Cross-Border Travel in North America: The Challenge of U.S. 110 Legislation (1999)

Globalization is contributing to the broadening and deepening of interdependence societies and states, and events in one part of the world are having a greater impact on peoples and societies in distant locations. Many states and societal groups have responded to globalization pressures by supporting freer trade, foreign investment and capital flows, but they have generally been far more reluctant to support the freer movement of people. Thus among factor exchange systems financial markets are the most globalized, [while] labour markets are the least so. No other area of economic life remains so much under the thrall of states and so resistant to globalizing effects.(1) As national regulations on trade, foreign investment, and capital flows are liberalized, there are growing pressures to facilitate international travel by business persons, professionals, and some labor groups such as guest in Western Europe and farm workers in North America. For example, the North American Free Trade Agreement (NAFTA) and the World Trade Organization (WTO) have provisions to promote freer trade in services, and this often requires physical proximity between the service providers and service users. Pressures therefore increase to permit service providers in one member country to travel more easily to other member countries.(2) While the pressures to liberalize regulations on cross-border travel have increased, there strong governmental and societal counter-pressures persist. They are particularly evident in North America where the issue of Mexican migration to the United States has been a highly sensitive issue. This paper focuses on one instance where the United States Congress passed highly controversial legislation to closely monitor the cross-border movement of aliens (or non-U.S. citizens) at the Mexico-U.S. and Canada-U.S. borders: Section 110, just one item of the U.S. Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). Shortly before the 1996 U.S. presidential and congressional elections, the Congress passed the IIRIRA and president Bill Clinton signed the act only two days later. Although Section 110 was to be implemented by September 30, 1998, the U.S. Congress deferred the implementation date for an additional thirty months to March 30, 2001, because of strong opposition from Canada, Mexico, and a wide range of societal groups in the United States. Nevertheless, Section 110 has not been repealed and it continues to pose a major threat to freer cross-border travel in North America. If Section 110 is implemented, it will require the U.S. Immigration and Naturalization Service (INS) to develop an automated control system that will collect a record of departure of every alien departing the United States and match the records of departure with the record of the alien's arrival in the United States.(3) In effect, Section 110 will require all non-U.S. citizens to be inspected by an INS officer when leaving or entering the United States at all ports of entry, including land borders. The purpose, according to the text of the act, is to enable the Attorney General to identify, through on-line searching procedures, lawfully admitted nonimmigrants who remain in the United States beyond the period authorized by the Attorney General.(4) The U.S. government is understandably concerned about this issue, because it is estimated that about 40 percent of all illegal immigrants enter the country legally and then remain beyond the permissible time period.(5) In the view of the legislation's supporters, Section 110 would ensure detection of these illegal immigrants whenever they attempted to leave and return to the United States. But critics have argued that the great majority of people entering the United States with visas follow the rules and depart on time, and that Section 110 would do little to catch those people who are violating U.S. immigration laws.(6) To implement Section 110, the INS would also have to direct huge and costly resources for more inspection officers and new equipment. …