Why We Vet and Inspect Foreign Nationals

By Andrew R. Arthur on August 24, 2018

News reports concerning the discovery of the body of Mollie Tibbetts, a 20-year-old student at the University of Iowa who had gone missing for more than a month, and the arrest of Cristhian Rivera, a 24-year-old Mexican national who is allegedly illegally present in the United States, for her killing have raised more questions than they have answered. Fox News stated that Rivera has been present in the United States for four to seven years after entering illegally, and had worked at an Iowa farm for four. The Des Moines Register revealed that Rivera had given the Brooklyn, Iowa-area farm false information in order to obtain employment, which the Washington Post identified as "a stolen ID". Fox reported that "[a] search of Iowa court records revealed no prior criminal history for Rivera," but admitted that it was not clear whether Rivera had ever been in removal proceedings.

Therefore, at this stage, we do not know where and when Rivera entered the United States, how he came to be in Iowa, whether he has ever come to the attention of the Department of Homeland Security (DHS) before, whether he has lived in or committed any crimes elsewhere in the United States or anywhere else in the world, and how exactly he came to be in possession of the so-called "stolen ID".

Many of the answers to these questions would be clear had Rivera gone through the proper process to apply for a visa to the United States and gone through inspection before entering this country, as is required for a Mexican national seeking entry.

Mexico is not a visa-waiver country. Therefore, in order to enter legally, a Mexican national must comply with the registration requirements set forth in section 221(b) of the Immigration and Nationality Act (INA). A visa applicant must also comply with the application procedures in section 222 of the INA. As the Congressional Research Service (CRS) explains:

Foreign nationals seeking visas must undergo admissibility reviews performed by DOS consular officers abroad. The visa applicant is required to submit his or her photograph and fingerprints, as well as full name (and any other name used or by which he or she has been known), age, gender, and the date and place of birth. Depending on the visa category, certain documents must be certified by the proper government authorities (e.g., birth certificates and marriage licenses). All prospective LPRs must submit to physical and mental examinations, and prospective nonimmigrants also may be required to have physical and mental examinations.

Those visa applicants are then screened against the biographic and biometric Consular Consolidated Database (CCD). According to CRS:

In addition to indicating the outcome of any prior visa application of the alien in the CCD and comments by consular officers, the system links with other databases to flag problems that may have an impact on the issuance of the visa. These databases linked with the CCD include DHS's Automated Biometric Identification System (IDENT) and the Federal Bureau of Investigation (FBI) Integrated Automated Fingerprint Identification System (IAFIS) results, and supporting documents. In addition to performing biometric checks of the fingerprints for all visa applicants, DOS uses facial recognition technology to screen visa applicants against a watchlist of photos of known and suspected terrorists obtained from the Terrorist Screening Center (TSC), as well as the entire gallery of visa applicant photos contained in the CCD.

The CCD also links to the DHS's Traveler Enforcement Compliance System (TECS), a substantial database of law enforcement and border inspection information that enables CBP officers at ports of entry to have access to CCD. A limited number of consular officers have been granted access to DHS's Arrival Departure Information System (ADIS). ADIS tracks foreign nationals' entries into and most exits out of the United States. DOS credits access to ADIS with its ability to identify previously undetected cases of illegal overstays in the United States.

After receiving a visa, an alien seeking admission to the United States must present him or herself for inspection by a U.S. Customs and Border Protection (CBP) officer in accordance with section 235(a)(1) of the INA. Specifically, an applicant for admission must establish that he or she is not inadmissible under any of the grounds set forth in section 212 of the INA, including the criminal grounds in section 212(a)(2).

There are two logical, but related, reasons for the criminal grounds of inadmissibility in section 212(a)(2) of the INA: First, the United States does not want to have individuals who have committed criminal acts free to move within this country. Second, aliens who have committed crimes in the past are, sensibly, more likely to commit crimes in the future, and these grounds of inadmissibility protect the American people from victimization by such criminals.

As the end result of this process, the United States government will have a significant amount of information about the identity and background of an alien lawfully admitted to the United States.

Aliens who have entered illegally, as Rivera is alleged to have done, evade this process. Assuming that he never came to the attention of DHS previously, it would only be after the fact that the department would be able to determine whether he has committed any other criminal offenses, here or abroad.

An oft-heard refrain in the aftermath of the discovery of Mollie Tibbets' body and the charging of Cristhian Rivera for her murder is that aliens commit crimes at a lower rate than native-born citizens. For example, Time published an article with the headline "Mollie Tibbetts' Death Is Fueling Anti-Immigration Rhetoric. But Data Suggest Immigrants Have a Lower Crime Rate". That may be true (and it may not, as my colleague Jessica Vaughan explained to USA Today), but it largely misses the point.

Some proportion of criminal aliens who otherwise would not have been granted visas or who would have been denied admission would not have been able to lawfully enter the United States as result of the screening process described above. Although it has largely been forgotten in the immigration debate in recent years, the immigration laws of the United States exist for very specific reasons, none of which have to do with "anti-immigration rhetoric". Among other reasons, they are intended to protect the American people (both U.S. citizens and aliens lawfully present) from various categories of aliens who may pose a danger, including those with communicable diseases, security risks, and criminals. When an alien bypasses those laws and enters illegally, those protections are ineffective, at least until it is too late.

Moreover, it goes without saying that if an alien enters illegally and commits a crime, it is a crime that would not have been committed had the alien not entered. Many (if not most) crimes are senseless, but such crimes are needless. Aside from the immigration offenses that they have committed (which are not the insignificant offenses that some would assert), most aliens who have entered illegally are probably not otherwise criminals or given to criminality. But those who have committed crimes are.