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Testimony of
M ICHAEL J. MAXWELL
on
Whether Attempted Implementation
of the Senate Immigration Bill Will
Result in an Administrative and
National Security Nightmare
before
The Subcommittee on Immigration
Border Security, and claims

Committee on the Judiciary
U.S. House of Representatives
Thursday, July 27, 2006 
National Security Nightmare
Mr. Chairman and Members of the Subcommittee,
I am pleased to be here today to discuss the impact that implementation of S. 2611 by
US Citizenship and Immigration Services (USCIS) would have on national security. As the
former Director of the Office of Security and Investigations (OSI), the only law enforcement
component within USCIS, I must point out that the basic premise of this hearing—that
implementation of S. 2611 could create an administrative and national security nightmareis
faulty. The fact is that an administrative and national security nightmare already  exists at
USCIS under our current immigration policy. Implementation of the Senate bill would codify
the nightmare and ensure that the criminals, terrorists, and foreign intelligence operatives who
have already gamed our immigration system are issued legal immigration documents and
allowed to stay permanently.
Asking USCIS to implement a proposal as sweeping as S. 2611 without first addressing
the existing national security vulnerabilities in our immigration system would be
irresponsible, at best, and could actually facilitate ongoing criminal enterprises. I also agree
with Director Gonzalez who, on at least three occasions, has stated that it would be impossible
for USCIS to implement the Senate bill within the prescribed time frame. The agency has
neither the personnel nor the infrastructure to process an additional 10 to 20 million
applications. I would go one step further and suggest that USCIS could never implement S.
2611 without fully compromising national security. The entire underlying immigration system
is simply too flawed.
Doctor Gonzalez was warned by me, and by others, both prior to his confirmation as
Director and immediately following, that USCIS is a vipers nest of career federal employees
willing to cover up faults in the system to advance their careers, to obstruct ranking political
appointeesincluding the previous Directorat the cost of national security, and to institute
policies, programs, and systems independent of Headquarters and Administration direction
for their own gain. Since I last briefed this subcommittee in September of 2005, nothing has
changed. In fact, recent news from USCIS only verifies the fact that we are seeing the
beginning of the convergence I predicted at that briefing: the perfect immigration storm.
Building  on  a  Faulty  Foundation 
Our current immigration system is broken. On this statement there is virtually universal
agreement, even among administration officials:
During his October 18, 2005 testimony before the Senate Judiciary Committee, DHS
Secretary Michael Chertoff stated, “we recognize that the current [immigration]
situation is in desperate need of repair.” He went on to acknowledge, “Parts of the
system have nearly collapsed under the weight of numbers.”
Testimony of Michael J. Maxwell, July 27, 2006
1
National Security Nightmare
At an April 5, 2006, press conference to announce the creation of task forces to combat
immigration and document fraud, Assistant Secretary for Immigration and Customs
Enforcement (ICE) Julie Myers pointed out that terrorists have used legal immigration
channels like asylum to embed in American society. She noted that “each year tens of
thousands of applications for immigration benefits are denied because of fraud, and
those are just the ones we find.
On April 13, 2006, Janice Sposato, head of the newly created National Security and
Records Verification Directorate at USCIS, was quoted in a UPI article as saying that
USCIS adjudicators sometimes find themselves in a "difficult and ambiguous legal
situation" when trying to weed out those who might pose a terrorist threat. "I'm not
going to tell you I have all the tools I need” to deny citizenship and other immigration
benefits to potential terrorists, she acknowledged.
On June 11, 2006, ICE posted the following on its website:
“ICE also participates in the interagency Identity  &  Benefits  Fraud  Task  Force ,
which seeks to restore integrity to the immigration process and prevent terrorists
and criminals from entering the United States. . . . Operation  Integrity is a new
Identity  &  Benefits  Fraud  Unit initiative to restore integrity to the immigration
system and to address vulnerabilities in the system that terrorist or criminal
organizations could exploit to gain entry to the country. Operation Integrity will
support a nationwide system of “IBF Task Forces” to detect, deter, and disrupt
criminal and terrorist organizations that attempt to exploit the immigration system”
On June 20, Karl Rove told the National Federation of Independent Business
“immigration is turning into a big problem. The more you look at it, the more clear it is
that every single part of the system is broken.”
Here are just a few examples to support Mr. Rove’s critical assessment:
The DHS Inspector General recently reported that, from 2001 through the first half of
2005, 45,000 high risk aliens from state sponsors of terrorism and special interest
countries have been released into American communities because of the inability of
DHS to conduct a thorough background check on aliens. 1
>
An internal USCIS document reveals a backlog, as of late September 2005, of more than
41,000 immigration applications with IBIS hits requiring further investigation. 2
>
Senior-level USCIS staff have information indicating that suspected terrorists have
established bogus educational institutions in multiple U.S. communities and used the
student visa program to move recruits into the United States.
1 Attachment 1: Detention  and  Removal  of  Illegal  Aliens , OIG-06-03, Office of the Inspector General, Department of
Homeland Security, April 2006, p. 10.
2 Attachment 2: “Draft10/4/05 Initial Statement,” p. 2.
Testimony of Michael J. Maxwell, July 27, 2006
2
 
 
National Security Nightmare
>
Recent USCIS immigration fraud assessments indicate that the incidence of fraud in
some visa categories is as high as 33 percent. 3
>
Since 2004, at least 17 reports by the GAO and DHS OIG have revealed critical flaws in
the way USCIS implements the immigration process. Annual reports by the Citizenship
and Immigration Services Ombudsman identify additional problems.
Virtually every part of our immigration system is broken and needs to be reengineered.
But there are three overarching issues that, in my professional view, must be addressed before
any policy reforms can be effective. They are:
1.
Rampant internal corruption;
2.
A customer-service mentality that, despite vocal public denials by appointed official,
invariably trumps national security concerns; and
3.
A failure or refusal to share critical national security information even among the
different component-agencies of the Department of Homeland Security (DHS), let
alone with outside law enforcement or intelligence agencies.
Any one of these, individually, presents an opportunity for criminals, terrorists and
foreign intelligence services to do this nation grave harm. Combined, these three issues
present policy makers, law enforcement, the intelligence community and the American people,
with the unenviable challenge we face today: managing the consequences of a failed
immigration system. To continue forward, to build upon the existing foundation, is akin to
building a house on a cracked foundationit is only a matter of time before the foundation
shifts and the house falls.
Rampant  Internal  Corruption 
As the agency that hands out green cards, work permits, and citizenship, among other
immigration benefits, the temptations for employees of USCIS to commit crime are constant.
USCIS employees work in an atmosphere that permitsand often encouragesthe waiving of
rules. It is only a small step from granting a discretionary waiver of an eligibility rule to
asking for a favor or a taking a bribe in exchange for granting that waiver. Once an employee
learns he can get away with low-level corruption and still advance up the ranks, he or she
becomes more brazen. The culture of corruption that permeated the old INS transferred intact
to USCIS. This environment presents an easy target of opportunity for criminals, terrorists,
and foreign intelligence operatives to ply their trade.
When I first briefed this Subcommittee on September 29, 2005, the Office of Security and
Investigations had a backlog of 2,771 complaints against USCIS employees. The complaints
alleged everything from overdue benefits and misuse of government property to bribery,
undue influence of foreign governments, and espionage. Of the total backlog, 528 alleged
3   Immigration  Benefits:   Additional  Controls  and  a  Sanctions  Strategy  Could  Enhance  DHS’s  Ability  to  Control  Benefits 
Fraud , Government Accountability Office, March 2006, p. 16.
Testimony of Michael J. Maxwell, July 27, 2006
3
 
National Security Nightmare
criminal violations. Included among these were national security cases, such as allegations
that USCIS employees had provided material support to known terrorists or that they were
being influenced by foreign intelligence services. Complaints with clear national security
implications represented a small share of the total, but with these cases, even one is too many.
Allegedly corrupt employees ranged from mail clerks to top-level managers at
headquarters and senior personnel in the field and overseas. Despite the fact that I had set
aside money from OSI’s budget to purchase a case management system to track these
complaints, I was told that I could not purchase one, so we had no way to track our caseload
or conduct link analyses. We had no way to investigate more than a small handful of criminal
allegations since I was only permitted to hire six criminal investigators, despite the fact that I
had been authorized in writing to hire 30. Since two of the six were assistant directors at OSI
headquarters, I had a grand total of four investigators in the field.
Today, almost a year later, the backlog of misconduct complaints against USCIS
employees is well over 3,000. This number does not include some 500 complaints that
disappeared after Chief of Staff Paar and Deputy Director Divine took possession of all the
complaints last winter and failed to return the same number they took.
Importantly this number also no longer includes service complaints (i.e., overdue
immigration benefits), which are now separated and forwarded to the appropriate offices as
they arrive. The total number of complaints, as well as the number that allege criminal
violations, are unknown since OSI still has no case management system. New complaints are
still coming in at a rate of around 50 per week, as was true when I was director. OSI still has a
grand total of four criminal investigators in the field to handle all complaints. The two career
special agents I had assigned to investigate espionage and terrorism-related allegations
resigned in disgust, with one citing his desire to leave DHS to go “fight the war on terrorism.”
While there are still multiple ongoing national security investigations and
investigations against high-ranking USCIS personnel, there have been three high-profile
arrests of USCIS employees in the past several months, along with one conviction.
>
March 21, 2006 Eddie Romualdo Miranda, a USCIS adjudicator in Santa Ana,
California, was arrested by local police on charges of attempted oral copulation and
sexual battery under color of law for demanding sexual favors from a naturalization
applicant in exchange for approving her application;
>
March 22, 2006Lisa Ann Gross, a contract employee of USCIS, was convicted of
providing confidential law enforcement information to the target of a drug
investigation after she gained unauthorized access to The Enforcement
Communications System (TECS). This case represents the first criminal conviction in a
case opened and investigated by OSI;
>
June 7, 2006Phillip A. Browne, a USCIS adjudicator in New York City, was arrested
with his sister and 28 others and charged with arranging sham marriages, producing
Testimony of Michael J. Maxwell, July 27, 2006
4
National Security Nightmare
fake documents, selling one million dollars worth of green cards, and laundering the
proceeds over a period of more than four years. The FBI, ICE, and the DHS Office of
the Inspector General (OIG) conducted the investigation and made the arrests.
>
June 29, 2006the FBI, arrested Robert T. Schofield, a former Deputy District Director
in the Washington field office of USCIS, after a joint investigation with the OIG, for
falsifying naturalization certificates for Asian immigrants. Allegations against Schofield
for misconduct, including accepting bribes, unauthorized use of government credit
cards, and falsifying immigration documents, date back at least 10 years. Arrested with
Mr. Schofield was a Chinese national, Qiming Ye, referred to by authorities as an
“immigration broker” for Chinese seeking immigration status in the United States.
I applaud the efforts of the local law enforcement officers and federal agents involved in
the investigations listed above. Realistically, however, these cases represent the tip of the
iceberg and numerous arrests should be forthcoming. At the time of my resignation as
Director of OSI, the backlog of complaints included nearly 100 bribery allegations. Those
allegationswhich in March were intentionally under-reported by more than half to the DHS
OIG by USCIS senior managementremain untouched, as do allegations of extortion,
harboring illegal aliens, and structuring. Substantiated instances of foreign government
influence and potential national security breeches by employees also have yet to be addressed,
despite repeated warnings.
Yet USCIS still refuses to aggressively support the new Director of OSI and his staff
with either a reasonable budget or a rational policy. As long as OSI remains woefully under
funded, understaffed, and prohibited by management from carrying out its mission, rampant
corruption will continue.
I warned both Chief of Staff Paar and then-Acting Deputy Director Divine on
September 5, September 29, and 0ctober 5, 2005, that the lack of an Internal Audit Department
at USCIS, capable of rooting out anomalies in the work product of supervisory immigration
officers, presents a compelling national security threat. These warnings fell on deaf ears. In
fact, I was ordered by both not to have direct contact or participate with the Joint Terrorism
Task Force or the Intelligence Community.
USCIS staff at Headquarters continues to insist that sufficient safeguards are built into
the system to prevent immigration officers from granting benefits to the wrong people for the
wrong reasons. The recent arrests, along with the case of the Iraqi Asylum Officer that
appeared in the Washington Times in April, belie their claims. 4 Consider the extent to which
one immigration officer could compromise national security over the course of a thirty year
career by granting immigration benefits at the behest of enemies of the state. When the nexus
between foreign intelligence services and state sponsors of terrorism, such as Iran, is factored
in with the lack of internal checks and balances at USCIS, and the temptations employees face,
4 Attachment 3: Dinan, Stephen, “Iraq spy suspect oversaw U.S. asylum,” Washington Times, April 6, 2007.
Testimony of Michael J. Maxwell, July 27, 2006
5
 
National Security Nightmare
the result is a recipe for disastera disaster not in the making, but already upon us. At the
time of my resignation, OSI had initiated more than ten national security preliminary inquires
involving employees. Instead of monitoring the email of suspected corrupt employees,
however, USCIS senior management is monitoring the email of potential whistleblowers and
my own.
Only when employees face a serious risk of detection and prosecution will they begin to
think twice about violating the law. In the meantime, the Senate bill represents new
opportunities for corrupt employees and our adversaries. It would create a huge new pool of
aliens willing to pay bribes or perform sexual favors in exchange for immigration benefits.
Moreover, we know that both foreign intelligence service personnel and terrorists closely
study our immigration system, the agencies that administer that system, and its personnel.
Once the agency was thoroughly overwhelmed by its additional workload under S. 2611, the
chance of detecting foreign intelligence service personnel or their proxies would be completely
lost.
Overriding  Customer Service  Mentality 
USCIS is suffering from an identity crisis brought on by years of mismanagement and
unwittingly encouraged by Congress. The central mission of USCIS is to execute the
immigration laws enacted by Congress and to ensure that only those aliens who are eligible
and who do not pose a risk to the United States or its residents are able to obtain permission to
remain here. However, the agency sees itself as a “relocation facilitator” whose business is to
serve aliensthe “customers”wishing to reside here. The fact that the “customer” may be a
violent criminal intending to victimize innocent Americans or a terrorist or spy intent on the
destruction of the country is viewed as an acceptable risk. Historically, USCIS field offices
have operated as fiefdoms and viewed headquarters as a necessary evil, worthy of lip service,
but incapable of getting the job done. When policies were slow coming from inside the
beltway, politically powerful Regional or District Directors would often implement their own
policies and develop their own programs.
Despite vehement claims to the contrary by political appointees, USCIS is operating an
immigration system designed not to aggressively deter or detect fraud, but first and foremost
to approve applications. The desire to eliminate the backlog of benefit applications is so
strong, for example, that USCIS management has redefined it at least three times in order to
knock millions of pending applications off the list, including more than 235,000 that are
awaiting an FBI name check.
USCIS senior leadership is much more concerned with reducing the backlog than with
the integrity of the process. At one point, OSI opened a preliminary inquiry into allegations
that over one million biometric files had disappeared from USCIS. Not long after we began
investigating, we were assured that the biometrics had been found, though no one could quite
explain what had happened. In another instance, allegations received by my office suggested
that, since benefit applications are not counted toward the backlog until they are data entered,
Testimony of Michael J. Maxwell, July 27, 2006
6
National Security Nightmare
boxes of A-files were being stacked and never entered into the computer systems so USCIS
could report to Congress a reduction in the backlog.
The absolute lack of a national security perspective on the part of senior managers is
clear in their responses to the following agency-wide issues that unmistakably jeopardize
national security.
Auto‐ Adjudication  System 
A USCIS regulation (8 C.F.R. 274a.13) states that, if an application for adjustment to
lawful permanent resident (LPR) status is not decided within 90 days, the applicant is entitled
to an employment authorization document (EAD). As of May 2006, only five USCIS district
offices were able to process all LPR applications within 90 days. Since none of the other
district offices and none of the five service centers can meet this goal, virtually all applicants
whether they are eligible or not and whether they are lawfully present in the United States or
notare able to obtain a legitimate EAD.
According to the GAO and the Citizenship and Immigration Services Ombudsman, this
regulation has led to widespread fraud. Illegal aliens can simply file a fraudulent application
for adjustment to LPR status, wait 90 days, and then receive an EAD. Once they have the
EAD, they can apply for a legitimate social security number and, even under the REAL ID Act,
they can legally obtain a driver’s license because they have an application for LPR status
pending. With a social security number and a driver’s license, they can get a job or a firearms
license, board an aircraft, etc. The Citizenship and Immigration Services Ombudsman
estimates that 325,569 EADs were issued to ineligible aliens between May 2004 and February
2006. 5
Following my resignation, a tip I received from a USCIS/Fraud Detection and National
Security (FDNS) Officer led to the discovery of an “auto-adjudication” system in use at the
Texas Service Center. Additional whistleblowers stepped forward shortly thereafter and
notified me that similar systems may be operating in other service centers. In order to address
the demand for EADs as interim benefits, it appears that the Texas Service Center had
developed a system that could process applications for EADs from start to finish without any
human involvement at all. In other words, there is no point in the process when a USCIS
employee actually examined the supporting documentation to look for signs of fraud. Instead,
the EAD was approved automatically when the underlying application for LPR status had
been pending for 90 days.
Further investigation led to additional whistleblower communications indicating that
senior management had failed to inform the Chief Information Officer of the development of
these systems and that they are not secure systems. In fact, they are completely unprotected
against cyber intrusion, sabotage, and manipulation, like much of the IT system at USCIS.
5 Annual  Report  to  Congress , Citizenship and Immigration Services Ombudsman, Department of Homeland
Security, June 2006, p. 20.
Testimony of Michael J. Maxwell, July 27, 2006
7
 
National Security Nightmare
[Earlier this year, late on the day of a planned cyber-attack test of the USCIS IT system, the ICE
Computer Security Incident Response Center, which was charged with detecting the intrusion,
called USCIS IT Security personnel to ask if the test had been called off. Instead, they were
informed that the attack had been launched as planned and the intrusion had been occurring
undetected for the past eight hours.]
This auto-adjudication system only processes EADs that are linked to an application for
adjustment to lawful permanent residence, which means that the initial, automated IBIS name
check of the applicant is conducted when the underlying application is data entered.
However, this initial IBIS name check searches only on the name of the applicant as clerical
staff entered it into the computer system. It does not look for spelling variations or for aliases,
and so is by no means a conclusive security check. By the time this system approves an EAD,
it is likely that no one has actually looked at the application since the clerical staff received it
from the applicant and verified only that it contained the proper fee and a signature. It seems
apparent that the designers of this system gave no thought to fraud or national security, but
instead were focused on convenience.
Remote  Adjudication  System 
Another adjudication system identified during the same review that uncovered the
auto-adjudication system is even more troubling. Staff at the National Benefits Center in Lee’s
Summit, Missouri, acknowledged that there is a program embedded in CLAIMS3, the
backbone of the ICE/USCIS IT system, without the knowledge or approval of the USCIS or
DHS Chief Information Officers. This rogue system, as it was referred to by IT Security
personnel, allows a remote user to bypass the normal data-entry process and manually insert
any number of immigration files (what appear to be fully adjudicated applications for EADs
and replacement green cards) into the computer system so that all standard application
screening processes, including the “Lock Box function,” which accounts for the receipt of
immigration processing fees, and ALL background checks, including the initial, automated
IBIS check, are circumvented.
IT security staff intended to conduct a thorough investigation into this remote system,
but after they submitted their initial report, they were prohibited from accessing CLAIMS3 to
proceed with the investigation and were told to rewrite the report. 6 There are, apparently, two
subsequent versions of this report, both of which have been sanitized to varying degrees. I
have been told by a whistleblower that he was specifically told not to mention the existence of
this remote adjudication system to OSI criminal investigators. Further, the Director of
Adjudications at the National Benefits Center claimed to have no knowledge of any process
allowing manual insertion of files into the system. Only the IT staff at the Center admitted
knowledge of its existence.
6 Attachment 4: National  Benefits  Center  Adjudication  Process  Review , Office of the Chief Information Officer, March
23, 2006.
Testimony of Michael J. Maxwell, July 27, 2006
8
 
National Security Nightmare
When I first mentioned the existence of this system during an April 2006 hearing before
the Subcommittee on International Terrorism and Nonproliferation of the House International
Relations Committee, USCIS claimed that only EAD applications from Mariel Cubans,
documents submitted in response to Requests for Evidence, and applications that have been
terminated by other Service Centers can be manually entered into CLAIMS3 at the National
Benefits Center. However, this claim is not supported by the fact that the system is operated
remotely from USCIS Headquarters in Washington, DC. Nor is it supported by the fact that
the system is operated by a well-connected contract employee, or someone using his screen
name, at Headquarters, and utilizes a post office box in Washington that comes back to the
following address:
Library of Congress, Cataloging Distribution Service, CDS/MU, PO Box 75840,
Washington, DC 20013.
Finally, the attached screen scrape from the remote adjudication system shows that
applications for both EADs (I-785s) and replacement green cards (I-90s) are being processed
for aliens from a variety of countries other than Cuba, including China, Colombia, Germany,
Mexico, Pakistan, Russia, and South Africa. 7 According to IT security experts, someone in
Washington, DC, not in Lee’s Summit, Missouri, is creating records indicating that benefits
have been approved, even though no processing fee has been received by USCIS.
One would assume that if it were a legitimate system, the investigating IT staff would
have been informed of its purpose and assured that it was being audited, rather than being
forbidden from investigating further and forced to rewrite a report to remove potentially
embarrassing information. Additionally, if it were a legitimate system, USCIS would be
required to make it comply with the Federal Information Security and Management Act
(FISMA), as is required for all DHS IT systems. Of course, certain agencies are allowed to
manipulate immigration data in order to mount law enforcement sensitive operations. The
large volume of records being created, among other things, argues against this explanation. If
it is a law enforcement system, however, a poorly designed audit trail lifted the veil.
IBIS  Checks  on  Aliens  
The Enforcement Communications System (TECS), which is managed by Customs and
Border Protection, is essentially a gateway to the Interagency Border Inspection System (IBIS),
which consolidates the records of some two dozen Federal law enforcement and intelligence
agenciesincluding the Federal Bureau of Investigation, the Drug Enforcement Agency, the
Bureau of Alcohol, Tobacco and Firearms, and the intelligence communityand provides
access to state criminal and motor vehicle records. Through TECS, authorized adjudicators
can run a name through IBIS to find outstanding warrants, terrorist connections, immigration
violations, and other information necessary for deciding whether an alien should be permitted
to remain in the United States.
7 Attachment 5: Screen scrape of applications processed remotely in one 30-day period, along with an edited
version that shows more clearly the countries of origin of beneficiaries of the remote processing system.
Testimony of Michael J. Maxwell, July 27, 2006
9
 
National Security Nightmare
On October 5, 2005, before the Acting Deputy Director and others, the USCIS Director
of Fraud Detection and National Security, Louis “Don” Crocetti, explained the four categories
of TECS records as follows:
>
Level 1 records are those from the user’s own agency (Level 1 USCIS users would have
access only to USCIS records plus TIPOFF);
>
Level 2 records include a sizeable share of the criminal records from the other law
enforcement agencies (i.e., Level 2 USCIS users would have access to USCIS records,
TIPOFF, plus certain records from CBP, the FBI, the DEA, and so on);
>
Level 3 records include national security records, terrorist watch lists, threats to public
safety, and information about on-going investigations from two dozen agencies; and
>
Level 4 records include case notes, grand jury testimony, and other highly sensitive data
that are provided only on a need-to-know basis.
When DHS was created in January 2003, CBP, as the manager of TECS, entered into an
agreement with USCIS that required USCIS employees to undergo full background
investigations (BIs) before they may be granted Level 3 TECS access. Because of the sensitive
nature of some of these records, including on-going national security cases, it was and is
important that access to Level 3 records be restricted to adjudicators who themselves have
been thoroughly vetted.
The agreement included a two-year grandfather period during which legacy
Immigration and Naturalization Service (INS) personnel that had had access to Level 3 TECS
records at the INS would continue to have access so that USCIS would have time to complete
BIs on new employees and upgrade those on legacy employees when necessary.
USCIS leadership, however, decided not to spend the money to require full BIs on new
personnel or to upgrade the BIs on legacy personnel. Thus, when the grandfather period
ended in January 2005, CBP began restricting access by USCIS adjudicators with only limited
BIs, so that these adjudicators could access only Level 1 records or, in some cases, Level 2
records through TECS. They could not access the national security, public safety, or terrorist
records they needed to adjudicate applications.
Other than a few sporadic meetings among USCIS senior staff and, once in a while, with
some CBP officials, to talk about how many adjudicators might have restricted access, USCIS
leadership largely ignored the problem during the first nine months of 2005, despite
complaints from the field and warnings from OSI and certain FDNS personnel. Backlog
elimination was the top priority of the agency, so adjudicators were pressured to keep
pumping out the benefits applications, regardless of whether they had the ability to determine
if an applicant was a known terrorist or presented some other threat to national security or
public safety.
Internal documents make the problem abundantly clear:
Testimony of Michael J. Maxwell, July 27, 2006
10
National Security Nightmare
“ Without access to higher level extra-agency TECS records, USCIS employees with
background check responsibilities may miss information that is critical to the
adjudicative process. In the absence of this information, USCIS could grant an
immigration benefit to someone who poses a threat to national security or public
safety.” 8
When I first briefed this Subcommittee on September 29 of last year, I noted that
roughly 1,700 USCIS adjudicators lacked sufficient access to TECS to determine whether an
applicant has known terrorist connections or is a threat to public safety. About 80 percent of
all applications filed with USCIS are processed through a batch system that automatically runs
the proper level background check on each applicant. The other 20 percent, however, are
handled individually and an adjudicator must conduct the background check in TECS. This
tiered system was discussed in great detail at a meeting of senior leadership on October 5 th
2005.
The purpose of the meeting was to prepare for a briefing that ADD Divine and CoS
Paar would provide Secretary Chertoff on both internal corruption at USCIS and TECS
accessor lack thereofon October 7, 2005. Then-Acting Deputy Director Robert Divine,
Chief of Staff Tom Paar, Chief Counsel Dea Carpenter, Director of FDNS Don Crocetti, then-
Deputy Director of Domestic Operations Janice Sposato, and I were all present, as were a
handful of other senior staff.
Director Crocetti and his staff presented the results of a test they had conducted on
TECS. According to conclusive documentation from his National Security Chief of Staff,
adjudicators with only TECS Level 1 or Level 2 access were totally missing national security
and public safety information about applicants. In essence, they were operating blind.
We discussed the fact that, if background checks on 20 percent of the 7.3 million
applications adjudicated by USCIS in FY 2005 were handled manually, that would mean that
somewhere around 628,000 applications were likely processed by the 1,700 adjudicators who
lacked Level 3 access to TECS. This figure did not take into account the fact that adjudicators
without Level 3 access may be able to process cases faster because they get fewer background
check “hits” to resolve.
The obvious conclusion was that all USCIS adjudicators needed access to Level 3 TECS
records in order to properly vet applicants for immigration benefits and to ensure that known
terrorists and others who present a threat to national security or public safety are not able to
obtain immigration benefits. The only short-term solution would mean re-engineering the
USCIS business process and slowing down adjudications by allowing only adjudicators with
Level 3 access to conduct manual background checks. The long-term solution was to spend
upwards of $10 million to upgrade security clearances for USCIS adjudicators. Of course,
neither solution pleased top management.
8 Attachment 6: USCIS  TECS  Users  Report , Office of Fraud Detection and National Security, US Citizenship and
Immigration Services, July 25, 2005, p. 6.
Testimony of Michael J. Maxwell, July 27, 2006
11
 
National Security Nightmare
At that point, ADD Divine announced that we had reached a core question: Whether
immigration to the United States is a right or a privilege. He then asserted that it has always
been the position of INS and now USCIS that immigration is a right, rather than a privilege.
Chief Counsel Carpenter concurred.
Thus, it is no surprise that, in the wake of this meeting, USCIS chose neither the short-
term solution nor the long-term solution. Instead, since mid-October of 2005, senior USCIS
managers have been meeting with CBP officials and trying to convince them to extend the
grandfather period, to restore and/or upgrade TECS access to those adjudicators who have
been cut off or restricted, and to waive in without the required background investigations
contract workers hired to eliminate the application backlog. [Granting contract workers who
have not been vetted access to national security records would itself result in a significant
security breach, since it could put sensitive national security information in the wrong hands.]
To date, not one adjudicator with a deficient background investigation has been
scheduled for an upgrade and, while it does appear that CBP has extended the grandfather
period, no memorandum of understanding between the two agencies has been signed. In fact,
just four days ago (July 24), an adjudicator in the Midwest confirmed that he still has Level 2
TECS access, more than nine months after USCIS leadership was shown conclusively that
adjudicators must have Level 3 access to ensure national security.
Background  Investigations  of  Employees  
My former office is tasked with adjudicating the background investigations of USCIS
employees once the Office of Personnel Management gathers the information. Shortly after
OSI was created, in the fall of 2004, we inherited a backlog of 11,000 pending BIs on USCIS
employees. In light of the fact that I had a total of six personnel security specialists to
adjudicate BIs, it is remarkable that we managed to reduce the backlog to about 7,000 by the
time I resigned in February 2006. Because of the hiring frenzy driven by backlog elimination,
however, OPM was sending new BIs at a rate of 3.5 for every one that OSI cleared.
I submitted at least eight proposals to increase the number of personnel security
specialists to address this backlog, but they all were denied by senior management. Finally, in
January 2006, CoS Paar approved 15 additional positions for OSI, but told me to prioritize
internal affairs and indicated that five additional personnel security specialists to adjudicate
background investigations should be sufficient. That is a total of 11 people to adjudicate the
7,000 backlogged BIs, plus the BIs for new adjudicators hired to eliminate the backlog, plus up
to 4,000 upgraded BIs on current adjudicators whose access to TECS was or could be restricted.
Asylum  Seekers  with  Terrorist  Ties 
As of March 10, 2006, the USCIS Headquarters Asylum Division had a segregated
backlog of almost 900 asylum cases that it had not reported to Congress except as part of the
overall backlog. This particular backlog includes two groups of asylum cases, both of which
raise serious national security questions:
Testimony of Michael J. Maxwell, July 27, 2006
12
National Security Nightmare
1.
369 cases in which the applicants claim that they have been falsely accused by their
home government of engaging in terrorist activity; and
2.
515 cases in which the applicants have provided material support to a terrorist or a
terrorist organization.
These asylum applicants are in the United States right now; some have been here since
November 2004. Their cases are on hold because DHS and USCIS counsel, along with the
Justice Department’s Office of Immigration Litigation, asked the Asylum Division to refrain
from denying asylum in cases like theseeven though the applicants are inadmissible as
terrorists or terrorist supportersin order to give DHS time to develop procedures for
considering whether the Secretary of Homeland Security should exercise his non-reviewable
discretion to grant them a waiver of inadmissibility, so that they can stay permanently in the
United States, despite their terrorist ties. DHS has established a working group to propose the
procedures.
Failure  to  Share  Information 
National  Security  Hits  on  IBIS 
As of August 2005, some 1,400 immigration applications, most for U.S. citizenship, that
had generated national security hits on IBIS were sitting in limbo at USCIS headquarters
because the adjudicators trying to process them were unable to obtain the national security
information that caused them to be flagged.
If a government agency (e.g., FBI, CIA, DEA, ATF) has national security information
about an alien, or when an agency has an ongoing investigation that involves an alien, the
USCIS employee who runs a name check in TECS will see only a statement indicating that the
particular agency has national security information regarding the alien. (This is assuming that
the employee has Level 3 TECS access; without such access, the employee will get no
indication at all that national security information exists.) Adjudicators are not permitted to
deny an application “just” because there is national security information or a record with
another law enforcement agency. Instead, the adjudicator must request, acquire, and assess
the information to see if it makes the alien statutorily ineligible for the immigration status or
document being sought, or inadmissible or deportable. However, whether or not an
adjudicator can acquire the national security information, in order to assess it, depends on at
least two things:
1.
The level of background investigation the adjudicator has undergone, which
determines the types of information he or she is lawfully permitted to access; and
2.
The nature of the national security information, which determines the willingness or
ability of the agency with the information to share it with non-law enforcement
personnel (all USCIS employees, including those in the Fraud Detection and
National Security unit, are non-law enforcement except for the 1811 criminal
investigators and some of the 0080 security specialists who work in OSI).
Testimony of Michael J. Maxwell, July 27, 2006
13
National Security Nightmare
The more sensitive the national security information, the less likely that a non-law
enforcement employee will be able to get it. This is the genesis of the cases that are referred to
what used to be called the “FOCUS group,” but has been renamed the National Security and
Records Verification Directorate (NSRV): adjudicators see that there is national security
information on the alien, but they are unable to obtain the information to assess it.
The most troubling of these cases are applications for naturalization because 8 U.S.C.
1447(b) requires USCIS to make a final decision within 120 days of interviewing the applicant.
Once that 120-day window closes, the applicant can petition a court, and the court can either
grant or approve the application, or it can order USCIS to issue a decision, regardless of
whether a national security hit has been resolved. [The law also prohibits USCIS from
scheduling the interview before the results of the background checks are returned, but, until
recently, USCIS was ignoring this prohibition since it impeded backlog reduction.]
USCIS set up a group of adjudicators in Headquartersformerly called FOCUS;
currently, the NSRVto review these applications and either advise field adjudicators or
simply issue the final decisions. However, as non-law enforcement personnel, they may have
no better access to the relevant law enforcement information than the original adjudicator
who referred the application to Headquarters in the first place. OSI, whose law enforcement
personnel have the security clearances and the contacts necessary to obtain the pertinent
information, offered to assist adjudicators with these applications. Rather than utilizing OSI,
however, USCIS leadership instructed adjudicators to contact only FDNS. Since FDNS lacks
law enforcement personnel, it, too, has been unable to obtain the necessary information from
these outside agencies in some cases.
In documented instances, FDNS has instructed adjudicators to proceed with processing
an application for U.S. citizenship, even though neither FDNS nor the adjudicator knew why
the alien had generated a national security indicator. 9 Despite the fact that my staff was
willing and able to assist in obtaining the national security information that was otherwise
unavailable to USCIS, I was ordered directly by Acting Deputy Director Divine to remove
myself and my staff from any involvement with these cases and to cease any communication
with the FBI and the intelligence community. I was told repeatedly that FDNS was the official
liaison and so I was to have no further contact with any law enforcement or intelligence
agencies or participate in any information sharing, either within USCIS or outside USCIS. I
have been told that my successor is working under the same constraints.
The result is that adjudicators are faced with a choice between approving an application
for U.S. citizenship with limited information about what raised a national security flag versus
denying the application, perhaps wrongly, or asking someone at OSI to violate the direct order
of the Deputy Director and the Chief of Staff in order to share critical information with them.
In a November 2005 report on Alien Security Checks by DHS-OIG, USCIS told the IG
investigator “FDNS has resolved all national -security related IBIS hits since March 2005.
9 Attachments 7 and 8: FOCUS emails.
Testimony of Michael J. Maxwell, July 27, 2006
14
 
National Security Nightmare
FDNS’s Background Check Analysis Unit reviews, tracks, analyzes, and resolves all name-
vetted hits related to national security” [emphasis added]. 10 Technically, this statement is true,
but only because the former head of Domestic Operations redefined the word “resolution.” In
a memo dated March 29, 2005, Bill Yates writes in a footnote:
“Resolution  is  accomplished  when  all  availabl e  information  from  the  agency  that  posted 
the  lookout(s)  is  obtained.   A  resolution  is  not  always  a  finite  product.   Law  enforcement 
agencies  may  refuse  to  give  details  surrounding  an  investigation;  they  may  also  request 
that  an  adjudication  be  placed  in  abeyance  during  an  ongoing  investigation,  as  there  is 
often  a  concern  that  either  an  approval  or  a  denial  may  jeopardize  the  investigation  itself” 
[emphasis  added]. 11  
In other words, USCIS immigration officers can “resolve” a national security hit and
grant a benefit simply by asking the agency holding the information to turn it over, regardless
of whether the adjudicator is actually able to obtain the data necessary to decide the
application appropriately. One of the first lessons adjudicators are taught is that they must
grant the benefit unless they can find a statutory reason to deny it. Without the national
security information from the law enforcement agency, the adjudicator must grant the benefit
unless there is another ground on which to deny it, even where the applicant may present a
serious threat to national security.
Amazingly, other DHS component agencies have stated that they will not share threat
information with USCIS regarding TECS-related inquiries:
“CBP  has  advised  on  many  occasions  that  it  considers  USCIS  to  be  a  Third  Party 
Agency  and  that  it  will  not  provide  details  surrounding  records  it  has  placed  in  TECS.  . 
.This  creates  an  impossible  situation  for  USCIS  employees  conducting  background  check 
resolution  activities,  as  ports‐ of‐ entry  note  they  may  not  release  information,  and  the 
National  Targeting  Center,  CBP’s  operational  center,  states  categorically  that  it  will  not 
provide  any  assistance  to  USCIS  callers  who  have  encountered  a  CBP  hit.  Unless  there  is 
JTTF  involvement,  USCIS  will  not  receive  derogatory  input  from  CBP  beyond  a  TECS 
record.” 12
Likewise, according to a recent GAO report, ICE officials told GAO investigators that
they “opposed allowing FDNS access to sensitive case management information. They said
that there was a need to segregate sensitive law enforcement data about ongoing cases from
non-law enforcement agencies like FDNS.” 13
10 A  Review  of  US  Citizenship  and  Immigration  Services’  Alien  Security  Checks , OIG-06-06, Office of Inspector General,
DHS, November 2005, p. 37.
11 Attachment 9: Yates memo, March 29, 2005.
12 See Attachment 6: USCIS  TECS  Users  Report , Office of Fraud Detection and National Security, US Citizenship
and Immigration Services, July 25, 2005, p. 7.
13 Immigration  Benefits:   Additional  Controls  and  a  Sanctions  Strategy  Could  Enhance  DHS’s  Ability  to  Control  Benefits 
Fraud , Government Accountability Office, March 2006, p. 33.
Testimony of Michael J. Maxwell, July 27, 2006
15
 
 
 
 
National Security Nightmare
Other  Alien  Background  Checks
Because USCIS is not a law enforcement agency, unlike its predecessor, the Immigration
and Naturalization Service, it faces unnecessary obstacles when it comes to conducting certain
kinds of background checks:
>
The FBI does not permit non-law enforcement personnel to conduct name checks, so
USCIS must submit to the FBI the name of every alien for whom a name check is
required (applicants for lawful permanent residence, naturalization, asylum, and
cancellation of removal make up the bulk of these) and then wait for the FBI to return
the results of the check. USCIS also has to pay the FBI for each name check that is
conducted. Because the FBI devotes insufficient manpower to the task of running these
name checks, it has a growing backlog of checks that have been requested but not run.
When I briefed the Subcommittee last September, the FBI’s name check backlog stood at
about 170,000. As of May 2006, the backlog had grown to almost 236,000. USCIS
reported that about 65 percent of these had been pending for more than 90 days, while
the other 35 percent had been pending for more than one year.
Since adjudicators are not supposed to grant an immigration benefit until all required
background checks are completed, this backlog can cause major delays in processing
times. It also presents a major national security risk for two reasons: (1) the alien is
already in the United States waiting for the benefit application to be adjudicated, so this
delay could provide a terrorist all the time he needs to plan and carry out his attack;
and (2) as long as all required background checks have been initiated, an immigration
court can order USCIS to grant an immigration benefit, even though the FBI name check
is still pending. This latter situation could easily result in the granting of U.S.
citizenship or permanent residence to a known terrorist.
>
USCIS adjudicators cannot routinely run criminal history checks on alien applicants.
Because they are not law enforcement personnel, adjudicators are only allowed to
routinely search for active arrest warrants for applicants. Only if an adjudicator has
reason to believe that an alien has a criminal history may he request a criminal history
check. 14 Adjudicators learn about convictions that occurred prior to the filing of an
application for lawful permanent residence, naturalization, asylum, cancellation of
removal, and certain categories of nonimmigrant status through the FBI fingerprint
check, assuming that the convicting authority has reported the conviction to the FBI.
However, if an alien is applying for a benefit that does not require an FBI fingerprint
check or if the alien is convicted of a crime after he files an application and the FBI
fingerprint check is done but before the application is adjudicated, the adjudicator may
approve the application without ever knowing about the conviction.
14 See Attachment 2: “Draft10/4/05 Initial Statement,” p. 4.
Testimony of Michael J. Maxwell, July 27, 2006
16
 
National Security Nightmare
Outdated  IT  Systems 
The IT systems at USCIS are antiquated, making it difficult or impossible even to share
information from one district office to another. One IT professional at the agency told me
recently that USCIS IT systems “could have been designed by a high school kid.”
Director Gonzalez was asked during his October 18, 2005, confirmation hearing about
USCIS’ ability to implement a new guest worker program. His reply was, “I know the systems
that exist right now wouldn't be able to handle it.” He was right. At least three reports from
the DHS IG and one from the GAO in the past year alone point to the urgent need for USCIS to
modernize and secure its IT systems and to move away from the current paper-based
systemthough not to the auto-adjudication system the Texas Service Center has been testing.
After spending millions of dollars of appropriated funds to modernize the IT system, in late
2005, USCIS scrapped two years of planning, program design and implementation, and started
over. In the IT security realm, despite assuring the DHS IG that IT security would be a priority
and despite specific IT threat data available to senior management, the IT security budget for
USCIS in FY 06 stands at only $70,000.
When I attempted to spend 1.1 million dollars of my pre-approved budget on IT
security related services, software, hardware and personnel, my request was denied. Michael
Aytes, head of Domestic Operations, stated “if you test our IT systems, you will find
something wrong and we will have to pay to fix it.” My response was “better that my office
find the problem than our adversaries, don’t you think?”
Susceptibility to external manipulation of biographic immigration data, destruction of
biometric data, and corruption of large data files is simply a reality at USCIS. Since February
2006 multiple personnel have spoken with me on the condition of anonymity regarding the
potential security threats the IT systems at USCIS present. Due to the lack of a national
security perspective, USCIS has an on-going problem with the mishandling of sensitive IT
systems and information. Just last week, the personnel files of every full-time employee at
USCIS (some 8,500 in all) were uplinked to the DHS intranet and emailed to some 135
individual email accounts via an unsecured route because management in the USCIS Budget
Office failed to train a new employee in how to handle sensitive personnel files before
ordering her to work with them. The files include employee names, social security numbers,
dates of birth, home addresses, salaries, grades, and positions, among other things.
In a typical reaction to such an incident being exposed, management sought to
scapegoat the new hire, rather than taking responsibility for their actions. Investigators were
able to determine that at least 16 individuals accessed the files on the intranet, but because of
the outdated system, they cannot determine who these individuals are. This breech of privacy
is not only a security policy violation it may present personal security ramifications for certain
federal employees working at USCIS.
Testimony of Michael J. Maxwell, July 27, 2006
17
National Security Nightmare
Additional systems vulnerabilities are commonplace, including the downloading and
placement of TECS terrorism-related files on desktop computers accessible both via the
network and the internet.
Conclusion 
The Senate bill acknowledges, at least implicitly, that we do not have control of our
borders, that we have no interior enforcement to speak of, that background checks on legal
applicants cannot determine who is or is not a terrorist, and that fraud has reached epidemic
proportions. Then it proposes that we as much as triple legal immigration levels, institute a
brand new temporary worker program that is not actually temporary, and give legal status to
10 to 20 million individuals who have broken our laws.
Secretary Chertoff recognized in his testimony before the Senate last fall that “parts of
the system have nearly collapsed under the weight of numbers.” I would argue that our
whole immigration system has already collapsed under the weight of the current numbers. As
we have seen over the past five months of debate, there is consensus that the entire
immigration system needs to be redesigned. It defies logic, then, to build upon a foundation
that has failed us, as the Senate bill would do.
Current immigration policy is an abject failure. As a leader in the global war on
terrorism, we cannot afford to continue to ignore this fact. H.R. 4437 is a good first step
toward the goal of addressing national security through both border security and interior
enforcement. Additionally, it aggressively targets internal corruption and fraud at USCIS. S.
2611, on the other hand, ignores national security and proposes building a whole new
immigration structure on top of a collapsed foundation.
Testimony of Michael J. Maxwell, July 27, 2006
18