Kamal Essaheb has vivid memories of the freezing day in 2003 when he, his two brothers and their father took a train to New York City’s federal building to join a long line of brown men waiting to be fingerprinted, photographed and asked: “Are you a terrorist?”
Essaheb recalled the fear and confusion on the men’s faces as, one by one, their names were added to a post-9/11 registry for immigrants from 24 Muslim-majority countries and North Korea.
The Essaheb men were placed in deportation proceedings, the beginning of a nightmare that took years and the intervention of advocacy groups to resolve, narrowly sparing them the fate of 13,000 mostly Muslim immigrants who were removed from the United States under the now-defunct program.
Essaheb, who became an immigration attorney after his ordeal, is alarmed that President-elect Donald Trump and his associates have floated the idea of reviving a so-called “Muslim registry,” a tactic he said ripped apart American families, unfairly targeted one religion and failed to result in a single terrorism conviction. In an interview this week, he cautioned that a new round of fear-driven policies could lead to the same kind of government overreaches that occurred after the Sept. 11, 2001, attacks.
“It’s a haunting period to reflect on,” said Essaheb, director of policy and advocacy at the National Immigration Law Center, a Washington-based legal advocacy group. “It’s scary to think, from all that we’ve learned from the past decade, and really from the history of this country, that we would walk into that again.”
Trump repeatedly has voiced support for some kind of Muslim database, though, like many of his policy proposals, the contours have shifted a great deal over the past year. At times he’s appeared to endorse a database of all American Muslims; at others, he’s said it’s only for Syrian refugees entering the country. A Politifact examination of his statements on the topic found them “contradictory or confusing.”
The Trump team released a statement last month saying that the president-elect “has never advocated for any registry or system that tracks individuals based on their religion, and to imply otherwise is completely false.”
What self-respecting terrorist is going to walk up to a counter and say, ‘I’m a terrorist. Just thought I’d share my name and address because that’s the kind of terrorist I am’? Julie Dinnerstein, attorney
That statement doesn’t rule out special registration. While any attempt by Trump to register Muslims who are U.S. citizens or green-card holders likely would run into constitutional challenges, there aren’t the same barriers to reactivating a program such as the one under which Essaheb and his family were nearly deported, immigration attorneys say.
That special registration program was formally known as NSEERS, the National Security Entry-Exit Registration System, and it applied to boys and men 16 and older who held non-citizen visas, including tourists and students.
The program got around questions that it was singling out Muslims by not making it based on religion but on country of origin – something Trump, too, suggested during the campaign. It applied to two dozen predominantly Muslim countries, and was introduced a year after the 9/11 attacks by al Qaida.
NSEERS was a complex project that wasn’t well explained to Americans or to the would-be registrants, attorneys say. Provisions included mandatory in-person questioning within a month of entering the country, a requirement to report changes of address, and rules about which airports registrants could use. Any violation of NSEERS was considered a criminal offense and a visa violation – grounds for deportation.
Around 85,000 people registered as part of NSEERS; more than 13,000 landed in the pipeline for deportation. And of all those thousands who signed up, only a handful had any terrorism connections, and the information gathered under the program yielded zero prosecutions on terrorism-related charges, according legal advocacy groups.
In a 2004 interview with The New York Times, James Ziglar, who served as commissioner of what was known then as the Immigration and Naturalization Service, or INS, said he’d been skeptical of the program and concluded that, “as expected, we got nothing out of it.”
The Department of Homeland Security did not respond to repeated requests for comment.
A modified version of NSEERS persisted all the way until 2011, when it was suspended under President Barack Obama. But the program is still technically on the books even though there are no current countries to which it applies.
Kansas Secretary of State Kris Kobach, who helped design the program while serving in the Justice Department during the George W. Bush administration, told Reuters last month that the renewal of such a program was under consideration. Two days later, a Trump surrogate, Carl Higbie, drew widespread criticism for saying that the internment of Japanese Americans during World World II provided a “precedent” for registering Muslim immigrants.
You feel like your city and country are under attack. And you feel like, as a Muslim, because of your religion, you’re under attack, and then this program is rolled out in which you’re under attack by your own government. Kamal Essaheb, who registered under a Bush era program
Those statements helped persuade the American Civil Liberties Union, a rights watchdog, to call on Thursday for Obama before he leaves office to dismantle the NSEERS program entirely, to thwart potential attempts at reviving it.
“President Obama discontinued NSEERS in 2011 but left the regulatory framework on the books, ready to be reactivated at any time,” the ACLU said in a statement. “If the Obama administration rescinds the regulation now, that will terminate the program, leaving nothing for the next administration to reactivate.”
Essaheb said talk of renewing such a program overlooks the impact on people.
“Campaigns and elections have a certain style and there’s a rhetoric that goes along with that that may play well with rallies, but at the end of the day these are human beings. These are individual lives that would be impacted by policies like this,” Essaheb said. “A Muslim registry is not just a list of people. A Muslim registry is families that have been here decades whose lives could be destroyed because of this.”
Essaheb and his relatives voluntarily registered knowing that they were out of status. His parents had come to the United States from Morocco in 1992, when he was 11. His father worked for an agency that had agreed to sponsor him for a green card, but then mishandled the paperwork, Essaheb said, so the family ended up overstaying their visas.
Essaheb knew none of this for years. He grew up in Queens with the normal rhythms of life – school in September, baseball season in March – and only found out in high school that his family was undocumented. He didn’t get to vote when he turned 18 and had to change his choice of university because he wasn’t eligible for financial aid.
Still, he continued about his life without feeling much different from his classmates until 9/11 ushered in an intense scrutiny of Muslims and the advent of NSEERS.
“You feel like your city and country are under attack. And you feel like, as a Muslim, because of your religion you’re under attack, and then this program is rolled out in which you’re under attack by your own government,” Essaheb said.
Essaheb said he’d never felt injustice the way he did on the day of his registration. He recalled thinking to himself, “this isn’t right.” Surveying the scared faces around him, he said, set in motion his decision to practice immigration law.
“In the middle of that confusion was a white Jewish lawyer who was volunteering her time to help as many people as she possibly could,” Essaheb recalled. “I thought that was so inspiring. I wanted to be like her.’”
That attorney was Julie E. Dinnerstein, a New York-based immigration lawyer who advised dozens of men as they registered and then handled the cases of nine NSEERS clients, including Essaheb. She said she takes terrorism very seriously – she was working four blocks from the World Trade Center on 9/11 and still worries about long-term health effects – but considers NSEERS an abject failure.
In fact, she said, it was “the antithesis of security,” a massive waste of money and resources that alienated communities and yielded little or no useful intelligence.
“What self-respecting terrorist is going to walk up to a counter and say, ‘I’m a terrorist. Just thought I’d share my name and address because that’s the kind of terrorist I am’? It’s unbelievable,” Dinnerstein said.
Essaheb said his experience under NSEERS is exceptional only in that he got lucky in meeting Dinnerstein, fellow law students, advocacy groups and others who fought hard to keep him in the country. He’s since attained legal status, he said, but worries that the current climate of anti-Muslim and anti-immigrant hostility could lead to a whole new generation of Muslim immigrants being exposed to surveillance and uncertainty.
“It was all sort of in the post-9/11 cloud or haze, where it felt like whatever the government did was OK, where it felt like the government had carte blanche to do what it needed to do,” Essaheb said. “And I’m worried that some people in the country might feel that way now. And it’s scary to think: Will we reinstate a program like that? Will we do something even worse?”