Janice appeared for an interview before a consular officer at the US Embassy in Manila. She was applying for an immigrant visa based on a petition filed by her US citizen daughter, Amelia. When asked whether she violated any law during her prior trips as a visitor to the United States, she answered in the negative. The consular officer denied her the visa. She was told that she misrepresented herself during the interview and on her visa application when she concealed her past trips to the United States. The consular officer had access to information on their database showing that Janice had overstayed her visitor visa a few times.
Janice committed the serious mistake of not being truthful in her immigrant visa application. She would now need a waiver to be able to apply again for the visa.
Her husband, Robert had returned to the Philippines hoping to accompany Janice back to the US. He is a lawful permanent resident having obtained his green card. He returned to the US alone. But upon entering the US after his brief trip to the Philippines, the Customs and Border Protection (CBP) inspector placed Robert on a secondary inspection. He was allowed to enter the United States but he was also issued a Notice to Appear for removal proceedings. The CBP inspector told him that he had a criminal conviction relating to a controlled substance that would render him inadmissible. Robert claims that this criminal case was based on an offense he committed many years back; and, that he had previously traveled to the Philippines and returned many times without any problems. He was taken aback by this CBP action and wished that he did not travel back to the Philippines. He is now facing deportation.
Both Janice and Robert are suffering the consequences of their past violations of immigration and criminal law. Unknown to many, despite attempts to conceal unauthorized stay and criminal records, the US Department of Homeland Security (DHS) has expanded its database system enabling different federal agencies to identify criminals and visa violators. What are these database systems? Who are on the “lookout” list? How can one determine whether his or her name is on the lookout list and if the name was placed erroneously on the list? Is there a way to correct this?
“TNT” hot list
Unlike in the past, the Department of Homeland Security is now able to identify and target for enforcement action those who have overstayed their period of admission and who present a public safety or national security threat. The Immigration and Customs Enforcement, which is the enforcement arm of the DHS, has an office called the Overstay Analysis Unit or the OAU. One of the functions of the OAU is to analyze the biographical entry and exit records stored in a biometric system to support DHS’ ability to identify international travelers who have remained in the United States beyond their authorized periods of admission.
The OAU analyzes and validates two types of nonimmigrant overstay lists: (1) out-of-country overstays and (2) in-country overstays. The first pertains to visitors who stayed beyond their authorized admission period and subsequently departed the country. While the second list refers to visitors who remain in the United States with no evidence of departure or adjustment of status upon expiration of their authorized stay.
The out-of-country overstay violator is identified on this overstay list. The list is used to alert Department of State consular officers and CBP officers of a traveler’s violation before he or she is granted a visa or reentry to the United States.
Access to database
Both the US Embassies’ consular section and the CBP at the port of entry have access to the names on the database collected by other agencies; specifically, the list mentioned above from the US Department of Homeland Security. There are several other database systems being utilized before a visa is issued or prior to entering the United States. Of particular note is the Class system at the consular section. This is a name-checking system designed to interconnect with a consular affairs automated system that runs name checks and visa issuances. The information from the Class is derived from other consular posts and also from the various lookout lists and database of other agencies.
The other system being used is the Enforcement Operational Immigration Records/Automated Biometric Identification System or the Enforce/Ident. This data system includes biometric information on individuals who have any civil, criminal, immigration and national security violations.
Seeking redress
The database or lists being utilized by DHS and other federal agencies is accurate most of the time. Unfortunately, there are individuals on the list who may have been cleared of their offenses or immigration violations and whose relief may not have been noted or updated in the system. If one believes that his or her name was erroneously included in the list, there is a travelers redress process called the DHS-TRIP or the Travel Redress Inquiry Program.
Many times, however, because of serious legal enforcement issues, especially on national security issues, access to one’s record may be denied. If this occurs, an opportunity may be afforded during the immigration hearing or during the immigrant visa application to explain that the ground for removal or denial of visa no longer exists.
In the same way that laws change, enforcement of laws are also constantly changing with better technology. It is no longer a safe assumption to think that since one has gotten away with violations in the past, then one will already be immune from the consequences of such violations in the future. Nowadays, technology provides easier accumulation and access to records. With or without our knowledge, with or without our consent, good or bad, information about everyone is digitized. Once it is in the digital world, such information becomes public and readily accessible.
(Atty. Lourdes Tancinco may be reached at law@tancinco.com or at 7211963, or visit her web site at www.tancinco.com)