Judge Allows DHS to Enforce Rule Requiring Illegal Aliens to Register

Judge Allows DHS to Enforce Rule Requiring Illegal Aliens to Register

No shock that the media is one thing about President Donald Trump being in office. They write crap headlines and bury ledes.

Take this story, for example.

Judge Trevor Neil McFadden ruled that President Donald Trump’s DHS can enforce a rule that has been in the books requiring illegal aliens to register with the government and carry documentation.

How did the AP frame the ruling? Like this via PBS:

A federal judge on Thursday allowed the Trump administration to move forward with a requirement that everyone in the U.S. illegally must register with the federal government and carry documentation, in a move that could have far-reaching repercussions for immigrants across the country.

The rule has been around since 1940. McFadden wrote:

The story behind this case begins in 1940, when Congress enacted the Smith Act, also known as the Alien Registration Act. Pub. L. No. 76-670, 54 Stat. 670 (codified at 8 U.S.C. § 451) (repealed 1952). This Act instructed aliens (excluding foreign government officials and their families) who were present in the United States, 14 years or older, and who remained in the country for at least 30 days to register and be fingerprinted at a local post office. See id. §§ 31(b), 32(b), 33(a), 54 Stat. at 673–674. Upon registration, the alien was issued form AR-3, a registration receipt that itself conferred no immigration status or benefit. See Policy Manual, U.S. Citizen and Immigration Services, https://perma.cc/Q87R-AX7Z.

McFadden noted that “the administrative state” diluted these requirements over the past decades, including eliminating “the division responsible for universal registration and shifted registration from post offices to ports of entry and INS offices.”

The Immigration and Nationality Act of 1952 (INA) “supplanted the Smith Act,” but “incorporated its registration mandates.”

Here’s the kicker (emphasis mine):

The statute requires that visa applicants be registered through the visa process. 8 U.S.C. §§ 1301, 1201(b). And for those not registered this way, the INA includes provisions for registration and fingerprinting of all aliens over the age of 14 who remain at least 30 days, and similarly to require parents to register their children. See id. § 1302(a), (b). It also adds onto the Smith Act by adding a requirement that aliens ages 18 and older carry proof of this registration “at all times.” Id. § 1304(e). More, the INA makes it a crime to “willfully fail[]” to register or be fingerprinted, punishable by a fine or up to six months of imprisonment. Id. § 1306(a).

This is not hard. It is literally in the law, no matter how many times previous administrations tried to skirt it.

McFadden seemed to express frustration over how implementation differed during administrations and Congress:

The implementing regulations are a bit different. They first provided that the only available registration form for aliens who were not lawful permanent residents was a record of lawful admission and departure (Form I-94). See 17 Fed. Reg. 11532, 11533 (Dec. 19, 1952). Over the years, as Congress created additional forms of immigration status, the INS added some of these forms as proxies for the registration document demanded by the statute. But still, this means that the only aliens who are registered are those with legal immigration status; the regulations do not include a nondiscretionary registration form for an alien who entered illegally. More, in 1960, the INS removed the carry requirement from the Code of Federal Regulations. Compare 22 Fed. Reg. 9805, 9806 (Dec. 6, 1957) (requiring “Carrying and possession of proof of alien registration.”), with 25 Fed. Reg. 7180, 7181 (July 29, 1960) (no carry requirement).

In January, Trump signed an executive order telling DHS, DOJ, and the State Department to enforce this rule.

DHS published its Interim Final Rule with a new form called G-325R.

I mean, it’s quite simple. Fill out Form G-325R, and it can be used “as evidence of registration under the statute and regulations.”

The plaintiffs are a group of nonprofit organizations, claiming the Interim Final rule “is a legislative rule but was published without notice or an opportunity for public comment” and is arbitrary and capricious.

McFadden ruled that the plaintiffs failed to show that they would likely succeed on the merits or that they had standing to bring the lawsuit.

The judge denied their request for an injunction.

The Coalition for Humane Immigrant Rights (CHIRLA) main claims were based on hypotheticals, such as “thousands of individuals” requesting help and advice. This hypothetical situation could “impact multiple programs and will strain its staff and budget.”

Yeah, you do not get relief based on “conjectural or hypothetical injuries.”

CHIRLA also insisted the rule would impair its mission. Your mission is *literally* to help those who come to America. McFadden hits it right on the nose:

Arguably, these enhanced advocacy efforts are a fulfillment of an organization’s mission. In other words, “the Final Rule has not impeded [CHIRLA’s] programmatic concerns and activities, but fueled them.” Elec. Priv. Info. Ctr. v. U.S. Dep’t of Educ., 48 F. Supp. 3d 1, 23 (D.D.C. 2014). Indeed, “the expenditures that [CHIRLA] has made in response to the Final Rule have not kept it from pursuing its true purpose as an organization but have contributed to its pursuit of its purpose.” Id.

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