[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]
SECURE VISAS ACT
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON
IMMIGRATION POLICY AND ENFORCEMENT
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED TWELFTH CONGRESS
FIRST SESSION
ON
H.R. 1741
__________
MAY 11, 2011
__________
Serial No. 112-39
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
________
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COMMITTEE ON THE JUDICIARY
LAMAR SMITH, Texas, Chairman
F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan
Wisconsin HOWARD L. BERMAN, California
HOWARD COBLE, North Carolina JERROLD NADLER, New York
ELTON GALLEGLY, California ROBERT C. ``BOBBY'' SCOTT,
BOB GOODLATTE, Virginia Virginia
DANIEL E. LUNGREN, California MELVIN L. WATT, North Carolina
STEVE CHABOT, Ohio ZOE LOFGREN, California
DARRELL E. ISSA, California SHEILA JACKSON LEE, Texas
MIKE PENCE, Indiana MAXINE WATERS, California
J. RANDY FORBES, Virginia STEVE COHEN, Tennessee
STEVE KING, Iowa HENRY C. ``HANK'' JOHNSON, Jr.,
TRENT FRANKS, Arizona Georgia
LOUIE GOHMERT, Texas PEDRO R. PIERLUISI, Puerto Rico
JIM JORDAN, Ohio MIKE QUIGLEY, Illinois
TED POE, Texas JUDY CHU, California
JASON CHAFFETZ, Utah TED DEUTCH, Florida
TIM GRIFFIN, Arkansas LINDA T. SANCHEZ, California
TOM MARINO, Pennsylvania [Vacant]
TREY GOWDY, South Carolina
DENNIS ROSS, Florida
SANDY ADAMS, Florida
BEN QUAYLE, Arizona
[Vacant]
Sean McLaughlin, Majority Chief of Staff and General Counsel
Perry Apelbaum, Minority Staff Director and Chief Counsel
------
Subcommittee on Immigration Policy and Enforcement
ELTON GALLEGLY, California, Chairman
STEVE KING, Iowa, Vice-Chairman
DANIEL E. LUNGREN, California ZOE LOFGREN, California
LOUIE GOHMERT, Texas SHEILA JACKSON LEE, Texas
TED POE, Texas MAXINE WATERS, California
TREY GOWDY, South Carolina PEDRO R. PIERLUISI, Puerto Rico
DENNIS ROSS, Florida
George Fishman, Chief Counsel
David Shahoulian, Minority Counsel
C O N T E N T S
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MAY 11, 2011
Page
THE BILL
H.R. 1741, the ``Secure Visas Act''.............................. 4
OPENING STATEMENTS
The Honorable Elton Gallegly, a Representative in Congress from
the State of California, and Chairman, Subcommittee on
Immigration Policy and Enforcement............................. 1
The Honorable Zoe Lofgren, a Representative in Congress from the
State of California, and Ranking Member, Subcommittee on
Immigration Policy and Enforcement............................. 11
The Honorable Lamar Smith, a Representative in Congress from the
State of Texas, and Chairman, Committee on the Judiciary....... 15
WITNESSES
Gary L. Cote, Acting Deputy Assistant Director, Office of
International Affairs, U.S. Immigration and Customs
Enforcement, U.S. Department of Homeland Security
Oral Testimony................................................. 18
Prepared Statement............................................. 20
David T. Donahue, Deputy Assistant Secretary for Visa Services,
Bureau of Consular Affairs, U.S. Department of State
Oral Testimony................................................. 27
Prepared Statement............................................. 29
Janice L. Kephart, Director of National Security Policy, Center
for Immigration Studies
Oral Testimony................................................. 38
Prepared Statement............................................. 40
Edward Alden, Bernard L. Schwartz Senior Fellow, Council on
Foreign Relations
Oral Testimony................................................. 50
Prepared Statement............................................. 52
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Material submitted by the Honorable Zoe Lofgren, a Representative
in Congress from the State of California, and Ranking Member,
Subcommittee on Immigration Policy and Enforcement............. 12
Material submitted by the Honorable Sheila Jackson Lee, a
Representative in Congress from the State of Texas, and Member,
Subcommittee on Immigration Policy and Enforcement............. 67
APPENDIX
Material Submitted for the Hearing Record
Prepared Statement of the National Immigration Forum............. 70
SECURE VISAS ACT
----------
WEDNESDAY, MAY 11, 2011
House of Representatives,
Subcommittee on Immigration
Policy and Enforcement,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to call, at 3:25 p.m., in
room 2141, Rayburn Office Building, the Honorable Elton
Gallegly (Chairman of the Subcommittee) presiding.
Present: Representatives Gallegly, Smith, Ross, Lofgren,
and Jackson Lee.
Staff present: (Majority) Dimple Shah, Counsel; Marian
White, Clerk; and Tom Jawetz, Minority Counsel.
Mr. Gallegly. I apologize for the confusion around here. We
normally like to have our trains run on time, but as you know,
the bells just went off and we have a series of eight votes?
Seven or eight votes. And in the interest of time, I am going
to go over and start my voting, and then as soon as the voting
series is over, we will reconvene and we will get on with this
very important hearing.
I appreciate your being here. I appreciate your patience,
but some things are above my pay grade. Thank you very much.
[Recess.]
Mr. Gallegly. I call the Immigration Subcommittee hearing
to order.
First of all, I want to apologize to our witnesses for the
delay. As I said before we left, there was a series of votes
and some things are beyond our control. And I appreciate your
patience and I appreciate your being here today.
The Departments of State and Homeland Security both have
responsibility when it comes to admitting foreign visitors to
the United States. The Department of State Consular Affairs is
responsible for issuing visas, while Immigration and Customs
Enforcement in DHS operates the Visa Security Program in
designated, high-risk consular posts overseas.
Following the tragic events of September 11th, 2001, there
was a great deal of discussion in Congress with respect to
moving the visa issuance responsibilities from the State
Department to DHS, the objective to treat visa issuance as a
law enforcement and national security function, rather than a
foreign relations tool. Rather than transferring these
functions to DHS in their entirety, the Homeland Security Act
of 2002 split the visa functions. DHS now writes the
regulations regarding visa issuance and assigns staff to
consular posts abroad as part of the Visa Security Program to
conduct investigations on visa applications. However, the State
Department still has the responsibility to ultimately issue the
visas.
Unfortunately, the Visa Security Program has not expanded
nearly as quickly as expected. The Government Accountability
Office reports that ICE has not implemented its 5-year
expansion plan or even covered all high-risk posts. Therefore,
Chairman Smith has introduced legislation, The Secure Visas
Act, that requires DHS to maintain Visa Security Units, known
as VSUs, at the 19 consular posts that already have them and
expand these units to the posts that ICE has designated as
``highest-risk.'' Some of these ``highest-risk'' countries
include Yemen, Saudi Arabia, Syria, Morocco, Lebanon, and
Algeria. VSU's are critical for national security. At VSU-
staffed consular posts, 100 percent of applicants receive
additional screening. At non-VSU posts, fewer than 2 percent of
the applicants get extra screening.
The actions of Omar Farouk Abdulmutallab, who attempted to
blow up Northwest Airlines flight 253 and kill over 200
innocent people on December 25, 2009, refocused attention on
the responsibilities of the Departments of State and Homeland
Security with respect to visa revocation.
Abdulmutallab was traveling on a valid visa issued to him
in June of 2008. The State Department acknowledged that his
father came into the U.S. embassy in Abuja, Nigeria on November
19, 2009 and told officials with the State Department and the
CIA that his son had vanished and expressed concern that he had
``fallen under the influence of religious extremists in
Yemen.'' According to the news reports, the father's visit with
the U.S. authorities was arranged by Nigerian intelligence
officials, who his father had contacted after receiving a call
from his son that made him fear that his son might be planning
a suicide mission in Yemen.
Despite the father's visit and the warning he conveyed, the
State Department made no effort to revoke the visa. The case of
Abdulmutallab demonstrates that clearly something went
drastically wrong.
In addition to expanding the Visa Security Program,
Chairman Smith's bill provides law enforcement with the tools
it needs to revoke visas by clarifying that the Secretary of
DHS has the explicit power to refuse or revoke a visa when the
Secretary determines that such refusal for revocation is
necessary or advisable in the security interests of the United
States.
Under current law, the DHS Secretary can ask the State
Department to revoke a visa. The DHS Secretary, however, only
exercised his revocation once in 2005. The State Department is
the entity that normally revokes visas.
Furthermore, this bill makes clear the revocation of a visa
is not subject to judicial review. H.R. 1741 simply applies the
same review standards to visa revocations that is currently
applied to visa denials. Ultimately, this bill provides DHS
with the necessary tools to prevent potential terrorists or
other criminals from entering our country and doing our
citizens great harm.
At this point, I would yield to the gentlelady from
California, the Ranking Member of the Subcommittee, Ms.
Lofgren.
The bill, H.R. 1741, follows:]
__________
Ms. Lofgren. Thank you, Mr. Chairman. This hearing touches
on many important issues and I am looking forward to hearing
the testimony of each of the witnesses.
Although I apologized to each of them individually, I share
in your apologies for the late start. It was unavoidable. As we
were casting those votes, I was thinking of you sitting here in
the room.
Our embassies and consulates abroad really represent our
face to the world and serve many critical functions, and the
visa adjudication process is really important to advancing
America's interests in legitimate travel, trade promotion, and
educational exchanges, as well as business. It also plays an
important role in keeping us safe by identifying people who
would do us harm before they ever arrive at ports of entry, and
meeting all of these goals is important to ensuring our
security.
Now, as the Chairman has said, when Congress created the
Department of Homeland Security, there was what I call a robust
discussion about how involved the new agency should be in
setting visa policy and handling the day-to-day business of
adjudicating visa applications overseas. And the current act
gives DHS authority over visa issuance, regulations, and
authorizes the Secretary to refuse visas based on current law
by working through the consular officers. And it also created
the Visa Security Program.
Recognizing the State Department's expertise in foreign
policy matters, the act retained the core functions of consular
officers, and one of the most important functions they perform
is adjudicating the very large number of visa applications that
are received every day. Under the current system, consular
officers collect biographic and biometric information, run the
names, fingerprints, digital photographs through a variety of
security and background checks, and ultimately the consular
officer makes a decision regarding visa eligibility. When a
case triggers national security or other concerns, it is
forwarded to Washington, D.C. for a security advisory opinion.
Even without red flags, broad categories of cases are routinely
submitted for SAO's to undergo additional checks by
intelligence and law enforcement agencies, and then any hits
are manually reviewed by an analyst.
According to the State Department, this process took place
300,000 times last year. Unfortunately, the number of false
positives that were encountered is very high. About 98 percent
of the time a case was referred for an SAO, the analyst
concludes that the law enforcement or security-related
information in the system had nothing to do with the person who
was applying for the visa. Because surnames in many parts of
the world are similar or identical, mistakes are regularly
made.
Now, the Homeland Security Act, mentioned by the Chairman,
tried to lay out a framework that would be workable but left
the agencies to fill out the details. We had an opportunity to
check with General Colin Powell, hoping we might actually get
him to be a witness here at this hearing, but he was not
available this week. But he talked about really the personal
negotiations that went on between him as Secretary of State and
Homeland Security Secretary Tom Ridge, and they really reached
a conclusion that I think in many ways has worked, maybe needs
some improvement, but the shared responsibilities mean that
each agency now plays a significant role in determining who
comes to the U.S., with State principally in charge of the visa
process, but DHS and Customs and Border Protection as final
gatekeepers determining who is permitted to board planes headed
for the country, who is permitted to walk through the ports of
entry.
Now, I am interested in hearing the witnesses' views on how
this is working, whether we can adequately meet our goals while
facilitating legitimate trade and travel and make this work in
a very seamless and smooth way.
At the outset, I will say on the bill that the Chairman of
the full Committee has introduced that I have a concern about
the judicial review provision. It is already the case that visa
revocations or denials made abroad are insulated from judicial
review, and I for one would not change that. But this bill
would eliminate judicial review for persons who are in this
country and are placed in removal proceedings. That means that
people who have resided lawfully in the United States for many
years, who could have U.S. citizen spouses and children, could
face the prospect of being permanently separated from their
families without the opportunity for judicial review.
The Supreme Court has long recognized that the writ of
habeas corpus guaranteed by the Suspension Clause of the
Constitution provides a means by which to test the legality of
executive detention. The Great Writ has also been used
throughout our history to challenge the legality of deportation
and exclusion proceedings. And this has been recognized by the
Congress in the Intelligence Reform and Terrorism Prevention
Act of 2004 and again in the REAL ID Act in 2005. And I think
the bill as written would fail were it to be changed on
constitutional grounds, and I thought it important to raise
that at an early stage of the proceedings.
And I would also, Mr. Chairman, ask unanimous consent to
submit for the record a letter from the ACLU regarding this
point, as well as a statement from Senator Menendez.
Mr. Gallegly. Without objection.
[The information referred to follows:]
__________
Ms. Lofgren. I yield back.
Mr. Gallegly. I thank the gentlelady. At this time, I will
recognize the Chairman of the full Committee and the sponsor of
the pending legislation, my good friend from Texas, Mr. Smith.
Mr. Smith. Thank you, Mr. Chairman.
In response to what the Ranking Member just said, I trust
that that means she supports 95 or 96 percent of the bill, and
I take that as a good sign. We can talk about the judicial
review----
Ms. Lofgren. If the gentleman would yield, I would not want
to give that misimpression, but I thank the gentleman for his
comment.
Mr. Smith. I was going by the number of words you might
have disagreed with.
But in any case, the broader point is that visa revocation
is a discretionary decision. Numerous circuit courts have
concluded that visa revocations are in fact a purely
discretionary power held by the Secretary of DHS and therefore
are not subject to any constitutionally mandated judicial
review. So we might argue about the pros and cons. I just don't
want to leave the impression that somehow it is
constitutionally mandated.
Mr. Chairman, in any case, in light of Osama bin Laden's
death, some believe the ``war on terror'' has ended, and that
the threat posed by al Qaeda and other terrorist groups has
diminished. This is far from the truth. In the words of bin
Laden himself, ``I can be eliminated, but not my mission.''
The 19 hijackers involved in the September 11, 2001
terrorist attacks applied for 23 visas and obtained 22 out of
23 visas. These terrorists began the process of obtaining visas
almost two and a half years before the attack. At the time,
consular officers were unaware of the potential indicators of a
security threat posed by these hijackers.
Recent events underscore the need to strengthen and improve
visa security. We know terrorists use loopholes in our
immigration system to enter the United States.
After receiving a B2 tourist visa, Omar Farouk
Abdulmutallab attempted to blow up a plane on its way to
Detroit on Christmas Day 2009. Thankfully, his attempt was
thwarted and hundreds of innocent lives were spared.
Although he failed in his attempt to murder innocent
people, Abdulmutallab should never have been allowed to board
the plane to Detroit. Despite warnings from Abdulmutallab's
father about the son's possible Muslim radicalization, the U.S.
visa issued to him in 2008 was neither identified nor revoked.
More recently, Khalid Aldawsari, a 20-year-old who entered
the United States from Saudi Arabia on a student visa, was
arrested on February 24, 2011 on terrorism charges, including
attempted use of weapons of mass destruction. While Aldawsari
was screened by the Visa Security Units, he had never come to
the attention of law enforcement before because he was a ``lone
wolf'' actor and he never demonstrated any harmful or criminal
tendencies.
Authorities only learned of Aldawsari February 1, 2011,
when a shipping company and a chemical supplier called
authorities to report a suspicious attempt to purchase a large
quantity of Phenol, a chemical that can be used to make
explosives.
The Homeland Security Act of 2002 authorized the placement
of Department of Homeland Security Visa Security Units at
``highest-risk'' U.S. consular posts. This was an effort to
address lapses in the current system, increase scrutiny of visa
issuance, and prevent terrorists from gaining access to the
United States. Visa security units ensure that thorough
background checks are conducted on all visa applicants, not
just a select few.
The intent of the Visa Security Units is to ensure that
national security, and not meeting the demands of foreign
nationals for visas, is the number one goal of our visa issuing
process. Unfortunately, since 2002, neither the State
Department nor DHS has put a high enough priority on the
establishment of Visa Security Units. Visa security units exist
only in 19 consulates located in 14 countries. Meanwhile, there
are close to 50 countries that have been designated as
``highest-risk.''
Last week, I introduced legislation to make the visa
process more secure. H.R. 1741, the ``Secure Visas Act,''
requires placement of Visa Security Units at all U.S. consular
posts in highest-risk countries such as Algeria, Lebanon, and
Syria.
H.R. 1741 also grants the Department of Homeland Security
Secretary the authority to revoke a visa in cases like that of
the Christmas Day Bomber and to delegate that authority to
appropriate agency officials. These are common-sense steps that
ensure no one who seeks to harm our country is able to enter
and stay in the United States.
In addition to making it harder for terrorists to enter the
U.S., The Secure Visas Act allows U.S. officials to remove
suspected terrorists and others with revoked visas who are
already in the U.S. Under current law, an alien terrorist in
the U.S. whose visa has been revoked can remain in the U.S. to
fight their deportation in Federal court and force the
Government to release classified information. Giving litigation
rights to terrorists makes no sense. The Secure Visas Act
closes this loophole and allows the terrorist to be removed
from American soil without threatening the disclosure of
intelligence sources and methods.
Many national security officials warn of future attacks. We
don't need national security officials to simply predict
attacks. We need them to prevent attacks. That means we must
prevent terrorists from entering this country before they act,
and this legislation allows us to do just that.
Visa security is critical to national security. Terrorists
will continue to enter the U.S. legally if we do not improve
and secure our visa process.
The September 11th hijackers, the Christmas Day Bomber, and
the Texas university student terrorist serve as proof that the
war on terror continues and that radical jihadists are as
committed as ever to killing Americans. America must be equally
committed to stopping them.
Thank you, Mr. Chairman, and I will yield back.
Mr. Gallegly. I thank the gentleman.
Without objection, other Members' opening statements will
be made a part of the record of the hearing.
We have a very distinguished panel of witnesses today. Each
of the witnesses' written statements will be entered into the
record in its entirety. I would ask that each witness summarize
his or her testimony in 5 minutes or less. To help you stay
within the time, there is a little light system down there with
a yellow light that would let you know you have 1 minute
remaining, and then the red light would signal that the 5
minutes has expired. I really appreciate your cooperation on
this so we can get through and have everyone have their
opportunity to ask questions of the witnesses.
Our witnesses today starts with Gary Cote. He serves as the
Acting Deputy Assistant Director for the U.S. Immigration and
Customs Enforcement Office of International Affairs. He is the
former director of the Visa Security Unit within the Office of
International Affairs where he was responsible for managing the
ICE headquarters Visa Security Unit and all foreign ICE Visa
Security Units. Throughout his 37 years in law enforcement, he
has held various high-level positions.
Our second witness is Mr. David Donahue. He serves as the
Deputy Assistant Secretary for Visa Services at the Bureau of
Consular affairs, U.S. Department of State. Prior to this
position, he was the Director of Office Policy coordination and
Public Affairs in the Bureau of Consular Affairs. Mr. Donahue
joined the Foreign Service in 1983 and has held numerous
positions stationed throughout the world. Mr. Donahue graduated
from St. Meinrad College in Indiana.
Ms. Janice Kephart is the Director of National Security
Policy at the Center for Immigration Studies. She previously
served as counsel to the 9/11 Commission. Ms. Kephart received
her bachelor's from Duke University and J.D. from Villanova Law
School.
And our fourth witness today is Mr. Edward Alden. Mr. Alden
is the Bernard L. Schwartz Senior Fellow at the Council on
Foreign Relations. Prior to joining the council, Mr. Alden was
the Washington bureau chief for the Financial Times and also
served as the project director for the independent task force
on U.S. immigration policy. Mr. Alden holds a master's degree
in international relations from the University of California at
Berkeley.
Mr. Cote, we will start with you. Welcome.
TESTIMONY OF GARY L. COTE, ACTING DEPUTY ASSISTANT DIRECTOR,
OFFICE OF INTERNATIONAL AFFAIRS, U.S. IMMIGRATION AND CUSTOMS
ENFORCEMENT, U.S. DEPARTMENT OF HOMELAND SECURITY
Mr. Cote. Thank you, Chairman Gallegly, Chairman Smith,
Ranking Member Lofgren, and distinguished Members of the
Subcommittee.
On behalf of Secretary Napolitano and Assistant Secretary
Morton, thank you for the opportunity to discuss ICE's
international efforts to protect the Nation. Today I will
discuss the important role that the Visa Security Program,
along with the State Department, plays in protecting the
homeland by helping to identify individuals who present a risk
before they can travel to the United States. The Visa Security
Program places DHS law enforcement officers in U.S. embassies
abroad to work with the State Department consular officers and
diplomatic security agents to secure the visa adjudication
process.
As you know, section 428 of the Homeland Security Act of
2002 authorized the Secretary of Homeland Security to
administer and enforce the Immigration and Nationality Act and
other laws relating to visas, refuse and revoke visas for
individual applicants in accordance with the law, assign DHS
officers to diplomatic posts to perform visa security
activities, initiate investigations of visa security-related
matters, and provide advice and training to consular officers.
In short, the Homeland Security Act directed DHS to assist in
the identification of visa applicants who may attempt to enter
the United States for illegitimate purposes, including illegal
immigration, criminal- and terrorist-related activities.
The visa adjudication process is often the first
opportunity to assess whether a potential visitor or immigrant
presents a threat to the United States. The U.S. Government has
long recognized the importance of this function to national
security. DHS regards the visa process as an important part of
its broader security strategy, and the Visa Security Program is
one of several programs focused on minimizing global risks.
DHS does not participate in all visa adjudications. Rather,
DHS becomes a part of the process following initial screening
of an applicant in countries where a Visa Security Unit is
present. The Visa Security Program efforts complement the
consular officer's initial screening. This is accomplished by
conducting targeted, in-depth law enforcement-focused reviews
of individual visa applications and applicants prior to
issuance, as well as recommending refusal or revocation of
applications where warranted.
ICE now has Visa Security Units at 19 high-risk visa
adjudication posts in 15 countries. In fiscal year 2010, ICE
opened offices in four additional locations. Also in fiscal
year 2010, ICE agents screened 815,000 visa applicants at these
19 posts and, in collaboration with their State Department
colleagues, determined that 104,000 required further review.
Following the review of these 104,000 applications, ICE
recommended the refusal of more than 1,300 applicants. In every
instance, the State Department followed the Visa Security Unit
recommendation and refused to issue a visa. Visa Security
Program recommendations have also resulted in State Department
visa revocations.
Effective border security requires broad information
sharing and cooperation among U.S. agencies. In January, ICE
signed a memorandum of understanding outlining roles,
responsibilities, and collaboration between DHS and the State
Department's Bureau of Consular Affairs and the Diplomatic
Security Service. The MOU governs the day-to-day operations of
the Visa Security Units at U.S. embassies and consulates
abroad.
To facilitate information sharing and reduce duplication of
efforts, ICE and the State Department support collaborative
training and orientation prior to overseas deployments. Once
they are deployed to overseas posts, ICE and State Department
personnel work closely together in working groups coordinating
meetings, trainings, briefings, and engage in regular and
timely information sharing.
Under the direction of the Homeland Security Council,
beginning in May 2008, ICE and the State Department
collaborated on the development of the Visa Security Program's
site selection methodology and came to an agreement on current
site selection criteria which is based on risk. The process for
selecting a particular site for a unit begins with the ICE site
selection evaluation, which includes a quantitative analysis of
threats posed by applicants at a particular consular office, as
well as a site visit assessment. The site assessment and
proposal are then entered into the formal nomination process
and, prior to deployment of personnel, must be reviewed and
approved by the chief of mission at a particular post in a
manner consistent with the National Security Directive-38 and
its implementing guidelines.
I see that my time has expired. Thank you for your
opportunity for me to testify today, and I would be willing to
answer any questions that you may have.
[The prepared statement of Mr. Cote follows:]
__________
Mr. Gallegly. Thank you very much, Mr. Cote.
Mr. Donahue?
TESTIMONY OF DAVID T. DONAHUE, DEPUTY ASSISTANT SECRETARY FOR
VISA SERVICES, BUREAU OF CONSULAR AFFAIRS, U.S. DEPARTMENT OF
STATE
Mr. Donahue. I am honored by this opportunity to testify
today on this important topic of close and fruitful cooperation
with our ICE colleagues in our joint efforts to protect our
borders.
The State Department strongly supports the mission and
future of the Visa Security Program, the VSP. We embrace a
layered approach to security screening and believe the VSP
supports the critical role that State Department consular
officers play in securing our borders. The VSP maximizes the
utility of the visa application and interview processes to
detect and combat terrorism, criminality, and other threats to
the United States and the traveling public.
We share visa application information widely with the
interagency group responsible for national security. Robust
sharing of data between agencies is part of the layered
approach to security adopted after 9/11. A complex layered
approach to screening, beginning with biometric and biographic
checks against law enforcement databases, interviews by
consular officers, multiple steps by ICE and U.S. Customs and
Border Protection, and matching of biometrics collected abroad
at the port of entry to confirm the identity and intentions of
those wishing to enter the United States ensure the security of
the visa process. These measures are constantly reviewed and
enhanced as needed. ICE VSP officers assigned to Visa Security
Units abroad provide timely and valuable on-site vetting of
visa applications and other law enforcement support to our
consular officers.
Here in Washington, we work with our VSP colleagues on
issues affecting program operations and on longer-term issues
related to the expansion of the program to select overseas
posts. VSP officers in Washington review our visa databases and
advise posts of emerging information about visa holders. In
addition, we cooperate on the resolution of issues that are
raised as the VSP is expanded to more posts. In January 2011,
we concluded the memorandum of understanding governing VSU-
State Department interactions with visa sections, procedures
for resolving the very few disputed visa cases that emerge from
the VSU review process, and collaboration between ICE-VSU
officers and diplomatic security agents assigned as regional
security officers or assistant regional security officers for
investigations at our consular sections.
The recently released GAO report on VSP operations noted
that visa officers and ICE-VSP officers sometimes consider the
same set of facts and reach different conclusions. In fact, we
work together to resolve those few cases. In the end, there
must be full agreement on any decision since the traveler
cannot travel without a visa and DHS will not permit boarding
of someone who is a security threat for a flight to the United
States.
Let me address the expansion of the VSP which I know is of
keen interest to the Members of this Subcommittee. The
Department works collaboratively with DHS pursuant to the
October 2004 MOU on the administrative aspects of assigning
personnel overseas and the National Security Decision
Directive-38. The most recent round of VSU expansion was
launched in early 2010 when we received NSDD-38 requests from
ICE for the establishment of VSU's in four countries and for
increases to VSU staff in two more countries. Those requests
have all been approved by the respective chief of missions and
the new VSU's are either deployed or in the latter stages of
deployment.
As an established part of the process, senior officials
from the State Department Bureau of Consular Affairs and
Diplomatic Security accompany ICE officials on the site
assessments preceding NSDD-38 submission. The assessment teams
consult with officials at post to determine the feasibility and
timing of establishing an office and brief the chief of mission
on the role of the VSU. In June 2010, a joint State-ICE team
conducted assessments of three posts.
Before closing, I would like to highlight the consular
officers' essential role in enforcing U.S. immigration law and
protecting our borders. Our 246 consular sections in 167
countries are staffed by more than 1,500 officers, nearly 4,000
locally engaged staff, and 100 full-time diplomatic security
agents assigned as ARSO-I's devoted to fraud prevention
efforts.
Officers devoted to visa adjudication are highly qualified,
well-trained, and very motivated professionals committed to a
career of serving the United States overseas. They have foreign
language skills necessary to stay abreast of the local trends
and conduct interviews. 1,067 of our consular officer positions
require fluency in 1 of 65 languages.
Consular officers are fully prepared for this critical
responsibility. Our officers understand foreign cultures and
political, legal, and economic developments in countries where
they are posted. This unique cadre of employees gives the
Department a special expertise in matters directly relevant to
the full range of visa ineligibilities. The Department's
commitment to training and continuing education to equip
consular officers with particular expertise in identifying
individuals who pose a threat, possess fraudulent documents,
are imposters or otherwise attempting to enter into the United
States.
Thank you, Mr. Chairman, Madam Ranking Member. I am pleased
to take any questions.
[The prepared statement of Mr. Donahue follows:]
__________
Mr. Gallegly. Thank you, Mr. Donahue.
Ms. Kephart?
TESTIMONY OF JANICE L. KEPHART, DIRECTOR OF NATIONAL SECURITY
POLICY, CENTER FOR IMMIGRATION STUDIES
Ms. Kephart. Thank you, Chairman Gallegly and Ranking
Member Lofgren, for the opportunity to testify today on the
importance of assuring that security is embedded throughout the
visa process.
Let me start today with my conclusion. Extending
appropriate visa adjudication authorities judiciously where
necessary helps build a stronger and more flexible border
framework that can adapt to changes in terrorist travel methods
as we move forward.
The 9/11 Commission's recommendations emphasize that
terrorists are best stopped when ``they move through defined
channels.'' Remember that of 23 hijacker applications, 22 were
approved.
The first and best opportunity to stop terrorist travel is
in the visa adjudication process where triggers for further
investigation can mimic what should have been triggers in the
9/11 investigation, such as recently obtained new passports,
suspicious or fraudulent travel stamps, indicators of
extremism, or incomplete applications or fraudulent
applications.
However, we know that new terrorist travel methods evolve
constantly, and it is actually DHS and ICE that have the best
access to the information and expertise to expose those methods
because only ICE holds the open-case information and sensitive
data we need to identify terrorists.
In addition--and this is really important to our discussion
today--a foreign national's affiliation with terrorism may
develop after or because of an already-existing U.S. visa.
Osama bin Laden and colleague Sheikh Mohammad specifically
sought out individuals with existing U.S. visas. Thus, in my
view visas need periodic review, especially prior to U.S.-bound
travel. Revocation investigations need to be as robust as those
conducted by VSU's prior to visa issuance. In fact, as we know
already, visa revocations can be the linchpin to deny entry or
support removal of those already in the United States.
With the death of bin Laden and an increase in retaliatory
statements by al Qaeda, we may now experience even more
splintering of al Qaeda into factions or ``lone wolf'' type
terrorists. Our consular posts will be under more pressure than
ever to get adjudications right, most particularly in visa-
issuing countries where there is currently no formal policy on
pre-travel vetting. Today visa waiver travelers coming for
business or pleasure are vetted through ESTA, a DHS travel
authorization program which operates as a virtual mini-visa for
nationals of visa-waiver countries.
But visa-issuing countries have no such standardized pre-
travel vetting. This is a significant gap, even if the State
Department is trying to fill it in right now. There is no
formalization of that. In these instances, revocations could
occur without the threat posed by airline travel of a terrorist
such as the Christmas Day Bomber.
From the lens of a former 9/11 Commission staffer, my view
is that extending visa revocation authority to DHS and
expanding VSU's worldwide is common sense from a legal, policy,
and bureaucratic viewpoint. VSP security-related reviews in
high-risk areas of the world and throughout the visa process
are essential. From a policy perspective, security has to trump
infrastructure, political, or diplomatic considerations that
are not always in line with security decisions. From a legal
perspective, it is DHS that is responsible for both homeland
and border security at heart. Thus, what VSU's add to security
of visa processing at consulates overseas is invaluable because
it is what they do.
The State Department has its top mission as diplomacy and
is an absolutely and necessary function, and the work they do
is extremely important. But State's chief of missions really
should not have a say in determining whether VSU presence
should be at a consular post or not.
Moreover expanding VSP authority to security-related
revocations is feasible. The VSU's combine intelligence
operation and law enforcement to intercept terrorists and
constrain terrorist mobility, as we have already heard today.
Our national security depends in part on the robustness of
our border security to keep out foreign nationals with
nefarious intentions. Counterterrorism efforts outside of our
physical borders and throughout the entire visa process in both
issuance and revocation has to be as secure as possible. The
entity really with the mission, expertise, and bureaucratic
functioning on national security-related immigration cases is
DHS. In addition, DHS already has that visa authority by law.
An extension of that authority simply to include revocations
seems to make common sense. You know, legislation supporting
this end should certainly be considered and a priority.
Thank you.
[The prepared statement of Ms. Kephart follows:]
__________
Mr. Gallegly. Thank you, Ms. Kephart.
Mr. Alden?
TESTIMONY OF EDWARD ALDEN, BERNARD L. SCHWARTZ SENIOR FELLOW,
COUNCIL ON FOREIGN RELATIONS
Mr. Alden. Good afternoon, Chairman Gallegly and Ranking
Member Lofgren, and distinguished Members of the Subcommittee.
I have researched extensively the issues of national
security and immigration, both for my book, ``The Closing of
the American Border: Terrorism, Immigration and Security Since
9/11,'' and as project director for the council's independent
task force on U.S. immigration policy.
The goal of visa security is to use the visa system as a
screening tool to keep out those suspected of having terrorist
or criminal links or otherwise posing a security threat to the
United States. Successful screening requires pulling together
all of the information available to the Government and checking
the identities of visa applicants against that information. The
question of which agency is in charge or where the individuals
doing the screening are located is less important than having
an effective system in place.
I have four points.
First, the security review system should be both
comprehensive and efficient, allowing for accurate
determinations in a timely manner. Security done well will
improve not detract from travel facilitation because it permits
scarce consular and intelligence resources to be focused on
those who may pose a threat while allowing the vast majority of
lawful travelers to receive visas promptly.
Second, screening tools have improved immensely over the
past decade. In the aftermath of 9/11, there were few good
options. The United States had little choice but to scrutinize
certain visa applicants on the basis of general profile
characteristics--nationality, age, gender, et cetera--that were
only loosely connected to the actual risk posed by an
individual. That is no longer the case. For the past couple of
years, the Government has been pilot-testing a new system in
which all visa applicants will be checked quickly and
accurately against the information available in the
Government's terrorism, border, criminal, and visa databases.
In particular, it is my understanding that this process helps
to resolve many of the false name matches that plague the
current procedures while also identifying security risks that
are missed under the current system.
Third, it is time, therefore, to streamline some of the
redundant and inefficient security review programs put in place
after 9/11 when better options did not exist. The security
advisory opinion system in which detailed background checks are
done each year on several hundred thousand visa applicants
should become more targeted and focused.
Fourth, unnecessary visa delays, some--certainly not all--
as a result of cumbersome security screening hurt the U.S.
economy. The tourist industry, which is our largest single
export, has missed out on a decade of strong growth in world
travel. Visas are currently required for some 35 percent of
visitors and that number will rise to more than half by 2002
because of growing travel from Brazil, India, and China. In a
report on visa delays to be released tomorrow that I strongly
recommend to your attention, the U.S. Travel Association
estimates that simply regaining our pre-9/11 share of world
travel would add $859 billion to U.S. GDP and create 1.3
million jobs. The Commerce Department has said that visa delays
discourage foreign investment and keep business travelers, many
who are coming here on buying missions, away from the United
States. The result is jobs lost at a time when unemployment is
near double-digit levels.
Finally, unnecessary visa delays damage the United States'
reputation for fairness. I have come to know many of the
innocent individuals caught up in lengthy delays because of
poorly designed visa security measures. They are scientists and
engineers and business people, most of whom have lived in the
United States for years who faced long delays simply because
they went home for a visit and triggered the background check
when they tried to get their visas stamped to return.
One of them, Jay Sarkar, is a microchip designer who helped
create Intel's latest generation of chips. He earned a Ph.D. at
the University of Texas and almost gave up on this country
after facing a 4-month security review in 2008. Today,
thankfully, he works for Qualcomm in San Francisco and was
awarded one of the small number of green cards given to
outstanding researchers.
Another I wrote about recently, Lakshmi Ganti, an
electrical engineer with an M.B.A. from Babson College, faced
an 18-month security review in trying to return to his job in
Boston. Not surprisingly, he lost that job. 5 months ago, he
got a new job offer in the United States but was again faced
with a security review. I am pleased to report that shortly
after I filed my testimony on Monday, he called to tell me that
his visa had finally been approved and that he will be able to
return to the United States.
It is time to move past worn-out notions that delays in
visa processing are necessary for security. They are not.
Delays are simply costs with no benefits. It is possible for
the U.S. Government to do better on both security and
facilitation, and Congress and the Administration should work
together to make this happen as quickly as possible.
Thank you.
[The prepared statement of Mr. Alden follows:]
__________
Mr. Gallegly. Thank you very much, Mr. Alden.
Mr. Alden, in your written testimony, you state unnecessary
visa delays do great damage to the United States' reputation.
That is page 3, first sentence. Correct? Are you saying that
the opinions of foreign countries should take precedence over
the safety of Americans?
Mr. Alden. No. Actually what I am worried about is the
opinions of people who have come to the United States, have
worked in the United States, often in the high technology and
other sectors, and want to be part of this country and its
economy. So it is not the opinions of foreign governments. I
think that is irrelevant. It is the impression we leave with
skilled would-be immigrants who are thinking do I want to come
to the United States or do I want to stay home in India or in
China or do I want to go to Europe? If I am a talented
individual, where do I want to work? That is where we hurt our
reputation. I am not worried about what foreign governments
think. I am worried about what individuals who can contribute--
--
Mr. Gallegly. From foreign countries.
Mr. Alden. From foreign countries. But many of them have
contributed greatly to our economy and continue----
Mr. Gallegly. But isn't the word ``unnecessary'' a little
subjective?
Mr. Alden. I don't think so because my understanding is
that we have the capability, due to improvement in information
management, to do more effective security screening with fewer
delays. I think our goal should be both security and
facilitation. It is not an either/or question.
Mr. Gallegly. Mr. Donahue, has the State Department
headquarters established specific reasons which has
communicated to all the embassies and consulates for which a
request for establishment of a VSU at the visa-issuing post
overseas may have been refused?
Mr. Donahue. Thank you for the question, Mr. Chairman.
We have not established any specific guidelines. We
certainly support and we work very hard working with our VSU or
ICE colleagues to establish new offices in all the places that
we have jointly agreed they should be. The NSDD-38 requires
that an Ambassador or a chief of mission at a post makes a
determination about all people that come. And these chief of
missions, whether they are State Department or they are a
member of another agency--come from another agency or they come
from the military, they come from the Hill, they come from the
private sector--and they are tasked with the responsibility to
ensure that every member of their mission is secure and is
doing the most effective job for the U.S. Government. They have
to make that decision.
That being said, we work very closely with ICE in their
presentations for their NSDD-38, but everyone going out to the
post, no matter what the agency is, including State Department
officials--there must be an approval from the chief of mission
for that person to come out to post.
Mr. Gallegly. Would you ever see a situation where State
would ever deny a request that would enhance national security?
Mr. Donahue. I cannot imagine what that would be, sir.
Mr. Gallegly. Ms. Kephart, in your opinion, should aliens
whose visas are revoked on terror or national security grounds
be allowed to access the Federal courts to appeal their
revocation?
Ms. Kephart. You know, when you are dealing with national
security cases, you are dealing with national security
information. The issue is a longstanding one. This is the same
issue that the National Security Unit at the legacy Immigration
and Naturalization Service dealt with too in cases pertaining
to those currently in the United States who are seeking removal
of--and the national security information there. I don't think
it is ever a good idea to put, number one, State's authority to
issue a visa at stake. It is a discretionary issue. The courts
have decided this again and again in the circuits, and it is
not up for judicial review according to four of our circuits.
Furthermore, you are dealing with national security
information, as I said, and putting that system into chaos is
not a good idea from a national security perspective at all.
Mr. Gallegly. Thank you.
I see my time has expired, but can I just add one
additional question at the end? Do you think that part of this
process, should they ever get into the courts, that it could
force the Government to release classified information that
might be very important and in our national security?
Ms. Kephart. Right. I didn't state it clearly enough, but
when I was referring to national security information, I was
referring to classified information. Yes, sir.
Mr. Gallegly. Okay, that is fine. Thank you very much, Ms.
Kephart.
Ms. Lofgren?
Ms. Lofgren. Thank you, Mr. Chairman.
I think we might actually have more agreement than I
thought when the hearing began because, as I understand it,
when someone comes and applies for a nonimmigrant visa, the
State Department is going to run it through your CLASS
database, but you are only going to run it through the TECS
database, if you have got a Homeland Security person there
stationed abroad. Is that correct?
Mr. Donahue. It is partially correct. Many of the TECS
files are transferred over to the CLASS database, and so we
check a lot of the records against records that are in TECS.
But I think you need to see it in the larger process because,
first of all, under the current process, after the visa issued,
that record is then reviewed in a recurrent vetting process,
something that was recommended by Ms. Kephart. We have a
recurrent vetting process that looks at all of the visas that
are extant and checks to see is there any other data in----
Ms. Lofgren. Well, I think that is a good idea.
Mr. Donahue [continuing]. Any sources. And I receive every
day numerous requests to revoke, and we do revoke. In fact----
Ms. Lofgren. Well, in your testimony, you indicated you
have never--I mean, when Homeland says don't do this, you never
once have failed to follow that.
Mr. Donahue. That is right.
Ms. Lofgren. So that is a piece of good news.
Here's a question. The GAO report--one thing that kind of
jumps out is that the ICE agents are not necessarily receiving
language or country-specific training, and that might not
matter in some countries, but I think it would be very material
in some other countries.
And so when I go abroad and I visit with consular officers
and I look at how this goes, one of the questions I have always
had is couldn't we break down the bureaucratic barriers. I
think we ought to run every applicant through the TECS system.
You know, you got a DHS person sitting next to a State
Department person. They are all on the same team. I mean, why
don't we have the State Department just run the names through,
and then if there is value added to the law enforcement people,
they have got unique training for that. But if the database is
in the U.S., if you don't have a DHS agent with the language
skills so they can't actually do the interview, I am wondering
what is the value of having a person without the language
skills stationed in a place, for example, in Yemen.
Mr. Cote. Congresswoman, we do actually have language-
capable VSU personnel overseas, and during our recruiting
process, we do recruit for the language capabilities.
Ms. Lofgren. So in every case, we wouldn't send an officer
over unless they spoke the language of the country they are
being stationed in?
Mr. Cote. Not at every post, but there have been some
instances where the post has required language training, and we
have sent people to language training----
Ms. Lofgren. I wonder if you could just, you know, after
the hearing, give me a list of the agents and the language
capabilities and where they have been sent and the instances
where we have a match and the exceptions to that. That would
very interesting to me.
Mr. Cote. We will provide that.
Ms. Lofgren. Mr. Alden, you have had an opportunity, I
think, to take a look at the legislation that has been
discussed. Do you have any views on whether the bill
accomplishes what you think needs to be done in terms of
security as well as efficiency?
Mr. Alden. I think to echo some of the comments that you
have made, I think the real issue is what the VSP agents are
doing in the embassies where they are located. And the GAO
report highlighted the need to get a better handle on that. If
all we are talking about is running names against additional
databases, this can be done from the United States. It can be
done at a fraction of the cost.
Ms. Lofgren. It would be a lot cheaper.
Mr. Alden. A lot cheaper than putting people in the
embassies. So the question is are we talking about the
development of more of an elite corps so individuals with real
language training, local law enforcement contacts, much like
the FBI attaches or the CIA station personnel that we have
abroad? If we are talking about the development of that sort of
capability, then I can see it adding a lot in terms of what Ms.
Kephart talked about in trying to identify indicators of
terrorist travel.
What I don't see--and I am happy to be corrected--is that
DHS has a plan for developing that type of capacity. It seems
to be more just getting an ICE agent in place.
Ms. Lofgren. Well, I think we are going to get a report on
that subsequent to this.
Mr. Alden. And I think it is important to try to clarify
that.
Ms. Lofgren. It just seems to me that we ought to break
down the barriers between the two Departments to have access to
the database. That is just to me a simple thing. And once we do
that, assuming that we have got our technology in place--you
know, if there is a problem with somebody, it would be nice to
know it before we issue a visa and not issue the visa. That is
a lot better than revoking. Obviously, if you find out later
and you need to revoke, you do, but the earlier you catch it,
the better of you are going to be, it seems to me. That is a
suggestion I would make, and I think to some extent this is a
system that has worked as envisioned and maybe could be
expanded with some interagency collaboration.
And I see my time is up, Mr. Chairman. So I will yield
back.
Mr. Gallegly. I thank the gentlelady.
The gentleman from Florida, Mr. Ross?
Mr. Ross. Thank you, Mr. Chairman.
Mr.--it is Cote? I appreciate that.
Let me ask you about the security process, I mean, the
screening process. Do you have an opinion as to whether the
screening process--I mean, we have got the 2004 intel
requirements that they have in-person interviews. Do you think
that the best place to do the screening is in the United States
or at the consular office?
Mr. Cote. I think that the best approach is to have a
layered approach, and the layered approach starts with initial
screening with databases and information sharing between the
agencies that are involved in the national security process.
Mr. Ross. Go ahead. I would assume, though, that you would
think that we should have an in-person interview at least in
the consular office.
Mr. Cote. Absolutely. We believe that there is no finer
capability of not having law enforcement-trained person, boots
on the ground so to speak, there to be able to look at
documents, do interviews, collaborate with our State Department
colleagues and other law enforcement agencies at post, along
with bringing the law enforcement expertise to that process.
Mr. Ross. And if we had had that in place prior to
September 11th in 2001, we probably would have prevented a
major catastrophe.
Mr. Cote. I think it would have certainly enhanced the
process, yes.
Mr. Ross. Now, I know the GAO has issued a report, and
according to the report, over one-quarter or about 5 of 19
posts of the VSP are located at embassies and consulates that
are ranked outside of the top 50 risk posts identified by DHS
and State. Do you know what decision-making process was
followed to place the VSP agents at these locations instead of
high-risk locations?
Mr. Cote. Well, we have to start out by looking at how they
are ranked, and out of the over 200 visa issuing posts, they
are ranked as far as risk is concerned. I can tell you that all
the VSU's are within the top 100, and I think as far as getting
the expansion of the program out there at least initially, we
wanted to get to any one of those posts that we could get to as
quickly as possible to secure the posts and work with our
colleagues there. So the highest-risk posts are still our goal.
Mr. Ross. And in furtherance of that goal, what is being
done, can you say, to enhance that strategic plan?
Mr. Cote. Our 5-year strategic deployment plan is still in
place. It is consistent with what we plan to do going forward
and having the opportunity and the resources to do that, we
will. It is one of our top priorities.
Mr. Ross. Thank you. I also note that the report indicated
that since the establishment of the program in 2003, the VSP
tracking system did not collect accurate comprehensive data on
VSP performance measures such as the time spent by VSP agents
on visa security activities or investigations, training
provided to consular officers, and assistance and liaison
activities provided by VSP agents. In fact, the GAO recommended
that the Department of Homeland Security ensure that the VSP
tracking system collects reliable data on all performance
measures to accurately evaluate and report on VSP performances.
Do you think that the Department of Homeland Security needs
to improve the tracking of the VSP activities and performance?
Mr. Cote. We concurred with the majority of that. Since the
report, we have put into place a new tracking system that has
those measures put into it, and we are tracking all the
recommendations that the GAO report had.
Mr. Ross. You are. Good.
Mr. Cote. We are.
Mr. Ross. Ms. Kephart, do you think that the Visa Security
Program should be expanded?
Ms. Kephart. Yes, absolutely. The additional positive that
the VSP provides--and the DHS OIG report from 2008 makes this
very clear--is that it adds a layer of on-site investigative
expertise that would not otherwise exist. So you can have not
only an analysis of individual cases, but you can have an
analysis of ongoing methods that are developing in terrorist
travel. You cannot have that necessarily by simply a technology
check. I agree with Ranking Member Lofgren that you need to
make TECS available across the board, but that technology
access is only the base for an investigation. You need to have
folks on board to actually conduct those investigations, and
the DHS OIG report has a very good example--anecdotal--of
terrorist affiliations amongst three people that were only
discovered because VSP was on site.
Mr. Ross. Thank you.
I see my time is up and I yield back.
Mr. Gallegly. I thank the gentleman.
The gentlelady from Texas, Ms. Jackson Lee?
Ms. Jackson Lee. Thank you very much, Mr. Chairman.
Could I ask Mr. Donahue to move the time clock? Because I
cannot see it. Just a little bit over. There we are. Thank you
very much. And the Chairman knows I always want to comply with
the time clock.
Let me thank both the Ranking Member for raising some of
the questions that she raised.
But I would out of personal privilege like to acknowledge
the Ambassador from Kenya who had the privilege of studying at
the University of Texas Medical Center some 30 years ago, which
I think indicates the kind of people that do come to the United
States. But he now serves as the Ambassador to the United
States from Kenya, and I would like to acknowledge him this
afternoon and thank him for his presence here.
Let me just ask Mr. Cote.
Mr. Cote. It is Cote, Congresswoman.
Ms. Jackson Lee. It is Cote, okay. I was tempted to say it
but did not see an accent.
But in any event, is it just your assessment in the
position that you had that most of the people seeking to come
into the United States, if you look globally of coming for a
productive purpose, when you look at visas across the board in
your work?
Mr. Cote. I would that would be correct.
Ms. Jackson Lee. Mr. Donahue, what has been your
assessment? I am not sure how long you have been in your
position, but in dealing with visas, what have you seen is the
landscape?
Mr. Donahue. I would agree with that assessment. I have
been doing it for 28 years and the vast majority of people
applying for visas are coming for positive reasons.
Ms. Jackson Lee. And, of course, most will say it only
takes one and we understand that. We have gone over and over
again as to what happened with 9/11. We know that many of the
individuals were there with visas and some of them--I think the
term that we have heard--had ``clean skin,'' had no records, so
that even as they were issued overseas, there was no derogatory
information that might have generated their presence at least
on some.
Maybe Mr. Cote has something he was trying to respond to?
Mr. Cote. No, Congresswoman.
Ms. Jackson Lee. How in the instance of the 9/11 when some
might have had clean skin--I know there are different
terminologies--would the enhanced Visa Security Program under
the legislation that we are presently sort of having a hearing
for--where would that have helped?
Mr. Cote. You are asking me?
Ms. Jackson Lee. Yes, sir.
Mr. Cote. It is not absolutely certain, but I think with
the enhanced screening process and the 100 percent vetting that
we do from where they applied for the visas, I think there is a
possibility that it could have been uncovered. Bringing law
enforcement and the intelligence community information that we
do now to that process, I think there would be a good
possibility that it could have been uncovered prior to
issuance.
Ms. Jackson Lee. But what you are saying is there is also
that kind of cooperation to a certain extent right now.
Mr. Cote. Cooperation with the State Department?
Ms. Jackson Lee. Yes.
Mr. Cote. Yes. We do cooperate.
Ms. Jackson Lee. And with intelligence. I mean, you look
broadly at the applicant.
Mr. Cote. At the visa security posts that we are at, we
look in depth at all those applications that we believe could
be a national security risk.
Ms. Jackson Lee. And I know, Mr. Donahue, there is an
intent by this bill to expand those VSU units. What do you
think? Is there any great enhancement on what you are doing and
these units in terms of the cost and other issues that we have
to be concerned about?
Mr. Donahue. Well, first of all, I would like to say that
since 9/11, we have really changed the way----
Ms. Jackson Lee. You have.
Mr. Donahue [continuing]. We do things and especially in
the last year, that instead of having static databases, we are
looking for that person who previously we didn't know. And that
is where we certainly appreciate the support that we receive
from ICE and from the other intelligence and law enforcement
communities to help us find that person, that unknown
character. We can build databases of bad people all----
Ms. Jackson Lee. And I don't mean to cut you off, but I
need to let this other point--I do want to bring to the
attention of the Committee that a gentleman from--a Saudi
student attempted a terrorist terror plot. He was caught
because of a combined effort but was not caught earlier. And I
don't know if this VSU unit would have helped him because he
had no derogatory elements to his background.
So I think the question I want to raise is that we need a
system of cooperation. The question is, are the VSU units the
best, and is it good to remove the judicial review? Because I
think overall the grand number of people that come into the
United States want to do good. I want to weed out the ones who
do not.
And I would just like to finish on this point. Do you have
any comment about removing the judicial review aspect to an
individual whose visa has been denied?
Mr. Gallegly. Would you like to try to respond to that very
quickly?
Mr. Donahue. We have just received this bill recently. We
have not sent it through the interagency process. We would be
glad to take it for the record.
Ms. Lofgren. Would the gentlelady yield?
Ms. Jackson Lee. I would be happy to yield, if the
gentleman would yield me an additional minute.
Mr. Gallegly. An additional 30 seconds.
Ms. Lofgren. I just want to make clear for the general
public we know that right now revocation of visas outside the
United States is not subject to judicial review, and I don't
think anybody is suggesting that that be changed.
Mr. Donahue. And we thank you for that.
Ms. Lofgren. The question is what happens constitutionally
to someone who is in the U.S.
Ms. Jackson Lee. Correct.
Ms. Lofgren. I thank the gentlelady for yielding.
Ms. Jackson Lee. My point was the judicial review component
to the legislation.
Ms. Lofgren. I knew that but I just wanted to make sure the
public understood.
Ms. Jackson Lee. And if you can comment on that.
And I would finally say that terrorism is something we have
to be concerned about, but we need to balance the visa system
to ensure that we still have a welcoming door for those who
want to come and help and do well in the United States as this
country has been based upon.
I yield back.
Mr. Gallegly. The time of the gentlelady has expired.
I would ask unanimous consent to enter into the record a
letter of support on H.R. 1741, the ``Secure Visas Act,'' from
ACT! for America.
Hearing no objection, that will be the order.
[The information referred to follows:]
__________
Mr. Gallegly. I want to thank our witnesses particularly
for your patience in waiting almost 2 hours for us to get
started. I know your time is valuable, and we all respect that.
And I really appreciate that, plus the excellent testimony you
gave today. We are all grateful for that.
Without objection, all Members will have 5 legislative days
to submit to the Chair additional written questions for the
witnesses, which we will forward and ask the witnesses to
respond as promptly as possible so their answers can be made a
part of the record of the hearing.
Without objection, all Members will have 5 legislative days
to submit any additional materials for inclusion in the record.
And with that, again I thank the witnesses for not only
your patience but your excellent testimony, and with that, the
hearing stands adjourned.
[Whereupon, at 4:30 p.m., the Subcommittee was adjourned.]
A P P E N D I X
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Material Submitted for the Hearing Record