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Testimony of William D. West
Retired INS/ICE Supervisory Special Agent
U.S. House of Representatives
Committee on the Judiciary
Subcommittee on Immigration, Border Security, and Claims
June 30, 2005
I wish to thank the Chairman, the panel members and the staff of
the Subcommittee for the invitation to appear today and the opportunity
to offer this testimony. As the Nation has moved onward from the
terrorist attacks of September 11, 2001, the significant nexus between
our national security and issues related to the enforcement of our
immigration and nationality laws has become increasingly apparent.
The National Commission on Terrorist Attacks Upon the United
States, the 9/11 Commission, devoted considerable research to the topic
of immigration issues connected to the 9/11 attacks. In fact, there was
a separate staff report titled 9/11 and Terrorist Travel detailing the
background and history of those immigration issues. As that report
clearly indicated, the US Government was ill prepared for dealing with
national security threats from an immigration enforcement perspective
before the 9/11 attacks.
A handful of us who were in the immigration law enforcement
profession during that period and who also happened to be among the
very few involved in counter-terrorism efforts knew very well how ill
prepared we really were. Even fewer of us, including me, tried to sound
the alarm years before; but those efforts always fell on deaf ears.
Those in senior management positions of the Immigration and
Naturalization Service (INS) and the Department of Justice (DOJ) at the
time who could have implemented meaningful changes in that area simply
had no understanding of the issues or genuinely believed immigration
law enforcement had no significant role to play in counter-terrorism
and other national security matters, notwithstanding the fact that
specific immigration and nationality laws dealt directly with such
issues and foreign nationals (aliens), who violated a variety of other
immigration laws, were often the primary suspects in such cases.
Even the first attack against the World Trade Center in 1993 and
the related plot to destroy New York tunnels, a Federal building and
other landmarks, all of which involved conspirators who were aliens
that also violated US immigration and nationality law, failed to awaken
the senior levels of the US Government to the realization that
immigration law enforcement should have been an integral part of the
country’s counter-terrorism efforts. Those efforts only evolved very
slowly and at the local field office level, with a slight and
begrudging Headquarters level acknowledgement by the late 1990s. It
really was much too little much too late by 9/11.
The situation did change after the 9/11 attacks, at least from the
immediate perspective of the INS making manpower available to the FBI
and other agencies to assist in counter-terrorism investigations in the
months following the attacks. Ironically, the INS found itself being
limited in being able to assign Special Agents to work such matters
because many of its Special Agents did not have the requisite security
clearances. Unbelievably, INS often did not require some of its Special
Agents to have any security clearance.
With the creation of the Department of Homeland Security (DHS), and
the abolition of the INS and the formation of the Bureau of Immigration
and Customs Enforcement (ICE) as the interior immigration
enforcement/investigative arm of DHS, the assignment of ICE agents to
work counter-terrorism cases became part of the new homeland security
mandate within DHS. Those efforts were, and are, limited by the other
investigative missions of ICE (and there are many) and the number of
Special Agents within the agency (approximately 5500).
Within ICE, only about 2000 Special Agents were “legacy” INS
Special Agents who had the full background and training in immigration
and nationality law and experience conducting investigations therein.
While ICE has supposedly conducted cross-training for all its agents
(legacy Customs and INS), that cross-training appears to have consisted
of at most two weeks of in-service training, often conducted in field
offices, and sometimes it amounted to less. The rest of the
cross-training was essentially on the job.
After the 9/11 attacks, the Government implemented several changes
within certain immigration benefit and removal proceedings. Those
changes are the primary topic of this hearing and I would like to
discuss each below. Please note that I offer this testimony from the
perspective of twenty-nine years of Federal law enforcement experience,
twenty-five of which directly investigating and enforcing US
Immigration and Nationality laws as a Special Agent and Supervisory
Special Agent with the Investigations Division of the INS and
ultimately, before my retirement the end of April 2003, with ICE under
DHS. From the early 1990s, I became involved in counter-terrorism and
other national security cases, and eventually became the Chief of a
unique and specific National Security Section within the INS
Investigations Division in south Florida devoted to such cases. I have
direct, real world experience investigating foreign nationals who were
involved in terrorism, espionage, human rights persecution and
modern-day war crimes and other national security threats to the United
States, targeting those suspects for immigration and nationality law
violations within a multi-agency task force arena. This is not
academic, think-tank theoretical experience but in-the-field,
on-the-street working experience over many years and I hope that
provides the panel with a special perspective on these matters.
Hearing Closure: This process allows the Government to close
removal (deportation) hearings before an Immigration Judge (the
Immigration Court) to the public upon a motion that having the hearing
remain open/public would potentially jeopardize national security or
other ongoing sensitive investigative issues.
Shortly after the 9/11 attacks, FBI and INS agents nationwide were
flooded with leads related to that investigation, as well as off-shoot
investigations involving other potential terror threats. As those leads
were processed, and it was fully understood that no potential lead or
suspect that might in any way be linked to the attacks or another such
threat could be overlooked, the vast majority of the subjects of those
leads were identified as aliens and many of those aliens were
determined to be in violation of some provision of the Immigration and
Nationality Act.
Those early case leads, wherein the subjects were quickly
determined to be illegal aliens, resulted in the alien subjects being
arrested and detained on entirely legitimate immigration law
violations. Those were violations, however, that under normal
circumstances might have resulted in the alien being released on their
own recognizance or on a small bond. In the weeks and months following
9/11, in following up leads related to the 9/11 investigation, those
were anything but “normal” circumstances.
The Government was faced with the dilemma of aggressively
investigating these leads, identifying potential suspects during the
process of investigating those leads, and then having a viable legal
charge against those suspects that allowed for their arrest and
detention. How to process the follow up legal proceedings without
jeopardizing the larger and potentially more important
counter-terrorism lead information while still maintaining legal
control and custody over the suspect became the issue. Hearing closure
was the answer.
It should be noted that closing the hearing still allowed the
detained alien his/her adversarial due process rights in Immigration
Court. The alien was still allowed legal representation. The hearing
itself was simply not open to the public. The use of Immigration Court
protective orders was implemented to facilitate the non-release of
hearing information outside the courtroom in such cases.
As the Government has expanded its counter-terrorism investigative
efforts beyond the 9/11 attacks over the past several years, with the
augmentation of assigned ICE agents and Title-8 authorization to FBI
agents (the FBI received immigration enforcement authority just before
the creation of DHS in 2003), cases with the same scenario continued to
present themselves.
The concept is essentially a blend of “quasi-FISA” with Immigration
Court proceedings, ruling in favor of not publicly releasing sensitive
information about a case generally in order to protect an ongoing
investigation. The need to continue to have this flexibility is evident
by the fact that such cases continue to be developed within the
multi-agency counter-terrorism task force approach. It should be
reiterated, the adversarial nature and legal representation status for
the alien respondent is not changed in these closed proceedings; it is
only that such proceedings are closed to the public.
48 Hour Notification Rule: Before the 9/11 attacks, there existed a
semi-formal but generally adhered-to “24 hour” rule wherein an alien
detained in deportation matters was served with a charging document…the
old Order to Show Cause which was later replaced by the Notice to
Appear which is currently in use. Little understood by the general
public, nor even by the law enforcement community outside those within
what was INS and now ICE, is the fact that physically processing an
alien arrested on removal charges, even something as “simple” as
overstaying a nonimmigrant visitor status, can quite literally be more
time consuming and paper-complex than the processing for many felony
criminal arrests.
How can that be? The issue of actually determining if an alien is
in violation of the Immigration and Nationality Act is often not clear,
easy nor fast. It is a legal requirement for all aliens within the
United States to carry with them at all times evidence of their alien
registration, assuming they have such evidence, and if they do not it
is technically a misdemeanor criminal offense under 8 USC 1304(e).
Needless to say, violation of this provision of law is rampant, and
prosecution for this is extremely rare. However, once an alien is
determined to be an alien by an ICE agent, the alien’s status must then
be determined and it is incumbent on the alien to prove he/she is
lawfully within the United States (8 USC 1361).
If the alien does not possess any registration documents, as
required by Federal law, at the time of the encounter, the alien may be
detained until their status is determined. Even if the alien presents a
document purporting to be evidence of alien registration, with a few
short questions being improperly answered about how the status was
obtained, and if the document appears altered, (there is an abundance
of fraudulent immigration documents “out there”) it is entirely likely
the investigating agents will pursue further inquiry.
That further inquiry means conducting additional in-depth
questioning, either in the field or in the immigration office and
conducting further record checks, either via radio or cell phone from
the field or in the office. Those record checks are conducted on
immigration computer systems that are notoriously inaccurate, lacking
updated information and contain many subsystems that do not interface
with each other, thereby requiring multiple redundant checks.
Frequently, a physical review and analysis of a hard copy paper case
file, or the scanned equivalent, is necessary for a final status
determination, a case file that often is located in another field
office or stored in a central records repository. And all this is just
the preliminary workup to determine if an alien may or may not be prima
facie lawfully or unlawfully in the US.
That preliminary status process alone can often take hours, even
though determining a person is an alien usually is done in a matter of
moments. Surely, there are times when an unlawful alien who has
surreptitiously crossed the border and has no alien registration
documents immediately admits to all that when encountered and is
quickly taken into custody. Even in those cases, the full battery of
record checks through the convoluted computer systems must still be
conducted, to include the standard criminal record checks via the NCIC
system.
Once an alien is determined to be in violation of the law and
subject to a removal charge, there is a formal processing procedure
that must take place before a Notice to Appear, the charging document
is issued. In fact, there are usually somewhere on the order of a dozen
different forms that must be completed and executed in even the
simplest removal cases. The more complex the case, the more forms there
are to complete. The process of actually determining a violation and
then processing a charging file routinely can take many hours,
sometimes the better part of a work day, depending on the complexity of
the case, for one alien.
Then there is the matter of when and where the alien may have been
initially arrested and detained. If it is late in the day, and the NTA
processing might not be expected to be completed until the following
day, the alien might be temporarily detained at an immigration
detention center or local jail overnight, to be retrieved the next day
for completion of processing. This often occurs because an official who
is lawfully authorized to actually review and sign a Notice to Appear
may not be available until the next day.
These were all standard reasons why, pre-9/11, the “24 hour” rule
was in effect and generally worked. After 9/11, things very quickly
changed when INS agents, working closely with the FBI, began arresting
and detaining aliens identified in suspected terrorism related
inquiries. In addition to the usual standard convoluted obstacles INS
(and later ICE) agents faced in these matters, the very real potential
issues of national security were thrown into the mix.
Very quickly, very many of the aliens encountered in these law
enforcement endeavors also had to be queried through a battery of
national security databases. Those efforts took an additional period of
time, and the gravity of the potential results was even more important.
That is what led to the creation of the “48 hour” rule. It was simply a
recognition that in certain enforcement situations, field investigative
personnel needed additional time to not only fully determine who they
were dealing with but, under an institutional structure that, even with
the transition to DHS where some improvements have been made,
arresting, detaining and processing an alien in removal proceedings can
still be a time-consuming and labor-intensive affair.
To remove or shorten this rule without also creating a
significantly improved and streamlined infrastructure system under
which field immigration law enforcement personnel can work would be
asking those law enforcement officers, in those limited circumstances
where the rule is required, to do a nearly impossible task.
Blanket detention under Operation Liberty Shield: In March 2003,
the White House announced Operation Liberty Shield, which essentially
was a series of security and law enforcement enhancements by the
Federal Government in its ongoing international counter-terrorism
efforts. Among those enhancements was a change in detention policies
relative to asylum seekers from certain specified countries, namely,
countries “where al-Qaeda, al-Qaeda sympathizers, and other terrorist
groups are known to have operated.” The policy required those asylum
seekers to be detained for the duration of their processing period, so
the Government could “determine the validity of their claim.” The
announcement specifically cited that DHS and the State Department would
coordinate exceptions to the detention policy.
This “blanket” detention policy for asylum seekers has come under
criticism from a number of sources. The general premise for such
criticism is that asylum seekers are the very people least deserving of
detention, they are people fleeing repressive regimes and conditions
and are seeking freedom and detaining them while their asylum cases are
heard is draconian.
On the surface, such criticism might seem to have certain merit.
However, such criticism simply appeals to surface emotions and ignores
the historic reality of widespread abuse of the liberal political
asylum system within the United States. Interestingly, that widespread
abuse really began with what could also be described as the beginning
of America’s conflict with radical Islam, the seizure of the US Embassy
in Tehran in 1979 by radical Iranian “students” supported by the
Iranian government and the taking of American hostages who were held in
captivity in Tehran for more than a year.
One of the domestic responses by the Carter Administration to that
event was a so-called “crackdown” on illegal Iranian students and other
nonimmigrants in the United States. Within INS, that operation was
dubbed the “067 Project.” To no one’s surprise, INS found it had no
idea how many Iranian students were in the US. Over about a year, INS
agents were tasked with identifying, locating and determining the
immigration status of as many Iranian students and other nonimmigrants
as possible. The project identified somewhere on the order of over
30,000 such Iranian students and other nonimmigrants, a very large
number of whom were determined to have violated their immigration
status in some way or another. Those violators were arrested and
charged.
Of those Iranian students who were placed under deportation
proceedings under the 067 Project, most were intelligent, savvy young
men of some means. Many also turned out to be angry young radical
Islamic fanatics, although Federal law enforcement wasn’t quite sure
what that meant at the time. What did happen, however, is most were
released on bond and hired immigration attorneys. Most wanted to remain
in the United States. A few began filing for political asylum and that
opened the asylum floodgates…the few became very many and the system
became overwhelmed.
From the 067 Project, of the thousands of illegal Iranians who were
placed under deportation proceedings, only a handful were actually
deported and a very large number were granted political asylum. How
many of those asylum requests were legitimate is anyone’s guess, since
the process and system was, as I noted, basically overwhelmed by the
numbers at the time and the ability to investigate the claims of such
Iranians was virtually impossible, so they were essentially taken at
face value. This set the sad asylum system “standard” for years to
come, until the system saw some degree of reform in the 1990s. Fraud
and abuse within the system have been rampant for years, and were the
impetus for the eventual reforms that were put into place but which
have only somewhat improved matters.
Even with some modicum of reform, the asylum process continues to
be abused. While State Department country condition reports,
Intelligence Community assessments and NGO reports provide Asylum
Officers and Immigration Judges a better perspective on potential case
backgrounds in the generic sense, very often, specific issues
surrounding individual cases come down to the credibility of the alien
claimants themselves. This means an Asylum Officer or an Immigration
Judge must decide if the alien claimant is telling the truth or lying.
It often really is that simple, and that easy for a claimant to lie and
beat the system. They only need a believable story that cannot
otherwise be readily disproven, and sound credible to the official to
whom they are telling the story.
Within that context, within the larger framework of the ongoing war
on terror, wherein alien asylum claimants from known terror producing
countries appear and the training doctrine of al-Qaeda and other
terrorist organizations teach their operatives to seek asylum in the
West and, especially in those cases where the issue truly boils down to
the credibility alone of the claimant, combined with a system that has
a history of widespread fraud and abuse on the part of claimants,
maintaining the detention policy under Operation Liberty Shield makes
perfect sense.
Finally, it should be pointed out the policy fully allows for
exceptions to the detention policy. DHS and the State Department are
allowed, on a case-by-case basis, to consider and release asylum
claimants when such release is deemed appropriate. For this reason, the
policy really is not a “blanket” detention policy after all, but simply
one of reasoned posture in favor of security.
Trial Attorney authority to stay Immigration Judge release orders:
In certain removal cases, wherein an Immigration Judge orders the
release of an alien respondent and the Government Trial Attorney (now
DHS/ICE Counsel) disagrees with the condition of release, the
Government Trial Attorney can invoke a legal stay of the Immigration
Judge release order while the Government appeals the order to the Board
of Immigration Appeals. Since 9/11, the invocation of this process has
increased, primarily in detention cases involving aliens suspected of
linkage to terrorism or other national security threat matters.
It should be noted this authority by Government Trial Attorneys is
not something new under the USA Patriot Act or some new policy
implemented after the 9/11 attacks. The authority existed well before
9/11, since the 1990s, and has been utilized selectively in serious
criminal alien and a handful of national security deportation cases.
The process has not come into serious public scrutiny, however, since
after the 9/11 attacks when it’s usage became more widespread in
removal proceedings. This is simply a matter of more such cases related
to potential security threat issues being presented in the Immigration
Courts.
An ICE Trial Attorney must seek and receive ICE Headquarters
General Counsel Office approval before invoking the stay authority;
therefore, there is a senior level legal review of the case issues
before the authority is implemented in any given case. Further, the
invocation is generally employed when the Government possesses
additional background information against the alien respondent which it
prefers not to release in the Immigration Court proceedings, but
believes the evidence already presented would suffice upon appeal to
the BIA and the alien’s release would be detrimental to the security of
the community or pose a notable flight risk.
An important issue to be remembered in this is that while the
Immigration Judges and even the Board of Immigration Appeals are
quasi-independent semi-judicial entities, they are, in fact, officials
of the United States Department of Justice who ultimately report to the
Attorney General. As such, they are ultimately Executive Branch
officials of the Federal Government. When an ICE Trial Attorney invokes
the stay rule, he/she is essentially telling another Federal Executive
Branch official that an administrative directive issued by that
official must be temporarily placed on hold while other Executive
Branch officials review the decision and issue another administrative
ruling. It should be remembered that Immigration Court proceedings,
removal (deportation) proceedings, are not criminal judicial
proceedings…they are administrative proceedings held within the realm
of the Executive Branch of the Federal Government.
Which leads me to my summation. When it comes to immigration law
enforcement, at least the part that deals with removal (deportation)
matters, it appears that far too many people equate such matters with
criminal judicial proceedings. This may be due to a genuine lack of
understanding on the part of many; but is probably a deliberate
misrepresentation of reality on the part of at least some, who do so
for other agendas.
While there are parallels: aliens can be arrested and detained,
they are charged, they go to court, they can be represented by lawyers,
they can be released on bond in certain circumstances, they are
entitled to appeals (actually, more appeals than criminal suspects have
in the Federal court system); the process and the underlying premise
behind it all are notably different.
The process is all administrative. The rules of evidence are
different. While there are similarities, the rules of evidence favor
the Government, the prosecution, and the Federal Courts up to the
Supreme Court have more often than not upheld that posture for many
years. And, why is that? Because the entire premise of
removal/deportation is different from the criminal justice system.
If an offender is charged with a crime (and, there are actually
many immigration crimes, but we are not discussing those here), the
prosecution has the burden to prove the defendant’s guilt beyond a
reasonable doubt and if it does, the violator might go to jail…may well
lose his/her liberty; they are punished. In the immigration removal
system, the administrative process, the burden, once the Government
proves a person is an alien, falls to the alien to prove they are
legally within the US and entitled to be here (8 USC 1361). In reality,
the Government almost always has evidence the alien also violated the
immigration law, so the real litigation usually ends up over issues
related to potential relief from deportation (like political asylum).
And it is those issues that usually go to appeal…and take such long
periods of time for appeal, and why even seemingly simple deportation
cases can take literally years before they are finalized. That is
probably something the immigration defense bar does not want to have
widely known.
But, the end result in such proceedings, if the alien respondent
(not defendant) is found guilty in a deportation case, is not going to
prison, but simply they are required to go home…to return from where
they came. This is not considered a punishment, it is merely considered
a revocation of the privilege of being allowed to enter or remain in
the United States. And that really is what has been lost in much of
this.
Foreign nationals, aliens, do not have any right to enter and
remain in the United States, though I suspect many would argue they do.
Unless Congress changes the law and grants such rights, aliens still
only have a legal privilege to enter and remain here. That really is
what immigration law enforcement, on the deportation side at least,
really is all about. It is very much like a homeowner having the
absolute right to deny entry into his home of someone outside asking to
come in. And, the homeowner need not have any reason nor give any
explanation why he chooses to deny entry to the stranger. And if the
homeowner chooses to allow a guest to enter, the homeowner has the
absolute right to tell the guest to leave at anytime for any reason.
That may be a simple analogy, but the US Government represents the
homeowner for the United States of America. While we may wish to
continue allowing certain invited guests into our home, we know there
are some dangerous intruders out there who mean to do us great harm.
Employing reasonable law enforcement techniques to keep those dangerous
intruders out, and to identify and remove those already here, even if
some of those techniques might seem somewhat at odds with our
traditional criminal justice procedures because it must be remembered
they are not part of that system, is a smart common sense approach to
helping keep our Nation safe.
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