As most immigration advocates can attest, the first year of the Trump presidency saw a number of unprecedented actions targeting immigrant communities.
However, in reality some of his actions, particularly those targeting Muslim immigrants, were not actually “unprecedented.”
While the idea of monitoring large segments of the population who meet a broad demographic profile may seem like a new form of overreach, it is actually a throwback to a failed program from the Bush administration — the National Entry-Exit Registration System (NSEERS) Special Registration Program.
For those unfamiliar with the NSEERS Special Registration Program, it was a hastily implemented and arguably unconstitutional program enacted shortly after the 9/11 terrorist attacks.
In practice, NSEERS program was effectively a “Muslim Registry” that required huge swaths of men from predominantly Muslim countries to register their presence with the government and re-register on an annual basis.
At the time, the NSEERS Special Registration Program was widely criticized by Muslim communities and immigration advocates for targeting individuals for registration solely on the basis of race and religion.
By December 2003, the Department of Homeland Security quietly discontinued the annual re-registration requirement under NSEERS.
In December 2016, President Obama repealed the underlying NSEERS regulations altogether. However, the NSEERS Special Registration Program was not discontinued due to the discriminatory nature of the program.
It was discontinued because it didn’t work. During the short time the NSEERS Special Registration Program was in place, it proved to be completely ineffective, costing the federal government millions of dollars in taxpayer money and resulting in the capture of zero terrorists.
Even worse than the financial cost to taxpayers, was the human cost of the program. While in effect, the NSEERS Special Registration Program led to over 10,000 men who had nothing whatsoever to do with terrorism being placed in deportation proceedings.
For those of us in the trenches during NSEERS, these statistics represent real people and families who were collateral damage in the domestic war on terror. As one of the attorneys on the frontlines in the fight against NSEERS, I can personally confirm the human toll of the program.
Between 2004 and 2008, as a staff attorney with the Lutheran Social Services of New York (LSSNY) Immigration Legal Program, I represented men placed in removal proceedings after complying with the NSEERS Special Registration Program and challenged the legality the program on appeal in federal court.
This legal challenge culminated in the Court of Appeals for the Second Circuit decision in Rajah v. Mukasey, which upheld the NSEERS program on national security grounds.
One key aspect of the case that was largely overlooked in court’s decision was an acknowledgement that the lead plaintiff was a real person.
Rajah was a kind, soft spoken Moroccan man with three young U.S. citizen daughters in the process of obtaining his green card at the time of his NSEERS registration whose only crime was trying to follow the rules.
To me and others, he wasn’t just a statistic. He was my client. He was somebody’s husband, somebody’s father, trying to do the right thing.
If the measures proposed by CBP were to go into effect, there would be many more “Rajah’s” unfairly swept up in the national security dragnet solely on the basis of religion and country of birth.
Equally troubling, CBP’s proposed actions will likely leave us less safe. That’s because it will divert resources away from more effective programs that work together with local community organizations.
This could potentially combat acts of terrorism in all forms (including “homegrown” terrorism by right-wing extremists) and counterterrorism efforts based on suspicious activity versus being part of a particular demographic group.
Before implementing CBP’s recommendations, I sincerely hope that the Trump administration will change course, and decide not to return to the failed policies of the Bush era that further alienated Muslim communities and did nothing to keep us safe.
Ana Pottratz Acosta, J.D. is an assistant professor at Mitchell Hamline School of Law.