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United States Department of State
Washington, D.C. 20520
NOV I 2 1999
Sincerely,
Barbara Larkin
Assistant Secretary
Legislative Affairs
Enclosure:
As stated.
The Honorable
Jesse
Committee on Foreign Relations,
!,-___-- q&rdMU34£IMs[ ^Hi-ate. '
~ i list
1. Has the U.S. Embassy in Panama proposed the revocation
of the U.S. visa of other persons involved in this
scandal? If so, please explain why only Ms. Smith's
visa has been revoked to date.
recent years so that U.S. authorities can determine the breadth of this alien
smuggling operation? Has such a list been provided?
5. Has the Department urged U.S. law enforcement officials overseas to treat
investigations of alien smuggling as a greater priority?
Thank you very much for your cooperation in this matter. I look forward to
hearing from you.
Sincerely,
JESSE HELMS
9900-4469
Initial for clearance or return for edits with remarks. Do Not mark on original
document. Pass on in numerical order with final stop in H/CCU. PLEASE,
DO NOT return to drafting office without sending to or notifying CCU
first.
2: Trejo
3: Guest
4:BL
5: CCU
6:
COMMENTS:
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NCIC generally
As of May 1, 2004, the ICE Law Enforcement Support Center (LESC) reports that the
total number of alien absconders in NCIC is currently 28,876.
'O
OFFICE OF IMMIGRATION
LITIGATION
CIVIL DIVISION
U.S. DEPARTMENT OF JUSTICE
WASHINGTON, D.C.
1331 PENNSYLVANIA AVENUE, N.W.
SUITE 700 NORTH
WASHINGTON, D.C. 20004
MAIL: P.O. BOX 878, BEN FRANKLIN STATION
WASHrNGTON, D.C. 20044
TO
SUBJECT
MESSAGE:
uoui
\S (INCLUDING THIS COVER SHEET
PW VILECED. CONFIDENTIAL AND EXEMTT RtOM DISCLOSURE UNCEH ATMJOJJLE LAW. IF THE HEADER Of Tl IIS COVIMUMCATIQK IS NOT Tl IE INTENDED
R£CIMEMT OK THE EMPLO YGC Oft AGEMT HESrOKSlflU FO» 06U VEWlW ThE MESSAGE TO THE INTENDED IECIFIENT. VOU ABE HEKEIV NOTIFIED THAT ANY
DISSKNIHATlOK, DISnUDUTIOS. OH COfYIMO OF THIS COMMUNICATION MAY DC STKJCTLV MOHlkmO \t YOU HAVE RECEIVtCl TH/S COMMUNICATION IN
CMO*, PlAAle NOTtTY MC IMMEDIATELY Br tOU-ECTTELEPHONE CALL. AXD RETVW TH» COMMUNICATION TO MB AT THE ADQVB ACOHOJ VIA UtJITEO
STAT6S WSTAl. SERViee THAM1 YOU.
OAG015-0016
MflY-15-2003 17:39 OFFICE OF IMMIGRflllON LI I _ £16 H_
MEMORANDUM
Attachment
OAG015-0017
MflY-15-2003 17:38 OFFICE OF imiGRRTION LI I _ 616
*
Proposed Interim Procedures To Implement Section 401 of the
Antiterrorism and Effective Death Penalty Act of 1996:
2. The Deputy Attorney General will exercise oversight responsibility relating to the
operation of the Task Force and will designate an attorney within her office who will
be her point of contact for issues relating to the Task Force. Any component agency
that objects to a decision reached by the Task Force may lodge that objection with the
Deputy Attorney General's designated point of contact.
3. To ensure that the Removal Court process will be utilized consistently with
Congressional intent and Administration policy, the Criminal Division will assist the
FBI in identifying the initial alien terrorists that are the subjects of current FBI
investigations to be considered by the Task Force for Removal Court a'ction. The FBI
and Criminal Division will develop a process tp ensure that future candidates,
including those alien terrorists violating 18 U.S.C. § 2339B (AEDPA's new
fundraising criminal penalty provision) are expeditiously identified for Removal Court
proceedings.
4. INS, the Civil Division (OIL), other agencies, and U.S. Attorneys'Offices having
Removal Court case recommendations will submit their recommendations to the
Criminal Division and FBI for preliminary review. It is expected that INS agents
currently assigned to FBI field office counterterrorism squads will continue ;o work
with those-offices to generate case recommendations through FBI channels. INS case
recommendations which result from: (a) independent investigation in other contexts;
(b) INS confidential sources; and (c) ports-of-entry inquiries with respect to arriving
aliens, will be made through INS headquarters.
' U.S. Attorneys may ask, or be asked, to detail one or more attorneys to work with the
Task Force in cases arising in the context of terrorism investigations directed by their offices.
OAG015-0018
/ MflY-15-2003 17:39 OFFICE OF IMMIQRflllQN LI I _ 61S ...
.
vi)
Before any recommendation is submitted to the full Task Force, INS, in consultation
with OIL, shall determine promptly for each individual identified for possible
Removal Court action: alienage; immigration status; eligibility for relief from
deportation; all possible grounds for deportation (based on the information available -.A
at the time); and other pertinent issues within INS expertise or jurisdiction,.including
possible grounds for criminal prosecution for immigration violations. The INS shall
provide the results of its review to the FBI in writing. The INS may conduct such
investigation as may be necessary to obtain evidence of alienage, immigration status,
deportability, or criminal prosecution for immigration violations.
The FBI, after initial and follow-up consultation with the Criminal Division and OIL, •••(•.*
• *.v
will transmit all recommendations for Removal Court action to the Task Force in a
package consisting of:
(a) FBI or other agency file information, including pertinent FISA-deriyed
information and LHMs ihat relate to the alien;
(b) the mosi recent annual FBI LHM summarizing the activities of the terrorist
organization with which the alien is affiliated;
. ts
(c) F1SA applications and orders relating to ihe alien and the terrorist
organization, if any; .' <• '!i!r.'•>
(d) ihe INS material provided pursuant to paragraph 5; and
(e) a memorandum from the Assistant Director for National Security to the Task
Force Chairman, which memorandum:
1 Grand jury information should be provided to the Task Force consistent with the
requirements of Fed. R. Crim. P. Rule 6(e), or court order obtained at the Task Force's request.
OAG015-0019
MPY-15-2003 17=39 OFFICE OF IMMIGRRTIDN LIT e. - 616 49-. P.
(vi) identifies the witnesses who would be available to testify in open coun,
in camera, or both, during the proceeding; and 1 !"•
*&
'.'.M'\0
(vii) states whether the FBI or other agency, including any U. S. Attorney's
office, opposes removal and the reasons therefor.
(a) INS will: (i) transmit a copy of the subject alien's A-file to the Task Force
for review; (ii) place the original file under controls to ensure that original
documents will remain'avail able to the Task Force when needed; (iii) mark
che original file clearly to indicate that the alien is currently the subject of
Task Force review; and (iv) place appropriate notations in the file and INS
systems to ensure that the alien is not considered for adjustment of status or
other immigration relief without clearance by INS Headquarters officials, in
consultation with the Task Force;
(b) the State Department, through its Counter-Terrorism Office (S/CT), will
provide the Task Force with its current assessment of the terrorist organization
at issue and a copy of the administrative record on which the designation, if
any, is based;
(c) the State Department and the Criminal Division's Office of International
Affairs will advise whether an extradition request is possible with' respect to
the alien;
/
9. As soon as practicable thereafter, the Task Force will convene a meeting of its
relevant members, as well as Assistant U.S. Attorneys or other agency officials as
needed, which will:
(a) ascertain from INS whether its review of the INS file establishes that a "non-
terrorisi" ground exists which can be easily and promptly used, to deport the
alien successfully, without posing a risk to the national security;1
(b) ascertain from the Criminal Division whether sufficient evidence exists
warranting prosecution based on passport or immigration fraud, or other
criminal violations, including violations of AEDPA's criminal fundraising
provision, 18 U.S.C. § 2339B;
(c) review all FBI material to determine whether a "terrorist" ground, within the
meaning of 8 U.S.C. § 1182(a)(3)(B)(iii) and § 125l(a)(4)(B), exists to deport
the alien successfully;
(f) attempt to reconcile any inieragency disputes regarding the decision to seek
removal of the subject alien.
10. The Task Force may, at any time, request the recommending agency to:
(a) coordinate with other agencies to pursue alternative enforcement options such
as conventional deportation proceedings or criminal charges;
(b) investigate the matter further to develop needed additional evidence or repair
deficient evidence that is material to deporubility;
1 Particular consideration should be given to the possibilities that: (1) the alien may present
a meritorious application for withholding of deportation that cannot be rebutted through .the use
of classified information (8 U.S.C. § 1253(h); 8 C.F.R § 242.17); and (2) what course of action
should be taken in the event that the Special Court finds that the alien is not removable under
Tide V of the INA.
OAG015-0021
MRY-15-2003 17=39 OFFICE OF i m i U . i l l U N LI I .6
•\. •
11. The Task Force shall determine if the following conditions are present:
:ij
(a) a terrorist deporution ground exists;
'•*
preferred;
12. Should the conditions required under paragraph 11 be deficient or absent, or if the
case appears deficient as a matter of law or fact to establish deportability, the Task
Force will notify the recommending entity as appropriate.
13. If the Task Force determines that the conditions in paragraph 11 are present, it will
transmit the application package and related material to its Terrorist Alien Trial Unit.
This Unit of the Task Force will be chaired by OIL and comprised of OIL, INS, and
Criminal Division attorneys and OIL support staff, with O1PR and FBI assistance as
the unit deems necessary, Upon case referral, the unit will:
OAG015-0022
nAY-15-2003 17:40 OhlCt Uh Ihnlu UluNLII <= _ 616 M_
14. Upon certification by the Deputy Attorney General or Attorney General, the Trial
Unit will: . .
(a) submit the section 5Q3(a) application to the Removal Court and.prepare the
case for trial;4 :
(b) if the subject alien is not already in custody, request that INS take the. alien
into custody5 and inform the Removal Court of the fact that the'alien has been
detained;
(c) prepare for any release hearing if the alien is a lawful permanent resident;
(d) if pertinent, notify the Treasury Department's Office of Foreign Assets Control
of the pendency of the application, for consideration of any actions that might
be warranted under Executive Order 12947; and
(e) notify the Department of State, through S/CT, of the decision of the.Attorney
General or the Deputy Attorney General to initiate Removal Court proceedings
against the alien.
15. In the case of any subject alien presenting special security concerns, INS may request
detention assistance from other agencies, including the Bureau of Prisons and the U.S.
Marshals Service.
16. Should the Removal Court grant the application, the Trial Unit will try the case
before the Court,
17. The Trial Unit will have principal responsibility for defending against any collateral
attacks attempted in other courts on the Removal Court provisions or process, -except
to the extent that the subject matter falls within the particular jurisdiction of another
Department office, in which case the Trial Unit will assist as necessary.
(a) The Trial Unit, wuh the involvement of and assistance as needed by the. Civil
Division's Appellate Staff, will have principal responsibility for:
5 Custody will be effected almost always simultaneously with the filing of .the application.
OAG015-0023
MflY-15-2003 17:40 OFFICE U- IhnlU il IUN LI I
(b) The Appellate Staff of the Civil Division, with the assistance of the Task
Force members as may be necessary, will have principal responsibility for
handling appeals to the United States Court of Appeals for the D.C. Circuit by
any organization designated under Section 219 of the INA as a foreign terrorist
organization by the Secretary of State.
19. INS will prepare and furnish to the alien, his attorney, and Lhe Task Force, any
periodic reports required by section 507(2){C) with respect to aliens in continuing
detention.
20. The Task Force and Trial Unit will assist investigating agencies and USAO's with
respect to the requirements of the Title V removal process. It will also assist, as
requested, in pending investigations with respect to matters within its developing
expertise.
21. The Task Force Chairman, or his designate, in conjunction with OIPR, OIL, and the
Security Staff of JMD, will assist the Chief Justice of the United States in the
structuring of the Removal Court.
22. The Task Force may revise these interim procedures as necessary, withv the approval
of the Deputy Attorney General.
23. The Task Force, in light of its experience under ihese interim procedures, will report
to the Attorney General and Deputy Attorney General within 18 months with its
recommendations concerning the advisability of creating a permanent Department unit
for handling Removal Cpun proceedings and for proactive participation'by the unit in
the identification of and enforcement efforts concerning alien terrorists. The report
shall also contain an assessment of the level of cooperation between the various
Departmental components and an evaluation of the Removal Court proceedings under
the interim procedures.
TOTflL P.09
OAG015-0024
Report to the Congress Regarding the
Alien Terrorist Removal Court
OAG015-0025
procedures for the handling of such cases. While the Department
of Justice has devoted substantial resources to the task of
identifying and evaluating cases, this process has not yet
identified a case that belongs in the ATRC rather than some other
forum.
The fact that the Department has not yet brought a case in
the ATRC is the product of a number of factors. First, the ATRC
was intended to be a low-volume court. As stated above, the ATRC
legislation effectively requires that conventional immigration
proceedings under Title II of the INA be considered before resort
to the ATRC, as the ATRC can only be utilized if removal
proceedings under Title II "would pose a risk to the national
security of the United States." INA § 503, 8 U.S.C. § 1533.
This is a jurisdictional prerequisite to invoking the ATRC.
OAG015-0026
including the ATRC. In any event, as a matter of policy, the
Department would prefer to criminally prosecute, convict, and
incarcerate alien terrorists for any criminal act committed than
simply remove them from the United States. However, because
government intelligence investigations are not conducted with the
goal of gathering evidence that can be used to prove criminal
charges or immigration violations in court, they often do not
provide a sufficient basis to sustain a criminal prosecution or a
remova1 ac t i on.
Despite the fact that it has not been used, the ATRC remains
a potentially important component of our enforcement apparatus.
OAG015-0027
It was created to help the United States avoid the dilemma of
either allowing alien terrorists to remain in the United States,
on the one hand, or endangering national security by disclosing
classified evidence in their removal proceedings, on the other.
This was a problem prior to the creation of the ATRC and, without
the ATRC, the Government is likely to once again face this
dilemma in at least a small number of cases. In our view, the
ATRC remains a potentially critical tool.
OAG015-0028
potential targets for terrorist activity, or that
the organization provides material support to
further terrorist activity; and (c) a. group of two
or more individuals, whether organized or not, that
commits or incites the commission of terrorist
activity, prepares or plans a terrorist activity, or
gathers information on potential targets for
terrorist activity;
OAG015-0029
to all aliens, without regard to the date of the alien's entry or
attempted entry, who are in removal proceedings on or after the
date of enactment (except for proceedings in which there has been
a final administrative decision before enactment), or who are
seeking admission to the United States on or after the date of
enactment.
Conclusion
Both before and after September 11, 2001, the Department of
Justice has considered a range of options in reviewing the case
of a suspected alien terrorist. These options range from
continuing an ongoing intelligence-gathering operation to
criminal prosecution to removal, including both conventional
removal under Title II of the INA to removal before the ATRC
under Title V. The USA PATRIOT Act expanded the category of
aliens who are subject to removal based on involvement with
terrorist activity as defined by the immigration law. The
Department continues to review cases with the goal of taking the
appropriate action to protect the national security. As stated
previously, the ATRC is simply one tool in the Government's
arsenal for removing alien terrorists.
OAG015-0030
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