Order Code RS21258
Updated December 28, 2004
CRS Report for Congress
Received through the CRS Web
Border Security: U.S.-Canada
Immigration Border Issues
Lisa M. Seghetti
Analyst in Social Legislation
Domestic Social Policy Division
Summary
The United States and Canada are striving to balance adequate border security with
other issues such as the facilitation of legitimate cross-border travel and commerce, and
protecting civil liberties. Congress has taken action to improve border facility
infrastructure, increase the number of border patrol agents and immigration inspectors
at the northern border, and provide these officials with additional technologically
upgraded equipment. Congress has also taken action to track the entry and exit of
foreign visitors by mandating an automated entry/exit system, however, its anticipated
implementation at the northern border may not have an adverse impact on travel as most
Canadian nationals will be exempt from the requirements of the system. Moreover, there
have been several bi-national initiatives aimed at making the border more secure while
facilitating travel. These initiatives are outlined in a 30-point plan, which was signed by
officials from both countries in December 2001.
Introduction
The September 11, 2001 terrorist attacks and continued threats of future attacks have
directed Congress’s attention to U.S.-Canada border security-related issues. Both
countries are striving to balance adequate border security with other issues such as the
facilitation of legitimate cross-border travel and commerce, and protecting civil liberties.
Previous Congresses passed significant border security-related legislation, and issues
pertaining to the oversight of the legislation and possible policy implications for U.S.-
Canada border relations may be of interest to the 109th Congress. The 109th Congress may
also address several border security-related issues pertaining to the U.S.-Canada border
that continue to be of interest. These may include (1) more information sharing with
Canada, including joint intelligence sharing; (2) greater sharing of technology such as
fingerprint data and passport readers; (3) off-site pre-inspection and pre-clearance areas;
(4) the expansion of NEXUS for low-risk frequent travelers; and (5) improving
infrastructure at the border and ports of entry.
Congressional Research Service ˜
The Library of Congress
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Legislative Background1
Congress has taken action to improve border security at and along the northern
border. Congress has also taken action to track the entry and exit of foreign visitors by
mandating an automated entry/exit system. Following is a sample of legislation that has
been enacted into law in recent years.
Personnel, Infrastructure and Technology. The northern border extends
some 4,000 miles and is the largest of the two borders. Compared to its southern
counterpart, the northern border historically has been understaffed and lacked the
necessary infrastructure to adequately screen individuals seeking entry into the United
States. Although the southern border has seen more illegal activities over the years, there
has been growing concern over the insufficient number of personnel assigned to the
northern border, the increasing amount of illegal activity that occurs at the northern
border, and the potential for terrorists to sneak into the United States through the northern
border. There has also been concern with respect to the antiquated facilities at the
northern border and the inadequate physical infrastructure to accommodate the increasing
volume of traffic at the border. 2
Congress took action to address the aforementioned problems by passing the USA
PATRIOT Act (P.L. 107-56). The act authorized the Attorney General to triple the
number of border patrol personnel and immigration inspectors along the northern border
and authorized $50 million for the agency to make technological improvements and to
acquire additional equipment for the northern border. The Enhanced Border Security and
Visa Entry Reform Act of 2002 (P.L. 107-173) authorized additional personnel and
provided for technological and infrastructure improvements at the borders.
More recently, Congress passed the Intelligence Reform and Terrorism Prevention
Act of 2004 (P.L. 108-458), which requires the Secretary of Homeland Security
(Secretary) to increase the number of border patrol agents along the northern border by
at least 20% each year, FY2006 through FY2010. With respect to technology, the act
permits the Secretary to establish a pilot program that tests advanced technologies (i.e.,
sensors, videos, and unmanned aerial vehicles) for border surveillance between ports of
entry. The act requires the program to operate in remote areas along the northern border
and that the operation be coordinated with other federal, state, local and Canadian law
enforcement and border security agencies. The act also requires the Secretary to design
the program in such a way that it has the capability to be expanded.
Congress also passed several appropriations bills that authorized appropriations for
immigration inspectors and border patrol agents. For example, the Department of
Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act
for FY2002 (P.L. 107-77) included $25.4 million for 348 additional immigration
inspectors and $66.35 million for 570 additional border patrol agents. The Department
of Defense Appropriations Act for FY2002 (P.L. 107-117) authorized $55.8 million for
1 For additional information on immigration border security-related legislation, see CRS Report
RL31727,
Border Security: Immigration Issues in the 109th Congress, by Lisa M. Seghetti.
2 U.S. Department of Justice, Office of Inspector General,
Follow-Up Report on the Border
Patrol’s Efforts to Improve Northern Border Security, OIG Report I-2002-004.
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immigration inspectors and support staff and $23.9 million for the redployment of border
patrol agents to the northern border. The Consolidated Appropriations Act for FY2003
appropriated $25.5 million for an additional 460 immigration inspectors and $57.21
million for an additional 570 border patrol agents. The FY2004 Department of Homeland
Security Appropriations Act (P.L. 108-90) authorized $41 million in appropriations for
an additional 570 border patrol agents; $9 million for additional inspectors (number of
inspectors not specified); and $76.3 million for increased deployment of inspection
technology, among other things. The FY2005 Department of Homeland Security
Appropriations Act (P.L. 108-334) authorized $156.2 million for inspections and
surveillance technology and Unmanned Aerial Vehicles, among other things.
Automated Entry/Exit System (US-VISIT).3 Section 110 of the Illegal
Immigration Reform and Immigrant Responsibility Act (IIRIRA; Division C of P.L. 104-
208) required the Attorney General to develop an automated system to record the entry
and exit of every alien arriving in and departing from the United States. This provision
became a source of concern for border communities whose members feared that if Section
110 were implemented it would cause gridlock at border crossings. Consequently,
Congress amended Section 110 in the 105th Congress by extending the deadline for its
implementation and by prohibiting significant disruption of trade, tourism, or other
legitimate cross-border traffic once the system is in place. Congress further amended
Section 110 in the 106th Congress by delaying the system’s immediate implementation at
all ports of entry and by requiring the system to use available data to record alien arrivals
and departures, without establishing additional documentary requirements. Following the
September 11, 2001 terrorist attacks, however, Congress requested that resources be
directed to the immediate development and implementation of an automated entry and
exit control system at all ports of entry.
The Canadian government has expressed strong opposition to implementation of an
automated entry and exit data system at northern ports of entry. Notwithstanding,
Canadian citizens are exempt from some of the US-VISIT program requirements. For
example, Canadian nationals and some Canadian landed immigrants are not required to
present a passport, and are often not required to obtain a visa.4 Moreover, Canadian
nationals are generally not required to obtain an I-94 form (Arrival/Departure Record) if
they are entering the U.S. temporarily for business or pleasure.5 Canadians who enter the
U.S. for purposes other than business or pleasure (e.g., employment, trade and diplomatic
activities, etc.) are issued an I-94 form but may be able to omit their passport number and
visa information from the form, if they have not visited outside the Western Hemisphere.6
3 See CRS Report RL32234,
U.S. Visitor and Immigrant Status Indicator Technology (US-VISIT)
Program, by Lisa M. Seghetti and (name redacted).
4 Section 212(d)(4) of the INA permits the Attorney General and the Secretary of State acting
jointly to exempt certain foreign nationals from the documentary requirements to enter the United
States.
See also 22 U.S.C. §41.2 (allowing the Secretary of State and AG to waive Canadian
nationals’ visa and passport requirements if they have not visited outside the Western
Hemisphere).
5 8 C.F.R. §235.1(f)(i)).
6 See 68
Federal Register 292, 293 (citing 8 C.F.R. §212.1).
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Biometrics and Travel Documents.7 Congress first mandated biometrics in
travel documents in IIRIRA by requiring Border Crossing Cards (BCCs, now referred to
as Laser Visas) for Mexican nationals to have a biometric identifier that is machine
readable. In addition to IIRIRA, the USA PATRIOT Act and the Border Security Act
both required biometrics in travel documents in order for foreign nationals to enter the
U.S. Until recently, however, most Canadian nationals were exempt from the
documentary requirements for entry into the U.S.8
Previous Bi-National Cooperation
Both the United States and Canada have taken measures to better secure the shared
border, while preventing disruption to the flow of people. Such efforts date back to 1995
and include the following:
! A 30-point plan, commonly referred to as the “Smart Border Accord”
(signed on December 12, 2001), to secure the border and facilitate the
flow of low-risk travelers through (1) coordinated law enforcement
operations; (2) intelligence sharing; (3) infrastructure improvements; (4)
the improvement of compatible immigration databases; (5) visa policy
coordination; (6) common biometric identifiers in certain documentation;
(7) prescreening of air passengers; (8) joint passenger analysis units; and
(9) improved processing of refugee and asylum claims.
! A joint statement of cooperation on border security and migration was
signed on December 3, 2001 by representatives from the United States
and Canada. The joint statement of cooperation focused on detection and
prosecution of security threats, the disruption of illegal migration, and the
efficient management of legitimate travel.
! A mechanism for the two governments, border communities, and
stakeholders to discuss issues of border management was established in
1999, commonly referred to as the “Canada-U.S. Partnership Forum
(CUSP). The guiding principles that evolved from the discussions
include: (1) streamlining, harmonizing and collaborating on border
policies and management; (2) expanding cooperation to increase
efficiencies in customs, immigration, law enforcement, and
environmental protections at and beyond the border; and (3) collaborating
on common threats from outside the United States and Canada.
7 See CRS Report RL32234,
U.S. Visitor and Immigrant Status Indicator Technology (US-VISIT)
Program, by Lisa M. Seghetti and (name redacted).
8 In general, Canadians arriving at a designated port of entry must, in general, comply with the
biometric requirements. However, those Canadian citizens who travel on temporary visits to the
U.S. and who do not apply for admission pursuant to nonimmigrant visas do not have to supply
the biometric information currently required by law (see 69
Federal Register 468, 472). The
Intelligence Reform and Terrorism Prevention Act of 2004 (P.L. 108-458), however, requires
all
individuals traveling into the U.S. to have a passport or other document, or combination of
documents, that the Secretary of Homeland Security deems sufficient to denote one’s identity and
citizenship by January 1, 2008 (the law does not require the documents to contain a biometric
identifier nor does it require
all travelers seeking entry into the U.S. to be vetted through the entry
and exit database).
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Current Bi-National Cooperation
The U.S. and Canada have several bi-national initiatives aimed at improving border
security and facilitating the legitimate flow of goods and people. Following is a sample
of a few of these initiatives.
NEXUS. The NEXUS program permits pre-enrolled, low-risk travelers who are
either a citizen or a legal permanent resident of the United States or Canada expedited
crossing at the border by preclearing them for inspection purposes.9 Under the “Smart
Border Accord,” NEXUS will expand to every major land border crossing at the northern
border. The United States and Canada have already expanded the program to twelve land
border crossings, two Canadian international airports (NEXUS-Air), and there are plans
to expand the program to the Windsor/Detroit marina area (NEXUS-Marine).
Integrated Border Enforcement Teams (IBET). IBETs are bi-national
(United States and Canada), multi-agency law enforcement teams that target cross-border
criminal activity.10 IBETs were originally set up as a result of the 1995 join accord on
Our Shared Borders to target cross-border crimes that usually involved illicit drug
violations. The Smart Border Accord, however, expanded IBETs to designated areas
across the northern border and its focus has broadened to include counterterrorism
measures.
Shared Facilities. Prior to the events of September 11, 2001, the United States
and Canadian governments had taken measures to facilitate the pre-screening of people
(and goods) prior to their arrival at ports of entry. For example, in some instances the
countries would permit immigration (and Customs) officials to co-operate in each other’s
country.11 Such an effort has been viewed by many not only as a mechanism to facilitate
travel but also as an intervention tool that allows for preclearance activities to occur away
from the border. Such cross-border efforts, however, have not been without controversy.12
Preinspections.13 Currently, preinspections of travelers en route to a U.S. air port
of entry are allowed at seven Canadian airports.14 Although preinspections at selected
Canadian international airports have been in place for some time, under a May 2, 2003
9 Although individuals enrolled in NEXUS are precleared for inspection purposes, they are
subject to random cursory searches.
10 The core agencies involved in IBETs are the Coast Guard, and immigration, customs and law
enforcement agencies from both countries.
11 The concept of shared facilities is often used interchangeably with reverse inspections. Under
reverse inspections, inspections that are currently conducted at a U.S. port of entry are done in
a foreign country (i.e., on the Canadian side of the border crossing), whereas in a shared facility,
inspection officials from both countries are co-located in the same facility.
12 See 96-397,
Canada-U.S. Relations, by (name redacted), the section entitled “Border Security: Trade
and Commercial Concerns,” by (name redacted), p. 21.
13 Pre-inspections are immigration inspections conducted at foreign ports of embarkation by
United States authorities for passengers seeking entry into the U.S.
14 Calgary, Edmonton, Toronto, Vancouver, Victoria, Winnipeg, and Montreal (see 8CFR 103.1).
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agreement, Canada has agreed to allow travelers en route to the United States to be
inspected
directly by U.S. officials, thus bypassing Canadian inspection. This agreement
replaces a 1974 agreement and clearly identifies the authorities of U.S. inspectors.
Current Issues
Several issues have been raised when examining the need for tighter border security
while continuing to allow for the unimpeded flow of travel across the northern border.
In almost every case the need for bi-national cooperation is evident. Following is a
discussion of two such issues.
US-VISIT Program. The law requires an automated entry/exit system at all ports
of entry that records arrivals and departures of every alien entering and exiting the country
(Section 110 of the Illegal Immigration Reform and Immigrant Responsibility Act,
IIRIRA; Division C of P.L. 104-208).15 The Canadians currently do not want to
implement a similar system, however, there have been reports that the Canadian
government may introduce a plan that would have Canadian Customs officials collect exit
information on non-citizens and pass it on to U.S. officials. Such a plan could further aid
the United States in identifying non-citizens who may enter the country. The absence of
such a plan, however, could complicate U.S.-Canadian border management. Moreover,
as the U.S. begins to implement an automated entry and exit control system, the demand
for improved infrastructure will be critical for the development of such a system. It is
unclear if Canada will facilitate such a system by extending its infrastructure at the
relevant border crossings.
North American Perimeter Security. As the United States moves forward with
implementing much of the security requirements in the PATRIOT Act and the Border
Security Act, many fear that the tighter security requirements will impede the flow of
people across the border. Some critics are advocating for a more open border. The ideal
of a North American Perimeter Security concept has been around for several years and the
basic premise of a North American Perimeter Security would move inspections and
enforcement activities away from the border. Such a concept would essentially eliminate
barriers to the movement of people (and goods) across the shared border. The Border
Security Act called for a study to examine the feasibility of establishing a North American
Perimeter Security program that would provide for increased cooperation with foreign
governments on questions related to border security. The North American Perimeter
Security, however, would require the harmonization of U.S. and Canadian immigration
and refugee policies, among other things. Although such a harmonization of policies may
be problematic following the events of 9/11, both countries have begun to harmonize
other policies at incremental levels that could be viewed as “pushing the border out” (i.e.,
preinspections and reverse inspections).
15 Several subsequent laws extended the implementation of an entry/exit control system deadline
set forth in §110 of IIRIRA; and the Enhanced Border Security and Visa Entry Reform Act of
2002 (P.L. 107-173) further requires implementation of an entry/exit control system.
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