Hearing of the National Security, Emerging Threats and International Relations Subcommittee of the House Government Reform Committee
Federal News Service July 13, 2004 Tuesday
HEADLINE: HEARING OF THE NATIONAL SECURITY, EMERGING THREATS AND INTERNATIONAL RELATIONS SUBCOMMITTEE OF THE HOUSE GOVERNMENT REFORM COMMITTEE
SUBJECT: VISA REVOCATIONS II: STILL POROUS, SLOW TO FIX
CHAIRED BY: REPRESENTATIVE CHRISTOPHER SHAYS (R-CT)
WITNESSES: JESS T. FORD, DIRECTOR, INTERNATIONAL AFFAIRS AND TRADE DIVISION, GENERAL ACCOUNTING OFFICE; TONY EDSON, MANAGING DIRECTOR, OFFICE OF VISA SERVICES, DEPARTMENT OF STATE;
ROBERT M. JACKSTA, EXECUTIVE DIRECTOR, BORDER SECURITY AND FACILITATION, BUREAU OF CUSTOMS AND BORDER PROTECTION, DEPARTMENT OF HOMELAND SECURITY;
ROBERT A. SCHOCH, DEPUTY ASSISTANT DIRECTOR, NATIONAL SECURITY INVESTIGATIONS, BUREAU OF IMMIGRATION AND CUSTOMS ENFORCEMENT, DEPARTMENT OF HOMELAND SECURITY; DONNA A. BUCELLA, DIRECTOR, TERRORIST SCREENING CENTER, FEDERAL BUREAU OF INVESTIGATION, DEPARTMENT OF JUSTICE
BODY:
REP. CHRISTOPHER SHAYS (R-CT): A quorum being present, the Subcommittee on National Security, Emerging Threats, and International Relations' hearing entitled "Visa Revocations II: Still Porous, Slow to Fix" is called to order.
Entry by a non-citizen into the United States is a privilege, not a right. For a variety of reasons, a request for a visa may be denied. If those reasons arise only after a visa is issued, it can be revoked. The discretionary process of visa revocation is an important tool used by the Departments of State and Homeland Security, DHS, to protect our borders. But when a visa is revoked after the alien has arrived here, what happens?
Thirteen months ago at a hearing on visa revocation as a counterterrorism tool, the General Accounting Office, GAO, described a process riddled with flawed communications within and between agencies. Poor coordination and haphazard follow up meant suspected terrorists who entered the United States were not being tracked or removed. Parallel inconsistent data systems treated visa revocation actions differently, creating confusion about the number as well as the status of aliens no longer welcome here.
We were assured the problems would be fixed. We were told new procedures were being implemented to share visa revocation information quickly and effectively. We were assured the language of the visa revocation instrument would be reviewed to close the apparent loophole, making the revocation effective only after the alien left the United States.
We asked GAO to audit compliance with those commitments. More than a year later GAO reports some progress strengthening revocation processes, but finds continual delays and disconnects plaguing the system. Information about visa revocations based on terrorism concerns can still take weeks or months to appear on watch lists used at the border. DHS may not investigate some aliens who enter or remain in the United States on a revoked visa, and discussions of a regulatory change to permit removal of an alien holding a revoked visa seems stuck in a legalistic and bureaucratic quagmire.
Border security against terrorists depends upon multi layers of protection. One of those layers, the visa revocation process, remains partially blind and needlessly porous to incursions by individuals who might pose a grave risk to our security. We continue to look for far sharper use of the visa revocation tool to turn away or, if necessary, remove anyone intent on abusing the privilege of visiting our shores. We know all our witnesses share that goal. We don't have any doubt about that, and we look forward to their testimony.
At this time the chair would recognize Mr. Kucinich and ask if he has a statement.
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REP. SHAYS: I thank the gentleman. At this time I'd ask unanimous consent that all members of the subcommittee be permitted to place an opening statement in the record and that the record remain open for three days for that purpose. And without objection, so ordered. I ask further unanimous consent that all witnesses be permitted to include their written statements in the record. And without objection, so ordered.
At this time we'll announce our one panel, our only panel. I appreciate all of them coming and allowing us to crunch you onto one table here. Mr. Jess T. Ford, director International Affairs and Trade Division, U.S. General Accounting Office; Mr. Tony Edson, who is managing director Office of Visa Services, U.S. Department of State; Ms. Donna A. Bucella, director Terrorist Screening Center, Federal Bureau of Investigations, U.S. Department of Justice; Mr. Robert M. Jacksta, executive director Border Security and Facilitation, Bureau of Customs and Border Protection, U.S. Department of Homeland Security; Mr. Robert A. Schoch, deputy assistant director National Security Investigations, Bureau of Immigration and Customs Enforcement, U.S. Department of Homeland Security.
At this time I'd ask our witnesses to stand so I may administer the oath.
(Witnesses sworn.)
WITNESSES: I do.
REP. SHAYS: Note for the record that all our witnesses have responded in the affirmative. I think we'll go down the list as I called you, just in-the way I called you is the way you are seated.
So I'll ask you, Mr. Ford, though, to put that mike in front of you and speak nice and loudly.
MR. JESS T. FORD: Is this okay, Mr. Chairman?
REP. SHAYS: Yeah, I hear you. If you speak that loudly, we'll do well. Okay?
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REP. SHAYS: Thank you, Mr. Schoch.
Let me-I've got a couple of real long questions, but I want to ask Mr. Ford-I guess my key question is why does it take so long? Why does it take so long? Your testimony on page three says, "Immigration and Customs Enforcement would be unable to place an alien in removal proceedings based solely on a visa revocation that has not yet taken place." Help me understand that, and why that's the case?
MR. FORD: Our understanding of the process is that the revocation itself, based on the State Department's certificate, does not really take effect until an individual actually leaves the country. That they-in effect, if somebody that's here legally, they don't become-their visa status doesn't change until they actually leave, so therefore the concern --
REP. SHAYS: Why?
MR. FORD: Why?
REP. SHAYS: The status doesn't change until they leave? Why isn't it instant?
MR. FORD: Well, my understanding is-the interpretation of their legal staff is that they --
REP. SHAYS: Their legal status, or the legal staff?
MR. FORD: The legal staff of the State Department, it is my understanding their interpretation of the law is that they can't or won't change the certificate to make it either retroactive or to make it the day that they actually do the revocation. Actually, I'd prefer to have the State Department comment on that because our-you know, this is in my view a policy issue that probably needs to be discussed in terms of whether or not that's the right kind of policy.
REP. SHAYS: Mr. Edson, you want to comment on it?
MR. EDSON: I think one of the issues is the distinction between the visa, which is the travel document that allows them to apply for entry at the border, and the admission by DHS. We're revoking only the visa, so for an individual who's in the United States, unless it were to be retroactive to the date of issuance, it has not legal effect since they're already here and they're not using the visa at that point until they travel internationally. But we are now in agreement with DHS on steps that can be taken to reword that revocation certificate when it's appropriate, when DHS feels that it's useful.
REP. SHAYS: Is that something that a legislative fix could solve?
MR. EDSON: I think we have the fix now. DHS is looking at other changes on the regulatory or legislative side, but we have a way to work together when DHS sees it to be in there --
REP. SHAYS: I heard Mr. Ford say some people interpret or fail to do such and so, and I think here do they-does it need to be so specific that there's no way they can-they'll know what it is exactly; they don't have to go in there and try to interpret it for themselves?
MR. EDSON: Our preference, if I could-the revocation process is a very blunt tool. We use a very low standard of evidence when we revoke visas. We revoke most of them prudentially just because we feel it's prudent, and not because we've actually proven a thing. We are concerned that we not tie the hands of the secretary in DHS in using this tool bluntly and broadly. We'd like to be able to continue to do that and we are a little concerned about things that would open it up to further judicial review or more specificity.
If we always had to revoke in a particular way, i.e. retroactive back to the date of issuance, we're concerned that we might find ourselves using-or being forced to use a higher standard of evidence in these cases, and not-for example, we recently refused five-revoked five people's visas based on a single piece of derogatory information that clearly referred to only a single person. We had no way to know which of those five it was, so we went ahead and revoked them all because we're able to do that. If we had to use the higher standard of evidence, we'd have to spend more time trying to figure out which of the five with those matching names was the appropriate person. And that's the sort of concern we're facing.
REP. SHAYS: This is probably along the same lines, and it's a long, convoluted question so bear with me. Now, I understand we face serious legal ramifications and obstacles in removing an alien who's already in country and then has his visa revoked. And I recognize that the Immigration and Nationality Act calls for a judge to conduct proceedings to determine if the alien is then removable, and that the alien has rights to question witnesses, which I think is ridiculous, see evidence and so forth. And I further recognize that intelligence and law enforcement organization will be reluctant to disclose such potentially classified information due to releasing sources and methods.
Where or how can we meet in the middle to get a better grip on this situation and, frankly, expel potential terrorists and aliens who are here for whatever reasons, criminals, suspected terror connections, whatever, and have come to meet the criteria for having their visas revoked after they enter our borders? It seems like we're being a little too lenient on some of these people. When I had cancer they cut out a whole bunch of stuff around the cancer just to make sure we got it all. If they'd taken out just the caner part, we might have missed some of it. Thank God they didn't. Maybe that's what we're dealing with here, I don't know. Tell me.
MR. EDSON: I'd like to comment briefly and then maybe, if I could, defer to my colleague from ICE. But the situation you describe is precisely why we think the working arrangement we've come to with DHS is the best way to go. So on a case by case basis, if it looks as if the evidence is clear and the risk to the United States warrants revocation retroactively on balance against the downsides that you just mentioned, then DHS would request that of us and that's what we would do.
REP. SHAYS: Anybody else want to comment?
MR. SCHOCH: I can comment. I think first --
REP. SHAYS: Mr. Schoch.
MR. SCHOCH: -- on any situation where we had a person we identified-you know, our agents are out working, they identify this individual as being in the United States, I think first we would look at the status. We currently do that in all of our cases, whether or not this person is still conforming to the status that they were admitted for. That's first and foremost.
If they are in status and there is a national security concern that remains, then we can also-and working with the intelligence and the law enforcement community, we can get certain information that can be declassified and we can go in and work with national security ground removal-removable grounds that exist today. That would be second. We have recently-as was pointed out by the State Department, we recently had this agreement that I think also is a stopgap measure that helps us tremendously in that on a case by case basis we can now go back retroactively and now basically we have somebody who's been-who is presently in the United States who has not been admitted with a valid visa, it gives us the grounds to put that person in proceedings. We have three different ways to be able to handle that situation.
REP. SHAYS: Being basically an impatient person, does it take this long, this long, this long? And if it takes this long, why, because a lot of bad things can happen when it takes this long?
MR. SCHOCH: I think the system we have in place now is an immediate-it's immediate. We have BTS level that would talk to the State Department. These actions would be taken immediately.
REP. SHAYS: Okay, thank you.
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REP. SHAYS: I thank the chairman, and I thank the committee for their good questions, and our participants here. Basically, I have two parts to trying to sort out the issue of granting the visas and then, when we've made a mistake, how we revoke them. I want to know first have we made a lot of progress or a modest amount of progress in getting information to the right people on such a timely basis we never even issue the visa? And then when we've issued the visa and we determine it shouldn't be granted, then I want to talk about that.
So maybe, Mr. Ford, you could jump in?
MR. FORD: Okay. I want to make sure I understand your first question about the process before the visa is issued?
REP. SHAYS: Yeah, right, and the information we get to the right people so they can make an intelligent decision. It seems to me when a visa is granted and it shouldn't be, that should only occur when information-we didn't have information. But if we grant-that would deny them a visa. But when we grant them a visa when we had information but we simply failed to get it to the right people on time, then that's something that obviously I want to correct first. Let's not even give them the visa. So can I get an assessment of how we're doing there?
MR. FORD: Well, let me comment first of all on the process that the State Department employs for approving visas itself. An applicant must meet the standards in the Immigration and Nationality Act, and the consular official overseas makes a judgment whether that person is eligible to receive a visa. Now, if the State Department has some information regarding an individual, or if the consular official has some suspicions that this individual may be a person of concern, they would-in that case they would go back to headquarters and basically have that person screened by a security official here in Washington.
They may or may not grant the visa on that process. They have a, you know, technology system that allows them to send electronically information back and forth. That's real time, they can make a decision at that time whether a person should get a visa or not.
If a person does have a visa, is granted a visa, then the process changes because at that point in time the person is legally entitled to enter the United States, or at least come to our border. And the visa revocation process-if the State Department gets information subsequent to the issuance of the visa that indicates, hey, maybe we'd better not let this person in here, we'd better revoke the visa, then what they want to do is immediately get that information to the port of entry so that the DHS Customs officials can stop them from entering.
On the other hand, if the individual is already in the United States then the problem becomes law enforcement following up and finding out whether that individual in fact is a person of concern, and that's what needs to be-that information needs to be timely presented --
REP. SHAYS: I'm seeing three steps then. I'm seeing, one, what can we know first to not even grant them the visa? The second is we've granted them the visa, they haven't yet entered the country. And then the third is they're in the country, go find them. And then what do you do? We don't have a legalistic issue in the first two stages. Is that correct? That individual has no legal rights. If they came to the border of the United States, they flew in and they were not granted a visa, they can be shipped out right away. No lawyers get to-I'm seeing nodding of heads.
Is that correct?
MR. FORD: That's my understanding of it.
REP. SHAYS: Anybody disagree with that?
MR. FORD: Yes, that's correct.
REP. SHAYS: Okay.
MS. BUCELLA: Correct.
REP. SHAYS: Okay. Well, are we in a position to be able to-are you in a position to be able to assess the first two parts of that stage before I get to the whole issue of revoking the visa once they're here? Do you have-are you comfortable in assessing how well they're doing or not doing?
MR. FORD: Well, we haven't looked at the approval process for visas-we haven't looked at that recently. We have done some work a couple of years ago where we looked at the process prior to 9/11.
REP. SHAYS: Okay. So the approval process-how about once it's granted up to the border, because we had an interesting dialogue in our last hearing about that?
MR. FORD: Again, in the course of conducting this work we took a limited sample. We tried to find out the extent to which persons may have been stopped at the border. Based on information from our sample, we found that DHS had done a good job of stopping people when they came to the border when they had the information.
REP. SHAYS: Anybody want to comment on this issue?
Yes, Ms. Bucella?
MS. BUCELLA: Right now the-if there is information on an individual, the CLASS system, which is entered into when they're approving a visa or even reviewing the person's name, that-the CLASS system and IBIS --
REP. SHAYS: Is this State Department?
MS. BUCELLA: State Department is CLASS, IBIS is DHS. They are updated now on a daily basis, where previously they were updated-I'm not quite sure, either a weekly basis or a biweekly basis. But they're updated right from the Terrorist Screening Center on a daily basis now. So as to your first example, should you even give them a visa, at least the information as to what they need to look at in determining whether or not this person is or is not a known or suspected terrorist is available right then and there.
REP. SHAYS: So in theory as soon as they realize they've made a mistake granting the visa in that state, they are going to put that in the system immediately. And in theory then it is available at our border?
MS. BUCELLA: Yes, real time.
REP. SHAYS: Yes.
MR. JACKSTA: That's correct, sir. And if I can just add a little bit onto that? What happens is that-my understanding is that information is real time, the connectivity between the Department of State database and the database that's used by our officers at the port of entry. And with advanced information on the international air travelers and the commercial vessel operators, we get that information-we do the query before they actually arrive at the port of entry and that allows us to take appropriate action where necessary to meet the flight planeside.
And if we have someone who's identified as a possible high risk terrorist, that we can actually grab them right at the planeside and do our inspection in the federal inspection area. So there is a process in place. If the name is in the system, we will respond and we'll stop that person at the border and take the appropriate action.
REP. SHAYS: I just would make a point, so that in theory this should work pretty well. Steps in the right direction, though. Senator Nunn pointed out that a deer running from a hungry cougar is taking steps in the right direction. The question is, is the cougar catching up? And so it really demands that there be some speed in this process of steps in the right direction.
How much time do I have left?
REP. SCHROCK: (Off mike) -- chairman.
REP. SHAYS: No, no I -- (laughter) -- you have --
REP. SCHROCK: Good answer.
REP. SHAYS: I'd rather do a second round, but if you have a-you know what I want to do? I want to get-I want to-as-of the-I'll defer, but I want to get into the whole issue of the chart on page 14 and I want to make sure-do you all have this chart? And I'm going to be asking each of you to respond to the whole issue of-if State has listed revoked visas 338, DHS-ICE has 347 and DHS Customs and Border Protection has 336. But what's interesting is to note they're even different. The list would be bigger if we added them all up collectively. In other words, I need to have that sorted out and explained to me, if we're moving in the right direction, why that would be a different list and why-but I'd like to defer to my colleague.
REP. SCHROCK: Ambassador Watson.
REP. DIANE E. WATSON (D-CA): Yes, I had a couple of questions. In reading the analysis of the GAO report, it says that communication problems across systems persist. Now, I was listening very closely. Probably you've answered most of this, but you report that there are still no written procedures for sharing visa revocation information among agencies. And so I'd like Mr. Ford to respond to that.
And in some cases the revocation of visas takes six months or more. That's the second comment I'd like to hear. And then why shouldn't the revocation be grounds for removal, and why should not when we locate a person whose visa has expired, we have some suspicion that that person is connected to terrorism, why shouldn't they not be immediately removed from U.S. soil?
And, Mr. Ford, can you lead off, please?
MR. FORD: Okay. I believe your first question had to do with the policies and procedures in place, and actually I want to put this in some context.
REP. WATSON: If I may just interject, I notice-it was from your report of 2003.
MR. FORD: Yeah, that's correct. That's where I was going to begin. We found from our work from last year that each of the agencies-they did have policies and procedures, but they weren't very clear. They didn't have any-there wasn't much of a linkage between each of them in terms of how they were supposed to work together, and we made a recommendation in 2003 that they develop such policies and procedures.
Now, subsequent to that the Department of State in fact did develop standard operating procedures for visa revocations soon after that report was done. DHS-some components of DHS developed some policies and procedures after that. But most of the recent changes that have meant-designed to tighten this process up have occurred after the 1st of this year, generally from the spring of this year. So you have to kind of track this from last year up to where we are now. There are many more policies and procedures in place that we were advocating a year ago that are now in place at the agencies.
Your second question had to do with the-I believe was why it took six months for the Department of State-I'm-I'll just tell you that that was based on the sample that we conducted from October to November-excuse me, from October to December, and I'll guess I'll defer to the State Department on why it took them that long. But in one case it took that long.
REP. WATSON: All right.
If somebody from State can address that?
MR. EDSON: Actually, if I could, on the written standard operating procedures?
REP. WATSON: Please.
MR. EDSON: One thing that we have started working on, actually almost finished working on, taking our cue from this latest GAO report, is coordinating the SOPs of the three agencies involved here at the table, putting them in a consolidated flowchart so that we all are fully aware in writing of what the other players are doing in this process. That was a good recommendation and we're working on it.
REP. WATSON: Great.
MR. EDSON: On the revocations, in the report there were a couple of cases mentioned. It was a small sample that GAO reviewed. There were reasons for the delays. In one case the individual-when the case was sent over from TSC or-yes, from TSC originally, TIPOFF originally, it was reviewed and it was determined that it would not be revoked. Six months later additional derogatory information was made available and at that point the visa was revoked. But the gap between the original referral and the revocation was six months.
In another case the visa was actually revoked in the field by our officers for non-terrorism grounds. Six months later terrorism information came up. We felt that it was the safe thing to do to revoke it again, just to create a paper trail that was explicitly linked to terrorism, and so there was a six-month gap in there as well. But those cases-I'm not saying that all cases are that clean-all that clear. But in those cases in any event there were clear explanations for the-it was an accounting gap rather than a gap in action. There was nothing waiting for six months.
REP. WATSON: Ms. Bucella, I guess it is, I heard you say that you can identify in a much rapid fashion, and I am just thinking that we need to be able to have information and now we have the technology at our fingertips, because these people had been here a while and they're planning probably as we speak. We need to move as quickly as possible, so I would hope that these long lapses would some way be eliminated and we can move very quickly. Can you comment on that again, Ms. Bucella?
MS. BUCELLA: On the?
REP. WATSON: On the time it takes you to get the information from your agency to the others?
MS. BUCELLA: Because of the unique position that we have-we have State Department representees at our agency as well as Homeland Security and the multitude of-whether it's Coast Guard, CBP, ICE, Secret Service, we have FBI there. Because we have the accessibility to everybody else's databases we're able to update and upload the information real time right from our center. So we don't have to wait for cables to go back and forth between the different agencies, and maybe they don't get to where they need to get to. But we do it right from the same database that's going to be accessed by those inspectors at our border.
If we put the individual's information in because we found out from the State Department the person's visa was revoked, we put it into the IBIS system, they access the IBIS system right at the port and so the inspector will see right there that this person's visa has been revoked and they can deny entry right then and there. So there's not that lag time. And quite frankly, I can't comment on how long it took for the information to get to the original agencies. I can only speak to how long it's taking now since the TSC has been in operation.
REP. WATSON: Speaking-well, I argued loud and long when we were developing the Department of Homeland Security and where the visa investigations and where the visa granting authority ought to be, and I opted for the State Department because of the training and experience. I know we depended greatly in my embassy on the consul that took care of visas, and these people develop another sense to be able to detect that. Can you then instantly approach and get information from their database, say in an embassy 10,000 miles away and there's a decision made, can you put your hands on that same information, Ms. Bucella?
MS. BUCELLA: If they put that information into the CLASS system.
REP. WATSON: Okay. Are they doing that now, the State Department?
MR. EDSON: We use a consolidated global database of all of our visa transactions. All of our posts immediately reflected in a corporate database back here in Washington as a consolidated database. That's accessible from the TSC.
REP. WATSON: Very good. Okay, the other question I have, do we have any idea how many visitors with possible links to terrorism are here in the United States? And do we have any numbers to demonstrate improvement in the system? Are we catching them and are we deporting them, or whatever?
MS. BUCELLA: I can tell since the Terrorist Screening Center-the way we operate is there has to be a routine law enforcement encounter, or there has to be some sort of a screening process whether somebody has applied for a job or some type of clearance. But I could not give you how many people are here. I can say that since we've been in existence, just on the known or suspected international terrorists we have encountered here in the United States in excess of 500 since December 1.
REP. WATSON: We are hearing about cells that possibly have been here in the United States for decades. I know I got a call from someone who said that, "Men in robes and wrapped around their head," this is 10 years ago, "would come and meet in the apartment next to me late at night," and she said she was always wondering why they were meeting so late at night. So I gave that information as I heard it on to the authorities, and I do believe from the way she described what was going on there could be a connection. And I know it's almost impossible for you because you don't do the investigative work. But in other agencies there-you know, I'm purely operating on tips of this kind. Does anyone else want to comment about what you think?
MR. SCHOCH: If I can just comment first on the visa revocations themselves. Any referral that we get from the State Department is aggressively pursued to its end. We take an administrative action, there might even be a criminal action possibly that results, or we clear the person. So that on any-in this whole process, and there are many departments involved and agencies within. On any referral, which basically starts with the State Department where they notify us that there's been a visa revocation, we exhaustively look at every and all of those leads. And we're confident that we're looking at those and investigating those to the end, to where we can take an action or no action is necessary.
REP. WATSON: That information then is shared across the agencies, and we talked about procedures. But is it your feeling, Mr. Ford, that those procedures need to be strengthened?
MR. FORD: I think our view is that we want to see-the comment was made that currently the procedures of the three agencies-they're now talking to each other and they're going to share them. I think we want to see that and make sure that everybody is fully aware of what everybody else is doing, and that the next time there's a hearing on this issue everybody-we won't find the same kind of problems we found in the current report.
REP. WATSON: I thank you. And let me give my time back to the chair, and --
REP. SCHROCK: Well, the artificial chair would like to make a comment. Kind of a follow up on what the ambassador was asking.
Can we ask for the following documents for the record: letters between State Department and DHS agreeing on rewording the revocation in specific cases, and the flowchart that details the steps of all involved agencies.
Let me ask one --
REP. SHAYS: If I could just clarify? Just so-who is going to give us which of that? State and-no?
MS. BUCELLA: We'll give you the business process that we've documented out.
REP. SHAYS: And the letters?
REP. SCHROCK: I think each --
REP. SHAYS: State and DHS?
REP. SCHROCK: -- (cross talk) -- need to provide those.
REP. SHAYS: Okay, thank you.
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