Does Security Trump All: Will Muslims Face Extreme Vetting Under the Trump Administration?

by Tarter Krinsky & Drogin LLP
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[co-author: Karim Sabbidine, Legal Intern]

In December 2015, President-elect Trump called for “a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.” This idea of a Muslim ban has taken many iterations with the latest being an “extreme vetting” on Muslims entering the United States. Under the U.S. Constitution, the proposed plan would be a blatant violation of equal protection and religious freedom. However, similar policies have been enacted in the past and the legislative department has done little to stop such polices.

The Supreme Court has “consistently reaffirmed the power of the president to control the entry and exit from the country as a matter of national security.” Although the full details of Trump’s plan have not been revealed, Kris Kobach, the Kansas Secretary of State and a member of Trump’s transition team, has stated, “the immigration policy group could recommend the reinstatement of a national registry of immigrants and visitors who enter the United States on visas from countries where extremist organizations are active.” The “reinstatement” Kobach is referring to would be a revival of a program known as the National Security Entry-Exit Registration System or NSEERS.

National Security Entry-Exit Registration System
Background: NSEERS was an immigration program set up by President George W. Bush’s administration following the tragic events of 9/11. The program registered and tracked non-citizen visa holders. These non-citizen visa holders included students, ordinary workers and tourists. The program was split into three parts: (1) non-citizens had to register when they entered the United States, which included fingerprinting, photo-taking and interrogation; (2) these individuals, as well as individuals already within the country, had to continually “check in” with immigration officials; and (3) the program tracked when visas had run out and if individuals had illegally remained in the country.

The program initially included five countries, grew to target all males aged 16 or older from 25 countries, including Afghanistan, Algeria, Bahrain, Bangladesh, Egypt, Eritrea, Indonesia, Iran, Iraq, Jordan, Kuwait, Lebanon, Libya, Morocco, North Korea, Oman, Pakistan, Qatar, Saudi Arabia, Somalia, Sudan, Syria, Tunisia, United Arab Emirates and Yemen – all majority Muslim countries with the exception of North Korea. These countries were considered by the Bush administration as “havens for terrorists.” Based on Kobach’s remarks, Trump’s program could shape itself much like NSEERS. With regard to the countries that could be affected, a Trump administration source has stated “it’s a moving target” due to ISIS’ ongoing movements throughout a number of countries. In addition, a Trump source has stated that the registering and tracking of foreigners from high-risk countries would not be strictly limited to Muslims but rather, all individuals from high-risk countries.

Effectiveness: NSEERS was deemed by many to be ineffective. The original aim was to stop terrorism. However, after a registration of more than 80,000 men and boys, at least 13,000 of those individuals were placed into deportation proceedings because of infractions completely unrelated to terrorism, such as overstaying their visa. In fact, not only did the program fail to deport any possible terrorists, the program did not result in one terrorism conviction. Further, on December 22, 2016, an official notice calling for the removal of the NSEERS regulations stated that “the program was redundant, captured data manually that was already captured through automated systems, and no longer provided an increase in security in light of DHS’s (Department of Homeland Security) evolving assessment of threat posed to the United States by international terrorism.”

Implementation: If Trump were to start up a program similar to NSEERS, he would have significant difficulty. Not only was the program suspended in April 2011, but as mentioned above, on December 22, 2016, the Department of Homeland Security published a regulation that removed NSEERS regulations. Specifically, the regulation stated, “the regulatory structure pertaining to NSEERS no longer provides a discernable public benefit as the program has been rendered obsolete. Accordingly, DHS is removing the special registration program regulations.” Due to this, if Trump were to reenact such a program, he would essentially have to recreate the program and designate countries from scratch. If Trump were to enlist the help of various technology companies headquartered in the United States, he would also run into significant difficulty. Representatives from Apple, IBM, Uber, Google, Facebook, and Microsoft have all vowed not to help the Trump administration enact such a program if asked. Oracle declined to comment as to whether they would assist in such a program. Although difficult, constitutionally, Trump could still enact such a program.

A Muslim registry would certainly face a large amount of backlash from the Arab and Muslim communities. A number of legal challenges were brought up against NSEERS after its implementation, most of which achieved little to no success. If Trump were to enact his own version of a tracking and registration program, the same legislative failures may occur along with a large amount of backlash and uproar. However, while Jeff Sessions noted in his confirmation hearing that there will not be a “Muslim registry,” it’s still unclear what – if any – restrictions will be placed on individuals coming from Muslim-majority countries under the Trump Administration when it comes to immigration. We await January 20, 2017 and beyond to assess whether NSEERS is resurrected.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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