The day after the deadly San Bernardino attacks in December 2015, Department of Homeland Security components, specifically Immigration and Customs Enforcement (ICE) and US Citizenship and Immigration Services (USCIS), engaged in dispute over ICE’s authority to detain a suspected terrorist. The incident could have led to “disastrous consequences,” according to a recent DHS Office of the Inspector General (OIG) report.
Sen. Ron Johnson (R-Wis.), chairman of the Senate Homeland Security and Governmental Affairs Committee called for the DHS OIG investigation after whistleblowers brought the matter to his attention. The report from DHS OIG confirmed the whistleblower complaints.
“The refusal to allow armed ICE agents into a USCIS facility to detain a suspected terrorist could have had tragic consequences,” said Johnson. “Congress created the DHS to unify and improve coordination among agencies in defending our homeland. What happened in the San Bernardino USCIS field office on December 3 shows that work remains. I hope Secretary Johnson and DHS leadership take this independent watchdog report to heart.”
On December 2, 2015, Sayed Farook and his wife, Tashfeen Malik, carried out an ISIS-inspired terrorist attack in San Bernardino, California that left 14 dead and 22 injured. The following day, Farook’s friend, Enrique Marquez, who police believe was the individual who purchased the two rifles used in the attack, was scheduled to meet with US Citizenship and Immigration Services (USCIS).
Homeland Security Investigations (HSI), the investigative arm of ICE, dispatched a team to apprehend Marquez. DHS OIG’s report revealed they were confined to the lobby for up to 20 minutes, and then waited another 10 minutes in a conference room to meet with the USCIS Field Office Director. The agents told the Field Office Director they were looking for a man associated with the shooting, and that he could be in the building.
However, the Field Office Director told the agents they were not allowed to “arrest, detain, or interview anyone in the building based on USCIS policy.” She later denied saying this, despite several witnesses substantiating HSI’s claim.
HSI also requested the USCIS file on Marquez’s wife, Mariya Chernykh. The Field Office Director initially turned down this request. However, after HSI agents waited outside in the parking lot for over an hour, the USCIS Associate Director of Field Operations in Washington DC determined it was permissible for HSI to view the file. The agents were allowed back into the building to view and hand-copy relevant information from the file.
Marquez and his wife never showed up for their appointment.
Johnson, in a March 16, 2016 letter to Inspector General John Roth, commented that, “If accurate, these accounts reveal an alarming Jack of coordination between DHS components in the wake of the deadliest terrorist attack on American soil since 9/11.”
DHS OIG drew several conclusions for their investigation. First, the Field Office Director does not have authority to determine who can enter the building—that is up to Federal Protective Services, which operates USCIS buildings. Moreover, the HSI agents were rightly concerned that Marquez and his wife posed a threat to the safety on those present in the USCIS building.
“In any event, there is no authority – in law, regulation or policy – to support the Field Office Director’s claim that she has the right to dictate who enters a federal building, particularly federal law enforcement on official business,” the report stated.
“A delay such as the one that occurred here could have disastrous consequences under different circumstances,” the report added.
Second, there is no USCIS policy preventing DHS law enforcement personnel from arresting, detaining, or interviewing anyone in USCIS facilities. Historically, HSI has made arrests in USCIS facilities.
Third, HSI does not need approval to access USCIS immigration files, so the agents should have been permitted to view the file in question.
The investigators did not, however, uncover evidence that anyone in ICE or HSI attempted to retaliate against a whistleblower for contacting the Senate. There was one instance in which an HSI supervisor in the field asked the recipients of an emailed executive summary whether they had forwarded it on to others. However,
DHS OIG determined that this inquiry was to gain an understanding of the situation rather than to identify potential whistleblowers.
Commenting on DHS OIG’s report, Sen. Grassley (R-Iowa) said, “This is a classic example of the left hand not knowing what the right hand is doing in the Obama Administration’s Department of Homeland Security. Agents we depend on to keep us safe, especially hours after a terrorist attack in San Bernardino, were blocked by officials within their own agency from conducting a routine law enforcement action to prevent a potentially dangerous situation at a federal building.”
Grassley continued, “This incident shows the disturbing lack of collaboration between the USCIS and ICE—two agencies tasked with enforcing our immigration laws. Thanks to whistleblowers and DHS OIG’s report, these agencies can better understand their own policies, what went wrong and the need to prevent future breakdowns.”
