Immigration judges and officers will have more access to classified information under new rule

NEW YORK CITY - Immigration judges and asylum officers will now have more access to classified information to help them more easily identify migrants that may have ties to terrorism or pose a threat to public safety, according to a new exclusive report by NBC News.

The new policy, initially announced on a May 9 memo by the Biden administration, instructs asylum officers making an initial determination about an immigrant's eligibility to pursue an asylum claim to go to the head of their individual agency, like ICE or U.S. Citizenship and Immigration services, for approval to share classified information.

The administration is still determining if it will need to build more space and get security clearances for more employees to store, print and share classified information, according to two DHS officials who talked to NBC News.

This rule 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 and prosecutors presenting a case for deportation in immigration court had to get approval from the Department of Homeland Security secretary to share classified information.

The change in policy follows an April 11 report that revealed an Mohammad Kharwin, a 48-year-old Afghan migrant on the terrorist watch list 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.

The FBI's terror watchlist classified Kharwin as a member of Hezb-e-Islami, a political and paramilitary organization which the U.S. designated as a terrorist organization. The watch list includes names of 1.8 million people considered potential security risks.

Kharwin was caught crossing the border in 2023, but released because the Border Patrol lacked biometric information connecting him to the terror watch list, NBC News explains. He lived in the U.S. for more than a year before he was arrested by ICE in early 2024. He was later freed again as he awaited an asylum hearing scheduled for 2025.

The officials said the memo announcing the new policy 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 told NBC.

"We have seen the terrorist threat landscape become much more complex over the last years than it was right after 9/11," the official continued.