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Border security five years after 9/11

The US government maintains statistics on many different subjects for its fiscal year that begins on Oct. 1. One interesting statistic is the number of "inspections" that are conducted by US Customs a...

Daniel Joyce

Daniel Joyce

The US government maintains statistics on many different subjects for its fiscal year that begins on Oct. 1. One interesting statistic is the number of “inspections” that are conducted by US Customs and Border Protection (CBP) annually. An inspection can be anything from a lengthy interrogation in secondary inspection, or nothing more than answering a few questions through the car window at the inspections booth. A large number of the inspections relate to entries to the US for which no entry documentation is issued, such as Canadian visitors and US citizens returning to the US.

The numbers are staggering. The numbers for fiscal year 2006 are not yet available, but in fiscal year 2005, there were approximately 417 million inspections performed at US ports of entry – 77% at land border crossings, 20% at airports and 3% at sea ports of entry.

This figure certainly leads one to question a few things. For example, how can one devise a system to admit the appropriate people, deny entry to the appropriate people, and at the same time maintain the flow of commerce and tourism to and from the US? And related to the question, what tools does the government have to quickly immediate security clearance information and identity verification, to allow decisions to be made quickly, often in a matter of seconds? We are all familiar with FAST cards, advance transmission requirements for Customs entries, and supply chain initiatives such as C-TPAT in the transportation industry. But what is being done in a broader sense?

There is no question that careful attention has been given to those issues in the five years following the Sept. 11, 2001 terrorist attacks. In some cases, documentary requirements have been changed to call for immigration and identification documents that provide more information. An example are “machine readable” visas and passports that allow information to be gained by swiping or otherwise reading the information imbedded in the document. The US-VISIT program provides an enrollment procedure for persons issued visas abroad, that allows inspecting officers at the ports of entry to verify that the person entering is the same person to whom the visa was issued.

Most Canadians do not require visas or entry documents for admission to the US. One exception to that rule is Canadian citizens needing waivers to enter the US because of prior criminal offenses or immigration violations. Canadian citizens studying or working temporarily in the US are other examples. These individuals receive an I-94 card (Record of Arrival and Departure) upon admission. Prior to 9/11, the former INS did very little to track these documents or even confirm that the person departed the United States before the expiration date. But that has changed, and Homeland Security does a much better job now of monitoring arrival and departure records.

Canadian and US citizens have always enjoyed the privilege of being both passport-exempt and visa-exempt when travelling back and forth as visitors between the two countries. The flow of millions of people making undocumented entries to the US creates a challenge for Homeland Security. One way of resolving the problem was to remove the passport exemption, and require passports for all US and Canadian citizens entering the US. After some strong objections, the government is considering other approved identification documents as a substitutes for the passport requirement. This program, called the Western Hemisphere Travel Initiative, is scheduled to be fully implemented by Dec. 31, 2007. All persons, regardless of citizenship, will have to produce a passport or other approved identification document to enter the US at land, sea and air ports of entry.

Homeland Security relies on enhanced databases and technology to conduct faster and more thorough screening of people entering the US. Frequent travellers will probably notice that a request for identification is much more common than it was five years ago.

Homeland Security has many tools for background and security clearance. Most people presenting entry documents are screened on the spot by the Interagency Border Inspection System (IBIS), a central system that combines information from multiple government agencies, databases and system interfaces to conduct an almost immediate name check to determine any criminal history or national security risk. IBIS and other similar systems are used to review passenger manifests on flights arriving in the US. Routine name checks are also conducted for certain applicants for visas, green cards and US citizenship. The records contained in the FBI name check process consist of administrative, criminal and other files compiled by law enforcement agencies. An even more thorough criminal history search can be done through an FBI fingerprint check, particularly for a person who is known by one or more aliases that might not come up on a simple name check for the individual. FBI fingerprint checks are required for Canadian waiver applicants and applicants for US green cards and US citizenship, among others.

Homeland Security is a big challenge. The measures implemented and announced over the past five years, have attempted to enhance borders security without compromising the flow of commerce and tourism through the U.S. borders.

– Daniel Joyce is a partner with the Buffalo N.Y. law firm Jaeckle Fleischmann & Mugel LLP. He can be reached at (716) 843-3946.

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