Something Good From the Visa Waiver Program?

By Bill West

On this fifth anniversary of the 9/11 attacks, it is reflective of how immigration law enforcement has changed since that fateful day relative to national security and counter-terrorism matters. Pre-9/11, immigration enforcement was a low-key albeit important support component of the Nation’s counter-terrorism arsenal, generally found within the limited investigative elements of the Immigration and Naturalization Service (INS) Special Agents assigned to the Joint Terrorism Task Forces and the reactive border lookout systems found within the INS Inspections Division, systems completely dependent on outside agencies for background and input.

Notwithstanding specific criminal and civil provisions of the Immigration and Nationality Act (INA) dealing with national security and terrorism issues, seemingly an open and shut basis for involving immigration law enforcement personnel in such matters in a substantial way, incredibly, most senior INS managers pre-9/11 viewed such efforts as merely ancillary to what INS was supposed to do. Indeed, even a former INS Commissioner was said to have commented during a staff meeting that counter-terrorism was “FBI work.” It was against that “bury the head in the sand” management perspective that a handful of INS law enforcers around the country, including a few at INS Headquarters at the time, struggled to try to do the right thing.

The 9/11 attacks, of course, dragged the INS (and later its DHS replacement ICE) into the mainstream of counter-terrorism and with it the concept of immigration enforcement being a key component of national security. Controversial as that may be in some left-wing circles, the vast majority of Americans strongly support secure borders and strong immigration law enforcement as part of keeping America safe from terrorist attacks.

Rather amazingly, within the swirling immigration reform debate over the past few years since the 9/11 attacks, the Visa Waiver Program that has been commented about extensively in this Blog by both Mike Cutler and me, has managed to survive intact. That is surely a tribute to the power of commercial enterprise and foreign policy over security concerns. The Visa Waiver Program allows citizens of some 27 countries, mostly Western and Northern European countries, Japan, Australia and New Zealand, to enter the US as temporary visitors for up to 90 days without a visa...with only a valid passport. Reciprocity allows US citizens to enter those countries without a visa.

The program eliminates the visa application process. From a security perspective, this is a disaster. US Consular and security officers are unable to pre-screen foreign travelers as they could via the normal visa issuance process. That extra layer of security protection is stripped away in the Visa Waiver Program. Additionally, when such foreign travelers apply for visas and lie to obtain them, and they subsequently enter the US and get caught for that or other reasons (like being suspected of terrorism activities), the false statements on a visa application make for ready felony criminal prosecution in the US on “sterile” charges that allow for time and detention to make a larger case. The Visa Waiver Program disallows this, since there is no visa application process.

All that said, there is a silver lining within the Visa Waiver Program. Anyone entering the US as a Visa Waiver entrant agrees, by signing a legally binding document, to waive all due process rights in removal (deportation) proceedings should they violate their status while in the United States. This amounts to agreeing to summary deportation if they break immigration law...and, it works if they are caught. Detention, no bond, no hearings, no appeals, quick removal. Actually, it’s the way most Americans believe the deportation system should work in all cases...but, the way it actually works in only a few.

Therein lies a partial answer on this fifth anniversary of the 9/11 attacks to the problem of how to make immigration law enforcement more effective within the counter-terrorism arena. Why it hasn’t happened sooner is surely a mystery surrounded by political enigma. Our political leaders could quite simply extend the Visa Waiver enforcement provisions to all nonimmigrant visa entrants. If this required changing Federal statute, then Congress could so act. If it could be done by a change in the Code of Federal Regulations, all the better.

Essentially, this would mean that all foreign nationals seeking to enter the US as temporary visitors, including those seeking tourist, business or student visas, would need to agree to waive any due process rights in removal proceedings and, as with Visa Waiver entrants, agree to summary removal should they violate their status within the US. If they do not agree to those terms, they would not get the visa. It is likely some die-hard left-wing radicals would object to this, as it conflicts with their vision of extending US Constitutional and civil rights protections to every citizen of every country on the planet. But, so what?

Given that upwards of 40% of the illegal alien population originally entered the US on some form of valid temporary visa, such change in enforcement approach would potentially have a dramatic positive effect on how immigration law enforcers are able to conduct their business. And, since removal (deportation) proceedings are civil in nature, such changes can apply retroactively to violations that occurred before the enactment of the change. Some theoretically heady potential in all that. Even focusing on the smaller population of terror and terror-supporting targets, such a legal change would significantly enhance the abilities and flexibilities of the good guys. This is one of those relatively easy “out of the box” changes that should have been contemplated circa 9/12/01. It is still not too late.

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