did not eliminate the program’s legal

foundation. Rather, it removed the registration requirement for males from certain countries by removing thelist of countries from the program. The delisting or Federal Register notice will be referred to as “April 2011
Rule” throughout this report. For the full Federal Register notice, see Removing Designated Countries from the
National Security Entry-Exit Registration System (NSEERS), 76 Fed. Reg. at 23830-23831 (Apr. 28, 2011).

36 Id;

See American Civil Liberties Union, DHS Announces Indefinite Suspension Of Controversial And Ineffective Immigrant Registration And Tracking System (April 27, 2011), http://www.aclu.org/immigrants-rights/dhsannounces-indefinite-suspension-controversial-and-ineffective-immigrant-regist (last visited Mar. 7, 2012).
37 Removing Designated Countries from the National Security Entry-Exit Registration System (NSEERS),

76 Fed. Reg. at 23830-23831 (Apr. 28, 2011); See AILA, supra note 7; Colorlines, Channing Kennedy, After 9 Years of Pressure, DHS Finally Drops ‘SB 1070 for Muslims’ (Apr. 29, 2011) http://colorlines.com/
archives/2011/04/after_nine_years_of_pressure_dhs_finally_drops_its_sb1070_for_muslims.html (last visited Feb. 20, 2012); Muzaffar Chishti and Claire Bergeron, surpa note 8; American-Arab Anti-Discrimination
Committee, Advocacy Organizations Welcome DHS Policy Change Regarding NSEERS, http://www.adc.org/
media/press-releases/2011/april-2011/advocacy-organizations-welcome-dhs-policy-change-regarding-nseers/(last visited Mar. 4, 2012); American Civil Liberties Union, supra note 36; Muslim Public Affairs Council, MPAC
Welcomes DHS’ Suspension of National Entry-Exit Registration System, http://www.mpac.org/programs/
government-relations/mpac-welcomes-dhs-suspension-of-national-entry-exit-registration-system.php, (lastvisited Mar. 4); South Asian Network, SAN Welcomes Suspension of “Special Registration”, http://southasiannetwork.org/2011/05/02/special-registration-requirements-suspended-san-welcomes-this-partial-victory/(last visited Mar. 4, 2012); America’s Voice, DHS Announces End to National Security Entry-Exit Registration
System (NSEERS), http://americasvoiceonline.org/blog/entry/dhs_announces_end_to_national_security_entryexit_registration_system_nseer/ (last visited Mar. 4, 2012); Penn State Law Center for Immigrants’ Rights Plays
39

Role in Key Post 9/11 Policy Shift, http://law.psu.edu/news/policy_shift, (last visited Mar. 4, 2012); American
Immigration Council, DHS Removes Countries from Special Registration List, But Leaves Door Open for Future
Placements, http://immigrationimpact.com/2011/04/28/dhs-removes-countries-from-special-registration-listbut-leaves-doors-open-for-future-placements/ (last visited Mar. 4, 2012); Council on American-Islamic Relations, CAIR Welcomes DHS Decision to Drop NSEERS Program, http://www.facebook.com/note.php?note_
id=10150175544539442&comments (last visited Mar. 4, 2012); Race Matters, DHS Suspends NSEERS, http://
endnseers.blogspot.com/2011/04/dhs-has-made-huge-step-in-right.html (last visited Mar. 7, 2012).
38 See, e.g., Desis Rising Up and Moving, supra note 6.
39 American Civil Liberties Union, supra note 36.
40 Obama ’08, Blueprint For Change: Obama and Biden’s Plan for America 65 (2008), available at http://www.

barackobama.com/pdf/ObamaBlueprintForChange.pdf.

41 Hearing to Review Funding and Oversight of the Dep’t of Justice: Hearing Before the Senate Appropriations

Subcomm. On Commerce, Justice and Science, and Related Agencies, 111th Cong. (2009) (statement of Eric
Holder, Att’y General).
42 Highlights of AP’s Pulitzer-Prize Winning Probe into NYPD Intelligence Operations,dia-center/nypd/investigation.

http://www.ap.org/me-

43 See Penn St. Univ. Dickinson School of Law, Ctr. for Immigrants’ Rights, supra note 24.

This paper provided
the first comprehensive analysis of the NSEERS program. Through a legal and policy analysis of the program,it identified several issues with the program and provided recommendations for the new administration.

44 Telephone Interview with Denyse Sabagh, supra note 28.
45 See Illegal Immigration Reform and Immigration Responsibility Act of 1996 (IIRAIRA), Pub. L. No. 104-208,

110 Stat. 3009.

46 Id. at § 110.a.1, “Automated Entry-Exit Control System,” US Congressional Record – House (September 28,1996): H11787.

47 The terms alien, immigrant, and nonimmigrant, are used in this report as specified in the INA. Generally,“nonimmigrants” refer to individuals who are seeking admission to the United States temporarily for purposesof education, employment, pleasure, etc. According to § 101(a)(15), “[t]he term ‘immigrant’ means every
alien except an alien who is within one of the following classes of nonimmigrant aliens.” The term nonimmigrant is defined in the following sections of INA§101(a)(15).

48 Rey Koslowski, Real Challenges for Virtual Borders: The Implementation of US-VISIT (2005), available at

http://www.migrationpolicy.org/pubs/Koslowski_Report.pdf.

49 The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct

Terrorism Act (PATRIOT ACT) of 2001, Pub. L. 107-56, 115 Stat. 272 (2001).

50 Enhanced Border Security and Visa Reform Act of 2002, Pub. L. No. 107-173, 116 Stat. 543. The first provi-sion seen in EBSVERA required the United States Citizenship and Immigration Services (USCIS) to integrate
all of its data systems into one interoperable interagency system, employing the technology standard developed under §201 of the Act. See Enhanced Border Security and Visa Reform Act § 202. Section 201 of the
Act further required law enforcement and intelligence agencies to share information relevant to admissibility
and deportability of “aliens” within the State and the USCIS. Lastly, the Act required that USCIS issue machine40

readable, tamper-resistant visas, and other travel and entry documents that used biometric identifiers. See
Enhanced Border Security and Visa Reform Act § 201.
51 The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct

Terrorism Act (PATRIOT ACT) of 2001 § 414, Pub. L. 107-56, 115 Stat. 272 (2001).

52 Id.
53 Alan Greenblatt, Kris Kobach Tackles Illegal Immigration (Mar. 2012), http://www.governing.com/topics/

politics/gov-kris-kobach-tackles-illegal-immigration.html (last visited April 5, 2012) (“Kobach was elected Kansas secretary of state in 2010... Kobach helped draft the 2010 Arizona law that, among other things, requires
state and local enforcement officials to check the immigration status of individuals they have stopped and have“reasonable suspicion” to believe are in the country illegally... Among the policies Kobach helped devise wasthe creation of the National Security Entry-Exit Registration System, or NSEERS – a controversial program that
limited access to the country by individuals, primarily from certain Middle Eastern and North African countries,
and requires that they be fingerprinted, photographed, and interrogated.”).

54 INA § 263, 8 U.S.C. §1303 (2008).
55 Id.
56 Press Release, Attorney General, Attorney General Prepared Remarks on the National Security Entry-Exit

Registration System (Jun. 6, 2002), available at http://www.justice.gov/archive/ag/speeches/2002/060502agpr
eparedremarks.htm. See also Registration and Monitoring of Certain Nonimmigrants, 67 Fed. Reg. 52584 (Aug.
2002); See Penn St. Univ. Dickinson School of Law, Ctr. for Immigrants’ Rights, supra note 24.
57 Press Release, Attorney General, supra note 56. See also Registration and Monitoring of Certain Nonimmi-

grants, 67 Fed. Reg. 52584 (Aug. 12, 2002).

58 See Department of Homeland Security, Fact Sheet: Changes to National Security Entry-Exit Registration

System (Dec. 1, 2003) (on file with author), available at http://www2.gtlaw.com/practices/immigration/
news/2003/12/01a.pdf.
59 67 Fed. Reg. 66765-68 (Nov. 6, 2002); 68 Fed. Reg. 2366-67 (Jan. 16, 2003).
60 67 Fed. Reg. 70525-28 (Nov. 22, 2002); 68 Fed. Reg. 2366-67 (Jan. 16, 2003).
61 67 Fed. Reg. 77642-44 (Dec. 18, 2002); 68 Fed. Reg. 8046-48 (Feb. 19, 2003).
62 68 Fed. Reg. 2363-65 (Jan. 16, 2003); 68 Fed. Reg. 8046-48 (Feb. 19, 2003).

63 See Hearing on Ending Racial Profiling in America, Subcommittee of the Constitution, Civil Rights and Hu-

man Rights (Apr. 2012) (testimony of David A. Harris, Faculty Scholar and Associate Dean for Research, University of Pittsburgh School of Law), available at http://www.judiciary.senate.gov/pdf/12-4-17HarrisTestimony.
pdf; see Hearing on Ending Racial Profiling in America, Subcommittee of the Constitution, Civil Rights and Human Rights (Apr. 2012) (testimony of the American Immigration Lawyers Association), available at http://www.
aila.org/content/default.aspx?docid=39267.
64 AILA, AILA’s Comments on the Interim Rule Suspending NSEERS’ Re-Registration Requirements, (Feb. 2,

2004), http://www.aila.org/content/default.aspx?bc=1016%7C6715%7C8921%7C18602%7C10002.

65 Press Release, Attorney General, supra note 56. See also Registration and Monitoring of Certain Nonimmi-

grants, 67 Fed. Reg. 52584 (Aug. 12, 2002).

41

66 Id.
67 67 Fed. Reg. 67766 (Nov. 6, 2002).
68 Id; 8 C.F.R. § 264.1(f)(8)(ii).
69 67 Fed. Reg. 67766 (Nov. 6, 2002).
70 67 Fed. Reg. 67766 (Nov. 6, 2002).
71 In describing the late registration one young man, attorney Denyse Sabagh recounted: “[I] explained againthat this young man had no reason not to register, he was in valid status, had just turned 17, didn’t speak
English, was trying to deal with a new high school in the US and had he known about Registration, he would
have registered. The agents said it was no excuse. They said absent catastrophic illness or jail, there was not avalid excuse. I explained that is not a correct standard. They had to determine if it was “willful.” They said thatno one would be a “willful” violator if all they had to say was they didn’t know. I explained that each person
was judged on his own circumstances.” See Denyse Sabagh, Commentary on Late NSEERS Registration from
Shoba Sivaprasad Wadhia, Penn State Law’s Center for Immigrants’ Rights (Nov. 19, 2009), http://endnseers.
blogspot.com/2009/11/commentary-on-late-nseers-registration.html.
72 INA § 266 (a); 8 U.S.C. § 1306(a)(2008); Penn St. Univ. Dickinson School of Law, Ctr. for Immigrants’

Rights, supra note 24.

73 68 Fed. Reg. 67578 (Dec. 2, 2003).
74 See Department of Homeland Security, supra note 58.
75 See William J. Howard, Exercising Prosecutorial Discretion to Dismiss Adjustment Cases (Oct. 6, 2005), avail-able at http://www.aila.org/content/default.aspx?bc=1016%7C6715%7C8412%7C18465%7C17718.

76 Shoba Sivaprasad Wadhia, Prosecutorial Discretion and Post 9/11, RACE MATTERS (Dec. 8, 2011), http://

endnseers.blogspot.com/2011/12/prosecutorial-discretion-and-post-911.html (last visited Mar. 8, 2012).

77 The NTA contains the nature of the removal proceedings, the legal authority under which the proceedings

are conducted, the acts or conduct alleged to be in violation of the law, as well as the immigration charges
against the individual. See INA § 239(a).
78 See William J. Howard, supra note 75.
79 Telephone Interview with Seth Kaper-Dale, supra note 1.
80 76 Fed. Reg.23830, 23831 (Apr. 28, 2011).

81 Leslie Berestein Rojas, The End of NSEERS, One of the Most Contentious Post-9/11 National Security Pro-

grams (Jan. 30, 2012), http://multiamerican.scpr.org/2011/05/the-end-of-nseers-one-of-the-most-contentiouspost-911-national-security-programs/ (last visited Feb. 19, 2012).

82 See John Morton, Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Pri-orities of the Agency for the Apprehension, Detention, and Removal of Aliens, U.S. Immigration and Customs
Enforcement (June 17, 2011), available at http://www.ice.gov/doclib/secure-communities/pdf/prosecutorialdiscretion-memo.pdf; see John Morton, Prosecutorial Discretion: Certain Victims, Witnesses, and Plaintiffs
42

(June 17, 2011), available at http://www.ice.gov/doclib/secure-communities/pdf/domestic-violence.pdf; see
Shoba Sivaprasad Wadhia, Morton Memo and Prosecutorial Discretion (2011), available at http://www.immigrationpolicy.org/sites/default/files/docs/Shoba_-_Prosecutorial_Discretion_072011_0.pdf.
83 See John Morton, Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement

Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens, U.S. Immigration and Customs Enforcement, supra note 82 (“When weighing whether an exercise of prosecutorial discretion may be
warranted for a given alien, ICE officers, agents, and attorneys should consider all relevant factors, including
but not limited to – the agency’s civil immigration enforcement priorities; the person’s length of presence inthe United States, with particular consideration given to presence while in lawful status; the circumstances ofthe person’s arrival in the United States and the manner of his or her entry, particularly if the alien came to theUnited States...The following positive factors should prompt particular care and consideration: veterans andmembers of the U.S. armed forces; long-time lawful permanent residents; minors and elderly individuals; individuals present in the United States since childhood; pregnant or nursing women; victims of domestic violence,trafficking, or other serious crimes; individuals who suffer from a serious mental or physical disability; individuals with serious health conditions. In exercising prosecutorial discretion in furtherance of ICE’s enforcement
priorities, the following negative factors should also prompt particular care and consideration by ICE officers,
agents, and attorneys: individuals who pose a clear risk to national security; serious felons, repeat offenders,or individuals with a lengthy criminal record of any kind; known gang members or other individuals who posea clear danger to public safety; and individuals with an egregious record of immigration violations, including
those with a record of illegal re-entry and those who have engaged in immigration fraud.”).

84 See telephone interview with Reverend Seth Kaper-Dale, supra note 1.
85 See USCIS, USCIS Memorandum, Revised Guidance for the Referral of Cases and Issuance of Notices to Ap-

pear (NTAs) in Cases Involving Inadmissible and Removable Aliens (Nov. 7, 2011), available at http://cis.org/
sites/default/files/new%20guidance.pdf.

86 Letter from Shoba Sivaprasad Wadhia to Margo Schlanger, DHS Officer for Civil Rights and Kelly Ryan, Acting

Deputy Assistant Secretary for Policy (November 15, 2011), available at http://www.aila.org/content/default.
aspx?docid=37674.
87 Department of Homeland Security – Office of Inspector General, supra note 12.
88 Rights Working Group, We Applaud the Department of Homeland Security (DHS) Office of Inspector Gen-eral’s (OIG) recommendation to fully terminate controversial National Security Entry Exit Registration System(NSEERS) (Mar. 20, 2012), http://www.rightsworkinggroup.org/content/we-applaud-department-homelandsecurity-dhs-office-inspector-general’s-oig-recommendation-fu (last visited Apr. 24, 2012).

89 Department of Homeland Security – Office of Inspector General, supra note 12,
90 Telephone Interview with James Zogby, President, The Arab American Institute (Mar. 9, 2012).
91 See Shoba Sivaprasad Wadhia, Letter to DHS Secretary Regarding Unfinished Work Around NSEERS (May18, 2011), available at http://endnseers.blogspot.com/2011/05/letter-to-dhs-secretary-regarding.html (Last
visited Mar. 8, 2012).
92 Prena Lal, NSEERS Lands Pakistani-American Youth In Detention, Deportation Looming, SAALT (Jan. 1,

2012), http://blog.saalt.org/?p=1949.

93 Leslie Berestein Rojas, supra note 81.

43

94 Dick Durbin, Senator Dick Durbin: Opening Statement at the Hearing on Ending Racial Profiling in America,

Subcommittee on the Constitution, Civil Rights, and Human Rights (Apr. 2012), available at http://www.judiciary.senate.gov/pdf/12-4-17DurbinStatement.pdf.

95 See Rights Working Group, Racial Profiling: Face the Truth, http://www.rightsworkinggroup.org/content/

racial-profiling-face-truth-0 (last visited Feb. 26, 2012); Rights Working Group, supra note 17; Leadership Conference on Civil Rights and Education Fund, Wrong Then, Wrong Now: Racial Profiling Before & After September 11, 2001, available at http://www.civilrights.org/publications/wrong-then/racial_profiling_report.pdf.
96 Asian Pacific Americans for Progress, Racial Profiling: Degrading, Unconstitutional, and Ineffective, http://

www.apaforprogress.org/racial-profiling-degrading-unconstitutinal-and-ineffective (last visited Feb. 27, 2012).
97 American Civil Liberties Union and The Rights Working Group, The Persistence of Racial and Ethnic Profilingin the United States (2009), available at http://www.aclu.org/pdfs/humanrights/cerd_finalreport.pdf.

98 Hearing on “Ending Racial Profiling in America” Before the Subcommittee of the Constitution, Civil Rights

and Human Rights (2012) (testimony of David A. Harris, Faculty Scholar and Associate Dean for Research, University of Pittsburgh School of Law), available at http://www.judiciary.senate.gov/pdf/12-4-17HarrisTestimony.
pdf.
99 Shoba Sivaprasad Wadhia, Business As Usual: Immigration and the National Security Exception, 114 Penn

St. L. Rev. 1485 (2010). DHS denied that NSEERS was a program based on racial or religion profiling and tosupport this position, indicated that the POE registration was applied to visitors from 150 countries. DHS’
rationale ignores the country-specific design of the “call in” registration program, the inevitable application of
NSEERS to large groups of Muslim boys and men to future exits and entries, and the perception by affectedindividuals, advocates and foreign leaders around the world that NSEERS was discriminatory; Department ofHomeland Security, Fact Sheet: Changes to National Security Entry-Exit Registration System (Dec. 1, 2003) (onfile with author), available at http://www2.gtlaw.com/practices/immigration/news/2003/12/01a.pdf

100 Matt Apuzzo, NYPD Muslim Spying: The Legal and Policy Issues Raised by Widespread Surveillance, HUFF-

INGTON POST, Mar. 12, 2012, http://www.huffingtonpost.com/2012/03/12/nypd-muslim-spying-the-legal-andpolicy-issues-raised-by-surveillance-qa_n_1338765.html (last visited Apr. 5, 2012). See also Highlights of AP’s
Pulitzer-Prize Winning Probe into NYPD Intelligence Operations, http://www.ap.org/media-center/nypd/investigation.

101 American Civil Liberties Union, Mapping the FBI: Uncovering Abusive Surveillance and Racial Profiling,

http://www.aclu.org/mapping-fbi-uncovering-abusive-surveillance-and-racial-profiling.

102 Telephone Interview with Seth Kaper-Dale, supra note 1.
103 Mary Snow, New Jersey Church, ‘Safe Haven’ for Indonesian Immigrant, CNN, http://inamerica.blogs.cnn.

com/2012/03/20/new-jersey-church-safe-haven-for-indonesian-immigrant/ (last visited Apr. 20, 2012).
104 Id.
105 Telephone Interview with Seth Kaper-Dale, supra note 1.

106 See Nina Bernstein, Church Works with U.S. to Spare Detention, N.Y. Times, Dec. 13, 2009, at A1, available

at http://www.nytimes.com/2009/12/13/nyregion/13indonesians.html?pagewanted=all.
107 Telephone Interview with Seth Kaper-Dale, supra note 1.

44

108 Desis Rising Up and Moving, supra note 6.
109 Email Interview with Mirwan Harahap, supra note 2.
110 Shoba Sivaprasad Wadhia, 9/11 Registration and the Morton Memo (July 14, 2011), http://lawprofessors.

typepad.com/immigration/2011/07/911-registration-and-the-morton-memo-by-.html (last visited Mar. 7, 2012).

111 J. Howard, supra note 75 and John Morton, Exercising Prosecutorial Discretion Consistent with the Civil Im-

migration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens, U.S.
Immigration and Customs Enforcement, supra note 82.

112 See Id (“Impact on Communities”).
113 Nathan Pippenger, Broken Promises: How Obama’s Immigration Failures Have Put a New Jersey Community

on Edge, THE NEW REPUBLIC, Mar. 2, 2012, at http://www.tnr.com/article/politics/101307/immigration-indonesians-new-jersey, (last visited Mar. 7, 2012) andKirk Semple, Canceling Stay, U.S. Orders 72 Indonesians in New Jersey to Leave, N.Y. TIMES, Dec. 26, 2011,at A26, available at
http://www.nytimes.com/2011/12/07/nyregion/us-tells-72-indonesians-in-new-jersey-to-leave.html?_r=1.
114 Telephone Interview with Seth Kaper-Dale, supra note 1.
115 See e.g., Sarah Stuteville, Trouble in Little Pakistan (May 26, 2004), available at http://www.indypressny.

org/nycma/voices/119/briefs/briefs_1/ (last visited Feb. 27, 2012).
116 See Department of Homeland Security, supra note 58.
117 See Id.

118 Department of Homeland Security – Office of Inspector General,supra note 12.
119 Christopher J. Einolf and Luke Hall, Inconsistency, Confusion, and Chaos: Experiences with Call-in Special

Registration (Apr. 15, 2003), available at http://www.ailf.org/lac/chdocs/lac_sr_report_041503.pdf.
120 Telephone Interview with Denyse Sabagh, supra note 28.
121 Telephone Interview with James Zogby, President,

The Arab American Institute, supra note 90

122 NYU School of Law Center for Human Rights and Global Justice and the Asian American Legal Defense and

Education Fund, Under the Radar: Muslims Deported, Detained, and Denied on Unsubstantiated Terrorism Allegations, available at http://www.chrgj.org/projects/docs/undertheradar.pdf (last visited Mar. 8, 2012).
123 Joint Press Release, American-Arab Anti- Discrimination Committee and Yale Law School, ICE Target Im-

migrants from Muslim Majority Countries Prior to 2004 Presidential Election (Oct. 20, 2008), available at http://
www.adc.org/PDF/frontline.pdf.
124 Letters from American-Arab Anti-Discrimination Committee, Letter/Complaint and Request for Investiga-

tion into Operation Frontline, to Timothy Keefer, Acting Officer, Office for Civ. Rights and Civ. Liberties (Feb. 26,
2009), available at http://www.adc.org/PDF/frontlinecomplaint.pdf.

125 Department of Homeland Security – Office of Inspector General, supra note 12.
126 Department of Homeland Security – Office of Inspector General, supra note 12.

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127 Letter from Margo Schlanger, DHS Officer, Civil Rights and Civil Liberties, addressing end of NSEERS (Apr.

27, 2011), available at http://law.psu.edu/_file/Immigrants/NSEERS_Schlanger_Memo.pdf.
128 Customs and Border Protection, Important NSEERS Information,

http://www.cbp.gov/xp/cgov/travel/id_visa/nseers/imp_nseers_info.xml (last visited Mar. 8, 2012).

129 The Constitution Project, The Use and Abuse of Immigration Authority as a Counterterrorism Tool: Consti-

tutional and Policy Considerations (2008), available at http://www.constitutionproject.org/pdf/Immigration_Authority_As_A_Counterterrorism_Tool.pdf.
130 Doris Meissner and Donald Kerwin, DHS and Immigration: Taking Stock and Correcting Course (Feb. 2009),

available at www.migrationpolicy.org/pubs/DHS_Feb09.pdf.

131 Penn St. Univ. Dickinson School of Law, Ctr. for Immigrants’ Rights, supra note 24 andLetter from American-Arab Anti-Discrimination Committee, Letter and Request for Removal of new Security Devices, to Janet Napolitano, Secretary, Department of Homeland Security (January 8, 2010), available at http://
saalt.org/attachments/1/TSA%20Profiling%20Letter.pdf.

132 Response Letter from Donald H. Kent, Asst. Secretary for Leg. and Intergovernmental Affairs, to Senator

Richard J. Durbin, (Apr. 25, 2007) (on file with the Director for the Center of Immigrants’ Rights at Penn State
University, The Dickinson School of Law) (requesting update on NSEERS program. Certain responses to questions are not contained within the letter due to law enforcement sensitivity).
133 Muzaffar Chishti and Claire Bergeron, supra note 8.
134 Removing Designated Countries from the National Security Entry-Exit Registration System (NSEERS), 76

Fed. Reg. 82, 23830-23831 (Apr. 28, 2011); See American Civil Liberties Union, supra note 36.
135 Department of Homeland Security – Office of Inspector General, supra note 12.
136 Telephone Interview with Denyse Sabagh, supra note 28.

137 Department of Homeland Security, Guidance on Treatment of Individuals Previously Subject to the Report-

ing and Registration Requirements of the National Security Entry and Exist Registration System (Apr. 16, 2012),
available at https://law.psu.edu/_file/NSEERSMemoPublic.pdf.
138 Telephone Interview with Seth Kaper-Dale, supra note 1.
139 Beyond the scope of this report, but nonetheless important, is the efficacy of these other programs.

As theDHS OIG points out in its 2012 report, the number one recommendation following its evaluation of the program is to “fully terminate the National Security Entry-Exit Registration System and reinstate the prior provisions.” Department of Homeland Security – Office of Inspector General, supra note 12.
140 End Racial Profiling Act of 2011 H.R. 3618 (2011) and End Racial Profiling Act of 2011 S.1670 (2011).
141 Keith Rushing, supra note 15.

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