DHS Secretary Imposes Alien Registration Requirements in ‘Self-Deport’ Push

On February 25, the DHS secretary announced that her department will be using all of the tools in the Immigration and Nationality Act (INA) “to track illegal aliens and compel them to leave the country voluntarily”. That includes requiring aliens unlawfully present to register with the federal government in accordance with section 262 of the INA, a power I highlighted almost seven years ago that is now the cornerstone of the president’s “mass deportation” plans.

“Secretary Noem Announces Agency Will Enforce Laws”. DHS rolled out this registration plan in a press release captioned “Secretary Noem Announces Agency Will Enforce Laws That Penalize Aliens in the Country Illegally”, a clear response to the non-enforcement regime imposed on ICE by her predecessor, Biden DHS Secretary Alejandro Mayorkas.

As that press release explains, the INA is chockful of tools that enable DHS “to track illegal aliens and compel them to leave the country voluntarily”.

Fines and Penalties. Section 240B(d) of the INA imposes a civil penalty of between $1,000 and $5,000 for any alien granted the privilege of voluntary departure who fails to depart as promised.

Aliens ordered removed who fail or refuse to apply for travel documents, or who conspire or act to prevent their removals, are subject to indefinite detention under section 241(a)(1)(C) of the INA, as well as civil fines under section 274D of the INA of up to $500 per day.

Late in his first administration, Trump attempted to impose those fines on scofflaws, only for Mayorkas to scuttle that effort three months into the Biden administration. Worse, he directed the Treasury Department to cancel the fines that had already been imposed.

One claim often made by aliens under removal or voluntary departure orders is that they can’t leave because they have assets in the United States — cars, real property, etc. — they would have to abandon.

If DHS were to impose such fines, it could place liens on that property to ensure payment, but more importantly the prospect of such fines would likely also encourage aliens to dispose of their property more quickly to avoid losing their capital.

Moreover, the employer-sanctions provisions in section 274A of the INA contain numerous fines and other civil and criminal penalties that DHS could impose on employers who fail to verify the work eligibility of their employees or who knowingly hire unauthorized aliens for employment.

Likewise, section 274C of the INA provides civil and criminal penalties for those who have engaged in immigration-related document fraud.

Most of these penalties have become all-but vestigial due to the fact that various administrations have either failed to impose them or ignored them altogether. Noem is plainly reviewing them, and don’t be surprised if she doesn’t dust them all off and start putting them to use.

“Registration of Aliens”. Which brings me to section 262 of the INA, “Registration of aliens”, a provision of the law I highlighted in August 2018.

It dates to 1940, and imposes a duty on “every alien … in the United States” age 14 or older who “has not been registered and fingerprinted” under specified provisions of the law and who remains in the United States for 30 days or more “to apply for registration and to be fingerprinted before the expiration of such 30 days”.

The criminal penalty for failure to comply with that registration requirement is set forth in section 266(a) of the INA, which states:

Any alien required to apply for registration and to be fingerprinted in the United States who willfully fails or refuses to make such application or to be fingerprinted, and any parent or legal guardian required to apply for the registration of any alien who willfully fails or refuses to file application for the registration of such alien shall be guilty of a misdemeanor and shall, upon conviction thereof, be fined not to exceed $1,000 or be imprisoned not more than six months, or both. [Emphasis added.]

Note that under section 264(e) of the INA, every alien who has been registered must “carry with him and have in his personal possession” proof of registration. Failure to comply with that requirement is also a misdemeanor, carrying a possible 30-day jail term and a fine.

That’s why most lawful permanent residents (LPRs) carry their “green cards” in their wallets.

Up to this point, however, as USCIS explained on February 25, “a significant number of aliens present in the United States have had no direct way in which to register and meet their obligation under INA 262”.

Accordingly: “In order that unregistered aliens may comply with their duty under INA 262, USCIS is establishing a new form and process by which they may register.”

The agency followed up its announcement about that “new form and process” with a rather ominous warning: “No alien will have an excuse for failure to comply with this law.”

USCIS promises that a new registration form and a process by which aliens who haven’t yet registered can do so will be forthcoming. That’s when things will get interesting.

Who Must Register. By the way, most aliens lawfully present won’t have to do anything. They were already registered and fingerprinted when they went through the visa application process.

As per USCIS, the new registration requirement will only apply to: aliens over the age of 14 who weren’t registered and fingerprinted when they came here for 30 days or more; parents of such aliens who are under the age of 14; aliens who turn 14 while here “whether previously registered or not” who stay 30 days or more; Canadian visitors who came though a land port without receiving proof of registration; and DACA and TPS recipients who weren’t given evidence of registration.

Oh, and aliens who entered illegally, “without inspection and admission or … parole”.

That means the 2.2 million-plus aliens who were paroled under various Biden-era schemes (Parole+ATD, CHNV, CBP One) won’t have to register and be fingerprinted, but millions of other aliens who were caught and released (in violation of INA detention mandates) at the borders and ports in the past four years will be required to, as will an estimated 1.9 million “got-aways” who evaded apprehension.

Will They Register? Affected aliens plainly should comply with these new registration and fingerprinting requirements — it’s the law, and Noem’s registration mandate will ultimately be upheld even if challenged.

The United States government has a sovereign right and obligation to identify every alien in this country, legally or otherwise, and this administrative requirement stands on a strong statutory footing.

In fact, as I noted in 2018, the Supreme Court relied on the statutory registration requirements in two of its leading immigration-enforcement precedents: INS v. Lopez-Mendoza, which addressed the legality of warrantless immigration arrests; and Arizona v. U.S., where the Court held that a state law making it a crime for an alien not to possess proof of registration was invalid because “the Federal Government has occupied the field of alien registration” in sections 262 and 264 of the INA.

One might, however, still question whether millions of aliens will, in fact, register. Many will, most likely won’t, but from the administration’s perspective it likely won’t matter either way.

Noem’s DHS will be able to identify every alien who does register, which means her department can run background checks on them to find the ones who have committed crimes since they entered.

And, because section 265 of the INA requires aliens who have been registered to notify DHS within 10 days of any changes in address, the department will be better positioned to keep track of them.

On the other hand, any alien who willfully fails to register — or willfully fails to provide a change of address — has committed a federal offense under section 266 of the INA, which means that if they are subsequently caught by state or local cops in the United States, the U.S. Marshals Service (USMS) will come looking for them, as will ICE.

Even so-called “sanctuary” jurisdictions that have little compunction about ignoring ICE administrative warrants and detainers will be less cavalier when USMS comes calling to pick up a federal fugitive. That fact is likely as much of a consideration for Noem and her officers as the registration requirement itself.

Speaking of the secretary, she is actually showing a level of restraint with her current registration plan.

Section 263(a)(6) of the INA gives her “special” authority to require every alien in the United States who doesn’t have a green card to register. She hasn’t gone that far yet, but don’t be surprised if — in an attempt to round up every alien currently violating his or her non-immigrant status — such a program is next down the pike.

The administration is serious about acting on the president’s promises and is digging deep into the INA to keep them. Enforcement is futile if millions of aliens are living in the shadows; the DHS secretary is now forcing them to come into the light — and onto the department’s radar.