Testimony of AILA Member Paul Virtue Regarding the Case of Hesham Mohamed Ali Hedayet





Mr. Chairman, Ms. Jackson-Lee and Members of the Committee:

Thank you for the opportunity to appear today to discuss the implications for immigration policy of the Immigration and Naturalization Service’s (“INS’s”) handling of matters involving Hesham Mohamed Ali Hedayet, the Egyptian national who shot and killed two people at Los Angeles International Airport on July 4, 2002. As detailed in the agency’s testimony, Mr. Hedayet entered the United States as a visitor in July 1992. His December 1992 application for asylum, in which he claimed persecution by the Egyptian government based on its mistaken belief that he was a member of Gama’a al-Islamiyaa, was denied by the INS in October 1995. An order to show cause charging Hedayet with being deportable as an overstay was then issued and mailed, but deportation proceedings were never commenced when the charging document was returned to the agency as undeliverable mail. In January 1997, Mr. Hedayet filed an application for adjustment of status as the spouse of a diversity lottery winner. When name and fingerprint checks with the FBI and CIA failed to elicit negative information, Hedayet’s status was adjusted to permanent residence in August 1997.

While the Hedayet case serves as the basis for legitimate inquiry into INS processes and procedures, it is both unfair and inaccurate to use the case to raise allegations against sound immigration policies that underlie programs involving the protection of refugees, the diversity lottery, or former Section 245(i) of the Immigration and Nationality Act. Rather, responsible voices recognize that immigration reform can best contribute to our national security by enhancing our intelligence capacity while respecting our commitment to due process and civil liberties and facilitating the free flow of people and goods.

Needed reforms to our immigration system are included in the Border Security and Visa Entry Reform Act (Border Security Act, Pub. L. No. 107-173). Specifically, the new law: authorizes increased funding for the Department of State (DOS) and the INS; requires federal agencies to coordinate and share information needed to identify and intercept terrorists; encourages the use of new technologies by authorizing funds to improve technology and infrastructure at INS, the Customs Service, and DOS, and targets much of this effort at strengthening our nation’s border; implements a study to determine the feasibility of a North American Perimeter Safety Zone (that includes a review of the feasibility of expanding and developing pre-clearance and pre-inspections programs); includes provisions for a workable entry-exit control system; implements changes in the Foreign Student Monitoring Program that will fill in gaps in data and reporting; and provides for a one-year extension of the deadline for individuals crossing the border to acquire biometric border crossing cards.

This measure also poses challenges to our country, the Congress, federal agencies, and the American people. Given the Act’s very ambitious deadlines, Congress needs to provide the federal agencies with the staffing and funding levels they need to implement this measure’s provisions. It is important for Congress to give the federal agencies the funding they need to do a good job. In addition, some of the Act’s provisions, particularly several of the mandated implementation deadlines, may negatively affect cross-border commerce and travel. Finally, the federal agencies, especially the INS and DOS, have an important role to play in enhancing our nation’s security. This measure, if sufficiently funded, will give the agencies the tools they need to do their job. For their part, the agencies need to be up to the task of implementing major reforms that address our security needs at the same time they recognize the continued importance of immigration to our nation.

All of these issues, as well as the Hedayet case, pose special concerns in the context of the creation of the proposed new homeland security department that would include our nation’s immigration functions. If we are to make our nation safer, any proposal to reorganize our immigration functions must recognize the delicate balance between adjudications and enforcement that is necessary for efficient, effective, and fair enforcement and adjudications. Adjudications and enforcement are two sides of the same coin and must be closely coordinated and subject to the same interpretation and implementation of the law.

The INS has been criticized for failing to follow up on the statements made in Heyadet’s asylum claim that he was targeted for persecution based on the government’s mistaken belief that he was a member of Gama’a al-Islamiyaa, a group later included in the State Department’s list of terrorist organizations. The INS testimony includes a thorough description of the steps it has taken to ensure full FBI and CIA background checks before asylum will be approved. Indeed, each applicant now undergoes background checks upon filing the application, irrespective of the INS determination regarding grant or denial. In addition, since 1997, statements included in asylum applications that raise questions regarding membership in terrorist organizations are referred to INS headquarters for review and appropriate follow up. Thus, had Mr. Hedayet’s claim been considered under current procedures, it would be reviewed for further action by the INS Headquarters National Security Office, including detention, where appropriate.

Fair procedures are critically important in making what can be life and death decisions regarding asylum. Detention is an appropriate measure for dealing with threats to our national security, but its use must be considered carefully in the cases of torture survivors, rape survivors and other asylum seekers, many of whom are still suffering from the effects of torture and persecution at the time they arrive in the U.S. Many victims find it hard to speak of their experiences right after they arrive. Often times, the shame, isolation and terror they feel is overwhelming. Even to save their lives, these victims may be unable to tell a strange person in a crowded room what they have endured. Under current procedures the failure to articulate a legally sound claim for asylum at the port of entry can result in an asylum seeker being turned away without a fair opportunity to fully present a claim. For those who are able to pass a credible fear hearing, lengthy detention is commonplace.

For many reasons, blanket detention policies are inappropriate and fail to strike a proper balance between security and humane treatment:

  • Detention undermines the ability of asylum seekers to pursue their asylum claims. Detained asylum seekers are often unable to obtain the legal assistance necessary to help them navigate the complex asylum process. Such assistance is critical; a Georgetown University study revealed that represented asylum seekers are 4 to 6 times more likely to win their asylum cases. Some detention facilities and jails are located in remote areas that are inaccessible to legal counsel, and asylum seekers sometimes find themselves transferred from facility to facility, stranding them hundreds of miles from their lawyers. The distance to these facilities also limits the ability of torture survivors to be examined by medical professionals in order to corroborate their cases.
  • The INS relies heavily on detention space rented from local prisons, facilities that are incapable of meeting the needs of asylum seekers. Local prisons account for more than 60 percent of INS detention space. In such facilities, asylum seekers, including women, are sometimes commingled with criminal inmates. They may be denied adequate translation services, and can be subjected to harsh disciplinary or other procedures, including the use of restraints. Asylum seekers can become invisible in these criminal prisons, indistinguishable from the rest of the prison population.
  • Families are divided. Families who arrive in the United States together are sometimes split between detention centers or into different units within a facility. They are either not allowed to visit with each other or allowed to do so infrequently and without physical contact. The remote location of some detention centers and restrictive visiting hours deter many relatives from visiting their detained family members.
  • The INS frequently refuses to release asylum seekers from detention even after they are found to have a credible fear of returning to their home countries. U.S. law allows the INS to release asylum seekers after they have been found to have a credible fear of persecution. In fact, the INS has issued guidelines authorizing the release of asylum seekers who satisfy certain criteria, stating that its policy is to “favor” release of these asylum seekers. But some INS district offices frequently ignore these directives and continue to detain asylum seekers for prolonged periods.

RECOMMENDATIONS: Congress should:

  • Authorize and appropriate funds for adequate INS-managed detention space in locations with access to free or low-cost legal services;
  • Mandate the development and consistent implementation of alternatives to detention of asylum seekers, including by parole under the asylum parole criteria, supervised release, and the creation of shelters operated by appropriate non-governmental organizations;
  • Provide for independent review by an immigration judge of a decision to detain;
  • Instruct the Department of Justice to issue regulations facilitating the parole of asylum seekers, specifying the criteria for their release, providing for immigration judge review, and ensuring the release of individuals granted “withholding of removal” who present no danger to the community; and
  • Create an Office of Detention Oversight within the Department of Justice to monitor detention facilities and enforce detention standards.

Through the implementation of the Border Security and Visa Entry Reform Act, we can increase the security of the immigration system without resorting to simplistic and overly-broad policies that fail to appropriately discriminate between those who seek to do us harm and those who are seeking protections from persecution.

Diversity Lottery
Before the Immigration Act of 1990 (Pub. L. No. 101-649), immigrants were primarily admitted to the United States through one of two routes: (1) through their relationship to a family member in the United States; or (2) via employer sponsorship. The 1990 Act, through creation of the Diversity Immigrant Visa Program (DV Program or Diversity Lottery), provided a third route by which immigrants can enter the United States.

The DV Program does not pose any inherent security problems. The lottery simply gives selected persons from countries with low rates of immigration the opportunity to apply for permanent residence. To qualify as a diversity immigrant, an alien must come from a designated “low-admission” country, and must have at least a high school education or its equivalent, or have worked at least two years in an occupation that requires two years of training or experience. Lottery winners must undergo extensive background checks, identical to those required by persons sponsored for permanent residence by family members or employers.

Security lapses can, of course, occur in this process if the FBI and CIA fail to share intelligence and law enforcement information with the INS and the State Department. However, this problem, too, was addressed by the Border Security Act, discussed above. The Border Security Act closes loopholes in our immigration system by requiring the FBI, CIA and other law enforcement and intelligence agencies to share vital information in real time, among our front-line agencies. It creates an electronic data system to give those responsible for screening visa applicants and persons entering the U.S. the information they need in real time and the tools they need to make informed decisions.

Moreover, several recent regulatory amendments to the DV Program have served to make the program more secure. For example, an October 26, 2001, State Department final rule augmented the photograph and signature requirements contained in the DV regulations, and updated the method by which consular officers make determinations regarding applicants’ work experience (66 Fed. Reg. 54135 (Oct. 26, 2001)). Specifically, the amendments provided that for anti-fraud purposes, the signature on the application must be the applicant’s usual and customary signature in his or her native alphabet. An initialed signature or block printing of the applicant’s name will not be accepted and will result in disqualification of the entry. The rule also added a new paragraph to the regulations to address photographs. Beginning with the DV–2003 registration, the entry, in addition to containing the applicant’s photograph, must also include recent photographs of the applicant’s spouse and children (natural children as well as legally adopted children and stepchildren), with a separate photograph for each family member. Photographs must be submitted even though the spouse or child no longer resides with the applicant and whether or not the dependent will accompany or follow to join the applicant in the U.S.

The October 2001 regulations also clarified that under no circumstances may a consular officer issue a visa to an alien after the end of the fiscal year for which the alien was registered, and further, that at the end of the fiscal year, the petition is automatically revoked. Finally, the regulations required consular officers to make determinations regarding an applicant’s work experience based upon the Department of Labor’s O*NET OnLine rather than the previously used Dictionary of Occupational Titles.

A subsequent interim rule further refined the October 2001 amendments, and added language clarifying the definition of “high school education or its equivalent” (67 Fed. Reg. 51752, Aug. 9, 2002).

INA Section 245(i)
Much confusion surrounds this important but little understood provision of immigration law. The provision to extend the deadline to file an application under Section 245(i) of the Immigration and Nationality Act that passed the House last March has been so poorly reported on in the media that some important clarifications are in order.

Section 245(i) is an important provision of U.S. immigration laws that has allowed eligible people to adjust their immigration status in this country, without having to return to their home countries where they could face bars to reentering the U.S. of up to ten years. Immigrants applying for Section 245(i) are eligible for their “green cards” (permission to permanently reside in the U.S.), but without Section 245(i) are unable to obtain them in the U.S. because they are not in a legal status. Thus, because these individuals are eligible to become permanent residents, the only thing that Section 245(i) addresses is the location in which an application for a “green card” is processed. Under the provision, when a person becomes eligible to receive a green card because of a close family relationship to a U.S. citizen or legal resident, or through the sponsorship of a qualified employer, that person will be allowed to go through the application process in the United States.

This law does not change who is eligible or when a person is eligible. It does not put a person “at the front of the line.” There is only one worldwide “waiting list” for available visas, and anyone seeking to apply for a visa under Section 245(i) must await their turn in that line. This law does not provide work authorization or protection from deportation for those individuals waiting in the United States for their turn in the line to come up. Section 245(i) only pertains to where people receive their green cards. Without this law, many immigrants are forced to return to their countries of nationality to await their green cards, thereby facing separation of up to ten years from their families and leaving their employers without needed workers. Section 245(i) allows families to stay together and businesses to retain valued employees. Most importantly, it gives the U.S. government a chance to thoroughly review the backgrounds of these people who may already be living in our communities, and decide whether or not we want them to continue living amongst us. This screening process is lengthy and quite involved, but without 245(i) many immigrants would be discouraged from beginning the process and making themselves known to authorities.

Section 245(i) also is fiscally prudent. It generated nearly $200 million in annual revenues for the Immigration and Naturalization Service (INS) the last time this provision of the law was implemented.

Section 245(i) has been characterized by some as a loophole that will allow terrorists to get green cards and gain legal residency. It is time to set the record straight. Section 245(i) does NOT operate independently of the long-standing provisions of our immigration laws, which make known terrorists inadmissible to, and deportable from, our country. A person seeking processing under this law must prove to the INS that he or she is admissible to the United States for permanent residence. The law excludes any alien who has engaged in any type of terrorist activity, as well as any alien who the Attorney General has reasonable grounds to believe is engaged in or is likely to engage after entry in any terrorist activity. In fact, the law excludes any alien who the Attorney General has reason to believe seeks to enter the U.S. to engage in any unlawful activity.

People who apply for Section 245(i) processing can be rejected for many other reasons, including: health-related grounds (comprising both mental and physical disorders); criminal convictions; public charge issues; and participation in drug trafficking activity, prostitution, commercialized vice, smuggling or human trafficking, money laundering, document fraud or misrepresentation, to name a few.

Most importantly, Section 245(i) does not provide a person with authorization to remain in the United States, does not provide employment authorization, and does not provide any protection from deportation, unless and until the applicant’s turn in line for visa processing has been reached, a visa is available, and the applicant has been approved for lawful permanent resident status.

Adjustment of immigration status under Section 245(i) is neither a right nor an entitlement—approval of any Section 245(i) application is solely at the discretion of the U.S. Attorney General and available only to those who are qualified to immigrate to the United States.

In sum, our focus in reforming our immigration laws must be targeted and meaningful—to identify and isolate potential terrorists, without compromising our values. Individuals who are otherwise eligible under our laws should be allowed to immigrate to the United States. Our actions must strike a careful balance between the need for strong law enforcement and preserving our tradition as a nation of immigrants.


Cite as AILA Doc. No. 02101041.