Copyright © 2010, American Immigration Lawyers Association. All rights reserved. Reprinted, with permission, from AILA’s Immigration Practice Pointers, (2010–11 Edition), available from AILA Publications, 1-800-982-2839, www.ailapubs.org.
GOVERNMENT LOOKOUT LISTS: WHAT ARE THEY, WHO HAS ACCESS,
AND HOW TO CHALLENGE OR REMOVE NAMES
by Gregory Wald, Yeu Hong & Dan Larsson *
INTRODUCTION
Just like Santa Claus, the U.S. government has its own versions of “the naughty list.” But this one doesn’t
record boys and girls who fibbed or acted mean to schoolmates on the playground. These are the people the
U.S. government doesn’t want to board planes, enter the country or obtain a visa without a lot of hassle. In
addition, there are ever increasing efforts by the U.S. government to create, improve, implement, and coordinate databases and systems that are used for reasons such as national security, visa processing, employment
verification, and cyber security. Some of these systems and uses are transparent, some are not. Does all this
information and technology make us safer and better off? The answer likely depends on who you ask.
The purpose of this article is to provide some background and commentary on the various lookout, watch,
and other lists, which may be applicable in immigration related cases. It should be noted that this is a constantly
evolving area which is also affected by politics, economics and often highly emotional areas such as privacy and
civil rights. Consequently, it is likely that by the time this article is put into print things will have changed . . . .
WHO ARE THE “PLAYERS”?
Before the September 11, 2001, attacks, more than a dozen watch lists were floating around different federal agencies. According to a 2003 U.S. Government Accountability Office (GAO) Report, ten federal agencies, 1 spanning five government departments 2 —have developed and maintained criminal and terrorist “watch
lists,” along with many other databases. 3 More than 50 other federal agencies, and many state and local gov-
*
Gregory Wald is a senior attorney with Squire, Sanders & Dempsey, LLP in San Francisco where he directs the firm’s northern California immigration practice. From 1997 to 2000 he served as an assistant district counsel for the U.S. Immigration and
Naturalization Service in the Miami and San Francisco districts. Mr. Wald also has the pleasure of serving on the executive
board of the AILA Northern California chapter, currently in the role of vice chair.
Yeu S. Hong is an associate with Mukai & Kussin, LLP. He is a past chair of the AILA Southern California chapter and currently serves on AILA’s DOS liaison and distance learning committees. Mr. Hong received his J.D. from the University of San
Diego School of Law in 1997.
Dan R. Larsson was born in Sweden in 1962 and practices immigration in Bend, Oregon. He speaks several languages, graduated from the University of Oregon and received his law degree from Seattle University in 1994. He is admitted to practice in
Oregon and Washington, and before U.S. district and circuit courts. Mr. Larsson was recently featured in a book published
through Stanford Law School, Beyond the Big Firm: Profiles of Lawyers Who Want Something More (Aspen Publishing
2007). He also enjoys sports and playing music, and toured as a recording musician in the 1980s.
1
The GAO Report, “Information Technology,” GAO-03-322 (April 2003), noted that nine federal agencies, spanning five departments, have developed and maintained twelve criminal and terrorist “watch lists.” The number of agencies and departments
has changed with the creation of the Department of Homeland Security (DHS). Now, the twelve watch lists are used by ten
federal agencies and four Departments. The ten agencies are the State Department’s Bureau of Intelligence and Research and
Bureau of Consular Affairs; Federal Bureau of Investigation (FBI), U.S. Citizenship and Immigration Services (USCIS), U.S.
Customs and Border Protection (CBP), U.S. Immigration and Customs Enforcement (ICE), and Transportation Security Administration (TSA). Of these, USCIS, TSA, and CBP are incorporated into the Department of Homeland Security.
2
The Departments of Homeland Security (DHS), Defense (DOD), Justice (DOJ), State (DOS), and Treasury (DOT).
3
The watch lists for some of the agencies that traditionally may be considered “ beyond the scope of immigration” include:
DOD: Air Force (Office of Special Investigations)–Top Ten Fugitive; DHS: TSA–No Fly and Selectee; DOJ: U.S. Marshals
Service–Warrant Information, FBI–Violent Gang and Terrorist Organization File (part of NCIC) and Integrated Automatic
Fingerprint Identification System (See Section 4 infra, the DHS IDENT system is being integrated with the FBI’s Integrated
Automated Fingerprint Identification System), U.S. National Central Bureau for Interpol–Interpol Terrorism Watch List (This
information is shared with agencies involved in entry control, exit control, and stay management).
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ernment entities, have access to one or more of these lists. 4 Different policies and procedures govern whether
and how data maintained in these databases are shared with others. For immigration purposes, about eight
watch lists, maintained by seven agencies, spanning three federal government departments, have traditionally
been of primary relevance. 5
However, things are changing. For example, the National Counterterrorism Center (NCTC) 6 was established by Presidential Executive Order 13354 in August 2004, and codified by the Intelligence Reform and
Terrorism Prevention Act of 2004 (IRTPA). 7 NCTC implements a key recommendation of the 9/11 Commission: “Breaking the older mold of national government organizations, this NCTC should be a center for joint
operational planning and joint intelligence, staffed by personnel from the various agencies.” 8 Now, many of
those records that were previously spread between several agencies have been consolidated into one master
list maintained by the Federal Bureau of Investigation (FBI)’s Terrorist Screening Center (TSC). 9 The development of TSC and the master list grew out of the Homeland Security Presidential Directive 6, signed by
President Bush in 2003. The directive outlined the federal government’s plan to combine all former watch
lists into one master list of people “known or appropriately suspected to be or have been engaged in conduct
constituting, in preparation for, in aid of, or related to terrorism.” 10
Presumably, the U.S. government’s Terrorist Screening Database (TSDB) keeps track of people who are
known or suspected terrorists. Prior to the creation of the TSDB, information about known or suspected terrorists was dispersed throughout the U.S. government and no one agency was charged with consolidating it
and making it available for use in terrorist screening. Under Homeland Security Presidential Directive
(HSPD) 6, the Terrorist Screening Center (TSC) now provides “one-stop shopping” so that every government
screener is using the same terrorist watch list—whether it is an airport screener, an embassy official issuing
visas overseas, or a state or local law enforcement officer on the street. The TSC allows government agencies
to run name checks against the same comprehensive list with the most accurate, up-to-date information about
known and suspected terrorists. 11
Other agencies which maintain databases and watch lists include the U.S. Department of Treasury, 12
which maintains a public list of Specifically Designated Nationals and Blocked Persons. 13 The people on this
list are prevented from doing any financial business in the United States, including opening bank accounts or
obtaining loans. 14 Its Office of Terrorism and Financial Intelligence (TFI) marshals the department’s intelligence and enforcement functions with the twin aims of safeguarding the financial system against illicit use
and combating rogue nations, terrorist facilitators, weapons of mass destruction (WMD) proliferators, money
launderers, drug kingpins, and other national security threats.
It is becoming increasingly clear that the government is spending a lot of effort and funds on maintaining
and expanding these watch lists and databases. For example, on February 1, 2010, the U.S. Department of
Homeland Security (DHS) announced its proposed $56.3 billion budget, prioritizing efforts to enhance secu-
4
As a general rule, the federal agencies that have watch lists share the lists among themselves. However, half of these agencies
share their respective lists with state and local agencies, and one-fourth share them with private entities. However, given the
creation of e.g. the NCTC, etc., the trend appears to be going towards increased sharing.
5
The primary watch lists and databases for U.S. immigration as well as for passenger screening are discussed in Section 4 below.
6
See http://www.nctc.gov (last visited on 2/26/2010).
7
Pub. L. 108–458, 118 Stat. 3638 (2004).
8
See Final Report of the National Commission on Terrorist Attacks Upon the United States, at p. 403.
9
See, e.g., http://www.fbi.gov/terrorinfo/counterrorism/tsc.htm.
10
See, e.g., http://www.dhs.gov/xabout/laws/gc_1214594853475.shtm.
11
See, e.g., http://www.fbi.gov/terrorinfo/counterrorism/faqs.htm.
See, e.g., www.treas.gov.
13
See, e.g., http://www.treas.gov/offices/enforcement/ofac/sdn/.
12
14
http://www.treas.gov/offices/enforcement/.
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rity measures that protect against terrorism and other threats and reflecting the Department’s commitment to
fiscal discipline and efficiency. 15
In addition, on February 24, 2010, ICE issued an advance copy of a Privacy Act 16 notice of modification
to an existing “system of records” for the 2011 Immigration and Enforcement Operational Records System of
Records. This item was published in the Federal Register on March 1, 2010. 17 Among other things, with this
notice the DHS is updating and reissuing DHS/Immigration and Customs Enforcement (ICE)-09007 Law Enforcement Support Center (LESC) Alien Criminal Response Information Management (ACRIMe) System
(73 FR 74739, December 9, 2008) to add or modify the categories of records and individuals, purpose statement, and routine uses for the system of records in order to clarify the nature of the customs and immigration
law enforcement records maintained by ICE. The system of records is being renamed DHS/ICE-007 Alien
Criminal Response Information Management (ACRIMe) System of Records.
As the government increases the allocation of resources for these lists, and likewise its vested interest in
homeland defense and counter-terrorism, it is only logical to expect that efforts to obtain information or redress errors contained within these databases will only become more lengthy and difficult.
HOW ARE THESE SYSTEMS USED?
Traditionally, the various systems and databases were generally employed by the agency with which the
application was filed. However, as indicated in this article, the trend is towards increased data sharing between agencies. In short, today the results of “hits” impact US citizens, permanent residents, and foreign nationals alike. Below are brief summaries of how the various systems are used.
Visa Processing and Applications:
During the visa application process, all foreign nationals (as well as U.S. citizen and permanent resident petitioners) are checked against various security databases and watch lists. Some applicants may be required to undergo further government security clearances, based on the results of the watch list check or because of the applicant’s nationality and background. If the applicable agency determines that a security clearance is required,
the foreign national cannot be issued a visa or have his or her application approved until the clearance is completed. Because this process is confidential, the consulate will not confirm that a clearance is underway; instead,
it typically informs the visa applicant that additional “administrative processing” is required. Though some security clearances can be resolved in days, most take at least a few weeks and some can take months (or even years)
to complete. Generally, the Department of State (DOS) will not expedite a security clearance except in very rare
cases, such as a medical emergency or when there is a significant U.S. interest. In some cases, it has been required to litigate cases that have been held up (sometimes for several years) because of “security checks.”
Travel
Given the increased review of security procedures (including the creation of the NCTC), it is expected that
the U.S. government will increase its scrutiny of existing security databases and watch lists—including “no
fly” lists—and broaden the criteria that could lead to an individual being placed on such a list. As a result,
more travelers are finding themselves subject to travel restrictions, closer questioning and searches at airports,
and heightened immigration inspection at ports of entry. Where the government has significant security concerns about a foreign national, it could also decide to revoke a previously-issued U.S. visa and/or delay processing of applications. Given that government officials have broad authority to require any foreign national
(and even U.S. citizens) to undergo additional security checks, there is often little an immigration practitioner
can do to expedite cases short of litigation if the delays are unreasonable.
15
http://www.dhs.gov/ynews/releases/pr_1265049379725.shtm. (last visited 2/25/2010). In its press release, DHS Secretary
Janet Napolitano stated that: “Our proposed budget is designed to ensure we have the resources we need to secure America.”
“We are committed to strong fiscal discipline, eliminating redundancy and investing our resources in what works while enhancing security across the board,” said Secretary Napolitano.
16
The Privacy Act of 1974, 5 U.S.C. § 552a, Pub. L. No. 93-579.
17
75 Fed. Reg. 9238 (Mar. 1, 2010)
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For example, since the 2009 Christmas Day incident on an international flight bound for Detroit, where a
18
passenger attempted to set off an explosive device, the U.S. Transportation Security Administration (TSA)
has instituted various additional security directives and, among others, requires additional airport security
screening for citizens and nationals of 14 countries: Afghanistan, Algeria, Cuba, Iran, Iraq, Lebanon, Libya,
Nigeria, Pakistan, Saudi Arabia, Somalia, Sudan, Syria, and Yemen. Individuals from these countries should
19
expect heightened scrutiny at U.S. embassies and consulates and at U.S. ports of entry upon arrival.
Employment-Related Situations
The National Prevailing Wage and Helpdesk Center (NPWHC) of the U.S. Department of Labor (DOL)
began accepting electronic requests for prevailing wage determinations (PWDs) for the PERM, H-1B, H-1B1,
E-3, and H-2B programs on January 21, 2010. Requests for PWDs must now be submitted through iCERT,
DOL’s on-line application portal. Users will also be able to use the portal to request a redetermination or
withdraw a PWD request. To submit electronic PWD requests, employers and their authorized representatives
will need to be registered as iCERT users. iCERT users will have to specifically activate the prevailing wage
module before they can submit PWD requests electronically. In short, requiring employers to register with the
DOL significantly increases the government’s ability to monitor such applications for potential abuses by
employers, as well as the immigration status of applicants. 20
In addition, there appears to be increased use of E-Verify which is an internet-based system operated by
DHS in partnership with the Social Security Administration. E-Verify allows an employer, using information
reported on an employee’s Form I-9, to determine the eligibility of that employee to work in the United
States. For most employers, the use of E-Verify is voluntary and limited to only determining the employment
eligibility of new hires. 21
One problem, however, is that Social Security Numbers (SSN) in general are not linked to immigration
authorization documents (although E-Verify attempts to do so), and having a valid SSN does not by itself authorize a person to work in the United States. 22 In addition, contrary to popular belief, it is not required to
have a SSN to be authorized to work in United States, since U.S. citizens clearly do not require either permission to be in the United States or to be authorized to work (as long as the person is otherwise eligible under
applicable employment laws). 23 Social Security numbers are not automatically issued at birth, yet Social Security numbers have become a de facto national identification number, although the original purpose of this
number was to track individuals’ accounts within the Social Security program. 24
It should further be noted that DHS appears to be increasing the scope of its use of immigration-related
“lookouts,” such as the so-called “(ACRIMe) System of Records” that was announced on February 24, 2010
(see above). Among other people, this includes “individuals subject to background investigations by a federal
agency for employment and/or national security purposes.” Clearly, a reasonable interpretation of this could
compel a conclusion that ICE will have access to information in systems like E-Verify and iCERT.
18
See, e.g., http://www.cnn.com/2009/TRAVEL/12/25/airliner.firecrackers/index.html.
See, e.g., http://www.tsa.gov/what_we_do/tsnm/general_aviation/security.shtm.
20
See, e.g., http://icert.doleta.gov/.
21
See, e.g., the USCIS web site at: http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/
?vgnextoid=75bce2e261405110VgnVCM1000004718190aRCRD&vgnextchannel=75bce2e261405110VgnVCM100000
4718190aRCRD
22
For example, a valid Social Security number may have been issued to foreign national years ago but his or her employment
authorization may have expired. Thus, the Social Security number may be valid while the employment authorization may not.
23
See, e.g., List A of Form I-9, Employment Eligibility Verification, http://www.uscis.gov/files/form/i-9.pdf, for the list of acceptable documents which establish both identity and employment authorization, and which does not include a Social Security
number.
24
See, e.g., http://en.wikipedia.org/wiki/Social_Security_number#cite_note-0.
19
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IMMIGRATION PRACTICE POINTERS, 2010–11 ED.
Other
In addition to some of the uses listed above, in 2005 Congress passed the so-called REAL ID Act, 25 implementing the 9/11 Commission’s recommendation that the U.S. improve its system for issuing identification documents, such as driver’s licenses. Key measures include the following:
Information and security features that must be incorporated into each card;
Documentation and verification of an applicant’s identity, date of birth, social security number, and legal
presence in the United States;
Checks to ensure that an individual does not hold multiple driver’s licenses in other states; and
Minimum security standards for issuance of licenses and identification cards.
The DHS has endorsed the driver’s licensing provisions of the REAL ID Act, stating among other provisions, that “raising the standards of state-issued identification is an important step toward enhancing national
security.” 26 However, not all states have implemented these provisions and its application has raised various
concerns; 27 even U.S. citizens have had problems renewing driver’s licenses and obtaining passports. As of
April 2, 2008, all 50 states had either applied for extensions of the original May 11, 2008, compliance deadline or received unsolicited extensions. 28 As of October 2009, 25 states had approved either resolutions or
binding legislation not to participate in the program, and with President Obama’s selection of Janet Napolitano (a prominent critic of the program) to head DHS, the future of the law remains uncertain. 29
THE ABCS OF IMMIGRATION AND PASSENGER SCREENING LOOKOUT LISTS
Below is a list of some of the key computerized database systems that utilized by the various government
agencies in screening visa applicants and travelers to the United States. These systems contain names of individuals that are considered inadmissible or a potential security risk due to prior visa denials, criminal convictions or arrests, or suspected terrorist. If a combination of an individual’s name, date of birth, or place of birth
matches (be it an exact or close match) a name in one of these databases, it is considered a “hit” and can lead
to a denial of a visa, refusal of admission, or possible arrest. 30
Advanced Passenger Information System (APIS): The system is maintained by CBP and screens biographical information on all passengers and crew members who arrive in or depart from, or transit through
(fly over) the United States on a covered air or vessel carrier. APIS now also covers private aircraft, rail, and
bus travel in the U.S. An APIS profile includes a complete name, date of birth, gender, country of citizenship,
passport/alien registration number and country of issuance, passport expiration date, country of residence,
status on board the aircraft, vessel, or train, travel document type, United States destination address (for all
private aircraft passengers and crew, and commercial air, rail, and vessel passengers except for U.S. Citizens
and lawful permanent residents), place of birth and address of permanent residence (commercial flight crew
only), pilot certificate number and country of issuance (flight crew only, if applicable) and the Passenger
25
26
REAL ID Act of 2005 (REAL ID), Pub. L. No. 109-13, div. B, 119 Stat. 231, 302–23.
See, e.g., http://www.dhs.gov/files/programs/gc_1200062053842.shtm.
27
See, e.g., article by the National Immigration Law Center (www.nilc.org), Why the REAL ID Act’s Driver’s License Restrictions Are Really Anti-Immigrant (May 2005), at http://www.nilc.org/immspbs/dls/real_id_conf_tp_050605.pdf.
28
See, e.g., http://www.usatoday.com/news/nation/2008-04-02-realid_N.htm.
29
See, e.g., http://www.infoworld.com/d/security-central/obama-will-inherit-real-mess-real-id-528.
30
This includes e.g. the Adam Walsh Child Protection and Safety Act of 2006, (Adam Walsh Act), Pub. L. 109-248. which
prohibits U.S. citizens and lawful permanent residents who have been convicted of any “specified offense against a minor”
from filing a family-based immigrant petition on behalf of any beneficiary (not only children), unless the Secretary of Homeland Security (Secretary) determines, in his sole and unreviewable discretion, that the petitioner poses no risk to the beneficiary. In addition, there have been reports around the country of petitioners being arrested at adjustment interviews if s/he has
outstanding warrants, and also an increase of removal proceedings being instituted against permanent residents with previously
undiscovered criminal records, such as when reentering the United States after foreign travel or while renewing permanent
resident cards or applying for naturalization. In short, immigration practitioners may be well advised to perform some kind of
criminal record search for both petitioners and beneficiaries before filing applications.
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Name Record (PNR) locator number. Information collected in APIS is maintained for a period of no more
than twelve months from the date of collection at which time the data is erased from APIS. 31 Pursuant to a
2005 Final Rule, all commercial inbound and outbound air and sea carriers must submit APIS date for passengers and crew members prior to entry to or departure from the United States. 32
Arrival and Departure Information System (ADIS): A component of US-VISIT that is primarily maintained by CBP but also utilized by U.S. Immigration and Customs Enforcement (ICE).
U.S. Citizenship and Immigration Services: The database contains arrival/departure, biographic, and
biometric indicator information on immigrants and nonimmigrants entering and departing the United States.
One of ADIS’ primary functions is to track nonimmigrant overstays. The ADIS database also contains biographic arrival/departure information on legal permanent residents and naturalized U.S. citizens. ADIS records are retained for 100 years. 33
Consular Lookout and Support System (CLASS): The Department of State’s name checking system for
visa and passport applications. The system is designed to interconnect with all Consular Affairs (CA) automated systems that run name-checks and visa-issuing posts have direct access to the Consular Lookout and
Support System (CLASS). The names of all passport and visa applicants must be checked against the names
in the appropriate CLASS file. 34 The Passport Lookouts and Visa Lookouts are separated to ensure proper
handling and disclosure of information. The Passport Lookouts can be either U.S. persons or foreign nationals, e.g., someone making a false claim to U.S. citizenship. The Visa Lookouts are primarily foreign nationals. 35 Information collected and maintained by CLASS is obtained directly from passport and visa applicants
and enhanced with information collected from DOS lookout lists and external agencies (including the Federal
Bureau of Investigation (FBI), DHS, DEA, Interpol and others). 36 The type of information collected includes
passport applicant name; date of birth; country or place of birth; gender; aliases; passport number; alien registration number; national ID or SSN; and physical description. 37
Deportable Alien Control System (DACS): A computer data base that contains biographic information
about deportable aliens such as name, date and country of birth, United States and foreign addresses. The system also tracks detainees and removal proceeding information such as: file number, charge, amount of bond,
hearing date, case assignment, scheduling date, section(s) of law under which removability is alleged; data
collected to support the ICE position on removability, including information on any violations of law and
conviction information; date, place, and type of last entry into the United States; attorney/representative’s
identification number; family data; and other case-related information. 38
Enforcement Operational Immigration Records/Automated Biometric Identification System
(ENFORCE/IDENT): ENFORCE is the primary administrative case management system for DHS/ICE
while IDENT is the primary repository of biometric information held by DHS for several functions, including, but not limited to: enforcement of civil and criminal laws (including the immigration law); investigations,
inquiries, immigration proceedings; and national security and intelligence activities. 39 Legacy INS originally
established IDENT to identify and track aliens who were repeatedly apprehended trying to re-enter the United
31
73 Fed. Reg. 68435 (Nov. 18, 2008).
70 Fed Reg. 17857 (April 7, 2005).
33
68 Fed. Reg. 69412 (Dec. 12, 2003).
34
9 FAM Appendix D, 200 (7-08-2009).
35
Id.
36
Privacy Impact Assessment: Consular Lookout and Support System (CLASS), Department of State, (December 2008)
www.state.gov/documents/organization/96128.pdf (last visited 2/7/2010; link no longer active).
37
Id.
38
System Notice for Deportable Alien Control System (DACS), JUSTICE/INS-012, http://www.uscis.gov/portal/site/uscis/
menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=7f3ed0676988d010VgnVCM10000048f3d6a1RCRD&vgnext
channel=c54f0ccc1793f010VgnVCM1000000ecd190aRCRD (last visited 2/07/2010). See also Review of U.S. Immigration and
Customs Enforcement’s Detainee Tracking Process, Office of Inspector General, OIG-7-08 (November 2006).
39
71 Fed. Reg. 42603 (July 27, 2006).
32
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States as well as those suspected of criminal activity, had outstanding arrest warrants, or who had been previously deported. 40 ENFORCE and IDENT were essentially integrated into one system, but with the implementation of US-Visit the systems are now operated separately. 41 On February 26, 2010, ICE published an advance notice of amendment of Privacy Act system of record indicating that it was consolidating and updating
the ENFORCE system. The notice stated that ICE is updating the Removable Alien Records System of Records (RARS) and renaming the system DHS/ICE - 011 Immigration and Enforcement Operational Records
System of Records (ENFORCE). 42 The updated system will contain biographic; descriptive (height, weight,
eye and hair color and other unique characteristics like scars or tattoos); historical and other identifying data
including names, aliases, fingerprint identification number, date and place of birth, passport and other travel
document information; nationality, A-Number; Social Security Number; contact information; visa information; and employment, education and criminal history. The categories of individuals covered by the
ENFORCE system including individuals arrested, detained or removed; individuals arrested by ICE for
criminal violations; individuals with a final order of deportation or removal who have failed to depart the
U.S.; parolees; witnesses, associates and relative to a pending immigration matter or investigation; attorneys
representing any of the above category of individuals; persons who post bond for release of ICE detainee;
personnel from other government agencies who assisted or participated in the arrest or investigation of person
in ICE custody; and prisoners of the U.S. Marshals Service held in ICE detention facilities. 43
Integrated Automated Fingerprint Identification System (IAFIS): Maintained by the FBI, Criminal Justice Information Services (CJIS) Division, IAFIS is the largest biometric database in the world, containing the
fingerprints and corresponding criminal history information for more than 55 million subjects in the Criminal
Master File. The system was first implemented in 1999 and is comprised of 10-print fingerprint records. 44 The
interface between IDENT and IAFIS has been a longtime goal of the government but has encountered multiple
delays which served as a catalyst for the development of US-Visit. 45
Treasury Enforcement Communications System (TECS): Originally maintained by the legacy U.S.
Customs Service, Department of Treasury 46 , the system is now maintained by CBP. The system was accessible to several law enforcement agencies and was primarily used for tracking:
(1) Violators or suspected violators of U.S. Customs or related laws (some of whom have been apprehended by Customs officers);
(2) Individuals who are suspected of, or who have been arrested for, thefts from international commerce;
(3) Convicted violators of U.S. Customs and/or drug laws in the United States and foreign countries;
(4) Fugitives with outstanding warrants—Federal or state;
(5) Victims of U.S. customs law violations;
(6) Owners, operators and/or passengers of vehicles, vessels or aircraft traveling across U.S. borders; and
(7) Individuals participating in financial transactions reported under the Bank Secrecy Act. 47
As part of DHS’ ongoing effort to consolidate its databases and focus its activities on preventing future
terrorist attacks against the homeland, CBP established the Border Crossing Information (BCI) which is derived from the TECS system.
40
Status of IDENT/IAFIS Integration, Department of Justice Report No. I-2002-003 (December 7, 2001);
http://www.justice.gov/oig/reports/plus/e0203/back.htm (last visited 2/13/2010).
41
71 Fed. Reg. 42603 (July 27, 2006).
42
75 Fed. Reg. 9238 published on AILA InfoNet at Doc. No. 10022664 (posted February 26, 2010).
43
Id. at 9240-41.
44
Integrated Automated Fingerprint Identification System or IAFIS, http://www.fbi.gov/hq/cjisd/iafis.htm (last visited 2/13/2010).
45
See IDENT/IAFIS Interoperability, Joint Report by DOJ and DHS (September 2005).
46
66 Fed. Reg. 52984, 53029 (October 18, 2001).
47
Id.
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BCI receives and maintains border crossing information on travelers who are admitted or paroled into the
United States. 48 It does not represent a new method of collecting information but draws from various sources,
including: travel documents presented at CBP Ports of Entry; from carriers who submit information in advance
of travel through APIS; from a DHS system that validates a Trusted Traveler Program card, I–551 Permanent
Resident Card, or immigration document; from nonfederal governmental authorities that have issued valid travel
documents approved by DHS such as an Enhanced Driver’s License (EDL); or from another Federal Agency
that has issued a valid travel document, such as Department of State Visa, Passport including Passport Card, or
Border Crossing Card data. 49 The database is comprised of information pertaining to travelers and crew members who arrive in and are admitted/paroled, and, in certain circumstances, depart from (when departure information is available) the United States (including those in transit) which includes: Full name (First, Middle, and
Last); date of birth; travel document type (e.g., passport information, permanent resident card, Trusted Traveler
Program card, etc.), number, issuing country or entity, and expiration date; photograph (where available); country of citizenship; RFID tag number(s) (if land/sea border crossing); date/time of crossing; lane for clearance
processing; location of crossing; secondary examination status; and license plate number (or Vehicle Identification Number (VIN), if no plate exists; only for land border crossings). 50
National Automated Immigration Lookout System (NAILS): This database functioned as the primary
lookout database for use during primary inspection. NAILS (and NAILS II) is essentially a name-based system that was folded in IBIS in 2004. 51 In 2008, DHS provided notice that it was consolidating NAILS into the
TECS system. 52
Nonimmigrant Information System (NIIS): The NIIS system tracks I–94, Arrival/Departure Records and,
for foreign nationals applying for admission under the visa waiver program, the I–94W Nonimmigrant Visa
Waiver Arrival/Departure Form. Separately, Canadian nationals, who travel to the U.S. as tourists or for business, and Mexican nationals, who possess a nonresident alien Mexican Border Crossing Card, are not required
to complete an I–94 upon arrival, but their information is maintained in this system. Additionally, CBP has implemented the Electronic System for Travel Authorization (ESTA) to permit nationals of VWP countries to
submit their biographic and admissibility information online in advance of their travel to the U.S. For purposes
of FOIA requests, no exemption shall be asserted with respect to information maintained in the system that is
collected from a person’s travel documents or submitted by a government computer system in support of a proffered travel document, if that person, or his or her agent, seeks access or amendment of such information. 53
Refugees, Asylum, and Parole System (RAPS): This system contains biographic information collected
for USCIS in its adjudication of Form I-589, Asylum Applications. Adjudicators also use RAPS as part of the
secondary immigration status verification for both the SAVE and E-Verify programs. The information in
RAPS is collected from the contents of an applicant’s Form I-589. 54
TIPOFF: Beginning in 1987, the DOS Bureau of Intelligence and Research began keeping watch list
(lookout) records on known and suspected international terrorists in its “TIPOFF” system. 55 DOS obtained
information for lookout records from intelligence community terrorism-related reports, Visa Viper 56 cables
48
73 Fed. Reg. 43457 (July 25, 2008).
Id.
50
Id. at 43459.
51
DHS, Office of Inspector General Report, “A Review of U.S. Citizenship and Immigration Services’ Alien Security Checks”
OIG-06-06 (November 2005).
52
73 Fed. Reg. 77778 (Dec. 19, 2008).
53
73 Fed. Reg. 77549 (Dec. 19, 2008).
54
Privacy Impact Assessment, “Update for the USCIS Person Centric Query Service Supporting Immigration Status Verifiers
of the USCIS National Security and Records Verification Directorate/Verification Division” (August 13, 2008).
55
“Review of the Terrorist Screening Center (Redacted for Public Release)” Audit Report 05-27, Department of Justice, Office
of the Inspector General (June 2005) http://www.justice.gov/oig/reports/FBI/a0527/chapter2.htm (last visited 2/16/2010).
56
The Visa Viper program is a State Department initiative created after the World Trade Center Bombing in 1993, that requires
Consular Affairs posts and other participating agencies to coordinate the submission of cables providing specifics on known or
suspected terrorists. Id.
49
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generated by consular officers stationed abroad, law enforcement agencies, and other sources. In September
2003, the new Terrorist Threat Integration Center (TTIC) assumed the responsibility for establishing and
maintaining a single repository for international terrorist information. As a result, the State Department transferred the TIPOFF system to TTIC as a foundation for the new system. 57 Prior to the move to TTIC, the
TIPOFF database contained the identities of 115,000 known and suspected terrorists. 58
United States Visitor and Immigrant Status Indicator Technology (US-VISIT): This system is quickly
becoming the primary, comprehensive program that monitors all legal entry and exits of visitors (and Lawful
Permanent Residents) into the United States. Since its introduction the US-VISIT Program has been implemented in phases. DHS has been operating US-VISIT entry capability at about 300 air, sea, and land POEs
since 2004 and has conducted evaluations and proof-of-concept experiments relative to a US-VISIT exit program. 59 US-VISIT’s stated goals are to:
Enhance the security of U.S. citizens and visitors;
Facilitate legitimate travel and trade;
Ensure the integrity of the U.S. immigration system; and
Protect the privacy of visitors.
The program achieves these goals by:
Collecting, maintaining, and sharing information on certain foreign nationals who enter and exit the
United States; identifying foreign nationals who (1) have overstayed or violated the terms of their visit; (2)
can receive, extend, or adjust their immigration status; or (3) should be apprehended or detained by law
enforcement officials;
Detecting fraudulent travel documents, verifying visitor identity, and determining visitor admissibility
through the use of biometrics (digital fingerprints and a digital photograph); and;
Facilitating information sharing and coordination within the immigration and border management community.60
The personally identifiable information that is collected, used, disseminated, and maintained for US-VISIT
includes: fingerprint images, full name (i.e., first, last, middle, nickname, and alias), date of birth, place of
birth, citizenship, document identifier (e.g., document type, document number/country of issuance), and gender. 61 According to DHS, every day, 30,000 authorized federal, state and local government users query USVISIT’s data in order to accurately identify people and determine whether they pose a risk to the United
States. 62 The federal agencies utilizing US-VISIT include, DHS, including ICE, CIS, and CBP, Department
of Defense, U.S. Coast Guard, DOS, and the Department of Justice. 63 In December 2008, DHS published a
57
Id.
“The 2003 Annual Report of the United States Intelligence Community” Director of Central Intelligence (July 2004)
https://www.cia.gov/library/reports/archived-reports-1/Ann_Rpt_2003/index.html (last visited 2/16/2010).
59
“Homeland Security, Key US-VISIT Components at Varying Stages of Completion, but Integrated and Reliable Schedule
Needed” United States Government Accountability Office, Report to Congressional Requesters (November 2009) (hereinafter
GAO Report, US-VISIT) at 1. (AILA InfoNet Doc. No. 09111968). Legislation, dating back more than a decade, has provided
a framework for developing and deploying US-VISIT entry and exit capabilities. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, div. C, §110 (Sept. 30, 1996), required the Attorney General
(now DHS Secretary) to develop an automated system to record the departure of every foreign national from the United States
and then match it to the individual’s arrival record. Subsequently, section 2(a) of the Immigration and Naturalization Service
Data Management Improvement Act (DMIA) of 20004 (8 USC §1365a) amended the original entry-exit provisions of IIRIRA
and required the Attorney General to implement an integrated entry and exit data system for foreign nationals.
60
GAO Report, US-VISIT at 2 -3.
61
“Privacy Impact Assessment for the United States Visitor and Immigrant Status Indicator Technology (US-VISIT) Program,
Comprehensive Exit Program: Air Exit Pilot, Department of Homeland Security” (May 20, 2009) published on AILA InfoNet
at Doc. No. 09061131. (posted June 11, 2009).
62
http://www.dhs.gov/files/programs/gc_1214422497220.shtm (last visited on 2/21/2010).
63
Id.
58
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final rule expanding the program to nearly all “aliens,” including lawful permanent residents with exceptions
to include Canadian citizens seeking short-term admission for business or pleasure under B visas and individuals traveling on A and G visas. 64
Going forward, the two primary phases for implementation are: (1) Unique Identity and (2) Comprehensive Exit. Unique Identity seeks to establish a single identity for all individuals encountered across the immigration and border mission areas. It strives to fully implement the capture of 10-print identification at all ports
of entry, integrate the biometric and biographical data within IDENT and FBI’s fingerprint identification system (IAFIS) with individuals encountered by immigration and border management agencies and to enable
DHS and FBI to share biometric and related biographic, criminal history, and immigration history data. 65
The second, and perhaps the more challenging phase, is Comprehensive Exit. This phase was chartered in
August 2007 to develop and deploy air and sea exit capability and to plan for a land exit solution. In April
2008, DHS issued a Notice of Proposed Rule Making to announce its intent to implement biometric exit verification at air and sea POEs. Under this notice, commercial air and sea carriers would be responsible for developing and deploying the capability to collect the biometrics from departing travelers and transmit them to
DHS. 66 The timeline for the complete implementation of this phase remains in flux pending DHS’ publication
of a final rule. 67
TIPS FOR CHALLENGING AND REMEDIES
Given the overlapping nature of these watch lists, obtaining information referencing a specific individual
can require herculean efforts as well as multiple Freedom of Information Act (FOIA) requests directed to several agencies. Moreover, as these lists are consolidated and consumed into the various terrorism prevention
efforts, the availability of information actually released by the government will be increasingly limited under
the cloak of national defense and law enforcement concerns.
Obtaining information through the Freedom of Information Act and the Privacy Act
The Freedom of Information Act, as amended, generally provides a right to request access to federal agency
records. FOIA also establishes a presumption that records in the possession of agencies and departments of the
Executive Branch of the U. S. Government are accessible to the people, except to the extent the records are protected from disclosure by any of nine exemptions contained in the law or by one of three special law enforcement record exclusions. The Electronic Freedom of Information Act Amendments of 1996 provided that public
records made by request should also be made available by electronic means, if available. 68
The Privacy Act establishes certain controls over what personal information is collected by the federal
government and how it is used. 69 This law guarantees three primary rights:
the right to see records about oneself, subject to the Privacy Act’s exemptions;
the right to amend a nonexempt record if it is inaccurate, irrelevant, untimely, or incomplete; and
the right to sue the government for violations of the statute, such as permitting unauthorized individuals to
read your records.
The access rights under the Privacy Act 70 are held by the individual who is the subject of the records
sought. In addition, the statutory rights protected under the Privacy Act are directed at U.S. Citizens and Law64
73 Fed. Reg. 77473 (December 18, 2008) corrected 74 Fed. Reg. 2837 (January 16, 2009).
GAO Report, US-VISIT at 13–14.
66
73 Fed. Reg. 22065 (Apr. 24, 2008).
67
Through fiscal year 2009, DHS had been appropriated about $2.5 billion for US-VISIT. As of July 2009, the program reported that about $186 million of that amount had been obligated to develop air/sea and land exit solutions since 2002. The
department requested about $356 million for US-VISIT in fiscal year 2010 and was appropriated about $374 million. GAO
Report, US-VISIT at 14–15.
68
Pub. L. No. 104-231, 110 Stat. 3048 (1996).
69
5 USC §552(a).
70
Privacy Act, supra note 16.
65
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ful Permanent Residents. Non-immigrants are not afforded the same level of protection under the Privacy
Act. INA 222(f) specifically exempts records relating to visa issuance and refusals. The Department of State,
(DOS)’ Foreign Affairs Manual expressly instructs its consular officers that visa records and information contained in the visa applicant’s file are exempt from the FOIA provisions. 71
Each agency provides general guidance as to submission of FOIA and Privacy Act requests on their respective websites. Some relevant websites are as follows:
DHS: http://www.dhs.gov/xfoia/editorial_0316.shtm
USCIS: http://www.uscis (search FOIA)
CBP: http://www.cbp.gov/xp/cgov/admin/fl/foia/
ICE: http://www.ice.gov/foia/index.htm
DOS: http://www.state.gov/m/a/ips/
DOL: http://www.dol.gov/dol/foia/
EOIR: http://www.justice.gov/eoir/mainfoia.html
FBI: http://foia.fbi.gov/
RESPONSE TIMES AND PROCESSING PROCEDURES
FOIA
In general, the FOIA requires an agency to respond to FOIA requests within 20 business days after the office that maintains the responsive records receives the request. Within that 20 business day time frame, the
agency will inform the requestor of a determination, the reason for the determination, and the right to appeal
that determination. The 20 day business day response requirement is not necessarily the time frame for releasing responsive documents. 72 The agency is also required to respond to the appeal within 20 business days of
receipt of the appeal and must provide the requestor the provisions for judicial review of that determination. 73
In “unusual circumstances” the agency may extend 20 business day response time frame if it provided notice of the unusual circumstances and a estimate of when the determination would be dispatched. 74 Unusual
circumstances means (1) the need to search for and collect the requested records from field facilities or other
establishments that are separate from the office processing the request; (2) the need to search for, collect, and
appropriately examine a voluminous amount of separate and distinct records which are demanded in a single
request; or (3) the need for consultation, which shall be conducted with all practicable speed, with another
agency having a substantial interest in the determination of the request or among two or more components of
the agency having substantial subject matter interest therein. 75
Each agency must provide in its regulations a process to expedite FOIA requests. Expediting FOIA requests are permitted (1) in cases in which the person requesting the records demonstrates a compelling need;
and (2) in other cases determined by the agency. 76 The compelling need means (1) failure to obtain the record
could reasonable be expected to pose an imminent threat to the life of physical safety of an individual or (2) if
the request is made by a person primarily engaged in disseminating information related to informing the public urgently about actual or alleged Federal Government activity. 77 The USCIS will determine whether a ex-
71
9 FAM §40.4 N3.1-1.
5 USC §552(a)(6)(A)(i).
73
5 USC §552(a)(6)(A)(ii).
74
5 USC §552(a)(6)(B)(i).
75
5USC §552(a)(6)(B)(iii).
76
5 USC §552(a)(6)(E)(i).
77
5 USC §552(a)(6)(E)(v).
72
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pedite request will be granted. If granted the FOIA request will be given priority and will be processed as
soon as practicable. 78
FOIA provides nine exemptions 79 and three exclusions 80 limiting the availability to obtain FOIA records.
However, each agency should attempt to segregate the nonexempt or non-excludable information. Given
these exemptions and exclusions, FOIA requestors may not receive requested materials. If such a denial of
FOIA occurs, the requestor may appeal the decision to the relevant agency. Generally, each agency will have
a separate address for the submission of FOIA appeals.
Once an appeal has been denied, the requestor may proceed to Federal Court if he can first demonstrate
that the requestor has exhausted its administrative remedies. 81 FOIA provides that a non-compliance with its
time limit provisions would equal an exhaustion of administration remedies. However, FOIA requires an
agency to demonstrate extraordinary circumstances and an exercise of due diligence to permit itself additional
time to respond to the FOIA request. 82 However, other options (such as filing a motion for subpoena of
documents if in removal proceedings, or request an inspection of the record of proceedings (ROP) in a petition before USCIS) 83 may, as a practical matter, be the most realistic avenue to obtain information about a
client’s records in a timely manner and also for making a record for appeal if such relevant information is not
produced to the detriment of the client.
PRIVACY ACT
The Privacy Act 84 reflects access rights only to records maintained by the federal government. The Privacy Act permits the individual access to a copy of his records maintained by a federal agency. Access re78
6 CFR §5.5(d)(4).
79
5 USC §552(b):
Exemption One: Classified national defense and foreign relations information.
Exemption Two: Internal agency personnel rules and practices.
Exemption Three: Information that is prohibited from disclosure by another federal law.
Exemption Four: Trade secrets and commercial or financial information obtained from a person that is privileged or confidential.
Exemption Five: Inter-agency or intra-agency memoranda or letters that are protected by legal privileges.
Exemption Six: Personnel, medical, financial, and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Exemption Seven: Certain types of information compiled for law enforcement purposes.
Exemption Eight: Records that are contained in or related to examination, operating, or condition reports prepared by, on
behalf of, or for the use of any agency responsible for the regulation or supervision of financial institutions.
Exemption Nine: Geological and geophysical information and data
In amending the Freedom of Information Act in 1986, Congress created three exclusions to protect sensitive law enforcement
matters under section (c) of the Act. In amending the Freedom of Information Act in 1986, Congress created three exclusions
to protect sensitive law enforcement matters under section (c) of the Act.
80
5 USC §552(c).
(c)(1) Exclusion: Subject of a criminal investigation or proceeding is unaware of the existence of records concerning the
pending investigation or proceeding and disclosure of such records would interfere with the investigation or proceeding.
(c)(2) Exclusion: Informant records maintained by a criminal law enforcement agency and the individual’s status as an informant is not known.
(c)(3) Exclusion: Existence of FBI foreign intelligence, counterintelligence or international terrorism records are classified
fact.
81
S. Burgess, “Access to Federal Government Records Under FOIA”, Immigration Briefings (Dec. 2005).
82
5 USC §552(a)(6)(A).
83
Pursuant to, e.g., 8 CFR §103.2(b), et seq., there are specific rules about what must be included in the ROP and how the ROP
should be managed. For example, section 10.2(e) of the Adjudicator’s Field Manual specifically states that the ROP shall be
made available for review to applicants, petitioners and authorized representatives with G-28s on file. Further, Section 10.3(f)
of the Adjudicator’s Field Manual provides for an opportunity to inspect and rebut any adverse evidence in the ROP prior to
issuance of a “notice of intent to deny” (NOID).
84
Privacy Act, supra note 16.
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flects the ability to review and copy any relevant records. 85 The Privacy Act also requires that the government
maintain accurate, relevant and complete records while providing an individual with the opportunity to correct inaccuracies in their record. 86 Therefore, when seeking records from DHS, a Privacy Act request should
be made directly to the relevant agency that you believe retains the record. For example, subject to exemptions within the Privacy Act, an individual should be able to seek redress for a mistake within the Advanced
Passenger Information System, (APIS), directly with the Privacy Officer for the USCBP.
While the Privacy Act does not protect visitors or aliens of the United States, DHS has established policies
to protect certain personally identifiable information (PII) that is collected, used, maintained, and/or disseminated for these individuals. 87 While the policy did not establish a right to judicial review, DHS through this
memorandum permits visitors and aliens to have access to their PII and the right to amend their records, absent an exemption under the Privacy Act. 88 As a matter of policy, DHS has also extended administrative Privacy Act protections to all individuals where systems of records maintain information. Therefore, the Privacy
Act has been extended beyond U.S. Citizens and Lawful Permanent Residents, to foreign national visitors. 89
Travelers Redress System
In January 16, 2006, DHS Secretary Michael Chertoff and Secretary of State Condolezza Rice jointly announced Secure Borders and Open Doors in the Information Age, 90 which introduced changes in technology,
entry documents, and screening procedures. One of the programs created was the Department of Homeland
Security’s Travel Redress Inquiry Program (DHS TRIP) 91 which became the single point of contact for individuals who had inquiries or were seeking resolution regarding difficulties they experienced during their
travel screening at transportation hubs. The DHS TRIP permits individuals who believed they have been erroneously or continuously referred to additional screening, watch list misidentification issues, and/or delayed
or denied entry in the US to utilize this system to correct the record. DHS TRIP also provides information to
the Secure Flight program which gathers additional passenger data to improve watch list matching. 92 DHS
TRIP provides examples to individuals who may seek resolution through this system. 93
85
5 USC §552(a)(d)(1).
5 USC §552(a).
87
USCIS Memorandum, H.Teufel III, “DHS Privacy Policy Guidance Memorandum, Memorandum Number 2007-1 (as
amended from January 19, 2007),” (Jan. 7, 2009).
88
Id.
89
75 Fed. Reg. 8377, 8380 (February 24, 2010).
90
DHS Fact Sheet: Secure Borders and Open Doors in the Information Age. Released January 17, 2006: http://www.dhs.gov/
xnews/releases/press_release_0838.shtm.
91
DHS TRIP website: http://www.dhs.gov/files/programs/gc_1169673653081.shtm.
92
Intelligence Reform and Terrorism Prevention Act (IRTPA) of 2004.
93
Examples provided by DHS TRIP include:
You feel that you were discriminated against by an officer of the federal government OR an officer of the Department of
Homeland Security based on race, disability, religion, gender, ethnicity or national origin.
You believe the U.S. Government’s record of your personal information is inaccurate or has been misused.
You believe you were unfairly detained during your travel experience or unfairly denied entry into the United States.
You were not able to print a boarding pass from an airline ticketing kiosk or from the Internet as a result of some type
action taken by Homeland Security.
You were denied or delayed boarding.
A ticket agent “called someone” before handing you a boarding pass.
You were told your fingerprints were incorrect or of poor quality.
Your photo did not match the travel document your personal information was incomplete or inaccurate.
You are on the “No Fly List.”
You want to Amend a traveler record because of an overstay as a result of not submitting the required I-94 when exiting
the U.S.
Ensure your biometric record created in US-VISIT is removed from DHS systems.
86
continued
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If the applicant fits into any of these categories, the applicant is permitted to submit a Travelers Redress
request on-line or by mail to the DHS TRIP. Upon submission of the request, DHS TRIP may request additional documents to complete the inquiry process. Once the submission is accepted and in process, DHS TRIP
will provide the applicant with a Redress Control Number to which will enable the application to monitor the
status of the request.
Inquiry processes submitted to DHS TRIP are routed to the appropriate DHS component to resolve the issue presented. The appropriate DHS component will review the request and reach a determination as to the
applicant’s status and the action, if any, to be taken. This status determination is then routed to Secure Flight
which will utilize these results to help prevent future delays for misidentified travelers. 94
DHS TRIP will provide notification to the applicant once their review has been completed. In practice,
DHS TRIP provides very little case specific information regarding the review or actions taken. Generally, the
response received by the applicant will include language regarding the completion of their review of the matter and an indication that in certain cases where a change or correction of the record is warranted, that change
or correction is made. However, there is not indication whether a change or correction on the individuals matter has occurred. So no real notification of a resolution to the issue or issues is provided to the applicant. The
only real method to determine if any changes was been made is to subject yourself to the inspection process.
CONCLUSION
As this article points out, there are numerous databases and watch lists that are employed in various immigration related situations, as well as in travel, employment, and identification situations. Irrespective of constitutional and “Big Brother” concerns, the trend appears to be towards a de facto national identification system, as well as an ever increasing sharing of information primarily driven by “counter-terrorism” and “national security” concerns. It is unclear whether we are worse or better off because of the government’s efforts,
but it is fairly clear that these efforts are impacting not only employers, but almost everyone else, whether a
U.S. citizen, permanent resident, or foreign national.
http://www.dhs.gov/files/programs/gc_1169673653081.shtm
94
Internal summary of DHS TRIP: http://www.tsa.gov/travelers/customer/redress/index.shtm.
Copyright © 2010 American Immigration Lawyers Association