The Right to Keep Track

If one were to believe recent broadsides by Muslim and Arab advocacy groups, there is almost nothing that the Bush administration can do to improve visa controls that isn't motivated by racism or a desire to discriminate against Muslims.

When the now famous Bremer Report was submitted to Congress 15 months before the Sept. 11 attacks, Hala Maksoud, president of the Arab-American Anti-Discrimination Committee, criticized the report's central recommendation as "facilitating abusing behavior by the government." That recommendation: track international students in America. As unlikely as it might sound, just more than two years and 3,047 innocent lives later, measures such as tracking international students are subject to even louder and more relentless criticism, though predictably from the same sources.

As of Sept. 11, 2002, the Bush administration adopted the June 2000 recommendations of the Bremer Report, in the form of the National Security Entry / Exit Registration System. NSEERS permits the government to register the entry and exit of all of the 35 million people who visit the U.S. each year, obtain their photographs and fingerprints, and know where they will be while here. In the event a visitor's stay is longer than 30 days, he must periodically check in with the INS.

There is nothing novel in this effort, as it is for the most part no more than enforcement of existing INS regulations. The target date for collecting information for all visitors is 2005, but in the meantime, the government will collect it from visiting nationals of Sudan, Iran, Iraq, Syria and Libya, five of the seven countries that the State Department regards as sponsors of terrorism. Surprisingly, the government will not collect the information from Pakistani or Saudi nationals.

The administration's announcement of the program has been met with more cries of discrimination and racism. Although the program considers race in no way at all, in August, 2000, Cyrus Mehta of the Association of the Bar of the City of New York complained to ABC News, "This system is not yet in place, but it will certainly lead to racial profiling."

"This decision is an affront to Iranians and runs counter to ethics and the norms of a civil society," said Hamid Reza Asefi, Iran's Foreign Ministry spokesman, who then went on to threaten that America "will suffer for such an approach." Frank Sharry of the National Immigration Forum said that the program "smacks of the sort of tactics used by totalitarian regimes like Iraq," while James Zogby of the Arab American Institute resorted to the old saw of comparing the U.S. to the Soviet Union.

When the Attorney General announced plans for the program in June 2000, Amr Mussa, the Secretary General of the Arab League, said, "These are discriminatory measures against citizens of Arab and Islamic countries," and then said, somewhat amazingly, that the Arab League was "conducting a legal study on those discriminatory procedures."

If the "legal study" Mussa promised was actually conducted, it couldn't have taken much time. It has been the law of the United States since at least the 1790's that no non-citizen has any right to come here, except as Congress permits. It is legally impossible for the U.S. to have an immigration, visa, or inspection policy (which is really all the new registration program is) that is discriminatory, in the popular sense of that word.

The Supreme Court stated it best over 100 years ago, and the law has never changed: "Congress has power, even in times of peace, to exclude aliens from, or prevent their return to, the United States, for any reason it may deem sufficient." Even if an alien files a perfect petition for immigration benefits, the INS is under no legal requirement to act on it within any particular period of time, let alone grant the benefits requested.

If Congress decides that a person may visit America, it also sets the conditions of that visit. That is why, for example, a non-citizen without a work visa may not work, a student visa actually requires the non-citizen to be a student, and any visa holder must leave at the expiration of his visa. It is also why there are entire categories of people who are statutorily ineligible to enter, from persons affiliated with the Nazi government to suspected terrorists.

While there's an obvious truth behind the administration's decision to initially collect information on visitors from countries it regards as sponsors of terror -- namely, that it might head off another tragedy like Sept. 11 -- one would think that NSEERS would be seen for the modest, rational measure that it is, and that, perhaps, the Muslim world would be relieved that the U.S. did not decide, as it could have, to exclude entirely nationals of Muslim and Arab countries. While it's true that the countries initially selected are countries with a Muslim majority, it's just as true that every one of the Sept. 11 hijackers was Muslim.

If, as James Zogby argued, a requirement that visitors provide a fingerprint, photo, and itinerary, and periodically check in with immigration authorities makes the U.S. like the Soviet Union, then the United Kingdom, Switzerland, Spain, France, Germany and the Netherlands are like the Soviet Union, too.

Why do so many people react with such condemnation when the U.S. announces steps that might curtail immigration? It's because so many people in the world hold an abiding belief that they are somehow entitled to be here, or have a stake in the domestic affairs of our country. That's why the European press seems to be preoccupied with our election results, and why people like Amr Mussa believe that in the cause of anti-discrimination "citizens of Arab and Islamic countries" have a right to enter the U.S. more or less uninspected. Given that America is merely adopting an inspection procedure like that of most European nations, why does it seem to be so difficult for some of our visitors to do whatever is reasonable and necessary to place their host's mind at ease?

There is a deeper question in all of this. We know that Saudi mosques resonate with anti-American rhetoric. We know that almost all of the Sept. 11 hijackers were Saudi nationals. We know that there are elements within the Saudi government actively working to subvert American interests (just last October, equipment for forging U.S. State Department security badges was found in offices of the Saudi High Commission for Relief.) Yet, Saudi nationals remain exempt from NSEERS. 

True, we must balance our response to evidence of Saudi "unfriendliness" toward the U.S. with the reality that the U.S. needs a base of military operations in Saudi Arabia, and therefore must maintain "friendly" relations with the Saudi government. But how can we possibly continue to permit Saudi nationals to move about this country without registration?

Matt Hayes began practicing immigration law shortly after graduating from Pace University School of Law in 1994, representing new immigrants in civil and criminal matters. He recently left the New York City law practice he founded in 1997 for the "more normal life" of insurance defense, and is author of The New Immigration Law and Practice, a textbook to be pubished by West Legal Publications in October, 2003.

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