Donald Trump’s proposed “Muslim registry,” explained... Nov 16, 2016 PART I Donald Trump rode into office on a promise to step up scrutiny of immigrants who might come to the US to commit terrorist acts — especially Muslims. Now, thanks to transition team member and Kansas Secretary of State Kris Kobach, we’re getting a sense of what that might look like. Kobach told Reuters that the Trump administration-in-waiting is considering reinstating a database of immigrants from Muslim-majority countries — something the federal government did from 2002 to 2011. The Kobach proposal isn’t the same thing as the database of Muslim US citizens that Trump briefly floated (and then walked back) last year. It’s subtler — and that makes it a lot more plausible. The difference between a “Muslim database” and a “database of particular people in the US from particular countries, which happen to be majority Muslim” might seem like a meaningless distinction, something to give a gloss of neutrality to something clearly discriminatory. But that gloss of neutrality matters a lot. It’s the reason the federal government was able to keep a database for a decade. And it’s probably the reason you might not have known that database existed at all. The Bush-era registry that just happened to target majority-Muslim countries Kobach knows exactly what he’s talking about. As a staffer in George W. Bush’s Justice Department after 9/11, he led the effort to put together the National Security Entry-Exit Registration System, or NSEERS. Under NSEERS, certain “foreign citizens and nationals” in the US had to come into immigration offices for fingerprinting, photos, and interviews — and then had to check in again at designated intervals. But this “special registration” system was selective. It only applied to people on non-immigrant visas (including tourism and work visas). It only applied to men over the age of 16. And it only applied to people from a list of countries the Bush administration considered “havens for terrorists.” There were 25 countries on the “special registration” list. Twenty-four were majority-Muslim countries. The 25th was North Korea. Over the next decade, more than 80,000 men were put into NSEERS “special registration” database — Muslims and non-Muslims from suspected countries alike. But to Muslim American and civil rights groups, the fact that the Bush administration was responding to 9/11 by ordering thousands of Muslim men to show up to register with the government was de facto discriminatory. Courts have given the US a lot of leeway in singling out people from particular countries The executive branch has pretty broad authority over immigration policy, and it has very broad authority over foreign policy. When the federal government enacts an immigration policy that has foreign policy consequences, the courts are especially unlikely to intervene. So when the government designates people from particular countries for special treatment, according to Kevin Johnson of University of California Davis, "those are the kinds of things the courts are likely to say have foreign policy implications and should be in the hands of the federal government and the executive branch." In other words, it might not be constitutional for the government to single out Muslim immigrants for particular treatment. But it’s another thing for the government to single them out on a country-by-country basis — “to say ‘I'm going to ban migrants, or Muslims, even, from Yemen,’" Johnson says. So while NSEERS got challenged in court, the challenges didn’t get very far. One 2006 ruling in the First Circuit Court of Appeals, according to an essay by Nitin Goyal (then a law student), "specifically [cited] the national security justifications for the regulation and the special deference given to the executive and legislative branches over issues of immigration." It’s theoretically possible that 15 years after 9/11, the courts would be less deferential. But the fact that NSEERS didn’t only require Muslims to register — and that, in fact, non-Muslims also got deported for failing to comply with the program’s terms — made it easy for the government to claim its only concern was with the countries from which immigrants originated, not their religion or race. NSEERS was an easy way to scoop up Muslim immigrants for minor violations The Department of Homeland Security says that NSEERS allowed it to catch and deport suspected terrorists. But according to the American Civil Liberties Union, no one registered with NSEERS was ever actually convicted of a terrorism-related crime before deportation. What NSEERS did do, however, was provide an easy way to catch Muslim men (and non-Muslim men from Muslim countries) in the US who violated the terms of their visas, or of the “special registration” program itself. By July 2003, less than a year after NSEERS went into effect, the government had registered 83,000 men in the database — and had put 13,000 of them in court proceedings for deportation. In the first two months of NSEERS, 1,000 registrants were detained, and all but 15 of them were detained for civil violations. Most of these men had violated the terms of their visas at some point while living in the US — though thousands of them had applied for green cards before they registered with NSEERS, and just hadn’t had their applications approved yet. In theory, the purpose of NSEERS was to catch terrorists, not people who’d violated civil immigration laws. But visa overstays were what the government found. And visa overstays were what it punished. “A non-immigrant visitor who overstays a visa, is present without inspection, [or] commits a crime or fraud is just as removable under those grounds as terrorism grounds,” a government fact sheet on the program proclaimed. Immigrants who didn’t comply with NSEERS (by, for example, not showing up to follow-up appointments) could be deported. But people registering with NSEERS, and giving their information to the government, made it easier to deport someone who then overstayed his visa than it would have been to deport him if he’d refused to register at all. The Bush administration occasionally conducted raids (like one of an Indonesian community in New Jersey in 2006, detailed in a 2012 report by Penn State Law and advocacy groups) that rounded up and deported dozens of men who’d overstayed visas, but not their wives and children — leading the rest of the community to assume that the information the men had given to NSEERS allowed them to be detained and deported.