Hearing of the Immigration and Border Security Subcommittee of the Senate Judiciary Committee

HEADLINE: HEARING OF THE IMMIGRATION AND BORDER SECURITY SUBCOMMITTEE OF THE SENATE JUDICIARY COMMITTEE
 
SUBJECT: VISA ISSUANCE, INFORMATION SHARING AND ENFORCEMENT IN A POST- 911 ENVIRONMENT: ARE WE READY YET?
 
CHAIRED BY: SENATOR SAXBY CHAMBLISS (R-GA)

WITNESSES: PANEL ONE: JESS T. FORD, DIRECTOR, INTERNATIONAL AFFAIRS DIVISION, GENERAL ACCOUNTING OFFICE;
 
PANEL TWO: JANICE L. JACOBS, DEPUTY ASSISTANT SECRETARY, VISA SERVICES, DEPARTMENT OF STATE;
 
MICHAEL T. DOUGHERTY, DIRECTOR OF OPERATIONS, BUREAU OF IMMIGRATION AND CUSTOMS ENFORCEMENT, DEPARTMENT OF HOMELAND SECURITY;
 
JAYSON P. AHERN, ASSISTANT COMMISSIONER, BUREAU OF CUSTOMS AND BORDER PROTECTION, DEPARTMENT OF HOMELAND SECURITY

BODY:
SEN. RICHARD J. DURBIN (D-IL): Thank you very much, Mr. Chairman, and I'd like to ask that my statement by Senator Leahy be made part of the record.

SEN. CHAMBLISS: Without objection.

SEN. DURBIN: And I'd like to thank you, Mr. Chairman, for announcing at the outset that this is going to be a much more liberal subcommittee from this point forward.

(Laughter.)

SEN. CHAMBLISS: I've heard two judges, for two days now.

SEN. DURBIN: I also think that most members of Congress, certainly this Senator, should be given some opportunity to have several of my staffers on the Department of Homeland Security payroll, since 85 percent of my casework in Chicago is about immigration, visas. We just spend more time on that than anything else, and I don't profess expertise on it, but a lot of frustration which is mirrored by my staff.

Let me ask you, Mr. Ford, if I can, I want to put this in context. At one point here in the GAO report you say 500 million people enter the United States legally each year, 300 million are non- citizens. I assume that it means that those coming in from Canada and such obviously don't need visas. How many people come into the United States each year legally by visa?

MR. FORD: I believe in our October report the -- I believe it was 10 million cases of non-immigrant visas that -- people had come in on non-immigrant visas.

SEN. DURBIN: Temporary visa situation?

MR. FORD: Correct.

SEN. DURBIN: Right. And how many are denied -- visa applications are denied each year?

MR. FORD: I don't have that information across the board, I can probably get it for you. It -- I do know it varies by country, the denial rate.

SEN. DURBIN: Incidentally for my colleagues, if you get a chance go to Mexico City and see how they handle it, they do a great job at our consulate there. I really want to salute them for what I think is a very humane and professional way that they handle visas for the people that go through that process. Let me ask you this: we asked four or five years ago for the INS and the Department of Justice to come up with some sort of software or program that would keep track of people who've left the country, who were here on a legal visa and left, so we would have some sort of inventory at any given time about how many people were still here and their visas, as far as we knew it, had expired. Has that ever been done?

MR. FORD: I am not aware whether that's been done or not, again I -- that's something I can check on and get back to you on, but I don't know the status of that.

SEN. DURBIN: I think the answer is it has not been done. I think it's been four years since we asked for it. To give you an idea even before 9/11, this was something that seemed so obvious so we would have some net inventory of expired visas in the United States. And so, as I understand what you have in your report here, in a span of 16 months, September 11th 2001 to December 31st 2002, there were 240 visas revoked, albeit for terrorism related purposes, is that correct?

MR. FORD: That's correct.

SEN. DURBIN: Which is about 15 a month, roughly?

MR. FORD: Roughly.

SEN. DURBIN: And you say that no notice was given to the INS of these revocations in 43 of the cases, is that correct?

MR. FORD: That's correct.

SEN. DURBIN: So the communications clearly broke down. The agencies that are supposed to be working together didn't work together in this instance. Then you have this other reference that 47 notices of revocation were sent by cable. When you say cable, I think of Western Union. In the world of e-mail, what is the world of cable all about?

MR. FORD: Essentially, the State Department has two ways they transmit the information that we're aware of. One is by fax. They fax the information to the appropriate lookout unit. And the other option is cable or e-mail that they use to notify. In this particular case they notified INS and FBI.

SEN. DURBIN: And if I read your report correctly, they'd better crank up their e-mail, because it took 12 days to deliver it.

MR. FORD: Yes, actually that was the average -- for those cases that were late, the average was 12 days. Actually a couple of them was over a month.

SEN. DURBIN: Explain that form of e-mail to me that would take a month for delivery?

MR. FORD: I can't explain it. All I can tell you is that when we looked at the written record at INS and looked at the dates on it, the difference between the date that the visa had been revoked and the time that they had received it was on average 12 days.

SEN. DURBIN: Not exactly a confidence booster. And I went through Dulles coming into the United States several months ago, and the long lines waiting to go through, or I supposed our names against a watch list, I suppose that's what it's all about, and finally when I got to the -- my position in line, the lady said, "I'm sorry, Senator, to tell you the computers have been down all day, we're just making it up. I want to see if anybody's going to admit to being a terrorist." How often does that happen, that the computers break down so that the watch list can't be applied to the incoming people from --

MR. FORD: I really can't answer that, I would have to defer to the administration on that, I don't know how often it breaks down. I've heard that it has.

SEN. DURBIN: The thing that strikes me about this system is we are talking about legitimate travelers who are applying for visas and whether they will be suspected to be terrorists and somehow denied a visa or have a visa revoked, and my guess is that the likelihood of a terrorist applying for a visa is about as strong as the likelihood of a fugitive going to the police department to report a change of address. It strikes me that this may not be the best way to stop terrorists from coming in the United States, and we still spend a lot of money doing it, and clearly don't do it very efficiently. Thanks for your report.

Thanks, Mr. Chairman.

SEN. CHAMBLISS: Just before we leave that on Senator Durbin's subject of communicating by cable or e-mail or whatever, are our computers not able to talk to each other between agencies?

MR. FORD: It's my understanding that they should be able to. The basic lookout systems that are at least as far as the former INS and the State Department, they're supposed to be compatible and they should be able to easily transmit the information.

SEN. CHAMBLISS: But it's still taking this period of time. Twelve days I would assume would be an extreme situation, but it still takes that long to get information in the right hands?

MR. FORD: Well, our view is it shouldn't take that long. The cases where we said they weren't timely, those were the 47 that I referred to out of the 240, the rest of them all were received within 24 hours.

SEN. CHAMBLISS: Senator Sessions?

SEN. JEFF SESSIONS (R-AL): You know, something that I'd like to pursue that general subject a little bit. As a prosecutor for a number of years, the burden of proof is a significant matter. If a person, let's say in a country that is known to have terrorist connections, a person comes to the embassy and asks to be able to get a visa to come to the United States, that's what they would normally do, is it not? That's what a lot of them do?

MR. FORD: Yes, if they're required to have a visa, they have to go in and file it.

SEN. SESSIONS: Come in and ask for it. Well, if that -- let's assume at that point that the embassy approves it and did not have any negative information about the individual. Let's say later something comes out that one of the organizations that that person had been involved in had terrorist connections and it raised a question about that person's possible connection to terrorist activity. Now this person's already in the United States. So now we've got a -- burden of proof trial to get them out of the country, is that correct?

MR. FORD: That's my understanding, sir.

SEN. SESSIONS: Whereas in the beginning the embassy can reject them for virtually any reason they deem fit. Any reasonable suspicion they may have -- they have pretty much discretion, do they not?

MR. FORD: That's pretty much true, that's correct.

SEN. SESSIONS: And so to me that's -- that is a problem I've thought about it for some time and thought it should have been in the one of our terrorist bills, a PATRIOT Act, that deal with this situation because as a matter of law -- is this a statutory or a judicial decision that allows this person to have a presumption that they can stay in the country until it's overcome? Do you know if it's statute or court ruling or regulation?

MR. FORD: I've been informed that it's statute.

SEN. SESSIONS: I think, Mr. Chairman, we ought to look at that statute because, yes, you could say that, but before the world of terrorism we could say that perhaps and it would work, but a person comes to America as a non-citizen by permission. They're here at the acceptance of the United States and they can stay here, and we allow more people to come to our country than any country in the history of the world's ever allowed to come to their country to visit and become citizens. But it is by our acceptance, and it can be revoked I think, at any time, but we've got this statute that is making it difficult. And I'll just say this: it's not a matter of burden or proof beyond a reasonable doubt.

We've got millions of people coming to this country and want to come to this country. If there's one in 50 chances that this individual may be a terrorist, this country does not have to let them stay here. But we get into a court trial and I don't know exactly what the burden level is but the net result of all of this is it overwhelms the INS, the State Department people, the FBI and whoever's involved in handling the case, and they don't have time to do it. And the problem with immigration law in America, fundamentally in my view, is we have the semblance of a legal system, we have a good group of laws on the surface that appear to work but in reality they're not working.

We're getting overwhelmed and we're not able to act and the protections that are, for example for terrorist activities, even there's a marginally connection to terrorism, I think we ought to be able to ask that person to leave, and terminate their tenure in the United States. Let me ask you a little further about some of the questions that Senator Durbin was pursuing. I thought -- I'm glad he asked that about why it took 12 days. I think it just -- are you saying that it took 12 days before they really got it entered and pushed the button to send the e-mail, in effect?

MR. FORD: Our information is based on the lookout unit at the former INS. The information we compared that with the time that the revocation had been officially signed by the Department of State. And when we say it took 12 days, that means that the INS unit didn't -- had not received the actual revocation on average 12 days from the time it had been revoked. Now, what that means is that theoretically and individual could have entered the country during that 12 day time frame who had a visa revoked but INS wouldn't have known about it because they hadn't entered it into their lookout system yet.

SEN. SESSIONS: So when we -- a person that has a visa and then has it revoked oftentimes those people are not in the country, and they'll be coming into the country? Sometimes they're already here, would they not be?

MR. FORD: Well, we found cases where visas had been revoked. We then went to INS and through the -- a couple of their databases, we were able to determine that the individual had entered the country. In our report we cited 30 instances of this. We've subsequently done a little more analysis -- we think the number could be as high as 50.

SEN. SESSIONS: Out of 240 cases? Fifty out of 240 entered, where if the system had worked properly they would not have been allowed to come in?

MR. FORD: Well --

SEN. SESSIONS: Or some may already have come in?

MR. FORD: Some, some. They may have been able to stop some. Now, we did confirm in our analysis we did find that when INS did in fact receive the information on a timely basis, they did in fact stop a number of individuals from entering. We identified 14 cases of that in our report.

SEN. SESSIONS: Is my time -- sorry, Mr. Chairman, if my time is up?

SEN. CHAMBLISS: We're being somewhat liberal, but not as liberal as Senator Durbin maybe would like for us to be.

(Laughter.)

SEN. CHAMBLISS: We're going to come back around too, if you want.

SEN. SESSIONS: All right. Just on that subject then, the whole deal here is if the information is somewhere in the computer in the sky, it is of no value unless it's in the hand of the person at the border. And that is difficult to do, but not impossible, businesses do it every day. If you get in trouble with your credit card, it goes on there within minutes probably, that no more approval of your credit card, and we ought to be able to do that with regard to this. And I will yield back -- I don't have anything to yield back, but I'll stop.

(Laughter.)

SEN. CHAMBLISS: Mr. Ford, the fact of the matter is, on those 47 cases where the average was 12 days for communication to take place, it probably just meant that the computers were talking to each other but it sat in somebody's box for 11 days before they picked it up on the 12th day, is that a fair assessment?

MR. FORD: We -- to be honest about it, we don't know the cause, we just know that the -- when we talked to the lookout officials at INS they had indicated that they just hadn't received the notifications on a timely basis.

When we viewed all 240 cases and the 47 that we referred to were a match between the date that the revocation occurred and the time that the INS had put it in their system. The reason that it was put in late, we can't -- we don't know the reason for that.

SEN. CHAMBLISS: All right. You made a comment on page 6 of your report, "There will always be some cases in which the information arrives after the visa has been issued." And I'm assuming from that that you're referring to the fact that State continues to look at individuals -- even though they may issue a visa, State continues to look at those individuals and if they come up with something after the fact, they still are communicating that, is that -- am I interpreting that correctly?

MR. FORD: That's correct, that's correct.

SEN. CHAMBLISS: Right. With respect to the FBI's lack of concern about individuals whose visas were revoked because of terrorism concerns unless their names were on the tip off. How significant is that, the fact that they weren't on the tip off list but the FBI's been notified that an individual may have some suspect of terrorist activity in his background? That to me, again, that appears to be pretty significant. Am I wrong in that, or am I correct?

MR. FORD: This actually raises an interesting issue. At the time we began our assessment of the visas, and the 240 names that I referred to, those names were provided to us by the Department of State. And we had asked them to provide names of individuals that had had their visas revoked because of some information that would indicate there could be some connection to terrorism. The FBI, when they testified in June, had indicated that their primary source of concern is a particular lookout list that they use, called tip off.

And that they felt that the 240 individuals that we had in our survey, according to them only 47 of them were in the tip off system, which is a system that's specifically designed to identify suspected terrorists. So they felt that the other individuals apparently were not of as much concern because they hadn't been identified through the tip off system as a potential terrorist. So the issue here really gets into the manner in which the Department of State makes a determination to revoke the visa in the first place.

We know that they did not always put those names into the tip off system, and from the FBI's point of view, if they're not in there, they're not of concern, unless they got some other information from some other source.

SEN. CHAMBLISS: Senator Cornyn.

SEN. JOHN CORNYN (R-TX): Mr. Chairman, I don't have any more questions for Mr. Ford, I just want to say, though, the more I hear about our immigration system, the more concerned I get.

SEN. CHAMBLISS: Thanks for those comforting words.

(Laughter.)

Senator Durbin.

SEN. DURBIN: Mr. Ford, one last question. Of the 240 visa revocations, was that out of a universe of about 13 million visas that were issued in that period?

MR. FORD: Actually, we were unable to get the universe of revocations. We were told --

SEN. DURBIN: Universe of visas issue.

MR. FORD: The number issued, I believe the number I cited was roughly 10 million, I believe, in 2002. The revocations -- I have to backup for a minute. These revocations were based on the screening process that the department had in place for particular individuals that they had a concern might have terrorist connections. So the 240 is -- that's the reason that they identified that number.

SEN. DURBIN: Okay. Just so the record's clear, 10 million in 2002, but there was a period of 2001 that was also included. So it would have included, I assume, 2 or 3 million others?

MR. FORD: The revocations cover from September 11th to the end of calendar year 2002.

SEN. DURBIN: Okay, so just use roughly 10 or 12 million visas issued, 240 revoked because of terrorist concerns. And the other revocations? Were there other visa revocations not for that?

MR. FORD: Yeah, apparently they have other types of revocations due to immigration concerns, things like that.

SEN. DURBIN: Any idea of the number that were generally revoked?

MR. FORD: We asked for a number, we were unable to receive a number. I don't think the department has a database that specifically captures all this information in one place, they have to pull it out of their overall universe.

SEN. DURBIN: Mr. Chairman, if it's any encouragement to the committee, I think we've made fantastic strides at the FBI when it comes to computer capabilities. Director Muller's done a fabulous job in a short period of time, and I've every confidence that Director Ridge will too. But we are still a long way from that interoperability that we need for these computer efforts to complement one another. Thank you.

…..

SEN. DURBIN: I concur with you completely, Mr. Chairman. I think all our talk about homeland security means little or nothing unless state and local law enforcement's involved in it. If there's a problem in Illinois, they're going to call 9/11, not Senator Durbin. And if the local law enforcement doesn't have the right information and resources, then they can't very well respond. I feel the same way you do about it.

I'd just ask of the panel, anybody can answer this, at any given time, how many people are in the United States illegally? Rough guess? Anybody? Anybody? Okay. How many are in the United States on expired or revoked visas at any given time? Hmm. Mr. Ahern, isn't that your area of responsibility?

MR. AHERN: Not exactly. We're actually responsible for the admissibility determinations at the ports of entry and once they've then entered the United States, then that becomes --

SEN. DURBIN: Ms. Jacobs, is that yours?

MS. JACOBS: Once someone has come in to the States we have no way to track their whereabouts. That usually is DHS' responsibility.

SEN. DURBIN: Well, Mr. Dougherty, you're the last one in line here. So can you answer the question?

MR. DOUGHERTY: I can answer with respect to what our responsibilities are. Which is --

SEN. DURBIN: But numbers? Do you have any ideas how many people in the United States at any given time are here on expired or revoked visas?

MR. DOUGHERTY: I do not have the specific information with respect to that. There are I believe estimates out there, which we would be happy to --

SEN. DURBIN: If you want to ask your staff, this is not the final exam, so you can ask your staff.

If anybody does know, I'd like to put it on the record if they do know. Maybe you could get back to me with that.

MR. DOUGHERTY: We would be happy to get back to you, but I would also like to point out that there are significant organizational efforts ongoing within the Department of Homeland Security with respect to tracking the sorts of things that you're concerned about and that you raised in the prior panel. Specifically you mentioned the area of entry-exit. We now have the US VISIT system, which has many components. ICE does not have responsibility for all its components, CBP and others have responsibility as well.

But it is an effort to understand who has been admitted lawfully, understand what they are doing here while they're here and understanding when they leave, and tracking those who do not leave in a lawful manner. So I hope that some of your concerns are addressed in that respect.

SEN. DURBIN: And I hope you'll get -- someone on the panel or all of you will get back to me with that information, because I think this really gets down to the heart of it, as to what we're dealing with here. How many people are in the United States at any given time illegally, undocumented? How many people are here on expired or revoked visas? So we have some kind of idea the universe we're dealing with here. We know how many visas we issue each year, do we not, Ms. Jacobs? That would be in the range of 10 million?

MS. JACOBS: This year, around 6 million.

SEN. DURBIN: Six million this year? Okay, 6 million. So if we know how many other people are here, either on expired or revoked visas or without any documentation, we at least have an idea of the nature of our challenge. And so the administration decided some months ago to start asking people from certain countries, visa holders, to come in and register. And they chose as their profile those who were from Muslim Middle Eastern countries.

And as I understand it, all of the visa holders from those countries came in and registered -- were asked to come in and register it. I'm sorry, adult male visa holders were asked to come in and register it. And how many did come in and register under that program? Ms. Jacobs, do you know?

MS. JACOBS: I don't have the exact numbers. I believe that over 100 nationalities were registered, but I think either Justice or DHS might have the actual numbers.

SEN. DURBIN: Anyone from DHS know the answer to that?

MR. AHERN: I don't have the particular numbers are far as those that were involved as part of the NSEERS program, I believe you're referring to, but would be happy to get some numbers and submit them to the record after, sir.

SEN. DURBIN: Okay. Well, I'm going to give you some numbers that I've heard, just speculative numbers that some 80,000 people registered and some 13,000 were deported as a result of it. And it raises some important questions, because if these Senators had the experience I did, they got a lot of phone calls from people who said, "My son was at college. He applied for an extension on his visa and he didn't get it, now he's been deported. What are you going to do about that?"

It's a good question. And it's a question that's been asked of my office many times. It goes to the heart of the point made by the chairman and by Senator Cornyn, too, the heart of their question in their statement about cooperation with state and local law enforcement. This is a little tricky, because if the purpose of our endeavor here is to gather intelligence to try to try to forestall or thwart terrorism we need the cooperation of a lot of people, including visa holders who could be friendly to us and helpful to us.

But if registering with our government means being deported tomorrow, the likelihood that they'll register and cooperate is diminished. I've run into this problem talking to people from the FBI. They know how to gather intelligence, but they can't do it by fly specking every potential immigration violation and visa violation and telling people they're going to be thrown out of the country. And I think that's part of our challenge, is to try to strike that balance there where we get good intelligence, good information to thwart terrorism, and try not to go to far towards Franz Kafka in the way we enforce it.

Thank you, Mr. Chairman.