Prepared by: Mary Moutsos

Date Prepared: March 24, 2003 DOC Number: 852199

Job Code: 320172

Record of Interview
Title Interview at Immigration and Naturalization Service
Purpose Interview Sarah Kendall, Chief of the National Security
Division, INS

Contact Method In-person interview

Contact Place INS

Contact Date Feb. 27,2003
Participants
INS Sarah Kendall, Attorney, Chief of National Security Division
Cathy Muhletaler, Attorney Liaison

GAP IAT: Judy McCloskey, Kate Brentzel, TAJ: Jay Jennings

OGC: Nancy Finley, Mary Moutsos

Comments/Remarks:

The team met with Sarah Kendall to discuss two legal issues related to the job. The issues are
outlined as follows:

LEGAL ISSUE RELATED TO THE VISA REVOCATIONS:

1) Alien entered the country with a valid visa. Subsequently, the visa was revoked. INS has
told us they are investigating the individuals, but, practically speaking, if the aliens are in status
then there is little the INS can do.
a. Removal proceedings: the INS could under the law institute removal proceeding
against the alien. However, this could be problematic particularly if the revocation is
based on classified information since such information would have to be disclosed to the
alien, in some form, sometime during the removal process.
i. Basing proceeding on inadmissibility could require the disclosure of classified
material: if the removal proceeding are based on the fact that the alien is
inadmissible under 212(a)(3)(B) then at the removal proceedings under INA § 240
the alien would have to be apprised in some manner of the basis of the charges
against him. As a result, according to Sara Kendall, the agencies do not want to
authorize the release of the classified information because either it could
jeopardize the ongoing investigation or reveal sources and methods.
1. Section §240(a)(4)(B) says that the alien shall have a reasonable
opportunity to examine the evidence against the alien...but these rights

Page 1 Record of Interview

Prepared by: Mary Moutsos
Date Prepared: March 24, 2003 DOC Number: 852199
Job Code: 320172

shall not entitle the alien to examine such national security information as
the Government may proffer in opposition to the aliens admission.
2. Sarah Kendall told us that, generally, the alien would receive an
unclassified summary of the information and the judge would receive the
classified information.
ii. Basing proceeding on revocation could still result in disclosure of classified
material: according to Sarah Kendall, the INS could argue that the alien is
deportable because the alien was inadmissible at the time the alien entered the
country (probably under 237(a)(l)(A) - alien who at time of entry was within a
class of aliens inadmissible by law at such time is deportable). That may allow
the US not to have to divulge any classified information at that part of the
proceeding (just have State say, yep we revoked the visa), but even if the judge
allowed that, once the issue of bail was discussed, the US would have to divulge
why bail is not permissible in this case. At such a point, the US would have to
divulge that the alien is a security threat and thus, divulge the classified
information upon which the US is basing its determination.
b. Detention of the alien prior to any removal proceedings: under 8 CFR § 287.3 the
INS is allowed to take an alien into custody, though they must charge the alien with
some immigration offense or release the alien within 48 hours of the alien being taken
into custody, or a reasonable period of time in the case of an emergency. Thus,
detention of the alien is not an option unless the alien can be charged with some
immigration violation (aside from violations that require the US to divulge classified
information during the immigration proceedings).

LEGAL ISSUES RELATED TO THE SIDE ISSUE REGARDING WHEN A REVOCATION is THE PROPER OPTION
AND WHEN REMOVAL PROCEEDINGS ARE THE PROPER OPTION TO PREVENT AN INADMISSIBLE ALIEN
FROM ENTERING THE US AT THE POE:

Two scenarios help explain this side legal issue that INS and State have brought up with us in
interviews:

1) An alien arrives at POE and the visa has already been revoked. Both State and INS
agree that the alien in inadmissible because the alien does not have a valid visa.

2) Alien arrives at the POE and the visa is valid but the inspector has reason to
believe the alien is inadmissible (i.e. information contained in one of the
databases). State and INS have, according to INS, a disagreement over what is the proper
course at this point.
a. State: a revocation is not the proper course once the alien has entered into the
inspection process. Rather removal is the option at this point. (According to INS
officials)
b. INS: says that the fact that the alien has not yet been admitted to the county, but
rather is in the inspection process, makes a revocation of the visa the cleanest and
easiest recourse in such a situation.

Page 2 Record of Interview

Prepared by: Mary Moutsos
Date Prepared: March 24, 2003 DOC Number: 852199
Job Code: 320172

i. With a revocation the alien can effectively be turned around at the border.
The legal process is done under the expedited removal proceedings as
follows: under 212(a)(7)(B) an alien is inadmissible if they do not have the
proper travel documents, i.e. a necessary visa. Under 235(b)(l)(A)(i) if an
alien is inadmissible under 212(a)(7)(B), then the inspection officer shall
order the alien removed from the US without further hearing or review (unless
the alien applies for asylum.) Thus, the alien is removed without further due
process. This provision also applies to aliens who are inadmissible because
they engaged in fraud or misrepresentation in gaining travel documents or
entry into the US, under 212(a)(6)(C).
ii. If revocation or expedited removal are not used, then INS would have to do
removal proceeding at the border which does afford the alien some due
process. Section 240 of the INA states that an immigration judge shall
conduct proceedings for deciding the inadmissibility or deportability of an
alien. Section 240 also gives the alien certain due process rights, including
being given a reasonable opportunity to examine the evidence against the
alien.
1. There is a provision that allows for removal of aliens inadmissible on
security related grounds. Here alien would get unclassified summary of
evidence, according to Sarah Kendall. Also according to Sarah Kendall,
§ 235(c) is rarely used because of the secret nature of the proceedings.

Page 3 Record of Interview