Another Terrorist Exploits the Diversity Visa Lottery

By Andrew R. Arthur on November 1, 2017
Related: Press Release

On the afternoon of Halloween 2017 in downtown Manhattan, a 29-year-old Uzbek national identified as Sayfullo Habibullaevic Saipov "plowed into a crowd of bicyclists and pedestrians just blocks away from the World Trade Center."

How did he get here? According to press reports, he immigrated through the "Diversity Visa (DV) Lottery". If this is true, he will not have been the first terrorist to have exploited this national security vulnerability, and unless we shut down this pointless program, he will not be the last.

This would not be the first time that I have had to consider the terrorist exploitation of this program. On October 9, 2002, as immigration oversight counsel for the House Judiciary Committee, I participated in a hearing that I had prepared for the then-Subcommittee on Immigration and Claims relating to Hesham Mohamed Ali Hedayet. As then-Chairman George Gekas explained in his opening statement at that hearing:

This hearing has been called, as everyone knows by now, to consider the interactions between the Immigration and Naturalization Service and Hesham Mohamed Ali Hedayet. This is the individual who, on July 4, 2002, at the Los Angeles International Airport, gunned down several people, killing two, and then being caught in fire himself whereby he perished.

Hedayet was an Egyptian immigrant that day when he "strode into the airport and approached the El Al Airlines ticket counter, where he opened fire Thursday morning, killing ticket agent Victoria Hen, 25, and Yaakov Aminov, 46, who had driven a friend to the airport."

Why was Hedayet in the United States, let alone at LAX? Bill Yates, then-deputy executive associate commissioner for the Immigration Services Division at the former Immigration and Naturalization Service (INS) detailed Hedayet's immigration history at that hearing.

According to Yates, Hedayet was admitted to the United States on a visitor's visa on July 31, 1992 (with permission to remain in the United States until January 25, 1993), and subsequently applied for asylum on December 29, 1992. In that application, Hedayet claimed "discrimination and police harassment due to his religious beliefs." He "was interviewed regarding his asylum claim on March 30, 1993," at which time:

He testified that he had been arrested and tortured multiple times, and was also made to sign documents admitting his membership in Gama'a al-Islamiyaa. He state[d] that he [was] not a member of Gama'a al-Islamiyaa but of Assad Eben Furat Mosque Association, an organization that advocates the application of Islamic laws in Egypt.

That application was denied, and Hedayet was issued an Order to Show Cause for a deportation hearing, in which he was charged as a nonimmigrant overstay. As Yates explained: "Later, after his wife won a visa through the annual diversity visa lottery, Mr. Hedayet filed an adjustment of status application with INS. The INS interviewed him on this application and approved it in August 1997."

My now-colleague Steven Camarota also testified at that hearing. Prophetically, he told the subcommittee:

One of the problems with the lottery is that it gives green cards to people who have no strong ties to the United States, unlike family-based immigration. Certainly individuals with few ties to the United States are more willing and more likely to engage in attacks on our country. The attractiveness of the lottery to terrorists is shown by the fact that two terrorists arrested in August of this year in Michigan also used the lottery. ... Clearly, strictly enforcing our immigration laws and permanently eliminating policies like the lottery and 245(i) could significantly reduce the terrorist threat.

This was not to be the last time that Camarota testified about this program. At an April 29, 2004, hearing that I prepared for the House Judiciary Committee's then-Subcommittee on Immigration, Border Security, and Claims on the "Diversity Visa Program and Its Susceptibility to Fraud and Abuse", he reiterated these warnings, explaining that amongst other flaws, the DV program "Creates an Opportunity for Terrorists":

Ordinary fraud is bad enough, but after the September 11th attacks, immigration fraud of any kind poses a dire security threat. We must remember that the lottery does not draw people randomly from around the globe. Winners come disproportionately from countries that were part of the special registration system for temporary visitors set up by DHS after 9/11 . All observers agree that these countries are of special concern in the war against Islamic extremism. And about a third of winners come from those countries.

Several lottery winners have already been involved in terrorism in the United States. Michigan sleeper cell member Karim Koubriti, convicted this summer on terrorism-related charges, was a lottery winner from Morocco, as was Ahmed Hannan, who was acquitted of terrorism charges in the same trial but convicted of document fraud. The most notorious lottery winner is, of course, Hesham Mohamed Hedayet.

The lottery is ideal for terrorists because it encourages immigration from those parts of the world were fraud is common, documents are difficult to verify, and al Qaeda is very active. Moreover, it allows people into the country with no family or other significant connections to the United States. Again, this is tailor-made for someone wishing to attack our country. While there are other ways to enter the country, a green card is far more valuable to terrorists than a temporary visa such as those for tourists or students. A green card lets a person stay in the country indefinitely and this gives terrorists the time they may need to plan a sophisticated plot. Moreover, permanent residency allows the recipient to work at almost any job they like, get a licen[s]e to handle hazardous material, and to travel to and from the United States as often as they please. If one were to set out to design a visa that was ideal for terrorists, the visa lottery system would be it.

In addition to these terrorists, then-subcommittee Chairman John Hostettler noted that: "a Pakistani national who pleaded guilty in August 2002 to a single count of conspiracy to use arson or explosives to destroy electrical power stations in Florida ... also entered the United States under the DV Program."

That same subcommittee held another hearing on June 15, 2005, on the "Diversity Visa Program", which I also prepared. Chairman Hostettler began that hearing by stating:

The lack of restrictions on admissions under the DV program has also been identified as a vulnerability that could be exploited by criminals and terrorists. It should be noted in this regard that almost 1,900 aliens from state sponsors of terrorism were selected in the DV 2005 lottery. From 1995 to 2003, 18 percent of Diversity Visa recipients were from countries of concern with respect to terrorism. Further, unlike other visa categories, aliens who enter the United States under the DV program do not need familial or business ties to our country. Such relationships logically make it more likely that immigrants entering our country have a stake in our country's success as well as skills to contribute to our economy.

At that hearing, my now-colleague Mark Krikorian testified that:

The fraud [in the program] is bad enough, of course, in the abstract, but after 9/11, this poses a serious security threat. First of all, it is a diversion for the State Department, a diversion of time and resources from people who are supposed to be attempting to screen terrorists and others out of those who are trying to come to the United States. And the lottery composes a large portion of the work in a number of important consular posts.

Nor does it draw people randomly from around the world. It disproportionately draws people from the Islamic world, the very countries where al-Qaeda is active. And I have some statistics on that in my statement.

This is not theoretical. As you said, Mr. Chairman, there are actual terrorists who have come in through the lottery program. ...

There are other ways to get here. For instance, temporary visas and what have you, but a green card enables a terrorist to do a lot more than a temporary visa would. And the real vulnerability is not simply in the process that the Kentucky service center deals with, the initial application. The security vulnerability especially comes from the final application process where the winning numbers can and in fact according to the State Department have been sold to people who did not actually apply; and this gives al-Qaeda or any other bad guys attempting to enter the United States an opening.

In his testimony at that hearing, the State Department (DOS) Inspector General (IG), Howard J. Krongard stated that in a September 2003 report, his office had recommended that the DOS Bureau of Consular Affairs (CA) "propose legislative changes to the Immigration and Nationality Act to bar aliens from states that sponsor terrorism from the Diversity Visa program."

As he explained: "OIG continues to believe that the Diversity Visa program contains significant risks to national security from hostile intelligence officers, criminals, and terrorists attempting to use the program for entry into the United States as permanent residents." Despite this fact, OIG's simple, common sense proposal was never adopted.

Three hearings in less than three years, the last of which was held more than a dozen years ago, foreshadowed the violence that reportedly occurred in Manhattan on October 31, 2017. So why wasn't anything done to shut down, or at least limit, the DV program?

First, as IG Krongard admitted:

[Consular Affairs] expressed concern with permanently disbarring aliens fleeing oppressive regimes of states that sponsor terrorism. For example, aliens fleeing oppression from Cuba, Libya, Syria, and Iran would be ineligible to apply for a visa via the Diversity Visa program if this recommendation were strictly implemented.

This of course, ignores, the humanitarian relief that is available to aliens legitimately fleeing persecution, including asylum under section 208 of the Immigration and Nationality Act (INA) and refugee status under section 207 of the INA.

Second, influential members of Congress were involved in the implementation of the DV program, and therefore had a vested interest in its continuation. The Washington Post reported on November 1, 2017, that Senate Minority Leader Chuck Schumer played "a key role in drawing up the program in 1990," but the paper argued that: "His proposals eventually became part of a broader immigration package that was passed by Congress in a bipartisan vote and signed into law by a Republican president." That a 111-page bill had a "bipartisan support" should hardly let the sponsor of a four-page provision therein that poses a national security risk off the hook. Nor should the signature of a "Republican president" to that bill have such effect when his party had a 10-seat minority in the Senate and an overwhelming 67-seat minority in the House at the time of that bill's passage. This is especially true when the sponsor of that legislation was powerful "liberal lion" Ted Kennedy.

The concerns that were raised at those hearings 12 years ago are even more true today. U.S. Immigration and Customs Enforcement (ICE) has compiled "a list of Specially Designated Countries (SDCs) that are said to 'promote, produce, or protect terrorist organizations or their members.'" In FY 2016, of the top 10 source countries for DV immigrants, four were on the SDC list: Egypt (number two, with 2,855 immigrants), Iran (number three, 2,788 immigrants), Uzbekistan (number five, 2,378 immigrants), and Sudan (number seven, 1,833 immigrants).

Even if it turns out, contrary to press reports, that Sayfullo Habibullaevic Saipov did not enter the United States under the DV program, this avenue of immigration poses unjustifiable risks to the United States and must be shut down. The RAISE Act, S. 354, would do just that, and Congress should consider that bill, or similar legislation, to eliminate this national security vulnerability.