Copland and Brenner

Table of Contents

1. Target Practice
2. Fences, Neighbors, and Lame Ducks
3. In Brief: Recent Developments

1. Target Practice

   Welcome to hunting season. The federal government has every international traveler – including U.S. citizens and lawful permanent residents – in its sights, by means of “targeters” working for U.S. Customs and Border Protection’s (“CBP”) National Targeting Center. According to CBP, targeters “work around the clock conducting data analysis and querying electronic databases such as the Treasury Enforcement Communications System, the Automated Commercial System, the Automated Targeting System [‘ATS’] and the Automated Entry System. Their work is like panning for gold as they sift through information looking for nuggets of information that would trigger a closer examination or preclude a person or shipment from entering into the United States.”

   “Targeters are the ‘new frontline’ of our security. Their work results in an advance electronic border through which people and products must pass. Constantly changing screens of data, reminiscent of a scene out of the Matrix, flash passenger and reservation information that is compared with lists of known terrorists to identify potential matches. Links with the ports and with other law enforcement databases can identify passengers who pose a potential risk in advance of their arrival into the United States.” See the CBP web site, at http://www.cbp.gov/xp/CustomsToday/2005/nov_dec/targeting.xml.

   On November 2, 2006, the Department of Homeland Security (“DHS”) published a notice in the Federal Register , bearing the title “Privacy Act of 1974; System of Records.” The DHS notice states that its purpose is to “provide expanded notice and transparency to the public.” The topic at hand is ATS. As the notice states, the Privacy Act requires federal agencies to publish in the Federal Register a description of each system of records it maintains, its routine uses, the uses to which personally identifiable information is put, and how individuals may find such files within the agency. This rule, then, is CBP’s answer to this Privacy Act mandate.

   CBP, since the split of the legacy Immigration and Naturalization Service in March 2003, has been the federal agency responsible for securing U.S. borders with respect to people and cargo. As part of the agency’s mission, travelers and cargo are scrutinized with respect to admission criteria for people and goods. This responsibility is likely to be thought of in the context of large cargo containers arriving at U.S. sea ports, and the arrival of aliens (i.e., non-U.S. citizens) in the U.S.A. By noting that the Privacy Act defines “individual…to encompass United States citizens and legal permanent residents,” the new rule makes it clear that more is involved for all of us.

   ATS includes “the traveling public through information submitted by their carrier to the Advance Passenger Information System; [as well as] persons crossing the United States land border by automobile or on foot.” With ATS, CBP “targeters” associate “information from CBP's cargo, travelers, and border enforcement systems with a level of risk posed by each item and person as determined through the rule based query of the cargo or personal information accessed by ATS.” Passenger name record information, already collected under existing CBP regulations from carriers of inbound and outbound travelers, is stored in the ATS system as part of the information used for screening.

   In addition to passengers of carriers, persons otherwise "seeking to enter or exit" the U.S.A. are covered by ATS. Also covered are operators and crew of carriers, persons who engage in the import and export of merchandise, and persons employed in any capacity related to the transit of merchandise intended to cross the U.S. border. "ATS builds a risk assessment for cargo, conveyances, and travelers based on criteria and rules developed by CBP." ATS will maintain the resulting assessment, as well as a record of the rules used and a reference to the underlying records used to develop it "for up to forty years to support ongoing targeting requirements." All this, with a purpose to target individuals, conveyances and cargo that involve a risk to border security or a terrorist threat to the U.S.A.

   Readers may recall reports of Senator Edward Kennedy's interior U.S. travel problems around mid-2004, which occurred because the alias "T. Kennedy" was an alias of someone actually on a list of terrorist suspects. It was only after DHS Secretary Tom Ridge became involved that the unwarranted delays stopped ( The Washington Post , August 20, 2004). With ATS, even a U.S. senator might not be so lucky: "Since this system of records may not be accessed, generally, for purposes of determining if the system contains a record pertaining to a particular individual and those records, if any, cannot be inspected, the system may not be accessed under the Privacy Act for the purpose of contesting the content of the record."

   The new system will be effective December 4, 2006 "unless comments are received that result in a contrary determination."

2. Fences, Neighbors, and Lame Ducks

   On October 26, 2006, President Bush signed into law the Secure Fence Act, thus authorizing the construction of approximately 700 miles of fencing along the U.S. – Mexico border. In writing on the matter, the American Immigration Lawyers Association (“AILA”) notes that “Congress has only appropriated a small fraction of the more than $7 billion it would cost to erect such a structure. The current appropriation of $1.18 billion, provided for in the DHS Appropriations Act of 2007, will only fund 90 miles of fence, according to experts.” (AILA InfoNet Doc. No. 06102663)
   
   AILA President Carlina Tapia-Ruono noted experts’ opinions that “the fence will have a minimal impact on reducing unauthorized migration. Not only will migrants go through, over, or under it to find jobs in the United States, but approximately 40% of undocumented immigrants enter through our legal ports of entry and remain past the expiration dates of their visas. The fence will not stop that from happening.”

   AILA continues to advocate for comprehensive immigration reform, or “CIR.” And a White House Fact Sheet, issued on the same day the bill was signed, seems to agree:

   - “ Comprehensive Immigration Reform Requires That We Enforce Our Immigration Laws Inside America ….the President has also called on Congress to create a better system for verifying documents and work eligibility.”
   
   - “ Comprehensive Immigration Reform Requires That We Reduce The Pressure On Our Border By Creating A Lawful Path For Foreign Workers To Enter Our Country On A Temporary Basis . A temporary worker program would meet the needs of our economy, reduce the appeal of human smugglers, make it less likely that people would risk their lives to cross the border, and ease the financial burden on State and local governments by replacing illegal workers with lawful taxpayers. Above all, a temporary worker program would add to our security by making certain we know who is in our country and why they are here.”
   
   - “ Comprehensive Immigration Reform Requires That We Face The Reality That Millions Of Illegal Immigrants Are Here Already . The President opposes amnesty but believes there is a rational middle ground between granting an automatic path to citizenship for every illegal immigrant and a program of mass deportation. Illegal immigrants who have roots in our country and want to stay should have to pay a meaningful penalty for breaking the law, pay their taxes, learn English, work in a job for a number of years, and wait in line behind those who played by the rules and followed the law.” (emphasis in original) The Fact Sheet is online at http://www.whitehouse.gov/news/releases/2006/10/20061026-1.html.
   
   If the President agrees CIR is the way to go, and the Senate’s bill indicates one House of Congress is behind it, what are prospects for CIR after the November 7 elections? This, AILA notes, is up to the so-called “lame duck” session that of Congress that will return – briefly – to Washington before the traditional pre-Christmas adjournment. “A ‘lame duck’ session of Congress occurs whenever one Congress meets after the election of its successor has taken place, but before the succeeding new Congress begins. The members in the lame duck session, therefore, are the sitting members of the existing Congress, not the members-elect of the new Congress.” (AILA InfoNet Doc. No. 06103164)
   
   When faced with "political disputes and the difficulties of reaching legislative decisions in a post-election environment,.lame duck Congresses have deferred major matters to the succeeding Congress, especially when the party in power looked forward to a stronger majority in the new Congress. If one or both Houses of Congress change majority parties this year, we could again see a short lame duck session where members defer matters to the succeeding Congress." In other words, we may see matters deferred to the 110th Congress. Id .

   An alternative scenario is if Congress continues to dilly-dally on appropriations (spending) bills required to fund federal agencies for fiscal year 2007, which began on October 1. This year, AILA notes that only two of eleven appropriations bills have been enacted thus far. With time short, the makeup of the new Congress mere speculation, and prospects of working well together across the aisles unclear, it is possible that no agreements will be reached on individual bills. In such a case, there is the possibility of an omnibus bill (an enormous statute incorporating a law number of widely disparate - and some hidden - measures). In the past, our elected representatives have complained that they were not given sufficient time to even read omnibus measures before the scheduled vote, leaving them in the dark as to what they were supporting or opposing. Alternatively, a continuing resolution would defer action until the 110th Congress is in place in January 2007. Id .
   

3. In Brief: Recent Developments

   New USCIS Web Site : On November 1, USCIS unveiled its new web site, at http://www.uscis.gov/portal/site/uscis. This should generally be understood to break existing links in an enormous range of informational articles (including our newsletters), as well as other web sites, that point to old web addresses.
   
   H-2B Returning Worker Provisions Extended : On October 23, USCIS announced that the “returning worker” exemption to the H-2B quota was extended by the National Defense Authorization Act for Fiscal Year 2007, signed into law by President Bush on Oct. 17, 2006. The one year extension of the “returning worker” provisions will remain in effect until September 30, 2007. This means that petitions filed for returning H-2B workers do not count towards the congressionally mandated bi-annual H-2B cap. “Returning workers” are exempt from H-2B cap limitations. In order to qualify, USCIS must have previously counted the “returning worker” against the H-2B numerical cap in one of the three fiscal years preceding the current year (i.e. between October 1, 2003 and September 30, 2006). Any worker not certified as a “returning worker” is subject to the numerical limitations for the relevant fiscal year. Petitions received after the “final receipt date” which contain a combination of “returning workers” and workers subject to the current H-2B cap will be rejected with respect to non-returning workers, and petitioning employers will receive partial approvals for those aliens who qualify as “returning workers” if otherwise approvable.

   Expansion of bi-specialization : According to a public notice issued October 25, 2006, U.S. Citizenship and Immigration Services (“USCIS”) will begin Phase 3 of its “bi-specialization” program effective October 30. Bi-specialization is the USCIS initiative to use centralized filing and aligning similar workloads of specific case types between two “sister” service centers. In Phase 3, USCIS will forward any new filings for Form I-539, Application to Extend/Change Nonimmigrant Status, involving F-1 and M-1 student reinstatement, to the California Service Center or the Vermont Service Center, depending on where the student is engaged in academic or vocational study.

   Reminder to our U.S. Citizen Readers : November 7 is election day. Exercise your right to vote.