House Report 112-411 - SECURE VISAS ACT

[House Report 112-411]
[From the U.S. Government Publishing Office]

112th Congress Rept. 112-411
HOUSE OF REPRESENTATIVES
2d Session Part 1

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SECURE VISAS ACT

_______

March 8, 2012.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed

_______

Mr. Smith of Texas, from the Committee on the Judiciary,
submitted the following

R E P O R T

together with

ADDITIONAL VIEWS

[To accompany H.R. 1741]

[Including cost estimate of the Congressional Budget Office]

The Committee on the Judiciary, to whom was referred the
bill (H.R. 1741) to authorize the Secretary of Homeland
Security and the Secretary of State to refuse or revoke visas
to aliens if in the security or foreign policy interests of the
United States, to require the Secretary of Homeland Security to
review visa applications before adjudication, to provide for
the immediate dissemination of visa revocation information, and
for other purposes, having considered the same, reports
favorably thereon with an amendment and recommends that the
bill as amended do pass.

CONTENTS

Page
The Amendment.................................................... 2
Purpose and Summary.............................................. 3
Background and Need for the Legislation.......................... 3
Hearings......................................................... 13
Committee Consideration.......................................... 14
Committee Votes.................................................. 14
Committee Oversight Findings..................................... 17
New Budget Authority and Tax Expenditures........................ 17
Congressional Budget Office Cost Estimate........................ 17
Performance Goals and Objectives................................. 20
Advisory on Earmarks............................................. 21
Section-by-Section Analysis...................................... 21
Changes in Existing Law Made by the Bill, as Reported............ 21
Committee Jurisdiction Letters................................... 26
Additional Views................................................. 28

The Amendment

The amendment is as follows:
Strike all after the enacting clause and insert the
following:

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Secure Visas Act''.

SEC. 2. VISA REFUSAL AND REVOCATION.

(a) Authority of the Secretary of Homeland Security and the Secretary
of State.--
(1) In general.--Section 428 of the Homeland Security Act of
2002 (6 U.S.C. 236) is amended by striking subsections (b) and
(c) and inserting the following:
``(b) Authority of the Secretary of Homeland Security.--
``(1) In general.--Notwithstanding section 104(a) of the
Immigration and Nationality Act (8 U.S.C. 1104(a)) or any other
provision of law, and except for the authority of the Secretary
of State under subparagraphs (A) and (G) of section 101(a)(15)
of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)),
the Secretary--
``(A) shall have exclusive authority to issue
regulations, establish policy, and administer and
enforce the provisions of the Immigration and
Nationality Act (8 U.S.C. 1101 et seq.) and all other
immigration or nationality laws relating to the
functions of consular officers of the United States in
connection with the granting and refusal of a visa; and
``(B) may refuse or revoke any visa to any alien or
class of aliens if the Secretary, or designee,
determines that such refusal or revocation is necessary
or advisable in the security interests of the United
States.
``(2) Effect of revocation.--The revocation of any visa under
paragraph (1)(B)--
``(A) shall take effect immediately; and
``(B) shall automatically cancel any other valid visa
that is in the alien's possession.
``(3) Judicial review.--Notwithstanding any other provision
of law, including section 2241 of title 28, United States Code,
or any other habeas corpus provision, and sections 1361 and
1651 of such title, no court shall have jurisdiction to review
a decision by the Secretary of Homeland Security to refuse or
revoke a visa, and no court shall have jurisdiction to hear any
claim arising from, or any challenge to, such a revocation.
``(c) Authority of the Secretary of State.--
``(1) In general.--The Secretary of State may direct a
consular officer to refuse a visa requested by, or revoke a
visa issued to, an alien if the Secretary of State determines
such refusal or revocation to be necessary or advisable in the
interests of the United States.
``(2) Limitation.--No decision by the Secretary of State to
approve a visa may override a decision by the Secretary of
Homeland Security under subsection (b).''.
(2) Effective date.--The amendment made by paragraph (1)
shall take effect on the date of the enactment of this Act and
shall apply to visa refusals and revocations occurring before,
on, or after such date.
(b) Issuance of Visas at Designated Consular Posts and Embassies.--
(1) In general.--Section 428(i) of the Homeland Security Act
of 2002 (6 U.S.C. 236(i)) is amended to read as follows:
``(i) Visa Issuance at Designated Consular Posts and Embassies.--
Notwithstanding any other provision of law, except section 207 of the
Foreign Service Act of 1980 (22 U.S.C. 3927) and the process
established by the President for determining appropriate staffing at
diplomatic missions and overseas constituent posts, the Secretary of
Homeland Security--
``(1) shall conduct an on-site review of all visa
applications and supporting documentation before adjudication
at all visa-issuing posts in Algeria; Canada; Colombia; Egypt;
Germany; Hong Kong; India; Indonesia; Iraq; Jerusalem, Israel;
Jordan; Kuala Lumpur, Malaysia; Kuwait; Lebanon; Mexico;
Morocco; Nigeria; Pakistan; the Philippines; Saudi Arabia;
South Africa; Syria; Tel Aviv, Israel; Turkey; United Arab
Emirates; the United Kingdom; Venezuela; and Yemen; and
``(2) is authorized to assign employees of the Department to
each diplomatic and consular post at which visas are issued
unless, in the Secretary's sole and unreviewable discretion,
the Secretary determines that such an assignment at a
particular post would not promote national or homeland
security.''.
(2) Expedited clearance and placement of department of
homeland security personnel at overseas embassies and consular
posts.--The Secretary of State shall accommodate and ensure--
(A) not later than 1 year after the date of the
enactment of this Act, that Department of Homeland
Security personnel assigned by the Secretary of
Homeland Security under section 428(i)(1) of the
Homeland Security Act of 2002 have been stationed at
post such that the post is fully operational; and
(B) not later than 1 year after the date on which the
Secretary of Homeland Security designates an additional
consular post or embassy for personnel under section
428(i)(2) of the Homeland Security Act of 2002 that the
Department of Homeland Security personnel assigned to
such post or embassy have been stationed at post such
that the post is fully operational.
(c) Visa Revocation.--
(1) Information.--Section 428 of the Homeland Security Act of
2002 (6 U.S.C. 236) is amended by adding at the end the
following:
``(j) Visa Revocation Information.--If the Secretary of Homeland
Security or the Secretary of State revokes a visa--
``(1) the relevant consular, law enforcement, and terrorist
screening databases shall be immediately updated on the date of
the revocation; and
``(2) look-out notices shall be posted to all Department of
Homeland Security port inspectors and Department of State
consular officers.''.
(2) Effect of visa revocation; judicial review of visa
revocations.--
(A) In general.--Section 221(i) of the Immigration
and Nationality Act (8 U.S.C. 1201(i)) is amended by
striking the final sentence and inserting the
following: ``A revocation under this subsection shall
take effect immediately and shall automatically cancel
any other valid visa that is in the alien's possession.
Notwithstanding any other provision of law, including
section 2241 of title 28, United States Code, or any
other habeas corpus provision, and sections 1361 and
1651 of such title, a revocation under this subsection
may not be reviewed by any court, and no court shall
have jurisdiction to hear any claim arising from, or
any challenge to, such a revocation.''.
(B) Effective date.--The amendment made by
subparagraph (A) shall take effect on the date of the
enactment of this Act and shall apply to revocations
under section 221(i) of the Immigration and Nationality
Act (8 U.S.C. 1201(i)) occurring before, on, or after
such date.

Purpose and Summary

H.R. 1741, the ``Secure Visas Act,'' helps ensure security
of the visa issuance process through the establishment of Visa
Security Units (VSUs) at all high risk consular posts and
ensures that there shall be no judicial review of any visa
revocation decision in order to safeguard national security.

Background and Need for the Legislation

A. VISA ISSUANCE PROCESS

The Department of State receives applications for entry
into the United States by aliens and issues visas for those
approved to emigrate or visit. Before traveling to the United
States, a citizen of a foreign country who seeks to enter the
U.S. generally must first obtain a U.S. visa, which is placed
in the traveler's passport, a travel document issued by the
traveler's country of citizenship.\1\ A citizen of a foreign
country must generally obtain a nonimmigrant visa for a
temporary stay or an immigrant visa for permanent residence.
The type of visa needed depends on the purpose of the travel.
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\1\Nationals of visa waiver program countries do not need visas for
visits as tourists for up to 90 days.
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Having a U.S. visa allows an alien to travel to a port of
entry, airport or land border crossing, and request permission
of a U.S. Customs and Border Protection (CBP) inspector to
enter the U.S. While having a visa does not guarantee entry to
the U.S., it does indicate a consular officer at a U.S. Embassy
or Consulate abroad has determined that an alien is eligible to
seek entry for a specific purpose. CBP inspectors, guardians of
the nation's borders, are responsible for the admission into
the country of travelers to the U.S., for a specified status
and period of time.

B. VISA SECURITY PROGRAM

The September 11, 2001, hijackers would not have been able
to carry out attacks in the United States if they had been
unable to enter the country from the onset. They received valid
visas to enter the U.S. in order to harm our nation--
demonstrating the relative ease of obtaining a U.S. visa and
gaining admission to the United States.\2\
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\2\See generally, 9/11 and Terrorist Travel, Staff Report on the
National Commission on Terrorist Attacks upon the United States (2004).
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The 19 hijackers applied for 23 visas and obtained 22. They
began the process of obtaining visas almost two and half years
before the attack. At the time, consular officers were unaware
of the potential indications of a security threat posed by
these visa applicants who were in reality terrorists. Consular
officers had no information about fraudulent travel stamps
associated with Al Qaeda and were not trained in terrorist
travel tactics generally.\3\
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\3\Id. at 2.
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Most of the operatives selected were Saudis, who had little
difficulty obtaining visas. The mastermind of the operation,
Khalid Sheikh Mohammed, used a travel facilitator to acquire a
visa on July 23, 2001, in Jeddah, Saudi Arabia, using an alias.
The 9-11 Commission determined that, ``[f]or terrorists,
travel documents are as important as weapons. Terrorists must
travel clandestinely to meet, train, plan, case targets, and
gain access to attack. To them, international travel presents
great danger, because they must surface to pass through
regulated channels, present themselves to border security
officials, or attempt to circumvent inspection points.''\4\
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\4\National Commission on Terrorist attacks upon the United States,
The 9/11 Commission Report, 384 (2004).
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Following the 9/11 attacks, Congress gave serious
consideration to removing the visa issuance function from the
Department of State (DOS) and placing it under the authority of
the newly-established Department of Homeland Security (DHS).
Such an arrangement would have placed this immigration-related
function in the agency with primary authority over immigration
matters, and it would have addressed the many serious concerns
(which pre-dated 9/11) about the State Department's penchant
for treating the consular visa-issuance function more as a
public diplomacy and foreign relations tool than as a function
fundamentally about national security, law enforcement, and
immigration compliance. As a result of a compromise reached in
the 2002 Homeland Security Act, the State Department retained
its consular visa-issuance function, while section 428 of that
Act gave DHS authority to ``to issue regulations with respect
to, administer, and enforce the provisions of such Act, and of
all other immigration and nationality laws, relating to the
functions of consular officers of the United States in
connection with the granting or refusal of visas, and shall
have the authority to refuse visas in accordance with law.''\5\
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\5\Sec. 428 of Pub. L. No. 107-296.
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Section 428 created the Visa Security Program (VSP), and
authorized the Secretary of Homeland Security ``to assign
employees of the Department to each diplomatic and consular
post at which visas are issued, unless the Secretary determines
that such an assignment at a particular post would not promote
homeland security.''\6\
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\6\Id.
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Whatever the Homeland Security Act provided, in practice
U.S. Immigration and Customs Enforcement (ICE) must obtain the
approval not only from DHS headquarters to establish new
overseas presences, but also from the chief of mission at each
diplomatic post and from DOS headquarters. One of the major
obstacles has often been the local embassy leadership, who may
see an ICE presence as an invasion of the jurisdiction that
traditionally belonged to Consular Affairs or to DOS's Regional
Security Officer who is tasked with reviewing visa applications
and screening applicants to prevent fraud and to avoid issuance
of visas to criminals or terrorists.
With an average office size of two employees, VSP units,
also known as VSUs, screen all visa applicants submitted at the
Consular Office through DHS databases and conduct targeted
reviews of those applicants considered high-risk. According to
information provided by ICE, it costs approximately $2.2
million to open a new VSP unit. The cost covers two-three
employees, technology, and vehicles.\7\ No funding was
requested in the DHS FY 2011, FY 2012 or FY 2013 budgets to
expand VSP units to additional locations.\8\
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\7\Presidential Budget for FY 2012.
\8\Id.
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To date, DHS has established VSP posts at only 19 locations
with a presence in 15 countries. However, there is a list of
over 50 designated ``high-risk'' posts. The opposition from DOS
in expanding VSUs and DHS authority in this area is
particularly objectionable, because the Homeland Security Act
does not give DOS any power to veto or resist DHS's choice of
posts at which VSP officers would ``promote homeland
security.''\9\
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\9\See Section 428 of the Homeland Security Act of 2002, Pub. L.
No. 107-296.
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Opposition from DOS or from parochial interests in
individual embassies has not been the only obstacle to
implementation of VSP to the full extent of available
appropriations. In fact, DHS has left VSU requests pending for
several months in the past. For instance, a request from ICE in
September 2008 was sent to the Secretary of Homeland Security
for approval to create a VSP office in Yemen, but that request
was not approved by Secretary Napolitano until January 15,
2010, and finally on February 16, 2010, by the Secretary of
State. And it was approved only when it came to light that the
Christmas Day bomber had ties to Yemen.
Additionally, on February 10, 2010, DOS notified ICE that
its request for a VSU in Jerusalem was denied due to ``the
principles of rightsizing,'' and explained that DOS believed
its personnel onsite could perform the visa-screening
function.\10\ Congress was notified of this decision on
February 16, 2010, and 2 days later a revised cable from the
American Consulate in Jerusalem was delivered reversing the
decision and approving the conditional establishment of the
VSU.
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\10\See American Consulate in Jerusalem unclassified cable to
Secretary of State, February 10, 2010.
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The existing memorandum of understanding (MOU) between DOS
and DHS states that a consular officer will not issue a visa
over the objection of the VSP unit until the objection has been
resolved.\11\ Thus, the Secretary of Homeland Security does
have the authority to prevent a Consular Office from issuing a
visa if an objection cannot be resolved. According to ICE, the
Secretary has only used this authority once--in 2005.
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\11\See Memorandum of Understanding Among U.S. Immigration and
Customs Enforcement of the Department of Homeland Security and the
Bureau of Consular Affairs and Diplomatic Security of the Department of
State on Roles, Responsibilities, and Collaboration at Visa Security
Units Abroad (January 11, 2011).
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VSPs are currently present and operational in Abu Dhabi,
Frankfurt, Amman, Cairo, Caracas, Casablanca, Dhahran, Dubai,
Hong Kong, Islamabad, Jakarta, Jeddah, London, Manila,
Montreal, Tel Aviv, Jerusalem, Sana'a, and Riyadh. ICE plans to
expand the program to include two more VSP units by the end of
2013. One will be located in Kenya and the other one will be in
Turkey. ICE has informed the Committee that if additional
funding is identified potential sites for the VSP include,
Beirut, and Karachi.
On March 31, 2011, the Government Accountability Office
(GAO) issued a report on visa security and assessed (1) the
ability of ICE to measure the program's objectives and
performance, (2) challenges to VSP operations, and (3) ICE
efforts to expand the VSP program.\12\
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\12\Government Accountability Office: Border Security: DHS's Visa
Security Program Needs to Improve Performance Evaluation and Better
Address Visa Risk Worldwide (March 31, 2011).
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The GAO concluded that ICE does not accurately track data
regarding the progress toward its VSP objectives of 1)
identifying and counteracting potential terrorist threats from
entering the United States, 2) identifying not-yet-known
threats and maximizing law enforcement and counterterrorism
value of the visa process, and 3) establishing performance
measures intended to assess VSP performance, including
situations where VSP agents provide information that results in
a consular officer's decision to deny a visa.\13\
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\13\Id. at ``Highlights''.
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According to GAO, the source of the problem is ICE's VSP
tracking system (VSPTS) which is used to collect data on VSP
activities. GAO maintains that this system does not gather
comprehensive data on all the performance measures needed to
evaluate VSP mission objectives. In addition, data collected by
ICE on VSP activities were limited by inconsistencies. Despite
upgrades, the system still does not collect data on all the
performance measures. Therefore, ICE's ability to evaluate the
performance of the VSP remains limited. ICE also has not
reported on the progress made toward achieving all VSP
objectives. Additionally, despite the MOU, confusion remains at
post between DHS VSP agents and DOS consular officials
regarding certain roles and operating practices.\14\
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\14\Id. at 10-16, 27.
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DHS did not concur with the recommendations that the VSP
collect comprehensive data on all performance measures and
track the time spent on visa security activities. GAO continues
to maintain that these recommendations are necessary to
accurately assess VSP performance. With respect to these non-
concurrences, DHS maintains that the VSP captures all required
data with respect to its 5 year plan through VSPTS and Treasury
Enforcement Communication System and that additional tracking
through VSPTS would be redundant.\15\
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\15\Id. at 27 and 34-35.
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The GAO report claims some posts experienced difficulties
because of the limited guidance regarding interactions between
DOS officials and VSP agents, which has led to tensions between
the VSP agents and DOS officials. In addition, most VSP posts
have not developed standard operating procedures for VSP
operations, leading to inconsistency among posts. Additionally,
the mandated advising and training of consular officers by VSP
agents varies from post to post, and at some posts consular
officers received no training.\16\
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\16\Id. at 14-15.
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DHS also did not concur in the recommendation requiring
additional standard operational guidance. DHS maintains that
additional operational guidance is not necessary as these
issues are addressed by the MOU. Standard procedures across all
posts would prove overly restrictive, given that each VSP post
has an individualized plan for its location.\17\
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\17\Id. at 34-35.
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According to GAO, in 2007, ICE developed a 5-year expansion
plan for the VSP, but ICE has not fully followed or updated the
plan. For instance, ICE did not establish nine posts identified
for expansion in 2009 and 2010. Furthermore, the expansion plan
states that risk analysis is the primary input to VSP site
selection, and ICE, with input from DOS, ranked visa-issuing
posts by visa risk, which includes factors such as the
terrorist threat and vulnerabilities present at each post.
However, 11 of the top 20 high-risk posts identified in the
expansion plan are not covered by the VSP. Furthermore, ICE has
not taken steps to address visa risk in high-risk posts that do
not have a VSP presence. Although the expansion of the VSP is
limited by a number of factors, such as budgetary limitations
or limited embassy space, ICE has not identified possible
alternatives that would provide the additional security of VSP
review at those posts that do not have a VSP presence.\18\
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\18\Id. at 24-26.
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DHS concurred with the recommendations that the VSP provide
consular officer training and develop a plan to provide more
VSP coverage at high-risk posts.\19\
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\19\Id. at 34-35.
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C. THE CURRENT THREAT ENVIRONMENT

Then CIA Director Leon Panetta testified before the House
Permanent Select Committee on Intelligence on Tuesday, February
2, 2010. According to Director Panetta, of the key threats that
America faces, the greatest concern was Al Qaeda, and the
possibility it could again attack the U.S. here at home. Al
Qaeda members are adapting their methods, making them more
difficult to detect and posing an even greater threat to the
U.S. In addition, Al Qaeda is moving to other safe havens, such
as those found in Yemen and Somalia.
According to Director Panetta, Al Qaeda is pursuing an
effort to strike at the United States by deploying individuals
to this country. The U.S. has had a series of arrests of
individuals inside the country attempting to carry out such a
plot, through the use of terrorists with ``clean credentials,''
i.e. terrorists who do not have a history of terrorism that has
come to the intelligence community's attention, and loner-
individuals, who, through self-radicalization, engage in
attacks by themselves.
Abdul Farouk Abdulmutallab: The Christmas Day Bomber
On December 25, 2009, 23-year-old Nigerian national Abdul
Farouk Abdulmutallab attempted to detonate an improvised
explosive device (IED) he smuggled onboard Northwest Airlines
Flight 253 from Amsterdam to Detroit. The IED did not explode
but instead caught fire. Alert passengers and crew immediately
restrained Abdulmutallab until he was taken into custody by CBP
officers after an emergency landing at Detroit Metropolitan
Airport.
In June 2004, Abdulmutallab applied for a B2 tourist visa
from Lome', Togo, where he attended boarding school. This
application was denied because Togo was not Abdulmutallab's
home country.\20\ In July 2004, he applied for the same type of
visa, this time from Lagos, Nigeria. That visa was issued for a
time period of 2 years (standard U.S. visa reciprocity policy
with Nigeria provides that a tourist visa is valid for 2
years). Abdulmutallab traveled to the United States on this
visa, from July 25, 2004, to August 5, 2004. The visa expired
in July 2006.
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\20\Information from DOS.
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In June 2008, Abdulmutallab once again applied for a B2
tourist visa. This time he applied at the embassy in London,
where he was then attending school. The visa, valid for 2
years, was issued. He entered the United States from August 1,
2008, to August 17, 2008, to attend a religious conference in
Texas. He used this same visa to come to the United States on
December 25, 2009.\21\
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\21\Id.
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In May 2009, the UK denied Abdulmutallab's application for
renewal of his student visa. According the British Home
Secretary, Alan Johnson, the application was rejected ``after
officials had determined that the academic course he gave as
his reason for returning to Britain was fake.''\22\
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\22\John F. Burns, Britain Rejected Visa Renewal for Suspect, The
New York Times, Dec. 28, 2009.
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On November 19, 2009, Abdulmutallab's father, Dr. Umaru
Abdulmutallab, appeared at the U.S. Embassy in Abuja, Nigeria,
and told officials with the State Department and CIA that his
son had vanished and expressed concern that he had ``fallen
under the influence of religious extremists in Yemen.''
According to ABC News, the father's visit with the U.S.
authorities was arranged by Nigerian intelligence officials,
who the senior Abdulmutallab had contacted after receiving a
call from his son that made him fear that his son might be
planning a suicide mission in Yemen.\23\
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\23\Dana Hughes & Kirt Radis, `Underwear Bomber's' Alarming Last
Phone Call, ABC News, December 31, 2009, available at http://
abcnews.go.com/WN/bombers-phone-call-father/story?id=9457361.
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On November 20, the embassy sent out a so-called ``Visa
Viper'' report to U.S. embassies around the world stating that
Abdulmutallab might be associating with extremists in Yemen.
The State Department ran a check to see if Abdulmutallab had an
active U.S. visa, but a misspelling of his name led DOS to
believe that he did not have a valid visa. Therefore, the
report did not contain any reference to Abdulmutallab's visa
status. Nor, according to DOS officials, did the Visa Viper
report mention that the concern arose from the subject's own
father or that the father was a credible and high-ranking
Nigerian official.
DOS corrected the misspelling of Abdulmutallab's name in
the Visa Viper report 2 days later in a supplementary notice.
The CIA station in Nigeria prepared two more robust reports,
one of that was sent to Langley, while the other remained in
Nigeria in draft form and was only circulated after the attack.
The government of Yemen claims the information was not shared
with Yemeni officials.
The State Department's Visa Viper report was received in
Washington and entered into the Terrorist Identities Datamart
Environment (TIDE), a large database administered by the
National Counterterrorism Center which reportedly contains
550,000 names of people with suspected ties to terrorist
organizations or activities. The TIDE database constitutes the
lowest level (and the broadest) of the government's data
sources on potential terrorists, and reportedly includes many
duplicate records and ``false positives'' due to misspelled or
alternate names. Ultimately, DOS never revoked his visa.
Following the Christmas Day bombing attempt by
Abdulmutallab, it was learned that he had ties to Al Qaeda and
had received training and support for his botched terrorist
attempt in Yemen.

D. VISA REVOCATION

After a visa has been issued, a consular officer has the
discretionary authority to revoke a visa at any time. In fact,
in his January 20, 2010, testimony before the Senate Judiciary
Committee, Department of State Undersecretary for Management
Patrick Kennedy stated, ``since 2001 we have revoked over
51,000 visas . . . including over 1,700 for suspected ties to
terrorism.''
Under DOS procedures, when derogatory information about an
individual comes to light after a visa is issued, consideration
is given to whether it would be prudent to revoke the visa. DOS
officials sometimes prudentially revoke visas, i.e., they
revoke a visa as a safety precaution to ensure that all
relevant or potentially relevant facts about the applicant are
thoroughly explored. Prudential revocations are precautionary
actions that can be taken when the alien's admissibility is
deemed to raise national security concerns. Although DOS has
previously testified to Congress about this being a ``low
threshold,'' they have recently indicated they would not
prudentially revoke a visa for security reasons unless there
was an ``immediate threat'' or at least more than what
Abdulmutallab's father provided.\24\
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\24\Testimony of Janice L. Jacobs, Deputy Assistant Secretary of
State for Visa Services, hearing before the Senate Comm. on the
Judiciary's Subcomm. on Immigration, Border Security and Citizenship,
Visa Issuance, Information Sharing and Enforcement in a Post-9/11
Environment: Are We Ready Yet?, July 15, 2003.
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While DHS has clear authority over the policies to grant or
deny visas, from a legal authority perspective the role of DHS
in the visa revocation process is unclear. As previously
stated, the law specifically provides that after a visa has
been issued, a consular officer has the discretionary authority
to revoke a visa at any time. The statute makes no mention of
DHS, and there is no explicit grant of authority DHS in section
428 of the Homeland Security Act to revoke a visa.
Nonetheless, it could be argued that DHS, through the broad
language of section 428, is granted the ability to revoke as it
is a matter ``relating to the functions of consular officers of
the United States in connection with the granting or refusal of
visas.''\25\ Furthermore, the MOU between DOS and DHS on the
implementation of section 428 provides that ``if the Secretary
of Homeland Security decides to exercise the authority to
refuse a visa in accordance with law, or to revoke a visa, the
Secretary of Homeland Security shall request the Secretary of
State to instruct the relevant consular officer to refuse or
revoke the visa.''\26\ This language appears to acknowledge the
authority of the Secretary of Homeland Security to revoke a
visa; however, it also seems to indicate that the Secretary of
State has final say over the revocation.
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\25\Sec. 428 of Pub. L. No. 107-296.
\26\Memorandum of Understanding Between the Secretaries of State
and Homeland Security Concerning Implementation of Section 428 of the
Homeland Security Act of 2002, Sept. 26, 2003, at 8 (emphasis added).
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The MOU also bars the Secretary of Homeland Security from
delegating the visa refusal or revocation decision outside DHS
headquarters, effectively making it impossible for the
Secretary to pass this responsibility to the Assistant
Secretary for ICE, who has direct authority for the DHS program
that monitors visa issuance and identifies security or fraud
threats.

E. REMOVAL PREDICATED ON VISA REVOCATION DECISIONS

GAO issued a report in 2003 finding that ``30 individuals
whose visas were revoked on terrorism grounds entered the
United States either before or after revocation and may still
remain in the country'' and that ``INS and the FBI were not
routinely taking actions to investigate, locate, or resolve the
cases of individuals who remained in the United States after
their visas were revoked.''\27\ GAO expressed concern that
``there is heightened risk that suspected terrorists could
enter the country with revoked visas or be allowed to remain
after their visas are revoked without undergoing investigation
or monitoring.''\28\
---------------------------------------------------------------------------
\27\U.S. General Accounting Office, Border Security: New Policies
and Procedures Are Needed to Fill Gaps in the Visa Revocation Process
(GAO-03-798) 4 (2003)(footnotes omitted).
\28\Id. at 27.
---------------------------------------------------------------------------
There are two underlying factors which contributed to this
state of affairs. First, DOS revocation certificates state that
in the case of aliens present in the United States, revocation
are not effective until after the aliens' departure from the
United States.\29\ Second, it is unclear as to whether the fact
of revocation in and of itself was a grounds for removing an
alien who had been admitted to the U.S.--``A visa revocation by
itself [was] not a stated grounds for removal under the
Immigration and Nationality Act''\30\; INS (the predecessor
agency to ICE) investigators ``believed that under the INA, the
visa revocation itself does not affect the alien's legal status
in the United States.''\31\ The GAO found that ``[the] issue of
whether a visa revocation, after an alien is admitted on that
visa, has the effect of rendering the individual out-of-status
is unresolved legally. . . .''\32\
---------------------------------------------------------------------------
\29\Id. at 25.
\30\Id. at 5 (footnote omitted).
\31\Id. at 25.
\32\Id.
---------------------------------------------------------------------------
While the INS could have initiated deportation proceedings
against an alien on the basis of other grounds of removal--such
as terrorist activity, this was problematic. The burden of
proof is on the government in deportation proceedings against
admitted aliens. Compounding this fact:

INS officials stated that the State Department provides
very little information or evidence relating to the
terrorist activities when it sends the revocation
notice to INS. Without sufficient evidence linking the
alien to any terrorist-related activities, INS cannot
institute removal proceedings on the basis of that
charge. [E]ven if there is evidence, INS officials
said, sometimes the agency that is the source of the
information will not authorize the release of that
information because it could jeopardize ongoing
investigations or reveal sources and methods. . . . INS
officials state that sometimes the evidence that is
used to support a discretionary revocation from the
Secretary of State is not sufficient to support a
charge of removing an alien in immigration proceedings
before an immigration judge. [State Department
officials] said that most of the time, the information
on which these revocations is based is classified.

. . . .

At some point in the proceedings . . . in establishing
that the alien is removable . . . the government could
be called on to disclose any classified or law
enforcement sensitive information that serves as the
basis of the charges against the alien. According to
INS attorneys, this can be challenging since many times
the law enforcement or intelligence agencies that are
the source of the information may not authorize the
release of that information because it could jeopardize
ongoing investigations or reveal sources and
methods.\33\
---------------------------------------------------------------------------
\33\Id. at 25, 35.

After the GAO report was issued, DHS and DOS entered into
an agreement whereby DOS agreed to revoke visas retroactive to
the time of issuance on a case-by-case basis if requested by
DHS.\34\ The State Department, however, had concerns regarding
``the litigation risks involved in removing aliens based on
visa revocations'', wanting to ``avoid steps that will weaken
our ability to use revocations flexibly and aggressively to
protect homeland security'' and to avoid ``a situation in which
courts start second-guessing our revocation decisions.''\35\
---------------------------------------------------------------------------
\34\See Hearing before the House Committee on Government Reform's
Subcommittee on National Security, Emerging Threats, and International
Relations, 108th Cong. (2004)(statement of Tony Edson, Managing
Director (Acting), Office of Visa Services, U.S. Department of State).
\35\Id.
---------------------------------------------------------------------------
The House of Representatives included in the legislation to
implement the recommendations of the 9-11 Commission a
provision explicitly making revocation of a nonimmigrant visa a
grounds for removal. The only factor an immigration judge could
consider in a deportation proceeding was whether in fact DOS
had revoked the visa. In addition, the House provided that
there would be absolutely no means of judicial review of a visa
revocation or a deportation action based on the revocation.\36\
This Committee stated that ``[t]he section will prevent an
alien whose visa has been revoked [from being able] to
challenge the underlying revocation in court, where the
government might again be placed in a position of either
exposing its sources or permitting potentially dangerous alien
to remain in the U.S.''\37\
---------------------------------------------------------------------------
\36\See section 3009 of S. 2845 (engrossed amendment as agreed to
by House)(108th Congress, 2004).
\37\H.R. Rept. No. 108-724, part V, at 189 (2004).
---------------------------------------------------------------------------
However, in the conference committee, the Senate inserted a
modification providing that a removal based on visa revocation
was judicially reviewable if revocation was the sole basis for
the order of removal.\38\ The Senate language has made the use
of the visa revocation section problematic. Judicial review
could force the release to the alien and the public of the
sensitive information that the revocation ground of removal was
intended to protect. It could also undermine the consular non-
reviewability doctrine and open the door to judicial second-
guessing of all visa denial decisions.
---------------------------------------------------------------------------
\38\See section 5304 of Pub. L. No. 108-458.
---------------------------------------------------------------------------
What are the constitutional issues of visa revocation
without judicial review of an alien present in the U.S? The INA
could not be clearer: ``There shall be no means of judicial
review . . . of a revocation [of a visa or other documentation]
under this subsection, except in the context of a removal
proceeding if such revocation provides the sole ground for
removal under section 1227(a)(1)(B) of this title.''\39\
---------------------------------------------------------------------------
\39\Section 221(i) of the INA (emphasis added).
---------------------------------------------------------------------------
The question of whether the Constitution requires judicial
review turns on whether a visa issuance is discretionary in
nature. Several circuit courts have ruled that similar to visa
issuance, visa revocation is a ``discretionary'' decision.
These circuit courts, such as the Seventh,\40\ Third,\41\ and
Fifth,\42\ have concluded that since visa revocations are in
fact a discretionary power held by the Secretary of DHS, that
the Constitution does not require judicial review.
---------------------------------------------------------------------------
\40\El-Khader v. Monica, 366 F.3d 562, 568 (7th Cir. 2004).
\41\Jilin Pharm. USA, Inc. v. Chertoff, 447 F.3d 196, 206 (3d Cir.
2006).
\42\Ghanem v. Upchurch, 481 F.3d 222, 224-25 (5th Cir. 2007).
---------------------------------------------------------------------------
The circuit courts focused on 8 U.S.C. Sec. 1155, which
provides that ``[t]he Secretary of Homeland Security may, at
any time,'' revoke the approval of a visa petition ``for what
he deems to be good and sufficient cause.'' The regulation for
this section notes that DHS ``may revoke the approval of [a]
petition upon notice to the petitioner on any ground . . . when
the necessity for the revocation comes to [its] attention . .
.''\43\
---------------------------------------------------------------------------
\43\8 C.F.R. Sec. 205.2(a).
---------------------------------------------------------------------------
This revocation power is subject to 8 U.S.C.
Sec. 1252(a)(2)(B), which provides: ``Notwithstanding any other
provision of law (statutory or nonstatutory), . . . and
regardless of whether the judgment, decision, or action is made
in removal proceedings, no court shall have jurisdiction to
review . . . any other decision or action of the Attorney
General or the Secretary of Homeland Security the authority for
which is specified under this title [8 USCS Sec. Sec. 1151 et
seq.] to be in the discretion of the Attorney General or the
Secretary of Homeland Security. . . .'' This provision was
added to the INA by the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996,\44\ one purpose of which
was ``to improve deterrence of illegal immigration to the
United States . . . by reforming exclusion and deportation law
and procedures.''\45\
---------------------------------------------------------------------------
\44\Section 306 of division C of title III of Pub. L. No. 104-208.
\45\H.R. Rep. No. 104-828, at 1 (1996).
---------------------------------------------------------------------------
A district court in the Seventh Circuit held that visa
revocations were discretionary, stating ``[t]his language
plainly signifies a discretionary decision.''\46\ Furthermore,
the court found that ``the appellant has failed to present us
any case law from any Circuit, nor have we located any, that
has expressly ruled on whether a [visa revocation] is
discretionary. Nevertheless, in our opinion, the discretionary
nature of the decision is apparent from the plain language of
the statute. Initially, we cannot help but repeat the actual
words employed by the statute, which involve the permissive
`may' and a temporal reference to `at any time'. This language
plainly signifies a discretionary decision.''\47\ Ultimately,
the court held ``[t]he statute\48\ strips a court's
jurisdiction to review `any other decision or action . . .
where the Attorney General [now the Secretary] has
discretionary authority.'\49\ The meaning of the statute is
clear and unambiguous--it precludes the courts from reviewing
any discretionary decision of the INS.\50\ The alien in this
case was present in the U.S.''\51\
---------------------------------------------------------------------------
\46\El-Khader v. Perryman, 264 F. Supp. 2d 645, 647 (N.D. Ill.
2003).
\47\Id.
\48\8 U.S.C. Sec. 1252(a)(2)(B)(ii).
\49\El-Khader at 50 (citing CDI Information Services, Inc. v. Reno,
278 F.3d 616, 619 (6th Cir. 2002).
\50\Id.
\51\Id.
---------------------------------------------------------------------------
A key question under the Fifth Amendment's Due Process
Clause as to the constitutional necessity of judicial review is
whether there is any constitutionally protected property
interest in a visa. While the better argument is that a visa
issued by the government is not an inherent property right of
visa holders,\52\ the Supreme Court has not considered whether
a property interest exists in visa petitions, visa approvals
or, for that matter, what due process requirements would flow
from such an interest.
---------------------------------------------------------------------------
\52\DHS Brief in ANA Int'l, Inc. v. Way, 393 F.3d 886, 894 (9th
Cir. 2004). The Ninth Circuit ruled otherwise. ANA Int'l, Inc. v. Way,
393 F.3d at 894.

---------------------------------------------------------------------------

Hearings

The Committee on the Judiciary's Subcommittee on
Immigration Policy and Enforcement held a hearing on H.R. 1741,
the ``Secure Visas Act,'' on May 11, 2011. Testimony was
received from Gary Cote, Acting Deputy Assistant Director,
International Affairs of Immigration and Customs Enforcement at
the Department of Homeland Security; David Donahue, Deputy
Assistant Secretary for Visa Services, Bureau of Consular
Affairs, U.S. Department of State; Janice Kephart, Director of
National Security Policy, Center for Immigration Studies; and
Edward Alden, Bernard L. Schwartz Senior Fellow, Council on
Foreign Relations.

Committee Consideration

On June 23, 2011, the Committee met in open session and
ordered the bill H.R. 1741 favorably reported with amendments,
by a rollcall vote of 17 to 11, a quorum being present.

Committee Votes

In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee advises that the
following rollcall votes occurred during the Committee's
consideration of H.R. 1741.

1. The first rollcall vote was on amendment #4 offered by
Ms. Jackson Lee, which was defeated 11 to 17. The amendment
requires a GAO study regarding the cost effectiveness of VSUs
and provided that the bill would not go into effect until the
GAO study was complete.

ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman............................................. X
Mr. Sensenbrenner, Jr........................................... X
Mr. Coble....................................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Lungren.....................................................
Mr. Chabot...................................................... X
Mr. Issa........................................................ X
Mr. Pence.......................................................
Mr. Forbes......................................................
Mr. King........................................................ X
Mr. Franks...................................................... X
Mr. Gohmert.....................................................
Mr. Jordan...................................................... X
Mr. Poe......................................................... X
Mr. Chaffetz....................................................
Mr. Griffin..................................................... X
Mr. Marino...................................................... X
Mr. Gowdy....................................................... X
Mr. Ross........................................................ X
Ms. Adams....................................................... X
Mr. Quayle...................................................... X
Mr. Conyers, Jr., Ranking Member................................ X
Mr. Berman......................................................
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Cohen....................................................... X
Mr. Johnson..................................................... X
Mr. Pierluisi...................................................
Mr. Quigley..................................................... X
Ms. Chu.........................................................
Mr. Deutch...................................................... X
Ms. Sanchez.....................................................
Ms. Wasserman Schultz...........................................
-----------------------------------------------
Total....................................................... 11 17
----------------------------------------------------------------------------------------------------------------

2. The second rollcall vote was on amendment #3 offered by
Mr. Deutch and Ms. Waters, which was defeated 10 to 15. This
amendment sought to strike the provisions in the bill
restricting judicial review for individuals who are placed in
removal proceedings.

ROLLCALL NO. 2
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman............................................. X
Mr. Sensenbrenner, Jr........................................... X
Mr. Coble....................................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Lungren.....................................................
Mr. Chabot......................................................
Mr. Issa........................................................
Mr. Pence.......................................................
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Franks...................................................... X
Mr. Gohmert.....................................................
Mr. Jordan...................................................... X
Mr. Poe.........................................................
Mr. Chaffetz....................................................
Mr. Griffin..................................................... X
Mr. Marino...................................................... X
Mr. Gowdy....................................................... X
Mr. Ross........................................................ X
Ms. Adams....................................................... X
Mr. Quayle...................................................... X
Mr. Conyers, Jr., Ranking Member................................ X
Mr. Berman......................................................
Mr. Nadler......................................................
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Cohen....................................................... X
Mr. Johnson.....................................................
Mr. Pierluisi................................................... X
Mr. Quigley..................................................... X
Ms. Chu.........................................................
Mr. Deutch...................................................... X
Ms. Sanchez.....................................................
Ms. Wasserman Schultz...........................................
-----------------------------------------------
Total....................................................... 10 15
----------------------------------------------------------------------------------------------------------------

3. The final rollcall vote was on a motion to report the
bill favorably to the House (approved 17-11).

ROLLCALL NO. 3
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman............................................. X
Mr. Sensenbrenner, Jr........................................... X
Mr. Coble....................................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Lungren.....................................................
Mr. Chabot...................................................... X
Mr. Issa........................................................
Mr. Pence.......................................................
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Franks...................................................... X
Mr. Gohmert.....................................................
Mr. Jordan...................................................... X
Mr. Poe......................................................... X
Mr. Chaffetz....................................................
Mr. Griffin..................................................... X
Mr. Marino...................................................... X
Mr. Gowdy....................................................... X
Mr. Ross........................................................ X
Ms. Adams....................................................... X
Mr. Quayle...................................................... X
Mr. Conyers, Jr., Ranking Member................................ X
Mr. Berman......................................................
Mr. Nadler......................................................
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Cohen....................................................... X
Mr. Johnson.....................................................
Mr. Pierluisi................................................... X
Mr. Quigley..................................................... X
Ms. Chu......................................................... X
Mr. Deutch...................................................... X
Ms. Sanchez.....................................................
Ms. Wasserman Schultz...........................................
-----------------------------------------------
Total....................................................... 17 11
----------------------------------------------------------------------------------------------------------------

Committee Oversight Findings

In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee advises that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.

New Budget Authority and Tax Expenditures

Clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives is inapplicable because this legislation does
not provide new budgetary authority or increased tax
expenditures.

Congressional Budget Office Cost Estimate

In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to the bill, H.R. 1741, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974.

U.S. Congress,
Congressional Budget Office,
Washington, DC, September 13, 2011.
Hon. Lamar Smith, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed revised cost estimate for H.R. 1741, the
Secure Visas Act, which supersedes the estimate transmitted to
you on September 1, 2011.
This revised estimate explains that H.R. 1741 contains a
private-sector mandate as defined in the Unfunded Mandates
Reform Act. The estimated Federal cost to implement the
legislation is unchanged and remains the same as we reported in
the cost estimate transmitted on September 1, 2011.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Mark
Grabowicz, who can be reached at 226-2860.
Sincerely,
Douglas W. Elmendorf,
Director.

Enclosure

cc:
Honorable John Conyers, Jr.
Ranking Member

H.R. 1741--Secure Visas Act

As ordered reported by the House Committee on the Judiciary on
June 23, 2011

SUMMARY

H.R. 1741 would direct the Department of Homeland Security
(DHS) to review visa applications at all U.S. consular posts
that issue visas in 27 selected countries. The bill also would
shift some of the current authority for issuing visas from the
Department of State to DHS. CBO estimates that implementing
H.R. 1741 would cost $382 million over the 2012-2016 period,
assuming appropriation of the necessary amounts.
Pay-as-you-go procedures do not apply to this legislation
because it would not affect direct spending or revenues.
H.R. 1741 contains no intergovernmental mandates as defined
in the Unfunded Mandates Reform Act (UMRA) and would not affect
the budgets of State, local, or tribal governments.
H.R. 1741 would impose a private-sector mandate as defined
in UMRA by eliminating a right of action for foreign-born
individuals in the United States. CBO estimates that the cost
of complying with the mandate would fall below the annual
threshold established in UMRA for private-sector mandates ($142
million in 2011, adjusted annually for inflation).

ESTIMATED COST TO THE FEDERAL GOVERNMENT

The estimated budgetary impact of H.R. 1741 is shown in the
following table. The costs of this legislation fall within
budget function 750 (administration of justice).

By Fiscal Year, in Millions of Dollars
----------------------------------------------------------------------------------------------------------------
2012 2013 2014 2015 2016 2012-2016
----------------------------------------------------------------------------------------------------------------

CHANGES IN SPENDING SUBJECT TO APPROPRIATION

Costs for Additional DHS Personnel
Estimated Authorization Level 32 65 67 69 71 304
Estimated Outlays 29 62 67 69 71 298

Support Costs
Estimated Authorization Level 37 12 12 12 13 86
Estimated Outlays 33 14 12 12 13 84

Total Costs
Estimated Authorization Level 69 77 79 81 84 390
Estimated Outlays 62 76 79 81 84 382
----------------------------------------------------------------------------------------------------------------
Note: DHS = Department of Homeland Security.

BASIS OF ESTIMATE

For this estimate, CBO assumes that the bill will be
enacted near the end of fiscal year 2011. We assume that the
necessary amounts will be appropriated near the start of each
fiscal year and that spending will follow historical patterns
for similar activities.
Costs for Additional DHS Personnel
H.R. 1741 would direct DHS to review visa applications at
all U.S. consular posts that issue visas in 27 selected
countries, including Algeria, Canada, Egypt, Pakistan, Turkey,
and the United Kingdom. According to Immigration and Customs
Enforcement (ICE)--an agency within DHS--there are currently
ICE agents in 19 overseas posts in those countries who review
visa applications. ICE expects that implementing H.R. 1741
would require agents to be stationed in 40 additional posts in
the affected countries.
ICE anticipates that a total of 117 agents (about three for
each location) would need to be hired to staff the 40
additional posts. Based on the costs of similar overseas
personnel, CBO estimates that each agent, on average, would
cost about $550,000 annually, including salary and benefits,
enhanced pay for overseas law enforcement personnel, security
measures, housing and other expenses for accompanying family
members, and necessary support staff. Once fully phased in, CBO
estimates that the total costs of new employees would reach $65
million annually. For this estimate, we assume that the new
positions would be fully staffed by fiscal year 2013 and that
costs would be adjusted for anticipated inflation.
Support Costs
Based on information from ICE, CBO estimates that there
would be start-up costs in 2012 of about $900,000 per post, on
average, mostly to purchase and implement security measures and
to install computer systems. Beginning in 2013, we estimate
that there would be recurring support costs of about $300,000
annually per office, on average, including information
technology expenses and payments for staff and assistance
provided by the host country. CBO estimates that total support
costs would be $37 million in 2012 and $12 million annually
thereafter.

PAY-AS-YOU-GO CONSIDERATIONS:

None.

ESTIMATED IMPACT ON STATE, LOCAL, AND TRIBAL GOVERNMENTS

H.R. 1741 contains no intergovernmental mandates as defined
in UMRA and would not affect the budgets of State, local, or
tribal governments.

ESTIMATED IMPACT ON THE PRIVATE SECTOR

H.R. 1741 would impose a private-sector mandate as defined
in UMRA by prohibiting foreign-born individuals in the United
States from seeking judicial review if their visa is revoked.
The prohibition would impose a mandate by eliminating a right
of action for individuals in the private sector. According to
the Department of Homeland Security and the Department of
State, few, if any, foreign-born individuals seek judicial
review or other claims involving revocation of their visas
under current law. Therefore, CBO estimates that the cost of
complying with the mandate would fall below the annual
threshold established in UMRA for private-sector mandates ($142
million in 2011, adjusted annually for inflation).

PREVIOUS CBO ESTIMATE

This revised cost estimate supersedes an estimate for H.R.
1741 that was transmitted on September 1, 2011. The previous
estimate incorrectly reported that the legislation contains no
private-sector mandates as defined in UMRA. The revised
estimate corrects that error. The estimated Federal cost of
implementing the legislation is unchanged from the previous
estimate.

ESTIMATE PREPARED BY:

Federal Costs: Mark Grabowicz
Impact on State, Local, and Tribal Governments: Melissa Merrell
Impact on the Private Sector: Paige Piper/Bach

ESTIMATE APPROVED BY:

Theresa Gullo
Deputy Assistant Director for Budget Analysis

Performance Goals and Objectives

The Committee states that pursuant to clause 3(c)(4) of
rule XIII of the Rules of the House of Representatives, H.R.
1741, the ``Secure Visas Act'', helps ensure security of the
visa issuance process. Through the establishment of VSUs at all
high risk consular posts and ensures that there shall be no
judicial review of any visa revocation decision in order to
safeguard national security.

Advisory on Earmarks

In accordance with clause 9 of rule XXI of the Rules of the
House of Representatives, H.R. 1741 does not contain any
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(e), 9(f), or 9(g) of Rule XXI.

Section-by-Section Analysis

Sec. 1. Short title. Section 1 sets forth the short title
of the bill as the ``Secure Visas Act''.
Sec. 2(a): Authority of Secretary of State and Secretary of
Homeland Security. This subsection clarifies that the Secretary
of DHS has the explicit power to grant, refuse or revoke an
alien's visa if the Secretary ``determines that such refusal or
revocation is necessary or advisable in the security interests
of the United States.''
Subsection (a) provides that such a revocation take effect
immediately and shall automatically cancel any other valid
visas held by the alien.
Subsection (a) prohibits all judicial review of the DHS
Secretary's refusal or revocation of a visa.
Subsection (a) also states that the Secretary of State may
not override the visa refusal or revocation decision by the
Secretary of DHS. The State Department maintains it independent
ability to refuse or revoke a visa.
Sec. 2(b): Issuance of Visas at Designated posts and U.S.
Embassies. This subsection requires that DHS create and/or
maintain VSUs at the nineteen consular posts that already have
VSUs as well at the five additional posts that DHS has
requested.
Subsection (b) retains authority of DHS's Secretary to
place VSUs at additional consular posts which the Secretary
shall do unless it is determined that such an assignment would
not promote national or homeland security.
Subsection (b) also requires placement, staffing, and
operation of VSUs as provided in this subsection, no later than
1 year after the date of enactment.
Sec. 2(c) Visa Revocation. This subsection requires that
when a visa is revoked by the Secretary of DHS or DOS that all
appropriate consular, law enforcement and terrorist screening
databases be immediately updated as to the revocation and also
that DOS lookout notices be posted to all DHS port inspectors
and DOS consular officers.
Subsection (c) precludes judicial review (including section
2241 of title 28) of all visa revocation decisions made by the
government, including revocations providing the sole ground for
removal of aliens present in the U.S.

Changes in Existing Law Made by the Bill, as Reported

In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italics, existing law in which no change
is proposed is shown in roman):

HOMELAND SECURITY ACT OF 2002

* * * * * * *
TITLE IV--DIRECTORATE OF BORDER AND TRANSPORTATION SECURITY

* * * * * * *

Subtitle C--Miscellaneous Provisions

* * * * * * *

SEC. 428. VISA ISSUANCE.

(a) * * *
[(b) In General.--Notwithstanding section 104(a) of the
Immigration and Nationality Act (8 U.S.C. 1104(a)) or any other
provision of law, and except as provided in subsection (c) of
this section, the Secretary--
[(1) shall be vested exclusively with all authorities
to issue regulations with respect to, administer, and
enforce the provisions of such Act, and of all other
immigration and nationality laws, relating to the
functions of consular officers of the United States in
connection with the granting or refusal of visas, and
shall have the authority to refuse visas in accordance
with law and to develop programs of homeland security
training for consular officers (in addition to consular
training provided by the Secretary of State), which
authorities shall be exercised through the Secretary of
State, except that the Secretary shall not have
authority to alter or reverse the decision of a
consular officer to refuse a visa to an alien; and
[(2) shall have authority to confer or impose upon
any officer or employee of the United States, with the
consent of the head of the executive agency under whose
jurisdiction such officer or employee is serving, any
of the functions specified in paragraph (1).
[(c) Authority of the Secretary of State.--
[(1) In general.--Notwithstanding subsection (b), the
Secretary of State may direct a consular officer to
refuse a visa to an alien if the Secretary of State
deems such refusal necessary or advisable in the
foreign policy or security interests of the United
States.
[(2) Construction regarding authority.--Nothing in
this section, consistent with the Secretary of Homeland
Security's authority to refuse visas in accordance with
law, shall be construed as affecting the authorities of
the Secretary of State under the following provisions
of law:
[(A) Section 101(a)(15)(A) of the Immigration
and Nationality Act (8 U.S.C. 1101(a)(15)(A)).
[(B) Section 204(d)(2) of the Immigration and
Nationality Act (8 U.S.C. 1154) (as it will
take effect upon the entry into force of the
Convention on Protection of Children and
Cooperation in Respect to Inter-Country
adoption).
[(C) Section 212(a)(3)(B)(i)(IV)(bb) of the
Immigration and Nationality Act (8 U.S.C.
1182(a)(3)(B)(i)(IV)(bb)).
[(D) Section 212(a)(3)(B)(i)(VI) of the
Immigration and Nationality Act (8 U.S.C.
1182(a)(3)(B)(i)(VI)).
[(E) Section 212(a)(3)(B)(vi)(II) of the
Immigration and Nationality Act (8 U.S.C.
1182(a)(3)(B)(vi)(II)).
[(F) Section 212(a)(3)(C) of the Immigration
and Nationality Act (8 U.S.C. 1182(a)(3)(C)).
[(G) Section 212(a)(10)(C) of the Immigration
and Nationality Act (8 U.S.C. 1182(a)(10)(C)).
[(H) Section 212(f) of the Immigration and
Nationality Act (8 U.S.C. 1182(f)).
[(I) Section 219(a) of the Immigration and
Nationality Act (8 U.S.C. 1189(a)).
[(J) Section 237(a)(4)(C) of the Immigration
and Nationality Act (8 U.S.C. 1227(a)(4)(C)).
[(K) Section 401 of the Cuban Liberty and
Democratic Solidarity (LIBERTAD) Act of 1996
(22 U.S.C. 6034; Public Law 104-114).
[(L) Section 613 of the Departments of
Commerce, Justice, and State, the Judiciary and
Related Agencies Appropriations Act, 1999 (as
contained in section 101(b) of division A of
Public Law 105-277) (Omnibus Consolidated and
Emergency Supplemental Appropriations Act,
1999); 112 Stat. 2681; H.R. 4328 (originally
H.R. 4276) as amended by section 617 of Public
Law 106-553.
[(M) Section 103(f) of the Chemical Weapon
Convention Implementation Act of 1998 (112
Stat. 2681-865).
[(N) Section 801 of H.R. 3427, the Admiral
James W. Nance and Meg Donovan Foreign
Relations Authorization Act, Fiscal Years 2000
and 2001, as enacted by reference in Public Law
106-113.
[(O) Section 568 of the Foreign Operations,
Export Financing, and Related Programs
Appropriations Act, 2002 (Public Law 107-115).
[(P) Section 51 of the State Department Basic
Authorities Act of 1956 (22 U.S.C. 2723).]
(b) Authority of the Secretary of Homeland Security.--
(1) In general.--Notwithstanding section 104(a) of
the Immigration and Nationality Act (8 U.S.C. 1104(a))
or any other provision of law, and except for the
authority of the Secretary of State under subparagraphs
(A) and (G) of section 101(a)(15) of the Immigration
and Nationality Act (8 U.S.C. 1101(a)(15)), the
Secretary--
(A) shall have exclusive authority to issue
regulations, establish policy, and administer
and enforce the provisions of the Immigration
and Nationality Act (8 U.S.C. 1101 et seq.) and
all other immigration or nationality laws
relating to the functions of consular officers
of the United States in connection with the
granting and refusal of a visa; and
(B) may refuse or revoke any visa to any
alien or class of aliens if the Secretary, or
designee, determines that such refusal or
revocation is necessary or advisable in the
security interests of the United States.
(2) Effect of revocation.--The revocation of any visa
under paragraph (1)(B)--
(A) shall take effect immediately; and
(B) shall automatically cancel any other
valid visa that is in the alien's possession.
(3) Judicial review.--Notwithstanding any other
provision of law, including section 2241 of title 28,
United States Code, or any other habeas corpus
provision, and sections 1361 and 1651 of such title, no
court shall have jurisdiction to review a decision by
the Secretary of Homeland Security to refuse or revoke
a visa, and no court shall have jurisdiction to hear
any claim arising from, or any challenge to, such a
revocation.
(c) Authority of the Secretary of State.--
(1) In general.--The Secretary of State may direct a
consular officer to refuse a visa requested by, or
revoke a visa issued to, an alien if the Secretary of
State determines such refusal or revocation to be
necessary or advisable in the interests of the United
States.
(2) Limitation.--No decision by the Secretary of
State to approve a visa may override a decision by the
Secretary of Homeland Security under subsection (b).

* * * * * * *

[(i) Visa Issuance Program for Saudi Arabia.--Notwithstanding
any other provision of law, after the date of the enactment of
this Act all third party screening programs in Saudi Arabia
shall be terminated. On-site personnel of the Department of
Homeland Security shall review all visa applications prior to
adjudication.]
(i) Visa Issuance at Designated Consular Posts and
Embassies.--Notwithstanding any other provision of law, except
section 207 of the Foreign Service Act of 1980 (22 U.S.C. 3927)
and the process established by the President for determining
appropriate staffing at diplomatic missions and overseas
constituent posts, the Secretary of Homeland Security--
(1) shall conduct an on-site review of all visa
applications and supporting documentation before
adjudication at all visa-issuing posts in Algeria;
Canada; Colombia; Egypt; Germany; Hong Kong; India;
Indonesia; Iraq; Jerusalem, Israel; Jordan; Kuala
Lumpur, Malaysia; Kuwait; Lebanon; Mexico; Morocco;
Nigeria; Pakistan; the Philippines; Saudi Arabia; South
Africa; Syria; Tel Aviv, Israel; Turkey; United Arab
Emirates; the United Kingdom; Venezuela; and Yemen; and
(2) is authorized to assign employees of the
Department to each diplomatic and consular post at
which visas are issued unless, in the Secretary's sole
and unreviewable discretion, the Secretary determines
that such an assignment at a particular post would not
promote national or homeland security.
(j) Visa Revocation Information.--If the Secretary of
Homeland Security or the Secretary of State revokes a visa--
(1) the relevant consular, law enforcement, and
terrorist screening databases shall be immediately
updated on the date of the revocation; and
(2) look-out notices shall be posted to all
Department of Homeland Security port inspectors and
Department of State consular officers.

* * * * * * *

----------

IMMIGRATION AND NATIONALITY ACT

* * * * * * *
TITLE II--IMMIGRATION

* * * * * * *

Chapter 3--Issuance of Entry Documents

ISSUANCE OF VISAS

Sec. 221. (a) * * *

* * * * * * *

(i) After the issuance of a visa or other documentation to
any alien, the consular officer or the Secretary of State may
at any time, in his discretion, revoke such visa or other
documentation. Notice of such revocation shall be communicated
to the Attorney General, and such revocation shall invalidate
the visa or other documentation from the date of issuance:
Provided, That carriers or transportation companies, and
masters, commanding officers, agents, owners, charterers, or
consignees, shall not be penalized under section 273(b) for
action taken in reliance on such visas or other documentation,
unless they received due notice of such revocation prior to the
alien's embarkation. [There shall be no means of judicial
review (including review pursuant to section 2241 of title 28,
United States Code, or any other habeas corpus provision, and
sections 1361 and 1651 of such title) of a revocation under
this subsection, except in the context of a removal proceeding
if such revocation provides the sole ground for removal under
section 237(a)(1)(B).] A revocation under this subsection shall
take effect immediately and shall automatically cancel any
other valid visa that is in the alien's possession.
Notwithstanding any other provision of law, including section
2241 of title 28, United States Code, or any other habeas
corpus provision, and sections 1361 and 1651 of such title, a
revocation under this subsection may not be reviewed by any
court, and no court shall have jurisdiction to hear any claim
arising from, or any challenge to, such a revocation.

* * * * * * *

Committee Jurisdiction Letters

__________

Additional Views

The purpose of these views is to memorialize Member
negotiations that took place after the Committee's mark-up of
H.R. 1741, the ``Secure Visas Act.'' Following the mark-up,
Members worked together on revisions to the reported bill to
address concerns raised by minority Members of the Committee
regarding judicial review, as well as concerns raised by the
State Department regarding restrictions inadvertently placed on
the authority of the Secretary of State to refuse or revoke
visas. We have since agreed on alternative language that would
revise the bill as reported in several respects. We have agreed
that these revisions will be incorporated into any version of
the Secure Visas Act that is considered on the House floor this
Congress.
First, the reported version of the bill requires that the
revocation of a visa take effect immediately and cancel any
other valid visa. There is no requirement that the alien
receive notice of the visa revocation or that the alien be
given an opportunity to depart the country without prejudice
upon receiving notice of the revocation. We have agreed to
revise this language to permit visa revocations to take effect
immediately and cancel any other valid visa in the alien's
possession, but it would not require this in every instance.
The revised language would also require notice to the alien
and, where the revocation was made by the Secretary of State or
a consular officer, also to the Secretary of Homeland Security.
Upon receiving such notice, the alien would have 21 days to
depart the country voluntarily without prejudice. If the alien
does not depart within this 21-day period, DHS would be
authorized to initiate removal proceedings in its sole
discretion.
Second, the reported version of the bill eliminates
judicial review for all visa revocations. The language that we
have agreed to would preserve the right to such judicial review
but add special provisions for cases that raise national
security concerns. Specifically, it would leave unchanged the
ability to obtain judicial review for any case in which a
revocation provides the sole ground for removal and removal
through ordinary proceedings would pose no risk to national
security. Where such risk exists, however, the Secretary would
be authorized to utilize the Alien Terrorist Removal Procedures
established in Title V of the Immigration and Nationality Act.
Title V describes the process for establishing an Alien
Terrorist Removal Court and provides procedures for handling
the introduction of classified information under seal. Title V
also guarantees the alien certain rights in proceedings,
including the right to a public hearing, the right to counsel,
and the right to judicial review.
Finally, the reported version of the bill limits the
Secretary of State's visa refusal and revocation authority.
Current law allows the Secretary of State to refuse a visa
where it is ``necessary or advisable in the foreign policy or
security interests of the United States,''\1\ and may revoke a
visa in her discretion.\2\ The reported version of the bill
amends this provision to allow the Secretary of State to refuse
and revoke visas only for foreign policy-related grounds. The
language that we have agreed to would preserve the Secretary of
State's existing authority to refuse or revoke visas on both
foreign policy- and security-related grounds.
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\1\Homeland Security Act of 2002, Pub. L. No. 107-296, Sec. 428,
116 Stat. 2135, 2188 (2002).
\2\Immigration and Nationality Act Sec. 221(I), 8 U.S.C.
Sec. 1201(i).
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We have agreed that the above changes will be incorporated
into any version of the Secure Visas Act that is brought to the
House floor.

Lamar Smith.
John Conyers, Jr.
Zoe Lofgren.