Trump Executive Order Requires Aliens to Register

On February 25, 2025, with little fanfare, U.S. Citizenship and Immigration Services (USCIS) posted a notice regarding an alien registration requirement on its website. The notice referenced President Trump’s executive order (E.O.), “Protecting the American People Against Invasion”, which directed the Department of Homeland Security to “ensure that aliens comply with their duty to register with the government under section 262 of the Immigration and Nationality Act (INA) (8 U.S.C. 1302)”. Coverage of this requirement in the E.O. seems to have been minimal at best, and frankly even I’d all but forgotten. Let’s look at what the directive said:

Section 7, “Identification of Unregistered Illegal Aliens”, states that the secretary of Homeland Security, in coordination with the secretary of State and the attorney general, shall take all appropriate action to:

(a) Immediately announce and publicize information about the legal obligation of all previously unregistered aliens in the United States to comply with the requirements of part VII of subchapter II of chapter 12 of title 8, United States Code;

(b) Ensure that all previously unregistered aliens in the United States comply with the requirements of part VII of subchapter II of chapter 12 of title 8, United States Code; and

(c) Ensure that failure to comply with the legal obligations of part VII of subchapter II of chapter 12 of title 8, United States Code, is treated as a civil and criminal enforcement priority.

Immigration attorneys are essentially mocking the requirement while the public maligns it without understanding it. But hopefully the aliens described by it understand that they aren’t in a position to refuse to do so. For those who inevitably will, they have to know they’re rolling the dice on a table run by an administration determined to fulfill its campaign promise of mass deportations. Of course lawsuits are inevitable, especially over the requirement that children 14 or older register if they haven’t already. However, the overall requirement is assuredly legal, despite how much some critics might suggest otherwise. There’s also a lingering question about whether a public comment period was required for this action to comply with the Administrative Procedure Act.

Wikipedia will tell you that the legislation requiring registration, first introduced in June 1940 as the Alien Registration Act (ARA), or the Smith Act for short, was repealed in 1952. It wasn’t, and instead carried over into the McCarran-Walter Act, better known as the Immigration and Nationality Act of 1952. This post isn’t about the history of the ARA, however; it’s about the part the ARA could play in the second Trump administration’s mass deportation plan.

Before that can be explained, a few things need to be clarified. Entering the country is largely, but not entirely, binary. Some aliens enter without inspection (EWI) between ports of entry (POE) in violation of 8 U.S.C. § 1325(a)(1). For years before the Biden-Harris administration, though, most didn’t; instead, they entered legally at a POE, whether admitted with a visa, as a Visa Waiver Program participant, or as a parolee (the latter happening en masse at the Southwest border using the CBP One app between February 2021 and January 2025). There are some grey area offenses — still illegal and like EWI, technically crimes, like “eluding examination or inspection by immigration officers” and obtaining “entry though willfully false or misleading representation or willful concealment of a material fact”, but these offenses aren’t as common as entering between POEs or as entering legally, which happens more than 100 million times per year for just non-immigrants alone. Of the offenses I mentioned, visa overstaying isn’t a crime, and there is a statute of limitations (SOL) of five years for the rest. (Illegal reentry under 8 U.S.C. § 1326 is a separate offense and has no SOL). That means that on the 1,825th day after an alien enters illegally, if they haven’t yet been prosecuted, they now can’t be; they can only be charged with the civil offense of being unlawfully present in the United States.

Having gotten that out of the way, the genius behind the ARA is that the Trump administration has effectively turned what has historically been, and would otherwise be, a civil offense into a series of crimes. You read that correctly: not just a single criminal offense, but several.

• 8 U.S.C. § 1302(a) specifies that “[i]t shall be the duty of every alien now or hereafter in the United States, who [] is fourteen years of age or older, [and] has not been registered and fingerprinted [and intending to] remain[] in the [country] for thirty days or longer, to apply for registration and to be fingerprinted [within 30 days]”;
• 8 U.S.C. § 1304(e) requires “[e]very alien, eighteen years of age and over, [to] at all times carry with [them] and have in [their] personal possession any certificate of alien registration or alien registration receipt card issued to [them]”;
• 8 U.S.C. § 1305(a) “require[s that] [each alien] registered [] who is within the United States shall notify the [DHS Secretary] in writing of each change of address and new address within ten days from the date of such change”; and
• 8 U.S.C. § 1306 includes additional consequences for making fraudulent statements or engaging in fraud to register and counterfeiting registration documents.

Activist organizations and immigration attorneys are focused on what they see as the impossibility of enforcing the registration requirement, one going so far as opining on X:

[Y]ou CANNOT be deported for not registering unless you are CONVICTED of the “crime.” How many federal court judges and US attorneys will they have to hire to actually try (why would a person plead this out) 6 million cases?

Sentiments like this suggest that they’re either missing the point or get it but don’t want to admit that those for whom they advocate have few options, though leaving is one. Admittedly, the maximum punishments aren’t particularly severe: six months in prison, a $1,000 fine, or both for willfully failing or refusing to register or be fingerprinted plus deportation for fraudulent statements; 30 days in prison, a $200 fine, or both plus deportation for failure to notify DHS of a change of address; five years in prison, a fine of $5,000 or both for counterfeiting registration documents (8 U.S.C. § 1306); and 30 days in prison — the U.S. government doesn’t have jails — a $100 fine, or both for each instance of failing to carry proof of registration (8 U.S.C. § 1304(e)).

However, to paraphrase activists from the first Trump administration, cruelty isn’t the point, compliance is. Further, while you can’t be deported for failing (or refusing) to register unless the government proves beyond a reasonable doubt that doing so was willful, if ICE encounters an alien who is unlawfully present and isn’t registered, they’re amenable to deportation based on their unlawful presence. Illegal aliens are deportable because they’re here in violation of the law; we don’t have to wait for them to be convicted of a crime or even accused of one to deport them.

It remains to be seen what sort of documentation USCIS will issue to illegal aliens who comply with the registration requirement. Still, it might be a good use of the Secure Document Card that ICE was developing during the Biden-Harris administration and would create a population segregated from the four million-plus Immigration Court backlog it left the Trump administration to deal with.