Register your huddled masses, yearning to breathe free

The second Trump administration is employing novel and troubling ways to attempt to carry out the president's promised mass deportations. This includes the enforcement of long-extant, but little-utilized, laws, such as the Alien Registration Act of 1940. The act requires all non-citizens in the U.S. for 30 days or longer to register with the federal government. 90 FR 11793.                                                                   

The original intent of the Alien Registration Act was certainly not mass deportation of anyone and everyone in the country without immigration status. The law was enacted on June 28, 1940 in the context of World War II amidst the prevailing fear of foreign spies and communist infiltrators. Thus, it was these perceived threats that the law was intended to identify, not immigrants coming to America seeking safety, life and liberty. This is reflected in a statement by President Franklin D. Roosevelt on June 29, 1940 who, after signing the act into law, declared, "Most of the aliens in this country are people who came here because they believed and had faith in the principles of American democracy, and they are entitled to and must receive full protection of the law... It would be unfortunate if, in the course of this regulative program, any loyal aliens were subjected to harassment." "Statement on Signing the Alien Registration Act; June 29, 1940," UC Santa Barbara: The American Presidency Project.

A preliminary injunction appeal seeking to block the Trump registration requirement was filed on April 24, 2025 and is currently pending before the U.S. Court of Appeals for the DC Circuit. Coalition for Humane Immigrant Rights, et al. v. Department of Homeland Security, et al., Case No. 1:25-cv-00943-TNM (DC Circuit). For the time being, the registration requirement remains in effect.

The registration law is codified at 8 USC § 1302. The statute requires fingerprinting, and registrants must carry proof of registration at all times. Failure to register can result in a misdemeanor criminal charge, as well as a fine of up to $5,000 or six months in jail, or both. Additionally, failure to carry proof of registration can result in a misdemeanor criminal charge, a fine of up to $5,000 or 30 days in jail, or both. 8 USC §§ 1304(e) & 1306(a); 90 FR 11793.

The Trump administration's registration enforcement has caused massive consternation in the immigrant community. It has also placed immigration law practitioners in a difficult position when advising clients on how to proceed. On the one hand, practitioners cannot ethically advise clients to not comply with a legal requirement, particularly when failing to do so can result in criminal charges. On the other hand, complying with the registration requirement will facilitate the government's ability to identify registrants as non-citizens in the country without immigration status, and to take action to seek their deportation.

The registration requirement has also resulted in confusion among both immigrants and their advocates as to who may already be registered. The Trump administration is utilizing a longstanding regulation that lists immigration documents that serve as proof of registration. Per the regulation, those who are already registered include green card applicants, and those issued green cards, work permits, visitor visas, border crossing cards, immigration parole documents, even if expired, and non-citizens who have been in deportation or removal proceedings. 8 CFR § 264.1. The regulation's list does not include other non-citizens who have applied for benefits and have been fingerprinted, but where the listed registration documents do not apply. For example, toward the end of the Biden administration thousands of non-citizens applied for the short-lived Keeping Families Together program which was designed to facilitate the green card process for certain spouses of US citizens. The program was struck down on Nov. 7, 2024 by a federal judge, John Campbell Barker, a Trump 1.0 appointee. State of Texas v. Department of Homeland Security, Case No. 24-cv-306 (EDTX Nov. 7, 2024). Many, if not most, applicants for the Biden program provided the government with their pertinent information and were fingerprinted. A plain reading of the registration statute indicates that these individuals have registered. However, per the corresponding regulation, they have not.

The Trump administration has created a method for non-citizens to register using revised Form G-325R. Registration by this method can only be done electronically and requires the creation of an online account with US Citizenship and Immigration Services, or USCIS. However, Form G-325R is not among the forms that immigration attorneys can file on behalf of clients on USCIS attorney accounts. Thus, non-citizens must register by this method pro se, or by having their attorney present while they complete the form online. Additionally, the form requests information about the registrant's spouse and parents, including the country in which they reside. Consequently, registrants may be exposing family members who are in the U.S. without status to immigration authorities by complying with the registration requirement. Incidentally, the inability of practitioners to file the registration form on behalf of clients appears to be a purposeful tactic to limit attorney assistance of immigrants as much as possible. This would be consistent with the president's stated animosity for the immigration bar in his executive order of March 22, 2025, "Preventing Abuses of the Legal System and the Federal Court."

The dark historical precedent of compulsory government registration of vulnerable segments of a population cannot be ignored. Indeed, such registration has nearly always preceded official oppression of the registrants. Cf. "The Decree for the Reporting of Jewish-Owned Property," Germany, April 26, 1938. Unless the current registration requirement is stopped in the courts, the next four years portend a bleak outlook for millions of immigrants who will be faced with the no-win choice of whether or not to register, and the corresponding consequences. It is the hope of immigration law practitioners that the courts will consider the legislative intent and historical context of the registration law in ultimately striking down its present interpretation and enforcement.