Visa Waivers and Immigration Fraud in Terrorism Prosecutions

Gubernatorial and presidential candidate fretting about refugees, and House passage last week of a bill aimed at effectively halting resettlement of Syrian refugees in the United States, has the country in a frenzy about migration and terrorism. Steve has already written about the law of federalism and refugees. Ben has waxed indignant about the vocabulary of our national refugee conversation. And this week’s Sunday talk shows were full of conversation about refugees and the bigger problem of the Visa Waiver Program.

Linking immigration to national security threats is not, in itself, crazy. Denying refuge to tens of thousands of innocent people in desperate need based on no known link to bad actors is certainly the wrong answer. But terrorists do try to come here, and it’s worth considering how to responsibly address this problem.

Here are a few additional notes on immigration law as it relates to national security and terrorism that may be useful in determining the best approach.

The Visa Waiver Program (VWP) issue is not new, and it did not arise simply as a White House effort to deflect attention from refugees. For years, SSCI ranking member Dianne Feinstein (D-CA) has been sounding the alarm on the risks posed by the VWP. The program allows the citizens of 38 designated countries to enter the United States for tourism or business for up to 90 days without obtaining a visa. In 2013, over 21 million people entered the United States under the VWP. For context, fewer than 70,000 individuals entered as refugees that same year.

Senator Feinstein first introduced legislation on the issue back in 2009. As recently as January of this year, she called the VWP the “Achilles’ heel of America.” She has announced plans to introduce a bill to make any individual who has traveled to Syria and Iraq within the last five years ineligible for the VWP. It is worth waiting to analyze this proposal in any detail until she releases the text of her bill, but we can say a few things up front. First, ineligibility for VWP does not equate to a ban, either in principle or in effect. It would simply mean that an individual wanting to enter to United States would need to obtain a visa–with commensurate security screenings–in the same manner that citizens of non-participating countries must.

Second, Feinstein’s proposal does have potential downsides. One, it will inevitably carry some economic cost both in lost travel, business, and tourism revenues and in the increased cost of administration. In addition, any way you slice it, this solution involves singling out individuals for different treatment from their fellow citizens based on mere contact with a particular country. This is uncomfortable because the vast majority of individuals impacted will have travelled to Syria or Iraq for entirely innocent reasons; to visit family, to conduct business, or perhaps even to participate in humanitarian efforts. Still, this proposal may serve as a good starting place for a conversation about whether our admissions policies are appropriately tailored after Paris.

The trouble, of course, is that even a scaled back VWP would let in a lot of people without much screening. And even if we abolished the VWP altogether, the screening associated with issuing a visa is nothing like the screening that already exists for potential refugees. To a large extent, the system is only as good as the answers provided on immigration forms. The law has a weird stopgap to address this problem, at least retrospectively.

Under the VWP, in lieu of a visa, individuals apply for Electronic System for Travel Authorization (ESTA), which is administered by DHS. One question on the ETSA has long provoked confusion and ridicule from foreign visitors, who are asked: “Do you seek to engage in or have you ever engaged in terrorist activities, espionage, sabotage, or genocide?”

On its face, the question seems absurd. Who exactly would check “Yes?” But that question misses the point. Some variation of the ETSA terrorism question shows up on virtually all immigration documents, and forms for refugee and asylum status probe the issue in significantly more depth.

The reason lies in 18 U.S.C. 1546, entitled “Fraud and misuse of visas, permits, and other documents,” which holds that any person who “knowingly subscribes as true, any false statement with respect to a material fact in any application, affidavit, or other document required by immigration laws or regulations” faces 10 years in prison as a general offense, and a maximum of 25 years in prison if “the offense was committed to facilitate an act of international terrorism (as defined in section 2331 of this title).”

A bit of free legal advice for current or would be terrorists: Yes, your past or intended participation in terrorism, espionage, sabotage, or genocide qualifies as a material fact under this statute. If you check no, and that is not true, you have committed a felony punishable by up to 10 years in prison. The sentencing enhancement for facilitating acts of international terrorism was added to the code as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. So if the reason you lied was in order to facilitate terrorism, you’re in real trouble.

Somewhat surprisingly, the Justice Department does not use §1546 all that often in terrorism indictments. One reason is that the department tends to charge these cases using the material support laws as its bread and butter charges. But it probably also reflects the fact that visa fraud just isn’t that common an element of terrorist conspiracies in the United States. Consider that the base offense –to knowingly make a false statement of material fact—is not difficult to prove, and the corresponding sentence constitutes a real incentive for defendants to plead or otherwise cooperate. In non-terrorism contexts, district courts have held that each form can serve as the basis of a separate count of violating 1546(a), even if the material misstatement is the same on all forms and the forms are all filled out at the same time. From a prosecutorial standpoint, that means a lot of bang for your buck. You’d think that if a whole lot of terrorists were lying on immigration forms, we would see it in many indictments.

And to be sure, the charge sometimes does show up. Those seeking to stanch the flow of refugees make much of two Iraqi refugees who pled guilty to terrorism charges in Kentucky. Two counts of a superseding indictment against conspirator Mohanad Hammadi were based on violations of Section 1564(a). From the Sixth Circuit appeal:

In Iraq, as Hammadi would later tell the CHS and the FBI, he had participated in approximately ten IED attacks on American troops and convoys with at least two different cells, including al Qaida. Hammadi had been arrested for one of the IED attacks, but bribed his way free and fled to Syria. Once in Syria, he applied for refugee status in order to immigrate to the United States. On March 1, 2009, in a “Sworn Statement of Refugee Applying for Admission into the United States form,” Hammadi answered “no” when asked if he had engaged in terrorist activity before. Presentence Report (“PSR”) at 13, ¶¶ 41–42. Similarly, in December 2010, when asked on his application for a green card if he had engaged in terrorist activity, Hammadi answered “no.” These two answers represent the conduct charged in Counts 11 and 12 in the Superseding Indictment.

Hammadi pled guilty to all charges but later appealed his sentence to the Sixth Circuit, on the basis of sentencing entrapment and sentencing manipulations (theories under which the defendant is entitled to a lighter sentence because the government has induced the defendant to commit a more serious crime than otherwise predisposed). Hammadi lost, but had he prevailed, the §1546 charges would still have stood because they do not implicate entrapment issues. Including §1546 charges thus served in this case—and presumably in others—as a reliable backstop against procedural and constitutional challenges.

Including immigration fraud charges in terrorism trials also provides the government other practical benefits. Consider Sameeh Hammoudeh, who was charged in US District Court in Florida on eight counts including conspiracy to support a foreign terrorist organization and conspiracy to murder and maim abroad. The original indictment included a count of violating §1546 to facilitate an act of international terrorism. Hammoudeh was acquitted (his alleged co-conspirator Sami Al-Arian ultimately pled guilty on related counts). Before trial, however, Hammoudeh pled guilty to the visa fraud and agreed to deportation as a condition of the plea. Upon acquittal–though not before some ugly immigration proceedings–Hammoudeh was deported to Jordan. Had the government not included the §1546 count, it might have lacked any basis to remove him from the country.

There are a number of other examples of §1546 indictments related to terrorism. But nearly all serve to underscore the ease of the particular charge. In U.S. v. Nuradin Abdi, the Southern District of Ohio held that the indictment does not even need to specify the activities constituting “an act of international terrorism.” Rather the government can allege the defendant committed the visa fraud in order to facilitate an act of terrorism, without needing to specify “the act [of terrorism], the intended consequence of the alleged act, or where the alleged act occurred.” Upon losing his pretrial motion challenging the §1546 indictment, Abdi pled guilty to a material support charge, was sentenced to nine years, and was deported to Somalia in 2012.

Similarly, in 2013, the United States Attorney’s Office for the Southern District of New York charged Ahmed Abassi with two counts of knowingly making false statements in an application to immigration authorities in order to facilitate an act of terrorism. Facing two counts subject to the 25-year enhancement, Abassi pled guilty to lesser violations of §1546 without reference to terrorism. The judge sentenced Abassi to the 15 months time served and Abassi agreed to be deported to Tunisia.

In short, this is a pretty robust tool, but it is an entirely retrospective tool. That is, it doesn’t stop potential terrorists from coming into the country. It merely makes it easier to imprison and deport them when they do. On the other hand, it should give us at least a little confidence that our immigration and visa system isn’t quite the impending disaster of Donald Trump’s imagination. Common sense indicates that if vast numbers of immigrants and visitors—refugees or otherwise—with ties to terrorism or concealing their identities were entering the country and attempting to commits acts of terrorism, it would be reflected in the numbers. And it isn’t.

If congressional action these days is a scarce and limited resource, its efforts in this arena need to be aimed at the real issues. And the real issue is how to strike the appropriate balance between facilitating access to the United States—thus obtaining tremendous economic and cultural benefits—and rigorous security measures which inevitably make entry more difficult. For some group of people, we essentially take them at their word based on answers in immigration documents. For others, we solicit those answers but independently verify to the best of our ability. Thus far, we’ve attempted to strike the balance by differentiating between groups of people based on nationality and their purpose in entering the country. Feinstein and others suggest it is time to reevaluate how we determine the groups and closely consider who we can afford to take at their word. Emerging threats need to be addressed, but the data thus far might indicate the current system isn’t so far off.