I. Introduction

In the early morning hours of Thursday, July 31, 1997, police officers from the New York City Police Department raided an apartment in Brooklyn, New York, based on a tip that people in the apartment had an explosive device that they intended to use to bomb the New York subway system. During the raid, the police arrested two men, Gazi Ibrahim Abu Mezer (Mezer) and Lafi Khalil (Khalil), and recovered a pipe bomb in the apartment.

After the arrests, the police determined that Mezer and Khalil were Palestinians who were in the United States illegally. It was also learned that Mezer had been apprehended three times in the previous thirteen months by the Immigration and Naturalization Service (INS) as he attempted to illegally enter the United States from Canada. After Mezer's third detention in January 1997, the INS had begun formal deportation proceedings against him, but Mezer had been freed on bond while the deportation proceedings were pending. After his release, Mezer had filed an asylum application stating that he suffered a fear of persecution if he were deported to Israel because the Israeli government wrongly suspected that he was a member of a terrorist organization known as Hamas. Mezer subsequently withdrew this asylum application, representing through his attorney that he had left the United States. It was discovered that he had not done so when he was arrested in the Brooklyn raid. Khalil was also in the United States illegally, having come to the United States on a tourist visa that had expired.

The revelations about Mezer's and Khalil's illegal immigration status provoked significant criticism about how their cases were handled, and generated requests that the Office of the Inspector General review how both came to enter and remain in the United States. As a result, we decided to undertake this review, which focuses on how Mezer and Khalil illegally entered and remained in the United States. Before we describe how we conducted our review and the organization of this report, we briefly discuss the press accounts describing the arrest of Mezer and Khalil and the reaction to the reports about their immigration status.

A. Press accounts

According to newspaper articles, at about 10:45 p.m. on Wednesday, July 30, 1997, a man flagged down two police officers in Brooklyn, New York, and told them that some men with whom he shared a nearby apartment were planning to bomb a New York subway station. This witness was taken to a police station, where he described the men in the apartment, the layout of the apartment, and the bombs the men had. At about 4:40 a.m. on Thursday morning, July 31, a New York City Police Department (NYPD) Emergency Services Unit raided the apartment. Upon entering the apartment, the police ordered Mezer and Khalil not to move, but they ignored the order. The police shot both men when one attempted to grab an officer's weapon and the other reached toward a black bag. Both Mezer and Khalil were arrested and taken to a Brooklyn hospital in serious condition with multiple gunshot wounds.

According to the press accounts, the police recovered a bombing device in the apartment constructed of four pipes, each loaded with black powder and wired to a single power source. It was reported that this bomb lacked a timer and was designed as a suicide bomb. A senior law enforcement official stated about the device: "That thing was all set and ready to go. It is not the kind of thing you plan to keep around unless you plan to use it right away." New York Police Commissioner Howard Safir stated that each of the four components of the device was reportedly capable of killing someone at a distance of 25 feet. It was further reported that a separate device made up of a single pipe bomb wrapped with nails, but without a detonation system, was also found in the apartment.

According to newspaper stories, Mezer admitted while he was in the hospital that he planned to plant a bomb in the New York subway system and also told the police how the bombs seized in his apartment could be detonated or disarmed. Another newspaper article reported that while searching the apartment, the police found a "suicide note" written by Mezer in Arabic, which expressed hatred for Jews and Americans, denounced persecution of Arabs, and said goodbye to his family. The article reported that police also found anti-Israeli literature and a portrait of Sheik Omar Abdul Rahman, the blind Egyptian cleric who was convicted in 1995 of plotting to blow up the United Nations Headquarters, a federal building, two tunnels, and a bridge in Manhattan. Newspaper articles also stated that both Mezer and Khalil were Palestinians who grew up on the West Bank of Israel and,according to reports on Israeli television, had "security records" in Israel.1

Shortly after the arrests, the press summarized additional evidence that emerged about Mezer's immigration history and his attempts to enter the United States illegally. One article reported that since June 1996, Mezer had been apprehended three times attempting to enter the United States along the northwest border between the United States and Canada. After Mezer's last apprehension in January 1997, he had been placed in deportation proceedings by the INS and held for three weeks on a $15,000 bond in an INS detention center. He was freed in February 1997 after the bond was reduced to $5,000 and he was able to post the reduced bond. The article reported further that at a deportation hearing in April 1997, Mezer filed an application for political asylum, claiming that he would be persecuted if ordered to return to Israel because the Israeli government considered him to be a member of Hamas, but denying any association with Hamas. The article stated that at a later immigration hearing on June 23, 1997, Mezer "withdrew his application for asylum, and agreed to leave the country within 60 days. But he moved to Brooklyn."

B. Reaction to the press accounts

According to newspaper articles, revelations about Mezer's immigration history left New York Mayor Rudolph Giuliani "seething." On August 1, 1997, Mayor Giuliani was quoted as stating, "I think it is appropriate to question why this person [Mezer] was allowed into the country announcing that he was part of a terrorist group in Israel." The mayor added, "Maybe in the future we can learn something from it." Mayor Giuliani was quoted in another article as stating that it was "a mistake" that Mezer had been "paroled into" the United States, which suggested that the INS had allowed Mezer into the country temporarily without proper documents. INS officials responded that the mayor was wrong, since Mezer "was not paroled. He entered illegally."

On August 3, 1997, Mayor Giuliani criticized the policies which he said allowed Mezer "to roam the U.S." pending his asylum hearing as "pure administrative gobbledygook." Giuliani stated that "if someone is accused of being a terrorist, then put them in jail until you determine whether it's true or not."

On August 4, 1997, Richard Kenney, a spokesman from the Executive Office for Immigration Review (EOIR), the agency in the Department of Justice that is responsible for adjudicating immigration appeals, responded to a news reporter who cited Mayor Giuliani's criticisms. Kenney stated that there was no evidence that Mezer was actually a member of Hamas and that Mezer's statement in an asylum application that he had been wrongly accused of being part of Hamas was not "evidence" that he was in fact a terrorist. Kenney added that the asylum process was confidential and separate from the law enforcement process, because the asylum process was intended to protect individuals from persecution in their home countries. Kenney said, "Enforcement is not an issue in asylum cases, period. We don't use an asylum application to determine if someone is a danger." Kenney stated that Mezer's statement would not have generated a law enforcement investigation, and if immigration court or asylum officials had asked the State Department and the Israeli government whether Mezer was a terrorist, it would only have been in the context of determining whether he should be given asylum.

C. The OIG investigation and report

Our review focused on the circumstances surrounding how the INS handled Mezer's and Khalil's immigration cases. We focused particular attention on the contacts between Mezer or Khalil and immigration authorities, what happened when they came to the United States, the legal proceedings involving their cases, and the reasons for the actions that were taken by federal officials.

We began our review by collecting documentation relating to Mezer's and Khalil's immigration proceedings, including Mezer's and Khalil's complete Alien Files (or "A-files") which document their immigration cases, summaries prepared by the INS describing Mezer's unsuccessful attempts to enter the United States illegally, the transcripts of the hearings in Mezer's deportation proceedings, notes from the INS attorneys who handled Mezer's deportation proceeding, records of the visa which allowed Khalil to enter into the United States, relevant immigration law and regulations, and background material on the immigration process. We interviewed the INS and government officials who were involved with their cases, such as the INS officials who detained Mezer three times in 1996 and 1997 along the northwest border, the immigration attorneys and judges who handled Mezer's deportation proceedings, and the immigration officials who allowed Khalil to enter the United States on a visa. We also interviewed various individuals from the FBI, United States Attorneys' Offices, the Department of State, the National Park Service, the U.S. Customs Service, the U.S. Secret Service, the International Committee of the Red Cross, Canadian immigration authorities, as well as Mezer's attorney. In total, we conducted more than 75 interviews of individuals who had some involvement with these matters.

In conducting our review, we were mindful of the ongoing criminal prosecution of Mezer and Khalil for their alleged attempt to bomb the New York subway. That prosecution is being handled by the United States Attorney's Office for the Eastern District of New York and New York's Joint Terrorism Task Force (JTTF), which includes representatives from the New York City and New York State police departments, the FBI, the INS, the Secret Service, and the Department of State. Mezer and Khalil are currently charged with several counts arising from their arrests in Brooklyn, including conspiracy to use a weapon of mass destruction, in violation of 18 U.S.C. 2332a(a)(2). Their trials are scheduled for June 15, 1998, in federal district court in Brooklyn.

To avoid interfering with the criminal case, we did not touch on sensitive issues relating to the pending criminal charges, including Mezer's and Khalil's travels within the United States, information relating to planning of the alleged bombing, possible motives for the bombing, specific facts about the evidence found in the Brooklyn apartment on the day of the arrests, the identity of witnesses to the alleged bombing plot, Mezer's alleged admissions to the police in the aftermath of his arrests, or other evidence that could affect the criminal case. Rather, our review focused on their immigration status and how their immigration cases were handled.

In Chapter II of this report, we address Mezer's case, starting with his background in the Middle East, his entry into Canada in 1993, his receipt of refugee status in Canada, his three illegal entries into the United States from Canada, and the actions taken by U.S. immigration authorities each time. We then describe how and why the INS began formal deportation proceedings against him after his third illegal entry, his detention on a $15,000 bond, the reduction of the bond to $5,000, his release after posting the bond, and his asylum application. We examine why he was not detained after stating in his asylum application that he was suspected of being a member of Hamas, and the circumstances under which Mezer's attorney withdrew his asylum application. We also address the suspicions of the INS officers who first detained Mezer that he might have been involved in alien smuggling.

Chapter III of this report describes Khalil's case. Contrary to the press accounts which suggested that Khalil received a tourist visa to enter the United States, he received a C-1 transit visa from a Department of State Consular Officer in Israel, which allowed him to remain in the United States for up to 29 days while he was in the United States in transit from Israel to Ecuador. We discuss how Khalil obtained this transit visa, the Consular Officer's rationale for granting it, and the Consular Officer's reason for not requiring that he travel to Ecuador through the United States in a transit without visa status. We then discuss what happened when Khalil presented his C-1 transit visa to the INS immigration inspector at JFK Airport in New York in December 1996, how the inspector mistakenly admitted Khalil under a six-month B-2 tourist visa, and how Khalil overstayed even this six-month visa and was illegally in the United States when he was arrested on July 31, 1997, in the Brooklyn apartment.

In the Appendix to the report, we include two brief chronologies of the significant events in Mezer's and Khalil's immigration cases.

II. Gazi Ibrahim Abu Mezer

A. Mezer's background and application for a Canadian visa

Gazi Ibrahim Abu Mezer was born on October 2, 1973, in Hebron, on the West Bank of Israel, where he lived until he moved to Canada in 1993. Mezer claimed Jordanian nationality on his Israeli travel document. As explained below, Mezer alleged in the asylum application that he later filed in the United States that since 1967 Israeli authorities in the "occupied territory" in which he lived committed various illegal actions against him and his family as a result of their Palestinian beliefs. In that asylum application, Mezer claimed that this continual persecution, including at least two unwarranted arrests and detentions in 1990 and 1991, ultimately led him to leave Israel in 1993.2

On May 19, 1993, Mezer applied for a Canadian student visa from the Canadian embassy in Israel. On July 6, 1993, Mezer obtained a travel document from the Israeli government, which allowed Mezer to travel to any country that would grant him a visa and contained a stamp allowing readmission to Israel if he returned by July 5, 1994.

On September 10, 1993, the Canadian Embassy in Israel granted Mezer a one-entry, T-1 visitors/student visa. The visa allowed him to stay in Canada as long as he was enrolled as a student there.

A Canadian official told the OIG that Canadian consulates do not check an applicant's criminal record before issuing a student visa. According to this official, even if the Canadian embassy in Israel had learned that Mezer had been detained in Israel twice for "security" offenses, this would not likely have resulted in denial of a Canadian visa for him. The Canadian official said that any negative implications of these arrests would have been tempered by the fact that Israel had granted Mezer a travel document.

B. Mezer's arrival in Canada and application for a U.S. visa

According to Mezer's Israeli travel document, on September 14, 1993, he arrived at Toronto, Canada, from Israel and was admitted based on his student visa. Mezer told the National Park Service Ranger who later apprehended him attempting to enter the United States that he had attended the Ontario Welcome House in Ontario, Canada in order to learn English. Mezer also stated in his U.S. asylum application that although he went to Canada initially, he "always intended to come to the United States and apply for asylum here."

On September 23, 1993, less than two weeks after entering Canada, Mezer applied at the U.S. Consulate General Office in Toronto for a nonimmigrant visa to the United States. State Department records do not reflect the category of visa for which Mezer applied. William Griffith, the Director of the Support and Liaison Visa Services for the United States Department of State, told the OIG that State Department computer records reflect that Mezer's request for a United States visa was denied as a "routine refusal." The precise reason for this refusal is unknown because hard copy records of visa applications are retained for only one year. According to another State Department official, a "routine refusal" merely indicates that Mezer failed to persuade the Consular Officer that if he was admitted to the United States, he would leave within the required period. The official said the routine refusal could have been based on many factors, including Mezer's age, lack of financial resources, or lack of family ties that would motivate him to return to Canada or Israel.

C. Mezer's application for Canadian refugee status

According to the Canadian Field Operational Support System (FOSS) database, on November 12, 1993, Mezer filed an application with the Canadian Immigration and Refugee Board to be considered a Convention Refugee (CR) in Canada. A Canadian immigration official told us that CR status in Canada is similar to asylum status in the United States. Canadian CR status is granted when an individual has a well-founded fear of persecution in his home country for reasons of race, religion,nationality, membership in a particular social group, or political opinion.3

A CR applicant may remain in Canada while his or her application is pending. The applicant is required to advise Canadian immigration authorities if he leaves Canada before his case is adjudicated, and Canada is not obligated to accept him back into the country. An individual who is granted CR status receives most of the rights of Canadian citizens, other than the right to vote, and may remain in Canada as long as conditions in the country of origin warrant a fear of persecution. According to statistics provided by the Canadian Immigration and Refugee Board, Canada has the highest approval rate for CR/asylum applicants in the world.

The manager of the Enforcement and Intelligence Division of Canadian Citizenship and Immigration in Vancouver, Canada, explained that while CR status allows the alien to reside in Canada as long as he has a legitimate fear of persecution in his country of origin, an alien with "landed immigrant" status in Canada has the right to remain in Canada indefinitely and to apply for Canadian citizenship. An alien with CR status must file an additional application to become a "landed immigrant" in Canada.

While Canadian immigration authorities would not discuss the specifics of Mezer's application for Canadian CR status, Mezer's private attorney told us that his Canadian CR application cited the same facts as his later application for asylum in the United States, which we discuss below. Mezer's attorney stated that in preparing Mezer's U.S. asylum application she repeated many of the assertions contained in the Canadian application.

Canadian records reflect, and Mezer acknowledged in his U.S. asylum application, that in 1994, while his CR application was pending, he was charged with using a stolen credit card in Canada. Mezer stated that he ultimately receiveda one-year unsupervised probation for this offense.4

On June 2, 1994, the Canadian Immigration and Refugee Board held an initial hearing on Mezer's CR application. According to a Canadian official, the purpose of this hearing was to determine whether Mezer met the requirements to make a formal application to be a CR. The Board issued a Notice of Decision on June 28, 1994, stating that it "determines that this claimant is a Convention Refugee." This determination meant that Mezer met the criteria to formally apply for CR status, which, according to FOSS, Mezer did on July 5, 1994.

A Canadian immigration official explained that even a serious criminal offense in Canada would not affect Mezer's ability to receive CR status, which is based on whether the individual faces persecution in his native country. On the other hand, a criminal offense could affect Mezer's ability to eventually become a "landed immigrant," which is a more permanent immigration status than that of a convention refugee.

After Mezer's initial hearing on his CR application, he was charged with another crime. Canadian and INS databases reflect that on May 10, 1995, Mezer received a conditional discharge and one-year probation for a misdemeanor assault in Toronto. No further information about this offense was available.

According to FOSS, as of December 1997, Canada had not taken any further action on Mezer's application to become a CR. Canadian immigration authorities would not provide us with any further information about the status of Mezer's CR application because of privacy concerns.

 


1 Several days later, Israeli officials clarified this initial report. The officials stated that their information indicated that Mezer had a minor arrest record in Israel. The Israeli officials were also quoted as saying that Israel had no information that Mezer had any connection with Hamas or any Islamic organization.

2 Mezer asserted in his April 1997 U.S. asylum application, and Israeli authorities confirmed to the FBI, that Israel detained Mezer for 42 days in 1990 for a "security" charge and for 88 days in 1990 to 1991, based on an "administrative" charge. Both of these detentions were based on Mezer's activities in demonstrations, such as rock throwing, in the aftermath of the Palestinian uprising known as the Intifada. Israeli authorities confirmed to the FBI that Mezer was not arrested for any terrorist activities in Israel. A Canadian official who had served at the Canadian embassy in Israel also told the OIG that in his experience, it is very unlikely that Israel would have issued a travel document to Mezer if he had been apprehended for or suspected of serious crimes in Israel. This official stated that he would not be surprised if Israel issued a travel document to an individual who was jailed for participation in demonstrations, since this was common among young Palestinian men.

3 Evidentiary documents and witnesses as to the specific claims made in individual's application are not required because the Canadians believe it unreasonable to require individuals fleeing oppression to have such evidence. Rather, the main evidence in the Canadian convention refugee process typically consists of the applicant's statements on the record, supplemented by country conditions reports, human rights reports, or Amnesty International reports.

4 Tony Cochlan, the Supervisor of Canadian Immigration at the Canadian Port of Entry in White Rock, British Columbia, stated that Mezer's credit card charge was reflected in FOSS. Cochlan said that FOSS reflected that Mezer had contact with the Royal Canadian Mounted Police (RCMP) in 1994 regarding a stolen credit card charge. FOSS did not contain any further information about this charge, including the disposition of the case. Cochlan told us that FOSS cannot be accessed by U.S. authorities, although Canadian law enforcement and immigration authorities occasionally share information from FOSS with U.S. authorities if specifically asked. However, none of the Border Patrol or INS authorities to whom we spoke was aware of this charge at the time of Mezer's deportation proceedings or was able to verify the information on any computerized records systems available to them.

#####