DHS Officials Testify on "Preventing Terrorists from Acquiring U.S. Visas"

By Dan Cadman, May 10, 2017

Three senior officials within the Department of Homeland Security (DHS) recently presented unified testimony for a House of Representatives hearing titled "Preventing Terrorists from Acquiring U.S. Visas".

Within the testimony, there is a great deal of discussion about layered and in-depth security measures being undertaken to vet aliens through means both at home and abroad, before they arrive in the United States. The measures are meaningful, and certainly part of a comprehensive effort by U.S. officials to protect the homeland. And yet ... and yet ... something is clearly amiss, as is evident to even the casual observer who pays attention to the spate of terrorist and would-be terrorist attacks plaguing our country, not to mention some of the heinous crimes committed by aliens who entered legally, often with student or tourist visas, and then overstayed.

I don't want to flank-shoot too quickly and sharply here, because in relative terms the current administration is brand new and still finding its stride. That job has been made more difficult by the last eight years of lax oversight and downright subversion of immigration enforcement by the prior administration. But I hope sincerely that newly incumbent White House and DHS officials don't too quickly take on a protective attitude toward the bureaucracies they represent or oversee, lest they themselves lose the capacity to be objectively clear-eyed when systems just aren't working as they ought to, or to stay mindful of the fact that many of the people they work with, although careerists, came into positions of prominence during the Obama administration and therefore may not truly see things through the same eyes as the Trump White House.

Here are a few off-the-cuff observations that came to mind as I read the testimony:

First, I find it difficult to understand why U.S. Citizenship and Immigration Services (USCIS) plays no prominent role in the "layered defenses" discussed in such detail within the testimony. It is as if they don't exist, and yet an agency responsible for adjudicating a whole range of immigration benefits that lead to entry into the United States seems to me to be a fundamental player in vetting (or lack thereof). And, as I mentioned earlier, clearly something has been lost in the last several years, in establishing the proper balance between protecting the homeland on one hand and, on the other, the wholesale granting of benefits by the hundreds of thousands, as evidenced by what happened in San Bernardino, Calif., in 2015 (to mention just one example of many).

Second, the DHS officials speak of their overseas agents in the Visa Security Program (VSP) having "recommended the refusal of more than 8,500 visas" to Department of State consular officers. What we don't know is whether or not those recommendations were adhered to. This brings me to a more important, but little known, point. Since enactment of the Homeland Security Act of 2002, the DHS secretary has had the statutory authority to establish visa policy, and to direct denial of visas. To my knowledge, no DHS secretary has ever promulgated regulations to delineate visa issuance policies on behalf of the United States government; and no DHS secretary has ever issued instructions delegating the authority to deny a visa to appropriate Homeland Security (or subordinate agency) officials. Thus, as things stand, only the secretary himself could render such a denial.

The result is that although a consular officer, on his or her own initiative, could ignore the recommendations of a VSP agent, conversely, if that VSP agent wanted to press the issue, he or she would have to elevate the matter through multiple levels of his bureaucracy before it would ever reach the DHS secretary. The obvious consequence is that VSP agents know full well that they would never receive a decision that must go up, and then back down, a huge hierarchical chain of command, in a timely manner. The more subtle message this failure to delegate also sends to these agents is that they are taking serious career risks in even attempting to elevate conflicting views to the secretary, lest they not be supported within their own organization.

Third, it seems to me that there is an over-reliance within DHS, and perhaps the entire federal apparatus, on electronic systems to act as "red-light, green-light" systems for vetting purposes. Such systems are only as good as the data put into them: garbage in/garbage out, as the saying goes. What's more, if there's nothing in the system to bounce against, then there will be no flashing lights, no "warning-warning-warning" alerts, even though the person whose biographic and biometric data is being searched may indeed be a thoroughly dangerous individual. It is hubris for American homeland security officials to believe that information about every terrorist who poses a threat is contained within one of the dozens of federal intelligence and law enforcement systems. That is one reason why human interaction in at least selective instances is irreplaceable. Experienced federal officers have the capacity to watch body language and understand linguistic nuances and shifts that signal evasion. Yet such interactions are becoming increasingly rare because of reliance on electronics in the digital age.

Finally, although it's a hackneyed phrase, finding terrorists often truly is a needle in a haystack proposition. You may not even know it's a needle when you encounter it. It's worth recalling that the "20th hijacker" failed to become a part of the 9/11 attacks because he was stopped by an immigration inspector who didn't think he was entitled to enter. The inspector didn't necessarily think he was an intended terrorist; he was just another malafide entrant attempting to scam his way into the country. But he was stopped, denied entry, and only a very long time later did the significance become apparent. Sometimes it will never be apparent.

The point is this: Immigration officers going about their routine duties, when they perform them robustly — whether via inspections at ports of entry, patrolling the frontier, or conducting investigations and removal actions in the interior — can have a salutary effect on public safety and homeland security. Conversely, when they are fettered in performing their missions, as happened for the last eight years, we cannot even know how many needles these officers failed to come across or came across and failed to recognize. This is particularly relevant to those aliens who initially enter the country legally, either through visas or as a part of the visa waiver program, and then fail to depart and melt into the populace of 11 million-plus illegal aliens inside the United States.

According to the DHS inspector general, less than 1 percent of visa and visa waiver overstays are apprehended. There are at least three reasons for the failure to apprehend any significant percentage of these aliens:

  • The first, as I indicated earlier, is that under the prior administration, there was neither the will nor the appetite to take the issue of overstayed aliens seriously.

  • The second, equally unacceptable, reason is that many agents from ICE's Homeland Security Investigations Division (a significant number of whom came out of the now-defunct Customs Service) simply think overstay compliance and apprehension work is beneath them and give it nothing but lip service.

  • The third, and most pressing reason is that the work is, as often as not, unfruitful for agents. By the time leads are generated and sent to field offices, they're stale (if, in fact, they were ever viable). Thus agents spin their wheels and rarely gain traction in their efforts to try and find such aliens. This in turn leads frustrated agents to dislike time spent on overstay compliance efforts.

How to resolve this? One way is to reinstitute other methods of immigration enforcement that have become dormant in recent years, such as employer worksite investigations. Many overstayed aliens — even those who have connections to terrorist groups (Hizballah comes quickly to mind) — seek out work and could be located and taken into custody as a corollary to operations in and around workplaces and industries in which illegal aliens find unauthorized employment.

Another way is to break the barrier that precludes ICE agents' access to Social Security quarterly earnings records. These are a fruitful source of timely information about the many aliens who are working illegally, often using phony or stolen Social Security numbers.

A third way is to reinstitute a viable foreign student compliance program that includes taking into custody and removing violators who abuse the program to gain entry and then fail to attend, or drop out of, school.

What is clear is this: Current estimates suggest that nearly half of the illegal alien population falls into the category of visa and visa waiver program overstays. This is a breeding ground for terrorist cells. Clearly there is something wrong with DHS's "layered" approach to security when so many aliens manage to procure visas, or entry via the waiver program, only to prove themselves after-the-fact to have been scamming the system to gain entry and stay — sometimes with serious malintent.