Sunday, April 21, 2013

“Building an Immigration System Worthy of American Values”

Closing Statement of Michael W. Cutler, Senior Special Agent, INS (Ret.) for Senate Judiciary Committee Hearing on March 20, 2013 on the topic:
Having listened to the testimony of all of the witnesses who testified at the hearing and the questions that they were asked along with the responses that they provided, I believe it is critical to provide my perspectives that I did not have the opportunity to provide at the hearing- I therefore thank Senator Coons for providing me with this opportunity.

In his opening remarks, Senator Coons, who acted as chairman of the hearing, noted how much money has been spent on DHS to enforce the immigration laws and that there are high numbers of aliens currently being removed from the United States.  It is important to note that simply throwing lots of money a problem will not solve the problem.  It is estimated that well over one billion dollars has been spent on the implementation of US-VISIT a program that was essentially mandated by the 9/11 Commission to track the entry and departure of aliens in the United States and yet, nearly a decade later, this important system is still dysfunctional.  The goal of government should not be to spend as much money on an issue as possible but to spend money wisely.

As for the removal of aliens from the United States, I believe it is of critical importance to point out that there is a bit of semantics involved in deciphering the statistics.  There is a world of difference between an alien who voluntarily departs from the United States as compared with an alien who is formally ordered deported and is subsequently removed.  Prior to the current use of jargon, there was a clear distinction in the language that described these situations.  Today, any alien who leaves the United States, whether voluntarily or as the result of an order of deportation being imposed by an Immigration Judge are both considered to have been “removed.”

An alien who is formally deported and then unlawfully reenters the United States is, in that act of unlawful reentry committing a felony.  If the alien has no criminal convictions that violation of law carries a maximum of 2 years in prison while aliens who have serious criminal convictions may face up to 20 years in prison for that crime of unlawful reentry (as an aggravated felon). 

However, an alien who voluntarily departs from the United States would face no criminal charges for unlawful reentry.  The artful use of language has muddied the waters in terms of assessing the circumstances under which aliens who violate the provisions of the Immigration and Nationality Act ultimately leave the United States.

It was evident from some of the testimony and ensuing questions, that there are serious concerns about instances where aliens who had been taken into custody for violations of the provisions of the Immigration and Nationality Act and through a lack of proper representation were remanded into custody and in some instances, deported to their home countries where they faced life threatening situations.  The impression conveyed by some of the testimony was that there are instances where such aliens might have properly applied for and received political asylum.

As someone whose family suffered greatly because of anti-semitism during the Holocaust at the hands of the Nazi regime during the Second World War, I was, in fact, named for my mother's mother (my grandmother) who was killed during the Holocaust in Poland, I am certainly very concerned about the issue of people facing life threatening situations because of similar situations today.  However, what was not discussed during the hearing is the process by which enforcement personnel of the INS, when I worked for that agency and now ICE and CBP question aliens who are taken into custody to make certain that reasonable efforts are made to rule out the removal or deportation of aliens who would face such situations were they to be returned to their native countries.

In point of fact, when I was an INS special agent I was required to not simply look to arrest aliens suspected of being illegally present in the United States or subject to deportation from the United States, but to ask appropriate questions to determine whether the aliens we arrested were eligible for relief from deportation.  What must be understood is that enforcement personnel are law enforcement officers who are charged with enforcing the laws, in their entirety, as they exist.  It would be as appropriate to release an alien from custody who is eligible for relief from deportation as it would be to  detain an alien who had no such eligibility. 

While a couple of the witnesses testified about a few cases where they believed that justice was not served, I believe that these examples are not representative of how decisions are generally made.  While it is unfortunate when such situations arise, law and policy should never be made on the basis of non-representative exceptional cases.  Measures should certainly be taken to try to eliminate such cases but most likely the best way of achieving this goal should be focused on the way that enforcement personnel are trained and instructed as to how to best carry out their official duties especially when interviewing aliens that they arrest.

It should be noted that there have been significant instances where terrorists and criminals have managed to defraud the immigration benefits program, in general, and the process by which political asylum applications are adjudicated in particular as an embedding tactic.

I will provide a few examples where this did, in fact, occur.  These examples can be found in Table 4 that was provided in a USDOJ-OIG Report that was entitled:
The Immigration and Naturalization Service's Removal of Aliens Issued Final Orders
Report Number I-2003-004
February 2003
Table 4
Terrorists Who Applied for Asylum
Ahmad Ajjaj and Ramzi Yousef - These individuals entered the United States seeking asylum in 1991 and 1992, respectively. In 1993, they helped commit the first World Trade Center bombing which killed six people. Ajjaj left the country and returned in 1992 with a fraudulent passport. He was convicted of passport fraud and did not complete the asylum process prior to his conviction. Yousef completed the required INS paperwork and was given a date and time for his asylum hearing; however, his application was pending when the World Trade Center was bombed.
Sheik Umar Abd ar-Rahman - Abd ar-Rahman sought asylum to avoid being deported to Egypt. He helped plan a "day of terror" for June 1993 in which New York City landmarks such as the United Nations' building, the FBI's Headquarters in lower Manhattan, and the Lincoln and Holland Tunnels were to be bombed.
Hesham Mohamed Hadayet - Hadayet applied for asylum in 1992, telling the INS that Egyptian authorities falsely accused and arrested him for being a member of the Islamic Group Gama'a al-Islamiyya, which is on the U.S. Department of State's Foreign Terrorist Organizations list. The INS denied his asylum request and Hadayet was placed in removal proceedings. After Hadayet did not receive the notice of his immigration hearing date due to an incorrect mailing address, the EOIR terminated the proceeding. On July 4, 2002, Hadayet shot and killed two people at the Los Angeles airport before he was killed by an El Al Airlines security guard.
Mir Aimal Kansi - Kansi entered the United States in 1991 and applied for political asylum in 1992. The INS Asylum office did not interview him or schedule an immigration court date since his application was in the pending backlog. On January 25, 1993, Kansi murdered two and wounded two CIA employees.
Gazi Ibrahim Abu Mezer - The INS voluntary returned Mezer to Canada after he was apprehended twice in June 1996. After Mezer's third apprehension in January 1997, the INS began formal removal proceedings because Canada refused to accept him a third time. In April 1997, Mezer filed for asylum, in which he claimed that he suffered a fear of persecution if he returned to Israel. In June 1997, Mezer withdrew his application and told his attorney that he had returned to Canada. Subsequently, Mezer was convicted and sentenced to life in prison for planning to bomb the New York City subway system.
 This is the link to that USDOJ/OIG report:

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