From the House Judiciary report.
On August 5, the House Judiciary Committee issued an interim report captioned “Terror at Our Door: How the Biden-Harris Administration’s Open-Border Policies Undermine National Security and Endanger Americans”. The key takeaway is that among the 5.4 million-plus illegal Southwest border migrants DHS has released from its custody (in violation of law) since January 2021, “at least” 99 of them were on the FBI’s “Terrorist Screening Dataset (TSDS)”, better known as the “terror watchlist”. The news doesn’t get much better from there, suggesting the administration doesn’t care about the national-security assessments of intelligence professionals when it comes to aliens with terror ties.
The Terrorist Watchlist. Prior to the September 11th attacks, there was no single “terror watchlist”. Instead, there were many such lists spread across various government agencies, all based on information they possessed and criteria they alone used. Most of those agencies were highly protective of their sources and methods, which made those lists unduly challenging to access government-wide.
The FBI Terrorist Screening Center (TSC) was created after 9/11 to consolidate that dispersed terrorist information into one watchlist. As TSC explains, “This watchlist has information on people reasonably suspected to be involved in terrorism (or related activities).” Thus, it’s not simply rumor and innuendo.
TSC continues: “Most people on the terrorism watchlist are not Americans, and they have no known connection to the U.S.” Until, of course, they do have a “connection to” this country, such as when CBP encounters them at the borders and ports.
Border Patrol Watchlist Encounters Skyrocket under the Biden-Harris Administration. According to CBP’s “Enforcement Statistics” web page, Border Patrol agents have apprehended 94 aliens on the terrorist watchlist in the first nine months of FY 2024, 93 at the Southwest border and one at the Northern border.
They join 172 other watchlisted aliens apprehended by Border Patrol agents in FY 2023 (169 at the Southwest border, three at the Northern border), 98 apprehended in FY 2022 (all at the Southwest border), and 16 in FY 2021 (15 at the Southwest border, one at the Northern border).
By contrast, a grand total of three aliens on the terrorist watchlist were nabbed by Border Patrol agents in FY 2019, all at the Northern border.
That massive increase alone should be a red flag for anyone concerned about national security. Why has there been such an increase, and more importantly why are those aliens coming now?
Alien terrorists have traditionally preferred to exploit the legal immigration system instead of crossing the border illegally, largely because (traditionally) it was easier to fool State Department consular officers than it was to sneak past Border Patrol agents — because those agents traditionally would detain them and most other illegal entrants, as the law requires.
It’s now infinitely safer and more effective to enter illegally than to run the risk of being denied a visa by a consular officer.
Which brings me to the “Biden-Harris Administration’s Open-Border Policies” referenced in the title of the above-mentioned House report.
By my conservative estimates, at least 88.5 percent of all illegal migrants encountered by CBP under the Biden-Harris administration have been released into the United States. Those releases — as a federal judge held last March — are the main reason why so many aliens (of all kinds) are entering illegally now.
That flood has overwhelmed Border Patrol’s resources, limiting their ability to separate economic migrants from the ones with terrorism ties and inclinations.
Consequently, that twisted terrorist calculus has been turned upside down, and it’s now infinitely safer and more effective to enter illegally than to run the risk of being denied a visa by a consular officer.
99 Terrorist Watchlist Releases. Keep in mind that the foregoing analysis only explains the increase in CBP encounters of illegal migrants who are on the terrorist watchlist — not why 99 migrants (and possibly more) on the list who were encountered by CBP under Biden-Harris were released, as the committee reported.
It’s apparent in at least one case that administrative snafus impeded agents’ ability to verify that the migrant in question (who entered with his family) matched a suspected identity on the watchlist. That’s understandable, I guess, but doesn’t explain why he was released before those issues were resolved.
More troubling is a case my colleague Todd Bensman first reported on 18 months ago, which the committee specially highlighted:
DHS had released yet another watchlisted alien, Issam Bazzi, in November 2021, after encountering him crossing the southwest border illegally. Despite “high[ly] derogatory information” in the FBI’s database, DHS decided to release Bazzi into the U.S. because he was overweight and may have been susceptible to COVID-19 in an ICE detention facility.
Nothing about that makes sense, particularly given that illegal aliens in DHS detention receive free medical care that may not be accessible on the outside.
“Immigration Judges Granted Bond to at Least 27 Aliens on the Terrorist Watchlist”. As the committee explained, “at least” 27 watchlist aliens weren’t cut loose by DHS per se, but instead were released on bond by immigration judges (IJs). In those cases, I can explain why that happened, but I can’t explain how it happened.
Last December, I examined the massive increase in illegal watchlist migrants who were apprehended at the Southwest border and asked a simple question: What did DHS do with them after they were caught?
So I did a little online digging, and discovered DHS was still following George W. Bush-era guidance issued by then-DHS Secretary Tom Ridge in October 2004.
Most watchlist information is classified, meaning that there are strict limits on its dissemination. The Immigration and Nationality Act (INA) and its implementing regulations, though, have long allowed government prosecutors to present that information to IJs without disclosing it to the aliens themselves.
That “Ridge memo”, however, allows DHS — agents, officers, and attorneys — to use such classified information “only as a last resort”.
Consequently, it did not appear that any ICE attorney had offered any immigration judge any classified evidence tying any alien respondent in bond proceedings to either terror or espionage concerns in the intervening 19 years.
The restrictions in the Ridge memo almost certainly explain why immigration judges bonded out watchlist aliens — they didn’t know about that derogatory information because DHS lawyers couldn’t share it with them.
If a think-tank pundit realized the Ridge memo was bound to create some issues as the number of illegal watchlist migrants encountered by CBP spiked, you’d assume somebody actually in DHS would have identified the issue and attempted to resolve it.
But they apparently didn’t, and it wasn’t until six months after I raised the issue (and after a number of high-profile releases came to light) that Ridge’s most recent successor, DHS Secretary Alejandro Mayorkas, issued updated guidance giving ICE attorneys more latitude in offering classified evidence in national security cases.
The restrictions in the Ridge memo almost certainly explain why IJs bonded out those 27 (and possibly more) watchlist aliens who were encountered at the Southwest border. They didn’t know about that derogatory information because DHS lawyers couldn’t share it with them.
Which gets to the unresolved “how” they were bonded out. As noted, DHS must — by statute — detain all aliens who are encountered by CBP at the borders and the ports, and that same statutory mandate prevents IJs from subsequently releasing them on bond, as then-Attorney General (AG) William Barr held in his April 2019 precedent decision in Matter of M-S-.
Barr’s not the AG anymore, but Matter of M-S- is still the law. Regardless of whether the IJs in those “at least” 27 terrorist watchlist cases were given the relevant classified evidence, they had no power to issue bonds to those aliens — so why did they, or more saliently, why didn’t ICE try to stop them?
IJs “Granted Asylum to at Least Four Watchlisted Aliens”, Two Others’ Cases Were “Terminated”. The committee report further explains that IJs “granted asylum to at least four watchlisted aliens”, and “at least two additional known or suspected terrorists [had] their cases terminated by an” IJ.
As strange as this may sound, alien terrorists are in a better position to prove the past harm needed to support an asylum claim than most other applicants. That’s because their home countries often have their own terrorist suspicions about those individuals, and at a minimum call them in for questioning and detention.
Again, the Ridge memo likely inhibited DHS’s ability to present classified watchlist information in those four (and possibly more) cases in which watchlisted aliens were granted asylum. In other words, the aliens were able to offer proof that their home governments were after them, but DHS attorneys couldn’t explain why that interest was likely legitimate.
The threat that a terrorist would be granted asylum by an IJ would appear to fall within that “last resort” exception to the use of classified evidence, even under the Ridge memo. Apparently not, however.
But even that memo doesn’t explain why cases involving watchlisted aliens were terminated.
In removal cases involving individuals encountered by CBP at the borders or the ports, there are only three questions IJs must resolve: (1) is the individual an alien; (2) if so, was the alien inadmissible to the United States; (3) if so, is the inadmissible alien eligible for any “relief” from removal, usually asylum?
If the respondent is an inadmissible alien, the IJ should either grant the respondent relief or order the respondent removed. “Termination” of the case isn’t relief from removal, and in cases involving inadmissible aliens, confers no legal status in the United States.
The problem, however, is that a directive issued in April 2022 by Kerry Doyle (the administration’s de facto ICE general counsel) encourages government attorneys to tank meritorious cases involving facially removable aliens who are ineligible for relief.
Consequently, of the nearly 132,000 asylum claims IJs decided in the first half of FY 2024, just over a quarter were either granted or denied. By contrast, more than 55 percent were “not adjudicated”, likely because all or most were terminated.
It’s bad enough the Biden-Harris administration is eviscerating the immigration system by allowing otherwise removable aliens to remain here without resolving their cases (kicking their cases down the road for some future administration to deal with), but when those aliens are on the terrorist watchlist, it’s recklessness bordering on insanity.
What About the Rest? At best, however, that only explains what happened to just over a third of the “at least” 99 watchlisted border and port aliens who have been released under the Biden-Harris administration. What about the rest?
According to the committee, three inadmissible watchlisted Tajikistanis were released into the United States after scheduled interviews at the ports, under the Biden-Harris administration’s “CBP One app interview scheme” (which I’ve discussed exhaustively elsewhere).
As the report notes:
Just last year, however, Secretary Mayorkas boasted about the vetting capabilities through the CBP One app, claiming the app “[a]llows [DHS] to screen and vet individuals before they arrive at our border.”
The Tajikistanis had “potential ties to ISIS” — a group that objectively poses a national security risk to the United States — which means that either CBP One vetting isn’t as effective as Mayorkas claimed or the administration doesn’t really believe — or care about — the opinions of U.S. intelligence professionals.
The committee makes clear that the U.S. government’s ability to vet aliens coming from abroad is extremely limited:
Instead of being vetted against databases in their home countries, illegal aliens are only screened against U.S. criminal databases and against INTERPOL. According to former Border Patrol Chief Rodney Scott, the U.S. government has “very, very minuscule data” available when an alien arrives at the southwest border because “[c]rimes committed by a foreign national outside the U.S. rarely appear in [U.S.] databases.” Instead, Chief Scott explained, illegal aliens at the border are essentially “vetted against a blank sheet of paper.”
That’s indisputably true, and migrant vetting weaknesses is an issue the Center has raised since the earliest days of the last administration.
But all 99 (or more) migrants in the report were released notwithstanding the fact that they raised terrorism concerns, which means that those releases weren’t simply the result of vetting failures.
The Biden-Harris administration has long dismissed Congress’s assessments about the dangers criminal aliens pose to the community. Perhaps that dismissive attitude carries over to the alien terrorism concerns of intelligence professionals, too. If so, it would explain a lot.