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112th Congress                                            Rept. 112-411
                        HOUSE OF REPRESENTATIVES
 2d Session                                                      Part 1

======================================================================



 
                            SECURE VISAS ACT

                                _______
                                

 March 8, 2012.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

       Mr. Smith of Texas, from the Committee on the Judiciary, 
                        submitted the following

                              R E P O R T

                             together with

                            ADDITIONAL VIEWS

                        [To accompany H.R. 1741]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 1741) to authorize the Secretary of Homeland 
Security and the Secretary of State to refuse or revoke visas 
to aliens if in the security or foreign policy interests of the 
United States, to require the Secretary of Homeland Security to 
review visa applications before adjudication, to provide for 
the immediate dissemination of visa revocation information, and 
for other purposes, having considered the same, reports 
favorably thereon with an amendment and recommends that the 
bill as amended do pass.

                                CONTENTS

                                                                   Page
The Amendment....................................................     2
Purpose and Summary..............................................     3
Background and Need for the Legislation..........................     3
Hearings.........................................................    13
Committee Consideration..........................................    14
Committee Votes..................................................    14
Committee Oversight Findings.....................................    17
New Budget Authority and Tax Expenditures........................    17
Congressional Budget Office Cost Estimate........................    17
Performance Goals and Objectives.................................    20
Advisory on Earmarks.............................................    21
Section-by-Section Analysis......................................    21
Changes in Existing Law Made by the Bill, as Reported............    21
Committee Jurisdiction Letters...................................    26
Additional Views.................................................    28

                             The Amendment

    The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Secure Visas Act''.

SEC. 2. VISA REFUSAL AND REVOCATION.

  (a) Authority of the Secretary of Homeland Security and the Secretary 
of State.--
          (1) In general.--Section 428 of the Homeland Security Act of 
        2002 (6 U.S.C. 236) is amended by striking subsections (b) and 
        (c) and inserting the following:
  ``(b) Authority of the Secretary of Homeland Security.--
          ``(1) In general.--Notwithstanding section 104(a) of the 
        Immigration and Nationality Act (8 U.S.C. 1104(a)) or any other 
        provision of law, and except for the authority of the Secretary 
        of State under subparagraphs (A) and (G) of section 101(a)(15) 
        of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)), 
        the Secretary--
                  ``(A) shall have exclusive authority to issue 
                regulations, establish policy, and administer and 
                enforce the provisions of the Immigration and 
                Nationality Act (8 U.S.C. 1101 et seq.) and all other 
                immigration or nationality laws relating to the 
                functions of consular officers of the United States in 
                connection with the granting and refusal of a visa; and
                  ``(B) may refuse or revoke any visa to any alien or 
                class of aliens if the Secretary, or designee, 
                determines that such refusal or revocation is necessary 
                or advisable in the security interests of the United 
                States.
          ``(2) Effect of revocation.--The revocation of any visa under 
        paragraph (1)(B)--
                  ``(A) shall take effect immediately; and
                  ``(B) shall automatically cancel any other valid visa 
                that is in the alien's possession.
          ``(3) Judicial review.--Notwithstanding any other provision 
        of law, including section 2241 of title 28, United States Code, 
        or any other habeas corpus provision, and sections 1361 and 
        1651 of such title, no court shall have jurisdiction to review 
        a decision by the Secretary of Homeland Security to refuse or 
        revoke a visa, and no court shall have jurisdiction to hear any 
        claim arising from, or any challenge to, such a revocation.
  ``(c) Authority of the Secretary of State.--
          ``(1) In general.--The Secretary of State may direct a 
        consular officer to refuse a visa requested by, or revoke a 
        visa issued to, an alien if the Secretary of State determines 
        such refusal or revocation to be necessary or advisable in the 
        interests of the United States.
          ``(2) Limitation.--No decision by the Secretary of State to 
        approve a visa may override a decision by the Secretary of 
        Homeland Security under subsection (b).''.
          (2) Effective date.--The amendment made by paragraph (1) 
        shall take effect on the date of the enactment of this Act and 
        shall apply to visa refusals and revocations occurring before, 
        on, or after such date.
  (b) Issuance of Visas at Designated Consular Posts and Embassies.--
          (1) In general.--Section 428(i) of the Homeland Security Act 
        of 2002 (6 U.S.C. 236(i)) is amended to read as follows:
  ``(i) Visa Issuance at Designated Consular Posts and Embassies.--
Notwithstanding any other provision of law, except section 207 of the 
Foreign Service Act of 1980 (22 U.S.C. 3927) and the process 
established by the President for determining appropriate staffing at 
diplomatic missions and overseas constituent posts, the Secretary of 
Homeland Security--
          ``(1) shall conduct an on-site review of all visa 
        applications and supporting documentation before adjudication 
        at all visa-issuing posts in Algeria; Canada; Colombia; Egypt; 
        Germany; Hong Kong; India; Indonesia; Iraq; Jerusalem, Israel; 
        Jordan; Kuala Lumpur, Malaysia; Kuwait; Lebanon; Mexico; 
        Morocco; Nigeria; Pakistan; the Philippines; Saudi Arabia; 
        South Africa; Syria; Tel Aviv, Israel; Turkey; United Arab 
        Emirates; the United Kingdom; Venezuela; and Yemen; and
          ``(2) is authorized to assign employees of the Department to 
        each diplomatic and consular post at which visas are issued 
        unless, in the Secretary's sole and unreviewable discretion, 
        the Secretary determines that such an assignment at a 
        particular post would not promote national or homeland 
        security.''.
          (2) Expedited clearance and placement of department of 
        homeland security personnel at overseas embassies and consular 
        posts.--The Secretary of State shall accommodate and ensure--
                  (A) not later than 1 year after the date of the 
                enactment of this Act, that Department of Homeland 
                Security personnel assigned by the Secretary of 
                Homeland Security under section 428(i)(1) of the 
                Homeland Security Act of 2002 have been stationed at 
                post such that the post is fully operational; and
                  (B) not later than 1 year after the date on which the 
                Secretary of Homeland Security designates an additional 
                consular post or embassy for personnel under section 
                428(i)(2) of the Homeland Security Act of 2002 that the 
                Department of Homeland Security personnel assigned to 
                such post or embassy have been stationed at post such 
                that the post is fully operational.
  (c) Visa Revocation.--
          (1) Information.--Section 428 of the Homeland Security Act of 
        2002 (6 U.S.C. 236) is amended by adding at the end the 
        following:
  ``(j) Visa Revocation Information.--If the Secretary of Homeland 
Security or the Secretary of State revokes a visa--
          ``(1) the relevant consular, law enforcement, and terrorist 
        screening databases shall be immediately updated on the date of 
        the revocation; and
          ``(2) look-out notices shall be posted to all Department of 
        Homeland Security port inspectors and Department of State 
        consular officers.''.
          (2) Effect of visa revocation; judicial review of visa 
        revocations.--
                  (A) In general.--Section 221(i) of the Immigration 
                and Nationality Act (8 U.S.C. 1201(i)) is amended by 
                striking the final sentence and inserting the 
                following: ``A revocation under this subsection shall 
                take effect immediately and shall automatically cancel 
                any other valid visa that is in the alien's possession. 
                Notwithstanding any other provision of law, including 
                section 2241 of title 28, United States Code, or any 
                other habeas corpus provision, and sections 1361 and 
                1651 of such title, a revocation under this subsection 
                may not be reviewed by any court, and no court shall 
                have jurisdiction to hear any claim arising from, or 
                any challenge to, such a revocation.''.
                  (B) Effective date.--The amendment made by 
                subparagraph (A) shall take effect on the date of the 
                enactment of this Act and shall apply to revocations 
                under section 221(i) of the Immigration and Nationality 
                Act (8 U.S.C. 1201(i)) occurring before, on, or after 
                such date.

                          Purpose and Summary

    H.R. 1741, the ``Secure Visas Act,'' helps ensure security 
of the visa issuance process through the establishment of Visa 
Security Units (VSUs) at all high risk consular posts and 
ensures that there shall be no judicial review of any visa 
revocation decision in order to safeguard national security.

                Background and Need for the Legislation

                        A. VISA ISSUANCE PROCESS

    The Department of State receives applications for entry 
into the United States by aliens and issues visas for those 
approved to emigrate or visit. Before traveling to the United 
States, a citizen of a foreign country who seeks to enter the 
U.S. generally must first obtain a U.S. visa, which is placed 
in the traveler's passport, a travel document issued by the 
traveler's country of citizenship.\1\ A citizen of a foreign 
country must generally obtain a nonimmigrant visa for a 
temporary stay or an immigrant visa for permanent residence. 
The type of visa needed depends on the purpose of the travel.
---------------------------------------------------------------------------
    \1\Nationals of visa waiver program countries do not need visas for 
visits as tourists for up to 90 days.
---------------------------------------------------------------------------
    Having a U.S. visa allows an alien to travel to a port of 
entry, airport or land border crossing, and request permission 
of a U.S. Customs and Border Protection (CBP) inspector to 
enter the U.S. While having a visa does not guarantee entry to 
the U.S., it does indicate a consular officer at a U.S. Embassy 
or Consulate abroad has determined that an alien is eligible to 
seek entry for a specific purpose. CBP inspectors, guardians of 
the nation's borders, are responsible for the admission into 
the country of travelers to the U.S., for a specified status 
and period of time.

                        B. VISA SECURITY PROGRAM

    The September 11, 2001, hijackers would not have been able 
to carry out attacks in the United States if they had been 
unable to enter the country from the onset. They received valid 
visas to enter the U.S. in order to harm our nation--
demonstrating the relative ease of obtaining a U.S. visa and 
gaining admission to the United States.\2\
---------------------------------------------------------------------------
    \2\See generally, 9/11 and Terrorist Travel, Staff Report on the 
National Commission on Terrorist Attacks upon the United States (2004).
---------------------------------------------------------------------------
    The 19 hijackers applied for 23 visas and obtained 22. They 
began the process of obtaining visas almost two and half years 
before the attack. At the time, consular officers were unaware 
of the potential indications of a security threat posed by 
these visa applicants who were in reality terrorists. Consular 
officers had no information about fraudulent travel stamps 
associated with Al Qaeda and were not trained in terrorist 
travel tactics generally.\3\
---------------------------------------------------------------------------
    \3\Id. at 2.
---------------------------------------------------------------------------
    Most of the operatives selected were Saudis, who had little 
difficulty obtaining visas. The mastermind of the operation, 
Khalid Sheikh Mohammed, used a travel facilitator to acquire a 
visa on July 23, 2001, in Jeddah, Saudi Arabia, using an alias.
    The 9-11 Commission determined that, ``[f]or terrorists, 
travel documents are as important as weapons. Terrorists must 
travel clandestinely to meet, train, plan, case targets, and 
gain access to attack. To them, international travel presents 
great danger, because they must surface to pass through 
regulated channels, present themselves to border security 
officials, or attempt to circumvent inspection points.''\4\
---------------------------------------------------------------------------
    \4\National Commission on Terrorist attacks upon the United States, 
The 9/11 Commission Report, 384 (2004).
---------------------------------------------------------------------------
    Following the 9/11 attacks, Congress gave serious 
consideration to removing the visa issuance function from the 
Department of State (DOS) and placing it under the authority of 
the newly-established Department of Homeland Security (DHS). 
Such an arrangement would have placed this immigration-related 
function in the agency with primary authority over immigration 
matters, and it would have addressed the many serious concerns 
(which pre-dated 9/11) about the State Department's penchant 
for treating the consular visa-issuance function more as a 
public diplomacy and foreign relations tool than as a function 
fundamentally about national security, law enforcement, and 
immigration compliance. As a result of a compromise reached in 
the 2002 Homeland Security Act, the State Department retained 
its consular visa-issuance function, while section 428 of that 
Act gave DHS authority to ``to issue regulations with respect 
to, administer, and enforce the provisions of such Act, and of 
all other immigration and nationality laws, relating to the 
functions of consular officers of the United States in 
connection with the granting or refusal of visas, and shall 
have the authority to refuse visas in accordance with law.''\5\
---------------------------------------------------------------------------
    \5\Sec. 428 of Pub. L. No. 107-296.
---------------------------------------------------------------------------
    Section 428 created the Visa Security Program (VSP), and 
authorized the Secretary of Homeland Security ``to assign 
employees of the Department to each diplomatic and consular 
post at which visas are issued, unless the Secretary determines 
that such an assignment at a particular post would not promote 
homeland security.''\6\
---------------------------------------------------------------------------
    \6\Id.
---------------------------------------------------------------------------
    Whatever the Homeland Security Act provided, in practice 
U.S. Immigration and Customs Enforcement (ICE) must obtain the 
approval not only from DHS headquarters to establish new 
overseas presences, but also from the chief of mission at each 
diplomatic post and from DOS headquarters. One of the major 
obstacles has often been the local embassy leadership, who may 
see an ICE presence as an invasion of the jurisdiction that 
traditionally belonged to Consular Affairs or to DOS's Regional 
Security Officer who is tasked with reviewing visa applications 
and screening applicants to prevent fraud and to avoid issuance 
of visas to criminals or terrorists.
    With an average office size of two employees, VSP units, 
also known as VSUs, screen all visa applicants submitted at the 
Consular Office through DHS databases and conduct targeted 
reviews of those applicants considered high-risk. According to 
information provided by ICE, it costs approximately $2.2 
million to open a new VSP unit. The cost covers two-three 
employees, technology, and vehicles.\7\ No funding was 
requested in the DHS FY 2011, FY 2012 or FY 2013 budgets to 
expand VSP units to additional locations.\8\
---------------------------------------------------------------------------
    \7\Presidential Budget for FY 2012.
    \8\Id.
---------------------------------------------------------------------------
    To date, DHS has established VSP posts at only 19 locations 
with a presence in 15 countries. However, there is a list of 
over 50 designated ``high-risk'' posts. The opposition from DOS 
in expanding VSUs and DHS authority in this area is 
particularly objectionable, because the Homeland Security Act 
does not give DOS any power to veto or resist DHS's choice of 
posts at which VSP officers would ``promote homeland 
security.''\9\
---------------------------------------------------------------------------
    \9\See Section 428 of the Homeland Security Act of 2002, Pub. L. 
No. 107-296.
---------------------------------------------------------------------------
    Opposition from DOS or from parochial interests in 
individual embassies has not been the only obstacle to 
implementation of VSP to the full extent of available 
appropriations. In fact, DHS has left VSU requests pending for 
several months in the past. For instance, a request from ICE in 
September 2008 was sent to the Secretary of Homeland Security 
for approval to create a VSP office in Yemen, but that request 
was not approved by Secretary Napolitano until January 15, 
2010, and finally on February 16, 2010, by the Secretary of 
State. And it was approved only when it came to light that the 
Christmas Day bomber had ties to Yemen.
    Additionally, on February 10, 2010, DOS notified ICE that 
its request for a VSU in Jerusalem was denied due to ``the 
principles of rightsizing,'' and explained that DOS believed 
its personnel onsite could perform the visa-screening 
function.\10\ Congress was notified of this decision on 
February 16, 2010, and 2 days later a revised cable from the 
American Consulate in Jerusalem was delivered reversing the 
decision and approving the conditional establishment of the 
VSU.
---------------------------------------------------------------------------
    \10\See American Consulate in Jerusalem unclassified cable to 
Secretary of State, February 10, 2010.
---------------------------------------------------------------------------
    The existing memorandum of understanding (MOU) between DOS 
and DHS states that a consular officer will not issue a visa 
over the objection of the VSP unit until the objection has been 
resolved.\11\ Thus, the Secretary of Homeland Security does 
have the authority to prevent a Consular Office from issuing a 
visa if an objection cannot be resolved. According to ICE, the 
Secretary has only used this authority once--in 2005.
---------------------------------------------------------------------------
    \11\See Memorandum of Understanding Among U.S. Immigration and 
Customs Enforcement of the Department of Homeland Security and the 
Bureau of Consular Affairs and Diplomatic Security of the Department of 
State on Roles, Responsibilities, and Collaboration at Visa Security 
Units Abroad (January 11, 2011).
---------------------------------------------------------------------------
    VSPs are currently present and operational in Abu Dhabi, 
Frankfurt, Amman, Cairo, Caracas, Casablanca, Dhahran, Dubai, 
Hong Kong, Islamabad, Jakarta, Jeddah, London, Manila, 
Montreal, Tel Aviv, Jerusalem, Sana'a, and Riyadh. ICE plans to 
expand the program to include two more VSP units by the end of 
2013. One will be located in Kenya and the other one will be in 
Turkey. ICE has informed the Committee that if additional 
funding is identified potential sites for the VSP include, 
Beirut, and Karachi.
    On March 31, 2011, the Government Accountability Office 
(GAO) issued a report on visa security and assessed (1) the 
ability of ICE to measure the program's objectives and 
performance, (2) challenges to VSP operations, and (3) ICE 
efforts to expand the VSP program.\12\
---------------------------------------------------------------------------
    \12\Government Accountability Office: Border Security: DHS's Visa 
Security Program Needs to Improve Performance Evaluation and Better 
Address Visa Risk Worldwide (March 31, 2011).
---------------------------------------------------------------------------
    The GAO concluded that ICE does not accurately track data 
regarding the progress toward its VSP objectives of 1) 
identifying and counteracting potential terrorist threats from 
entering the United States, 2) identifying not-yet-known 
threats and maximizing law enforcement and counterterrorism 
value of the visa process, and 3) establishing performance 
measures intended to assess VSP performance, including 
situations where VSP agents provide information that results in 
a consular officer's decision to deny a visa.\13\
---------------------------------------------------------------------------
    \13\Id. at ``Highlights''.
---------------------------------------------------------------------------
    According to GAO, the source of the problem is ICE's VSP 
tracking system (VSPTS) which is used to collect data on VSP 
activities. GAO maintains that this system does not gather 
comprehensive data on all the performance measures needed to 
evaluate VSP mission objectives. In addition, data collected by 
ICE on VSP activities were limited by inconsistencies. Despite 
upgrades, the system still does not collect data on all the 
performance measures. Therefore, ICE's ability to evaluate the 
performance of the VSP remains limited. ICE also has not 
reported on the progress made toward achieving all VSP 
objectives. Additionally, despite the MOU, confusion remains at 
post between DHS VSP agents and DOS consular officials 
regarding certain roles and operating practices.\14\
---------------------------------------------------------------------------
    \14\Id. at 10-16, 27.
---------------------------------------------------------------------------
    DHS did not concur with the recommendations that the VSP 
collect comprehensive data on all performance measures and 
track the time spent on visa security activities. GAO continues 
to maintain that these recommendations are necessary to 
accurately assess VSP performance. With respect to these non-
concurrences, DHS maintains that the VSP captures all required 
data with respect to its 5 year plan through VSPTS and Treasury 
Enforcement Communication System and that additional tracking 
through VSPTS would be redundant.\15\
---------------------------------------------------------------------------
    \15\Id. at 27 and 34-35.
---------------------------------------------------------------------------
    The GAO report claims some posts experienced difficulties 
because of the limited guidance regarding interactions between 
DOS officials and VSP agents, which has led to tensions between 
the VSP agents and DOS officials. In addition, most VSP posts 
have not developed standard operating procedures for VSP 
operations, leading to inconsistency among posts. Additionally, 
the mandated advising and training of consular officers by VSP 
agents varies from post to post, and at some posts consular 
officers received no training.\16\
---------------------------------------------------------------------------
    \16\Id. at 14-15.
---------------------------------------------------------------------------
    DHS also did not concur in the recommendation requiring 
additional standard operational guidance. DHS maintains that 
additional operational guidance is not necessary as these 
issues are addressed by the MOU. Standard procedures across all 
posts would prove overly restrictive, given that each VSP post 
has an individualized plan for its location.\17\
---------------------------------------------------------------------------
    \17\Id. at 34-35.
---------------------------------------------------------------------------
    According to GAO, in 2007, ICE developed a 5-year expansion 
plan for the VSP, but ICE has not fully followed or updated the 
plan. For instance, ICE did not establish nine posts identified 
for expansion in 2009 and 2010. Furthermore, the expansion plan 
states that risk analysis is the primary input to VSP site 
selection, and ICE, with input from DOS, ranked visa-issuing 
posts by visa risk, which includes factors such as the 
terrorist threat and vulnerabilities present at each post. 
However, 11 of the top 20 high-risk posts identified in the 
expansion plan are not covered by the VSP. Furthermore, ICE has 
not taken steps to address visa risk in high-risk posts that do 
not have a VSP presence. Although the expansion of the VSP is 
limited by a number of factors, such as budgetary limitations 
or limited embassy space, ICE has not identified possible 
alternatives that would provide the additional security of VSP 
review at those posts that do not have a VSP presence.\18\
---------------------------------------------------------------------------
    \18\Id. at 24-26.
---------------------------------------------------------------------------
    DHS concurred with the recommendations that the VSP provide 
consular officer training and develop a plan to provide more 
VSP coverage at high-risk posts.\19\
---------------------------------------------------------------------------
    \19\Id. at 34-35.
---------------------------------------------------------------------------

                   C. THE CURRENT THREAT ENVIRONMENT

    Then CIA Director Leon Panetta testified before the House 
Permanent Select Committee on Intelligence on Tuesday, February 
2, 2010. According to Director Panetta, of the key threats that 
America faces, the greatest concern was Al Qaeda, and the 
possibility it could again attack the U.S. here at home. Al 
Qaeda members are adapting their methods, making them more 
difficult to detect and posing an even greater threat to the 
U.S. In addition, Al Qaeda is moving to other safe havens, such 
as those found in Yemen and Somalia.
    According to Director Panetta, Al Qaeda is pursuing an 
effort to strike at the United States by deploying individuals 
to this country. The U.S. has had a series of arrests of 
individuals inside the country attempting to carry out such a 
plot, through the use of terrorists with ``clean credentials,'' 
i.e. terrorists who do not have a history of terrorism that has 
come to the intelligence community's attention, and loner-
individuals, who, through self-radicalization, engage in 
attacks by themselves.
Abdul Farouk Abdulmutallab: The Christmas Day Bomber
    On December 25, 2009, 23-year-old Nigerian national Abdul 
Farouk Abdulmutallab attempted to detonate an improvised 
explosive device (IED) he smuggled onboard Northwest Airlines 
Flight 253 from Amsterdam to Detroit. The IED did not explode 
but instead caught fire. Alert passengers and crew immediately 
restrained Abdulmutallab until he was taken into custody by CBP 
officers after an emergency landing at Detroit Metropolitan 
Airport.
    In June 2004, Abdulmutallab applied for a B2 tourist visa 
from Lome', Togo, where he attended boarding school. This 
application was denied because Togo was not Abdulmutallab's 
home country.\20\ In July 2004, he applied for the same type of 
visa, this time from Lagos, Nigeria. That visa was issued for a 
time period of 2 years (standard U.S. visa reciprocity policy 
with Nigeria provides that a tourist visa is valid for 2 
years). Abdulmutallab traveled to the United States on this 
visa, from July 25, 2004, to August 5, 2004. The visa expired 
in July 2006.
---------------------------------------------------------------------------
    \20\Information from DOS.
---------------------------------------------------------------------------
    In June 2008, Abdulmutallab once again applied for a B2 
tourist visa. This time he applied at the embassy in London, 
where he was then attending school. The visa, valid for 2 
years, was issued. He entered the United States from August 1, 
2008, to August 17, 2008, to attend a religious conference in 
Texas. He used this same visa to come to the United States on 
December 25, 2009.\21\
---------------------------------------------------------------------------
    \21\Id.
---------------------------------------------------------------------------
    In May 2009, the UK denied Abdulmutallab's application for 
renewal of his student visa. According the British Home 
Secretary, Alan Johnson, the application was rejected ``after 
officials had determined that the academic course he gave as 
his reason for returning to Britain was fake.''\22\
---------------------------------------------------------------------------
    \22\John F. Burns, Britain Rejected Visa Renewal for Suspect, The 
New York Times, Dec. 28, 2009.
---------------------------------------------------------------------------
    On November 19, 2009, Abdulmutallab's father, Dr. Umaru 
Abdulmutallab, appeared at the U.S. Embassy in Abuja, Nigeria, 
and told officials with the State Department and CIA that his 
son had vanished and expressed concern that he had ``fallen 
under the influence of religious extremists in Yemen.'' 
According to ABC News, the father's visit with the U.S. 
authorities was arranged by Nigerian intelligence officials, 
who the senior Abdulmutallab had contacted after receiving a 
call from his son that made him fear that his son might be 
planning a suicide mission in Yemen.\23\
---------------------------------------------------------------------------
    \23\Dana Hughes & Kirt Radis, `Underwear Bomber's' Alarming Last 
Phone Call, ABC News, December 31, 2009, available at http://
abcnews.go.com/WN/bombers-phone-call-father/story?id=9457361.
---------------------------------------------------------------------------
    On November 20, the embassy sent out a so-called ``Visa 
Viper'' report to U.S. embassies around the world stating that 
Abdulmutallab might be associating with extremists in Yemen. 
The State Department ran a check to see if Abdulmutallab had an 
active U.S. visa, but a misspelling of his name led DOS to 
believe that he did not have a valid visa. Therefore, the 
report did not contain any reference to Abdulmutallab's visa 
status. Nor, according to DOS officials, did the Visa Viper 
report mention that the concern arose from the subject's own 
father or that the father was a credible and high-ranking 
Nigerian official.
    DOS corrected the misspelling of Abdulmutallab's name in 
the Visa Viper report 2 days later in a supplementary notice. 
The CIA station in Nigeria prepared two more robust reports, 
one of that was sent to Langley, while the other remained in 
Nigeria in draft form and was only circulated after the attack. 
The government of Yemen claims the information was not shared 
with Yemeni officials.
    The State Department's Visa Viper report was received in 
Washington and entered into the Terrorist Identities Datamart 
Environment (TIDE), a large database administered by the 
National Counterterrorism Center which reportedly contains 
550,000 names of people with suspected ties to terrorist 
organizations or activities. The TIDE database constitutes the 
lowest level (and the broadest) of the government's data 
sources on potential terrorists, and reportedly includes many 
duplicate records and ``false positives'' due to misspelled or 
alternate names. Ultimately, DOS never revoked his visa.
    Following the Christmas Day bombing attempt by 
Abdulmutallab, it was learned that he had ties to Al Qaeda and 
had received training and support for his botched terrorist 
attempt in Yemen.

                           D. VISA REVOCATION

    After a visa has been issued, a consular officer has the 
discretionary authority to revoke a visa at any time. In fact, 
in his January 20, 2010, testimony before the Senate Judiciary 
Committee, Department of State Undersecretary for Management 
Patrick Kennedy stated, ``since 2001 we have revoked over 
51,000 visas . . . including over 1,700 for suspected ties to 
terrorism.''
    Under DOS procedures, when derogatory information about an 
individual comes to light after a visa is issued, consideration 
is given to whether it would be prudent to revoke the visa. DOS 
officials sometimes prudentially revoke visas, i.e., they 
revoke a visa as a safety precaution to ensure that all 
relevant or potentially relevant facts about the applicant are 
thoroughly explored. Prudential revocations are precautionary 
actions that can be taken when the alien's admissibility is 
deemed to raise national security concerns. Although DOS has 
previously testified to Congress about this being a ``low 
threshold,'' they have recently indicated they would not 
prudentially revoke a visa for security reasons unless there 
was an ``immediate threat'' or at least more than what 
Abdulmutallab's father provided.\24\
---------------------------------------------------------------------------
    \24\Testimony of Janice L. Jacobs, Deputy Assistant Secretary of 
State for Visa Services, hearing before the Senate Comm. on the 
Judiciary's Subcomm. on Immigration, Border Security and Citizenship, 
Visa Issuance, Information Sharing and Enforcement in a Post-9/11 
Environment: Are We Ready Yet?, July 15, 2003.
---------------------------------------------------------------------------
    While DHS has clear authority over the policies to grant or 
deny visas, from a legal authority perspective the role of DHS 
in the visa revocation process is unclear. As previously 
stated, the law specifically provides that after a visa has 
been issued, a consular officer has the discretionary authority 
to revoke a visa at any time. The statute makes no mention of 
DHS, and there is no explicit grant of authority DHS in section 
428 of the Homeland Security Act to revoke a visa.
    Nonetheless, it could be argued that DHS, through the broad 
language of section 428, is granted the ability to revoke as it 
is a matter ``relating to the functions of consular officers of 
the United States in connection with the granting or refusal of 
visas.''\25\ Furthermore, the MOU between DOS and DHS on the 
implementation of section 428 provides that ``if the Secretary 
of Homeland Security decides to exercise the authority to 
refuse a visa in accordance with law, or to revoke a visa, the 
Secretary of Homeland Security shall request the Secretary of 
State to instruct the relevant consular officer to refuse or 
revoke the visa.''\26\ This language appears to acknowledge the 
authority of the Secretary of Homeland Security to revoke a 
visa; however, it also seems to indicate that the Secretary of 
State has final say over the revocation.
---------------------------------------------------------------------------
    \25\Sec. 428 of Pub. L. No. 107-296.
    \26\Memorandum of Understanding Between the Secretaries of State 
and Homeland Security Concerning Implementation of Section 428 of the 
Homeland Security Act of 2002, Sept. 26, 2003, at 8 (emphasis added).
---------------------------------------------------------------------------
    The MOU also bars the Secretary of Homeland Security from 
delegating the visa refusal or revocation decision outside DHS 
headquarters, effectively making it impossible for the 
Secretary to pass this responsibility to the Assistant 
Secretary for ICE, who has direct authority for the DHS program 
that monitors visa issuance and identifies security or fraud 
threats.

           E. REMOVAL PREDICATED ON VISA REVOCATION DECISIONS

    GAO issued a report in 2003 finding that ``30 individuals 
whose visas were revoked on terrorism grounds entered the 
United States either before or after revocation and may still 
remain in the country'' and that ``INS and the FBI were not 
routinely taking actions to investigate, locate, or resolve the 
cases of individuals who remained in the United States after 
their visas were revoked.''\27\ GAO expressed concern that 
``there is heightened risk that suspected terrorists could 
enter the country with revoked visas or be allowed to remain 
after their visas are revoked without undergoing investigation 
or monitoring.''\28\
---------------------------------------------------------------------------
    \27\U.S. General Accounting Office, Border Security: New Policies 
and Procedures Are Needed to Fill Gaps in the Visa Revocation Process 
(GAO-03-798) 4 (2003)(footnotes omitted).
    \28\Id. at 27.
---------------------------------------------------------------------------
    There are two underlying factors which contributed to this 
state of affairs. First, DOS revocation certificates state that 
in the case of aliens present in the United States, revocation 
are not effective until after the aliens' departure from the 
United States.\29\ Second, it is unclear as to whether the fact 
of revocation in and of itself was a grounds for removing an 
alien who had been admitted to the U.S.--``A visa revocation by 
itself [was] not a stated grounds for removal under the 
Immigration and Nationality Act''\30\; INS (the predecessor 
agency to ICE) investigators ``believed that under the INA, the 
visa revocation itself does not affect the alien's legal status 
in the United States.''\31\ The GAO found that ``[the] issue of 
whether a visa revocation, after an alien is admitted on that 
visa, has the effect of rendering the individual out-of-status 
is unresolved legally. . . .''\32\
---------------------------------------------------------------------------
    \29\Id. at 25.
    \30\Id. at 5 (footnote omitted).
    \31\Id. at 25.
    \32\Id.
---------------------------------------------------------------------------
    While the INS could have initiated deportation proceedings 
against an alien on the basis of other grounds of removal--such 
as terrorist activity, this was problematic. The burden of 
proof is on the government in deportation proceedings against 
admitted aliens. Compounding this fact:

        INS officials stated that the State Department provides 
        very little information or evidence relating to the 
        terrorist activities when it sends the revocation 
        notice to INS. Without sufficient evidence linking the 
        alien to any terrorist-related activities, INS cannot 
        institute removal proceedings on the basis of that 
        charge. [E]ven if there is evidence, INS officials 
        said, sometimes the agency that is the source of the 
        information will not authorize the release of that 
        information because it could jeopardize ongoing 
        investigations or reveal sources and methods. . . . INS 
        officials state that sometimes the evidence that is 
        used to support a discretionary revocation from the 
        Secretary of State is not sufficient to support a 
        charge of removing an alien in immigration proceedings 
        before an immigration judge. [State Department 
        officials] said that most of the time, the information 
        on which these revocations is based is classified.

        . . . .

        At some point in the proceedings . . . in establishing 
        that the alien is removable . . . the government could 
        be called on to disclose any classified or law 
        enforcement sensitive information that serves as the 
        basis of the charges against the alien. According to 
        INS attorneys, this can be challenging since many times 
        the law enforcement or intelligence agencies that are 
        the source of the information may not authorize the 
        release of that information because it could jeopardize 
        ongoing investigations or reveal sources and 
        methods.\33\
---------------------------------------------------------------------------
    \33\Id. at 25, 35.

    After the GAO report was issued, DHS and DOS entered into 
an agreement whereby DOS agreed to revoke visas retroactive to 
the time of issuance on a case-by-case basis if requested by 
DHS.\34\ The State Department, however, had concerns regarding 
``the litigation risks involved in removing aliens based on 
visa revocations'', wanting to ``avoid steps that will weaken 
our ability to use revocations flexibly and aggressively to 
protect homeland security'' and to avoid ``a situation in which 
courts start second-guessing our revocation decisions.''\35\
---------------------------------------------------------------------------
    \34\See Hearing before the House Committee on Government Reform's 
Subcommittee on National Security, Emerging Threats, and International 
Relations, 108th Cong. (2004)(statement of Tony Edson, Managing 
Director (Acting), Office of Visa Services, U.S. Department of State).
    \35\Id.
---------------------------------------------------------------------------
    The House of Representatives included in the legislation to 
implement the recommendations of the 9-11 Commission a 
provision explicitly making revocation of a nonimmigrant visa a 
grounds for removal. The only factor an immigration judge could 
consider in a deportation proceeding was whether in fact DOS 
had revoked the visa. In addition, the House provided that 
there would be absolutely no means of judicial review of a visa 
revocation or a deportation action based on the revocation.\36\ 
This Committee stated that ``[t]he section will prevent an 
alien whose visa has been revoked [from being able] to 
challenge the underlying revocation in court, where the 
government might again be placed in a position of either 
exposing its sources or permitting potentially dangerous alien 
to remain in the U.S.''\37\
---------------------------------------------------------------------------
    \36\See section 3009 of S. 2845 (engrossed amendment as agreed to 
by House)(108th Congress, 2004).
    \37\H.R. Rept. No. 108-724, part V, at 189 (2004).
---------------------------------------------------------------------------
    However, in the conference committee, the Senate inserted a 
modification providing that a removal based on visa revocation 
was judicially reviewable if revocation was the sole basis for 
the order of removal.\38\ The Senate language has made the use 
of the visa revocation section problematic. Judicial review 
could force the release to the alien and the public of the 
sensitive information that the revocation ground of removal was 
intended to protect. It could also undermine the consular non-
reviewability doctrine and open the door to judicial second-
guessing of all visa denial decisions.
---------------------------------------------------------------------------
    \38\See section 5304 of Pub. L. No. 108-458.
---------------------------------------------------------------------------
    What are the constitutional issues of visa revocation 
without judicial review of an alien present in the U.S? The INA 
could not be clearer: ``There shall be no means of judicial 
review . . . of a revocation [of a visa or other documentation] 
under this subsection, except in the context of a removal 
proceeding if such revocation provides the sole ground for 
removal under section 1227(a)(1)(B) of this title.''\39\
---------------------------------------------------------------------------
    \39\Section 221(i) of the INA (emphasis added).
---------------------------------------------------------------------------
    The question of whether the Constitution requires judicial 
review turns on whether a visa issuance is discretionary in 
nature. Several circuit courts have ruled that similar to visa 
issuance, visa revocation is a ``discretionary'' decision. 
These circuit courts, such as the Seventh,\40\ Third,\41\ and 
Fifth,\42\ have concluded that since visa revocations are in 
fact a discretionary power held by the Secretary of DHS, that 
the Constitution does not require judicial review.
---------------------------------------------------------------------------
    \40\El-Khader v. Monica, 366 F.3d 562, 568 (7th Cir. 2004).
    \41\Jilin Pharm. USA, Inc. v. Chertoff, 447 F.3d 196, 206 (3d Cir. 
2006).
    \42\Ghanem v. Upchurch, 481 F.3d 222, 224-25 (5th Cir. 2007).
---------------------------------------------------------------------------
    The circuit courts focused on 8 U.S.C. Sec. 1155, which 
provides that ``[t]he Secretary of Homeland Security may, at 
any time,'' revoke the approval of a visa petition ``for what 
he deems to be good and sufficient cause.'' The regulation for 
this section notes that DHS ``may revoke the approval of [a] 
petition upon notice to the petitioner on any ground . . . when 
the necessity for the revocation comes to [its] attention . . 
.''\43\
---------------------------------------------------------------------------
    \43\8 C.F.R. Sec. 205.2(a).
---------------------------------------------------------------------------
    This revocation power is subject to 8 U.S.C. 
Sec. 1252(a)(2)(B), which provides: ``Notwithstanding any other 
provision of law (statutory or nonstatutory), . . . and 
regardless of whether the judgment, decision, or action is made 
in removal proceedings, no court shall have jurisdiction to 
review . . . any other decision or action of the Attorney 
General or the Secretary of Homeland Security the authority for 
which is specified under this title [8 USCS Sec. Sec. 1151 et 
seq.] to be in the discretion of the Attorney General or the 
Secretary of Homeland Security. . . .'' This provision was 
added to the INA by the Illegal Immigration Reform and 
Immigrant Responsibility Act of 1996,\44\ one purpose of which 
was ``to improve deterrence of illegal immigration to the 
United States . . . by reforming exclusion and deportation law 
and procedures.''\45\
---------------------------------------------------------------------------
    \44\Section 306 of division C of title III of Pub. L. No. 104-208.
    \45\H.R. Rep. No. 104-828, at 1 (1996).
---------------------------------------------------------------------------
    A district court in the Seventh Circuit held that visa 
revocations were discretionary, stating ``[t]his language 
plainly signifies a discretionary decision.''\46\ Furthermore, 
the court found that ``the appellant has failed to present us 
any case law from any Circuit, nor have we located any, that 
has expressly ruled on whether a [visa revocation] is 
discretionary. Nevertheless, in our opinion, the discretionary 
nature of the decision is apparent from the plain language of 
the statute.   Initially, we cannot help but repeat the actual 
words employed by the statute, which involve the permissive 
`may' and a temporal reference to `at any time'. This language 
plainly signifies a discretionary decision.''\47\ Ultimately, 
the court held ``[t]he statute\48\ strips a court's 
jurisdiction to review `any other decision or action . . . 
where the Attorney General [now the Secretary] has 
discretionary authority.'\49\ The meaning of the statute is 
clear and unambiguous--it precludes the courts from reviewing 
any discretionary decision of the INS.\50\ The alien in this 
case was present in the U.S.''\51\
---------------------------------------------------------------------------
    \46\El-Khader v. Perryman, 264 F. Supp. 2d 645, 647 (N.D. Ill. 
2003).
    \47\Id.
    \48\8 U.S.C. Sec. 1252(a)(2)(B)(ii).
    \49\El-Khader at 50 (citing CDI Information Services, Inc. v. Reno, 
278 F.3d 616, 619 (6th Cir. 2002).
    \50\Id.
    \51\Id.
---------------------------------------------------------------------------
    A key question under the Fifth Amendment's Due Process 
Clause as to the constitutional necessity of judicial review is 
whether there is any constitutionally protected property 
interest in a visa. While the better argument is that a visa 
issued by the government is not an inherent property right of 
visa holders,\52\ the Supreme Court has not considered whether 
a property interest exists in visa petitions, visa approvals 
or, for that matter, what due process requirements would flow 
from such an interest.
---------------------------------------------------------------------------
    \52\DHS Brief in ANA Int'l, Inc. v. Way, 393 F.3d 886, 894 (9th 
Cir. 2004). The Ninth Circuit ruled otherwise. ANA Int'l, Inc. v. Way, 
393 F.3d at 894.

---------------------------------------------------------------------------

                                Hearings

    The Committee on the Judiciary's Subcommittee on 
Immigration Policy and Enforcement held a hearing on H.R. 1741, 
the ``Secure Visas Act,'' on May 11, 2011. Testimony was 
received from Gary Cote, Acting Deputy Assistant Director, 
International Affairs of Immigration and Customs Enforcement at 
the Department of Homeland Security; David Donahue, Deputy 
Assistant Secretary for Visa Services, Bureau of Consular 
Affairs, U.S. Department of State; Janice Kephart, Director of 
National Security Policy, Center for Immigration Studies; and 
Edward Alden, Bernard L. Schwartz Senior Fellow, Council on 
Foreign Relations.

                        Committee Consideration

    On June 23, 2011, the Committee met in open session and 
ordered the bill H.R. 1741 favorably reported with amendments, 
by a rollcall vote of 17 to 11, a quorum being present.

                            Committee Votes

    In compliance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, the Committee advises that the 
following rollcall votes occurred during the Committee's 
consideration of H.R. 1741.

    1. The first rollcall vote was on amendment #4 offered by 
Ms. Jackson Lee, which was defeated 11 to 17. The amendment 
requires a GAO study regarding the cost effectiveness of VSUs 
and provided that the bill would not go into effect until the 
GAO study was complete.

                                                 ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman.............................................                              X
Mr. Sensenbrenner, Jr...........................................                              X
Mr. Coble.......................................................                              X
Mr. Gallegly....................................................                              X
Mr. Goodlatte...................................................                              X
Mr. Lungren.....................................................
Mr. Chabot......................................................                              X
Mr. Issa........................................................                              X
Mr. Pence.......................................................
Mr. Forbes......................................................
Mr. King........................................................                              X
Mr. Franks......................................................                              X
Mr. Gohmert.....................................................
Mr. Jordan......................................................                              X
Mr. Poe.........................................................                              X
Mr. Chaffetz....................................................
Mr. Griffin.....................................................                              X
Mr. Marino......................................................                              X
Mr. Gowdy.......................................................                              X
Mr. Ross........................................................                              X
Ms. Adams.......................................................                              X
Mr. Quayle......................................................                              X
Mr. Conyers, Jr., Ranking Member................................              X
Mr. Berman......................................................
Mr. Nadler......................................................              X
Mr. Scott.......................................................              X
Mr. Watt........................................................              X
Ms. Lofgren.....................................................              X
Ms. Jackson Lee.................................................              X
Ms. Waters......................................................              X
Mr. Cohen.......................................................              X
Mr. Johnson.....................................................              X
Mr. Pierluisi...................................................
Mr. Quigley.....................................................              X
Ms. Chu.........................................................
Mr. Deutch......................................................              X
Ms. Sanchez.....................................................
Ms. Wasserman Schultz...........................................
                                                                 -----------------------------------------------
    Total.......................................................             11              17
----------------------------------------------------------------------------------------------------------------


    2. The second rollcall vote was on amendment #3 offered by 
Mr. Deutch and Ms. Waters, which was defeated 10 to 15. This 
amendment sought to strike the provisions in the bill 
restricting judicial review for individuals who are placed in 
removal proceedings.

                                                 ROLLCALL NO. 2
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman.............................................                              X
Mr. Sensenbrenner, Jr...........................................                              X
Mr. Coble.......................................................                              X
Mr. Gallegly....................................................                              X
Mr. Goodlatte...................................................                              X
Mr. Lungren.....................................................
Mr. Chabot......................................................
Mr. Issa........................................................
Mr. Pence.......................................................
Mr. Forbes......................................................                              X
Mr. King........................................................                              X
Mr. Franks......................................................                              X
Mr. Gohmert.....................................................
Mr. Jordan......................................................                              X
Mr. Poe.........................................................
Mr. Chaffetz....................................................
Mr. Griffin.....................................................                              X
Mr. Marino......................................................                              X
Mr. Gowdy.......................................................                              X
Mr. Ross........................................................                              X
Ms. Adams.......................................................                              X
Mr. Quayle......................................................                              X
Mr. Conyers, Jr., Ranking Member................................              X
Mr. Berman......................................................
Mr. Nadler......................................................
Mr. Scott.......................................................              X
Mr. Watt........................................................              X
Ms. Lofgren.....................................................              X
Ms. Jackson Lee.................................................              X
Ms. Waters......................................................              X
Mr. Cohen.......................................................              X
Mr. Johnson.....................................................
Mr. Pierluisi...................................................              X
Mr. Quigley.....................................................              X
Ms. Chu.........................................................
Mr. Deutch......................................................              X
Ms. Sanchez.....................................................
Ms. Wasserman Schultz...........................................
                                                                 -----------------------------------------------
    Total.......................................................             10              15
----------------------------------------------------------------------------------------------------------------


    3. The final rollcall vote was on a motion to report the 
bill favorably to the House (approved 17-11).

                                                 ROLLCALL NO. 3
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman.............................................              X
Mr. Sensenbrenner, Jr...........................................              X
Mr. Coble.......................................................              X
Mr. Gallegly....................................................              X
Mr. Goodlatte...................................................              X
Mr. Lungren.....................................................
Mr. Chabot......................................................              X
Mr. Issa........................................................
Mr. Pence.......................................................
Mr. Forbes......................................................              X
Mr. King........................................................              X
Mr. Franks......................................................              X
Mr. Gohmert.....................................................
Mr. Jordan......................................................              X
Mr. Poe.........................................................              X
Mr. Chaffetz....................................................
Mr. Griffin.....................................................              X
Mr. Marino......................................................              X
Mr. Gowdy.......................................................              X
Mr. Ross........................................................              X
Ms. Adams.......................................................              X
Mr. Quayle......................................................              X
Mr. Conyers, Jr., Ranking Member................................                              X
Mr. Berman......................................................
Mr. Nadler......................................................
Mr. Scott.......................................................                              X
Mr. Watt........................................................                              X
Ms. Lofgren.....................................................                              X
Ms. Jackson Lee.................................................                              X
Ms. Waters......................................................                              X
Mr. Cohen.......................................................                              X
Mr. Johnson.....................................................
Mr. Pierluisi...................................................                              X
Mr. Quigley.....................................................                              X
Ms. Chu.........................................................                              X
Mr. Deutch......................................................                              X
Ms. Sanchez.....................................................
Ms. Wasserman Schultz...........................................
                                                                 -----------------------------------------------
    Total.......................................................             17              11
----------------------------------------------------------------------------------------------------------------

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee advises that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of rule XIII of the Rules of the House of 
Representatives is inapplicable because this legislation does 
not provide new budgetary authority or increased tax 
expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of rule XIII of the Rules 
of the House of Representatives, the Committee sets forth, with 
respect to the bill, H.R. 1741, the following estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974.

                                     U.S. Congress,
                               Congressional Budget Office,
                                Washington, DC, September 13, 2011.
Hon. Lamar Smith, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed revised cost estimate for H.R. 1741, the 
Secure Visas Act, which supersedes the estimate transmitted to 
you on September 1, 2011.
    This revised estimate explains that H.R. 1741 contains a 
private-sector mandate as defined in the Unfunded Mandates 
Reform Act. The estimated Federal cost to implement the 
legislation is unchanged and remains the same as we reported in 
the cost estimate transmitted on September 1, 2011.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Mark 
Grabowicz, who can be reached at 226-2860.
            Sincerely,
                                      Douglas W. Elmendorf,
                                                  Director.

Enclosure

cc:
        Honorable John Conyers, Jr.
        Ranking Member




                      H.R. 1741--Secure Visas Act

    As ordered reported by the House Committee on the Judiciary on 
                             June 23, 2011




                                SUMMARY

    H.R. 1741 would direct the Department of Homeland Security 
(DHS) to review visa applications at all U.S. consular posts 
that issue visas in 27 selected countries. The bill also would 
shift some of the current authority for issuing visas from the 
Department of State to DHS. CBO estimates that implementing 
H.R. 1741 would cost $382 million over the 2012-2016 period, 
assuming appropriation of the necessary amounts.
    Pay-as-you-go procedures do not apply to this legislation 
because it would not affect direct spending or revenues.
    H.R. 1741 contains no intergovernmental mandates as defined 
in the Unfunded Mandates Reform Act (UMRA) and would not affect 
the budgets of State, local, or tribal governments.
    H.R. 1741 would impose a private-sector mandate as defined 
in UMRA by eliminating a right of action for foreign-born 
individuals in the United States. CBO estimates that the cost 
of complying with the mandate would fall below the annual 
threshold established in UMRA for private-sector mandates ($142 
million in 2011, adjusted annually for inflation).

                ESTIMATED COST TO THE FEDERAL GOVERNMENT

    The estimated budgetary impact of H.R. 1741 is shown in the 
following table. The costs of this legislation fall within 
budget function 750 (administration of justice).

                                     By Fiscal Year, in Millions of Dollars
----------------------------------------------------------------------------------------------------------------
                                                                     2012   2013   2014   2015   2016  2012-2016
----------------------------------------------------------------------------------------------------------------

CHANGES IN SPENDING SUBJECT TO APPROPRIATION

Costs for Additional DHS Personnel
  Estimated Authorization Level                                        32     65     67     69     71       304
  Estimated Outlays                                                    29     62     67     69     71       298

Support Costs
  Estimated Authorization Level                                        37     12     12     12     13        86
  Estimated Outlays                                                    33     14     12     12     13        84

  Total Costs
    Estimated Authorization Level                                      69     77     79     81     84       390
    Estimated Outlays                                                  62     76     79     81     84       382
----------------------------------------------------------------------------------------------------------------
Note: DHS = Department of Homeland Security.


                           BASIS OF ESTIMATE

    For this estimate, CBO assumes that the bill will be 
enacted near the end of fiscal year 2011. We assume that the 
necessary amounts will be appropriated near the start of each 
fiscal year and that spending will follow historical patterns 
for similar activities.
Costs for Additional DHS Personnel
    H.R. 1741 would direct DHS to review visa applications at 
all U.S. consular posts that issue visas in 27 selected 
countries, including Algeria, Canada, Egypt, Pakistan, Turkey, 
and the United Kingdom. According to Immigration and Customs 
Enforcement (ICE)--an agency within DHS--there are currently 
ICE agents in 19 overseas posts in those countries who review 
visa applications. ICE expects that implementing H.R. 1741 
would require agents to be stationed in 40 additional posts in 
the affected countries.
    ICE anticipates that a total of 117 agents (about three for 
each location) would need to be hired to staff the 40 
additional posts. Based on the costs of similar overseas 
personnel, CBO estimates that each agent, on average, would 
cost about $550,000 annually, including salary and benefits, 
enhanced pay for overseas law enforcement personnel, security 
measures, housing and other expenses for accompanying family 
members, and necessary support staff. Once fully phased in, CBO 
estimates that the total costs of new employees would reach $65 
million annually. For this estimate, we assume that the new 
positions would be fully staffed by fiscal year 2013 and that 
costs would be adjusted for anticipated inflation.
Support Costs
    Based on information from ICE, CBO estimates that there 
would be start-up costs in 2012 of about $900,000 per post, on 
average, mostly to purchase and implement security measures and 
to install computer systems. Beginning in 2013, we estimate 
that there would be recurring support costs of about $300,000 
annually per office, on average, including information 
technology expenses and payments for staff and assistance 
provided by the host country. CBO estimates that total support 
costs would be $37 million in 2012 and $12 million annually 
thereafter.

                     PAY-AS-YOU-GO CONSIDERATIONS:

    None.

        ESTIMATED IMPACT ON STATE, LOCAL, AND TRIBAL GOVERNMENTS

    H.R. 1741 contains no intergovernmental mandates as defined 
in UMRA and would not affect the budgets of State, local, or 
tribal governments.

                 ESTIMATED IMPACT ON THE PRIVATE SECTOR

    H.R. 1741 would impose a private-sector mandate as defined 
in UMRA by prohibiting foreign-born individuals in the United 
States from seeking judicial review if their visa is revoked. 
The prohibition would impose a mandate by eliminating a right 
of action for individuals in the private sector. According to 
the Department of Homeland Security and the Department of 
State, few, if any, foreign-born individuals seek judicial 
review or other claims involving revocation of their visas 
under current law. Therefore, CBO estimates that the cost of 
complying with the mandate would fall below the annual 
threshold established in UMRA for private-sector mandates ($142 
million in 2011, adjusted annually for inflation).

                         PREVIOUS CBO ESTIMATE

    This revised cost estimate supersedes an estimate for H.R. 
1741 that was transmitted on September 1, 2011. The previous 
estimate incorrectly reported that the legislation contains no 
private-sector mandates as defined in UMRA. The revised 
estimate corrects that error. The estimated Federal cost of 
implementing the legislation is unchanged from the previous 
estimate.

                         ESTIMATE PREPARED BY:

Federal Costs: Mark Grabowicz
Impact on State, Local, and Tribal Governments: Melissa Merrell
Impact on the Private Sector: Paige Piper/Bach

                         ESTIMATE APPROVED BY:

Theresa Gullo
Deputy Assistant Director for Budget Analysis

                    Performance Goals and Objectives

    The Committee states that pursuant to clause 3(c)(4) of 
rule XIII of the Rules of the House of Representatives, H.R. 
1741, the ``Secure Visas Act'', helps ensure security of the 
visa issuance process. Through the establishment of VSUs at all 
high risk consular posts and ensures that there shall be no 
judicial review of any visa revocation decision in order to 
safeguard national security.

                          Advisory on Earmarks

    In accordance with clause 9 of rule XXI of the Rules of the 
House of Representatives, H.R. 1741 does not contain any 
congressional earmarks, limited tax benefits, or limited tariff 
benefits as defined in clause 9(e), 9(f), or 9(g) of Rule XXI.

                      Section-by-Section Analysis

    Sec. 1. Short title. Section 1 sets forth the short title 
of the bill as the ``Secure Visas Act''.
    Sec. 2(a): Authority of Secretary of State and Secretary of 
Homeland Security. This subsection clarifies that the Secretary 
of DHS has the explicit power to grant, refuse or revoke an 
alien's visa if the Secretary ``determines that such refusal or 
revocation is necessary or advisable in the security interests 
of the United States.''
    Subsection (a) provides that such a revocation take effect 
immediately and shall automatically cancel any other valid 
visas held by the alien.
    Subsection (a) prohibits all judicial review of the DHS 
Secretary's refusal or revocation of a visa.
    Subsection (a) also states that the Secretary of State may 
not override the visa refusal or revocation decision by the 
Secretary of DHS. The State Department maintains it independent 
ability to refuse or revoke a visa.
    Sec. 2(b): Issuance of Visas at Designated posts and U.S. 
Embassies. This subsection requires that DHS create and/or 
maintain VSUs at the nineteen consular posts that already have 
VSUs as well at the five additional posts that DHS has 
requested.
    Subsection (b) retains authority of DHS's Secretary to 
place VSUs at additional consular posts which the Secretary 
shall do unless it is determined that such an assignment would 
not promote national or homeland security.
    Subsection (b) also requires placement, staffing, and 
operation of VSUs as provided in this subsection, no later than 
1 year after the date of enactment.
    Sec. 2(c) Visa Revocation. This subsection requires that 
when a visa is revoked by the Secretary of DHS or DOS that all 
appropriate consular, law enforcement and terrorist screening 
databases be immediately updated as to the revocation and also 
that DOS lookout notices be posted to all DHS port inspectors 
and DOS consular officers.
    Subsection (c) precludes judicial review (including section 
2241 of title 28) of all visa revocation decisions made by the 
government, including revocations providing the sole ground for 
removal of aliens present in the U.S.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italics, existing law in which no change 
is proposed is shown in roman):

                     HOMELAND SECURITY ACT OF 2002



           *       *       *       *       *       *       *
TITLE IV--DIRECTORATE OF BORDER AND TRANSPORTATION SECURITY

           *       *       *       *       *       *       *


Subtitle C--Miscellaneous Provisions

           *       *       *       *       *       *       *


SEC. 428. VISA ISSUANCE.

    (a) * * *
  [(b) In General.--Notwithstanding section 104(a) of the 
Immigration and Nationality Act (8 U.S.C. 1104(a)) or any other 
provision of law, and except as provided in subsection (c) of 
this section, the Secretary--
          [(1) shall be vested exclusively with all authorities 
        to issue regulations with respect to, administer, and 
        enforce the provisions of such Act, and of all other 
        immigration and nationality laws, relating to the 
        functions of consular officers of the United States in 
        connection with the granting or refusal of visas, and 
        shall have the authority to refuse visas in accordance 
        with law and to develop programs of homeland security 
        training for consular officers (in addition to consular 
        training provided by the Secretary of State), which 
        authorities shall be exercised through the Secretary of 
        State, except that the Secretary shall not have 
        authority to alter or reverse the decision of a 
        consular officer to refuse a visa to an alien; and
          [(2) shall have authority to confer or impose upon 
        any officer or employee of the United States, with the 
        consent of the head of the executive agency under whose 
        jurisdiction such officer or employee is serving, any 
        of the functions specified in paragraph (1).
  [(c) Authority of the Secretary of State.--
          [(1) In general.--Notwithstanding subsection (b), the 
        Secretary of State may direct a consular officer to 
        refuse a visa to an alien if the Secretary of State 
        deems such refusal necessary or advisable in the 
        foreign policy or security interests of the United 
        States.
          [(2) Construction regarding authority.--Nothing in 
        this section, consistent with the Secretary of Homeland 
        Security's authority to refuse visas in accordance with 
        law, shall be construed as affecting the authorities of 
        the Secretary of State under the following provisions 
        of law:
                  [(A) Section 101(a)(15)(A) of the Immigration 
                and Nationality Act (8 U.S.C. 1101(a)(15)(A)).
                  [(B) Section 204(d)(2) of the Immigration and 
                Nationality Act (8 U.S.C. 1154) (as it will 
                take effect upon the entry into force of the 
                Convention on Protection of Children and 
                Cooperation in Respect to Inter-Country 
                adoption).
                  [(C) Section 212(a)(3)(B)(i)(IV)(bb) of the 
                Immigration and Nationality Act (8 U.S.C. 
                1182(a)(3)(B)(i)(IV)(bb)).
                  [(D) Section 212(a)(3)(B)(i)(VI) of the 
                Immigration and Nationality Act (8 U.S.C. 
                1182(a)(3)(B)(i)(VI)).
                  [(E) Section 212(a)(3)(B)(vi)(II) of the 
                Immigration and Nationality Act (8 U.S.C. 
                1182(a)(3)(B)(vi)(II)).
                  [(F) Section 212(a)(3)(C) of the Immigration 
                and Nationality Act (8 U.S.C. 1182(a)(3)(C)).
                  [(G) Section 212(a)(10)(C) of the Immigration 
                and Nationality Act (8 U.S.C. 1182(a)(10)(C)).
                  [(H) Section 212(f) of the Immigration and 
                Nationality Act (8 U.S.C. 1182(f)).
                  [(I) Section 219(a) of the Immigration and 
                Nationality Act (8 U.S.C. 1189(a)).
                  [(J) Section 237(a)(4)(C) of the Immigration 
                and Nationality Act (8 U.S.C. 1227(a)(4)(C)).
                  [(K) Section 401 of the Cuban Liberty and 
                Democratic Solidarity (LIBERTAD) Act of 1996 
                (22 U.S.C. 6034; Public Law 104-114).
                  [(L) Section 613 of the Departments of 
                Commerce, Justice, and State, the Judiciary and 
                Related Agencies Appropriations Act, 1999 (as 
                contained in section 101(b) of division A of 
                Public Law 105-277) (Omnibus Consolidated and 
                Emergency Supplemental Appropriations Act, 
                1999); 112 Stat. 2681; H.R. 4328 (originally 
                H.R. 4276) as amended by section 617 of Public 
                Law 106-553.
                  [(M) Section 103(f) of the Chemical Weapon 
                Convention Implementation Act of 1998 (112 
                Stat. 2681-865).
                  [(N) Section 801 of H.R. 3427, the Admiral 
                James W. Nance and Meg Donovan Foreign 
                Relations Authorization Act, Fiscal Years 2000 
                and 2001, as enacted by reference in Public Law 
                106-113.
                  [(O) Section 568 of the Foreign Operations, 
                Export Financing, and Related Programs 
                Appropriations Act, 2002 (Public Law 107-115).
                  [(P) Section 51 of the State Department Basic 
                Authorities Act of 1956 (22 U.S.C. 2723).]
  (b) Authority of the Secretary of Homeland Security.--
          (1) In general.--Notwithstanding section 104(a) of 
        the Immigration and Nationality Act (8 U.S.C. 1104(a)) 
        or any other provision of law, and except for the 
        authority of the Secretary of State under subparagraphs 
        (A) and (G) of section 101(a)(15) of the Immigration 
        and Nationality Act (8 U.S.C. 1101(a)(15)), the 
        Secretary--
                  (A) shall have exclusive authority to issue 
                regulations, establish policy, and administer 
                and enforce the provisions of the Immigration 
                and Nationality Act (8 U.S.C. 1101 et seq.) and 
                all other immigration or nationality laws 
                relating to the functions of consular officers 
                of the United States in connection with the 
                granting and refusal of a visa; and
                  (B) may refuse or revoke any visa to any 
                alien or class of aliens if the Secretary, or 
                designee, determines that such refusal or 
                revocation is necessary or advisable in the 
                security interests of the United States.
          (2) Effect of revocation.--The revocation of any visa 
        under paragraph (1)(B)--
                  (A) shall take effect immediately; and
                  (B) shall automatically cancel any other 
                valid visa that is in the alien's possession.
          (3) Judicial review.--Notwithstanding any other 
        provision of law, including section 2241 of title 28, 
        United States Code, or any other habeas corpus 
        provision, and sections 1361 and 1651 of such title, no 
        court shall have jurisdiction to review a decision by 
        the Secretary of Homeland Security to refuse or revoke 
        a visa, and no court shall have jurisdiction to hear 
        any claim arising from, or any challenge to, such a 
        revocation.
  (c) Authority of the Secretary of State.--
          (1) In general.--The Secretary of State may direct a 
        consular officer to refuse a visa requested by, or 
        revoke a visa issued to, an alien if the Secretary of 
        State determines such refusal or revocation to be 
        necessary or advisable in the interests of the United 
        States.
          (2) Limitation.--No decision by the Secretary of 
        State to approve a visa may override a decision by the 
        Secretary of Homeland Security under subsection (b).

           *       *       *       *       *       *       *

  [(i) Visa Issuance Program for Saudi Arabia.--Notwithstanding 
any other provision of law, after the date of the enactment of 
this Act all third party screening programs in Saudi Arabia 
shall be terminated. On-site personnel of the Department of 
Homeland Security shall review all visa applications prior to 
adjudication.]
  (i) Visa Issuance at Designated Consular Posts and 
Embassies.--Notwithstanding any other provision of law, except 
section 207 of the Foreign Service Act of 1980 (22 U.S.C. 3927) 
and the process established by the President for determining 
appropriate staffing at diplomatic missions and overseas 
constituent posts, the Secretary of Homeland Security--
          (1) shall conduct an on-site review of all visa 
        applications and supporting documentation before 
        adjudication at all visa-issuing posts in Algeria; 
        Canada; Colombia; Egypt; Germany; Hong Kong; India; 
        Indonesia; Iraq; Jerusalem, Israel; Jordan; Kuala 
        Lumpur, Malaysia; Kuwait; Lebanon; Mexico; Morocco; 
        Nigeria; Pakistan; the Philippines; Saudi Arabia; South 
        Africa; Syria; Tel Aviv, Israel; Turkey; United Arab 
        Emirates; the United Kingdom; Venezuela; and Yemen; and
          (2) is authorized to assign employees of the 
        Department to each diplomatic and consular post at 
        which visas are issued unless, in the Secretary's sole 
        and unreviewable discretion, the Secretary determines 
        that such an assignment at a particular post would not 
        promote national or homeland security.
  (j) Visa Revocation Information.--If the Secretary of 
Homeland Security or the Secretary of State revokes a visa--
          (1) the relevant consular, law enforcement, and 
        terrorist screening databases shall be immediately 
        updated on the date of the revocation; and
          (2) look-out notices shall be posted to all 
        Department of Homeland Security port inspectors and 
        Department of State consular officers.

           *       *       *       *       *       *       *

                              ----------                              


                    IMMIGRATION AND NATIONALITY ACT



           *       *       *       *       *       *       *
TITLE II--IMMIGRATION

           *       *       *       *       *       *       *


                 Chapter 3--Issuance of Entry Documents

                           ISSUANCE OF VISAS

  Sec. 221. (a) * * *

           *       *       *       *       *       *       *

  (i) After the issuance of a visa or other documentation to 
any alien, the consular officer or the Secretary of State may 
at any time, in his discretion, revoke such visa or other 
documentation. Notice of such revocation shall be communicated 
to the Attorney General, and such revocation shall invalidate 
the visa or other documentation from the date of issuance: 
Provided, That carriers or transportation companies, and 
masters, commanding officers, agents, owners, charterers, or 
consignees, shall not be penalized under section 273(b) for 
action taken in reliance on such visas or other documentation, 
unless they received due notice of such revocation prior to the 
alien's embarkation. [There shall be no means of judicial 
review (including review pursuant to section 2241 of title 28, 
United States Code, or any other habeas corpus provision, and 
sections 1361 and 1651 of such title) of a revocation under 
this subsection, except in the context of a removal proceeding 
if such revocation provides the sole ground for removal under 
section 237(a)(1)(B).] A revocation under this subsection shall 
take effect immediately and shall automatically cancel any 
other valid visa that is in the alien's possession. 
Notwithstanding any other provision of law, including section 
2241 of title 28, United States Code, or any other habeas 
corpus provision, and sections 1361 and 1651 of such title, a 
revocation under this subsection may not be reviewed by any 
court, and no court shall have jurisdiction to hear any claim 
arising from, or any challenge to, such a revocation.

           *       *       *       *       *       *       *


                     Committee Jurisdiction Letters






                               __________

                            Additional Views

    The purpose of these views is to memorialize Member 
negotiations that took place after the Committee's mark-up of 
H.R. 1741, the ``Secure Visas Act.'' Following the mark-up, 
Members worked together on revisions to the reported bill to 
address concerns raised by minority Members of the Committee 
regarding judicial review, as well as concerns raised by the 
State Department regarding restrictions inadvertently placed on 
the authority of the Secretary of State to refuse or revoke 
visas. We have since agreed on alternative language that would 
revise the bill as reported in several respects. We have agreed 
that these revisions will be incorporated into any version of 
the Secure Visas Act that is considered on the House floor this 
Congress.
    First, the reported version of the bill requires that the 
revocation of a visa take effect immediately and cancel any 
other valid visa. There is no requirement that the alien 
receive notice of the visa revocation or that the alien be 
given an opportunity to depart the country without prejudice 
upon receiving notice of the revocation. We have agreed to 
revise this language to permit visa revocations to take effect 
immediately and cancel any other valid visa in the alien's 
possession, but it would not require this in every instance. 
The revised language would also require notice to the alien 
and, where the revocation was made by the Secretary of State or 
a consular officer, also to the Secretary of Homeland Security. 
Upon receiving such notice, the alien would have 21 days to 
depart the country voluntarily without prejudice. If the alien 
does not depart within this 21-day period, DHS would be 
authorized to initiate removal proceedings in its sole 
discretion.
    Second, the reported version of the bill eliminates 
judicial review for all visa revocations. The language that we 
have agreed to would preserve the right to such judicial review 
but add special provisions for cases that raise national 
security concerns. Specifically, it would leave unchanged the 
ability to obtain judicial review for any case in which a 
revocation provides the sole ground for removal and removal 
through ordinary proceedings would pose no risk to national 
security. Where such risk exists, however, the Secretary would 
be authorized to utilize the Alien Terrorist Removal Procedures 
established in Title V of the Immigration and Nationality Act. 
Title V describes the process for establishing an Alien 
Terrorist Removal Court and provides procedures for handling 
the introduction of classified information under seal. Title V 
also guarantees the alien certain rights in proceedings, 
including the right to a public hearing, the right to counsel, 
and the right to judicial review.
    Finally, the reported version of the bill limits the 
Secretary of State's visa refusal and revocation authority. 
Current law allows the Secretary of State to refuse a visa 
where it is ``necessary or advisable in the foreign policy or 
security interests of the United States,''\1\ and may revoke a 
visa in her discretion.\2\ The reported version of the bill 
amends this provision to allow the Secretary of State to refuse 
and revoke visas only for foreign policy-related grounds. The 
language that we have agreed to would preserve the Secretary of 
State's existing authority to refuse or revoke visas on both 
foreign policy- and security-related grounds.
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    \1\Homeland Security Act of 2002, Pub. L. No. 107-296, Sec. 428, 
116 Stat. 2135, 2188 (2002).
    \2\Immigration and Nationality Act Sec. 221(I), 8 U.S.C. 
Sec. 1201(i).
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    We have agreed that the above changes will be incorporated 
into any version of the Secure Visas Act that is brought to the 
House floor.

                                   Lamar Smith.
                                   John Conyers, Jr.
                                   Zoe Lofgren.