Various outlets have reported that an Afghan migrant on the terrorist watchlist due to suspected ties to a foreign terrorist organization was nonetheless released — not once but twice. It just confirms suspicions I raised in December that the Biden administration is failing to use the tools it has to counter the terrorist threat, even while the FBI director warns that his “most immediate concern” is that “individuals or small groups will draw some kind of twisted inspiration from the events in the Middle East to carry out attacks here at home”.
Mohammad Kharwin. The alien is identified as Mohammad Kharwin, a 48-year-old Afghan national apprehended by Border Patrol on March 10, 2023, after he allegedly entered the United States illegally near San Ysidro, Calif.
Apparently, agents had concerns about Kharwin “because one piece of information matched a person on the” terrorist watchlist. “But”, as NBC News explains, “the agents lacked corroborating information, which officials declined to describe, that would confirm Kharwin was the person they suspected”.
Had the Biden administration followed Congress’ directives, which require all illegal entrants to be detained until they are either admitted to the United States or removed, that wouldn’t have been a big deal regardless of whether Kharwin could be dispositively linked to terrorism or not.
Simply put, if DHS followed the detention mandates in section 235(b) of the Immigration and Nationality Act (INA), Kharwin would have been transferred to ICE to be held throughout his removal proceedings, during which additional information about him could have been confirmed, developed, elicited, or otherwise obtained.
It does not seem, however, that detaining illegal Afghan migrants of concern is the current policy of the Biden administration, so instead Kharwin was released on an “alternative to detention” (ATD) without ICE ever being informed.
ICE only found out about Kharwin in February, 11 months after he was released, when the FBI contacted the agency to inform it that Kharwin is a suspected member of Hezb-e-Islami (HIG), which the U.S. Director of National Intelligence describes as a “virulently anti-Western insurgent group”.
ICE agents then dutifully went out and arrested Kharwin in San Antonio, Texas, on February 28. And it is at this point that his story goes from the strange and unusual to the disturbing and concerning.
A month after he was arrested, Kharwin appeared in ICE detention before an immigration judge in Pearsall, Texas. As per NBC News:
When ICE prosecutors appeared in court, they did not share some classified information with the judge that purportedly showed Kharwin's ties to HIG, two U.S. officials said. Prosecutors argued that he should be detained without bond because he was a flight risk, but they did not say he was a national security risk, according to sources familiar with the case.
The judge ordered Kharwin released on bond. [Emphasis added.]
Specifically, the IJ set a $12,000 bond in Kharwin’s case, which I can tell you from my experience as an IJ is a pretty high amount, but somehow Kharwin was able to post it and be released again.
Almost dryly, NBC News continues: “The judge placed no restrictions on his movements inside the U.S. but required him to appear for his next court hearing in a year. ICE has not appealed the judge’s decision, sources familiar with the case said.”
The Continuing Consequences of the October 2004 Ridge Memo. The New York Post explains that “ICE prosecutors failed to inform the [IJ] handling Kharwin’s detention proceedings about his suspected ties to HIG because the information purportedly linking him to the terror group was classified” (emphasis added). Let me explain.
In October 2004, then-DHS Secretary Tom Ridge sent a memo to, among others, the heads of CBP, USCIS, and ICE, captioned “Department of Homeland Security Guidelines for the Use of Classified Information in Immigration Proceedings”.
In that memo, Ridge made clear that: “While the [INA] and regulations allow for the use of classified information, the Secretary of the Department has determined, in his discretion, that the Department will use classified information only as a last resort.”
“Last resort” is a commonly understood term but not otherwise defined in the INA or even federal law generally, so Ridge spelled it out therein:
“Last resort” means that classified information will be introduced in an immigration proceeding only where other options have been examined and weighed, no alternative option exists that will ensure success on the merits, and the case presents a compelling need for use of such information. In cases where the Department is considering the use of classified information, the alien must be investigated for any violation of law, including but not limited to the civil and criminal provisions of the INA. In many instances, the alien may have committed visa fraud, passport fraud, misrepresentation, perjury, identity fraud, and other civil and criminal offenses, which, if pursued, might eliminate the need to rely on classified evidence. Similarly, unclassified derogatory facts that are relevant to the immigration case but are not actionable in a criminal proceeding may exist and may be sufficient to achieve the Department's purpose without the Department resorting to using classified evidence; consequently such unclassified information should also be thoroughly investigated and explored for use in immigration proceedings. [Emphasis added.]
In a December post captioned “What Did DHS Do with the 169 Border Aliens on Terror Watchlist Nabbed in FY 2023? Possibly nothing — the continuing implications of the October 2004 ‘Ridge Memo’”, I laid out the complicated and politically fraught trail that had brought the first secretary of Homeland Security to issue that directive in the first place.
I also asked whether DHS — nearly 20 years after the fact — is still laboring under the nonsensical and dangerous restrictions in that Bush-era directive, particularly given the massive surge in Border Patrol encounters of illegal migrants on the terrorist watchlist in the last three years.
It appears I have my answer.
Still, ICE and the FBI had a month to prepare before Kharwin appeared before an IJ to request bond. From my experience as an INS trial attorney handling national-security cases and acting chief of the agency’s National Security Law Division, that would have been plenty of time to determine — under the terms of the Ridge memo — whether this was a “last resort”, such that the derogatory information against Kharwin could be used, in whole or part.
It's possible ICE did weigh such options and rejected them. Respectfully, if DHS’s current leadership didn’t see fit to detain an Afghan national who somehow managed to travel to northwest Mexico so he could cross the Southwest border illegally, it likely wasn’t going to go to any great pains to detain him thereafter just because the FBI had some derogatory information about him.
“A Rogue’s Gallery of Foreign Terrorist Organizations Call for Attacks Against Americans”. Almost ironically, hours before the Kharwin story broke, FBI Director Christoper Wray appeared before the House Appropriations Committee’s Subcommittee on Commerce, Justice, Science, and Related Agencies to defend the bureau’s annual budget request and ask for additional funding.
Ominously, he explained in his opening statement that:
When I sat here last year, I walked through how we were already in a heightened threat environment. Since then, we’ve seen the threat from foreign terrorists rise to a whole other level after [the Hamas attack on Israel] on October 7th.
...
As I look back over my career in law enforcement, I would be hard-pressed to think of a time where so many threats to our public safety and national security were so elevated all at once. But that is the case as I sit here today.
...
I touched on this earlier, but there was already a heightened risk of violence against the United States before October 7th. Since then, we’ve seen a rogue’s gallery of foreign terrorist organizations call for attacks against Americans and our allies. And given those calls for action, our most immediate concern has been that individuals or small groups will draw some kind of twisted inspiration from the events in the Middle East to carry out attacks here at home.
But now increasingly concerning is the potential for a coordinated attack here in the homeland akin to the ISIS-K attack at the Russia concert hall just a couple weeks ago. [Emphasis added.]
I recently raised similar concerns about the threat posed by ISIS-K and the opportunities the group has to exploit the chaos at the Southwest border, so it’s comforting to know I am in good company.
Wray argued his bureau needs “all the tools, all the people, all the resources required to tackle these threats and to keep Americans safe”. The Kharwin case, though, reveals the administration isn’t using a key tool Congress gave it to prevent terrorist incursions into the United States — immigration detention. I hope DHS wises up before it’s too late — assuming it’s not too late already.