CBP Response to Identity Project Public Comment

1651-0143 ATA

[PRA Supplementary Document]

CBP provides the following response to the comments submitted by the Identity Project:

First, the commenter asserts that U.S. Customs and Border Protection (CBP) has no authority to collect the information at issue because CBP has no authority to regulate the departure of noncitizens from their home country or to regulate their travel between countries, and that the collection of this information purports to do so, exceeding CBP’s authority. The commenter also asserts that PRA approval was not properly attained because, the incorrect OMB control number was posted on the CBP One app, and that, by acting outside of its authority, CBP has “misled” asylum seekers and failed to take into the costs of such misleading action.

The commenter misunderstands the nature of the Advance Travel Authorization (ATA) process and of CBP’s collection of information as part of that process. More information about the ATA process is available in CBP’s Privacy Impact Assessment. CBP agrees with the commenter that it has no ability or authority to regulate whether an individual may depart their home country. Each government, as a sovereign entity, has the authority to set its own departure controls and requirements, and CBP does not purport to – nor could it – control such a process. Similarly, CBP has no authority to regulate migrants’ travel to or entry into a third country. However, as an exercise of its own authority, the Executive Branch has the authority to set rules and regulations governing the entry of noncitizens into the United States. These rules that are developed apply regardless of where a noncitizen comes from, the purpose of their travel, and the means of travel. See, e.g., Shaughnessy v. United States ex rel. Mezei, 354 U.S. 206, 211 (1953) (holding that immigration is “a fundamental sovereign attribute”); United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 543 (1950) (stating that rules governing the admission of noncitizens to the United Sates may be set by the President and delegated to a “responsible executive officer of the sovereign.”).

Thus, noncitizens seeking admission to the United States must comply with the rules set out by the U.S. government for doing so. See, e.g., Knauff, 338 U.S. at 542 (explaining that noncitizens seeking admission must do so in accordance with the procedures set by the government). Under these procedures, a citizen of a foreign country who wishes to enter into the United States ordinarily must first obtain a document sufficient to permit them to travel to the United States to seek admission. Such authorization is typically issued in the form of a visa by the Department of State at an embassy or consulate in the home country of a person seeking admission into the United States. Another method of obtaining authorization to travel to the United States is through the Electronic System for Travel Authorization (ETSA) system for citizens of a country that participates in the Visa Waiver Program (VWP), which authorizes eligible foreign nationals from certain countries to travel to the United States, for business or pleasure, for a period of 90 days without first obtaining a visa. Individuals may apply through ESTA for authorization to travel to the United States under the VWP. In either case, advanced authorization does not seek to prevent anyone from traveling to the United States, nor does it guarantee admission into the United States, for the ultimate authority to determine an individual’s admissibility is made by CBP Officers at a port of entry upon inspection of an applicant for admission. 

Noncitizens who are not able to obtain a visa to be admitted to the United States may still seek parole into the United States. Under its parole authority, the Department of Homeland Security (DHS) may permit a noncitizen individual who may otherwise be inadmissible to the United States to temporarily enter the United States as appropriate, on a case-by-case basis, for urgent humanitarian reasons or significant public benefit. See 8 U.S.C. § 1182(d)(5). DHS may issue noncitizens who are outside of the United States an “appropriate document authorizing travel” to the United States to seek parole. See 8 C.F.R. § 212.5(f). An ATA functions as such a document, and thus individuals with an ATA, and meet other eligibility requirements for boarding are permitted to board a carrier and travel to the United States to seek parole. The ultimate decision whether to grant parole is made by CBP Officers upon inspection at a port of entry.

The information collected by CBP as part of the ATA process is a step in the DHS Parole Processes for Cubans, Haitians, Nicaraguans and Venezuelans (CHNV) which begins with a supporter confirmed by U.S. Citizenship and Immigration Services (USCIS). The number of approved travel authorizations issued to potential beneficiaries each month by CBP cannot exceed 30,000. Only beneficiaries with USCIS-confirmed supporters are directed to access CBP One and submit their information as part of the ATA process. Those not approved nor a part of the parole processes cannot access this information collection. 

A noncitizen’s receipt of this authorization to travel by a carrier is a critical part of the ATA process, because, contrary to the commenter’s assertions, a document authorizing travel is generally required in order to travel to the United States via carrier. CBP collects certain mandatory and voluntary advance passenger information from air, rail, bus, and sea carriers about travelers in advance of arrival. This purpose of this information is to identify high-risk passengers and crew seeking to travel to the United States, while facilitating the travel of legitimate passengers and crew members. This is mandatory for travelers arriving or departing from the United States on a commercial air or sea carrier. Carriers that transport to the United States a noncitizen who does not have valid travel documentation are subject to a fine for each noncitizen lacking the required documentation. Thus, the ATA process – like all processes resulting in the issuance of a travel document – provides a manner by which noncitizens may be permitted to board an aircraft and travel to the United States. Importantly, however, individuals applying for an ATA are not prohibited from seeking admission to the United States in another way. Thus, if the ATA process is approved, the noncitizen may travel to the United States pursuant to the process. If the ATA process is denied, however, the noncitizen would not be authorized to travel to the United States under the ATA process, but may pursue other existing avenues to enter the United States through other travel documents, such as a visa or an ESTA, if appropriate. Additionally, the approval or disapproval of an ATA – and the availability of the ATA process itself -- has no impact on an individual’s ability to present themselves at the land border to be inspected for admission to the United States. Thus, an individual who does not wish to participate, or is ineligible to participate in, the ATA process is not prohibited from seeking another form of travel document or from presenting at a land POE.

In short, therefore, the ATA process regulates the entry into the United States of participating individuals. CBP in no way purports to regulate the travel out of another country or between non-U.S. countries and takes no position on whether and how individuals may choose to leave one country or enter another country. CBP also notes that the decision as to whether to participate in the ATA process is voluntary – individuals are not required to use the ATA process to travel to the United States and, as noted above, may pursue other means of obtaining a travel document, as appropriate, including applying for a visa, or an ESTA. Noncitizens may also seek admission at the land border. And, as noted by the commenter, noncitizens may seek asylum once they are present in the United States.

With regard to the commenter’s specific concerns about use of the app itself, CBP notes that the application has many different functions and purposes. The CBP One portion of the ATA process is available in English, Spanish and Haitian Creole, the predominant languages, spoken by Cubans, Haitians, Nicaraguans and Venezuelans eligible for the ATA process. Users can also utilize the assistance of translation application that offer a camera feature and will quickly translate verbiage into many languages as well as voice. Having a valid passport is a requirement of the CHNV parole processes established by DHS, of which the ATA collection is a part of. Individuals are able to access CBP One from any android or apple device and individuals are able to share devices if needed to access the application. Regarding the use of a Virtual Private Network (VPN), the Terms and Conditions state that a VPN is prohibited when using two of CBP One’s other functionalities -- “Submit Advance Information” and “Report My Departure.” The CBP One application does not prohibit the use of a VPN to request an “Advance Travel Authorization.”

Regarding the commenter’s assertion that the CBP did not properly follow the PRA process, CBP complied with the Paperwork Reduction Act by obtaining an emergency approval under OMB control number 1651-0143. The control number was inadvertently not added to the app, but it has been corrected. CBP is extending the collection authority for 1651-0143 under the Paperwork Reduction Act through the usual notice and comment process.