Threats to National Security: The Asylum System, The Visa Lottery, and 245(i)

By Steven A. Camarota on October 9, 2002

Testimony prepared for the U.S. House of Representatives
Committee on the Judiciary
Subcommittee on Immigration, Border Security, and Claims
October 9, 2002

By Steven A. Camarota
Research Director, Center for Immigration Studies

When Hesham Mohamed Hedayet murdered Victoria Hen and Yaakov Aminov at Los Angeles International Airport on July 4 of this year, many observers mistakenly saw his crime, like the attacks of September 11th, as either unpreventable random acts of terrorism or as representing failures only of intelligence, law enforcement, or perhaps even airport security. While it is extremely important to consider possible failures in each of these areas, a careful examination of the immigration history of Mr. Hedayet reveals that fundamental failures in our immigration system also played a critically important part in allowing him to commit his heinous crime.

Although all of the facts have not been made public, a brief history of the Hedayet case is possible based on public information. Mr. Hedayet came to the United States from Egypt on a tourist visa in 1992, which allowed for a six-month stay. It seems clear that this was not his first long-term stay in the United States. In any event, before the visa expired he applied for asylum in 1992, giving him work authorization. Eventually his visa expired, but he continued to live in the United States as an illegal alien while his application for asylum was pending. His application was eventually turned down, as was his appeal in 1996. After he was denied asylum, the INS began deportation proceedings against him. However, his wife played the visa lottery, and in 1997 she won, which stopped his deportation and allowed her and her husband to become legal permanent residents. To obtain their green cards they used what was then a relatively new provision in the law called 245(i), which allowed them to have their green card applications processed from within the United States without having to return to Egypt for processing.

As for his crime, there is no question that it was premeditated, and that he intended to kill as many people as possible. Moreover, he walked past other airlines and started shooting only after he reached the El Al ticket area. There can be no doubt that he intended that many of his victims be Jewish. At the very least, in my view, his actions qualify as a hate crime. Moreover, reports in the London-based Al-Hayat newspaper indicate that Mr. Hedayet met with Ayman al-Zawahiri in 1995 and again in 1998. Al-Zawahiri is Osama bin Laden's second in command and is one of the founders of al Qaeda. Thus it is very possible that in addition to being a hate crime, Hedayet's murderous killing spree was also part of an al Qaeda operation. The Hedayet case raises a number of questions concerning the asylum system, the visa lottery, and 245(i). My testimony will briefly touch on each of these areas.

The Asylum System

Turning first to our asylum system. The Hedayet case is extremely troubling for several reasons. Although his asylum application indicated that he was applying for asylum because the Egyptian government thought he was a terrorist, the INS seems never to have investigated his possible link to al-Gamaa al-Islamiya, also called the Islamic Group. In fact, Mr. Hedayet indicated on his asylum application that he had signed a confession in Egypt admitting his membership in the Islamic Group. The circumstances surrounding Hedayet's asylum application are eerily reminiscent of a case in the mid-1990s involving Gazi Ibrahim Abu Mezer. Mezer, who lived in the West Bank, indicated on his asylum application that he too faced persecution, in his case from the Israeli government, because that country thought he was a member of Hamas. And again, like Hedayet, his possible ties to terrorists were never adequately investigated. Mezer was later sentenced to life in prison after he attempted to bomb the New York subway system in 1997.

The primary reason that the INS did not ask the Egyptian or Israeli governments about the asylum applicant's possible link to terrorism is that it would have violated the confidentiality of the asylum process. Moreover, there is a fear that foreign governments may move to penalize the applicant's family who are still in their home country if those governments become aware that he or she was applying for asylum in the United States. However, in my view the national security of the United States must supercede such concerns. The safety of the American people must be the top priority of the United States government, not the hypothetical risk it might create for the applicant or his family. Those who advocate the alternative point and do not support contacting foreign governments about the possible terrorist links of asylum applicants must accept responsibility for the increased risk of terrorism this creates and must also accept some responsibility for the heinous crimes committed by terrorists like Hedayet and Mezer.

Mr. Hedayet and Mr. Mezer are not the first terrorists to use our asylum system. Some of the most notorious terrorists in the 1990s used political asylum to enter and/or remain in the country. Sheik Omar Abdel Rahman, for example, used an asylum application to prevent his deportation to Egypt after all other means of remaining in the country had failed. Rahman inspired several terrorist plots, including the 1993 attack on the World Trade Center, and he is considered one of the spiritual leaders whose ideology helped found al Qaeda. Mir Aimal Kansi, who murdered two CIA employees, and Ramzi Yousef, who was sentenced to death for masterminding the first attack on the World Trade Center, both had asylum applicants pending when they committed their crimes. Moreover, Abdel Hakim Tizegha, who took part in the Millennium plot in 1999, and Ahmad Ajaj, who was involved in the first World Trade Center attack, both had applied for asylum as a means of remaining in the country. Tizegha's application had been denied prior to his arrest; and Ajaj left the country before attending a hearing but later returned and took part in the first attack on the World Trade Center.

Our lax asylum system, which often does not detain applicants and does not carefully investigate their stories, has been one of the favorite means for terrorists to live in the United States. Such a system has in the past allowed terrorists not only to enter the United States but has also allowed them to remain in the country moving about freely while they plan their attacks. In total, at least six seven if Hedayet is included al Qaeda terrorists have successfully manipulated our asylum laws. Several key reforms are needed, including more resources so that claims can be quickly and thoroughly investigated, more detention space so that anyone who might be a threat can be held and most importantly the INS must take very seriously any indication that the applicant is a possible terrorist.

Visa Lottery

The visa lottery, used by Mr. Hedayet and his wife, is also very problematic from a national security point of view. The lottery gives out permanent residence to 50,000 people a year who mail in post-cards and "win" the opportunity to come to America. The lottery gives green cards to people who have no strong ties to the United States. That is, unlike family-based immigration, which awards green cards to those who have relatives in the United States, the lottery goes to those who do not have a relative who can sponsor them. Certainly, individuals with few ties to the United States are more likely to be willing to attack our country. The attractiveness of the lottery to al Qaeda terrorists is also shown by the fact that Hedayet is not the only terrorist to use it. Ahmed Hannan and Karim Koubriti, indicted on August 28th of this year as members of a terrorist sleeper cell in Michigan, came to this country in 2000 after winning the lottery in Morocco. They are accused of planning attacks both here and abroad against American interests.

It is very difficult to see what purpose the lottery serves. It does not satisfy any humanitarian concerns. Moreover, unlike employment-based immigration, the lottery does not make any attempt to select people based on whether they have some special or much-needed job skill. Instead, the lottery, which requires the handling and processing of 10 million entries, and also the processing of tens of thousands of additional green cards each year that would otherwise not have to be processed, creates a significant administrative burden for the State Department and the INS two organizations that are already overburdened by the number of applicants in other categories.

In addition to creating administrative burdens and an avenue for terrorists to enter the country, one of the worst features of the lottery is that it encourages illegal immigration, as it did in the Hedayet case. Having no other means of remaining in the country, Hedayet stayed here anyway as an illegal alien even after his asylum application was denied. By appealing his asylum claim and by playing the lottery he was trying different means of remaining in the country. The existence of the lottery gave him a realistic hope of eventually getting a green card, if he just played the lottery long enough. He really had no other choice, because he did not have a family member who could sponsor him, nor did he have specialized skills which would have allowed him to qualify for employment-based immigration, and of course he did not qualify for asylum. If it had not been for the lottery, he and his family might have given up and gone home.

245 (i)

After not carefully exploring Hedayet's possible links to terrorists, and then allowing him to use the visa lottery, our immigration system compounded its failures by allowing him to get his green card using 245(i). Of course, he did qualify for it. Section 245(i) of the Immigration and Nationality Act allows illegal aliens (who have either snuck into the country or overstayed a temporary visa) to undergo visa processing (i.e., receive a green card) from within the United States. Applicants must pay a fine of $1,000, and by doing so they avoid having to return to their home country. 245(i) is a significant threat to American national security. Until the mid-1990s, most green card applicants would have been required to apply in their home countries.

There are many problems with 245(i): it represents a fundamental disregard for the rule of law, it makes all those who wait their turn in their home countries look like fools because they played by the rules, and it sends the message to those considering entering the country illegally that they may come whenever they want and stay illegally for as long as it takes get a green card. But putting all these concerns aside, from a national security standpoint there are two significant problems with allowing illegal aliens to undergo changes of status without going home to be processed. First, having the INS process applicants in the United States instead of requiring the alien to return to his home country increases the chance that any problem with the application will be missed. Consular officers in the home country speak the local language and know the local conditions, are in contact with local law enforcement, and are in a much better position to judge the validity of the application, and whether someone poses a security threat than is an INS employee who might be half a world away.

The second and most important reason 245(i) is a threat to national security is that even if the INS could assess applications as well as the State Department, processing applications from within the United States renders the background check meaningless because even if a person is found ineligible, he is still in the country. The INS has no procedure or means to require green card applicants who are rejected to leave the country. In contrast, if the applicant had to return to his home country to undergo processing and was then found ineligible he would have, in effect, deported himself. The only way to make the background check meaningful is to have it done in the applicant's home country. The existence of 245(i) not only made it less likely that Mr. Hedayet's possible terrorist links would have been uncovered, it rendered his background check meaningless. Mr. Hedayet himself was in fact turned down for a green card, and he in fact did live in the United States as an illegal alien. He is not the only terrorist who was turned down for a green card and simply continued to live here illegally. Mohammed Salameh, who was turned down for a green card in the early 1990s, remained in the country and rented the truck used in the 1993 attack on the World Trade Center.

Of course, many will argue that of the thousands of people who use 245(i), only a small fraction are criminals or terrorists. While this is certainly true, this is no reason to render the background check meaningless by processing applications in the United States rather than sending the person back to his or her home country. After all, the vast majority of airline passengers are not intending hijackers, but we still use metal detectors and x-ray machines on all of them before they board a plane. All security measures are always aimed at the small fraction of the population who intend to commit a crime. Everyone must be checked, and the check must be meaningful. And for the background check to be meaningful, individuals must return to their home country.


If it can be said that anything good may have come from the atrocities of September 11th, it is that many Americans have come to realize that immigration is not simply a matter of economics or something to think about in only romantic and nostalgic terms. No longer can quaint stories of one's immigrant grandmother be a substitute for intelligent discourse on one of the most important issues confronting the country. We need to realize that the failures in our immigration system that facilitated the attacks of September 11th or the July 4th murders at LAX airport are not mostly the fault of the INS. Yes, the INS has very real problems. But the failures in our immigration system result mostly from a lack resources, ill-conceived immigration policies, and most important of all, from a lack of political leadership. Many elected officials have been all too willing to adopt policies that clearly reward illegal immigration, and make protecting our nation much more difficult. Our lax asylum system, our inability to deport those who are turned down for a green card, along with the visa lottery and 245(i), are all examples of policies that create significant problems for American national security.

There is a fundamental misconception about how immigration policy can help in the war on terrorism. We often hear that the INS should "only go after the terrorists." But for the most part, apprehending someone who is a known terrorist is a matter of intelligence and law enforcement, not immigration policy. The way our immigration system can play a vital role in reducing the terrorist threat is by the mundane work of carefully processing applications and by strictly enforcing the law, such as by making those who are here illegally leave the country. A recent study published by the Center for Immigration Studies of 48 al Qaeda terrorists, including the September 11th hijackers, found that at least 22 had committed significant violations of immigration prior to taking part in terrorism. (Read the report here.) Given how common violations of immigration laws are among terrorists, strict enforcement would almost certainly be helpful in disrupting terrorism in the future.

We also have to eliminate programs such as 245(i) that expose the country to unnecessary risks or that create unnecessary administrative burdens such as the visa lottery. If we adopt a policy of using our immigration system to "only go after the terrorists," inevitably that will end up targeting people from Muslim countries for selective enforcement. I think we should reject a long-term policy of selective enforcement for only Muslims who violate immigration laws. We should enforce the law for everyone. Most people who argue that we should use our immigration system to target only terrorists almost certainly don't want it to result in selective enforcement. But that is the inevitable result nonetheless.