Biden’s administration is apparently granting immigration judges and asylum officers greater access to classified information to aid in identifying migrants who may have ties to terrorism or pose a threat to public safety, following an April 11 NBC News report that exposed a concerning incident involving an Afghan migrant on the terrorist watchlist who was released on bond by an immigration judge in Texas. Nonetheless, the loophole the suspected terrorist used has still not yet been closed.
In that case, prosecutors from Immigration and Customs Enforcement (ICE) withheld information about the individual’s potential connection to terrorism because the evidence was classified. Instead of arguing that the man posed a national security risk, the prosecutors argued he was a flight risk, according to two sources familiar with the case.
The Afghan migrant, Mohammad Kharwin, 48, had been caught crossing the border in 2023 but was released due to the Border Patrol’s lack of biometric information connecting him to the terror watchlist. After living in the U.S. for over a year, he was arrested by ICE in early 2024. However, 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 (DHS) Secretary Alejandro Mayorkas, overrides a 2004 directive that stated classified information could only be used in immigration proceedings “as a last resort.” Under the old policy, asylum officers making initial determinations about an immigrant’s eligibility for asylum and prosecutors presenting deportation cases in immigration court had to obtain approval from the DHS secretary to share classified information.
The new memo instructs these employees to seek approval from the head of their respective agency, such as ICE or U.S. Citizenship and Immigration Services, to share classified information. Two DHS officials told NBC News that the administration is assessing the need to create more secure spaces and obtain security clearances for additional employees to store, print, and share classified information.
While the officials did not comment on whether the NBC News report played a role in prompting the policy change, they stated that global migration trends necessitated a review. The officials said the memo is one of the results of a three-year review examining 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 DHS official said. “We have seen the terrorist threat landscape become much more complex over the last few years than it was right after 9/11.”
Kharwin, who is on the national terrorist watchlist maintained by the FBI, is believed to be a member of Hezb-e-Islami (HIG), a political and paramilitary organization designated as a terrorist organization by the U.S.