Immigration Benefit Fraud and Violence Against Women
by MICHAEL CUTLER
July 15, 2011
Written Statement Of Michael W. Cutler, Senior Special Agent, Ins (Ret.) re: The Hearing Held On July 13, 2011 Before The Senate Judiciary Committee “The Violence Against Women Act: Building On Seventeen Years Of Accomplishments”
I greatly appreciate this opportunity to provide my perspectives and concerns about immigration benefit fraud in general and specifically where VAWA is concerned.
Before we go further I believe it is extremely important to note that while VAWA is an acronym for Violence Against Women's Act, there are many instances where it is the male spouse who suffers from the violence. I would suggest that in this era of gender neutral titles that perhaps a more balanced name should be considered for this important program.
I would like to provide you with a bit of information about my background since I will be making observations and recommendations about VAWA and related areas of concern and to make certain that you know that my perspectives are not based on conjecture but rather are based on my observations and first hand experiences.
I was an employee of what had been the Immigration and Naturalization Service (INS) for approximately 30 years, having begun my career in October 1971 when I entered on duty as an Immigration Inspector assigned to John F. Kennedy International Airport in New York and remained in that position for approximately four years. During one of those four years I was detailed as an Examiner to a pilot program at what was then referred to as the I-130 Unit, so named because our mission was to adjudicate I-130 Petitions that were filed by United States citizens or resident aliens to accord their alien spouses Lawful Permanent Resident Alien status in the United States. In order to accomplish this important mission, my colleagues and I conducted interviews of the petitioning United States citizens and resident aliens and their alien spouses in an effort to determine whether they were living in a true marital arrangement or had entered into a sham marriage as a business arrangement for which the petitioning spouse would often be paid money or receive another tangible benefit and the beneficiary would ultimately acquire lawful immigrant status.
Initially the couples who had entered into fraud marriages were often easy to detect because they rarely rehearsed their answers so we might have the husband claim that they lived in a basement apartment of a private house, while his wife might claim that they lived on the fourth floor of an apartment house that had an elevator.
It did not take long for the word to spread throughout the immigrant community, that detailed interviews were being conducted and, as a consequence, more and more couples who engaged in marriage fraud came prepared to a greater or lesser degree with a knowledge of the basics as to where they lived and other such fundamental facts they hoped would successfully get them through the interview.
My colleagues and I at the I-130 Unit had to adapt to the challenges posed by those who had engaged in marriage fraud but who came prepared or the interviews. Hence our interviews had to become more focused and we had to become more skillful and creative interviewers. For example, I took to the practice of asking to see the house keys of the couple to see if their keys matched and if they could identify which key, for instance, opened the outer door of an apartment house and which key opened the locks on the apartment door. I came to appreciate how effective the “grapevine” was when one day I introduced myself to the husband of one couple and when I mentioned my name, he immediately reached into his pocket and threw his keys on my desk. I was surprised, as was his attorney, and I asked why he did this. He told me that he had heard “on the street” that if Michael Cutler was the guy doing the interview, that he would have to produce his keys.
When he heard my name, he immediately realized I would likely ask him to show me his keys. Incredibly I encountered some couples who had matching keys but it became clear that one of the members of the couple had other keys for the apartment where he or she really lived.
The point is that those intent on gaming the system are really paying attention. By arresting illegal aliens who had engaged in marriage fraud, and seeking their deportation from the United States if not their criminal prosecution, we found ultimately the number of fraud applications dropped significantly.
This is what deterrence is all about.
You cannot and should not expect people to take our laws seriously until and unless the law enforcement agencies that administer and enforce those laws demonstrate that these agencies take these laws seriously, themselves.
When individuals are able to commit a crime and are made to understand that there will be no consequences for their crimes, the crime rate climbs and, in the case of immigration fraud, the result is that aliens succeed in gaming the system and quickly the word spreads that aliens who are willing to pay for a citizen to enter into a bogus marriage for them will have nothing to fear. The likelihood that the fraud will be detected is all but nonexistent and, even in the highly unlikely event that the marriage is determined to be a sham, the alien and the citizen petitioner will not face consequences for their crimes.
Today that vital mission is the responsibility of employees of USCIS who are now referred to as Adjudications Officers.
In August of 1975 I entered on Duty as an Criminal Investigator (Special Agent) where I spent the balance of my 30 year career with the INS. I rotated throughout the various squads within the Investigations Branch of the New York District Office of the INS and spent a number of years assigned to the Frauds Unit where I conducted field investigations into various aspects of fraud ranging from conducting investigations into suspected cases of marriage fraud, labor certification fraud, visa fraud to the identification and arrest of fraud document vendors.
When I was assigned to the Unified Intelligence Division of the New York Office of the Drug Enforcement Administration, one of my areas of concern and an area of concern for the DEA was the issue of immigration fraud- often where it concerned false identity documents, but it also was important to uncover immigration fraud that facilitated the entrance and embedding of aliens into the United States who were targeted for investigation by the DEA and other law enforcement agencies. This concern about fraud continued when I was promoted to the position of Senior Special Agent and assigned to the Organized Crime Drug Enforcement Task Force in New York.
I recall one particularly troubling case in which the target of a major narcotics trafficking organization being conducted by the FBI, and to which I was assigned to assist, was a naturalized citizen of the United States who had been born in Latin America. As I reviewed his immigration file, I was shocked to see that immediately under his Naturalization Certificate were a series of certified court documents indicating that he had been convicted, on several occasions, of felonies involving narcotics trafficking and related crimes and had served years in prison for those crimes for which he was convicted. As I recall, on at least one occasion his conviction for a drug-related felony was the result of a plea bargain. Clearly he was ineligible to have been granted United States citizenship and, in fact, should have been deported from the United States.
He had irrefutably lied on his application for United States citizenship indicating that he had never been arrested nor convicted of any crimes. That false statement should have resulted in his prosecution, but I was unable to get the Assistant United States Attorney in Newark, New Jersey, wherein the venue for the crime lay, to agree to indict this individual for that fraud. I was told that inasmuch as he had already been indicted for committing several drug-related crimes there was no reason to add naturalization fraud to the indictment.
Visa fraud and immigration benefit fraud have plagued the immigration system for many years. It has, in fact, been determined that visa fraud and immigration benefit fraud have played a major role in the ability of terrorists to enter the United States and successfully embed themselves in our country. Such fraud has also been an important factor in cases involving spies and transnational criminals enabling them to enter the United States and embed themselves in our country so that they could conduct their criminal and nefarious activities to the detriment of our nation.
The alien who successfully games the immigration system is not only committing a crime and getting away with it- such crimes may also have serious national security ramifications. In the case of fraud in filing petitions under the aegis of VAWA, a disturbing additional component exists- the potential that not only will an alien who is intent on violating the laws by committing fraud may succeed, but that even if the claim of spousal abuse is bogus, that a hapless United States citizen or resident alien may be harmed and hence become “collateral damage” as a result of that fraud. This is certainly not a “victimless crime.”
As you know, when an I-130 Petition approved for an alien spouse, that spouse may be granted a conditional resident status for two years. This was made a requirement in an effort to combat immigration benefit fraud. After the two year period, the alien beneficiary and his (her) spouse are required to apply to have the conditional resident status converted to permanent resident status. There are a number of provisions by which the conditional resident alien may have his (her) conditional resident status made permanent where the petitioning spouse need not participate. Under the auspices of VAWA, the petitioning spouse is taken out of the picture- creating a potential incentive for an alien spouse who has mistreated the U.S. Citizen spouse to add “insult to injury” and claim to have, in fact, been the actual “victim” of abuse at the hands of the U.S. citizen.
This provides yet another clear reason why VAWA petitions must be carefully investigated.
It is important to note that when an alien, for whom a petition is filed with USCIS to accord that alien resident alien status, the fundamental purpose behind granting that alien lawful resident status is to serve the interests of the petitioning spouse so that the alien in question may join citizen in a marital relationship in the United States.
Indeed, an oft forgotten point is that our nation's immigration laws exist to protect our nation and our citizens from aliens whose in our country would be detrimental to our nation and/or our citizens.
This is why it is particularly disturbing when an alien for whom a petition is filed falsely alleges spousal abuse against the husband or wife who, in good faith, entered into that marriage and then filed a petition on behalf of that spouse.
If our government is to live up to its obligation of protecting the citizens and resident aliens of our nation, then it would certainly be only fair that all such allegations of spousal abuse be thoroughly investigated because of the grave harm such allegations can have to harm a petitioning United States citizen.
During my career with the INS and in the years since my career ended, I have heard leaders of the INS and of the current component agencies under DHS that administer and enforce the immigration laws, state that our government must be customer oriented or must consider the needs of the stakeholders. I could not agree more, however, while some of these administrators were of the belief that their customers were the aliens, including illegal aliens, I have always held that the “customers and stakeholders” are actually the citizens of our nation.
Protecting aliens from unscrupulous and abusive spouses is certainly a worthwhile goal. No one can possibly justify or defend anyone who would take advantage of an alien spouse and leverage the prospect of resident alien status to intimidate or abuse that alien, but often worthwhile goals suffer from “unintended consequences.” It has, after all, been said that the road to hell is paved with good intentions.
We have seen other well-intentioned programs subverted by terrorists and criminals. Political asylum is an excellent example of such a program. In January 1993 Amil Kansi, a citizen of Pakistan who had been granted political asylum even though he lies on his application, stood outside CIA Headquarters in Langley, Virginia with an AK-47 and opened fire upon vehicles being driven into the CIA parking lot. He killed two CIA officers and wounded three others. He fled the United States, was ultimately bought back to stand trial and was found guilty at that trial. He was subsequently executed for his crimes, but those he killed remained dead and those injured still suffered the consequences of their injuries.
Other terror suspects have similarly committed political asylum fraud as have criminal aliens.
Unfortunately, there are those who will see in the kindness and generosity of our nation and our citizens, weakness.
Another such example can be found in the case of Samuel Abrahaley Fessahazion.
On March 30, 2010 the Department of Justice issued a press release, entitled, "Eritrean Man Pleads Guilty to Alien Smuggling" that can be found at this link:
Here are the three short paragraphs I have taken directly from the press release that "cut to the chase:"
WASHINGTON - Samuel Abrahaley Fessahazion, 23, an Eritrean national, has pleaded guilty to helping smuggle illegal aliens to the United States for private financial gain, announced Assistant Attorney General Lanny A. Breuer of the Criminal Division, U.S. Attorney José Angel Moreno of the Southern District of Texas and U.S. Immigration and Customs Enforcement (ICE) Assistant Secretary John Morton.
Fessahazion, aka “Sami,” aka “Sammy,” aka “Alex” and aka “Alex Williams” pleaded guilty yesterday in Houston before U.S. District Court Judge Nancy A. Atlas to one count of conspiracy, and two counts of encouraging and inducing aliens to come to, enter or reside in the United States in violation of law for the purpose of private financial gain.
According to plea documents, from at least June 2007 until approximately January 2008, Fessahazion was the Guatemalan link of an alien smuggling network that spans East Africa, Central and South America. Specifically, according to the court documents, Fessahazion illegally entered the United States at McAllen, Texas, on March 20, 2008. He applied for asylum on Sept. 30, 2008, claiming in his application that he was traveling across Africa in 2007 and 2008, fleeing persecution in Eritrea. However, according to court documents, Fessahazion was actually in Guatemala during that period facilitating the smuggling of East African aliens to the United States. Fessahazion was granted asylum by the United States on Nov. 13, 2008.
Please give some thought to the statement that Mr. Fessahazion purportedly surreptitiously entered the United States by running our nation's southern border on March 20, 2008 and then applied for political asylum on September 30, 2008, more than six months after he allegedly ran the border. Incredibly, in under six weeks, his application for political asylum was approved! In his application for political asylum he claimed he was facing persecution on the other side of the planet yet USCIS rushed to provide him with political asylum in mere weeks! It is hard to imagine much if anything was done to truly investigate his claims. This "rush to judgment" rewarded Fessahazion with political asylum even though he completely falsified all of the significant relevant facts in his application for political asylum. Furthermore, by granting him political asylum, he had easy access to the borders of the United States which may well have facilitated his human trafficking crimes.
Incredibly, while the ICE-issued news release laid out all of the facts concerning Mr. Fessahazion's false statements in his political asylum application, there was no mention of any criminal charges being brought against him for committing the felony of defrauding the immigration benefits program.
On July 11, 2011, the New York Times ran an important news report entitled:
Here is an excerpt from the news article worth considering:
The man caught on the wiretap urged his immigrant client to fabricate a tragic past if he wanted asylum in the United States. To say that he was a victim of political repression in Albania. Or police brutality. Or even a blood feud.
“Maybe you had to leave because someone threatened to kill you,” the man suggested. “Because of something that your father did to somebody else or something to do with the land. You understand? That can be a way to get asylum.”
Often enough, it is. A shadowy industry dedicated to asylum fraud thrives in New York, where many of the country’s asylum claims are filed. Immigrants peddle personal accounts ripped from international headlines, con artists prey on the newly arrived and nonlawyers offer misguided advice.
I urge the senators of this committee to seek to do much more to make certain that immigration fraud in general become a focus of concern for a number of reasons, beginning with the potential threats that this poses to national security, a particularly worrisome issue in this perilous era. I would further ask that special attention is devoted to uncovering fraud in the VAWA program because of the unique nature of this program- not only are all of the other vulnerabilities that fraud exposes our nation to in play, but because of the pernicious nature of allegations of spousal abuse when no such abuse is involved.
You should also know that when aliens succeed in gaming the system, the word quickly spreads and so more aliens become emboldened to file more fraud-laden applications further eroding any remaining shreds of integrity in this beleaguered system, further enabling still more individuals to defraud the system forcing the overworked and understaffed adjudications officers to attempt to keep up with the avalanche of applications by working ever faster.
I have come to compare the plight of these USCIS Adjudications Officers with the plight of Lucille and her side kick, Ethel in that old television sitcom “I Love Lucy” when they get a job at a candy factory and they are given the job of wrapping morsels of candy that are delivered on the conveyor belt. At first they are able to do the job quite well and then the conveyor belt begins to pick up speed. No matter how fast they work, they cannot keep up. They begin eating some of the bonbons and then they try stuffing them down their clothes but to no avail as the candy on the belt hurtles at them at warp speed.
The image of the lunacy at the candy factory made for a classic bit of hilarious television humor. However, when applications for resident alien status and United States citizenship are flung on the desks of the hapless Adjudications Officers at USCIS in ever greater numbers and ever more quickly, there is no humor to be found. Certainly these USCIS employees cannot eat the applications or the relating immigration files- nor can they stuff them down their clothes.
Requiring that the adjudications process to be continually speeded up in an effort to keep up with the increasing numbers of applications creates a vicious cycle where quality control and integrity of the system become the casualties of this hobbled system. Ultimately the citizens of our nation may well become the real casualties as a significant component of national security falters and fails.
As Senator Grassley knows, just about five years ago the GAO conducted an investigation at his behest and the behest of Senator Sue Collins of Maine into allegations that Adjudications Officers at USCIS were forced to adjudicate 111,000 applications for various immigration benefits including 30,000 such applications for United States citizenship without having access to the relevant immigration files.
I want to take a moment to commend both Senator Grassley and Senator Collins for bringing that unacceptable situation to light. My concern is that similar shortcuts may still be an issue at USCIS and other components of the DHS that deal with immigration related issues and challenges.
I would strongly suggest that taking into account the vulnerability our nation faces where immigration benefit fraud is concerned, coupled with the added concerns about the harm fraud in the VAWA program might do to citizens of lawful immigrants of our nation, there are a number of questions that need to be asked (and answered) of the administration and the leadership of USCIS, to achieve effective oversight:
1. What measures have been implemented to seek to uncover fraud in VAWA and other benefit programs and how successful have these measures been? (How many special agents of ICE or other investigative personnel are assigned to specifically investigating VAWA cases and/or how many investigations are conducted each month? How many investigative hours are expended in this endeavor each month? Are actual interviews conducted in conjunction with VAWA petitions or other applications for immigration benefits?)
2. When it is determined that an alien filed a false claim against a spouse are criminal prosecutions generally sought? If so, how many such prosecutions were conducted last year? Other than seeking to prosecute an alien who is determined to have filed a false claim about spousal abuse are deportation (removal) proceedings also implemented? If so, how many such removal proceedings were implemented last year? How many such aliens were actually ordered removed? How many of those were physically deported from the United States?
3. How many United States citizens were criminally charged with spousal abuse last year as a result of, or in conjunction with, a VAWA petition being filed? Is a record kept of these prosecutions and included in the relevant aliens' immigration files?
4. If it is determined that a VAWA petition was fraudulent, is any routine procedure in place at USCIS, or have any instructions been provided to USCIS employees, to make certain that the United States citizen or resident alien who is accused of such spousal abuse provided with any exculpatory documentation that could be used by that citizen or resident alien in his (her) defense should criminal charges have been brought against that person? The point is that it is important to make certain that vulnerable aliens are not taken advantage of by unscrupulous United States citizen or resident alien spouses, but it is certainly no less important that the rights of U.S. citizens and resident aliens are also protected and safeguarded.
5. Is there anything in the job description or the critical elements of the evaluations of adjudications officers who process VAWA petitions that place emphasis on seeking to uncover fraud in these petitions or is the focus of their evaluations on how many applications they can process in a given day? There is an obvious inverse proportion between quantity of work and quality of work. It would certainly seem that in a string of GAO and OIG reports that the adjudications officers of USCIS are constantly under pressure to move the applications as quickly as possible, exacerbating the challenges to creating even a modicum of integrity to this critical process that impacts national security and can have a profound impact on the lives of so many people including United States citizen and resident alien spouses who file petitions for their aliens spouses and are then alleged to have abused those spouses. Is anything being done to address this serious problem?
Critical elements in an evaluation serve as the “marching orders” for employees who are being evaluated. It is all well and good for management at an agency to say that they are attempting to combat fraud, for example, however, the way employees are evaluated and the percentage of the resources are allocated to actually combat fraud will provide the sort of real insight that empty statements by bureaucrats will not.
In closing, I want to point out that the raison d'être for our nation's military, law enforcement organizations on all levels, firefighters and all other similar governmental organizations is to protect our nation and our citizens.
Similarly, our nation's borders and immigration laws are supposed to protect our nation and our citizens. I would urge you to see the effective enforcement and administration of our nation's immigration laws as a major factor in the protection of our citizens from aliens whose presence in our country represents a threat to our well being and as an adjunct to the efforts of our military services to protect our nation.
Aliens who commit fraud should expect to face real world consequences and aliens who, in committing that fraud and, in so doing, do harm to citizens or resident aliens who attempted to help them acquire resident alien status and a legal, legitimate pathway to United States citizenship must especially be made accountable before the bar of justice, not only to punish those guilty of such a heinous crime, but as a way of deterring anyone who might contemplate exploiting such a strategy to game the immigration system and inflict such profound harm on our citizens.
This would be an effective way of helping to attain the goal of truly having a government that is “of the people, by the people and for the people” as President Lincoln so eloquently called for during his Gettysburg Address.
FamilySecurityMatters.org Contributing Editor Michael Cutler is a Fellow at the Center for Immigration Studies and a recognized authority who addresses the implications of immigration on national security and criminal justice. Today, Friday, July 15th from 4:00 PM, Eastern Daylight Savings Time, until 5:00 PM EDT, he will be guest hosting on the USA Talk Radio Network, "The American Hour Radio Show." The call-in number is: 310-982-4145.