The Biden administration is giving immigration judges and asylum officers more access to classified information to help them determine which migrants might have ties to terrorism or pose a threat to public safety.
The change in policy follows an April 11 NBC News story that revealed an Afghan migrant on the terrorist watchlist was released on bond by an immigration judge in Texas after prosecutors from Immigration and Customs Enforcement withheld information about a possible connection to terrorism because the evidence was classified. Instead of arguing that the man was a national security risk, the prosecutors argued he was a flight risk, two sources familiar with the case said.
Mohammad Kharwin, 48, was caught crossing the border in 2023, but released because the Border Patrol lacked biometric information connecting him to the terror watchlist. He lived in the U.S. for more than a year before he was arrested by ICE in early 2024. When evidence of his potential ties to terror was not presented to the judge, he was freed again as he awaited an asylum hearing scheduled for 2025, U.S. officials said.
Within hours of the NBC News report, the man was arrested again in San Antonio.
The new policy, announced in a May 9 memo from Department of Homeland Security Secretary Alejandro Mayorkas, overrides a 2004 directive that said classified information could only be used in immigration proceedings “as a last resort.”
Under the old policy, asylum officers making an initial determination about an immigrant’s eligibility to pursue an asylum claim and prosecutors presenting a case for deportation in immigration court had to get approval from the DHS secretary to share classified information.
The new memo instructs those employees to go to the head of their individual agency, like ICE or U.S. Citizenship and Immigration Services, for approval.
Two DHS officials told NBC News the administration is determining if it will need to build more space and get security clearances for more employees to store, print and share the classified information.
The officials did not comment on whether the NBC News report had a role in prompting the change in classified information policy, but said global migration trends necessitated a review. The officials said the memo is one of the results of a three-year review of how immigration policies should evolve to mitigate terror threats.
“Over the last five years, we have seen a significant shift in the way transnational criminal organizations are becoming increasingly involved in the movement of people in our hemisphere, most concerningly people from the Eastern hemisphere,” one of the DHS officials said.
“We have seen the terrorist threat landscape become much more complex over the last few years than it was right after 9/11,” the official said.
Kharwin is on the national terrorist watchlist maintained by the FBI, which includes the names of 1.8 million people considered potential security risks. The database indicates he is a member of Hezb-e-Islami, or HIG, a political and paramilitary organization that the U.S. has designated a terrorist organization.
