In an October 3, 2018 post, my colleague Todd Bensman detailed the method by which Somali national Abdulahi Hasan Sharif, who has been charged in Canada in connection with a September 2017 attack in which he allegedly conducted vehicle-ramming attacks while carrying an ISIS flag in Edmonton, Alberta, was able to transit the United States to that country. Some key facts concerning Sharif are still unknown, and merit an investigation by the Office of the Inspector General (OIG) in the Department of Homeland Security (DHS) to identify any vulnerabilities that Sharif exploited in our border inspection system.
As Bensman wrote:
The quick bottom line: There is new information [in an Edmonton Journal/Edmonton Sun article] about how Sharif was able to journey to the Mexico-California border and then, once across and legally present on a probable asylum petition that ended with a deportation order, still managed a successful northward crossing of the U.S.-Canada border without apparently raising any flags.
As he admitted, however, there is much about Sharif's case that is unknown. For example, Sharif showed up at the San Ysidro port of entry without documents, and was taken into custody. In an October 2017 post, I speculated that Sharif claimed credible fear at San Ysidro, and was held for a credible-fear interview under section 235(b)(1)(B) of the Immigration and Nationality Act (INA).
Bensman noted that the reporter for the Edmonton Journal/Edmonton Sun who investigated Sharif's case (Jonny Wakefield) could not clarify why that alien was ordered deported to Somalia by an immigration judge. As Bensman explained:
This couldn't be done because no government or processes had developed enough to accept him. One of my seven questions was why Sharif was ordered deported to Somalia after what almost certainly was an asylum claim. Wakefield actually used the U.S. Freedom of Information Act to get a one-page redacted summary of Judge Carmene "Zsa Zsa" Depaolo's order. But it didn't say why Sharif was ordered deported.
In a later October 2017 post, I referenced reporting at the time indicating that Sharif had been released from U.S. Immigration and Customs Enforcement (ICE) custody under the Supreme Court's 2001 decision in Zadvydas v. Davis. In that decision, I noted, the Court held that "once removal is no longer reasonably foreseeable, continued detention is no longer authorized by statute", and the alien must be released.
As I stated:
It should be noted that even if he had been found not to have a "credible fear", it is doubtful that Mexico would have accepted him back. In that situation, he probably would have been held by ICE in an attempt to obtain a travel document to Somalia, and when that inevitably failed, he would have been released in accordance with Zadvydas.
Sharif was, however, ordered removed from the United States by an immigration judge, according to CBC, on September 22, 2011. This suggests either that he made an asylum application that was denied, or that he withdrew his asylum application in the course of his removal proceedings. Again, if Sharif had used a smuggler, the smuggler likely would have told him that even if he were ordered removed, he would likely be released. If not, he probably would have received this information from other detainees at the Otay Mesa detention facility where he was held. In any event, absent information that Sharif posed a danger to the United States, once he was paroled in at San Ysidro, the odds were high that he would be released into this country, as the CBC reports happened on November 23, 2011. All thanks to Zadvydas.
I commend the work of Bensman and Wakefield. Because of the asylum confidentiality regulation at 8 CFR § 208.6, however, it would be impossible for even the most intrepid reporter (or knowledgeable pundit) to determine the exact mechanics that enabled Sharif to be released from ICE custody and make his way to Canada.
That is why a DHS OIG investigation is crucial. The confidentiality provisions specifically provide, at 8 CFR § 208.6(c)(v), for disclosure of asylum information in connection with "any United States Government investigation concerning any criminal or civil matter", including an OIG investigation.
There is precedent for such an investigation. In March 1998, the Department of Justice (DOJ) OIG issued a special report captioned "Bombs in Brooklyn: How the Two Illegal Aliens Arrested for Plotting to Bomb the New York Subway Entered and Remained in the United States". As that report explained:
In the early morning hours of Thursday, July 31, 1997, police officers from the New York City Police Department raided an apartment in Brooklyn, New York, based on a tip that people in the apartment had an explosive device that they intended to use to bomb the New York subway system. During the raid, the police arrested two men, Gazi Ibrahim Abu Mezer (Mezer) and Lafi Khalil (Khalil), and recovered a pipe bomb in the apartment.
After the arrests, the police determined that Mezer and Khalil were Palestinians who were in the United States illegally. It was also learned that Mezer had been apprehended three times in the previous thirteen months by the Immigration and Naturalization Service (INS) as he attempted to illegally enter the United States from Canada. After Mezer's third detention in January 1997, the INS had begun formal deportation proceedings against him, but Mezer had been freed on bond while the deportation proceedings were pending. After his release, Mezer had filed an asylum application stating that he suffered a fear of persecution if he were deported to Israel because the Israeli government wrongly suspected that he was a member of a terrorist organization known as Hamas. Mezer subsequently withdrew this asylum application, representing through his attorney that he had left the United States. It was discovered that he had not done so when he was arrested in the Brooklyn raid. Khalil was also in the United States illegally, having come to the United States on a tourist visa that had expired.
The revelations about Mezer's and Khalil's illegal immigration status provoked significant criticism about how their cases were handled, and generated requests that the Office of the Inspector General review how both came to enter and remain in the United States. As a result, we decided to undertake this review, which focuses on how Mezer and Khalil illegally entered and remained in the United States.
That thorough and comprehensive report focused, in particular, on the contacts that Mezer and Khalil had with immigration authorities, what occurred when they came to the United States, the legal proceedings involving their cases, and why various federal officials took the actions that they did, including releasing Mezer from custody.
Unlike the cases of Mezer and Khalil, and again assuming that the Canadian charges are sustained, Sharif was actually able to carry out what would appear to be a full-blown terrorist attack. Respectfully, this would make a DHS OIG investigation of Sharif's movement to the United States, through the immigration system, and within the United States to Canada even more appropriate.
The DOJ OIG's report actually examined how Mezer applied for and received a Canadian visa, and how he entered Canada and applied for refugee status in that country. Given these facts, DHS OIG should also investigate how Sharif was able to enter Canada and gain status in that country.
It should be noted that DHS OIG can conduct such an investigation on its own initiative, or at the request of a member of Congress. Given their jurisdiction over inspectors general, it would be particularly apt for Senate Homeland Security and Government Affairs Committee Chairman Sen. Ron Johnson (R-Wisc.) and/or House Oversight and Government Reform Committee Chairman Rep. Trey Gowdy (R-S.C.) to request such a report to ensure that is completed in a timely manner.
The answers are out there. To protect the American people from any future exploitation of weaknesses in our border and inspections system, it is critical that the people know how that system failed.