Border Security: Inspections Practices, Policies, and Issues
CRS Report for Congress
Inspections Practices, Policies, and Issues
Updated January 19, 2005
Ruth Ellen Wasem, Coordinator,
Jennifer Lake, and Lisa Seghetti
Domestic Social Policy Division
Resources, Sciences, and Industry Division
American Law Division
Congressional Research Service ˜ The Library of Congress
Inspections Practices, Policies, and Issues
The United States now has a unified inspections operation at the borders; a
single inspector is charged with examining people, animals, plants, goods, and cargo
upon entry to the country. The transfer of these functions to the Department of
Homeland Security (DHS) marks a significant policy shift for all of these functions,
clarifying that — although there are important commercial, economic, health,
humanitarian, and immigration responsibilities — ensuring the security of our
borders is the top priority. The decision by DHS officials to further integrate the
inspection duties so that there is “one face at the border” now means that Customs
and Border Protection (CBP) inspectors are essentially interchangeable and
responsible for all primary inspections. A range of legal, administrative, and policy
issues have emerged with unified border inspections. Legislation implementing the
9/11 Commission recommendations — the National Intelligence Reform Act of 2004
(P.L. 108-458) — had various provisions affecting border inspections.
CBP inspectors are charged with enforcing a host of laws. Immigration law
requires the inspection of all aliens who seek entry into the United States, and every
person is inspected to determine citizenship status and admissibility. All goods being
imported into the United States are subject to a customs inspection, but an actual
physical inspection of all goods is not required. There also are laws that subject
animals and plants to border inspections. This report provides a discussion of these
various laws and the procedural differences in what constitutes an “inspection.”
Border inspections conducted each year number in the hundreds of millions.
Prior to the creation of CBP, the Department of Justice’s immigration inspectors did
most passenger inspections — peaking at 534 million in FY2000 — since all foreign
nationals seeking entry into the United States must be inspected. In terms of customs
inspections, approximately 22.6% of rail containers; 5.2% of sea containers; and
15.1% of trucks entering the United States were physically inspected. Unlike
customs and immigration inspections data, animal and plant health inspections data
enumerate only those passengers referred to secondary inspections for the purpose
of an agricultural inspection. There were 44 million animal and plant inspections in
Border inspections are funded through a combination of federal discretionary
appropriations and user fees. In FY2004, CBP was given budget authority of $2,496
million for border security, inspections, and trade facilitation at ports of entry.
Historic funding data for inspections are not comparable across the “legacy” agencies
as the budget data often included activities in addition to the inspection functions.
Some argue that this reorganization of border inspections has been long needed
and is resulting in a more streamlined and efficient set of procedures at the border
with a clear, single, chain of command. Others warn that the different types of
inspections are quite complex in their own right and that the reorganization is
exacerbating the conflicting priorities at the border, ultimately resulting in many
more people and goods being sent to secondary inspections.
Key Policy Staff: Border Inspections
CoordinatorRuth Ellen Wasem7email@example.com
Customs issuesJennifer Lake7firstname.lastname@example.org
Immigration issuesLisa M. Seghetti7email@example.com
Ruth Ellen Wasem7firstname.lastname@example.org
Legal issuesStephen Viña7email@example.com
Plant and animal issuesJames Monke7firstname.lastname@example.org
Overview on Inspections............................................1
Parameters of the Border........................................2
Ports of Entry.............................................2
Authority for Border Inspections..................................4
Policies and Practices at the Border....................................9
Electronic Passenger Manifest...............................13
Differences Between the Northern and Southern Borders..........13
Commercial Import Process.................................15
Cargo Targeting and Inspection..............................16
Passenger Targeting and Inspection...........................20
Differences Between the Northern and Southern Border..........21
Animal and Plant Health Inspections..............................22
Smuggling and Trade Compliance............................24
Difference Between Northern and Southern Borders.............25
Related Policies and Procedures.................................25
Agencies Conducting Agricultural Inspections..................26
Protection Against Communicable Diseases....................28
Cargo and Supply Chain Security............................29
Border Inspection Trends by Ports and Modes of Entry...................29
Immigration Inspections Data...................................30
Land Ports of Entry.......................................31
Air Ports of Entry.........................................32
Inspection of Alien Crew Members...........................34
Cargo Inspections Data........................................34
Cargo Inspections at Airports...............................35
Cargo Inspections at Seaports...............................35
Cargo Inspections at Land Ports.............................35
Animal and Plant Health Data...................................37
Cargo and International Mail................................39
Ships, Aircraft, Vehicles, and Railcars........................39
Budget and Staffing for Inspections...................................40
Animal and Plant Health Functions...............................43
Issues and Concerns...............................................44
Targeting High-Risk Shipments.............................45
Screening Aliens at the Border..............................46
9/11 Commission Recommendations.........................47
The National Intelligence Reform Act of 2004 (P.L. 108-458)......49
Adequacy of Infrastructure..................................49
Inter-Agency and Inter-Department Coordination................50
Training of Personnel......................................51
List of Figures
Figure 1. Passenger Inspections, FY1998-FY2002.......................30
Figure 2. Immigration Inspections: Secondary Referrals and Denials........31
Figure 3. Top Five Busiest Land Ports of Entry by State...................32
Figure 4. Top Five Busiest Immigration Airports of Entry by State..........33
Figure 5. Top Five Busiest Sea Ports of Entry by State...................34
Figure 6. Customs Cargo Processed by Type of Conveyance...............35
Figure 7. Trucks Conveying Cargo, 2000-2002 .........................36
Figure 8. Railcars Conveying Cargo, 2000-2002........................37
Figure 9. Agricultural Inspections, FY1998-FY2002.....................38
Figure 10. Agricultural Inspections by Type of Conveyance...............39
List of Tables
Table 1. Inspections Staff for All Locations, FY2001-FY2004.............40
Table 2. Immigration Inspections Budget..............................41
Table 3. Budget Authority for Customs Commercial Activities.............42
Table 4. APHIS Agricultural Quarantine Inspection: Budget and Staffing....44
Appendix A: Immigration Inspection Workload, FY2002.................56
Appendix B. Selected Immigration Inspections Data.....................57
Appendix C. Top 10 U.S. Container Ports CY1998-CY2002..............58
Appendix D. Customs Workload Data FY1998-FY2002..................59
Appendix E. Customs Narcotics Seizures FY1998-FY2002...............60
Appendix F. U.S.-Canada Land Border: Number of Truck or Railcar
Appendix G. U.S.-Mexico Land Border: Number of Truck or Railcar
Appendix H. Agricultural Inspections of International Passengers, Cargo,
Appendix I. Agricultural Inspections of International Modes of Conveyance..64
Border Security: Inspections Practices,
Policies, and Issues
Overview on Inspections
The United States now has a unified inspections operation at the borders; one
inspector is charged with examining people, animals, plants, goods, and cargo upon
entry to the country. This report delves into border inspections from the perspectives
of the three major types of inspections: immigration, customs, and animal and plant
health. The transfer of these functions to the Department of Homeland Security
(DHS) marks a significant policy shift concerning all of these functions, clarifying
that — although there are important commercial, economic, health, humanitarian,
and immigration responsibilities — ensuring the security of our borders is the top
priority. The decision by DHS officials to further integrate the inspection duties so
that there is “one face at the border” now means that Customs and Border Protection
(CBP) inspectors are essentially interchangeable and responsible for all primary
Laws pertaining to border inspections date back to the earliest days of the
United States federal government, and border inspections historically were organized
along functional responsibilities. The federal authority to assess and collect duties
on goods, wares, and merchandise imported into the country was established by the
second act that the 1st Congress enacted in 1789, and later that year the administrative
apparatus of the U.S. Customs Service was authorized as well. Although Congress’
exclusive role over naturalization and immigration is found in Article 1 of the U.S.
Constitution, the formal inspection of aliens entering the United States came later in
our history. In 1882, Congress enacted a law providing for an examination of all
aliens who arrive in the United States and in 1891 established the Bureau of
Immigration, which later became the Immigration and Naturalization Service (INS).
Laws regarding plant quarantine and inspection date back to 1912.
For many years, the INS and Customs Service inspectors were “cross
designated” so that they could perform initial examinations in each other’s functional
responsibilities. In practice this division of labor reportedly resulted in INS
inspectors being the lead at land ports of entry and Customs Service inspectors being
the lead at air and sea ports of entry. The U.S. Department of Agriculture (USDA)
had always handled the inspection of plants and animals independently.
Today, the Department of Homeland Security (DHS) is charged with overseeing
most of the border inspections functions. The Bureau of Customs and Border
Protection (CBP) includes customs inspectors, immigration inspectors, agricultural
inspectors, and the border patrol. CBP is located in the Directorate of Border and
Transportation Security in DHS.1
Some argue that this reorganization of border inspections has been long needed
and will result in a more streamlined and efficient set of procedures at the border
with a clear, single, chain of command. Others warn that the different types of
inspections are quite complex in their own right and that the reorganization will serve
to exacerbate competing priorities, ultimately resulting in many more people and
goods being sent to secondary inspections.
This report opens with an overview of the parameters of the border, both
physical and legal. It then presents the statutory basis for border inspections in the
three major areas. At the crux of the report is the third section that explains the
policies and procedures for immigration, customs, and agricultural inspections. A
section on trends by ports and modes of entry analyzes the volume and types of
inspections in recent years leading up to the establishment of DHS. The fifth section
of this report summarizes budget and staffing over the past five years for these three
functions. The report concludes with a discussion of the issues and concerns that are
emerging with the implementation of the unified border inspections policies and
Parameters of the Border
Ports of Entry. For the past several years, there have been 317 official ports
of entry (POE) into the United States. At a given port, inspectors may be responsible
for more than one mode of transportation, even processing all three conveyance types
of air, land, and sea. Buffalo and Detroit, for example, have air, sea, and land POEs,
but the likelihood of inspectors having multiple responsibilities are greater at the
smaller POEs. CBP acknowledges that “the merging of agencies into one port of
entry definition is currently a work in progress,” and the POE numbers do not neatly
add up across categories. CBP currently reports that there 216 airports that are
international POEs, 143 seaports, and 115 land POEs. Two locations are inland
Physical Boundaries. The land border with Canada spans 5,525 miles and
is the longest non-militarized border in the world. There are 84 land POEs along the
northern border, which include but are not limited to three in Idaho, 13 in Maine,
three in Michigan, five in Minnesota, 10 in Montana, 12 in New York, 18 in North
Dakota, seven in Vermont, and 12 in Washington. On a daily basis, reportedly over
1 The Homeland Security Act (P.L. 107-296) placed immigration inspections, investigations,
detention, removal, and the border patrol functions into a Bureau of Border Security, kept
the U.S. Customs Service intact, and placed both in the Directorate of Border and
Transportation Security. As it established the Department of Homeland Security in 2003,
the Bush Administration split up the U.S. Customs Service and the proposed Bureau of
Border Security and reconfigured them into two bureaus: one that pertains to border
activities known as Customs and Border Protection, and one that pertains to interior
enforcement known as Immigration and Customs Enforcement.
2 Data provided by CBP Office of Congressional Affairs, in e-mail dated Apr. 22, 2004.
250,000 people enter the United States from Canada. Canada is the single largest
trading partner of the United States, with total merchandise trade (exports and
imports) exceeding $372 billion in 2003. Indeed, the largest trade link in the world
is the Ambassador Bridge (connecting Detroit, Michigan and Windsor, Ontario) that
has more than 7,000 trucks crossing daily transporting goods worth more than $120
billion per year.
The southern land border with Mexico is 1,933 miles across and has 25 land
POEs, which include but are not limited to six in California, six in Arizona, two in
New Mexico, and 11 in Texas. Over 800,000 people arrive from Mexico daily.
Mexico is our second largest trading partner, with total merchandise trade at $220.3
billion in 2003, down from $247.2 billion in 2000 . The POE at Laredo/Nuevo
Laredo reportedly has the highest volume of trade on the southern border.
The coast line of the United States is 12,479 miles long, and there are 143 sea
POEs. Some sea and river POEs are principally commercial ports while others
Legal Boundaries. From a legal perspective, the parameters of the border
for inspection purposes are generally given a flexible reading by courts and often vary3
from the geographical confines mentioned above. “Border searches” may occur
when entry is made by land from the neighboring countries of Mexico or Canada, at
the place where a ship docks in the United States after having been to a foreign port,
and at any airport in the country where international flights first land. Courts have
given the “border” a more flexible reading because of the significant difficulties in
detecting the increasingly mobile smuggler. Aside from searches at the actual
physical border, the law recognizes two legal constructs that allow border searches
to move beyond the geographical confines of the actual port of entry.
Functional Equivalent. Border searches may be conducted within the
interior of the United States. The border search exception extends to those searches
conducted at the “functional equivalent” of the border. The “functional equivalent”
of a border is generally the first practical detention point after a border crossing or
the final port of entry.4 It is justified because in essence, it is no different than a
search conducted at the border and occurs only because of the impossibility of
requiring the subject searched to stop at the physical border. A search occurs at the
border’s functional equivalent when: (1) a reasonable certainty exists that the person
or thing crossed the border; (2) a reasonable certainty exists that there was no change
in the object of the search since it crossed the border; and (3) the search was
conducted as soon as practicable after the border crossing.5 Places such as
international airports within the country and ports within the country’s territorial
3 The term “border search” is a term of art that describes a category of searches generally
recognized as an exception to the Fourth Amendment’s warrant and probable cause
requirements. They are not exempt, however, from the Fourth Amendment’s reasonableness
standard. (See the section “Constitutional Considerations” later in this report).
4 Thirty-First Annual Review of Criminal Procedure; Border Searches, 90 Geo. L.J. 1087,
5 See United States v. Hill, 939 F.2d 934, 936 (11th Cir. 1991).
waters or stations at the intersection of two or more roads extending from the border
exemplify such functional equivalents.6
Extended Border Search. The border search exception may also be
extended to allow warrantless searches beyond the border or its functional equivalent.
Under the “extended border search” doctrine, government officials may conduct a
warrantless search beyond the border or its functional equivalent if (1) the
government officials have reasonable certainty or a “high degree of probability” that
a border was crossed; (2) they also have reasonable certainty that no change in the
object of the search has occurred between the time of the border crossing and the
search; and (3) they have “reasonable suspicion” that criminal activity was
occurring.7 This three-part test ensures that a suspect still has a significant nexus
with a border crossing so that border officials can reasonably base their search on
statutory and constitutional authority and to ensure that the search is reasonable.8
Authority for Border Inspections
While the Homeland Security Act (HSA, P.L. 107-296) transferred the
inspection “functions” of INS and Customs Service to DHS, it did not revise the laws
that authorize these inspections. HSA did specify which laws DHS agricultural
inspectors may utilize to conduct inspections, but it did not alter these underlying
statutes. Consequently, understanding the legal authorities that guided agricultural,
customs and immigration inspections functions before and after their transfer to DHS
becomes increasingly important. At this point, it is unclear whether the “one face at
the border” initiative promoted by DHS will also result in, or perhaps some could
argue even require, the future consolidation of the authorities each legacy agency
Immigration Inspections. The former INS, through the Attorney General
(AG), was responsible for enforcing and administering the Immigration and
Nationality Act of 1952 (INA) (codified as amended at 8 U.S.C. §§1101 et seq.). The
HSA, as modified by the President, transferred administrative authority over
immigration enforcement to the Directorate of Border and Transportation Security.
The HSA effectuated the transfer of immigration authority in statutory language that
is separate and apart from the INA itself.9 According to DHS regulations, all
6 Almeida-Sanchez v. United States, 413 U.S. 266, 272-73 (1973).
7 “Reasonable certainty” in this context has been defined as a standard which requires more
than probable cause, but less than proof beyond a reasonable doubt. United States v.th
Cardenas, 9 F.3d 1139, 1148 (5 Cir. 1993); see, e.g.,United States v. Delgado, 810 F.2dth
480, 482 (5 Cir. 1987). In Delgado, smugglers used a foot-bridge to transfer narcotics to
delivery trucks on a farm near El Paso, Texas. The court upheld an extended border search
conducted on a farm road near and leading from the border but otherwise away from the
official border checkpoint.
8 United States v. Teng Yang, 286 F.3d. 940, 946 (7th Cir. 2002).
9 For example, §402 of the HSA makes the Under Secretary of the Directorate of Border and
Transportation Security responsible for “carrying out the immigration enforcement functions
authorities and functions of the DHS to administer and enforce the immigration laws
are now vested in the Secretary of DHS or his delegate.10 The Attorney General,
however, retains concurrent authority in many key areas of immigration law.
Immigration officials possess a wide variety of enforcement mechanisms to
carry out their mission of enforcing the INA. Immigration enforcement activities
generally include providing border security and management; conducting inspections
of persons at U.S. international ports; enforcing immigration law; detaining and
removing aliens found in violation of immigration and related laws; and providing
immigration intelligence. Under 8 U.S.C. §1225(a)(3), all aliens who are applicants
for admission or are seeking entrance or readmittance to or transit through the United
States shall be inspected by “immigration officers.” If the immigration officer is
satisfied that the applicant is entitled to enter, the officer admits the applicant, though
his decision may not be final and the applicant may be subject to other inspections.
In the event an alien is “not clearly and beyond a doubt”11 entitled to be admitted or
further inquiry is required, the applicant may be detained pending a final
determination of admissibility by an immigration judge. 8 U.S.C. §1225(d) allows
immigration officers to board any vessel, aircraft, railway car, or other conveyance
in which an immigration officer believes aliens are being brought into the United
The term “immigration officer” is statutorily defined in the INA to mean any
employee or class of employees of the INS or of the United States designated by the
Attorney General, individually or by regulation, to perform the functions of an
immigration officer specified by the INA.12 DHS, however, has implemented
regulations clarifying the meaning of “immigration officer” with respect to DHS
personnel. The regulation (8 C.F.R. §103.1(b)) designates various categories of CBP
and ICE officials as immigration officers authorized to exercise the powers and
duties of such officers as specified by the INA and applicable regulations. The
regulation also allows the Secretary of DHS to designate other employees of DHS or
of the United States as immigration officers.
Section 1357 of Title 8 of the U.S. Code gives any officer or employee of the
Service authorized under regulation prescribed by the AG the authority to, without
a warrant, interrogate aliens, make arrests, conduct searches, board vessels, and
administer oaths. For example, 8 U.S.C. §1357(a)(2) authorizes an officer or
vested by statute in, or performed by the Commissioner of Immigration and Naturalization”
(or any officer, employee, or component of the INS).
10 8 C.F.R. §2.1 (“The Secretary, in his discretion, may delegate any such authority or
function to any official, officer, or employee of the DHS or any employee of the United
States to the extent authorized by law.”) This regulation was authorized, in part, by §103
of the INA, which was amended by the HSA to charge the Secretary of DHS with the
administration and enforcement of the INA. There is still some question, however, as to the
extent to which the Attorney General has concurrent authority.
11 8 U.S.C. §1225(b)(2)(A).
12 8 U.S.C. §1101(a)(18).
employee of the INS to arrest without a warrant any alien who in his presence is
entering or attempting to enter the United States in violation of U.S. law regulating
the admission, exclusion, expulsion, or removal of aliens. Section 1357(a)(3), among
other things, authorizes an officer or employee of the INS, without warrant and
within a reasonable distance from any external boundary of the United States,13 to
board and search for aliens any vessel within the territorial waters of the United
States and any railway car, aircraft, conveyance, or vehicle. Sections 1357(a)(4) and
(5) authorize officers or employees of the INS to make certain felony arrests. Under
8 U.S.C. §1357(c), officers or employees of the INS are authorized to search without
a warrant any person (and their effects) seeking entrance into the United States for
evidence which may lead to the individual’s exclusion from the country if the officer
possesses reasonable cause to suspect that grounds exist to deny admission to the
United States under the INA. 8 C.F.R. §287.5 designates the DHS officers or
employees who are authorized to carry out the various law enforcement activities
listed in §1357.
Customs Inspections. Formerly located in the Department of the Treasury,
customs inspectors enforced a number of laws to: ensure all imports and exports
comply with U.S. laws and regulations; collect and protect U.S. revenues; and guard
against the smuggling of contraband.14 The HSA transferred generally all customs
functions (except for certain revenue functions) to the DHS in §403. Customs border
activities are now conducted through the CBP and interior enforcement activities are
carried out by ICE officers.
Congress has provided customs with a significant amount of authority to inspect
people and merchandise at ports of entry. Federal authority to assess and collect
duties on goods, wares, and merchandise imported into the country was established
in 1789. Additional authority for customs inspections was passed in 186615 but16
generally derives from the Tariff Act of 1930. Courts have interpreted 19 U.S.C.
13 Under current regulations the authority to search any vehicle may be exercised within 100
air miles of the border (8 C.F.R. §287.1(a)). INS officers on roving patrol within this 100
mile radius may not stop a vehicle unless they have a “reasonable suspicion” that a
particular vehicle contains aliens who may be illegally in the United States. See United
States v. Brignoni-Ponce, 422 U.S. 873 (1975).
14 The primary laws customs enforces are 18 U.S.C. §541 (entry of goods falsely classified);
18 U.S.C. §542 (entry of goods by means of false statements); 18 U.S.C. §545 (smuggling
goods into the U.S.); 18 U.S.C. §§981-982 (property forfeiture); 18 U.S.C. §§1956-1957
(money laundering); 18 U.S.C. §§2319-2320 (intellectual property rights); 15 U.S.C.
§§1121-1127 (trademarks); Title 17 of the U.S.C. (copyrights); Title 19 of the U.S.C.
(customs laws); Title 35 of the U.S.C. (patents).
15 Act of July 18, 1866, ch. 201, §3, 14 Stat. 178 (codified as amended at 19 U.S.C. §482).
16 Act of June 17, 1930, ch. 497, 46 Stat. 590 (see §§461, 467, 496, 581, 582) (codified as
amended at 19 U.S.C. §§1461, 1467, 1496, 1581 and 1582, respectively).
§1581(a) as granting customs inspectors broad authority to conduct border searches.17
Section 1581(a) states:
Any officer of the customs may at any time go on board of any vessel or vehicle
at any place in the United States or within the customs waters or ... at any other
authorized place ... and examine the manifest and other documents and papers
and examine, inspect, and search the vessel or vehicle and every part thereof and
any person, trunk, package, or cargo on board, and to this end may hail and stop
such vessel or vehicle, and use all necessary force to compel compliance.
Under 19 U.S.C. §1461, customs officers may inspect all merchandise and baggage
imported or brought in from any contiguous country at the first port of entry the
merchandise or baggage arrives. 19 U.S.C. §1467 provides customs officers with
authority to inspect and search persons, baggage, and merchandise discharged or
unloaded from a vessel that arrives in the United States or Virgin Islands (whether
directly or via another port or place in the United States or Virgin Islands) from a
foreign port, place or Territory or possession of the United States. Congress has
granted customs the authority, under 19 U.S.C. §1496, to search the baggage of
persons arriving in the United States in order to ascertain what articles are contained
therein and whether such articles are subject to duty or prohibited.
Pursuant to 19 U.S.C. §482, Congress has empowered customs to “stop, search,
and examine” any “vehicle, beast, or person” upon which an officer suspects there
is merchandise which is subject to duty or introduced to the United States contrary
to law. Moreover, a customs officer may search any trunk or envelope wherever
found, in which the officer has a reasonable belief to suspect there is merchandise
imported contrary to law. Finally, under §482, a customs officer may seize and
secure for trial any merchandise found on any inspected vehicle, beast, or person, or
in any inspected trunk or envelope, which the officer has reasonable cause to believe
is subject to duty or was introduced unlawfully.
Additionally, an officer of customs is authorized to search and conduct
document and safety inspections of any vessel or vehicle inside the United States,18
within customs waters, or in any other authorized place. Customs officials
generally may not search on the high seas;19 however, officers of the Coast Guard,
17 See, e.g., United States v. Sutter, 2003 U.S. App. LEXIS 17660 at 5 (9th Cir. Aug. 25,
2003); United States v. Molina-Tarazon, 279 F.3d 709, 712 (9th Cir. 2002); United States
v. 1903 Obscene Magazines, 907 F.2d 1338, 1341 (2d Cir. 1990); United States v. Glasser,
18 Customs waters are defined as “the waters within four leagues of the coast of the United
States.” 19 U.S.C. §1401(j) (approximately 12 miles). Customs waters may also be
expanded by treaty or “other arrangement.”; See, e.g., United States v. Loalza-Vasquez, 735th
F.2d 153, 157 (5 Cir. 1984) (customs waters expanded by arrangement with Panamanian
19 See, e.g., United States v. Gonzalez, 875 F.2d 875, 879-80 (D.C. Cir. 1989) (19 U.S.C.
§1581(a) does not per se authorize all high seas searches by Customs). Customs may pursue
a fleeing vessel beyond customs waters if the vessel was originally stopped within customsth
waters. See, e.g., United States v. Berriel-Ochoa, 740 F.2d 883, 884 (11 Cir. 1984) (upheld
according to 19 U.S.C. §1401(i), are deemed to be customs officers20 and may
conduct inspections on the high seas.21 In order to carry out the various inspection
provisions, 19 U.S.C. §1582 allows the Secretary of the Treasury to prescribe
regulations for the search of persons and baggage. Title 19, Part 162 of the Code of
Federal Regulations describes the inspection, search, and seizure procedures for
customs and makes all persons coming into the United States from foreign countries
liable to detention and search by authorized officers of the government under such
The law, however, makes clear that a customs inspection is not required of every
piece of merchandise, goods or cargo brought into the United States, though there are
reporting requirements. In terms of the entry examination for imported merchandise,
the statute states that the Customs Service “shall inspect a sufficient number of
shipments, and shall examine a sufficient number of entries, to ensure compliance
with the laws enforced by the Customs Service.”22
Agriculture Inspections. Agriculture inspectors play an integral part in the
Department of Agriculture’s role in supplying a safe and affordable food supply. In
part, the Department of Agriculture’s Animal and Plant Health Inspection Service
(APHIS) was responsible for enforcing the laws that protect and promote U.S.
agricultural health from agricultural pests and diseases by conducting inspections at
various ports of entry. Under the HSA, the Secretary of Agriculture’s import and
entry inspection activities (which are conducted through APHIS) relating to the laws
specified below have been transferred to the DHS.23 The Under Secretary for Border
and Transportation Security is responsible for conducting agricultural inspections at
ports of entry in accordance with the regulations, policies, and procedures issued by24
the Secretary of Agriculture for the following Acts:
!The Virus-Serum-Toxin Act (21 U.S.C. §§151 et seq.);
!The Honeybee Act (7 U.S.C. §§281 et seq.);
!Title III of the Federal Seed Act (7 U.S.C. §§1581 et seq.);
stop of vessel in customs waters and pursuit two miles beyond customs waters).
20 See 14 U.S.C. §143; 19 U.S.C. §1401(i) (“The term ‘officer of the customs’ and ‘customs
officer’ mean any officer of the Bureau of Customs of the Treasury Department or any
commission, warrant, or petty officer of the Coast Guard....”).
21 14 U.S.C. §89(a) states:
The Coast Guard may make inquires, examinations, inspections, searches,
seizures, and arrests upon the high seas and waters upon which the United States
has jurisdiction.... For such purposes, commissioned, warrant, and petty officers
may at any time go on board any vessel ... address inquiries to those on board,
examine the ship’s documents and papers, and examine, inspect, and search the
vessel and use all necessary force to compel compliance.
22 19 U.S.C. §1499(a)(1)(D).
23 P.L. 107-296 §§402(7), 421.
24 Ibid., at §421(d)(2). Quarantine activities did not accompany the transferred statutes.
!The Plant Protection Act (7 U.S.C. §§7701 et seq.);
!The Animal Health Protection Act (7 U.S.C. §§8301 et seq.);
!The Lacey Act Amendments of 1981 (16 U.S.C. §§3371 et seq.);
!Section 11 of the Endangered Species Act of 1973 (16 U.S.C.
As the previous list demonstrates, agriculture inspectors are responsible for
enforcing various animal and plant protection laws. In some cases, agriculture
inspectors have the authority to conduct warrantless searches of any person or
conveyance entering the country in furtherance of those laws. For instance, under the
Plant Protection Act and the Animal Health Protection Act, agriculture inspectors
have the authority to conduct warrantless searches of any person or vehicle entering
the United States to determine whether the person is carrying any plant or animal in
violation of the statute.25 Agriculture inspectors also have the authority under the
Lacey Act to detain for inspection any vessel, vehicle, aircraft, or any package, crate,
or other container upon the arrival of such conveyance or container in the United
States from any point outside the United States.26 The Endangered Species Act also
allows agriculture inspectors to detain for inspection any package, crate, or other
container and all accompanying documents, upon importation.27
Policies and Practices at the Border
Although the HSA reorganized the administration of border inspections, it did
not make significant changes in the policies and practices at the border. Most of the
statutory revisions of the inspection process that were aimed at antiterrorism and
border security were in place prior to the establishment of CBP. In part a response
to the 1993 World Trade Center bombing, Congress had already strengthened the
anti-terrorism provisions in the INA and enacted provisions that shifted immigration
inspectors from the “services” role to the “enforcement” role.28 In 1996, Congress29
first required the entry-exit system that is now known as US-VISIT. In 2000 and
compact framework. After the September 11, 2001 terrorist attacks, Congress
enacted further measures aimed at improving immigration inspectors’ terrorist
25 See 7 U.S.C. §7731(b)(1) (plants); 7 U.S.C. §8307(b)(1) (animals).
26 16 U.S.C. §3375.
27 Ibid., at §1540.
28 Previously immigration inspectors who identified an alien lacking proper documents
would refer them to other INS officers who handled the enforcement of the INA and
immigration judges in the Executive Office for Immigration Review. Illegal Immigration
Reform and Immigrant Responsibility Act (IIRIRA) of 1996 (P.L. 104-208) and the
Antiterrorism and Effective Death Penalty Act (P.L. 104-132).
29 §110 of IIRIRA.
30 Plant Protection Act (P.L. 106-224, June 2000, 7 USC 7701 et seq.), and the Animal
Health Protection Act (Title X of P.L. 107-171, May 2002, 7 USC 8301 et seq.).
detection capabilities.31 Congress also included antiterrorism provisions in
legislation reauthorizing the U.S. Customs Service in 2002.32 CBP inspectors now
are tasked with more effectively accomplishing the laws and policies of the legacy
Primary Purpose. Having a visa or other form of travel document does not
guarantee admission into the United States. The INA requires the inspection of all33
aliens who seek entry into the United States; and in some cases allows for
preinspection when departing a foreign country on route to the United States.34 The
purpose of the inspection is to determine the admissibility of a traveler to the United
States.35 Section 287 of the INA enumerates the following authorities for
immigration officers, including immigration inspectors:
!to question, under oath any person seeking to enter the United States
in order to determine admissibility and,
!to search, without warrant, the person and belongings of any
applicant seeking admission.36
In addition to conducting inspections, immigration inspectors enforce various
criminal and administrative statutes, apprehend violators, and adjudicate a variety of
applications for various immigration benefits. Later in this report, Appendix A
presents a sample of the immigration inspector’s workload.
Primary Inspections. Primary inspection, the first level of inspection,
consists of a brief interview with an immigration inspector, a cursory check of the
traveler’s documents and a query of the Interagency Border Inspection System37
(IBIS). Primary inspections are quick (usually lasting no longer than a minute);
31 Enhanced Border Security and Visa Reform Act (P.L. 107-173).
32 Title 3, Chapter 4, of the Trade Act of 2002 (P.L. 107-210).
33 §235(3) of the INA.
34 Section 123 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(IIRIRA; P.L. 104-208) amended §235 of the INA by requiring the Attorney General to
establish preinspection stations in at least five foreign airports that are identified as being
one of ten foreign airports that serve as the last point of departure for the greatest number
of inadmissible aliens. There are currently 15 foreign airports that participate in the
35 For a full discussion of alien screening and admissibility, see CRS Report RL31512, Visa
Issuances: Policy, Issues, and Legislation, by Ruth Ellen Wasem, pp. 7-10. See also CRS
Report RL32480, Immigration Consequences of Criminal Activity, by Michael John Garcia;
and CRS Report RL32564, Immigration: Terrorist Grounds for Exclusion of Aliens, by
Michael John Garcia and Ruth Ellen Wasem.
36 §287(b)(c) of the INA.
37 IBIS is a broad system that interfaces with the FBI’s National Crime Information Center
however, if the inspector is suspicious that the traveler may be inadmissible under the
INA or in violation of other U.S. laws, the traveler is referred to a secondary
inspection.38 At 115 airports and 14 seaports, many nonimmigrants are entered into
the new US-VISIT system that uses biometric identification (finger scans) to check
identity and track presence in the United States.39
Secondary Inspections. During secondary inspections, travelers are
questioned extensively and travel documents are further examined. Several40
immigration databases are queried as well, including lookout databases. The
majority of travelers, however, are not subject to a secondary inspection. As Figure
2 later in this report depicts, on average less than one percent of all travelers were
subjected to secondary inspections between FY1998 and FY2002.
In addition to an inspector denying entry, an alien can withdraw his application
for admission in some cases.41 Immigration inspectors take the following factors into
consideration when determining if an alien should be permitted to withdraw his
!“the seriousness of the immigration violation;
!previous findings of inadmissibility against the alien;
(NCIC), the Treasury Department’s Enforcement and Communications System (TECS II),
the former INS’s National Automated Immigration Lookout System (NAILS) and Non-
immigrant Information System (NIIS) and the Department of State’s (DOS) Consular
Consolidated Database (CCD), Consular Lookout And Support System (CLASS) and
TIPOFF terrorist databases. Because of the numerous systems and databases that interface
with IBIS, the system is able to obtain such information as whether an alien is admissible,
an alien’s criminal information, and whether an alien is wanted by law enforcement.
38 The grounds for inadmissibility are spelled out in §212(a) of INA. These grounds are:
health-related grounds (e.g., contagious diseases); criminal history; security and terrorist
concerns; public charge (e.g., indigence); seeking to work without proper labor certification;
illegal entrants and immigration law violations; ineligible for citizenship; and aliens
39 The INA actually requires that all aliens be recorded into the entry-exit system, but US-
VISIT currently includes only nonimmigrants. For a full discussion of US-VISIT, see CRS
Report RL32234, U.S. Visitor and Immigrant Status Indicator Technology Program (US-
VISIT), by Lisa M. Seghetti and Stephen Viña.
40 The Terrorist Screening Center (TSC) is developing a consolidated lookout database that
is not yet fully operational. For more on lookout and terrorist screening databases of the
TSC, see CRS Report RL32366, Terrorist Identification, Screening, and Tracking Under
Homeland Security Presidential Directive 6, by William J. Krouse. The National Security
Entry-Exit Registry System (NSEERS) and the Student and Exchange Visitor Information
System (SEVIS) are also used during secondary inspections. For more on NSEERS, see
CRS Report RL31570, Immigration: Alien Registration, by Andorra Bruno. For more on
SEVIS, see CRS Report RL32188, Monitoring Foreign Students in the United States: The
Student and Exchange Visitor Information System (SEVIS), by Alison Siskin.
41 §302(a) of IIRIRA amended §235 of the INA to allow the Attorney General to use his
discretion in permitting an alien to “withdraw his application for admission and depart
immediately from the United States.”
!intent on the part of the alien to violate the law;
!ability to easily overcome the ground of inadmissibility (i.e., lack of
!age or poor health of the alien; and
!other humanitarian or public interest considerations.”42
Although not as frequently used, allowing an alien to withdraw his application for
admission permits the alien to apply for reentry at some later point without being
penalized. Congressional Research Service’s (CRS) examination of INS’
Performance Analysis System (PAS) data reveals that prior to the terrorist attacks,
immigration officials were allowing over 60% of inadmissible aliens to withdraw
their application for admission. In the years following the terrorist attacks, however,
that figure dropped to 37% in FY2001 and 34% in FY2002 (see Appendix B).
Expedited Removal. In 1996, Congress enacted the expedited removal
policy.43 The goal of these provisions was to target the perceived abuses of the
asylum process by restricting the hearing, review, and appeal process for aliens at the
port of entry. As a result, if an immigration inspector at the port of entry finds that
an alien has arrived without proper documentation, the officer can deny admission
and order the alien summarily removed from the United States. Those in expedited
removal who claim a legal right to reside in the United States based on citizenship,
legal permanent residence, asylee or refugee status are to be provided with additional
procedural protections, rather than being immediately returned. Aliens whose visas
have been revoked by Department of State are subject to expedited removal. The
expedited removal provisions provide very limited circumstances for administrative
and judicial review of those aliens who are summarily excluded or removed.44
Deferred Inspections. In a small percentage of cases, usually occurring in
connection with arrivals by aircraft, the inspection process can be deferred and the
individual referred to an immigration office in the area in which the individual will
be residing. Less than 20,000 travelers were referred to deferred inspections each
year, from FY1998 through FY2002. Deferred inspections occur when an immediate
decision regarding admissibility cannot be made at the port of entry and the alien
does not appear to be in blatant violation of admissibility laws. Such cases may
involve the review of incomplete documents.
Departure Control. Departure control is an inspection of travelers departing
Guam, Puerto Rico and the U.S. Virgin Islands who are en route to the continental
United States. It also applies to crew members en route to the United States.45
Departure control provides an added level of security to the inspection process
42 Charles Gordon, Stanley Mailman, and Stephen Yale-Loehr, “Immigration Law and
Procedure,” Admission, Parole, Removal: Authority of Immigration Officers, vol. 5, pp.
43 The IIRIRA provisions amended §235 of the INA.
44 For further discussions of expedited removal, see CRS Report RL32621, U.S. Immigration
Policy on Asylum Seekers, by Ruth Ellen Wasem.
45 §215, §231(b) and §251(c) of the INA.
because for those cases where the national interest may be at stake, immigration
officials can prevent the departure of persons to the United States.
Electronic Passenger Manifest. Several provisions in law enacted after
the September 11, 2001 terrorist attacks sought to provide a greater level of border
security by requiring airline carriers to provide the Attorney General with electronic46
passenger manifests before arriving in or departing from the United States.
Passenger manifests are transmitted to immigration officials through the Advance
Passenger Information System (APIS). APIS was created in 1988, cooperatively with
the former U.S. Customs Service, the former INS, and the airline industry, and it is
integrated with IBIS. The submission of the passenger manifests electronically prior
to arrival allows immigration officials to perform inspections on travelers in advance
of their arrival. Additionally, necessitated by concerns with respect to security, the
Enhanced Border Security and Visa Entry Reform Act of 2002 (P.L. 107-173)
repealed a provision that required airport inspections be completed within 45 minutes
Automated Inspections. The former INS had a series of programs
collectively referred to as Passenger Accelerated Service System (PortPASS) that
were transferred to the CBP. PortPASS programs ease commuter traffic at land ports
of entry by providing dedicated commuter lanes to facilitate the speedy passage of
low-risk, frequent travelers. Although enrollees in PortPASS are precleared for
inspection purposes (i.e., they do not need to interact with immigration or customs’
inspectors at the border), they are subject to random cursory searches. Although
more commonly seen at land ports of entry,48 A PortPASS program, the INS
Passenger Accelerated Service System (INSPASS), is also used at selected
international airports. INSPASS applicants must enter the United States on certain
nonimmigrant visas49 or under the Visa Waiver Program.50 The number of travelers
who took advantage of automated inspections has risen over recent years, peaking at
Differences Between the Northern and Southern Borders. The
principal difference between the Northern and Southern borders from an immigration
inspections perspective is the documentary requirements. Mexicans are required to
have the proper immigration documents. A special Mexican “laser visa” (formerly
known as the Mexican Border Crossing Card) is used by citizens of Mexico to gain
short-term entry (up to six months) for business or tourism into the United States.
It may be used for multiple entries and is good for at least 10 years. Mexican citizens
46 §402 of P.L. 107-173 and §115 of P.L. 107-71.
47 §403 of P.L. 107-173.
48 For example, the Secure Electronic Network for Travelers’ Rapid Inspection (SENTRI)
at several southwest land ports of entry and NEXUS at several northern ports of entry.
49 B-1 (visitor for business), E-1 (treaty trader), E-2 (treaty investor) or L-1 (intra-company
50 For a complete description of all PortPASS programs, see (archived) CRS Report
RS21335, The Immigration and Naturalization Service’s Passenger Accelerated Service
System, by Lisa M. Seghetti.
can get a laser visa from the Department of State (DOS) Bureau of Consular Affairs
if they are otherwise admissible as B-1 (business) or B-2 (tourism) nonimmigrants.
Canadians, on the other hand, are waived from the documentary requirements.51
These waivers, including the passport requirement, may be made on the basis of
unforeseen emergency in individual cases, on the basis of reciprocity with respect to
nationals of foreign contiguous territory, and for other reasons specified in the law.
Canadian citizens, except after a visit outside the Western Hemisphere, and
American Indians born in Canada having at least 50% American Indian blood, are
among those who currently are waived from the documentary requirements for
In the past, the southwest border received more resources than its northern
border counterpart as a result of a multi-year border patrol strategy that was
implemented in 1994. The border patrol strategy was aimed at strengthening
enforcement of United States immigration laws and placed an emphasis on
decreasing the number of illegal immigrants coming into the United States by
increasing controls at the nation’s borders. Although the resources were primarily
directed at strengthening the border patrol along the southwest border, southwest
ports of entry also have received additional resources aimed at increasing the number
of immigration inspectors. The terrorist attacks, however, brought attention to the
northern border, which has historically been understaffed and lacked the necessary
infrastructure to adequately screen individuals seeking entry into the United States.
Several pieces of legislation passed in the 107th Congress authorized and appropriated
funding for additional staffing and resources along the northern border.53
Primary Purpose. Customs inspections aim at ensuring the efficient flow of
legitimate cross-border traffic while simultaneously preventing the entry of54
illegitimate goods or people into the United States They play a major role in federal
51 The Canadian exception to the documentary requirements is based upon provisions in INA
[found in §212(d)(4)(A)] that permit the Attorney General, acting jointly with the Secretary
of State, to waive either or both requirements of §212(a)(7)(B)(i). Since the Homeland
Security Act (P.L. 107-296) transferred most immigration-related functions from
Department of Justice (DOJ) to DHS, it is assumed that the Attorney General’s authority for
this provision now rests with the Secretary of DHS.
52 On Jan. 31, 2003, the Administration issued interim regulations that require passports and
visas for nationals of 54 countries living in Canada and Bermuda previously not required
to present a passport or nonimmigrant visa. The affected aliens are nationals of British
Commonwealth countries and Ireland who are permanent residents of Canada or Bermuda.
Federal Register, vol. 68, no. 21, Jan. 31, 2003, pp. 5190-5194. See CRS Congressional
Distribution Memorandum, Waiving the Documentary Requirements for Visas and
Passports to Enter the United States, by Ruth Ellen Wasem and Andorra Bruno, Oct. 27,
53 See CRS Report RS21258, Border Security: U.S. — Canada Immigration Border Issues,
by Lisa M. Seghetti.
54 Laws enforced by Customs associated with criminal violations include the following: 18
efforts to interdict terrorists and their weapons; illegal drugs; and other contraband
being smuggled into the United States. Customs inspections monitor goods being
imported into the United States, including collection of duties and tariffs. Customs
inspections also involve U.S. export law, in part, by interdicting the export of
unreported currency from narcotics trafficking and other illicit activities; preventing
international terrorist groups and rogue nations from obtaining sensitive and
controlled commodities; and interdicting stolen vehicles and other stolen property.
The challenge faced by CBP is to achieve a sufficient level of security while not
jeopardizing the efficient flow of commercial trade at the border. Given this
framework it is important to understand that customs inspections serve two different,
yet intertwined purposes: border security; and commercial entry.
Commercial Import Process. Generally, imported goods may not legally
enter the commerce of the United States until CBP has authorized delivery of the
goods. The commercial import process can be described as a series of steps: entry,
inspection, appraisement, and classification and liquidation. For the purposes of this
report only the entry and inspection steps will be discussed.
Importers or their agents are required to file entry documentation with CBP for
each importation, regardless of whether duty must be paid on the merchandise. To
expedite clearance of their goods, importers often file entry documents electronically
and pay surety bonds before the merchandise arrives at the port of entry. Most
importers choose to hire customs brokers to transact their customs-related business.
Entry documents include proper bills of lading, entry forms, invoices, and evidence
of the right to make entry. Importers or their agents must file entry documentation
within five working days of the arrival of a shipment at the port of entry. Importers
must then file an entry summary and deposit estimated duties within 10 working days
of the time the goods are entered and released by CBP.
Upon arrival at a port of entry, the goods are considered ‘imported’ and are
examined by CBP inspectors for admissibility before being released from CBP
custody. CBP inspectors are required to examine a sufficient number of shipments
and entries of merchandise to determine whether:
!the merchandise is properly marked to denote country of origin or
other special designations required by law;
!the merchandise or shipment contains prohibited articles;
!the merchandise or goods in the shipment are properly described on
!an excess or shortage of invoiced merchandise or goods exists; and
!duty is owed on the imported merchandise or goods.
U.S.C. 541, entry of goods falsely classified; 18 U.S.C. 542, entry of goods by means of
false statements; 18 U.S.C. 545, smuggling goods into the U.S.; 18 U.S.C. 981-982,
forfeiture; 18 U.S.C. 1956-1957, money laundering; 18 U.S.C. 2319-2320, intellectual
property rights; 15 U.S.C. 1121-1127, trademarks; 17 U.S.C., copyrights; 19 U.S.C.,
customs laws; 35 U.S.C., patents.
Following examination, CBP typically releases the goods to the importer, usually
under bond to cover potentially unpaid duties, taxes and other charges. The amount
of duty owed is determined by tariff classification and valuation of the goods. In a
process known as liquidation, CBP inspectors make a final calculation of the
importer’s liability (duties and charges owed).
CBP inspectors rely on targeting mechanisms and random inspections to
conduct their inspection operations. CBP uses preclearance,55 primary inspections,
and secondary inspections in order to help identify those passengers and cargo
considered high-risk from a customs perspective.
Cargo Targeting and Inspection. Customs-related business is increasingly
conducted electronically. Entry documents are often filed electronically through the
Automated Broker Interface (ABI). ABI is a part of the Automated Commercial
System (ACS) used by Customs to track, control, and process all commercial goods
imported into the United States56 ABI is a voluntary program available to brokers,
importers, carriers, port authorities, and independent service centers, that allows
qualified participants to file import data electronically with CBP. According to CBP,57
over 96% of all entries are filed through ABI. The carrier or the shipper (airline,
vessel operating company, trucking company, etc.) must also file manifest
information with the director of the port where the cargo is entering the United
States. The importer or broker uses ABI to file the entry documents, and the carrier
or shipper uses the Automated Manifest System (AMS) to file manifest information.
There are several variations or components of AMS: Sea or Vessel AMS, Air AMS,
and Rail AMS. There is a varying level of automation with each system. The most
automated mode is the Vessel AMS, the least automated being the truck system,58
which does not have a separate AMS module in ACS. Once the manifest and the
entry documents are filed, they are matched up by ACS.59
55 Passenger pre-clearance is a process by which aircraft passengers and crew are sent
through Customs inspection at the departure airport, rather than at the arrival airport in the
United States. Customs conducts pre-clearance operations at Canadian airports in Calgary,
Edmonton, Montreal, Ottawa, Toronto, Vancouver, and Winnipeg; in the Bahamas at
airports in Freeport, and Nassau; in Bermuda; and Aruba. [http://www.cbp.gov/
56 The Customs Service, and now CBP, has been engaged in a long-term effort to develop
a new automated system to process all commercial goods imported into the United States.
The new system, known as the Automated Commercial Environment (ACE), is being
developed to replace ACS.
57 Bureau of Customs and Border Protection, “Automated Broker Interface (ABI) and
Contact Information,” which is available at [http://www.cbp.gov/xp/cgov/import/
operations_support/automated_sys tems /acs/acs_abi_contact_info.xml].
58 There will be a Truck Manifest Module in the ACE system, and until its development
carriers and importers will continue to use the Free and Secure Trade (FAST), Border
Release Advanced Screening and Selectivity (BRASS) program, and the Pre-Arrivals
Processing System (PAPS).
59 U.S. Congress, House Committee on Government Reform, Subcommittee on Criminal
Justice, Drug Policy, and Human Resources, Federal Law Enforcement at the Borders and
A risk assessment system is employed to focus customs inspections on high risk
shipments. The Automated Targeting System (ATS) automatically flags the
shipments deemed to be the highest risks. ATS standardizes bill of lading and entry
summary data received from ACS and creates integrated records called “shipments.”
These shipments are then evaluated and scored by ATS using weighted rules derived
from the targeting methods of experienced personnel. The higher the score, the more
attention the shipment requires, and the greater the chance it will be targeted for
secondary inspection. ATS sorts through records stored in a database containing
detailed information on every shipment that has entered the United States in the past
10 years. According to CBP, all national security related targeting using ATS is done
at CBP’s National Targeting Center (NTC). When a high risk shipment is flagged
by the NTC, this information (flag) is sent out to the field terminals so that when an
inspector at the border pulls up information on the shipment the flag is displayed and
the inspector will target the shipment for further inspection or review.
Customs inspections are dependent on accurate manifest information arriving
in a timely manner in order to execute the risk assessment and targeting procedures
before shipments reach the border. To give inspectors adequate information and time
to perform a risk assessment on cargo shipments, legacy Customs published a rule
(known as the 24-hour rule)60 requiring the submission of certain manifest
information to Customs 24-hours in advance of the vessel cargo being laden at the
foreign port. The Trade Act of 2002 (P.L. 107-210), as amended by the Maritime
Transportation Security Act of 2002 (P.L. 107-295), required CBP to develop rules
requiring the electronic submission of cargo manifest data. These new rules were
published in their final version December 5, 2003.61 The new advanced electronic
manifest rules will require the electronic submission of cargo manifest data according
to the following time frames:
!Vessel — 24 hours prior to lading in the foreign port;
!Air — ‘wheels up’ or four hours prior to departure for the United
States (depending upon where the flight originated);
!Rail — two hours prior to arrival in the United States;
!Truck — one hour prior to arrival for shipments entered through
PAPS or ABI, and 30 minutes prior to arrival for shipments entered
While the enforcement of these regulations is currently rolling out in phases, the
intent is that every advance manifest will be run through the ATS at the NTC before
each shipment reaches a U.S. port of entry.
Ports of Entry, (Washington, July 2002), p. 41.
60 U.S. Department of the Treasury, “Presentation of Vessel Cargo Declaration to Customs
Before Cargo is Laden Aboard Vessel at Foreign Port for Transport to the United States,”
Federal Register, vol. 67, no. 211, Oct. 31, 2002, pp. 66318-66333.
61 Department of Homeland Security, Bureau of Customs and Border Protection, “Required
Advance Presentation of Cargo Information; Proposed Rule,” Federal Register, vol. 68, no.
Modal Differences. While the commercial import process is relatively
uniform in terms of documentary requirements, differences in the level of automation
in the AMS system lead to differences across the modes of transportation depending
upon whether the shipment is arriving by truck, railcar or by vessel. As mentioned
above, the air, sea, and rail AMS modules are well automated, and thus targeting and
commercial processing has been conducted electronically through the process
Truck cargo entry is the least automated of all the modes and many truck drivers
must present CBP inspectors at the border with paper entry documents as they arrive
at the inspection booths. The CBP inspector reviews these documents, questions the
driver, and decides whether or not to direct the truck to secondary inspection. The
CBP inspector will collect any owed duties and release the cargo into the United
States if he is satisfied with the documentation.
ABI is functional at the land border for truck entry, and thus importers or
customs brokers can electronically pre-file entry documentation for truck shipments.
Because there is no truck AMS module, however, most truck carriers do not file
manifest information electronically. Automated line release programs do exist at the
northern and southern borders. For example, the Border Release Advanced
Selectivity System (BRASS) allows drivers to present a pre-assigned bar code, along
with the invoice and manifest. The CBP inspector scans the bar code, verifies that
the information matches the invoice data, enters the quantity and releases the cargo.
The release data is then submitted to ACS which establishes an entry and the entry
summary requirements, and notifies the ABI participant of the release.
As part of the Customs-Trade Partnership Against Terrorism (C-TPAT, which
is discussed later in this report) and Canada’s Partners in Protection programs, the
United States and Canada launched a bilateral initiative known as Free and Secure
Trade (FAST) to establish complimentary import/export processes. Under FAST,
both countries are working to harmonize their inspection and commercial operations
at the border. Expanding upon earlier initiatives that allow for the electronic
submission of entry documents and, thus, result in expedited cargo releases, the
FAST program allows major importers and their carriers to use dedicated inspection
lanes. The electronic cargo release system currently employed as part of FAST is the
National Customs Automated Prototype (NCAP). As a module of the ACS, the Pre
Arrival Processing System (PAPS) has been developed to replace NCAP and was
brought online in FY2003. PAPS interacts with the Border Cargo Selectivity
program and the ATS to randomly select cargoes for examination to check for
The security of cargo containers loaded onto U.S.-bound vessels has been of62
significant concern. To begin addressing this concern, the Container Security
Initiative (CSI) was initiated by the former U.S. Customs Service in January of 2002
to “prevent global containerized cargo from being exploited by terrorists.” CSI is one
of a series of initiatives aimed at securing the supply chain. The rationale behind CSI
62 For more information see CRS Report RL31733, Port and Maritime Security:
Background and Issues for Congress, by John F. Frittelli.
is that finding a nuclear weapon or a radiological “dirty bomb” at a U.S. port could
be too late. CSI is based around four core elements: developing criteria to identify
high-risk containers; pre-screening high-risk containers at the earliest possible point
in the supply chain; using technology to pre-screen high risk containers quickly; and
developing and using smart and secure containers. Under the CSI program, CBP
officers are sent to participating ports where they collaborate with host country
customs officers to identify and pre-screen high-risk containers using non-intrusive
inspection technology before the containers are laden on U.S. bound ships. CBP has
initially targeted CSI on the top 20 high-volume ports that account for nearly 70% of
all containers shipped to U.S. seaports. As of September 2003, governments
representing 19 of these 20 ports had signed agreements to implement CSI; and CSI
had actually been implemented in 16.63
Physical Inspection of Cargo. Cargo shipments may be targeted or
randomly selected for a secondary inspection for both security and trade compliance
purposes. This secondary inspection could involve: a more detailed document
check; passing the container through a radiation portal monitor; taking an x-ray or
gamma ray image of the contents of the container; and/or the physical unloading and64
examination of the cargo itself.
CBP has deployed a number of non-intrusive inspection (NII) technologies at
ports of entry to assist customs inspectors with the inspection of cargos. Large scale
NII technologies include a number of x-ray and gamma ray systems. The Vehicle
and Cargo Inspection Systems (VACIS), which uses gamma rays to produce an
image of the contents of a container for review by the CBP inspector, can be
deployed in a mobile or stationary capacity depending upon the needs of the port.
CBP has also deployed a rail VACIS system to screen railcars. Other large scale NII
systems include truck x-ray systems, which like the VACIS can be deployed in either
a stationary or mobile configuration; the Mobile Sea Container Examinations
Systems; and the Pallet Gamma Ray System. CBP is also continuing to deploy
nuclear and radiological detection equipment including personal radiation detectors,
radiation portal monitors, and radiation isotope identifiers to ports of entry.
According to recent CBP figures, in FY2003, NII technology was used at ports of
entry to conduct more than 4.8 million examinations, which resulted in 2,19065
seizures totaling more than 1.1 million pounds of narcotics.
Various canine teams are also deployed at ports of entry to assist in the
inspection of cargo and passengers. CBP uses canine teams trained to detect several
types of contraband including narcotics, explosives, chemicals, and currency.
63 Remarks of Commissioner Robert C. Bonner, Customs and Border Protection, made at the
Heritage Foundation, Sept. 9, 2003, [http://cbp.gov/xp/cgov/newsroom/commissioner/
64 Testimony of Stephen E. Flynn, Council on Foreign Relations, House Hearing on A
Review to Assess Progress with the Bureau of Customs and Border Protection’s Targeting
Program for Sea Cargo, Subcommittee on Oversight, Investigations, Committee on Energy
and Commerce, Mar. 31, 2004.
65 Customs and Border Protection, Performance and Annual Report Fiscal Year 2003
(Washington, 2003), p.20
Passenger Targeting and Inspection. Customs passenger inspection is
concerned with collecting duties on imported items brought into the country along
with preventing the entry of contraband. A typical Customs primary inspection
consists of an interview in which individuals may be asked about their citizenship,
their trip, and about any goods they may be bringing into the country that they did not
have when they departed. Individuals entering the United States via land border
crossing are required to make a verbal declaration. Individuals arriving in the United
States by air or sea are required to fill out a Customs declaration form. These forms
are usually provided by the airline or the cruise ship. The Customs declaration form
requires individuals to provide certain personal information (e.g., name, date of birth,
place and country of residence, passport information) and information about the
nature of the trip (countries visited, airline or cruise ship information, nature of the
trip: business or pleasure). The Customs declaration form also requires information
concerning goods an individual is bringing into the country. Duty may be assessed
on the value of goods exceeding personal exemption limits. The primary inspection
for individuals arriving by air or sea will include a review of the Customs declaration
as a part of the interview process. Based upon the results of the primary inspection,
some individuals may be referred to secondary inspection.
Customs inspections are based upon a number of factors (e.g., behavioral
analysis, observational techniques, inconsistencies, intelligence information, canine
units, x-ray machines, and incidence of a seizure or arrest) to determine which66
individuals should be targeted for more intensive scrutiny. The secondary
inspection could involve a more thorough interview and review of identification and
travel documents, baggage inspections, and under prescribed circumstances personal
Customs inspection currently relies on the Advance Passenger Information
System (APIS) to screen passenger and crewmember lists prior to their arrival in or
departure from the U.S, if they are arriving by air or sea. At the land border, where
Customs inspections do not have advance passenger information, CBP has deployed
license plate readers to assist them in targeting vehicles and their passengers for67
additional inspection. For example, when a passenger vehicle approaches a land
border port of entry, license plate readers automatically locate, read and communicate
vehicle license plate data to the Treasury Enforcement Communication System
(TECS) and the National Crime Information Center (NCIC) for possible record68
matches. The primary inspectors at the port of entry receive instantaneous
responses from TECS. As of September 2003, CBP had installed 201 inbound and
66 U.S. Treasury Department, Office of Inspector General, Trade and Passenger Processing:
Customs Personal Search Policies, Procedures, and Training Appear Reasonable, OIG-CA-
67 Customs and Border Protection, Performance and Annual Report Fiscal Year 2003
(Washington, 2003), p.32.
68 Ibid., p. 33.
50 outbound license plate readers on the southern border; and 104 inbound license
plate readers on the northern border.69
Smuggling. The primary mission of CBP is to prevent terrorists and terrorist
weapons from entering the country. However, other components of CBP’s mission
include interdicting other prohibited items such as illegal drugs, ammunition,
firearms, and counterfeit goods; and monitoring trade compliance. Theoretically,
every person or conveyance crossing the border presents an opportunity for
smuggling. The statistics in Appendix C illustrate the aggregate size of the so-called
“smuggling window of opportunity.” Appendix D provides data on Customs
narcotics seizures from FY1997-FY2002. In addition, during FY2002 Customs
officers made 12,570 arrests, and seized 6.4 million rounds of ammunition, nearly 40
thousand firearms, 7.5 million tablets of the drug “ecstasy,” over $1.3 million worth
of merchandise, and more than $60 million in counterfeit goods.
Differences Between the Northern and Southern Border. Operational
differences between Customs inspections on the northern and southern borders arise
due to several factors. One is simply the nature of the cross-border traffic that
predominates at ports of entry along each border. The ports of entry on the southern
border must deal with a significantly greater amount of pedestrian and personal
vehicle traffic than the northern border; while the northern border contends with
considerably more commercial traffic than does the southern border. Appendices
E and F in this report illustrate these differences. For example, the total number of
personally operated vehicles entering the United States crossing the southern and
northern borders for Calendar Year (CY) 2002 was nearly 122.3 million. Of this
total 89.8 million, or 73% entered across the southern border, while 32.5 million or
27% entered across the northern border. Of the 11.3 million freight truck crossings
in CY2002, 6.9 million or 61% entered across the northern border, while 4.4 million,
or 39% entered across the southern border. Of the 2.4 million rail freight crossings,
Operational differences at the northern and southern borders are also caused by
different levels of progress that have been made on the bilateral agreements between
the United States and Canada and the United States and Mexico. October 2, 2003,
a progress report was issued on the United States-Canada Smart Border Declaration
(signed December 12, 2001). FAST is a joint program for low-risk companies that
allows for the expedited movement of shipments across the northern border in both
directions. The United States-Canada Smart Border Declaration also includes other
efforts to harmonize commercial processing, conduct clearance operations away from
the border, develop joint facilities, share customs data, improve container targeting
at seaports, address infrastructure improvements, and develop intelligent
transportation systems, among others.
On March 22, 2002 President Bush and President Fox of Mexico met and
endorsed the United States-Mexico Border Partnership accord that was signed by
Santiago Creel, Secretary of Governance, and Colin Powell, Secretary of State. The
accord was accompanied by a 22-point action plan that included several customs-
related items similar to those contained in the United States-Canada Smart Border
Declaration. On April 23, 2003, the Department of Homeland Security issued a joint
statement on progress achieved on the United States-Mexico Border Partnership.70
Three working groups have been created to develop and implement initiatives
identified in the 22-point plan: the Border Working Group, the Enforcement
Working Group, and the Technology and Customs Procedures Working Group.
Another indicator of progress in cooperation is that as of September 2003, FAST has
become operational at one commercial crossing along the southern border (El Paso).
Animal and Plant Health Inspections
Primary Purpose. Animal and plant health inspection contributes to national
security by preventing the entry of exotic plant and animal pests and diseases. Such
pests and diseases pose a potential threat to domestic agricultural production,
particularly in the fruit, vegetable and livestock sectors. Traditionally, these
inspections have dealt with all possible threats, regardless of whether they are
deliberately or accidentally introduced. Since September 11, 2001, and the anthrax
incidents, more attention has been given to preventing entry of agricultural pests and
diseases that might be used as bioterrorism or agroterrorism agents against U.S.
agricultural and natural resources.
Agricultural inspection occurs at U.S. borders, ports of entry, inland sites, and
off-shore locations. Inspections cover passengers arriving by vehicle, airplane, and
ship, cargo and international mail, and commercial aircraft, vessels, trucks, and
railcars. Inspection methods include human sensory examination, X-ray, and detector
dog inspection, along with examination of documents accompanying incoming cargo
to assure compliance with health and trade agreements. Some agricultural items may
be allowed to enter from certain countries but not others. These determinations are
based on scientific risk assessments which are updated regularly using currently
Forbidden fruits and vegetables may harbor a range of invasive plant diseases
and pests. For example, oranges from certain foreign locations can introduce
diseases like citrus canker or pests like the Mediterranean fruit fly. Similarly,
sausages and other meat products from many countries can contain animal disease
organisms that can live for many months and even survive processing. Meat scraps
from meals on foreign ships and airplanes could contaminate domestic livestock feed
sources if not properly disposed of. Foot and mouth disease (FMD), a debilitating
livestock disease, can be transmitted on footwear or clothing if passengers passed
through FMD-affected areas. Outbreaks of plant and animal diseases can cost
millions of dollars to eradicate, jeopardize U.S. agricultural exports, disrupt domestic
food supplies and industries, and erode public confidence in both the safety of food
and the government’s ability to safeguard it.
The transfer of approximately 2,680 APHIS inspectors to CBP accounts for
about two-thirds of the Agricultural Quarantine Inspection (AQI) program’s
70 U.S. Department of Homeland Security, U.S.-Mexico Border Partnership Joint Statement
on Progress Achieved, [http://www.dhs.gov/dhspublic/display?content=570].
personnel, and one-third of APHIS’ total staffing. DHS personnel inspect
international arrivals of passengers and their baggage, imported cargo and
international package mail, and international conveyances. While combining
agricultural inspections with other border security activities can increase the number
of inspectors who can monitor the border for prohibited agricultural products, it
requires diligence to maintain adequate agricultural inspections in light of more
general customs and immigration concerns.
Inspection Procedures. As with other inspection functions by former
Customs and INS personnel, animal and plant health inspectors use a “smart border”
or risk assessment approach to identify which people or containers to inspect.
Intelligence based on documents and advance notice frequently can add security away
from the United States and make the actual border more fluid for legitimate trade and
Passenger Inspection. The passenger inspection program utilizes a uniform
inspection process at land, sea, and air ports of entry. Passenger baggage is inspected
on a random basis, and also from information that passengers provide on declaration
forms. Inspectors also speak with travelers at primary inspection stations to ascertain
where they have come from and what agricultural and food products they may be
carrying. Based on the point of departure, inspectors judge whether passengers are
more likely to be carrying, for example, prohibited fruit, spices, cheese, or meat. All
agricultural products are subject to inspection and are confiscated if they are found
to be infested or are prohibited entry due to known pest and disease risks.
To focus attention on the highest risk passengers, agricultural inspections are
coordinated with other inspection functions, either physically or through intelligence
sharing. Before DHS was created, APHIS cooperated with other inspectors through
the Border Passenger Processing Initiative. The majority of passengers cleared
through the system without delay. APHIS, Customs, INS, and the State Department
examined passenger lists and checked them against past violators and other data to
determine the most effective targets for inspection. Inspector dog teams (commonly
known as the “beagle brigade”) roam the baggage arrival areas and can effectively
determine the presence of agricultural products without opening individual bags.
APHIS also uses x-ray technology to quickly screen certain targeted baggage.
Pre-clearance of passengers is sometimes more feasible than inspection at ports
of entry. Passenger pre-clearance responsibilities were not transferred to DHS.
Passengers departing Hawaii and Puerto Rico for the mainland pass through an
APHIS pre-departure inspection. Even though part of the United States with respect
to immigration and customs, these offshore locations could present agricultural
threats to the mainland. APHIS also operates passenger pre-clearance programs in
Bermuda, the Bahamas, Aruba, and at four cities in Canada (Montreal, Toronto,
Vancouver, and Calgary). U.S. inspectors pre-clear passengers passing through
Canada on their way to the United States, since Canadian passengers typically would
not face the same level of agricultural inspection at U.S. ports of entry. A pre-
clearance program for military passengers expedites the arrival of soldiers returning
from countries that have pests that could harm domestic agriculture.
Cargo Inspection. Cargo shipments are targeted for efficient inspections
based on manifest descriptions of the containers. This assessment occurs at ports of
entry and, more commonly, at departure ports. Notification while in transit,
especially for ships, allows inspectors to target certain shipments upon arrival at port.
Inspectors board ships, planes, rail cars, and trucks in order to thoroughly
inspect shipments. In some cases, products are off-loaded at secure warehouses for
a more thorough “strip-out” inspection. In addition to inspecting agricultural
products, inspectors also examine shipments of auto parts or other products arriving
in crates or pallets containing solid wood packing material that could contain harmful
wood-boring pests. USDA personnel also typically oversee, and sometimes carry
out, any necessary fumigation of agricultural cargo at ports of entry.
In addition to visual, x-ray, and detector dog inspection, APHIS is adapting new
technologies for finding biological agents in cargo shipments. The Ruggedized
Advanced Pathogen Identification Device (RAPID) is a handheld instrument that can
identify pathogens in the field within 30 minutes instead of up to several days in the
laboratory. RAPID is currently being tested for possible use at ports of entry.
Pre-clearance of cargo adds to the security of agricultural inspections and
reduces the demand on inspectors at the borders. Commodity pre-clearance activities
were not transferred to DHS. Often it is more practical and effective to check and
monitor commodities for pests or diseases at the source. The goal is to intercept
destructive pests in their native lands before being transported to the United States.
APHIS has special arrangements with a number of countries and has a corps of
experts stationed overseas to supplement domestic inspectors. APHIS conducts 35
commodity pre-clearance programs overseas including, for example, mangoes from
Mexico, blueberries from Argentina, bulbs from the Netherlands, and grapes from
Chile. Many of the programs are seasonal. Importers pay for pre-clearance through
Some agricultural commodities require inspection only prior to departure for the
United States. Pre-cleared commodities are less likely to require intensive
inspections at the port of entry, although they may be subject to random inspection
and/or checks to ensure compliance with any other mitigating steps that were
required to take place between the time of the pre-clearance inspection and arrival at
the port of entry. Other commodities, however, require treatment before they can be
cleared for entry. The most common types of pre-clearance treatments include hot
water immersion, cold treatment, and fumigation.
In addition to traditional cargo, food and garbage from international flights and
cruises can carry pests and diseases that could harm U.S. agriculture. All
international trash must be handled and disposed of according to APHIS regulations.
Inspectors regularly examine international modes of conveyance and consult with
airlines, cruise lines, ship and rail companies to ensure that trash is being properly
handled and discarded. Problems identified during these inspections can lead to
citations for violations.
Smuggling and Trade Compliance. A Smuggling Interdiction and Trade
Compliance staff (about 120 people) is part of APHIS’ port operations presence.
This team monitors pathways through which prohibited products can enter the United
States and cooperates with law enforcement officials to conduct unannounced
inspections “blitzes” at markets, warehouses, and ports of entry. They seize
prohibited items and help prosecute smugglers. In FY2002, the staff seized 6,000
kilograms of prohibited plant products and 9,000 kilograms of prohibited animal
Difference Between Northern and Southern Borders. Agricultural
inspections are generally uniform at the land border crossings with Canada and
Mexico. Many of the pests and diseases of concern to agriculture have potential
pathways into the United States through both the northern and southern borders. For
example, while Canada cannot grow citrus in its colder climate, it does allow imports
of tropical fruit from countries with known fruit fly populations, and thus is of
concern to U.S. agriculture.
Other pests and diseases vary between Canada and Mexico and necessitate
different procedures. For example, live cattle being imported from Mexico are
dipped in an insecticide bath prior to entry into the United States to prevent entry of
exotic ticks. At the northern border, imports of cattle and beef products currently are
prohibited due to BSE (mad cow disease) restrictions. These differences, however,
are based on risk assessments of pest and disease differentials rather than the inherent
location of the border. Similar differences in inspections or prohibitions apply to
cargo and passengers arriving from various international locations.
Related Policies and Procedures
While the focus of this report is border inspections, there are a few related
policies and procedures that warrant discussion because they are integral to the CBP
inspections process. The Transportation Security Administration (TSA) has
responsibility for aviation security. The USDA retains a key policy role in plant and
animal inspections. The Department of State’s (DOS) Bureau of Consular Affairs
issues the visas that enable foreign nationals to enter the United States. The
Department of Health and Human Services (HHS) sets the policies on screening
travelers for communicable diseases. There are important Customs initiatives that
aim to streamline inspections by securing the cargo and supply chain. These related71
policies and procedures are briefly discussed below.
Aviation Security. Among its many homeland security responsibilities, TSA
is the lead agency for airport security, air cargo security, baggage screening and
passenger pre-screening — duties that extend well beyond the international air ports
of entry. Established by legislation passed two months after the September 11, 2001
terrorist attacks, TSA is now located in BTS alongside CBP. TSA officials state that
their first priority is to protect air travelers, and to do so they have set into place a
71 The U.S. Coast Guard plays a major homeland security role as the lead agency for port,
waterway and coastal security and for alien migrant interdiction on the high seas. See CRS
Report RS21125, Homeland Security: Coast Guard Operations — Background and Issues
for Congress, by Ronald O’Rourke; and CRS Report RL31733, Port and Maritime Security:
Background and Issues for Congress, by John Frittelli.
system of reinforcing rings of security to mitigate the risk of future terrorist or
criminal acts. These security measures cover air traffic from curbside to cockpit,
supported overall by intelligence and threat analysis.72
TSA relies on the Computer Aided Passenger Pre-Screening (CAPPS) system
as a threat assessment tool for airline passengers. Since 1996, CAPPS analyzes data
on ticket purchasing behavior to identify air travelers who may pose a threat. The
implementation of the second generation, CAPPS II, is caught up in privacy
protection and civil liberty concerns. In terms of air cargo, TSA reportedly is
designing a random, threat-based, risk-managed freight screening process and
continues to develop an automated and enhanced “known” shipper program. TSA
estimates that 2.8 million tons of cargo transported per year is now secured on
passenger planes and 9.7 million tons on cargo planes.73
Agencies Conducting Agricultural Inspections. The Agricultural
Quarantine Inspection (AQI) program of the USDA Animal and Plant Health
Inspection Service (APHIS) is considered the most significant and prominent of
agricultural and food inspections. Because of this prominence, AQI was one of the
many programs selected for inclusion when the Department of Homeland Security
was created. A legislative compromise during deliberations on the legislation
creating the new department transferred only the border inspection function of
APHIS, leaving other activities at USDA as described below.
Even though the border inspection function of APHIS has moved to DHS,
USDA-APHIS retains a significant presence in border inspection activities. The
nearly 1,300 AQI employees who were not transferred continue to conduct certain
domestic inspection functions, such as monitoring entry to the mainland from Hawaii
and Puerto Rico. They continue to set agricultural inspection policies to be carried
out by DHS border inspectors, including determining what agricultural products are
allowed to enter the United States and what items are to be denied entry. APHIS
provides training to DHS inspectors regarding agricultural inspections, manages the
data collected during the inspections process, and monitors smuggling and trade
compliance. APHIS also continues to pre-clear certain commodities, inspect all
imported propagative material, monitor animals in quarantine, and conduct certain
other port activities such as fumigations. To assure that necessary agricultural
inspections are conducted, APHIS negotiates memoranda of understanding (MOUs)
Separating duties this way is intended to allow a consolidated border inspection
function with customs and immigration personnel for intelligence and security goals,
but preserves USDA’s expertise and historical mission to set agricultural import
policies to protect American agriculture.
72 For a complete discussion, see CRS Report RL31969, Aviation Security: Issues Before
Congress Since September 11, 2001, by Bartholomew Elias.
73 For background and analysis, see CRS Report RL32022, Air Cargo Security, by
While APHIS is responsible for protecting the health of U.S. agriculture, other
agencies such as the USDA Food Safety and Inspection Service (FSIS) and HHS’
Food and Drug Administration (FDA) focus on protecting public health. At ports of
entry, FSIS and FDA personnel inspect shipments of food and food products
imported into the United States from abroad to ensure that the food and related
products meet U.S. standards and do not present any risk to public health. As an
example, AQI personnel may inspect a shipment of sausage casings to ensure that the
shipment does not pose any animal health risk, while FSIS personnel may inspect the
same shipment to ensure that the product was prepared in an approved processing
facility. The Department of Interior Fish and Wildlife Service (FWS) inspects
international cargo, baggage, passengers, and mail to enforce U.S. and international
laws regarding trade in endangered and protected species. This report is limited,
however, to agricultural inspections conducted by DHS and the continuing role of
Visa Procedures. Foreign nationals not already legally residing in the United
States who wish to come to the United States generally must obtain a visa to be
admitted.74 There are two broad classes of aliens that are issued visas: immigrants75
and nonimmigrants. The Department of State’s Bureau of Consular Affairs
(Consular Affairs) is the agency responsible for issuing visas. DHS is responsible
for formulating regulations on visa issuances and may assign staff to consular posts
abroad to advise, review, and conduct investigations.76 DHS’s United States Bureau
of Citizenship and Immigration Services (USCIS) is charged with approving
immigrant petitions, a prerequisite for obtaining a visa to become a legal permanent77
resident. The documentary requirements for visas are stated in §222 of the INA,
with some discretion for further specifications or exceptions by regulation, most78
notably the Visa Waiver Program.
All aliens seeking visas — prospective immigrants and nonimmigrants — must
undergo admissibility reviews performed by DOS consular officers abroad.79 These
74 Authorities to except or to waive visa requirements are specified in law, such as the broad
parole authority of the Attorney General under §212(d)(5) of the Immigration and
Nationality Act (INA) and the specific authority of the Visa Waiver Program in §217 of
INA, which are discussed later in this memorandum.
75 For background and analysis of visa issuance policy and activities, see CRS Report
RL31512, Visa Issuances: Policy, Issues, and Legislation, by Ruth Ellen Wasem.
76 For more on the division of duties, see CRS Report RL32256, Visa Policy: Roles of the
Departments of State and Homeland Security, by Ruth Ellen Wasem.
77 The memorandum of understanding (MOU) that implements the working relationship
between DOS and DHS’s three immigration-related bureaus was signed Sept. 29, 2003.
78 For a discussion of these waivers and the countries whose nationals do not need visas, see
Congressional Distribution Memorandum, Waiving the Documentary Requirements for
Visas and Passports to Enter the United States, by Ruth Ellen Wasem and Andorra Bruno,
Oct. 27, 2003; and CRS Report RL32221, Visa Waiver Program, by Alison Siskin.
79 These grounds for inadmissibility are spelled out in §212(a) of INA. Consular officers use
the Consular Consolidated Database (CCD) to screen visa applicants. For some years,
reviews are intended to ensure that they are not ineligible for visas or admission
under the grounds for inadmissibility, which include criminal, national security,
health, and indigence grounds as well as past violations of immigration law. As a
result, all aliens arriving with visas have had background checks. For the past several
years, moreover, Consular Affairs has been issuing machine-readable visas. By
October 2004, all visas issued by the United States must use biometric identifiers
(e.g., finger scans) in addition to the photograph that has been collected for some
Protection Against Communicable Diseases. The Centers for Disease
Control (CDC) in HHS take the lead in protection against communicable diseases at
the border.81 A medical examination is required of all aliens seeking to come as legal
permanent residents (LPRs) and refugees, and may be required of any alien seeking
a nonimmigrant visa or admission at the port of entry. As noted earlier, an
immigration inspection includes a determination of whether the alien is inadmissible
due to a health-related condition. The diseases that trigger inadmissibility in the INA
are acquired immune deficiency syndrome (AIDS) and those communicable diseases
of public health significance as determined by the Secretary of HHS. Those diseases
currently barred by regulation are: cholera, diphtheria, infectious tuberculosis,
plague, smallpox, yellow fever, viral hemorrhagic fevers (Lassa, Marburg, Ebola,
Crimean-congo, South American, and others not yet isolated or named), and severe
acute respiratory syndrome (SARS). Aliens are also required to have vaccinations
against vaccine-preventable diseases, including mumps, measles, rubella, polio,
tetanus, diphtheria, pertussis, influenza type B and hepatitis B.82
CDC officials are not present at the border on a day-to-day basis, but there are
quarantine stations located in the international airports in New York, Chicago,
Miami, Atlanta, Los Angeles, San Francisco, Seattle, and Honolulu. The CDC,
through their Division of Global Migration and Quarantine, train CBP inspectors to
watch for ill persons and items of public health concern, and they work with state and
local health officials in jurisdictions that may be affected under particular
circumstances. They have been available at the border during immigration83
emergencies and other periods when public health may be threatened.
consular officers have been required to check the background of all aliens in the “lookout”
databases, specifically the Consular Lookout and Support System (CLASS) and TIPOFF
databases. Consular officers also send suspect names to the FBI for a name check program
called Visa Condor.
80 PL. 107-56 and P.L. 107-173 require that visas and other travel documents contain a
biometric identifier and are tamper-resistant.
81 Their statutory authorities can be found at 8 U.S.C. §1182; 8U.S.C. §1222; 42U.S.C.
§264-§272; and 42U.S.C. §252.
82 See CRS Report RL31719, An Overview of the U.S. Public Health System in the Context
of Bioterrorism, by Holly Harvey and Sarah Lister.
83 For more information on CDC and their the Division of Global Migration and Quarantine,
Cargo and Supply Chain Security. In order to maximize its inspection
resources, CBP has launched several initiatives focusing on enhancing the targeting
of high-risk shipments, and securing the entire supply chain from point of origin to
final destination. One of these initiatives is the Customs-Trade Partnership Against
Initiated in April 2002, C-TPAT offers importers expedited processing of cargo
if they comply with CBP requirements for securing their entire supply chain. In order
to participate in the C-TPAT, businesses must sign an agreement that commits them
to the following actions: conduct a comprehensive self-assessment of supply chain
security using the C-TPAT security guidelines jointly developed by CBP and the
trade community; submit a supply chain security profile questionnaire to CBP;
develop and implement a program to enhance security throughout the supply chain
in accordance with C-TPAT guidelines; communicate C-TPAT guidelines to other
companies in the supply chain; and work toward building the guidelines into
relationships with these companies.
Border Inspection Trends
by Ports and Modes of Entry
Border inspections conducted each year number in the hundreds of millions. As
Figure 1 depicts, the number of passenger inspections peaked in FY2000. Since
immigration and customs inspectors were cross-designated, it appears that an
unknown number of passengers were enumerated in the data of both INS and
Customs. Prior to the establishment of CBP, immigration inspectors did most
passenger inspections, followed by customs inspectors. Agricultural inspections
were a distant third, but APHIS still completed 44 million animal and plant
inspections of passengers in FY2002. Unlike customs and immigration inspections
data, APHIS data enumerate only those passengers referred to secondary inspections
for the purpose of an agricultural inspection. In FY2003, CBP reported that they
inspected 412.8 million passengers.
Analyses of workload trends prior to the establishment of DHS follow for each
major type of inspection — immigration, customs, and agricultural inspections.
Unless otherwise noted, the data analyses are based on data provided by the “legacy”
agencies of the U.S. Immigration and Naturalization Service (INS), U.S. Customs
Service and U.S. Department of Agriculture (USDA).
Figure 1. Passenger Inspections, FY1998-FY2002
1998 1999 2000 2001 2002
A P H I S C u s t o ms I mmi gr a t i o n
Source: CRS analyses of DHS unpublished data from "legacy" agencies.
Immigration Inspections Data
In FY2000, 534 million travelers were inspected at U.S. ports of entry, a peak
year for immigration inspections. The number declined following the September 11,
2001 terrorist attacks, reducing the FY2001 total to 511 million and the FY2002 total
to 448 million (Figure 1). The number of travelers referred to secondary inspections
began to rise in FY2000, peaking at over 10 million in FY2002 (Figure 2). As
Figure 2 indicates, however, the number of persons denied entry has held steady
from FY1998 to FY2002, during which an average of less than 1% of all travelers
(and about 10% of all people referred to secondary) were denied entry.
Figure 2. Immigration Inspections: Secondary Referrals and Denials
1998 1999 2000 2001 2002
Source: CRS analysis of INS workload data.
Although the primary mode of travel into the United States is through land ports
of entry, air and sea ports of entry have their share of travelers seeking entry into the
country. Collectively, land ports of entry in Texas and California led all other states
with respect to the number of travelers inspected (Figure 3). With respect to air
ports of entry, New York, Miami and Los Angeles International Airports accounted
for 32% of all inspections in FY2002 (Figure 4). Sea ports of entry account for the
smallest percentage of travelers seeking entry into the United States.
Land Ports of Entry. The majority of travelers (approximately 80%) enter
the United States at a land port of entry. Land ports of entry are often referred to
based on their geographic proximity to the northern or southwest border. Over the
years, the southwest border has seen the highest volume of travelers seeking entry
into the United States, as Figure 3 illustrates. Three southwest ports of entry made
up five of the busiest ports of entry between FY1998 and FY2002. Those southwest
ports of entry — located in Texas, California and Arizona — accounted for over 70%
of all inspections at the five busiest land ports of entry in FY2002.
Figure 3. Top Five Busiest Land Ports of Entry by State
Mi chi gan
1998 1999 2000 2001 2002
Source: CRS analysis of INS workload data.
CBP inspectors at land ports of entry must be cognizant of individuals
attempting to smuggle illegal aliens into the country.84 In FY2002, a little over
68,000 illegal aliens were caught being smuggled into the United States at land ports
of entry, primarily along the southwest border.85
Air Ports of Entry. In FY2002 air ports of entry accounted for 15% of
travelers who sought entry to the United States. Although the number of persons
seeking entry at air ports of entry is relatively small in comparison to land ports of
entry, the inspection process can be more complicated due to the diverse population
seeking admission to the United States. As Figure 4 illustrates, California’s airports
had the largest volume of immigration inspections, from FY1998 to FY2002,
followed closely by Florida and New York. Texas held steady at fourth place with
Illinois and New Jersey competing for fifth place.
84 In addition to human trafficking, land borders and ports of entry are also the preferred
venue for smuggling in drugs and contrabands into the United States.
85 CRS examination of INS PAS data.
Figure 4. Top Five Busiest Immigration Airports of Entry by State
20 Fl o r i d a
1998 1999 2000 2001 2002
Source: CRS analysis of INS workload data.
Prior to passage of IIRIRA, which mandated the DOJ to develop an automated
entry and exit data system to replace the manual system,86 immigration inspectors at
air ports of entry have long collected the I-94 form from aliens. The I-94 form is
usually given to aliens while in transit to the United States and contains information
such as the alien’s identification and an address where the alien will be staying while
in the United States. After reviewing the alien’s travel document and interviewing
the alien, the immigration inspector determines how long the alien can stay in the
United States. The length of stay and immigration classification, both determined by
the immigration inspector, is evident on a completed I-94 form. The information on
the I-94 form is later put into the Non-Immigrant Information System (NIIS).87
Although the I-94 form is routinely collected at air ports of entry, reportedly it is
rarely collected upon exit. At this point it is not clear how the implementation of US-
VISIT will affect NIIS and the use of the I-94 forms.
Sea Ports of Entry. Immigration statistics for sea ports of entry are separated
into two categories: seaports and cruise ships. The two categories are further divided
to reflect the number of U.S. citizens, aliens and crew personnel that were inspected.
The majority of vessels are passenger cruise ships, mainly consisting of U.S. citizens.
Similar to aliens entering the United States at an air port of entry, aliens who seek
entry at a seaport must submit an I-94 form prior to arrival at a sea port of entry. In
FY2002, inspections at seaports and on cruise ships accounted for less than 1% of all
86 §110 of P.L. 104-208.
87 NIIS is a mainframe system that stores arrival and departure information for non-
immigrants that is captured on the I-94 form.
travelers seeking entry into the United States. Florida consistently ranks as the state
with the largest volume of immigration inspections at seaports.
Figure 5. Top Five Busiest Sea Ports of Entry by State
Fl o r i d a
1998 1999 2000 2001 2002
Source: CRS analysis of INS workload data. Puerto Rico led the continental United States
for number of persons inspected at sea ports of entry in FY1999, FY2001 and FY2002
Inspection of Alien Crew Members. Alien crew members are inspected
at air ports of entry usually at a separate location from the general public. According
to INS Inspector’s Field Manual, “at air ports of entry it is the general practice to
expedite the admission of arriving crewmen.” With respect to sea ports of entry,
alien crew members arriving on vessels, like alien passengers, must submit an I-94
form prior to arrival at a sea port of entry.
Cargo Inspections Data
In FY2002, customs inspectors processed the importation of cargo valued at
$1,183 billion, with most of the cargo (11.2 million conveyances) arriving by truck.
Railcars (2.4 million conveyances in FY2002) were the second most used
conveyance, followed by vessels (0.2 million conveyances in FY2002). Those
vessels, however, include multiple cargo containers (7.3 million in FY2002). Figure
FY2002. Appendix D provides more detail on the data presented in Figure 6.
Data on the number of cargo containers physically inspected by CBP were not
available for inclusion in this report. The Commissioner of CBP, Robert Bonner,
testified that two years ago that 9% of rail containers, 2% of sea containers, and
intrusively. According to his testimony these numbers currently stand at 22.6% of
rail containers, 5.2% of sea containers, and 15.1% of trucks entering the United
States. Commissioner Bonner testified that across all modes of transportation CBP
is currently inspecting approximately 12.1% of all cargo containers entering the
United States; up from approximately 7.6% two years ago.88
Figure 6. Customs Cargo Processed by Type of Conveyance
10 R ai l cars
1998 1999 2000 2001 2002
Source: CRS analysis of data provided by CBP.
Cargo Inspections at Airports. Customs processed approximately 770,000
commercial aircraft, and approximately 210,000 private aircraft in FY2002, as noted
in Appendix D. According to data from the Airports Council International, the top
ten United State airports by volume of international cargo for FY2002 were:
Memphis (MEM), Los Angeles (LAX), Anchorage (ANC), Miami (MIA), New York
(JFK), Louisville (SDF), Chicago (ORD), Indianapolis (IND), Newark (EWR), and
Cargo Inspections at Seaports. In FY2002, Customs processed 7.3
million vessel cargo containers. Appendix C provides port level data for the top 10
U.S. Container Ports from 1995-2002. In FY2002, the top 10 U.S. Container Ports
accounted for 84% of the total volume of 20-foot equivalent units (TEU’s) moving
through all U.S. seaports. Los Angeles handled the highest volume of TEU’s,
accounting for 21% of the total.
88 Testimony of Commissioner, Customs and Border Protection Robert C. Bonner, in U.S.
Congress, Senate Committee on Commerce, Science, and Transportation, Oversight ofthst
Transportation Security, 108 Cong., 1 sess., Sept. 9, 2003 (Washington: Federal
Document Clearing House, Inc.), p.34.
Cargo Inspections at Land Ports. As discussed earlier, over 11 million
trucks carrying cargo were processed by customs inspectors. In FY2002, the busiest
land port was Detroit, Michigan, with 1.7 million trucks crossing accounting for 24%
of the truck crossings at the northern border. Laredo, Texas, was the busiest POE for
truck crossing along the southern border, with 1.4 million truck crossings. Northern
POEs overall handled more truck crossing than southern POEs, and Figure 7
illustrates the number of truck crossings at the northern and southern border for
FY2000-FY2002. Appendices F and G include data on the total number of trucks
processed by Customs for FY1997-2002.
Figure 7. Trucks Conveying Cargo, 2000-2002
2000 2001 2002
Source: CRS analysis of Bureau of Transportation Statistics data.
In FY2002 Customs processed 2.4 million railcars. As indicated by Figure 8,
which depicts railcar crossings at the northern and southern border for FY2000-
FY2002, most of the railcar crossing were with Canada. The data, tabulated by
Bureau of Transportation Statistics, include both loaded and unloaded railcars. For
FY2002 the top five ports accounted for 72% of total railcar crossings along the
northern border. At the southern border, the top five ports accounted for 98% of the
total crossings. Appendices F and G include data on the total number of railcars
processed by Customs for FY1997-FY2002.
Figure 8. Railcars Conveying Cargo, 2000-2002
2000 2001 2002
Source: CRS analysis of Bureau of Transportation Statistics data.
Animal and Plant Health Data
Inspection Statistics. APHIS collects data on the inspections process
through its Work Accomplishment Data System (WADS). Three types of statistics
are particularly important for assessing the inspections process. (1) An inspection is
a secondary level interview of a person or examination of his/her baggage based on
entrance documents, detector dog identification, or random selection at a primary
inspection station. X-ray or visual examination of baggage contents may occur. For
cargo and international mail, an inspection occurs when the shipment is opened or
x-rayed. (2) An interception is the identification of items having quarantine
significance that may be confiscated or transferred to another APHIS facility for
subsequent evaluation or treatment, depending on the cargo. (3) A violation is
counted when goods are found to be misrepresented on documents, import rules were
violated, or items were otherwise attempted to be smuggled. Ships or aircraft can
incur violations for not following certain arrival procedures or for improper handling
Since APHIS uses a targeted inspection approach, it may be somewhat
misleading to present a ratio of goods or people inspected from the entire pool of
international arrivals. The actual percentage of all entries inspected would appear
unusually small since only higher-risk entrants are inspected. By using intelligence
and risk assessment models, the subset of passengers or goods targeted for inspection
should have notably higher rates of interceptions and violations than the entire pool
of arrivals. Also, preclearance of certain cargo shipments removes another subset of
imports from the same need for inspection at ports of entry. Finally, because APHIS
tabulates cargo inspection statistics by bill of lading rather than by weight or value,
an overall ratio of goods inspected is infeasible to compute and would lack meaning.
Thus, the percentages presented below are interceptions or violations among the
subset chosen for inspection.
In general, about 2%-3% of passengers who are targeted for inspection are found
carrying items of quarantine significance (counted as interceptions). Only 1%-2%
of inspected cargo shipments are found with such items, but the figure is higher for
international mail (3%-8%). These results are in line with APHIS’ goals for the
inspection program. Interception figures are higher for certain modes of conveyance,
especially for aircraft. Nearly half of inspected aircraft have intercepted items, while
Appendices H and I contain inspection statistics compiled by APHIS upon request
for this report.
Figure 9. Agricultural Inspections, FY1998-FY2002
Cargo (Bill of Lading)
1998 1999 2000 2001 2002
Source: CRS analysis of USDA-APHIS, special tabulations of work accomplishment data.
Passengers. In FY2002, APHIS reported that 69 million maritime, land
border, and airline passengers entering the United States were subject to inspection.
Of this number, APHIS actually inspected 33.8 million passengers and made 890,000
interceptions of quarantine significance. The interception rate of 2.6% is fairly low,
because of the targeted nature of the inspections process. Nearly 13,000 inspections
resulted in violations. Both the interception rate and the violation rate have been
declining slightly since 1998.
Pre-clearance of passengers prior to departure supplements inspections at the
border. In FY2002, APHIS conducted pre-clearance inspections of over 10.5 million
passengers, including 1.5 million passengers departing Hawaii and Puerto Rico for
the mainland. The rate of interceptions in the pre-clearance program (about 2%) is
less than that for passenger inspections at ports of entry. This is likely due to the
selected number of departure points having pre-departure programs and their below-
average risk profile (such as Hawaii, Puerto Rico and Canada).
Cargo and International Mail. Working with Customs to target shipments
for more efficient inspection, APHIS inspected 953,000 cargo shipments (bills of
lading) in FY2002. The number of inspections has risen by nearly a third since 1998,
although the ratio of interceptions has remained fairly constant and generally under
3%. Violations doubled between 1998 and 2002, although the ratio is very small at
one-twentieth of 1% percent.
Figure 10. Agricultural Inspections by Type of Conveyance
1998 1999 2000 2001 2002
ShipsAircraftVehicles, Buses, Rail Cars
Source: CRS analysis of USDA-APHIS, special tabulations of work accomplishment data.
Inspections of international mail for agricultural pests and diseases has remained
nearly level since 1998, with about 420,000 inspections in FY2002. The interception
and violation rates are higher than those for cargo, with 8.2% of inspected mail
packages containing items of quarantine significance in 2002. This figure, however,
is noticeably higher than in previous years and may not necessarily reflect a trend.
Ships, Aircraft, Vehicles, and Railcars. In addition to inspections of
passengers and cargo, the mode of conveyance is also subject to agricultural
inspection. In FY2002, APHIS inspected 64,000 ships, a similar number to previous
years. Fifteen percent resulted in interceptions, up from 9% in 1998, sometimes for
improper handling of garbage and waste within U.S. boundaries.
The number of aircraft inspected in FY2002 was 423,000, up by 12% since
1998. The rate of agricultural pest interceptions for aircraft is very high compared
to other types of agricultural inspection. In FY2002, nearly half of inspected aircraft
were found with items of quarantine significance, although this incidence has fallen
steadily from 91% in 1998. As with the statistics for ships, improper handling of
garbage originating from a foreign source that could harbor forbidden agricultural
products or pests frequently contributes to the high rate positive findings.
Inspections of vehicles, buses and rail cars entering the United States from
Canada and Mexico increased 60% from 1998 to 2002. In FY2002, APHIS
conducted 2.9 million such inspections and made 341,000 interceptions. The
interception rate has fallen slightly from 15% in 1998 to 12% in 2002.
Budget and Staffing for Inspections
Border inspections are funded through a combination of federal discretionary
appropriations and user fees. For FY2004, CBP was given budget authority of
$2,496 million for border security, inspections, and trade facilitation at POEs. CBP
has requested $2,724 million for FY2005. The House passed H.R. 4567, the FY2005
DHS Appropriations Act, would provide $5.1 billion for CBP. The Senate bill, S.89
2537 as reported, would provide $5.0 billion for CBP. This section of the report
analyzes funding trends and staffing for the three functions prior to their merger into
CBP. These historic funding data are not comparable across agencies and, as noted
below, may include activities in addition to the inspection functions. As a result, the
funding and staff data presented below cannot be summed into total spending for
Table 1. Inspections Staff for All Locations, FY2001-FY2004
Fiscal yearImmigrationCustomsAgricultureCBP non-APHIS
2004 — — 1,44617,784
Source: CRS presentation of CBP Field Operations data as of Jan. 10, 2004. Comparable data on
agriculture inspections staff were not provided for FY2001 and FY2002.
CBP’s Office of Field Operations, however, has provided data on inspections
staff that are distinct from full-time equivalent (FTE) staffing used in budget and
appropriations documents. As Table 1 presents, the overall number of inspectors
grew from FY2001 through FY2003. As Table 1 and the subsequent analysis
89 For tracking and analysis, see CRS Report RL32566, Border and Transportation Security:
Appropriations for FY2005, coordinated by Jennifer Lake and Blas Nuñez-Neto.
reveals, there have been more customs inspectors than immigration and agricultural
inspectors combined over the period analyzed in this report.
Prior to the transfer of the former INS to DHS, Congress funded the agency
from several sources. Funding for salaries and expenses was appropriated from
general revenues, off-setting fee receipts, and the Violent Crime Trust Fund
(VCTF).90 Specific funding for the agency’s construction projects was appropriated
from a construction account. The former INS’ immigration appropriations account
was divided between the agency’s two main functions, immigration adjudications
and services and enforcement and border affairs. The budget authority column in
Table 2 represents the inspection activity of the former INS, but comparisons over
time are limited due to the inclusion of funding for the border patrol in the FY2001
and FY2002 budget figures. Nonetheless, funding for immigration inspections had
risen in the late 1990s.
Table 2. Immigration Inspections Budget
Fiscal yearImmigration inspections activities(millions of dollars)Staffing (FTES)
1998168Information not available
2001 1,494 a 5,472
20022,440a, bInformation not available
Source: Table prepared by CRS based on data from INS FY1999-FY2002 Congressional Budgets
and various Appropriations Acts (see below).
a. The figure includes funding for the border patrol and inspections activities.
b. The figure reflects what was enacted and the Counterterrorism Supplemental funding.
The user fee account, which provided most of the funding for immigration
inspections, includes a levy on aliens seeking entry into the United States on an91
international flight. The user fee account also includes the Land Border Inspection
90 The VCTF was established by the Violent Crime Control and Law Enforcement Act of
1994 (P.L. 103-322). Congress authorized funding for FY1995-FY2000 for purposes
authorized by P.L. 103-322. Congress did not reauthorize the VCTF and it expired in
91 Congress first authorized the Attorney General to charge a user fee for immigration
inspections in the Department of Justice Appropriations Act of 1987 (P.L. 99-591), which
created §286(d) of the INA. The Commerce, Justice, State, the Judiciary and Related
Agencies Appropriations Act, FY2002 (P.L. 107-77) included provisions that increased the
Fee, which levies a user fee for inspection services at land ports of entry and
dedicated commuter lanes that are used by prescreened U.S. citizens and certain
aliens (see discussion on Automated Inspections above). Fees are also generated
through fines levied against airlines and other carriers for not complying with
immigration regulations. Immigration inspections also drew on monies generated by
the Examinations Fee Account, which is collected to cover the processing and
adjudication of immigrant, nonimmigrant, refugee, asylum, and citizenship benefits.92
The construction account included appropriations for construction projects for the
As with immigration inspections, Customs activities are funded by direct
appropriations and by fee revenue. Prior to the transfer of the U.S. Customs Service
to DHS, Congress funded Customs activities from several sources and into several
different accounts. Most Customs funding was appropriated into the Salaries and
Expenses account, which in turn was allocated into two budget activities:
commercial activities, and drug and other enforcement activities. The Customs
inspection function falls into commercial activities, and Table 3 reports Customs
budget and staffing resources devoted to the commercial activities from FY1998 to
Table 3. Budget Authority for Customs Commercial Activities
Fiscal yearCommercial activities(millions of dollars)Staffing(commercial activity FTES)
1998 853 9,295
1999 886 9,363
2000 922 9,070
2001 1,085 9,256
2002 a 1,173 9,728
Source: U.S. Customs Service, Budget Justifications, FY1999-FY2003.
a. FY2002 Commercial Activity Appropriation and FTEs are estimates contained within the FY2003
justification material. Final published FY2002 numbers were not available due to the changes
to the FY2004 budget justification materials reflecting the realignment of the legacy Customs,
INS, and APHIS in CBP.
airport user fee from $6 to $7 and levied a cruise ship fee of $3 for journeys that originate
in Mexico, Canada and the United States.
92 § 286(m) of INA. 8 U.S.C. § 1356.
The off-setting receipt revenue generated from user fees is an important source
of funding for customs inspections.93 The Consolidated Omnibus Budget
Reconciliation Act of 1985 (COBRA ‘85; P.L. 99-272) established fees for
inspection-related service. The COBRA fees are comprised of eight separate user
fees levied on passengers, conveyances, and brokers.94 COBRA fee receipts are not
appropriated for obligation by Congress, but they are available to CBP for
expenditure each year. COBRA fee receipts amounted to $271 million in FY2002,
and are estimated to amount to $288 million in FY2003.95 The authorization to
charge COBRA fees expires March 1, 2005.96
CBP also collects merchandise processing fees (MPF) to offset the cost of
processing formally entered imported merchandise. MPF collections were authorized
by the Omnibus Budget Reconciliation Act of 1986 (COBRA ‘86; P.L. 99-509), and
unlike COBRA fee receipts, MPF fees are appropriated for obligation by Congress.
MPF receipts amounted to $955 million in FY2002, and are estimated to amount to
$1,022 million in FY2003.97 Authorization to charge MPF also expires March 1,
Animal and Plant Health Functions
Agricultural animal and plant health inspections are funded through a
combination of federal appropriations and user fees. Primary funding comes from
user fees levied on international air passengers and aircraft, as well as commercial
aircraft, vessels, trucks and railcars. User fees have been authorized since 1990.
These user fees support more than the border inspection functions transferred to DHS
and continue to be collected by USDA to carry out inspection-related activities in
general. USDA will transfer funds periodically from the user fee account to cover
User fees are not collected, however, for any passengers or cargo entering from
Canada. Pedestrians and vehicles entering from Mexico are also exempt from paying
the user fees. Appropriated funding supports these activities, due in part to the
logistics of collecting user fees at these high-volume ports of entry. Appropriations
also fund pre-departure inspections of passengers and cargo from Hawaii and Puerto
Rico to the mainland.
Table 4 indicates that 80%-85% of the funding for AQI has come from user
fees. Funding levels grew by nearly 90% in nominal dollars from FY1998 to
FY2002, and staffing levels grew by nearly 43%. The number of canine inspection
93 19 U.S.C. § 58(c).
94 See 19 U.S.C. § 58(c)(a)(1)-(8).
95 Budget of the United States Government Fiscal Year 2004, p. 451.
96 P.L. 108-121, The Military Family Tax Relief Act of 2003, was signed by the President
Nov. 11, 2003, and extends the authorization to charge customs user fees to Mar. 1, 2005.
97 Budget of the United States Government Fiscal Year 2004, p. 451.
teams more than doubled between 1998 and 2002, and has since increased to 110 in
Table 4. APHIS Agricultural Quarantine Inspection:
Budget and Staffing
Funding (millions of dollars)Staffing
1998 27.2 140.6 167.8 2,109 44
1999 31.2 152.2 183.4 2,219 50
2000 34.3 178.8 213.1 2,474 56
2001 48.1 222.7 270.8 2,781 84
2002 47.2 266.0 313.2 3,013 92
The breadth of the AQI inspection and monitoring function is reflected by the
dispersion of staff. In FY2002, 48 states had AQI personnel, although 19 states had
fewer than 10 people assigned. The top five states in terms of the number of
agricultural inspectors during FY2002 included Florida (658), California (430),
Hawaii (411), Texas (340), and New York (196). These five states accounted for
two-thirds of the AQI staffing total and have retained this ranking since at least 1998.
These states also accounted for two-thirds of the number of canine inspection teams.
The top ten local offices of agricultural inspectors included Miami (325),
Honolulu (230), Los Angeles (163), the Citrus Canker Project (150), New York
City/JFK Airport (149), San Francisco (107), Chicago/O’Hare Airport (84),
Elizabeth, NJ (80), Kahului-Maui (80), and Houston (70). These 10 offices
accounted for nearly half of the FY2002 staffing level, and just over half of the
canine inspection teams.
Issues and Concerns
As discussed above, CBP inspectors are charged with enforcing a host of laws
and conducting hundreds of millions of inspections annually. When Congress
enacted HSA, it kept the U.S. Customs Service intact and created the Bureau of
Border Security to oversee immigration inspections, the border patrol, and interior
immigration enforcement activities. As provided for in HSA, the Administration
opted to reorganize the major border inspections functions into CBP. Over the past
year since CBP was established, a variety of issues and concerns have emerged. This
report concludes with discussions of selected policy, administrative, and
constitutional considerations, and a few overarching questions.
Competing Mandates. Tension exists between the need to conduct thorough
inspections searching for terrorists, weapons of mass destruction, illegal drugs and
weapons, unauthorized aliens and improperly entered commercial goods, and the
need to process passenger and cargo inspections efficiently so as not to impede the
flow of travel, trade, and tourism. One dramatic illustration of the effect that
increased inspections can have on the flow of trade at the border occurred in the
immediate aftermath of the September 11, 2001 terrorist attacks. The wait time for
trucks crossing the border was nearly 12 hours at some ports of entry. The land
border between United States and Canada was nearly closed, and as a result, some98
U.S. auto plants began to shut down due to lack of parts.
While most observers acknowledge that inspectors should strike a balance of
their competing goals, some warn that CBP inspectors are too concerned about
facilitating trade and travel to scrutinize passengers and goods thoroughly. Critics
cite the percentages of cargo inspected (22.6% of rail containers, 5.2% of sea
containers, and 15.1% of trucks) and the brevity of the average primary immigration
inspection (reportedly 45 seconds) as indications that the current inspections process
Others maintain that CBP inspections are now conducted with much more
sophistication, drawing on the combined knowledge and experience of the
agriculture, customs and immigration inspections processes. They assert that the
development of analytical targeting units, which emphasize high-risk passengers,
conveyances, and cargo, is protecting border security while enabling the smooth flow
of goods and people.
Targeting High-Risk Shipments. CBP’s ability to successfully target high-
risk containers (a cornerstone of the CSI program) is dependent upon information
regarding which containers are most likely to contain contraband. The rationale
behind the advance cargo manifest rules is to provide CBP with the necessary
information it needs to conduct its targeting operations. While many observers note
the importance of the development of sophisticated targeting mechanisms and the
significant progress CBP has made in collecting advance manifest information, others
have raised concerns.
One issue is the use of the cargo manifest as the primary document by which
CBP gathers information and conducts risk assessments on cargo shipments destined
for the United States. The cargo manifest has traditionally been used for commercial
compliance purposes and has been characterized by some as error prone. Some have
expressed concern that it may not contain the necessary information (such as
98 Remarks of Commissioner Robert C. Bonner, Customs and Border Protection, made at the
Heritage Foundation, Sept. 9, 2003. See [http://cbp.gov/xp/cgov/newsroom/commissioner/
transshipment information) to conduct the security screening currently being carried
out by CBP.99
Also, recent GAO testimony has raised concerns regarding CBP’s targeting
operations. GAO credits CBP with establishing the National Targeting Center,
promulgating regulations to improve the quality and timeliness of cargo data, refining
its targeting system, and instituting a national training program for personnel
conducting targeting operations. However, GAO noted that while CBP’s targeting
strategy incorporated some elements of risk management, it lacked a comprehensive
set of criticality, vulnerability, and risk assessments and does not follow certain
recognized modeling practices.100
Screening Aliens at the Border. Since the September 11, 2001 terrorist
attacks, considerable concern has been raised because the 19 terrorists were aliens
who apparently entered the United States legally on temporary visas. Although the
INA bars terrorists, consular officers issuing the visas and immigration inspectors
working at the borders did not have access to all the law enforcement and intelligence
data that might identify potential terrorists. Congress has enacted major laws
requiring information sharing and interoperable databases to screen potential
terrorists and criminal aliens, the most recent being the Enhanced Border Security
and Visa Reform Act of 2002. Whether these provisions are being successfully
implemented remains an important policy question.101
Last fall, the Administration announced the creation of the Terrorist Screening
Center (TSC) to consolidate the various watchlists into a single terrorist screening
database.102 Recently, the director of TSC, Donna Bucella, testified about the
progress made in developing an unclassified law enforcement sensitive database,
containing identifying information of known or suspected terrorists. Some observers
point out that no government-wide standards on how individuals get placed on or
99 Testimony of Stephen E. Flynn, Council on Foreign Relations, U.S. Congress, House
Committee on Energy and Commerce, Subcommittee on Oversight, Investigations, hearing,
A Review to Assess Progress with the Bureau of Customs and Border Protection’s Targeting
Program for Sea Cargo, Mar. 31, 2004.
100 General Accounting Office, Preliminary Observations on Efforts to Target Security
Inspections of Cargo Containers, GAO-04-325T, p. 1.
101 For evaluations, see U.S. General Accounting Office, Information Technology: Terrorist
Watch Lists Should Be Consolidated to Promote Better Integration and Sharing,
GAO-03-322, Apr. 15, 2003; and U.S. General Accounting Office, Border Security:
Challenges in Implementing Border Technology, GAO-03-546T, Mar. 12, 2003.
102 Homeland Security Presidential Directive 6 (HSPD-6) ordered the creation of the
Terrorist Screening Center (TSC). It was issued on Sept. 16, 2003, and directed the
operations to begin on Dec. 1, 2003. The TSC is multi-agency, including participants from
the FBI, Department of State, CBP, ICE, Secret Service, Coast Guard, Transportation
Security Administration, and the Office of Foreign Assets Control. Their stated goal is “to
consolidate the Government’s approach to terrorism screening and provide for the
appropriate and lawful use of terrorist information in screening processes.” For more on
TSC, see CRS Report RL32366, Terrorist Identification, Screening, and Tracking Under
Homeland Security Presidential Directive 6, by William J. Krouse.
removed from watchlists have been established, fueling civil liberty concerns. Some
have also warned that the lack of clearly designated roles and responsibilities for
TSC, Foreign Terrorist Tracking Task Force (FTTTF), the Terrorist Threat
Integration Center (TTIC), the Counterterrorism Center and other antiterrorist-
related entities continue to foster turf battles and plague efforts to have effective
While US-VISIT, the automated entry and exit data system, has been much
heralded as a tool to enhance border security, critics question how many terrorists it
will identify and whether it will effectively track the entry-exit of suspicious foreign
nationals.104 Some have expressed concern that most Canadians, the 6.4 million
Mexicans with border crossing cards, and the 13-18 million foreign nationals who
enter through the Visa Waiver Program (VWP) have not been part of US-VISIT, thus
establishing a variety of avenues for potential terrorists and criminals to elude
detection through US-VISIT’s biometric background checks. The recent
announcement to add foreign nationals who enter through VWP to US-VISIT may
assuage some of these concerns about the inclusiveness of US-VISIT, but does not
resolve the issue that the nations participating in VWP are not expected to meet the
program’s October 1, 2004 deadline for biometric machine-readable passports.105
While almost all observers agree that the implementation of US-VISIT has
proven to be challenging, especially at land ports of entry, many express confidence
that it will ultimately be successful. Administration officials cite the number of
aliens apprehended or denied entry as the result of the National Security Entry Exit
Registration System (NSEERS) and the Consolidated Consular Data systems
(CCD),106 two systems that US-VISIT builds on, as evidence that US-VISIT can
achieve its objectives. Recently the Administration reported that 100 aliens had
“hits” on the biometrics in US-VISIT.107
9/11 Commission Recommendations. The National Commission on
Terrorist Attacks Upon the United States (also known as the 9/11 Commission)
issued several recommendations that directly pertain to inspection policies at the
103 U.S. Congress, House Judiciary Committee, Subcommittee on Crime, Terrorism, and
Homeland Security and the Select Homeland Security Subcommittee on Intelligence and
Counterterrorism, joint hearing on Progress in Consolidating Terrorist Watchlists — The
Terrorist Screening Center (TSC), Mar. 25, 2004.
104 For a full discussion of US-VISIT, see CRS Report RL32234, U.S. Visitor and Immigrant
Status Indicator Technology Program (US-VISIT), by Lisa M. Seghetti and Stephen R. Viña.
105 See CRS Report RL32221, Visa Waiver Program, by Alison Siskin.
106 For a full discussion NSEERS, see CRS Report RL31570, Immigration: Alien
Registration, by Andorra Bruno. For a discussion of CCD, see CRS Report RL31512, Visa
Issuances: Policy, Issues, and Legislation, by Ruth Ellen Wasem.
107 U.S. Congress, House Committee on the Judiciary, Subcommittee on Immigration,
Border Security and Claims, oversight hearing on Funding for Immigration in the
President’s 2005 Budget, testimony of Seth Stodder, Feb. 25, 2004.
border.108 These recommendations underscore the urgency of implementing
legislative provisions Congress enacted several years ago, as well as suggest areas in
which Congress may wish to take further action. The specific recommendations are:
!Targeting travel is at least as powerful a weapon against terrorists as
targeting their money. The United States should combine terrorist
travel intelligence, operations, and law enforcement in a strategy to
intercept terrorists, find terrorist travel facilitators, and constrain
!The U.S. border security system should be integrated into a larger
network of screening points that includes our transportation system
and access to vital facilities, such as nuclear reactors.
!The Department of Homeland Security, properly supported by the
Congress, should complete, as quickly as possible, a biometric entry-
exit screening system, including a single system for speeding
Other 9/11 Commission recommendations, notably those related to intelligence
policy and structures, have been the focus thus far of congressional consideration and
media attention. The 9/11 Commission prepared a subsequent report that deals
expressly with immigration issues.110
Legislation implementing the 9/11 Commission recommendations (S. 2845,
H.R. 10, S. 2774/H.R. 5040 and H.R. 5024) had various provisions affecting border
inspections.111 H.R. 10, the 9/11 Recommendations Implementation Act, as amended
and passed by the House on October 8, 2004, and S. 2845, the National Intelligence
Reform Act of 2004, as amended and passed by the Senate on October 8, 2004 were
the competing bills as the 108th Congress drew to a close.
H.R. 10 as passed, S. 2845 as passed, S. 2774/H.R. 5040 and H.R. 5024 all
would hasten the development and installation of a biometric entry and exit data
system that is integrated with various databases and data systems that process or
contain information on aliens, and would apply a system of biometric identifiers
uniformly across agencies and governments. H.R. 10 as passed, S. 2845 as passed,
S. 2774/H.R. 5040 and H.R. 5024 would require the Secretary of Homeland Security
(Secretary) to develop and implement a plan to expedite the processing of registered
travelers through a single program (current registered traveler programs include
NEXUS and the Secure Electronic Network for Travelers’ Rapid Inspection
(SENTRI)). The bills would further require the Secretary to review and evaluate
108 An electronic copy of the report is available at [http://www.9-11commission.gov/].
109 For a discussion of these recommendations, see The 9/11 Commission Report, Chapter
110 U.S. National Commission on Terrorist Attacks upon the United States, Monograph on
111 For more background and analysis, see CRS Report RL32616, 9/11 Commission:
Legislative Action Concerning U.S. Immigration Law and Policy in the 108th Congress, by
Michael John Garcia and Ruth Ellen Wasem.
existing programs that expedite travel and increase research and development efforts
to accelerate the development and implementation of a single program. The bills
would also require the registered travelers program to be integrated into the entry and
exit data system and would authorize DHS to improve the security of passports and
other travel documents, including through the strengthening of security requirements
for documents that may be used to attain passports or other travel documents.
In addition, H.R. 10 as passed would expand pre-inspection programs in foreign
countries and assistance to air carriers at selected foreign airports in the detection of
fraudulent documents; would limit the President’s ability to waive general statutory
requirements for U.S. citizens traveling abroad or attempting to enter the United
States to bear a valid U.S. passport, so that such a waiver can only be exercised with
respect to U.S. citizens traveling to or from foreign contiguous territories who are
bearing identification documents designated by DHS as (1) reliable proof of U.S.
citizenship, and (2) of a type that may not be issued to an unlawfully present alien
within the United States; and would amend the present waiver authority concerning
document requirements for arriving nationals from foreign contiguous countries or
adjacent islands, so that such waivers may only be granted (in non-emergency
situations) through a joint determination by the Secretary of DHS and Secretary of
State on the basis of reciprocity, and then only if the arriving foreign national is in
possession of identification documents deemed secure by the Secretary of DHS.
The National Intelligence Reform Act of 2004 (P.L. 108-458). The
compromise version of S. 2845 that ultimately was enacted into law, included some
— but not all — of the border inspections provisions in both the House and Senate
versions of S. 2845.
Foremost, P.L. 108-458 requires accelerated deployment of the biometric entry
and exit system to process or contain certain data on aliens and their physical
characteristics. The Act also expands the pre-inspection program that places U.S.
immigration inspectors at foreign airports, increasing the number of foreign airports
where travelers would be pre-inspected before departure to the United States.
Moreover, it requires individuals entering into the United States (including U.S.
citizens and visitors from Canada and other Western Hemisphere countries) to bear
a passport or other documents sufficient to denote citizenship and identity.
The Act requires improvements in technology and training to assist consular and
immigration officers in detecting and combating terrorist travel. It (1) establishes the
Human Smuggling and Trafficking Center, which includes an interagency program
devoted to countering terrorist travel; (2) requires the Secretary of Homeland
Security, in consultation with the Director of the National Counter Terrorism Center,
to establish a program to oversee DHS’s responsibilities with respect to terrorist
travel; and (3) establishes a Visa and Passport Security Program within the Bureau
of Diplomatic Security at the Department of State.
Adequacy of Infrastructure. The FY2000 Treasury-Postal Appropriations
Act (P.L. 106-58) required Customs, in consultation with the General Service
Administration (GSA) and the federal inspection service agencies, to assess
infrastructure needs on the northern and southwestern borders of the United States
This study identified 822 projects at a projected cost of approximately $784
million.112 Meanwhile, the Transportation Equity Act for the 21st Century (P.L. 105-
178) established the Coordinated Border Infrastructure (CBI) program to “improve
the safe movement of people and goods” across the borders with Canada and Mexico.
Although CBI allows for funding of non-transportation projects, financing projects
aimed at customs and immigration enforcement functions at the borders has proven
controversial because many supporters of CBI assert it should be used for
The current infrastructure at most U.S. ports of entry, many warn, is not
sufficient to accommodate the demands of the automated entry and exit data system,
US-VISIT. Those concerned about infrastructure point out that in order to record the
departure of every alien leaving the United States through a land port, there need to
be sufficient lanes, staff, and resources. According to some observers, additional
lanes may be necessary at many land ports of entry to accommodate the large number
of individuals seeking entry into the United States. Some also express concern that
the current infrastructure at air ports of entry may not be sufficient to accommodate
US-VISIT when it is fully operational. Although federal immigration inspectors have
a presence at selected airports, the space that is occupied by them is not federally
owned. Airports have limited space and may not have additional resources to fund
new construction. Some contend that this could lead to significant delays as travelers
try to make their way through ports of entry. Others maintain that as the technologies
used at the border become more sophisticated and efficient, concerns about long lines
and delays will abate. Infrastructure limitations, they assert, will be resolved by the
time US-VISIT is fully implemented.114
Inter-Agency and Inter-Department Coordination. Cooperation between
CBP and other agencies is critical to the success of CBP’s mission. This necessity
is highlighted by the recent spate of new regulations that have been promulgated by
several agencies charged with border security related activities. One example
concerns advance notification requirements. While CBP is completing its
rulemaking regarding electronic advanced manifest submissions, the FDA has
promulgated advance notification regulations pertaining to certain food imports.115
The FDA advance notice rules have different time frames from those being
considered by CBP. The FDA rules require electronically filed and complete notice
before the shipment arrives at the first U.S. port:
112 U.S. Customs Service, Port of Entry Infrastructure Assessment, overview, p. 1.
113 See CRS Report RS20790, The Coordinated Border Infrastructure Program: Issues for
Congress, by Robert S. Kirk.
114 See CRS Report RL32234, U.S. Visitor and Immigrant Status Indicator Technology
Program (US-VISIT), by Lisa M. Seghetti and Stephen R. Viña.
115 Department of Health and Human Services, Food and Drug Administration, Prior Notice
of Imported Food Under the Public Health Security and Bioterrorism Preparedness Act of
!no more than five days, and no less than eight hours for food
arriving by water;
!four hours for food arriving by air or by rail; and
!two hours for food arriving by truck.
At this time, it is unclear as to how the two sets (FDA and CBP) of advanced notice
requirements will be integrated. The FDA rules indicate that importers or their
agents must submit their advance notice using CBP’s ABI or ACS systems. Those
food importers without ABI or ACS access will use FDA’s Prior Notice (PN) System
Interface. According to the FDA rule, the Commissioners of FDA and CBP will
publish a plan detailing the integration and partial harmonization of these rules.
Another example of the importance of inter-agency cooperation is evidenced in
the various federal entities that have the responsibilities for aliens who seek asylum
in the United States. Duties are spread across DHS’s Coast Guard (interdiction),
Customs and Border Protection (apprehensions and inspections), Immigration and
Customs Enforcement (detention), Citizenship and Immigration Services
(determination of credible fear) and DOJ’s Executive Office for Immigration Review
(asylum and removal hearings). While the lead agencies for setting asylum standards
and policy are USCIS and EOIR, CBP inspectors are quite often the first point of
contact with arriving asylum seekers.
Training of Personnel. As is evident from the discussions of the
agricultural, customs, and immigration inspections, the CBP inspector must learn a
set of complex laws and procedures as well as develop a keen eye for violators and
violations of the law.
Some argue that it is too much to expect that those working in primary116
inspections are knowledgeable of the various types of travel documents, as well as
when a foreign national is required to have a travel document.117 Some express
concern that the ability to recognize these documents and differentiate fraudulent
documents from legitimate ones is learned only from experience and training. The
customs inspector is attuned to targeting travelers and goods from a cargo
perspective, a skill some argue, that is quite distinct from an immigration inspection.
That the inspector must also be facile in accessing numerous data systems and
databases has raised further questions about the adequacy of training.118
Specific concerns are being raised that primary inspectors in CBP from customs
and immigrations backgrounds may not have sufficient agricultural training. Some
116 For example, different countries have different passports and DOS issues several
different types of visas.
117 For example, CBP inspectors must know that Canadian nationals are exempt from
passport and visa requirements, Visa Wavier Program country participants do not need a
visa and certain Mexican nationals may use a Border Crossing Card instead of a passport
or a visa to enter the United States.
118 Data systems discussed previously in this report that inspectors use include APIS, IBIS,
INPASS NAILS, NIIS, NSEERS, and SEVIS, (all immigration); and ABI, ATS, AMS,
BRASS, CAFES, FAST, PAPS, and TECS (all customs); and WADS (agriculture).
argue that current CBP training in agriculture for new inspectors may be inadequate.
Former APHIS inspectors had required science and biology backgrounds, combined
with extensive pest and disease training. Many stakeholders in the agricultural
community are asking whether CBP administrators and front line inspectors will pay
enough attention to agricultural inspections.
Others assert that these concerns about training needs are exaggerated and
observe that CBP has a new 14-week training course for inspectors. They point out
that the immigration and customs inspectors have been cross-designated for years and
are already familiar with the laws, procedures, and databases. They also observe that
agricultural inspections will remain specialized for the time being and will occur
during secondary inspections.
Database Technology. Critics of the current technological infrastructure
contend that it poses a security risk. The Enhanced Border Security and Visa Entry
Reform Act of 2002 (P.L. 107-173) mandated the integration of immigration
databases. In addition to integrating data systems that contain federal law
enforcement and intelligence information relevant to making decisions on visa
admissibility and the removal of aliens, P.L. 107-173 also mandated that immigration
databases be integrated with other relevant data systems. The integration of law
enforcement and intelligence data systems and databases with immigration data
systems and databases continues to be a concern and is considered critical for the
CBP inspector to adequately screen individuals seeking entry to the United States.
Many assert that the need for all agencies involved in admitting aliens to share
intelligence and coordinate activities is essential for U.S. immigration policy to be
effective in guarding homeland security. Some maintain that the reforms Congress
made in the mid-1990s requiring all visa applicants to be checked in the “look out”
databases were inadequate because the databases across the relevant agencies were
not interoperable and the various agencies were territorial with their data. They
maintain that, in the long run, the most efficient and effective guard against the entry
of aliens who would do us harm is an interagency and inter-departmental database
that is accessible in “real time” to consular officers, CBP inspectors, and key law
enforcement and intelligence officials.
Others point to the cost, time, and complexity of developing interoperable
databases. They cite the difficulty thus far in determining what biometric identifiers
are most appropriate for screening aliens.119 They point out competing technologies
of the existing databases in which various key agencies have already heavily
invested. Some maintain that success of the interoperable database technology
depends on 100% inclusion of aliens applying for visas and seeking admission, but
that the sheer scope of such a system poses “real time” implementation issues. They
also warn that if intelligence data become too accessible across agencies, national
security may actually be breached because sensitive information may be more likely
119 U.S. Congress, Senate Committee on the Judiciary Subcommittee on Technology,
Terrorism and Government Information, Border Technology: Keeping Terrorists Out of the
United States — 2003, hearing, Mar. 12, 2003.
to fall into the wrong hands. Privacy concerns arise as well as the data sharing and
Meanwhile, CBP has been engaged in a long-term effort to acquire a new
comprehensive database system that dates back to the U.S. Customs Service. The
Automated Commercial Environment (ACE) will replace ACS which has been
characterized as outmoded and inefficient.120 Difficulties with ACS are evident in
the different levels of automation available for different modes of transportation.
The most recent evidence of the difficulties raised by uneven automation can be seen
in the different rollout deadlines for the new mandatory advance electronic manifest
rule proposed by CBP. The lack of consistent automation, particularly for
commercial trucks, means that several different programs will have to be utilized
(FAST, PAPS, BRASS etc.) until ACE becomes functional. The ACE strategy is
developing commercial automation protocols and procedures so that expeditious
tracking and more effective screening and monitoring can develop over time.
CBP is also working with other government agencies on developing the
Integrated Trade Data System (ITDS). ITDS will be an interconnected database of
all government agencies involved in the trade process, allowing users to submit data
to one agency database available to other agencies. Questions remain however,
because ACE and ITDS were envisioned prior to the merging of primary border
agencies in DHS. Issues such as how ACE and ITDS will be incorporated into the
larger DHS strategy, and how they will interact with other existing databases, remain
Fourth Amendment. Through the laws of the legacy agencies, inspectors
have unique statutory authorizations to inspect and search individuals and
merchandise at the border, as discussed above. Beyond these specific authorities,
however, inspections at the border must still adhere to the protections afforded by the
Constitution. The scope of these protections may be more limited at borders and
ports of entry than in the interior of the United States. The scope of protections also
might vary with the particular laws being enforced.
A related constitutional matter that arises in this realm is “racial profiling.”
Racial profiling is the practice of targeting individuals for law enforcement purposes
based on their race or ethnicity in the belief that specific minority groups are more
likely to engage in certain unlawful behaviors. Several courts have considered
constitutional ramifications of the practice, as an “unreasonable search and seizure,”
and more recently, as a denial of equal protection of the laws.121 In the past, some
120 U.S. General Accounting Office, Testimony before the House Committee on Government
Reform Subcommittee on Government Management, Information and Technology, U.S.
Customs Service: Observations on Selected Operations and Program Issues, T-
GGD/AIMD-00-05 (Washington, Apr. 20, 2000), p.6.
121 For more information on racial profiling, see CRS Report RL31130, Racial Profiling:
Legal and Constitutional Issues, by Charles V. Dale. Congress has also statutorily
have accused Customs inspectors of racial profiling.122 Others maintain that it is
difficult to discern where legitimate targeting based on risk management principles
crosses the line into racial profiling. In the immigration context, the constitutionality
of making distinctions on grounds of race or nationality is unsettled.123 With respect
to immigration inspections conducted near, but otherwise beyond the actual physical
border, however, the case law seems to suggest that race alone cannot justify a stop
by a roving patrol,124 but can be more determinative when questioned at fixed
Fifth Amendment. For purposes of procedural due process under the Fifth
Amendment, immigration law has long made a distinction between those aliens who
have come to our shores seeking admission and those who are within the United
States after an entry, irrespective of its legality. In the latter instance, the Supreme
Court has recognized additional rights and privileges not extended to those in the126
former category, who are merely “on the threshold of initial entry.” Indeed,
Supreme Court jurisprudence still questions whether the Constitution applies at all
to aliens seeking entry at the border or a port of entry, particularly in determining an
alien’s right to be here. With respect to due process in the immigration context,
prohibited certain discriminatory actions and has made available various remedies to victims
of such discrimination. See Title VI of the Civil Rights Act of 1964; 42 U.S.C. §1983; 42
122 In 2000, GAO found that Customs agents were nine times as likely to x-ray Black female
citizens after frisking them than White female citizens, but Black female citizens were less
than half as likely to be carrying contraband as White female citizens. U.S. General
Accounting Office, U.S. Customs Service: Better Targeting of Airline Passengers for
Personal Searches Could Produce Better Results, GAO/GGD-00-38 (Washington, Mar.
2000), p. 2. For follow-up on procedural reforms, see U.S. Department of Treasury, Office
of Inspector General, Trade and Passenger Processing: Customs Personal Search Policies,
Procedures, and Training Appear Reasonable, OIG-CA-02-003 (Apr. 12, 2002).
123 See also Immigration Law and Procedure §9.08 at 9-35 (1996).
124 United States v. Brignoni-Ponce, 422 U.S. 873 (1975) (determining that race, by itself,
could not support the reasonable suspicion necessary for a roving immigration stop).
Roving patrols often take place at night on seldom-traveled roads and generally consist of
responses to brief questions regarding citizenship and suspicious behavior and possibly the
production of a document evidencing a right to be in the United States; see also Unitedth
States v. Montero-Camargo, 208 F.3d, 1122, 1135 (9 Cir. 2000) (concluding that Hispanic
appearance is of such little probative value that it may not be considered as a relevant factor
where particularized suspicion is required for a border patrol stop).
125 United States v. Martin-Fuerte, 428 U.S. 543 (1976) (upholding stops of persons at fixed
border checkpoint near the Mexican border that were partially based on race). The Court
concluded that the government may briefly detain motorists at a permanent border
checkpoint to inquire into their residence status and ask them to explain suspicious
circumstances without individualized suspicion because fixed checkpoints provide visible
manifestations of the field officer’s authority and ensure that the appropriate constitutional
safeguards are maintained. Id. at 566-67.
126 Leng May Ma v. Barber, 357 U.S. 185, 187 (1958) (articulating the “entry fiction”
therefore, aliens seeking admission to the United States must generally accept
whatever statutory rights and privileges they are granted by Congress.127 In cases
where the arriving alien is suspected of being a terrorist, the alien may be summarily
excluded by the regional director with no further administrative right to appeal. This
policy is especially controversial if a suspected terrorist is returned to a country in
which the person is “more likely than not to be tortured.”128
As Congress views border inspections through the lens of homeland security,
a series of questions emerge. While not an exhaustive set, the selected questions
below express a few of the cross-cutting concerns.
!Are the inspections reforms aimed at enhanced border security that
Congress enacted being implemented with sufficient urgency?
!When the new technologies are fully implemented, such as US-
VISIT at land ports of entry, will people and goods move
!If additional resources and infrastructure are needed to secure and
facilitate border inspections, should fees be raised or funds
appropriated, or should it be a combination of both?
!Is an inspections system geared up to protect against terrorism still
versatile enough to also protect the nation against travelers with
contagious diseases such as Severe Acute Respiratory Syndrome
(SARS) or flexible enough to recognize bona fide asylum seekers?
!Should any of the underlying laws be amended to further tighten or
expand the inspections process (e.g., mandating physical inspections
of a greater percentage of cargo or requiring inspections of certain
types of shipments)?
!Should the underlying laws be amended to reflect the reorganization
Striking the balance of facilitating legitimate travel and trade with protecting against
foreign terrorism and other phenomena that would do us harm will remain a daunting
127 Jean v. Nelson, 727 F.2d 957, 968 (11th Cir. 1984). The INA contains a number of
provisions that collectively guarantee limited due process protections for excludable aliens.
Moreover, procedural safeguards in deportation proceedings are provided by DOJ
128 For further discussion, see CRS Report RL32276, The U.N. Convention Against Torture:
Overview of U.S. Implementation Policy Concerning the Removal of Aliens, by Michael
John Garcia, pp. 10-11.
Appendix A: Immigration Inspection Workload, FY2002
Type of activityPercentage of time spent on activity
Escorting Aliensless than 1%
Admi nistrative 7%
Source: CRS analysis of INS workload data.
Note: Detail may not add to 100% due to rounding.
Appendix B. Selected Immigration Inspections Data
Number ofNumber ofNumber ofNumber of
automated inspections expedi t e d w i t hdraw n
inspections def erred removals applications
Year(in millions)(in thousands)(in thousands) (in thousands)
Source: CRS analysis of INS workload data.
Appendix C. Top 10 U.S. Container Ports CY1998-CY2002a
(thousands of TEUs)
P ort 1998 1999 2000 2001 2002
Charleston 1,035 1,170 1,246 1,156 1,197
Oakl and 902 915 989 960 979
Norfolk 793 829 850 885 982
Seattle 976 962 960 824 850
Sava nnah 558 624 720 813 1,014
Houston 657 714 733 778 851
Miami 602 618 684 717 752
All other ports3,0053,1063,1242,9933,233
Total top 1012,55213,45914,81415,08916,496
Top 10 % of total8181838384
Total all ports15,55716,56517,93818,08219,729
Source: CY1995-CY2001 from Bureau of Transportation Statistics U.S. International Trade and
Freight Transportation Trends, Table 11, p. 32 (Washington: Bureau of Transportation Statistics,
2003), CY2002 CRS analysis of Maritime Administration (MARAD) published data.
Note: Data includes imports, exports, and transshipments (transshipments do not originate and are
not destined for the United States, but merely pass through it from one foreign country to another).
a. TEUs are 20-foot equivalent units, one 20-foot container equals one TEU, while one 40-foot
container equals two TEUs.
Appendix D. Customs Workload Data FY1998-FY2002
1998 1999 2000 2001 2002
Type of conveyance (millions)
Personally operated vehicles121.30123.20127.10129.60118.10
V e ssels 0.20 0.22 0.21 0.22 0.21
T r ucks 10.10 10.80 11.60 11.20 11.20
Vessel cargo containers5.105.305.805.707.30
Railcars 1.60 1.90 2.20 2.30 2.40
Passengers by type of port (millions)
Total entry summaries (millions)19.721.723.623.724.9
Value of imports (billions)$955$1,179$1,162$1,175$1,183
Duties on imports (billions)$19.1$19.1$20.5$19.7$20.0
Source: U.S. Customs Service, Congressional Budget Justifications, FY2001-FY2003.
Appendix E. Customs Narcotics Seizures FY1998-FY2002
1998 1999 2000 2001 2002
Thousands of pounds157.5160.4150190.9170.5
Number of seizures2,3642,5092,4892,6982,536
Thousands of pounds9561,1481,2921,5041,374
Number of seizures15,54515,69914,86114,58713,407
Thousands of pounds220.127.116.11.1
Number of seizures1,049911859916971
Source: U.S. Customs Service, Congressional Budget Justifications, FY2001-FY2004.
Appendix F. U.S.-Canada Land Border: Number of Truck or Railcar Crossings (CY2000-CY2002)
Truck 2000 Truck 2001 Truck 2002
7,048,128Total U.S.-Canadian border6,776,909Total U.S.-Canadian border6,915,973
ive gateways4,714,339Total top five gateways4,448,865Total top five gateways4,567,704
1,769,389Detroit, MI1,642,042Detroit, MI1,670,565
Niagara Falls, NY1,198,085Buffalo-Niagara Falls, NY1,123,971Buffalo-Niagara, NY1,208,095
839,200Port Huron, MI828,802Port Huron, MI907,729
516,829Blaine, WA471,731Blaine, WA410,256
plain-Rouses Point, NY390,836Champlain-Rouses Point, NY382,319Champlain-Rouse Pt., NY371,059
Rail 2000 Rail 2001 Rail 2002
iki/CRS-RL323991,594,837Total U.S.-Canadian border1,779,345Total U.S.-Canadian border1,830,259
s.orive gateways1,169,034Total top five gateways1,277,982Total top five gateways1,310,729
leak425,211Port Huron, MI449,299Port Huron, MI429,918
://wiki237,968Detroit, MI304,591Detroit, MI293,300Niagara Falls, NY181,462International Falls, MN205,430International Falls, MN238,515
171,551Portal, ND168,137Portal, ND199,637
152,842Buffalo-Niagara Falls, NY150,525Buffalo-Niagara, NY149,359
U.S. Department of Transportation, Bureau of Transportation Statistics, special tabulation, July 2003. Based on the following primary data source: U.S. Department of
ury, U.S. Customs Service, Office of Field Operations, Operations Management Database (Washington, DC), 2002, published in U.S. Department of Transportation, Bureau of
sportation Statistics, National Transportation Statistics 2002, BTS02-08 (U.S. GPO: Washington, DC), Dec. 2002.
Truck data represent the number of truck crossings, not the number of unique vehicles. Data are for both loaded and empty trucks. Rail data includes both loaded and unloaded
Appendix G. U.S.-Mexico Land Border: Number of Truck or Railcar Crossings CY2000-CY2002
Truck 2000 Truck 2001 Truck 2002
ican border4,525,579Total U.S.-Mexican border4,304,959Total U.S.-Mexican border4,426,593
ive gateways3,575,207Total top five gateways3,398,053Total top five gateways3,544,815
X1,493,073Laredo, TX1,403,914Laredo, TX1,441,653
X720,406Otay Mesa/San Ysidro, CA708,446Otay Mesa/San Ysidro, CA731,291
Mesa/San Ysidro, CA688,340El Paso, TX660,583El Paso, TX705,199
o, TX374,150Hidalgo, TX368,395Hidalgo, TX390,282
nsville, TX299,238Calexico East, CA256,715Calexico East, CA276,390
iki/CRS-RL32399Rail 2000 Rail 2001 Rail 2002
g/wican border571,825Total U.S.-Mexican border582,652Total U.S.-Mexican border602,322
s.orive gateways562,710Total top five gateways572,034Total top five gateways591,255
leakX243,369Laredo, TX273,935Laredo, TX296,782
://wikinsville, TX139,803Brownsville, TX101,787Eagle Pass, TX98,236
httple Pass, TX94,113Eagle Pass, TX93,108Brownsville, TX96,591
ales, AZ50,602Nogales, AZ58,667Nogales, AZ52,236
X34,823El Paso, TX44,537El Paso, TX47,410
U.S. Department of Transportation, Bureau of Transportation Statistics, special tabulation, July 2003. Based on the following primary data source: U.S. Department of
ury, U.S. Customs Service, Office of Field Operations, Operations Management Database (Washington, DC), 2002, published in U.S. Department of Transportation, Bureau of
sportation Statistics, National Transportation Statistics 2002, BTS02-08 (GPO: Washington, DC), Dec. 2002.
Truck data represent the number of truck crossings, not the number of unique vehicles. Data are for both loaded and empty trucks. Rail data includes both loaded and unloaded
Appendix H. Agricultural Inspections of
International Passengers, Cargo, and Mail
Inspections Interceptions Violations
year Number Number P ercent Number P ercent
1998 32,383,879 1,055,191 3.3 16,792 0.05
1999 28,169,544 947,618 3.4 13,769 0.05
2000 28,038,026 1,044,174 3.7 15,671 0.06
2001 32,807,117 1,039,265 3.2 14,961 0.05
2002 33,793,642 890,288 2.6 12,775 0.04
Pre-clearance (of passengers)
1998 10,433,562 200,570 1.9 na na
1999 10,681,208 608,848 5.7 na na
2000 11,125,241 199,440 1.8 na na
2001 11,144,465 204,430 1.8 na na
2002 10,681,955 199,680 1.9 na na
Cargo (units: bill of lading)
1998 726,311 10,589 1.5 131 0.02
1999 691,685 20,899 3.0 164 0.02
2000 837,581 17,470 2.1 266 0.03
2001 878,138 15,479 1.8 312 0.04
2002 953,042 13,071 1.4 453 0.05
International mail (number of pieces)
1998 447,739 14,955 3.3 7,410 1.7
1999 512,259 13,112 2.6 2,246 0.4
2000 238,321 12,513 5.3 3,545 1.5
2001 434,987 16,524 3.8 1,537 0.4
2002 417,118 34,079 8.2 1,317 0.3
Source: USDA-APHIS, special tabulations of work accomplishment data.
na = not applicable.
Appendix I. Agricultural Inspections of
International Modes of Conveyance
Inspections Interceptions Violations
year Number Number P ercent Number P ercent
1998 62,042 5,754 9 399 0.6
1999 87,194 5,272 6 2,796 3.2
2000 59,913 11,639 19 1,635 2.7
2001 59,879 8,545 14 276 0.5
2002 64,126 9,399 15 2,105 3.3
1998 377,633 344,898 91 89 0.02
1999 387,513 275,209 71 101 0.03
2000 391,275 256,918 66 61 0.02
2001 407,979 241,786 59 111 0.03
2002 422,940 204,176 48 142 0.03
Vehicles, buses, rail cars
1998 1,792,655 261,651 15 916 0.05
1999 1,607,208 256,578 16 1 0.00
2000 1,794,354 280,495 16 4 0.00
2001 2,022,970 280,261 14 9 0.00
2002 2,879,399 340,827 12 268 0.01
Source: USDA-APHIS, special tabulations of work accomplishment data.