Falling Behind on Security (Part one)
Implementation of the Enhanced Border Security and
Visa Entry Reform Act of 2002
December 2003
By Rosemary Jenks and Steven A. Camarota
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After the terrorist attacks of September 11, 2001, exposed numerous weaknesses in the nation’s immigration system, Congress overwhelmingly passed the Enhanced Border Security and Visa Entry Reform Act of 2002, which the president signed in May 2002.1 The visa tracking law, as it is often called, and the USA Patriot Act, were the two primary legislative responses to the attacks. While the USA Patriot Act has been the subject of intense debate, implementation of the visa tracking law has received relatively little attention. This Backgrounder is the first report to systematically examine the implementation of the law so far, and specifically the Bush Administration’s compliance with the deadlines it laid out. We find that, although a number of important reforms were implemented by the mandated deadlines, many others were implemented well after their deadlines passed, and still others have not been implemented at all.
Among the findings:
• Of the 22 mandated deadlines that already have passed, more than half (13) were missed.
• Of those 13 deadlines that were missed, four of the required reforms eventually were implemented, while nine others still have not been implemented as of this writing.
• One of the most important missed deadlines is the Administration’s failure to report any progress on the development of an integrated biometric-based database, dubbed Chimera, that would give the State Department and the Department of Homeland Security real-time access to law enforcement, immigration, and intelligence information on every alien who seeks admission to the United States. The Administration has failed even to establish the required nine-member commission to oversee the development of Chimera, thus indefinitely stalling any progress on the system.
• The government still is not checking the names of all aliens from "visa waiver" countries against terrorist watch lists at ports of entry, though it was required to do so immediately upon enactment of the visa tracking law. Checking these names is critically important because visa waiver aliens (arrivals from one of 27 countries whose nationals do not require visas to come to the United States as tourists or short-term business visitors) are not vetted by an American consulate overseas prior to their arrival at a U.S. port of entry.
• Machines that can read and compare biometric information on Border Crossing Cards have yet to be installed at most ports of entry along the U.S.-Mexico border, greatly facilitating fraudulent use of the cards.
• Despite significant failures, however, several provisions of the visa tracking law have been successfully implemented, including:
— Creation of an interim data-sharing system that permits relevant government agencies to access data on aliens;
— Development of a biometric technology standard to verify the identity of non-citizens;
— Establishment of terrorist lookout committees in U.S. missions abroad;
— Advance electronic submission of passenger manifests by all commercial airlines and vessels;
— Implementation of the foreign student tracking system (SEVIS);
— Submission to Congress of an annual report on alien absconders who fail to show up for removal following a final order of deportation.
If fully implemented, the visa tracking law could significantly enhance national security by reducing the chances that terrorists would again be able to exploit weaknesses in the nation’s immigration system. Implementation also could help in reducing illegal immigration by making it more difficult for an alien to overstay a temporary visa. However, as we approach the second anniversary of the law’s enactment, the Bush Administration is falling behind and has not carried out several of the legislation’s key provisions. As a result, many of the loopholes that were exploited by the 9/11 terrorists are still open, leaving us vulnerable to future attacks.
Problems Prior to 9/11
In a detailed report published in May 2002, the Center for Immigration Studies documented the various ways al Qaeda terrorists, including the September 11th hijackers, have exploited the nation’s lax immigration system over the past 10 years.2 One of the most important findings of that report was that violations of immigration laws were very common among terrorists. Of the 48 terrorists studied, at least 21 had violated U.S. immigration laws prior to taking part in terrorism, including several of the September 11th terrorists. While others may not technically have violated the law, many gained entry into the country — or continued to operate in the United States — because of the lax way our immigration system is administered. Because violations of immigration laws are so common among terrorists, strict enforcement of immigration law should be considered a key component of our efforts to prevent future terrorist attacks.
Some of the major weaknesses in the nation’s immigration system that have facilitated terrorism in the past include:
• a failure to properly vet visa applicants overseas;
• a lack of information with which to thoroughly screen aliens at ports of entry;
• the absence of a system to track aliens and determine whether visa requirements, including time limits on permission to remain in the United States, are complied with once the alien is in the United States;
• the failure to remove those who do not honor the terms of their visas;
• an inability to determine the true identity of aliens;
• and a lack of information sharing between federal, state, and local agencies.
The visa tracking law was designed to address many of these problems. Equally important, it was designed to send a clear signal that the United States intends to regain control over its borders and to reassert the rule of law in our immigration system.
While the visa tracking law did not address all aspects of our immigration problem — e.g., inadequate resources for border and interior enforcement and inadequate staffing levels at American consulates abroad — the law still represents a critical first step in reducing our vulnerability to future terrorist attacks. Thus, it is necessary to determine the extent to which the Administration successfully has carried out the various requirements in the legislation.
Reading the Chart
The accompanying chart (below) lists (in chronological order of the deadline dates) the 22 reforms required by the Enhanced Border Security and Visa Entry Reform Act to have been implemented by November 2003. The first column describes the action required by the law and lists its mandated implementation deadline. The second column states whether the deadline was met. The third column notes whether the action has been implemented at all yet, i.e. either on time or late. The "Comments" column includes a brief description of each action’s importance and the section of the visa tracking law where the requirement for action can be found. By glancing through the chart the reader can gain a clear sense of the Bush Administration’s progress in meeting the deadlines set by Congress. We summarize below some of the major findings in the chart.
The Failures
Of the 22 deadlines mandated by the visa tracking law, nine of the required reforms have not been implemented at all and four were implemented after the deadlines passed. Given the importance of immigration policy to homeland security, it is disconcerting to see that the Administration has fallen so far behind in implementing these reforms. The most significant of the non-implemented provisions can be divided into three broad areas: document fraud; information sharing; and admission/removal.
Document Fraud. The visa tracking law required that employment authorization documents for refugees and asylees include a photograph and fingerprints by November 2002. This requirement has not yet been met.
Employment authorization documents, which give the holder the legal right to work in the United States, are some of the most sought-after immigration documents. Absent biometric identifiers, employment authorization documents may be easily swapped, sold, or counterfeited. While refugees and asylees do not represent a huge number of people relative to other visa categories, the smaller size of the program should have made it relatively easy to incorporate a photograph and fingerprints on these employment authorization documents. Moreover, the more secure documents could serve as the prototype for work authorization documents for all non-immigrants (aliens granted permission to enter the United States for a particular purpose and limited duration, such as students and guest workers) and for the hundreds of thousands of aliens granted Temporary Protected Status in the United States. The fact that this requirement has not been met is a troubling sign because it suggests that the Administration does not fully appreciate the demand for work authorization documents or the ease with which they are fraudulently used.
The visa tracking law also required the Department of Homeland Security (DHS) to have the ability by September 30, 2002, to verify that the fingerprints on Border Crossing Cards match those of the holder prior to their entry into the United States. Border Crossing Cards permit Mexican nationals to enter the United States for periods of up to 72 hours without having to apply for a visa each time they seek entry. These cards are in high demand among Mexicans who live in border areas or whose business involves routine cross-border activities. The administration has expended significant resources to create and issue secure, machine-readable, biometric Border Crossing Cards to deter fraudulent use and counterfeiting. While DHS has purchased several machines capable of reading standard identification cards, the majority of them are not able to read and compare the digitized fingerprints on the Border Crossing Cards. Without this capability, DHS has no way to ensure that the presenter of the card is the same person to whom it was issued.
Information Sharing. One of the most important reforms required by the visa tracking law is the creation of an integrated data system called Chimera. The Chimera system is supposed to contain biometric identifiers (a photograph and fingerprints), immigration and law enforcement records, and intelligence information on every visa applicant. Chimera is to be used to determine the admissibility and deportability of aliens, since it will include any available evidence of prior immigration violations, criminal records, or terrorist connections.
Prior to September 11, 2001, the Immigration and Naturalization Service (INS) had several separate data systems that were incompatible with one another and with other federal law enforcement agencies, including the Federal Bureau of Investigation (FBI). For example, the INS had separate databases for criminal/illegal aliens, for naturalization applicants, for non-immigrant, and for lawful permanent residents. While there was some data sharing among these systems, there were critical gaps. The data system for criminal/illegal aliens, called IDENT, was the only system that stored an electronic fingerprint and photo, but it was not compatible with the FBI’s criminal database, NCIC. The database for naturalization applicants was incompatible with IDENT, as well, so there were instances of aliens who were in deportation proceedings in one INS District being naturalized by another INS District. The purpose of Chimera is to combine all available data on aliens in one database to which all immigration, law enforcement, and intelligence officers have access. This will allow, for example, a CIA agent who receives intelligence about a suspected terrorist to make that intelligence available to immigration inspectors who can then prevent the alien from gaining admission into the United States.
The lack of communication between federal agencies clearly played a role in facilitating terrorism in the past. Khalid al Midhar, who may have been the pilot on American Airlines flight 77 on September 11th, was identified by the CIA as a terrorist in January 2001. He was permitted to enter the United States in August 2001, however, because the CIA never put his name on the watch lists that should have led an immigration inspector to deny him entry. Chimera would ensure that immigration inspectors have access to CIA intelligence. It also would contain fingerprints of all visa applicants, so a suspected terrorist would have a much more difficult time using a stolen or fraudulent identity to gain admission.
This automated, integrated identification and tracking system for all visa applicants does not guarantee safety from terrorism, but it gives immigration and other law enforcement personnel an essential tool to prevent terrorists from being given legal permission to enter the United States in the first place or to remain in the country if they violate the terms of their visas.
The Administration’s failure to report any progress in creating Chimera and its failure to appoint the nine-member commission required by the visa tracking law to oversee the development of Chimera are perhaps the most significant missed deadlines. Without the Chimera system, there is no permanent, integrated data-sharing system that will allow all law enforcement and intelligence agencies to communicate in real time and to access all available data on non-citizens, including biometric identifiers.
Another area related to information sharing that has not been implemented concerns the failure to report to Congress on the feasibility of establishing a North American National Security Perimeter. The State Department and the Department of Homeland Security have also not reported to Congress on the possibilities for encouraging Canada, Mexico, and visa waiver countries to develop data systems compatible with Chimera.
Admission/Removal. Upon enactment of the visa tracking law, immigration inspectors are required to check every arriving "visa waiver" alien against all relevant terrorist lookout databases before granting the alien admission to the United States. The visa waiver program allows tourists and business travelers from 27 industrial democracies, such those in Western Europe and East Asia, to enter the United States for up to six months without first getting a visa from an American consulate overseas, as is required for almost all other foreign visitors. This means that visa waiver nationals can enter the country without ever having been vetted by an American consulate. It is therefore critically important that, at the very least, their names be checked against the list of known terrorists and criminals at the U.S. port of entry. The fact that this goal still has not been achieved represents a huge weakness in homeland security.
While some may think it unlikely that an al Qaeda terrorist would be a citizen of a visa waiver country, in fact two al Qaeda terrorists born in Western Europe, Zacarias Moussaoui and Richard Reid, already have used the visa waiver program to gain admission to the United States. Moussaoui, suspected of being the 20th September 11th hijacker, was born in France and Reid, the so-called "shoe bomber," was born in Great Britain. Moreover, the attacks of September 11th were planned largely in Western Europe. Foreign terrorists already have demonstrated a sophisticated understanding of U.S. immigration law and a willingness to exploit weaknesses in it. The failure to check every visa waiver alien at U.S. ports of entry is an opening terrorists likely will exploit again if it is not closed.
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