The New York Immigration Coalition
275 Seventh Avenue, 9th Floor
New York, NY 10001
Tel: (212) 627-2227
Fax: (212) 627-9314
Testimony by Karin Anderson, Policy and Training Associate
New York Immigration Coalition, before the
U.S. Commission on Civil Rights.
Good afternoon. My name is Karin Anderson and I serve as a Policy and Training Associate at the New York Immigration Coalition (NYIC) an umbrella policy and advocacy organization for more than 150 member groups in New York that work with immigrants and refugees. The NYIC also coordinates the Special Registration legal assistance project, a collaborative with community organizations and legal services groups. The project has assisted over 800 individuals through legal clinics offering individual advice for individuals subject to special registration requirements.
This testimony discusses problems with the special "call-in" registration program. The call-in program is one of two types of registration implemented by the Department of Justice. This testimony explains the difference between the two types of registration, describes the call-in program in detail and explains the myriad problems attendant to the special call-in registration program and as the impact of the program on New York's immigrant communities continues.
On August 12, 2002 the Department of Justice issued a final rule requiring that certain non-citizens were subject to registration upon the order of the Attorney General. Two separate types of registration were established, one for aliens entering the U.S. as non-immigrants after September 2002 and the other for those who had entered as non-immigrants prior to that date. Those entering afterward are first registered at the port of entry, where they are required to give their address in the U.S., a travel plan, and a statement of intent regarding the trip. Those registered at the airport are required to re-register at the local INS/BCIS office 30-40 days after entry, and thereafter annually at the anniversary of the initial entry. Those individuals who had entered the U.S. prior to September 30, 2002 (i.e., entered before port of entry registration was operative) are subject to "call-in" registration, which requires them to register at local INS/BCIS offices by a certain date. Both types of registrants were further required to submit to an exit interview upon departure. Such individuals can leave the U.S. only through specified ports, designated to provide exit interviews. Failure to register or making false statements or submitting false information at registration are crimes punishable by fines and prison, or both, and leading to deportation and future inadmissibility. This testimony is limited to the special call-in registration program.
The call-in registration program required men 16 years of age or older, who entered the U.S. on a nonimmigrant visa prior to certain date in September 2002, to appear at a local INS office to be registered. Four sets of call-in group were announced: Group 1, Iran, Iraq Libya, and Sudan; Group 2, Afghanistan, Algeria, Bahrain, Eritrea, Lebanon, Morocco, North Korea, Oman, Qatar, Somalia, Tunisia, United Arab Emirates, Yemen; Group 3, Pakistan and Saudi Arabia; Group 4, Bangladesh, Egypt, Indonesia, Jordan and Kuwait. Persons from these countries who were U.S. citizens, lawful permanent residents, parolees, and asylees or refugees (or with asylum applications filed or pending) were not required to register. The Group 1 deadline was January 10, 2003 and the Group 2 deadline was February 7, 2003. Group 1 and 2 deadlines were extended to February 21, 2002 because of errors in INS Arabic language announcements of the program. The Group 3 deadline was originally February 21, 2002, but was extended to March 21, 2003. The Group 4 deadline, originally March 28, 2003, was also extended, to April 25, 2003.
At the New York District office, the registration process itself was comprised of two parts. First, the registrant was to appear at the Special Registration Unit, Room 310 at 26 Federal Plaza. He signed in at the door, turned in his passport and Form I-94, took a number and waited to be called. When this room, with a capacity of approximately 200, filled, INS officers made announcements that people should move into an adjacent room, with a capacity of about 100, to make more space. An INS/BCIS officer called out names and those called went to bank-teller type windows for the first stage of the interview. They were first informed that they would be giving testimony under oath. They then were asked a series of questions about themselves: identifying information, marital status, their reasons for being in the U.S., manner of entry into U.S., information about family members in the U.S. and overseas, as well as information about schools and employers. Registrants were also asked questions about their religious beliefs and practices. They were also required to produce any credit cards and the officer took down the card numbers. They were fingerprinted and the prints run for security and criminal checks.
Registrants whose visa status was clear and who had no criminal record were allowed to leave after the first interview. Those whose visa had expired, was unclear, or who had a criminal record were referred to the investigations unit on the 10th floor. Referred registrants waited another several hours for the 10th floor investigations interview. On the 10th floor, registrants were further questioned, in interview rooms across the hall from cells holding detained registrants. These questions were also under oath and in addition, the registrant often had to make a sworn statement. They were also asked whether they waived a hearing, wanted to see an immigration judge or if they feared returning to their country. Many were held in cells for hours or overnight waiting for their cases to be processed before being released. Those with final orders of removal or outstanding criminal warrants continue to be detained pending deportation.
The special call-in registration program suffered from fundamental flaws in its design. The most serious flaw in the program's design was its use of nationality-based profiling in determining whom to register. A fundamental principle of American democracy and the Constitution is that all persons should be treated equally, without regard to race, religion, ethnicity, gender, or national origin. Special registration violated this important guiding principle by indiscriminately targeting persons from Arab, Muslim and South Asian countries on the basis of their nationality. Rather than focusing limited agency resources on trying to develop specific and credible leads as to possible terrorists through quality investigative and intelligence work, special registration by design succeeded only in adding more hay to the proverbial haystack. Many law enforcement officials long ago realized that broad-based profiling methods that target persons based on characteristics such as race or nationality are ineffective law enforcement tools. Unfortunately, Justice Department officials ignored those time-tested lessons. It is apparent, however, that many government officials do understand the inefficacy and undesirability of nationality-based profiling. Homeland Security Undersecretary Asa Hutchinson was quoted in The New York Times on May 20 as stating, "the more we are able to identify people and assess them based on their individual traits, the less dependent we are on broad, general categories such as national origin." Immigration enforcement policies need to incorporate the understanding that broad-based nationality profiling simply does not work.
Another major problem with the design of the special call-in registration program was that it did not give any consideration to the problems inherent in trying to implement such a large-scale enforcement program, especially in light of limited agency resources. Special call-in registration was one of the largest immigration enforcement initiatives ever undertaken. The INS district offices that were charged with implementing the program simply did not have the staffing and other resources needed in order to timely process the large numbers of registrants who appeared at INS offices. Immigration adjudication officers had to be pulled away from their normal duties and diverted to help deal with special call-in registration. As a consequence, the processing of immigration applications suffered tremendously, adding to an already formidable backlog of cases. Such problems and the enormous strain placed on agency staff could have been averted had special call-in registration not resorted to indiscriminate nationality-based profiling.
Not surprisingly, special call-in registration has failed as a national security strategy. From the moment the program was first announced, it was clear that special call-in registration was not going to help the government identify and locate terrorists, simply because terrorists were not going to simply present themselves to federal authorities on their own volition. According to the Bureau of Immigration and Customs Enforcement, the number of people charged with terrorism-related crimes as a result of special call-in registration is zero. But even with regard to the goal of enabling the government to identify who is in the United States, special call-in registration was a failure. It failed because the government used the program as a vehicle for seizing and punishing undocumented immigrants, even as these persons tried to comply in good faith with the law. The punitive approach did not serve the program?s goals well. As word spread throughout the impacted immigrant communities that large numbers of men were being detained and/or put in deportation proceedings, fewer of those subject to registration were showing up to register. The program would have better achieved its national security goals by encouraging and allowing people to register with assurances that registrants complying in good faith would not face drastic penalties for minor immigration violations.
Finally, the flawed design of special call-in registration created unnecessary hardship for tens of thousands of decent and hardworking immigrant families, many of which are mixed-status households where some family members may be U.S. citizens or lawful permanent residents. For example, we are aware of numerous cases in which the men who appeared for special registration have U.S. children and lawful permanent resident spouses who have filed immigration paperwork on behalf of the registrant. Many registrants were on the road to lawful permanent residence, with petitions filed on their behalf that made them eligible to eventually apply for green cards under section 245(i). Such persons never should have been caught up in the dragnet of special call-in registration.
The flaws in the design of special call-in registration were exacerbated by the plethora of implementation problems that riddled the program. Implementation problems such as due process violations, intimidation tactics, poor detention conditions, and inconsistency and sloppiness characterized the outcome of an ill-conceived program created without having given due consideration to the many problems inherent in trying to implement among the largest enforcement actions ever undertaken by the immigration authorities.
The entire special registration process was characterized by denial of due process rights, beginning with notice of the new requirement and continuing with registration procedures at INS/BCIS offices. First, call-in registration was announced initially only through the Federal Register and later on the INS/BCIS web site. The government position, stated in the final rule, was that that announcement in the Federal Register was legally sufficient notice. The government conceded that, "the efficacy of the law is more assured when those subject to the law have actual notice of its terms," and indicated it would publicize the new requirement more broadly than was required by law. However, the government indicated that the burden was ultimately on the impacted immigrant to educate himself, stating, "It is the individual's responsibility to know the law." The government provided "actual notice" by posting information about special registration on the INS/BCIS website, but that helped only those with Internet access. Moreover, even those with access would have to speak English and would have to possess external knowledge of the requirement to know to click on the "special registration" link to learn more.
The hurdles did not end here. The information at the website link was incorrect and confusing. Some examples are illustrative. The Arabic language notice for Group 2 incorrectly stated that only those entering AFTER September 30, 2002 were required to register. Later the Group 4 extension notice gave confusing information about who was required to register. The government apparently relied on the ethnic press, community organizations, attorneys and advocates to get the information out to impacted communities. These individuals and groups struggled to disseminate the information and to notify INS of errors, prompting a Group 2 deadline extension and a clarification of group 4 requirements.
iii. Lack of interpreters
Due process problems also riddled the registration process itself, through lack of interpreters, lack of attorney access, the withholding of identity documents, poor conditions of detention and intimidation. The INS did not provide interpreters, though the director of the New York office had stated they would be available. Rather, officers relied on volunteer interpreters, family members or friends of registrants, or even complete strangers to interpret for registrants. There were many stories of officers calling out into the crowd, "anybody speak Arabic, Urdu, etc?" or of requesting individuals interpreting for others to volunteer to help. In some cases, INS officers came to rely on specific volunteer interpreters, making repeated requests for their assistance. In others, officers refused to work with other volunteer interpreters. In many other cases, officers threw interpreters out of interviews when they determined that a registrant's English was "good enough." In many cases, limited- or non-English-speaking registrants were simply forced to register with even though they did not understand what was happening.
iv. Denial of Attorney Access
The INS also made it very difficult for attorneys to represent registrants. Security officers often refused entry into the building to attorneys who did not possess a New York State Court System identification card, even though this is not an attorney ID card and in fact New York has no such ID card for attorneys. Attorneys without such cards had to wait on the Broadway line for several hours, which presented significant problems for attorneys trying to connect with clients already in the building. At the entrance to the special registration unit on the third floor, attorneys were again often denied entrance if they did not possess the same ID card, did not have a Form G-28 (Notice of Entry of Appearance as Attorney or Representative) or did not have their client with them. (Interpreters faced even more difficulty entering the building and unit itself.) The result was that registrants most in need of counsel found themselves stranded.
Moreover, volunteer attorneys who sought to assist registrants were informed that they could not represent them without submitting a Form G-28, but were informed that the INS would not make the forms available, even though they are INS documents and it would be extremely difficult for the attorneys to exit, obtain more forms and re-enter.
Most seriously, registrants were denied access to their attorneys at the investigations unit, though this was the place at which they were the most vulnerable. INS officials initially stated that registrants would have access to their attorneys throughout the registration process. However, in practice, attorneys were not allowed to be present during investigations unit interviews. INS subsequently explained this by saying that attorneys would be allowed to be present if their clients were making sworn statements. This policy fundamentally undermined attorneys? efforts to represent their clients. Attorneys had no way of knowing when or if a sworn statement was being taken and had to rely on an investigations officer to notify them of when they could enter the unit. Moreover, any question their clients were answering was under oath and could impact their ability to apply for relief from removal. It was essential for attorneys to be present to ensure that their clients understood the difference between conceding removability and waiving a hearing and asking to see an immigration judge. Denial of attorney access had disastrous consequences for some immigrants. For example, one young man referred to the investigations unit mistakenly waived his right to a hearing. His attorney argued that she should be present, but the INS officer denied her access to represent her client during the investigations interview. Alone, he became confused and frightened. As a result, he was detained pending deportation.
The attitude and behavior of many officers towards registrants created an atmosphere of fear in the unit and prevented registrants from asserting their rights. Particularly as the unit filled with registrants, officers yelled at them not to sit on the windows, to sit down once they had signed in and not to move around, not to lie down to sleep, and to move into the overflow room when room 310 became too crowded. These requirements and the tone in which they were announced, particularly the order to move into another room, were confusing and anxiety-provoking. Moreover, it made it difficult for registrants to get information from volunteer attorneys, as registrants seeking information from volunteer attorneys were repeatedly ordered to sit down.
Officers yelled out individuals' names when it was their turn to be interviewed. They were often impatient with non-or limited-English speaking registrants, pressuring them to be interviewed and indeed proceeding with interviews even when the registrant repeatedly stated that they did not understand. Registrants were often asked unnecessarily personal questions about family and marital relationships and religious beliefs and practices. In several cases, officers challenged the authenticity of registrant's relationships to their citizen wives, though they were not supposed to adjudicate applications, and humiliated registrants whose cases they believed were not bona fide. In several cases, registrants wept openly as officers taunted them. On several occasions, individuals waiting to register witnessed other registrants being handcuffed and removed from the room.
Family members of registrants referred to the investigations unit sat waiting for hours for their relatives to return, without any explanation as to what was happening and when or whether the registrant would return. Family members and friends of detained relatives sometimes gave up and went home after waiting 12 or more hours, and the next day began the process of calling community organizations and lawyers to try to locate the "disappeared" registrant.
The situation was not improved by the fact the special registration unit supervisor was often gruff and unresponsive even to questions and requests by attorneys. Registrants witnessed their attorneys and volunteer attorneys rebuffed by the supervisor, contributing to their sense of powerlessness and hopelessness. People were not allowed to leave under even under conditions of exigency. For example, a registrant was accompanied by his wife and young child. When the couple needed more milk for the child (after waiting several hours) the officers refused to allow them to leave. A volunteer interpreter, after some discussion, convinced the guards to allow her to go get the milk and return.
Once on 10th floor the environment was particularly hostile. Some people spent as long as 36 hours at special registration, spending long hours in a large holding cell. Registrants were held in a holding cell as they waited to be processed and interviewed. Some registrants were handcuffed others were not. Registrants reported that most people were unable to sleep because of the unpleasant environment and their anxiety about what might happen next. The officers on the 10th floor were more intimidating. They reported they were treated like criminals, and were searched in a demeaning manner. Some officers said insulting things to registrants, for example, some officers made jokes about catching terrorists in front of registrants. There were interpreters on the 10th floor, but some registrants reported that they were not competent.
Registrants detained on the 10th floor also reported that people were detained for up to a day without clear access to food or water. Registrants reported that access to food and water was up to individual officer. There was no effort made to accommodate religious dietary needs. Some registrants who were released reported having to drink water out of the toilet.
The registration process was characterized by systemic inconsistency and sloppiness, making it difficult to predict outcomes, to represent or inform registrants as to procedures and outcomes, and which contributed to a general atmosphere of confusion and anxiety. Unfortunately, in virtually every case, this inconsistency created serious adverse consequences for registrants.
First, no provision was made for interpreters for a program requiring testimony under oath that clearly targeted non- or limited-English speaking persons. New York District INS officials indicated that INS would provide interpreters and that attorneys would be allowed to be present throughout the registration process. However, it quickly became clear that no interpreters would be provided, leaving volunteer interpreters scrambling to assist registrants and leaving most non-or limited-English speaking registrants to fend for themselves during interviews.
Second, registrants quickly learned that, not withstanding promises by INS administrators, they would be denied access to attorneys during the investigations interview, the most critical stage of the registration process.
Third, the government made no provision to hire additional staff or provide other additional resources to support the program. Registrants waited hours to register simply because there were inadequate staff to perform the interviews. INS staffing did not increase until the evening when staff from other units started overtime shifts doing special registration interviews.
Fourth there appeared to be a significant lack of training and oversight of interviewing officers, the result being widely varying outcomes for similarly situated individuals, some registered and released, some referred to the investigations unit and placed in removal proceedings, and wide variance in treatment, with some officers trying to be pleasant and others acting in an abusive and insulting manner towards registrants. For example, some officers registered individuals who last entered the U.S. on SAW visas, while others refused to do so. In some cases, individuals who claimed to have last entered the U.S. with nonimmigrant visas but who subsequently lost their documents were allowed to register, while in others they were refused.
Fifth, there appeared to a serious lack of guidance from headquarters to the New York district office. In several cases of inconsistency, the New York office reported that the reason for the confusion was that headquarters had simply issued no guidance on how to deal with certain situations. This lack of guidance resulted in serious consequences for registrants. For example, many would-be registrants who had lost their documents were turned away, but were not given any proof that they had tried to register. Such individuals can later be accused of not complying with the registration requirement, and can be subject to criminal penalties and be deportable as a result.
Sixth, Representations by the New York District office as to interpreters and attorney access were unreliable. Standards for entering the building and the special registration unit, changed frequently.
The negative consequences of Special call-in registration should be corrected. National security interests are clearly not served by frightening and alienating entire communities and by humiliating and criminalizing non-citizens who seek to comply in good faith with new immigration laws.
The Commission should investigate civil rights violations caused by the special call-in registration program.
The special call-in registration program should not be expanded. The program has been counter-productive and ultimately serves no national security interest. Immigrants who register are seeking to comply in good faith with new immigration law, not terrorists in hiding who are discovered via registration. In addition, the program has had a chilling effect on South Asian, Arab and Muslim communities. They believe that they have all been targeted as criminals and enemies of the U.S. based solely on their national origin and religious beliefs. People are afraid to go to the police for help when they are victims of, or witnesses to, crimes, or to otherwise interact with any government agency.
Congress could consider legislation providing protection from deportation for all those subject to special call-in registration. For thousands of registrants, the reward for compliance with the registration requirement is deportation. Thousands of men with U.S. citizen or Lawful Permanent Resident wives and children and with applications pending for immigration status in the U.S. are facing deportation, notwithstanding their long residence in the U.S., their history of hard work in the U.S. and the extraordinary hardship their families will suffer if they are ordered deported. Even those who agree to leave pursuant to Voluntary Departure are subjected to deportation-like processing, in which the BCIS retains their passports, meets them at the airport and escorts them onto planes departing the U.S.
In light of the lack of notice and the misinformation that characterized the special call-in registration program, those who did not register should not be subject to criminal penalties or to deportation solely based upon failure to register. As is the case with all immigration enforcement matters, it is essential that the distinction between civil enforcement and criminal penalties be maintained. People should not be criminalized for immigration status violations.
The Commission should call on the Department of Homeland Security to make full disclosure to the public of the number of people registered and the number of alleged terrorists discovered via special call-in registration, as well as the cost in terms of agency resources to implement the program. Badly needed resources have been diverted from adjudications to support this flawed program, expanding existing backlogs in pending application without evidence that it has been effective in improving national security.