Let me say first I love the solidarity in response to yesterday's news about the "Muslim Registry." Non-Muslims are offering to register themselves, or become Muslim, in order to gum up the system - a form of civil disobedience.
However, this is a proposal only for Muslim immigrants. Citizens wouldn't be registered. (Let me clarify: This is just a proposal. It is not the law...yet.) This is *not* a blanket registry for all Muslims. What exactly it will look like - ie, whether it will profile based on religion or national origin - remains to be seen.
I'm afraid that calling it a #MuslimRegistry (ie, for all Muslims) obfuscates what's actually happening: the resurrection of NSEERS. This failed Bush-era program required Muslim male immigrants to register - and 84,000 did - and 14,000 found themselves in removal proceedings, with nearly 3,000 detained. Number of terror convictions? Zero.
Does this matter? Aren't we all in a database anyway? Turns out, it does matter. A lot. I can't overstate this:
Policies intended to thwart terrorism look to an individual's actions.
Policies intended to be bigoted and xenophobic profile based on race, religion, or national origin.
Kris Kobach (who seems to be advising the transition team) was one of the original architects of NSEERS. He also authored Arizona's infamous "show me your papers" law. His M.O. is to figure out ways to criminalize aspects of immigrant life to create more opportunities for interception by police. In other words, he creates "legal land mines" to trigger deportation at the slightest touch.
And now he's creating "NSEERS+."
Meanwhile, a far-right white supremacist has been appointed Chief of Staff. An avowed Islamophobe is within earshot of the new President. Right-wing anti-immigrant thinktanks like the Center for Immigration Studies have already put together a dystopian list of 79 executive actions President Trump can take to remove any semblance of due process for immigrants. (Yes - executive actions. The same ones they cried were unconstitutional when done by Obama.)
Ladies and gentlemen, welcome aboard the Trump Train. Next stop: Legalized bigotry. The rise of Trumpism should concern every single American.
However bad it might be policy-wise, it's probably constitutional as this article clarifies. It's hard to get judges to review policies over the admission of foreign nationals. I've often written that is the precise reason why, if you're looking for de jure bigotry, you'll find it in immigration laws, because courts are reluctant to tell Congress who they can let into the country. This is a result of the "plenary power doctrine" - which states that the admission of foreigners inheres in the ancient rights of sovereignty. Legalized bigotry will start with immigration laws. And that's why it should concern us all: like it or not, we're all on the Trump Train now.
Besides being an abject failure, NSEERS caused immense grief. I remember, as a young(er) lawyer, being amazed that our country would single out Muslims for such added scrutiny. I learned to always request both sides of the paper I-94 cards, because the back was usually where they wrote the FIN (fingerprint identification number) from registrees. FINs were scarlet letters, and I'd be filled with a sense of shame when I would ask my Muslim client, my brother in faith, for his scarlet letter. And the affidavits we'd have to prepare - so many we had a template - to try to defeat a finding of "wilful failure to register" which would trigger an automatic denial.
Because it was such a hastily put together machine, no one knew what to expect. Men were told that if they had a pending application for, say, a green card they would not be put into proceedings. They complied, and were detained and placed into deportation anyway. Fathers were needlessly deported away from their children and families. In once case, a client was placed into proceedings, triggering a needless 9 year battle for a green card. In another case, USCIS tried to unlawfully expand the NSEERS requirement to a Palestinian by trying to say he was a "Jordanian national" even though he was officially stateless. (Jordan was on the list; Palestine wasn't) We proved his statelessness and therefore NSEERS didn't apply.
This is the brainchild of Kris Kobach & Co.. Do you think he'll stop? NSEERS was just Windows 1.0. Emboldened and empowered by a party that has embraced bigotry as its platform, "NSEERS+" is a horrific prospect.
When the program was suspended in 2011 (absorbed into US-VISIT), it was such a breath of fresh air. Cases for Muslims got easier. It seems we didn't even have to sue them as much to get the green cards approved - despite the ugly CARRP program (another way Muslims are targeted - but that's another topic.)
Now all those horrible memories are coming back. Can you imagine if segregated water fountains made a comeback? This roller coaster of rights is a very unwelcome ride. This is what the "Muslim" flavor of exclusion looks like in 2016, but there are other flavors for other groups, too. Kobach & Co. will make sure of that.
So while I appreciate the gesture of solidarity and offers to register - as a Muslim immigration lawyer, I'd rather you make it clear to your Congressman that a vote for this misguided policy will result in a vote for their opponent in 2018. A vote against NSEERS is a vote for due process of law, and (what I hope still is) the American ideal that we don't discriminate against people - even when the law allows us to.
And if you want to come protest in solidarity with lines of innocent people shuffling along to get their scarlet FINs, I'll see you there.