9/11 Law Enforcement Privacy

Prepared by: J McCloskey

,w index: INS 2.15
Date Prepared: 5/23/03 DOC Number: 888595
Job Code: 320172

Record of Interview
Title Exit Conference with Immigration and Naturalization Service
(INS)
Purpose To obtain INS officials views on our findings regarding the INS
role in the visa revocation process.
Contact Method In person
Contact Place INS Building, Room 3241
Contact Date 5/22/03
Participants Dept. of Homeland Security
Cathy Muhletaler, ICE/BCIS legal (formerly INS legal)
Tim Goyer, CBP/Lookout Unit (formerly INS Inspections)
I 1 CBP/Lookout Unit
James Hayes ICE/INV (formerly INS National Security Unit)
n
lOIA
JCBP/Audit Liaison

GAO
John Brummet, Assistant Director
Judy McCloskey, Senior Analyst
Nancy Finley, OGC
Mary Moutsos, OGC

Comments/Remarks:

We provided the INS officials with our preliminary findings in written form (DM#887190) and
asked for their response. The officials made comments on the following findings (finding are
italicized, INS responses are in regular font).

• The INS and the FBI did not routinely attempt to locate or investigate any of the individuals
who entered the United States either before or after their visa were revoked and who may still
remain in the country; thus, they did not attempt to clear, remove, or prosecute any of them.
Due to congressional interest in specific cases, INS investigators located four of these people
in the United States but did not attempt to locate other revoked visa holders who may have
entered the country. INS officials told us that they generally did not investigate these cases
because it would be challenging to remove these individuals unless they were in violation of
their immigration status even if the agency could locate them. A visa revocation by itself is not
a basis for removal.

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9/11 Law Enforcement Privacy

\\d by: J McCloskey Index: INS 2.15

Date Prepared: 5/23/03 DOC Number: 888595
i \b Code: 320172

i Mr. Hayes said that the last sentence of this paragraph is the key reason why INS does not
: routinely follow up on revocation cases. He said that we "buried it here" at the end of the
i paragraph and should move it up in the paragraph.

Jsaid that INS priority for following up on individuals is when the intelligence
community comes to them and asks for assistance. In those cases, the revocation is irrelevant.

• INS Lookout Unit Did Not Consistently Receive Notifications

Table 1: INS Lookout Unit Receipt of Revocation Notification for 240 Cases

Cases in which the Lookout Unit received notification 197

via faxed revocation certificate 150
via revocation cable only 47
Cases in which the Lookout Unit did not receive notification 43
Source: GAO analysis of INS Lookout Unit documents.
Lookout Unit officials had documentation to show that 150 faxed revocation certificates were
received in the unit. These faxed certificates reached the unit, on average, within one to two
days of State enacting the revocation. For 90 cases, however, the documentation provided to us
did not indicate that the Lookout Unit had received a fax. This was mitigated in 47 of these cases
by the receipt of a revocation cable, although this backup method of notification was less timely
than the fax. In cases where the cable was the only notification received at the Lookout Unit, it
took, on average, 12 days for the Lookout Unit to receive the cable, although in one case it took
29 days. According to an official from the INS communication center, because the cables were
marked "information only," they were routed through the Inspections division first, which then
was supposed to forward them to the Lookout Unit. He told us that if the cables had been
marked as "action " or "urgent," they would have been sent immediately to the Lookout Unit.

I jsaid that nothing has changed recently regarding State's inconsistency in notifying INS
of visa revocations on terrorism grounds, either by fax for by cable. She also told us that State still
is not putting the VRVK code into IBIS.

• In some cases, Lookout Unit officials misinterpreted information on State's revocation

certificate and, as a result, entered incorrect information on an individual in IBIS that could
have prevented an INS inspector from stopping the individual at the border. This was because
the revocation certificates listed the individual's date and place of birth but did not list his
nationality, even though State had this information. For 21 of the 240 cases, Lookout Unit
officials assumed that an individual's place of birth and nationality were the same and thus
entered the individual's place of birth as his country of citizenship in the IBIS lookout, even
though this was incorrect.

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9/11 Law Enforcement Privacy

Prepared by: J McCloskey Index: INS 2.15

Date Prepared: 5/23/03 OOC Number: 888595
Job Code:320172

I Isaid that the lookout unit did not misinterpret information the revocation certificates.
She said that the certificates did not clearly identify the individuals' place of birth. (Note: After the
meeting, I reviewed all 21 cases and changed the wording of the draft report text to reflect that
some, but not all, were misinterpreted by INS.)
• 'Data in the Nonimmigrant Information System (MIS) do not have complete arrival and
departure records for all non-U.S. citizens. It records legal arrivals and departures of foreign
citizens through the collection of 1-94 forms, which aliens are required to fill out and turn in to
inspectors at air and sea ports of entries but not at land ports (Canadians and U.S. permanent
residents are not required to fill out 1-94 forms when they enter the United States). NIIS may
not have departure data, for aliens if they fail to turn in the top portion of their 1-94 when they
depart.

"Top" should read "bottom." Aliens turn in the bottom portion of their 1-94.

• INS data show that INS inspectors admitted at least four people after their visas were revoked
even though they had received notification from State and had posted lookouts in the INS
watch list. Three of them have since departed but one may still remain. INS officials said that
inspectors did not detect these people at the border because (Need INS info).

I |said she would need to know the specifics of each case before she could comment on
how or why these individuals were admitted to the United States. She and Mr. Goyer said that they
did not know how an INS inspector could let someone in the country if the appropriate lookouts
were lookouts posted in IBIS. (Note: I reviewed each of the four cases after the meeting, and
found that only one had appropriate lookouts posted. The other three lookouts had not been
posted properly for various reasons, as explained in the new report draft.)

State would also have to provide notice of the revocation, along with supporting evidence, to the
INS so that the appropriate agencies can deal with it. The information sharing would allow INS to
notify its inspectors at ports of entry so that they could prevent the individuals from entering the
United States. It would also allow INS to determine whether the person had already entered the
country, and, if so, to locate, investigate, and, if warranted, remove them from the country. In
some of the revocation cases, the U.S. government would be better off just monitoring the
individuals and ensuring that they leave the country. At that point, they would not hold a valid visa
and could not enter the country again. If INS were to try to remove the person, the removal
proceedings could extend their stay in the country for a long time.

Page 3 Record of Interview

Prepared by: J McCloskey Index: INS 2.15
Date Prepared: 5/23/03 DOC Number: 888595
Job Code: 320172

The INS could, however, begin removal proceedings against an alien based on the evidence
relating to the reason for the revocation. Officials in the National Security Division oflNS's
Office of General Counsel told us that the INS did not typically begin such proceedings against
aliens who entered the United States before their visas were revoked because, practically
speaking, there was little the INS could do if the aliens were in compliance with the terms of
their admission. They said that removing aliens on terrorist-related grounds could be
challenging since aliens involved in removal proceedings are afforded a level of due process,
including proceedings before an immigration judge that aliens applying for visas overseas do
not receive. According to INS officials, during such proceedings the United States may have to
divulge the classified or law-enforcement sensitive information on which the initial visa
revocation was based and that may jeopardize ongoing investigations or reveal law
enforcement or intelligence agencies' sources and methods.

The officials said that this paragraph misrepresents their position on removal proceedings. They /
said that attempting to remove these aliens on the underlying reason for the revocation—that is, j
the terrorism charge—may not be possible for various reasons. First, the State Department
provides very little information or evidence relating to the terrorist activities when it sends the
A
revocation notice to INS. Without sufficient evidence linking the alien to any terrorist related jf\',
/ Y//
activities the INS cannot institute removal proceedings based on that charge. They reiterated that y I
State needs to share information with INS so that it could determine whether it can or should
initiate a removal proceeding on terrorism grounds.

Second, the officials told us that even if there is evidence, sometimes the agency that is the source
of the information will not authorize the information's release because it could jeopardize ongoing
investigations or reveal sources and methods. Third, sometimes the evidence that is used to
support a discretionary revocation from the Secretary of State is not sufficient to support a charge
of removing an alien in immigration proceedings before an immigration judge. As the officials
explained, when the person is applying for a visa, the burden is on the alien to prove that he or she
is eligible for a visa. Once that person has entered the United States, the burden of proof shifts so
that the government must go through due process and have sufficient evidence to remove him or j
her. <

page 4 Record of Interview

9/11 Law Enforcement Privacy

Exit Conference
GAO Review Visas Revoked Based on Terrorism Concerns (320172)
Thursday, May 22, 2003 • 10:00 am • Rm. 3241 CAB

Name Org. Tel. Number FAX Number E-Mail Address

OIA
, LJtL. 1UIC111C11

OIA

:athy Muhletaler ICE/BCIS

Legal

Jess Ford, Director GAO

International Affairs & Trade
Judy McCloskey, AIC GAO

Kate Brentzel, Analyst GAO

Mary Moutsos GAO/OGC 9/11 Personal Privacy

Tim Goyer CBP/

Lookout Unit
CBP/
Lookout Unit
James Hayes ICE/INV v

CBP/
Audit
Liaison
f-AO "