What legaWhat are the legalities around programs like US-VISIT?

May 16, 2005 10:53 AM

Being a non-US citizen that has family living in the continental US I have noticed that border traversal has been getting exceedingly difficult and more intrusive. However, the US-VISIT program seems to take it a little far (IMO).

Now, I've singled out US-VISIT since, having just experienced it on a recent stopover, I was simply blown away by the privacy implications of this program and others like it. If you did not read the link, all non-US citizens (except Canadians) are fingerprinted and photographed on entry into the US.

You cannot refuse to participate or you will be refused entry (obviously) and I cannot imagine that process being comfortable for anyone. There are no lawyers present, and interpreters are not available for all languages.

Not being 100% familiar with US immigration laws and/or Constitutional law, is this actually legal?

posted by purephase to law & government (20 comments total)

Sorry for the title mess-up.
posted by purephase at 11:19 AM on May 16, 2005

Well, they brought this in about a year ago, if I remember correctly. I'm a British citizen who lives in the US and they've been photographing and fingerprinting me for a while now. And me a citizen of the US's key ally in the "War On Terror"! Where is the gratitude?

Legal? By whose definition? As I understand it this grew out of the Patriot Act and as far as I understand that, pretty much anything the Bush junta decides ought to be legal, becomes legal. So long as it's, you know, for the "War On Terror".
posted by Decani at 11:26 AM on May 16, 2005

Speaking as a non-US citizen living in the US, I have to say -- sure, it's legal.

The US is not required by any law or international convention to permit you to enter the country. If they *do* deign to allow you to enter, they can do so with as many strings attached as they like. If they decided that in order to enter, you have to learn to do a handstand while balancing a bowling ball on each foot, then they're perfectly within their rights.

I don't deny that all of this will probably hurt the US tourist trade (inbound, not outbound), but then that's not really the point of the whole exercise.

On re-reading your question (and getting some of my annoyance at the WaR on Tezz0x0rr!!1! out of the way), I think that before you're granted entrance to the country, you aren't actually subject to the laws of that country -- you're a non-citizen in international waters, as it were, and so Constitutional protections don't apply.
posted by 5MeoCMP at 11:31 AM on May 16, 2005

The Constitution doesn't guarantee any rights to non-citizens--that kind of thing is the result of treaty negotiation.

Immagration laws exist mostly to keep people out, not to make them feel welcome. That's more or less true everywhere, but especially true in the USA post 9/11.

Even before 9/11, there has been outlandish treatment of non-citizens. I recall one case of a man who had been living as a resident alien in the USA since childhood (originally from South America somewhere, I think). He was an adult, had a (US-citizen) wife and kid, and got nailed for buying pot or something like that. Deported--to a country where he didn't even speak the language.
posted by adamrice at 11:36 AM on May 16, 2005

Yes.
posted by ikkyu2 at 11:40 AM on May 16, 2005

This has been around for a while, so any questions of legality must have been asked and answered by now. As a H1B holder in NY, in the last 12 months I've been fingerprinted & photographed at the US Embassy in Dublin, twice at US Immigration in Dublin Airport and twice at US Immigration at Toronto Pearson Airport. Each time I've been barked at for my fingers being "too dry".

Now we need to all change our passports too, don't we, to match US requirements.
posted by dublinemma at 12:15 PM on May 16, 2005

This doesn't really address the question but just to balance the discussion so far out : I'm a US citizen by birth and I've been living in London, England since mid 1997.

When I first came here on a three year work permit I had a little green Police booklet with my picture in it (no fingerprints though). I had to get this booklet stamped out by the Immigation guy/gal whenever I entered or left the country, in addition to my US Passport with the work permit.

Also I was in a corporate flat for the first three years which meant I moved twice (from St. Johns Wood after six weeks to Camden Town where I stayed for three years). Each time I had to visit the local cop shop to get an officer to stamp it, after making details of my new address in some private log he maintained.

They abolished this in 2000 or so for US Citizens (although I still have my little green book), but I think the British still reqiure citizens of other countries to maintain these books and report to the police from time to time. So it's not just the US.
posted by Mutant at 12:23 PM on May 16, 2005

adamrice: The legal authority for deportations of non-citizen criminals comes from the 1996 immigration reform act. It is true, however, that before 9/11 the immigration courts (yes, they have separate courts) and the INS-cum-BCIS exercised greater flexibility in their judgements.

And indeed, US VISIT itself derives originally from the same 1996 legislation, but progress had been glacial prior to 9/11.

EPIC has a useful information page.
posted by dhartung at 12:27 PM on May 16, 2005

fingerprinted & photographed, too: looking forward to donating urine and semen samples in the future.

the new program is a drag -- the solution, clearly, is to drastically reduce the number of one's trip the USA (I know I did, unless it's necessary for work reasons). as soon as the dollar remains this weak, I am sure that tourism from the euro zone at least won't decrease that much. when/if the dollar comes back to life and the cost of hotels/etc becomes less convenient, I am sure the fingerprint/photo/people barking orders at you/very long queue thing will have some effect on tourism revenue for the US
posted by matteo at 12:27 PM on May 16, 2005

land of the free, home of the motherfuckng brave.
posted by yonation at 12:49 PM on May 16, 2005

Sure it's legal; I don't know the specific statute setting it up but you could find out in an afternoon.

While it's intrusive and obnoxious, I really don't think it's nearly as horrific as people are making out -- AFAIK, all they're doing is making sure that the photo and fingerprint associated with the passport now are the same as they were last time. Or, eventually, that the (eigen?)print and (eigen?)face are the same as the ones crypto'd on the passport. Still, anything that's as mass-oriented as that is a just plain dumb idea for the usual Bayes' Rule reasons.

I recall one case of a man who had been living as a resident alien in the USA since childhood (originally from South America somewhere, I think). He was an adult, had a (US-citizen) wife and kid, and got nailed for buying pot or something like that. Deported--to a country where he didn't even speak the language.

The moral of that story is that if you're a resident alien in a country and citizenship is on offer, for God's sake take it (unless maybe your home country will pitch a hissy and kick you out).
posted by ROU_Xenophobe at 1:11 PM on May 16, 2005

The Constitution doesn't guarantee any rights to non-citizens--that kind of thing is the result of treaty negotiation.

The US Constitution does guarantee certain protections to "aliens". IAAL but a lazy one so don't expect me to explain it in depth (or, truthfully, even to be correct).

Examples:
States cannot deny welfare benefits, Graham v. Richardson, 403 US 365

States may not prevent resident aliens from practicing law, In re Griffith, 413 US 717

States may not bar aliens from holding positions in the state civil service, Sugarman v. Dougall, 413 US 634.

At least that what it says in my 1994-95 edition of the Emanuel outline on Con Law (Told you I'm lazy)
posted by Carbolic at 1:58 PM on May 16, 2005

The Constitution doesn't guarantee any rights to non-citizens--that kind of thing is the result of treaty negotiation.

Well, based on a little more research (arguably, I should have done it before posting the question) aliens are in fact afforded certain rights under the Constitution once they have been admitted. According to this site, aliens are "generally" protected by the following Amendments - First, Fourth, Fifth, and Fourteenth. I guess fingerprinting and photographing aliens is not covered under the unreasonable search and seizure protection provided by the Fourth Amendment (which, I can sort of understand).

However, the only direct mention that I could find regarding fingerprinting was the Alien Registration Act (passed in 1940) in that "Congress provided that all aliens in the United States, fourteen years of age and over, should submit to registration and finger printing and willful failure to comply was made a criminal offense against the United States."

So, basically, Congress can do whatever it wants (or deems necessary) regarding alien's entering the country even if it violates certain arguable constitutional freedoms provided to admitted aliens. 5MeoCMP was most likely correct, prior to being admitted aliens have no rights in the US (or any other country with similar federal/national legislation -- which I suspect are many).

Just weird to see happen is all.
posted by purephase at 2:26 PM on May 16, 2005

Is this a real question or do you just want to say that it is weird to see it happen? If so, duly noted.
posted by grouse at 4:51 PM on May 16, 2005

not sure what Mutant is describing, but my partner (chilean) stayed in the uk for many years, including moving address several times, and never had to do any of that.
posted by andrew cooke at 5:22 PM on May 16, 2005

Is this a real question or do you just want to say that it is weird to see it happen? If so, duly noted.

Both. IANAL and I was hoping that someone that knew the situation a little better than what Google could turn up would explain it because it was an eye-opening experience.
posted by purephase at 5:44 PM on May 16, 2005

As even US citizens have little to no data privacy protection if in the USA, my question would be how much of this information will end up in the private sector? I'm also curious as to how much data-sharing there is within government agencies.

Eg, if a detective has some crimescene prints that they want to identify from the police database of criminal's prints, are our prints included in the database along with the criminals, just begging to get some false-positive action?
posted by -harlequin- at 12:56 AM on May 17, 2005

Exactly! Aliens are also covered by due process (at least according to the article I linked above) but with easy access to their fingerprints and mug-shots, that were obtained without legal counsel and without a crime being committed, I simply cannot believe that this information would not be used in some way.
posted by purephase at 4:53 AM on May 17, 2005

Entry requirements? You're at their mercy.

I am, however, curious about the new US-VISIT exit requirements in place at most of the major international hub airports. That's right, you apparently need to be photographed and finger-scanned in order to leave the US.

So what happens if you say no? Do they force you to stay?

I presume they let you out all the same, but won't let you back in, as this site suggests, but I'd be curious as to the constitutionality of forcing people through screening on the way out, as opposed to the way in.

The moral of that story is that if you're a resident alien in a country and citizenship is on offer, for God's sake take it

Or not, as the case may be. I want to be able to wave my maroon passport and claim sanctury at the US Embassy, thank you, should the need arise.
posted by holgate at 7:11 AM on May 17, 2005

This came out today and covers some of the topics running through this thread.
posted by peacay at 9:52 AM on May 17, 2005