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Mr. Michael Dougherty
July 15, 2003
U.S. Department of Homeland Security
MICHAEL T. DOUGHERTY
DIRECTOR OF OPERATIONS
VISA REVOCATION/INFORMATION SHARING BETWEEN DHS AND DOS
SENATE SUBCOMMITTEE ON IMMIGRATION,
July 15, 2003
MR. CHAIRMAN AND MEMBERS OF THE SUBCOMMITTEE, thank you for the opportunity today to update you on the Bureau of Immigration and Customs Enforcement's (BICE) efforts to combat terrorism and to explain our role in the visa revocation process as well as our efforts to improve information sharing within the Department and with the Department of State on visa revocations and related national security information. No mission of the U.S. government is more important than protecting the Nation and the American people against future terrorist attacks. That mission is the paramount responsibility of the newly created Department of Homeland Security (DHS). The work of BICE is an indispensable part of fulfilling this mission.
Equally as important is knowing in real time when Department of State (DOS) or another government agency has developed information about or taken action, including a visa revocation, with respect to an individual who has entered but not departed. Since September 11, the law enforcement community has risen to the challenge of increasing communications and following through in national security information gathering, intelligence sharing, and investigations. I am pleased to be here today to discuss BICE's role in the investigations of all referred visa revocation matters.
Examples of our authority include investigating immigration violations, migrant and contraband smuggling, human trafficking, money laundering, trade fraud, export violations and document fraud. Controlling the flow of goods and people within our country, verifying the authenticity of identity and travel documents, and monitoring the legal transfer of funds are functions critical to reducing our vulnerability to terrorist attacks. Meeting BICE's critical responsibilities requires a robust intelligence capability, an air and marine interdiction capability, and an ability to apprehend, detain, prosecute, and remove illegal aliens. Finally, BICE is charged with protecting more than 8,000 Federal facilities nationwide against terrorism, a responsibility carried out by a component part of the Agency, the FPS.
The focus of this hearing is visa revocation and how notice of such revocations had been handled by the former INS. Today we are prepared to discuss how BICE, through the National Security Unit (NSU), is responsible for investigating all leads and referrals involving terrorism and national security matters, to include all cases where an issued visa has been subsequently revoked.
GENERAL ACCOUNTING REPORT
Currently, the Department of State has agreed to provide BICE notice of visa revocations. The GAO recommendation that is particularly relevant to BICE is the one regarding determining if any persons with revoked visas on terrorism grounds are in the United States and if so whether they pose a security threat. In making these determinations during an NSU investigation, BICE relies on BCBP information to ensure that it has all appropriate information regarding entries into the United States. DHS will work closely with the Department of State to implement new procedures that we expect will be agreed to between DHS and DOS on visa revocations. BICE will also continue to work internally within DHS to increase the timeliness of the information flow among our Bureaus.
The NSU receives a number of national security leads and referrals, including visa revocations, and does not discriminate between types of national security referrals. The NSU has a clearly defined role in respect to visa revocation: to investigate those cases involving aliens who may have had their visa revoked after admission or were admitted despite the revocation of their visa. The Department of State has agreed to notify BICE of visa revocations. Pursuant to NSU standard operating policy, visa revocation cases are investigated and coordinated in the same manner as all other types of cases handled by the unit including, but not limited to, the gathering and exploitation of intelligence information to generate leads; creating a target folder for referral to Special Agents in the field; full field investigation of all leads; determination on possible violations; and if applicable, arrest.
BICE's records indicate that during the time period studied in the report the NSU received information on ten leads involving visa revocations. In all 10 cases the NSU followed standard operating procedure for such referrals. The NSU conducted follow-up investigation in all 10 cases, concluding that there was insufficient evidence under current civil and criminal immigration law to allow BICE to take action against the visa holders. Despite these facts, GAO erroneously reported that BICE did not routinely investigate, locate or take any action on individuals with revoked visas. To the contrary, BICE always takes actions to investigate cases referred to the NSU and NSU conducted a full investigation of 100% of the referrals received.
As highlighted in Appendix II of the GAO draft report, the different standards of proof required for revocation and removal proceedings pose significant difficulties in resolving these matters. In this context, it is important to note that the information used to revoke a visa is not necessarily sufficient for BICE to initiate removal proceedings against an alien who has been admitted to the United States and is otherwise maintaining his or her status. When an alien is admitted to the United States, certain legal rights are attached to the admission. These legal rights require that BICE present clear and convincing evidence to demonstrate that the alien is a national security threat or is removable on other statutory grounds before an Immigration Judge.
Another factor in prosecuting these revocation cases is the current language used on the revocation certificate provides that if an alien is present in the United States, the visa revocation takes effect after the alien departs from the United States. Consequently, the visa remains valid and the alien maintains lawful status while in the United States absent any conduct making him or her subject to removal on other grounds. However, as previously stated, DHS and DOS are reviewing this language to determine what steps can be taken to improve our ability to remove an alien who has been admitted. Additionally, DHS and DOS have agreed to develop standard operating procedures to stop an alien of potential security concern at a port of entry and request of DOS that the alien's visa be revoked effective immediately.