Widening Existing Vulnerabilities

By Janice Kephart on July 19, 2013


(Ms. Kephart recently returned from a Special Counsel position with the Senate Judiciary Committee, where she advised and supported Senator Jeff Sessions' (R-Ala.) work during the committee's consideration of immigration legislation.)

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The Senate-passed S.744 has three distinct, mandatory airport exit requirements, only two of which involve seaports. None solve the air carrier problem, only one provides funding, and all conflict with current law.

The first exit requirement is in Sec. 3 of S.744, listed as one of the "triggers" for adjustment of the amnesty beneficiaries from their registered provisional immigrant status to lawful permanent residence. It calls for a biographic-only exit system that codifies current policy and practice. It is overly broad and provides no funding. Sen. Jeff Sessions (R-Ala.) sought to amend this trigger during Judiciary Committee markup in May, requiring instead implementation of current law requiring a biometric exit prior to adjusting RPI status for applicants, pursuant to the Intelligence Reform Act of 2004 and the Visa Waiver Program Act of 2007. This amendment failed, 6-12.

The other two S.744 biometric airport requirements are poorly written, show a lack of understanding and knowledge of the history of the issue and current statutory requirements, and are overly prescriptive and confusing.

The first, Sec. 3303, includes solid requirements for sharing biographic exit information taken from travel documents. This section was amended during markup by Sen. Orrin Hatch (R-Utah). This amendment rolls back current law by deleting implementation of a biometric exit system at sea and land ports at any point, and limits airport exit deployment. The effect of the Hatch amendment is to slow down implementation by only requiring 30 total airports after five years; sea and land exit solutions are relegated to GAO reports. To clarify, this new language does not strike current law, but essentially supersedes the three biometric exit statutes that currently exist by failing to reference these outstanding legal requirements. Like Sec. 3, this section also does not provide funding.

The second air/sea exit requirement appears to be in Sec. 3304 and remains "as is" from the bill's original drafting. Sec. 3304 is useful because its requirements go into effect upon enactment of the bill, it provides funding, and it sets up a framework for collecting departure information from aliens that is useful. This section remains somewhat incognito in the bill, as it uses undefined terms that are not used elsewhere in S.744, and appears to have drafting mistakes that allowed two references to "biometric manifest information" to remain in the language, while the rest of the section and its title uses the obtuse phrasing "identity theft resistant manifest information". In addition, multiple references to "providing information upon departure for US-VISIT processing" appears a strong indication that the exit requirement here is biometric, since US-VISIT is the only biometric program at DHS.

My analysis is that for several reasons pertaining to drafting and substance, the intent of this section is to mask a biometric exit requirement that places stringent requirements on air carriers. Sec. 3304 includes penalties on carriers that do not comply that are, at best, unworkable and unrealistic. Air carriers have already refused to comply with the 2007 Visa Waiver requirement that places departure collection solely on airlines. This section will result in an outcry from the industry if no action is taken to remove the air carrier burden and return it to Customs and Border Protection, which now owns implementation requirements per the 2013 Homeland Security Appropriations Act.

There are two ways to analyze the relationship between Sections 3303 and 3304. One is to read the original Sec. 3303, requiring a mandatory biographic exit system for collecting machine-readable visas, passports, and other travel documents as the first step to Sec. 3304's mandatory air/sea "identity theft resistant manifest information" requirement. However, since the biographic requirements of Sec. 3303 have two years from enactment to take effect, and biometric requirements of Sec. 3304 must be implemented upon enactment, this analysis does not make sense.

It also may be that different offices or interest groups drafted these requirements, and once compiled, no sponsor's office checked to make sure the sections flowed appropriately and built upon each other in a logical manner or used consistent, defined language. Another possibility is that Sections 3303 and 3304 contradict each other, with Sec. 3303 requiring only a biographic exit and Sec. 3304 requiring what appears to be a biometric exit, creating parallel and contradictory requirements. The sections do not refer to each other, use consistent language, or have consistent deadlines. The biometric deadline is upon enactment, while the biographic requirement is two years after enactment. The timeline should be reversed or concurrent, indicating again that these two sections contradict each other.

The bottom line is that all three mandatory exit requirements in the bill present opportunities and drawbacks for amendments or new bills. Most certainly, if S.744 goes to conference, these sections must be made consistent, must be defined, and must all be funded, or the current eight statutes demanding exit now will only be infused with further confusion and no clear path forward. Moreover, the chance for a biometric exit solution will be essentially dead.