The Trump Administration is enforcing an old, harmful wartime law purporting to require noncitizens to register with the federal government. This provision primarily targets noncitizens who have entered unlawfully and could consequently face criminal prosecution. A decade ago, Professor Jonathan Weinberg argued that such a requirement “raises serious questions under the Fifth Amendment’s self-incrimination clause.” The Trump Administration’s new registration form, Form G-325R or “the Registration Form,” infuses these questions with renewed urgency as immigrants are now grappling with whether to comply while the Secretary of Homeland Security promises to “hunt[] down” so-called “criminal illegal aliens.”1

The Self-Incrimination Clause protects individuals from compelled testimony that could be used against them in a criminal case. Building on Weinberg’s contention, this essay argues that the Registration Form does just that — requiring noncitizens to provide incriminating information, like the date and manner of their entry into the United States, that is reasonably likely to be used to criminally prosecute them. Unregistered immigrants — who are more than likely undocumented and without a pathway to status — find themselves in a lose-lose: register and provide the government with the information to find, criminally prosecute, and deport them; or do not register and risk fines or imprisonment. The right2 against self-incrimination may provide a way out of this dangerous dilemma, keeping immigrants off the Trump Administration’s “coercive immigrant registry,” while providing those who invoke it a defense against criminal prosecution.

The Immigrant Registration Requirement and Its Harmful History

The registration requirement has been on the books since the enactment of the Smith Act of 1940 but, for decades, effectively null for those who entered without authorization. The plain language of Section 262(a) of the Immigration and Nationality Act (INA) requires noncitizens fourteen years and older (and legal guardians of younger noncitizens) to apply for registration and fingerprinting if they remain in the United States for thirty days or more. This requirement applies to those not already registered under other INA provisions. Section 264(a) mandates that registrants state their “date and place of entry . . . into the United States.” Failure to comply is a misdemeanor punishable by a fine up to $1,000 and/or imprisonment up to six months. Only those who “willfully fail[] or refuse[]” to register are subject to conviction.

While these decades-old registration provisions may seem innocuous on their face, the reality is the opposite. Despite the statute’s text, in the registration scheme’s seventy-five-year history, there has never been (nor should there be) a comprehensive registration system. By regulation, many noncitizens register when interacting with the immigration system, be it through admission or parole at a port of entry, placement into immigration court (removal) proceedings, or receiving certain immigration benefits, like work authorization. But others have remained unregistered with no way to do so. To the extent the Registration Form attempts to fill this gap, it does so on legally shaky ground and at a moral cost.

Registration is a harmful instrument of government surveillance and control that disproportionately impacts minority populations.3 History is replete with population data systems weaponized as “tools of oppression”: registration requirements in pre–Civil War America for free Black Americans; Chinese Exclusion era laws requiring Chinese laborers in the United States to register and barring them from citizenship; badges to identify Jewish people  for deportation to concentration camps during the Holocaust; South Africa’s 1950 registration law that facilitated apartheid; registration as the preface to internment of Japanese Americans during World War II; and the post–September 11 creation of a “de facto Muslim registry” through the National Security Entry-Exit Registration (commonly known as “NSEERS”) to target Muslim men in the name of national security.

The Smith Act itself, which established the framework for the current scheme, is a wartime law passed to further an anti-Communist agenda. By requiring all noncitizens to register, the government could “match[] the newly-created Smith Act fingerprint files against its records of spying, crime, and subversive activity.” This dark history of surveillance, oppression, and criminalization of minority populations forms the backdrop to the Trump Administration’s dangerous efforts to mandate immigrant registration.

The Trump Administration’s Revival of Registration as a Tool of Surveillance and Criminalization

In Executive Order 14,159, President Trump directed the Department of Homeland Security (DHS) to establish a system for the “[i]dentification of [u]nregistered [i]llegal [a]liens” and prioritize for “civil and criminal enforcement” “failure to comply” with registration requirements. To justify these and similar actions, President Trump claimed that there is an “invasion” into the United States and that noncitizens “present significant threats to national security and public safety.”4

Pursuant to this directive, on February 25, 2025, DHS Secretary Kristi Noem announced plans to use “[e]very [a]vailable [t]ool to [c]ompel [i]llegal [a]liens to [s]elf-[d]eport,” including criminal penalties for failure to register and be fingerprinted. On March 12, 2025, DHS published an interim final rule (effective April 11, 2025) to create Form G-325R. (A legal challenge to the Trump Administration’s failure to follow the rulemaking process is ongoing.)

Completing the online, English-only Registration Form requires providing the government biographic and demographic information, including physical address; date and place of entry into the United States; status at last arrival; and criminal history, among other information. All fields must be completed. Prosecutions for “willful failure or refusal to register” are already occurring.

The New Registration Form’s Self-Incrimination Problem

Under the Fifth Amendment’s Self-Incrimination Clause, “No person shall be . . . compelled in any criminal case to be a witness against himself.” This protection, rooted in “a judgment . . . that the prosecution should [not] be free to build up a criminal case . . . with the assistance of enforced disclosures by the accused,” applies to all persons in the United States, regardless of immigration status. The privilege can be asserted not only on the witness stand, but also “in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory,” where “the witness reasonably believes [the disclosures] could be used in a criminal prosecution,” including when completing the Registration Form.

As the Supreme Court has established: “To qualify for the Fifth Amendment privilege, a communication must be testimonial, incriminating, and compelled.” The Registration Form satisfies all three requirements.

To be testimonial, the “communication must itself, explicitly or implicitly, relate a factual assertion or disclose information.” This is in contrast to the production of certain physical evidence — like handwriting samples, voice identification tests, and blood samples — which is generally not considered testimonial communication for self-incrimination purposes. Written communication can qualify. Because Form G-325R requires noncitizens to disclose information — such as date of birth, residential address, date and place of entry — to the government in written form, it solicits testimony. Indeed, “[t]here are very few instances in which a verbal statement, either oral or written, will not convey information or assert facts.”

To be incriminating, the communication must disclose information that the person “reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used.” Communications that “would furnish a link in the chain of evidence needed to prosecute [a person] for a federal crime” are considered incriminating, “even if the information itself is not inculpatory.” People are protected from incriminating disclosures irrespective of guilt or innocence. Here, the Registration Form requires registrants to disclose information that could reasonably be used against them in criminal prosecutions. Registrants must tell the government whether they have ever committed a crime; whether they have ever violated any controlled substance law; what activities they have been and plan to engage in in the United States; and when and where they entered the United States, including their status at last arrival. Based on the information they provide on the Registration Form, registrants could be prosecuted for any number of offenses. Those who entered without inspection could be prosecuted for improper entry or reentry. And individuals who register on behalf of themselves and their children may risk prosecution for bringing persons into the United States unlawfully and bringing in or harboring certain persons.

Moreover, as is required for the privilege to apply, the “hazards of incrimination” are “substantial and ‘real,’” not “trifling or imaginary.” President Trump has prioritized the prosecution of immigration crimes and directed the Department of Justice to “use all available criminal statutes to combat the flood of illegal immigration.” The “hazards of incrimination” might only be mitigated to the extent that the statute of limitations has run, but even then the time limit for prosecution is likely not a jurisdictional bar and only “provid[es] a nonjurisdictional defense that a defendant must press at trial.”5

Finally, what it means for testimony to be compelled is more elusive. Professor Lawrence Rosenthal has argued that “Fifth Amendment jurisprudence and scholarship contain nothing approaching a workable conception of what constitutes compulsion within the meaning of the Fifth Amendment.” The Supreme Court has articulated, likely in dicta: “The test is whether, considering the totality of the circumstances, the free will of the witness was overborne.”But, per Rosenthal, this supposed test is neither useable nor consistently followed. Regardless, the Court has found that self-incriminating testimony was compelled through statutory registration mandates, including those that required completion of forms to register as a member of the Communist party and as a person engaged in the business of accepting wagers, where failure to do so could result in criminal penalties.

Here, there is also a statutory requirement, Section 266(a) of the INA, requiring registration of (otherwise unregistered) noncitizens, implemented through Form G-325R, with failure to register carrying criminal penalties. Thus, under existing jurisprudence, the Registration Requirement compels testimony. This is especially true for individuals who entered without inspection, never encountered immigration officials, and have no pathway to immigration status, as such individuals can only register via Form G-325R.

In sum, because Form G-325R compels unregistered noncitizens to submit incriminating information to the government, it runs afoul of the Self-Incrimination Clause.

The Essentially Regulatory Hurdle

The biggest hurdle to invoking the Fifth Amendment privilege in this context stems from an exception limiting the protection’s reach where compelled incriminating disclosures are “essentially regulatory.” Under the essentially regulatory (or “required records”) doctrine, “the Fifth Amendment privilege may not be invoked to resist compliance with a regulatory regime constructed to effect the State’s public purposes unrelated to the enforcement of its criminal laws.”

Although the Supreme Court articulated a three-part test to determine whether the essentially regulatory doctrine applies in its 1968 decision Grosso v. United States,6 it applies these principles with “flexibility.” At its core, the doctrine limits the Fifth Amendment privilege in “essentially noncriminal and regulatory area[s],” where the required disclosures are “directed at the public at large.” Under this doctrine, the government can properly require that individuals file income tax returns, provide their name and address after a car accident, or maintain sales records.

But where required disclosures are “directed at a highly selective group inherently suspect of criminal activities,” the exception does not apply. Thus, the Supreme Court has held that the right could be asserted to avoid registering with the Internal Revenue Service as an individual who accepts wagers because “wagering is ‘an area permeated with criminal statutes,’ and those engaged in wagering are a group ‘inherently suspect of criminal activities.’” So too to avoid compliance with a statutory scheme requiring members of the Communist Party to disclose their party membership where admission could reasonably be used to criminally prosecute them in a similarly permeated area.

Whether the Self-Incrimination Clause can properly be invoked to defend against prosecution for failure to register turns on whether the requirement is “essentially regulatory or criminal in nature.” Section 262 limits the registration requirement to every noncitizen who “has not been registered” through the visa issuance process under Section 221. What this means in practice is that the people who are required to register under the statute are those who entered unlawfully.7 What’s more, because there are other ways for noncitizens who entered unlawfully to comply with the registration requirement, including by acquiring lawful status, the Registration Form specifically targets those who entered unlawfully, could be the subject of prosecution, and for whom there is no pathway to regularize status. Far from being directed at “the public at large,” the Registration Form primarily targets a highly selective group inherently suspect of criminal activities — those who entered irregularly and are thus subject to prosecution for improper entry or reentry. Accordingly, the required records doctrine should not apply.

Proponents of registration will contend that the Registration Form is part of a civil regulatory regime, arguing that, although a handful of immigration crimes exist, the immigration laws are largely civil in nature, and the registration requirement merely creates an “inventory” of noncitizens in the United States. This view finds superficial support in a smattering of cases predating the Registration Form, but none holds up on closer inspection.

The Ninth Circuit has cursorily concluded that the registration requirement is “essentially non-criminal and regulatory,” on a record where the party invoking the privilege “ma[de] no effort” to argue the point. The Seventh Circuit also found that the “essentially regulatory” exception allowed a requirement to carry otherwise incriminating “alien registration cards” because the purpose was “for the government to be aware of the number of aliens in the country and their status.” But it did not address the registration requirement itself, and it failed to grapple with the Smith Act’s legislative history, which reveals that the registration requirement aimed to help the government identify “subversives” and “other political undesirables.”

Finally, in Rajah v. Mukasey, the Second Circuit upheld the “special registration” and reporting requirement for certain noncitizen men from Muslim majority countries over a Fifth Amendment challenge. The discriminatory and harmful nature of the NSEERS program and the (in)correctness of the court’s decision aside, the mandate was distinct from the one here — primarily targeting lawfully admitted non-immigrants (thus not generally individuals subject to prosecution for entry-related crimes) and requiring disclosures as a condition of receipt of an immigration benefit (whereas there is no benefit to the Registration Form). Rajah also only held that noncitizens could be compelled to provide information about their immigration status, not broader information, such as that relevant to criminal history.

Ultimately, none of the cases grappled with the context surrounding the Trump Administration’s registration mandate. In the same Executive Order directing the “identification of unregistered aliens,” President Trump prioritized the prosecution of immigration crimes and characterized noncitizens as “committing vile and heinous acts against innocent Americans.” The Registration Form itself directly solicits incriminating information, requiring noncitizens not only to answer questions incriminating them in the crime of illegal entry, but to answer questions such as “Have you EVER violated (or attempted or conspired to violate) any controlled substance law or regulation of a state, the United States, or a foreign country?” Regardless of past approaches to immigrant registration, the Registration Form expressly aims to capture incriminating information — without conferring any immigration benefit — from individuals who the Trump Administration itself considers inherently suspect of criminal activity. Form G-325R thus cannot be understood as “unrelated to the enforcement of . . . criminal laws.”

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For countless undocumented immigrants who now must decide whether to complete the Registration Form — and risk incriminating themselves while also identifying themselves for a “large-scale immigration crackdown” — or not to complete the form and risk criminal penalties, invoking the Self-Incrimination Clause provides a viable defense for those considering the latter. Yet, even if that defense ultimately prevails, the harsh reality for those forced to raise it is that any contact with the criminal system lands them in the detention-to-deportation pipeline. For now, the Self-Incrimination Clause’s power lies in offering a defensible legal justification for declining to submit the Registration Form in the first place.