Tracking Overstaying Aliens
By Reuben S. Seguritan
A biometric system that can track individuals who have overstayed their visas is expected to be presented to Congress very soon, according to news reports. The planned system will enable the Department of Homeland Security (DHS) to keep track of when immigrants leave the United States.
The DHS has been working to develop a system that can track immigrants coming into and exiting the United States, using technologies that recognize physical traits and behaviors. An exit system would help identify which individuals have not departed the United States and who have overstayed their visas.
While the enforcement priorities of the current administration are directed to criminal aliens and public safety threats, the government notes that 36 individuals who have been implicated in terrorism-related crimes since 2001 were visa overstays.
The arrest a few months ago of a suspected terrorist who allegedly plotted to bomb the U.S. Capitol building renewed the government’s interest in visa overstays. Amine El Khalifi, a Moroccan native, entered the U.S. on a visitor visa in 1999 and resided here since without a valid visa.
It is estimated that 40% of the country’s undocumented immigrant population entered the U.S. through a port of entry and overstayed their visas, such as tourist visas and student visas. Between 2009 and 2011, about 37,000 overstays were removed from the United States.
In 2011, the DHS undertook a review of 1.6 million cases of visa overstays who came into the country since 2004. Using automated means, the DHS determined that 843,000 already left the United States or changed their immigration status. More than 2,000 cases were recommended for further review, possibly after being flagged as an enforcement priority. For the remaining 757,000, their overstay status was noted in the electronic files in case they become a priority for deportation someday.
The former Immigration and Naturalization Service operated a database that tracked border crossings before 2001, but law enforcement officials had no access to it. Another problem that compounded the overstay situation was the lack of a biometrics collection system prior to 2004. As a result, unless an undocumented immigrant committed a crime, immigration authorities usually found it difficult to locate him/her.
Under the proposed plan, law enforcement authorities would be able to pull up any immigrant’s records and biometric markers. The individual’s immigration status would be one of the things checked if he/she is arrested for any type of offense, whether serious or minor.
In other words, the system could be used to track undocumented immigrants who do not have criminal records and are not public safety threats.
There is therefore a danger that the planned biometric system could become unduly invasive. While the goal of thwarting terrorist attacks is undeniably reasonable, the acts of 36 terrorists are in no way representative of the rest of the undocumented population.
Not only does it have civil liberties implications, but an overreaching system could be an “overkill” and an unwise use of limited resources.
Nevertheless, if an individual is found to have overstayed, it does not mean that he/she would be automatically deported. The enforcement arm of the DHS, the Immigration and Customs Enforcement (ICE), will determine what action is appropriate. As previously discussed in this column, the agency has been directed to use prosecutorial discretion and the action it takes must be in line with the government’s enforcement priorities.
(Editor’s Note: REUBEN S. SEGURITAN has been practicing law for over 30 years. For more information, you may log on to his website at www.seguritan.com or call (212) 695-5281.)
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