Is There a "Secret Immigration Policy" to Ignore Social Media?

There is a supposed “secret policy” that prevented consular and immigration officers from checking Tashfeen Malik’s social media accounts where she wrote about jihad (possibly under a pseudonym or in personal messages). If her statements were discovered then she would have been denied a visa, preventing the atrocity.

This is getting a lot of attention on blogs, and Homeland Security Secretary Jeh Johnson responded by saying that there are certain limits that probably apply to personal messages, although he’s unclear. 

After following this controversy, I heard from six different immigration attorneys that there is no such secret policy and their clients routinely have their social media accounts checked by immigration officials — or at least have heard of it happening. 

Matthew Kolken of Kolken and Kolken in Buffalo, New York told me:

The first time I confirmed that the government was investigating social media was around 2009 when an adjudicator at a marriage fraud interview confronted my client with a series of pictures he was tagged in on Facebook.

The only person more surprised than me was his wife when she saw that the pictures were posted by his girlfriend the previous weekend. The silver lining is that when the officer witnessed my client’s rage he approved the application on the spot.

Charles Kuck at Kuck Immigration Partners in Atlanta, Georgia wrote:

USCIS and other government immigration agencies have been using social media for at least the last five years in naturalization, green card, and visa cases. It is disingenuous of USCIS to now say they have not used information gleaned from these sites to question and even deny applications.

We have advised clients for years of this practice by USCIS, ICE, and other DHS agencies as well as by the Department of State.

Greg Siskind at Siskind Susser PC wrote:

We’ve heard anecdotally for years about how immigration examiners will look at social media and scour the Internet when adjudicating a case and I’ve told clients to assume that their online history is being reviewed.

But the immigration bar’s understanding of this has been vague — when it happens, what they’re looking for, what sites they’ll look at, whether they have a way of looking at password-protected pages, etc.

We did just hear from a client who is applying for naturalization who received an inquiry from the FBI regarding his posting a statement where he actually denounced terrorism.

Aileen Josephs wrote:

The USCIS office in West Palm Beach, Florida has and continues to explore social media (Facebook) with marriage cases. Before the interview, they do in fact explore postings to see if the marriage is bona fide.

The excuse that the Administration is giving that they do not have a policy of using social media is incorrect. They have and they do. The question is why did they not use it in the US Embassy in Pakistan? Who interviewed Ms. Malik at the Embassy?  An American State department official or a paid local that works at the Embassy?  So many questions that need to be answered.

Bryan Johnson at Amoachi and Johnson, PLLC told me:

I don’t have any anecdotes of clients being confronted with information from their Facebook profiles, but the federal government’s claim that it would be impossible to vet social media accounts of visa applicants is implausible at best. The government has time to interview every applicant in person so therefore they would have time to do a brief social media search — it takes about two minutes.

David Bennion wrote:

The federal government absolutely reviews social media postings in adjudicating immigration benefit applications. A client of mine a few years ago was placed into removal proceedings, supposedly for a Facebook post the client wrote about immigrant rights activism.

In reality, the action was taken to intimidate my client and retaliate for my client’s political activism in the U.S. This shows that the risk of abuse with programs of social media surveillance is real.

I’m not convinced this “secret policy” to ignore social media is real after hearing from these professionals. Here’s to hoping that reporters will seek to verify whether such a policy exists.

Cross-posted from Cato.org.

Ed. update: On Wednesday, FBI Director James Comey told reporters that there is no evidence that either of the shooters posted on social media about jihad. Comey said their support for jihad was sent in private direct messages, and he called reporting on the issue "a garble." DHS Secretary Jeh Johnson also said reports of a secret policy banning review of social media posts were "not accurate."

Ed. update #2: Elizabeth Nolan Brown reports that there was once such a policy, but that it only applied to immigration officials reviewing visa applications, not to federal agents or counter-terrorism officials. It was ended in late 2014, but given that Malik never posted about jihad or terrorism in any public profile, it wouldn't have affected her migration eligibility.

It's still not clear how to square this alleged official policy with the experience of immigrants and attorneys who say that DHS officials are known to look at social media.