Hatch Biometric Exit Amendment Falls Short of Current Law

On Monday, the Senate Judiciary Committee adopted an amendment to the Gang of Eight amnesty bill (S.744) that merely begins the process of implementing a biometric exit system—a system already required by law. The amendment, offered by Senator Orrin Hatch (R-UT)(Hatch 6, as amended by Senator Schumer), was intended to quell criticisms that S.744 is weak on border security. However, a closer analysis shows that the amendment is not even as demanding as current law.

The fight to implement an effective, biometric entry-exit system in the U.S. has been a long one. In 1996, Congress passed the first law requiring the government implement an entry-exit system to track aliens as they enter and leave the U.S. (IIRAIRA, Division C of Pub.L. 104–208). At that time, Congress provided that the automated system must:

1) Collect a record of departure for every alien departing the United States and match the records of departure with the record of the alien’s arrival in the United States; and
2) Enable the Attorney General to identify, through on-line searching procedures, lawfully admitted nonimmigrants who remain in the United States beyond the period authorized by the Attorney General. (Sec. 110)

Congress mandated the entry-exit system because it knew the government could not accurately track aliens entering and leaving the United States. The entry-exit system would not only increase national security, but also help enforce the laws against the sizable portion of the illegal population that overstays their visas.

In 2000, Congress passed another law regarding the entry-exit system, this time requiring the system to be “electronic,” and to be implemented at all air, sea, and land ports of entry. (Immigration and Naturalization Service Data Management Improvement Act of 2000, Public Law 106-215).

Again in 2000, when amending the Visa Waiver Program, Congress required a “fully automated entry and exit control system” to record entry and departure information for all aliens participating in the Visa Waiver Program. Congress also required the passports of participants in the Visa Waiver program to be machine-readable. (Visa Waiver Permanent Program Act, Public Law 106-396)

In 2011, after the September 11 terror attacks, Congress once again demanded the government implement an entry-exit system through passage of the PATRIOT Act (Public Law 107-56, October 2001) The intent of Congress was crystal-clear. Section 414 of the PATRIOT Act states:

“In light of the terrorist attacks perpetrated against the United States on September 11, 2001, it is the sense of the Congress that the Attorney General, in consultation with the Secretary of State, should fully implement the integrated entry and exit data system for airports, seaports, and land border ports of entry… with all deliberate speed and as expeditiously as practicable…”

Importantly, as part of the PATRIOT Act, Congress demanded that the entry-exit system be biometric and based on tamper-resistant, machine-readable documents. (Sec. 414) A biometric system requires that an immigration document match the individual presenting it to an immigration official. There are a variety of ways to make a document biometric. Perhaps the most common way is to incorporate digital fingerprints, which can easily be run through computer databases to match records on file. According to DHS’s own website: “Unlike names and dates of birth, which can be changed, biometrics are unique and virtually impossible to forge. Collecting biometrics helps the U.S. government prevent people from using fraudulent documents to enter the country illegally. Collecting biometrics also helps protect your identity in the event your travel documents are lost or stolen.”

In 2002 Congress reiterated its demand for a biometric entry-exit system. It passed legislation requiring that the government issue aliens “only machine-readable, tamper-resistant visas and other travel and entry documents that use biometric identifiers.” It also required that the government install biometric readers and scanners “at all ports of entry of the United States…” (Enhanced Border Security and Visa Entry Reform Act of 2002 (Public Law 107-173, Sec. 303, 8 U.S.C. 1372))

In 2004, Congress again demanded a biometric entry exit system through the passage of the Intelligence Reform and Terrorism Prevention Act of 2004. (Pub. L. 108-458, Title VII, Sec. 7208, Dec. 17, 2004, now 8 U.S.C.S 1365b) That law reads:

“Congress finds that completing a biometric entry and exit data system as expeditiously as possible is an essential investment in efforts to protect the United States by preventing the entry of terrorists.” (8 U.S.C.S 1365b(a))

It also provides that DHS “shall develop a plan to accelerate the full implementation of an automated biometric entry and exit data system.” (8 U.S.C. 1365b(c))

Yet, despite these repeated demands of Congress, the United States government still has not implemented a full biometric entry-exit system. The government has indeed implemented a biometric entry system and is taking digital fingerprints of aliens who enter the U.S. But to-date – 17 years after the first law passed by Congress – the U.S. still has no biometric exit system. So while the government has a reasonable idea of who enters the U.S., law enforcement officials have no idea if the aliens ever leave the country.

Unfortunately, S.744 does not require a biometric entry-exit system. Section 3 of the bill merely requires that before DHS can grant RPI status to illegal aliens, DHS must “certify” that DHS “is using an electronic exit system at air and sea ports of entry that operates by collecting machine-readable visa or passport information from air and vessel operators.” (p.12) Thus, as drafted, the bill falls short of current law. It does not require a biometric system and it only requires implementation at air and sea ports of entry, not land ports of entry, as required by current law.

The amendment offered by Senator Orrin Hatch yesterday was merely a token provision to improve the original language in S.744. The amendment maintains the language in the original bill and, in addition to that, provides that DHS shall establish, within two years of enactment, a mandatory biometric exit data system at the 10 airports with the highest volume of international travelers. Within six years, the amendment requires DHS establish a biometric exit system at the 30 busiest international airports. Finally, no later than six years after enactment, DHS must merely submit a plan to Congress “for the expansion of the biometric exit system to “major” sea and land entry and exit points within the U.S. Thus, the Hatch amendment, like S.744, only requires a fraction of what is already required by current law.

So far, the Gang of Eight – with the exception of Senator Rubio – has steadfastly opposed the full implementation of a biometric entry-exit system. Last week, Senator Schumer complained that implementing a biometric entry-exit system was ineffective and could delay the amnesty program indefinitely.

However, during the debate over the Hatch amendment, Senator Jeff Sessions (R-AL) offered proof that Senator Schumer was wrong. Sessions pointed to a 2009 DHS report (which was kept secret from most members of Congress) that showed that a biometric exit program would work effectively and was projected to cost much less than airlines –who have opposed the biometric system – have suggested. Specifically, the 2009 report analyzed the results of a pilot program to implement the biometric exit program conducted at the Detroit and Atlanta international airports from May 28, 2009 to July 2, 2009. It found that of more than 500,000 travelers who passed through the pilot program airports, about 30,000 aliens were biometrically processed in accordance with the law. In Detroit, officials identified 44 aliens on terror watch lists and 60 suspected overstayers. In Atlanta, officials identified 131 aliens on terror watch lists and 90 suspected overstayers. (Report at iii.)

Importantly, the pilot program showed “no impact” at Detroit or “no significant impact” to the average boarding time per passenger. Depending on the type of fingerprint scanner, the average processing time took approximately 1 minute. (Report at iv.)

After a long debate over the biometric exit system Monday, the Hatch amendment was adopted 13-5. However, the debate over a biometric entry-exit system will no doubt continue as the Gang of Eight Amnesty bill heads to the Senate floor. Gang of Eight Member Senator Marco Rubio (R-FL) has voiced support for a biometric entry-exit program and indicated he will offer an amendment on the floor to ensure it is implemented. It remains to be seen whether Senator Rubio will be satisfied with the watered-down Hatch amendment.