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82–238 PDF 2002

IMMIGRATION AND NATURALIZATION

SERVICE’S (INS’S) INTERACTIONS WITH

HESHAM MOHAMED ALI HEDAYET

HEARING

BEFORE THE

SUBCOMMITTEE ON IMMIGRATION, 

BORDER SECURITY, AND CLAIMS

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES

ONE HUNDRED SEVENTH CONGRESS

SECOND SESSION

OCTOBER 9, 2002

Serial No. 110

Printed for the use of the Committee on the Judiciary

(

Available via the World Wide Web: http://www.house.gov/judiciary 

(II)

COMMITTEE ON THE JUDICIARY 

F. JAMES SENSENBRENNER, JR., WISCONSIN, Chairman 

HENRY J. HYDE, Illinois 

GEORGE W. GEKAS, Pennsylvania 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

BOB BARR, Georgia 

WILLIAM L. JENKINS, Tennessee 

CHRIS CANNON, Utah 

LINDSEY O. GRAHAM, South Carolina 

SPENCER BACHUS, Alabama 

JOHN N. HOSTETTLER, Indiana 

MARK GREEN, Wisconsin 

RIC KELLER, Florida 

DARRELL E. ISSA, California 

MELISSA A. HART, Pennsylvania 

JEFF FLAKE, Arizona 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

JOHN CONYERS, JR., Michigan 

BARNEY FRANK, Massachusetts 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

TAMMY BALDWIN, Wisconsin 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California

PHILIP G. KIKO, Chief of Staff-General Counsel 

PERRY H. APELBAUM, Minority Chief Counsel 

SUBCOMMITTEE ON IMMIGRATION, BORDER SECURITY, AND CLAIMS

GEORGE W. GEKAS, Pennsylvania, Chairman

DARRELL E. ISSA, California 

MELISSA A. HART, Pennsylvania 

LAMAR SMITH, Texas 

ELTON GALLEGLY, California 

CHRIS CANNON, Utah, Vice Chair

JEFF FLAKE, Arizona 

J. RANDY FORBES, Virginia 

SHEILA JACKSON LEE, Texas 

BARNEY FRANK, Massachusetts 

HOWARD L. BERMAN, California 

ZOE LOFGREN, California 

MARTIN T. MEEHAN, Massachusetts

GEORGE FISHMAN, Chief Counsel 

LORA RIES, Counsel 

ART ARTHUR, Full Committee Counsel 

CINDY BLACKSTON, Professional Staff 

HAROLD BOYD, Minority Counsel 

(III)

C O N T E N T S 

OCTOBER 9, 2002

OPENING STATEMENT 

Page 

The Honorable George W. Gekas, a Representative in Congress From the 

State of Pennsylvania, and Chairman, Subcommittee on Immigration, Border Security, and Claims ..................................................................................... 1

The Honorable Sheila Jackson Lee, a Representative in Congress From the 

State of Texas, and Ranking Member, Subcommittee on Immigration, Border Security, and Claims ..................................................................................... 2

WITNESSES 

Mr. William (Bill) R. Yates, Deputy Executive Associate Commissioner, Immigration Services Division, Immigration and Naturalization Service 

Oral Testimony ..................................................................................................... 5

Prepared Statement ............................................................................................. 7

Mr. Daniel Pipes, Director, Middle East Forum 

Oral Testimony ..................................................................................................... 10

Prepared Statement ............................................................................................. 11

Mr. Steven A. Camarota, Director of Research, Center for Immigration Studies 

Oral Testimony ..................................................................................................... 13

Prepared Statement ............................................................................................. 14

Mr. Paul Virtue, Hogan and Hartson, former General Counsel, Immigration 

and Naturalization Service 

Oral Testimony ..................................................................................................... 17

Prepared Statement ............................................................................................. 19

APPENDIX 

MATERIALS SUBMITTED FOR THE HEARING RECORD

Prepared Statement of the Honorable Sheila Jackson Lee, a Representative 

in Congress From the State of Texas, and Ranking Member, Subcommittee 

on Immigration, Border Security, and Claims ................................................... 35

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress From the State of Michigan, and Ranking Member, Committee 

on the Judiciary ................................................................................................... 36

Letter from Dan Stein, Executive Director, Federation for American Immigration Reform (FAIR) .............................................................................................. 37

Immigration and Naturalization Service Memo from Bo Cooper, General 

Counsel, U.S. Department of Justice, submitted by the Honorable Sheila 

Jackson Lee .......................................................................................................... 39

Immigration and Naturalization Service Memo from James W. Ziglar, Commissioner, U.S. Department of Justice, submitted by the Honorable George 

W. Gekas ............................................................................................................... 46

Alien File for Hesham Mohamed Ali Hedayet ...................................................... 47

(1)

IMMIGRATION AND NATURALIZATION SERVICE’S (INS’S) INTERACTIONS WITH HESHAM 

MOHAMED ALI HEDAYET 

WEDNESDAY, OCTOBER 9, 2002

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON IMMIGRATION,

BORDER SECURITY, AND CLAIMS, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to call, at 3 p.m., in Room 

2141, Rayburn House Office Building, Hon. George W. Gekas 

[Chairman of the Subcommittee] presiding. 

Mr. GEKAS. The hour of 3 having arrived, the Committee will 

come to order. Because the rules of the House, and, therefore, the 

rules of the Committee, require two Members to constitute a hearing quota, and quorum, and presence, we simply have to recess 

until a second Member should appear. In the meantime I have kept 

faith with my own self-inflicted directive to start every meeting on 

time. I have done that, and now I recess on time. 

[Recess.] 

Mr. GEKAS. The Chair notes the presence of the lady from Texas 

Ms. Jackson Lee, Congressman Forbes; thus we have a working 

quorum and a hearing quorum, and, therefore, we shall proceed 

with the hearing at hand. 

This hearing has been called, as everyone knows by now, to consider the interactions between the Immigration and Naturalization 

Service and Hesham Mohamed Ali Hedayet. This is the individual 

who, on July 4, 2002, at the Los Angeles International Airport, 

gunned down several people, killing two, and then being caught in 

fire himself whereby he perished. 

I asked the staff to determine what the present status of the victims or the families of the victims, and we know thus far that Mr. 

Aminov, the father of eight who was killed, left a wife Anat; and 

Ms. Hen, who died a day before a surprise party at which she was 

to become engaged, left other family members. We begin by entering into the Congressional Record our sympathies for the people 

left behind in this tragic event. 

Then, as I recall the sequence of events, on July the 8, not more 

than 4 days following this incident, I personally contacted or sent 

a letter to the Immigration and Naturalization Service asking for 

a full exposition on the case of Hedayet and how it came to be that 

he was there at that time, and how it came to be that he took it 

2

upon himself to rain terror upon the occupants of space at the Los 

Angeles International Airport. 

And then the other sequence of events that occurred, to the best 

of my recollection, in late July we received a modicum of information from and documentation from the INS leaving us still adrift 

as to the true picture of all that had occurred leading up to that 

incident, particularly with respect to the status of Hedayet. And 

then in August we began to pursue even more stringent measures 

to try to induce the INS to bring forth all that we requested by way 

of the background of this Hedayet. And then little by little, still not 

having received much definitive response after that late July flurry, the whole thing became noticeable and noticed by the Attorney 

General of the United States, who then, himself, directed full explanation—directed the INS to fully apprise us all of the true nature of the background of Hedayet, and that is where we are. 

We are worried about the failure of the INS, as we see it, to follow through with a series of red flags in our judgment that would 

have prompted a reasonably inquisitive INS to look into the background more thoroughly of Hedayet when Hedayet was in front of 

them. He was in front of them from the very first as a petitioner 

for asylum, an applicant for asylum, and that was a wonderful opportunity to try to pin down who this man was. After a process 

that took years actually, then a final determination was made that 

asylum could not be granted to this individual because he didn’t 

fall in the category of the five components of criteria of granting 

asylum, political affiliations, religious associations, et cetera, and 

that the criterion upon which he was refused asylum was one of 

incredible evidence or noncredible evidence, statements that he 

made during the interviews. 

These pose a lot of different questions considering what we have 

since learned about Hedayet himself, and that is what the purpose 

of this hearing is, to try to delve into how all of this came about. 

In my judgment, the testimony of the witnesses here today will 

lead us to determine whether or not we should be reopening the 

question of asylum and how it is—has become a part of the Immigration and Naturalization Service’s weaponry, and how best it can 

be used to make certain that those truly in danger if returned to 

their homes, their home countries, can be granted asylum; but on 

the other hand, that when there is any question at all, that process 

should bear down heavily on someone who seeks asylum and there 

is no justification for continuing to remain in the United States. 

These questions are yet to be inquired and will become undoubtedly the focal point of future endeavors by this Subcommittee to 

tune up the immigration and naturalization portion of our responsibilities. 

Mr. GEKAS. With that, I yield to the lady from Texas for an opening statement. 

Ms. JACKSON LEE. I thank you very much, Mr. Chairman. 

We do know that this country was founded on the attitude of 

welcoming those persecuted to come to seek an additional and expanded opportunity, and so over the original journey of history of 

this Nation, the United States has lived with immigration. It has 

lived with it in a most favorable light, first with the waves of European immigrants as they came in the 1800’s, and then as we moved 

3

into the 20th century and the large number of immigrants reflecting a more diverse parts—more diverse parts of the world. 

The INS has been the vehicle by which this country has documented its immigrants, using both the processes and the laws that 

are in place. It is the responsibility of this Committee, and I do 

thank the Chairman for an oversight hearing because, of course, I 

wish to offer my deepest sympathy to those individuals who lost 

their lives, particularly the victims of this very tragic and murderous act. 

At the same time, as we review the—either the obstacles or the 

need for reform of the diversity visa or the lottery visa, we need 

to ensure and be certain that the procedures followed by the INS 

were—my first gleaning of the processes used by the INS gives me 

at least minimal comfort that they followed the laws and procedures, and that in the instance of the perpetrator of this violent or 

these violent acts, that initially there was no information regarding 

any affiliations of this person. And so I think it is extremely important that we recognize the good and the bad. 

Just a year ago we were looking at opportunities to provide undocumented immigrants access to legalization, these immigrants 

who were hard-working, tax-paying individuals in this Nation 

doing the work that many Americans do not do, the yard work, the 

baby-sitting work, the bed-making work. In the twinkle of an eye, 

with the horrific tragedy of 9/11, we have changed both policy as 

well as common sense. 

I hope this hearing will err on the side of common sense, what 

happened, what were the facts and how can we correct what was 

wrong. I hope it will not err on the side of that all immigration is 

bad, that all processes and procedures that we now have in place 

that have been legitimately vetted are wrong, because I would offer 

to say that if we could take a massive polling, we would find that 

there are lower percentages of individuals who have been in this 

country who have been engaged in horrific acts against this Nation. 

We do realize we have turned the page and that homeland security is a priority for this Nation. In fact, it encourages me even 

more to want to focus on homeland security as opposed to the preemptive unilateral strike that we are debating now against the nation of Iraq. But we are in an immigration hearing, and I believe 

that our responsibilities today are to be corrective and to seek ways 

that we can ensure that the Nation remains a Nation true to its 

values, a Nation that adheres to the laws, but also recognizes that 

it is and has been a Nation of immigrants. 

There is no response to the victims, and we will certainly look 

to render to those victims justice, and that any systems that are 

broken we will fix, and we should do so. And I hope we can do so 

in a bipartisan manner. We will take an assessment on the procedures used by the perpetrator to achieve lawful permanent residence. That should happen, no doubt. We will follow chronologically 

the utilization of the asylum application process and then ultimately the use of the visa process that his wife won through the 

annual diversity lottery. That should be done. And finally the adjustment of status that was done through the INS. 

Each deserves scrutiny, but as they deserve scrutiny, I would 

offer to say that we should balance the scrutiny with our view of 

4

realizing that legal immigration is important, and legal immigration is here with us in the United States, and we should look to 

reform it and refine it if we can, but certainly not to abolish it on 

the grounds of incidents that may be few, if not tragic. I yield back. 

Mr. GEKAS. We thank the lady. 

Mr. GEKAS. The Chair will ask any other Member who has an 

opening statement to offer it for the record so we can proceed with 

the testimony at the hearing, and at the same time to acknowledge 

the presence of the gentleman from California Mr. Issa, the lady 

from Pennsylvania Ms. Hart, the gentleman from Arizona Mr. 

Flake, and the gentleman from Virginia Mr. Forbes, as we previously had said. 

Mr. GEKAS. We are prepared to hear the witnesses after a brief 

introduction thereof. Bill Yates is the—oh, we are going to start 

from my right and go over to the final witness in that direction. 

Bill Yates is the Executive Associate Commissioner for the Immigration Services Division at the Immigration and Naturalization 

Service. He has been with the INS since 1974. He was an immigration examiner both at district and regional level. 

In 1990, he came to Washington as a Director of the Organized 

Crime Drug Enforcement Task Force at INS. In this position he 

served as an advisor to then Attorney General William Barr. 

Between 1994 and 1997, Mr. Yates served respectively as the Director of the INS’s Vermont and California service centers. He returned to Washington, serving as the Acting Deputy Executive Associate Commissioner for INS field operations from 1997 to 1998 

before returning to Vermont as the INS’s Eastern Regional Director. 

He has been the Deputy Executive Associate Commissioner at 

the INS’s Immigration Services Division, and he received his bachelor’s degree from Seton Hall University. 

He is not yet joined at the counsel table by the purported second 

witness Mr. Pipes, who we will wait for his arrival before putting 

his introductory remarks into the record. 

And so we will proceed to introduce Mr.—Dr. Camarota, who has 

published widely on the political and economic effects of immigration in the United States. His articles on the impact of immigration 

have appeared in both academic publications and the popular 

press, including the Washington Post, Chicago Tribune, Social 

Science Quarterly and Campaigns & Elections. 

He received his bachelor’s degree from Juniata College. He was—

that is in Pennsylvania, in case anybody didn’t recognize it. He was 

awarded a master’s degree in political science by the University of 

Pennsylvania, which is recognized as a Pennsylvania institution; 

received a Ph.D. In public policy analysis from the University of 

Virginia, which is not a Pennsylvania institution. 

And he then will be followed by the testimony of Paul W. Virtue, 

the former general counsel of the INS, who is a partner in the 

Washington, D.C., office of Hogan and Hartson. Prior to going to 

this firm, Mr. Virtue served as the general counsel of the INS, the 

Agency’s chief legal officer. 

During his tenure with the INS, Mr. Virtue testified before Congress on numerous occasions as an expert on immigration law and 

on policy. He participated in drafting the immigration provisions of 

5

the NAFTA and provided legal advice regarding their implementation. Mr. Virtue represented the INS as a media spokesperson on 

numerous complex legal and policy issues and has been a frequent 

author and participated at legal and business conferences and seminars. He has a bachelor’s degree in pharmacy from West Virginia 

University and his J.D. From the West Virginia School of Law. 

Mr. Pipes has appeared at the counsel table, and we will be able 

now to enter into the record his vitae. Mr. Pipes is a Director of 

the Middle East Forum and a prize-winning columnist for the New 

York Post and the Jerusalem Post. He is frequently seen discussing 

current affairs on television, appearing on such programs as ABC 

World News, CBS Reports, Crossfire, Good Morning America, News 

Hour with Jim Lehrer, Nightline, O’Reilly Factor and The Today 

Show. He has lectured in 25 countries. 

In addition to television, Mr. Pipes has also published a number 

of periodicals including those in the Atlantic Monthly, Commentary, Foreign Affairs, Harper’s, National Review, New Republic 

and The Weekly Standard, and has written 11 books. Many newspapers carry his articles, including the Los Angeles Times, New 

York Times, Wall Street Journal, Washington Post and several 

other dailies. 

Mr. Pipes serves on the Special Task Force on Terrorism and 

Technology at the Department of Defense and sits on five editorial 

boards. He received his A.B. And Ph.D. From Harvard University, 

both of which emphasized history. 

And now we will begin the testimony with the customary statement to the witnesses that their written statement will be admitted into the record as written and submitted by the witnesses, 

without objection. And we will ask each witness to summarize that 

written statement through the course of 5 minutes that will be allotted to each as their testimony begins. 

We will begin then with our witness, William Yates. 

STATEMENT OF WILLIAM (BILL) R. YATES, DEPUTY EXECUTIVE ASSOCIATE COMMISSIONER, IMMIGRATION SERVICES 

DIVISION, IMMIGRATION AND NATURALIZATION SERVICE 

Mr. YATES. Mr. Chairman and Members of the Committee, thank 

you for this opportunity to share with you. 

Mr. GEKAS. Is your mike on? 

Mr. YATES. Okay. Can you hear me now? Yes. Okay. 

Mr. Chairman and Members of the Committee, thank you for 

this opportunity to share with you information resulting from the 

Immigration and Naturalization Service’s review of its interactions 

with Hesham Mohamed Ali Hedayet, the Egyptian immigrant who 

tragically killed two people at Los Angeles International Airport on 

July 4. 

My remarks will focus on three items. First, I would like to explore the question concerning whether INS could or should have 

known that Mr. Hedayet was a threat to public safety. Second, I 

will discuss the increased level of scrutiny that applicants for benefits receive today. Third, I will discuss issues that I believe need 

to be addressed to enhance public safety. 

We know several things based upon a review of Mr. Hedayet’s 

file. We know that he filed for asylum almost 10 years ago. We 

6

know that his application was denied, and that the denial was 

based upon his failure to establish a well-founded fear of persecution based upon his religion. We know that Hedayet told the asylum officer that he had been falsely accused of being a member of 

a terrorist organization. We know that the officer found it difficult 

to believe that Hedayet would have left his wife and son in Egypt, 

and that Hedayet wasn’t aware of the mistreatment of Coptic 

Christians in Egypt. 

We know now that at the time of his interview, Hedayet was concealing something; that his spouse and child had arrived in the 

United States just weeks before his March 30, 1993, interview. We 

know that the asylum officer found that inconsistencies in 

Hedayet’s statements called into question his credibility. 

What we also know is that no agency of the United States Government at any time during the past 10 years provided INS with 

any evidence that Mr. Hedayet was engaged in any form of criminal misconduct or that he was a threat to public safety. We know 

that during the past 10 years, INS took his fingerprints and forwarded those prints to the FBI; that INS forwarded his biographic 

information to the FBI and the CIA; and that INS sent a copy of 

his asylum application to the Bureau of Human Rights and Humanitarian Affairs. And we know that no agency provided derogatory information. Even today, after running comprehensive checks, 

including checks in the Interagency Border Inspection system 

known as IBIS, no evidence was located that suggests that this individual who resided peacefully in the United States for 10 years 

would suddenly commit such a horrible crime. 

Second, my review of this record disclosed processes that required strengthening. My written statement describes many of the 

improvements that INS has already implemented, but let me mention a few of the most critical improvements. First, reform of the 

asylum program and removal of the employment authorization 

magnet has dramatically reduced asylum fraud. Second, INS now 

has an outstanding electronic fingerprint system and a national 

policy that requires receipt of a response from the FBI before decisions are made in asylum, adjustment of status, temporary protected status or naturalization applications. Third, Commissioner 

Ziglar directed that all applicants for benefits be checked against 

the interagency border inspection system, and that no decision may 

be made on any application until those checks are completed. 

The final point I would like to make is that two critical public 

safety issues need to be addressed. The first issue concerns our 

lack of ability to identify all Government records for an individual 

because we lack a national biometric standard. 

The second issue concerns law enforcement and intelligence information. Earlier I listed checks that INS ran on Hedayet, how we 

sent fingerprints to one agency, biographic data to two, a copy of 

his application to another, and that we also ran recent checks in 

IBIS. Why do we run all those checks? We run multiple checks because no central depository for law enforcement and intelligence 

data exists. I would like to emphasize that the United States needs 

a comprehensive system that provides information to all law enforcement and benefit-granting agencies. The system needs to provide for background collection based upon a biometric identifier, as 

7

well as biographic information. Also the users of the system must 

be confident that all relevant information regarding that check has 

been disclosed. 

Mr. Chairman, that concludes my remarks. I will be happy to answer questions. 

Mr. GEKAS. We thank the gentleman. 

[The prepared statement of Mr. Yates follows:]

PREPARED STATEMENT OF WILLIAM YATES

Mr. Chairman and Members of the Committee: 

Thank you for this opportunity to share with you information resulting from the 

Immigration and Naturalization Service’s (INS’) review of its interactions with 

Hesham Mohamed Ali Hedayet, the Egyptian immigrant who shot and killed two 

people at Los Angeles International Airport on July 4, 2002. At the time of this 

tragedy, Mr. Hedayet was a lawful permanent resident of the United States. In December 1992, Mr. Hedayet filed an asylum application with INS. That application 

was denied in October 1995. Later, after his wife won a visa through the annual 

diversity visa lottery, Mr. Hedayet filed an adjustment of status application with 

INS. The INS interviewed him on this application and approved it in August 1997. 

Particular attention to the INS role in this case was prompted by reports that Mr. 

Hedayet claimed in an asylum interview with INS that he had been falsely accused 

of belonging to Gama’a al-Islamiyya. The Department of State designated Gama’a 

al-Islamiyya as a terrorist organization in 1997, almost two years after INS denied 

his asylum application. Before I begin an overview of Mr. Hedayet’s interaction with 

INS, I want to assure you a thorough review of all information available to INS 

about Mr. Hedayet’s background reveals no enforcement or intelligence information 

that he was ever associated with a terrorist organization, or had engaged in any 

criminal activity prior to July 4, 2002. In addition, based on a thorough review of 

Mr. Hedayet’s alien file, computer system records, and relating receipt files, INS has 

concluded that its decisions in connection with the asylum and adjustment of status 

applications were appropriate under the laws, regulations, policies and procedures 

in existence at the time. 

My testimony will outline how INS followed regulations and procedures in place 

at the time Mr. Hedayet’s applications were processed, and how INS has both improved processing procedures and strengthened security measures since then. However, it is important to understand that, even had Mr. Hedayet’s applications been 

processed under the improved procedures in existence today, the outcome may have 

been the same. The current procedures, however, provide for a more thorough investigation and more opportunities to scrutinize potentially problematic cases. 

As I noted, there was no evidence that Mr. Hedayet was ever associated with a 

terrorist organization or had engaged in criminal activity. The only indication that 

Mr. Hedayet could pose a threat to others in the United States was his own assertion that he was falsely accused of being a member of an organization that committed terrorist activities and that these allegations were used as a pretext to persecute him because of his religious beliefs. His asylum claim was found not entirely 

credible and was denied. There is no evidence that the alleged false accusation of 

his membership in the terrorist organization was true or that he was actually a 

member of such an organization. 

A brief chronology of INS interaction with Mr. Hedayet is as follows: 

On July 31, 1992, he was admitted to the United States as a visitor with permission to remain in the United States until January 25, 1993. The multiple entry B–

2 visa, valid for one year, was issued on July 13, 1992 at the American Embassy 

in Cairo, Egypt. On December 29, 1992, Mr. Hedayet filed an asylum application 

claiming discrimination and police harassment due to his religious beliefs. An application for employment authorization accompanied the asylum application. The employment authorization application was approved on March 8, 1993, and an employment authorization document (EAD) was issued. Mr. Hedayet was interviewed regarding his asylum claim on March 30, 1993. He testified that he had been arrested 

and tortured multiple times, and was also made to sign documents admitting his 

membership in Gama’a al-Islamiyaa. He states that he is not a member of Gama’a 

al-Islamiyaa but of Assad Eben Furat Mosque Association, an organization that advocates the application of Islamic laws in Egypt. 

On March 18, 1994, Mr. Hedayet applies to renew his EAD based on the pending 

asylum application. His application is approved and a new EAD is issued. On March 

7, 1995, INS issues a Notice of Intent to Deny the asylum application. On April 27, 

8

1995, the INS approves another renewal of Mr. Hedayet’s EAD based on the pending asylum application. 

The notice of denial on Mr. Hedayet’s asylum application is dated October 19, 

1995. In addition, the INS issued an Order to Show Cause charging him as a deportable alien based on his overstay of his visitor visa. These are returned to INS 

as undeliverable mail on January 30, 1996. In June 1996, INS renews Mr. Hedayet’s 

employment authorization after reviewing his file and determining that he was not 

in deportation proceedings and therefore entitled to the EAD based on his pending 

asylum application. 

Mr. Hedayet files an adjustment of status application in January 1997 as the 

spouse of a diversity visa recipient, and his fingerprints are submitted to the FBI 

for a criminal history check. In May 1997, the INS initiates name checks for derogatory information on Hedayet with the FBI and CIA. Mr. Hedayet is interviewed and 

his application is approved for adjustment of status on August 29, 1997. 

IMPROVEMENTS TO ASYLUM PROCESSING

It is important to acknowledge that numerous improvements have taken place in 

the years since Mr. Hedayet first filed his asylum application. I would like to use 

the remainder of my statement to highlight these improvements in processing both 

asylum and adjustment of status applications. 

First, it is likely Mr. Hedayet would have received personal service of charging 

documents placing him in removal proceedings two weeks after his asylum interview. 

Second, if he failed to appear for his hearing before the Immigration Judge, it is 

likely he would have been ordered removed in absentia if the INS could prove he 

was served with the charging document. He would also have been ineligible for employment authorization because of his failure to appear. 

Third, if he had appeared for his hearing before the Immigration Judge, he still 

would not have been eligible for employment authorization, unless his asylum application was granted by the Immigration Judge or was pending more than 180 days. 

Fourth, as soon as INS received his application, it would have automatically sent 

his biographical information electronically to the Central Intelligence Agency (CIA) 

and Federal Bureau of Investigation (FBI) for background checks, and scheduled 

him to have his fingerprints taken at an Application Support Center. 

Finally, his allegation of being accused of membership in a terrorist organization 

would have triggered referral of his case to Asylum Headquarters (HQASY), which 

would then consult with the National Security Unit and the National Security Law 

Division, for further scrutiny. 

These distinctions are a result both of asylum reform and security measures INS 

has continued to strengthen over the past six years. In 1995, asylum reform streamlined the asylum process and created a seamless referral process, giving asylum offices access to the Immigration Courts’ calendars to directly schedule referred applicants for hearing in Immigration Court. The requirement that most applicants return to be served with a decision ensures timely decision-making and clear evidence 

of service of charging documents. 

Under asylum reform procedures, it is likely Mr. Hedayet would have been scheduled for an interview within 43 days from the date he filed his application. Importantly, he would have been scheduled to return to the asylum office two weeks after 

his interview to be served with the decision on his application. As he was found ineligible for asylum and was not in valid status, the asylum office would have personally served him with charging documents within 60 days from the date he applied 

for asylum, thereby placing him in deportation proceedings. The charging documents 

would have contained a time and date for his first hearing with the Immigration 

Judge. Because Immigration Judges are required by statute to complete most asylum cases within 180 days, in all likelihood, Mr. Hedayet would have received a 

final determination on his asylum application and, if found ineligible, received an 

order of deportation or voluntary departure, within 180 days from the date he applied for asylum. If he failed to appear for his hearing before the Immigration 

Judge, the Immigration Judge would likely have ordered him removed in absentia, 

rather than have administratively closed the case, because INS would have been 

able to present proof of service of the charging documents. 

Additionally, Mr. Hedayet would not have been eligible to apply for employment 

authorization until 150 days from the date he filed his asylum application. Further, 

he would not have been eligible for a grant of employment authorization, unless his 

application remained pending 180 days after the date of filing or was granted by 

the Immigration Judge. If Mr. Hedayet had not shown up to pick-up his decision 

two weeks after the interview, he would have been ineligible to apply for employVerDate Jan 17 2002 10:24 Dec 06, 2002 Jkt 000000 PO 00000 Frm 00012 Fmt 6633 Sfmt 6621 G:\WORK\IMMIG\100902\82238.000 HJUD1 PsN: 82238
9

ment authorization. If he failed to appear for the hearing before the Immigration 

Judge, he would have been ineligible for employment authorization unless he could 

establish exceptional circumstances for the failure to appear. 

Current directives require Asylum Offices to notify Asylum Headquarters 

(HQASM) of asylum claims involving potential terrorists, including any case in 

which an applicant claims he or she has been accused of terrorist activities or terrorist associations. However, at the time that INS denied Mr. Hedayet’s asylum 

claim in April 1995, specific notification requirements for any asylum applicant who 

admitted to having been accused of being a member of a terrorist organization were 

not yet established. Moreover, the Antiterrorism and Effective Death Penalty Act of 

1996 (AEDPA) had not yet been enacted, so the current list of organizations designated as terrorist organizations by the Secretary of State pursuant to section 219 

of the INA was not yet in existence. The Department of State published its first list 

of 30 terrorist organizations on October 8, 1997. It included the Gama’a alIslamiyya. 

At the time of the decision on Mr. Hedayet’s asylum application, procedures required biographical information to be sent to the CIA by sending the CIA a copy 

of the Form G–325, Biographic Information, only if the case was recommended for 

approval. Also, at that time, a fingerprint card submitted by the applicant was sent 

to the FBI only if the case was recommended for approval. Under current procedures, electronic tapes with biographical information on all asylum applicants are 

sent to the CIA and the FBI. If those agencies have any adverse information on the 

applicant, that information is transmitted to INS’ National Security Unit (NSU). All 

applicants are routinely scheduled to have their fingerprints taken electronically at 

an Application Support Center and the asylum application cannot be approved until 

INS receives the results of the FBI fingerprint check. In addition, background 

checks are conducted against the Interagency Border Information System (IBIS) on 

all asylum applicants at the time of filing and before a decision is made if the last 

check was done more than 35 days prior to the decision. The application itself is 

sent to the Department of State for an opportunity to provide any comments or information. Records indicate that Mr. Hedayet’s asylum application, along with the 

asylum officer’s assessment, were sent to the Department of State on January 30, 

1995. No response was received which was standard procedure when the Department of State either had no interest in the case or no additional information to add 

to the case. 

IMPROVEMENT TO ADJUSTMENT OF STATUS PROCESSING

The record of Mr. Hedayet’s adjustment processing indicates that INS received his 

application on or before January 6, 1997, and that his fingerprints were forwarded 

to the FBI for a criminal history check on that date. In addition, Mr. Hedayet’s adjustment of status application was filed with payment of the additional penalty sum, 

as required under section 245 (I) of the Immigration and Nationality Act (INA). 

The INS Los Angeles District Office had jurisdiction to adjudicate the application 

despite the fact that an Order to Show Cause (OSC) had previously been filed with 

the Immigration Court. The controlling regulation at that time was found in 8 CFR 

245.2(a)(1) as in effect on January 1, 1997, and states, ‘‘After an alien has been 

served with an order to show cause or warrant of arrest, his application for adjustment of status under section 245 of the Act or section 1 of the Act of November 2, 

1966 shall be made and considered only in proceedings under part 242 of this chapter.’’ Former Part 242 referred to deportation proceedings within the purview of the 

Immigration Court. In this case, the record clearly established that the OSC had 

not been served upon the Mr. Hedayet and, therefore, that INS had jurisdiction over 

the application. 

At the time Mr. Hedayet filed his adjustment of status application, INS had discretion to serve him with a copy of the OSC, or to adjudicate the application. If INS 

had decided to serve him with the charging document, the Immigration Court would 

then have had jurisdiction to adjudicate the adjustment of status application. As a 

general matter, INS exercises favorable discretion as early in its processes as possible in recognition of the government’s and the alien’s interest in avoiding unnecessary legal proceedings. Although Mr. Hedayet’s record does not reflect the decision 

process not to serve him with the charging document, it would have been considered 

an unnecessary step to do so when he was prima facie eligible to adjust his status. 

IMPROVEMENTS TO APPLICATION PROCESSING

Since INS adjudicated Mr. Hedayet’s adjustment of status application, INS has 

made several improvements to application processing, particularly in the area of 

background checks. These improvements include:

10

• Electronic transmission of applicant fingerprint checks directly to the FBI 

after verification of applicant’s identity by INS personnel;

• Confirmed FBI responses to fingerprint checks and review of criminal record, 

if applicable, before scheduling an applicant for interview;

• Electronic data exchanges with the FBI and CIA on biographic information;

• Adverse information revealed by FBI or CIA biographic information checks is 

transmitted to NSU and adjudication of the application withheld until the information is resolved;

• IBIS (‘‘look out’’) checks on all applications and petitions at the time of filing 

and again before adjudication if the first check was conducted more than 35 

days prior to adjudication; and

• A national Standard Operating Procedure governing all adjustment of status 

applications and a Quality Assurance program to ensure compliance with the 

standard procedures. 

CONCLUSION

This concludes my testimony and I look forward to responding to any questions 

that you may have.

Mr. GEKAS. We will turn now to Mr. Pipes. 

STATEMENT OF DANIEL PIPES, DIRECTOR,

MIDDLE EAST FORUM 

Mr. PIPES. Thank you, Mr. Chairman. Thank you for this opportunity. On March 7, 1995, asylum office in Anaheim California.—— Mr. GEKAS. I think you just turned it off. There. Try it again. 

Mr. PIPES. Thank you, Mr. Chairman. 

On March 7, 1995, the Asylum Office in Anaheim, California, of 

the INS sent a letter of intent denying Hesham Mohamed Ali 

Hedayet, an Egyptian national, his application for asylum in the 

United States. This denial letter mentioned that Mr. Hedayet had 

acknowledged signing documents in Egypt that admitted his membership in an Egyptian group which the asylum officer called 

‘‘Gamatt El Islamaia.’’ Despite the fact that Mr. Hedayet had possible membership in 

al-Gama’a al-Islamiyya, this did not stand out in the INS denial 

letter, nor was it the basis of any further research or action by the 

INS or any American law enforcement agencies. Five years later or 

7 years later, it is clear that this was a profound misjudgment, for 

on July 4 of this year, the very same Mr. Hedayet attacked the El 

Al counter at Los Angeles International Airport, killing two in a 

hideous act of terrorism. 

One might think that the INS would admit the error of its ways. 

One would be wrong. We just heard Mr. Yates indicate that it basically—the INS was basically not responsible. There was really no 

evidence. There is no sense of shame on the part of the INS. In retrospect, I think this cavalier attitude toward Mr. Hedayet’s possible 

membership in the al-Gama’a al-Islamiyya is nothing less than astounding. It does not take a specialist in immigration procedures 

to realize that the INS’s complete lack of curiosity in this matter 

is—was wanting. 

There was very clear evidence, very easily available to the INS, 

about the nature of al-Gama’a al-Islamiyya. Every year the State 

Department puts out an important document called Patterns of 

Global Terrorism, and every year since 1992 it has pointed out the 

importance and the danger of al-Gama’a al-Islamiyya. For example, 

the 1992 edition of that book, said ‘‘most of the attacks [in Egypt] 

11

in 1992 were perpetrated by the al-Gama’a al-Islamiyya extremist 

group.’’ One finds the same kind of language reiterated every single 

year since then, 1994, 1995, 1996, 1997, 1998, 1999, until there 

was a cease-fire between al-Gama’a al-Islamiyya and the Egyptian 

Government. 

It bears noting that Mr. Hedayet is hardly the only legal immigrant who has engaged in terrorism on U.S. soil. Others include 

Mir Aimal Kansi, a Pakistani who killed two CIA personnel outside 

of Agency headquarters in Langley, Virginia, in January 1993; several of the gang that bombed the World Trade Center a month 

later; the murderers, Lebanese and Palestinian respectively, who 

killed individuals on the Brooklyn Bridge and the Empire State 

Building in 1994 and 1997; and, of course, nearly all, 15 out of 19, 

of the suicide hijackers on the four planes in September 2001, killing 3,000 people were legal immigrants. 

It bears noting that in today’s New York Post there is an article 

which looked—which analyzes the application for asylum, for entry, 

of these 15 and finds that all of them were improperly filled out, 

lacking information, and should have been denied on the very face 

of them without having to go any further than looking at the applications themselves. 

The INS must not only own up to its inexcusable error with regard to Hesham Mohamed Ali Hedayet, but it must also begin a 

remedial campaign to go through its archives to locate, investigate 

and deport or arrest any immigrants with ties to terrorism. 

Let me conclude by saying that I think we must go a step further. We have seen prominent business executives taken in handcuffs by law enforcement in recent months. I think punishments 

are—for criminal negligence are due not only to business executives, but also to Government officials who so betray their trust. 

Thank you. 

[The prepared statement of Mr. Pipes follows:]

PREPARED STATEMENT OF DANIEL PIPES

On March 7, 1995, the Asylum Office in Anaheim, California, of the Immigration 

and Naturalization Service (INS) sent a letter of intent denying Hesham Mohamed 

Ali Hedayet, an Egyptian national, his application for asylum in the United States. 

The denial letter mentioned that Hedayet had acknowledged signing documents 

in Egypt that admitting his membership in an Egyptian group which the asylum 

officer spelled ‘‘Gamatt El Islamaia’’ and his having admitted an intention to overthrow the government of Egypt. To be sure, Hedayet informed his U.S. asylum officer that the Egyptian police had compelled him to make these false confessions. 

Mention of Hedayet’s possible membership in ‘‘Gamatt El Islamaia’’ did not stand 

out in the INS denial letter, nor was it the basis of any further research or action 

by the INS or American law enforcement agencies. Hedayet’s case was completely 

routine, meaning that he was in effect permitted to disappear from the INS’s supervision, and it then made no special effort to find him. So lacking in urgency was 

his deportation that when the INS found its letters to Hedayet returned unopened, 

it appears to have let matters go at that. Worse, the INS extended Hedayet’s employment authorization on June 11, 1996, even as it supposedly was deporting him 

from the country. 

In July 1996, Hedayet’s wife won a visa from the annual lottery the INS runs. 

In November 1997, Hedayet applied for a change of status to become a lawful permanent resident. As in 1995, had the INS had reasonable grounds to believe 

Hedayet had engaged or was likely to engage in terrorist activity, it could have deported him. It appears that the INS paid no attention to this whole question, instead routinely approving Hedayet’s adjustment application. 

Five years later, the INS’s profound misjudgment is unfortunately too obvious. 

For on July 4th of this year, the same Hesham Mohamed Ali Hedayet attacked the 

12

1 Associated Press, 9 October 2002. 

2Page. 15. The report goes on to explain that Omar Abdel Rahman, the group’s leader, ‘‘has 

been in the United States since 1990’’ and ‘‘U.S. authorities are moving expeditiously with the 

aim of ensuring the Sheikh’s departure from this country.’’ Not expeditiously enough: in 1993, 

Omar Abdel Rahman engaged in terrorism in New York City. 3The State Department has subsequently found al-Gama’a al-Islamiyya to have ‘‘ties’’ to AlQaeda.

El Al counter at Los Angeles International Airport, killing two, in a hideous act of 

terrorism. 

One might think that the INS would admit the errors of its ways. One would be 

wrong, ‘‘The only indication that Mr. Hedayet could pose a threat to others in the 

United States,’’ states INS official William Yates said in testimony prepared for this 

hearing, ‘‘was his own assertion that he was falsely accused of being a member of 

an organization that committed terrorist activities.’’ 1

In retrospect, this cavalier attitude toward Hedayet’s possible membership in the 

group commonly spelled as al-Gama’a al-Islamiyya (which translates as ‘‘the Islamic 

Group,’’ or IG), is nothing less than astounding. 

It does not take a specialist in immigration procedures to realize that Hedayet 

mentioned the accusations against him because he decided the best tactic would be 

pre-emption. He anticipated that the INS’s would do a thorough investigation of his 

life and wanted to spin his record in advance. Although it certainly could be the 

case that the Egyptian police compelled an innocent man to sign a false document, 

there was also a very real possibility that Hedayet actually did belong to al-Gama’a al-Islamiyya. 

The INS’s complete lack of curiosity on this issue is astonishing. Not only does 

al-Gama’a al-Islamiyya have a long and notorious history of terrorism, one going 

back to the assassination of Anwar el-Sadat in October 1981, but this history is well 

documented in U.S. government publications. Patterns of Global Terrorism, the 

most authoritative U.S. government source on this subject, had amply documented 

what dangers Al-Gama’a al-Islamiyya posed by the time (March 1995 and November 

1997) the INS reached its critical decisions about Hedayet.

The 1992 edition of Patterns of Global Terrorism, the Department of State’s an- nual survey, explained that ‘‘Most of the attacks [in Egypt] in 1992 were perpetrated by the al-Gama’a al-Islamiyya extremist group. . . . This group seeks 

the violent overthrow of the Egyptian Government.’’ 2

The 1994 edition states that ‘‘Most attacks against Egyptian official and civilian 

targets, and against foreign tourists, were claimed by the extremist Islamic 

Group (IG). The IG seeks the violent overthrow of the Egyptian Government.’’ In October of that year, it bears noting, al-Gama’a al-Islamiyya was responsible 

for the only known attempt on the life of a Nobel laureate, Naguib Mahfouz.

‘‘Al-Gama’a al-Islamiyya . . . continued to be the most active Islamic extremist 

organization in Egypt in 1995,’’ stated the Patterns of Global Terrorism from 

that year. The group’s highlight came in June, when it attempted to assassinate 

Egypt’s President Husni Mubarak during his visit to Addis Ababa, Ethiopia.

No change in 1996: ‘‘al-Gama’at al-Islamiyya, which continued acts of terror in 

Egypt, remained active and dangerous.’’ The report told about ‘‘a shooting attack 

against foreign tourists at a Cairo hotel in April’’ which it described as having ‘‘the 

largest casualty count from a single incident in Egypt’s modern history.’’

As for 1997, Patterns of Global Terrorism termed al-Gama’a al-Islamiyya’s November ‘‘brutal attack [in Luxor] that left 58 tourists and four Egyptians dead’’ as ‘‘one 

of the world’s most horrific acts of terrorism in 1997.’’ 3

It bears noting that Hedayet is hardly the only legal immigrant who has engaged 

in terrorism on U.S. soil. Others include Mir Aimal Kansi, a Pakistani, who killed 

two CIA personnel outside agency headquarters in Langley, Virginia, in January 

1993; several of the gang that bombed the World Trade Center a month later; the 

murderers on the Brooklyn Bridge and the Empire State Building (in 1994 and 

1997); and, of course, most of the suicide hijackers of four planes in September 2001, 

killing three thousand. 

The INS not only must own up to its inexcusable error with regard to Hesham 

Mohamed Ali Hedayet; but it also must begin a remedial campaign to go through 

its archives to locate, investigate, then deport or arrest any immigrants with ties 

to terrorism.

Daniel Pipes (www.DanielPipes.org) is director of the Middle East Forum, columnist for the New York Post and Jerusalem Post, and author of Militant Islam 

Reaches America (W.W. Norton).

13

Mr. GEKAS. We thank the witness and turn to Mr. Camarota, to 

Dr. Camarota. 

STATEMENT OF STEVEN A. CAMAROTA, DIRECTOR OF 

RESEARCH, CENTER FOR IMMIGRATION STUDIES 

Mr. CAMAROTA. Mr. Chairman and Members of the Subcommittee, thank you for inviting me to testify at this hearing on 

the Hedayet case. My name is Steven Camarota, and I am Director 

of Research at the Center for Immigration Studies, a nonpartisan 

think tank here in Washington. 

When Mr. Hedayet murdered two people and maliciously wounded three others at LAX airport, on July 4 of this year, many observers mistakenly saw his crime, like the attacks of September 11, as 

either unpreventable random acts of terrorism or as failures only 

of intelligence, law enforcement or perhaps even airport security. 

But a careful examination of his immigration history reveals that 

fundamental problems in our immigration system also played a 

role. 

Mr. Hedayet came to the United States from Egypt on a tourist 

visa in 1992 and then applied for asylum, which, as we have heard, 

was turned down. However, his wife won the visa lottery in 1997, 

which gave him permanent residency. He then used the provision 

called 245(i), which allowed him to get his green card processed 

while he remained in the U.S. . 

The Hedayet case raises a number of critically important questions about our asylum system, the lottery and 245(i). Turning first 

to the asylum system, although his asylum application indicated 

that the Egyptian Government thought he was a terrorist, the INS 

seems never to have investigated this connection. The case is eerily 

reminiscent of one involving Gazi Ibrahim Abu Mezer, who tried to 

bomb the Brooklyn subway system in 1997. Mezer indicated on his 

asylum application that the Israeli Government thought he was a 

terrorist, and again, like Hedayet his possible connection to terrorism was never adequately investigated. The primary reason the 

INS did not ask the Egyptian or Israeli Government about these 

men’s possible links to terrorism is that it would have violated the 

confidentiality of the asylum process. 

In my view, the safety of the American people must supercede 

such concerns. Our top priority must be national security, not some 

hypothetical risk that notifying a home government might pose to 

an applicant or his family. Those who advocate the alternative 

point of view must accept responsibility for the increased risk of 

terrorism this creates. 

Let me briefly turn to the lottery used by Mr. Hedayet. One of 

the problems with the lottery is that it gives green cards to people 

who have no strong ties to the United States, unlike family-based 

immigration. Certainly individuals with few ties to the United 

States are more willing and more likely to engage in attacks on our 

country. The attractiveness of the lottery to terrorists is shown by 

the fact that two terrorists arrested in August of this year in 

Michigan also used the lottery. 

Finally, let me touch on why 245(i), which was also used by Mr. 

Hedayet, is such a problem. First, having the INS process applications in the United States increases the chance that any problem 

14

with the application will be missed. Consular officers in the home 

country know the local conditions and are in a much better position 

to judge whether someone is a security threat. 

But the second and most important problem with 245(i) is that 

processing applicants from within the United States renders the 

background check meaningless. Let me say that again. It makes it 

meaningless, because even if a person is found ineligible, he is still 

in the United States. The INS has no procedure or means to require green card applicants systematically who are rejected to leave 

the country. In contrast, if the applicant had returned to his home 

country to undergo processing and was then found ineligible, he 

would have, in effect, deported himself. The only way to make the 

background check meaningful is to have it done in the applicant’s 

home country. 

The problems with our immigration system I have outlined result 

mostly from a lack of resources and ill-conceived immigration policies. A recent study by the Center for Immigration Studies of 48 

known al Qaeda terrorists found that at least 22 had committed 

significant violations of immigration law prior to taking part in terrorism on U.S. soil. Clearly, strictly enforcing our immigration laws 

and permanently eliminating policies like the lottery and 245(i) 

could significantly reduce the terrorist threat. Thank you. 

[The prepared statement of Mr. Camarota follows:]

PREPARED STATEMENT OF STEVEN A. CAMAROTA

When Hesham Mohamed Hedayet murdered Victoria Hen and Yaakov Aminov at 

Los Angeles International Airport on July 4 of this year, many observers mistakenly 

saw his crime, like the attacks of September 11th, as either unpreventable random 

acts of terrorism or as representing failures only of intelligence, law enforcement, 

or perhaps even airport security. While it is extremely important to consider possible failures in each of these areas, a careful examination of the immigration history of Mr. Hedayet reveals that fundamental failures in our immigration system 

also played a critically important part in allowing him to commit his heinous crime. 

Although all of the facts have not been made public, a brief history of the Hedayet 

case is possible based on public information. Mr. Hedayet came to the United States 

from Egypt on a tourist visa in 1992, which allowed for a six-month stay. It seems 

clear that this was not his first long-term stay in the United States. In any event, 

before the visa expired he applied for asylum in 1992, giving him work authorization. Eventually his visa expired, but he continued to live in the United States as 

an illegal alien while his application for asylum was pending. His application was 

eventually turned down, as was his appeal in 1996. After he was denied asylum, 

the INS began deportation proceedings against him. However, his wife played the 

visa lottery, and in 1997 she won, which stopped his deportation and allowed her 

and her husband to become legal permanent residents. To obtain their green cards 

they used what was then a relatively new provision in the law called 245(i), which 

allowed them to have their green card applications processed from within the 

United States without having to return to Egypt for processing. 

As for his crime, there is no question that it was premeditated, and that he intended to kill as many people as possible. Moreover, he walked past other airlines 

and started shooting only after he reached the El Al ticket area. There can be no 

doubt that he intended that many of his victims be Jewish. At the very least, in 

my view, his actions qualify as a hate crime. Moreover, reports in the London-based 

Al-Hayat newspaper indicate that Mr. Hedayet met with Ayman al-Zawahiri in 

1995 and again in 1998. Al-Zawahiri is Osama bin Laden’s second in command and 

is one of the founders of al Qaeda. Thus it is very possible that in addition to being 

a hate crime, Hedayet’s murderous killing spree was also part of an al Qaeda operation. The Hedayet case raises a number of questions concerning the asylum system, the visa lottery, and 245(i). My testimony will briefly touch on each of these 

areas. 

15

THE ASYLUM SYSTEM

Turning first to our asylum system. The Hedayet case is extremely troubling for 

several reasons. Although his asylum application indicated that he was applying for 

asylum because the Egyptian government thought he was a terrorist, the INS seems 

never to have investigated his possible link to al-Gamaa al-Islamiya, also called the 

Islamic Group. In fact, Mr. Hedayet indicated on his asylum application that he had 

signed a confession in Egypt admitting his membership in the Islamic Group. The 

circumstances surrounding Hedayet’s asylum application are eerily reminiscent of a 

case in the mid-1990s involving Gazi Ibrahim Abu Mezer. Mezer, who lived in the 

West Bank, indicated on his asylum application that he too faced persecution, in his 

case from the Israeli government, because that country thought he was a member 

of Hamas. And again, like Hedayet, his possible ties to terrorists were never adequately investigated. Mezer was later sentenced to life in prison after he attempted 

to bomb the New York subway system in 1997. 

The primary reason that the INS did not ask the Egyptian or Israeli governments 

about the asylum applicant’s possible link to terrorism is that it would have violated 

the confidentiality of the asylum process. Moreover, there is a fear that foreign governments may move to penalize the applicant’s family who are still in their home 

country if those governments become aware that he or she was applying for asylum 

in the United States. However, in my view the national security of the United 

States must supercede such concerns. The safety of the American people must be 

the top priority of the United States government, not the hypothetical risk it might 

create for the applicant or his family. Those who advocate the alternative point and 

do not support contacting foreign governments about the possible terrorist links of 

asylum applicants must accept responsibility for the increased risk of terrorism this 

creates and must also accept some responsibility for the heinous crimes committed 

by terrorists like Hedayet and Mezer. 

Mr. Hedayet and Mr. Mezer are not the first terrorists to use our asylum system. 

Some of the most notorious terrorists in the 1990s used political asylum to enter 

and/or remain in the country. Sheik Omar Abdel Rahman, for example, used an asylum application to prevent his deportation to Egypt after all other means of remaining in the country had failed. Rahman inspired several terrorist plots, including the 

1993 attack on the World Trade Center, and he is considered one of the spiritual 

leaders whose ideology helped found al Qaeda. Mir Aimal Kansi, who murdered two 

CIA employees, and Ramzi Yousef, who was sentenced to death for masterminding 

the first attack on the World Trade Center, both had ayslum applicants pending 

when they committed their crimes. Moreover, Abdel Hakim Tizegha, who took part 

in the Millennium plot in 1999, and Ahmad Ajaj, who was involved in the first 

World Trade Center attack, both had applied for asylum as a means of remaining 

in the country. Tizegha’s application had been denied prior to his arrest; and Ajaj 

left the country before attending a hearing but later returned and took part in the 

first attack on the World Trade Center. 

Our lax asylum system, which often does not detain applicants and does not carefully investigate their stories, has been one of the favorite means for terrorists to 

live in the United States. Such a system has in the past allowed terrorists not only 

to enter the United States but has also allowed them to remain in the country moving about freely while they plan their attacks. In total, at least six—seven if 

Hedayet is included—al Qaeda terrorists have successfully manipulated our asylum 

laws. Several key reforms are needed, including more resources so that claims can 

be quickly and throughly investigated, more detention space so that anyone who 

might be a threat can be held and most importantly the INS must take very seriously any indication that the applicant is a possible terrorist. 

VISA LOTTERY

The visa lottery, used by Mr. Hedayet and his wife, is also very problematic from 

a national security point of view. The lottery gives out permanent residence to 

50,000 people a year who mail in post-cards and ‘‘win’’ the opportunity to come to 

America. The lottery gives green cards to people who have no strong ties to the 

United States. That is, unlike family-based immigration, which awards green cards 

to those who have relatives in the United States, the lottery goes to those who do 

not have a relative who can sponsor them. Certainly, individuals with few ties to 

the United States are more likely to be willing to attack our country. The 

attractiveness of the lottery to al Qaeda terrorists is also shown by the fact that 

Hedayet is not the only terrorist to use it. Ahmed Hannan and Karim Koubriti, indicted on August 28th of this year as members of a terrorist sleeper cell in Michigan, came to this country in 2000 after winning the lottery in Morocco. They are 

accused of planning attacks both here and abroad against American interests. 

16

It is very difficult to see what purpose the lottery serves. It does not satisfy any 

humanitarian concerns. Moreover, unlike employment-based immigration, the lottery does not make any attempt to select people based on whether they have some 

special or much-needed job skill. Instead, the lottery, which requires the handling 

and processing of 10 million entries, and also the processing of tens of thousands 

of additional green cards each year that would otherwise not have to be processed, 

creates a significant administrative burden for the State Department and the INS—

two organizations that are already overburdened by the number of applicants in 

other categories. 

In addition to creating administrative burdens and an avenue for terrorists to 

enter the country, one of the worst features of the lottery is that it encourages illegal immigration, as it did in the Hedayet case. Having no other means of remaining 

in the country, Hedayet stayed here anyway as an illegal alien even after his asylum application was denied. By appealing his asylum claim and by playing the lottery he was trying different means of remaining in the country. The existence of 

the lottery gave him a realistic hope of eventually getting a green card, if he just 

played the lottery long enough. He really had no other choice, because he did not 

have a family member who could sponsor him, nor did he have specialized skills 

which would have allowed him to qualify for employment-based immigration, and 

of course he did not qualify for asylum. If it had not been for the lottery, he and 

his family might have given up and gone home. 

245 (I)

After not carefully exploring Hedayet’s possible links to terrorists, and then allowing him to use the visa lottery, our immigration system compounded its failures by 

allowing him to get his green card using 245(i). Of course, he did qualify for it. Section 245(i) of the Immigration and Nationality Act allows illegal aliens (who have 

either snuck into the country or overstayed a temporary visa) to undergo visa processing (i.e., receive a green card) from within the United States. Applicants must 

pay a fine of $1,000, and by doing so they avoid having to return to their home 

country. 245(i) is a significant threat to American national security. Until the mid1990s, most green card applicants would have been required to apply in their home 

countries. 

There are many problems with 245(i): it represents a fundamental disregard for 

the rule of law, it makes all those who wait their turn in their home countries look 

like fools because they played by the rules, and it sends the message to those considering entering the country illegally that they may come whenever they want and 

stay illegally for as long as it takes get a green card. But putting all these concerns 

aside, from a national security standpoint there are two significant problems with 

allowing illegal aliens to undergo changes of status without going home to be processed. First, having the INS process applicants in the United States instead of requiring the alien to return to his home country increases the chance that any problem with the application will be missed. Consular officers in the home country speak 

the local language and know the local conditions, are in contact with local law enforcement, and are in a much better position to judge the validity of the application, 

and whether someone poses a security threat than is an INS employee who might 

be half a world away. 

The second and most important reason 245(i) is a threat to national security is 

that even if the INS could assess applications as well as the State Department, 

processing applications from within the United States renders the background check 

meaningless because even if a person is found ineligible, he is still in the country. 

The INS has no procedure or means to require green card applicants who are rejected to leave the country. In contrast, if the applicant had to return to his home 

country to undergo processing and was then found ineligible he would have, in effect, deported himself. The only way to make the background check meaningful is 

to have it done in the applicant’s home country. The existence of 245(i) not only 

made it less likely that Mr. Hedayet’s possible terrorist links would have been uncovered, it rendered his background check meaningless. Mr. Hedayet himself was 

in fact turned down for a green card, and he in fact did live in the United States 

as an illegal alien. He is not the only terrorist who was turned down for a green 

card and simply continued to live here illegally. Mohammed Salameh, who was 

turned down for a green card in the early 1990s, remained in the country and 

rented the truck used in the 1993 attack on the World Trade Center. 

Of course, many will argue that of the thousands of people who use 245(i), only 

a small fraction are criminals or terrorists. While this is certainly true, this is no 

reason to render the background check meaningless by processing applications in 

the United States rather than sending the person back to his or her home country. 

17

After all, the vast majority of airline passengers are not intending hijackers, but we 

still use metal detectors and x-ray machines on all of them before they board a 

plane. All security measures are always aimed at the small fraction of the population who intend to commit a crime. Everyone must be checked, and the check 

must be meaningful. And for the background check to be meaningful, individuals 

must return to their home country. 

CONCLUSION

If it can be said that anything good may have come from the atrocities of September 11th, it is that many Americans have come to realize that immigration is 

not simply a matter of economics or something to think about in only romantic and 

nostalgic terms. No longer can quaint stories of one’s immigrant grandmother be a 

substitute for intelligent discourse on one of the most important issues confronting 

the country. We need to realize that the failures in our immigration system that 

facilitated the attacks of September 11th or the July 4th murders at LAX airport 

are not mostly the fault of the INS. Yes, the INS has very real problems. But the 

failures in our immigration system result mostly from a lack resources, ill-conceived 

immigration policies, and most important of all, from a lack of political leadership. 

Many elected officials have been all too willing to adopt policies that clearly reward 

illegal immigration, and make protecting our nation much more difficult. Our lax 

asylum system, our inability to deport those who are turned down for a green card, 

along with the visa lottery and 245(i), are all examples of policies that create significant problems for American national security. 

There is a fundamental misconception about how immigration policy can help in 

the war on terrorism. We often hear that the INS should ‘‘only go after the terrorists.’’ But for the most part, apprehending someone who is a known terrorist is a 

matter of intelligence and law enforcement, not immigration policy. The way our immigration system can play a vital role in reducing the terrorist threat is by the 

mundane work of carefully processing applications and by strictly enforcing the law, 

such as by making those who are here illegally leave the country. A recent study 

published by the Center for Immigration Studies of 48 al Qaeda terrorists, including 

the September 11th hijackers, found that at least 22 had committed significant violations of immigration prior to taking part in terrorism. (The report is available at 

www.cis.org.) Given how common violations of immigration laws are among terrorists, strict enforcement would almost certainly be helpful in disrupting terrorism in 

the future. 

We also have to eliminate programs such as 245(i) that expose the country to unnecessary risks or that create unnecessary administrative burdens such as the visa 

lottery. If we adopt a policy of using our immigration system to ‘‘only go after the 

terrorists,’’ inevitably that will end up targeting people from Muslim countries for 

selective enforcement. I think we should reject a long-term policy of selective enforcement for only Muslims who violate immigration laws. We should enforce the 

law for everyone. Most people who argue that we should use our immigration system to target only terrorists almost certainly don’t want it to result in selective enforcement. But that is the inevitable result nonetheless.

Mr. GEKAS. We thank the gentleman and turn to our final witness for the day Mr. Virtue. 

STATEMENT OF PAUL VIRTUE, HOGAN AND HARTSON, 

FORMER GENERAL COUNSEL, IMMIGRATION AND NATURALIZATION SERVICE 

Mr. VIRTUE. Mr. Chairman, Ms. Jackson Lee, Members of the 

Committee, thank you for the opportunity to appear today to discuss the implications for immigration policy of the tragic case involving Mr. Hesham Hedayet. The matter provides a legitimate 

basis for inquiry into INS processes and procedures. However, attacks against the sound immigration policies that underlie programs involving the protection of refugees, the diversity lottery and 

former section 245(i) of the Immigration and Nationality Act are 

simply unfair. Rather, your review should focus on how immigration reform can best contribute to our national security by enhancing our intelligence gathering and sharing capability while respectVerDate Jan 17 2002 10:24 Dec 06, 2002 Jkt 000000 PO 00000 Frm 00021 Fmt 6633 Sfmt 6601 G:\WORK\IMMIG\100902\82238.000 HJUD1 PsN: 82238
18

ing our commitment to due process and civil liberties and facilitating the free flow of people and goods. 

It is important to examine the handling of this case in the context of current processes and procedures. Chief among those is the 

restructuring of the asylum application process in 1995 by which 

automatic eligibility for employment authorization was eliminated. 

The process was streamlined to allow for consideration of the claim 

by INS and the Immigration Court within a 6-month period. INS 

approval of claims is now limited to only manifestly well-supported 

applications. All others are referred to the court, and applicants are 

now required to appear in person at the Asylum Office to receive 

the decision and service of a notice to appear for removal proceedings where that is appropriate. 

Statutory provisions enacted in 1996 restricting consideration of 

asylum claims to those filed within 1 year of entry and requiring 

background checks before an asylum claim may be approved have 

also limited the attractiveness of asylum as a means to remain and 

work in the United States. 

Some suggested that asylum seekers be detained during consideration of their claims to limit the risk of danger to the community. 

While I agree that detention may be appropriate in those relatively 

small number of cases where the applicant poses a risk, or is suspected of posing a risk of harm, I don’t believe that custody should 

be made mandatory or that this should be applied liberally in the 

asylum context. Detention must be considered carefully in the 

cases of torture survivors and other asylum seekers, many of whom 

are still suffering from the effects of torture and persecution when 

they arrive in the United States. 

Similarly, I advise caution in the INS and State Department investigations of the bona fides of asylum claims and suspected terrorist activity. I continue to believe that sharing an asylum claim 

or the particulars of the claim with the sending country should be 

avoided as is provided in the existing guidelines for INS employees 

and State Department consular officials. Those guidelines permit 

overtures to the sending country in such a way that permits a thorough investigation while preserving confidentiality of the asylum 

process. 

The Hedayet case is also being used to criticize the diversity lottery program. The lottery program itself does not pose inherent security problems. The lottery simply gives selected persons from 

countries with low rates of immigration the opportunity to apply 

for permanent residence. Lottery winners must still undergo extensive background checks, identical to those required by persons 

sponsored for permanent residence by family members or by employers. As with the asylum regulatory changes, a number of 

changes in the DV program have made that program more secure, 

and those measures are detailed in my written testimony. 

Finally, former section 245(i) of the Immigration and Nationality 

Act has come under criticism as a result of the Hedayet case. Critics have suggested the provision operates as a loophole for those 

bent on terrorist aims because the applicant’s status is adjusted in 

the U.S. This is simply not the case. 245(i) was enacted as an efficiency measure in 1994. It did not change the requirements for admission as an immigrant and did not eliminate the requirement for 

19

background checks before an application can be approved. At the 

time Congress looked at the number of people who were traveling 

to their home countries to apply for visas, the disruptions in their 

lives and that of their employers, and the effect that that had on 

the staffing at consular posts and decided to permit those eligible 

for immigrant visas to adjust their status here in the U.S. 

Some have suggested that those unlawfully present in the U.S. 

would be more thoroughly screened by consular officers abroad 

than by INS adjudicators, and also that requiring them to apply 

abroad would address the problem with removal of those whose 

visas are denied. I can’t agree necessarily that consular officers are 

better postured than INS officers to conduct thorough interviews, 

but the latter point is a good one and should be examined. The 

problem is those people who are here in an unlawful status make 

themselves inadmissible by leaving to apply for a visa. There are 

ways to address this issue and to ensure that people who are of 

concern have to apply for their visas abroad. 

Thank you, Mr. Chairman. 

Mr. GEKAS. We thank the gentleman. 

[The prepared statement of Mr. Virtue follows:]

PREPARED STATEMENT OF PAUL W. VIRTUE

Mr. Chairman, Ms. Jackson Lee and Members of the Committee: 

Thank you for the opportunity to appear today to discuss the implications for immigration policy of the Immigration and Naturalization Service’s (‘‘INS’s’’) handling 

of matters involving Hesham Mohamed Ali Hedayet, the Egyptian national who shot 

and killed two people at Los Angeles International Airport on July 4, 2002. As detailed in the agency’s testimony, Mr. Hedayet entered the United States as a visitor 

in July 1992. His December 1992 application for asylum, in which he claimed persecution by the Egyptian government based on its mistaken belief that he was a member of Gama’a al-Islamiyaa, was denied by the INS in October 1995. An order to 

show cause charging Hedayet with being deportable as an overstay was then issued 

and mailed, but deportation proceedings were never commenced when the charging 

document was returned to the agency as undeliverable mail. In January 1997, Mr. 

Hedayet filed an application for adjustment of status as the spouse of a diversity 

lottery winner. When name and fingerprint checks with the FBI and CIA failed to 

elicit negative information, Hedayet’s status was adjusted to permanent residence 

in August 1997. 

While the Hedayet case serves as the basis for legitimate inquiry into INS processes and procedures, it is both unfair and inaccurate to use the case to raise allegations against sound immigration policies that underlie programs involving the protection of refugees, the diversity lottery, or former Section 245(i) of the Immigration 

and Nationality Act. Rather, responsible voices recognize that immigration reform 

can best contribute to our national security by enhancing our intelligence capacity 

while respecting our commitment to due process and civil liberties and facilitating 

the free flow of people and goods. 

Needed reforms to our immigration system are included in the Border Security 

and Visa Entry Reform Act (Border Security Act, Pub. L. No. 107–173). Specifically, 

the new law: authorizes increased funding for the Department of State (DOS) and 

the INS; requires federal agencies to coordinate and share information needed to 

identify and intercept terrorists; encourages the use of new technologies by authorizing funds to improve technology and infrastructure at INS, the Customs Service, 

and DOS, and targets much of this effort at strengthening our nation’s border; implements a study to determine the feasibility of a North American Perimeter Safety 

Zone (that includes a review of the feasibility of expanding and developing pre-clearance and pre-inspections programs); includes provisions for a workable entry-exit 

control system; implements changes in the Foreign Student Monitoring Program 

that will fill in gaps in data and reporting; and provides for a one-year extension 

of the deadline for individuals crossing the border to acquire biometric border crossing cards. 

This measure also poses challenges to our country, the Congress, federal agencies, 

and the American people. Given the Act’s very ambitious deadlines, Congress needs 

20

to provide the federal agencies with the staffing and funding levels they need to implement this measure’s provisions. It is important for Congress to give the federal 

agencies the funding they need to do a good job. In addition, some of the Act’s provisions, particularly several of the mandated implementation deadlines, may negatively affect cross-border commerce and travel. Finally, the federal agencies, especially the INS and DOS, have an important role to play in enhancing our nation’s 

security. This measure, if sufficiently funded, will give the agencies the tools they 

need to do their job. For their part, the agencies need to be up to the task of implementing major reforms that address our security needs at the same time they recognize the continued importance of immigration to our nation. 

All of these issues, as well as the Hedayet case, pose special concerns in the context of the creation of the proposed new homeland security department that would 

include our nation’s immigration functions. If we are to make our nation safer, any 

proposal to reorganize our immigration functions must recognize the delicate balance between adjudications and enforcement that is necessary for efficient, effective, 

and fair enforcement and adjudications. Adjudications and enforcement are two 

sides of the same coin and must be closely coordinated and subject to the same interpretation and implementation of the law. 

ASYLUM

The INS has been criticized for failing to follow up on the statements made in 

Heyadet’s asylum claim that he was targeted for persecution based on the government’s mistaken belief that he was a member of Gama’a al-Islamiyaa, a group later 

included in the State Department’s list of terrorist organizations. The INS testimony 

includes a thorough description of the steps it has taken to ensure full FBI and CIA 

background checks before asylum will be approved. Indeed, each applicant now undergoes background checks upon filing the application, irrespective of the INS determination regarding grant or denial. In addition, since 1997, statements included in 

asylum applications that raise questions regarding membership in terrorist organizations are referred to INS headquarters for review and appropriate follow up. 

Thus, had Mr. Hedayet’s claim been considered under current procedures, it would 

be reviewed for further action by the INS Headquarters National Security Office, 

including detention, where appropriate. 

Fair procedures are critically important in making what can be life and death decisions regarding asylum. Detention is an appropriate measure for dealing with 

threats to our national security, but its use must be considered carefully in the 

cases of torture survivors, rape survivors and other asylum seekers, many of whom 

are still suffering from the effects of torture and persecution at the time they arrive 

in the U.S. Many victims find it hard to speak of their experiences right after they 

arrive. Often times, the shame, isolation and terror they feel is overwhelming. Even 

to save their lives, these victims may be unable to tell a strange person in a crowded 

room what they have endured. Under current procedures the failure to articulate 

a legally sound claim for asylum at the port of entry can result in an asylum seeker 

being turned away without a fair opportunity to fully present a claim. For those who 

are able to pass a credible fear hearing, lengthy detention is commonplace. 

For many reasons, blanket detention policies are inappropriate and fail to strike 

a proper balance between security and humane treatment:

• Detention undermines the ability of asylum seekers to pursue their asylum 

claims. Detained asylum seekers are often unable to obtain the legal assistance necessary to help them navigate the complex asylum process. Such assistance is critical; a Georgetown University study revealed that represented 

asylum seekers are 4 to 6 times more likely to win their asylum cases. Some 

detention facilities and jails are located in remote areas that are inaccessible 

to legal counsel, and asylum seekers sometimes find themselves transferred 

from facility to facility, stranding them hundreds of miles from their lawyers. 

The distance to these facilities also limits the ability of torture survivors to 

be examined by medical professionals in order to corroborate their cases.

• The INS relies heavily on detention space rented from local prisons, facilities 

that are incapable of meeting the needs of asylum seekers. Local prisons account for more than 60 percent of INS detention space. In such facilities, asylum seekers, including women, are sometimes commingled with criminal inmates. They may be denied adequate translation services, and can be subjected to harsh disciplinary or other procedures, including the use of restraints. Asylum seekers can become invisible in these criminal prisons, indistinguishable from the rest of the prison population.

21

• Families are divided. Families who arrive in the United States together are 

sometimes split between detention centers or into different units within a facility. They are either not allowed to visit with each other or allowed to do 

so infrequently and without physical contact. The remote location of some detention centers and restrictive visiting hours deter many relatives from visiting their detained family members.

• The INS frequently refuses to release asylum seekers from detention even after 

they are found to have a credible fear of returning to their home countries.

U.S. law allows the INS to release asylum seekers after they have been found 

to have a credible fear of persecution. In fact, the INS has issued guidelines 

authorizing the release of asylum seekers who satisfy certain criteria, stating 

that its policy is to ‘‘favor’’ release of these asylum seekers. But some INS district offices frequently ignore these directives and continue to detain asylum 

seekers for prolonged periods.

RECOMMENDATIONS: Congress should:

• Authorize and appropriate funds for adequate INS-managed detention space 

in locations with access to free or low-cost legal services;

• Mandate the development and consistent implementation of alternatives to 

detention of asylum seekers, including by parole under the asylum parole criteria, supervised release, and the creation of shelters operated by appropriate 

non-governmental organizations;

• Provide for independent review by an immigration judge of a decision to detain;

• Instruct the Department of Justice to issue regulations facilitating the parole 

of asylum seekers, specifying the criteria for their release, providing for immigration judge review, and ensuring the release of individuals granted ‘‘withholding of removal’’ who present no danger to the community; and

• Create an Office of Detention Oversight within the Department of Justice to 

monitor detention facilities and enforce detention standards.

Through the implementation of the Border Security and Visa Entry Reform Act, 

we can increase the security of the immigration system without resorting to simplistic and overly-broad policies that fail to appropriately discriminate between 

those who seek to do us harm and those who are seeking protections from persecution. 

DIVERSITY LOTTERY

Before the Immigration Act of 1990 (Pub. L. No. 101–649), immigrants were primarily admitted to the United States through one of two routes: (1) through their 

relationship to a family member in the United States; or (2) via employer sponsorship. The 1990 Act, through creation of the Diversity Immigrant Visa Program (DV 

Program or Diversity Lottery), provided a third route by which immigrants can 

enter the United States. 

The DV Program does not pose any inherent security problems. The lottery simply 

gives selected persons from countries with low rates of immigration the opportunity 

to apply for permanent residence. To qualify as a diversity immigrant, an alien 

must come from a designated ‘‘low-admission’’ country, and must have at least a 

high school education or its equivalent, or have worked at least two years in an occupation that requires two years of training or experience. Lottery winners must undergo extensive background checks, identical to those required by persons sponsored 

for permanent residence by family members or employers. 

Security lapses can, of course, occur in this process if the FBI and CIA fail to 

share intelligence and law enforcement information with the INS and the State Department. However, this problem, too, was addressed by the Border Security Act, 

discussed above. The Border Security Act closes loopholes in our immigration system by requiring the FBI, CIA and other law enforcement and intelligence agencies 

to share vital information in real time, among our front-line agencies. It creates an 

electronic data system to give those responsible for screening visa applicants and 

persons entering the U.S. the information they need in real time and the tools they 

need to make informed decisions. 

Moreover, several recent regulatory amendments to the DV Program have served 

to make the program more secure. For example, an October 26, 2001, State Department final rule augmented the photograph and signature requirements contained in 

the DV regulations, and updated the method by which consular officers make determinations regarding applicants’ work experience (66 Fed. Reg. 54135 (Oct. 26, 

22

2001)). Specifically, the amendments provided that for anti-fraud purposes, the signature on the application must be the applicant’s usual and customary signature 

in his or her native alphabet. An initialed signature or block printing of the applicant’s name will not be accepted and will result in disqualification of the entry. The 

rule also added a new paragraph to the regulations to address photographs. Beginning with the DV–2003 registration, the entry, in addition to containing the applicant’s photograph, must also include recent photographs of the applicant’s spouse 

and children (natural children as well as legally adopted children and stepchildren), 

with a separate photograph for each family member. Photographs must be submitted even though the spouse or child no longer resides with the applicant and 

whether or not the dependent will accompany or follow to join the applicant in the 

U.S. 

The October 2001 regulations also clarified that under no circumstances may a 

consular officer issue a visa to an alien after the end of the fiscal year for which 

the alien was registered, and further, that at the end of the fiscal year, the petition 

is automatically revoked. Finally, the regulations required consular officers to make 

determinations regarding an applicant’s work experience based upon the Department of Labor’s O*NET OnLine rather than the previously used Dictionary of Occupational Titles. 

A subsequent interim rule further refined the October 2001 amendments, and 

added language clarifying the definition of ‘‘high school education or its equivalent’’

(67 Fed. Reg. 51752, Aug. 9, 2002). 

INA SECTION 245(I)

Much confusion surrounds this important but little understood provision of immigration law. The provision to extend the deadline to file an application under Section 245(i) of the Immigration and Nationality Act that passed the House last March 

has been so poorly reported on in the media that some important clarifications are 

in order. 

Section 245(i) is an important provision of U.S. immigration laws that has allowed 

eligible people to adjust their immigration status in this country, without having to 

return to their home countries where they could face bars to reentering the U.S. 

of up to ten years. Immigrants applying for Section 245(i) are eligible for their 

‘‘green cards’’ (permission to permanently reside in the U.S.), but without Section 

245(i) are unable to obtain them in the U.S. because they are not in a legal status. 

Thus, because these individuals are eligible to become permanent residents, the only 

thing that Section 245(i) addresses is the location in which an application for a 

‘‘green card’’ is processed. Under the provision, when a person becomes eligible to 

receive a green card because of a close family relationship to a U.S. citizen or legal 

resident, or through the sponsorship of a qualified employer, that person will be allowed to go through the application process in the United States. 

This law does not change who is eligible or when a person is eligible. It does not 

put a person ‘‘at the front of the line.’’ There is only one worldwide ‘‘waiting list’’

for available visas, and anyone seeking to apply for a visa under Section 245(i) must 

await their turn in that line. This law does not provide work authorization or protection from deportation for those individuals waiting in the United States for their 

turn in the line to come up. Section 245(i) only pertains to where people receive 

their green cards. Without this law, many immigrants are forced to return to their 

countries of nationality to await their green cards, thereby facing separation of up 

to ten years from their families and leaving their employers without needed workers. Section 245(i) allows families to stay together and businesses to retain valued 

employees. Most importantly, it gives the U.S. government a chance to thoroughly 

review the backgrounds of these people who may already be living in our communities, and decide whether or not we want them to continue living amongst us. This 

screening process is lengthy and quite involved, but without 245(i) many immigrants would be discouraged from beginning the process and making themselves 

known to authorities. 

Section 245(i) also is fiscally prudent. It generated nearly $200 million in annual 

revenues for the Immigration and Naturalization Service (INS) the last time this 

provision of the law was implemented. 

Section 245(i) has been characterized by some as a loophole that will allow terrorists to get green cards and gain legal residency. It is time to set the record straight. 

Section 245(i) does NOT operate independently of the long-standing provisions of 

our immigration laws, which make known terrorists inadmissible to, and deportable 

from, our country. A person seeking processing under this law must prove to the 

INS that he or she is admissible to the United States for permanent residence. The 

law excludes any alien who has engaged in any type of terrorist activity, as well 

23

as any alien who the Attorney General has reasonable grounds to believe is engaged 

in or is likely to engage after entry in any terrorist activity. In fact, the law excludes 

any alien who the Attorney General has reason to believe seeks to enter the U.S. 

to engage in any unlawful activity. 

People who apply for Section 245(i) processing can be rejected for many other reasons, including: health-related grounds (comprising both mental and physical disorders); criminal convictions; public charge issues; and participation in drug trafficking activity, prostitution, commercialized vice, smuggling or human trafficking, 

money laundering, document fraud or misrepresentation, to name a few. 

Most importantly, Section 245(i) does not provide a person with authorization to 

remain in the United States, does not provide employment authorization, and does 

not provide any protection from deportation, unless and until the applicant’s turn 

in line for visa processing has been reached, a visa is available, and the applicant 

has been approved for lawful permanent resident status. 

Adjustment of immigration status under Section 245(i) is neither a right nor an 

entitlement-approval of any Section 245(i) application is solely at the discretion of 

the U.S. Attorney General and available only to those who are qualified to immigrate to the United States. 

CONCLUSION

In sum, our focus in reforming our immigration laws must be targeted and meaningful—to identify and isolate potential terrorists, without compromising our values. 

Individuals who are otherwise eligible under our laws should be allowed to immigrate to the United States. Our actions must strike a careful balance between the 

need for strong law enforcement and preserving our tradition as a nation of immigrants.

Mr. GEKAS. And now it comes time to allot time to Members for 

a round of questioning of the witnesses, which will begin by the 

Chair allotting itself 5 minutes for—during the first round. 

Mr. Virtue, you say that the 245(i) application background check 

can be efficiently handled in the United States. Mr. Camarota asserts that the only way to be thorough about that particular situation is to have the background check conducted in the home country. That is a vital difference there. 

It seems to me that the more believable background check would 

probably occur in the home country, since that is where the individual grew up; is that not the case? 

Mr. VIRTUE. I don’t disagree with that point, Mr. Chairman. The 

question is where the visa will be issued or where the adjustment 

of status takes place. The background check for the individual may 

still be done in the home country. It still may be done by the State 

Department. The question is where the actual interview takes 

place. So if we can refine the systems, and the INS is doing this, 

to have full information from the FBI and the CIA on the individual, the locus of the actual interview shouldn’t matter on this 

point. 

Mr. GEKAS. But isn’t that exactly the problem we have not with 

the 245(i), but with the situation of Hedayet? Mr. Yates in his testimony says there is no evidence. I think that is the phrase he 

used. Let’s see here. 

Mr. YATES. That is correct, Mr. Chairman. 

Mr. GEKAS. There is no evidence. Yet I circled that portion. If I 

could find it. And yet his own statement—it seems to me Hedayet’s 

own statement in the asylum proceedings gave evidence, self-condemning evidence, that he was being considered as a terrorist, 

under his own words, in his home country. That seems to me—and 

we lawyers, prosecutors, in the past have used that kind of statement as a red flag through which we would enter other realms of 

24

evidence to determine the truth of such a statement. What happened here? 

Mr. YATES. But, Mr. Chairman, what he said is that he was 

falsely accused, and in the adjudication of asylum cases, it is not 

at all unusual for an individual to come forward and say, I was 

falsely accused, and their government was using those false accusations as a pretext to persecute them. I mean, this is a very common 

situation in the asylum process. 

Mr. GEKAS. Well, how did you.——

Mr. YATES. He denied—he not only denied that was true, he said 

that he had never been involved in any kind of violent activity. 

Mr. GEKAS. How did it come up? Did he just blurt out, I am not 

a member of a terrorist organization? How did it come up? 

Mr. YATES. He indicated during the course of the interview that 

he had been arrested by the police, that he had been beaten, that 

he had been detained, and he had been falsely accused of being a 

member of an organization that we now know is—has been classified since 1997 as a terrorist organization. He denied any involvement. He said, I am a religious man. I am a member of a mosque. 

I am not a violent man. I don’t have a gun. So his statement was, 

I have been accused of that. That was part of his asylum claim. 

The basis for his claim of persecution was that he was being falsely 

accused and was being tortured because of that. 

Mr. GEKAS. But the INS did not believe that; is that correct? 

Mr. YATES. The officer who interviewed him, it was the totality 

of statements where the officer said, I don’t think you are credible. 

I mentioned a few of the things. The officer said, if you have that 

kind of fear, why did you leave your wife and child back in Egypt? 

And, in fact, he had not. They had joined him in the United States 

shortly before the interview. 

But it is clear that the officer did not find his testimony credible. 

That is why he denied the asylum application. 

Mr. GEKAS. I thought you also said in your statement that no 

agency supplied the INS with any further background information 

on Hedayet. Did you say that? 

Mr. YATES. I did say that; that is correct. 

Mr. GEKAS. Did the INS reach out? Did they ask the State Department? 

Mr. YATES. At the time of the asylum application, the asylum 

process, INS sent a copy of the application and a copy of the officer’s notes to the Bureau of Humanitarian—the BHRHA, excuse 

me. I have just—Bureau of Human Relations and Humanitarian 

Affairs, excuse me. That was part of our process to determine 

whether or not there was any specific information. 

INS was well aware of country conditions. The INS officer mentions he was well aware that there were attacks on Coptic Christians, so it was not that the officer was not aware of problems in 

Egypt at that particular point in time, but we received no information that indicated that he was involved in any activity that would 

be prejudicial to the United States. 

Mr. GEKAS. Did the humanitarian agency assert that there was 

no evidence? 

Mr. YATES. We received no reply. 

25

Mr. GEKAS. Well, that is what I am saying; so that you did not 

have—when you say you did not have evidence, you really meant 

you had no evidence. 

Mr. YATES. Well, I chose my words carefully on that. But we 

have also—but we also ran additional checks a short time later in 

the adjustment of status process with fingerprint checks, sending 

out other agency checks, and as I have mentioned, even after this 

tragic event, we went back and looked at all of the agencies to determine whether the CIA, the FBI, the Customs Service, the Department of State, anyone had any information on Hedayet, and it 

was negative. 

Mr. GEKAS. And there is nothing in the record that I can discern 

that indicated that the INS ever contacted the Egyptian Government, correct? 

Mr. YATES. No. In fact, Mr. Chairman, in the asylum process we 

would not do that, because if we contacted the Egyptian Government, if his claim was accurate, then we would have put his family 

members at risk. I mean, that is an issue that was discussed by 

other panel members here, but that is—that is a problem. That is, 

frankly, the only source that we do not contact, I mean, reaching 

out to that home government in those cases. 

Mr. GEKAS. It seems that we have to try to balance the risk that 

you say applied to his family with that which obviously applied to 

Americans at an airport. 

Mr. YATES. Right. I think.—— Mr. GEKAS. The time of the Chair has expired for this first 

round. The gentlelady from Texas is recognized for a round of questioning. 

Ms. JACKSON LEE. Thank you very much, Mr. Chairman. 

I would like to have unanimous consent that my statement that 

I offered previously as an opening statement be submitted into the 

record in its entirety. 

Mr. GEKAS. Without objection. 

Ms. JACKSON LEE. And I would like to have permission, unanimous consent, to submit the statement of Mr. Conyers, the Ranking Member of the full Committee, on this oversight hearing. 

Mr. GEKAS. Without objection. 

Ms. JACKSON LEE. And I have a document from the United 

States Department of Justice dealing with the confidentiality of 

asylum applications and overseas verification of documents and application information. I would like to submit this, ask unanimous 

consent to submit this into the record. 

Mr. GEKAS. Without objection. 

Ms. JACKSON LEE. Thank you very much, Mr. Chairman. 

Let me restate again for the record the importance of this oversight hearing and thank the Chairman for this hearing. 

And I might provide a backdrop of my questions, Mr. Virtue—

I thank you for your presence here, and all of the witnesses—and 

that is that in the course of this hearing, we are also studying, as 

we all are aware of, a total reform of homeland security, meaning 

that we are in the process of creating a Homeland Security Department. My understanding is that as this legislation is moving 

through the other body, we will place immigration in its entirety 

in the Homeland Security Department with a recognition that 

26

there be certain aspects of the visa authority that will be retained 

by the State Department, but oversight regulations and guidance 

will be under Homeland Security, which will put a new face, if you 

will, on all of these processes. 

And so what I think is important, that as we look to correct what 

we believe may be detrimental in light of the terrible loss of life, 

we are going to be changing in any event how the oversight processes will go. Let me then pose questions to you in this instance, 

if you can restate your comments, is that—would you, again, comment on this maybe premise that the 245(i), for example, or even 

the lottery system, in and of themselves pose a threat. What has 

been your experience, both in your former position and your 

present position? 

I would like to go to Mr. Yates, and if he can be thinking of these 

questions, to give me the numbers of individuals in a ballpark figure that he may have in detention. How many incidents like this 

has come to mind or come to the attention of the INS that has resulted from a diversity lottery, meaning that a violent crime incident has generated out of a diversity lottery procedure such as Mr. 

Hedayet’s wife received diversity lottery? How many incidents have 

come to your attention? And I will pose those questions shortly. 

Mr. Virtue. 

Mr. VIRTUE. Thank you, Ms. Jackson Lee. 

Yes, in answer to your question, the diversity lottery itself is just 

another category of eligibility for immigration to the United States, 

not unlike family-based immigration or employment-based immigration or special immigrant provisions in the statute. 

Anyone who is eligible under that program must nonetheless go 

through the background checks and the interview required of anyone who is adjusting their status here in the United States. 245(i) 

similarly does not create, in and of itself, security risks. The issue 

is where the person’s status is adjusted, whether that is in the 

United States or abroad. But the background checks can be done 

very well in the home country by the State Department, the CIA. 

Some offices have INS officers who are available to conduct checks 

in the home countries. So that—it does not create unnecessarily a 

risk against security. 

Ms. JACKSON LEE. If we were to—if we are reforming immigration as it relates to this new Homeland Security Department, you 

could easily move those responsibilities to the continental United 

States, if you will, under our own law enforcement agencies; is that 

what you are suggesting? 

Mr. VIRTUE. Well, that certainly could be done. If anything, this 

case is one of many examples that points out the need to maintain 

close coordination between adjudication of benefits and enforcement of the Immigration and Nationality Act. It is critically important, in my opinion, that those functions remain together in the 

homeland security office, and, yes, those functions could be handled 

here as well as abroad. 

Ms. JACKSON LEE. It is also the case that both 245(i) or the diversity lottery does not grant a status. It allows you to access a status and to go through the process. 

Mr. VIRTUE. That is correct. 

27

Ms. JACKSON LEE. Mr. Yates, if you could answer those questions 

dealing with the troublesomeness, if you will, previously, or to your 

knowledge, of the diversity lottery. 

Mr. YATES. Well.——

Mr. GEKAS. The lady is granted another 1 minute for the purpose 

of questioning. 

Ms. JACKSON LEE. I thank the Chairman for his kindness. 

Mr. YATES. Ms. Jackson Lee, we do know that a number of individuals who have entered through diversity visa lottery have committed crimes in the United States. What I can’t tell you is if it 

is out of proportion with the average number of immigrants who 

have committed crimes. I don’t—I haven’t seen any statistics on 

that. 

Ms. JACKSON LEE. Or you can’t tell me whether they are any different from other adjustment status procedures in terms of accessing legalization. So you can’t—you don’t have background to say 

that one is more proportionate than others? 

Mr. YATES. No, no, I don’t. I can tell you they go through the 

same types of checks before they come in, the same types of background checks and fingerprint checks and things of that nature, 

through the adjustment of status process. But I don’t know after 

they enter if there is a higher rate of crime by those who enter in 

that—through the diversity visa process. 

Ms. JACKSON LEE. But the adjustment is not weak. I mean, the 

vetting of those individuals are not weaker. 

Mr. YATES. Are not weaker. 

Ms. JACKSON LEE. All right. Thank you very much. 

Mr. GEKAS. The Chair recognizes the gentleman from Virginia 

Mr. Forbes for a round of questioning. 

Mr. FORBES. Thank you, Mr. Chairman, and, gentlemen, thank 

you for being with us today. 

It has been mentioned earlier that our country welcomes immigrants, and certainly we do. And we also recognize we don’t want 

to just leave them at the dock. We want to provide them with safety here, and we want to make sure that immigrants that are here 

legally with an intent not to hurt Americans are protected and just 

as safe as other Americans. But one of the things I hear when I 

travel across the country—two different things—is, one, that Americans believe that it is time for us to work to protect innocent individuals from becoming victims just as much as we go after—protect 

the guilty people after they have committed crimes. 

Mr. FORBES. And secondly, we heard this term common sense, 

and Mr. Yates, when I talk to people across the country, the question they say to me more than any other is where is the common 

sense in what we see happening with the INS today? And so I just 

want to come back to the fact that you had an individual—and this 

is what the Chairman raised to you earlier, an individual who says 

that he was classified as a terrorist by the Egyptian government 

apparently, even though wrongly so, that he had been arrested, 

that they were going through his mail, that they were doing all 

kinds of things. 

I think anyone would recognize that common sense would suggest that at least the Egyptian government thought he was a terVerDate Jan 17 2002 10:24 Dec 06, 2002 Jkt 000000 PO 00000 Frm 00031 Fmt 6633 Sfmt 6601 G:\WORK\IMMIG\100902\82238.000 HJUD1 PsN: 82238
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rorist, perhaps, at that particular point in time, whether they did 

so rightly or wrongly. 

My first question to you is if you had been able to contact the 

Egyptian government, would that have helped you at all? 

Mr. YATES. I think—I don’t think I can honestly answer that 

question. I have read information now after his death that the 

Egyptian government has said they never had any record of this 

individual. They don’t believe he was a member of any terrorist organization, but I don’t know what we would have found. 

The problem for us in that type of situation, though, is when you 

apply for political asylum and he is saying the Egyptian government is persecuting me and my family, how do we go back to that 

government without putting other people at risk? I mean, that is 

the dilemma, and that is why we rely on the Department of State 

and the FBI and the CIA to provide us information regarding a veracity of a claim or the potential threat to our own citizens. 

Mr. GEKAS. Would the gentleman yield? Again, I thought that 

you said that the only inquiry you made was to the humanitarian 

group, and you have mentioned the CIA and the FBI here and the 

State Department, but you.——

Mr. YATES. Mr. Chairman, in that particular case, that is true. 

In 19—for the applications that were filed then, we did not have 

the kind of rigorous checks that are in place today, and that came 

in with asylum reform. After 1995 those checks started to increase, 

and later after 1997, there was a requirement that any time—even 

if there is a false accusation, that the asylum officer had to forward 

that case to INS headquarters so we could vet it with our national 

security unit and have a special vetting. 

So there was a change in our process, a concern, and that concern, of course, occurred during the 1990’s as we all became more 

aware of threats against the United States. 

Mr. GEKAS. I thank the gentleman for yielding. 

Mr. FORBES. Sure. Mr. Yates, how did you go about affirmatively 

trying to ascertain whether or not the allegations that were raised 

in this particular situation were accurate or not? I know that you 

said that you sent the information to the humanitarian group, but 

is that all that you do? Do you just send it there and say, hey, we 

have got this application and wait to see if they respond back, or 

do you take any affirmative steps to see if there is any validity to 

the claims that were made? 

Mr. YATES. At the point in time that this case was adjudicated, 

it was the responsibility of the interviewing officer to try to elicit 

information from that interview and then sending information 

through the Department of State, through the BHRHA that I mentioned, to determine whether or not there was—they possessed any 

information that would help us to make an adjudication in that 

case. As I mentioned, it is a much more robust process today. 

Mr. FORBES. But let me just ask, again, the interviewing officer 

was supposed to solicit the information. The interviewing officer actually determined that he didn’t think Mr. Hedayet was credible. 

Isn’t that correct? 

Mr. YATES. That’s correct. 

Mr. FORBES. All right. What additional steps, then, would he 

have to take if he determined that it wasn’t credible? Did he just 

29

forward this application on to the other agencies, and if nothing 

took place, just approved it? 

Mr. YATES. And the process—he didn’t approve it, sir. He denied 

it, and he scheduled and he went through the process to schedule 

him for a deportation proceeding. Unfortunately, they mailed out 

the order to show cause, which was the charging document for that 

process, and he moved and never received the document. 

Mr. FORBES. And that is my final question, as my time is about 

to run out. But when you have the asylum application that is denied, how do you find these individuals? What do you do at that 

particular point? 

Mr. YATES. Again, we have a stronger process today, because 

today the asylum applicant comes back to the office to get the decision in person, and if it is a denial, the officer hands that individual the documents to appear before the court. That means that 

if he does not show up, the judge can order him deported, and if 

he is encountered again, it is a matter of then locking him up and 

removing him from the United States. That is another improvement that is in the process today that was not part of the process 

back then. 

Mr. FORBES. Thank you, Mr. Chairman. My time is expired. 

Mr. GEKAS. The Chair now turns to the gentleman from California for a round of questions. 

Mr. ISSA. Thank you, Mr. Chairman. You know, for all of the 

panel, I know that you are all here dealing with hindsight on a situation, and you see it differently, and no surprise I perhaps see it 

differently than any of you. 

Mr. Yates, probably the thing that perplexes me the most—and 

I don’t want to be somebody who comes to a Committee and says, 

I see conspiracies, but as I read through the circumstances around 

this, what I see is that Mrs. Hedayet apparently has eight names, 

and at least 16 derivations of that name, and it appears—and I will 

run through a scenario and you tell me where all the holes are in 

it. 

It appears that she may have made multiple applications. One 

of them was granted but not under her normal name, and she 

made those applications perhaps to help her husband stay here, a 

member of Hamas, hypothetically, since he clearly had never been 

accused but said he was accused. And she got him to stay, and he 

killed Americans. Then she flees the country. 

What are we doing today to stop multiple name applications? Do 

we have a plan for biometric or some other system that would prevent this kind—you know, in my district I have a lot of Hispanics, 

they play by the rules, but many of them have multiple names. 

They could take advantage of this same situation very easily. 

Mr. YATES. The multiple name situation clearly is a problem. 

You asked a number of questions. First, I can’t tell you that his 

spouse, Hala el-Awadli did not.——

Mr. ISSA. That is the short name. Right? 

Mr. YATES. Yes. That is the name that—that is her signature. I 

cannot tell you that she did not file multiple applications. 

Now, they don’t file with INS. These are applications for the diversity visa lottery that are filed with the Department of State. At 

least in the past, it was a practice of the Department of State to 

30

destroy all of the applications of those who did not win. So we have 

no way to go back to ascertain whether or not multiple applications 

were filed. 

We do know, looking at her adjustment application now, I counted at least 12 variations, and I may have missed a few, on that 

name. 

I also—that application, by the way, was filed through an attorney. I also noted that her attorney misspelled his own name differently twice. It was very.—— Mr. ISSA. What is.—— Mr. YATES. It was very sloppy work, but it points out the issue 

that I raised in my oral presentation, and that is, we do need a biometric identifier. It is something that is more than just INS. I 

think it is—as we look at the process for immigrants arriving in 

the United States, or even nonimmigrants, it has got to start with 

the Department of State. It has to move on to INS. We have got 

to do that. This is a very serious issue. 

Mr. ISSA. Anyone else feel that there is any room for doubt that 

we need to have biometric tracking so that we are dealing with one 

person, we are really dealing with one person and not one person 

becoming 12 in order to game the system? 

Mr. CAMAROTA. No. Absolutely it is of enormous value, and it 

may have some deterrent effect, because giving your photo and fingerprints to the United States Government might be some deterrent for terrorists. They might not be anxious to do that. So not 

only would it help in doing what you are talking about, but it could 

have some other benefits as well. 

Mr. ISSA. Mr. Yates, I don’t want to pick on you, but I am going 

to. Yeah. We are always pleased to have people from INS. They 

tend to be a focus of this Committee. 

Post September 11th, we were assured by the INS that changes 

were being made, incredibly fast changes to make it more robust. 

Today I heard the same words. What I am interested in is there 

are 81⁄2 and a half million people in this country who are either 

overstays or, in fact, were never allowed to be here. How many of 

these kinds are among them? What is it going to take to go 

through that backlog so that you can come here and tell me what 

I don’t believe you can tell me today, which is we have gone 

through every single person to look for exactly the indications that 

understandably were missed, but were missed and in retrospect we 

would have done something further? 

What is it going to take financially and time wise, and how can 

this Committee assist you? 

Mr. YATES. Okay. I am not sure I understand the question. When 

you mention 81⁄2 million, are you talking about an approximate 

number of illegal aliens in the United States or.——

Mr. ISSA. I am dealing just with illegals, of whom 40 percent, you 

know, 4 million, 31⁄2 million, are overstays that would have similar 

documentation but no deportation orders, not a lot of this, and your 

12 or so million that are here but are here based on the old standard? What is it going to take to go through that number of people? 

Mr. YATES. I think that frankly, the task is a lot larger than 

that, because we receive about 8 million applications a year now. 

So you would have to look at—you are talking about 81⁄2 million 

31

who are here illegally. Some of those individuals may be attempting to legalize their status. The vast majority may be just out 

there, and INS has no information on those individuals. It is frankly a monumental task to try to do that. 

Mr. ISSA. If I could do one quick follow-up. 

Mr. YATES. It costs $75 to run a fingerprint check on an individual. It cost money every time we run those checks. So depending 

upon the total numbers, we can calculate costs, but then you have 

got to calculate costs of agents to locate them. 

Mr. ISSA. And my question as a follow-up is because of my concern of the possibility of selective checking. 

Ms. Jackson Lee has, for example, a private bill for a Palestinian 

who would be clearly an overstay, came here, applied for asylum, 

applied, applied, finally was denied but never left, and the years 

have gone on, more than 5 years since that time. His case was just, 

I think, a fluke that they discovered he was there. We have 3 or 

4 million people in that category. 

My reason for asking is that I am personally concerned that of 

these 31⁄2 or 4 million, I don’t expect you to get rid of them all, but 

how do we go through and find out who of these 3 or 4 million people who are overstays, who have fallen out of the system, are potentially dangerous and then move up the procedure on them? It 

is selective, but it is selective based on threat, which to me is important. 

I need to have this kind of person that we could have said, hey, 

there is something not quite right, versus this theory that we go 

get all 81⁄2 million which we know we could never get. So rather 

than say impossible, my question to you—and I would appreciate 

it if you would respond in writing because my time is expired—is 

what steps are you taking to go through and find the highest risk 

of that, let us say, 3 million overstays in addition to the 8 million 

that you are dealing with anew every day? 

Thank you, Mr. Chairman. 

Ms. JACKSON LEE. Would the Chairman yield the distinguished 

gentleman an additional minute? And I would like to have the gentleman yield to me for a question? 

Mr. ISSA. I would be glad to yield to the gentlelady from Texas. 

Mr. GEKAS. We will yield him an additional minute. 

Ms. JACKSON LEE. Let me join the distinguished gentleman Mr. 

Issa from California. I think we have discussed this for a number 

of weeks now, and that is of course the point that there are a number of overstays, and it would be important, as we look at homeland security, that we frame our search on those who we know 

pointedly may be dangerous. And at the same time, that we would 

be able to reflect on the Kezmer family that has lived openly in the 

community, and of course has been seeking, if you will, legalization. They, of course, are in the process of seeking that through a 

private bill now, that we could distinguish them from that. And I 

guess as soon as Mr. Issa—what I am saying, Mr. Issa, is you were 

distinguishing families like the Kezmer family that has lived openly, and seeking access to legalization have been vetted over and 

over again as being not dangerous, but we should join together to 

find those who do pose a threat to the United States. 

I yield to the gentleman for his.——

32

Mr. ISSA. And exactly. My concern is that we not selectively look 

for Egyptians, Palestinians, any particular group, even if they are 

a high-risk group, but we look through them. And knowing that if 

an Egyptian or a Palestinian pops up as an overstay today, the 

likelihood of deportation is very quick. 

That doesn’t take into account the Indonesians, the Malaysians, 

lots of other groups. 

My concern is not matter where you are from, including the 

many people in my district from Mexico, I need to know that there 

is a system in place to go after the criminal alien, the terrorist 

alien, the alien who is not gamefully employed to the—as a preferred class to go after, and that is something that has been missing from INS. And even today I don’t have a comfort level that that 

is the screening criteria to deal with the portion of that 81⁄2 million 

that the Census said are here illegally, plus the 8 million coming 

in, but I am talking about the overstays and the simply never legally here, to go through it an at least go through the ones who 

will do us harm, recognizing that no one in this room thinks that 

you are going to get rid of 81⁄2 million undocumented workers here 

today, nor are we asking you to. 

I think we are asking you to come up with a system that tells 

us with confidence that you are dealing with threats to our community and our safety as your first priority. 

Ms. JACKSON LEE. If I might reclaim the extended 1 minute, 

some time of it and just simply say distinctive from—and I want 

to thank Congressman Issa for his support of the Kezmer family, 

which happened to be Palestinians, but distinctive from individuals 

who are living openly in the community and have at every step of 

the way sought to access legalization. I think we can all find common ground on that approach, to be protective of the Nation but 

also to be fair of those individuals who are here, who work and pay 

taxes and want to stay here. Thank you, Mr. Chairman. 

Mr. GEKAS. The Chair will now recognize a second round questions for anyone who would like to ask them. 

Ms. Jackson Lee. 

Ms. JACKSON LEE. I will not hold the Committee. I simply want 

to just maybe acknowledge Mr. Camarota, I think you had raised 

a point about countries, the law enforcements in other countries 

checking on the background of individuals. And I would just want 

to probe that sometimes we have great concern about law enforcement in places like Yemen and Iraq and North Korea. Certainly 

would not be helpful to have them vet these individuals. Wouldn’t 

it be more helpful to have this done by our own State Department, 

law enforcement authorities here? 

Mr. CAMAROTA. Well, certainly, but in the case of Mr. Hedayet, 

he had indicated that the Egyptian government thought he was a 

terrorist. It seems to me, especially in a post 9/11 world—though 

I would have argued we should have done it before—we need to 

ask the Egyptian government. That might have exposed him or 

perhaps his family—we know it wouldn’t have since they were already here—to some risk. And that is a balance, but for me that 

balance has to be struck in favor of the American people. We need 

to know why they thought he was a terrorist. We do have these reports in a London-based Arabic newspaper that he actually had 

33

met several times with Ayman al-Zawahiri, bin Laden’s No. 2 man, 

who is Egyptian. We need to know did the Egyptian government 

know that, and I think that is the kind of thing and that is the 

way the balance should be struck, national security first. 

Ms. JACKSON LEE. I appreciate your response. Mr. Chairman, I 

am going to close by simply saying that I think your reasoning does 

not overcome the doubt that we may have in confronting some of 

these law enforcement agencies in foreign countries that may not 

have the national security of the United States as their first priority. It may be the oppression of individuals who have been so presumptuous and arrogant to leave the country. 

So I think there is some merit to the issue of the humanitarian 

aspects of this, and I think we can combine our necessities, that 

is, the protection of this Nation, national security, with the reinforcement of the Homeland Security Department that will begin to 

share these responsibilities and fix some of the problems at the 

INS. 

I yield back. Thank you, Mr. Chairman. 

Mr. GEKAS. Thank you. The Chair will now yield itself an additional 3 minutes for one last question. 

Mr. Yates, the Attorney General has asked Commissioner Ziglar 

to promptly ascertain whether other aliens may be in the United 

States who have admitted that they have been accused of terrorist 

activity or terrorist association. Could you just tell the Committee 

whether or not this is being done, and if so, when it is going to be 

completed and how many claims—how many aliens have made 

such claims in the past years? 

Mr. YATES. At the present time, we are working to identify the 

total universe of cases and to develop a plan on how that review 

can take place. We have not yet discussed the points in that plan 

with the Attorney General. So I can’t discuss it further at this 

point in time, but we are identifying the potential case load that 

needs to be reviewed and what process needs to be established to 

complete that. 

Mr. GEKAS. Thank you. And we would like to thank all of you 

for taking your time. 

Ms. JACKSON LEE. Would you be kind enough to restate that 

Members who were not able, as everyone knows there is a debate 

on the floor, not able to be present have a period of time to submit 

their statements into the record? I believe it is 5 days. 

Mr. GEKAS. Without objection, we will be glad to grant that 5 

days. 

Also the Subcommittee majority and minority staff have prepared a copy of Hedayet’s A file from which personal information 

has been redacted. If there are no objections, the Chair will enter 

this document into the record. 

Mr. GEKAS. Also I will—the Chair will enter the Attorney General’s September 18, 2002 memorandum to the commissioner concerning Hesham Hedayet into the record. If there are no objections. 

Mr. GEKAS. Finally, the Chair will direct the INS to prepare a 

report for this Subcommittee to be made a part of this hearing 

record explaining what it is doing to investigate, prosecute fraud in 

the diversity visa lottery program. The Chair is interested in assessing whether the INS has any system for identifying aliens apVerDate Jan 17 2002 10:24 Dec 06, 2002 Jkt 000000 PO 00000 Frm 00037 Fmt 6633 Sfmt 6601 G:\WORK\IMMIG\100902\82238.000 HJUD1 PsN: 82238
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plying for an adjustment of status who have filed numerous applications for diversity visa benefits under different names, places of 

birth and or dates of birth. That report should be completed no 

later than November 8, 2002, so that it can be made a part of this 

hearing record. 

Without objection, the hearing is adjourned. 

[Whereupon, at 4:17 p.m., the Subcommittee was adjourned.] 

(35)

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

PREPARED STATEMENT OF THE HONORABLE SHEILA JACKSON LEE, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF TEXAS

Mr. Chairman, thank you for calling this oversight hearing on this tragic incident. 

On July 4, 2002, we all recall the terrible images of terror coming from the events 

at the Los Angeles International Airport. No one in this room would not sympathize 

with the pain and suffering endured by those present at the airport, and the friends 

and family of the victims. On July 4, Hesham Mohamed Ali Hedayet went on a 

shooting rampage in the line of the El Al ticket counter killing two, 25 year old Victoria V. Hen an El Al employee, and 46-year-old bystander Yaakov Aminov. We deplore these acts and it is the purpose of this hearing to see if there was anything 

that the INS could have done to prevent this tragedy from occurring. 

The record shows, generally, that at the time of the tragedy, Mr. Hedayet was 

a lawful permanent resident of the United States. In December 1992, Mr. Hedayet 

filed an asylum application with the INS. That Application was denied in October 

1995. Subsequently, Mr. Hedayet’s wife won a visa through the annual diversity lottery. At this point, Mr. Hedayet filed an adjustment of status application with the 

INS. The INS interviewed him on this application and approved it in 1997. 

I must admit that what stands out about this matter is the time that was taken 

to process Mr. Hedayet. Here we have an asylum application that began in 1992 

that was not completed until 1997. I will be interested to hear from our witnesses, 

particularly the INS about their interpretations of the events that took place between Mr. Hedayet’s initial application and the final approval of his adjustment of 

status application. 

Many investigators have concluded that the actions of Mr. Hedayet on July 4, 

were random and unplanned, however, I am open minded and willing to hearing 

otherwise from our witnesses today. I understand that on the other side of the isle 

there is great concern about the timeliness of receipt of the Hedayet file after it was 

initially requested by the majority. I too share this concern. 

There are also some on this committee that believe that Mr. Hedayet, may have 

misrepresented himself in his asylum application, which would have rendered him 

ineligible to later adjust status. I have not drawn any conclusions on these facts 

and, again, I come today with an open mind with the hopes of getting to the bottom 

of this tragedy. 

I do, however, want to say that I hope that we do not come today to disparage 

policy and programs that are of vital importance to the immigrant community and 

many members of Congress. I have heard from those in the immigrant advocacy 

community about their concern that this forum will be used to attack such programs 

as the Diversity Visa Program, Section 245(i), and the Asylum process in general. 

I would hope that we could put our partisan hats aside and agree that these programs are not at the heart of this matter. While procedures concerning and about 

these programs may not have been followed appropriately, and acknowledging that 

the laws of old did not address certain matters as efficiently and effectively as the 

laws of today, it is important to emphasize that the policy and purposes of these 

programs are still valid, and that these programs still meet the needs of many immigrants and their American families. 

Many of the issues that we have visited in the past, we will surely visit again 

today. For example, during consideration of the PATRIOT Act, I along with many 

other members fought to keep confidential information within the applications of 

many of those seeking asylum in the United States. This confidentiality is needed 

in order to ensure that information within the asylum application is not turned over 

to the very home governments the asylum seeker is fleeing. Many asylum seekers 

have fled their home countries under threat of assassination. In fact, I believe that 

36

INS and the State Department already have significant tools to investigate asylum 

seekers. Along these lines, I would like to introduce the following INS memorandum 

regarding the Legal Framework of Confidentiality of Asylum Applications and Overseas Verification of Documents and Application Information from June of 2001 into 

the record. 

Since this tragedy took place it has garnered significant attention and precipitated action on the part of the Department of Justice. Attorney General Ashcroft 

has directed the INS to review all existing asylum cases to determine whether possible terrorist links have gone unexamined. I encourage Mr. Yates to inform us of 

any information that he may have and can disclose about the progress of this investigation. 

Mr. Chairman, at this point I will turn this hearing back over to your capable 

hands, noting that it is with great anticipation that I look forward to hearing the 

testimony of our witnesses today. Thank you Mr. Chairman.

PREPARED STATEMENT OF THE JOHN CONYERS, JR., A REPRESENTATIVE IN CONGRESS

FROM THE STATE OF MICHIGAN

Let me first reiterate the fact that I agree with you that the immigration system 

in our country is broken and must be fixed. As you know, earlier in the year we 

introduced bipartisan legislation to restructure the INS, and I remain fully committed to that endeavor. 

Just because there are systematic problems with the INS and our immigration 

system, however, does not mean that we should obliterate the very principles upon 

which our country was founded when things go wrong and immigrants are involved. 

To be clear, our country is based on the notion that the United States is a nation 

of immigrants; that it is a haven for those who suffer and flee from persecution and 

mistreatment in their home countries; that the United States is a better nation for 

its diversity. 

The asylum program, diversity visa lottery and section 245(i) are important form 

the framework for our rich immigrant tradition. These programs have been strongly 

supported by Republican and Democratic Administrations and must continue to receive our support. 

These principles hold true even in the face of tragedies such as the one that occurred on July 4 at the Los Angeles airport. While Mr. Hesham Hedayat was an 

immigrant, according to press accounts. he was also a troubled man who was having 

family and business problems. 

Unfortunately, this type of tragedy is not unique in our country. But more importantly is not limited to or typical of immigrants. We must make sure that we do 

not take isolated instances such as that involving Mr. Hedayat and transform them 

into a general indictment of all of our immigration laws. 

I look forward to hearing from our witnesses today.

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Æ


Doc80.eps