On December 13, 2016 the Department of Homeland Security (“DHS”) published notice in the Federal Register regarding updates to its Border Crossing Information (“BCI”) System of Records, as required by the Privacy Act of 1974 (5 USC 552a). Comments may be submitted until January 12, 2017.

Brief note on what Customs and Border Protection can see when you apply for admission

Clients often ask what an inspecting Customs and Border Protection (“CBP”) officer can see on the monitor screen after scanning the passport of someone seeking admission to the US. Some attorneys may have had the good fortune to see the screen while an inspecting officer reviews this data, but due to security and privacy regulations, this situation is highly unlikely. Even if you have been able to see this screen, the information is likely to be stale within a few years as data technology expands the volume of information that can be aggregated and integrated into CBP’s systems. A client’s query as to the information that CBP can review during inspection can therefore be answered honestly and helpfully only by reviewing available public information. 81 FR 89957 is one source of such information.

As a general principle, if an agency can collect data, it can see it. According to 81 FR 89957, “BCI categories of records include responses to immigration and customs inspection questions collected to facilitate the CBP inspection process.” BCI also includes:

• certain biographic and biometric information;
• photographs;
• certain mandatory or voluntary itinerary information provided by air, sea, bus, and rail carriers or any other forms of passenger transportation; and
• the time and location of the border crossing.

Biometric information may include “digital fingerprint scans, palm prints, photographs, facial and iris images, or other biometric identifiers.” Additionally, CBP collects information regarding “scars, marks, tattoos, and palm prints” and shares this information with the Departments of State and Justice (i.e. the FBI).

Perhaps more important than what CBP can see are the multiple sources from which this data is obtained. The sources of the BCI System of Records includes:

• passports provided at the time of seeking admission;
• information submitted by airplanes, trains, buses, ships, and other carriers through the Advance Passenger Information System;
• information stored on the Global Enrollment System as part of a registered or trusted traveler program;
• written or oral responses to immigration and customs inspection questions provided by travelers to facilitate the inspection process;
• photographs taken in support of the inspection process (eg. the camera that photographs driver and license plate at a land port of entry);
• travel documents issued by non-federal authorities (eg. an enhanced driver’s license);
• travel documents issued by another agency (eg. visas issued by the Department of State);
• information collected by the Canada Border Services Agency pursuant to the Beyond the Border Entry Exit Program.

One key takeaway from this list of information sources is that answers to questions from an inspection may be used against a traveler in future inspections. Seeking to elicit an admission of criminal activity or drug use is a well-documented strategy of CBP officers. With access to written and oral responses from previous inspections, CBP can employ the same strategy over an extended period of time. Additionally, CBP can ask a traveler about other people, and use this information against third parties. For example, officers may ask an applicant for admission to the US if he has ever used drugs with other people, and then confront his friends with the answer at a later date.

A second key takeaway, especially as laws and attitudes towards marijuana consumption in Canada evolve, is to avoid disclosing any drug use to the Canada Border Services Agency (“CBSA”). The mere admission of past marijuana use will give rise to inadmissibility under US immigration law. Since CBSA shares information with CBP, any admissions made when returning to Canada may result in inadmissibility to the United States. Under the Beyond the Border Entry/Exit Program, CBSA and CBP are sharing entry/exit data so that “the record of a traveler’s entry into one country can establish a record of exit from the other country.” The broader mandate of the Beyond the Border Action Plan, however, includes identifying “those who have … violated immigration law in the other country” and enabling “informed decisions on visas, admissibility or other immigration benefits.” Thus, any statements made to the CBSA are likely to end up in the records of CBP, and vice versa.

All of this, of course, may only scratch the surface of what CBP can actually see, but certainly provides a useful framework for answering the question.

Comment for the Federal Register

At 81 FR 89962, under the “Retention and Disposal” section, the notice discusses the length of time that information related to a particular border crossing is maintained on the BCI system. Information is maintained for 15 years for citizens and LPRs, and 15 years for non-immigrants. This section then discusses information on border crossings “prior to a change in status,” however, the actual process described is “adjustment of status.” Specifically, the language describes “non-immigrant aliens who became US citizens or LPRs following a border crossing that leads to the creation of a record.”

A “change” in status occurs pursuant to section 248 of the Immigration and Nationality Act  and refers to the transition from one non-immigrant status to another, usually by filing Form I-539 or I-129. An “adjustment” of status, by contrast, occurs pursuant to section 245 or 245A of the Immigration and Nationality Act and refers to the transition from non-immigrant status to permanent resident status. While this detail may seem trivial, proper administration of the law depends on using precise terms, and a minor adjustment now may prevent significant unforeseen consequences in the future. Therefore, I respectfully request that the words “change in status” be changed to “adjustment of status” in all instances where they appear in this notice.