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Hearing of the Immigration and Border Security Subcommittee of the Senate Judiciary Committee (cont.)

Location: Washington, DC


SEN. CHAMBLISS: Thank you very much.

Mr. Dougherty.

MR. MICHAEL T. DOUGHERTY: Mr. Chairman, members of the subcommittee, thank you for the opportunity to address you today and update you on the Bureau of Immigration and Custom Enforcement's efforts to combat terrorism and explain our role in the visa revocation process, as well as our efforts to improve information sharing within the Department of Homeland Security and with the Department of State on visa revocations and related national security information.

No mission of the U.S. government is more important than protecting the nation and the American people against future attacks. That mission is the paramount responsibility of the newly created Department of Homeland Security and the work of ICE is an indispensable part of fulfilling that mission. A very important, necessary requirement of fulfilling that mission is understanding in real time when the Department of State or another government agency has developed information about or has taken action including visa revocation with respect to an individual who has entered the United States but has not departed.

Since September 11th, the law enforcement community has risen to the challenge of increasing communications and following through on national security information gathering, intelligence sharing and dissemination. I'm pleased to be here today to discuss one important part of ICE's role in safeguarding the homeland, and that its role in investigating all referred visa revocation matters. Since this is the first time for ICE to have the opportunity to testify before the subcommittee, I'd like to take a brief moment to provide an overview of our mission.

The Homeland Security Act of 2002 abolished the Immigration and Naturalization Service, and the president's reorganization plan established ICE. ICE combines the investigative intelligence and intelligence functions of the INS and the U.S. Customs Service with that of the Federal Protective Service. In addition, the president's plan merged the air and marine division of the former Customs service and moved the detention or removal program of the INS into ICE.

The agency brings together 14,000 new employees, including some 5,500 special agents. ICE has the broadest investigative authority in the federal government. Examples of our authority include investigating immigration violations, migrant and contraband smuggling, human trafficking, money laundering, trade fraud, export violations and document fraud. Controlling the flow of goods and people within our country, verifying the authenticity of travel and identity documents and monitoring the legal transfer of funds are functions critical to reducing our vulnerability to terrorist attacks.

Meeting ICE's critical responsibility requires robust intelligence capability, air marine ability and the ability to apprehend, detain and prosecute and remove illegal aliens. ICE today is poised to bring its new authorities and its new structure to bare in combating terrorism and in particular has a key role in the visa revocation process. The focus of this hearing today is on visa revocation and I'd like to talk about how ICE is addressing this issue today and on a going forward basis.

On June 18th, 2003, the GAO issued a report entitled "Border Security - New policies and procedures needed to fill in the visa revocation process." ICE appreciates the review and the comments made by GAO, while we disagree with some of its findings. We agree with the GAO that the secretary of Homeland Security should work with the secretary of State and the attorney general to strengthen visa revocation process as an anti-terrorism tool and establish specific procedures, policies that ensure timely and direct notification of visa revocations to both the Bureau of Customs and Border Protection and ICE.

ICE considers timely notification of DOS visa revocations to be an important element in protecting the United States against the entry of inadmissible aliens, including possible terrorists. DHS and ICE have begun a dialogue with the Department of State to modify existing procedures to strengthen the government's ability to take timely action against those who have had visas revoked and should be removed from the United States. Specifically, the Department of State has agreed and is providing ICE with notice of visa revocations.

The part of the GAO recommendation in its report that is particularly relevant to ICE is the one regarding determining of any persons with revoked visas on terrorism grounds are in the United States and if so, whether they pose a security threat. In making these determinations ICE relies on information from the Bureau of Customs and Border Protection to determine if this individuals have in fact entered and have in fact departed. DHS will work closely with the Department of State to implement new procedures which we expect will be agreed on, related to management of visa revocations.

One of the initiatives we're looking forward to is a secure electronic environment to share specific information about visa revocations and in some cases including the specific basis of the visa revocation. Investigations of aliens who have been admitted to the United States but have had their visas revoked or handled from the ICE national security unit, ICE has well over 200 agents conducting thousands of national security investigations today.

When information is received by the national security unit it is handled in the same manner whether it is a visa revocation matter or specific information regarding a terrorist threat. All of these matters are taken seriously and are fully investigated, and I'd like to take a moment to make the record clear with respect to one aspect of the GAO report. ICE's records indicate that during the time period studied in the GAO report the national security unit in fact received information on 10 leads involving visa revocations.

In all 10 cases the national security unit followed standard operating procedures for such referrals and found no derogatory information related to terrorism information. Four of those individuals were found to have been outside of the United States, four were in fact in status, two were not located but it is the belief that they have departed the United States. Despite these facts, the GAO in its initial report erroneously reported that ICE did not routinely locate, investigate or take any action on individuals with revoked visas.

To the contrary, ICE has taken actions and investigates the cases it receives through the referral process. As highlighted in appendix 2 of the GAO draft report, the different standards of proof required for revocation or removal proceedings do pose significant difficulties in resolving these matters. In this context it is important to note that the information to revoke a visa is not necessarily a sufficient ground for ICE to initiate removal proceedings against an alien who has been admitted to the United States and is otherwise maintaining his or her visa.

When an alien is admitted to the United States there are certain legal rights and procedures which apply and are attached pursuant to the admission. These legal rights require ICE to present clear and convincing evidence to demonstrate that the alien is a national security threat or is removable from the United States on other statutory grounds. These hearings occur before an immigration judge. Another factor in prosecuting these revocation cases is the current language used on the revocation certificate.

It provides that if an alien is present in the United States and the visa is revoked subsequent to admission that the revocation takes effect after the alien departs from the United States. Consequently, the visa remains valid and the alien maintains lawful status while in the United States, absent any other conduct which would make the alien otherwise removable. DHS and DOS will work together to review the varying legal standards with respect to admission at the port of entry and for those aliens who have subsequently been admitted to the United States.

In conclusion, I would just like to say that deterring illegal immigration and combating immigration related crime has never been more critical to our national security. We take this issue very seriously and our mandate as part of the Department of Homeland Security very seriously as well. We are going to apply all of our resources and capabilities to the issue of looking at the visa revocation issue. Thank you.

SEN. CHAMBLISS: Thank you, Mr. Dougherty.

Mr. Ahern.

MR. JAYSON P. AHERN: Mr. Chairman and members of the subcommittee, it is a pleasure to appear before you this afternoon, and as you know, on March 1st, immigration inspectors in the border patrol from the legacy Immigration and Naturalization Service as well as inspectors from USDA as well as inspectors from the United States Customs Service merged to form the Bureau of Customs and Border Protection, as I'll refer to as CBP, within the new Department of Homeland Security.

Now for the first time of our country's history all agencies of the United States government with significant border responsibilities have been brought under one roof. The priority mission of CBP is to prevent terrorists and terrorist weapons from entering the United States. This extraordinarily important priority mission means improving security at our physical borders and ports of entry, but also means expanding our zone of security beyond our physical borders so that America's borders are the last line of defense, not the first line of defense.

In sum, CBP's missions include apprehending individuals attempting to enter the United States illegally, stemming the flow of illegal drugs and other contraband, protecting our agricultural and economic interests from harmful pests and diseases, protecting American business from theft of the intellectual property rights and regulating and facilitating legitimate trade. We must perform all of our important security mission without stifling the flow of legitimate trade and travel that is so important to this nation's economy.

As the single unified border agency of the United States, CBP's mission is vitally important to the protection of America and the American people. In the aftermath of the terrorist attacks of September 11th, numerous initiatives were developed to meet our twin goals of improving security and facilitating the flow of legitimate trade and travel. Our strategy in implementing these initiatives and accomplishing our twin goals involves a number of factors.

I would like to list some of those, and they're including improving the targeting systems and expanding the advanced information regarding people and goods coming in to this country, pushing our zone of security outward by partnering with some other countries as we've done with our container security initiative, again, pushing our zone of security outward by partnering with the private sector under an initiative known as the Customs Trade Partnership Against Terrorism, and deploying advanced inspection technology and equipment at our ports of entry.

While we've also increased the staffing at our border security ports of entry, we also want to continue to work very extensively with our partner agencies, and we want to continue to find ways to integrate systems to improve business processes and information sharing at the borders. CBP has an important role in the visa process in terms of information sharing and enforcement, identifying and preventing the entry of persons either using fraudulent documents or concealing their true intentions about the purpose of their visit or because they've had their visa revoked is a key responsibility of CBP at the ports of entry.

CBP has reviewed the GAO report and its recommendations on the visa revocation process. This process is an extremely important element of protecting our country and we take the GAO's recommendations very seriously. One recommendation of significant relevance to CBP is to ensure that we develop specific policies and procedures for the interagency visa revocation process to ensure that there's notifications of visa revocations for suspected terrorists and relevant supporting information transmitted from the Department of State to immigration and law enforcement agencies in a timely manner.

Also of relevance in the GAO recommendation is to determine if persons with revoked visas on terrorism grounds are in the United States and if so, whether they pose a security threat. CBP provides the information regarding the entry of revoked visa holders in the United States to Immigration and Customs Enforcement investigators to assist in their investigations of the security risks that may be posed by such individuals. CBP has begun to work with the Department of State, with the Bureau of Citizenship and Immigration Services and the Immigration and Customs Enforcement to address the concerns raised by the GAO office.

Since DHS now has a role in setting visa policy, CBP, ICE and BCIS will work together to develop specific policies addressing the visa revocation process. DHS will work closely with DOS to implement these policies. Together, we will make sure that the procedures are in place to ensure timely agency notification so that revocations get into the lookout systems. We believe the electronic interface between the Department of State's CLASS system and our interagency border system known as IBIS provides the best solution and a transparent, verifiable record of actions.

CBP has taken the initiative to work with DOS to find ways to improve this electronic interface to ensure visa revocation records are placed in the system for access by our CBP inspectors at the ports of entry in the United States. Again, CBP is committed to improving this process and we will continue to work with BICE, BCIS and DOS and any other relevant agency to ensure better security for the American public. Protection of the nation is our highest priority and we actively seek improvement in our own practices, and we will work with other agencies to fulfill our mission.

We know that our new agency faces great challenges in merging the border agencies and fulfilling both our priority and traditional missions. But now that the Federal Inspection Services as well as the Border Patrol have unified with Customs and Border Protection under the Department of Homeland Security, we are in a far better position to meet these challenges and accomplish those goals. We'll be far more effective working together than we were as separate agencies working in different departments, and we will learn all we can from our legacy agencies and will bring new innovation to border management.

Thank you for the opportunity to testify today, and I'll be happy to answer any questions you might have later.

SEN. CHAMBLISS: Thanks to each one of you.

Let me start with you, Ms. Jacobs. You mentioned that our consular officers are on the frontlines, which we obviously all agree with, and that there are new guidelines that have been issued to them since September 11. Have they also gone through significant retraining procedures, relative to how to spot terrorists or potential terrorists? And also in that same vein, I'm curious about how those particular offices determine that an individual who walks in that door and says, I'm Joe Smith from whatever country they're in is in fact Joe Smith?

MS. JACOBS: Okay. In fact we have done a lot of changes to the training that we gave to consular offices, with a new focus on trying to give them a certain level of counterterrorism expertise. The basic course that all consular officers go through before they go to the field is being extended from 26 days to 31, beginning this October. Our Foreign Service Institute has already added a number of classes where they bring in experts on terrorism who can talk to the consular officers about current trends, things that they should look for, how to do analysis, looking at passports, where they were issued, the dates they were issued.

We have people from our own diplomatic security also coming in to talk about counterterrorism but also fraud in general, to try to raise awareness about those issues. We also have devoted a lot more time and will have even more time spent on teaching our consular officers how to do better interviews. We're asking them to do more interviews now of visa applicants and we want to give them the training that they need to do an effective interview, and so we have contracted out with a company that is going to come in and really teach officers how to detect deception, how to really to do an effective interview.

We have developed new forms that certain applicants have to fill out, they give the consular officers more information about those particular applicants if there are certain things that ring bells or raise flags, then the consular officer can follow up and look at that in more detail.

And we've also increased the number of security checks, the actual checks that we do on applicants. Everyone who comes in for a visa is run through our automated lookout system at the time of application, and so if there's anything in that lookout system -- which by the way has doubled in size since 9/11 -- that would either make the applicant ineligible or cause the consular officer any level of concern, then that case is sent back to Washington for an interagency review.

We have other checks that have been put in place after September 11th that do the same thing. So we're checking more applicants, we've given consular officers more training, additional tools, we still are going to do more in the months to come.

SEN. CHAMBLISS: And checking those individuals' background. You ask for fingerprints or any other way of identification of those individuals?

MS. JACOBS: For certain types of applicants, after 9/11 we have the FBI NCIC entries on foreign born individuals who are in the NCIC system, and if there is someone who is a direct or a close match, yes, we do fingerprints on those people, send the prints back here to be checked by the FBI to see if it's the same person who's in the lookout system. On the immigrant side, the immigrant visa side, we do more fingerprinting of people. We will actually start collecting two fingerprints from all visa applicants, beginning October 2004, as required in the enhanced Border Security Act.

SEN. CHAMBLISS: What about biometrics? Are we using any technology in the area of biotech there?

MS. JACOBS: We have a few pilot posts where we are testing facial recognition. We've had some success with that. Our plan is to use the program that we've used in Mexico for the past few years to issue border crossing cards, where we actually collected two fingerprints and a digitized photo on each applicant. That's the system that we're going to deploy worldwide by October 26th of 2004. So at that point we will definitely be able to confirm the identity of the people coming in.

SEN. CHAMBLISS: Okay. At a House subcommittee hearing on June 18th, one of your employees, Catherine Barry, testified with respect to the revocation of visas that the Bureau of Consular Affairs was, quote, "engaged in an effort to formulate standard operating procedures, that has been going on for more than 15 months and it should be wrapped up within a month." Close quote. According to that timetable, you've about run out of that month. Can you tell me where you stand with respect to any sort of formal memorandum of understanding between State and the Department of Homeland Security?

MS. JACOBS: Okay. For our own purposes within State we have taken the rather informal procedures that existed at the time of the GAO report and put in place standard operating procedures. Those procedures are now going into our foreign affairs manual, I think the note has gone over to get that into our manual, either yesterday or it went today. I can run through sort of step by step what we're doing today on revocations if that helps. Basically we are -- whenever we get information from -- and this information usually comes from other agencies.

Whenever we get information on any individual that suggests that the person is ineligible for a visa for terrorism or any other type of reason, we take action to revoke the visa. When we make that decision we immediately put the revocation code into the lookout system, into our lookout system which is then shared with IBIS, which is the system that's available at the ports of entry. A certificate of revocation is prepared which I sign.

As soon as it's signed it is faxed, now to BCBP, to the National Targeting Center. At the same time a telegram goes out to the post, but it also includes DHS and FBI as addressees so that they know of the action that's been taken. If we know that someone is in the U.S. after a visa has been issued, then we also notify the Foreign Terrorist Tracking Force, the FTTF. As far as setting up standards or an MOU with the other agencies, I think we're all still talking about that, we haven't done a formal MOU.

We are of course talking about an MOU with DHS on Section 428 of the Homeland Security Act, that talks about how we're going to share the visa function.

SEN. CHAMBLISS: Well, I would just say that it sounds like you're making progress, but I mean, here we are in the middle of July in 2003 and I happen to agree with the comments in the GAO report, that the lack of a formal process and procedure and memorandum of understanding between State and the Department of Homeland Security creates a systemic problem with respect to visa revocation. And I think you need that written memorandum, I hope you'll proceed to do it immediately so that everybody's on the same wavelength and everybody in every single office knows exactly what's going to happen as soon as a revocation takes place.

If we're going to give the people in this country the security they're demanding, that's got to happen.

Senator Cornyn.

SEN. CORNYN: I just want to try and understand, in the context of what happened on September the 11th in terms of the revocation process and its implications for national security today. If, as was the case for two of the 9/11 hijackers, two of them were identified as possible terrorists. What you're saying is, if a visa's already been issued it can be revoked, but those people can still lawfully stay in the country. Could you address that, Mr. Dougherty? I believe you were talking a little bit about that.

MR. DOUGHERTY: Yes, Senator. When someone has been admitted to the United States, in the initial instance the Bureau of Customs and Border Protection will make a determination at the port of entry regarding inadmissibility. If they do not have the information available to them with respect to whether the person is inadmissible, perhaps in the case that they're a terrorist, they're of course admitted. If information is subsequently brought to light that would cause the revocation of the visa it matters entirely what the basis of that revocation was, with respect to the options of ICE to remove the person.

If the ground for revocation was specific information regarding membership in a terrorist organization or having engaged in terrorism or providing material support for terrorism, that may provide a legal basis for removal. If the ground was for some other reason, for example in the context of the group of revoked visas that I believe were under review in the GAO report, those were prudentially revoked. In other words, to my knowledge and understanding of the situation they were not necessarily revoked because of specific information with respect to a criminal act or ground of inadmissibility, but many or all cases were revoked because there was not sufficient information received back by the Department of State with respect to whether these people were in fact inadmissible.

So they were prudentially revoked. For that population, for ICE to not understand the basis of the prudential revocation or not be provided with a specific ground for the revocation we would have no legal standard.

SEN. CORNYN: So if it's revoked on the basis of suspected terrorist connection, you used the word "may" be revoked. Why isn't it a certainty as opposed to may, and if it's may, how long does that legal proceeding take before you can expel them from the country?

MR. DOUGHERTY: There are a number of factors. I said may with respect to providing a legal ground to pursue removal, and the may stems from the strength of the information, the level of classification of the information. In some cases, whether we have the ability to present witnesses to support the information and whether we have the ability to declassify, working with our partners in the intelligence community, that information for use in the proceeding.

If you satisfy several conditions in the context of an alien who has been admitted, you may in fact be able to prove a terrorism charge against that person.

SEN. CORNYN: So how long does all this take?

MR. DOUGHERTY: There is no timeline. It is a legal process, there are confrontation rights, they are administrative proceedings. There is the presentation of fact witnesses, the presentation of documentary information. So these things can take a significant amount of time.

SEN. CORNYN: Are there any watch lists that are not shared with state and local law enforcement authorities? I'll throw that out to any one of you, maybe you could start, Mr. Dougherty.

MR. DOUGHERTY: Senator, your question is, are there watch lists that are not provided to state and local law enforcement?

SEN. CORNYN: Exactly.

MR. DOUGHERTY: Speaking on behalf of ICE, I do not believe we maintain any watch lists that would not be shared. There may be other lists available in the U.S. government, and I just don't know how they're shared or not shared.

SEN. CORNYN: Ms. Jacobs, you were talking about the lookout watch list. Is that shared with state and local law enforcement authorities?

MS. JACOBS: We don't share the lookout information that we have because it's related to -- it's to help consular officers and others try to identify visa applicants who might be ineligible for visas. There has been discussion from time to time in trying to get the tip off, the terrorist related information that's in our lookout system, into the hands of people who might be able to share that with local law enforcement agencies, and I think that discussion is ongoing.

But certainly for our part, the State Department, we don't have any direct sharing with local law enforcement.

SEN. CORNYN: Well, I think Mr. Dougherty talked about the difficulties of expelling someone whose visa has been revoked, either prudentially or based on concerns in connection with terrorism. If someone's on the tip off list and comes into the U.S. and subsequent intelligence information makes it look like they're a significant security concern, are there other steps that are taken with regard to providing information to law enforcement? Other than revocation of that person's visa?

MS. JACOBS: Talking about tip off specifically, that information -- any lookouts based on information received from other agencies that is part of the tip off program goes into both our lookout system and into IBIS. So that information is automatically shared with the ports of entry. As far as the revocation issue, I think sometimes becomes a little bit complicated because we revoke visas for different visas. And I think part of the issue that was addressed in the GAO report has to do with prudential revocations and perhaps if I could just describe what a prudential revocation is, that might address some of the --

SEN. CORNYN: Let me try to rephrase the question and get to the point of my concern. State Department, Department of Homeland Security and other federal agencies, the FBI, generate important information. And I want to know how much of that, whether it's the lookout list which you said is just mainly for consular use in determining whether a visa is actually issued, but whether someone's on the tip off system, whether that's made available to a police officer in Austin, Texas, who may come in contact with this person, or the Dallas County Sheriff.

Is that information shared with local law enforcement officials like that?

MS. JACOBS: I think at this point in time there's no mechanism in place to share that information. I think there are discussions going on about a more centralized system where in fact that information would be shared with local law enforcement agencies.

SEN. CORNYN: So we've got a suspected terrorist, you can revoke their visa if they're already in the country, but you may not be able to expel them unless you've got the evidence sufficient to actually prove it before an immigration judge, and we don't share the information currently with local or state law enforcement officials, is that correct?

MS. JACOBS: To the best of my knowledge, that's correct.

MR. DOUGHERTY: Senator, I think I could amplify on one procedural area which may address your concern. I understand there are discussions about providing the tip off information with state and local law enforcement. However, today, through the Law Enforcement Support Center within ICE, state and local law enforcement officials who encounter aliens have a mechanism to inquire with respect to their alienage and deportability, whether they have a prior conviction, for example, and whether they have an order of deportation.

Part of the procedures performed at the law enforcement support center would be to check all available databases. If there were in fact a lookout, it is my understanding that the lookout would be surfaced by the review done by the LESC, and then appropriate action would be taken.

SEN. CORNYN: I'm not sure I understood all that, Mr. Chairman, but I'll certainly follow up, but at a later time. But my concern is that there may be other law enforcement resources available, either to observe the activities of someone who represents a national security threat and who under current procedures, if as you describe it, if that's correct, that we can't address beyond revocation of their visa but they still remain in this country pending further legal action and a substantial burden of proof that has to be made before an immigration judge.

Thank you, Mr. Chairman.

SEN. CHAMBLISS: I will tell you, Senator, I share that frustration. Folks, I know you all are working hard and you're doing a better job than what we were doing on September the 10th, but now there is a mechanism to share that information. And when I hear that we are not sharing information with respect to suspected terrorists who we know are in the United States with state and local law enforcement officials, I don't mind telling you it infuriates me.

There is a system in place, through the FBI, through the NLET system, where we can get that information in the hands of 15,000 law enforcement agencies across this country immediately. And for us to not be doing that today is not giving the best protection to citizens of the United States. And it just infuriates me that we're still not doing that.

Senator Durbin.

SEN. DURBIN: I concur with you completely, Mr. Chairman. I think all our talk about homeland security means little or nothing unless state and local law enforcement's involved in it. If there's a problem in Illinois, they're going to call 9/11, not Senator Durbin. And if the local law enforcement doesn't have the right information and resources, then they can't very well respond. I feel the same way you do about it.

I'd just ask of the panel, anybody can answer this, at any given time, how many people are in the United States illegally? Rough guess? Anybody? Anybody? Okay. How many are in the United States on expired or revoked visas at any given time? Hmm. Mr. Ahern, isn't that your area of responsibility?

MR. AHERN: Not exactly. We're actually responsible for the admissibility determinations at the ports of entry and once they've then entered the United States, then that becomes --

SEN. DURBIN: Ms. Jacobs, is that yours?

MS. JACOBS: Once someone has come in to the States we have no way to track their whereabouts. That usually is DHS' responsibility.

SEN. DURBIN: Well, Mr. Dougherty, you're the last one in line here. So can you answer the question?

MR. DOUGHERTY: I can answer with respect to what our responsibilities are. Which is --

SEN. DURBIN: But numbers? Do you have any ideas how many people in the United States at any given time are here on expired or revoked visas?

MR. DOUGHERTY: I do not have the specific information with respect to that. There are I believe estimates out there, which we would be happy to --

SEN. DURBIN: If you want to ask your staff, this is not the final exam, so you can ask your staff.

If anybody does know, I'd like to put it on the record if they do know. Maybe you could get back to me with that.

MR. DOUGHERTY: We would be happy to get back to you, but I would also like to point out that there are significant organizational efforts ongoing within the Department of Homeland Security with respect to tracking the sorts of things that you're concerned about and that you raised in the prior panel. Specifically you mentioned the area of entry-exit. We now have the US VISIT system, which has many components. ICE does not have responsibility for all its components, CBP and others have responsibility as well.

But it is an effort to understand who has been admitted lawfully, understand what they are doing here while they're here and understanding when they leave, and tracking those who do not leave in a lawful manner. So I hope that some of your concerns are addressed in that respect.

SEN. DURBIN: And I hope you'll get -- someone on the panel or all of you will get back to me with that information, because I think this really gets down to the heart of it, as to what we're dealing with here. How many people are in the United States at any given time illegally, undocumented? How many people are here on expired or revoked visas? So we have some kind of idea the universe we're dealing with here. We know how many visas we issue each year, do we not, Ms. Jacobs? That would be in the range of 10 million?

MS. JACOBS: This year, around 6 million.

SEN. DURBIN: Six million this year? Okay, 6 million. So if we know how many other people are here, either on expired or revoked visas or without any documentation, we at least have an idea of the nature of our challenge. And so the administration decided some months ago to start asking people from certain countries, visa holders, to come in and register. And they chose as their profile those who were from Muslim Middle Eastern countries.

And as I understand it, all of the visa holders from those countries came in and registered -- were asked to come in and register it. I'm sorry, adult male visa holders were asked to come in and register it. And how many did come in and register under that program? Ms. Jacobs, do you know?

MS. JACOBS: I don't have the exact numbers. I believe that over 100 nationalities were registered, but I think either Justice or DHS might have the actual numbers.

SEN. DURBIN: Anyone from DHS know the answer to that?

MR. AHERN: I don't have the particular numbers are far as those that were involved as part of the NSEERS program, I believe you're referring to, but would be happy to get some numbers and submit them to the record after, sir.

SEN. DURBIN: Okay. Well, I'm going to give you some numbers that I've heard, just speculative numbers that some 80,000 people registered and some 13,000 were deported as a result of it. And it raises some important questions, because if these Senators had the experience I did, they got a lot of phone calls from people who said, "My son was at college. He applied for an extension on his visa and he didn't get it, now he's been deported. What are you going to do about that?"

It's a good question. And it's a question that's been asked of my office many times. It goes to the heart of the point made by the chairman and by Senator Cornyn, too, the heart of their question in their statement about cooperation with state and local law enforcement. This is a little tricky, because if the purpose of our endeavor here is to gather intelligence to try to try to forestall or thwart terrorism we need the cooperation of a lot of people, including visa holders who could be friendly to us and helpful to us.

But if registering with our government means being deported tomorrow, the likelihood that they'll register and cooperate is diminished. I've run into this problem talking to people from the FBI. They know how to gather intelligence, but they can't do it by fly specking every potential immigration violation and visa violation and telling people they're going to be thrown out of the country. And I think that's part of our challenge, is to try to strike that balance there where we get good intelligence, good information to thwart terrorism, and try not to go to far towards Franz Kafka in the way we enforce it.

Thank you, Mr. Chairman.

SEN. CHAMBLISS: Senator Sessions.

SEN. SESSIONS: Thank you. I think I've got a handle on this issue from the grass roots, having been involved in it personally. And I would have to say that the ICE group has been very supportive. Traveling around my state talking to local law enforcement like I've done for many, many years, I learned that they have no ability to participate in immigration enforcement at all. It may be shocking to most Americans to know that a police officer who catches a group of people that he has every reason to believe are here illegally basically does nothing. He lets them go.

I ask, well, don't you call INS or the old INS, I guess it's now ICE, they said, no, they don't even bother. They told us if we have 18 or more to call them, otherwise let them go. And so you ask, what about people who have been identified and connected with terrorism? Is this getting out to locals? And the answer is no, it's not getting out there. We've got this list of databases, the consular lookout and support system, not shared according to this chart with state or local agencies. Tip off, not shared with state or local agencies. IBIS I guess, Interagency Border Inspections, is that IBIS?

Not shared with local and state agencies. Nor is the automated biometric identification. The truth is that our immigration agencies keep it a secret. You say, oh, they can access it. A local law enforcement officer in his automobile who makes a stop does not know how to access any of the immigration agencies. He knows how to access NCIC. So my first question, Mr. Dougherty, could not you put in NCIC the names of the people that you think are wanted as terrorists, who have revocations, who have skipped bond on immigration charges or have otherwise illegally here?

Could you not do that? And if you don't, why not?

MR. DOUGHERTY: That's not a yes or no answer, Senator. So I --

SEN. SESSIONS: Well, we don't have 30 minutes, my time's running, so first of all, it's not in there, is it?

MR. DOUGHERTY: There are a variety of different types of individuals you've referenced, and --

SEN. SESSIONS: Well, let me ask you this one. Let's say a person has had his immigration revoked, he's had a hearing, he was released on bail and he skipped. Is that in the NCIC routinely, if it's not a terrorist act?

MR. DOUGHERTY: Today someone who is in the middle of their proceedings, who does not have a final order of removal or a warrant of deportation is not in --

SEN. SESSIONS: What about after the warrant has been issued?

MR. DOUGHERTY: We are working to input all warrants of deportation for people who have not been removed into NCIC.

SEN. SESSIONS: When did you start that?

MR. DOUGHERTY: I don't have the exact date, I know we've been working on it for some time.

SEN. SESSIONS: Well, it wasn't true September 10th, was it?

MR. DOUGHERTY: Senator, it may have been, I don't know.

SEN. SESSIONS: Let me get this straight, because I want you to hear it -- you're on the record, and I'd like a good answer about it. Are you telling me that you have a plan to put in the NCI system every person that's in this country illegally for whom a warrant has been issued for their arrest for immigration violations?

MR. DOUGHERTY: For warrants of deportation because they were here illegally or violated their status, that is correct.

SEN. SESSIONS: Is there any other kind of warrants, other than warrants for deportation?

MR. DOUGHERTY: For the administrative part of the Immigration Act, no. There's a warrant of deportation or removal.

SEN. SESSIONS: And so how far along are you in doing that? What percentage do you have in there?

MR. DOUGHERTY: I don't have the specific figures, I'd be happy to supply them.

SEN. SESSIONS: You're here to testify to this committee, don't you know how close you've gotten to achieving this event?

MR. DOUGHERTY: I don't have the figures available to me. I will tell you --

SEN. SESSIONS: Ten percent? Ninety percent?

MR. DOUGHERTY: Sir, I don't have the figures. I will tell you, though, that I have testified before other bodies in Congress about various issues related to this subject, one of which is that the truth is out there on this subject. There are 300,000 people or so in this country who have final orders of removal. Who have not been removed.

SEN. SESSIONS: All right. Have we got -- how many people are in NCIC now?

MR. DOUGHERTY: As I said, I don't have those figures.

SEN. SESSIONS: A lot of them?

MR. DOUGHERTY: We certainly have a project in line to get them entered.

SEN. SESSIONS: But you do? They're going in to NCIC today?

MR. DOUGHERTY: Yes, a sub file within NCIC, that's correct.

SEN. SESSIONS: Is that not a critical connection for the local law enforcement, so they can be participants actively in apprehending people who violate immigration laws?

MR. DOUGHERTY: Absolutely, I agree with that. As well as, as I did mention before, the law enforcement support center, where the patrol officer in his car, if he is aware of it, can contact ICE now through the Law Enforcement Support Center and get specific information about the immigration status of the person they have encountered, whether it's pursuant to an arrest or an encounter on the side of the road.

SEN. SESSIONS: And he has to access a separate system? And how does he do that?

MR. DOUGHERTY: Well, in fact I don't think he does have to have access through a separate system. I believe they are through -- I think it is through NLETS that there is a connectivity to the Law Enforcement Support Center, and I'd be happy to provide the specifics of the connectivity back to the committee.

SEN. SESSIONS: It's got to be simple for an officer out there, with all the things he's got to worry about, it's got to be simple for them to be able to access this, otherwise you might as well not have it. What we found, Mr. Chairman, is that Florida went from doing four checks on your basic system -- what's your basic system that has the -- your system, the ICE system now?

MR. DOUGHERTY: You're probably referring to the central index system.

SEN. SESSIONS: I think so. Florida went -- after they began to study this system and train people, they went from three inquiries into that system to 89,000. Three, which is basically zero, to 89,000 in one year. Alabama, they're training our state troopers, not our state police and sheriffs, for which there's 100 for every state trooper, we're training our state troopers to access the system. But we've created a system that has the appearance of working but doesn't really work, because you've got -- for every ICE agent in America there's at least 1,000 state and local agents.

They're the ones out there on the streets, and if they're not empowered, energized like you said, Mr. Chairman, to connect to this system, we're not getting anywhere. And I know you'd like to do that because of the experience we've had with Alabama and you'd like to see that expanded, but it's awfully -- it takes a lot of time and work.

MR. DOUGHERTY: Senator, my understanding, last year there were in excess of 400,000 queries from state and local law enforcement to the law enforcement support center. It is central to our role --

SEN. SESSIONS: But 100,000 came from Florida. So I mean, they probably -- you could have 4 million if everybody was working the system, wouldn't you agree?

MR. DOUGHERTY: There would be a large number, and we are committed to working with state and local law enforcement on that issue.

SEN. SESSIONS: Would you submit in writing to us how far along you've gotten in entering this information in NCIC?

MR. DOUGHERTY: Yes, Senator.

SEN. SESSIONS: Thank you, Mr. Chairman.

SEN. CHAMBLISS: Mr. Dougherty, you mentioned in your response to Senator Cornyn earlier that there were 10 cases that you had investigated were revocation had taken place where four of them you knew had left the country, four of them they were not sufficient violations to -- I believe you said to expel them, and two of them you didn't know whether or not they were in the country. That too is very troubling, and I know if -- with 6 million last year, and I assume that's down, Ms. Jacobs, following September 11, that it is difficult, as Senator Sessions said, it's a lot of work.

But there were the two individuals that Senator Cornyn referred to out of the 19 September 11 hijackers, al-Hazmi and al-Mihdhar, who were put on the watch list, should have been on the watch list before they ever got in the country. But they were put on in August of 2001, and we were unable to locate them, just as you were unable to determine whether or not two of those 10 or 20 percent of those 10 were located in the United States.

And I don't know what the answer is to that, and I'm not criticizing you or the system at this point, but we have got to be working towards a system that will allow us to keep up with those folks and to know where they are while they're here. The one visa system that we have that does allow us to do that, even though there are other abuses involved in it, but H1B allows us to track them and we do track them and we're very, very successful in tracking those folks under that program.

Mr. Dougherty, the GAO report shows that BICE is hamstrung. The agency doesn't have the authority to remove a person based on a revoked visa alone, even if the visa is revoked for serious security concerns. Are you confident that none of the 240 individuals that were identified in the GAO report are still in the United States?

MR. DOUGHERTY: First, I would not agree with the characterization in the GAO, and I can expand on that later. With respect to the 240, as I've mentioned, we've received notification of 10, and pursued those investigations. With respect to the two you've mentioned that we've not been able to locate, we continue to look for them through a variety of means. It is not the case that an initial inquiry was conducted and they were not located and we stopped looking.

We continue to look for those individuals.

We have received a continuing population of information with respect to revoked visas from the Department of State and determined that some subsection of those may have in fact been admitted to the United States, and we are in the process of verifying whether they are in fact still here. I do not have available to me at this moment the breakdown of the progress on that. What I can tell you is we have a system in place to do it, we have a lot of organizational focus to do it, to find them and locate them.

We view that all 5,500 of our special agents are available to find people who we want to find, particularly those who have had their visas revoked where there is some concern about a national security issue. When those people are encountered, there needs to be a case by case determination with respect to what legal authority ICE might have to remove them. I summarized some of the issues. Again, if the sole basis was on either classified information or a mix of classified and unclassified information with respect to terrorist activity, there are numerous procedures that must be gone through and certain legal standards which may be met.

There are other instances where you may be able to establish some other ground of removal for a person who has been found to be here, like they did not comply with the terms of the visa. There may be derogatory information with respect to security concerns, but the person may not have followed the provisions of the visa and the purpose for which they were admitted to the United States. A good example of that might be a student who is out of status, a student who did not follow the course of study they said they would follow.

SEN. CHAMBLISS: Senator Grassley cannot be here with us today but he is one who requested the GAO report be done. He sent me a memo and has asked a couple of questions here, and I want to take a minute just to go through that memo and to ask these two questions. The two questions are directed to Ms. Jacobs and Mr. Dougherty with respect to a visa revocation loophole that should be a security concern.

Senator Grassley states that he remains frustrated and concerned about the lack of willingness to change the language on the revocation certificate. As the revocation certificate is currently written, Homeland Security officials do not have the authority to deport aliens whose visas have been revoked on terrorism grounds. This defies common sense. The certificate says that the revocation is effective immediately, quote, "unless the alien is present in the United States at that time." Close quote.

Once here, they're untouchable, unless there is separate inadmissibility grounds. Last week the State Department briefed subcommittee staff and asserted that they have now decided to make no changes to the language. State Department officials said they have consulted with Homeland Security and have agreed to keep the certificate as is. Today Senator Grassley received an official response from the State Department that gives in his words, "a week justification for the current language."

State says if an alien has been admitted to the United States there is no legal precedent indicating that if a visa were revoked effective immediately it would facilitate Homeland Security's ability to remove the alien from the United States. For example, it is unclear what removal charges could be filed against the alien. As an initial question, Senator Grassley would like to ask the Bureau of Immigration and Customs Enforcement to state whether they are either okay with the current language or whether they would like to see it changed.

Second, Senator Grassley would like the State Department to explain its rationale for not needing a change to the language in the post 9/11 environment, particular if Homeland Security is saying that the change would help its enforcement mission. Mr. Dougherty, we'll refer you to the first question.

MR. DOUGHERTY: Senator, clearly it is a challenge to ICE to have a visa revoked for someone who has been already admitted to the United States and have to react to it. The clear language on the revocation provides for the fact that the visa will not be revoked until the person departs. The challenge for ICE for people who have been inspected at the border and admitted is that they are in a different legal posture than if they are knocking on the door at the port of entry.

And there is law regulation and significant case law with respect to the legal procedures that have to be followed and the rights that those people have. That being said, it does pose a complication for our enforcement operations. Today, as I have said, we have to pursue removal proceedings if there is a legal basis to do it, based on national security information, information that they're tied to a terrorist organization, that they've committed a crime that they didn't disclose prior to entry or committed a crime subsequent to entry, or a variety of other things that would have made them subject to removal.

If there were an environment in which the visas were revoked, retrospectively such that they would have been inadmissible at the time of entry, then we believe it is from a legal point of view that it would improve our ability to remove these people. This is highly subject to legal interpretation, it will require legal judgments. But again, to reiterate, if there were a situation where the revocations could be made retroactively effective as if they had been revoked at the time the alien was admitted we believe it would improve our enforcement posture.

SEN. CHAMBLISS: Do you have any authority to incarcerate individuals who are suspected of terrorist activity after they are admitted? When you find out that information, subject to them being admitted?

MR. DOUGHERTY: Yes, sir. Yeah, I mean, there's broad authority within the Immigration Act --

SEN. CHAMBLISS: Is that PATRIOT Act authority, or is that pre PATRIOT Act?

MR. DOUGHERTY: Pre PATRIOT Act, it has resided in the Immigration Act for some time.


Ms. Jacobs, I believe the second question was directed to you.

MS. JACOBS: Regarding the language used in the certificate, we are talking to DHS about different types of scenarios or situations that can happen. For example, if someone shows up at a port of entry, we've issued a visa, we didn't have any derogatory information at the time the visa was issued. But now that the person is at the port of entry knocking on the door to come in, suddenly DHS, the inspectors are aware of information that we didn't have before.

We are willing to consider revoking that visa right at the port of entry to make it effective immediately, in order to make it easier to have the person excluded from the United States. And we in fact would change the language of the certificate at that time. We've talked to DHS about this, we want to set up standard operating procedures for doing it. In the mean time, we're willing to do it on a case by case basis. My understanding is we don't have a case yet where we've been asked to do that.

As soon as we get one, we are going to be looking at that and we'll be looking at the language used in the certificate. For people already in the U.S. the reason that we haven't changed the language in the certificate at this point is because of the legal issues involved about whether revoking a visa of someone already here in the U.S. is a ground for DHS to remove the person from the U.S. The lawyers are talking about that, and I think until we address some of the legal issues that there really wouldn't be a point in changing the language in the certificate.

SEN. CHAMBLISS: Okay. Well, thank you very much to each of you, and let me say, as I said earlier, you all have a tough job. You're on the frontlines of fighting the war on terrorism, and we're winning, and we're winning because you and your people are working hard, and I hope you'll convey to all of your staff and your employees how much we appreciate their dedication and the hard work they're doing. But at the same time, I hope you understand that there is a high level of frustration on the hill with respect to a number of issues regarding homeland security.

And in particular, visas, and particularly with respect to the lack of information sharing among our federal agencies. I have a personal goal of when I leave this place of making sure that when somebody walks into a Delta Airlines counter in any part of the world and buys an airline ticket, that the information automatically flashes up if there's any question about that individual. And that information has got to come from your sources.

And we're a long ways away from ever getting to that point, but if we're going to give the people of this country the protection they demand and deserve, we've simply got to continue to work harder than ever to make sure that we're moving in the direction of gathering the necessary information and disseminating that information to the right people, including all the way down to the state and local level. Because those are the folks.

Ms. Jacobs, you're exactly right. Your consular folks are on the frontlines when it comes to letting people in this country, and once they get here those folks at a state and local level are on the frontlines, and they need that information in order to be able to protect folks. So again, thank you for the great work you're doing, this has been a very informative hearing, we appreciate you and we look forward to continuing dialogue with you on all of the issues we talked about today.

The hearing will be adjourned.

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