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INS Reforms Must Be Part of National ID Card
by Jonathan D. Montag

Recent news reports indicate growing broad-based enthusiasm for a national identification card that will link to government databases. The chief advocate of such a card apparently, is Larry Ellison of Oracle Corporation, whose company is a leader in database software. The theory behind the card is that those who have them will present them for scanning, when, for example, they are boarding an airplane, and thus avoid being searched. Presumably the ID card will link to all of law enforcement's data on a person. So, if a person turns out to have had a past encounter with law enforcement, one would expect the card would bring heightened scrutiny from airline security. With the incredibly large numbers of people who have had encounters with law enforcement, it is not clear whether referring to a national database would increase or decrease the number of thorough searches. Nonetheless, this is the theory.

An important database will inevitably be INS data on immigration status. One wonders what the impact of widespread access to this data base will be. A scan of the card will give a snapshot of a person's status, and that snapshot may not be accurate or easily comprehensible. With the unconscionable delays in Immigration and Naturalization Service processing, what exactly will a database say about a person.s immigration or citizenship status? The problems are manifest in any area where the INS is involved. Suppose, for example, a visa overstay files an adjustment based on marriage to a United States citizen. He has not been afforded permanent residence yet and the wait again could be years? What will the database say? What will an airport security agent make of a database entry that the person overstayed a visa, has applied for a benefit, but it is pending? My guess is that the security agent will subject the individual to a great deal of hassle. This assumes of course that the database is accurate and properly updated by the INS. If the database informs the screener that the alien.s file is in the records center in Missouri, an all-to-often response when I ask about an alien I represent, this answer will probably not facilitate getting on a plane. Suppose a businessman is changing employers or a tourist is extending a visa and the papers are long-pending. What will the database say? At the California Service Center it takes longer to adjudicate a B-2 extension than the length of time for which an alien can extend the B-2 visa. In other words, the visa extension is expired when it is granted. What will the database say about this? How will an airport security officer interpret the data? How will the database handle aliens who have removal cases pending for years or asylees and refugees who are waiting years to adjust status? Will they be subject to lesser or greater scrutiny when they flash their cards?

These concerns relate to persons who are in the INS database. What about those who are not. I was born in Brooklyn. Am I in the INS database? Probably not. Does that make me more or less likely to be searched further? If the identification card is supposed to access the immigration status of United States citizens, where is going to get the information? The INS does not keep a record of all citizens. While the minority of citizens with United States passports will be on a State Department database, what about the majority without passports? Will the government require all citizens to obtain Certificates of Citizenship on Form N-600? As it is now, N-600's filed with the INS take years to adjudicate. If 250 million Americans must obtain proof of citizenship and it costs $160 to adjudicate each one (assuming the $160 is an accurate assessment of the cost to adjudicate an N-600), the cost to society will be huge, more than $40 billion. That matches the initial extra cost allotted by Congress for recovering from the September 11 attack and fighting the war on terrorism. How will all these millions of applications affect the wait list? What will happen to a person whose case is still pending? Will he be more or less likely to be considered suspicious? What will the databases report about pending derivative cases? A person who ultimately will turn out not to be an alien at all, but a United States citizen from birth, may face all kinds of heightened scrutiny simply because of bureaucratic slowness.

It is facile to assume that people can be easily broken into two groups - those that are legal and belong in the United States and those that are illegal and do not. There are too many variations built into the immigration laws and into the natural changes that occur during our short lifespans on earth - births, deaths, marriages, aging out, becoming current - for this dichotomy to be fair or meaningful. The fact that aliens are forced to stay in the country during transitions and gaps in status because of the three and ten year bars, making 245(i) legislation a necessity rather than a luxury, complicates matters further. A ground of inadmissibility that was intended to discourage being out of status and/or illegal presence, instead encourages it. Similarly, the long periods of inadmissability for those who are deported and long periods and uncertain standards for adjudicating requests for permission to return on Form I-212, also work to encourage illegal presence rather than discourage it.

If this country is serious about using INS databases to reduce the risk of terrorist attack, it will first have to address the problems at the INS and in the immigration laws. When aliens can easily effect status changes, when people can swiftly have their citizenship statuses verified and documented, and when the law encourages obtaining and maintaining legal presence rather than discouraging it, then perhaps the INS databases will help get people onto planes quicker and will help make America safer. Until then, making these databases accessible will most likely cause more delays, not fewer delays, and will create unnecessary hardships to thousands, if not millions, of innocent people, and will force more and more foreigners underground when the goal is to bring foreigners into the open.

About The Author

Jonathan D. Montag has been practicing Immigration Law in San Diego since 1994. He works at the Law Offices of Jonathan D. Montag in San Diego, California. Mr. Montag graduated the University of San Diego School of Law in 1994. Mr. Montag was the Vice Chapter Chair of the San Diego chapter of the American Immigration Lawyers Association in 1999-1200 and edited AILA's 12 Annual California Chapters Conference Handbook in which his article, "Detention and Bond," an overview of current immigration detention and bond law and policy, appeared. He lectured at the 2001 AILA Convention in Boston, Massachusetts, on the subject of aggravated felonies and taught at the State Bar of California.s Winter 2001 Section Education Institute on the subject of Immigration Consequences of Crime.

Jonathan D. Montag
Law Offices of Jonathan D. Montag
P.O. Box 124801
San Diego, California 92112