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The $99 Border Guard
by Daniel M. Kowalski

It never sleeps, doesn't eat, drink or smoke, and retails for $99. It's about the size of a pack of cigarettes, plugs into a computer, and recognizes fingerprints. Your body becomes your password. The INS would love to install these devices at every port of entry, in hopes of achieving better border control. Why not?

The INS is slowly integrating biometrics into its arsenal of weapons to make us safe from the invading alien hordes, but for the moment consider how the bulk of inspections are performed: an officer on the line looks at a face, listens to a voice, perhaps looks at a document or two, and then decides whether the bearer is a citizen or alien. If the officer decides "citizen," the entrant crosses the border. If the officer decides "alien," documents may be checked again, and more questions may be asked. If the officer decides the alien is admissible, the alien crosses the border. If not, the alien may be detained for a removal hearing, paroled into the United States for further inspection or proceedings, offered the opportunity of withdrawing her application for admission, or summarily subjected to expedited removal.

All of these decisions happen in a matter of minutes, often seconds, based on faces, voices, "body language," and a cursory review of a wide variety of documents. Few are happy with the results. Though the process takes only a short time, the lines for the admissible many often stretch for hours. (Try driving from Vancouver, B.C. to Seattle on a Sunday afternoon, and take a book or two to read while you and thousands of others crawl through the Peace Arch border crossing.) And the inadmissible few are sometimes subjected to an interrogation and detention process which is truly primitive. This could all be avoided, say the fans of biometrics, if the entry process were mechanized and based on machine-readable body features such as fingerprints, palmprints or iris scans. The admissible many would zip through the border in a matter of seconds, while the inadmissible few would be routed to secondary inspection for further review, out of the stream of traffic.

What's wrong with this vision of the future? Who could object to a faster, more reliable entry process? First, and perhaps foremost, there is the issue of "scalability." That is, what works for one office, controlling access to a building or a computer by means of biometric identifiers, may not be able to be "scaled up" to work for an entire nation's borders. The logistical challenges seem to be insurmountable, and the risk of error, insupportable.

As to logistics, the system would only be effective if nearly everyone on the planet were in the INS's fingerprint database, and it's doubtful that many of us will stand still for that. (Nevertheless, the INS continues to patiently catalog, by photograph and fingerprint, the biometrics of hundreds of thousands of aliens each year, some for adjustment of status, others for detention and removal.) Those of us secure in our identities, political and otherwise, might not mind too much. But large numbers of individualists on the left and the right will resist (some in ways less than peaceful) having their mug shots and thumb prints added to the INS central computer. And without a large, nearly comprehensive, database, the system would be all but useless, as the ports of entry would be even further subdivided into lines for those who are "in the system" and those who are not.

System failure is another reason for caution. If you can't log on to your computer because you forgot your password, or get into your building because you forgot your cardkey, it's probably a blessing in disguise, at least for a few hours. But if you are denied entry into the land of your birth because "the computer is down," and you aren't carrying your (old-fashioned, paper) passport because you thought you'd just zip through the "fingerprint" line, you won't be so sanguine.

And in the end, will a more "secure" border really make us safer or happier? No machine, and no live border guard, can peer into heart and mind of an intending entrant to determine motive, intent, or purpose with certainty. Most aliens, like most citizens, behave well and want to obey our laws. The nefarious few, citizens and aliens alike, will always find ways to skirt the checkpoints, leaving the $99 border guards blinking and beeping in the dark.


Daniel M. Kowalski is a member of the editorial board of The Federal Lawyer and practices immigration law in Seattle at the firm of Ryan, Swanson & Cleveland, PLLC. He is the editor in chief of Bender's Immigration Bulletin, published by Matthew-Bender & Co. Inc., New York.