On Thursday, April 10, D.C. District Judge Trevor McFadden denied a preliminary injunction motion that sought to pause the Trump administration’s interim final rule (IFR) requiring noncitizens to register with the government. It is difficult to overstate the impact of this new rule.
The IFR, which went into effect last Friday, reverses seventy-five years of regulations and requires millions of undocumented immigrants to fill out a complex online registration form, be fingerprinted, download, and “ at all times” carry proof that they registered. As many experts will tell you, the registration rule is essentially a trap for noncitizens, mandating that noncitizens provide information that will facilitate mass deportation on pain of criminal sanction.
Judge McFadden did not rule on the permissibility of the IFR. Instead, he concluded that the plaintiffs lacked standing because the harms they asserted were speculative. In doing so, he acknowledged that the rules constitute a dramatic break from the past but suggested that no one knows what harms they may cause.
Yet the harms are easy for anyone to see. Noncitizens now face an obligation, on penalty of criminal sanctions, to answer a form that may incriminate them and their loved ones. This obligation is a dramatic shift from any past practice and dramatically different from the United States’ brief experiment with universal registration in the 1940s. Judge McFadden might not have found standing, but we can expect that other courts will either find standing in other cases or accept such standing as the harms become manifest.
When a court finally addresses the merits of the rule, there are strong procedural and substantive grounds to challenge its implementation.
On the procedural side, DHS’s effort to sidestep notice and comment rulemaking is deeply problematic. DHS argues that it is merely implementing a statutory provision that has existed since 1940. But, in fact, the new rule is an unprecedented effort to target undocumented noncitizens and use registration as a tool for deportation and criminal prosecution. While registration has been on the books since 1940, it has never taken on the form that DHS is advancing today. By 1950, those without status had no way to register. Moreover, the Justice Department immediately included exceptions, such as for short term Canadian visitors. These same exceptions and more applied to the 1952 Immigration and Nationality Act. As Natasha Fernandez-Silber and I described in our law review article on registration, no one saw the statute as imposing a universal registration requirement in policy or practice.
Moreover, the forms used for registration back in 1940 were very different from the new IFR form. The 1940 Act form asked for information about a person’s address, dates of arrival, race and ethnicity, and occupation. In contrast, the new form targets protected First Amendment activity by asking: “Since entry, in what activities have you been engaged?” It also requires noncitizens to provide information about the person’s spouse and parents, thereby broadening the net of information that can be used for enforcement. Finally, it is chock full of impossible questions, such as “Have you EVER committed a crime of any kind (even if you were not arrested, cited, charged with, or tried for that crime, or convicted)?” (all caps original).
Whereas today’s scheme is being touted as part of maximizing immigration enforcement, then-Attorney General Robert H. Jackson went out of his way to offer reassurances that the government was not generally seeking deportation through registration. In contrast, today’s registration scheme appears directly tied to a campaign for mass deportation.
On the substantive side, the plaintiffs in the DC case argued that the IFR is arbitrary and capricious and thus in violation of the Administrative Procedure Act. One ground is that it fails to explain why the agency is changing the approach it applied for seventy-five years. Why, for example, after including special exemptions for Canadians since the beginning of alien registration, is the United States now requiring Canadians to register, let alone fill out a form that asks about uncharged criminal conduct? Why, seventy-five years after abandoning a form that can be used by undocumented noncitizens, is the United States now requiring them to come forward with detailed information about themselves plus their family members? What are the foreseeable costs and other tradeoffs? Does the scheme risk destabilizing communities, and does that make sense? What other legal problems does the policy change risk? Does it encourage viewpoint-based discrimination in the enforcement of immigration laws through its questions about past and planned activities? What are the justifications for the consequences that are likely to ensue?
History shows that serious consequences flow from registration schemes. In the late nineteenth century, the United States targeted Chinese “laborers” and required registration and carrying of registration documents. It placed its burden on all persons of Chinese descent, including United States citizens, since enforcement officers might target anyone who looked Chinese. The courts placed the burden on persons of Chinese descent who were not required to register to prove their right to be in the United States. The 1940 Act presented itself as universal but was a precursor to Japanese internment. The 1952 Act was used to provide a pretext for Special Registration, as implemented in the early 2000s , which wreaked huge damage on Muslim and South Asian communities in the United States.
Where immigration enforcement officers have (wrongly) presumed that the United States already has a universal registration scheme, the consequences have been felt by citizens as well as noncitizens of all possible forms of status. In the early 2000s, Border Patrol officers on the northern New York border took the position that everyone should be carrying documents. In a report from the Immigrant Rights Clinic at NYU School of Law, which I co-authored, we found that Border Patrol’s resulting enforcement practices targeted people with a wide array of forms of legal status, including tourists, individuals with employment visas, student visa holders, and recipients of protection for survivors of domestic violence. Border Patrol’s “show me your papers” policing also ensnared citizens who were taken off buses and trains and held as Border Patrol offices while officers decided whether to credit their claims of citizenship.
Ultimately, registration puts a practical demand on citizens to carry proof of U.S. citizenship for fear of being mistaken for a noncitizen who should be carrying a registration document. In a country that has long rejected any form of national identification card, universal noncitizen registration leaves everyone else at risk of being required to prove U.S. citizenship in order to show that the registration requirement is inapplicable to them. That is certainly a major change in policy that is worthy of both public comment and an adequate justification.
Judge McFadden’s order is the first in what we can expect to be more challenges to the improper use of the interim final rule process for implementing a major policy change. Let’s hope the next judge reaches the merits.