Immigration Reform’s Threat to US Trade

As the 2014 U.S. election season begins to take shape, we’re hearing again about the possibility of immigration reform. The demand for reform is stronger or weaker depending on the latest polls, but, as international traders, we will want to focus for now on Senate Bill 744. Entitled the Border Security, Economic Opportunity, and Immigration Modernization Act, it contains a provision that could change the availability of Customs and Border Protection staffing.

Section 3303 “Directs the Secretary: (1) by December 31, 2015, to establish a mandatory exit data system that shall include data collection from machine-readable visas, passports, and other travel and entry documents for all aliens who are exiting the United States from air and sea ports of entry; (2) not later than 2 years after enactment of this Act, to establish a mandatory biometric exit data system at the 10 U.S. airports that support the highest volume of international air travel; and (3) not later than 6 years after enactment of this Act, to establish a mandatory biometric exit data system at the Core 30 international airports in the United States… Directs the Secretary to implement an interoperable electronic data system to access database information from federal law enforcement agencies and the intelligence community for purposes of visa issuance, admissibility, or deportability.”

Although the bill indicates that appropriations will be made, there is no indication that any real money will be dedicated to this effort or that what is needed to fund and operate the program successfully is being considered. The Senate passed the bill last June. There are about 15 related bills, but each has remained in the chamber into which it was introduced.

In the House, bills have been referred to the Subcommittee on Immigration and Border Security; the Subcommittee on Crime, Terrorism, Homeland Security and Investigations; and the Subcommittee on Border and Maritime Security. Bills in the House and Senate also have been referred to each chamber’s Committee on the Judiciary. Where each proposal is referred depends, of course, on its focus, and the topics have ranged from visa waiver enhancement to detainee rights.

So why focus on S. 744? Well, the answer comes from the language in Section 3303. In particular, assuming the House acts on the bill and it is signed into law, the government must have in place by Dec. 31, 2015, a mandatory exit data system relying on equipment capable of processing machine-readable visas, passports and other travel and entry documents for aliens exiting at sea and airports. Two years later, the mandatory biometric exist system is required at the 10 highest-volume international passenger airports. Four years after that, the system is due to be operational at the top 30 international airports.

But at what cost? As a country, the U.S. certainly should be able to control its borders. At the same time, it’s not clear the equipment exists in a way that could be deployed successfully within the time frames mandated, and even if it does, how many zeros would be on that check?

One vendor of biometric equipment has information on its website touting how seamlessly the passenger process can work relying on iris recognition software. Biometrics also consists of fingerprint scanning, object-detecting capabilities and facial or voice recognition, to name a few more well-known forms.

Although self-service clearly has its place, it’s equally apparent that additional CBP staffing would be needed to operate these exit points, and that cost would come on top of the billions of dollars the equipment itself would cost.

Let’s start with some basics. We’ve all flown into and out of airports, large and small. How big would the scanning equipment be? Who would pay for it? Where would it be located? Who would staff the exit control points? What hours of operation would apply?

Terminals at many airports barely have enough room for TSA personnel. There’s little room in most locations to expand existing arrival areas where incoming passengers are cleared. The responsibility for exit control surely would remain with CBP, so where would its staff be housed? Where would it interact with the traveling public?

Even if many of the basic questions are resolved, our concern as international traders also must focus on where the CBP personnel would come from to staff those control points. Given the austere climate on Capitol Hill, it seems evident CBP will not enjoy large staff increases. The agency already is strained to accomplish its mission with the limited resources at its disposal.

In light of that, ramping up these exit control efforts must mean that existing CBP staff assigned to cargo facilitation would be repositioned to passenger operations. Think about the larger airports near you. If 50 or 60 of the inspectors (for example, and multiply that number by each airport affected) were repositioned to work passenger exit control instead of cargo, the impact would be immediate and seriously slow commercial cargo.

Whatever your thoughts about immigration reform, for these proposals to be meaningful and successful, they must be well thought out and affordable. Sometimes the cost isn’t so obvious, but none of the cost or practicalities has been explained.

Finally, what’s the logic in leaving out exit controls at the land borders? Perhaps it’s as simple as this: It’s an even more complicated challenge than at the airports and seaports.

Susan Kohn Ross is an international trade attorney with Mitchell Silberberg & Knupp in Los Angeles. Contact her at skr@msk.com.

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