Border Security
New Policies and Procedures Are Needed to Fill Gaps in the Visa Revocation Process Gao ID: GAO-03-798 June 18, 2003The National Strategy for Homeland Security calls for preventing the entry of foreign terrorists into our country and using all legal means to identify; halt; and, where appropriate, prosecute or bring immigration or other civil charges against terrorists in the United States. GAO reported in October 2002 that the Department of State had revoked visas of certain persons after it learned they might be suspected terrorists, raising concerns that some of these individuals may have entered the United States before or after State's action. Congressional requesters asked GAO to (1) identify the policies and procedures of State, the Immigration and Naturalization Service (INS), and the Federal Bureau of Investigation (FBI) that govern their respective visa revocation actions and (2) determine the effectiveness of the process.
The U.S. government has no specific written policy on the use of visa revocations as an antiterrorism tool and no written procedures to guide State in notifying the relevant agencies of visa revocations on terrorism grounds. Further, State, INS, and the FBI do not have written internal procedures for notifying their appropriate personnel to take specific actions on visas revoked by the State Department. State and INS officials said they use the revocation process to prevent suspected terrorists from entering the country, but none of the agencies has a policy that covers investigating, locating, and taking action when a visa holder has already entered. This lack of formal written policies and procedures has contributed to systemic weaknesses in the visa revocation process that increase the possibility of a suspected terrorist entering or remaining in the United States. In our review of 240 visa revocations, we found that appropriate units within INS and the FBI did not always receive notifications of all the revocations; names were not consistently posted to the agencies' watch lists of suspected terrorists; 30 individuals whose visas were revoked on terrorism grounds had entered the United States either before or after revocation and may still remain; and INS and the FBI were not routinely taking actions to investigate, locate, or resolve the cases of individuals who remained in the United States after their visas were revoked.
RecommendationsOur recommendations from this work are listed below with a Contact for more information. Status will change from "In process" to "Open," "Closed - implemented," or "Closed - not implemented" based on our follow up work.
Director: Team: Phone:GAO-03-798, Border Security: New Policies and Procedures Are Needed to Fill Gaps in the Visa Revocation Process
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Gaps in the Visa Revocation Process' which was released on June 18,
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Report to Congressional Requesters:
June 2003:
Border Security:
New Policies and Procedures Are Needed to Fill Gaps in the Visa
Revocation Process:
GAO-03-798:
GAO Highlights:
Highlights of GAO-03-798, a report to the Subcommittee on National
Security, Emerging Threats, and International Relations, House
Committee on Government Reform, and the Senate Committee on
Finance
Why GAO Did This Study:
The National Strategy for Homeland Security calls for preventing the
entry of foreign terrorists into our country and using all legal means
to identify; halt; and, where appropriate, prosecute or bring
immigration or other civil charges against terrorists in the United
States. GAO reported in October 2002 that the Department of State had
revoked visas of certain persons after it learned they might be
suspected terrorists, raising concerns that some of these individuals
may have entered the United States before or after State‘s action.
Congressional requesters asked GAO to (1) identify the policies and
procedures of State, the Immigration and Naturalization Service (INS),
and the Federal Bureau of Investigation (FBI) that govern their
respective visa revocation actions and (2) deter-mine the
effectiveness of the process.
What GAO Found:
The U.S. government has no specific written policy on the use of visa
revocations as an antiterrorism tool and no written procedures to
guide State in notifying the relevant agencies of visa revocations on
terrorism grounds. Further, State, INS, and the FBI do not have
written internal procedures for notifying their appropriate personnel
to take specific actions on visas revoked by the State Department.
State and INS officials said they use the revocation process to
prevent suspected terrorists from entering the country, but none of
the agencies has a policy that covers investigating, locating, and
taking action when a visa holder has already entered.
This lack of formal written policies and procedures has contributed to
systemic weaknesses in the visa revocation process that increase the
possibility of a suspected terrorist entering or remaining in the
United States. In our review of 240 visa revocations, we found that
* appropriate units within INS and the FBI did not always receive
notifications of all the revocations;
* names were not consistently posted to the agencies‘ watch lists of
suspected terrorists;
* 30 individuals whose visas were revoked on terrorism grounds had
entered the United States either before or after revocation and may
still remain; and
*INS and the FBI were not routinely taking actions to investigate,
locate, or resolve the cases of individuals who remained in the United
States after their visas were revoked.
What GAO Recommends:
GAO makes recommendations to the Department of Homeland Security, in
conjunction with the Departments of State and Justice, to ensure that
when State revokes a visa because of terrorism concerns, the
appropriate units within State, INS, and the FBI are notified
immediately and that proper actions are taken. Homeland Security
agreed that the visa revocation process needed to be strengthened.
State and Justice did not comment on our recommendations.
[End of section]
Letter:
Results in Brief:
Background:
Visa Revocation Policies and Procedures:
Weaknesses Existed in the Visa Revocation Process:
Conclusions:
Recommendations for Executive Action:
Agency Comments and Our Evaluation:
Appendixes:
Appendix I: Scope and Methodology:
Appendix II: Legal Process for Visa Revocations:
Authority to Revoke Visas:
Timing and Effect of Visa Revocations:
The Legal Process for Removing an Alien Who Is Already in the Country:
Appendix III: Detailed Information on Revoked Visas:
Appendix IV: Example of a Revocation Cable the Department of State Sent
to the INS and the FBI:
Appendix V: Sample of a Revocation Certificate the Department of State
Sent to the Immigration and Naturalization Service Lookout Unit:
Appendix VI: Comments from the Department of Homeland Security:
Appendix VII: Comments from the Department of State:
GAO Comments:
Table 1: Number of Individuals Whose Visas Were Revoked on Terrorism
Grounds, by Region and Nationality (Sept. 11, 2001, through Dec. 31,
2002):
Table 2: Number of Visa Revocations, by Class and Type of Visa Revoked:
Figures :
Figure 1: Overview of the Border Security Process for Controlling
Entries and Visits of Foreign Visitors:
Figure 2: Diagram of Visa Revocation Notification System That, If Fully
and Consistently Implemented, Would Provide Information to the
Appropriate Units at State, Homeland Security, and the FBI:
Figure 3: Diagram of Gaps in the Visa Revocation Notification System:
Figure 4: INS Lookout Unit Receipt of Revocation Notification for 240
Cases:
Abbreviations:
CLASS: Consular Lookout and Support System:
FBI: Federal Bureau of Investigation:
IBIS: Interagency Border Inspection System:
INA: Immigration and Nationality Act:
INS: Immigration and Naturalization Service:
NIIS: Nonimmigrant Information System:
VGTOF: Violent Gang and Terrorist Organization File:
Letter June 18, 2003:
The Honorable Christopher Shays
Chairman,
Subcommittee on National Security, Emerging Threats, and International
Relations
Committee on Government Reform
House of Representatives:
The Honorable Charles E. Grassley
Chairman,
Committee on Finance
United States Senate:
As stated in the President's National Strategy for Homeland
Security,[Footnote 1] the U.S. government has no more important mission
than protecting the homeland from future terrorist attacks. The
strategy calls for preventing the entry of foreign terrorists into our
country and using all legal means to identify; halt; and, where
appropriate, prosecute or bring immigration or other civil charges
against terrorists in the United States. In October 2002,[Footnote 2]
we reported that the visa process should be strengthened as an
antiterrorism tool. We found that the Department of State had revoked
the visas[Footnote 3] of certain persons as a precautionary measure
after it learned that they might be suspected terrorists, raising
concerns that some of these individuals may have entered the United
States before or after their visas were revoked.
At your request, we assessed how the visa revocation process is being
used as an antiterrorism tool. Specifically, we (1) determined the
policies and procedures of the State Department, the Immigration and
Naturalization Service (INS),[Footnote 4] and the Federal Bureau of
Investigation (FBI) that govern their respective actions in the visa
revocation process and (2) assessed the effectiveness of the visa
revocation process, specifically (a) the steps State took to notify the
appropriate units within INS and the FBI of revocations; (b) the
procedures used by the three agencies to post lookouts on these
revocations to their terrorist watch lists;[Footnote 5] (c) whether any
of the individuals whose visas had been revoked were able to enter the
United States before or after the revocation; and (d) the actions taken
by INS and the FBI to investigate; locate; and, where appropriate,
clear, remove, or prosecute the individuals who did enter the United
States and may still remain in the country after their visas had been
revoked. Our review covered only visas that the State Department
revoked on terrorism grounds from September 11, 2001, through December
31, 2002.[Footnote 6]
To identify the policies and procedures governing the visa revocation
process, we interviewed officials from State, INS, and the FBI and
reviewed relevant documents. To evaluate the effectiveness of the visa
revocation process, we reviewed all 240 of State's visa revocations on
terrorism grounds from September 11, 2001, through December 31, 2002.
For each of these cases, we obtained information from the State
Department to determine if, and when, State notified INS and the FBI of
the revocations. We also obtained information from these agencies to
determine if, and when, they posted appropriate lookouts on their
terrorist watch lists. We reviewed INS arrival and departure data to
assess whether any of the individuals whose visas had been revoked had
entered the United States either before or after revocation and whether
they may still remain in the country. Where available, we supplemented
the INS data with information from the State Department. We interviewed
INS, FBI, and Department of Justice officials to discuss what actions
INS and the FBI had taken to investigate; locate; and, where
appropriate, clear, remove, or prosecute those individuals who may
remain in the United States. Appendix I provides more information on
our scope and methodology, including the limitations to INS and State
data that we reviewed.
Results in Brief:
Our analysis indicates that the U.S. government has no specific written
policy on the use of visa revocations as an antiterrorism tool and no
written procedures to guide State in notifying the relevant agencies of
visa revocations on terrorism grounds. State and INS have written
procedures that guide some types of visa revocations; however, neither
they nor the FBI have written internal procedures for notifying their
appropriate personnel to take specific actions on visas revoked by the
State Department. State and INS officials could articulate their
informal policies and procedures for how and for what purpose their
agencies have used the process to keep terrorists out of the United
States, but neither they nor FBI officials had policies or procedures
that covered investigating, locating, and taking appropriate action in
cases where the visa holder had already entered the country.
The lack of formal, written policies and procedures may have
contributed to systemic weaknesses in the visa revocation process that
increase the probability of a suspected terrorist entering or remaining
in the United States. In our review of the 240 visa revocations, we
found that (a) appropriate units within INS and the FBI did not always
receive notification of the revocations; (b) lookouts were not
consistently posted to the agencies' watch lists of suspected
terrorists; (c) 30 individuals whose visas were revoked on terrorism
grounds entered the United States either before or after revocation and
may still remain in the country;[Footnote 7] and (d) INS and the FBI
were not routinely taking actions to investigate,[Footnote 8] locate,
or resolve the cases of individuals who remained in the United States
after their visas were revoked. For instance:
* In a number of cases, notification between State and the appropriate
units within INS and the FBI did not take place or was not completed in
a timely manner.[Footnote 9] For example, INS officials said they did
not receive any notice of the revocations from State in 43 of the 240
cases. In another 47 cases, the INS Lookout Unit received the
revocation notice only via a cable, State's backup method of
notification. However, these cables took, on average, 12 days to reach
the Lookout Unit. Although State generally sent information cables to
the FBI's main communications center to notify it of the revocations,
FBI officials could not provide us with evidence that the
communications center sent these cables to the appropriate
counterterrorism units.
* In cases where the INS Lookout Unit could document that it received a
notification, it generally posted information on these revocations in
its lookout database within 1 day of receiving the notice. When the
Lookout Unit did not receive notification, it could not post
information on these individuals in its lookout database, precluding
INS inspectors at ports of entry from knowing that these individuals
had had their visas revoked. Moreover, the State Department neglected
to enter the revocation action for 64 of the 240 cases into its own
watch list. As a result, these individuals could apply at an overseas
post for a new visa, and consular officers would not necessarily know
that their previous visas had been revoked for terrorism concerns. FBI
officials in mid-May 2003 had not determined whether the agency's
Terrorist Watch and Warning Unit had received any notice of visa
revocations.
* Twenty-nine individuals entered the United States before their visas
were revoked and may still remain in the country. INS inspectors
admitted at least 4 other people after the visa revocation, 1 of whom
may still remain in the country. However, INS inspectors prevented at
least 14 others from entering the country because the INS watch list
included information on the revocation action or had another lookout on
them.
* INS and the FBI did not routinely attempt to investigate or locate
any of the individuals who entered the United States either before or
after their visas were revoked and who may still remain in the country.
Due to congressional interest in specific cases, INS investigators
located 4 individuals in the United States; however, they did not
attempt to locate other revoked visa holders who may have entered the
country. INS officials told us that they generally do not investigate
these cases because it would be challenging to remove these individuals
unless they were in violation of their immigration status even if the
agency could locate them. A visa revocation by itself is not a stated
grounds for removal under the Immigration and Nationality Act
(INA).[Footnote 10] FBI officials told us that they were not being
alerted by State that persons with revoked visas could be "possible
terrorists." As a result, the FBI did not routinely attempt to
investigate and locate individuals with revoked visas who may have
entered the United States.
On March 1, 2003, the Secretary of Homeland Security became responsible
for issuing regulations and administering and enforcing provisions of
U.S. immigration law relating to visa issuance.[Footnote 11] Therefore,
we are making recommendations to the Secretary of Homeland Security, in
conjunction with the Secretary of State and the Attorney General, to
ensure that when State revokes a visa because of terrorism concerns,
the appropriate units within State, Homeland Security, and the FBI are
notified immediately and that the appropriate actions are taken. We
provided a draft of this report to the Departments of Homeland
Security, State, and Justice for their comment. Homeland Security
agreed that the visa revocation process should be strengthened as an
antiterrorism tool and said that it looked forward to working with
State and Justice to develop and revise current policies and procedures
that affect the interagency visa revocation process. State and Justice
did not comment on our recommendations.
Background:
Our nation's border security process for controlling the entry and
visits of foreign visitors[Footnote 12] consists of three primary
functions: (1) issuing visas; (2) controlling entries through
inspection of passports, visas, and other travel documents as well as
controlling exits; and (3) managing stays of foreign visitors--that is,
monitoring these individuals while they are in the country. As shown in
figure 1, the Departments of State, Homeland Security, and Justice play
key roles in this process.
Figure 1: Overview of the Border Security Process for Controlling
Entries and Visits of Foreign Visitors:
[See PDF for image]
[A] Now within the Bureau of Customs and Border Protection.
[B] Now within the Bureau of Immigration and Customs Enforcement.
[End of figure]
The border security process begins at the State Department's overseas
consular posts, where consular officers adjudicate visa applications
for foreign nationals who wish to temporarily enter the United States
for visits related to business, tourism, or other reasons. At the port
of entry, an INS inspector determines whether the visa holder is
admitted to the United States and, if so, how long he or she may remain
in the country. Until recently, after INS successfully screened and
admitted foreign visitors, these individuals were generally not
monitored unless they came under the scrutiny of INS or a law
enforcement agency, such as the FBI, for suspected immigration
violations or other illegal activity.[Footnote 13]
On March 1, 2003, the Department of Homeland Security assumed
responsibility for many elements of the border security process. For
example, the new department incorporated the INS Inspections Unit into
its Bureau of Customs and Border Protection, which will focus its
operations on the movement of goods and people across U.S. borders. It
also folded the INS National Security Unit into its Bureau of
Immigration and Customs Enforcement, which is designed to enforce the
full range of immigration and customs laws within the United States.
According to Department of Homeland Security officials, the new
department also gained broad authority over the visa process under
section 428 of the Homeland Security Act, covering the development of
policies, regulations, procedures, and any other guidance that may
affect visa issuance or revocation.[Footnote 14]The State Department
remains responsible for managing the consular corps and the function of
issuing visas.
The FBI's Counterterrorism Division, within the Justice Department,
plays a key role in the border security process. The division includes
the Foreign Terrorist Tracking Task Force, which is now part of the
FBI's Office of Intelligence. The mission of the task force, an
interagency group, is to (1) deny entry into the United States of
aliens associated with, suspected of being engaged in, or supporting
terrorist activity and (2) aid in supplying information to locate,
detain, prosecute, or deport any such aliens already present in the
United States. The National Joint Terrorism Task Force is comprised of
36 federal agencies co-located in the Strategic Information and
Operations Center at FBI headquarters. This task force provides a
central fusion point for terrorism information and intelligence to the
66 Joint Terrorism Task Forces, which include state and local law
enforcement officers, federal agents, and other federal personnel who
work in the field to prevent and investigate acts of terrorism.
At each stage of the process, the responsible departments and agencies
rely on terrorist or criminal watch list systems--sometimes referred to
as tip-off or lookout systems--in fulfilling their respective border
security missions. For example, State relies on its Consular Lookout
and Support System (CLASS) as the primary basis for identifying
potential terrorists among visa applicants. CLASS incorporates
information on suspected terrorists from State's interagency terrorist
watch list, known as TIPOFF, as well as from the FBI, INS, and many
other agencies. Further, INS inspectors at ports of entry use the
Interagency Border Inspection System (IBIS) to check whether foreign
nationals are inadmissible and should be denied entry into the United
States. When a person enters the United States by air or by sea, INS
inspectors are required to check that person against watch lists before
the person is allowed to enter the country. INS inspectors may check
persons arriving at land borders against the watch lists, but they are
not required to do so.[Footnote 15] The exception is for males aged 16
or over from certain countries who are required to be checked.
Visa Revocation Policies and Procedures:
Our analysis indicates that the U.S. government has no specific written
policy on the use of visa revocations as an antiterrorism tool and no
written procedures to guide State in notifying the relevant agencies of
visa revocations on terrorism grounds. State and INS have written
procedures that guide some types of visa revocations; however, neither
they nor the FBI have written internal procedures for notifying their
appropriate personnel to take specific actions on visas revoked by the
State Department. State and INS officials could articulate their
informal policies and procedures for how and what purpose their
agencies have used the process as an antiterrorism tool to keep
terrorists out of the United States, but neither they nor FBI officials
had policies or procedures that covered investigating, locating, and
taking appropriate action in cases where the visa holder had already
entered the country. We summarized how information on visa revocations
would ideally flow among and within these three agencies on the basis
of our interviews with officials from State, Homeland Security, and the
FBI and on our analysis of the current visa revocation process.
Most Policies Are Informal:
According to State Department officials, the U.S. government has no
specific written policy on how agencies should use visa revocations as
an antiterrorism tool and no written procedures to guide the
interagency process for revoking visas on terrorism or other grounds.
These officials explained that prior to September 11, 2001, State
revoked only a small number of visas for terrorism-related reasons.
This relatively small number resulted in State and INS operating in an
informal manner when cooperating on denying admission to revoked visa
holders at ports of entry. State officials said that State and Justice
had agreed to informal notification procedures between the two agencies
and had crafted language for the visa revocation certificates several
years ago; however, the two agencies did not develop formal written
procedures. These officials said that State did not coordinate its visa
revocations with the FBI. In commenting on a draft of this report,
State said that the Visa Office generally worked under the impression
that, under long-standing practice, INS was passing relevant
information onto the FBI as appropriate.
State and INS officials articulated their agencies' policies on how
revocations help their agencies prevent suspected terrorists from
entering the United States. State officials told us that they envision
the revocation process as taking place before the visa holder enters
the country. This would allow State and other agencies more time to
investigate and determine whether a suspected terrorist is in fact
ineligible for a visa on terrorism grounds before allowing the visa
holder to enter the country. As these officials explained, since the
September 11 attacks, State's Bureau of Consular Affairs has been
receiving a large volume of information on suspected terrorists from
the intelligence community, law enforcement agencies, overseas posts,
and other units within State. The department reviews this information
to determine if a suspected terrorist has a U.S. visa. If the
identifying information is incomplete, as is often the case, State may
have difficulty in determining whether a visa holder with the same or a
similar name as a suspected terrorist is in fact the suspected
terrorist. The department may also lack sufficient proof of a specific
act that would render the suspected terrorist ineligible for a visa, as
required by the INA.[Footnote 16] In these cases, State would revoke
the person's visa under the Secretary of State's discretionary
authority, requiring the person to reapply for a visa if he or she
still intended to visit the United States. State would then use the
visa issuance process to obtain additional biographic and other data on
the visa applicant and make a determination on the person's
eligibility.
INS officials viewed the process as a means of notifying INS inspectors
to deny suspected terrorists entry into the United States. These
officials did not view a visa revocation, even if based on terrorism
concerns, as a reason for investigating someone who had already entered
the United States. They said the INA does not specify visa revocation
as a reason for removing a person from the country. (App. II provides
more information on legal issues associated with visa revocations.):
According to Justice and FBI officials, the FBI does not yet have a
policy on how to use the visa revocation process in its
counterterrorism efforts. The FBI has not developed such a policy
because the visa revocation information State sends to the bureau does
not indicate that the FBI may want to take follow-up action in these
cases. For instance, the notice of visa revocation does not explicitly
state that the reason for revocation is terrorism-related.
State and INS had written policies that covered some aspects of visa
revocations. State's policies and procedures, contained in the Foreign
Affairs Manual, specify when and for what reason a consular officer may
or may not revoke a visa, including for terrorism-related reasons. The
manual instructs consular officers to obtain a security advisory
opinion from the department before determining that a visa holder is
ineligible for a visa on terrorism grounds. In practice, according to
State officials, this means that department officials at headquarters
acting under the authority of the Secretary of Stateænot the consular
officers at overseas postsærevoke visas on the basis of terrorism
concerns. State Department officials told us that they follow specific,
but unwritten, operating procedures when the department revokes visas,
as described in more detail later in this report. INS has some general
policies related to the posting of lookouts for inadmissible aliens and
for the revocation of visas by immigration officers at ports of entry.
However, these policies do not call for specific actions by appropriate
INS personnel with regard to visas revoked by the State Department.
How the Visa Revocation Process Should Work:
Since the September 11, 2001, terrorist attacks, State has constantly
received new information on suspected terrorists from the intelligence
community, law enforcement agencies, and overseas posts. In some cases,
State received this information after it had already issued visas to
the individuals in question; the department would then revoke these
visas. Under the INA, the Secretary of State has discretionary
authority to revoke any visa that a consular officer has issued,
including cases in which the Secretary believes that the visa holder
may be ineligible for a visa under the INA's terrorism
provision.[Footnote 17] According to State Department officials and
documents, State revoked visas held by 240 individuals from September
11, 2001, through December 31, 2002, on terrorism grounds.[Footnote 18]
All of these visas were revoked as a prudent measure under the
Secretary of State's discretionary authority because, as discussed
earlier, State believed more research on the individuals was necessary
before they should be allowed to enter the United States. Appendix III
provides more information on these visas and the persons who held them.
Figure 2 shows how information should flow if State were to notify the
appropriate homeland security agencies, that is, those agencies charged
with controlling entry into the United States and investigating
potentially dangerous terrorists, that the individual with the revoked
visa may attempt to enter, or may have already entered, the United
States. The diagram is based on what officials from State, Homeland
Security, and the FBI described as the way the process should work, if
all of the agencies involved were fulfilling their roles.
Figure 2: Diagram of Visa Revocation Notification System That, If Fully
and Consistently Implemented, Would Provide Information to the
Appropriate Units at State, Homeland Security, and the FBI:
[See PDF for image]
[A] Now within the Bureau of Customs and Border Protection.
[B] Now within the Bureau of Immigration and Customs Enforcement.
[End of figure]
As the diagram in figure 2 illustrates, State should notify its
consular officers at overseas posts, the Department of Homeland
Security, and the FBI at the time of visa revocation. State should
notify its consular officers so that they would ask for a security
advisory opinion before issuing a new visa to the person whose visa had
been revoked. In addition, State would have to provide notice of the
revocation, along with supporting evidence, to Homeland Security and
the FBI. This would allow Homeland Security to notify its inspectors at
ports of entry so that they could prevent the individuals from entering
the United States.[Footnote 19] It also would allow Homeland Security
and the FBI to determine whether the person had already entered the
country and, if so, to investigate, locate, and take appropriate action
in each case. Depending on the results of the investigations,
appropriate actions could include clearing persons who were wrongly
suspected of terrorism, removing suspected terrorists from the country,
or prosecuting suspected terrorists on criminal charges.
Weaknesses Existed in the Visa Revocation Process:
We identified systemic weaknesses in the visa revocation process, many
of which resulted from the informal policies and procedures governing
actions that State, INS, and the FBI take during the process. In our
review of the 240 visa revocations, we found that (a) notification of
revocations did not always reach the appropriate unit within INS and
the FBI; (b) State did not consistently post lookouts on the
individuals; (c) 30 individuals whose visas were revoked on terrorism
grounds entered the United States either before or after the revocation
and may still remain in the country; and (d) INS and the FBI were not
consistently taking action to investigate; locate; or, where
appropriate, clear, prosecute, or remove any of the people who had
entered the country before or after their visas were revoked.
Inconsistencies in Notification Procedures:
There were weaknesses at several junctures of the notification process
that caused information on many visa revocations not to be shared among
units that needed the information at State, INS, and the FBI. Some of
these weaknesses were due to a breakdown in the notification process
from State to INS and the FBI, and some were due to problems in the
distribution of notifications within these agencies to the appropriate
unit. For 43 of the 240 revocations we reviewed, INS Lookout Unit
officials said that they did not receive any notification. In cases
where they did receive notification, some of them were not received at
the Lookout Unit in a timely manner because of slow intraagency
distribution of the notifications. FBI officials said that the agency's
main communications center received the notifications, but the
officials could not confirm if the notifications were then distributed
internally to the appropriate investigative units at the FBI (see fig.
3).
Figure 3: Diagram of Gaps in the Visa Revocation Notification System:
[See PDF for image]
[A] Now within the Bureau of Customs and Border Protection.
[B] Now within the Bureau of Immigration and Customs Enforcement.
[End of figure]
State's Procedures for Notifying INS, the FBI, and Overseas Posts of
Revocations:
State Department officials from the Visa Office described the
procedures they use to notify INS, the FBI, and State's overseas posts
of visas that are revoked by the department in Washington. According to
State officials, once the Deputy Assistant Secretary signs a revocation
certificate, the department is supposed to take the following actions,
as soon as possible after the visa is revoked: (1) notify the INS
Lookout Unit via a faxed copy of the revocation certificate so that the
unit can enter the individual into the National Automated Immigration
Lookout System, which is uploaded into IBIS; (2) notify consular
officers at all overseas post that the individual may be a suspected
terrorist by entering a lookout on the person into State's watch list,
CLASS; and (3) notify the issuing post via cable so that the post can
attempt to contact the individual to physically cancel his visa.
Information-only copies of these cables, which do not explicitly state
that the reason for the revocation is terrorism-related, are also sent
to INS's and FBI's main communications centers. State officials told us
they rely on INS and FBI internal distribution mechanisms to ensure
that these cables are routed to the appropriate units within the
agencies. According to these officials, they considered faxing the
revocation certificate to be the primary notification method for the
INS Lookout Unit, but the cable was an additional backup method. The
cables were the only notification method used to inform the FBI of the
revocation.
The State Visa Office did not keep a central log of visas it revoked on
the basis of terrorism concerns, nor did it monitor whether
notifications were sent to other agencies. When we asked for a list of
all revoked visas between September 11, 2001, and December 31, 2002,
Visa Office officials had to search through the office's cable database
to create such a list. State Department officials said they did not
have fax transmission receipts to confirm that they sent revocation
certificates for each of the 240 cases we reviewed. They were able to
provide us with 238 revocation cables, almost all of which addressed
informational copies to INS and the FBI. In commenting on a draft of
our report, State said that the Visa Office now keeps a log of
revocation cases and maintains all signed certificates in a central
file.
INS Lookout Unit Said It Did Not Consistently Receive Notification:
Officials from the INS Lookout Unit provided us with documentation
indicating that they received notification from the State Department in
197 of the 240 cases but did not receive notification in the other 43
cases (see fig. 4).
Figure 4: INS Lookout Unit Receipt of Revocation Notification for 240
Cases:
[See PDF for image]
[End of figure]
Lookout Unit officials had documentation to show that 150 faxed
revocation certificates were received in the unit. These faxed
certificates reached the unit, on average, within 1 to 2 days of State
enacting the revocation. For 90 cases, however, the documentation
provided to us did not indicate that the Lookout Unit had received a
fax. This was mitigated in 47 of these cases by the receipt of a
revocation cable, although this backup method of notification was less
timely than the fax. In cases where the cable was the only notification
received at the Lookout Unit, it took, on average, 12 days for the
Lookout Unit to receive the cable, although in 1 case it took 29 days.
According to an official from the INS communications center, because
the cables were marked "information only," they were routed through the
Inspections Division first, which then was supposed to forward them to
the Lookout Unit. He told us that if the cables had been marked as
"action" or "urgent," they would have been sent immediately to the
Lookout Unit. See appendix IV for an example of a revocation cable.
The Assistant Chief Inspector at the Lookout Unit stressed the
importance of timeliness in receiving notification, noting that delays
of even a few days could increase the possibility that an individual
with a revoked visa would travel to the United States before INS
inspectors were aware of the revocation.
The FBI Received Revocation Cables but May Not Have Distributed Them
Internally to the Appropriate Investigative Units:
The State Department generally included the FBI as an addressee on the
visa revocation cables. FBI officials with whom we spoke were able to
verify that State's revocation cables[Footnote 20] were received
electronically in the FBI communications center, but they were not able
to tell us whether this information was distributed to appropriate
coordinating and investigative units. An FBI official said that after
the cables arrived in the communications center, they became part of
the FBI's Automated Case Support database and a hard copy of the cable
was sent to analysts in relevant country desk units. The Assistant
Director for the Office of Intelligence told us that for the FBI to
take action on the cables, they would have to be directed to the
bureau's Counterterrorism Division. FBI officials could not provide
evidence that the revocation information reached the Counterterrorism
Division. Again, the cables did not specify that the reason for the
revocation was related to terrorism. The cables were described by State
as information only and did not request or specify any action from the
FBI.
Weaknesses Existed in Visa Revocation Watch List Procedures:
In our review of 240 revocations, we identified weaknesses in the steps
that State, INS, and the FBI took to place these individuals on watch
lists as a result of the revocation. The State Department did not
consistently post lookouts on individuals in CLASS after revoking their
visas. Moreover, State had not started to use a new revocation code
created in August 2002 that was designed to allow revocation lookouts
to be shared between State's and INS's watch lists. The INS Lookout
Unit consistently posted lookouts on its watch list but was only able
to do so in cases where it received notification of the revocation.
Some of the lookouts posted by the Lookout Unit did not contain
accurate information due to misinterpretation of State's revocation
certificates.
As of mid-May 2003, FBI officials could not determine which FBI unit,
if any, added lookouts to their watch lists on individuals with revoked
visas as a result of receiving the revocation notification from State.
State Did Not Consistently Post Lookouts on Individuals with Revoked
Visas:
We reviewed CLASS records on all 240 individuals whose visas were
revoked and found that the State Department did not post lookouts
within a 2-week period of the revocation on 64 of these individuals.
Many of the 64 individuals had other lookouts posted on them on earlier
or later dates, but the department had not followed its informal policy
of entering a lookout at the time of the revocation. State officials
said that they post lookouts on individuals with revoked visas in CLASS
so that, if the individual attempts to get a new visa, consular
officers at overseas posts will know that they must request a security
advisory opinion on the individual before issuing a visa. Without a
lookout, it is possible that a new visa could be issued without
additional security screening.
According to State Department officials, State and INS agreed to create
a specific code for visa revocation lookouts, the VRVK code, which
would be picked up automatically by INS's system, IBIS, in its real-
time interface with CLASS.[Footnote 21] This new code would allow INS
inspectors at ports of entry to see revocation lookouts that State had
posted. According to Department of Homeland Security officials, this
code should be State's primary method of notifying immigration
inspectors at ports of entry that an individual's visa had been
revoked, rather than the faxed revocation certificate. State said that
this code was required for all revocation lookouts as of August 15,
2002, yet in our review of CLASS records for the 240 visa revocations,
we saw no evidence that the department was using the VRVK code. The
department did not enter a lookout using the VRVK code for any of the
27 visas it revoked between August 15, 2002, and December 31,
2002.[Footnote 22]
INS Consistently Posted Lookouts but Misread Some Information on
Revocation Certificates:
When the INS Lookout Unit received notification from State, it
consistently posted lookouts in IBIS[Footnote 23] to indicate that
State had revoked the visa. The Lookout Unit had a policy to post
lookouts in IBIS the same day that it received the notification. In the
43 cases for which Lookout Unit officials said they did not receive
notification, they did not post a revocation lookout in IBIS because
the lookout unit did not have an independent basis for posting a
revocation absent a notification from State.
In 21 of the 240 cases, Lookout Unit officials misread information on
State's revocation certificate and, as a result, entered incorrect
information in IBIS on individuals who were born in one country but
hold citizenship in another. In 16 of these cases, the revocation
certificates clearly listed the individual's date and place of birth or
nationality, but the lookout unit entered place of birth or other
erroneous information into IBIS's nationality field. In the remaining 5
cases where the individuals' place of birth data were entered into the
nationality field, the revocation certificate did not clearly state
that the country listed was the individuals' place of birth. A Lookout
Unit official confirmed that this error in the lookout could hinder an
inspector at the port of entry from detecting the person since the
individual's passport would indicate a nationality different from his
place of birth. Lookout Unit officials said it would be helpful if the
State Department included more information on the revocation
certificates, including country of citizenship, passport numbers, visa
foil numbers, and intended itineraries and addresses in the United
States if they were listed in the visa application. See appendix V for
a sample revocation certificate. In commenting on a draft of this
report, State said that additional information is available to Homeland
Security officers at ports of entry through State's shared Consular
Consolidated Database.
The FBI Did Not Know If Lookouts Were Posted on Individuals with
Revoked Visas:
FBI officials could not determine which unit, if any, received the
revocation cables or whether any unit posted lookouts on these
individuals as a result of receiving notification of the revocation
from State. In technical comments on a draft of this report, the
Department of Justice said that the FBI maintains only one watch list,
the Violent Gang and Terrorist Organization File (VGTOF) that is
accessed by local and state law enforcement officials via the National
Crime Information Center. To add a person to that list, according to
the comments, the following information must be provided to the FBI:
the person's full name, complete date of birth, physical descriptors,
at least one numeric identifier, a contact person with a telephone
number, and VGTOF-specific classification information.
Many Individuals with Revoked Visas Entered the United States before or
after Revocation; Some Still Remain:
In our review of the 240 visa revocations, we found that 30 individuals
whose visas were revoked on terrorism grounds entered the United States
either before or after the revocation and may still remain in the
country.[Footnote 24] Our analysis of INS arrival and departure
information shows that many individuals had traveled to the United
States before their visas were revoked and had remained after the
revocation. Several have subsequently departed the country, but we
determined that 29 of the individuals who entered before the revocation
may still remain in the country.
INS data also show that INS inspectors admitted at least 4 people after
their visas were revoked; 3 of these individuals have since departed
but 1 may still remain in the country. In 1 of these 4 cases, the INS
Lookout Unit did not receive any revocation notice from State; thus, it
did not post a lookout in IBIS that could have alerted an inspector at
a port of entry to deny admission to the individual. In another case,
the unit received a notification cable 4 days after State had signed
the revocation certificate, but the individual had already entered the
country 2 days earlier. In the third case, the unit had posted a
lookout the day after the revocation but had incorrectly entered the
individual's place of birth, which differed from his nationality, in
the nationality field. In the last case, INS had received a
notification from State and had posted lookouts on the INS watch list
right after the revocation, but an INS inspector allowed the individual
to enter the United States 1 month later. INS officials could not
explain how an inspector could miss the lookout and allow this person
into the country.
Despite these problems, we noted cases where the visa revocation
process prevented possible terrorists from entering the country or
cleared individuals whose visas had been revoked. For example, INS
inspectors successfully prevented at least 14 of the 240 individuals
from entering the country because the INS watch list included
information on the revocation action or had other lookouts on them. In
addition, State records showed that a small number of people reapplied
for a new visa after the revocation. State used the visa issuance
process to fully screen these individuals and determined that they did
not pose a security threat. In one case, for example, the post took a
set of fingerprints from an individual whose name matched a record in
an FBI database. The individual's fingerprints did not match those of
the individual in the database, so he was cleared and issued a new
visa.
INS and the FBI Did Not Routinely Take Action on Individuals with
Revoked Visas Who Had Entered the United States:
The appropriate units in INS and the FBI did not routinely investigate,
locate, or take any action on individuals who might have remained in
the United States after their visas were revoked. INS and FBI officials
cited a variety of legal and procedural challenges to their taking
action in these cases.
INS Did Not Routinely Attempt to Locate Individuals with Revoked Visas:
In cases where they received the revocation notification from State,
INS Lookout Unit officials said that they did not routinely check to
see whether these individuals had already entered the United States,
nor did they pass information on visa revocations to investigators in
the National Security Unit.[Footnote 25]The National Security Unit,
unlike the Lookout Unit, did not receive copies of the faxed revocation
certificates or cables from the State Department. Investigators in this
unit said that the Lookout Unit occasionally notified them about a
revocation for an individual with a hit in TIPOFF, State's interagency
terrorist watch list, but that they were not typically notified of
other visa revocations.
National Security Unit investigators said that they generally did not
investigate or locate individuals whose visas were revoked for
terrorism concerns but who may still be in the United States. These
investigators said that even if they were to receive a revocation
notice, the revocation itself does not make it illegal for individuals
with revoked visas to remain in the United States. They said they could
investigate the individuals to determine if they were violating the
terms of their admission, for example, by overstaying the amount of
time they were granted to remain in the United States, but the
investigators believed that under the INA, the visa revocation itself
does not affect the alien's legal status in the United States.
This issue of whether a visa revocation, after an alien is admitted on
that visa, has the effect of rendering the individual out-of-status is
unresolved legally, according to officials in the Department of
Homeland Security's Office of the Principal Legal Advisor to the Bureau
of Immigration and Customs Enforcement and Bureau of Citizenship and
Immigration Services. These officials said that the language that the
State Department has been using on visa revocation certificates
effectively forecloses the U.S. government from litigating the issue.
The revocation certificates state that the revocation shall become
effective immediately on the date the certificate is signed unless the
alien is present in the United States at that time, in which case it
will become effective immediately upon the alien's departure from the
United States (see app. V). Homeland Security officials said that if
State were to cease using the current language on the revocation
certificates, the government would no longer be effectively barred from
litigating the issue and, if a policy decision were made to pursue an
aggressive litigation strategy, could seek to remove aliens who have
been admitted but have subsequently had their visas revoked.
Attempting to remove these aliens on the underlying reason for the
revocation may not be possible for various reasons, according to INS
officials. First, INS officials stated that the State Department
provides very little information or evidence relating to the terrorist
activities when it sends the revocation notice to INS. Without
sufficient evidence linking the alien to any terrorist-related
activities, INS cannot institute removal proceedings on the basis of
that charge. Second, even if there is evidence, INS officials said,
sometimes the agency that is the source of the information will not
authorize the release of that information because it could jeopardize
ongoing investigations or reveal sources and methods. Third, INS
officials state that sometimes the evidence that is used to support a
discretionary revocation from the Secretary of State is not sufficient
to support a charge of removing an alien in immigration proceedings
before an immigration judge. (See app. II.) In commenting on a draft of
our report, State said that most of the time, the information on which
these revocations is based is classified. If an interested agency seeks
to review the information for immigration purposes, it is available
from State's Bureau of Intelligence and Research or the source agency.
National Security Unit investigators told us that, because of
congressional interest, they had investigated and attempted to locate 7
individuals whose visas were revoked as a result of delayed security
checks and who had entered the country. They found that 4 of the 7
individuals were in the United States and in compliance with the terms
of their admission. One individual had departed to Canada; the
remaining 2 individuals were not located.
The FBI Did Not Routinely Investigate Individuals with Revoked Visas:
Although the FBI's Foreign Terrorist Tracking Task Force followed up on
many cases in response to congressional interest, FBI officials told us
that the bureau was not routinely opening investigations as the result
of visa revocations on terrorism grounds. They said that State's method
of notifying the FBI did not clearly indicate that visas had been
revoked because the visa holder was a possible terrorist. Further, the
cables were sent as "information only" and did not request specific
follow-up action from the FBI. State did not attempt to make other
contact with the FBI that would indicate any urgency in the matter.
Moreover, the Department of Homeland Security has not yet requested
that the FBI take any action with regards to visa revocations on
terrorism grounds.
In response to congressional interest, the Foreign Terrorist Tracking
Task Force in late 2002 and early 2003 followed up on the 105 cases of
visas that were revoked as a result of the Visas Condor name check
procedures. In February 2003, we asked the task force for information
on these 105 cases. The task force provided us with some information in
a written response on May 21, 2003. We did not have time to fully
evaluate the response before publication of this report because of the
nature and volume of additional information needed to do so.
Conclusions:
The visa process can be an important tool to keep potential terrorists
from entering the United States. Ideally, information on suspected
terrorists would reach the State Department before it decides to issue
a visa. However, there will always be some cases when the information
arrives too late and State has already issued a visa. Revoking a visa
can mitigate this problem, but only if State promptly notifies the
appropriate border control and law enforcement agencies and if these
agencies act quickly to (1) notify border patrol agents and immigration
inspectors to deny entry to persons with a revoked visa and (2)
investigate persons with revoked visas who have entered the country.
Currently there are major gaps in the notification and investigation
processes. One reason for this is that there are no comprehensive
written policies and procedures on how notification of a visa
revocation should take place and what agencies should do when they are
notified. As a result, there is heightened risk that suspected
terrorists could enter the country with revoked visas or be allowed to
remain after their visas are revoked without undergoing investigation
or monitoring.
Recommendations for Executive Action:
To strengthen the visa revocation process as an antiterrorism tool, we
recommend that the Secretary of Homeland Security, in conjunction with
the Secretary of State and the Attorney General:
* develop specific policies and procedures for the interagency visa
revocation process to ensure that notification of visa revocations for
suspected terrorists and relevant supporting information is transmitted
from State to immigration and law enforcement agencies, and their
respective inspection and investigation units, in a timely manner;
* develop a specific policy on actions that immigration and law
enforcement agencies should take to investigate and locate individuals
whose visas have been revoked for terrorism concerns and who remain in
the United States after revocation; and:
* determine if persons with visas revoked on terrorism grounds are in
the United States and, if so, whether they pose a security threat.
Agency Comments and Our Evaluation:
We provided a draft of this report to the Departments of Homeland
Security, State, and Justice for their comment.
The Department of Homeland Security agreed that the visa revocation
process should be strengthened as an antiterrorism tool. It indicated
that it looked forward to working with State and Justice to develop and
revise current policies and procedures that affect the interagency visa
revocation process. Their written comments are in appendix VI. In
addition, Homeland Security provided technical comments which we have
incorporated in the report where appropriate.
The Department of State did not comment on our recommendations.
Instead, State said that the persons who hold visas that the department
revoked on terrorism grounds were not necessarily terrorists or
suspected terrorists. State noted that it had revoked the visas because
some information had surfaced that may disqualify the individual from a
visa or from admission to the United States, or that in any event
warrants reconsideration of the individual's visa status. State cited
the uncertain nature of the information it receives from the
intelligence and law enforcement communities on which it must base its
decision to revoke an individual's visa. State said that it revoked
these visas as a precautionary measure to preclude a person from
gaining admission to this country until his or her entitlement to a
visa can be reestablished.
Our report recognizes that the visas were revoked as a precautionary
measure and that the persons whose visas were revoked may not be
terrorists. Although we have not reviewed the intelligence or law
enforcement data provided to State or reviewed by various agencies as
part of the security check process, there was enough concern that these
240 persons could pose a terrorism threat to cause State to revoke
their visas. Our recommendations are designed to ensure that persons
whose visas have been revoked because of potential terrorism concerns
be denied entry to the United States and those who may already be in
the United States be investigated to determine if they pose a security
threat. State's comments are reprinted in appendix VII. The State
Department also provided technical comments that we have incorporated
in the report where appropriate.
The Department of Justice did not provide official comments on the
report. However, it did make technical comments that we incorporated in
the report where appropriate.
:
We are sending copies of this report to other interested Members of
Congress. We are also sending copies to the Secretary of Homeland
Security, the Secretary of State, and the Attorney General. We will
make copies available to others upon request. In addition, the report
will be available at no charge on the GAO Web site at http://
www.gao.gov.
If you or your staff have any questions about this report, please
contact me at (202) 512-4128. Key contributors to this report were John
Brummet, Judy McCloskey, Kate Brentzel, Mary Moutsos, and Janey Cohen.
Signed by:
Jess T. Ford Director, International Affairs and Trade:
[End of section]
Appendixes:
Appendix I: Scope and Methodology:
The scope of our work covered the interagency process in place for
visas revoked by the Department of State headquarters and overseas
consular officers on the basis of terrorism concerns between September
11, 2001, and December 31, 2002. To assess the policies and procedures
governing the visa revocation process, we interviewed officials from
State, the Immigration and Naturalization Service (INS), and the
Federal Bureau of Investigation (FBI) and reviewed relevant documents.
To evaluate the effectiveness of the actual visa revocation process, we
relied on data provided by State's Visa Office to determine the total
number of visa revocations from September 11, 2001, through December
31, 2002. Visa Office officials provided us with the names of 240
individuals whose visas were revoked during that time. These officials
were able to provide documentation on the revocation for 238 of the 240
individuals. They gave us database sheets from the Consular
Consolidated Database, which provided us with the individuals' names,
biographic data such as dates and places of birth, passport numbers,
and visa information such as issuing posts and types of visa. In 5
cases, the database sheets did not indicate that the person held a
valid visa at the time of revocation. We kept these cases in our scope
because State provided us with revocation cables for these individuals,
indicating that it had revoked at least one visa for them. State's Visa
Office also provided us with 238 revocation cables. We also compared
information in the revocation cable with information contained in
revocation certificates.
To determine if, and when, State notified INS of the revocations, we
asked the Visa Office to provide us with documentation to show that
either the visa revocation was faxed to the INS Lookout Unit or that
the revocation cables were sent to INS. State did not have
documentation that it had faxed any of the certificates. Through
examining the cables, we determined which ones were addressed to INS
and when they were sent. To determine if, and when, INS received these
notifications, we asked the INS Lookout Unit for copies of the
revocation certificates and cables it received for each of the 240
cases. In cases where the Lookout Unit had received a faxed copy of the
revocation certificate, we collected copies of the certificates and
examined the time/date stamp on these documents to determine when State
faxed it to INS. In cases where the Lookout Unit had received a copy of
the revocation cable, we collected copies of these cables and examined
handwritten notations on the cables that reflected when they were
received at the unit.
To determine if, and when, State notified the FBI of the revocations,
we examined copies of the revocation cables we received from State to
determine (1) if the FBI was included as an addressee on the cable and
(2) the date that the cable was sent. To determine whether the FBI had
received these cables, we interviewed FBI officials from the Office of
Intelligence, the National Namecheck Program, and the Counterterrorism
Division.
We obtained information from State, INS, and the FBI to determine if,
and when, they posted lookouts on the individuals with revoked visas on
their agencies' terrorist watch lists. We asked State to provide us
with the lookouts they posted for each individual in the Consular
Lookout and Support System (CLASS). A CLASS operator entered the
individual's name, date and place of birth, and nationality in the same
way that these data were listed on the revocation cable or certificate
and gave us the printouts reflecting all of the CLASS records for that
entry. We examined the records to ascertain whether, and when, the
department entered the individual into CLASS and what refusal code was
used.
To determine what steps INS took to post lookouts on the individuals
with revocations, we provided the Lookout Unit with the list of 240
individuals and requested copies of the revocation lookouts from the
Interagency Border Inspection System (IBIS). We examined these records
to assess whether, and when, the INS Lookout Unit posted a lookout on
the individuals.
To assess the FBI's action to post lookouts on these individuals, we
interviewed officials from the Office of Intelligence to determine
whether any units posted lookouts as a result of receiving notification
of the revocations.
To assess INS's and the FBI's actions to investigate; locate; and,
where appropriate, clear, remove, or prosecute the individuals who may
have entered the United States, we first reviewed INS entry/exit data
to determine how many individuals entered the country, either before or
after revocation, and how many may still remain in the country. The INS
Lookout Unit provided us with all records available from the
Nonimmigrant Information System (NIIS) on each of the 240 individuals.
This system records arrivals of foreign citizens through the collection
of an I-94 form. Some aliens are required to fill out and turn in these
forms to inspectors at air and sea ports of entries, as well as at land
borders. Canadians and U.S. permanent residents are not required to
fill out I-94 forms when they enter the United States. Aliens keep one
section of the I-94 with them during their stay in the United States
and are required to turn this in when they depart the country. If
aliens fail to turn in the bottom portion of their I-94s when they
depart, NIIS will not have departure information for them. Where
available, we supplemented NIIS data with information regarding certain
cases from INS's National Security Unit and from the State Department's
CLASS records. We received additional arrival data on the individuals
in late May 2003 but have not been able to fully evaluate them for this
report. We also interviewed INS and FBI officials to discuss what
actions they had taken to investigate; locate; and, where appropriate,
clear, remove, or prosecute those individuals who may remain in the
United States.
We attempted to review the evidence on which State based the
revocations for a subset of the 240 visa revocations. We could not do
so, however, because the sources of the information--the Central
Intelligence Agency and the FBI--did not grant us access to this
information.
We conducted our work from December 2002 through May 2003, in
accordance with generally accepted government auditing standards.
[End of section]
Appendix II: Legal Process for Visa Revocations:
Authority to Revoke Visas:
The legal process for revocations can begin either with the Secretary
of State, the consular officer, or an immigration officer. Under the
Immigration and Nationality Act (INA), the Secretary of State has the
discretionary authority to revoke a visa previously issued to an
alien.[Footnote 26] The Secretary of State has delegated this
discretionary authority to the Deputy Assistant Secretary for Visa
Services. According to State officials, the department's discretionary
revocation authority is an important and useful tool for State to use
to send questionable aliens back to the consulates to undergo more
scrutiny as they reapply for new visas.
Consular officers may revoke a visa in instances prescribed by
regulation (22 CFR § 41.122). Such instances include if (1) the
consular officer finds that the alien is no longer entitled to
nonimmigrant status specified in the visa; (2) the alien has, since the
time that the visa was issued, become ineligible to receive a visa
under the INA; or (3) the visa has been physically removed from the
passport in which it was issued. Moreover, regulations also allow
immigration officers to revoke visas under certain circumstances (22
CFR § 41.122). For example, an immigration officer at a port of entry
may revoke a visa if the officer notifies the alien that he or she
appears to be inadmissible to the United States and the alien requests
and is granted permission to withdraw the application for admission.
Timing and Effect of Visa Revocations:
If an alien arrives at a port of entry in the United States and learns
that his visa has already been revoked, as was the case with some of
the revocations that we reviewed, then the alien is deemed inadmissible
and the INS agent can deny the alien admission into the United States.
The authority to refuse admission to such aliens is done under the
expedited removal process allowed under section 235 of the INA. Under
section 212(a)(7)(B) of the INA, an alien is inadmissible if he does
not have a valid passport, nonimmigrant visa, or border crossing
identification card at the time of application for admission. Under the
INA's expedited removal process, if an alien is inadmissible under
section 212(a)(7), the inspection officer may order the alien removed
from the United States, without further hearing or review, unless the
alien can demonstrate a credible fear of returning to his home country.
If, however, the alien is already in the country when his visa is
revoked, then INS is not authorized to simply send the alien home, as
it could have done had the alien arrived at the port of entry with the
revoked visa. Rather, if INS determines that the alien falls within the
class of aliens who are removable on the grounds specified in the
INA,[Footnote 27] INS may institute removal proceedings against the
alien. Such proceedings could be based either on an immigration
violation after admission[Footnote 28] or on the evidence relating to
the reason for the visa revocation, such as terrorist-related
activities. However, INS officials said that in many of these cases,
INS does not receive much evidence in support of the terrorist charge
when they receive a revocation from State. Without sufficient evidence,
INS cannot institute removal proceedings against these aliens.
Revocation of a visa is not a stated grounds for removal under the INA.
However, the issue of whether a visa revocation, after an alien is
admitted on that visa, has the effect of rendering the alien out-of-
status is unresolved legally, according to officials in the Department
of Homeland Security's Office of the Principal Legal Advisor to the
Bureau of Immigration and Customs Enforcement and the Bureau of
Citizenship and Immigration Services. These officials said that the
language that the State Department has been using on visa revocation
certificates effectively forecloses the U.S. government from litigating
the issue. The revocation certificates state that the revocation shall
become effective immediately on the date the certificate is signed.
However, if the alien is present in the United States at that time, it
will become effective immediately upon the alien's departure from the
United States. Homeland Security officials said that if State were to
cease using this language on the revocation certificates, the
government would no longer be effectively barred from litigating the
issue, and, if a policy decision were made to pursue an aggressive
litigation strategy, the government could seek to remove aliens who
have been admitted but have subsequently had their visas revoked.
The Legal Process for Removing an Alien Who Is Already in the Country:
If INS does receive sufficient evidence to support a removal charge
against an alien and chooses to initiate removal proceedings, then the
alien is afforded certain due process rights under the INA. For
example, section 240 of the INA states that an immigration judge shall
conduct proceedings to determine if an alien is removable. During such
proceedings, the alien is afforded rights that include being apprised
of the charges against him and the basis for them, having a reasonable
opportunity to examine the evidence against him, presenting evidence on
his behalf, having the opportunity to cross-examine witnesses presented
by the government, and filing administrative and judicial appeals.
Moreover, during such removal proceedings, once an alien establishes
that he was admitted to the United States as a nonimmigrant, the
government has the burden of proof to establish by clear and convincing
evidence that the alien is removable.[Footnote 29]
Initiating such proceedings against an alien whose visa has been
revoked on the basis of terrorist-related activities can be
challenging, according to INS attorneys. At some point in the
proceedings, either in establishing that the alien is removable or at
the time the alien requests to be released on bond, the government
could be called on to disclose any classified or law enforcement
sensitive information that serves as the basis of the charges against
the alien. According to INS attorneys, this can be challenging since
many times the law enforcement or intelligence agencies that are the
source of the information may not authorize the release of that
information because it could jeopardize ongoing investigations or
reveal sources and methods.
In addition to the general removal proceedings, the INA also contains
special removal proceedings for alien terrorists.[Footnote 30] These
proceedings are reserved for alien terrorists as described in section
237 (a)(4)(B) of the INA and take place before a special removal court
comprised of federal court judges. Such proceedings are triggered when
the Attorney General certifies to the removal court that the alien is a
terrorist, that he is physically present in the United States, and that
using the normal removal procedures of the INA would pose a risk to the
national security of the United States. If the court agrees to invoke
the special removal procedures, then a hearing is held before the
removal court. Special provisions are made for the use of classified
information in such proceedings to minimize the risk of its disclosure.
However, similar to the removal proceedings under section 240, the
alien has the right to appeal a decision by the removal court.
According to INS officials, this court has never been used since its
inception in 1996.
[End of section]
Appendix III: Detailed Information on Revoked Visas:
This appendix provides information on nonimmigrant visas that the State
Department revoked on terrorism grounds from September 11, 2001,
through December 31, 2002--specifically, the nationality of the
individuals whose visas were revoked and the types of visas that were
revoked.
As shown in table 1, the individuals holding visas that the State
Department revoked on terrorism grounds came from at least 39
countries. Five countries--Saudi Arabia, Iran, Egypt, Pakistan, and
Lebanon--accounted for 53 percent of these individuals. Overall, most
of the 240 people were citizens of countries in the Near East and North
Africa region.
Table 1: Number of Individuals Whose Visas Were Revoked on Terrorism
Grounds, by Region and Nationality (Sept. 11, 2001, through Dec. 31,
2002):
Region/Nationality: Africa.
Region/Nationality: Kenya; Number of individuals: 1;
Region/Nationality: Sudan; Number of individuals: 2;
Region/Nationality: Subtotal; Number of individuals: 3.
Region/Nationality: East Asia and Pacific.
Region/Nationality: Indonesia; Number of individuals: 8;
Region/Nationality: Malaysia; Number of individuals: 3;
Region/Nationality: Subtotal; Number of individuals: 11.
Region/Nationality: Europe and Eurasia.
Region/Nationality: Armenia; Number of individuals: 2;
Region/Nationality: Austria; Number of individuals: 1;
Region/Nationality: Bosnia and Herzegovina; Number of individuals: 1;
Region/Nationality: Croatia; Number of individuals: 1;
Region/Nationality: Greece; Number of individuals: 1;
Region/Nationality: Netherlands; Number of individuals: 3;
Region/Nationality: Romania; Number of individuals: 2;
Region/Nationality: United Kingdom;
Region/Nationality: Subtotal; Number of individuals: 12.
Region/Nationality: Near East and North Africa.
Region/Nationality: Algeria; Number of individuals: 3;
Region/Nationality: Bahrain; Number of individuals: 2;
Region/Nationality: Egypt; Number of individuals: 21;
Region/Nationality: Iran; Number of individuals: 22;
Region/Nationality: Jordan; Number of individuals: 9;
Region/Nationality: Kuwait; Number of individuals: 4;
Region/Nationality: Lebanon; Number of individuals: 17;
Region/Nationality: Morocco; Number of individuals: 6;
Region/Nationality: Oman; Number of individuals: 2;
Region/Nationality: Qatar; Number of individuals: 2;
Region/Nationality: Saudi Arabia; Number of individuals: 50;
Region/Nationality: Syria; Number of individuals: 7;
Region/Nationality: Tunisia; Number of individuals: 1;
Region/Nationality: United Arab Emirates; Number of individuals: 12;
Region/Nationality: Yemen; Number of individuals: 2;
Region/Nationality: Subtotal; Number of individuals: 160.
Region/Nationality: South Asia.
Region/Nationality: Afghanistan; Number of individuals: 2;
Region/Nationality: Bangladesh; Number of individuals: 3;
Region/Nationality: India; Number of individuals: 3;
Region/Nationality: Pakistan; Number of individuals: 18;
Region/Nationality: Subtotal; Number of individuals: 26.
Region/Nationality: Western Hemisphere.
Region/Nationality: Brazil; Number of individuals: 2;
Region/Nationality: Colombia; Number of individuals: 7;
Region/Nationality: Cuba; Number of individuals: 2;
Region/Nationality: El Salvador; Number of individuals: 1;
Region/Nationality: Mexico; Number of individuals: 4;
Region/Nationality: Panama; Number of individuals: 1;
Region/Nationality: Paraguay; Number of individuals: 5;
Region/Nationality: Uruguay; Number of individuals: 1;
Region/Nationality: Subtotal; Number of individuals: 23.
Region/Nationality: Unknown; Number of individuals: 5.
Region/Nationality: Total; Number of individuals: 240.
[End of table]
Table 2 provides information on the types of visas that the State
Department revoked on terrorism grounds. About 70 percent of the visas
were for temporary visits for business, pleasure, or both. Seven of
these visas were in the form of border crossing cards for Canada and
Mexico.
Table 2: Number of Visa Revocations, by Class and Type of Visa Revoked:
Visa class: Business/Pleasure.
Visa class: B1; Type of visa: Temporary visitor for
business; Number of revocations: 5.
Visa class: B1/B2; Type of visa: Temporary visitor
for business and pleasure; Number of revocations:
135.
Visa class: B1/B2/BBBCC; Type of visa: Border
crossing card (Mexico); Number of revocations: 3.
Visa class: B2; Type of visa: Temporary visitor for
pleasure; Number of revocations: 19.
Visa class: BCC; Type of visa: Border crossing card
(Canada); Number of revocations: 4.
Visa class: Subtotal; Number of revocations: 166.
Visa class: Other.
Visa class: A1; Type of visa: Ambassador, public
minister, or career diplomat or consular officer, immediate family;
Number of revocations: 1.
Visa class: 2; Type of visa: Other foreign
government official or employee, or immediate family; Number of
revocations: 2.
Visa class: C1/D; Type of visa: Combined transit and
crewman visa; Number of revocations: 7.
Visa class: D; Type of visa: Crewmember (sea or
air); Number of revocations: 7.
Visa class: E2; Type of visa: Treaty investor,
spouse or child; Number of revocations: 3.
Visa class: F1; Type of visa: Student; Number of
revocations: 26.
Visa class: H1B; Type of visa: Alien in a specialty
occupation (profession); Number of revocations: 9.
Visa class: H3; Type of visa: Trainee; Number of
revocations: 1.
Visa class: J-1; Type of visa: Exchange visitor;
Number of revocations: 5.
Visa class: L1; Type of visa: Intracompany
transferee; Number of revocations: 1.
Visa class: L2; Type of visa: Spouse or child of
intracompany transferee; Number of revocations: 1.
Visa class: M1; Type of visa: Vocational or other
nonacademic student; Number of revocations: 6.
Visa class: M2; Type of visa: Spouse or child of M-
1; Number of revocations: 1.
Visa class: P1; Type of visa: Internationally
recognized athlete or member of internationally recognized
entertainment group; Number of revocations: 2.
Visa class: Subtotal; Number
of revocations: 72.
Visa class: Unknown; Number
of revocations: 2.
Visa class: Total; Number of
revocations: 240.
[End of section]
Appendix IV: Example of a Revocation Cable the Department of State Sent
to the INS and the FBI:
UNCLASSIFIED:
Cable Text: UTE7045 ORIGIN VO-03:
INFO LOG-00 NP-00 CIAE-00 COME-00 FBIE-00 UTED-00 TEDE-00 INR-00 INSE-
00 NEA-00 NSAE-00 IRM-00 TEST-00 SAS-00 /003R:
140439;
SOURCE: [BLACKED OUT]; [BLACKED OUT].
DRAFTED BY: CA/VO/L/A: --07/18/02; [BLACKED OUT].
APPROVED BY: CA/VO: [BLACKED OUT].
CA/VO/L: CA/VO/L/C: CA/VO: [BLACKED OUT].
INR/IC: (INFO); [BLACKED OUT].
------------------CEBB02; 222329Z.
P 222324Z JUL 02 FM SECSTATE WASHDC TO AMEMBASSY ABU DHABI PRIORITY:
/38:
UNCLAS STATE: [BLACKED OUT]
E.O. 12958: N/A TAGS: CVIS [BLACKED OUT]
( SUBJECT: N0089322; CERTIFICATE OF
REVOCATION:
REF: (A) VISTA N0089322, (B) ABU DHABI 630:
1. THIS IS AN ACTION MESSAGE. PLEASE SEE PARAGRAPH 5.
2. ON JULY 18, THE DEPARTMENT REVOKED ANY AND ALL:
VISAS HELD BY [BLACKED OUT], DPOB: [BLACKED OUT]UNITED ARAB EMIRATES,
ON THE GROUNDS THAT HE MIGHT BE INELIGIBLE FOR A VISA UNDER INA 212
(A)(3).
3. FOLLOWING IS THE TEXT OF THE CERTIFICATE OF REVOCATION SIGNED BY
DEPUTY ASSISTANT SECRETARY OF STATE FOR VISA SERVICES
[BLACKED OUT] ON 18 JULY 2002
AND SENT TO THE IMMIGRATION AND NATURALIZATION SERVICE ON 18 JULY 2002.
4. QUOTE THIS IS TO CERTIFY THAT I, THE UNDERSIGNED DEPUTY ASSISTANT
SECRETARY OF STATE FOR VISA SERVICES, ACTING IN PURSUANCE OF THE
AUTHORITY CONFERRED BY SECTION 221(1) OF THE IMMIGRATION AND
NATIONALITY ACT (8 U.S.C. 1201(1)), AND BY DELEGATION OF AUTHORITY NO.
74 AND BY REDELEGATION OF AUTHORITY NO. 74-3-A, HEREBY REVOKE ANY AND
ALL NONIMMIGRANT VISAS THAT MAY BE HELD BY: [BLACKED OUT]
DPOB: [BLACKED OUT], UNITED ARAB EMIRATES.
THIS ACTION IS BASED ON THE FACT THAT SUBSEQUENT TO VISA ISSUANCE, IT
WAS DETERMINED THAT THE ALIEN MAY BE
INELIGIBLE FOR A VISA UNDER SECTION 212 (A)(3) OF THE INA (8 U.S.C.
1182(A)(3)), SUCH THAT THE ALIEN SHOULD BE REQUIRED TO REAPPLY FOR A
VISA TO ESTABLISH HIS ELIGIBILITY BEFORE A U.S. CONSULAR OFFICER.
THIS REVOCATION SHALL BECOME EFFECTIVE IMMEDIATELY, UNLESS THE ALIEN IS
CURRENTLY IN THE UNITED STATES, IN WHICH CASE IT SHALL BECOME EFFECTIVE
ON THE DATE ON WHICH THE ALIEN NEXT DEPARTS THE UNITED STATES. UNQUOTE.
5. PER THE INSTRUCTIONS IN REF C, POST IS REQUESTED TO NOTIFY THE
APPLICANT, IF POSSIBLE, THAT HIS VISA HAS BEEN REVOKED. POST SHOULD TRY
TO PHYSICALLY CANCEL THE VISA. POST MUST THEN REPORT THE RESULTS OF ITS
EFFORTS TO THE DEPARTMENT VIA CABLE, AND ALSO VIA E-MAIL, TO
[BLACKED OUT]
6. BECAUSE THIS IS A PRUDENTIAL REVOCATION, APPLICANT MAY REAPPLY IF HE
DESIRES. POST SHOULD THEN SUBMIT A SECURITY ADVISORY OPINION TO THE
DEPARTMENT BEFORE TAKING ANY ACTION ON THE APPLICATION. ASSISTANCE
APPRECIATED.
POWELL:
End Cable Text:
[End of section]
Appendix V: Sample of a Revocation Certificate the Department of State
Sent to the Immigration and Naturalization Service Lookout Unit:
United States Department of State Washington, D. C. 20510:
CERTIFICATE OF REVOCATION:
This is to certify that 1, the undersigned Deputy Assistant Secretary
of State for Visa Services, acting pursuant to the authority conferred
on the Secretary of State by Section 221(1) of the Immigration and
Nationality Act (8 U.S.C. 1201(1)), which has been delegated to the
Assistant Secretary of State for Consular Affairs and to me by
delegation of Authority No. 74 and redelegation of Authority No. 74-3-
A, hereby revoke any and all non-immigrant visas that may be held by
[name, date and place of birth].
This revocation is based on the fact that, subsequent to visa issuance
information has been discovered indicating that the alien may be
inadmissible to the United States and ineligible to receive a visa
under Section 212(a)(3) of the Immigration and Nationality
Act, such that the alien should be required to re-appear before a U.S.
Consular Officer to establish his eligibility for a visa before being
permitted to apply for entry to the United States.
This revocation shall become effective immediately on the date on which
this certificate is signed unless the alien is present in the United
States at that time, in which case it will become effective immediately
upon the alien's departure from the United States.
Date [name of Deputy Assistant Secretary]
[End of section]
Appendix VI: Comments from the Department of Homeland Security:
U.S. Department of Homeland Security:
June 11, 2003:
Jess T. Ford:
Director, International Affairs and Trade U.S. General Accounting
Office:
441 G St., NW Washington, DC 20548:
Dear Mr. Ford:
Thank you for the opportunity to review your draft report, "BORDER
SECURITY: New Policies and Procedures Needed to Fill Gaps in the Visa
Revocation Process," GAO-03-798.
I appreciate the efforts of the GAO to work with and accept many of the
informal comments from my staff. I also understand that the GAO has
considered the technical comments we provided and incorporated many of
them into the final report. I agree that the visa revocation process
needs to be strengthened as an antiterrorism tool. I look forward to
working with the Departments of State and Justice to develop and revise
current policies and procedures that affect the interagency visa
revocation process.
If you have any questions concerning this response, please contact C.
Stewart Verdery, Jr., Senior Advisor, as (202) 282-8471.
Asa Hutchinson
Undersecretary
Border and Transportation Security Directorate:
Signed by Asa Hutchinson
[End of section]
Appendix VII: Comments from the Department of State:
United States Department of State:
Washington, D.C. 20520:
June 10, 2003:
Dear Ms. Westin:
We appreciate the opportunity to review your draft report, "BORDER
SECURITY: New Policies and Procedures Needed to Fill Gaps in the Visa
Revocation Process," GAO-03-798, GAO Job Code 320172.
The enclosed Department of State comments are provided for
incorporation with this letter as an appendix to the final report.
If you have any questions concerning this response, please contact Hale
Vankoughnett, Bureau of Consular Affairs, at (202) 663-1152.
Christopher B. Burnham
Assistant Secretary and Chief Financial Officer:
Signed by Christopher B. Burnham:
Enclosure:
As stated.
cc: GAO/IAT - John Brummet State/OIG - Luther Atkins State/CA - Maura
Harty:
Ms. Susan S. Westin, Managing Director, International Affairs and
Trade, U.S. General Accounting Office.
Department of State Comments on the Draft Report Border Security: New
Policies and Procedures Needed to Fill Gaps in the Visa Revocation
Process (GAO Code 320172):
State appreciates the opportunity to offer some clarification of the
visa revocation process and the issues touched on in the draft report
"Border Security: New Policies and Procedures Needed to Fill Gaps in
the Visa Revocation Process" (Job Code 320172).
The report focuses on 240 visas that were prudentially revoked by the
Department of State pursuant to the Secretary of State's authority
under Section 221(1) of the Immigration and Nationality Act. We believe
it is very important that all concerned parties understand the
character of these visa revocations. It is not accurate, nor fair to
the persons who held these visas to suggest that all of the persons
whose visas were revoked were terrorists or suspected terrorists.
Unlike consular officers, the Secretary of State or the Deputy
Assistant Secretary for Visa Services as his designee may revoke a visa
on a prudential basis, without a finding of inadmissibility. (In
contrast, Department of State regulations permit consular officers to
revoke a visa only if they find an alien to be inadmissible, and
therefore ineligible for a visa, under the INA or other relevant law.)
Such revocations often are undertaken because some information has
surfaced that may disqualify the individual from a visa or from
admission to the U.S., or that in any event warrants reconsideration of
the individual's visa status. The information available at the time of
a prudential revocation is often insufficient by itself to support a
formal finding of inadmissibility. In some cases, for example, it may
not be clear whether the available intelligence relates to the visa
holder.
A prudential visa revocation thus constitutes a precautionary measure
to preclude an alien from gaining admission to this country until his
or her entitlement to a visa can be reestablished. It precludes
admission to the United States unless the alien reapplies for a visa.
At the time of any such subsequent visa application, there is an
opportunity to explore fully the alien's qualifications for a visa.
Identity issues can often be resolved, and in addition the new visa
application triggers a more thorough analysis of the intelligence
reporting on the individual, which is assessed along with the
information obtained in connection with the new application and any
interview. Often at the time of the subsequent visa application, the
information that initiated a revocation is found not to relate to the
individual whose visa was revoked.
The 240 revocations that are focused on in this report involved two
broad classes of cases: 1) cases involving individuals about whom the
State Department (through its Bureau of Intelligence and Research)
received potentially derogatory information from
the intelligence or law enforcement community, and 2) 105 visa cases in
which the FBI did not respond to the Department in a timely fashion
regarding security clearances. In the first class of cases, the
Department decided, after analysis of intelligence reporting, that the
available information was sufficient to warrant precautionary
revocation of the visas. As explained above, however, it cannot be
assumed that the individual visa holder
in fact is ineligible for a visa. The second class differs greatly from
the first. A new interagency clearance program, known as Visas Condor,
was established in January 2002 for counter-terrorism purposes. The
participating agencies agreed to review visa cases on a "clock" basis,
meaning that the consular officer would be free to issue the visa
absent a "hold" request from another agency (relayed through the
Department) within 30 days. A "hold" request did not necessarily imply
that the applicant was ineligible, but rather indicated a desire for
more time in light of possible agency interest. Given a "hold" request,
the Department would then instruct the post to hold the visa
application in abeyance pending resolution. Subsequent to institution
of these procedures, the number of the visa condor cases overwhelmed
resources and the clearing agencies did not possess the capacity to
review all cases within the 30-day period. Once we became aware of this
problem, we eliminated the 30-day clock. We also revoked all visas that
had been issued pursuant to standard procedures but in which a clearing
agency had in effect requested a "hold" after the 30-day period. The
revocation of these 105 visas was precautionary and simply restored the
cases to their "pending clearance" status. Thus, it does these visa
applicants a disservice to suggest that they were terrorists or even
suspected terrorists. In fact, a number of these cases were later
cleared by the Foreign Terrorist Tracking Task Force of the FBI.
We believe it is also important that the GAO understand the reasons for
the language used in the certificate of revocation. As the study
pointed out, the certificate indicates that the revocation is effective
immediately unless the person is in the United States, in which case
the revocation is effective upon the person's departure from the United
States. This longstanding practice has its roots in legal
considerations, including the respective authorities of the Immigration
and Naturalization Service (now the Department of Homeland Security)
and the Department of State and litigation risks. It was reviewed by
the INS General Counsel and the State Department in 1999 in
consultation with the Justice Department's Office of Immigration
Litigation. After that review, INS and State agreed that the Secretary
of State's authority to revoke should continue to be administered as
reflected in the certificate.
More recently, at the request of DHS, the Department agreed, subject to
establishment of clear interagency procedures, to consider revoking
visas effective immediately in potential security cases involving
persons who are undergoing inspections at ports of entry and have not
yet been admitted. DHS did not ask the Department to change the
effective date of its visa revocations in cases of aliens already
admitted to the United States. As the GAO report notes, lack of a valid
visa is not a ground for removal from the United States. Indeed, many
aliens enter the United States on single-entry visas and thus
inherently have no valid visa after admission. They are nevertheless in
lawful status if in compliance with the conditions of admission imposed
by the Department of Homeland Security (the conditions being duration
of and purpose of stay). Thus, the only reason to change the effective
date of the Department's visa revocations in cases of aliens already
admitted to the United States would be to test the ability of the
Executive branch to remove an alien who has been admitted to the United
States on a valid visa that was subsequently revoked effective
retroactively; i.e., to the time of admission or of visa issuance).
This would entail instituting removal proceedings under Section 237 of
the INA on the ground that the alien was inadmissible at time of entry.
Such an approach would require taking the position that the alien as a
matter of law entered without a valid
visa because after admission his visa was revoked under INA section
222(1) retroactive to a time prior to admission. Neither State nor any
of the other concerned agencies have to our knowledge wished to
undertake such a course of action, with its attendant litigation risks.
GAO Comments:
The following are GAO's comments on the Department of State's letter
dated June 10, 2003.
1. The scope of our review covered all visas revoked on terrorism
concerns by the State Department, including headquarters officials and
State's overseas consular officers, from September 11, 2001, through
December 31, 2002. State Department officials determined that the total
universe of such revocations consisted of 240 cases during that period
and provided documentation for almost all of them. Headquarters
officials, acting under the authority of the Secretary of State,
revoked the visas in all of the cases. As noted in State's comments, in
none of the cases did State believe that it had sufficient evidence to
support a formal finding of inadmissibility; thus, all of the
revocations were done as a precautionary measure.
2. Pages 10 and 11 of our report includes information on this matter.
3. We agree that these individuals may not be terrorists. However, the
State Department has revoked their visas because of terrorism concerns.
Our recommendations are designed to ensure that persons whose visas
have been revoked because of potential terrorism concerns be denied
entry to the United States and those that may already be in the United
States be investigated to determine if they pose a security threat.
4. The Departments of State and Homeland Security have different views
on this issue. Homeland Security believes that the language that the
State Department has been using on visa revocation certificates
effectively forecloses the U.S. government from litigating the issue of
whether a visa revocation has the effect of rendering the individual as
out-of-status (see p. 25 of our report). Our recommendations, if
implemented, would help resolve these conflicting views.
(320172):
FOOTNOTES
[1] Office of Homeland Security, National Strategy for Homeland
Security (Washington, D.C.: July 2002).
[2] U.S. General Accounting Office, Border Security: Visa Process
Should be Strengthened as an Antiterrorism Tool, GAO-03-132NI
(Washington, D.C.: Oct. 21, 2002).
[3] In this report, we use the term "visa" to refer to nonimmigrant
visas only. The United States also grants visas to people who intend to
immigrate to the United States. A visa is a travel document that allows
a foreign visitor to present himself or herself at a port of entry for
admission to the United States. Citizens of 27 countries that
participate in the Visa Waiver Program, Canada, and certain other
locations are not required to obtain visas for business or pleasure
stays of short duration. See GAO-03-132NI for more information on the
visa adjudication process and U.S. General Accounting Office, Border
Security: Implications of Eliminating the Visa Waiver Program, GAO-03-
38 (Washington, D.C.: Nov. 22, 2002), for more information on the Visa
Waiver Program.
[4] On March 1, 2003, INS became part of three units within the
Department of Homeland Security. INS inspection functions transferred
to the Bureau of Customs and Border Protection; its investigative and
enforcement functions transferred to the Bureau of Immigration and
Customs Enforcement; and its immigration services function became part
of the Bureau of Citizenship and Immigration Services. Because our work
focused on visa revocation cases that took place before the March 1
reorganization, our report refers to the U.S. government's immigration
agency as "INS."
[5] These watch lists are automated databases that contain information
about individuals who are known or suspected terrorists so that these
individuals can be prevented from entering the country, apprehended
while in the country, or apprehended as they attempt to exit the
country. Specific entries on watch lists are sometimes referred to as
"lookouts."
[6] The State Department also revokes visas for reasons other than
terrorism, such as alien smuggling, drug trafficking, and
misrepresentation. State Department officials told us that visas
revoked on terrorism grounds represent a significant portion of all
revoked visas, but they did not have data available on this matter.
[7] This number is based on our analysis of data we received from INS
as of May 19, 2003. On May 20 and 21, INS and the FBI, respectively,
provided additional information related to this matter. We were not
able to complete anlaysis of the data prior to the release of this
report due to the nature and volume of the data. The data could show
that the actual number of persons is higher or lower than 30.
[8] The Attorney General's Guidelines on General Crimes, Racketeering
Enterprise and Terrorism Enterprise Investigations provide for
graduated levels of investigative activity by the FBI, allowing the
bureau to act well in advance of the commission of planned terrorist
acts or other federal crimes. The three levels of investigative
activity defined in the guidelines are (1) the prompt and extremely
limited checking of initial leads, (2) preliminary inquiries, and (3)
full investigations. In this report, we are not prescribing which level
of investigative activity is appropriate for persons with revoked visas
who may be in the United States.
[9] We found no evidence of written procedures that define timeliness,
but State officials told us that they try to send notification to the
Lookout Unit the same day the revocation certificate is signed.
[10] 8 U.S.C. § 1101 et seq. The 1952 Immigration and Nationality Act
has been amended several times, more recently by the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (P.L. 104-
208), the Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of
2001 (P.L. 107-56), the Enhanced Border Security and Visa Entry Reform
Act of 2002 (P.L. 107-173), and the Homeland Security Act of 2002 (P.L.
107-296).
[11] See section 428 of the Homeland Security Act of 2002.
[12] For purposes of this report, we define the term "foreign visitors"
to mean nonimmigrant visa holders.
[13] The U.S. government has initiated a number of programs to register
and monitor some categories of nonimmigrants--including foreign
students and exchange visitors, as well as certain citizens of selected
countries--during their visits to the United States.
[14] According to Department of Homeland Security officials, the
Departments of State and Homeland Security are negotiating a memorandum
of understanding to address the scope of this authority and the manner
in which the two agencies will coordinate visa issuance.
[15] For more information on the overall border security process and
the associated terrorist watch lists, see U.S. General Accounting
Office, Information Technology: Terrorist Watch Lists Should Be
Consolidated to Promote Better Integration and Sharing, GAO-03-322
(Washington, D.C.: Apr. 15, 2003).
[16] The Departments of State and Justice hold different views on
whether evidence of a specific act of terrorism is required before a
visa can be denied under the INA's terrorism provision (GAO-03-132NI).
In July 2002, an Associate Deputy Attorney General told us that (1) the
State Department applies too high a standard of evidence to deny a visa
under that provision and (2) name checks provide sufficient evidence to
deny a visa to applicants. According to Homeland Security officials,
this dispute between the two departments had not been resolved as of
June 2003.
[17] Section 221(i) of the INA gives the Secretary of State and
consular officers discretionary authority to revoke a visa. INA section
212(a)(3)(B) contains the grounds that an alien can be deemed
inadmissible to the United States for terrorist-related activities.
Consular officers may revoke a visa in instances prescribed by
regulation (22 CFR § 41.122). Such instances include if (1) the
consular officer finds that the alien is no longer entitled to
nonimmigrant status specified in the visa; (2) the alien has, since the
time that the visa was issued, become ineligible to receive a visa
under the INA; or (3) the visa has been physically removed from the
passport in which it was issued. Moreover, regulations also allow
immigration officers to revoke visas under certain circumstances (22
CFR § 41.122).
[18] In 105 of these 240 cases, the FBI did not complete a new special
clearance procedure for certain visa applicants in a timely manner. The
U.S. government instituted this new clearance procedure, known as the
Visas Condor name check, in late January 2002 as a means of identifying
and denying visas to suspected terrorists. In the 105 cases, State had
to revoke the visas because the consular officers had already issued
the visas before the FBI had indicated any interest in the cases. In
July 2002, the State Department and the FBI changed the Visas Condor
procedures to ensure that consular officers do not issue visas to the
Visas Condor applicants until the FBI clears them. See GAO-03-132NI for
more information on delays in, and changes to, the Visas Condor name
check procedures. In the remaining 135 cases, State revoked the visas
based on potentially derogatory intelligence information, that might
eventually lead to a finding of inadmissibility under the INA, if that
information was found to pertain to the individual in question.
[19] It is possible for an individual to present to an immigration
inspector a revoked visa that appears to be valid, if the visa had not
been physically cancelled by writing or stamping across the face of the
visa to indicate that it had been revoked.
[20] In 228 cases, the State Department included the FBI as an
addressee on the revocation cable.
[21] Revocation lookouts posted by State officials in CLASS prior to
August 15, 2002, were coded with either a "00" (indicating that a
security advisory opinion is required before a visa can be granted) or
a "P3B" (indicating that the individual might be refused a visa for
terrorist activities); IBIS did not pick up lookouts with either of
these codes in its interface with CLASS. State Department officials
said that INS elected not to receive P3B lookouts from CLASS. In
commenting on this report, Homeland Security officials told us that INS
had not asked for the P3B code to be uploaded into IBIS because State
had never told INS that it would be using the code to indicate that a
visa had been revoked on terrorism grounds.
[22] The consular post in Jeddah made VRVK entries in cases where it
was notified by the department that a visa issued at the post had been
revoked.
[23] The Lookout Unit posts lookouts on its own watch list, the
National Automated Immigration Lookout System. These lookouts are then
uploaded into IBIS every evening.
[24] We determined this number on the basis of INS data in the
Nonimmigrant Information System (NIIS), which does not have complete
arrival and departure records for all non-U.S. citizens. NIIS records
arrivals and departures of foreign citizens through the collection of
I-94 forms. Some aliens are required to fill out and turn in these
forms to inspectors at air and seaports of entries as well as at land
borders. (Canadians and U.S. permanent residents are not required to
fill out I-94 forms when they enter the United States). NIIS does not
have departure data for aliens if they fail to turn in the bottom
portion of their I-94 when they depart. In late May 2003, we received
additional data from INS and the FBI. We have not been able to fully
analyze these data due to the nature and volume of the information;
however, the data may indicate that the number is higher or lower than
30.
[25] In May 2003, an official from the Lookout Unit said that her unit
recently established a procedure in which, upon receiving notification
of a revocation, she will query INS databases to determine if the
individual recently entered the country. She will then give this
information to investigators in the Bureau of Immigration and Customs
Enforcement.
[26] See INA § 221(i) (8 U.S.C. § 1201(i)).
[27] See INA § 237 (8 U.S.C. 1227).
[28] One example of such an immigration violation would be if an alien
obtains a nonimmigrant visa and subsequently engages in unauthorized
work. Such activities would violate the alien's immigration status and
render the alien removable under section 237(a)(1)(C) of the INA.
[29] This standard is different from the standard applied to aliens
seeking admission to the United States. Such aliens bear the burden of
proof to establish that they are clearly and beyond a doubt entitled to
be admitted to the United States and that they are not inadmissible
under section 212 of the INA. See section 240 of the INA (8 U.S.C.
1229a).
[30] See the INA, §§ 501-507 (8 U.S.C. §§ 1531-1537).
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