Effective December 23, the regulation giving rise to NSEERS or special registration is officially terminated. The magnitude of this win for Muslim, Arab and South Asian organizations; rights groups; and the rule of law cannot be underestimated as it comes on the heels of nearly 15 years of uphill and tireless work to defend those affected by a version of “Muslim registry” and years of advocacy with every branch of government calling for an end to a program that was at once discriminatory, counterproductive and expensive. The history of NSEERS has been posted elsewhere. This post focuses on the final rule made available yesterday by the government (published version here).
Through a final rule, DHS has removed the special registration regulation concluding that it “no longer provides a discernible public benefit as the program has been rendered obsolete.” The final rule takes the reader through a short history of NSEERS while also highlighting how DHS now captures information about nonimmigrants through more sophisticated systems such as the Visa Waiver Program and the Arrival and Departure Information System.
The Administrative Procedure Act (APA) normally requires agencies to give notice and open a period for public comment before issuing a rule, but there are also some important exceptions.
In the final rule, DHS invoked the “procedural rule” exception which applies to “rules of agency organization, procedure, or practice.” DHS explains how this final rule is a procedural rule adopted for “agency efficiency purposes,” because the regulations themselves are outdated and have not been used since 2011. DHS furthermore describes how removing these regulations reflects a current “practice and procedure” of the government and will not affect substantive rights or interests of the public.
In the final rule, DHS also invoked a second APA exception known as “good cause.” The “good cause” exception applies when undergoing notice and comment procedures is “impracticable, unnecessary, or contrary to the public interest.” Correctly, DHS finds “good cause” because the removal of the NSEERS regulations will again have no substantive effect on the public as they relate to a program that has not been utilized since 2011 and have been dormant since then.
Because the final rule is procedural, there is no delay in the effective date (such a delay is required only when a rule is substantive). In other words, the rule is effective immediately.
Shoba Sivaprasad Wadhia is the Samuel Weiss Faculty Scholar and Founding Director of the Center for Immigrants’ Rights Clinic at Penn State Law: University Park.