INS Detains Hundreds of Nonimmigrant Aliens Reporting to “Special Registration”

In the last few weeks, hundreds of nonimmigrant aliens properly reporting to the Immigration and Naturalization Service (“INS”) in response to a “special registration” mandate found themselves detained by the INS for several days without advance notice and under inhumane conditions — in spite of demonstrable eligibility for lawful permanent residence through family or employer petitions.

The INS arrested these nonimmigrant aliens without warrants, alleging that the individuals pose flight risks. The INS placed detainees in small jail cells in which, due to lack of adequate bed space, they were forced to sleep on the floor. The INS also failed to provide food, medicine, and bathing facilities to the detainees, and in many cases, forced the detainees to participate in strip-searches in the presence of other detained individuals. After several days’ detention, the INS set bond ranging between $1500 to several thousand of dollars for some nonimmigrants, while ordering some detainees deported from the United States in summary removal proceedings. Outraged by the INS’ treatment of nonimmigrant aliens who were simply complying with the new law and by the unconstitutional implementation of the special registration program, immigration attorneys throughout the country are filing lawsuits against the U.S. Attorney General (John Ashcroft) and the INS.

The special registration mandate— formally codified as “Special Registration Procedures for Certain Nonimmigrants”—is rooted in post-9/11 terrorist fears. Several months ago, Congress enacted this legislation to compel certain nonimmigrant aliens from designated countries to register with the INS, in the belief that the procedures would help prevent future terrorist attacks by identifying and registering nonimmigrant aliens from countries with suspected terrorist ties.

Under the special registration process, certain nonimmigrant aliens are directed to appear before the INS “to notify the Attorney General of the current addresses and furnish such additional information as the Attorney General may require.” The current regulations require males, age 16 years and older, citizens or nationals of countries periodically designated by the Attorney General, to report to their local INS office according to particular deadlines. (For special registration purposes, citizenship or nationality includes country of birth; thus, a person born in a designated country but is a citizen of a non-designated country must still report to INS.) At the interview, the INS will request evidence of identity, current nonimmigrant status, residence, intent of stay in U.S., and other related matters. Nonimmigrants reporting to the INS do not require an appointment to register (they are advised to arrive early in the morning), and are advised to bring an attorney with them.

Nonimmigrant aliens determined to be “in status” are registered and released. However, if at the special registration interview the INS officer determines that the nonimmigrant alien is “out of status,” the alien will be forwarded to the “investigations” stage for additional questioning and examination. According to immigration attorneys throughout the U.S., results of investigations have varied significantly between the INS offices. Individuals with pending petitions or are INA §245(i)-eligible are sometimes released, while others similarly situated have been detained for several hours to several days then released with bond. In other instances, immigration attorneys have reported that aliens who lack legal status (though they may have a pending petition or application) have been issued Notices to Appear (NTA’s) and ordered removed from the U.S.. The INS office in Los Angeles reportedly arrested about 700 nonimmigrant aliens it determined were in violation of their immigration status, far surpassing the number of individuals arrested at any other INS office in the country.

In consultation with the Secretary of State, the Attorney General determines which nonimmigrant aliens from designated countries must register and provide specific information to the INS. Nonimmigrant nationals or citizens of the following countries have been mandated by the Attorney General to register so far: Afghanistan, Algeria, Bahrain, Eritrea, Iran, Iraq, Lebanon, Libya, Morocco, North Korea, Oman, Pakistan, Qatar, Saudi Arabia, Somalia, Sudan, Syria, Tunisia, United Arab Emirates, and Yemen. The Attorney General also recently named Armenia, but for unknown reasons, retracted that country from the special registration list the following day.

Additional countries from Europe, Asia, and Africa will be selected in the following months, and there is speculation that the Attorney General will require nonimmigrant aliens from the Philippines to participate in special registration. The Attorney General notifies the public of newly selected countries through publication of the Federal Register, and sets a deadline by which nonimmigrant aliens from these countries must register with their local INS.

Certain nonimmigrant aliens are currently exempt from special registration, including diplomats or other individuals admitted under A or G visas; lawful permanent residents and other immigrant aliens, such as refugees; and asylum applicants and grantees. Additionally, the special registration regulation provides for possible “relief” from obligation to register in individual cases. Specifically, a nonimmigrant who is subject to special registration can may apply to the district director or other designated official for such relief. However, the regulation is not clear what criteria will be considered for authorizing relief from special registration. Furthermore, the decision of the official regarding an application for such relief is final and not appealable.

The INS has stated that if nonimmigrant males from designated countries fail to comply with the special registration requirements, they will be considered out of status. The INS warns that these individuals are also subject to arrest, detention, fines, and/or removal from the U.S., and any future application for an immigration benefit from the U.S. may be affected adversely. The INS also stated that decisions will be made on an individual basis, dependent on the circumstances of each case. Nonimmigrant aliens who are not subject to special registration are still obliged to inform the INS of their current residential address, through Form AR-11SR.

This area of immigration law is still highly uncertain and complex, as the related procedures are relatively new, and several lawsuits are now pending regarding the possible unconstitutionality of these policies. Specifically, some of the lawsuits contend that, under the guise of identifying terrorists, the INS is using special registration to arrest individuals who are pursuing legal means toward permanent residence, despite their unlikelihood of fleeing and lack of threat to national security. Furthermore, the lawsuits argue that special registration is unconstitutional because it appears to target nonimmigrants by race, religion or national origin, and it allows the unlawful removal of and denial of release on bail or recognizance to certain applicants for certain lawful resident status.

If you believe that you are under obligation to report to the INS for special registration, require additional details of your obligation to register, or have been affected by INS’ implementation of special registration, consult a reputable and experienced immigration attorney for assistance in these matters.