Immigration

Will the Attempted Airliner Bombing on Christmas Change the Way in Which Visas are Issued or Revoked?

When “Undies-Bomber”, Umar Farouk Abdulmutallab, boarded Northwest Airlines Flight 253 in the Netherlands late on December 24, 2009, potentially catastrophic human and “systemic” intelligence and security-related mistakes that permitted his boarding a plane to the United States had already occurred, and a deadly terrorist act was averted due solely to a defective explosive device or the incompetence of the would-be bomber.  The New York Times provided a handy listing of the “dots” that were not connected; the missed warnings that should have been connected:

May of 2009:     The British Government rejects Mr. Abdulmutallab’s request to renew his student visa, and places him on a “watch list” to prevent his entering the country in the future.  The British had determined that the school the Mr. Abdulmutallab had claimed to attend was not a legitimate school.  This information was apparently not provided by the UK to U.S. intelligence agencies.

August of 2009:     The U.S. National Security Agency (“NSA”) intercepts communications of Al Qaeda leaders in Yemen, warning of a terror operation involving a Nigerian man.  It is unclear which other agencies might have been notified about these intercepts.
 October and November of 2009:     Mr. Abdulmutallab sends text messages (which should also have been intercepted by the NSA) to his father advising him of his radicalized Islamic beliefs, and severing ties with his family.  The father consults with Nigerian security officials, seeking their assistance in returning his son to Nigeria.  These officials refer the father to the U.S. Embassy in Nigeria.


November 19 and 20, 2009:     Mr. Abdulmatallab’s father, a wealthy and respected former Nigerian Government official and former banker, meets with U.S. Embassy and C.I.A. officials in Nigeria.  The report was deemed credible enough to open an investigation and the Embassy notified other Embassies and the US counterterrorism community. The officials sent what is known as a “Visas Viper” warning about possible terrorist inclinations to the National Counter-Terrorism Center (“N.C.T.C.”), a clearing house responsible for gathering, interpreting, and sharing information about security-related issues with other governments and government agencies.  The “Visas Viper” document references the father’s statement that his son “had fallen under the influence of religious extremists based in Yemen”, but does not expressly state that Mr. Abdulmatallab was planning an attack. Why wasn’t Mr. Abdulmutallab's existing multiple entry B-1/B-2 visitor’s visa (he had previously visited the U.S. using this visa) at least suspended until at least the investigation of the claim was completed?


November 2009:     The C.I.A. compiles a biographical profile of Mr. Abdulmutallab, including his plans to study Islamic Law in Yemen, but this profile is not shared with other governments or agencies.


November 22, 2009:     The N.C.T.C. puts Mr. Abdulmatallab’s name on the largest and most generalized terrorist watch list of over 550,000 people with possible ties to terrorism (the “Terrorist Identities Datamart Environment” list), but agency analysts decide that there is not sufficient specific threat information to move Mr. Abdulmatallab’s name to one of the smaller lists that mandate additional scrutiny and screening procedures.  Mr. Abdulmutallab’s existing visa was not in any way affected by being placed on this watch list, nor was he in any way prevented from boarding a plane to the U.S.  The terror alert level used required consular officials to flag his name for additional scrutiny if he were to apply for a visa, but there was no link to his visa history to reflect that he already had an existing valid visa.
 

December 16 – 25, 2009:     Mr. Abdulmatallab purchases his ticket in Ghana for almost $3,000 in cash, through another person, providing no emergency contact information, and requesting a window seat.  At the time of check-in, Mr. Abdulmutallab advises that he is going to the U.S. for two weeks, but he checks no luggage and has only one carry-on bag.  After flight check-in, the passenger manifest and additional details about the passenger (including assigned window seat number, and the fact that the ticket was paid for with cash and that no bags were checked) were sent to the TSA at the expected Detroit port-of-entry, but noting appeared to set off alarm bells at the TSA in Detroit.


While the Obama Administration is taking steps to tighten or eliminate some of these holes in security, one remedial suggestion is drawing the attention of immigration advocates.  There have been suggestions to remove the authority of visa application processing and adjudications from the Department of State Consular Visa Offices to a direct adjudicatory process to be performed by the Department of Homeland Security (“DHS”).  Currently, Sections 402 and 428 of the Homeland Security Act (the legislation creating and empowering the DHS) gives the DHS oversight authority over the Department of State visa process, but the DHS has chosen to exercise that authority primarily through the offices and actions of the Department of State, pursuant to a Memorandum of Understanding entered into between the Department of State and the Department of Homeland Security. 


The DHS is already scheduled in January of 2010 to take over (from the State Department) a program handling visa applications to attend U.S. flight schools (finally making an adjustment recommended several years ago by the 9/11 Commission), and there are suggestions that this should be expanded to take immediate and direct control of the Visa Waiver Program (a program available for travel without visas for up to 90 days for citizens of 35 countries, including most European countries, Australia, New Zealand, Japan and South Korea).  These suggested changes in the lines of authority for visa adjudication issues are premised on the notion that the State Department focus on foreign policy and foreign relations should no longer be a determining factor in visa adjudication, and that security should be the sole factor and concern (as if security is not somehow affected when the whole world hates your country and sees no efforts being made to improve foreign relations). 


Personally, I believe that the United States has already travelled too far down the road of equating immigration and terrorism, and a complete turnover of the visa application and adjudication process to the DHS would unnecessarily move our country further down that road, and make any comprehensive immigration reform legislation just that much harder to pass (but that is probably exactly what is intended by those advocating a complete DHS takeover of the visa application and adjudication process).


CGFNS Increases Prices for Visa Screen Certificate Service Effective January 1, 2010

The new fee structure includes increases to almost all programs. Included in the price increase are Applications for the Certification Program, the Credentials Evaluation Service, the Visa Credentials Assessment program, the Credential Verification Service for New York State and other ancillary services. The standard Visa Screen price increases to $540, from $498. The renewal Certificate price is increasing from $250 to $275.


2009 Was Not a Total Loss ---  There were Several Immigrants’ Rights Victories in this Past Year  --  List of the Top 10 as Compiled by Change.Org.


1. Death to the widow penalty
2. Lou Dobbs Deported from CNN.
3. Repeal of HIV Travel Ban
4. Wisconsin Wins Instate-Tuition for Undocumented Students
5. Health care: Congress Passes SCHIP; Removes 5 Year Wait for Legal Immigrants
6. Education Not Deportation: Immigrant Youth Fight to Halt Deportations
7. HPV Vaccines No Longer Required for most female immigrant visa applicants
8. Restrictionism Loses Steam and Those who use it as an Issue also Lose Elections
9. Asylum for Battered Women
10. Record number of Hispanic Appointees to top Administration posts

COPYRIGHT BY AUTHOR -- 2010


This article is designed to provide accurate and authoritative information in regard to the subject matter covered. It is published and distributed with the understanding that the publisher is not engaged in rendering legal, accounting or other professional service.  It is submitted for publication by the author with the understanding that each individual case is different, and this article is not a formal legal opinion and should not be relied upon as advice by the author in a particular legal situation.

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