Two weeks ago, U.S. Customs and Border Protection announced in the Federal Register (80 FR 44893):

U.S. Customs and Border Protection (CBP) intends to conduct a test to collect biometric and biographic information from certain aliens who are departing the United States on selected flights from up to ten identified U.S. airports. This notice describes the test, its purpose, how it will be implemented, the individuals covered, the duration of the test, where the test will take place, and the privacy considerations. This test will not apply to U.S. citizens. … The test will begin no earlier than July 6, 2015, and will run for approximately one year.

The ten airports are Los Angeles (LAX), San Francisco (SFO), Miami (MIA), Hartsfield-Jackson Atlanta (ATL), Chicago O’Hare (ORD), Newark Liberty (EWR), New York (JFK), Dallas-Fort Worth (DFW), Houston (IAH), and Mordor Washington Dulles (IAD).

As mentioned in the notice, in order to ensure that the “test will not apply to U.S. citizens”, CBP officers will ask that U.S. citizens show proof of citizenship when boarding the affected flights. They’re probably expecting that proof to be in the form of a U.S. passport; it’s not clear how they’ll react if you violate that expectation. Since 1994, 8 USC § 1185(b) has made it “unlawful” for U.S. citizens to enter or leave the U.S. without a U.S. passport, with limited exceptions for land and sea travel.

Meanwhile, the Senate continues to press its efforts to pay for Homeland highways by harassing the diaspora: they seek to confiscate the U.S. passports of citizens who did not provide SSNs with their passport applications, or limit their passports so that they cannot travel anywhere but the United States. The Senators seem to assume that 1185(b) would then function to trap these citizens in the Homeland until the IRS managed to extract the US$400 million in revenue which the Joint Committee on Taxation thinks can be claimed from them.

In reality, 1185(b) typically is enforced only on entry to the U.S., not on departure, and has lots of loopholes. However, the “biometric exit” test illustrates that the executive branch is taking steps which — although they are aimed primarily at enforcing U.S. immigration laws against non-citizens — will also have the effect of detecting departing citizens who are violating 1185(b). At this point I can only speculate about the impact.

Table of contents

1. Person never documented as U.S. citizen
2. Overview: how to catch an illegal emigrant
3. Current situation: APIS
4. Biometric exit “will not apply to U.S. citizens”, but …
5. How will CBP respond to 1185(b) violations?
6. Passport law is not a criminal statute
7. What if they do stop you from leaving?
8. Conclusion

Person never documented as U.S. citizen

If you were not born in the U.S. and you or your parents have never tried to register you as a citizen at a U.S. consulate, you have nothing to worry about; 7 FAM 085 has stated since 2005:

7 FAM 085 U.S. passports and visas and dual nationality

(CT:CON-106; 06-06-2005)

a. Section 215(b) of the INA (8 U.S.C. 1185(b)) and 22 CFR 53 require U.S. citizens to enter and depart the United States on U.S. passports, with limited exceptions.

b. Although a consular officer may not issue a visa to an individual who has been determined to be a U.S. citizen, if a nonimmigrant visa applicant has a possible claim to U.S. citizenship but is unable or unwilling to obtain documents to establish that status, as determined by the post’s citizenship and passport officer, the visa officer may presume that the applicant is an “alien” pursuing a nonimmigrant visa application. If the presumed alien is found eligible to receive the visa for which application was made, the visa may be issued prior to the final determination of citizenship status.

c. If an immigrant visa applicant has a possible claim to U.S. citizenship, the post’s citizenship and passport officer must resolve the citizenship issue before the visa officer may take final action on the visa application.

9 FAM 40.2 N1 has a similar statement. Since State says that you can enter and depart the U.S. on a non-U.S. passport despite your “possible claim” to citizenship, in such a case, CBP probably won’t even know about your “possible claim”, unless you’re traveling with a U.S. citizen parent; all they’ll see is the non-U.S. place of birth and the visa in your non-U.S. passport. So those of you to whom that FAM quote applies can probably stop reading now, unless you’re interested in this subject. Also, if you’re Canadian and you plan on crossing into the U.S. by land, you may be able to obtain an enhanced driver’s license from the province where you live. That serves as proof of Canadian citizenship, and does not indicate your place of birth.

This post is aimed mainly at air travelers who are either:

(1) registered dual citizens who entered the U.S. on a U.S. passport but may try to leave on a non-U.S. passport; or
(2) people with a U.S. place of birth and no U.S. passport nor CLN.

Overview: how to catch an illegal emigrant

Leaving aside the much harder problem of detecting unregistered children of emigrants, there’s three ways to catch at least some proportion of registered U.S. citizens & people born in the U.S. who are trying to depart from the U.S. with only a non-U.S. passport:

(1) By noting the country of birth in the passport;
(2) By matching biographic data from the non-U.S. passport against a database of known U.S. citizens (e.g. of all passport holders, or maybe just of holders of revoked passports); or
(3) By questioning passengers who show a non-U.S. passport but don’t have an arrival record nor indication of a status that would make them exempt from having one.

The way things are right now, except at the airports involved in the “biometric exit” test, the U.S. doesn’t have CBP officers physically inspecting the passports of most outgoing passengers; they only receive an electronic extract of certain details from your passport. At most, you might show your passport to the TSA officer at the security checkpoint for the international terminal, but their main concern is to confirm that you match your passport, not whether you’re violating 1185(b).

Current situation: APIS

Rather, the airline check-in desk is the main point of contact for departing passengers. The airlines submit passenger information to a system called APIS (Advance Passenger Information System), which checks the passenger’s information against various TSA watchlists and tells the airline whether the person is “cleared” for boarding, is a “selectee” for further screening, or is “not cleared” (19 CFR 122.75a(b)(ii)). In the future, APIS could theoretically be used to screen for possible U.S. citizens trying to leave on a non-U.S. passport, but right now either the relevant information isn’t in the database, or the various systems which have the data don’t talk to each other.

1. Country of birth

With regards to #1, APIS does not collect passenger country of birth information (see 19 CFR 122.75a(b)(iii)(3) for the data that does get collected). TSA might be able to match the biographic data submitted through APIS to an existing ESTA record … but even after the most recent update in November 2014, ESTA doesn’t collect country of birth information either, only city of birth and country of citizenship (79 FR 65414; I’d guess the system designer incorrectly assumed that the city of birth would always be in the country of citizenship). The State Department asks for your country of birth on visa applications (Form DS-160), but it’s not clear whether that information gets fed systematically into DHS databases.

In general, particularly if you don’t need a visa to enter the U.S., or if you entered on your U.S. passport, your country of birth probably isn’t in any easily-accessible U.S. database — only a person physically inspecting your passport will see it (and some VWP passports, e.g. Japan, South Korea, and Switzerland, don’t have that information in the first place). Theoretically you might get a real bastard of a check-in clerk who thinks it’s his job to enforce 1185(b) — indeed, that’s what happened to Boris Johnson, but that was on the way into the United States. On the way out (e.g. on a one-way flight or the return leg of a round-trip), airlines generally only care that you are qualified to enter your destination countries.

2. Matching against U.S. passport records

For #2, the State Department of course have a database of all issued U.S. passports. DHS do have some form of access to it (see e.g. the System of Records Notice at 79 FR 39466), but I don’t know if they can conduct “fishing expeditions” like getting the details of every single U.S. passport holder with a certain name. DHS also have a separate database of lost, stolen, and revoked passports, called TECS, to which CBP can send queries. If the Senate highway bill passes in its present form, that database would include people whose U.S. passports were revoked for alleged tax debts or because their passport application did not include an SSN. (It’s not clear what would happen to people who never had an SSN in the first place.)

In April 2014 hearings by the Subcommittee on Border and Maritime Security, “Passport Fraud: an International Vulnerability”, we got a few details about the operations of TECS: Brenda Sprague confirmed that State reports revoked passports into TECS, while Alan Bersin and John Wagner stated that CBP queried TECS by passport number. It seems CBP use TECS solely to detect passport fraud, i.e. people attempting to travel on documents that were reported revoked, stolen, or lost; the passport number gets checked against TECS, and as long as it’s clean the holder of the passport can board the plane. It’s not clear whether they can do biographic queries (e.g. name & birthdate) to check whether a person with a valid non-U.S. passport is also the holder of U.S. passport that has been revoked.

3. Finding people with missing arrival records

Unlike the good old days when paper I-94s were sent to giant processing centres in a futile attempt to match them with departure records, in recent years CBP appear to have made great strides in the area of arrival/departure matching, primarily by moving to electronic I-94s at most airports and seaports (78 FR 18457). U.S. citizens who enter the U.S. on a U.S. passport but then depart on a non-U.S. passport (e.g. because their U.S. passport has been revoked in the interim) would not have arrival records for those non-U.S. passports. However, they aren’t the only category of people who lack arrival records; people who entered the U.S. without being inspected also wouldn’t have arrival records either. Without further questioning or investigation, CBP wouldn’t be able to distinguish people who snuck into the U.S. through an unguarded section of the border from people who entered on U.S. passports and are trying to leave on non-U.S. passports.

Furthermore, the Arrival/Departure Information System (ADIS), which does the matching, doesn’t appear to send responses to APIS; APIS just feeds departure information into ADIS (see for example the 2013 Privacy Impact Assessment). ADIS does post-departure batched matching, with the primary aim of alerting DHS to detecting visa overstayers (i.e. people with arrival records who don’t have a corresponding departure record by the time their status expires, not people with missing arrival records). DHS officials mentioned in Congressional testimony in 2013 that they were trying to do real-time arrival/departure record matching, but it’s not clear what progress they’ve made.

In short, it seems that DHS can’t yet automatically detect whether a departing passenger is a U.S. citizen violating 1185(b). Both Categories #1 and #3 require human inspection & interrogation; only #2 could be purely automated.

Biometric exit “will not apply to U.S. citizens”, but …

At first blush, you might think that the “biometric exit” pilot would not change the above situation, since 8 USC § 1365b(c) [sic] states that:

The entry and exit data system shall include a requirement for the collection of biometric exit data for all categories of individuals who are required to provide biometric entry data, regardless of the port of entry where such categories of individuals entered the United States.

U.S. citizens are not required to provide biometric data when entering the U.S, and thus there is no authority to demand that they provide biometric data when leaving either. However, it should be obvious that CBP must confirm a departing traveller’s citizenship in order to decide if the traveller is required to undergo “biometric exit” procedures or not. In the Federal Register notice, CBP notes that exact point:

Once travelers begin the departure process, CBP officers will review the traveler’s travel document (passport, visa, lawful permanent resident card, or other qualifying travel document) to determine if the traveler is an alien who is required to submit biometric information at the time of departure as described in the next section, entitled “Aliens Covered.”

There’s three potential situations. First, you might provide a proof of U.S. citizenship other than a passport, so that you don’t have to submit to biometric data collection. Second, if you’re Canadian, you might provide your Canadian passport, which exempts you from biometric data collection. Third, you might pretend to be a non-U.S. citizen and provide your non-U.S. passport; since you’d lack proof of any immigration status that would exempt you from “biometric exit” under 8 CFR 215.8, you’d thus get your fingerprints collected. In all three cases, the CBP officer might ask if you’re a U.S. citizen (if not already clear) and, if so, why you don’t have a U.S. passport.

Now, the “biometric exit” pilot doesn’t include any changes to biographic data collection. In simpler terms, the government don’t have any new plans to get existing databases to talk to each other, nor are they expanding existing data collection procedures to include information that would help detect U.S. citizens violating 1185(b). The sole difference is that if your flight has been randomly selected, CBP officers will inspect your passport and ask you questions.

How will CBP respond to 1185(b) exit violations?

CBP’s main goal in running the “biometric exit” pilot is not to detect U.S. citizens violating 1185(b). (That probably also means they won’t compile statistical data on how many violations they find.) Rather, they seek to verify the identities of non-citizens, to identify overstayers (though it’s not clear whether they’re doing this in real-time), and to estimate how much it would cost to implement a full “biometric exit” program on a larger number of flights:

The CBP officer will also capture two of the alien’s fingerprints and verify the fingerprints against the alien’s biometric identity record. Based on the results of the verification or additional law enforcement information, the officer may then perform additional analysis or conduct a further interview to determine if additional action may be appropriate. When the departure inspection is complete, the results of the transaction will be recorded in a DHS biometric database and a CBP biographic database in real time.

The primary mission of any biometric exit program is to provide assurance of traveler identity on departure, giving CBP the opportunity to match the departure with a prior arrival record. This capability enhances the integrity of the immigration system and the ability to accurately detect travelers that have overstayed their lawful period of admission to the United States.

CBP will analyze and evaluate the test’s performance based on a number of criteria, including the occurrence of watchlist matches based on biometric data, the occurrence of biometric-identified fraud, the occurrence of inaccurate APIS manifests, how overstay calculations are impacted, the transaction times for exit processing per traveler, the rate of successful transactions, the occurrence of law enforcement hits, including those requiring referral to secondary inspection, the observations from the CBP officers performing the test, and system performance. CBP will use the results of the BE-Mobile Air Test to determine strategic programmatic requirements for a comprehensive biometric exit solution.

If CBP actually are doing real-time arrival/departure matching, it’s likely that people who entered on U.S. passports but are trying to leave on non-U.S. passports would get pulled out for secondary inspection, since they wouldn’t have an arrival record. And they might also notice if you have a U.S. place of birth in your non-U.S. passport. However, I doubt CBP has a formal policy on how to respond to people suspected of violating the 1185(b) passport requirement.

Note that 1185(b) enforcement is the responsibility of State, not CBP. In 2003, Executive Order 13323 (69 FR 241) assigned responsibility for enforcement of 1185(b) to State; the EO only requires that State “consult” with DHS before issuing rules under 1185(b). (In Dore v. Schultz, 582 F.Supp. 154 (S.D.N.Y., 1980), it was also claimed that 8 USC § 1104 assigned responsibility for 1185(b) enforcement to the Secretary of State. This seems a bit dubious to me, since 1104(c) only speaks of “the determination of nationality of a person not in the United States”, but in any case, if there was really an issue here, EO 13323 took care of it.) State is also responsible for processing applications for waivers of the passport requirement (see e.g. 7 FAM 1340 Appendix N).

That said, I see three possibilities. First, they might refuse to let you board the plane, though I think this is the least likely of the three possibilities. Second, they might ignore it entirely, or just give you a stern talking-to (however, that might scare some U.S.-born people who never held U.S. passports into applying for one, which could void their claim to relinquishment — as has happened to several Brockers.) Third, they might make you pay US$150 for State to do a “file search to verify United States citizenship” and give you a waiver of the passport requirement, as they already do under 22 CFR 53.3 to U.S. citizens attempting to enter the country without a U.S. passport; that might make you miss your flight if it takes long enough.

(Back in 1998, waivers of the passport requirement were still free; see e.g. Item #6 under “Passport and Citizenship Services”, 63 FR 5098, 5101. However, in the current version of the table of fees for citizenship services, 75 FR 36522, 36530, Item #6 has become “file search and verification of U.S. citizenship”, and the fee is listed as US$150. But look on the bright side: at least it hasn’t been hiked by as much as the fee to renounce citizenship.)

Passport law is not a criminal statute

If CBP officers really do try to intimidate you about your lack of a U.S. passport, it’s worth keeping in mind that the government cannot fine you or throw you in prison for attempting to violate 1185(b). The original wartime version of 1185(b) imposed harsh penalties for attempting to depart the U.S. without a passport: a US$5,000 fine and up to five years in prison (66 Stat. 190). However, when the House of Representatives moved the amendment to the Foreign Relations Authorization Act for 1979 (H.R. 12598, Pub.L. 95-426) which re-enacted the passport requirement and extended it to peacetime, they removed those penalties.

In extending the passport requirement to peacetime, it seems Congress only wanted the executive branch to ensure that outbound U.S. citizen passengers had documents acceptable to prove their nationality and identity to their countries of destination, in order to save those passengers from difficulties with those countries’ border guards (and in order to save their travel companies the expense of transporting them back to the United States). Congress explicitly rejected President Carter’s desire to retain the earlier fines which could be applied to outbound passengers without passports.

Specifically, Representative Joshua Eilberg (D-PA), who moved the relevant amendment, stated at the time (124 Cong. Rec. 15780):

Thus we see that the elimination of the passport requirement has the capability of thrusting large numbers of citizens who are traveling abroad into unnecessary difficulties. The difficulties would be enlarged with travelers being refused entry in the country of destination. Over the last 20 years the passport has become a recognized document to facilitate entry and exit from countries. The International Civil Aviation Organization to which the United States has representatives, has been engaged for some years in attempting to find ways to standardize the size of the passport and the layout of the identity information. These attempts are aimed at meeting the requirements of not only this country but also other countries in ways which do not adversely affect the travel of persons throughout the world, but ease further the burden of exiting and entering other countries.

In my amendment, I am deleting the provisions in the administration’s bill for an administrative penalty against persons who violate any provisions of section 215. The thrust of my amendment is to facilitate travel, not to obstruct it and cover it with penal overtones.

Incidentally, it was already well-known in 1978 that many Americans might be dual citizens and thus entitled to other passports. Indeed, in June Eilberg also introduced H.R. 13349 (which became Pub.L. 95-432), the bill which repealed 8 USC § 1482 (a section of the Immigration and Nationality Act which stripped dual citizens residing abroad of their U.S. citizenship after three years). Nevertheless, the 95th Congress did not attempt to require that U.S. citizens hold U.S. passports when departing; the House passed H.R. 13349 just one day before they passed the final version of H.R. 12598 which emerged from conference.

What if they do stop you from leaving?

I doubt it’ll happen. However, if you are unusually law-abiding, would like to comply with 1185(b), have already been documented as a U.S. citizen, and don’t want to apply for a new U.S. passport right now, then you should note the “exceptions as the President may authorize and prescribe” clause of 1185(b). Regulations clearly define circumstances under which it is perfectly legal for a U.S. citizen to leave the U.S. without a U.S. passport. 22 CFR 53.2:

(b) A U.S. citizen is not required to bear a valid U.S. passport to enter or depart the United States … (7) When bearing documents or combinations of documents the Secretary of Homeland Security has determined under Section 7209(b) of Public Law 108-458 (8 U.S.C. 1185 note) are sufficient to denote identity and citizenship.

DHS designated enhanced driver’s licenses from six states, as well as various Indian tribal cards, as “sufficient to denote identity and citizenship” upon arrival by land or sea. However, DHS did not designate them as “sufficient” for departure (even by land or sea); see e.g. 80 FR 40077, 40079:

U.S. citizen holders of Minnesota EDLs may present these EDLs as an alternative to a passport upon entering the United States at all land and sea ports of entry when coming from contiguous territory and adjacent islands from within the Western Hemisphere.

In reality, DHS probably interpret this to allow land departure from the U.S. to Canada or Mexico without a U.S. passport; it would be a bit absurd to require U.S. citizens to carry U.S. passports on the way out but exempt them from showing them on the way back in through the same port of entry. In any case, taking advantage of this exception requires leaving by land or sea, not by air. That is to say, you’d have to take a bus to Canada or Mexico, and then use your non-U.S. passport to catch an onward flight if your final destination were in another country.

Of course, if you are leaving at a land border, there are no exit checks anyway. (A corollary of that: even if the State Department withdraws the 22 CFR 53.2(b)(7) exception tomorrow, illegal emigration would remain simple.) This has been one frequent Congressional criticism of “biometric exit”: the fact that it would be prohibitively expensive to extend it to all land borders. On the Canadian border, some of those costs are mitigated by the “Beyond the Border” programme, under which U.S. and Canada share data with each other on people entering from the other country, but Mexico never agreed to share data with the U.S. in a similar fashion.

Conclusion

Based on all my rank speculation in this post, here’s my informal advice to the various segments of the Brock audience. If you are a documented dual citizen traveling on a U.S. passport, or the undocumented overseas-born child child of an emigrant traveling to the U.S. on a non-U.S. passport and a U.S. visa or visa waiver, this news probably doesn’t affect you. If you’re a documented ex-citizen with a CLN to prove it, and you’re flying out of the U.S. through one of the affected airports, I’d suggest keeping a copy of your CLN in your carry-on luggage on departure and not just on arrival.

If you’re a documented dual citizen with a non-U.S. place of birth, you might be able to slip out unnoticed. If you have a U.S. place of birth but only a foreign passport, you may wish to avoid the affected airports entirely; even if one CBP officer didn’t notice or decided not to ask you about your U.S. birthplace when you entered the U.S., another doing the “biometric exit” screening might notice and squawk. It’s too early to say with any confidence what will happen next, but if you’re in these latter two categories, it’s best to be mentally prepared for the possibility that you might face questioning on departure. (You were probably already prepared for the possibility that you might face questioning on arrival.)

I don’t know how this will interact with any future proposal to confiscate the passports of U.S. citizens who allegedly have tax debts or who didn’t provide SSNs with their passport applications.