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Immigration And Naturalization Service's Role In Fighting Terrorism
by Daryl F. Bloom
Assistant District Counsel - INS Philadelphia District

In the wake of the September 11, 2001 attacks on America, I, along with countless others, was dispatched to Washington, D.C., to staff the Federal Bureau of Investigation, George Bush Strategic Information and Operations Center (SIOC). The SIOC was the heart of the Pentagon/Twin Towers Bombing (PENTTBOM) investigation. The SIOC is a Secure Compartmental Information Facility (SCIF) located on the fifth floor of the FBI building. Gaining access to the SIOC requires a special compartmentalized, as well as a top-secret, clearance. The main room is a large open space surrounded by numerous smaller breakout rooms and offices. There are no windows in any of the rooms. The room was designed to divide into many sections and is capable of handling several events at one time. In January, the SIOC was sectioned off and used to prepare for the Super Bowl and the Winter Olympics.

During the PENTTBOM investigation, virtually every United States federal law enforcement agency was represented in the room. Military personnel, law enforcement agents, attorneys, and support staff, occupied every inch of the forty thousand square foot space. In some instances two individuals, on the same shift, shared a desk despite the fact that the room was equipped with more than one hundred desks, computers, and monitors and contained a maze of computer and telephone wires. Dozens of fax machines occupied almost an entire wall. CNN Headline News, C-SPAN, and CNBC could be viewed on two, five by fifteen foot video screens, which provided up-to-date news reports. In addition to the charts and diagrams, dozens of enlarged photographs of the hijackers and the damage from the September 11 attack were displayed throughout the room as a constant reminder of the seriousness of the task.

The Director of the FBI, Robert Mueller, and Attorney General John Ashcroft frequently passed through the room providing greetings and encouragement to the staff. In addition, the room was often buzzing with official visitors, including President Bush, Vice President Cheney, the Director of Homeland Security, Tom Ridge, and numerous high-ranking military officials, Senators, and Congressman. The President, Vice President, and Director of Homeland Security thanked us for our dedication and hard work and assured us that the responsible parties would be brought to justice.

The dedication that we felt in the room was an extraordinary testament to the task force's commitment to public service. Even though many members were away from their homes and families for significant periods of time and living in hotels, they were honored to serve. Everyone in the room was helpful to the fullest extent possible. In addition, the support of the public was overwhelming. For example, several businesses and organizations donated snacks for the personnel who were working during late night and early morning hours. Elementary school students sent a thank-you note, which was displayed in a break room and encompassed almost an entire wall. Some of the local restaurants extended their hours to stay open for the personnel working at the FBI headquarters, despite the fact that tourism was down, and they would not likely have other customers during those hours. An FBI agent's parents donated a full dinner, rivaling most families' Thanksgiving Day dinners, for the dozens of employees at the SIOC one Sunday afternoon.

I represented the Immigration and Naturalization Service (INS) at the SIOC, answering legal questions related to immigration arrests, detentions, searches, and other evidentiary matters. Originally, INS attorneys from Boston, Pennsylvania, New Jersey, and Washington, D.C., were assigned to the SIOC in twelve-hour shifts, twenty-four hours a day and seven days a week. After two weeks, the shifts were reduced to eight hours and weekend shifts were eliminated. The reality was twelve-hour business days and only a few hours on the weekends. The dedication and energy felt throughout the room eased the long hours spent at the SIOC, and the hectic pace made the time pass quickly. The field attorneys with which I dealt and the staff at the National Security Law Unit at the INS Headquarters and FBI Headquarters greatly assisted with the heavy caseload.

All national security and terrorist-related cases are assigned to special, designated attorneys in the district and field offices, who receive special training in the handling of these types of cases. The appropriate Office of the Regional Counsel for the particular region and INS Headquarters' Office of the General Counsel monitor the cases. A staff attorney in the office of the General Counsel will serve as the liaison between the CIA, FBI, Department of State, the National Security Agency, and other federal agencies.

Although tremendous progress in the investigation and a large number of immigration arrests were being made, the task force needed to address the hundreds of immigration cases related to the investigation. A unique working group was quickly established to deal with the aliens, defined as any person who is not a citizen or national of the United States, linked to the attack or contacted due to a PENTTBOM lead.

The working group consists of representatives from the INS, FBI, Office of Immigration Litigation (OIL), Terrorism and Violent Crime Section (TVCS) and the Deputy Attorney General's Office. The group's primary responsibility is to liaise with the FBI, INS, and United States Attorneys' offices in the field and at the headquarters offices, to facilitate information and evidence sharing. The group also coordinates the cases to ensure that those aliens linked with the attack are not released until they can be criminally prosecuted or removed from the United States. The cooperation between these agencies is unparalleled.

Once an individual is encountered , based on a PENTTBOM lead, INS agents initiate an investigation to determine his or her immigration status. Such cases are generated internally by the INS, subject to concurrence by the FBI, or generated by a referral from the FBI to the INS. The TVCS and the United States Attorney's Office for the Eastern District of Virginia and Southern District of New York determine if material witness warrants should be issued based on information they may provide to a grand jury. Criminal charges are prepared by the United States Attorney's office in the controlling district, in the event that an alien might be placed in immigration removal proceedings and ordered released on an immigration bond by an Immigration Judge. Many of the individuals arrested by the INS based on PENTTBOM leads were eligible for release on bond because they were not removable based on a terrorist ground of removal. The Immigration Judge may not re-determine the custody conditions with respect to an alien who has been charged with a terrorism ground of removal.

The authority of the Immigration and Nationality Act allows INS agents to arrest and detain aliens on immigration matters while the investigation continues, with the goal of bringing those responsible for assisting in the September 11 attack to justice. Although some of the individuals could not be criminally prosecuted for the attack, they could be removed from the United States, which helps neutralize or eliminate possible future threats. The law enforcement community and others quickly became aware that the INS is a valuable asset to law enforcement.

Many of the people working outside of the INS are not familiar with the ever-evolving and complex immigration statutes and regulations that may be helpful. The Immigration and Nationality Act is a labyrinth of laws, exceptions, and waivers. Therefore, when asked to write this article about my experience at the SIOC, I determined that it was a perfect opportunity to provide a basic guide to the INS's handling of terrorist cases and immigration laws in general.

The INS, through its designated employees, has expanded search powers, which proves helpful in the investigation. Authorized INS officers and employees have the power to conduct a search, without a warrant, of any person, and of the personal effects in the possession of any person, seeking admission to the United States. The officer must have reasonable cause to suspect that grounds exist, which would be disclosed by the search, for denial of admission to the United States under the INA. Authorized INS officers have the power to board and search for aliens on any vessel within the territorial waters of the United States, and any railway car, aircraft, conveyance, or vehicle within a reasonable distance from any external boundary of the United States.

INS officers also have extended interrogation and arrest authority. Authorized officers and employees of the INS have the power, without warrant, to interrogate any alien or person believed to be an alien, as to his or her right to be, or to remain, in the United States. The officers and employees also have the power to arrest any alien in the United States if there is reason to believe that the alien is in the United States in violation of law and is likely to escape before a warrant can be obtained for his arrest.

The INS must make a determination within forty-eight hours of arrest, unless voluntary departure is granted, whether the alien will be continued in custody, released on bond or recognizance, and whether to issue an NTA. An exception to the forty-eight-hour rule occurs in the event of emergency or other extraordinary circumstances, in which case the INS must make such determinations within an additional, reasonable period of time. This exception was created in response to the terrorist attacks. In many cases, obtaining the necessary information within forty-eight hours is nearly impossible, and the country was in a President-declared state of emergency. The difficulty in determining identity is compounded by the fact that documents from many countries have poor security features. In addition, a vast network exists of false documentation, passports, driver's licenses, and birth certificates. Determining identity within forty-eight hours in every case is virtually impossible.

If appropriate, the INS places the individuals in removal proceedings under Title II of the Immigration and Nationality Act (INA). Removal proceedings are initiated by the issuance and filing of a charging document called a Notice to Appear (NTA), which sets forth the factual and legal basis for attempting to remove the alien from the United States.

Individuals, placed in removal proceedings, are either charged with inadmissibility or deportability grounds of removal. An alien is inadmissible if he or she is attempting to enter the United States, or is present in the United States, without being lawfully admitted or paroled. An alien is deportable if he was lawfully admitted into the United States but has failed to maintain his immigration status, overstayed his visa, or engaged in qualifying unlawful conduct. Most federal and state convictions can form the basis of a charge of removal and many may also bar the individual from various waivers and forms of relief, which would allow the individual to lawfully remain in the United States, notwithstanding certain criminal convictions.

Engaging in terrorism renders an alien subject to removal. Filing a terrorism charge of removal requires the approval of the INS HQ National Security Law Unit under the Office of the General Counsel and the National Security Unit under Field Operations. A terrorism charge can be filed for any alien that engages in, is likely to engage in, or has engaged in, terrorist activity; incited terrorist activity; is a representative of a foreign terrorist organization; or, is a member of a foreign terrorist organization which the alien knows or should have known is a terrorist organization. Terrorist activity is defined in INA section 212(a)(3)(B)(ii) and includes:

  • hijacking or sabotage of any conveyance;
  • seizing or detaining and threatening to kill, injure, or continuing to detain another individual in order to compel a third person or government to do or abstain from doing some act;
  • a violent attack upon an internationally protected person;
  • an assassination;
  • and, the use of any biological agent, chemical agent, nuclear weapon, explosive device or firearm with the intent to endanger the safety of others or cause substantial damage to property.
Terrorist activity also includes any threat, attempt or conspiracy to do any of the foregoing.

"Engage in terrorist activity" means to commit, as an individual or as a member of an organization, an act of terrorist activity or an act that provides material support to any individual, organization or government in conducting a terrorist activity. "Engage in terrorist activity" is defined in INA section 212(a)(3)(B)(iii) and includes:
  • the preparation or planning of a terrorist activity;
  • the gathering of information on potential targets for terrorist activity;
  • the providing of any material support (including a safe house, transportation, communications, funds, false documentation, weapons, explosives, or training) to any individual the actor knows, or has reason to believe, has committed or plans to commit a terrorist activity;
  • the soliciting of funds or other things of value for terrorist activity or a terrorist organization and;
  • the solicitation of any individual for membership in a terrorist organization or to engage in a terrorist activity.
The Department of State publishes a list of entities that are designated as foreign terrorist organizations. The list also includes other names the group has used or is known by, abbreviations to the name of the group and acronyms. In order for the entity to be subject to designation as a "foreign terrorist organization" under the Anti-Terrorism and Effective Death Penalty Act (AEDPA), the Secretary of State must find that an entity is a foreign organization engaging in terrorist activities that threaten the national security of the United States. Nonetheless, it is important to note that an alien may still be a terrorist even if he or she is not affiliated with any organization included in the list of terrorist organizations, and a group can be a terrorist organization even if not so designated by the Secretary of State. Thus, an alien, who is a member of a non-designated terrorist organization, or who is otherwise believed to have engaged or is likely to engage in terrorist activity, may still be inadmissible or deportable from the United States.

After a decision is made to proceed under Title II removal proceedings and to issue an NTA, the charging document is then filed with the Immigration Court. The Immigration Court is an administrative body under the authority of the Attorney General of the United States. Immigration Courts are trial level tribunals, which determine whether an individual is in the United States in violation of United States law and, if so, whether there is any waiver or benefit available to the individual that would allow them to remain in the United States lawfully. An INS Assistant District Counsel represents the INS at the hearings. Aliens have the right to be represented by counsel, but at no expense to the government.

In removal proceedings, the alien must show the time, place, and manner of his or her entry into the United States. The INS must establish the individual's alienage and removability by clear, convincing, and unequivocal evidence. The burden then shifts to the respondent to establish nonremovability. When an alien makes an application for a visa or other entry document, he or she must prove that he or she is eligible to receive such a visa or document, and that he or she is not inadmissible under any provision of the Immigration and Nationality Act.

The federal rules of evidence do not apply in immigration removal proceedings. To be admissible, evidence need only be relevant, probative, and its use must be fundamentally fair. Hearsay evidence has no per se objection. An alien has the right to examine the evidence against him and to cross-examine witnesses presented by the government. However, an exception exists with respect to classified material presented by the INS to rebut applications for relief or support the respondent's inadmissibility to the United States. The 1996 antiterrorism bill that followed the Oklahoma City bombing and first World Trade Center bombing specifically authorized the use of classified evidence in some immigration proceedings. However, the use of classified evidence in immigration proceedings has existed since at least 1956.

The Service has the ability to present classified evidence in an in camera and ex parte proceeding. The use of classified evidence requires the approval of INS Headquarters and the Deputy Attorney General's office. Therefore, the request should be made as soon as possible. Statutory provisions authorizing the use of classified evidence appear primarily in INA sections 235(c) and 240(b) No provision allows for the review or confrontation by the alien (or his representative). The respondent is only provided access to an unclassified summary of the material, and then only if the agency providing the material deems that it can safely be provided. Removal proceedings are civil in nature. Therefore, the procedural safeguards prescribed for criminal cases are not applicable. In a federal civil case, plaintiffs have no right to classified information.

The Supreme Court has affirmed the use of classified information in Title II proceedings where the disclosure of such information would be prejudicial to the public interest, safety, or security, of the United States. However, classified information should only be used when absolutely necessary in order to protect the information from unnecessary disclosure. Other ways to obtain the same information through unclassified means or sources should be used when available. The reliability of the evidence is always questioned and must be addressed at the forefront.

Some federal courts have ruled against the government in "secret evidence" cases. In one of the first decisions concerning the use of classified evidence under the 1996 legislation, a federal district court ruled that the use of classified information against an alien accused of having links with terrorists was unconstitutional and violated the alien's right to due process. Kiareldeen v. Reno, 71 F. Supp. 2d 402 (D. N.J. 1999).

The plain language of the Act bars the use of classified evidence to establish deportability, as opposed to inadmissibility, in removal proceedings. Classified evidence may be used only in opposition to the alien's admission or once deportability is established. The Act provides for the use of classified evidence in opposition to applications for discretionary relief. If the government wishes to use classified evidence to establish deportability, it must invoke the Title V procedures through the Alien Terrorist Removal Court (ATRC).

The ATRC was established to adjudicate special removal proceedings where the INS seeks to remove an alien terrorist under a terrorism charge. The ATRC is comprised of five United States District Court judges appointed by the Chief Justice of the United States Supreme Court. A single judge presides over the individual special removal proceeding. Before this court, the government has the burden of establishing, by a preponderance of the evidence, that the alien is a terrorist. The sole issue in such a proceeding is whether the alien is removable. The alien is entitled to legal representation at government expense if he or she is unable to afford private counsel. Although Title V of the Immigration and Nationality Act provides these special courts, it has generally been found that the public interest is better served by charging such aliens in ordinary expulsion proceedings under Title II of the INA.

A common fallacy is that the INS can detain aliens based solely on their illegal presence in the United States. Although aliens arriving in the United States are not eligible for bond, there must be a justification for the detention of aliens already present in the United States. This requires some individualized inquiry. Mandatory custody provisions exist for some aliens who are present in the United States and removable for terrorism and certain criminal grounds. The United States Supreme Court holds that the Due Process Clause applies to all persons within the United States, including aliens, whether their presence in the United States is lawful, unlawful, temporary, or permanent. Some federal district courts have held that the mandatory custody provisions contained in the Immigration and Nationality Act are unconstitutional. Patel v. Zemski, 275 F.3d 299 (3d Cir. 2001) (holding that 236(c) of the INA improperly deprived the subject respondent his constitutional due process rights).

The INS makes the initial custody determination, either setting a bond amount or finding that the alien is a flight risk and/or danger to the community and holding that bond be denied. If the alien remains in INS custody, he may apply to the Immigration Judge for a change in his custody status a t any time before his removal order becomes administratively final. Immigration judges do not have the authority to conduct bond redeterminations for arriving aliens, which includes aliens paroled into the United States, certain criminal aliens, and aliens charged with a terrorism ground of removal. Bond decisions are subject to appeal to the Board of Immigration Appeals, the appellate body for the Immigration Court. The INS has the ability to stay the bond decision of an Immigration Judge until an appellate decision can be rendered where the INS initially set a bond at $10,000 or more.

The Immigration Judge's decision on bond need only be based upon "information" provided by the alien or the INS, rather than the traditional requirement of evidence. The INS attorney may simply narrate relevant factors without witnesses or introducing documentary evidence.

One purpose of the working group was to gather evidence that could be used in the bond and removal hearing. Because of the significance of the PENTTBOM cases, affidavits were prepared for the hearings and signed by senior FBI agents. Although the affidavits were as specific as possible, the group is mindful of revealing too much information that might jeopardize the investigation, disclose a confidential source, or otherwise be detrimental to the case. In addition, the investigation is in the developmental and initial stages. Therefore, it is difficult to obtain all of the facts for the hearings .

The attack on America resulted in several new amendments in the law to combat terrorism. The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA Patriot Act), Pub.

L. No. 107-56, 115 Stat. 272 (2001), was passed in response to the September 11 attacks. The USA Patriot Act expanded the terrorism grounds of inadmissibility in 212(a)(3)(B) and renders inadmissible:
  • a representative of a political, social or other similar group whose endorsement of acts of terrorist activity the Secretary of State has determined undermines United States efforts to reduce or eliminate terrorist activities;
  • an individual who has used his or her position of prominence within any country to endorse or espouse terrorist activity, or persuade others to support terrorist activity or a foreign terrorist organization, in a way that the Secretary of State has determined undermines United States efforts to reduce or eliminate terrorist activities; and
  • the spouse or child of an alien inadmissible under this section, if the activity that rendered the alien inadmissible occurred within the last five years.
The Patriot Act also expanded the definition of "terrorist activity." Another amendment grants the Attorney General or the Commissioner of the INS authority to certify cases of aliens if they are described in national security or terrorism grounds of removal and allows them to be held for up to seven days before charging the alien criminally or placing them in removal proceedings. Effective September 17, 2001, the period of time in which the INS must make custody and charging determinations was extended from twenty-four hours after arrest to forty-eight hours, unless voluntary departure is granted, or a "reasonable period of time" in the event of emergency or other extraordinary circumstances. This open-ended provision was implemented in order to provide more time to establish identity, check domestic, foreign and international databases, and liaise with law enforcement in the United States and abroad. The amendments are a great addition to the counter-terrorism measures already in place.

However, the best way to combat terrorist activity is intelligence. A battle is lost every time a terrorist attack occurs. The object is not simply to arrest and ultimately convict those responsible for the terrorist activity. The object is to stop acts of terrorism before they occur, even if the effort does not result in a conviction. Arresting terrorists disrupts terrorist networks. Therefore, the INS, FBI, and other law enforcement agencies need to continue to coordinate their efforts in the investigation of individuals suspected of terrorist activity.

[Editor's Note: This article was obtained from the United States Attorneys' Bulletin]


About The Author

Daryl F. Bloom has served as an Assistant District Counsel for the Immigration and Naturalization Service for seven years after being hired through the Attorney General's Honors Program. Mr. Bloom is currently a designated "special interest" and terrorist related case attorney for the Philadelphia District and his current duty station is the York Field Office in York, Pennsylvania.


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.


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