SPEAKERS CONTENTS INSERTS Tables
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DESIGNATIONS OF TEMPORARY PROTECTED
STATUS AND FRAUD IN PRIOR AMNESTY PROGRAMS
IMMIGRATION AND CLAIMS
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTH CONGRESS
MARCH 4, 1999
Serial No. 71
Page 2 PREV PAGE TOP OF DOCPrinted for the use of the Committee on the Judiciary
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 S. SMITH, Texas
ELTON GALLEGLY, California
CHARLES T. CANADY, Florida
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
LINDSEY O. GRAHAM, South Carolina
Page 3 PREV PAGE TOP OF DOCMARY BONO, California
SPENCER BACHUS, Alabama
JOHN CONYERS, Jr., Michigan
BARNEY FRANK, Massachusetts
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
TAMMY BALDWIN, Wisconsin
ANTHONY D. WEINER, New York
THOMAS E. MOONEY, SR., General Counsel-Chief of Staff
JULIAN EPSTEIN, Minority Chief Counsel and Staff Director
Subcommittee on Immigration and Claims
LAMAR S. SMITH, Texas, Chairman
Page 4 PREV PAGE TOP OF DOCBILL McCOLLUM, Florida
ELTON GALLEGLY, California
EDWARD A. PEASE, Indiana
CHRIS CANNON, Utah
MARY BONO, California
CHARLES T. CANADY, Florida
BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas
HOWARD L. BERMAN, California
ZOE LOFGREN, California
BARNEY FRANK, Massachusetts
MARTIN T. MEEHAN, Massachusetts
GEORGE FISHMAN, Chief Counsel
JIM WILON, Counsel
LAURA BAXTER, Counsel
CINDY BLACKSTON, Professional Staff
LEON BUCK, Minority Counsel
C O N T E N T S
March 4, 1999
Page 5 PREV PAGE TOP OF DOCOPENING STATEMENT
Smith, Hon. Lamar, a Representative in Congress from the State of Texas, and chairman, Subcommittee on Immigration and Claims
Heppel, Monica, Professor, Mount Vernon College, and Research Director, Inter-American Institute on Migration and Labor
Krikorian, Mark, Executive Director, Center for Immigration Studies
Massomino, Elisa, Director, Lawyers Committee for Human Rights
Shaw, John F., Former Assistant Commissioner for Investigations, Immigration and Naturalization Service
Stein, Daniel, Executive Director, the Federation for American Immigration Reform
Virtue, Paul, General Counsel, Immigration and Naturalization Service
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Jackson Lee, Hon. Sheila, a Representative in Congress from the State of Texas: Prepared statement
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Lofgren, Hon. Zoe, a Representative in Congress from the State of California: Prepared statement
Letter to Hon. Lamar Smith dated March 3, 1999
Heppel, Monica, Professor, Mount Vernon College, and Research Director, Inter-American Institute on Migration and Labor: Prepared statement
Krikorian, Mark, Executive Director, Center for Immigration Studies: Prepared statement
Massomino, Elisa, Director, Lawyers Committee for Human Rights: Prepared statement
Shaw, John F., Former Assistant Commissioner for Investigations, Immigration and Naturalization Service: Prepared statement
Smith, Hon. Lamar S., a Representative in Congress from the State of Texas: Prepared statement
Stein, Daniel, Executive Director, the Federation for American Immigration Reform: Prepared statement
Virtue, Paul, General Counsel, Immigration and Naturalization Service: Prepared statement
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Material submitted for the record
DESIGNATIONS OF TEMPORARY PROTECTED STATUS AND FRAUD IN PRIOR AMNESTY PROGRAMS
THURSDAY, MARCH 4, 1999
House of Representatives,
Subcommittee on Immigration
Committee on the Judiciary,
The subcommittee met, pursuant to call, at 10:05 a.m., in room 2237, Rayburn House Office Building, Hon. Lamar Smith [chairman of the subcommittee] presiding.
Present: Representatives Lamar Smith, Elton Gallegly, Edward A. Pease, Chris Cannon, Mary Bono, Charles T. Canady, Bob Goodlatte, Sheila Jackson Lee, Howard L. Berman, Barney Frank and Martin T. Meehan.
Staff present: George Fisheman, Chief Counsel; Laura Baxter, Counsel; Cindy Blackston, Clerk; and Judy Knott, Staff Assistant.
OPENING STATEMENT OF CHAIRMAN SMITH
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Mr. SMITH. The Subcommittee on Immigration and Claims will come to order.
I would like to make a couple of initial announcements before we get to the opening statements and our first panel.
The first is no surprise to any of you all who make a habit of attending these hearings. We are in a position where this morning, for example, we are meeting at the exact time that three other subcommittees are meeting, two of which are under the Judiciary Committee and another subcommittee that several members are members of. So there are a lot of conflicts and we are going to try in the future, perhaps, to avoid that by alternating our times, particularly with the Intellectual Property Subcommittee which right now has a majority of our members on it but they are considering a bill and I understand their need to be around the corner.
To let you know ahead of time, we have arranged, we hope, an en masse transfusion of members from the Intellectual Property Committee at about 11 o'clock this morning and we will take about 15 minutes to consider some private bills and some other matters as well. So we hope to get to our seven member minimum to consider such bills at about 11 a.m.
We also have a vote at 11:30 a.m. and we have a lot to try to get done this morning. I just wanted to let you all know of the possible interruptions before we get to that time.
I have an opening statement and I know the Ranking Member has an opening statement and we will proceed.
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Our hearing today is to consider the impact of past designations of temporary protected status. We will also examine the amount of fraud in prior amnesty programs. The question is not whether TPS should be grantedin many instances it should be. The question is whether it is really temporary and to what extent TPS invites fraud.
These issues are more than historical interests. The administration recently granted TPS to Nicaraguans and Hondurans. Has the INS made serious efforts to deport those aliens whose TPS has expired? The administration has to administer the amnesty for Nicaraguans and Cubans granted in 1997. Will fraud flourish, as it has in the past?
The administration is now advocating an additional amnesty for more than half a million illegal aliens. If the administration persists, what will be the consequences? Leaving aside the regrettable precedent, how much fraud will result? Will TPS, in fact, be temporary or permanent?
TPS was added to the Immigration and Nationality Act in 1990 after lengthy debate in Congress. Since then, the Attorney General has designated 14 nations for TPS. However, the public has little information about how many aliens have registered for TPS and what happens to them when the TPS designation ends. Congress has never evaluated how well the statute is working.
The law requires the Attorney General to submit annual reports to Congress on the foreign states designated for TPS and the reasons for designation as well as the number of nationals granted TPS. We learned only yesterday that the Attorney General delivered only one report: in August 1992. As of August 1, 1992, almost 200,000 aliens have been granted TPS.
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Salvadorans had TPS from January 1, 1991 until June 30, 1992 and ''Deferred Enforcement Departure'' through the end of 1994. Now, the Salvadorans who received TPS are demanding amnesty, which the administration supports. As a backup plan, the administration has decided to presume that all of them would experience ''extreme hardship'' if deported. This sets a terrible precedent because other aliens granted TPS will, of course, demand similar treatment.
Fraud in prior amnesty programs is also an important issue for the subcommittee. Fraud is the granting of amnesty to individuals who do not qualify. There was fraud in both the general amnesty program and in the Special Agricultural Workers or ''SAW'' amnesty program contained in the Immigration Reform and Control Act of 1986.
According to a 1996 article in the Dallas Morning News, the SAW program in particular was ''so riddled with fraud that even applicants who didn't know that strawberries don't grow on trees qualified.'' An expert on the issue proclaimed that ''It was the biggest immigration fraud ever in the United States.'' As a result, more than three times the number of aliens originally estimated to be eligible were, in fact, granted amnesty.
In May 1998, the INS published its interim regulation on the amnesty provisions for Cubans and Nicaraguans in the Nicaraguan Adjustment and Central American Relief Act of 1997.
The regulation states that the INS will not conduct a personal interview of all applicants and that unofficial documents will be accepted for proof of nationality and continuous physical presence. On June 9, 1998, I expressed my concern to the INS Commissioner that this is an open invitation for fraud and requested a written response by the end of that month with INS' plan to combat fraud in this program.
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More than 8 months later, I received a response to my letter on February 24, 1999, after the INS had received notice of the issues to be covered in this hearing. The INS response admits that the ''potential for fraud does exist.'' The INS should reassess its position and interview all applicants.
The INS has a great deal of work to do. We recognize that. However, a large workload is not an excuse to rubber stamp all applications and encourage fraud. The America people deserve better from the INS.
That concludes my opening statement.
[The prepared statement of Mr. Smith follows:]
PREPARED STATEMENT OF HON. LAMAR S. SMITH, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS
Our hearing today is to consider the impact of past designations of Temporary Protected Status. We will also examine the amount of fraud in prior amnesty programs.
The question is not whether TPS should be granted; in many instances it should be. The question is whether it is really temporary and to what extent TPS invites fraud.
These issues are of more than historical interest. The Administration recently granted TPS to Nicaraguans and Hondurans. Has the INS made serious efforts to deport those aliens whose TPS has expired? The Administration has to administer the amnesty for Nicaraguans and Cubans granted in 1997. Will fraud flourish, as it has in the past?
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The Administration is now advocating an additional amnesty for more than half a million illegal aliens. If the Administration persists, what will be the consequences? Leaving aside the regrettable precedent, how much fraud will result? Will TPS be temporary or permanent?
TPS was added, to the Immigration and Nationality Act in 1990, after lengthy debate in Congress. Since then, the Attorney General has designated fourteen nations for TPS. However, the public has little information about how many aliens have registered for TPS and what happens to them when the TPS designation ends. Congress has never evaluated how well the statute is working.
The law requires the Attorney General to submit annual reports to Congress on the foreign states designated for TPS and the reasons for designation, as well as the number of nationals granted TPS. We learned only yesterday that the Attorney General delivered one report: in August 1992. As of August 1, 1992, almost 200,000 aliens had been granted TPS.
Salvadorans had TPS from January 1, 1991, until June 30, 1992, and ''Deferred Enforced Departure'' through the end of 1994. Now, the Salvadorans who received TPS are demanding amnesty, which the Administration supports. As a backup plan, the Administration has decided to presume that all of them would experience ''extreme hardship'' if deported. This sets a terrible precedent because other aliens granted TPS will of course demand similar treatment.
Fraud in prior amnesty programs is also an important issue for the Subcommittee. Fraud is the granting of amnesty to individuals who do not qualify. There was fraud in both the general amnesty program and in the Special Agricultural Workers or ''SAW'' amnesty program contained in the Immigration Reform and Control Act of 1986 (IRCA).
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According to a 1996 article in the Dallas Morning News, the SAW program in particular was ''so riddled with fraud that even applicants who didn't know that strawberries don't grow on trees qualified.'' An expert on the issue proclaimed that ''It was the biggest immigration fraud ever in the United States.'' As a result, more than three times the number of aliens originally estimated to be eligible were granted amnesty.
In May 1998, the INS published its interim regulation on the amnesty provisions for Cubans and Nicaraguans in the Nicaraguan Adjustment and Central American Relief Act of 1997.
The regulation states that the INS will not conduct a personal interview of all applicants and that unofficial documents will be accepted for proof of nationality and continuous physical presence. On June 9, 1998, 1 expressed my concern to the INS Commissioner that this is an open invitation for fraud and requested a written response by the end of that month with INS' plan to combat fraud in this program.
More than eight months later, I received a response to my letter on February 24, 1999, after the INS had received notice of the issues to be covered at this hearing. The INS response admits that the ''potential for fraud does exist.'' The INS should reassess its position and interview all applicants.
The INS has a great deal of work to do. However, a large workload is not an excuse to rubber stamp all applications and encourage fraud. The American people deserve better from the INS.
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The gentlewoman from Texas, Ms. Jackson-Lee, is recognized for her opening statement.
Mr. SMITH. It's my understanding the INS has provided the subcommittee with several reports and without objection, those reports will be made a part of the record.
[The referenced INS reports are on file with the House Judiciary's Committee's Subcommittee on Immigration and Claims.]
Mr. SMITH. I now recognize the gentlewoman from Texas, Ms. Jackson Lee, for her opening statement.
Ms. JACKSON LEE. Thank you very much, Mr. Chairman. Good morning.
I do appreciate the discussions we're having regarding making sure that the time of this hearing is inclusive. I want to note a letter from Congresswoman Zoe Lofgren on the scheduling of these hearings. With the chairman and myself, we look forward to accommodating all of our members because this is an important committee.
[The referenced letter from Ms. Lofgren follows:]
Hon. LAMAR SMITH, Chairman,
Subcommittee on Immigration and Claims,
Committee on the Judiciary,
House of Representatives, Washington, DC.
DEAR CHAIRMAN SMITH: I am writing to express my concern again over the scheduling conflicts that Members of the Immigration and Claims Subcommittee and the Intellectual Property Subcommittee are experiencing. Last week, hearings were scheduled at approximately the same time for both Committees, making it impossible for Members to attend and focus on both hearings. This is the case again this week.
Given that the majority of the Immigration Subcommittee, five Republican and two Democratic Members, also sit on the Intellectual Property Subcommittee, I would hope that a schedule that avoids a conflict for a majority of our subcommittee members could be crafted. I realize that this may not always be possible, but I would hope that is the rule, rather than the exception.
I appreciate your consideration of my request, and look forward to attending future hearings in their entirety.
|Zoe Lofgren, Member of Congress.|
cc: Chairman Howard Coble, Intellectual Property Subcommittee.
Page 16 PREV PAGE TOP OF DOC Ms. JACKSON LEE. Mr. Chairman, the subject of temporary status is an important one. This legal designation has allowed several groups temporary protection from deportation. The Immigration Act of 1990 codified and amplified these procedures by establishing a program to give temporary status to certain aliens in the United States who faced a threat to life or liberty if they had to return to their home country.
Temporary protected status, TPS, is the statutory embodiment of safe haven for those aliens who may not meet the legal definition of refugee but are nonetheless fleeing potentially dangerous situations. TPS is blanket relief that may be granted under the following conditions: there is ongoing armed conflict posing serious threat to personal safety; a foreign state requests TPS because it temporarily cannot handle the return of nationals due to environmental disaster; or, there are extraordinary and temporary conditions in a foreign state that prevent aliens from returning, provided that granting TPS is consistent with U.S. national interests.
The Attorney General can issue TPS for periods of 6 to 18 months and can extend these periods if conditions do not change in the designated country. Aliens from Montserrat were the first granted TPS on the basis of a natural disaster, in this case a volcanic eruption.
The estimated number of aliens currently protected range from 350 Somalis to 90,000 Hondurans. The Liberians whose TPS is scheduled to end September 28, 1999 have had protection for the longest period of those who currently have TPSsince March 1991. Other groups granted protected status are: 400 from Bosnia-Hercegovina; 500 from Burundi; 5,000 from Kosovo; 4,000 from Sierra Leone; 350 from Somalia and 4,000 from the Sudan. As you can see, these are individuals from war torn nations.
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However, a major feature of the 1990 act was its provision conferring immediate temporary protective status on many undocumented Salvadorans in the United States. This mandate eased the burden of administrators who had been overwhelmed by thousands of asylum claims presented by Salvadoran nationals and of courts that sought to cope with humanitarian concerns often presented by litigation challenging the rejection of such claims.
The 1990 act provided that the temporary protected status for Salvadorans would begin immediately and continue for a period of 18 months beginning January 1, 1991. The massive influx of Central Americans should also be addressed since many have applied for TPS status, 60,000 alone from Nicaragua.
The Attorney General granted TPS status to Hondurans and Nicaraguans and Stays of Deportation to Guatemalans and Salvadorans. The administration maintained that hurricane damage was not extensive enough to justify TPS. I think we should be careful to realize that any problems that come with the TPS program are not solely due to the influx of Central Americans to this country and there are, in fact, several other groups involved in this program.
The criticisms of TPS is that aliens who register for it simply stay too long. However, there are many factors for this problem. Several organizations have suggested that an individual who qualifies for TPS cannot make an informed decision about whether to register for TPS without knowing the real prospect of deportation. Currently, there are no clearcut procedures for the termination of TPS status with other nationalities. One reason for this is that the agency lacks the resources to deport those for whom TPS has expired.
Page 18 PREV PAGE TOP OF DOC According to the American Arab Antidiscrimination Committee, the INS has stated that deportation would vary district by district presumably depending on whether sufficient time and resources existed to deport people.
We clearly have an internal problem that needs to be fixed. There needs to be put in place an alternative method for encouraging TPS recipients to return home after TPS expires. It is possible that repatriation assistance can be offered. War, civil conflict and environmental disaster can fundamentally alter a locality, region or entire country. A returnee may no longer have a job, home or even family. In many countries, conflicts persist even after the war is over, contributing to the difficulty of readjustment.
However, several international organizations that have provided critical support for the voluntary repatriation of refugees could potentially assist in some type of voluntary return for TPS beneficiaries. For example, the United Nations High Commissioner for Refugees has coordinated the return of Cambodians, Afghans and others. The U.S. Agency for International Development could support necessary small scale infrastructure and development projects and could identify local, non-governmental organizations capable of delivering services at the grassroots level.
If, in fact, these other agencies cannot meet this burden, then the INS must design a comprehensive plan to keep better track of what groups remain in the United States after TPS expires. In a paper written by Bill Froelich and Barbara Coleman of the U.S. Committee for Refugees on TPS, they state that without some form of return assistance, a TPS beneficiary who wanted to return home after the expiration of TPS but was uncertain about job and housing prospects might decide against returning. We in Congress can work on improving the TPS Program.
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Finally, Mr. Chairman, turning to the amnesty programs enacted by the Congress, the Immigration Reform and Control Act of 1986 created two amnesty programs. It is a fact that the general amnesty program was for aliens who had been in the U.S. illegally since January 1, 1982. They was also a special agricultural worker or SAW program for aliens who had worked at least 90 days in certain kinds of farm work in the period ending May 1, 1986.
Three years after the enactment of this program, the INS identified 398,000 cases of possible fraud in the program while admitting that it lacked both the manpower and the money to prosecute individual applicants. These allegations of widespread fraud in the SAW Program were suggested but never proven and were frequently based on assertions that turned out to be untrue.
We cannot tolerate any form of fraud in such programs and I believe that if fraud exists, it should be stamped out, but I do not think, Mr. Chairman, that we should say just because there are abuses in one program, that all of the amnesty programs should be grouped together unfairly.
I would hope as we listen this morning, that we will find more in-common solutions than in-common problems. So I would ask, Mr. Chairman, that we both keep an open mind on these issues.
Mr. Chairman, if you would indulge me for two questions just for the record. Let me indicate that we experienced the escape of a detainee in Sugarland, Texas last weekend. I know that the General Counsel of the INS is present and I will say that the District Director in Houston, Mr. Kravenau, has been very attentive to this issue, but I am officially asking for a full report from INS in Washington on that detainee's escape.
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I particularly want to have a full report on the contract between the Corrections Corporation of America, the details of that contract, the security measures implemented, and as well, would like to hear from the Attorney General on the U.S. Marshals involvement in retaining or looking to retain long-term detainees in this country. I'd appreciate responses from the INS on this issue.
Thank you, Mr. Chairman.
[The prepared statement of Ms. Jackson Lee follows:]
PREPARED STATEMENT OF HON. SHEILA JACKSON LEE, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS
I. TEMPORARY PROTECTED STATUS
Thank-you Mr. Chairman. The subject of temporary protected status is an important one. This legal designation has allowed several groups temporary protection from deportation. The Immigration Act of 1990 codified and amplified these procedures by establishing a program to give temporary status to certain aliens in the United states who faced a threat to life or liberty if they had to return to their home country. Temporary Protected Status is the statutory embodiment of safe haven for those aliens who may not meet the legal definition of refugee but are nonetheless fleeing potentially dangerous situations. TPS is blanket relief that may be granted under the following conditions: there is ongoing armed conflict posing serious threat to personal safety; a foreign state requests TPS because it temporarily cannot handle the return of nationals due to environmental disaster; or, there are extraordinary and temporary conditions in a foreign state that prevent aliens from returning, provided that granting TPS is consistent with U.S. national interests.
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The Attorney General, can issue TPS for periods of 6 to 18 months and can extend these periods if conditions do not change in the designated country. Aliens from Montserrat were the first granted TPS on the basis of a natural disaster, in this case a volcanic eruption.
The estimated number of aliens currently protected range is from 350 Somalians to 90,000 Hondurans. The Liberians, whose TPS is scheduled to end September 28, 1999, have had protections for the longest period of those who currently have TPSsince march of 1991. Other groups granted protected status are 400 from Bosnia-Heregovinia, 500 from Burundi, 5,000 from Kosovo, 4,000 from Sierra Leone, 350 from Somalia, and 4,000 from the Sudan. However, a major feature of the 1990 Act was its provision conferring immediate temporary protected status on many undocumented Salvadorans in the United States. This mandate eased the burden of administrators who had been overwhelmed by thousands of asylum claims presented by Salvadorian nationals and of courts that had sought to cope with humanitarian concerns often presented by litigation challenging the rejection of such claims. The 1990 Act provided that the temporary protected status for Salvadorians would begin immediately and continue for a period of 18 months beginning January 1, 1991.
The massive influx of Central Americans should also be addressed since many have applied for TPS status. 60,000 alone from Nicaragua. The Attorney General granted TPS status to Hondurans and Nicaraguans and Stays of Deportation to Guatemalans and Salvadorans. The Administration maintained that hurricane damage was not extensive enough to justify TPS. I think we should be careful to realize that any problems that come with the TPS program is not solely due to the influx of Central Americans to this country; and that there are in fact several other groups involved in this program.
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The criticism of TPS is that aliens who register for it simply stay too long. However, there are many factors for this problem. Several organizations have suggested that an individual who qualifies for TPS cannot make an informed decision about whether to register for TPS without knowing the real prospect of deportation. Currently, there are no clear cut procedures for the termination of TPS status with other nationalities. One reason for this is that the agency lacks the resources to deport those for whom TPS has expired. According to the American-Arab Anti-Discrimination committee, the INS has stated that deportation would vary district by district, presumably depending on whether sufficient time and resources exist to deport people.
There needs to be put in place an alternative method for encouraging TPS recipients to return home after TPS expires. It is possible that repatriation assistance can be offered. War, civil conflict, and environmental disaster can fundamentally alter a locality, region, or entire country. The returnee may no longer have a job, home, or even family. In many countries, conflicts persist even after the war is over, contributing to the difficulty of readjustment. However, several international organizations that have provided critical support for the voluntary repatriation of refugees could potentially assist in some type of voluntary repatriation for TPS beneficiaries.
For example, the United Nations High Commissioner for Refugees has coordinated the repatriation of Cambodians, Afghans, and others. The U.S. Agency for International Development could support necessary small-scale infrastructure and development projects and could identify local nongovernmental organizations capable of delivering services at the grassroots level. If in fact these other agencies can not meet this burden, then the INS must design a comprehensive plan to keep better track of what groups remain in the United States after TPS expires.
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In a paper written by Bill Frelick and Barbara Kohnen of the U.S. Committee for Refugees on T.P.S. they state that, ''without some form of repatriation assistance, a TPS beneficiary who wanted to return home after the expiration of TPS but was uncertain about Job and housing prospects might decide against returning.'' We in Congress can work on improving the TPS program.
II. FRAUD IN PAST AMNESTY PROGRAMS
Now, turning to the Amnesty Programs enacted by Congress. The Immigration Reform and Control Act of 1986 created two amnesty programs. It is a fact that the general amnesty program was for aliens who had been in the U.S. illegally since January 1, 1982. There was also a ''Special Agricultural Worker'' or ''SAW'' Program for aliens who had worked at least 90 days in certain kinds of farm work in the period ending May 1, 1986. Three years after the enactment of this program, the INS identified 398,000 cases of possible fraud in the program, while admitting that it lacked both the manpower and the money to prosecute individual applicants.
However, much of the allegations of ''widespread fraud'' in the SAW program were never proved and were frequently based on assertions that turned out to be untrue. While there undoubtedly were applications approved for persons who were not eligible, we should not demonize Hispanic farmworkers by irresponsibly alleging widespread fraud. Most farmworkers work extremely hard and live below the poverty level; they should be applauded and assisted, not condemned.
Also, efforts to prove widespread fraud under the SAW Program were unsuccessful. This was evidenced in the series of cases known as Operation Cucumber. In these cases, the Judge in the Federal District Court in Florida ruled that, ''the fact that hard evidence of when, where and how long such persons worked in agricultural jobs is unavailable does not necessarily mean that they did not work.'' The judge went on to recommend that the U.S. Attorney voluntarily dismiss 65 additional cases that were pending from Operation Cucumber. We should be very careful Mr. Chairman about condemning a large group of people, especially poor, Hispanic, immigrant farmworkers, as a group that has committed ''fraud.''
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I believe fraud should be stamped out in the amnesty program, but I do not think Mr. Chairman that we should say that just because there are abuses in one program, that all of the amnesty programs should be grouped together unfairly and criticized.
The Nicaraguan Adjustment and Central American Relief Act of 1997 (NACARA) permitted Cubans and Nicaraguans who were physically present in the United States on or before December 1, 1995, to apply for adjustment of status to permanent residence. While there is a potential for fraud because the INS does and will not interview all of the applicants, it was the NACARA 97 bill that . had Republican support that created provisions which set up the potential for fraud. The Congress needs to review these programs which do have potential for fraud, and Mr. Chairman you have my full support in working with you to make these amnesty programs better with less potential for such abuse.
THANK-YOU Mr. CHAIRMAN
Mr. SMITH. I couldn't agree more. Thank you.
I'm going to ask the indulgence of the INS and I know, Mr. Virtue, you won't mind. We have a colleague and a member of the Judiciary Committee who has a private bill before us that we expect to take up about 11 a.m. and in a characteristic seizure of generosity, I agreed to allow the individual to testify and that is our colleague, Steve Rothman. Mr. Rothman, if you'll proceed, we'll be happy to hear the explanation and the reason for your bill.
Mr. ROTHMAN. Thank you, Mr. Chairman, for the seizure of generosity on your part and I'm grateful.
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I want to thank also the Ranking Member, Ms. Jackson Lee, and all of my friends and colleagues for your indulgence and those whose hearing I've interrupted.
I have a serious matter for the committee as well. There is a young man by the name of Vova Malafienko who is 14 years old and currently resides in Short Hills, New Jersey with his father and mother. He is one of eight children who was brought here from Chernobyl. He has leukemia. He lived about 30 miles from Chernobyl.
Of the eight children brought from Chernobyl in 1990, seven of the eight are dead. He is the sole survivor. Through the miracles of modern medicine and the luck, or the work of the Lord, he is still alive and doctors predict that if he stays in America with our most modern health care, he has a good chance of surviving into adulthood. They believe that given the continued existence of the poisons in the atmosphere in Chernobyl, if he were forced to go back, he would die. So this is literally about the life and death of a 14-year-old boy.
His father is an employed engineer making $40,000 a year. His mother is an accountant earning $21,000 a year. They will not be living off the Government of the United States. There is a companion bill in the Senate. The Senate passed this bill last year, and presumably it will pass it again this year.
I'm asking for my colleagues to report H.R. 429 favorably to the full Judiciary Committee so that this 14-year-old boy will be permitted to stay in America.
I must tell you I went to the middle school where he is last year. You could break down and cry. He was the subject of an assembly program and the whole student body has adopted this young man. He looks like any other American kid, in a very diverse town, I must tell you, but an American kid. The show of support for this young man who is literally facing death is extraordinary.
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I hope that my colleagues will pass H.R. 429.
I thank you for allowing me to testify this morning.
Mr. SMITH. Thank you, Mr. Rothman. I would ask you a question.
As I understand it, all the other individuals who have returned have, in fact, passed away. Is that correctother individuals similarly situated, had not found the medical care they required and as a result, they have died?
Mr. ROTHMAN. Right. They died.
Mr. SMITH. Thank you.
Are there any questions for our colleague? If not, let me say to those colleagues who have just joined usMr. Canady and Mr. Meehanwe appreciate your presence and we are expecting a larger contingent and getting to that magic number of seven for consideration of private bills at 11 a.m. So if you can stay with us a few more minutes, I think we will get to our critical mass. We appreciate your presence.
We will now proceed and go to our first panel, Mr. Paul Virtue, General Counsel, Immigration and Naturalization Service. Mr. Virtue, we welcome you back. As I said earlier, repeatedly you have testified and we appreciate that.
Page 27 PREV PAGE TOP OF DOC If you will proceed?
STATEMENT OF PAUL VIRTUE, GENERAL COUNSEL, IMMIGRATION AND NATURALIZATION SERVICE
Mr. VIRTUE. Thank you, Mr. Chairman.
Mr. Chairman, Congresswoman Jackson Lee and members of the subcommittee, I am pleased to have the opportunity to talk to you today about the Temporary Protected Status Program, TPS; the Legalization Program; and the efforts of INS to combat fraud in these programs while ensuring that benefits are extended to eligible applicants. I will also address what INS will do to detect fraudulent applications for permanent residence under NACARA and the Haitian Refugee Immigration Fairness Act, referred by us as HRIFA.
First, I want to assure you that INS shares your concerns about fraudulent claims, not just under the programs that are the subject of this hearing, but all of our immigration benefit programs. In recent years, INS, with strong support from Congress, has strengthened both its capacity to prevent fraud and its ability to pursue successful legal action against those who engage in fraudulent practices.
While our fraud prevention efforts have been enhanced in recent years, there is room for further improvement and we look forward to working with you during the 106th Congress to ensure that the valuable immigration benefits are provided only to those immigrants who are eligible. Preventing and punishing fraud are critical for maintaining the integrity of our Nation's immigration laws.
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While the TPS Program has not experienced a large amount of fraud, INS has nevertheless taken steps to ensure the integrity of the TPS process for the large number of people possibly affected by the decision to designate Nicaragua and Honduras for TPS. That decision made in response to widespread devastation caused by Hurricane Mitch could affect more than 100,000 Nicaraguans and Hondurans who were in the United States residing here as of December 30, 1998.
TPS was created by the Immigration Act of 1990 and gives the Attorney General the statutory authority to grant temporary protection from return to dangerous circumstances that affect either a whole country or region of that country. Once the Attorney General determines that conditions in a country or specific region meet the criteria for the law, TPS is designated entitling eligible nationals in the United States to a stay of deportation and work authorization. It does not, in and of itself, lead to permanent residency. Since the program's inception, the Attorney General has designated 13 foreign states and one region, Kosovo Province, for temporary protected status.
To prevent fraud, INS officers review the TPS applicant's documentation, conduct database checks in the Agency's central index system and schedule applicant's for fingerprinting to determine their prima facie eligibility. With the most recent designation of Nicaragua and Honduras, applicants must prove that they resided in the U.S. prior to December 30, 1998 and have been continuously present here since January 5, the date of the Federal Register publication. They have to provide supporting documents such as passports, employment records, rent receipts, school records and if there is any irregularity or question about the veracity of the supporting documents, the service center may refer the application to an INS district office for an in person interview, and if appropriate, further investigation. When applicants appear at an INS office to be fingerprinted, they must prove their identity by providing photo identification. If the applicant's identity is questionable or if they have no identification, the service center may refer that applicant to a district office for an interview.
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On the basis of these and other fraud prevention measures, INS believes that the risk of fraud in the TPS program is minimal. INS' vigilance, however, in anticipating fraud in TPS and other benefit programs is certain informed by our experience with the legalization programs created under the Immigration Reform and Control Act of 1986 referred to by us as IRCA.
We aim to solve the problem of illegal immigration through at two-pronged approach, first, by employer sanctions to reduce the power of the job magnet in the United States and to address the illegal population already present in the country, the law provided a means for long-term illegal residents as well as certain agricultural workers to become permanent residents of the United States.
There is no question that the provisions of IRCA were subject to widespread abuse, especially the special agricultural worker or SAW Program that granted agricultural workers who had performed 90 days of qualifying agricultural employment within a specified period status but then automatically converted the permanent lawful status after 1 year and in some cases, 2 years. Nearly 1.3 million application were filed under that program, about double the number of foreign workers usually employed in the United States in a given year. As of September 30, 1997, more than 1 million SAW applicants had received permanent resident status.
Much of the fraud that occurred in IRCA is attributable to some of the statutory limitations that the law included. To establish eligibility for SAW status, for example, IRCA allowed applicants to file an affidavit if no other documents were available. In addition to that, restrictions on the permissible uses of information supplied by the applicant and the confidentiality provisions hampered INS' pursuit of possible fraud detected in the application process. The agency was further thwarted in the courts which had ruled that INS could not deny an application simply because the supporting documentation was supplied by a claimed employer who had been convicted of fraud.
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I know the red light is on but if I could just draw a couple of distinctions between TPS and IRCA that I think are important.
First of all, IRCA offered the possibility of permanent residency, a much more valuable benefit than the temporary work authorization provided under the TPS Program. Second, and perhaps more important, by applying for TPS many applicants were identifying themselves to the INS as being people who were unlawfully present in the United States. So once the TPS period expires they may be targeted for removal. Once TPS is terminated, all applicants revert to their previous immigration status. Those are two components that were not present under the IRCA provisions. As with the legalization provisions, NACARA and IRFA also provide permanent resident status and we are very attentive to the need to have fraud prevention measures in place for those programs.
Mr. Chairman, we worked with you and your staff prior to the recent TPS designations for Nicaragua and Honduras; your recommendations with respect to fraud prevention were most helpful to us and we are prepared to work with you and the subcommittee to further ensure that only immigrants who are truly eligible for the valuable benefits available under law are provided those benefits and that those who obtain benefits or who try to obtain benefits illegally are punished for their crimes.
Thank you and I would be happy to answer any questions that you or any of the members of the subcommittee may have this morning.
[The prepared statement of Mr. Virtue follows:]
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PREPARED STATEMENT OF PAUL VIRTUE, GENERAL COUNSEL, IMMIGRATION AND NATURALIZATION SERVICE
Mr. Chairman, Congresswoman Jackson Lee, and Members of the Subcommittee, I am pleased to have the opportunity to talk to you today about the Temporary Protected Status (TPS) program, the legalization program, and the efforts of the Immigration and Naturalization Service (INS) to combat fraud under these programs while ensuring that benefits are extended to eligible applicants. I will also address what INS will do to detect fraudulent applications for permanent residence under the Nicaraguan Adjustment and Central American Relief Act (NACARA) and the Haitian Refugee Immigration Fairness Act (HRIFA).
Before I provide a detailed report on the subjects of today's hearing, let me summarize the major points. First, I want to assure you that INS shares your concerns about fraudulent claims, not just under the programs that are the subject of this hearing, but in all of our immigration benefit programs.
In recent years, INS, with the strong support of Congress, has strengthened both its capacity to prevent fraud and its ability to pursue successful legal action against those who engage in fraudulent practices. While our fraud prevention efforts have been enhanced in recent years, there is room for further improvement, and we look forward to working with you during the 106th Congress to ensure that the valuable benefits we offer are provided only to those immigrants who are eligible. Preventing and punishing fraud are critical for maintaining the integrity of our nation's immigration laws.
While the TPS program has not experienced a large amount of fraud, INS has nevertheless taken steps to ensure the integrity of the TPS process for the large number of people affected by the decision to designate Nicaragua and Honduras for TPS. This decision, made in response to the widespread devastation caused by Hurricane Mitch could affect more than 100,000 Nicaraguans and Hondurans who resided in the United States as of December 30, 1998.
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TPS was created by the Immigration Act of 1990, which amended the Immigration and Nationality Act (INA) to give the Attorney General the exclusive statutory authority to grant temporary protection from return to dangerous circumstances that affect a whole country or region of a country. Once the Attorney General determines that conditions in a country, or a specific region within a country, meet the criteria of the law, TPS is then designated, entitling eligible nationals to a stay of deportation and work authorization. TPS does not lead to permanent residency. Since the program's inception, the Attorney General has designated 13 foreign states and one region within a state, Kosovo province, for TPS.
To prevent fraud, INS officers review the TPS applicant's documentation, conduct database checks in the agency's Central Index System, and schedule applicants for fingerprinting before determining their prima facie eligibility. For the most recent designation of Nicaragua and Honduras, applicants must prove that they resided in the United States prior to December 30,1998, and have been continuously present since January 5, 1999, by providing supporting documents such as passports, employment records, rent receipts and school records. If there is any irregularity or question about the veracity of the supporting documents, the Service Center can refer the application to an INS district office for an in-person interview and, if appropriate, investigation.
When applicants appear at an Application Support Center (ASC) to be fingerprinted, they must prove their identity by providing photo identification. If the applicant's identity is questionable, or if they have no photo identification, the Service Center can refer the applicant to a district office for an interview. On the basis of these and other fraud-prevention measures INS believes that the risk of fraud in the TPS program is minimal.
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INS vigilance in anticipating fraud in the TPS and other benefit programs is based on our experience with the legalization program, which was created under the Immigration Reform and Control Act of 1986 (IRCA). IRCA aimed to solve the problem of illegal immigration through a two-pronged approach. First, a system of employer sanctions was established to reduce the power of the job ''magnet'' to attract illegal immigrants to the United States. To address the illegal population already present in the country, the law provided a means by which long-term illegal residents, as well as certain agricultural workers, could obtain lawful permanent resident status, thus becoming ''legalized.''
There is no question that the provisions of IRCA were subject to widespread abuse, especially the Special Agricultural Worker (SAW) program that granted agricultural workers who had performed 90 days of qualifying agricultural employment within a specific period temporary lawful status that automatically converted to permanent lawful status after one year. Nearly 1.3 million applications were filed under SAW status, about double the number of foreign farm workers usually employed in the United States in any given year. As of September 30, 1997, more than 1 million SAW applicants had received permanent resident status. The difference represents cases that were denied or remain pending.
Much of the fraud that occurred under IRCA is attributable to statutory limitations the law placed on INS, restrictions that the TPS program doesn't impose on us. To establish eligibility for SAW status, IRCA allowed applicants to merely file an affidavit if no other documents were available. The confidentiality restrictions of law also prevented INS from pursuing cases of possible fraud detected during the application process. The agency was further thwarted by the courts, which ruled that INS could not deny an application simply because the supporting documentation was from a claimed employer suspected or convicted of fraud.
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There are two critical distinctions between TPS and the legalization and SAW program that make TPS fraud less likely. First, IRCA offered the possibility of permanent residency, a much more valuable benefit than the temporary work authorization provided by TPS, and as such making it more likely someone might engage in fraud to obtain it. Second, and perhaps most important, by applying for TPS, many applicants identify themselves to INS as being illegal, so once the TPS period expires they may not be eligible for other immigration benefits and they could be targeted for removal. Once TPS is terminated all applicants revert to their previous immigration status.
Both NACARA and HRIFA offer permanent residence as a benefit, which is more attractive than the temporary work authorization provided to TPS beneficiaries. INS has prepared special guidelines for the adjudication of applications under these two statutes that are aimed at deterring and detecting fraud. Any NACARA or HRIFA case where there is a discrepancy in the documentation, or a question as to the nationality of the applicant, is referred to a local INS office and the applicant is called in for an interview. In addition, INS is providing special training to its personnel so that they understand fully the statutes, regulations, and field guidance.
TEMPORARY PROTECTED STATUS
In administering the TPS program, the Immigration and Naturalization Service (INS) seeks to provide temporary humanitarian relief as directed by the statute while remaining sensitive to concerns regarding fraud. INS recognizes that TPS is an exceptional action on the part of the U.S. government and is careful to make judicious recommendations to the Attorney General for the exercise of TPS authority. I will address the INS procedures both generally and in the particular context of Honduras and Nicaragua. These are the most recent TPS designations. Since the beginning of the program, the Attorney General has designated thirteen foreign states and one region of a state, Kosovo province, for TPS. Ten of the fourteen designations are currently in effect. The INS has adjudicated over 220,000 applications for TPS. Since the expiration of the El Salvadoran designation which accounts for approximately 187,000 applications, INS has received slightly more than 30,000 applications for TPS, not including recent applications from Honduras and Nicaragua.
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The Immigration Act of 1990 contained provisions that created section 244 of the Immigration and Nationality Act (Act), Temporary Protected Status (TPS). Section 244 of the Act provides the statutory authority for the Attorney General to allow individuals to remain in this country because of their nationality or the particular region they come from in a country.
The statute requires the Attorney General to make specific findings regarding conditions in the particular country or region before any designation can be made. To make informed decisions about which countries should be designated and when such designations should expire or be extended, INS confers regularly with the Department of State and other appropriate government agencies about conditions in specific countries. In the course of considering specific countries, INS evaluates TPS recommendations made by other branches of the government, members of the public and non-governmental organizations. Despite the sometimes large number of countries discussed, the INS forwards few recommendations to the Attorney General because of the specific findings required to provide this extraordinary relief. Once INS determines that a country meets the criteria, we forward our recommendation to the Attorney General for a decision.
When a designation is made, the Attorney General must also determine the length of the designation, which can last from a minimum of six months to a maximum of eighteen months. Most designations have been made for a period of 12 months. A designation may be extended by the Attorney General, after a review of country conditions.
Page 36 PREV PAGE TOP OF DOCWHO IS ELIGIBLE FOR TPS?
Nationals of designated states and persons who have no nationality and last habitually resided in the designated state are eligible for TPS provided they meet certain basic statutory criteria. Proof of one's nationality is absolutely necessary in determining eligibility. The applicant must demonstrate that he or she has been continuously physically present in the United States since the effective date of the designation and has continuously resided in the United States since the date that the Attorney makes a TPS designation. Next, the individual must be admissible as an immigrant, although several grounds of inadmissibility may be waived. The criminal grounds of inadmissibility and those grounds relating to national security may not be waived. Finally, the applicant must apply for TPS during the initial registration period. If the designation is extended and an individual was present in a valid immigration status at the time of the initial designation, that individual can apply during the extension as part of late initial registration. The Attorney General can set out the parameters for the registration period in the announcement of the designation.
Certain individuals are not eligible for TPS. A person convicted of one felony or two or more misdemeanors in the United States is not eligible for TPS. Individuals barred from asylum are also barred from TPS.
To remain eligible for TPS, applicants must maintain continuous physical presence and must register annually with the INS. The Attorney General must withdraw TPS if it is determined that the beneficiary was not eligible for the benefit when he applied, has failed to maintain continuous physical presence in the U.S., or has failed to register annually with the Service in cases of an extension of TPS or designations longer than one year.
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TPS BENEFITS FOR NON-CRIMINAL ALIENS
TPS is a temporary form of relief that does not lead to permanent residence. In other words, TPS does not prevent an individual from becoming a permanent resident, but it does not provide a basis for adjustment. Applicants granted TPS receive a stay of removal and employment authorization. Detained applicants granted TPS are released from INS detention.
The statute further directs INS to provide temporary treatment benefits to applicants who demonstrate prima facie eligibility for TPS. Temporary benefits include the stay of removal and employment authorization. Under the regulations, the INS must make a determination on an individual's prima facie eligibility based on a complete application. A complete application requires evidence of the applicant's nationality, evidence of their residence and presence in the United States, completed forms and fees or fee waivers and their appearance for fingerprints.
DESIGNATION OF HONDURAS AND NICARAGUA
INS receives TPS applications at its district offices for all TPS designations except for Nicaragua and Honduras. After determining prima facie eligibility for TPS, INS officers adjudicate the application for employment authorization. If the applicant is eligible, both applications are forwarded to the Nebraska Service Center (NSC). If the applicant is not eligible because he or she is not a national of a designated state, has been convicted of a felony or two misdemeanors, or does not have documentation to support the required length of presence or residence in the U.S., the district adjudicator denies the application. The district adjudicator conducts an interview, and when necessary, will confront an applicant with any questions or discrepancies. In instances where a pattern of fraud is suspected, the district adjudicator can refer the matter to Investigations.
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In the announcement of the designations of Nicaragua and Honduras, the Attorney General estimated that more than 100,000 people present in the United States could apply for TPS. Due to the potentially large number of Honduran and Nicaraguan applicants, the Service decided to consolidate initial application processing at our four service centers..
PROCESSING APPLICATIONS AT THE SERVICE CENTERS
Service procedures for determining an applicant's prima facie eligibility emphasize security. Officers at the service centers will review the applicant's documentation, conduct database checks in the INS Central Index System (CIS), and confirm that the applicant has been fingerprinted before determining the applicant's prima facie eligibility. If there is any irregularity or question about the veracity of the documents submitted with an application, the service center refers the application to an INS district office for an interview and if appropriate, an investigation.
Then INS officer must consider various criteria before determining prima facie eligibility. The INS officer evaluates the authenticity of the applicant's identity and nationality documentation. The INS has supplied the adjudicators with samples of valid identity documents from Nicaragua and Honduras. The officer next must determine from a review of supporting documentation whether the applicant has continuously resided in the United States since December 30, 1998 and has been continuously present since January 5, 1999. Supporting documentation include passport stamps, I94 cards indicating entry, employment records, rent receipts, school records, medical records and other miscellaneous evidence. The officer must then determine the applicant's admissibility as an immigrant. This determination is based on the answers to a series of questions contained on the application for TPS, Form I821, and a check of the CIS. The CIS database contains information such as nationality, alien number, and manner of entry on individuals previously encountered by INS. The CIS check can verify several of the applicant's responses as well as report on the applicant's prior immigration status.
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The Service relies upon two security measures within the fingerprinting procedures to insure against fraud: identity verification and background check. After the Service receives a TPS application, the applicant is scheduled for fingerprinting. The Service does not consider an application to be complete until the applicant's fingerprints are taken. This means that an applicant cannot be granted temporary benefits until and unless they appear at an application support center (ASC) to provide fingerprints. At the ASC, the applicant must show their fingerprinting notice and a photo identification to verify their identity. If the applicant's identity is questionable or there is no identification, the case will be referred to the district office for an interview.
As with other benefit applications, the Service forwards the applicant's fingerprints to the FBI for criminal background checks. A final determination on an applicant's eligibility for TPS will be made only after the results from the FBI are reviewed. If no criminal record is discovered and the applicant is otherwise eligible, TPS will be granted.
WHEN THE DESIGNATION IS TERMINATED
Upon termination of the program, the TPS beneficiary reverts to his or her previous immigration status. If the alien is without status, removal priorities determine if the Service targets him or her for immediate removal.
FRAUD DETERRENCE EFFORTS
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INS has taken extra measures to prevent such in the designations of Nicaragua and Honduras. The Attorney General first limited the registration period to six months. Limiting the registration period will discourage persons who were not in the U.S. at the time of the designation from coming to this country throughout the designation period and registering for TPS and will compress the period in which fraud will be an issue. In all previous designations, the registration period has lasted for the entire designation period. Even in those designations with longer registration periods, INS has not encountered high levels of fraud.
Certain steps have been taken within the affected countries. Cables were sent to both countries by the Department of State at the time of the designations with warnings that those not present in the United States at that point would not be eligible for relief. In a press conference in Central America on January 29, 1998, Commissioner Meissner also warned individuals not already in the United States not to risk the journey north because they would not qualify for TPS.
Requiring the applicant to appear for fingerprints and verifying their identity at an ASC is a deterrent for those submitting fraudulent applications. The applicant will have to produce photo identification and will have to sign the appointment notice. If the service center adjudicator suspects fraud, he or she may request that the database be searched for duplicate names, addresses, preparers, or zip codes. If ASC personnel questions the identity documents produced at the time of fingerprinting they will inform the service center. The service center can refer the applicant for an interview in the district. As I mentioned earlier, the Service has provided the adjudicators with examples of valid nationality documents from both Honduras and Nicaragua. INS is confident that these measures will be effective to combat fraud.
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As demonstrated, the application processing system set up by the Service contains several internal security checks designed to discourage and combat fraud. In addition to these, the Service also combats fraud by anticipating the fraud issues of specific designations. Often the most useful fraud prevention can only be discovered as applications are processed and trends become evident. For example, after the designation of Bosnia-Herzegovina, the Service found it difficult to determine if applicants with Yugoslavian passports were from Bosnia-Herzegovina. To address this, the Service issued memoranda describing various Yugoslavian passports and deciphering the various codes found on them. The Service also issued a map of Bosnia-Herzegovina as well as a list of towns. This strategy proved effective, and for the designation of Kosovo, the Service distributed maps of Kosovo and information on passports from the Republic of Serbia and the Republic of Montenegro. Providing support to officers as they determine the veracity of the documents before them is one of the most important ways of preventing fraud for any benefit. For TPS, this support is essential.
CONCLUDING REMARKS ON TPS
While providing the extraordinary, yet temporary TPS relief, INS is committed to deterring and preventing fraud. Approximately 1.3 percent of TPS applications since 1992 have been denied for fraud. Further, as explained above, we have taken many steps to discourage and prevent fraudulent TPS claims. On the basis of these efforts, INS believes that the integrity of the TPS program is firmly intact.
BRIEF BACKGROUND ON THE LEGALIZATION PROGRAM
Page 42 PREV PAGE TOP OF DOC More than three million aliens filed applications for legalization under the provisions of the Immigration Reform and Control Act of 1986. The statute was drafted both to encourage undocumented aliens to present themselves to the INS for legalization and to address the migrant worker's lack of documents that could be used in support of an application. These and other factors led to a high degree of fraud in the program. INS was committed then, as it is, now to fighting application fraud, but a variety of factors made it difficult to attack fraud at the level of the individual applicant. INS anti-fraud efforts concentrated on filers of false affidavits and false document vendors. This category of fraud was most prevalent both in the underlying legalization program and in applications for class membership in the legalization litigation.
The legalization program was created under the Immigration Reform and Control Act of 1986 (IRCA). IRCA was passed in a legislative environment in which sweeping changes were being made to the Immigration and Nationality Act. In addition to IRCA, the last days of the 99th Congress also saw the passage of the Immigration Marriage Fraud Amendments of 1986, as well as the Immigration and Naturalization Act Amendments of 1986.
IRCA was intended to solve the problem of illegal immigration through a two-pronged approach: The first prong created a system of employer sanctions, intending to remove the job ''magnet'' that attracts illegal immigrants. To address the illegal population already present in the United States, the second prong provided a means by which long-term illegal residents, in addition to certain agricultural workers, could obtain lawful permanent resident status, thus becoming ''legalized.''
The legalization provisions of the IRCA provided for adjustment of the status of aliens who had resided in the United States continuously in unlawful status since January 1, 1982. Upon satisfactory proof of such continued residence, an alien was granted temporary resident status, followed by a grant of permanent resident status after eighteen months. These provisions are referred to as ''245A,'' for the section of the Immigration and Nationality Act containing the provisions, or more generally as ''legalization.''
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In addition to section 245A legalization, agricultural workers who could demonstrate that they performed qualifying agricultural work in the United States for at least ninety days during a designated period were granted temporary lawful resident status which was automatically converted to lawful permanent status after one year. This program was known as the Special Agricultural Worker program (SAW).
NUMBER AND CHARACTERISTICS OF APPLICATIONS
INS statistics indicate that 1,763,434 aliens applied for legalization under the general provisions of section 245A. Of that number, 1,660,157 were approved for temporary resident status, and 1,593,046 aliens ultimately acquired permanent residence through the program. INS statistics do not track the reasons for the denial, so it is impossible to present an accurate count of how many of the denials were based on application fraud.
Under the SAW programs, 1,277,514 aliens applied for legalization. As of August 15, 1992, 1,076,560 aliens received temporary residence. As of September 30, 1997, 1,091,846 had received permanent resident status. As in the case of 245A legalization applications, INS statistics do not track the reasons that an application was denied. You will notice that these numbers reflect a larger number of permanent residents through the SAW program than temporary residents. The Legalization Application Processing System (LAPS) database was set up to track and process SAW and legalization applications. This discrete database was established both because of the temporary nature of the legalization program and because of the confidentiality provisions of the IRCA. Because the legalization/SAW program was reaching its conclusion, the LAPS system was closed out in August 1992. Because of appeals of revocations and denials, individuals continued to receive permanent residence after the LAPS close-out. It is this fact that accounts for the discrepancy.
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FRAUD DURING THE LEGALIZATION AND SAW PROGRAMS
As I stated earlier, the rate of suspected fraud in the SAW cases was far greater than in the 245A legalization program. This was generally because of the easier standards of proof required to establish eligibility for SAW status. Whereas section 245A legalization applicants had to provide documentary proof of continuous unlawful residence from January 1, 1982 to the date of filing the application, SAW applicants were allowed to meet their burden by filing affidavits if no other documents were available. This more lenient documentary requirement was an acknowledgement by the Congress of the transitory nature of migrant agricultural employment and its effect on the farm worker's ability to keep and produce documentary evidence relating to eligibility for SAW status.
The great attraction for SAW fraud was permanent residence, which allowed the successful SAW applicant to in turn petition for additional relatives. Employment authorization, which the INS was required by law to provide upon the presentation of a nonfrivolous application, also encouraged many aliens to file applications. Compounding the problem was the fact that the SAW statute did not allow a finding that an application was frivolous until the evidence of agricultural work was disproved by the INS. Since much of the evidence for agricultural work was in the form of affidavits, disproving the application was a difficult proposition.
ANTI-FRAUD ENFORCEMENT EFFORTS
Because of the importance of the affidavit in the SAW application process, the INS focused its enforcement efforts on addressing the creation and sale of false affidavits. By far the most prevalent fraud in the SAW program was committed by farm labor contractors or farm owners who sold their affidavits to aliens.
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As part of the implementation of the legalization and SAW programs, the INS created Document Analysis Units. A unit was created at each of the INS' four Regional Processing Facilities. These units analyzed and developed intelligence regarding persons suspected of committing legalization and SAW fraud, and developed profiles of individual violators and document packages. By the second quarter of fiscal year 1990, over 920 arrests for SAW fraud had been made, yielding 822 indictments. These arrests led to the conviction of 513 document vendors and SAW fraud arrangers. In addition, this intelligence was used in evaluating the applications of aliens who claimed to have worked for individuals who were known document vendors.
INS efforts to combat fraud were affected by two external factors: the confidentiality provisions of IRCA and judicial decisions regarding the use of intelligence regarding fraud. One of IRCA's hallmarks was its strict confidentiality provisions. These provisions were meant to ensure that ''illegal'' aliens were not discouraged from filing applications for fear of INS enforcement actions against them. Thus, no employee of the Department of Justice was permitted to use any information from a legalization application for any purpose other than to make a determination on the application. Also, no employee of the Department of Justice was permitted to make any publication in which information submitted by a particular individual could be identified. These provisions were to be enforced by criminal sanctions and a $10,000 fine. Although the confidentiality provisions were intended to allow for the prosecution of fraud and for the termination of temporary resident status for fraud, the definitions of permissible activity were complex and were poorly understood by the enforcement community. This lack of understanding, combined with the fear of monetary penalties, placed a chill on prosecution of all but the most clear and egregious violations.
Page 46 PREV PAGE TOP OF DOC INS efforts to combat fraud in individual applications were also hampered by the results of litigation. Concentrating anti-fraud efforts on document or affidavit vendors was meant to provide intelligence in dealing with the fraudulent applications filed as a result of those document vendor's crimes. However, the district court in Abdullah v. INS, held that the INS could not deny applications simply because the supporting documentation was from a past employer convicted of fraud, without adequately considering the merits of the applicant's individual case. The INS thus had to go ''back to square one'' in the adjudication of many cases, thus wasting valuable anti-fraud intelligence.
A similar case involved an INS regulation stating that uncorroborated personal testimony by a SAW applicant would not meet the alien's burden of proof. In Haitian Refugee Center, Inc. v. Nelson, the court held that this regulation imposed an impermissible burden of proof. Easily met standards of proof, judicial decisions, and the confidentiality provisions of the statute meant that the INS was severely limited in combating fraud against individual applicants.
THE LEGALIZATION LITIGATION
The implementation and operation of the Legalization program were subject to early litigation. The two principal lawsuits, Catholic Social Services v. Reno (''CSS'') and LULAC v. INS (later amended to ''Newman v. INS''), challenged INS regulations published under the general legalization provisions of section 245A. The CSS case challenged INS regulations that disqualified aliens who left the United States without advance parole after the application period began and then returned.
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The LULAC/Newman case centered on the statute's requirement that an applicant for legalization must have maintained continuous unlawful presence. The regulation in place at the time provided that an alien who left the United States and returned using a facially legitimate but invalid visa was no longer unlawfully present for purposes of legalization.
In both cases, the government argued that the lawsuits could not be maintained by aliens who had not actually applied or attempted to apply (by submitting a complete application and fee to an INS officer) before May 4, 1988. The litigation ultimately reached the Supreme Court in 1993, where the government's position prevailed. Despite the Supreme Court's decision, the government's efforts to end the litigation were unsuccessful in the lower courts. During the ongoing litigation, thousands of aliens who had failed to apply for legalization during the one-year statutory application period were granted work authorization and stays of removal on the basis of membership in the class action lawsuits.
FRAUD IN OBTAINING CLASS MEMBERSHIP IN THE LITIGATION
As the result of a court order, the INS was required to accept legalization applications and affidavits of class membership from aliens seeking class membership in the CSS and LULAC/Newman cases. In LULAC, class members are allowed to file skeletal applications (i.e. applications without all supporting documents) together with a nonrefundable fee. Applicants were required to establish only their identity; that they reentered the United States with a nonimmigrant visa or other travel document after January 1, 1982 and before May 4, 1988; and the reasons why an application was not filed during the one-year application period.
Page 48 PREV PAGE TOP OF DOC CSS applicants for class membership were required to file an application for legalization (Form I687) and establish by independent evidence such as a bus ticket, airplane ticket, or declaration of a third party that they were outside of the United States due to a brief, casual and innocent absence after May 1, 1987 and before May 4, 1988. In addition, these applicants had to submit a declaration explaining the reasons why no application was filed during the application period. If these conditions were met, the INS was required to issue an Employment Authorization Document.
Many aliens claim eligibility for legalization through these lawsuits, which are commonly referred to as the ''late amnesty'' litigation. The approximate number of aliens affected by the litigation is as follows: In the CSS case, 180,287 aliens sought class membership. Of this total, 40,306 received class membership. In the LULAC/Newman case, 50,778 aliens sought class membership. Of this total, 25,768 received class membership.
INS together with the Department of Justice prosecuted a large number of cases involving class membership fraud. By far, the largest operation was Operation Desert Deception in Las Vegas, Nevada. The organizations and individuals targeted in that investigation filed some 22,000 applications, many of which were fraudulent, for both legalization and class membership. As of June 1996, this operation had resulted in 55 criminal convictions. Of these, the most noteworthy was the conviction of Jose Velez, the director of the Nevada chapter of LULAC and then National President of LULAC at the time the offenses leading to his conviction took place. Between March 1988 and January 1991, Velez and his co-conspirators submitted approximately 3,000 fraudulent applications.
1996 STATUTORY AMENDMENTS
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Section 377 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) was enacted on September 30, 1996. That section provides that courts may only hear cases brought by persons seeking relief under the IRCA if they in fact filed a timely application for legalization before May 4, 1988, or ''attempted to file a complete application and application fee with an authorized legalization officer of the INS but had the application and the fee refused by that officer.''
Based on the enactment of IIRIRA section 377, the United States Court of Appeals for the Ninth Circuit on January 16, 1998 instructed the district court to dismiss the CSS case and vacated all interim relief orders in the case. The LULAC/Newman case was remanded to the district court to determine if there were any persons who could meet the standard established in IIRIRA section 377.
In April 1998, following the Ninth Circuit's dismissal in CSS, plaintiffs filed a nearly identical lawsuit (CSS2) in the same district court (the U.S. District Court for the Eastern District of California). On July 2, 1998, Judge Lawrence Karlton entered a preliminary injunction ordering INS to stay the removal and continue to extend employment authorization benefits to a nationwide class of former class members in the original CSS lawsuit. The Ninth Circuit then stayed the district court's orders granting these benefits in CSS2, so former CSS class members currently enjoy no benefits as class members. LULAC/Newman class members continue to receive employment authorization and, under the court's order, ''shall not be removed'' by INS. Both cases are thus currently pending in District Court, essentially to determine whether there are persons who meet the standard set forth in IIRIRA section 377
Page 50 PREV PAGE TOP OF DOCPREVENTING NACARA AND HRIFA FRAUD
NACARA and HRIFA provide various forms of immigration benefits and relief from removal to certain Central Americans, Cubans, Haitians and nationals of former Soviet bloc countries. Specifically, the laws provide that eligible Nicaraguans, Cubans and Haitians can be considered for adjustment of status to that of permanent resident.
The interim regulation provides for a discretionary waiver of interview in some NACARA adjustment cases. INS' internal guidance relating to the interview waiver provision, however, restricts its use to very specific situations. The guidance requires an interview in cases in which the evidence submitted to document presence in the United States is not verifiable from INS records. We have also designed mechanisms to identify and deter fraudulent applications by persons undeserving of the special relief accorded to eligible Nicaraguans, Cubans, and Haitians
The 1986 Immigration Reform and Control Act provided a generous amnesty for people who were unlawfully present in the United States. Unfortunately, the prospect of work authorization and permanent residency in the United States attracted a significant amount of opportunism and fraud. Moreover, the confidentiality provisions of the statute and evidentiary provisions that shifted the burden of proof to the government have made it difficult, and in some cases, impossible to deny or revoke status in individual cases. Accordingly, INS, the Criminal Division of the Justice Department, and the United States Attorneys have focused their investigative and prosecution efforts on fraudulent document vendors and application preparers. In the SAW program, those efforts have led to 920 arrests, 822 indictments, and 513 convictions for fraud and related criminal activity. INS and the Department of Justice have been and remain committed to identifying and prosecuting criminal fraud to the fullest extent of the law and the prudent management of available resources.
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While it does not lead to lawful status in the United States, temporary protected status does afford work authorization and a temporary stay of removal. We recognize the opportunity for the abuse of this humanitarian provision of the statute. We have taken what we believe to be prudent measures to identify and address fraudulent attempts to gain the benefits of this temporary protection. Some of those measures were discussed with you prior to the most recent designations of Nicaragua and Honduras. We found your recommendations most helpful and we would be happy to consider any further recommendations you may have in this regard.
Mr. Chairman, that concludes my testimony, I am happy to answer any questions you may have.
Mr. SMITH. Thank you, Mr. Virtue.
A quick procedural question, and maybe I shouldn't be surprised. I mentioned the letter that took 8 months to be replied to in my opening statement, but is there any good reason that the Attorney General has not submitted the TPS reports that are required under the statute? You have had one report in something like 8 years.
Mr. VIRTUE. I suppose it depends on how we characterize good reason but there certainly has been a problem with the statistical information that we capture. We did a report in 1992 that was specifically nationality-based and had good, firm numbers in there in terms of the applications, grants and denials for that period of time. Since 1992 and that special report we prepared, the information that we gain is from our performance analysis system which is not individual-specific, it includes numbers of applications and includes applications for people who are seeking renewals of their employment authorizations.
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Mr. SMITH. Mr. Virtue, the question persists, which is why haven't they done it and are they going to do it in the future?
Mr. VIRTUE. We are going to do it. We have asked our Statistics Branch to go back and review the information they have in order to provide the further breakdown that is required.
Mr. SMITH. When are we going to receive that? Do you have any idea?
Mr. VIRTUE. My expectation is before the end of this month.
Mr. SMITH. Okay, great. Thank you.
My next question goes to the TPS Program itself. What figures do you have to show how many individuals who received temporary protective status actually voluntarily departed when they were supposed to?
Mr. VIRTUE. Voluntarily reported for deportation?
Mr. SMITH. No, no. Aliens who had been granted TPS, how many voluntarily left when the TPS period, typically 18 months, had expired?
Mr. VIRTUE. We have no information on that.
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Mr. SMITH. Do you have any information on the number of individuals the INS has sought out and deported after their TPS had expired?
Mr. VIRTUE. We don't track our removals on the basis of whether the person had applied for and been granted temporary protected status.
Mr. SMITH. In other words, you have no idea what happens to the individuals who were granted TPS? They come into this country, you don't know how many leave when they are supposed to, nor do you deport anybody or any record of deporting anybody after the time has lapsed?
Mr. VIRTUE. We haven't tracked those removals either in terms of voluntarily removals or required removals in terms of tracking them, relating that to the temporary status.
Mr. SMITH. You don't have any figures of either category?
Mr. VIRTUE. I don't.
Mr. SMITH. What about aliens who have tried under the guise of fraud to obtain TPS status or any other status, what happens to those individuals?
Mr. VIRTUE. The information we have on that is since the 1992 report. Overall denials for TPS range around 10 percent; denials with respect to fraud are about 1.3 percent.
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Mr. SMITH. My question didn't go to that. My question went to individuals who have sought temporary protected status but who have been used fraudulent documentation to try to obtain that. When you become aware of the use of fraudulent documents, what happens to those individuals?
Mr. VIRTUE. Typically in an individual case, the U.S. Attorney's Office would not likely accept that case for prosecution, so there would be very few criminal prosecutions but one consequence would be to examine whether that case would be prosecuted for fraud and referred to the U.S. Attorney's Office. That person would be subject to being placed in removal proceedings and removed from the United States.
Mr. SMITH. Realistically, how many people who apply for permanent residency use fraudulent documents ever receive any form of sanction or are deported? Is it a very tiny fraction of the whole?
Mr. VIRTUE. I simply don't have figures to hazard a guess on that.
Mr. SMITH. That is three categories you don't have figures for but that is interesting to know.
Let me point to an example. We are going to put up an enlargement of an advertisement that was actually published in Nicaragua to point out my concern about fraud and individuals who are encouraging fraud and unfortunately, participating in fraud.
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This was an advertisement, as I said, published in Nicaragua, placed by immigration attorneys in Miami who seek clients to apply for residency under NACARA. The only problem here is, as you know, Mr. Virtue, that Nicaraguans eligible for NACARA are supposed to have been continually present in the United States since December 1, 1995. So you have an ad in another country soliciting individuals, I think in violation of the law.
By the way, I want to use this as an example of why we have so much fraud and individuals who try to perpetrate that fraud. We have removed the last names of the attorneys involved. I noticed the first name of the first attorney happens to be Lamar. That was not intentional and there is no coincidence there.
Mr. GALLEGLY. But it is much more profitable. [Laughter.]
Mr. SMITH. Mr. Gallegly, you made a good point.
Mr. Virtue, you don't need to comment if you don't want to except that this is an example of the same kind of thing I assume you are concerned about, as I am. My quick question is, is there any way you know of to prosecute the attorneys who might have placed ads encouraging individuals to violate the law?
Mr. VIRTUE. There are provisions certainly for false statements under 18 U.S.C. 1001 where we can file or refer cases to the U.S. Attorney's Office for prosecution. Simply based on the advertisement for fraud, that would probably be something where we would have to deal with the Florida Bar.
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Mr. SMITH. Would you check on that for me?
Mr. VIRTUE. We will check on that with respect to the advertisement.
One thing I should mention just in terms of NACARA, there was a provision in that statute that a person actually outside the United States could, nonetheless, qualify for adjustment of status under NACARA and that is why you see people applying for advanced parole to come to the United States and apply.
The regulation requires that the person supply government-issued documents in order to qualify and the vast majority of people who have applied thus far have supplied INS-issued records. So, particularly the Nicaraguan population here is one that we know very well and that we have records on, so that if we see this type of fraud, we will be in a position to address it.
Mr. SMITH. Thank you, Mr. Virtue.
The gentlewoman from Texas is recognized.
Ms. JACKSON LEE. Thank you very much, Mr. Chairman.
Mr. Virtue, I would appreciate it if you would try to see some numbers for us in some of these issues and I'm going to share with you some of my calculations with limited old math.
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Under my accounting, I have maybe 100,000 who are here on TPS status. I noted that there were 60,000 from Nicaragua who applied for TPS status and TPS status was granted to Hondurans and Nicaraguans and stays of deportation to Guatemalans and Salvadorans.
The reason why I raise those numbers is because I want to put all this into perspective. I think we have a problem but at least I don't want it in the context of Americans believing that we have millions of individuals in the country on TPS status. Can you at least answer that? Do you believe the numbers are in the millions?
Mr. VIRTUE. No. In fact, with respect to Hondurans and Nicaraguans, we have received about 22,000 Honduran application packets which may involve more than one person. Even assuming there are two per packet, which is probably the outside, that would be around 44,000 Hondurans.
The number of applications that we have received thus far from Nicaraguans is very low, just around 1100 application packets for Nicaraguans. Many of the Nicaraguans in the United States are eligible for NACARA adjustment, so that is probably why we are not seeing those folks coming forward. Yes, it is very much fewer than a million people.
Ms. JACKSON LEE. Maybe my 100,000 figure is about in the ballpark?
Mr. VIRTUE. That is certainly within the ballpark.
Page 58 PREV PAGE TOP OF DOC Mr. SMITH. I thought there were 200,000 in 1992, is that correct?
Mr. VIRTUE. There were 200,000 but those were principally Salvadorans and that TPS has expired.
Mr. SMITH. You weren't talking about the overall number, you were just talking about that category?
Ms. JACKSON LEE. Tell me what you are talking about? He is challenging my math.
Mr. SMITH. No, I am not. I just wanted the total figure. [Laughter.]
Mr. VIRTUE. I will try to answer any question you have, but I understood the question to be people who are currently in the United States under temporary protected status or who have applied at least for that kind of protection.
Ms. JACKSON LEE. That is correct. Give me that number again, your ballpark again? Mine was about 100,000; your's is?
Mr. VIRTUE. It's going to be at least fewer than 100,000. I can get the actual figures for you.
Page 59 PREV PAGE TOP OF DOC Ms. JACKSON LEE. I can live with that and I will talk to the chairman.
Let me follow up about tracking those who leave or who leave the TPS status or it expires. You indicated a lack of information about where they are and what has happened. Why can't you track them? Is it a lack of resources that you does not enable you to be able to track those individuals?
Mr. VIRTUE. No, we can track the individuals and, in fact, those people who are in proceedings have simply had their proceedings administratively closed. We are in a position of recalendaring or moving to recalendar those proceedings in order to remove those folks from the United States.
The questions that were being asked were, how many people within this population have either voluntarily departed the United States or have been removed from the United States after TPS has expired. The reason I can't answer that is because we don't track our removals in terms of whether that person happened to have at one time been a beneficiary of TPS. So that is why it is difficult to answer that question. It is not a matter of being able to track the individual, but being able to match.
Ms. JACKSON LEE. In that category. Is that something that can be internally administered by the Service because we have an interest? I think it is an important response to whether Congress does something else or does not, the fact that you would know what happened to those particular categories?
Page 60 PREV PAGE TOP OF DOC Mr. VIRTUE. I am certainly not an expert on that but I believe, just in terms of the information systems requirements, it would require some changes in our deportable alien control system, the mechanism under which we track people being removed from the United States. We would have to add some codes there but I believe, based on my technical background, that could be done. We will look into that.
Ms. JACKSON LEE. Would you, please?
Mr. VIRTUE. Yes.
Ms. JACKSON LEE. I understood you to say that Congress helped to create fraud under the Immigration Reform and Control Act of 1986 by allowing applicants for the SAW, Special Agricultural Workers Program, to merely file an affidavit if no other documents were available and that confidentiality restrictions of the law also prevented the INS from pursuing possible fraud detected during the application process.
I might note, of course, the SAW Program responds to special American agricultural needs, waivers that people are even now seeking.
These particular restrictions of the law also prevented INS from pursuing possible fraud detected during the application process. Are you saying that Congress has made it more difficult; are you asking for legislative relief? What are you asking as it relates to that particular point or problem?
Mr. VIRTUE. Certainly I don't think Congress, in enacting the 1986 act, contemplated the circumstances. They certainly contemplated fraud because there are some provisions in the statute to address that, but some of the problems only came to light in the implementation. For example, the confidentiality provisions that restricted our ability to use the information beyond adjudicating the application and prosecuting someone for fraud combined with a 5-year restriction on our ability to rescind someone's permanent resident status have effectively created a statute of limitations for that fraud.
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What we would suggest is that in any future consideration of legalization programs or programs that provide for permanent resident status that issue be addressed, and in fact, we believe in NACARA, some of the most recent statutes would not create some of those problems that were created by IRCA. So we certainly have learned from some of those provisions.
Ms. JACKSON LEE. So you are not asking prospectively for any legislative assistance on this issue?
Mr. VIRTUE. No. To go back and change, for example, the requirements for eligibility for SAW or to give us the ability to look behind the applications that were filed in confidence would present some very difficult problems statutorily and with respect to those applicants having come forward.
Ms. JACKSON LEE. Mr. Chairman, I see the light. I have one more question.
Mr. SMITH. Sure.
Ms. JACKSON LEE. Let me fold my question into one. Are there SAW applicants or recipients of the SAW benefits here and not accounted for? That is a question I wanted to follow up but while you say in your testimony that INS has taken affirmative steps to prevent fraud, why hasn't INS taken steps to track the groups that remain after the expiration of their TPS?
Page 62 PREV PAGE TOP OF DOC I think we have answered that but I am wondering will you be able to come up with mechanisms that will sort of respond to the tracking issue? Is that something you can leave here now and go back and deal with administratively? I guess I wasn't clear on that.
Mr. VIRTUE. Yes, that is something we would have to look at administratively and come up with the mechanisms to specifically track the immigration status of those people granted temporary protected status after the expiration of that period.
Ms. JACKSON LEE. I want to be clear that it could be done. You are telling me there are SAW recipients that are here without any knowledge of where they are?
Mr. VIRTUE. No. The SAW situation is a difficult one and it is the one that presents the statute of limitations problems most pointedly for us. There are about a million people who were granted SAW status as of the date I had the figures for. The problem is the statute of limitations, the 5 years, has run for those folks.
The 5-year limitation ordinarily would not prevent us from placing a person into deportation proceedings who believe committed a deportable offense, but the confidentiality provisions under IRCA do prevent that. So SAW is a real problem for us. We are in a situation where we can't go back and rescind their status.
What we can do is deny those folks naturalization and to the extent they have been naturalized, go back and revoke naturalization, which we have sorted out a great number of the cases in the case files and have opened those for exactly that purpose.
Page 63 PREV PAGE TOP OF DOC Ms. JACKSON LEE. Thank you very much, Mr. Chairman.
I have no other questions. I just wanted to make sure Mr. Virtue did hear my earlier statements about the detainee in Texas.
Mr. VIRTUE. I did and we will provide that information as soon as possible.
Ms. JACKSON LEE. Thank you, Mr. Chairman.
Mr. SMITH. Thank you.
The gentleman from California, Mr. Gallegly, is recognized.
Mr. GALLEGLY. Thank you, Mr. Chairman.
Mr. Virtue, it is always good to see you here. I always seem to get a little dismayed by the time it gets down to my turn because there have been several questions asked and usually those questions create a little bit of dismay.
Your response to the chairman's questions as related to removalswe don't have any records of that and so onI guess that would be a pretty fair indication as to what the agency's priority is as it relates to removals, is that a fair assessment?
Mr. VIRTUE. Well, certainly our priority with respect to removals is with regard to criminal aliens. That is where we focus.
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Mr. GALLEGLY. But if someone files a fraudulent document, they wouldn't be considered a criminal?
Mr. VIRTUE. When I talk about criminal aliens, I am talking about people who have been convicted of fraud. Many of the individual applications of benefit fraud, the individual was never prosecuted simply because
Mr. GALLEGLY. Let us say of the hundreds of thousands that come here illegally or through fraudulent documentation, it is pretty safe to say that really isn't a priority for removal?
Mr. VIRTUE. Well, it certainly is a priority for the people who have been convicted. The question was how many of the people who were granted TPS have been subject to removal. I am simply not in a position to answer that because we don't track the removals.
Mr. GALLEGLY. But the question also related to fraud and you had no record of how many had been removed, so how can you say it is a priority if you don't keep a record of it?
Mr. VIRTUE. If the removal was actually based on an allegation in the deportation process with respect to fraud, then we do have that information and we can supply that for the subcommittee. In the typical case, that person would be removed on the basis that he or she was unlawfully in the United States and we wouldn't be able to track the fraud aspect of that.
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Mr. GALLEGLY. As it relates to the advertisements, this is not a new phenomenon, we have seen this for years in California and Tijuana. Newspapers are full of advertisements for false documentation and so on and attorneys to contact in the U.S. To your knowledge, have there been any attorneys prosecuted by Justice for advocating fraudulent documentation and so on? We have a law in this country now that states that providing fraudulent documents is subject to the same penalties as providing fraudulent currency?
Mr. VIRTUE. Yes, we have had a number of attorneys who have been prosecuted and convicted with respect to both document fraud and benefit fraud with the agency.
The question about whether the advertising itself can be prosecuted is one we will have to follow up on.
Mr. GALLEGLY. At your convenience, within the next four or 5 months or so, would you get us some informationI am not being facetious, I'm just trying to stay within your normal time framecould you get us documentation on approximately how many cases in the last year where attorneys have been prosecuted and what the results of those prosecutions are?
Mr. VIRTUE. We will do that.
Mr. GALLEGLY. Is it also not true that the INS believes that in a large percentage of the late amnesty cases, that there are fraudulent cases?
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Mr. VIRTUE. Yes.
Mr. GALLEGLY. You do believe that is the case?
Mr. VIRTUE. Yes.
Mr. GALLEGLY. I have no further questions.
Mr. SMITH. Thank you, Mr. Gallegly.
Mr. Virtue, there are no more questions. We appreciate your testimony today and we will look forward to the next time you are here as well.
Mr. VIRTUE. Thank you.
Mr. SMITH. We will now go to our second panel. If they will come forward, I will introduce them.
The second panel consists of: Mark Krikorian, Executive Director, Center for Immigration Studies; Daniel Stein, Executive Director, The Federation for American Immigration Reform; and Elisa Massomino, Director, Lawyers Committee for Human Rights. All three of you have testified before, although not on this particular subject. We welcome you.
We are going to see if we can get through your testimony before we get to consideration of the private bills. We will take about 15 minutes to do that and we will get to your questions, I hope, immediately after.
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Mr. Krikorian, if you will begin?
STATEMENT OF MARK KRIKORIAN, EXECUTIVE DIRECTOR, CENTER FOR IMMIGRATION STUDIES
Mr. KRIKORIAN. Thank you, Congressman.
My name is Mark Krikorian. I am Executive Director of the Center for Immigration Studies.
As has been discussed today, President Clinton granted protected status for 18 months to an estimated 150,000 Hondurans and Nicaraguans in December of last year in response to the devastation reeked on those countries by Hurricane Mitch.
In my comments, I wanted to briefly look at past grants of temporary protection, which have taken various forms, to see if there is anything they can teach us about what this idea of safe haven means in the real world.
The concept of temporary protection has been debated for some time. In effect, it is a limited grant of refugee status offering foreigners who otherwise wouldn't be allowed to remain in the United States a temporary sanctuary until the emergency in their home country passes.
The issue was debated and voted on repeatedly in Congress in the 1980's and was finally enacted in 1990 as part of the Immigration Act in the form that it exists now, temporary protected status, which allows the Attorney General to allow illegal aliens or nonimmigrants whose visas are to expire to remain if there is an harmed conflict or natural disaster in their country.
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Before 1990, there was no statutory basis for permitting illegal aliens or nonimmigrants whose visas were to expire to remain in the United States other than requesting asylum, but as early as 1960, the Executive Branch created something called extended voluntary departure, later christened deferred enforced departure for aliens from specific countries as a form of blanket relief from deportation. In effect, the Attorney General exercised his prosecutory discretion not to remove the nationals of these particular countries.
Before the existence of the current TPS system, people from a number of countries in Latin America, Eastern Europe, Africa and Southeast Asia were granted extended voluntary departure for varying periods of time, but in 1990, the chief impetus behind the 1990 Immigration Act's TPS provision was the desire to create some kind of regularized vehicle to avoid having to deport thousands of illegal aliens from El Salvador.
In fact, of the two sections relating to TPS in the Immigration Act, one related to the general institution of TPS and the other specifically designated Salvadorans as eligible for TPS. Almost 200,000 illegal aliens from that country were able to avoid deportation for 18 months but when their TPS expired in 1992, the administration still choose not to deport them and simply reverted to the old practice of EVD, though with the purely cosmetic change of changing the name of this ad hoc status from extended voluntary departure to deferred enforced departure.
Though DED for Salvadorans in effect ended in 1996, the settlement of the American Baptist Church's case allows Salvadorans who were protected under TPS or DED to reapply for asylum and in addition, NACARA, as mentioned earlier today, allows Salvadorans to apply for cancellation of removal under the old pre-1996 rules.
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Mr. Chairman, as you know, the administration is considering a blanket finding of extreme hardship for these people would in effect amount to an unlegislated amnesty.
The increasing likelihood that these temporarily protected Salvadorans will end up here permanently underlines the concerns a lot of people have regarding humanitarian deferrals of deportation like TPS. The fallout from Hurricane Mitch in Central America is precisely the kind of natural disaster TPS was intended to address. If the up to 90,000 Hondurans who received this status actually go home after their TPS expires, then it may well have served its purpose. As we heard today, the Nicaraguans clearly are not going to be going back because they have already received amnesty under NACARA.
Temporary protection would simply be a lie if it were used as a back door to permanent immigration or a fig leaf to cover political unwillingness to enforce the law. Most recent grants of TPS under the current TPS system have concerned very small numbers of people8,000 Liberians is the largest of these small grants of TPS down to a mere 200 people from Rwanda.
When such small numbers of people are involved, the consequences of failure are relatively small, even if all of the 20,000 or 25,000 TPS recipients, excluding the large grants of Hondurans and Salvadorans and Nicaraguans were to remain, it would not have that much practical effect. In fact, the smaller groups of people who have received temporary protection have gotten amnesty in the pastAfghans, Ethiopians, Poles, et cetera.
It is clear that every previous large grant of temporary status has resulted in amnesty, confirming the truism that there is nothing as permanent as a temporary refugee. We saw that with regard to the Chinese who, after being granted DED, ultimately were given green cards under the Chinese Student Protection Act.
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Experience suggests that the grant of TPS to Hondurans and Nicaraguans is unlikely to be any different and that they probably will end up remaining. It would seem therefore that since every major grant of TPS or EVD has resulted in amnesty, it would be appropriate if the Congress and the administration consider it advisable to grant amnesty to a large number of illegal aliens, to call that amnesty by its proper name.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Krikorian follows:]
PREPARED STATEMENT OF MARK KRIKORIAN, EXECUTIVE DIRECTOR, CENTER FOR IMMIGRATION STUDIES
Good morning Mr. Chairman and members of the subcommittee. My name is Mark Krikorian, and I am executive director of the Center for Immigration Studies, a non-profit, non-partisan research organization which examines and critiques the impact of immigration on the United States. The Center receives no federal funds.
President Clinton granted Temporary Protected Status (TPS) for 18 months to an estimated 90,000 Hondurans and 60,000 Nicaraguans in December of last year, in response to the devastation wreaked on those countries by Hurricane Mitch. (About 500,00 Salvadorans and Guatemalans did not receive TPS, but deportations of these groups were suspended until next week, March 8). In my comments, I want to briefly examine past grants of temporary protection, which have taken various forms, for whatever lessons they might teach us about how this arrangement works in the real world.
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The concept of temporary protection, or safe haven, has been debated for some time. In effect, it is a limited grant of refugee status, offering foreigners who would not otherwise be allowed to remain in the United States limited sanctuary until an emergency in their home country passes.
Legislation to create a formal process for temporary protection was debated and voted on in Congress at various points in the late 1980s, but was not enacted into law until Temporary Protected Status was included in the Immigration Act of 1990.
The law empowers the Attorney General to grant Temporary Protected Status for a number of reasons. The relevant section of the Immigration and Nationality Act reads:
The Attorney General, after consultation with appropriate agencies of the Government, may designate any foreign state (or any part of such foreign state) under this subsection only if
(A) the Attorney General finds that there is an ongoing armed conflict within the state and, due to such conflict, requiring the return of aliens who are nationals of that state to that state (or to the part of the state) would pose a serious threat to their personal safety;
(B) the Attorney General finds that
(i) there has been an earthquake, flood, drought, epidemic, or other environmental disaster in the state resulting in a substantial, but temporary, disruption of living conditions in the area affected,
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(ii) the foreign state is unable, temporarily, to handle adequately the return to the state of aliens who are nationals of the state, and (iii) the foreign state officially has requested designation under this subparagraph; or
(C) the Attorney General finds that there exist extraordinary and temporary conditions in the foreign state that prevent aliens who are nationals of the state from returning to the state in safety, unless the Attorney General finds that permitting the aliens to remain temporarily in the United States is contrary to the national interest of the United States.
(Interestingly, this last provision puts the Attorney General in the perverse position of determining that it is in the national interest to allow illegal aliens to reside in the United States.)
Prior to the enactment of TPS in 1990, there was no statutory basis for permitting illegal aliens, or nonimmigrants whose visas were to expire, to remain in the United States without requesting asylum. But as early as 1960, the executive branch created ''Extended Voluntary Departure'' (later rechristened ''Deferred Enforced Departure'') for aliens from specific countries as a temporary grant of blanket relief from deportation for nationals of certain countries who feared returning to their homelands. In effect, EVD was an exercise of prosecutorial discretion by the Attorney General in deciding not to force the departure of nationals of a certain country.
Nationals from the following countries received EVD during the years listed:
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Dominican Republic: 19661978
Page 74 PREV PAGE TOP OF DOCIran: 1979
The chief impetus behind the 1990 Immigration Act's TPS provision was the desire to create a statutory vehicle allowing the deferral of deportation for thousands of illegal aliens from El Salvador. In fact, section 303 of the Act specifically designated Salvadorans for TPS. Almost 200,000 illegals were thus able to avoid deportation for a period of 18 months. However, when TPS expired in 1992, the administration still chose not to deport them and simply reverted to the old practice of EVD, though with the purely cosmetic change of changing the name of this ad hoc status from Extended Voluntary Departure to Deferred Enforced Departure (DED).
Though DED for Salvadorans ended in 1996, the settlement of the American Baptist Churches case allows Salvadorans protected under TPS and DED to re-apply for asylum (on the grounds that their previous asylum applications had not been given proper consideration for political reasons). In addition, the Nicaraguan Adjustment and Central American Relief Act of 1997 (NACARA) allows Salvadorans to apply for cancellation of removal under the pre-1996 rules, and the Clinton Administration, as you of course know, has announced that it is considering a blanket finding of ''extreme hardship'' for Salvadorans applying for green cards under this provision, resulting in what amounts to an unlegislated amnesty.
Page 75 PREV PAGE TOP OF DOC The increasing likelihood that the ''temporarily'' protected Salvadorans will end up staying permanently underlines the concerns many people have regarding humanitarian deferrals of deportation such as TPS. The fallout from Hurricane Mitch in Central America is precisely the kind of natural disaster TPS was intended to address, and if the 90,000 Hondurans leave after the expiration of their TPS status, then it may well serve its purpose (the Nicaraguans have already received amnesty under NACARA). But temporary protection would simply be a lie if it were used as a backdoor to permanent immigration or as a fig leaf to cover political unwillingness to enforce the law.
Most recent grants of TPS have, of course, covered very small numbers of peoplethe 1990 law creating this status requires the Attorney General to estimate how many people would benefit, and however inaccurate the counts, they at least suggest how small the numbers are in many cases. Some of the countries and numbers who have been covered by TPS at some point are:
Page 76 PREV PAGE TOP OF DOCPersian Gulf Evacuees (Palestinians in Kuwait who helped Americans
during the Gulf War): 2,200
Sierra Leone: 4,000
When such small numbers of people are involved, the consequences of failure are smalleven if all of the 20,000-plus people listed above turned their ''temporary'' stays into permanent ones, it wouldn't have much practical effect. And, in fact, many of these smaller groups of TPS recipients have been amnestied; more than 5,000 people from Afghanistan, Ethiopia, Poland, and Uganda who had EVD were amnestied in 198990. Likewise, there was a significant effort last year to enact legislation giving TPS Liberians permanent residency; Rep. Patrick Kennedy of Rhode Island introduced a bill to that effect, saying that ''after seven years of providing them this special protected status we can't pull the rug out from under them.'' The Liberian case also demonstrates how TPS is almost routinely extendedLiberians first received TPS in 1991, and it has been periodically extended. A ''final'' extension of TPS granted through September of last year was followed by yet another one-year extension.
As I said, these examples involve small numbers. But when larger numbers are at issue, it becomes incumbent upon policymakers to consider the real-world consequences of ''temporary'' protection. And experience has shown that in every case where large numbers of people have been granted ''temporary'' protection, they have eventually received permanent status. There has never been a grant of temporary protection that didn't turn into an amnesty, confirming the observation that ''There's nothing as permanent as a temporary refugee.''
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In the 1960s, it was Cubans, thousands of whom fled Castro's regime during the 1960s. All were given temporary protection until Congress passed the Cuban Protection Act in 1966, which granted them, and thousands to follow, the right to remain permanently.
In the 1970s, thousands fled the communist takeover of Indochina, and they too were granted temporary protection until Congress in 1977 made their status permanent.
More recently, as a result of the 1989 government crackdown on democracy activists in Communist China, President Bush issued Executive Order 12711 in April 1990 giving an estimated 80,000 nationals of the PRC temporary protection from deportation. Then, in 1992, the Chinese Student Protection Act made this ''temporary'' protection permanent by allowing Chinese who entered before the issuance of the executive order to apply for a green card. Though students were supposed to be the beneficiaries of this legislation, a large numberperhaps the majorityof those receiving green cards were actually illegal aliens from the province of Fujian, smuggled into the United States by ''snakehead'' gangs.
Last year's grant of TPS to Hondurans and Nicaraguans is unlikely to be any differenttheir TPS status is likely to be extended, perhaps replaced by DED, until such time as the aliens in question have either become permanent residents through some other means or until Congress passes legislation legalizing their status. Few, if any, Hondurans or Nicaraguans currently covered by TPS will ever depart voluntarily or be removed.
Temporary protection may be warranted for foreign policy and humanitarian reasons, and the formal articulation of a TPS mechanism for admitting small numbers of aliens for short periods in emergency situations is better than the ad hoc methods employed before 1990. But it is clear that the application of temporary protection to large numbers of people has never been, and probably can never be, successfuli.e., truly temporary. Every major grant of temporary protection, whatever the label, has been a prelude to amnesty; therefore, if Congress or the Administration consider it advisable to grant an amnesty to illegal aliens from a certain country, simple honesty demands that the amnesty be called by its proper name.
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Mr. SMITH. Thank you, Mr. Krikorian.
STATEMENT OF DANIEL STEIN, EXECUTIVE DIRECTOR, THE FEDERATION FOR AMERICAN IMMIGRATION REFORM
Mr. STEIN. Good morning, Mr. Chairman.
My name is Dan Stein. I am Executive Director The Federation for American Immigration Reform. FAIR is a national organization working for improved immigration law enforcement and dramatic reductions in the overall levels for an immigration policy that we believe will best serve all Americans in the future.
Immigration numbers do matter when we talk about the numbers for TPS. Most Americans don't appreciate the fact that immigration rates at 1 million a year, legal and illegal, if they continue we will have a U.S. population of close to 400 million by 2050400 million people is a tremendous increase in our population. So even a small number of people under a program of this kind can produce big numbers downstream.
We certainly want to associate ourselves with the remarks of Representative Jackson Lee in discussing the questions of TPS and ensuring repatriation. The great dilemma that these issues imply means that there is a linkage between TPS and our foreign policy. How we help to rebuild those countries and how we can ensure repatriation needs to be married with some form of incentives and encouragement that will allow people to find a reason to go home. In the end, these are inextricably linked issues.
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TPS involves very compelling issues. We want to concede that whenever there is a grant of TPS or discussion of it, it is based on concessions of strong humanitarian motives. We have supported strong relief efforts from the United States and internationally to help rebuild Honduras and Nicaragua as a result of Hurricane Mitch.
Nevertheless, the hearing today is really ultimately about whether this Nation has the political will to try to restore integrity to the ideal that non-refugee aliens seeking temporary succor here will keep up their side of the bargain and return home when it is timely and proper to do so.
In the end, we believe that the Immigration Service does not have a present intent to remove aliens who are here illegally, unless they have had some significant involvement with the criminal justice system. The 1999 Enforcement Strategy Memo that has come out from the INS in the last day or two suggests that the Immigration Service is virtually abandoning its mission and role as an enforcement agency for noncriminal aliens in the interior. Those numbers now estimated at 5 million are likely to increase dramatically, and if the Service is telling us that they are going to actually go out and find TPS overstays or visa overstays or those who enter without inspection, their enforcement strategy does not reflect that priority.
That means that there may be a structural problem with TPS. By the way, we opposed TPS as a statutory provision from the outset because we viewed it a temptation for permanent status, knowing that it would produce demands down the line.
If you extend TPS to aliens who are here illegally, by definition you are asking a person who is here without notice, without legal status to expose themselves to the U.S. Government. Obviously then you have problems when the time comes to terminate that status on whether you can send them out.
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In the end, we think TPS should only be extended to people who are here legally in the normal course of affairs, so that when that status expires, they have an established equity which does not exist for those who admit their illegal status.
Lastly, obviously you are sending important signals when you grant TPS. We see now a massive surge of people coming from Central America who are misinterpreting the intent of this provision.
We believe that to end this cycle, Congress needs to speak with one voice on the importance of ending mass illegal immigration and the importance of equipping the INS under professional committed leadership to handle the large scale apprehensions and deportations required to restore integrity to the rule of law.
Secondly, those who do receive TPS should not be given any further opportunity to file claims for relief later under any provision of U.S. law unless they marry a U.S. citizen.
Also, as I said, TPS recipients should have been here legally before they are able to apply. Anyone granted permanent resident status as a result of TPS should do so only within annual numerical limitations. Lobbying by foreign governments and other entities for extended status and new adjustment provisions all goes on and the cost is free in their mind somehow if it doesn't have to come under the existing immigration program.
Remember, TPS people are not refugees, they are not asylees; they are people asking for a temporary stay of deportation until it is safe to go home. If they are allowed to jump the line, jump the queue ahead of millions of people waiting in lineoften at great cost to the communities that have to educate them and provide jobs and everything elsethere ought to be some counterbalancing downstream in the annual numbers that are allocated to compensate for it.
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We believe the present efforts of the administration on suspension of deportation for Central Americans may subvert the intent of Congress by broadening the suspension of deportation beyond its original scope by granting a blanket amnesty by presuming a burden of hardship. Obviously, this will be interpreted as a rolling amnesty.
The administration has got to do something about the hundreds of thousands of people who are coming here right now from Central America. Instead of staring blankly and saying we can't do anything, it needs to put up short-term detention facilities along the border and invoke its emergency authority that Congress has so graciously provided.
The problem, Mr. Chairman, is ultimately not with the law. It is with how the law is being implemented.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Stein follows:]
PREPARED STATEMENT OF DANIEL STEIN, EXECUTIVE DIRECTOR, THE FEDERATION FOR AMERICAN IMMIGRATION REFORM
This statement addresses the subjects of Temporary Protected Status (Immigration and Nationality Act section 244) and fraud associated with amnesty for illegal aliens adopted in the 1986 Immigration Reform and Control Act.
Page 82 PREV PAGE TOP OF DOCINTRODUCTION
Mr. Chairman, I appreciate the opportunity to offer my organization's perspective on a variety of problems connected with past immigration amnesties, class-based humanitarian parole and broad, ''temporary'' relief programs such as Temporary Protected Status (TPS) [Immigration and Nationality Act §244).
My name is Dan Stein, and I am executive director of FAIR. We are a national public interest organization with over 70,000 members across the country working to inform the American people about the costs and consequence of today's mass and poorly-regulated immigration. FAIR does not receive any federal grants, contracts or subcontracts. 1999 will see the 20th anniversary of FAIR's founding.
Mr. Chairman, we consider today's mass immigration to be contrary to the national interest. Our agenda includes working for:
a comprehensive immigration ''time-out,''
immigration laws that will serve the long-term national interest, and
policies that will help stem the tide of illegal immigration.
FAIR seeks an end to mass immigration and a return to more traditional levels of no higher than 200,000 persons a year based on an objective assessment of our national need. FAIR believes that immigration levels should not fuel U.S. population growth, and that they should not compound or render more difficult U.S. priority goals in education, social spending, the stability of the American middle class, or current environmental and ecological objectives.
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Mr. Chairman, this hearing is ultimately about whether this nation has the political will to try to restore integrity to the ideal that non-refugee aliens seeking temporary succor will keep up their side of the bargain and return home when it's timely and proper to do so.
It is about a contract. A contract between the voters of this nation and the residents of other nations who claim to seek some form of temporary residence here. It is about whether they will be held to that bargain and return home when the event(s) that gave rise to the initial request for relief have been resolved.
Mr. Chairman, a fresh look by Congress at the operation of amnesties and temporary protection for aliens residing in our country is both timely and needed. We have seen the 1986 Immigration Reform and Control Act (IRCA) amnestywhich was to have been a one-of-its-kind eventrepeated in the 1997 Nicaraguan and Central American Relief Act (NACARA) legislation. That second amnesty also included a form of ''rolling amnesty'' of case-by-case removal of deportation on the basis of hardship for other Central Americans. This rolling amnesty is now the target of an effort by the Administration to make it into a full-blown amnesty through an across-the-board presumption of hardship for these resident aliens. We commend your efforts, Mr. Chairman, to head off this effort of the Administration to subvert the intent of Congress when it adopted the NACARA legislation.
These actions coincide with a new TPS designation following the devastation of Hurricane Mitch for Nicaraguans and Salvadorans residing here accompanied by a suspension of deportation of criminal aliens to Central America and agitation by interest groups pressuring for a broadening of TPS to include other groups.
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What all these recent and on-going policy responses have in common is that efforts to administer aspects of our immigration law that are designed to reflect the humanitarian concerns of the American people are being used as a back door for illegal immigration into the United States. The American public supports compassionate policies, but it strongly opposes actions by foreigners that take advantage of our concern for our foreign neighbors.
TEMPORARY SHOULD MEAN TEMPORARY. We believe the ability and willingness of our country to provide much-needed humanitarian protection for endangered persons abroad depends upon a well-structured program that a) works as intended, and b) returns most humanitarian parolees, etc., home when the danger has passed. This ideal goal cannot be achieved when advocacy groups merely employ the subterfuge of generalized political instability, dramatic economic slowdowns or short-term weather-related crises as a means of queue-jumping for the preferred nationals de jour.
For the past twenty years, we have seen these programs transformed into backdoor immigration programs that are manipulated by the lobbying of foreign governments, ethnic lobbies and our own political leadership alike. Each special program that provides short-term relief has been followed by persistent demands for similar treatment by other groups and nationalities, not necessarily made up of persons in the same circumstances. It has now been politicized beyond recognition, and certainly no longer deserves the support of the general public.
Both issues todayclass-based parole protection and large-scale amnestieshave their genesis in the same phenomenon: how do we remove large numbers of non-citizens who have been in the country in a quasi-legal or illegal status for an extended period of time. It all began with the expansion of Executive Branch discretion in the use (abuse, perhaps) of parole.
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In fact, it all began with the Cuban crises in the early and mid-1960's. The flood of Cubans seeking to avoid the rigors and controls of the Castro regime were paroled in by the Attorney General. When Congress concluded that the individualized grant of parole had been abandoned in favor of ''status relief,'' it intervened with the Cuban Adjustment Act in 1966 that sought to provide some statutory basis for parole.
Since then, there has been a constant tension between the congressional desire to contain parole and other, sometimes self-asserted, prerogatives of the Attorney General to admit inadmissible aliens and the Executive Branch's willingness to expand its discretionary powers to waive entry controls when the politics of the moment dictate its feasibility. Large numbers of Mexican nationals enter illegally without inspection. Rather than remove them through aggressive interior enforcement, Congress, at Executive Branch urging, enacted an amnesty program for over 3 million formerly illegal aliens; a majority of whom were Mexican nationals. Other groups of non-refugees and asylees, notably Salvadorans, Nicaraguans, Haitians, Hondurans and others, have lately been paroled into the country for short-term reasons. Both phenomena send a signal to the home country that a ''demand at the gate,'' or a successful illegal entry will eventually produce a coveted green card. Both foster more migration pressure on Americans and legal residents where they settle; both produce pressure on Congress; both produce pressure on the INS. These mass parole programs in particular, sanctioned by the Attorney General, in turn produce repeated clamor for legislative solutions to let them stay permanently and petition for additional relatives.
In virtually every case, the U.S. has shown a complete absence of resolve, a complete absence of commitment to encouraging these aliens to return home and rebuild their nations. Sometimes, for entirely bureaucratic or PR-related reasons, the INS itself works to help find ways to get them to stay. The cumulative effects on the INS have grown until, today, it has collapsed under pressures in part of its own making.
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IN A NUTSHELL: THE CORE PROBLEMS
Although immigration policy challenges are all unique, there have been a series of recurring problems that have emerged since 1975.
''TEMPORARY'' ONLY MEANS DELAYED PERMANENT RESIDENCE. We have had a variety of humanitarian parole programs for Cubans, Haitians, Nicaraguans, Salvadorans, Poles, Ethiopians, Russians, Liberians, the list goes on. In virtually every case, our government has failed to prevent the program from becoming a permanent immigration program. The government willfully refuses to find and return those given a temporary reprieve from deportation once the relief period has ended.
THE PUBLIC IS MISLEAD, LIED-TO, CAJOLED AND TAXED. The general public knows and understands very little of how these sorts of programs are initiated and carried out. The costs are borne by state and local taxpayers who have been led to believe the humanitarian admissions are not short-term protection. Costs and impacts on public institutions such as schools, infrastructure, jobs, and housing are sprung on unsuspecting communities which are never given any real say in the choices and decisions that lead to these mass parole admissions. Local community officials, believing they have no say or control over the numbers of parolees and their manner of entry, are reduced to making demands on the Federal Government for reparations. Other politicians, seeking the future votes of these new residents, pander to their narrow interests at the expense of the larger community's interests and wishes.
THE PROGRAMS ARE FRAUD-RIDDEN, TENDING TO UNDERMINE PUBLIC CONFIDENCE IN THE COMPETENCE AND RELIABILITY OF THE GOVERNMENT. THE INS ITSELF LACKS THE MEANS, CAPACITY, WISDOM AND FORESIGHT TO COMMIT TO THE TASK OF CAREFULLY SCRUTINIZING THE FACTS ALLEGED IN CLAIMS FOR SPECIAL RELIEF. The estimated 70 percent fraud rate for the 1986 agricultural worker amnesty is the all-time record for an immigration relief program that went wrong. The 1.1 million persons who received amnesty for past field work is at least three times the number that should have qualified under any plausible estimate of the size of the agricultural workforce during the qualifying years specified by the 1986 Immigration Reform and Control Act. An extreme case, perhaps, but symptomatic of an INS that is incapable of scrutinizing the facts underlying applications for relief. Fraud rates vary from program to program, but class-based relief persistently creates a ''numbers crisis'' in the agency that invites fraud and abuse.
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ONCE THE DANGER OR CATASTROPHE HAS SUBSIDED, FOREIGN GOVERNMENTS THEMSELVES PUSH TO PREVENT THEIR OWN NATIONALS FROM HAVING TO RETURN HOME, APPARENTLY BELIEVING THAT REMITTANCES SENT HOME ARE A BETTER FORM OF FOREIGN AID THAN SECURING THE RETURN OF WORKERS EXPERIENCED IN THE U.S. ECONOMY. THEY HAVE SHOWN NO QUALMS ABOUT EXPLOITING THESE HUMANITARIAN RELIEF PROGRAMS TO FURTHER PARTICULAR ECONOMIC, SOCIAL OR POLITICAL INTERESTS. Programs such as the mass grant of Extended Voluntary Departure, and later the statutory grant of Temporary Protected Status (and even later Deferred Enforced Departure) to, for example, Salvadorans has been transformed into a program to provide hard currency and remittances to an admittedly struggling economy. The leaders of these governments, invited by INA §244(b)(1)(B)(iii) to request TPS designation for their nationals, are often found in Washington lobbying the President and the Congress for extensions and permanent adjustments for their nationals in order to prevent their return. The desire of a foreign government to prevent the return of its own nationalsnow routinely done on a mass basis involving hundreds of thousands of young, energetic foreignersis an extraordinary evolution in international socio-cultural affairs; arguably it is one that ill-serves the long-term national economic interests of these sending nations.
Our laws should not reward illegal immigrants to the United States regardless of the political or natural upheavals in their homelands. Otherwise, experience shows that we will encourage further illegal immigration. By now, we should have learned from experience that TPS is misnamedwhat we offer as ''temporary'' protection is most often seen by the aliens residing illegally in the United States as a foot in the door to legal permanent residence. They are happy to accept our offer of humanitarian concern, but they have no intention of departing the United States when TPS status expires.
Page 88 PREV PAGE TOP OF DOC It should be apparent from any close focus on the disparity between the intent of our policies and the practical effects that we can see, that this gap is eroding deterrence of our immigration laws. Congress needs to correct the balance between compassionate policies and protecting the public against uninvited and unwanted illegal immigrants. The American public needs to be reassured that it is not being taken advantage of by foreigners seeking greater economic opportunity through the opening of our hearts to victims of political or natural disasters.
TEMPORARY PROTECTED STATUS AND AMNESTIES
The interrelationship between the TPS status enacted in 1990 and amnesty for aliens residing illegally in the United States unfortunately is clear. That link was unmistakably established in the debate surrounding treatment of natives of El Salvador who were specifically designated for TPS status in the 1990 Immigration Act. These aliens, who for the most part entered the country illegally in the 1980s, and were granted legal temporary protection and work permits as a result of the TPS designation, never went home after political stability was reestablished in their homeland. The fact that they had been covered by TPSand later by Deferred Enforcement of Departureand during this period had put down roots, had acquired U.S.-born children, had been legally working and paying taxes was cited as a reason that they should be incorporated into our society rather than forced to leave.
Mr. Chairman, the issue involved in both temporary protection and amnesty is the compassion of the American public for foreigners in out midst facing hardship if they must return to their homelands. We should be very clear that we are not discussing a situation where we have international obligations such as that under the Refugee Convention. If these persons in the United States have a well-founded fear of persecution they qualify for asylum under INA §208. Our law takes care of these cases without any need for temporary protection. We should also be clear that the vast majority of persons who have benefitted from TPS status are not people who are caught in the United States on a visit or as students when a revolution sweeps their homeland, that is legal temporary visitors. The vast majority of beneficiaries have been aliens who illegally entered the country. They are persons who came here seeking permanent residence, not a temporary respite from unsettled conditions at home.
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Mr. Chairman, the compassion of the American people for foreigners confronting political or natural disasters is a precious commodity. It is a resource that is not limitless. It should not be dissipated in situations that are justified only by convenience for the aliens or the foreign government or even the U.S. government. The test must be the support of the U.S. public.
It is the view of FAIR that the U.S. public does not support the expenditure of its compassion on aliens who entered this country illegally seeking to acquire residence through the backdoor. Unwise expenditure of the American public's compassion will surely backfire and it will become harder to obtain public support of international humanitarian policies of our government. At the same time, we recognize that it becomes harder to remove illegal aliens the longer that they have avoided apprehension and removal and have become entrenched in our communities.
TEMPORARY PROTECTED STATUS
The term ''temporary'' in TPS is a misnomer. While TPS status has expired for nationals of some countries, such as Lebanese, who benefitted from that status between 1991 and 1993, more of the beneficiaries have never left temporary protectionlike Liberians who have had TPS since 1991or have been granted permanent residence through an amnesty, like the Salvadorans. To our knowledge, Mr. Chairman, there is no convincing evidence that any of the beneficiaries of TPS who were in illegal status when TPS was adopted ever left the United States voluntarily after the end of the status, or were deported by the INS for refusal to leave. That fact underscores the fact that while we may think of TPS as a temporary measure, that isn't what the illegal alien beneficiaries have in mind. Therefore, all we are doing when we extend TPS protection to illegal aliens is assist them in their effort to abuse our hospitality and our laws.
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In addition to being a misleading term, TPS has the effect of attracting further illegal immigration from countries whose nationals have been designated for TPS. This is a problem that was foreseen before TPS was ever adapted. For example, FAIR made clear in the hearings of 1987 on adoption of a ''Safehaven'' provision that any form of legal temporary protection from deportation for aliens illegally in the United States would act as a magnet for further illegal immigration. In theory, TPS should not act as a magnet for further illegal immigration, because it applies only to persons in the United States at the time that the TPS designation was made. In other words, persons from the beneficiary country who are outside the United States on that date are not eligible for the benefit if they subsequently arrive here. But, that theoretical distinction has not worked in practice. In the 1994 debate over making a TPS designation for Haitians in the United States, Congressman Porter Gross (R-Fla.) demonstrated his understanding of the reality of TPS when he said ''TPS will cause a flood of Haitians to the U.S.''
Somehow, however, the Administration appears to have been taken by surprise to learn that the designation of TPS status for Salvadorans and Nicaraguans in the United States last December when Hurricane Mitch devastated their homelands was taken as a signal by thousands of their countrymen that the United States would issue work permits to them if they could get to our country. Actually, this viewthat the Central Americans are confused by the terms of the TPS status and will halt their migration to the United States once the fact that they are not eligible is explained to themis hopelessly naive. In the current situation, what the Central Americans clearly understand is that once the United States has signalled its intention to extend its compassion to persons in the United States from a given country, the United States is going to be more hard-pressed to deport anyone from that country. In addition, the TPS designation opens up a Pandora's box of possibilities for later arriving illegal immigrants to fraudulently claim that they arrived in the United States before the TPS designation. Experience with the 1986 amnesty for illegal aliens, which also contained eligibility cut-off dates, clearly established that any system that depends on date-of-arrival documentation will be rapidly corrupted by false documentation.
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The current flood of Central Americans seeking to illegally enter the United States can better be dealt with if we understand that these persons are knowingly attempting to gain a foothold in the United States for the purpose of permanent residence. They are not seeking temporary protection. The other relevant consideration in the minds of the Central Americans is that in 1986 we adopted the first amnesty for established illegal aliensgranting legal status to around three millionfollowed by the amnesty for illegal aliens from Nicaragua and El Salvador last year. To them, the emerging pattern suggests that the odds of eventually receiving the same benefit are increasing. Following the magnet of better-paying jobs and better prospects for the long-term future that draw illegal immigrants is a rational decision on their part that will continue to draw increasing numbers of illegal entrants until such time as we adopt measures that change the odds and make it a more rational decision to stay home.
LEGISLATIVE CORRECTION FOR TPS
Our understanding of the underlying problems with TPS statuscompassion of the American public and illegal alien entrenchment over timelead us to conclude that TPS must be narrowed in scope. We should provide temporary protection only to persons who entered that United Sates legally and were in legal status at the time that the conditions in their homeland changed and led to adoption of TPS. To fail to adopt this corrective measure risks undermining the American public's support for a compassionate protection policy for the truly needy. Americans are already tired of their compassion being abused.
The absence of such a limitation assures that illegal alien beneficiaries of TPS will remain longer in the United Sates and generates greater pressures for the adoption of an amnesty on their behalf. Removal of TPS coverage for illegal aliens would also go a long way toward ending the magnet effect that attracts more illegal immigration from countries covered by TPS.
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RESPONDING TO MASS ILLEGAL IMMIGRATION
The Administration's glazed stare at thousands of Central American entering illegally across the border from Mexico, as if it didn't know what was happening or what to do about it, is disingenuous. The Administration encountered an early, similar test of its handling of illegal migration when presidential candidate Bill Clinton subsequently was elected after he endorsed a kid-glove approach to illegal entrants from Cuba. Perceptions that the new Administration wouldn't be able to say ''no'' led to a flood of Cuban and Haitian rafters and boat people. Only after tens of thousands had arrived and sought ''temporary'' protection did the Administration learn that to stabilize the situation it had to adopt a firm policy that denied entry to illegal migrants. It had to open up detention camps at the Guantanamo naval base to accomplish that objective. And it worked.
Of course, the Clinton Administration should have understood the need for that firm response from the outset of the crisis from studying the experience in the early 1980s with a similar flow of illegal migrants from Central American. That flow, too, was not stanched until temporary detention camps were opened near the border to provide shelter but to deny the illegal entrants access to the U.S. job market. The flow of illegal aliens from Central America dried up almost overnight.
Clearly the lessons of the early 1980s with Central American illegal migration and the early 1990s with illegal Caribbean migration are applicable today to the new Central American flow. The opening up of temporary detention facilities along the border should be even easier to accomplish today than it was in the 1980s. Since the time of the Cuban-Haitian boat people surge, the Administration has been developing, refining, and testing contingency plans for immigration emergencies. All that is necessary now is for the Administration to acknowledge that those measures are needed to deal with the present situation and to implement them. FAIR calls on the Administration to immediately declare an immigration emergency and to stem the flow of illegal immigration from Central America by opening new detention facilities along the U.S.-Mexican border.
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THE FLAW IN AMNESTY PROVISIONS
An amnesty was adopted in the 1986 Immigration Reform and Control Act (IRCA) because illegal immigration had so gotten out of hand; the estimated number of illegal aliens was in the millions, and the idea of identifying and removing such a large number had become a daunting prospect. In addition, special interests, especially seasonal crop agricultural interests, claimed to need the illegal work force that would have been deported. Support for the amnesty was generated by the argument that it would be a one-time eventnever to be repeatedbecause illegal aliens would cease coming once the employer sanctions were adopted to effectively deny jobs to illegal aliens.
We know now that the IRCA employer sanctions were unwise by the rapid rise of an illegal trade in false identity documents. Not only did the new system not work, illegal immigration began to increase after an initial hiatus caused by the perception of a more hostile environment of illegal aliens. Today the illegal alien population vastly exceeds the one in 1986.
Studies of the IRCA legalization program document wide-scale fraudulent efforts to benefit from the amnesty. Aliens could prove residence in the United States since before 1992 with documents that could easily be falsified, such as payroll receipts. Similarly, work in agricultural labor, the qualifying standard that required less prior length of stay in the United States, could be documented with letters or payroll receipts. The fact that there was any effort to screen the beneficiariesundermined as it was by the ready availability of false documents to allow the alien to cheat the screening mechanismis testimony to the dedication and the professionalism of the INS career staff.
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As of May 12, 1991, the INS had received 1,760,943 applications under the general amnesty and 1,274,228 applications under the agricultural worker provision. As of September 1996, 2.7 million illegal aliens had been adjusted to legal residence, 1.6 million by the general amnesty and 1.1 million by the agriculture worker amnesty. The more than 300,000 applications by persons identifying themselves as illegal aliens who did not receive the amnesty must have been denied on the basis of fraud or otherwise failed to pursue their application. The fraud was major (with a non-conferral for nearly 168,000, or over 10 percent) in the general amnesty and was far greater in the agricultural worker program (with a non-conferral of amnesty for over 182,000 or nearly 17 percent). Independent studies document that these numbers of fraudulent applications were only the tip of the iceberg.
This fraud on the American public was facilitated by the withholding of adequate investigatory staff to screen applicants for eligibility. A standard of ''just and reasonable inference'' that an alien was eligible for the amnesty was established by the implementing rules. This provision transferred the burden of proof to the INS to disprove the applicant's eligibility. In the Western region, where about a third of the amnesty applicants resided, the entire investigatory personnel made available to the IRCA implementation staff consisted of two persons. Is it any wonder that fraud was rampant?
Mr. Chairman, we are unaware of any record compiled by the INS of efforts to locate and remove illegal aliens who filed applications for the amnesty and then abandoned them or were denied amnesty on the basis of fraud. You are aware of our firm conviction that detention and removal of illegal and criminal aliens is the fulcrum upon which the integrity of our immigration law hinges. The integrity of the system was weakened to the extent that no effort was made by the INS to apply the legal framework adopted in the 1986 IRCA by removing illegal aliens who did not qualify for the amnesty.
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We are convinced that the 1986 IRCA began the massive erosion of the deterrents against illegal immigration. The use of fake documents to circumvent the amnesty screening process presaged the mushrooming industry in the production for counterfeit social security cards and driver's licenses to circumvent the new employer sanctions provisions of IRCA.
Americans tend to assume that aliens will respect our immigration law and will be honest in their dealings with U.S. Government authorities. Our experiences with the IRCA amnesty, and with the documentary requirements for new hires under that law, show that those assumptions are sadly misplaced. What our experience demonstrates, once again, is that a firm policy of enforcement including apprehension and removal is the key to establishing compliance with the law.
AMNESTY REVISITED AND CURRENT IMPLICATIONS
Rather than the one-time amnesty that was promised in 1986, the American people were presented a second amnesty in 1997 when the Administration called for permanent residence for Nicaraguans and Cubans and relaxed policies for suspension of deportation for national of El Salvador, Guatemala, the former Soviet Union and some Eastern Europeans that are the equivalent of a ''rolling amnesty.'' The ''rolling amnesty'' offers residence to aliens residing illegally in the United States, except on a case-by-case basis rather than as a blanket conferral. These provisions in the Nicaraguan and Central American Relief Acts (NACARA) have spun off further amnesty movements in which national from Central American countries other than Nicaragua are agitating fir the same broad amnesty that Nicaragua received. Haitians are also now clamoring to be included on the list.
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The lesson is clear. The first amnesty in 1986 begat new amnesty expectations, and the follow-up amnesty in 1997 has further opened the floodgate of expectations. Recurring relief from deportation and legal status is not lost on other would-be illegal immigrants. The door appears to be swung wide for anyone who can succeed in getting into the country by fraud or stealth, with or without screening to determine whether they are a threat to the American public in terms of terrorism, diseases they may be carrying, criminal careers they may pursue in this country, or whether they incur a significant burden to the American taxpayer.
THE ONLY TRUE REMEDY TO INCREASING ILLEGAL IMMIGRATION
Those who are coming and staying illegally in the United States will remain undeterred unless there is a clear and unmistakable message to illegal aliens that there will be no more amnesties and that illegal residence in the United States will not be rewarded with permanent residence. That message was partially proclaimed in 1997 when provisions were adopted eliminating the section 245(i) system of recycling illegal residents into legal status with the payment of $1,000 fine. Another part of that message, adopted in 1997, was the requirement that aliens who have resided here illegally will have to wipe the slate clean by departing the United States and residing abroad for a significant period before they will be eligible to return for legal residence. However, that message was unfortunately diluted by the adoption of NACARA the next year.
What we need now is a clear and unequivocal statement by the Congress, hopefully endorsed by the Administration, that there will be no further amnesties for illegal aliens. The United States has evolved an immigration policy that is designed to be responsive to the nation's needs. That policy enjoys the support of the American people as long as it is clear that it is not riddled with loopholes and that those who come either as temporary visitors or as immigrants have done so while respecting our laws.
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Increasingly, we have seen our immigration law and policy dictated by special interests who do not have any regard to the consequences on our society outside of their narrow focus. FAIR calls on Congress to assume its traditional role as balancer of special interests with the overall national interest. Mr. Chairman, FAIR is prepared to assist you in your efforts to restore respect for America's heritage of immigration in accordance with the nation's laws.
1) TPS, and its administrative antecedents, has become a reaction to the virtual absence of effective interior enforcement by the INS. Slowly, but surely the initial 1986 amnesty precedent is merging with the procedure known as ''Suspension of Deportation'' in order to create a form of rolling amnesty on a nation-specific basis. This is the inevitable result of the complete failure of the INS to engage in effective interior enforcement. The latest INS interior enforcement strategy memo (1999) does not even contemplate using interior alien apprehensions as a benchmark of enforcement success. TPS and its antecedents become mere bureaucratic responses to a large nonresident alien population that the INS has been unable or unwilling to send home. It is hard to see how the present trends can be reversed without a radical shift in the INS' philosophy and vision.
Since 1987, foreign groups that are able, have used the excuse that temporary forbearance is appropriate as a result of some generalized home-country conditions that render mass repatriation undesirable. Years later, those same groups are still here, only now contending for permanent residence claiming a set of equities entirely unrelated to the original claims. Now the claims are based not only on the aliens' length of residence in the U.S., but on the claim of ''disparate treatment,'' that other groups have gotten preferential treatment and to withhold similar treatment for them is ''discrimination.''
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Many of the groups demanding TPS and, later, permanent status have entered illegally; and so the program itself has become a magnet attracting more illegal residents for a wider variety of countries.
To end this cycle, Congress needs to speak with one voice on the importance of ending mass illegal immigration, and of the importance of equipping the INS (under professional, committed leadership) to handle the large-scale apprehension and deportations required to restore integrity to the rule of law.
No other agency of the Federal Government has had such a huge increase in its mission and in the number of persons with which it must try to deal. Adequate resources, especially adequate detention space, is the foundation on which all law enforcement rests.
2) TPS should only be available to populations that have entered the U.S. legally; it should be a program available only to those who are here in the normal course of affairs for whom returning would be a hardship. TPS is as much a convenience for the home country as for the alien itself, and should be viewed as an interim period of forbearance from enforced departure, not an interim amnesty for large classes of illegally resident aliens. Those who once receive TPS should not be permitted to jump from one administrative status to another. TPS cannot be a mere stepping stone to permanent residence. While TPS could be extended administratively, those who receive TPS should not be given any further opportunity to file claims for relief later under any other provision of U.S. law, other than as a result of a marriage to a U.S. Citizen. Once the status expires, the alien should not be permitted to apply for a Permanent Residence visa for at least two years. This should be made clear to the applicant at the time he/she applies for TPS.
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3) Those receiving TPS are not refugees or asylees as recognized under U.S. law or international conventions and treaties to which the U.S. is a party. Their claims of hardship, while compelling in their own right, are not to be viewed as the basis of refugee admissions. Rather, they are immigration admissions; aliens granted the right to adjust as permanent residents should do so within existing annual visa allocations. Large scale grants of TPS and a rolling suspension of deportation should not be an add-on to the existing immigration flow. Rather, there needs to be an offset from future numerical allocations to compensate. Otherwise, the pressure can and will continue to grow to increase annual visa numbers.
4) The present efforts of the Administration to subvert the intent of Congress by broadening the case-by case review of Central Americans other than Nicaraguans for suspension of deportation under the guise of permanent hardship caused by Hurricane Mitch must be exposed by Congress as a new form of amnesty.
5) The Administration should be asked to invoke the immigration emergency authority it has to deal with the current large-scale influx of Central American illegal entrants. The release of these new illegal immigrants under the pretext that detention space is limited is a ruse.
EXTENDED VOLUNTARY DEPARTURE (EVD) BENEFICIARY COUNTRIES: Between 1982 and 1990 EVD was used to provide for extended stay in the U.S. for nationals of the following countries: Poland, Ethiopia, Afghanistan, Uganda, Cuba, Dominican Republic, Czechoslovakia, Chile, Cambodia, Vietnam, Laos, Lebanon, Hungary, Romania, Iran, Nicaragua, P.R. China.
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DEFERRED ENFORCEMENT OF DEPARTURE (DED) BENEFICIARY COUNTRIES: ChinaApril 1990; El SalvadorSept. 1990; LiberiaMar. 1991; KuwaitMar. 1991; LebanonMar. 1991; SomaliaSept. 1991; BosniaAug. 1992; RwandaJune 1994; Sierra LeonNov. 1997; BurundiNov. 1997; SudanNov. 1997; MontserratAug. 1997; KosovoJune 1998; NicaraguaDec. 1998; El SalvadorDec. 1998
Mr. SMITH. Thank you, Mr. Stein.
Let me note the presence of six members. As soon as we get a seventh member, we will proceed as I earlier indicated, but until that time, Ms. Massomino, if you will proceed?
STATEMENT OF ELISA MASSOMINO, DIRECTOR, LAWYERS COMMITTEE FOR HUMAN RIGHTS
Ms. MASSOMINO. Thank you, Mr. Chairman, Congresswoman Jackson Lee and members of the subcommittee.
It has been a while since I have been here, and we appreciate the opportunity to provide our testimony today on Temporary Protected Status.
The Lawyers Committee for Human Rights is a nonprofit, nongovernmental organization which, since 1978, has worked to promote and protect fundamental human rights, holding all governments, including the United States, accountable to upholding the standards set forth in the Universal Declaration of Human Rights and subsequent international human rights treaties.
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Mr. SMITH. Please finish and then we will go to our voting.
Ms. Massomino. I have a longer statement, which I hope will be included in the record, and I will try to quickly summarize that.
Mr. SMITH. Without objection, the full statement will be included.
Ms. MASSOMINO. As you know, a substantial focus of our work over the years has been the protection of refugees and other populations at risk of harm. We operate one of the largest and most successful pro bono representation programs for refugees in the country. In partnership with volunteer lawyers, we've represented many hundreds of refugees during the course of this work.
Our advocacy work to promote fair and humane treatment of refugees is grounded in this hands-on experience derived from dealing directly with those who seek protection in this country. I very much appreciate the opportunity to present that perspective here today.
Prior to passage of the 1990 Immigration Act, the Lawyers Committee was a proponent of Temporary Protected Status as a device to regularize U.S. practice in granting short-term relief to at-risk populations. Since that time, we have published a number of papers evaluating the program and critiquing its implementation.
Although we believe that TPS has, to some degree, achieved its humanitarian purposes by providing temporary sanctuary to a limited number of person from designated countries in a reasonably straightforward fashion, we have identified a number of areas in which improvements would both enhance the potential of TPS to provide protection and address some of the concerns that have been raised by critics of the program. I would like to focus on those today.
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First, I was very pleased, Chairman Smith, in your opening statement to hear that the question being asked here is not whether we should provide temporary protection. We should. TPS stems, as I think we all agree, from a laudable humanitarian impulse. The question is, how ought it to be implemented. Is it really temporary and what can we do to ensure that it conforms with the goals that Congress intended it to achieve?
When TPS is designated for a particular country, the INS estimates the number of individuals it believes are currently in the United States who would be eligible to be granted such relief. According to INS estimates that we have seen, the total number of individuals over the course of the 14 separate designations believed eligible for grants of TPS since the inception of the program is less than 400,000. That number includes Salvadorans.
In fact, the statistics we received comparing the INS estimates to the actual numbers of TPS applications granted during the first 18 months of the program, including El Salvador, Kuwait, Lebanon, Liberia and Somalia, reflect a substantial disparity between the estimated number of individuals eligible and the actual number of applications.
Either the number of eligible TPS applicants from the designated States was overestimated, or adequate information and notice were not provided to those individuals who were eligible for TPS. Considerable public and private outreach efforts were made on behalf of Salvadorans, but not for the other groups, which may explain some of the disparities in these numbers.
We have just a few recommendations for improvement that I would like to submit for your consideration that we think would strengthen the humanitarian nature of the program and respond to the question of whether this is really a temporary program.
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First, we need to make the designation process more transparent and accountable. Only a few of the nationalities that would qualify for TPS have actually received grants of temporary protection. The broad discretion accorded the Attorney General in designating countries for TPS raises a concern that was often leveled against its predecessor, EVD, namely that the designation or the failure to designate a particular country may be due to factors such as domestic politics, ideology, geographic proximity to the United States, foreign policy concerns, the number of nationals in the United States who would be eligible for protection or other factors that are not accounted for in the statute.
To alleviate these concerns, the Attorney General should publish guidelines explaining the circumstances under which TPS designation is appropriate, including a definition of ongoing, armed conflict that is based on the definition in the Geneva Convention. These standards should serve as a guide to the Attorney General in the exercise of her discretion and could include such items as: an assessment of the likely duration of the displacement; an assessment of national versus regional or local conditions; an assessment of the likelihood of additional migration after designation; examination of the ability of the United States to play a role in resolving the underlying conflict (if it is based on a conflict); and the scope of the humanitarian need.
Furthermore, although the statute provides for an interagency working group to advise the Attorney General about the designation of States for TPS, there is no regularized internal agenda setting process for this group, nor is there any protocol in place to guide the decisionmaking process. The group has, in the past, failed to review or reach decision on designations prior to their expiration, and the impetus for considering new designations has frequently depended on communications from NGOs or other interest groups.
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Mr. SMITH. Ms. Massomino, if you will conclude, you will be a heroine of mine for life.
Ms. MASSOMINO. I will do that. Let me just say the two or three other items which I will not describe but simply list. One is to establish a regular procedure for evaluating the eligibility cutoff dates which I think the INS has begun to do in a very ad hoc way but needs to be a part of this regular procedure. Second, as I think has been touched on at least by Ms. Jackson Lee, devote greater resources to publicizing termination in advance and to encourage return upon expiration of TPS.
[The prepared statement of Ms. Massomino follows:]
PREPARED STATEMENT OF ELISA MASSOMINO, DIRECTOR, LAWYERS COMMITTEE FOR HUMAN RIGHTS
Chairman Smith, Congresswoman Jackson Lee and members of the Subcommittee, thank you for inviting the Lawyers Committee to appear before you today to testify about the operation of Temporary Protected Status. My name is Elisa Massimino, and I direct the Washington office of the Lawyers Committee for Human Rights. The Lawyers Committee is a non-profit, non-governmental organization. Since 1978, the Lawyers Committee has worked to promote and protect fundamental human rights, holding all governmentsincluding the United Statesaccountable to upholding the standards set forth in the Universal Declaration of Human Rights and subsequent international human rights instruments.
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As you know, a substantial focus of our work over the years has been the protection of refugees and other populations at risk of harm. The Lawyers Committee operates one of the largest and most successful pro bono representation programs for refugees in the country. In partnership with volunteer lawyers, we have represented many hundreds of refugees during the course of this work. Our advocacy work to promote fair and humane treatment of refugees is grounded in the extensive hands-on experience derived from dealing directly with those seeking protection in the United States, and our testimony today reflects this perspective.
Prior to passage of the 1990 Immigration Act, the Lawyers Committee was a proponent of Temporary Protected Status (TPS) as a device to regularize U.S. practice in granting short-term relief to at-risk populations.(see footnote 1) Since that time we have published a number of papers evaluating the program and critiquing its implementation.(see footnote 2) Although we believe that TPS has to some degree achieved its humanitarian purposes by providing temporary sanctuary to a limited number of persons from designated countries in a reasonably straightforward fashion, we have identified a number of areas in which improvements would both enhance the potential of TPS to provide protection and address some of the concerns that have been raised by critics of the program. Our testimony will outline the history of temporary protection in the United States, examine briefly the international context for temporary protection, set forth the current usage of TPS, and offer our suggestions for improved implementation.
II. BACKGROUND: TEMPORARY PROTECTION BEFORE TPS
The United States has long found a need to provide some form of temporary safe haven for certain classes of foreign nationals. Prior to the enactment of TPS, the Attorney General dealt with this issue essentially through prosecutorial discretion by electing not to use INS resources to effect the deportation of certain foreign nationals who would face danger due to civil war or strife in their home countries. This informal procedure, which was referred to as Extended Voluntary Departure (EVD), was used to provide blanket relief from deportation, on a discretionary and temporary basis, for all members of a particular nationality. EVD provided some access to public benefits for the beneficiaries, but the status was never formally defined and, as such, the attendant benefits and criteria for application fluctuated depending on each Administration's judgments regarding foreign policy, humanitarian considerations, and immigration concerns.(see footnote 3)
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Another precursor to TPS is a system of temporary protection known as Deferred Enforced Departure (DED). Like EVD, DED is a non-statutory form of blanket relief from deportation awarded to specific nationalities at risk. DED was granted to Chinese nationals present in the United States at the time of the Tiananmen Square massacre, allowing them to remain and work in the United States. At the expiration of this status, Chinese DED recipients were permitted to apply for permanent residence pursuant to the Chinese Student Protection Act. DED was also granted to Salvadorans at the expiration of their TPS status in 1992, largely as a result of foreign policy considerations. For a number of reasons, the situation of Salvadorans as a class of nationals granted temporary protection is unique, and therefore is not a usefule yardstick by which to measure the merits or demerits of a temporary protection program. At about the same time that TPS was enacted, the INS settled a class action lawsuit brought by Salvadorans and Guatamalans which alleged impermissible foreign policy bias in the asylum adjudication process. The settlement presents an independent ground on which deportation of eligible class members is barred and requires de novo adjudication of asylum claims. This process was to have begun upon the expiration of TPS and DED for Salvadorans and, to a large extent, is ongoing.
III. TEMPORARY PROTECTED STATUS: THE INTERNATIONAL CONTEXT
The United States is not alone in having reached the conclusion that the need to provide temporary protection to certain at-risk populations should be regularized. Many European countries have established procedures for providing such protection, most of these having developed during the refugee crisis created by the war in the former Yugoslavia. The European measures generally do not encompass conditions relating to natural disaster. Although these systems vary widely between countries, there does appear to be a consensus that blanket temporary protection of certain groups is a fairly straightforward, low-cost and flexible method of providing humanitarian relief to individuals at risk of harm if returned.
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The U.S. system of temporary protection under TPS is offered to individuals already in the United States and is, in some ways, more generous than temporary protection mechanisms in Europe. However, TPS was not offered to Haitians or Cubans during the boat crises, both large composite populations whose flight to the United States might be considered this country's closest recent parallel to the Yugoslav refugee crisis. Moreover, TPS does not carry the basic guarantees often provided in the European context, such as family unity or protection of economic and social rights. Even the right to work is often seriously undermined by substantial delays in providing the necessary papers.
The UNHCR Executive Committee, of which the United States is an active member, has issued a formal conclusion regarding the concept of temporary protection.(see footnote 4) The Executive Committee noted the increasing use by States of temporary protection in situations of mass influx and, while endorsing the continued importance of addressing refugee protection through the provisions of the Convention, stressed the necessity of providing ''at least'' temporary refuge in situations of large scale influx.(see footnote 5)
IV. THE STATUTORY FRAMEWORK FOR TPS IN THE UNITED STATES
A. Eligibility Criteria
TPS is provided to nationals(see footnote 6) of countries specifically designated by the Attorney General, after consultation with appropriate government agencies. The Attorney General may designate any country experiencing armed conflict, natural disaster or other extraordinary conditions. Persons from these countries will be granted employment authorization and will not be forced to return to their homelands while those dangers exist.
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An individual is eligible for TPS, regardless of his or her immigration status, if he or she: is a national of a state designated for TPS; has continuously resided and been physically present in the United States(see footnote 7) since the effective date of the most recent designation of the country concerned; is admissible as an immigrant to the United States;(see footnote 8) and registers for TPS under established procedures. An individual is generally ineligible for TPS if he or she: has been convicted of a felony or two or more misdemeanors committed in the United States; has been convicted of a drug offense; has participated in the persecution of any person on account of race, religion nationality, membership in a particular social group or political opinion; or presents a danger to national security.
B. Designation Periods
The initial designation period may range from six to eighteen months. Designation takes effect upon the date of publication in the Federal Register, or as otherwise provided for in the Federal Register. The Attorney General must review the conditions in a designated country at least sixty days before the end date for extensions of the period. If the state ceases to meet the criteria for continued designation, the designation may be terminated by publishing a notice in the Federal Register.
C. Registration and Application
An individual must file a completed application during the registration period to be eligible for TPS. The formal registration procedures may vary in local INS offices. Each individual applying for TPS must file a separate application. An applicant for TPS has the burden of proving his or her eligibility, and must submit supporting documentary evidence, if available, to substantiate eligibility. Information provided by TPS applicants is confidential and unavailable to the public. However, the authorities reserve the right to use the information to enforce other aspects of the immigration laws. Obviously, the use of such information to promote immigration enforcement objectives may deter some individuals from applying for TPS.
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D. Benefits and Status During the TPS Period
TPS recipients are eligible to apply for asylum in the United States, and are entitled to work and to release from detention. A TPS recipient is issued registration documents, generally in the form of a special notation on the employment authorization document, but is not eligible for most public assistance benefits. TPS recipients are not permitted to travel abroad without obtaining prior approval.
An applicant will be entitled to TPS only after he or she has established prima facie eligibility. The INS can delay granting TPS if evidence exists pointing to the applicant's ineligibility. Although TPS is intended to be a blanket protection for all nationals of a designated country, the determination of an applicant's eligibility for TPS is made strictly on a case-by-case basis.
E. Estimated Numbers of TPS Beneficiaries
When TPS is designated for a particular country, the INS estimates the number of individuals it believes are currently in the United States who would be eligible to be granted such relief. According to INS estimates, the total number of individuals (from fourteen separate designations) believed eligible for grants of TPS since the inception of the program is less than 400,000. In fact, statistics we received comparing the INS estimates to the actual numbers of TPS applications granted during the first eighteen months of the program (covering El Salvador, Kuwait, Lebanon, Liberia and Somalia) reflect a substantial disparity between the estimated number of individuals eligible and the actual number of applications.(see footnote 9) Either the number of eligible TPS applicants from the designated states was overestimated, or adequate information and notice were not provided to those individuals who were eligible for TPS. Considerable public and private outreach efforts were made on behalf of Salvadorans, but not for the other groups. A clear need exists for more outreach programs in order to better inform the nationals of the designated states of their benefits under TPS.
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V. RECOMMENDATIONS FOR IMPROVEMENT
The TPS program has to some degree achieved its humanitarian purposes by providing temporary sanctuary to a limited number of persons from designated countries in a reasonably straightforward fashion. The TPS application process is relatively simple, and the protection afforded from deportation, along with the ability to work to meet one's basic needs, results in a useful tool by which the United States can respond to conflict and other emergency situations causing immigration outflows.
There are, however, several improvements we would suggest in the implementation of the TPS program which, if adopted, would help both to bring the program into full compliance with its humanitarian objectives, as well as to address some of the concerns raised by critics of the program.
A. Make the Designation Process More Transparent and Accountable.
Only a few of the nationalities that would qualify for TPS have actually received grants of temporary protection. The broad discretion accorded the Attorney General in designating countries for TPS raises a concern that was often leveled against EVD, namely, that the designation or failure to designate a particular country may be due to factors such as domestic politics, ideology, geographical proximity to the United States, foreign policy concerns, the number of nationals in the United States who would be eligible for protection, or other factors not set forth in the statutory criteria.(see footnote 10) To alleviate these concerns, the Attorney General should publish guidelines, explaining the circumstances under which TPS designation is appropriate, including a definition of ''ongoing armed conflict'' that is based on the definition contained in the Geneva Convention Relative to the Protection of Civilian Persons in Time of War and its additional protocol. These standards should serve as a guide to the Attorney General in the exercise of her discretion. Such standards should include:
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an assessment of the likely duration of the displacement;
an assessment of national versus regional or local conditions;
an assessment of the likelihood of additional migration;
an examination of the ability of the United States to play a role in resolving the underlying conflict; and
the scope of the humanitarian need.
Furthermore, although the statute provides for an inter-agency working group to advise the Attorney General about the designation of states for TPS, there is no regularized internal agenda-setting process for this group nor is there any protocol in place to guide the decision-making process. The group has in the past failed to review or reach decision on designations prior to their expiration, and the impetus for considering new designations has frequently depended on communications from NGOs and various interest groups. The process has typically been protracted and lacks transparency.
One potential remedy for this problem would be for the Attorney General to consistently comply with the statutory requirement to submit an annual report to the House and Senate Committees on the Judiciary regarding TPS. These reports are supposed to list the designated TPS countries, explain why the Attorney General designated these countries (or why she decided to terminate or extend TPS for currently designated countries), and provide an estimate of the number of nationals in the United States who are eligible for TPS as well as their immigration status prior to gaining TPS. Such reports would help to eliminate speculation about non-statutory criteria driving the designation process and would provide lawmakers an opportunity to more rigorously and regularly evaluate the operation of TPS.
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B. Establish a Regular Procedure for Evaluating Eligibility Cut-Off Dates.
A further area of concern relates to the significant restrictions on protection which result from the imposition of retroactive cut-off dates for TPS eligibility. Nationals of a state designated for TPS are eligible for protection only if they have been continuously physically present and residing in the United States since the effective date of the most recent designation of the state in question. In all save one of the designations made to date, cut-off dates have been imposed in initial designations, and these dates have not been advanced when the designation has been extended upon the expiration of the initial designation period. This is so despite indications that conditions in some of the designated countries have deteriorated since the time of the initial designation. For example, in order for a Somali national to qualify for TPS, he or she must have arrived in the United States as of September 16, 1991, and must have resided in this country since that date. Even though conditions have periodically worsened in Somalia since the initial designation date, a Somali who arrived after the cut-off date and who may be equally in need of humanitarian protection, is precluded from eligibility.
To alleviate this problem, cut-off dates should be evaluated regularly by the inter-agency working group and should be moved forward when appropriate to account for deteriorating conditions in a TPS-designated state.
C. Devote Greater Resources to Publicizing Termination and Encouraging Return Upon Expiration of TPS.
Page 113 PREV PAGE TOP OF DOC A persistent criticism of TPS is that beneficiaries may not return home once temporary protection is terminated. Since the INS does not keep statistics on the voluntary return or deportation of TPS beneficiaries at the expiration of the protection period, there is no way of knowing whether, or to what extent, such a critique is well-founded. However, what is clear is that those concerned about the failure of former TPS beneficiaries to return home have devoted insufficient thought and resources towards creative arrangements to encourage return. Though it may not wish to articulate this fact, one may assume that, given limited prosecutorial resources, the INS will not place a high priority on seeking out and deporting TPS beneficiaries over and above others who pose a greater risk to the safety of U.S. citizens or to national security.
In light of this consideration, serious thought should be given to addressing the issues which may deter a former TPS beneficiary from returning home. War, civil strife and natural disaster may fundamentally alter the conditions of life for a returnee. He or she may face the loss of home, family members and the possibility of employment. The United States should consider building in incentives to encourage return and assist in overcoming the fears and uncertainties that may prevent TPS beneficiaries from returning home. For example, the United States may be able, through the Agency for International Development, to provide financial assistance to returnees to ease reintegration. UNHCR or other international organizations may be able to adapt existing programs which assist returning refugees in order to provide support for TPS returnees as well.
Temporary Protected Status was enacted to regularize an admirable humanitarian impulse. TPS has proven to be a useful device to extend much-needed protection to individuals who may not be eligible for asylum but who have fled situations where armed conflict or natural disaster has put their lives at risk. In our view, the program should be strengthened in order to enhance its accountability and to fully realize the humanitarian objectives it was intended by Congress to serve. Pursuant to House Rule XI, clause 2(g)(4), my curriculum vitae is attached. The Lawyers Committee for Human Rights has not received any federal grant, contract or subcontract in the current and preceding two fiscal years.
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Mr. SMITH. Thank you for your testimony. I agree with the ad hoc description.
The Chair notices the presence of a reporting quorum, that being seven members or more. I really appreciate everyone being here. I know you stepped out of another hearing. We will proceed to try to get a lot of business accomplished in a very short period of time.
[Whereupon, the subcommittee considered other matters.]
Mr. SMITH. We will now resume our questioning of our witnesses on the panel.
Mr. Krikorian, let me direct my first questions to you. I gathered from your testimony that you do not feel the TPS statute that we have is working because it has basically turned into a general amnesty program that never ends. Is that a fair statement?
Mr. KRIKORIAN. Experience, it seems to me, shows, at least the conclusion I have drawn is, the temporary protected status as suchin other words temporary protectionis what ends up leading to permanent status, not so much the specifics of the TPS provisions of the 1990 act. In other words, anytime large numbers of people are permitted to stay for long periods of time, inevitably it has resulted in permanent status for those people.
Mr. SMITH. I wanted to go back to your testimony for a minute. This was right at the end of your testimony where you said what the administration is considering doing in regard to several individuals from two Central American countries, applying a blanket finding of extreme hardship, amounts to an unlegislated amnesty. Then you make the point ''but temporary protection would simply be a lie if it were used as a back door to permanent immigration or as a fig leaf to cover political unwillingness to enforce the law.''
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That is really my question. According to your testimony, there has never been an example in history where TPS has been temporary. In almost every instance or in every instance, it has become permanent.
Mr. KRIKORIAN. As far as I can tell, yes. The only way we would really be able to answer that definitively would be if the INS somehow were able to determine what happened to individual TPS recipients.
Mr. SMITH. Why do you think the INS has not enforced the law?
Mr. KRIKORIAN. The question is not necessarily whether the INS has enforced the law but what status has been conferred upon the TPS or temporary protectees by Congress or the administration.
Mr. SMITH. Why enforce the law if the temporary is going to become de facto permanent?
Mr. KRIKORIAN. Good question and it may be the internal dynamic may well be that they figure eventually Congress will grant the permanent status to these people.
Mr. SMITH. Mr. Stein, a couple questions for you. Why do you think TPS designation would increase illegal immigration of other kinds, other sorts?
Mr. STEIN. Because it does two things. One, it sends a signal to the sending country that is often confused, and I think we see this going on right now in several Central American countries. The perception is that the United States has a form of amnesty, that we are not deporting people. We are releasing people who were slated for deportation. Secondly, the TPS itself is a process that tends to break down the bureaucratic forces that are normally operationalthey are not operational now anywaywhich would be returning aliens from this country here illegally. And, it creates a long-term process of just tracking people to permanent residence.
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Mr. SMITH. Let me ask you a follow-up question. Individuals who have obviously been granted TPS are here for a certain period of time up to 18 months, sometimes longer. If they have been here for a number of years, why wouldn't they deserve permanent residence?
Mr. STEIN. Why wouldn't they deserve permanent residence?
Mr. SMITH. Yes.
Mr. STEIN. What we are dealing with is what are we trying to achieve through these programs? The long-term economic restructuring and building of these nations is what we are trying to achieve. There has been a dependency mentality that has evolved here where the aliens working here are sending home remittances and the foreign governments want to keep that coming. That dependency is bad. Those countries lose the enterprise and entrepreneurship of the people working in the U.S. economy that could be put to work rebuilding those countries. Those folks here now want to bring their relatives. All those equities are really not in the long-term security interest of the nations involved. Instead, as we have done in Cuba, we have sustained a corrupt government in power and drained all the agents for positive political change. Certainly you don't want people to be line jumping in front of millions of people who are having to wait years for their green cards in the normal process.
One thing I want to say, and Jack Shaw makes this point very well in his testimony, every time Congress provides an opportunity for blanket reliefthe Cuban Adjustment Act, amnesty, EVD, DED, TPSthe administrative process of INS breaks down. They are unable to track the aliens, unable to scrutinize the facts underlying the applications. They really lose control of the whole process. In the end, removing the alien becomes administratively too costly and they throw up the white flag and say, ''well, they are here, we may as well let them stay.''
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Mr. SMITH. Thank you, Mr. Stein.
The clock was not running but I suspect my time is up and I will recognize the gentlelady from Texas.
Ms. JACKSON LEE. Thank you very much, Mr. Chairman.
I think I clarified our numbers on TPS, at least the approximation of such, which the witness for the INS indicated that we're in the number of about 100,000.
Mr. SMITH. Would the gentlelady yield for 1 second?
Ms. JACKSON LEE. I would be happy to yield.
Mr. SMITH. I didn't press the point and these days, as you know, we are playing very close attention to the meaning of words. The answer to your question was how many people currently are in the United States with the current designation of TPS. The figure did not include those individuals who had been granted TPS in the past but whose TPS status has expired.
Ms. JACKSON LEE. That was the direction of my question. I would be happy to get more precise numbers which I imagine would not carry us much over that. When I say much over that, it is with the relative understanding that maybe it is in the 200,000 range. I think the focus of my point is defining something in the crisis status is a relative definition.
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I do think it is important, however, that we look at this. I welcome this particular hearing on solutions.
I do want to note in addition to that number and that it may be higher, the fact of the thrust of our discussions, particularly with two of our witnesses, and I appreciate receiving from Mr. Krikorian I believe, some articles. I do want to note that he included in the articles, and this sort of frames my question, one article dealing with ''Border Patrol Sweep Angers Parents, Five Arrested Near School.'' It expresses the outrage of Hispanic parents with border patrols going into schools. I think most Americans would find that outrageous. I am glad that Mr. Krikorian included that in materials that he sent to us because it notes a sense of balance.
There is also an article that says ''Chinese Teens Found at Host Homes.'' The thrust of the article is that 32 Chinese exchange students disappeared at the airport; there was a hysterical response that they were looking to defect and looking to do all the things we did not want them to do; and in fact, they were found safely in host homes with the permission of their parents to stay an extra 6 months for study.
I only raise that to say that all of us will try to maintain a balance on some of these questions because I think that will help us get to the answers. With that in mind, Ms. Massomino, your suggestions, are they suggestions that can be administratively implemented by INS on the TPS structure or are you suggesting legislative reform?
Ms. MASSOMINO. Both. Are of the suggestions that I make in my testimony is publication about termination in advance. To the extent that unscrupulous lawyers, whoever they are, can put ads like this in the paper, the U.S. Government can also advertise more clearly in advance exactly what this program is, discourage people from coming who think they might be eligible when, in fact, because of the cutoff date situation, they would not be eligible. Those kinds of things certainly can be undertaken administratively by the INS.
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In terms of encouraging return by creating incentives, I think also that is something that can be done, perhaps not by the INS but by other government agencies to devote resources, as we do in other situations of armed conflict or countries that are recovering from armed conflict, to give people financial incentives and security incentives to return to a place that may be utterly changed from the time they left it. That certainly would have been true with Salvador.
Ms. JACKSON LEE. I think we could clearly have large signs and media outreach in communities susceptible to TPS to say this is not a substitute for the process of immigrating to the United States on a permanent basis. I think if we make that clear, we have what should be a humanitarian program in place but with the clear understanding that it does not substitute. Do I hear you correctly?
Ms. MASSOMINO. Exactly.
Ms. JACKSON LEE. Let me move to Mr. Stein. You used the term it does not substitute or we do not want the TPS applicant or recipient to jump in front of others who have been dutifully standing on line, if you will, not literally but figuratively trying to follow the procedures. However, let me understand what you said about an absolute bar of the TPS recipient ever becoming a citizen. I did not understand that. I am wondering, even within our realm of laws, that a complete bar always raises concern. What are you suggesting there?
Mr. STEIN. What I am saying is that people who are given an opportunity for TPS ought not to be able to adjust status to permanent residence, rather should be required to go back to the home country before they can apply to get a green card, except as a result of a marriage to a citizen.
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The intent here is to try to build into the systemsome of which was incorporated in the 1996 legislation Congress wisely passeda measure that will encourage compliance with the law and that will link an alien's ability to immigrate with their willingness to follow the rules of the game.
Ms. JACKSON LEE. So the marriage would be an exception that you would allow which is marriage to an American citizen?
Mr. STEIN. Right.
Ms. JACKSON LEE. And you would not allow TPS to remain in the country to file while they are applying for legal residence status but also that they get in line behind others. You still want them to leave the country and apply from there?
Mr. STEIN. Right. You are essentially breaking the process if you extend TPS to people here illegallywho have come over as tourists, for example. An 18-month suspension in administration of the process, once the designation expires, should essentially put them in the status quo antewhere they were beforeand have them otherwise expecting to go home in compliance with our laws.
The Salvadoran TPS status was agitated for for years and years and years, long after the height of the civil war ended in the mid-1980's. And we were told just 18 months, and then it just kept getting strung along through one administrative avenue after another. Then there was the American Baptist Churches case that put them in the asylum queue. Then they got shoved to the back of the queue while efforts were made to get Congress to pass what ultimately became the provision that allowed them to adjust statutorily.
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Now we seem to be expanding through incrementalism a process of accepting the INS' inability to find these folks after the expiration of their legal stayin the same way the INS is not able to find people who enter without inspection or overstay visas unless they come in contact with the criminal justice system.
My fear is you all are being put in the position of having to increasingly recognize legislatively the INS' inability to enforce the laws in the interior. The best way to stop that is to link an alien's ability to immigrate with that person's willingness to follow the rules, which was not the case for most of the last 30 years.
Ms. JACKSON LEE. In any event, I think we have established a basis for looking to fix TPS. I would not categorize those who came under TPS as tourists of sorts. I think they all had legitimate reasons. I do think we can find a way and I will consider your thought of sending folk back who may be in the legal process. I question that and want to see how that would work but I thank you for your answer.
Thank you, Mr. Chairman.
Mr. SMITH. Thank you.
Ms. Massomino, I have one quick question for you. I assume, correct me if I am wrong, that you feel TPS grantees should return home after their status has expired, correct?
Ms. MASSOMINO. That is consistent with the goal of the program, yes. I think what we need to do is work to figure out ways to address that.
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We may need to think about situations, for example, like Liberia where the civil war has created an unsafe situation for so long, that we want to look at other long-term avenues of protection for people like that.
Mr. SMITH. Thank you, and thank you all for being here today. We appreciate your testimony.
I'll invite our third panel to come forward: Professor Monica Heppel, Mount Vernon College and Research Director, Inter-American Institute on Migration and Labor and Mr. John F. Shaw, Former Assistant Commissioner for Investigations, Immigration and Naturalization Service.
Welcome to you both. We appreciate you being here. Professor Heppel, we will begin with you. You are at Mount Vernon College on Foxhall Road?
Ms. HEPPEL. Yes
STATEMENT OF MONICA HEPPEL, PROFESSOR, MOUNT VERNON COLLEGE, AND RESEARCH DIRECTOR, INTER-AMERICAN INSTITUTE ON MIGRATION AND LABOR
Ms. HEPPEL. Good morning, Mr. Chairman, Congresswoman Jackson Lee. Thank you for the opportunity to testify about the issue of fraud and amnesty programs.
Page 123 PREV PAGE TOP OF DOC The special agricultural workers, SAW, provisions of IRCA, the program about which I have been asked to testify, was unique in that it was industry-specific and was crafted at the last minute with no public debate or testimony. It has often been stated that there was a great deal of fraud in that program and I believe there was fraud. The extent of the fraud, however, is not clear. The problem in estimating the level of SAW fraud is our uncertainty over the number of people employed as farm workers and our ignorance of the proportion of that number that was undocumented and thus, eligible for amnesty. We only know that many more people claimed to be eligible and applied for legalization under the SAW Program than anyone had anticipated.
There are many opportunities for a significant under count of farm workers when examining agricultural data, whether trying to anticipate the number of farm workers who might be eligible for amnesty or calculating the percentage of fraud based on such an estimate.
For example, estimates of the number of workers derived from production data are flawed due to the high rate of underemployment in the agricultural sector. We can't tell whether 25 workers picked grapes for 8 hours or 50 workers picked for 4 hours. Likewise, estimates based on an analysis of unemployment insurance data are flawed by the fact that these figures rely on employer-generated information of workers' Social Security numbers. We know that many workers are never entered into that system.
The other basis on which a high rate of SAW fraud is assumed is anecdotal and there were many anecdotes. But, it would be purely conjectural to assign a percentage to the number of fraudulent SAW applications based on data that is seriously flawed combined with anecdotes.
Page 124 PREV PAGE TOP OF DOC By this, I do not mean to say that there was not a significant amount of fraud in the SAW Program. I believe there was. I just don't believe we can conclude whether this would apply to 10 percent, 20 percent, 50 or 70 percent of the applications.
I also want to point out there are a number of different types of fraudulent applications that could have been filed under the SAW Program. These included farm workers with valid claims to amnesty who could not obtain documentation; farm workers who did not quite meet the qualifying criteria; and non-farmworkers with no intention of ever working in agriculture.
The SAW Program was successful in meeting its primary goal, to legalize the existing agricultural work force. It was, in fact, specifically designed to do so. For example, the informal nature of recordkeeping in the industry led to the very lenient standard of documentation required for SAW applicants. This made it difficult to distinguish between the legitimate and fraudulent applications.
Also, specific to the SAW Program was the decision, again driven by agricultural employer requests, to allow workers to apply for temporary entry into the United States at a port of entry in order to gather documentation to support their applications. A credible claim of qualifying work was all that was necessary for temporary work authorization.
Other factors also had an impact on the level of fraud in the SAW Program. One was the administrative structure of the INS, specifically its decentralized nature. Different districts applied directives from the Central Office in different ways. This meant there were much stricter standards in one district and much more lenient ones in another. Some of these were challenged in court as discriminatory and the INS was forced to reopen and ultimately approve many of the cases that had previously been denied.
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One of the unintended consequences of the SAW Legalization Program, combined with employer sanctions, was to enhance the role of the farm labor contractor who was responsible for providing documentation, both legitimate and illegitimate to many workers. This presaged a reliance on false documents that now characterizes the industry.
In reviewing the overall impact of the special agricultural worker provisions of IRCA, the Commission on Agricultural Workers, a bipartisan, employer-dominated commission, concluded: ''In crafting the agricultural compromise that allowed IRCA to pass, Congress created an industry and worker-specific legalization program of unprecedented scale. It proved to be extremely difficult to implement and to control for fraud within it. By legalizing workers but not their families, the SAW Program deviated from the longstanding immigration policy of promoting family unity and contributed to the growing pool of immigrants who illegally entered the United States. Furthermore, special treatment for an industry requires difficult definitional distinctions to determine who should and who should not be eligible for the benefits of legalization.''
As a recommendation, commissioners unanimously stated, ''Worker-specific and/or industry-specific legalization programs should not be the basis of future immigration policy.''
In generalizing from our experience with the SAW Legalization Program, I would like to conclude with the following point. The nature of the documentation required will be a primary factor in determining the extent of fraud in any amnesty program. If the goal of the program is to legalize a work force, the level of fraud will, in large part, depend on the formality of the employer-employee relationship in that industry.
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If the program is prospective, such as a contact worker program in which participants can earn immigration credits, as was the never-implemented Replenishment Agricultural Worker Program, a program can be structured which will reduce the possibility of fraud. If amnesty is based on a retrospective reconstruction of a residence or employment history, one can establish a preponderance of proof standard that would minimize fraud.
A cautionary note, however, is that formal documents such as rental contracts and bank accounts are much more likely to be under a man's name than a woman's. Likewise, employment as household domestics, a common occupation for immigrant women, carries the same problem for employment verification as does farm work. Special consideration will need to be made so that any program does not discriminate against women who may be covered under future amnesty programs.
Again, thank you for the opportunity.
[The prepared statement of Ms. Heppel follows:]
PREPARED STATEMENT OF MONICA HEPPEL, PROFESSOR, MOUNT VERNON COLLEGE, AND RESEARCH DIRECTOR, INTER-AMERICAN INSTITUTE ON MIGRATION AND LABOR
Good morning Mr. Chairman, members of the Subcommittee. Thank you for this opportunity to testify on the issue of fraud in amnesty programs.
My name is Monica Heppel. I am currently Research Director of the Inter- American Institute on Migration and Labor in Washington, DC. As an anthropologist I have worked with immigration and farm labor issues for the past twenty years. During the implementation of the 1986 Immigration Reform and Control Act I worked as a volunteer to assist in the legalization of agricultural workers and served as Research Director of the Commission on Agricultural Workers established by IRCA. The Executive Director of the Institute, Luis Torres, also worked for the Commission, as General Counsel, and served as Director of Legalization at the U.S. Catholic Conference during the implementation of IRCA.
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The Special Agricultural Worker program or SAW provisions of IRCA, the program about which I have been asked to testify, was unique in a number of ways. It developed, at the last minute, as a compromise between agricultural employer and agricultural worker interests. Prior to the legalization compromise, the agricultural industry had been focused on expanding and simplifying a new, controversial, non-immigrant or contract worker program. The legalization compromise played a key role in ensuring Congressional passage of the Act.
I am going to concentrate on three general points about fraud and the Special Agricultural Worker provisions of IRCA that are relevant to a consideration of amnesty as one aspect of immigration policy. The first is a consideration of the purposes for which a particular amnesty program is designed and the intent of Congress in passing any such program. The second is the manner in which an amnesty program is implemented. And the third is a consideration of the consequences, intended and unintendedanticipated and unanticipated.
Before I discuss each point, I want to address the general issue of the extent of fraud within the SAW program. It often has been stated that there was a great deal of fraud in that program. Unfortunately, there is no clear and definitive answer regarding the extent of fraudulent SAW applications. The problem in arriving at such as an estimate is our uncertainty over the number of people employed as farmworkers. We do know that there were many more applicants who claimed to be eligible and applied for SAW legalization than anyone anticipated. However, since we then did not know (and still do not know) how many people were working in perishable crop agriculture, and we knew even less about their immigration status, our estimates could have been way off the mark. There are many opportunities when examining agricultural data for serious undercounts. Estimates of the number of workers which area based on production data are flawed based on the fact that such calculations ignore the prevalence of underemployment in the agricultural sector. We have no way of knowing whether 25 workers picked grapes for eight hours or 50 workers picked grapes for four hours. Likewise, estimates based on an analysis of Unemployment Insurance data are flawed by the fact that they rely on employer-generated data that list the social security number of the employee. Workers who share a number, a common practice, would not be counted. Thus, estimates of the number of workers thought likely to be eligible for SAW status is a poor indicator of the actual level of fraud in the program.
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In addition to knowing that many more workers applied than anyone estimated would be eligible, there are many anecdotes about clearly fraudulent applicantsones who knew very little, if anything about working in agriculture. But it is pure conjecture to give a percentage to the number of fraudulent applications in the SAW program.
I also want to point out that there are a number of different types of fraudulent applications that could have been filed under the SAW program. There were those by farmworkers who worked in agriculture during the qualifying period and for the required amount of time, but who were unable to document this and chose to use false documents to support their valid claim. There were applications by farmworkers who worked less that the required amount of time and supplemented their work history with fraudulent claims. There were those applications by farmworkers who usually worked in agriculture, but who for some reason were not employed in agriculture during the qualifying year. And there were applicants who had never worked in agriculture, but who did so after gaining legal status. Finally, there were those who had never worked in agriculture and had no intention of ever doing so.
To return to a more general discussion of fraud and amnesty programs, my first point has to do with the question of what purposes are trying to be served by a particular amnesty. The goal of the SAW program was to legalize the existing agricultural work force. This goal, combined with a recognition of the lack of employment records kept by many agricultural employers, drove the process through which workers were to gain amnesty. As a consequence of the nature of the industry, there was a very lenient standard of documentation required which could consist, for example, of letters from employers or affidavits from coworkers. The intent of this particular amnesty program to make sure that agricultural employers would be able to legalize their workers, combined with the nature of record-keeping in the industry by labor contractors as well as by fixed-site employers, made it very difficult to distinguish between legitimate and fraudulent applications. To add my own anecdote to the stories of SAW fraud, I was recently in Hidalgo, just north of Mexico City interviewing H-2A and H-2B workers for a current project on temporary contract workers. There I was told of how brokers came to the area selling entire employment histories, complete with documentation, as well as providing training on how to make it through the SAW legalization interview. Not only did many people who had never been to the United States purchase these documents and were granted legal status under the SAW program, but this started a migration stream from an area that previously had sent only negligible numbers of workers to the United States.
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Tied in with this goal of providing a legal work force to the agricultural industry was the need to acknowledge the reality that an entire industry was heavily dependent on an illegal work force and do something about it. A wide-spread legalization program was to wipe the slate clean so that we, as a country, could start over, presumably with the goal of no longer finding ourselves in this situation.
The second general point I want to address is the manner in which the administrative implementation of an amnesty program can affect the level of fraud. The decentralized aspect of the INS bureaucracy played a significant role in this. For example, in the SAW program, the central office of the INS issued directives, however these directives were applied differently by some district offices, resulting in much stricter standards in one part of the country than in another. Some of these were ultimately challenged in court and the INS was forced to reopen and ultimately approve many cases they had previously denied. The lack of standardization meant that farmworkers could decide to apply in one district instead of another, or could reapply in another district after being denied in one. Likewise, there was much confusion and vacillation over which crops actually provided qualifying employment, resulting in some workers being granted preliminary work authorization, then later having it withdrawn.
Specific to the SAW program was the decision, driven by agricultural employer requests, to allow workers to apply for temporary entry at a U.S. port of entry. This program allowed workers to make a ''credible'' claim of qualifying agricultural work at the Mexican-U.S. border in order to gain access, and three-months work authorization, for the purpose of obtaining their employment documentation. Approximately 100,000 of the 1.3 million SAW applicants chose this route.
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IRCA, including the SAW program, also made use of a range of not-for-profit organizations, called Qualified Designated Entities (QDEs), to assist immigrants in applying for legalization. While, again, there is no data about the relative rates of fraudulent applications through QDEs as opposed to individual applications, anecdotes would indicate that QDEs played a small yet important role in not only spreading the word throughout immigrant communities, but in assisting applicants, for a modest price, in preparing legitimate applications. This would be in contrast to a range of immigration brokers, from notarios to farm labor contractors, who took advantage of the lenient standards for documentation that the program entailed to go into the business of creating and selling fraudulent documents.
The third point I would like to mention, is the long term consequences of an amnesty program. An industry-specific legalization program such as the SAW program led to the situation in which many families had members with different immigration statuses. Some of this was ultimately resolved through other legalization measures. One consequence, however, of any amnesty program is that those who receive legal status are likely to petition as quickly as possible for family members to enter the United States legally.
While clearly a significant historical event, it is difficult to identify precisely what role the SAW program has played in shaping the farm labor market today. It enhanced the role of the farm labor contractor who was responsible for providing documentation (both legitimate and illegitimate) to many workers and it presaged a reliance on false documents that now characterizes the industry. What it did not do was force agricultural employers to improve wages and working conditions in order to retain their newly legalized work force, increase the use of labor-savings devices to reduce their need for workers, or improve labor management techniques to reduce worker turnover and stabilize their work forces.
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In reviewing the impact of the Special Agricultural Program of IRCA, the Commission on Agricultural Workers, a bipartisan, employer-dominated Commission, concluded:
In crafting the agricultural compromise that allowed IRCA to pass, Congress created an industry and worker-specific legalization program of unprecedented scale. It proved to be extremely difficult to implement the SAW program and to control for fraud within it. By legalizing workers but not their families, the SAW program deviated from the long-standing immigration policy of promoting family unity and contributed to the growing pool of immigrants who illegally enter the United States. Furthermore, special treatment for an industry requires difficult definitional distinctions to determine who should and who should not be eligible for the benefits of legalization.
As a recommendation, Commissioners unanimously stated:
Worker-specific and/or industry-specific legalization programs, as contained in IRCA, should not be the basis of future immigration policy.
I believe that it is important to keep in mind the unique features of IRCA's Special Agricultural Worker legalization program when considering the issue of fraud and amnesty programs. Using an amnesty program to provide an industry with a legal work force caused a range of programs and was determined to be unsound in terms of crafting immigration policy. The nature of the industry for which this program was designed, particularly the level of casual employment, combined with the paucity of good national data on agricultural employment, however, explains much about the perceptions and misperceptions of fraud in this particular amnesty program.
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In generalizing from our experience with the SAW legalization program, I would like to conclude with the following point. The nature of the documentation required will be a primary factor in determining the extent of fraud in any amnesty program. If the goal of a program is to legalize a work force, the level of fraud will, in large part, depend on the formality of the employer-employee relationship in that industry. If the program is prospective, such as a contract worker program in which participants can earn immigration credits (such as the never-implemented Replenishment Agricultural Worker program of IRCA), a program can be structured which will reduce the possibility of fraud. If amnesty is based on retrospective reconstruction of a residence and/or employment history, one can establish a ''preponderance of proof'' standard that would minimize fraud. A cautionary note on that, however, is that formal documents, such as rental contracts and bank accounts, are much more likely to be under a man's name. Likewise, employment as household domestics carries the same problem for employment verification as does farmwork. Special consideration will need to be made so that any program does not discriminate against women who may be covered under future amnesty programs.
Again, thank you for this opportunity to speak with you.
Mr. SMITH. Thank you, Professor.
Mr. Shaw, we will go to your testimony now and on the way there, thank you for your 33 years of service to the Department of Justice.
Mr. SHAW. Thank you, Mr. Chairman.
Page 133 PREV PAGE TOP OF DOCSTATEMENT OF JOHN F. SHAW, FORMER ASSISTANT COMMISSIONER FOR INVESTIGATIONS, IMMIGRATION AND NATURALIZATION SERVICE
Mr. SHAW. Good morning, Mr. Chairman and Congresswoman Jackson Lee.
I am honored to make these summary remarks and to submit my longer written statement as part of the record.
Mr. SMITH. Without objection, we will make both of your statements a part of the record.
Mr. SHAW. Before assuming responsibility for the Investigations Division from 1982 through 1983, I worked directly with Benedict Ferro, then the District Director in Buffalo, New York, on a headquarters-priority project to develop a detailed implementation plan in anticipation of the Legalization Program which was to be a major piece of successive legislative proposals from 1982 until finally passed as part of the Immigration Reform and Control Act of 1986, IRCA.
With the passage of the Simpson-Mazzoli bill in November 1986, the INS had at its disposal a comprehensive, detailed implementation plan which covered all avenues for accepting and adjudicating within a 1-year window the legalization applications of an estimated 2.3 million applicants likely to meet the law's residency requirements. Overall, INS received considerable plaudits and positive recognition for its aggressive preparation and successful implementation of the national legalization program.
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Nevertheless, the agency's performance was sorely tested by a significant incidence of fraud in the petition process. Part of the problem was the agency's need to efficiently process millions of petitions in an abbreviated time frame set by law and, at the same time, discourage fraud and ensure integrity in the adjudicatory process.
Congress did not help the cause by adding, without public hearings, Special Agricultural Worker (SAW) provisions in the final bill. The SAW Program substantially lowered the qualifications for a targeted population of workers involved in harvesting perishable crops.
The potential for fraud in the application process was particularly acute for the Investigations Division. On the one hand, Congress provided specific provisions of law and special funding to allow the examinations, or the service side of the house, exceptional hiring prerogatives and advance procurement authority, including funds for negotiating contracts for the reimbursement of voluntary agencies to act as a preliminary screening and advisory force for alien applicants who might be fearful of submitting their petitions directly to the INS.
Investigations, on the other hand, at the outset of legalization, had a staffing level of only 691 Special Agents nationwide to contend with the expected incidence of fraud and, at the same time, prepare for the implementation of what was to be the centerpiece of the Simpson-Mazzoli legislation, the new employer sanctions provisions of the law, and continue to support ongoing investigative activities as well.
For the decade preceding IRCA, Investigations had received no increase in staffing but had rather experienced a continuing decline in resources due to attrition. Although IRCA provided for 924 new positions for Investigations, the appropriations bill was only passed in the spring of 1987. This meant the recruitment, hiring and training of new investigators would be in the pipeline and not in the field for a year or more while the legalization application process was going full force and the indicators of fraud were already being reported by field offices.
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Kimberly A. Mattingly, writing for the National Journal in September 1998, summarized the peculiar pitfalls of INS trying to contend with the SAW Program as part of legalization:
''No one was sure,'' she noted, ''how many illegal aliens worked in INS agriculture in a year. Although most estimates ranged from 200,000 to 350,000, still today, more than 2 months before the application deadline, there are more than 830,000 applications for amnesty under the SAW Program. About 1 million applications are expected by November, according to the INSINS officials say the fraudby some estimates at nearly 30 percent of applicantsis difficult to control without also rejecting qualified workers whose documentation is often just as scarce.
Under the law, after applicants present what appears to be valid preliminary documentation, such as a work affidavit from an employer, they automatically received a stay of deportation and temporary work authorization. Unlike the general amnesty program, the burden of proof is on the INS.''
The limitations or challenges, if you will, that the Investigations Division experienced with IRCA's legalization program are illustrative of the systemic problems encountered whenever INS seeks to implement a broad-based benefit dispensing program. The problem with INS is not the lack of good intentions or lofty motives in extending these benefit programs, but rather its reliance on an inadequate support structure, including the capability for cross-referencing name check indices and for automated, accurate, real time record support for tracking applicants and for issuing secure tamper-proof documents. These capabilities simply do not exist as reliable mechanisms within the Service.
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Finally, these benefit programs tend to be instituted with a lack of any coherent strategy to ensure the eventual removal of unqualified applicants upon the termination of their legal status.
I would hope that the Congress, especially the Committee on the Judiciary, Subcommittee on Immigration and Claims, shares my expectation, and, yes, my sense of frustration, in waiting for INS senior management to propose, seek funding for, and enthusiastically endorse and implement a cohesive, fully integrated Interior Enforcement Strategy, one that finally recognizes all of the critical needs of Investigations, (i.e.) the Investigations Division of INS, not antifraud measures alone, vis-a-vis the legitimate, parallel needs of the Border Patrol, while recognizing the unique authority and resource requirements of Investigations, the sensitivities, complexities and constitutional restrictions on enforcement operations in the interior, and finally, the professional competence, fidelity and dedication of the long overlooked coterie of special agents of the INS. They are a special class deserving of the informed support of the Congress of the United States.
[The prepared statement of Mr. Shaw follows:]
PREPARED STATEMENT OF JOHN F. SHAW, FORMER ASSISTANT COMMISSIONER FOR INVESTIGATIONS, IMMIGRATION AND NATURALIZATION SERVICE
Good morning, Mr. Chairman and distinguished members of the Subcommittee. I am honored to submit this written statement in support of my oral testimony on these important issues which go to the heart of the integrity of our immigration laws and practices. On January 2 of this year, I retired from government service, thirty-six years all told: with three years commissioned service in the United States Marine Corps and thirty-three years in the Department of Justice. From 1984 through 1995, I was the Assistant Commissioner for the Investigations Division with program oversight responsibilities for criminal alien matters, fraud, alien smuggling, work site enforcement, and INS participation in joint inter-agency task force programs, such as the Organized Crime Drug Enforcement Task Force and the Criminal Division's Organized Crime and Racketeering Strike Force.
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Before assuming the responsibilities for the Investigations Division, from 1982 through 1983, I worked directly with Benedict Ferro, then the District Director in Buffalo, New York, on a Headquarters priority project to develop a detailed implementation plan for a Legalization Program which was a major piece of successive legislative proposals from 1982 until finally passed as the Immigration Reform and Control Act of 1986 (IRCA). With the passage of the Simpson-Mazzoli bill in November 1986, the INS had at its disposal a comprehensive implementation plan which covered all avenues for accepting and adjudicating, within a one year window, the legalization applications of an estimated 2.3 million applicants likely to meet the law's residency requirements. Overall, INS received considerable plaudits and positive recognition for its aggressive preparation and successful implementation of a national legalization program. Nevertheless, the agency's performance was sorely tested by a significant incidence of fraud in the petition process. Part of the problem was the agency's need to efficiently process millions of petitions in an abbreviated time frame, and at the same time, discourage fraud and ensure integrity in the adjudicatory process. Congress did not help the cause by adding, without public hearings, Special Agricultural Workers (SAW) provisions in the final bill. The SAW program substantially lowered the qualifications for a targeted population of workers involved in the harvesting of perishable crops.
The potential for fraud in the application process was particularly acute for the Investigations Division. On the one hand, Congress provided specific provisions of law and special funding to allow the examinations, or the service side of the house, exceptional hiring prerogatives, including funds for the reimbursement of voluntary agencies to act as a preliminary screening and advisory force for alien applicants who might be fearful of submitting their petitions directly to the INS. Investigations, on the other hand, at the outset of Legalization had a staffing level of only 691 Special Agents nationwide to contend with the expected incidence of fraud, prepare for the implementation of the new employer sanctions provisions of law, and, at the same time, continue to support on-going investigative activities. For the decade preceding IRCA, Investigations had received no increase in staffing, but rather experienced a continuing decline in resources due to attrition. Although IRCA provided for 924 new positions for Investigations, the appropriation bill was only passed in the spring of 1987. This meant the recruitment, hiring, and training of new investigators would be in the pipeline, and not in the field, for a year or more, while the legalization application process was going full force and the indicators of fraud were already being reported by field offices.
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Kimberly A. Mattingly, writing for the National Journal on September 24, 1988, summarized the peculiar pitfalls of INS trying to handle the SAW program as part of Legalization:
''No one was sure in 1986 how many illegal aliens worked in U.S. agriculture in a year. Although most estimates ranged from 200,000350,000. Today, still more than two months before the application deadline, more than 830,000 have applied for amnesty under the SAW program. About a million applicants are expected by November, according to the Immigration and Naturalization Service (INS).INS officials say the fraudby some estimates at nearly 30 percent of applicantsis difficult to control without also rejecting qualified workers, whose documentation is often just as scarce. Under the law, after applicants present what appears to be valid preliminary documentation, such as a work affidavit from an employer, they automatically receive a stay of deportation and temporary work authorization. Unlike the general amnesty program, the burden of proof is on the INS.
[An] INS deputy assistant commissioner said some labor contractors 'will sell [bogus] work affidavits to whoever's willing to pay the fee,' And with only 850 (sic) investigators nationwide, the INS does not have the manpower or the money to effectively counter fraud, he said.''
The obstacles, or challenges, if you will, that the Investigations Division experienced with IRCA's Legalization program are illustrative of the systemic problems encountered whenever INS seeks to implement a broad based benefit-dispensing program, such as adjudicating voluminous naturalization petitions under the patriotic banner of Citizenship USA; expanding the breadth of the visa waiver program to marginally deserving countries; or initiating virtually open-ended Temporary Protected Status (TPS) programs for countries added to the ever expanding queue. From my enforcement experience in Investigations, I do not question the altruism or humanitarian motives behind these initiatives, all of which afford priceless benefitsmany even permanent onesto the recipients. Rather, the problem with INS is not the lack of good intentions or lofty motives in extending these benefit programs, but rather its reliance on an inadequate support structure for issuing secure, tamper proof documents, including documents for extensions of TPS, and the lack of a coherent strategy to ensure the eventual removal of unqualified aliens upon the termination of their status. The moral of the story is that INS senior management, whether in furtherance of some political mandate or else propelled by Congressional or advocacy group pressure, invariably promises more than it is capable of delivering. And when failure ensues from the effort, as in the case of Citizenship USA, then management sees fit to place convenient blame on district field managers for their inability to absorb the sizeable workloads, or assigned quotas, in an unrealistic time frame. INS top management needs to start acknowledging responsibility for its own advance planning inadequacies. It needs to examine more closely the root causes of its inability to ensure both administrative efficiency and program integrity in launching large scale benefit dispensing initiatives, without first providing the impacted district offices the enabling resources and system support to accomplish their task.
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Congress should certainly realize that humanitarian programs, such as TPS, place an additional burden not only on the INS adjudications and records functions, but on its enforcement components as well, particularly on Investigations. TPS qualified applicants must be issued INS identification documents through the initial application process and these documents establish the expiration date for their period of temporary residency. The initiation of TPS programs, almost from the date of their announcement, if not before, invariably induces unqualified nationals from the same country, particularly one whose borders are proximate to those of the United States, to enter surreptitiously in order to enjoy the economic benefits of the program, principally, work authorization and freedom of movement in this country. This phenomenon places additional pressure on the Border Patrol in its efforts to prevent illegal entry across our land borders. If Congress further extends TPS programs beyond their initial duration, INS must then assume the additional administrative responsibility of reissuing, or extending the terms, of the aliens' identification documents. Such an adjustment may compromise the security of the INS' document issuance system. Once INS allows documents to remain in the aliens' possession with expired dates, this internal administrative accommodation to alleviate in-house workload can lead to later problems in efforts to enforce the law, determine the actual status of an alien in possession of an INS document, and eventually, in efforts to locate and remove the alien upon the termination of TPS status. If the INS document-issuance system allows TPS aliens to retain documents with expired dates, as has happened in the past, both employers and INS investigators experience considerable confusion in ensuring compliance with the employer sanction provisions of law in Worksite Enforcement operations. Neither the employer nor the investigator in the first instance can establish the true status of the alien with an expired card.
However, the real burden in INS instituting, or subsequently extending, TPS program benefits must be shouldered by the Investigations Division. Investigations is already charged with a formidable array of enforcement priorities and responsibilities that simply overtax its capacity to perform effectively in meeting the expectations of the Congress, the public at large, and state and local law enforcement in general. Besides the need to conduct long-term, labor-intensive complex investigations involving the prosecution of document fraud and alien smuggling operations, the INS Special Agent must somehow show a level of responsiveness to local law enforcement to assist in the identification, custody, administrative processing and removal of out-of-status aliens, as well as those committing crimes. TPS status candidates and would be TPS status seekers fall into the Investigations' mix, as well. And, in a climate of scarce detention space, the administrative or out-of-status violator, including the expired TPS alien, is not likely to warrant being held in lieu of a criminal alien. The realization of limited enforcement resources in the interior, an array of competing Investigations priorities, and the limitations of detention space, paint a discouraging picture for the INS investigator intent on doing his job; that is, denying the extension of immigration benefits to those not legally entitled. This situation tends to support the immigration maxims: ''If INS cannot detain an alien during deportation proceedings, it is unlikely to be able to successfully remove him from the country'' and ''Once an illegal alien avoids apprehension by the Border Patrol, the chances of his detection and removal from the interior are significantly in his favor.''
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An article in the Raleigh (North Carolina) News and Observer in November, 1998, I believe, accurately depicts the current state of enforcement of the immigration laws in the interior. Under the title ''Law vs. Reality,'' journalists Ned Glascock and Craig Whitlock wrote:
''In reality, the INS still strikes little fear in illegal immigration here. . . . After leaving his home in Mexico in 1996, [the illegal immigrant], age 42, now a landscaper in Durham, was caught three times in a single month after crossing the Texas border with a smuggler. Yet when he made it to North Carolina on the fourth try, he was in the clear. . . . 'In North Carolina, immigration authorities pose no problems,' [according to the immigrant] . . . As Congress boosted the Washington-based agency's budget 163 percent in six years, the enforcement priority has been clear. Each year through 2002, the INS is to deploy an additional 1,000 Border Patrol agents, for a total of 12,000. Yet almost half the illegal-entry problem has nothing to do with border enforcement. The INS' own statistics show that four of every 10 undocumented immigrants enter the country legallyusually on short term tourist or work visasand then stay.''
In its determined efforts to establish control of the border by tightening security on the perimeter, Congress has seemingly ignored the critical, complementary roles and responsibilities of Interior Enforcement . . . and these fall mainly on the shoulders of Investigations. I believe that the concept of Interior Enforcement, supported by a well articulated strategy document, ought to be as familiar in the nomenclature of immigration enforcement as the concept, or term, Border Control. Although, I must admit that even in-house at INS, the Commissioner has said that Interior Enforcement is a term of usage invented by Investigations and devoid of meaning.
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As far back as December 1991, the Investigations Division circulated an analytical study in-house entitled ''Workload Distribution and Resource Allocation Report.'' This report represented Investigations' efforts at that time to measure its workload in six distinct areas of program activity, and to assess the minimum resource needs for operating effectively in these six areas: Criminal Aliens, Employer Sanctions, Fraud, Organized Crime Drug Enforcement Task Force, Anti-Smuggling, and general investigations support to other INS programs. The analysis of workload data and statistical productivity data found that 1,157 funded officer work years were required over and above the then on-duty strength of 916 non-supervisory criminal investigators, for a total of 2,073 non-supervisory street agents in Investigations. Investigations recognized the magnitude of seeking such an enhancement in a single year regardless of the merits of the justification. Investigations thus recommended that the service pursue a goal of reaching this resource level over a five year period, by recruiting, hiring, and training 231 new agents per year for five years. That completed study probably exists today only as an archival document in INS, but I remember it well for the general lack of in-house support through subsequent budget year cycles. The report was simply put on a shelf and became the victim of successive tight budget year planning marks by the Department and Office of Management and the Budget. Investigations' staffing continued to remain static through 1994, when the Clinton Administration first discovered the incarcerated criminal alien problem. In the first year of the Administration, the Governors of the seven states housing the largest number of incarcerated criminal aliens appeared at the White House, either in person or through their representatives, to exert pressure on the Federal government for their serious criminal alien problem. Investigations had been working cooperatively for several years with key state correctional representatives of the five states having the largest criminal alien populations as part of a Federal/State planning group, but without the ability to sufficiently satisfy their funding and manpower requests. Then, in the fall of 1994, Investigations Headquarters was suddenly asked what initiatives it could undertake, in conjunction with the Detention and Deportation (DD&P) program, with $300 million added to the FY 1995 agency budget, for criminal alien removals and worksite enforcement. Investigations and DD&P, within the allowed 48 hour planning period, put together program enhancements, identical to those unsupported in years past, which provided momentum to interior enforcement programs, at least in the areas of criminal alien removals and work site enforcement operations. The budget enhancement in FY 1995 provided the first real impetus to interior enforcement activities that had been largely ignored since the one-time IRCA infusion of resources for Investigations in the Spring of 1987. Again, one year later, in the course of reformulating the FY 1996 budget, INS top management asked what positive program results Investigations and DD&P could predict with an additional enhancement of $150$200 million for criminal alien removals and work site enforcement. The budget response was provided within 24 hours, and the result was a further bolstering of Interior Enforcement activities for which prior INS/Department administrations had consistently failed to seek funding via the annual budget planning process.
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In May 1995, I met personally with Commissioner Meissner to discuss the status of Investigations, competing pressures on the program, static funding levels, and the transparent operational limitations of the program. I referred to the 1991 Workload Distribution and Resource Allocation Report that she had been provided during her transition. The Commissioner did not recall having seen the study, but expressed interest in it. I provided the Commissioner another copy the same day, which she said she would review with interest and provide me her comments and feedback. I never heard anything further from Mrs. Meissner on the report. I am well aware, however, that for the last three years the Offices of Enforcement/Programs and Field Operations have undertaken the task of formulating an integrated Interior Enforcement Strategy, the implementation of which would more effectively unify the enforcement activities of INS and allow an appropriate emphasis to be placed on the enforcement of immigration laws in the non-border areas of the United States. But such a strategy, even when formulated, will only succeed if it is supported adequately by staffing increases and resource enhancements in the field. INS' Interior Enforcement Strategy has been in gestation for at least three years under the current Commissioner. In reality, the critical pieces of that strategy owe their origins to the 1991 report; thus, the strategy has been in gestation for at least eight years. The prospects for that strategy's release and publication, however, are not optimistic. Immigration advocacy groups exert a strong interest in areas of INS policy formulation, on the enforcement side as well as on the benefits side, and they are not prone to endorse strong enforcement actions away from the land borders to deny aliens immigration benefits. Indeed, last year in addressing the strategy planning group as it completed its report on Interior Enforcement Strategy, under the aegis of LMI contractor support, the Executive Associate Commissioner for Policy and Plans noted that there are operational sensitivities to take into account and no strong public consensus for INS enforcement activities in the interior of the United States. INS top management remains reticent and lukewarm on placing any emphasis on the development of a fully integrated, and funded, Interior Enforcement Strategy.
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I share the frustration of the Congress, especially the Committee on the Judiciary, Subcommittee on Immigration and Claims, in waiting for INS senior management to propose, seek funding for, and enthusiastically endorse and implement a cohesive, fully integrated Interior Enforcement Strategyone that finally recognizes the critical needs of Investigations vis-à-vis the legitimate, parallel needs of the Border Patrol, the unique authority and resource requirements of Investigations, the sensitivities, complexities and Constitutional restrictions on enforcement operations in the interior, and lastly, the professional competence, fidelity and dedication of the long-overlooked coterie of Special Agents of the INS. They are a special class deserving of the informed support of the Congress of the United States.
Mr. SMITH. Thank you, Mr. Shaw.
Based upon your experience, and you have a lot of it that is very applicable, do you feel the INS is taking sufficient steps to avoid the type of fraud that occurred in 1986, are they taking steps to avoid that kind of fraud today?
Mr. SHAW. I have seen no strong indication that INS is any better prepared today, Mr. Chairman.
Mr. SMITH. To your knowledge, has the INS ever made any effort to deport individuals who have used fraudulent means to wrongly obtain benefits? Is there a systematic effort to return those folks home?
Page 144 PREV PAGE TOP OF DOC Mr. SHAW. I believe in the last several years, INS has made some adjustments and attempted to levy requirements on the Investigations' units, or investigative resources in the field, to report in the process of plea bargaining with fraud facilitators, with vendors, and with those who have been convicted of massive immigration fraud and attempted to obtain the names of all the applicants to whom they've issued fraudulent documents.
Mr. SMITH. But what happens to those applicants who have used fraudulent documents?
Mr. SHAW. Very little. Although there is a reporting system that has been recently introduced following an Inspector General (IG) finding, the INS capability is not there, and the ability today or the interest in following up on those cases simply exceeds the Service's operational capabilities.
Mr. SMITH. Thank you, Mr. Shaw.
The gentlelady from Texas, we have a vote, as you know, and I want to leave time for the other members to ask questions.
Ms. JACKSON LEE. Thank you and I will share your time so that we can yield to Mr. Berman who has comments he would like to make.
Mr. Shaw, following up on your last response, is the fraud question fixable and in what context?
Page 145 PREV PAGE TOP OF DOC Mr. SHAW. Fraud in the Immigration Service?
Ms. JACKSON LEE. This issue in particular.
Mr. SHAW. Counterfraud measures need to be made a priority and backed up with resources. Fraud in the benefit dispensing process and in according benefits under the law. After the fact, after those benefits have been accorded, there is simply no follow through. These types of cases have no jury appeal; they are not likely to fall within the purview of prosecutorial discretion of U.S. attorneys; and they are going to have to be run down by INS on a case by case basis.
Ms. JACKSON LEE. Would you do that on the employer or on the industry as well as the employee?
Mr. SHAW. Would you repeat that, please?
Ms. JACKSON LEE. Would you do that fixing and prosecutorial structure for the employer and the employee, not just on the employee, the worker?
Mr. SHAW. The problem with the employer is his reliance on INS' system of identification. INS has to have a more reliable system for issuing documents which determine the extent or duration of the benefit it is extending under the document, and the ability to track the expiration dates of the persons holding expired documents at the end of whatever the benefit period is. I don't think they have come very far along those lines.
Page 146 PREV PAGE TOP OF DOC Ms. JACKSON LEE. So there needs to be prioritization of resources?
Mr. SHAW. Prioritization of resources and a secure system of issuing documents as reliable identification. We cause as much a problem for employers today as perhaps we do for anyone else in trying to enforce immigration law. The whole concept of enforcement of Employer Sanctions is to have a reliable system of documents, so that you can hold the employer accountable to making a good faith effort to do his proper recordation so that then when those records are produced and, upon review, we can make a determination whether he knowingly violated the system.
Ms. JACKSON LEE. Thank you very much, Mr. Shaw.
Ms. Heppel, let me run through my question and if you can give me as close to a yes or no answer as possible.
On the industry-driven programsyou were in Mexico recently and saw something that was stressfulrecruitment. Can we work within the system and make this work? Is this something that modern America needs?
Ms. HEPPEL. I am not following, I am sorry.
Ms. JACKSON LEE. Can we work within the system for these industry-driven programs?
Page 147 PREV PAGE TOP OF DOC Ms. HEPPEL. I think industry-driven programs are a mistake.
Ms. JACKSON LEE. That is all I need at this point.
Mr. SMITH. The gentleman from California, Mr. Berman?
Mr. BERMAN. Thank you, Mr. Chairman.
I am in another subcommittee where I am the ranking member but particularly on the SAW Program, and I haven't had a chance to study Mr. Shaw's testimony in great detail, but the SAW Program was, in a way, a industry-driven legalization program. It was in lieu of their effort to push a massive, huge, enormous Bracero program.
There were allegations of fraud but the methodology for some of those allegations is very tenuous. First of all, it turns out there were a lot more undocumented farm workers in this country than estimated at the time the bill passed. So the higher number of legalizations was the result not in and itself of fraud but of the fact that the universe of people who qualified was much larger than was originally anticipated. Remember, the only requirement basically was they were all here illegally, they were all using phoney documents, it was whether they worked 90 days in agriculture.
In an industry where they are frequently recruited by farm labor contractors, knowing that they are undocumented, where there is never any paper verification of their work, where they are frequently paid in cash, where frequently aliases are used, this was the kind of program from which we were trying to do these adjudications.
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The assumption that the large number of people who were legalized in this program were not agricultural workers who had worked 90 days in agriculture I think is massively overblown and overstated when you look at the factsthe underemployment of farm workers, the large number undocumented in the universe, the fact that many of these people were never given a paper trail to establish these things and the law was written with that understanding is why you had the large number.
I don't discount there were some operators in this thing who ran a scam operation. Hopefully we caught some of them and exposed them, but the notion that the simple increase in the number, I think 1.1 million legalized under this program, something like that, were just a function of fraud, is just an erroneous assumption and should not be assumed.
One last point. Migrant laborers frequently harvest the crops without knowledge of what farm they are working on, nor who the crop owner is. They might know their crew leader only by sight or perhaps by first name or the color of his van or truck. They are likely to be paid only in cash without paychecks or other documentary evidence. These were the kind of folks we were dealing with then and by the way, which have been, to some extent, recreated now in this new world.
Mr. SHAW. If I can respond to that, Mr. Berman.
Mr. SMITH. Mr. Shaw, can you be very brief? Otherwise, we're going to be late for this vote.
Page 149 PREV PAGE TOP OF DOC Mr. SHAW. We had an operation in South Florida called Operation Cucumber. It was an attempt to focus on the individual violator, those who had submitted false affidavits, not the vendors, not simply fraud facilitators. We had a very active district director at that time who went past the U.S. attorney, finally got approval for prosecution of 35 of those cases. The Federal judge threw out all those cases almost at the point of inception. He said, INS, you must go after the violator. These people can't read or write or understand English; they can't comprehend your documents; they have all submitted false affidavits, but they don't even know what they have submitted.
That pretty well gave INS the strong message of where it had to concentrate its limited resources in order to counteract fraud in the legalization process.
Mr. BERMAN. A judge found that an INS-driven prosecution wasn't justified and from that, you don't challenge the notion of widespread fraud; you just think the judge was screwing up things. I'm not sure about.
Mr. SHAW. There were many indications and strong statistics accumulated relative to fraud in the SAW's program. And there were successful prosecutions, but mostly of vendors and facilitators.
Mr. BERMAN. I have no doubt there was fraud in that program. I have no doubt there was fraud in the other legalization program. I have no doubt there is fraud in the documents presented now to people under employer sanctions. All of these things, fraud exists.
Mr. SHAW. The point I am making is when you use Federal prosecutorial resources to go after the individual applicant who can't read, write or understand English, he has either a good faith defense or low jury appeal for the Government trying to seek a conviction on the basis that he knowingly violated the law in preparing and accepting that package of fraudulent documents that he bought.
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Mr. BERMAN. I would suggest most of the fraud and the way to focus on the fraud is to get the person who is cashing in on the distribution of the documents, the submission of the applications, the effort to bring a bunch of people who weren't qualified or designed for that program in under that program. That is the most effective way to stamp out the problem.
Mr. SMITH. Thank you, Mr. Berman.
Thank you, Mr. Shaw. We appreciate both of you being here today.
We stand adjourned with this one announcement that we are going to have a hearing next week as well. The subject of next week's hearing will be the impact of our immigration policy on blue collar workers in America. We hope to have you back for that.
We stand adjourned.
[The prepared statement of Ms. Lofgren, submitted for the record, follows:]
PREPARED STATEMENT OF HON. ZOE LOFGREN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA
I sincerely regret that I am unable to attend this hearing in its entirety. As the lead Democrat on the Security and Freedom through Encryption Act, my duties on the Intellectual Property Subcommittee demand that I spend most of this morning in that subcommittee. I know that Mr. Goodlatte, as the lead Republican will be spending most of his morning there as well.
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I would request of the Chairman that in the future we try to avoid the conflict, since seven Members, a majority of the Immigration Subcommittee, are also Members of the Intellectual Property Subcommittee. My colleague from California, Mr. Berman, is the Ranking Member of the Intellectual Property Subcommittee. I am sure that my colleagues on the other side, Mr. Goodlatte, Mr. Gallegley, Mr. Pease, Mr. Cannon and Ms. Bono must feel similarly torn about their desire to attend and fulfill their obligations to both subcommittees.
I have great respect for the legislative process, and the importance of the hearings on all of the issues before this subcommittee. Since you have chosen to call this hearing and these witnesses, I am certain that you have an interest in having your subcommittee in attendance. I do understand that sometimes meeting will coincide, but I am sure that we all agree that this should be the exception as opposed to the rule.
On the issue before this committee todaytemporary protected status has provided much needed relief to on a temporary basis to certain groups escaping armed conflict, natural disaster, or extraordinary conditions. Since its inception, TPS has been used judiciously and given the world situation, relatively infrequently. Since 1990, the Attorney General has designated TPS to 14 countries. I understand that the Chairman suspects abuse in the program. I welcome the panel's thoughts on the TPS designation as well as their thoughts on fraud in prior amnesty programs. Your contributions on how we as a subcommittee can act to improve these programs while ensuring that the deserving are not indiscriminately locked out will be of great value.
[Whereupon, at 12:10 p.m., the subcommittee was adjourned, to reconvene at the call of the Chair.]
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A P P E N D I X
Material Submitted for the Hearing Record
[Note: The Investigation Division of the U.S. Immigration and Naturalization Service's submitted report, ''Workload Distribution and Resource Allocation,'' dated December 1991, is on file with the House Judiciary Committee's Subcommittee on Immigration and Claims.]
(Footnote 1 return)
Lawyers Committee for Human Rights, A Preliminary Discussion of Considerations in Enacting Temporary Refuge Legislation (July 1987).
(Footnote 2 return)
See, e.g., Lawyers Committee for Human Rights, Comments on Interim Regulations Regarding Temporary Protected Status (February 6, 1991), submitted to the Department of Justice; Lawyers Committee for Human Rights, Handbook on Obtaining Temporary Protected Status (April 1991); Lawyers Committee for Human Rights, Temporary Protected Status in the United States: An Assessment of a New Humanitarian Remedy (September 1992); Lawyers Committee for Human Rights, General Principles Relating to the Promotion of Refugee Repatriation (August 1994); Lawyers Committee for Human Rights, In the National Interest: 1996 Quadrennial Report on Human Rights and U.S. Foreign Policy, 5456, 59 (1996).
(Footnote 3 return)
See generally, U.S. Committee for Refugees, Filling the Gap: Temporary Protected Status (December 1994) (hereinafter, ''USCR''). This paper provides an excellent analysis of TPS and the present testimony draws extensively from it.
(Footnote 4 return)
UNHCR Executive Committee Conclusion No. 19 (XXXI) Temporary Refuge (1980) (Executive Committee31st Session).
(Footnote 5 return)
(Footnote 6 return)
A national is defined by INA section 101(a)(21) as ''a person owing permanent allegiance to a state.'' Usually, such status is conferred by reference to the state in which one is born and/or the status of one's parents.
(Footnote 7 return)
This does not include ''brief, casual and innocent departures.''
(Footnote 8 return)
Eligibility for TPS is not affected by certain grounds of inadmissibility inherent in irregular movement or entry. Other grounds for inadmissibility apply but may be waived for humanitarian purposes.
(Footnote 9 return)
Lawyers Committee for Human Rights, Temporary Protected Status in the United States: An Assessment of a New Humanitarian Remedy, at 16 (September 1992).
(Footnote 10 return)
USCR at 4.