io

-——-""Prepared by: Jody Woods Index: Type bundle index here

[ ite: 6/28/02 DOC Library: Type library name here
Job Code: 320087 DOC Number: Type document number here

State Lawyers, 6/19/02

Reviewed by: Type reviewer name here
Review Date: Type review date here

Record of Interview
Purpose We met with Catherine Brown and Steve Fischle, lawyers for the state
department, to discuss the legislative basis for visa refusals. Specifically,
we discussed how the Immigration and Nationality Act could be improved
to serve as a better screen against terrorists.

Contact Method In person

Contact Place State Department

Contact Date June 19, 2002

Follow-up at State Department Exit (Fischel), June 23, 2002
Follow-up phone conversation (Brown), June 28, 2002

Participants State Department ^

Catherine Brown, Assistant Legal Adviser for Consular Affairs (L/CA),
Office of the Legal Adviser. F I
Steve Fischle. Office of Legislation, Regulations and Advisory Assitance
CVO/L),| |

GAP
Judy McCloskey, AIC 9/11 Personal Privacy
Mary Moutsos, OGC
Jody Woods, Senior Analyst
Kate Brentzel, Analyst
Gabrielle Anderson, Analyst

Ms. Brown explained that Congress has been of two minds on visa
History of the issuance; one side promoting greater border security, and another fearing
Immigration Act abuse of the authority consular officers has to deny visas. Prior to 1990,
the immigration standard included a broad standard that allow State to
deny potential terrorists without needing specific information on their
links to terrorism. That immigration law was enacted in the 1950s, mainly
in reaction to the growth of communism. Ms. Brown explained that in
1990, fearing that consular officers were abusing this clause to deny whole
classes of people, revised the immigration law and raised the bar to
require that applicants denied on the basis of terrorism fit a very specific
definition and required that State report to Congress quarterly on cases
that were denied under the new clause (INA 212(a)3b).' This, in practice,

1 Auditor's Note: We suspected that this change in legislation may have been prompted by the fall of
the Soviet Union, since it also contained a clause on terrorists.

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caused State to purge its name check system and strip out thousands of
names that would have fit the pre-1990 statute but not the post-1990
statute.2

Mr. Fischel noted that since 1990, Congress has added more, and looser,
definitions of terrorist activity. In 1994, they added "incitement of
terrorism" to the list of qualifying definitions. Most recently, the Patriot
act adding section 212(a)3(f) on terrorist organizations, added "endorses
terrorist activity", and changed the standard from "reason to believe" to
"reasonable suspicion". Ms. Brown stated that it is unclear how these
changes may result in more denials on terrorism grounds. She did not
know of any cases yet in which State had used 212(a)3(f).

General Impressions
Changes needed in
terrorism clause- While Ms. Brown stated that U.S. Immigration law is clearly designed to
212a(3)b be a screen against terrorists, both Ms. Brown and Mr. Fischle felt that the
law could be improved to give them more flexibility in denying applicants
on terrorism under section 212(a)3(b).

Current requirements

Mr. Fischel explained that under the current process, the visa office would
receive a case that contains a security advisory opinion and related
intelligence information from State INR. Mr. Fischel stated that in
practice, most of the cases they see come as a result of a security advisory
opinion generated from a CLASS name check match on the applicant,
although consular officers have the discretion to send in advisory
opinions on any applicant. If they feel the intelligence information
provided means that the applicant falls into one of the definitions of
terrorist activity they can deny the visa under section 212(a) 3(b) of the
Immigration and Nationality Act. Once they deny the visa, they are
required to report the reason for the denial in quarterly reports to
Congress. These reports are classified, but Mr. Fischel noted that often
the explanation for the denial is very brief, only a sentence or two.3

2 Mr. Fischel noted that many of these names were not terrorists, but were communists.

3Auditor's Note: We have requested these reports on numerous occasions from both the State
Department and from the Congressional Intelligence Committees but were denied each time. We
requested the reports again in this meets, and Ms. Brown stated that due to the classification level,
other intelligence committees only agreed to release the information to Congress. She reconunended
that we write a letter to State requesting the information and noting that we have the approval of the
Congressional committees that we can receive that information.

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Different standards required for Viper. TIPOFF. 212faWV)

Mr. Fischel explained that the level of connection needed to send in a visa
viper, include a name in TIPOFF, or deny a visa differs. Visa viper cables
require the lowest threshold of evidence to prove a connection, followed
by TIPOFF, followed by 212(a)3(b).

Need for change to 212fa)3ftrt

Mr. Fischel stated that 212(a)3(b) should be revised to give State

Department more flexibility in denying visas. Both felt a simpler statute
that was closer to the authority they had prior to 1990 would give State
more flexibility to deny visas on terrorist grounds.

Basis for a 214(b^ denial

Explanation of
214(b) Ms. Brown and Mr. Fischel offered mixed opinions on what could be
deemed proper basis for an intending immigrant (214(b)) denial. Both
agreed that an applicant must prove they have ties to their home country,
but had mixed opinions on how much discretion posts had in defining ties.
For example, when asked if they felt Saudi Arabia's pre-9/11 policy of not
subjecting Saudi citizens to 214(b) was a correct application of 214(b),
both said yes.

When asked if consular officers could deny on 214(b) if they didn't believe
the purpose of visit that the applicant claimed, both responded yes. Ms.
Brown added, though, that 214(b) should not be used too broadly.

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Visa Classes not subject to 214(b)

Mr. Fischel told us that non-immigrant visa classes H and L, as well as all
immigrant visas are not subject to 214(b).

Ms. Brown stated that applicants could be denied for fraud under
Explanation of 212(a)6(c) (???), but that the nature of the fraud has to be material to their
Fraud Denials case.

Ms. Brown stressed that consular officers do not need to interview

Affect of Interviews everyone. Consular Affairs is resource constrained and therefore can't
afford to interview everyone. She stated that while the interview is a
requirement, it can be waived. Both Ms. Brown and Mr. Fischel felt that it
was speculation to guess whether any of the 19 lujackers would have been
turned down if they'd been interviewed.

Ms. Brown informed us that consular managers are required by Federal

Review Procedures Regulation 41-121 to review all refusals made by a consular officer. She
explained that this regulation was put in place to introduce fair play into
the visa process since it is not subject to judicial review. When asked by
issuances aren't reviewed, Ms. Brown stated that it was a resource issue.
Mr. Fischel noted that the Visa Office had recently sent out guidance to
posts requiring them to spot check issuances. He said it has always been
"good" consular manager practice to spot check issuances.

Mr. Fischel and Ms. Brown were under the impression that the
Effect of Homeland reorganization of the Homeland Security Department would take the
Security authority to issue visas away from consular officers. The Secretary of
State would still have the authority to deny, but Homeland Security will
now be able to give instructions directly to consular officers. Ms. Brown
stated that this does not reflect the current legal authority that the
Attorney General has. Mr. Fischel felt that it was dangerous to move
toward a system in which visa issuance and border checks are all
conducted by the same agency.

Mr. Fischel and Ms. Brown stated that State has engaged a number of
Need for better agencies to get more intelligence on terrorists into the system. They
information sharing stressed that because the current system is dependant on this information,
information sharing with other agencies is critical. Having intelligence on
applicants has already led to numerous denials on terrorism grounds.
They noted that even if they receive the information after an applicant has
been given a visa, the Secretary of State can revoke the visa

Ms. Brown added that resource constraints within consular affairs drove
Resource much of their implementation efforts in the 1990s. She stated that
Constraints allowing State to retain MRV fees allowed consular affairs to develop a
cutting edge name check system. She warned, however, that resources
would continue to be a problem, especially if consular officers are
required to conduct additional security measures.

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Both lawyers felt that training for junior officers could be improved, but
they supported the idea of allowing junior officers to adjudicate visas. Mr.
Fischel stated that foreign service officers cannot make a career out of
adjudicating visas.

-p , j Ms. Brown and Mr. Fischel stated that pressure to issue visas at an
r reSSUre lO ISSUC embassy level does exist and they get information on these cases on
occasion. Mr. Fischel stated Ambassador Kennedy from Ireland was even
disciplined for putting such pressure on consular officers. He
recommended that we talk with the State IG about their cases.4

' Auditor's Note: I e-mailed the IG about this question. Their e-mail response stated that while they
were unaware of any formal reports on pressure to issue at posts, they do on occasion have to have a
stern conversation with Ambassadors and DCMs on occasion.

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