Mr. SMITH. Thank you, Mr. Yates.
Mr. Cutler, assuming that the problem is as bad as Mr. Yates just
testified, and you have one service center out of four with 17,000
fraudulent applications because of marriage fraud, do you think the
problem is that great?
And a second question at the same time, since not all agents are
going to have photographic memories, what is the solution to try to stop
the degree of marriage fraud that we are seeing today in the future?
Mr. CUTLER. Well, good morning, Mr. Chairman. I welcome
this opportunity. I was an I–130 examiner many years ago back in the
1970’s. I am now with the Drug Task Force.
I can tell you many times when I review immigration files of targets
of investigation, people we believe are involved in narcotics and other
criminal activities, we find that these people have their residency in
the United States and yet their spouses are nowhere to be found. It may
well be that they had a marriage that was legitimate and it dissolved,
as happens to many people; or it may well have been they entered into a
marriage fraud in the first place.
It is very difficult when you get a file of somebody who became a
resident alien based on a marriage to make a definitive decision as to
whether or not there was a marriage fraud. There are so many different
ways that it is done. You have people that get divorced on paper; they
really aren’t divorced, they still have their spouses back home waiting
in the wings, waiting to come over as soon as the person finalizes their
Even in the area of imposters—we keep talking about name checks, we
are going to check the name against the master list. I think what is
even more important and perhaps more worthwhile would be for us to be
more reliant upon biometrics.
The problem that we have is that people can be anybody they want to
be. I had an instance recently where we had a Russian national, whom we
arrested, and the guy was apparently deported from the United States,
and came back to the United States with a brandnew identity. He paid a
total of $140 for a new passport from Russia, and this passport was a
legitimate document, improperly issued. This passport contained a
nonimmigrant visa. The State Department couldn’t be expected to figure
Mr. SMITH. Let me squeeze in one more question. I want to go back to your point about biometrics.
As I understand it,
that would include a photograph or
fingerprinting. I would like to ask, and I see—when you mentioned that,
I saw several heads nod. I would like to ask all of our witnesses what
they think about that and whether that would help reduce the widespread
use of fraudulent documents.
Immigration officials struggle with identity
management – and mismanagement
Sternstein December 14, 2012
Since the days of Ellis Island, the identity of foreigners has
been documented and sometimes changed upon arrival in America.
Turn-of-the-century immigration officers checked ship manifests or
simply translated the names provided by non-English speaking
Post-Sept. 11 Homeland Security Department officials are more
cautious. Authorities check myriad documents, biometrics and various
interagency databases to protect lawful immigrants, and to deny entry
to illegal aliens, criminals and terrorists.
Still, some manage to fake out today’s more sophisticated
As the cache of personal data grows, so does the risk that con
artists will exploit it for financial gain and federal authorities
will misuse it, critics say. Already, legal immigrants have been
detained because of identity mismatches, work visa candidates have
been targeted by identity thieves, and insiders have stolen
immigration records to sell fake passports.
Federal officials maintain they are trying to verify the
identities of foreigners without compromising personal information.
Fingerprints and iris scans are among the more reliable ID
verification technologies. Portable DNA screening devices may be on
the horizon. Officials say they take care to safeguard the databases
that house the sensitive data collected.
Nonetheless, the potential for mission creep with multiple ID
systems in play has immigrant rights groups and privacy activists
skittish. Conversely, critics of enforcement operations say the
government doesn’t collect enough data to confirm legal status. In
August, for example, more than 1 million young undocumented
foreigners became eligible to apply for a two-year reprieve from
deportation solely by submitting required paperwork and paying the
U.S. Citizenship and Immigration Services Director Alejandro
Mayorkas says he has prioritized fraud detection and counterterrorism
efforts since taking office in 2009. “I determined we must enhance
the emphasis on quality in our adjudicative approach,” he told the
House Judiciary Subcommittee on Immigration Policy and Enforcement in
February. “We strengthened the international exchange of threat
information, including biometrics . . . new vetting protocols subject
refugee applicants to more rigorous screening against a number of
security databases to ensure they are eligible for refugee status and
do not pose a threat to national security or public safety.”
The biometrics and number of security databases, however, create a
gold mine for identity thieves. The Labor Department, for instance,
makes public certain forms employers submit for foreigners they want
to sponsor for H-1B work visas. Immigration attorneys say scammers
could be using this and other online personal data for spear phishing
campaigns designed to sell sham documents to foreigners or con them
into paying bogus USCIS fines. Immigrants are especially vulnerable
to identity and financial theft because their livelihood is tied to
paying fees and submitting personal information to stay in the United
In July, Labor attracted criticism again when it sought comment on
plans to collect even more details on job candidates, including name,
birthdate, where the immigrant would be working, and information
about wages. “The more personally identifiable information that you
put in the public realm the greater risk of identity fraud,” says
Blake Chisam, former senior counsel on the immigration subcommittee.
Foreigners are reluctant to report ID theft to authorities because
many distrust law enforcement.
The Labor Department is still reviewing input on proposed
modifications to work visa forms and expects to issue a draft form
for further public comment. A Labor official says the potential
changes “are intended to enhance the department’s integrity
review and to ensure accuracy and completeness. The department
will comply with all laws and regulations concerning the disclosure
of confidential information.”
Chisam, now a partner at immigration law firm Fragomen, Del Rey,
Bernsen and Loewy, says rights advocates have filed reports with
USCIS about foreign nationals who have received calls from swindlers.
He described situations in which a purported government official
claimed, for example, “Your I-94 immigration form number is [XYZ].
We at the agency believe there is a problem and you need to file an
additional fee to [some country] by Western Union.”
USCIS officials say they are aware of websites pulling similar
stunts that offer bogus job opportunities to foreign workers. The
supposed employers hosting these sites inform applicants of certain
immigration fees they have to pay. After the money is transferred,
the applicant never hears from the “employer” again and the
website goes dark. USCIS is advising foreigners on how to avoid such
scams through a Web page called the Wrong Help Can Hurt. But some say
the remedy is not to collect less information because that also could
harm public safety. Critics of USCIS’ Deferred Action for Childhood
Arrivals program complain that young illegal immigrants aren’t
required to undergo biometric ID checks. The initiative relies on
what opponents say is a bunch of forgeable papers—birth
certificates, school records, immigration forms, insurance policies
and other affidavits.
“To a certain extent, when you are dealing with these deferred
populations, you are dealing with a population that you cannot
verify. You are accepting fraud into the system automatically,”
says Janice L. Kephart, director of national security policy for the
Center for Immigration Studies, an organization that favors limiting
Citizens concerned about illegal immigrants say the Obama
administration’s deferral program essentially sidesteps the law.
Lawmakers rejected legislation known as the DREAM Act, which would
have offered a provisional path to legalization for undocumented
students and military members.
Officials say USCIS is attentive to the risk of adolescent
immigrants cheating the system. “The Fraud Detection and National
Security Directorate has significant tools and expertise to protect
the integrity of the immigration system, including the deferred
action program,” spokesman Christopher Bentley says. USCIS is
working with school districts and educational institutions to figure
out mechanisms for spotting and discouraging fake records, he adds.
USCIS also conducts outreach to “protect the public from falling
victim to scams involving false documentation,” Bentley says.
Despite such efforts, document peddlers, including federal
employees, have suckered immigrants
and U.S. citizens. “At any
point in time that you have material gain and gatekeepers, you’re
going to have some degree of corruption,” says Travis Hall, a
doctoral candidate at New York University who studies the social and
cultural history of identification technologies.
He is examining the use of iris scans, DNA tests and other
physical traits to improve national security, border control and
social welfare. “There’s a whole slew of problems that can happen
on biometric systems if someone gets enrolled as someone else,” he
says. Due to cultural and language barriers, foreigners may not have
enough information about the workings of the immigration system to
resolve data errors. “Unless you’ve got resources, it’s really
hard to fight back,” Hall says.
Some immigrant rights groups contend foreigners are wrongly
deported under a controversial Immigration and Customs Enforcement
fingerprinting program called Secure Communities. The initiative
compares the records on offenders in an FBI multibiometric database
with fingerprints in a DHS identification system to determine whether
suspects are in the country illegally.
One immigrant allegedly was wrongfully imprisoned for months as a
result of the Secure Communities program. James Aziz Makowski, who
gained citizenship at age 1 after being adopted, now is suing the
government for detaining him due to the misuse of outdated
citizenship records. He initially came in contact with authorities
after being arrested on drug charges in July 2010. ICE had not
revised its records in more than 20 years and Makowski’s
nationality was registered as “India,” according to a court
complaint. Meanwhile, the FBI had him listed as a citizen since high
school, when he underwent a background check to join the U.S.
Marines. Only after Makowski’s father retained a lawyer did ICE
drop the extradition case.
ICE officials say they are working to prevent such mishaps. The
agency “has already taken numerous steps to ensure that the
detention of U.S. citizens does not occur, including a new detainer
form and a toll-free hot line—(855) 448-6903—that detained
individuals can call if they believe they may be U.S. citizens,”
ICE spokeswoman Gillian Christensen says.
Agency officials insist the FBI’s information sharing program is
useful. “One of the benefits of Secure Communities is that
individuals’ identities are verified or determined through
biometric data—fingerprints, specifically—to determine whether or
not they’ve been encountered before by federal law enforcement or
DHS,” Christensen says. The program “has been helpful in
uncovering individuals’ true identities when they’ve given state
or local law enforcement aliases, or have otherwise been engaged in
some kind of identity or benefit fraud.”
Several DHS agencies are experimenting with other biometric
indicators to dig up criminal histories. Homeland Security officials
have begun testing iris-matching technology on suspected illegal
immigrants at Border Patrol stations. “The department is exploring
additional biometric modalities such as face and iris to determine
what may be possible to implement in our operational environments,
whether it be for enforcement or Trusted Traveler programs,”
Kimberly Weissman, spokeswoman for the US VISIT program,
told Nextgov in July. US VISIT maintains Homeland
Security’s ID database. Trusted Traveler allows select low-risk
American and foreign international passengers who have consented to
background checks and fingerprinting to zip past U.S. airport
Homeland Security also has developed rapid DNA equipment to
confirm kinship during immigration processing. “When there is no
evidence that establishes a familial relationship, we can suggest to
people that they might want to provide DNA testing results, but we
can do no more than suggest it,” USCIS’ Bentley says. “Our DNA
policy is that if people want to provide DNA voluntarily on their
own, and it helps their case, they can.”
DHS is designing a rapid DNA system for a variety of other
potential uses too, including “countering human trafficking, family
reunification, identification of victims following mass casualties
and checks against DNA samples of known criminals,” a September DHS
privacy assessment stated.
Homeland Security needs rapid DNA technology—portable analysis
tools intended to identify individuals within an hour—to single out
border violators and ICE detainees, according to a 2010 DHS
presentation. An earlier internal USCIS policy options memo had
proposed forcing immigrants to submit a DNA swab. Officials were
dealing with people from countries like Somalia who were falsely
claiming a right to U.S. residency based on phony identities.
“Screening from this region is important, as evidenced by the 1998
U.S. embassy bombings in Kenya and Tanzania and the fact that Somalia
has long been a haven for al Qaeda. Adding urgency to the issue is
the recent revelation that a naturalized U.S. citizen blew himself up
in a suicide bombing in Somalia,” the memo stated.
Hall says DNA samples may be impractical for searching records to
validate identities but useful for proving parental lineage or
matching up multiple files on the same person. DNA “is good at
telling you that two people aren’t the same, but not so much in
differentiating between two people who are really similar,” he
says. It would be difficult to prove siblings are related with DNA or
to confirm a grandfather-grandson relationship. “The only way that
DNA would be able to tell if someone was [Osama] bin Laden’s
brother would be if they already had DNA from bin Laden’s brother
or his mother and father,” Hall says. For these reasons, he adds,
DNA matching among relatives needs further investigation.
There also are civil liberties tensions surrounding the holding
period for DNA swabs and other permissible applications of the
genetic material. “When samples collected for civil purposes, or
even criminal if the person is acquitted, are then kept indefinitely
and used to be searched for all kinds of different purposes—it can
get people caught up in all kinds of problems,” Hall says. “Usually
you can have your DNA or fingerprints expunged, but you have to
specifically ask and go through the bureaucratic machine to do so—the
onus is on the individual, not the state.”
Plus, DNA samples are now known to reveal more sensitive
information than previously believed. Several years ago, Homeland
Security officials said the FBI’s method of creating DNA profiles,
using 13 markers, positively identified an individual without
disclosing his or her traits or disorders. But in September,
scientists discovered that those 13 markers and every DNA marker once
thought of as “junk DNA,” or unassociated with personal
characteristics, actually do reveal telling information.
The September DHS privacy review stresses that each new purpose
for using rapid DNA will require significant new regulations or
regulatory revisions, as well as privacy and civil rights
assessments. And Bentley repeats, “We have no statutory, regulatory
authority to require DNA testing.”
Immigration processing has become a lot more sophisticated since
the days of Ellis Island, but even with high-tech ID systems, Lady
Liberty’s watchful eye is increasingly put to the test.