Posts Tagged ice

DHS To Use Handheld Card Readers To Access Your Banking Information At Borders, Airports

By: Jon Matonis  

Travelers leaving or entering the United States have long had to declare aggregated cash and other monetary instruments exceeding $10,000. Now, under a proposed amendment to the Bank Secrecy Act, FinCEN (Financial Crimes Enforcement Network) will also require travelers to declare the value of prepaid cards that they are carrying, known now as “tangible prepaid access devices.”

Expected to be finalized by the end of this year, the cross-border reporting modifications stem from a broader October 2011 definition of payment methods and form factors that replaced the term “stored value” with the term “prepaid access” in an effort to more accurately describe the process of accessing funds held by a payment provider.

 

 

Acknowledging that many questions still remain and that enforcement may not be straightforward,Cynthia Merritt, assistant director of the Retail Payments Risk Forum at the Federal Reserve Bank of Atlanta, had this to say about the handheld readers:

Furthermore, according to the comments, the enforcement challenge is not new, nor is the concept of a device or document that can be used to access value. The current challenges are similar to those presented in the past with other monetary instruments such as checks, money orders, and traveler checks.

Merritt also stated that, “When law enforcement takes possession of a cash or monetary instrument at the border, they are effectively holding the funds, but not so with a prepaid card or other device. Holding the card does not provide access to the underlying funds.”

Other questions to be settled include how to determine mobile phone wallet and key fob balances that can function in a manner similar to card swiping, how to distinguish between re-loadable and non-re-loadable prepaid cards, how to distinguish between bank-issued and non-bank-issued prepaid cards, should closed loop gift cards be included in the cross-border reporting requirements, what to do about cards that clear customs with a minimal balance but are then subsequently reloaded with an amount in violation of the reportable limits, and what to do about a large number of non personalized, unembossed cards.

Also, would a traveler have legal recourse for damages if agents seized a proper debit card in the mistaken belief that it was a reportable prepaid card?

These complications and others imply that FinCEN’s NPRM [Notice of Proposed Rule Making] may yet undergo some revisions in order to bring the regulations in sync with the realities of the prepaid card industry.

In the meantime, travelers with a memorized Bitcoin private key can breathe a sigh of relief, because according to an important April 9th, 2012 letter to FinCEN Director James Freis from Homeland Security Investigations it appears that intangible brainwallets are safe for the moment:

Should the border declaration apply to codes, passwords and other intangibles as well as to any tangible object that is dedicated to accessing prepaid funds?

HSI believes that border declaration should not apply to codes, passwords and other intangibles. Identification and verification of intangibles in the context of border enforcement poses logistical and potential legal issues that are not contemplated by currency and monetary instrument declaration regulations. The structure of the currency and monetary instruments declaration regime, hinges on the existence of a physical object. The language requires something that can be passed from one individual to another in order to be presented to a third party for execution/payment.

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DHS Gives Some Criminals Permanent Protected Status

 By Jessica Vaughan

In one of the most absurd examples of immigration enforcement malpractice yet, this week ICE is planning to take a pass on removing a criminal alien convicted of vehicular manslaughter. On Friday, November 16, exactly two years after Roberto Galo struck and killed motorcyclist Drew Rosenberg while making an illegal left turn in a car he was unlicensed and uninsured to drive, Galo is scheduled to be released from a California jail. Under the law, Galo is removable — but under an Obama administration policy implemented last year, officials were told to reclassify one of his offenses to allow him to stay in the United States.

San Francisco Chronicle columnist Debra Saunders tells much of the story here and here. “Fox & Friends” also covered the story, featuring an interview with Drew’s father, Don Rosenberg. Mr. Rosenberg chronicles the nauseating indifference and incompetence of San Francisco authorities and his own research on unlicensed drivers on this website. Long-time followers of sanctuary policies won’t be surprised at the role of San Francisco District Attorney and former police chief George Gascon, whose long and consistent record of contempt for immigration law enforcement makes him a prime candidate for a leadership role at ICE in this administration.

Yes, San Francisco’s policies are a real problem. But federal immigration authorities have the ability to remove Galo and spare future potential victims in spite of the local policies.

Galo is a citizen of Honduras who was living in the United States illegally before being granted Temporary Protected Status (TPS) that was decreed after a hurricane struck his country in 1998. Aliens who are granted TPS are allowed to work and to get driver’s licenses. However, Galo failed the California driving test three times, so he drove without a license. Several months before the accident that killed Drew Rosenberg, Galo was cited for driving the wrong way down a one-way street and unlicensed and uninsured driving. City prosecutors let him plead down to a fine for the reckless driving, dropped the other charges, and illegally released his impounded car to a friend. After killing Drew Rosenberg in that same car, Galo was let off of all charges except for two misdemeanors, vehicular manslaughter and driving without a license.

According to the Immigration and Nationality Act written by Congress, those aliens convicted of two misdemeanors are not eligible for TPS. Prior to last year, ICE agents could have taken custody of Galo upon completion of his jail sentence and informed USCIS (the TPS-granting agency) of his misdemeanor convictions. USCIS could then withdraw Galo’s TPS and he could be deported.

But last year, at the request of immigration lawyers in New York and Florida who handle many TPS applications, especially on behalf of Haitians, DHS issued a memo directing USCIS officers not to deny or withdraw TPS for aliens convicted of misdemeanors if they are traffic offenses or other crimes that this administration considers to be minor. These misdemeanors are to be reclassified as “infractions” and the cases are to undergo special review. According to a precursor memo dealing with New York, withdrawing TPS on the basis of such misdemeanors would be “in tension with the humanitarian purpose of the TPS program”.

If USCIS reclassifies Galo’s misdemeanor conviction for driving without a license as a minor traffic infraction, then he gets to stay.

USCIS offices are supposed to maintain a list of those cases in which misdemeanors are reclassified as infractions, and I would encourage anyone interested in how many aliens have benefited from this re-write of the law, and what offenses they have been excused of, to submit a Freedom of Information request to your local USCIS office. Instructions are here.

In her blog, Debra Saunders said it well:

It’s one thing to argue that the city [or the feds] should try to protect otherwise law-abiding illegal immigrants. I do not agree. Violating immigration law should have consequences. But in the name of defending otherwise law-abiding immigrants, San Francisco [and DHS] shields law-breaking illegal immigrants. And the consequences have been fatal.

The results of this game of public safety Russian roulette have been further quantified in a Congressional Research Service report. Using records that were subpoenaed by the House Judiciary Committee, the report found that criminal aliens who were discovered through ICE’s Secure Communities program but released under “prosecutorial discretion” guidelines went on to commit 58,000 new crimes over a two and one-half year period.

Beware any promises from DHS that its policies keep criminals and other dangerous individuals from obtaining legal status under the extensive array of benefits and amnesty programs. Clearly their definition of “criminal” or “dangerous” leaves a lot of room for error.

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