SPEAKERS CONTENTS INSERTS Tables
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ALTERNATIVE PROPOSALS TO RESTRUCTURE THE IMMIGRATION AND NATURALIZATION SERVICE
IMMIGRATION AND CLAIMS
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTH CONGRESS
MAY 21, 1998
Serial No. 114
Printed for the use of the Committee on the Judiciary
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For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
COMMITTEE ON THE JUDICIARY
HENRY J. HYDE, Illinois, Chairman
F. JAMES SENSENBRENNER, Jr., Wisconsin
BILL McCOLLUM, Florida
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR SMITH, Texas
ELTON GALLEGLY, California
CHARLES T. CANADY, Florida
BOB INGLIS, South Carolina
BOB GOODLATTE, Virginia
STEPHEN E. BUYER, Indiana
ED BRYANT, Tennessee
STEVE CHABOT, Ohio
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
ASA HUTCHINSON, Arkansas
EDWARD A. PEASE, Indiana
CHRIS CANNON, Utah
JAMES E. ROGAN, California
MARY BONO, California
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JOHN CONYERS, Jr., Michigan
BARNEY FRANK, Massachusetts
CHARLES E. SCHUMER, New York
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
STEVEN R. ROTHMAN, New Jersey
THOMAS E. MOONEY, Chief of Staff-General Counsel
JULIAN EPSTEIN, Minority Staff Director
Subcommittee on Immigration and Claims
LAMAR S. SMITH, Texas, Chairman
ELTON GALLEGLY, California
WILLIAM L. JENKINS, Tennessee
EDWARD A. PEASE, Indiana
Page 4 PREV PAGE TOP OF DOCCHRIS CANNON, Utah
ED BRYANT, Tennessee
JAMES E. ROGAN, California
MELVIN L. WATT, North Carolina
CHARLES E. SCHUMER, New York
HOWARD L. BERMAN, California
ZOE LOFGREN, California
ROBERT WEXLER, Florida
GEORGE FISHMAN, Chief Counsel
JIM WILON, Counsel
LAURA BAXTER, Counsel
MARTINA HONE, Minority Counsel
C O N T E N T S
May 21, 1998
Smith, Hon. Lamar, a Representative in Congress from the State of Texas, and chairman, Subcommittee on Immigration and Claims
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Aviv, Diana, Associate Executive Vice President for Public Policy, Council of Jewish Federations
Brown, Robert L., Chairman, Immigration Directors' Association, Immigration and Naturalization Service
Gallo, Richard J., National President, Federal Law Enforcement Officers Association
Martin, Susan, Former Director, U.S. Commission on Immigration Reform
Meissner, Hon. Doris, Commissioner, Immigration and Naturalization Service
Papademetriou, Demetrios G., Senior Associate and Director, International Migration Policy Program
Reyes, Hon. Silvestre, a Representative in Congress from the State of Texas
Rogers, Hon. Harold, a Representative in Congress from the State of Kentucky
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
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Aviv, Diana, Associate Executive Vice President for Public Policy, Council of Jewish Federations: Prepared statement
Booz Allen & Hamilton, report on Immigration and Naturalization Service, Organization Restructuring
Brown, Robert L., Chairman, Immigration Directors' Association, Immigration and Naturalization Service: Prepared statement
Gallo, Richard J., National President, Federal Law Enforcement Officers Association: Prepared statement
Martin, Susan, Former Director, U.S. Commission on Immigration Reform: Prepared statement
Meissner, Hon. Doris, Commissioner, Immigration and Naturalization Service: Prepared statement
Papademetriou, Demetrios G., Senior Associate and Director, International Migration Policy Program: Prepared statement
Reyes, Hon. Silvestre, a Representative in Congress from the State of Texas: Prepared statement
Page 7 PREV PAGE TOP OF DOC Rogers, Hon. Harold, a Representative in Congress from the State of Kentucky: Prepared statement
Letter received from The White House dated March 30, 1998
Letter received from Madeleine K. Albright, The Secretary of State, dated March 31, 1998
Letter received from Alexis M. Herman, U.S. Department of Labor, dated March 31, 1998
Smith, Hon. Lamar, a Representative in Congress from the State of Texas, and chairman, Subcommittee on Immigration and Claims: Prepared statement
Letter received from Hon. Doris Meissner, Commissioner, Immigration and Naturalization Service, dated June 16, 1998
ALTERNATIVE PROPOSALS TO RESTRUCTURE THE IMMIGRATION AND NATURALIZATION SERVICE
THURSDAY, MAY 21, 1998
House of Representatives,
Subcommittee on Immigration
Committee on the Judiciary,
The subcommittee met, pursuant to notice, at 9:27 a.m., in Room 2237, Rayburn House Office Building, Hon. Lamar S. Smith [chairman of the subcommittee] presiding.
Present: Representatives Lamar S. Smith, Elton Gallegly, William L. Jenkins, Edward A. Pease, Chris Cannon, Ed Bryant, James E. Rogan, Melvin L. Watt, Howard L. Berman, and Zoe Lofgren.
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Staff present: Jim Wilon, Counsel; Laura Baxter, Counsel; Judy Knott, Staff Assistant; and Martina Hone, Minority Counsel.
OPENING STATEMENT OF CHAIRMAN SMITH
Mr. SMITH [presiding]. The subcommittee on Immigration and Claims will come to order.
We have some business to conduct initially in regard to subpoenas and we're going to go to a hearing on the reorganization of the INS. I have an opening statement, then I'll turn to Mr. Watt for his opening statement, and then we will await the appropriate number of members to vote on the subpoenas.
A year ago this week, a terrible injustice occurred near the west Texas town of Redford. Ezekiel Hernandez, Jr., an 18-year-old high school student, was shot and killed while he was tending his herd of goats. The public has never been told the whole story.
All we know is that on May 20, 1997, four United States Marines were on patrol near the Texas-Mexico border to watch for suspected drug smugglers. This was part of an operation overseen by the United States Border Patrol. The Marines observed Hernandez herding his goats about 200 yards away, carrying a 22 rifle to protect himself from thieves, wild dogs, and rattlesnakes.
Page 9 PREV PAGE TOP OF DOC At one point, Hernandez may have raised his rifle and fired one or two shots in their direction. Because the Marines were fully camouflaged and concealed, Hernandez probably didn't recognize them and he may not have seen them at all.
For 20 minutes, Hernandez moved slowly along a ridge exposed from all sides. The Marines shadowed him, maintaining their concealment. They radioed their command center and said that they were, ''taking him if he raised his gun again.'' The response was, ''roger, fire back.''
Finally, Hernandez stopped by an old well filled with dirt and raised his rifle again. One hundred and fifty yards away, the Marine team leader put the cross hairs of his scoped M-16 on the youth's chest and pulled the trigger. The bullet hit him with enough force to lift him off his feet and throw him backwards into the well. The Marines approached the motionless body. No one attempted to administer any type of aid. They watched, not knowing whether Hernandez was dead or alive. Hernandez bled to death in a few minutes.
The Border Patrol was supposed to respond to emergencies within 15 minutes. If they had done so, they would have arrived on the scene 5 minutes before Hernandez was shot. Instead, it took them 38 minutes to get there, and by then, he was dead.
The shot that killed Hernandez started a battle in west Texas. This battle turned out to be just as lopsided as the encounter between Hernandez and the Marines. On one side were a family and a community that lost a son and a brother. The Texas Rangers investigated the killing and the district attorney called a grand jury. They wanted to know why Hernandez was killed and they wanted justice.
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On the other side were two of the most powerful government agencies in the world, the United States Department of Defense and the United States Department of Justice. People in those agencies didn't want criminal trials, or damaged careers, or public embarrassment. They had an army of government lawyers to fight for them, and so far, they have won the battle.
The killing of Ezekiel Hernandez raises many troubling questions. Who decided to put the Marines in Redford and did they have the authority to be there? How could a team of United States Marines have killed a young man herding goats? How were those Marines trained by the Border Patrol? Were they truly prepared for their mission? Did someone really believe that a youth with a 22 rifle had decided to conduct a frontal assault on a team of United States Marines? Did they think that their only option was to shoot him?
The Marines had been requested by the Border Patrol. The Border Patrol was supposed to brief the Marines, supervise them, and respond to emergencies. But that didn't help Ezekiel Hernandez. Why hasn't anyone been held accountable for this shooting? Why hasn't anyone been suspended, sanctioned, or penalized for their actions? Most importantly, where is the justice when an innocent young American is killed by his government?
Shortly after the killing, I initiated congressional investigation. And as you can see from the timelines that we have provided, I spent a year trying to obtain the most basic information, like the written statements made by the Marines and Border Patrol agents involved in the killing. For a long time the Justice Department was conducting a criminal investigation, but the criminal investigation has been over for more than 3 months.
Page 11 PREV PAGE TOP OF DOC Late yesterday afternoon, the Justice Department finally delivered a folder containing some requested documents, apparently in an effort to avoid subpoenas. Even a cursory examination of the new material revealed that the Justice Department has not yet provided what Congress has asked for.
The Justice Department has refused to provide any documents in their custody that originated in the Defense Department, although there is no basis in the law for this refusal. The Department has also refused to describe the nature and content of these withheld documents. The Justice Department has failed to provide statements from all the Border Patrol agents who were at the scene of the killing, as I requested. Finally, I am troubled by the fact that the sequentially numbered documents provided by the Justice Departmentthere are 143 numbered documents missing, which the Department has not yet explained.
Congress and the American people have waited too long for the truth about the death of Ezekiel Hernandez. I will move that we subpoena the Justice Department for all the documents that are relevant to his death, so that the truth can finally come out. That the death of Ezekiel Hernandez resulted from poor training or poor judgement, then we have a responsibility to hold people accountable and learn from this tragedy so that it is not repeated.
I will also move for an identical subpoena to be served on the Defense Department so that we can obtain all the relevant documents without delay. This is not because of any obstruction by the Defense Department, but a full year has passed since Ezekiel Hernandez died, and we cannot in good conscience wait any longer.
Let me say to my colleagues whose vote I will be asking for that I do not take this issuing of subpoenas lightly. In fact, it's the first time as a subcommittee that we've requested that. But I think it is important for us and for the American people to have the facts, to have accurate information, and to have the truth, and nothing less than that is acceptable.
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Let me also thank my colleagues for their presence at this meeting of the subcommittee. I know they have had to leave another hearing that is very, very important to be here, and I appreciate their attendance.
The gentleman from North Carolina, Mr. Watt, is recognized.
Mr. WATT. Thank you, Mr. Chairman. I assume that you will have a separate opening statement on the restructuring of the INS, so I think I'll defer my opening statement on that matter until then. I don't have an opening statement on this matter.
Mr. SMITH. Thank you, Mr. Watt, and you've reminded me also to say that we will be going into a hearing within a few minutes on the reorganization of the INS, after we finish this.
Pursuant to notice, the chair moves that the subcommittee authorize the issuance of two subpoenas. This is taken from the documents which the members have listed on the sheets before them. Is there any discussion? If not, noting the presence of a reporting quorum, and in this case it's a majority of the full committee, seven members, the question occurs on the motion to authorize the subpoenas
Mr. WATT. Mr. Chairman, I'm sorry, could I just
Mr. SMITH. The gentleman from North Carolina, Mr. Watt.
Page 13 PREV PAGE TOP OF DOC Mr. WATT. Would you yield just for a question.
Mr. SMITH. I'd be happy to.
Mr. WATT. I know you've been at this for quite awhile, but you received a number of documents yesterday. I'm always a little concerned about having to issue subpoenas for documents that should be available, unless there's some reasonable reason given that they're not available. I'm wondering whether the same purpose might be served by giving you timegiving your staff timeto review the documents that you do have and at least understand whythe reasons that other documents were not given. And maybe delay this vote for a week or so while we try to work this out without the subpoena. Has the chairman considered that, and might that be an option at this point? I know I haven't talked to you about it.
Mr. SMITH. Okay, will the gentleman yield?
Mr. WATT. Yes, sir.
Mr. SMITH. Let me respond, and then also maybe go into a little bit more detail. That has been considered, but to respond to the first point you made, we have had time to look at the documents that have been provided for us, and the documents and the information that is missing that I mentioned in my opening statement still has not been made available to us. So, it's not a question of not having looked at the documents we received. We have looked at them pretty closely. So, we still have not gotten what we have asked for.
Let me go in also a little bit more detail. I did write the Attorney General at the very beginning of April and requested a lot of this information. I said in my letter to the Attorney General that I would appreciate having all this information by the end of April. Here it is May 21st, and I still have received nothing in writing from the Department of Justice. And while we have had some documents provided, they are not the complete information that I've requested. So I feel that we need to go forward now. If the information is forthcoming, then there needs to be no concern about the subpoenas.
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And I also want to mention to the gentleman, as I did before the meeting began, that I have avoided certain adjectives today. And we are trying to avoid accusing the Department of intentionally doing something wrong. All we want is the information. All we want is the facts. All we want is the truth. And that's why I think these subpoenas are necessary. Thank you for yielding.
Mr. WATT. Can I ask two other questions, quickly, before you move to a vote. First, are we satisfied that we are not interfering with some criminal investigation in asking for documents and doing a separate investigation at the Congressional level?
Mr. SMITH. If the gentleman will yield further. It is my understanding that the criminal investigation ended 3 years ago, and I have not heard anything to the contrary.
Mr. WATT. Three months ago?
Mr. SMITH. That's correct. Did I say 3 months or 3 years?
Mr. WATT. Three years.
Mr. SMITH. Three years. Well, it seems like 3 years, but in fact, the criminal investigation ended 3 months ago. Thanks for the correction.
Page 15 PREV PAGE TOP OF DOC Mr. WATT. And one final question. Since you have been dealing not with the Department of Defense, just with the Justice Department, I'm wondering if you might consider directingproceeding only with the subpoena to the Department of Justice and providing an opportunity to the Department of Defense to respond, since even you acknowledged that they have not been recalcitrant?
Mr. SMITH. If the gentleman will yield.
Mr. WATT. Yes.
Mr. SMITH. As far as the Department of Defense goes, I did make clear in my statement that we haven't accused them of any obstruction, and I don't do so now. But we do have concerns that they, being a government agency like any other government agency, it might take a lot longer to get that information if we don't issue a subpoena, than if we simply wait as we've been doing for so long.
Mr. WATT. Is it clear that this committee has jurisdiction to issue a subpoena to the Department of Defense?
Mr. SMITH. I have been told by counsel that that is within our jurisdiction to issue such a subpoena.
Mr. WATT. I yield back.
Mr. SMITH. Thank you, Mr. Watt. The question occurs on the motion to authorize the subpoenas. All in favor, say aye.
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All opposed, nay.
The clerk will call the roll.
The CLERK. Mr. Gallegly. [No response.]
The CLERK. Mr. Jenkins.
Mr. JENKINS. Aye.
The CLERK. Mr. Pease.
Mr. PEASE. Aye.
The CLERK. Mr. Cannon.
Mr. CANNON. Aye.
The CLERK. Mr. Bryant.
Mr. BRYANT. Aye.
The CLERK. Mr. Rogan.
Page 17 PREV PAGE TOP OF DOC Mr. ROGAN. Aye.
The CLERK. Mr. Watt.
Mr. WATT. Pass.
The CLERK. Mr. Schumer. [No response.]
The CLERK. Mr. Berman. [No response.]
The CLERK. Mr. Lofgren. [No response.]
The CLERK. Mr. Wexler. [No response.]
The CLERK. Mr. Smith.
Mr. SMITH. Aye.
The CLERK. Six ayes.
Mr. SMITH. Before you give us the final results, let me ask Mr. Watt if he wants to change his vote.
Mr. WATT. No, I want to pass.
Page 18 PREV PAGE TOP OF DOC Mr. SMITH. Okay, he still wants to pass it. Would you report.
The CLERK. Six ayes, one pass.
Mr. SMITH. Okay, the motion is agreed to. Again, I thank all members for their presence and the meeting of the subcommittee stands adjourned until we reconvene in a few minutes for the hearing. Thank you all.
Mr. SMITH. The subcommittee on Immigration and Claims will reconvene. I understand that we have a vote shortly after 10:00, which will be a journal vote. In an effort to hear from our colleagues who are members of our first panel, I'm going to dispense with my opening statement, and I believe Mr. Watt is as well.
[The prepared statement of Mr. Smith follows:]
PREPARED STATEMENT OF HON. LAMAR SMITH, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS, AND CHAIRMAN, SUBCOMMITTEE ON IMMIGRATION AND CLAIMS
The purpose of this hearing is to review and discuss the proposals that various individuals and groups have drafted to restructure the Immigration and Naturalization Service (INS). Obviously this is a very significant issue to this Subcommittee and to many Americans.
Page 19 PREV PAGE TOP OF DOC During my tenure as Chairman, I believe that the INS has improved its performance in some ways, in part due to the Subcommittee's insistence. Yet, I have many remaining concerns about the current operations of the agency.
The goal today is to learn more about each proposal for INS reorganization. Today we have some of the country's leading experts on immigration policy.
During the last seven years, the budget of the INS has increased almost three-fold. In fiscal year 1997, Congress appropriated $ 3.8 billion to the INS, and the INS has requested $ 4.2 billion for fiscal year 1999 budget.
This Subcommittee recognizes that a long-neglected agency cannot be transformed overnight. However, it is clear that there remain pervasive problems with how the immigration laws set by Congress are executed and how the INS is managed.
Some Members of Congress believe that the INS must devote more priority and resources to enforcement-related duties.
Others believe that the INS is too enforcement-oriented and should change to better serve immigrants. Still others believe that the mission of the INS is so conflicted that one agency simply cannot perform both enforcement and service functions. These advocates say that the INS should be dismantled and its duties dispersed to other agencies whose goals are similar.
This hearing will explore the options that the various parties have presented for restructuring the INS. We will also hear comments from other interested parties.
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Two of my colleagues in the House have introduced bills to bring about the change they feel is necessary to improve the immigration function. Congressman Harold Rogers' bill implements the proposal of the Commission on Immigration Reform to do away with the INS altogether by distributing the immigration functions among other agencies, such as the Departments of Labor, State and Justice. Congressman Silvestre Reyes' bill, H.R. 2588, removes only the enforcement components of the INS and places them in a new agency within the Department of Justice, the Office of Enforcement and Border Affairs.
The INS Commissioner has proposed a plan to make an internal split between the Enforcement and Service components of the INS. Both functions would remain within the agency. The INS believes that this plan would improve accountability and communication within the agency.
We will also hear from entities outside the government that also have proposals for restructuring the INS. We will hear from the former Executive Director for the Commission on Immigration Reform regarding why the Commission concluded that the INS is so ''overloaded'' and ''conflicted'' as to prevent it from accomplishing its duties under the immigration law. The Commission's final report, issued in September 1997, called for dividing the INS' duties among two existing Departments, State and Labor, and two new agencies, the Bureau of Immigration Enforcement in the Department of Justice and the Agency for Immigration Review, a new independent agency.
We will hear from a respected scholar from the Carnegie Endowment for International Peace's International Migration Policy Program, which presents two alternatives. The first is for creating a new Cabinet-level independent agency along the lines of the Environmental Protection Agency. The second calls for the Department of Justice to elevate the importance of the INS and create a new Associate Deputy Attorney General for Immigration. Both alternatives would split the Enforcement and Service components of the agency. The INS would continue to exist as an agency.
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We will also hear comments on these proposals from three other organizations. A representative from the Immigration Directors' Association will tell us that INS' functions should not be separated because it is impossible to divide enforcement from the adjudication of applications for benefits. An official from the Federal Law Enforcement Officers' Association will tell us that the enforcement components of the INS should be removed from the agency and placed in a new office in the Department of Justice. The association asserts that the immigration law enforcement efforts should be integrated and should not be required to compete with the benefits components for resources or priorities.
Finally, we will hear from the Director of the Council of Jewish Federations, who will tell us that the two sides of the INS must be separated because the INS should better serve immigrants and United States citizen customers in a less adversarial manner.
By taking advantage of the expertise of today's witnesses, we will be able to begin the process of deciding as a Subcommittee what the future of the INS as an agency should be.
Mr. SMITH. I don't need to go into any lengthy introduction, but let me just welcome Mr. Harold Rogers, our colleague from Kentucky; Mr. Silvestre Reyes is our colleague from Texas. We look forward to your opening statements. We're going to try to finish with this panel before the vote, so that you all won't have to come back. Mr. Rogers, would you begin.
STATEMENT OF HON. HAROLD ROGERS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF KENTUCKY
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Mr. ROGERS. Mr. Chairman, Mr. Watt, members of the subcommittee, thank you for holding this hearing and for giving me and the other members who testify the chancethe opportunityto share our views on the critical need to reorganize the U.S. immigration system.
As all of us know, the INS has been charged by the Congress with safeguarding the most precious benefit that our Nation has to offer, American citizenship. This is a very difficult task requiring the agency to carry out very diverse responsibilities. And the law requires that it carry them out effectively and fairly.
Unfortunately, the agency has never effectively fulfilled its responsibilities. Its history is one of mismanagement, waste, failure, and abuse through Republican and Democrat administrations. This is not a partisan matter.
The excuse for those problems given by both Democrat and Republican administrations for over a decade has been a lack of adequate resources, and the cry for more funding has not gone unheeded. But a massive infusion of money has done little to prevent the disasters we face today.
In the 15 years I have served on the subcommittee that funds the INS, its budget has grown from $510 million in 1984, when I went on the subcommittee, to $3.8 billion this current year, an increase of over 600 percent. In that time, the only thing that has changed is the magnitude of the failures. With an ever increasing stream of both legal and illegal aliens into the U.S., the problems of the INS have become easier to see and more difficult to solve. In fact, I've seen no evidence to suggest that more money has enabled the INS to effectively accomplish its many missions.
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In just my 3 years as chairman of the Appropriations Subcommittee, during which funding has increased by nearly 50 percent, here's what we've seen: the appalling Citizenship U.S.A. programwhere naturalization cards were handed out to felons, because the INS chose not to check their backgrounds, as has been the policy forever. We've since made background checks the law.
The use by the INS of thousands of questionable designated private agents to take fingerprints for citizenship applications. Bear in mind this is the most valuable thing this country can confer on a non-citizencitizenship in our country. And here's who INSsome of the onesdesignated to take the fingerprints and verify the identify of those taking applications for citizenship. Such reputable experts in fraud detection as Pookey's Parcel Post in Los Angeles, Harbor Liquors, Freeman's Hallmark Store, Fast Photo, known for fraud detection, and the infamous Hernandad Mexicana Nationale, which became infamous for organizing non-citizens to vote.
The purposeful deception of members of this Congress inspecting the Krome Detention Center in Miami, for which no one was ever punished. Purposeful lying to Members of Congress. The utter failure to prevent illegal immigration through our land borders in the Southwest and elsewhere.
We've seen the refusal to hold accountable officials and employees responsible for any of these actions. We've seen the never ending arrests of INS personnel for taking money for favors for illegal aliens and others. And I could go on, as this chairman, and this ranking member, and these members of this subcommittee know.
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What we are left then, Mr. Chairman, is the following condemning legacy. First, each year more illegal aliens enter the U.S. than are removed by the INS. About 40 percent of these illegals are people who came here legally on a tourist visa and who simply illegally remained in the country undetected, unchecked, unknown. No one can tell youINS, State Departmentno one can tell you how many legals came here and are now illegally herewho simply overstayedwho they are, where they are, how many they are, or why we haven't removed them. There's just no answers.
First, illegal aliens continue to enter and remain here in alarming numbers without any fear of removal. Over five million aliens, we think, are in the U.S. About 1/4 million of them come each year and we take out, for example in 1997, we removed 112,000. That's 1/2 of the ones who illegally came in a year.
Second, the budget of the INS has increased by over 94 percent in the past 3 years for enforcement activities. Almost 100 percent, Mr. Chairman, including the Border Patrol, detention and removal of aliens, and investigations. Yet, the number of illegal aliens now is the same as it was over 10 years ago when Congress first enacted the controversial amnesty for millions of illegals as a means of solving our problem. This too is a travesty.
Third, intending immigrants who legitimately seek green cards, asylum, naturalization, and other benefits are not getting adequate service, due to a slow and inefficient INS bureaucracy. These applicants pay fees intended to cover the processing costs and they deserve timely service.
Page 25 PREV PAGE TOP OF DOC Despite the fact that resources have been increased by 150 percent in the past 3 years for service activities, including the processing of citizenship immigrant and non-immigrant petitions, the average wait to process a naturalization application is now 14 to 15 months. That's an increase from 1 year ago, when the wait was 8 to 10 months. And conversely, the number of new applications, still high, has begun to decline over the last year.
Despite additional resources and declining caseloads, waits are still excessive, files lost, conflicting instructions given to peopleanother travesty in my view.
Fourth, fraudulent applications for immigration benefits are going uninvestigated. The processing of benefits by the INS is so massive and so inefficient that safeguards to prevent fraud are ineffective. And as border controls tighten, more aliens will resort to fraud to enter the country, and they will go undetected. That's an absolute travesty.
Mr. Chairman, not one key element of our immigration system is working properly, and we can no longer afford to shake our heads and hope that this agency will correct these failures by itself. It has triedhonestly tried, but it has failed. Every one step forward, it takes three steps back. I've witnessed reorganization after reorganization of the INS over the 15 years I've served on the Appropriations Subcommittee in both Republican and Democrat administrations, and a futile effort to repair a hopelessly punctured sinking ship facing an ever increasing hurricane all around.
All these reorganizations have failed utterly. Now, we see another Administration attempting to repair a sinking ship with yet another suggestion of reorganization. I've all these years hoped that one of these reorganizations would work. Mr. Chairman, I've sadly concluded that there's just no way that an organization that has conflicting missions can possibly do this job.
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We need a new approach. One that does not involve more money, because that's obviously not the answer, but rather one that offers a comprehensive common-sense approach that will restore accountability, strengthen enforcement, improve service, and safeguard the benefit of American citizenship.
The Bipartisan Commission on Immigration Reform, chaired by the late Barbara Jordan, was given the task of looking closely at the management issues facing the INS in this period of high immigration. That commission conducted exhaustive hearings and interviews before reporting their findings and recommendations to the Congress last September.
What did the Barbara Jordan Commission conclude? One, the immigration system is broken. Two, that the INS suffers from what they called, ''mission overload,'' meaning that it has too many complex and conflicting duties to be effectively managed by the best of people, and I consider Commissioner Meissner the best of people. And three, that major structural reform of the entire system is necessary to deliver the protection and services the country deserves.
I believe that that Commission performed the most comprehensive study of INS structure and management issues to date, and their recommendations constitute the most promising solutions to date. Because I believe that bold and sweeping reforms are absolutely necessary. I introduced a bill yesterday that embodies the Barbara Jordan Commission recommendations.
The bill, H.R. 3904, provides one, that a separate immigration enforcement agency be established within the Department of Justice. Two, that the State Department process all immigration benefits, including applications for non-immigrant and immigrant visas and U.S. citizenship. Three, that the Department of Labor identify illegal aliens in the work place, and determine whether an employer sponsoring a visa applicant has met labor standards set out in U.S. immigration law. And four, finally, that an independent agency for review of administrative decisions be established.
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Why will these reforms make a difference, Mr. Chairman? First, by establishing a law enforcement agency whose sole mission is to control the borders and to investigate, apprehend, and remove illegal aliens from the country, we will have a stronger enforcement against illegal immigration.
Second, by consolidating the benefits granting responsibility into the State Department, applications for visas, green cards, citizenship, other immigrant benefits, can be process more efficiently, effectively, and most importantly, fairly, and still be detected for fraud.
Third, by consolidating responsibility for immigration related activities at work sites into the Department of Labor, we would eliminate current duplicative efforts of both the INS and Department of Labor in this area. Give it to the people who regulate the work place, the Department of Labor. It would also produce a stronger enforcement effort against employers hiring unauthorized foreign workers, jobs being the primary magnet for illegal immigration, and saving those jobs for Americans.
And fourth, by consolidating all review and appeal procedures into one independent review agency, decisions can be consistently and fairly made. Now, the same agency is investigator, trier, convicter, and executioner. That can't work.
Taxpayers and intending immigrants deserve a well-managed, effective immigration system. While adequate funding is certainly necessary, it most certainly will not cure what ails INS. We now know that. We can have the most sound, credible, and fair immigration policies with all the money to fund them. But without the ability to effectively manage and implement them, the system as it stands is destined to fail as it has.
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The Commission's report was a serious effort to comprehensively address these fundamental problems and to produce fundamental, long-lasting changes on behalf of both citizens and citizens to be. I hope, Mr. Chairman, that your panel will review these recommendations and my bill carefully, and continue to work with my subcommittee on a bipartisan basis to address these very difficult issues.
Mr. Chairman, members of the subcommittee, I want to again thank you for the opportunity to testify and share my views with you on a subject that we chair.
[The prepared statement of Mr. Rogers follows:]
PREPARED STATEMENT OF HON. HAROLD ROGERS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF KENTUCKY
Mr. Chairman and Members of the Subcommittee, thank you for holding this hearing, and for giving me the opportunity to share my views on the pressing need to reorganize the U.S. immigration system.
The INS has been charged by the Congress with very difficult and very diverse responsibilities, and the law requires that it carry out them out effectively and fairly. But its history is one of mismanagement, waste, failure, and unfortunately, abuse. Lack of adequate resources has been the excuse given by both Democratic and Republican administrations for over a decade, and it has not gone unheeded.
But a massive infusion of money has done little to prevent the disasters we face today. In the fifteen years I have served on the Subcommittee which funds the INS, its budget has grown from $510 million in 1984, to $3.8 billion in 1998, an increase of over 600 percent.
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In that time, the only thing that has changed is the magnitude of the failures. With an ever increasing stream of both legal and illegal aliens into the U.S., the problems of the INS have become easier to see and more difficult to solve.
In fact, I have seen no evidence to suggest that more money will enable the INS to effectively accomplish its many missions. In just my three years as the chairman of the appropriations subcommittee, the nation has witnessed the appalling Citizenship USA program, where naturalization cards were handed out absent legally required background checks; it has witnessed the deception of Members of Congress inspecting the Krome Detention Center in Miami; it has witnessed the utter failure to protect our land borders in the Southwest and elsewhere; and it has witnessed the abdication of any accountability by officials and employees responsible for these actions.
What we are left with, than, is the following, condemning legacy:
First: Each year, more illegal aliens get into the U.S. than are removed by the INS. About 40% of these are aliens who enter on tourist visas and illegally remain in the country. Illegal aliens continue to enter and remain in alarming rates without fear of removal. Over five million illegal aliens are in the U.S. and about 250,000 additional ones are added each year. By contrast, only 112,000 illegal aliens were removed in FY '97.
Second: Resources have been increased by over 94% in the past three years for enforcement activities, including the border patrol, detention and removal, and investigations. Yet the number of illegal aliens residing is the same peak level as over ten years ago, when Congress was urged to enact an amnesty of millions of illegal aliens as a means of solving our illegal immigration problem.
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Third: Intending immigrants who legitimately seek green cards, asylum, naturalization, and other benefits are not getting adequate service due to slow and inefficient INS processing. These applicants pay fees intended to cover the processing costs and deserve timely service. But waits are excessive, files are lost, and conflicting instructions are given. In short, dealing with the INS is an extremely frustrating experience for most applicants.
Fourth: Resources have been increased by 150% in the past three years for service activities, including the processing of citizenship, immigrant and non-immigrant petitions. The award of naturalization benefits are supposed to be funded entirely from fees. However, because of the deficiencies discovered during Citizenship USA, the Congress has added money beyond the current fees in order to fix the system and reduce the backlog. And in spite of the increased funding, the average wait to process a naturalization application is now 1415 monthsan increase from one year ago when the wait was 810 months. New application levels, while still high, have begun to decline. The number of applications received in December of 1997 (99,300) has decreased by 39 percent from December of 1996 (60,500).
Fifth: Applications for immigration benefits based upon fraud are frequently not investigated. The current processing is inefficient and time-consuming and lacks sufficient safeguards to detect fraud. As border controls tighten, more aliens will resort to fraud to enter the country. Therefore, the current application process must be modified to better provide for fraud detection and investigationan increasingly used route for illegal immigration.
Mr. Chairman, the bipartisan Commission on Immigration Reform, chaired by the late Barbara Jordan, was tasked with looking closely at the management issues facing the INS in this period of high immigration. The Commission conducted exhaustive hearings and interviews before reporting their findings and recommendations to Congress last September. I believe that the Commission has performed the most comprehensive study of INS structure and management issues to date and that their recommendations deserve to be enacted. That is why I have introduced a bill that embodies the Commission recommendations.
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My bill provides that: 1) an immigration enforcement agency be established; 2) the State Department process immigration benefits, including applications for nonimmigrant and immigrant visas and U.S. citizenship; and 3) the Department of Labor identify illegal aliens in the workplace and determine whether an employer sponsoring a visa applicant has met labor standards set out in U.S. immigration law; and 4) an independent agency for review of administrative decisions be established.
I would just like to highlight why I think that these recommendations make sense.
First, by establishing a law enforcement agency whose sole mission is to control our borders, and to investigate, apprehend and remove illegal aliens from the country, we will have stronger enforcement against illegal immigration.
Second, by consolidating the decision-making responsibility into the State Department, applications for visas, green cards, citizenship and other immigrant benefits can be processed more efficiently, effectively, and fairly and still be detected for fraud.
Third, by consolidating responsibility for immigration-related activities at worksites into Department of Labor, eliminating current duplicative efforts of INS and DOL. It would also produce stronger enforcement efforts against employers hiring foreign workers, jobs being the primary magnet for illegal immigration.
And fourth, by consolidating all review procedures into one independent review agency, decisions can be consistently and fairly made.
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Taxpayers and intending immigrants deserve a well-managed, effective immigration system. While adequate funding is certainly necessary, it most certainly will not cure what ails INS. We can have the most sound, credible and fair immigration policies, with all the money to fund them, but without the ability to effectively manage and implement them, the system, as it stands, is destined to fail.
The Commission's report was a serious effort to comprehensively address these fundamental problems and to produce fundamental, long lasting changes on behalf of both citizens and citizens-to-be.
I hope that your panel, Mr. Chairman, will review them carefully and continue to work with me and my subcommittee to address these very difficult issues.
Mr. Chairman and Members of this Subcommittee, thank you again for this opportunity to share my views with you.
Mr. SMITH. Thank you, Mr. Rogers, for your statement. Mr. Reyes.
STATEMENT OF HON. SILVESTRE REYES, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS
Mr. REYES. Thank you. Good morning, Mr. Chairman, ranking member Watt, members of the subcommittee. Thank you for providing me with the opportunity to speak on this issue.
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As a former Border Patrol chief, I believe that this is a critically important issue for our Nation's future. More important, as a Member of Congress, representing a border community, I am deeply interested in the effectiveness of INS and the service that it provides. We must ensure that this agency effectively serves those applying for citizenship and serves our citizens who rely on them to protect our borders and keep our communities safe.
After more than 26 years of service with INS, I believe I have practical, realistic solutions to the complex problems facing that agency. Last fall, I introduced legislation to separate the enforcement component of INS from the service component. Since first arriving in Congress, I have consulted with you, Mr. Chairman, and Chairman Rogers, and other colleagues in the House, and my former colleagues in INS to help develop a plan that would improve our existing immigration policy.
I, as well as former and current colleagues, believe that as soon as we separate the enforcement component from the service component, our national immigration policy will possess two vitally important aspects crucial to success, clearly defined responsibilities, and most importantly, accountability for those goals.
At the request of the Administration and Commissioner Meissner, up to now I have not aggressively pushed my legislation. I have waited for them to develop a plan; a restructuring of the INS that would address our concerns. Unfortunately, in my opinion, their plan falls far short of my expectations.
Their reorganization proposal will create a bottleneck at the top, much like the proposal we had under former Commissioner McNary. To subscribe to this INS proposal is to subscribe to a plan that we already know will not work. Former Commissioner McNary's proposal came at a time when the agency size was much smaller and much more manageable than the current size of that agency. I know from first hand experience that that plan and that reorganization failed miserably.
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My legislation, I feel, is necessary and essential to ensure that we will be able to control our borders and deal with the ongoing influx of legal immigrants. It is my belief that the separation of service and enforcement will relieve INS of a counterproductive and conflicting mission. INS has a track record of not being able to effectively deal with this conflicting missions.
It is estimated that we currently have more than five million illegal immigrants living in our Nation. More than two million immigrants throughout the country are waiting to become citizens of the United States. This is the largest backlog of naturalization applications since the Federal Government began keeping records at the turn of the century. Non-immigrant overstays have been and continue to be today a large portion of the illegal alien population in our country. It is estimated that roughly 50 percent of the illegal alien population consists of those who have overstayed the terms of their temporary admissions.
The issue of background checks has been exhausted, and I will mention it only briefly to highlight some of the problems that INS is still trying to correct. INS has delayed issuing at least 75,000 green cards for legal immigrants due to the failure of equipment installed during 1997.
My legislation addresses the inherent problem of our immigration service, which I feel is management. Separating the enforcement component out of INS will make managers accountable for only naturalization and benefits under the adjudication process. The conveyance of U.S. citizenship and the adjudication of benefits should be respected, not regulated to second class status, depending on the priority of the moment.
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The director of the new enforcement agency will be held accountable for enforcement period. This new agency will consist of the Border Patrol, inspections, deportation and detention, investigations, and intelligence, all maintaining their autonomy yet focused on one common goal.
My legislation will improve service by limiting the scope of responsibilities and creating greater accountability. We must create an independent enforcement agency with it's funds and resources dedicated to enforcement. INS, in turn, must focus on adjudications, citizenship, and developing and maintaining a comprehensive and secure record system.
The bill I introduced last fall will change the way that INS functions by relieving them of their enforcement duties and allowing them to focus on naturalization and benefits under the adjudications process. By doing so, we are placing the responsibility of providing timely service to those seeking legal admission to this country squarely with INS. A backlog of more than two million people waiting on the INS is simply unacceptable.
This legislation will create a more accountable adjudication process, resulting in more efficient and better determination of benefits. An important point to stress is that INS would retain data and record keeping components of the immigration service. As the caretakers of immigration data they would be compensated by the enforcement branch in a yet to be determined manner. In addition, of the natural and necessary interactions between the service and enforcement branches, allowing INS to maintain the records, will further strengthen this relationship.
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Mr. Chairman, as we enter the 21st century and face new challenges, we must ensure that our law enforcement community is up to those challenges. The role of the U.S. Border Patrol and INS inspectors in fighting our cottage trafficking and the potential for terrorist activities along our borders, should not be overlooked or downplayed. They are our Nation's first line of defense.
I want to say this morning, Mr. Chairman, in the most emphatic way possible that I do not support abolishing the INS, and scattering their current responsibilities to the full winds is no answer. I firmly believe that that proposal does not serve the best interest of this country, our communities, and most of all, our national security.
I, perhaps more than anyone in this committee and this Congress, understand the frustration felt in dealing with INS issues. However, deep frustration should not drive or define how we respond to this issue. Rather, it is my hope and the hopes of thousands of hard working dedicated INS professionals that this Congress fully understands the complexity of the challenges and provides a workable solution.
I have always been amazed, or rather frustrated, by bureaucracies and bureaucrats because I have always found that common sense and sensible solutions always work best. And most of the time, those solutions are as plain as the nose on our faces. It is my hope, Mr. Chairman, that this morning, this body resists the temptation of cutting off our nose to spite our face. There's too much at stake for our country and for our future. And again, Mr. Chairman, and members of the committee, I deeply appreciate this opportunity to share with you my thoughts on this very important subject.
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[The prepared statement of Mr. Reyes follows:]
PREPARED STATEMENT OF HON. SILVESTRE REYES, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS
Good morning Mr. Chairman, Ranking Member Watts, members of the subcommittee. Thank you for providing me with the opportunity to speak on this issue. As a former Border Patrol Chief, I believe this is a critically important issue for our nation. More important, as a Member of Congress representing a border community, I am deeply interested in the effectiveness of the INS and the service it provides. We must ensure that this agency serves effectively serves those applying for citizenship and serves our citizens who rely on them to protect our borders and keep our communities safe.
After more than 26 years of service with the INS, I have practical, realistic solutions to the complex problems facing the INS. Last fall, I introduced legislation to separate the enforcement components of the INS from the service components of the agency. Since first arriving in Congress, I have consulted with my colleagues in the House and my former colleagues in the Border Patrol to develop a plan that will improve on our existing immigration policy. I believe that as soon as we separate the enforcement components from the service components, our national immigration policy will possess two vitally important aspects crucial to successresponsibility and accountability.
At the request of the Administration and the Commissioner, I did not aggressively push my legislation. I waited for them to develop a plan, a restructuring of the INS that would address my concerns. Unfortunately, their plan falls far short of my expectations. Their reorganization proposal will create a bottleneck at the topmuch like the proposal we had under former Commissioner McNary. To subscribe to this INS proposal is to subscribe to a plan that we already know will not work. Former Commissioner McNary's proposal came at a time when the agency's size was much smaller and much more manageable than the current size of the agencyand that plan failed miserably.
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My legislation is necessary and essential to ensure that we will be able to control our borders and deal with the influx of legal immigrants. It is my belief that the separation of service and enforcement will relieve the INS of a counterproductive mission. INS has a track record of not being able to effectively deal with its conflicting missions. We currently have more than five million illegal immigrants living in our nation. That is unacceptable. More than two million immigrants throughout the country are waiting to become citizens of the United States, the largest backlog of naturalization applications since the federal government began keeping records at the turn of the century. The issue of background checks has been exhausted and I will mention it only to highlight some of the problems the INS is still trying to correct. The INS has delayed issuing at least 75,000 green cards for legal immigrants due to the failure of equipment installed during 1997. Is this an example of the ''high-tech'' equipment that is designed to reduce the massive backlogs our legal immigrants must deal with?
My legislation addresses the inherent problem of our immigration servicemanagement. Removing the enforcement components from the INS will make their managers accountable for only naturalization and benefits adjudication. The gift of citizenship is precious and should be treated as such. The Director of the new enforcement agency will be held accountable for enforcementperiod. This new agency will consist of the Border Patrol, Inspections, Deportation & Detention, Investigations, and Intelligence, all maintaining their autonomy yet focused on one common goal. My legislation will improve service by limiting the scope of responsibilities and creating greater accountability. We must create an independent enforcement agency, with its funds and resources dedicated to enforcement. No longer will a lack of resources be an acceptable reason for not controlling our borders and removing those aliens deemed removable.
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The INS has neglected its enforcement duties in the past. Congress authorized, as a part of the 1996 Immigration Reform Act, an additional 1,000 Border Patrol agents each year until 2001. Yet last year, much to the disappointment of Congress and the American people, the INS requested only 500 additional agents. Members of Congress got involved and insisted that the INS hire the fully authorized amount. It is this type of situation I am seeking to avoid. My legislation eliminates the need for an agency to have to choose between conflicting priorities.
The bill I introduced last fall will change the way the INS functions by relieving them of their enforcement duties and allowing them to focus on naturalization and benefits adjudication. By doing so, we are placing the responsibility of providing timely service to those seeking legal admission to this country squarely with the INS. A backlog of more than two million people waiting on the INS is unacceptable. This legislation will create a more accountable adjudication process resulting in more efficient and better determinations of these benefits.
The problems associated with the service components of the INS cannot be solely attributed to a lack of resources. We cannot overlook the inherent problem with our immigration systemmanagement. During 1996 and 1997, the INS has grown by 52%, as a result of Congress providing unprecedented increases in resources for INSover $500 million each year in 1996 and 1997and the largest growth in any Department of Justice agency during this period. Congress has also provided the INS with increases of more than $95 million during the last two years for INS to handle an expected surge in naturalization applications.
To improve service delivery we must address the management failures on the service side of the INS. There appears to be a serious lack of accountability and even less discipline within the managerial ranks at INS with respect to implementing policies and procedures that are vital to maintaining integrity in the naturalization system. For example, after new policies and procedures were established to provide safeguards in the naturalization process and ensure that persons, including criminals, were not improperly provided citizenship, a follow-up audit revealed that only one of twenty-four field offices reviewed was complying with the new procedures. In addition, there were four versions of the memo outlining the new directives circulating at the different levels within INS. Again, this is unacceptable.
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An important point to stress is that under my plan, the INS would retain data and record keeping components of the immigration service. As the caretakers of immigration data, they would be compensated by the enforcement branch in a yet to be determined mannerperhaps on a per query basis or an allocated, specified lump sum. In addition to the natural and necessary interactions between the service and enforcement branches, allowing the INS to maintain the records will further strengthen the relationship.
As we enter the 21st Century and face new challenges, we must ensure that our law enforcement community is up to those challenges. The role of the U.S. Border Patrol and INS Inspectors in fighting narcotics trafficking and terrorist activities along our borders should not be overlooked or downplayed. They are our nation's first line of defense.
I am an original cosponsor of legislation introduced by Congressman Hunter which would increase the size of the Border Patrol to 20,000. This legislation will also provide the men and women of the Border Patrol with more flexibility while doing there jobs. I have introduced legislation which provides additional funding, personnel, and technology to the U.S. Customs and INS. These additional inspectors and high tech equipment will assist the INS and Customs in expediting traffic at our ports of entry while improving our enforcement efforts at the border and interior checkpoints.
I am continually working with my colleagues to improve our immigration system. For far too long, the U.S. border has been neglected and we are now paying the price for that neglect. I continue to work to find ways to improve the INS, to improve the services our nation's immigrants receive, to improve our efforts on the border, and to improve the morale of our agents.
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Increasing the physical presence of Border Patrol agents on the Southwest border to deter illegal crossings has been an integral part of our border control strategy but we must do more. In addition to placing agents in the field we must ensure they are properly equipped to control our borders. Last year alone, there were more than 1.5 million apprehensions of illegal aliens attempting to enter the United States along the Southwest border. As if this isn't enough, Border Patrol agents are asked to play an integral role in our nation's drug control strategy. Drug traffickers, attempting to supply the drugs to feed America's fifty billion dollar a year drug habit, have been increasingly dangerous and sophisticated. The men and women of the Border Patrol are out-manned and out-gunned.
The INS, with its mission overload, is forced to fund programs depending on the priority of the moment despite an unprecedented increase in resources. The priorities vary from border control, interior enforcement, or naturalization. It is time to correct this unacceptable style of management and misuse of funds. We cannot expect our Border Patrol agents to effectively combat illegal immigration and drug trafficking without providing them the means to do so. This newly created agency will be enforcement-oriented and will dedicate the necessary resources to control our borders.
I want to state very clearly that I do not believe that we should dismantle this agency. I introduced my legislation to improve an agency I devoted most of my adult life to. I do not want to abolish this agency. I do not believe our nation's immigrants would be well served by cutting and pasting our immigration services into a number of federal agencies and creating a bureaucratic mess. I'm concerned that they would be lost in the shuffle. I fear that they would be further neglected.
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I have real answers to serious problems facing our immigration service and I would be happy to answer any questions the committee may have. Thank you for your time.
Mr. SMITH. Thank you, Mr. Reyes. As you all know, we have a vote pending. Considering how comprehensive both your statements have been, I'm going to forego my questions and the other members may or may not want to do the same. I know you all have busy schedules, and I hate to ask you to come back after the vote. Would this be all right with the other membersif we go the second panel after the voteor would you all like to ask quick question now, perhaps, before we leave?
Mr. WATT. I had looked forward to asking a question, but I think I can ask it on the record and maybe talk to Mr. Rogers off the record. I don't think we need a response on the record. You may have started to answer it by introducing a bill yesterday, but one of my concerns is trying to define the appropriate roles of appropriations versus the authorizing committees in this process. And at some point, I'd like to get your thoughts about how that interaction ought to work on this particular issue, becauseand I know that's a very complex issuethere's been a tug of war going on for years and years between appropriators and authorizers that gets defined different ways at different times.
I think part of it has been addressed by your introduction of a bill. I presume that bill would come to our committee and we would have substantial input into that process, rather than having the appropriators write into an appropriations bill various kinds of restructuring mechanisms. But you can give us as much time as we have on that, or I can talk to you informally about it, either way.
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Mr. ROGERS. We can talk informally and I'd really cherish that, but I think whatever we do, it will have to a collaboration of all of us in a bipartisan way. I think it has to be both appropriators and authorizors clearly on both sides of the aisle before we can do anything else.
Mr. SMITH. Thank you, Mr. Rogers. Thank you, Mr. Reyes. I think we need to go vote and we will reconvene in 15 minutes.
I'm sorry, the gentleman from California, Mr. Berman.
Mr. BERMAN. Just before we leave, I appreciate the testimony very much. I mean, some of the criticisms of the agency were scathing, but they were never personal. And, in fact, to the extent they were personal, they were positive. The only point I want to make is some of this conflict, some of this tension and some of these problems are Congressionally imposed. Because we're so conflicted about what we want to do, we are pushing contradictory mandates at the exact same time all the time.
Mr. SMITH. Yes, yes, you're right.
Mr. SMITH. The subcommittee will be in order.
We have a number of people here. I just want to recognize and introduce Laura Baxter, who is to my right, who is the newest counsel and member of the Immigration Subcommittee, and to really put a lot of responsibility on her shoulders, this is the first hearing she's been in charge of. And so, that's why it's going so smoothly so far. [Laughter.]
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With that, Commissioner Meissner, we'll go to your statement.
STATEMENT OF HON. DORIS MEISSNER, COMMISSIONER, IMMIGRATION AND NATURALIZATION SERVICE
Ms. MEISSNER. Thank you, and I will also say hello to Laura in her new role. We were very pleased to have her with us at INS and look forward to working together with her and the committee as we have done in the past.
Thank you, Mr. Chairman, members of the subcommittee. I'm very pleased to be here to discuss the critical issue that is before us today. It is not really about the structure of INS, so much as it's about how this Nation best manages its immigration policies. That is a question with which I have grappled for many yearsfirst in the Ford and Carter Administrations, where I served in the Justice Department in an INS oversight capacity; next, for 5 years in the Reagan Administration at INS, serving as Acting Commissioner and Executive Associate Commissioner; then, from outside of government with the Carnegie Endowment; and now, back in the thick of it as the Commissioner for the last four-and-a-half years.
All of us basically agree on the diagnosis of INS' problems. We differ in varying degrees on the question of how to fix them. We must answer this important question and we should do it now. Why? Because the challenges that the Nation faces on the immigration front have changed dramatically. The growth of the global economy, the public policy concerns over immigration in our country, and the sweeping 1996 immigration law have made unprecedented demands upon INS for both enforcement and service.
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Not since the turn of the last century has the administration of the Nation's immigration laws posed so many challenges. Given the breadth of these changes, the fact that the agency structure must be consistent with the challenges it faces in the next century, and the clear willingness of Members of Congress to take up this issue, I welcome the opportunity to do something about it.
The sheer growth of the agency, having essentially doubled in size in the last 5 years, demands a change in structure. For this reason alone, maintaining the status quo is not an option. Mr. Chairman, I ask that the materials that the administration formally submitted in March on our proposal be made a part of the record today.
Mr. SMITH. Without objection.
[The information referred to follows:]
A FRAMEWORK FOR CHANGE:
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THE IMMIGRATION AND NATURALIZATION SERVICE
America has always been a nation of immigrants, and this Administration is proud of the significant progress we have made toward improving this Nation's immigration system. Over the last five years, the INS has worked hard to curtail illegal immigration through tougher border control, reform of a badly abused asylum system, and removing record numbers of criminal and other illegal aliens. The agency has also worked to redesign and strengthen the naturalization process. While the INS has made important progress, the Administration recognizes that the recent changes in the breadth and scope of the agency's mission require a rethinking of its structure.
In its final report to Congress last fall, the Commission on Immigration Reform (CIR) called for significant reform to our Nation's immigration system. The major thrust of the CIR's proposed reform would move many immigration functions to the Department of State and Labor and would consolidate all immigration enforcement into a new Federal law enforcement agency within the Department of Justice.
In response to the CIR's recommendations, the President asked the Domestic Policy Council (DPC) to ''evaluate carefully the [CIR] proposal and other reform options designed to improve the executive branch's administration of the Nation's immigration laws.'' In conducting this review, the DPC, working closely with the Office of Management and Budget, consulted with the Departments of Justice, Labor, and State, CIR staff, immigration experts and advocacy groups, and other White House offices, including the National Security Council. This review examined organizational and restructuring options including those formulated by the CIR and members of Congress. From this effort, the Administration established a new framework for reform, and the Justice Department contracted with a management consulting firm to provide an independent assessment of structural options and assist in making the Administration's framework ''operational.''
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THE ADMINISTRATION'S FRAMEWORK FOR CHANGE
The DPC review process concluded that the CIR report correctly diagnosed many of INS' longstanding problemsinsufficient accountability between field offices and headquarters, lack of consistency, need for greater professionalism, overlapping organizational relationships, and significant management weaknesses. These problems have hampered the INS' ability to effectively enforce our immigration laws both at our borders and in the interior, and efficiently provide immigration and citizenship services. Improving the ability of the INS to pursue these critical priorities must be the goal of any reform plan.
After careful consideration and study, the Administration concluded that the most effective way to achieve this goal is to implement dramatic and fundamental reforms within the INS. The Administration's reform plan untangles INS' overlapping and frequently confusing organizational structure and replaces it with two clear organizational chains of commandone for accomplishing its enforcement mission and one for providing services. Each operation would be headed by an Executive Associate Commissioner (EAC) who would report directly to the Commissioner through the Deputy Commissioner.
The plan will eliminate the current field structure in which regional district offices serve both enforcement and service functions and will replace it with separate enforcement and service offices that bring the right mix of staff and skills to local service caseload and enforcement needs. The result will be an INS organization with strengthened accountability and improved efficiency and effectiveness. The plan will allow each operation to focus its unique knowledge, skills, and abilities, while also retaining the essential integration functions needed to coordinate these operations.
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IMPROVED CUSTOMER-ORIENTED SERVICES
Creates new local service offices. The new immigration services operation would locate new service offices in immigrant communities around the country. These offices would focus on providing efficient and effective service, while maintaining the integrity of application processing. The offices would provide a range of services including: providing information to applicants, taking fingerprints and photographs, testing, and interviewing. Depending on community needs, some offices would be configured as full-service centers and others could serve as satellite locations to perform specific functions. These new service facilities would have a standard ''look and feel'' with clear signs, comfortable waiting rooms, evening and weekend hours, and other customer-friendly features.
Establishes accountability and clear lines of authority. The heads of the local service offices would report to an Area Service Director. The Area Service Director would report directly to the Executive Associate Commissioner for Immigration Services. Area Service Directors would have the flexibility to move case processing responsibilities among offices within their area to maximize efficiency.
Establishes clear standards for customer service. The Area Service Directors would be held accountable for meeting a nationally-established standard for timely processing and courteous service at all locations throughout the area.
Offers high-tech answers. This new framework provides high-tech ways for people to receive better service through remote service centers. As part of this restructuring effort, INS will re-examine the capabilities of the four service centers that handle the automated, bulk processing workload of the current district offices. These centers currently take applications, create electronic records of them, and conduct the preprocessing necessary before an examination is administered. Under the new structure, more work would be shifted to the service centers, thus allowing local offices to focus on core activities which require interaction with customers. In addition, the capabilities of the centralized phone centers which will provide information to applicants and the public will also be examined.
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A STRENGTHENED AND INTEGRATED ENFORCEMENT OPERATION
Establishing a single, coordinated enforcement function. The plan creates an operational chain of command dedicated solely to immigration enforcement, focuses comprehensively on illegal immigration problems at the border, and establishes better linkages with interior enforcement through a single point of accountability for performance. This approach would strengthen professionalism and improve results. This structure also would ensure priorities are shared and allow close coordination of day-to-day operations among each enforcement discipline.
Integrating enforcement and strengthening accountability. The new enforcement operations areas would combine all functions related to the enforcement of immigration laws. Each enforcement area would be organized according to four functions, and led by a single director. The Area Enforcement Director would report directly to the Executive Associate Commissioner for Enforcement.
Organizing enforcement areas by function. The enforcement areas would be organized around four functional goals: managing the border; inspections and management at ports of entry; investigations and removals; and detention.
1) Border Patrol. The Border Patrol would perform its current border management functions of deterring illegal immigration, apprehending illegal aliens, and working to dismantle smuggling rings.
2) Inspectors. By putting inspectors in the enforcement chain of command, the plan recognizes the critical role that ports of entry play in INS' border management strategy. This would give the ports a stronger role in the enforcement side of the agency and inspectors a direct reporting relationship to the Area Enforcement Director.
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3) Investigations and Removals. This plan would also bring investigators, intelligence officers, and deportation officers into one multi-disciplinary component to focus on removals and the pursuit of fraud, smuggling, and illegal employment at the workplace. Offices in the field would be located in areas with the greatest demand for those functionssimilar to the traditional Special or Resident Agent-in-Charge (SAC/RAC) law enforcement model used by the FBI.
4) Detention and Enforcement Support. This framework would improve the logistical coordination of transporting criminal and illegal aliens and detaining them in long-term facilities by centralizing the current district office detention and transportation operations. Under the new framework, this component would be better able to manage open bed space at INS and contract facilities and improve and monitor conditions at these facilities.
Providing the right tools. The ''shared support'' operation (e.g., records and data management, technological support, employee relations, and administrative support) would serve as the administrative and technological backbone upon which both enforcement and service operations depend under the new framework. Under this new structural framework each side of the agency has the appropriate administrative and technological tools to do its jobs in the most efficient and cost-effective way. These would range from new computer software systems that are ''user-friendly'' for enforcement agents and service officers, to appropriate training to strengthen professionalism.
Page 51 PREV PAGE TOP OF DOC Improving accountability. Under this restructuring plan the shared support function will be held accountable for meeting the needs of the enforcement and service operations in a timely and effective manner.
Managing essential records. An important cohesive function of the shared support operation is the management of all of INS' files and electronic databases. INS' records are the foundation of its workwhether in law enforcement or the provision of services to its customers. For example, the information contained in those records tells an INS deportation officer that an individual has overstayed his visa and the last address at which he might be found. It also tells an adjudicator whether a person has ever entered without inspection, therefore jeopardizing the alien's eligibility to become a legal permanent resident.
NEW ''STRATEGY'' OFFICE
Setting priorities and assessing results. The Administration's proposed structure includes the creation of a small, new ''strategy'' unit that would focus on setting priorities, long-range strategic planning, and policy development, as well as analyzing the effectiveness of their implementation. The unit would draw heavily on staff from headquarters and the field, as well as create subject area task forces to draw on the expertise of individuals accountable for each program.
NEW CHIEF FINANCIAL OFFICER ROLE
Enhancing accountability and efficiency. The new structure establishes a Chief Financial Officer to ensure effective allocation, control, and monitoring of the agency's finances. This would enhance accountability for managing the agency's resources and ensure that immigrant services and enforcement have clearly separated and defined resource streams.
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OTHER MANAGEMENT IMPROVEMENTS
INS recognizes that a fundamental restructuring is only one aspect of improving its ability to build a more effective organization. As part of its reform efforts, the agency also is planning management initiatives such as fundamentally redesigning outdated business processes and the creation of new training opportunities for employees.
Preserving our country's tradition as a Nation of laws and a Nation of immigrants requires one agency with clearly defined operational lines of authority and accountability. This new structure will allow our Nation to better control its borders and provide improved service and benefits to the immigrant community. The Administration's plan is a bold initiative to strengthen the INS' capacity to accomplish this critical mission.
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Page 54 PREV PAGE TOP OF DOC58801s.eps
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Ms. MEISSNER. Our proposal, which we have called a ''Framework for Change,'' is based on an intensive effort that INS undertook with Booz Allen and Hamilton, a management consulting firm that we hired to help us develop a plan that would fundamentally reform INS to it's core. The plan is sound, it is far reaching, and it is achievable. It's hallmark is simpleaccountability and results. It keeps immigration functions that must be carefully coordinated together under one roof in one agency.
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Let me explain. At the heart of the plan is the division of INS' enforcement and service functions into two distinct chains of command that will extend from the top of the agency in Washington, down to local field offices. One chain of command will concentrate on combating illegal immigration. We call that ''Enforcement Operations.'' The other chain of command will focus on providing improved services to immigrants and their families. We call that chain of command ''Immigrant Services.''
By separating these functions at every level, we will abolish the field structure that we have today. The Commissioner and the Deputy Commissioner will continue to be responsible for overall agency operations and for maintaining the balance between the agency's enforcement and service functions.
We will eliminate the three current regional offices and establish a structure of new Enforcement Area and Immigrant Services area offices to separately oversee local enforcement and local service activities throughout the country. This will give these offices manageable spans of control and alleviate the current difficulty of overseeing large numbers of staff with too many tasks in too many places all at the same time.
We will also eliminate the 33 district offices and instead create new smaller offices, designed to perform specialized functions within either the enforcement or the service areas. These offices will be located in the cities, towns, and areas with the greatest enforcement vulnerabilities or service caseloads.
Under the new structure, we will organize our operations around the core functions of INS enforcement and service, and we will specialize. We will be able to work with more urgency, sharper focus, and with improved coordination, as well as with staff who are better trained to handle their specific missions.
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The key elements in the enforcement chain of command are creating Enforcement Areas that allow managers to link the border, the ports of entry, and the interior of the country as part of a comprehensive set of problems to be addressed by drawing on all of us INS's enforcement capabilities.
This will allow us to take a more concerted approach to taking down smuggling and fraud rings, increasing removals of criminal and illegal aliens, as well as targeting cases of criminal violations in work sites. We will improve the logistics of all of our enforcement efforts by centralizing the coordination of detention space and transportation, key support requirements for any of our enforcement actions.
The entire new field structure is designed to meet the needs of a modern enforcement agency dealing with the kinds of crimes that span the Nation, and indeed, the world.
The new Immigrant Service structure also addresses the realities of the increasing customer demands that INS has faced for immigration services. Our proposal will enable INS to provide high levels of service at every office across the Nation on a consistent basis. Our services will be more convenient too.
We will establish immigrant services offices in immigrant communities around the country to provide an array of functions from fingerprinting to interviewing. Each will have a uniform look and feel with clear signs, comfortable waiting rooms, customer-friendly hours. We will recruit and train a cadre of service-oriented professionals whose performance is rated in part on responsiveness to customers. The directors of these offices will be held accountable for ensuring that their staffs meet nationally established standards for timely processing and courteous service.
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In order to achieve economies of scale and preserve the critical coordination of service and enforcement operations, we will create a ''Shared Support'' operation, the backbone for joint administrative and technological needs for both chains of command. For example, both sides must share the same record, the same file, on applicants for immigration services, as well as for individuals who have violated immigration laws.
Some say that all of these tasks are simply too overwhelming for one agency. I say that these tasks are too interconnected to be handled by more than one agency. Our immigration system has one mission, and taking apart the agency will only divide the problemsit will not solve them. Improving accountability is key and we cannot improve accountability by dispersing important functions into different agencies with different priorities, different procedures, and leadership.
In addition, the enforcement and services functions of the agency are interconnected and interdependent. Issues like detection and investigation of document fraud, involve both sides of the agency and require careful coordination. There is efficiency created by using each side to target these problems since they both share records and common processes. Finally, we strengthen law enforcement and improve customer service far more quickly and far more efficiently by splitting these functions up within one agency than by creating entirely new bureaucracies within other organizations.
Mr. Chairman, this restructuring plan is a fundamental reform. It changes the way INS does business from the top levels of the agency to the smallest offices in the field.
Page 59 PREV PAGE TOP OF DOC When I took over this agency 5 years ago, it had been so badly neglected, that we had to urgently perform triage on a number of problems that had seriously undermined immigration enforcement in this country altogether. As you know, the Southwest border was out of control, the asylum system was badly abused, and criminals and illegal aliens with deportation orders had little fear of ever actually being deported.
With the Administration's commitment and Congress' support, we've made tremendous progress addressing those urgent illegal immigration problem that face the agency. Now, it's time to fix the problems inherent in the agency itself. I sincerely hope that you will support us in moving forward.
As I said earlier, the world has changed, the challenges confronting INS have changed, and we are prepared to change too. Thank you.
[The prepared statement of Ms. Meissner follows:]
PREPARED STATEMENT OF HON. DORIS MEISSNER, COMMISSIONER, IMMIGRATION AND NATURALIZATION SERVICE
Mr. Chairman, and Members of the Subcommittee, today we are hearing from distinguished Members of this body and others who have put forward their ideas for change.
I am also pleased to be here to discuss this critical issue. It is not really about the structure of INS so much as it's about how this nation best manages it immigration policy.
Page 60 PREV PAGE TOP OF DOC And that is a question which I have grappled with for many years.
First, in the Ford and Carter administrations, where I served in the Justice Department overseeing INS.
Next, for five years in the Reagan administration at INS, serving as Acting Commissioner and as an Executive Associate Commissioner, and then from the sidelines at the Carnegie Endowment. And now, back in the thick of it, as Commissioner for the last four and a half years.
Fortunately, what is most striking about most of the proposals for change is not how different they are, but, in fact, how similar.
All of us basically agree on the diagnosis of INS' problems. We just differin varying degreeson how to fix them.
It is a certainly a question worth struggling over and worthy of a sound and serious debate. Particularly in 1998 and particularly as we approach the next century.
We must answer this important question now.
Not only because the performance of INS has clearly been impeded by an out-of-date structure that has hampered accountability and professionalism and allowed confusion about roles and responsibilities.
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But also because the challenges the nation faces on the immigration front have grown and changed dramatically in the last several yearseven since I began my tenure as Commissioner. So much so, that I think it is fair to say that not since the turn of the last century has the administration of the Nation's immigration laws posed so many challenges.
The global economy is increasing the flows of money, people and products across our borders. The opening up of Eastern Europe has led to new sources of immigrationand also new centers of organized crime that smuggle people and contraband into our country. Social, political and economic changes across the world in the last several years have put tremendous pressures on our borders.
Meanwhile the public policy debate over immigration in our own country helped to create an unprecedented interest in becoming a citizen.
And, as you know, Mr. Chairman, the sweeping 1996 immigration law has created broad new authorities and mandates for INSfor which we have created 60 new regulations to administer and trained nearly 20,000 employees to implement.
All of these changes have added up to exponentially increasing demands upon the INS for both enforcement and service.
Given the breadth of these changes, the fact that the agency's structure must be consistent with the challenges it faces in the next century and the clear willingness of Members of Congress to take up this issue, I welcome the opportunity to do something about it.
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Mr. Chairman you and your colleagues have expressed repeated frustration that INS does not seem to be changing fast enough. As the person in charge of bringing about change, I can honestly tell you, I share that frustration.
The sheer growth of the agencyhaving essentially doubled in size in less than five yearsdemands a change in structure.
Maintaining the status quo is clearly not an option.
THE ADMINISTRATION'S PROCESS
Last year, Congress asked the Attorney General and I to look at the proposal that the Commission on Immigration Reform put forward to improve the management of the federal immigration system, as well as alternatives, and to report back with a recommendation.
The Attorney General and I saw that request as a real opportunity for INS. And in fact, the Administration seized upon it.
At the President's direction, the Domestic Policy Council reviewed the Commission's proposal and others. Working with OMB and consulting with various Executive branch agencies and immigration experts outside of government, the DPC evaluated reform ideas. It concluded that the Commission had correctly diagnosed INS' problems, but had not found the right solution for solving them.
Page 63 PREV PAGE TOP OF DOC To complement that work, the Justice Department hired Booz Allen and Hamilton, a management consulting firm, to help us create a framework for change . . . to reconstruct the agency in ways that enable INS to vastly improve its enforcement of the law and its service to its customers.
That framework, which I will describe to you today, fundamentally reforms INS to its core.
The plan is sound. It is bold and it is feasible.
While it eliminates the field structure we have today, it keeps immigration functions that must be carefully coordinated together under one roof.
Its hallmark is simpleaccountability and results.
Accountability for reporting to a specific supervisor in a streamlined chain of command;
Accountability for treating our customers courteously and efficiently; and
Accountability for producing a clear-cut set of results.
We recognize that structure is not a panacea for all of INS' problems. It can't be. We know we can improve our management practices without structural change, and we must. But we also know that a simplified structure works.
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When accountability is built into structure, performance improves.
Let me explain.
THE ADMINISTRATION'S PROPOSAL
The plan essentially reconstructs INS. It builds a strengthened law enforcement operation and a new service-oriented organization within one agency by splitting enforcement and services functions into two distinct chains of command.
One will concentrate on combating illegal immigration at the border, in the interior and even outside the U.S. in source countries. The other will focus on providing improved services to immigrants and their families in the communities where they live.
We will separate these functions from the top level of the agency in Washington down to the field offices around the countrywith a Commissioner continuing to be responsible for overall agency operations.
We will eliminate the three current regional offices and establish a handful of new, supervisory Enforcement Area or Service Area offices to oversee either local enforcement or service activities throughout the country. This will give these supervisory offices more manageable spans of control and alleviate the current difficulty of overseeing large numbers of staff with too many tasks in too many states. By narrowing the scope of each supervisory office, we will strengthen oversight of the field and improve our ability to coordinate and shift resources among local offices to where the most immediate needs are.
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We will also eliminate the 33 district offices and instead, create new, smaller offices designed to perform specialized functions within either the enforcement or service arena. These offices will be located in the cities, towns or rural areas with the greatest enforcement vulnerabilities or service caseloads.
In order to preserve the critical coordination of service and enforcement operations, we will create a ''Shared Support'' operation to serve as the backbone for their joint administrative and technological needs. For example, both sides must share recordson applicants for immigration services and individuals who have violated immigration laws.
On the enforcement side, we will be better able to handle the inter-related challenges of managing the border, removing criminal and illegal aliens, enforcing worksite laws and dismantling smuggling and phony document rings because we will approach these problems in a fundamentally different way. The new structure will enable us to deal with them with more urgency, with sharper focus, with better trained personnel and with improved coordination.
For example, we will create ''Investigations and Removals'' offices around the country that will bring investigators, intelligence officers and deportation officers into one component. This will allow us to take a more multi-disciplinary and coordinated approach to increasing removals of criminal and illegal aliens, particularly in the interior of the U.S., taking down more smuggling and fraud rings, as well as better targeting cases with criminal violations in worksites.
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Along these same lines, improved coordination among the enforcement disciplines will benefit the operation of the ports of entry, particularly since the role of the ports in stopping illegal activity has increased. We will put the ports clearly in the enforcement chain of command with fewer layers through which they need to report. This will allow better coordination among the ports, as well as with other INS enforcement officers in order to improve their look-outs for criminals and terrorists and to detect fraudulent document and smuggling operations.
The Border Patrol will improve its coordination with investigators, intelligence officers and inspectors on whom they must increasingly rely. This integrated approach will strengthen its hand in the fight against the increasingly sophisticated and well-organized crime syndicates attempting to bring people and contraband across the border.
In the last several years, INS has apprehended and removed record numbers of criminal and illegal aliensefforts requiring quick and efficient coordination for transporting individuals and detaining them. The restructuring will improve the logistics of detention and removals by creating a handful of new offices that will provide ''Detention and Enforcement Support'' throughout the fieldinstead of having thirty-some offices each with responsibilities for these functions. These centralized offices will be better able to track open bed space at detention facilities and improve and monitor the conditions in them.
The new field structure is designed to meet the needs of a modern enforcement agency dealing with the kinds of crimes that span the nation and the world.
Page 67 PREV PAGE TOP OF DOCIMMIGRANT SERVICES
The new customer service structure also addresses the realities of the increasing demands INS has faced for immigration services. Our proposal will enable INS to provide high levels of service at every office across the nation on a consistent basis. Our customers will no longer be advantaged or disadvantaged in dealing with INS based on where they live. Applicants in Charlotte will be able to expect the same standard of service as applicants in San Antonio.
We will establish Customer Service offices around the country, providing an array of functions from fingerprinting to interviewing and located in immigrant communities to make it more convenient for people to access INS.
These offices will have a consistent look and feel nationwide, with clear signs, comfortable waiting rooms and customer friendly hours.
We will develop and train a cadre of service oriented professionals whose performance is rated, in part, on responsiveness to customers. The directors of these offices will be held accountable for ensuring that their staffs meet nationally-established standards for timely processing and courteous service.
Each local facility will be overseen by an office with the ability to move workloads among and between local counterparts in order to ensure that each office can meet its needs.
The new framework also provides high-tech ways for people to receive better service through remote service centers. These centers currently take applications, create electronic records of them, and conduct the pre-processing necessary before an examination is administered. Under the new structure, more work would be shifted to the service centers, thus allowing local offices to focus on core activities which require interaction with customers.
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WHY ONE ROOF
Some say that all that the INS must do is simply too overwhelming for one agency.
I say these tasks are too interconnected to be handled by more than one agency. Our immigration system has one mission and taking apart the agency will only divide the problems, not solve them. The reasons why are: accountability, synergy and efficiency
Improving accountability is key. And we simply cannot improve accountability by dispersing important functions into different agencies with different priorities, procedures and leadership.
In addition, the enforcement and services functions of the agency are inter-connected and interdependent. Issues like the detection and investigation of document fraud involve both sides of the agency and require careful coordination between them.
There is synergy created by using each side to target these problems since they both share records and common processes. In the last several years, INS has developed and installed a range of sophisticated, integrated technology systems for service provision and enforcement purposes. Recordkeeping systems that four years ago existed only on paper in individual files are being automated and centralized in order to be accessible to any appropriate INS official throughout the country. The federal government should get a full return on the investment we have made in building these common integrated platforms.
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Finally, we can strengthen law enforcement and improve customer service far more quickly and efficiently by splitting these functions up within one agency, than by creating entirely new bureaucracies within other organizations.
Mr. Chairman, our restructuring plan is a common sense approach to INS' problems.
It fundamentally changes the way INS conducts business from the top levels of the agency to the smallest offices in the field.
As the person in charge of setting the agency's priorities, I can tell you that now is the time.
When I took over the agency five years ago, it had been so badly neglected that we had to urgently triage a number of problems that had seriously undermined immigration enforcement in this country altogether. As you know, the Southwest border was completely out of control, the asylum system was badly abused and criminals and illegal aliens with deportation orders had little fear of ever actually being deported.
With the Administration's commitment and Congress' support, we have made tremendous progress addressing those urgent illegal immigration problems that face the agency. Now, we can devote attention to fixing the problems inherent in the agency itself.
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The difficulties we encountered trying to keep up with the crush of citizenship applications and maintain the integrity of the process was a stark reminder of our need to reassess our management practices and our structure. Under this proposal, naturalization will get the separate care and handling that it requires.
We project that we can begin putting this new structure into place immediately and have it completed within three years.
I sincerely hope we will earn your support for moving forward.
As I said earlier, the world has changed, the challenges confronting INS have changed, now we must change too.
Mr. SMITH. Thank you, Commissioner Meissner. Commissioner Meissner, you heard awhile ago Congressman Reyes and Congressman Rogers suggest that the enforcement components of the INS should go to the Department of Justice in a separate agency there. You mentioned during your testimony that you thought this would just be dividing the problem, it wouldn't solve the problem.
I think the Congressman, if they were here, would say it's certainly an improvement over what now exists, in part because it has the advantage of not dividing the problem, but isolating the problem, and therefore making it easier and better and more directly deal with it.
Page 71 PREV PAGE TOP OF DOC So, other than the theoretical, that it might divide the problem, what's your objection to isolating the problem and having a separate agency within DOJ take over the enforcement components?
Ms. MEISSNER. What we are suggesting is two separate organizations within one INS. It is within the Justice Department. It is accepting the notion and endorsing the notion that the service and enforcement responsibilities of the agency are distinct and need to function in separate chains of command, but that they need to be coordinated within one organization from the standpoint of shared records, shared budgeting, shared training and recruitment, the economies of scale, that would have to be replicated if you divide into separate bureaus or separate organizations.
In addition, we believe that there is an issue of balance between the service functions and the enforcement functions from the policy making standpoint. And we think that the resolution of those issues of balance is better taken care of within an organization headed by a Commissioner that is focused entirely on the immigration mission, as compared with resolving those dilemmas at the level of the Deputy Attorney General or the Attorney General.
Mr. SMITH. Commissioner Meissner, the restructuring that you propose is a result of a study conducted by Booz Allen consultantsis that right?
Ms. MEISSNER. We brought Booz Allen and Hamilton in to work with us on this proposal, that's correct.
Mr. SMITH. When you brought Booz Allen in, was there a suggestion to them that whatever they recommended, that the agency be kept in tact, as opposed to having components go to other agencies?
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Ms. MEISSNER. The work that Booz Allen and Hamilton did with us allowed them free reign. We asked them to look at our responsibilities, our mission, the way that we were structured, and they were free to recommend a dispersal of those functions, or any other kind of arrangement.
Mr. SMITH. And there was never any suggestion by you or others that they not dismantle the INS?
Ms. MEISSNER. They were asked to look at what
Mr. SMITH. No, I know thatand I don't want to quibble with youbut that's not responsive. Was there any suggestion by you or anyone you know to Booz Allen that they not break up the INS, that they not recommend that variousfor instance, the enforcement componentgo to another agency?
Ms. MEISSNER. There was not. Now let me just clarify that by saying that I was very clear with them that my position was that it made sense to keep the INS as one agency. They had, however, free hand to look at what the best solution to the problem was.
Mr. SMITH. Knowing who was paying their bill and how they felt, you felt that they had free reign?
Ms. MEISSNER. No, I want to be very clear about that. Because the statement of workwe put this out for bidand the statement of work was very clear on that point. Had they come back and said we have looked at your responsibilities, we seriously believe that it needs to be done differently, we would have been open to that. On the contrary, they reached the conclusion fairly early on that these functions indeed were interdependent and that it made sense from a mission, as well as a cost standpoint, to maintain one agency.
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Mr. SMITH. Is the proposal that you're making, which, as you said, is sort of on the heels of the proposal of Booz Allen, is that supported by the INS district directors as a whole and by the Border Patrol chiefs, or not?
Ms. MEISSNER. The Border Patrol chiefs and the INS district directors have not formally spoken on the issue.
Mr. SMITH. Have they conveyed their opinion informally, if they haven't formally spoken?
Ms. MEISSNER. We have had a great deal of discussion within the INS on this issue. I created a field advisory group to work with Booz Allen, so that there would be field input. I believe
Mr. SMITH. Based on that discussion, how do you think they feel?
Ms. MEISSNER. I believe that there is a full range of views within the INS on this.
Mr. SMITH. Do you think that there is a preponderance of views held by a majority of the chiefs or district directors?
Ms. MEISSNER. I don't believe so. I think that there is a full range of views. I do believe that the district directors' association, who of course will be testifying, will share with you their views. But mythe feedback that I get is that there is an openness.
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Mr. SMITH. One last question. Do you think their views are representative of the district directors as a whole?
Ms. MEISSNER. I think you would need to ask them that question. I have not asked people to sign up one way or the other. I've involved them
Mr. SMITH. Okay, I'll ask them that.
Ms. MEISSNER [continuing]. I've given them very full opportunity for input. But ultimately, I have taken the responsibility of making the decisions, which is my job.
Mr. SMITH. Thank you, Commissioner. The gentlewoman from California, Ms. Lofgren, is recognized.
Ms. LOFGREN. Thank you, Mr. Chairman. I don't have a lot of questions. I understand you may not have the data today, but I wanted to ask you to address the increase in full time permanent employees. We have a chart that shows a 43 percent increase from 1994 to the present. I'm interested in finding out whether these numbers reflect actual employment or whether this number includes funded positions that are vacant. I would like to have a more detailed report on not only the district offices, but the sub-offices in particular.
I don't want to be too parochial, but I have a special interest in the San Jose sub-office, which is backlogged many years in adjudications. It is a great concern of mine.
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I don't have a firm opinion yet on what should be done or whether any of these proposals will make a positive difference. I will sayyou are a Commissioner who has the most expertise in immigration law. I remember years ago when I taught immigration law, I used your book in my course. And it was very good. And you did come into an agency that had lots of problems. These are not problems of your making. I think we all realize that.
Having said that, when I go home and talk to people and listen to my constituents, their solution is to blow the INS up. People are so angry about the way they're treated and the operation of the agency. I feel the same way. The only question is, what will make it better?
I notice that the Chairman has distributed the funding increase. From 1994 to current, the INS has received over a 200 percent increase in funding. Maybe money is the problem but perhaps it isn't. In San Jose, you can call the INS public numbersomething I actually did, and never get through. I talked to a businessman who tried for 2 and 1/2 days to get through and never did. People who have their fingerprints taken have to take them two and three times, because the paperwork is so delayed that the fingerprint validity has expired. This causes more work not only for the INS, but for the FBI.
This is a nightmare. The INS is the worst Federal agency. Somebody has to be the worst. And I guess you have the pleasure of presiding over the worst. I'm just so frustrated. And don't see how changing the structure alone is going to improve a situation that is completely out of hand and completely out of control. Maybe you can address that.
Page 76 PREV PAGE TOP OF DOC Ms. MEISSNER. Yes, I would like to comment on that. But, first let me say we do have that information on the San Jose office and we will be getting it to you.
The issue of funding of this agency is an important issue because a lot of funds have come to the agency, but we also need to understand how those funds have come and for what they have come for. The agency is funded both by appropriated funds and by fees. The fees for services which deals with the adjudications, all of our benefit decisions, our telephones, that is all supported by fee receiptsthat is not appropriated funding by the Congress.
Where the Congress has appropriated the funds, the very large amounts that have been appropriated over the last 4 years, have gone primarily for enforcement activitiesvery important enforcement activities, increased border enforcement, increased removals capability, reform of the asylum system. Those functionsand obviously modernization, infrastructure that goes with thatbut those functions where the funding has been given to the Immigration Service, we have a very strong record in making very strong and significant improvements.
The funding for the things that are frustrating people now and they frustrate me more than anybody elsethe phones, the lines, the backlogsthat is all funding that comes in fees from the applicants themselves. We use that funding, but we also must ask the Congress for increases in the levels of the funding.
In other words, when we have a huge surge in applications as we have had for citizenship over the last 4 yearsa four-fold increase in the levels of citizenship applicationsin order to spend the money that we get with those applications, we have to ask the Congress through reprogramming authorities. There are often delays in that process. It is not easy to turn that funding immediately into increased staffing, increased phone capability, etc. But we have been moving as quickly as we can to do so.
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The answers where adjudications are concerned are clearly partly structure, but many of the answers are not in structure. There is only so far that structure can go to solve problems that are management problems. We think this structural proposal will help significantly in dealing with services to immigrants because it will create accountability for that function alone and not have it co-mingled with other responsibilities that key field managers hold.
We believe that it will help significantly because it will create a focus on a customer orientation, on that single responsibility, it will give us the wherewithal to specialize and develop a cadre of professionals in the agency whose only responsibility is to deal with adjudications and to deal in a modern service-oriented climate, which has not been the case in the INS and has not been the case in the agency for 20 years.
So this structural proposal takes us an important distance in meeting the objectives that you and I would want to meet, but it is not a panacea.
Ms. LOFGREN. What I would appreciate in writing is the plan that is currently being pursued by the agency for technology improvementsI'm sure other committee members would like this as well. I understand there may be some appropriations glitches. I would like to know what we need to do to assist, if Congressional assistance is part of the answer.
I don't want to unfairly tar all of the employees of the agency, many of whom are hardworking, diligent, caring peoplebut there is a culture problem. You and I have discussed this. I and members of my own staff have received treatment that is sub par, rude, abusive. That is completely unacceptable. What is your plan, with or without this structure to get some accountability for misbehavior? Thank you.
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Ms. MEISSNER. We will pleased to do that, and what I will put on the top of that list in terms of our plan is the need for us to centralize our records in one place, so that we can overcome this problem of lost files. That is the single biggest handicap that we have agency-wide. We have funding for centralizing our records. It simply needs now to be approved from a location standpoint by the Congress, and that would move us forward, in the most dramatic way, one single step.
Mr. SMITH. Thank you, Ms. Lofgren. The gentleman from Indiana, Mr. Pease, is recognized.
Mr. PEASE. Thank you, Mr. Chairman. I do not have questions for the Commissioner. I do wish to say though that I'm grateful for the chairman in scheduling the hearing. I have spent a good deal of time with Congressman Reyes and some time with Commissioner Meissner as well, discussing the various proposals regarding restructuring of the services provided by INS. I believe that each of them is sincere in his/her efforts to try and resolve this problem. I have drawn no conclusions on either of the proposals at this point. The only conclusion I have drawn is that something has to change, and you've said this.
My office has not had as much experience in this areas as Congresswoman Lofgren. Maybe we've done a handful of cases in the last year where we've dealt directly with INS on behalf of people in the district. But in two of those either five or six cases, files have been lost. In one case, twice. And if it's frustrating for us, I can only imagine how frustrating it must be for the people you're trying to serve and for the people in your agency that are trying to be responsible.
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So, I welcome the fact that you have taken the initiative. I'm grateful for the time that you and your staff have spent with me and my staff. I am listening carefully as well to Congressman Reyes and his proposals and I hope that we'll be able soon to come to some resolution and move forward. Thank you.
Mr. SMITH. Thank you, Mr. Pease. The gentleman from Utah, Mr. Cannon is recognized.
Mr. CANNON. Thank you, Mr. Chairman. Let me just start by reiterating a couple points that Mr. Rogers made. First of all, this is not a Democrat or Republican problem. It's a big problem that you've inherited. Second, I wanted to reiterate Mr. Rogers' statement of confidence in you and the quality that you bring to a difficult job. This is a matter of concern.
One of the really difficult problems that has been ignored in the past, and we've talked about this, is the interior enforcement for INS. And you'll recall a year ago or so, you were out in Utah with Senator Hatch and the Attorney General, the director of the FBI, and others, talking about this. Can you give us an update on what's happened with some of the ideas that were developed at that conference, particularly for Utah, but also for the other interior States?
Ms. MEISSNER. Let me begin by saying that that conference was a really marvelous opportunity to deal with these issues in the way that they manifest for communities all around the country. The follow-up to that conference has been on a number of fronts, but the most critical, I think, is in the form of a memorandum of understanding that we have been working with Salt Lake City officials to complete.
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It is a memorandum of understanding that would for the first time nail down the delegation of authority to State and local officials for enforcing the immigration laws that were contained 1996 Immigration Act. That's a very important new provision. It's one that I think everybody realizes must be done extremely carefully, but we are in the final stages now of those discussions with Salt Lake City. Because, what the Attorney General and I pledged to at the Utah Crime Summit, was using Salt Lake City as the pilot for testing that new provision in the immigration law.
We will be, I believe within the next several weeks, announcing the conclusion of that set of discussions and then we will be testing that in Salt Lake. That will give us an opportunity to work out in that area of the country some better approaches and some more comprehensive approaches to the issues of interior enforcement.
What we are finding, of course, is that the more effective we are in our border enforcement, and we are increasingly effective in our border enforcement, the more we see patterns changing in the interior of the country where transportation of illegal aliens is concerned, where the behavior and the recklessness of smugglers is concerned, and where we're finding illegal employment, the magnet for illegal immigration, arising in very new places. States like Utah, states like Nebraska, states like Iowa, states like rural Maryland or Northwest Arkansasthese are places that have not experienced the phenomenon of illegal immigration before.
And so it is very difficult to handle at a local level, but it is also very difficult to handle from the standpoint of the Immigration Service. Because we are not dispersed in all of those locations, so we need the leverage our resources. We have a variety of ideas and ways that we're going about doing that, but this MOU is an important one and the issue of structure that we're discussing in this hearing really is intended to support those activities.
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The idea of an Enforcement Operations organization chain of command, distinct within the immigration service, would give us much greater mobility and flexibility around the country, and would give us a much better way to connect what's happening at the border with the results of that when people do get by in the interior, the exchange of intelligence, developing information, that allow us to make cases more effectively, patterning the trends that they're changing and then moving resources quickly to respond.
Mr. CANNON. This focus on flexibility and the ability to respond quickly, of course, is, I think, and I've said in the past, as you know, very, very important. Because the people who are coming in go where the opportunities are. For instance, in Salt Lake, you may know that 80 percent of our drug bustsour felony drug bustsare illegal aliens. Often they're trying to just get a free ticket back to Mexico. Utah's been targeted because we don't have jails, and other communities will be targeted as weaknesses appear in those areas.
In last year's Commerce Justice State Appropriations Bill, there was language that required the INS and the Marshal Service to evaluate the need for and the feasibility of a detention facility in Utah to hold some of the apprehended illegals that have been committing crimes there. We haven't seen that evaluation yet. Is thatdo you know if that's coming along?
Ms. MEISSNER. That is coming along. That is actually a broad Justice Department effort in which the Marshals, the Bureau of Prisons, and the Immigration Service is involved. In the mean time, however, we have made some very effective arrangements that provide jail space in a number of other locales and we have some much better transportation mechanisms to move those people who are arrested to that jail space. So, there has actually been a great deal of progress on supporting local officials in our being able to house people that are criminals and need incarceration.
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Mr. CANNON. I think that is in the end the most important thing we can do to stop some of the violent and drug related crimes and felonies. Let me just say that your efforts are very much appreciated in Salt Lake City. As I was driving up to the airport, this was Monday, the Mayor of Salt Lake City was on the radio singing the praises of the INS. Something that is not very common, I suspect, in your experience. But they have already seen some of the benefits and we appreciate that greatly. Thank you.
Ms. MEISSNER. Thank you, and thank you for passing that on. We have been working very hard with local officials, and the Mayor has been a very good partner. Thank you.
Mr. SMITH. The gentleman from North Carolina, Mr. Watt, is recognized.
Mr. WATT. Thank you, Mr. Chairman. I'm happy I made it back in time, and I apologize to the Commissioner for having to slip out for a few minutes. As the Commissioner knows, I have been very interested in the backlog and the benefits services issues. I wonder if you might spend a minute or two just talking about how the INS' proposed restructuring would, as you see it, address the benefits issues. I think I understand the arguments related to the enforcement side, and I understand they're just as important as the benefits issues, but I'm more interested in having you flesh out for the record how you think your proposed restructuring would help address the backlog issues and the benefits issues.
Ms. MEISSNER. Thank you. As I said, we're talking in this proposal about two distinct chains of command, one for Immigrant Services, one for Enforcement Operations. The Immigrant Services chain of command is clearly for the purposes of focusing on immigrant services as a critical mission for the immigration service in a way that has never happened traditionally in the organization.
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The adjudications services work of INS has, I think by everybody's experience inside of the agency and outside of the agency, taken a backseat to the enforcement work of the agency. This immigrant services chain of command, setting up a distinct separate structure within INS to handle adjudications solely, is the responseis our attempt to overcome that history.
What we would get with that is first and foremost accountability for the immigrant services work, without it having to be a tradeoff issue all the time for our local managers every day. We would, in addition to that, get a dedicated cadre of professionals whose sole job would be to be concerned with benefits, and granting benefits, and they would not be subject to the pressures of the split personality that tends to afflict many of our offices and many of our personnel around the country.
We would alsoI think the best way really to describe it is for me to refer to what we have done with our asylum system. Our asylum system is a smaller example of what we really envision with immigrant services. It is a specialized activity within the immigration service, where we have offices that are dedicated solely to asylum adjudications, where we have recruited and trained people solely to do asylum interviews and adjudications, where we have put a whole range of technology and research in the hands of those officers so they can do their jobs effectively, and we have basically as a result fixed the asylum abuse that existed 4 years ago when we took the issue on. That culture that has been developed among the asylum offices, the look and feel of offices being similar around the country, of very high quality professionalism that we've been able to inculcate in the asylum system by going to specialization, that is what we envision for immigrant services. And we envision offices being located in immigrant communities, as close as possible to where are applicants are, when they need to have face-to-face contact with usthey need that for interviews, fingerprints, and so forth.
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Mr. WATT. Let me pick up from thereyou've actually segued into my next issue. I'm a little reluctant to get into this level of detail, because I think we should first deal with the more global issues before looking at micro-managing implementation down the line. As I understand your proposal, at least the details that I have seen of it, you have only four service centers and three phone centers, which seems to me to be more of a centralization, rather than a dispersal of offices. Am I misunderstanding that?
Ms. MEISSNER. No, because what I would have said next, after talking about local offices, is that what we envision is a pattern of local offices where you need face-to-face contact with us, or where we need face-to-face contact with you.
Mr. WATT. How many of those would there be?
Ms. MEISSNER. We don't know yet. That's part of the more detailed planning that needs to take place now. But those local offices would be backed up by large processing capabilities, both for phones and for automation needs, for files and electronic databases, as well as for adjudications' decisions, as we presently do when you don't need face-to-face contact.
So the effort here would be to try to do as much business as possible through the mail and over the telephone, through non-personal interaction, and then set up a local structure of offices where you need the personal interaction. The two need to work together.
And so what you need in an organization like that is a variety of skills that are able to do huge processing operations, complex technological forward-looking automation, systems management, as well as customer orientation on the ground, and the face-to-face contact that is required for some of our decision making.
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Mr. WATT. Thank you, Mr. Chairman, I think my time has expired. I appreciate the Commissioner being here and glad we gave her the opportunity to lay out her vision of the new plan.
Ms. MEISSNER. Thank you.
Mr. SMITH. Thank you, Mr. Watt. Mr. Pease, the gentleman from Indiana is recognized.
Mr. PEASE. Thank you, Mr. Chairman. I intended to add this in my earlier time and wanted to make sure I did not neglect it. I've been one who's criticized the agency a number of times. I've tried to do that constructively, but I have been a critic. I did, therefore, want to point out that if I did not make myself clear, let me make myself clear: I do believe the Commissioner is trying hard, is very sincere in her efforts, and is an exemplar of service. And I can tell members of the committee and should say publicly, have personal experience in that regard, where my office called and asked if we could talk with her about a number of things, and she arrangedand I'm still impressed by thisat our request, to come at 5:30 on a Friday night. That was the only time we had. And she came and spent an hour with uswith some of her staff and some of my staffin order to make sure our questions got answered. And if everybody worked that hard and had that commitment, we'd be a lot better off. I'm very grateful.
Ms. MEISSNER. Thank you.
Page 86 PREV PAGE TOP OF DOC Mr. SMITH. Thank you, Mr. Pease. Commissioner, I don't think we have any other questions. Thank you for being here. We appreciate your input.
Ms. MEISSNER. Thank you.
Mr. SMITH. Commissioner, before you leave, I have a written question, and if a member of your staff could come up, I'd like to give it to them. And if I could get a response next week, that would be great.
[The information referred to follows:]
Recently, during the course of the Subcommittee investigation of a private bill, both the I.N.S. agent who worked on the case and headquarters informed the Subcommittee that all the administrative remedies of the individual had not be pursuedand there was a recent Interim Decision the individual should file a motion to reopen based upon. The Subcommittee informed the sponsor of that bill, the sponsor informed the individual of the need for them to file the motion, and the claimant filed the motion, only to have it denied as untimely.
As you know the I.N.S. can enter into a motion with a claimant to waive a timeliness issue to allow a motion to be considered by the BIA. The Subcommittee requested that the I.N.S. enter into such a motion, and the sponsor met with you personally to ask that you facilitate the individual ability to have the BIA review his case based on the recent interim decision. You refused because, in your general counsel's opinion (not the BIA's), the individual would not win. Two entities within I.N.S., an attorney who was formerly with your general counsel office and who is now a immigration judge on the BIA believed the individual could win.
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The Subcommittee, sponsor, and individual relied in good faith on the information provided by the I.N.S. as to how to proceed and yet you and your General Counsel refuse to facilitate the very actions recommended by the Service.
Who can we count on within the I.N.S. to give us accurate information that you will stand by and facilitate?
Hon. LAMAR SMITH, Chairman,
|U.S. Department of Justice,|
|Immigration and Naturalization Service,|
|Washington, DC, June 16, 1998.|
Subcommittee on Immigration and Claims,
Committee on the Judiciary,
House of Representatives, Washington, DC.
DEAR MR. CHAIRMAN: We are writing to you regarding the case of Mr. Larry Errol Pieterse, and the Immigration and Naturalization Service's (INS) position on joining in any subsequent Motion to Reopen (MTR) proceedings filed by Mr. Pieterse with the Board of Immigration Appeals (BIA).
A review of the record in this case indicates that Mr. Pieterse, a native and citizen of South Africa, became a legal permanent resident of the United States on November 3, 1981. On April 25, 1984, Mr. Pieterse appeared before the Circuit Court, Duval County, Florida, and pled guilty to possession of drug paraphernalia. Adjudication of guilt was withheld and Mr. Pieterse was sentenced to a period of probation, payment of fines, and community service. Following a full hearing before an Immigration Judge in Atlanta, Georgia, Mr. Pieterse was ordered deported on June 13, 1989. His appeal to the BIA was dismissed in 1990, and two subsequent MTRs were denied.
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In 1991, the Governor of Florida granted Mr. Pieterse a full pardon for his 1983 conviction. The BIA denied a third MTR in 1991, stating that, for purposes of the Immigration and Nationality Act (INA), a state pardon does not eradicate a drug-related conviction. Mr. Pieterse attempted a fourth MTR in 1997, but was unsuccessful due, in part, to new Executive Office for Immigration Review (EOIR) rules requiring MTRs to be filed within 90 days of a final order, and limiting the number of MTRs to one. Finally, several private bills have been introduced on behalf of Mr. Pieterse in the last few Congresses. The INS most recently provided a report on the private bill to benefit Mr. Pieterse on July 22, 1997.
You have suggested that Mr. Pieterse file another Motion to Reopen his proceedings in order to apply for relief. Notwithstanding the fact that Mr. Pieterse's MTR would be considered untimely under the regulations, the EOIR may consider such a motion if the INS joins the alien in asking that it do so. Among the factors we consider in deciding whether to join such a motion is the availability of discretionary relief under the INA. The compelling humanitarian nature of Mr. Pieterse's circumstances have caused us to look carefully at the INA and INS regulations for some form of relief. Mr. Pieterse is married to a U.S. citizen, he has had no convictions since 1984, and he has been an outstanding member of his community. If discretionary relief were available, Mr. Pieterse would seem to be the model for a favorable exercise of that discretion. In fact, the only apparent blemish on his record is a conviction for what some would characterize as a relatively minor crimepossession of drug paraphernalia, to wit: two straw snorters.
The problem is the very nature of his offense places Mr. Pieterse at a relatively unique legal disadvantage under the statute. The offense was sufficiently serious to render him deportable. Assuming that Mr. Pieterse filed a MTR, one of the factors that he would need to establish is that he is statutorily eligible for the relief sought. Mr. Pieterse appears statutorily ineligible for relief from deportation, a fact that the INS is without any discretion to alter. He is apparently seeking relief in the form of adjustment of status through his new United States citizen wife. Under section 212(h) of the INA, as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Mr. Pieterse is statutorily barred from receiving the waiver of inadmissibility his drug conviction necessitates. In addition, Mr. Pieterse is not eligible for cancellation of removal under section 240A(a) of the amended INA since that form of relief is only available for aliens whose proceedings were commenced on or after April 1, 1997. Furthermore, Mr. Pieterse is ineligible for suspension of deportation under the former INA section 244(a)(2) (criminal suspension) which applies to deportation cases commenced prior to April 1, 1997, since that section requires that Mr. Pieterse demonstrate continuous physical presence (CPP) in the United States for 10 years prior to the commission of his crime. Under section 309(c)(5)(A) of IIRIRA, Mr. Pieterse stopped accruing CPP at the time of the commission of his crime.
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Mr. Pieterse is also barred from relief under former section 212(c) of the INA, pursuant to section 440(d) of the Antiterrorism and Effective Death Penalty Act of 1996, expanding the enumerated criminal offenses which make the applicant ineligible for consideration for relief under that section.
Regardless of the aforementioned legal provisions, Mr. Pieterse believes that he qualifies for first offender treatment under Matter of Manrique, Interim Decision 3250 (BIA 1995), and, therefore, that he is eligible for relief from deportation. However, Manrique applies only to persons who, if convicted under federal rather than state law, would have been covered by the Federal first offender statute. That statute applies to persons convicted of possession of a controlled substance, but not possession of drug paraphernalia. In light of Mr. Pieterse's ineligibility for relief from deportation, the INS believes that joining a MTR filed on Mr. Pieterse's behalf would be inappropriate and ineffective in affording him permanent status.
Furthermore, although Florida Governor Lawton Chiles granted Mr. Pieterse a full pardon on June 11, 1991, the BIA has previously concluded that this pardon is not effective in eliminating a drug conviction for purposes of deportability under the then existing section 241(a)(11) of the INA, 8 U.S.C. section 1251(a)(11). See former section241(b) of the INA; Matter of Moeller, 16 I&N Dec. 65 (BIA 1976). This legal barrier to Mr. Pieterse's successfully winning a MTR existed prior to the enactment of IIRIRA, and has consistently prevented him from overturning, or revisiting, the Immigration Judge's now final deportation order. The INS is again without authority to alter this legal provision, and its impact on Mr. Pieterse's case. However, given the circumstances of Mr. Pieterse's case, the INS would not oppose a private bill filed on his behalf.
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Finally, you have questioned why one INS employee previously indicated that Mr. Pieterse might be able to file a MTR with the BIA based on ''a recent Interim Decision,'' only to have the General Counsel's office later refuse to facilitate this same course of action. We offer our sincere apology for this apparent error. After review by the General Counsel's office, it became clear that this was not a legally supportable path to pursue.
I hope that this letter responds to your concerns. As always, we value our mutual commitment to ensuring integrity in the administrative process, and welcome your input toward that shared goal. Please let me know if I may be of assistance in the future.
|Doris Meissner, Commissioner.|
Mr. SMITH. If the members of the third panel would please come forward and I'll introduce you as you sit down. Robert L. Brown, Chairman, Immigration Directors' Association; Susan Martin, former Director, Commission on Immigration Reform; Demetrios Papademetriou, Senior Associate, International Migration Policy Program, Carnegie Endowment for International Peace; Richard Gallo, First Vice President, Federal Law Enforcement Officers Association, and Diana Aviv, Director, Council of Jewish Federations.
We welcome you all. Because of the size of the panel and because of an effort on our part to have to be finished by noon, I am going to need to enforce the 5-minute rule. So, if you can keep your remarks to 5 minutes or even less, we'll appreciate it. We'll begin, Mr. Brown, with you.
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STATEMENT OF ROBERT L. BROWN, CHAIRMAN, IMMIGRATION DIRECTORS' ASSOCIATION, IMMIGRATION AND NATURALIZATION SERVICE
Mr. BROWN. Thank you. Good morning, Mr. Chairman, ranking minority member, Mr. Watt, and distinguished members of the subcommittee.
I appreciate this opportunity to share with you the views of the membership of the Immigration Director's Association, known as the IDA. The employees of the IDA are appreciative of the attention and assistance given to INS by Congress and in particular, by this Committee during the past several years. The personal attention being paid to the needs of INS such as, Chairman's Smith recent visit to the Buffalo District go far and foster a can-do attitude among our employees.
The IDA membership consists of the senior field managers at the INS District's suboffices and service centers. Membership is limited to the district director, deputy district directors and officers in charge. Simply stated, the IDA supports a plan which keeps the Immigration Service, Service and Enforcement activities within one agency and under one local manager. We believe that the functions performed by the INS are so interdependent and necessary to each other that the Service will not function properly if separated into competing agencies or cosmetically split internally.
The commissioner has an ongoing process to develop a new organizational structure. The IDA shares the commissioner's belief that the INS needs to retain both the Service and Enforcement activities under one roof. However, the IDA has also expressed the opinion that Service and Enforcement need to be well integrated at all levels of the INS, including the policy level and the implementation field level. Regardless of which organizational structure is eventually adopted, the members of the IDA are firmly committed to support and work to ensure the success of the new organization.
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Many of the critics of the INS say a service officer cannot be an enforcement officer and visa-versa. Those critics cry for a bifurcated INS. However, we believe what is needed is equal emphasis placed on both major functions within one organization to ensure their successful integration. The IDA believes that this necessary integration can be accomplished by establishing a deputy for enforcement and a deputy for service at all organizational levels.
Establishing a deputy of enforcement and a deputy of service at all levels of the INS will ensure equal emphasis with an overall single management oversight without causing a RIF in the necessary integration of service and enforcement. A dual-deputy structure can be accomplished within a short time-frame and is relatively far less expensive than a split of INS.
The IDA agrees with the criticism voiced in recent months by leaders in Congress that INS backlogs are unacceptable; that our processes are flawed; and that we have become less accessible, less responsive, and less accountable. We further agree that changes should and must be made to address these problems.
Let me suggest that we are in this predicament first, and foremost, because of unbridled growth and inadequate advanced planning to deal with the tremendous increases in workload during the past several years. Having said that, we also believe these problems, as serious as they are, are surmountable. Indeed, we differ strongly with the notion that it is the structure or organizational lines of INS that need to be reworked. We believe the changes necessary have less to do with structure, but rather, have more to do with the need for strong leadership and direction at all levels of INS, including field and headquarters offices.
Page 93 PREV PAGE TOP OF DOC We have discussed the need for change with Booze Allen, as well as with the commissioner. In neither of those discussions was I persuaded that the problems existing in INS could and should be addressed through wholesale organizational or structural changes. We believe that any restructuring that bifurcates INS at the field level would be a mistake. In our view, a new structure will create more chaos, more delays and provide us with more excuses for non-performance. We believe service and enforcement should be independently administered, but not independent of one another. Like it or not, they are and will forever be joined at the hip and interdependent.
The extent that each has suffered in the past at the expense of the other as some have argued, has been primarily the result of policy decisions to re-allocate or shift resources based on Nationally-driven priorities, not local initiatives. The specific issue of contention then, is not whether there's need for change at INS, but rather, can INS administer both services and enforcement and do justice to both without a major re-organization.
Some of the practical problems associated with the restructuring include by INS's own estimates, a restructuring will take 3-5 years.
Major efforts in INS to solve the citizenship situation, our present top priority will lose focus, and in fact, extend backlogs and delays. Our recent struggle to deal timely with implementation of hundreds of millions of dollars worth of technological information and support systems already behind schedule will be impacted.
Congressional inquiries to local offices on individual cases will necessarily have to be duplicated, redirected or re-routed to a separate organization sharing related but bifurcated responsibilities.
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Jurisdiction and turf issues which have often plagued INS will be intensified. There will be no point of conflict resolution. Multiple spokespersons for INS in a geographic jurisdiction will result in confusion for our customers, the media, the Congress, and our employees.
Mr. SMITH. Mr. Brown, are you finishing up?
Mr. BROWN. I'll skip over a little bit.
A classic example of the problems of service without enforcement is the SAW program. This program was administered in a separate service atmosphere. GAO reports now reveal that upwards of 75 percent of the applications were fraudulent and there were over 1 million applications filed and processed.
Other situations highlighting the need for close interaction between service and enforcement are the murders outside the CIA headquarters, and the bombing of the World Trade Center in New York City. The individuals responsible for these acts were all recipients of immigration benefits, without the appropriate umbrella of enforcement.
Mr. Chairman, we cannot allow terrorists and criminals to test the generosity of America with impunity. Thank you.
[The prepared statement of Mr. Brown follows:]
Page 95 PREV PAGE TOP OF DOCPREPARED STATEMENT OF ROBERT L. BROWN, CHAIRMAN, IMMIGRATION DIRECTORS' ASSOCIATION, IMMIGRATION AND NATURALIZATION SERVICE
Good Morning, Mr. Chairman and distinguished members of the Subcommittee. I appreciate this opportunity to share with you the views of the membership of the Immigration Director's Association (IDA) on ''Alternative Proposals to Restructure the Immigration and Naturalization Service.''
The IDA membership consists of the senior field managers at the INS Districts, Suboffices and Services Centers. Membership is limited to Directors, Deputy Directors and Officers in Charge.
Simply stated, the IDA association supports a plan which keeps the Immigration Service integrated at both the central office and field levels. The functions performed by the immigration service are too interdependent and necessary to each other to be separated into competing agencies or cosmetically split internally by building ''walls'' and then putting ''windows'' in the walls.
Lest you think we favor the status quo with regard to the need for change, let me make clear that nothing is further from our position. The IDA agrees with Chairman Rogers and those persons that have pointed to our lack of responsiveness, failure to be accountable, need for improved services to the public, need for enhanced enforcement and in general a need to improve our performance commensurate with our growth and growing responsibilities.
We also agree that interest groups on both sides of the ''enforcement'' and ''benefit'' programs should expect stronger commitments to those respective functions both as to funding and to the ''culture'' which befits those activities. To that end, we support further recognition of the development of a more equitable application of resources by being responsive to the needs of our clients on both the ''enforcement'' and ''benefit'' aspects of our work.
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Without exploring each and every reason which has brought this restructuring issue to the forefront of this honorable committee, I would like to examine with you one area of concern which I believe has generated much interest to illustrate why the INS should remain joined.
The naturalization of persons in the United States is one of the important functions of the INS. To the average person outside INS, naturalization is viewed as a ''benefit'' function rather than an ''enforcement'' function. In 1996 faced with a substantial increase in naturalization applications the INS put great emphasis on speeding up the naturalization application process. This speeded up process in large measure was taken out of normal district operations where ''benefit'' and ''enforcement'' are joined together. The naturalization process was placed in an environment where timeliness of processing was first and foremost. Because there was not the ''enforcement'' emphasis present in this new environment the normal proper scrutiny may have been shortchanged. It was the absence of ''enforcement'' in the process which precipitated the current naturalization challenges.
All of the INS officers by necessity of the work they perform wear two hatsone of providing service to the public while at the same time being ever mindful of their responsibility to enforce the Immigration laws of this country as set out by Congress.
Much as a police officer is called upon to be both a law enforcement officer and service provide so are the women and men of the Immigration Service.
Asylum officers must of necessity, for failure to state a credible or fradulent claim, deny more applications for asylum then they approve.
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Immigration Inspectors rapidly admit many more people to the United States then they turn back, yet it is the terrorist they are trained to intercept.
Adjudicators responsible for the integrity of the application for permanent residence and naturalization, must continually be on the lookout for fraud and criminal conspiracies.
Investigators often are the only avenue of protection for those who are the victims of criminal enterprise.
If the agency is split into various other agencies or even of there is an internal cosmetic split with ''walls'' and ''windows'' there is substantial concern the current balance between ''benefit'' and ''enforcement'' will be lost. Conflicts between the two will arise with the benefit manager interested in rushing cases to closure to reduce backlogs while the enforcement manger's concern will not be tempered with the compassion needed when dealing with persons who are the victims of a criminal enterprise.
The stated advantage of having a field manager focus on benefits and a separate field manager focus on enforcement in the same geographic area in reality is a real disadvantage. With separate organizational structures these managers will of necessity spend much of their productive hours in conflict with each other, with no one empowered to resolve the conflict.
Historically District Directors have worked closely with Congressional Offices as well as with other local organizations to insure the best possible immigration service. If INS is split into various agencies or split by an internal ''wall'' with ''windows'' the public and Congress will no longer know who is responsible nor who they can turn to for help.
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The IDA knows much criticism has been leveled in recent months on the fact that our backlogs are unacceptable, that our processes are flawed, and that we have become less accessible, less responsive, and less accountable. The IDA agrees that changes should and must be made. However, a radical change in structure or ''splitting'' up of INS will probably only add to our shortcomings. Much of our current condition stems from rapid growth of the agency as well as the volume of work. Having said that, the IDA believes our problems are surmountable.
The IDA believes the necessary changes have less to do with structure and have more to do with providing strong, enlightened leadership, and direction at all levels of the INS. Many of the Booze Allen recommendations are valid, however, even Booze Allen agrees processing and policy changes are much more important then a restructuring and none of them need be accompanied by a wholesale structural change.
With a wholesale restructuring of INS there will be a significant increase in costs associated with separate, parallel and stovepiped ''enforcement'' and ''benefit'' activities and facilities. The IDA believes the funding increase could be better spent on the operations of the INS rather then building new organizations.
Much has been written and spoken concerning the need to separate the ''enforcement'' and ''benefit'' functions of INS in order to enhance the respective functions and to better serve its objectives and clientele. The proponents of breaking up the INS, or separating the functions apparently believe that these enhancements cannot occur without dismantling or drastically rearranging the long standing organizational structure of INS, a structure which was ironically designed to keep these functions together as a means to balance and complement one with the other.
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Indeed, each of those advocates who favor separating the functions argues that their interests, ''benefit'' or ''enforcement'' are suffering because of the affiliation with the other. ''Enforcement'' advocates say they are inadequately funded and less professional than if they were made autonomous, while the ''benefit'' supporters believe the INS culture is too enforcement minded resulting in a less kindly attitude on the part of our employees in one or more aspects of dealing with applicants. We need not point out those occasions when circumstances have driven the affairs of Immigration policy as well as our workloads to major reprogramming and reprioritizing of INS resources and emphasis. Certainly, the dynamics of hundreds of thousands of unanticipated additional citizenship applicants, brought to light the need for wholesale policy changes and an introspective review of our practices on a national level with tremendous impact on local operating practices and personnel not to mention the public. Cubans, Haitians, amnesty, asylum, terrorism, sanctuary, Chinese family planning, Salvadorans, Guatemalans, Nafta, fingerprints, counterfeit proof green cards, protect jobs for Americans, all words and terms heard in recent months, have meant change, reaction, reprogramming, and sometimes disruption to INS management.
Thus, the IDA supports the suggestions put forth by the firm of Booze Allen, to 1. Develop clear lines of accountability; 2. Create customer-oriented capabilities; 3. Build professional capabilities in law ''enforcement'' and ''benefit'', and to 4. Uphold the immigration laws of the U.S. as intended by Congress.
However, we believe each of the above goals can be readily achieved as proposed by Booze Allen and others by addressing clearly identified lines of communication, processing, accountability, training and if necessary retraining, and related management deficiencies at all levels, without restructuring. Nothing in restructuring, will facilitate the changes necessary, nor will a restructuring better accommodate the changes necessary. Restructuring will be costly and have other negative effects, such as duplication of supervisory levels. Restructuring will only place further obstacles in the way of implementing effective efficiencies.
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The IDA believes that reducing backlogs, improving our effectiveness in ''enforcement'' and ''benefit'' becoming more responsive and efficient and in general becoming a better managed agency, can be best accomplished by concentrating our efforts on those factors.
Some of the practical problems associated with a restructuring which go beyond change for change sake include:
By INS's own estimates, a restructuring will take 35 years.
Present processes and procedures, already in need of improvement will be fraught with uncertainty and confusion during any restructuring thus translating to more inefficiencies and frustrations to the public for several years.
Major efforts in INS to solve the Citizenship situationour current top prioritywill lose focus and in fact extend backlogs and delays.
Technological information and support systems already behind schedule will be drastically impacted.
Congressional and other public inquiries to local offices on individual cases will necessarily have to be duplicated, redirected or rerouted to separate organizations having related but bifurcated responsibilities.
Jurisdiction and turf issues will be intensified.
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Flexibility in the management of resources necessary to meet local demands and crises will be eliminated with the creation of separate ''stove pipe'' organizations with separate reporting lines.
Consideration of equities in the ''benefit'' side of INS in connection with an ''enforcement'' case will be extraordinarily difficult to coordinate for example presently an apprehended illegal alien with a claim to an entitlement or benefit is processed with a view of all areas of INS. Restructuring will separate such related decision processes and complicate such consideration.
Fraud will not be emphasized because the adjudicator's concern with the reduction backlogs will turn the focus from detecting fraud.
''Enhancing'' enforcement under the guise of making it more professional by limiting crossed opportunities for other employees will have the opposite effect of eliminating a very large applicant pool of qualified persons who are now eligible for those career opportunities.
Multiple spokespersons for INS in a geographic jurisdiction will result in confusion for outsiders, the media, the Congress and our own employees.
Enforcement tempered with compassion which is what our present structure provides, will give way to separate single-mindedness; for example recognition that present worksite enforcement is intended to be cooperative in nature with employers and that the illegal alien is often a victim will be less apparent in a pure enforcement culture.
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The notion that investigators must be in an organizational chain of command that is uncontaminated by non-investigative management personnel handling ''benefit'' functions conjures up images of a law enforcement entity without restraint.
Large scale reprogramming of funding from ''enforcement'' to ''benefit'' or vice versa needs to be curtailed but it is not necssary to split INS to accomplish this.
Management problems created by managers should not be attempted to be solved by organizational structure changes. Instead managers at all levels should be the focus of where the solution lies; and they must be held accountable for their actions.
Resources need to be fairly dispensed to all field offices.
Develop a cadre of career managers to assist in the management of INS at the central office level.
An INS which has a long standing, time tested and effective organization providing essential balance and flexibility to the management of our INS laws and regulations during several past changes and world events, should not hastily be changed in response to contemporary problems. Instead we need to fine tune, not take a meat cleaver to the existing management structure at all levels.
A low cost simple, efficient, and ready to go now approach to insure proper emphasis be placed on ''enforcement'' and ''benefits'' within INS is needed. The IDA recommends that the a dual deputy concept be utilized at all organizational levels. One deputy to oversee enforcement operations and a second deputy to oversee benefits. This should be established at the Headquarters, Regional and District levels of the INS.
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This organization will not require a major overhaul of the INS but will be responsive to many of the present concerns. ''Benefit'' and ''Enforcement'' will be independently administed but not independently of each other. Maintain a moderating level manager over both will recognize that a ''benefit'' officer is an enforcement oficer when looking for a terrorist or other criminal and that an ''enforcement'' officer is a benefit officer when dealing with those who cannot fend for themselves.
The Immigration Director's Association feels very strongly that the very essence of our present structure with ''enforcement'' and ''benefit'' together, is what ensures the proper balance and flexibility within our organization essential to our ability to be responsive to the incredible dynamics of Immigration policies. The flexibility both locally and nationally is what over the years has been sought and encouraged by those persons external to INS as necessary to address constantly changing needs. Whether it be on a very narrow issue or single case or in a wide sweeping policy issue, INS's present structure under one roof has been seen as more accessible and able to be responsive to such needs. Indeed, this often means that the Agency is pulled in different directions by interest groups whose missions are much more focused and frankly more narrow that the Agency's overall responsibilities. It is precisely on those occasions that INS must maintain a balance within its overall responsibilities of both ''enforcement'' and ''benefit''.
Mr. SMITH. Thank you, Mr. Brown. Ms. Martin.
Page 104 PREV PAGE TOP OF DOCSTATEMENT OF SUSAN MARTIN, FORMER DIRECTOR, U.S. COMMISSION ON IMMIGRATION REFORM
Ms. MARTIN. Mr. Chairman, members of the committee, thank you for providing the opportunity to testify today about the Commission on Immigration Reforms proposals for restructuring the U.S. Immigration system.
Since the Commission's completion in December, I'm now with Georgetown University, a new Institute for the Study of International Migration. I hope we'll be to continue to provide information and advice to this committee. It's very gratifying to me personally to see that the Commission's recommendations have sparked a serious debate and discussion about the structures and management of the Immigration system. And that consensus is developing in terms of agreement as to many of the problems within that system, and even some consensus about some of the solutions.
This hearing is about restructuring the INS, but the Commission concluded that the problem goes much deeper. The immigration system is one of the most complex in the Federal Government. They are overlapping and conflicting responsibilities, not just within INS, but elsewhere in the Justice Department, the Department of Labor, the Department of State, as well as smaller roles in the U.S. Information Agency, Department of Health and Human Services and other parts of the Executive Branch.
After extensive site visits, observations, consultations, and discussions with people inside and out of the government who deal on a day-to-day basis with immigration issues, the Commission identified three major problems in the current system. These problems we identified as being systemic. We shared many of the sentiments expressed by members of the Committee that the current leadership in INS has tried and the INS Commissioner has not been able to solve many of these problems. They are systemic, and they're not related to the particular management right now.
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The first one, there's been quite a lot of discussion about already today, and that's the mission overload as we termed it. At INS, in particular, the service and enforcement sides conflictwhich we do see as a conflict. We see the need to draw very bright lines between services and enforcement, between the legal immigration system and the illegal immigration problems that the country is fighting.
We also see that there are operational reasons to have the separation of service and enforcement in terms of building the training, the leadership, and the promotions systems that will support careers tracks in both of those areas.
The second problem that we identified is the diffusion of responsibility across all of these various different government agencies that I mentioned. This is particularly true in the legal immigration system where a single decision has to go through the Labor Department, the State Department, the Immigration Service, sometimes with sign-offs by these other Agencies. Instead of acting as an efficient system with checks and balances, it is rather one which creates delays, creates confusions, and one in which where everyone is responsible, no one is accountable.
It's very difficult to assign the responsibility to a specific department, saying that you have the responsibility to make the legal immigration system work. Which leads to the third problem that we identified, which are issues of accountability, those within various agencies and across the government. How do we hold officials accountable for their actions on both the enforcement and on the service side?
Page 106 PREV PAGE TOP OF DOC We considered a wide range of options for reform. Let me emphasize that the Commission came very reluctantly to any agreement to recommend structural reforms. We initially felt that moving boxes around was not the answer. But then we came to the conclusion that improvements were made in policy and resources for improving, but still the structures were impeding effective implementation.
We considered reforms within the Justice Department and within INS itself. Many of these reforms, such as the ones that Congressman Reyes has suggested or the administration itself has come up with were very tempting, particularly as interim steps toward more basic reforms. But, ultimately the Commission rejected that approach because it only dealt with the problems at INS. It didn't really deal with the diffusion of responsibility across the rest of the government. We felt that there was need for a more comprehensive reform.
We rejected the independent agency as going farther than was needed to reform the system. And I'll just end by saying we, as a Commission, decided that the best thing to do was to identify which agency is currently dealing with the bulk of the activities within a particular area. Justice related to enforcement, State Department on the legal immigration side, Labor in terms of worksite enforcement. And then, we also felt that it's extremely important for final accountability that there be an independent review process. Those who are implementing the policy should not also be responsible for reviewing whether or not they've made the right decision. And therefore, we recommended an independent appeals process that would cover the activities in both enforcement and services.
[The prepared statement of Ms. Martin follows:]
Page 107 PREV PAGE TOP OF DOCPREPARED STATEMENT OF SUSAN MARTIN, FORMER DIRECTOR, U.S. COMMISSION ON IMMIGRATION REFORM
Thank you for providing this opportunity to testify about the U.S. Commission on Immigration Reform's recommendations on structural reforms needed in the U.S. immigration system. Until December 31, I served as the Executive Director of the Commission. Since January, I have been the Director of the Institute for the Study of International Migration at Georgetown University.
I am very pleased to see the high level of discussion prompted by the Commission's recommendations, and I hope our findings will be helpful to this Committee as you consider the various pending proposals for organizational reform. Restoring credibility and setting prioritiesthemes at the center of the Commission's policy recommendations on illegal and legal immigration, respectivelywill not come to pass unless the government is structured to deliver on these policies. An effective immigration system requires both credible policy and sound management. Good management cannot overcome bad policy. Poor structures, lack of professionalism, poor planning, and failure to set priorities will foil even the best policies.
Until relatively recently, the agencies responsible for implementing immigration policy were underfunded, understaffed, and neglected. During the past few years, massive increases in resources and personnel, combined with significant political attention to immigration issues, have provided new opportunities to address long-standing problems. Further change is required, however, if the overall U.S. immigration system is to function smoothly and effectively, anticipating and addressing, rather than reacting to, problems.
The Commission's recommendations focus on two sets of improvements that are needed to make the implementation of immigration policy more effective: structural reforms and management reforms. In developing these recommendations, we looked comprehensively at the immigration system. This hearing is focused on restructuring the Immigration and Naturalization Service. However, let me emphasize that the organizational problems we identified go far beyond INS and will not be solved solely by any structural changes in that agency.
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The immigration system is one of the most complicated in the federal government bureaucracy. In some cases, one agency has multiple, and sometimes conflicting, operational responsibilities. In other cases, multiple agencies have responsibility for elements of the same functions. We identified three principal problems resulting from the current complex system for implementing immigration policy: mission overload, diffusion of responsibility, and lack of accountability.
With regard to mission overload, some of the agencies that implement the immigration lawsthe INS, in particularhave so many responsibilities that they have proved unable to manage all of them effectively. Between congressional mandates and administrative determinations, these agencies must give equal weight to more priorities than any one agency can handle. Such a system is set up for failure, and, with such failure, further loss of public confidence in the immigration system.
No one agency is likely to have the capacity to accomplish all of the goals of immigration policy equally well. Immigration law enforcement requires staffing, training, resources, and a work culture that differs from what is required for effective adjudication of benefits or labor standards regulation of U.S. businesses. While some argue that enforcement and benefits are complementary functions, the Commission agreed with the Commission for the Study of International Migration and Cooperative Economic Development [Asencio Commission, after its Chair] that placing incompatible service and enforcement functions within one agency creates problems: competition for resources; lack of coordination and cooperation; and personnel practices that both encourage transfer between enforcement and service positions and create confusion regarding mission and responsibilities.
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Combining responsibility for enforcement and benefits also blurs the distinction between illegal migration and legal admissions. As a matter of public policy, it is important to maintain a bright line between these two forms of entry. Moreover, separating enforcement and benefits functions will lead to cost efficiencies, more effective enforcement, and improved service to the public.
Had mission overload been the sole problem, the Commission may have recommended changes solely within INS or the Justice Department. However, the second problemdiffusion of responsibilities among agenciesrequires more fundamental structural reforms. Responsibility for many immigration functions are spread across numerous agencies within single departments or between departments. This fragmentation of responsibility is most clear in relationship to the adjudication of applications for admission as a legal permanent resident: responsibility for making decisions on skill-based immigrant and temporary worker applications is dispersed among the Department of Labor, the Immigration and Naturalization Service and the Department of State. Another agency, the United States Information Agency, now being merged into the State Department, has responsibility for determining who will enter with a J visa, under which some exchange visitors work in this country. USIA also must sign off on requests for waivers of the two-year home residency required of some J visa holders before they can adjust their status to other nonimmigrant or immigrant categories.
A second area in which responsibility is diffused and activities are redundant is worksite enforcement. Both INS and DOL conduct investigations to determine if employers have violated the employment eligibility verification requirement. Sanctions may be imposed by INS against employers who knowingly hire unauthorized workers. The DOJ Office of Special Counsel has related responsibilities in determining if employers are engaging in immigration-related unfair employment practices.
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Fragmentation of responsibility leads to conflicting messages from the various agencies, unnecessary delays in adjudication, and, when more than one agency must adjudicate the same request, redundancies in actual implementation.
It also leads to problems of accountability, the Commission's third area of concern. Here, the problems are across agencies as well as within agencies. When everyone is responsible for implementing a policy, no one readily can be held accountable for the outcomes. It is too easy to blame the other agencies. Even within the same agencies, however, the immigration system suffers from problems of accountability. In its report to Congress, the Administration agreed with the Commission's assessment that INS suffers from insufficient accountability between field offices and headquarters, lack of consistency, overlapping organizational responsibilities and significant management weaknesses. The Commission also pointed to accountability problems within other agencies. For example, the absence of systematic procedures for review of consular decisions, particularly on visas for legal immigrants, opens the door to potential abuse of consular discretion.
Having determined that fundamental reform going well beyond changes in INS was needed, the Commission considered a range of ways to reorganize roles and responsibilities, including proposals to establish a super-agency, either a Cabinet-level Department of Immigration Affairs or an independent agency along the lines of the Environmental Protection Agency. There is little reason to believe, however, that a super immigration agency with multiple complex responsibilities would function any more effectively than INS. The same conflicts between the enforcement and service roles would continue. In practical terms, a super-agency would mean that INS would absorb the personnel and activities of the State Department, Labor Department and other agencies with immigration responsibilities. Such consolidation would hardly constitute an improvement for an agency that has been struggling with its own growth during the past five years.
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After examining the full range of options, the Commission concluded that a clear division of responsibility among existing federal agencies, with appropriate consolidation of functions, will improve management of the federal immigration system. The Commission's specific recommendations stem from a belief that the most practical approach to structural reform is to build on the strengths and capabilities of existing agencies. As such, we identified the organizations with the strongest capacity to take on the four principal operations of the immigration system and recommended:
1. Immigration enforcement at the border and in the interior of the U.S in a new Bureau for Immigration Enforcement at the Department of Justice;
2. Adjudication of eligibility for immigration-related applications (immigrant, nonimmigrant, asylum, refugee, and naturalization) in the Department of State under the jurisdiction of an Undersecretary for Citizenship, Immigration, and Refugee Admissions;
3. Enforcement of immigration-related employment standards in the Department of Labor; and
4. Appeals of administrative decisions, including exclusion, deportation, and removal hearings, in an independent agency, the Agency for Immigration Review.
This streamlining, reconfiguring and strengthening of responsibilities will help ensure: coherence and consistency in immigration-related law enforcement; a supportive environment for adjudication of applications for immigration, refugee, and citizenship services; rigorous enforcement of immigration-related labor standards to protect U.S. workers; and fair and impartial review of immigration decisions. More specifically, the Commission recommends that responsibility for the four functions of the immigration system be structured as follows:
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The Commission recommends placing all responsibility for enforcing U.S. immigration laws to deter future illegal entry and remove illegal aliens in a Bureau for Immigration Enforcement in the Department of Justice. The Commission believes that the importance and complexity of the enforcement function within the U.S. immigration system necessitate the establishment of a higher-level, single-focus agency within the DOJ. The Commission further recommends that the newly configured agency have the prominence and visibility that the Federal Bureau of Investigation [FBI] currently enjoys within the DOJ structure. The Director of the Bureau for Immigration Enforcement would be appointed for a set term (e.g., five years). The agency would be responsible for planning, implementing, managing and evaluating all U.S. immigration enforcement activities both within the United States and overseas.
The new agency's responsibilities would include many functions currently performed by the INS: inspections and admissions at air, land, and sea ports of entry and at pre-inspection facilities overseas; border management and control between ports of entry; apprehension and prosecution and removal of illegal residents and workers; oversight of pre- and post-trial/hearing release; identification and prosecution of document fraud; identification, deterrence, and prosecution of alien smuggling gangs; and other domestic and overseas deterrence activities.
The Commission believes that the current U.S. immigration system structure diffuses and confuses potential for a more concerted focus on central functions and activities. Enforcement objectives sometimes conflict with service goals and vice versa. Often, both compete for limited operational resources and for the time and attention of those responsible for planning, administering, and managing these programs.
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The Commission is particularly concerned that although the current removal system produces more than 100,000 final removal orders each year, the system does not have the corresponding capability to remove the individuals subject to those orders. The Commission believes that it is critical to the credibility of the removal sector of the enforcement system that the agency be held accountable for setting realistic numerical priorities and producing specific outcomes. Upper-level management must be responsible for effecting an integrated system such that the agency apprehends, detains, and proceeds against those aliens it prioritizes for removal, and ultimately removes all those being issued final orders of removal.
To establish such an integrated system, the Commission recommends that the new enforcement agency have a more traditional law enforcement model structure and that it focus on police activities, pre- and post-trial probation services, and prosecution. Agency personnel should be upgraded to receive pay and benefits commensurate with those provided to other Department of Justice law enforcement agents. At present, INS personnel performing the same functions as FBI or Drug Enforcement Agency [DEA] personnel are often at a lower-pay grade.
The police function would be carried out by uniformed services, such as Inspectors and Border Patrol Agents, and investigators who would conduct investigations and collect intelligence at the border and in the interior to deter smuggling, facilitate removals, and accomplish other similar goals. The Commission suggests turning over most detention responsibility to the U.S. Marshals Service and/or the Bureau of Prisons.
As in other law enforcement operations, particularly those in which more people are put into proceedings than can either be accommodated in detention or actually removed, there is a need for pre- and post-trial/hearing screening and/or supervised release on probation or bond. In the immigration context, these could be available, for example, to asylum-seekers who are deemed by an Asylum Officer to have demonstrated a credible fear of persecution, to those who have accepted voluntary departure and posted bond, or to those unlikely (because of close family members or other strong community ties) to abscond pending completion of their hearings or sentences.
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To ensure a high expectation of individuals actually being removed from the U.S. within a certain time, the Commission believes that Trial Attorneys should have greater discretion to set priorities for apprehension and prosecution and to determine which cases are pursued for removal proceedings.
The Commission recommends the following distribution of responsibilities within the Bureau for Immigration Enforcement.
Uniformed enforcement officers. The Commission recommends merger of the INS Inspectors, Border Patrol, and detention officers into one unit, the Immigration Uniformed Service Branch. Its officers would be trained for duties at land, sea, and air ports of entry, between land ports on the border, and in the interior where uniformed officers are needed for enforcement. The unit would be accountable for both the facilitation of legal traffic at the ports of entry and the enforcement against illegal entry. It also would be responsible for moving detainees from apprehension sites to detention facilities and to hearing sites, as well as for escort duty during removals. After appropriate training, most of the officers performing these various functions could be transferred interchangeably, and opportunity for job mobility would exist across lines not now possible. As stated above, grade level and pay should be upgraded as needed to be commensurate with the law enforcement activities the officers will perform.
Unlike the current practice in which the Border Patrol reports to Sector Chiefs and Inspectors report to District Directors, all uniformed officers within a particular geographic area would be under the authority of a single, integrated immigration enforcement manager.
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Investigators. The Commission believes investigations will be a key part of the new agency's responsibility. Investigators are the main agents responsible for identifying and apprehending people who are illegally residing or working in the United States, for deterring smuggling operations, for building a case against those who are not deterred, and for identifying, apprehending, and carrying out the removal of aliens with final orders of removal.
Only some 2,900 employees, out of an INS staff of more than 25,000, work on these many investigative tasks. A similar number work in INS Detention and Deportation. Most of these Deportation Officers couldgiven additional on-the-job training and supervisionconduct investigations. Deportation Officers now deal almost exclusively with docket control and management paperwork that could be done by lower level support staff, freeing the Deportation Officers for field work.
INS Investigators primarily work the front end of the removals process: identifying and arresting those who are illegally residing or working in the U.S. Little attention is given to the removal process as a whole, for ensuring availability of adequate detention space, allocating ample Trial Attorney and Immigration Judge time, effecting transfer to airports, and achieving physical removal. The system is bogged down with increasing numbers of aliens who are apprehended, charged with an immigration violation, put into proceedings, released due to lack of detention space or other prerequisites for effective timely processing, never appear at their hearings, or are never deported after a final order of removal is issued. The failure of careful planning and integration of the process means many of those who are apprehended are never removed. According to some observers, the INS' compartmentalized program planning, budgeting, and implementation procedures blunt attempts to integrate these functions more fully into a seamless and effective process.
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''Removal Officers'' in the new Bureau for Immigration Enforcement, who would integrate the functions of Investigators and Deportation Officers in apprehensions and removals, would enable the immigration system to deliver better on its commitment to actually remove those who are issued final orders. Managers would then have the flexibility to shift resources among various investigations activities as needed to produce a smooth-flowing process that ensures timely removal. As dsicussed above, grade and pay should be commensurate with the often dangerous law enforcement duties performed by investigators.
Intelligence. The Bureau for Immigration Enforcement will require an Intelligence Division to provide strategic assessments, training and expertise on fraud, information about smuggling networks, and tactical support to uniformed officers or investigators. It would act as a liaison with other federal law enforcement agencies and share information and intelligence. The Intelligence division would be one of the smallest in the agency with an anticipated staff of about 100 employees.
Assets Forfeiture Unit. As with the other DOJ enforcement agencies, the Bureau would have an Assets Forfeiture Unit. Statutory authority for Assets Forfeiture activities is a useful addition to the range of strategies and sanctions available to the U.S. law enforcement community. Augmented authorities in the 1996 immigration legislation increased both its usefulness and the potential for misuse or abuse. In order to be aggressive in using these new authorities and equally aggressive and proactive in ensuring against misuse/abuse, DOJ agencies established assets forfeiture units under the general guidance of the DOJ Assets Forfeiture Unit. Each agency, including FBI, DEA, and INS, has its own unit. These units, usually highly-placed within the agency, are the focal points for agency-wide asset-related policy implementation, field staff training, and field operations monitoring. They assist the agency's field staff in case development, monitor use of assets forfeiture funds, and oversee use of these sanctions to guard against abuse.
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Pre- and post-trial ''Probation'' Officers. ''Probation'' functions are not now performed consistently or effectively in the immigration system, but the Commission believes these functions are essential to more strategic use of detention space. District Directors and Immigration Judges determine the release (either on personal recognizance or on bond) of apprehended aliens from detention. Often, release relates more to lack of detention space than to the likelihood that aliens will appear at their proceedings or assessment of aliens' danger to the community. Some aliens are given the option to depart voluntarily, but there is little tracking of whether they actually leave the country. As it is unlikely that all potentially deportable aliens could or should be detained awaiting removal, the Commission believes more attention should be given to supervised release programs and to sophisticated methods for tracking the whereabouts of those not detained.
Pilot programs, such as the Vera Institute Appearance Assistance Program (AAP), could be expanded into more areas if successful. INS requested this three-year project in the New York area. It studies reporting requirements and the effectiveness of community sponsors in supervising the release of aliens who meet certain criteria regarding community ties and public safety. The program aims to free up valuable detention space for aliens without legal remedies who are likely to abscond, while keeping others out of detention.(see footnote 1)
Trial Attorneys/Prosecutors. INS has nearly 800 staff involved in immigration-related legal proceedings, such as offering legal opinions and advice and representing the government's interests in proceedings before Immigration Judges and on appeal.
Page 118 PREV PAGE TOP OF DOC The Commission believes that the Trial Attorneys, who, in effect, are the Government's immigration prosecutors, should be vested with, and should utilize, an important tool possessed by their criminal counterparts: prosecutorial discretion. Under the current system, the Trial Attorneys do not as a practice use discretion in determining which cases to pursue. The INS does not sufficiently prioritize or target cases; instead it acts as if it had the means to prosecute each and every case effectively. Cases go forward, even when an alien will, or is likely to, prevail on an application for relief or when there is no realistic belief that the alien will ever be removed from the country. Discretion exercised at the beginning of the process and at every step would target the use of scarce resources better and contribute to a more effective and credible system. Central office leadership would be required to set appropriate priorities and provide guidance to the Trial Attorneys as to the proper use of discretion.
Greater sharing of information between the Trial Attorneys, aliens, and their counsels would facilitate smoother and more expeditious movement through the system and fewer Freedom of Information Act requests. Greater use of stipulations and pretrial conferences (with sanctions resulting when attorneys are not prepared) would narrow the disputed issues needing court resolution and time.
Field Offices. The new enforcement agency would implement its programs through a series of field offices structured to address comprehensively the immigration enforcement challenges of the particular locality. As the location of these offices should be driven by enforcement priorities, they would likely be located in different places than current district offices. Current INS Regional Offices could be retained for administrative and managerial oversight of these dispersed and diverse field offices.
Page 119 PREV PAGE TOP OF DOC The field office inspections officers at ports of entry would both facilitate the admission of those with permission to enter and the identification of illegal entrants. Border Patrol stations along the border and at checkpoints along major interior transportation corridors would facilitate enforcement activities. Appropriate field offices also would investigate and prosecute cases and contribute to detection and destruction of smuggling rings.
LEGAL IMMIGRATION, REFUGEE ADMISSIONS, AND CITIZENSHIP SERVICES
The Commission recommends that all citizenship and immigration benefits adjudications be consolidated in the Department of State, and that an Undersecretary for Citizenship, Immigration, and Refugee Admissions be created to manage these activities. At present, three separate agenciesthe INS, the Department of State, and the Department of Laborplay broad roles adjudicating applications for legal immigrant and nonimmigrant admission, refugee admission, asylum, and/or citizenship. In addition, the Department of Health and Human Services plays an ancillary role in setting requirements regarding health standards for new arrivals, and the United States Information Agency has a major role in exchange visitor programs.
The Commission believes a more streamlined and accountable adjudication process, involving fewer agencies but greater safeguards, would result in faster and better determinations of these benefits. Consolidation of responsibility in one department would permit a reengineering of the adjudication process to make it more efficient and timely. The new organization would be responsible for naturalization and determination of citizenship, overseas citizen services abroad, adjudication of all immigrant and nonimmigrant applications, work authorizations and other related permits, and adjustments of status. It also would have responsibility for refugee status determinations abroad and asylum claims at home. Policy and program development for all immigration activities would be incorporated into the new organization, which also would have enhanced capacity to detect, deter, and combat fraud and abuse among those applying for benefits.
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In considering which department should be responsible for adjudicating these applications, the Commission considered each agency's current and historic role and overall mission. The Department of State, we believe, has the greatest capacity to undertake the responsibilities entailed in a consolidated legal admissions and citizenship system.
The Department of State has the most substantial adjudicatory capability of any of the Departments involved in immigration matters. It issues one-half million immigrant visas and six million nonimmigrant visas each year. DOS also provides a full range of citizenship services both domestically (issuance of almost six million passports annually) and abroad (e.g., citizenship determinations and registration of births of U.S. citizens overseas). DOS already plays the principal role in refugee resettlement determinations, and it plays an advisory role with regard to asylum. Indeed, DOS has devoted a major share of its personnel and its capital and operating resources to these immigration, refugee and citizenship adjudicatory functions at embassies and consulates in more than two hundred countries and in passport offices in fifteen U.S. cities. In addition, the National Visa Center in New Hampshire processes and forwards to overseas posts three-quarters of a million immigrant cases.
Consolidation of benefits adjudication responsibility in the State Department has clear cut advantages over consolidating the full responsibility in the Justice Department. Taking responsibility for immigration and citizenship services out of the Department of Justice sends the right message, that legal immigration and naturalization are not principally law enforcement problems; they are opportunities for the nation as long as the services are properly regulated. Further, the Department of Justice does not have the capacity internationally to take on the many duties of the Department of State.
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Consolidating responsibility requires changes in the way the Department of State administers its immigration responsibilities, which we believe would strengthen the adjudication function. This increase in domestic responsibilities may raise concern over possible decrease in attention and focus on the Department of State's traditional mandate in foreign affairs, as well as more practical caution regarding the well-known difficulties in managing the domestic aspects of immigration. Some observers also may be concerned that DOS might not give sufficient consideration to the domestic impact of immigration. To counter this perception (and some underlying reality), the Department of State would need to develop mechanisms for consultation with domestic groups representing a broad range of views and interests regarding immigration.
The Department of State also will need to change its historic position on review of consular decisions. At present, decisions made at INS and the Department of Labor on many immigrant and nonimmigrant applications may be appealed, but no appeal is available on consular decisions. The Commission believes that immigrant and certain nonimmigrant visas with a U.S. petitioner should be subject to independent administrative review [see below].
The Department of State also would have to prepare its own bureaucracy to take on these new functions. A need for a renewed emphasis on training for the management of large and interrelated offices and processes will be matched by the need for superior personnel management and leadership. These highly-regarded management skills would be an ideal attraction for those Foreign Service officers who shy away from consular assignments abroad, perceiving them as unwanted digressions from the classic diplomatic career path.
Page 122 PREV PAGE TOP OF DOC With consolidation, the Department of State would have sole responsibility for processing immigrantsfrom the filing of the petition in the United States and subsequent visa issuance abroad, to the production of the green card and work authorization in the U.S., and ultimately, to naturalization. Issuance of a passport to the newly-naturalized citizen would complete this almost seamless process of immigration benefits adjudications. Consolidation of these steps would permit greater operational flexibility (e.g., one-stop adjudication of petitions and forwarding to posts abroad, streamlined processing for work-related visas), greater flexibility in use of personnel (e.g., the examination function could span visa petitions and passports), and, as discussed below, greatly enhanced antifraud capabilities.
This recommendation envisions creation of an Undersecretary who would have direct access to the Secretary of State and who would be responsible for domestic and overseas immigration, citizenship, and refugee functions.
Within the Office of the Undersecretary would be a unit responsible both for formulating and assessing immigration policy as well as reviewing and commenting on the immigration-related effects of foreign policy decisions. This policy capacity would be new for the Department of State, but it is in keeping with the important role that migration now plays in international relations.
The Undersecretary would have three principal operating bureaus:
A Bureau of Immigration Affairs [IA] would focus on the immigration process, as noted above, as well as on processing of nonimmigrant visas. IA's expanded responsibilities would be based on those currently assigned to the Visa Office and the National Visa Center. In addition to its existing overseas work, the Bureau of Immigration Affairs would be responsible for domestic adjudication/examination functions, including work authorization, adjustment of status, domestic interviewing, and the issuance of appropriate documentation (e.g., green cards). The Bureau of Immigration Affairs also would staff immigration information and adjudication offices in areas with immigrant concentrations. Related INS legal and regulatory staffs in Washington also would transfer to the IA Bureau, as would DOL functions regarding employment-based entry. In short, the IA Bureau would assessin the U.S. and abroadapplications for all immigration-related benefits now performed by INS, DOL, DOS, and USIA.
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Bureau of Refugee Admissions and Asylum Affairs would assure an appropriate level of independence from routine immigration issues and processes. It would combine the present Bureau for Population, Refugees and Migration [PRM] responsibilities for overseas refugee admissions, the refugee and asylum offices of the INS, and the DOS asylum office in the Bureau of Democracy, Human Rights and Labor. This would integrate the key governmental players in one of our most important and historic international activities. In this vein, the direct line of authority to the Secretary of State through the new Undersecretary underlines the key policy advantage for global refugee issues.
Bureau of Citizenship and Passport Affairs would be responsible for naturalization, other determinations of citizenship, and issuance of passports. Local offices performing some citizenship functions, such as overseas travel information, passport and naturalization applications, testing and interviews, could be located at the new or expanded immigration offices noted below.
Overseas citizen services would continue to be handled within the new consolidated organization, utilizing the DOS substantial domestic and overseas staff. These services include: responding to inquiries as to the welfare or whereabouts of U.S. citizens; assisting when U.S. citizens die, are arrested, or experience other emergencies abroad; providing notarial services; and making citizenship determinations and issuing passports abroad. In some countries experiencing instability, an increasingly important activity is organizing Americans living or working in those areas into networks for efficient communication of information and warnings.
Page 124 PREV PAGE TOP OF DOC Quality Assurance and Fraud Prevention Offices would oversee records management, monitoring procedures, fraud investigations, and internal review. At present, monitoring of the quality of decisions made on applications for immigration and citizenship benefits receives insufficient attention. INS enforcement officials now have the responsibility to investigate allegations of fraud in immigration and naturalization benefits programs, but monitoring the adjudications process is a low priority in an office that is also responsible for identifying and removing criminal aliens, breaking up smuggling and counterfeiting rings, and performing similar police work. A staff responsible for and dedicated to ensuring the quality of decisions taken on applications for immigration and citizenship should address some of the weaknesses, such as those recently identified in the naturalization process.
Some adjudication decisions now are reviewed by a separate administrative unit within the agency conferring benefits; others are not. The Commission believes that quality decisions require some form of supervisory review for applicants who believe their cases have been wrongly decided. This type of review helps an agency monitor consistency and identify problems in adjudication and offers a means of correcting errors. At present, DOS has procedures for some internal supervisory review of consular decisions, but it has had no need for procedures to review refusals of applications at earlier stages of adjudication. With expanded responsibilities, DOS will need to develop a comprehensive internal review process that ensures that errors are corrected with minimal disruption to the applicant and the agency.
Quality assurance requires good records. The accrued personal records of each immigrant must be accurate, up-to-date, and retrievable at each adjudicative stage: (1) petition/immigrant visa; (2) alien resident/green card; (3) naturalization; and (4) passport. The creation and maintenance of the alien filing system (''A'' files) should be reviewed to assure its maximum utility in the adjudicative flow noted above. The absolute need for good immigration records cannot be overstated.
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Standardized and flexible records management and the consolidation of domestic and overseas adjudication functions will greatly enhance antifraud capabilities. At present, fraud often is not discovered until after a government agency has given the case one or more approvals and the alien appears for his or her visa. The resources are not now in place for adequate review of questionable petitions, and communications between overseas posts and domestic agencies are not adequate. Even when they receive information from overseas posts about likely fraud, the domestic agencies generally do not follow up with further investigation. Consolidation within the Department of State would overcome poor coordination and communication and permit more antifraud efforts at the beginning of the process, where they are most effective. A fraudulent entry prevented, a work permit not issued to an unauthorized person, or an ineligible alien prevented from naturalizationthese are far more preferable to trying to rescind a benefit granted in error.
Field Offices. With respect to the domestic field structure for implementing these programs, The Regional Service Centers and National Visa Center would continue to be the location of most adjudication. The physical plants are excellent and the locally-hired staffs are trained and in place. At this time, information is passed from the RSCs to the NVC when the applicant for admission is overseas. Eventually, however, the functions of the Service Centers and the Visa Center might be consolidated. Overseas interviews would continue to take place at embassies and consulates.
A range of other interviews would take place domestically. The Department of State already operates fifteen passport offices throughout the United States, many in areas of high immigrant settlement. These offices, however, are not set up for high volume interviewing. New offices, designed specifically with immigrant services in mind, would be needed. Ideally, to avoid long lines and waits for service, there would be smaller offices in more locations than the current INS district offices. The Commission recommends against locating these offices with the enforcement offices discussed above. Asking individuals requesting benefits or information to go to an enforcement agency sends the wrong message about the U.S. view of legal immigration.
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IMMIGRATION-RELATED EMPLOYMENT STANDARDS
The Commission recommends that all responsibility for enforcement of immigration-related standards for employers be consolidated in the Department of Labor. These activities include enforcing compliance with requirements to verify work authorization and attestations made regarding conditions for legal hire of temporary and permanent foreign workers. The Commission believes that as this is an issue of labor standards, the Department of Labor is the best equipped federal agency to regulate and investigate employer compliance with standards intended to protect U.S. workers. The hiring of unauthorized workers and the failure of employers to comply with the commitments they make (e.g., to pay prevailing wages, to have recruited U.S. workers) in obtaining legal permission to hire temporary and permanent foreign workers are violations of such labor standards. Responsibility for enforcing compliance with these requirements currently lies within both INS and DOL. Under consolidation, the DOL Employment Standards Administration's [ESA], Wage and Hour Division [WH] and Office of Federal Contract Compliance Programs [OFCCP] would perform these functions in conjunction with their other worksite labor standards activities.
These increased immigration-related responsibilities would require increased DOL staff and resources. In addition to performing all worksite inspections, DOL would assume new employer sanctions responsibilities. Specifically, the Commission makes the following recommendations regarding the DOL role in regulating the worksite to ensure the protection of U.S. workers.
Sanctions against employers who fail to verify work authorization. Among its provisions that address the problem of unauthorized immigration, the Immigration Reform and Control Act of 1986 made it unlawful for an employer knowingly to hire any alien not authorized to work in the U.S. IRCA requires all employers to check the identity and work eligibility documents of all workers hired. Upon hiring, employees must sign an I9 Form certifying eligibility to work and that the documents they present to the employer are genuine. The employer then signs the form, indicates which documents were presented, and attests that they appear to be genuine and to relate to the individual who was hired. IRCA established penalties both for employers failing to comply with this process and for employers knowingly hiring unauthorized aliens. Pilot testing of a more rigorous verification process recommended in the Commission's 1994 report and adopted in large part in the immigrant legislation passed in 1996 addresses verification problems arising from the widespread use of fraudulent documents by illegal aliens.
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The Commission believes all worksite investigations to ascertain employers' compliance with employment eligibility verification requirements should be conducted by the Department of Labor. Although DOL already conducts many of these investigations, under this recommendation, DOL also would assess penalties if employers fail to verify the employment eligibility of persons being hired. DOL would not be required to prove that an employer knowingly hired an illegal worker, just that the employer hired a worker without verification of his or her authorization to work. With implementation of the Commission's proposal for a more effective verification process, this function will be critical to deterring the employment of unauthorized workers.
At present, INS has the principal responsibility for employers sanctions enforcement, including: investigations and prosecution of ''knowing hires'' of illegal aliens and paperwork violations; worksite raids that apprehend and remove illegal aliens; and development and maintenance of employee eligibility verification programs designed to help employers determine which individuals are authorized to work in the United States. DOL also reviews employer compliance with the employer sanctions verification processes in the course of its on-site visits to workplaces and as part of regular labor standards enforcement activities. DOL Wage and Hour and OFCCP personnel inspect the I9 Forms on file and notify INS of the results of such inspections. DOL also is authorized to issue warning notices to employers when deficiencies are found in an employer's verification process. In practice, however, DOL has rarely issued such warnings.
Although INS and DOL jointly enforce the employer sanctions provisions, INS has the primary responsibility, including assessing civil penalties and initiating legal action. A Memorandum of Understanding between DOL and INS retains for INS the responsibility for promulgating employer sanctions program policy.
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Consolidating verification enforcement at DOL gives responsibility to an agency with extensive experience regulating business compliance with labor standards, an expertise largely lacking at INS. It also permits a relatively high level of enforcement activity, as DOL completes far more employer visits than INS. The number of employer sanctions cases completed by INS has decreased sharply from 14,311 in 1990 to 5,211 in FY 1996, of which 90 percent were cases in which the agency had some reason to believe a violation occurred.. Over the past several years, the number of Wage and Hour on-site investigations also has decreased substantially but is still well above the INS level. The DOL reduction results largely from a greatly expanded use of expedited investigations in the form of employer self-audits and conciliations in place of on-site investigations. For example, Wage and Hour conducted more than 42,000 on-site investigations and corresponding I9 inspections in FY 1990, but less than 23,000 in FY 1996. OFCCP conducts some 4,000 on-site inspections each year. In FY 1996, approximately 70 percent of Wage and Hour investigations were complaint-driven; the remaining 30 percent were directed or targeted. Wage and Hour devotes the equivalent of twenty-one full-time employees to I9 inspections, OFCCP the equivalent of eight.
The Commission recognizes DOL concern that from the begining its assumption of an employer sanctions enforcement role created a potential conflict with its broader mission of protecting the wages and working conditions of workers. Its inspectors worry that workers' fears that such employer sanction actions might result in INS apprehension and deportation could have a ''chilling effect'' on those workers who mightand shouldcome forward to report workplace abuses. For this reason, DOL has been extremely wary of crossing the hard-to-distinguish line where sanctions-related activities might effectively frustrate its ability to protect deserving workers.
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The Commission believes that DOL participation in verifying that only authorized workers are hired should be seen as integral to its mission of protecting U.S. workers. DOL has an essential interest in reducing illegal migration as those employers who hire illegal aliens are more likely to violate the minimum labor standards that DOL is charged with enforcing. A reduction in levels of illegal migration could well be the most effective tool available to enhance protections for legally authorized workers. The primary responsibility of DOL is protecting American workers, and transfer of employer sanctions enforcement to DOL represents the best option for raising the level of enforcement to a point that presents a real deterrent to the employment of undocumented workers.
Enforcement of skill-based immigrant and temporary worker admissions requirements. In our 1995 report to Congress, the Commission urged adoption of streamlined procedures for the admission of skilled foreign workers whom U.S. businesses wish to hire. We continue to believe that an expedited process is needed for the admission of both temporary and permanent foreign workers, as discussed earlier in this report, as long as adequate safeguards are in place to protect the wages and working conditions of U.S. workers. To prevent abuse of an expedited system, an effective post-admissions enforcement scheme is necessary.
DOL's other worksite enforcement responsibilities place it in the best position to monitor employers' compliance with the attestations submitted in the admissions process. DOL investigators are experienced in examining employment records and interviewing employees. Penalties should be established for violations of the conditions to which the employer has attested, including payment of the appropriate wages and benefits, terms and conditions of employment, or any misrepresentation or material omissions in the attestation. Such penalties should include both the assessment of administrative fines as well as barring egregious or repeat violators from petitioning for the admission of permanent or temporary workers.
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When DOL has concluded that an employer is an egregious or repeat violator, and any subsequent administrative appeal has been decided, it would notify the DOS Bureau of Immigration Affairs of such findings, with a recommendation about barring the employer from petitioning for the admission of foreign workers for temporary or permanent employment. The Bureau of Immigration Affairs would then determine if such a debarment is to be made and would notify the employer of its decision. The employer would have the option of appealing such a decision.
ADMINISTRATIVE REVIEW OF IMMIGRATION DECISIONS
The Commission recommends that administrative review of all immigration-related decisions be consolidated and be considered by a newly-created independent agency, the Agency for Immigration Review, within the Executive Branch.
The Commission believes that a system of formal administrative review of immigration-related decisionsfollowing internal supervisory review within the initial adjudicating agencyis indispensable to the integrity and operation of the immigration system. Such review guards against incorrect and arbitrary decisions and promotes fairness, accountability, legal integrity, uniform legal interpretations, and consistency in the application of the law in individual cases and across the system as a whole.
Experience teaches that the review function works best when it is well insulated from the initial adjudicatory function and when it is conducted by decisionmakers entrusted with the highest degree of independence. Not only is independence in decisionmaking the hallmark of meaningful and effective review, it is also critical to the reality and the perception of fair and impartial review.
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To the extent that administrative review of immigration-related decisions is authorized under current law, such review is conducted by several Boards and units located in the Departments of Justice, Labor, and State. For example, within the Department of Justice, the Executive Office for Immigration Review, a separate agency established by regulation in 1983, oversees the system of immigration courts, as well as the Board of Immigration Appeals [BIA]. The BIA, a fifteen-member panel appointed by the Attorney General, has nationwide jurisdiction over a wide range of cases, including decisions of Immigration Judges in exclusion, deportation, and removal proceedings, and requests for relief made in those proceedings. In addition, the BIA adjudicates appeals in several other categories of cases, such as bond determinations, fines, rescission of adjustment of status, and certain family-based visa petitions.
Supplementing their normal hearing docket, Immigration Judges now conduct the final review of the ''credible fear'' of persecution determinations made in the admission/inspection process, as well as determinations that an alien seeking admission is not currently a lawful permanent resident, refugee, or asylee as he or she claims.
The Office of the Chief Administrative Hearing Officer [OCAHO] also is housed in EOIR and is responsible for administering the hearing process issues arising under the employer sanctions, anti-discrimination, and document fraud provisions of the Immigration and Nationality Act.
Within the Immigration and Naturalization Service there is an Administrative Appeals Office [AAO], whose component parts include the Administrative Appeals Unit [AAU] and the Legalization Appeals Unit [LAU]. Unlike the BIA, the AAO does not have a decisionmaking board. Rather, the Chief of the Unit reviews and signs off on decisions prepared by individual examiners. AAO has appellate jurisdiction over petitions and applications in no fewer than thirty-nine subject areas, among which are decisions relating to the breaching of bonds, employment-based visa petitions, adjustment of status for Indochinese refugees, petitions for Amerasian children, fiancés, orphans, temporary workers, permission to reapply for admission after deportation or exclusion, reentry permit waivers for certain grounds of excludability, certification of schools for acceptance of foreign students, applications for refugee travel documents, claims to acquisition of citizenship abroad, applications to preserve residence abroad for naturalization purposes, various applications for certain certificates of naturalization, and applications for temporary or permanent resident status under the regular legalization, Special Agricultural Worker or Replenishment Agricultural Worker programs, and corresponding waivers of inadmissibility.
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Appeals of denials of naturalization applications, however, are not considered by the AAO. Instead, review of such decisions occurs at the INS district office level and is conducted by an officer of equal or higher grade as the initial adjudicator. (If the initial decision denying the naturalization application is sustained, the alien may challenge the decision in federal district court, the court having jurisdiction over the ultimate swearing-in of successful naturalization applicants.)
In the Office of the Legal Adviser in the Department of State, there is a Board of Appellate Review [BAR] vested with jurisdiction to hear, in part, appeals of determinations of loss of nationality or expatriation, and denials, revocations, restrictions, or invalidations of passports.
In the Department of Labor, the Board of Alien Labor Certification Appeals [BALCA], created by regulation in 1987, hears appeals of denials of applications for labor certification.
When considering the appellate review function in its totality, it becomes apparent that responsibility for reviewing enforcement-related decisions rests primarily with the individual components of EOIR, while responsibility for reviewing benefit adjudication decisions is spread across several offices and agencies including the BIA, AAO, INS district offices, BALCA, and, for a more limited set of nationality- and citizenship-related issues, the BAR at DOS. Further, Immigration Judges and the BIA have the authority to provide certain forms of relief during deportation, exclusion, and removal hearings that can result in lawful permanent resident status for aliens.
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Inasmuch as the underlying benefits and enforcement functions performed by the immigration system are themselves dispersed among several Departments, it is not surprising to find that formal administrative review of decisions made in the context of performing those functions is likewise dispersed. However, in light of our recommendations that responsibility for the enforcement of the immigration laws be placed with a new Bureau for Immigration Enforcement in the Department of Justice and that all citizenship and immigration benefits adjudications be removed from the Department of Justice and instead be consolidated in the Department of State, we find that a corresponding change in the placement of responsibility for the review function is in order.
Even with the assignment of the benefits adjudication function to DOS and the enforcement function to DOJ, interrelationships will exist between eligibility for benefits and enforcement actions. Indeed, eligibility for an immigration benefit may be an avenue to relief from deportation, exclusion, or removal while certain immigration violations may present barriers to attaining legal status. For example, favorable disposition of a petition or application by the benefits agency may collaterally resolve a deportation or removal issue. Aliens in enforcement proceedings may be eligible for certain forms of relief involving the same types of legal questions arising in the context of benefits adjudication outside of proceedingsor aliens in proceedings may be foreclosed from eligibility for a benefit applied for outside of proceedings. Ultimately, however, there is a need for a uniform administrative interpretation of what the law is and how it should be applied, regardless of whether the questions arise when adjudicating an application for a benefit or resolving an enforcement action. These considerations lead us to conclude that administrative review of all presently reviewable immigration-related decisions should be consolidated.
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In deciding where the review function could best be performed, the Commission considered a number of options, including separate reviewing bodies for enforcement actions within DOJ and for benefit determinations within DOS, placing responsibility for review entirely with EOIR, and creation of an Article I Immigration Court.
Placing the review function in its entirety with EOIR was an attractive option, particularly given EOIR's success in both insulating the review function and achieving independence of decisionmaking since its inception in 1983. At the same time, EOIR remains located in the Department of Justice, ultimately and predominantly a law enforcement agency. Further, existing procedures permit the Attorney General to reverse or modify any decision reached by the BIA. The Commission, as well as other commentators, find this practice troubling because, at a minimum, it compromises the appearance of independent decisionmaking, injects into a quasi-judicial appellate process the possibility of intervention by the highest ranking law enforcement official in the land, and, generally, can undermine the BIA's autonomy and stature. In the end, the Commission decided the EOIR option was unworkable because of the inherent difficulty of a reviewing agency in one Department rendering decisions in cases initially decided by another Department.
Instead, the Commission was persuaded by the arguments that the review function should be completely independent of the underlying enforcement and benefits adjudication functions and that the reviewing officials should not be beholden to the head of any Department. Although the desired independence could be attained by establishing an Article I Immigration Court, such a court would be part of the Judicial, rather than the Executive Branch. The overall operation of the immigration system requires flexibility and coordination of function, including the review function, by the various agencies in the Executive Branch. Given this reality, the Commission concluded that the review function should be conducted by a newly-created independent reviewing agency in the Executive Branch. To ensure that the new reviewing agency is independent and will exist permanently across Administrations, we believe it should be statutorily created. It would incorporate the activities now performed by several existing review bodies and offices, including the DOJ Executive Office for Immigration Review, the INS Administrative Appeals Office and district offices (naturalization), the DOL Board of Alien Labor Certification Appeals, and the limited set of nationality and citizenship-related matters presently considered by the DOS Board of Appellate Review. The Agency for Immigration Review also would have additional responsibilities.
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Creating any decisional system or tribunal requires attention to several guiding principles. First, no system can work effectively if the personnel who form the base of the decisional pyramid are insufficient in number or deficient in skills and integrity to do the job. Second, the base of any such structure cannot be expanded either in number of its personnel or in extent of its jurisdiction beyond the capacity of the next level above to review and decide the outcome. This must be achieved within a reasonable period and with a reasonable expenditure of resources. Finally, the apex of any decisional pyramid should be relatively small. With these considerations in mind, the Commission proposes the following organization for the new independent Agency for Immigration Review.
This new reviewing agency would be headed by a Director, a presidential appointee, who would coordinate the overall work of the agency, but who would have no say in the substantive decisions reached on cases considered by any division or component within the agency. There would be a trial division headed by a Chief Immigration Judge, appointed by the Director. The Chief Judge would oversee a corps of Immigration Judges sitting in immigration courts located around the country. The Immigration Judges would hear every type of case presently falling within the jurisdiction of the now sitting Immigration Judges.
The new reviewing agency also would consider appeals of decisions by the benefits adjudication agency, using staff with legal training. Although the benefits adjudication agency will handle a wide range of applicationsfrom tourist visas to naturalization and the issuance of passportsnot all determinations will be appealable, as is the case under current law. We envision that those matters that are appealable under current law would remain appealable. The only difference is that the appeal would be lodged with and considered by the new independent Agency for Immigration Review rather than by the various reviewing offices and Boards presently located among the several Departments.
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The administrative appeals division also would consider appeals from certain visa denials and visa revocations by consular officers. Under current law, such decisions are not subject to formal administrative or judicial review.
When a visa is denied, important interests are at stake. To be sure, the visa applicant is adversely affectedbut more importantly at stake are the interests of the United States citizens, lawful permanent residents, employers, and businesses who have petitioned the admission of the applicant or who otherwise have an interest in having the applicant present in the United States. Given the lack of formal administrative and judicial review of consular decisions, these individuals are left with little or no recourse.
The Commission believes that consular decisions denying or revoking visas in specified visa categories, including, all immigrant visas and those nonimmigrant categories where there is a petitioner in the United States who is seeking the admission of the visa applicant, should be subject to formal administrative review. The visa applicant would have no right to appeal an adverse determination. Instead, standing to appeal a visa denial or revocation would lie only with United States petitioners, whether U.S. citizens, lawful permanent residents, or employers.
An appellate Board would sit over the trial and administrative appeals divisions of the new independent Agency for Immigration Review. This appellate Board would be the highest administrative tribunal in the land on questions and interpretations of immigration law. It would designate selected decisions as precedents for publication and distribution to the public at large. Its decisions would be binding on all officers of the Executive Branch. To ensure the greatest degree of independence, decisions by the Board would be subject to reversal or modification only as a result of judicial review by the federal courts or through congressional action. Neither the Director of the reviewing agency nor any other agency or Department head could alter, modify, or reverse a decision by the appellate Board.
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The appellate Board would be headed a Chairman. Both the Chair and Vice Chair would be appointed by the President for staggered terms of at least ten years. The appellate Board would have as many Members, who would be appointed by the Chair, as needed to decide appeals in a timely manner. It would consider appeals from the categories of cases presently falling within the BIA's jurisdiction, subject to the above-noted modifications. In addition, the appellate Board could entertain appeals from decisions of the administrative appeals division in cases in which a novel or significant legal issue were presented, or in any other case in which it was deemed necessary or appropriate.
The Office of the Chief Administrative Hearing Officer, presently housed in EOIR, would operate as a separate component in the Agency for Immigration Review and would perform the same work as is presently being conducted. Of course, the precise organizational arrangements and divisional jurisdictions could be subject to future modification following a comprehensive review by the Agency for Immigration Review of the types and volume of cases received. However, to meet the challenges presented by consolidation of all immigration-related appeals in one place, and to perform its critical mission of correctly and expeditiously resolving appeals, the new reviewing agency must be given sufficient resources and staffing.
While the Commission-recommended structural changes will help improve implementation of U.S. policy, certain management reforms must also be adopted if the agencies responsible for immigration matters are to be effective in performing their functions. Structural reforms will not by themselves solve some of the management problems that have persisted across Administrations in the immigration agencies. The Commission sets out a number of management changes that should help improve operation of the immigration system, including the setting of more manageable and fully-funded priorities; developing more fully the capacity for policy development, planning, monitoring, and evaluation; improving systems of accountability; recruiting and training managers; strengthening customer service orientation; using fees for immigration services more effectively; and improved data and analysis.
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I would be pleased to answer any questions you have about these structural and management reforms.
Mr. SMITH. Thank you, Ms. Martin. Mr. Papademetriou.
STATEMENT OF DEMETRIOS G. PAPADEMETRIOU, SENIOR ASSOCIATE AND DIRECTOR, INTERNATIONAL MIGRATION POLICY PROGRAM
Mr. PAPADEMETRIOU. Thank you, Mr. Chairman and members of the subcommittee.
I'm here to discuss a study that my colleagues, Alex Aleinikoff and Deborah Meyers, and I completed last month. You will find out here in the next 5 minutes that we're all starting from the same premises, the same concerns. Us, Mr. Reyes, the Commission, and probably other members on this panel and the administration, but we've reached an entirely different conclusion. We think that any kind of fundamental reform considering the nature of the problem should think along three fundamental questions or dimensions.
First, is the function assigned to an agency that has a deep commitment to immigration issues and can perform effectively complex tasks? Second, is the proposed structure capable of producing coherence in both policy development and implementation? And third, can the standing of the agency facilitate the ability of the Executive Branch to recruit and retain talented people to perform its various functions?
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Judged by these standards, we believe the Commission on Immigration Reform's proposal is plainly off the mark. By dismantling the INS and distributing its functions to departments, whose core missions are far removed from immigration regulation, the Commission's plan violates all three of those standards.
While we agree with the Commission that enforcement and service responsibilities ought to be separated, we believe that the coherence of immigration policy demands that this function reside within a single agency. This agency should have the standard to be a stronger advocate about its needs within the administration and a more reliable partner to the Congress while also being able to attract talented people, as we propose that the immigration function be elevated.
Furthermore, we urge that immigration functions now scattered across different Federal agencies with a variety of other priorities be consolidated into a single agency. Examples include labor certification in the Labor Department, the passport and most refugee immigration functions at the State Department, and refugee resettlement at HHS. Consolidation should follow a single rule of thumb: if the function or part of it falls squarely within the central mission of the agency in which it resides, it should stay there, if it does not, it should move to the new agency.
There are two ways to accomplish this goal. The first is to establish an independent agency within the Executive Branch to direct the Nation's immigration business. Its purposes would be both facilitating and controlling immigration, enforcing the law and delivering services, removing the deportable and naturalizing the qualified.
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If Congressional energy for real reform of the nature that we're discussing is lacking a second-best alternative would be to elevate the immigration function within the Department of Justice with the creation of a position of an Associate Attorney General for Immigration.
Under both scenarios, service and enforcement functions would be separated within the agency just as the administration proposes. It seems to us, Mr. Chairman and members, that the other options are not up to the task. The Commission's proposal to disperse the functions of the INS to other agencies would hinder policy coherence, handing off to agencies whose institutional commitment is not to immigration, the same problems of accountability, management, and poor service that have dogged the INS.
Furthermore, there would be an extraordinary destruction in carrying out those tasks in the interim. Congressman Reyes's proposal to move the enforcement function into the Department of Justice, which is partly consonant with our second scenario, fails to come to terms with the essential synergy between enforcement and service or to address policies and issues of policy coherence across the entire function.
Finally, simply separating service and enforcement functions within the existing INS is an important step, but it would neither improve policy-making nor ensure that program delivery is consistent with the policy's intent. Most importantly, it would now seem unlikely to close the Agency's credibility gap.
Back in 1970, President Nixon, in creating the Environmental Protection Agency, used reasoning similar to ours when he said, ''. . . every part of government is concerned with the environment in some way, and affects it in some way. Yet each department has its own primary mission . . . which necessarily affects its own view of environmental questions.'' ''Because environmental protection cuts across so many jurisdictions, and because . . . it is of great importance to the quality of life in our country and the world, I believe that in this case a strong, independent agency is needed.''
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We believe that circumstances call for another exception if the function is as essential to sound public policy across a variety of policy domains as we believe it is. Further, if accountability and consistency in program delivery is as weak as many observers argue, and if the service function is as much of a step-child within the INS as even the Agency's friends acknowledge, then creating a new agency may be the way to go.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Papademetriou follows:]
PREPARED STATEMENT OF DEMETRIOS G. PAPADEMETRIOU, SENIOR ASSOCIATE AND DIRECTOR, INTERNATIONAL MIGRATION POLICY PROGRAM
Mr. Chairman and Members of the Subcommittee. My name is Demetrios Papademetriou and I am the Director of the International Migration Policy Program at the Carnegie Endowment for International Peace. Thank you, Mr. Chairman, for asking me to testify about the proposal to restructure the Immigration and Naturalization Service that my colleagues and I developed a few months ago. I am submitting this testimony for the record. I also am submitting an opinion piece that summarizes key elements of our proposal; it appeared on April 24, 1998 in the Los Angeles Times.
A new era of large-scale immigration calls for new forms of governance and management. As we negotiate these demands it is important to ask ourselves a number of critical questions. First, are the intentions of the immigration system clear to all who engage with it? Second, are our institutional structures equal to the task of managing the responsibilities implied by large immigration numbers and ever more complex functions? Third, are various components of the immigration function rationally organized into a set of interrelated elements whose whole is clearly larger than the sum of its parts? Fourth, is the system we have in placeboth in terms of its organization and of its location within our public administration apparatuscapable of delivering all the programs we expect of it? Fifth, can the system satisfy Americans that increasing public investments in the immigration function have in fact improved its two main elements: compliance with the law and provision of services in a timely, fair, and courteous manner? Finally, is the system flexible enough to learn from experience, embrace change, and meet the financial and programmatic criteria of accountability that the public has a right to expect?
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These questions were very much at the core of a study recently completed by my colleagues and I at the Carnegie Endowment. This study's purpose was: to examine whether the institutional framework that has been created to manage our immigration function meets fair and reasonable expectations of program integrity and delivery andif it does notto offer appropriate alternatives. In order to do so, we met with representatives of the Administration, the Congress, interest groups, service providers, and others who have studied these issues; drew on our own knowledge and experiences as well as those of other governments; and reviewed the work of more than a century of study groups, commissions, task forces, congressional committees, and researchers.
Our starting premise was that immigration can best be managed in the context of laws grounded in a realistic policy vision, an appreciation of immigration's relationship to other major domestic policy priorities, and a high degree of clarity about the international objectives and obligations of the United States. Effective day-to-day management, in turn, has four primary ingredients: regulations that make sense, are transparent, and are consistently applied; programs that emphasize an uncompromising commitment to accountability; an institutional culture that understands and internalizes the agency's mission and priorities while embracing and rewarding personal integrity and professionalism; and enough vigilance to identify and fix small problems before they become big ones, while adapting constantly to changing real circumstances that may require adjustments in policy and law.
II. THE IMMIGRATION FUNCTION
In an important sense, there is no single ''right answer'' to the question of where the immigration function should be located or how it should be organized. The system is big, complex, and asked to do many discrete things. An optimal location and structure for offices that grant benefits, and must thus be accessible and ''user-friendly'' to customers, may not be the same as those which optimally serve the needs of officers who investigate immigration violations and arrest and detain people. A system of records that maintains accurate and easily accessible files of lawful immigrants may not be the same system that tracks criminal aliens most efficiently. While form should follow function, flexibility should also be an important organizational principle when ''on-the-ground'' conditions demand it; a picture with neat boxes may be pretty to look at but difficult to implement.
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In this study, we identified some major areas in which form appears to impede function, or in which an important function lacks a location. We then asked how the current structure might be modified to enhance policy coherence, public accountability, and customer service. We did not start from scratch, nor are we simply suggesting changes at the margins. There are some major problems and gaps that demand major changes. Remarkably, we found that the immigration bureaucracy has been plagued by many of the same problems and challenges throughout its history despite numerous congressionally mandated changes and internal restructurings. This finding implied that the questions regarding the most appropriate location and the most effective organization of the immigration function are larger than simply the politics of the moment, U.S. immigration policies, or an administration's management of the agency.
Finally, after evaluating several possible changes of placement and structural reform, we conclude that the salience of migration and citizenship policy today argues in favor of consolidating virtually all immigration functions in a single, independent, Cabinet-level agency. A second-best, but still fundamental, change would be to elevate the immigration function within the Department of Justice through the creation of an Associate Attorney General for Immigration.
Under either alternative, we recommend the complete separation of service and enforcement functions, each with its own career path, chain of command, and system of accountability for the complete delivery of its function. Both functions, however, would ultimately report to the same high-level administrator who also would be charged with the formulation of immigration policy for the Executive Branch. By doing so, we believe that two of the central weaknesses of the management of immigration as it is presently structuredlack of overall policy coordination and unequal attention to the agency's two main activities (enforcement and service)are addressed with clear gains in the accountability of each activity and the consistency of program delivery.
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We also conclude that other options are not up to the task. Simply separating service and enforcement functions within the existing INS could be an important step, but it would not improve policy development and coordination and might not sufficiently close the agency's credibility gap. Nor are we persuaded by the proposal to dismantle the INS and disperse its functions to other agencies. Such a move would transfer core immigration functions to agencies that do not view immigration issues as fundamental to their missions. Moreover, rather than improve policymaking, it would be likely to hinder coherent policy development.
III. HISTORY OF THE IMMIGRATION FUNCTION
Since Congress first began to centralize control over immigration in 1864 with a Commissioner in the State Department, the immigration function has been moved from department to department; substantial internal reorganizations have been even more frequent. Complete control over immigration was given to the Treasury Department in 1891 after an attempt to delegate to the states enforcement of laws against arriving aliens resulted in inconsistencies and inefficiencies. The Bureau of Immigration was transferred to the newly created Department of Commerce and Labor in 1903 because of the latter's focus on enforcing the laws regarding foreign contract labor. The naturalization function was added three years later, and an information division also was added to help immigrants settle throughout the country and compile a list of employment opportunities for them. When the Department of Commerce and Labor was split into two departments in 1913, the Immigration and Naturalization Bureau was shifted to the new Department of Labor and divided into two bureaus, which were reconsolidated in 1933 and renamed the Immigration and Naturalization Service (INS). The INS remained in the Labor Department until 1940 when President Franklin D. Roosevelt's Reorganization Plan transferred it to the Department of Justice as a wartime national security measure. It has remained there since.
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Structural reform proposals date back to the first decades of the 20th century. They consistently have focused on INS' multiple missions (particularly the tension between service and enforcement), the overlap of INS functions with those of other agencies, and INS management. More specifically, they commonly have looked at raising the profile for immigration policy development, consolidating border agencies, consolidating the DOS and INS visa responsibilities, and improving efficiency and management.
The three most recent immigration commissions all have addressed this issue. In 1981, the report of the Select Commission on Immigration and Refugee Policy recommended maintaining the basic structure of the immigration system, with responsibility for visa issuance in the State Department and for domestic operations with the INS. Within this structure, however, SCIRP recommended a clear budgetary and organizational separation of the service and enforcement functions of INS; an upgrading of the level of the Commissioner to Director, and the creation of an Article I immigration court. A staff report noted that if a new immigration system were to be set up, they would recommend a new independent agency, but observed that there would be many jurisdictional and practical problems, such as personnel, that could preclude serious consideration of such an option.
The 1990 report of the Commission for the Study of International Migration and Cooperative Economic Development concluded that reorganization of the immigration function was ''urgently needed.'' It recommended an Agency for Migration Affairs that would centralize immigration and refugee issues, give migration a higher profile on the domestic and foreign policy agendas, and eliminate costly and overlapping activities. AMA would include INS (except for Border Patrol and interior enforcement), the Bureau of Consular Affairs (except assistance to Americans abroad), the Bureau of Population, Refugees, and Migration, and the asylum office at the State Department. In effect, this would have split the service and enforcement functions, which the Commission was concerned were competing for resources, lacked coordination, and caused confusion about mission and responsibilities.
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The final report of the U.S. Commission on Immigration Reform in 1997 recommended a Bureau for Immigration Enforcement within the Justice Department for border and interior enforcement; an Undersecretary of State for Citizenship, Immigration, and Refugee Admissions within the State Department with responsibility for benefit adjudication; an Agency for Immigration Review for independent repeals of administrative decisions; and a transfer of the immigration-related employment standards enforcement to the Labor Department. This fundamental restructuring of the immigration responsibilities according to function, which would eliminate the INS in its present form, was meant to address INS's mission overload, conflicting responsibilities, and poor performance of its responsibilities.
IV. PROBLEMS WITH THE CURRENT STRUCTURE
A. Weak Coherence in Policymaking and Execution and Low Agency Stature
Considering the issue's importance and the lack of a single central location for the routine and ongoing formulation and review of migration policy, one might suppose that the Executive Branch would establish a standing policy group to consider U.S. immigration policies. One might also expect a coordinated policy effort that examines the impact of migration on a variety of domestic and foreign policy realms. That, however, is not the case.
A variety of agencies have various pieces of the overall responsibility for immigration. These tend to be viewed narrowly, and they are principally operational: the INS is charged with most day-to-day program delivery tasks; the State Department deals with visa issuance and most refugee policy issues (the program is delivered by the INS and the Department of Health and Human Services); the Department of Labor weighs in on some work visa issues and helps enforce workplace immigration rules; the Department of Defense gets involved in high-seas interdictions and off-shore safe havens; and the Department of Health and Human Services manages refugee resettlement programs with the assistance of the states and private service providers. When confronted with a major migration crisis, control and coordination shifts to the National Security Council, which seeks information from and gives direction to the relevant departments.
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Major immigration initiatives typically are vetted through the Domestic Policy Council, which in recent years has served more of a coordinating role than a policy formulation function. Routine coordination of agency perspectives on specific issues is handled by a few staff persons at the Office of Management and Budget (OMB). OMB also is responsible for coordinating government-wide responses to congressional requests for an administration position on pending legislation. Impasses at staff level are typically ''kicked upstairs'' to the relevant agencies' political management. Because of the way in which responsibility for the function is dispersed among agencies, and the function's low relative priority within most parent agencies, vetting differences typically does not start until it is very late in the process and consensus is often reached at the last momentleaving both principals and staff exhausted and congressional committees frustrated. The lack of a central location and a formal structure for policy development are thus highly problematic.
B. Poor Customer Service
The budget of the INS has increased by 153 percent in the past five years; during the same period, staff levels have grown by 51 percent. Administration requests for Fiscal Year 1999 seek to increase budget and personnel by an additional 11 and 9 percent respectively. If the recent past is any guide, appropriations may even exceed Administration requests. The vast majority of the increase in appropriated funds has gone to enhanced border enforcement, detention and deportation, investigations, land border inspections, and technology improvements. Servicesincluding adjudication of applications, issuance of documentation, and provision of informationare largely funded out of fees paid by persons filing applications with the INS, and these accounts also have grown significantly in recent years.
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Despite the budgetary increases and growth of fee-based accounts discussed above, the day-to-day service to immigrants and U.S. citizens at immigration offices around the country does not appear to have materially improved. Lines at district offices remain long, telephones go unanswered, files continue to get misplaced or lost, information about particular cases and general policies remains difficult to obtain, and the public's experience with INS service personnel continues to be the agency's number one image problem.
Poor service has consequences beyond the frustrations experienced by individual clients. It implicitly sends a message to U.S. citizens and corporate entities that petition for a foreign-born person, as well as to immigrants who seek a service, that their needs and interests are not valueda message that may eventually impede integration efforts and may also find reflection in public attitudes. Inadequate service also erodes support for the INS and undermines the credibility of agency policy initiatives. Finally, poor service breeds a self-reinforcing culture among agency personnel who, because they receive daily complaints, come to view their customers as adversaries.
C. Service and Enforcement Functions Receive Unequal Attention
In recent years, public attention has focused primarily on the problem of illegal immigration; Congress and the Administration have turned the immigration portfolio, and funding, strongly toward enforcement. This has only served to accentuate the INS's dominant profile as an enforcement agency. (There have been a few notable counter-examples to this characterization, such as the legalization efforts of the late 1980s, and the recent creation of an asylum corps.)
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Some believe(see footnote 2) that the service problems stem from a fundamental conflict between the agency's core functions of deterring illegal immigration and facilitating legal immigration. The combination of enforcement and service functions also has been criticized on the ground that enforcement goals always seem to take precedence over service goals. For instance, money will be made available for expediting removals but not for expediting adjudication of immigrant petitions. Another criticism posits that the culture of the agency has bred an ''enforcement mentality'' that ''infects'' INS personnel undertaking other tasks. As a result, many adjudicators are thought to begin their tasks with a predisposition to doubt applicants and to deny applications.
Whatever the causes, the current INS structure appears to engender conflict and confusion in the performance of the agency's central functions. Those charged with implementing immigration law lack clear guidance on their core missions, how to balance priorities, or how to assign personnel. District Offices bear the brunt of this lack of clarity. They are microcosms of the immigration world: handing out documents, interviewing applicants, interrogating those they arrest, and detaining and transporting deportable aliens. They tend to be located in large cities, but their location is frequently neither convenient for lawful immigrants nor near prime areas for enforcementsuch as major transit routes for undocumented aliens. District Directors are responsible for oversight of multiple functions, including adjudication, investigation, detention and deportation, and records maintenance. They are charged with accomplishing the agency's many priority tasks, as well as responding to day-to-day crises and special cases. Effective management under these circumstances is not impossible; it has, however, proven to be very difficult. Almost invariably, it has been the service side of the agency's functions that has suffered.
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D. Extreme Growth in Work Load and Complexity of Functions
The tasks assigned to the INS have grown dramatically in recent years. The basic functionsborder inspection, adjudication of a variety of immigrant applications, asylum processing, naturalization, and detention and deportation of unauthorized alienshave become remarkably complex. They require policies on such diverse areas as the management of the border, arrests and interrogation, detailed regulations on complicated substantive rules of immigration law, a records systems that includes millions of entries, the production of documents requiring the use of ever more advanced technologies, knowledge of political conditions in foreign countries, the maintenance of a 12,000 bed detention program, and appearances before tens of thousands of immigration court proceedings a year.
IRCA greatly expanded the INS's duties by effectively making the hiring of any personcitizen or alienanywhere in the United States of concern to the INS. Legislation in 1996 charged the INS with a large number of additional inspection and enforcement responsibilities. Yet, this disparate and increasingly complex array of tasks has been imposed on an infrastructure long ignored by the Congress and most administrations. To quote from the Commission on Immigration Reform:
Some of the agencies that implement the immigration laws have so many responsibilities that they have proved unable to manage all of them effectively. . . . Such a system is set up for failure, and with such failure, further loss of public confidence in the immigration system.(see footnote 3)
Page 151 PREV PAGE TOP OF DOC Our own analysis does not support the assertion that the number of tasks assigned to the INS are more than ''any one agency can handle''and our recommendations reflect this conclusion. On the face of it, the INS has no more priorities than the Defense Department, the Department of Justice, Health and Human Services, or the Treasury Department. Moreover, a number of other governmental departments have both enforcement and service components: the State Department issues visas and prosecutes visa fraud; the Department of Labor grants labor certifications and enforces wage and hour laws; the Department of Justice enforces the drug laws and gives grants for drug treatment programs; and the Department of Defense plans for war and is responsible for humanitarian peace-keeping missions. Indeed, any large institution is likely to perform a range of tasks in pursuit of both enforcement and service values.
E. Lack of Accountability
The American people have a right to expect far greater accountability from the immigration system than they now get. Accountability has two dimensions. The first dimensionwe call it external accountabilityis based on the public expectation that important governance functions will be consistent and supportive of each other, and that agencies will deliver their principal functions effectively, both by committing resources in a manner consistent with policy priorities and by achieving publicly announced goals. The second dimensionwe call it internal accountabilitydemands that agency personnel be held responsible for the effective performance of their duties.
External accountability has suffered in the performance of the immigration function. Policies regularly seem to be in tensionsuch as the conflict between admissions policies that seek to enhance our competitiveness and those that seek to protect U.S. workers. Furthermore, a strained overall relationship between the executive and legislative branches has made it more difficult to perform the immigration function well. Poor relations between the two branches on immigration issues, in turn, have produced a congressional tendency to micromanage the issue and undervalue the expertise and experience of the agency's managers and analysts.
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Internal accountability also is inadequate in the performance of the immigration function. Policies and practices vary from district to district, headquarters-to-field communication is notoriously poor, and managers are rarelyif everheld accountable for neglecting the service side of the agency's work or for tolerating enforcement practices that are at variance with agency policies. These problems have persisted whether INS has adopted a centralized or decentralized organizational structure.
Internal accountability demands that an agency develop rules and deliver programs in a fair and consistent manner, and with the highest commitment to personal integrity and professionalism. Whether in the enforcement or service component of a function, nothing undermines an agency's credibility and, gradually, its effectiveness, than repeated failure in accountability.
V. PRINCIPLES AND ELEMENTS OF REFORM
The most appropriate placement of any major function is in an agency whose primary mission is fully consistent with the function's core purposes. The present placement of the immigration function fails this simple test, in part because of the complex and cross-cutting nature of the immigration functionpart service, part enforcement, part regulations, intersecting with policy realms and program domains that are close to the missions of many other agencies. More than any other single reason, and there are many, this is the explanation for the imbalance which characterizes the conduct of our immigration responsibilities. It is also the reason that the INS (and its precursors) shifted location so many times as one or another of its core purposes became paramount.
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As a function changes parent agencies the performance of the function is affected in basic ways. That element of the function that is most consistent with the parent agency's mission becomes dominant; other elements atrophy or are de facto delegated to agencies whose mission is more consistent with that purpose. This is the genesis of many of the immigration service's current predicaments; it also provides the guideposts for resolving them.
If the immigration function were a relatively inconsequential one, as it was during most of the first three decades of its location within the Department of Justice (19401970), the case for dispersing it among agenciesthe proposal of the Commission for Immigration Reformmight be compelling. But even then, the logic of the Commission's proposal would hold true for only part of its implicit conclusion: that police functions are done best by police officers. The other major part of that conclusionthat service functions should be located within the State Departmentstrains credibility in two significant ways. It requires the belief, first, that placing the immigration service function in the State Department would be consistent with that agency's mission and with the world view and career aspirations of its foreign service professionals and, second, that delivering immigration services would necessarily be improvedand within a reasonable timeby such relocation.
As we have already stressed, the immigration function is exceedingly important today. It has become an integral part of the country's ability to put into effect some of its highest policy priorities: enhanced economic competitiveness, consistent social and human resources policies, humanitarian aspirations and obligations, law enforcement and national security responsibilities, and a variety of foreign political and economic policy objectives. Structural reform must correspond to and reflect the function's increasing significance. What, then, might be some key elements of reform?
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A. The immigration function must be organized in a manner and at a level that is commensurate with its importance to our society. The importance of the immigration function, its cross-cutting nature with other critical policy issues, and the need for coherent policy development and execution argues strongly for the consolidation of its component parts and its elevation within the Executive Branch. Consolidation will give the immigration function the common purpose it lacks. It also will allow top management to articulate a coherent vision of the agency's mission (and make explicit the values that must undergird that mission), and hold agency personnel appropriately accountable. Elevating the function will go a long way toward giving it the attention it deserves within the Executive Branch and will help the agency attract the talent it needs to perform its tasks effectively; it also will strengthen its hand in its dealings with the Congress.
B. The government must improve the timeliness, fairness, and efficiency with which it delivers services to immigrants and the many U.S. citizens involved in the immigration process. Structural reform must make improvement of service a top priority. In recent years, Congress and the administration have tended to measure the effectiveness of our immigration policy by such factors as border apprehensions and detention and deportation numbers. It ought also to be measured by declines in waiting times at INS district offices, increases in the timeliness and accuracy of information provided, and the courtesy and efficiency with which the agency's customers are treated.
C. The service and enforcement sides of the immigration system ought to be totally separated along the full continuum of each functionthough staying within a single agency. To ensure better performance and greater accountability, the enforcement and service functions should be separated. This would mean replacing the current District Office structure with two distinct entities, operating under separate chains of command. We will call them Enforcement Sectors and Service Areas. These entities need not (and probably should not) be geographically coterminous. Rather, they would be defined by their respective missions. The boundaries of Enforcement Sectors would be drawn to reflect the location of undocumented populations, transit routes, the location of detention facilities and the like. Service Areas would be constructed around the location of their clientele. Under this conception, immigration officers assigned to one division would not be loaned or detailed to the other; nor would line managers have to guess at the best distribution of resources between enforcement and service priorities.
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This proposed separation is not a panacea. In a world of limited resources, top managers within each function would still face difficult choices, e.g., whether to devote additional resources to employer sanctions enforcement or increased detention; whether to reduce the backlog of naturalization applications or adjustment of status cases. But at least they will be making these choices among options that are of a fundamentally similar character and can be costed and evaluated in fairly similar ways (i.e., overall number of removals, or numbers of cases completed) rather than attempting to weigh enforcement apples against service oranges.
VI. OUR PROPOSALS FOR CHANGE
We believe that the case for dispersing enforcement and service functions among agencies may reflect frustration with INS performance in the service areawhich is understandablerather than a fundamental incompatibility between the agency's two main functions. If anything, keeping the two functions together
actually produces synergies that serve broader public policy goals. For example, attention to potential for fraud properly balances service goals of completing adjudications as quickly as possible and safeguards the integrity of the system. Indeed, it is difficult to see how, without both sides participating, effective policy could be crafted and carried out on a range of issuessuch as the development of documents that both facilitate entry and employment and protect against fraud, or the establishment of an asylum program that can recognize bona fide cases and deter abusive claims.
Page 156 PREV PAGE TOP OF DOC We are also convinced, however, that dramatic change is needed. Yet, change must be manageableand capable of responding effectively to the ills of the current system. Structural change is deeply disruptive both to organizations and the people who work in them. Consequently, proposals must be evaluated not just on the basis of how neat they look in charts, but also on whether the benefits of the proposed change promise to outweigh the costs of getting from here to there. Indeed, because of a general tendency to underestimate the intangible costs of reorganization, we believe that the benefits should substantially outweigh its costs before any particular proposal is adopted.
A number of the ideas we discuss below are not new. This may be good news or bad news. On the one hand, it may reflect a growing consensus on the direction of needed change; on the other hand, it may represent the familiar scenario of good ideas chasing inertia and entrenched interests. As we stated earlier, in our view, there is no silver bullet here. The immigration function is too complex to have a simple structural solution.
A. Create a New Independent Immigration Agency
The structure best suited to address the concerns and sustain the principles we have identified above is a new, independent agency at the Cabinet level that consolidates the functions currently scattered among a number of federal agencies. (See Chart 1 for a possible organizational chart.) This agency would not itself constitute a Cabinet department, however. In this regard, the Environmental Protection Agency is our model: it took the head of the EPA 23 years to gain a seat in the Cabinet, and that may be temporary, reflecting this Administration's interest in the issue. A new immigration agency would combine the immigration functions of the Justice Department; the visa, passport, and most refugee, asylum, and migration functions of the State Department; labor certification from the Labor Department(see footnote 4); and refugee resettlement programs from the Department of Health & Human Services.(see footnote 5)
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Simply stated, an independent or Cabinet-level agency would give the immigration function its due. The current structure plainly is inadequate. The Domestic Policy Council, as noted above, serves more to coordinate and cajole than make policy. It does not have the staff or the expertise to perform serious policy analysis and development. OMB, which has access to more resources, is also hamstrung by the parameters of its role and by the fact that its organization reflects that of the government itselfthe immigration function also is scattered among different divisions. The policy branch of the INS is located well down in the Justice Department structure, and the influence of migration-related policy offices at the Departments of State and Labor are generally not viewed as central to their Departments' missions. Much as environmental policy took a big step up with the creation of the EPA (established in 1970 by the consolidation of 11 programs dealing with the environment(see footnote 6)), the creation of an immigration agency would, for the first time, fully focus the resources of the Executive Branch on the important (and difficult) issues of immigration and citizenship. Such an agency would be best able to develop and implement migration and citizenship policy in a coherent fashion and to provide high levels of both internal and external accountability.(see footnote 7)
The INS currently is larger than several Cabinet agencies in terms of personnel, while its budget is comparable to that of several others. (See Tables 1 and 2).
Beyond coherent policy development and coordination, a new agency offers the following advantages:
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It would attract talented executives at an assistant secretary rank and also mid-level managers and analysts with a range of governmental experience. An infusion of new management and analytical talent would aid policy coherence, engender greater accountability, and stand the best chance of changing institutional ''culture.''
It would have a chance to develop proper relationships with its Congressional oversight Committees, which would now have to deal with a single set of officials. In this scenario, both the agency's responsiveness and its officials' accountability would be expected to improve.
It would separate enforcement and service functions most completely and with less obstruction from entrenched institutional interests.
It could establish most easily a database that would create a single file for an individual as he or she moves through the immigration processfrom the filing of a visa petition and admission to naturalization and the issuance of a U.S. passport.
Some might argue that creation of a new federal agency is not a politically viable option in these times. Committees of Congress charged with oversight of the immigration function have expressed exasperation with current INS operations. Thus, it has been suggested, they will be reluctant to ''reward'' what they view as ineffective management with the elevation of the function to Cabinet level. We believe that this would be a shortsighted approach to the current problems. Other high-immigration countries such as Australia and Canada have established independent agencies to deal with immigration and citizenship. An appropriately funded and staffed agency could resolve the problem of ''mission overload'' currently some attribute to the INS. Indeed, experience has shown that large federal agencies are capable of carrying out a variety of tasks, provided that they have the appropriate leadership, management and resources. The consolidation, integration, and elevation of immigration functions are crucial steps to effective planning and program implementation.
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This proposal also is consistent with the need to propose ''manageable change.'' The various functions currently scattered among the Executive Branch departments are fairly discrete; their transfer to a new agency would not undermine the missions of the departments in which they currently are located. Furthermore, consolidation would reduce the government's transaction costs in both policy development and implementation, and would eliminate the substantial duplication that now exists between the INS and the Justice Department in a variety of areas.
Finally, it might fairly be asked how change at the top levels of the Executive Branch will produce the needed changes at the lower levelsin the day-to-day interactions of government officials and the public. The answer, we believe, is that we are proposing change all along the way: at the top (in the formulation of coherent immigration policy), at the middle (with many new managers and a new emphasis on accountability), and in the field (with the separation of service and enforcement functions).
B. Elevate the Function Within the Department of Justice
The INS is in but not really of the Department of Justice. Traditionally, the Department has exercised supervisory authority over the INS, but frequently it has ignored the agency's day-to-day functioning unless an issue has hit the front page of the newspapers or has come to the attention of a congressional office. More importantly, there is no office at the Justice Department specifically charged with immigration policy development. Such matters have been handledwhen handled at allby staff members of the Associate or Deputy Attorney General. Until 1993, the general attitude of most Attorneys General toward the INS had been one of benign neglect.
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This uneasy bureaucratic relationship does not well serve the formulation and implementation of immigration policy. The Department of Justice clearly has the clout to serve as a major forum for policymaking, but it rarely exercises such authority. The office of the INS Commissioner does not occupy a position high enough in the Executive Branch to fill such a role effectivelythe Commissioner ranks at about the Assistant Attorney General level. (And although the INS is now larger than the FBI, both in terms of personnel and budget, the Commissioner has a lower rank than the FBI Director.)
Formulation of immigration policy needs a higher level bureaucratic home. If our first preferencea new, independent immigration agencyis not in the cards, then policymaking should be elevated within the Department of Justice. Arguably, this option could be carried out simply by the creation of an Office of Immigration Policy within the Justice Department, perhaps akin to the Office of Tax Policy in the Treasury Department (which has no day-to-day oversight of the IRS.) But we think more is needed. We would propose the elevation of the immigration function within the Department of Justice through the creation of an Office of Associate Attorney General for Immigration (AAGI). (See Chart 2 for a possible organizational chart.) The AAGI would be charged with the formulation of immigration policy and also the supervision of immigration enforcement and service functions. In short, the functions currently performed by the INS would be folded into the Department of Justice. The Executive Office for Immigration Review and the Office of Immigration Litigation also would report to the Attorney General through the AAGI, thereby combining oversight of all the department's immigration functions within one office.
Though less desirable than an independent, Cabinet-level agency, this change would still offer a number of advantages over the current structure. First, an Associate Attorney Generala position that ranks substantially higher than an INS Commissionerwould be better able to call upon and coordinate policies and services with sister agencies that have immigration-related responsibilities. To make clear the importance we attach to this aspect of the overall role, we propose that the Associate Attorney General for Immigration chair a standing inter-agency group on migration issues. Departmental policymakers would also be better situated than the INS is now to get the attention of, and to persuade, the White House on important immigration issues.
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In keeping with our analysis above, we would recommend the separation of the enforcement and service functions into different divisions established fully within the Department of Justice. Each would be headed by an Assistant Attorney General and would report to the AAGI.
Folding these functions into the Department of Justice would also provide a modest opportunity for an influx of new talent at mid-level management and analytical positions in the new Offices. (The establishment of the Executive Office for Immigration Review, for example, produced an important upgrading of the immigration court and the Board of Immigration Appeals.) Finally, placing these functions directly within the Justice Department might also spark needed ''cultural'' change in the manner in which immigration laws are implemented and enforced, while creating substantial cost savings and efficiencies by eliminating several levels of overlapping bureaucracy that exist within the current INS/DOJ structure.
While further work remains to be done in fleshing out both proposals, our second proposal is clearly a second best solution because it leaves the immigration functionand therefore the development and coordination of immigration policyfragmented. For example, the development of policy on the admission of temporary skilled workers (such as computer programmers) involves the expertise of the Labor and State Departments and the INS. The distinct and separate missions of these agencies have in the past made coordination difficult. Currently, the resolution of differences must occur at the White House level by staff that lacks the preparation and expertise to do so. Similarly, the admission of an immigrant on an employment-based visa also requires the input of the Labor Department (which must issue a ''labor certification ''), the INS (which must approve a visa petition), and the State Department (which must grant a visa). Although in recent years coordination and cooperation among the agencies may have improved, those attempting to navigate the system still must confront different attitudes, separate forms and records systems, and different administrative procedures and avenues of appeal.
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Twenty-seven years ago, President Nixon proposed establishing a new agency charged with administering U.S. environmental laws. His reasoning is worth quoting at some length here because it parallels closely our own reasoning for calling for a new, Cabinet-level immigration agency.
In proposing that the Environmental Protection Agency be set up as a separate new agency, I am making an exception to one of my own principles: that, as a matter of effective and orderly administration, additional new independent agencies normally should not be created. In this case, however, the arguments against placing environmental protection activities under the jurisdiction of one or another of the existing departments and agencies are compelling.
. . . [A]lmost every part of government is concerned with the environment in some way, and affects it in some way. Yet each department also has its own primary mission . . . which necessarily affects its own view of environmental questions. . . .
Because environmental protection cuts across so many jurisdictions, and because arresting environmental deterioration is of great importance to the quality of life in our country and the world, I believe that in this case a strong, independent agency is needed.(see footnote 8)
We believe that circumstances call for another exception to the extreme skepticism with which proposals for creating new federal agencies are received. If the immigration function is as central to sound public policy across a variety of policy domains as we believe it is; if consistency and accountability in program delivery are as weak as many observers argue; if the service function is as much of a stepchild within the INS as even the agency's friends acknowledge; and if re-arranging organizational boxes within the agencyhowever, radicallywill satisfy neither the agency's critics nor its friends; then, creating a new, independent agency, and giving it the authority, resources, and support it requires to do its job properly becomes a compelling choice. If we decide to go through the political pain, andfrom the perspective of the personnel involved, the genuine angst and uncertainty that fundamental change entailswhy not do things right for a change?
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Mr. SMITH. Thank you, Mr. Papademetriou.
STATEMENT OF RICHARD J. GALLO, NATIONAL PRESIDENT, FEDERAL LAW ENFORCEMENT OFFICERS ASSOCIATION
Mr. GALLO. Good morning, Mr. Chairman, and distinguished members of the subcommittee. It's an honor again for me to be before your committee to present the views of the Federal Law Enforcement Officers Association, FLEOA.
FLEOA is a voluntary, non-partisan professional association representing over 14,000 Federal law enforcement officers. It is the largest association of its kind. Over a decade ago, FLEOA joined with the other major national police associations to form the Law Enforcement Steering Committee. The LESC includes the following organization: FOP, the National Troopers, Major Cities Chiefs of Police, Police Executive Research Forum, National Association of Police Organizations, National Organization of Blacks in Law Enforcement, International Brotherhood of Police Organizations and the Police Foundation.
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In becoming part of this group, Federal agents were able to add our voices to those of the over half a million State and local officers already commenting on the issues that our Association considers to be of great importance. I tell you today, as I have told my membership in the recent past, that the continuing support of immigration law enforcement is one of FLEOA highest priorities.
As National President of FLEOA, I represent many outstanding men and women who enforce our Nation's immigration laws. The INS representation in FLEOA derives from the three organizational divisions: Investigations, Detention and Deportation, and the Border Patrol. These three, along with the Inspections and Intelligence Divisions, represent the enforcement components of the INS. I would ask that you keep them, and the complex bureaucratic framework in which they operate, at the forefront of your thoughts because I believe this is the essence of both the present problem and the potential solution.
With the passage of the Anti-terrorism and Effective Death Penalty Act of 1996 and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, INS was given new authorities, including wiretaps, RICO, and undercover investigative authorities. This very important legislation highlighted the Congressional expectation that INS play a larger and increasingly critical role in law enforcement activities.
I know that I speak for all INS enforcement agents when I commend this body, and your counterparts in the Senate, for what my members tell me is the most dramatic piece of immigration enforcement legislation of the 20th Century. However, as this century rapidly comes to a close, I respectfully recommend that the subcommittee's work must continue. In order to properly use the new tools it has been given, FLEOA believes there must be a dynamic change in the INS organizational structure.
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On April 23, 1997, I had the privilege to speak before this subcommittee on alien smuggling and illegal immigration, from the border into the interior of the United States. At that time, I called for more INS resources for interior enforcement. I also called for a structural split between INS enforcement and service component. At that time, FLEOA supported the idea of an intra-agency separation, due to the nexus between immigration benefit services and immigration law enforcement.
Since my testimony, Mr. Chairman, we have come to recognize that our earlier position recommending an internal partition between benefits and enforcement did not go far enough. While INS interior enforcement still requires additional resources and greater emphasis, FLEOA is absolutely convinced that a more profound structural change of the organization is necessary.
I respectfully submit that the time has come for INS to be split into two separate bureaus within the Department of Justice. Immigration law enforcement must be professionalized and depoliticized. Creating two separate bureaus within DOJ is essential. It would provide the specialization necessary to resolve ''mission overload,'' It would eliminate the intense competition for resources between service and enforcement components within the same agency. And, it would eliminate the possibility of a ''tilt'' in emphasis by a single administrator or top agency management toward, or against, either function.
Conversely, placing the two functions under one cabinet department as opposed to subdividing and scattering a host of the INS's current components among several different agencies would assure continuity of communication, coordination, and oversight within the Executive Branch and the Congress. Cooperation is critical in such areas as continued access by the immigration enforcement components to data and benefits records. This could be ensured as part of any reorganization legislation. Establishing two separate enforcement and benefit bureaus through legislation would avoid a constant budget battle within the same agency between the two different, but equally important missions. It would also eliminate reprogramming of funds from one side to the other by a single agency administrator with a bias toward one or the other function.
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Mr. Chairman, just as the Congress has constructively revised the provisions of the Immigration and Nationality Act in recent years, so must it mandate revision of the INS organizational structure. There have been several recent bills and reports recommending a stand-alone bureau for enforcement with realigned geographical areas. FLEOA supports establishing a separate immigration enforcement bureau within DOJ somewhat along the lines of H.R. 2588 proposed by Congressman Reyes of Texas during this Congressional session.
The INS themselves initiated a report describing the Investigations Division's participation in the Organized Crime Drug Enforcement Task Force and this INS project detailed a step-by-step process for reinventing the administration of immigration law enforcement.
In conclusion, Mr. Chairman, FLEOA strongly urges Congress, through the appropriate subcommittees, to examine and then to adopt into legislation, the above recommendations for reorganization of the INS. INS district directors face severe pressure to provide services for aliens, and when confronted with inadequate resources, have frequently used enforcement agents as a labor pool to perform non-enforcement duties. This practice has continued for over 20 years and shows no signs of diminishing at all.
Mr. Chairman, if one sentence can sum up FLEOA's testimony, it is this, this comes from the mouths of the Federal agents on the lines out there enforcing immigration law. INS struggles under an obsolete and confused organizational structure. Without the creation of a distinct bureau for immigration law enforcement, it is unlikely that the legislative innovations passed by the 104th Congress in 1996 will ever be used to their full potential.
Page 167 PREV PAGE TOP OF DOC On behalf of FLEOA, and the dedicated men and women risking their lives enforcing America's immigration laws, I thank you.
[The prepared statement of Mr. Gallo follows:]
PREPARED STATEMENT OF RICHARD J. GALLO, NATIONAL PRESIDENT, FEDERAL LAW ENFORCEMENT OFFICERS ASSOCIATION
Good morning, Mr. Chairman and distinguished Members of the Subcommittee. I am honored to submit this written statement in support of my oral testimony for such an important hearing. The Federal Law Enforcement Officers Association (FLEOA), is a voluntary, non-partisan professional association.
FLEOA currently represents over 14,000 federal law enforcement officers and is the largest association for federal officers of its kind. Several years ago, FLEOA joined with all of the major state and local police national associations to form the Law Enforcement Steering Committee. The Law Enforcement Steering Committee also includes the following prominent and important organizations: Fraternal Order of Police, National Troopers Coalition, Major Cities Chiefs of Police, Police Executive Research Foundation, National Association of Police Organizations, National Organization of Blacks in Law Enforcement, International Brotherhood of Police Organizations and the Police Foundation. In becoming a part of this group, federal agents were able to add our voices to those of the over half a million state and local officers already commenting on the issues that our Association considers to be of greatest importance. I tell you today, as I have told my membership in the recent past, that the continuing support of immigration law enforcement is one of our highest priorities.
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As National President of FLEOA, I represent many of the outstanding men and women who enforce our Nation's immigration laws. The INS representation in FLEOA derives primarily from three organizational divisions: Investigations, Detention & Deportation, and the Border Patrol. These three, along with the Inspections and Intelligence Divisions, represent the enforcement components of the INS. I would ask that you keep them, and the complex bureaucratic framework in which they operate, at the forefront of your thoughts because I believe this is the essence of both the present problem and its potential solution.
With the passage of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), INS was given specific new authoritiesincluding wiretap, RICO, and undercover investigative authorities. This very important legislation highlighted the congressional expectation that INS must play a larger and increasingly critical role in law enforcement activities. I know that I speak for all INS enforcement agents when I commend this Body, and your counterparts in the Senate, for what my members tell me is the most dramatic piece of immigration enforcement legislation of the 20th Century. However, as this century rapidly comes to a close, I respectfully recommend that the Subcommittee's work must continue. In order to properly use the new tools it has been given, we believe there must be a dynamic change in the INS organizational structure.
On April 23, 1997, I had the privilege to speak before this Subcommittee on alien smuggling and illegal immigration, from the border into the interior of the United States. At that time, I called for more INS resources for interior enforcement. I also called for a structural split between INS enforcement and service components. At that time, FLEOA supported the idea of an intra-agency separation, due to the nexus between immigration benefit services and immigration law enforcement. Since my testimony, Mr. Chairman, we have come to recognize that our earlier position recommending an internal partition between benefits and enforcement did not go far enough. While INS interior enforcement still requires additional resources and greater emphasis, I am absolutely convinced that a more profound structural change of the organization is necessary.
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I respectfully submit that the time has come for INS to be split into two separate bureaus within the Department of Justice (DOJ). Immigration law enforcement must be professionalized and depoliticized. Creating two separate bureaus within DOJ is essential. It:
would provide the specialization necessary to resolve ''mission overload;'' would eliminate the intense competition for resources between service and enforcement components within the same agency; and it would eliminate the possibility of a ''tilt'' in emphasis by a single administrator or top agency management toward, or against, either function.
Conversely, placing the two functions under one Cabinet Departmentas opposed to subdividing and scattering a host of the INS's current components among several different agencieswould assure continuity of communication, coordination, and oversight within the Executive Branch and the Congress. Cooperation is critical in such areas as continued access by the immigration enforcement components to data and benefits records. This could be ensured as a part of reorganization legislation. Establishing two separate enforcement and benefits bureaus through legislation would avoid a constant budget battle within the same agency between the two different, but equally important, missions. It would also eliminate reprogramming of funds from one side to the other by a single agency administrator with a bias toward one or the other function.
Mr. Chairman, just as the Congress has constructively revised the provisions of the Immigration and Nationality Act in recent years, so must it mandate revision of the INS organizational structure. There have been several recent bills and reports recommending a stand-alone bureau for enforcement with realigned geographical areas. FLEOA supports establishing a separate immigration enforcement bureau within DOJ somewhat along the lines in H.R. 2588 proposed by Congressman Reyes of Texas during this Congressional Session.
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During the 103rd Congress, former Congresswoman Molinari of New York recommended a reorganization of the field enforcement operations of INS into multi-state geographical areas to be known as ''enforcement sectors''. FLEOA recommends that the Congress and this Subcommittee explore the possibility of combining the elements of these two bills to establish an immigration enforcement bureau that fully integrates enforcement functions within the new agency's structure. As you know, the present structure encompasses both immigration districts and border patrol sectors whose jurisdictions overlap, and whose top officials report through different chains of command.
A 1991 General Accounting Office (GAO) General Management Report entitled Immigration Management: Strong Leadership and Management Reforms Needed to Address Serious Problems, identified changes in the evolving INS enforcement mission. The report noted, ''During this period INS saw its enforcement mission evolve from one aimed primarily at interdicting aliens at or near the border to one with increased emphasis on investigative work and drug interdiction.'' GAO recommended the consolidation of ''. . . all field enforcement functions, including Border Patrol and District enforcement organizations, under a revised field structure that would centralize all INS enforcement functions under a single official within a geographic area.'' We heartily endorse the GAO recommendation which, after seven years, has never been seriously examined by the INS leadership.
We believe that immigration law enforcement functions should be integrated within a single set of geographic boundaries, eliminating overlap and establishing a clear and efficient national law enforcement chain of command. This direct line structure would be more effective in carrying out a uniform national enforcement program and would also better meet the needs of other federal, state and local law enforcement agencies. One bureau for immigration enforcement, with field components reporting to the agency headquarters, would ensure proper allocation of enforcement personnel, equipment, and funding. Employee morale would be significantly enhanced because agents would have a clear sense of mission, and the knowledge that their superiors would support their efforts and accomplishments. A more uniform application of enforcement efforts would inevitably result from (1) the separation of enforcement from benefit services functions, and (2) the development of enforcement sectors with integrated components.
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In 1992, the INS produced a report describing the Investigations Division's participation in the Organized Crime Drug Enforcement Task Force (OCDETF). This INS OCDETF Pilot Project Report detailed a step by step process for reinventing the administration of immigration law enforcement. The time has come to reexamine some of these recommendations . . . and to take them a step further.
The OCDETF Pilot Project Report recommended that the Headquarters enforcement elements of the INS, currently made up of the Border Patrol, Investigations, Inspections, Intelligence, and Detention & Deportation, be separated internally from the immigration benefit services programs. Under the approach taken by the report, both the immigration benefits services and immigration law enforcement functions and components would remain within the existing bureau, the INS. However, as discussed earlier, it is FLEOA's opinion that a separate agency is the preferred course of action. We also believe that the interrelationships between immigration benefits services and immigration enforcement activities can be maintained by enacting a requirement within any reorganization legislation, providing that enforcement components would have continued access to immigration data, benefits records, and statistics or intelligence produced by the benefits component. Concurrently, that component would be authorized by statute to retain its ability to refer applications to the enforcement component for follow-up investigations.
Under the changes proposed by HR 2588, the newly created bureau would be headed by the Director of Enforcement and Border Affairs, a career law enforcement officer who would have a status in rank equal to that afforded the heads of other federal law enforcement bureaus such as the Marshals Service, the Bureau of Prisons, the Federal Bureau of Investigation, or the Drug Enforcement Administration.
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We believe that the different enforcement components within a Bureau of Immigration Enforcement could be integrated within a single set of geographic boundaries at the field level called ''Enforcement Sectors.'' These Enforcement Sectors would operate domestically (but could also be extended overseas to include Western Hemisphere, Europe/Africa, Asia/Pacific enforcement sectors). The Enforcement Sectors would be managed by a ''Chief Enforcement Officer'' (CEO), with branch managers under the Chief for the following componentsBorder Patrol, Investigations, Inspections, Detention/Deportation and Intelligence. The Chief would oversee all enforcement activities within his or her respective Enforcement Sectors; would ensure coordination among the enforcement components; and would conduct ongoing liaison with the separate immigration benefits service bureau's field directors and asylum offices within that Sector's geographical area. The Chief would report to the Director, Bureau of Immigration Enforcement Headquarters.
ENFORCEMENT SECTOR COMPONENTS:
The establishment of integrated sub-units at the field level would ensure an appropriate level of specialization while maintaining flexibility, and would facilitate a cooperative and balanced approach. Frankly, the establishment of a Chief Enforcement Officer who supervises all enforcement components and reports to the Headquarters Director, is an idea whose time has come. This concept begs for congressional attention. It is needed to overcome the inefficient and incredibly confusing status quoor even the half-steps that are envisioned under an internal benefits-versus-enforcement split within INS.
Page 173 PREV PAGE TOP OF DOC The Border Patrol is the largest enforcement component within INS. Its traditional responsibility is patrolling the border between ports of entry. In recent years, the span of Border Patrol activities has extended to include drug interdiction and tactical operations. Under the new immigration law enforcement bureau concept, a Deputy Chief for Border Patrol Operations would report to the Chief within a respective Enforcement Sector.
The Investigations Division is the general and criminal investigative arm of the ''Enforcement Sector,'' and should be responsible for all complex, protracted investigative activities. It is FLEOA's recommendation that the Investigations component operate in a manner similar to that of most major federal investigative agencies and detective bureaus. Investigative activities should place more emphasis on proactive criminal investigations in the following functional areas: anti-smuggling, benefit application fraud, document fraud, worksite enforcement, and participation in multi-agency task forces including OCDETF, Joint Terrorism Task Forces, Violent Gang Task Forces, and INS-led Community Based Task Forces. This division would be overseen by a Deputy Chief for Investigative Operations, reporting to the Chief of the Enforcement Sector.
The Detention/Deportation component is responsible for the care and custody of the alien population detained by the Enforcement Sector; it is responsible for managing the alien docket and bond control, and for arranging removal of aliens from the United States. FLEOA believes that this component should also be responsible for the processing and removal of all foreign nationals incarcerated in federal, state, and local correctional institutions or jails. The Deputy Chief for Detention & Deportation Operations would oversee this unit, and would report to the Chief Enforcement Officer.
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The Inspections component is responsible for the inspection of applicants seeking admission to the United States at air, land and sea ports of entry. The Inspections Division facilitates an integrated approach to border management and promotes cooperation with other inspectional agencies such as the Customs and Public Health Services. As with the others, the Deputy Chief for Inspections Operations would report to the CEO.
The Intelligence component within the Enforcement Sector should play an integral role in support of the other enforcement components. Intelligence officers should be integrated into each field enforcement component unit. The Deputy Chief for Intelligence and staff would be responsible for the collection of information, analysis of information, and reporting of intelligence product upward through the new organization and outward to other components. The Deputy Chief would also serve as a primary liaison point with the Directors of Adjudications Service Centers, Directors of Asylum Offices, and any enforcement units remotely posted to the field benefits offices, adjudications service centers or asylum offices, to assist in their anti-fraud efforts. The Deputy Chief for Intelligence Operations would report to the CEO.
Mr. Chairman, FLEOA strongly urges Congress, through the appropriate Subcommittees, to examine and then to adopt into legislation, the above recommendations for reorganization of the INS. INS District Directors face severe pressure to provide services for aliens, and when confronted with inadequate resources, have frequently used enforcement agents as a labor pool to perform non-enforcement duties. This practice has continued for over twenty years and shows no signs today of diminishing. We believe that diversion damages the professional image of immigration law enforcement officers, it diminishes their capacity to provide assistance to other federal, state and local law enforcement agencies and the communities they serve, and it fails to provide protection for our society at large.
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INS struggles under an obsolete and confused organizational structure. Without the creation of a distinct bureau for immigration law enforcement, it is unlikely that the legislative innovations passed by the 104th Congress in 1996 will ever be used to their full potential. Only through streamlining the bureaucracy, overcoming institutional inertia, and establishing balance through a separation of functions, can modern day immigration law enforcement be successful. I ask this Subcommittee to do everything within its power to effect this change for the good of our nation and the preservation of the world's most generous system of legal immigration. The creation of a new Bureau of Immigration Enforcement will allow this to come to pass.
On behalf of FLEOA, and the many dedicated men and women who risk their lives enforcing our immigration laws, I appreciate your time and attention, and the opportunity to share our views. Thank you.
Mr. SMITH. Thank you, Mr. Gallo.
STATEMENT OF DIANA AVIV, ASSOCIATE EXECUTIVE VICE PRESIDENT FOR PUBLIC POLICY, COUNCIL OF JEWISH FEDERATIONS
Ms. AVIV. Mr. Chairman, Congressman Watt, members of the subcommittee, thank you for the opportunity to present the Council of Jewish Federations' views concerning the potential restructuring of the U.S. Immigration and Naturalization Service.
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The Council of Jewish Federations represents 189 local Jewish Federations, the largest base of Jewish communal involvement and action in this country. The Federation system has been involved deeply in U.S. immigration policy for over 100 years. The Federations and their affiliated agencies have assisted thousands of refugees, asylees, and legal immigrants every day by helping them with their business before immigration officials and providing vital services that will facilitate their integration and acculturation into our society, and guiding them in their efforts to become U.S. citizens.
Through these activities, we have learned a great deal about immigration matters and we have deep longstanding experience with the Immigration and Naturalization Service.
Mr. Chairman, there are few who are familiar with the workings of the INS who will disagree that this agency has not functioned properly for decades. Our complaints of poor service date back to as long as we've had contact with the INS. Almost anyone who has had first-hand experience with this agency can report examples of poor service. While some changes have been initiated to address many of the problems, our local service agencies tell us that those who assist legal immigrants and refugees continue to be frustrated by INS operations.
And with over two million immigrants waiting to become naturalized citizens and backlogs resulting in a 2-year wait in some districts, added to all the structural problems, we believe that fundamental change is necessary and urgent. Overarching these problems is the fact that the INS has failed to learn the basic lesson of business that others mastered years ago. Customer service is key. When walking into an INS office, people are still greeted by long waits, uncomfortable chairs, few, if any translation services and staff who will not or cannot take the time to answer questions.
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There are very valid concerns that the work of interior enforcement units has resulted, in some cases, in instances of abuse and violations of civil rights of ethnic minorities who are legally living in the United States, many of them native-born Americans because they are viewed by agents as immigrants. There have been recent incidents of Border Patrol INS agents who are complicit, if not actively participating, in violations of Fourth and Fifth Amendment Rights of immigrants and ethnic minorities based upon their appearance or language.
INS headquarters has an institutional history of being unable to provide effective guidance to districts on managing the dual priorities of enforcement and service long before Commissioner Meissner took the reins. Mr. Chairman, as we describe to you these problems, we caution and urge you not to jump to the wrong conclusions about what needs to be done to solve the problems.
In our view, the wrong changes could do more harm than good. The guiding objective that should frame any reforms associated with INS is that any changes must enable the new structure to meet its mandate efficiently, effectively, and fairly. We are very much aware that the change in the structure might involve additional public expenditures, however, in our view, such funds would be most likely necessary if we are to do the job right. Any solution that exacerbates the complexity of the bureaucracy should be regarded with great skepticism.
Mr. Chairman, we believe the following principles should guide the restructuring of the INS and I will not detail them fully, but request that my full statement and a copy of our recommendation be included in the record.
Page 178 PREV PAGE TOP OF DOC The culture of the INS office must be one of service. The overriding change needed in the provision of all INS services is one of attitude. Immigrants, refugees, and asylees seeking services must be treated as customers, not adversaries. Of primary importance is that processed applications and adjudications must be timely without undue waiting for either interviews or determinations. Any restructuring must also address personnel training and there must be opportunities to report about inadequate service and inappropriate actions taken by personnel who fail to meet basic standards of service.
Local INS and regional offices must be willing to meet on a regular basis with not-for-profit agencies, such as ourselves, assisting people with business with the INS. We should be seen as partners in this enterprise.
Secondly, there must be a clear separation between service and enforcement personnel functions. The two functions should be totally separated in terms of change of command, career tracks from the deputy commissioner level to local field staff. Each area should have staff at equal rank and deputy commissioners should report directly to the commissioner. And at the local level, the service and enforcement functions should each have their own district director and not be co-located.
Number three, while this separation is necessary, it should not be absolute. The wall separating these two functions needs to have windows.
Number four, communication and shared data must be available between enforcement and service offices.
Page 179 PREV PAGE TOP OF DOC Number five, there must be consistency in the implementation of policies in all INS offices here and abroad. All relevant personnel, not just directors, must be familiar with and apply in an even-handed manner National policies.
Number six, there must be a structure for appealing decisions and recourse for other problems.
And number seven, all fees collected for services must be expended on services alone. Just 1 second on these. The fees should be used to supplement, not replace direct annual appropriations from Congress and should be made available for enforcement purposes. As the organization is restructured, Congress should commit to ceasing the diversion of examination fees to the enforcement sector and appropriate money, at least, to subsidize those service functions for which no fee is charged, as well as those functions which benefit both sectors.
And finally, no matter how the organization is restructured, it is our view that the visibility within the administration should be elevated and there are a number of proposals on the table on how to do that. We believe that greater inter-agency coordination is necessary and that White House involvement in immigration policy and priority setting is necessary.
We have some comments about the Commission on Immigration Reform's proposals. I see that I'm out of time so, I'll be happy to include it in my submitted testimony. Thank you for this opportunity.
[The prepared statement of Ms. Aviv follows:]
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PREPARED STATEMENT OF DIANA AVIV, ASSOCIATE EXECUTIVE VICE PRESIDENT FOR PUBLIC POLICY, COUNCIL OF JEWISH FEDERATIONS
Mr. Chairman, Congressman Watt, members of the Subcommitteethank you for the opportunity to present the Council of Jewish Federations' views concerning the potential restructuring of the U.S. Immigration and Naturalization Service. This issue is of great importance to my community since the efficiency of this institution has a direct impact on the lives of those in our community who have come to the United States as legal immigrants or refugees and look forward to the great privilege of becoming American citizens. We appreciate your holding hearings to review the current status of INS operations and consider some recommendations for improving an agency that has not operated effectively, accountably or efficiently for decades.
Founded in 1932, the Council of Jewish Federations (CJF) was created to be the national association of local Jewish Federations. It now represents 189 local Jewish Federations which among other functions, support and facilitate the provision of health and social services to vulnerable and frail members of our community living in approximately 800 localities. The Federation system represents the largest base of Jewish communal involvement and action in this country. Financial support is provided to thousands of community-based programs including refugee resettlement services, family service agencies, vocational services, community centers, hospitals, elderly housing facilities and nursing homes.
The Federation system has been deeply involved in U.S. immigration policy for over 100 years. Federations and their affiliated agencies assist thousands of refugees, asylees, and legal immigrants every day by helping them with their business before immigration officials, providing vital services that will facilitate their integration and acculturation into our society, and guiding them in their efforts to become U.S. citizens. Since its inception, a core mission of the Federation system has been the rescue and protection of Jews and others faced with persecution in their countries of origin. Along with other Jewish organizations, especially our national migration agency the Hebrew Immigrant Aid Society (HIAS), we have resettled refugees and immigrants in over 200 communities throughout the United States. Since the end of World War II, in cooperative effort with the United States Government, we resettled nearly one million refugees and immigrants. We also have worked with the Congress and federal agencies to create programs and enact laws that reflect our national humanitarian values and provide the necessary resettlement assistance to those who come to this country with little, but are prepared to start anew and contribute much.
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Over the past 50 years, the Federation system has rescued and resettled people displaced by World War II, assisted Jews escaping from Iran, Syria and elsewhere in the Middle East, aided in the rescue and resettlement of refugees from Hungary, Poland, Romania, and other communist countries in Eastern Europe, and, of course, helped bring hundreds of thousands of Jews and others fleeing religious persecution in the former Soviet Union to safety and freedom in the U.S. and in Israel. Over the past two decades, our community has resettled approximately 440,000 refugees from the former Soviet Union, Iran, Bosnia, Indo-China and other parts of the world, including many non-Jewish refugees.
Through these activities, we have learned a great deal about immigration matters. We have deep and long-standing experience with the Immigration and Naturalization Service and other federal agencies involved with immigration policy and program. Many of our resettlement and social service agencies are accredited by the Board of Immigration Appeals. Through the years, we have had first hand experience with local INS offices across the country and with national headquarters on a broad range of issues. Our experience includes the INS's management of the adjudication process, refugee admission and naturalization of legal immigrants, refugees and asylees. Through our work with colleagues in other religious organizations and ethnic groups we have also come to appreciate some of the problems with INS concerning enforcement of our immigration laws.
Mr. Chairman, there are few who are familiar with the workings of the INS who will disagree that this agency has not functioned properly for decades. Our complaints of poor service date back to as long as we have had contact with the INS. Almost anyone who has had firsthand experience with this agency can report examples of poor service, including not having inquiries responded to, loss of documents, incorrect processing of applications, incomprehensible decision making, unfriendly customer service, personnel who were unable or unwilling to trouble shoot and operational decisions that were neither effective nor sensible. In the areas in which we have had a great deal of experience, refugee admissions to the United States, adjustment of status and naturalization processing, problems in recent years appear to have increased as a result of the very large numbers of new applicants seeking to become naturalized because of the immigration related legislation enacted over the past couple of years. When INS Commissioner Meissner came into office she inherited a broken agency and noted that one of her objectives was to pay greater attention to operations related to naturalization. We supported this worthy objective.
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To date, some efforts have been made to improve various areas of INS operations. However, given the magnitude of the problems even with the changes that have been initiated, our local community service agencies who assist legal immigrants and refugees continue to be frustrated by INS' processes and procedures and believe that a band-aid approach that only superficially addresses some of the outstanding problems will not produce the kind of fundamental changes that are necessary to make this agency well able to perform the important responsibilities and functions that are its mandate. With over two million immigrants waiting to become citizens and with backlogs resulting in a two-year wait in some districts, change is necessary and urgent. We have a moral obligation to make the changes at the earliest possible opportunity that will enable the INS to become effective. These newcomers are people who have entered the United States legally, have dutifully waited their turn and in an orderly way begun the process of naturalizing only to find that the agency charged with the responsibility of naturalization is all too often part of the problem rather than part of the solution.
While we may all be able to describe unhappy experiences at the hands of INS officials, we caution and urge you not to jump to the wrong conclusions about what needs to be done. We are most anxious to see changes to the current structure and operation, yet the wrong changes will most certainly do more harm than good. For that reason, the Council of Jewish Federations convened a working group of Jewish organizations concerned with immigration and refugee issues, including many with broad experience working with the INS, to analyze the problems and consider possible remedies. This testimony includes the analysis and recommendations of these deliberations undertaken by the Council of Jewish Federations, the Hebrew Immigrant Aid Society (HIAS), the American Jewish Committee (AJC), the New York Association for New Americans (NYANA), and the Jewish Federation of Metropolitan Chicago.
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The major problems with the naturalization process that we have confronted include: though are not limited to, poor service at the local service centers, delays in criminal background checks, and problems with the new disability waivers. The INS simply does not have enough trained staff to process and interview applicants fast enough to reduce the growing backlog. In spite of the huge increase in the number of naturalization applications received in 1995 and subsequent years, the number of workers assigned to naturalization declined between 1996 and 1997 from 289 to 194 in New York; 269 to 231 in Los Angeles; 73 to 57 in Chicago, and 127 to 118 in Miami. According to a recent report by Gary Rubin of NYANA, INS acted on 37% fewer applications in 1997 than in 1996 in New York; 76% fewer in Miami; and 67% fewer in Los Angeles as a result of these staff reductions and new political pressures.
Criminal background checks are delayed so long that fingerprint cards expire and applicants have to be re-fingerprinted, further delaying the process, adding another burden for the applicant, and costing the INS an estimated $19 million.
The new system of disability waivers is causing increased delays instead of expediting processing because the INS has not provided doctors with adequate instructions to complete the disability waiver form and field offices have yet to be given guidelines or training concerning the provision of reasonable accommodations for the elderly and disabled.
Many local offices are reported to be unresponsive to inquiries and uninterested in providing adequate service to applicants, local agencies, or those representing them. Those who deal with local offices complain bitterly that many of the INS staff dealing with the naturalization process do not treat immigrants or their representatives and families with respect and courtesy. The prevailing impression given at many sites is one of distrust and suspicion of the applicant. Our local agencies point out that it is not logical or reasonable to expect INS staff associated with enforcement and keeping unauthorized newcomers out of the U.S. to be the best equipped to help facilitate the naturalization process for qualified applicants.
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Problems also can be found in INS' adjustment of status process. The lack of resources, human and other, also create delays in adjustment of status. We are hearing from clients who need to have their status adjusted and are eligible to do so that they are facing increasingly lengthy delays for interviews. This is true even though the number of applicants has remained relatively stable, unlike the situation with naturalization applicants which had a huge surge over the past three years.
We have also noted serious problems with INS operations overseas. For example, as part of the U.S. refugee admissions program in the former Soviet Union (FSU), all refugee applicants must still travel to Moscow for their interviewsthe only INS interviewing site in a region encompassing 15 countries and 11 time zones. The financial and physical hardship of this travel is exorbitant. In most other countries, ''circuit rides'' are done in order to facilitate access for those unable to reach the site. In Haiti, INS had three refugee processing sites. For over five years, we repeatedly called this to INS' attention, but to date no changes have been implemented.
We are pleased to note that the INS has made substantial progress in dealing with problems that were undermining the credibility of our asylum system. Specifically, the January 1995 regulations ended most abuses in the asylum system. In spite of this success, however, Congress enacted the expedited removal provisions of the Illegal Immigration and Immigrant Responsibility Reform Act of 1996 (IIRIRA) which we fear may result in the return of qualified asylees to their persecutors. A recent study by Karen Musalo and Deborah Anker, two of the nation's leading experts on asylum, raises serious concerns about the way expedited removal is being implemented including sharp inconsistencies based on nationality and port of entry. Their data is drawn from information gathered by interviewing asylum seekers and non-governmental organizations, because the INS has refused access to the Secondary Inspection Process to anyone outside its own staff.
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These concerns are only heightened by the fact that enforcement inspectors now have sole discretion to make the decisions to remove aliens from our shores, a power which makes them arresting officer, prosecutor and judge. Without any of the traditional avenues of appeal available to the applicant, errors in judgement, personal prejudice, mistreatment or simple misunderstandings can go uncheckedwith potentially disastrous consequences. Any restructuring of the INS must remove all adjudicatory powers from inspectors and other enforcement officers. These powers should be reserved for immigration judges and trained immigration examiners.
Overarching all of these problems is the fact that the INS has failed to learn the basic lesson that businesses and others mastered years agocustomer service is key. When walking into an INS office, people are still often greeted by long waits; uncomfortable chairs; few, if any, translation services and staff who cannot or will not take the time to answer questions. Of course, these problems just magnify the frustration of applicants who pay substantial fees for low quality services. Amazingly, despite these quality and timeliness issues, the INS plans to increase significantly several of the fees it charges for naturalization services in the coming months. What appears to be missing in these offices is a system of accountability so that poor performance, lack of responsiveness and unnecessary delays are reported and acted upon by managers in charge. More training of INS officers dealing with naturalization is necessary in order to ensure a more customer friendly environment. Additionally there should be consequences for INS officers who fail to perform their duties and meet the basic requirements of the job.
Of the 26,000 employees of the INS, 19,000 are involved in enforcement. In fact, the INS now has more armed agents than any other federal enforcement agency. For decades, INS' enforcement efforts have focused on controlling the borders and rightfully stopping smugglers of immigrants and drugs. In the past several years the Administration and Congress have placed an increased emphasis on the presence of INS agents in the interior of the nation.
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There are very valid concerns that the work of the interior enforcement units has resulted in instances of abuse and violations of civil rights of ethnic minorities, particularly Latinos, who are legally living in the US, many of them native born citizens, because they have the appearance of immigrants. It is quite unacceptable that INS agents would target certain ethnic communities or conduct raids without ''reasonable cause.'' Special steps must be taken to avoid this kind of stereotyping and targeting.
There have been incidents recently of Border Patrol and INS agents who were complicit, if not actively participating, in violations of the 4th and 5th amendment rights of immigrants and ethnic minorities based on their appearance or language. Having reviewed INS statistics on removals, the National Council of La Raza and other organizations report that INS agents are increasingly targeting Latinos and have been detaining and mistreating U.S. citizens and lawful permanent residents in the process.
Immigrant and civil rights organizations have been appalled by accounts of unprofessional behavior and, on occasion, unlawful action during immigration raids across the country. Eyewitness accounts and newspaper reports have detailed stories of abuse and ethnically selective enforcement of immigration laws in Latino communities, such as those noted in Katy, Texas in 1994; Crescent City, Florida and Chandler, Arizona last year and in southern Maryland, Seattle and in Miami just last week. These incidents speak to the need for increased training and clear procedures that are vigorously adhered to by INS enforcement agents. Any effort to reform the INS would not be credible if it did not address these problems by establishing a clear chain of command in the enforcement hierarchy and requiring greater personal accountability for misdeeds.
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Under its current structure, the INS has been unable to focus adequately and evenhandedly on its dual responsibilities of enforcement and service. At the local level, the enforcement side is generally the predominant culture and INS district directors have not uniformly seen to it that their employees treat applicants with courtesy, provide them with timely information, or process applications efficiently and in a reasonable amount of time. Moreover, to some local INS offices, not-for-profit agencies and religious organizations such as ours are seen as an inconvenience and as meddlers. Some offices do not respond to our inquiries and have simply ignored requests for meetings. This is not to say that there aren't some local offices that do a good job. Unfortunately, though, these offices are the exception than the rule.
INS headquarters has an institutional history of being unable to provide effective guidance to the districts on managing the dual priorities of enforcement and service. Until the INS no longer has to contend with the conflict between service and enforcement policy priorities and confusion of mission by its personnel, customer service will be severely short changed.
The guiding objective that should frame any reforms associated with the INS is that any changes must enable the new structure to meet its mandate efficiently, effectively and fairly. We are very much aware that change in structure might involve additional public expenditures and have sought to take those additional costs into consideration. This Congress has frequently expressed a strong commitment to ensuring that government be part of the solution and not the problem. Any solution that exacerbates the complexity of the bureaucracy should be regarded with great scepticism. While fundamental change is called for, such change must be achievable and in the long run be cost effective.
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Mr. Chairman, we believe that the following seven principles should guide the restructuring of the INS. In order to be brief, I will not fully detail every aspect of the recommendations, but I request that my full statement, including a copy of our proposal be included in the record.
These recommendations are the basic components we deem necessary in any restructuring of the INS functions in order to ensure that services to new arrivals and those seeking naturalization, adjustment of status, or asylum are accessible, efficient, timely and fair and that those applying for these services are treated with courtesy and respect. Enforcement functions also must be properly and fairly implemented without violating the civil rights of any individual or group.
I. THE CULTURE OF INS OFFICES MUST BE ONE OF SERVICE.
The overriding change needed in the provision of all INS services is one of attitude: immigrants, refugees and asylees seeking services must be treated as customers, not adversaries. INS employees, from desk clerks to interviewers, must have a ''customer service'' orientation so that applicants are treated with respect and courtesy. Assistance should be provided wherever possible whether responding to a phone call or an in-person request. The atmosphere in local and district INS offices should be welcoming, not intimidating. This includes, but is not limited to, ensuring that there are chairs to sit in; clean, attractive waiting areas; easily accessible information in several languages about various services available; staff who are knowledgeable and responsive to questions; and available of forms and written information about the process and its timetable. All personnel should understand that customers are entitled to information, assistance and respect at every stage of the process.
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Of primary importance is that the end product of service, that is, a processed application and adjudication, must be timely without undue waiting either for an interview or a determination.
Any restructuring of the INS must address personnel training, maintenance and appointment of physical office space, accessibility of information and applications and reasonable time frames for the service provided. There must also be opportunities to report about inadequate service and there must be appropriate actions taken with personnel who fail to meet basic standards of service. Customers must be given clear information about timetables and procedures and any changes there to must be widely announced.
INS local and regional offices must be willing to meet on a regular basis with not-for-profit agencies assisting people who have business with the INS. This should be both a matter of policy and of regular practice. Information about procedural changes, forms and other relevant data should be available immediately to these community agencies. Such agencies should not be viewed by the local offices with suspicion, but rather as partners in the important function of helping eligible people to become naturalized citizens and helping others with a broad array of issues requiring INS involvement.
II. THERE MUST BE A CLEAR SEPARATION BETWEEN SERVICE AND ENFORCEMENT PERSONNEL AND FUNCTIONS.
In order to assure that the service requirements are attained, INS personnel cannot be considered interchangeable. Personnel on the service side should not come from the Border Patrol or other enforcement divisions of the INS. The inherent adversarial nature of enforcement positions makes it difficult to develop the attitude and skills required to perform the service functions.
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In order to ensure that both service and enforcement at INS are adequately attended to, the two functions should be totally separated in terms of chain of command and career tracks from the Deputy Commission level to local field staff. Each area should have staff at equal rank and Deputy Commissioners who report directly to the Commissioner.
At the local level, the service and enforcement functions should each have their own district director and should not be co-located. Two separate career paths need to be developed for immigration law enforcement and services. Job descriptions in the latter category should include previous experience in the delivery of services. Such a dual structure may add cost and numbers to the bureaucracy, but it will increase efficiency and productivity and alleviate many of the problems faced by immigrants seeking service. Adequate levels of federal funds should be authorized and appropriated to make this possible.
III. WHILE THIS SEPARATION IS NECESSARY, IT SHOULD NOT BE ABSOLUTE, THE WALL SEPARATING THE TWO FUNCTIONS NEEDS TO HAVE WINDOWS.
INS examiners and enforcement personnel need to work together and share data in order to investigate and prosecute immigration fraud, particularly when perpetrated by alien smugglers and document vendors. INS should look to the police/prosecutor relationship as a model of how two separate agencies could work together in this way, and should study how other federal agencies use separate enforcement agencies to investigate and prosecute fraud.
IV. COMMUNICATION AND SHARED DATA MUST BE AVAILABLE BETWEEN ENFORCEMENT AND SERVICE OFFICERS.
Page 191 PREV PAGE TOP OF DOC Although the skills and attitudes are very different for law enforcement officers and service adjudicators, the information they each gather can be critical to the other's work and should be shared. An enforcement officer who detains a foreign national at a port of entry must be able to check the detainee's claim that she or he is a lawful permanent resident of the U.S. entitled to re-entry after a trip abroad. A naturalization interviewer likewise must be able to verify that no violations of immigration law have occurred. There needs to be a single accurate data base that is accessible to both divisions.
V. THERE MUST BE CONSISTENCY IN THE IMPLEMENTATION OF POLICY IN ALL INS OFFICES.
National policies need to be clearly presented to all INS offices, here and abroad, so that all relevant personnel, not just the directors, are familiar with and apply in an even handed manner these national policies. Regional/district directors as well as local office directors, line staff and interviewing officers need to have access to the most recent regulations and directives from Washington. Oversight of the implementation of national policy here and abroad should be made a top priority of the national office.
In addition, structures for better day-to-day supervision and quality assurance also need to be clearly established. Any reorganization of the services side of INS must include a clear line of authority, clearly defined areas of discretion on the part of local directors and a system of checks on uniformity in the U.S. and abroad. Waiting periods for those in the naturalization process or for any other service provided by the INS local office should be the same across the country. Accordingly the INS should deploy resources to ensure a more uniform waiting period nationwide and the appropriate location of offices that are easily accessible through public transportation.
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VI. THERE MUST BE A STRUCTURE FOR APPEALING DECISIONS AND RECOURSE FOR OTHER PROBLEMS.
Within whatever service structure emerges, it is essential that there be an easily accessible appeals process for those who believe the decision on their application was in error, and a ''complaint office'' where grievances can be heard in a timely and fair manner. Data on appeals and grievances should be made available to not-for-profit organizations assisting individuals with matters before the INS.
Additionally, all complaints regarding civil and human rights violations must be swiftly reviewed and appropriate action taken. Special steps must be taken to ensure that the civil rights of any group is not violated by agents of the INS. To achieve this goal, we recommend that training programs take place on an ongoing basis. Enforcement procedures must be monitored on a regular basis to ensure that such violations do not recur. Should such violations repeat, there must be consequences for the personnel involved.
VII. ALL FEES COLLECTED FOR SERVICES MUST BE EXPENDED ON SERVICES.
All fees collected by the immigration service should be spent on service delivery and improvement. These fees should be used to supplement, not replace, direct annual appropriations from Congress and should not be made available for enforcement purposes. At this time, a number of INS ''services,'' such as examinations receive no appropriations from taxpayer funds and are fully self-financing. Indeed, some of the fees result in excess revenue that is diverted by Congress to pay for asylum adjudications, denaturalization proceedings, and removal proceedings. Thus, applicants pay for services that they do not receive and that are the proper domain of the federal government. As the organization is restructured, Congress should commit to ceasing this diversion its examination fees to the enforcement sector, and should appropriate money at least to subsidize those service functions for which no fee is charged as well as those functions which benefit both the enforcement and service sectors (i.e. automation, information management and new sites for naturalization and enforcement offices). Similarly, the INS should be granted the discretion to subsidize these programs with fee income until Congress provides an adequate level of appropriations, so long as it is not at the expense of naturalization and legislative action is taken in a timely manner.
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A national fee waiver policy also must be in place to assure that everyone who is eligible for a service can receive it regardless of their ability to pay. This policy must be implemented consistently in all offices.
The immigration services agency should have the authority to determine the allocation of fee income in order to enhance the integrity and efficiency of the services consistent with the law and the intent of Congress.
Furthermore, appropriations for enforcement must be totally separate and apart from any federal funds for service provision.
We believe that any reform proposal should also incorporate the following three concepts.
No matter how the organization is restructured, its visibility within the Administration should be elevated.
The complexity and the breadth of the work undertaken by this institution calls for a much higher level status while still being accountable for its activities. Whether this be a cabinet level agency or whether the Commissioner reports directly to the Attorney General and has equal rank as that of the Director of the FBI, the INS must have a higher level status within the Administration. To better facilitate communication and to enhance accountability we recommend that an office be created in the Department of Justice specifically charged with immigration matters. The office of the Associate Attorney General for Immigration should include senior personnel , who should also supervise the Executive Office for Immigration Review (EOIR), which oversees all immigration judges and the Board of Immigration Appeals (BIA) . The Associate Attorney General should work with the Commissioner, Deputy Commissioner and the two Associate Commissioners for Enforcement and for Services.
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When service and enforcement are separated, it will be essential to distinguish between their respective functions.
Since the passage of IIRIRA, the lines between enforcement and service have been further blurred. As indicated earlier, immigration inspectors, who carry guns and traditionally have acted as airport border guards, have been empowered by IIRIRA to also act as prosecutor, judge, and jury. Inspectors may now summarily detain and exclude individuals from the United States without a possibility of appeal.
Enforcement personnel should be directed to identify individuals to be removed from the United States, but only an adjudicator from the ''service side'' should be permitted to make the decision concerning the removal. This would not require a substantive change to IIRIRA but, rather, a technical amendment so that all primary inspections be done by enforcement (inspectors), and the ''secondary inspection'' and final determination concerning exclusion and removal be made by the service division (examiners).
Finally, there must be greater inter-agency coordination and White House involvement in immigration policy and priority setting.
To accomplish this, we propose that the White House co-convene along with the INS Commissioner a council that includes senior representatives of all government agencies involved in immigration related matters to facilitate the work of all such departments and ensure a coherent national immigration policy and program.
Page 195 PREV PAGE TOP OF DOC Mr. Chairman and Mr. Watt, we carefully reviewed various proposals that have been offered to restructure the INS and concluded that some would do more harm than good. We believe that it would be regrettable to embark upon the worthy course of reforming this agency only to find ourselves worse off than we were when we began.
We are grateful to the Congress for initiating this process of review several years ago, and making it possible for the Commission on Immigration Reform to review the situation and make recommendations as appropriate. There is much about the Commission's analysis about the problems characterizing the INS with which we wholeheartedly agree. However, we believe their conclusions would head us precisely in the wrong direction. For this reason, I would like to take a few moments to share our deep concerns of where we respectfully believe that they are in substantial error.
As you know, the Commission on Immigration Reform's (CIR) recommends that the INS essentially be dismantled and its functions be dispersed among different federal agencies. Under this proposal, immigration enforcement would remain under the jurisdiction of the Department of Justice (DOJ) but in a newly created Bureau of Immigration Enforcement. Adjudications of eligibility for non-immigrant and immigrant related petitions and applications and requests for naturalization would be administered by the Department of State (DOS) under a new section headed by an Under Secretary for Citizenship, Immigration and Refugee Admissions. Enforcement of immigration related employment standards would be handled by the Department of Labor (DOL). Finally, a new independent administrative agency, the Agency for Immigration Review, would be created to review various immigration decisions.
In our view, the CIR's recommendations would dramatically increase the size of the bureaucracy involved in the immigration function without necessarily addressing the basic problems confronting the Service. Anyone who has had to deal with a number of different federal agencies on one matter knows how complicated it is. Intra-agency work is challenging enough. This proposal calls for interfacing with three different cultures, three sets of operational styles, turf questions, differing legal opinions and more. The Department of State in our experience has hardly had a sterling reputation in the administration of their immigration related functions.
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The principle function of the Department of State is to carry out foreign policy, yet the adjudication of applications and petitions for immigration benefits is not a foreign policy issue. While mass and unexpected migrations throughout the world do have an impact on the national security and may have an impact on our foreign policy considerations, they have very little to do with the adjudication of immigration applications. Moreover, DOS views its current immigration responsibilities in a truly ''plenary'' manner and has always resisted formal reviews of its consular decisions.
Historically, the DOS has not given priority to consular services and has been opposed to administrative and judicial review of its consular decisions. It is unlikely that the status and culture of the consular service would improve with the addition of new adjudicative responsibilities for a broad variety of complex cases. Similarly, there is little reason to believe that the 5,000 INS and DOL staff that the CIR recommends transferring to the DOS would be able truly to integrate into the organization. It is unlikely that the culture and mission of each agency would permit a seamless and effective incorporation of these functions because they simply are not compatible.
The transfer of the labor-related enforcement functions to the DOL also will be subject to mission and culture conflicts that would make employment related enforcement ineffective. In fact, the DOL continues to express concern over its ability to enforce labor and wage standards if they are also made responsible for immigration enforcement. For example, it would be difficult for the DOL to develop relevant information on wage and labor abuses if the sources of that information are threatened with deportation. Consequently, the plan advanced by the CIR is unlikely to enhance the enforcement of the labor standards or even the effective removal of illegal aliens, and in fact may promote an increase in labor and immigration violations.
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Mr. Chairman, no doubt you will hear about other proposals that seek to divide the INS and place these functions separately in different federal agencies. As we have attempted to point out, these functions are distinct and should be carried out by different personnel, but a lot of the information is organically linked and should be available through one integrated technical system managed by a high level Administration official. All aspects of the system must have built in checks and balances and must be accountable. We do not believe that dividing the Agency into two or three splintered parts with no organic relationship among those parts managed by senior officers in the same agency accountable to one director will solve the problems that need to be addressed. We believe that such an arrangement, while satisfying some anger and frustration will exacerbate the situation. We rue the day that we may have to work with two or three time as many agencies on the same tasks.
Mr. Chairman, I would like to conclude my remarks by again thanking you and the members of the Subcommittee for this opportunity. It is my hope that the Subcommittee will take these recommendations under advisement when formulating a plan to restructure the INS. Immigrants, refugees, and asylees who have come here legally and played by the rules deserve the chance to be able to become an American citizen in a timely, efficient manner. Their transition to American citizenship should be a positive experience working with an agency that affirms their decision to become a citizen of this great country.
ATTACHMENT: RESTRUCTURING THE IMMIGRATION AND NATURALIZATION SERVICE: PRINCIPLES AND POLICY RECOMMENDATIONS
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This paper reflects the positions of the Council of Jewish Federations (CJF), Hebrew Immigrant Aid Society (HIAS), American Jewish Committee (AJC), New York Association of New Americans, Inc. (NYANA), Jewish Council for Public Affairs (JCPA) and the Jewish Federation of Metropolitan Chicago regarding the restructuring of the Immigration and Naturalization Service (INS). These recommendations are the basic components we believe necessary in any restructuring of the INS functions in order to insure that services to new arrivals and those seeking citizenship (naturalization, adjustment of status, asylum, etc.) are accessible, efficient, timely and fair and that the those applying for these services are treated with courtesy and respect.
1) The culture of INS offices must be one of service.
A) The overriding change needed in the provision of all INS services is one of attitude: immigrants, refugees and asylees seeking services must be treated as customers, not adversaries. INS employees, from desk clerks to interviewers, must have a ''customer service'' orientation so that applicants are treated with respect and courtesy. Assistance should be provided wherever possible whether responding to a phone call or an in-person request. The atmosphere in local and district INS offices should be welcoming, not intimidating. This includes but is not limited to ensuring that there are chairs to sit in; clean, attractive waiting areas; easily accessible information in several languages about various services available; staff who are knowledgeable and responsive to questions; availability of forms and written information about the process and its timetable. All personnel should understand that customers are entitled to information, assistance and respect at every stage of the process.
Of primary importance is that the end product of service, that is, a processed application and adjudication, must be timely without undue waiting either for an interview or a determination.
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B) Any restructuring of the INS must address the issue of personnel training, maintenance and appointment of physical office space, accessibility of information and applications and reasonable time frames for the service provided.
C) INS local and regional offices must be willing to meet on a regular basis with not-for-profit agencies assisting people who have business with the INS. This should be both a matter of policy and of regular practice. Information about procedural changes, forms and other relevant data should be available immediately to these community agencies. Such agencies should not be viewed by the local offices with suspicion, but rather as partners in the important function of helping eligible people to become naturalized citizens and helping others with a broad array of issues requiring INS involvement.
2) There must be a clear separation between service and enforcement personnel.
In order to assure that the service requirements are attainable, INS personnel must not be considered interchangeable. Personnel on the service side should not come from the Border Patrol or other enforcement divisions of the INS. The inherent adversarial nature of enforcement positions makes it difficult to develop the positive attitude and interpersonal skills required to perform the service functions. The law enforcement training, experience and attitude are not appropriate to service provision and are not easily altered even with new training.
Two separate career paths need to be developed for immigration law enforcement and services. Job descriptions in the latter category should include previous experience in the delivery of services. While such a dual structure may add cost and numbers to the bureaucracy, it will increase efficiency and productivity and alleviate many of the problems faced by immigrants seeking service.
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3) Communication and shared data must be available between enforcement and service officers.
Although the skills and attitudes are very different for law enforcement officers and service adjudicators, the information they each gather can be critical to the other's work. An enforcement officer who detains a foreign national at a port of entry must be able to check the detainee's claim that she or he is a lawful permanent resident of the U.S. entitled to reentry after a trip abroad. A naturalization interviewer likewise must be able to verify that no violations of immigration law have occurred. There needs to be a single accurate data base that is accessible to both divisions.
4) There must be consistency in the implementation of policy in all local offices.
National policies need to be clearly presented to all District and local offices so that all officers, not just the directors, are familiar with national policies. Regional/district directors as well as local office directors, line staff and interviewing officers must have access to the most recent regulations and directives from Washington. Oversight of the implementation of national policy must be a major component of national office responsibility. Local offices must be able to appeal to appropriate staff at headquarters for specified concerns if problems are not adequately addressed by the regional/district office.
In addition, structures for better day-to-day supervision and quality assurance also need to be in place. Any reorganization of the services side of INS must include a clear line of authority, clearly defined areas of discretion on the part of local directors and a system of checks on national uniformity. The waiting period for those in the naturalization process or for any other services provided by the INS local office should be the same regardless of where they live. Accordingly the INS should deploy resources to ensure a more even waiting period and that the location of offices are easily accessible through public transportation. Local offices must be easily accessible to customers.
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5) There must be a structure for appealing decisions and recourse for other problems.
Within whatever service structure is reengineered or reorganized, there needs to be an easily accessible appeals process for those who believe the decision on their application was in error, and a ''complaint office'' where those who feel they have been unfairly or inappropriately treated can go to redress their grievance. Appeals must be completed within a reasonable time frame. Such information should be available to the not for profit organization working with the individuals having business with the INS.
6) All fees for services must be expended on services.
All fees collected by the immigration service should be spent on service delivery and improvement. None of these funds should be available to the enforcement structures. A national fee waiver policy must be in place to assure that everyone who is eligible for a service can receive it regardless of their ability to pay the fee. This policy must be implemented consistently in all offices.
The immigration services agency should have the authority to determine the allocation of fee dollars in order to enhance the integrity and efficiency of the services consistent with the law and the intent of Congress.
Direct annual appropriations from Congress are appropriate and necessary for a variety of immigration services especially non-fee based services such as asylum adjudications and refugee services. Special appropriations would be required for large scale efficiency enhancements such as major computerization improvements, hiring of additional personnel, and processing unanticipated large caseloads in a given year.
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Appropriations for enforcement must be totally separate and apart from any federal funds for service provision.
II. COMMENTS ON THE U.S. COMMISSION ON IMMIGRATION REFORM FINAL REPORT
In September of 1997, the Commission on Immigration Reform (CIR) issued a final set of recommendations on the future of the immigration policies with a special focus on the structure that would accommodate the implementation of these policies. The CIR concludes that the immigration system is broken, that INS should be dismantled and its functions be dispersed throughout the federal government. CIR recommends that immigration enforcement at the border and in the interior of the United States remain under the jurisdiction of the Department of Justice (DOJ) but in a newly created Bureau of Immigration Enforcement. Adjudications of eligibility for non-immigrant and immigrant related petitions and applications and requests for naturalization would be transferred to the Department of State (DOS). The CIR also recommends creation of a position of Under Secretary for Citizenship, Immigration and Refugee Admissions within the Department of State. Enforcement of immigration related employment standards would be transferred to the Department of Labor (DOL). Finally, the CIR recommends the creation of a new independent administrative agency that would be responsible for the review of various immigration decisions, and this agency would be called the Agency for Immigration Review.
These recommendations reflect a general sense of frustration expressed by key legislators, editorial boards, the public and applicants for immigration benefits who are calling for a fundamental reform of how the federal government carries out its immigration functions. Among those who follow immigration policy there is a general consensus that the INS is in need of significant improvement and a strong sentiment to change INS operations.
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The CIR report asserts there is ''mission overload,'' where the INS is unable to address adequately a range of priorities that deserve its equal attention. In fact the problem has been less a question of mission overload and more a lack of clarity of purpose and focus combined with structural weaknesses that rendered the Service unable to meet adequately its mandate. While the INS has taken significant steps to address programmatic and administrative challenges set by Congress in the last three years, nevertheless the agency has become so overwhelmed that the focus on one set of priorities undermines its ability to carry out equally important commitments associated with other priorities, particularly in the field of adjudications that recently have become subject of extraordinary political scrutiny.
The agency remains confronted by a set of complex and divergent responsibilities and priorities that at times appear to compete with one another. The view advanced by the CIR is that the immigration function has two components: enforcement and service. The CIR finds that these functions are incompatible within one agency. Noting the history of the INS with its emphasis and institutional development as the ''enforcement agency'' the CIR essentially gives up on the possibility that the INS can be reformed within its present structure. For this reason it recommends that the ''service'' and some enforcement functions be divided up among the DOS and the DOL.
Adjudication and enforcement functions of balanced and comprehensive immigration policy implementation require adherence to the principles of due process and the rule of law. Because enforcement and adjudication functions require a combination of these elements, scattering some of these functions may be too drastic. While the enforcement mentality does invade the service end of the INS, it is also true that the service side to some degree has a moderating effect on enforcement.
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It is questionable whether comprehensive policy determination and equitable implementation will be enhanced if immigration related functions and responsibilities are dispersed throughout the executive branch. Effective implementation of policy requires that responsibility for the immigration enforcement and adjudication of benefits remain within one agency but with some structural adjustments that would enhance the importance of each function. A unified focus would lead to accountability, effective and streamlined oversight and responsiveness to the needs of the American people, who have the most to gain or to lose be they employers, asylum seekers, legal residents or citizens.
There is much in the CIR's analysis and observations that is worthy of further consideration. For example, the Commission notes the challenges associated with rapid and unprecedented growth of a federal agency, along with the overwhelming changes in the law that have an enormous impact on enforcement and adjudication priorities that, as parts of the comprehensive policy implementation, require equal levels of attention.
In the last three years, Congress passed two massive immigration laws and a welfare reform law that fundamentally alter significant portions of immigration enforcement and adjudication procedures. Implementation of the hundreds of pages of new laws requires promulgation of thousands of pages of new regulations that cut across agency lines. How quickly and properly these changes are implemented depends on the complexity and the clarity of the laws. Vague and imprecise legislative language necessarily leads to confusion, misunderstanding and delays.
The singular thrust of the lawsin this case on enforcementcan further erode genuine efforts to implement a truly comprehensive immigration policy. In short, the legislative focus on enforcement and restrictions can undermine agency's efforts to fulfill its obligations in the area of benefit adjudications. In this sense, the CIR report is not complete because it fails to note in detail that the level of Congressional frustration at unmet expectations is, to a certain extent a reflection of shortcomings in the legislative drafting and cannot be placed entirely on the steps of the implementing agency.
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The CIR also notes the urgent need for development of timely extensive and accurate analysis of the immigration trends along with other detailed statistical and analytical information on all aspects of migration that are essential for planning, policy development and policy implementation. The implementation would require an integrated data collection with uniform and consistent set of guidelines. However, under the CIR's proposal where major immigration functions are scattered throughout several agencies, collection and dissemination of such information will turn into a complex undertaking.
The principle function of the Department of State is to carry out foreign policy, yet the overall adjudication of applications and petitions for immigration benefits is not a foreign policy issue. While mass and unexpected migrations throughout the world do have an impact on the national security and may have an impact on our foreign policy considerations, they have very little to do with the actual adjudication of immigration applications. Moreover, DOS views its current immigration responsibilities in truly ''plenary'' manner and has always resisted any formal review of its consular decisions. If refugee and asylum adjudications are transferred entirely to the DOS, the process may become more politicized. Processing of asylum requests for Salvadorans, Guatemalans and Nicaraguans in the 1980's comes to mind. There should be substantial concern for consequences of foreign policy considerations and humanitarian and legal due process responsibilities coming under one umbrella of the DOS.
The DOS historically has not given required priority to consular services, and has been opposed to administrative and judicial review of its consular decisions. It is unlikely that with additional adjudicative responsibilities for a broad variety of complex cases, this culture of resistance could be easily overcome. The prudence of transferring these functions to DOS becomes even more problematic if the focus is on the role of the DOS in the post-cold war era, rather than what is in the best interest of the well functioning adjudication system.
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The CIR proposes that approximately 5,000 INS and DOL staff be transferred to the DOS. It is unlikely that the culture and mission of each agency would permit a seamless and effective incorporation of these functions because they are not totally compatible with either of the proposed new functions.
The transfer of the labor-related enforcement functions to the DOL will also be subject to mission and culture conflicts that would make immigration enforcement ineffective. For example, DOL continues to express concern over its ability to enforce labor and wage standards if they are to be responsible for immigration enforcement. Their concern is the same as that of law enforcement and benefit agencies that question their ability to prevent crimes and disease if they are engaged in immigration enforcement. It would for example, be difficult for the DOL to develop relevant information on wage and labor abuses if the sources of that information are threatened with deportation. Consequently, the plan advanced by the CIR is unlikely to enhance the enforcement of the labor standards or even the effective removal of illegal aliens, and in fact may promote an increase in labor and immigration violations.
Much of the CIR's proposal is premised on the concept of improving ''service'' with the view of an immigrant shifting from an applicant to a customer. While improving adjudication function remains a crucial priority, it is essential to ensure that the emphasis on service accommodations will not lead to perception that adherence to due process and the rule of law are sacrificed in the name of the service. For this reason, benefit adjudication function should remain with the DOJ with a greater emphasis on ''efficiency'' rather than just service.
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The following recommendations on the restructuring of INS are offered as an integral package. If only some of the recommendations below are adopted, the immigration bureaucracy's poor track record of providing fair, friendly and efficient customer service will likely continue unabated.
(1) INS Needs to be Restructured
Under its current structure, the Immigration and Naturalization Service (INS) has been unable to focus adequately and evenhandedly on its dual responsibilities of enforcement and service. At the local level, the enforcement side is generally the predominant culture, and INS District Directors are unable to ensure that their employees treat applicants with dignity; provide them with timely information; or process applications efficiently. INS Headquarters has an institutional history of being unable to provide effective guidance to the districts on managing these priorities. Until INS no longer has to contend with the conflict between service and enforcement policy priorities, INS will not be able to provide an acceptable level of customer service.
(2) INS Needs to Build a Wall Between Enforcement and Service
In order to ensure that both service and enforcement at INS are adequately attended to, the two functions should be totally separated in terms of chain of command and career tracks. At the local level, the service and enforcement functions should each have their own district director and should not be co-located. Adequate levels of federal funds should be authorized and appropriated to make this possible. Once this separation is in place, INS must concentrate on developing a culture of customer service through improved management and training.
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(3) The Wall Between Service and Enforcement Should be Created from the Local Offices Through Headquarters
The enforcement and service functions of INS currently compete for the attention of the INS' top management as well as that of district and local directors. The separation of service from enforcement should continue through to the Commissioner and the Deputy Commissioner. Each area should have staff at equal rank and report directly to the Commissioner.
(4) The Wall Between Service and Enforcement Needs to have Windows
While the two conflicting functions of INS should be separated, INS Examiners and INS Enforcement personnel need to work together and share data in order to investigate and prosecute immigration fraud, particularly when perpetrated by alien smugglers and document vendors. INS should look to the police/prosecutor relationship as a model of how two separate agencies could work together in this way, and should study how other federal agencies use separate enforcement agencies to investigate and prosecute fraud.
(5) The INS Should be Accountable
Many blame INS' inadequate performance, in part, on its lack of visibility within the Department of Justice. There is, however, some benefit to having INS held accountable to a higher source, such as the Attorney General.
The complexity and the breadth of the work undertaken by this institution calls for a much higher level status while still being accountable for its activities. Whether this be a cabinet level agency or whether the Commissioner reports directly to the Attorney General and has equal rank as that of the Director of the FBI, the INS must have a higher level status within the Administration. To better facilitate communication and to enhance accountability we recommend that an office be created in the Department of Justice specifically charged with immigration matters. The office of the Associate Attorney General for Immigration should include senior personnel , who should also supervise the Executive Office for Immigration Review (EOIR), which oversees all immigration judges and the Board of Immigration Appeals (BIA) . The Associate Attorney General will work with the Commissioner, Deputy Commissioner and the two Associate Commissioners for Enforcement and for Services.
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(6) If Service and Enforcement are to be Separated, it will be Essential to Distinguish Carefully Enforcement Functions from Service Functions
Since the passage of the Illegal Immigration and Immigrant Responsibility Reform Act of 1996 (IIRIRA), the lines between enforcement and service have been blurred. For example, immigration inspectors, who carry guns and traditionally have acted as airport border guards, have been empowered by IIRIRA to also act as Prosecutor, Judge, and Jury. Inspectors may now summarily detain and exclude individuals from the United States without possibility of appeal. (Prior to IIRIRA, the Executive Office for Immigration Review (EOIR), which is a division of the DOJ separate from INS, had exclusive authority to exclude aliens through EOIR's immigration judges and Board of Immigration Appeals (BIA)).
Enforcement personnel should be directed to identify individuals to be removed from the United States, but only an adjudicator from the ''service side'' should be permitted to make the decision concerning the removal. This would not require a substantive change to IIRIRA but, rather, a technical amendment so that all primary inspections be done by Enforcement (inspectors), but that the ''secondary inspection'' and final determination concerning exclusion and removal be made by the Service division (examiners).
(7) Funding of Service and Enforcement Should be Separated. ''Fees for Service'' Must Truly Become ''Fees for Service''
At this time, INS Examinations functions receive no appropriations from taxpayer funds and are supposed to be self-financing through ''fees for service.'' Indeed, much of the fee money is, in fact, diverted by Congress to pay for asylum adjudications (there is no fee to apply for asylum), denaturalization proceedings, and removal proceedings. Therefore, applicants are paying a fee for service but aren't getting the service for which they paid. Rather, they are subsidizing non-fee applications, enforcement activities, and facing huge backlogs. As Service is separated from Enforcement, Congress should commit to ceasing its diversion of examinations fees to the enforcement sector, and should appropriate money to at least subsidize those service functions for which no fee is charged (i.e. asylum), as well as those functions which benefit both the enforcement and service sectors (i.e. automation and information management).
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While taxpayer funds should be appropriated to pay for asylum and refugee adjudications, INS should retain the discretion to subsidize these programs with fee money until Congress provides an adequate level of appropriations.
8) There must be Greater Inter-agency Coordination and White House Involvement in Immigration Policy and Priority Setting.
To facilitate higher level communication and coordination, we propose that the White House co-convene with the INS Commissioner a council that includes senior representatives of all government agencies involved in immigration to facilitate work of all such departments and ensure a coherent national immigration policy and program.
Mr. SMITH. Thank you, Ms. Aviv. Your testimony was very complete and contained a great deal of impotant information.
As I understand your statements, Ms. Martin, Mr. Papademetriou and Mr. Gallo, you all three do not feel that the INS has gone far enough in their proposed plan. You heard Commissioner Meissner say a while ago that if you divide the agency, you'd be dividing the problem, not solving the problem. How specifically, or why specifically do you disagree with the INS plan? Ms. Martin we'll start with you.
Ms. MARTIN. We disagree with the INS plan on two bases. One is that it does not sufficiently elevate the functions that are involved in either the enforcement or the service side of it, by being still layered three levels down within an agency which has excelled, they'll be well buried at times within the Justice Department.
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We feel that, at a minimum, there should be an elevation of those functions to a level which enforcement is comparable to the FBI and other major enforcement agencies, and similarly for services where everybody's located.
The second problem is that this doesn't solve the problem of fragmentation of responsibility, plus the other government agencies that will, perhaps, be able to reduce the processing time for a skilled-based immigration petition and labor certification from 30 months to 24 months. But 24 months is still unacceptable and we still have that kind of diffusion of responsibility that prevents a really efficient system from being in place.
Mr. SMITH. Thank you. Mr. Papademetriou.
Mr. PAPADEMETRIOU. Mr. Chairman, I'm not quite sure that we are opposed to the administration's plan, rather what we would do, we would wrap a different sort of set of requirements around that plan. And the two additions to the plan that we will make would be the one of elevation and consolidation. Let me talk for 1 second about consolidation.
It seems to me that in exercising your own responsibilities, at some point, you must be frustrated by the fact that there are always so many different agencies in trying simply, to develop a single coherent policy. And I suspect that your frustration probably gets elevated beyond that when you have to deal with whether, indeed, this particular policy or law has been executed properly.
It seems to me that if you're thinking about doing things right for a change, you have to consider consolidation of the entire function. It's big enough. It's important enough. It's cuts across a vast array of policy domains, from employment policy, human resources development policy, foreign, economic, and political policy, health policy, Social Security policy, that you would really, it seems to me, be considering something that comprehensive understands and develops and implements the function.
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On the second issue, we believe that by consolidating, you will have rather significant savings. Think of the duplication that takes place today on a single issue like a data system. Our system would have a single data system that would basically handle someone's application for even temporary entry to the United States, all the way to the issuance of passportsa single data system. Efficiency is going to be extremely significant.
In addition to that, and I'm sure that you sometimes have been frustrated by that or you have sometimes taken advantage of it, the INS spends an extraordinary amount of time, much more than you will ever be publicly willing to admit, managing the parent agency. We think, in this case in our Justice Department, we think that this is wasted energy. All of the energy of an independent agency with proper standing should be focused on doing the business that Congress assigns to it and the American people expect it.
Mr. SMITH. Thank you. Mr. Gallo.
Mr. GALLO. Yes, Mr. Chairman. I guess in a nutshell, I'll try to be brief here. We feel the enforcement division should be structured after every other Federal law enforcement agency. And the only one that is structured currently like INS currently is, is the IRS. And according to the hearings and the Senators, recently, it isn't like they're all a happier act together either.
But if this division can be structured along the lines of every other single Federal law enforcement agency, that Congress has set forth in creating, then that would be proper.
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Mr. SMITH. Okay. Thank you, Mr. Gallo.
Before I go to Mr. Brown, Ms. Martin, as you know, I think the Commission has done a lot of good work. Did you ever give copies of your report to every Member of Congress? I remember asking you that question before and I probably should ask you privately, but.
Ms. MARTIN. Yes. Copies of the report summary and the full report went out to every member.
Mr. SMITH. You've done on all your reports, not just the most recent one?
Ms. MARTIN. Yes, all four reports. We do have some new appendices, six volumes of appendices that each run about 600 pages of all the back-up material to the Commission recommendations. They've just been given to the committees.
Mr. SMITH. Mr. Brown, a quick question for you. You said that the INS has problems, particularly in the areas of lack of responsibility and lack of accountability. Why has the INS not made more progress in solving those problems?
Mr. BROWN. We believe the problem is not a structural problem. It's more on internal processes and holding managers responsible and accountable as to what they are doing.
Page 214 PREV PAGE TOP OF DOC Mr. SMITH. That's an important solution that I was trying to get to in my own mind, whether the problem with the INS is structural or managerial. You lean on the managerial side?
Mr. BROWN. We definitely lean on the managerial side.
Mr. SMITH. And do you feel that the law enforcement component of the INS is too enforcement-minded?
Mr. BROWN. Absolutely not. I believe they understand their function rather well and we see many instances of Border Patrol carrying babies across a river, helping people. They administer the law with compassion and I think it's the result of the combination of keeping the benefits and enforcement together.
Mr. SMITH. Thank you, Mr. Brown. Mr. Watt is recognized.
Mr. WATT. Let me just follow-up on a question with Mr. Brown because I was struck by your comments that this is a management issue, not a structure issue. With you being one of the managers and other managers being in the audience, that suggests to me that if it is a management problem, there must be something unique about the current managers if they are not getting the job done.
And it just strikes me that there are, even represented here today, different gradations of management. You would have the Baltimore District office represented, which is considered one of the better district offices. We have yours, which is in the middle. Then, we have the Atlanta District office, which is generally regarded as one of the worst.
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So, what is it that makes one good and one bad if this is a management problem as opposed to a structural problem?
Mr. BROWN. First of all, individuals make a difference, big difference. But funding
Mr. WATT. Your guy behind you is about to hit you. [Laughter.]
Mr. WATT. Your Atlanta guy is about to hit you, so be careful. Be careful of what you say. He's sitting behind you. I can watch him. I'm watching your back. Go ahead.
Mr. BROWN. Individuals certainly make a difference, but staffing, funding, the flexibility to manage at a local level to fix problems. Some of that has been taken away from the local manager, and I could tell you many examples in my own district.
Mr. WATT. But funding wouldn't be taken away from one local manager any more than it would be taken away from the other local manager?
Mr. BROWN. Well, each geographic area certainly has different activities that go on. In some areas we've had a significant increase in both illegal and legal migration, and resources may not have been distributed as commensurate with those increases. And the best manager in the world cannot fix a problem if he doesn't have the resources to do it. But certainly, there are managers that are better than others. All managers need to be held accountable for their actions.
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Mr. WATT. All right. I think I'll pass, because I know we all have to go.
Mr. SMITH. Thank you, Mr. Watt. Mr. Pease is recognized.
Mr. PEASE. Thank you, Mr. Chairman. I hope we're going to study this more, because there are so many more things I want to ask and get to all of them. But I do want to follow-up on the issue of management.
What sort of opportunities for flexibility in management are provided to our managers? What sorts of expectations of accountability are made upon our managers? And what constraints are they placed under because of unionization of employees within this agency?
Mr. BROWN. All of those are big issues, Congressman. To touch on them all in a short period of time would be very difficult, but I could just give you one quick example and it would just be from the Cleveland District, of which I've been director for several years.
In the past, I had been able to use inspectors in various other activities other than inspections, detention processes, adjudicatory process. A lot of that flexibility has gone away. And when I used the inspectors was in the middle of the winter when Lake Erie was frozen over and their job was to do seaport duties. A lot of that flexibility has gone.
Mr. PEASE. But why is that?
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Mr. BROWN. We have funding restraints where people can be used based only on the funding that is appropriated. We have program restraints coming from our headquarters that sets limits, and we have union restraints.
Mr. PEASE. I'd like further response at some point if you can, if you have other ideas on this that you'd like to share with us. I'd appreciate it.
Mr. BROWN. I'd be happy to meet with you or your staff.
Mr. PEASE. Great. Then one other thing, quickly. How frequently are records that are prepared in the enforcement side of the operation needed in the service side of the operation and vice-versa?
Mr. BROWN. On a regular, daily, hourly, basisboth sides.
Mr. PEASE. If you could quantify on a percentage basis, are 75 percent of the records used on the service side needed, at some point, on the enforcement side, or is it a small percentage, just large numbers because of the volume of work you're doing?
Mr. BROWN. It'sout of the benefits cases, these are the ones that are being reviewed by examiners that are referred to investigations, probably 3 or 4 percent.
Mr. PEASE. There is such a tremendous volume that the numbers are large?
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Mr. BROWN. The number is very large.
Mr. PEASE. And Mr. Gallo, would that be your assessment as well? You deal with this area regularly?
Mr. GALLO. Well, there's always flack between agencies, between components of agencies, but even accessing computer records from other agencies, or phone calls between law enforcement agents who I subpoena.
Mr. PEASE. Well, the reason that I asked this and we don't need to get into it now, is that it seems to me that the strongest argument that the Commissioner makes for keeping everything together is that they share computer records so intimately, regularly among everybody.
But if you're telling me that only 3 or 4 percent of the files on the enforcement side are used regularly on the service side, then I'm not so sure I buy that argument.
Mr. BROWN. File, yes. The computer records the enforcement side uses on all their cases. We're talking about referring benefit cases over for investigation. One's that entail fraud or suspected fraud, those who entail suspected criminal activity, terrorism. Those are referred over and that's the whole paper record that goes with it. But the computer records are used constantly by both.
Mr. PEASE. All right. If anybody that wants to respond further, I'm sure
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Mr. GALLO. In reference to investigations, Congressman, investigators will access 100 percent of their investigations, will use the immigration and also use the PD records, the FINCEN records, the currency transaction records, the CTR's. Every investigator accesses all of those computer records.
Mr. PEASE. Both within and
Mr. GALLO. Within INS, oh, yes.
Mr. PEASE. And Ms. Martin.
Ms. MARTIN. If I could add. Our observation is that there is a great exchange in records, but certainly no more so than let's say the Department of Motor Vehicles accessing records to determine if a driver's license should be pulled or if there are violations that would prevent a driver's license from being issued.
Similarly, the police departments gain access to the DMV records in order to be able to determine if somebody's actually legally licensed. So, it's not necessarily an argument for keeping the two under the same umbrella.
Mr. PEASE. Thank you. Thank you, Mr. Chairman.
Mr. SMITH. Thank you, Mr. Pease. Mr. Brown, I just remembered the question I wanted to direct to you and it was follow-up to what I asked Commissioner Meissner a few minutes ago. And that is do you feel that your views represent a majority of the district directors?
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Mr. BROWN. We've spoken with all of the district directors on two separate occasions. Once in Albuquerque we had a meeting of all the members of the association of all district directors and members. It was not the deputies nor the OIC's, and one district director who was not a member. Out of that group, there was none that favored splitting the agency or bifurcating the agency at the local level.
Mr. SMITH. When you say the problems are managerial, does that extend to the top, as well as the middle management? Why did you grimace?
Mr. BROWN. Certainly, we are all human beings, and certainly, we all can make some mistakes and have difference of opinions.
Mr. SMITH. I'm not going to push beyond that.
Mr. BROWN. Thank you.
Mr. SMITH. Thank you, Mr. Brown. Are there any other questions by any of the members? If not, then we thank all the panelists for being here and appreciate your input. Clearly, this was a very informative meeting for all of us.
[Whereupon, at 12:14 p.m., the subcommittee adjourned subject to the call of the Chair.]
(Footnote 1 return)
The actual implementation of the pilot demonstrates some of the accountability problems highlighted by the Commission. The pilot was designed originally to test the supervised release of aliens who were likely to prevail in their efforts to obtain legal status, with detention used at the point in the proceedings when they no longer had reason to believe they would succeedfor example, asylum applicants who met the credible fear standard. However, the New York district office generally has refused to grant AAP staff access to this asylum caseload, despite headquarters approval of this strategy. Nor has the district office taken into custody individuals whom the AAP identifies as likely to abscond because they do not comply with the program's requirements even when AAP provides accurate information on their whereabouts.
(Footnote 2 return)
See U.S. Commission on Immigration Reform, Becoming an American: Immigration and Immigrant Policy. 1997:14849.
(Footnote 3 return)
Id at 148.
(Footnote 4 return)
Like the Commission on Immigration Reform, we would transfer employer sanctions enforcement to the Department of Labor. Under the current system, both agencies check I9s, although DOL conducts many more such inspections as part of its general auditing of employers for compliance with labor laws. Enforcement, however, resides with the INS: DOL refers suspected violation to the Service for further action. The INS does not view such work as a core task; its investigators would rather work significant criminal cases than fine employers. And the Labor Department is generally unsatisfied with the response it receives from the INS in referred cases (indeed, in most cases it gets no response from INS).
(Footnote 5 return)
Of course, considering the fact that the departments whose functions would now be incorporated within this new agency will continue be interested in the setting of migration and citizenship policy in some way, they should continue to be prepared to offer their expertise and perspectives by developing or retaining a policy capacity located in the office of each department's top management.
(Footnote 6 return)
The EPA was created through a Presidential reorganization plan under the reorganization authority in chapter 9 of title 5 in the U.S. Code. The DEA was also created through a Presidential reorganization plan under the same authority but in 1973. Creation of the DEA consolidated all anti-drug functions from the numerous agencies within the Departments of Justice and Treasury. See also the discussion in this study's conclusion.
(Footnote 7 return)
This option has been recommended by Milton Morris in Immigration: The Beleaguered Bureaucracy (Washington, DC: Brookings Institution, 1985:14142) and former INS Commissioner Gene McNary (''No Authority, No Accountability: Don't Abolish the INS. Make it an Independent Agency,'' 74 Interpreter Releases 128189 [August 25, 1991].)
(Footnote 8 return)
Richard Nixon, Public Papers of the President, July 9, 1970, p. 582.