Duke Law School

Civil Liberties Online

Border Control: Modifying Laws Related to Immigration and Border Protection

The USA PATRIOT Act expands the government’s powers to conduct surveillance, suppress dissent, and detain and deport non-citizens.  Its effects in the realm of immigration may threaten civil liberties for the groups and individuals involved.  See Arvin Lugay, “In Defense of Internment”: Why Some Americans are More “Equal” than Others, 12 Asian L.J. 209 (2005) (book review) (chastising that the PATRIOT Act subjects non-citizens to harassment and deportation based on frivolous claims). Protection of civil liberties in the face of national security loses some momentum when relating to non-citizens.

Sections 401 - 411 increase the immigration controls on America’s northern border by authorizing more personnel and other administrative tools.  Section 405 requests a report on the feasibility of enhancing the Integrated Automated Fingerprint Identification System (IAFIS) in the United States and abroad.  And section 1008 authorizes a study , no later than ninety days after passage of the Act, on the feasibility of biometric identifier scanning systems, with access to the FBI integrated automated fingerprint identification system, at overseas consular posts and points of entry to the United States.)  More importantly for civil liberties issues, section 403 mandates the  Attorney General and the Director of the FBI to “provide the Department of State and the Service access to the criminal history record information contained in the National Crime Information Center’s Interstate Identification Index (NCIC-III), Wanted Persons File, and to any other files maintained by the National Crime Information Center that may be mutually agreed upon by the Attorney General and the agency receiving the access, for the purpose of determining whether or not a visa applicant or applicant for admission has a criminal history record indexed in any such file”.  The provision does not allow for full disclosure of a criminal record, but it does open access to extracts of the record.Subsequently, section 411 expands the term “engage in terrorist activity” as used in the Immigration and Nationality Act, 8 U.S.C. ? 1182 (1952), to include any use of a weapon as well as such nonviolent acts as fund-raising for suspect organizations.  Aliens are denied visas and admission to the United States if their sought entrance into the United States is means to “solely, principally, or incidentally” engage in terrorist activity.  (Similarly, section 1006 mandates that aliens who have participated in money laundering schemes cannot enter the United States.) 

Sections 412-418 enhance the government’s powers to regulate immigration.  For example, section 412 allows the Attorney General to detain suspected terrorists for seven days during which removal or criminal proceedings must be commenced, and such a decision is subject to habeas corpus proceedings.  However, the alien may be detained indefinitely so long as the Attorney General can show, upon reexamination every six months, that the alien’s release would pose a threat to the national security or endanger any or all members of the public.  See Clark v. Martinez, 125 S.Ct. 716 (2005) (upholding the rationale that six months is a reasonable detention period); cf. Zavydvas v. Davis, 533 U.S. 678 (2001) (holding that detention which, in practice, is indefinite violates the Constitution). Section 413 allows the Secretary of State to share about aliens with foreign governments.  Also, Section 416 provides funding to the Student and Exchange Visitor Information System, a system whereby foreign students entering the United States are tracked in an effort to ensure compliance with their educational visa. See Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 8 U.S.C. ? 1372. Critics of the Patriot Act seems to concede that measure such as this one may be considered a reasonable response especially since similar types of tracking systems are in place in other democratic countries. Amitai Etzioni, How Patriotic is the Patriot Act?: Freedom Versus Security in the Age of Terrorism 32 (Routledge 2004).  Finally, section 418 mandates that the Secretary of State review problems of consular shopping and take steps to eradicate it.

Sections 421- 428 ensure that innocent victims of terrorism are not unduly deprived of rightful immigration benefits.  This part of the Act mirrors other sections of the Act that try to alleviate problems arising in the aftermath of terrorist attacks.  Cf. Pierre v. McElroy 200 F. Supp. 2d 251 (S.D.N.Y. 2001) (highlighting the PATRIOT Act’s extension of benefits for those who turned of full age around the time of the September 11th attacks); see also Lavelle v. United States Dep’t of Homeland Sec., 2004 U.S. Dist. LEXIS 18221 (N.D. Cal. 2004) (holding that the PATRIOT Act’s extension of deadlines for immigration applications was inapplicable to certain situations).

PATRIOT Act Provisions

  • Increase the immigration controls on America’s northern border by authorizing more personnel and other administrative tools. (401-411)
  • Expands the term “engage in terrorist activity” to include any use of a weapon as well as such nonviolent acts as fund-raising for suspect organizations. Allows for the detention or removal of non-citizens with little or no judicial review. US Attorney General and Secretary of state can claim a domestic group to be a terrorist organization and deport any non-citizen member. (411)
  • Enhance the government’s powers to regulate immigration by authorizing mandatory detention of suspected terrorists and implementing foreign student monitoring program. (412-418)
  • Appropriated funds so that the Student and Exchange Visitor Information System (SEVIS) could actually become a functional entity after having be passed in 1996 but orphaned without funds since that time. (416)
  • Preserves immigration benefits for victims of terrorism. (421-428)
  • Makes aliens who have participated in money laundering inadmissible for admission into the United States. (1006)
  • Requires that a study be done regarding the feasibility on the use of biometric identifier scanning systems with access to the FBI integrated automated fingerprint identification system at overseas consular posts and points of entry to the United States. (1008)

Other Relevant Provisions

  • Requires visa applicants to be interviewed.  Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No. 108-458, 118 Stat. 3638 (2004).
  • Provides for the deportation of immigrants who have received military training from terrorist organizations. Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No. 108-458, 118 Stat. 3638 (2004).
  • Authorizes10,000 border patrol agents to be added over five years, and unmanned aerial vehicles to be used to monitor the border with Canada. Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No. 108-458, 118 Stat. 3638 (2004).
  • Provides for the deportation of immigrants who have received military training aerial vehicles to be used to monitor the border with Canada. Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No. 108-458, 118 Stat. 3638 (2004).
  • Requires the development of a plan to require all travelers coming into or returning to the United States, including U.S. citizens and citizens from Canada and other western hemisphere countries (the so-called visa-waiver countries) to present a passport or other documents to denote citizenship and identity. Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No. 108-458, 118 Stat. 3638 (2004).
  • Requires a plan to disrupt the production and distribution of fraudulent travel documents.  Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No. 108-458, 118 Stat. 3638 (2004).
  • Accelerates the full implementation of the automated biometric entry-exit program and the integration of that program with all U.S. citizenship and immigration services, homeland security, justice and state department systems. Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No. 108-458, 118 Stat. 3638 (2004).
  • Reinforces immigration control agencies and will help federal officials scrutinize visitors more carefully through a range of measures. Enhanced Border Security and Visa Entry Reform Act of 2002 Pub. L. No. 107-173, 116 Stat. 543 (2002).
  • Extends the deadline for implementing new electronic border control cards -- used mainly for short visits by Mexicans -- from the end of fiscal 2001 to the end of fiscal 2002, among other border related provisions Enhanced Border Security and Visa Entry Reform Act of 2002 Pub. L. No. 107-173, 116 Stat. 543 (2002).
  • Establishes requirements for electronic reporting of foreign student activity, including: 1) arrival in the country, 2) enrollment in a school or exchange program; and 3) any change of school or departure from the program. Enhanced Border Security and Visa Entry Reform Act of 2002 Pub. L. No. 107-173, 116 Stat. 543 (2002).
  • Requires schools to report within 30 days of the start of classes any foreign student's failure to show up. The Senate amendment requires the INS commissioner, as well as the secretaries of Education and State, to conduct reviews every two years of universities and other institutions certified to receive foreign students. Schools that fail to comply with the student visa recordkeeping and reporting requirements could lose the right to accept foreign students. Enhanced Border Security and Visa Entry Reform Act of 2002 Pub. L. No. 107-173, 116 Stat. 543 (2002).
  • Mandates that a temporary student visa control system be in place within four months to serve until the permanent system is implemented. Enhanced Border Security and Visa Entry Reform Act of 2002 Pub. L. No. 107-173, 116 Stat. 543 (2002).
  • Prevents the Department of Security from entering into a border security contract with Accenture Ltd.. Accenture, which does not pay U.S. taxes because it is incorporated in Bermuda. The contract could be worth as much as $10 billion over 10 years. Accenture, which employs many of its workers through U.S.-based subsidiary Accenture LLP, recently won the coveted contract to build a foreign traveler tracking system known as US-VISIT. Department of Homeland Security Appropriations Act, Pub. L. No 108-334, 118 Stat. 1298, (2004)
  • Prohibits the use of funds for fiscal 2005 and all previous years for deployment or implementation, other than on a test basis, of the Computer Assisted Passenger Pre-screening System (CAPPS II) or the Secure Flight program until the GAO certifies that these programs meet certain criteria, including that: 1) a system of due process exists that allows those aviation passengers determined to pose a threat who are delayed or prohibited from boarding their flights, to appeal and correct erroneous information contained in CAPPS II or Secure Flight programs; 2) the error rate of government and private databases used for the programs will not produce large numbers of false positives; 3) the TSA has demonstrated that all search tools in CAPPS II or Secure Flight can be used to determine, accurately predict, and assess those passengers who may constitute a threat; 4) the TSA has established an internal oversight board to monitor the manner in which CAPPS II or Secure Flight are being developed and prepared; 5) sufficient built-in operational safeguards exist to reduce the opportunities for abuse; and 6) substantial security measures are in place to protect CAPPS II or Secure Flight from unauthorized access by hackers or other intruders. Department of Homeland Security Appropriations Act, Pub. L. No 108-334, 118 Stat. 1298, (2004)
  • Delays TSA deployment of a new Computer Assisted Passenger Prescreening System, known as "CAPPS II" -- which would match passengers' names against terrorist watch lists, credit bureau reports and other commercial databases to identify people who might pose a terrorist threat -- until the GAO reports to Congress that the passenger profiling system meets certain privacy and due process requirements. Department of Homeland Security Appropriations Act, 2004 Pub. L. No 108-90, 117 Stat. 1137 (2003).
  • Requires the General Accounting Office (GAO) to report to Congress on the implementation of the Student and Exchange Visitor Information System (SEVIS), including an assessment of problems faced by universities using the system; the need for the detailed information collected; and an analysis of corrective action being taken by the Homeland Security Department to resolve problems in SEVIS. The measure also requires a GAO report for the House and Senate Appropriations committees on the privacy protections in CAPPS II. Department of Homeland Security Appropriations Act, 2004 Pub. L. No 108-90, 117 Stat. 1137 (2003).
  • Appropriates a separate $330 million, outside the accounts of the directorate, for continued development of the U.S. Visitor and Immigration Status Indicator Technology (US VISIT) system. This is a new visa tracking system that will use biometric identifiers in U.S. travel documents. The amount earmarked for US VISIT is $20 million less than in the earlier House-passed version of the bill, which had included funding for the system within the Bureau of Immigration and Customs Enforcement (BICE) account. Department of Homeland Security Appropriations Act, 2004 Pub. L. No 108-90, 117 Stat. 1137 (2003).

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