Prepared by: Mary Moutsos Date Prepared: March 24, 2003 Job Code: 320172

DOC Number: 852199

Record of Interview
Title
Purpose

Interview at Immigration and Naturalization Service
Interview Sarah Kendall, Chief of the National Security Division, INS

Contact Method

In-person interview

Contact Place Contact Date Participants

INS Feb. 27,2003
INS Sarah Kendall, Attorney, Chief of National Security Division Cathy Muhletaler, Attorney Liaison GAP IAT: Judy McCloskey, Kate Brentzel, TAJ: Jay Jennings OGC: Nancy Finley, Mary Moutsos

Comments/Remarks:
The team met with Sarah Kendall to discuss two legal issues related to the job. The issues are outlined as follows:

LEGAL ISSUE RELATED TO THE VISA REVOCATIONS:
1) Alien entered the country with a valid visa. Subsequently, the visa was revoked. INS has told us they are investigating the individuals, but, practically speaking, if the aliens are in status then there is little the INS can do. a. Removal proceedings: the INS could under the law institute removal proceeding against the alien. However, this could be problematic particularly if the revocation is based on classified information since such information would have to be disclosed to the alien, in some form, sometime during the removal process. i. Basing proceeding on inadmissibility could require the disclosure of classified material: if the removal proceeding are based on the fact that the alien is inadmissible under 212(a)(3)(B) then at the removal proceedings under INA § 240 the alien would have to be apprised in some manner of the basis of the charges against him. As a result, according to Sara Kendall, the agencies do not want to authorize the release of the classified information because either it could jeopardize the ongoing investigation or reveal sources and methods. 1. Section §240(a)(4)(B) says that the alien shall have a reasonable opportunity to examine the evidence against the alien...but these rights
Page 1 Record of Interview

Prepared by: Mary Moutsos Date Prepared: March 24, 2003

DOC Number: 852199

Job Code: 320172

shall not entitle the alien to examine such national security information as the Government may proffer in opposition to the aliens admission. 2. Sarah Kendall told us that, generally, the alien would receive an unclassified summary of the information and the judge would receive the classified information. ii. Basing proceeding on revocation could still result in disclosure of classified material: according to Sarah Kendall, the INS could argue that the alien is deportable because the alien was inadmissible at the time the alien entered the country (probably under 237(a)(l)(A) - alien who at time of entry was within a class of aliens inadmissible by law at such time is deportable). That may allow the US not to have to divulge any classified information at that part of the proceeding (just have State say, yep we revoked the visa), but even if the judge allowed that, once the issue of bail was discussed, the US would have to divulge why bail is not permissible in this case. At such a point, the US would have to divulge that the alien is a security threat and thus, divulge the classified information upon which the US is basing its determination. b. Detention of the alien prior to any removal proceedings: under 8 CFR § 287.3 the INS is allowed to take an alien into custody, though they must charge the alien with some immigration offense or release the alien within 48 hours of the alien being taken into custody, or a reasonable period of time in the case of an emergency. Thus, detention of the alien is not an option unless the alien can be charged with some immigration violation (aside from violations that require the US to divulge classified information during the immigration proceedings). LEGAL ISSUES RELATED TO THE SIDE ISSUE REGARDING WHEN A REVOCATION is THE PROPER OPTION
AND WHEN REMOVAL PROCEEDINGS ARE THE PROPER OPTION TO PREVENT AN INADMISSIBLE ALIEN FROM ENTERING THE US AT THE POE:

Two scenarios help explain this side legal issue that INS and State have brought up with us in interviews: 1) An alien arrives at POE and the visa has already been revoked. Both State and INS agree that the alien in inadmissible because the alien does not have a valid visa. 2) Alien arrives at the POE and the visa is valid but the inspector has reason to believe the alien is inadmissible (i.e. information contained in one of the databases). State and INS have, according to INS, a disagreement over what is the proper course at this point. a. State: a revocation is not the proper course once the alien has entered into the inspection process. Rather removal is the option at this point. (According to INS officials) b. INS: says that the fact that the alien has not yet been admitted to the county, but rather is in the inspection process, makes a revocation of the visa the cleanest and easiest recourse in such a situation.
Page 2 Record of Interview

Prepared by: Mary Moutsos Date Prepared: March 24, 2003 Job Code: 320172

DOC Number: 852199

i. With a revocation the alien can effectively be turned around at the border. The legal process is done under the expedited removal proceedings as follows: under 212(a)(7)(B) an alien is inadmissible if they do not have the proper travel documents, i.e. a necessary visa. Under 235(b)(l)(A)(i) if an alien is inadmissible under 212(a)(7)(B), then the inspection officer shall order the alien removed from the US without further hearing or review (unless the alien applies for asylum.) Thus, the alien is removed without further due process. This provision also applies to aliens who are inadmissible because they engaged in fraud or misrepresentation in gaining travel documents or entry into the US, under 212(a)(6)(C). ii. If revocation or expedited removal are not used, then INS would have to do removal proceeding at the border which does afford the alien some due process. Section 240 of the INA states that an immigration judge shall conduct proceedings for deciding the inadmissibility or deportability of an alien. Section 240 also gives the alien certain due process rights, including being given a reasonable opportunity to examine the evidence against the alien. 1. There is a provision that allows for removal of aliens inadmissible on security related grounds. Here alien would get unclassified summary of evidence, according to Sarah Kendall. Also according to Sarah Kendall, § 235(c) is rarely used because of the secret nature of the proceedings.

Page 3

Record of Interview

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