Office of the Inspector General at the U.S. Department of Justice recently released its
report on the detention and adjudication of illegal aliens
apprehended during the investigation into the September 11, 2001,
attacks on the World Trade Center and the Pentagon. The report identifies
numerous failings by the Immigration and Naturalization Service
(INS), the Federal Bureau of Investigation (FBI), and the
Department of Justice (DOJ). Most of these failings involve
bureaucratic mismanagement of the "hold until cleared" policy
implemented during the chaotic months following the attacks.
Nonetheless, the DOJ's basic policy
change--that illegal aliens arrested and in custody should be held
until the intelligence community clears them of terrorist links--is
sound. This policy, however, must be implemented in a manner that
respects the detainee's right of due process in the immigration
court system and targets individuals based on intelligence and
strict criteria--factors not included in the DOJ's initiative.
Establishing a Deportable Alien Screening and Clearance Center in
the Bureau of Immigration and Customs Enforcement (ICE) should
reduce the possibility of mismanagement and strike the appropriate
balance between security and a fair immigration system.
Foreign nationals applying for a visa or
seeking to enter the United States are already screened for links
to international terrorism. Their identifying information is
cross-referenced with terrorist watch lists maintained by the
Departments of State and Homeland Security. At present, however,
there is no comparable process for detained illegal aliens. After
release into the community or deportation, operatives of terrorist
organizations who had been detained would still be free to pursue
U.S. should compare the identities of those arrested on immigration
violations with foreign and domestic intelligence on international
terrorism. In addition, the Immigration and Nationality Act (INA)
and the Code of Federal Regulations should be amended to clarify
that suspicion of involvement with international terrorism is
grounds for denying release, both before and after an alien's
deportation hearing, instead of forcing immigration officials to
rely on the vague "risk to the community" provisions.
After a review by the ICE, those found to
have potential links to terrorism should initially be denied bond
by the Department of Homeland Security (DHS), although the detained alien should have
the right to challenge the determination through the immigration
courts in the Executive Office of Immigration Review. Likewise, an
illegal alien found deportable and with possible terrorist ties
should not be removed from the country until the suspected
connection has been investigated.
revised policy would apply only to a narrow group of individuals,
as identified by intelligence data, and would respect the detained
alien's right of due process by allowing challenges to the
government's determinations in the immigration courts. Implementing
such a balanced policy would require the following steps:
- Establishing a Removable Alien Screening
and Clearance Center in the Bureau of Customs and Immigration
Enforcement dedicated to screening detained illegal aliens using
- Amending the INA so that it clearly
allows for the detention of illegal aliens with suspected terrorist
- Developing standard operating procedures
for the Center to determine whether or not an illegal alien
warrants further investigation for terrorist ties.
- Integrating the screening and clearance
process into the existing immigration adjudication process to
ensure due process before an immigration court.
- Requiring periodic reporting to Congress
by the DHS's Civil Rights and Civil Liberties Officer on the
Center's operations and the implementation of the revised clearance
THE NEED FOR A "HOLD UNTIL CLEARED"
Illegal aliens released on bond or their
own recognizance rarely appear at their removal hearings. In fact,
52 percent of aliens released in 2001 and 49 percent released in
2002 failed to appear for court proceedings. To make matters worse, those not
appearing at the court hearing were rarely re-arrested. As Eugene
R. Davis, a retired deputy chief patrol agent for the U.S. Border
Patrol, explains, "I would estimate that there has been no effort
to locate 95 percent of these aliens." Many times, such aliens are not
investigated again until they have committed some sort of
is a dangerous trend given the recidivism rate among released
criminal aliens as shown in a study completed by the DOJ Inspector
General in 1999. The Inspector General found that of 35,318
criminal aliens released by the INS between 1994 and 1999, at least
11,605 went on to commit new offenses. Similarly, the INS Inspector General
found that 11 percent of those paroled under deferred inspections
into the U.S. from nine major airports failed to appear to complete
their inspection. Of these, 50 percent were known criminals or on a
government lookout list.
illegal aliens with potential ties to terrorism are treated
similarly, this will undermine government efforts to prevent
terrorism and waste resources on finding previously detained
aliens. Similarly, removal before clearance could allow a terrorist
to remain active and conduct attacks against the United States and
its interests. And deporting a terrorist to another country could
harm diplomatic relations with that country if the individual is
involved in future attacks in that country.
PROBLEMS IDENTIFIED BY THE INSPECTOR
DOJ Inspector General's report identified a number of shortcomings
and inefficiencies in the implementation of the Justice
Department's "hold until cleared" policy, but it did not find the
policy itself faulty:
We do not criticize the decision to
require FBI clearance of aliens to ensure they had no connection to
the September 11 attacks or to terrorism in general. However, we
criticize the indiscriminate and haphazard manner in which the
labels of "high interest," "of interest," or "of undetermined
interest" were applied to many aliens who had no connection to
the most part, the problems identified were the result of
administrative failures, poor communication, a lack of standards,
and the incapacitation of INS facilities in New York City.
administrative failures produced serious consequences including
delays in notifying aliens of the charges against them, which in a
small percentage of cases was excessive, and in some cases denial of the aliens'
right to challenge the government's decision to hold them without
bond or beyond the 90-day removal deadline.
A Lack of
Every illegal alien arrested during the investigation,
even if not targeted by the investigation, was considered related
to the terrorism investigation and therefore detained. Before initiating a
hold, the FBI did not attempt to assess whether there was
sufficient reason to believe that the individual had a connection
to the investigation or terrorism.
result, many illegal aliens were detained despite having no
connection to the investigation. In fact, of the 762 illegal aliens
reviewed in the study, only Zacarias Moussaoui has been charged
with a terrorism-related offense. The other 761 detainees were
properly arrested and detained for violations of U.S. immigration
laws, but the FBI did not attempt at the beginning of the process
to determine which detainees actually had ties to the investigation
or terrorism. This lack of standards also led to frequent
disagreements between the INS and the FBI office in New York City
on who should be detained.
communication also inhibited successful implementation of the
policy. The "hold until cleared" policy was never clearly outlined
Instead, it was implemented through word of mouth, personal memos,
and e-mail, resulting in confusion. For example, the FBI's
International Terrorism Operations Section was required to notify
the INS as to whether a detainee was "of interest," meaning the
individual should be detained until investigated and cleared by the
FBI, or "not of interest," under which normal procedures were to
apply. However, the FBI frequently failed to make any designation.
When this occurred, the INS automatically considered the detainee
"of interest" and bond was denied.
Serving Notices to Appear
The Inspector General also found that approximately 25
percent of detainees did not receive their Notice to Appear (NTA),
the initial notification of the charges against them, within the
INS's target deadline of 72 hours. Yet this failure did not violate
any law because there is no statutory deadline for delivery of an
administrative problems caused by the September 11 attacks led to a
number of delays. For example, service outages (e.g., electricity)
in Manhattan forced the INS to close its New York District Office
and Varick Street Service Processing Center. With all flights
grounded and the INS's antiquated information technology
infrastructure still heavily reliant on paper, overnight delivery
of the necessary paperwork from the National Records Center in
Missouri was impossible. Because the Varick Street Center was
closed, many detainees were transferred to the processing center in
Newark, New Jersey. However, New York INS officials failed to
notify the Newark Center that their NTAs had not been issued.
important, in the aftermath of the attacks, the INS leadership
required the National Security Unit and the Office of the General
Counsel (both at INS headquarters in Washington) to review all
charges. These additional steps inevitably resulted in bureaucratic
delays, partly because the National Security Unit had a staff of
only six people at the time. This policy was rescinded on November
28, 2001, and authority for developing the charges against an alien
was returned to the district offices.
Failure to Clear
The Inspector General noted that DOJ officials expected
the FBI to clear aliens without links to terrorism within a few
days or weeks.
Cases actually took an average of 80 days to process, with many
taking over three months. The slow pace of the FBI's review was
particularly apparent during its analysis of information provided
by the CIA, which took on average 54 days.
Inspector General determined that the delay was caused primarily by
the FBI's failure to devote adequate resources to review the
Instead of spending the time to review each case against terrorism
data, FBI agents typically moved onto the next case after the alien
was arrested. In addition, the FBI headquarters did not impose a
deadline for completing the investigations. Finally, the FBI did not establish a
process for prioritizing investigations to support the DOJ's
position during bond redetermination hearings. The combination of
these factors caused massive delays in clearing individuals for
Denial of Court Challenges
The slow pace also affected immigration adjudication. The
FBI frequently failed to provide the INS with any data connecting
individual detainees and terrorism for use in bond redetermination
hearings. As a result, in order to comply with the "hold until
cleared" policy, the INS was repeatedly forced in bond
redetermination hearings to seek continuances or rely on generic
affidavits from FBI agents describing the importance of the
investigation to national security.
tactics are cause for concern. By repeatedly seeking continuances,
the INS slowed the adjudication process and further taxed an
already overstretched system. Of even greater concern, relying on
generic documents denied aliens the right to have hearings based on
the merits of their own cases instead of on broad national
addition, the Inspector General found that, on a regular basis,
removable aliens detained after the 90-day removal deadline were
not granted Post-Order Custody Review hearings even though such
hearings are required by federal regulations. These hearings are an important
component of the immigration adjudication process as they are
intended to review whether immigration officials are justified in
detaining an alien after the 90-day period because the alien poses
a risk to the community or is unlikely to comply with the removal
order. This failure
is a grave violation of the alien's right to due process and
blatantly violates provisions in the INA.
A SOLVABLE PROBLEM
short, the Inspector General's report shows that serious problems
can arise when major policy initiatives are implemented during a
time of crisis. It also suggests that instituting the appropriate
planning and safeguards in the clearance process could correct
Establishing a clear chain of command
through an Alien Screening and Clearance Center dedicated to
screening aliens for terrorist links, amending the INA to govern
the policy, codifying operational standards in the Code of Federal
Regulations, integrating the clearance process into the immigration
adjudication system, and ensuring congressional oversight should
enable the ICE to protect both the national security and the rights
of aliens in the United States.
Screening and Clearance Center
To correct the deficiencies identified in the
Inspector General's report, the Administration should first
establish a clear chain of command and procedures for administering
a screening and clearance program. The Inspector General simply
recommended that the FBI devote sufficient resources to clearing
However, with the DHS now tasked with immigration enforcement, it
should logically manage the clearance process as well. This would
also free the FBI for other work.
centralize the review of apprehended illegal aliens for links to
terrorism, the DHS should establish a Removable Alien Screening and
Clearance Center in ICE, modeled loosely on centers currently used
by ICE and the U.S. Coast Guard to target incoming containers and
ships for further inspection. The Center would be responsible for
determining whether or not a detained illegal alien requires
additional investigation for potential terrorist links.
Center should make an initial determination by checking each
alien's identity (e.g., name, birthdate, visa, and passport)
against federal intelligence and law enforcement data on
international terrorism. To expedite this process, the Center
should have access to all federal terrorism data sources, including
the Terrorist Threat Integration Center's databases at the Central
Intelligence Agency. While interagency cooperation could achieve
the same objective, the Inspector General's report illustrates the
efficiency cost of such a process. Using modern information
technology would accelerate the clearance process and reduce
detention time for aliens who are not connected to terrorism.
conduct such reviews, the Center must have access to classified
data, not just declassified reports from the intelligence
community, as was the case with many INS officials during the
facilitate this, Congress should amend Section 105 of the
Immigration and Nationality Act to give the DHS's Border and
Transportation Security Directorate "access to all information,
including reports, assessment, analysis and unevaluated
intelligence related to threats of terrorism against the United
States" instead of merely extracts as currently described in the
After notification of an arrest from
immigration officials, the Center should be required to complete an
initial screening of the alien within 48 hours and notify the
detaining official whether or not the alien has a suspected link to
terrorism. This will give the detaining official cause to deny
release for those aliens with a suspected link.
receiving the Notice to Appear, the Center should be required to
supply the detaining official with the details of the suspected
link in advance of the alien's first hearing. The Center, in cooperation with the
FBI and the intelligence community, should then initiate an
investigation into any suspected link to determine its validity. If
the link is substantiated, appropriate charges should be brought.
Otherwise, the detained alien should be cleared for release or
removal, when appropriate.
Detention of Suspected Terrorists
The Immigration and Nationality Act outlines a number of
grounds for detaining an illegal alien before the removal hearing,
pending removal, and after the statutory 90-day removal period.
These provisions generally focus on criminal grounds, but they also
include national security provisions. While membership in an
international terrorist organization is listed, suspicion of terrorist ties is
present, aliens could possibly be held under the "risk to the
community" standard, but in recent decisions, such as Zadvydas v.
Davis, the Supreme Court of the United States has found this
standard unclear at best. In order to avoid future legal
battles, Congress should amend the INA to specify clearly that
suspicion of terrorist ties, as determined by the DHS, is grounds
for detaining an excludable or deportable alien throughout the
removal process. The legal standard should be suspicion, not
Detention During the 90-Day Removal
Period. Section 236(a) of the Immigration and Nationality Act
allows the Attorney General to detain or release aliens arrested
for immigration violations pending a decision on their removal from
the United States, with the exception of criminal aliens, who must
be detained. To clarify Congress's intent and avoid court
challenges, Congress should add another exception to Section 236,
requiring detainment of aliens potentially linked to terrorism.
Detention After the 90-Day Removal Period.
Generally, aliens ordered deported who cannot be removed within 90
days are to be released. However, the INA allows for detention
beyond this period for removable aliens who violated their
non-immigration status, engaged in criminal activity, are a threat
to the community, or pose a threat to national security. To allow
for the detention of aliens after the 90-day period, Congress
should amend Section 241(a)(6) of the Immigration and Nationality
Act to specifically include potential links to terrorism as grounds
for detaining an excludable or deportable alien beyond the 90-day
Clearly defined standards for determining when an
illegal alien should be detained during the adjudication process or
beyond the normal 90-day removal deadline are essential to the
success of the program and the protection of basic civil liberties.
The DHS should codify these standards by issuing new rules in the
Code of Federal Regulations.
Detention Before Removal Hearings. When an
immigration official decides to bring charges against an illegal
alien, the Center
should be notified and given a copy of the alien's file and any
other relevant information. The Center should then compare this
information with intelligence information on known and suspected
international terrorists, organizations, and activities. Within 48
hours, the Center should notify the charging official of any
potential link so that the alien can be denied pre-hearing release.
When the charging official issues a Notice to Appear to an illegal alien
and a court date has been set, the Center should be notified. The
Center should then, prior to the alien's first appearance in court,
provide the charging official with the reason that a terrorism link
Detention During the 90-Day Removal
Period. Specifically, an alien with suspected links to terrorism
and ordered removed should be held until cleared by the Center,
although the alien should have the right to challenge this finding
in the immigration court. Alternatively, if the alien's country is
willing to cooperate in the investigation, the deportation could
proceed. The second option poses substantially more risk because
the receiving country may not take sufficient action to ensure
detention if a link is confirmed. Therefore, the DHS should be
required to obtain certification from the Secretary of State that
the receiving country is both able and willing to monitor the alien
pending conclusion of the investigation.
Detention After the 90-Day Removal Period.
Generally, after 90 days an alien must be released unless the DHS
can show that the alien can be removed within a reasonable time, poses a risk to the
community, or is unlikely to comply with the removal order. The Code of Federal
regulations should be amended to codify a screening and clearance
policy for aliens held beyond the 90-day removal period.
Specifically, a fifth subsection should be
added to Title 8, Chapter 1, Part 241.4 (a) to allow detention of
an alien determined to have potential links to terrorism beyond the
prescribed 90-day period. Section 241.4(1) allows for the detention
of aliens who are inadmissible under the INA, violated their
non-immigration status or conditions of entry, are unlikely to
comply with their removal order, or pose a risk to the
Furthermore, review and certification by
the Center should be added as a ninth factor to Part 241.4(f) as
part of the consideration of whether to release or continue to
detain an alien.
The amendment should clearly state that those suspected of
terrorist ties should be detained pending further
response to the Supreme Court's "special circumstances"
fourth condition should be added to Part 241.14(d), stating that "a
potential or recognized connection to international terrorism"
constitutes a danger to the community that justifies holding aliens
beyond the 90-day period. Section 241.14 was issued by the
Department of Justice in November 2001 to describe these
Although the Supreme Court specifically
excluded national security and terrorism cases from Zadvydas v.
Davis, the aliens
being reviewed by the Center will have been detained on standard
immigration violations, not national security or terrorism grounds,
so the government's broader national security powers would not
apply. Section 241.14(d) specifically addresses the national
security and terrorism concerns under which an alien can be held.
However, it is limited to those shown to have terrorist links as
defined by the INA, vaguely described as presenting "a significant
risk of terrorism,"
or for which "no conditions of release can reasonably be expected
to avoid the threat to the national security or the risk of
recommended change would clearly indicate that detainees with a
suspected link, not cleared by the Center, should not be released
after the end of the 90-day period until cleared.
Right to Due Process
The new screening and clearance policy should also be
implemented in a manner that respects the alien's right to due
process in front of the immigration court system. An alien
currently has the right to challenge detainment during each step of
the process. This right must be preserved.
the alien's pre-removal hearing court challenge, however, the
burden of proof should rest with the alien in order to give the
Center time to investigate the link. Placing the burden on the
alien has precedent in immigration proceedings. For example, to
obtain release, aliens must prove that the government is unable to
make removal arrangements in a timely fashion after the conclusion
of the 90-day statutory removal period. During any hearing after
the 90-day removal period, the government should be required to
show, in a classified setting, why it needs additional time to
investigate the suspected link. By this time, the Center should
have been able to show some progress in its investigation and,
therefore, a need for further detention.
Nonetheless, the Center should be required
to provide immigration authorities with the intelligence data
illustrating a potential link that can be presented to the
immigration judge in a classified setting. The alien should be
given as much information as possible related to the suspected link
without compromising sources, methods of intelligence collection,
or details about the federal government's knowledge of the
international terrorist threat.
Reporting to Congress
Oversight by Congress is an important means of reducing
the likelihood that any federal program will be abused. This is
particularly true in the area of immigration and nationalization
policy, authority over which is expressly delegated to the Congress
by the Article 1, Section 8 of the U.S. Constitution.
part of its oversight responsibility, Congress should require the
DHS's Civil Rights and Civil Liberties Officer to report
periodically on the status of all cases in which an alien is being
detained due to targeting by the Center and on the DHS's success in
implementing the recommended standards. In support of this
reporting mechanism, the Secretary of Homeland Security should
require the Center to report each case of an alien being denied
bond for further terrorism investigation to the Civil Rights and
Civil Liberties Officer and update any changes of status.
Effective management of the entry, exit,
and immigration of foreign nationals is a crucial component of a
successful homeland security strategy. It is also an important
element of the foreign policy of the United States and a barometer
of how free American society is.
successful immigration policy must incorporate all of these
interests into each step of the process. In managing this process,
the Departments of Homeland Security and Justice have a
responsibility to protect the American people from terrorist
threats. They must assess whether illegal aliens, such as those who
overstay their visas, have hostile intentions and factor that
assessment into the adjudication process.
The DOJ Inspector General's recent report
on the detention of aliens arrested during the investigation of the
September 11 attacks on the United States demonstrates that
anti-terrorism efforts risk being implemented in a manner that
undermines civil liberties and the rule of law. A more effective
implementation of a screening and clearance policy is therefore
crucial to providing security and fairness in immigration
The DHS must establish a more efficient
screening process to identify individuals who should be detained
based on intelligence data, not coincidence. At the root of this
effort should be the establishment of a Removable Alien Screening
and Clearance Center in the Bureau of Immigration and Customs
Enforcement, dedicated to investigating arrested aliens for ties to
addition, Congress should legislate this policy as a national
objective by amending Sections 236(a) and 241(a)(6) of the
Immigration and Nationality Act to allow for the detention of
arrested aliens pending clearance by the Center. Likewise, the DHS
must establish standards for the Center's operations and role in
the immigration adjudication process and codify these standards in
the Code of Federal Regulations.
These new laws and procedures must respect
the alien's rights to due process in the immigration courts, and
Congress must exercise due oversight to prevent abuse. By taking
these steps, it will be possible to achieve the benefits of
screening for terrorist ties while avoiding many of the problems
identified by the Inspector General.
Scardaville is Policy Analyst for Homeland Security in the
Kathryn and Shelby Cullom Davis Institute for International Studies
at The Heritage Foundation.