[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

                              ----------                              

                              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.]





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               Material Submitted for the Hearing Record




                                 
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