9/11 Commission: Legislative Action Concerning U.S. Immigration Law and Policy in the 108th Congress
CRS Report for Congress
9/11 Commission:
Legislative Action Concerning U.S.
th
Immigration Law and Policy in the 108 Congress
Updated December 21, 2004
Michael John Garcia
Legislative Attorney
American Law Division
Ruth Ellen Wasem
Specialist in Immigration Policy
Domestic Social Policy Division
Congressional Research Service ˜ The Library of Congress
9/11 Commission: Legislative Action Concerning
U.S. Immigration Law and Policy in the 108th Congress
Summary
Reforming the enforcement of immigration law is a core component of the
recommendations made by the National Commission on Terrorist Attacks Upon the
United States (also known as the 9/11 Commission). The 19 hijackers responsible
for the 9/11 attacks were foreign nationals, many of whom were able to obtain visas
to enter the United States through the use of forged documents. Incomplete
intelligence and screening enabled many of the hijackers to enter the United States
despite flaws in their entry documents or suspicions regarding their past associations.
According to the Commission, up to 15 of the hijackers could have been intercepted
or deported through more diligent enforcement of immigration laws.
The 9/11 Commission’s immigration-related recommendations focused
primarily on targeting terrorist travel through an intelligence and security strategy
based on reliable identification systems and effective, integrated information-sharing.
As Congress has considered these recommendations, however, possible legislative
responses have broadened to include significant and possibly far-reaching changes
in the substantive law governing immigration and how that law is enforced, both at
the border and in the interior of the United States.
In response to the Commission’s recommendations, several major bills were
introduced proposing significant revisions to U.S. immigration law and policy. The
two notable bills that would revise immigration laws were H.R. 10, the 9/11
Recommendations Implementation Act, as amended, introduced by the Speaker of
the House of Representatives Dennis Hastert, and passed by the House as S. 2845 on
October 8, 2004, and S. 2845, the National Intelligence Reform Act of 2004, as
amended, introduced by Senators Susan Collins and Joseph Lieberman and passed
by the Senate on October 8, 2004. The Intelligence Reform and Terrorism
Prevention Act of 2004 (P.L. 108-458), a compromise version of these bills that
included some – but not all – of the immigration provisions under consideration, was
signed on December 17, 2004.
This report briefly discusses some of the major immigration areas that were
under consideration in the above-mentioned comprehensive reform proposals,
including asylum, biometric tracking systems, border security, document security,
exclusion, immigration enforcement, and visa issuances. It refers to other CRS
reports that discuss these issues in depth and will be updated as needed.
Contents
In troduction ......................................................1
9/11 Implementation Legislation......................................2
Monitoring of Persons Entering and Leaving the United States..........2
Grounds for Alien Exclusion, Removal, and Relief from Removal.......5
Exclusion and Removal.....................................5
Asylum and Other Forms of Relief from Removal................6
Security of Personal Identification Documents.......................7
Allocation of Additional Resources to Improve Enforcement ...........9
Penalties for Immigration-Related Fraud and Alien Smuggling.........10
The Intelligence Reform and Terrorism Prevention Act of 2004........10
Monitoring of Persons Entering and Leaving the United States.....10
Grounds for Alien Exclusion, Removal, and Relief from Removal..11
Security of Personal Identification Documents..................11
Allocation of Additional Resources to Improve Enforcement.......11
Penalties for Immigration-Related Fraud and Alien Smuggling.....12
9/11 Commission: Legislative
Action Concerning U.S. Immigration
th
Law and Policy in the 108 Congress
Introduction
The July 2004 report of the National Commission on Terrorist Attacks Upon the
United States (also known as the 9/11 Commission) concluded that the key officials
responsible for determining alien admissions (consular officers abroad and
immigration inspectors in the United States) were not considered full partners in
counterterrorism efforts prior to September 11, 2001, and as a result, opportunities
to intercept the September 11 terrorists were missed.1 The 9/11 Commission
contended that “(t)here were opportunities for intelligence and law enforcement to
exploit al Qaeda’s travel vulnerabilities.” The report went on to state: “Considered
collectively, the 9/11 hijackers
!included known al Qaeda operatives who could have been
watchlisted;
!presented fraudulent passports;
!presented passports with suspicious indicators of extremism;
!made detectable false statements on visa applications;
!made false statements to border officials to gain entry into the
United States; and
!violated immigration laws while in the United States.”2
The 9/11 Commission issued several recommendations that directly pertain to
immigration law and policy. These recommendations are:
!Targeting travel is at least as powerful a weapon against terrorists as
targeting their money. The United States should combine
intelligence, operations, and law enforcement in a strategy to
intercept terrorists, find terrorist travel facilitators, and constrain
terrorist mobility.
!The U.S. border security system should be integrated into a larger
network of screening points that includes our transportation system
and access to vital facilities, such as nuclear reactors.
1 U.S. National Commission on Terrorist Attacks upon the United States, The 9/11
Commission Report, Executive Summary, p. 14, July 2004 (hereafter The 9/11 Commission
Report).
2 The 9/11 Commission Report, Executive Summary, pp. 13-14, July 2004.
!The Department of Homeland Security, properly supported by the
Congress, should complete, as quickly as possible, a biometric entry-
exit screening system, including a single system for speeding
qualified travelers.
!The U.S. government cannot meet its own obligations to the
American people to prevent the entry of terrorists without a major
effort to collaborate with other governments.3
These recommendations have broad implications for immigration law and
policy. Also, as Congress has moved on the Commission’s recommendations,
immigration-related reforms have been a key component of major legislative
proposals. This report summarizes the major proposed reforms considered and
adopted in the 108th Congress.
9/11 Implementation Legislation
Of the several bills that sought to implement recommendations of the 9/11th
Commission in the 108 Congress, two passed their respective Houses, and both of
these proposed revisions to immigration law: H.R. 10, the 9/11 Recommendations
Implementation Act, as amended, introduced by the Speaker of the House of
Representatives Dennis Hastert and passed by the House as S. 2845 on October 8,
2004 (House-passed S. 2845); and S. 2845, the National Intelligence Reform Act of
2004, as amended, introduced by Senators Susan Collins and Joseph Lieberman and
passed by the Senate on October 8, 2004 (Senate-passed S. 2845). Certain
immigration-related provisions of these bills were significant sources of contention
by lawmakers, curtailing immediate agreement of a compromise bill. The conference
report on S. 2845 passed the House on December 7 and the Senate on December 8,4
458), a compromise bill signed on December 17, 2004 includes some – but not all
– of the immigration provisions that were originally under consideration.
The major areas that were under consideration in these comprehensive reform
proposals are briefly discussed below. References to CRS reports that analyze these5
issues in depth are listed for each major area. Summaries of the immigration
provisions in P.L. 108-458 concludes the report.
Monitoring of Persons Entering and Leaving the United States
As mentioned above, actions to identify and intercept terrorists who are
attempting to enter or leave the United States are a key component of the 9/11
3 For a discussion of these recommendations, see The 9/11 Commission Report, Chapter
4 108th Congress, 2nd Session, House of Representatives, Conference report to accompany
S. 2845, H.Rept. 108-796, Dec. 7, 2004.
5 For an overview of all major immigration legislation under consideration, see CRS Report
RL32169, Immigration Legislation and Issues in the 108th Congress, coordinated by
Andorra Bruno.
Commission’s recommendations. In 1996, Congress required the development of an
automated entry and exit data system to track the arrival and departure of aliens, but
such a system has yet to be fully implemented. Following the 9/11 terrorist attacks,
Congress enacted additional measures, including the USA PATRIOT Act (P.L.
107-173), to encourage the more expeditious development of an automated entry and
exit data system, and to further require that biometric identifiers be used in passports,
visas, and other travel documents to improve their security. To keep inadmissible
aliens abroad, the Illegal Immigration Reform and Immigrant Responsibility Act of
inspection program at selected locations overseas under which immigration officers
inspect aliens before their final departure to the United States, and authorized
assistance to air carriers at selected foreign airports to help in the detection of
fraudulent documents.
A number of proposals were made in the 108th Congress to improve the accurate
monitoring of persons entering and exiting the United States. Many of these
proposals were not specific to aliens, but covered all persons traveling to or from the
United States. These proposals included:
!hastening the development and installation of a biometric entry and
exit data system that is integrated with various databases and data
systems that process or contain information on aliens [House-passed,
Senate-passed];
!requiring the Secretary of Homeland Security to issue a notice of
proposed rulemaking to allow for the pre-flight comparison of
passenger records for any flight to or from the United States with the
integrated terrorist watch list, and establishing an appeals process
allowing for modification of records [House-passed];
!requiring the Secretary of Homeland Security to implement a
watchlist for passengers of cruise ships [Senate-passed];
!authorizing DHS to establish permanent pre-enrollment programs
that subject participants, who may be either aliens and citizens of the
United States, to criminal and watch-list screenings and fingerprint
checks, so that the inspections of such program participants may be
expedited at ports of entry [House-passed];
!improving the security of passports and other travel documents,
including through the strengthening of security requirements for
“breeder” documents that are used to obtain passports or other travel
documents [House- and Senate-passed];
!encouraging the adoption of international standards for the uniform
translation of names into the Roman alphabet for purposes of travel
documents and security systems [House-passed];
!expanding pre-inspection programs in foreign countries and
assistance to air carriers at selected foreign airports in the detection
of fraudulent documents [House- and Senate-passed];
!improving the security of the visa issuance process by providing
consular officers and immigration inspectors greater training in
detecting terrorist indicators, terrorist travel patterns and fraudulent
documents [House- and Senate-passed];
!improving the security of the visa issuance process by, among other
things, (1) establishing an Office of Visa and Passport Security
within the State Department to develop a strategic plan to disrupt the
operations of individuals and organizations engaged in travel
document fraud, (2) increasing the number of consular officers, (3)
codifying that all applications for temporary visas be adjudicated by
a consular officer, (4) providing consular officers greater training in
detecting fraudulent documents, and (5) stationing anti-fraud
specialists at consular posts overseas [House-passed];
!requiring persons applying for nonimmigrant visas between the ages
of 12 and 65 to be interviewed by consular officer prior to visa
issuance, subject to waiver in certain circumstances [Senate-passed];
!authorizing and encouraging the President to enter into international
agreements to curtail terrorist travel by upgrading verification and
information-sharing systems [House- and Senate-passed];
!limiting the President’s ability to waive general statutory
requirements requiring U.S. citizens traveling abroad or attempting
to enter the United States to bear a valid U.S. passport, so that such
a waiver can only be exercised with respect to U.S. citizens traveling
to or from foreign contiguous territories who are bearing
identification documents designated by DHS as (1) reliable proof of
U.S. citizenship, and (2) of a type that may not be issued to an
unlawfully present alien within the United States [House-passed];
!amending the present waiver authority concerning document
requirements for arriving nationals from foreign contiguous
countries or adjacent islands, so that such waivers may only be
granted (in non-emergency situations) through a joint determination
by the Secretary of Homeland Security and Secretary of State on the
basis of reciprocity, and then only if the arriving foreign national is
in possession of identification documents deemed secure by the
Secretary of Homeland Security [House-passed]; and
!requiring the Secretary of State, in consultation with DHS,
expeditiously to develop and implement a plan for the use of
biometric passports. This plan would require U.S. citizens and
foreign nationals from contiguous territories or adjacent islands (i.e.,
aliens currently waived in § 214(d)(4) of INA) to present biometric
passports, or some other type of secure biometric travel document,
for travel into the United States [Senate-passed].
For further discussion of these and related topics, see CRS Report RL32399,
Border Security: Inspections Practices, Policies, and Issues; CRS Report RL32188,
Monitoring Foreign Students in the United States: The Student and Exchange Visitor
Information System (SEVIS), CRS Report RL32234, U.S. Visitor and Immigrant
Status Indicator Technology Program (US-VISIT); CRS Report RL31512, Visa
Issuances: Policy, Issues, and Legislation; and CRS Report RL32221, Visa Waiver
Program.
Grounds for Alien Exclusion, Removal, and Relief from Removal
A primary area of difference between House-passed and Senate-passed versions
of S. 2845 concerned grounds for alien exclusion, removal, and relief from removal,
as only the House-passed bill dealt extensively with these areas. The Immigration
and Nationality Act (INA) establishes admission and removal criteria for all foreign
nationals seeking to enter and/or remain in the United States, and also provides
certain discretionary and non-discretionary forms of relief from removal, such as
granting asylum or withholding removal to a country where an alien is likely to face
serious persecution or torture. Starting with the Anti-Drug Abuse Act of 1988 (P.L.
100-690) and continuing through the Antiterrorism and Effective Death Penalty Act
of 1996 (P.L. 104-132) and the IIRIRA, Congress has expanded the grounds of
inadmissibility and deportation and the use of expedited removal, while it has also
restricted relief from removal and judicial review of removal decisions.
Subsequently, the Supreme Court has held that there is a strong presumption in favor
of judicial review of administrative actions, and therefore, in the absence of a clear
statement of congressional intent to repeal habeas corpus jurisdiction over removal-
related matters, such review is still considered available.6 Furthermore, the Court
found that eliminating any judicial review, including habeas review, without any
substitute form of review for pure questions of law would raise serious constitutional
questions.7
Exclusion and Removal. After the 9/11 terrorist attacks, Congress further
expanded the terrorism grounds for inadmissibility, removal, and mandatory
detention in the USA PATRIOT Act in response to concerns that loopholes and
inadequacies in the immigration laws were contributing to the ability of terrorists and
their accomplices to travel to and remain in the United States. House-passed S. 2845
sought to broaden the scope of terror-related activity making an alien inadmissible
or deportable, and limit the availability of relief from removal in certain
circumstances. These proposals included:
!barring aliens who are engaged or have engaged in terrorist activity
from having their removal withheld (except for in cases of aliens
seeking relief under regulations implementing the U.N. Convention
against Torture), and also denying such relief to aliens found by the
Attorney General to have engaged in other terror-related activity
(i.e., incitement or espousal of terrorist activities) [House-passed];
!expanding grounds making of terror-related activity making an alien
inadmissible and deportable, including receiving military-type
training by or on behalf of an organization designated as a terrorist
organization at the time of training [House-passed];
!expanding the definitions of “engaged in terrorist activity” and
“terrorist organization,” which are used to describe certain grounds
for inadmissibility and deportability, to include a broader scope of
6 Immigration and Naturalization Service v. St. Cyr, 533 U.S. 289 (2001).
7 Id.
conduct relating to providing money or material support to a terrorist
organization [House-passed];
!providing for the inadmissibility and removability of aliens who
have committed, ordered, assisted, incited, or otherwise participated
in acts of genocide, torture, or extrajudicial killings abroad, or who
have committed severe violations of religious freedom while serving
as a foreign government official [House-passed];
!clarifying that an alien may be removed to his country of citizenship,
birth, or residence, unless such a country physically prevents the
alien from entering the country or unless removal to such a country
would be prejudicial to the United States [House-passed];
!providing the Secretary of Homeland Security with greater discretion
in deciding the countries to which an inadmissible or deportable
alien may be removed [House-passed];
!expanding the class of aliens arriving in the United States subject to
immediate removal without further hearing or review, by increasing
the prior continuous U.S. physical presence required for exemption
from such removal from two years to five years [House-passed];
!providing that an alien currently being prosecuted for a crime or
serving a criminal sentence is not subject to immediate removal,
presumably to ensure effective exercise of U.S. criminal jurisdiction
[House-passed];
!eliminating habeas review and other non-direct judicial review for
certain removal decisions and clarifying that in all immigration
provisions restricting judicial review, such restrictions include
habeas and other non-direct review, but that such restrictions do not
preclude federal appellate court consideration of constitutional
claims or other purely legal issues raised in accordance with current
statutory procedures [House-passed]; and
!precluding courts from staying a removal order pending judicial
review, unless the alien shows by clear and convincing evidence that
the entry or execution of such order is prohibited as a matter of law
[House-passed].
Asylum and Other Forms of Relief from Removal. The United States
has long held to the principle that it will not return a foreign national to a country
where his life or freedom would be threatened. Aliens seeking asylum must
demonstrate a well-founded fear that if returned home, they will be persecuted based
upon one of five characteristics: race, religion, nationality, membership in a
particular social group, or political opinion. In addition, regulations implementing
the United Nations Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (hereafter referred to as Torture Convention)
prohibit the return of any person to a country where there are “substantial grounds”
for believing that he or she would be in danger of being tortured. Proposals to
modify asylum and other forms of relief from removal include found in House-passed
and Senate-passed versions of S. 2845 included:
!establishing more stringent standards for asylum applicants accused
by their home countries of being involved in terrorist or guerrilla-
related activities, by requiring these applicants to demonstrate that
their race, religion, nationality, membership in a particular social
group, or political opinion was or will be a central reason for their
persecution [House-passed];
!expressly providing that aliens who are a danger to the community
or national security of the United States and who are ordered
removed may be indefinitely detained pending removal, in the
Secretary of Homeland Security’s nonreviewable discretion, and
subject to review every six months by the Secretary [House-passed].
For additional background, see CRS Report RL32564, Immigration: Terrorist
Grounds for Exclusion of Aliens; CRS Report RL32276, The U.N. Convention
Against Torture: Overview of U.S. Implementation Policy Concerning the Removal
of Aliens; and CRS Report RL32621, U.S. Immigration Policy on Asylum Seekers.
Security of Personal Identification Documents
There has been some concern that the acquisition of U.S. identification
documents by terrorist aliens may facilitate their ability to engage in terrorist
activities. The 9/11 Commission noted that “[a]ll but one of the 9/11 hijackers
acquired some form of U.S. identification document, some by fraud...[and] these
forms of identification would have assisted them in boarding commercial flights,
renting cars, and other necessary activities.”8 Accordingly, the Commission
recommended that national standards be set for the issuance of birth certificates and
drivers’ licenses to prevent their fraudulent acquisition.
The adoption of national standards for the issuance of drivers’ licenses and other
forms of identification has long been the subject of controversy. Although not
technically an immigration policy, the concern over these forms of identification —
often referred to as “breeder documents” — has often been linked with immigration
legislation. Pursuant to § 656 of the IIRIRA, Congress provided standards for
acceptance of state drivers’ licenses and birth certificates when used for federal
purposes. Many opponents alleged that this provision was a step towards the creation
of a national identification card, and it was subsequently repealed in 2000.
In response to the 9/11 Commission’s recommendations, however, a number of
proposals were made to increase federal oversight over and improve the security of
drivers’ licenses, birth certificates, and other state-issued forms of identification.
Proposals were also made to improve the security of Social Security documents and
verify the identity of persons applying for benefits under the INA. These proposals
to improve identification verification procedures and the security of personal
identification documents included:
!barring federal agencies from accepting, for any official purpose,
state-issued drivers’ licenses or other identification cards unless a
state fulfills certain federal security requirements concerning the
issuance of such documents [House-passed, Senate-passed];
8 The 9/11 Commission Report, p. 390.
!barring federal agencies from accepting, for any official purpose,
state-issued documents that do not meet national minimum standards
concerning the information and features included upon the drivers’
licenses, identification cards, and birth certificates that states may
issue [House-passed, Senate-passed];
!barring federal agencies from accepting, for any official purpose,
state-issued documents that do not meet national minimum issuance
and record-keeping standards for the issuance of drivers’ licenses,
identification cards, and birth certificates by states [House-passed,
Senate-passed];
!barring federal agencies from accepting, for any official purpose,
state-issued documents that do not meet certain identification
verification procedures to ensure the accuracy of drivers’ licenses,
identification cards, and birth certificates issued (including under
H.R. 10 the prohibition on the acceptance of any foreign documents
except official passports as a means to verify an applicant’s identity)
[House-passed, Senate-passed]; and
!providing relevant federal departments with the authority to conduct
periodic audits of each state’s compliance with federal requirements
concerning the issuance of drivers’ licenses, identification cards, and
birth certificates [Senate-passed];
!making certain grants to states contingent upon their participation in
an interstate compact linking their respective motor vehicle
databases [House-passed];
!creating electronic birth and death registration systems that rely on
a common data set and exchange protocol, so as to assist officials in
assessing the validity of birth certificates and other records [House-
passed];
!establishing an electronic interface enabling authorized federal and
state officials to verify records concerning vital events (i.e., birth,
death, or marriage) [House-passed];
!restricting the issuance of multiple replacement Social Security cards
[House-passed, Senate-passed];
!prohibiting a person’s Social Security number from being displayed
on his or her driver’s license or motor vehicle registration [House-
passed];
!improving the application process for the “enumeration at birth”
program which provides Social Security numbers to newborns
[House-passed];
!studying means for requiring photographic identification for Social
Security numbers [House-passed];
!requiring independent verification of any birth record submitted with
an application for a Social Security account number [House-passed,
Senate-passed]; and
!requiring that, for purposes of establishing his or her identity to a
federal employee, an alien present in the United States may present
a valid foreign passport or an immigration document issued by DHS
or the Department of Justice under the authority of immigration
laws, and no other document can be used for such purposes [House-
passed].
For further background, see CRS Report RS21953, The 9/11 Recommendations
Implementation Act (H.R. 10) and the National Intelligence Reform Act of 2004 (S.
2845): National Standards for Drivers’ Licenses, Social Security Cards, and Birth
Certificates; CRS Report RL32127, Summary of State Laws on the Issuance of
Driver’s Licenses to Undocumented Aliens; CRS Report RL32094, Consular
Identification Cards: Domestic and Foreign Policy Implications, the Mexican Case,
and Related Legislation; CRS Report RS21137, National Identification Cards: Legal
Issues; and CRS Report RL30318, The Social Security Number: Legal Developments
Affecting Its Collection, Disclosure and Confidentiality.
Allocation of Additional Resources to Improve Enforcement
DHS is the primary federal agency responsible for enforcing immigration laws
and securing the border. The DHS Bureau of Customs and Border Protection (CBP)
is responsible for patrolling the U.S. border and conducting immigration and customs
inspections at ports of entry, while the DHS Bureau of Immigrations and Customs
Enforcement (ICE) investigates immigration and customs violations in the interior
of the country. Employees in other federal agencies also play a significant role in
enforcing immigration laws and protecting border security, such as consular officers
in the State Department who are responsible for screening aliens seeking visas to
enter the United States from abroad. In issuing its recommendations to improve
homeland security, the 9/11 Commission noted the importance of a border security
system that can adequately identify persons attempting to enter the United States. A
number of proposals made in response to the 9/11 Commission’s findings called for
the allocation of additional resources to improve border security. Of the bills
implementing the 9/11 Commission recommendations, the proposals included:
!increasing the number of full-time border patrol agents, immigration
and customs-enforcement investigators, and consular officers
[House-passed, Senate-passed];
!directing the Secretary of Homeland Security to increase Detention
and Removal Operations (DRO) bed space [House-passed];
!improving the training of immigration enforcement officials within
DHS and consular personnel within the State Department [House-
passed, Senate-passed];
!acquiring and deploying to all consulates, ports of entry, and
immigration benefits offices, technologies (including biometrics) to
facilitate document authentication and detection of potential terrorist
indicators on travel documents [House-passed, Senate-passed];
!expanding and increasing appropriations for pre-inspection at
foreign airports of passengers traveling to the United States [House-
passed];
!expediting construction to fill two gaps in the 14 mile long barrier
at the San Diego border [House-passed];
!directing the Secretary of Homeland Security to develop and
implement a plan for continuous surveillance of the Southwest
border of the United States by remotely piloted aircraft [Senate-
passed]; and
!requiring the Secretary of Homeland Security to carry out an
advanced technology security pilot program on the Northern border
of the United States [Senate-passed].
For additional background on the roles of various agencies in protecting border
security, see CRS Report RL32562, Border Security: The Role of the U.S. Border
Patrol; CRS Report RL32399, Border Security: Inspections Practices, Policies, and
Issues; CRS Report RL32566, Border and Transportation Security: Appropriations
for FY2005; CRS Report RL32369, Immigration-Related Detention: Current
Legislative Issues; and CRS Report RL32256, Visa Policy: Roles of the Departments
of State and Homeland Security.
Penalties for Immigration-Related Fraud and Alien Smuggling
At the heart of the INA are the rules on which aliens may enter and remain in
the United States, the conditions of their stay, and the procedures for their entry and
removal. In support of this structure, federal law has concomitantly imposed civil
and criminal penalties on a variety of activities — i.e., smuggling or harboring illegal
aliens, committing immigration-related document fraud to secure either entry into the
United States or a benefit under the INA — that facilitate or further violations of the
legal immigration system. House-passed S. 2845 proposed to heighten criminal
penalties for conduct violating or facilitating the violation of U.S. immigration law,
which include increasing the criminal and immigration-related penalties for
document fraud, alien smuggling, and making false claims of U.S. citizenship.
For additional background, see CRS Report RL32480, Immigration
Consequences of Criminal Activity; CRS Report RL32657, Immigration-Related
Document Fraud: Overview of Civil, Criminal, and Immigration Consequences; and,
CRS Report RS21043, Immigration: S Visas for Criminal and Terrorist Informants.
The Intelligence Reform and Terrorism Prevention Act of
2004
The Intelligence Reform and Terrorism Prevention Act of 2004, the compromise
version of S. 2845 that ultimately was enacted into law, included some – but not all
– of the immigration provisions in both the House and Senate versions of S. 2845.
The major features of the immigration-related provisions in the act are briefly
discussed below.
Monitoring of Persons Entering and Leaving the United States. The
Intelligence Reform and Terrorism Prevention Act requires accelerated deployment
of the biometric entry and exit system to process or contain certain data on aliens and
their physical characteristics. It requires an in-person consular interview of most
applicants for nonimmigrant visas between the ages of 14 and 79, and also requires
an alien applying for a nonimmigrant visa to completely and accurately respond to
any request for information contained in his or her application. The act also expands
the pre-inspection program that places U.S. immigration inspectors at foreign
airports, increasing the number of foreign airports where travelers would be pre-
inspected before departure to the United States. Moreover, it requires individuals
entering into the United States (including U.S. citizens and visitors from Canada and
other Western Hemisphere countries) to bear a passport or other documents sufficient
to denote citizenship and identity.
The act requires improvements in technology and training to assist consular and
immigration officers in detecting and combating terrorist travel. It (1) establishes the
Human Smuggling and Trafficking Center, which includes an interagency program
devoted to countering terrorist travel; (2) requires the Secretary of Homeland
Security, in consultation with the Director of the National Counter Terrorism Center,
to establish a program to oversee DHS’s responsibilities with respect to terrorist
travel; and (3) establishes a Visa and Passport Security Program within the Bureau
of Diplomatic Security at the Department of State.
Grounds for Alien Exclusion, Removal, and Relief from Removal.
The Intelligence Reform and Terrorism Prevention Act makes any alien deportable
who has received military training from or on behalf of an organization that, at the
time of training, was a designated terrorist organization. It also makes the revocation
of a nonimmigrant visa by the State Department grounds for removal. The visa
revocation, however, is reviewable in a removal proceeding in cases where visa
revocation provides the sole ground for removal. The act makes inadmissible and
deportable any alien who (1) has ordered, incited, assisted, or participated in conduct
that would be considered genocide under U.S. law; (2) committed or participated in
an act of torture or an extrajudicial killing; or (3) while serving as a foreign official,
was responsible for or directly carried out, at any time, particularly severe violations
of religious freedom. The act also requires the Government Accountability Office
to conduct a study evaluating the degree that weaknesses in the current U.S. asylum
system have been or could be exploited by aliens involved in terrorist-related activity.
Security of Personal Identification Documents. The Intelligence
Reform and Terrorism Prevention Act requires the establishment of new standards
aimed at ensuring the integrity for federal use of birth certificates, state-issued
driver’s licenses and identification cards, and social security cards. States may
receive grants to assist them in implementing the proposed birth certificate and
driver’s license standards.
Allocation of Additional Resources to Improve Enforcement. The act
authorizes the Secretary of State to increase the number of consular officers by 150
per year from FY2006 through FY2009 above the number of such positions for
which funds were allotted for the preceding fiscal year. It also increases the numbers
of border patrol agents by not less than 2,000, in each year FY2006 through FY2010,
and requires a number of agents equaling at least 20% of each year’s increase in
agents to be assigned to the northern border. The act also increases the number of
ICE investigators by not less than 800 in each year FY2006 through FY2010, and
requires an increase in the number of beds available for immigration detention and
removal operations by not less than 8,000 over the same period. Further, the act
establishes a pilot program to test advanced technologies to improve border security
between ports of entry along the northern border of the United States. It also requires
the Secretary of Homeland Security to submit to the President and Congress a plan
for the systematic surveillance of the southwest border of the United States by
remotely piloted aircraft, and to implement such plan as a pilot program.
Penalties for Immigration-Related Fraud and Alien Smuggling. The
Intelligence Reform and Terrorism Prevention Act increases criminal penalties for
alien smuggling in certain circumstances and requires the Secretary of Homeland
Security to develop an outreach program in the United States and overseas to educate
the public about the penalties for illegally bringing in and harboring aliens.