Case 2:17-cv-00094-RAJ Document 112 Filed 02/08/18 Page 1 of 218 1 THE HONORABLE RICHARD A. JONES 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 9 10 11 12 13 ABDIQAFAR WAGAFE, et al., on behalf of themselves and others similarly situated, Plaintiffs, v. DONALD TRUMP, President of the United States, et al., 14 No. 17-cv-00094 RAJ DECLARATION OF LAURA K. HENNESSEY IN SUPPORT OF PLAINTIFFS’ MOTION TO COMPEL PRODUCTION OF DOCUMENTS RESPONSIVE TO RFPS 40, 41, AND 44 Defendants. 15 16 17 18 19 20 21 22 23 24 25 26 DECLARATION OF LAURA K. HENNESSEY (No. 17-cv-00094 RAJ) – 1 138390597.1 Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.35.8000 Fax: 206.359.9000 Case 2:17-cv-00094-RAJ Document 112 Filed 02/08/18 Page 2 of 218 1 I, Laura Hennessey, hereby declare: 2 1. I have personal knowledge of the facts stated below and am competent to testify 3 regarding the same. I am one of the attorneys for Plaintiffs in this matter, Wagafe v. Trump, 4 No. 17-cv-00094 RAJ. 5 2. Plaintiffs served their Second Request for Production of Documents on November 6 17, 2017. Defendants served their responses and objections to these Second RFPs on 7 December 18, 2017. Attached hereto as EXHIBIT A is a true and correct copy of Defendants’ 8 Objections and Responses to Plaintiffs’ Second Request for Production to Defendants. 9 3. On January 19, 2018, the parties held a telephonic meet and confer regarding 10 Defendants’ objections to Plaintiffs’ Second Request for Production of Documents. The 11 conference lasted for more than 90 minutes. Along with several of my co-counsel, I 12 participated in this call on behalf of Plaintiffs. 13 4. During this call, the parties discussed Defendants’ objections to producing 14 documents related to Plaintiffs’ Muslim Ban Class, which was made to RFPs 40, 41, and 44. 15 Defendants confirmed their position remained consistent with their written objections: 16 Defendants refuse to produce any documents exclusively relevant to the Muslim Ban Class 17 because (1) the named Plaintiffs’ applications have been adjudicated, which in their view 18 means there is no live issue for court determination, and (2) the Muslim Ban Class is not a 19 certified class. 20 5. During this call, the parties also discussed Defendants’ objections to producing 21 documents related to the Extreme Vetting Initiate being implemented by ICE. Defendants 22 refused to change their position that Plaintiffs are not entitled to discovery about ICE’s 23 Extreme Vetting Initiative and that Plaintiffs are not entitled to discovery from ICE, as a 24 subcomponent of DHS. 25 26 6. On January 26, 2018, the parties held another telephonic meet and confer. Along with several of my co-counsel, I participated in this call on behalf of Plaintiffs. During this DECLARATION OF LAURA K. HENNESSEY (No. 17-cv-00094 RAJ) – 1 138390597.1 Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.35.8000 Fax: 206.359.9000 Case 2:17-cv-00094-RAJ Document 112 Filed 02/08/18 Page 3 of 218 1 call, Plaintiffs requested that Defendants confirm whether their position concerning discovery 2 related to the Muslim Ban Class remained unchanged. Defendants advised they were actively 3 considering the issue, and would endeavor to confirm their position on January 31. On the 4 issue of discovery related to ICE’s Extreme Vetting Initiative, Defendants confirmed their 5 position remained unchanged, and the parties agreed they were at an impasse. 6 7. On January 31, 2018, the parties held another telephonic meet and confer. Along 7 with several of my co-counsel, I again participated in this call on behalf of Plaintiffs. During 8 this call, Defendants stated they could not confirm whether their position on the Muslim Ban 9 Class discovery had changed and whether the parties remained at an impasse, though they 10 would endeavor to address the issue the next day. Defendants also confirmed that their 11 position on the propriety of Plaintiffs’ discovery regarding the ICE Extreme Vetting Initiative 12 would not change, and Plaintiffs confirmed they would be filing a motion to compel on this 13 issue. 14 8. On February 2, 2018, Defendants confirmed via e-mail that their position on the 15 Muslim Ban Class discovery remains unchanged from that stated in their written objections 16 and during our January 19 conference. Attached as EXHIBIT B is a true and correct copy this 17 e-mail correspondence between myself and Ed White from February 1, 2018 to February 2, 18 2018. 19 9. Attached as EXHIBIT C is a true and correct copy of ICE-HIS, “Extreme Vetting 20 Initiative: STATEMENT OF OBJECTIVES (SOO),” June 12, 2017, available at 21 FedBizOpps.gov. 22 23 24 25 10. Attached as EXHIBIT D is a true and correct copy of a document produced by Defendants and bates-stamped DEF-00000080 - DEF-00000096. 11. Attached as EXHIBIT E is a true and correct copy of a document produced by Defendants and bates-stamped DEF-00001032 - DEF-00001038. 26 DECLARATION OF LAURA K. HENNESSEY (No. 17-cv-00094 RAJ) – 2 138390597.1 Case 2:17-cv-00094-RAJ Document 112 Filed 02/08/18 Page 4 of 218 1 12. Attached as EXHIBIT F is a true and correct copy of Written Testimony of DHS 2 Secretary Kirstjen Nielson, Senate Committee on the Judiciary, “Oversight of the U.S. 3 Department of Homeland Security,” Jan. 16, 2018, available at 4 https://www.dhs.gov/news/2018/01/16/written-testimony-dhs-secretary-kirstjen-nielsen-senate- 5 committee-judiciary-hearing. 6 13. Attached as EXHIBIT G is a true and correct copy of George Joseph, Draft DHS 7 Report Called for Long-Term Surveillance of Sunni Muslim Immigrants, FOREIGN POLICY, Feb. 8 5, 2018, available at http://foreignpolicy.com/2018/02/05/draft-dhs-report-surveillance-of- 9 muslim-immigrants/. 10 14. Attached at EXHIBIT H is a true and correct copy of George Joseph, Extreme 11 Digital Vetting of Visitors to the U.S. Moves Forward Under a New Name, ProPublica (Nov. 12 22, 2017), available at https://www.propublica.org/article/extreme-digital-vetting-of-visitors- 13 to-the-u-s-moves-forward-under-a-new-name. 14 15. Attached as EXHIBIT I is a true and correct copy of Executive Order 13780: 15 Protecting the Nation From Foreign Terrorist Entry Into the United States Initial Section 11 16 Report 9-10 (January 2018), available at 17 https://www.dhs.gov/sites/default/files/publications/Executive%20Order%2013780%20Section 18 %2011%20Report%20-%20Final.pdf. 19 16. Attached as EXHIBIT J is a true and correct copy of Office of the Inspector 20 General, DHS Implementation of Executive Order #13769 “Protecting the Nation From 21 Foreign Terrorist Entry Into the United States” (January 27, 2017), at 12 (Jan. 18, 2018), 22 available at https://www.oig.dhs.gov/sites/default/files/assets/2018-01/OIG-18-37-Jan18.pdf. 23 24 EXECUTED this 8th day of February, 2018, at Seattle, Washington. 25 /s/ Laura K. Hennessey Laura K. Hennessey 26 DECLARATION OF LAURA K. HENNESSEY (No. 17-cv-00094 RAJ) – 3 138390597.1 Case 2:17-cv-00094-RAJ Document 112 Filed 02/08/18 Page 5 of 218 1 2 3 4 5 6 7 CERTIFICATE OF SERVICE The undersigned certifies that on the dated indicated below, I caused service of the foregoing DECLARATION OF LAURA K. HENNESSEY IN SUPPORT OF PLAINTIFFS’ MOTION TO COMPEL PRODUCTION OF DOCUMENTS RESPONSIVE TO RFPS 40, 41, AND 44 via the CM/ECF system that will automatically send notice of such filing to all counsel of record herein. DATED this 8th day of February 2018, at Seattle, Washington. 8 9 By: s/Laura K. Hennessey Laura K. Hennessey #47447 Attorneys for Plaintiffs Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Telephone: 206.359.8000 Facsimile: 206.359.9000 Email: LHennessey@perkinscoie.c 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 CERTIFICATE OF SERVICE (No. 17-cv-00094 RAJ) – 1 138390597.1 Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.35.8000 Fax: 206.359.9000 Case Document 112 Filed 02/08/18 Page 6 of 218 EXHIBIT A Case 2:17-cv-00094-RAJ Document 112 Filed 02/08/18 Page 7 of 218 THE HONORABLE RICHARD A. JONES 1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 ABDIQAFAR WAGAFE, et al., on behalf of themselves and others similarly situated, 9 10 11 Plaintiffs, 12 v. 13 Defendants. 15 16 18 19 20 21 22 23 24 25 26 27 DEFENDANTS’ OBJECTIONS AND RESPONSES TO PLAINTIFFS’ SECOND REQUEST FOR PRODUCTION TO DEFENDANTS DONALD TRUMP, President of the United States, et al., 14 17 No. 17-cv-00094 RAJ COME NOW Defendants Donald Trump, President of the United States; United States Citizenship and Immigration Services; Kirstjen Nielsen, in her official capacity as Secretary of Homeland Security; L. Francis Cissna in his official capacity as Director of the U.S. Citizenship and Immigration Services; 1 Matthew D. Emrich, in his official capacity as Associate Director of the Fraud Detection and National Security Directorate of the U.S. Citizenship and Immigration Services (“FDNS”); and Daniel Renaud, in his official capacity as Associate Director of the Field Operations Directorate of the U.S. Citizenship and Immigration Services (collectively, “Defendants”), by and through 1 Secretary Kirstjen Nielsen is automatically substituted for her predecessor, Acting Secretary Elaine C. Duke, and Director L. Francis Cissna is automatically substituted for his predecessor, Acting Director James W. McCament. See Fed. R. Civ. P. 25(d). 28 DEFENDANTS’ OBJECTIONS AND RESPONSES TO PLAINTIFFS’ SECOND REQUEST FOR PRODUCTION OF DOCUMENTS - 1 (2:17-cv-00094-RAJ) UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 616-9131 Case 2:17-cv-00094-RAJ Document 112 Filed 02/08/18 Page 8 of 218 1 counsel, and provide the following responses to Plaintiffs’ Second Request for 2 Production of Documents, subject to the accompanying objections, without waiving and 3 expressly preserving all such objections. Defendants’ objections are based on 4 information known to Defendants at this time, and are made without prejudice to 5 additional objections should Defendants subsequently identify additional grounds for 6 objection. Defendants also submit these responses subject to: (a) any objections as to 7 competency, relevancy, materiality, privilege, and admissibility of any of the responses; 8 and (b) the right to object to other discovery procedures involving and relating to the 9 subject matter of the requests herein. 10 OBJECTIONS WHICH APPLY TO ALL REQUESTS FOR PRODUCTION 11 Defendants object to these discovery requests to the extent that they seek (a) 12 attorney work product, trial preparation material, or communications protected by the 13 attorney-client privilege, (b) information protected by the deliberative-process privilege, 14 the joint defense privilege, common interest privilege, law enforcement privilege, or 15 executive privilege; (c) material the disclosure of which would violate legitimate privacy 16 interests and expectations of persons not party to this litigation, including non-party class 17 members; or (d) any other applicable privilege. 18 Defendants object to these discovery requests (and the definitions and instructions 19 thereto) to the extent that they purport to impose obligations other than those imposed by 20 the Federal Rules of Civil Procedure, the Local Civil Rules of the U.S. District Court for 21 the Western District of Washington, or an order of the Court. 22 Defendants object to the discovery requests to the extent they call for production 23 of documents that are either not relevant to a claim or defense of any party or not 24 proportional to the needs of the case, considering the importance of the issues at stake in 25 the action, the parties’ relative access to relevant information, the parties’ resources, the 26 importance of the discovery in resolving the issues, and whether the burden of expense of 27 the proposed discovery outweighs its likely benefit. 28 DEFENDANTS’ OBJECTIONS AND RESPONSES TO PLAINTIFFS’ SECOND REQUEST FOR PRODUCTION OF DOCUMENTS - 2 (2:17-cv-00094-RAJ) UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 616-9131 Case 2:17-cv-00094-RAJ Document 112 Filed 02/08/18 Page 9 of 218 1 2 Defendants object to the discovery requests to the extent they are not reasonably limited in time or scope. 3 Defendants object to the discovery requests to the extent they require an unduly 4 burdensome and oppressive search. In particular, Defendants object to all requests for 5 Documents “referring” to a particular thing as such requests are not limited to those 6 having any logical or factual connection to any matter at issue in this litigation and are 7 likely to result in collection of voluminous responsive but irrelevant Documents. 8 9 Defendants object to the discovery request to the extent they call for documents that are publicly available, are already in the custody or control of Plaintiffs or Plaintiffs’ 10 counsel, are readily accessible to Plaintiffs, or that would otherwise be less burdensome 11 for Plaintiffs to obtain than Defendants. See Fed. R. Civ. P. 26(b)(2)(C)(i).Defendants 12 object to discovery requests to the extent they purport to demand the President and his 13 close advisors produce responsive documents, as the President and the President’s close 14 advisors are immune from injunctions in civil suits challenging official action as more 15 fully described herein. 16 Defendants further object to any discovery concerning Executive Order 13769 17 (“First EO”) as it was rescinded by Executive Order 13780 (“Second EO”) and all 18 injunctive relief Plaintiffs sought or seek with respect to the First EO is no longer 19 possible, as it is moot. Defendants further object to discovery concerning any provisions 20 of the Second EO that have “expired by their own terms,” as such provisions are moot. 21 Trump v. Hawaii, 2017 WL 4782860 (U.S. Oct. 24, 2017) (citing Burke v. Barnes, 479 22 U.S. 361, 33 (1987)). Defendants further object to any discovery regarding provisions of 23 the First or Second EO that were not pled in Plaintiffs’ complaint. Defendants further 24 object to any discovery regarding the First EO and Second EO that does not relate to 25 adjudicating adjustment-of-status or naturalization applications, as discovery into the 26 adjudication or handling of other types of benefit applications is neither relevant nor 27 proportional to the needs of this case. Defendants also object to discovery regarding the 28 DEFENDANTS’ OBJECTIONS AND RESPONSES TO PLAINTIFFS’ SECOND REQUEST FOR PRODUCTION OF DOCUMENTS - 3 (2:17-cv-00094-RAJ) UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 616-9131 Case 2:17-cv-00094-RAJ Document 112 Filed 02/08/18 Page 10 of 218 1 First EO or Second EO unless the documents sought relate to a program, policy, or 2 procedure that is intended to expand or modify CARRP, or are intended to “embody 3 CARRP in all but name.” ECF 69, at 15. 4 Defendants object to any and all discovery requests to the extent they seek 5 production of documents from non-party agencies or components of non-party agencies 6 and are not in compliance with the Touhy regulations of such agencies. See 22 C.F.R. 7 part 172; 30 C.F.R. part 516, app’x C; 32 C.F.R. part 1703. 8 Defendants assert attorney-client privilege over all written correspondence to or 9 from an attorney concerning the subject-matter of this litigation. Such correspondence 10 between Department of Justice attorneys and other attorneys employed by Defendants 11 will not be logged. Such correspondence between attorneys employed by Defendants and 12 other employees, subordinates, agents, or officers of Defendants or agencies will be 13 logged, but not produced if, after review, it is determined to fall within the attorney-client 14 communications privilege, another applicable privilege, or the attorney-work-product 15 doctrine. 16 Each and every response contained herein is subject to the above objections, 17 which apply to each and every response, regardless of whether a specific objection is 18 interposed in a specific response. The making of a specific objection in response to a 19 particular request is not intended to constitute a waiver of any other objection not 20 specifically referenced in the particular response. 21 Defendants specifically reserve the right to make further objections as necessary to 22 the extent that additional issues arise as to the meaning of and/or information sought by 23 discovery. 24 Defendants have not completed their investigation of the facts underlying this 25 case, have not completed their discovery and have not completed their preparation for 26 trial. Therefore, Defendants reserve the right to supplement these responses in 27 28 DEFENDANTS’ OBJECTIONS AND RESPONSES TO PLAINTIFFS’ SECOND REQUEST FOR PRODUCTION OF DOCUMENTS - 4 (2:17-cv-00094-RAJ) UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 616-9131 Case 2:17-cv-00094-RAJ Document 112 Filed 02/08/18 Page 11 of 218 1 accordance with Federal Rule of Civil Procedure 26(e), and to produce evidence at trial 2 of subsequently discovered facts. 3 ESTIMATED PRODUCTION TIMELINE 4 Defendants do not anticipate permitting inspection of any documents in the 5 possession, custody, or control of Defendants. Rather, Defendants shall produce non- 6 privileged, responsive documents on a rolling basis beginning no later than thirty days 7 after service of this document and shall substantially complete production by April 1, 8 2018. INSTRUCTIONS 9 10 11 12 13 The following instructions shall apply when responding to these requests for production: 1. Each request herein calls for production of all responsive Documents within Your possession, custody, or control, or that of Your agents, consultants, representatives, and, unless privileged, attorneys. 14 15 16 17 18 19 20 21 22 23 24 25 26 2. Without limitation of the term “control” as used in the preceding instruction, a Document is deemed to be in Your control if You have the right to secure the Document or a copy thereof from another Person having actual possession thereof. 3. Each Document request and subparagraph or subdivision thereof is to be answered separately. After each Document request, state whether all Documents responsive to that request are being produced. 4. Each Document request herein shall be deemed to be continuing and, in the event that additional Documents are later discovered or become known to You, further production is to be made hereto. 5. If You object to answering any of these requests, or withhold Documents from production in response to these requests, in whole or in part, state your objections and/or reasons for not producing and state all factual and legal justifications that you believe support your objection or failure to produce. 27 28 DEFENDANTS’ OBJECTIONS AND RESPONSES TO PLAINTIFFS’ SECOND REQUEST FOR PRODUCTION OF DOCUMENTS - 5 (2:17-cv-00094-RAJ) UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 616-9131 Case 2:17-cv-00094-RAJ Document 112 Filed 02/08/18 Page 12 of 218 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 6. If any requested Document has been lost, discarded, or destroyed, describe the Document as completely as possible, including: the name, title, and description of employment of each author or preparer of the Document; a complete description of the nature and subject matter of the Document; and the date on which and manner in which the Document was lost, discarded, destroyed, or otherwise disposed of. 7. If any part of a Document is responsive to a Document request, the whole Document is to be produced. 8. If You contend that it would be unreasonably burdensome to obtain and provide all of the Documents called for in response to any Document request or any subsection thereof, then in response to the appropriate Document request: a. Produce all such Documents as are available to You without undertaking what You contend to be an unreasonable request; b. Describe with particularity the efforts made by You or on Your behalf To produce such Documents; and c. State with particularity the grounds upon which You contend that additional efforts to produce such Documents would be unreasonable. 9. If any request is deemed to call for privileged Documents, and such privilege is asserted in order to avoid production, provide a list with respect to each Document withheld based on a claim of privilege, stating: the name of each author, the name of each recipient and addressee, the date of the Document, the general subject matter of the Document, the basis upon which the claim of privilege is asserted, and the Document request under which the production of the Document is called for. 10. In producing the Documents requested, You are requested to search electronic Documents, records, data, and any other electronically stored information (“ESI”) which may be stored in or on any electronic medium or device, including without limitation computers, network servers, computer hard drives, e-mails, and voicemails. Your production of any ESI should be produced in an electronic format permitting electronic search functionality, pursuant to the Parties’ stipulation, if any, regarding preservation and production of ESI. 28 DEFENDANTS’ OBJECTIONS AND RESPONSES TO PLAINTIFFS’ SECOND REQUEST FOR PRODUCTION OF DOCUMENTS - 6 (2:17-cv-00094-RAJ) UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 616-9131 Case 2:17-cv-00094-RAJ Document 112 Filed 02/08/18 Page 13 of 218 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 11. In producing records responsive to Document requests, please produce tangible Documents and records organized either (1) in separate groups responsive to specific requests or (2) in the format and organization in which the Documents are kept in the ordinary course of Your business. Please produce electronic Documents and records in Tagged Image File Format (“TIFF”), single page, black and white (or in color, if necessary, for any Document or its content to be readable), dithered (if appropriate), at 300 x 300 dpi resolution and 8½ x 11 inch page size, except for Documents requiring different resolution or page size to make them readable. Each TIFF Document should be produced with an image load file in standard Opticon (*.log) format that reflects the parent/child relationship. In addition, each TIFF Document should be produced with a data load file in Concordance delimited format (*.dat), indicating (at a minimum) appropriate unitization of the Documents, including beginning and ending production numbers for (a) each Document set, and (b) each attachment within each Document set. TIFF images should also be accompanied by extracted text or, for those files that do not have extracted text upon being processed, optical character recognition (“OCR”) text data; such extracted text or OCR text data should be provided in Document level form and named after the TIFF image. For Documents produced in TIFF format, metadata should be included with the data load files described above, and should include (at a minimum) the following information: file name (including extension); original file path; page count; creation date and time; last saved date and time; last modified date and time; author; custodian of the Document (that is, the custodian from whom the Document was collected or, if collected from a shared drive or server, the name of the shared driver or server); and MD5 hash value. In addition, for e-mail Documents, the data load files should also include the following metadata: sent date; sent time; received date; received time; “to” name(s) and address(es); “from” name and address; “cc” name(s) and address(es); “bcc” name(s) and address(es); subject; names of attachment(s); and attachment(s) count. All images and load files should be named or foldered in such a manner that all records can be imported without modification of any path or file name information. 24 25 26 OBJECTIONS TO INSTRUCTIONS 1. To the extent that any instructions are inconsistent with any Order of the Court, Defendants understand that the Order of the Court shall prevail. 27 28 DEFENDANTS’ OBJECTIONS AND RESPONSES TO PLAINTIFFS’ SECOND REQUEST FOR PRODUCTION OF DOCUMENTS - 7 (2:17-cv-00094-RAJ) UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 616-9131 Case 2:17-cv-00094-RAJ Document 112 Filed 02/08/18 Page 14 of 218 2. 1 Defendants object to Instructions Nos. 1 and 2 to the extent that they 2 conflict in any way with the Ninth Circuit’s standard for possession, custody, or control 3 which defines control as “the legal right to obtain upon demand.” In re Citric Acid Litig., 4 191 F.3d 1090, 1107 (9th Cir. 1999). 3. 5 Defendants object to Instruction No. 6 as unduly burdensome insofar as it 6 purports to require a document-by-document recounting, including, as completely as 7 possible the “name, title, and description of employment of each author or preparer of the 8 Document; a complete description of the nature and subject matter of the Document; and 9 the date on which and manner in which the Document was lost, discarded, destroyed, or 10 otherwise disposed of,” for every such responsive Document, without regard to the date 11 on which it was created, the date on which it was lost, discarded, destroyed, or otherwise 12 disposed of, or whether litigation involving the substance of the Document was 13 reasonably foreseeable at that time it was lost, discarded, destroyed or otherwise disposed 14 of. 4. 15 16 Defendants object to Instruction No. 7 to the extent that it calls for production of privileged material. 5. 17 Defendant object to Instruction No. 9 as an unduly burdensome 18 requirement and beyond the obligation for privilege logs as required under Federal Rule 19 of Civil Procedure 26(b)(5). Defendants reserve the right to create a categorical privilege 20 log. 21 6. Defendants object to Instructions Nos. 10 and 11 to the extent they are 22 inconsistent with the AGREEMENT REGARDING DISCOVERY OF 23 ELECTRONICALLY STORED INFORMATION AND ORDER, entered by the court 24 on August 29, 2017. Defendants intend to produce Documents as they are kept in the 25 normal course of business. 26 27 28 DEFENDANTS’ OBJECTIONS AND RESPONSES TO PLAINTIFFS’ SECOND REQUEST FOR PRODUCTION OF DOCUMENTS - 8 (2:17-cv-00094-RAJ) UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 616-9131 Case 2:17-cv-00094-RAJ Document 112 Filed 02/08/18 Page 15 of 218 DEFINITIONS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 The following definitions shall apply when responding to these requests for production: 1. “A,” “an,” and “any” include “all,” and “all” includes “a,” “an,” and “any.” All of these words should be construed as necessary to bring within the scope of these requests any Documents that might otherwise be construed to be outside of their scope. 2. “And” and “or” shall be construed either conjunctively or disjunctively, whichever makes the request more inclusive. 3. “CARRP” means the Controlled Application Review and Resolution Program, an internal vetting policy instituted by USCIS in April 2008. Upon information and belief, USCIS first outlined the parameters of CARRP in an April 11, 2008 memorandum addressed to field leadership from Deputy Director Jonathan R. Scharfen regarding “Policy for Vetting and Adjudicating Cases with National Security Concerns.” See Declaration of Jennifer Pasquarella in Support of Plaintiffs’ Motion for Class Certification, Dkt. 27, Ex. A. 4. “Communication” means the transmittal of information (in the form of facts, ideas, inquiries, or otherwise), and encompasses every medium of information transmittal, including but not limited to written, graphic, and electronic communication. 5. “Defendants,” “You,” “Your,” or any similar word or phrase includes each individual or entity responding to these requests and, where applicable, each subsidiary, parent, or affiliated entity of each such Person and all Persons acting on its or their behalf. 21 22 23 24 25 26 6. “Document” and its plural shall be interpreted in the broadest possible manner and shall mean all written, electronic, graphic, or printed matter of any kind in Your possession or control, however produced or reproduced, including all originals, drafts, working papers, and all non-identical copies, whether different from the originals by reason of any notation made on such copies or otherwise, and all other tangible things, including anything that would be a writing or recording as defined in Federal Rule of Evidence 1001(1) or as defined in Federal Rule of Civil Procedure 34(a). 27 28 DEFENDANTS’ OBJECTIONS AND RESPONSES TO PLAINTIFFS’ SECOND REQUEST FOR PRODUCTION OF DOCUMENTS - 9 (2:17-cv-00094-RAJ) UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 616-9131 Case 2:17-cv-00094-RAJ Document 112 Filed 02/08/18 Page 16 of 218 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 7. “Employee” means any director, trustee, officer, employee, agent, consultant, partner, reseller, distributor, corporate parent, subsidiary, affiliate, or servant of the designated entity, whether active or retired, fulltime or part-time, current or former, and compensated or not. 8. “Extreme Vetting Initiative” means the initiative of the same name by the U.S. Immigration and Customs and Customs Enforcement agency [sic] aimed to implement the President’s various Executive Orders, including but not limited to the First and Second EOs. 9. “First EO” means Executive Order 13769, entitled “Protecting the Nation from Foreign Terrorist Entry into the United States.” 82 Fed. Reg. 8977 (Feb. 1, 2017). 10. “Immigration Benefit Application” means any application or petition to confer, certify, change, adjust, or extend any status granted under the Immigration and Nationality Act. 11. “Muslim Ban Class” means the following class defined in Plaintiffs’ Second Amended Complaint: A national class of all persons currently and in the future (1) who are in the United States, (2) have or will have an application for an immigration benefit pending before USCIS, and (3) are a citizen or national of Syria, Iran, Yemen, Somalia, Sudan, or Libya. 12. “Naturalization Class” means the following class certified by the Court in its Order Granting Class Certification, Dkt. 69: A national class of all persons currently and in the future (1) who have or will have an application for naturalization pending before USCIS, (2) that is subject to CARRP or a successor “extreme vetting” program, and (3) that has not been or will not be adjudicated by USCIS within six months of having been filed. 13. “Person” means an individual, proprietorship, partnership, firm, corporation, association, governmental agency, or other organization or entity. 23 24 25 26 14. “Relate,” “reflect,” or “refer,” in all forms, means, in addition to the customary and usual meaning of those words, concerning, constituting, embodying, describing, evidencing, or having any logical or factual connection with the subject matter described. 27 28 DEFENDANTS’ OBJECTIONS AND RESPONSES TO PLAINTIFFS’ SECOND REQUEST FOR PRODUCTION OF DOCUMENTS - 10 (2:17-cv-00094-RAJ) UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 616-9131 Case 2:17-cv-00094-RAJ Document 112 Filed 02/08/18 Page 17 of 218 15. “Second Amended Complaint” means the Second Amended Complaint for Declaratory and Injunctive Relief, Dkt. 47, filed in the above-captioned action by Plaintiffs on April 4, 2017. 1 2 3 16. “Second EO” means Executive Order 13780, entitled “Protecting the Nation from Foreign Terrorist Entry into the United States.” 82 Fed. Reg. 13209 (Mar. 9, 2017). 4 5 17. “USCIS” means U.S. Citizenship and Immigration Services, a federal agency that is a component of the United States Department of Homeland Security and is headed by a director, currently James McCament. 6 7 8 18. Where appropriate, the singular form of a word should be interpreted in the plural and vice versa, to acquire the broadest possible meaning. 9 10 19. Any term defined herein shall have the indicated meaning whenever that term is used in these requests for production unless the context clearly requires otherwise. All defined terms are indicated by capitalizing the first letter of each term (except “and,” “or,” “relate,” “reflect,” and “refer”), as shown in the instructions and definitions above. 11 12 13 14 OBJECTIONS TO DEFINITIONS 15 1. 16 17 18 19 20 21 22 23 24 25 26 27 Defendants object to Definition No. 4 to the extent that it purports to encompass verbal communication, as such communication is outside the scope of Rule 34. 2. For purposes of Definition No. 5, Defendants understand “You” and “Your” with respect to Defendant Trump to extend to the White House Office as defined by Executive Order 8248, 4 Fed. Reg. 3864 (Sep. 8, 1939), as amended. Defendants do not understand Executive Branch entities further removed from the President to be “applicable” subsidiaries for purposes of this request, as such an understanding would require unduly burdensome and oppressive searches disproportionate to the needs of the case. For example, otherwise applicable subordinate agencies could be read to include the U.S. Department of Agriculture and the U.S. Department of Veterans Affairs, whose missions have no relation to the claims at issue in this matter. 28 DEFENDANTS’ OBJECTIONS AND RESPONSES TO PLAINTIFFS’ SECOND REQUEST FOR PRODUCTION OF DOCUMENTS - 11 (2:17-cv-00094-RAJ) UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 616-9131 Case 2:17-cv-00094-RAJ Document 112 Filed 02/08/18 Page 18 of 218 1 3. Defendants object to Definition No. 5 to the extent that Plaintiffs seek 2 discovery from the President, as the President is not subject to suit for injunctive relief in 3 the performance of his official duties and the potential benefit of responding to discovery 4 demands is exceedingly slight as compared to the burden of conducting the search and 5 the intrusion on the Executive. The Supreme Court requires Plaintiffs to make a 6 heightened showing of need before they can require a search for, and force the 7 government to determine whether to formally assert privileges with respect to, discovery 8 sought from the President or his close advisers. See Cheney v. U.S. Dist. Ct. for the Dist. 9 of Columbia, 542 U.S. 367 (2004) (reversing Court of Appeals decision that the Vice 10 President and other executive officials must first formally assert privilege before the 11 Court may address their separation-of-powers objections to discovery requests). 12 Plaintiffs have not made such showing. 13 The Supreme Court in Cheney directed that courts must take special care to ensure 14 that civil discovery requests do not intrude on the “public interest” in (1) “afford[ing] 15 Presidential confidentiality the greatest protection consistent with the fair administration 16 of justice”; and (2) “protecting the Executive Branch from vexatious litigation that might 17 distract it from the energetic performance of its constitutional duties.” Cheney, 542 U.S. 18 at 382. Courts have thus applied Cheney to require a heightened showing of need before 19 imposing the burden of responding to discovery, as the consideration and assertion of 20 applicable privileges in these circumstances must be a “last resort.” United States v. 21 McGraw-Hill Companies, Inc., 2014 WL 8662657, at *8 (C.D. Cal. Sept. 25, 2014); see 22 also Dairyland Power Co-op v. U.S., 79 Fed. Cl. 659, 662 (2007) (“The Court agrees 23 with the Government that, in the case of a discovery request aimed at the President and 24 his close advisors, the White House need not formally invoke the presidential 25 communications privilege until the party making the discovery request has shown a 26 heightened need for the information sought.”). 27 28 DEFENDANTS’ OBJECTIONS AND RESPONSES TO PLAINTIFFS’ SECOND REQUEST FOR PRODUCTION OF DOCUMENTS - 12 (2:17-cv-00094-RAJ) UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 616-9131 Case 2:17-cv-00094-RAJ Document 112 Filed 02/08/18 Page 19 of 218 1 A showing of heightened need is necessary because, as the Supreme Court has 2 recognized, the separation of powers under our Constitution is directly implicated by 3 subjecting the President to judicial process in matters arising out of the performance of 4 his official duties. Nixon v. Fitzgerald, 457 U.S. 731, 748-55 (1982); cf. Mississippi v. 5 Johnson, 71 U.S. 475, 501 (1866). This is motivated not solely by the concern for 6 maintaining Presidential confidentiality and preventing the need to address difficult 7 separation of powers issues, but also with the distractions created by the burden of 8 responding to discovery requests, and evaluating documents for the assertion of privilege, 9 in light of the President’s weighty official duties. See Cheney, 542 U.S. at 382, 385, 389- 10 90. The Cheney principle also properly avoids embroiling courts in difficult and 11 potentially unnecessary privilege issues implicating the separation of powers. Id. 12 A related principle further precludes discovery from the President in these 13 circumstances. A federal court cannot “enjoin the President in the performance of his 14 official duties.” See Mississippi, 71 U.S. at 501; see also County of Santa Clara v. Trump, 15 250 F. Supp. 3d 497, 540 (N.D. Cal. 2017) (“the extraordinary remedy of enjoining the 16 President himself is not appropriate”). A fortiori, a federal court likewise could not 17 compel the President to comply with a civil discovery request. Cf. Fitzgerald, 457 U.S. at 18 748-55 (holding that the President has absolute immunity for civil liability for acts within 19 his official responsibilities). That conclusion is grounded on the President’s “unique 20 constitutional position” and “respect for separation of powers.” See Franklin v. 21 Massachusetts, 505 U.S. 788, 800 (1992). Although the Supreme Court has recognized 22 limited exceptions permitting judicial process against the President, Clinton v. Jones, 520 23 U.S. 681, 703, 704 n.39 (1997) (civil discovery permitted where private, rather than 24 official, act was involved); United States v. Nixon, 418 U.S. 683, 710-13 (1974) 25 (permitting subpoena directed at President for use in criminal prosecution), neither of 26 those exceptions is relevant here. Indeed, Plaintiffs seek discovery concerning Executive 27 Orders issued pursuant to statutory authority – the zenith of the President’s constitutional 28 DEFENDANTS’ OBJECTIONS AND RESPONSES TO PLAINTIFFS’ SECOND REQUEST FOR PRODUCTION OF DOCUMENTS - 13 (2:17-cv-00094-RAJ) UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 616-9131 Case 2:17-cv-00094-RAJ Document 112 Filed 02/08/18 Page 20 of 218 1 role under Article II. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 2 (1952) (Jackson, J., concurring) (“When the President acts pursuant to an express or 3 implied authorization of Congress, his authority is at is maximum, for it includes all that 4 he possesses in his own right plus all that Congress can delegate.”). Under these 5 principles, the President is immune from civil injunctive action challenging his official 6 conduct. He therefore cannot properly be the subject of discovery in this civil litigation. 7 4. For purposes of Definition No. 4, Defendants understand “You” and 8 “Your” with respect to Defendant Nielsen to extend to the Office of the Secretary as that 9 term is used in the Homeland Security Act of 2003, Pub. L. No 107-296, 116 Stat. 2135 10 (Nov. 25 2002). Defendants do not understand subordinate Department of Homeland 11 Security directorates and agencies further removed from the Secretary to be “applicable” 12 subsidiaries for purposes of this request, as such an understanding would require unduly 13 burdensome and oppressive searches disproportionate to the needs of the case. For 14 example, otherwise applicable subordinate agencies could be read to include the U.S. 15 Coast Guard and the Federal Emergency Management Agency, whose missions have no 16 relation to the claims at issue in this matter. 17 18 19 5. Defendants object to Definition No .10 to the extent it includes benefit application types other than adjustment-of-status or naturalization applications. 6. While Defendants do not object to the contents of the definition of the 20 phrase “Muslim Ban Class” set out in Definition No. 11, Defendants do object to any 21 discovery related to that putative class as irrelevant to the actual claims at issue in this 22 case. For purposes of Definition No. 12, Defendants understand the class to exclude 23 former unnamed class members whose Naturalization Application were adjudicated after 24 the class was certified. See Fed. R. Civ. P. 82; Amchem Prods., Inc. v. Windsor, 521 U.S. 25 591, 612-13 (1997). 26 27 7. Defendants object to Definition No. 14 insofar as it purports to define “relate,” “reflect,” or “refer,” to include “any logical or factual connection with the 28 DEFENDANTS’ OBJECTIONS AND RESPONSES TO PLAINTIFFS’ SECOND REQUEST FOR PRODUCTION OF DOCUMENTS - 14 (2:17-cv-00094-RAJ) UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 616-9131 Case 2:17-cv-00094-RAJ Document 112 Filed 02/08/18 Page 21 of 218 1 subject matter described” as the use of any such terms are not proportional to the needs of 2 the case, overly broad, oppressive, and the burden of a request using any such term would 3 outweigh its benefit. Defendants further object to Definition 22 on the grounds that the 4 terms “relate,” “reflect,” and “refer,” as defined, are overlapping and therefore vague and 5 confusing. 6 7 8 8. Defendants object to Definition No. 17 to the extent that the Director of USCIS is L. Francis Cissna, not James McCament. OBJECTIONS AND RESPONSES TO REQUESTS FOR PRODUCTION 9 10 11 12 13 14 REQUEST FOR PRODUCTION NO. 40: All Documents referring or relating to any interpretation or implementation of the First EO or Second EO that would affect in any way the adjudication of immigration benefits petitions, applications, or requests of those individuals who are part of the Naturalization Class, the Adjustment of Status Class, or the Muslim Ban Class, including, but not limited to, all documents referring or relating to the Extreme Vetting Initiative by the U.S. Immigration and Customs Enforcement agency. 15 16 OBJECTIONS TO RFP NO. 40: 17 Defendants incorporate here by reference their earlier “Objections Which Apply to All 18 Requests for Production.” Defendants object to this request because it is not proportional 19 to the needs of the case, is not important to resolve issues, and the burden of complying 20 with the request outweighs its likely benefit. Defendants also object to this request to the 21 extent it seeks documents relating to the actual adjudication of individual benefit 22 applications (as opposed, e.g., to broadly applicable policy documents) as the search 23 required to identify such responsive documents (if any) would be unduly burdensome and 24 not proportional to the needs of this case. Furthermore, the request is unduly burdensome 25 because it calls for Defendants to search for and review pre-decisional documents subject 26 to the deliberative process privilege. In addition, Defendants object to this request to the 27 extent it seeks documents concerning the putative Muslim Ban Class, as any responsive 28 DEFENDANTS’ OBJECTIONS AND RESPONSES TO PLAINTIFFS’ SECOND REQUEST FOR PRODUCTION OF DOCUMENTS - 15 (2:17-cv-00094-RAJ) UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 616-9131 Case 2:17-cv-00094-RAJ Document 112 Filed 02/08/18 Page 22 of 218 1 documents would not be relevant to any live issue in this case. Defendants also object to 2 searching for documents held by U.S. Immigration and Customs Enforcement (“ICE”) as 3 ICE is not a party to this case and Plaintiffs have failed to comply with ICE’s Touhy 4 regulations. Moreover, ICE has no role in adjudicating adjustment-of-status or 5 naturalization applications. 6 Beyond this, Defendants object to this request to the extent it requests documents 7 other than those that refer or relate to interpretations or implementation of the First EO or 8 Second EO that affect adjudication of certified class members’ immigration benefit 9 applications, on the basis that they are considered to have an articulable link to a national 10 security ground for inadmissibility or removal. Defendants consider documents 11 reflecting interpretations or implementation of the EOs that would affect class members 12 only as members of some broader group, such as all benefit applicants, all adjustment-of- 13 status applicants, or all naturalization applicants, and not by virtue of their status as 14 having an articulable link to national security concerns, to be beyond the proper of scope 15 of discovery in this case based on the claims the Court has permitted to proceed past the 16 pleading stage of this case. 17 RESPONSE TO RFP NO. 40: 18 Notwithstanding these objections, Defendants will produce non-privileged Documents of 19 national scope that refer or relate to interpretation or implementation of the EOs in ways 20 that affect adjudication of adjustment-of-status and naturalization applications based on 21 the existence of an articulable link to a national security ground for inadmissibility or 22 removability to the extent such Documents exist and can be located after a reasonable 23 search. 24 25 26 REQUEST FOR PRODUCTION NO. 41: All Documents referring or relating to “the suspension of immigration petitions, applications, or requests involving Plaintiff Wagafe, Plaintiff Ostadhassan, Plaintiff Bengezi, and members of the Muslim Ban Class,” pursuant to the First or 27 28 DEFENDANTS’ OBJECTIONS AND RESPONSES TO PLAINTIFFS’ SECOND REQUEST FOR PRODUCTION OF DOCUMENTS - 16 (2:17-cv-00094-RAJ) UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 616-9131 Case 2:17-cv-00094-RAJ Document 112 Filed 02/08/18 Page 23 of 218 1 Second EOs, as described in the First and Second Claims for Relief outlined in Plaintiffs’ Second Amended Complaint. 2 3 OBJECTIONS TO RFP NO. 41: 4 Defendants incorporate here by reference their earlier “Objections Which Apply to All 5 Requests for Production.” Defendants object to this request because, broadly read, it 6 would require Defendants to search the files of every possible member of the putative 7 Muslim Ban class, as well as the files of the named Plaintiffs, and such an effort is not 8 proportional to the needs of the case, is not important to resolve issues, and the burden of 9 the request outweighs its likely benefit. Specifically, Defendants object to this request to 10 the extent it seeks documents concerning the putative Muslim Ban Class, as any 11 responsive documents would not be relevant to any live issue in this case. Defendants 12 further object to providing documents concerning Plaintiffs Wagafe, Ostadhassan, and 13 Bengezi as none currently has a pending Immigration Benefit Application, and any 14 claims concerning the alleged suspension of adjudication of immigration benefit 15 applications raised in their individual capacities (as opposed to their continuing roles as 16 class representatives) are now moot. 17 RESPONSE TO RFP NO. 41: 18 Notwithstanding these objections, Defendants will produce non-privileged Documents 19 referring or relating to the suspension, pursuant to the First EO or Second EO, of 20 immigration applications, involving Plaintiffs Wagafe, Ostadhassan, and Bengezi that is 21 located within their A Files. Further, Defendants will produce any non-privileged policy 22 or guidance Documents of national applicability that refer or relate to the suspension of 23 adjudication of adjustment-of-status or naturalization applications that would have been 24 applicable to, or effected, Plaintiffs Wagafe, Ostadhassan, or Bengezi. 25 26 27 REQUEST FOR PRODUCTION NO. 42: All Documents referring or relating to the effects, intended or unintended, of the First and Second EO on the adjudication of immigration benefits petitions, applications, or 28 DEFENDANTS’ OBJECTIONS AND RESPONSES TO PLAINTIFFS’ SECOND REQUEST FOR PRODUCTION OF DOCUMENTS - 17 (2:17-cv-00094-RAJ) UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 616-9131 Case 2:17-cv-00094-RAJ Document 112 Filed 02/08/18 Page 24 of 218 1 requests of members of any religious faith, including but not limited to, Muslims and Christians. 2 3 OBJECTIONS TO RFP NO: 42: 4 Defendants incorporate here by reference their earlier “Objections Which Apply to 5 All Requests for Production.” Defendants object to this request as unclear, i.e., 6 Defendants do not clearly understand what it means for a Document to refer or 7 relate to the “effects, intended or unintended,” of the First and Second EOs on the 8 immigration benefit applications of applicants of any religious faith. Relatedly, 9 Defendants would not be able to identify which certified class members are 10 “members of any religious faith” as USCIS does not collect that information on 11 the adjustment-of-status or naturalization applications. Further, Defendants object 12 to this request because it is not proportional to the needs of the case, is not 13 important to resolve issues, and the burden of the request outweighs its likely 14 benefit, especially insofar as it requests Defendants to search and review the 15 individual alien files of every benefit applicant of any religious faith. Defendants 16 also object to this request as far as it affects applications other than adjustment-of- 17 status or naturalization applications. Defendants object to this request as far is it 18 asks for documents relating to petitions and requests, which are not at issue in this 19 litigation and concern matters that are not live issues in this case. Defendants also 20 object to this request as far as it purports to include provisions of the First EO or 21 Second EO that are rescinded, expired, or not at issue in this litigation. 22 RESPONSE TO RFP NO. 42: 23 Notwithstanding these objections, Defendants will produce non-privileged Documents 24 only if they are of national scope, relate to adjustment-of-status and naturalization 25 applications of certified class members, relate to Sections 4 and 5 of the Second EO, and 26 fall within the terms of the request, to the extent such Documents exist and can be located 27 after a reasonable search. 28 DEFENDANTS’ OBJECTIONS AND RESPONSES TO PLAINTIFFS’ SECOND REQUEST FOR PRODUCTION OF DOCUMENTS - 18 (2:17-cv-00094-RAJ) UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 616-9131 Case 2:17-cv-00094-RAJ Document 112 Filed 02/08/18 Page 25 of 218 1 2 3 REQUEST FOR PRODUCTION NO. 43: All Documents referring or relating to the effects, intended or unintended, of the Second EO on the adjudication of immigration benefits petitions, applications, or requests of individuals on the basis of national origin. 4 5 OBJECTIONS TO RFP NO: 43: 6 Defendants incorporate here by reference their earlier “Objections Which Apply to 7 All Requests for Production.” Defendants object to this request because it is not 8 proportional to the needs of the case, is not important to resolve issues, and the 9 burden of the request outweighs its likely benefit. Defendants also object to this 10 request as far as it affects applications other than adjustment-of-status or 11 naturalization applications. Defendants object to this request as far is it asks for 12 documents relating to immigration benefit applications, petitions, and requests that 13 are not at issue in this litigation and as far as it concerns matters that are not live 14 issues in this litigation. Defendants also object to this request as far as it purports 15 to include provisions of the First EO or Second EO that are rescinded, expired, or 16 not at issue in this litigation. 17 RESPONSE TO RFP NO. 43: 18 Notwithstanding these objections, Defendants will produce non-privileged Documents 19 only if they are of national scope, relate to adjustment-of-status and naturalization 20 applications of certified class members, relate to Sections 4 and 5 of the Second EO, and 21 fall within the terms of the request, to the extent such Documents exist and can be located 22 after a reasonable search. 23 24 25 26 27 REQUEST FOR PRODUCTION NO. 44: All Documents referring or relating to any screening, vetting, or adjudication program, policy, or procedure connected to Section 4 of the First EO or Sections 4 or 5 of the Second EO, including, but not limited to, all documents referring or relating to the Extreme Vetting Initiative by the U.S. Immigration and Customs Enforcement agency. This Request is limited to those programs that apply 28 DEFENDANTS’ OBJECTIONS AND RESPONSES TO PLAINTIFFS’ SECOND REQUEST FOR PRODUCTION OF DOCUMENTS - 19 (2:17-cv-00094-RAJ) UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 616-9131 Case 2:17-cv-00094-RAJ Document 112 Filed 02/08/18 Page 26 of 218 1 2 3 or would apply to, or would affect in any way the immigration benefit petitions, applications, or requests of those individuals who are part of the Naturalization Class, the Adjustment of Status Class, or the Muslim Ban Class. 4 OBJECTIONS TO RFP NO. 44: 5 Defendants incorporate here by reference their earlier “Objections Which Apply to All 6 Requests for Production.” Defendants object to this request because it is not proportional 7 to the needs of the case, is not important to resolve issues, and the burden of the request 8 outweighs its likely benefit. Defendants object that RFP No. 44 overlaps and is largely 9 duplicative of RFP No. 40 and is therefore vague and confusing. Defendants object to 10 this request to the extent it seeks documents concerning the putative “Muslim Ban Class,” 11 as any responsive documents would not be relevant to any live issue in this case. 12 Defendants object to this request to the extent it requests documents other than those that 13 refer or relate to the screening, vetting, or adjudication programs, policies, or procedures 14 connected to Section 4 of the First EO or Sections 4 and 5 of the Second EO that affect 15 adjudication of adjustment-of-status or naturalization applications on the basis that they 16 are considered to have an articulable link to a national security ground for inadmissibility 17 or removal. Defendants consider documents reflecting the screening, vetting, or 18 adjudication programs, policies, or procedures that would affect class members only as 19 members of some broader group, such as all benefit applicants, all adjustment-of-status 20 applicants, or all naturalization applicants, and not by virtue of their status as having an 21 articulable link to national security concerns, to be beyond the proper of scope of 22 discovery in this case based on the claims the Court has permitted to proceed past the 23 pleading stage of this case. Defendants also object to searching for documents held by 24 U.S. Immigration and Customs Enforcement (“ICE”) as ICE is not a party to this case 25 and Plaintiffs have failed to comply with ICE’s Touhy regulations. Moreover, ICE has no 26 role in adjudicating adjustment of status or naturalization applications. 27 28 DEFENDANTS’ OBJECTIONS AND RESPONSES TO PLAINTIFFS’ SECOND REQUEST FOR PRODUCTION OF DOCUMENTS - 20 (2:17-cv-00094-RAJ) UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 616-9131 Case 2:17-cv-00094-RAJ Document 112 Filed 02/08/18 Page 27 of 218 1 Beyond this, Defendants object to this request as it purports to request documents 2 referring or relating to adjudication of adjustment-of-status and naturalization 3 applications for all such applications regardless of any connection to the claims of the 4 certified classes. This exceeds the scope of the claims the Court permitted to proceed 5 past the pleading stage of this case. 6 RESPONSE TO RFP NO. 44: 7 Notwithstanding these objections, Defendants will produce non-privileged Documents 8 only if they are of national scope and refer or relate to the screening, vetting, or 9 adjudication programs, policies, or procedures connected to Section 4 of the First EO or 10 Sections 4 or 5 of the Second EO that affect the screening, vetting, or adjudication of 11 adjustment-of-status and naturalization applications based on the existence of an 12 articulable link to a national security ground for inadmissibility or removability to the 13 extent such Documents exist and can be located after a reasonable search. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANTS’ OBJECTIONS AND RESPONSES TO PLAINTIFFS’ SECOND REQUEST FOR PRODUCTION OF DOCUMENTS - 21 (2:17-cv-00094-RAJ) UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 616-9131 Case 2:17-cv-00094-RAJ Document 112 Filed 02/08/18 Page 28 of 218 1 2 3 4 5 Dated: December 18, 2017 Respectfully submitted, CHAD A. READLER Acting Assistant Attorney General EDWARD S. WHITE Senior Litigation Counsel National Security & Affirmative Litigation Unit AARON R. PETTY Trial Attorneys National Security & Affirmative Litigation Unit WILLIAM C. PEACHEY Director, District Court Section 6 7 /s/ Joseph F. Carilli, Jr. JOSEPH F. CARILLI, JR. National Security & Affirmative Litigation Unit District Court Section Office of Immigration Litigation U.S. Department of Justice P.O. Box 868, Ben Franklin Station Washington, DC 20044 Telephone: (202) 616-9131 E-mail: Edward.S.White@usdoj.gov 8 9 10 11 12 13 14 15 Attorneys for Defendants 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANTS’ OBJECTIONS AND RESPONSES TO PLAINTIFFS’ SECOND REQUEST FOR PRODUCTION OF DOCUMENTS - 22 (2:17-cv-00094-RAJ) UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 616-9131 Case 2:17-cv-00094-RAJ Document 112 Filed 02/08/18 Page 29 of 218 CERTIFICATE OF SERVICE 1 2 I HEREBY CERTIFY that on December 18, 2017, pursuant to the agreement of 3 the parties at the Rule 26(f) conference, I served Defendant’s Objections and Responses 4 to Plaintiffs’ Second Request for Production of Documents by electronic mail on 5 Nicholas Gellert, Esq., Jennie Pasquarella, Esq, Sameer Ahmed, Esq, David Perez, Esq., 6 and Laura Hennessey, Esq. 7 /s/ Joseph F. Carilli, Jr. JOSEPH F. CARILLI, JR. U.S. Department of Justice 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANTS’ OBJECTIONS AND RESPONSES TO PLAINTIFFS’ SECOND REQUEST FOR PRODUCTION OF DOCUMENTS - 23 (2:17-cv-00094-RAJ) UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 616-9131 Case Document 112 Filed 02/08/18 Page 30 of 218 EXHIBIT Case 2:17-cv-00094-RAJ Document 112 Filed 02/08/18 Page 31 of 218 From: Sent: To: Cc: Subject: White, Edward S. (CIV) Friday, February 02, 2018 3:50 PM Hennessey, Laura K. (SEA) Carilli, Joseph F. (CIV); Petty, Aaron (CIV); Gellert, Nicholas (SEA); Perez, David A. (SEA); Mujenda, Laura (NYC); Jennie Pasquarella (JPasquarella@ACLUSOCAL.ORG); Sameer Ahmed (SAhmed@ACLUSOCAL.ORG); Hunt, Laura A. (CIV) RE: Wagafe v. Trump - Muslim Ban Class Discovery Laura,    Thanks for your email.  After considering the matter, Defendants do not recede from their objections related to the  uncertified “Muslim Ban Class” as stated in Defendants’ Objections and Responses to Plaintiffs’ Second Request for  Production to Defendants, dated December 18, 2017.  However, to the extent that materials relevant to the putative  “Muslim Ban Class” are also relevant to the claims of the Adjustment Class or Naturalization Class, they will be collected,  reviewed, and produced in accordance with our response to the RFPs.     Regards, Ed     From: Hennessey, Laura K. (Perkins Coie) [mailto:LHennessey@perkinscoie.com]   Sent: Thursday, February 01, 2018 5:44 PM  To: White, Edward S. (CIV)   Cc: Carilli, Joseph F. (CIV) ; Petty, Aaron (CIV) ; Gellert, Nicholas  (Perkins Coie) ; Perez, David A. (Perkins Coie) ; Mujenda, Laura  (Perkins Coie) ; Jennie Pasquarella (JPasquarella@ACLUSOCAL.ORG)  ; Sameer Ahmed (SAhmed@ACLUSOCAL.ORG)   Subject: Wagafe v. Trump ‐ Muslim Ban Class Discovery    Laura Kaplan Hennessey Perkins Coie LLP   1 Case Document 112 Filed 02/08/18 Page 32 of 218 NOTICE: This communication may contain privileged or other con?dential information. If you have received it in error, please advise the sender by reply email and immediately delete the message and any attachments without copying or disclosing the contents. Thank you. Case Document 112 Filed 02/08/18 Page 33 of 218 EXHIBIT Case 2:17-cv-00094-RAJ Document 112 Filed 02/08/18 Page 34 of 218 Attachment 1 Extreme Vetting Initiative STATEMENT OF OBJECTIVES (SOO) I. Purpose The purpose of this effort is to obtain contractor services to establish an overarching vetting contract that automates, centralizes and streamlines the current manual vetting process while simultaneously making determinations via automation if the data retrieved is actionable. II. Scope or Mission The scope of this requirement aims to implement the President’s various Executive Orders (EOs) that address American immigration and border protection security and interests. These include EOs such as “Protecting the Nation from Foreign Terrorist Entry into the United States” which aim to strengthen our immigration system with the goal of preventing terrorists or any other party looking to defraud the immigration system from entering the United States. The President’s goal is to increase public safety thru the suspension of entry to foreign visitors from certain nations while ordering uniform screening standards and stricter criteria and guidelines for admission for all immigration benefits. ICE must develop processes that determine and evaluate an applicant’s probability of becoming a positively contributing member of society as well as their ability to contribute to national interests in order to meet the EOs outlined by the President. ICE must also develop a mechanism/methodology that allows them to assess whether an applicant intends to commit criminal or terrorist acts after entering the United States. Given that ICE performs the majority of alien vetting activities within DHS they must evaluate and transform their current vetting programs in an expedited fashion to meet the mandates outlined by the President’s EOs. III. Period and Place of Performance 1525 Wilson Blvd, Arlington, VA 22209, some additional travel may be necessary at times. IV. Background The current processes utilized for screening, vetting and for lead generation are fragmented across mission areas and are both time-consuming and manually laborintensive due to complexities in the current U.S immigration system. This has caused several issues to arise in the current immigration system that pose a potential threat to national security. There are large volumes of cases received and the manual nature of the processes used to review these cases continues to cause case backlogs while they are awaiting review. This leads backlogged cases to become untimely and late in delivery to field agents which inhibits actionable information or outcomes. Furthermore, the current screening and vetting processes focused on identifying overstays are not geared to 1 Case 2:17-cv-00094-RAJ Document 112 Filed 02/08/18 Page 35 of 218 Attachment 1 conduct in-depth analysis or to permit the development of richer case files that would provide high-value derogatory information to further investigations or support any prosecution by ICE or US attorneys in immigration or federal courts. This can lead to backlogged individuals missing a screening which could allow them to commit a malicious act before they are identified or apprehended. Additionally, the current system allows ICE to vet and screen nonimmigrants on both the front and back end of the immigration lifecycle. However, ICE does not perform any regular, periodic or continuous review or vetting of nonimmigrants against screening criteria once they have entered the US. While certain programs perform reviews once certain criteria are met there is no existing process that systematically reviews nonimmigrants once their risk profile has changed. Persons who are on immigrant visas or who have filed for or received immigration benefits (i.e. Green Card, asylum or refugee status) do not receive continuous vetting outside of the benefits adjudication process performed by US Citizenship and Immigration Services (USCIS). The lack of a continuous vetting process creates significant risk in ICE’s ability to identify emerging risks, such as radicalization, that may occur after an individual arrives in the United States. Moreover, there are many immigrant and nonimmigrant classes with long periods of validity tied to their benefit or visa class which results in significant time periods passing between vetting reviews. This increases potential risk while further inhibiting ICE’s ability to identify emerging risks in an actionable timeframe. The gaps in the current vetting model along with existing limitations in the vetting process create a compelling case for ICE to take action to develop and implement a continuous vetting strategy, framework and process. V. Performance Objectives ICE must develop and implement a continuous vetting strategy, framework and processes that: 1. Centralize screening and vetting processes to mitigate case backlog and provide law enforcement and field agents with timely, actionable information; 2. Allow ICE to develop richer case files that provide more value-added information to further investigations or support prosecution in immigration or federal courts; 3. Allow ICE to perform regular, periodic and/or continuous review and vetting of nonimmigrants after they enter the United States once their risk profile has changed and; 2 Case 2:17-cv-00094-RAJ Document 112 Filed 02/08/18 Page 36 of 218 Attachment 1 4. Automate at no loss of data quality or veracity any manually-intensive vetting and screening processes that inhibit ICE from properly and thoroughly vetting individuals in a timely fashion. 3 Case Document 112 Filed 02/08/18 Page 37 of 218 EXHIBIT DEF-00000080 Case Document 112 Filed 02/08/18 Page 38 of 218 Case Document 112 Filed 02/08/18 Page 39 of 218 IDENTIFYING A NATIONAL must analyze the indicator and determine whether an articulable link exists between the individual and an activity, individual, or SECURITY (NS) CONCERN one or more indicators that may raise a N8 concern. In such cases, the officer must first confirm whether the indicator(s) relates to WI DGMUPS 0? swim? [3/25/03 the applicant, petitioner, bene?ciary, or derivative (?the individual"). When a NS indicator has been identified, the officer Identifying a N5 Concern: As a result of the security checks or at any stage during the adjudicative process, the officer may identify Based on: Memo on AF- was organization described in sections (B), or (Fthe Immigration and Naturalization Act (?the Act"). A KST NS concern must be confirmed via a check. if confirmed, the officer must contact the Terrorist Screening Center in order to determine whether the KST NS concern relates to the individual. (CARRP Policy Memorandum, p. 4). INTERNAL sought. The officer must also conduct internal vetting to obtain any relevant information to support adjudication and, in some ELIGIBILITY ASSESSMENT cases, to further examine the nature ofthe NS concern. (CAR RP Policy Memorandum, p. 4). Assessing Eligibility in Cases with a N8 Concern: If it is determined that a N8 concern exists, the officer must conduct a thorough review of the record associated with the application or petition to determine if the individual is eligible for the bene?t 3 External Vetting 1 Cases: If an application or petition appears to be othenNise approvable, and internal vetting is complete; there is an identified record owner in possession of NS information; and the NS concern remains, then the officer must initiate the external vetting process cases only) before the case may proceed to final adjudication. (CARRP Policy Memorandum, p. 5). EXTERNAL VETTING KST Cases: Field officers are not authorized to conduct external vetting with record owners in possession of NS information. If the application/petition is otherwise approvable for KST cases, must conduct external vetting of KST concerns. (CARRP Policy Memorandum, p. 6). LQ T113 8 do: um h. .u at ltand'ieg' 1 :5 me Freedom of l? CARRP Adjudication: Upon completion of required vetting, if the NS concern remains, the of?cer must evaluate the result of the vetting and determine any relevance to adjudication, obtain any additional relevant information, and determine eligibility for the benefit sought. Adjudication of a case with a N8 concern focuses on thoroughly CARRP ADJUDICATION identifying and documenting the facts behind an eligibility determination, and, when appropriate, removal, rescission, termination, or revocation under the Act. (CARRP Policy Memorandum, p. 6). AL USE ONLY 17000} - d, and (lisp-nasal 0? in accor. SENSITIVE :xe. exempt from": rehase 1 .- it}: i. i tut". 3.: mi 3110.? wt on 113m Hum: )i?zyu?? the o: i . ..-1ti or ma: :w . {122; {10.11 of the or gmazor. Case Document 112 Filed 02/08/18 Page 40 of 218 Based on: Home on 4/11/1128 53 rut Op Gu?daance #213318 Cheek lifvih?i 'vsl?brst? tic-53 1152*: 3% asides}. to :Eris . The Background Check and Adjudicative Assessment (BCAA) is used to document NS concerns and track actions taken on applications or petitions where such concerns exist. [Specific guidance on the use ofthis worksheet is available in each component?s operational guidance] The BCAA is also used as a record to assist data entry into the Fraud Detection and National Security Data System (FDNS-DS). Component guidance will outline when a case must be entered into FDNS-DS. USCIS will complete the BCAA and coordinate with FDNS for entry into FDNS-DS for the following cases: 0 all KST cases, regardless ofthe decision on the underlying application/ petition; 0 cases where a N8 concern has been confirmed and the application/petition is recommended for approval (except for cases receiving a terrorist activity exemption and for which no other national security concerns exist); and to the extent required by operational guidance, cases where a national security concern has been confirmed and the application/petition is denied. Source: BCAA Guidance and Instructions ~29 EOE OEEICIAL USE ONLY - . ?v 7 EMENT SENSITIVE SEQ oi he exemnt fr Ofi'tht? - be corm'r cred, handled. 3 release 2 that 111:1 Kw?: ~41 hatch tut. :m {an my, 06 11131?) Case Document 112 Filed 02/08/18 Page 41 of 218 Based on: 133298? Miami:- on 4/"11j08? and EDMOPS Guidance 4,1?251?98 National Security Bran-2h Customer Service we: its; 5. 1. . . . \u?h'wimx \1.1.1.1.1.1 1.1.1.1.1.1. .51 Field HQ .5. (55: .- gr; max. 1.1.1.1. 1min. '5 .. 2m Ruth?s? 1 1.1.1. 1.1.: 1.1. ?hu. 1.1.1? we: Identified NS Concern If KST. Internal Con?rm Vetting/ Match with Eligibility TSC Assessment NS Concern Remains Eligible for Benefits Sought Senior Official Review and Forwards File to Yese for Sent to FIELD for Senior Official . . . . IV Final Adjudications Concurrence erna 8 mg If It Still Cannot Be Denied . . . No External NS Concern? Yesa Senior OffiCial CARRP Agency If Necessary ?1.1 NS Concern Remains Eligible for Benefit . Routine Eligible for Adjudication Benefit? Vetting Concurrence Adjudication Management Review Not Eligible for Benefits . NS Concern Remains Note: At any time, customer service can occur between the Field and Eligible for Benefits Sought Note: At any time, the KST lookout is removed. the case will be designated NNS and released to routine adjudication. Routine Note: At any time, a case can revert to a previous stage based on new information or feedback received. Adjudication BCAU- Background Check Analysis Unit KST- Known or Suspected Terrorist NNS- Non-National Security NS- National Security NSAU- National Security Advisory Unit TSC- Terrorist Screening Center Routine Adjudication EAL USE ONLY - ?v 7 SENSITIVE and (lisp-raged 0? in 2.511093 :xe exemut Era-11": re'rasr: 3 1.. to be Sacred, handled. . 1 i 1 .at?icr mat 11:1)? U) LE9 L'rl? This 'Jf??1211 01?} Shall ?10: DC )ffyt?i? 111?. (Minna. d?t t. nation of the 011? ginazor. .: {.19 t?let?d?c?lu of 1:110:11): 1:111?) ALL :1 :1 i JL Case Document 112 Filed 02/08/18 Page 42 of 218 861%de 1332528? Miami:- on 4,1,12?08? and 133M098 Guidance IDENTIFYING NS CONCERN INTERNAL ELIGIBILITY ASSESSMENT f??r?f?rff {$555! 5.5.5555 555" . - 5* my 555-1.." 555% 51-55555 555 555 EXTERNAL VETTING CARRP ADJUDICATION EUR (FEELCEAL ONLY - ?v 7 SENSITIVE r0 Fima: from": reie ass 4- 4 1.1M: .1: him; .. . ms? De "xx Case Document 112 Filed 02/08/18 Page 43 of 218 Based on: Memo on 4/11/68 DNS and OD Guidance ai/25/?OS National Security Branch .I if": .. .-. 5 HM: KST Concern Remains, . ?ii-5i 'dent'f'ed Eligible for Benefits Sought Confirm NS Concern Internal Vetting/ or Need to Strengthen Denial Match with Eligibility Assessment TSC Considering all denial grounds Field HQ Supervisor Review If Necessary Collaborative Decision Between Field No Yes SuperVIsor Senior OffiCIal Routine Eligible for Review and Forwards File to Adjudication Benefit?// Yes? Senior Official i Concurrence External Vetting 25:. . If It Still N0 Cannot Be Denied No Return to Return to Field Field CARRP Ma?ge 222 nt Adjudication 9 Review Note: At any time, customer service can occur between the Field and NS Concern Note: At any time. the KST lookout is removed. the case will be designated NNS and released to Remains routine adjudication. BCAU- Background Check Analysis Unit Known or Suspected Terrorist NNS- Non-National Security NS- National Security NSAU- National Security Advisory Unit TSC- Terrorist Screeninn Center Not Eligible for Benefits Routine Adjudication and (lisp-nasal 0? in diatom EAL USE ONLY - ?v 7 SENSITIVE 1.. .0 ac stwed, bandied. 1 :5 {.19 Freedoi?n of 11*: U) L'yi?? wt L'rl? .at?ivz?zr that 11:1)? be. exem'at rebasr: 5 This Liv-:1 'Jf?r. . 2' - i ?1211 01?} Shall ?10: DC 1119. d?t t. :1 i nation of the 011? ginazor. Case Document 112 Filed 02/08/18 Page 44 of 218 Based on: Memo on Mil/08 and senses Guidance Determine If Individual oer: indiv Confirm Match Relates to KST with TSC Hit internal Vettingi Assessme rs? Stage Assessm n'r Deny? $upervisor Review Deconflict Supervisor Supervisor Review Review I6 Supervisor I Review 9 File Review DHS Cheri-<54 Open Source Checks :1 Other Systems Checks RFE NOID Inteiview Site Routine Adjudication I Coordinate Notice ?f A to Appear (N m, with ICE Note: At anytime, a NS Concern can be designated NNS and released to routine adjudication. Also at any time, a supervisor review can return a N8 Concern or NS Case to an earlier stage in the CARRP process. An IBIS Resolution Memo is produced at this point. 2. All references to denying a case also encompass the possibility of referring an asylum case to an Immigration Judge. (CARRP Memo, p. 5) 3. Coordinate NTA with ICE if individual is amenable to removal and present in the US. 4. Refer to DOMOPS Ops Guidance for a full review of all security checks which can be conducted. Field- The Field refers to Field Offices, Service Centers and the National Benefits Center. E011 ONLY - SITIVE QC. 0? if! - we a: It?? t?XE?I?th . be usrriliraatryri xv" . ?s . of Imam; an, 3 mt (.1 the orgasm: of the \Jtigl?dadl. Case Document 112 Filed 02/08/18 Page 45 of 218 Based era: Memo or: 4/11," '8 and Guidance 4/25/08 zW $553355? mm?me? Ensure BCAA and are completely Some of these processes may occur concurrently. updated before sen ding to assistance. 1 irrigmt onwards Case 0 3- for .xtemai Vetting Ye. 1.5.. cr internal Vetting. :1 Supervis-er Review RFE, OED, Notice Beetsion. Visitftn?ervi Site eat; Ceadinme Neitce to Appear with ECE 1. Forward ?le after confirming subject remains on the Terrorist Watch List, documenting all adjudicative actions in FDNS-Ds, and attaching completed BCAA to FDNS-DS record. As digitization occurs, ?les may not be physically moved up to but will be digitally transferred. Refer to DOMOPS Ops Guidance for information concerning when vetting assistance may be requested from SETIVE E011 OERCEAL USE ONLY (170 - if! - FORCWMENT 31 T59. . (xx-latter: of the on ginazer. It?? t?XE?I?th . we cor; Ito-ll. 9 Freedom of in . . 1 . 10'. DC 113$?leth (.1 1119. Case Document 112 Filed 02/08/18 Page 46 of 218 Based on: Memo on 4/11/08 and 053 Guidance 33/25/08 1'1'1'1'1'1'F1'1'1'1rf1'1'1' 1'3? 15' 1'1'1' 1'1'1'1'1'1'1"r1'1"r1'1'1'1'1' 1'1'1'1'1'1"r1'1'1'1'1'1' 1' 1'1'1'1'1'1"r1'1'1'1'1'1' 1'1'1'1'1'1' 1'1'1"r1'1'1'1'1'1'1"r 3333/3 33,333 3333/33?: 3333/3 '33333// 3.33333?: 3333533333333 3333?} 3333/3 333333 33333333/3} 3,33333; 333333/33i 3333,3333, 3333/3 333333333? 3,3333; 33333337 333333, 33333333, 3, 3333333373,? 3333333?: 333333 33.333333733333733, 3/333333?: 333,33ii 333337 33333 33,33333333, 3, 3,33333/33, 333333, 34.3333353333373 xixi.. jg/xii- Air-"f. xi. 3"fo xi. xixi. xiixi. 32.x? .xi. xixi.. .- 1' ifixixi/ . . .xi. xii. x"xi 1'1'1'1' f5.- ifd?/ /i/xi. .- Teariine to NSAU. it Can?t be -red KST Concern Remains, or if Tearline is incommet neenclueive ie for Benefit or Externai ?\/etting Sta 9 Needto qtren then .Nationei Securi branch Denis i Gmsinas r- on .2~i DNS Coi iu- narrative . i308. Cu! iaob rative Decaeicn Between - Pi?ar?agerrierti?teview May Send Request for NSAU Dec lass ificatien or Use of Ciassified BCAU 3., KC, . - BEAU Actions Statementaf $63333; . Field HQ Findings lf Respons a Does Nt- Provade Jeniai Grc-L Lni Return t0 Return to Haiti! Return to Fieldi Adjudication Adjudication Agency Concern Management Review b? he. . .5 Routine Nor PRP Adjudication Process 1. will notify the Field of the results and what denial grounds have been identified via FDNS-DS, email, or 2. Only returned to the Field if the 81 OH hit has been removed. Note: Per DOMOPS Ops Guidance the designated CARRP officer must notify whenever new factors arise that may affect the application/petition if case is at FOR OERCIAL USE QNLY (170 - 1.. (?ii 0? if! - .FQRCEMENT 1 L'iat {5:1 It? 9. empt . we ()1in 112.11. De ustri fill-try?! (.1 the 'za.tio.i- Cid-.8 ouginawr. Freedm?n . 08m 00232: EN omBmEm 33m 5 o.n on? abmmw Khan o: mam mogovw 0w mammunm mxwmuom .1 ?9.65E933 0 :3 A . "4.8943 303 Km.? . Imp?wzm Pw?ivmn?k mama?: .8 whim mu >mwamommon 387$ ?gum. mam Emma 9. wimgm?. mm/Nwm? menm E. .5?,ng ?.243 ?any ?Om Qmmw?mm?l ?mm 3in CQV .. Pbean. 5.5.. To. Edimun .5 Tire44:3,. C: ,u Ln . x, Tenn .. mm. em. Case Document 112 Filed 02/08/18 Page 48 of 218 IDENTIFYING NS CONCERN ?0 be ~35 the Freedom of Infoz?rrm?or; ELIGIBILITY ASSESSMENT EXTERNAL VETTING Based cn: 133298? Miami:- on 4/?11j08? and Op Guidance 4,1?251?98 EGR OEEICEAL USE ONLY {:90 - 7 ENFORCEME SENSITIVE ?xed: Imndie? ~11 .uzed, an . . This shall no? .2 1 1 desaees with? pg?? \5 1' 3.1113? [0 Elf-?nk) it [gm-3111c ?ifn be exemgt from": release 1 11:. OI 01'! gmamr. Case Document 112 Filed 02/08/18 Page 49 of 218 1 Based on: Miami:- on 4/?111?08? and EDMOPS Guidance 4,1?251?98 Identified NS Concern Confirm NS Internal Concern A, Vetting/ NS Concern Remains According to Eligibility Eligible for Benefits Sought Op Guidance Assessment 4515?! I . 5 ww?g??c?f?if Field HQ Senior Official Requests External Vetting Assistance if Necessary Routine /Eligible for Yes External @s Yes CARRP Adjudication Benefit? Vetting Remain? Adjudication 1' n' t'i'n'n'n'n' 152-2.- Sent to FIELD for Final Adjudications No Supervisor Routine Eligible for Review Adjudication Benefit? Supervisory Senior Of?cial CARRP Review Concur Adjudication If It Still i Cannot Be Denied Not Eligible NS concern Rema'?s 8? Not Eligible for Benefits Eligible for Benefits for Benefits . Routine Adjudication Agency Management Review Note: At any time, customer service can occur between the Field and BCAU- Background Check Analysis Unit KST- Known or Suspected Terrorist NNS- Non-National Security NS- National Security NSAU- National Security Advisory Unit and (lisp-raged 0? in 2.511093 EAL USE ONLY - ?v 7 SENSITIVE 1.. .0 ac stcxed, handled. 1 :5 {.19 Freedom of 11*: U) L'yi?? wt L'rl? out)? that 11:1)? be. exem'at rebase 1 1 This 5.0: Lit-:1 'Jf?r. . 2' - ?1211 01?} Shall ?10: DC 1119. d.G( t. :1 i nation of the 011? gtnazor. Case Document 112 Filed 02/08/18 Page 50 of 218 Based era: Memo on 23/11/58 and 053 Guidance IUQEJOS NS Case Cret ted a r. ., EnternaEVettin 5??wa - Send :0 Create a a? ibii?- 9? . Confirm Identity .. ual Relate . Ntacii?me??r?k CAQRP 5853 Record if to Mon.- . . . . . Adiudicator? Necessary Supervisor Supervisor Review Review Routine Routine Adjudication Adjudication Other Coordinate Notice to Appear TA.) with 165 A may arise as a result of a security check or at any stage of the adjudicative process. (DOMOPS Ops Guidance, p. 9) 2, ldentifiers? Refer to p, 10 of DOMOPS Ops Guidance, 3, An Resolution Memo is produced at this point, 4, Update FDNS-DS wil 'nformation, Note: At any time, a KST lookout may be entered on an individual. lfthis occurs, the NS Case should follow the KST CARRP process. At any time, a N8 Concern can be designated NNS and released to routine adjudication, Also at any time, a supervisor review can return a NS Concern or NS Case to an earlier stage in the CARRP process, Attachment A: ?Guidance for Identifying National Security Concerns" from DOMOPS Ops Guidance Field: The Field refers to Field Offices, Service Centers, and the National Benefits Center 4) E011 ONLY - SITIVE QC15:1 we cor; wall. It?? t?XE?I?th . rebas: 12 be us?ibiafm xv" i ?s . of imam; an, 3 mi (.1 the oriental: of the \Jilgl?dath. Case Document 112 Filed 02/08/18 Page 51 of 218 Based. on: Meme- on 45/11/08 and 5084098 Guidance 4325/08 Concern lderiti?fieci 80" of these processes may occur or ?urrentiy. internal Vettingi igib.lity As: easement Adjudioative tale far Review . Benefit? internal Ve ,ting I. :3 External Vetti Complete Review of File: Systems Checks 8.- Decon ?rm i May involve- Sugaerviscr Rtv?iaw RFE, Notice of Lecision; or Site Visit/interview Coordinate Notice to Appear with 1, All references to denying a case also encompass the possibility of referring an asylum case to an Immigration Judge (CARRP Memo, pt 5 2. Coordinate NTA with ICE if individual is amenable to removal and present in the US. A d, and disposed 0? in :?1'11101?. EUR OEEICIAL USE ONLY - SENSITIVE .- it}: i. r. i 1. 101". ml 5116.? 1139?} Hum )fzyurl? Lt?. U: 1.. .0 ac sti?ed: 1 a {.19 Freedom of 1:110:11); i U) . Hater/T ma: 13:1}? exemm from": re'rasr: 1 3 of the 011? ginazor. Th? :1 do: Lit-:1 Case Document 112 Filed 02/08/18 Page 52 of 218 Based an: Meme on 4/11/88 ans} 053 Gui-fiance 4/35/88 5* Cancern Remains Eiigi" . ?Benef?t Emerita! Vetting Exiemai etting Determine Nature- and Exteni of INS-S Stage Cancern 8: identify infarmaiion Reievan?r to Adju?ica?cn Evaiua?m . Externai Vetting Rev (EAR Adjudieatie {Santa-st and Coerdinate with LEA/Remrd Owner is Obtain Reievant info Law Enforcement Agency d, and disposed 0? in :?1'11101?. EUR OEEICIAL USE ONLY - SENSITIVE .- it}: i. r. 1.1- i 1. 11.21". mi aha? 1139?} Hum: )fzyurmt Lt?. U: 1.. .0 ac aimed: handiml. 1 a {.19 Freedom of 1:110:11); 1 U) . ?mar ma: my :xe. exemm from": r3143: 14- .?iza?ou of {he Th? :1 do: 4111:212- 3: to 601.10. Case Document 112 Filed 02/08/18 Page 53 of 218 Based. on: Meme- 053 45/11/08 and 5084098 (Bumance 4325/08 (523?" rr rr rr .- NS Determinaiion SAR RP Adjudicaticn Stage (3 AR r: . {Jerv?srj t?f Requests Aii?::dieatier1 - Sense-s" Officia! .. Grant Benef 7 Externa! Vetting Concurrence Assistance lava Ives. Deccn?ict Deconfiic? ..valuate Resuits of Vetting May invoive Supervisor Review RFE. Sm Visit 0r interview Comdina?e Notice 20 Ape-ear (NTA) with ini d, and disposed 0? in :?1'11101?. EOE GEEKCIAL USE ONLY 170 - .0 ac aimed: handim' 1 U) Th? :1 do: 411': 1.. SENSITIVE .-?Lth i. r. i inn". on aha-u. :th 113m mam the Ma?a? that nay be. exemm from": rebase 1 5 .?iza?ou of {he e5 {.19 Freedom of 1:110:11); 1 U1 Case Document 112 Filed 02/08/18 Page 54 of 218 Based on: Meme- o: 3 4/ 11,138 and Guidance 4,2 251? 08 $5.511! 45:11! (r?l??af 1'1'1' 1'1'1'1'1' 1'1'1'1' .5555 11555 55555555555555 5.55:5 5555555 55555.5 1.1555/ (ah-?Hf @F?gaa? f?'n'f z??f (ah-Ha.- Eff 555', .-.- 155555? 1'11' .- -.-.-.- .- .1555555".1" 5555555".1" .155.- /5.55 ,55-555555/ ,55555/ ,,55555,5 5.555555555555555? 555. 55.5% 555/ 5555555 5555555? 1'1'1'1'1' 5555555 .15555555 .1555555" 55555555435 ?y??f?ff 1'1'1' 4.25 551;.- 1'1'1' 5.1"55" 555555921" 555555545": ehal?or ative Decision Between Fi- FoNs 3 2 May Send uequest for . Sat ae:1'1ent . - Mesa sment 0 Recommendation 0 assi.icatior1 r: . . . t0 5-5% nuilg?il?lv FindinrResults MAL: Actic. \{01 D5: matOf?ered?? a Field HQ if Response Does Not . I Provide Denial Grounds Retumto Fieid/ #55 Retum :0 F515- .511. Routine ?Newman 0. Agency Adjudication Results Adjudication Management Review Remote F: .515! CARRP Adjudication Rex/:ew a Vetting Assaistance 9 Eylerr? al Vetting. of Cias. lt-b?? Use 1. will notify the Field of results via email, or BCAU- Background Check Analysis Unit NSAU- National Security Advisory Unit Field HQ- HQ Office of Field Operations (OFO) or HQ Service Operations (SCOPS) 29 DOMOPS Ops Guidance) EOR OEEBCEAL USE ONLY - L1?v 7 ENFORCEMENT SENSITIVE am 1ij accotrrj-u'yie with .o as . This 3.11:: 1111112111 3: 3.5311'13: 1:93. Ht?. 1? b.1511 . :19 heme 11 . 111101;: . tor: 121111111 shad 111- De the 1.11 2.2111011 (Ingmawr. Case Document 112 Filed 02/08/18 Page 55 of 218 EXHIBIT Case 01718 HF: Bap-arsznern? (if Hometam? Eternity US. Citizenship and Immigration Services O?z'ce 0f the Director Washington, DC 20529 E323. Citizenship and Immigration. Services. Memorandum Original DatedApril 11, 2008 TO: FIELD LEADERSHIP FROM: Jonathan R. Scharfen, Deputy Director SUBJECT: Policy for Vetting and Adjudicating Cases with National Security Concerns 1. Purpose This memorandum outlines USCIS policy for identifying and processing cases with national security (NS) concerns,1 and rescinds existing policy memoranda pertaining to reporting and resolving NS concerns. It also identi?es Headquarters? Of?ce of Fraud Detection and National Security as the point of contact for technical advice to assist the ?eld2 with vetting and adjudicating cases with NS concerns. This policy, known as the Controlled Application Review and Resolution Program (CARRP), establishes the following: The ?eld is responsible for vetting and documenting Non-Known or Suspected Terrorist NS concerns, and adjudicating all NS-related applications and petitions.4 1A NS concern exists when an individual or organization has been determined to have an articulable link to prior, current, or planned involvement in, or association with, an activity, individual, or organization described in sections 212(a)( A) (B) or (F). or 237(a)(4) (A) or (B) of the Immigration and Nationality Act (the Act). This determination requires that the case be handled in accordance with CARRP policy outlined in this memorandum. 2 Field refers to Field Of?ces, Service Centers, the National Bene?ts Center. and equivalent of?ces within the Refugee, Asylum, and International Operations Directorate (RAIO). 3 Known or Suspected Terrorist (KST) is a category of individuals who have been nominated and accepted for placement in the Terrorist Screening Database (TSDB), are on the Terrorist Watch List, and have a specially-coded lookout posted in and/or the Consular Lookout Automated Support System (CLASS), as used by the Department of State. is the category of remaining cases with NS concerns, regardless of source, including but not limited to: associates of KSTs, unindicted co-conspirators, terrorist organization members, persons involved with providing material support to terrorists or terrorist organizations, and agents of foreign governments. Individuals and organizations that fall into this category may also pose a serious threat to national security. 4This policy applies to all applications and petitions that convey immigrant or non-immigrant status. This policy does not apply to petitions that do not convey immigrant or non-immigrant status. See Operational Guidance for instructions. FOR OFFICML USE ONLY LAW ENFORCEMENT SENSITIVE This document is to be controlled, stored, handled, transmitted, distributed, and disposed of in accordance with DHS policy governing the use of FOUO information. It contains information that may be exempt from release under the Freedom of Information Act (5 U.S.C. 552). This document and the information contained herein are not to be distributed outside of DHS. Case 01718 Policy for Vetting and Adjudicating Cases with National Security Concerns Page 2 The System is the primary system for recording vetting, decon?iction, and other resolution activities. 0 maintains responsibility for external vetting6 of Known or Suspected Terrorist (KST) hits, and, upon request from the ?eld, provides advice, technical assistance (including draft decisions), and operational support on KST and cases with NS concerns. II. Effective Date and Implementation Operational Guidance implementing this policy will soon be issued by the Domestic Operations Directorate7 (DomOps) and individual components of the Refugee, Asylum, and International Operations Directorate (RAIO). This policy will be effective upon issuance of each directorate?s respective guidance. Rescission of Prior Policy and Procedures Upon issuance of the Operational Guidance, the following policy memoranda and procedures will be rescinded: 0 Processing of Applications for Ancillary Bene?ts Involving Aliens Who Pose National Security or Egregious Public Safety Concerns, dated May 11, 2007; 0 Processing of Forms [-90 Filed by Aliens Who May Pose National Security or Egregious Public Safety Concerns, dated May 11, 2007; 0 National Security Reporting Requirements, dated February 16, 2007; 0 National Security Record Requirements, dated May 9, 2006, 0 Permanent Resident Documentation for EOIR and [-90 Cases, dated April 10, 2006; 0 Appendix A of the Inter-Agency Border Inspection System (IBIS) of Procedure, dated March 1, 2006; 5 If FDNS-DS is not currently available at any specific field office, officers must document CARRP procedures by another method as identified in Operational Guidance. 6External Vetting consists of inquiries to record owners in possession of NS information to identify: facts or fact patterns necessary to determine the nature and relevance of the NS concern, including status and results of any ongoing investigation and the basis for closure of any previous investigation; and information that may be relevant in determining eligibility, and when appropriate, rernovability. See section IV.C for further instruction. 7 The Domestic Operations Directorate comprises Service Center Operations and Field Operations. FOR OFFICIAL USE ONLY LAW ENFORCEMENT SENSITIVE This document is to be controlled, stored, handled, transmitted, distributed, and disposed of in accordance with DHS policy governing the use of FOUO information. It contains information that may be exempt from release under the Freedom of Information Act (5 U.S.C. 552). This document and the information contained herein are not to be distributed outside of DHS. Case 01718 Policy for Vetting and Adjudicating Cases with National Security Concerns Page 3 0 Revised Instructions for Processing Asylum errorist/Suspected Terrorist Cases, dated January 26, 2005; and 0 Section VIH of the Asylum Identity and Security Check Procedures Manual. Of?cers should refer to relevant Operational Guidance8 when adjudicating the following, if found to involve NS or Egregious Public Safety9 concerns: 0 Petitions that do not convey immigrant or non-immigrant status; 0 Applications for employment authorization; 0 Applications for travel authorization; 0 Replacement Lawful Permanent Resident cards; 0 cases. IV. Policy Guidance This policy, in conjunction with Operational Guidance, provides direction to identify and process cases containing NS concerns in the most efficient manner. The process allows suf?cient ?exibility to manage the variety of cases encountered by USCIS. Officers should note that at any stage of the adjudicative process described below, decon?iction may be necessary before taking action on a KST or NS concern. Decon?iction is a term used to describe coordination between USCIS and another government agency owner of NS information (the record owner) to ensure that planned adjudicative activities interview, request for evidence, site visit, decision to grant or deny a benefit, or timing of the decision) do not compromise or impede an ongoing investigation or other record owner interest. A. Identifying National Security Concerns As a result of the security checks11 or at any stage during the adjudicative process, the 8 Including Policv Memorandum 110 (Disposition of Cases Involving Removable Aliens) issued July 11, 2006. That memorandum is not rescinded and does not apply to asylum applications. 9An Egregious Public Safety (EPS) case is defined in Policy Memorandum 110. 10 Santillan et v. Gonzales, et al., 388 F. Supp2d 1065 (ND. Cal. 2005). 11Security checks may consist of the FBI Name Check, FBI Fingerprint Check, Treasury Enforcement Cormnunications System/Inter?Agency Border Inspection System or United States Visitor and Immigrant Status Indicator Teclmology/Automated Biometrics Identification System (US VISIT-IDENT). Specific checks or combinations of checks are required for each application or petition type, pursuant to each component?s procedures. FOR OFFICIAL USE ONLY LAW ENFORCEMENT SENSITIVE This document is to be controlled, stored, handled, transmitted, distributed, and disposed of in accordance with DHS policy governing the use of FOUO information. It contains information that may be exempt from release under the Freedom of Information Act (5 U.S.C. 552). This document and the information contained herein are not to be distributed outside of DHS. Case 01718 Policy for Vetting and Adjudicating Cases with National Security Concerns Page 4 of?cer may identify one or more indicators12 that may raise a NS concern. In such cases, the of?cer must ?rst con?rm whether the indicator(s) relates to the applicant, petitioner, bene?ciary, or derivative (?the individual?). 13 When a NS indicator has been identi?ed, the of?cer must then analyze the indicator in conjunction with the facts of the case, considering the totality of the circumstances, and determine whether an articulable link exists between the individual and an activity, individual, or organization described in sections (B), or (F), or or (B) of the Act. 1. For NS indicators, the of?cer should refer to the Operational Guidance for instruction on identifying those indicators that may raise a NS concern. 2. After con?rming the existence of a KST NS concern via a check, the of?cer must contact the Terrorist Screening Center (TSC), as instructed in the content of the TEC record, and must determine whether the KST NS concern relates to the individual. Of?cers are not authorized to request from the record owner any NS information related to a KST NS concern other than identi?cation of the subject. The of?cer must also consider and evaluate, in all cases, indicators related to family members or close associates of the individual to determine whether those indicators relate to the individual as well. B. Internal Vetting and Assessing Eligibility in Cases with National Security Concerns For both and KST concerns, once the concern has been identi?ed, the of?cer must conduct a thorough review of the record associated with the application or petition to determine if the individual is eligible for the bene?t sought. The of?cer must also conduct internal vetting14 to obtain any relevant information to support adjudication and, in some cases, to further examine the nature of the NS concern. 15 For NS concerns, the ?eld is authorized to perform internal and external vetting. See step IV.C below for an explanation of external vetting. For KST NS concerns, the ?eld is only authorized to perform internal vetting. Record owners in possession of NS information are not to be contacted. has sole responsibility for external vetting of KST NS concerns. 12 Guidelines for types of indicators that may be encountered during adjudication will be provided as an attachment to the Operational Guidance to assist officers in identifying NS concerns. 13 For purposes of this memorandum, the term ?individual? may include a petitioner. 14Internal vetting may consist of DHS, open source, or other systems checks; file review; interviews; and other research as specified in Operational Guidance. 15 If an exemption is granted under section of the Act for a terrorist-related inadrnissibility ground, and if no other NS concern is identified, no further vetting is necessary and the application may continue through the routine adjudication process. FOR OFFICIAL USE ONLY LAW ENFORCEMENT SENSITIVE This document is to be controlled, stored, handled, transmitted, distributed, and disposed of in accordance with DHS policy goveming the use of FOUO information. It contains information that may be exempt from release under the Freedom of Information Act (5 U.S.C. 552). This document and the information contained herein are not to be distributed outside of DHS. Case 01718 Policy for Vetting and Adjudicating Cases with National Security Concerns Page 5 The purpose of the eligibility assessment is to ensure that valuable time and resources are not unnecessarily expended externally vetting a case with a record owner when the individual is otherwise ineligible for the bene?t sought. When this is the case, the application or petition may be denied on any legally suf?cient grounds.16 When a NS concern exists, the NS information may be of a restricted or classi?ed nature. These NS or law enforcement operations-based restrictions are often directly linked to protecting sensitive sources, methods, operations, or other elements critical to national security. Access to this information is therefore limited to those with a direct need to know and, when applicable, appropriate security clearance. As a policy matter, USCIS requires that a thorough eligibility assessment and completion of internal vetting precede any outreach for access to NS information. C. External Vetting of National Security Concerns 1. NS Concerns In a case with a NS concern, the of?cer must initiate the external vetting process before the case may proceed to ?nal adjudication if: 0 the application or petition appears to be otherwise approvable, and internal vetting is complete; 0 there is an identi?ed record owner in possession of NS information; and 0 the NS concern remains. At this stage, the of?cer con?rms with the record owner the earlier USCIS identi?cation of the NS concern (see step IV.A above) and obtains additional information regarding the nature of the NS concern and its relevance to the individual. This is accomplished by obtaining from the record owner facts and fact patterns to be used in con?rming whether an articulable link exists between the individual and an activity, individual, or organization described in sections (Bthe Act. Additionally, the of?cer seeks to obtain additional information that may be relevant in determining eligibility and, when appropriate, removability. This process requires close coordination with law enforcement agencies, the Intelligence Community,17 or other record owners. If the external vetting process results in a ?nding that the NS concern no longer exists, and if the individual is otherwise eligible for the bene?t sought, the application or petition is approvable. 16 All references in this memorandum to ?denying? a case also encompass the possibility of referring an asylum case to an Immigration Judge. 17 Officers are not authorized to contact Intelligence Community members; such outreach is conducted by FOR OFFICIAL USE ONLY LAW ENFORCEMENT SENSITIVE This document is to be controlled, stored, handled, transmitted, distributed, and disposed of in accordance with DHS policy governing the use of FOUO information. It contains information that may be exempt from release under the Freedom of Information Act (5 U.S.C. 552). This document and the information contained herein are not to be distributed outside of DHS. Case 01718 Policy for Vetting and Adjudicating Cases with National Security Concerns Page 6 When USCIS obtains information from another government agency during the external vetting process, DHS policy guidance18 requires that authorization from the record owner be obtained prior to any disclosure of the information. Therefore, in order to use the information during adjudication, prior written authorization must be obtained from the record owner. If the information indicates that the individual is ineligible for the bene?t sought, and if permission from the record owner has been secured for the use of unclassi?ed information, 19 the application or petition may be denied based on that unclassi?ed information. 2. KST NS Concerns For KST NS concerns, ?eld of?cers are not authorized to conduct external vetting with record owners in possession of NS information. As stated above, only internal vetting of KST NS concerns is permitted at this stage. has sole responsibility for external vetting of KST NS concerns, which must be conducted in cases with a con?rmed KST hit that have been determined to be otherwise approvable. D. Adiudicating National Security Cases Upon completion of required vetting, if the NS concern remains, the of?cer must evaluate the result of the vetting and determine any relevance to adjudication, obtain any additional relevant information via a request for evidence, an interview, and/or an administrative site visit), and determine eligibility for the bene?t sought. Adjudication of a case with a NS concern focuses on thoroughly identifying and documenting the facts behind an eligibility determination, and, when appropriate, removal, rescission, termination, or revocation under the Act. If the individual is ineligible for the bene?t sought, the application or petition may be denied. If the vetting process results in a ?nding that the NS concern no longer exists, and if the individual is otherwise eligible for the bene?t sought, the application or petition may be approved. NS Concerns Of?cers are not authorized to approve applications with con?rmed NS concerns without supervisory approval and concurrence from a senior-level of?cial (as 18 See DHS Management Directive 11042.1, Safeguarding Sensitive But Unclassified (For O?icial Use Only) Information, dated 1-6-2005; and DHS Memorandum, Department of Homeland Security Guidelines for the Use of lassified Information in Immigration Proceedings (?Ridge Memo?), dated 10-4-2004. 19Requests for declassification of information and use of classified information during adjudication may only be made by Officers should refer to Operational Guidance for further instruction. FOR OFFICIAL USE ONLY LAW ENFORCEMENT SENSITIVE This document is to be controlled, stored, handled, transmitted, distributed, and disposed of in accordance with DHS policy governing the use of FOUO information. It contains information that may be exempt from release under the Freedom of Information Act (5 U.S.C. 552). This document and the information contained herein are not to be distributed outside of DHS. Case 01718 Policy for Vetting and Adjudicating Cases with National Security Concerns Page 7 de?ned in Operational Guidance). That of?cial also has discretion to request additional external vetting assistance from in accordance with Operational Guidance. 2. KST NS Concerns Of?cers are not authorized to approve applications with con?rmed KST NS concerns. If the senior?level of?cial concurs, external vetting assistance must be requested from in accordance with Operational Guidance. V. Conclusion Of?cers should make every effort to complete NS cases Within a reasonable amount of time, by taking into consideration the nature of the concern and the facts contained in each individual case. is available to provide technical expertise in answering questions that may arise in these cases. Any questions or issues that cannot be resolved in the ?eld regarding identi?cation, vetting, or adjudication of cases with NS concerns are to be addressed through the established chain of command. Distribution List: Regional Directors District Directors Field Of?ce Directors Service Center Directors Asylum Of?ce Directors FOR OFFICIAL USE ONLY LAW ENFORCEMENT SENSITIVE This document is to be controlled, stored, handled, transmitted, distributed, and disposed of in accordance with DHS policy governing the use of FOUO information. It contains information that may be exempt from release under the Freedom of Information Act (5 U.S.C. 552). This document and the information contained herein are not to be distributed outside of DHS. .. Case Document 112 Filed 02/08/18 Page 63 of 218 EXHIBIT 2/7/2018 Written testimony DHS Secretary Kirstjen Nielsen Document for a Senate Committee the Judiciary hearing Page titled “Oversight the United States Depar… Caseof 2:17-cv-00094-RAJ 112 on Filed 02/08/18 64 ofof218 Official website of the Department of Homeland Security U.S. Department of Homeland Security Written testimony of DHS Secretary Kirstjen Nielsen for a Senate Committee on the Judiciary hearing titled “Oversight of the United States Department of Homeland Security” Release Date:  January 16, 2018 216 Hart Senate Office Building Chairman Grassley, Ranking Member Feinstein, and members of the Committee, thank you for the opportunity to testify before you today. The men and women of the Department of Homeland Security (DHS) are working tirelessly to make our communities safer and our Nation more secure, and I am honored to speak on their behalf. While both our Department and this Committee oversee a broad portfolio, today my prepared remarks will focus on the current threat environment, our efforts to elevate the baseline of our security posture across the board, and how our Department’s immigration priorities are helping to secure our Nation by recognizing that the American people are the primary stakeholders in our Nation’s immigration system. Protecting Our Open Society in a New Age of Terrorism Today, we face a serious and persistent terror threat that, according to my assessment, will not diminish anytime soon. While we have made it harder for terrorists to execute large-scale attacks, changes in technology have made it easier for adversaries to plot attacks in general, https://www.dhs.gov/news/2018/01/16/written-testimony-dhs-secretary-kirstjen-nielsen-senate-committee-judiciary-hearing 1/14 2/7/2018 Written testimony DHS Secretary Kirstjen Nielsen Document for a Senate Committee the Judiciary hearing Page titled “Oversight the United States Depar… Caseof 2:17-cv-00094-RAJ 112 on Filed 02/08/18 65 ofof218 to inspire and radicalize new followers, and to recruit beyond borders. The problem is compounded by the use of simple, “do-it-yourself” terror tactics. Acts of terror and mass violence have become all-too-frequent around the world, and our enemies continue to target us throughout the West: Paris, San Bernardino, Brussels, Orlando, Istanbul, Nice, Berlin, London, Barcelona, New York City, and beyond. As the United States and our allies drive ISIS from its safe haven in Syria and Iraq, we are seeing operatives disperse, and we are concerned those foot soldiers will start focusing more heavily on external operations against the United States, our interests, and our allies as they have lost territory. The October 31, 2017 attack in New York City is a prime example of how terrorism is evolving. The suspect was apparently radicalized in part by online terrorist propaganda, his attack plotting went undetected, he choose a public area as his target, and selected a vehicle as his weapon. At the same time, terrorists overseas are experimenting with more sophisticated tools— including drones, chemical weapons, and artfully concealed improvised explosive devices—to further spread violence and fear. In short, what was once a preference for large-scale attacks is now an “all-of-the-above” approach to terrorism. Today, I want to highlight the threat to so-called soft targets. Large gatherings and public venues and events are appealing targets for terrorists and violent criminals because of their accessibility and the potential to inflict significant physical, psychological, and economic damage. That is why DHS is working to help our state, local, tribal, territorial, and private sector partners —and the public—better protect such sites and events. We actively share intelligence bulletins and analysis with homeland security stakeholders nationwide to make sure they understand the danger, use best practices to counter nascent attack methods, train frontline defenders to combat such threats, and are always on alert to the potential for violent incidents. Our National Protection and Programs Directorate (NPPD) is helping to lead the charge on soft target security, and in the coming weeks we expect to roll out additional information about how we are stepping up our efforts even further. Our goal is to: Demonstrably reduce the risk of successful attacks on soft targets; Ensure the Department has the capability to support visible efforts to enhance soft target security in order to safeguard the American people; Develop a “center of gravity” for Department-wide resources available to support the critical infrastructure community in securing soft targets; and https://www.dhs.gov/news/2018/01/16/written-testimony-dhs-secretary-kirstjen-nielsen-senate-committee-judiciary-hearing 2/14 2/7/2018 Written testimony DHS Secretary Kirstjen Nielsen Document for a Senate Committee the Judiciary hearing Page titled “Oversight the United States Depar… Caseof 2:17-cv-00094-RAJ 112 on Filed 02/08/18 66 ofof218 Promote a dynamic process to identify and address soft target security gaps based on threats and incidents. DHS manages programs that provide training and informational resources focused on active shooter preparedness, which play a key role in preparing facilities and their employees to proactively think about the role they play in the safety and security of their businesses and communities. This includes efforts like the Hometown Security Initiative, which develops critical partnerships between the private sector and the public sector to provide expert counsel and recommendations about protective measures they can implement to protect facilities and venues in their communities. In addition, the DHS Federal Law Enforcement Training Center’s Private Public Partnership Academy brings together commercial shopping center executives, their private security professionals, and their local law enforcement representatives to receive standardized training in active shooter threat mitigation strategies and tactical medical training, and to practice these skills in large public event gathering exercises. Furthermore, the Science and Technology Directorate’s SAFETY Act Program provides critical incentives for the development and deployment of anti-terrorism technologies by providing liability protections for “qualified anti-terrorism technologies.” This applies to a number of stadiums nationwide, too, which can leverage the Program to better protect major events and gatherings. Advance Terrorism Prevention Efforts In addition to counterterrorism, the Department is rededicating itself to terrorism prevention. Americans do not want us to simply stop violent plots, they want us to keep them from materializing in the first place. As part of this effort, we have launched an end-to-end review of all DHS terrorism-prevention programs, projects, and activities. In the coming months we will work to ensure our approach to terrorism prevention is risk-based and intelligence-driven, focused on effectiveness, and provides appropriate support to those on the frontlines whom we rely on to spot signs of terrorist activity. DHS efforts to combat terrorist recruitment and radicalization fall into several primary categories, including: (1) prioritizing education and community awareness; (2) focusing on counter-recruitment; (3) emphasizing the importance of early warning through better reporting of suspicious activity; and (4) promoting early intervention. I know this Committee has spent a good deal of time working with the technology companies on the terror threat. We have had robust and ongoing engagement with the technology sector to increase its efforts to address terrorists’ use of the internet, including combating terrorist messaging online. This falls into our “counter-recruitment” line of effort. While the internet https://www.dhs.gov/news/2018/01/16/written-testimony-dhs-secretary-kirstjen-nielsen-senate-committee-judiciary-hearing 3/14 2/7/2018 Written testimony DHS Secretary Kirstjen Nielsen Document for a Senate Committee the Judiciary hearing Page titled “Oversight the United States Depar… Caseof 2:17-cv-00094-RAJ 112 on Filed 02/08/18 67 ofof218 itself is not the source of the problem, it is abused to promote radicalization, recruitment to violence, and to raise funds for terrorist organizations. Earlier this year, Deputy Secretary Duke traveled to San Francisco to meet with the Global Internet Forum to Counter Terrorism (GIFCT), a consortium of tech companies, including Facebook, Twitter, Microsoft, and Google, which are working to counter terrorists exploiting their platforms. She also conferred with them at a G7 Interior Ministers Meeting in Italy in October, and I am pleased to report we have seen progress and responsiveness as a result of these engagements. Even though there is still more to be done, the companies are directly addressing our concerns by taking important steps to make their platforms less hospitable to terrorists. I am going to continue these high-level engagements to keep up the momentum, and I plan to travel out West to confer with these companies again in the coming weeks. Aviation Security When it comes to counterterrorism priorities, commercial aviation remains a major concern. We have seen a spider web of threats against the aviation sector, which continues to be a top target for global jihadist groups. We are working with our partners across the global aviation community to collaborate, innovate, and implement new security practices in the face of evolving threats. This summer, we announced new “seen” and “unseen” security measures, representing the most significant aviation security enhancements in many years. Indeed, our ongoing Global Aviation Security Plan is making U.S.-bound flights more secure and will raise the baseline of aviation security worldwide. We have required the implementation of security measures at all Last Point of Departure airports to the United States, including enhancements to protect aircraft against concealed explosives, to counter insider threats, and to better identify suspicious passengers. In September 2017, we also initiated new measures, utilizing the Transportation Security Administration’s (TSA) Security Directives and Emergency Amendments (SD/EAs), to address threats to cargo aircraft inbound to the United States. These measures require certain carriers to provide additional data to allow U.S. Customs and Border Protection (CBP) to better assess the risk of shipments prior to loading. We continue to review ways to address threats and raise the baseline of cargo security screening overseas, including further SD/EAs to expand cargo security enhancements to additional countries. International organizations also play a vital role in strengthening transportation security around the globe. For example, the United States is a Member State of the International Civil Aviation Organization (ICAO), an arm of the United Nations that sets safety and security https://www.dhs.gov/news/2018/01/16/written-testimony-dhs-secretary-kirstjen-nielsen-senate-committee-judiciary-hearing 4/14 2/7/2018 Written testimony DHS Secretary Kirstjen Nielsen Document for a Senate Committee the Judiciary hearing Page titled “Oversight the United States Depar… Caseof 2:17-cv-00094-RAJ 112 on Filed 02/08/18 68 ofof218 standards for international air travel. TSA is urging ICAO to adopt more rigorous security standards and is encouraging ICAO members to join us in embracing innovation. TSA’s aggressive pursuit of innovation includes exploring the use of Computed Tomography systems at airport checkpoints. These systems feature improved 3D-imaging and enhanced detection capabilities and will play an important role in our Global Aviation Security Plan. TSA has also started testing credential authentication technologies at a number of airports to help verify passengers’ identities and their ticketing and vetting status. Other technologies with promise are mobile handheld solutions that quickly and easily identify explosives. Consistent with the longstanding practice of the Department, as we pilot, test, or implement these new technologies and programs, we will continue to review the privacy impacts of their deployment, report on our findings, and work closely with airports and industry. In many of these areas, we will continue to need Congressional assistance, especially as we work to keep up with our enemies’ changing tactics. In some cases, DHS and other departments and agencies lack certain legal authorities to engage and mitigate the emerging dangers we are seeing. For example, we lack the authorities needed to counter threats from unmanned aircraft systems (UAS). We know that terrorists are using drones to conduct aerial attacks in conflict zones, and already we have seen aspiring terrorists attempt to use them in attacks outside the conflict zone. This is a very serious concern for the Department. Last year, the Administration delivered a government-wide legislative proposal to Congress that would provide additional counter-UAS authorities to DHS and other federal departments and agencies to legally engage and mitigate UAS threats in the National Airspace System. After extensive discussions, we are working to provide an updated proposal to Capitol Hill. In the meantime, I am eager to share our concerns in a classified setting, which we recently did with the House Homeland Security Committee. I expect to have the legislative proposal to you in the next few weeks, and I urge the Committee to help champion efforts to resolve this challenge. Vetting and Screening At the President’s direction, the Department is undertaking historic efforts to secure our country. The goal is to prevent national security threat actors, especially terrorists and criminals, from traveling to the United States, while better facilitating lawful trade and travel. The Administration has made it a priority to intensify screening and vetting and to provide the American people the security they deserve. All foreign nationals—no matter how they try to get into our country—now face tougher vetting and tighter screening. The changes have made it harder for terrorists, criminals, and other nefarious actors to reach America. https://www.dhs.gov/news/2018/01/16/written-testimony-dhs-secretary-kirstjen-nielsen-senate-committee-judiciary-hearing 5/14 2/7/2018 Written testimony DHS Secretary Kirstjen Nielsen Document for a Senate Committee the Judiciary hearing Page titled “Oversight the United States Depar… Caseof 2:17-cv-00094-RAJ 112 on Filed 02/08/18 69 ofof218 This is important. The majority of individuals convicted on terrorism charges in the United States since 9/11 were foreign-born. While not all were radicalized before coming to the United States, we must do everything we can to detect individuals with terror ties or those who have been radicalized to violence before they reach our country. At the same time, our policies will be shaped by risk so that we focus on identifying nefarious actors while effectively facilitating the lawful entry of peaceful, freedom-loving people from around the world. To that end, DHS is improving almost every stage of the vetting process for immigrants, refugees, and other U.S.-bound individuals, from applications to arrivals. For instance, we are enhancing applicant interviews by making them more intensive and helping interviewers better identify hidden terror ties, signs of radicalization, and fraud. We are requiring more data from applicants on their backgrounds, employment history, associates, travel, and more to verify their claims and detect unusual activity. We are also better leveraging biometrics to validate traveler identities and spot persons of interest. Investigations are also being intensified. DHS is bringing investigations into the digital age by collecting more social media data from applicants and screening it against classified and unclassified information, as appropriate. Our frontline personnel are fusing more intelligence into the immigration and travel process to uncover previously unknown terrorism, criminal, and other suspicious connections. We are expanding round-the-clock security checks, ensuring that, where appropriate, individuals are continuously vetted against intelligence and criminal databases, rather than only at the time of their application. Additionally, travel and arrival procedures have been tightened. As noted earlier, we are launching sweeping aviation security enhancements so that all U.S.-bound passenger flights are better protected against insider threats, concealed explosives, and dangerous travelers. DHS has bolstered dedicated counterterrorism teams at U.S. ports of entry, allowing us to more effectively catch terror suspects that may have slipped through the cracks. We have already seen very real successes from this array of enhancements. I cannot get into the details in this setting, but I can share that these measures have allowed us to detect and disrupt terror suspects we likely would not have identified otherwise. In the medium term, DHS is looking at making further improvements. We are examining broad ways to streamline how we organize our vetting activities across the interagency. This includes consolidating screening and vetting functions, further integrating intelligence data where appropriate, and better leveraging law enforcement information. The Department has also implemented historic efforts to step up international cooperation. For the first time ever, DHS established a clear baseline for what countries must do to help the United States confidently screen travelers and immigrants from their territory. Every country https://www.dhs.gov/news/2018/01/16/written-testimony-dhs-secretary-kirstjen-nielsen-senate-committee-judiciary-hearing 6/14 2/7/2018 Written testimony DHS Secretary Kirstjen Nielsen Document for a Senate Committee the Judiciary hearing Page titled “Oversight the United States Depar… Caseof 2:17-cv-00094-RAJ 112 on Filed 02/08/18 70 ofof218 in the world is now required to meet high security standards and to help us understand who is coming into our country. As required under President Trump’s Executive Order Protecting the Nation from Foreign Terrorist Entry into the United States (EO 13780), all foreign governments have been notified of the new standards, which include the sharing of terrorist identities, criminal history information, and other data needed to ensure public safety and national security, as well as the requirement that countries issue secure biometric passports, report lost and stolen travel documents to INTERPOL, and take other essential actions to prevent identity fraud. DHS assessed whether countries meet the new standards, in coordination with the Department of State and the Department of Justice. For countries that failed to do so, DHS recommended to the President that nationals of those countries be subject to tailored entry restrictions or other lawful limitations and security enhancements, which he effectuated through a Presidential proclamation in October. Most foreign governments already meet the minimum standards we outlined or are on the path to doing so. But we are working closely with the governments that did not meeting the standards, and we have warned countries that are willfully noncompliant that the United States puts the security of its people first and will continue to enforce these reasonable, baseline requirements and restrictions. Let me be clear: this has nothing to do with race or religion, and our goal is certainly not to block people from visiting the United States. America is proud of its history as a beacon of hope to those who want to visit our country or become a part of our enduring democratic republic. Rather, the goal is to protect Americans and ensure foreign governments are working with us—and not inhibiting us—from stopping terrorists, criminals, and other national security threat actors from traveling into our communities undetected. Visa Waiver Program We are also looking at ways to further strengthen the Visa Waiver Program (VWP). First and foremost, the VWP is a security partnership program. It mandates high and consistent standards from partner countries in the areas of national security, law enforcement, and immigration enforcement to detect and prevent terrorists, criminals, and other potentially dangerous individuals from traveling to the United States—while still facilitating legitimate travel and tourism. Currently, 38 countries participate in the VWP, which allows their citizens to travel to the United States for business or tourism for stays of up to 90 days after applying and being approved through the Electronic System for Travel Authorization (ESTA). In return, these countries must comply with program requirements to enter into information-sharing protocols that enable the relay of information concerning known and suspected terrorists and https://www.dhs.gov/news/2018/01/16/written-testimony-dhs-secretary-kirstjen-nielsen-senate-committee-judiciary-hearing 7/14 2/7/2018 Written testimony DHS Secretary Kirstjen Nielsen Document for a Senate Committee the Judiciary hearing Page titled “Oversight the United States Depar… Caseof 2:17-cv-00094-RAJ 112 on Filed 02/08/18 71 ofof218 criminals; consistent and timely lost and stolen passport information reporting; and robust border and travel document screening. As a result of these program requirements, countries have adopted new laws, policies, and practices that strengthen our mutual security. The Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015, combined with Secretarial action, have strengthened the VWP’s security provisions over the past two years. VWP countries are now required to issue high-security electronic passports (epassports); implement information sharing arrangements to exchange terrorist identity information; establish mechanisms to validate e-passports at each key port of entry; report all lost and stolen passports to INTERPOL or directly to the United States no later than 24 hours after the country becomes aware of the loss or theft; and screen international travelers against the INTERPOL Stolen and Lost Travel Documents (SLTD) database and notices. As with other operational activities of DHS, a full discussion of the privacy impact of these initiatives and how we mitigate the risk to personal privacy is available on our website. Since enactment of the Visa Waiver Program Improvement and Terrorist Travel Prevention Act, DHS has realized an increase in the sharing of terrorist identity information. Several countries have increased the frequency of their reporting of lost and stolen passports—VWP countries account for over 70 percent of the almost 73 million lost and stolen travel documents reported to INTERPOL. All VWP countries are now issuing and using for travel to the United States fraudresistant e-passports that meet or exceed the ICAO standards. Over 70,000 ESTA applications have been denied, cancelled or revoked under enforcement of the VWP Improvement Act’s eligibility restrictions for VWP travel. But there is always room for improvement. In May 2017, former Secretary Kelly directed the Department to review and provide options to further enhance VWP. Since then, DHS has worked—both internally and with our interagency partners—to evaluate a number of recommendations. Last month I announced new changes, as a result of this review, which will make our country more secure and make it harder for terrorists to cross international borders and, ultimately, to get closer to our shores. Broadly, the new measures will require our foreign partners to use the counterterrorism data we provide them to screen travelers transiting their territory; expand and standardize our ability to share and receive information that enhances our ability to identify, monitor, and counter known and suspected terrorists and other individuals who may pose a threat to the United States; address the problem of visitors overstaying when traveling under the VWP; and synchronize efforts to raise security standards under TSA’s Global Aviation Security Plan, in particular by ensuring foreign partners are taking action to defend against insider threats to aircraft. https://www.dhs.gov/news/2018/01/16/written-testimony-dhs-secretary-kirstjen-nielsen-senate-committee-judiciary-hearing 8/14 2/7/2018 Written testimony DHS Secretary Kirstjen Nielsen Document for a Senate Committee the Judiciary hearing Page titled “Oversight the United States Depar… Caseof 2:17-cv-00094-RAJ 112 on Filed 02/08/18 72 ofof218 The bottom line is that, in order to attain and maintain VWP designation and visa-free travel to our territory, a country and its nationals cannot represent a threat to the United States and must be working in partnership with us to prevent terrorist travel. In all instances, as the Secretary of Homeland Security, I retain and will use the statutory authority to suspend or terminate a country’s participation in the VWP if there is a credible threat originating from that country that poses an imminent danger to the United States or its citizens. Border Security We are also strengthening our border security and our enforcement of immigration laws. This Administration’s immigration principles will ensure safe and lawful admissions, defend the safety and security of our country, and protect American workers and taxpayers. Border security involves preventing illegal entry of goods and people along more than 7,000 miles of land along our southern and northern borders, approximately 95,000 miles of shoreline, and at 328 ports of entry. Overall, apprehensions at the southern border have decreased, which leads us to believe that fewer people are attempting illegal entry. In Fiscal Year (FY) 2016, there were 408,870 apprehensions at the Southern Border; in FY 2017, there were 303,916. That’s a decrease of nearly 26 percent and it represents the lowest level in 45 years. However, make no mistake: that is nearly one thousand illegal immigrants coming across our border every day. This is an unacceptable risk to public safety and national security. Additionally, since last spring, we have seen a dangerous increase in border crossings by families and unaccompanied alien children. We must gain operational control of our borders. DHS needs Congressional support to deter illegal immigration and fully execute the President’s Executive Orders on immigration. In compliance with Executive Order 13767: Border Security and Immigration Enforcement Improvements, DHS has conducted a comprehensive study of the security of the southern border that addresses all of the elements that provide an integrated solution for the Nation. Our first priority is to expand on our existing southern border wall system and close legal loopholes that encourage and enable illegal immigration and create a corresponding backlog in the courts. We currently have an immigration court backlog of more than 650,000 cases pending before the Department of Justice’s Executive Office for Immigration Review. We also have a massive asylum backlog with more than 270,000 pending cases before U.S. Citizenship and Immigration Services (USCIS). Recognizing the unsustainability of the asylum case backlog, USCIS has implemented efficiency measures designed to reduce adjudication times. Similarly, the Department of Justice has taken action to reduce unwarranted case continuances in immigration courts, which helps reduce the backlog while affording aliens full and fair hearings. To further reduce the “pull factors” and restore integrity to our immigration https://www.dhs.gov/news/2018/01/16/written-testimony-dhs-secretary-kirstjen-nielsen-senate-committee-judiciary-hearing 9/14 2/7/2018 Written testimony DHS Secretary Kirstjen Nielsen Document for a Senate Committee the Judiciary hearing Page titled “Oversight the United States Depar… Caseof 2:17-cv-00094-RAJ 112 on Filed 02/08/18 73 ofof218 benefits adjudication process, we must tighten case processing standards, including the “credible-fear” standard, impose and enforce penalties for fraud, and ensure applicants are fully vetted before they are allowed access to the United States. We must expedite the removal of illegal border-crossers and ensure that unaccompanied alien children and their family members are safely and expeditiously returned to their home countries, if they are not eligible for asylum or other relief from removal, while at the same time appropriately processing those with valid protection claims. To reduce the immigration court backlog and make the removal process more efficient, we seek to hire an additional 1,000 ICE attorneys over the next few years, and support the Department of Justice’s hiring of an additional 370 Immigration Judges. We also seek to discourage illegal re-entry by enhancing penalties and expanding categories of inadmissibility. In addition, visa-overstays account for roughly 40 percent of all illegal immigration in the United States. In FY 2016, more than 628,000 aliens overstayed their visas. By increasing overstay penalties and expanding ICE’s enforcement tools, we can help ensure that foreign workers, students, and visitors respect the terms of their temporary visas. We need Congress to authorize the Department to raise and collect fees from immigration benefit applications to fund additional enhancements to our immigration system called for by the President’s Executive Orders. The President has outlined much of the above in his immigration legislation principles, and with Congress, we have reached a general consensus on four corners of an immigration deal: border security, to include the authority to remove people we apprehend quickly, according to the rule of law and court orders; ending the diversity visa; ending extended family chain migration; and finding a permanent solution for the current Deferred Action for Childhood Arrival (DACA) recipients. While there are other items to be addressed, these four pillars are the minimum we need to secure our country. We are looking for a permanent solution to our immigration and border security problems. We cannot be here again debating the same issue in two, five, or ten years. I look forward to working with any and all members of Congress to find a solution to our immigration and border security needs. Drugs In the U.S. the illicit drug consumption has resulted in a national health crisis, as stated by President Trump regarding the opioid crisis. But the true threat is much broader and includes the increasing illicit drug supply trafficked into the United States by transnational criminal organizations. This is a National Security threat as stated in the National Security Strategy: https://www.dhs.gov/news/2018/01/16/written-testimony-dhs-secretary-kirstjen-nielsen-senate-committee-judiciary-hearing 10/14 2/7/2018 Written testimony DHS Secretary Kirstjen Nielsen Document for a Senate Committee the Judiciary hearing Page titled “Oversight the United States Depar… Caseof 2:17-cv-00094-RAJ 112 on Filed 02/08/18 74 ofof218 “The United States must devote greater resources to dismantle transnational criminal organizations and their subsidiary networks…..Every day they deliver drugs to American communities, fuel gang violence, and engage in cybercrime. The illicit opioid epidemic, fed by drug cartels as well as Chinese fentanyl traffickers, kills tens of thousands of Americans each year.” DHS is committed to improving our drug detection capability and refocusing our border security efforts to stop more of these deadly and pernicious substances from entering our country. DHS is working closely with its federal, state, and local law enforcement partners, to interdict shipments of fentanyl and other opioids in transit to the United States, and is targeting the these organizations domestically and internationally, to disrupt the flow of these dangerous drugs through illicit pathways into the United States. Enforcing Immigration Laws We are also prioritizing the enforcement of our immigration laws in the interior of our country. There are nearly one million aliens with final orders of removal across the country—meaning these removable aliens were afforded due process of law, had their day in court, and were ultimately ordered removed by a judge—yet they remain in our nation and ICE only has 6,000 Deportation Officers to arrest and remove them. The Administration looks to strengthen law enforcement by hiring 10,000 more ICE officers and agents, and supports the request from the Department of Justice to hire 300 more federal prosecutors. To further protect our communities, we must end so-called “sanctuary” jurisdictions. Hundreds of state and local jurisdictions across the country that do not honor requests from ICE to hold criminal aliens who are already in state and local custody. Instead, they allow them back into their communities, where they are allowed to commit more crimes. This also poses a greater risk of harm to ICE officers, who must locate and arrest these criminals in public places, and increases the likelihood that the criminal aliens can resist arrest or flee. Rather than enhancing public safety, sanctuary jurisdictions undermine it. The only “sanctuary” these jurisdictions create is a safe haven for criminals. States and localities that refuse to cooperate with federal authorities should be ineligible for funding from certain grants and cooperative agreements. Authorizing and incentivizing states and localities to enforce immigration laws would further help ICE with its mission and make all communities safer. In FY 2017, 1,761 criminal illegal aliens were released from ICE custody because of a 2001 Supreme Court decision that generally requires ICE to release certain removable aliens with final orders of removal—including violent criminals—within 180 days, if they have not been removed and there is no significant likelihood of removal in the reasonably foreseeable future. https://www.dhs.gov/news/2018/01/16/written-testimony-dhs-secretary-kirstjen-nielsen-senate-committee-judiciary-hearing 11/14 2/7/2018 Written testimony DHS Secretary Kirstjen Nielsen Document for a Senate Committee the Judiciary hearing Page titled “Oversight the United States Depar… Caseof 2:17-cv-00094-RAJ 112 on Filed 02/08/18 75 ofof218 Legally insupportable judicial interpretations of the law regarding the detention and removability of criminal aliens have eroded ICE’s authority to keep aliens in custody pending removal. I urge Congress to legislatively correct these errors and expand the authority for mandatory detention for criminal aliens. This will help end years of court-ordered “catch-andrelease” and improve community safety. Buy American, Hire American With the issuance of Executive Order 13788, Buy American and Hire American, the President directed me, along with the Secretaries of State and Labor and the Attorney General, to propose new rules and issue new guidance, and revise existing rules and guidance as soon as practicable, “to protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud and abuse.” I take that directive to heart. The Department is fully committed to eradicating fraud and abuse in our immigration system in order to serve the interests of Americans. Such a system must help create higher wages and employment rates for U.S. workers, and protect their economic interests by seeking to ensure that employment-based visas are awarded to the most-skilled beneficiaries. DHS is working on a combination of rulemaking, policy memoranda, and operational changes to implement this important initiative. Pursuant to this Executive Order, USCIS announced it will take a more targeted approach to combatting fraud and abuse in the employment-based visa programs, including the H-1B program. To help end H-1B petitioner fraud and abuse, USCIS has established a Targeted Site Visit and Verification Program (TSVVP). Targeted site visits allow USCIS to focus its resources where fraud and abuse of certain programs are more likely to occur. TSVVP initially focused on H-1B petitions filed by companies that are H-1B dependent (as defined by statute), employers petitioning for H-1B workers who will be placed off-site at another company’s location, or cases where USCIS cannot validate the H-1B petitioner’s business information through commercially-available data. USCIS has also taken great strides to improve transparency with the public about employment-based immigration programs. The agency has published new data on its website to give the public more information regarding the use of nonimmigrant workers in the H-1B, H-2B, and L nonimmigrant programs. Information about the use and legal authority for employment authorization documents has also been published. In connection with protecting U.S. workers, the Department is looking at ways to expand and enhance the E-Verify system. Currently, more than 700,000 employers use the free, web-based system to verify the work eligibility of their workforce. By preventing employers from hiring illegal alien labor and displacing U.S. workers, we can improve job opportunities and raise https://www.dhs.gov/news/2018/01/16/written-testimony-dhs-secretary-kirstjen-nielsen-senate-committee-judiciary-hearing 12/14 2/7/2018 Written testimony DHS Secretary Kirstjen Nielsen Document for a Senate Committee the Judiciary hearing Page titled “Oversight the United States Depar… Caseof 2:17-cv-00094-RAJ 112 on Filed 02/08/18 76 ofof218 wages for U.S. workers by making it more difficult for illegal aliens to obtain lawful employment. We need Congress to pass legislation to strengthen the E-verify program and, at a minimum, make it mandatory for all employers. The Department stands ready to implement such a directive. Going forward, DHS will release additional data about immigration programs that affect employment, and additional policies and regulations will be revised in accordance with Executive Order 13788. As my predecessors often noted, DHS enforces the laws but has no power to make them; only Congress can do that. The President has repeatedly made clear that our immigration system must serve the national interest, and I ask this Committee to consider legislative reforms to implement the Administration’s immigration principles. We need Congress to act to make our streets safer, to give our officials the tools they need to protect American workers, and provide relief to those who are lawfully eligible for protection under our immigration laws. DHS remains committed to working with Congress to achieve these important objectives. Legal Immigration Reforms The United States has one of the most generous immigration systems in the world. Every day, an average of nearly 2,000 people become U.S. citizens. Our Nation has a long history of welcoming immigrants who came to this country in search of freedom and opportunity. Providing lawful permanent resident status based primarily on merit—not solely on family connections—would promote assimilation, financial independence, and upward mobility for immigrants. By establishing a points-based system for merit-based migration, the predominant system in most developed countries, we can attract the highest-caliber immigrants, and begin to roll back decades of policies that have suppressed wages, contributed to income disparities, fueled unemployment, and strained state and federal resources. Therefore, our immigration system must be radically reformed to meet the economic needs of our country. Most low-skilled immigration into the United States occurs legally through our immigrant-visa system, which, unlike many other countries’ systems, prioritizes family-based chain-migration. Each year, the United States grants lawful permanent resident status (green cards) to more than one million people; two-thirds of that total is based on a person having a sponsoring relative in the United States, regardless of the new immigrant’s skills, education, English language proficiency, or ability to successfully assimilate. This system of chainmigration has accounted for more than 60 percent of immigration into the United States over the past 35 years. We must end chain-migration, and limit family-based green cards to spouses and the minor children of U.S. citizens and lawful permanent residents. https://www.dhs.gov/news/2018/01/16/written-testimony-dhs-secretary-kirstjen-nielsen-senate-committee-judiciary-hearing 13/14 2/7/2018 Written testimony DHS Secretary Kirstjen Nielsen Document for a Senate Committee the Judiciary hearing Page titled “Oversight the United States Depar… Caseof 2:17-cv-00094-RAJ 112 on Filed 02/08/18 77 ofof218 We must also eliminate the “diversity visa” lottery. Every year, through this lottery, 50,000 green cards are awarded at random to foreign nationals. Many of these lottery beneficiaries have absolutely no ties to the United States, no special skills, and limited education. The random lottery program has not been adopted by other countries and does not adequately serve our national interest. Conclusion Chairman Grassley, Ranking Member Feinstein, and distinguished members of the Committee, I thank you again for the opportunity to testify today. The challenges I have laid out are great, but the Department stands ready to execute its mission to secure the homeland. In partnership with Congress, we will continue to adapt to meet the current threat environment and prepare for the future. I look forward to your questions. Topics:  Border Security (/topics/border-security) , Immigration and Citizenship Services (/topics/immigration-and-citizenshipservices) , Immigration Enforcement (/topics/immigration-enforcement) , International (/topics/international) , Law Enforcement Partnerships (/topics/law-enforcement-partnerships) Keywords:  aviation security (/keywords/aviation-security) , vetting (/keywords/vetting) , Visa Waiver Program (/keywords/visawaiver-program) Last Published Date: January 16, 2018 https://www.dhs.gov/news/2018/01/16/written-testimony-dhs-secretary-kirstjen-nielsen-senate-committee-judiciary-hearing 14/14 Case Document 112 Filed 02/08/18 Page 78 of 218 EXHIBIT Draft DHS Report Called forDocument Long-Term Surveillance of Sunni02/08/18 Muslim Immigrants – Foreign Policy Case 2:17-cv-00094-RAJ 112 Filed Page 79 of 218 2/7/2018 EXCLUSIVE Draft DHS Report Called for LongTerm Surveillance of Sunni Muslim Immigrants Those fitting broad “at-risk” profiles would be targeted for continuous vetting. BY GEORGE JOSEPH FEBRUARY 5, 2018, 4:53 PM A Department of Homeland Security draft report from late January called on authorities to continuously vet Sunni Muslim immigrants deemed to have “atrisk” demographic profiles. The draft report, a copy of which was obtained by Foreign Policy, looks at 25 terrorist attacks in the United States between October 2001 and December 2017, concluding there would be “great value for the United States Government in dedicating resources to continuously evaluate persons of interest” and suggesting that immigrants to the United States be tracked on a “long-term basis.” If the report’s recommendations were implemented, it would represent a vast expansion of the Trump administration’s policies aimed at many Muslim immigrants, extending vetting from those trying to enter the United States to those already legally in the country, including permanent residents. The report was produced at the request of U.S. Customs and Border Protection (CBP) Commissioner Kevin McAleenan on Jan. 22, according to internal DHS correspondence reviewed by FP. The purpose of the report, the document says, is to “inform United States foreign visitor screening, immigrant vetting and on-going evaluations of United States-based individuals who might have a higher risk of becoming radicalized and conducting a violent attack.” In the report, CBP identifies a broad swath of Sunni Muslim residents as being potentially “vulnerable to terrorist narratives,” based on a set of risk indicators, such as being young, male, and having national origins in “the Middle East, South Asia or Africa.” http://foreignpolicy.com/2018/02/05/draft-dhs-report-surveillance-of-muslim-immigrants/ 1/6 2/7/2018 Draft DHS Report Called forDocument Long-Term Surveillance of Sunni02/08/18 Muslim Immigrants – Foreign Policy Case 2:17-cv-00094-RAJ 112 Filed Page 80 of 218 FP, which reviewed the original draft document and related correspondence, is publishing a reproduced version of the text of the report. In response to queries from FP, a CBP spokesperson called the report a “first draft” that has already been changed and is still undergoing revisions. “[I]t is extremely important to highlight an important aspect – the document that was improperly provided to you is not a final CBP intelligence assessment, and therefore does not reflect CBP’s policy on this matter,” the spokesperson wrote in an email. “More specifically, the initial draft assessment in your possession not only is still undergoing internal CBP review, but, at the time of its improper disclosure, did not reflect a large number of substantive comments and revisions that have since been made to subsequent versions of the document as a result of CBP’s internal and external review process.” The CBP draft report comes on the heels of a controversial study by DHS and the Justice Department, released on Jan. 16, which claimed that three out of every four individuals convicted of international terrorism or terrorism-related offenses were immigrants. Critics have charged that the joint report had serious methodological issues and cherrypicked the data to justify the Trump administration’s restrictive immigration policies. The draft CBP report shares similar methodological problems, according to current and former DHS officials who spoke to FP. A DHS official who reviewed the report and requested anonymity because they were not authorized to speak about it said this terrorist incident analysis, which focuses exclusively on “radical Sunni Islamist militancy,” is currently the only such risk analysis product they know of circulating within the department. The official also noted that the draft’s title — “Demographic Profile of Perpetrators of Terrorist Attacks in the United States Since September 2001 Attacks Reveals Screening and Vetting Implications” — is meant to sound all-encompassing, when, in fact, it is limited to select cases. “First, this report would steer policymakers to implement unfair and discriminatory surveillance of particular ethnic groups,” the DHS official told FP. “Second, the analysis, which is misleadingly packaged as a comprehensive analysis of post-9/11 terrorism, could lead policymakers to overlook significant national security threats.” A former senior DHS official also expressed concern about the way the report was formulated. “It feels very much like the self-licking ice cream cone,” the former official said. “That is, they have presented an answer to a question that has not specifically been asked.” http://foreignpolicy.com/2018/02/05/draft-dhs-report-surveillance-of-muslim-immigrants/ 2/6 2/7/2018 Draft DHS Report Called forDocument Long-Term Surveillance of Sunni02/08/18 Muslim Immigrants – Foreign Policy Case 2:17-cv-00094-RAJ 112 Filed Page 81 of 218 The former official said the assessment appears to rely on a “sweeping classification to military-aged males from a very specific group across all classes of émigré.” Such an approach risks “putting a projection on an entire class that they are never fully American.” The focus on a specific group of Muslims is particularly concerning, said another former DHS official, referring to the “at-risk” demographic selections. “The only things these people have in common is that they are Sunni Muslim,” the former official said. “The study was limited to Sunni Muslims, so that’s not a finding — that’s the design of the study.” Even if the report were one of many group-focused reports, the limited data used in the study effectively bakes in bias against Sunni Muslims on a broad scale because its findings don’t narrow the population significantly, said Margo Schlanger, a professor of law at the University of Michigan, who reviewed the study. “They’re saying we can use their demographics to identify at-risk people, but the demographics they identify are all over the map: citizens and noncitizens, native and naturalized, Middle Eastern, African, and South Asian,” said Schlanger, who served as the DHS officer for civil rights and civil liberties during the Barack Obama administration. “So it basically concludes that everybody who is Sunni Muslim needs extra scrutiny.” The CBP recommendations wouldn’t be the first proposal to enhance the ongoing monitoring of foreigners in the last year, since U.S. Immigration and Customs Enforcement (ICE) announced plans to build an “extreme vetting” data-mining program to continuously monitor a select group of high-risk visa holders. CBP’s vetting report differs from ICE’s recent vetting proposals, however, in that it focuses exclusively on Sunni Muslims and also has far-reaching implications for permanent residents and potentially even U.S. citizens. According to the report, Sunni Muslim residents identified by these metrics as having a “higher risk of becoming radicalized” would face more intensive evaluations from immigration authorities when applying for visas, benefits, or travel. “CBP would use this kind of analysis to tighten their risk algorithms,” said John Sandweg, the former acting director of ICE and general counsel at DHS, told FP. “A lot of the recurring vetting CBP does is electronic vetting, running you against all their databases to see if there’s been any derogatory information to flag you for, or reviewing social media to check for things related to terrorism.” http://foreignpolicy.com/2018/02/05/draft-dhs-report-surveillance-of-muslim-immigrants/ 3/6 2/7/2018 Draft DHS Report Called forDocument Long-Term Surveillance of Sunni02/08/18 Muslim Immigrants – Foreign Policy Case 2:17-cv-00094-RAJ 112 Filed Page 82 of 218 But Sandweg said the assessment might not, on its own, imply unfair policies. This kind of report “wouldn’t be uncommon” for CBP’s Office of Intelligence to do. “There are a lot of issues as to how you do this targeting — age-based, country of origin-based are certainly things that have to be looked at.” Others, however, feel the risk classification analysis is unusual in that it seems to target specifically Sunni Muslim immigrants. “The primary threat we face today comes from people who are born here,” said John Cohen, the former acting undersecretary for intelligence and analysis at DHS, adding that the focus on those in the United States legally and who are not involved in criminal activity is a misuse of enforcement resources. “And disclosing that you are doing that will further erode the relationship between law enforcement and community members.” Legal advocates say the report is another signal of the administration’s overt antiMuslim stance. “This is definitely troubling. This is really racial profiling,” said Abed Ayoub, the national legal and policy director of the American-Arab Anti-Discrimination Committee. “It’s continuing to ignore the real threat in this country, and that’s white supremacists and their agenda.” Sharifa Abbasi, an immigration lawyer, said the report suggests that DHS may be seeking to reinstitute programs like the George W. Bush administration’s National Security Entry-Exit Registration System, which registered noncitizen visa holders almost exclusively from Muslim-majority countries. “It’s not like Muslims have not been subjected to this before,” Abbasi said. “It’s a way for this administration to vilify certain ethnicities in support of their white nationalist agenda.” The former senior DHS official, who expressed concerns about the sweeping classifications used in the report, said the assessment and its recommendations appear to reflect the broader policy goals of the Trump administration. “When your immigration policy is formulated by Stephen Miller and Katie Gorka,” said the former official, referring to two senior Trump appointees known for attacking Muslim immigrants, “this is where governmental radicalization and overreach by departments becomes particularly odious.” http://foreignpolicy.com/2018/02/05/draft-dhs-report-surveillance-of-muslim-immigrants/ 4/6 2/7/2018 Draft DHS Report Called forDocument Long-Term Surveillance of Sunni02/08/18 Muslim Immigrants – Foreign Policy Case 2:17-cv-00094-RAJ 112 Filed Page 83 of 218 Bethany Allen-Ebrahimian and Martin de Bourmont contributed reporting to this article. http://foreignpolicy.com/2018/02/05/draft-dhs-report-surveillance-of-muslim-immigrants/ 5/6 2/7/2018 Draft DHS Report Called forDocument Long-Term Surveillance of Sunni02/08/18 Muslim Immigrants – Foreign Policy Case 2:17-cv-00094-RAJ 112 Filed Page 84 of 218 George Joseph is a criminal justice, immigration, and national security reporter. TAGS: BORDERS, HOMELAND SECURITY, MIGRATION/IMMIGRATION http://foreignpolicy.com/2018/02/05/draft-dhs-report-surveillance-of-muslim-immigrants/ SHOW COMMENTS 6/6 Case Document 112 Filed 02/08/18 Page 85 of 218 EXHIBIT 2/7/2018 Extreme Digital Vetting of Visitors U.S. Moves… — ProPublica Case 2:17-cv-00094-RAJ Document 112to theFiled 02/08/18 Page 86 of 218 Donate TOPICS ▼ SERIES ▼ ABOUT MORE ▼ Extreme Digital Vetting of Visitors to the U.S. Moves Forward Under a New Name ICE o icials have invited tech companies, including Microsoft, to develop algorithms that will track visa holders’ social media activity. by George Joseph, Nov. 22, 2017, 8 a.m. EST U.S. Immigration and Customs Enforcement agents at an ICE center in Camarillo, California, in 2015 (John Moore/Getty Images) The Department of Immigration & Customs Enforcement is taking new steps in its plans for monitoring the social media accounts of applicants and holders of U.S. visas. At a tech industry https://www.propublica.org/article/extreme-digital-vetting-of-visitors-to-the-u-s-moves-forward-under-a-new-name 1/8 Extreme Digital Vetting of Visitors U.S. Moves… — ProPublica Case 2:17-cv-00094-RAJ Document 112to theFiled 02/08/18 Page 87 of 218 conference last Thursday in Arlington, Virginia, ICE officials explained to software providers what they are seeking: algorithms that would assess potential threats posed by visa holders in the United States and conduct ongoing social media surveillance of those deemed high risk. 2/7/2018 The comments provide the first clear blueprint for ICE’s proposed augmentation of its visa-vetting program. The initial announcement of the plans this summer, viewed as part of President Donald Trump’s calls for the “extreme vetting” of visitors from Muslim countries, stoked a public outcry from immigrants and civil liberties advocates. They argued that such a plan would discriminate against Muslim visitors and potentially place a huge number of individuals under watch. ICE officials subsequently changed the program’s name to “Visa Lifecycle Vetting.” But, according to the ICE presentation, the goal of the initiative — enhanced monitoring of visa holders using social media — remains the same. Speaking to a room of information-technology contractors, hosted by the Government Technology & Services Coalition, Louis Rodi, deputy assistant director of ICE Homeland Security Investigations’ National Security Program, said the agency needs a tool equipped with “risk-based matrices” to predict dangers posed by visa holders, with the social media of those considered a threat under continuous surveillance throughout their stay in the U.S. “We have millions and millions and millions of people coming every year, and subsequently departing, so we have to be smart about it,” said Rodi to a room of representatives from companies like Microsoft, Accenture, Deloitte and Motorola Solutions. “And I’m sure there are tools out there that can help.” For this targeted group of visa holders, ICE’s online monitoring of public social media posts would be large-scale and non-stop. “Everything we’re dealing with is in bulk, so we need batch-vetting capabilities for any of the processes that we have,” said Rodi. Alysa Erichs, ICE Homeland Security Investigations’ acting deputy association director for information management, told attendees that ICE hopes to get automated notifications about any visa holders’ social media activity that could “ping us as a potential alert.” ICE spokeswoman Carissa Cutrell stressed to ProPublica that the Department of Homeland Security has not actually begun building any such program. “The request for information on this initiative was simply that — an opportunity to gather information from industry professionals and other government agencies on current technological capabilities to determine the best way forward,” Cutrell wrote in an email. The program would require clearance from numerous DHS units, including the Privacy Office and the Principal Legal Advisor, before it could be implemented, according to a federal official who spoke on the condition of anonymity. In his speech, Rodi referred to meetings ICE has had with companies but did not mention any frontrunners. The major tech companies present at the conference, including Microsoft, Accenture and Deloitte, either declined to comment or didn’t respond to ProPublica’s request to comment https://www.propublica.org/article/extreme-digital-vetting-of-visitors-to-the-u-s-moves-forward-under-a-new-name 2/8 Extreme Digital Vetting of Visitors U.S. Moves… — ProPublica Case 2:17-cv-00094-RAJ Document 112to theFiled 02/08/18 Page 88 of 218 about their level of interest in providing technology for the vetting program. Microsoft has opposed Trump’s immigration policies, and several Microsoft researchers have publicly called for ICE to stop spying on visitors’ social media. 2/7/2018 ICE is already monitoring some social media at eight Homeland Security Investigation posts internationally, Rodi said, and the plan is to expand to more sites. In response to a question posed by ProPublica from the audience, he stated that the department was open to other social media monitoring techniques, such as link analysis (which helps authorities map out applicants’ online connections), so long as they solely rely on public posts. The ICE officials emphasized the Trump administration’s strict stance. “This administration is big on immigration enforcement, so we’re not going to look the other way like we have in the past when we have overstays,” said Rodi. “Maybe it’s an administrative violation — it’s still a crime. These people need to pay. They can’t get away with it.” Some analysts argue that gathering social media data is necessary. ICE already has a tool that searches for connections to terrorists, according to Claude Arnold, a former ICE Homeland Security Investigations special agent, now with the security firm Frontier Solutions. But, he said, potential terrorist threats often come from countries, such as Iraq or Syria, that provide little intelligence to U.S. authorities. As a result, in Arnold’s view, social media information is all the more important. Privacy advocates take a darker view. “ICE is building a dangerously broad tool that could be used to justify excluding, or deporting, almost anyone,” said Alvaro Bedoya, executive director of Georgetown Law’s Center on Privacy & Technology. “They are talking about this as a targeted tool, but the numbers tell a different story.” Bedoya noted that the program outline originally anticipated that the monitoring would identify 10,000 high-risk visa holders a year. That suggests the pool of people under social media surveillance would be many orders of magnitude larger. (ICE officials did not address this point at the conference.) Relatives of Undocumented Children Caught Up in ICE Dragnet In a shift from how it operated during the Obama administration, Immigration and Customs Enforcement is cracking down on relatives who let undocumented kids stay with them after entering the U.S. Last week, a coalition of academics and technologists warned in a public letter that ICE’s interest in using big data algorithms to assess risk is misguided, given how rare it is for foreign visitors to be involved in terrorist attacks in the U.S. That means there’s little historical data to mine in hopes of using it to design a new algorithm. The letter cited a Cato Institute analysis that found that the likelihood of an https://www.propublica.org/article/extreme-digital-vetting-of-visitors-to-the-u-s-moves-forward-under-a-new-name 3/8 Extreme Digital Vetting of Visitors U.S. Moves… — ProPublica Case 2:17-cv-00094-RAJ Document 112to theFiled 02/08/18 Page 89 of 218 He Was About To Pick Up His Newborn Son After American dying in a terrorist attack on U.S. soil in Surgery When He Was Arrested By ICE any given year was 1 in 3.6 million in the period The case of Oscar Millan shows ICE’s renewed focus on between 1975 and 2015. strict immigration enforcement. Under the Obama 2/7/2018 administration, agents had discretion in cases of immigrants with gravely sick children. Cathy O’Neil, one of the signatories to that letter and author of “Weapons of Math Destruction,” told this reporter in August that any algorithm a company proposes would come built-in with some very human calculations. “At the end of the day, someone has to choose a ratio,” she said. “How many innocent false positives are you going to keep out of the country for each false negative?” Thus far, social media monitoring of visa applicants has not identified any potential threats that wouldn’t have turned up in existing government databases, Rodi acknowledged. “We haven’t found anything that would preclude someone from getting a visa through social media alone,” he said. “But, you never know, the day may come when social media will actually find someone that wasn’t in the government systems we check.” That argument doesn’t placate those who believe ICE’s vetting is already exhaustive. Social media surveillance would be difficult to carry out without collecting collateral data on thousands of American citizens in the process, said Rachel Levinson-Waldman, senior counsel to the Brennan Center’s Liberty and National Security Program. “Generally, with surveillance technologies, they are adopted for national security purposes overseas, but are then brought stateside pretty quickly,” she said, citing practices first honed overseas, such as intercepting cellphone calls. “So once there’s some kind of dragnet surveillance tool or information collection tool in place for one purpose, slippage can happen, and it will expand and expand.” Filed under: Immigration, The Trump Administration Like this story? Get our top stories by email. Email Subscribe George Joseph George Joseph was a reporter focusing on immigration, law enforcement and the use of “big data” in criminal justice systems. Beyond ProPublica, his work has appeared in outlets such as The Guardian, The Atlantic, The Intercept and CityLab. https://www.propublica.org/article/extreme-digital-vetting-of-visitors-to-the-u-s-moves-forward-under-a-new-name 4/8 Extreme Digital Vetting of Visitors U.S. Moves… — ProPublica Case 2:17-cv-00094-RAJ Document 112to theFiled 02/08/18 Page 90 of 218 2/7/2018 george.joseph@propublica.org @georgejoseph94 × Comments for this thread are now closed. 13 Comments ProPublica Recommend 49 ⤤ Share 1 Login Sort by Best − This comment was deleted. joe blow > Guest • 2 months ago − ⚑ Melanoma got away with it and now all she has to do is wait a few months until her evil husband is locked up or a few years more until he dies from a heart attack, unless he's hanged for treason first. △ ▽ • Share › Bordo de Xochiaca • 2 months ago − ⚑ − ⚑ − ⚑ − ⚑ Thanks ICE for teaching us to cross customs whit lies. △ ▽ • Share › rg9rts • 3 months ago They would be disappointed with me...I can't be bothered with social media △ ▽ • Share › chris n • 3 months ago 9/11 hijackers missed a spot--silicon valley ICE agents should be shot at whenever and wherever they appear. subhuman scum △ ▽ • Share › Nungman > chris n • 3 months ago Man, you've GOTTA be FBI. Happy trollin'! https://www.propublica.org/article/extreme-digital-vetting-of-visitors-to-the-u-s-moves-forward-under-a-new-name 5/8 2/7/2018 Extreme Digital Vetting of Visitors U.S. Moves… — ProPublica Case 2:17-cv-00094-RAJ Document 112to theFiled 02/08/18 Page 91 of 218 △ ▽ • Share › chris n > Nungman • 3 months ago − ⚑ − ⚑ you've GOTTA be a smug liberal coward there's not a nonviolent way out of this △ ▽ • Share › Nungman > chris n • 2 months ago A way out of what? You're either looking to attract the anti-government crazies, or...you're one of them! 1△ ▽ • Share › Jacintho Leite Aquino Rego > Nungman • 2 months ago − ⚑ − ⚑ − ⚑ LOL! △ ▽ • Share › chris n > Nungman • 2 months ago yeah hating ICE is a right-wing position great stuff, champ △ ▽ • Share › Nungman > chris n • 2 months ago Neither left nor right, just demented. What has ICE ever done to make anyone hate them so? Did they deport your "husband"? △ ▽ • Share › chris n > Nungman • 2 months ago − ⚑ − ⚑ ICE are monsters. their function is base and evil. not at all complicated nice homophobic zinger △ ▽ • Share › Nungman > chris n • 2 months ago Nice paranoid rant. btw: this; "." goes at the end of a sentence. Don't get the panties in a bunch. He would have been out the door as soon as he got the G. G. C. (Gay Green Card), anyway. [Now that there's gay marriage, there's SHAM gay marriage, I guess. But with ICE on the job, not many get away with it.] 1△ ▽ • Share › vcragain • 3 months ago − ⚑ I have a green card - I got pulled out of the input line at Kennedy on 2 occasions - I'm probably the least likely human to be dangerous to any other human, so I have no idea why they decided I needed to be 'investigated' they kept me sitting there for about 2 hours while they were obviously reading everything https://www.propublica.org/article/extreme-digital-vetting-of-visitors-to-the-u-s-moves-forward-under-a-new-name 6/8 2/7/2018 Extreme Digital Vetting of Visitors U.S. Moves… — ProPublica Case 2:17-cv-00094-RAJ Document 112to theFiled 02/08/18 Page 92 of 218 investigated , they kept me sitting there for about 2 hours while they were obviously reading everything I had ever written anywhere ! At least the last time thru that didn't happen ! It's a bit scary though. △ ▽ • Share › OUR LATEST STORIES Coming From ProPublica and WNYC: ‘Trump, Inc.,’ the Podcast Introducing ‘Trump, Inc.,’ a Podcast on the Many Mysteries of Our President’s Businesses Judge Dismisses Libel Suit Involving ProPublica Article Florida Bill Seeks to Stop Arrests of Injured Immigrant Workers SITES https://www.propublica.org/article/extreme-digital-vetting-of-visitors-to-the-u-s-moves-forward-under-a-new-name 7/8 2/7/2018 Extreme Digital Vetting of Visitors U.S. Moves… — ProPublica Case 2:17-cv-00094-RAJ Document 112to theFiled 02/08/18 Page 93 of 218 SECTIONS INFO POLICIES FOLLOW MORE o ub ca Journalism in the Public Interest © Copyright 2018 Pro Publica Inc. https://www.propublica.org/article/extreme-digital-vetting-of-visitors-to-the-u-s-moves-forward-under-a-new-name 8/8 Case Document 112 Filed 02/08/18 Page 94 of 218 EXHIBIT I Case 2:17-cv-00094-RAJ Document 112 Filed 02/08/18 Page 95 of 218 E e i e Or er 13 80 Protecting the Nation From Foreign Terrorist Entry Into the United States Ini i Se ion 11 Re or January 2018 Case 2:17-cv-00094-RAJ Document 112 Filed 02/08/18 Page 96 of 218 I. In ro ion On March 6, 2017, President Donald J. Trump issued Executive Order 13780, Protecting the Nation from Foreign Terrorist Entry into the United States, which declared that “it is the policy of the United States to protect its citizens from terrorist attacks, including those committed by foreign nationals,” and directed a series of actions to enhance the security of the American people. The actions directed by Executive Order 13780 have among other things raised the baseline for the vetting and screening of foreign nationals, improved our ability to prevent the entry of malicious actors, and enhanced the security of the American people. Most of the critical national security enhancements implemented and effectuated as a result of Executive Order 13780 are classified in nature, and will remain so to prevent malicious actors from exploiting our immigration system. However, to “be more transparent with the American people and to implement more effectively policies and practices that serve the national interest,” Section 11 of Executive Order 13780 requires the Secretary of Homeland Security, in consultation with the Attorney General, to collect and make publicly available the following information: (i) Information regarding the number of foreign nationals in the United States who have been charged with terrorism-related offenses while in the United States convicted of terrorism-related offenses while in the United States or removed from the United States based on terrorism-related activity, affiliation with or provision of material support to a terrorism-related organization, or any other nationalsecurity-related reasons (ii) Information regarding the number of foreign nationals in the United States who have been radicalized after entry into the United States and who have engaged in terrorism-related acts, or who have provided material support to terrorism-related organizations in countries that pose a threat to the United States (iii) Information regarding the number and types of acts of gender-based violence against women, including so-called “honor killings,” in the United States by foreign nationals and, (iv) Any other information relevant to public safety and security as determined by the Secretary of Homeland Security or the Attorney General, including information on the immigration status of foreign nationals charged with major offenses. Accordingly, subsequent to the issuance of Executive Order 13780, the Department of Homeland Security (DHS) and the Department of Justice (DOJ) worked collaboratively to provide information responsive to the requirements of Section 11. Unless specified otherwise, this initial report includes information for the period from September 11, 2001 until the date of issuance. Notably, however, because of previous information collection and reporting practices of DHS and DOJ, some of the information provided in this initial report does not capture the full spectrum of statistics envisioned by Executive Order 13780. DHS and DOJ will endeavor to provide additional information in future reports issued pursuant to the requirements of Executive Order 13780. 1 Case 2:17-cv-00094-RAJ Document 112 Filed 02/08/18 Page 97 of 218 II. In or ion Res onsi e o Se ion 11 a. Information Regarding the Number of Foreign Nationals Charged with or Convicted of Terrorism-Related Offenses, or Removed from the United States Based on Terrorism-Related or Other National Security Reasons. According to a list maintained by DOJ’s National Security Division, at least 549 individuals were convicted of international terrorism-related charges in U.S. federal courts between September 11, 2001, and December 31, 2016. An analysis conducted by DHS determined that approximately 73 percent (402 of these 549 individuals) were foreign-born. Breaking down the 549 individuals by citizenship status at the time of their respective convictions reveals that: 254 were not U.S. citizens 148 were foreign-born, naturalized and received U.S. citizenship and, 147 were U.S. citizens by birth.1 Information pertaining to individuals convicted of international terrorism-related offenses after December 31, 2016, as well as information pertaining to individuals not yet convicted but facing charges for international terrorism-related offenses will be provided in future reports required by Section 11. The conviction information outlined above is based on public convictions in federal courts between September 11, 2001, and December 31, 2016 resulting from international terrorism investigations, including investigations of terrorist acts planned or committed outside the territorial jurisdiction of the United States over which Federal criminal jurisdiction exists and those within the United States involving international terrorists and terrorist groups. This information reflects defendants convicted in cases involving charged violations of federal statutes that are directly related to international terrorism,2 as well as defendants convicted in cases involving charged violations of a variety of other statutes where the investigation involved an identified link to international terrorism.3 This information includes both individuals who committed offenses while located in the United States and those who committed offenses while located abroad, including defendants who were transported to the United States for prosecution. It does not include individuals convicted of offenses relating to domestic terrorism, nor does it include information related to terrorism-related convictions in state courts. In future reports, DHS and DOJ will endeavor to provide additional details pertaining to foreign nationals or naturalized U.S. citizens convicted of international terrorism-related offenses, such as their manner of entry into the United States, countries of origin, general immigration histories, and other related information. While DHS and DOJ do not yet have complete, final 1 Information pertaining to the citizenship status of the parents of these 147 individuals was not available at the time of this report’s issuance. 2 These statutes prohibit, for example, terrorist acts abroad against United States nationals, the use of weapons of mass destruction, conspiracy to murder persons overseas, providing material support to terrorists or foreign terrorist organizations, receiving military style training from foreign terrorist organizations, and bombings of public places or government facilities. 3 For example, these cases could include offenses such as those involving fraud, immigration, firearms, drugs, false statements, perjury, and obstruction of justice, as well as general conspiracy charges. 2 Case 2:17-cv-00094-RAJ Document 112 Filed 02/08/18 Page 98 of 218 information about these individuals available at the time of this report’s publication, the following are illustrative examples among the 402 convictions of foreign nationals or naturalized U.S. citizens: M o A in Mo e E ss n, a national of Sudan, was admitted to the United States in 2012 as a family member of a lawful permanent resident from Sudan. In 2016, he pleaded guilty to attempting to provide material support to ISIS, and in 2017 was subsequently sentenced to 11 years in prison.4 According to court documents, Elhassan aided and abetted the attempt of Joseph Hassan Farrokh, 29, to travel from the United States to Syria in order to fight on behalf of ISIS. As part of their plan, Farrokh would travel first, followed by Elhassan at a later date. Farrokh and Elhassan spoke in detail about their potential travel. Both men spoke openly with each other about supporting ISIS and violent jihad, with Farrokh saying on October 2, 2015, that he had no patience and wanted to go right away and “chop their heads.” According to the statement of facts, in an effort to conceal their plans to support ISIS, Farrokh and Elhassan communicated using apps they believed were safe from law enforcement detection. In the summer of 2015, Farrokh and Elhassan talked more seriously about going to join ISIS and concluded that they needed someone to help them do so. Elhassan contacted like-minded people all over the world and the men pursued two separate plans to travel to Syria to join ISIS. According to the statement of facts, Farrokh and Elhassan conspired with other persons they believed would help facilitate their travel to Syria. Over the course of many meetings, the men discussed in detail their travel plans and efforts to avoid law enforcement detection, including Farrokh shaving his beard and flying out of Richmond International Airport, where they believed there would be less security. Farrokh and Elhassan agreed that Farrokh should tell his family that he intended to travel to Saudi Arabia to study. A r s H s no i J r oe , a national of Uzbekistan, was admitted to the United States as a diversity visa lottery recipient in 2011. In 2015, he pleaded guilty to conspiring to support ISIS, and in 2017 was subsequently sentenced to 15 years in prison.5 According to court documents, Juraboev posted a threat on an Uzbek-language website to kill President Obama in an act of martyrdom on behalf of ISIS. In subsequent interviews by federal agents, Juraboev stated his belief in ISIS’s terrorist agenda, including the establishment by force of an Islamic caliphate in Iraq and Syria. Juraboev stated that he wanted to travel to Syria to fight on behalf of 4 Virginia Man Sentenced to 11 Years in Prison for Attempting to Provide Material Support to ISIL, THE UNITED STATES DEPARTMENT OF JUSTICE (2017), https://www.justice.gov/opa/pr/virginia-man-sentenced-11-years-prisonattempting-provide-material-support-isil. 5 Brooklyn Man Sentenced to 15 Years in Prison for Conspiring to Provide Material Support to Terrorists, THE UNITED STATES DEPARTMENT OF JUSTICE (2016), https://www.justice.gov/usao-edny/pr/brooklyn-man-sentenced15-years-prison-conspiring-provide-material-support-terrorists. 3 Case 2:17-cv-00094-RAJ Document 112 Filed 02/08/18 Page 99 of 218 ISIS but lacked the means to travel. He added that, if he were unable to travel, he would engage in an act of martyrdom on U.S. soil if ordered to do so by ISIS, such as killing the President or planting a bomb on Coney Island. During the next several months, Juraboev and a co-conspirator discussed plans to travel to Syria to fight on behalf of ISIS, culminating in Juraboev’s purchase on December 27, 2014, of a ticket to travel from John F. Kennedy International Airport in Queens, New York, to Istanbul, Turkey, departing on March 29, 2015. A in ssir Mo I r i , a national of Somalia, was admitted to the United States as a refugee in 2007. In 2015, he was sentenced to 15 years in prison for conspiring to provide material support to Al-Shabaab, a designated foreign terrorist organization, and for making a false statement in an immigration matter.6 Ibrahim admitted that from about May 18, 2010, to about January 31, 2014, he knowingly conspired to provide material support and resources, specifically sending emails enlisting support for al-Shabaab and making a cash payment to a known member of al-Shabaab for the benefit of the organization. Ibrahim knew at the time that al-Shabaab was designated by the United States as a foreign terrorist organization. Ibrahim also pleaded guilty to making a false statement in an immigration matter. According to court documents, Ibrahim lied in his application for naturalization as he had previously lied on his request for refugee status, falsely claiming that he was of a member of a minority group in Somalia and suffered persecution as a result thereof. Ibrahim also admitted he had lied on his naturalization application by having previously lied on his refugee application by falsely claiming that he had not provided material support to a terrorist group, when he had in fact provided monetary support to a member of a terrorist organization. Mo S ee Ko i i, a national of Syria, was admitted to the United States in 2001 as a family member of a lawful permanent resident from Syria, and subsequently obtained United States citizenship through naturalization. Kodaimati entered the United States with the family member. That family member was previously admitted as the unmarried son or daughter of a lawful permanent resident, who earlier received status as the parent of a United States citizen. In 2016, Kodaimati was sentenced to 96 months in prison for making false statements in a terrorism investigation.7 As part of his guilty plea, Kodaimati acknowledged that he lied in March 2015 when he stated that he did not know any members of Islamic State in Iraq, a designated foreign terrorist organization known as ISIS that he falsely claimed that while in Syria he was never involved with Al Nusrah, also a foreign terrorist 6 Somali Citizen Sentenced to 15 Years in Federal Prison for Conspiring to Provide Material Support to AlShabaab, THE UNITED STATES DEPARTMENT OF JUSTICE (2015), https://www.justice.gov/usao-wdtx/pr/somalicitizen-sentenced-15-years-federal-prison-conspiring-provide-material-support-al. 7 San Diego Man Sentenced to 96 months in Prison for Making False Statements in an International Terrorism Investigation, THE UNITED STATES DEPARTMENT OF JUSTICE (2016), https://www.justice.gov/usao-sdca/pr/sandiego-man-sentenced-96-months-prison-making-false-statements-international. 4 Case 2:17-cv-00094-RAJ Document 112 Filed 02/08/18 Page 100 of 218 organization and that he again lied when he said that while in Syria he had never engaged in combat or fired a weapon at anyone. In his plea agreement, Kodaimati admitted that he knew a member of ISIS and that while in Syria he participated in a battle against the Syrian regime, including shooting at others, in coordination with Al Nusrah fighters. A i S kri A in, a national of Sudan, was admitted to the United States in 1999 as the child of a diversity visa lottery recipient, and subsequently obtained United States citizenship through naturalization. In 2015, he was sentenced to more than 11 years in prison for conspiring to provide material support and resources to ISIS.8 According to court documents, Amin admitted to using Twitter to provide advice and encouragement to ISIS and its supporters. Amin provided instruction on how to use Bitcoin, a virtual currency, to mask the provision of funds to ISIS, as well as facilitating ISIS supporters seeking to travel to Syria to fight with ISIS. Additionally, Amin admitted that he assisted an 18-year-old male resident of Virginia, Reza Niknejad, to travel to Syria to join ISIS in January 2015. Niknejad was subsequently charged with conspiring to provide material support to terrorists, conspiring to provide material support to ISIS, and conspiring to kill and injure persons abroad. K ee A e , a national of India, was admitted to the United States in 1998 as a family member of a naturalized United States citizen from India. Ahmed subsequently became a United States citizen through naturalization. In 2010, he was sentenced to more than eight years in prison for conspiring to provide material support to terrorists.9 According to court documents, the criminal conspiracy involving Khaleel Ahmed and his cousin, ubair, began no later than April 1, 2004, and continued until their arrests on February 21, 2007. As part of the conspiracy, the defendants made preparations to travel overseas in order to engage in acts that would result in the murder or maiming of U.S. military forces in either Iraq or Afghanistan. On or about May 21, 2004, the defendants traveled to Cairo, Egypt, with the intent of engaging in acts that would result in the murder or maiming of U.S. military forces in Iraq or Afghanistan. Furthermore, ubair and Khaleel Ahmed researched the purchase of firearms, methods of obtaining firearms instruction (including at least one visit to a firing range) and methods of obtaining instruction in gunsmithing. In addition, the defendants collected videos of attacks on U.S. military forces overseas, manuals on military tactics and military manuals on weaponry. 8 Virginia Man Sentenced to More Than 11 Years for Providing Material Support to ISIL, THE UNITED STATES DEPARTMENT OF JUSTICE (2015), https://www.justice.gov/opa/pr/virginia-man-sentenced-more-11-years-providingmaterial-support-isil. 9 ubair and Khaleel Ahmed Sentenced for Providing Material Support to Terrorists, THE FEDERAL BUREAU OF INVESTIGATION (2010), https://archives.fbi.gov/archives/cleveland/press-releases/2010/cl071210.htm. 5 Case 2:17-cv-00094-RAJ Document 112 Filed 02/08/18 Page 101 of 218 M i E ee , a national of Yemen, was admitted to the United States in 1997 as a family member of a naturalized United States citizen from Yemen. Elfgeeh subsequently became a United States citizen through naturalization. The petitioning family member originally entered the United States in 1966 under the immigration classification P-51 (no longer used), as the sibling of a United States citizen over the age of 21. In 2016, Elfgeeh was sentenced to more than 22 years in prison for attempting to recruit fighters for ISIS.10 According to court documents, from December 2013 through May 31, 2014, Elfgeeh actively recruited and attempted to send two individuals – both of whom were cooperating with the FBI at the time – to Syria to join and fight on behalf of ISIS. Additionally, Elfgeeh also sent 600 to a third individual in Aden, Yemen, in an effort to assist that individual in traveling from Yemen to Syria for the purpose of joining and fighting on behalf of ISIS. In March 2014, Elfgeeh communicated with a Syrian national alleged to be the military commander of the Green Battalion of the United Rebels of Homs-AlMurabitun, a group of fighters located in Homs, Syria. At the time, the battalion was blockaded in Homs and needed military support, including ammunition, mortar shells and explosives that could penetrate armored vehicles, to break out. Elfgeeh facilitated communication and coordination between the battalion commander and ISIS leadership for the purpose of the commander and his battalion pledging their allegiance to and joining ISIS. During the course of his criminal conduct, Elfgeeh used social media to receive and disseminate information about foreign terrorist groups and their activities in Syria and other countries to declare his support for violent jihad, ISIS and other foreign terrorist groups to inspire and encourage others to engage in violent jihad and/or pledge allegiance to ISIS and other foreign terrorist groups and to seek financial contributions to assist jihadist fighters. U ir P r , a national of Pakistan, was admitted to the United States in 1980 as a family member of a lawful permanent resident from Pakistan. In 2006, he was sentenced to 30 years in federal prison for providing material support to al Qaeda.11 The evidence at trial proved that Paracha agreed with his father, Saifullah Paracha, and two al Qaeda members, Majid Khan and Ammar Al-Baluchi, to provide support to al Qaeda by, among other things, trying to help Khan obtain a travel document that would have allowed Khan to re-enter the United States to commit a terrorist act. Statements from Khan admitted at trial revealed that, once inside the United States, Khan intended to carry out an attack on gasoline stations. In February and March 2003, Paracha posed as Khan during telephone calls with the former 10 New York Man Sentenced to Over 22 Years in Prison for Attempting to Recruit Fighters for ISIL, THE UNITED STATES DEPARTMENT OF JUSTICE (2016), https://www.justice.gov/opa/pr/new-york-man-sentenced-over-22-yearsprison-attempting-recruit-fighters-isil. 11 Pakistani Man Convicted of Providing Material Support to al Qaeda Sentenced to 30 Years in Federal Prison, THE UNITED STATES DEPARTMENT OF JUSTICE, UNITED STATES ATTORNEY FOR THE SOUTHERN DISTRICT OF NEW YORK (2006), https://www.justice.gov/archive/usao/nys/pressreleases/July06/parachasentencingpr.pdf. 6 Case 2:17-cv-00094-RAJ Document 112 Filed 02/08/18 Page 102 of 218 Immigration and Naturalization Service (now Immigration and Customs Enforcement), called Khan’s bank, and attempted to gather information about Khan’s immigration paperwork via the Internet. Paracha also agreed to use Khan’s credit card to make it appear that Khan was in the United States, when in fact Khan was in Pakistan. Paracha and his father had discussed with Khan and Al-Baluchi the possibility of the Parachas receiving up to 200,000 from al Qaeda in connection with the assistance Paracha was providing to Khan, which the Paracha hoped to invest in their businesses. While DOJ is responsible for prosecuting international terrorism-related offenses in the federal courts, not all cases involving foreign nationals with a nexus to terrorism are suitable for criminal prosecution. In certain instances, the removal of an individual from the United States may be the most effective way to fulfill the national security interests of the United States.12 According to information available to the United States Immigration and Customs Enforcement (ICE), since September 11, 2001, there were approximately 1,716 removals of aliens with national security concerns. This number includes, but is not limited to, aliens suspected of being involved in terrorist or other security-related activities including aliens described in sections 212(a)(3) or 237(a)(4) of the Immigration and Nationality Act, 8 U.S.C. 1182(a)(3), 1227(a)(4), and aliens for whom ICE was made aware of sensitive national security information. b. Information Regarding the Number of Foreign Nationals in the United States Who Have Been Radicalized After Entry into the United States and Who Have Engaged in Terrorism-Related Acts, or Who Have Provided Material Support to TerrorismRelated Organizations in Countries That Pose a Threat to the United States. As of the date of this report’s issuance, DHS and DOJ lack unclassified, aggregated statistical information pertaining to the timing of individual radicalization. DHS and DOJ will endeavor to provide greater clarity on the percentage of individuals who appear to have radicalized to violence after their entry into the United States. Additionally, for purposes of advancing terrorism prevention activities, DHS and DOJ will continue to explore the timing and trends related to the radicalization of such individuals. c. Information Regarding the Number and Types of Acts of Gender-Based Violence Against Women, Including So-Called “Honor Killings,” in the United States by Foreign Nationals. According to the Bureau of Justice Statistics, between 2006 and 2015, there were approximately 1.3 million non-fatal domestic violence victimizations each year.13 It is unclear how many were perpetrated by foreign nationals because the federal government has not recorded and tracked in an aggregated statistical manner information pertaining to gender-based violence against women committed at the federal and state level. Such offenses are overwhelmingly prosecuted at the state level, and most states currently do not track crimes in their 12 Some individuals convicted on terrorism-related charges in the United States have since served their sentences and been released, and a portion of those were aliens who were subsequently removed. In future Section 11 reports, DHS and DOJ will work to provide a breakdown of these figures. 13 U.S. Dep’t of Justice, Office of Justice Programs, Bureau of Justice Statistics, Special Report: Police Response to Domestic Violence 2006-2015 (2017), available at https://www.bjs.gov/content/pub/pdf/prdv0615.pdf. 7 Case 2:17-cv-00094-RAJ Document 112 Filed 02/08/18 Page 103 of 218 jurisdictions based on the immigration status of the offender. DHS and DOJ will work to obtain and aggregate information responsive to this requirement of Section 11. There is no federal statute specifically prohibiting “honor killings” and the federal government lacks comprehensive data regarding incidents of such offenses at the state and local levels. Although the federal government lacks independent data regarding incidents of honor killings, a study commissioned and provided to the DOJ’s Bureau of Justice Statistics in 2014 estimated that an average of 23-27 honor killings occur every year in the United States. Based on a representative sample studied through open media sources, 91 percent of the victims in honor killings in North America were murdered for being “too westernized.”14 The study further estimated that approximately 1,500 forced marriages occur every year in the United States. Additional information is also publicly available regarding incidents of gender-based violence against women which can occur in contexts other than so-called “honor killings,” such as sex offenses, and Female Genital Mutilation (FGM). Regarding sex offenses, the Government Accountability Office (GAO) in 2011 produced an estimate regarding the population of criminal aliens incarcerated in state prisons and local jails from fiscal years 2003 through 2009.15 In that report, GAO estimated that over that period, aliens were convicted for 69,929 sex offenses which, although not explicitly stated in the report, in most instances constitutes gender-based violence against women.16 FGM represents another form of gender-based violence against women, and is a federal criminal offense under 18 U.S.C. 116. It, too, constitutes another crime that has not been tracked in a statistically-aggregated manner at the state level, and is largely underreported. However, a study completed in 2016 by the Centers for Disease Control estimated that 513,000 women and girls in the United States were at risk for undergoing FGM or its consequences in 2012 a number three times higher than the number estimated at risk in 1990.17 It further noted that, although further research is necessary to gather scientifically valid data with respect to the practice in the United States, the estimated increase “was wholly a result of rapid growth in the number of immigrants from FGM/C-practicing countries living in the United States.” d. Any Other Information Relevant to Public Safety and Security as Determined by the Secretary of Homeland Security or the Attorney General, Including Information on the Immigration Status of Foreign Nationals Charged with Major Offenses. i. DHS Encounters with Known or Suspected Terrorists The United States faces a serious and persistent terror threat, and individuals with ties to terror can and will use any pathway to enter our country. Accordingly, DHS has taken significant 14 Cynthia Helba et al., Report on Exploratory Study into Honor Violence Measurement Methods (2014), available at https://www.ncjrs.gov/pdffiles1/bjs/grants/248879.pdf. 15 U.S. Gen. Accountability Office, GAO-11-187, Criminal Alien Statistics—Information on Incarcerations, Arrests, and Costs (2011), available at http://www.gao.gov/assets/320/316959.pdf. 16 Id. at 21. 17 Howard Goldberg et al., Female Genital Mutilation/Cutting in the United States: Updated Estimates of Women and Girls at Risk, 2012, 131 Public Health Reports 340–347 (2016), available at http://journals.sagepub.com/doi/pdf/10.1177/003335491613100218. 8 Case 2:17-cv-00094-RAJ Document 112 Filed 02/08/18 Page 104 of 218 steps to improve the security of all potential routes used by known or suspected terrorists (KST) to travel to the United States to ensure that individuals who would do harm to Americans are identified and detected, and their plots are disrupted. These figures reflect the challenges faced by the United States and demonstrate the necessity to remain vigilant and proactive in our counterterrorism posture. DHS is focused on keeping nefarious actors out of the United States, especially KSTs. During the course of any given year, the Department encounters thousands of terror-connected individuals attempting to reach our territory, whether by air, sea, or land. In the interest of transparency, DHS is producing recent figures detailing DHS encounters with KSTs. In fiscal year 2017, DHS had 2,554 encounters with individuals on the terrorist watchlist (also known as the FBI’s Terrorist Screening Database) traveling to the United States. Of those encounters, 335 were attempting to enter by land, 2,170 were attempting to enter by air, and 49 were attempting to enter by sea. Where consistent with the law, such individuals are denied entry into the United States, while in some cases law enforcement authorities are notified and can take appropriate action. This data only includes individuals of which the United States encountered and not all of those who may have entered or attempted to enter the country undetected. ii. Arrests and Removals of Aliens Convicted of Aggravated Felonies or Two or More Felonies DHS Components maintain a variety of statistics on foreign nationals charged with aggravated felonies18 to include drug trafficking offenses, national security crimes, and violent crimes such as murder, rape, robbery, and kidnapping. ICE statistics reflect that from October 1, 2011, to September 30, 2017, a total of 355,345 non-U.S. citizen offenders19 were arrested by ICE for purposes of removal20 after previously having been convicted of an aggravated felony, as defined in 8 U.S.C. 1101(a)(43), or two or more crimes each punishable by more than one year (felony offenses). During that same period, a total of 372,09821 non-U.S. citizen offenders were removed from the United States after conviction of an aggravated felony or two or more felonies. iii. Egregious Public Safety Referrals The United States Citizenship and Immigration Services (USCIS) and ICE work together as part of their unity of effort to expedite the removal of criminal aliens. Upon receiving a request by a foreign national for immigration-related benefits, USCIS’ Fraud Detection and National Security Directorate (FDNS) refers information to ICE that indicates a foreign national is under 18 See 8 U.S.C. 1101(a)(43). This number reflects only those aliens who ICE was able to identify and locate or encountered through enforcement operations. As a result of non-cooperation with ICE enforcement operations by some jurisdictions, a significant number of criminal aliens within this category were not identified and located or encountered by ICE and, as a consequence, were not included in this total. 20 This represents a combination of immigration-related and criminal violations. 21 This number reflects only those aliens who ICE was able to identify and locate or encountered through enforcement operations. As a result of non-cooperation with ICE enforcement operations by some jurisdictions, a significant number of criminal aliens within this category were not identified and located or encountered by ICE and, as a consequence, were not included in this total. 19 9 Case 2:17-cv-00094-RAJ Document 112 Filed 02/08/18 Page 105 of 218 investigation, has been arrested for (without disposition), or has been convicted of an egregious felony including, but not limited to: murder rape, firearms trafficking, child pornography, and other significant felonies. Data from USCIS’ FDNS Directorate shows that between 2007 and 2017, USCIS referred 45,858 foreign nationals who applied for immigration benefits to ICE for criminal or civil enforcement action, based on information indicating that such foreign nationals had committed egregious public safety-related offenses within the United States. iv. Foreign Nationals Denied Boarding on Flights Destined for the United States Finally, as published in the United States Customs and Border Protection’s (CBP) annual “Border Security Report,” the National Targeting Center (NTC), the Immigration Advisory Program (IAP), and the Regional Carrier Liaison Group (RCLG) led CBP efforts between FY 2010 and FY 2016 to identify and prevent the boarding of 73,261 foreign travelers on flights destined for the United States, who may have presented an immigration or security risk. CBP works with industry partners to ensure the safety of the traveling public. IAP employs CBP officers at foreign airports where they review passenger information and/or assess the passenger documentation prior to their U.S.-bound flights. IAP officers make “no board” recommendations to carriers and host governments regarding passengers bound for the United States. RCLGs located in Honolulu, Miami, and New York, expand the Nation’s zone of security beyond the physical U.S. borders by working with commercial carriers to prevent the boarding of passengers who may pose a security threat, have fraudulent travel documents, or are otherwise inadmissible to the United States. III. Con sion DHS and DOJ play a vital role in protecting the national security of the United States, especially against terror threats. DHS actively works to block known or suspected terrorists from entering the United States and is also focused on combating terrorist radicalization and recruitment in U.S. communities. DOJ is committed to the continued investigation and criminal prosecution of terrorists and other malicious actors, as well as criminal and civil denaturalization of U.S. citizens who derive their citizenship through naturalization fraud. DHS, in consultation with DOJ, will continue to report appropriate information regarding terrorism-related activity, as well as other information as directed under the President’s Executive Order, in an effort to highlight the threats facing the United States, trends, and relevant U.S. Government actions. At the same time, DHS and DOJ urge all U.S. states to work closely with the federal government on closing the data collection gaps identified in this report in the interest of full transparency and accountability to the American people. 10 Case Document 112 Filed 02/08/18 Page 106 of 218 EXHIBIT Case 2:17-cv-00094-RAJ Document 112 Filed 02/08/18 Page 107 of 218 DHS Implementation of Executive Order #13769 “Protecting the Nation From Foreign Terrorist Entry Into the United States” (January 27, 2017) E January 18, 2018 OIG-18-37 Case 2:17-cv-00094-RAJ Document 112 Filed 02/08/18 Page 108 of 218 DHS OIG HIGHLIGHTS DHS Implementation of Executive Order #13769 “Protecting the Nation From Foreign Terrorist Entry Into the United States” (January 27, 2017) January 18, 2018 Why We Did This Report Following news reports that U.S. Customs and Border Protection (CBP) personnel implementing Executive Order #13769 (EO) “Protecting the Nation from Foreign Terrorist Entry into the United States” (January 27, 2017) potentially violated the civil rights of individual travelers, we received a congressional request to investigate DHS’s implementation of the EO. In response, we investigated how DHS and CBP, the DHS entity primarily responsible for implementation of the EO, responded to challenges presented by the EO, including the consequence of court orders and CBP’s compliance with them. What We Recommend This report contains no recommendations. For Further Information: Contact our Office of Public Affairs at (202) 254-4100, or email us at DHS-OIG.OfficePublicAffairs@oig.dhs.gov www.oig.dhs.gov What We Found In our investigation, we found that CBP was caught by surprise when the President issued the EO on January 27, 2017. DHS had little opportunity to prepare for and respond to basic questions about which categories of travelers were affected by the EO. We found that the bulk of travelers affected by the EO who arrived in the United States, particularly LPRs, received national interest waivers. In addition, we observed that the lack of a public or congressional relations strategy significantly hampered CBP and harmed its public image. While the media reported instances of misconduct, we did not substantiate any claims of misconduct on the part of CBP Officers (CBPOs) at the ports of entry. Regarding the Department’s compliance with multiple federal court orders that were issued between the January 27, 2017 release of the EO and the February 3, 2017 nation-wide injunction in Washington v. Trump, we found that at the ports of entry, CBP largely complied with court orders, albeit with some delay and confusion as to the scope of some orders. But while CBP complied with court orders at U.S. ports of entry as to travelers who had already arrived, CBP was aggressive in preventing affected travelers from boarding aircraft bound for the United States. We believe those actions violated two separate court orders that enjoined CBP from this activity. DHS and CBP Response Appendix D provides a copy of DHS’s response to our report. DHS disagreed with our finding that CBP’s actions violated two separate court orders. OIG-18-37 Case 2:17-cv-00094-RAJ Document 112 Filed 02/08/18 Page 109 of 218 REDACTIONS MADE BY THE DEPARTMENT OF HOMELAND SECURITY OFFICE OF INSPECTOR GENERAL Department of Homeland Security Washington, DC 20528 / www.oig.dhs.gov January 18, 2018 MEMORANDUM FOR: The Honorable Kirstjen Nielsen Secretary Department of Homeland Security Kevin McAleenan Acting Commissioner U.S. Customs and Border Protection FROM: John V. Kelly Acting Inspector General SUBJECT: DHS Implementation of Executive Order #13769 “Protecting the Nation From Foreign Terrorist Entry Into the United States” (January 27, 2017) I am attaching our final report, DHS Implementation of Executive Order #13769 “Protecting the Nation from Foreign Terrorist Entry into the United States” (January 27, 2017). This report was prepared under the Inspector General Act of 1978, as amended, and, more specifically, Section 2(3), “to provide a means for keeping the head of the establishment and the Congress fully and currently informed about problems and deficiencies relating to the administration of [Departmental] programs and operations and the necessity for and progress of corrective action.” As you know, we provided our final draft report to the Department on October 6, 2017 for review and comment. We received the Department’s formal comments and redactions on January 12, 2018 — over three months later. The Department’s redactions did not contain any specific references to asserted privileges. In its Management Response, DHS disagreed with our conclusion that CBP’s actions in preventing affected travelers from boarding aircraft bound for the United States appeared to violate two separate court orders that enjoined them from this activity. We considered the Management www.oig.dhs.gov OIG-18-37 REDACTIONS MADE BY THE DEPARTMENT OF HOMELAND SECURITY Case 2:17-cv-00094-RAJ Document 112 Filed 02/08/18 Page 110 of 218 REDACTIONS MADE BY THE DEPARTMENT OF HOMELAND SECURITY OFFICE OF INSPECTOR GENERAL Department of Homeland Security Response, but our conclusions remain unchanged, as further explained in our response to DHS’s comments. Consistent with our responsibility under the Inspector General Act, we will provide copies of the redacted report to congressional committees with oversight and appropriation responsibility over the Department of Homeland Security. We will post the redacted report on our website for public dissemination. Attachment www.oig.dhs.gov OIG-18-37 REDACTIONS MADE BY THE DEPARTMENT OF HOMELAND SECURITY Case 2:17-cv-00094-RAJ Document 112 Filed 02/08/18 Page 111 of 218 REDACTIONS MADE BY THE DEPARTMENT OF HOMELAND SECURITY OFFICE OF INSPECTOR GENERAL Department of Homeland Security Table of Contents I. Overview...................................................................................................................3 II. Summary of Conclusions.......................................................................................5 III. Preparations and Premonitions: Before the EO ......................................................8 A. Advance Knowledge of EO at DHS Headquarters ................................................8 B. Media Reports Further Disclose Details of Draft EO .........................................10 C. Draft Copies Informally Circulated to USCIS on Wednesday, January 25 .........11 D. CBP Receives Brief Email Summaries on January 24-25..................................11 IV. The Long Weekend ...........................................................................................15 A. Friday, January 27: EO Day.............................................................................15 1. Initial Guidance and Concern for Lawful Permanent Residents .....................16 2. Exceptions /Waivers and Delegation of Authority..........................................20 3. Did the EO Cover LPRs? DHS Voices Additional Concerns About Scope ........20 4. The Initial View from the Field.......................................................................22 5. Initial Travelers Affected................................................................................24 B. Saturday, January 28: Evolving Implementation Amidst Media Attention and Court Orders ..........................................................................................................26 1. Initial Saturday Morning HQ Guidance .........................................................26 a. HQ Instructions to CBP Field .....................................................................26 b. Implementation of Instructions ..................................................................28 c. Guidance to External Stakeholders ............................................................31 2. Special Immigrant Visa and Refugee Waivers in the Face of Litigation...........34 3. Nationwide TRO in Darweesh Case ...............................................................36 4. Efforts to Comply with the Darweesh Order in Los Angeles ...........................37 5. Temporary Restraining Order Applicable in Virginia......................................38 6. Court Order Applicable in Washington State .................................................40 7. Coping with Chaos in the Field .....................................................................41 C. Sunday, January 29: Coping with Court Orders...............................................45 www.oig.dhs.gov OIG-18-37 REDACTIONS MADE BY THE DEPARTMENT OF HOMELAND SECURITY Case 2:17-cv-00094-RAJ Document 112 Filed 02/08/18 Page 112 of 218 REDACTIONS MADE BY THE DEPARTMENT OF HOMELAND SECURITY OFFICE OF INSPECTOR GENERAL Department of Homeland Security 1. Advocating for Permanent Visa Revocations ..................................................45 2. Expansion of National Interest Waivers to All Travelers .................................46 3. Crisis Action Teams ......................................................................................48 4. Ongoing Compliance with Court Orders ........................................................49 a. Aziz TRO – Dulles International Airport .....................................................49 b. Louhghalam TRO – Logan International Airport (Boston) ............................52 c. Applying Darweesh Order at Dallas-Ft. Worth ...........................................53 V. Back to Work: The Work Week ............................................................................55 A. Domestic Guidance and Operations .................................................................56 1. Continued Redelegation of Waiver Authority to DFOs....................................56 2. Guidance on Withdrawals .............................................................................57 3. Revised White House Position: LPRs Not Subject to EO.................................58 B. CBP’s Preclearance Operations and “No-Board” Instructions Block Travelers from Reaching the United States ............................................................................58 C. Compliance with Court Orders – International Implications .............................61 1. Travelers Refused After Darweesh Order .......................................................62 2. Louhghalam TRO’s International Application ................................................66 3. Los Angeles Court Order – Mohammed v. United States .................................69 4. Other International Effects of the Travel Ban ................................................72 D. Final TRO Halting Implementation of the EO....................................................72 VI. Allegations of CBPO Misconduct Largely Not Corroborated...............................74 A. Use of Restraints ..............................................................................................74 B. False or Unfounded Claims of Handcuffing ......................................................75 C. Claims that CBPOs Forced Applicants to Sign Withdrawal ...............................75 D. Excessive Detention Times ...............................................................................77 VII. Conclusion .......................................................................................................78 VIII. OIG Response to Management Comments on Our Report.................................79 Appendix A ................................................................................................................82 Appendix B ................................................................................................................83 Appendix C ................................................................................................................89 www.oig.dhs.gov OIG-18-37 REDACTIONS MADE BY THE DEPARTMENT OF HOMELAND SECURITY Case 2:17-cv-00094-RAJ Document 112 Filed 02/08/18 Page 113 of 218 REDACTIONS MADE BY THE DEPARTMENT OF HOMELAND SECURITY OFFICE OF INSPECTOR GENERAL Department of Homeland Security Appendix D ……………………………………………………………………………………………95 Appendix E ………………………………………………………………………………………….106 www.oig.dhs.gov OIG-18-37 REDACTIONS MADE BY THE DEPARTMENT OF HOMELAND SECURITY Case 2:17-cv-00094-RAJ Document 112 Filed 02/08/18 Page 114 of 218 REDACTIONS MADE BY THE DEPARTMENT OF HOMELAND SECURITY OFFICE OF INSPECTOR GENERAL Department of Homeland Security I. Overview At 4:43 p.m. 1 on Friday, January 27, 2017, the President issued an Executive Order (EO) that, among other actions: immediately suspended entry into the United States of immigrant and non-immigrant aliens from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen 2 for a period of 90 days [Section 3(c)], with exceptions “on a caseby-case basis … in the national interest” [Section 3(g)]; immediately suspended the U.S. Refugee Admissions Program (USRAP) for 120 days [Section 5(a)], with exceptions for religious minorities and in the national interest [Section 5(e)]; and indefinitely banned the entry of refugees from Syria [Section 5(c)]. 3 This report examines how DHS, and U.S. Customs and Border Protection (CBP) in particular, responded in real time to a number of quickly-emerging challenges that the EO posed, including: The legal scope of the EO, including whether the order covered lawful permanent residents (LPRs) (green card holders) from the seven countries, 4 many of whom may have resided in the United States for years, have U.S. citizen family members, or could have service records as members of the U.S military; Throughout this report, times are in U.S. Eastern Standard Time unless otherwise indicated. The EO did not apply to “foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United States, and G-1, G-2, G-3, and G-4 visas). 3 Executive Order #13769 “Protecting the Nation from Foreign Terrorist Entry into the United States” (Jan. 27, 2017). 4 Throughout this report, we refer to Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen as “the seven countries.” The EO suspended the entry into the United States of “aliens from countries referred to in section 217(a)(12) of the [Immigration and Nationality Act (INA)], 8 U.S.C. 1187(a)(12).” This section of the INA refers to nationals of Iraq and Syria, and nationals of other countries which the Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, has designated “countries or areas of concern.” As of January 27, 2017, Iran, Libya, Somalia, and Sudan had also been designated “countries of concern.” See also Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015, Pub. L. 114-113, Division O, Title II, Sec. 203; https://www.dhs.gov/news/2016/02/18/dhs-announces-further-travel-restrictions-visawaiver-program. www.oig.dhs.gov 3 OIG-18-37 1 2 REDACTIONS MADE BY THE DEPARTMENT OF HOMELAND SECURITY Case 2:17-cv-00094-RAJ Document 112 Filed 02/08/18 Page 115 of 218 REDACTIONS MADE BY THE DEPARTMENT OF HOMELAND SECURITY OFFICE OF INSPECTOR GENERAL Department of Homeland Security How holders of immigrant and non-immigrant visas were affected, with focus on holders of special immigrant visas from Iraq; How refugees were affected; How implementing guidance was developed, then distributed to the CBP rank-and-file at ports of entry; How the delegation of authority to grant exemptions or waivers 5 from the EO evolved over time, and its results; The consequence of court orders and the extent of CBP’s compliance with them; The experiences of travelers and how CBP responded to humanitarian concerns; and How DHS and CBP communicated with the media and Members of Congress as the media storm threatened, then raged. This report focuses on the experience of DHS and affected travelers arriving in the United States, from the signing of the EO on January 27 through February 3 when, in Washington v. Trump, the U.S. District Court for the Western District of Washington issued a temporary restraining order (TRO) that halted the government’s enforcement of the EO nationwide. We also touch on the experience of travelers who were refused admission at preclearance facilities outside the United States and travelers who were denied boarding by air carriers overseas. Some of the latter group eventually obtained boarding rights and gained admission to the United States, either because of court orders or pending litigation and the threat of additional court decisions. To prepare this report we obtained email correspondence and documents from DHS headquarters, as well as from the relevant DHS components: CBP, U.S. Immigration and Customs Enforcement (ICE), U.S. Citizenship and Immigration Services (USCIS), and the DHS Office of Intelligence and Analysis. CBP provided the lion’s share of documents and data. These materials included data compilations from several CBP databases concerning affected travelers at each domestic port of entry and preclearance facility. From the data, we established the number of waivers, or other actions that determined whether affected travelers would be admitted (or denied entry) to the United States. In addition, we reviewed relevant court orders and court filings, as well as media The source documents refer variously to “exemptions,” “waivers” and “exceptions” to the EO under Sections 3(g) and 5(e). We use the terms exemptions or waivers interchangeably, to mean the same thing: the admission into the United States of a person who would otherwise be excluded from entry under the EO. www.oig.dhs.gov 4 OIG-18-37 5 REDACTIONS MADE BY THE DEPARTMENT OF HOMELAND SECURITY Case 2:17-cv-00094-RAJ Document 112 Filed 02/08/18 Page 116 of 218 REDACTIONS MADE BY THE DEPARTMENT OF HOMELAND SECURITY OFFICE OF INSPECTOR GENERAL Department of Homeland Security coverage. We interviewed numerous DHS and component officials, the CBP Officers (CBPOs) tasked with implementing the order, and numerous travelers. Ultimately, we interviewed over 160 individuals and reviewed over 48,000 documents. Given the fast moving circumstances under which DHS and CBP worked to develop EO implementation guidance, many policy decisions unfolded partly on conference calls, for which written records do not exist. Thus, this report cannot capture the full extent of the discussions between DHS and its interagency partners. We do not opine on the legality of the EO, or the merits of the various court orders and legal actions that ensued. Rather, our focus was on the manner in which DHS and CBP executed the EO and the extent of compliance with court orders. We conducted the investigation and prepared this report under the authority of the Inspector General Act of 1978, as amended. 6 II. Summary of Conclusions DHS was largely caught by surprise by the signing of the EO and its requirement for immediate implementation. The Secretary of Homeland Security had seen two draft versions of the order, one on Tuesday and a revised draft on Thursday — the day before the order issued. But other than through media reports and a short email summary a few days before its signing, the main implementer of the EO’s provisions — CBP — had practically no advance notice that the order would issue, or that it would be effective upon signature. Nor did it know exactly what the EO would contain. DHS and its components had no opportunity to provide expert input in drafting the EO. Answers to critical questions necessary for implementation were undefined when the EO issued. No policies, procedures, and guidance to the field were developed. Nevertheless, the EO took effect immediately, while travelers from the affected countries were in the air and thousands more were preparing to travel. The lack of clarity regarding critical issues required DHS and its interagency partners DOJ and the State Department (State) to improvise policies and procedures in real time. Section 2(2) of the Inspector General Act of 1978, as amended, states that the purpose of the Act is to “provide leadership and coordination and recommend policies for activities designed (A) to promote economy, efficiency, and effectiveness in the administration of and (B) to prevent and detect fraud and abuse in, such programs and operations.” www.oig.dhs.gov 5 OIG-18-37 6 REDACTIONS MADE BY THE DEPARTMENT OF HOMELAND SECURITY Case 2:17-cv-00094-RAJ Document 112 Filed 02/08/18 Page 117 of 218 REDACTIONS MADE BY THE DEPARTMENT OF HOMELAND SECURITY OFFICE OF INSPECTOR GENERAL Department of Homeland Security We found that the lack of opportunity to plan for the EO led to the failure of DHS and CBP to implement an effective public affairs strategy in the early days of the EO. The lack of a media strategy — such as designating effective points of contact, issuing media guidance, and timely issuing official statements and answers to frequently asked questions —contributed to an impression of stonewalling and a perception of non-compliance with court orders even where that was not the case. On Friday and Saturday, CBP aggressively applied the EO to block the entry of non-LPR travelers affected by the EO. However, late Saturday night, a federal court in New York in the case of Darweesh v. Trump, issued a nationwide order staying the removal of aliens subject to the EO. Within 90 minutes of the Darweesh order, CBP had issued nationwide guidance to the field in an attempt to comply with the order. Although there were some delays in the receipt and transmission of court orders and accompanying guidance, we found that overall, CBP headquarters issued implementing guidance relatively quickly. As such, after the Darweesh order, we did not find significant variation in application of the EO across ports of entry nationally. However, we do have serious reservations about CBP’s compliance with Darweesh and two other court orders as they pertained to CBP’s international operations. By preventing individuals subject to the EO from reaching the United States, through various methods, CBP effectively circumvented provisions of these orders. After Darweesh, a federal court in Boston issued an order on Sunday, January 29. In that order, the court instructed CBP to notify airlines with flights bound for Boston that provisions of the EO were stayed. CBP complied, yet issued instructions to the airlines not to board passengers bound for Boston. On Tuesday, January 31, a federal court in Los Angeles, even more broadly instructed CBP not to block the entry of EO-affected travelers bound for the United States. Nevertheless, CBP continued to issue “no board” instructions and threatened fines to airlines that boarded EO-affected travelers on flights bound for the United States. Those actions —which had the same effect as denying the affected travelers entrance at ports of entry, an act prohibited by the court orders —are troubling. From the information at our disposal, it appears that CBP’s interviews of EOaffected travelers in secondary inspection (used to determine eligibility for a www.oig.dhs.gov 6 OIG-18-37 REDACTIONS MADE BY THE DEPARTMENT OF HOMELAND SECURITY Case 2:17-cv-00094-RAJ Document 112 Filed 02/08/18 Page 118 of 218 REDACTIONS MADE BY THE DEPARTMENT OF HOMELAND SECURITY OFFICE OF INSPECTOR GENERAL Department of Homeland Security waiver from the EO) relied on standard procedures for questioning travelers to ascertain risk. Under these procedures, CBPOs asked questions concerning the “five Ws” (who, what, where, when, why) about the traveler and his or her purpose of travel. Reported interview times varied in duration from as little as ten minutes to up to an hour — although records do not reflect whether this was inclusive of waiting times. At least one CBPO said he was frustrated with the vetting as implemented because of the language barriers between CBPOs and travelers and because it simply amounted to another hurdle for people to get into the United States. In our review, we did not identify any evidence that CBP detected any traveler linked to terrorism based solely on the additional procedures required by the EO. Although the court orders functionally required CBP to stop removing EOaffected travelers solely on the basis of the EO, CBP continued to refer practically all such travelers to secondary inspection. That policy led to large numbers of travelers being processed and detained for additional, and significant, periods of time. 7 Most EO-affected travelers who reached U.S. ports of entry were granted national interest waivers under Section 3(g) of the EO, and were admitted to the United States. Of the total 1,976 individual travelers that CBP processed under the EO, 8 90% (1,784) of them were admitted to the United States. Under the EO, 179 travelers (9%) were refused entry to the United States. Of this group, 178 withdrew their applications for admission and one was a crewmember detained on board a ship. 9 We reviewed public allegations of unprofessional conduct on the part of CBPOs, 7 DHS and CBP contend that “referral to secondary was functionally necessary” in order to grant national interest waivers. We note, however, that the EO itself only required “case-bycase” adjudication of waivers. We do not substitute our judgment for DHS and CBP’s policy decision. We simply describe the consequences. 8 Throughout this report, in referring to “EO-affected travelers,” we mean travelers whose processing, admission, or denial of admission into the United States was based on the EO. Largely in agreement with CBP’s classifications, our data and analysis excluded travelers from the seven countries who were denied admission under INA section 212(a) on grounds unrelated to the EO (such as persons barred on health grounds; persons with criminal conviction(s); or persons barred from entry under a previous order of expedited removal). During a final review of our report, CBP took the position that no processing or admission was based on the EO; therefore, in its view, our data methodology could not be validated. For further discussion, see Appendix C. 9 The crewmember possessed a D1 visa, a type of nonimmigrant visa that allows persons who work on sea vessels or international airlines that operate in the United States to visit the United States for up to 29 days in connection with the ship or airline’s normal operations. www.oig.dhs.gov 7 OIG-18-37 REDACTIONS MADE BY THE DEPARTMENT OF HOMELAND SECURITY Case 2:17-cv-00094-RAJ Document 112 Filed 02/08/18 Page 119 of 218 REDACTIONS MADE BY THE DEPARTMENT OF HOMELAND SECURITY OFFICE OF INSPECTOR GENERAL Department of Homeland Security including about the purported misuse of restraints and lengthy detentions of travelers without giving them access to food, water, and restrooms. Some media outlets and immigrants' rights attorneys amplified travelers' contentions of abuse and mistreatment by CBPOs. Certain stories gained traction concerning CBPOs' purported use of restraints, even on minor children, and lengthy detention of travelers without providing access to toilets, food, and water. Based on the information available to us when we drafted this report, we did not substantiate allegations of unprofessional conduct, although one incident is still under investigation. In general, with some exceptions, travelers told us that CBPOs behaved in a professional and humane manner, even in stressful situations. We concluded that differences in treatment, such as the use of restraints and conditions of detention, appear to have resulted from factspecific circumstances, such as the relative capacity of certain ports of entry to hold travelers overnight, or whether travelers had to be transported. We also found that some reported allegations were simply untrue. III. Preparations and Premonitions: Before the EO The bulk of this report provides a narrative of the most significant facts discovered during our investigation, arranged in generally chronological order. A. Advance Knowledge of EO at DHS Headquarters DHS Secretary John Kelly told OIG investigators that he believed he saw a draft of the EO and discussed it with both his Chief of Staff and Gene Hamilton, a transition team official, on Tuesday, January 24, four days after the inauguration. On Thursday, January 26, the day before the order issued, Hamilton shared a revised draft with the Secretary. The Secretary stated that he knew that the order was going to be promulgated. The Secretary understood that DOJ's Office of Legal Counsel (OLC) and the White House Counsel had vetted the draft EO for compliance with the law, and that DHS had played a role in drafting it. Secretary Kelly told us he had assumed that White House staff had proactively engaged Congress and other stakeholders in advance of the EO's signing. For his part, Hamilton told OIG investigators that he did not see the final EO until after it was signed. Nevertheless, Hamilton stated that based on an earlier draft, he was able to brief DHS leadership on the EO on Friday afternoon, about an hour after the EO signing ceremony at www.oiq.dhs.gov 8 OIG-18-37 REDACTIONS MADE BY THE DEPARTMENT OF HOMELAND SECURITY Case 2:17-cv-00094-RAJ Document 112 Filed 02/08/18 Page 120 of 218 REDACTIONS MADE BY THE DEPARTMENT OF HOMELAND SECURITY OFFICE OF INSPECTOR GENERAL Department of Homeland Security Mon. - Thurs. Jan. 23 - 26 Friday Jan. 27 Saturday Jan. 28 Sunday Jan. 29 Mon. -Sat. Jan. 30 - Feb. 4 4:43 p.m. Hamilton circulated the final version of the EO to the CBP, ICE and USCIS leadership at 6:32 p.m. Joseph Maher, the Acting General Counsel for DHS, told OIG investigators that he lac ked specific knowledge of the EO (but did know generally that an EO was coming until he saw a draft about an hour before it was signed. er was a , he and his staff lacked the opportunity to review the EO in advance or to provide guidance on its implementation. Maher had understood, however, that DOJ OLC had vetted it, and when he looked at the draft, he believed a deep knowledge of immigration law had informed it. DHS took the position that a presidential order cleared by DOJ OLC was a fully binding, legal order that mus t be enforced, absent a court order invalidating it in whole or in part. We note that DOJ OLC's memorandum approving the EO, dated January 27, 2017, was limited to the following analysis: "[t]he proposed Order is approved with respect to form and legality." This memorandum did not analyze the due process rights of LPRs, the interests of SIV holders, or other issues with which DHS, and the courts, would grapple throughout the week. The dearth of analysis and informal nature of the EO memorandum can be distinguished from letter and memorandum opinions on DOJ OLC's website, which provide a legal opinion and detailed legal analysis in response to a question of law. Other than Secretary Kelly and Acting General Counsel Maher, we did not identify anyone at DHS headquarters who saw a draft of the EO before its issuance. It does not appear that DHS headquarters forwarded or otherwise circulated the draft EO to anyone in CBP. 1 0 Executive Order "Enhancing Public Safety in the Interior of the United States" and Executive Order "Border Security and Immigration Enforcement Improvements." www.oiq.dhs.gov 9 OIG-18-37 REDACTIONS MADE BY THE DEPARTMENT OF HOMELAND SECURITY Case 2:17-cv-00094-RAJ Document 112 Filed 02/08/18 Page 121 of 218 REDACTIONS MADE BY THE DEPARTMENT OF HOMELAND SECURITY OFFICE OF INSPECTOR GENERAL Department of Homeland Security M on . - Thurs. J an . 23 - 2 6 B. Friday Jan. 27 Saturday Jan. 28 Sunday Jan. 29 Mon. - Sat. Jan. 30 - Feb. 4 Media Reports Further Disclose Details of Draft EO Media reports on the forthcoming EO began to appear on Tuesday, January 24. DHS daily media summaries captured the reporting in various degrees of detail. Employees throughout DHS and external stakeholders received the summaries, which compiled multiple news reports on the draft EO. For ins tance, the Wednesday morning edition of "The Homeland Security News Briefing," an internal DHS news summary service, detailed specifics of the draft EO from January 24 news reports, including that the President would sign an EO that would "include at leas t a four month halt on all refugee admissions, as well as a temporary ban on people coming from some Muslim-majority countries." On Wednesday mornin g, Reuters carried one of the earliest detailed articles on the draft EO, statin g that accordin g to "congressional aides and immigration experts briefed on the matter," the order would "include a temporary ban on most refugees and a suspension of visas for citizens of Syria and six other Middle Eastern and African countries."11 On Wednesday evenin g, Vox published a White House "action memorandum" to the Pres ident, dated January 23, and an accompanying draft of the Eo. 12 The draft EO that Vox publis hed differed in several respects from the final, signed EO. For instance, the January 23 draft contained 12 sections (versus 11 sections in the final order), including a thirty day ban on entry of aliens from seven countries (versus 90 days in the final order). The January 23 draft also contained some provis ions that remained unchanged in the final EO. For example, the draft and final EOs suspended the USRAP for 120 days (Section S(a) in both the Vox draft and the final EO) and indefinitely suspended the entry of Syrian refugees (Section S(c) in both documents). Other publications also published copies of the draft on-line. 13 11 J . E. Ainsley, "Trump expected to order temporary ban on refugees," Reuters (Jan. 25, 2017, 7 :59 a .m.) at http: //www.reuters.com/article/us-USA-trump-immigration-exclusiveidUSKBN1582XQ. 1 2 M. Yglesias & D. Lind, "Read leaked drafts of 4 White House executive orders on Muslim ban, end to DREAMer program, and more," Vox (Jan. 25, 2017, 5:43 p.m.), https: //www.vox.com/policy-and-politics/2017I1/25/14390106/leaked-drafts-trumpimmigrants-executive-order. 1 3 Crist iano Lima, "Trump says immigrat ion block 'not the Muslim ban"' Politico (Jan. 25, 2017) at h t tp: //www.politico.com/storv/2017I01 /trump-immigration-block -muslim-ban-234205 (posted at 11 :22 p.m.); J . Hirschfeld Davis, "Trump Orders Mexican Border Wall t o Be Built www.oiq.dhs.gov 10 OIG-18-37 REDACTIONS MADE BY THE DEPARTMENT OF HOMELAND SECURITY Case 2:17-cv-00094-RAJ Document 112 Filed 02/08/18 Page 122 of 218 REDACTIONS MADE BY THE DEPARTMENT OF HOMELAND SECURITY OFFICE OF INSPECTOR GENERAL Department of Homeland Security M on . - Thurs. J an . 23 - 2 6 C. Friday Jan. 27 Saturday Jan. 28 Sunday Jan. 29 Mon. - Sat. Jan. 30 - Feb. 4 Draft Copies Informally Circulated to USCIS on Wednesday, January 25 A draft of the EO circulated via email from DOJ to USCIS attorneys on Wednesday, January 25. . Based on the draft, officials at USCIS decided to suspend "circuit rides. " These are onsite interviews of refugees for potential participation in the USRAP, which were scheduled to take place beginning January 25. Notwithstanding that the EO was still in draft form and the informal nature in which USCIS officials received it, it appears that these officials regarded the draft EO as sufficiently legitimate to justify immediate action affecting many government travelers and refugees. 14 Reuters, the Associated Press, and The Hill all reported on USCIS's suspension of the circuit rides on January 26, as captured in "The Homeland Security News Briefing" the following morning. It does not appear that USCIS officials forwarded or otherwise circulated the draft EO to anyone in CBP. D. CBP Receives Brief Email Summaries on January 24-25 On Tuesday, January 24, a senior advisor at CBP headquarters emailed Acting Commissioner Kevin McAleenan a brief summary of what m ight happen on Wednesday, when the President was expected to sign certain executive ord security. According to the senior advisor's summary, and Plans to Block Syrian Refugees," New York Times (Jan. 25, 2017) at https: //www.nytimes.com/2017 /01 /25/us/p olitics/refugees-immigrants-wall-trump .html; D . Boyer, "Trump executive order to stem refugees from 'terror - prone regions," The Washington Times (Jan. 25, 2017) a t http:/ /www.washingtontimes.com/news/2017/jan/25/trump-orderstem-refugees-terror-prone-regions/. 14 A review of this draft EO circulated to USCIS reveals t hat www.oia. s.qov OIG-18-37 REDACTIONS MADE BY THE DEPARTMENT OF HOMELAND SECURITY Case 2:17-cv-00094-RAJ Document 112 Filed 02/08/18 Page 123 of 218 REDACTIONS MADE BY THE DEPARTMENT OF HOMELAND SECURITY OFFICE OF INSPECTOR GENERAL Department of Homeland Security Mon. - Thurs. Jan. 23 - 26 Friday Jan. 27 Saturday Jan. 28 Sunday Jan. 29 Mon. -Sat. Jan. 30 - Feb. 4 On Wednesday, January 25, Acting Commissioner McAleenan received a slightly more detailed summary of the EO from several congressional staffers. One iteration of the summary reached McAleenan after a congressional staffer forwarded it to Chip Fulghum, who was then serving in three roles: as Acting Deputy Secretary of Homeland Security; Acting Under-Secretary for Management; and Deputy Under Secretary for Management. After providing an overview of the two orders to be signed on Wednesday, the staffer summarized in bullet points a third order concerning "National Security," potentially to be signed on Thursday, January 26, which (in the words of the staffer): • • • • • • • • • • "Suspends visa issuance to countries where adequate screening cannot occur Suspends the refugee program for 120 days to determine which nationalities pose the least risk Suspends immigrant and nonimmigrant entry for countries of particular concern for 30 days Requires review of what information is necessary to safely issue visas to these countries Suspends visas to nationals of countries that don't provide the information necessary to adjudicate the visas Possible exceptions: diplomats, NATO and C-2 visas for travel to the UN Establis hes requirements for "extreme vetting" (the requirements seem similar to what is currently done by the USCIS Fraud Detection and National Security unit) Prioritizes refugees whose claims are based on religious persecution or religious minority s tatus Suspends indefinitely the Syrian refugee program and all visa issuance to Syrians Limits refugee cap to 50,000 for FY l 7 www.oiq.dhs.gov 12 OIG-18-37 REDACTIONS MADE BY THE DEPARTMENT OF HOMELAND SECURITY Case 2:17-cv-00094-RAJ Document 112 Filed 02/08/18 Page 124 of 218 REDACTIONS MADE BY THE DEPARTMENT OF HOMELAND SECURITY OFFICE OF INSPECTOR GENERAL Department of Homeland Security Mon. - Thurs. Jan. 23 - 26 • • Friday Jan. 27 Saturday Jan. 28 Sunday Jan. 29 Mon. -Sat. Jan. 30 - Feb. 4 Directs the State [Department] and DOD to create a plan for safe zones for Syrian refugees Expedites completion of an Entry-Exit system" Thus, CBP leadership received the most complete summary of the parameters of a potential EO from Congressional staffers who apparently were better informed about the parameters of the EO than CBP itself. Acting Commissioner McAleenan forwarded the bullet point summary to CBP's National Targeting Center (NTC) in the Office of Field Operations (OFO), which be an to re are an issue a er on the otential impact on CBP operations . is As early as Wednesday morning, NTC had begun pulling data, which included a preliminary estimate of 222 nonimmigrant visa holders arriving daily from the seven affected countries. I The NTC distributed a draft of the issue is The OFO is the largest component in CBP, charged with border security and facilitating trade and travel. See https: JJwww.cbp.govJabout/leadership-organization/ executive-assistantcommissioners-offices. Within the OFO, the NTC identifies people and products that pose potential threats to national security and prevent them from entering the United States. https:JJwww.cbp.govJsitesJdefault/files Jassets Jdocuments J201 7 -MarJcbpaccessv3 .3 021114. pdf. www.oiq.dhs.gov 13 OIG-18-37 REDACTIONS MADE BY THE DEPARTMENT OF HOMELAND SECURITY Case 2:17-cv-00094-RAJ Document 112 Filed 02/08/18 Page 125 of 218 REDACTIONS MADE BY THE DEPARTMENT OF HOMELAND SECURITY OFFICE OF INSPECTOR GENERAL Department of Homeland Security Mon. - Thurs. Jan. 23 - 26 Friday Jan. 27 Saturday Jan. 28 Sunday Jan. 29 Mon. -Sat. Jan. 30 - Feb. 4 For example, on Thursday afternoon, a representative of the EU Delegation to the U.S. emailed CBP asking to discuss "a draft executive order we have seen and which would/ could bar the entry to the US of foreign nationals of 7 countries. In particular, we would like to know how CBP would implement this order when it comes to dual citizens (binationals) from the EU, who can't since December 2015 apply to an ESTA 16 but who are holding a valid US visa (or possibly a US green card or any other form of legitimate residence in the US)." This email was forwarded to several CBP officials before it reac hed CBP's Deputy Executive Director DED , Admissibility and Passenger Programs, who advised 1 6 The Electronic System for Travel Authorization (ESTA) is an automated system that determines the eligibility of aliens to travel to the United States under the Visa Waiver Program (VWP) . Under the VWP, eligible citizens or nationals of designated countries may travel to the United States for tourism or business for up to 90 days without a visa. https:/ /www.cbp.gov/travel/international-visitors/frequently-asked-questions-about-visawaiver-program-vwp-and-electronic-system-travel. www.oiq.dhs.gov 14 OIG-18-37 REDACTIONS MADE BY THE DEPARTMENT OF HOMELAND SECURITY Case 2:17-cv-00094-RAJ Document 112 Filed 02/08/18 Page 126 of 218 REDACTIONS MADE BY THE DEPARTMENT OF HOMELAND SECURITY OFFICE OF INSPECTOR GENERAL Department of Homeland Security Mon. -Thurs. Jan. 23 - 26 Friday Jan. 27 IV. Saturday Jan. 28 Sunday Jan. 29 Mon. -Sat. Jan. 30 - Feb. 4 The Long Weeke nd The EO issued at the close of business on Friday, January 27. This would result in long work days through the weekend for some, and long detention hours for others. A. Friday, January 27: EO Day The President signed the EO at 4:43 p.m. on Friday afternoon. DHS component leadership received the final signed order at 6 :32 p .m. Secretary Kelly was traveling at the time, so immediate responsibility fell on Acting Deputy Secretary Chip Fulghum to ensure its implementation. Once the EO was issued, Fulghum convened DHS senior leadership for a 6:00 p.m. conference call using the most expeditious forum he had: the Counterterrorism and Cyber Threat Advisory Board (CTAB). Preclearance Facilities According to meeting minutes, CBP maintains preclearance facilities at 15 the CTAB call began with international airports in Canada, Ireland, Fulghum stating that even the UAE, and other locations. At these though DHS did not have a copy facilities, CBP officers screen passengers of the signed EO, it was being and their luggage before they can board interpreted as effective flights to the United States. Established by immediately. Fulghum also formal agreement between the United States stated that the State Department and the host cou ntry, these facilities are was cancelling all applicable part of CBP's "extended border strategy." visas. Acting CBP Commissioner Generally, CBP applies U.S. law on foreign McAleenan stated that the EO would have an immediate impact territory in cooperation with th e h ost nation. on air and land travelers. Fulghum directed CBP and DHS's Office of Operations Coordination to provide detailed reporting over the weekend and advised that additional weekend calls were likely. By 5:22 p.m., the CBP's NTC had begun preparing for weekend operations on the EO. In order to prevent large numbers of EO-affected travelers from reaching the United States, NTC would have to flag the travelers in CBP computer systems and airlines would need to be engaged so that they could www.oiq.dhs.gov 15 OIG-18-37 REDACTIONS MADE BY THE DEPARTMENT OF HOMELAND SECURITY Case 2:17-cv-00094-RAJ Document 112 Filed 02/08/18 Page 127 of 218 REDACTIONS MADE BY THE DEPARTMENT OF HOMELAND SECURITY OFFICE OF INSPECTOR GENERAL Department of Homeland Security Mon. -Thurs. Jan. 23 - 26 Friday Jan. 27 Saturday Jan. 28 Sunday Jan. 29 Mon. -Sat. Jan. 30 - Feb. 4 deny boarding. During normal operations (e.g., before the EO), a CBPO liaison in a foreign airport without a CSP pre-clearance facility (such as Zurich) would typically inform the airline of passengers CSP recommends not boarding, based on threat information from the NTC and other sources. Officers in the Regional Carrier Liaison Groups, Immigration Advisory Program (stationed at airports in Western Europe, Asia, and the Middle East), and Joint Security Program (posted in Mexico City and Panama City) would contact air carriers to recommend not boarding travelers. 17 As it implemented the EO, CSP continued to follow its normal (pre-EO) procedures to identify U.S. - bound travelers who could pose a security risk. Under the EO, CSP would continue to use these tools, but now with the intention of identifying all EO-affected travelers in order to advise carriers to not allow them to board (or to directly b lock their travel at CBP's pre-clearance facilities abroad). Since many flights were already in the air when the EO was promulgated and guidance to the airlines was slow to issue, it took several days for this process to reduce the volume of travelers reaching the United States. 1. Initial Guidance and Concern for Lawful Permanent Residents At 6:50 p.m., CBP's OFO advised all Directors of Field Operations (DFOs) 18 and other field leadership that the President had just signed the EO and to "standby for guidance on immediate implementation." Seventeen m inutes later, Gene Hamilton distributed to DHS head uarters "Official W hite H ouse By the time the official version of the EO reached DHS, its lawyers and experts (from headquarters, CSP, ICE, and USCIS) were already on a conference call working through a series of implementing questions 18 Directors of Field Operations are typically Senior Executive Service (SES) officials with operational responsibility over multiple ports of entry in a given geographic area (e.g., the Baltimore Field Office Director oversees Dulles, Philadelphia, and Baltimore Washington International Airports). www.oiq.dhs.gov 16 OIG-18-37 REDACTIONS MADE BY THE DEPARTMENT OF HOMELAND SECURITY Case 2:17-cv-00094-RAJ Document 112 Filed 02/08/18 Page 128 of 218 REDACTIONS MADE BY THE DEPARTMENT OF HOMELAND SECURITY OFFICE OF INSPECTOR GENERAL Department of Homeland Security Mon . - Thur s. Jan. 23 - 26 Friday Jan. 27 Saturday Jan. 28 Sunday Jan. 29 Mon . - Sat. Jan. 30 - Feb. 4 Throu ghout Friday evening, Ac ting Commissioner McAleen a n expressed in communication s with DHS officials, including the h ead s of USCIS and ICE and Acting De puty Secr etary Fulghum. For ins ta n ce, in an e mail to Acting USCIS Director Lori Sciala bba and ICE Deputy Director Da niel Ragsdale, McAleenan wrote The scop e of the EO and its applicability (or n ot) to variou s categories of traveler s , a t 8 :05 p.m., CBP's lawyer s r eceived "initial guida n ce" unde r the EO , LPR - Green Card A la wful permanent r esident (LPR) has auth orization to live and work in the United Stat es, as evid en ced by a p ermanent r esident card ("gr een card "). Mos t LPRs are s pons ored by family or e mployers in the U.S. , althou gh refugees and a sylees m ay als o b ecome LPRs . LPRs gen e rally h ave the s ame due process rights a s citizen s. A green card typically is valid for a p eriod of 10 years and m ay b e ren ewed . A conditional r esident has a two year n on-renewable gr een card with certain res tric tions attac h ed. An immigr a tion judge can adjudicate an LPR as removable unde r certain cir cu m s tances , su ch a s finding the LPR committed certain c rimes or left the U.S . for a lengthy period of time. www.oiq.dhs.gov 17 OIG-18-37 REDACTIONS MADE BY THE DEPARTMENT OF HOMELAND SECURITY Case 2:17-cv-00094-RAJ Document 112 Filed 02/08/18 Page 129 of 218 REDACTIONS MADE BY THE DEPARTMENT OF HOMELAND SECURITY OFFICE OF INSPECTOR GENERAL Department of Homeland Security Mon. - Thurs. Jan. 23 - 26 Friday Jan. 27 Saturday Jan. 28 Mon. - Sat. Jan. 30 - Feb. 4 Sunday Jan. 29 19 Refugees and Asylees DHS Expedited Procedures A refugee is a p erson outside h is or h e r cou ntry of nation ality wh o is unable or unwilling to r eturn to his or h e r cou ntry of nation ality becau se of p ersecution or a well-found ed fear of p ersecu tion on accoun t of r ace, r eligion, nationality, m embership in a p articular social group , or political opm10n. Withdrawal I Voluntary Departure: by An asylee is a person who meets the definition of r efugee and is already present in the United States or is seeking a dmission at a p ort of e n try. Refugees are required to app ly for LPR status one year after being a dmitted, and asylees may apply for gr een card status one year after a gr ant of asylum. s ign ing Form 1-275, alien agrees to withdraw application for admission and to imm ediately d epart, bu t can later attem pt reentry withou t pe n alty. Expedited Removal: Non-ju dicial alternative: • • • • • • OHS officers m ake s ummary adjudication s Alien s can seek "credible fear" review for asylum status App eal rights limited to credible fear or claim of lawful status in th e U.S. Final Ord er of Re m oval results in reen try ban u p to 5 years C riminal p rosecu tion p ossible if aliens attem pt to return early App lies to alien s designated by OHS Secretary in Federal Register (e.g., near borde r areas and in country less th an 2 years) 1 9 Under the INA, certain classes of aliens without a valid visa can apply for advance parole . If granted, advance parole gives an alien permission to return to a U.S. port of entry and seek reentry into the United States after traveling abroad. See 8 C .F.R. § Advance parole is commonly granted for individuals who have a pending application for adjustment of status to that of an LPR. See 8 C .F .R. § 245.2(a)(4)(ii) . www.oiq.dhs.gov 18 OIG-18-37 REDACTIONS MADE BY THE DEPARTMENT OF HOMELAND SECURITY Case 2:17-cv-00094-RAJ Document 112 Filed 02/08/18 Page 130 of 218 REDACTIONS MADE BY THE DEPARTMENT OF HOMELAND SECURITY OFFICE OF INSPECTOR GENERAL Department of Homeland Security Mon. -Thurs. Jan. 23 -26 Friday Jan.27 Saturday Jan. 28 Mon. -Sat. Jan. 30 - Feb. 4 Sunday Jan. 29 . Around this time, and "[u]pon request of the U.S. Department of Homeland Security ... ," the State Department emailed CBP a one-page document provisionally revoking visas for all EO-affected travelers. 20 At 9:00 p.m., a conference call of DFOs (who typically oversee multiple regional ports of entry) and other OFO leadership took place to provide clarification and further guidance to the field. The chart at right captures the structure of CBP's chain of command from headquarters to the field. The 9:00 p.m. call was widely attended. Two separate contemporaneous email summaries of the call recited directives that LPRs, returning refugees, returning CBP Operational Chain of Command-From HO to Fleld (Acting) Commissioner (Cl or ACl) I (Acting) Deputy Commissioner (C2 or AC2) I Executive Assistant Commissioners (6 offices] I Directors of Field Operations (DFOs) I Port Directors (PDs) I Area Port Directors I Assistant Port Directors I Watch Commanders I Supervi sory CBPOs I CBPOs Under 22 C.F.R. § 41.122(b)(2) , "A consular officer, the Secretary, or any Department official to whom the Secretary has delegat ed this authority may provisionally revoke a nonimmigrant visa while considering informat ion relat ed to whether a visa holder is eligible for the visa." Moreover, "A provisional revocation is subject to reversal through internal procedures established by the Department of State. Upon reversal of the revocation, the visa immediately resumes the validity provided for on its face. Provisional revocation shall have the same force and effect as any other visa revocation under INA 221(i), unless and until the revocation has been reversed. Neither the provisional revocation of a visa nor the reversal of a provisional revocation limits, in any way, the revocation authority provided for under INA 221(i), with respect to the particular visa or any other visa. " Cf 22 C.F.R. § 42.82(b). www.oiq.dhs.gov 19 OIG-18-37 20 REDACTIONS MADE BY THE DEPARTMENT OF HOMELAND SECURITY Case 2:17-cv-00094-RAJ Document 112 Filed 02/08/18 Page 131 of 218 REDACTIONS MADE BY THE DEPARTMENT OF HOMELAND SECURITY OFFICE OF INSPECTOR GENERAL Department of Homeland Security Mon. -Thurs. Jan. 23 - 26 Friday Jan. 27 Saturday Jan. 28 Sunday Jan. 29 Mon. - Sat. Jan. 30 - Feb. 4 asylees, and returning parolees were all to be referred to secondary inspection for a Tactical Terrorism Response Team (TTRT)21 interview, the results of which were to be sent to OCC for counsel and recommendations for waiver approval to the Acting Commissioner - with the exception of LPRs, who could be granted a waiver on the authority of the DFO. One of the summaries stated that, "[a]ny non-immigrant visa holders, first time immigrant visa holders, first time refugees currently enroute [sic] to U.S. or that arrive after today s hould be offered the opportunity to withdraw their applications for admission, if they refuse to withdraw then they should be processed as expedited removals." 2. Exceptions I Waivers and D elegation ofAuthority But delegating authority to DFOs to grant waivers would, in fact, take some time. Under Section 3(g) of the EO, the Secretaries of Homeland Security and State - not the DFOs- had the waiver/ exception authority. The Secretary of Homeland Security, who was travelin g, would need to delegate that authority downward to the Acting Commissioner of CSP. In turn, the Acting Commissioner would need to execute delegations to the DFOs, most of whom were members of the Senior Executive Service (SES). Moreover, for refugees, coordinatio n would be required with Department of State counterparts to whom the Secretary of State would delegate waiver authority. Even though both departments were apparently working quic kly on the delegations, they took time to draft, approve, and finalize. 3. Did the EO Cover LPRs? DHS Voices Additional Concerns About Scope Acting Commissioner McAleenan and his team worked through Friday night and into Saturday morning, with inc reasing fo cus on what the EO would do to the affected LPRs already in the air and flying to the United States. Early that 21 See https:/ /www.dhs .gov/news/2017/05/03/written-testimony-cbp-ice-plcy-housecommittee-homeland-security-task-force -denying (TIRTs "are deployed at U.S. POEs and consist of CBP Officers who are specially trained in counterterrorism response. TIRT Officers utilize information derived from targeting and inspection to mitigate possible threats. TIRT officers are immersed in the current and developing threat picture through the continuous review of information, and are responsible for the examination of travelers identified within the Terrorist Screening Database, and other travelers suspected of having a nexus to terrorism who arrive to a POE.") www.oiq.dhs.gov 20 OIG-18-37 REDACTIONS MADE BY THE DEPARTMENT OF HOMELAND SECURITY Case 2:17-cv-00094-RAJ Document 112 Filed 02/08/18 Page 132 of 218 REDACTIONS MADE BY THE DEPARTMENT OF HOMELAND SECURITY OFFICE OF INSPECTOR GENERAL Department of Homeland Security Mon. -Thurs. Jan. 23 - 26 Friday Jan. 27 Saturday Jan. 28 Sunday Jan. 29 Mon. - Sat. Jan. 30 - Feb. 4 evening, McAleenan and others believed that LPRs were not within the scope of the EO. But when it became clear that the text of the EO likely included LPRs, McAleenan engaged in a series of email exchanges with Gene Hamilton to clarify the issue. In one email, McAleenan Hamilton responded that, as he understood the EO's language, it did indeed cover LPRs and that each person would require an individual exemption under Section 3(g) of the EO after a "revetting of sorts." McAleenan replied that he had operational concerns about the number of LPRs and others covered by the EO who were already in the air. At 9: 15 p.m., Secretary Kelly's Chief of Staff responded to this chain of emails that She added that s he was prepared to have the Secretary's military aide ask him to read an email summary of the issue that night. In res ponse to McAleenan's email, Acting Deputy Secretary Fulghum suggested , to which McAleenan replied at 12:07 a.m.: www.oiq.dhs.gov 21 OIG-18-37 REDACTIONS MADE BY THE DEPARTMENT OF HOMELAND SECURITY Case 2:17-cv-00094-RAJ Document 112 Filed 02/08/18 Page 133 of 218 REDACTIONS MADE BY THE DEPARTMENT OF HOMELAND SECURITY OFFICE OF INSPECTOR GENERAL Department of Homeland Security Mon. -Thurs. Jan. 23 - 26 Friday Jan. 27 Saturday Jan. 28 Sunday Jan. 29 Mon. -Sat. Jan. 30 - Feb. 4 While McAleenan and Hamilton discussed the applicability of the EO to LPRs, OGC prepared a delegation of authority for Acting Deputy Secretary Fulghum to sign in lieu of the Secretary, who had been in transit. Shortly before midnight, Fulghum informed McAleenan that he had signed the delegation. It authorized McAleenan to approve national interest waivers for immigrant and non-immigrant visa holders and to redelegate waiver authority for LPRs to SESlevel (or equivalent) operations personnel. Within the next few hours, McAleenan issued the redelegation and DFOs received notice of their new authority, along with an EO implementation memorandum from CSP headquarters. Later during the weekend, CSP would be confronted with another set of sympathetic travelers - special immigrant visa (SIV) holders, who were typically Iraqi nationals, some of whom had years of service alongside U.S. forces in combat s ituations. 4. The Initial View from the Field Upon learning of the EO, initial reactions among members of CSP's senior operations personnel were generally professional, although not devoid of surprise. Some line CSPOs reacted with shock and confusion. Implementing guidance from headquarters flowed down the chain of command relatively quickly and efficiently. Early Friday evening, DFOs and senior management quickly received email notification from CSP headquarters that the EO had issued and to stand by for guidance. The DFOs promptly forwarded www.oiq.dhs.gov 22 OIG-18-37 REDACTIONS MADE BY THE DEPARTMENT OF HOMELAND SECURITY Case 2:17-cv-00094-RAJ Document 112 Filed 02/08/18 Page 134 of 218 REDACTIONS MADE BY THE DEPARTMENT OF HOMELAND SECURITY OFFICE OF INSPECTOR GENERAL Department of Homeland Security Mon. -Thurs. Jan. 23 - 26 Friday Jan. 27 Saturday Jan. 28 Sunday Jan. 29 Mon. - Sat. Jan. 30 - Feb. 4 the notification and copies of the EO to lower-level supervisors . After additional guidance during the 9:00 p.m. conference call, DFOs passed the information along to their subordinates. Typically, the guidance flowed from DFOs to Port Directors, and from Port Directors to Area Port Directors and Watch Commanders. Then Watch Commanders and other supervisory CBPOs generally shared the guidance with line CBPOs at the start of their s hifts at "musters" (roll-call and oral group briefings). Significantly, CBPOs across the country typically received instructions to care for EO-affected travelers and ensure that they received food, water and res troom access while they were held in secondary inspection. The details of implementing these ins tructions were left to the field to improvise. Our investigation found that a number of CBPOs used their own personal funds to purchase coffee or tea for EO-affected travelers, while at some ports CBPOs used the travelers' fund s to purc hase food or beverages for them. We examined photographs of detention areas and reviewed a s ampling of contemporaneous security video from a handful of airports. We also interviewed as many EOaffected travelers as we could , although many would not speak with us. In addition, we reviewed EO-related complaints that were submitted to the OIG Hotline, and litigation filed in federal courts. Based on our review of available information, we were not able to confirm serious allegations of abuse, although one incident is still under review. www.oiq.dhs.gov 23 OIG-18-37 REDACTIONS MADE BY THE DEPARTMENT OF HOMELAND SECURITY Case 2:17-cv-00094-RAJ Document 112 Filed 02/08/18 Page 135 of 218 REDACTIONS MADE BY THE DEPARTMENT OF HOMELAND SECURITY OFFICE OF INSPECTOR GENERAL Department of Homeland Security Mon. -Thurs. Jan. 23 - 26 5. Friday Jan. 27 Saturday Jan. 28 Sunday Jan. 29 Mon. -Sat. Jan. 30 - Feb. 4 Initial Travelers Affected Over 40 travelers affected by the EO began arriving at John F. Kennedy Airport (JFK), Los Angeles International Airport (LAX), and six other U.S. ports of entry and pre-clearance facilities overseas on Friday night. These travelers would be screened late Friday night and into the early hours of Saturday subject to the terms of the EO and the initial guidance from CBP headquarters. The travelers we interviewed told us, generally, that the DHS employees they encountered were professional, respectful, and accommodating. There was at least one notable exception, however, which we discuss below.22 For instance, a Syrian- born J-2 (Dependent of Exchange Student Visitor) visa holder who arrived at Dulles International Airport (Dulles) in Virginia, on Friday on a flight from Doha, Qatar described mostly professional and friendly CBPOs. Although she said one CBPO allegedly pointed at her, waved his finger, and yelled at her, she stated that a second CBPO spoke to her politely and explained the s ituation. She added that a third CBPO attempted to console her as she cried while being driven in a cart to the gate for her return flight to Qatar. She returned to Qatar on the 10:25 a.m. flight Saturday morning. She was able to enter the United States on February 6. In contrast, another traveler detailed what she described as a frustrating and "harsh" experience on Friday and Saturday at LAX. This traveler, an Iranian national F- 1 (Academic Student) visa holder, arrived on a flight from Oslo, Norway, traveling from Vienna, Austria. She stated that she heard CBPOs discussing the EO, which included what she described as "a lot of back and forth discussion amongst them during that time and it seemed that no one understood what was going on." The traveler added that she never received an explanation regarding the EO throughout the approximately 23 hours she was detained.23 She described her treatment as "quite harsh," which included being 22 OIG investigators identified and attempted to int erview many travelers, but only succeeded in speaking with 24. T hrough counsel, some refused to speak wit h our investigators, despite assurances of confidentiality and that OIG was not invest igat ing or evaluat ing travelers' immigration s t atus. We could not locat e other travelers. Thus, our sample of 24 may not represent the experience of all travelers. We also cannot discount the possibility that the travelers were fearful of retaliation and, as such, would not disclose evidence of mist reatment. 23 We discuss length of det ention separately, at the end of the report. Although det ention times for some travelers could be verified, it was not possible to det ermine with confidence an average www.oiq.dhs.gov 24 OIG-18-37 REDACTIONS MADE BY THE DEPARTMENT OF HOMELAND SECURITY Case 2:17-cv-00094-RAJ Document 112 Filed 02/08/18 Page 136 of 218 REDACTIONS MADE BY THE DEPARTMENT OF HOMELAND SECURITY OFFICE OF INSPECTOR GENERAL Department of Homeland Security Mon. -Thurs. Jan. 23 - 26 Friday Jan. 27 Saturday Jan. 28 Sunday Jan. 29 Mon. -Sat. Jan. 30 - Feb. 4 given quick orders by CBPOs, having her possessions taken away without explanation, and being roughly searched. The traveler explained that she wanted to wear her shawl in the detention area, but a CBPO told her that she could not as the shawl was a strangling hazard. She also said she began to experience anxiety while in the detention area and notified an unidentified CBPO of her condition. The traveler said the unidentified CBPO offered to move her to a more private "cell," which, she said "had a metal bench and a metal toilet[,] the contents [of which] included human waste[,] which had not been flushed," but she declined. The traveler explained that another unidentified CBPO allowed her to briefly sit in the corridor outside the detention room. She added that she was not provided with food that conformed to her vegetarian d iet. She also stated that felt she was "coerced" into signing an 1-275 form because she was told that otherwise she would be "forcibly removed." She explained that given the way she had been roughly searched, she felt fearful of what forcible removal would mean for her. She also stated that an unidentified CBPO told her not to worry as visas would be reissued. The traveler explained that she overheard an unidentified CBPO discussing her situation with another unidentified CBPO. She described the unidentified CBPO as speaking in a very frustrated and confused tone and she found the situation worrisome because the people in charge d id not seem to know what to do. We will return to this traveler's s ituation as we discuss compliance with court orders on Saturday, January 28, below. Also among the travelers arriving on Friday evening at JFK were two who would become lead plaintiffs in a significant case filed the next morning in federal court in Brooklyn: Hameed Khalid Darweesh and Haider Sameer Abdulkhaleq duration for which the EO-affected travelers remained in secondary inspection. That is because entry and exit times for secondary inspection were not always captured uniformly or accurately. For example, according to the data CBP provided, the duration of secondary inspection for a mother and her two minor children who arrived in the United States on the same flight was 16.8 hours for the mother, 6 hours for one child, and 0 hours for the second child, with an average recorded processing time for this family of 7.6 hours. DHS and CBP explained that processing times can vary for members of the same family and that release from secondary can also be dependent on other factors, such as the availability of onward flights . www.oiq.dhs.gov 25 OIG-18-37 REDACTIONS MADE BY THE DEPARTMENT OF HOMELAND SECURITY Case 2:17-cv-00094-RAJ Document 112 Filed 02/08/18 Page 137 of 218 REDACTIONS MADE BY THE DEPARTMENT OF HOMELAND SECURITY OFFICE OF INSPECTOR GENERAL Department of Homeland Security Mon. -Thurs. Jan. 23 - 26 Friday Jan. 27 Saturday Jan. 28 Sunday Jan. 29 Mon. -Sat. Jan. 30 - Feb. 4 Alshawi. Darweesh had assisted U.S forces as a translator, and Alshawi had served as a contractor for a U.S. firm. B. Saturday, January 28: Evolving Implementation Amidst Media Attention and Court Orders On Saturday, CBP prioritized favorable adjudication of waivers for LPRs. At the same time, CBP applied the EO relatively more strictly to non-immigrant visa (NIV) holders and immigrant visa (IV) holders until several federal courts issued orders, which caused CBP to modify its implementation of the EO. Altogether, 115 immigrant and non-immigrant visa holders who arrived on Saturday would be denied entry under the EO, after CBPOs determined they were inadmissible and offered them a Hobson's choice: an opportunity to withdraw their applications for admission to the United States and depart voluntarily without other legal consequences, or face an adversarial expedited removal proceeding with potentially serious legal consequences. It is no surprise which option all EO-affected travelers exercised. CBP also continued to apply the EO at preclearance facilities and through its international operations to prevent NIVs and IVs abroad from boarding U.S.-bound flights. 1. Initial Saturday Morning HQ Guidance For much of Saturday, at least from the headquarters perspective, CBP's attention turned to the situation of Special Interest Visa (SIV) holders and refugees from Iraq who fit within the scope of the EO but had also assisted U.S. forces at great risk to their own lives. Guidance would change over the course of the day, as media coverage and judicial scrutiny intensified. a. HO Instructions to CBP Field At 1:07 a.m. on Saturday morning in Washington, a CBP headquarters official transmitted a guidance memorandum to DFOs on implementing the EO. DHS OGC told us that this and all significant guidance was the product of multip le interagency discussions, including teleconferences and other clearance procedures involving DOJ, DHS, CBP and Department of State stakeholders. This document largely mirrored what had been orally communicated to DFOs and others during the 9:00 p.m. conference call on Friday, as follows (paraphrased and summarized): www.oiq.dhs.gov 26 OIG-18-37 REDACTIONS MADE BY THE DEPARTMENT OF HOMELAND SECURITY Case 2:17-cv-00094-RAJ Document 112 Filed 02/08/18 Page 138 of 218 REDACTIONS MADE BY THE DEPARTMENT OF HOMELAND SECURITY OFFICE OF INSPECTOR GENERAL Department of Homeland Security Mon. -Thurs. Jan. 23 - 26 • • • • • Friday Jan. 27 Saturday Jan.28 Sunday Jan. 29 Mon. -Sat. Jan. 30 - Feb. 4 The Department of State had provided a letter provisionally revoking the immigrant and nonimmigrant visas of all individuals from the seven countries, which "may not yet be annotated in the system." After noting DFOs had the authority to grant exemptions for LPRs following a TTRT secondary interview, the memorandum provided suggested language to document the exemption in a CBP database. The next group of affected travelers - refugees, asylees, unaccompanied alien children, and persons returning to the United States with advance parole - should all be held at the port of entry until they receive individual exemptions, which would be jointly granted at the Secretary of DHS and Secretary of State level. The final category of affected travelers - non-immigrant and first-time immigrant visa holders - should either withdraw their applications for admission to the United States on USCIS Form 1-275 without a sworn statement, or be placed in expedited removal proceedings, under standard operating procedures (including giving travelers an opportunity to make credible fear of persecution claims).24 The NTC-Passenger would coordinate with the Immigration Advisory Program/Joint Security Program and Regional Carrier Liaison Groups where possible to deny boarding to travelers affected by the EO. The DFOs and CBPOs we interviewed indicated that they timely received the guidance via email and at shift "muster" meetings. At 1:09 a.m., CBP headquarters also sent out reporting requirements and a template to capture data on affected travelers, with instructions to report at 24hour intervals by 5:00 a.m. daily. At 8:33 p.m. on Saturday, a revised template would be sent out to the field to capture more information about the categories of EO-affected travelers. Later, CBP headquarters revised the reporting obligations to require thrice-daily reports of encounters with affected travelers. In general, the sworn statement is a record of the alien's responses to a series of questions posed by the CBPO and on Form I- 867B, concerning admissibility and credible fear . A sworn statement is required in expedited removal proceedings, 8 C.F.R. § 235 .3(b)(2)(i) , but not in cases of withdrawal of an application for admission. 8 C .F.R. § 235.4. www.oiq.dhs.gov 27 OIG-18-37 24 REDACTIONS MADE BY THE DEPARTMENT OF HOMELAND SECURITY Case 2:17-cv-00094-RAJ Document 112 Filed 02/08/18 Page 139 of 218 REDACTIONS MADE BY THE DEPARTMENT OF HOMELAND SECURITY OFFICE OF INSPECTOR GENERAL Department of Homeland Security Mon. -Thurs. Jan. 23 - 26 b. Friday Jan. 27 Saturday Jan.28 Sunday Jan. 29 Mon. -Sat. Jan. 30 - Feb. 4 Implementation of Instructions On Saturday morning, DFOs across the country used their new authority to grant waivers to LPRs, following the mandatory secondary inspection procedure that CBP imposed as part of its EO-implementation. This screening procedure created some lengthy periods of detention, as discussed later in this report. The waiver process is illustrated by the example below, taken from the Baltimore Field Office (BFO), which covers Dulles International Airport, and Philadelphia and Baltimore air and sea ports. On Saturday, the DFO at that location was in constant telephone and email contact with CBP Port Directors and headquarters. The DFO instructed her subordinates to forward to her all waiver requests for eligible travelers. The DFO stated she evaluated each waiver sent to her and did not "rubber stamp" waivers. The waiver requests, sent by email, typically included the traveler's biographical details, LPR or visa status, itinerary and purpose of visit, and negative results from the TTRT secondary inspection, if any. The duration of TTRT interviews under the EO seemed to vary, from as little as ten minutes, to twenty or thirty minutes. One CBPO at Dulles told OIG investigators that the TTRT interviews consisted of the standard "five Ws" (who, what, when, where, and why) asked in any secondary inspection. CBPOs use these questions to develop a profile of a traveler and the purpose of their trip. We saw no evidence that TTRT interviews were different under the EO than those conducted before it issued - other than that CBP used the TTRT interviews under the EO to develop information in order to grant national interest exceptions to affected travelers. Through our review of CBP documents and data, we did not discover any indication that the TTRT interviews uncovered any terrorist threats or derogatory information missed in existing vetting processes. www.oiq.dhs.gov 28 OIG-18-37 REDACTIONS MADE BY THE DEPARTMENT OF HOMELAND SECURITY Case 2:17-cv-00094-RAJ Document 112 Filed 02/08/18 Page 140 of 218 REDACTIONS MADE BY THE DEPARTMENT OF HOMELAND SECURITY OFFICE OF INSPECTOR GENERAL Department of Homeland Security Mon. -Thurs. Jan. 23 - 26 Saturday Jan.28 Friday Jan. 27 Mon. - Sat. Jan. 30 - Feb. 4 Sunday Jan. 29 The secondary inspection that the EO-affected travelers received at the airport was an additional, mandatory s tep in an already-involved visa process of approvals and vetting that had taken place months before the travel. The following chart illustrates the major steps in the process: Based on a review of the email traffic, below are a few examples of how the Alien Approval or National Petitions Denial Visa Center USCIS (NVC) of Collect and Submit Forms to NVC: • => • processing P etition Select Agent Submit Visa Application Form • Pay fees • Submit Financial and Supporting Documents Visa Approval • Jmmi1rant visa placed in passport • Pay immigrant visa fee to USClS • Must travel to US Consular Visa Officer Applicant Decision Interview within stated time • U.S. Embassy Sealed lmmierant Packet-carry with and present to CBPO at Port of Entry • Review and analysis • Fraud detection • Interview 9Cheduled waivers were accomplished and whom they affected: • At 9:52 a.m. the CSP Watch Commander at the Port of Philadelphia emailed to his supervisor, the Area Port Director, a list of four LPRs for waivers. www.oiq.dhs.gov 29 OIG-18-37 REDACTIONS MADE BY THE DEPARTMENT OF HOMELAND SECURITY Case 2:17-cv-00094-RAJ Document 112 Filed 02/08/18 Page 141 of 218 REDACTIONS MADE BY THE DEPARTMENT OF HOMELAND SECURITY OFFICE OF INSPECTOR GENERAL Department of Homeland Security Mon. -Thurs. Jan. 23 - 26 Friday Jan. 27 Saturday Jan.28 Sunday Jan. 29 Mon. -Sat. Jan. 30 - Feb. 4 The Area Port Director in turn forwarded the waiver request to the DFO at 10:09 a.m. The DFO approved the waivers at 10:46 a.m. Altogether, from the time the four reques ts were put into email format and sent up the chain of command, the review and approval took less than an hour. Of course, before the request was ever sent for approval, the affected travelers were diverted to secondary inspection and then subjected to TTRT interviews. The entire process of referring these specific travelers to secondary inspection until the moment when the DFO approved the waivers by email took between two and three hours. • Similarly, at 9:44 p.m. , a supervisory CBPO on the TTRT at Dulles forwarded to the Watch Commander an email containing a waiver request for a mixed group of 11 LPRs of Yemeni and Iranian origin Eight minutes later, the Watch Commander forwarded the email to the DFO, who approved it at 10:09 p.m. with the comment "[p]lease ensure they are allowed to swiftly depart [... ]". The review and approval process for this Saturday night waiver took less than 25 minutes from the time the field forwarded the request. Below is a chart that reflects the delegations of authority to grant waivers for LPRs and the daily totals of waivers granted to LPRs at all ports of entry. www.oiq.dhs.gov 30 OIG-18-37 REDACTIONS MADE BY THE DEPARTMENT OF HOMELAND SECURITY Case 2:17-cv-00094-RAJ Document 112 Filed 02/08/18 Page 142 of 218 REDACTIONS MADE BY THE DEPARTMENT OF HOMELAND SECURITY OFFICE OF INSPECTOR GENERAL Department of Homeland Security Mon. -Thurs. Jan. 23 - 26 Saturday Jan.28 Friday Jan. 27 Mon. -Sat. Jan. 30 - Feb. 4 Sunday Jan. 29 Statu::; of Lawful Permanent Rc::;ident:> (LPR::;) Under Executive Order (EO) Delea:at:lon of Authorlt:y to Admit: LPRa Under Seet:lon 3 (C) Natlona l lnt:ereat £xempt:lon I 4 :43pJ , I I I P Com missioner • 12:22am CDP Senior £xecut lve Service Limits on OHS Authority to Remove LPRs + 9:00pm Oarweesh (Nat:ionwide) Enjoins LPR Removal + 1o:oopm Aziz (Dulles A irport) • LPRs Have Attorney Access No . of LPR Refusals 1 1 No. o f LPR Ex.emptio ns 12 Friday 1/27/2017 R ll'"fuv.I ol'lnd ,.. ,,.mrrtlnn d a t,.\ 419 Saturday 1/28/2017 I I _L I H 4a1 Sunday 1/29/2017 ''!"""ct thl"' d.-t,.;ii; trol'llvrlr: r"O w oer<:adml tt