William Duke

Rite of Passage

Even with sophisticated biometrics, immigration officials struggle to balance enforcement and privacy protections.

Since the days of Ellis Island, the identity of foreigners has been documented and sometimes changed upon arrival in America. Turn-of-the-century immigration officers checked ship manifests or simply translated the names provided by non-English speaking newcomers. 

Post-Sept. 11 Homeland Security Department officials are more cautious. Authorities check myriad documents, biometrics and various interagency databases to protect lawful immigrants, and to deny entry to illegal aliens, criminals and terrorists. 

 Still, some manage to fake out today’s more sophisticated immigration system.

As the cache of personal data grows, so does the risk that con artists will exploit it for financial gain and federal authorities will misuse it, critics say. Already, legal immigrants have been detained because of identity mismatches, work visa candidates have been targeted by identity thieves, and insiders have stolen immigration records to sell fake passports. 

Federal officials maintain they are trying to verify the identities of foreigners without compromising personal information. Fingerprints and iris scans are among the more reliable ID verification technologies. Portable DNA screening devices may be on the horizon. Officials say they take care to safeguard the databases that house the sensitive data collected.

Nonetheless, the potential for mission creep with multiple ID systems in play has immigrant rights groups and privacy activists skittish. Conversely, critics of enforcement operations say the government doesn’t collect enough data to confirm legal status. In August, for example, more than 1 million young undocumented foreigners became eligible to apply for a two-year reprieve from deportation solely by submitting required paperwork and paying the processing fees. 

U.S. Citizenship and Immigration Services Director Alejandro Mayorkas says he has prioritized fraud detection and counterterrorism efforts since taking office in 2009. “I determined we must enhance the emphasis on quality in our adjudicative approach,” he told the House Judiciary Subcommittee on Immigration Policy and Enforcement in February. “We strengthened the international exchange of threat information, including biometrics . . . new vetting protocols subject refugee applicants to more rigorous screening against a number of security databases to ensure they are eligible for refugee status and do not pose a threat to national security or public safety.” 

The biometrics and number of security databases, however, create a gold mine for identity thieves. The Labor Department, for instance, makes public certain forms employers submit for foreigners they want to sponsor for H-1B work visas. Immigration attorneys say scammers could be using this and other online personal data for spear phishing campaigns designed to sell sham documents to foreigners or con them into paying bogus USCIS fines. Immigrants are especially vulnerable to identity and financial theft because their livelihood is tied to paying fees and submitting personal information to stay in the United States. 

Employment Scams

In July, Labor attracted criticism again when it sought comment on plans to collect even more details on job candidates, including name, birthdate, where the immigrant would be working, and information about wages. “The more personally identifiable information that you put in the public realm the greater risk of identity fraud,” says Blake Chisam, former senior counsel on the immigration subcommittee. Foreigners are reluctant to report ID theft to authorities because many distrust law enforcement. 

The Labor Department is still reviewing input on proposed modifications to work visa forms and expects to issue a draft form for further public comment. A Labor official says the potential changes “are intended to enhance the department’s integrity review and to ensure accuracy and completeness.  The department will comply with all laws and regulations concerning the disclosure of confidential information.” 

Chisam, now a partner at immigration law firm Fragomen, Del Rey, Bernsen and Loewy, says rights advocates have filed reports with USCIS about foreign nationals who have received calls from swindlers. He described situations in which a purported government official claimed, for example, “Your I-94 immigration form number is [XYZ]. We at the agency believe there is a problem and you need to file an additional fee to [some country] by Western Union.” 

USCIS officials say they are aware of websites pulling similar stunts that offer bogus job opportunities to foreign workers. The supposed employers hosting these sites inform applicants of certain immigration fees they have to pay. After the money is transferred, the applicant never hears from the “employer” again and the website goes dark. USCIS is advising foreigners on how to avoid such scams through a Web page called the Wrong Help Can Hurt. But some say the remedy is not to collect less information because that also could harm public safety. Critics of USCIS’ Deferred Action for Childhood Arrivals program complain that young illegal immigrants aren’t required to undergo biometric ID checks. The initiative relies on what opponents say is a bunch of forgeable papers—birth certificates, school records, immigration forms, insurance policies and other affidavits. 

“To a certain extent, when you are dealing with these deferred populations, you are dealing with a population that you cannot verify. You are accepting fraud into the system automatically,” says Janice L. Kephart, director of national security policy for the Center for Immigration Studies, an organization that favors limiting immigration. 

Document Peddlers

Citizens concerned about illegal immigrants say the Obama administration’s deferral program essentially sidesteps the law. Lawmakers rejected legislation known as the DREAM Act, which would have offered a provisional path to legalization for undocumented students and military members. 

Officials say USCIS is attentive to the risk of adolescent immigrants cheating the system. “The Fraud Detection and National Security Directorate has significant tools and expertise to protect the integrity of the immigration system, including the deferred action program,” spokesman Christopher Bentley says. USCIS is working with school districts and educational institutions to figure out mechanisms for spotting and discouraging fake records, he adds. USCIS also conducts outreach to “protect the public from falling victim to scams involving false documentation,” Bentley says. 

Despite such efforts, document peddlers, including federal employees, have suckered immigrants and U.S. citizens. “At any point in time that you have material gain and gatekeepers, you’re going to have some degree of corruption,” says Travis Hall, a doctoral candidate at New York University who studies the social and cultural history of identification technologies. 

He is examining the use of iris scans, DNA tests and other physical traits to improve national security, border control and social welfare. “There’s a whole slew of problems that can happen on biometric systems if someone gets enrolled as someone else,” he says. Due to cultural and language barriers, foreigners may not have enough information about the workings of the immigration system to resolve data errors. “Unless you’ve got resources, it’s really hard to fight back,” Hall says. 

Some immigrant rights groups contend foreigners are wrongly deported under a controversial Immigration and Customs Enforcement fingerprinting program called Secure Communities. The initiative compares the records on offenders in an FBI multibiometric database with fingerprints in a DHS identification system to determine whether suspects are in the country illegally.

One immigrant allegedly was wrongfully imprisoned for months as a result of the Secure Communities program. James Aziz Makowski, who gained citizenship at age 1 after being adopted, now is suing the government for detaining him due to the misuse of outdated citizenship records. He initially came in contact with authorities after being arrested on drug charges in July 2010. ICE had not revised its records in more than 20 years and Makowski’s nationality was registered as “India,” according to a court complaint. Meanwhile, the FBI had him listed as a citizen since high school, when he underwent a background check to join the U.S. Marines. Only after Makowski’s father retained a lawyer did ICE drop the extradition case. 

ICE officials say they are working to prevent such mishaps. The agency “has already taken numerous steps to ensure that the detention of U.S. citizens does not occur, including a new detainer form and a toll-free hot line—(855) 448-6903—that detained individuals can call if they believe they may be U.S. citizens,” ICE spokeswoman Gillian Christensen says.

Agency officials insist the FBI’s information sharing program is useful. “One of the benefits of Secure Communities is that individuals’ identities are verified or determined through biometric data—fingerprints, specifically—to determine whether or not they’ve been encountered before by federal law enforcement or DHS,” Christensen says. The program “has been helpful in uncovering individuals’ true identities when they’ve given state or local law enforcement aliases, or have otherwise been engaged in some kind of identity or benefit fraud.”

Testing Biometrics

Several DHS agencies are experimenting with other biometric indicators to dig up criminal histories. Homeland Security officials have begun testing iris-matching technology on suspected illegal immigrants at Border Patrol stations. “The department is exploring additional biometric modalities such as face and iris to determine what may be possible to implement in our operational environments, whether it be for enforcement or Trusted Traveler programs,” Kimberly Weissman, spokeswoman for the US VISIT program, told Nextgov in July. US VISIT maintains Homeland Security’s ID database. Trusted Traveler allows select low-risk American and foreign international passengers who have consented to background checks and fingerprinting to zip past U.S. airport security. 

Homeland Security also has developed rapid DNA equipment to confirm kinship during immigration processing. “When there is no evidence that establishes a familial relationship, we can suggest to people that they might want to provide DNA testing results, but we can do no more than suggest it,” USCIS’ Bentley says. “Our DNA policy is that if people want to provide DNA voluntarily on their own, and it helps their case, they can.” 

DHS is designing a rapid DNA system for a variety of other potential uses too, including “countering human trafficking, family reunification, identification of victims following mass casualties and checks against DNA samples of known criminals,” a September DHS privacy assessment stated. 

Homeland Security needs rapid DNA technology—portable analysis tools intended to identify individuals within an hour—to single out border violators and ICE detainees, according to a 2010 DHS presentation. An earlier internal USCIS policy options memo had proposed forcing immigrants to submit a DNA swab. Officials were dealing with people from countries like Somalia who were falsely claiming a right to U.S. residency based on phony identities. “Screening from this region is important, as evidenced by the 1998 U.S. embassy bombings in Kenya and Tanzania and the fact that Somalia has long been a haven for al Qaeda. Adding urgency to the issue is the recent revelation that a naturalized U.S. citizen blew himself up in a suicide bombing in Somalia,” the memo stated. 

Hall says DNA samples may be impractical for searching records to validate identities but useful for proving parental lineage or matching up multiple files on the same person. DNA “is good at telling you that two people aren’t the same, but not so much in differentiating between two people who are really similar,” he says. It would be difficult to prove siblings are related with DNA or to confirm a grandfather-grandson relationship. “The only way that DNA would be able to tell if someone was [Osama] bin Laden’s brother would be if they already had DNA from bin Laden’s brother or his mother and father,” Hall says. For these reasons, he adds, DNA matching among relatives needs further investigation. 

There also are civil liberties tensions surrounding the holding period for DNA swabs and other permissible applications of the genetic material. “When samples collected for civil purposes, or even criminal if the person is acquitted, are then kept indefinitely and used to be searched for all kinds of different purposes—it can get people caught up in all kinds of problems,” Hall says. “Usually you can have your DNA or fingerprints expunged, but you have to specifically ask and go through the bureaucratic machine to do so—the onus is on the individual, not the state.” 

Plus, DNA samples are now known to reveal more sensitive information than previously believed. Several years ago, Homeland Security officials said the FBI’s method of creating DNA profiles, using 13 markers, positively identified an individual without disclosing his or her traits or disorders. But in September, scientists discovered that those 13 markers and every DNA marker once thought of as “junk DNA,” or unassociated with personal characteristics, actually do reveal telling information. 

The September DHS privacy review stresses that each new purpose for using rapid DNA will require significant new regulations or regulatory revisions, as well as privacy and civil rights assessments. And Bentley repeats, “We have no statutory, regulatory authority to require DNA testing.” 

Immigration processing has become a lot more sophisticated since the days of Ellis Island, but even with high-tech ID systems, Lady Liberty’s watchful eye is increasingly put to the test.

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