Trends in TWIC Waivers and Appeals for Criminal Convictions
By reviewing the trends in appeals and waivers, an applicant or cardholder can get an idea of the likelihood that his or her appeal or waiver may be approved by TSA.
Likelihood a TWIC Appeal Will Be Approved
The appeals process is utilized if an individual believes that TSA relied on incorrect or incomplete information in denying or revoking his or her TWIC.
Historically, TSA has struggled to correctly discern whether a criminal conviction is disqualifying and if there is any doubt, the agency is likely to issue an Initial Determination of Threat Assessment (IDTA), and then rely on the applicant to provide documentation as to why the crime is not disqualifying. Similarly, if information regarding the disposition of a crime is missing from the fingerprint-based criminal history check, TSA may automatically initially deny the TWIC and put the burden on the applicant to provide documentation of the disposition. Therefore, it can be very beneficial for the applicant to gather all the relevant records related to his or her conviction, even prior to applying for the TWIC or while waiting on the decision.
Because many of these denials are based on erroneous or incomplete information, applicants that can present the appropriate documentation stand a good chance that the appeal will be granted. For example, as of 2012, TSA had received over 48,000 appeals and over 47,000 were approved. However, this statistic includes appeals based on immigration status, which make up a good percentage of the appeals cases.
Here are some of the most common reasons that applicants may need to appeal the denial of a TWIC (not related to immigration status):
- The charges against the applicant were dropped, but the FBI criminal history check does not list a disposition
- The release date from jail is not listed or incorrectly shows that the applicant was released less than five years ago
- A conviction was reversed on appeal but this is not reflected in the criminal history check
- The conviction was for a misdemeanor but the offense category is not listed on the criminal history check or is listed incorrectly as a felony
Applicant was fingerprinted but never prosecuted for a crime (ex. an old civil immigration violation)
An attorney can help prepare your appeals packet and present the legally significant facts to demonstrate why you are not ineligible.
A current cardholder has a duty to report, within 24 hours, if he or she is under indictment for a disqualifying crime. Therefore, if a cardholder is under indictment for a crime that is not a disqualifying crime, it is important that the cardholder maintain meticulous documentation so that if TSA ever revokes the TWIC, the cardholder has documentation at the ready to show that the crime is not a disqualifying offense.
If a TWIC appeal is denied, it may be because the crime that the applicant or cardholder committed is actually a disqualifying crime committed within the applicable time frame. In this case, the individual could still file a waiver, but would need to do so within 60 days of the Final Determination of Threat Assessment. If the individual believes that the TWIC appeal was denied in error, he or she can petition for a review by an Administrative Law Judge. Because the vast majority of appeals seem to be approved, and even some of those denied would be eligible for waivers, very few cases are reviewed by the ALJ. The last time these statistics were published, in 2012, only 113 cases in total had ever been reviewed by the ALJ out of 47,000 appeals.
There are very few cases in which judicial appeals of TWIC decisions have been filed. However, there is one recent case that was decided in the U.S. District Court, Central District of California, Seraji v. Gowadia, in which a TWIC applicant claims that the FBI wanted him to become an informant at his local mosque in exchange for granting him a TWIC. Although, the court dismissed the case because he had not exhausted all of his administrative appeal options within TSA, the facts of the case are quite interesting.
Mr. Seraji is a naturalized U.S. citizen that came to the U.S. from Yemen when he was 13. He received an offer of employment from a trucking company that was contingent upon his receiving a TWIC. Shortly after filing his TWIC application, Mr. Seraji claims that TSA contacted him and requested an interview. At the interview, he claims that the TSA investigator, along with an FBI agent asked him a series of questions about whether he had been recruited by any terrorist groups to work at the port, but ultimately asked him to befriend a man that attended his mosque and serve as an informant. He claims that they told him they could help him get his TWIC if he wanted to be an informant.
Mr. Seraji then received an IDTA letter in the mail, initially denying his TWIC. He retained counsel and his attorney attended a second meeting with the FBI agent. At this meeting, he was asked to provide all his social media passwords and questioned about why he “liked” certain pictures. At the end of the meeting, Mr. Seraji claims he was told that since he didn’t want to be an informant, he would not receive a TWIC. His TWIC was denied, as was his appeal. Instead of filing for a review by an ALJ, he filed the appeal in court, where it was dismissed because he had not exhausted all administrative remedies.
Likelihood a TWIC Waiver Will Be Approved
As discussed above, cardholders and applicants who have been convicted of a disqualifying crime can request a waiver. As with appeals, the most recent published statistics regarding waivers indicate that most waivers are approved, close to 90 percent. It is likely that many candidates with recent or serious disqualifying crimes are denied employment in these fields and therefore don’t have a need for a TWIC card, which explains the high rate of approval.
When TSA is considering whether to grant a waiver, the applicant must present documentation that he or she does not pose a security threat. TSA considers:
- The circumstances of the disqualifying act or offense.
- Time passed since the incident and your history since the incident
- Restitution made by the applicant
- Sentencing leniencies that were given to the applicant
- Other factors that indicate the applicant does not pose a security threat warranting denial of the TWIC, including evidence submitted by the applicant.
Examples of evidence include:
- Documentation of stable employment and/or community involvement(Restitution)
- Proof that applicant complied with terms of parole
- Documentation of completed drug rehabilitation, if applicable
- Sentencing report or transcript if it contains favorable mitigating circumstances
- Letters of reference from probation officer, employers, clergy, family etc.
As mentioned above, many individuals with recent or serious crimes will not even make it to the stage where he or she needs to request a waiver because employers in these industries are unlikely to hire individuals that have committed recent, serious or shockingly violent crimes. As a result, many of the waivers that TSA reviews are for non-violent disqualifying crimes that were committed five or six years prior to the TWIC application, and therefore it is much easier for the applicant to demonstrate that he or she does not pose a security risk.
If you are seeking a waiver of your TWIC denial or revocation, an attorney can help you prepare a robust packet that addresses all of the factors that TSA considers when deciding whether to issue a waiver.
For more information see our page on Loss of Seaport Access Credential (TWIC) Due to A Criminal Conviction