January 19, 2016

H.R. 4038 – The American SAFE Act

Noteworthy

Background: The House passed the American Security Against Foreign Enemies Act, H.R. 4038, on November 19, 2015, by a vote of 289-137. Forty-seven House Democrats voted for the bill. On January 12, 2016, Leader McConnell filed cloture on the motion to proceed to H.R. 4038. 

Floor Situation: The cloture vote on the motion to proceed will occur on Wednesday, January 20 at 2:30 pm. If cloture is invoked, the post-cloture time will be counted as having started at 6:00 pm Tuesday, January 19.

Executive Summary: The bill would enhance the security screening process for Syrian or Iraqi refugees seeking admission to the U.S. The FBI would be required to take all action necessary to ensure that all Syrian and Iraqi refugees, or refugees who visited Syria or Iraq after March 2011, receive a thorough background investigation. Before Syrian or Iraqi refugees could be admitted to the U.S., the FBI director would need to certify that each such refugee had a background check sufficient to determine that the refugee is not a threat to national security. The secretary of homeland security, the FBI director, and the director of national intelligence would all need to certify that the refugee is not a threat to the security of the United States.

Overview of the Issue

As part of the 2011 Arab Spring, people in Syria demonstrated against the regime of Bashar al-Assad, calling for the recognition of their rights. The regime responded forcibly to those demonstrations. Syria is now a humanitarian catastrophe. It is widely reported that more than 250,000 people have been killed in the Syrian conflict. The United Nations has registered more than 4.6 million Syrian refugees and said there are at least 7.6 million Syrians internally displaced.

For fiscal year 2016, President Obama determined that admission of up to 85,000 refugees from all countries to the United States is justified, compared to 70,000 for fiscal year 2015. He committed to accepting at least 10,000 Syrian refugees in this fiscal year. According to the Congressional Research Service, the United States has admitted 2,070 refugees from Syria since October 1, 2010 to October 31, 2015.

The Department of State administers the Refugee Admissions Program and handles the overseas processing of refugees, while DHS makes the final determination about eligibility for admission. It generally takes 18 to 24 months from the time an applicant is referred to the program to arrival in the United States. The State Department has said “refugees are subject to the highest level of security checks of any category of traveler to the United States.” Every refugee applicant receives an in-person interview by U.S. government personnel with specialized training in eliciting information to test the credibility of the applicant. Those interviewing Iraqi and Syrian applicants receive additional training.

All refugee applicants then go through biographic (i.e. name and date of birth) and biometric (i.e. fingerprints) security checks. This information is vetted against law enforcement and intelligence community databases.

For the biographic information, there can be up to three checks. The first is processed through the Consular Lookout System, also known as the CLASS System, which is coordinated by the FBI. CLASS contains information from a variety of governmental inputs. The second is what is known as an “interagency check” against additional government databases, mainly from the intelligence community. There can be a third check, known as a Security Advisory Opinion, which provides a more rigorous screening process for certain applicants.

As to biometric information, this too has three main partner databases: FBI (NGI), DHS (IDENT), and DOD (ABIS). Vetting biographic information against FBI holdings checks for any criminal information that may be available. DHS holdings include visa applications and other immigration information. Department of Defense biographic holdings include information such as fingerprints taken from conflict areas.

This is the process for every single refugee applicant of any nationality. Syrian refugees are put through additional screening, known as the Syria Enhanced Review. Before they receive an interview, their case files are reviewed at USCIS headquarters and cases meeting certain criteria are sent to the Fraud Detection and National Security Directorate for additional review and research.

Such a vetting process can obviously only evaluate refugees against known information. As the FBI director told Congress, “We can only query against that which we have collected. And so if someone has not made a ripple in the pond in Syria in a way that would get their identity or their interests reflected in our databases, we can query our databases until the cows come home but nothing will show up because we have no record of that person.” Several senior administration officials have acknowledged that insufficient information makes it difficult to determine if a refugee is a threat. DHS Secretary Jeh Johnson stated, “It is true that we are not going to know a whole lot about the Syrians that come forth in this process. ... That is definitely a challenge.”

Considerations on the Bill

Refugees from Syria and Iraq present a real security risk. Earlier this month a refugee from Iraq was arrested in the U.S. for attempting to provide material support to ISIL. A refugee from Syria was arrested in the U.S. for making false statements about his travels to Syria to take up arms with terrorist organizations.

The U.S. has reevaluated and reformed the refugee program in response to new national security threats in the past. After the September 11 attacks, admissions under the refugee program were suspended for more than two months while a review took place. This review resulted in enhanced security procedures being implemented. The moratorium was lifted November 21, 2001, and the program was built back up again, although admissions were slow to return to authorized levels.

Notable Bill Provisions

Section 2

Requires the FBI to take all action necessary to ensure that all Syrian and Iraqi refugees, or refugees who visited Syria or Iraq after March 2011, receive a thorough background investigation. Before a Syrian or Iraqi refugee can be admitted to the U.S., the FBI director must certify that he or she has had a background check sufficient to determine that the refugee is not a threat to national security. The secretary of homeland security, the FBI director, and the director of national intelligence also must certify that the refugee is not a threat to the security of the United States before the refugee may be admitted to the U.S.

Requires annual inspector general review of certification program and monthly reports to Congress.

Administration Position

The White House threatened to veto H.R. 4038 when the House considered it last November.

Cost

A cost estimate is unavailable at this time.

Amendments

The amendment situation is unclear at this time.