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September 20, 2001
Federation for American Immigration Reform
1666
Connecticut Avenue, Suite 400
Washington, D.C. 20009
(202) 328-7004
www.fairus.org
See also: Chronology of Terror
FAIR has produced a series of recommendations that, if implemented, will make it more difficult for terrorists to enter the United States in the first place, and more difficult for them to operate unlawfully within our borders.
Immigration visas, which earn a foreigner permanent residence (a “green card”) are issued by consular officers only after a rigorous screening process that includes medical and background investigations. The only exception was provided for persons who were in lawful nonimmigrant status in the United States (students or temporary workers, for example) who had become sponsored for an immigrant visa (by a spouse or employer, for example). They are permitted to change status to permanent resident without leaving the country if they are not found ineligible by the INS.
In 1994, Congress enacted a provision - INA Sec. 245(i) - that amended the law to also permit adjustment to permanent residence for illegal aliens if they had found a sponsor and paid a penalty fee. As enacted by Congress, Sec. 245(i) expired September 30, 1997. However, in 2000, at the end of the Clinton Administration, Congress revived it for a four-month period Administration. And the Bush Administration has proposed a further renewal of the exemption from consular screening.
The Sec. 245(i) loophole creates the possibility for persons to illegally enter the United States or to overstay their visas with impunity and to gain permanent status if they have found an employer or spouse to petition for their residence status. It, therefore, is a form of amnesty for immigration lawbreakers, and, as such, encourages others to break the law in the expectation of being similarly rewarded. By not having to apply to the overseas consular officers for immigrant visas, the aliens escape both the more rigorous screening process that is part of the normal immigration process, and the provision adopted in 1996 that requires a penalty period before an illegal alien may return to the United States for permanent residence.
To protect the American people from foreign terrorists, the United States cannot afford to have a dual standard of screening aliens who are given the right to permanent residence in our country, especially the Section 245(i) provision that uses a more lax screening process for persons who have already violated the U.S. immigration law.
At present INS and State Department computerized database systems are incompatible, making information sharing difficult and cumbersome. The INS is unable to access background check information developed overseas, the State Department is unable to check information on any criminal or subversive activity that a visa applicant may have committed during an earlier stay in the United States, and the FBI is unable to determine the immigration status of aliens in the United States who become investigation suspects.
Currently the INS takes fingerprints of aliens who apply for permanent residence or for naturalization or other benefits and sends them electronically to the FBI to determine whether they have any criminal record. The FBI does not retain those fingerprints, because the FBI is not authorized to do so by the INS. As those fingerprints may be vital to establishing the identity of aliens involved in terrorist attacks, whether as victims or perpetrators, or for other investigative reasons, the INS should change its policy and authorize FBI retention of the fingerprints.
In April 1996, a task force chaired by the director of the FBI issued a report, Controls Governing Foreign Students and Schools That Admit Them. The report adopted as its fundamental “guiding principle” the concept that Americans need confidence in their government's capacity to protect them from terrorists and criminal aliens. The report notes a “growing degree of public concern” about “instances where terrorists and criminal aliens have been linked to student visas.”
The requirement to establish a database of foreigners here on F (student), M (vocational trainee), or J (exchange visitor) visas was adopted as Sec. 641 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). The act specified that the system should be operational within 18 months of enactment.
In 1997 INS established a pilot project (the Coordinated Interagency Partnership Regulating International Students - CIPRIS) at 21 schools in the southeast U.S. to study how the system would work. Schools have adamantly opposed the requirement in the law that they would collect the user fee ($95) from the student for forwarding to the INS.
In 2000, an amendment was adopted to relieve the schools of the fee collection requirement. Currently INS has plans to launch a new test of the program in mid-2001 and to have CIPRIS fully implemented by 2005. This database needs to be implemented immediately.
In addition to monitoring their entry and exit, it is important to conduct country of origin background checks on all foreign student visa applications. Such background checks would prevent student visas from being issued to individuals associated with terrorist organizations.
The government needs to be able to detect students who enter the country but never arrive at the school, as was the case with one of the September 11 terrorists. In addition, the information system should identify foreign students who are not in compliance with the terms of their visa, flunked out of school, or graduated. Tracking compliance would enable the INS to seek and remove those who are out of compliance.
Congress in 1996 recognized the need for establishing a database on all foreign visitors that would identify those who had overstayed their visas. The measure (Sec. 110 of IIRAIRA) required establishment of the database within two years of enactment, i.e., in 1998. The database would allow INS to maintain accurate records on the entry and exit of individuals, and enable expeditious apprehension and expulsion of those who stay beyond their visa expiration date.
By 1998, Congress, at the request of business and the tourism interests, delayed implementation by requiring further study of the feasibility of such a system. FAIR criticized the delay: - “Getting rid of this important anti-terrorism provision because of claims that it will be ‘inconvenient’ to foreign visitors puts the American public on a direct path with international terrorists.”
In June 2000,Congress enacted a compromise (PL 106-215) that maintained Sec. 110 but extended the timetable for its implementation and restricted comprehensive application to accommodate Canadians and others for whom we have waived visa requirements on the basis of reciprocity. Airports and seaports were given until the end of 2003 to implement the data system. Land borders were given until the end of 2004 to enter the system. The system was to become fully operational by the end of 2005.
Current technology employed in machine-readable passes for frequent travelers and in the new border crossing cards, both with biometric identifiers, should be adopted as a standard for routine entry and exit of the United States, with the electronic information being stored and retrievable as part of the entry-exit database.
This database could also be used to track the current address of all foreign residents. In 1981, Congress set aside the annual reporting of foreign visitors in favor of reporting only in the event of a change of address. The INS has failed to press for compliance with even this watered-down provision. This hampers the ability of the INS to adequately monitor and track the whereabouts of foreign residents, as witnessed in the recent terrorist events.
In 1996, following the recommendations of the U.S. Commission on Immigration Reform, Congress recognized the need to provide a means for employers to verify the authenticity of documents to implement the prohibition on hiring illegal aliens and instructed the INS to conduct a pilot project to test the feasibility of a verification system. Three pilot projects were mandated and they have now been tested and evaluated.
Identity verification is nothing new. All state and local government agencies that administer federal government welfare programs have been required for years to check with federal databases to prevent illegal aliens from receiving benefits.
The INS, however, has not reported to Congress on the evaluation, and the opposition of the advocates of loose controls against illegal immigration, including employers of low-wage workers, and ethnic advocacy groups, may be expected to oppose establishment of a mandatory national system of document verification.
The processes by which the September 11 terrorists obtained driver’s licenses in Virginia and Florida show that it would be a valuable counter-terrorism measure to restrict the issuance of driver’s licenses to non-LPRs to the federal government. By doing so, the government would be able to screen applicants against lists of known foreign terrorists and persons suspected of connections to foreign terrorist organizations. In addition, the information in the federal driver’s license database would be a valuable tool in assisting investigations, if a non-LPR should subsequently be identified as a suspect.
A collateral benefit of ending the varying state standards for issuance of driver’s licenses to non-LPR aliens would be to remove the contentious issue of issuance of licenses to illegal aliens. A precedent for the proposal to establish a federally-issued license for non-LPR aliens is the current system in which the U.S. Department of State has taken responsibility for the issuance of license plates to foreign diplomatic and consular personnel assigned to the United States.
To avoid possibly impeding international tourism, the DOT should arrange to handle advance issuance of limited-duration (e.g. for one month, but renewable) licenses for travelers to the United States through travel agencies. These would be issued like international driver’s licenses upon evidence that the visitor was licensed to drive in the traveler’s home country, presented evidence of a valid passport, and evidence of insurance.
In 1999, the Sec. 656 requirement was repealed by H.R. 2084 signed by President Clinton on October 9, 1999 (Pub. L. No. 106-69). The campaign that led to this repeal was fueled by civil liberties, alien advocacy, and libertarian groups that argued that the ID verification system would be an infringement on civil liberties and would lead to a national identity database.
FAIR criticized this development, saying, “There is no rational reason why states cannot and should not be required to develop secure drivers’ licenses that both deter fraud and protect privacy.”
Several of the terrorists involved in the September 11 attacks had Florida driver’s licenses despite being illegally in the country after their entry permits had expired.
Local police currently may detain an illegal alien for immigration status violation only if their local laws give them that authority. Even if local law enforcement agencies detain persons whom they believe to be illegal aliens, the INS often advises them to release the persons because they do not have the resources to take them into custody.
In 1996 Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) which contained a provision (Sec. 133) authorizing the INS to enter into agreements with local law enforcement agencies to provide training in immigration law enforcement. After training the local police would gain authority to detain aliens for being in illegal immigration status and then turn them over to the INS for removal from the country. The Department of Justice has failed to take action to inform local police jurisdictions about, or encourage to take advantage of, this provision. The greater leverage against the millions of illegal aliens
Asylum uses the same definition as for a refugee: “a person who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” In immigration and federal court decisions over recent years, the definition has been interpreted increasingly broadly to apply to persons subject to societal pressures, such as some societies condoning spousal or child abuse or ostracism for homosexuality.
In addition, a provision enacted in 1996 specifically provided political persecution status to persons (Chinese) who claimed that they would be subjected to forced family planning practices if they were returned home. It is extremely difficult to judge the validity of any of these claims, and fabricated and questionable asylum claimants have succeeded in gaining permanent U.S. residence.
Originally, asylum status was created in 1980 to cover the cases of aliens already in the United States legally who faced possible persecution because of a change of government in their country if they were forced to return home at the end of their authorized stay in our country.
By opening up asylum status to persons illegally in the country, the process becomes a means for persons to enter the country illegally and then try to adjust their status to permanent resident. Some persons identified as involved in international terrorist activities in the United States have used the asylum policy as a means to avoid deportation from the United States or from Canada.
Civil libertarians, however, have launched a campaign trying to specify that any information used in a removal proceeding must be presented to the defendant to allow rebuttal. Intelligence services say that the adoption of that provision would effectively eliminate their furnishing of classified information for removal proceedings, because the disclosure of the information to the alien would jeopardize the source of the information.
The terrorist attacks against the United States reveal the need for intelligence agencies to develop much more information on the activities of international terrorist organizations, which will be seriously compromised if they are not able to assure informants that the confidentiality of their information will be protected.
Sec. 101 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) mandated a process of strengthening the personnel resources of the U.S. Border Patrol to bring it to 10,000 officers by 2001. That has not been achieved in part because Congress withheld some of the necessary funding and in part because the INS has had to cope with a high rate of attrition due to higher pay and a more supportive environment elsewhere.
Over the last several years, INS efforts to stem the flood of illegal aliens entering across the Mexican border has led the agency to pull officers away from the Canadian border and interior enforcement operations. As a result, the Canadian border has grown increasingly penetrable by illegal entrants.
The breakdown in the INS’s efforts to find and remove illegal aliens who managed to sneak past the Border Patrol or who violate their visa status has further encouraged the massive wave of illegal immigration. The flood will not abate as long as jobs are readily obtainable by illegal workers and as long as there is no meaningful prospect of enforcement by the INS.
FAIR 9/01
