The Immigration and Naturalization Service's Contacts With Two September 11 Terrorists:
A Review of the INS's Admissions of Mohamed Atta and Marwan Alshehhi, its Processing of their Change of Status Applications, and its Efforts to Track Foreign Students in the United States
U.S. Department of Justice
Office of the Inspector General
May 20, 2002
ATTA'S AND ALSHEHHI'S ENTRIES INTO THE UNITED STATES
This chapter discusses Atta's and Alshehhi's entries into the United States, the decisions made by INS inspectors who handled their entries, and the INS policies that relate to the actions taken by the inspectors with respect to these entries. Atta and Alshehhi each entered the United States three times. Each time, they presented a valid passport and an unexpired B-1/B-2 visitor visa good for multiple entries.
In this chapter, we discuss Atta's entries first, and then turn to Alshehhi's entries. On the first and third entries, Atta was admitted through the primary inspection process. On the second entry, he was referred to secondary where he was more closely examined before being admitted. Similarly, Alshehhi was also admitted through the primary inspection process on his first and third entries and was admitted on his second entry after being referred for secondary inspection. Before describing the INS's handling of these entries and our analysis of the INS's actions, we provide background information on the INS inspection process that aliens such as Atta and Alshehhi face when presenting themselves for admission to the United States at ports of entry (POEs). At the end of the chapter, we provide our conclusions concerning the admissions of Atta and Alshehhi.
- The Inspection Process
Immigration Inspectors are INS officers who work at airport, seaport, and land border POEs inspecting the documentation of persons as they attempt to enter the United States. At major airports, inspectors work shifts and are supervised by shift supervisors who report to an assistant port director or a watch commander. The assistant port directors or watch commanders report to a Deputy Port Director, who in turn reports to the Port Director. 14
- The primary inspection process
When aliens disembark from an airplane, they initially go through the primary inspection process. The primary inspection area is staffed by inspectors who ensure that the I-94 form (Arrival/Departure Record) 15 is complete, legible, and contains current information; briefly interview aliens to determine the purpose of their visit and the proposed length of stay; and check documents presented to determine their authenticity as well as expiration dates. The inspector looks at the I-94, visa, and passport, as well as any other documents that should be presented (such as an I-20), in order to determine if these documents are valid, authentic, and complete. The inspector may also review the passport for the last exits and entries to the United States to see if the aliens overstayed their previous authorized admissions. To admit the alien, the inspector must be convinced that the alien's purpose for entering the country matches the purpose for the type of visa contained in the passport.
If the passport contains a machine-readable visa or encoding on a passport's biographical page, the inspector swipes the passport through an automated reader. 16 This initiates a number of automated checks in the Interagency Border Information System (IBIS), which contains "lookout" databases maintained by the U.S. Customs Service; the State Department; the Bureau of Alcohol, Tobacco and Firearms; the Drug Enforcement Administration; the Royal Canadian Mounted Police; and other law enforcement agencies. 17 It also includes warrants and arrests from the FBI's National Crime Information Center database (NCIC) and lookouts posted in the INS's National Automated Immigration Lookout System (NAILS).
If the computer check does not indicate a "hit" and the inspector does not determine that there is any other reason to refer the alien for secondary inspection, the inspector places an admission stamp on the top and bottom of the I-94 and the passport. The admission stamp includes the 3-digit port code, the inspector's assigned number, the current date, the classification of the visa, and the date until which the alien is admitted. The inspector also indicates in the computer system that the person has been "confirmed" or admitted via the primary inspection process.
The top portion of the I-94 (the arrival I-94) is retained by the inspector. The bottom portion (the departure I-94) is returned to the passenger. The nonimmigrant must retain the departure I-94 at all times while in the United States. Prior to departing the United States, the passenger presents the departure I-94 at check-in or at the gate, depending on the airline's policy. 18
If the primary inspector determines that the alien is subject to a "hit" in the computer databases or does not have a valid passport or visa, the primary inspector should refer the person to "secondary inspection" for further interview and review by a secondary inspector. The primary inspector does not have the authority to deny the alien's entry. Rather, the primary inspector's job is to process people as quickly as possible and to refer them to secondary inspection if there is any concern about their admissibility. Primary inspectors are expected to spend no more than 45 to 60 seconds on average with each passenger. 20
- The secondary inspection process
When referring the passenger to secondary inspection, 21 the primary inspector enters comments into the computer system indicating that a referral to secondary is being made and the reason for the referral. The alien is then taken to or directed to the secondary inspection area, which is usually adjacent to where the primary inspection occurred.
At major POEs, the secondary inspection area is typically staffed by one or two senior immigration inspectors, a supervisory inspector, and several experienced inspectors. The secondary inspector re-interviews the alien, reviews his or her documentation, and runs additional computer checks. The secondary inspector has access not only to IBIS and other law enforcement databases but also to several additional INS databases, including the INS's Central Index System (which shows whether the INS has an alien file (A-file) on the person), NIIS, STSC, 22 and CLAIMS. 23
If the secondary inspector admits the passenger, the admission need not be approved by a supervisor. However, more complex cases requiring application and interpretation of a legal provision are normally presented to a supervisor for concurrence and final decision. The secondary inspector should note in the computer system comments addressing the referral by the primary inspector and the reasons the person is being admitted.
The secondary inspector may determine that the person should not be admitted and that "adverse action" is warranted. Adverse action generally means removal or exclusion based on a violation of the INA or other federal statutes. 24 The secondary inspector must get approval from a supervisor prior to taking adverse action.
- The primary inspection process
- Atta's Entries into the United States
Mohamed Mohamed Elamir Atta, born on September 1, 1968, was a citizen of Egypt. Atta held an Egyptian passport, which was valid until May 7, 2007. On May 18, 2000, Atta was issued a B-1/B-2 visa at the United States consulate in Berlin, Germany. The multiple-entry visa was valid for five years. Atta used this passport and visa on his three entries to the United States, which we describe in turn.
We show a timeline of the INS's contacts with Atta on the next page.
- Atta's first entry - June 3, 2000, Newark, New Jersey
According to INS records, Atta first entered the United States on June 3, 2000, at Newark International Airport in New Jersey, after flying from Prague International Airport in the Czech Republic. The OIG confirmed that a "hit" or a "lookout" did not appear on the IBIS screen when the inspector swiped Atta's passport. Atta was admitted by the primary INS inspector without being referred to secondary. Atta received a B-2 admission that allowed him to stay in the United States for six months until December 2, 2000.
The primary INS inspector who admitted Atta had been employed with the INS as an inspector since April 1998. He told the OIG that he did not recall the inspection of Atta.
Our review of the evidence available to the inspector does not reveal any basis for concluding that his admission of Atta was contrary to INS policies and practices. Atta's passport and visa appear to have been valid, and there was no information available to the inspector through lookout checks that would have suggested that Atta should be referred to secondary inspection.
- Atta's second entry - January 10, 2001, Miami, Florida
As we discuss in more detail in the next chapter, in August 2000 Atta (and Alshehhi) enrolled in a professional pilot course at Huffman Aviation International, a flight training school in Venice, Florida. He submitted an application to the INS (INS form I-539) requesting that his status as a visitor to the United States be changed to that of a student. The INS received his change of status form on September 19, 2000, but did not adjudicate it until July 2001. Atta finished his flight training at Huffman Aviation on December 19, 2000.
- Processing Atta at the POE
On January 4, 2001, Atta left the United States from Miami International Airport for Madrid, Spain. Six days later, on January 10, 2001, he re-entered the United States at Miami Airport from Madrid.
The OIG confirmed that a "hit" or a "lookout" did not appear on the IBIS screen when the primary inspector swiped Atta's passport. After being interviewed by the primary inspector, however, Atta was sent to secondary. After an interview at secondary inspection, he was admitted as a B-2 visitor until September 8, 2001.
The primary inspector who referred Atta to secondary for further inspection wrote in his electronic referral message, "PAX [passenger] turned in [an I-20 form] but has had a responce [sic], meanwhile he's attending flight training school, already was in school for 5/6 months, please verify." After reviewing this referral report with the OIG, the primary inspector stated that he thought the referral should have read "has not had a response [to his change of status application]."
The primary inspector did not recall the specifics of his inspection of Atta. Based upon his review of the referral report during his interview with the OIG, he stated that he must have concluded that because Atta was in flight school, he needed an M-1 (vocational student) visa. We asked the primary inspector how he would have learned that Atta had applied for student status with the INS. In his initial interview with the OIG in November 2001, the inspector told the OIG that he thought that Atta had presented an I-20, but in subsequent OIG interviews conducted in March 2002, the inspector told the OIG that he could not recall if Atta had an I-20 with him. Because the primary inspector does not have access to any database with this information, we believe that Atta must have told the inspector that he was attending school and had applied for a change of status.
The secondary inspector who interviewed Atta had been an inspector for approximately 10 years. The secondary inspector told the OIG he did not remember interviewing Atta. He said that he believed he would have followed his normal routine, which included checking several databases, including NCIC, CLAIMS, and STSC, to determine Atta's admissibility. The secondary inspector's notes recorded in the referral report stated the following: "SUBJ applied for M-1. I.S. Adjusted status. No overstay /No removal grounds found."
Based upon INS computer records and these notes, it appears that the secondary inspector accessed CLAIMS and determined that Atta had applied to change his status to an M-1 classification. According to the secondary inspector, "I.S." means "in status," which indicates that the secondary inspector concluded that Atta had not overstayed. 25 In addition, the secondary inspector told the OIG that because he indicated "adjusted status" in the referral report, he likely believed that Atta's change of status application had been approved. We do not know how the secondary inspector could have come to that conclusion because the request had not been approved at that time and INS databases would not have reflected the approval until many months later.
The secondary inspector told the OIG that he likely admitted Atta because he believed Atta was a legitimate student, had no criminal record, and had not been an overstay on his last visit. The secondary inspector explained that he must have concluded from all of the circumstances that, even though Atta would be attending school while in the country, Atta's primary purpose was that of pleasure and that Atta therefore fit within the B-2 category. He said that even if he had believed that Atta had only filed for a change of status but had not yet been approved, he would have likely concluded that Atta was a legitimate student who was also entitled to be admitted as a B-2 visitor.
The secondary inspector added that even if Atta had told him that his primary purpose for coming into the United States on this occasion was to go to school full-time (in other words, that his purpose did not match the purposes allowed under the B-2 category), Atta would not likely have been denied entry for failing to have a student visa. He said that under these circumstances - that Atta intended to enter as a full-time student, had a B-1/B-2 visa, and evidenced no other basis for exclusion - he would have presented the issue to his supervisors. According to the secondary inspector, his supervisors would not have supported a recommendation to deny Atta entry since the Miami airport's practice was to use a visa waiver process to admit aliens who appeared to be legitimate students acting in good faith who did not possess the proper documentation. The secondary inspector added that supervisors discouraged preparing a case for adverse action in cases in which supervisors were certain to grant a visa waiver.
According to the secondary inspector and numerous inspections supervisors, before September 11 foreign students typically were not scrutinized closely because they were viewed as beneficial to the nation's schools and also were not viewed as a concern for illegally immigrating or working in the United States. Several INS inspectors told the OIG that the prevailing INS practice at that time was that students would not have been excluded for failing to have the proper documentation if they did not appear to have a criminal record or prior immigration violations. Rather, students who appeared to be legitimate students acting in good faith would be admitted through the visa waiver process. The secondary inspector who admitted Atta told the OIG that he did not feel compelled to admit students under an improper visa category. He said that it was his practice to determine, based on the circumstances of the particular student, whether the student could legitimately be admitted under the visa classification in his or her passport, which in this case was a B-1 or B-2 visitor.
- OIG analysis
From the available record, it appears that the primary inspector properly referred Atta in this encounter to the secondary inspection process since the primary inspector had learned from Atta that he intended to be a student, and therefore the inspector had concluded that further review was necessary to determine whether Atta should have had a student visa.
Atta's eligibility for entry by the secondary inspector depended on what Atta said was his purpose for entering the country. The secondary inspector explained that he must have concluded from all of the circumstances that, even though Atta would be attending school while in the country, Atta's primary purpose was that of pleasure and that Atta fit within the B-2 category. The secondary inspector correctly observed that a student can be admitted under the B-2 category if the educational purposes are "incidental" to the pleasure purposes. Therefore, if the inspector believed that Atta was not intending to attend school full-time (that is taking less than 18 hours of class time or less than 22 hours of flying time per week), admitting Atta as a B-2 visitor would have been appropriate.
The fact that the secondary inspector was aware that Atta had filed for a change of status, however, raises the question of whether the inspector incorrectly considered Atta's educational purpose as only being "incidental" to a pleasure purpose. Under immigration regulations, an alien cannot receive an M-1 visa or a change of status to an M-1 unless the alien intends to attend school on a full-time basis. Accordingly, the fact that Atta previously had requested a change of status to M-1 was at least an indicator that his purpose might not match the purpose for the B-2 visa thereby necessitating further inquiry by the secondary inspector. Because the secondary inspector does not recall the details of his conversation with Atta and because the written record is limited, we cannot reach a definitive conclusion whether the secondary inspector correctly or incorrectly assessed Atta's purpose based on the information available to him.
However, even if the secondary inspector had concluded that Atta intended to attend school on a full-time basis and therefore needed a student visa rather than the visitor visa, Atta likely would have been admitted by the secondary inspector's supervisors through the waiver process even though Atta was lacking the appropriate visa. 26 The majority of INS inspectors and managers who we interviewed at the Miami POE told the OIG that even if Atta should have had a student visa, they likely would have admitted him through the waiver process.
We therefore examined the circumstances under which the INS grants waivers. The waiver procedure allows aliens into the country even if they do not possess the proper paperwork. Section 212(d)(4) of the INA and the accompanying regulations provide that aliens may be admitted in the discretion of the INS if the aliens demonstrate that they cannot present the required documents because of an "unforeseen emergency." See 8 USC §1182(d)(4) and 8 CFR § 212.1(g). The phrase "unforeseen emergency" is not further defined in the statute or the regulations. The phrase "unforeseen emergency" is described in the Inspector's Field Manual as:
- An alien arriving for a medical emergency.
- An alien accompanying or following to join a person arriving for a medical emergency.
- An alien whose passport or visa was lost or stolen within 48 hours of departing the last port of embarkation for the United States.
INS officials from both the Miami and JFK POEs 27 agreed that, according to INA § 212(d)(4), discretionary waivers for aliens are based on "unforeseen emergencies." 28 These officials acknowledged, however, that Atta's situation would not have constituted an unforeseen emergency within the restrictive definition of that term. The training officer at JFK stated that over many years, INS inspectors have stretched the regulations "to the limit."
We found that neither port had any written policy that discussed scenarios that might constitute "unforeseen emergencies" that should result in a waiver or which discussed the limits on such waivers. INS personnel at both ports stated that, before September 11, 2001, their supervisors exercised significant discretion in granting waivers in a wide variety of circumstances. They said that waivers were granted when it appeared "equitable" to admit aliens who were not attempting to engage in fraud and who had made a good-faith effort to comply with the INS regulations. Some officials stated that their primary concerns were whether the alien had a criminal history, a history of overstays, or appeared to be attempting to commit fraud or to immigrate without an immigrant visa. They said it also helped the alien's case for a waiver if, despite missing documents, the alien also had attempted to comply with legal requirements in other respects (such as by filing an application for extension of stay or for a change in status).
The New York Area Port Director told the OIG that there were a number of options for dealing with alien students who were pursuing education, had financial resources, and had no negative criminal or immigration history. These options included granting a waiver, granting a 30-day deferral for the student to obtain a new I-20 if the defect involved a missing I-20, 29 or determining that the student fit within the broad scope of the B-1/B-2 classifications. He indicated that the last option would be to refuse entry and send the student home. Senior inspections officials in the Miami POE agreed that prior to September 11, 2001, the prevailing philosophy was to "find a way" to admit students like Atta or Alshehhi. 30
Accordingly, even if the secondary inspector had believed that Atta needed an M-1 visa, which he did not possess, Atta likely would have been admitted through the waiver procedure then in use at the Miami POE, even though the practice was not in accordance with INS policy.
- Effect of departure while change of status application is pending
We also investigated whether Atta's (and Alshehhi's) departures from the United States on more than one occasion while their I-539 applications were pending should have had any effect on their ability to re-enter the country. In the next chapter of the report, we discuss whether their departures should have had an effect on the adjudication of their I-539 applications.
INS personnel consistently reported to the OIG that aliens abandon their I-539 application if they leave the country while the application is pending. In addition, the OIG obtained a June 18, 2001, memorandum from Thomas Cook, Acting Assistant Commissioner for Adjudications, addressed to all Service Center Directors, District Directors, and Officers in Charge stating:
Service officers are reminded an alien on whose behalf a change of nonimmigrant status has been filed and who travels outside the United States before the request is adjudicated is considered to have abandoned the request for a change of nonimmmigrant status. This has been, and remains, the Service's long-standing policy. 
We sought to determine how this abandonment policy would affect the alien's re-entry into the United States. We found that the fact that the alien previously applied for a change of status and then abandoned that application by leaving the country does not automatically affect the alien's re-entry. According to representatives from FLETC (the training academy responsible for training immigration inspectors), the inspector's job is to determine the alien's intent at the time of entry, and this inspection is not necessarily affected by the fact that the alien previously requested a change of status and then abandoned that request. Inspectors and managers at the Miami and JFK POEs also stated that the alien's purpose at the time of entry was the determining factor. Inspection personnel indicated that if an alien stated that he or she was returning for the purpose of attending school full-time, then the alien would need either an F-1 or M-1 visa regardless of the status of the I-539. 32 But they also consistently indicated that the fact that an alien has previously filed a request to change his or her status to that of a student does not necessarily require the alien at the time of the next entry to have an F-1 or M-1 visa. If the alien no longer intended to pursue a "full course of study," the alien could be admitted on other grounds.
We explored the abandoned I-539 issue with respect to Atta's second entry, since the inspectors became aware that Atta had previously filed for a change of status. The secondary inspector told the OIG that he did not believe that Atta's I-539 application would have been abandoned by his departure from the country. Although this was an incorrect statement of INS policy, the inspector also stated that even if the I-539 petition had been abandoned, the fact that Atta had filed the I-539 application was still evidence that he was attempting to be a legitimate student, and his analysis and approval of Atta's admission would have remained the same. The other inspection personnel we interviewed also said that an abandoned I-539 application would not have changed their analysis that Atta was a legitimate student who would have received a waiver.
Although Atta's and Alshehhi's abandonment of their I-539 applications would not have formed the sole basis for excluding them at the time of re-entry into the country, we believe their cases also illustrate the fact that INS inspectors lack important information when assessing an alien's eligibility for admission into the United States. Primary inspectors are not made aware through automated checks whether an alien has a change of status application pending, as Atta and Alshehhi did when they each entered the country twice in 2001. If the primary inspectors had known this, they would have had reason to question whether Atta and Alshehhi in fact intended to continue to be students, had already completed their schooling and were returning for some other purpose, or were entering as visitors as indicated by their B-1/B-2 visas.
INS inspectors are also missing another piece of important information concerning students - whether they are, in fact, still going to school or have terminated their studies. The evidence shows that Atta represented to the primary inspector on this occasion that he had been in school for five or six months, and we found that the secondary inspector likely discussed Atta's attendance at Huffman Aviation once the secondary inspector was aware of Atta's I-539 application. But neither inspector was aware that Atta had in fact completed his schooling the month before in December, since the INS does not collect this information about foreign students.33
- Atta's length of admission
According to INS records in NIIS, on January 10, 2001, the secondary inspector admitted Atta as a B-2 visitor for 8 months, until September 8, 2001, rather than for the 6-month period regularly granted to B-2 visitors. It is not clear why Atta was admitted for this time period. 34
The 8-month B-2 admission was outside of the normal admission period according to officials at the Miami and JFK POEs and at FLETC. We received contradictory information, however, regarding whether this was an error by the secondary inspector. Two supervisors told us that Atta should not have been granted the extra two months and that the secondary inspector should have written on the I-94 why the extra time was being granted. Some INS officials said that supervisory approval was required to allow more than the 6-month admission. Other INS officials indicated, however, that the decision was within the inspector's discretion.
In any case, Atta's entry period was later changed to six months. On May 2, 2001, Atta went to the Miami District Office to inquire about extending the date of admission for a companion who also had entered the United States on a B-2 visa on January 10, 2001, but had been given only a 6-month admission instead of the 8-month admission given to Atta. Once at the District Office, Atta spoke to an immigration inspector who normally was assigned to work at the Miami airport, but who was working a 1-day detail at the District Office.
According to this inspector, Atta and his companion requested that Atta's friend's 6-month admission be extended to 8 months since Atta had received an 8-month admission. Atta showed the inspector his and his friend's I-94 and passport. The inspector told the OIG that she determined that since Atta was admitted to the United States with a B-2 visa, he should have been permitted to stay a maximum of six months. The inspector's supervisor at the District Office concurred and stated that if there was a good reason for an 8-month visitor visa, it should have been noted on the I-94. Therefore, to correct the mistaken 8-month admission for Atta, the inspector made a notation on the back of Atta's I-94 that an error had been made, sent this I-94 to the contractor who data enters information from the I-94, issued Atta a new I-94 with an admission date for six months until July 9, 2001, and noted in the "comments" section that the previous I-94 had been issued in error. 35
- Processing Atta at the POE
- Atta's third entry - July 19, 2001, Miami, Florida
Atta left the United States again from Miami International Airport on July 7, 2001, headed for Zurich, Switzerland. He re-entered the United States on July 19, 2001, at Atlanta Hartsfield International Airport, using his B-1/B-2 visa. The OIG confirmed that a "hit" or a "lookout" did not appear on the IBIS screen when the primary inspector swiped Atta's passport. 36 The OIG also confirmed that Atta was admitted through the primary inspection process and was not referred to secondary.
At the Atlanta airport, Atta was inspected by a primary inspector who had been employed with the INS as an inspector since 1997. This inspector told the OIG that he did not recall the inspection of Atta. Atta was admitted for four months, until November 12, 2001, as a B-1 visitor.
As noted previously, the B-1/-B-2 visa permits entry for either business (B-1) or pleasure (B-2) purposes. After the alien states his purpose for visiting, the inspector admits the alien under one of the two categories. It therefore appears that Atta stated some business purpose for visiting that fit within the B-1 category, even though his previous entries had been under the B-2 category. The inspector did not recall Atta or why he admitted Atta for a business purpose, and no INS record sheds further light on the reason for Atta's admission under a B-1 visa.
We also sought to determine whether the fact that Atta had recently entered the United States twice for six months on each occasion should have affected the inspection process. The OIG found no INS requirement or policy, written or otherwise, that an alien be referred to secondary based solely on the fact that the alien had departed and re-entered the United States recently on several occasions. We were informed by INS officials that multiple entries is but one factor the inspector uses in determining whether the alien appears suspicious or appears to be attempting to reside or work in the United States. Our review of the information available to the inspector does not reveal any basis for concluding his admission of Atta was improper.
- Atta's first entry - June 3, 2000, Newark, New Jersey
- Alshehhi's Entries into the United States
Marwan Yousef Mohamed R-Lekrab Alshehhi, born on May 9, 1978, was a citizen of the United Arab Emirates. Alshehhi held a United Arab Emirates passport, issued January 2, 2000, and valid until January 1, 2005. On January 18, 2000, Alshehhi was issued a B-1/B-2 visa at the United States Consulate in Dubai, United Arab Emirates. This multiple-entry visa was valid for 10 years, until January 17, 2010. Alshehhi used this passport and visa on each of his three entries to the United States, which we describe in turn.
We show a timeline of Alshehhi's contacts with the INS on the next page of the report.
- Alshehhi's first entry - May 29, 2000, Newark, New Jersey
According to INS records, on May 29, 2000, Alshehhi flew from Brussels, Belgium, to Newark International Airport in New Jersey. His arrival I-94 listed his country of citizenship as the United Arab Emirates and his country of residence as Germany.
The OIG confirmed that a "hit" or a "lookout" did not appear on the IBIS screen when the primary inspector swiped Alshehhi's passport. He was admitted through the primary inspection process as a B-2 visitor for six months and was not referred to secondary inspection.
The primary inspector who admitted Alshehhi had been employed with the INS as an inspector since May 1997. He told the OIG that he did not recall the inspection.
The inspector said that when encountering an alien with a B-1/B-2 visa and no prior entries recorded in his passport, he would have asked questions concerning the purpose of the trip, the anticipated length of the trip, who the alien would be visiting, where he would be staying, and the length of any previous trips to the United States (if the alien acknowledged prior visits). The inspector said that if the alien failed to answer these questions satisfactorily or if the alien's demeanor gave him any reason for concern, he would send him to secondary for further questioning. 37 The inspector said that Alshehhi must have represented that he was visiting the United States primarily for pleasure, since he admitted Alshehhi under the B-2 category for six months, until November 28, 2000.
Our review of the information available to the inspector does not reveal any basis for questioning his admission of Alshehhi. His passport and visa appear to have been valid, and there was no information available to the inspector through lookout checks that would have suggested that Alshehhi should be referred to secondary inspection.
- Alshehhi's second entry - January 18, 2001, New York, New York
Alshehhi (like Atta) enrolled in Huffman Aviation's professional pilot's program in August 2000 and filed an application with the INS for a change in status from visitor to student, which the INS received on September 19, 2000. On December 19, 2000, Alshehhi (like Atta) completed his flight training course.
On January 11, 2001, Alshehhi departed the United States from JFK Airport for Casablanca, Morocco. A week later, on January 18, 2001, Alshehhi returned to JFK Airport from Casablanca.
During this entry, Alshehhi presented the same passport and B-1/B-2 visa that he used on his first entry to the United States. Therefore, Alshehhi's passport should have indicated that he had departed the United States just seven days earlier, on January 11, 2001.
The OIG confirmed that a "hit" or a "lookout" did not appear on the IBIS screen when the primary inspector swiped Alshehhi's passport. On this entry, however, Alshehhi was sent to secondary and was admitted through the secondary inspection process as a B-1 visitor until May 17, 2001.
INS computer records (the INS referral report) contain the following reason for Alshehhi's referral to secondary: "SUBJ left one week ago after entry in May (2000). Has extension and now returning for a few more months." The referral report also notes a referral code of "03 Travel History/Routine." According to INS inspectors, this 03 code refers to nonimmigrants, and "Travel History/Routine" means that the nonimmigrant has no history of overstay. 38
The primary inspector who handled Alshehhi told the OIG that she recalled this entry. She said that based upon her recollection and the referral report, she referred Alshehhi to secondary because his lengthy prior stay and short absence as reflected in his passport suggested to her that Alshehhi was trying to "beat" the immigration system and was attempting to establish residence in the United States. She said that she felt that Alshehhi was probably living in the United States and had not bothered to obtain a proper visa.
The secondary inspector who interviewed Alshehhi had been an INS inspector for 23 years and had worked mostly as a secondary inspector since 1990. The secondary inspector told the OIG that he had a "vague recollection" of handling Alshehhi on January 18, 2001. He said that he thought that Alshehhi was polite during his inspection and was not confrontational in any way.
INS records show that Alshehhi was in secondary for 30 minutes. The secondary inspector estimated that he interviewed Alshehhi for a total of 10 out of the 30 minutes. The referral report reflects the following comments by the secondary inspector: "Was in US gaining flight hours to become a pilot. Admitted for four months."
The secondary inspector said that, although he had a vague recollection of Alshehhi, he did not recall the specifics of his inspection. Based on reading the referral from the primary inspector, the secondary inspector said he would have known that the primary inspector was suspicious of the length of Alshehhi's stay for pleasure on his prior visit and his immediate return to the United States after a 1-week absence. The secondary inspector said that based upon his own comments on the report, he also had learned that Alshehhi had already been attending flight school to become a pilot. The secondary inspector said that at a minimum he would have checked the NCIC database for criminal history and the NIIS database to check Alshehhi's prior entries. He said that he also would have checked CLAIMS, which would have confirmed that Alshehhi had filed the I-539 change of status application.
Based on his review of the record available now, the secondary inspector pointed to a number of reasons why he did not believe Alshehhi was attempting to illegally work or live in the United States indefinitely. He noted that Alshehhi had previously been admitted to the United States under a B-2 visa and then left the United States before he had to (given that he was permitted to stay in the United States while the I-539 was pending). In addition, Alshehhi had used the same passport and visa for both visits. The secondary inspector also noted that he did not see in the record any other indications of concern, such as being late for the course, lack of English skills, lack of a plane ticket to the site for the training course, or lack of money for school. He stated that he would not have considered the fact of Alshehhi's two admissions within a short time frame as significant, since most countries now issue visas for 10 years and aliens are entitled to come and go as they wish, as long as they do not overstay. According to the secondary inspector, under the circumstances, he did not consider that Alshehhi's behavior indicated an individual who was attempting to "play the system" and to live and work in the United States.
The secondary inspector admitted Alshehhi under the business visitor (or B-1) category. The secondary inspector indicated that he likely understood that Alshehhi was coming to the United States to log flight hours to become a pilot, not to go to school full-time. He said that the INS often admits individuals under B-1 visas for the purpose of attending seminars and training, including flight training. He said, for example, that the B-1 category is commonly used to admit aliens to take computer training in order to obtain a certification.
The secondary inspector's supervisor on January 18 had been an immigration inspector for seven years and a supervisory inspector for more than four years. 39 This supervisor told the OIG that he agreed with the secondary inspector concerning the appropriateness of admitting visitors for flight training under a B-1 visa.
The supervisor stated, however, that if Alshehhi had sought a B-1 admission specifically to continue flight training school to obtain a certificate, then the B-1 was the wrong category of admission and that he should have been required to obtain a student visa. The supervisor stated that absent any evidence of prior overstays or a criminal record, the alien would likely be given an I-193 waiver and temporary M-1 status while he remained in the country. The supervisor said that he probably would have supported a waiver because of all of the things the student did "right," including filing an I-539 and not overstaying on his previous visits. According to this supervisor, students are given the benefit of the doubt if possible. He said that the only way that they would be returned to their country would be if there were proof of malice and intent to deceive.
The secondary inspector admitted Alshehhi for four months, until May 17, 2001. The secondary inspector said that Alshehhi must have given a specific reason why he needed a 4-month stay in this country. According to the secondary inspector's supervisor, it was the port's policy to admit business visitors for a minimum of three months. He said that port policy allows for up to six months, at the inspector's discretion, if the alien presents a satisfactory reason.
Based on our review of the evidence available to the inspector, we concluded that his admission of Alshehhi was not contrary to INS practices at the time.
- Alshehhi's third entry - May 2, 2001, Miami, Florida
Alshehhi made his third and final entry to the United States on May 2, 2001, at Miami International Airport. He had left the United States from Miami on April 18, 2001, bound for Amsterdam, and he returned to Miami on May 2 from Amsterdam. He presented the same passport and visa as on the previous two entries.
The OIG confirmed no "hit" or "lookout" appeared on the IBIS screen when the primary inspector swiped Alshehhi's passport. He was admitted through the primary inspection process as a B-2 visitor for six months, until November 2, 2001.
The primary inspector who admitted Alshehhi had been an inspector since 1997. He told the OIG that he did not recall the inspection, and INS records do not indicate anything else noteworthy about the inspection.
The inspector told the OIG that the fact that Alshehhi had made two previous visits to the United States and stayed for several months on each visit would not have made any difference in his inspection. He said that in his estimate at least 50 percent of the passengers that he sees have a travel history or pattern similar to that of Alshehhi. He said that he would not have referred Alshehhi to secondary absent some kind of suspicious behavior or potential document fraud. Our review of the information available to the inspector does not reveal any basis for concluding his admission of Alshehhi was improper.
- Alshehhi's first entry - May 29, 2000, Newark, New Jersey
- OIG Conclusions on the INS's Admission of Atta and Alshehhi
Atta's and Alshehhi's three admissions into the United States followed the same pattern. They each held valid passports and B-1-/B-2 visas, good for multiple entries into the United States. The immigration inspectors who admitted them during their first and third entries did so routinely, without referring them to secondary inspection. Understandably, the inspectors had no memory of their encounters with Atta and Alshehhi, given the many inspections they have conducted since then. From the evidence, however, it appears that these inspectors did not admit Atta and Alshehhi in violation of INS policies and practices in light of the information available to the inspectors at the time of these admissions. We found no indication that the inspectors were presented with or were aware of any information that would have caused them to refer Atta and Alshehhi to secondary inspection.
However, after Atta and Alshehhi both left the United States in January 2001 and separately returned a few days later, they both were referred to secondary inspection for further questioning. It appears that Atta was referred to secondary because the primary inspector believed that Atta was attending flight school and that Atta should be referred to secondary for further questioning to determine if an M-1 visa was required.
The secondary inspector stated that he believed that Atta was a legitimate student who had no criminal record or history of overstays. He said that he would have admitted Atta under the B-2 category if he concluded that Atta's school attendance was incidental to a pleasure purpose. Atta's filing of an I-539 change of status application might have indicated that he was intending to attend school on a full-time basis. Because the secondary inspector does not recall what Atta said during the inspection and the written record is limited, we cannot determine what Atta represented about his school plans or whether the secondary inspector's decision to admit him was improper.
If the secondary inspector believed that Atta was returning to the United States to attend school on a full-time basis, the secondary inspector should have concluded that Atta needed an M-1 visa. INS personnel to whom we spoke asserted, however, that even though Atta did not have an M-1 visa, it is likely that he would have been admitted through the waiver process. They contended that because Atta had no record of prior criminal or immigration violations and had made a good-faith attempt to change his status to an M-1 classification, INS supervisors likely would have admitted him through the waiver process.
While this appears to be an accurate assessment of how the INS treated applicants like Atta at the time, the legal requirements for granting a waiver to Atta were not met. Atta did not demonstrate "an unforeseen emergency" as to why he did not have the M-1 visa, which the INS regulations require for such waivers. Yet we were told that prior to September 11, INS inspectors did not typically enforce this requirement when granting waivers, so it is likely that Atta would have been admitted regardless of what the secondary inspector concluded about his school plans.
A similar analysis applies to Alshehhi's second admission to the United States in January 2001, under the B-1 (business) visa classification. If Alshehhi stated that he intended to attend flight school full-time, he needed an M-1 visa for admission to the country or a waiver. On the other hand, if Alshehhi stated he was coming to the United State to log flight hours, he was admissible under the B-1 business visa that he received. The INS's referral report does state that Alshehhi "was in the US gaining flight hours to become a pilot." Based on our review of this evidence, we concluded that his admission of Alshehhi was not contrary to INS practices at the time. However, even if the secondary inspector had determined that Alshehhi required a student visa, it is likely that Alshehhi, like Atta, would have received a waiver to enter the United States.
The INS's prevailing mindset in dealing with foreign students at the POEs until September 11 was that students were not a concern or a significant risk worthy of special scrutiny. Consistent with this approach, INS inspectors and supervisors, who incorrectly believed that they had broad discretion to grant waivers, would admit students through the waiver process when they appeared at POEs without the proper documentation and did not present any evidence of inadmissibility. Since September 11, the INS has issued guidance to the field restricting use of the waiver process and has also taken other steps to more closely scrutinize the admission of students to the United States. We discuss those steps in Chapter Seven of this report.
- The Port Director reports to the Assistant District Director for Inspections, whose office is usually located in the district office of the district that covers the geographic location of the airport. The Assistant District Director reports to the Deputy District Director, who reports to the District Director.
- The I-94 is a two-part, two-sided perforated form. The top part of the form is used to record an alien's arrival information, and the bottom part of the form is used to record an alien's departure from the country. The alien records certain identifying information on both parts of the form. Each I-94 form contains a unique admission number printed on both portions that the INS uses to record and match the arrival and departure records of nonimmigrants. A blank I-94 is included in the Appendix at page A-1.
- If the visa or passport is not encoded for machine reading, the inspector should enter the biographical data manually into the system.
- In some instances, the automated checks against the information in IBIS occur before the passengers arrive in the United States. Through the Advance Passenger Information System (APIS), certain identifying information about airline passengers is collected from airlines before the passengers arrive in the United States. The information in APIS is then checked against the IBIS databases. These checks are completed before the passengers land in the United States. If a hit or a lookout is found, this information is stored in IBIS. When the inspector swipes the passport, the hit or lookout is presented automatically on the primary inspector's screen.
- The arrival I-94s are collected and mailed from the POE to an INS contractor for data entry. The alien's identifying information, including the admission number and the date of arrival, is eventually uploaded into the Nonimmigrant Information System (NIIS), the INS's primary database for tracking the entries and exits of aliens in the United States.
- The airlines collect the departure I-94 forms and send them to INS staff at the airport. The INS sends the departure I-94s to a contractor for data entry, and the recorded information is eventually uploaded to NIIS. Before September 11, 2001, I-94 forms were mailed via the United States Postal Service to the contractor. Since September 11, 2001, these forms have been sent by express courier within two days for entry by the contractor. The OIG concluded in a previous review that the INS did not have an effective system in place for obtaining departure I-94s from airlines and that the INS should take immediate action to improve the collection of these forms. See "[INS] Monitoring of Nonimmigrant Overstays," Report Number I-97-08, September 1997. The OIG recently completed a follow-up to this review and concluded that the INS still has not taken effective action to improve the collection of I-94s, particularly departure records; the INS does not actively monitor airline compliance with the requirement to provide correct and complete departure I-94s; and the INS has not yet implemented regulations to fine airlines that fail to collect the departure I-94s. See "Follow-up Report on INS Efforts to Improve the Control of Nonimmigrant Overstays," Report Number I-2002-006, April 2002.
- Until recently, the INS was required by law to admit international passengers within 45 minutes of their arrival at the inspection process. 8 USC § 1356(g). The INS's Inspector's Field Manual states that in order to comply with this requirement, the INS has established inspector-to-passenger ratios as a guide to help ensure that waiting time for arriving passengers does not exceed 45 minutes. The Inspector's Field Manual states, "The normal staffing levels are: one inspector per 45 passengers on flights which are all aliens; one inspector per 100 passengers on flights which are all U.S. citizens and returning residents; and one inspector per 60 passengers on mixed flights." See Inspector's Field Manual § 22.1. The Enhanced Border Security and Visa Entry Reform Act of 2001 (H.R. 3525), which was approved by Congress and was recently signed by the President, repeals this section of the Immigration and Nationality Act.
- Even without a hit in the computer databases, the primary inspector's job is to determine if the alien has a valid passport, the proper visa, and that his or her purpose for entering the country matches the purposes allowed under the visa classification. According to managers and line inspectors we interviewed, the primary inspector needs only a suspicion of inadmissibility to send a passenger to secondary inspection.
- STSC is the Student and Schools System, an INS database that records information on the schools authorized to accept foreign students and information about nonimmigrants with student visas or student status. This database is discussed more fully in Chapter Six of this report.
- CLAIMS is the Computer Linked Application Information Management System that is used primarily to record the INS's adjudications of applications for benefits. CLAIMS is discussed more fully in Chapter Four of this report.
- If the secondary inspector develops reasonable suspicion that the alien has violated the INA or other federal statutes, the secondary inspector can detain the alien, search the alien's personal items without a warrant, place the alien under oath, and take a statement. Adverse action also may include temporary detention of the individual pending further inquiries or preparation of a criminal action.
- Even though Atta left the United States a month after his prior admission had expired, he did not overstay his prior admission. Because Atta had filed an I-539 on September 19, 2000, requesting to change his status from a visitor to a student, he was authorized to stay in the United States while his application was pending. The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996 provided for the automatic voidance of nonimmigrant visas in cases of overstays. But Section 212 of the INA provided that a person who has timely filed a request for a change of status is not considered "unlawfully present" and is in an authorized period of stay. 8 USC § 1182(a)(9)(B). In Section III B 3 of this chapter we discuss the effect of a nonimmigrant's departure from the United States while his or her I-539 application is pending.
- The waiver process includes filling out INS form I-193 and paying the prescribed fee, which at the time was $170.00 and has since been raised to $195.00. Secondary inspectors can initiate the waiver process but only with advance approval from a supervisor. If a secondary inspector presents a case to his or her supervisor recommending adverse action, and the supervisor believes that a visa waiver is appropriate, the supervisor can initiate the waiver process.
- Because Alshehhi entered through secondary inspection at JFK Airport, we discussed the issue of waiver with inspectors and supervisors there as well.
- One INS official in Miami incorrectly told the OIG that waivers also could be based on the Attorney General's discretion under INA § 212(d)(3)(B). This section provides for a limited waiver that applies only to individuals who are inadmissible on grounds related to criminal records, terrorist activities, health issues, security and related grounds, controlled substance trafficking, membership in a totalitarian party, and other related issues. Further, this section contemplates approval of the waiver by a consular officer overseas, pursuant to INS form I-192.
- Foreign students with a student visa must present not only their student visa but also their copy of the I-20 form in order to re-enter the country after a temporary absence. The second page of the I-20 form must be endorsed by an authorized school representative. If a nonimmigrant is in possession of the student visa but not the I-20, an inspector is permitted to admit the student for 30 days after completing INS form I-515. The student is required to obtain the necessary I-20 form or endorsement on the I-20, and to submit within the 30-day period the I-515, I-20, and I-94 to the INS office having jurisdiction over the school he or she plans to attend. Since Atta did not have a completed I-20 (his was awaiting processing), this procedure would not have been applicable to him.
- The New York Port Director told us that the practice of regularly granting waivers for aliens who forgot visas and even passports changed drastically after September 11, 2001. Former Executive Associate Commissioner for Field Operations Michael Pearson issued a memorandum to all ports on November 28, 2001, setting forth a new policy that severely restricted the granting of waivers. In the Appendix at p. A-2 we show a chart reflecting the decline in waivers at the JFK POEs after September 11.
- Beyond the Cook memorandum, we found no written record of this policy. The INA and immigration regulations do not address the effect of an alien's departure from the United States on the alien's I-539 application for a change of status or the alien's re-entry into the United States when that application is still pending at the time of the departure or re-entry. No one we interviewed could point to this policy in writing other than the Cook memorandum. The INS's Operations Instructions and the Inspector's Field Manual do not address this topic, and we were told by representatives of the Federal Law Enforcement Training Center (FLETC) that this policy was not in any training manuals used at FLETC.
- An alien must have an appropriate visa (or a waiver) at the time of entry. An application for a change of status is not a visa. Indeed, even an approved I-539 change of status is not a visa. Therefore, an alien who has never filed for a change of status, an alien who has filed an I-539 but abandoned the petition by departing, and an alien who has been granted a change of status are essentially the same for purposes of re-entry.
- We discuss this issue and other problems in the INS's foreign student program in more detail in Chapter Six of this report.
- Atta's departure I-94, which we obtained from the contractor, shows a stamp authorizing admission until February 9, 2001. That date is crossed out and what appears to be another date is handwritten underneath the stamped date. The handwritten date is difficult to read, however, and could be interpreted as authorizing Atta's entry until September 2001 or July 2001. We believe that the likely scenario is that the primary inspector initially authorized Atta to stay until February but then decided to send Atta to secondary. The secondary inspector then handwrote the actual admission date after interviewing Atta. Because the INS computer system reflects that Atta was authorized to stay until September, it appears that the handwritten date was interpreted to indicate a September date. The secondary inspector was unable to identify the handwriting, tell the date that was written on the form or recall other details to assist us in interpreting the handwriting. In any case, Atta's admission date was subsequently changed to July 2001 (for reasons that we discuss below).
- When we reviewed INS records, they appeared to reflect two entries by Atta into the United States on January 10, 2001, which initially raised a question as to whether Atta had entered twice on the same day or whether a second person posing as Atta also entered on January 10, 2001. The NIIS printout for the first entry reflects that Atta entered with an admission period of January 10, 2001, to September 8, 2001 (admission number 68653985708). The second record reflects a second entry on January 10, 2001, with an admission period from January 10, 2001, to July 9, 2001 (admission number 10847166009). However, this occurred because the inspector at the Miami District Office who changed Atta's admission date failed to follow the proper procedure to ensure that the previous entry would be corrected, and a new entry was created in NIIS. The inspector sent the old I-94 and the corrected I-94 to the contractor which data enters I-94s for the INS. The May 2, 2001, transaction with Atta was data entered and then uploaded to NIIS as if it were a new entry by Atta. This happened because the inspector issued a new I-94 with a new admission number on it. To prevent two entries from occurring in NIIS, the inspector should have crossed out the admission number on the new I-94, made a reference to the previous admission number and noted that it was not a new entry.
- The OIG obtained an FBI document indicating that Atta was issued a citation for a traffic violation in Fort Lauderdale, Florida, on April 26, 2001, and that a warrant for his arrest was issued on June 4, 2001, for failing to appear in court. The evidence shows, however, that this information would not have appeared on the IBIS screen of the primary inspector.
- The primary inspector told the OIG that Alshehhi's country of citizenship, the United Arab Emirates, was not at the time of special interest to the INS and that, because it was not, Alshehhi did not warrant additional scrutiny.
- Alshehhi, like Atta, left the United States a little more than a month after his prior admission period had expired on November 28, 2000, but he did not overstay since he filed an I-539 on September 19, 2000, prior to the expiration of his admission period.
- The supervisor did not encounter Alshehhi on this occasion.
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