[Senate Report 105-197]
[From the U.S. Government Publishing Office]
Calendar No. 342
105th Congress Report
SENATE
2d Session 105-197
_______________________________________________________________________
THE BORDER IMPROVEMENT AND IMMIGRATION ACT OF 1998
_______
June 1, 1998.--Ordered to be printed
_______________________________________________________________________
Mr. Hatch, from the Committee on the Judiciary, submitted the following
R E P O R T
together with
ADDITIONAL VIEWS
[To accompany S. 1360]
The Committee on the Judiciary, to which was referred the
bill (S. 1360) to amend the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 to clarify and improve the
requirements for the development of an automated entry-exit
control system and to enhance and improve land border control
and enforcement, having considered the same, reports favorably
thereon, with an amendment in the nature of a substitute, and
recommends that the bill, as amended, do pass.
CONTENTS
Page
I. Purpose..........................................................5
II. Legislative history..............................................5
III. Discussion......................................................11
IV. Vote of the committee...........................................18
V. Section-by-section analysis.....................................18
VI. Cost estimate...................................................21
VII. Regulatory impact statement.....................................23
VIII.Additional views of Senator Leahy...............................23
IX. Changes in existing law.........................................25
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Border Improvement and Immigration
Act of 1998''.
SEC. 2. AMENDMENT OF THE ILLEGAL IMMIGRATION REFORM AND IMMIGRANT
RESPONSIBILITY ACT OF 1996.
(a) In General.--Section 110(a) of the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996 (8 U.S.C. 1221 note) is
amended to read as follows:
``(a) System.--
``(1) In general.--Subject to paragraph (2), not later than 2
years after the date of enactment of this Act, the Attorney
General shall develop an automated entry and exit control
system that will--
``(A) collect a record of departure for every alien
departing the United States and match the record of
departure with the record of the alien's arrival in the
United States; and
``(B) 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.
``(2) Exception.--The system under paragraph (1) shall not
collect a record of arrival or departure--
``(A) at a land border or seaport of the United
States for any alien; or
``(B) for any alien for whom the documentary
requirements in section 212(a)(7)(B) of the Immigration
and Nationality Act have been waived by the Attorney
General and the Secretary of State under section
212(d)(4)(B) of the Immigration and Nationality Act.''.
(b) Effective Date.--The amendment made by subsection (a) shall
take effect as if included in the enactment of the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 (division C of Public
Law 104-208; 110 Stat. 3009-546).
SEC. 3. REPORT ON AUTOMATED ENTRY-EXIT CONTROL SYSTEM.
(a) Requirement.--Not later than 2 years after the date of
enactment of this Act, the Attorney General shall submit a report to
the Committees on the Judiciary of the Senate and the House of
Representatives on the feasibility of developing and implementing an
automated entry-exit control system that would collect a record of
departure for every alien departing the United States and match the
record of departure with the record of the alien's arrival in the
United States, including departures and arrivals at the land borders
and seaports of the United States.
(b) Contents of Report.--Such report shall--
(1) assess the costs and feasibility of various means of
operating such an automated entry-exit control system,
including exploring--
(A) how, if the automated entry-exit control system
were limited to certain aliens arriving at airports,
departure records of those aliens could be collected
when they depart through a land border or seaport; and
(B) the feasibility of the Attorney General, in
consultation with the Secretary of State, negotiating
reciprocal agreements with the governments of
contiguous countries to collect such information on
behalf of the United States and share it in an
acceptable automated format;
(2) consider the various means of developing such a system,
including the use of pilot projects if appropriate, and assess
which means would be most appropriate in which geographical
regions;
(3) evaluate how such a system could be implemented without
increasing border traffic congestion and border crossing delays
and, if any such system would increase border crossing delays,
evaluate to what extent such congestion or delays would
increase; and
(4) estimate the length of time that would be required for
any such system to be developed and implemented.
SEC. 4. ANNUAL REPORTS ON ENTRY-EXIT CONTROL AND USE OF ENTRY-EXIT
CONTROL DATA.
(a) Annual Reports on Implementation of Entry-Exit Control at
Airports.--Not later than 30 days after the end of each fiscal year
until the fiscal year in which Attorney General certifies to Congress
that the entry-exit control system required by section 110(a) of the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996, as
amended by section 2 of this Act, has been developed, the Attorney
General shall submit to the Committees on the Judiciary of the Senate
and the House of Representatives a report that--
(1) provides an accurate assessment of the status of the
development of the entry-exit control system;
(2) includes a specific schedule for the development of the
entry-exit control system that the Attorney General anticipates
will be met; and
(3) includes a detailed estimate of the funding, if any,
needed for the development of the entry-exit control system.
(b) Annual Reports on Visa Overstays Identified Through the Entry-
Exit Control System.--Not later than June 30 of each year, the Attorney
General shall submit to the Committees on the Judiciary of the House of
Representatives and the Senate a report that sets forth--
(1) the number of arrival records of aliens and the number of
departure records of aliens that were collected during the
preceding fiscal year under the entry-exit control system under
section 110(a) of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, as so amended, with a separate
accounting of such numbers by country of nationality;
(2) the number of departure records of aliens that were
successfully matched to records of such aliens' prior arrival
in the United States, with a separateaccounting of such numbers
by country of nationality and by classification as immigrant or
nonimmigrant; and
(3) the number of aliens who arrived as nonimmigrants, or as
visitors under the visa waiver program under section 217 of the
Immigration and Nationality Act, for whom no matching departure
record has been obtained through the system, or through other
means, as of the end of such aliens' authorized period of stay,
with an accounting by country of nationality and approximate
date of arrival in the United States.
(c) Incorporation into Other Databases.--Information regarding aliens
who have remained in the United States beyond their authorized period
of stay that is identified through the system referred to in subsection
(a) shall be integrated into appropriate databases of the Immigration
and Naturalization Service and the Department of State, including those
used at ports-of-entry and at consular offices.
SEC. 5. LIMITATION ON CERTAIN BORDER CROSSING-RELATED VISA FEES.
(a) Limitation.--
(1) In general.--Notwithstanding any other provision of law,
the Secretary of State may not charge a fee in excess of the
following amounts for the processing of any application for the
issuance of a visa under section 101(a)(15)(B) of the
Immigration and Nationality Act if the appropriate consular
officer has reason to believe that the visa will be used only
for travel in the United States within 25 miles of the
international border between the United States and Mexico and
for a period of less than 72 hours:
(i) In the case of any alien 18 years of age or
older, $45.
(ii) In the case of any alien under 18 years of age,
zero.
(2) Period of validity of visas for certain minor children.--
If a consular officer has reason to believe that a visa issued
under section 101(a)(15)(B) of the Immigration and Nationality
Act to a child under 18 years of age will be used only for
travel in the United States within 25 miles of the
international border between the United States and Mexico for a
period of less than 72 hours, then the visa shall be issued to
expire on the date on which the child attains the age of 18.
(b) Delay in Border Crossing Restrictions.--Section 104(b)(2) of the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996 is
amended by striking ``3 years'' and inserting ``4 years''.
(c) Processing in Mexican Border Cities.--The Secretary of State
shall continue until at least October 1, 2000, to process applications
for visas under section 101(a)(15)(B) of the Immigration and
Nationality Act at the following cities in Mexico located near the
international border with the United States: Nogales, Nuevo Laredo,
Ciudad Acuna, Piedras Negras, Agua Prieta, and Reynosa.
SEC. 6. AUTHORIZATIONS OF APPROPRIATIONS FOR BORDER CONTROL AND
ENFORCEMENT ACTIVITIES OF THE IMMIGRATION AND
NATURALIZATION SERVICE.
(a) In General.--
(1) INS.--In order to enhance enforcement and inspection
resources on the land borders of the United States, enhance
investigative resources for anticorruption efforts and efforts
against drug smuggling and money-laundering organizations,
process cargo, reduce commercial and passenger traffic waiting
times, and open all primary lanes during peak hours at major
land border ports of entry on the Southwest and Northern land
borders of the United States, in addition to any other amounts
appropriated, there are authorized to be appropriated
forsalaries, expenses, and equipment for the Immigration and
Naturalization Service for purposes of carrying out this section--
(A) $113,604,000 for fiscal year 1999;
(B) $121,064,000 for fiscal year 2000; and
(C) such sums as may be necessary in each fiscal year
thereafter.
(b) Fiscal Year 1999.--
(1) INS.--Of the amounts authorized to be appropriated under
subsection (a)(2)(A) for fiscal year 1999 for the Immigration
and Naturalization Service, $15,090,000 shall be available
until expended for acquisition and other expenses associated
with implementation and full deployment of narcotics
enforcement and cargo processing technology along the land
borders of the United States, including--
(A) $11,000,000 for 5 mobile truck x-rays with
transmission and backscatter imaging to be distributed
to border patrol checkpoints;
(B) $200,000 for 10 ultrasonic container inspection
units to be distributed to border patrol checkpoints;
(C) $240,000 for 10 Portable Treasury Enforcement
Communications System (TECS) terminals to be
distributed to border patrol checkpoints;
(D) $1,000,000 for 20 remote watch surveillance
camera systems to be distributed to border patrol
checkpoints;
(E) $180,000 for 36 AM radio ``Welcome to the United
States'' stations located at permanent border patrol
checkpoints;
(F) $875,000 for 36 spotter camera systems located at
permanent border patrol checkpoints; and
(G) $1,600,000 for 40 narcotics vapor and particle
detectors to be distributed to border patrol
checkpoints.
(c) Fiscal Year 2000 and Thereafter.--
(1) INS.--Of the amounts authorized to be appropriated under
this section for the Immigration and Naturalization Service for
fiscal year 2000 and each fiscal year thereafter, $1,509,000
shall be for the maintenance and support of the equipment and
training of personnel to maintain and support the equipment
described in subsection (b)(1), based on an estimate of 10
percent of the cost of such equipment.
(d) New Technologies; Use of Funds.--
(1) In general.--The Attorney General may use the amounts
authorized to be appropriated for equipment under this section
for equipment other than the equipment specified in this
section if such other equipment--
(A)(i) is technologically superior to the equipment
specified; and
(ii) will achieve at least the same results at a cost
that is the same or less than the equipment specified;
or
(B) can be obtained at a lower cost than the
equipment authorized.
(2) Transfer of funds.--Notwithstanding any other provision
of this section, the Attorney General may reallocate an amount
not to exceed 10 percent of the amount specified for equipment
specified in this section.
(e) Peak Hours and Investigative Resource Enhancement.--
(1) INS.--Of the amounts authorized to be appropriated under
this section for fiscal years 1999 and 2000, $98,514,000 in
fiscal year 1999 and $119,555,000 for fiscal year 2000 shall be
for--
(A) a net increase of 535 inspectors for the
Southwest land border and 375 inspectors for
theNorthern land border, in order to open all primary lanes on the
Southwest and Northern borders during peak hours and enhance
investigative resources;
(B) a net increase of 100 inspectors and canine
enforcement officers for border patrol checkpoints;
(C) 100 canine enforcement vehicles to be used by the
Border Patrol for inspection and enforcement, and to
reduce waiting times, at the land borders of the United
States;
(D) a net increase of 40 intelligence analysts and
additional resources to be distributed among border
patrol sectors that have jurisdiction over major
metropolitan drug or narcotics distribution and
transportation centers for intensification of efforts
against drug smuggling and money-laundering
organizations;
(E) a net increase of 68 positions and additional
resources to the Office of the Inspector General of the
Department of Justice to enhance investigative
resources for anticorruption efforts; and
(F) the costs incurred as a result of the increase in
personnel hired pursuant to this section.
SEC. 7. SENSE OF THE SENATE CONCERNING AUTHORIZATION OF APPROPRIATIONS
FOR BORDER CONTROL AND ENFORCEMENT ACTIVITIES OF
THE UNITED STATES CUSTOMS SERVICE.
Given that the Customs Service is cross-designated to enforce
immigration laws and given the important border control role played by
the Customs Service, it is the sense of the Senate that authorization
for appropriations should be granted to the Customs Service similar to
those granted to the Immigration and Naturalization Service under
section 6.
I. PURPOSE
S. 1360 addresses a number of border-related immigration
issues. The bill is designed to improve the flow of trade,
traffic, commerce, and tourism across U.S. borders, and to
ensure adequate staffing and resources for the detection and
deterrence of illegal activity at those borders.
First, S. 1360 addresses the potentially grave consequences
that could result, particularly at the land borders, if section
110 of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA), Public Law 104-208, is not
modified. The requirement in section 110 that the INS establish
an automated entry-exit control system to track the arrival and
departure of ``every alien'' entering and leaving the United
States would be amended so that it only applies at airports,
where automated entry-exit control currently is feasible. The
requirement as to land borders and seaports came about only as
a result of language that appeared for the first time in the
Conference Report to IIRIRA, and more information is needed
before Congress can make a well-informed judgment as to where
and when any other, more expansive automated entry-exit control
requirements should be put into place. S. 1360 accordingly
requires the Attorney General to issue within 2 years a
detailed feasibility report to Congress concerning the
development and implementation of an entry-exit control system
covering all ports of entry including land borders and
seaports. Separately required are reports on data collected
through the entry-exit control system.
Second, the legislation includes several provisions added
in Committee to address some practical problems currently
arising at the Southern land border with the implementation of
the new biometric border crossing cards, also called ``laser
visas'', that were mandated by section 104 of IIRIRA.
Finally, S. 1360 authorizes additional inspectors, new
technology, and other resources for the purpose of facilitating
and improving border inspections and border control activities
of the Immigration and Naturalization Service.
II. LEGISLATIVE HISTORY
The Illegal Immigration Reform and Immigrant Responsibility
Act of 1996 (IIRIRA), Public Law 104-208, was one of the
largest and most comprehensive pieces of legislation enacted by
the 104th Congress. IIRIRA contains almost 200 sections
covering a vast range of immigration topics.1 In
Committee, it took six days of mark up for the Committee to
complete consideration of the legislation. Even more time was
consumed on the floor, and then also in conference, before
IIRIRA became law in its final form.
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\1\ To cite just a few, IIRIRA included enhanced penalties for
document fraud and alien smuggling, increased authority for immigration
inspectors, increased penalties for visa overstayers, procedures to
streamline the deportation process for criminal aliens, welfare reform
provisions, and many others. Given the complexity of the legislation
and some unintended consequences that resulted from some parts of it,
it is not surprising that several provisions of IIRIRA have already
been modified by the 105th Congress.
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Section 110 is one small piece of that legislation. It
provides that, by September 30, 1998, the Attorney General must
develop an automated entry-exit control system that will enable
the Attorney General to track the arrival and departure of
``every alien'' entering and leaving the United States. Because
the final version of section 110 uses the term ``every alien'',
it requires the Attorney General to develop a system that would
apply at every port of entry into the United States. The
section thus requires the establishment of an automated entry-
exit control system that would operate not only at airports,
where a paper-based entry-exit control system has been in
effect but has repeatedly failed to produce usable data, but
also at land borders and seaports, where its operation is
entirely infeasible at this point and could effectively close
the borders.
Significantly, the term ``every alien'' was added only in
conference, and its implications were not fully understood or
debated. Neither of the precursors to section 110 that appeared
in the House and Senate bills would have required the
establishment of entry- exit control systems at the land
borders or seaports. The House bill contained a provision that
would only have established pilot projects to collect entry and
departure records at at least three of the five airports with
the heaviest volume of traffic from foreign territories. See
section 113, H.R. 2202, as passed by the House. The Senate bill
contained a general provision that would have required the
Attorney General to develop an automated entry-exit control
system, but that would not have required the system to cover
land borders or seaports. See section 174, H.R. 2202, as
amended and passed by the Senate.
Shortly after IIRIRA's enactment, the potential
implications of section 110's use of the term ``every alien''
became clearer and began to raise serious concerns among
potentially affected parties. On December 16, 1996, the
Canadian Ambassador wrote to the then chairs of the Senate and
House Immigration Subcommittees, Senator Alan Simpson and
Congressman Lamar Smith, seeking ``confirm[ation] that Congress
did not intend to make Canadians subject to [section 110].''
The Ambassador particularly noted that ``such [an]
interpretation would have a very negative impact on cross
border mobility at high volume border crossings such as the
Rainbow bridge in Niagara Falls or the Detroit-Windsor Tunnel''
and that longstanding policies have not required any special
documentation for Canadians entering the United States. The
Ambassador wrote that ``[staff had] indicated that Congress did
not intend to require the issuance of documentation and the
control of departure for the millions of Canadians who have,
since well before 1986, traditionally enjoyed the privilege of
a summary inspection'' and requested the chairmen to confirm
this understanding. The then-chairmen responded by a brief
letter dated December 18, 1996, which stated that staff ``were
accurate in their description of our intent'' and stated that
the chairmen did not intend to impose new documentary
requirements on Canadians.
The Immigration and Naturalization Service and the
Department of State also became concerned, following passage of
IIRIRA, about the feasibility and implications of the final
language of section 110. However, the Department of Justice
determined that, regardless of congressional intent, the
Attorney General would be required by the statutory text to
apply section 110 at all ports of entry, including land borders
and seaports. Given concerns about the feasibility of
implementing section 110 as written, the substantial disruption
attempting to do so would cause, and the sensitive diplomatic
issues involved, the Departments of Justice and State concurred
in officially requesting that Congress amend section 110. In
proposed technical corrections to IIRIRA submitted to Congress
in July, 1997, they specifically recommended that section 110
be limited to require automated entry-exit control only at
airports and that there instead be a 2-year feasibility report
on establishing equivalent entry-exit control at land borders
and seaports.
Concerned businesses, individuals and State and local
governments also began to voice their concerns about the
implementation of section 110. In order to consider these
issues and proposed changes to the law, two hearings were held
in the Judiciary Committee, both in the Subcommittee on
Immigration, to examine section 110's possible negative
consequences.
On October 14, 1997, the chairman of the Subcommittee on
Immigration, Senator Spencer Abraham, convened a field hearing
in Detroit, MI, at which testimony was heard concerning the
traffic congestion and delays that would result from the
implementation of section 110 as written. Testimony at the
hearing was presented by Congressman John Conyers; Dennis
Archer, mayor of Detroit, MI; L. Brooks Patterson, county
executive for Oakland County, MI; Steve Miller, mayor of Port
Huron, MI; Bill Fike, executive vice president and vice
chairman of Magna International; Dan Stamper, president of the
Detroit International Bridge Co.; Richard Czuba, director of
the Michigan Department of Tourism; Bob Farrell, president of
the National Automobile Transporters Association; and Steve
Facione, group vice president of Olympia Entertainment.
Witnesses testifying at the hearing universally voiced
concerns that implementing section 110 at the land borders
could cause severe traffic delays that would effectively close
the land borders. Testimony highlighted that Michigan would
particularly be affected because of the relatively large number
of high-volume border crossings located in the State. Mayor
Archer explained that, of all crossings on the Northern border
handling U.S.-bound vehicle traffic from Canada, Detroit's
Ambassador Bridge is the busiest U.S.-Canadian crossing, the
Detroit-Windsor Tunnel is the second busiest, and Port Huron's
Blue Water Bridge is the fifth. Implementation of section 110
at the land borders would, he explained, turn ``downtown
Detroit [into] a virtual parking lot.'' Dan Stamper, president
of the Detroit International Bridge Co., testified that the
Ambassador Bridge handles approximately 30,000 vehicle
crossings per day. Mr. Stamper calculated that ``assum[ing] the
most efficient and remarkable entry and exit procedures in the
world [that] will take only 30 seconds'' per vehicle, and
making the equally optimistic assumption that only half of the
vehicles have to go through the procedures, that would amount
to an extra ``3,750 minutes of additional processing time each
day.'' As he pointed out, ``there are only 1,440 minutes in a
day.'' Mr. Stamper concluded that, if section 110 is put into
place at the land borders, ``we are talking about closing the
border.'' Witnesses also commented on current delays at the
land border, which are already problematic at peak times.
Trade, commerce, tourism, and the general economic health
of border communities would likewise be seriously harmed by
section 110's implementation. Michigan would also be
particularly hard-hit by secondary economic effects of section
110. Among U.S. States, Michigan is Canada's largest trading
partner, with $57 billion of goods being exchanged between
Michigan and Canada in 1996. Richard Czuba, the State's
Director of Tourism, pointed out that among the 50 States
Michigan is the fourth leading destination for Canadian
tourists, behind New York, Washington, and Florida. Steve
Facione, group vice president of Olympia Entertainment, which
operates the Joe Louis Arena, the Fox theater, Tiger Stadium,
and other entertainment facilities in the Detroit metropolitan
area, expressed concern that the many Canadians who make day-
trips and evening-trips to Michigan for baseball games, hockey
games, and other events would be turned away by border delays
and would spend their entertainment dollars in Canada rather
than the United States. Port Huron Mayor Steve Miller
highlighted the fact that many retailers and manufacturers in
Port Huron depend on Canadian business for their survival, and
that, without that business, jobs that fuel the economy and the
taxes provided by Canadians that go to provide services to
Michiganians would disappear. As he put it, ``the long lines at
the bridge will put an end to the long lines at our cash
registers.''
William Fike, executive vice president and Vice Chairman of
Magna International, an automotive manufacturing corporation
doing extensive cross-border trade in automotive components,
testified that the automotive industry would be hard hit by the
implementation of section 110 at the land borders. It could
easily become so cumbersome and costly to export auto parts
from the United States that automotive component manufacturers
located in Canada could quickly gain a competitive advantage.
The automotive industry would be especially vulnerable because
that industry relies heavily on ``just-in-time'' delivery
methods, under which delays as short as 20 minutes can cause
costly assembly line shut-downs.
Robert Farrell, president of the National Automobile
Transporters Association, testifying also on behalf of the
American Trucking Association and the Michigan Trucking
Association, explained that section 110 would have a severe
impact on the trucking industry as well. Mr. Farrell testified
that the implementation of section 110 ``would dramatically
result in decreased efficiencies and productivity for motor
carriers[, increased] operating and shipping costs;'' by
estimates of the organizations he represents, ``[j]ust to cross
the bridge would cost over $2,500 per car hauler per crossing
in operating costs.''
American consumers and workers, in addition to American
businesses, would also be hurt. As Mr. Fike noted, any
``additional costs incurred in the manufacturing process [] can
only be born by customers, employees and shareholders.'
In response to the concerns raised at the hearing and
elsewhere, Senator Abraham, along with original cosponsors
Senators Kennedy, D'Amato, Leahy, Grams, Dorgan, Collins,
Murray, Burns, and Snowe, introduced S. 1360, the Border
Improvement and Immigration Act of 1997, on November 4, 1997.
As introduced, S. 1360 provided that the entry-exit control
system would not apply at the land borders of the United
States, to U.S. lawful permanent residents, or to residents of
foreign contiguous territories for whom the Attorney General
and Secretary of State have already waived documentary
requirements for entry into the United States under existing
statutory authority. The bill then required the Attorney
General to report to Congress within 2 years on the feasibility
of implementing an entry-exit control system that would collect
departure records for every alien entering and leaving the
United States, including at the land borders. Finally, to
address current congestion and delays at the land borders, the
bill also included authorization, for each of the next 3 fiscal
years, for an additional 300 INS inspectors and an additional
150 Customs inspectors.
To provide an opportunity both for the Subcommittee to
examine the legislation and for it to consider more fully the
nationwide and international impacts of section 110, the
chairman of the Subcommittee on Immigration, Senator Abraham,
convened a second hearing on the issue on November 5, 1997.
That took place in Washington, DC, and included testimony from
the following Members of Congress: Senators Susan Collins,
Alfonse D'Amato, Rod Grams, Patty Murray, Byron Dorgan, and
Congressmen John LaFalce and Jack Quinn. Testimony was further
heard from Michael Hrinyak, Deputy Assistant Commissioner for
Inspections at the Immigration and Naturalization Service; Eric
Kunsman, Director of the Office of Canadian Affairs at the
Department of State; Hallock Northcutt, vice president of the
Travel Industry Association of America; Dan Stamper, president
of the Detroit International Bridge Co.; Bill Stenger,
president and chief operating officer of the Jay Peak Ski
Resort in Jay, VT; Gerald Schwebel, former national chairman,
Border Trade Alliance; and Greg Lebedev, acting chief executive
officer, American Trucking Association.
Testimony again raised the specter of unbearable traffic
delays that would result from implementation of section 110 at
the land borders and highlighted that there are already
unreasonable and lengthy delays at many land border crossings.
Some Members of Congress and others highlighted delays that
would occur on the Northern border if section 110 were
implemented in its current form.2 Representatives of
the Travel Industry Association of America, the American
Trucking Association, and the Border Trade Alliance informed
the Subcommittee that similar insupportable delays and
associated economic harms would also arise if section 110 were
implemented on the Southern land border.3 Opposition
to application of section 110 at both land borders was echoed
by INS and the State Department. Testimony also highlighted the
economic harms that interior States would face as well. Many
interior States, for example, have Canada as their No. 1 export
market.4 Trade between interior States and Canada
typically occurs by truck or train travel overland and through
the Northern border.5 Similar effects were noted for
the many interior States that benefit from trade with
Mexico.6
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\2\ The Commissioner of the New York State Department of
Transportation submitted testimony explaining that the Sear-Brown
Group, a transportation planning and engineering firm, had conducted an
analysis of the projected impact of an entry-exit control pilot project
that the INS was then planning to conduct at the Thousand Islands
Bridge in Northern New York State as a first step toward implementation
of section 110 at the land borders. According to Sear-Brown, delays at
the land border could be as much as 2\1/2\ days, and the line of
waiting vehicles would be more than 7 miles long. Delays would lead to
economic harms as well. Congressman Jack Quinn pointed out that
approximately 2.75 million Canadians visit New York State each year for
at least one night, spending over $400 million. That income to New
Yorkers would be threatened if those Canadians elected to spend their
time and money elsewhere due to border inconveniences and backups. Bill
Stenger, president of the Jay Peak Ski Resort in Vermont, explained
that his business depends heavily on Canadian day skiers, who are
already easily deterred from coming to the United States whenever there
are rumors of or actual delays at the border.
\3\ The Southern land border experiences an even greater volume of
border crossings than the Northern border. While approximately 116
million people cross the Northern border each year, roughly 254 million
people, 75 million cars, and 3.5 million trucks cross the Southern
border at land border ports of entry every year. U.S.-Mexico trade
exceeded $130 billion in 1996, with the vast majority of that trade
crossing the land border.
\4\ The Eastern Border Transportation Coalition has reported that
States not on the border account for 56 percent of the total volume of
U.S.-Canada trade.
\5\ The Canadian Trucking Alliance submitted testimony indicating
that 79.8 percent of all imports into Canada from the United States are
transported by truck across the land border.
\6\ States not on the Southwest border benefit significantly from
trade with Mexico crossing the Southwest border. Dean International,
Inc., an Austin, TX, based engineering and research firm, examined
U.S.-Mexico trade from 1988 to 1994 on a State-by-State basis and
concluded that all 48 contiguous States benefitted from increased
exports to Mexico. In that same period, 25 States had tripled their
exports to Mexico and another 14 States had doubled their exports to
Mexico.
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The State Department further expressed concern that the
implementation of section 110 at the land borders would harm
U.S. diplomatic relations with Canada and Mexico.
Administration officials and representatives of the travel
industry additionally testified concerning difficulties with
implementing section 110 at seaports and the potential harms
this could cause to businesses that rely upon seaport travel
and its facilitation, such as the tourism and cruise line
industries. Finally, concerns were raised that serious
environmental damagewould result from pollution that would be
generated by long lines of idling trucks and cars on both sides of the
land borders, and that highway safety would be compromised by both
commercial and noncommercial drivers becoming overtired during lengthy
waits after which they could continue on potentially long drives.
In response to concerns raised at the hearing and otherwise
brought to the Committee's attention, Senators Abraham and
Kennedy developed a substitute amendment to S. 1360. Changes in
the substitute amendment provided that automated entry-exit
control would not be required at seaports, in addition to not
being required at land borders, but that automated entry-exit
control at airports would have to cover U.S. lawful permanent
residents. The substitute also included provisions to address
practical problems occurring at the Southwest border with the
issuance of the new biometric border crossing cards (also
called ``laser visas'') mandated by Section 104 of IIRIRA. The
substitute included additional INS inspections personnel and
other resources for border control and enforcement.
On April 23, 1998, S. 1360 was taken up by the Committee,
and the substitute amendment was considered.7 The
bill was ordered favorably reported by the Committee, with an
amendment in the nature of a substitute, by voice vote, with
four Senators noted as voting in the negative.
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\7\ As of the date of the markup, the following 26 Senators had
cosponsored the legislation: Kennedy, D'Amato, Leahy, Grams, Dorgan,
Collins, Murray, Burns, Snowe, Gorton, Levin, Jeffords, Graham,
Murkowski, Craig, Moynihan, DeWine, Thurmond, Cochran, Inouye,
Landrieu, Baucus, Wellstone, Akaka, Durbin, and Kempthorne.
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III. DISCUSSION
A. Overview
1. Lack of Congressional Intent and Understanding Concerning the Final
Language of Section 110 of IIRIRA
The problematic language of section 110, specifically its
requirement that automated entry-exit control be applied to
``every alien'' entering and leaving the United States, was
inserted only in conference with no apparent understanding,
discussion, or debate concerning its potential consequences,
particularly at the land borders. Neither of the precursor
sections contained in the House and Senate immigration bills
considered in the 104th Congress would have required automated
entry-exit control at land borders or seaports. The application
of section 110 at all ports of entry accordingly cannot be
accurately stated to have been an integral part of IIRIRA, of
efforts taken in the 104th Congress to address the serious
problem of visa overstayers remaining in the United States
illegally, or of proposals then under consideration to improve
the entry-exit control procedures carried out at airports. In
the Committee's view, the broad-based and comprehensive
coverage of automated entry-exit control mandated by section
110 of IIRIRA was simply not fully understood or considered in
the 104th Congress. It should be corrected.8
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\8\ As Chairman Hatch candidly acknowledged at the markup of S.
1360:
I was there at the conference, and while it is no fun to
admit one was wrong, I think that we have all come to
realize that section 110 of the 1996 Act [was] inserted in
conference with little or no record, [and] no consideration
or debate. It was well intended, there is no question, but
I think poorly constructed. [T]his bill attempts to take a
step back, and reasonably and realistically calls for
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careful study before implementation.
2. Eliminating Requirements to Implement section 110 at Other than Air
Ports of Entry and Requiring a Study and Report on Comprehensive
Automated Entry-Exit Control is the Most Appropriate Legislative
Response
The Committee believes that, under the circumstances of
section 110's passage and given the outpouring of concern over
its implementation,9 the most responsible
legislative course of action is to modify the requirements of
section 110 to most closely conform with legislative intent and
feasibility. For that reason, S. 1360's modification of section
110's automated entry-exit control requirements to limit its
application to airports, but to require a feasibility study of
entry-exit control at land borders and seaports, is the most
attractive option to the Committee at this time. The Committee
strongly believes that Congress would benefit from a detailed
study of the costs, feasibility, and benefits of various means
of conducting automated entry-exit control at all ports of
entry, including land borders and seaports, before it considers
imposing such a system. For that reason, S. 1360 requires a
detailed study to be completed by the Attorney General within 2
years.
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\9\ A wide range of groups and organizations have expressed support
for S. 1360 and raised serious concerns about the implementation of
section 110 at land borders and seaports, including the National
Governors' Association, the Republican Governors' Association, the
Chamber of Commerce of the United States, the Senate Tourism Caucus,
the American Trucking Association, the County Executives of America,
the American Automobile Manufacturers' Association, the American
Automobile Association, the Border Trade Alliance, the New York State
Department of Transportation, the Michigan Department of
Transportation, the Chrysler Corp., Kraft Foods, the Detroit and Canada
Tunnel Corp., the Association of American Railroads, the Canadian/
American Border Trade Alliance, the Detroit Regional Chamber, the
Eastern Border Transportation Coalition, the Council of State
Governments-West, the Nevada Commission on Tourism, the Battle River
Tourist Association, the Passenger Vessel Association, the Battle Creek
Area Chamber of Commerce, the National Treasury Employees Union, and
the American Immigration Lawyers Association. Letters of support for S.
1360 have been received from the following State Governors: John Engler
(MI), Tony Knowles (AK), Edward Schafer (ND), Arne Carlson (MN), Phil
Batt (ID), Gary Locke (WA), Jeanne Shaheen (NH), Howard Dean (VT), Marc
Racicot (MT), Jane Dee Hull (AZ), and Bob Miller (NV).
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This approach not only brings section 110 more closely in
line with congressional intent and understanding, but also
removes the considerable pressures being felt in border States,
communities, and businesses. They should not be forced to
remain in the uncertain position of not knowing whether or when
burdensome requirements might be tested or imposed on them. The
Committee rejects any delayed implementation that is based on
retaining a requirement in the law that the system must be
implemented. A thorough study and complete understanding is in
order before Congress requires potentially onerous and
destructive requirements to go into place. That is the case
particularly given the complete lack of study and debate
concerning comprehensive automated entry-exit control and given
the unavailability of any feasible alternatives for conducting
it at the land borders at this time without effectively closing
those borders.10
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\10\ As Senator Abraham, the Chairman of the Subcommittee on
Immigration, stated at the markup:
[T]he idea of putting [into the laws of the United
States] something that would have to come into effect when
we don't even know what it costs, how it would be done,
whether it would work, [and] how effective it would be, * *
* I find to be not the proper way to do the public's
business.
The Committee also believes that there is not the necessary
support in Congress or elsewhere, nor sufficient assurances of
feasibility, to require land border pilot projects at this
time. Not only has no Member of Congress requested a pilot
project in his or her district, but many members in fact fought
hard to get the INS to cancel plans to conduct entry-exit
control pilot projects on the land borders.11
\11\ Congressman Henry Bonilla and the Chairman of the House
Subcommittee on Immigration and Claims, Congressman Lamar Smith, for
example, sent a joint letter to INS Commissioner Doris Meissner
requesting that the INS suspend the Eagle Pass Pilot Project due to
community opposition. As had been the case when the now-canceled
Thousand Islands pilot project was proposed in Northern New York State,
community opposition was fierce.
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The Committee notes that it retains its full freedom to
enact an appropriate legislative scheme at a later date for
automated entry-exit control at the land borders or for pilot
projects, and will be in a far better position to give the
issue adequate consideration after a study is completed.
The Committee reaffirms that an automated entry and exit
control system must be put into place at airports no later than
2 years after the date of enactment of IIRIRA. There is no
reason to delay this element of arrival and departure
recordkeeping, as collection of entry and exit data can be done
in conjunction with other processing travelers are subject to
at airports.
B. Specific Problems and Issues
1. Without a Legislative Fix, Unbearable Traffic Delays Would Develop
at the Land Borders
Extensive testimony at both Subcommittee hearings and other
evidence received by the Committee support the view that, if
section 110 were implemented in its current form, unbearable
traffic delays would develop that could potentially close the
land borders. An incredible volume of traffic crosses the land
borders. In 1996 alone, for example, over 116 million people
entered the United States by land from Canada; some 254 million
individuals cross the United States-Mexico border each year.
Traffic at many Northern and Southern border crossing points is
already excessive. The additional delays created by
implementing section 110 at the land borders would be
catastrophic.
2. Potentially Exorbitant Costs Would be Involved in Implementing
section 110 at Land Borders and Seaports
Section 110 would require INS inspectors to record the
entry and exit of each alien. Since there are no exit
facilities at present, exit control would create a stop where
none exists, and would require the construction of costly
infrastructure where none exists. The Committee agrees that
Congress should understand exactly what those costs are--and
what benefits will be gained from incurring them--before
requiring the implementation of entry-exit control at the land
borders.
3. American Trade, Businesses, and Jobs Would Suffer
As extensive testimony at the two Subcommittee hearings
demonstrated, the delays and traffic caused by the
implementation of section 110 at the land borders would cause
significant harm to trade with neighboring nations. This is of
particular concern to the Committee, given that the United
States is the greatest exporting nation in the world and given
that trade with Canada and Mexico is largely responsible for
that preeminent position in world trade.12 Any
decrease in trade could cause serious damage to American
businesses, who lose markets for their products and services,
American consumers, who could have to pay more for goods and
services, and American employees, whose jobs depend on trade.
Economic losses also lead to decreased tax revenues for State
and local governments. The potentially serious consequences
here should be fully understood and carefully studied before
Congress takes action that could lead to significant economic
harms for U.S. businesses, States and localities, and
individuals.
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\12\ The U.S.-Canada trading relationship itself is the largest
bilateral trading relationship in the world, totaling $355 billion per
year in 1996.
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4. U.S. Diplomatic Relations With Canada and Mexico Would Suffer
As the State Department pointed out at the hearing, the
United States has close and unique relationships with Canada
and Mexico, which would be harmed by the implementation of
section 110 in its current form due to the severe impact it
would have at the land borders and, in the case of Canada, its
contravention of existing documentary requirements for
Canadians entering the United States. The Mexican Ambassador to
the United States, Ambassador Jesus Reyes-Heroles, and the
Canadian Ambassador to the United States, Ambassador Raymond
Chretien, have both written to the Committee voicing their
support for S. 1360 and noting the strong bilateral interests
shared by each country with the United States. Congress should
take the time to ensure that our international relations have
properly been taken into account and accommodated where
possible before enacting legislative provisions that could
cause diplomatic difficulties. That was not done before section
110 was enacted.
5. The Environment and Highway Safety Would Suffer
As the American Trucking Association and the President of
the Detroit International Bridge Company pointed out, long
lines of idling vehicles would emit high and continuous levels
of pollution. Long waits would also cause drivers to become
overtired and highway safety would be compromised as well.
These issues should likewise be studied and carefully
considered before any such problems are imposed.
6. Implementation of Section 110 at Land Borders and Seaports Would
Yield No More Than Minimal Benefits at This Time
Compounding the above problems is the fact that it is
unclear whether anything more than minimal benefits would be
gained from an attempt to implement automated entry-exit
control at the land borders and seaports at this time. Any such
benefits would be far outweighed by the potentially
catastrophic results that would be created by section 110's
implementation.
a. It is highly questionable at this point whether section 110 would
ultimately provide any assistance in prosecuting individual
visa overstayers
The only purported or even possible goal of an automated
entry-exit control system is to track when aliens have entered
and left the United States and whether they have overstayed
their legally authorized period of stay. This data is extremely
useful in the aggregate, for example, for estimating overstay
rates for all aliens or for certain nationalities, which in
turn is especially pertinent for purposes of determining
whether countries are eligible to remain in the visa waiver
program. Its benefits on an individual basis, however, are at
this point entirely unproven and highly uncertain for a number
of reasons.
There is first the issue as to whether the database would
contain accurate enough information to be used in individual
cases. If it were not certain that departure records were being
taken consistently and entered into the system accurately, or
that the system was matching records correctly, then it could
not be said with sufficient certainty that the absence of a
departure record in the system matched with an individual's
arrival information meant that an individual had not in fact
left the United States. It is certainly conceivable, and
perhaps even likely, that such a system would be fraught with
errors and be unreliable for using as the basis for individual
prosecutions.13
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\13\ This is especially a concern given that the INS has been
unable since 1992 to produce usable data from its current paper-based
entry-exit control system.
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Such a system would also itself be subject to fraud, and
this would further undermine the usefulness of the system as a
basis for individual prosecutions. For instance, if the system
were based on filling out information on a card upon exit, an
individual remaining in the United States could have someone
else exiting the United States fill out the overstayer's
information on the card.14 Or, if the system were
based on swiping some sort of electronic or other card upon
exit, an individual remaining in the United States could send
that person's card out with another individual. Or perhaps
there would be a market for counterfeit cards.
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\14\ If the individual leaving was then accused of overstaying,
that person would not only be out of the country, but would likely have
ample other proof that he or she had left the United States, such as a
used airline ticket and boarding pass or a passport stamp indicating
that the individual had entered another country.
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Even making the assumption, which at this point is
unrealistic and untested, that a database of millions of visa
overstayers could be accurately collected by the INS, it is
unclear what that information would yield.15 Even if
a list of names and passport numbers of visa overstayers would
be available, there would be no information as to where
individuals could be located. Even if there was information at
the time of entry as to where an alien was expecting to go in
the United States, it cannot be expected that 6 or more months
later the alien would be at the same location. Particularly if
an alien were intending to overstay, it is likely that the
alien would have provided only a temporary or false location as
to where the alien was intending to go.
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\15\ As Mayor Archer of Detroit opined at the field hearing, such
an entry-exit control database would include millions of names, and
there is no indication that it would be feasible to devote the
necessary resources to finding those individuals or that there even
would be any way to find them.
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Moreover, simply providing this information to INS does not
mean that the INS would have the resources to pursue these
cases or that they would become the Service's first priority.
The INS already fails to detain significant numbers of
removable criminal aliens upon their release from State and
local facilities and acknowledges that those criminal aliens
will likely not appear for deportation
proceedings.16 Where the INS is already having
significant difficulties removing criminal aliens, it cannot be
expected that the INS would somehow be immediately capable of
removing millions of visa overstayers.
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\16\ See, e.g., GAO Report, ``INS' Efforts to Identify and Remove
Imprisoned Aliens Need To Be Improved'' (July 15, 1997).
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While the Committee remains gravely concerned about the
problem of visa overstayers in this country, it is equally
committed to ensuring that rational and cost-effective means
are used to pursue this problem. The Committee is cognizant of
the complex issues, including the abuse of and inefficiencies
in the system itself, raised in considering entry-exit control
as a means of going after individual overstayers. A full report
is needed on all aspects of automated entry-exit control,
including the potential for crime and fraud in the system,
before the Committee can properly evaluate the extent to which
it makes sense to pursue full automated entry-exit control as a
means of identifying visa overstayers or whether it might be
more effective to pursue visa overstayers through other means,
such as aggressive and certain enforcement whenever visa
overstayers are encountered by INS.
b. Section 110 has nothing to do with stopping terrorists or drug
traffickers
The Committee is keenly aware that implementing an
automated entry-exit control system has absolutely nothing to
do with countering drug trafficking, with halting the entry of
terrorists into the United States, or with any other illegal
activity at or near the borders. An automated entry-exit
control system will at best provide information only on those
who have overstayed their visas. Even if a vast database of
millions of visa overstayers could be developed, this database
will in no way provide information as to which individuals
might be engaging in other unlawful activity. It will
accordingly provide no assistance in identifying terrorists,
drug traffickers, or other criminals.17 Information
concerning criminal and terrorist aliens can instead only be
provided through strong law enforcement, which the Committee
vigorously supports. Halting the entry of terrorists or other
criminals at border ports of entry occurs through strong border
inspections, which the Committee again strongly
supports.18
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\17\ In fact, terrorists or other criminals seeking to avoid being
entered in the automated entry-exit control system could do so with
ease by simply leaving the United States before their lawful period of
entry, typically 6 months for a tourist or business visa, has expired
or by perpetrating fraud on the entry-exit system.
\18\ Several terrorists and other criminals have, for example, been
caught attempting entry through the Northern border by INS inspections
personnel. Those individuals were apprehended under current inspections
and enforcement procedures. To continue the success of such efforts and
to further improve them, additional inspections and enforcement
resources are an absolute necessity. Entry-exit control adds little to
efforts to control the border itself because even under entry-exit
control individuals are permitted to enter the United States. Their
names will only appear in an overstay database six or more months after
they have been in the United States if they have not left the country.
If individuals pose a threat to the United States, they should be
apprehended at a port of entry and prevented from entering--not
permitted to enter for prolonged periods.
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c. Current visa overstay enforcement and prosecution efforts should be
improved
This is not to lose sight of the significant problem of
visa overstayers in the country.19 The magnitude and
importance of the problem, however, should not lead Congress to
adopt an ill-advised, harmful, expensive, and easily evaded
system in an attempt to address visa overstayers. Notably, the
Committee and the Congress understood the importance of this
issue during consideration of IIRIRA and included a number of
provisions in that legislation to address the very serious
problem of visa overstayers.20 Strong enforcement
and strict penalties should be the cornerstone of efforts to
attack the visa overstay problem and deter potential
overstayers. The Committee has serious concerns that the INS is
not currently doing all that it can to identify and remove visa
overstayers.
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\19\ It is estimated that visa overstayers account for roughly 40
percent of the estimated 5 million illegal immigrants in the United
States today.
\20\ Section 132 of IIRIRA, for example, authorized 300 additional
INS investigators to investigate visa overstayers, and section 301
included severe reentry bars for visa overstayers.
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C. Committee Substitute to S. 1360
The Committee substitute was developed to incorporate
suggestions made by the Immigration and Naturalization Service
and by several Members. In a letter to the Committee, the INS
requested that the legislation be amended in two ways: first,
to exempt seaports from coverage of the automated entry-exit
control system; and second, to remove the exemption for United
States lawful permanent resident aliens. Senators Murkowski and
Stevens wrote to the Committee also requesting that seaports be
excluded from coverage of section 110.
These changes are included in the Committee substitute. As
is the case with land borders, implementation of section 110 at
seaports would be an entirely new application of entry-exit
control that was not debated or properly considered during
debate on IIRIRA. Additionally, these untested controls could
cause delays and processing difficulties, impose secondary
economic harms on affected industries, and involve potentially
costly infrastructure. Although lawful permanent residents are
not currently required to fill out paper entry-exit forms when
they enter the United States, there are sound reasons to cover
them, such as that lawful permanent residents face time limits
as to how much time they can spend outside the United States
and maintain their lawful permanent resident status.
Reporting requirements were also improved and expanded,
particularly to provide specific reporting requirements on data
obtained from the automated entry-exit control system and to
include reporting requirements on the INS's progress in
implementing automated entry-exit control as required at
airports.
To accommodate concerns raised by Senator Kyl and others
concerning problems being experienced at the Southwest border
with the implementation of the new biometric border crossing
cards (also called ``laser visas'') mandated by section 104 of
IIRIRA, several provisions related to the new border crossing
cards were added to the substitute amendment. First, a fee
waiver was included for minors, so that families would not be
deterred from visiting and shopping in the United States.
Second, to address the lack of production capacity for the new
laser visas, which cannot accommodate the demand for
replacement cards by the current statutory deadline, the
substitute extends by 1 year the deadline after which INS can
no longer accept the previous cards. Finally, it ensures that
the State Department will keep open throughout the replacement
period a number of the temporary application processing
locations that it has opened near the Southwest border to take
applications for the new biometric border crossing cards.
The Committee substitute amendment includes additional INS
resources for border control and enforcement, and a Sense of
the Senate that similar additional resources should be
authorized for the Customs Service because Customs is cross-
designated to enforce immigration laws and plays an important
border control role. Additional resources are needed to address
the significant border crossing delays already being
experienced and to improve enforcement of our immigration laws
at the borders. The Committee notes that inspections are
particularly key for detecting those attempting to enter the
United States fraudulently or for improper purposes. These
resources should be distributed equitably between the Northern
and Southern land borders. While resources should generally go
where most needed, the Committee is somewhat concerned that in
recent years the Northern border has suffered a relative
decline in INS and other border control and enforcement
personnel.
Conclusion.--These factors as a whole have led the
Committee, after careful consideration, to conclude that a
number of measures are necessary and appropriate to address and
improve conditions at the borders of the United States. It is
the Committee's view that S. 1360 embodies a reasoned and
balanced approach to facilitating trade, travel, and tourism at
the land borders, while at the same time addressing border
enforcement needs.
IV. VOTE OF THE COMMITTEE
The Senate Judiciary Committee, with a quorum present, met
on Thursday, April 23, 1998, at 10:30 a.m., to mark up S. 1360.
At that meeting, S. 1360 was ordered favorably reported, with
an amendment in the nature of a substitute, by voice vote, with
Senators Ashcroft, Sessions, Feinstein, and Torricelli noted as
having voted nay.
V. SECTION-BY-SECTION ANALYSIS
Section 1. Short title
This section provides that the legislation may be cited as
the ``Border Improvement and Immigration Act of 1998.''
Section 2. Amendment of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996
This section amends Section 110 of the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 (IIRIRA).
Section 110 requires the Immigration and Naturalization Service
to develop, by September 30, 1998, an automated entry and exit
control system to document the entry and departure of ``every
alien'' arriving in and leaving the United States. The problem
is that the term ``every alien''--broad language that was
inserted only in conference and the potential implications of
which were not fully appreciated--could be interpreted to cover
those entering at land borders or seaports and many aliens
entering elsewhere who are currently exempt from filling out
immigration forms.
At two Immigration Subcommittee hearings on this topic,
extensive testimony was heard from the private sector, local
officials in border communities, and the Administration.
Testimony indicated that if section 110 was implemented in its
current form, intolerable backlogs and delays would develop
that would effectively close the land borders and conflicts
would arise with current documentary requirements. Implementing
exit controls at the land borders and seaports would also
require the costly construction of perhaps billions of dollars
in additional infrastructure, with at best vague and
unspecified benefits.
This section of the legislation accordingly limits the
implementation of section 110 to airports and provides that it
would cover all aliens entering airports except those residents
of foreign contiguous territories for whom the Attorney General
and the Secretary of State have waived documentary
requirements. The succeeding section then sets up a reporting
requirement, so that Congress will have appropriate information
on hand before it decides whether, where, and how any
additional automated entry-exit control requirements would be
implemented. This approach is supported by the National
Governors' Association, the Republican Governors' Association,
the Administration, and a broad array of business interests;
those organizations particularly reject any delayed
implementation requirement on the grounds that the States and
businesses should not be subjected to the pressure and
uncertainty of not knowing exactly what burdens could be
imposed on them in the future.
Section 3. Report on automated entry-exit control system
This section requires the Attorney General, within 2 years
after the date of enactment of this Act, to report to the
Senate and House Judiciary Committees on the feasibility of
developing and implementing an automated entry-exit control
system that wouldtrack the arrival and departure of every alien
entering or leaving the United States, including those entering or
departing at land borders or seaports.
The report is to include the following: (1) an assessment
of the costs and feasibility of various means of operating such
a system; (2) consideration of the various means of developing
such a system, including the use of pilot projects if
appropriate, and an assessment of which means would be most
appropriate in which geographic regions; (3) an evaluation of
how such a system could be implemented without increasing
border traffic congestion and border crossing delays and, if
any such system would increase border delays, an evaluation of
the extent to which such congestion or delays would increase;
and (4) an estimation of the length of time that would be
required for any such system to be developed and implemented.
Section 4. Annual reports on entry-exit control and use of entry-exit
control data
To ensure compliance with statutory requirements, this
section first provides that within 30 days after the end of
each fiscal year and until the Attorney General certifies that
the requirement to establish the automated entry-exit control
system at airports is being met, the Attorney General must
report to Congress on the implementation of the system. The
Attorney General must provide an accurate assessment of the
state of implementation, a specific time-line for
implementation, and detailed estimates of any funding needed.
This section then provides for annual reports to Congress
on data collected from the entry-exit control system that would
be in operation at airports. Reports would be required to
include the following information: (1) the number of arrival
records and the number of departure records that were collected
through the entry-exit control system, with a separate
accounting of those figures by country of nationality; (2) the
number of departure records that were successfully matched to
records of the alien's prior arrival in the United States, with
a separate accounting of those figures by country of
nationality and by classification as immigrant or nonimmigrant;
and (3) the number of aliens who arrived as nonimmigrants, or
as visitors under the visa waiver program, for whom no matching
departure record has been obtained through the system or
through other means as of the end of the alien's authorized
period of stay, with an accounting by country of nationality
and approximate date of arrival in the United States.
This section also provides that information regarding
aliens who have remained in the United States beyond their
authorized period of stay who are identified through the system
shall be integrated into appropriate data bases of the
Immigration and Naturalization Service and the Department of
State, including those used at ports-of-entry and at consular
offices.
Section 5. Limitation on certain border crossing-related visa fees
This section addresses several serious problems that have
emerged with the issuance of the new biometric border crossing
cards (also called ``laser visas'') on the Southwest border.
First, to facilitate tourism and trade from families
seeking to enter the Southwest States, the bill provides that
the $45 fee for the new laser visas may be waived for minors
coming to the United States for short-term visits and planning
to stay within 25 miles of the border. The visa would be valid
only until the minor's 18th birthday, however, at which point
the minor would have to pay the fee in order to receive a visa.
In addition, this section would extend by 1 year (until
October 1, 2000) the time period that the State Department and
INS have to replace all existing border crossing cards with the
new biometric laser visas. The current deadline cannot be met.
Without at least a 1-year extension, serious difficulties in
border management will result on the Southwest border that will
harm economies and families in Southwest States.
Finally, because of particular logistical difficulties with
the processing of visas over the Arizona border due to the lack
of consulates or embassies along that border, this section
requires the State Department to continue processing
applications through October 1, 2000, at the temporary
locations State has opened near the Arizona border to accept
laser visa applications.
Section 6. Authorization of appropriations for border control and
enforcement activities of the Immigration and Naturalization
Service
In order to improve border control and enforcement, this
section authorizes a number of specific additional resources
for INS. Adding these resources should improve inspections and
enforcement at the land borders, which are already overtaxed.
Those resources are key both to facilitating legal entry into
the United States and to detecting and halting illegal entry.
Section 7. Sense of the Senate concerning authorization of
appropriations for border control and enforcement activities of
the U.S. Customs Service
Given that the Customs Service is cross-designated to
enforce immigration laws and given the important border control
role played by the Customs Service, this section provides that
it is the Sense of the Senate that authorization for
appropriations should be granted to the Customs Service similar
to that granted to the Immigration and Naturalization Service
under section 6.
VI. COST ESTIMATE
In accordance with paragraph 11(a), rule XXVI, of the
Standing Rules of the Senate, the Committee offers the report
of the Congressional Budget Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, May 8, 1998.
Hon. Orrin G. Hatch,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 1360, the Border
Improvement and Immigration Act of 1998.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contacts are Mark
Grabowicz and Sunita D'Monte.
Sincerely,
Paul Van de Water
For June E. O'Neill, Director.
Enclosure.
Congressional Budget Office Cost Estimate
S. 1360--Border Improvement and Immigration Act of 1998
As reported by the Senate Committee on the Judiciary on April 23, 1998
Summary
S. 1360 would modify a provision in current law that
requires the Immigration and Naturalization Service (INS) to
develop a system to document arrivals and departures of all
aliens (persons who are not U.S. citizens). The bill would ease
this requirement to apply only to aliens who arrive at or
depart from United States airports (except those who have
obtained a waiver of certain documentary requirements). S. 1360
also would decrease the fees charged to certain visitors from
Mexico. Finally, the bill would authorize the appropriation of
$114 million for fiscal year 1999, $121 million for fiscal year
2000, and such sums as may be necessary in each fiscal year
thereafter for inspection and enforcement activities by INS at
land borders.
Assuming the appropriation of the specified and estimated
amounts, CBO estimates that implementing S. 1360 would result
in additional discretionary spending of $613 million over the
1999-2003 period. In addition, we estimate that the bill would
increase direct spending by $2 million in 1999 and by $1
million in 2000. Because S. 1360 would affect direct spending,
pay-as-you-go procedures would apply. This legislation contains
no intergovernmental or private-sector mandates as defined in
the Unfunded Mandates Reform Act of 1995 (UMRA) and would have
no impact on the budgets of state, local, or tribal
governments.
Estimated cost to the Federal Government
The estimated budgetary impact of S. 1360 is shown in the
following table. The estimated authorization levels for 2001
through 2003 shown in the table reflect continued funding at
the authorized level for 2000, with adjustments for anticipated
inflation in subsequent years. Under that assumption, estimated
changes in outlays subject to appropriation action total $613
million over the 1999-2003 period. Alternatively, if the
authorization levels for border control activities are held
constant for 2001 through 2003 at the 2000 level--
withoutadjusting for anticipated inflation--the total change in
discretionary outlays would be about $590 million over the same period.
The costs of this legislation fall within budget functions 150
(international affairs) and 750 (administration of justice).
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By fiscal years, in millions of dollars--
-----------------------------------------------
1998 1999 2000 2001 2002 2003
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SPENDING SUBJECT TO APPROPRIATION
Baseline Spending Under Current Law for INS Salaries and
Expenses:
Estimated Authorization Level \1\........................... 1,660 1,732 1,799 1,866 1,934 2,006
Estimated Outlays........................................... 1,553 1,705 1,777 1,844 1,912 1,983
Proposed Changes:
Estimated Authorization Level \2\........................... 0 114 121 126 130 135
Estimated Outlays........................................... 0 95 125 128 130 135
Spending Under S. 1360 for INS Salaries and Expenses:
Estimated Authorization Level \1\........................... 1,660 1,846 1,920 1,992 2,064 2,141
Estimated Outlays........................................... 1,553 1,800 1,902 1,972 2,042 2,118
CHANGES IN DIRECT SPENDING
Estimated Budget Authority.................................. 0 0 0 0 0 0
Estimated Outlays........................................... 0 2 1 0 0 0
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\1\ The 1998 level is the amount appropriated for that year for salaries and expenses for INS. The authorization
levels shown for 1999 through 2003 reflect inflation adjustments to the 1998 level.
\2\ Without adjustments for inflation, additional outlays would be $95 million in 1999, $125 million in 2000,
$124 million in 2001, and $121 million in each of the years 2002 and 2003.
Basis of estimate--Spending subject to appropriation
For the purposes of this estimate, CBO assumes that the
specified and estimated authorization levels for the border
control programs will be appropriated at the start of each
fiscal year, with outlays following the historical spending
trends for the authorized activities. The estimates in the
table reflect annual adjustments for anticipated inflation
after 2000.
Current law requires INS to develop, by September 30, 1998,
an automated entry and exit control system to document the
movement of every alien who enters or departs the United
States. S. 1360 would reduce this mandate to require recording
of arrivals and departures of aliens only at airports, except
for those residents of foreign contiguous territories for whom
the Attorney General and the Secretary of State have waived
documentary requirements. Enacting the bill could result in
savings for INS relative to current law. However, since it is
unlikely that INS could soon comply with the requirements in
current law, we expect that implementing the bill would have
little effect on the agency's spending in the next few years.
Direct spending
Under current law, the State Department charges a fee of
$45 to visitors who enter the United States; S. 1360 would
eliminate this fee for Mexicans under 18 years of age on
certain types of short visits. Under current law, the fees
affected by this bill are recorded as offsetting collections
and are available to the State Department for spending on
consular affairs. Assuming an enactment date of October 1,
1998, CBO estimates that the State Department would lose
collections of about $16 million a year. The forgone
collections would be offset by lower spending; but because
spending takes place more slowly, forgone collections would
exceed reduced spending by $2 million in 1999 and $1 million in
2000.
Pay-as-you-go considerations
Section 252 of the Balanced Budget and Emergency Deficit
Control Act of 1985 sets up pay-as-you-go procedures for
legislation affecting direct spending or receipts. The net
changes in outlays that are subject to pay-as-you-go procedures
are shown in the following table. For the purposes of enforcing
pay-as-you-go procedures, only the effects in the current year,
the budget year, and the succeeding four years are counted.
----------------------------------------------------------------------------------------------------------------
By fiscal years, in millions of dollars--
----------------------------------------------------------------------------
1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008
----------------------------------------------------------------------------------------------------------------
Changes in outlays............. 0 2 1 0 0 0 0 0 0 0 0
Changes in receipts............
(10) Not applicable
----------------------------------------------------------------------------------------------------------------
Intergovernmental and private-sector impact
S. 1360 contains no intergovernmental or private-sector
mandates as defined in the UMRA and would have no impact on the
budgets of state, local, or tribal governments.
Estimate prepared by: INS Costs: Mark Grabowicz; State
Department Costs: Sunita D'Monte.
Estimate approved by: Robert A. Sunshine, Deputy Assistant
Director for Budget Analysis.
VII. REGULATORY IMPACT STATEMENT
In compliance with paragraph 11(b)(1), rule XXVI of the
Standing Rules of the Senate, it is hereby stated that the
Committee finds that the bill will have no additional direct
regulatory impact.
VIII. ADDITIONAL VIEWS OF SENATOR LEAHY
I am proud to be an original cosponsor of ``The Border
Improvement and Immigration Act of 1998,'' S.1360. This bill
will ensure that free trade and tourism continue to flourish
along our Nation's borders. Without this legislation, the
Immigration and Naturalization Service will be obligated to
begin implementing an enormously expensive entry-exit
monitoring system at all of our Nation's borders this fall
without having the opportunity to study the situation and
develop a workable monitoring system. Senators Kennedy and
Abraham have worked with me to craft legislation which was
supported by nearly all the members of the Judiciary Committee
and I hope it will pass the Senate promptly.
Since Vermont shares 140 miles of border with Canada, as
well as many traditions, I have worked hard to ensure that this
legislation does not negatively impact the thousands of people
and the trade which crosses our northern border each day. This
bill preserves the integrity of our open border with Canada and
ensures that no additional burden is placed upon Canadians who
plan to shop or travel in the United States. It will also
preserve the status quo for places like Norton, VT, which has a
General Store straddling the border, with cash registers in
each country. Vermonters who cross the border on a daily basis
to work or visit with family or friends in Canada should be
able to continue to do so without additional border delays.
The Border Improvement Act will guarantee that the $1
billion in daily cross-border trade with Canada is not
hindered. It also takes a more thoughtful approach to modifying
U.S. immigration policies than that contained in section 110 of
the 1996 Illegal Immigration Reform and Immigrant
Responsibility Act (``IIRIRA''). The current language in
section 110 of the IIRIRA was adopted without input from most
of the Democratic conferees and would have a significant
negative impact on trade and relations between the United
States and Canada. By requiring an automated system for
monitoring the entry and exit of ``all aliens'', section 110
would subject Canadians, and others who are not currently
required to show documentation, to unprecedented border checks
at U.S. points of entry. This sort of tracking system would be
enormously costly to implement along the borders, especially
since there is no current infrastructure in place to track the
departure of individuals leaving the United States at our land
borders or sea ports. Section 110, as currently worded, would
also lead to excessive and costly traffic delays for those
living and working near the borders. These delays would surely
have a negative impact on the $2.4 billion in goods and
services shipped annually from Vermont to Canada and would
likely reduce the $120 million per year which Canadians spend
in Vermont.
Instead of requiring the INS to implement such a costly and
burdensome border tracking system with little forethought,
S.1360 requires the Attorney General to assess thoroughly the
potential cost and impact of any new automated entry-exit
monitoring system along the land borders or at the seaports
before implementation. An entry-exit monitoring system at our
Nation's airports will be implemented within the next 2 years.
The Border Improvement Act also authorizes additional funds to
ensure that adequate staffing and the newest equipment is
available for INS agents along both borders. Before S.1360 was
introduced, I co- sponsored an amendment and sent letters to
Attorney General Reno and INS Commissioner Meissner with
similar language requesting that a study be undertaken before
any sort of automated entry-exit monitoring system be
implemented.
I have heard from a number of national organizations--
ranging from the National Governor's Association and the U.S.
Chamber of Commerce to Ford Motor Company and the American
Hotel and Motel Association--which support the changes S.1360
makes to section 110 of IIRIRA. Howard Dean, Governor of
Vermont, and numerous other Vermonters have also shared their
concerns about the implementation of section 110. In November
1997, Bill Stenger, president of Jay Peak Ski Resort in Jay,
VT, testified before the Immigration Subcommittee that the
implementation of section 110 would have dire consequences for
his ski resort as well as the myriad of other businesses along
the border which rely on Canadian visitors. Without these
visitors, Mr. Stenger testified that ``Jay Peak would go out of
business.''
In April, the Vermont Senate passed a resolution urging
Congress to exempt Canadians from the provisions in section
110. Our extensive shared border and the enormous bilateral
trade conducted daily with Canada are strong reasons to keep
our Nation's northern border open for trade and tourism. I
share their concerns about the potential high costs to
implement an entry-exit monitoring system and possible border
delays if section 110 is not amended. Perhaps most importantly,
I share Vermonters'' concerns about the impact section 110
would have on the ``many extended families, and close friends,
[who] live in communities along both sides of the Vermont-
Quebec border and regularly cross back and forth for
employment, shopping, recreation and cultural purposes,
including visits to the Haskell Free Library and Opera House in
Derby Line that literally stands in both nations.''
Overall, the Border Improvement and Immigration Act of 1998
is a sensible means of correcting the problematic language in
section 110 of the IIRIRA while ensuring that more aliens who
overstay their visas are tracked.
IX. CHANGES IN EXISTING LAW
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
S. 1360, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, and existing law in which no
change is proposed is shown in roman):
ILLEGAL IMMIGRATION REFORM AND IMMIGRANT RESPONSIBILITY ACT OF 1996
(Public Law 104-208-Sept. 30, 1996)
* * * * * * *
TITLE I--IMPROVEMENTS TO BORDER CONTROL, FACILITATION OF LEGAL ENTRY,
AND INTERIOR ENFORCEMENT
Subtitle A--Improved Enforcement at the Border
* * * * * * *
SEC. 104. IMPROVEMENT IN BORDER CROSSING IDENTIFICATION CARD
(a) In General.--Section 101(a)(6) (8 U.S.C. 1101(a)(6)) is
amended by adding at the end the following: ``Such regulations
shall provide that (A) each such document include a biometric
identifier (such as the fingerprint or handprint of the alien)
that is machine readable and (B) an alien presenting a border
crossing identification card is not permitted to cross over the
border into the United States unless the biometric identifier
contained on the card matches the appropriate biometric
characteristic of the alien.''.
(b) Effective Dates.--
(1) Clause a.--Clause (A) of the sentence added by
the amendment made by subsection (a) shall apply to
documents issued on or after 18 months after the date
of the enactment of this Act.
(2) Clause b.--Clause (B) of such sentence shall
apply to cards presented on or after [3 years] (4
years) after the date of the enactment of this Act.
* * * * * * *
[SEC. 110. AUTOMATED ENTRY-EXIT CONTROL SYSTEM.
[(a) System.--Not later than 2 years after the date of the
enactment of this Act, the Attorney General shall develop an
automated entry and exit control system that will--
[(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.]
(a) System.--
(1) In general.--Subject to paragraph (2), not later
than 2 years after the date of enactment of this Act,
the Attorney General shall develop an automated entry
and exit control system will--
(A) collect a record of departure for every
alien departing the United States and match the
record of departure with the record of the
alien's arrival in the United States; and
(B) 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.
(2) Exception.--The system under paragraph (1) shall
not collect a record of arrival or departure--
(A) at a land border or seaport of the United
States for any alien; or
(B) for any alien for whom the documentary
requirements in section 212(a)(7)(B) of the
Immigration and Nationality Act have been
waived by the Attorney General and the
Secretary of State under section 212(d)(4)(B)
of the Immigration and Nationality Act.