Copland and Brenner

Table of Contents

1. DHS Expands Border Patrol Agent Removal Authority
2. US-VISIT Expands
3. TSA’s “Secure Flight;” Biometrics Protect Liberty: Moves Toward Interior Immigration Enforcement?

1. DHS Expands Border Patrol Agent Removal Authority

   In a new regulation that is literally far-reaching, the Department of Homeland Security ("DHS") has significantly expanded the authority of Border Patrol agents concerning certain illegal aliens who are apprehended inside the U.S.A. up to 100 miles from the Canadian and Mexican borders. The rule authorizing this increased power was published in the Federal Register on August 11, and was effective immediately.

   Statutory authority for the new rule arose under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"). One of the provisions, which became Section 235(b)(1)(A)(i) of the Immigration and Nationality Act ("INA"), states that an immigration officer "shall" order the removal without any hearing or review of an alien who is either "arriving in the United States" or "is described in clause (iii)" and is deemed inadmissible under section 212(a)(6)(C) [fraud or willful misrepresentation] or (7) [lacking proper entry and travel documentation] of the INA. An alien described in Section 235(b)(1)(A)(iii)(II) is one "who has not been admitted or paroled into the United States, and who has not affirmatively shown, to the satisfaction of an immigration officer, that the alien has been physically present in the United States continuously for the 2-year period immediately prior to the determination of inadmissibility ." (emphasis added) Section 235(b)(1)(A)(iii)(I)provides that the Attorney General (now the Secretary of Homeland Security) may apply the expedited removal provision "to any or all aliens described in subclause (II)." (emphasis added)

   Under the new rule, Border Patrol agents, part of the DHS Bureau of Customs and Border Protection, "may place in expedited removal proceedings any or all members of the following class of aliens":
   - Aliens who are inadmissible for fraud or willful misrepresentation because they lack proper entry and travel documentation,
   - who are physically present in the U.S.A. without having been admitted or paroled following inspection by an immigration officer at a designated port-of-entry,
   - who are encountered by an immigration officer within 100 air miles of any U.S. international land border, and
   - who have not established to the satisfaction of an immigration officer that they have been physically present in the U.S. continuously for the 14-day period immediately prior to the date of encounter .

   Aliens subject to the new rule bear "the affirmative burden to show to the satisfaction of an immigration officer that the alien has been present in the U.S. continuously for the relevant 14-day period." In addition, since aliens who have not been admitted are deemed to be applicants for admission to the U.S.A., they must also be prepared to establish that they are not inadmissible .

   Exempted from the expedited removal process are:

   - aliens who assert an intention to apply for asylum or a fear of persecution or torture. Such aliens are to be "interviewed by an asylum officer who will determine whether the alien has a credible fear….If that standard is met, the alien will be referred to an immigration judge for a removal proceeding." The INA states that "credible fear of persecution means that there is a significant possibility…that the alien could establish eligibility for asylum"
   - aliens who are natives or citizens "of a country in the Western Hemisphere with whose government the United States does not have full diplomatic relations" (also known as Cubans), and who arrive by aircraft at a port of entry
   - most Mexican and Canadian nationals, unless they have a history of criminal or immigration violations
   Based upon the supplementary information to the rule, "nearly 1 million aliens [ ] are apprehended each year in close proximity to the borders after illegal entry. It is not logistically possible for DHS to initiate formal removal proceedings against all such aliens." Third-country nationals (i.e., aliens who are neither Canadian nor Mexican) have typically been released in the U.S.A. with a notice to appear for removal hearings, but "subsequently fail to appear for their removal proceedings, and then disappear in the U.S." Since "DHS has a pressing need to improve the security and safety of the nation’s land borders, [ ] expanding expedited removal between ports of entry will provide DHS officers with a valuable tool to meet that objective."

   The supplementary information to the new rule states that it "will be given effect only with respect to apprehensions made within the CBP Border Patrol sectors of (Laredo, McAllen, Del Rio, Marfa, El Paso, Tucson, Yuma, El Centro, San Diego, Blain, Spokane, Havre, Grand Forks, Detroit, Buffalo, Swanton, and Houlton)." For those removed by means of the expedited process, reentry to the U.S.A. is prohibited for a period of five years. This "will deter unlawful entry, and make it possible to pursue future criminal prosecution against those aliens who continue to enter the U.S. in violation of law."

   As to its current limits, the supplementary information notes that the new rule "does not implement the full nationwide expedited removal authority available to DHS." It is true that the reach of expedited removal authority could be much greater: DHS has the authority to apply the provision to any alien who cannot establish continuous physical presence for a full two years (rather than the 14 days under the rule), and the statute "does not limit geographically the application of expedited removal." In other words, the process could be implemented nationwide to any alien who cannot demonstrate the requisite two years physical presence. As DHS notes, therefore, the new rule does nothing to limit its future authority from implementing "the full nationwide enforcement authority of the statute through publication of a subsequent Federal Register notice."

   Notwithstanding the geographic limits described in the supplementary information, approximately 6,000 miles of U.S.-Canadian and U.S. – Mexican border are potentially involved. Apparently recognizing that some U.S. citizens, lawful permanent residents, asylees and refugees might be caught up in the snare of the new authority, the rule notes that persons claiming such status "will receive the same procedures, including the right to review of any adverse expedited removal order by an immigration judge, that are provided to arriving aliens making similar status claims who are currently placed in expedited removal at ports of entry." The best advice for any person traveling within 100 miles of the Canadian or Mexican border is to have proof of U.S. status and residence available.
   

2. US-VISIT Expands

   By notice published in the Federal Register on August 20, the DHS identified six ports of entry – including the Albany International Airport – as participants in the US-VISIT program. The rule states that these six ports of entry "are being added as they were originally intended to be part of the initial list of designated ports of entry published on January 5, 2004," and was effective immediately.

   Under US-VISIT (United States Visitor and Immigrant Status Indicator Technology Program), aliens seeking admission to the U.S.A. pursuant to a visa, and who travel through designated air and sea ports of entry or departure, have their two index fingers scanned and a digital photograph taken to verify their identity and authenticate travel documents. Generally, such verification involves the comparison of biometrics obtained at the U.S. port with those obtained in connection with visa issuance by a U.S. consulate overseas.

   A few days earlier, a New York Times article reported on the statement of Representative Jim Turner (D-TX) that US-VISIT was "a striking failure." Following an investigation by his staff, Congressman Turner stated in an interview that "the administration has allowed three years to pass without making virtually any progress toward building the type of integrated, interoperable entry-exit system that the 9/11 commission has determined is necessary to protect America from the threat of global terrorism." Not surprisingly, Bush administration officials, including Asa Hutchinson (Under Secretary for Border Security), defended the system’s progress to date.

   The DHS published an additional interim rule on August 31, regarding its authority to collect biometric data from additional travelers and its plan to expand US-VISIT to the 50 most highly trafficked land border ports of entry. The new rule "further defines the population of aliens who are required to provide biometrics identifiers" to include nonimmigrants who are visa exempt under the Visa Waiver Program, and Mexicans to whom a Form I-94 is issued upon admission to the U.S.A. Visa waiver travelers, the rule notes, account for nearly 50% of nonimmigrant aliens seeking admission to the U.S.A. annually, and enrolling them reduces prospects for fraud and identity theft that could compromise public safety and national security.

   The 50 land border ports of entry to be included in US-VISIT are to be identified no later than December 31, 2004 and will be the subject of future Federal Register notices. The rule appears to have been motivated by the Report of the Commission on 9/11, which the rule notes "emphasizes the need to make US-VISIT fully operational as soon as possible and that the present timetable 'may be too slow, given the possible security dangers.'"

3. TSA’s “Secure Flight;” Biometrics Protect Liberty: Moves Toward Interior Immigration Enforcement?

   By press release dated August 26, 2004, the Transportation Security Administration ("TSA") announced that it will assume responsibility for checking interior U.S. flight manifests against so-called "watch lists" for terrorists. Testing of TSA's new passenger prescreening program, called "Secure Flight," is to begin within 60 days. Currently, watch list checks are handled by each individual airline. The purposes of the change are several: help eliminate most of the false alerts for those who should not be on the lists, help move passengers through airport screening more quickly, and reduce the number of travelers subjected to secondary screening, "while fully protecting passengers' privacy and civil liberties."
   Among those who might appreciate attaining these goals will be Senator Edward Kennedy (D-MA) and Representative John Lewis (D-GA). The two members of Congress are the recent subject of articles recounting their travel travails because their names or similar names appear on the watch lists. Accounts suggest that many others have also been erroneously subjected to screening efforts. Largely because of such problems, the American Civil Liberties Union "cautiously welcomed the change," according to an August 16 New York Times report.

   A recent Washington Post article regarding TSA assumption of the watch list review reported that an "FBI spokesman" indicated "officials are trying to enhance the list with such facts as birth dates and other ‘identifying factors that will permit law-enforcement authorities to ascertain whether the individual in front of them is the person whose name is on the list.'" The most reliable such factors would presumably involve biometrics. Therefore, it would not appear to be a stretch of logic to suppose that biometrics might soon be utilized in the domestic travel context.

   Already, according to a New York Times report of August 12, visitors to the Statue of Liberty who err by taking along too-large packages or bags must have their fingerprint scanned "to rent, close and reopen lockers." The article points out that other everyday activities – from grocery shopping to travel to financial transactions – already do or will soon incorporate biometrics technologies.

   The TSA, of course, is one of the many agencies within the DHS. If biometrics becomes a tool used by the TSA for domestic air travel, one has to wonder whether DHS will assert its statutory authority for "full nationwide expedited removal authority" in relation to domestic air travelers.