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Hearing of the House Committee on the Judiciary - Implementation of an Entry-Exit System: Still Waiting After All These Years


Location: Washington, DC

Successful immigration reform must address effective interior enforcement. An important component of interior enforcement is dealing with legal immigrants who violate the terms of their visas and thus become unlawfully present in the U.S.

The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996 first required the creation, within two years of the date of enactment, an automated system to track the entry and exit of all travelers to and from the United States. Since that time, Congress has reiterated and expanded on this requirement over half a dozen times -- mandating an exit monitoring system at all air, land, and sea ports of entry.

In 2004, Congress added the requirement that the exit program be implemented using biometric technology. Yet despite numerous pieces of legislation enacted by Congress, these statutorily mandated requirements have never been implemented by either present or past administrations.

In the meantime, numerous estimates indicate that as many as 40% of all individuals unlawfully present in the United States entered the country legally and violated the terms of their visas by overstaying. To make matters worse, in July of 2013 the GAO found that DHS has more than 1 million unmatched arrival records - that is, arrival records for which DHS does not have a record of record of departure or status change.

The ability to effectively track who arrives in and subsequently departs from the United States is a necessary first step for immigration reform. An effective exit tracking program must help identify all of those who arrived lawfully but remain in the U.S. in violation of the law.

To compound matters, experts say that terrorist overstays are also a significant issue which under the current system can be tracked down only through difficult, tedious, and time-consuming investigations. Recent reports indicate that terrorist overstays include Hosan Smadi, a Jordanian national who plotted to blow up a Dallas skyscraper in 2009, and Amine El Khalifi, a Moroccan whose visa expired in 1999, and who was arrested in an attempt to bomb the U.S. Capitol in 2012.

Not having an exit system in place led the former commissioners of the 9/11 Commission to conclude in 2011 that "The Department of Homeland Security, properly supported by the Congress, should complete, as quickly as possible, a biometric entry-exit screening system. As important as it is to know when foreign nationals arrive, it is also important to know when they leave. Full deployment of the biometric exit should be a high priority. Such a capability would have assisted law enforcement and intelligence officials in August and September 2001 in conducting a search for two of the 9/11 hijackers that were in the United States on expired visas."

Seventeen years after Congress required an entry-exit system, no exit system is in place. This administration and past administrations had plenty of time to get this done, yet they continue to make excuses as to why it cannot be completed. In fact, this administration has openly violated the law.

DHS has moved to implement biographic exit contrary to law even though former DHS Secretary Janet Napolitano told the GAO she has no confidence in the current biographic data system. Biographic systems are especially vulnerable to fraud.

Unfortunately, not only does the administration continue to ignore statutory mandates, but numerous Congressional proposals actually seek to roll back current law with respect to a biometric exit system at all ports of entry. For example, the Senate bill erodes enforcement mechanisms in current law by requiring biometric exit initially at the "top 10" international airports and a total of only 30 airports within 6 years although there are 74 international airports in the United States and 34 international seaports. The bill does not even address land and sea ports.

It is estimated that the majority of the millions of people who to come to the United States each year come through the land ports of entry and the GAO found that roughly one third of all overstayers came through land ports of entry. No single proposal effectively addresses this issue with the exception of H.R. 2278, the SAFE Act. Mr. Gowdy's bill via Mr. Smith's amendment, contains the only language that requires a biometric entry-exit system at all ports of entry within a definite time period. In order to be effective, any entry-exit provisions must have a definite and prompt time frame for total implementation. If not, we will send the message that Congress is not serious.

The SAFE Act shows how to avoid the mistakes of the past with regard to immigration law enforcement. I look forward to hearing from all of our witnesses today and thank Mr. Gowdy for introducing this game changing legislation and Mr. Smith for his crucial amendment to reassert that Congress is serious about ensuring a fully functioning exit system at all ports of entry.

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