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AILA Doc No. 01101801 | Dated October 17, 2001
Testimony of Jeanne A. Butterfield
American Immigration Lawyers Association
Before the Subcommittee on Immigration
Committee on the Judiciary
United States Senate
Effective Immigration Controls to Deter Terrorism
October 17, 2001
Mr. Chairman and Distinguished Members of the Subcommittee:
My name is Jeanne A. Butterfield and I am the Executive Director of the American Immigration Lawyers Association (AILA). I appear today as an observer and participant in the development of U.S. immigration policy for nearly twenty years, eight of those years with AILA. AILA is the national bar association of nearly 8,000 attorneys and law professors who represent the entire spectrum of applicants for immigration adjudications.
I appreciate this opportunity to present our views on current U.S. immigration policy and I hope to provide some useful perspectives on how we can develop immigration controls that are effective in deterring terrorism and enhancing our nation's security. We need to undertake this task on several fronts, with immigration reform being one important aspect of the effort. As we develop reforms in this area, we need to make sure that they are effective. We cannot allow false solutions to real problems to lull us into a degree of security we have not achieved.
We need to undertake reforms to our immigration system with this important understanding: that we are a nation of immigrants, that immigration remains central to who we are as a country and helps explain our success as a people and a nation. Furthermore, we must take on this task with the clear understanding that it is precisely in times of danger that we must fiercely defend our Constitution and the protections and liberties that distinguish us from other nations.
We must recognize that existing laws and procedures offer us significant protections and pose certain problems. I thus will begin with an overview of current measures and powers that the Immigration and Naturalization Service and Department of State already have that can be used more effectively, if properly coordinated with good intelligence information, to deter terrorism. I will conclude with some proposals about new measures that Congress could mandate that would add to our deterrence capabilities.
CURRENT POWERS AND PROCEDURES
1. Grounds of inadmissibility
Current immigration law provides the government with extraordinary powers to deny admission to any person we believe might be intending to come to the United States to violate our laws and endanger our safety.
Consular officers in posts around the world have virtually unreviewable discretion to deny a visa to any person for any number of reasons listed in our statutes. Further, as a second layer of deterrence and protection, anyone who is issued a visa abroad is subject a second time to these same grounds of inadmissibility when they present themselves to an INS inspector for inspection and entry at any U.S. port of entry (airport or land border). A person can be denied admission on either of these two occasions-denied a visa in the first instance, or denied entry in the second.
The Immigration and Nationality Act (INA) provides several broad national security-related grounds upon which any person can be denied a visa to enter the United States:
a) a person who a consular officer or INS has "reasonable ground to believe" seeks to enter the U.S. to engage, even incidentally, in any unlawful activity is inadmissible (INA Section 212(a)(3)(A)(ii));
b) a person who has engaged in terrorist activity is inadmissible (INA Section 212(a)(3)(B)(i)(I)); terrorist activity is broadly defined and includes, among the more commonly identified activities such as hijackings, the following range of activities (INA Section 212(a)(3)(B)(ii) and (iii)) :
1) the use of any firearm with the intent to endanger the safety of even one individual;
2) the solicitation of funds for terrorist activity or terrorist organization;
3) the solicitation for membership to engage in terrorist activity or in an terrorist organization;
4) the provision of any type of material support for terrorist activity or for any person who plans to commit a terrorist activity;
5) the gathering of information on potential targets, or any preparation or planning of a terrorist activity;
c) a person who a consular officer or INS has "reasonable ground to believe" is likely to engage after entry in any terrorist activity is inadmissible (INA Section 212(a)(3)(B)(i)(II));
d) a person whose entry or activities in the U.S. the Secretary of State has reasonable ground to believe would have potentially serious adverse foreign policy consequences for the United States is inadmissible (INA Section 212(a)(C)).
These extensive grounds of inadmissibility make it clear that the United States has extensive power and grounds to deny a visa or entry to anyone it has reason to believe may endanger the national security. The question properly before the INS, Department of State and U.S. Congress is how the various agencies that implement and enforce these laws can be provided with the necessary and timely intelligence information they need to properly apply these grounds of inadmissibility and prevent those who intend to commit terrorist acts from entering the country.
Unfortunately, our immigration admissions and visa issuance systems and laws are only as good as the information available to those enforcing them. We have yet to devise a system that will allow a U.S. consular officer or an INS inspector to gaze into a person's heart or mind and divine their intentions. Stricter scrutiny may deter the casual criminal, but it is unlikely to deter those who have no known criminal record, no evidence of association with an terrorist activity or organization, yet whose heart is intent on committing a heinous crime some months or years hence.
2. Grounds of deportability
Once in the United States, any temporary non-immigrant (visitors, students, temporary workers) or lawful permanent resident can be detained and deported if they engage in terrorist activity.
Again, the grounds for deportability are broad, and give the government the power to deport anyone who has engaged in terrorist activities, including all of the activities enumerated above: planning, fundraising, soliciting for membership, providing material support for an organization's terrorist activity (INA Section 237((a)(4)(B).
A person is also deportable if he has engaged in "any other criminal activity which endangers public safety or national security "(INA Section 237(a)(4)(A)(ii)). This ground of deportability does not require any criminal conviction.
If the government only later learns that a person was involved overseas in a foreign terrorist organization, or had otherwise engaged in a terrorist activity, that person too is later deportable, on the grounds that he was "inadmissible at time of entry".
Finally, an immigration judge has the power to deny asylum or other relief from deportation to a person who is otherwise eligible for that relief, if the person represents a threat to national security. Specifically, the statute includes mandatory bars to asylum relief for:
(a) anyone who "there are reasonable grounds for regarding...as a danger to the security of the United States "(INA Section 208(b)(2)(A)(iv)); or
(b) the alien is inadmissible or deportable under several of the terrorism-related grounds of inadmissibility or deportability (INA Section 208(b)(2)(A)(v)).
In short, the government currently has broad and sufficient powers to deport anyone who presents a danger to the United States on terrorism grounds. Of course, deportation is no deterrence for those who fully intend to end their lives while committing a terrorist act.
3. Detention Powers
The INS currently has very broad powers to detain someone pending and continuing through their deportation hearing and any subsequent appeal. Under current law, immigrants charged with deportability for terrorist activity or certain violent crimes have been found ineligible to even apply for release from custody (INA Section 236(c)). For those immigrants who have the right to seek release on bond before an immigration judge, that request can be, and is often, denied if the person is deemed to be a threat to national security, a danger to the community or otherwise present a risk of flight.
The current regulations, recently amended and republished as an interim final regulation in the Federal Register by Attorney General Ashcroft (8 CFR Part 287, amending Section 287.3(d)), provide further that a person may be detained without a warrant of arrest under the authority contained in Section 287(a)(2) of the INA. Under the regulation, as currently in force, a determination about whether actual immigration violation charges will be brought against a person will be made within 48 hours of the arrest, except in the event of an emergency or other extraordinary circumstance in which case a determination will be made within an additional reasonable period of time, whether the alien will be continued in custody or released on bond or recognizance and whether a notice to appear and warrant of arrest as prescribed in 8 CFR parts 236 and 239 will be issued. (emphasis added)
It is these already extraordinary powers of detention that have allowed the Attorney General to detain some reported 165 persons on suspected technical immigration violations in recent weeks, with no determination being made to date for many about whether they will in fact be charged or not. The question must be posed here: what is "an additional reasonable period of time" under the regulations? Is two weeks reasonable in current circumstances? Is five weeks unreasonable? Those being detained, the press, the advocacy community and the Congress surely deserve an answer to this question.
In new powers contemplated in the pending "USA" Act (S. 1510), the Attorney General will be given the power to implement mandatory detention of anyone he "certifies" that he has reasonable grounds to believe fall within the definition of "terrorist" or "terrorist activity" as outlined above. This new power will prevent a person so "certified" from seeking release on bond, whether or not the person is charged with deportability based on terrorist grounds or is simply charged with a technical visa violation.
These broad new powers, when enacted, must be used carefully and not be used to detain individuals indefinitely without proving that their detention is necessary to protect national security or the public.
4. Alien terrorist removal court
Congress in 1996 created the new Alien Terrorist Removal Procedures (INA Section 501 through 507). These procedures were designed to allow the government to conduct deportation hearings with the use of secret evidence. While the new court was to be composed of 5 district court justices appointed by the Chief Justice of the U.S. Supreme Court, a single justice is empowered to consider classified information presented ex parte and in camera.
In recognition of the extraordinary nature of such proceedings, certain protections were provided, including the right to be informed of the nature of the charges and a "general account" of the basis for the charges (the secret evidence), and the right to be represented by assigned counsel at government expense. (INA Section 504(b) and (c)).
To date, this new Alien Terrorist Removal Court has not been convened. The government has, however, used "secret evidence" in regular deportation hearings, primarily in the context of bond determinations and in opposing applications for discretionary relief, such as political asylum or adjustment of status. (See, for more details about past secret evidence cases, Akram, Susan, Scheherezade Meets Kafka: Two Dozen Sordid Tales of Ideological Exclusion, Georgetown Immigration Law Journal, Fall, 1999; 14 Geo. Immigr. L.J. 51)
The use of secret evidence is anathema to a democracy. Its use, in the rare instances where the government strongly believes it is necessary to protect the life of confidential sources, should be confined to proceedings in the "Alien Terrorist Removal Court". The law governing these special proceedings, in recognition of their extraordinary nature, at least mandates certain protections, such as appointed counsel, for the accused.
5. Expedited removal
The 1996 Illegal Immigration Reform and Immigration Responsibility Act (IIRAIRA) also provides the government with extraordinary new powers at U.S. ports of entry to deny admission and summarily remove any person who the INS inspector believes is presenting fraudulent documents, including a facially valid visa if there is some reason to believe that the visa was obtained through fraud or misrepresentation, or if the person is believed to be attempting to enter the U.S. for a purpose inconsistent with the terms of the visa.
The new expedited removal provisions have been scrutinized extensively because they run the danger of sweeping into their orbit legitimate asylum seekers who are most likely to be fleeing their persecutors without having first obtained proper travel documents. We must be careful not to create a process that a terrorist with adequate funding, education and documents can penetrate, but which turns away legitimate asylum seekers who have no documents and who are too scared or traumatized by abuse to adequately make their claim at the border.
However, the expedited removal powers contained in our immigration statutes give INS inspectors sweeping and unreviewable power to deny entry to suspected terrorists and return them on the next flight out. A person so excluded cannot obtain a visa to enter the U.S. for at least five years.
Clearly such powers must be used carefully and with adequate protections. The hapless visitor with entirely legitimate business purposes who is returned on the next plane to Singapore and denied a visa for the next five years has little recourse. There must be a means to challenge such mistakes, and to obtain a waiver of the five-year ban. In previous times, such a person could request a hearing before an immigration judge and present evidence to prove that their intent was legitimate. No more, under the terms of the 1996 laws.
However sweeping and subject to abuse, these powers do provide another existing means to deter terrorists. But, as outlined above, these powers to deny admission and summarily exclude are only as effective as the intelligence information provided to the INS inspector at the port of entry. What we do not want to see as a result is thousands of legitimate visitors and even refugees being summarily excluded, while international criminals and terrorists, who have the means to purchase or otherwise obtain valid documents, slip through undetected. That unfortunately may be the result of these expanded powers.
6. Reporting requirements:
The operation of current reporting requirements for foreign students and the arrival and departure of passengers both are areas needing significant improvements.
a. Student Reporting
More than 500,000 foreign students last year were enrolled in colleges and universities around the country. These students are a vital part of our higher education system. In California, the state with the greatest number of international students, just over 66,000 students from 1999-2000 brought $1.6 billion dollars into the state's economy. Foreign students have made enormous contributions in the advancement of technology and science, and graduates from American colleges and universities have gone on to lead nations and shape history.
We have long understood that the opportunity to study in this country comes with rules and responsibilities that affect both the students and the institutions. All foreign students must apply for a visa and must be able to prove that they are not inadmissible to the United States. Since at least 1985, colleges and universities approved to receive foreign students are required to gather and report information about foreign students to the Immigration and Naturalization Service.
This information includes the student's current address, date of commencement of studies, the student's written application for admission and other supporting documents the school uses to determine eligibility, the date and reason for termination of a student, and any academic disciplinary actions taken against the student due to any criminal convictions.
In the aftermath of the 1993 bombing of the World Trade Center, the INS created the Coordinated Interagency Partnership for Regulating International Students (CIPRIS) as a pilot program to provide for the electronic transfer of student information between institutions and the INS. In 1996, IIRAIRA mandated that INS fully implement the CIPRIS system by 2001. After 1996, the INS found that it could not address all the technical problems and asked Congress for an extension of 2001 deadline.
Although the program to provide for the electronic transfer of the information collected on foreign students has yet to be implemented, colleges and universities are still required to collect and report the data to INS, and an INS officer can request access to it at any time.
At intervals specified by the INS, but not more frequently than once a term or session, the Service's processing center is required to send each school a list of all foreign students who, according to Service records, are attending that school. A designated school official at the school must note on the list whether or not each student on the list is pursuing a full course of study and give the names and current addresses of all student visa holders not listed, attending the school and other information specified by the Service as necessary to identify the students and to determine their immigration status.
The designated school official must comply with the request, sign the list, state his or her title, and return the list to the Service's processing center within sixty days of the date of the request. Failure to follow any of the procedures and regulations will result in the withdrawal of the schools approval to receive non-immigrant students.
The INS is working with colleges and universities to develop this system electronically. The electronic system is only beginning to be implemented as an operational prototype with 21 educational institutions. The failure, if any, of the student tracking system is not the absence of laws, but the lack of resources. Congress needs to provide funding to get this system up and running and maintained in those schools authorized to enroll foreign students.
As the prototype is expanded, the INS needs to assess and report to Congress on the feasibility of this system, and whether it can improve the security of the U.S. relative to implementation costs, and do so in a way that does not intrude excessively on the privacy rights and civil liberties of students.
b. Verifying Departures
Requiring airlines and other passenger carriers to identify passengers' arrivals and departures has been a part of our laws for many years. Passenger carriers are required by law to deliver to the immigration officers at the port of arrival and departure a list or manifest of the persons on board such vessel or aircraft. According to the law, "such lists or manifests shall be prepared at such time, be in such form and shall contain such information as the Attorney General shall prescribe by regulation as being necessary for the identification of the persons transported and for the enforcement of the immigration laws."
This language grants broad power to the Attorney General to decide when and how an airline identifies its passengers. The problems we now have with identifying who is coming and going from our shores are technological, not legal. In 1997, the Office of the Inspector General found that the principal INS record-keeping system for tracking nonimmigrant overstays, the Nonimmigrant Information System (NIIS), does not produce reliable data.
Normally, passengers arriving in the United States fill out an I-94 form and present it to the INS inspector upon arrival. The inspector collects the arrival portion of the form and returns the departure portion to the passenger. The arrival portion is sent to an INS contractor, who inputs the data into NIIS. When the person leaves the United States, the airlines are supposed to collect the departure portion of the I-94 form and provide it to the INS for input into NIIS. The data is then matched by NIIS to identify nonimmigrant overstays.
The OIG report found that the NIIS data is incomplete and unreliable due to missing departure records and errors in records processing. NIIS does not contain departure records for a large number of aliens, most of whom the INS assumes have left the United States. The INS believes that many of these unrecorded departures result from airlines failing to collect departure forms, aliens departing through land borders, data entry errors, records being lost through electronic transmission or tape-loading problems, and the failure of the system to match arrival and departure records.
The question that Congress must ask, as it considers the possible expansion of procedures to verify departures, is what use can be made of the extraordinary amount of data that would be collected under such procedures. The U.S. admits over 30 million non-immigrant visitors per year. If data regarding departures shows that just five percent of these visitors fail to depart at the end of their authorized stay, that information still does not inherently make us safer as a nation, nor does it deter terrorism.
NEW DETERRENCE MEASURES
What do we need to further enhance our nation's security? Enhancing this country's intelligence capacity is key. Any changes that we make to our immigration policy will work to the degree that they interface with, and take advantage of, enhanced intelligence information. Any such reforms must meet our due process and civil liberties concerns and standards.
There is much Congress and the Administration can do. Needed reforms include 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, mandated in-flight transmittal of passenger lists, the creation of a North American Perimeter Safety Zone, and a workable entry-exit control system. These measures will help us to increase the layers of protection that stand between us and any potential adversaries from abroad.
We need to remember that our best protection derives from keeping targeted people from entering the U.S. Such measures are more effective and easier to implement than measures that focus on persons after they enter the United States. In all cases, we need to make sure that we keep out people who want to do us harm, not those seeking to come to our country for the reasons that people have always come here, including reuniting with their families, working or escaping persecution. The following new measures to increase security and deterrence should be carefully considered:
1. Increased funding for DOS and INS
It is important to increase funding and data access for the Department of State (DOS) and the Immigration and Naturalization Service (INS). At present, both agencies' computer systems are technologically obsolete, with different offices often unable to share information with the other, and some offices, especially those overseas, not even having computer capacity. In order to effectively fight terrorism by enhancing our intelligence capabilities and improving our border security, both the DOS and the INS need increased funding to upgrade their technological infrastructures. Such funding needs to come from direct federal appropriations. INS and DOS increased technological capacities cannot be supported through user fees. This enhanced capacity to meet our security needs is a national function best supported through the federal government.
2. The Use of New Technologies
Given the complexities of gathering, sharing and making 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. Traditionally, fingerprinting has served this function. However, any standard based on fingerprinting has significant limitations that new technologies can overcome. Lookout systems and other data networks can be further improved by the use of new technologies that can match a unique identifying characteristic of an individual with a name. One of these new, unintrusive technologies is a face recognition system that uses cameras to scan a person's face and compare the picture with a database containing the photos of persons about whom the authorities are interested. The database for this technology would contain only the images of persons the authorities are looking for and is relatively inexpensive.
The federal government needs to fund the development and use of these new technologies and make sure the various federal agencies coordinate compatible efforts in this area.
3. Access to Lookout Lists
U.S. federal agencies, as well as international law enforcement officials, need direct access to the various lookout lists maintained by different agencies. These lookout lists include the names of people who should not be admitted to the U.S. or 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, for example, DOS and INS. would be able to directly access the FBI and other agencies' databases to review information that would help them determine whether someone should be allowed to enter the U.S. or be granted a positive response to an application or petition. Such direct access 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. These lists need to be integrated and accessible, with the information updated in a timely manner.
We also must include safeguards against potential abuse of this data that would limit the re-dissemination of such information, ensure the security and confidentiality of such information, protect privacy rights of individuals who are subject to such information, and establish procedures that determine who stays on and is removed from these lists. Such 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. We must make every effort to ensure the accuracy of the names on the list so that the wrong individual is not targeted.
4. Consulate Reforms
Our intelligence gathering can be further improved by changing some of the operations of our consulates. As noted above, consulate staff cannot do their job if they have neither the necessary intelligence information nor the technological capacity to access, upload, and download this intelligence information in a timely manner. In addition, we need to upgrade the status of the consulate officer who interviews an applicant to assess whether the applicant is allowed to enter the U.S. Currently, this function tends to be performed by more junior personnel with less experience. In the future, each post should be required to have a core of civil service specialists who would remain at certain posts or be rotated between posts to increase the level of experience of the person who is making the important decision about who is given a visa to come to the U.S.
Furthermore, this decision needs to be reviewable. In these times of heightened scrutiny such review is vital to ensure the integrity of the system. We should welcome such a review as part of the checks and balances that are central to our democracy and vital to our system of protections. We recommend providing any applicant for entry or a visa, in writing, the reason for the denial of entry and an avenue for review of any denial based on this information. In those cases where the adverse decision is affirmed, the applicant should be provided with a means of appeal to the U.S. District Court in the District of Columbia
U.S. pre-inspection programs are in effect in only 5 countries in the world-Canada, Ireland, Bermuda, the Bahamas, and Aruba. In these locations, passengers are in effect "pre-inspected" for admission to the U.S. before ever boarding a plane--passports are checked and names are run against the lookout list. This pre-inspection process allows more time for inspection and increases the likelihood of a more thorough check.
This procedure would move our system from one that focuses on a person's point of entry into the U.S. to one that focuses on their point of origin. The INS and DOS together would need to recommend where such pre-inspections should take place, as it would be impossible to undertake this procedure at every airport in the world. It also would be important to deal with host countries about any sovereignty issues that might arise when someone is to be arrested, with U.S. officials working cooperatively with authorities at the pre-clearance 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 as seriously as does the U.S.
Congress needs to carefully examine and weigh the costs of such a pre-inspection program. As with other programs to increase security and deterrence, the federal government will need to find ways to fund such initiatives. The cost of setting up and maintaining an overseas INS inspections staff is not an insignificant one.
Furthermore, any pre-inspections system must provide for mechanisms, including specially trained personnel, to assure that legitimate asylum seekers are afforded a meaningful opportunity to seek protection. The balancing of increased security needs and strengthened deterrence measures against terrorists with the obligation under U.S. and international law to protect those fleeing persecution must be maintained in a way that does not exclude asylum seekers from protection. Stringent pre-inspection at foreign airports much be accompanied by expanded asylum determination or "credible fear" screening, so that asylum seekers can continue to the U.S. to pursue their compelling and legitimate claims.
6. In-Flight Transmittal of Passenger Lists
Mandating at the time of take off that all airlines transmit passengers' names to the destination airport to be checked against the look out list is another 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 from entering or apprehending those who should not be permitted to enter the U.S. Currently, about 75% of airlines transmit these lists.
The effectiveness of such a system also depends on the INS having adequate technology and personnel on the receiving end to make swift and efficient use of the incoming information.
If pre-inspection is 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. Again, however, as Congress considers measures to strengthen and mandate such data collection and transmission, it must include explicit safeguards to assure meaningful access to asylum protection for those who truly need and deserve it.
7. North American Perimeter Safety Zone
To further enhance our intelligence, the U.S. needs to employ multilateral strategies with Canada and Mexico to enhance the security of all three countries to create a North American perimeter.
Such a North American perimeter will bolster security through law enforcement coordination, intelligence sharing, and better joint use of enforcement resources. Such coordination and cooperation 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.
Beyond our immediate neighbors, the U.S. needs to more closely cooperate with our European allies in particular and share information that each of our intelligence services have collected. Consistent with the need to protect the privacy of innocent persons, we should have access to their version of the lookout lists, and reciprocate by sharing our information.
Any cooperation among governments in the region 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. Access to asylum procedures in Central American countries is even less assured.
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. However, none should be required to lower their protections for refugees to the "lowest common denominator."
As North American security cooperation also addresses the issues of smuggling and trafficking, the European experience is particularly relevant regarding protection for asylum seekers. 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 includes incorporating the right to seek asylum and the responsibility of non-refoulment 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, improving reception conditions, and increasing family reunification.
Our government, while working with Canada, Mexico, and other partners in the region to eradicate terrorism, should also ensure that meeting the protection needs of asylum seekers is included as part of any plan.
8. Entry-Exit Controls
Congress 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 our security risks apply to both our borders.
To that end, it would be helpful to enhance our data gathering at airports by mandating an entry/exit system that would collect and correlate data about arrivals and departures. Certain airlines currently collect such information on a voluntary basis. This important security function should be government-mandated and funded. The data collected will only be useful if correlated with better intelligence data.
An entry-exit system has been discussed for land border points of entry into the U.S. Such a system would be difficult to implement, would be exceedingly disruptive to commerce, and most importantly, would contribute little to the security of the U.S. A June 1998 report from the Senate Judiciary Committee, then chaired by Senator Orin 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 of 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.
Importantly, the report also notes that it is highly questionable if implementing Section 110 would ultimately provide any assistance in prosecuting individual visa overstayers, and has 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. We must not fool ourselves into believing that implementing an entry-exit control system at land borders will increase our security: It is a false solution that will hurt our commerce and trade and not contribute to our safety.
Again, as in most forms of data collection and record keeping, the usefulness of the data is very dependent on the quality of the intelligence information with which it is correlated. Did the vast majority of these people who failed to depart on time do so for innocent reasons? Did they stay an extra week at Disney World? Did they delay departure to attend a friend's wedding, or because Grandma could not fly on account of an ear infection? Did they eventually depart, one week or two weeks or even a month late? Or are they the tiny, even miniscule minority who intend to stay to commit some heinous act of terrorism in the United States?
How do we make sense of this data that we can and will collect? Who looks at it? Who runs the cross checks, against what data bases? What do we know about someone, or what can we learn from our overseas intelligence sources that was not available when the visa was issued that will tell us whether the person is someone we should seek out and investigate? How do we find the person anyway, even if we have verified that he has not departed the United States in a timely fashion? All of these complexities must be carefully considered before Congress rushes to implement additional reporting and departure information collection or a new exit/entry control system.
AFFIRMATION OF THIS NATION'S DIVERSITY
In the current environment, it is especially important to reaffirm that this nation's strength and future reside in our unity as a nation, the diversity from which we draw our strength, and the democratic principles on which our country is based. President Bush, the Congress, and individual members of Congress, and many members of the general public all have condemned the violence directed against Arab-Americans, Muslim-Americans, and Asian-American communities by misguided people who wrongly blame these communities for the terrorists' heinous acts. We must continue to support diversity and condemn violence and hate crimes.
In conclusion, let us remember that U.S. immigration policy is based on a number of values that relate to the core social and economic principles on which our nation was founded. These values are complementary and interweave to create the rich fabric that is beneficial to all Americans. Among the most important values are:
· The unification of American families;
· Employment related immigration to keep America strong in a global economy;
· Asylum protection for refugees fleeing persecution;
· Naturalization based on allegiance to the principles contained in our Constitution and laws;
· Immigration policy that is implemented through a well-regulated system based on law, with fair, uniform, and predictable requirements.
As the current situation calls out for change in the direction of more effective means of deterring terrorism, we must not lose sight of these fundamental values of this nation of immigrants. As we seek to create new means to isolate terrorists, we must take care not to isolate America in the process.
Mr. Chairman, thank you very much for this opportunity to share my thoughts and perspectives with the committee. I and other members of AILA remain available to discuss these matters with you at any future time. We look forward to working closely with you on legislative efforts to enact these policy proposals.
Cite as AILA Doc. No. 01101801.