International Aspects Of Criminal Immigration Enforcement
A Taiwanese "snakehead" (slang for alien smuggler) brings boatloads of undocumented migrants from China to Guatemala, holding them hostage before arranging fu rther passage to Texas. An Iranian national based in Ecuador smuggles Middle Easterners into the United States by air, using stolen European passports. A Salvadoran smuggling organization trucks hundreds of Central Americans, including many young children, across three countries under harsh conditions en route to California. These are examples of the types of international smuggling organizations that target the United States as a favored destination of illegal aliens. Organized alien smuggling threatens to undermine the sovereignty and security of transit and destination countries alike. Frequently, the health and safety of migrants are threatened as well. The phenomenon of international alien smuggling also poses complex challenges to the law enforcement and intelligence communities. The purpose of this article is threefold:
Prior to the 1990s, prosecution of alien smuggling and other immigration offenses was not perceived, on a national level, to be a high law enforcement priority. Criminal enforcement of immigration laws took a back seat to other concerns, including organized crime and racketeering, narcotics, public corruption, and white collar crime. Mass migration incidents involving Cuba and Haiti, for example, the 1980 Cuban "Mariel Boatlift," created major immigration enforcement problems, but were regarded mainly as civil or administrative in nature.
A series of high-profile, maritime alien smuggling episodes involving migrants from the People's Republic of China, however, captured the attention of both the government and the general public. Between 1991 and mid-1993, maritime smuggling incidents involving Chinese migrants gave rise to at least a dozen federal criminal prosecutions. Perhaps the incident that focused the Department of Justice's (Department) attention on alien smuggling as a major criminal law enforcement problem was the June 6, 1993 tragedy in which the M/V Golden Venture, carrying approximately 300 illegal Chinese migrants, ran aground near a beach in Queens, New York. Ten migrants drowned as they attempted to swim ashore. One day later, in a separate incident, New York City police rescued thirteen illegal migrants from China who were being held captive by suspected gang members, pending payment of smuggling fees.
Our experience with the Chinese boat cases suggested that the character of alien smuggling had changed. Once regarded as the province of smalltime criminal entrepreneurs, alien smuggling had become a significant organized criminal activity that generated enormous sums of money with little risk to smugglers. It became apparent that stronger laws were needed to increase penalties and provide adequate investigative and prosecutorial tools to combat this conduct. Over several years, the Department sought, and Congress enacted, legislation that significantly enhances our ability to enforce criminal immigration laws.
The statutory maximum penalties for alien smuggling, passport fraud, visa fraud, and related offenses were increased. In addition, the United States Sentencing Commission increased the Guidelines applicable to these offenses. Alien smuggling-related offenses were added to the list of crimes for which court-authorized interception of wire, oral, or electronic communications may be obtained. (18 U.S.C. § 2516). The same crimes were added to the list of Racketeer Influenced and Corrupt Organizations (RICO) predicate offenses. (18 U.S.C. § 1961(1)). These offenses also come within the definition of specified unlawful activity (SUA) for purposes of the money laundering statute. (18 U.S.C. § 1956). Moreover, these offenses are now within the scope of the civil and criminal forfeiture statutes. (18 U.S.C. §§ 981, 982). Finally, in connection with undercover investigations, Congress increased authority to use certain practices, including operating businesses. (8 U.S.C. § 1363a).
Since 9/11, there has been increased recognition that immigration issues are part of the fight against terrorism, both in terms of using immigration prosecutions as a tool against suspected terrorists and, more broadly, in terms of ensuring that United States authorities know who is entering the country. As part of the ongoing post-9/11 review, laws, practices, and policies, are being reevaluated.
Further, as will be discussed more specifically in the context of particular investigations, other countries are increasingly willing to cooperate with the United States in immigration-related investigations and prosecutions. Informal methods of bilateral law enforcement cooperation, including information sharing, targeting, investigating, and expelling wanted persons to the United States, and permitting United States law enforcement to operate undercover in foreign territory, have led to the disruption or dismantling of a large number of smuggling organizations. Formal cooperation, including the availability of extradition for alien smuggling and related offenses, is increasing as well.
III. Interagency and international cooperation
A. Framework for international cooperation
The negative impact caused by organized alien smuggling is not unique to the United States experience. Other destination countries, among them Canada, Australia, the United Kingdom, and Italy, have identified alien smuggling as a potential threat to their national security. Many countries that are used by smuggling organizations primarily as transit points have become alarmed as well. Enlisting cooperation from a third category of countries, the so-called "sending states," to combat international alien smuggling is proving to be more difficult. Certain sending states reap significant financial benefits from emigration through the remittance of money by their nationals living abroad. Other countries use emigration as a political safety valve. Some of the countries that traditionally have not seen illegal migration in negative terms, however, are becoming cognizant of the problems caused by smuggling organizations, including corruption, erosion of the rule of law, and physical harm to migrants. In November 2000, the United Nations concluded an important new multilateral law enforcement treaty. The United Nations Convention against Transnational Organized Crime (TOC) is designed to promote international cooperation by defining terms such as "organized criminal group," and requiring parties to criminalize certain conduct. Specifically, parties must criminalize participation in an organized criminal group, money laundering, corruption, and obstruction of justice.
TOC has three optional protocols:
The TOC become activated ninety days after the fortieth country has deposited its ratification with the United Nations. The Smuggling Protocol also requires forty ratifications, but cannot enter into force prior to the effective date of the main convention. (Presently, approximately thirty-three countries have ratified or acceded to the main convention, and approximately twenty-one have done so with respect to the Smuggling Protocol.) The Smuggling Protocol is significant in that it will require parties to criminalize alien smuggling, document fraud, and related conduct, at least insofar as such acts are committed for gain by organized criminal groups. In conjunction with the main convention, the Smuggling Protocol should bolster longstanding efforts by the United States to encourage other countries to extradite fugitives who are accused of alien smuggling and related offenses. For more than a decade, the United States Government has sought to ensure that immigration crimes and related offenses, such as document fraud, are deemed to be extraditable offenses under new bilateral extradition treaties. In addition, the Smuggling Protocol will provide an international framework for cooperation in combating the smuggling of migrants by sea.
B. The United States approach to maritime interdiction of illegal aliens
For many years, aliens from Cuba, Haiti, the Dominican Republic, the Bahamas, and other Carribean countries, have used maritime smuggling routes to enter the United States illegally. Increasingly, aliens from other parts of the world have been availing themselves of the same smuggling routes and services. The primary destinations for these smuggling activities have been, and continue to be, south Florida, Puerto Rico, and the United States Virgin Islands. With the proliferation of the smuggling of Chinese nationals in the early 1990s, the preferred destinations included ports on both the east and west coasts of the United States, as well as Hawaii and Guam. On June 18, 1993, just twelve days after the M/V Golden Venture episode, the government's policy with respect to the problem of alien smuggling was addressed by a Presidential Directive.
Presidential Decision Directive 9 (PDD-9) noted that the recent increase in Asian criminal syndicate smuggling of Chinese nationals illegally into the United States is a matter of serious concern. Accordingly, the following alien smuggling policy was adopted and, to a substantial degree, this policy remains in effect today.
The U.S. government will take the necessary measures to preempt, interdict and deter alien smuggling into the U.S. Our efforts will focus on disrupting and dismantling the criminal networks which traffic in illegal aliens. We will deal with the problem at its source, in transit, at our borders and within the U.S. We will attempt to interdict and hold smuggled aliens as far as possible from the U.S. border and to repatriate them when appropriate. We will seek tougher criminal penalties both at home and abroad for alien smugglers. We will seek to process smuggled aliens as quickly as possible. At the same time, we will also attempt to ensure that smuggled aliens detained as a result of U.S. enforcement actions, whether in the U.S. or abroad, are fairly assessed and/or screened by appropriate authorities to ensure protection of bonafide refugees. (emphasis added) WEEKLY COMP. PRES. DOC., Alien Smuggling, (June 1993).
As the primary maritime law enforcement agency, the United States Coast Guard has responsibility for enforcing immigration laws at sea. The Coast Guard conducts patrols and coordinates with other components of the Department of Homeland Security (DHS), the Department, other federal agencies, and foreign countries, to interdict undocumented migrants at sea before they reach the United States, its territories, and possessions. Because migrant interdiction at sea may adversely affect foreign relations, interdiction operations often require consultation with interested federal agencies. Such interagency consultations are conducted pursuant to another Presidential Directive (January 19, 1978), and are generally referred to as the "PD-27 process." This process imposes procedures on federal agencies for dealing with various types of nonmilitary incidents that could have an adverse effect on United States foreign relations. Typically, these situations concern foreign-flagged vessels involved in alien or drug smuggling. In practice, the PD-27 process involves interagency telephone conferences convened at the agency headquarters level for proposing courses of action, and obtaining interagency concurrence and coordination. WEEKLY COMP. PRES. DOC., Procedures for Dealing with Non-military Incidents (Jan. 1978). Maritime migrant smuggling often involves foreign-flagged vessels that are overcrowded and unseaworthy. In these situations, the Coast Guard's initial intervention may be necessary simply to ensure migrant safety. If the available facts indicate that a violation of our immigration laws is occurring, the Coast Guard, through the PD-27 process, will seek interagency consensus on a course of action. Typically, the first step will involve a diplomatic approach to the flag country, seeking authority to board the vessel and investigate.
If flag-country authorization is obtained, and a determination made that the vessel is involved in alien smuggling, the resulting course of action will depend on the particular circumstances in each case. For example, is the flag state willing and able to accept responsibility for the vessel and the migrants? Can the vessel be diverted to a third country from which the migrants can be repatriated to their countries of origin? Have any of the migrants expressed protection concerns so as to require preliminary screening interviews by asylum officers? Has there been a violation of our immigration laws that merits prosecution? The decision whether to pursue a criminal prosecution often depends on investigative interviews conducted by government immigration officers and attorneys on board the smuggling vessel or in foreign countries. These interviews identify the targets of the investigation and determine which migrants may be suitable to be brought into the United States as material witnesses. When a decision to prosecute is made, venue for the offense often is governed by 18 U.S.C. § 3238 (offenses not committed in any district). In some cases, the district where the defendant is first brought will control. In others, venue will be in the District of Columbia.
C. International investigative resources
One difficulty often encountered in international smuggling and document fraud investigations is that the major targets may reside outside the United States. Complicating m atters further is the fact that even large-scale alien smugglers tend to operate through loose networks of affiliates that rarely fit traditional hierarchical models of organized crime.
In order to develop prosecutable criminal cases against principals in international alien smuggling organizations, the United States must have an effective investigative capability in various parts of the world. Prosecutors should be aware of the investigative resources that are available for this purpose. Exact capabilities will vary by country, but United States law enforcement agents and prosecutors stationed at United States embassies and consulates often have excellent working relationships with their counterparts. Frequently, United States law enforcement personnel posted abroad can obtain information or evidence informally. If formal mutual assistance is needed, for example, if the evidence was not obtained in an admissible form, the information or evidence gathered informally may provide the basis for drafting a formal request. Circumstances and practices differ from country to country. Consult the Office of International Affairs (OIA) for specific advice regarding informal and formal mutual legal assistance, as well as issues regarding extradition and possible alternatives to extradition. Department of Homeland Security On March 1, 2003, the Immigration and Naturalization Service (INS) was abolished and its functions were transferred to the Department of Homeland Security (DHS). The former INS functions have been generally divided among three new bureaus:
At publication time, DHS is in the process of making organizational and policy decisions concerning its allocation of overseas resources. Please note, however, that ICE is primarily responsible for investigating criminal violations of the Immigration and Nationality Act and related provisions of the United States Code. Presently, DHS has three primary international offices, located in Mexico City, Rome, and Bangkok. Each of these offices operate several satellite offices that have enforcement/investigative capability. Currently, the Mexico City office operates satellite offices in Mexico, Guatemala, Ecuador, Cuba, Jamaica, Peru, Panama, Haiti, El Salvador, and Honduras. The Rome office supervises satellite offices in Turkey, Greece, Denmark, Germany, Pakistan, South Africa, the United Kingdom, Spain, R ussia, Kenya, India, and Austria. Satellite offices for the Bangkok District are located in China, Vietnam, Hong Kong, the Philippines, Korea, and Singapore.
Bureau of Diplomatic Security
The Bureau of Diplomatic Security (DS) is the security and law enforcement arm of the Department of State. One of its components is the Diplomatic Security Service. Special Agents of DS have concurrent investigative jurisdiction with respect to passport and visa fraud offenses. Each year, DS investigates more than 4,000 passport and visa fraud violations around the world. Many of these investigations are related to other crimes, such as drug trafficking, international organized crime, alien smuggling, and other serious offenses.
Federal Bureau of Investigation Of course, the FBI also has an extensive system of Legal Attachés (Legats), who are located at United States diplomatic posts throughout the world. The FBI is most involved in smuggling and other immigration investigations that appear to relate to national security and organized crime.
IV. Domestic Security Section
The Domestic Security Section (DSS) is the newest of the Criminal Division's component sections. DSS was established in November 2002, and was assigned the functions of the former Alien Smuggling Task Force (ASTF), a Criminal Division entity that was created by the Attorney General in February 2000 for the purpose of ensuring that the Department took a comprehensive approach to the problem of alien smuggling. DSS also was assigned supervisory responsibility for the federal violent crime and immigration crime statutes that previously were assigned to the Terrorism and Violent Crime Section (TVCS). (The remaining part of TVCS was then renamed the Counter Terrorism Section, to reflect its mission concerning terrorism-related investigations, prosecutions, and policy.)
The merger of the Criminal Division's responsibilities for immigration crimes and federal violent crimes into a single section permits DSS to focus on investigations, prosecutions, and policy issues, that have a direct bearing on the domestic security of the United States. (DSS responsibility concerning violent crimes unrelated to immigration is beyond the scope of this article.) With respect to alien smuggling, DSS is involved in policy, operational, and training matters. The section works with all pertinent components of the Department, as well as other Executive Branch agencies, including the Department of Homeland Security, the National Security Counsel, the Department of State, and the intelligence community. DSS also provides a central point of contact for United States Attorneys' Offices (USAOs) that handle alien smuggling cases. The section provides legal advice, coordinates multidistrict cases, acts as liaison between USAOs and other parts of the government, litigates cases on its own, and provides litigation assistance to USAOs in appropriate cases, and within resource limits.
DSS' responsibility with respect to immigration enforcement has a significant interagency and international dimension. For example, DSS serves as the cochair of the Interagency Working Group on Smuggling and Trafficking (IWG) under the auspices of the National Security Council. The IWG, in turn, has worked with enforcement and intelligence agencies on various projects, including efforts against major alien smugglers residing abroad.
In the aftermath of the 9/11 terrorist attacks, DSS has worked with USAOs, INS and its successor agencies at DHS, the FBI, the United States Coast Guard, and the intelligence community in an effort to identify and target organizations and networks that smuggle aliens deemed to present special security threats to the United States.
Some recent cases that DSS has prosecuted jointly with various USAOs are described below. United States v. Feng, Crim. No. H-01-544 (S.D. Tx. 2001) Feng Kan-Yen, a/k/a Kenny Feng, was a Taiwanese snakehead whose organization assisted in smuggling United States-bound, undocumented Chinese migrants to Latin America by boat. Feng, in affiliation with other smugglers, transported migrants from China to the coast of Guatemala, where the human cargo would be offloaded and held in Guatemalan safe houses pending payment of smuggling fees. Those who paid the demanded fee would be referred to other smugglers who specialized in overland travel to the United States. Those who did not pay risked murkier fates. For example, the family of one female migrant paid $15,000 to have her smuggled into the United States. In 1998, upon her arrival in Guatemala, the woman learned that her fee had skyrocketed to $40,000. Feng held the woman in Guatemala for more than fifteen months. When she still could not pay the higher fee, she was sold to Mexican smugglers, who brought her into Texas. From there, she was delivered to another Taiwanese smuggler named Chen Yung Ming. Still unable to pay the full $40,000, the woman learned that she was to be sold yet again, this time to smugglers in New York City.
In June 1999, in Houston, the victim broke her back while attempting to escape through a second story window. Her cooperation from a hospital bed quickly led to the arrest of Chen Yung Ming and two cohorts, who were indicted on charges of alien smuggling and hostage taking. Chen Yung Ming was convicted of hostage taking and sentenced to were convicted of alien smuggling and received lesser sentences.
The investigation continued and ultimately Feng Kan-Yen was expelled by El Salvador, one of several countries in which he resided. Feng was arrested in Houston, and in 2001, pled guilty to conspiracy to commit hostage-taking. United States v. Jose Delgado-Garcia, Crim. No. 02-293-01 (D.D.C. 2003) In May 2003, four Ecuadorian nationals were convicted for their roles as crewmen on the Jose Alexander II, a fishing vessel of Ecuadorian registry. Spotted by a United States Navy helicopter, the vessel was intercepted in international waters by the United States Coast Guard on June 10, 2002, while transporting almost 200 undocumented Ecuadorian migrants. The migrants were being smuggled to the United States, for which each had paid a fee of up to $8,500.
The vessel was dangerously overcrowded and there were no medical supplies or lifesaving equipment on board. The food and water available to its passengers were insufficient for the journey. Passengers had access to one toilet, and conditions on the boat during its fifteen days at sea quickly became unsanitary. Witnesses described perilous encounters at sea that instilled fear and near panic among the passengers. On one occasion, a huge whale circled their overcrowded and unstable vessel several times. Near the Galapagos Islands, the captain scared off approaching pirates by firing his gun.
When located, the boat was en route to a location off the coast of Guatemala to rendezvous with smaller vessels that were supposed to transport the migrants to Guatemalan territory. From there, the migrants were to be picked up by other associates of the smuggling operation, in order to continue their journey over land through Mexico to the United States. The captain of the vessel, Jose Delgado-Garcia, received a mandatory minimum sentence of five years. His three codefendants, who cooperated, received lesser sentences. United States v. Assadi, 223 F. Supp. 2d 208 (D.D.C. 2002) Iranian national Mohammed Hussein Assadi was convicted in October 2002 of conspiracy to commit alien smuggling and encouraging or inducing aliens to come to the United States. Assadi's specialty was arranging the smuggling of aliens from the Middle East through Latin America into the United States via commercial airline flights. Assadi's organization would obtain stolen, photo-substituted European passports for use by his customers. Often, these passports had been issued by countries whose nationals did not require United States entry visas. W hen necessary, Assadi would go so far as to alter the appearance and mannerisms of his customers to make them appear more European.
Like many alien smugglers, Assadi used bribery to ensure that local airport and immigration officials did not prevent the departure of his customers aboard flights to the United States. The aliens were instructed by Assadi to destroy travel documents during flight, to make themselves known to immigration officials upon arrival in the United States, and to make an immediate request for asylum. Assadi exploited the common knowledge that lack of sufficient detention space would result in the release of most of his clients during the asylum review process, thereby achieving his objective of getting them into the country.
As a result of good intelligence and cooperation between the United States and foreign authorities, A ssadi was arrested and ultimately expelled by Colombia to Iran. During a scheduled stop in Miami, he was arrested in connection with the indictment that had been filed earlier that day. United States v. Parada Campos, Crim. No. 02-305 (D.D.C. 2003) Berta Rosa Parada Campos headed an alien smuggling organization that operated in a number of countries, including her native El Salvador. The Campos organization moved hundreds of aliens, including many children, from Central America to the United States. Most of her customers were from El Salvador, Honduras, and Guatemala. The organization would transport aliens in stages, from El Salvador to Guatemala, from Guatemala to Mexico, and finally from Mexico to the United States.
The typical smuggling fee was $5,000 per person. Aliens were transported in various types of motor vehicles under dangerous conditions, often with inadequate food or water. Further, the organization smuggled large numbers of unaccompanied minors, some as young as five years old. Ultimately, as a result of cooperation between the United States and several Central American countries, Campos and her key associates were detained in Central America and the United States. Some members of the organization were expelled from the arresting country and then arrested in the United States. Cooperation between countries continued during the investigation and prosecution, including taking measures to protect threatened witnesses. Ultimately, Campos and several coconspirators pled guilty in the United States to alien smuggling and related charges. El Salvador is continuing to prosecute remaining members of the organization of whom we could not obtain custody. V. Conclusion
In recent years, the fight against organized international alien smuggling has emerged as a national law enforcement priority. The terrorist attacks of 9/11 underscored the need to redouble efforts to secure our borders. Many countries other than the United States have recognized similar needs, and there are ongoing efforts to improve international cooperation against alien smuggling and related offenses. As part of the post-9/11 reorganization of the Department of Justice, the Criminal Division has created the Domestic Security Section. Part of the DSS mission is to coordinate the Department's efforts to combat alien smuggling and related crimes. Alien smuggling networks are, by definition, international in scope. Wherever possible, we should attack all parts of the network, not just those parts operating in the United States. The Domestic Security Section stands ready to provide a range of assistance, including assisting with informal requests for information or contacts that might help a particular case, providing legal analysis, or providing litigation assistance in appropriate situations. DSS also is eager to hear any suggestions, problems, or successes, encountered by United States Attorneys' Offices.
This article originally appeared in the September 2003 issue of the United States Attorneys' Bulletin.
Michael Surgalla has been an attorney with the immigration component of the Domestic Security Section (formerly, the Alien Smuggling Task Force) since 2000. He has worked for the Department of Justice since 1987, serving first as a trial attorney in the New York District of the Immigration and Naturalization Service. In 1989, he joined the Criminal Division’s Office of International Affairs, where he specialized in Asian organized crime matters and participated in the negotiation of seven law enforcement treaties and executive agreements.
Arthur Norton has been employed by the Department of Justice since 1970. From 1970 to 1974, he was a Special Agent with the FBI. Since 1974, he has worked as an attorney in the Department’s Criminal Division. Currently, he is assigned to the Criminal Division’s Domestic Security Section.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.