(part two)
DHS’s inability to verify that the fingerprints on Border Crossing Cards match those of the holder prior to admission, mentioned above in the section on document fraud, also presents a major weakness in admission and removal procedures. Without the equipment to compare the fingerprints on the cards with the aliens’ fingerprints, authorities cannot verify that the cards are being used by the person to whom they were issued, creating an opportunity for fraudulent entry. In fact, there is anecdotal evidence that the cards are being used by smugglers to get their clients into the United States. Once the clients gain entry into the United States, the smugglers then collect the cards and return to Mexico, where they either give them back to their legitimate owners or use them again for another group of illegal aliens. Besides greatly facilitating illegal immigration, there is every reason to believe that if other means of entering the country become more difficult, the cards could be utilized by groups like al Qaeda, particularly since we already have evidence that Middle Easterners are entering the United States through Mexico. (In October 2001, for example, an Iraqi-born smuggler named George Tajirian pled guilty to forging an alliance with a corrupt Mexican immigration officer, Angel Paramo, to smuggle over 1,000 illegal aliens from the Middle East into the United States across the southern border). Given that illegal entries of this kind do not create an administrative record of arrival, getting into the country in this way may become a particularly attractive option for
terrorists in the future.
The Successes
Of the 22 reforms in the visa tracking law that were to have been implemented by November 2003, nine were implemented on time and four others were implemented after the deadlines had passed. Again, we divide the most significant of these actions into three main categories: document fraud; information sharing; and admission/removal.
Document Fraud. Upon enactment of the visa tracking law, data on lost and stolen passports were required to be entered into the data system used to determine the admissibility or deportability of aliens. The purpose of this provision is to prevent aliens from using lost or stolen passports to gain entry into the United States fraudulently. While the administration did not begin tracking this data immediately upon enactment, the State Department (State) now has a system to automatically upload the numbers of lost and stolen passports into the Treasury Enforcement Communications System (TECS), which is used by immigration inspectors to determine the admissibility of aliens at U.S. ports of entry.
The administration also has complied with the provisions of the visa tracking law relating to a biometric technology standard. The Attorney General and State met the October 2002 deadline for the submission of a progress report to Congress on the establishment of a technology standard to verify the identity of non-citizens seeking entry. The Attorney General, State, and the National Institute of Standards and Technology (NIST) submitted by the November 2002 deadline a report on actions and resources necessary to create biometric machine-readable travel documents for non-citizens. The final report was not submitted by the deadline, however, because of delays at the Office of Management and Budget. The Attorney General and State also met the January 2003 deadline for certifying the biometric technology standard for verifying the identity of non-citizens seeking entry. These agencies recommended and certified fingerprints as the standard biometric identifier because fingerprint verification has a higher accuracy rate than facial recognition technology and because testing of iris recognition technology is incomplete. From a purely practical standpoint, the use of fingerprints to verify the identity of aliens makes the most sense in any case, since law enforcement agencies have been using fingerprints for years and the technology is widespread.
Information Sharing. While progress on the development of Chimera has stalled, the Administration has made some significant strides in improving information sharing among federal agencies. The visa tracking law required President Bush to report to Congress by September 2002 on the informational needs of DHS and State. The deadline was missed, but the President’s report was submitted in March 2003.3 In addition, an interim data-sharing system has been implemented to facilitate the exchange of information among federal immigration, law enforcement, and intelligence agencies regarding non-citizens until the Chimera system is developed. The interim system is not nearly as comprehensive as Chimera is supposed to be, but it does facilitate information flows between agencies. This information flow is critical to ensure that consular officers issuing visas and immigration inspectors determining admissibility have access to all available data regarding an alien’s criminal record and potential terrorist ties.
Other administration successes in the area of information sharing include: the timely submission to State by the Attorney General of a list of all U.S. educational institutions authorized to receive F or M nonimmigrant student visa holders; and the implementation of a system to ensure that no student visas (F, J, or M visas) are issued unless State has received electronic evidence from an approved U.S. institution of the alien’s acceptance and a consular officer has reviewed the alien’s visa record.
Admission/Removal. The certification of fingerprints as the biometric technology standard to verify identity deserves to be noted as a success in the admission/removal area, as well as the document fraud area listed above. It is an important accomplishment because the only way to truly identify an individual and reduce the use of fraudulent documents, aliases, and stolen identities is through a personal biometric identifier that is unique to every individual. By requiring the certification of a standard identifier that all law enforcement agencies will use, the visa tracking law makes it much less likely that a known or suspected terrorist, a criminal alien, or any alien who has been apprehended for illegal entry or other immigration violations will be able to use counterfeit or stolen documents to gain admission to the United States.
The implementation by the January 30, 2003, deadline of the Student and Exchange Visitor Information System (SEVIS) also is a noteworthy accomplishment of the Administration. Under SEVIS, approved U.S. educational institutions transmit electronically to State documentation of acceptance by the institution of a foreign student. State then reviews the student’s visa application and, if appropriate, issues an F, J, or M visa, depending on the type of program the student seeks to attend, and notifies DHS that the visa has been issued. Once the foreign student is admitted to the United States by an immigration inspector, DHS notifies the educational institution that the student is in the country. If the student fails to enroll or to commence classes, the educational institution is required to notify DHS.
The abuse of student visas by aliens seeking to remain permanently in the United States is nothing new. The General Accounting Office has been warning Congress about violations of student visas since at least 1975.4 Congress failed to act, however, until after the 1993 World Trade Center bombing, when it was discovered that Eyad Ismoil, the driver of the van filled with explosives, had entered the United States on a student visa, dropped out of school after three semesters, and remained here illegally to plot the attack. Spurred by this finding, Congress included in the 1996 IIRIRA a provision requiring the Attorney General, State, and the Department of Education to collect and maintain electronically-stored information on aliens granted F, J, and M student visas to determine whether they were complying with the terms of their visas. The program that resulted from that provision, the Coordinated Interagency Partnership Regulating International Students (CIPRIS), had not yet been fully implemented by September 2001.
When it was discovered that two of the September 11th hijackers, Mohammed Atta and Marwan al Shehhi, had fraudulently applied to change their status from tourists to students in order to extend their stay in the United States, Congress recognized the need include in the visa tracking law provisions to force full implementation of the student tracking system and to require additional data collection and notification requirements. As a result, CIPRIS evolved into the more detailed and expansive SEVIS.
Upcoming Deadlines
The implementation deadlines for the various reforms included in the visa tracking law range from May 14, 2002, (the date of enactment) to September 30, 2006. The most important of the upcoming deadlines is October 26, 2004. By that date, the law requires:
1) that all travel and entry documents issued by the United States to non-citizens include biometric identifiers and are machine readable;
2) that machines that can read both the standard and the biometric data on these cards are installed at all U.S. ports of entry; and
3) that, in order to participate in the visa waiver program, countries must issue their nationals machine-readable passports that include fingerprints.
Also upcoming are the implementation deadlines for the entry-exit system. The 1996 IIRIRA, not the visa tracking law, requires the creation of an automated system to track the entry and departure of all non-immigrant visitors to the United States, and the Immigration and Naturalization Service Data Management Improvement Act of 2000 establishes staggered deadlines for implementation of the entry-exit system. This latter law requires an automated system for matching entry and exit records of non-immigrants to be in place at all airports and seaports by December 31, 2003, at the 50 land ports with the highest volume of traffic by December 31, 2004, and at all other ports of entry by December 31, 2005. While the visa tracking law does not directly address these deadlines, it does affect the creation of the entry-exit system, thus making the deadlines noteworthy. The visa tracking law requires:
1) that the automated system utilize the certified biometric technology standard (i.e., fingerprints);
2) that the underlying database contains the arrival and departure data from machine-readable visas, passports, and other travel and entry documents; and
3) that all security databases relevant to determinations of admissibility be made interoperable.
The National Security Entry-Exit Registration System (NSEERS) represented the first step toward the creation of an entry-exit system. NSEERS required all males aged 16 or older from any of 25 countries designated as sponsors of terrorism or of "special interest" to be photographed and fingerprinted upon application for admission as non-immigrants at U.S. ports of entry. Foreign students seeking admission at a port of entry also were photographed and fingerprinted under NSEERS, regardless of their nationality. Furthermore, NSEERS required males aged 16 or older from these same countries who already were in the United States on non-immigrant visas to register in person at an INS office. Finally, NSEERS required all of these same non-immigrants to complete a departure check when they leave the United States, so that there is a record of their departure. Of the 83,000 non-immigrants already living in the United States who were required to register, some 14,000 appeared to be in violation of U.S. immigration laws, another 143 were arrested on criminal charges, and 11 were found to have terrorist connections. However, DHS announced on December 1, 2003 that it was suspending the requirement that non-immigrant males from the 25 countries periodically re-register during their stay in the United States.
The United States Visitor and Immigrant Status Indicator Technology (US VISIT) program is the second step toward a comprehensive, automated entry-exit system. Under the US VISIT system, all non-immigrant visa holders will be photographed and fingerprinted at a U.S. port of entry, regardless of their nationality. They also will be required to "check out" prior to leaving the country by scanning their visa or passport and placing their fingers on a fingerprint reader. DHS expects to have the entry portion of US VISIT implemented at airports and seaports by January 5, 2004, five days after the deadline set by Congress. It expects to phase in the exit portion of the system at airports and seaports over the next year. At this time, DHS does not have a clear plan for implementing US VISIT at land ports, so it appears doubtful that it will meet the December 2004 deadline.
For a list of all the deadlines in the visa tracking law, see
www.NumbersUSA.com/hottopic/deadlines.htm. For a comprehensive discussion of the provisions in the law, including pending deadlines, see www.cis.org/articles/2002/back502.html.
Conclusion
The Enhanced Border Security and Visa Entry Reform Act of 2002, if fully implemented, will significantly improve the security of our visa process through: 1) the use of biometric identifiers for all non-citizens; 2) access by DHS, State, the FBI, and the CIA to an integrated data system containing all available information on aliens that is relevant to determining admissibility; and 3) the matching of entry and departure information for all non-immigrants in a comprehensive entry-exit system.
These measures will not only reduce our vulnerability to terrorist attacks, but they also will deter illegal immigration by making it more difficult for aliens to overstay non-immigrant visas or to use stolen or counterfeited documents to obtain immigration benefits. Full implementation of the visa tracking law also will send a clear message that the United States intends to begin enforcing its immigration laws and closing the loopholes that have allowed terrorists, criminals, and illegal aliens to enter at will and remain as long as they choose. It is important to remember that, as long as any alien who is seeking a job or better opportunities is able to come to the United States illegally or remain here illegally after his visa expires, so too can any terrorist.
The Bush Administration has taken significant strides toward securing our homeland by implementing some of the provisions of the visa tracking law, and it deserves credit for those accomplishments. The fact that the Administration has failed to meet more than half of the deadlines that have passed so far, however, indicates a disturbing lack of commitment on the part of the Administration to secure our homeland from those who wish us harm and to uphold its Constitutional duty to ensure that the laws of the United States are faithfully executed.
Congress, having enacted the Enhanced Border Security and Visa Entry Reform Act, has a continuing duty to oversee its execution by the Administration. Rigorous congressional oversight serves a dual purpose: 1) to send the Administration — and the public — the message that Congress recognizes the importance of strict enforcement of U.S. immigration laws; and 2) to hold the Administration accountable for meeting the deadlines set out in the law and for implementing the law in the way Congress intended.
The security of the nation requires a commitment by both the White House and the Congress. The visa tracking law, insofar as it has been implemented, represents a positive step forward, but there is much left to do and the cost of failure could be extraordinarily high.
Endnotes
1 A detailed analysis of the Act is available in a previous Center for Immigration Studies Backgrounder entitled "The Enhanced Border Security and Visa Entry Reform Act of 2002: A Summary of H.R. 3525" and is available online at www.cis.org/articles/2002/back502.html
2 The entire CIS paper, The Open Door: How Militant Islamic Terrorists Entered and Remained in the United States, 1993-2001, is available online at
www.cis.org/articles/2002/terrorpr.html
3 A summary of the report, along with the President’s cover letter, may be found online at usinfo.state.gov
4 GGD-75-9, Better Controls Needed to Prevent Foreign Students from Violating the Conditions of Their Entry and Stay While In the United States. February 4, 1975.
161.203.16.4
This is a joint publication with NumbersUSA Education and Research Foundation. Rosemary Jenks, J.D., is Director of Government Relations at NumbersUSA.com. Steven A. Camarota, Ph.D., is Director of Research at the Center for Immigration Studies.
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