DHS Suspends NSEERS Registration Requirement

The U.S. Department of Homeland Security (DHS) has eliminated one of the most onerous and controversial security procedures for travelers from certain countries in the Mideast, North Africa, and Asia that were held to be of special national security interest. Effective April 28, 2011, the DHS said it would no longer register foreign nationals under the National Security Entry-Exit Registration System (NSEERS), a program implemented in the wake of 9/11. (See Final Rule: Removing Designated Countries From the National Security Entry-Exit Registration System (NSEERS), U.S. Department of Homeland Security, 76 Fed. Reg. 23830, 28.Apr.2011.)

NSEERS was highly controversial because – with the exception of North Korea – it singled out nations with majority-Muslim populations and subjected their travelers to an additional layer of scrutiny and inconvenience when they wished to enter the United States. Each time they came to the United States, NSEERS travelers had to stop for half an hour or so for secondary inspection and registration. Human rights groups complained that NSEERS institutionalized racial and religious profiling, a charge hotly disputed by immigration and national security officials, who defended the measure as a reasonable response to the threat posed by Al Qaeda and similar terrorist organizations.

The NSEERS program required travelers from specified countries to comply with special registration requirements, forcing them to provide fingerprints, photographs, and any additional information required by DHS when they arrived at a U.S. port of entry. Under NSEERS, nonimmigrant travelers from these countries could be required to visit a local ICE office to document their compliance with the conditions of their status and admission; they could only leave the U.S. through specified ports, so their departures could be recorded. The countries subject to NSEERS were 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.

If you come from an NSEERS country, don’t rejoice just yet. In suspending NSEERS, DHS is not saying that it no longer plans to pay special – albeit unwanted – attention to nationals of these countries. The DHS simply has put in place several automated systems that allow them to accomplish the same goals, without having to single out travelers from NSEERS countries for special registration requirements. The notice cites improved intelligence gathering as well as computerized systems that now provide complete passenger manifests for ships and planes entering and leaving the United States, allowing officials to track individual comings and goings without resorting to additional bureaucratic requirements. Under the US-VISIT system, for instance, most foreigners who seek admission to the U.S. already have to provide finger scans and digital photographs at their ports of entry. As DHS explained in the notice:

“In light of the development of and improvements to the Department’s information collection systems and international information sharing agreements, the Secretary has determined that subjecting nationals from designated countries to a special registration process that manually recaptures data already collected through automated systems is redundant and does not provide any increase in security.”

Nonetheless, the NSEERS program could be resurrected at some point. In a letter dated April 27, 2011, the DHS Officer for Civil Rights and Civil Liberties, Margo Schlanger, pointed to this possibility, while promising to carefully balance robust security procedures against respect for civil rights:

“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 not ended, the underlying NSEERS regulation will remain in place in the event a special registration program is again needed.

“Of course, all persons, baggage, and their conveyances arriving in or leaving the United States are subject to inspection and any traveler and his or her belongings may be subject to secondary screening for a variety of reasons, but referrals to secondary screening are not done automatically based on nationality. Rather, under DHS policy, screening is based on many criteria, which are carefully designed to reflect current intelligence and respect for civil rights requirements.”

The good news is that NSEERS will no longer be the first impression some travelers get when they come to the United States. Let’s hope it stays that way.

Disclaimer: The information provided here is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice nor presumed indefinitely up to date.