Politics & Policy

‘Enforcement First’ Doesn’t Stop at the Border

US VISIT needs fixing -- an opportunity for McCain.

Sen. John McCain, the Republican presidential hopeful, says he has learned his lesson on immigration. His vision of a “comprehensive reform” in which at least some illegal aliens would be rewarded with legal status must, he now knows, await major deposits in the credibility bank by a government Americans do not trust to enforce the law. He says it’s time to get serious, and that the way to do that is “Border Enforcement First.”

Unfortunately, that’s not very serious.

Long before September 11, 2001, the government well knew that smuggling across the border from Mexico or Canada is not the preferred route for millions of illegals. Instead, these aliens first enter by simply walking through a port of entry inside our country thanks to one of the various kinds of American government-issued visas — visas whose terms those aliens then overstay or otherwise violate. Indeed, some reputable studies put the visa-overstay figure at upwards of 40 percent of the illegal-alien population.

That aside, we now know that all the 9/11 terrorists entered with visas. So have several other foreign terrorists, Ramzi Yousef and Sheik Omar Abdel Rahman of 1993 World Trade Center bombing infamy being but two examples.

After 9/11, Congress and the executive branch finally decided it was time to make better use of electronic technology to track who enters and departs — or, more to the point, fails to depart. “US VISIT,” the shorthand name for the United States Visitor and Immigrant Status Indicator Technology system, is the post-9/11 computerized biometric database established toward that end.

The entry part of US VISIT began to come on line, in fits and starts, circa 2004. It tracks the entrance of many, though not all, foreign nationals who enter the United States through ports of entry. (Most Canadians and Mexicans, diplomats, and certain others are exempt.)

But US VISIT’s all important exit part has never been implemented.

The system basically works this way. When aliens present themselves at a port of entry, an inspector from U.S. Customs and Border Protection (or “CBP,” an agency of the Department of Homeland Security) queries each person’s identity, documents, and fingerprints in the computerized lookout system that cross-references numerous law-enforcement, terrorism, and security databases. The document information, photographs, and fingerprints are digitized and entered into the US VISIT database along with a record of the alien’s entry.

Eventually, the entry tracking capabilities of US VISIT evolved to the point where things work fairly well. It took several years to get there, equipment, policy, funding, and training issues being what they were. The system initially utilized only a two-fingerprint process. It took until 2007 for DHS to begin shifting to a full ten-fingerprint system to match the FBI’s database. That transition is still in progress and the results are yet to be fully evaluated.

Nevertheless, as noted above, the departure control half of US VISIT was never implemented (beyond a few pilot test sites at seaports). Departure control is a critical aspect of the system. It is the part of the equation that would give us a firm read on which aliens have overstayed their visas and thus should not be in our country.

To put it mildly, efforts to establish departure tracking have been lackluster. Although the 2004 Intelligence Reform Act ostensibly required departure control, it provided no deadline for implementation. Frustrated by the predictable inaction and mindful of the public mood, Congress finally provided an impetus: It linked implementation of departure control by June 2009 to the Bush administration’s controversial request to expand the Visa Waiver program.

The proposed expansion involves adding some former Eastern bloc countries and other American allies to the list of 27 nations whose citizens require only their passports, not American-issued visas, to enter the U.S. Leaving aside questions about its wisdom, there is no doubt the administration sees it as a significant goal. But it is transparently trying to achieve it by doing as little as it thinks it can get away with on departure tracking.

Thus did DHS propose regulations in April that would require this function to be carried out by commercial airlines and cruise lines. These transportation companies would be compelled to collect biometric identifiers — basically digital fingerprints and photographs — from foreign travelers as they leave the United States. That is, government’s answer to making the departure half of US VISIT work is: Require private industry to do it.

Naturally, industry is crying foul. Feeling the strain of sky-rocketing fuel prices, airline officials say these new mandates would add upwards of $2 billion to their costs over the next decade, according to the Washington Post. Plus, transportation companies lack the enforcement power and expertise to make such a system work effectively. Quite understandably, they argue that this is a governmental responsibility, not something private industry should be doing. Passing the buck, DHS Secretary Michael Chertoff counters that if US VISIT departure control does not come into being by the June 2009 deadline it will be because the airline industry “killed it.”

This promises to be a major private/public battle. Meantime, failure to implement US VISIT departure control has left our border and immigration security apparatus significantly vulnerable. In the four years we have been bereft of exit data, the entry tracking system of US VISIT has amassed a huge amount of information concerning foreign nationals who have entered the U.S. The government knows who has come here. It knows who should have left and when. But it doesn’t know if those persons actually left or if they’re still here. Because of this gaping hole in US VISIT, that vital intelligence component is static.

The obvious question is: Does DHS really want the exit system to work? We do not, after all, rely on private industry to collect the entrance data. Why not do what is patently necessary? Incorporate CBP inspectors into the exit process, electronically account for aliens who have left, and thus amass hard, irrefutable data about who has failed to leave when required by the limited-duration terms of tourist-, student- and other visas.

Perhaps because once overstay violators wereidentified in black-and-white, (a) Americans would have a concrete, easily understood metric of how many illegal aliens are actually in the United States and, thus, could judge for themselves how effective government’s enforcement efforts actually are; (b) DHS would have to do something about it.

Assuming the 40 percent overstay number remains fairly constant, real departure control would result in a very large number of visa violator leads for the DHS agencies responsible for enforcing the immigration laws — for tracking down and deporting aliens not authorized to be in the United States.

Plainly stated, DHS does not have the resources for the job. The best it could do would be a triage approach in which countless overstay leads would be vetted through available intelligence, law-enforcement, and security databases. This would prioritize suspects for investigative follow-up (by Immigration and Customs Enforcement agents) based on the threats they posed to commit crimes or endanger national security. But even that kind of rudimentary process — going after only the worst of the lot — would require establishing an equipment, manpower and policy infrastructure that is very far from existing right now.

Moreover, if the American people were given hard data about the continuing, unaddressed challenge of visa overstays, they would demand some obvious remedies, such as a gross reduction in the number of visas issued (at least on a class-by-class basis) and an end to talk about expanding the Visa Waiver program. The point of requiring visas is for government to fulfill its solemn duty to control who and what enters the United States. Until government proves it is taking that responsibility seriously, why should the public — already addled by the strain runaway illegal immigration places on local law enforcement, education, health and other public services — countenance policies that can only make the problem worse?

Besieged by exorbitant costs that result from failed government energy policies, the transportation industry cannot in addition be made the scapegoat for government’s continuing failure to deal with illegal immigration. US VISIT has to be fixed, and fixing its exit component is a government responsibility. Whether the government wants the job or not.

Border enforcement is crucial. But even the most perfect, impenetrable fences and patrol forces imaginable would have absolutely no effect on nearly half the influx of illegal aliens. If Sen. McCain really has learned his lesson, he could help his chances enormously by committing to fix US VISIT. Credibly and immediately.

Bill West, a retired INS/ICE Supervisory Special Agent, conducted and managed organized crime and national security investigations. He is now a counter-terrorism and security consultant. Andrew C. McCarthy is National Review’s Legal-Affairs Editor and the author of Willful Blindness: A Memoir of the Jihad.

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