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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


Wednesday, May 08, 2013

Biometric Tracking a Hurdle for Immigration Bill

USA Today
By Alan Gomez
May 7, 2013

In the aftermath of the Sept. 11 terror attacks, Congress passed a law requiring the federal government to collect the fingerprints of every foreigner leaving the country so the U.S. could better track who has left and, more importantly, who has remained past the expiration of their visas.

The Department of Homeland Security has been unable to establish that program in the 12 years since. And now the program has become a major point of contention in the Senate attempt to overhaul the nation's immigration laws given that millions of people who are in the country illegally first arrived here legally, but overstayed their temporary visas.

Democrats in the "Gang of Eight" that is proposing the immigration overhaul say Homeland Security today is doing a better job tracking foreigners who leave the country using "biographic" data -- such as a traveler's name and date of birth.

Republicans are balking, and it could upset the attempt to pass a bill.

Sen. Orrin Hatch, R-Utah, who was not involved in writing the immigration bill, filed a proposed amendment that requires Homeland Security to use biometric data for departing foreigners. The amendment orders the department to begin collecting biometric information at the 10 busiest international U.S. airports within two years, and expand to 30 airports within six years.

"Biometric data provides the government with certainty that travelers (and not just their travel documents) have or have not left the country," Hatch's office stated.

Democrats are unbowed, saying establishing a system to collect "biometric" data -- such as fingerprints or iris scans -- of every departing foreigner was deemed far too expensive by all members of the gang.

"Everyone was in agreement that the marginal benefit was not worth the extreme costs," said an aide to Sen. Charles Schumer, D-N.Y., one of the members of the Senate group.

Sen. Marco Rubio, R-Fla., who has been trying to sell the immigration plan to skeptical conservatives in the Senate and on TV and radio shows, says that a system using biometric data is needed, according to his staff.

Rubio's support for biometrics echoes calls from Republicans in the Senate and House of Representatives who want to see more in the immigration bill to tighten border security.

Rubio has often pointed out that 40% of the 11 million unauthorized immigrants living in the USA arrived legally on temporary visas and remained, a situation that can be handled better by having a system that can accurately track every person leaving the country.

Hatch's amendment could be put to a vote as early as Thursday.


Congress first tried to establish an "exit-entry" system to accurately match travel records of people entering and leaving the U.S. with a bill passed in 1996.  Starting with the Patriot Act of 2001, Congress has repeatedly tried to augment that process using biometric information.

Since then, the government has established a system to collect fingerprints and pictures of every foreigner entering the country. That work is done at overseas embassies and consulates before they enter the country.

But Homeland Security officials through different administrations have learned just how difficult, and expensive, it is to establish such a system for outgoing passengers.

The nation's first secretary of Homeland Security, Tom Ridge, said his department ran into fierce resistance from airlines and airports that did not want to spend the money associated with adding the new technology and reconfiguring airports to accommodate the program.

"One of my great frustrations is the failure to reach any agreement with the airlines and airport authorities and, quite frankly, the failure broadly of Congress to appreciate the importance of biometrics," Ridge said. "The further away we got from 9/11, the less interested Congress was in insisting that at least an airport exit system be developed. We just lost our will along the way."

Ridge's successor, Michael Chertoff, said the basic architecture of airports proved one of the biggest obstacles.

"If you go to European airports, the international departure area is separate," Chertoff said. "You have to go through a border control exit. Everything funnels through there. Most of our airports aren't configured that way."

A 2008 Homeland Security estimate found that setting up biometric-capturing technology at all the nation's air and seaports would cost between $3.1 and $6.4 billion. The estimate did not attempt to calculate the costs of adding similar technology at the nation's land ports of entry, which account for 79% of the people who enter the U.S.


In an effort to work around those limitations, Homeland Security performed pilot programs at 14 airports to test different ways to collect passengers' fingerprints on their way out.

During one test, officials used handheld machines collected fingerprints as they walked around gates for international departures. In another test, the department placed kiosks at different locations around airports, asking people to come and submit their fingerprints.

A General Accounting Office report summarizing the pilots found "unacceptably low traveler compliance rates." But Homeland Security established through the program that they could more reliably identify departing foreigners using biometrics.

"The pilot established that with two-fingerprint matching, biometric entry and exit records could be matched with 99.73% accuracy, which is significantly higher than the rate obtained through the matching of biographic records," a department document stated in 2008.

Ridge and Chertoff remain convinced that biometrics are the way to go, with Chertoff calling it the "gold standard."

Current Homeland Security Secretary Janet Napolitano isn't so sure.

During recent hearings, Napolitano has told legislators the department has drastically improved the computer systems it uses to link up the information passengers submit when they enter and leave the country.

"With the enhanced biographic system that we are implementing now, the difference between that and a biometric is not as great as you would think," Napolitano said before the Senate Judiciary Committee last month. "And that is our current plan, to do enhanced biographic at the exits of our country -- land, air and sea -- and then move gradually, because it's very, very expensive, into biometric."

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