[House Hearing, 111 Congress]
[From the U.S. Government Printing Office]
VISA OVERSTAYS: CAN THEY BE ELIMINATED?
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HEARING
before the
COMMITTEE ON HOMELAND SECURITY
HOUSE OF REPRESENTATIVES
ONE HUNDRED ELEVENTH CONGRESS
SECOND SESSION
__________
MARCH 25, 2010
__________
Serial No. 111-60
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Printed for the use of the Committee on Homeland Security
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Available via the World Wide Web: http://www.gpo.gov/fdsys/
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COMMITTEE ON HOMELAND SECURITY
Bennie G. Thompson, Mississippi, Chairman
Loretta Sanchez, California Peter T. King, New York
Jane Harman, California Lamar Smith, Texas
Peter A. DeFazio, Oregon Mark E. Souder, Indiana
Eleanor Holmes Norton, District of Daniel E. Lungren, California
Columbia Mike Rogers, Alabama
Zoe Lofgren, California Michael T. McCaul, Texas
Sheila Jackson Lee, Texas Charles W. Dent, Pennsylvania
Henry Cuellar, Texas Gus M. Bilirakis, Florida
Christopher P. Carney, Pennsylvania Paul C. Broun, Georgia
Yvette D. Clarke, New York Candice S. Miller, Michigan
Laura Richardson, California Pete Olson, Texas
Ann Kirkpatrick, Arizona Anh ``Joseph'' Cao, Louisiana
Ben Ray Lujan, New Mexico Steve Austria, Ohio
William L. Owens, New York
Bill Pascrell, Jr., New Jersey
Emanuel Cleaver, Missouri
Al Green, Texas
James A. Himes, Connecticut
Mary Jo Kilroy, Ohio
Dina Titus, Nevada
Vacancy
I. Lanier Avant, Staff Director
Rosaline Cohen, Chief Counsel
Michael Twinchek, Chief Clerk
Robert O'Connor, Minority Staff Director
C O N T E N T S
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Page
Statements
The Honorable Bennie G. Thompson, a Representative in Congress
From the State of Mississippi, and Chairman, Committee on
Homeland Security.............................................. 1
The Honorable Peter T. King, a Representative in Congress From
the State of New York, and Ranking Member, Committee on
Homeland Security.............................................. 2
The Honorable Laura Richardson, a Representative in Congress From
the State of California:
Prepared Statement............................................. 3
Witnesses
Mr. Rand Beers, Under Secretary, National Protection and Programs
Directorate, Department of Homeland Security:
Oral Statement................................................. 4
Prepared Statement............................................. 5
Mr. John T. Morton, Assistant Secretary, U.S. Immigration and
Customs Enforcement, Department of Homeland Security:
Oral Statement................................................. 9
Prepared Statement............................................. 11
Mr. Richard L. Skinner, Inspector General, Department of Homeland
Security:
Oral Statement................................................. 13
Prepared Statement............................................. 15
Mr. Edward Alden, Senior Fellow, Council on Foreign Relations:
Oral Statement................................................. 21
Prepared Statement............................................. 23
Appendix
Questions Submitted by Chairman Bennie G. Thompson of Mississippi
for Rand Beers, Under Secretary, National Protection and
Programs Directorate, Department of Homeland Security.......... 57
Question Submitted by Honorable Gus M. Bilirakis of Florida for
Rand Beers, Under Secretary, National Protection and Programs
Directorate, Department of Homeland Security................... 59
Question Submitted by Honorable Paul C. Broun of Georgia for Rand
Beers, Under Secretary, National Protection and Programs
Directorate, Department of Homeland Security................... 59
Questions Submitted by Chairman Bennie G. Thompson of Mississippi
for John T. Morton, Assistant Secretary, U.S. Immigration and
Customs Enforcement, Department of Homeland Security........... 59
Question Submitted by Honorable Paul C. Broun of Georgia for John
T. Morton, Assistant Secretary, U.S. Immigration and Customs
Enforcement, Department of Homeland Security................... 61
Questions Submitted by Chairman Bennie G. Thompson of Mississippi
for Richard L. Skinner, Inspector General, Department of
Homeland Security.............................................. 61
Question Submitted by Honorable Paul C. Broun of Georgia for
Richard L. Skinner, Inspector General, Department of Homeland
Security....................................................... 62
Question Submitted by Honorable Paul C. Broun of Georgia for
Edward Alden, Senior Fellow, Council on Foreign Relations...... 62
VISA OVERSTAYS: CAN THEY BE ELIMINATED?
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Thursday, March 25, 2010
U.S. House of Representatives,
Committee on Homeland Security,
Washington, DC.
The committee met, pursuant to call, at 10:06 a.m., in Room
1334, Longworth House Office Building, Hon. Bennie G. Thompson
[Chairman of the committee] presiding.
Present: Representatives Thompson, Sanchez, Harman, Jackson
Lee, Cuellar, Carney, Clarke, Richardson, Pascrell, Cleaver,
Titus, King, Smith, McCaul, Dent, Bilirakis, and Broun.
Chairman Thompson [presiding]. The Committee on Homeland
Security will come to order.
We would like to thank Congressman Rahall for allowing us
to borrow one of the Natural Resources Committee rooms. Our
rooms are being modified. Congressman Rahall was so gracious to
allow this to occur.
The committee is meeting today to receive testimony on,
``Visa Overstays: Can They be Eliminated?''
Today's hearing expands our examination of visa security.
This examination began, without question, about the issuance of
a visa to the Flight 253 Christmas bomber. It will continue
today as we examine the issue of foreign travelers who arrive
in this country with a proper visa, but then violate the terms
of that visa.
Today, we are concerned about those travelers who stay
longer than allowed under the terms of the visa. These are the
``overstays.'' This is not a new issue. In the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996,
Congress required the attorney general to develop an automated
entry-and-exit system to collect and match an immigrant's
arrival and departure records. Such a system would allow for
easy identification of those who remain beyond their period of
authorized stay.
Many are aware of the overstay issue because of media
reports that four of the September 11 terrorists entered the
United States on a legitimate visa, but stayed beyond the
authorized period. After September 11, Congress again sought to
address overstays in the Intelligence Reform and Terrorism
Prevention Act of 2004. That act required deployment of a
biometric entry-and-exit system.
Many of us believe that the overstay issue would be
addressed by the full implementation of the US-VISIT program.
But in December 2006, the Department hinted that they were
considering abandoning the exit portion of US-VISIT. This hint
did not clearly indicate the abandonment. But on November 2009,
General Accounting Office report made it clear that the US-
VISIT exit capability will not happen.
So I think we can all safely conclude that despite spending
at least $1.7 billion, the previous administration did not
develop a centralized means to track overstays. The question
now becomes whether such a system is likely in the immediate
future. I look forward to the assessment of the witnesses.
The Chair now recognizes the Ranking Member of the full
committee, the gentleman from New York, Mr. King, for an
opening statement.
Mr. King. Thank you very much, Mr. Chairman, and thank you
for the hearing.
I want to thank the witnesses in advance for their
testimony.
Mr. Chairman, the inability of the Federal Government to
identify, track, and remove foreign nationals who overstay
their visas has created a serious security vulnerability that
has, and will continue to be, exploited by terrorists. The 9/11
Commission reported that a fully functioning biometric entry-
and-exit system would be an essential investment in our
National security. Yet, almost 15 years, as you mentioned,
after Congress first passed legislation requiring an entry-exit
system in 1996, as part of illegal-immigration reform, we still
do not have the ability to collect biometric data on those
exiting the country.
There have been numerous instances in which individuals
have overstayed or violated terms of their visas and attempted,
or actually carried out, terrorist attacks. Of course, there
were--a number of the 9/11 hijackers overstayed their visas,
including, of course, Mohammed Atta, Zacarias Moussaoui, who
violated terms of his student visa and is now serving a life
sentence. There is also Sheik Abdel Rahman, who is serving a
life sentence for attempting to bomb New York City landmarks in
1990. He also overstayed his visa.
Fully implementing the US-VISIT exit system mandated by
Congress is one of the most effective ways to close the
security gap that results from our inability to determine
whether foreign visitors on temporary visas leave when they are
required to leave. A fully functioning biometric exit system
would provide enhanced counterterrorism capabilities by
improving our ability to stop the increasingly sophisticated
methods criminals and terrorists are using to obtain fraudulent
documents that facilitate terrorist travel.
Such a system would decrease the number of non-credible
leads that are forwarded to ICE for investigation--leads that
consume scarce agent time and resources, and impede the pursuit
of more credible cases. Unfortunately, the Department of
Homeland Security has not developed a comprehensive way forward
for implementing US-VISIT capabilities, nor funded this effort.
In fact, this year, the fiscal 2011 budget request completely
eliminates funding for a comprehensive biometric exit. This is
a sum of $22 million.
So I look forward to the hearing. I would like to hear the
witnesses from the Department explain the rationale for
eliminating this funding, and also what plans they have as we
go forward.
With that, Mr. Chairman, I yield back the balance of my
time.
Chairman Thompson. Thank you very much. The other Members
of the committee are reminded that, under committee rules,
opening statements may be submitted for the record.
[The statement of Hon. Richardson follows:]
Prepared Statement of Honorable Laura Richardson
March 25, 2010
Mr. Chairman, thank you for convening this hearing today on the
Department of Homeland Security's efforts to address the homeland
security-related concerns posed by individuals who overstay their visas
in the United States. I thank our distinguished panel of witnesses for
appearing before us today to share with us the work they are doing on
this issue and their recommendations for what else can be done.
I am a firm believer that our immigration system is broken and
needs comprehensive reform. We need a system that will strengthen our
National security, make hiring fair for the entire American workforce,
treat immigrant workers with respect, and create economic growth. An
efficient and effective visa system is a key component of our
immigration process, and I am pleased that today this committee will
get a chance to delve into these issues.
One of the fundamental problems we must address in our visa system
is the problem of ``overstay,'' when temporary aliens are legally
admitted to the United States but fail to depart when their visas
expire. Four of the 9/11 terrorists were visa overstays, and of the 12
known terrorists who committed crimes between 1993 and 2001, 7 were
visa overstays.
It concerns me that the Office of Inspector General (OIG) report
identified issues such as lack of staffing and lack of dedicated
funding as potential contributors to the problems associated with visa
overstay. Most Immigrations and Customs Enforcement (ICE) do not have
enough dedicated Compliance Enforcement Unit (CEU) agents to
investigate leads referred by headquarters. ICE has also failed to
request dedicated funding for CEU activities in the last two budgets.
If we do not make funding this program a priority, it will be difficult
to alleviate the problem of visa overstay. I realize that addressing
this problem has been a difficult challenge for the Department of
Homeland Security. While it may be impossible to eliminate the problem
of visa overstay entirely, we can certainly improve DHS's efforts to
ensure compliance with better technology, staffing, and funding. I look
forward to the testimony of our distinguished panel of witnesses as to
where these improvements need to be made.
Thank you again, Mr. Chairman, for convening this hearing. I yield
back the balance of my time.
Chairman Thompson. I welcome our witnesses for the hearing
today. We will have one panel of witnesses. I must add, at this
point, that I couldn't think of a better star panel than what
we have before us today.
Our first witness, Mr. Rand Beers, is the Under Secretary
for the National Protection and Programs Directorate. Our
second witness is Mr. John Morton, Assistant Secretary for
Immigrations and Customs Enforcement. The third witness is Mr.
Richard Skinner, with the Department of Homeland Security--
Inspector General. Our final witness for the panel is Mr.
Edward Alden. Mr. Alden is the Bernard Schwartz fellow at the
Council on Foreign Relations.
We want to, again, thank our witnesses for being here
today. Without objections, the witnesses' full statement will
be inserted in the record.
I now recognize Under Secretary Beers to summarize his
statement for 5 minutes.
STATEMENT OF RAND BEERS, UNDER SECRETARY, NATIONAL PROTECTION
AND PROGRAMS DIRECTORATE, DEPARTMENT OF HOMELAND SECURITY
Mr. Beers. Thank you, Chairman Thompson and Ranking Member
King, and distinguished Members of this committee. I am pleased
to be joined by my colleague, Assistant Secretary Morton,
Inspector General Skinner, and Mr. Edward Alden today, to
discuss how the Department is dealing with the challenges of
visa overstays.
It is no secret that identifying these overstays has been a
challenge for the United States for decades. The 9/11 attacks
led to a new sense of the urgency to address this problem.
Since 2001, the Federal Government has created new systems to
ensure that immigration officials, our frontline decision-
makers, have information that they need about foreign travelers
at every potential interaction, from attempting to travel to
the United States, to entering the country, to leaving the
country, and to any immigration benefit request in between.
Shortly after the Department was created, DHS established
the US-VISIT program to help manage and share pre-entry, entry,
status management and exit information about foreign travelers
with authorized decision-makers. Although most people are
familiar with US-VISIT's role in biometrically identifying visa
applicants and travelers arriving at ports of entry, the
program's behind-the-scenes work to identify visa overstays is
less well-known, but equally important to the integrity of our
immigration system.
Currently, US-VISIT uses technology and trained analysts to
provide ICE with credible leads on potential visa overstays who
are still in the United States, and they are called in-country
overstays, or to flag visa overstays who have subsequently left
the United States. They are known as out-of-country overstays.
US-VISIT uses its arrival-and-departure information system,
known as ADIS, which integrates biographic, biometric, and
encounter information from various systems to match arrival and
departure records. These systems primarily include IDENT, CBP's
TECS, USCIS's Computer-Linked Application Management System 3,
or CLAIMS 3, and the Student and Exchange Visitor Information
System, or SEVIS.
If ADIS does not receive a matching departure record to an
arrival record prior to the expiration of an individual's term
of admission, US-VISIT investigates to determine if the person
is truly a visa overstay who still appears to be in the United
States. If further analysis determines that that person appears
to be a visa overstay, and meets ICE National security
criteria, then US-VISIT sends that overstay information to ICE
for investigation.
If ADIS receives a departure record matching to an arrival
record after the individual's term of admission expires, U.S.
investigates to determine if, in fact, that person truly
overstayed. If addition information reviewed determines that
the person did overstay their period of admission, then the
individual is added to both biographic and biometric watch
lists as a confirmed overstay, with identification of the
number of days overstayed.
US-VISIT's investment in building capabilities to track
overstays is paying dividends. Last year, US-VISIT identified
and promoted almost 17,000 out-of-country overstays to its
watch list. This work enabled the State Department to deny
visas to 1,065 overstays, and for CPB to intercept 1,437
overstays trying to reenter the United States.
In fact, for the last 3 years straight, we have seen double
and triple-digit increases in the number of immigration
violators intercepted because they were identified and flagged
by US-VISIT. Also, last year, US-VISIT provided ICE with
thousands of leads on in-country visa overstays leading to 568
arrest of in-country visa overstays by ICE.
We are proud of this success. But recent events, like that
involving Hosam Smadi, remind us that we have to do more to
identify visa overstays, and we have to do more, faster. We are
currently looking at working to address three main challenges.
First, we are continually at work to improve the algorithms
used to match data in ADIS. US-VISIT is working with the
Lawrence Livermore National Laboratory to study and improve its
ADIS algorithms.
Second, we are striving to perform at the same level,
despite a constantly increasing transaction volume. Every day,
1 million transaction records are added to ADIS. US-VISIT
continues to make system upgrades to handle this volume and to
ensure system availability and performance for users.
Third, information-sharing is still not automatic in many
cases. To address this, we plan to further automate the ADIS
information-sharing with other immigration agencies. We will do
this by executing data-sharing upgrades with the State
Department, USCIS, and ICE. For State, the upgrade will
automate a previously manual process. For USCIS, we will
improve the ability to match unique individuals. For ICE, we
will provide a daily extract that will be used to better
identify unique individuals who require enforcement actions.
As we pursue these and other upgrades, we have confidence
that the information US-VISIT provides to ICE will be
increasingly credible and actionable, helping them to
effectively enforce our immigration laws.
Chairman Thompson, Ranking Member King and Members of this
committee, with your assistance, US-VISIT's overstay analysis
will help DHS to continue to protect America, and to ensure the
integrity of our immigration system. I want to thank you for
your continued support, and look forward to addressing your
questions.
[The statement of Mr. Beers follows:]
Prepared Statement of Rand Beers
March 25, 2010
introduction
Chairman Thompson, Ranking Member King, and distinguished Members
of the committee, I am pleased to appear before you today to discuss
the Department of Homeland Security's (DHS) ability to identify and
locate potentially dangerous individuals who overstay their visas.
background
The United States Visitor and Immigrant Status Indicator Technology
(US-VISIT) Program within the National Protection and Programs
Directorate (NPPD) expedites the identification of aliens encountered
across the homeland security environment and serves as the Department's
designated provider for biometric and associated biographic
identification and analysis services for automated entry and exit. US-
VISIT maintains databases that store and share biometric information
such as fingerprints, digital photographs, and certain biographic
information. Authorized DHS personnel who are responsible for deciding
eligibility for immigration benefits or admissibility into the United
States; taking law enforcement actions; or granting access rights to
sensitive facilities may query US-VISIT data to help them accurately
identify the people they encounter and determine whether those people
pose a risk to the United States. In addition to DHS components, other
users of US-VISIT's capabilities include the Departments of State,
Justice, and Defense; State and local law enforcement; and the
intelligence community.
In addition to supporting the work of its customers on the front
lines of homeland security, US-VISIT continues to fulfill its original
mission of implementing an integrated entry and exit data system for
the United States. A core US-VISIT function is to provide immigration
and border management officials with the biographic and biometric
records of entries and exits of individual aliens, including whether an
alien has overstayed his or her admission period. This data allows
officials to make more informed decisions on eligibility for
determinations on visa issuance, admission into the United States, and
other immigration benefits.
identifying visitors who overstay their visas
Over the past several years, DHS has made significant strides in
its ability to identify foreign nationals who have overstayed their
authorized periods of admission. DHS currently has programs in place
that use airline manifest information; border crossing records; travel
document information enabled by the Western Hemisphere Travel
Initiative (WHTI); and information collected under the US-VISIT program
that allow us to record who enters and exits the country for the vast
majority of individuals.
US-VISIT's Data Integrity Group (DIG) uses a multilayered system
that includes automated data searches, manual data searches, and manual
verification by human analysts to identify aliens who remain in the
United States beyond their authorized periods of admission. These
aliens are commonly called visa overstays.
The process of identifying visa overstays begins with the Arrival
and Departure Information System (ADIS). ADIS is a database that
matches biographic data on arrivals, departures, extensions, and
changes or adjustments of status to identify individuals who have
overstayed their authorized terms of admission.\1\ ADIS data is
comprised of records from or linked to the following sources:
---------------------------------------------------------------------------
\1\ ADIS receives arrival/departure manifests (APIS), officer-
confirmed arrivals (TECS), and changes/extensions/adjustments of status
(CLAIMS 3 and SEVIS).
---------------------------------------------------------------------------
Automated Biometric Identification System (IDENT);
TECS (including entry and exit records from the Advanced
Passenger Information System and I-94s), which is operated by
U.S. Customs and Border Protection (CBP);
Computer-Linked Application Management Information System 3
(CLAIMS 3), which is operated by U.S. Citizenship and
Immigration Services (USCIS);
Student and Exchange Visitor Information System (SEVIS),
which is operated by U.S. Immigration and Customs Enforcement
(ICE).
If an alien has remained beyond his or her authorized period of
admission, the ADIS system provides an overstay status indicator. The
overstay status indicator shows whether a person is believed to be
inside or outside the United States. Out-of-country overstays are
individuals who have departed the United States, but who, based on the
arrival and departure data in ADIS, stayed beyond their authorized
periods of admission. In-country overstays are individuals for whom we
have no departure record and therefore who may have exceeded their
authorized terms of admission by remaining in the United States. US-
VISIT follows separate processes for managing records identified as in-
country and out-of-country overstays.
Out-of-Country Overstay Identification and Enforcement Process
US-VISIT manually reviews records for aliens identified by ADIS as
out-of-country visa overstays. Manually vetting these records enables
US-VISIT to eliminate false system-identified overstays. After manual
review, biographic and biometric lookouts are created for confirmed
out-of-country overstays who are no longer eligible to enter the United
States.
The Visa Waiver Program (VWP), established by Section 217 of the
Immigration and Nationality Act, enables nationals of 36 participating
countries to travel to the United States for tourism or business for
stays of 90 days or less without obtaining a visa. Since January 12,
2009, VWP travelers have been required to obtain an electronic
authorization to travel after being screened against multiple law
enforcement and security databases. VWP travelers who have exceeded the
terms of authorized admission are no longer eligible for admission
under the VWP. Therefore, out-of-country overstay lookouts are posted
for VWP travelers who exceed their authorized periods of admission by
more than 7 days.
By statute, an individual who exceeds his or her authorized period
of admission by 180 days is ineligible for admission for no less than 3
years. As a result, out-of-country overstay lookouts are posted for
visa-holding individuals when they exceed their authorized periods of
admission by 180 days.
The lookouts that US-VISIT creates in TECS and IDENT for these
individuals are then available to all TECS and IDENT users, including:
CBP officers, when an individual attempts to enter at a port
of entry;
USCIS, when a person applies for an immigration benefit;
ICE, when a person is encountered in an immigration
enforcement context; and
Department of State consular officers, when an individual
applies overseas for a U.S. visa.
In fiscal year 2009, US-VISIT manually reviewed 44,284 records
identified as being out-of-country overstays. Of these, US-VISIT
automatically created lookout records for 16,640 who were likely
inadmissible to reenter the United States. These lookout records led to
2,502 individuals being stopped from reentering the United States,
including 1,437 interceptions by CBP officers at ports of entry and
1,065 visa refusals by U.S. consular officers.
The following data shows the number of out-of-country lookouts that
were created for the past 4 years, along with corresponding entry or
visa refusals, and demonstrates that US-VISIT's system is an effective
tool in preventing out-of-country overstays from reentering the United
States.
------------------------------------------------------------------------
Out-of- Port/Visa
Country Refusals
Fiscal Year Lookouts Based on
Created Lookouts
------------------------------------------------------------------------
2009.............................................. 16,691 2,502
2008.............................................. 13,276 1,441
2007.............................................. 7,357 451
2006.............................................. 457 5
------------------------------------------------------------------------
In-Country Overstay Identification and Enforcement
The records of individuals whose status indicates they are possible
in-country overstays undergo additional verification and validation,
which includes four automated searches. The first search identifies
those individuals who meet ICE parameters for overstay records of
interest based on National security and intelligence criteria, and this
search removes 89 percent of the potential overstays from further
review. The remaining records are identified as priority in-country
overstay records.
Priority in-country overstay records undergo three additional
automated searches, in sequential order:
The ADIS reverse search reverses the first and last names,
searching ADIS a second time for those instances where names
may be reversed from ADIS data sources.
The CLAIMS 3 search identifies records that match recent
immigration benefit applications, such as extensions of stay or
adjustments of status.
The Automated Targeting System (ATS) search identifies
records that match departure records that ADIS may not have.
Historically, these three automated searches have reduced the
number of priority in-country overstay records by an additional 40
percent. US-VISIT analysts then manually verify and validate the
remaining priority in-country overstay records to ensure that only
credible leads are forwarded to ICE. The manual verification and
validation process checks the following additional systems:
ADIS;
TECS Central Index System (CIS);
Consular Consolidated Database (CCD);
SEVIS;
Enforcement Case Tracking System (ENFORCE);
Enforcement Alien Removals Module (EARM; replaced Deportable
Alien Control System);
Refugee Asylum Parolee System (RAPS);
Web Image Storage and Retrieval System (Web-ISRS).
Typically, the manual process reduces the number of priority in-
country overstay records by an additional 53 percent. Records that
cannot be closed after manual review are transmitted to the ICE
Compliance Enforcement Unit as unconfirmed in-country overstay leads.
In fiscal year 2009, US-VISIT manually reviewed 37,408 priority in-
country overstay records and referred 16,379 leads to ICE.
The following table provides the number of in-country overstay
leads sent to ICE, with corresponding ICE arrests, over the last 4
years.
------------------------------------------------------------------------
Priority In-
Country Leads ICE Arrests
Fiscal Year Referred to Based on
ICE Referrals \1\
------------------------------------------------------------------------
2009.................................... 16,379 568
2008.................................... 13,343 715
2007.................................... 12,372 338
2006.................................... 4,155 139
------------------------------------------------------------------------
\1\ The ICE/Compliance Enforcement Unit provided the data concerning
actual arrests based on referrals.
Under current policy, the unconfirmed in-country overstay leads
transmitted to ICE are not included on the biographic or biometric
watch lists immediately. An individual is included on the biographic
and biometric watch lists once the overstay lead is confirmed or all
leads by ICE are exhausted.
improvements under way in identifying overstays
Improving Information-Matching Capabilities
Identifying visa overstays begins with matches in US-VISIT's ADIS
system; therefore, the system's effectiveness depends on using the best
possible matching algorithms. Efforts to identify and deploy new ADIS
algorithms have already improved record-matching performance and will
serve as the primary driver enabling entry to exit matching with 95
percent accuracy. To achieve this entry-to-exit goal, US-VISIT has
partnered with the Lawrence Livermore National Laboratory (LLNL) to
initiate a program that independently assesses, in a scientifically
supportable manner, the accuracy of ADIS record matching. In addition,
LLNL will examine the effects of changes made to the current record-
matching logic and algorithms in comparison to the performance of other
similar record-matching algorithms or currently available commercial
off-the-shelf or Government off-the-shelf products. This detailed
analysis of the data and matching capabilities of the system will
provide reliable benchmarks of record-matching accuracy and is
necessary for US-VISIT to achieve its match rate goal.
Reducing Backlogs of Un-reviewed Records
Between fiscal year 2007 and fiscal year 2009, a backlog of 1.3
million un-reviewed potential in-country overstay records accumulated
because of changes in foreign traveler volume, automated algorithm
changes, and ICE search criteria. US-VISIT expects to reduce this
backlog by 50 percent in fiscal year 2010 through automated and manual
matching and estimates that 47,000 leads could be forwarded to ICE's
Compliance Enforcement Unit.
Before fiscal year 2009, VWP overstay records constituted a
significant portion of these un-reviewed records. However, during
fiscal year 2009, US-VISIT prioritized review of all VWP in-country
overstay records and has now eliminated the VWP backlog and remains
current in reviewing these records.
interoperability expands enforcement opportunities
US-VISIT's IDENT database provides a centralized system for
immigration and border management officials to check whether an alien
is a visa overstay during numerous encounters, including when a person
applies overseas for a visa; attempts to enter at a port of entry;
applies for an immigration benefit; or is encountered in an immigration
enforcement context.
As a result, the administration of immigration benefits is more
accurate--and there are more opportunities for enforcement--than ever
before. Enforcement opportunities are also being significantly
increased as a result of IDENT becoming interoperable with the
Integrated Automated Fingerprint Identification System (IAFIS) of the
Federal Bureau of Investigation. This interoperability supports ICE's
Secure Communities initiative, which notifies ICE when a local law
enforcement agency participating in Secure Communities arrests an
immigration violator, including identified overstays, for a crime. The
IDENT system provides the local law enforcement agency with identifying
information such as a photograph, name, and date of birth. ICE then
determines the appropriate response based on multiple factors including
the type of crime, previous violations, and the availability of ICE
personnel to respond. US-VISIT is supporting ICE's implementation of
Secure Communities through the deployment of IDENT/IAFIS
interoperability Nation-wide.
conclusion
The Department believes that an effective entry and exit system is
a critical tool in managing immigration and border processes, enforcing
immigration laws, and enhancing National security. US-VISIT has made
significant progress over the past several years to enhance the quality
and credibility of overstay data by improving the automated matching of
entries to exits; increasing production, efficiency, and performance in
providing ICE with priority in-country overstay leads; and reviewing
and creating biographic and biometric lookouts for all out-of-country
overstays. Through this work, and the sharing of overstay information
through IDENT, not only has US-VISIT significantly enhanced DHS'
enforcement efforts, it also it has improved the integrity of our
immigration system to a level that did not exist before.
While DHS has made significant, tangible progress on the challenge
of identifying and presenting actionable leads on visa overstays, we
recognize there is still much to do to fulfill the vision for a more
automated entry-exit system. I appreciate this opportunity to testify
about the difference that the Department's US-VISIT program has made so
far, and I look forward to working with you to continue to improve it.
Thank you for holding this important hearing. I would be happy to
respond to any questions you may have.
Chairman Thompson. Thank you for your testimony. I allowed
you to go over, because I think the committee needed to hear,
going forward, what you plan to do to improve the overstay
issue. Thank you for your testimony.
I now recognize Assistant Secretary Morton to summarize his
statement for 5 minutes.
STATEMENT OF JOHN T. MORTON, ASSISTANT SECRETARY, U.S.
IMMIGRATION AND CUSTOMS ENFORCEMENT, DEPARTMENT OF HOMELAND
SECURITY
Mr. Morton. Mr. Thompson, Mr. King, Members of the
committee, thank you very much for inviting me here.
Today, we address the enforcement challenges posed by
temporary visitors to the United States who come here and fail
to depart as required--individuals we commonly refer to as visa
overstays. This issue is an important one as the Congress
considers questions of immigration reform.
On the one hand, it is very much in our interest to
encourage generous lawful trade and travel to the United
States. On the other hand, we need an immigration system. We
need border controls that are marked by integrity and
credibility. No one is well served if our visa and visa-waiver
programs can be abused with little consequence.
While precise figures are hard to come by, we estimate that
as many as 40 percent of the people that are here in the United
States illegally are here as overstays. Most Americans,
however, do not think of illegal immigration in terms of
overstays; rather, they think of the illegal border-crosser
dodging the Border Patrol along the Southwest border. Visa
overstays, however, don't need to evade the Border Patrol. They
have permission to come to the United States lawfully. They
enter the country lawfully, and then they simply remain. In
short, the lawful become the unlawful.
Enforcing the law against visa overstays largely falls to
ICE as part of its interior enforcement duties. ICE carries out
this enforcement as resources permit, and in balance with other
enforcement requirements--important requirements such as the
removal of criminal aliens or the removal of fugitives and the
removal of recent border-crossers apprehended at the border.
Most of ICE's overstay efforts are concentrated in our
Compliance Enforcement Unit, our CEU. This unit targets
overstays identified through the Student Exchange Visitor
Information System, or SEVIS, the National Security Entry-Exit
Registration System, or NSEERS, and US-VISIT.
These three programs and their data systems allow ICE to
access information about millions of students, tourists, and
temporary workers present in the United States at any one time,
and to identify those who may have overstayed their visas. Due
to resource constraints, however, almost all of the CEU's work
is focused on cases with a link to National security or public
safety.
The CEU relies on the efforts of about 360 special agents
and corresponding support staff. In addition, we have about 42
contract analysts who work to conduct individual record checks
of the various DHS databases to identify and refine the various
leads that we receive.
Each year, the CEU analyzes records of hundreds of
thousands of potential status violators from SEVIS, NSEERS and
US-VISIT, not just simply US-VISIT. These are reduced to cases
worthy of field investigation, and sent to local field offices
for action. On average, ICE opens about 6,000 investigative
cases annually, and assigns them to our agents in the field. Of
these 6,000, about 1,800 result in an arrest by CEU personnel.
Other overstays are arrested by our detention-and-removal
officers through our General Enforcement Program; for example,
in our jail programs and in our worksite programs.
As I discuss in my written remarks, the estimated number of
individuals who have overstayed beyond the terms of their
admission has remained at about 300,000 per year for the last 3
fiscal years. It goes without saying that this is a problem for
which we need a reasoned and systematic enforcement solution.
Additional targeting and enforcement actions could certainly
serve as a significant deterrent to visa overstays, and could
reduce the overall number of visa overstays in the United
States.
To this end, I am currently reviewing our policies,
programs, and procedures concerning visa overstays, and
exploring ways on how I can best address this problem in a
world of finite and limited resources.
Given the sheer number of overstays, however--I am going to
be candid--there is obviously no easy enforcement solution. I
would like the committee to know, however, that I am personally
open to working with the various Members who have an interest
in this issue on innovative and creative solutions.
I thank all of the Members of the committee for their
continued support for ICE, our mission. Of course, I am happy
to answer any questions you may have.
[The statement of Mr. Morton follows:]
Prepared Statement of John T. Morton
March 25, 2010
introduction
Chairman Thompson, Ranking Member King, and distinguished Members
of the committee: It is my honor and privilege to appear before you
today to discuss the efforts of U.S. Immigration and Customs
Enforcement (ICE) to confront the problem of visa overstays. This issue
of visa overstays and other forms of status violation blends two
critical areas of ICE's mission--National security and immigration
enforcement. In my view, ICE plays an important and effective role in
enforcing the law related to visas, including working with the
Department of State (DOS) in combating visa fraud and removing those
who overstay their visas. ICE's Compliance Enforcement Unit (CEU) was
created in 2003 to help confront the problem of visa overstays and
other status violations, thereby enhancing National security.
Today, through the CEU, ICE proactively develops cases for
investigation in cooperation with the Student and Exchange Visitor
Information System (SEVIS), the National Security Entry/Exit
Registration System (NSEERS), and the United States Visitor and
Immigrant Status Indicator Technology (US-VISIT) Program. These
programs and their related data systems enable ICE to access
information about the millions of students, tourists, and temporary
workers present in the United States at any given time, and identify
those who have overstayed or otherwise violated the terms and
conditions of their admission.
As we move forward, it is imperative that we expand the Nation's
enforcement efforts concerning overstays and other status violations.
This includes our continued focus on targeting overstays and other
status violations that, based on available intelligence, may threaten
National security. We must also expand our focus to other priority
classes of status violations. Efficiently targeting and removing more
aliens who overstay their authorized periods of admission, or who have
otherwise violated their status, as early as possible, will help
preserve valuable prosecutorial and investigative resources and improve
our National security. Accordingly, ICE is analyzing various approaches
to this issue, including sharpening the focus of proven programs that
currently address vulnerabilities exploited by visa violators.
The Compliance Enforcement Unit
In June 2003, the ICE Office of Investigations (OI) established the
CEU, the first National program dedicated to the enforcement of non-
immigrant visa violations. Previously, no resources had been dedicated
exclusively to the enforcement of visa non-compliance. As such, at its
inception, the CEU was staffed almost entirely with personnel on
temporary assignment. The CEU has grown considerably since then as ICE
has prioritized its expansion. The first official funding for the CEU
came in the fiscal year 2004 appropriations, in which $6.7 million was
provided for 51 positions. Roughly one-third (16) of the fiscal year
2004 CEU positions were placed at ICE headquarters. The remaining 35
were placed in field offices throughout the country. At the end of
fiscal year 2004, ICE obligated an additional $1.4 million toward
compliance enforcement efforts. The total dollar amount spent includes
the salaries, expenses, and other costs for 59 full-time equivalent
(FTE) investigative positions. During fiscal year 2009, ICE expended
$68.3 million (272 investigative FTE) toward compliance enforcement
activities from appropriated resources. In addition, $21.2 million was
expended from student exchange fees.
ICE received the following funding increases for compliance
enforcement investigations since the CEU's inception in 2003:
Fiscal year 2004.--$6.7 million;
Fiscal year 2005.--$8.3 million;
Fiscal year 2007.--$10.0 million;
Fiscal year 2008.--$9.0 million;
Fiscal year 2009.--$3.9 million.
Each year, the CEU analyzes records of hundreds of thousands of
potential status violators, after analysis of data from SEVIS, NSEERS,
and US-VISIT, along with other information. These records are resolved
by further establishing potential violations that would warrant field
investigations, establishing compliance or establishing departure dates
from the United States. Between 15,000 and 20,000 of these records are
resolved by in-house analysts each month. Since the creation of the CEU
in 2003, analysts have resolved more than 1 million such records. On
average, ICE opens approximately 6,000 investigative cases annually,
and assigns them to our agents in the field for further investigation.
On average, these cases have resulted in over 1,400 arrests per year.
A recent ICE investigation in Las Cruces, New Mexico, highlights
how the CEU functions. As a result of CEU data analysis and field
investigation, last month ICE agents arrested two foreign nationals who
were admitted as F-1 nonimmigrant students and violated the terms and
conditions of their admission. Both individuals were referred for
investigation after their status was terminated in SEVIS for failure to
maintain student status. These individuals possessed several other
indicators of National security concerns.
Agents and analysts in ICE monitor the latest threat reporting and
proactively address emergent issues. This practice has contributed to
ICE's counterterrorism mission by initiating or supporting high-
priority National security initiatives based upon specific
intelligence.
In order to ensure that the potential violators who pose the
greatest threat to National security are given priority in targeting,
ICE uses intelligence-based criteria, developed in close consultation
with the intelligence and law enforcement communities. ICE assembles
the Compliance Enforcement Advisory Panel (CEAP) on a tri-annual basis
to ensure that it uses the latest threat intelligence to target
nonimmigrant overstays and status violators who pose the highest risks
to National security.
Through the CEU, ICE also supports and promotes school fraud
investigations through the Student and Exchange Visitor Program (SEVP).
In March 2010, ICE's Compliance Enforcement Group in Miami, Florida,
initiated ``Operation Class Dismissed,'' a criminal investigation that
led to the indictment of the owner/operator of a Miami-based foreign
language school and one of its employees on four counts of conspiring
to commit a criminal offense against the United States. The owner and
employee were suspected of fraudulently sponsoring foreign students by
certifying student status to non-immigrants, without requiring them to
maintain full courses of study as required to lawfully comply with the
terms of their admission. The ICE investigation uncovered information
that only approximately 5 percent of the school's students attended
class on any given day. In addition to the indictment, follow-up
investigation by ICE resulted in the administrative arrests of 81
student visa violators purported to be attending the school from
countries including Thailand, Syria, Honduras, South Korea, Japan,
Colombia, Dominican Republic, Turkmenistan, Turkey, Indonesia,
Venezuela, Brazil, and Kyrgyzstan.
Coordination With US-VISIT and Other DHS Components
Through the CEU, ICE works in close collaboration with US-VISIT,
part of the Department of Homeland Security's National Protection and
Programs Directorate (NPPD). US-VISIT supports the Department of
Homeland Security's mission to protect our Nation by providing
biometric identification services to Federal, State, and local
government decision-makers to help them identify the people they
encounter accurately, and determine whether those people pose risks to
the United States. DHS's use of biometrics under the US-VISIT program
is a powerful tool in preventing identity fraud and ensuring that DHS
is able to rapidly identify criminals and immigration violators who try
to cross our borders under a new name. Biometric information sharing
between the Federal Bureau of Investigation's Criminal Justice
Information Services and US-VISIT also provides critical support to
ICE's Secure Communities Program.
Through Secure Communities, aliens--including those who have
overstayed their visas or otherwise violated their immigration status
and are then encountered by law enforcement--can be identified when
booked for crimes by State and local law enforcement. Currently, this
capability is available in 119 jurisdictions in 16 States. US-VISIT
also supports the Department's ability to identify international
travelers who have remained in the United States beyond their periods
of admission by analyzing related biographical information. US-VISIT
stores biographic entry and exit records in the Arrival and Departure
Information System.
ICE receives nonimmigrant overstay and status violation referrals
from US-VISIT's Data Integrity Group (DIG). ICE currently receives
three types of nonimmigrant status violator leads from US-VISIT.
The first type, Nonimmigrant Overstay Leads, is a used by the CEU
to generate field investigations.
A second type of lead pertains to the CEU's Visa Waiver Enforcement
Program (VWEP). The Visa Waiver Program (VWP) is the primary source of
nonimmigrant visitors from countries other than Canada and Mexico.
Although the overstay rate from this population is less than 1 percent,
we created a program dedicated to overstays arising from this VWP
population given the high absolute number of individuals in this
category. Prior to the implementation of the VWEP in 2008, there was no
National program dedicated to addressing overstays within this
population. ICE receives a weekly list of individuals that US-VISIT has
identified as potential overstays who entered the United States under
the VWP. In accord with its intelligence-based criteria, a relevant
portion of this report is imported into the CEU's internal lead
tracking system for review and possible field assignment.
The third type of lead is generated from biometric data collected
by US-VISIT. US-VISIT routinely receives fingerprint records from a
variety of governmental sources and adds them to a biometric watch list
of individuals of National security concern. These new watch list
records are checked against all fingerprints in the Automated Biometric
Identification System, managed by US-VISIT, to determine if DHS
previously encountered the individual. If US-VISIT identifies a prior
encounter, such as admission to the United States, the information is
forwarded to ICE for review and possible field assignment. Similarly,
US-VISIT monitors records for individuals who, at the time of admission
to the United States, were the subject of watch list records that did
not render the individuals inadmissible to the United States.
Therefore, if such individuals overstay their terms of admission,
information on the subjects is forwarded to ICE for review and possible
referral to investigative field offices for follow-up.
Additionally, the CEU develops potential overstay and status
violation leads from SEVIS and NSEERS. The CEU imports these leads
directly from those databases, and applies its intelligence-based
criteria to determine whether investigative referral is appropriate.
Broadening the Mission of the Compliance Enforcement Unit
In 2004, the United States Government Accountability Office (then
called the United States General Accounting Office) estimated that one-
third of the illegal alien population had entered the United States
legally but had overstayed their periods of authorized stay.\1\
According to annual overstay analysis produced by US-VISIT, the number
of individuals who overstayed the terms of their admission each year
has remained above 300,000 for fiscal years 2007, 2008, and 2009. The
Pew Hispanic Center estimates the total number of visa overstays in the
United States at approximately 4.4 million.\2\ ICE is currently
reviewing its policies, programs, and procedures concerning visa
overstays, and continues to explore how to most effectively allocate
its finite resources. Additional targeting and enforcement actions
could provide a significant deterrent to overstays and could reduce the
overall number of visa overstays in the United States.
---------------------------------------------------------------------------
\1\ U.S. General Accounting Office ``Overstay Tracking: A Key
Component of Homeland Security and a Layered Defense'', 5/1/2004,
http://www.gao.gov/new.items/d0482.pdf.
\2\ Pew Hispanic Center, ``Modes of Entry for the Unauthorized
Migrant Population'', 5/22/2006, http://pewhispanic.org/files/
factsheets/19.pdf, The estimate assumes the range of 4-5.5m for
overstays and 250,000-500,000 for Border Crossing Cards. The Pew
estimate is based on an assumption that visa overstays represent 40-50
percent of the unauthorized population. The estimate for visa overstays
and visa waiver overstays employs the middle of the range based on
conversations with the DHS Office of Immigration Statistics. The
estimate of border crossing card overstays employs the higher estimate
based on a recommendation from OIS that BCC overstay population
increases each year. The Office of Immigration Statistics agrees the
Pew analysis is the best existing estimate on the visa overstay
population.
---------------------------------------------------------------------------
conclusion
I thank the committee for its support of ICE and our law
enforcement mission. Your support is vital to our work. Your continued
interest and oversight of our actions is important to the men and women
at ICE, who work each day to ensure the safety and security of the
United States.
I would be pleased to answer any questions you have at this time.
Chairman Thompson. Thank you for your testimony.
I now recognize Inspector General Skinner to summarize his
statement for 5 minutes.
STATEMENT OF RICHARD L. SKINNER, INSPECTOR GENERAL, DEPARTMENT
OF HOMELAND SECURITY
Mr. Skinner. Good morning, Chairman Thompson, Ranking
Member King, and Members of the committee. Thank you for
inviting me today to testify on visa overstays.
First, let me point out that over the past 5 years, my
office has spent countless hours reviewing the Department's
immigration programs. However, on the subject of visa
overstays, we completed only two reviews, and both were
completed in calendar year 2005. So please excuse me if some of
the issues we raised in those reports seem to be dated today.
Those reports dealt with the Department's US-VISIT program
and ICE's Compliance Unit--Enforcement Unit. While some of the
issues addressed in those reports may have changed, the
challenges of identifying and removing visa overstays has
remained unchanged, or may have even intensified over time.
Most approved visitors in the United States leave before
their visas expire, but many don't. Some estimates suggest that
as many as 4 million overstays are in the United States today.
Overstays perpetuate the illegal-immigration problem by using
the visa process to remain unlawfully in the United States.
Moreover, some overstays represent a very real National
security threat. Ranking Member King, I think you even
mentioned this--that at least six of the 9/11 hijackers were,
in fact, visa overstays.
In an effort to reduce the number of aliens residing in the
United States who have violated the terms of their visa, ICE
has established the Compliance Enforcement Unit to track and
pursue foreign students, exchange visitors, and other non-
immigrant visitors who violate their immigration status.
Essentially, ICE draws up on three databases to gather and
analyze leads on visitors to the United States.
These are, at first, US-VISIT, which verifies the
identities of incoming visitors and ensures compliance with
visa and immigration policies; second, the Student and Exchange
Visitor Information System, which maintains data on roughly 1
million non-immigrant foreign student and exchange visitors;
and, third, NSEERS, the National Security Entry-Exit
Registration System, which is a registry of selected foreign
visitors who, based upon country of origin or other
intelligence-based criteria, may present an elevated National
security concern.
Between January 2004 and January 2005, which was the scope
of our study, ICE reviewed over 300,000 leads compiled from
these three databases. Of these leads, only about 143,000 were
processed. That is about 47 percent--of which, about 139,000
were closed as ``non-actionable''--that is the individual
either left, or we couldn't verify addresses. About 4,100 were
actually referred for investigation, which resulted in 671
apprehensions.
Our review of ICE's program to identify and remove visa
overstays disclosed that ICE did not always validate the
veracity of actionable leads. As a result, viable staff time
was wasted chasing down false leads. It did not have a means to
match available resources with workload demands. Consequently,
limited resources were not always being used in the most
efficient manner possible. Finally, it did not always document
the reasons for not pursuing violator leads. Consequently, ICE
could not be sure it had a complete record about a violator
when chasing down any subsequent leads about that violator.
Adding to the complexity of the overstay issue is the large
number of travelers who are exempted from enrollment in US-
VISIT, such as the Mexican Border Crossing Card holders, who
account for almost nearly half of the land-border crossings.
Implementing US-VISIT at the land ports of entry is more
complex and challenging than air and sea ports, both of which
offer an array of logistical control features such as scheduled
arrival and departure times.
Land ports of entry must be able to accommodate larger and
constant flows of traffic. Small increases in processing time
can translate more quickly into travel delays and impede border
crossing. In early 2008, GAO criticized DHS for not having a
comprehensive strategy for controlling and monitoring the exit
of foreign visitors. In a report released earlier this year,
GAO again criticized DHS for not adopting an integrated process
scheduling, executing, and tracking the work that needs to be
accomplished to deliver the exit strategy.
We recognize that ICE has already made considerable process
in managing and prioritizing its workload of National security
cases, criminal-alien cases, and fugitive-alien cases. We also
recognize that enhancements have been made to the Department's
visitor databases, which, in turn, enhances ICE's ability to
locate and remove visa overstays. However, even if the
Department can monitor these exit of foreign visitors through
US-VISIT, it is highly unlikely that it can eliminate visa
overstays altogether.
The Department can, however, improve its efforts to remove
those overstays that pose the biggest threat to our society--
that is terrorists, criminals, and fugitives--by continuing to
invest in ICE's enforcement and compliance operations.
Mr. Chairman, this concludes my statement. I will be happy
to answer any questions you may have.
[The statement of Mr. Skinner follows:]
Prepared Statement of Richard L. Skinner
March 25, 2010
Chairman Thompson, Ranking Member King, and Members of the
committee: Thank you for inviting me to testify on visa overstays.
While most visitors leave by the time their visas expire, many
thousands remain in the United States illegally. Overstays perpetuate
the illegal immigration problem by using the visa process to break the
law to remain in the United States. Moreover, some overstays represent
a very real National security risk to the Nation. At least six of the
9/11 hijackers were visa overstays.
The Department of Homeland Security estimates that approximately
10.8 million unauthorized immigrants live in the United States. In an
effort to reduce the number of aliens residing in the United States who
have violated the terms of certain types of visas, U.S. Immigration and
Customs Enforcement established the Compliance Enforcement Unit (CEU)
in June 2003. The CEU tracks and pursues overstays including, foreign
students, exchange visitors, and other non-immigrant visitors who
violate their immigration status. The CEU draws upon various Government
databases to gather and analyze leads on visitors to the United States,
identify potential security or criminal threats, and ensure full
compliance with immigration laws. Additionally, the CEU supports
enforcement actions as a result of visa revocation actions taken by the
Department of State (DOS).
The CEU develops leads on immigration violators by collecting and
examining data from three key National databases:
The U.S. Visitor and Immigrant Status Indicator Technology
program, administered by DHS, verifies the identities of
incoming visitors and ensures compliance with visa and
immigration policies. US-VISIT collects travel information and
biometric identifiers such as fingerprints to verify the
identity of visitors to the United States upon their arrival
and departure.
The Student and Exchange Visitor Information System is an
internet-based program, administered by ICE, which maintains
data on roughly 1 million non-immigrant foreign students and
exchange visitors during their stay in the United States. SEVIS
was developed in 2002 to improve Nation-wide coordination and
communication in monitoring student visa activity.
The National Security Entry-Exit Registration System is a
DHS-administered registry of selected foreign visitors who,
based upon country of origin or other intelligence-based
criteria, may present an elevated National security concern.
Since its creation in June 2003, the CEU has reviewed more than
500,000 leads compiled from these databases. Of these leads, nearly
16,000 revealed potential violations of U.S. visa or immigration law,
which were referred to ICE field offices for investigation. To date,
these investigations have resulted in more than 3,000 arrests.
In September 2005, we conducted a review to evaluate the efficacy
and effectiveness of ICE CEU in identifying, locating, and apprehending
aliens who have violated the purpose and terms of their admission into
the United States.
Based on our review of the number of cases referred to the CEU and
the procedures and systems used to collect, analyze, and process these
referrals, we identified several deficiencies in the CEU process. We
made four recommendations:
1. Ensure that data quality issues are addressed, in conjunction
with officials from the various lead referral systems, and that
validity checks are performed to increase the number of
``actionable'' leads referred to CEU.
2. Assess the CEU workflow process, establish, and closely monitor
processing performance measures to ensure that CEU staff is
working efficiently, and determine when staffing adjustments
are needed to ensure timely processing of all violator leads.
3. Ensure that adequate justification exists for lead closure and
that this justification is documented.
4. Redistribute policy and guidance documents to ICE field offices
and consolidate current policy memoranda into a set of Standard
Operating Procedures (SOPs) for distribution to all ICE field
offices; and, establish an ICE-wide resource for access to the
CEU SOPs, as well as other current information regarding CEU
activities.
We closed recommendations 2 and 3 based on ICE's response to our
draft report. For recommendation 2, ICE stated that the CEU has refined
how it prioritizes leads that pose the greatest potential threat to
National security and public safety. The CEU will make staffing
adjustments to address increased workloads by adding additional
research analysts and, when necessary, detailing ICE investigators to
the regions with the highest workloads. This will facilitate research
of additional leads. The CEU has a Student and Exchange Visitor Program
liaison assigned to review Student Exchange Visitor Program leads
before they are transmitted to the field for investigation.
Regarding recommendation 3, in its response to our draft report,
ICE stated that CEU policy and guidance memoranda are either currently
available through ICE's proprietary website or are in the process of
being added. Additionally, the CEU will make field managers responsible
for CEU operations aware that CEU-related policy memoranda are
available on-line. ICE also provided two agents from each Special
Agent-in-Charge office with training on CEU operations and how to
access SEVIS and US-VISIT information. Insofar as many CEU leads are
sent directly to Resident Agent-in-Charge (RAC) offices, we believe
that agents assigned to ICE RAC offices would also benefit from this
training.
On February 6, 2006, we closed recommendations 1 and 4. For
recommendation 1, ICE reported that the CEU had refined or established
new business processes with the DOS, the Student Exchange Visitor
Program, and US-VISIT Program that will enable CEU to focus
investigative resources on a smaller set of high quality records,
thereby reducing the number of non-actionable leads. These processes
include access to the DOS data systems, which will allow for rapid
referrals of visa revocations to ICE field offices for investigation,
and the correction of data errors in SEVIS to identify individuals who
are no longer residing in this country. The Student Exchange Visitor
Program office is also exploring the use of the unique personal
identifier, which will allow for the consolidation of foreign student
records in SEVIS and facilities interoperability with US-VISIT and U.S.
Citizenship and Immigration Services systems. The US-VISIT Program
office is retrieving additional departure records not found in the
Arrival and Departure Information System (the entry-exit component of
US-VISIT) to ensure that all US-VISIT overstay records forwarded to CEU
are thoroughly researched through all available entry-exit databases.
In addition, for recommendation 4, ICE verified that CEU policy and
guidance memoranda are currently available on the ICE Office of
Investigations proprietary website. The CEU has conducted eight
training classes for its field agents.
We also reported that the sum of deficiencies in the systems, in
the CEU's output, and other factors in the apprehension and removal
process resulted in minimal impact in reducing the number of overstays
in the United States. Adding to the complexity of the overstay issue is
the large number of travelers who are exempt from enrollment in US-
VISIT. This includes Mexican Border Crossing Card (BCC) holders. BCC
holders, who accounted for nearly half of foreign nationals land border
crossings, are exempt from enrollment when they enter under BCC
provisions.
Implementing US-VISIT at land ports of entry (POE) is more complex
and challenging than air and sea POEs; both of which offer an array of
logistical and control features, such as scheduled arrival and
departure times, accommodations for delayed travel, and advanced
passenger information. Land POEs must be able to accommodate larger and
constant volumes of foreign nationals. At land POEs, small increases in
processing times translate more quickly into travel delays that impede
border crossing, which can have deleterious economic effects for both
border nations. For example, we examined the impact of a 20-second
increase in inspections time for 3.5 million vehicles. We calculated
that it would take the approximate equivalent of 2.22 additional
calendar years to inspect these additional vehicles. Although other
variables could affect the equation, the increase of 2.22 calendar
years in inspections time could translate into significant resource
implications for U.S. Customs and Border Protection, as well as
significant increases in waiting time for travelers.
In February 2008, the General Accountability Office (GAO) reported
that DHS has partially defined a strategic solution for meeting US-
VISIT's goals. In particular, the US-VISIT program office has defined
and begun to develop a key capability known as ``Unique Identity,''
which is to establish a single identity for all individuals who
interact with any immigration or border management organization by
capturing the individual's biometrics, including 10 fingerprints and a
digital image, at the earliest possible interaction. However, in that
same report, GAO criticized DHS for not having a comprehensive strategy
for controlling and monitoring the exit of foreign visitors.
In our report, we stated ``A US-VISIT exit component is not in
place at land POEs. Without the exit component, US-VISIT cannot match
entry and departure records and cannot identify those non-immigrants
who may have overstayed the terms of their visas.'' However, in a GAO
report released this year, the GAO credits DHS for having established a
comprehensive exit project within the US-VISIT program that consists of
six components that are at varying stages of completion. Again,
however, GAO criticizes DHS for not adopting an integrated approach to
scheduling, executing, and tracking the work that needs to be
accomplished to deliver an exit solution. GAO contends that without a
master schedule, DHS cannot reliably commit to when and how work will
be accomplished to deliver a comprehensive exit solution to its 300
POEs, and cannot adequately monitor and manage its progress toward that
end.
On December 9, 2009, Secretary Napolitano stated in her testimony
before the Senate Committee on the Judiciary that ``DHS has continued
to enhance US-VISIT's capabilities by implementing 10-fingerprint
processing. Ten-fingerprint scanners have now been deployed to all
major ports of entry, providing the capability to capture 10
fingerprints from travelers. This has improved accuracy of
identification, enhanced interoperability with the FBI and the
Department of State, as well as with State, local, and Tribal
governments, and increased our ability to conduct full searches against
latent fingerprint databases.''
``We [DHS] also have continued to test US-VISIT biometric exit
procedures for travelers departing U.S. airports and seaports. From May
to June 2009, US-VISIT conducted two air exit pilots at the Detroit
Wayne Country Metropolitan Airport and Hartsfield-Jackson Atlanta
International Airport. In October, we provided an evaluation of these
pilot tests to Congress and the Government Accountability Office.''
``Currently, we [DHS] are reviewing public comments from the Notice
of Proposed Rule Making the Department published in the Federal
Register in April, 2009 proposing an exit system for airports. We will
continue to work with Congress and industry partners to weigh our
options and develop an effective system that meets our security
objectives while facilitating lawful travel.''
The US-VISIT program office reviews and analyzes information in the
Arrival and Departure Information System (ADIS), a US-VISIT module used
to store biographic, biometric indicator, and encounter data on aliens
who have applied for entry, entered, or departed the United States.
ADIS consolidates information from various systems in order to provide
a repository of data held by DHS for pre-entry, entry, status
management, and exit tracking of immigrants and non-immigrants. Its
primary use is to facilitate the investigation of subjects of interest
who may have violated their authorized stay.
other oig work that spotlights apprehension, detention, and removal
actions
In March 2007, we issued a report on ICE's Fugitive Operations
Teams. Fugitive Operations teams perform under the auspices of the
Office of Detention and Removal Operations' National Fugitive
Operations Program. The purpose of the National Fugitive Operations
Program is to identify, apprehend, and remove fugitive aliens from the
United States. The ultimate goal of the program is to eliminate the
backlog of fugitive aliens. Fugitive aliens are non-United States
citizens not currently in the custody or control of ICE who have failed
to depart the United States pursuant to a final order of removal from
the Executive Office for Immigration Review. The orders require the
aliens to be removed from this country.
Our review's objectives were to determine the adequacy of
performance measures used to assess the effectiveness of the teams and
their progress in reducing the backlog of fugitive alien cases. We
assessed the sufficiency of the teams' staffing levels, factors
affecting the teams' operations, such as coordination activities with
internal and external entities, and training policies and practices for
the teams.
We determined that despite the teams' efforts, the following
factors limited their effectiveness:
Insufficient detention capacity;
Limitations of its immigration database, the Deportable
Alien Control System, which is the Office of Detention and
Removal Operations' system of records;
Inadequate working space;
Team members performing non-fugitive operations duties
contrary to the Office of Detention and Removal Operations
policy; and,
Insufficient staffing.
Additionally, ICE could not calculate the removal rate of fugitive
aliens apprehended by the teams because the Office of Detention and
Removal Operations' reports did not specify whether removed aliens were
fugitive or non-fugitive aliens or whether a Fugitive Operations Team
or non-team member made the apprehensions. Moreover, since the office
does not distinguish between fugitives and non-fugitives in its removal
figures, we could not determine the percentage of fugitive aliens
removed from the country. More specifically, it is unknown how many of
the fugitive aliens apprehended by the teams were removed. When
fugitive aliens have not been removed, they are likely released into
the United States on their own recognizance or under an order of
supervision, which is similar to a parole.
Finally, we determined that the teams have basic law enforcement
training and most have completed the requisite training to conduct
fugitive operations. In addition, while teams are encouraged to seek
refresher training, there is no National requirement for it.
We made seven recommendations to address these issues. ICE
concurred with each of the seven recommendations. For example, we
recommended that ICE develop a detailed plan to ensure adequate
employee workspace. To address this recommendation, ICE is coordinating
a Space Allocation Survey with several entities, including the General
Services Administration and U.S. Customs and Border Protection, to
identify the need for additional workspace and then assessing available
resources to accommodate such request. In addition, in October 2006, in
order to facilitate the deployment of fiscal year 2007 Fugitive
Operations Teams, ICE specifically asked affected field offices whether
new and pre-existing sites needed additional storage and parking space,
gyms, and holding facilities.
We also recommended that ICE provide appropriate resources to
detain, process, and remove fugitive aliens. ICE explained that it
created the Detention Operations Coordination Center to coordinate the
movement and placement of detained aliens to allocate detention space
effectively. In addition, ICE's Office of Detention and Removal
Operations units are engaged in activities to develop a comprehensive
infrastructure that would improve coordinated removal efforts and
management of detention space.
Although ICE has taken positive steps to improve its capability to
detain, process, and remove aliens, ICE identified several external
factors that impede the Office of Detention and Removal Operations'
ability to execute removal operations, such as:
Foreign embassies and consulates refusal or delay of issuing
travel documents;
Grants of relief, motions to reopen, issuances of stays, and
other legal decisions from the Executive Office for Immigration
Review and the Federal courts; or
The United States Supreme Court order barring prolonged
detention after 180 days, if removal of an alien in ICE custody
is not reasonably foreseeable.
The teams are successfully liaising and coordinating with other
entities to locate, apprehend and obtaining information on fugitive
aliens and enlisting other entities' participation in Fugitive
Operations Team-led apprehensions through information-sharing
agreements and partnerships with Federal, State, and local law
enforcement agencies. The teams' reliance on formal information-sharing
agreements and other agencies for information gathering provides added
resources that might not have been available to the teams otherwise.
In June 2001, the Supreme Court ruled that an alien with a final
order of removal generally should not be detained longer than 6 months.
To justify an alien's continued detention, current laws, regulations,
policies, and practices require the Federal Government to either
establish that it can obtain a passport or other travel document for
the alien in the ``reasonably foreseeable future,'' or certify that the
alien meets stringent criteria as a danger to society or to the
National interest. ICE is responsible for ensuring compliance with the
Court's ruling and final order case management.
In February 2007, we issued a report on ICE's compliance with two
U.S. Supreme Court decisions governing the detention period for aliens
with a final order of removal. We reviewed ICE's compliance with
detention limits for aliens who were under a final order of removal
from the United States, including the reasons for exceptions or
noncompliance. ICE has introduced quality assurance and tracking
measures for case review; however, outdated databases and current
staffing resources limit the effectiveness of its oversight
capabilities. Based on our review, approximately 80 percent of aliens
with a final order are removed or released within 90 days of an order.
Custody decisions were not made in over 6 percent of cases, and were
not timely in over 19 percent of cases.
Moreover, some aliens have been suspended from the review process
without adequately documented evidence that the alien is failing to
comply with efforts to secure removal. In addition, cases are not
prioritized to ensure that aliens who are dangerous or whose departure
is in the National interest are removed, or that their release within
the United States is adequately supervised. Finally, ICE has not
provided sufficient guidance on applying the Supreme Court's
``reasonably foreseeable future'' standard, and does not systematically
track removal rates--information that is necessary for negotiating
returns and for determining whether detention space is used
effectively.
The weaknesses and potential vulnerabilities in the post order
custody review process cannot be easily addressed with ICE's current
oversight efforts, and ICE is not well-positioned to oversee the
growing detention caseload that will be generated by DHS' planned
enhancements to secure the border.
We recognize that ICE has already made considerable progress in
managing National security cases. The Headquarters Custody
Determination Unit (HQCDU) should have at least one officer working
full-time on each of the National security, terrorism, war criminal,
and human rights abuser caseloads. However, at the time of our report,
only one officer was working on National security, terrorism, war
criminal and the human rights abuser caseloads in addition to other
duties. With adequate staffing, the unit could take a more proactive
approach to monitoring and prioritizing the whole caseload, which might
secure faster returns and fewer or better-supervised releases.
ICE's Office of Detention and Removal Operations makes thousands of
decisions on Post Order Custody Review cases each year, and many should
be analyzed to identify the effect on removals for a number of factors.
During the period under review, available statistics indicated that 40
percent of habeas corpus challenges were followed by a release,
indicating that Government entities are finding the decisions made
under the existing system could not be supported when challenged.
Making the process more objective and transparent will enable HQCDU to
support its decisions when they are challenged. While the HQCDU makes
all 180-day and post 180-day Post Order Custody Review decisions, once
the 180-day decision has been made, responsibility for monitoring cases
and initiating subsequent reviews shifts to deportation officers in the
field. Without a written decision from the unit, deportation officers
would not have necessary information to determine when to initiate a
review of post-180-day detention. Reviewing a decision at the request
of a field deportation officer does not automatically compel the HQ
Custody Determination Unit to release the alien. Tracking statistics on
removal rates will provide additional information on which to base
their decision, but will not constrain them from taking into account
changes in country conditions, on-going negotiations, the circumstances
of the individual alien, or their expertise and experience.
ICE regulations and procedures provide less oversight and review
after an alien has been held 180 days, despite the increasing burden on
the Government to establish that an alien's removal will occur in the
reasonably near future. These cases would benefit from a broader range
of strategies to ensure regulatory compliance and the most effective
use of existing resources, such as detention space. Oversight should
include periodic field office meetings with local pro bono
organizations. Pro bono organizations are a source of information on
potential compliance issues, can assist in resolving post 180-day
cases, and can--and do--raise compliance issues in court if they are
not resolved at the local field office level.
To address these challenges, we made five recommendations. ICE
concurred and subsequently complied with all except one recommendation.
First, we recommended that ICE require each Field Office Director to
report case-specific compliance with Post Order Custody Review
regulations and guidance to the HQ Custody Determination Unit on a
quarterly basis, which would provide this information to the Assistant
Secretary semi-annually until such information can be obtained through
ENFORCE data system.
Second, we recommended that ICE ensure that existing vacancies in
the Travel Documents Unit are filled and, as staff or funding becomes
available, ensure this office upgrades its intranet.
Third, ICE needs to develop and staff a program to identify and
prioritize cases involving aliens who represent a violent threat to the
public or are National security or National interest cases, so that
efforts to secure travel documents are expedited, and placement
procedures are initiated early for those who might require eventual
release within the United States. This recommendation is an issue of
resources rather than of commitment.
Our fourth recommendation concerns ICE's need to develop an
objective and transparent methodology for determining whether there is
a significant likelihood of removal for all cases, which considers: (1)
The Supreme Court's requirement for increasing scrutiny over time; (2)
the factors outlined in ICE regulations; and, (3) comprehensive
statistics on actual removal rates for all Post Order Custody Review
cases forwarded to the Travel Documents Unit.
We also recommended that ICE develop and staff a program to improve
oversight of all aliens who have been in detention longer than 180 days
after a final order of removal.
In November 2006, we issued a report, entitled Review of the U.S.
Immigration and Customs Enforcement Detainee Tracking Process. Our
audit objectives were to determine whether ICE had an effective system
to track the location of detainees and respond to public inquiries.
Detainees are often transferred from one facility to another for
various reasons including medical, security issues, or other ICE needs.
ICE field offices use the Deportable Alien Control System to track
detainees. This system automates many of the clerical control functions
associated with the arrest, detention, and deportation of illegal
aliens. The system provides management information concerning the
status and disposition of individual cases, as well as statistical and
summary data of cases by type, status, and detainee-specific
information including the detainee assigned number, name, country of
origin, book-in date, and detention facility.
Our audit determined that the detainee tracking system, for five of
the eight ICE detention facilities tested, did not always contain
timely information. At the five facilities, data for 10 percent of the
detainees examined were not recorded in the ICE tracking system within
the first 5 days of detainment. ICE procedures stipulated that detainee
data should be recorded in Deportable Alien Control System as soon as
possible, usually within 2 business days from the date of detainment.
At six of eight ICE detention facilities tested, Deportable Alien
Control System and detention facility records did not always agree on
the location of detainees, or contained information showing the
detainee had been deported. Inaccurate detainee information reduces
ICE's ability to correctly identify the actual location of detainees
and to verify that individuals have been detained. There is also the
potential for ICE to under- or overpay detention facilities because of
incorrect data.
ICE had no formal policy regarding what information it would
provide to anyone inquiring about detainees in their custody. However,
the four field offices we visited and the eight detention facilities
contacted said that they would confirm whether the detainee was held in
their facility. Requests for more detailed information would be
referred to ICE headquarters.
To address these challenges, we made three recommendations. We
recommended that ICE:
Issue formal instructions to field offices requiring timely
Deportable Alien Control System entries and proper supervisory
review;
Perform daily/periodic reconciliations of system data; and
Obtain a reimbursement of the $7,955 in ICE net
overpayments.
ICE concurred with all three recommendations.
In summary, I believe we all can agree that significant number of
foreign visitors, who enter the United States legally, overstay their
authorized period for admission, and enforcing the law and ensuring
that foreign visitors leave the country as scheduled while continuing
to make the United States a welcome place for foreign travelers is an
important but challenging balance to maintain. Biometrically-enabled
entry capabilities are operating at the vast majority of air, sea, and
land ports of entry, and is identifying previous visa violators and
others whose admissibility is questionable. However, the use of a
comparable exit capability remains unclear.
Mr. Chairman, Members of the committee, you can be sure that my
office is committed to continuing our oversight efforts for this
challenging and complex issue in the months and years ahead.
This concludes my prepared statement. I would be happy to answer
any questions you or the Members of the committee may have.
Chairman Thompson. Thank you for your testimony.
I now recognize Mr. Alden to summarize his statement for 5
minutes.
STATEMENT OF EDWARD ALDEN, SENIOR FELLOW, COUNCIL ON FOREIGN
RELATIONS
Mr. Alden. Chairman Thompson, Ranking Member King,
distinguished Members, thank you very much for inviting me to
testify on the issue of visa overstays.
I just want to set this hearing into a bit of context. I
have been observing and writing about U.S. efforts to secure
the borders since 9/11. I was reflecting this morning on what
an extraordinary undertaking this has been. The United States
has historically been an open country in which the Federal
Government knew very little about who was coming or going. That
openness has been a great strength, bringing to our shores the
talented, restless, and ambitious from across the world.
But in the new age of terrorism, that same openness also
proved a dangerous weakness. We are still in the early stages
of trying to figure out how, in this new world, to manage the
borders, to manage visa policy, and to manage immigration in a
way that preserves America's strengths, but reduces its
vulnerabilities. That is not an easy thing to do. There have
been, and will be, mistakes in both directions.
On the issue before us, Congress has long pushed for a
biometric system that would identify all those who come
lawfully to the United States, but then overstay their visas.
Considerable progress has been made, and pilot projects have
been tested, but such a system has yet to be deployed. This
hearing serves as an excellent opportunity to reassess future
directions, and to ensure that, in dealing with visa
overstays--that perfect will not be the enemy of the very good.
I have four points to make briefly. First, even without a
biometric exit system, the Department of Homeland Security has
made considerable progress through the use of passenger
manifest data. DHS collects from all airlines advanced
information, including names and nationalities and passport
numbers, on all incoming passengers. That information has been
vital in helping to identify potential terrorists and criminal
threats.
Since February 2008, DHS has also required airlines to
transmit the same passenger information for departures to
determine whether those who arrive by air are leaving before
their visas expire.
There are certainly limitations in using this data to track
visa overstays. A traveler could arrive by air and leave over
the land borders, for instance, and not be traced. Or a dual
national could enter on one passport and leave on another.
Therefore, DHS cannot know for certain that a particular
traveler has remained illegally in the United States.
These are real issues. If identifying visa overstayers were
critical for preventing future terrorist attacks, that
uncertainty would be an unacceptable risk. But that is not the
case--which leads to my second point. The reason to track
overstays is to discourage illegal immigration. Exit tracking
is not a counterterrorism tool. There are other, better means
available for dealing with those who violate their non-
immigrant visas. I would be happy, in the questions, to talk
about the Atta and Rahman and Smadi cases, because I think they
are often misunderstood.
The fundamental challenge with regard to foreign-based
terrorists is to keep them out of the United States. Congress
and this administration have correctly made it a priority to
improve entry screening systems such as US-VISIT entry,
electronic system of travel authorization for visa-waiver
countries, and international data-sharing on lost and stolen
passports.
Even if all overstays could be positively identified,
Immigration and Customs Enforcement lacks the resources to
routinely track down, arrest, and deport those individuals. ICE
is rightly focused on removing illegal immigrants who also have
criminal records or otherwise pose a greater risk. Certainly,
there is much the United States can do to stop individuals from
overstaying their visas and remaining illegally.
Last year, the State Department rejected more than 2
million visa applicants, most because they were considered
potential overstayers. There are harsh penalties, including 3-
and 10-year bars for those who overstay visas. Indeed,
sometimes, those need to be implemented with greater
flexibility than we have seen.
It has become easier to identify overstayers. Just in the
past year, all State Department consular officers can now
search the DHS database that identifies most air travelers who
leave after their visas expire. That information will soon
appear automatically on the screen of every consular officer
who adjudicates the visa.
Third, the Government must be very careful that any
additional measures to prevent overstays do not discourage
other travelers and would-be immigrants. Overseas travel to the
United States fell sharply after 9/11, and had yet to recover
even before the current recession. Foreign-student numbers
dropped as well. This has hurt the U.S. economy and harmed our
image abroad by preventing people from coming to see this
country for themselves.
In working towards biometric exit, the Bush and Obama
administrations should both be praised for proceeding
cautiously to avoid new measures that drive away lawful
travelers, which leads me to my final point. The costs of
deploying a full biometric exit capability as currently
envisioned by Congress are likely to exceed the benefits.
Central philosophy underpinning DHS since its creation is
in the idea of risk management; but the costs of new security
procedures should be carefully weighed against the expected
benefits. A biometric exit system does not pass that test.
Congress and this administration should instead look at
whether further accuracy in tracking visa overstays could be
realized through a combination of biographic and biometric
means, rather than through a pure biometric approach.
Thank you. I look forward to responding to your questions.
[The statement of Mr. Alden follows:]
Prepared Statement of Edward Alden
March 25, 2010
Chairman Thompson, Ranking Member King and distinguished Members of
the Committee on Homeland Security, thank you for the opportunity to
testify today on the issue of ``Visa Overstays: Can They be
Eliminated?''. Congress has long sought the creation of a system to
allow the U.S. Government to identify accurately those who come
lawfully to the United States but then overstay the terms of their
entry. Considerable progress has been made, but a range of obstacles
has so far prevented its completion. This hearing serves as an
excellent opportunity to reassess future directions, and to ensure
that, in the effort to discourage visa overstays, the perfect will not
be the enemy of the very good.
I will make four points in the testimony that follows:
First, the problem of identifying all those who overstay their
visas or other entry conditions remains unsolved, but the Department of
Homeland Security (DHS) has made significant and under-recognized
progress for air departures through the use of passenger manifest data.
Congress should encourage the administration to build on these
accomplishments rather than insisting on a fingerprint-based, biometric
exit system for identifying visa overstayers.
Second, the primary value of a system for tracking overstays is to
bring greater integrity to U.S. immigration laws and to discourage
illegal immigration. Exit tracking has little or no utility as a
counterterrorism tool, and there are other better tools available for
discouraging illegal immigrants who choose to overstay their
nonimmigrant visas.
Third, the Government must be extremely vigilant that the
deployment of additional measures to prevent overstays does not have
the unintended consequence of deterring lawful travelers to the United
States. Travel to the United States fell sharply following the
September 11 terrorist attacks, and overseas travel had yet to recover
to pre-9/11 levels even before the current recession. Discouraging
foreign travel has hurt the U.S. economy, and damaged America's ability
to project its values by encouraging people to come to the United
States and see the country first-hand rather than through a foreign
media lens.
Finally, the costs of deploying of a full biometric exit capability
as currently envisioned by Congress are likely to exceed the benefits.
The United States should consider seriously other options at the land
borders, especially better use of RFID capabilities already embedded in
many identity documents and data sharing with the Canadian and Mexican
governments that would allow the United States to access records for
those entering Canada and Mexico across the land border.
it remains difficult to identify all visa overstayers, but there has
been significant progress in tracking air departures
There has long been considerable uncertainty about how many of
those living out of status in the United States initially entered the
country on legal visas. Demographers at the old Immigration and
Naturalization Service estimated that 41 percent of the illegal
immigrant population had entered legally but then overstayed non-
immigrant visas. That 40 percent figure is the one still most commonly
cited. A 2002 study by Douglas Massey and others based on survey data
produced a similar estimate that 42 percent of the illegal immigrant
population had overstayed a visa. The Pew Hispanic Center in 2006
estimated that about 45 percent of the illegal immigrant population was
overstayers.
These are only estimates, however, because the Government still has
no fully reliable method for tracking those who overstay. Everyone
entering the United States on a nonimmigrant visa is required to fill
out a form I-94 Arrival/Departure record, or an I-94W for visitors from
Visa Waiver Program (VWP) countries. When an individual is inspected by
a Customs and Border Protection (CBP) officer at the arriving airport
or at the land border, the bottom third of the form is detached and
given to the traveler. That departure record is supposed to be returned
to the airline or shipping agent upon departure, or to Mexican or
Canadian officials for land border exits. Those departure stubs are
then matched against arrival records as part of DHS's Arrival and
Departure Information System (ADIS) created in 2002 to help monitor
visa overstays. In practice, however, matching is well short of 100
percent for a variety of reasons, including lost stubs, fraud, failure
by airlines to collect the forms, individuals changing their visa
status after they arrive in the United States, or individuals entering
by air and leaving by land.
Congress first legislated the creation of a comprehensive entry-
exit system to track visa overstays in 1996 as part of the Illegal
Immigration Reform and Immigrant Responsibility Act (IIRIRA). As I
detail in my book, The Closing of the American Border: Terrorism,
Immigration and Security Since 9/11, that requirement was strongly
resisted by State and local governments and businesses along the land
borders with Mexico and Canada, which feared that an exit tracking
system would create costly delays and damage cross-border travel and
trade. Among the opponents of the 1996 provision was Tom Ridge, then
the Governor of Pennsylvania. Partly as a result of such opposition,
the scheme never made it past the pilot stage.
Since the 9/11 attacks, Congress has mandated and the
administration has pursued the creation of a comprehensive entry-exit
system in which the identity of arriving and departing travelers would
be verified through biometrics. On the entry side, the DHS has
fulfilled this mandate by establishing the United States Visitor and
Immigrant Status Indicator Technology (US-VISIT) Program at all
international airports, and at nearly all land border ports of entry.
Through US-VISIT, CBP officers collect fingerprints and photographs for
all arriving overseas travelers. At the land borders, however, the
entry system exempts both Mexicans and Canadians, which means that only
third-country nationals are enrolled in US-VISIT when they enter the
country via land. This has been a practical necessity. Given the volume
of daily crossings at the land borders--about 300 million land
inspections occur each year, down from more than 400 million a decade
ago--taking fingerprints from all arriving travelers would be
impossible without unacceptable delays to cross-border commerce and
movement of people. Instead, DHS has moved forward with the Western
Hemisphere Travel Initiative (WHTI), which requires secure
documentation such as passports, enhanced driver's licenses or trusted
traveler cards for cross-border travel. The WHTI is still in the
process of full implementation, but the initial indications are that
the requirement has produced substantial improvements in document
security with little or no disruption to the flow of cross-border
travel.
Efforts to establish an exit system have faced greater hurdles. The
most recent Congressional deadline for establishment of a biometric
exit system from U.S. airports passed June 30, 2009 with no system
deployed, though pilot programs have tested different alternatives. The
administration published a proposed rule in April, 2008 that would
require the airlines to collect and transmit to DHS the fingerprints of
departing foreign nationals leaving the United States. But the airlines
have pushed back strongly, and are opposed to absorbing the costs of
the new system or to finding themselves in the middle of contentious
disputes over privacy. DHS has done several pilots on biometric exit.
From 2004 to 2007, the Department carried tests at a dozen airports
with kiosks that required travelers to present themselves for exit. The
technology was successful but compliance rates were low. Last year, DHS
undertook two additional pilots. In Detroit, CBP officials were
deployed to departure gates to record fingerprints of departing foreign
nationals. In Atlanta, Transportation Security Administration (TSA)
officials collected biometrics at the TSA check-in points. In both
cases the pilot tests showed that the technology was adequate and that
traveler delays were minimal, but both tests required intensive use of
Government personnel which would be costly to replicate at all
international airports. No airline has yet agreed to participate in a
pilot test.
Despite the difficulties in meeting the Congressional mandate for a
biometric entry-exit system, DHS has made considerable progress in
improving the tracking of departures from U.S. airports through the use
of passenger manifest data, which is entered into the ADIS database.
The collection and use of such data is one of the great success stories
of the post-9/11 DHS. Immediately following the terrorist attacks, one
of the highest priorities for CBP was to begin collecting from all
foreign airlines advanced information (including name, nationality, and
passport number) on all incoming passengers. That data has been vital
in helping DHS to identify passengers who should be kept off planes
entirely (the ``no-fly'' list), those on terrorist watch lists who
require intense scrutiny, and others who should be pulled aside for
secondary screening when they arrive in the United States.
Since February, 2008 DHS has also required airlines to transmit the
same passenger manifest information on passengers departing from the
United States. Compliance with this requirement is in the range of 99
percent, according to DHS officials. That has allowed the Department to
match up passenger data for arriving and departing passengers, giving
DHS a much more complete picture of whether individual foreign
nationals are departing before their visas expire.
The biggest success in this regard has been the VWP, which accounts
for the majority of overseas travel to the United States. In November,
2008, then-DHS Secretary Michael Chertoff certified that DHS had met
the Congressional requirement to match positively the identification of
97 percent of foreign nationals departing the United States by air.
That system continues to improve as airlines have enhanced their
collection and dissemination of passenger manifest data.
There are certainly limitations in using manifest data for tracking
overstays. A traveler who arrives by air could leave over the land
borders, for example, and not be traced. Or a dual-national could enter
the country on one passport and leave on another. Given those
possibilities, it is difficult for DHS to conclude with certainty that
a particular traveler who has failed to return home in time has in fact
remained in the United States in violation of his or her entry terms.
The Government Accountability Office has pointed out these and other
shortcomings in the methodology used by DHS to meet the 97 percent
match rate.
These are real issues, and if identifying visa overstayers were a
critical matter for protecting the United States against future
terrorist attacks, that uncertainty would be an unacceptable risk. But
that is not the case.
overstay tracking is primarily a tool for managing and enforcing
immigration laws, not for preventing or discouraging terrorist attacks.
there are more effective tools available for curbing illegal
immigration
The initial post-9/11 impetus for tackling the issue of overstays
was the fear of another terrorist attack. In particular, some in the
Justice Department seized on the fact that several of the 19 hijackers
in the plot had overstayed tourist visas and were thus in the United
States unlawfully at the time of the attacks. Significantly, three of
the hijackers had been stopped for traffic violations when they were
living illegally in the United States, including the pilot Ziad Jarrah
who was cited for speeding just 2 days before the attacks. If the
information that those individuals had overstayed visas had been
available to local law enforcement officials, in theory several of the
hijackers might have been detained and deported, potentially disrupting
the 9/11 plot.
In response, in September, 2002 the Justice Department launched the
National Security Entry-Exit Registration System (NSEERS), sometimes
called Special Registration. The program requires that all males
between the ages of 16 and 45 from roughly 2 dozen countries considered
as potential terrorist risks, as well as selected others, be routed
through secondary screening and registered upon arrival in the United
States. Those admitted to the United States on nonimmigrant visas under
NSEERS can only leave the United States through designated airports and
land border facilities at which special exit facilities have been
established. The idea was to establish a functioning entry-exit system
for a small subset of travelers considered higher risk, and one that
would allow for law enforcement officials to be alerted to visa
overstayers. That system remains in place today.
The practical limitations of using overstay data as a terrorist
tracking tool far exceed the potential benefits, however. Why?
First, the fundamental challenge with regard to foreign-based
terrorists is to keep them out of the United States in the first place.
Quite simply, those who come to the United States to carry out a
terrorist attack are unlikely to leave. Congress and the administration
have therefore correctly put priority on improving entry screening
systems--including visa screening, the US-VISIT entry procedures,
advanced passenger information and passenger name records, the creation
of the Electronic System of Travel Authorization (ESTA) for VWP
countries, and international data sharing on lost and stolen passports.
Those are the systems that need to be made as nearly foolproof as
possible. The near-miss Christmas bombing showed both the strengths and
continued problems that remain in the entry systems. CBP analysts had
identified Omar Farouk Abdulmutallab as someone deserving extra
scrutiny while his flight was en route to Detroit. Unfortunately that
same judgment needed to be reached earlier, before he boarded the
plane.
Second, Immigration and Customs Enforcement (ICE) is far short of
the resources that would be necessary to routinely track down, arrest,
and deport visa overstayers. Under the Secure Communities program, ICE
has rightly put its focus on identifying and deporting illegal
immigrants who also have criminal records, not on trying to arrest and
detain all unauthorized immigrants. If the rough estimates of visa
overstays are correct, there may be as many as 4 or 5 million illegal
immigrants who are visa overstayers, requiring that there be some
priorities set in deploying limited ICE resources to track and arrest
such individuals.
Third, and more plausibly, DHS could routinely make information on
visa overstayers and other visa violators available for local law
enforcement officials through the FBI's National Crime Information
Center (NCIC) database. That would allow for overstayers to be
identified through routine traffic stops and other encounters with
local police who had been authorized to check for immigration
violations under the 287(g) program. But that would still raise the
issue of limited ICE resources to detain and deport those individuals,
and would further expand the 287(g) program, which has been resisted by
most local police forces as potentially interfering with their
fundamental mission of maintaining peace and security in their
communities.
Some will point to the recent case of Hosam Maher Husein Smadi, a
19-year-old Jordanian visa overstayer who was accused of attempting to
blow up a Dallas office tower last September. The issue of whether an
exit tracking system might have stopped him received front page
treatment in the New York Times last October because Smadi was pulled
over by a sheriff in Ellis County, Texas for driving with a broken
taillight just 2 weeks before the attempted bombing. Critics have
argued that if the evidence that Smadi was a visa overstayer had been
available to the sheriff, Smadi would have been detained and handed
over to ICE for removal. Instead he was jailed overnight and released.
But given the circumstances of the case, that claim does not hold up to
scrutiny. Under the improved information-sharing arrangements put in
place since 9/11, the sheriff was able to learn immediately that Smadi
was the subject of an FBI investigation. Indeed, it appears that the
FBI ordered Smadi to be released. The attempted bombing of the Dallas
skyscraper turned out to be a sophisticated sting operation mounted by
the FBI; had Smadi been held on immigration charges by local police,
the sting would have been disrupted and Smadi would potentially have
faced only deportation rather than criminal terrorism charges.
The limitations of overstay tracking as an effective
counterterrorism tool have long been recognized by Congress. For
instance, a Senate Judiciary Committee report on 1997 legislation that
would have exempted the land borders from an automated exit system
stated the following:
``The Committee is keenly aware that implementing an automated entry-
exit system has absolutely nothing to do with countering drug
trafficking, and halting the entry of terrorists into the United
States, or with any other illegal activity near the borders. An
automated entry-exit control system will at best provide information
only on those who have overstayed their visas. Even if a vast database
of millions of visa overstayers could be developed, this database will
in no way provide information as to which individuals might be engaging
in other unlawful activity. It will accordingly provide no assistance
in identifying terrorists, drug traffickers, or other criminals.''
Stewart Baker, the former assistant secretary for policy at DHS in
the George W. Bush administration, has rightly said that an exit system
is ``an immigration accounting system. It's less about safety and more
about immigration record-keeping.''
So does this mean that the United States can do nothing to
discourage individuals from overstaying their visas and remaining
illegally to live and work in this country? Not at all.
Indeed, under the current system, enforcement against visa
overstayers has increased significantly. The primary enforcement tool
for penalizing visa overstayers is to deny them re-entry to the United
States should they attempt to return. Even with the limits of the
current exit tracking system through the I-94s and passenger manifest
data, the number of individuals denied visas or stopped from re-
entering the United States has increased significantly each year.
Congress already has strong laws on the books that penalize visa
overstayers. Under IIRAIRA, those who overstay a visa by more than 6
months and then depart are barred for 3 years from returning to the
United States. Those who overstay by a year or more are barred for 10
years. Indeed, the real problem with the current implementation of
IIRAIRA is not lack of penalties, but the need for greater flexibility
in implementation to ensure that people who inadvertently fall out of
status are not wrongly barred from returning to the United States.
The effort to prevent overstays is already one of the primary
missions of State Department consular officers. In fiscal year 2009
nearly 2 million out of 7.7 million visa applicants were refused, most
because the consular officer suspected they would overstay their visa.
Over the past year, all State Department consular officers have
acquired access to the ADIS database, which allows them to do a special
query to determine if the visa applicant has been identified by DHS as
a visa overstayer. The State Department will soon be able to deploy
ADIS so that the overstay information automatically appears on the
screen of each consular officer during the visa adjudication process.
As travelers become aware of this capability, the deterrent effects for
potential visa overstayers will grow.
What about those who remain in the United States and make no effort
to return home? Here, the tools should be the same ones that can be
used to discourage any sort of illegal immigration. With respect to
enforcement of immigration laws, there is no reason to treat visa
overstayers differently from other unauthorized migrants. Their mode of
entry may have been different, but otherwise they are the same as an
illegal immigrant who crossed between the ports of entry. Indeed,
efforts by the State Department and CBP to improve entry screening
before or at the ports of entry are largely analogous to efforts by the
Border Patrol to strengthen enforcement between the ports of entry. The
most effective interior enforcement tool is to deny jobs to
unauthorized immigrants, and the E-Verify system shows promise here
despite its growing pains. But enforcement should coupled with a
comprehensive overhaul of immigration laws that includes reforms to
create new legal paths for those who wish to live and work temporarily
or permanently, and an earned legalization program that would allow
many unauthorized migrants (including visa overstayers) to earn to
right to remain in the United States. The Independent Task Force on
U.S. Immigration Policy, which was chaired by Jeb Bush and Mack McLarty
and for which I served as project director, makes a series of
bipartisan recommendations for reforming the U.S. immigration system
along these lines.
any new measures to identify visa overstayers should be done in ways
that do not discourage lawful travel to the united states, which
benefits both the u.s. economy and american diplomatic efforts
The recently released DHS Quadrennial Homeland Security Review
states that: ``Secure, well-managed borders must not only protect the
United States against threats from abroad; they must also expedite the
safe flow of lawful travel and commerce.'' It sets out three central
goals for U.S. policies to protect the homeland: Security against
terrorist and criminal threats; resilience to allow for rapid recovery
in the event of attacks or natural disasters; and customs and exchange,
expediting and enforcing rules for lawful trade, travel, and
immigration.
One of the successes of the US-VISIT entry program is that it has
been implemented with little disruption to the entry of lawful
travelers into the United States. The program was carefully piloted,
and then rolled out initially for visa travelers when it became clear
that it was possible to capture two digital fingerprints rapidly for
each traveler. That success allowed for the later expansion to visa
waiver travelers, and then to the more recent capture of ten
fingerprints rather than two, which increases accuracy and improves
security. Each step was taken by DHS only when it became clear that
security enhancements were possible without significant disruption to
lawful travelers. The carefully negotiated agreements with the European
Union that resulted in the sharing of passenger information and the
creation of ESTA were similarly implemented with minimal impacts on air
travelers. The WHTI at the Northern and Southern borders and for
Caribbean air and ship travel is also improving security with little or
no negative impact on cross-border flows.
The same cannot be said of some of the other border security
measures enacted following the 9/11 attacks. The additional scrutiny of
visa travelers under the Visas Condor and Visas Mantis programs, for
example, contributed to a sharp drop in visa travel to the United
States for several years, with the number of visas issued dropping from
over 7 million in 2000 to fewer than 5 million by 2003. As recently as
last year, long delays continued to plague visa applicants from China,
India, and Russia who were working in technology fields because of the
National security reviews required for these individuals.
The impact was especially acute with NSEERS, which has proved
highly burdensome to travelers from the targeted 2 dozen countries.
Travel to the United States from these countries remains sharply
depressed at roughly 60 percent of pre-9/11 levels. The number of visas
issued for Pakistanis, for instance, was 88,000 in the year 2000; last
year it was just 33,000. From Indonesia the drop has been from 70,000
to 42,000. These are the very countries where the battle for hearts and
minds is being fought, and where the United States should be
encouraging more people to see this country through their own eyes
rather than through the distortions of local media.
While travel to the United States had partially rebounded before
the current recession, the United States has lost ground as a
destination for international travelers. The U.S. travel industry has
estimated that an additional 68 million visitors would have come to the
United States over the past decade if it had simply kept pace with
global long-haul travel trends.
In considering the creation of a biometric exit system, then, both
the Bush and Obama administrations should be praised for proceeding
cautiously to ensure than any new measures do not unduly discourage
lawful travel. The premature rollout of an exit system at the land
borders in particular could have extraordinarily negative consequences
for cross-border travel and trade with Mexico, the largest and third-
largest U.S. trading partners respectively. The last detailed
evaluation of the land border exit option by the Government
Accountability Office, in December 2006, concluded that, given current
technologies, a biometric exit system would require a costly expansion
of land port facilities and would produce major traffic congestion.
This would come even as major improvements are still needed in the land
border entry facilities, though funds provided through the stimulus
package are beginning to address some of those needs.
the costs of deploying of a full biometric exit capability as currently
envisioned by congress are likely to exceed the benefits
The central philosophy underpinning DHS since its creation has been
the idea of risk management, that the costs of new security measures
should be carefully weighed against the expected benefits. By any
measure, deployment of a biometric exit system will be expensive. While
DHS has not released official estimates, biometric exit in the air
environment is certain to run into the billions of dollars,
particularly if CBP or TSA staff must be used to capture the
biometrics. A land border exit system would be more expensive still,
and the potential for disruption of two of the largest cross-border
trade and travel relationships in the world is significant.
Given the costs and difficulties associated with biometric exit,
Congress and the administration should take a serious look at whether
further accuracy in tracking visa overstays could be realized through a
combination of biographic and biometric means rather than a pure
biometric approach. The use of passenger manifest data has demonstrated
the promise of this approach in the air environment. Congress and the
administration would do well to build on this approach rather than
continuing to hold out for a costly biometric exit system that would
bring only minimal gains in terms of additional accuracy. Unless a
fully functioning biometric land exit system can also be constructed,
biometrics in the air environment will still not allow the United
States to know with certainty if an individual has overstayed a visa
and remains illegally in the United States. As such, biometric exit at
airports would be a very costly addition with very small benefits in
terms of additional information on overstayers.
At the land borders, a biographic approach also shows greater
promise. The new rules under WHTI have required American, Mexican, and
Canadian travelers to acquire secure documents that allow for accurate
records of who is crossing the border into the United States and,
potentially, who is leaving. Everyone exiting across the land borders
of the United States is also entering either Canada or Mexico. The
administration should explore the possibility of data sharing with both
countries regarding their inbound travelers. In the case of Canada,
there have been on-again, off-again discussions between the two
countries sharing data, so that Canada would inform the United States
on its border entries and vice-versa. There are certainly difficult
impediments to such a negotiation. Canada does not currently have the
same document entry requirements as the United States, and would have
to move forward on those. The fact that four Canadian provinces have
already adopted WHTI-compatible enhanced driver's licenses would make
such a transition reasonably easy for Canada. It would also be easier
to negotiate an agreement that was initially limited to third-country
nationals, assuaging Canadian concerns about sharing data on their own
citizens. If the United States continues to insist on a biometric exit
system, however, there is little prospect of success in such a
negotiation, since Canada is unlikely to establish biometric entry
requirements at its land borders.
If such a deal cannot be negotiated, there continue to be promising
developments in RFID technology that could allow for a remote scan of
the identification documents of cross border travelers as they are
leaving the United States. WHTI-compliant documents are already RFID-
enabled, so the building blocks are in place for a system that could
identify travelers departing by car through remotely-read documents,
without requiring drivers to stop and give a fingerprint or other
biometric upon exiting the land borders. While there are still hurdles
to overcome, such a system shows particular promise for the southwest
border, where cooperation with the Mexican government poses even
greater obstacles than on the north border.
conclusion
To conclude, my answer to the question posed by this hearing--Can
visa overstays be eliminated?--is ``not entirely,'' at least if there
is any reasonable calculation made of costs and benefits. But there has
already been a great deal of progress over the past several years, and
DHS and other Federal agencies should be encouraged to build on that
progress rather than investing heavily in the creation of a new
biometric exit capability.
Thank you, and I look forward to responding to your questions.
Chairman Thompson. I thank all the witnesses for their
testimony.
I remind each Member that he or she will have 5 minutes to
question the panel.
I now will recognize myself for questions.
I guess the point, to start with, is, according to the
testimony of the witnesses, there are some of the number of
illegal people here in this country--40 percent that--I would
assume that is around 4 million. That is the kind of the number
we are talking about? Okay.
Can you describe for me, Mr. Beers, how the Department
proposes--and you outlined those three issues--is that
realistic given the budget that we have been submitted by the
Department?
Mr. Beers. Sir, with respect to the improvements that we
have instituted in the system, I think that they are all within
the budget capabilities of our current and requested budgets
for US-VISIT. If you are asking the larger question with
respect to biometric air exit, I can go on, on that particular
issue.
Chairman Thompson. Well, I think the question is framed so
that we need to ensure a system that minimizes, if not
eliminates the number of overstays, and whether or not the
budget that is requested would allow that to occur--looking at
all the issues, whether it is the air exit or whatever.
Mr. Beers. Yes, sir.
With respect to the US-VISIT contribution, independent of
the issue of biometric air exit--with respect to the US-VISIT
contribution to the identification of overstays, which is what
our role in this process is, we believe that the budget that we
have currently, and the budget that we are requesting, is
adequate to allow us to identify the individuals who overstay,
based on the entry data and the type of visa that they have, so
that we can flag any individual that we do not have matching
data, with respect to the exit information that we currently
receive, which is biographic information. That allows us to
flag those individuals and to provide to ICE those individuals
that fall under the National security criteria that ICE has
given us to pass that information, in detail, to them.
We, in addition to simply matching that biographic
information that we receive at exit against the entry
information, also look at other information, other databases,
to provide any other assistance that we might be able to, on an
individual, when we pass that information to ICE, so that as
much of the preliminary data collection as possible can be done
by US-VISIT, rather than giving ICE simply a name and a visa
number.
That is the information sharing that we have agreed upon
with ICE.
Chairman Thompson. Thank you very much.
Mr. Morton, can you provide for the committee--of those
names that you referred to for overstay to--what percentage of
those individuals do we apprehend?
Mr. Morton. A very, very small fraction.
Chairman Thompson. Why is that?
Mr. Morton. A number of reasons.
First of all, what we get from US-VISIT--they have done
their best to do some initial screening. But a great deal of
further screening is needed to be done to see whether or not
the people, in fact, left; whether or not we have an address to
even start an investigation.
Then, there is a very real challenge for us of competing
enforcement requirements: Do I devote resources to trying to
investigate whether somebody has overstayed their visa, for
example, in Orlando? Or do I put those same resources to the
identification of an absconder; to assist the Border Patrol
with removing somebody who was apprehended at the border; or to
go to the local jail? Yes, sir?
Chairman Thompson. Thank you.
Mr. Skinner, you have heard the existing system of how we
do and manage overstays. I know some of your information is a
little dated. But based on what you heard, can you provide the
committee with what recommendations, or any, that you have had,
to the Department?
Mr. Skinner. What we have seen since we issued our report
in 2005 is a buildup of CEU. When we did our audit, they were a
maturing organization. Now, we think they have matured. They do
have policies and procedures in place. They do have better
access to IT systems. So we are seeing improvements.
We are also seeing that we are not going to be able to--
because of resource issues--and I don't know if we could ever
have sufficient resources to address all of the overstays. But
what we need to do, and what I think CEU is doing--CEU--the
Compliance Enforcement Unit in ICE--is targeting those that are
the biggest threat to our society--those that are criminals;
those that have the potential of being terrorists; and those
that are fugitives.
I think until we could have a--and I don't think we ever
will have all the resources needed to go after all overstays--
and until we can do a better job at that, I think what we are
doing now, in ICE and in the CEU, the Compliance Unit, is
focusing on those that are the biggest threat. I think we need
to continue to do that. We need to continue--invest in those
operations.
Chairman Thompson. Thank you very much.
I now recognize the Ranking Member of the full committee,
the gentleman from New York, Mr. King, for questions.
Mr. King. Thank you, Mr. Chairman.
I will direct this question to Mr. Beers and Mr. Morton,
and, you know, give you as much time as you need to answer it.
I mentioned the, you know, biometric entry-and-exit system,
which the 9/11 Commission said would be an effective tool in
fighting terrorism. Mr. Alden seems to suggest that it is not
effective; it is more for controlling immigration than it is
for being a tool against terrorism.
Since the Department is not funding the program this year,
has the Department made a decision as to how worthwhile it is
to pursue it? Have you decided not to pursue it? How do you
evaluate it in the hierarchy of tools combating terrorism?
Chairman Thompson. To the extent you could--if you could
pull the mic as close to you as possible, it, I think, would
help everyone. Thank you.
Mr. Beers. Congressman King, the Department has not made a
final decision on biometric air exit. The study which was
commissioned in the past administration was completed in July
of the past year. The review of the pilot study, which focused
on collection of biometric information at the screening point
of entry into the concourse, and at the gate--the first by TSA,
and the latter by CBP--that review of the pilot study was
completed in the September time frame. It was, then, reviewed
in terms of what the options looked like.
As a result of that review, another option was added to the
series of choices. That review and costing estimates was done
by the end of December. Secretary Napolitano reviewed that
initial review, and asked a series of questions which are now
complete. The second review by her is on her calendar. We
expect to have an answer to that question.
But short answer is, ``No, we are not opposed to it.'' The
reason that there was not any funding in the fiscal year 2011
budget was that the fiscal year 2011 budget was prepared in a
time sequence which did not allow us to provide an accurate
budget estimate for a biometric air exit system.
We do have $50 million that is available, which could start
an initial operating capability program based on what the
decision is, and when the rule that would govern that decision
is in a position to be implemented.
So we can begin that based on the decision process sometime
at the end of this fiscal year, or the beginning of next fiscal
year. We would, then, if--we would, then, be requesting money
in the fiscal year 2012 budget to go to full operating
capability.
Mr. King. Now, you have enough real-life problems to deal
with. But in the theoretical sense, assuming this system could
work, do you believe it is an effective tool against terrorism?
Mr. Beers. I think it would add to our ability to know who
had left the country, with a higher degree of confidence than
the biographic information that is currently available.
Folks can argue about how much, how little. But there is
not a question that it would add to the certainty of the
identity of the people who left the country under this system.
Mr. King. Mr. Morton, do you have any comment?
Mr. Morton. I agree with that. I take some slight quarrel
with Mr. Alden on a stark division between National security
and general immigration enforcement, when it comes to US-VISIT.
I do think it is an important National security tool. I agree
that it shouldn't be overstated that it is a--the sort of sole
solution. But with regard to specific cases, it is very
important. That is obviously how we orient the CEU.
In addition, I think that general immigration enforcement
is good National security work. Now processes and procedures
that people exploit to come to the United States unlawfully can
be exploited by people with more nefarious intentions. It is
important to make sure that our system has credibility to keep
those folks out.
Mr. King. Mr. Morton, I hate to ask you a question with 20
seconds to go.
I would just say that, I think, one thing that we have
learned on this committee over the last 6, 7 years, is that
there is no silver bullet. There is no one technique or tactic
that is going to stop terrorism. But we believe in multiple
layers of defense. I would think that the biometric entry-and-
exit system would be another layer.
So, I mean, you go to a doctor--they take various tests.
Maybe there is no one test that shows what you have. But look
at all of them, they can come up with a diagnosis. It would
seem to me that this is an essential layer to be used in the
struggle against terrorism.
But I would ask your comments now.
Mr. Alden. Yes, I would just briefly say I agree with you
on the notion of a layered approach. But I think the most
important layers are the entry layers. So the question, here,
is, first, ``What would the resource costs be for deploying the
sort of system we are talking about?'' The problems at the land
border dwarf those in the air environment. So there is just a
fiscal cost of doing it.
The second cost is--what is the cost going to be in terms
of disruption of lawful travelers? So that means this has to be
a very efficient system that you can carry out, without making
it so difficult for people traveling to the United States, that
they don't want to come here anymore.
So if you could do that--if you could do it within limited
cost; if you could do it in a way that did not harm ordinary,
lawful travelers, then I would be more enthusiastic about it. I
don't think we are there yet. It is not that we might not get
there down the road. I just think there are other higher
priorities at the moment.
Chairman Thompson. Thank you very much.
The Chair will now recognize other Members for questions
they may wish to ask the witnesses.
In accordance with our committee rules, I will recognize
Members who are present at the start of the hearing, based on
seniority on the committee, alternating between Majority and
Minority. Those Members coming in later will be recognized in
order of their arrival.
The Chair now recognizes the gentleman from Texas, for 5
minutes, Mr. Cuellar.
Mr. Cuellar. Mr. Chairman, thank you very much for having
this meeting.
I guess, when we look at the two broad classes of aliens
that are issued visas, you have the immigrants and the non-
immigrants. I guess, to address this issue, you are looking at
resources--and I am trying to follow the line that the Chairman
was just following--the resources; technology and personnel;
and, then, the strategy as to what sort of priority do you
put--and I guess the most violent individuals is the priority
that we are looking at right now.
But on the technology part, isn't there something besides
using the biometric system at the border?--and all of us on the
border were concerned about putting those huge lines there. But
there has got to be a way of using technology to track those
individuals.
If somebody is supposed to be there, let us say--a visa--
how long is visa usually--or student visa? Any kind--business
visa, student visa--or, generally speaking, Mr. Morton, what is
it?
Mr. Morton. A tourist visa, for example--more typically,
30, 60, or 90 days.
Mr. Cuellar. Okay.
Isn't there something that allows you--to prompt you when
that time comes out--that we can use? I mean, we don't have to
develop a fancy technology. I am sure there is something
available right now that can prompt you. Even if you asked
those individuals--``Hey, call,'' or do something. If you don't
get that--and I know you don't need to have ICE agent to do
that work. You can have civilians to do that work and then give
it to the ICE agents--to the deportation folks who go get them
and find them.
But isn't there something that we can look at, using the
technology--and, keep in mind, that there are--a large number
of people have been here for a long time. At least, before they
set their roots--that they have set their roots already for a
long time--at least start that system when the new folks are
coming in and staying--isn't there something that is available
that we can use at this time?
Mr. Morton. I think that is an excellent question. I think
you have touched on the promise of US-VISIT, in a nutshell. I
will let Mr. Beers sort of get into the details. I think there
are some things that do have some real promise from a
technology perspective. Just the way we treat visa-waiver-
program applicants versus actual visa-holders holds promise.
Right now, for the visa-waiver program, before you even
come to the United States, you go on-line, through a program
known as ESTA. You provide a great deal of information to the
Government, all automated, in fields that we determine. As a
result, we have a great deal more information about you, in
case you don't follow the rules.
With your visa, you fill out your I-94 on the airplane, and
that is where it can be a bit of a challenge for ICE. Even with
the very best screening at US-VISIT, if all you put down on
that form is, ``I am staying at the Marriot in--in Orlando,''
it is going to be real tough for us 60 days later, to try to
find you, and----
Mr. Cuellar. Mr. Morton--I mean, if you let something get
cold--and I think the longer you give it time, you know very
well, the harder it is. Again, I am saying--at least looking
for some sort of priorities to address that.
Mr. Chairman, I am going to ask again if all four of them
could give us--following your line of questioning, Mr.
Chairman--if you can give us some ideas, because we need to
think outside the box on this. I agree we have got to set the
strategies, and all that. But there has got to be some systems
and protocols and technology that we can use right now.
Now, if you can ask, Mr. Chairman--a certain period of
time--I will let you decide on that time--if you all can submit
those ideas following--the other question I had, before my time
is coming over--I am looking at an AP story. One of my former
colleagues in the State legislature, Senator Eddie Lucio of
Brownsville, is talking about--I think the State prisons has
about 11,400 foreign nationals that--and I understand the
argument. Some are rapists. Some are murderers. Maybe some of
them are there for a lesser time of period. I am talking about
prison.
I would like for you to help me respond to my former
colleague at the State legislature. I understand. I don't want
to let out the rapists and the murderers. I am in full
agreement. But are there any folks that you all can screen,
and--because they are going to be coming up--the State
legislature is going to come up with that. I can tell you--I
have served in the State legislature 15 years--about 15 years.
I know what my colleagues are going to do.
Mr. Morton. Mr. Cuellar--and the short answer to your
question is, ``Yes,'' we do receive, from State authorities,
early releases. That you have already noted--one of the
important issues is that, when we receive somebody, we receive
them for purposes of removal, so that to the extent that people
are being released to us, they won't complete the full range of
their sentence. But we already accept early releases from a
number of States. I would be happy to help you with Texas.
Mr. Cuellar. Okay. Thank you very much.
Thank you, Mr. Chairman.
Chairman Thompson. Thank you very much.
The Chair now recognizes the other gentleman from Texas,
Mr. Smith.
Mr. Smith. Thank you, Mr. Chairman.
First of all, Mr. Skinner, I appreciated what you said in
your report about the problem being, I think, twofold--limited
resources that are not efficiently used--and I appreciated what
Mr. Beers said are the three steps that they are going to take
to try to increase that efficiency. I know Mr. Morton is
working on it as well. I visited with him personally, and know
that he is trying hard to implement some of those proposals.
What I would like to do, first, is get a real sense on the
extent of the problem. Mr. Morton said that he thought 40
percent of the people in the country illegally were visa
overstayers. Mr. Skinner, you have said you thought it was 4
million people. I assume the number you are using, therefore,
is about 10 million people in the country illegally? Is that
correct?
Mr. Skinner. There are studies that suggest that there
could be between 10 million to 11 million people in this
country illegally.
Mr. Smith. Ten million to 11 million.
Now, as I understand it further, those are individuals who
are in the country full-time, as opposed to individuals who are
in the country for a few days or a few weeks or a few months.
If you use that snapshot of a figure as to how many people are
in the country illegally today, for example, it would be closer
to 20 million. If that is the case, would the number of visa
overstayers be closer to 8 million than 4 million?
Mr. Skinner. I wouldn't suggest that it was that high.
Figures that I am using are just based on studies----
Mr. Smith. Right.
Mr. Skinner [continuing]. That have been generally
accepted----
Mr. Smith. Okay, well----
Mr. Skinner [continuing] By the Department as----
Mr. Smith. Well----
Mr. Skinner [continuing]. Reasonably accurate.
Mr. Smith. Right. Again, it is how you define who is in the
country illegally or not.
Mr. Morton, you were, I think, nodding in agreement with
me. Do you agree with the fact that the ``10 million or 11
million people'' refers to individuals who are in the country
full-time?
Mr. Morton. That is right--the 10.8 million estimate.
Mr. Smith. Therefore, if we were to count people who were
in the country not full-time, but part-time, the figure could
be closer to 20 million people?
Mr. Morton. The figure would be larger. I, frankly, don't
know----
Mr. Smith. Therefore, the number of visa overstayers might
be larger than 4 million people as well?
Mr. Morton. It could be in the range. It could be less. It
could be more. But, yes. I would note--I mean, the ranges on
visa overstays are anywhere from a third--the GAO report--to as
much as 50 percent. We have settled on 40 percent, which is
roughly 4.4 million, if you accept the 10.8 million.
Mr. Smith. Let us call it 4 million to 8 million--whatever
the exact figure may be.
It sounds to me--I think this may have been Mr. Beers who
said it--that of those 4 million to 8 million people, we arrest
500 to 600 per year. Is that accurate?
Mr. Morton. That we arrest 600 through the US-VISIT lead--
we also have NSEERS and SEVIS and, then, the General
Enforcement. So the 600 figure is too low. But your basic point
of--that it is a fraction--is correct.
Mr. Smith. The fraction is actually one out of every 8,000,
I believe, if you use the 4-million figure. It could be one out
of 16,000.
Mr. Morton. It is a very small number.
Mr. Smith. It is, obviously, a problem. We are addressing
only a tiny, tiny fraction of it.
This administration would be more credible in arguing that
one explanation is that they don't have sufficient resources if
they had actually requested an increase in resources. As you
all know, whether it be the U.S. exit or US-VISIT--this
administration chose not to ask for a significant increase in
resources. Therefore, I think that that perpetuates the
problem.
Mr. Skinner and Mr. Morton--I think it is Mr. Beers and Mr.
Morton--I do appreciate your acknowledging--and I realize it is
not easy to disagree with a fellow panelist--but I was glad
that you all at least acknowledged that the visa overstayers
could, in fact, represent a National security threat to our
country.
One aspect of that that was not mentioned--and one
explanation for that--could also be the fact that visa
overstayers might become radicalized and, therefore, become
terrorists after they have already entered the country. Surely
those individuals--and we have seen examples and heard of
examples of those individuals today, from 9/11 on--are examples
of individuals who have become radicalized, are terrorist
threats. Therefore, that does show the danger of having so many
visa overstayers in this country and, in my judgment, not
taking sufficient action to try to arrest more than one out of
8,000, at the very conservative figure.
I know you are trying to improve that situation. But, right
now, the message that this administration is sending, frankly,
is that once you get into this country, and if you don't commit
another crime, you are basically home free. I think that that
also sends a signal that results in an increase in illegal
immigration, when people figure if they can get away with that
and not get arrested again, they have passed go and are going
to collect, sometimes, literally, a lot of money from the
Government.
So I hope that that is something that you all will address
better in the future as well. I thank you for your testimony.
Thank you, Mr. Chairman.
Chairman Thompson. Thank you very much.
The Chair now recognizes the gentleman from New Jersey, Mr.
Pascrell, for 5 minutes.
Mr. Pascrell. Thank you, Mr. Chairman.
Mr. Chairman, in comparing 2008 to 2009, there was a
tremendous improvement under the present administration in
enforcement of our immigration rules, contrary to what we have
been hearing for a full 12 months in attacks on our own
patriotism, let alone the facts speak for themselves, whether
you are talking about worksite enforcement or whether you are
talking about overstay enforcement.
I would ask all the members of this panel to examine those
numbers very, very carefully, because they tell very different
story than we have heard from those people who like to wave the
flag and talk. The numbers speak for themselves.
I won't go through them right now. But if you want me to, I
will.
On the issue of immigration, one fact that often escapes
this debate, I think, is that we know that anywhere from 31
percent to 57 percent of the illegal immigrants in this country
entered legally. They actually got here in some legal manner,
shape, or form. I just am curious--Mr. Skinner, do you have
any--can you tell us how many of those folks that are caught,
and we bring them to justice, were working? Do we have any of
those facts?
Mr. Skinner. I don't.
Mr. Pascrell. Does anybody?
Mr. Skinner. ICE may have statistics, when you put it in
its totality.
Mr. Pascrell. Secretary Morton.
Mr. Morton. I don't have exact figures, but I will tell you
that our general experience is that people who overstay,
obviously, overstay for purposes of living here, and they get a
job, and they are employed.
Mr. Pascrell. This flies in the--not a right for foreign
citizens. They should only be issued to individuals with clean
records. All visa guidelines, especially the date of exit, must
be fully enforced. Otherwise, our visa system will just be seen
as a free ticket into our Nation.
I would respond to Mr. Alden--you weren't suggesting that
the Government--in the beginning of your statement--doesn't
have a right to know every person who is coming into this
country and every person that is leaving this country? You do
believe that the Government has that right, correct?
Mr. Alden. No question. I just think it is very difficult
to do practically. We have to be careful that the costs are
worth the benefits. That is my argument.
Mr. Skinner and Mr. Alden--thank you--some people propose
that the Department of Homeland Security should place a
priority on worksite enforcement as a way to reduce visa
overstays. Do you believe that this is necessary? My second
question is: Should the Department of Homeland Security put
more resources into improving E-Verify as part of its approach
to addressing the many overstays that exist in the United
States?
Mr. Skinner. Congressman, we have not studied the issue of
worksite enforcement. That is something that is on our radar
screen, however. As far as ``should'' or ``should not,'' the
Department--make that a priority. I believe the Department has
a responsibility to enforce the laws. If the laws do, in fact,
prohibit employers from using illegals, then I think--then we
have an obligation to enforce those laws. Until those laws are
changed, I think we need to pursue illegals, or the employer
that is hiring those illegals.
Mr. Pascrell. There were 503 on-site document audits in the
last year of the Bush administration. In the first year of the
Obama administration, there was 1,444 on-site document audits.
Now, one could take this and say, ``Well, it wasn't a priority
with the prior administration; it is a priority with this
administration.'' The results are very interesting as to how
many employers were sanctioned.
The very people who don't want to look at the facts of this
situation, and simply want to make every immigrant a criminal--
and the prior administration--they didn't go after the
employers who hire these folks in the first place. The numbers
speak for themselves. If we don't expose the hypocrisy, Mr.
Chairman, who will? Who will?
Thank you.
Chairman Thompson. The gentleman's time is expired.
The gentleman from Georgia, Mr. Broun, for 5 minutes.
Mr. Broun. Thank you, Mr. Chairman.
Gentlemen, it is good to have you all here today.
As the Chairman and Ranking Member have identified, visa
overstays are a huge security gap that must be closed as soon
as possible, along with securing our borders, and the illegal
aliens being expelled. What I found most troubling is the lack
of actual arrests and deportations of those with visa
overstays--those that we are aware of, as well as to those that
are still here that we are not pursuing and not aware.
According to Mr. Morton's testimony today, 40 percent of
unauthorized persons in this country can be attributed to visa
overstays. In fact, four of the 9/11 hijackers have--as it has
already been stated--had overstayed their visas. If individuals
such as these were able to overstay their visas without being
caught, then who else is out there? Who else might be within
our borders, planning to harm Americans?
The gravity of this situation is evident, gentlemen. It is
my sincere hope that the Department is fully committed to doing
whatever it takes to catch those who have overstayed their
visas; who are criminals who have broken the law.
This leads me to my question, which is for you, Mr.
Skinner. What recommendations do you have for improving
overstay identification and apprehension, and deportation?
Mr. Skinner. First is investment of resources. Second is
establishing priorities--who are the most dangerous? Who are
those that we need to target? We can't target everyone. We have
to recognize that. We don't have the resources. Third is an
investment in technology. We can do a better job of integrating
the systems that are currently available to us across
Government--at the Department of State, within the Department
of Justice itself.
We need to continue to invest in integrating those systems
so that we can have a comprehensive database from which we can,
then, better target those that we think need to be identified
and located and removed.
Mr. Broun. How about using local and State law enforcement?
Let me tell you a little story. I have a county commission
chairman in my district that told me about three people who had
broken the law, were in prison, who were illegal aliens, or who
had overstayed their visas. He called ICE and asked them to
come pick these folks up. ICE told him, ``Just let them go,
because we are not going to do anything about this.''
Now, this is deplorable, as far as I am concerned.
Utilizing local and State law enforcement to apprehend, to do
the processing, and then deport these folks, I think, is
absolutely critical. I just throw that out as a point.
My next question is to you, Mr. Morton. Do you believe that
providing DHS with more authority and control over the process
by which visas are issued, on the front end, as Mr. Alden has
talked about, and those that are revoked, would help reduce the
overstay population; and if so, how so or why not? Also, if
granted, would DHS use this authority to be tougher on those
sponsors who overstay their visa?
Mr. Morton. I do agree with Mr. Alden that one part of the
solution to this problem is the best up-front screening
possible so that we only give visas to those individuals that
have a high likelihood of complying with the law, and that we
get as much information up-front from these individuals--I
would say their mobile-phone number, credit-card information--
things like that--so that if they don't follow the law, it is a
lot easier for the agents that work for me--for the officers
that work for me--to go and actually find the people when they
don't comply.
The Department has a fair amount of authority already. It
is one that we share with the secretary of state. So I think
much of what is needed to do a better job has already been
provided by Congress. It is a question of improving the
technology and improving the automated collection of more
information up-front, screening people, ICE doing more visa
security screening.
The building blocks are there. It is really an
implementation question. But in short, I do agree with Mr.
Alden on much of that.
Mr. Broun. Thank you, Mr. Morton.
Mr. Chairman, I would like to make a remark about Mr.
Pascrell's comments. I resent it, because I think that the Bush
administration was totally wrong in not securing the borders.
It was totally wrong in its immigration policies and not
dealing with the illegal aliens in this country. I hope the
Obama administration will have this as an objective. It is a
National security issue that this committee, and you, Mr.
Chairman, have pursued.
The thing is, as far as I am concerned, when he points a
finger and talks about hypocrisy--I think he needs to be very
careful with that, Mr. Chairman. I resent his comments. He is
totally off-base in----
Chairman Thompson. Thank you very much.
I wish he had been here to hear it. But we will go forward.
Mr. Broun. I wish he had been here, too, Mr. Chairman.
Thank you.
Chairman Thompson. Oh, yes, he----
[Laughter.]
I recognize the gentleman from Missouri, Mr. Cleaver, for 5
minutes.
Mr. Cleaver. Thank you, Mr. Chairman.
To some degree, I want to associate myself with the
comments of Mr. Broun, to the extent of asking--because I think
if it is a fact we have got a problem, are ICE authorities
authorized or instructed to tell people who--and local law
enforcement--to release illegal immigrants or undocumented
workers? Is that policy ubiquitously spread across the country,
or regionally, or what----
Chairman Thompson. Excuse me just a minute. There you go;
all right. We want to get your time right. You got your full 5
minutes now. Thank you.
Mr. Cleaver. Mr. Cleaver, here is--it is not that ICE
directs the release of people otherwise independently arrested
by State and local law enforcement. What does happen--and it
does happen with some frequency--is that we tell State and
local law enforcement that we, ICE, are not in a position to
respond to arrest and detain someone they believe is here in
the country unlawfully. It is for the very simple reason that
we don't have enough officers, detention space, to address the
millions of people that are here unlawfully.
We have to place rational priorities on the use of the
limited resources we are provided. So, in some instances, we
simply don't have the officers or detention space to respond to
a particular set of individuals that State and local law
enforcement believe are here unlawfully.
Mr. Cleaver. If this is a significant issue, and if it is,
in fact, a threat to the safety and security of the--of the
public, then it seems to me that it needs to be dealt with as a
significant issue.
In terms of issues facing this country, where would you
rank this issue? I am interested in all four of your comments
in terms of the major issues facing the people of the United
States. We don't want to talk about health care. We want to
talk about, you know, other issues facing the country, with
regard to security.
Where does this issue fit in?
Mr. Beers. Congressman Cleaver, I think that, at least from
my own perspective of having thought about National security
issues for the last 40 years of my life, I have to say that the
highest priority has to be accorded to preventing weapons of
mass destruction from being used against the United States or,
in fact, anywhere in the world.
With respect to the second issue of terrorism, I think that
that--and in particular, terrorists with weapons of mass
destruction--represent a priority National security threat to
this country. To the extent that overstays represent, as they
did in 9/11, a contribution to that, then it is a serious
National security issue. But it is also a extraordinary
challenge to identify those particular individuals, out of the
millions of people who come to the United States every year.
Mr. Cleaver. Do all of the others agree with that?
Yes, sir.
Mr. Alden. I would just add two things. I would agree with
that. But I would--in terms of the topic of this hearing, I
think the biggest priority in terms of terrorism and homeland
security is better and improved entry-screening methods to keep
out people who might harm us. We saw this in the Christmas
bombing--the Abdulmutallab case--the breakdowns in entry
screening.
With respect to immigration enforcement, I think the
improvements in worksite enforcement, the need for some kind of
identification system that allows employers to know that the
people they are hiring are authorized to work. I think there is
a need for a broader overhaul of immigration laws to make those
laws work better.
I would put all of those ahead of completing an exit
system, as priorities.
Mr. Cleaver. Okay.
The reason I raised the question--my time is about to
expire. But, you know, we are going to hire about 16,000 new
IRS agents to cut down on fraud and abuse in Medicare. We need
to do that. But I am saying we need to also argue and fight for
the kind of dollars that are needed for us to do this job, if
it, in fact, poses a threat to the safety and security of the
American public.
Thank you very much, Mr. Chairman. I yield back the balance
of my time.
Chairman Thompson. Thank you very much.
The Chair now recognizes the gentleman from Florida, Mr.
Bilirakis, for 5 minutes.
Mr. Bilirakis. Thank you, Mr. Chairman. Thank you.
First question is for Mr. Morton. Assistant Secretary
Morton, I have been concerned about the inadequate oversight of
student-visa issuance and compliance. There have been numerous
examples, as you know, of individuals violating the terms of
their student visas, including the terrorists involved in the
1993 and 2001 World Trade Center attacks.
Most recently, ICE disrupted visa-fraud schemes in Florida
and in California. We must do more to ensure that terrorists do
not use our student-visa process as a back door into our
country. I think everyone agrees with that.
My questions are: What is the Department doing to ensure
that these students are properly vetted prior to obtaining
these visas? Do ICE visa-security unit personnel review
student-visa applications? How is the Department working with
colleges and universities to ensure that students who receive
the visas are showing up to class and meeting the visa
requirements? What is the Department doing to ensure that these
student visas--these students don't overstay their visas?
Mr. Morton. First of all, the basic sentiments that you
expressed, that we have to have integrity in our student and
exchange programs--I completely agree. As you noted, we spend a
lot of time, unfortunately, investigating and uncovering
schools that are essentially visa-fraud mills on a fairly grand
scale.
To sort of note your basic concern, and to tie it in a
little bit with what Mr. Cleaver was speaking about--from my
perspective, it is both a National security risk--and, plus, it
is just basic good government. I mean we shouldn't have a
system--an immigration system, a student-exchange system, that
is marked by lawlessness, regardless of the National security
concerns--that there is an importance in having integrity and
credibility in what we do.
Very quickly, in response to your specific questions--we
have our SEVIS program. We have dedicated analysts. We have got
a great deal of room for improvement. We have come a long way.
We work very closely with the academic community. We are moving
to a new version of SEVIS. Right now, we basically track the
certificate of eligibility, but not the student him- or
herself. That is where we need to be--is focusing on the
student him- or herself. So that is a big reform that is in the
works.
We are working with the academic community to get that
done. I am hoping--but it is a knock-on-wood hope--that we will
be able to make some real progress on the technological front--
that a lot of this is about the changes that we need to make in
terms of technology, to get us to a student-specific monitoring
and enforcement.
We are having weekly dumps of data now. We generate a lot
of SEVIS leads. One of the beauties of the SEVIS program is it
is completely within ICE. We do generate a lot of leads. I
don't want to suggest to you that we don't have room for
improvement. We do. We need to do it both in terms of
monitoring the individual applications from a civil immigration
perspective--``You are not going to school; you need to go
home''--but also from the visa-fraud mills that you mentioned
that are a real problem.
We have something on the order of 10,000 schools that work
with us through SEVIS. So the number of schools is quite large.
Then there is another, about 4,000 student and exchange-visitor
programs that are sponsored by the State Department.
We do screen some applications overseas, through the visa-
security unit. Again, I don't want to suggest that it is 100
percent. We are not in every embassy. Again, we have to
prioritize those applications that we look at. We don't look at
every single visa application.
Mr. Bilirakis. Okay. Thank you.
Secretary Morton, again, I understand that through the
Secure Communities Program, ICE has been working to deploy
information-sharing technology to State and local government's
law-enforcement agencies to improve their ability to identify
criminal aliens using the 287(g) immigration law-enforcement
authority. Will the deployment of this technology allow 287(g)
jurisdictions to access information, including Federal
databases, that may indicate that an apprehended alien is in
visa-overstay status?
Mr. Morton. The Secure Communities is a automated
fingerprint process. You are dealing with people that are
apprehended for criminal purposes.
But the focus is on the fact that you are a criminal
offender, and trying to identify your criminal history record.
But, as part of that, we are also trying to determine your
immigration status. So, in short, the answer is: Yes, we will
be able to identify your immigration status. Recognize that it
is in the context of criminal offenders, in jails and State
prisons throughout the country.
The immediate focus is on the fact that you have committed
a crime. But we will be able to determine what your immigration
status is, including whether or not you are an overstay.
Mr. Bilirakis. Okay.
Can you briefly explain the new memorandum of understanding
that ICE has signed with law-enforcement jurisdictions
participating in 287(g), and the testimony you provided last
week in the Appropriations Committee, the Subcommittee on
Homeland Security--that local law-enforcement officers ``must
receive ICE approval, and articulate a connection to our
priorities, before they arrest an alien for a civil immigration
offense alone?''
Is the apprehension of those who have overstayed their
visas, regardless of whether they have committed a criminal
offense, an enforcement priority under the 287(g) program?
Chairman Thompson. We will allow you to answer the
question.
Mr. Bilirakis. Okay.
Mr. Morton. The priorities under 287(g) are the
identification of criminal offenders in jails, and for the
task-force model, it is the identification of serious threats
to public safety and, in particular, gang members, and criminal
offenders on the streets.
Ms. Richardson. Mr. Chairman.
Chairman Thompson. The gentlelady from California.
Ms. Richardson. If there is no objection, is it possible
that we could ask Members to keep their questions to about 2
minutes, since votes have been called, so we could all get
this--oh, it is a recess?
Chairman Thompson. It is a recess.
Ms. Richardson. Okay, no problem. Thank you.
Chairman Thompson. The gentleman from Pennsylvania, for 5
minutes.
Mr. Carney.
Mr. Carney. Well, thank you, Mr. Chairman.
Mr. Beers and Mr. Morton, I don't know if you can answer
this--I think you probably can.
From which nations do we see the most visa overstays? Do we
have a sense of that?
Mr. Morton. You know, I don't, right off the top of my
head. I think we could do some analysis, and get back to you
with--with a sense of that----
Mr. Carney. Please.
Mr. Morton [continuing]. If you would like that,
recognizing that it is a fairly--as we have discussed--a small
statistical pool. But, yes, I think we can get that for you.
Mr. Carney. I guess it does sort of beg the question of the
follow-on--is if we can identify that, can we, then--what sorts
of diplomatic efforts can we take to work with those nations,
to make sure that this doesn't happen--you know, that there is
things we--I think we really ought to be doing in terms of
that. I would hope that you share this information with the
State Department and the various councils around the globe, so
they have this information.
Anyway, Mr. Alden, I was struck, actually, by your comments
that the cost-benefit analysis doesn't come out on the
biometric side in terms of exit technologies. What about--the
entrance technologies--is it the same? You know, do the
biometric entrance technology----
Mr. Alden. No. No, I think it is a very different
situation. I think if we looked at the deployment of biometric
technologies through US-VISIT, it has been a tremendous
success. In fact, one of the successes, from my perspective,
was that it was rolled out very intelligently, in a way that
caused minimal disruption to lawful travelers.
So we started it, for instance, with two fingerprints, just
for travelers from visa countries.
Mr. Carney. Right.
Mr. Alden. Then, as we became comfortable with that, the
Department of Homeland Security moved to two fingerprints from
everybody from visa-waiver countries as well. Now, we are
moving to a full 10-fingerprint system, which is more accurate;
has increased security benefits, because you can check it--the
fingerprints against fingerprints that are picked up in
Afghanistan or Iraq or elsewhere.
So there has been real steady progress on the entry side.
The exit side is a lot harder for a number of reasons we can
talk about. But it is a very different situation.
Mr. Carney. I think you did a good job of laying out those
difficulties.
So, from a cost-benefit analysis, in your judgment, the
entrance technology is the way we should be focusing resources?
Mr. Alden. Well, no question--particularly if your priority
is keeping out potential terrorists and criminals.
I mean, if it is a question of immigration accounting--of
trying to know whether people have stayed here illegally for
work purposes--then that is a different set of metrics----
Mr. Carney. Sure.
Mr. Alden [continuing]. That you would use.
But--but for the purposes of National security, I think
there is absolute no question.
Mr. Carney. Okay. Thanks.
Mr. Beers, in your comments, you said that you are
``adequately budgeted''--you have what you need, roughly?
Mr. Beers. That is correct.
Mr. Carney. Okay.
Mr. Beers. For the current activities that US-VISIT
undertakes.
Mr. Carney. All right. Now, not all the compliance-
enforcement units are fully staffed. Is that right--are
adequately staffed?
Mr. Beers. You will have to ask Mr. Morton that.
Mr. Carney. Mr. Morton? Yes.
Mr. Beers. He is the one who runs the compliance units.
Mr. Morton. Actually, we use our full appropriation from
Congress--that is not to say that, you know, we have--as I said
before, the ability to address every lead that is generated.
But we do spend the full appropriation that we receive, which
is about $67 million.
Mr. Carney. Okay.
You could use more?
Mr. Morton. We do the best we can with the appropriation we
get every year, and----
Mr. Carney. I understand. Listen, I will take that as a,
``Yes.'' Thank you.
Mr. Morton. You know, the point that you highlight is it
really needs to be taken in the context of the general
immigration enforcement. Why I think many of us feel that
immigration reform is necessary has been pointed out here--this
is a very large number of people who are not complying with the
law. They fall within the even larger number of people who, for
a variety of reasons, have not complied with the law over time.
ICE has a limited ability to deal with those individuals. We
have to have rational priorities in a world of limited
resources. Visa overstays are no different.
Mr. Carney. Understood. If, somehow, we could enhance your
resources, we would like that.
Actually, Mr. Broun's comments resonated with me, too,
because we have heard similar reports in my district, in
Northeast Pennsylvania--that some of the ICE folks that--you
know, ``There is nothing we can do. We are not going to--you
know, you can report them. You can do whatever. But we are not
going to do much.''
Mr. Skinner, has E-Verify worked, from your estimation, in
terms of workplace compliance and things like that?
Mr. Skinner. Congressman, we have not completed a study to
see if--to determine whether it is or it is not working. That
is something, again, that is on our radar screen. It is
something that we anticipate doing in the--in the months ahead.
Mr. Carney. Sure.
You know, as we look at comprehensive immigration reform
coming up, that would be awfully handy information to have. So,
you know, as soon as that could be done, I would appreciate it
myself.
Mr. Skinner. You can be sure that that is something that we
will be doing in the near future.
Mr. Carney. Thank you. I will yield back.
Chairman Thompson. Thank you.
The gentleman's time expired.
Mr. Morton, for the committee's information, to what extent
have you utilized contractors rather than full-time employees
in your course of work?
Mr. Morton. The CEU work we do is almost exclusively
performed by Government employees, because it is a straight
law-enforcement function. We do use a limited number of
contractors--42--to help us with some of the scrubbing of the
leads that we receive from the various programs. We do that, in
large part, because that piece of the work if funded by fees.
The fee structure is much more uneven than a straight
appropriation. Using the contractors, we are able to deal with
the year-to-year fluctuations that we have in the fee-based
structure.
But, as a general rule, we want to do this with Government
employees.
Chairman Thompson. Thank you. If you would, please provide
the committee with the name of those contractors, and what have
you.
Mr. Morton. Happy to do so.
Chairman Thompson. I now recognize the gentleman from
Texas, for 5 minutes--Mr. McCaul.
Mr. McCaul. Thank you, Mr. Chairman.
Mr. Beers, I have a chart here, and I believe it comes from
your testimony, primarily. But about 11 percent of the
overstays are actually reviewed? When you look at overstay
leads investigated, it is about 3 percent of the potential
universe of overstays? That leaves about 89 percent outside of
ICE parameters.
First of all, is that accurate? If it is, that--to me, that
is very disturbing, particularly given the fact when you had
somebody like Mr. Smadi, who attempted a terrorist attack in my
home State of Texas, who, as I understand it, would not be one
of the leads investigated because of the criteria used under
the current situation.
Mr. Beers. Sir, the reviews we do are based on the National
security criteria that ICE provides us with. Those numbers
reflect the individuals who fall within the parameters of the
National security criteria which ICE provides us with.
Mr. McCaul. Yes, and I understand that. I know you have
your parameters. But does that mean that about 89 percent of
overstays are outside of the ICE parameters?
Mr. Beers. That is what the figures say.
Mr. McCaul. Again, I find that very troubling.
I don't know what the answer is going to be here. I know
that the 2011 budget request completely eliminates funding for
the comprehensive biometric exit program, a $22 million
decrease.
Mr. Morton, what are the chances of that--what are your
thoughts about that?
Mr. Morton. With regard to the funding for US-VISIT, I
would address that to Mr. Beers. To your earlier points, it
is--the basic challenge is the challenge that we face every
day, and that I have referred to earlier--as an enforcement
agency, we have more leads than we can address. That is just
the day-to-day reality that I face in running the agency.
We are a big agency, but we have to prioritize. In that, I
focus first and foremost on National security; next, we go to
criminal offenders; then, to maintaining basic support along
the border and for fugitives. And----
Mr. McCaul. I understand you have to prioritize within the
resources you have. I don't think you have enough. Have the
parameters changed since the Smadi case?
Mr. Morton. There have been some changes. A short answer to
your question is, ``Yes.'' I would prefer to talk to you about
that----
Mr. McCaul. Sure.
Mr. Morton [continuing]. Not in a public setting.
Mr. McCaul. Mr. Skinner, you and I talked briefly before
the hearing about this resource issue. I think you--I don't
want to paraphrase you, but you basically said, ``To really
address this, we are going to need a lot more resources thrown
at it.'' Would you care to comment on that?
Mr. Skinner. When we performed our review about 4 or 5
years ago, one of the things that we observed was a tremendous
backlog. In fact, about 53 percent of the total referrals to
ICE were backlogged for over a year.
It is my understanding, based on information we received as
we monitor implementation and the improvements that ICE is
making as they go forward--is that its backlog still exists
today. Our concern, and my concern would be, as we do our
follow-up work, is, ``How are we going to dig into that
backlog?''
If you continue to make a backlog of tens of thousands of
referrals of potential--of violators or potential violators--
who, among that group, is someone that we need to target right
away? We don't have time on our side, so that is something that
we will be focusing on as we move forward.
Mr. McCaul. Well, thank you.
I think this is a--for this administration to propose a cut
in resources to address this, I think it is not the right
action.
Mr. Alden.
Mr. Alden. Mr. McCaul, thank you. Would you still allow me
to respond quickly on the Smadi case? Obviously, the Government
officials know many things that I am not privy to.
But my understanding of that case is when the sheriff in
Texas contacted officials in Washington, when he pulled over
Mr. Smadi for the broken taillight, he was told that he was
under FBI investigation--that Smadi was under FBI
investigation. He was held in prison for a night and released
the next morning. In fact, the operation that finally resulted
in his arrest was set up by the FBI.
If he had been identified and targeted as a visa
overstayer, and deported, it would have interfered with a
critical law enforcement investigation. So I hate to see this
case used as an argument for overstay-tracking as a
counterterrorism--so I think it is a misunderstanding of what
occurred in that case. I think that was a law-enforcement
success, not a visa-tracking failure.
Mr. McCaul. I agree with that. I think the FBI did an
outstanding job. You are right. They were working this case to
get to where they finally did. It was a successful law
enforcement story. But if there are other Smadis out there that
the FBI is not working an investigation like this--yes, I just
think the criteria--the parameters should be addressed so that
it would include individuals of his age, you know, in a
different case.
Mr. Alden. I mean, again, just to make the record clear, he
was from a country that is tracked under the NSEERS program.
There is an effective entry-exit system for people from those
countries. So we would have known he was a visa overstay.
Mr. McCaul. That is good news.
I yield.
Chairman Thompson. Thank you very much.
Mr. Beers, did you want to make a comment on something?
Mr. Beers. I did, on the issue, Congressman--with respect
to the funding issue.
Mr. McCaul, there is no money in the budget for biometric
air exit in fiscal year 2011. That is correct. The reason is
that I couldn't tell you how much that program ought to cost.
We believed that it was more important not to put a number in
there that we couldn't justify, since we hadn't made a decision
yet.
When we make a decision and we are prepared to go forward,
then we will be prepared to ask you for the money that we need.
The time process, as you are well aware of, for developing
budgets is such that we got caught in a jam between finishing
this study and preparing the budget.
Chairman Thompson. Thank you very much.
The gentlelady from California is recognized for 5 minutes.
Ms. Sanchez. Thank you, Mr. Chairman.
Thank you, gentlemen, for being before our committee today.
I just have a couple of quick questions.
The first one, since I have you all in front, especially
our ICE director, here--there is a lot of comments going out in
California, including my own district, that somehow ICE agents
are going out and making raids all over the place. Can you
state, for the record, here, at this hearing, what, if any
raids have been taking place in rounding people up off the
streets?
Mr. Morton. I would tell you that one of the things that I
have to deal with every day, as the leader of Immigration and
Customs Enforcement is rumors about widespread raids that are
going on in one place or the other. We dealt with one just a
few weeks ago, where rampant rumors that we were teamed up with
Walmart, and that we were going into individual Walmarts around
the country and arresting people.
It is just simply not the case. We do conduct worksite
enforcement operations. They are targeted on specific employers
after an investigation that we conduct. Where those
investigations reveal that there are people who are working in
the country unlawfully--and as we go through our criminal
investigation, we will address the civil immigration
violations.
But the idea that ICE is conducting, you know, raid upon
raid and State upon State across the Nation, willy-nilly, is
just simply not true.
Ms. Sanchez. So I am looking at some information I have in
front of me, where it talks about the past administration--the
Bush administration versus the Obama administration, and some
of the myths out there. It does, in fact, say here that you are
doing worksite enforcement, that you are much more targeted,
and that you are doing it more analytically.
Quite frankly, getting a lot of the problem people and
identifying them, and either putting them into a prosecution
cycle, as they are criminals, or following the law of our land,
and making sure that they are sent to their home countries. Is
that not true?
Mr. Morton. That is right.
Ms. Sanchez. So you are not going out and doing raids on
the street randomly, but you are very analytically and
surgically analyzing businesses that are abusing the law.
Mr. Morton. That is right. We don't do street sweeps at
all.
Ms. Sanchez. Thank you for that.
I would like to--Mr. Alden, when Mr. Carney was asking you
about US-VISIT--and, particular, knowing who is coming into our
country, and who is leaving our country, because, as the
Chairwoman of that subcommittee, up until a couple weeks ago,
US-VISIT, of course, was a headache.
But I think you said something very interesting. I would
also like to make sure that I understood what you said--``If we
are looking for terrorists, then the most important thing is to
find them when they are coming--attempting to come into our
country.'' Is that what you said?
Mr. Alden. Absolutely.
Ms. Sanchez. While it would be nice to know who is leaving
our country--that that would be more important from a visa-
overstay perspective with respect to who may be working under
the table, or without the right documents in our country.
Mr. Alden. It is important for the integrity of immigration
laws--its primary value.
Ms. Sanchez. But finding a terrorist on the way out is
probably not the place we want to be looking for them. It is
probably finding the terrorist coming in--is where we should be
putting our resources?
Mr. Alden. In fact, as I understand the technologies that
are currently being tested, we wouldn't find the terrorist on
the way out, even with a fingerprinting system, because the
data is not available in real time. You take the fingerprints.
They are uploaded at the end of the day. We would be able to
say, ``Well, yes, there was someone on the Terrorist Watch List
in the country. We know he has left. He went on a flight back
to Amsterdam.'' Possibly, we would be able to alert law-
enforcement officials in those countries. But we wouldn't find
him as he was exiting, even if that scenario should occur.
Ms. Sanchez. Thank you, Mr. Alden.
Thank you, Mr. Chairman. I just wanted to make sure I
understood what he had said.
Chairman Thompson. Thank you very much.
The Chair now recognizes the gentlelady from California,
Ms. Richardson, for 5 minutes.
Ms. Richardson. Thank you, Mr. Chairman.
Mr. Beers, can you explain to me--how is it that the US-
VISIT program has $50 million from prior-year funds that you
haven't used?
Can you explain to me--how is it that the US-VISIT program
has $50 million in prior-years' funds that have not been
utilized?
Mr. Beers. If you are referring to the $50 million for
biometric air exit, the money is appropriated as no-year money.
It is available for the implementation of the biometric-air-
exit decision process that is currently underway.
Ms. Richardson. So, typically, if you don't spend money,
like last year of whatever it just kind of sits in a pot until
you decide----
Mr. Beers. We generally spend our money. But this
particular box of money is specifically devoted to biometric
air exit. Since we haven't made a decision on that--there have
been some prior years when we haven't expended all of our
funds. I can say that we are doing a much better job on that.
The money is put to good use. It is not that it just sits
around. It just wasn't expended in prior years.
Ms. Richardson. I realize, Mr. Chairman, it is not the
subject of this particular committee hearing. But, when I read
that, I thought, from an oversight perspective, it was kind of
interesting, because if money is not being spent really
technically--what should be done, and what happens to us--you
would have to return the money. Then, once you did your study
and you decided what program you wanted to implement, then you
would come and you would ask for the money.
So, to me, it just seems a little--not quite accurate
information that is being shared, because, actually, if you--
the question the gentleman asked--if you already got $50
million in your pocket, you didn't have to initially ask for
something this year. So I would like to explore that more in
the future.
Mr. Beers, I have got to tell you I was a little surprised
when Mr. Morton said that he couldn't answer a basic
quantitative question. Mr. Carney asked, ``Do you have the
statistical information of, you know, the results by country?''
He said, ``No,'' you know, ``I don't have it.''
I got to tell you--I come from the private sector. I cannot
imagine a staff meeting that you would have that he would come
to, and you wouldn't ask, of the 1,100 names, ``Tell me what
countries these come from. Is there a particular time period
that they come?'' I mean, I am not going to tell you how to do
your business, but I have found that to be particularly
shocking--that that information was not----
Mr. Beers. We have that information. We could not answer
Mr. Carney's question as to which country had the largest
number of overstays----
Ms. Richardson. Well, if you have it, why wouldn't----
Mr. Beers. We have the information about that. Neither John
nor I had that at the tip of our fingertips. We would be happy
to provide that rapidly, as a question from the committee. But
the information is available. It is communicated on a regular
basis to the State Department. They, themselves, want to know
what their overstay rate is, because that helps them in looking
at the visas that they have to issue.
So all of that information is available, we just didn't
have it at our fingertips.
Ms. Richardson. That wasn't my clear understanding of his
response. I think it would be helpful for the committee to know
that.
Mr. Morton, you answered that you have more leads than what
you can address. Yet, when you were asked the question, ``Do
you need additional funding,'' you did the good old party
response--programmed response, ``Well, you know, we are doing
the best that we can.'' Actually, Mr. Beers laughed. I thought
that that was particularly interesting, because given that we
are an oversight body, we are talking about American lives that
are in danger here.
If you have more leads than what you can address, it sounds
like to me you need more people. The place to say it is here.
If you are not given the freedom by Mr. Beers to say that, then
we have a bigger problem, because that is what we are here for.
So if you need more resources, we need for you to tell us.
My last question, Mr. Morton--we talked about--I think it
is the I-94 form. I have looked at the same form for my
international travel now, for the last 20 years. I am curious--
when have we last updated it? It would seem to me that it would
make sense, instead of saying where you are saying--because,
you know, I go through customs. I don't think anyone is
checking, ``Do you stay at the Marriot?'' or wherever you are
staying. I think it would be more helpful to know, ``Is there a
point of contact where you are staying?'' and that that
information should be provided prior to the person landing.
So, maybe, at the point of purchase of the ticket--so that
that way, someone--I mean, we went to the National targeting
center. Someone could be typing in these names, see the same
names popping up, and see that there is a problem. So I would
just hope--and I believe my--probably down to 30 seconds. But I
would like to see you come back to the committee with some
ideas of how we might change that form. Because, as far as I
have seen it, it is the same form I have seen for 20 years.
Last, whoever was working on the US-VISIT program--the
pilot--that looked at the two seaports--if you could provide
this committee that information?
Could one of them take a stab?
Chairman Thompson. We will allow the witnesses to answer
the question.
Ms. Richardson. Thank you, Mr. Chairman.
Mr. Morton. I am happy to give you our thoughts on the I-
94.
I think the most recent time the form was updated was in
2004. But you have hit on exactly a key point for us in terms
of enforcement, and the promise of things like US-VISIT and
technological improvements--in order for ICE to be effective on
the back end, for those people who knowingly violate the law,
after having received a privilege to come here, the more
information that we can get up-front that is detailed and
accurate, that is beyond just, ``I am staying at the Marriot
for 3 days in Orlando''--just imagine, from our perspective,
how difficult it is to start with that as your basis.
Things like ESTA, which is the program of requiring people
coming here for the visa-waiver pilot program, where you don't
need a visa at all--a computer-based, Internet-based program
that requires you to put in a lot more information--give the
United States a lot more information before you even come here,
I think, is the promise of the future.
I think we would be more than happy to give you our
thoughts on that.
Mr. Beers. We will get you that information on the full
study that we did on the pilot program.
Chairman Thompson. Thank you very much.
The Chair now recognizes the gentlelady from Brooklyn, New
York, Ms. Clarke, for 5 minutes.
Ms. Clarke. Thank you very much, Mr. Chairman.
I want to thank our panelists for being so forthcoming with
the information being requested around this issue.
I can appreciate the challenges that we face in trying to
address this issue of exiting--some of the technologies being
somewhat cost-prohibitive. I also appreciate, you know, the
diligence with which this committee has raised questions about
those who may have come to our country, overstayed their visas
intentionally to do us harm.
It is estimated that the number of non-immigrant overstays
widely varies. That is part of the challenge. But I do have to
take some exception with ``These people are criminals''
classification. I mean, I want to challenge that notion,
because employers actually play a role here as well. When you
have such a varied visa system, where oftentimes employers have
a role to play about whether a person falls out of status or
not, it makes your job even harder.
We have been approaching this sort of as a monolithic
issue. Different people come to the United States under
different types of visas, and they come at varying ages. So if
you are a child that comes on a visitor's visa, and your
parents, for whatever reason, are unable to receive you back
home, you may stay with a relative that is able to take care of
you, thereby overstaying a visa. How do we adjudicate something
like that?
Perhaps you are a worker that was brought on a special type
of visa because of your expertise, and your employer becomes
recalcitrant, but still needs your work there. They don't fill
out the paperwork in time. Is that the terrorist that we are
looking for, and the needle in the haystack?
I have to say that I think the way that we really get to
the core of this is by addressing a comprehensive immigration
reform, where we look at the types of visas that we have and,
then, maybe do a special application of remedy per class. Then,
we being to take a look at who it is that is truly doing us
harm, and we are able to focus on that.
So let me just ask a couple of questions here. The office
in DHS--excuse me--which office in DHS has lead responsibility
for estimating non-visa immigrant overstays, and then analyzing
the trends?
Mr. Beers, could you give me a sense of that?
Mr. Beers. We put together the initial information that
would be available to look at those issues using the US-VISIT
database system.
So we can see how that is happening. Much of our work is
done in conjunction with ICE, with respect to----
Ms. Clarke. So there is not one particular unit in--that
specifically focuses on this? It is a joint----
Mr. Beers. Within US-VISIT, that is correct--the Data
Integrity Group.
Ms. Clarke. Okay. So, the Data Integrity Group.
Are there other DHS offices involved in collecting and
analyzing data on visa overstays?
Mr. Beers. We have the information. Other people use our
information for their own analyses.
Ms. Clarke. Okay.
Is this analysis done categorically based on--upon the type
of visa that was issued?
Mr. Beers. We have that data as well. Yes, it can be done
on that as well.
Ms. Clarke. Then, we can break it down to, perhaps, the age
of the individual, what circumstances they came to the United
States under?
Mr. Beers. Yes.
Ms. Clarke. Does DHS share non-immigrant visa-overstay data
with the Department of State Bureau of Consular Affairs, the
agency responsible for issuing the visas?
Mr. Beers. Yes.
Ms. Clarke. Okay. Does DHS data on non-immigrant visa
overstays--is that all currently available?
Mr. Beers. Currently available to the public, or currently
available to the Department of State?
Ms. Clarke. To the Department of State?
Mr. Beers. Yes.
Ms. Clarke. Okay.
Has the Department analyzed this data to explore whether
foreign nationals on certain types of visas, from certain parts
of the world, or other demographic traits, are more or less
likely to stay after their visa expires?
Mr. Beers. I will have to get back to you specifically on
whether that particular analysis has been done. I don't know
the answer to that.
Ms. Clarke. Yes. I just think that that may help us to sort
of boil down--drill down, if you will--to where the actual
threat levels exist within the system that we have. Perhaps,
that is where we can begin to reform it.
I want to thank you all, once again, for being here--
sharing what you have with us. But I just think that we have to
stop looking at this from a monolith. Oftentimes, that is the
way things are portrayed.
People come under different circumstances, different ages.
We need to address it in those nuanced ways.
I yield back, Mr. Chairman.
Mr. Beers. Congresswoman Clarke, just let me answer the
last question that you asked.
Ms. Clarke. Yes.
Mr. Beers. The National security criteria that ICE gives us
in terms of identifying those overstays that are of most
concern is a result of that. It is not just from the analysis
of overstays. It is also from intelligence information that ICE
has as part of the intelligence community.
Mr. Morton. Yes, if I might, Mr. Chairman----
Chairman Thompson. Please----
Mr. Morton. Just so you are not under any misimpression--
that is exactly what we do every day, when we go out and
enforce. We exercise prosecutorial discretion. So I can assure
you that we are not spending our limited resources on
identifying juveniles who may have stayed here longer with a
relative. The cuts we are making are at a much higher level;
generally, as I said earlier, focused around questions of
National security or public safety.
You know, your basic point is well taken. That is not how
we operate.
Ms. Clarke. Mr. Chairman, if I might----
Chairman Thompson. Please.
Ms. Clarke. I understand that. I wanted to put it in
context for the record, and for our colleagues because we speak
about this in such a monolithic fashion. It is though everyone
who comes on a visa is a potential threat to us. But when we
begin to boil it down--as you said, you begin to eliminate
juveniles and other categories of people, based on the type of
visas they have--then we can really focus our resources--our
limited resources--on those who may be here to do us harm.
I yield back.
Thank you, Mr. Chairman.
Chairman Thompson. Good point.
I don't think there is any disagreement between any of the
witnesses at this hearing. The facts about it, I think, people
have suggested that, just based on what the facts are--we have
to prioritize who we go after first. Obviously, it is the
terrorists and other people that would be top of the list.
Gentlelady from Las Vegas, Nevada, Ms. Titus, for 5
minutes.
Ms. Titus [continuing]. I would just ask you, then, if you
would explain the discrepancy in the calls or--and how you
involve the stakeholders in that rulemaking process.
Mr. Beers. That notice of a potential rule did create those
numbers and that reaction on the part of the airline industry.
In part, as a result of those concerns expressed by the airline
industry, the pilot study that we conducted and completed in
July focused on that collection being done by U.S. Government
officials, rather than the airline industry, which was also not
interested in having responsibility for conducting the
biometric air exit.
We have looked at a number of choices. I would say that,
without being in a position to tell you precisely what those
numbers are at this particular point in time, we are talking
about a 10-year program that is over $1 billion by any of the
options that we have looked at. Those numbers are estimates.
They have been under review since that study was completed. We
are continuing to scrub them. We will be in a position to talk
about them once a decision has been made by the administration.
The assumption that the American airline industry and the
American traveler will necessarily have to pay those fees is
also not a determined issue. That was the airline industry
making the assumption that they would have to pay, or eat the
cost. We haven't made a decision on that at this particular
point in time. That is an issue, though.
Ms. Titus. Can you keep me updated on that as you move
forward in this process?
Mr. Beers. Yes, ma'am.
Ms. Titus. Thank you.
Also, I think that part of the comprehensive solution is
not just checking people when they come in and when they come
out, but having the facilities be able to deal with the flow of
people who have been cleared. So I wondered if, in your pilot
program, you looked at the impact of the two systems that you
were testing on the flow at the airports? Did you detect any
significant delays with one of the other, or----
Mr. Beers. To the best of my knowledge, the efforts--and,
again, they were pilot programs--did not. That is still
something that would be of extreme interest to us. Obviously,
we want security and travel facilitation to be an integrated
process, and not have one affect the other. So it is an issue.
Ms. Titus. It is. I appreciate you recognizing that and
keeping me posted on that as well. I would just ask you
finally, then, do we have your assurance that, as you move
forward with this, you will keep the stakeholders involved and
seek the input of the different airports?
Mr. Beers. We will have to do that. Yes, ma'am.
Ms. Titus. Thank you very much.
Chairman Thompson. Thank you very much.
The Chair now recognizes the gentlelady from Texas, for 5
minutes.
Ms. Jackson Lee. Thank you very much, Mr. Chairman.
Let me compliment the Chairman and the committee for
focusing on truth, rather than myth. The contrasts between
administrations are unhelpful. Contrasts attempted to be made
between the Bush and Obama administration is extremely
unhelpful. What we should be focusing on is: How we can go
forward?
I am interested, Mr. Alden, in your perspective. I think it
is important because you bring a perspective that comes not
only from your own intellect and research, but you have a
political perspective as well. I think these are the kinds of
input that we need to have to be constructive going forward.
So did I read correctly, in your testimony, that a complete
shutdown of the border does impact commerce, and the ingress
and egress of necessary principals that may come in. When I say
that--diplomatic and otherwise--that may come in--is that your
testimony?
Mr. Alden. Well, I want to be clear, Congresswoman. I don't
think anything we are talking about here involves a complete
shutdown of the border. The closest we have seen to that was in
the immediate aftermath of 9/11.
Ms. Jackson Lee. No, but answer my question, which is: If
that was to occur, would that impede commerce? That is what am
putting a hypothetical----
Mr. Alden. Well, just to give you a figure on it, we--at
the Canadian border after 9/11----
Ms. Jackson Lee. Right.
Mr. Alden [continuing]. The decision was made to do
detailed inspections of every incoming traveler--commercial and
ordinary citizen. The lineups into Windsor, Ontario ran to 12,
15 hours and longer within 2 days.
Ms. Jackson Lee. You can be----
Mr. Alden. So doing that kind of detailed inspection alone
was enough to effectively shut down that border.
Ms. Jackson Lee. You can be assured that we heard from the
Northern border on that.
Mr. Alden. Yes.
Ms. Jackson Lee. Thank you. I just wanted to clarify your
point.
Mr. Morton, I have heard your passion on this whole concept
of immigration, and the need for comprehensive immigration. I
would like to insert into the record, by my words, the calm and
very appropriate expression of that by multiple groups on last
Sunday. It was an amazing array of groups of faith. I hope you
had a chance to at least see this combination of individuals
who came in peace, who were articulate, to the higher ranks of
various churches, such as cardinals and bishops, and other
leading faith participants, along with the community--business
persons, a various array of folk who were talking about
comprehensive immigration reform.
My question to you: What is the time frame? You are part of
the structure of what the administration will have to look to
in comprehensive immigration reform. Are you working on this
inside the Department of Homeland Security? As I understand it,
this is something that is on the administration's agenda. Is
there pre-work being done that will be helpful to Members of
Congress as we move forward?
Mr. Morton. Absolutely. Not only are working on it and have
been working on it for quite some time. The President asked the
Secretary to lead the effort. We have met with over 1,000
interested groups, whether they are advocates, churches,
individuals at meetings throughout the country. I participated
in quite a number of them personally, and--and led them.
We have been working very closely with Senators Schumer and
Graham on their thoughts on how to reform the system. We
support the basic principles that they have outlined. We are at
the ready, and have been doing a great deal of homework. It is
a strong commitment of this particular Secretary. I have made
no secret that I think it is necessary, and the President has
obviously said repeatedly, including most recently at the march
itself--that this is a commitment, and that is at the top of
his radar screen.
Ms. Jackson Lee. So if I can pursue my line of questioning,
it is a given that the administration believes that a
regulatory scheme structure--a scheme does not attract you--
will help you clarify, for example, your duties?
Secretary Morton.
Mr. Morton. Absolutely.
Ms. Jackson Lee. As I say that, let me make--let me put
this number in the record--that ICE is reporting a 40 percent
increase in removal of aliens convicted of crimes in 2010,
compared to the same period last year, which covered the
previous administration. I think that record should be clear,
because if there is any deportation that I would advocate, it
is distinctively a convicted criminal under these present laws
versus a mother who is trying to stay here to raise her
children.
Would you go ahead and continue your answer, and have any
comment on this idea of the criminal aliens versus those who
have simply come here for work, even though they may be un-
status.
Mr. Morton. Obviously, National security cases and
criminals are our highest priority. As I think everyone will
shortly see, there is going to be a profound change in the
results from an enforcement perspective at ICE. As you have
just noted, we are on track to see something on the order of a
40 percent increase in the number of criminal aliens removed
from the United States in a single year.
So I have brought a very strong focus to that. I think
everyone on either side of the aisle, when they look at the
challenges that we face in terms of immigration--most people
agree. They disagree on a lot of things. But they agree that,
yes, we ought to be starting with criminal offenders. That is
exactly what we are doing.
Ms. Jackson Lee. In closing, Mr. Chairman, I just want to
say, for the record, I think it is very clear that the Obama
administration has an agenda, a positive agenda, which is to
fix what has been broken, now, for, I would say, the 1986 bill,
and, then, the amendments thereafter, in terms of immigration,
and needs a fix so that these officials can decipher between
known criminals and others who would do harm to this country as
it relates to our National security, and to work on a structure
that decent individuals who come to this country, as they did
in the early 1900s--as many parents and grandparents of those
of us who have immigrant histories would be able to do--that we
need to move quickly on comprehensive immigration reform; and
citing numbers about how many employer sanctions, which is part
of the structure, does not move me.
The overstays will continue as long as we don't have a visa
structure for work. They will continue as long as we want to
divide families--mothers and fathers being sent back, and
children who are born here. They will continue as long as we
don't address the question swiftly, quickly and expeditiously,
and so it can be understood.
With that, Mr. Chairman, I yield back.
Chairman Thompson. Thank you very much.
I would like to thank the witnesses for their very valuable
testimony, and the Members for their questions.
Before concluding, I would remind our witnesses that the
Members of the committee may have additional questions for you.
We will ask you to respond expeditiously, in writing, to those
questions. In addition to that, there are--already been some
commitments to get information back to us. I would encourage
you to get it back to us as soon as possible.
Hearing no further business, the committee stands
adjourned.
[Whereupon, at 12:11 p.m., the committee was adjourned.]
A P P E N D I X
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Questions Submitted by Chairman Bennie G. Thompson of Mississippi for
Rand Beers, Under Secretary, National Protection and Programs
Directorate, Department of Homeland Security
Question 1. What DHS data on nonimmigrant visa overstays is
currently available? Has the Department analyzed these data to explore
whether foreign nationals on certain types of visas, from certain parts
of the world, or with other demographic traits are more or less likely
to stay after their visas expire?
Answer. The overstay rate data currently under review include
variables for country, class of admission, port of admission, and
airline. The focus of the review has been on the accuracy of the
overstay rate estimates. Our systems, and particularly our collection
and verification of biographic departure records for air travelers,
have now improved to the point where we are increasingly confident in
the reliability of the data. We expect to be in a position soon to
release overstay rates for each Visa Waiver Program country.
Question 2. Provide a listing, by country of origin, of the
estimated number of foreign nationals currently in the United States
who have overstayed their visas.
Answer. Over the past several years, DHS has made significant
strides in its ability to identify foreign nationals who have
overstayed their authorized periods of admission. However, the number
of nonimmigrants who overstay their visas or periods of admission in
any given year and remain in the United States has historically been
difficult to estimate, primarily due to the lack of collection of
departure information at land ports of entry. DHS currently has
programs in place that use airline manifest information; border
crossing records; document reads enabled by the Western Hemisphere
Travel Initiative (WHTI); and information collected under the US-VISIT
program that allow us to record, for most individuals, who has entered
and exited the country. US-VISIT uses a multilayered system that
includes automated data searches, manual data searches, and manual
verification by human analysts to identify aliens who remain in the
United States beyond their authorized periods of admission. These
aliens are commonly called visa overstays.
DHS has refrained from disclosing and using estimated overstay
rates to help determine policy, such as Visa Waiver Program
eligibility, because precise numbers and rates could not be accurately
calculated. However, the current system, and particularly DHS
collection and verification of biographic departure records for air
travelers, have now improved and created confidence in the reliability
of the data. DHS is conducting further manual reviews for other
countries to reach a point where it is confident that the evaluation is
valid. DHS expects to be in a position soon to release overstay rates
for each Visa Waiver Program country and to begin using these data to
inform VWP decisions, as required by the VWP statute.
Question 3. How can the Department improve the I-94 form to obtain
better information from travelers to help DHS locate travelers who
overstay, and enforce visa deadlines?
Answer. DHS has made significant strides in its ability to identify
foreign nationals who have overstayed their authorized periods of
admission.
The Department recognizes that using the paper version of Arrival/
Departure Report (I-94) Form I-94 to collect entry and exit data, which
support the identification and location of possible overstays, is not
optimal. DHS is planning to phase out the paper version of the form and
rely on other means for data collection. In particular, DHS has worked
closely with airlines to ensure that complete airline manifest
information is provided--ensuring DHS receives detailed information on
departures and arrivals. DHS also uses border crossing records;
document reads at the land border enabled by the Western Hemisphere
Travel Initiative (WHTI); and other information collected under the US-
VISIT program to record arrivals, departures, and changes to status
that allow individuals to extend their authorized periods of stay. DHS
then analyzes this information to determine whether individuals have
overstayed the terms of their admission. Upon determination, DHS takes
action. For individuals who overstayed and have left the United States,
DHS creates ``lookouts'' in both our biographic and biometric systems
so that any State or DHS officer who later encounters the individual is
aware of the prior failure to comply. For those who are believed to
have overstayed, but not departed, ICE opens field investigations
(based on prioritize and resources) to locate and remove the
individual.
Question 4. It is my understanding that Secretary Napolitano has
been briefed on the outcome of the US-VISIT exit pilots and is
considering how to proceed. What recommendations did you make to the
Secretary and when can we expect a final decision from the Secretary on
implementation of the program? Will you commit to briefing to the
committee in advance of an announcement on the Department's plans?
Answer. The Department of Homeland Security (DHS) conducted the Air
Exit pilots from May 2009 to July 2009, pursuant to the 2009 DHS
Appropriations Act. The Air Exit pilots tested scenarios for biometric
exit capabilities at two airports. The Air Exit pilots were: (1) U.S.
Customs and Border Protection (CBP) officers at the departure gate of
Detroit Wayne Country Metropolitan Airport and (2) Transportation
Security Administration (TSA) screeners at the main security checkpoint
of Hartsfield-Jackson Atlanta International Airport. In cooperation
with CBP and TSA, U.S. Visitor and Immigrant Status Indicator
Technology Program (US-VISIT) prepared an Air Exit pilot evaluation
report that DHS submitted to the House and Senate Subcommittees on
Homeland Security on October 26, 2009.
Any decision regarding the implementation of biometric exit
procedures must consider economic, technological, and operational
impacts, as well as possible modifications to port facilities and the
surrounding environment. DHS continues to examine options for biometric
exit procedures and, once a decision is made, DHS will brief this
committee.
Question 5a. It is my understanding that US-VISIT will hire
additional data integrity analysts to reduce the backlog of previously
unreviewed overstay records.
What is the current backlog level? What has contributed to this
backlog?
Question 5b. When and how will the Department eliminate this
backlog?
Question 5c. How will US-VISIT mitigate potential vulnerabilities
resulting from not reviewing these records?
Answer. The U.S. Visitor and Immigrant Status Indicator Technology
Program (US-VISIT) is directed by Congress in the 2009 US-VISIT
reprogramming request with eliminating 50 percent of the current
backlog by the end of fiscal year 2010. There are currently 753,000
unreviewed records, not including possible future overstay records
identified in fiscal year 2010.
In the past, US-VISIT did not validate the records of individuals
who did not meet U.S. Immigration and Customs Enforcement (ICE)
parameters for overstay records of interest based on National security
and intelligence criteria (nonpriority records). This significantly
increased the size of the backlog.
To reduce the backlog, US-VISIT hired additional analysts for
manual vetting and will perform additional automated validation to
review all overstay records, including those of people from nonpriority
countries of interest. As of April 9, 2010:
US-VISIT has vetted approximately 247,000 of the previously
unreviewed records (48 percent of the stated goal of 500,000
records for fiscal year 2010), including regular automated,
manual, and batch closures of records.
US-VISIT has hired an additional 69 contractor analysts,
currently in various stages of the clearance process, to review
overstay records.
US-VISIT will continue with automated, manual, and batch
closures of records throughout fiscal year 2010.
US-VISIT remains current (no backlog) in reviewing priority
potential overstay violators, including those with visas and
Visa Waiver Program nationals.
Question 6a. The Inspector General testified that DHS does not have
a master schedule for tracking the work that needs to be accomplished
to deliver an exit solution.
Has the Department made progress toward creation of a master
schedule?
Question 6b. Who is responsible for this effort and when will a
master schedule be finished?
Question 6c. Will you commit to providing this schedule to the
committee once it is finalized?
Answer. Once decisions for National deployment are made, U.S.
Visitor and Immigrant Status Indicator Technology Program (US-VISIT)
will develop and maintain an integrated master schedule aligned with
the U.S. Government Accountability Office's delineated best practices
that will capture the sequencing and timing of the activities and
events necessary to meet the requirement of this project in a timely
and cost-effective manner.
The Department will provide approved final schedules to the
appropriate Congressional committees.
Question Submitted by Honorable Gus M. Bilirakis of Florida for Rand
Beers, Under Secretary, National Protection and Programs Directorate,
Department of Homeland Security
Question 1a. In your testimony on terrorist travel before the
Senate Committee on Homeland Security and Governmental Affairs last
December you highlighted the success of the Coast Guard's Biometrics at
Sea program used off the coasts of Florida and Puerto Rico, of which I
have been a strong proponent.
Are there plans to expand the use of this very effective program
beyond the Coast Guard's current use to additional areas or for use by
other DHS components?
Question 1b. Can this technology be leveraged to enhance our
biometric exit screening capabilities?
Answer. The Coast Guard has recently expanded its biometric
capability to include the biometric verification of crew members on
vessels carrying Liquefied Natural Gas into the ports of Boston, MA,
and Sabine, TX.
The Coast Guard is also studying the use of biometrics to support
Counterterrorism, Counterdrug, and Maritime Border Security missions.
The Coast Guard Biometric at Sea System (BASS) cannot be used for
biometric exit screening because it is currently limited to the
collection of two fingerprints and a non-searchable photo. The Coast
Guard is working with CBP, US-VISIT, and other DHS components on a
single DHS capability solution to provide 10-print collection and
potential multi-modal capabilities.
Question Submitted by Honorable Paul C. Broun of Georgia for Rand
Beers, Under Secretary, National Protection and Programs Directorate,
Department of Homeland Security
Question. Would you each share your opinion of the impact that
discussions in this country about providing amnesty for those here
illegally, many of whom are visa overstays, and enabling unauthorized
aliens to work legally in the United States, has had and will have on
visa overstays?
Answer. The experience of immigration enforcement officials in the
field has shown that many nonimmigrant aliens who overstay their
authorized period of admission to the United States do so because they
hope to eventually adjust their status to that of a lawful admitted
permanent resident. For example, current law allows nonimmigrant
aliens, even those who overstay their visas, to adjust their status
through marriage to a United States citizen. Similarly, the prospect of
being able to adjust status through legalization cannot be discounted
as an influencing factor for an alien considering overstaying a visa,
or of entering the United States with the intention of remaining
unlawful.
Legalization would not provide a pathway to employment
authorization or legal status for future visa overstays who go ``out of
status'' after a hypothetical legislation was introduced and enacted.
Therefore, in the future, those who overstay may fraudulently attempt
to adopt the identity of an alien who was ``out of status'' and
therefore eligible for legalization. Fortunately, such identity fraud
will be made more difficult by DHS systems that capture the biometrics
of nonimmigrant visitors. Furthermore, visa overstays lack the required
documents to work legally in the United States. Legalization of those
who are currently in the United States illegally would not affect
future visa overstays, who would still lack valid work authorization.
Questions Submitted by Chairman Bennie G. Thompson of Mississippi for
John T. Morton, Assistant Secretary, U.S. Immigration and Customs
Enforcement, Department of Homeland Security
Question 1. Provide the names of all contractors providing services
to the ICE Compliance Enforcement Unit. Specify the total value of the
contract, the term of the contract, the scope of work, and the
approximate number of Full Time Equivalents associated with each
contract.
Answer. The analysis and consultation contracts are listed below.
STATUS VIOLATOR ANALYSIS AND LEAD GENERATION TEAM CONTRACT
Company Name.--SRA, International, Inc.
Contract Number.--HSCENV-08-C-00002.
Term on Contract.--January 1, 2008-December 31, 2010.
Cost.--$17,514,386.
Number of Analysts.--42.
Full Time Equivalents Associated.--58.
This contract is for the analysis of initial leads received by the
Compliance Enforcement Unit (CEU). This contract includes the
capability to act in a surge capacity as National security concerns
arise.
PROGRAM MANAGEMENT AND ANALYTICAL SUPPORT
Company Name.--Booz Allen Hamilton.
Contract Number.--HSCENV-08-F-00207.
Term of Contract.--September 30, 2008-September 29, 2013.
Cost.--$3,264,003.38.
Number of Consultants.--3.
Full Time Equivalents Associated.--4.
This contract is for consulting services. This contract supports
the CEU's school fraud program/major criminal cases as well as data and
analytical support for field agents, subject matter expertise in
support of Student and Exchange Visitor Information System (SEVIS)
related activities, program assessments, process analysis, planning and
strategy, and assistance to agency initiatives.
Question 2. How does the Department prioritize investigation and
enforcement of visa overstays?
Answer. U.S. Immigration and Customs Enforcement (ICE) prioritizes
visa overstay cases for investigation and enforcement by giving
priority to violators who pose the greatest threat to National
security. ICE uses intelligence-based criteria developed in close
consultation with the intelligence and law enforcement communities. ICE
assembles the Compliance Enforcement Advisory Panel (CEAP) three times
a year to ensure that ICE uses the latest threat intelligence to target
nonimmigrant overstays and status violators who pose the highest risks
to National security.
Question 3a. The Department does not request funding for the ICE
Compliance Enforcement Unit in the fiscal year 2010 or fiscal year 2011
budget.
Why does the budget fail to seek funding for this unit in the
fiscal year 2010 and fiscal year 2011 request?
Question 3b. Does ICE need additional funding or personnel to
support this unit's activities?
Answer. ICE investigations conducted through the Compliance
Enforcement Unit (CEU) related to Student and Exchange Visitor
Information System (SEVIS) are funded by the Student and Exchange
Visitor Information Program (SEVP) fee collections. The anticipated
expansion in fiscal year 2010 and fiscal year 2011 will be funded
through the SEVP fee collections as it relates to increased monitoring
of SEVIS. Twenty-one agents have been funded through SEVP in fiscal
year 2010, and we expect to fund 78 additional agents in fiscal year
2011.
At this time, ICE CEU does not anticipate requiring additional
funding or personnel to support compliance enforcement activities.
Question 4. In 2005, the Inspector General issued a report finding
that: (1) ICE received inaccurate leads; (2) was unable to keep pace
with the large volume of lead referrals; and (3) did not complete leads
in a timely manner.
What actions has ICE taken since 2005 to address the IG's findings?
Answer. The actions ICE has taken to address the IG's findings have
led the IG to close all four of its original recommendations for the
Compliance Enforcement Unit (CEU). To address inaccurate leads, CEU
established new business processes with all of its partners to focus
investigative resources on a smaller set of high-quality records,
thereby reducing the number of non-actionable leads. These processes
include access to Department of State data systems, which allow visa
revocations to be rapidly referred to ICE field offices for
investigation. This access also enables CEU to correct data errors in
the Student and Exchange Visitor Information System (SEVIS), enabling
CEU to identify individuals who are no longer residing in the country.
Additionally, the US-VISIT Program office is retrieving additional
departure records not found in the Arrival and Departure Information
System (the entry-exit component of US-VISIT) to ensure that all US-
VISIT overstay records forwarded to CEU are thoroughly researched
through all available entry-exit databases.
To address CEU's ability to keep pace with lead referrals and
complete leads in a timely manner, CEU has established prioritization
levels for leads and has adjusted staffing levels to combat both pace
and quantity of leads. The CEU continuously refines how it prioritizes
leads to ensure that it investigates those that pose the greatest
potential threat to National security and public safety. Additionally,
CEU routinely makes staffing adjustments to address increased workloads
by adding additional research analysts.
Question 5a. You testify that we should expand the Nation's
enforcement efforts concerning overstays and other status violations.
How can DHS enhance its enforcement efforts?
Question 5b. What additional authorities or resources does DHS need
to facilitate this expansion?
Answer. U.S. Immigration and Customs Enforcement (ICE) is exploring
how to better focus its programs that enforce nonimmigrant overstays
and status violators and other interior immigration violations. As ICE
identifies ways to improve its enforcement strategies concerning
overstays and status violators, we look forward to working with the
committee if it is determined that additional authorities or resources
are needed.
Question 6a. According to the IG's 2005 report, investigations were
often delayed because ICE agents had competing demands on their time,
such as assignments to help other law enforcement agencies or other
investigative priorities.
How common are these delays today?
Question 6b. What management controls are in place to ensure that
visa overstay investigations are not delayed due to other
investigations or assignments that compete for agents' time?
Answer. The IG has closed all four of its original recommendations
for the Compliance Enforcement Unit (CEU).
ICE ensures compliance enforcement investigations are completed in
a timely fashion through a variety of oversight techniques. Primarily,
ICE routinely analyzes the total number of hours investigators spend
fact-finding in connection to visa overstays. If the totals are
deficient, corrective measures are implemented to remind field offices
of the importance of these cases. More specifically, ICE reviews
compliance enforcement investigations that have been in the field and
active for more than 90 days. These cases are identified and discussed
with the field investigators to determine the status of the cases and
to reinforce the urgency of completing them.
Question Submitted by Honorable Paul C. Broun of Georgia for John T.
Morton, Assistant Secretary, U.S. Immigration and Customs Enforcement,
Department of Homeland Security
Question. Would you each share your opinion of the impact that
discussions in this country about providing amnesty for those here
illegally, many of whom are visa overstays, and enabling unauthorized
aliens to work legally in the United States, has had and will have on
visa overstays?
Answer. The experience of immigration enforcement officials in the
field has shown that many nonimmigrant aliens who overstay their
authorized period of admission to the United States do so because they
hope to eventually adjust their status to that of a lawful admitted
permanent resident. For example, current law allows nonimmigrant
aliens, even those who overstay their visas, to adjust their status
through marriage to a United States citizen. Similarly, the prospect of
being able to adjust status through legalization cannot be discounted
as an influencing factor for an alien considering overstaying a visa,
or of entering the United States with the intention of remaining
unlawful.
Legalization would not provide a pathway to employment
authorization or legal status for future visa overstays who go ``out of
status'' after a hypothetical legislation was introduced and enacted.
Therefore, in the future, those who overstay may fraudulently attempt
to adopt the identity of an alien who was ``out of status'' and
therefore eligible for legalization. Fortunately, such identity fraud
will be made more difficult by DHS systems that capture the biometrics
of nonimmigrant visitors. Furthermore, visa overstays lack the required
documents to work legally in the United States. Legalization of those
who are currently in the United States illegally would not affect
future visa overstays, who would still lack valid work authorization.
Questions Submitted by Chairman Bennie G. Thompson of Mississippi for
Richard L. Skinner, Inspector General, Department of Homeland Security
Question 1. Your 2005 report on ICE overstay enforcement found that
until the exit portion of US-VISIT is fully implemented, ICE will
continue to waste resources investigating people who have already left
the country. ICE spent $68 million in fiscal year 2009 on compliance
enforcement. In the absence of a full implementation of the entry and
exit portions of US-VISIT, how can the Department limit the resource
drain caused by pursuing these false leads?
Answer. Since we published our report in 2005, U.S. Immigrations
and Customs Enforcement and the National Planning and Prepared
Directorate have reported enhancements to NSEERS, US-VISIT, and the
SEVIS data systems. Therefore, DHS can now do a better job of targeting
overstays and spend less time on pursuing false leads. The problem now,
however, is ICE does not have sufficient resources to pursue these new,
and more reliable leads.
Question 2a. ICE relies on several data systems to develop
investigative leads on overstays (NSEERS, US-VISIT, and SEVIS).
How useful is the information contained in these databases?
Question 2b. What steps should DHS take to improve these data
systems or identify other sources of viable leads?
Answer. We reaffirm ICE's belief that the information in these
systems is very useful. To improve the utility of this information, DHS
must develop additional techniques or processes to integrate and match
this data with other databases such as the Treasury Enforcement
Communications Systems (TECS), Terrorists Identities Datamart
Environment (TIDE), airline manifests, and the Terrorist Screening
Database, to get a better picture of those who may be overstays and
among them, identify those who might pose the greatest threats to our
National security. It is our understanding that this is something that
DHS is working on doing, but, since we have not reviewed these efforts,
we cannot comment on their success.
Question Submitted by Honorable Paul C. Broun of Georgia for Richard L.
Skinner, Inspector General, Department of Homeland Security
Question. Would you each share your opinion of the impact that
discussions in this country about providing amnesty for those here
illegally, many of whom are visa overstays, and enabling unauthorized
aliens to work legally in the United States, has had and will have on
visa overstays?
Answer. The focus of our most recent Immigration and Customs
Enforcement (ICE) audit was to determine whether its information
technology (IT) modernization approach adequately addressed strategic
planning, implementation, and management of technology. As such, the
audit did not examine the utility of specific IT systems or the data
maintained within these systems. However, we found that ICE had
improved its IT strategic planning, oversight of IT spending, and
processes for IT life cycle management. However, ICE is still
challenged to prepare necessary documentation and to review IT projects
mainly due to staffing shortages. We recommended that ICE finalize its
IT Strategic Plan; develop an Office of the Chief Information Officer
staffing plan; establish an agency-wide IT budget process; and
establish a formal process for IT policy development, approval, and
dissemination. Once these recommendations have been properly addressed,
ICE will be in a better position to manage its IT modernization effort
and to improve understanding of how its existing systems and data
contained within them will be able to support effectively its
immigration and customs enforcement goals.
Question Submitted by Honorable Paul C. Broun of Georgia for Edward
Alden, Senior Fellow, Council on Foreign Relations
Question. Would you each share your opinion of the impact that
discussions in this country about providing amnesty for those here
illegally, many of whom are visa overstays, and enabling unauthorized
aliens to work legally in the United States, has had and will have on
visa overstays?
Answer. This question raises the important issue of whether, as a
result of the preliminary discussions that have taken place on an
immigration bill that would include some form of legalization for
unauthorized aliens, the United States may:
(1) Inadvertently be encouraging more people to come here illegally
in hopes of benefiting from legalization, or;
(2) Inadvertently encouraging people to remain here illegally
rather than returning home, again in the hopes of benefiting
from legalization.
Let's take each of those issues in turn. On the first issue, there
has been some good research done into illegal migration flows prior to
the 1986 Immigration Reform and Control Act (IRCA) legislation which
included legalization for nearly 3 million people. The only way this
can be measured is through apprehension data (i.e. the number of
arrests of illegal crossers at or near the border). This has never been
a perfect measure, because it does not directly account for those
missed by the Border Patrol, may count some individuals multiple times,
and does not take into account the impacts of increased Border Patrol
presence. It also leaves out the issue of visa overstayers that was the
subject of the hearing. But it remains the best proxy we have. The
underlying assumption is that higher apprehension rates mean that more
individuals are attempting to enter the United States illegally.
The legislation that became IRCA was first introduced in 1981. Over
the 5 years until its enactment, there was a huge increase in border
apprehensions, from 736,000 in fiscal year 1982 to a peak of 1.6
million in fiscal year 1986, before dropping again to less than 1
million in 1987 and 1988. This indicates that IRCA may well have become
an incentive for illegal migration. The picture is complicated because
Mexico underwent a deep financial and economic crisis in 1982, and
there is strong, persistent evidence that the economic situation in
Mexico is directly correlated to rising illegal migration to the United
States. The legislation also specified that no one who entered the
United States after January 1, 1982 would be eligible for legalization,
with the exception of so-called Special Agricultural Workers. But there
is considerable evidence of document fraud that allowed many who
entered after 1982 to be included in the legalization.
This time around, the pattern has been different. President Bush
introduced the idea of pursuing comprehensive immigration reform in
January 2004, and Congress took up bills subsequently, but there has
been no evidence since then of a surge in illegal migrants hoping to
benefit from a forthcoming legalization. Indeed the opposite has been
true. The number of apprehensions along the border with Mexico in
fiscal year 2009 was at the lowest levels since the early 1970s. There
were 556,000 apprehensions between the ports of entry, about one-third
of the record 1.7 million apprehensions in 2000. During the first 6
months of 2010, there were 245,000 apprehensions, which indicates a
further decline. This is obviously largely a result of the weaker
economy and more effective border enforcement (about which I'm happy to
provide further evidence). So if the potential for legalization is
providing an incentive for illegal migrants--and there is some evidence
from the 1980s that it does--it has not been sufficient to offset the
current disincentives.
The question of whether some visa overstayers or other illegal
migrants may be staying in the United States in the hope of benefiting
from an eventual legalization is still harder to address with any
precision. It is certainly reasonable to assume that, given the
increase in interior enforcement, most illegal immigrants are aware of
the heightened danger of detection and removal, or of the possibility
that they will be identified as unauthorized by an employer and lose
their job (again, I would be happy to provide further evidence on the
increase in interior enforcement). Under the circumstances, each would
make a calculation about the costs of returning home and the risks of
remaining.
Again, the overall statistical evidence is that more unauthorized
immigrants are returning home than ever before. The latest estimate
from DHS is that the unauthorized immigrant population as of January
2009 was 10.8 million, down from 11.6 million in January 2008. This was
the second straight year of decline in the size of the unauthorized
population after two decades of more or less uninterrupted growth.
Again, the explanation is some combination of the weaker economy and
tougher enforcement. Deportations last year totaled 310,000, which is
roughly double the level of a decade prior. So if the possibility of a
legalization program may well be an incentive for some visa overstayers
to remain, on aggregate the evidence is that nonetheless more are
leaving than at any time in recent years.
One conclusion that can be drawn here is that it will matter very
much how any legalization scheme is designed. Most previous legislative
proposals have been designed so that the only individuals eligible for
legalization would be those who had already been in the country for
some specified period prior to the introduction of the legislation.
That is supposed to eliminate the incentive for people to enter the
country illegally, or to overstay visas and remain illegally, in the
hopes of benefiting from legalization. This leaves aside, of course,
the question of fraud. As in 1986, there will certainly be many people
who try to claim a presence in the United States prior to whatever
cutoff date is set by Congress. It is my understanding that DHS is
currently working to establish a system for verification that will do
everything possible to minimize such fraud, but this needs to be a
topic of careful discussion between Congress and the administration
should such legislation move forward.
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