[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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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
---------------------------------------------------------------------------
    \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 
---------------------------------------------------------------------------
      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.
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------

    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
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \16\ See, e.g., GAO Report, ``INS' Efforts to Identify and Remove 
Imprisoned Aliens Need To Be Improved'' (July 15, 1997).
---------------------------------------------------------------------------
    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
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------

                   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).

----------------------------------------------------------------------------------------------------------------
                                                                     By fiscal years, in millions of dollars--  
                                                                 -----------------------------------------------
                                                                   1998    1999    2000    2001    2002    2003 
----------------------------------------------------------------------------------------------------------------
                                        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
----------------------------------------------------------------------------------------------------------------
\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.