Possibly five of the forty-eight terrorists identified in the CIS report passed through the EOIR Immigration Court system undetected. These terrorists, like any other aliens in EOIR proceedings, were allowed to be released from immigration detention while waiting for their Immigration Court cases to be resolved. That is the major flaw of the EOIR system — the built-in excuse that the system provides for aliens to remain in the United States. Since the EOIR litigation process is so unnecessarily lengthy, and since the INS cannot possibly detain so many aliens for so long without removing them, the Immigration Court system permits aliens to be released on immigration bonds and get out of INS custody. And once out of custody, terrorist aliens remain in the United States to carry out their activities as planned, criminal alien residents are released back onto the streets to resume their lives of crime, and non-terrorist illegal aliens go right back to working illegally at the very same jobs from which they were rounded up in the first place. It's obvious that the inherent inefficiencies and absurdities of the EOIR system pose little threat to "sleeper" terrorists. They just walk right through this supposed removal process along with the rest of the aliens in Immigration Court.
What CIS overlooked — the EOIR Immigration Court
The Center for Immigration Studies hit another home run with its May 2002 report, The Open Door — How Militant Islamic Terrorists Entered and Remained in the United States, 1993-2001 by Dr. Steven Camarotta. The report adds an exclamation point to CIS' reputation as the preeminent research organization tackling immigration issues. And as a web-based repository of research, CIS also benefits from the knowledge base of all of its viewers. So in the spirit of internet collaboration and with great respect for their work, DeportAliens.com offers an analysis of what the CIS terrorism report overlooked.
As some immigration reformers already know, exposing the bureaucratic U.S. Immigration Court system of the Executive Office for Immigration Review is the central theme of DeportAliens.com. And rightly so! A virtually unknown agency within the U.S. Department of Justice, the EOIR and its system of endless hearings and appeals deserves every bit of blame that can be heaped on it, in order for it to receive its fair share of public shame for the federal government's utter failure of immigration law enforcement. It is incomprehensible that no matter how intensely the immigration debate rages in Congress, in the media and by the President himself, the EOIR Immigration Court system is nowhere to be found. The EOIR conveniently hides behind the hated Immigration and Naturalization Service when the public is out for blood. So why isn't the EOIR ever mentioned in the immigration reform debate? How can the EOIR, a federal agency with nationwide offices and direct control of the detention and deportation of millions of aliens in the United States manage to hide for so long? The EOIR even eluded Dr. Camarotta and the CIS research team.
The centerpiece of the CIS report is a survey of the immigration status of forty-eight recent militant Islamic terrorists. Page 11 The report unearthed many clues as to which terrorists may have passed through the EOIR Immigration Court system. But CIS did not mention the EOIR as being one of the immigration mechanisms that the terrorists exploited for their advantage to stay in the United States. The bottom line about what CIS overlooked is the fact that the Immigration Court system of the EOIR also played a role in assisting some of the terrorists to stay in the United States, or at the very least, played a role in allowing them to buy more time in the country in order to carry out their evil plans. The terrorists exploited the EOIR system just by being in it!
The often overlooked EOIR is in reality a key piece of the puzzle for explaining why our alien detention and removal system in this country is broken. It is the EOIR system which allows aliens to remain in the United States far longer than they have any logical right to remain. The EOIR is also the smokescreen that allows the aliens that the federal government already knows about (and actually locked up in detention) to be released again. The aliens then disappear back into the country to become fugitives again, under the pretense of waiting for the hearings and appeals of their Immigration Court cases to be resolved, which often is many, many years away. The release of thousands and thousands of aliens because of the inherent delays of the EOIR Immigration Court hearing system is a national scandal. The insanity of the EOIR process cannot be ignored any longer.
Possibly five terrorists in four plots
According to the CIS data, possibly five of the forty-eight terrorists passed through the EOIR hearing system undetected, yet remained in the United States to participate in the following plots: the 1993 World Trade Center attack, the 1993 murder of CIA employees in Virginia, the foiled 1997 plot to bomb the New York City subway system, and the foiled millennium celebration bombing plot. Unfortunately, DeportAliens.com does not have access to any federal government files on particular aliens in this matter. Without confirmation of INS or EOIR documents, it is not possible to be certain that news accounts of the terrorists' immigration matters accurately reflect the existence of any Immigration Court cases for these aliens. [Note: why doesn't the federal government release the data, rather than CIS having to do their own survey seven months after the fact? — a point made by CIS Executive Director Mark Krikorian.] But based on the CIS report and various existing news accounts, DeportAliens.com believes that it is possible that as many as five terrorists might have participated in EOIR hearings in the Department of Justice while they were simultaneously in the process of planning terrorist acts. In these Immigration Court hearings, the terrorists would be eligible to apply for many discretionary forms of relief from deportation. These killers could have been asking the discretion of United States government immigration judges in the Department of Justice to prevent their deportations, while at the same time moving forward with schemes to murder American citizens.
Trusting a subway bomber to depart voluntarily
The CIS report identifies Gazi Ibrahim Abu Mezer as an illegal alien who participated in a terrorist plot to bomb the New York City subway system. The report finds that Abu Mezer appeared before "a judge," and "[a] judge issued a 60-day voluntary departure order, but before the 60 days were up he was arrested on July 31, 1997." Page 30 This alien who was given voluntary departure by an EOIR immigration judge is now serving life in prison, thanks to some excellent police work. But no thanks to the U.S. Immigration Court system!
According to the Houston Chronicle ("INS policies criticized as too lenient toward students," 9/16/01), Abu Mezer was intercepted in 1997 after he already completed Immigration Court proceedings. Abu Mezer had been given voluntary departure from the United States by an Immigration Judge, but failed to depart as ordered. He was released from INS custody during the Immigration Court proceedings and given the privilege of leaving the U.S. on his own. This would-be terrorist, a Palestinian, was arrested in New York in the summer of 1997. He was plotting to build pipe bombs to use in the New York City subway system. Houston Chronicle Paid Archives.
A bomber with "good moral character?"
The story behind the Abu Mezer story is that for an alien to be given the fprm of relief called "voluntary departure," the immigration judge trusted that Abu Mezer would pay his own travel expenses, actually leave the United States, and also obey the order of the Immigration Court and depart before a specified date. To grant this type of relief, the immigration judge also must find according to the statute that Abu Mezer is a person of "good moral character" and that he is deserving of the relief in lieu of an order of deportation as a matter of discretion. [Note to the Immigration Judge: I've got a bridge in Brooklyn for sale that you might be interested in, too.]
The Abu Mezer case shows that EOIR Immigration Court judges are capable of unwittingly signing "voluntary departure" orders for potential subway-bombing terrorists! The Abu Mezer case shows that a potential terrorist can walk right through the EOIR Immigration Court system without missing a beat. A terrorist can walk right out of INS detention on an immigration bond set by an EOIR immigration judge and resume his activities back on the streets of America. And when it comes time to depart "voluntarily," he can always ignore the immigration judge's order and disappear without a trace in another immigrant enclave in another city.
Lack of detention space for 1993 WTC bombers?
The CIS report identified two alien terrorists who participated in the 1993 World Trade Center attack as being released from custody "possibly due to a lack of detention space" and "because the INS did not have detention space." Page 25 The report notes that Ahmed Ajaj "[l]eft the U.S. without attending a hearing" and that he had "applied for asylum." It is possible that this alien applied for asylum during Immigration Court hearings before the EOIR, and that he was released from custody on an immigration bond pending the outcome of his Immigration Court case. See Page 35 If a second 1993 WTC terrorist, Ramzi Yousef, also applied for asylum and was actually released from INS custody, it is possible that he also was appearing before the EOIR Immigration Court requesting political asylum. The fact that he was released from INS custody is a major clue to the EOIR connection, since outside of the border areas, the entire INS detention system is geared toward detaining aliens for EOIR Immigration Court proceedings. The charging document for Immigration Court (called a "Notice to Appear") gives the INS the authority to hold illegal aliens and criminal alien residents in custody. Aliens can also be held at ports of entry and removed without EOIR involvement under certain specific criteria of the Immigration Act. It's quite possible that Ramzi Yousef was under EOIR Immigration Court proceedings during the 1993 WTC bombing plot.
EOIR — the reason for the INS' folly
The CIS report acknowledges that "the INS often does not have the space to hold all those who violate immigration laws," and that "[h]ad [Ramzi Yousef] been held in detention, it would have made it far more difficult for him to mastermind the first attack on the World Trade Center in 1993." Page 35 Absolutely! But the CIS report stops short in addressing the underlying reason behind releasing aliens like Yousef. Believe it or not, the INS does not "catch and release" aliens simply for sport, like some sort of fishing tournament. The INS does it to serve the EOIR system. The hidden factor behind the futile "catch and release" program for immigration violators is the endless litigation bureaucracy of the EOIR. If the EOIR Immigration Court process (complete with its smorgasboard of relief from removal and automatic appellate rights) did not exist, then there would be absolutely no excuse for the federal government to release captured deportable aliens back to the streets, where the aliens could disappear all over again. With this type of unwieldy system, the INS cannot possibly detain so many aliens for so long during the process. The EOIR is the reason for what appears on the surface as mere INS folly.
Plotting assassin applying for asylum?
Mir Aimal Kansi, the Pakistani alien who assassinated two CIA employees in Virginia "applied for asylum" and "received a work permit" according to the CIS report, Page 18 It is not clear whether Kansi applied for asylum before an Immigration Judge or made an application to the INS at one of the regional asylum offices. If he applied before the INS, it is not clear whether his application was still in progress, or whether it was denied and referred for review by the Immigration Court. The denial scenario is possible because all aliens who apply to the INS offices for political asylum and happen to be denied get the automatic privilege of a second chance at presenting their case, this time before an EOIR immigration judge at a formal hearing. Kansi might have been in the process of having a case heard by the EOIR before this killing spree. He might even have been granted some form of minimal relief, like "voluntary departure," while remaining on the streets.
Millennium bomber appeals asylum denial
The foiled millennium celebration bomber, Abdel Hakim Tizegha, was a political asylum applicant in the United States. According to the CIS report, "his application for asylum was denied in 1997, as was his appeal in 1999." Page 30 This clue as to his immigration status points to an Immigration Court case before the EOIR, and an appeal to its appellate body known as the Board of Immigration Appeals in Falls Church, Virginia. If this illegal alien terrorist had applied for political asylum directly with the INS asylum officer corps, there would have been no formal "appeal" of the decision if he was denied. But since the CIS report identifies an appeal two years after a denial, it is possible that this Algerian terrorist had a case that proceeded through the EOIR system, while he remained in the United States to plot the murder of innocent American citizens. Though the BIA may have made the ruling in 1999 denying his asylum claim, the bomber still remained in the United States to continue his scheme.
9-11 Terrorists never reached the EOIR system
By remaining undetected by federal immigration law enforcement, the terrorists of 9-11 remained on the "service" side of the Immigration Service without ever running afoul of its "enforcement" efforts. By staying on the "good aliens" side of the INS, the 9-11 terrorists were able to move freely within the United States and plot mass murder. Even if they were illegal aliens, by virtue of expired visa status, they were never arrested on immigration violations and never made it to the Immigration Court system. But suppose for a minute that they had all been apprehended simply as tourist visa over-stayers, or no-status illegal aliens, without their true intentions being discovered. These silent terrorists would have had little to fear from the EOIR Immigration Court process. After being arrested, if they were detained at all, they would have been put into Immigration Court proceedings. When they appeared before an EOIR immigration judge, they most likely would have been released from custody for the payment of an immigration bond of perhaps $3,000 to $10,000. Once they were out of custody, they would be free to exploit the delays inherent in the EOIR litigation bureaucracy.
Exploiting the EOIR asylum process
If the 9-11 terrorists were arrested as simple visa over-stayers, they would have been entitled to make applications for political asylum before the EOIR immigration judges. And if they lost their cases in Immigration Court, they could just appeal again as a matter of right to the Board of Immigration Appeals, and then to the federal circuit courts of appeal while remaining in the United States the entire time. As long as the 9-11 terrorists managed to get out of INS custody, the fact remains that any pending EOIR Immigration Court hearings wouldn't have slowed these cold-blooded killers down one bit!
Chances are that the EOIR's Board of Immigration Appeals and Immigration Courts have heard cases of potential terrorists and their sympathizers. Just how many is unknown. Given the current state of affairs at the INS, there are probably no consistent or reliable procedures for comprehensive security checks of political asylum applicants (including aliens applying before the asylum offices of the INS or before the Immigration Court). The chances of there being newly-minted political asylees who are also "sleeper" terrorists are great.
The CIS report even suggests a scenario where the spiritual leader of the 1993 World Trade Center plot, Sheik Omar Abdel Rahman, may have appeared in Immigration Court using "an asylum application to prevent his deportation to Egypt after all other means of remaining in the country had failed." Page 30 It is not clear whether this asylum application was made before or after the 1993 bombing. It could be that the Sheik was the sixth terrorist (out of the group of forty-eight identified by CIS) to pass through the Immigration Court system. But without government confirmation, the record is unclear.
Who knows how many aliens wishing to do this country harm could have gained status in this country through the wide-open door of the political asylum process? Political asylum is always an avenue for entry into the United States for just about any alien, whether or not the alien was already granted a non-immigrant visa at a U.S. consulate abroad. The sad truth about the system as it exists today is that international alien smuggling and the asylum process remain as viable vehicles for entry for anyone determined enough to enter the U.S., whether they are so-called "economic refugees," terrorists who wish to do our country harm, or both. The asylum process through the EOIR Immigration Court system is one of the country's most dangerous open doors just waiting to be exploited, even by sworn enemies of the United States. Who knows how many asylum applicants or their family members with loyalties elsewhere have successfully exploited the refugee, asylum or Immigration Court systems and remain in our country?
Exploiting the EOIR without breaking the rules
Let's face it, the bureaucratic EOIR Immigration Court system is ripe for exploitation by terrorists, their supporters, collaborators and families. The EOIR Immigration Court system is also a central component of what it wrong with U.S. Immigration policy. The EOIR is part of the problem, not part of the solution for efficient immigration law enforcement. The EOIR system of hearings and automatic appeals provides the perfect stalling technique where the aliens that the federal government is supposed to be removing actually wind up staying in the United States longer, and very often with a gift of legal status which they never had in the first place. The EOIR system cannot be overlooked any longer as part of the failure of U.S. immigration policy. The EOIR should be abolished and its functions parceled out to law enforcement officers in a federal agency dedicated to actually enforcing the immigration laws of the United States.
Juan Mann is the proprietor of DeportAliens.com — the only immigration reform web site that exposes the litigation bureaucracy of the EOIR. He dedicates his work to the principle that one man's opinion can make a difference.
June 03, 2002