Contrary to the perception that arose at the time of Mezer's arrest, he was not a known terrorist who U.S. immigration authorities inappropriately allowed to travel around the United States while awaiting deportation. Mezer did not claim that he was (falsely) accused of being a member of Hamas until after he was released on bond. In addition, this kind of claim is commonly made in asylum applications. The INS had no evidence that he was in fact a terrorist when it began the proceedings against him, and we did not find that any of the individuals involved in his case acted improperly.
However, his case exposes pervasive and long-standing weaknesses in the immigration process that are not unique to this matter. First, Mezer's easy entry to Canada and his ability to remain there while he repeatedly attempted to illegally enter the United States demonstrates part of the difficulty in controlling illegal immigration into the United States.
Second, Mezer's case also shows the inadequacy of INS resources for preventing illegal immigration along the northwest border. With an average of four Border Patrol agents in the Lynden and Blaine stations covering 102 miles of the northern border, and no coverage of the border from midnight until the morning, it is surprising that Mezer was apprehended once, much less three times, within approximately six months.
Third, the virtual impunity from prosecution that aliens face when they are caught illegally entering the United States is also made apparent by Mezer's case. Border Patrol statistics show that most illegal aliens who are apprehended entering the United States from Canada are voluntarily returned without any criminal or immigration consequences. Despite twice being caught attempting to enter the United States illegally within one week, Mezer was simply returned voluntarily to Canada each time. INS and law enforcement authorities do not normally prosecute or even detain aliens who are caught attempting to enter the United States, and they are typically returned to Canada voluntarily, able to try again at any time.
The mistaken suspicion that Mezer was an alien smuggler did not affect the Border Patrol's treatment of him. The suspicion appeared to be based on a misunderstanding about a reference in a Canadian database, which was told to and repeated by the National Park Service to the Border Patrol. Once expressed, this suspicion took on a life of its own. During Mezer's first apprehension in June 1996, a National Park Service supervisor became aware of the information from a Canadian database linking Mezer and another man with "suspicious activity" near the border. In fact, there was no evidence that the incident involved alien smuggling, and Mezer was not even contacted by Canadian authorities, much less arrested. From that point forward, all of the INS Border Patrol Reports, as well as several Intelligence Reports, claimed that Mezer was a suspected alien smuggler. We were unable to find any evidence supporting this suspicion.
We found that, considering the realities facing the U.S. immigration authorities, INS made reasonable efforts to secure Mezer's deportation and to have him detained pending deportation after his third arrest. At his January 27, 1997, hearing, Mezer agreed to accept an Order of Deportation to Canada, although Canada ultimately refused to accept his return. At this hearing and at the February 6, 1997, hearing, the INS trial attorneys raised Mezer's assault conviction and the (mistaken) suspicion that Mezer was an alien smuggler in an attempt to retain the initial bond amount of $15,000. Based on Mezer's oral representations that he had friends who were cab drivers in Seattle and relatives in Chicago, the judge reduced the bond to $5,000. Although this was not an unusually low bond compared to other cases, it is also clear that scrutiny of an alien's risk of flight is not close, and representations made by aliens are not verified.
The information that Mezer was even suspected of associating with a terrorist organization first became available to the INS just before the April 7, 1997, hearing when Mezer submitted an asylum application asserting that the Israelis had mistreated him, in part because they suspected that he was a member of Hamas. Both the INS trial attorney and the Immigration Judge missed the reference to Hamas in the application, but it was not relevant to the purpose of that day's hearing. Both said that it would not have made a difference even if they had seen the information, because an asylum applicant's assertion that he was falsely accused of being a member of a terrorist group is common, and there was no proof that Mezer actually was tied to Hamas.
Mezer's case demonstrates significant differences of understanding as to which federal agencies check for information regarding whether an asylum applicant is a terrorist. The immigration court and INS asylum officers thought that the Department of State checks its databases for information about individual terrorists. Department of State officials said that they thought that INS and its asylum officers had access to such information and conducted these checks. In fact, absent unusual circumstances, the Department of State does not check for terrorist information. And there is no single INS entity responsible for assuring that terrorism checks are performed for all aliens or all asylum applicants. While we were told that individual Border Patrol Stations have access to the State Department's "Tipoff" system, which contains information about suspected terrorists, it is not clear whether individual Border Patrol offices routinely check this information when an alien is detained. Even more significantly, we were told that no terrorism checks are performed either by INS or by the Department of State on the vast majority of the asylum applications that are submitted by asylum officers -- more than 90 percent of the 150,000 asylum application filed annually. While we have no indication that any information was available indicating that Mezer was a terrorist, we believe that Mezer's case shows that the INS and the State Department need to coordinate more closely on appropriate procedures for accessing and sharing any information suggesting that a detained alien or an asylum applicant may be a terrorist.
On July 31, 1997, Lafi Khalil was arrested along with Mezer in the Brooklyn apartment and charged with conspiring to bomb the New York subway. At least one newspaper account reported shortly after their arrest that in 1996, Khalil had travelled from the West Bank of Israel to Mexico and "reached Los Angeles on a visitor's visa." It was further reported that Khalil remained in the United States when the visitor's visa expired in December 1996.
As we describe below, this account was inaccurate. In November 1996, Khalil received a C-1 transit visa from a United States Consular Officer in Israel so that he could transit through the United States when travelling from Israel to Ecuador. The transit visa authorized Khalil to be admitted to the United States for a maximum period of 29 days while in transit to Ecuador. On December 7, 1996, Khalil arrived at JFK Airport. He presented his passport with the U.S. visa to an INS immigration inspector, who mistakenly admitted Khalil to the United States on a B-2 tourist visa, which allowed Khalil to stay in the United States for six months. Khalil never left the United States, even after the six-month visa expired, and he was arrested in the Brooklyn apartment on July 31, 1997.
The following describes the background of how Khalil received his transit visa in Israel and what happened when he came to JFK Airport. We detail the explanations given by the Consular Officer who granted Khalil the C-1 visa and the immigration inspector who mistakenly gave him the B-2 visa at JFK Airport. We also describe how these visas are normally granted.
Khalil was born October 24, 1974, in Ajoul, Ramallah, on the West Bank of Israel. On June 26, 1995, Khalil obtained a Jordanian passport in Amman, Jordan, which was valid for two years. Khalil gave his passport to a man named Abu Shanab in Ramallah, Jordan, and agreed to pay Shanab several hundred dollars to obtain an Ecuador visa for the passport. After Khalil accumulated the money for the visa, Shanab returned the passport to Khalil with a valid Ecuador visa, dated November 14, 1996. The visa authorized multiple entries into Ecuador for a 90-day period, until February 6, 1997.
1. Khalil applies for a U.S. visa
On November 25, 1996, Khalil went to the American Consular Office in Jerusalem, Israel, and applied for a United States visa so that he could travel through the United States to Ecuador. Kathleen Riley was the American Consular Officer who spoke with Khalil. She has served at this post for four years, supervising other American consular employees, referred to as Vice Consuls. Riley and the Vice Consuls interview visa applicants and determine whether to issue them U.S. visas. Although Riley had various supervisory responsibilities, she assisted in the interview of visa applicants on November 25, 1996, the day Khalil came to the American Consular Office. Riley interviewed Khalil and processed his visa application.
According to Riley, on November 25, 1996, Khalil filled out his visa application with her assistance.29 Riley told the OIG that her interview of Khalil and review of his application took a total of approximately 2 to 3 minutes. In response to the questions on the visa application, Khalil stated that he was a Jordanian national, born in 1974 in Ajoul, Ramallah, West Bank, that he lived in that region with his family, and that he owned part of a farm. Khalil was not asked for and did not provide any documentary proof for these assertions. His application did not contain responses to questions regarding his address in Israel, his home or business telephone numbers, the names of any individuals with whom he would be traveling or would be visiting in Ecuador, or how he would support himself when in the United States or in Ecuador. The application form was not signed either by Khalil or Riley. Riley said to us after reviewing the application that it was "sloppily" completed. She added that many of the applicants do not even speak English, although she did not recall how well Khalil spoke English. Riley said that her office was currently attempting to ensure that visa applications are completed more thoroughly.
Riley said that Khalil showed her his Jordanian passport with the Ecuador visa, and explained that he needed authorization to transit through the United States to visit an uncle in Ecuador. Riley stated that this was not an unusual request, because many Palestinians in the region have relatives in South America. Riley said that she assumed that either the United States was Khalil's only route to Ecuador or, if there were other routes, it was less expensive for him to travel through the United States to Ecuador than on the alternate routes. An INS official confirmed to us that there are no direct flights from Israel or Jordan to Ecuador, and the United States is a hub for connecting flights between these countries.
Riley recalled that Khalil told her that he was only traveling to the United States to catch a connecting flight to Ecuador and he did not express any desire or any reason to enter the United States. Khalil's visa application stated that the purpose of his travel to the United States was "to travel to Ecuador/transit only." In response to another question on the application, Riley wrote that the period of Khalil's intended stay in the United States was "transit, 1-2 days."
Riley told us that she thought that Khalil should have a visa giving him at least "1-2 days" in the United States in case there were any problems with Khalil's connecting flight. She pointed out that individuals who meet the criteria for a C-1 visa -- which she believed Khalil did -- are entitled to enter the United States for a reasonable period, up to 29 days, whether or not they intend to immediately transit to another country. Riley said that it was the INS' responsibility, not hers, to determine if the individual's stay should be restricted to less than the 29 days authorized by a C-1 transit visa.30
2. The visa requirement
Riley told us that she understood that a U.S visa was an absolute prerequisite for any individual to board a flight from Israel to the United States, even if the traveller was continuing to another country. Riley explained that it was her understanding that the airlines faced fines from the INS if they transported any individual to the United States without a valid U.S visa. Riley said that one of the reasons for the visa requirement was that the INS and airlines knew that visa recipients undergo security checks for terrorist activities or terrorist associations. Riley explained that her office checks all visa applicants through the State Department's CLASS system, which, as explained above, includes information about suspected terrorists from the State Department's "Tipoff" database.31
Riley said that her inquiry about Khalil did not identify any negative information. Riley added that, based on her understanding of this policy, she was certain that either the airlines or the Israeli authorities would have prevented Khalil from boarding a plane bound for the United States if he did not have a valid U.S. visa.
According to INS regulations, there was a way for Khalil to travel from Israel or Jordan through the United States to Ecuador, without a U.S. visa. According to the Immigration and Naturalization Act, the visa requirement only applies "if a visa was required under this Act or regulations issued thereunder." See 8 U.S.C § 1323(a). Both the INS and State Department regulations provide an exception to the visa requirement: the Transit Without Visa (twov) exception. Under this exception, an alien can travel to the United States without having to obtain a U.S. visa, but must remain in the U.S. airport or in the custody of the airline until boarding a connecting flight to the final destination. See 22 CFR §41.2(i); 8 CFR § 214.2(c); 9 FAM 41.2(i).
Because of the lack of security checks on persons travelling in a twov status, the INS only authorizes a limited number of "signatory carriers" to perform "twov" service. See 9 FAM § 41.2, Exh. IV, "List of INA 238(c) Signatory Transportation Lines." The airlines must ensure that the traveler is from a country that is authorized for the twov program,32 has legitimate documents establishing his admissibility to the destination country, has a confirmed onward reservation for at least the next country beyond the United States, will continue his journey within 8 hours after his arrival in the United States or on the next available flight, and upon arrival at the U.S. airport will not enter the United States before boarding the next flight to his ultimate destination. See 8 CFR § 214.2(c). Airlines are subject to a $3,000 fine for failing to ensure that travellers meet these requirements.
Coming from Jordan, Khalil was eligible to travel through the United States in twov status. An INS official told us that there are at least three airlines that fly twov passengers from Jordan or Israel through the United States -- El Al and TWA from Israel and Royal Jordanian from Jordan.
Riley told us that the she did not fully understand all of the procedures associated with the transit without visa program, but that in any event, the program was not feasible for Palestinians traveling from the West Bank. Riley said that while the concept of transit without visa may be applicable in many places, it simply is not an option which the consular officer in Jerusalem is able to utilize. Riley explained that the Israeli government required Palestinians from the West Bank to obtain a one-day special permit just to pass through military checkpoints to reach Ben Gurion Airport, the only international airport in Israel. Riley said that it is her understanding that guards at these checkpoints will prevent Palestinians without travel documents, including a U.S. visa, from going to the airport. Riley further said that based on her experience, even if the Palestinian traveler managed to reach the airport, security procedures are strict, particularly for Palestinians, and someone trying to get on a plane to the U.S. without a visa would likely be held, questioned, and possibly incarcerated by airport security. As a result, Riley told the OIG that she did not believe that the transit without visa program was an option for Khalil.
Riley stated that Khalil did not apply for a particular category of visa but that she selected the C-1 transit visa because it was the minimum visa category she thought would allow Khalil to travel to the United States to catch a connecting flight to Ecuador. While federal regulations state that aliens with C-1 visas must be in "immediate and continuous transit through the United States" (8 U.S.C. § 1101(a)(15)(C)), the holders of these visas are actually admitted to the United States. The only restriction on their stay is that they must leave the United States for their ultimate destination within 29 days, unless the period of stay is limited further by the INS. See 8 CFR § 214.2(c)(3). As stated in State Department training materials for Consular Officers, once a person with a C-1 transit visa arrives in the United States, they "are not required to remain in the transit lounge at the airport. They can visit friends, see a show, etc. . . . so long as they continue their journey within the authorized period of stay." See State Department Self-Instructional Guide for Visas: Nonimmigrant Visa Classification, p. 30 (April 1996).
Riley said that she was aware of a general concern about persons with C-1 visas remaining in the United States beyond the authorized 29-day period, and the particular concern pertaining to young, single males without established jobs or family ties in their country of origin. Riley stated, however, that each case must be decided on an individual basis and that she was not expected to treat Palestinians any differently as a group than other individuals.
Every alien, with certain exceptions not relevant here, is presumed to be an immigrant unless the alien establishes to the satisfaction of the Consular Officer at the time of his application for the visa, and to the immigration inspector at the time of his application for admission to the United States, that he is entitled to a nonimmigrant status. See 8 U.S.C. § 1184(b); 9 FAM § 41.11(a). Specifically, a C-1 applicant needs to satisfy both the Consular Officer and the immigration inspector that he is "an alien in immediate and continuous transit through the United States." See 8 U.S.C. § 1101(a)(15)(C). The burden of proof is on the applicant.
State Department regulations provide that to approve a visa in this classification, the Consular Officer must be satisfied that the alien:
(1) Intends to pass in immediate and continuous transit through the United States;
(2) Is in possession of a common carrier ticket or other evidence of transportation arrangements to the alien's destination;
(3) Is in possession of sufficient funds to carry out the purpose of the transit journey, or has sufficient funds otherwise available for that purpose; and
(4) Has permission to enter some country other than the United States following the transit through the United States, unless the alien submits satisfactory evidence that such advance permission is not required. 22 CFR § 41.71(a).
Riley said that she believed that Khalil had satisfied the first standard -- that he intended to pass in immediate and continuous transit through the United States -- based on his statements that he had family in Ecuador and in Israel, and owned part of a farm in Israel. Riley said that she decides whether to issue a visa based partly on "gut feeling" and that if she believes that a visa applicant is likely to stay in the United States, she will not grant him a visa. Riley also said that the most important factor in her interview is whether she believes the applicant, and nothing stood out in Khalil's interview that led her to doubt his claims. Riley said that many Palestinians have family in South America, and that it would not be unusual for Khalil to travel to Ecuador to visit an uncle, as he claimed he intended. Riley added that she knew it was less expensive to travel from Israel to Ecuador through the United States than on other routes. Riley also said that it was common for young men in the region to have joint ownership of a farm with family members, and that such an individual would be strongly motivated to return to Israel to avoid having the land seized by the Israelis. Riley further reasoned that if Khalil did not return to Israel, he would be more likely to stay in Ecuador than in the United States, since he said he had family in Ecuador.
Riley acknowledged that she could have requested documentation to verify Khalil's claims or corroborate that he had a motivation to return to Israel. For example, visa applicants can document ties in Israel with a marriage certificate or documents showing monetary possessions in Israel such as investments, a house, or ownership of land. According to State Department instructional materials, self-employed individuals can provide other examples of documentation verifying their claims. The materials state that "merchants should be able to show a business license, perhaps a series of business tax returns, a business bank account of some duration, plus other contracts and records. Farmers should be able to demonstrate ownership of land and, if you need to ask, some knowledge of farming" (emphasis added). See "Consular General Self Instructional Guides for Visas: NonImmigrant Visa Interviewing," p. 18.
Riley said that she did not require this kind of documentation from Khalil, noting that there was no hard and fast rule as to what is needed from an applicant. Riley noted that even if she had requested such documentation, many of these criteria would be inapplicable to a young, single male such as Khalil. She said that while she could have required Khalil to provide evidence of his ownership or part-ownership of the farm, this documentation could always be fabricated, and the important thing to her was whether he appeared to be truthful. Riley said that it was important to ask for documentation when the interview raised a doubt about the applicant's claim, but that her interview of Khalil did not raise any such doubt in her mind.
With regard to the second criteria -- a ticket or evidence of other arrangements to the ultimate destination -- Riley admitted that she did not require Khalil to produce a ticket or confirmed travel arrangements to Ecuador.33 She did not consider it a requirement that the individual must have such a ticket. She said that her post encouraged applicants not to purchase tickets before their visa applications were decided, because they would waste considerable money on unused tickets if their applications were denied or a decision was not made by the date of the flight. When asked whether her post requires a person who receives a C-1 visa to subsequently provide some evidence that the person purchased a ticket to their ultimate destination, Riley said that there was not enough time to perform this type of follow-up inquiry.
Riley said that the third criteria -- evidence of sufficient funds for the transit journey -- was not generally required unless the Consular Officer had a "bad feeling" from the interview about the applicant. She said that there was no standard amount of money that was deemed adequate for such a journey, that applicants can always bring in fake documentation reflecting that they have access to funds when they do not, and that applicants who do not have sufficient funds at the time of the application often can obtain the funds before travelling.
Riley noted that Khalil did meet the fourth criteria -- permission to enter another country -- because of the Ecuador visa in his passport. She said that his Ecuador visa, in conjunction with his credibility, were the major reasons why she approved his C-1 visa.
Riley further commented that the consulate does not place any greater restrictions on the issuance of visas to Palestinians as a group. Each individual is judged based on his individual application. She emphasized that if Khalil was qualified for a C-1 visa, he was entitled to it. She added that she believed that she applied the appropriate standards for the issuance of Khalil's visa.
B. Khalil enters the United States
Contrary to Riley's expectation that Khalil would depart from Israel to the United States and then to Ecuador, the State Department confirmed through KLM flight manifests that on December 6, 1997, Khalil flew from Amman, Jordan to Amsterdam, Holland. After a brief layover in Amsterdam, he took another KLM flight to JFK Airport in New York, arriving on December 7. At JFK Airport, Khalil was admitted into the United States and boarded a connecting American Airlines flight to Syracuse, New York.34
JFK Airport is a major hub for international travelers into the United States. All international passengers who attempt to enter the United States are met by "Primary Immigration Inspectors," who review immigration documents for legitimacy, question travellers, determine their admissibility, and admit individuals into the United States under the appropriate immigration category. Primary immigration inspectors are supposed to arrange for "secondary" inspection of any individuals who do not appear to have proper documentation for entry into the United States. Secondary inspectors perform additional investigation while the individual is held in a secure area. Secondary inspectors have more time to question the traveller and to review more thoroughly his immigration documents. Secondary inspectors also have access to computers and telephones to assist their review, and sometimes communicate with consulates or embassies abroad to confirm the traveller's assertions.
Immigration Inspector Joubert Dupuy, who has worked for nine years as a primary immigration inspector at JFK Airport, admitted Khalil into the United States on the evening of December 7, 1996. Khalil showed Dupuy his Jordanian passport, which included the U.S. C-1 transit visa. As noted above, the C-1 transit visa was good for entry into the United States for a maximum period of 29 days.
However, Dupuy erroneously admitted Khalil by placing a "B-2" tourist visa stamp in Khalil's passport, authorizing Khalil to remain in the United States for six months, until June 6, 1997. When we interviewed Dupuy concerning why he had done this, Dupuy said that he and other INS immigration inspectors often have to review immigration documents very quickly. He said that INS inspectors are expected to complete "primary" inspections of passengers within 45 minutes of their arrival at the airport, even when several flights arrive at the same time. Although Dupuy did not remember Khalil specifically, Dupuy stated that, in the rush of inspecting passengers, he must not have noticed that Khalil's visa was a C-1 visa, and mistakenly believed it was a B-2 tourist visa. Dupuy said that this is an easy mistake to make because 90 percent of the U.S. visas he reviews are B-2 visas, and the only distinction between the B-2 and C-1 visas is a relatively small, typewritten entry.
Dupuy said that the brief time he has for performing each inspection forces him to focus almost entirely on whether the U.S. visa appears valid. Dupuy said that he ordinarily judges the validity of the visa by whether the edges of the photograph appear sharp and properly aligned, whether the margins on the visa page are a consistent width, and whether the visa page appears to be substituted in the passport. Dupuy's explanation for why he failed to notice the category of the visa, given that his focus was on the visa, was that he simply must have been concentrating on whether the visa was counterfeit or altered, rather than on the category of the visa, and he made a mistake.
At our request, the former Acting Director of Enforcement in INS Headquarters, Joseph Greene, reviewed a copy of Khalil's Jordanian passport and the page containing the U.S. visa. Greene stated that he was unable to explain how Dupuy could have mistaken the C-1 visa for a B-2 visa and said this type of mistake was extremely unusual. But Dupuy's supervisor, Supervisory Immigration Inspector Carol Rosenbloom, told us that because the vast majority of the visas that inspectors encounter are B-2 visa, when inspectors are busy they sometimes will mistake other visas, such as the F, H, or C visas, for a B-2 visa.
Dupuy also told us that given the time constraints involved in processing travellers, he relies on the U.S. Consular Officer who issues the visa, who has more time with the individual, to make a proper determination as to the admissibility of the individual. Dupuy reiterated that as long as there does not appear to be blatant photo or page substitution and the individual does not appear excessively nervous, Dupuy ordinarily admits the person based on the visa.
Yet, as noted above, the immigration inspector has responsibility, along with the Consular Officer, for confirming that the alien is entitled to be admitted to the United States. The INS Pocket Field Guide, a reference book of INS regulations and policies for immigration inspectors, states that when inspecting a traveler carrying a B-2 visa, as Dupuy said that he thought Khalil was carrying, the alien must present a valid passport and nonimmigrant visa, proof of a foreign residence that he does not intend to abandon, and proof of sufficient financial support during the period of stay in the United States. The INS Pocket Field Guide and training materials provided to immigration officers also state that aliens with a C-1 visa, which Khalil actually had, should also present evidence of tickets or assurance of other transportation to the destination, and permission to enter the foreign country (in the form of a visa or some other permission).35
Dupuy said that based on his normal reliance on the Consular Officer's interview of the visa applicant, he probably did not ask many questions relating to Khalil's ties in Israel or his financial means to support himself during the period of his stay in the United States. Dupuy admitted that even if he had recognized that Khalil had a C-1 transit visa, rather than a B-2 visa, Dupuy probably would not have required Khalil to meet the criteria set forth in both INS training materials and the INS Pocket Field Guide. Dupuy said that he believed that travelers with C-1 transit visas do not have to present proof of admissibility to another country, such as Ecuador, in order to be admitted into the United States. Dupuy reasoned that if the person had a valid C-1 transit visa, then the consulate must have determined that the person had a valid visa for their ultimate destination.
George Wetteland, Deputy Area Port Director at JFK Airport, told us that INS immigration inspectors do not normally examine or look for a visa to the traveller's ultimate destination, because some countries allow documents other than visas for admission, and immigration inspectors do not have the admission requirements for every country in the world at their disposal. Wetteland stated, for example, that a resident card may suffice for admission to some countries. Wetteland said that these variable admission criteria made it so easy to create fraudulent admission documents that it is futile to check documentation regarding admission to destination countries.
Dupuy also candidly told us that he would not require a traveller with a C-1 transit visa to produce a plane ticket to the traveller's ultimate destination because this would take too much time and would divert Dupuy from his primary goal of reviewing visa documents for legitimacy. Dupuy said that checking tickets of C-1 passengers is not a priority of inspectors at JFK Airport.
Dupuy's supervisor, Carol Rosenbloom, said that she would generally expect an immigration inspector to ask a C-1 traveler to show a plane ticket to the ultimate destination and also ask the traveller why he was entering the United States and how long he intended to stay. She said that if suspicions are developed based on these inquiries, the immigration inspector should send the traveller to "secondary" for additional questioning. Rosenbloom acknowledged that on rare occasions, passengers with C-1 transit visas are allowed to pass through primary inspection without a ticket to the next destination, based on the passenger's representation that he will purchase the ticket in the airport. Deputy Area Port Director Wetteland said that he expected inspectors to ask a traveller with a C-1 visa about his travel plans and how long he intends to remain in the United States. Wetteland said that if the individual is flying to another country by air, the individual should be asked to produce an airline ticket or, in lieu of a ticket, a travel reservation, booking, or receipt. If the individual intends to go to Canada or Mexico, the inspector should ask, at the least, to see reservations for a car rental or a bus ticket.
Dupuy told us that he probably would not have thought it unusual for a young Palestinian such as Khalil to be traveling to the United States with either a C-1 or a B-2 visa, and therefore would not have asked Khalil any further questions about his purpose for entering the United States. However, Rosenbloom stated that travelers from several Middle East countries, including Israel, are among those that inspectors tended to check most closely.36 Wetteland said that the general policy at the airport is to scrutinize individuals from the Middle East more closely than other passengers, although priorities at the JFK Airport change from time to time, and someone with a Jordanian passport is probably scrutinized less than a Palestinian with an Israeli travel document.
Finally, Dupuy disagreed with Consular Officer Riley's belief that the INS immigration officer should decide whether to restrict a person with a C-1 visa to a stay in the United States less than the maximum 29-day period. Dupuy said that immigration officers do not limit C-1 visa holders to less than the maximum 29 days allowed unless there is an indication on the visa itself that the alien's stay should be restricted, which is extremely rare.
INS training materials state, however, that the primary purpose of the C-1 visa is to allow the traveller to "pass through the U.S., not visit friends, relatives" and that the alien is "normally admitted [only] for [the] period of time necessary to effect transit." See Immigration Officer Academy Materials, Immigration Law 1, Lesson Plan Unit 5. See also 8 U.S.C. § 1101(a)(15)(C) (C-1 visas are intended for "immediate and continuous transit" through the United States).
Deputy Area Port Director Wetteland said that in practice, an alien traveling with a C-1 visa is never given the "short end of the stick" with regard to time to transit through the United States and will receive several days more than necessary or indicated on the departing airline tickets and ship departure schedules to remain in the United States. Wetteland said he would expect an inspector to have allowed Khalil at least several days in the United States before he was required to continue his travel to Ecuador. Dupuy, as well as supervisors Wetteland and Rosenbloom, noted that once Khalil was admitted to the United States for any period, he could have stayed here with little fear that the INS would track him down to deport him.
But, as noted above, these issues concerning the C-1 transit visa and what the immigration inspector should consider when reviewing such a visa did not arise in Khalil's case, because Dupuy failed to notice that Khalil had a C-1 visa. Instead, Dupuy mistakenly believed Khalil had a B-2 tourist visa and admitted him to the United States for six months.
After Khalil entered the United States on December 7, 1996, he had no further contact with the INS until his arrest on July 31, 1997. There is no indication that he left the country or made any attempt to extend the B-2 visa when it expired on June 6, 1997. As is typical with most visa overstays, the INS made no attempt to locate Khalil and deport him.37
29 Riley noted that many applicants such as Khalil do not fill out applications as thoroughly as necessary, and that as a timesaving procedure consular officers help the applicants write the answers to certain questions which they may not understand.
30 State Department training materials that are provided to consular officers state, in accord with Riley's statement:
The validity period shown in a nonimmigrant visa relates only to the period during which it may be used to apply for admission; it does not indicate the length of time the alien may spend in the U.S. It is Department policy to issue maximum validity visas.. . . Issuing maximum validity visas reduces consular workload and spares applicants the trouble of reapplication. The period for which the bearer of a nonimmigrant visa is authorized to remain in the U.S., called the "duration of stay", is determined by INS inspectors at the Port of Entry. A visa may be valid for several years and yet the visitor's authorized period of stay may be limited to a few weeks or even a few days.
* * *
In determining an individual's authorized period of stay, INS is guided primarily by the purpose for which the alien seeks to enter and the length of time it should reasonably take to accomplish this purpose.
See "Consulate General Self-Instructional Guide for Visas: Nonimmigrant Visa Classification," at p. 7 (April 1996) (emphasis added).
31 The Consular Lookout and Support System (CLASS) is an unclassified computerized system maintained by the Bureau of Consular Affairs and is available online to 115 embassies around the world. The CLASS database contains information about individuals obtained from foreign governments and agencies concerning their criminal histories and other pertinent information, as well as records of visa refusals by consular offices. CLASS also contains information from the "Tipoff" system, which identifies more than 7,000 suspected terrorists by name, date of birth, social security number, and country of origin in the CLASS system. If a consular officer obtains a "hit" for a suspected terrorist through the CLASS system, he or she must telephone the Tipoff program director for further information about the individual, which is classified.
32 As of April 25, 1997, State Department regulations prohibited airlines from using this exception for travellers from the following countries: Afghanistan, Bangladesh, Bosnia-Herzegovina, Croatia, Cuba, India, Iran, Iraq, Libya, Macedonia, North Korea, Pakistan, Serbia, Montenegro, Slovenia, Sri Lanka, and Vietnam.
33 State Department training materials state:
The inclusion of the word "immediate" in the 1952 Act (it did not appear in prior legislation) underscores the fact that transit aliens are supposed to have onward transportation arrangements that take them directly through the United States. Although the maximum allowable stay is 29 days, in practice the alien is usually admitted only until the next available onward transportation. (emphasis added)
See State Department Self-Instructional Guide for Visas: Nonimmigrant Visa Classification (April 1996), p. 29-30.
The term "immediate" contemplates a reasonably expeditious departure of the alien in the normal course of travel as the elements permit and assumes a prearranged itinerary without any unreasonable layover privileges. If the alien seeks layover privileges for purposes other than for transit through the United States, such as to visit friends or engage in sightseeing, the alien will have to qualify for the type of visa required for that purpose.
See 9 FAM § 41.71 N1 (emphasis added).
34 This information did not show any evidence that Khalil had a ticket to fly to Ecuador from the United States.
35 State Department training materials also note the responsibility of immigration officers in determining admissibility of travellers with visas:
A visa is not a guarantee of entry into the United States. Under American law, a visa is simply permission to apply for entry into the United States. The person (or persons) to whom the visa has been issued is subject to inspection at the port of entry by officials at the U.S. Immigration and Naturalization Service. INS officers permit entry to the great majority of applicants with visas, but they also have authority to deny admission.
Self-Instructional Guide for Visas: NonImmigrant Visa Classification.
36 Rosenbloom said that inspectors also tend to closely check individuals from the United Kingdom, the British West Indies, and Africa.
37 When an alien enters the United States with a visa, the permissible length of stay is stamped in his passport and also entered into an INS computer. When the alien departs the country, that information is also entered into an INS computer. There is no special unit within the INS that targets or monitors on a full-time basis the status or whereabouts of people who overstay their visas. The INS estimates that 40 percent of the approximately 5 million illegal aliens currently in the United States are persons who have overstayed their visas. An OIG report found that in 1996, the INS apprehended approximately 10,000 of the 2 million aliens who overstayed their visas. See OIG Inspections Report: "Inspection and Monitoring of Nonimmigrant Overstays" (June 1997). From fiscal year 1992 to fiscal year 1996, the number of apprehensions for illegal overstays has remained constant at about 10,000 per year. The OIG report confirmed that INS has no specific overstay enforcement program or even a complete and reliable system to track overstays.
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