Updated March 15, 2005

In late 2004 and early 2005, Members of Congress, including influential House Judiciary Committee Chairman James Sensenbrenner, initiated an aggressive campaign to alter the current system by which the United States government grants political asylum to refugees. The reforms proposed in Congress purported to be based on the findings of the independent 9/11 Commission and were presented as absolutely essential to safeguard America from terrorists.

While the array of proposed changes to the asylum system presented during this period would create many new barriers to refugees seeking asylum in the United States, they are not justified by the facts. The proponents of these changes misrepresent the findings of the 9/11 Commission, the small number of cases of terrorists or alleged terrorists who have any link to the asylum system, and the existing safeguards that promote the security of U.S. asylum processing. This report addresses these three areas of misrepresentation.

The 9/11 Commission Report: Not a Basis for Asylum Restrictions
The final report of the National Commission on Terrorist Attacks upon the United States (“9/11 Commission”) reviews the consular processing and immigration histories of the 9/11 terrorists and makes a series of recommendations designed to guard against future attacks. Despite the fact that this report is relied upon to support new restrictions on asylum, it in fact demonstrates that none of the 9/11 terrorists were asylum seekers or refugees, and makes no specific recommendations on changes needed in the asylum system. References to asylum from the 9/11 Commission are limited to historical reviews by Commission staff of earlier terrorism cases where individual terrorists – who were already present in the country – applied for asylum at a time prior to major reform in the mid-1990s. These changes fundamentally altered the system and so references to the cases, while important historically, are not relevant to challenges to current asylum policy.

Furthermore, the 9/11 Commission affirmatively argues that:

“Our borders and immigration system, including law enforcement, ought to send a message of welcome, tolerance, and justice to members of immigrant communities in the United States and in their countries of origin. We should reach out to immigrant communities. Good immigration services are one way of doing so that is valuable in every way—including intelligence.” (Full Report, page 390)

The type of immigration system envisioned in the preceding quotation stands in direct contradiction to the proposed new restrictions on asylum applicants.

The Cases: No Evidence of a Crisis in the U.S. Asylum System
Contrary to the assertions of proponents of asylum reform in 2004 and 2005, the cases of individual terrorists or alleged terrorists do not justify the conclusion that today’s asylum system is an open door for terrorism.

A central fact ignored by these Members of Congress and other immigration restrictionists is that the U.S. asylum system underwent extensive alteration and reform in the mid 1990s. These changes – implemented both by the Administration and the Congress – were taken to reduce the ability of applicants to take advantage of the system by filing frivolous asylum claims to get work authorization and then disappearing. More details on these reforms can be found in the next section of this report.

While the actions or alleged actions of the individuals listed below are horrendous, the cases presented to bolster the argument that there is a crisis in today’s asylum system do not support the claims. The most commonly raised cases are listed below, broken down into the following categories:

• Cases filed before the mid 1990s asylum reform where asylum was never granted – 7 Cases: Mir Aimal Kansi, Sheik Omar Abdel Rahman , Ahmad Ajaj, Ramzi Yousef, Gazi Ibrahim Abu Mezer , Abdel Hakim Tizegha, Hesham Hedayet, Muin Mohammad, Biblal Alkaisi.
• Case where the individual was cleared of terrorist activity before being granted asylum – 1 Case: Nasser Ahmed Kadri.
• Case where the individual was not granted asylum, no connection to terrorism has been proven and the individual denies involvement with terrorist activity – 1 Case: Shahawar Siraj.
• Case where the individual was granted asylum but no connection to terrorism has been proven and the individual denies involvement with terrorist activity – 1 Case: Nuradin Abdi.
• Cases filed before the mid 1990s asylum reform where asylum appears not to have been granted – 2 Cases: Muin Mohammad, Biblal Alkaisi.
• Post-reform cases where asylum was denied– 4 Cases: Eyad Mustafa, Hasan Yilmaz, Rabih Haddad, Abdelhaleem Ashqar.
• Case where asylum was granted, but later revoked, and there is only a vague allegation of terrorist connections, no terrorist prosecution and ultimate removal from the country –1 Case: Mohdar Abdullah
• Case where no evidence that asylum was granted – in fact the individual was identified as a U.S. citizen by the 9/11 Commission – and there is only a vague allegation of terrorist connections and no terrorist prosecution – 1 Case: Anwar Aulaqi

(1)has been convicted of a particularly serious crime, including any of the broad range of crimes designated as aggravated felonies under the immigration laws, and constitutes a danger to the community; or

(2) has committed a serious nonpolitical crime abroad; or

(3) is or may reasonably be considered a danger to the security of the United States; or

(4) has engaged in terrorist activity.

“asylum cannot be granted until the identity of the applicant has been checked against all appropriate records or databases maintained by the Attorney General and by the Secretary of State . . . to determine any grounds on which the alien may be inadmissible to or deportable from the United States, or ineligible to apply for or be granted asylum.”

Asylum applicants’ names and birth dates must be checked against legacy BCIS databanks now housed at the Department of Homeland Security as well as databanks operated by the FBI, the State Department, and the CIA. Applicants’ fingerprints are also taken and sent to the FBI for a criminal background check, which includes comparing the applicants’ fingerprints with all arrest records in the FBI’s database. Finally, a special immigration database, IDENT, compares each applicant’s fingerprints against those of all others who have applied since 1998, to prevent people from thwarting the system by applying more than once under different names.

1. Database Checks – The INA requires that checks be carried out in specific databases.

Pursuant to this law, it has been determined that three databases, which were previously BCIS databases and which continue to be operated by immigration authorities now within the Department of Homeland Security, must be checked. These databases are: 1) CIS - Central Index System; 2) DACS - Deportable Alien Control System; and 3) NAILS - National Automated Immigration Lookout System. CIS and NAILS provide information about an individual’s immigration history, including file location, applications for benefits, and detention and deportation issues. NAILS is an inter-agency database that includes important data from the Department of State and other agencies, including information about suspected terrorists. NAILS includes information on people who have been placed on “lookout” because: “(1) there is confirmed case information that may exclude the individual from entering the country; or (2) there is potential information, which the agency is seeking to confirm, that may exclude the individual from entry into the country.

An additional database known as IBIS – Interagency Border Inspection System – must also be checked. This database was initially developed by the United States Custom Service and is also now housed within the Department of Homeland Security. This inter-agency database contains law enforcement data, such as information on wanted persons, missing persons, stolen property, criminal history, criminal investigations, terrorists and foreign fugitives.

In addition, immigration authorities send information regarding all asylum applicants to the FBI. The FBI then conducts a name and date-of-birth check against its databases. Immigration officials must obtain the results of the FBI checks by accessing a database known as FBIQuery. Finally, information regarding all asylum applicants is sent to the CIA to be checked against that agency’s databases.

These various databases generally allow immigration officials to search by date of birth, by exact name, by “sounds like” or similar names, by alias, by case number and by other text information.

2. Fingerprint Checks

Asylum applicants must also be fingerprinted, and their fingerprints must be submitted to the FBI for a “background/security check” which includes comparing the fingerprints with those in all arrest records in the FBI database. Before granting asylum, the results of this fingerprint check must be obtained by using FBIQuery. Asylum applicants’ fingerprints may also be compared against other databanks, such as those of INTERPOL. The only exceptions are for: 1) applicants under 14; 2) applicants over 74, who submit a sworn statement; and 3) applicants with disabilities that make fingerprinting impossible or whose prints are deemed unclassifiable by the FBI. All of the applicants still must be submitted for name and date-of-birth database checks.

3. IDENT Database Checks

Finally, immigration officials adjudicating asylum cases use a special database, called IDENT, to compare the fingerprints of applicants appearing before the Asylum Office against those of others who have applied for asylum in order to thwart an attempt by an individual to apply for asylum using a different name. IDENT also contains two additional sets of information, known as Lookout and Recidivist databases. These two additional databases include information about individuals who have been convicted of certain crimes that would result in exclusion or removal and contain data regarding the immigration history of persons applying for benefits.

4. Procedures Ensure Rigid Application of these Security Checks

Each of these security checks must be conducted for all asylum applicants, whether they apply for political asylum affirmatively (i.e. by presenting themselves to the Bureau of Citizenship and Immigration Services with an application for asylum) or in Immigration Court (i.e. by requesting protection from removal on asylum grounds).

In the affirmative asylum process, procedures forbid an asylum officer from issuing a final approval of an asylum application, until after receiving the results of all of the fingerprint and database checks described above, with the exception of the CIA security clearance. The CIA security clearance must be requested but need not be received for a grant of asylum to be issued. Similarly, when an Immigration Judge grants political asylum in Immigration Court, all of the security checks must be conducted before an individual may be given immigration documentation establishing his political asylum status.

D) Potential Reforms to Further Enhance Security in the Asylum System
Currently U.S. law permits only 10,000 individuals granted asylum to adjust their status to lawful permanent resident each year. This policy stands in stark contract to the more appropriate and generous policy towards refugees admitted from abroad who may adjust their status without numerical restrictions. If Congress ultimately decides to eliminate the annual asylee adjustment cap it would not only move asylees closer to US citizenship and full integration into American society, but would also involve updated security checks. These would include: the FBI fingerprint check (10 print check for past criminal history), the FBI name check, and the Interagency Border Inspection System (IBIS) check which includes the Department of State’s TIPOFF database, and the FBI’s National Crime Information Center (NCIC) database along with 18 other programs, and internal BCIS legacy systems. These measures would help to identify any individual threat who either misled the authorities when receiving asylum or only came to the notice of authorities after receiving status. Reform of the asylum adjustment system can play an important role in enhancing both the security and humanitarian aspects of the U.S. asylum system.

Political asylum can be granted to aliens who demonstrate persecution or a well-founded fear of persecution based on race, religion, nationality, political opinion, or membership in a particular social group.

Deborah E. Anker, Law of Asylum in the United States , at 416-417.

INA § 208(b)(2)(A)(ii) – (iv).

INA §208 (d)(5)(A) (ii)-(iv).

Asylum Manual, at 3.

8 U.S.C § 1225.

See BCIS Internal Guide, Asylum Identity Checks Quick Reference Guide (February 1998) [hereinafter Asylum Checks Guide]; Office of International Affairs Asylum Division, Affirmative Asylum Procedures Manual (February 2003) [hereinafter Asylum Manual].

Asylum Manual, at 4.

Asylum Manual, at 95-96; Asylum Checks Guide.

INA § 208(d)(1); Asylum Manual, at 97-108.

Asylum Checks Guide; Asylum Manual, at 97-108.

Asylum Manual, at 11.

INA §208 (d)(5)(A)(i); Asylum Manual, at 93.

INA §208 (d)(5)(A)(i); Internal Memo, Change in Process Procedures for Applicants Granted Asylum by the Immigration Judge (June 2004).