How The Immigration-Related Provisions Of H.R. 10 Implement The 9/11 Commission Report
The immigration-related provisions in Titles II and III of H.R. 10 (The 9/11 Recommendations Implementation Act) are an integral and central part of the global strategy to protect against and prepare for terrorist attacks prescribed in Sections 12.3 and 12.4 of the 9/11 Commission Final Report, and in the related detailed analysis in the 9/11 Commission Staff Report.
"The routine operations of our immigration laws - that is, the aspects of those laws not specifically aimed at protecting against terrorism - inevitably shaped al Qaeda's planning and opportunities." Report, p. 384.Each of the several dozen immigration-related provisions of H.R. 10 forms an essential part of this layered protective system. Enactment of costly provisions for data systems integration, for example, will be of limited value so long as fraudulent identity documents remain readily available, or enforcement is limited to a relative handful of federal special investigators, or terrorists can use legal loopholes to enter and remain at large in the United States.
Title II, Terrorism Prevention and Prosecution
Interoperable Law Enforcement and Intelligence Data System- The "Chimera" data system was originally mandated by the Enhanced Border Security and Visa Entry Reform Act of 2002, but was never implemented by the Department of Homeland Security (DHS). § 2192 assigns responsibility for implementation to the new National Intelligence Director and requires that the system be operational on an interim basis within one year of enactment, and be fully operational by September 11, 2007.
"The challenge is to see the common problems across agencies and functions and develop a conceptual framework-an architecture-for an effective screening system." Report, p. 386.Title III, Border Security and Terrorist Travel
Western Hemisphere Exception- §§ 3001 & 3002 eliminate the existing loophole that allows U.S. citizens and nationals of Canada, Mexico and certain Caribbean island nations to enter or depart the United States from those neighboring countries without presenting a secure identity document prescribed by DHS. These provisions will deter terrorists and other inadmissible persons from entering the U.S. from Mexico, Canada and the Caribbean by simply claiming to be U.S. citizens.
"Americans should not be exempt from … enabling their identities to be securely verified when they enter the United States; nor should Canadians or Mexicans…. The current system allows non-citizens to gain entry [from Canada, Mexico and the Caribbean] by showing minimal identification." Report, p. 388.Increased Enforcement Personnel and Detention Space- For fiscal years 2006 through 2010, § 3003 adds at least 2,000 new Border Patrol agents per year, while § 3004 adds 800 new interior investigators, of whom at least half must be dedicated to enforcement of work authorization laws. § 2005 increases detention facility bed space by 2,500 per year during FY 2006 and 2007.
"The first problem encountered by those concerned about terrorists was an almost complete lack of enforcement resources. Neither the White House, the Congress, the Department of Justice, nor the INS leadership ever provided the support needed for INS enforcement agents to find, detain, and remove illegal aliens, including those with terrorist associations." Staff Report, p. 95.
"[S]pecial agents lack the resources and authority to pursue visitors for immigration violations associated with terrorist activity. Each immigration encounter with an alien should be treated both as an opportunity and an obligation to verify the individual's identity and legitimate purpose in seeking to enter or to stay in the United States." Staff Report, p. 164.Standards for Alien Identification Documents- §3006 creates a uniform identity document rule for all aliens present in the United States. An alien seeking to establish his identity must present (a) a designated immigration document issued by DHS or the Department of Justice (DOJ), or (b) a domestic identity document that DHS has determined cannot be issued to an illegal alien, or (c) a valid foreign passport.
"Today more than 9 million people are in the United States outside the legal immigration system…. Secure identification should begin in the United States. The federal government should set standards for … sources of identification…. At many entry points to vulnerable facilities, including gates for boarding aircraft, sources of identification are the last opportunity to ensure that people are who they say they are and check whether they are terrorists." Report, p. 390.Expedited Removal- § 3007 creates a more uniform screening rule for inadmissible aliens, by limiting the authority of DHS to offer highly discretionary patchwork waivers to aliens of different national origins. Any alien who (a) has not been lawfully admitted or paroled into the United States, and (b) has not been continuously present in the United States for five years, and (c) who has not expressed an intention to claim asylum, shall be issued a removal order without further review. § 3007 will significantly reduce the systemic risk of terrorists and other dangerous inadmissible aliens being released from our overwhelmed and overcrowded detention facilities and absconding into the U.S. interior, and will restrict the practice of disparate treatment of illegal aliens based on their national origin or political influence.
"Our investigation showed that two systemic weaknesses came together in our border system's inability to contribute to an effective defense against the 9/11 attacks: a lack of well-developed counterterrorism measures as part of border security, and an immigration system not able to deliver on its basic commitments, much less support counterterrorism." Report, p. 384.Asylum Standards for Terrorist Suspects- § 3008 requires that asylum applicants who are suspected of belonging to or supporting guerilla, militant, or terrorist organizations, and who claim asylum without submitting corroborating evidence, must provide credible testimony showing that unlawful persecution is the central reason that the applicant cannot return to their home country. Applicants can no longer rely solely on their claimed participation in civil warfare, violent insurrection, or terrorism to obtain asylum.
"A number of terrorists… abused the asylum system." Staff Report, p. 99.
"Terrorists in the 1990s, as well as the September 11 hijackers, needed to find a way to stay in or embed themselves in the United States if their operational plans were to come to fruition…. [T]his could be accomplished legally by… applying for asylum after entering. In many cases, the act of filing for an immigration benefit sufficed to permit the alien to remain in the country until the petition was adjudicated. Terrorists were free to conduct surveillance, coordinate operations, obtain and receive funding, go to school and learn English, make contacts in the United States acquire necessary materials, and execute an attack." Staff Report, p. 98.Visa Revocation- § 3009 creates a more uniform rule for the deportation of aliens who have dishonestly obtained a visa. A foreign national present in the United States whose visa has been revoked will now be deportable. The Department of State (DOS) may revoke nonimmigrant visas for fraud, misrepresentation, and other unlawful acts. Immigrant visas may only be revoked by DHS for just and sufficient cause. Currently, foreign nationals whose visas are revoked subsequent to arrival in the United States often delay their departure indefinitely through administrative and judicial appeals. If the visa is revoked, the alien still is entitled to the deportation hearing and related appellate review available to aliens admitted to the United States.
"In their travels, terrorists use evasive methods such as altered or counterfeit passports… and immigration …fraud." "Two of the hijackers presented passports manipulated in a fraudulent manner. …[A]s many as eleven additional hijackers… held passports containing these fraudulent features." "All the hijackers whose visa applications we reviewed arguably could have been denied visas because their applications were not filled out completely." Report, p. 384, fns. 32, 33.
"[A]bout six months after it first learned it had issued the visa, the State Department revoked [1993 WTC terrorist Sheikh] Rahman's visa and sent a notice to the INS for entry in their National Automated Immigrant Lookout System (NAILS), which was done on December 10, 1990. However, Rahman had already used the visa to enter the United States on July 18 and November 15, 1990. Even though he was finally on the NAILS watchlist, Rahman used the visa to enter the United States again on December 16, 1990." Staff Report, p. 51Reform of Judicial Review of Orders for Removal- § 3010 creates a uniform process for judicial review at the appellate court level, by closing technical loopholes in the removal process that Congress had intended to curtail in 1996 by passage of IIRAIRA. However, since 1996 creative litigation by the immigration bar, focusing on hyper-technical arguments, has produced many judicially created exceptions and inconsistent rulings that have allowed dilatory appeals to again clog the dockets of federal district courts. H.R.10 closes those loopholes, which have been abused both by criminal aliens and by alien members of organizations that -- since 9/11 - have been classified as terrorist support organizations, in order to remain in the United States. The intent of § 3010 is that all legal claims for relief from removal, including habeas corpus, mandamus, all writs actions, and UN Convention Against Torture claims be considered in one appellate case.
"'Interior enforcement'… is governed by a set of extraordinarily complex laws, rules and regulations that are adjudicated in its own administrative court system. The law and the procedures governing these courts were geared toward giving the benefit of the doubt to the alien…. Aliens were granted multiple hearings, often resulting in lengthy delays. This system was easy to exploit…. Terrorists knew they could beat the system-and, as we have seen, they often did." Staff Report, p. 95.Additional Detention & Removal Authority for Terrorist-Related Activity - H.R. 10 creates more consistent procedures and protections for the detention and removal of alien supporters of terrorist activities. §§ 3031 and 3032 allow an alien who is removable due to terrorist activity to block deportation only if DHS determines that he or she is not a danger to U.S. security. DHS is given authority to detain these "specially dangerous aliens," subject to periodic "Zadvydas" custody reviews now required for other long-term detainees by the Supreme Court. Dilatory issuance of travel documents by foreign governments, including most state sponsors of terrorist organizations, is a primary cause of delay in final deportation and overcrowding in removal facilities. § 3033 allows DHS to return foreign nationals with final deportation orders who lack foreign travel documents to their countries of origin, as long as those countries don't physically prevent reentry.
"The United States should work with friends to develop mutually agreed-on principles for the detention and humane treatment of captured international terrorists who are not being held under a particular country's criminal laws. America should be able to reconcile its views on how to balance humanity and security with our nation's commitment to these same goals." Report, p. 379.National Driver's License Standards- § 3052 establishes uniform document security standards that states must meet in order for their driver's licenses and identification cards to be accepted for official purposes by federal agencies. Most notably, H.R.10 incorporates the highly successful legal presence documentation statute implemented by Virginia in January 2004. States are given three years to comply with these standards.
"All but one of the 9/11 hijackers acquired some form of U.S. identification document, some by fraud…. The federal government should set standards for the issuance of … sources of identification, such as driver's licenses." Report, p. 390.Interstate Driver's License Database- § 3053 authorizes federal grant funds for states that enter into an interstate compact agreement to link state motor vehicle databases containing the information printed on individual driver's licenses and individual driver's records. This will prevent access to multiple or false driver's licenses by terrorists and other inadmissible aliens.
"Three Salvadoran immigrants living in Virginia, two illegally and one a legal permanent resident, were found guilty of helping four September 11 operatives use fraudulent documentation to obtain Virginia identification documents." Staff Report, p.29.Birth/Death Records Security- §§ 3061 to 3067 establish minimum security standards for birth and death certificates and records. Creation of these standards is a longstanding goal of state and local government vital statistics administrators. H.R. 10 establishes a national birth-death registration system to prevent terrorists from obtaining false identities, and makes state compliance within three years a condition of eligibility for federal funding.
"All but one of the 9/11 hijackers acquired some form of U.S. identification document, some by fraud…. The federal government should set standards for the issuance of birth certificates…." Report, p. 390.No Display of Social Security Numbers on Driver's Licenses - § 3071.
"In their travels, terrorists use evasive methods, such as … identity fraud." Report, p. 384.Independent Verification of Birth Records for Social Security Accounts- §§ 3072 to 3074 require the Social Security Administration to independently verify birth records used to support social security number applications. § 3075 limits the number of replacement social security cards that can be issued in a year to a single individual.
"The federal government should set standards for the issuance of birth certificates…." Report, p. 390.Expanded Preinspection and Prescreening at Foreign Airports-
§ 3082 is intended to make the nation's borders and ports of entry the last line of defense against terrorist entry rather than the first line of defense. Foreign airports with pre-inspection stations would increase from five to 25. § 3083 expands the number of authorized passenger prescreening programs conducted by foreign airline personnel to 50 foreign airports.
"It is important to note that the hijacker's entries occurred in an environment of "travel facilitation." Staff Report, p. 135Consular Officers and Functions- § 3083 provides for150 additional consular officials, and restricts the use of foreign nationals for nonimmigrant visa screening.
"The further away from our borders that screening occurs, the greater security benefits we gain." Report, p. 384.
"All 19 of the 9/11 hijackers entered the United States on nonimmigrant visas." Staff Report, p. 71.
"…[S]hrinking budgetary resources disproportionately affected the Bureau of Consular Affairs… in the 1990s…. 'The slogan was to do more with less, to the point where we were doing everything with nothing." Staff Report, p. 76.Identification Fraud- § 3085 increases criminal penalties for using, transferring, or possessing false identification documents.
"For terrorists, travel documents are as important as weapons." Report, p. 384.False Citizenship Claims- § 3086 establishes a criminal penalty for knowingly making false claims of citizenship in order to enter or remain in the United States.
International Agreements to Track Terrorist Travel Using Fraudulent Documents- § 3088 requires the President to negotiate and implement international agreements to track and stop international travel by terrorists and other criminals using lost, stolen, or falsified documents.
"The U.S. government cannot meet its own obligations to the American people to prevent the entry of terrorists without a major effort to collaborate with other governments." Report, p. 390.Entry-Exit Data System- § 3090 finds that completing the biometric entry-exit system is essential for protecting the United States against terrorist entry. H.R.10 mandates a status report by the DHS on the expedited development of the entry-exit system within 180 days of enactment.
"The Department of Homeland Security, properly supported by Congress, should complete, as quickly as possible, a biometric entry-exit screening system…. It should be integrated to the system that provides benefits to foreigners seeking to stay in the United States. Linking biometric passports to good data systems and decisionmaking is a fundamental goal." Report, p. 389.Interagency Terrorist Travel Information Sharing- § 3101 requires DHS to establish a system for coordinating and sharing information on terrorist travel with DOS, the National Counterterrorism Center, and other appropriate agencies. § 3102 requires DHS to create a program to evaluate terrorist travel tactics, patterns, trends, and practices and to disseminate the information to appropriate officials in DHS and DOS.
"Information systems able to authenticate travel documents and detect potential terrorist indicators should be used at consulates, at primary border inspection lines, in immigration services offices, and in intelligence and enforcement units." Report, p. 385.Terrorist Travel Training Program- § 3103 requires DHS to evaluate current training to ensure that officials are effectively taught to detect false or fraudulent travel and identification documents, terrorist indicators and travel patterns.
"[B]order inspectors today still do not have basic… operational training to aid them in detecting and preventing terrorist entry…." Staff Report, p. 164.Technology Acquisition Plan- § 3104 requires DHS and DOS to submit a plan within 180 days of enactment for acquisition and deployment of technologies to facilitate detection of false documents and potential terrorist indicators.
"The current patchwork of border screening systems, including several frequent traveler programs, should be consolidated with the US VISIT system to enable the development of an integrated system, which in turn can become part of the wider screening plan we suggest." Report, p. 388.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.