On December 23, the Obama administration will rescind the regulations implementing a registration system which would have likely been the base of Trump’s “Muslim Registry”. What does this mean?
Short version- This is a welcome step, but will likely not have a major effect on Trump’s plans. this is largely symbolic, and probably won’t have more practical effect than delaying a Trump registry.
Longer version– By most accounts, a ” #MuslimRegistry ” under Trump will technically be a registry of nationals from countries with large Muslim populations. Despite the controversy, this concept isn’t new. In the early 2000’s, there was a similar program called the National Security Entry-Exit Systems, also known as “NSEERS” or “Special Registration”.
This program required men from several designated countries to present themselves to immigration officials. The system did not result in a single terror-related conviction, but did cause tremendous upheaval and fear in immigrant communities.
Creating such a large scale program requires the government to first promulgate implementing regulations- essentially rules created by the government in accordance with governing statutes. Regulations can be timely to create, and usually require a period of notice and comment before implementation. (As a side note, much of the state suit against DACA was based on an assertion that the government failed to follow these requirements.)
The regulations implementing NSEERS (which were actually issued in the 1990’s for a smaller program) allowed the DHS to designate countries subject to registration without additional the regulatory process. For NSEERS, the program ended when agency removed all countries from the program requirements, but their implementing regulations remained in place.
Therefore, the Trump administration could have simply resumed the registration program by designating countries subject to those requirements almost immediately.
Rescinding the implementing regulations will not stop a registry, therefore, but the Trump administration will need to promulgate new ones in order to create a “Muslim registry”.
These regulations should take at least several months to implement, and will be subject to notice and comment requirements. It is, therefore, likely a small victory creating some poignant symbolism, chances for advocacy and perhaps a short reprieve. It will not, however, prevent a new registry program by itself.
Bean + Lloyd, LLP is an immigration law firm in Oakland, California, emphasizing family-based immigration, removal defense, and naturalization.
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