THE NEED FOR A "HOLD UNTIL CLEARED" POLICY

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.4 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."5 Many times, such aliens are not investigated again until they have committed some sort of crime.

This 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.6 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.7

If 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 GENERAL

The 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 terrorism.8

For 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.

DOJ administrative failures produced serious consequences including delays in notifying aliens of the charges against them, which in a small percentage of cases was excessive,9 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 Standards

Every illegal alien arrested during the investigation, even if not targeted by the investigation, was considered related to the terrorism investigation and therefore detained.10 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.

As a 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.11

Poor communication also inhibited successful implementation of the policy. The "hold until cleared" policy was never clearly outlined in writing.12 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.13

Delays in 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 NTA.14

The 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.15 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.

More 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.16 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 Detainees Expeditiously

The Inspector General noted that DOJ officials expected the FBI to clear aliens without links to terrorism within a few days or weeks.17 Cases actually took an average of 80 days to process, with many taking over three months.18 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.19

The Inspector General determined that the delay was caused primarily by the FBI's failure to devote adequate resources to review the detainees' cases.20 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.21 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 release.

Inappropriate 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.22

Both 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 priorities.

In 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.23 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.24 This failure is a grave violation of the alien's right to due process and blatantly violates provisions in the INA.

A SOLVABLE PROBLEM

In 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 these problems.

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.

Establish a 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 detained aliens.25 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.

To 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.

The 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.

To 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 investigation.26 To 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 INA.27

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.

Upon 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.28 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.

Clearly Allow 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,29 suspicion of terrorist ties is not.

At 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.30 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 extensive proof.

Detention During the 90-Day Removal Period. Section 236(a) of the Immigration and Nationality Act allows the Attorney General31 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.32

Detention After the 90-Day Removal Period. Generally, aliens ordered deported who cannot be removed within 90 days are to be released.33 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 deadline.

Develop Standard Detention Procedures

  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,34 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 Appear35 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 is suspected.

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,36 poses a risk to the community, or is unlikely to comply with the removal order.37 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 community.

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.38 The amendment should clearly state that those suspected of terrorist ties should be detained pending further investigation.

In response to the Supreme Court's "special circumstances" requirement,39 a 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.40 Section 241.14 was issued by the Department of Justice in November 2001 to describe these circumstances.41

Although the Supreme Court specifically excluded national security and terrorism cases from Zadvydas v. Davis,42 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,"43 or for which "no conditions of release can reasonably be expected to avoid the threat to the national security or the risk of terrorism."44 The 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.

Preserve the 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.

In 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.

Require Periodic 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.

As 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.

CONCLUSION

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.

A 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 proceedings.

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 terrorism.

In 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.

Michael Scardaville is Policy Analyst for Homeland Security in the Kathryn and Shelby Cullom Davis Institute for International Studies at The Heritage Foundation.