Cite as "AILA InfoNet Doc. No. 04020512 (posted Feb. 5, 2004)"
American Immigration Lawyers Association
918 F Street, N.W.
Washington, D.C. 20004
February 4, 2004
Chief Inspector, Air and Sea Exit Manager, US-VISIT
Border and Transportation Security
Department of Homeland Security
1616 North Fort Myer Drive
Arlington, VA 22209
Re: Comments to Interim Rule "Implementation of the United States Visitor and Immigrant Status Indicator Technology Program ("US-VISIT"); Biometric Requirements" 69 Fed. Reg. 467-481, January 5, 2004
Dear Sir or Madam:
The American Immigration Lawyers Association (AILA) submits the following comments on interim regulations published in the Federal Register on January 5, 2004, implementing the US-VISIT program and authorizing biometric requirements. AILA is a voluntary bar association of more than 8,700 attorneys and law professors practicing and teaching in the field of immigration and nationality law.
AILA takes a very broad view on immigration matters because our member attorneys represent many types of persons seeking immigration and citizenship benefits in the United States. Our members represent tens of thousands of U.S. families who have applied for permanent residence for their spouses, children, and other close relatives so that they can lawfully enter and reside in the United States. AILA members also represent thousands of U.S. businesses and industries that sponsor highly skilled foreign professionals seeking to enter the United States on a temporary basis or, having proved the unavailability of U.S. workers if required, on a permanent basis. Our members also represent asylum seekers, often on a pro bono basis, as well as athletes, entertainers, and foreign students. Relevant to these comments, it is important to note that AILA members represent countless nonimmigrant visa holders who travel to and from the United States for business and pleasure.
AILA recognizes that it is vitally important to enhance our nation's security and we must do so in a way that balances our need for enhanced security with the cross-border flow of people and goods that are the foundation of our economic security which pays for our national security. We hereby offer suggestions on some ways that the US-VISIT program can strive to achieve that needed balance.
SUMMARY OF US-VISIT HISTORY
US-VISIT as a program has its roots in Section 110 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (P.L. 104-208). Section 110 created the concept of an entry/exit system that would have applied to all non-U.S. citizens who entered or exited the United States at any port of entry. The purpose of section 110 was to identify visa status violators, mainly overstays. Subsequent laws amended the deadline for implementation and some parameters of the program, though the general framework of section 110 remains in place.
The Data Management Improvement Act of 2000 (P.L. 106-215)("DMIA") amended section 110 to require that the entry/exit system use data already collected from foreign nationals and prevented the then-Immigration and Naturalization Service from imposing additional entry or exit documentary or data collection requirements. DMIA further mandated the development of a centralized, searchable database and provided implementation deadlines. The first was the December 31, 2003 deadline for implementation in the nation's air and sea ports. The next deadlines are December 31, 2004 for implementation at the 50 most highly trafficked land border ports of entry, and December 31, 2005 for all ports of entry.
The USA PATRIOT Act of 2001 (P.L. 107-56)("PATRIOT Act") mandated swift implementation of the entry/exit system and established a taskforce comprised of governmental and private industry members to oversee the establishment of the system. The PATRIOT Act also required the use of biometric technology and tamper-resistant documents which are machine readable at all ports of entry.
In response to concerns about the efficient flow of commerce and travel, Congress passed the Enhanced Border Security and Visa Entry Reform Act of 2002 (P.L. 107-173) which mandated the utilization of technologies including interoperable data bases that aid in the determination of who should be permitted entry into the United States.
The instant interim regulations were published on January 5, 2004, simultaneous with implementation of the first phase of US-VISIT at 115 airports and 14 seaports nationwide. The exit element of the US-VISIT system requires that a US-VISIT-subject foreign national comply with US-VISIT procedures when departing the United States through a port equipped with US-VISIT exit capabilities. Currently, only the Baltimore-Washington International ("BWI") airport and the Miami seaport have been equipped.
COMMENTS ON THE INTERIM REGULATIONS
The Exit Element of US-VISIT Should Be a Seamless and Intrinsic Part of Departure
As this program begins, there has been virtually no public outreach to inform nonimmigrants of the departure requirements. Because this process is new and only one airport is equipped for this processing, most travelers are unfamiliar with the departure requirements and the kiosks. Even if the departure kiosks are marked, this is not likely to be the focus of most travelers' activities in the airport. Most travelers are concerned with their personal safety and the security of their possessions, as well as where their airline gate is located, as they make their way through airports to arrive on time for their departure flights. Unless they have been strongly alerted to look for it, a kiosk that looks like an ATM is not likely to draw their attention, even with adequate signage.
Further, as the number of ports supplied with the US-VISIT departure kiosks is gradually expanded, there is no good method for notice to nonimmigrants of the new locations. The interim regulation requires that the designations of the equipped airports for departure be published in the Federal Register, but it's a rare case that traveling foreign nationals will be familiar with, much less have read, the Federal Register.
Unfortunately, the interim rule appears to be modeled on the failed NSEERS program with respect to the exit solution, and relies on the stick of draconian punishments for failing to participate in the system, rather than the carrot of good, efficient departure control. As we have seen with the NSEERS program, few people know about the requirement and it is easy to overlook it on departure.
For these reasons, sanctioning those who fail to utilize the kiosks on exit is unjust and illogical. To make the departure solution for US-VISIT at all feasible, it must be an intrinsic part of the exit process, and not something that the traveler must affirmatively seek out. Few travelers will be educated about immigration requirements to the level of looking for an automated machine, and the resources required to adequately publicize the need to seek out this machine are prohibitive. The exit solution must be designed to be user-oriented, which means that all travelers subject to it must be specifically directed to it, and not left to intuit that there is a process and seek that process out.
However, if the Department insists upon handling this system in the manner already discredited under NSEERS, then at a minimum, a proviso that any failure to utilize the exit system must be knowing and willful must also be included. If there is a government interest in enforcement of the departure requirements, there also must be a government interest in the fair and reasonable application of its laws and the admission of legitimate travelers to the United States for business and pleasure.
Section 215.8 Should Clarify that Pending Applications for Change of Status or Extension of Stay Will Serve to Protect an Individual Who Departs After the Period Authorized at the Time of Last Admission
AILA is concerned that pending applications for change of status or extension of stay properly serve to protect those who depart after "the period authorized at the last time of admission." The timely filing (prior to the expiration of the period of stay authorized at the time of last admission) of a bona fide change of status or extension of stay application results in the individual remaining in a period of authorized stay in the United States during the pendency of the application. The regulation should acknowledge that individuals who depart after the date on their I-94 card, but while they have pending, timely-filed change of status or extension of stay applications, will be considered to have complied with the departure requirements and not be recorded as overstays.
The Regulations Should Clarify the Waiver for Failure to Comply
Extenuating or emergent circumstances may prevent an individual from complying with the departure requirements. It appears that INA section 212(d)(3) would be the appropriate waiver application individuals in such circumstances who are seeking admission subsequent to failure to comply under section 215.8. Inclusion in this new section 215.8 of a clarification that an individual who willfully fails to comply with the departure requirements may apply for a waiver pursuant to section 212(d)(3) would serve both to reduce the already high level of confusion surrounding these new procedures, and provide a level of assurance of full and fair process with regard to the imposition of the severe consequences resulting from what may have been emergent or extraordinary conditions causing the failure to comply. With respect to our country's economic need for foreign travel and trade of services and goods, clarity of procedure is an important and facilitating factor.
The Regulations Should Provide for Access to Counsel
The Customs Service has long allowed access to legal representation at ports of entry to deal with issues arising concerning the admission of goods. Such a practice should be extended to foreign nationals visiting our country. Just put yourself in their place applying for admission to a foreign country. Would a U.S. citizen want to be denied access to counsel or even an embassy representative due to some misunderstanding or error at a foreign port of entry? If the Golden Rule was ever needed, it is at our ports.
These interim regulations make clear that the DHS intends to impose severe penalties for failure to comply with departure requirements. Given the need for greater publicity for nonimmigrants to be aware of the departure requirements, the potential for unintentional failure to comply is enormous. Exacerbating this disadvantage to nonimmigrants, there is not yet a system in place that guarantees accurate databases. Ensuring that all of the databases involved be coordinated has already proven itself a challenge to the DHS. The current system often enough does not show accurate information regarding an individual's status. An individual may have complied with the departure requirements, but somehow the information is not updated or even entered into the system, or an individual may have filed for an extension of stay, but departed after the date appearing on his I-94 card. In either case, the system may incorrectly show that the applicant failed to comply because he or she departed after the date on the I-94 card.
In such a situation, it is very important, and would greatly facilitate processing, if the applicant is permitted representation by counsel at the time of application for admission. Allowing an individual access to counsel would minimize the major problems created by mistaken imposition of the severe penalties. For example, there is a great risk that a nonimmigrant whose record shows a failure to comply with departure requirements may be removed under expedited removal procedures. Permitting counsel to present evidence and make clarifications in a case could save both the nonimmigrant and the government substantial work time and cost and save the U.S. significant international embarrassment.
The Regulations Should Require the Government to Provide Proof of Departure
As the regulations require that an individual may be determined to have failed to comply with the terms of his or her status by failure to comply with the section 215.8 departure regulations, it is imperative that the regulations obligate the Government to provide proof of departure to those subject to the 215.8 provisions. Because the departure requirements are being implemented in a manner that requires individuals to use "self-serve" kiosks, there is great potential for harm to those who have trouble at the kiosk and or who properly comply with requirements, but, for a reason beyond their control, the kiosk does not properly record that individual's departure compliance.
A major problem with this type of system, or alternatively proposed hand-held devices which may be used by DHS personnel, is the lack of or limited database connectivity. An example of past problems includes the legacy INS use of the CLAIMS III database, which indicated the immigration status of foreign nationals. Use of that database was a frequent frustration because it was often inaccessible. Another example is the USCIS on-line case status inquiry system which is expected to be constantly updated. Nevertheless, information on the on-line system often has problems with not being updated, or simply containing mistaken information. Inaccurate or incomplete entry/exit data can have a severe impact on the ability of foreign nationals to obtain immigration benefits in or outside of the United States. Without proof of departure compliance, an individual has no ability to defend against technological error.
Mexican Laser Visa Holders Should be Exempt from US-VISIT
In order to meet the competing demands of national security and the efficient management of commerce and travel, the regulations should also exempt Mexican laser visa holders, except those who require an I-94 for entry. Mexican laser visa holders travel with great frequency in and out of the United States. Requiring their compliance with US-VISIT on admission now, and on departure later, will greatly hinder the smooth flow of travel on the Southern border. The laser visa biometric database maintained by the Department of State should be integrated into the US-VISIT biometric database. In this way, the government can effect its purpose so much more efficiently by merging the information for all laser visa holders without subjecting the land port of entry and the laser visa holders to US VISIT enrollment. Random IBIS checks would protect security concerns.
Other Suggestions for Improving US-VISIT
AILA has given considerable thought and attention to the issues surrounding entry and exit control, and suggests the following:
1. Establish an immigration specialist position at the ports of entry: It is important that immigration specialists be designated and accessible to apply our immigration laws. For consistency and accurate applications of our complex immigration laws, the decisions of these specialists should be directed and coordinated by immigration counsel within the office of the DHS General Counsel. Such legal counsel must be coordinated with benefit-related adjudications housed in United States Citizenship and Immigration Services (USCIS) and enforcement policy and procedures applied by United States Immigration and Customs Enforcement (ICE).
2. Provide notice of departure requirements upon entry: If the government is going to phase in the exit element and impose potentially serious consequences for failure to comply with departure procedures, the government should provide clear notice of this at the time of entry. Such notice should be dispensed clearly, and must be offered in many languages, in written and symbol formats. Because the program's requirements will be changing as more ports are designated and as the processes are adjusted, the instructions should be sufficient to provide notice of departure requirements, but not so specific that information may change prior to a foreign national's departure.
3. Don't conduct redundant security checks: Many border residents cross the international border several times per day. It is critical to integrate existing voluntary frequent traveler programs so that enrollment in one provides a uniform access process at all our ports of entry. There should be one consistent enrollment process for air, land, and sea admissions. The Application Support Centers in the U.S. could help facilitate the process for those already here to enroll in such programs by providing biometrics. The former U.S. Customs Service created the C-TPAT program, which is a joint government-business initiative to build cooperative relationships that strengthen overall supply chain and border security. Why not allow and encourage employees of qualifying employers to enroll in frequent traveler programs as well? In addition, goods programs must merge with people-related programs. For example, the NEXUS and SENTRI programs should merge and become the same uniform process. Why not allow such enrollment eventually at consular posts overseas as well? These actions require major funding and staffing, and yet they improve security and reduce congestion at our ports.
4. Place cameras at the ports-of-entry: Cameras have been used successfully at many ports to record the behavior and statements of the applicant and the officer. Immigration supervisors have praised the tool from a personnel perspective and embassies and applicants for admission have benefited from the recordings of this silent and objective witness. In addition, in some cases, these cameras could also implement cutting edge facial recognition technology to assist inspectors. These cameras should be installed at least in all secondary inspection areas.
5. Rethink the I--94 card: I-94 cards and I-94W for visa waiver applicants have never been secure documents. DHS should revamp this system and permit I-94 applications to be submitted via internet or, in instances where the applicant has biometric visa, at consular post locations. As an alternative, DHS should consider doing away with the I-94 admission document and allowing the VISIT system to track admission and give the person a receipt. Such a receipt could also be generated on line. Identity could be confirmed upon admission.
6. Do not use US VISIT as a substitute for increasing our intelligence capacity: Security experts agree that our national security is best enhanced by increasing intelligence and database security checks performed outside the country. DHS should examine ways to expand the use of pre-inspection stations and authorize pre-clearances for low-risk travelers. By clearing travelers before their voyage to the United States, inspectors will have more face time with applicants and could better scrutinize each applicant for entry. Such practices would reduce delays at the border and allow inspectors more time to do their job. Pre-clearances also would provide international travelers with a sense of certainty that they will be admitted into the U.S.
7. Make enforcement databases accurate: CBP should create an office of intelligence to liaise with the efforts of DHS to consolidate the watch list databases to ensure accuracy. Currently the IDENT biometric database does not have to comply with accuracy standards set forth in the Privacy Act. The concept of a watch list database is dependant on accurate information. There must be accountability to ensure accuracy. In addition, all public inquiries concerning enforcement-related database entries should be consolidated. The general public should be able to contact this office to timely remove inaccurate information to avoid the continuation of injustices tied to the dissemination and provision of any inaccurate information. Failure to do so should result in a cause of action against the agency for libel or defamation of character.
8. Develop efficient and open mechanism for correcting database errors: A complete and accurate interoperable database system must include a mechanism for correcting database errors. Currently this process is very difficult, if not impossible, to achieve since information can only be corrected by the agency that originally inputted the erroneous information. If that initial correction is achieved, then the aggrieved person must hope that the other agencies which have used that erroneous information notice the change and correct their records. Having incorrect information stored in databases serves only to hinder the inspections process and discredit the reliability of the security checks.
9. Increase the interoperability of database systems: DHS should prioritize its efforts to increase the interoperability of the database systems to give inspectors a more thorough and streamlined review of each applicant requesting entry into the U.S. Currently, the separate databases from the three immigration bureaus have not been fully integrated into US VISIT. Due to this lack of information transfer, visitors who have applied for visa extensions might be detained for overstaying their visas, when in reality; they had maintained proper visa status. Having complete and correct information will make the difference between having a workable secure system or a discredited inefficient one.
10. IDENT checks: Currently IDENT checks are being run at the time of US-VISIT enrollment at the U.S. Consulates (thereby delaying visa processing for each applicant by roughly three days) and are run at the ports of entry after the foreign national has entered the United States. IDENT checks must be given a priority status so that they are completed quickly and while the applicant for admission is at the port of entry.
11. Develop a biometric US-VISIT database: Currently the biometrics and biographical data of foreign nationals enrolled into US VISIT is warehoused within the IDENT biometric database. This purpose of this database is capture information on malefactors so that they may be identified and kept out of the U.S. By lumping US-VISIT enrollees in with criminals we are sending the message that immigrants are criminals. Furthermore, commingling these two groups makes it more likely that errors will occur within the database and innocent travelers will be denied entry into the U.S.
AILA concurs that enhancing our national security is in the interest of the United States. While we continue to seek and employ methods to improve our ability to protect our country, we must maintain those principles of fairness and process on which this country was founded. Moreover, to protect our economic and cultural future, we must ensure the orderly flow of tourists and business travelers in and out of the United States. The interim regulations contain severe penalties for failure to comply with exit requirements, and are absent procedures to manage innocent human and technical error, on the parts of both the nonimmigrant and the government.
We urge the Department of Homeland Security to revisit the interim rule on implementation of US-VISIT in light of these comments.
AMERICAN IMMIGRATION LAWYERS ASSOCIATION