On Monday, the Senate Judiciary Committee adopted an amendment to the Gang of Eight amnesty bill (S.744) that merely begins the process of implementing a biometric exit system\u2014a system already required by law. The amendment, offered by Senator Orrin Hatch (R-UT)(Hatch 6, as amended by Senator Schumer), was intended to quell criticisms that S.744 is weak on border security. However, a closer analysis shows that the amendment is not even as demanding as current law.<\/p>\n
The fight to implement an effective, biometric entry-exit system in the U.S. has been a long one. In 1996, Congress passed the first law requiring the government implement an entry-exit system to track aliens as they enter and leave the U.S. (IIRAIRA, Division C of Pub.L. 104\u2013208<\/a>). At that time, Congress provided that the automated system must:<\/p>\n 1) Collect a record of departure for every alien departing the United States and match the records of departure with the record of the alien’s arrival in the United States; and Congress mandated the entry-exit system because it knew the government could not accurately track aliens entering and leaving the United States. The entry-exit system would not only increase national security, but also help enforce the laws against the sizable portion of the illegal population that overstays their visas.<\/p>\n In 2000, Congress passed another law regarding the entry-exit system, this time requiring the system to be \u201celectronic,\u201d and to be implemented at all air, sea, and land<\/u> ports of entry. (Immigration and Naturalization Service Data Management Improvement Act of 2000, Public Law 106-215).<\/p>\n Again in 2000, when amending the Visa Waiver Program, Congress required a \u201cfully automated entry and exit control system\u201d to record entry and departure information for all aliens participating in the Visa Waiver Program. Congress also required the passports of participants in the Visa Waiver program to be machine-readable. (Visa Waiver Permanent Program Act, Public Law 106-396)<\/p>\n In 2011, after the September 11 terror attacks, Congress once again demanded the government implement an entry-exit system through passage of the PATRIOT Act (Public Law 107-56, October 2001) The intent of Congress was crystal-clear. Section 414 of the PATRIOT Act states:<\/p>\n \u201cIn light of the terrorist attacks perpetrated against the United States on September 11, 2001, it is the sense of the Congress that the Attorney General, in consultation with the Secretary of State, should fully implement the integrated entry and exit data system for airports, seaports, and land border ports of entry\u2026 with all deliberate speed and as expeditiously as practicable\u2026<\/strong>\u201d<\/p><\/blockquote>\n Importantly, as part of the PATRIOT Act, Congress demanded that the entry-exit system be biometric<\/u><\/strong> and based on tamper-resistant, machine-readable documents<\/u><\/strong>. (Sec. 414) A biometric system requires that an immigration document match the individual presenting it to an immigration official. There are a variety of ways to make a document biometric. Perhaps the most common way is to incorporate digital fingerprints, which can easily be run through computer databases to match records on file. According to DHS\u2019s own website<\/a>: \u201cUnlike names and dates of birth, which can be changed, biometrics are unique and virtually impossible to forge. Collecting biometrics helps the U.S. government prevent people from using fraudulent documents to enter the country illegally. Collecting biometrics also helps protect your identity in the event your travel documents are lost or stolen.\u201d <\/p>\n In 2002 Congress reiterated its demand for a biometric entry-exit system. It passed legislation requiring that the government issue aliens \u201conly machine-readable, tamper-resistant visas and other travel and entry documents that use biometric identifiers.\u201d It also required that the government install biometric readers and scanners \u201cat all ports of entry<\/u> of the United States\u2026\u201d (Enhanced Border Security and Visa Entry Reform Act of 2002 (Public Law 107-173, Sec. 303, 8 U.S.C. 1372))<\/p>\n In 2004, Congress again demanded a biometric entry exit system through the passage of the Intelligence Reform and Terrorism Prevention Act of 2004. (Pub. L. 108-458, Title VII, Sec. 7208, Dec. 17, 2004, now 8 U.S.C.S 1365b) That law reads:<\/p>\n \u201cCongress finds that completing a biometric entry and exit data system as expeditiously as possible is an essential investment in efforts to protect the United States by preventing the entry of terrorists.\u201d (8 U.S.C.S 1365b(a))<\/p><\/blockquote>\n It also provides that DHS \u201cshall develop a plan to accelerate the full implementation of an automated biometric entry and exit data system.\u201d (8 U.S.C. 1365b(c))<\/p>\n Yet, despite these repeated demands of Congress, the United States government still has not implemented a full biometric entry-exit system. The government has indeed implemented a biometric entry<\/u><\/strong> system and is taking digital fingerprints of aliens who enter the U.S. But to-date \u2013 17 years after the first law passed by Congress \u2013 the U.S. still has no biometric exit system. So while the government has a reasonable idea of who enters the U.S., law enforcement officials have no idea if the aliens ever leave the country.<\/p>\n Unfortunately, S.744 does not require a biometric entry-exit system. Section 3 of the bill merely requires that before DHS can grant RPI status to illegal aliens, DHS must \u201ccertify\u201d that DHS \u201cis using an electronic<\/u><\/strong> exit system at air and sea ports<\/u><\/strong> of entry that operates by collecting machine-readable visa or passport information from air and vessel operators.\u201d (p.12) Thus, as drafted, the bill falls short of current law. It does not require a biometric system and it only requires implementation at air and sea ports of entry, not land ports of entry, as required by current law.<\/strong><\/p>\n The amendment offered by Senator Orrin Hatch yesterday was merely a token provision to improve the original language in S.744. The amendment maintains the language in the original bill and, in addition to that, provides that DHS shall establish, within two years of enactment, a mandatory biometric exit data system at the 10 airports with the highest volume of international travelers. Within six years, the amendment requires DHS establish a biometric exit system at the 30 busiest international airports. Finally, no later than six years after enactment, DHS must merely submit a plan to Congress \u201cfor the expansion of the biometric exit system to \u201cmajor\u201d sea and land entry and exit points within the U.S. Thus, the Hatch amendment, like S.744, only requires a fraction of what is already required by current law.<\/p>\n So far, the Gang of Eight \u2013 with the exception of Senator Rubio \u2013 has steadfastly opposed the full implementation of a biometric entry-exit system. Last week, Senator Schumer complained that implementing a biometric entry-exit system was ineffective and could delay the amnesty program indefinitely.<\/p>\n
\n2) Enable the Attorney General to identify, through on-line searching procedures, lawfully admitted nonimmigrants who remain in the United States beyond the period authorized by the Attorney General. (Sec. 110)<\/p>\n