Recent Developments Regarding Special Registration Procedures for Certain Nonimmigration

The mass arrests which took place in Los Angeles prior to the first “special registration” deadline of December 16, 2002 incited widespread protest among immigrant rights organizations and have garnered increasing media attention. The public outcry and subsequent litigation challenging the detentions appear to have somewhat subdued the Immigration and Naturalization Service (INS) with regard to conducting mass warrantless arrests, although detentions have continued on a more limited basis with reports varying widely depending on jurisdiction.

Fourth Special Registration Group Announced
The special registration program is clearly proceeding forward as evidenced by the most recent Federal Register Notice of January 16, 2003 (AG Order No. 2643-2003) designating a fourth special registration group. This group includes certain nonimmigrant males over 16 years of age who are citizens or nationals of Bangladesh, Egypt, Indonesia, Kuwait, and Jordan who entered the US on or before September 30, 2002 and who will remain in the US after March 28, 2003. This group must register between the dates of February 24, 2003 and March 28, 2003.

Another Chance for Late Registrants
While there has been some uncertainty regarding the consequences faced by those who failed to timely register for the previous deadlines and planned to register late, the Federal Register Publication of January 16, 2003 brought good news in the form of AG Order No. 2645-2003: “Permission for Certain Nonimmigrant Aliens from Designated Countries to Register in a Timely Fashion”. The order reopens the registration periods for the first two groups, allowing those required to register from Afghanistan, Algeria, Bahrain, Eritrea, Iran, Iraq, Lebanon, Libya, Morocco, North Korea, Oman, Qatar, Somalia, Sudan, Syria, Tunisia, United Arab Emirates, or Yemen to register between the dates of January 27, 2003 and February 7, 2003. Registration during this time period will be considered timely. The notice states that this reopening of the registration period is a discretionary “act of grace” on the part of the Attorney General, caused in part by indications that members of these groups were previously unaware of the registration requirements. Many civil rights and immigrant rights organizations as well as the media have raised the issue of lack of notice when criticizing the special registration program, especially in light of the perceived harsh immigration consequences of failing to register.

Third Special Registration Group Deadline Approaches
The deadline for the third special registration group is February 21, 2003. This group includes certain male citizens and nationals of Pakistan and Saudi Arabia who entered the United States on or before September 30, 2002 and who will remain in the United States after February 21, 2003. More countries are expected to be designated for special registration in the coming months.

Legal Challenges to Special Registration
Due to public protest over the mistreatment by the INS of those who came forward to comply with the special registration program, numerous organizations and law firms have challenged the seemingly unjust, arbitrary and racist nature of the policy, as well as the alleged unlawful actions taken by the INS.

On December 12, 2002 two Southern California immigration attorneys filed a complaint on behalf of 10 Iranian nationals in the U.S. District Court in Santa Ana, seeking a temporary restraining order barring the government from continuing its registration policy. Momtazian v. Ashcroft, SAV02-1140 (C.D. Cal. Filed Dec. 12, 2002). Many of the plaintiffs were awaiting or had been granted asylum and were taken into immigration custody when they voluntarily reported to register. The suit alleged that the INS was detaining people without notice of charges, a speedy arraignment, or bond hearings. On January 26, 2002 a Federal Judge in Santa Ana, Alicemarie H. Stotler, dismissed the lawsuit ruling that the plaintiffs had not met their burden of proof and that the federal court lacked jurisdiction to interfere with the registration program.

A second lawsuit was filed in Federal Court in Los Angeles on December 24, 2002 by attorneys with the Center for Human Rights and Constitutional Law, the American-Arab Anti-Discrimination Committee (ADC) and numerous other organizations and law firms. Plaintiffs named in the complaint included six individuals subject to special registration as well as the ADC and three other organizations. The Attorney General and the INS were named as defendants.

The suit claimed that on Dec. 16-18, 2002, the INS unlawfully arrested large numbers of people, especially in Los Angeles, as they came forward to comply with new “special registration” requirements. Plaintiffs claimed that the detentions were illegal because the government did not obtain necessary arrest warrants and that is unlawful to deport people with adjustment of status applications pending who have complied with the law. Plaintiffs also claimed detainees were held without bail or bond and were subject to deportation without due process, and that fear of mass arrests will undermine future compliance with the program.

Plaintiffs sought an injunction ordering the government to cease unlawful arrests and prevent the unlawful removal of detainees without due process. They also sought a declaratory judgment that the special registration policies violated the Immigration and Nationality Act, the Due Process Clause and the equal protection guarantees of the Fifth Amendment. On January 9, 2003, Federal Judge Alicemarie H. Stotler denied the complaint on the grounds that the immigration officials have broad discretion to enforce immigration laws, including the special registration program. She was the same judge who had denied the previous challenge. Peter Schey, lead attorney for plaintiffs, has stated that he plans an appeal, emphasizing that the suit does not seek to challenge to entire program, but to target specific aspects that clearly violate US immigration laws as well as the constitution.

As the special registration program continues to expand it is important that those subject to the requirements or those who believe they might be subject in the future seek knowledgeable legal advice. While legal challenges have been filed against the program, success in this regard remains elusive. Policy implementation continues to vary from district to district and new countries are expected to be added in the following months as the program evolves. On March 1, 2003, when jurisdiction over the program is transferred to the Homeland Security Department, more change is likely to occur. Due to continued change and uncertainty regarding the special registration program, it is important that those affected remain informed and seek legal advice.