Reforming the enforcement of immigration law is a core component of the recommendations made by the National Commission on Terrorist Attacks Upon the United States (also known as the 9/11 Commission). The 19 hijackers responsible for the 9/11 attacks were foreign nationals, many of whom were able to obtain visas to enter the United States through the use of forged documents. Incomplete intelligence and screening enabled many of the hijackers to enter the United States despite flaws in their entry documents or suspicions regarding their past associations. According to the Commission, up to 15 of the hijackers could have been intercepted or deported through more diligent enforcement of immigration laws.
The 9/11 Commission’s immigration-related recommendations focused primarily on targeting terrorist travel through an intelligence and security strategy based on reliable identification systems and effective, integrated information-sharing. As Congress has considered these recommendations, however, possible legislative responses have broadened to include significant and possibly far-reaching changes in the substantive law governing immigration and how that law is enforced, both at the border and in the interior of the United States.
In response to the Commission’s recommendations, several major bills were introduced proposing significant revisions to U.S. immigration law and policy. The two notable bills that would revise immigration laws were H.R. 10 , the 9/11 Recommendations Implementation Act, as amended, introduced by the Speaker of the House of Representatives Dennis Hastert, and passed by the House as S. 2845 on October 8, 2004, and S. 2845 , the National Intelligence Reform Act of 2004, as amended, introduced by Senators Susan Collins and Joseph Lieberman and passed by the Senate on October 8, 2004. The Intelligence Reform and Terrorism Prevention Act of 2004 ( P.L. 108-458 ), a compromise version of these bills that included some -- but not all -- of the immigration provisions under consideration, was signed on December 17, 2004.
This report briefly discusses some of the major immigration areas that were under consideration in the above-mentioned comprehensive reform proposals, including asylum, biometric tracking systems, border security, document security, exclusion, immigration enforcement, and visa issuances. It refers to other CRS reports that discuss these issues in depth and will be updated as needed.
Reforming the enforcement of immigration law is a core component of the recommendations made by the National Commission on Terrorist Attacks Upon the United States (also known as the 9/11 Commission). The 19 hijackers responsible for the 9/11 attacks were foreign nationals, many of whom were able to obtain visas to enter the United States through the use of forged documents. Incomplete intelligence and screening enabled many of the hijackers to enter the United States despite flaws in their entry documents or suspicions regarding their past associations. According to the Commission, up to 15 of the hijackers could have been intercepted or deported through more diligent enforcement of immigration laws.
The 9/11 Commission's immigration-related recommendations focused primarily on targeting terrorist travel through an intelligence and security strategy based on reliable identification systems and effective, integrated information-sharing. As Congress has considered these recommendations, however, possible legislative responses have broadened to include significant and possibly far-reaching changes in the substantive law governing immigration and how that law is enforced, both at the border and in the interior of the United States.
In response to the Commission's recommendations, several major bills were introduced proposing significant revisions to U.S. immigration law and policy. The two notable bills that would revise immigration laws were H.R. 10, the 9/11 Recommendations Implementation Act, as amended, introduced by the Speaker of the House of Representatives Dennis Hastert, and passed by the House as S. 2845 on October 8, 2004, and S. 2845, the National Intelligence Reform Act of 2004, as amended, introduced by Senators Susan Collins and Joseph Lieberman and passed by the Senate on October 8, 2004. The Intelligence Reform and Terrorism Prevention Act of 2004 (P.L. 108-458), a compromise version of these bills that included some - but not all - of the immigration provisions under consideration, was signed on December 17, 2004.
This report briefly discusses some of the major immigration areas that were under consideration in the above-mentioned comprehensive reform proposals, including asylum, biometric tracking systems, border security, document security, exclusion, immigration enforcement, and visa issuances. It refers to other CRS reports that discuss these issues in depth and will be updated as needed.
The July 2004 report of the National Commission on Terrorist Attacks Upon the United States (also known as the 9/11 Commission) concluded that the key officials responsible for determining alien admissions (consular officers abroad and immigration inspectors in the United States) were not considered full partners in counterterrorism efforts prior to September 11, 2001, and as a result, opportunities to intercept the September 11 terrorists were missed. (1) The 9/11 Commission contended that "(t)here were opportunities for intelligence and law enforcement to exploit al Qaeda's travel vulnerabilities." The report went on to state: "Considered collectively, the 9/11 hijackers
The 9/11 Commission issued several recommendations that directly pertain to immigration law and policy. These recommendations are:
These recommendations have broad implications for immigration law and policy. Also, as Congress has moved on the Commission's recommendations, immigration-related reforms have been a key component of major legislative proposals. This report summarizes the major proposed reforms considered and adopted in the 108th Congress.
Of the several bills that sought to implement recommendations of the 9/11 Commission in the 108th Congress, two passed their respective Houses, and both of these proposed revisions to immigration law: H.R. 10, the 9/11 Recommendations Implementation Act, as amended, introduced by the Speaker of the House of Representatives Dennis Hastert and passed by the House as S. 2845 on October 8, 2004 (House-passed S. 2845); and S. 2845, the National Intelligence Reform Act of 2004, as amended, introduced by Senators Susan Collins and Joseph Lieberman and passed by the Senate on October 8, 2004 (Senate-passed S. 2845). Certain immigration-related provisions of these bills were significant sources of contention by lawmakers, curtailing immediate agreement of a compromise bill. The conference report on S. 2845 passed the House on December 7 and the Senate on December 8, 2004. (4) The Intelligence Reform and Terrorism Prevention Act of 2004 (P.L. 108-458), a compromise bill signed on December 17, 2004 includes some - but not all - of the immigration provisions that were originally under consideration.
The major areas that were under consideration in these comprehensive reform proposals are briefly discussed below. References to CRS reports that analyze these issues in depth are listed for each major area. (5) Summaries of the immigration provisions in P.L. 108-458 concludes the report.
As mentioned above, actions to identify and intercept terrorists who are attempting to enter or leave the United States are a key component of the 9/11 Commission's recommendations. In 1996, Congress required the development of an automated entry and exit data system to track the arrival and departure of aliens, but such a system has yet to be fully implemented. Following the 9/11 terrorist attacks, Congress enacted additional measures, including the USA PATRIOT Act (P.L. 107-56) and the Enhanced Border Security and Visa Reform Act of 2002 (P.L. 107-173), to encourage the more expeditious development of an automated entry and exit data system, and to further require that biometric identifiers be used in passports, visas, and other travel documents to improve their security. To keep inadmissible aliens abroad, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA, P.L. 104-208, Division C) required the implementation of a pre-inspection program at selected locations overseas under which immigration officers inspect aliens before their final departure to the United States, and authorized assistance to air carriers at selected foreign airports to help in the detection of fraudulent documents.
A number of proposals were made in the 108th Congress to improve the accurate monitoring of persons entering and exiting the United States. Many of these proposals were not specific to aliens, but covered all persons traveling to or from the United States. These proposals included:
For further discussion of these and related topics, see CRS Report RL32399, Border Security: Inspections Practices, Policies, and Issues; CRS Report RL32188, Monitoring Foreign Students in the United States: The Student and Exchange Visitor Information System (SEVIS), CRS Report RL32234, U.S. Visitor and Immigrant Status Indicator Technology Program (US-VISIT); CRS Report RL31512, Visa Issuances: Policy, Issues, and Legislation; and CRS Report RL32221, Visa Waiver Program.
A primary area of difference between House-passed and Senate-passed versions of S. 2845 concerned grounds for alien exclusion, removal, and relief from removal, as only the House-passed bill dealt extensively with these areas. The Immigration and Nationality Act (INA) establishes admission and removal criteria for all foreign nationals seeking to enter and/or remain in the United States, and also provides certain discretionary and non-discretionary forms of relief from removal, such as granting asylum or withholding removal to a country where an alien is likely to face serious persecution or torture. Starting with the Anti-Drug Abuse Act of 1988 (P.L. 100-690) and continuing through the Antiterrorism and Effective Death Penalty Act of 1996 (P.L. 104-132) and the IIRIRA, Congress has expanded the grounds of inadmissibility and deportation and the use of expedited removal, while it has also restricted relief from removal and judicial review of removal decisions. Subsequently, the Supreme Court has held that there is a strong presumption in favor of judicial review of administrative actions, and therefore, in the absence of a clear statement of congressional intent to repeal habeas corpus jurisdiction over removal-related matters, such review is still considered available. (6) Furthermore, the Court found that eliminating any judicial review, including habeas review, without any substitute form of review for pure questions of law would raise serious constitutional questions. (7)
Exclusion and Removal. After the 9/11 terrorist attacks, Congress further expanded the terrorism grounds for inadmissibility, removal, and mandatory detention in the USA PATRIOT Act in response to concerns that loopholes and inadequacies in the immigration laws were contributing to the ability of terrorists and their accomplices to travel to and remain in the United States. House-passed<108> S. 2845 sought to broaden the scope of terror-related activity making an alien inadmissible or deportable, and limit the availability of relief from removal in certain circumstances. These proposals included:
Asylum and Other Forms of Relief from Removal. The United States has long held to the principle that it will not return a foreign national to a country where his life or freedom would be threatened. Aliens seeking asylum must demonstrate a well-founded fear that if returned home, they will be persecuted based upon one of five characteristics: race, religion, nationality, membership in a particular social group, or political opinion. In addition, regulations implementing the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (hereafter referred to as Torture Convention) prohibit the return of any person to a country where there are "substantial grounds" for believing that he or she would be in danger of being tortured. Proposals to modify asylum and other forms of relief from removal include found in House-passed and Senate-passed versions of S. 2845 included:
For additional background, see CRS Report RL32564, Immigration: Terrorist Grounds for Exclusion of Aliens; CRS Report RL32276, The U.N. Convention Against Torture: Overview of U.S. Implementation Policy Concerning the Removal of Aliens; and CRS Report RL32621, U.S. Immigration Policy on Asylum Seekers.
There has been some concern that the acquisition of U.S. identification documents by terrorist aliens may facilitate their ability to engage in terrorist activities. The 9/11 Commission noted that "[a]ll but one of the 9/11 hijackers acquired some form of U.S. identification document, some by fraud...[and] these forms of identification would have assisted them in boarding commercial flights, renting cars, and other necessary activities." (8) Accordingly, the Commission recommended that national standards be set for the issuance of birth certificates and drivers' licenses to prevent their fraudulent acquisition.
The adoption of national standards for the issuance of drivers' licenses and other forms of identification has long been the subject of controversy. Although not technically an immigration policy, the concern over these forms of identification -- often referred to as "breeder documents" -- has often been linked with immigration legislation. Pursuant to � 656 of the IIRIRA, Congress provided standards for acceptance of state drivers' licenses and birth certificates when used for federal purposes. Many opponents alleged that this provision was a step towards the creation of a national identification card, and it was subsequently repealed in 2000.
In response to the 9/11 Commission's recommendations, however, a number of proposals were made to increase federal oversight over and improve the security of drivers' licenses, birth certificates, and other state-issued forms of identification. Proposals were also made to improve the security of Social Security documents and verify the identity of persons applying for benefits under the INA. These proposals to improve identification verification procedures and the security of personal identification documents included:
For further background, see CRS Report RS21953, The 9/11 Recommendations Implementation Act (H.R. 10) and the National Intelligence Reform Act of 2004 (S. 2845): National Standards for Drivers' Licenses, Social Security Cards, and Birth Certificates; CRS Report RL32127, Summary of State Laws on the Issuance of Driver's Licenses to Undocumented Aliens; CRS Report RL32094, Consular Identification Cards: Domestic and Foreign Policy Implications, the Mexican Case, and Related Legislation; CRS Report RS21137(pdf), National Identification Cards: Legal Issues; and CRS Report RL30318, The Social Security Number: Legal Developments Affecting Its Collection, Disclosure and Confidentiality.
DHS is the primary federal agency responsible for enforcing immigration laws and securing the border. The DHS Bureau of Customs and Border Protection (CBP) is responsible for patrolling the U.S. border and conducting immigration and customs inspections at ports of entry, while the DHS Bureau of Immigrations and Customs Enforcement (ICE) investigates immigration and customs violations in the interior of the country. Employees in other federal agencies also play a significant role in enforcing immigration laws and protecting border security, such as consular officers in the State Department who are responsible for screening aliens seeking visas to enter the United States from abroad. In issuing its recommendations to improve homeland security, the 9/11 Commission noted the importance of a border security system that can adequately identify persons attempting to enter the United States. A number of proposals made in response to the 9/11 Commission's findings called for the allocation of additional resources to improve border security. Of the bills implementing the 9/11 Commission recommendations, the proposals included:
For additional background on the roles of various agencies in protecting border security, see CRS Report RL32562, Border Security: The Role of the U.S. Border Patrol; CRS Report RL32399, Border Security: Inspections Practices, Policies, and Issues; CRS Report RL32566, Border and Transportation Security: Appropriations for FY2005; CRS Report RL32369, Immigration-Related Detention: Current Legislative Issues; and CRS Report RL32256, Visa Policy: Roles of the Departments of State and Homeland Security.
At the heart of the INA are the rules on which aliens may enter and remain in the United States, the conditions of their stay, and the procedures for their entry and removal. In support of this structure, federal law has concomitantly imposed civil and criminal penalties on a variety of activities -- i.e., smuggling or harboring illegal aliens, committing immigration-related document fraud to secure either entry into the United States or a benefit under the INA -- that facilitate or further violations of the legal immigration system. House-passed S. 2845 proposed to heighten criminal penalties for conduct violating or facilitating the violation of U.S. immigration law, which include increasing the criminal and immigration-related penalties for document fraud, alien smuggling, and making false claims of U.S. citizenship.
For additional background, see CRS Report RL32480, Immigration Consequences of Criminal Activity; CRS Report RL32657, Immigration-Related Document Fraud: Overview of Civil, Criminal, and Immigration Consequences; and, CRS Report RS21043, Immigration: S Visas for Criminal and Terrorist Informants.
The Intelligence Reform and Terrorism Prevention Act of 2004, the compromise version of S. 2845 that ultimately was enacted into law, included some - but not all - of the immigration provisions in both the House and Senate versions of S. 2845. The major features of the immigration-related provisions in the act are briefly discussed below.
Monitoring of Persons Entering and Leaving the United States. The Intelligence Reform and Terrorism Prevention Act requires accelerated deployment of the biometric entry and exit system to process or contain certain data on aliens and their physical characteristics. It requires an in-person consular interview of most applicants for nonimmigrant visas between the ages of 14 and 79, and also requires an alien applying for a nonimmigrant visa to completely and accurately respond to any request for information contained in his or her application. The act also expands the pre-inspection program that places U.S. immigration inspectors at foreign airports, increasing the number of foreign airports where travelers would be pre-inspected before departure to the United States. Moreover, it requires individuals entering into the United States (including U.S. citizens and visitors from Canada and other Western Hemisphere countries) to bear a passport or other documents sufficient to denote citizenship and identity.
The act requires improvements in technology and training to assist consular and immigration officers in detecting and combating terrorist travel. It (1) establishes the Human Smuggling and Trafficking Center, which includes an interagency program devoted to countering terrorist travel; (2) requires the Secretary of Homeland Security, in consultation with the Director of the National Counter Terrorism Center, to establish a program to oversee DHS's responsibilities with respect to terrorist travel; and (3) establishes a Visa and Passport Security Program within the Bureau of Diplomatic Security at the Department of State.
Grounds for Alien Exclusion, Removal, and Relief from Removal. The Intelligence Reform and Terrorism Prevention Act makes any alien deportable who has received military training from or on behalf of an organization that, at the time of training, was a designated terrorist organization. It also makes the revocation of a nonimmigrant visa by the State Department grounds for removal. The visa revocation, however, is reviewable in a removal proceeding in cases where visa revocation provides the sole ground for removal. The act makes inadmissible and deportable any alien who (1) has ordered, incited, assisted, or participated in conduct that would be considered genocide under U.S. law; (2) committed or participated in an act of torture or an extrajudicial killing; or (3) while serving as a foreign official, was responsible for or directly carried out, at any time, particularly severe violations of religious freedom. The act also requires the Government Accountability Office to conduct a study evaluating the degree that weaknesses in the current U.S. asylum system have been or could be exploited by aliens involved in terrorist-related activity.
Security of Personal Identification Documents. The Intelligence Reform and Terrorism Prevention Act requires the establishment of new standards aimed at ensuring the integrity for federal use of birth certificates, state-issued driver's licenses and identification cards, and social security cards. States may receive grants to assist them in implementing the proposed birth certificate and driver's license standards.
Allocation of Additional Resources to Improve Enforcement. The act authorizes the Secretary of State to increase the number of consular officers by 150 per year from FY2006 through FY2009 above the number of such positions for which funds were allotted for the preceding fiscal year. It also increases the numbers of border patrol agents by not less than 2,000, in each year FY2006 through FY2010, and requires a number of agents equaling at least 20% of each year's increase in agents to be assigned to the northern border. The act also increases the number of ICE investigators by not less than 800 in each year FY2006 through FY2010, and requires an increase in the number of beds available for immigration detention and removal operations by not less than 8,000 over the same period. Further, the act establishes a pilot program to test advanced technologies to improve border security between ports of entry along the northern border of the United States. It also requires the Secretary of Homeland Security to submit to the President and Congress a plan for the systematic surveillance of the southwest border of the United States by remotely piloted aircraft, and to implement such plan as a pilot program.
Penalties for Immigration-Related Fraud and Alien Smuggling. The Intelligence Reform and Terrorism Prevention Act increases criminal penalties for alien smuggling in certain circumstances and requires the Secretary of Homeland Security to develop an outreach program in the United States and overseas to educate the public about the penalties for illegally bringing in and harboring aliens.
1. (back)U.S. National Commission on Terrorist Attacks upon the United States, The 9/11 Commission Report, Executive Summary, p. 14, July 2004 (hereafter The 9/11 Commission Report).
2. (back)The 9/11 Commission Report, Executive Summary, pp. 13-14, July 2004.
3. (back)For a discussion of these recommendations, see The 9/11 Commission Report, Chapter 12.4, pp. 383-389, July 2004.
4. (back)108th Congress, 2nd Session, House of Representatives, Conference report to accompany S. 2845, H.Rept. 108-796, Dec. 7, 2004.
5. (back)For an overview of all major immigration legislation under consideration, see CRS Report RL32169, Immigration Legislation and Issues in the 108th Congress, coordinated by [author name scrubbed].
6. (back)Immigration and Naturalization Service v. St. Cyr, 533 U.S. 289 (2001).
8. (back)The 9/11 Commission Report, p. 390.
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