Cite as "AILA InfoNet Doc. No. 02041234 (posted Apr. 23, 2002)"
April 12, 2002
Mr. Chairman and Distinguished Members of the Subcommittee:
My name is Kathleen Campbell Walker. I am honored
to be testifying today before you on behalf of the American Immigration Lawyers
Association (AILA). AILA is the national bar association of nearly 8,000
attorneys and law professors, who represent the entire spectrum of individuals
subject to our immigration laws. I
have been privileged to chair AILA’s State Department Liaison Committee for the
past three years and am a member of that organization’s Border Issues
Committee. I also practice
immigration law in El Paso, Texas, where I have focused for over 16 years on
border issues. In addition, I serve
on the Texas State Comptroller’s Border Advisory Council, and have served as a board member of the
Border Trade Alliance as well as a member of the Executive Committee of the
Texas Border Infrastructure Coalition.
I worked for four years as President of the El Paso Foreign Trade
Association to establish the first Dedicated Commuter Lane using Secure
Electronic Network for Travelers’ Rapid Inspection (SENTRI) technology in the
State of Texas.
I thus bring to the table practical and on the
ground experience regarding the challenges of border security, and cross-border
and cross-agency issues that I hope will be of use to the Committee as it works
to develop laws to address effectively the complex issues raised by achieving
effective border security without harming either our internationally based
economy or our dedication to respecting individual rights preserved by the
INTRODUCTION: THE IMPORTANCE OF THE BORDER SECURITY
AND VISA REFORM BILL AND THE NEED FOR ITS SPEEDY PASSAGE
I appreciate this opportunity to present AILA’s
views on the Enhanced Border Security and Visa Entry Reform Act. AILA applauds this Committee’s
responsive and thorough work in formulating this bill and strongly supports its
swift passage. This bipartisan bill takes significant steps to improve the
capability of federal agencies engaged in applying our immigration laws to
determine who should or should not be admitted to the U.S., and to ensure that
our nation’s immigration policies are in line with our common goal of
effectively deterring terrorism. On
behalf of AILA, I commend Senators Kennedy, Brownback, Kyl, and Feinstein for
their leadership in developing this important measure. The Enhanced Border and Visa Reform Act
is central to this nation’s effort to implement the necessary steps that will
enhance and increase the layers of security both at and away from our borders.
This nation does not have the luxury of waiting
to enhance the protection of the precious jewel, which is this nation. Without the tools provided in this bill,
those who protect our borders and attempt to fairly implement our laws would
confront the war on terrorism with an antiquated and poorly coordinated
armory. At this critical time, we
must give our federal agencies the tools they need to succeed in their task,
rather than handing them their marching orders without the means to achieve
their objectives. And we must do so
without losing sight of our country’s long and proud history of due process and
respect for civil liberties.
The Enhanced Border Security Bill includes real
solutions to real problems. It also
recognizes that we cannot achieve security without accountability. Database integration that is not
combined with well-trained inspectors, investigators, and consular officers is
an insufficient response to our security needs. Equally important, we cannot
expect our federal agencies to be able to look into the minds of individuals
with no criminal records to find a potential terrorist. Terrorists do not check off the
boxes on a form to indicate that they are, or may be, terrorists. We thus need to make sure not to pose
false solutions to real problems and thereby lull ourselves into a degree of
security we have not achieved.
The border security bill is premised on two
facts. First, enhancing our
intelligence capacity is key to our increased security. The face of terrorism is not tied
to one nationality, religion, or ethnic group. The horrific terrorist action in
Oklahoma is an ever-present reminder to us of that painful fact. Any changes in immigration policies or
procedures must allow our federal agencies timely access to valuable and
reliable intelligence. Second, our most effective security strategy is to keep
out those who mean to do us harm, while admitting those who come to build
America and make our country stronger.
Immigration is not a synonym for terrorism. The problem here is terrorists, not
immigrants. We need to isolate
terrorism, not America.
The Enhanced Border Security bill’s provisions
reflect two important understandings about our country and our needs—namely,
that we are a nation of immigrants, and that we must undertake any reforms in
ways that do not destroy our economy and commerce. The U.S. is an integral part of the
world economy, with global business, tourism, and migration serving a pivotal
role in our economic prosperity. As we take important and needed steps to
enhance our security, we must seek
to ensure the efficient flow of people and goods across our borders. If we do not, we risk both chaos at our
borders and the destruction of our economy, and along with it, the ability to
pay for our national security.
“Fortress America” is an undesirable and impractical solution that
repudiates our history and our economic and social needs as well as the current
reality of our global economy.
Nearly 500 million entries occur annually by
people who come to the U.S. as tourists, business people, students, or to visit
with their families. Less than one million annually settle here as immigrants.
Living in a border community underscores on a daily basis the imperatives this
flow creates and the importance of this bill, and the necessity of balancing our
security needs with the fact that we are a nation of immigrants and that we must
continue to facilitate the free flow of people and goods.
After September 11, border communities
experienced first hand the need for federal agencies to work together. These
communities dealt with repeated inspections of same-day crossers without any
modification of procedures to reflect the waste of resources that occurred
whenever the same individuals were repeatedly put through the same enhanced
inspection processes. Pedestrians and passenger vehicles waited more than 5 to 6
hours to enter the United States, a delay that overtaxed our border agencies and
reduced the effectiveness of our inspectors. While patriotism and a concern for our
country’s security led these communities to tolerate these disruptions, many
asked if these procedures really were making us safer. I fear that the answer is
“no.” In the meantime, at a time of
economic downturn, border communities faced further suffering as a result of our
economic interdependence on our neighboring countries. From the perspective of this nation’s
border communities, the Border Security bill presents a reasoned and timely
approach to this challenge of balancing our security with our economic
In summary, AILA urges the bill’s swift passage
because it reflects the following:
We must enhance our security as a nation of
immigrants. Our immigrant heritage
remains central to our national identity and helps explain our nation’s vitality
We must enhance our security in ways that will
not destroy our commerce or economy or inhibit the efficient and secure flow of
people and commerce at our borders and ports of entry. Our economic security is essential to
our national well-being and contributes to our ability to enhance our national
security while improving our nation’s global competitiveness.
The key to enhancing our national security is
increased intelligence provided on a timely basis to the appropriate federal
Our best protection is to focus our security
resources where they are most needed.
We must be able to identify and separate low risk travelers and
facilitate their entry. Such measures are more effective and more easily
implemented than measures that focus on persons after they enter the U.S. In all cases, we need to make sure that
we use our resources in the most effective way possible to keep out those who
seek to do us harm, not those seeking to come to our country for the reasons
that people have always come here, including escaping persecution, desiring to
be reunited with their families, working legally in the U.S., investing or
conducting business in the U.S., or visiting this country as tourists.
Congress addresses the need to enhance our national security and the many
important as well as complex issues raised in this discussion, it is important
to recognize that:
Senate Needs to Pass the Enhanced Border Security and Visa Reform Bill as a
Package: All the various parts of the border security measure are needed to
enhance our security. The different
provisions in the bill fit together to create an effective border security and
visa security-related reform initiative.
Selectively passing only some of this bill’s many important provisions
will leave dangerous gaps that threaten our security and decrease the
effectiveness of our federal agencies.
The bill’s provisions reflect the reality of the federal synergies
inherent in our current immigration system, and recognize that enhancing our
security will require the combined efforts of many federal agencies and the
support of Congress and the Administration. The bill also recognizes that our
security is further enhanced by defined cooperative efforts with our Canadian
and Mexican neighbors. We cannot
achieve security-related goals in an international vacuum.
Bill Needs to be Quickly Passed: It is vitally important that this measure
be passed and signed into law with all due haste. Delay threatens our safety and
well-being and flies in the face of the gravity of the situation created by the
incomprehensible events of September 11.
The bill’s provisions include changes in the policies, practices, and
procedures of several federal agencies including, but not limited to, the
Immigration and Naturalization Service (INS). While reorganization of that agency is a
top congressional priority, we cannot afford to wait until that task is
undertaken to implement the necessary changes advanced by the border
security bill. We need to
move forward now to implement the important reforms included in the bill. How
can we say “wait” to those lost on September 11 or to their surviving families
Our urgent need to move forward on this bill is underlined by
the fact that our border security concerns go beyond the INS and its
coordination, which is a primary goal of the bill, needs to be addressed
immediately, as vividly illustrated in Inspector General Fine’s February 28,
2002 testimony on the Visa Waiver Program.
In his testimony before the Subcommittee on Immigration and Claims of the
House Judiciary Committee, Inspector Fine notes that in July 2000, the INS
submitted 22 projects to the U.S. Customs Service requesting modifications to
the Interagency Border Inspection System (IBIS), which the Customs Service
manages. One of these changes
mandated via IBIS was the entry of an alien’s passport number upon primary
inspection in order to enhance the interdiction of fraudulent passport users.
The Customs Service would not pay for the revisions from its own budget, and INS
did not receive funding for this effort until FY 2002. Perhaps timely funding would have been
appropriated if there had been more intra-agency
The Administration and Congress Must Support Adequate
Funding for the Bill’s Initiatives: Given the bill’s very ambitious
deadlines, the Administration and Congress need to step up to the plate and
provide the federal agencies with the staffing and funding levels necessary to
implement this measure’s provisions.
The Bush Administration’s proposed FY 2003 budget is a good first step,
but we must be prepared to fund this effort generously, with Congress and the
Administration reviewing how the agencies use these funds. The functions
targeted in this bill have been neglected for decades, and it will take much
patience, time, congressional attention, and sufficient appropriations to
achieve the goals of this legislation.
Administration and Congress Need to be Prepared to Respond to Potential Problems
with Mandated Deadlines: Some of the bill’s provisions, particularly several
of the mandated implementation deadlines, may impact negatively on cross border
commerce and travel. Certainly, the
goal of exit and entry control at our land ports needs to be carefully
reviewed. The investment in
infrastructure alone could prove to be significant (for example, certain land
ports will have to add lanes for exit control inspection). And these costs do not take into account
the necessary staffing increases.
The Administration and Congress need to be open to effective
alternatives, alert to the consequences of short time frames, and willing to
modify these deadlines as merited, and, in some cases, provide alternatives
and/or appropriate expedited funding.
Agencies Need to Step Up to the Plate: The federal agencies, especially the
INS, the Department of State (DOS), and the U.S. Customs Service, play critical
integrated roles in enhancing our nation’s security. With sufficient funding, the provisions
in the Border Security Bill will give federal agencies the wherewithal to
achieve their goals. For their part, the agencies need to be up to the task of
implementing major reforms that address our security needs and, at the same
time, recognize the continued importance of immigration to our nation: people
will continue to seek entrance to the U.S. to visit, reunite with their
families, contribute to the American economy, and seek safe haven. The efficient flow of cross-border and
international commerce must continue to fuel our economic recovery and
growth. We also cannot tolerate
inter-agency or intra-agency disagreements that threaten to derail the goals of
the bill, for we do so at our collective peril.
Enhanced Border Security and Visa Reform Bill highlights the urgent need for the
U.S./Mexico Immigration Agreement to Help the U.S. Address National Security
Concerns: These discussions offer the United States the opportunity to align
our immigration policies with our national security needs, market forces, and
family reunification goals.
Bilateral cooperation in enforcement efforts regarding illegal
immigration, an alternative for hardworking immigrants already here filling
legitimate labor needs to earn legal status, a new temporary program for
essential workers to fill identified labor needs, and more visas for workers and
family members are initiatives that will contribute to our security. Because the Border Security bill creates
the additional impetus for Mexico and the U.S. to coordinate and cooperate, it
follows that by encouraging and facilitating legal immigration, both countries will be able to focus
their resources on terrorists and people engaged in smuggling, trafficking, and
other criminal activities.
Effective Reorganization of the INS and Border Functions: A reorganization of the INS tops the
congressional agenda and must take place.
However, as noted earlier, such restructuring must not delay the passage
of the Border Security Act.
Reforming the INS has dramatic implications for the border and, hence,
border security. Any reforms of the
INS must recognize that the inspections function, by its very essence,
represents the competing missions of the INS. Inspectors both process thousands of
applicants for entry documents while simultaneously trying to identify and
interdict criminals or potentials criminals. The enforcement and adjudication aspects
of inspections need to be closely coordinated, as do INS and U.S. Customs, the
two primary agencies staffing our ports of entry.
inter- and intra-agency coordination will be harmed by any proposal that would
split off INS inspections and other aspects of INS enforcement from the rest of
the agency, as has been contemplated by reports about a proposed border security
agency. That type of splitting merely adds another cook in an already
over-crowded kitchen. Rather, some
form of unified port management may provide the needed solution, and merits
further investigation. Unified port
management does not require the reinvation of the proverbial wheel by forming a
new single federal agency. Instead,
port efficiencies are achieved through community and agency involvement to
create a port authority reporting to a governing body comprised of agency and
Administration members. Such a body
would clearly and decisively react to port of entry security, staffing,
infrastructure, and policy needs.
All of these needs must be coordinated to achieve the goal of enhanced
border, and hence, national, security.
ENHANCED BORDER SECURITY AND VISA REFORM BILL INCLUDES NEW AND NECESSARY
other provisions, the Enhanced Border Security bill includes increased funding
for the DOS and INS, increased access to lookout lists, reforms at our
consulates, the use of new technologies, direct government funding of these
technologies, more pre-inspections abroad, a study of the creation of a North
American Perimeter Safety Zone, reforms to the foreign student program, and a
workable entry-exit control system. These and other provisions in this measure
will help enhance and create layers of protection that stand between us and any
potential terrorist adversaries from abroad. The bill’s provisions interrelate with
each other to create a more effective security net and the foundation necessary
to enhance our security, and include the following.
1. Increased Staffing and Funding for DOS
and INS and Interagency Data Sharing
Border Security bill authorizes increased personnel, technology funding and data
access for the DOS and INS, and also provides additional training for INS and
DOS staff. These provisions provide an important first step. Clearly, both agencies need increased
staffing levels and funding to appropriately handle their heightened
security-related responsibilities post September 11. Staffing shortages already were
prevalent in INS inspections and investigations prior to September 11. In addition, the consular corps for
years has been overtaxed and under-resourced.
funding has left these agencies with technologically obsolete and incompatible
computer systems. Some offices,
especially those overseas, do not have adequate computer capacity, much less
sufficient access to Internet resources.
In order to effectively fight terrorism by enhancing our intelligence
capabilities and improving our border security, both the DOS and the INS need
this increased funding to upgrade their technological infrastructures. However, Congress’ active oversight will
be necessary to ensure that funding is used wisely and our goals are achieved.
Bush Administration’s FY 2003 budget includes $11 billion for border security.
This funding is a critically
important down payment and a significant first step in providing the
money needed for long-overdue changes.
However, the reforms this measure contemplates will demand large,
multi-year commitments from Congress and the Administration. It is necessary and
appropriate that such funding come from direct federal appropriations.
Technological capacities at our federal agencies cannot be fully supported
through user fees.
The Use of New Technologies
Border Security Bill recognizes that in order to gather and make accessible a
great range of information about individuals and their identities, it is
critical to make use of existing and emerging technologies to achieve the most
reliable means of verifying identity. The bill seeks to upgrade the
technological capacities of the government so that federal agency personnel are
better trained and equipped to use new technologies to effectively screen out
potential terrorists. The bill also includes provisions for the issuance of
machine-readable, tamper-resistant, travel documents with biometric identifiers
that would promote the use of secure passports and visas resistant to
counterfeiting. The federal government needs to fund the development and use of
these new technologies and ensure that the various federal agencies coordinate
compatible efforts in this area.
Given the importance and complexity of these efforts relative to the
short time frames provided in the bill, Congress needs to be willing to modify
these deadlines as needed.
also is important to recognize that as we attempt to strategically balance our
security concerns with our economic needs, we need to test these new
technologies and staff them appropriately.
And the need is acute. After
September 11, people in the border pedestrian lines waited 4 to 6 hours to enter
the U.S., due to the mandate that all applicants for entry be subjected to an
Interagency Border Inspection System (IBIS) security check. Because of a lack of scanners, other
equipment, and staffing, the ports were backlogged and incapable of initiating
any inspection efficiencies.
Interoperable Data System, Lookout Lists, and Protections
Enhanced Security Bill includes a provision requiring the development and
implementation of an interoperable data system to provide current and immediate
access to information contained in the databases of federal law enforcement
agencies and the intelligence community that is relevant to visa issuance
determinations and determinations of an alien’s admissibility or removability.
U.S. federal agencies, as well as international law enforcement officials, need
real time, direct access to certain information from the different agencies’
databases. The “lookout lists” created by these databases include the names of
people who should not be admitted to the U.S. or who should be pulled aside for
questioning should the authorities come into contact with them. Increased
funding would allow the agencies to build up their technological capacities so
that DOS and INS could directly access the FBI’s and other agencies’ databases.
Direct and timely access to this data would enable law enforcement agencies to
act immediately to identify those high-risk individuals who seek to enter
the U.S. or receive other immigration benefits. Names and relevant identifying
information could assist agencies in interdicting individuals.
bill also includes important safeguards against potential abuse of this data by:
limiting the redissemination of information; ensuring that such information is
used solely to determine whether to issue a visa or to determine admissibility
or removability; ensuring the accuracy, security, and confidentiality of
information; protecting any privacy rights of individuals who are the subject of
such information; providing for the timely removal and destruction of obsolete
or inaccurate information; and doing so in a manner that protects the sources
and methods used to acquire intelligence information. The bill also addresses
the need for algorithms to account for various name and language
safeguards will become even more necessary as the lists increase in size and
unfamiliar names from various regions of the world may be incorrectly keyed in
to a database. We must make every
effort to ensure the accuracy and timeliness of the names on these lists so that
the right, not wrong, individual is targeted.
4. Needed Reforms at U.S. Consulates
Enhanced Security Bill recognizes
that our intelligence gathering can be further improved by increasing funding
for the DOS, improving training for consular officers, reforming the Visa Waiver
Program, tracking stolen passports, establishing a Terrorist Lookout Committee,
restricting visa issuance procedures for those from designated states sponsoring
terrorism, and enhancing the access of the DOS to information relevant to
screening visa applicants who pose a potential threat to the safety and security
of the U.S. Consular staff cannot
be expected to interdict potential terrorists without timely access to relevant
intelligence and agency database information, access to the Internet, and
relevant training. In addition, to
properly address security concerns, DOS needs additional consular staff as well
as the attendant support staff and facilities.
the importance of this work, AILA would support upgrading the status of the
consular officer who interviews visa applicants to determine visa eligibility
and assess potential fraud allegations.
Currently, more junior personnel with less hands-on visa application
interviewing experience perform this function. AILA supports the placement and
rotation, if necessary, at consular posts of a core of highly trained and
specialized civil service visa processing specialists, fully trained in the
complicated area of U.S. immigration law, who would be required to take a
certain number of continuing consular education courses to be considered for
promotion or pay increases.
decisions on visa issuance need to be reviewable. In these times of heightened scrutiny
when it is much easier than ever to just say, “no,” such review is vital to
ensure the integrity of the visa application process. Certainly, when comparing the level of
accountability to which INS is held versus the DOS, the DOS is insulated from
core precepts of administrative and judicial review to which INS is subject.
AILA members know that many INS headquarters policies or regulations have been
enhanced and improved through our judicial process, and in many cases have been
strengthened through judicial scrutiny.
We believe that such a review process is necessary so that DOS consular
decisions mirror the checks and balances that are central to our
democracy and our judicial system. Along with an avenue for review of the
denial, we recommend providing any visa applicant or applicant for entry who is
denied a visa or entry with the reasons for the denial. In those cases where the adverse
decision is affirmed, a visa applicant should at least be provided with a means
of appeal to the U.S. District Court for the District of Columbia.
addition, consular authority to deny the presence of legal counsel at consular
interviews should be rescinded since such authority enhances the ability of
certain consular officers (certainly not all) not well-versed in the law or
unwilling to provide a modicum of due process to deny applications not based on
fact and/or law.
5. North American Perimeter Safety Zone
Enhanced Border Security Bill calls for greater cooperation between the U.S.,
Mexico, and Canada through the study of the feasibility of creating a North
American National Security Program.
This program would facilitate the creation and implementation of a North
American perimeter security zone to increase the collective security of all
three nations. Such a North American perimeter would bolster security through
law enforcement coordination, intelligence sharing, and better joint use of
enforcement resources. Such efforts
would reduce the chance that someone wishing to do harm to the U.S. would travel
to one of our neighboring countries and then cross by land into the U.S.
cooperation among the three governments in immigration enforcement should
include a plan to ensure that asylum seekers have meaningful access to
protection. While Mexico has
recently acceded to the refugee convention, access to asylum remains
problematic, particularly for migrants intercepted at Mexico’s southern
border. On the other hand, Canada
should not be pressured into diminishing protections for refugees. All countries in the region can and
should strengthen security measures.
None should be required, however, to lower their protections for refugees
to the “lowest common denominator.”
North American security cooperation also addresses the issues of smuggling and
trafficking, the European experience is particularly relevant regarding
protection for asylum seekers.
The United Nations High Commissioner for Refugees (UNHCR)
commissioned a report that concluded that the majority of asylum seekers
arriving in the European Union have been smuggled or trafficked. The report also states that in the
European Union, “the effects of blanket enforcement measures, such as common
visa policies, readmission treaties, carrier sanctions, and airline liaison
officers (pre-inspection personnel) act to deny refugees the possibility of
illegal exit from the regions of their persecution.” The report recommends that European
nations review their migration and asylum policies to open other channels to
people fleeing persecution in their native countries. This recommendation includes
incorporating the right to seek asylum and the responsibility of
non-refoulement into anti-trafficking and anti-smuggling policy,
recognizing that trafficking and smuggling are both “inherently abusive” and
that both trafficked and smuggled persons can be refugees, thus improving
reception conditions, and increasing family reunification.
6. Preinspection and
part of the study of the feasibility of a North American Perimeter National
Security Program, the bill provides for a study of preinspection and
preclearance programs. U.S. preinspection programs currently are in effect in
only five countries: Canada, Ireland, Bermuda, the Bahamas, and Aruba. In these locations, passengers are in
effect “preinspected” for admission to the U.S. before ever boarding a
plane—passports are checked and names are run against the applicable lookout
lists. This preinspection process
allows more time for inspection and increases the likelihood of a more thorough
check. It also would move our
system from one that focuses on determining a person’s eligibility for admission
into the U.S. at a port of entry to one that focuses on determining that
person’s eligibility at the point of origination. This process also would
decrease the volume of applications for entry at our air ports of entry. (The land ports of entry would receive
less of a realized benefit from this procedure, but the preclearance program
described below available in a frequent traveler program would enhance
efficiency and security at our land ports of entry.)
and DOS will need to jointly recommend where such additional preinspections
facilities should be located, as it would be impractical to undertake this
procedure at every airport in the world.
It also will be critical to clarify in advance with host countries any
sovereignty issues that might arise when someone is to be arrested by U.S.
officials working cooperatively with local authorities at the preinspection site
who have the power to arrest and detain.
Such cooperation should include assurances that suspected terrorists are
not released because the host country authorities do not view the threat posed
by the individual as seriously as do U.S. authorities. These programs also will raise numerous
international law concerns in which the laws of the host country do not
recognize certain laws and procedures followed under U.S. law. When a country cooperates in such
preinspection programs, those inspected should benefit from expedited admission
upon arrival to the U.S.
Border Security bill also contemplates creating programs that would enable
foreign national travelers to the U.S. to submit voluntarily to preclearance
procedures that the DOS and INS would establish to determine whether a traveler
is admissible to the U.S. Such
preclearance programs also would allow more time to review travelers’
information and compare such information with information contained in the
databases of federal law enforcement agencies and the intelligence
community. The INS already has
established precursors to these programs.
For example, the SENTRI program, which is utilized in the Dedicated
Commuter Lanes on the southern border, require applicants to undergo a ten print
FBI fingerprint check and various customs and INS clearances as well as a seven
point inspection of the car enrolled in the program. These programs allow the federal
agencies involved in inspections to winnow the wheat from the chaff and focus
their security reviews on higher risk applicants for entry. In addition, the NEXUS program (which is
similar to, but less costly than SENTRI), is moving forward rapidly toward
implementation on the northern border.
The U.S. Customs Service also is testing a PASS program for commercial
drivers that requires preinspections and provides for expedited clearance of
cargo to enrollees.
is critical for these programs to succeed is that they be integrated. Enrolled frequent travelers should be
able to use their issued preclearance documents at any port of entry. Otherwise, we duplicate efforts, costs,
and staffing with no improved security benefits. In addition, the benefits to this
enrollment should extend to entry into Mexico and Canada to improve effective
border crossings and entries at air and seaports.
needs to be prepared to fund such preinspection and preclearance programs. As
with other programs to increase security and deterrence, the federal
government’s role is key because of the significant costs in setting up and
maintaining these programs. As to preclearance programs, the benefits of a high
volume of enrollees must be weighed when contemplating against pass through
costs to the user. In this
instance, it is in our national interest and will reduce overall costs through
preventative planning to waive the fees to enroll in these preclearance
any preinspections/preclearance system must provide for mechanisms, including
specially trained personnel, to assure that legitimate asylum seekers are
afforded a meaningful opportunity to seek protection.
7. Passenger Manifest Lists
Border Security bill requires that all commercial vessels or aircraft coming to
the U.S. from any place outside the country provide manifest information about
each passenger, crew member, and other occupant of the vessel or aircraft to an
immigration officer prior to arrival in the U.S. In addition, each vessel or aircraft
departing from the U.S. for any destination outside the U.S. must provide
manifest information before departure. The information that must be provided for
each individual listed on the manifest is extensive and includes: complete name
of the applicant, date of birth, citizenship, sex, passport number and country
of issuance, country of residence, U.S. visa number, date, and place of
issuance, when applicable, alien registration number, when applicable, U.S.
address while in the U.S., and “such other information the Attorney
General...determines as being necessary for the identification of the persons
transported and for the enforcement of the immigration laws and to protect
safety and national security.” The
manifests must be transmitted electronically by January 1, 2003. The bill also requires the President to
conduct a study, within two years of enactment, on the feasibility of extending
the new manifest requirements to land carriers transporting persons to the U.S.
at the time of take-off that all airlines transmit passengers’ names to the
destination airport be checked against the look out list is an important
security tool. Through their reservation systems, airlines know in advance who
will be flying to the U.S.
Transmitting the list in advance would give U.S. authorities the
opportunity to compare the passenger list to the lookout lists, thereby
preventing the entry of and/or apprehending those who should not be permitted to
enter the U.S. Currently, about 75
percent of airlines transmit these lists. In addition, such lists would assist
in the review of applicants for entry under the Visa Waiver Program prior to
their departure from the point of origin, which would enhance the level of
security related to program participants.
has concerns about the impact of the manifest requirement, if not efficiently
implemented. The effectiveness of
such a system depends on the INS having adequate technology and personnel to
make swift and efficient use of the information. Preinspection and preclearance programs
should facilitate the process for incoming travelers and reduce some of this
burden, but appropriate staffing and procedures will be critical to
success. In addition, if
preinspections are conducted with meaningful safeguards to guarantee protection
for asylum seekers, then the transmission of passenger lists should not
compromise the safety of asylum seekers who may be en route to the U.S.
also believes that the requirement to submit manifest information prior to
departure from the U.S. will be more problematic and will cause delays in
departures and possible chaos at our nation’s airports. It will be critical to exempt our
frequent travelers enrolled in pre-clearance programs from this process. In addition, we must be prepared to
develop workable alternatives that meet both security and transportation
concerns. If we are ever to
effectuate exit control, it will be easier to test the principle at air and
8. Entry-Exit Controls
needs to ensure adequate personnel and technological improvements at and between
our ports of entry. The August 2001 GAO Report, “INS Southwest Border
Strategy: Resource and Impact
Issues Remain After Seven Years,” clearly identifies that security risks exist
at both our northern and southern
borders. The Border Security bill implements an integrated entry and exit
data system included in the INS Data Management and Improvement Act of 2000
(Pub. L. No. 106-215) which provided for the system first contemplated by
Section 110 of the 1996 immigration law, the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (IIRAIRA) (Pub. L. No. 104-208).
developing this entry-exit system at points of entry into the U.S., it is
important to recognize the implementation challenges and possible disruptions to
our commerce likely to be caused by such a system. For instance, implementing
Section 110 at land ports is extremely problematic from infrastructure,
staffing, and cost perspectives. In
fact, many of our land ports have no place to expand to encompass outbound
inspections. Furthermore, significant numbers of people would be involved. More than 400 million (about 80% of all
inspections) are done annually at our land borders. About 800,000 border
crossings are made daily between the U.S. and Mexico, and about 260,000 cross
each day between the U.S. and Canada. A June 1998 report from the Senate
Judiciary Committee, then chaired by Senator Orrin Hatch (R-UT), noted the
catastrophic delays that would accompany the implementation of a Section 110
entry-exit system at land borders.
For example, the report cited testimony from an earlier hearing by a
witness who estimated that “assuming the most efficient and remarkable entry and
exit procedures in the world that will take only 30 seconds per vehicle, and
making the equally optimistic assumption that only half the vehicles have to go
through the procedures, that would amount to an extra 3,750 minutes of
additional processing time each day” at the Ambassador Bridge in Detroit. The witness then pointed out that there
are only 1,440 minutes to a day, which means that implementing a Section 110
entry-exit system at that land border port of entry would lead to a delay of
more than 2 1/2 days.
also must recognize the limitations of such a system if we do not also enhance
our intelligence capacity. The Senate report also noted that it is highly
questionable if implementing Section 110 would ultimately provide limited, if
any, assistance in prosecuting individual visa overstayers, and would have
nothing to do with stopping terrorists or traffickers. An automated entry-exit
control system’s database will in no way provide information as to which
individuals might be engaging in terrorism or other unlawful activities. It would however have the potential of
identifying suspicious travel patterns, if the individual utilized the same
identity. We believe that the use
of this system to track or locate terrorists or potential terrorists is not a
realistic goal, and that our precious resources would be better spent on other
aspects of this bill.
Reforms to the Foreign Student Program
Border Security bill strengthens the monitoring aspects of the foreign student
program provisions contained in the 1996 immigration laws, mandates the
collection of additional information related to students, and requires the INS
to periodically review schools authorized to admit foreign students to ensure
that the schools are complying with record keeping and reporting
requirements. If an institution or
program fails to comply, its authorization to accept foreign students may be
the bill requires the Attorney General, in consultation with the Secretary of
State, to establish an electronic means to monitor and verify the various steps
involved in admitting foreign students to the U.S. such as: the issuance of
documentation of acceptance of a foreign student by an educational institution
or exchange visitor program; the transmittal of such documentation to the
Department of State’s Bureau of Consular Affairs; visa issuance; the student’s
admission to the U.S.; the registration and enrollment of the student in his or
her institution or program; and any other relevant act such as changing schools
or termination of studies or program participation. The bill also requires schools to notify
the INS if a student has not reported for school more than 30 days after the
deadline for registering for classes.
data that must be collected under the bill includes: the student’s date of
entry, port of entry, date of school enrollment, date the student leaves school
(e.g., graduates, quits), and the degree program or field of study. Student visa applicants also must
provide additional information to the consular officer including their address,
names and addresses of relatives, names of contacts in the country of residence
who can verify information about the student visa applicant and previous work
history, if any, including the names and addresses of employers.
Border Security bill also establishes an interim system to be used until the
program included in the 1996 law is fully implemented. Under this temporary system, the State
Department is prohibited from issuing student visas unless the agency has
received electronic evidence of acceptance documentation from an approved
academic or other institution and the consular officer has adequately reviewed
the applicant’s visa record. Once a
visa is issued, the Secretary of State must transmit to the INS notice that the
visa has been issued, the INS must notify the academic institution that the
alien has been admitted to the U.S., and the institution must notify the INS not
later than 30 days after the class registration deadline should the alien fail
to enroll. In addition, within 30
days of enactment, the INS must provide the State Department with a list of
approved institutions authorized to receive nonimmigrants.
AILA believes that foreign students are not the equivalent of terrorists, we
support the efforts of the INS to ascertain a student’s compliance with their
terms of entry to the U.S. We do
not support the use of a student visa to enter the U.S. to achieve a
non-education-related objective. We
are concerned, however, that students not be subject to unmerited scrutiny in
the application for visas. Our
institutions of education are enhanced by the participation of foreign students
and such institutions allow the U.S. to spread its message to other countries of
the benefits of democracy and tolerance of ethnic and religious diversity. That message must continue to be
delivered not only through such valuable efforts as the Peace Corps, but also
through our educational institutions and foreign student programs.
10. Other Important Provisions in S.
Enhanced Border Security Bill includes many other important provisions that
merit bipartisan support. Of
particular relevance to the southern border is this measure’s extension by one
year of the deadline for border-crossers to acquire machine-readable laser visas
from DOS. Although, the DOS started
issuing laser visas in 1998 as a replacement for border crossing cards issued by
the INS, prior to September 11, DOS was requesting an extension of the October
1, 2001 deadline for such replacements due to volume and processing delays. On October 1, the economic downturn
caused by enhanced border inspections was further exacerbated by the inability
of border crossing cardholders to enter border communities to shop. In addition, the INS gave no quarter to
these border crossing cardholders by providing waivers for the laser visa
requirement for such visitors.
treatment was applied to one of our most favored trading partners and to
applicants who had gone through at least one prior document application with the
U.S. government. In comparison,
nonimmigrant applicants from Canada are visa exempt except in the E visa
category. Some DOS officials now
are stating that it should not be a problem if laser visa applicants, who have
waited three to five months to get a laser visa appointment at a consulate,
would have to wait a few more months.
Border communities have responded loudly and clearly to this position: It
will be a huge problem. Such a
position ignores the realities of border society and economy in which each day’s
events impact on the viability of the border. Border communities are symbiotic. Coming from a southern border community,
I can state unequivocally that any relief that would give Mexicans who are low
security risks and hold old border crossing cards the ability, based on their
prior cards, to cross into a border community and be inspected at land ports of
entry before their laser appointments would provide an economic life boat to
border businesses. In the interim, old border crossing cardholders could be
mandated to undergo a security check prior to entry to address any
HAS BEEN ACHIEVED SINCE SEPTEMBER 11
September 11, the status quo has undergone much change, with federal agencies
(INS, Customs, Coast Guard and the other border agencies) coordinating and
cooperating at unprecedented levels to make more effective the processes at the
border both to protect our homeland and efficiently process legitimate trade and
travel. In addition, our nation’s
agreements with Canada and Mexico already are helping us to increase the
security of all three countries.
initial efforts underscore the importance of coordination and cooperation among
our federal agencies in the U.S. as
well as in other countries and reinforce the need for the Border Security bill to reinforce,
invigorate, and expand on these preliminary efforts. Some of these efforts are:
Personnel at our Ports of Entry: The INS detailed hundreds of inspectors and
Border Patrol agents to the northern border and other ports of entry to enhance
the inspection process and guard against unauthorized entries. Customs
inspectors were sent to northern border ports of entry to make sure that they
were staffed at all times by at least two agents. The Coast Guard sent additional patrols
to the ports. Unfortunately, the
INS and the U.S. Customs Service had difficulties implementing coordinated
policies at ports of entry as to inspections issues, creating certain
inefficiencies and agency disconnects.
Sharing by the Federal Agencies: On January 15, 2002, the INS was able to
utilize the Consular Consolidated Database maintained by the DOS Bureau
of Consular Affairs to help assess admissibility of applicants for entry to the
U.S. In addition, the Customs Service enhanced the access of the INS and DOS to
the Advance Passenger Information System, a database that includes information
on arriving commercial air passengers.
Creation of the
Foreign Terrorist Tracking Task Force: President Bush, in October 2001,
created the Foreign Terrorist Tracking Task Force. Comprised of representatives from the
FBI, INS, DOS, Customs Service, Secret Service, and the intelligence community,
this taskforce shares information previously unavailable to the
federal agencies and is charged with enhancing security by denying entry
to terrorists and pursing those already in the country.
Agreement with Canada: In December 2001, the U.S. and Canada signed the
“Smart Border Declaration,” which outlines a 30-point action plan through which
both countries will collaborate to identify and address security risks “while
efficiently and effectively addressing the legitimate flow of people and goods
back and forth across the Canada-U.S. border.” The declaration focuses on the secure
flow of people, goods, and infrastructure, and on coordination and information
Agreement with Mexico: During his recent trip to Mexico, President Bush and
Mexican President Fox finalized a 22-point “U.S.-Mexico Border Partnership
Action Plan.” This plan is a
comprehensive attempt to reconcile post-September 11 security concerns with the
need to keep commerce moving freely between the U.S. and its second largest
trading partner. The “smart border” deal aims to facilitate the legitimate flow
of people and commerce across our borders while screening out those who would
threaten us. Among other things,
the plan calls for the U.S. to pre-certify certain Mexican companies that would
electronically seal their containers in Mexico and receive express processing
treatment at the border. The plan
also calls for a study of the possibility of creating express immigration lines
at airports for people from the three NAFTA nations, and for Mexico and the U.S.
to share information on those applying for visas to travel to either country.
two countries also are discussing: improved sharing of intelligence in order to
thwart terrorists using Mexico to facilitate illegal entry into the U.S.; border
crossing practices that facilitate and streamline the passage of legitimate
people and cargo while identifying those that require more extensive screening;
and intensified joint efforts to crack down on human trafficking.
strongly supports the speedy passage of the Enhanced Border Security and Visa
Reform bill to allow the government agencies charged with addressing the
critical needs of border and visa reform to be successful in efforts to enhance
this nation’s security. We must
proceed swiftly with the entire bill, or else drastically hamper our response to
one of the most insidious challenges this country has faced.