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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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