Immigration ‘Widow Penalty’ and Immigration Fraud

The Time Magazine article I link here appeared on that magazine’s website on Wednesday of this week. I was quoted in the article but this is not the reason I am writing this commentary, although I was happy to contribute my thoughts and concerns to the article. [ Time ]

The reporter, Tim Padgett quoted me accurately but left out a couple of points I made during my interview with him.

I was asked if the proposed legislation would simply obviate the 2 year conditional resident alien status for widowed spouses of United States citizens an lawful permanent resident aliens or eliminate the 2 year conditional resident alien status for all spouses of citizens and lawful immigrants. This is an important issue because with perhaps as many as 20 million illegal aliens in our country, I could not get upset with providing permanent immigrant status for a few hundred widowed immigrants.

My concern was that so many politicians are obviously seeking all sorts of ways of bending the immigration laws to make it impossible to enforce the immigration statutes from within the United States. I fear that in order to spare the several hundred widowed conditional immigrants the possibility of being removed from the United States that the Congress would enact legislation that would remove the two year conditional immigrant status for all aliens who acquire their lawful immigrant status through marriage to a United States citizen or lawful immigrant.

To provide you with a bit of background about the two year conditional immigrant status, I can tell you that the fraud rate in the entire immigration benefits program is incredibly high. Where marriage fraud rates are concerned, I have read some estimates in GAO reports that claim the fraud rate may be as high as 90%!

Back in 1973 I was assigned to the unit that adjudicates such applications for residency based on marriage. As an examiner, as my title was then defined, (today such employees of USCIS (United States Citizenship and Immigration Services) is referred to as adjudicators, I was easily able to request that if the interview I conducted with the alien and his (her spouse) caused me to believe that they might have not been living together but had entered into an arranged marriage to defraud the immigration bureaucracy, a five year felony, that INS special agents conduct a field investigation.

This program was a pilot program that was designed to not only identify fraud marriages but to also uncover large scale fraud rings and identify attorneys, justices of the peace, clergy, notaries and others who might have been involved in assisting in the arrangement of these fraudulent marriages.

This program had another purpose as well. It was designed to send a clear message that the INS would investigate marriages and punish those who would engage in such criminal conspiracies. This is the concept of deterrence in action.

We were successful on many counts. We identified a number of attorneys who participated in arranging such marriages. (In fact, the very first time I testified in federal court I did so because of a referral I had sent to our investigations division in which an attorney had arranged a number of such fraud marriages.) The case was actually quite bizarre. An attorney accompanied a female United States citizen and her “husband” to the interview I conducted. She was a slender young woman who was dressed in a tiny miniskirt, fishnet stockings, spiked high-heels and a very low cut blouse. Her outfit was offset by a leather “necklace” that looked like a dog collar and she sported a spiked hair-do that had purple highlights!

Her husband was a heavy-set man who was born in China and had jumped ship. He was more than twice as old as his “wife”

She was, by her own description a “New York-Rican.” That is to say that she was born in the Bronx to parents who had come to New York from Puerto Rico before she was born. She spoke fluent English and fluent Spanish.

My procedure was quite simple, I would question the two members of the couple separately, asking them about how they met, where they lived, what they knew about each other’s families and background and what they had done that weekend, etc.

In this case, I ran the young lady through the questioning process and then asked to have her husband come in to ask him the same questions to see if their answers were similar.

In walked her husband. I asked him a couple of questions and he looked as me with a blank stare. His attorney announced that his client could not speak a word of English. I asked him if he could speak Spanish and he told me that he could not. (This is not as strange a question as you might think, the railroads of several countries in Latin America were actually built by Chinese laborers during the 19th century and so there are a number of people living in the United States who are of Asian ancestry but who can speak Spanish fluently.)

I turned to the attorney and asked them if they could not speak the same language how could they communicate?

Without a moment’s hesitation he responded, “They use a picture book!”

I will spare you some of the “off-color” thoughts that this wacky response caused me to speculate about!

I called for a translator and as you might have guessed, not one of their responses to my questions matched.

I referred this case to the Fraud Unit of the Investigations Branch that day. An investigator shortly came to see me and he told me to hold on to my notes because this case was one of many in which young women, virtually all of them Hispanic, were “married” to Chinese seamen who had jumped ship. He further told me that his investigation had uncovered that most of these “wives” were actually lesbian prostitutes! We were never able to find out how the attorney, a Chinese-American guy had managed to find so many of these women to match up with the ship-jumping crewmen!

About two years after I referred this case to the Investigations Branch I was contacted and told to be prepared to testify at the federal courthouse in lower Manhattan. This is known as the Southern District of New York and is considered one of the most important federal districts in the country.

I was in my mid twenties and I had just been appointed as a special agent for the INS when I received this notice.

Because the defendant in this trial was an attorney, the news media descended on the courthouse to cover this story. The defendant’s defense attorney was one of the best known criminal defense attorneys at the time and there were even a couple of sketch artists present in the packed courtroom.

Just about everyone was older than I was and I was, quite frankly, a bit nervous at my first appearance in the witness box in the courtroom. When you are that young, just about everyone looks old. I thought that the judge appeared to be old enough to “cough dust!”

The federal prosecutor who had prepped me for my appearance in court asked me the questions that I had expected him to ask me about the procedures I followed and about my findings that caused me to refer the case to the Investigations Branch. Then it was the Defense attorney’s turn to cross examine me. He got in my face and made accusation afer accusation. He strutted around the courtroom in an impeccably tailored suit and sported a heavy gold wristwatch.

He exuded an air of confidence and questioned me in an accusatory manner. His demeanor and his accusations angered me, but while this was my first time in federal court, having spent many years on the debating teams in high school and college I felt I could handle his “grilling.” I just kept hoping he would somehow make a mistake I could take advantage of.

There is an old expression that says that an attorney in court should never ask a question he does not know the answer to. This is a basic principle. I guess my young age caused him to get a bit too sure of himself. He stopped his questioning and then, after a dramatic pause, he asked me, “Mr. Cutler, what color nightgown was your wife wearing last night?”

This was, in my judgment, one hell of a telegraphed punch. I could immediately see where he was going with that question. He was obviously hoping that I would have a problem recalling the answer to his question, thereby providing him with the opportunity to ask me if that wasn’t the sort of question I asked the aliens and their spouses. He would then have been able to make the point that anyone would be caught off-guard with those sorts of questions.

Actually that would not have been a bad tactic.

I also knew that in life, timing is everything, so, I started out by saying, “That was an excellent question, counselor…” and rather than simply completing the answer to his question and be done with it, I looked him in the eye, and rubbed the bridge of my nose as though I was searching my memory for the answer to his question. I watched him out of the corner of my eye and saw the beginnings of a smile growing broader and broader and then, before he could pounce on me, I responded; – too bad I am not married!”

The federal prosecutor jabbed his fist in the air and the judge and just about everyone in the courtroom burst out laughing!

This is, everyone but the defense attorney.

The judge turned to him and asked, “After that question, counselor, do you have any more?”

A clearly chastened lawyer quietly responded, “No, your honor.”

Add this case to a long list of bizarre stories that I have filed under the category entitled: “You cannot make this stuff up!”

The more interviews we conducted and the more bogus marriages we uncovered, the more we found that the couples were coming to the office prepared to answer the questions that they expected us to ask them. My colleagues and I became more artful in our questioning and we also made certain that we worked closely with the Investigations Branch. The agents would arrest the aliens when it was apparent that they had attempted to secure resident alien status through fraud.

After a while we noticed something interesting, the number of applications for residency began to decline. We were making it clear that we would not only seek to deny applications for residency when fraud was involved, but we would seek the removal of aliens who engaged in fraud. We also identified several United States citizen spouses who had defrauded the welfare system, claiming to be single parents and receiving payments from the City of New York while claiming to the INS that they were married!

Initially, at least, these larcenous women were finding that their welfare checks were being stopped and, in some instances, they were ordered to make restitution!

I recall at least one woman who had gotten prosecuted for using several false identities to collect welfare on several names and married several aliens under various names, charging them roughly a thousand dollars each for her willingness to “marry” them and file applications with the INS on their behalf. She wound up getting prosecuted.

It was in response to this issue of marriage fraud that the 2 year conditional resident alien status was created, to make it more difficult for those who would enter into a marriage fraud.

It is also worth noting that, as I have noted on a number of occasions, terrorists who were identified by the 9/11 Commission used immigration benefit fraud, including marriage fraud as an means of entering our country and as an “embedding” tactic.

Here is the bottom line, the immigration system and our nation’s borders all need to be made secure. What is important to understand is the fact that the immigration benefits program has direct implications for national security. In the aftermath of the terrorist attacks of September 11, 2001, the 9/11 Commission looked at issues within the immigration system that contributed to our nation’s vulnerabilities. It was found that of 94 terrorists who were identified as operating in our country in the decade before the attacks of 9/11, some 59 of them used immigration fraud to enter the United States and/or embed themselves in the United States. An extensive report was prepared by staff members of the 911 Commission that was entitled, “The 9/11 Commission Staff Report on Terrorist Travel.” You can find the entire report online. Here is a passage from that report that I believe is of critical importance:

3.2 Terrorist Travel Tactics by Plot

During the 1990s, al Qaeda was either directly or indirectly involved in a number of terrorist plots in the United States that partially or totally failed. A study of these plots and how those involved in them moved about clearly indicates that foreign terrorist operatives were being planted in the United States and that foreign terrorist operations were being planned against Americans here at home.

The attempted operations were valuable to those carrying them out despite their lack of success: they gave Islamic terrorists critical operational experience in entering and “embedding” in the United States. Although there is evidence that some land and sea border entries without inspection occurred, these conspirators mainly subverted the legal entry system by entering at airports.

In doing so, they relied on a wide variety of fraudulent documents, on aliases, and on government corruption. Because terrorist operations were not suicide missions in the early to mid-1990s, once in the United States terrorists and their supporters tried to get legal immigration status that would permit them to remain here, primarily by committing serial, or repeated, immigration fraud, by claiming political asylum, and by marrying Americans. Many of these tactics would remain largely unchanged and undetected throughout the 1990s and up to the 9/11 attack.

Thus, abuse of the immigration system and a lack of interior immigration enforcement were unwittingly working together to support terrorist activity. It would remain largely unknown, since no agency of the United States government analyzed terrorist travel patterns until after 9/11. This lack of attention meant that critical opportunities to disrupt terrorist travel and, therefore, deadly terrorist operations were missed.

By analyzing information available at the time, we identified numerous entry and embedding tactics associated with these earlier attacks in the United States.

Let me repeat a critical segment of that passage from that report: once in the United States terrorists and their supporters tried to get legal immigration status that would permit them to remain here, primarily by committing serial, or repeated, immigration fraud, by claiming political asylum, and by marrying Americans. Many of these tactics would remain largely unchanged and undetected throughout the 1990s and up to the 9/11 attack. Thus, abuse of the immigration system and a lack of interior immigration enforcement were unwittingly working together to support terrorist activity.

It has been said that you only get one opportunity to make a first impression. For millions of people around the world, the first contact that they have with the United States concerns the way that our nation secures its borders and enforces and administers the immigration laws. For the last several decades our nation has convinced the people of every other country on this planet that they can expect to not only violate our laws and get away with it, but they should expect to violate our laws and be richly rewarded for doing so!

That is one hell of a dangerous message for our nation to be communicating, especially in this day and age!

The problem is that I don’t lack compassion, what I lack is trust in all too many of our elected officials.

In less than two years each and every member of the House of Representatives is up for reelection. In less than two years more than one third of the members of the United States Senate will have to face their constituents. They need to be reminded that they work for us, We the People!

The large scale apathy demonstrated by citizens of this nation has emboldened elected representatives to all but ignore the needs of the average American citizen in a quest for massive campaign funds and the promises of votes to be ostensibly delivered by special interest groups.

There is much that we cannot do but there is one thing that We the People absolutely must do- we must stop sitting on the sidelines! The collective failure of We the People to get involved in make our concerns known to our politicians have nearly made the concerns of the great majority of the citizens of this nation all but irrelevant to the politicians. I implore you to get involved!

If this situation concerns you or especially if it angers you, I ask you to call your Senators and Congressional Representative. This is not only your right – it is your obligation! You need to politely but pointedly, demand to know what they are doing to protect our nation. You need to ask them how they are protecting you and your families. You can also forward this commentary to them.

All I ask is that you make it clear to our politicians that we are not as dumb as they hope we are! We live in a perilous world and in a perilous era. The survival of our nation and the lives of our citizens hang in the balance.

This is neither a Conservative issue, nor is it a Liberal issue- simply stated, this is most certainly an AMERICAN issue! You are either part of the solution or you are a part of the problem! Democracy is not a spectator sport!

Lead, follow or get out of the way!

Michael Cutler, a former Senior INS Investigator, an expert witness in more than a dozen Congressional Hearings is a Fellow at the Center for Immigration Studies and an advisor to the ‘911 Families for a Secure America.’ He writes about the nexus between immigration and national security.