-
8/14/2019 T5 B64 GAO Visa Docs 1 of 6 Fdr- 3-24-03 GAO Interview
of INS-Sarah Kendall Re Legal Issues and Visa Revocatio
1/3
Prepared by: Mary MoutsosDate Prepared: March 24, 2003 DOC
Number: 852199Job Code: 320172
Record of InterviewTitle Interview at Immigration and
Naturalization ServicePurpose Interview Sarah Kendall, Chief of the
National SecurityDivision, IN SContact Method In-person
interviewContact Place INSContact Date Feb. 27,2003Participants
INS Sarah Kendall, Attorney, Chief of National Security
DivisionCathy Muhletaler, Attorney LiaisonGAP IAT: Judy
McCloskey,Kate Brentzel, TAJ:Jay JenningsO G C : Nancy Finley, Mary
Moutsos
Comments/Remarks:
The team met with Sarah Kendall to discuss two legal issues
related to the job. The issues areoutlined asfollows:L E G A L I S
S U E R E L A T E D T O T H E V I S A R E V O C A T I O N S :1)
Alien entered the country with a valid visa. Subsequently, the visa
wasrevoked. INS hastold us they are investigating the individuals,
but, practically speaking, if the aliens are in statusthen there is
little the INS can do.
a. Removal proceedings: the INScould under the law institute
removal proceedingagainst the alien. However, this could be
problematic particularly if the revocation isbased on classified
information since such information would have to be disclosed to
thealien, in some form, sometime during the removal process.i.
Basing proceeding on inadmissibility could require the disclosure
of classifiedmaterial: if the removal proceeding are based on the
fact that the alien isinadmissible under 212(a)(3)(B) then at the
removal proceedings under INA 240the alien would have to be
apprised in some manner of the basis of the chargesagainst him. As
a result, according to Sara Kendall, the agencies do not want
toauthorize the release of the classified information because
either it couldjeopardize the ongoing investigation or reveal
sources and methods.1. Section 240(a)(4)(B) says that the alien
shall have a reasonableopportunity to examine the evidence against
the alien...but these rights
Page 1 Record of Interview
-
8/14/2019 T5 B64 GAO Visa Docs 1 of 6 Fdr- 3-24-03 GAO Interview
of INS-Sarah Kendall Re Legal Issues and Visa Revocatio
2/3
Prepared by: Mary MoutsosDate Prepared: March 24, 2003 DOC
Number: 852199Job Code: 320172
shall not entitle the alien to examine such national security
information asthe Government mayproffer in opposition to the aliens
admission.2. Sarah Kendall told us that, generally, the alien would
receive anunclassified summaryof the information and the judge
would receive theclassified information.ii. Basing proceeding on
revocation could still result in disclosure of classifiedmaterial:
according to Sarah Kendall, the INScould argue that the alien
isdeportable because the alien was inadmissible at the time the
alien entered thecountry (probably under 237(a)(l)(A) - alien who
at time of entry was within aclass of aliens inadmissible by law at
such time is deportable). That may allowthe US not to have to
divulge any classified information at that part of theproceeding
(just have State say, yep we revoked the visa), but even if the
judgeallowed that, once the issue of bail was discussed, the
USwould have to divulgewhy bail is not permissible in this case. At
such a point, the US would have todivulge that the alien is a
security threat and thus, divulge the classifiedinformation upon
which the US is basing its determination.
b. Detention of the alien prior to any removal proceedings:
under 8 CFR 287.3 theIN S is allowed to take an alien into custody,
though they must charge the alien withsome immigration offense or
release the alien within 48 hours of the alien being takeninto
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 someimmigration violation (aside from
violations that require the US to divulge classifiedinformation
during the immigration proceedings).
LEGAL ISSUES RELATED T O T H E SIDE ISSUE RE G AR DING W HE N A
RE VOCAT ION is T H E PROPER OPTIONA N D W H E N R E M O V A L
PROCEEDINGS A R E T H E PROPER OPTION T O PREVENT A N INADMISSIBLE
ALIENF R O M ENTERING THE US AT THE POE:Two scenarios help explain
this side legal issue that INS and State have brought up with us
ininterviews:
1) Analien arrives at POE and the visa has already been revoked.
Both State and INSagree 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 tobelieve the alien is inadmissible (i.e.
information contained in one of thedatabases). State and INS have,
according to INS, a disagreement over what is the propercourse at
this point.a. State: a revocation is not the proper course once the
alien has entered into theinspection process. Rather removal is the
option at this point. (According to INSofficials)b. INS: says that
the fact that the alien has not yet been admitted to the county,
butrather is in the inspection process, makes a revocation of the
visa the cleanest andeasiest recourse in such a situation.
Page 2 Record of Interview
-
8/14/2019 T5 B64 GAO Visa Docs 1 of 6 Fdr- 3-24-03 GAO Interview
of INS-Sarah Kendall Re Legal Issues and Visa Revocatio
3/3
Prepared by: Mary MoutsosDate Prepared:March 24, 2003 DOC
Number: 852199Job Code: 320172
i. With a revocation the alien can effectively be turned around
at the border.The legal process is done under the expedited removal
proceedings asfollows: under 212(a)(7)(B) an alien is inadmissible
if they do not have theproper travel documents, i.e. a necessary
visa. Under 235(b)(l)(A)(i) if analien is inadmissible under
212(a)(7)(B), then the inspection officer shallorder the alien
removed from the USwithout further hearing or review (unlessthe
alien applies for asylum.) Thus, the alien is removed without
further dueprocess. This provision also applies to aliens who are
inadmissible becausethey engaged in fraud or misrepresentation in
gaining travel documents orentry into the US, under
212(a)(6)(C).ii. If revocation or expedited removal are not used,
then INSwould have to doremoval proceeding at the border which does
afford the alien some dueprocess. Section 240 of the IN A states
that an immigration judge shallconduct proceedings for deciding the
inadmissibility or deportability of analien. Section 240also gives
the alien certain due process rights, includingbeing given a
reasonable opportunity to examine the evidence against thealien.1.
There is a provision that allows for removal ofaliens inadmissible
onsecurity related grounds. Here alien would get unclassified
summaryofevidence, according to Sarah Kendall. Also according to
Sarah Kendall, 235(c) is rarely used because of the secret nature
of the proceedings.
Page 3 Recordof Interview
