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WITHDRAWAL NOTICE

Series: Team 5 Files

Folder: Baxter, Laura

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Description: Notes on Laura Baxter interview

Reason for withdrawal: Classification review pending

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U.S. Department of Juttee


Office of Legislative Aflfeirs

Offlc*rf the AatouM Attorney OoienJ WaiMngton. D.C, 20530

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Prepared By: Laura Baxter, HQCOU


Reviewed By: Bo Cooper, General Counsel
Reviewed By: Lani Miller, DOJ, OLA
Approved By: Mike Becraft, HQCOM
February 16,2001

THE USE OF CLASSIFIED EVIDENCE IN IMMIGRATION PROCEEDINGS:


BACKGROUND INFORMATION AND LEGISLATION1

ISSUE

In the last two years, both die legislative and executive branches of the federal
government have focused on the laws permitting the United States to introduce classified
information in immigration proceedings without providing that classified information to
the alien in proceedings. During the 106* Congress, two bills were introduced on the
issue: H.R, 2121 would have eliminated the use of classified evidence in immigration
proceedings altogether and S. 3139 would have applied the Classified Information
Procedures Act (CIPA) to immigration cases.

SUMMARY

In 1998, the Attorney General directed components of the Department with


expertise in immigration issues, national security issues, or both, to conduct a review of
die past use of classified information in immigration proceedings. In 2000, this case-
specific review was followed by a more comprehensive review of the regulations and
procedures in place for determining whether to approve or deny the use of classified
evidence in immigration proceedings and establishing new Guidelines and regulations for
future cases. This process was designed in part to address some of the concerns
expressed by proponents of H.R. 2121 and S. 3139.2 The Guidelines and revised
regulations are not in effect; we believe they require further discussion before they are
implemented.

The components involved in those reviews have concluded that there will
continue to be a limited but important number of immigration cases in which classified
evidence should be presented in camera to the immigration judge or other adjudicator,
cases where important governmental interests such as national security warrant such use.
Those components have also agreed that the application of CIPA to immigration cases

1 The following Department of Justice (Department) components reviewed and approved this Immigration
and Naturalization Service (INS) document: the Federal Bureau of Investigation (FBI); the Office of
Intelligence Policy and Review (OIPR); and the Civil Division, Office of Immigration Litigation (OIL).
1 The following components have, participated in the review of past cases involving tlwuse of classified
information in immigration proceedings: the Office of the Deputy Attorney General (ODAG), INS, FBI,
OIPR, and OIL, These components Also were involved in drafting die Guidelines and proposed rule, 35
were th« Criminal Division, Terrorism and Violent Crime Section (TVCS). the Civil Rights Division
(CRT), the Office of Legal Counsel (OLC) and the Executive Office for Immigration Review (EOIR).

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would be inappropriate and unworkable. Therefore, all components recommend that the
Department oppose the two legislative proposals from the 106* Congress.

BACKGROUND
These enumerated Departmental components unanimously believe the continuing
ability to use classified information in limited circumstances is a necessary part of this
Nation's effort to combat international terrorism. The reasons for this are set forth in the
extensive background information that follows.

Statistics

The INS deals with a significant number of aliens each year, both in adjudicating
applications for immigration benefits and in initiating and prosecuting removal
proceedings. Preliminary statistics for Fiscal Year 2000 show that the INS; inspected
over 534 million aliens at me land, sea and air ports;3 apprehended over 1.6 million aliens
on the Southwest border; removed over 181,000 aliens from the United States; and had
pending more than 3 million applications for immigration benefits, not including more
man 800,000 pending petitions for naturalization. United States intelligence and law
enforcement agencies may - and often do - possess information relating to any of these
aliens. Therefore, the INS and other law enforcement and intelligence agencies face a
daunting task in ensuring that aliens who may pose a threat to the Nation are not allowed
to enter or remain in the United States.

Conventional Removal Proceedings and Applications for Benefits

In Fiscal Years 1999 and 2000, the INS initiated over 300,000 removal
proceedings.4 The INS's current enforcement priorities include the removal of criminal
aliens, human rights abusers, aliens who have engaged in terrorism or clandestine
intelligence activities, and aliens who otherwise pose a danger to the national security.

In the past five years, the INS has introduced classified information to oppose
aliens' applications for discretionary relief in approximately 30 cases. Nine of those
cases are currently pending; in only one of the nine cases is the individual (an
inadmissible alien) detained.5 In the past five years, the INS also has initiated and

3 The actual number may be as much as 25% fewer due lo the methodology of estimating inspections and
land pons-of-entry.
4 This includes approximately 125,000 cases thai were processed by means other than proceedings before
an immigration judge (e.g.. expedited removal, administrative removal of certain criminal aliens,
reinstatements of final orders, and visa waiver removals).
1 The MS referred iwo of the nine cases to the Attorney General in December 2000. The case involving
Anwar Haddam remains before the Attorney General for a decision on the merits of his asylum application.
In the other case, the issue before Attorney General Reno was the continued detention of Mazen Al Najjar.
Attorney General Reno declined to extend a stay of tbe decision mat ordered his release and, as a result, he
was released from INS custody on December 15,2000. The INS's appeals relating to the underlying

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completed two cases under section 235(c) of the Immigration and Nationality Act (INA or
Act), a special expedited removal proceeding for aliens suspected of posing a risk to
national security where the decision to deny the aliens' admission to the United States is
based on classified information.6 We believe that a briefing on the nine pending cases
would be helpful to illustrate to the Department the complexity of the issues involved in
these cases.

The Supreme Court has long held that an alien seeking initial admission to the
United States requests a privilege and has no constitutional rights regarding his
application for admission because the power to admit or exclude aliens is a sovereign
prerogative. See, e.g.. United States ex rel. Knauff v. Shaughnessv. 338 U.S. 537, 542
(1950). Once an alien gains lawful admission to the United States and begins to develop
the ties that go with permanent residence, however, his constitutional status changes
accordingly. Landon v. Plascencia. 459 U.S. 21, 32 (1982),

Accordingly, the substantive and procedural rights that an alien possesses in an


immigration proceeding vary significantly depending on the alien's immigration status,
the nature of die proceeding, and the specific immigration interest or benefit at issue. In
recognition of diis fact, the Act and regulations have long provided for a variety of
procedural schemes that apply in the different immigration contexts. The burden of proof
in a conventional removal proceeding depends on the type of charge. An applicant for
admission bears the burden of proving that he or she is "clearly and beyond a doubt
entitled to be admitted and is not inadmissible" to the United States or proving by clear
and convincing evidence that he or she is lawfully present in the U.S. pursuant to a prior
admission, SfiS section 240(c)(2) of the Act, 8 U.S.C. § 1229a(c)(2). If the alien has
already been admitted to the United States, however, the INS bears the burden of
establishing by clear and convincing evidence that the alien is deportable. Section
240(cX3) of the Act, 8 U.S.C. § 1229a(c)(3).

Since 1952, the Act has accorded an admitted alien a confrontation right in his
deportation proceeding, which requires that the alien must have a "reasonable
opportunity" to confront the evidence and witnesses against him. That right, however, is
purely statutory, has no constitutional basis, and inheres only in the deportation
proceeding itself. As set forth below, Congress reenacted that confrontation right in
1996, but expressly denied aliens access to the national security information hi the
admissions and relief contexts.

decisions in this cose remain pending before the Board of Immigration Appeals (BIA) and the Court of
Appeals for the Eleventh Circuit.
4 The INS has used classified information in such high profile cases as the deportation case of "the Blind.
Sheikh," Sheikh Omar Abdel Rahman fAJiv.Reno. 829 F-Supp. 1415 (S.D.N.Y. 1993), aff"d 22 F.3d 442
(2d Cir. 1994)), who is currently serving a cnminal sentence for seditious conspiracy fU.S. v. Rahman. 1S9
FJd 88 (2d Cir. 1999), cert, denied 528• U.S. 1094 (2000)), and against Hani El Sayegh, an alien who vvas
suspected of involvement in (he bombing of the Khobar Towers U.S. Air Force barracks in Saudi Arabia.
(The U.S. did not have admissible evidence that could be used to prosecute him in a U.S. court for the
attack.)

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Because of these distinctions, it is permissible to use classified information in


opposition to an alien's application for admission to the United States (as opposed to
removal after admission), or in connection with an alien's application for a discretionary
benefit or discretionary relief.7

The INS typically learns that there may be classified information relating to an
alien in one of two ways: from another agency or from the alien. In some cases, the INS
requests that other agencies search their records to determine whether those agencies have
any information relating to an alien. In these cases, the INS usually has some indication
that the alien may be involved in terrorist activity or human rights abuses. The INS may
also check with a third agency to determine whether an alien's claims to have had a
relationship with that agency (a claim usually made in the asylum context) are truthful. In
other cases, a third agency may contact the INS to report that it has information relating to
an alien. In most cases within these scenarios, much, if not all, of the information is
classified.

Statutory and Regulatory Authority

Some use of classified information by the INS has been expressly permitted by
regulation since 1917, and sanctioned by statute since 1952. Currently, there are three
provisions in the Act that allow the INS to use confidential or classified information in
immigration proceedings.8

First, under section 235(c) of the Act, 8 U.S.C. § 1225(c), if an immigration


officer or immigration judge "suspects mat an arriving alien may be inadmissible" on
security or related grounds under sections 212(a)(3XA) (other than clause (ii)), (B), or (C)
of the Act, 8 U.S.C. § 1182(a)(3)(A), (B), and (C),' the immigration judge or immigration
officer shall "order the alien removed," without further inquiry. Pursuant to regulation,
the case is referred to the appropriate INS regional director, who reviews the order,

7 Attempting to prove deportability againsl an alien admitted to the United States on the basis of classified
information in conventional removal proceedings would require the disclosure of that Information. As
discussed further below, Congress in 1996 authorized the use of undisclosed classified information in
unconventional removal proceedings before the Alien Terrorist Removal Court (ATRC) to prove
deportability of admitted aliens charged with terrorism offenses. We believe that the ATRC is
constitutional in light of the protections provided in Title V of the INA, ej^. in all but the most exceptional
circumstances, an unclassified summary is provided to the alien that an Article in judge has deemed
sufficient to enable die alien to prepare a defense.
' There are two other provisions in the Act that authorize the consideration of classified information.
Section 105 requires the INS Commissioner.to share and obtain intelligence information, and Section
219(a)(3)(B) of (he Act authorizes the Secretary of Stale to consider classified information in designating
"foreign terrorist organizations." '
' These are the national security and foreign policy grounds of inadmissibilily: (A) espionage, sabotage,
export of sensitive technology,- or an activity with a purpogfc of opposing or overthrowing the United Stales
government; (B) terrorist activity (including members and representatives' pf designated "foreign terrorist
organizations"); or (C) the alien's entry or proposed activities in the United States would have "potentially
serious foreign policy consequences."

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reviews any relevant "confidential information," and consults with "appropriate security
agencies of the United States Government" over whether the "disclosure of the
confidential information would be prejudicial to the public interest or security." Section
235(c)(2)(B)(i) of the Act, 8 U.S.C. § 1225(c)(2)(B)(I); 8 C.F.R. § 235.8. If the regional
director concludes that the alien is inadmissible on the specified security related grounds
based on confidential information that cannot be disclosed, the regional director may
issue the final order of removal, or order any other action the regional director deems
appropriate. Section 235(c) has been part of the immigration law since 1952, when
Congress codified previously existing INS regulations.

In 1996, Congress enacted two other statutory provisions that authorize the use of
classified information for removal purposes. One of these applies in the context of
conventional removal proceedings under section 240 of the Act, 8 U.S.C. § 1229a,
Section 304 of the Illegal Immigration Refbnn and Immigrant Responsibility Act of 1996;
Div. C, Public Law 104-208,110 Stat 3546 (SepL 30,1996), codified the previously
existing INS regulations relating to the use of classified information. Section
240(b)(4)(B) of the Act, 8 U.S.C. § 1229a(b)(4)(B), states:

[T]he alien shall have a reasonable opportunity to examine the evidence


against the alien, to present evidence on the alien's own behalf, and to
cross-examine witnesses presented by the Government but these rights
shall not entitle the alien to examine such national security information as
the Government may proffer in opposition to the alien's admission to the
United States or to an application by the alien for discretionary relief under
this chapter.

This provision codified long-standing case precedent authorizing the use of classified
information to oppose alien admissions to the United States and discretionary relief
applications generally. Thus, if an alien is seeking admission, the INS may introduce
classified information to oppose the alien's admission to the United States. Also, if the
INS seeks to remove an alien from the U.S. on a charge based on unclassified evidence,
such as overstaying a visa, but the alien applies for discretionary relief, the INS may
introduce classified information to oppose the application for relief. Examples of
discretionary applications for relief include asylum, cancellation of removal, suspension
of deportation, voluntary departure, bond, and adjustment of status.

The second provision, Title V of the Act (codified at 8 U.S.C. § 1531, et seq.) was
added to the Act by the Antitcrrorism and Effective Death Penalty Act of 1996 (AEDPA),
Public Law 104-132, Title IV, Subtitle A, 110 Stat. 1258 (April 24,1996). That
legislation provided for the removal of aliens believed to be deportable on terrorism
grounds on the basis of classified evidence in proceedings before the Alien Terrorist
Removal Court (ATRC), a special tribunal comprised of federal judges established by the
legislation. See sections 502 and 503 of the Act, 8 U.S.C. §§ 1532,1533. The Chief
Justice of the United States has designated the Chief Judge and four other judges to serve
on the ATRC. In proceedings before the ATRC, the Department of Justice may present
classified evidence in camera and exparte to prove that the alien is deportable under

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section 237(a)(4) of the Act, 8 U.S.C. § 1227(a)(4), in that the alien "has engaged, is
engaged, or at any time after admission engages in any terrorist activity." To initiate a
case under Title V, the Attorney General must certify that probable cause exists that the
alien's removal under Title II of the Act in conventional removal proceedings "would
pose a risk to the national security of the United States," Section 503(a)(l)(DKm) of the
Act, 8 U.S.C. § 1533(a)(l)(D)(iii)- The Department has not yet identified a case that
meets this criterion. For this and other reasons, no case has yet been initiated before the
ATRC.

Several regulations currently authorize the use of classified information in immigration


proceedings. The regulations mat implement the statutory provisions discussed
previously arc 8 C.FJL §§ 240.11(cX3)(iv), 240.33(cX4), 240.49(a), and 240.49(c)(4)(iv).
There are also several regulations mat permit the INS to base adjudications of affirmative
applications for discretionary relief upon confidential information that is not disclosed to
the alien. 8 CJF.R. §§ 103O(b)(16Xii), (iii), and (iv).

Judicial Review

United States federal courts have sustained the INS's use of classified information
in immigration proceedings for over 50 years. The first cases in which the Supreme
Court sanctioned the use of classified evidence in immigration proceedings were Knauff
v. Shaughnessy. 338 U.S. 537 (1950) and U.S. ex rel. Mezei v- Shaughnessy 345 U.S.
206 (1953). In those cases, the Supreme Court upheld an INS regulation that called for
the denial of' hearing in cases where classified evidence showed that an alien was
excludable.

Building on those decisions, the Court, in Jay v. Bovd. 351 U.S. 345, ruled that
the INS could use classified information to oppose discretionary applications for relief
from deportation. At issue was an alien's application for suspension of deportation. The
Court held that in view of the gratuitous nature of that relief, the use of classified
information was permissible in light of prior Court decisions. The Court in jgy. stated
that the "constitutionality of section 244 as herein interpreted gives us no constitutional
difficulty." 351 U.S. at 357 n.21. Thereafter, in Barbour v. INS. 491 F.2d 573, 578 (5th
Cir. 1974), the Court of Appeals for the Fifth Circuit held that, in light ofJav.
discretionary release on bond could be denied on the basis of classified information, the
disclosure of which would be prejudicial to the public interest, safety, or security, if the
use of such information is sanctioned by the regulations. The Fifth Circuit, like die
Supreme Court in Jay, rejected Barbour's constitutional objections based on its holding
that bond, like suspension of deportation, is discretionary relief.

Eleven years after Barbour, in Sucju v. INS. 755 F.2d 127 (8th Cir. 1985), the
Eighth Circuit rejected a due process argument raised by an alien who argued that it was
"fundamentally unfair to use [classified evidence against him] that he had no opportunity
to rebut" in denying his applications for adjustment of status, suspension, and •
withholding of deportation. The court, while holding that the argument had considerable
appeal as a matter of fairness and logic, found that authority foreclosed the argument.

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Specifically, the Eighth Circuit found that the Supreme Court had "expressly upheld,
against just such a constitutional challenge, a predecessor regulation" in Jay.

Reviewing courts have not upheld the INS's use of classified information in all
circumstances, however. Three years after its decision in KnaufFand five weeks prior to
its decision in Mezei. the Supreme Court held in Kwonp Hai Chew v. fojdjnp. 344 U.S.
590,600-601 (1953), (hat summary exclusion could not be used against a retumbg lawful
permanent resident who ventured abroad for five months with the merchant marine, By
contrast, Mezei had ventured abroad for nineteen months, and the Court deemed that
sufficient to "assimilate'' him to the procedural position of an initial entrant seeking
admission. MfiZfii, 345 U.S. at 214. In Plasencia. 459 U.S. 21, the Court recalled both
cases, expressly reaffirmed that returning resident aliens could be placed in exclusion
proceedings in some circumstances, and implicitly reaffirmed that summary exclusion
proceedings would be appropriate for some of them. Id. at 30-34. The Court held that a
returning resident could be properly placed in an exclusion hearing if she made other than
an "innocent, casual, and brief excursion abroad. 459 U.S. at 29 (citing Rosenberg v.
FleutL 374 U.S. 449 (1963)),

la Safeedie v. INS. 880 F.2d 506 (D.C. Cir. 1989), the D.C. Circuit subsequently rejected
our Landon- and Fleuti-bascd contention that anodier long term resident alien could be
subjected to summary exclusion based on bis terrorist activity abroad, irrespective of the
trip's duration. The court held mat the procedural line must be drawn solely by reference
to the duration of the alien's trip abroad rather than the nefariousncss of his purpose in
going. Id. at 524.

The courts have never made clear the constitutional dividing line for
distinguishing between those returning resident aliens who retain deportation procedural
rights and those who can be accorded the summary exclusion procedural minimum. In
1996, Congress decided to subject returning resident aliens to exclusion processing if
they have engaged in illegal activity abroad irrespective of the trip duration, in any event
if they have been abroad in excess of 180 days, or in five other circumstances, INA
section 101(aXl3)(CXii) and (iii).

Six years after Rafecdie. in American-Arab Anti-Discrimination Committee v.


Reno. 70 F.3d 1045 (9* Cir. 1995), the Ninth Circuit held that the undisclosed use of
classified information in a nondiscretionary relief adjudication (legalization/amnesty)
violated aliens' due process rights. The court further found that "[Tjhe Mathews
balancing test suggests mat use of undisclosed information in [adjustment of status]
adjudications should be presumptively unconstitutional." Sjss Mathews v. Eldridee. 424
U.S.319(1976).

More recent cases have also addressed the procedure. In Haddam v. Reno. 54 F.
Supp.2d 588 (E.D. Va. 1999), the District Court for the Eastern District of Virginia
commented in dicta that "[Tjhe use of secrel evidence against a party, evidence that is
given to, and relied on, by the !J and BIA but kept entirely concealed from the party and
the party's counsel, is an obnoxious practice, so unfair that in any ordinary litigation

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context, its unconstitutionality is manifest/' The court, however, acknowledged that


"whether thisvobnoxious practice, in the special circumstances of this case, violates
constitutional norms" was a "difficult question" that the court needed not reach. Instead,
it held that the constitutional questions were solely within the jurisdiction of the court of
appeals. On the important question of the INS District Director's denial of parole, based
only in part on a classified FBI memo, the court ruled that the District Director's decision
was "facially legitimate and bona fide," supported by facts in the record, and thus violated
no constitutional, statutory, or regulatory provisions.

In Kiareldeen v. Reno. 71 F. Supp. 2d 402 (D.N.J. 1999), the District Court for
the District of New Jersey held that the INS's use of secret evidence, both at the alien's
bond hearing and to oppose discretionary relief in his removal proceedings, violated his
right to due process. Utilizing the analysis set forth in Matnews. 424 U.S. 319, the Court
concluded that "the government's reliance on secret evidence violate[d] the due process
protections that the Constitution directs must be extended to all persons within the United
States, citizens and resident aliens alike." Kiareldeen. 71 F. Supp. 2d at 414. The court
concluded that "[t]he INS procedures patently failed the Mathews test of constitutional
sufficiency," finding this failure to be a sufficient basis to order the petitioner released
from custody. LL Significantly, however, the court chose to treat the petitioner's due
process claims as challenges to the validity of the statute and the regulation as applied to
his case, expressing "no comment on the overall validity" of section 240(bX4)(B) of the
Act, the provision on which the INS relied to oppose the alien's release on bond using
nondisclosed classified information, £d^at408. The district court's decision granting
EAJA fees is currently on appeal fj the Third Circuit. The Solicitor General approved
appeal of the court's holding that the INS's use of classified information was not
substantially justified.

Most recently, in Al-Najjar v. Ren9t 97 F.Supp.2d 1329 (S.D. Fla. 2000), the
District Court for the Southern District of Florida held that the INS's use of classified
evidence in bond proceedings, although authorized by the Act and the Barbour decision
discussed above, violated the alien's due process rights by depriving the alien of his rights
to: (1) notice of the evidence presented in opposition to his release from detention; (2) a
meaningful opportunity to confront and rebut that evidence; and (3) a fundamentally fair
hearing of his application for review of his custody status. Notably, the Court stated that
"the Government should not be entirely precluded from relying on classified information,
but must introduce it in a manner that affords [the alien] 'access to the decisive evidence
to the fullest extent possible, without jeopardizing legitimately raised national security
interests.'" 97 F.Supp.2d at 1358 (citations omitted). The Court cited to the statutory
schemes of CIPA and Title V of the INA as guidance that might assist an immigration
judge in conducting a hearing that properly balances the competing interests.10 The
parties' cross appeals from this decision are currently pending in the Eleventh Circuit

1 See fn. 2,

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National Security

Incidents such as the recent bombing of the U.S.S. Cole in Yemen; the December
1999 arrest of an alien with bomb-making materials at the United States-Canadian border;
the August 7,1998, bombings of the U.S. embassies in Nairobi, Kenya and Dar es
Salaam, Tanzania; and the 1993 World Trade Center bombing have shown that the
United States is a target for international terrorists.

Since the World Trade Center bombing, the INS has increased its presence on the
FBI's Joint Terrorism Task Forces (JTTFs) and has performed important duties in the
fight against international terrorism. The INS special agents on the JTTFs play pivotal
roles in: identifying targets who are aliens; determining the immigration status and
history of the alien targets and determining whether the targets hare any pending
applications for immigration benefits; evaluating whether the targets are subject to
criminal prosecution for immigration-related or other charges; and assessing whether die
target is subject to removal from the United States. The INS and the FBI have greatly
improved cooperative efforts through the JTTFs." Both agencies have endeavored to
prevent aliens who are members of terrorist organizations or who otherwise pose a threat
to national security from obtaining permanent immigration status (such as asylum or
lawful permanent resident status) or United States citizenship.'2

Other amendments to the immigration law have enhanced our national security
efforts. In recognition of the threat posed by terrorists and terrorist organizations,
Congress in the AEDPA added a new sectin to the Act, section 219,8 U.S.C. § 1189,
which authorizes the Secretary of State to designate "foreign terrorist organizations" The
Secretary has published three lists of designated "foreign terrorist organizations." See 65
FR 57641 (Sept. 25, 2000); 64 FR 55012 (Oct. 8,1999); 62 FR 52650 (Oct. 8,1997). To
designate an organization under this provision, the Secretary of State must find that the
foreign organization "engages in terrorist activity" that "threatens the security of United
States nationals or the national Security of the United States." If an organization is
designated as a "foreign terrorist organization," "representatives" and certain "members"
of the organization are inadmissible to the United States. Sections 212(a)(3)(B)(i)(IV)
and (V) of the Act, 8 U.S.C. § 1 l82(a)(3)(B)(i)(rV) and (V). Congress has specifically
authorized the Secretary to consider and rely on classified information in making these
designations. Section § 219(a)(3)(B) of the Act, 8 U.S.C. § 1189(a)(3)(B).

1 ' The INS currently has 40 special agents participating in 16 of the 26 designaied JTTF sites. The INS
received S7 million in the FY 2001 appropriation for additional JTTF and support positions.
12 An alien who is granted asylum may travel freely outside of the United States and may apply for lawful
permanent residence after one year. A lawful permanent resident generally may apply for citizenship after
five years. Certain statutes, e.g.. the Foreign Intelligence Surveillance Acl, 50 U.S.C §§ 1801 -1811.
designate lawful permanent residents, in addition to U.S. citizens, as "United States persons" for purposes
of FBI foreign counterintelligence and international terrorism investigations. This fact that oftentimes
affects the choices available to the FBI for investigating a given individual.

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Proposed Legislation

The 106th Congress considered legislation that would have effectively abolished
the authority of the INS to use classified information in camera and ex pane in
immigration proceedings. HJR. 2121, the "Secret Evidence Repeal Act," as introduced,
would have repealed the ability of the INS to use classified information in most
instances.13 H.R. 2121,106* Cong. § 1 (1999). During the second legislative session, the
House of Representatives held two hearings on this bill The FBI testified in opposition
to H.R. 2121 on Feb. 10, 2000, and the General Counsels of the FBI and the INS testified
in opposition to the bill on May 23,2000.

On September 26,2000, the House Committee on the Judiciary held a mark-up of


H.R. 2121 and reported out by voice vote an amendment in the nature of a substitute.
The amendment would have applied the requirements of the CIPA, 18 U.S.C. App. 3
(1982), to all immigration cases in which the INS sought to use classified information.
This would have precluded the use of classified information and would require a
judicially approved unclassified summary of the classified infonnatioa Only the
unclassified summary would be provided to the immigration adjudicator. The classified
information would not be used. If no summary could be provided, the classified
information could not be used in the case.

The House Committee report was critical of the INS's use of classified evidence.
H.R. REP. NO. 106-981 (2000). In September 2000, a bill similar to HJL 2121, as
amended, was introduced in the Senate as S. 3139. Ne-tber the Senate nor the House took
any further action on H.R. 2121 as amended or on S. 3139.

Although the amended version of H.R. 2121 that was reported out of Committee
was ostensibly a compromise, our review of the bill revealed that the bill appeared to:
(1) ban the use of classified evidence altogether in certain types of immigration
proceedings; (2) eliminate a type of immigration hearing that was intended to expel
terrorists from the United States and has been so used in the past; (3) create a new
discovery tool for illegal or unadmitted aliens in hundreds of thousands of immigration
cases, not merely the handful that involve classified evidence; and (4) import procedural
requirements designed for criminal cases into the much different setting of immigration
proceedings, where they would have effectively restricted the government's discretion to
withhold immigration benefits from dangerous aliens who did not deserve them.

The CIPA is part of the criminal code and operates in the context of criminal
procedural rules that require the government to disclose to criminal defendants various
types of material that could potentially aid the defense. The CIPA allows the substitution
of an unclassified summary for classified information that would otherwise be subject to

'•' H.R. 2121 would have repealed the use of classified information in all but one context: the use of 235(c)
removal proceedings against an alien who is not a lawful permanent resident, a parolee, or who does not
seek asylum. This limited exception would have been rendered useless because the alien could have
vitiated the INS's ability to use classified information by applying for asylum.

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disclosure - but only where the summary "will provide the defendant with substantially
the same ability to make his defense 35 would disclosure of the specific classified
information." IS U.S.C. App. 3 § 6(c)(l)(B). This standard can, and does, lead to the
abandonment of criminal prosecutions in the interest of preserving national security
information. While the balance struck by Congress may make sense in the criminal
context, it does not make sense in the very different context of civil immigration
proceedings, particularly given existing limitations on the use of classified evidence in
that setting (e.g., the government's inability to use classified evidence to prove
deportability except in a special anti-terrorism court that has never been invoked; and the
Department's own internal procedures governing the use of classified information).

Review and Procedures under Previous Administration

As stated previously, the Departmental components with primary responsibility


for immigration and national security matters believe that there are a limited but
important number of immigration cases in which classified evidence should be presented
in camera before the immigration judge or other adjudicator for the purpose of
determining whether an alien should be admitted to the United States, granted relief from
removal, or released from detendon. This is especially true in light of the particular needs
of the national security community. Those needs sometimes can be better served via the
immigration process, rather than by other means.

Because of the concerns about the INS's use of classified information in


immigration proceedings, however, in 1998 Attorney General Itaio commissioned a
review of all existing immigration cases in which classified evidence was being used.
The review, which covered all of the approximately 25 cases then pending, was
conducted with the help of lawyers from various components; INS, FBI, OIL, OEPR, and
ODAG. The reviewers determined that the use of classified information was appropriate
in most of the cases reviewed. In certain cases, however, a determination was made that
some of the evidence should be declassified and provided to the aliens.

A second, expanded phase of the review led to the development of a new, interim
process for approving any proposed use of classified evidence in immigration cases.
Under that process, when the INS proposes to use classified information in a specific
case, it must work with the originating agency to draft a comprehensive classified
document and an unclassified summary of the classified information. The INS has
established a National Security Law Division in the Office of the General Counsel and a
National Security Unit in the Office of Field Operations to ensure that all national
security cases arc legally sufficient and are handled in a consistent manner. The INS
carefully scrutinizes any classified information that it proposes to use and meets with
representatives of the originating agency to examine pertinent background information. If
the INS believes the information is relevant and its use is necessary in a case, the
classified information and unclassified summary (if any), as well as any background
information, is referred to the Department of Justice for intra-Depanmental review and
discussion with other components. In order for the classified information to be used, the
reviewers must determine that the information is properly classified and that either the

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alien poses a risk to the national security, or that the classified information is otherwise
material to issues in the case. The Attorney General or the Deputy Attorney General must
also thereafter approve the use of the evidence before it is introduced into immigration
proceedings.

In September 2000, Attorney General Reno ordered that Guidelines be drafted to


govern the approval and use of classified information in immigration proceedings. She
specified that such Guidelines should require an interagency review process with personal
Attorney General or Deputy Attorney General approval before classified information was
used in immigration proceedings. She also ordered a review and revision of existing
regulations governing INS's and EOlR's use of classified information. Because the
White House did not approve publication of the Guidelines or regulations prior to the end
of the Clinton Administration, Attorney General Reno did not sign the Guidelines, and
therefore, they have not been implemented.

The Guidelines (attached, along with corresponding draft regulations),14 if


implemented, would have imposed new restrictions on the INS in using classified
information in immigration proceedings. The current law and regulations limit the use of
classified information in conventional removal cases to situations where the INS is
opposing an alien's application for admission to the United States or for a discretionary
application for relief. There are no restrictions, however, on the substance of the
classified information. The Guidelines would have limited the use of classified
information to four types of cases, specifically, those cases wherein the classified
information shows:
(1) there are reasonable grounds to believe that the alien's continued presence or
activities in the United States constitute a threat to the national security or the public
safety;
(2) the alien has engaged in terrorist activity, serious human rights abuses, or clandestine
intelligence activities on behalf of a foreign power,
(3) the alien is an arriving alien who is subject to removal under section 235(c) of the
Act; or
(4) the alien has made false or misleading claims with respect to an alleged intelligence
affiliation with a department, agency, or component of the United States government.

" The relevant Department components recommend scheduling 3 meeting to further discuss the Guidelines
and proposed rule. It should be noted that, during the drafting process, various Department components
expressed concerns about certain provisions of the Guidelines. For example, ihe Act and regulations
contain statutory bars for relief. The Guidelines may preclude the use of classified information that would
be relevant to the bars. Also, the review process may be duplicative and would require personal Attorney
General or Deputy Attorney General approval in an individual case. For these and other reasons, the
relevant Department components believe that the Guidelines require further examination and policy
judgments before implementation.

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The Guidelines also would have provided that classified information could only
be used if all five of the following conditions were met:
(1) the classified information is reliable and accurate;
(2) the Department has received authoritative assurances from the classifying agency that
the information is properly classified under the pertinent Executive Orders);
(3) there are-reasonable grounds to believe that, absent the submission of the classified
information, an alien in one of four listed classes would likely be admitted to the
United States, receive or retain an immigration benefit, or be permitted to remain in
the United States;
(4) an unclassified summary of the classified information will be provided to the alien if
possible, and the summary will be as detailed as possible; and
(5) the proposed use of the information is authorized or permitted by law.
The Guidelines would govern conventional removal proceedings and proceedings
before the ATRC. There would be a two-step intra-Departmental review before classified
information could be submitted in either type of removal proceeding. That process would
have worked as follows:

After the INS decided that classified information was reliable and material to a
pending or ongoing case, it would convene a "Review Team." This Review Team of
attorneys from designated components would scrutinize all relevant documents
underlying the proposed classified submission and interview potential witnesses. The
Review Team generally would consist of two INS attorneys and one attorney each from
the FBI Office of the General Counsel in an FBI case, the Criminal Division (either
TVCS or the Internal Security Section, depending on the subject), OIL, and OIPR. If the
Review Team were satisfied that die evidence was reliable and accurate, and met the
other standards set forth in the Guidelines, the evidence would be forwarded to a "Review
Committee," chaired by the DAG and comprised of senior officials from a broader range
of components, which would again assess whether the evidence met the standards set
forth in the Guidelines. The Review Committee would consist of senior representatives
from the above-mentioned components, as well as from the CRT, and such additional or
alternative representatives as the DAG may provide. If the agency with classification
authority over the classified information was not a component of the Department, the
DAG would have the option of inviting a representative of that agency to participate in
meetings of the Review Committee. The representative of each component would be an
officer empowered to speak and act on behalf of that component.li

If the Review Committee approved the proposed submission of the classified


information, the information would be forwarded for final approval or disapproval by the
DAG or the Attorney General. The Guidelines specified that if the classified evidence
was provided by the FBI, the evidence would require a written certification from the FBI

" The Guidelines provided that the review process could be circumscribed in specified emergent
circumstances or with the approval of the Deputy Attorney General or the Attorney General.

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Director that, among other things, the evidence was properly classified and that, pursuant
to the FBI's own review of all underlying materials and information relevant to the
classified information proposed for submission, including source and asset file materials,
the classified information was true and reliable to the best of the Director's knowledge.16

TALKING POINTS

• Department components with expertise in immigration issues, national security


issues, or both, unanimously believe that there will continue to be a limited but
important number of immigration cases in which classified evidence should be
presented in camera to the immigration judge or other adjudicator cases where
important governmental interests such as national security warrant such use.

• These components believe that the use of classified information in immigration


proceedings to prevent aliens who engage in or support terrorist activity or pose a
threat to our national security from entering or remaining in the United States is an
important tool in responding to international terrorism and hostile foreign intelligence
threats and thus in protecting the security of the United Slates.

• FBI General Counsel testified before the House Judiciary Committee: "In recent
years we have found that direct and continuous liaison with INS, and the ability to use
classified information in appropriate cases, are essential to the effort to protect the
national security by making proper decisions about aliens with ties to terrorism and
,>ther activities that threaten our national security."

• The Department should not support either of the legislative proposals presented
during the last Congress, both of which would have effectively eliminated all or
virtually all uses of classified information in immigration proceedings.

• The Department does not believe that the standards set forth in CIPA can readily be
applied in the immigration context, for which they were not designed. The balance
Congress struck in CIPA makes sense in the criminal context because of a criminal
defendant's Sixth Amendment right of confrontation: if the government cannot
provide a sufficient unclassified summary of the classified evidence, it may either
have to forego the use of that evidence to obtain a criminal penalty or even forego the
criminal prosecution altogether. In the immigration context, however, the
consequence of applying CIPA standards creates a much more troubling "balance."
While the Department, wherever possible, gives an alien a meaningful unclassified
summary of any classified evidence used against him, it is sometimes not possible to
give a detailed account of the evidence without jeopardizing highly sensitive human
or technological sources. Where the summary cannot safely be given in sufficient
detail to satisfy the CIPA standard, the consequence will be that the government may

" The FBI believes (hat the certification should be signed by un official not lower than Deputy Assistant
Director, rather lhan by the Director.

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have to grant immigration benefits that could lead to conferring citizenship on an


illegal alien who poses a danger to the national security and who has no right to stay
in this country.

15

DAG211-0056
QUESTIONS FOR LAURA BAXTER
INS GENERAL COUNSEL OFFICE
February 26,2004

Background.
• College and law school.
. INS j N; •*'£
• House
• DOJ DAG
• Where job intersected counterterrorism.

PRE SEPTEMBER 11 (MOSTLY)

Access to intel. What access and from whom?


Knowledge of al Qaida. What was your knowledge of their activity? Of the threat posed?

Relationship with DOJ:


• Who did you work with? DAG's office? TVCS' Jim Reynolds and Ronnie Edelman?
• What was your view of the ENS role in CT?
• What was your understanding of the DOJ view of the role of the INS in CT?
• What were the successes of the relationship b/w DOJ and INS? The failures?

Relationship with the White House:


• Who work with?
• What issues?
• What involvement with the CSGs?
• Were you aware of intel chatter regarding a potential terrorist incident in the summer of 2001?
• Were you ever informed of principal meetings regarding Ressam and the northern border?
• Were you ever involved in the drafting of PDDS? How did you receive PDDs? (9, 39, 62)
• Were you aware of PDD-39 requiring INS to exclude terrorists? What was your response to that
requirement? What about PDD-62?

Policy and law intertwined.


• Expedited exclusion. Policy Council meeting minutes from 1997 talk about expanding
expedited exclusion. My understanding is that expedited exclusion still only applies to
aliens seeking entry at POEs, and not EWIs. There were policy council meetings in the
spring of 1997 discussing expanding the program to those in the US less than two years
after entering illegally. The minutes discuss the success of the program to date, but then
decide against expansion, without stating a reason.
o (1) do you know why it was not expanded?
o (2) do I have it right that expedited removal still only applies at POEs?
o (3) please explain the exact legal difference in standards that permits a consular
officer to deny a visa versus the "higher" standard that accrues to the
immigration inspector to deny entry to an alien? (Made a diff, for example, in
entries in TIPOFF, where lack of adequate intel or identifiers from INS
perspective would deny that record's entry in TIPOFF.)
• Visa waiver. Tension b/w INS/DOJ and DOS on this issue. DOJ responsible for
verifying that DOS candidates for visa waiver were fully vetted. Obviously, state
sponsors did not make it on the list of candidates. However, in the elements vetted
(overstay rate, fraud rate, intending immigrant, economic stability) where did national
security implications fall in the priority list of determining factors? What is the equitable
solution to visa waiver, considering the limitation on DOS consular affairs?
• Permitted length of stay for tourist visas. During your time at INS, was the reg
permitting (mandating) a six month length of stay for tourist visas ever discussed?
• Use of state and local law enforcement in enforcing immigration law.
Entry-exit. What was your involvement?
o Bob Bach's role in entry-exit?
o Please describe, as best you can recall, what happened with the implementation
of that mandate. What was the role of special interests?
o What were the legal issues?
o Was the automated 1-94 a viable alternative?
o Did you ever meet with special interests?
o Do you know if anyone else at INS did?
Student tracking. Were you involved with either the fee regulation legislation to change
the recipient of the student tracking fee from the school to the government?
o What was the reason for the seeking of the change; who was behind it?
o Was there a general underlying understanding that engaging on this track of
changing the funding mechanism may exquisitely delay the funding for the
overall program?
o What about the implementation date?
o Was it really necessary after a successful CIPRIS?
o Did you ever meet with special interests?
o Do you know if anyone else at INS did?
TIPOFF.
JTTFs. What legal issues existed, if any, other than information sharing, for INS to be
involved in JTTFs.
Naturalization reviews by the FBI and CIA.
o What legal issues accrued to the naturalization reviews required by FBI and CIA
under the G325 process? _
o Was it a legal requirement that a national security check by done on these C i/ ' \f<rr~ i
applications? (Yates v. Cadman) ^T " * "
ATRC. What is your analysis of why the ATRC was never used? Does it still hold /
value? What needs to be done to get it to be a viable antiterrorism tool? 3/0 / JJ**'
LESC and use of local/state law enforcement in enforcing immigration law. What is the
status of adding the absconders and NSEERS violators to NCIC? What is the position of
the department on the use of NCIC for INA violations? Should the LESC expand its
availability to LEAs and jails? Are there any stats on the value added? Can we see the *•*' .^
OLC memo? Did you have anything to do with writing that memo? Where does the ^79- ^ * ^ •
DOJ stand on having LEAs arrest for immigration violations? What is the status of ffl -j ***
Section 287(g) expanstion? /A
• FBI- is the FBI using its immigration power in CT? .y M fjtSt* ~/O
• Preclearance/preinspection. What is the difficulty in setting these up? Is it really £/'^ /
practical to consider setting these up all over the world?

Compliance versus law enforcement. How are the two defined? When does compliance, or
administrative matters, become a law enforcement matter, and how best to make sure the transfer is
seamless, and what the legal considerations are.
Important in fraud cases in benefit adjudications, the function of determining student compliance
and school certifications, and use of state/local law enforcement in immigration enforcement.

Relations with the CT Coordinator, later the NSU:


• Special interest cases. Ever associates of UBL? How were special interest cases prioritized? Was
the critical element the threat posed to national security balanced against the evidence in the case?
Sami al Arian.

[Immigration law and regs involved with that involved national security which you had a hand in?
Antiterrorism and Effective Death Penalty Act.
IIRIRA
Data Management Act
Visa Waiver program.
Enhanced Security Improvement Act] (may delete)

Relations with Congress.


• Their priorities
• Who paid attention to
• Helpful/unhelpful.

Relationship with DOS:

Relationship with DOD:

9/11. Could the INS have helped prevented 9/11.


Where were you on 9/11? Did legal issues arise on that day ?

POST 9/11 activities


Have any terrorist affiliated persons been caught using these programs?
• Absconders
• NSEERS
• Voluntary interviews
• Material witness detainees
• FBI role in detaining immigration violators in the normal course of antiterrorism investigations.
Has an MOU been signed? What happens to the violator on the immigration charges, is the case
handed over to ICE? What is ICE doing with these violators? How long can they be held?

DHS organization on border security.

What are the legal challenges in the current organization of immigration at DHS?

What is DOJ's current involvement in US VISIT? International cooperation on biometrics and machine
readable visa standards?

What is DOJ's current involvement in International cooperation on biometrics and machine readable visa
standards?
Commission Sensitive

MEMORANDUM FOR THE RECORD


PART III

Event: Interview of Laura Baxter


Department of Justice Deputy Attorney General's office, March 2001-current
INS National Security Law Division Chief, 2000-2001
House Judiciary Cmte, Immigration Subcmte Chairman Lamar Smith, 1999-2000
INS general counsel's office 1996-1998
Baltimore district office INS 1995-1996

Date: Thursday, February 26, 2004


Special Access Issues: [none]
Prepared by: Notes by Janice Kephart-Roberts on Thursday, February 26, 2004
MFR by Janice Kephart-Roberts on Firday, February 27, 2004
Team Number: 5 (Border Security)
Location: GSA office
Participants - Non-Commission: Laura Baxter
Faith Burton, Office of Congressional Affairs

Participants - Commission: Janice Kephart-Roberts, counsel


Susan Ginsburg, senior counsel

Note: no classification required


Documents provided for review, but not to copy:
(1) 10/1 enhanced immigration security measure white paper by Laura Baxter
and Stuart Levy;
(2) series of drafts and memos on the development of guidelines on the use of
classified evidence in immigration cases.
Documents requested, none

Recording: yes
NOTES:

Background.
• Went to school in her home state of Wisconsin at Madison. Graduated from law
school in 1991.
• In Ocotber 1991, joined the INS Baltimore District Office.
• In 1995, she transferred to the INS general counsel's office where worked on
enforcement issues: border patrol, crime, and terrorism.
• From 1996-1998 worked a number of mideast and irish terrorist cases.
• 1998-2000 worked for the House Immigration Subcommittee of the Judiciary
Committee for Lamar Smith.
• 2000
Refugee national security vetting. Justice Dept interest in the evolution of the
asylee/refugge process post 9/11. At one point in process security checks done? Spoke
to Yates today. IJs can grant asylum, but can't send someone in for a background check.
CIS can do that. In terms of refugees, did work with DOS. In last week before Sept
fiscal yr ending, and refugee numbers to be filled. Then mideast folks coming. And
looking at refugee status and streghtening security checks. If you know how Pres
establishes refugee status every year. INS and DOS wouldn't coordinate granting of
refugee status, and now DHS has it, and want DHS to choose the nationalities we want to
bring to the US. Refugee claims were that they were Muslim fundamentalists that
Saddam would prosecute. Questions about wh should bring them to the US and groups
like Hizbollah maybe had already recruited them. Garcia was concerned, and hav eto ask
ICE about them. Think Yates or Garcia would know. And so we vetted through CIA and
FBI. Based on that, State and DHS should id the potential refugees and intl/LE should
then weigh in on national security and human rights violators ground prior to wasting
time overseas prior to vetting. David Martin working on these issues now.

Recommendation: set priority in interagency annual basis for refugee nationality


interviews.

I do know that FBI is investigating some who used the refugee status, but don't know
when that info came to fore. Don't know what came from SAO process on this.

Expedited Removal. Still does only apply to POEs. But last year, in response to a boat
of Haitians in Florida and triggering of mass migration. They were put in removal thru
normal 240. But later expanded to boats arriving by sea as EWIs, but not applied to
Cubans. There was another proposal to expand expeditied removal to EWIs involved in
criminal activities and already convicted. INS decided not to go forward with it b/c the
numbers could be used admin removal for aliens not lawful permenatn resident that get
convicted of aggravated felonies where there is no hearing. Because of litigation risks of
opening up expedited removals to EWIs. Me in ODAG, and DOJ reg expert Kevin
Jones, and thye never got back to us.

Fear of litigation risks over expedited removal. 1996 changed law from EWIs to Persons
with out inspection, that entry doctrine was suppose dto goby wayside, but SCT opened it
up again in Zabidos case by delinating b/w the two types of entry. DHS is taking a look
at BTS. I didn't work on this at INS. Did have issues re credible fear context, is it
possible that all establish that? A lot of case precedent on, the more you establish ties to
US, the more due process rights you have. The question is how much jprocess these
aliens should get. We think PWIs will be litigated, and will support that position. Talk to
Stewart Verdery about it. We want less than 2 years on the expansion.
BP do expedited removal thru a voluntary return office and only do it with Mexicans.
Can't be prosecuted for reentry. Don't do voluntary returns with other nationalities.
IDENT created to help here. If assert credible fear, then can get mandatory detention.

Mezer case scenario hasn't changed at EWIs. Close hold operationally for DHS.

Legal difference b/w denying a visa std and POE admission denial. At officer at a POE,
aliens has the right to ask for a hrg and then have to justify denial of entry. 3 removals:
expedited removals by II, national security removal 235(c) and done by CBP officials and
240 removal is before the IJ. B/c consular officers are overseas and not subject to
challenge and inspector can seek review of it. And visa seems to have been a previous
vet as well. Not a due jprocess right, but a staturoy right Congress given to request a
hearing.

Visa waiver program. Weren't in DOJ when new countries added, so don't know... In
2001, when made permanent, in the statute that law enforcement and national security
taken into account. My involvement has been Argentina terminated based on econ
situation and there is a reqmt in statute and DHS do reviews of LE/ national security
concerns, and then consult DOS on wh to continue to program. Passed in June 01, and
INS didn't do anything until post 9/11. review process takes a long time. Early March
03 we terminated Belgium Portugal, Uruguay, Slovenia and Argentian. Remainder of
reviews of 21 countries due October 30, 2004, and now DHS scrambling it. In exchange
for permanency, the national security implications were to be taken into effect.

Permitted length of stay for tourist visas. No national security discussion about this pre
9/11. Being an INS attorney, occasionally we'd be lucky enough to get the visa
application. I recall the requests for two weeks, and would get 6 months. SO why do we
do this to ourselves? To help Yates. We also looked at in letter to Ridge, we also
looking at duration of status for students. The AZ memo guy admitted for duration of
status to determine wh could use an immigration violation, but initially no, b/c couldn't
determine real length of stay, and need another tech issue. We've tied our own hands on
a lot of these cases. Travel industry and education community misconstrue the facts and
tied our hands. DHS hasn't ...

Student Tracking. Never got involved in CIPRIS. Only in DAG's office involved in
SEVIS. Bill Griffith handled this. Schools were pushing out on SEVIS and
intergovernmental affairs where education lobbies complaining. We were shown a demo.
We did a few SEVIS regs. Proposed rule within last 2 months and fee to pay for SEVIS
compliance office with $100. OMB had cleared the lower fee and or hold the higher fee
and got OMB to sign off and almost going final.

Naturalization and G325. Citizenship USA issue was a fingerprint issue, not a G325
issue. INS wasn't waiting for fingerprints to come back from the FBI. G325 was making
a cost benefit analysis for LPRs and were going to skip the vetting process when didn't
get it in time. G325 process did generate some hits, and those hits would come back to
Cadman, and my attorneys would work with his people to see if evidence enough to
disqualify a person, and then there was a problem with identification. We sat down with
Yates, (a lot of these drug cases), we wanted him to wait. Don't think process changed
until after 9/11. Still a backlog on these things.

LESC. Status of adding NSEERS and absconders to the NCIC: decision was made to
create a new file in NCIC with "immigration violators": deported felons , NSEERS
violators and absconders. Maybe 140,000 total in these three categories. There are only
about 10,000 absconders now. Ask LESC for the numbers. DOJ says put them in the
immigration violators file whether or not a civil or criminal absconsion; says call the
LESC for the availability of a detainer; LESC confirms wh right person via fingerprints
and hold until we can pick them up.
Issue: can locals enforce immigration violations? Yes, says DOJ, but only persons in
NCIC. Numbers found through NCIC: don't know. As of Feb 2003, 1,141 absconders
found out of a potential 300K. Ziglar set those priorities. Now in ICE and the LESC is
the one doing the NCIC input. FTTTF trying to help locate the absconders.

Preclearance/preinspection. Came up post 9/11 in terms of add'l resources INS was


seeking. I was never in the substance of it. DOS controls the MOU process.
Canada Cross Border Crime program, doc signed b/w the AG and Canada and Ridge and
Canada and cooperation and arming of preclearance in Canada.

9/11. I was on leave in Wisconsin, I did ultimately reach Stuart who was with DAG and
Ziglar. Issues I discussed with him were (1) what could we do immediately. I said
Proclamations under section 212(g) in event had to suspend entry of certain people. At
same time Patriot Act negotiations going on, so didn't want to do both. In my opinion,
we waited too long to issue the 212. DOS didn't like the "nationality" language. These
were just discussion drafts.

Operationally they did everything they could think of to do. Shutting down the borders
or locking out whole nationalities are pretty extreme, and nothing we had thought all
about. ;.£> C;:

INS/FBI detention program. I worked that and Patriot Act. The detainees were already
in custody and decisions about detention policy already in place by the time I came back.
DOJ/TNS working group at SIOC and I would go to meetings to try to keep abreast.
When I couldn't go to meetings, and would ask for filling me in. A couple of cases were
^considered for ATRC and litigation risks. Patriot Ac^permits haebus review for certain
f

9/11 Law Enforcement Sensitive


9/11 Law Enforcement Sensitive

J(8) Maoussaui on this list too. All didn't have quite


enough info, and some were deported. Jim Reynolds was still in charge then and may
know. These were bond proceedings information presented by the FBI so could
continue investigation. Those not on list in NY were released without FBI knowing to
ask for a continuance for further investigation, so lost some people that way.

I thought the policy was sound under the circumstances, but the infrastructure wasn't in
place to handle this type of review. I supported the wait for CIA vetting as well. In the
week following 9/11 detained for questioned, and worked with crim div and didn't have
enough, and released, and then next CIA said he's watchlisted.

When the interview program came up. Purpose was to gather info and decided not to add
them into Penttbomb investigation. Quinn Vue was added to our group and took this
over. DAG didn't get a written report, but no written product, but I'm not aware of it.

We're working on a new structure with DHS and DOJ on how to handle detention of
aliens on another emergency situation. We've got a meeting next week on it. We need a
better process outside of emergency context, with lots of stakeholders, and need a process
to declassify information and prep immigration trial attorney and build on it for an
emergency. We don't have DHS views on this. Hopefully within next month or so we'll
have this process in place: Stewart Verdery and Dan Southerland. OLP, Civ, Crim
involved in this.

I understand that detention can last up to 48 hrs or a reasonable amount of time to arrest
and put in proceedings and notify whether will remain in custody, unless "exigent"
circumstances. Exigent not defined. We want ICE to do so. ICE says working on them,
supposedly. OLC says AG can go beyond the 90 hold time if national security reasons.
To me, holding for 7 days under Patriot Act heabus provisions, even under exigent
circumstances, is long. We were preparing to use in cases where FBI has surveillance of
person, or ATRC backup. Patriot Act certification case will be litigated and one reason
why it won't be used, and certification - who should make that determination?

FBI hasn't used Title 8 authority—don't do it until we're trained by INS. Done by AG
order. Certain DHS officials not happy with delegation and would only be used where a
public safety or national security issue, clear info where immigration violation, and when
INS agent not available. I wasn't involved in that delegation. They are reluctant to do
that. We want narrowly, and we want them trained. We don't think 6 weeks is
necessary. Have FBI treated the same as state/local and call the LESC.

Recommendations

Proving "engage in terrorist activity" is very difficult. Need a broader definition. Have
to have some evidence, but shouldn't have to prove material support. For ex: here,
legally, in contact with known operative and meeting with known operative, still not
material support and thus not deportable. Made it way through interagency legislative
process, but don't know whether introduced in legislation.

Absconders show that we need bond amounts that matter and a better process. Not
updated since 1997. Need enforcement of laws across the board.

Immigration benefits program has a ton of fraud. Can't do e-filings with digital signature
in labor dept. CIS does have digital signature in their e-files. EDVA has a good
immigration fraud section. We're trying to track fraud. People will try to use service
side to stay here.

ICE needs to make its case that has a role in CT and new structure and you'd think be
able to able to prevail on resources.

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