1994

RECOMMENDATIONS

- -

RECOMMENDATIONS

Border Management

Each year U.S. land and air borders face inspection of approximately 500 million people seeking entry. In 1993, approximately 409 million people were inspected at U.S. land ports of entry, 55 million at airports, and 9 million at seaports. This number does not include illegal entrants or individuals apprehended while attempting to enter illegally. The Immigration and Naturalization Service [INS] estimated in 1992 that there were 3.4 million "permanent" illegal aliens in the U.S. Of this population, roughly one-half entered legally by air and overstayed their visas and the other one-half entered without inspection by land or sea.

Management of land and air borders, an enormous task, is the primary responsibility of the INS, a division of the Department of Justice [DOJ]. Enforcement responsibility is further divided by INS into the Border Patrol and the Office of Inspections. Additionally, other divisions within the INS, the Department of Justice, and other federal agencies have responsibilities for, or are affected by, border enforcement, including the Executive Office for Immigration Review [EOIR], the Department of State, the U.S. Department of Agriculture [USDA], U.S. Customs Service [Customs], and the Coast Guard.

The Border Patrol manages U.S. international boundaries at land, air, and sea ports of entry. Their objective is to detect and prevent the entry of illegal aliens and to interdict narcotics and other contraband by patrolling the boundaries and carrying out checkpoint

inspections. In addition, the Border Patrol investigates employer hiring practices, interdicts and arrests aliens who have committed serious crimes, and investigates drug and alien smuggling rings.

U.S. COMMISSION ON IMMIGRATION REFORM

1994

RECOMMENDATIONS

- -

The responsibilities of the Office of Inspections at land, air, and sea ports of entry are twofold: facilitation of entry of citizens and eligible aliens into the United States; and prevention of entry of ineligible aliens, including criminals and drug traffickers, among others. INS performs two main inspection operation functions, classified as primary and secondary inspections. Primary inspection determines admissibility at initial contact with the applicant and grants admission when no further action or documentation is needed. INS guidelines provide inspectors two to sixty seconds in primary inspection in which to decide the identity and admissibility of a traveler applying for entry into the United States. Secondary inspection occurs if the admissibility of an applicant cannot be determined during

primary inspection.

The key component of a credible immigration policy is one that curbs illegal entries while also facilitating legal entry of people who have a right to be in the country. The Commission believes that significant progress has been made during the past year in identifying and remedying some of the weaknesses in U.S. border management. Nevertheless, we believe that far more can and should be done to meet its twin goals. The Commission's emphasis so far has been on the southern border and its recommendations are based on our research and observations in that region. Study and evaluation of the northern border will begin next year and further recommendations, if needed, will follow.

Land Borders

The Commission supports the strategy, now being tested as "Operation Hold the Line" in El Paso, that emphasizes prevention of illegal entry at the border, rather than apprehension following illegal entry.

The Commission supports

the strategy,

now being tested

as "Operation

Hold the Line"

in El Paso,

that emphasizes prevention

of illegal entry

at the border,

rather than

apprehension

following

illegal entry.

U.S. COMMISSION ON IMMIGRATION REFORM

1994

RECOMMENDATIONS

- -

The Commission believes that an underlying principle for land border management is that prevention is far more effective and cost-efficient than the apprehension and removal of illegal aliens after entry. Traditional policy, focused on apprehension of illegal aliens, has many shortcomings. For example, too many illegal aliens are able to elude the Border Patrol; too many violent confrontations occur between the Border Patrol and those suspected of being illegal aliens as officers pursue and aliens attempt to evade capture; and the border is a revolving door with apprehended aliens attempting a new entry within hours of release. Further, when Border Patrol operations focus on apprehensions, coordination with inspections operations suffers. Yet, the resulting barriers to legal entry may be a factor in causing illegal movements. Because the waits at bridges and other ports of entry on the southern border are sometimes hours long, even some Mexican residents with valid Border Crossing Cards [BCCs] cross the border illegally to avoid the delay in entry.

The Commission believes that the prevention strategy, such as that utilized by "Operation Hold the Line," holds many advantages over such an apprehension approach and recommends that it be the prevalent form of border enforcement along the southern border.

The Commission was favorably impressed with the pilot "Operation Hold the Line" program in El Paso. Originally conceived by Border Patrol Sector Chief Silvestre Reyes, this two-week pilot

program was tested on the El Paso, Texas and the Ciudad Juarez, Mexico border as "Operation Blockade." In the twenty-mile section of the Rio Grande River that separates the two cities, the Border Patrol stationed 450 agentstriple the normal numberon an around-the-clock watch. This new strategy, which began in September 1993, saturated the border with Border Patrol agents to prevent entries without inspection. Previously, the strategy in El Paso (as is the case in many border areas) was to allow movement across the border and to apprehend illegal crossers once they were in the coun

U.S. COMMISSION ON IMMIGRATION REFORM

1994

RECOMMENDATIONS

- -

try. The old strategy took advantage of the rugged terrain around El Paso that makes it difficult for long-distance migrants to move to interior destinations but allowed easy access to El Paso for local illegal migrants. The new strategy substantially reduced illegal crossings and, thereby, substantially reduced the need for Border Patrol

apprehension operations.

Following the expiration of the two week operation, the Border Patrol decided to continue the strategy but renamed the operation in

response to criticism of the negative connotation of the term "Blockade." The strategy continued as "Operation Hold the Line." Increased Border Patrol presence on the border was made possible by posting agents normally stationed in the interior at the border, although the number of agents on the line was less than the 450

deployed during the initial operation.

The Commission funded a University of Texas study on the effects of "Operation Hold the Line" on El Paso/Juarez from September 1993 through April 1994. The study used a wide variety of quantitative and qualitative methods to gauge the operation's scope and effectiveness. The quantitative evidence includes border crossing and apprehensions data, police and crime data, birth and hospital data, education and school attendance statistics, and sales tax and general sales data. The qualitative evidence includes ethnographic and in-depth interviews and provides information about motivations and other factors not evident from official statistics on either illegal or legal crossings.

The study found that "Operation Hold the Line" affected the immediate border area in three ways. First, it substantially deterred illegal crossings into El Paso, thereby eliminating the cycle of voluntary return and reentry that has characterized unlawful border crossings. Second, due to reduced interaction between the Border Patrol and would-be crossers, the number of charges of Border Patrol human

U.S. COMMISSION ON IMMIGRATION REFORM

1994

RECOMMENDATIONS

- -

rights violations declined substantially. Third, seizures of illegal drugs, illegal agricultural products, and other contraband increased.

The Operation had a number of beneficial side effects, particularly for the downtown El Paso area. There was a reduction in illegal workers engaging in street vending in downtown El Paso and

a substantial decrease in criminal activity. Decreases in petty

crime appeared directly linked to reductions in the number of

illegal alien entries; decreases in more serious crime occurred because police were able to redirect their resources towards investigation of these crimes.

Although many people in the business communities on both sides of the border feared that "Operation Hold the Line" would affect their livelihood, the study found that business activity in El Paso and Juarez was not substantially harmed. Other effects were small declines in school enrollment and in the number of reported births.

Although no independent surveys of public opinion were undertaken during this period, interviews by University of Texas researchers with residents of El Paso generally indicated high levels of

public support for the operation. Elected officials reported that many residents supported the operation because it signaled a reduction in petty crime and the removal of street vendors from downtown El Paso. Additionally, the respondents agreed that the operation greatly diminished complaints of Border Patrol and police harassment of Mexican Americans and legal Mexican residents and that daily illegal crossings were disrupted.

However, the Commission's investigation indicated that some

improvements are needed for the type of prevention strategy

embodied in "Operation Hold the Line" to work nationally. Foremost, a strategy of this type will not work in isolation. Border

U.S. COMMISSION ON IMMIGRATION REFORM

1994

RECOMMENDATIONS

- -

management must be comprehensive in its approach.¹ The study of "Operation Hold the Line" showed that unless a similar strategy is utilized across the entire border, illegal crossings will move to other sections. "Operation Hold the Line" changed crossing patterns. Long-distance crossers shifted their crossing points from El Paso to elsewhere on the border and daily illegal crossings were minimized. Control of aliens into and through El Paso, an urban area, forced the illegal traffic to use other routes outside of the city that were less accessible to public transportation.

The evaluation further affirms that a prevention strategy must be combined with an effective work deterrent as employment is the primary magnet for people wanting to cross illegally. Those who cross to work may extend their stays instead of taking the chance of crossing back and forth. Illegal workers with valid crossing documents for entering the U.S. are even more free to work illegally because of decreased Border Patrol presence in the city of El Paso. The study concluded that, once they were across the border, illegal crossers were less likely to be apprehended by the Border Patrol than they were before the Operation.

The evaluation further demonstrated that relying on staff alone to "hold the line" has diminishing returns because of growing boredom of Border Patrol agents undertaking this type of guard duty and, thus, the need both for retraining of Border Patrol officers to meet the new challenges of a prevention strategy and for new performance measures. Agent interviews revealed concern about job skill erosion. Specifically, because of less diverse activities, agents had little opportunity to gain experiences, improve their powers of ob

¹In August 1994, the Border Patrol released its national strategy for systematic and effective border control for 1994 and beyond. The concept behind this new strategy is "prevention through deterrence." Under the plan, the Border Patrol intends to raise the risk of apprehension to a level that will deter illegal aliens from attempting entry. The plan is to be phased in, beginning in San Diego and El Paso and then extending to other border locations.

U.S. COMMISSION ON IMMIGRATION REFORM

1994

RECOMMENDATIONS

- -

servation, and enhance their investigative and interrogative abilities. Opportunities to excel, be promoted, or receive beneficial transfers were substantially diminished, causing low morale and self esteem among agents. Agents believed that their job performance ratings and grade justifications were jeopardized by lack of adequate

criteria for supervisors to assess performance or identify and reward high achievers.

"Operation Hold the Line" further demonstrated that a prevention strategy both affects and is affected by strategies to facilitate legal entry. Ports of entry were faced with increased numbers of individuals wanting to cross legally. Local commuters applied in greater number for border crossing cards to facilitate their entry. Some of those who routinely entered without inspection had border crossing cards but found unlawful entry more convenient, given the long lines at the ports of entry.

Finally, "Operation Hold the Line" demonstrates the importance of the terms used to convey the objectives of the enforcement strategy. As noted, there was considerable concern about the label "Operation Blockade." Some of the witnesses who testified before the

Commission noted that there would have been even greater public support in El Paso, as well as in Mexico, had the pilot been called "Operation Good Neighbor" and included a component to reduce the waiting time at the bridges across the Rio Grande.

The Commission believes that a strategy of prevention is desirable and that "Operation Hold the Line" lessons should be heeded. The Commission, therefore, recommends a combination of tools to prevent illegal entries and facilitate legal ones:

• Increased resources for a comprehensive border-wide strategy to prevent illegal entry. The prevention strategy should be replicated throughout the border. To ensure the capacity to

U.S. COMMISSION ON IMMIGRATION REFORM

1994

RECOMMENDATIONS

- -

prevent illegal entries, the Commission recommends increased staff, improved technology such as sensors and infrared scopes, data systems that permit expeditious identification of repeat offenders, and such additional equipment as vehicles and radios. The technology and equipment is particularly important because personnel alone are insufficient to prevent illegal entry. Border Patrol officers must have the proper equipment to do their jobs.

The Violent Crime Control and Law Enforcement Act of 1994 provides authorization for 1995-1998 to increase the number of agent positions and necessary support positions to control unlawful immigration, including not less than one thousand Border Patrol positions in each of the fiscal years. The Commission supports this effort to increase staff.

• Increased training of border control officers to fulfill this new role. Officers must be trained primarily to execute and emphasize the strategy of prevention as opposed to primarily apprehension. As indicated in the evaluation of "Operation Hold the Line," Border Patrol experienced morale problems related to the changed role required by a prevention strategy. Officers became bored with what was in essence guard duty and the lack of diverse activities. Training programs will need to take this new function into account.

• Formation of a mobile, rapid response team to improve Border Patrol anticipation of new smuggling sites and to augment their capacity at these locations. The INS must develop a capacity to respond quickly to changing patterns of unlawful immigration along the land border. A rapid response team could handle fluctuations in illegal alien movements. Using such technology as strategically placed sensors, INS could identify zones with increased illegal entries and deploy rapid response teams

U.S. COMMISSION ON IMMIGRATION REFORM

1994

RECOMMENDATIONS

- -

to prevent further entries. A mobile team also could be deployed to patrol areas along the border that would vary to prevent smugglers and others seeking entry without inspection from predicting the site of INS presence. The team should be well-trained and able to respond efficiently to border emergencies.

The rapid response capability could be provided by permanent full-time Border Patrol officers and/or through a specially enlisted reserve. The reserve could consist of former Border Patrol agents, other law enforcement personnel, or interested citizens who annually receive at least two weeks training in how to deal with border management and other basic training. The reserve could also be available to the Border Patrol for emergency

operations.

Contingency plans also should be developed to address increased boat arrivals that may arise from improved land border enforcement. If illegal entry across the land border is reduced substantially, Mexicans and others seeking access to the United States may use sea routes instead.

• Use of fences to reduce border violence and facilitate enforcement. However, the Commission does not support the erection of extraordinary physical barriers, such as unscalable walls, unless needed as a last resort to stop violence when other means have proved ineffective. Chain-link fences have long been used to mark the U.S.-Mexico border. During the past several years, however, more substantial barriers have been constructed to help the Border Patrol more effectively control illegal entries. Section 542 of IMMACT authorizes an appropriation for the "repair, maintenance, or construction on the United States border, in areas experiencing high levels of apprehensions of illegal aliens, of structures to deter illegal entry to the United States." A January 1993 report prepared by Sandia National Laboratories urged greater use of heavily patrolled

U.S. COMMISSION ON IMMIGRATION REFORM

1994

RECOMMENDATIONS

- -

barriers. Additionally H.R. 2519, which passed on October 14, 1993, instructed the Border Patrol to work with certain border communities on the design and construction of barriers that are acceptable to all interested parties. Construction of border barriers must be coordinated with the International Boundary and Water Commission [IBWC]. This body is responsible for the marking of the boundary with monuments and giving guidance to agencies on where structures can be built. The IBWC has offices on both sides of the border and works jointly with Mexico, U.S. Customs, and the INS. The IBWC also has the responsibility to assess environmental impacts on the building of structures on the land border.

More substantial barriers have been used effectively in San Diego to reduce border violence and to deter illegal aliens from running across the interstate highway that leads to Mexico. Fourteen miles of solid fence now runs along the border between San Diego and Tijuana. Additionally, in October 1993, U.S. Army and Navy construction personnel began to lay the foundation of an additional 450-foot extension west onto Imperial Beach and into the Pacific Ocean. Barriers assist the Border Patrol in channeling and directing aliens to locations where they can be

deterred or apprehended more easily, while at the same time reducing crime and violence at the border.

The Commission believes that fences, such as those erected

in San Diego, have a role in aiding in the deterrence of illegal crossers. However, it is important to minimize any negative messages and strained relations with Mexico and "sister" communities that might result if physical barriers are of extraordinary size. Such barriers could falsely signal U.S. isolationism during a period of growing economic interdependence and enhanced binational relations.

U.S. COMMISSION ON IMMIGRATION REFORM

1994

RECOMMENDATIONS

- -

• Systematic evaluation of the effectiveness of any new border strategies by INS. The typical measurements of Border Patrol effectivenessapprehension rateshave little meaning in assessing a prevention strategy. The most effective border control strategy would produce an apprehension rate of zero. So, too, would a complete failure of border control. As the INS begins to test new strategies aimed at prevention, new evaluation techniques should be developed to measure the effects of border management efforts. The evaluation will need a range of other measurement criteria, including not only the flow of unauthorized aliens across the border, but also their effects on U.S. communities. The research methodology developed in assessing "Operation Hold the Line" provides an example of the type of analysis that will be required in the broader evaluation.

The Commission supports efforts to reduce potentially violent confrontations between Border Patrol officers and those believed to be seeking illegal entry into the U.S.

An apparent benefit of "Operation Hold the Line" was a reduction both in allegations of human rights violations against suspected illegal aliens and attacks upon Border Patrol officers. The Commission is disturbed by reports of patterns of human rights abuses along the southwest border. We recognize that the Border Patrol has a difficult and frustrating mission. Officers are victims of assaults and abuse. Bearing increased responsibility for drug interdiction, Border Patrol officers do not necessarily know if they are dealing with unarmed migrants or well-armed drug traffickers. These factors make it all the more necessary that respect for human and civil rights must be an integral part of effective management of the southwest border.

The Commission supports efforts already underway to address complaints about human rights violations, including:

The Commission supports efforts

to reduce

potentially

violent

confrontations

between

Border Patrol

officers

and those

believed

to be seeking

illegal entry

into the U.S.

The Commission supports efforts already underway

to address

complaints about human rights

violations.

U.S. COMMISSION ON IMMIGRATION REFORM

1994

RECOMMENDATIONS

- -

• Increased training and professionalism of Border Patrol officers to enable them to respond appropriately to potentially violent situations. INS management must demonstrate clearly and decisively, both in policy and in administrative response to misconduct, that abuse of human and civil rights will not be tolerated. INS officers must receive comprehensive training on human and civil rights. There must be careful screening of job applicants, expanded training on civil rights, human relations, and general arrest authority, and strong managerial support for respect of human rights.

• Improved procedures for adjudicating complaints of Border Patrol abuses. The most effective way to monitor the success or failure of policies designed to eliminate human rights abuses is a credible, effective complaint procedure that provides speedy resolution to complaints of misconduct. The credibility of the system requires careful selection of investigators and use of sound investigation procedures. The system must also be open to public monitoring to insure its independence.

Prior to recent regulations, there was no clear line of authority for the processing of civil and human rights complaints against the INS, and agencies within the Department of Justice viewed their roles in the complaint process differently. Section 503(a)(5)(B)(iv) of the Immigration Act of 1990 required the Attorney General to publish final regulations that "establish an expedited, internal review process for violations of such standards [for use of deadly force and enforcement activities of the INS], which process is consistent with standard agency procedure regarding confidentiality of matters related to internal investigations." Final regulations were published in August 1994 for establishing an expedited internal review process for alleged violations of standards for enforcement activities such as use of force, interrogations, arrests, transportation and detention. The

U.S. COMMISSION ON IMMIGRATION REFORM

1994

RECOMMENDATIONS

- -

INS' Office of Internal Audit [OIA] has responsibility to coordinate the disposition of allegations referred to the Service. Investigations are also conducted by the Department of Justice's Office of Professional Responsibility and the Office of Inspector

General. The regulation also provides procedures for lodging complaints, for expedited processing of complaints, and for handling unsubstantiated complaints.

• Mechanisms to provide redress or relief to those subjected to improper actions. In February of 1994, the INS announced the establishment of a Citizen's Advisory Panel [CAP] to address allegations of abuse by INS employees, to provide recommendations to the Attorney General on ways to reduce the number of complaints of abuse made against employees of the INS, and to review systems and procedures in the INS for responding to complaints of abuse. The panel will be comprised of thirteen voting members. Four, including the INS Commissioner (who chairs the panel) will be from the Department of Justice, and the remaining members will be private citizens concerned about civil rights, human relations, immigration issues, and ethics in public service. The CAP also consists of two nonvoting members: the INS Director of the Office of Internal Audit as the INS liaison representative; and a Mexican Consulate or Embassy official, representing the government of Mexico in a permanent advisory capacity.

CAP meetings will be held at least semiannually and CAP will prepare an annual report to include all statistics regarding the number and type of civilian complaints accepted and reviewed. The Citizen's Advisory Panel is to terminate two years from the date of its establishment and it is anticipated that it will complete its objectives within that time. The Commission will observe the operation of the CAP and report on its progress in addressing allegations of abuse.

U.S. COMMISSION ON IMMIGRATION REFORM

1994

RECOMMENDATIONS

- -

• More effective protection of Border Patrol officers from violence directed at them. Among those with whom the Border Patrol comes into contact are individuals who will use all means, including violence, to enter the United States. Violence is particularly high when those attempting illegal entry are engaged in other illegal activities such as drug smuggling. The traditional enforcement strategies often increased the risk to Border Patrol officers because they focused on the pursuit, apprehension and interrogation of those suspected to be illegal aliens. One of the most significant results of a prevention strategy, such as, "Operation Hold the Line," is reduced interaction or encounters between the Border Patrol and suspected illegal border crossers. Nevertheless, Border Patrol officers will continue to be targets of violence. Steps should be taken to reduce this risk as much as possible, for example, through continued efforts to deter illegal entry and reduce confrontation, enhanced training of Border Patrol officers, selected use of barriers (as discussed above),

and diplomatic activities aimed to enlist the Mexican government in the arrest of smugglers and others who may engage in violent actions.

The Commission believes that port of entry operations can

be improved.

Legal entry should be facilitated for the country to benefit from trade and commerce, tourism, and visits of family and friends. The Commission believes that an integral part of controlling illegal entry is facilitating legal entries. On its site visits to San Diego and El Paso the Commission witnessed firsthand congested ports of entry. We believe that more can, and must, be done to overcome the problems that impede legal entry. More specifically, the Commission supports:

• Additional resources for inspections at land border ports of entry. The Commission believes that additional resources should

The Commission believes that

port of entry

operations

can be

improved.

U.S. COMMISSION ON IMMIGRATION REFORM

1994

RECOMMENDATIONS

- -

be used to staff land ports of entry with sufficient inspectors to open all needed booths during peak periods. Although new staff positions were authorized and appropriated in FY 1995 to augment INS inspections capacity along the land borders, still more personnel is needed to alleviate congestion and facilitate legal movement. In addition, INS and Customs should assess where additional ports of entry should be opened.

As with the prevention of illegal entry, the facilitation of legal entry would benefit from improved technology. Additional information on this subject is presented in our recommendations on inspections at airports.

Commuter lanes, now being tested along the U.S.-Canadian border, should be pilot tested along the southern border as well. The purpose of the Dedicated Commuter Lane [DCL] pilot program is to find a better way to deal with congested ports of entry and facilitate legal entries. Under this program, low-risk commuters who cross the border at least once a week (people who live in Canada and work in the United States, for example) can purchase $25 stickers that are placed on the windshield of their automobiles, allowing them to use the DCL. Low-risk commuters are persons who enter the United States legally and have no immigration or customs violations and no criminal record. The INS agent or Customs officer has a record of the make and model of their cars and descriptions of the drivers and registered passengers, if any. Although, prior to FY 1995, appropriations language prohibited DCLs on the southern land border, efforts by San Diego government and business leaders have persuaded Congress to permit a pilot program in Otay Mesa. The Department of Justice appropriations for 1995 allow INS and the Customs Service to test the feasibility of a

commuter-type lane in the San Diego area. These programs should be assessed systematically to ensure that they meet the

U.S. COMMISSION ON IMMIGRATION REFORM

1994

RECOMMENDATIONS

- -

twin tests of border management: facilitation of legal entry and deterrence of illegal entries.

• An expedited adjudication and issuance process for the Border Crossing Card [BCC]. Residents of Mexico and Canada who have occasion to enter the U.S. frequently may qualify for a Border Crossing Card that may be issued by a consular or immigration officer.² The card authorizes the holder to visit within twenty-five miles of the border for up to seventy-two hours without further documentation. Persons holding an INS BCC and wishing to go further or stay longer must apply for and be granted an additional authorization, an I444 form that allows them to stay up to thirty days and to travel freely in Arizona, California, Nevada, New Mexico and Texas. BCCs facilitate legal entry because INS or the Department of State prescreen those holding the cards. In Mexico, the State Department tends to issue a B-1/B-2/BCC that allows the visitors to travel further into the U.S. without an additional permit. Qualifications for this combination card and for a BCC are the same.

The task of adjudicating applications for BCCs is assigned to certain Department of State posts and INS land border ports of entry [POE]. INS issues BCCs at all land border POEs on the Mexican border in the following way: an applicant submits an application with evidence of Mexican citizenship and residence; an INS officer conducts a personal interview, completes a record check, obtains a signature and fingerprint data, and forwards these forms to the Immigration Card Facility, which produces the card and mails it to the POE for issuance. Most POEs pro

²Unlike Mexicans, Canadian citizens and landed immigrants from Commonwealth countries are not required to have a visa to enter the U.S. BCCs are sometimes requested by Canadian truckers or other commercial drivers to expedite their admission. The Department of State also issues BCCs to non-Commonwealth landed immigrants in Canada. Resources for adjudication of INS Canadian BCCs are not an issue as annually only approximately 2,000 Canadian BCCs are issuedas opposed to 200,000 Mexican BCCs.

U.S. COMMISSION ON IMMIGRATION REFORM

1994

RECOMMENDATIONS

- -

cess applications by appointment only. Due to insufficient staff at the POEs and the fluctuating traffic levels, BCCs are not adjudicated and issued expeditiously. Although interviews occur daily, many Mexicans must wait months to be scheduled.

The INS is currently taking steps to reduce the waiting time in issuing BCCs. Attempts are being made to streamline and partly automate the issuance process. (The Department of State has same-day turnaround in issuing its BCCs.) INS issued 173,533 BCCs in 1992 and 165,349 in 1993. Approximately 21 percent of the applications were denied for various grounds of excludability, including fraud or insufficient evidence of residence or economic solvency. Some districts have up to a seven-month wait for an interview. Additionally, there is an average three to six month wait for the card to be returned from the Immigration Card Facility. Some districts do issue temporary cards on the approval of the application. Though INS BCCs may take longer to acquire, their issuance is popular with many Mexicans because a passport is not required. The Department of State requires a valid Mexican Federal Passport, which many people do not have and are not willing to pay for, to cross the border.

To address the problem of issuing the BCCs in a more expeditious manner, the Commission encourages negotiations between the U.S. and Mexico to amend the bilateral treaty and permit collection of fees to be used exclusively for the issuance and adjudication of the card. The existing Agreement on Passport Visas between the U.S. and Mexico bars the U.S. from charging Mexican citizens a fee when they apply for the issuance of a border crossing card. The agreement is silent on whether a fee may be charged for the replacement of lost, stolen, or mutilated cards. It is also not clear if a fee can be charged on a voluntary basis to individuals who wish to have expedited processing of their application. To charge such a fee requires negotiation of

U.S. COMMISSION ON IMMIGRATION REFORM

1994

RECOMMENDATIONS

- -

an amendment to the treaty by the Secretary of State. The Department of State appropriations for 1994 also prohibit charging a fee to a citizen of a NAFTA signatory country. The appropriations language provides authority for collecting a fee to process machine-readable documents with the prohibition for NAFTA partners. This legislation would also require amendment.

• Further steps to ensure better that the BCC is not misused by legal crossers who engage in unauthorized employment after entry. The Commission is troubled by evidence of substantial misuse of border crossing cards. In 1993, 24,236 cards were intercepted after issuance for counterfeiting, alteration, use by impostors, or violations of the conditions of usage. Prior to 1990, INS BCCs did not have an expiration date and these continue to remain valid until revoked. Since 1990, INS BCCs are valid for ten years. Beginning in January 1995, all Department of State BCCsboth new BCCs and BCCs issued prior to January 1995will be valid for ten years from the date of issuance. Given the long waiting time for issuing BCCs, revoking older ones may be impractical for INS. INS should, however, assess the time and resources that would be necessary to get all BCC holders onto the ten-year cycle.

To further combat unauthorized work by BCC holders, the Commission suggests that each BCC contain the legend indicating it is "not for work authorization," as currently appears on INS-issued cards. Although the machine-readable visas do indicate that they are not a work permit, the Department of State combination BCCs, which are stamped in a Mexican passport, do not contain the legend. Additionally, because some INS BCCs have no expiration date, some older ones also do not have the legend.

• Development of a land border user fee to pay for needed improvements in the inspection of border crossers, with fees to

U.S. COMMISSION ON IMMIGRATION REFORM

1994

RECOMMENDATIONS

- -

be used exclusively to facilitate land border management.

Section 286 of the Immigration and Nationality Act [INA] authorizes the Attorney General to establish a pilot land border inspection fee on the northern border. The Office of Management and Budget [OMB] Circular A-25 has been interpreted to provide INS the authority to collect a land border fee that is directly related to the inspections services and benefits provided to an identifiable recipient. The fee level must cover the total cost of land border inspection, meaning INS and U.S. Customs costs.

There is no existing statutory authority to collect fees on the southern border. Presently, three immigration bills have been introduced in the Senate that would establish land border user fees, ranging from $1-$5 to an amount necessary to maintain and operate facilities and services.

The Commission supports the concept of a user fee at both borders if the fee revenue is used exclusively to facilitate land border management and does not disrupt the flow of traffic at ports of entry. A land user fee as small as $1 has the potential to generate millions of dollars for improved land border inspections.

Moving forward with instituting a land border user fee requires addressing the following issues. First, the amount of the fee must be set. The fee could be set to cover costs or for a set amount. If the fee is cost-based, setting it must take into account not only the funding needed for current inspections, but also additional funds to facilitate legal entry. Also to be determined is whether the fee should be charged on a per-capita basis (that is, covering every individual entering the country regardless of their means of entry) or on a vehicle basis (that is, one fee to cover all persons within a vehicle). In addition, consideration should be given to setting a commuter rate for individuals or vehicles that cross regularly.

U.S. COMMISSION ON IMMIGRATION REFORM

1994

RECOMMENDATIONS

- -

Second, logistical issues related to the collection of fees must be addressed. A land user fee will speed entry only if the collection is designed in a way that does not itself become an impediment. It would be unfortunate if the additional funds available for facilitating inspections went into the collection of fees rather than the opening of new booths and ports of entry. Also to be determined is who should collect the feesthe INS or Customs inspector, an independent contractor working for the government, or others. The placement of toll booths must also be determined.

Third, the impact of fees on our relations with Canada and Mexico must be assessed. NAFTA does not appear to bar user fees for the inspection of nationals from Canada and Mexico. The legislation implementing NAFTA explicitly removed the exemption from customs user fees originally granted to raise funds to offset lost tariffs for airline passengers from these countries. Bilateral treaty arrangements with Mexico preclude certain types of fees, however. In addition, a land border user fee poses greater burdens on border crossers than do airport fees, particularly for daily commuters. Nevertheless, since the purpose of the fee is to facilitate movements across the land borders, it may well be in all three countries' interest to cooperate in devising a mutually beneficial fee arrangement. An international arrangement or treaty could be drafted to have revenue from a land user fee shared among the three countries to support improved inspections capacity at ports of entry. Arrangements could also be made that would permit border crossers to pay in one direction only, as is done to reduce congestion at many highway, bridge, and tunnel tollbooths.

Fourth, the use of technology should be assessed. The Dedicated Commuter Lane pilot program in Blaine, Washington, employs a sticker that is purchased and placed on the wind

U.S. COMMISSION ON IMMIGRATION REFORM

1994

RECOMMENDATIONS

- -

shield. A similar windshield card that automatically deducts the fare could be investigated for use.

The Commission realizes that the fee issue is politically and diplomatically delicate. Residents of border communities would resent paying a fee without assurance that they would, in return, benefit from improved border management. As a border fee affects their nationals, Canadian and Mexican officials must be consulted. Nevertheless, the Commission believes it worthwhile to work through these logistical, political, and diplomatic constraints because such a fee represents the best way to raise revenues to facilitate legal border crossings.

The Commission supports increased coordination on border issues between the governments of the U.S. and Mexico.

Presently there are a number of efforts to increase coordination between the United States and Mexico on immigration matters. The Bi-National Commission, in which representatives from the U.S. and Mexico meet to discuss border issues, is one such effort. The Commission views these discussions favorably. They promote greater cooperation between the two governments in solving problems of mutual concern. In particular, the Commission encourages:

• Continued cooperation in antismuggling efforts to reduce smuggling of people and goods across the U.S.-Mexico border. Alien smuggling is a concern on both sides of the border. Some smuggling is related to the issue of third-country nationals discussed below. Other smuggling operations focus exclusively on Mexicans. Smugglers often put migrants' lives in danger, something that neither country can tolerate. The United States and Mexico should continue to cooperate in identifying smuggling rings, to share intelligence about the smuggling of third-country nationals, and to collaborate in efforts to stop smuggling.

The Commission supports

increased

coordination

on border issues between the

governments

of the U.S.

and Mexico.

U.S. COMMISSION ON IMMIGRATION REFORM

1994

RECOMMENDATIONS

- -

• Bilateral discussions that take into account both U.S. entry and Mexican exit laws in devising a cooperative approach to regulating the movements of people across the U.S.-Mexican land border. Both the governments of the U.S. and Mexico require that all entries into their countries be made through legal ports of entry. The Mexican General Law of Population also requires that all departures from Mexico be made through established ports of entry/departure. The Commission encourages binational cooperation in dealing with unauthorized crossings between the two countries in light of this legislative history and the mutual interest in resolving problems related to unauthorized migration.

• Cross-border discussions and cooperative law enforcement efforts among federal, state, and local officials of both countries to develop cooperative approaches to combat violent crimes and auto and cargo theft along the border. Border violence is another U.S.-Mexican mutual concern where substantial progress has already been made. Five border liaison groups (Tijuana/San Diego; Hermosillo/Nogales; Ciudad Juarez/El Paso; Nuevo Laredo/Laredo and Matamoros/Brownsville) have been set up to deal with such border problems as violence, accidental police incursions, and auto theft.

The Border Patrol and the San Diego Police Department work with a Mexican border law enforcement team called Grupo Beta. The U.S. and Mexican agencies communicate with each other daily and cooperate to combat murder, rape, robbery, drug trafficking, and rock throwing incidents. Since the coordination

of these units began a few years ago, violence along the border has diminished.

Auto and cargo theft is a major issue among border communities. Cooperative efforts here also produce results. For example,

U.S. COMMISSION ON IMMIGRATION REFORM

1994

RECOMMENDATIONS

- -

in Texas under the Automobile Theft Prevention Authority, U.S. and Mexican authorities develop strategies for specialized auto theft prevention and coordinate information to solve these thefts. These cooperative efforts have slowed down auto thefts in certain border areas. The Commission supports continuation of these programs and urges the formation of other cooperative approaches, such as ones to address train cargo theft.

• Continued U.S. cooperation and support for Mexican efforts to address the problem of third-country nationals crossing Mexico to come to the United States. Residents of a number of countries, particularly Central American, first enter Mexico and then try to enter the United States. It is in neither country's interest to have large numbers of illegal aliens entering Mexico solely for the purpose of attempting to gain entry to our

country. Such movements present Mexico with her own problems in border enforcement. An unknown number of these third-country nationals remain in Mexico because they are unable to make it to the United States. A still larger number are believed to reach and enter this country. The U.S. and Mexico are already cooperating in programs designed to deter entry of third-

country nationals into Mexico. The two governments also

cooperate in the repatriation of illegal aliens from Mexico

to their home countries. The Commission supports these

cooperative endeavors.

Airports

The Commission supports a combined facilitation and enforcement strategy that would prevent the entry of unauthorized aliens

while facilitating legal admissions at U.S. airports as efficiently

as possible.

The Commission supports

a combined

facilitation and enforcement

strategy

that would

prevent the

entry of

unauthorized

aliens

while facilitating

legal admissions

at U.S. airports

as efficiently

as possible.

U.S. COMMISSION ON IMMIGRATION REFORM

1994

RECOMMENDATIONS

- -

As in land border management, the principal inspection responsibility at airports is to identify and prevent the entry of inadmissible persons while simultaneously expediting the entry of authorized travelers.

In 1993, some fifty-five million travelers were inspected at U.S. airportstwenty-five million citizens and thirty million aliens. The vast majority of these aliens were admissible; they came as tourists, business travelers, permanent residents, students, etc. A smaller number of aliens seeking entry at airports do so with fraudulent or no documents or are otherwise inadmissible. In 1993, a total of 45,095 aliens was denied admission at U.S. airports. The size of the inspection workload shows the importance of maintaining an

efficient approach to the facilitation and enforcement at air ports

of entry.

In addition to the federal agencies, the INA imposes on transportation lines bringing aliens to the U.S. specific statutory responsibilities. These include: preventing unauthorized landing any time or place other than as designated by the Attorney General; detaining and deporting alien stowaways and transits without visas [TWOVs]; furnishing a complete list or manifest of arriving passengers to an INS officer, at the port of entry and upon departure; and preventing inadmissible passengers, such as aliens not in possession of valid passports and visas, persons excludable because of public health reasons, and aliens previously excluded or deported and not eligible to apply for readmission from entering the U.S.

The Commission's recommendations offer ways in which the inspection agencies and the airline carriers can enhance their current approach to air passenger operations and inspections. Their operations are moving toward incorporating more advanced technologies as they become available. The successful implementation of these new inspections mechanisms depend on the coordinated efforts between

U.S. COMMISSION ON IMMIGRATION REFORM

1994

RECOMMENDATIONS

- -

federal government inspections, document-issuing agencies, and the airline industry. More specifically, the Commission supports the following:

• The use of new technologies to expedite the inspections process and improve law enforcement including more efficient processing of travellers with machine-readable documents. Technological advancements provide an opportunity to speed travelers through the inspection process while still identifying individuals who should be refused admission. The Commission supports the following technological initiatives already being developed or actually used in the nation's airports.

Interagency Border Inspection System. At airports, INS inspects and performs a database query for all individuals arriving on common carriers. The database for this query is the Interagency Border Inspection System [IBIS] that provides an integrated communications support system for the U.S. border security agencies with inspection responsibility. IBIS has consolidated lookout records for more than twenty-five federal agencies into a national automated border lookout database and provides on-line access to the National Crime Information Center and the National Law Enforcement Telecommunications System. Approximately 90 percent of arriving air passengers were processed through IBIS-equipped ports of entry during FY 1993.

Advanced Passenger Information System. Some airlines and foreign governments currently use a subsystem of IBIS to collect passenger information before departure. This database is the Advanced Passenger Information System [APIS] that provides an electronic check of air passengers before their arrival in the U.S. The airlines electronically transmit their passengers' names and passport details to INS and the

U.S. COMMISSION ON IMMIGRATION REFORM

1994

RECOMMENDATIONS

- -

Customs Service where they are checked against the "lookout" (IBIS) databases. INS inspectors at U.S. international airports then access the electronic passenger manifest and IBIS results before each flight arrives.

The electronic transmission of passenger information to the INS prior to an airliner's arrival in the U.S. permits pre-arrival screening of the passengers, helps expedite bona fide travelers, and provides many advantages to the U.S. inspections agencies. It saves a considerable amount of inspection time and processing by INS and Customs as they no longer have to do a full computer query at the airport; it serves as an early warning mechanism to apprehend terrorists, drug traffickers, fugitives, and other aliens ineligible for admission; and it improves security at the busiest international airports. As APIS proved successful in helping INS to process passengers more efficiently at U.S. airports, its use was expanded by INS to provide dedicated primary inspection lanesBlue Lanesfor arriving passengers prechecked into the APIS database.

Since the Blue Lanes provide generally quicker, more efficient inspections, there are international passengers who have not been prechecked but go to the Blue Lane for processing because it is shorter. The INS and carriers are cooperating to develop a process that limits Blue Lane access only to qualified or APIS-prechecked passengers.

Currently, approximately 24 percent of all air passengers are processed through APIS. Blue Lanes are used at twenty-four U.S. international airports for more than three hundred flights daily. Additionally, seventeen airlines and the governments of Australia and New Zealand use APIS for advanced passengers information gathering.

U.S. COMMISSION ON IMMIGRATION REFORM

1994

RECOMMENDATIONS

- -

Automated Inspections. Automated inspections are also being developed and expanded. Currently INS has a pilot Passenger Accelerated Service System [INSPASS] program that uses a card encoded with identifying biometric information to facilitate the entry of frequent fliers into the U.S. at designated airports of entry. This program is being tested at three airports: New York's JFK International, Newark International, and a preclearance facility at Toronto International. To participate, applicants must be citizens of the U.S., Canada, Bermuda, or a Visa Waiver Pilot Program [VWPP] country, and they must travel on business to the United States three or more times per year. Applications may be obtained from participating airlines (e.g., British Airways and Delta Airlines), from INSPASS enrollment centers at participating airports, or from INS through the mail. Applicants are interviewed at INSPASS enrollment centers where their "hand geometry" is electronically recorded. Approved applicants are given an INSPASS card valid for one year. When the traveler arrives at an INSPASS airport kiosk equipped with a card reader and a hand geometry scanning device, the previously captured biometric data establishes identity and admission to the U.S. in a fraction of the time it normally takes to be inspected and admitted to the U.S.

As of July 29, 1994, 29,928 people were enrolled in the INSPASS. INS expects to complete an evaluation of the program by September 30, 1994, and to make recommendations on a final prototype.

Electronic Arrival and Departure Records. In addition to supporting these technological innovations, the Commission supports efforts to computerize the Form I-94 landing card. INS requires all air and sea arrivals to complete a Form I-94, the arrival and departure record. This paper form acts as a

U.S. COMMISSION ON IMMIGRATION REFORM

1994

RECOMMENDATIONS

- -

manifest and also documents a nonimmigrant's arrival and departure record. The I-94 must be filled out by all passengers except U.S. citizens, lawful permanent residents of the U.S., and aliens with immigrant visas.

At the port of entry, each nonimmigrant passenger presents a visa (unless a national from a visa waiver country) and the completed I-94 to an INS inspector; the inspector stamps the class of admission and port of entry on the form, and tears off the arrival portion and sends it to a central data processing facility; the departure section of the form is usually stapled into the passport and collected at departure to transmit to the data processing facility for matching to the arrival section of the form.

Legislation (H.R. 3363) to eliminate the paper landing card and save manpower and administrative costs to both INS and the airlines has been introduced in the Congress. Computerizing arrival and departure informationrather than relying on the paper formpresents many advantages. Most importantly, computer checks will make determination if individual passengers have left the country prior to their required departure date easier than labor-intensive paper form matching to determine if individual visa holders have departed or have overstayed the terms of their visa. Exit controls are now one of the weakest parts of the inspections process. The computerization of the Form I-94 and other initiatives to improve exit control for aliens should be explored as a high priority.

Automated Machine-Readable Documents. The Commission supports expansion of the automated, machine-readable document system that examines passports, visas, and alien resident cards of all individuals arriving at U.S. airports to

U.S. COMMISSION ON IMMIGRATION REFORM

1994

RECOMMENDATIONS

- -

include those aliens departing as well. Installing and supporting such a system allows for efficient handling of many passengers in a short time, facilitates border inspections through more computerized and less manual passenger inspections, and reduced time needed to inspect and verify passenger status.

The installation of Machine Readable Visas [MRVs] technology has become a high priority for the U.S. government. According to the Department of State, 57 percent of the nonimmigrant visas currently issued by the U. S. are

machine-readable. Public Law 103-236 signed by President Clinton aims at a 100 percent issuance rate.

Issuance of machine-readable documents is the first step in improved inspection; the capacity to read the documents is the second step. Through an innovative loan policy of the Customs Service, INS and the airlines have increased the available number of document readers. The major U.S. airlines have the equipment and INS currently has 1,200 document readers at 98 ports (124 sites). During 1995-1996, another 12,000 readers are scheduled to be installed at all overseas and U.S. domestic sites. Using document readers to access the database-stored information facilitates coordinated efforts between agencies and all airports of entry can process travelers more efficiently.

• Programs that enhance the capacity of airline carriers to identify and refuse travel to aliens seeking to enter the U.S. on fraudulent documents. The Commission supports the Carrier Consultant Program and other coordinated efforts to maintain complete, accurate, and reliable APIS data and improved lookout data systems. Under the Carrier Consultant program, INS trains foreign government officials and airline personnel to screen

U.S. COMMISSION ON IMMIGRATION REFORM

1994

RECOMMENDATIONS

- -

passengers to detect fraudulent or no U.S. immigration documents. In some instances an experienced immigration officer may be assigned to foreign airports boarding high volumes

of inadmissible passengers for arrival in the U.S. to monitor

flights and assist airline personnel in screening passengers

and documents.

A common problem for carriers has been document flushingthe in-flight destruction of documents used by a passenger to board an airplane. Upon arrival in the United States, the individual can then request asylum, voluntarily return to the point of embarkation for the U.S., or continue efforts to illegally enter the country. The air carriers are fully responsible for bringing these inadmissible aliens to the U.S., regardless of whether or not their staff reviewed the passenger's documents prior to departure for the U.S. Before 1991, the INS considered these arriving passengers stowaways and the carriers were also liable for their detention. Since 1991, however, the INS policy has been that these aliens are not considered stowaways if the airlines reviewed the documents. Air carriers remain liable for fines. Some air carriers departing from high risk foreign airports instruct employees to duplicate the visas and passports of all passengers prior to departure, collect and hold all documentation once passengers board, or take other precautions to screen out document flushers and establish that the passenger is not a stowaway. Virtually all U.S. carriers and many foreign carriers instruct employees to duplicate passenger documents.

• Continued government-airline industry discussions on improving inspections that have led to innovative proposals. Currently, the U.S. border inspection agencies meet periodically with the air travel industry to discuss issues ranging from training programs, to improving awareness of changes in immigration

U.S. COMMISSION ON IMMIGRATION REFORM

1994

RECOMMENDATIONS

- -

law and border enforcement practices, to carrier fines that result from the transport of inadequately documented aliens.

The U.S. government and the air travel industry have developed a strategy"International Air Passenger Operations 2000"for improved operations in the next century, including expanded access to lookout databases, expanded use of image technology, and development of electronic capture of arrival and departure information in lieu of paper documents.

Working groups, such as the Annual User Fee Advisory Committee [AUFAC] have been established by statute. Other groups have grown out of necessity and airline and federal agency willingness to address inspection concerns as they arise and to develop strategies to best handle changes in policy or procedure. Federal agencies also meet with carriers on an impromptu basis, for example, when an air carrier voices specific concerns.

The Commission encourages these continued discussions between the government and the airline industry.

• Development of a system for mitigation of penalties or fines for those carriers that cooperate in screening and other programs and demonstrate success in reducing the number of unauthorized aliens they carry. Although a carrier is not responsible for detention of an alien without travel documents when it is determined that the alien is not a stowaway, the carrier can still be fined for bringing the passenger to the U.S. without proper documents. The responsibility of air carriers for the delivery and arrival of an inadequately documented alien is one of strict liability. When a passenger arrives without valid documents, the carrier shall be liable to pay the fine or attempt to prove that the violation did not occur. Under section 273 of the INA, they are required to pay a $3,000 fine for each of these

U.S. COMMISSION ON IMMIGRATION REFORM

1994

RECOMMENDATIONS

- -

aliens to whom they grant transit to the United States. No

mitigation provisions exist for the fines described in the INA

on bringing alien passengers without valid documents to the United States.

The airline industry has filed a petition with the INS that proposes INS development of a regulation clearly defining guidelines that airlines must follow to screen boarding passengers. The petition proposes that carrier compliance with the standard would alleviate penalties. INS has taken the position that more government regulation is not needed, suggesting that the airlines devise more responsive, creative, and flexible procedures and standards to prevent improperly documented passengers from boarding their flights.

One legislative proposal, the Carrier Cooperative Initiative, offers cooperating airlines relief from the fine system in a "carrot and stick" fashion: the airlines agree to assist INS more actively in preventing the entry of improperly documented aliens, e.g., checking travel documents twice before boarding and/or immediately before deplaning. Other examples of airline initiatives that could warrant mitigation of fines include training personnel to prevent/deter passengers from boarding with improper travel documents and instituting airline remedial or corrective measures to prevent recurrence after a fine was imposed. If the statute is not amended to allow mitigation, INS could agree to exercise prosecutorial discretion and not impose the $3,000 per person fines if improperly documented aliens were still able to enter despite reasonable airline prevention efforts. Proposed legislation to amend the statute would provide for mitigation and includes a modification of this initiative. It would require INS and airlines to sign a memorandum of understanding [MOU] and conduct a six-month review to determine if fraud was re

U.S. COMMISSION ON IMMIGRATION REFORM

1994

RECOMMENDATIONS

- -

duced before fine mitigation was allowed. Large-scale fraud recurrence would cause fines to be reinstated.

The U.S. Customs Service currently has explicit statutory authority to mitigate or remit penalties for violations. The Customs guidelines allow mitigation when the fine is incurred without negligence or intent to defraud or where circumstances warrant relief, for example, carrier record of infrequent occurrence of violations about traffic volume, contributory government error (bad advice).

The Commission supports the concept of mitigation of penalties and believes that the standard for mitigation should be evidence that the airline is actively cooperating in efforts to refuse travel to inadmissible passengers and demonstrating a low number of inadmissible passengers actually carried.

• Making INS, not the carrier, responsible for the actual physical custody of inadmissible air passengers. Section 237 of the INA outlines carrier responsibilities for detaining, delivering, or deporting alien passengers when ordered. Carriers are not only fined, but are liable for detaining unauthorized alien passengers. The INS requires that carriers must keep in custody (i.e., detain) certain categories of arriving passengers who request political asylum pending determination of their claims. Before 1986, the INA held carriers liable for all detention costs of "inadmissible" passengers they brought to the United States. Carrier responsibilities of detention were generally relieved with the passage of the 1986 user fee amendments to the INA. The original $5 user fee to fund the INS inspection program has been increased to $6.

INS continues to impose detention responsibility on airlines for two types of excludable air travelers: stowaways pursuant to

U.S. COMMISSION ON IMMIGRATION REFORM

1994

RECOMMENDATIONS

- -

the statute; and passengers pursuant to contractual obligations who were boarded as a transit without visa [TWOV] passenger and do not depart the U.S. within the prescribed period. The TWOV program is based on an agreement the air carrier signs in order to carry passengers in immediate and continuous transit through the U.S. without visas. The program has been in existence for forty years and produces significant revenues for the carriers. INS relies on a clause in the transit program contract that outlines carrier obligations to control transit passengers until departure from the U.S. on their transit flight. The INS position is that user fee revenues do not include costs for detention of stowaways and TWOVs. The airlines contend that the Congressional intent of the 1986 Immigration User Fee provision was to absolve carriers of responsibility for detention costs of all

excludable aliens. These detention costs issues are currently being litigated in Air Transport Association v. McNary, Civ. Action

No. 92-0181.

Currently air carriers are reluctantly serving as jailers for international passengers. These air passengers are undocumented asylum seekers, and as disposition of these cases can take months, the associated costs are estimated to be $9 million per year. The Commission was presented cases of two to six months detention costs that include hotel and private, twenty-four-hour security guards where the costs exceed $27,000 to $150,000. Ironically, the penalty if the air passenger escapes is $3,000. In addition to the high costs, the Commission believes it is inappropriate for hotels to serve as jails and for airlines to serve as jailers, maintaining twenty-four-hour watches, taking care of routine housing, food, and medical needs.

Detention of aliens in exclusion hearings is more properly a federal responsibility. While the government has the authority to pass some or all of the costs of detention onto airline carriers,

U.S. COMMISSION ON IMMIGRATION REFORM

1994

RECOMMENDATIONS

- -

perhaps through fines, we believe it inappropriate for these private companies to have actual physical custody of aliens.

Interagency Coordination

The Commission recommends implementation of initiatives to improve coordination between INS and Customs, as recommended by the General Accounting Office [GAO] and the National Performance Review.

The Commission expresses its dissatisfaction with the past lack of coordination between Customs and INS, particularly at land ports of entry. This has hampered effective border management. The border congestion problem at San Diego and El Paso appeared to be caused in part by lack of coordination between the two inspection agencies. Staffing imbalances between Customs and INS, coupled with independent decisionmaking by the two agencies in how to deploy staff, creates traffic backups and operating inefficiencies at ports of entry. Given the increased flow of people and goods between the United States and Mexico, and expected further increases under NAFTA, it is imperative that coordination problems be

resolved quickly.