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  1. What do we know about Syrian refugees? by Nolan Rappaport


    The Problem

    Syria is on the list of State Sponsors of Terrorism because it provides support for acts of international terrorism. It has been on this list since December 29, 1979. Concern about Syria being a breeding ground for international terrorism is so strong that aliens from Visa Waiver countries who have been present in Syria at any time on or after March 1, 2011, have been excluded from participation in the Visa Waiver Program by the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015.

    According to a report that the House Homeland Security Committee released in November 2015, Islamist terrorists from Syria are determined to infiltrate refugee flows, and the United States lacks the information needed to screen Syrian refugees for possible terrorism connections. FBI Director James Comey told the Committee, “We can query our databases until the cows come home, but nothing will show up because we have no record of that person...You can only query what you have collected.” An FBI Assistant Director added that, “the concern in Syria is that we don’t have the systems in places on the ground to collect the information... All of the data sets, the police, the intel services that normally you would go and seek that information [from], don’t exist.” A U.S. Citizenship and Immigration Services (USCIS) official stated further that the government does not have access to any database in Syria that can be used to check the backgrounds of incoming refugees against criminal and terrorist records. National Counterterrorism Center Director Nicholas Rasmussen explained that “the intelligence picture we’ve had of this [Syrian] conflict zone isn’t what we’d like it to be... you can only review [data] against what you have.”

    The Homeland Security Committee concluded that immediate action must be taken to suspend the admission of Syrian refugees until our intelligence and law enforcement agencies can certify that the refugee screening process is adequate to detect individuals with terrorist ties.

    The Administration has responded to concerns about the Syrian refugees by establishing a more elaborate screening process which takes between 18 and 24 months to complete. Frankly, I do not know how additional time helps if the sources being checked do not have the needed information, and, as you will see below, the Administration has cut the processing time back to three months to meet President Obama’s goal of bringing 10,000 Syrian refugees here this year.

    Refugee Security Screening

    The Department of State Consular Lookout and Support System. Name checksare conducted for all refugee applicants when they are prescreened at Resettlement Support Centers.

    Security Advisory Opinion. The FBI and intelligence community partners perform a biographic check on Syrian refugees and refugees from other places that have been designated by the U.S. government as requiring a higher level check.

    Interagency Check. This is a lower level screening of biographic data that applies to all refugee applicants within designated age ranges. This information is captured at the time of pre-screening and provided to intelligence community partners.

    USCIS interview. When USCIS interviews the applicants, their fingerprints are taken and biometric checks are initiated. The officer conducting the interview —

    • Confirms the basic biographical data of the applicant;
    • Verifies that the applicant was properly given access to the U.S. Refugee Admissions Program;
    • Determines whether the applicant has suffered past persecution or has a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion;
    • Determines whether the applicant is admissible to the United States; and
    • Determines whether he has been firmly resettled in another country.

    An FBI Next Generation Identification (NGI) check.
    This is a biometric check that is not limited to fingerprints. It also includes palm prints, irises, and facial recognition. The NGI program has established the world’s largest and most efficient electronic repository of biometric and criminal history information.

    DHS Automated Biometric Identification System. This is a biometric record check for a travel and immigration history, immigration violations, and law enforcement and national security concerns. Enrollment in this system also allows CBP to confirm identity at the port of entry.

    Controlled Application Review and Resolution Process (CARRP). If security and background checks or personal interviews raise national security concerns, USCIS conducts an additional review through the internal CARRP process. CARRP includes a complete review of the case file and, in most cases, additional screening with assistance from the law enforcement and intelligence communities.

    Syria Enhanced Review. USCIS’ Refugee, Asylum and International Operations Directorate and the Fraud Detection and National Security Directorate (FDNS) have collaborated to provide an enhanced review of Syrian cases. FDNS provides intelligence-driven support to refugee adjudicators, including threat identification, and suggested topics for questioning. FDNS also monitors terrorist watch lists and disseminates intelligence information on applicants who are determined to present a national security threat.

    U.S. Customs and Border Protection (CBP). Applicants who succeed in passing through the screening process must be admitted to the United States by CBP before they can receive refugee status. CBP inspects the refugees when they arrive at a port of entry to determine whether they are excludable under any of our immigration laws.

    Screening process reduced to three months to succeed in bringing 10,000 Syrian refugees here this year

    In a statement released on February 22, 2016, the U.S. Embassy in Jordan announced that, as part of the effort to reach the President’s goal of admitting 10,000 Syrian refugees this year, the State Department has established a temporary refugee processing center near Amman. Access to this center is by invitation only. State is hoping to bring an average of 1,500 Syrian refugees a month to the United States with this program, but it has insisted that it is not cutting corners on security. According to State, the security screening in of itself does not take 18 to 24 months. We have compressed the non-security portions of the case work so that the process can be shorter.

    Published originally in Huffington Post.

    About The Author
    Nolan Rappaport
    was detailed to the House Judiciary Committee as an Executive BranchImmigration Law Expert for three years; he subsequently served as the immigration counsel forthe Subcommittee on Immigration, Border Security, and Claims for four years. Prior to workingon the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for twentyyears. He also has been a policy advisor for the DHS Office of Information Sharing andCollaboration under a contract with TKC Communications, and he has been in private practice asan immigration lawyer at Steptoe & Johnson.

  2. The door is wide open for terrorists to use the Visa Waiver Program to come to the U.S. by Nolan Rappaport

    The Visa Waiver Program (VWP) was established to facilitate international travel without jeopardizing United States security. But balancing national security interests against efforts to facilitate international travel through the VWP presents challenges. Moreover, motivation to err on the side of facilitating travel is compelling politically. The United States has a very large travel and tourism industry. In 2013, it accounted for 2.6% of U.S. gross domestic product and directly employed nearly 5.4 million Americans. International travelers spent approximately $215 billion in 2013 on passenger fares and travel-related goods and services, which makes tourism the United States’ single-largest services sector export.

    Aliens who are citizens of countries participating in the VWP can obtain authorization to visit the United States without a visa by registering for the program online using the Electronic System for Travel Authorization [ESTA] system. According to Homeland Security Department (DHS) Secretary Jeh Charles Johnson, efforts have been made to increase the security of the ESTA system. For instance, ESTA information is screened against the same counterterrorism and law enforcement databases that are used to screen travelers who have visas.

    I do not doubt that DHS has been trying to make the VWP more secure, but the fact remains that once an applicant has completed an online application and received approval, he/she just needs a valid passport from one of the VWP countries to board a flight to the United States and seek admission. The only remaining barrier to entering the United States is the U.S Customs and Border Protection (CBP) officer at the port of entry who stamps passports after asking a few questions.

    In contrast, aliens who are not citizens of a VWP country generally need a visa to enter the United States as visitors for business or pleasure, and this is a more involved process than the one for the VWP. First, the person seeking a visitor’s visa must complete an online visa application, Form DS-160, which among other things requires the applicant to upload a photograph of himself/herself. If the applicant is between the ages of 14 and 79, an interview also is required. In addition to a passport, Form DS-160 confirmation, and an application fee payment receipt, additional documentation may be required to establish such things as the purpose of the trip, evidence of intent to depart the United States at the end of the trip, and evidence of ability to pay all costs of the trip. During the interview, a consular officer will determine whether the applicant is qualified to receive a visitor’s visa, and, if so, which visa category is appropriate. Then the person’s fingerprints are taken with digital fingerprint scans. This makes it possible to run checks against databases that use biometrics, such as the Automated Biometric Identification System (IDENT) and FBI’s Integrated Automated Fingerprint Identification System (IAFIS). Other requirements may apply depending on the circumstances of the individual applicant and the requirements of the consulate office at which the interview is being conducted.

    Secretary Jeh also mentioned the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015, which placed additional restrictions on eligibility for travel to the U.S. without a visa under the VWP. It was moved through the legislative process rapidly in reaction to the terrorist attacks in Europe which occurred in VWP countries. Its measures include excluding aliens from the VWP who have been present, at any time on or after March 1, 2011, (I) in Iraq or Syria; (II) in a country that is designated by the Secretary of State as a country, the government of which has repeatedly provided support for acts of international terrorism; or (III) in any other country or area of concern designated by the DHS Secretary. DHS has added three countries – Libya, Yemen, and Somalia.

    The Visa Waiver Improvement and Terrorist Prevention Act satisfied the political need to do something, but it is not going to prevent terrorists from using the VWP to come here without visas. ISIS and other terrorist organizations have or can recruit citizens of Visa Waiver countries who will not be excluded from the VWP under that Act. When the terrorists in VWP countries decide that it is time to attack the United States, they will have no difficulty using the VWP to come here. The door is still wide open.

    Our government is not limited to choosing between the ineffective screening of the VWP and the more thorough screening of the application process for a nonimmigrant visitor’s visa. Alternatives are available that would fall between those two in terms of security and convenience for the alien travelers, such as a modified version of the CBP’s Global Entry program, which allows expedited clearance for pre-approved, low-risk travelers upon arrival in the United States. At airports, the program members go to Global Entry kiosks and present their machine-readable passport or U.S. permanent resident card, place their fingerprints on a scanner for fingerprint verification, and complete a customs declaration. The kiosk issues a transaction receipt and directs the traveler to the baggage claim and the exit. While it is unlikely that all of the aliens currently using the VWP would be able to pass the more rigorous screening of such a program, many and perhaps most of them would. The result would be an initial screening that would include fingerprints, facial photographs, and perhaps other biometrics which would permit checks against databases that use biometric data. And subsequent entries could be authorized using an abbreviated form of the current ESTA system. This would result in a very substantial increase in the government’s ability to identify terrorists seeking to travel to the United States without greatly inconveniencing alien travelers who are bona fide visitors.

    Published originally on Huffington Post.

    About The Autho
    Nolan Rappaport was detailed to the House Judiciary Committee as anExecutive Branch Immigration Law Expert for three years; he subsequentlyserved as the immigration counsel for the Subcommittee on Immigration, BorderSecurity, and Claims for four years. Prior to working on the Judiciary Committee,he wrote decisions for the Board of Immigration Appeals for twenty years. Healso has been a policy advisor for the DHS Office of Information Sharing andCollaboration under a contract with TKC Communications, and he has been inprivate practice as an immigration lawyer at Steptoe & Johnson.

  3. Will Muslim Americans be put in internment camps if more 9/11 attacks occur? by Nolan Rappaport

    Those who cannot remember the past are condemned to repeat it. While the possibility of internment camps for Muslim Americans may sound farfetched, it happened to Japanese Americans in World War II. Understanding how it happened to the Japanese Americans might help us to prevent it from happening again.

    A series of attacks by radical jihadist terrorists like the ones in Europe probably would not result in the internment of Muslim Americans, but an ongoing series of attacks as horrific as 9/11 would be a different matter. The fear and anger that would produce would be hard to control.

    The events leading to the internment of Japanese Americans began at 7:55 a.m. on December 7, 1941, when hundreds of Japanese fighter planes attacked the American naval base at Pearl Harbor near Honolulu, Hawaii. The Japanese fighter planes destroyed almost 20 American naval vessels, including eight large battleships, and more than 300 airplanes. They also killed more than 2,000 Americans soldiers and sailors, and wounded another 1,000. Later that day, President Franklin D. Roosevelt issued a proclamation authorizing the removal of Japanese enemy aliens from the United States. The next day, he declared war on Japan. And four months later, he sent 16 B25 bombers on a secret mission to show that we could strike the interior of Japan. They bombed factory areas, oil storage facilities, and military installations in Tokyo.

    The Japanese American interments were not directed at the entire Japanese American population. Approximately 275,000 Japanese immigrants settled in Hawaii and on the mainland of the United States between 1861 and 1940, but the Japanese in Hawaii were not included in the interments even though the internment order was a reaction to the Japanese attack on a naval base near Honolulu, Hawaii. It was limited to the Japanese who had settled on the West Coast. Although the Japanese farmers worked less than 4% of California’s farmland in 1940, they produced more than 10% of the total value of the state’s farm resources, which I think explains why civilian lobbyists from California joined the American military leaders in pressuring Congress and President Roosevelt to remove the Japanese Americans from the West Coast. The military leaders expected a Japanese invasion on the West Coast and were afraid that the Japanese Americans would provide behind the lines assistance to the invading army. Their views prevailed. On February 19, 1942, President Franklin D. Roosevelt issued Executive Order 9066, which forced all Japanese Americans, regardless of loyalty or citizenship, to leave the West Coast. Congress implemented the order on March 21, 1942, by passing Public Law 503.

    The government relocated more than 120,000 people to internment camps located across the country. Approximately 70,000 of them were American citizens. The government made no charges against them, and they could not appeal their incarcerations. All of them lost their personal liberties; most also lost homes and property. The internments included more than 300 Italian Americans and more than 5,000 German residents.

    The internments were challenged in court and the case ultimately was heard by the U.S. Supreme Court. In Korematsu v. United States, 323 U.S. 214 (1944), Fred Korematsu, a United States citizen, argued that he had been imprisoned in a concentration camp solely because of his ancestry, without evidence or inquiry concerning his loyalty or disposition towards the United States. The Court found that to cast this case into outlines of racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue. Korematsu was not excluded from the West Coast because of hostility towards him or his race. He was excluded because we were at war with the Japanese Empire, and American military authorities feared an invasion of our West Coast. They decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be removed from the West Coast temporarily, and Congress, reposing its confidence in this time of war in our military leaders, determined that they should have the power to do it.

    It is conceivable that a similar argument could be made to put Muslim Americans in internment camps in the midst of an ongoing series of horrific terrorist attacks, but it seems extremely unlikely that the internments would be directed at the entire Muslim population.

    The Japanese American interments were not directed at the entire Japanese population. The Japanese Americans in Hawaii were not included in the interments even though the internment order was a reaction to the Japanese attack on a naval base at Pearl Harbor near Honolulu, Hawaii. It was limited to the Japanese who had settled on the West Coast, which is where the perceived invasion threat existed.

    In contrast, putting the entire population of Muslim Americans in internment camps on the basis of a threat from a few terrorist organizations probably would be viewed by the courts as racism. It would be farfetched to claim that most or even many Muslim Americans would actively support terrorist attacks on America.

    The interments almost certainly would have to be limited to Muslim Americans who might actually be terrorists or terrorist supporters. This would be similar to the way our Justice Department limited the National Security Entry-Exit Registration System (NSEERS) program, which was established after 9/11 to identify terrorists as quickly as possible. NSEERS only applied to males 16 years of age or older who were nationals or citizens of specified countries. Nevertheless, even the interment of a relatively small number of Muslim Americans without evidence of terrorist involvement would run counter to American values. Moreover, it could alienate the Muslim community, and their help would be needed to identify and locate the terrorists.

    Published originally in Huffington Post


    About the Author
    Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years; he subsequently served as the immigration counsel for the Subcommittee on Immigration, Border Security, and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for twenty years. He also has been a policy advisor for the DHS Office of Information Sharing and Collaboration under a contract with TKC Communications, and he has been in private practice as an immigration lawyer at Steptoe & Johnson.
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