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Eli Kantor is a labor, employment and immigration law attorney. He has been practicing labor, employment and immigration law for more than 36 years. He has been featured in articles about labor, employment and immigration law in the L.A. Times, Business Week.com and Daily Variety. He is a regular columnist for the Daily Journal. Telephone (310)274-8216; eli@elikantorlaw.com. For more information, visit beverlyhillsimmigrationlaw.com and and beverlyhillsemploymentlaw.com

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Wednesday, August 02, 2017

Border Agents Test Facial Scans to Track Those Overstaying Visas

New York Times 
By Ron Nixon
August 01, 2017

WASHINGTON — On a recent morning, passengers boarding Emirates flight 232 from Washington Dulles airport to Dubai confronted an unfamiliar sight: a uniformed Customs and Border Protection officer at the gate.

Before passengers approached the airline gate agent, the customs officer, Sung Hyun Ha, scanned their travel documents at a kiosk, which was also equipped with a camera. The photograph taken was matched against a facial scan that foreign visitors submitted to Customs and Border Protection when they entered the country or from their visa application, while the passenger’s identification also was checked against law enforcement and intelligence databases.

The pilot effort is part of a decades-long push to more accurately identify people who overstay their visas and remain in the United States, a group that represents the largest number of people in the United States illegally.

The department believes that if officials can better track who has left the country, they will be able to better assess who has stayed here beyond the legal limit of their visa.

According to the Department of Homeland Security, last year an estimated 629,000 visitors to the United States — just over 1 percent of all travelers — remained in the country after overstaying their visas as students, workers or tourists, and they represent a growing share of the nation’s unauthorized immigrant population.

John Roth, the inspector general at the Department of Homeland Security, said the number of overstays posed a greater security risk than might be apparent from the relatively small numbers, noting that two of the Sept. 11 hijackers had overstayed their visas.

An executive order signed in January by President Trump would require all travelers to the United States to provide biometric data on entry and exit from the country. Currently, visitors provide biometric data only when they enter the country.

Both Democratic and Republican administrations have long viewed a biometric exit system as preferable to paper documents to ensure border security, but for years the technology to collect that information was slow to take hold. Now devices that gather biometric information, from smartphones to security systems, are in widespread use.

“The technology has finally caught up to the legislative intent,” said Christian J. Beckner, a former staff member on the Homeland Security Committee who is now deputy director of the Center for Cyber and Homeland Security at George Washington University.

But the biometric exit system has come under criticism from privacy rights groups, who say the facial recognition scans, while ostensibly set up to make sure foreign visitors leave the country, are an invasive form of surveillance of American citizens. Harrison Rudolph, a fellow at the Center on Privacy & Technology at Georgetown University Law School, raised issues about the accuracy of facial recognition scans and said the agency had not laid out clear guidelines on how the system was to be used.

“Their own data show about 4 percent of people are rejected in facial recognition,” he said. “And what happens if you are rejected? Are you selected for some type of further screening? Customs and Border Protection is subjecting U.S. citizens who want to fly abroad to unreasonable searches.”

Kim Mills, director of the Entry-Exit Transformation Office at Customs and Border Protection, said that while the system did take facial scans of American citizens, the information was used in a very limited way.

“For American citizens, the photo scan is only used to confirm that they are indeed citizens,” she said. “We’re not collecting any new information.”

Nearly 20 years ago, Congress passed a law requiring the federal government to develop a system to track people who overstayed their visas. After the Sept. 11 attacks, an entry- and exit-tracking system was seen as a vital national security and counterterrorism tool, and the 9/11 Commission recommended that the Department of Homeland Security complete a system “as soon as possible.”

Nearly three dozen countries, including many in Europe, Asia, and Africa, collect biometric information — fingerprints, iris scans and photographs that can be used for facial recognition — of people leaving their countries. But the United States has trailed other nations in adopting the technology, despite the congressional mandate.

One reason has been the design of airports in the United States. In most countries, international passengers depart from a separate terminal where customs officials collect biometric information of those exiting the country. But in the United States, passengers for domestic and international flights are often in the same terminals, making it difficult for officials to collect information on people who leave the country — a flight to Jackson, Miss., can be located next to one going to Japan.

Customs and Border Protection has been testing a number of biometric programs in partnership with several airlines in Atlanta, Boston, New York and Washington, funded by up to $1 billion collected from certain visa fee surcharges over the next 10 years.

John Wagner, deputy executive assistant commissioner at the Customs and Border Protection’s Office of Field Operations, said the program would look different at different airports. In some cases the airlines themselves would run the program, incorporating the biometric system into their boarding process. At some airports, Mr. Wagner said, the exit system would be staffed by Customs and Border Protection officers, similar to the situation passengers faced at the Emirates airline boarding gate at Dulles airport.

“We’re trying to figure out the most effective way to do biometric exit,” he said.

For example, in New York and Atlanta, the agency has partnered with Delta Air Lines to test a facial recognition system at the boarding gate for international flights.

The Delta system checks whether a passenger is supposed to be on the plane by comparing the individual’s face with a gallery of photos that the airline has of people on its travel manifest. It also checks the passengers’ citizenship or immigration status against various Homeland Security and intelligence databases. For American citizens, the facial scans are checked against photos from State Department databases.

In Boston, Customs and Border Protection, in cooperation with JetBlue airlines, is testing a facial recognition system for travelers flying to Aruba.

Mr. Wagner said the agency hoped to begin using the biometric exit system at all airports with international flights in 2018.

Homeland Security officials say they believe the entry and exit biometric system can also be used to crack down on illegal immigration.

A report by the Department of Homeland Security inspector general’s office found that Immigration and Customs Enforcement, the agency responsible for investigating in-country visa overstays, had to piece together information from dozens of systems and databases, some of which were not integrated and did not electronically share information.

In the absence of a biometric entry and exit system, the agency depends on incomplete data from airline passenger manifests to track people who leave the country.

ICE agents and officers are currently unable to say how often targets of investigations are incorrectly recorded as having left the country, the department’s Office of Inspector General said.

The inspector general said there was a backlog of 1.2 million visa overstay cases, and ICE has arrested under 1 percent of the individuals who potentially overstayed their visas.

A version of this article appears in print on August 2, 2017, on Page A13 of the New York edition with the headline: Agents Test Facial Scans to Screen at Border.

For more information, go to:  www.beverlyhillsimmigrationlaw.com

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