SPEAKERS CONTENTS INSERTS
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58–800
1999
NATURALIZATION REFORM ACT OF 1997
HEARING
BEFORE THE
SUBCOMMITTEE ON
IMMIGRATION AND CLAIMS
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTH CONGRESS
SECOND SESSION
MARCH 5, 1998
ON
H.R. 2837
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Serial No. 128
Printed 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 SMITH, Texas
STEVEN SCHIFF, New Mexico
ELTON GALLEGLY, California
CHARLES T. CANADY, Florida
BOB INGLIS, South Carolina
BOB GOODLATTE, Virginia
STEPHEN E. BUYER, Indiana
ED BRYANT, Tennessee
STEVE CHABOT, Ohio
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
ASA HUTCHINSON, Arkansas
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EDWARD A. PEASE, Indiana
CHRIS CANNON, Utah
JAMES E. ROGAN, California
JOHN CONYERS, Jr., Michigan
BARNEY FRANK, Massachusetts
CHARLES E. SCHUMER, New York
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
STEVEN R. ROTHMAN, New Jersey
THOMAS E. MOONEY, Chief of Staff-General Counsel
JULIAN EPSTEIN, Minority Staff Director
Subcommittee on Immigration and Claims
LAMAR S. SMITH, Texas, Chairman
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ELTON GALLEGLY, California
WILLIAM L. JENKINS, Tennessee
EDWARD A. PEASE, Indiana
CHRIS CANNON, Utah
ED BRYANT, Tennessee
JAMES E. ROGAN, California
MELVIN L. WATT, North Carolina
CHARLES E. SCHUMER, New York
HOWARD L. BERMAN, California
ZOE LOFGREN, California
ROBERT WEXLER, Florida
CORDIA A. STROM, Chief Counsel
EDWARD R. GRANT, Counsel
GEORGE FISHMAN, Counsel
MARTINA HONE, Minority Counsel
C O N T E N T S
HEARING DATE
March 5, 1998
TEXT OF AMENDMENT
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Amendment in the Nature of a Substitute to H.R. 2837: Offered by Mr. Smith of Texas
OPENING STATEMENT
Smith, Hon. Lamar, a Representative in Congress from the State of Texas, and chairman, Subcommittee on Immigration and Claims
WITNESSES
Estrada, Richard, Dallas Morning News, Former Member of the U.S. Commission on Immigration Reform
Hetfield, Mark, Project Coordinator, Hebrew Immigrant Aid Society
Hill, Robert, Venable, Baetjer, Howard and Civiletti, LLP, Former Member of the U.S. Commission on Immigration Reform
Jenks, Rosemary, Center for Immigration Studies
Teitelbaum, Michael, Alfred P. Sloan Foundation
Virtue, Paul, General Counsel, Immigration and Naturalization Service
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
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Breakout of the life cycle Records Center Project costs (RAPID)
Budget Rationale and the Importance of Site Selection
Estrada, Richard, Dallas Morning News, Former Member of the U.S. Commission on Immigration Reform: Prepared statement
Hetfield, Mark, Project Coordinator, Hebrew Immigrant Aid Society: Prepared statement
Hill, Robert, Venable, Baetjer, Howard and Civiletti, LLP, Former Member of the U.S. Commission on Immigration Reform: Prepared statement
Jenks, Rosemary, Center for Immigration Studies: Prepared statement
The Mexican American Legal Defense and Educational Fund: Prepared statement
The National Asian Pacific American Legal Consortium: Prepared statement
National Records Center Funding: Prepared statement
Teitelbaum, Michael, Alfred P. Sloan Foundation: Prepared statement
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Virtue, Paul, General Counsel, Immigration and Naturalization Service: Prepared statement
Watt, Melvin L., a Representative in Congress from the State of North Carolina: Prepared statement
NATURALIZATION REFORM ACT OF 1997
THURSDAY, MARCH 5, 1998
House of Representatives,
Subcommittee on Immigration
and Claims,
Committee on the Judiciary,
Washington, DC.
The subcommittee met, pursuant to call, at 9:45 a.m., in Room 2237, Rayburn House Office Building, Honorable Lamar S. Smith (chairman of the committee) presiding.
Present: Representatives Elton Gallegly, Edward A. Pease, Chris Cannon, Ed Bryant, Melvin L. Watt, and Howard L. Berman.
Staff Present: Jim Wilon, Counsel, Judy Knott, Staff Assistant and Martina Hone, Minority Counsel.
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OPENING STATEMENT OF CHAIRMAN SMITH
Mr. SMITH. The hearing today is on H.R. 2837, the Naturalization Reform Act of 1998. I will have an opening statement and then recognize other Members if they have opening statements.
Two years ago, the United States' naturalization process self-destructed. The results of the Citizenship U.S.A. Program have been summed up best by Attorney General Reno who called it ''a catastrophe.''
After almost 2 years of sustained Congressional oversight, Congress is prepared to act on meaningful legislative reform. Senator Abraham, Chairman of the Senate Immigration Subcommittee, and I have introduced this bill to help ensure the integrity of the American citizenship process.
Under pressure from the Administration, the INS granted citizenship to 1,050,000 people from September 1995 to September 1996, including 750,000 in the last 6 months of that period. This was 5 times the normal rate, resulting in a complete breakdown of legal safeguards that are supposed to be enforced. A recent Pete Marwick sample audit found that more than 90-percent of the application files, that would be more than 950,000 cases, contained errors of some sort.
The biggest single problem was the failure to conduct a criminal background check, so that at least 11,500 aliens with criminal records were improperly given United States citizenship.
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The Naturalization Reform Act of 1998 is tailored to address the abuses that plagued the naturalization system. The INS will have to get fingerprints from reliable law enforcement agencies and complete background checks on all applicants. The INS has ignored its own policies and regulations in this area, so, we are writing it into the statute.
We are also making sure that aliens who are deportable because of their criminal conduct are actually deported, instead of being granted citizenship because the agency's left hand does not know what the right hand is doing.
The INS is now attempting to revoke citizenship in more than 6,000 cases because of felony records, so we are clarifying the law to put the agency on a more solid legal ground. Many people were given citizenship by lying about their criminal records, which is ground for denaturalization, so we are explicitly placing in the statute the common law principles of willful and material misrepresentation. We are also extending the statute of limitations on INS denaturalization from 2 years to 5 years, because some of those 6,000 felons are already being allowed to stay in our neighborhoods instead of being deported.
For citizenship testing, we are requiring INS to standardize the English and Civics Test so that every applicant is treated equally. Because many of the private testing organizations hired by INS engaged in rampant cheating, we are restricting the testing process to INS or one closely-supervised nationwide contractor, in accordance with the final recommendation of the Jordan Commission. And if fraudulent testing occurs, it will now require a re-test before citizenship can be granted.
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Under Citizenship U.S.A., INS officers often had to conduct naturalization interviews in 6 minutes or less, so they were unable to do a proper case review. Even worse, INS management considered eliminating the interviews just to speed up the process. The Naturalization Reform Act of 1998 mandates personal interviews to verify eligibility for naturalization and adjustment of status, and the naturalization interview must check for English language ability, criminal history, and fraud or misrepresentation in the application. Like the background checks, these interview requirements are not new, but the INS failed to enforce its own policies and regulations, and we are writing it into the statute.
New citizens have to turn in their green cards before they get their Certificate of Naturalization, but the INS sometimes failed to enforce this under Citizenship U.S.A., most notably in a Chicago ceremony where 8,000 naturalization certificates were given out without collecting the green cards. Given the high street value of a green card, this was an invitation to rampant document fraud. Our bill requires resident aliens to notify INS if their green cards are lost, stolen, or destroyed, and it also requires the turn-in of green cards before naturalization certificates are given out. If an alien shows up at a naturalization ceremony without his green card, he will have to find the green card or submit an affidavit explaining why he cannot and then wait 30 days to give the INS a chance to investigate.
Unfortunately, naturalization problems persisted even after Citizenship U.S.A. For example, in November 1996, after the election, INS Headquarters issued new policies to restore the integrity of the naturalization process, but a Pete Marwick audit in April 1997 found that 23 of 24 INS offices had failed to comply with the new policies. Some INS offices were not even notified of those policies. The Naturalization Reform Act of 1998 requires the Attorney General to conduct an oversight process auditing the INS' compliance with all of the requirements of the naturalization process, and to provide annual evaluation reports to Congress for the next 3 years.
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To explain the reasons behind the Naturalization Reform Act of 1998, I have had to dwell briefly on INS failures, I also recognize that many INS and Justice Department officials have worked very hard since 1996 to improve the naturalization process. Certainly, their efforts should be applauded. But the provisions of this reform bill do not depend on whether INS is doing a better job or a worse job at any given time. Rather, the provisions of the Naturalization Reform Act of 1998 are designed to ensure that the deeply cherished prerequisites of American citizenship are never again politicized or severely weakened or endangered. I hope we never again have to explain to the American people how anyone cheapened and diminished the greatest honor our nation can bestow.
That concludes my opening statement. I have two other points that I would like to make, though.
The first is that I think that this is an unusually balanced hearing that we are having today. We anticipated, and regrettably the anticipation was accurate, that the INS would lean against the bill.
We anticipated that the Commission on Immigration Reform Members who are here would lean in favor, and that the last panel would be split. That, in fact, has turned out to be the case.
The other point I want to make is that we did not get the testimony from the Administration until last night after office hours. It seems to me that with the more than a week's notice that we typically give any Administration witness, that we are entitled to get the testimony as is required 48 hours before the time of the hearing.
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The Administration obviously has adequate resources, in fact abundant resources, to enable them to prepare. They are obviously familiar with this subject because they have testified on it many times. I hope in the future we can get testimony 48 hours in advance.
It was interesting that the individuals who probably had the fewest resources upon which to rely, our last two witnesses, actually got their testimony in first.
The Commission on Immigration Reform members did not get as much notice as the Administration because we notified them by mail rather than by phone calls. They still, in a couple of cases, got their testimony in before the Administration. So, without belaboring the point and without wanting to threaten any future sanctions, I hope that the Administration will hear the message. To the extent that we can give you as much notice as possible, we will do so.
I do appreciate the attendance of so many Members of the subcommittee today. We will look forward to their participation. I will now go to the gentleman from North Carolina, the Ranking Member, for his opening statement.
[The Amendment in the Nature of a Substitute to H.R. 2837 follows:]
Amendment in the Nature of a Substitute
to H.R. 2837
Offered by Mr. Smith of Texas
Strike all after the enacting clause and insert the following:
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SECTION 1. SHORT TITLE.
This Act may be cited as the ''Naturalization Reform Act of 1998''.
SEC. 2. BAR TO NATURALIZATION FOR ALIENS DEPORTABLE FOR CRIMES.
(a) IN GENERAL.—Section 316(a) of the Immigration and Nationality Act (8 U.S.C. 1427(a)) is amended—
(1) in paragraph (2), by striking ''and'' at the end;
(2) in paragraph (3), by striking ''States.'' and inserting ''States, and''; and
(3) by adding at the end the following:
''(4) on the date of the application (A) is not deportable under paragraph (1) (other than subparagraph (A)), (2), (3), or (6) of section 237(a), subparagraph (A), (B), or (D) of paragraph (4) of such section, or paragraph (1)(A) of such section (but only to the extent that such paragraph relates to inadmissibility under paragraph (2), (6), (8), or (9) of section 212(a), subparagraph (A), (B), or (E) of section 212(a)(3), or subparagraph (A), (C), (D), or (E) of section 212(a)(10)); (B) is not subject to an outstanding removal order under section 235(b)(1), section 240, or any other provision of law; and (C) is not in removal proceedings.''.
(b) EFFECTIVE DATE.—The amendments made by subsection (a) shall take effect on October 1, 1998, and shall apply to applications for naturalization submitted on or after such date.
SEC. 3. EXTENSION TO 10 YEARS OF GOOD MORAL CHARACTER PERIOD FOR NATURALIZATION.
(a) IN GENERAL.—Section 316(a)(3) of the Immigration and Nationality Act (8 U.S.C. 1427(a)(3)) is amended by striking ''during all the periods referred to in this subsection'' and inserting ''during the ten years immediately preceding the date of filing of the application''.
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(b) EFFECTIVE DATE.—The amendment made by subsection (a) shall take effect on October 1, 1998, and shall apply to applications for naturalization submitted on or after such date.
SEC. 4. INVESTIGATION OF CRIMINAL BACKGROUND OF CERTAIN ALIENS AND PERSONS SPONSORING ALIENS FOR ENTRY.
(a) IN GENERAL.—Title I of the Immigration and Nationality Act (8 U.S.C. 1101 et seq.) is amended by adding at the end the following:
''INVESTIGATION OF CRIMINAL BACKGROUND OF AN ALIEN APPLYING FOR CERTAIN BENEFITS AND CERTAIN PETITIONERS FOR CLASSIFICATION OF AN ALIEN
''SEC. 106. (a) IN GENERAL.—With respect to a person described in a subparagraph of subsection (c)(1) who is petitioning, or applying to, the Attorney General to grant the benefit or take the action described in such subparagraph (and with respect to an individual described in subparagraph (E) of such subsection whose residence is the home of such a person), the Attorney General may not grant the benefit or take the action, unless, during the pendency of the person's petition or application, the following has been completed:
''(1) An employee of one of the following entities, after verifying the person's identity, has prepared a complete and legible set of fingerprints of the person:
''(A) The Service.
''(B) A single contractor that has been awarded, by the Attorney General or the Commissioner, an exclusive contract to provide personnel to conduct fingerprinting services, at facilities under the control of the Commissioner where Service personnel are stationed during all hours of operation to ensure quality control and to supervise the operation of the facility.
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''(C) A State or local law enforcement agency.
''(D) With respect to a person residing outside of the United States—
''(i) a United States consular office at a United States embassy or consulate under the jurisdiction of the Department of State; or
''(ii) a military facility or installation outside the United States under the jurisdiction of the Department of Defense.
''(2) The Commissioner has requested the Director of the Federal Bureau of Investigation to conduct a criminal history background check on the person for the appropriate purpose described in subsection (c)(2), and the Commissioner has submitted the fingerprints prepared under paragraph (1) to the Director, along with any supplementary information required by the Director to complete the check.
''(3) The Director of the Federal Bureau of Investigation, using the fingerprints and information provided by the Commissioner, has conducted the check, and has provided the Commissioner with a response describing the person's criminal history, as reflected in records maintained by the Federal Bureau of Investigation.
''(4) The Commissioner has conducted an investigation of the person's criminal history, including all criminal offenses listed in the Director's response, all criminal offenses listed in informational databases maintained by the Service, and all other criminal offenses of which the Commissioner has knowledge, for the appropriate purpose described in subsection (c)(2).
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''(5) In a case where the investigation under paragraph (4) of an applicant for naturalization reveals criminal history that bears upon the applicant's eligibility for naturalization, and the employee designated under section 335 to conduct the examination under such section has determined that the application should be granted, such determination has been reviewed by at least one Service officer whose duties include performing such reviews.
''(b) EXCEPTION.—Notwithstanding subsection (a), when the Attorney General certifies to the Director of the Federal Bureau of Investigation that a person described in subsection (c)(1) is physically unable to provide legible fingerprints—
''(1) the requirement that the Commissioner submit fingerprints to the Director shall not apply; and
''(2) the Director shall conduct a criminal history background check based on the person's name and any other method of positive identification other than fingerprints used by the Federal Bureau of Investigation for criminal history background checks.
''(c) PERSONS SUBJECT TO, AND PURPOSES FOR, BACKGROUND CHECKS.—
''(1) PERSONS AND PETITIONS DESCRIBED.—The persons (and applications and petitions) described in this paragraph are as follows:
''(A) An alien 14 years of age or older applying for adjustment of status to that of an alien lawfully admitted for permanent residence.
''(B) An alien 14 years of age or older applying for naturalization as a citizen of the United States.
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''(C) An alien 14 years of age or older applying for asylum, or treatment as a spouse or child accompanying an asylee.
''(D) An alien 14 years of age or older applying for temporary protected status under section 244.
''(E) A person who has filed a petition to accord a child defined in section 101(b)(1)(F) classification as an immediate relative under section 201(b)(2)(A)(i), and any additional individual, over the age of 18, whose principal or only residence is the home of such person.
''(F) A person who has submitted a guarantee of legal custody and financial responsibility under paragraphs (2)(B) and (4) of section 204(f) in connection with a petition to accord an alien, who is the subject of the guarantee, classification under section 201(b), 203(a)(1), or 203(a)(3).
''(2) PURPOSES FOR CHECKS DESCRIBED.—
''(A) ALIENS APPLYING FOR BENEFITS.—With respect to the aliens, and the applications, described in subparagraphs (A) through (D) of paragraph (1), the requirements of subsection (a) shall be applied (subject to subsection (b)) for the purpose of determining whether the alien has a criminal history that bears upon the alien's eligibility for the benefit for which the alien applied.
''(B) ORPHAN PETITIONS.—With respect to a person described in paragraph (1)(E), the requirements of subsection (a) shall be applied (subject to subsection (b)) for the purpose of determining whether the person has a criminal history that bears upon whether proper care will be furnished the child described in such paragraph.
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''(C) AMERASIAN PETITIONS.—With respect to a person described in paragraph (1)(F), the requirements of subsection (a) shall be applied (subject to subsection (b)) for the purpose of determining whether the person is of good moral character.
''(d) FEE.—The Attorney General may charge a person described in subsection (c)(1) a fee to cover the actual cost of the criminal background check process under this section.
''(e) CONSTRUCTION.—This section shall not be construed to affect or impair the ability of the Attorney General to require a criminal history background check as a condition for obtaining any benefit under this Act (including a classification under section 204) that is not described in subsection (c)(1).''.
(b) CLERICAL AMENDMENT.—The table of contents of the Immigration and Nationality Act is amended by inserting after the item relating to section 105 the following:
''Sec. 106. Investigation of criminal background of an alien applying for certain benefits and certain petitioners for classification of an alien.''.
(c) EFFECTIVE DATE.—The amendments made by this section shall take effect on October 1, 1998, and shall apply to applications for a benefit under the Immigration and Nationality Act (including petitions to accord a classification under section 204 of such Act) submitted on or after such date.
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SEC. 5. INTERVIEW FOR ADJUSTMENT OF STATUS.
(a) IN GENERAL.—The Immigration and Nationality Act is amended by inserting after section 245A the following:
''INTERVIEW FOR ADJUSTMENT OF STATUS TO THAT OF PERSON ADMITTED FOR PERMANENT RESIDENCE
''SEC. 245B. Before the status of an alien may be adjusted by the Attorney General to that of an alien lawfully admitted for permanent residence, the alien shall appear before an employee of the Service, who shall conduct a personal interview of the alien for the purpose of verifying that the alien is eligible for such adjustment.''.
(b) CLERICAL AMENDMENT.—The table of contents of the Immigration and Nationality Act is amended by inserting after the item relating to section 245A the following:
''Sec. 245B. Interview for adjustment of status to that of person admitted for permanent residence.''.
(c) EFFECTIVE DATE.—The amendments made by this section shall take effect on October 1, 1998, and shall apply to applications for adjustment of status submitted on or after such date.
SEC. 6. INTERVIEW FOR NATURALIZATION.
(a) IN GENERAL.—Section 332 of the Immigration and Nationality Act (8 U.S.C. 1443) is amended by adding at the end the following:
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''(i) The examination under subsection (a) shall include a personal interview of the applicant, conducted by an employee of the Service who—
''(1) shall require the applicant to demonstrate the ability to speak and understand words in ordinary usage in the English language, in accordance with section 312(a)(1), unless the applicant is exempt from the requirements of such section pursuant to section 312(b);
''(2) shall require the applicant to describe any criminal law violations, other than minor traffic violations, for which the applicant has ever been arrested, charged, convicted, fined, or imprisoned, or which the applicant has committed but for which the applicant has not been arrested, charged, convicted, fined, or imprisoned; and
''(3) shall verify each statement or representation made by the applicant in the written application for naturalization, and in any documents submitted in support of the application, and shall examine the applicant to determine whether the applicant has willfully made any false statements or misrepresentations, or committed any fraud, for the purpose of obtaining United States citizenship.''.
(b) EFFECTIVE DATE.—The amendment made by subsection (a) shall take effect on October 1, 1998, and shall apply to applications for naturalization submitted on or after such date.
SEC. 7. CITIZENSHIP TESTING.
(a) IN GENERAL.—Section 312 of the Immigration and Nationality Act (8 U.S.C. 1423) is amended by adding at the end the following:
''(c)(1) Subject to subsection (b), an applicant for naturalization shall satisfy the reading and writing requirements of subsection (a)(1), and the knowledge and understanding requirements of subsection (a)(2), by passing a test described in paragraph (2) and administered in accordance with paragraph (4).
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''(2) Not later than July 1, 1998, the Attorney General shall develop and approve a master list of questions to be used in tests referred to in paragraph (1). Each such test shall consist of a uniform number of questions drawn randomly from the master list by the person administering the test.
''(3) The Attorney General shall require an applicant for naturalization who has passed a test referred to in paragraph (1) to retake and repass such a test, as a condition for naturalization, in circumstances where the Attorney General has reasonable grounds to believe that the administration of the test was impaired by fraud, misrepresentation, or other misconduct or negligence that jeopardizes the reliability of the test results.
''(4) A test referred to in paragraph (1) shall be administered by an employee of one of the following entities:
''(A) The Service.
''(B) A single contractor that has been awarded, by the Attorney General or the Commissioner, an exclusive contract to provide personnel to administer such tests at facilities under the control of the Commissioner where Service personnel are stationed during all hours of operation to ensure quality control and to supervise the operation of the facility.''.
(b) EFFECTIVE DATE.—The amendment made by paragraph (1) shall take effect on the date of the enactment of this Act, and shall apply to applications for naturalization submitted on or after October 1, 1998.
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SEC. 8. REQUIREMENTS WITH RESPECT TO RESIDENT ALIEN CARDS.
(a) CIVIL PENALTY FOR FAILURE TO REPORT LOSS, THEFT, OR DESTRUCTION OF RESIDENT ALIEN CARD.—
(1) IN GENERAL.—The Immigration and Nationality Act is amended by inserting after section 274D the following:
''CIVIL PENALTY FOR FAILURE TO REPORT LOSS, THEFT, OR DESTRUCTION OF RESIDENT ALIEN CARD
''SEC. 274E. Any alien who has been issued by the Attorney General an alien registration receipt card indicating the alien's status as an alien lawfully admitted for permanent residence, and who fails to report to the Attorney General the loss, theft, or destruction of the card by the date that is 7 days after the date the alien discovers such loss, theft, or destruction, shall pay a civil penalty to the Commissioner of $50 per violation.''.
(2) CLERICAL AMENDMENT.—The table of contents of the Immigration and Nationality Act is amended by inserting after the item relating to section 274D the following new item:
''Sec. 274E. Civil penalty for failure to report loss, theft, or destruction of resident alien card.''.
(3) EFFECTIVE DATE.—The amendments made by this subsection shall take effect on October 1, 1998, and shall apply to alien registration receipt cards that are lost, stolen, or destroyed on or after such date.
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(b) SURRENDER OF RESIDENT ALIEN CARD UPON NATURALIZATION.—
(1) IN GENERAL.—Section 338 of the Immigration and Nationality Act (8 U.S.C. 1449) is amended—
(A) by inserting ''(a)'' before ''A person''; and
(B) by adding at the end the following:
''(b) Notwithstanding subsection (a), the Attorney General may not deliver a certificate of naturalization to any person to whom the Attorney General previously had issued an alien registration receipt card indicating the person's status as an alien lawfully admitted for permanent residence, unless—
''(1) the person has surrendered the card to the Attorney General; or
''(2) the person has submitted an affidavit to the Attorney General stating that the card was lost, stolen, or destroyed, and describing any facts known to the alien with respect to the circumstances of such loss, theft, or destruction, and a period of not less than 30 days has elapsed since such submission, during which period the Attorney General may conduct an investigation of such loss, theft, or destruction.''.
(2) EFFECTIVE DATE.—The amendments made by this subsection shall take effect on October 1, 1998, and shall apply to certificates of naturalization delivered on or after such date.
SEC. 9. REVOCATION OF NATURALIZATION.
(a) CLARIFICATION OF MATERIALITY REQUIREMENT.—Section 340(a) of the Immigration and Nationality Act (8 U.S.C. 1451(a)) is amended—
(1) by striking ''(a)'' and inserting ''(a)(1)''; and
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(2) by adding at the end the following:
''(2) For purposes of this section, a fact with respect to a naturalized person may not be considered immaterial solely because the fact, had it been known to the Attorney General before the person was naturalized, would not, by itself, have required the Attorney General to deny the person's application for naturalization.''.
(b) REBUTTABLE PRESUMPTION OF WILLFULNESS.—Section 340 of the Immigration and Nationality Act (8 U.S.C. 1451) is amended—
(1) by redesignating subsections (d) through (h) as subsections (e) though (i), respectively; and
(2) by inserting after subsection (c) the following:
''(d) In any proceeding under this section in which the United States proves that an order admitting a person to citizenship was procured by the person's concealment or misrepresentation of a material fact, such proof shall be considered prima facie evidence that the person acted willfully with respect to the concealment or misrepresentation, and, in the absence of countervailing evidence, such proof shall be sufficient to authorize the revocation and setting aside of the order and the cancellation of the certificate of naturalization.''.
(c) LIMITATION ON ADMINISTRATIVE REVOCATIONS.—Section 340 of the Immigration and Nationality Act (8 U.S.C. 1451), as amended by subsection (b), is further amended—
(1) in subsection (i), by striking ''Nothing'' and inserting ''Subject to subsection (j), nothing''; and
(2) by inserting after subsection (i) the following:
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''(j) The Attorney General shall commence any proceeding administratively to correct, reopen, alter, modify, or vacate an order naturalizing a person not later than 5 years after the effective date of the order.''.
(d) EFFECTIVE DATE.—The amendments made by this section shall take effect on October 1, 1998, and shall apply to any order naturalizing a person with an effective date that is on or after October 1, 1998.
SEC. 10. QUALITY ASSURANCE AND IMPROVED OVERSIGHT FOR NATURALIZATION.
(a) IN GENERAL.—Not later than 60 days after the date of the enactment of this Act, the Attorney General shall establish a process (including internal audit procedures, other audit procedures, or both) to review the ongoing compliance with all laws, policies, and procedures affecting naturalization by each office of the Immigration and Naturalization Service that has duties with respect to naturalization.
(b) REPORTS.—Not later than 30 days after the termination of each of fiscal years 1998, 1999, 2000, and 2001, the Attorney General shall submit a report to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives concerning the compliance by the Commissioner of Immigration and Naturalization and the Immigration and Naturalization Service with all laws, policies, and procedures affecting naturalization during such terminated fiscal year.
(c) EFFECTIVE DATE.—This section shall take effect on the date of the enactment of this Act, and shall cease to be effective upon the submission, under subsection (b), of the report with respect to fiscal year 2001.
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[The prepared statement of Lamar Smith follows:]
PREPARED STATEMENT OF HON. LAMAR SMITH, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS, AND CHAIRMAN, SUBCOMMITTEE ON IMMIGRATION AND CLAIMS
BACKGROUND
The INS' Citizenship USA program resulted in a host of alarming problems within the United States' naturalization program. Under the twin pressures of rising applications and political pressure from the Administration, the INS granted citizenship to 1,050,000 applicants from September 1995 to September 1996, of whom 750,000 were naturalized in the last six months of the program. By the end of Citizenship USA, the INS was granting citizenship about five times as fast as it had during the previous five years.
Not surprisingly, this rapid acceleration of the naturalization process resulted in an almost complete breakdown of the legal and procedural safeguards which are supposed to be enforced. According to a recent Peat Marwick sample audit, projected over the entire universe of 1,050,000 naturalization cases, over 90% of the application files—that is, over 950,000 individual cases—were incomplete or incorrect in some way. The biggest single problem within those 950,000 cases was the lack of a proper criminal background check. The sample audit found about 40,000 cases where it was clear that citizenship should not have been granted, including a minimum of 11,500 cases where the applicant's criminal record was the basis for disqualification; about 920,000 cases where the files were in such poor condition that it was impossible to tell if the grant of citizenship was proper; and only 90,000 cases where the file was complete and the grant of citizenship appeared to be correct.
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As a result of these errors, the INS is currently attempting to revoke the citizenship of 6300 people whom the agency was able to identify as having been granted citizenship despite having potentially disqualifying felony records. In sum, the results of the Citizenship USA program have been best described by Attorney General Reno, who labeled it ''a catastrophe.''
IMPROPER NATURALIZATION OF ALIENS WITH CRIMINAL RECORDS
To ensure that each applicant possesses the ''good moral character'' statutorily required for a grant of United States citizenship, the INS is required to take fingerprints and submit them to the FBI for a criminal background check. If the FBI returns a criminal record, the INS is required to investigate the record to determine whether it is a bar to citizenship.
Problem: Unreliable Fingerprints. To expedite the naturalization process, the INS allowed applicants to submit fingerprints taken by numerous private businesses and non-profit organizations. Unfortunately, many of these organizations proved unreliable or disreputable, and INS did not supervise them to ensure quality control. Since many of these organizations did not properly check identification documents, it is possible that many applicants with criminal records were able to avoid detection by submitting someone else's fingerprints. In addition, many of the fingerprint cards done by outside organizations proved to be illegible or incomplete.
Solution: The bill provides that fingerprints for criminal background checks may be taken only by INS, by a single contractor located at INS facilities and supervised by INS, by state and local law enforcement agencies, or by State and Defense Department offices abroad. This provision mirrors the requirements of the appropriations law enacted at the end of last session (H.R. 2267), except that H.R. 2267 only applies to the FD-258 fingerprint cards currently used by INS, while H.R. 2837 also applies to all fingerprinting procedures, including electronic imaging, which may be used in the future.
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Problem: Failure to Conduct Fingerprint Checks. During Citizenship USA, the INS failed to initiate proper fingerprint checks in about 180,000 cases. Over 113,000 fingerprint cards were submitted in incomplete or illegible form and rejected by FBI, and over 66,000 fingerprint cards were never submitted at all. All of these applicants were granted citizenship. Even when fingerprint cards were submitted, the INS often failed to wait for the resulting criminal records. Over 80,000 applicants whose fingerprints generated criminal records were nonetheless granted citizenship. Due to pressure from Congress and the Justice Department, the INS is now attempting to revoke citizenship in the most serious cases identified, approximately 6300 cases involving felony records and related misrepresentations.
The Peat Marwick audit conservatively estimated that at least 11,500 aliens were granted citizenship despite their disqualifying criminal records and related misrepresentations. However, the procedural problems noted above—i.e. incomplete and inaccurate files—make it impossible to identify the true number of improperly naturalized applicants with criminal records.
Solution: The bill requires fingerprint checks and complete background investigations before aliens can be granted certain immigration benefits, as follows:
Aliens age 14 or older applying for naturalization, adjustment of status, asylum (including accompanying spouses and children), or temporary protected status.
Persons wishing to adopt alien orphans (including adult members of the adoptive household), and persons wishing to sponsor Amerasian children.
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These requirements are not new. Similar requirements have long been included in INS regulations and policies, but INS has failed to enforce them. They are included in the bill, in expanded form, to bolster INS enforcement by making them statutory requirements.
IMPROPER NATURALIZATION OF DEPORTABLE ALIENS
Problem: Naturalization of Deportable Aliens. Due to excessive haste and lack of coordination, INS officers sometimes granted citizenship to an alien at the same time as other INS officers were working to deport the same alien.
Solution: To insure that deportable aliens are deported rather than naturalized, the bill provides that an alien who is deportable because of past criminal conduct, who is involved in deportation proceedings, or who is under an order of deportation, may not be granted citizenship.
DIFFICULTIES IN REVOKING CITIZENSHIP OF NATURALIZED CRIMINALS
Problem: Difficulties of Denaturalization. As noted above, the INS is attempting to denaturalize about 6300 aliens with felony records. Under current law, there are two separate grounds for denaturalization: (1) that the applicant was ineligible for naturalization, i.e. had a serious criminal conviction, or (2) that the applicant made a wilful and material misrepresentation to procure naturalization, i.e. lied about their criminal record.
Some of the 6300 cases are based on serious criminal convictions, but others are directed at applicants who lied about their criminal records. In the past INS has denaturalized only about a dozen serious criminals per year, but now they are trying to denaturalize thousands, and they anticipate significant legal and logistical difficulties, especially in the misrepresentation cases.
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Materiality. The materiality standard for denaturalization was addressed in a potentially ambiguous Supreme Court case called Kungys v. United States, 485 U.S. 759 (1988). The central holding is that a misrepresentation is material if it had a ''natural tendency to influence'' the INS' decision, but there is also some language, particularly in a concurring opinion, which suggests that a misrepresentation is material only if the underlying facts would have disqualified the applicant from naturalization. This alternative reading of the statute would effectively eliminate the misrepresentation ground for denaturalization, because the INS would always have to prove that the applicant was ineligible on other grounds. It creates an opportunity for judges to weaken and distort the law.
Here is a hypothetical example of how this law would apply: Applicant X had a few felony arrests and a few old misdemeanor convictions. His criminal record was not an automatic bar to citizenship, but the INS still might have denied citizenship based on its discretionary power to adjudicate good moral character. However, Applicant X deliberately concealed his criminal record and was granted citizenship. In this case, the INS should be able to denaturalize Applicant X based on his material misrepresentations without having to prove that his criminal record alone made him automatically ineligible for citizenship.
Solution: The bill makes it clear that a misrepresentation can be material even if the underlying true fact was not an automatic bar to citizenship. This is not a change in the statute, it is simply a clarification necessitated by a potentially ambiguous Supreme Court case.
Wilfulness. The second anticipated difficulty is in proving intent or wilfulness, especially when the naturalized person is not available for questioning.
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Solution: The bill creates a rebuttable presumption that a material misrepresentation is intentional. This is a standard presumption, found in many areas of the law, based on the common-law precept that a person is presumed to have intended the consequences of his own actions. The presumption is defeated as soon as the respondent offers some explanation or evidence indicating that the misrepresentation was not wilful, at which point the government bears the burden of proving wilfulness through clear, unequivocal and convincing evidence. Statute of Limitations for Administrative Denaturalization. There are two methods of denaturalization: judicial denaturalization, which requires a U.S. Attorney to bring a case in federal district court, and administrative denaturalization, which the INS can initiate much more easily. The INS is relying on administrative denaturalization to deal with the Citizenship USA caseload, but their regulations allow only two years after naturalization to initiate the administrative proceeding. A small number of cases is already beyond the two-year limit, and this number is almost certain to increase throughout 1998.
Solution: The bill increases the statute of limitations from two to five years.
GOOD MORAL CHARACTER
In response to heightened concerns about United States citizenship being conferred on people with criminal records, the bill requires applicants for naturalization to demonstrate good moral character for the ten years preceding the grant of citizenship, rather than the current requirement of five years.
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CITIZENSHIP TESTING
To become a United States citizen, an alien must demonstrate the ability to read, write, speak and understand basic English, and must also demonstrate basic knowledge of American history and government.
Problem: Non-Standardized Test. The English and civics requirement has traditionally been tested by the INS, but the agency has never standardized the citizenship test. Thus, applicants for naturalization have been subjected to the discretion of naturalization examiners who could make the test easier or more difficult, depending on their preferences.
Problem: Outside Testing Fraud. In 1991 the INS began contracting out its testing responsibility to private companies. Like the fingerprinting organizations, many of these testing companies proved unreliable or disreputable, and the INS did not supervise them to ensure quality control. Many applicants were charged hundreds of dollars in excessive fees, and widespread cheating and fraud were exposed by media reports and Congressional oversight. INS was forced to terminate its largest contractor, with almost 500 testing sites, because of a pattern of overcharging applicants and helping them to cheat on the test.
More recently, the Justice Department Inspector General reported that its investigation of private citizenship testing during Citizenship USA had uncovered evidence of 13,000 additional potentially fraudulent tests and had resulted in 20 criminal indictments of test administrators. Solution: The bill requires the Justice Department to develop a standardized citizenship test, which must be administered by INS or by a single contractor located at INS facilities and supervised by INS. The bill also requires retesting of applicants who passed the citizenship test under fraudulent circumstances before they may be granted citizenship.
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INTERVIEWS
Problem: Inadequate or Non-Existent Interviews. Under Citizenship USA, INS officers were often required to conduct naturalization interviews in six minutes or less, so that they were unable to conduct a proper review of the information provided by the applicant. Worse still, INS management began seriously considering the elimination of interviews in many cases in order to expedite the naturalization process.
Solution: The bill requires every applicant for naturalization or adjustment of status to go through a personal interview to verify their eligibility before the benefit is granted. The naturalization interview must include a check for English language proficiency, an inquiry into the applicant's criminal history, and a check for fraud or misrepresentation in the application.
Like the criminal background check requirements above, these interview requirements are not new. Similar requirements have long been included in INS regulations and policies, but INS has failed to enforce them. They are included in the bill, in expanded form, to bolster INS enforcement by making them statutory requirements.
ACCOUNTABILITY OF GREEN CARDS
Problem: Loss of Accountability. New citizens are required to turn in their green cards before receiving their naturalization certificates, but INS failed to enforce this requirement, most notably at a mass naturalization ceremony in Chicago in August 1996, when 8,000 naturalization certificates were given out without collecting the corresponding green cards. Given the prevalence of document fraud and the high ''street value'' of a green card, this was a serious breach of integrity.
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More generally, the INS has no effective system for keeping track of green cards which have been lost, stolen or destroyed.
Finally, in a related development, a February 1998 Justice Department Inspector General report concluded that the INS still does not have effective management controls or procedures governing the distribution of naturalization certificates.
Solution: The bill requires an alien whose green card is lost, stolen or destroyed to report it to the INS within seven days, or pay a $50 fine for failing to do so.
The bill also provides that an alien approved for citizenship may not receive their naturalization certificate unless they either turn in their green card or submit an affidavit describing how the green card was lost, stolen or destroyed. If they do the latter, they must wait at least 30 days before receiving their naturalization certificate, in order to give the INS an opportunity to investigate the circumstances of the loss, theft or destruction.
QUALITY ASSURANCE FOR NATURALIZATION PROCESS
Problem: Continuing Mismanagement. INS mismanagement of the naturalization process has continued beyond Citizenship USA. For example, in November 1996, INS headquarters issued new procedures designed to restore the integrity of the naturalization process, but a Peat Marwick audit completed in April 1997 found that 23 of 24 INS offices had failed to comply with the new procedures, and some of the offices had not even been notified of the new procedures. Such lapses in management and accountability have led the Attorney General to create a special Justice Department team to bring integrity and efficiency to the naturalization process.
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Solution: For the next three years, the bill requires the Attorney General to conduct an oversight process auditing the INS' compliance with the requirements of the naturalization process, and to provide annual evaluation reports to Congress.
Mr. WATT. Thank you, Mr. Chairman.
I think I will refrain from comment on your remarks after your opening statement.
I will just go on to what the hearing is about. This morning, we will hear testimony on the Naturalization Reform Act of 1998. I am eager to hear the testimony of the witnesses.
Although I intend to approach this hearing with an open mind, I think it is only fair to forewarn the witnesses and the chairman that I am not convinced that this legislation is necessary.
The chairman apparently believes this bill is necessary to restore, ''integrity'' to the naturalization process in the aftermath of the Citizenship U.S.A. Program. He and I may have slightly different interpretations of what ''integrity'' means.
It seems to me that when the chairman talks about integrity, what he is really talking about is security more than integrity. We have all heard about the problems which the Citizenship U.S.A. Program.
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Like the chairman, I want to make certain that the errors which occurred in the Citizenship U.S.A. Program do not happen again and that the process is secure. I am confident that both the Justice Department and the INS share this concern.
That is why they have implemented strict quality procedures to protect against any other errors of breaches in security. An independent audit by KPMG Pete Marwick concluded that these new procedures are in place and working.
In its December 16, 1997 final report, KPMG concluded, ''As a result of our site audits, it is clear that the naturalization quality procedure has made significant improvements in the internal controls of the naturalization process and greatly reduce the risk of incorrectly naturalizing an applicant.
Further, there was evidence across the INS of increased control and documentation of criminal history information. KPMG can conclude that the INS has continued to reduce the likelihood of naturalizing aliens with disqualifying conditions.
So, given this report, why are we here at this hearing today? The chairman seems to be telling us that the only way to ensure that the INS does not make any mistakes in the future is through legislation.
One might call that micro-management. I want to remind the chairman that it does not matter whether security procedures are included in a statute, or regulation, or a policy.
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What matters is that the procedures be implemented and enforced. According to KPMG, that is already happening to the extent that it can happen. We, of course, want to encourage the INS to continue to improve.
The fact that Bob Brantt is no longer in charge of Justice Department and INS efforts to restore integrity to the naturalization process, does not alter that conclusion. I have never met Mr. Brantt.
I have never met his replacement, Mr. Angus, either. Everyone seems to be pleased with the strides that the INS made under Mr. Brantt's guidance, but no one is indispensable. I am confident that his deputy, Mr.Angus, will be able to continue the processes that have already begun.
I tried to avoid being cynical, but it seems to me that one of the reasons we are here is to rehash the mistakes of the Citizenship U.S.A. Program, just to gain some political points. If we are going to play politics, I believe we need to put these errors in perspective.
So, here I go; 1,490,867 people were naturalized during the Citizenship U.S.A. Program. We were told that tens of thousands of these people were dangerous felons who had been improperly naturalized because the INS was rushing to naturalize future voters for the Democratic Party.
So, we called in KPMG Pete Marwick. We spent hundreds of thousands of dollars to get an objective evaluation of what occurred during the Citizenship U.S.A. Program. After looking at every file where an FBI record indicated a prior felony arrest, KPMG found only 369 cases where the applicant was ''presumptively ineligible'' for naturalization because of a felony conviction.
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We were similarly told that the hundreds people had naturalized during the citizenship process, even though they were in deportation proceedings or had final orders of deportation in their files.
KPMG looked at ever file where there was evidence of possible deportation proceedings and found only 38 cases where the applicant was improperly naturalized. Three hundred and sixty-nine felons out of over one million new citizens; 38 deportees out of over one million new citizens.
I agree that one error is an error too many, but these are hardly numbers which support allegations that the entire system was fraught with fraud and lacks ''integrity.'' Since those numbers are not high enough, the chairman must point to KPMG's random sampling process file review which showed that 90.8-percent of the files had processing errors and 87.7-percent lacked property documentation to support citizenship.
As an aside, I would like to say that if the chairman believes that statistical sampling is such a powerful and accurate tool in this case, I hope he will support the use of statistical sampling for the Census.
I also would have thought that he might have voted against Mr. Canady's amendment in the Judiciary yesterday where Mr. Canady was trying to prohibit the use of statistical information to create an inference of racial discrimination in police stops. My chairman voted for the amendment, all based on statistical sampling.
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It is the same theory, we want you to know. For my part, I think, sampling can work so long as we know what the sample contains. In this case, the chairman fails to explain that KPMG counted any error, no matter how large or how small as an error.
For example, there could have been a notation about fingerprints, but if they were made in the wrong box on the A400 Form, then it was an error. A document might have been in a file, but not stapled correctly. That was an error.
If the chairman wants to rely on these types of statistics to impugn the integrity of nearly a million new Americans who were naturalized during the Citizenship U.S.A. Program, so be it. I want to be clear about my feelings on this.
I believe that the overwhelming majority of immigrants who chose to become Americans, then and now, are honest, hard working, law abiding people who we should gladly welcome to this country.
That brings me to my real problems with the Naturalization Reform Act of 1998. It does nothing about the growing naturalization backlog. The chairman keeps using the word ''integrity,'' but forgets that integrity has two elements. Integrity is also about efficiency of the process. It is about treating people with the dignity and respect that they deserve.
It is only when we have restored both efficiency and security to the naturalization process that we can honestly claim to have restored integrity to the system. Today, the integrity of the naturalization process is being violated because of serious abominable delays in processing.
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In my hometown, Charlotte, North Carolina, people must wait over 2 years to become naturalized because of this backlog. I got a call yesterday saying that an applicant got a letter in the mail saying it was going to be 736 days before the folks could even consider their application.
The wait is even longer in Atlanta. Similar backlogs exist in nearly every INS district office. These backlogs must be eliminated. They must be eliminated immediately. Not only does the chairman's bill do nothing to eliminate the backlog, it might actually contribute to the backlog in several ways.
I will not elaborate on that. I will put it in the record later.
[The prepared statement of Mr. Watt follows:]
PREPARED STATEMENT OF MELVIN L. WATT, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NORTH CAROLINA
This morning we will hear testimony on the ''Naturalization Reform Act.'' I am eager to hear the testimony of the witnesses. Although I intend to approach this hearing with an open mind, I think it is only fair to forewarn the witnesses and the Chairman that I am not convinced that this legislation is necessary. The Chairman apparently believes this bill is necessary to restore ''integrity'' to the naturalization process in the aftermath of the Citizenship USA program. He and I may have slightly different interpretations of ''integrity.'' It seems to me that when the Chairman talks about ''integrity'' what he is really talking about is ''security.'' We have all heard about the problems with the Citizenship USA program and, like the Chairman, I want to make certain that the errors which occurred in the Citizenship USA program do not happen again and that the process is secure. I am confident that both the Justice Department and the INS share this concern. That is why they have implemented strict quality procedures to protect against any other errors or breaches in security. An independent audit by KPMG Peat Marwick concluded that these new procedures are in place and working. In its December 16, 1997 Final Report, KPMG concluded:
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''As a result of our site audits, it is clear that the Naturalization Quality Procedure has made significant improvements in the internal controls of the naturalization process and greatly reduced the risk of incorrectly naturalizing an applicant. Further, there was evidence across the INS of increased control and documentation of criminal history information. . . . KPMG can conclude that the INS has continued to reduce the likelihood of naturalizing aliens with disqualifying conditions.''
So why are we holding this hearing?
The Chairman seems to be telling us that the only way to ensure that the INS doesn't make any mistakes in the future is through legislation. One might call that ''micromanagement.'' However, the Chairman should know it does not matter whether security procedures are included in a statute, a regulation or a policy. What matters is that the procedures be implemented and enforced. That's already happening.
The fact that Bob Bratt is no longer in charge of Justice Department and INS efforts to restore integrity to the naturalization process does not alter that conclusion. I never met Mr. Bratt. Everyone seemed to be pleased with the strides he was making. But no one is indispensable and I am confident that his Deputy, Mr. Angus, will be able to continue the processes that have already begun.
I try to avoid being cynical but it seems to me that one of the reasons we are here is to rehash the mistakes of the Citizenship USA program just to gain some political points. If we are going to play politics, I believe we need to put those errors in perspective. So, here I go.
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1,049,867 were naturalized during the Citizenship USA program. We were told that tens of thousands of these people were dangerous felons who had been improperly naturalized because the INS was rushing to naturalize future voters for the Democratic party. So we called in KPMG Peat Marwick. Spent hundreds of thousands of dollars to get an objective evaluation of what occurred during the Citizenship USA program.
After looking at every file where an FBI record indicated a prior felony arrest, KPMG found only 369 cases where the applicant was ''presumptively ineligible'' for naturalization because of a felony conviction.
We were similarly told that hundreds of people had naturalized during the Citizenship USA process even though they were in deportation proceedings or had final orders of deportation in their files. KPMG looked at every file where there was evidence of possible deportation proceedings and found only 38 cases where the applicant was improperly naturalized.
369 felons out of over a million new citizens. 38 deportees out of over a million new citizens. I agree that one error is an error too many but these are hardly numbers which support allegations that the entire system was fraught with fraud.
Since those numbers aren't high enough, the Chairman must point to KPMGs ''Random Sample Process File Review'' which showed that 90.8% of the CUSA files had processing errors and 87.7% lacked proper documentation to support citizenship.
As an aside, I'd like to say that if the Chairman believes statistical sampling is such a powerful and accurate tool in this case, I hope he will support the use of statistical sampling for Census 2000. For my part, I think sampling can work so long as we know what the sample contains.
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In this case, the Chairman fails to explain is KPMG counted ANY error—no matter how large or how small—as an error. For example, there could have been a notation about fingerprints, but if it was made in the wrong box on the A-400 form, it was an error. A document might have been in a file but not stapled correctly. It was an error.
If the Chairman wants to rely on those types of statistics to impugn the integrity of nearly a million new Americans who were naturalized during the Citizenship USA program, so be it. But I want to be clear. I believe that the overwhelming majority of immigrants who chose to become Americans—then and now—are honest, hardworking, law-abiding people who we should gladly welcome.
That brings me to my real problem with the Naturalization Reform Bill. It does nothing about the growing naturalization backlog. The Chairman keeps using the word ''integrity'' but forgets that integrity has two elements. Integrity is also about efficiency of the process. It's about treating people with the dignity and respect that they deserve. It is only when we have restored both efficiency and security to the naturalization process that we can honestly claim to have restored integrity to the system.
Today, the integrity of the naturalization process is violated because of abominable backlogs. In my home town of Charlotte, North Carolina, people must wait nearly two years to become naturalized. I just received a letter from a constituent who was told by the INS that it would take 736 days to be naturalized. The wait is even longer in Atlanta. Similar backlogs exist at nearly every INS district office. These backlogs must be eliminated. And they must be eliminated immediately.
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Not only does the Chairman's bill do nothing to eliminate the backlog, it might actually contribute to the backlog in several ways. The proposal to extend the good moral character period to ten years is a good example of this. For those immigrants who apply for citizenship immediately upon meeting the five year residency requirement, the INS would be required to check foreign criminal records. Many less developed countries, for example, lack the resources to respond expeditiously to INS requests for criminal background investigations. Countries with regimes unfriendly to the U.S. might intentionally delay processing such requests to prevent their nationals from becoming U.S. citizens, particularly those who came to the U.S. as refugees or asylum seekers.
Many foreign criminal records are also unreliable. Countries with totalitarian governments routinely imprison political critics on manufactured criminal charges. Cubans who opposed Castro might have records indicating they were embezzlers. South Africans who opposed apartheid might have records showing they were arsonists. Countries with religious fundamentalist governments consider certain behavior criminal that is not illegal in secular countries. Would Salmud Rushdie be barred from naturalization in this country because he wrote The Satanic Verses?
I could cite other examples where the Chairman's bill might actually contribute to the backlog but I will save those for when we mark up this bill. In the meantime, I think I have given all of you a good idea of where I stand. I look forward to hearing your comments and testimony.
Mr. WATT. You all get the drift of where I am going on this. I am going to, notwithstanding that, try to be open minded about this hearing. If you think that I am a little suspicious about it, then forgive me. Thank you, Mr. Chairman.
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Mr. SMITH. Thank you, Mr. Watt.
Do any other members have opening statements?
The Gentleman from California, Mr. Berman.
Mr. BERMAN. Thank you, Mr. Chairman.
I do not have an opening statement. I just want to associate myself with really comprehensive and superb remarks of my Ranking Member on this subcommittee and just emphasize one small slice of what he said.
As a result of many factors, including decisions, later admitted by the leadership of this Congress to be totally erroneous with respect to how to treat legal immigrants in a variety of government programs, INS faced a massive surge in the interest in naturalization.
I cannot think of anything better for America than encouraging its residents and people, to decide to become citizens.
While I have no inherent objection to some of the provisions in this bill, even after the argument of micro-management is put forth by its opponents, I do think that one part of a naturalization bill that could get strong bipartisan support is a bill that does everything it can to encourage the speedy and appropriate resolution of naturalization applications, with full recognition for all of the legitimate investigations that must be undertaken before naturalization determinations are made. That encourages those things to go much quicker than they go now.
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The backlog in my area is unbelievably long. In part, that backlog, which the INS had made tremendous inroads in reducing, is as a result of many of the new procedures that have been put into place.
We now have to put in the resources so that we do not need to choose between appropriate security procedures and the speed of naturalization so we can do something about the backlog. Thank you, Mr. Chairman.
Mr. SMITH. Thank you, Mr. Berman. I think your last point is a valid point. We should not have to choose between reducing the backlog, which is a worthy goal, and loosening the standards, or undermining the integrity of this system. I would hope that there would be a way to do both.
Do any other Members have an opening statement?
[No response.]
If not, we welcome the first panel.
Our first panel consist of Mr. Paul Virtue, General Counsel, Immigration and Naturalization Service; and Mr. James S. Angus, Acting Executive Director, Office of Naturalization Operations, Department of Justice. As I understand it, Mr. Virtue, you are going to testify. We appreciate your being here and look forward to your comments.
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STATEMENT OF PAUL VIRTUE, GENERAL COUNSEL, IMMIGRATION AND NATURALIZATION SERVICE
Mr. VIRTUE. Mr. Chairman, thank you.
Members of the Committee, I am pleased to have this opportunity to appear before the committee to testify concerning H.R. 2837, the Naturalization Reform Act of 1998.
Before discussing some of the specific provisions of the bill, I would like to offer a brief overview of the significant improvements the INS has made in naturalization processing in the last year, as well as some of the plans we have for continuing improvements.
In April 1997, several senior level managers from the Department of Justice were assigned to spearhead INS' efforts to restore integrity and public confidence in the naturalization process and to oversee improvements of the naturalization processing in terms of standardization, communication, and backlog reduction.
By ''integrity,'' I mean to include quality determinations performed in a timely manner. Mr. James Angus, who accompanies me today, is the director of the naturalization program. Mr. Angus came to INS from the Justice Department, Civil Rights Division, and has been with the naturalization program since June 1997.
Since the day the Justice Department leadership team arrived at INS, its number one priority has been to address concerns about the integrity of the process. INS has achieved a great deal of success in this area since then.
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Last December, an independent audit of INS naturalization procedures found that INS had effectively implemented its new quality assurance procedures designed to ensure the integrity of that process.
INS is in the process of implementing a new fingerprint system nationwide. That program, will be fully functional in the next 2 weeks.
We utilize a network of Application Support Centers where contract staff overseen by INS will verify each applicant's identity and fingerprint the applicant.
The center's staff will then forward fingerprint cards to the FBI through the INS service centers. The 126 centers, 44 mobile routes, and 39 designated law enforcement agencies will ensure that 92-percent of our customers are within 25 miles of a fingerprint site and 75-percent would be within 10 miles.
In the testing area earlier this week, we delivered notice to the National English and Civics Testing Organizations of our plan to end the existing program, effective August 30th of this year. Since 1991, testing has been done both by INS and a network of 5 national testing organizations and their local affiliates.
The lack of contractual authority and regulatory oversight, however, of the testing entities has given rise to concerns over the integrity of that program. One national entity was terminated from the program in January 1997.
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Last month, 20 employees of various local affiliates were indicted for testing fraud. The INS plans to pilot a program to conduct testing administered by a contractor and overseen by INS staff at the Application Support Centers.
Our target is to provide testing and selected services starting July 1st of this year. Applicants would continue, of course, to have the option of being tested, which the vast majority do, by INS adjudicators during the naturalization interview.
We will continue to work closely with the firm of Coopers and Lybrand and other testing experts to develop a standardized test which would be administered prior to the applicant's filing for citizenship.
The INS has also instituted several measures to standardized processing, including new automated systems. For example, direct mail for N-400 applications permits us to handle the up-front processing at our four automated INS Service Centers, reserving the time for staff in our district offices to actually conduct the interviews. We have added new information to our Internet site. We hope in the future, as well, to institute a program where applicants can gain information on their applications on-line as well.
We have also taken several steps to address the naturalization backlog. The first among those is to identify the bottlenecks in the process in each of our offices.
With that data in-hand, we are developing plans for each site to remedy specific problems, primarily through changing the procedures and supplementing the resources.
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Finally, we look forward to implementing the key recommendations of the re-engineering blueprint that was prepared in conjunction with Coopers and Lybrand.
It is in the context of these major changes in the naturalization program that I would like to note several fundamental concerns that the Service has with the bill.
First of all, the proposed naturalization related measures would duplicate quality assurance measures that are already in place as a result of statutory requirements, regulations, and INS policies and procedures.
For example, the requirement for a definitive response from the FBI on fingerprints is already a part of the existing quality assurance process.
In addition, many of the proposed changes in the bill would impose unnecessary burdens on applicants for immigration benefits and on the service, without any resulting enhancement in the integrity of the process.
The bill would extend from 5 to 10 years the period during which an applicant must demonstrate good moral character.
However, lawful permanent residents are required to reside in the United States for no more than 5 years before naturalization.
This could create a problem with looking back to a person's background prior to their actually immigrating to the United States. Existing law does not limit INS to that 5 year period in making a good moral character determination.
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Mr. SMITH. Mr. Virtue, that seemed to be a fairly quick 5 minutes. We will give you a couple more minutes.
Mr. VIRTUE. Okay, I am sorry.
Mr. SMITH. Two minutes.
Mr. VIRTUE. In our experience, looking beyond the 5 year period rarely yields disqualifying information. Thus, to extend the period to 10 years, as a matter of statute for everyone, would appear to create an unnecessary burden for the applicant and the agency.
Another provision in the bill would bar the naturalization of aliens who are deportable, are subject to an outstanding removal order, or are in removal proceedings because they have been convicted of certain crimes.
Section 318 of the Immigration Nationality Act already bars the naturalization of an alien who is subject to an outstanding removal order for any ground of deportability. That section also prohibits naturalization of applicants while removal proceedings are pending against him or her.
The addition of the bar to naturalizing applicants who are simply deportable, or characterized as deportable, could result in the creation of a class of aliens who are permanently barred from naturalization, even though they may never be subject to removal proceedings or have already been granted relief from deportation.
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Finally, we believe that codifying specific procedural aspects of the naturalization process could impede our re-engineering efforts and in some areas could make process improvements impossible in the absence of further statutory change.
We do not question the need for Congressional oversight in this area. We share the committee's goal of ensuring the integrity of public confidence in the naturalization process.
We do, however, question the wisdom of codifying detailed procedures that we believe are more appropriate to rulemaking and INS policies and procedures in the statute itself.
Once again, I appreciate the opportunity to testify concerning this bill. Mr. Angus and I will be happy to answer any questions.
[The prepared statement of Mr. Virtue follows:]
PREPARED STATEMENT OF PAUL VIRTUE, GENERAL COUNSEL, IMMIGRATION AND NATURALIZATION SERVICE
Mr. Chairman and Members of the Committee:
I am pleased to have this opportunity to appear before the Committee to testify concerning H.R. 2837, the Naturalization Reform Act of 1998.
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Before discussing the specific provisions of the bill, I would like to provide you with a brief overview of the significant improvements INS has made to naturalization processing in the last year, and some of the plans we have for continuing improvements. Mr. Bratt, senior manager of the Department of Justice's (DOJ) Criminal Division, came to INS in April 1997 to spearhead INS efforts to restore the integrity of and public confidence in the naturalization process, and to oversee improvements to naturalization processing in terms of standardization, communication and backlog reduction.
Since establishment of the Office of Naturalization Operations, our number one priority has been to address the integrity concerns in the naturalization program. The Service has achieved a great deal of success in this area since then. Specifically, in December 1997, the KPMG audit of INS naturalization procedures found that INS had effectively implemented the new Naturalization Quality Procedures designed to insure the integrity of naturalization processing.
The INS, in response to requirements in the FY 1998 appropriations bill, is in the process of implementing a new fingerprinting system nationwide, which will be fully functional by mid-March. This program will utilize a network of ''Application Support Centers'' (ASCs) where contract staff, overseen by INS employees, will verify each applicant's identity and fingerprint the applicant using either ink or live-scan fingerprint machines. The ASC staff will forward fingerprint cards to INS service centers, and in turn to FBI for processing. INS will use a combination of 75 free-standing Application Support Centers, 51 ASCs co-located within existing INS space, 44 mobile routes, and 39 designated law enforcement agencies operating under sole source contract agreements to provide coverage. The coverage provided by these sites ensures that 92% of our customers are within 25 miles of an ASC site, and 75% are within 10 miles.
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Since 1991, English and Civics testing has been done by both INS and a network of 5 national testing organizations and their local affiliates. The INS has no contractual or financial agreement with the national organizations. Without contractual authority or regulatory oversight, many concerns over integrity in the program have been raised. One national entity was terminated from the program in January 1997. Last month 20 employees of various local affiliates were indicted for testing fraud. INS has now decided to move forward with a pilot program to conduct testing, administered by a contractor and overseen by INS staff, at the ASCs. Our target is to provide testing at select ASCs starting July 1, 1998 with a phase out of the current system by September 1, 1998. Applicants will continue to have the option of being tested by INS adjudicators on English and Civics during the interview. We will continue to work closely with Coopers & Lybrand, and other testing experts, on developing a new standardized test which, under the Coopers & Lybrand reengineering blueprint, would be administered prior to the applicant filing for citizenship.
INS has instituted several measures to standardize processing, including new automated systems and Direct Mail for all N–400 applications by April. Direct Mail allows for up-front processing of naturalization applications to be done at the 4 highly-automated INS Service Centers, reserving the time of staff at the district office to conduct interviews. Furthermore, INS is dramatically increasing naturalization information available on the public INS Internet web—including naturalization forms, citizenship study materials and a ''self-test'', and eligibility information. We hope in the future to institute a system to allow status inquiries to be made on-line, as well.
The Service has also taken several steps to address the naturalization backlog. As a first step in backlog reduction, INS has collected and analyzed application workload data from every office and identified key ''choke points'' or bottlenecks where applications become stuck in our process. With this data in hand, office-specific plans are being developed to remedy specific problems, primarily through changing procedures and supplementing resources. Finally, we look forward to implementation of key recommendations laid out in the Coopers & Lybrand reengineering blueprint to address processing problems long-term.
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It is in the context of these major changes in the naturalization program that I wish to make clear that the Service believes this legislation is unnecessary and opposes this bill. I will outline the fundamental concerns that the Service has with this proposed legislation.
First, the Service believes that the proposed naturalization-related measures largely duplicate quality assurance measures that are already in place as a result of statutory requirements, regulations, INS policies, and naturalization processing procedures that INS has already developed and instituted. In particular, we note that most of the proposed statutory processing requirements are already part of the current Naturalization Quality Procedures (NQP), including definitive response from the FBI on fingerprints.
In addition, many of the proposed changes in the bill would impose unnecessary burdens on applicants for immigration benefits and INS, without any comparable enhancement of the integrity of the process. INS needs to maintain its focus on the integrity of the naturalization process while continuing to work on the reducing the naturalization backlog.
The bill would also mandate procedures that may not be consistent with the Coopers & Lybrand (the consultants hired by DOJ to help re-engineer the naturalization process) blueprint for naturalization reengineering. If the bill were to be enacted, the new statute could well make it impossible for INS to make further necessary improvements to the naturalization process, on the basis of the consultant's recommendation, without first securing additional legislation.
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The provisions of the bill
I will now discuss the specific provisions of the bill.
Section 2—Bar to Naturalization of ''Deportable'' Aliens
Section 2 would amend §316 of the Immigration and Nationality Act (INA) to bar the naturalization of aliens who, on the date of filing their applications, are deportable because they have been convicted of certain crimes, are subject to an outstanding removal order under Section 235(b)(1), Section 240, or any other provision of law, or who are in removal proceedings. We believe this provision is not necessary and should be stricken.
This provision duplicates, but is less comprehensive than, current law. Section 318 of the INA already bars the naturalization of an alien who has been found deportable for any reason. Section 318 also prohibits consideration of a naturalization applicant if a removal proceeding is pending against the applicant. The current proposal, moreover, would not apply to an alien after the alien files his or her naturalization application. Section 318, by contrast, does bar the naturalization of an applicant who is found deportable and ordered removed after the applicant applies for naturalization.
In addition, initiating removal proceedings provides a sufficient legal basis for deferring adjudication of a naturalization application. If the alien is found deportable and ordered removed, then §318 would mandate denial of naturalization. Even if the immigration judge terminates the removal proceeding, the finding that the alien is not deportable does not prevent the Service, under §318 as it currently stands, from finding that the alien lacks good moral character and so is not eligible for naturalization.
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Finally, barring naturalization of aliens who simply are deportable, but against whom INS has not initiated removal proceedings, could result in a class of aliens who are permanently barred from naturalization even though they will never be subject removal proceedings.
Section 3—Lengthening the Good Moral Character Period
Section 3 of the bill would amend §316(a)(3) by providing that a naturalization applicant must establish that he or she is a person of good moral character, and has been during the 10 year period immediately preceding his or her filing of the application for naturalization. This 10 year good moral character period would apply regardless of the period of permanent residence that an individual applicant must satisfy in order to qualify for naturalization.
INS opposes this provision.
The traditional rule is that the good moral character period has been coterminous with the minimum period of residence as a permanent resident. So for most applicants, the good moral character period is currently 5 years, but the good moral character period is shorter for spouses of citizens, those naturalizing on the basis of military service, etc. If Congress enacted §3, an applicant's good moral character period could well extend to include the period before he or she even immigrated. Note that §316(a)(3) is broader than just ''good moral character,'' as it is usually understood. Rather, §316(a)(3) encompasses as well the applicant's attachment to the Constitution and his or her disposition toward the ''good order and happiness of the United States.'' It would be anomalous to require proof that the applicant had these attitudes even before he or she came to the United States.
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Moreover, each applicant for permanent residence must undergo a background check concerning all grounds of inadmissibility, not just those that relate to his or her moral character. It is not likely that a longer good moral character period would yield additional disqualifying information.
Section 4—Criminal background checks
This section has several provisions. I will comment on each of them separately.
Proposed amendment: The proposed new §106(a)(1) of the Act states that no benefit may be granted unless the applicant has submitted a complete and legible set of fingerprints that have been prepared by an INS employee, a single contractor to the INS, or by a State or local law enforcement agency (LEA). Under certain circumstances, fingerprints may also be prepared at a U.S. consular office under the jurisdiction of the State Department, or a military facility or installation outside the United States and under the jurisdiction of the Department of Defense.
INS response: This provision is unnecessary. The Department of Justice Appropriations Act, 1998, Pub. L. No. 105–119, 111 Stat. 2440, already prohibits INS from accepting fingerprints for criminal background checks unless the fingerprints were prepared by an INS employee or, under limited circumstances, by a state or local law enforcement agency, a U.S. consular office or a military facility or installation outside the United States. This requirement entered into force on December 3, 1997. We are currently in compliance with these requirements. The INS is opening Application Support Centers (ASCs) where contract staff under the supervision of INS personnel will prepare the majority of fingerprints used for criminal background checks.
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Proposed amendment: The proposed §106(a)(2) of the Act would require the Commissioner to request the Director of the FBI to conduct a criminal history check by submitting fingerprints and any supplementary information required by the FBI, to the FBI.
INS response: This provision is unnecessary. It is already a requirement under §335 of the Act that an applicant for citizenship be investigated. As stated in 8 CFR 335, the investigation must include police department checks, a requirement that may not be waived. For this reason, the INS requires applicants to submit an FD–258 for processing with the FBI.
Proposed amendment: The proposed §106(a)(3) of the Act requires the FBI to conduct a background check on each applicant for a benefit under the INA, using the fingerprints and information provided by the Commissioner, and provides that the INS may not grant the application until the INS has received a definitive response from the FBI.
INS response: This provision is unnecessary. Since the November 29th NQP memo, INS policy has established that no naturalization applicant who is required to submit fingerprints may be granted citizenship unless a definitive response has been received from the FBI. Further, the INS has already completed an interim rule, in response to requirements in the 1998 DOJ Appropriations Act, that will formalize this requirement in INS regulations. It has also been national policy, since April 2, 1997, that no application for a benefit other than naturalization may be granted, if the applicant is required to submit fingerprints, unless the INS has received a definitive response on the FD–258 submission from the FBI.
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Proposed amendment: The proposed §106(a)(3) of the Act would require the FBI to use fingerprints and information provided by the INS in order to conduct a criminal history check.
INS response: We request that this section be amended to indicate that the FBI must use information on the FD–258 provided by the INS, not solely the fingerprints. INS employees do not have authority to classify fingerprints and must submit the best fingerprints available. Despite the best efforts of the INS and other law enforcement agencies, and despite, as well, the rigorous training of the FBI fingerprint classification specialists, the FBI may find that the submitted fingerprints are unclassifiable.
Accordingly, the expression ''using the fingerprints'' should be stricken or clarified to permit the FBI to use the FD–258 in its entirety, not just the fingerprints. It is, in fact, the case that the FBI may find the applicant's name, date of birth, and other biographic information on the FD–258 sufficient in order to run a background check of an applicant in the Criminal Justice Information System (CJIS) database. When the FBI is satisfied that this other information is sufficient, the INS should be able to rely on the FBI's expertise. This alternative, of course, would only be available if the FBI concluded that a fingerprint check is not feasible but that a valid background check was still possible.
Proposed amendment: Proposed Section 106(a)(4) of the Act requires that the INS conduct an investigation of an applicant's complete criminal history record.
INS response: This provision is unnecessary. It is already an internal INS policy requirement, as part of the NQP, that an interviewing officer request an applicant to submit the criminal history record for every offense listed on an FBI rap sheet, the applicant's file, any police clearances provided by an applicant, or admitted to by the applicant under oath during the course of an interview. This amendment merely enacts the already existing policy. However, this requirement is under review, since it has been the INS' experience that applicants are not always able to provide such documentation.
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For example, there have been instances where a law enforcement agency could not provide a police clearance for a particular offense because the agency no longer has the record. Instead, the agency may be able to provide a ''name-search'' clearance for an applicant. If this provision remains in the bill, we request that it be clarified to allow INS to accept alternate documentation for a criminal background clearance. As written, this provision limits the Service from accepting alternate documentation for a criminal background clearance.
Proposed amendment: Proposed §106(a)(5) of the Act would require that the INS employee who conducts the examination of the applicant document the review of his or her recommendation by another Service officer, when the applicant has a criminal history record that ''bears upon the applicant's eligibility for naturalization.''
INS response: This provision is unnecessary. This review is already an internal policy requirement and has been so for all naturalization examiners since November 29, 1996. However, the Service is currently reviewing this requirement to take into account the relative experience of adjudicating officers. District Adjudications Officers (DAOs) are required to demonstrate independence and proficiency in adjudicating complex cases in order to be promoted to senior grade levels. A statutory requirement to document secondary review of cases involving potentially disqualifying criminal history records without consideration of an individual officer's skill and experience could radically affect and redefine the position requirements for a naturalization DAO. The policy may extend the processing time of an application without taking into account the experience of senior officers who do not require an extra level of review. Making this requirement a statutory requirement would preclude the Service from modifying the policy to reflect the greater competence of more experienced officers.
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Proposed amendment: The proposed §106(c)(1)(E) of the Act would require a background check for any person who has filed a petition to accord a child defined in section 101(b)(1)(F) classification as an immediate relative under §201(b)(2)(A)(i), and any additional individual, over the age of 18, whose principal or only residence is the home of such person.''
INS response: This provision will provide useful clarification of regulations already promulgated by the INS; however, the proposed amendment should be changed to read:
(E) A person who has filed a petition to accord a child defined in section 101(b)(1)(F) classification as an immediate relative under section 201(b)(2)(A)(i), and any additional individual 18 years of age or older, whose principal or only residence is the home of such person.
Proposed amendment: The proposed §106(d) of the Act would require the Attorney General to charge fees to cover criminal background checks.
INS response: This provision is unnecessary. INS already has the authority for collection of a fee for fingerprinting, as provided under the Department of Justice Appropriations Act, 1998, Pub. L. No. 105–119, 111 Stat. 2440.
Section 5—Mandatory interviews for adjustment applicants
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Section 5 would enact a new §245B, requiring each and every applicant for adjustment of status to that of an alien lawfully admitted for permanent residence to appear ''before an employee of the Service'' for a personal interview concerning the applicant's eligibility. Since the provision is not specific, it appears that it would apply to all forms of adjustment to permanent resident status, whether under §209, 245, 245A, or 249 of the INA or under special adjustment provisions, such as the Cuban Adjustment Act of 1966.
The Service already has adequate authority to require the personal interview of any adjustment applicant. Many cases, however, are quite straightforward and a personal interview is not necessary; consequently, the Service has allowed for a decision to be made on the adjustment application without a personal interview. Conducting an interview in every adjustment case would require the Service to divert significant resources from other essential programs and would greatly delay the adjudications process. The Service should continue to have discretion to determine if a personal interview is necessary, if the Service is satisfied that the interview will have little or no probative value. The Service will, at a minimum, continue to require personal interviews in cases of apparent fraud, misrepresentation, other immigration violations, or whenever there is a need for clarification.
If Congress decides to enact this provision, Congress should at least replace ''an employee of the Service'' with ''an immigration officer or immigration judge.'' If not, then an alien who seeks adjustment of status in removal proceedings would be required by statute to be interviewed by an INS officer, in addition to the alien's appearance before the immigration judge who decides the case.
Section 6—Naturalization Interviews
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As with §4, this section has several provisions. I will comment on each provision separately.
Proposed amendment: Section 332 of the Act would be amended to include a requirement that an examination of an applicant for eligibility include a personal interview, and mandates evaluations of English language skills, discussion of criminal history records, verification of each statement on the application.
INS response: This provision is unnecessary and inadvisable. INS regulations (8 CFR §335.2) already require an applicant to appear for interview. Nevertheless, the Service is currently considering amending the regulation to permit the Service to deny naturalization, without a personal interview, if the record reveals some clear statutory ineligibility. If the Service reviews the record, and finds that an applicant is ineligible to naturalize (e.g., has not met the statutory residency requirements, has failed to submit requested initial information, etc.), it may be advantageous to amend the regulation in order to allow denial of the application without requiring the applicant to be fingerprinted and scheduled for an appearance. If the Service has knowledge that an application must be denied, it will save the Service and the applicant time and money to adjudicate the application without requiring an appearance. However, if the bill is passed, the Service will be required by statute to interview an applicant, knowing that the application must be denied.
Proposed amendment: The proposed new Section 332(a)(i)(1) of the Act would require an applicant to demonstrate the ability to speak and understand words in ordinary usage in the English language (unless otherwise exempted).
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INS response: This provision is unnecessary. Under §312 of the Act, applicants are already required to demonstrate the ability to speak and understand English words in ordinary usage, unless otherwise exempted.
Proposed amendment: According to proposed new §332(a)(i)(2) of the Act, an applicant shall be required to describe any criminal offenses, other than minor traffic violations, during the course of the mandatory interview.
INS response: This provision is unnecessary. It is already an INS policy requirement that naturalization applicants be requested to submit final dispositions for all criminal offenses. In the alternative we request that this language be amended to omit references to ''minor traffic violations.'' To leave this reference in place could prove confusing and misleading, and could result in an applicant's withholding information that is relevant to his or her application. Depending on the actual statutory elements of an offense, what may be called ''minor traffic violations'' could render an applicant ineligible for naturalization. For example, in California, failure to appear in court, a violation of §40508A of the Vehicle Code, and failure to pay a fine, a violation of §40508B of the Vehicle Code, are both misdemeanor violations, regardless of the underlying offenses. Accordingly, if an applicant for naturalization has recently failed to pay a fine resulting from a simple parking ticket, he or she may have been convicted of a misdemeanor offense of failure to pay the fine, and may be on probation. An applicant who is on probation is ineligible to naturalize. Again, depending on the state, an examining officer may be compelled to investigate ''minor'' traffic violations, because they may lead to offenses or dispositions that render an applicant ineligible for naturalization by statute. The proposed amendment in the bill is too limiting and does not take into account local or state law.
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Proposed amendment: The proposed new §332(a)(i)(3) of the Act will require an interviewing officer to verify each statement on the N–400, and any documents submitted in support of the application.
INS response: INS opposes this provision. Its effect would be unduly burdensome on the INS and on the applicant. Information on the application includes statements on the applicant's mailing address, residences for the last five years, employment for the last five years, marital history, children, a range of questions relating to the applicant's good moral character, and affiliation with any organizations. The intent of the amendment is unclear. If the intent is that INS verify all such information as part of a detailed investigation, an officer would have to visit the applicant's Post Office box in order to verify its existence, visit the applicant's homes for the last five years, talk to employers and visit work addresses for the last five years, visit the applicants spouse or spouses, all children, and verify each and every good moral character statement. These stringent investigatory requirements would apply for each and every naturalization application.
Further, it should be noted that many applicants list residences, employment, and former spouses and children from various states and from overseas, and it would not be possible to verify this information in a timely or practical manner. According to §335 of the Act, a detailed neighborhood investigation of an applicant is required, but may be waived at the discretion of the Attorney General. Further, under 8 CFR 335.1, neighborhood checks may be waived at the discretion of the District Director. Such checks are generally unnecessary and do not add to the value of the adjudicative process. Consequently, these investigations are waived almost without exception.
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Current INS regulations (8 CFR 335.2) provide clearer and more practical guidance in directing verification of information. Unless an applicant has been granted a §312 exception due to a disability, information on the N–400 is orally verified at the time of interview. As required under 8 CFR 335.2, at the conclusion of an examination, an applicant must sign the N–400 application under penalty of perjury to affirm he or she knows the contents of the N–400 application, supplements, and all corrections, and that the amended information on the application is true.
It is clear that verification of information, as required by regulation, is already a clearly outlined and integral part of the adjudication process. Mandating this procedure, or increasing the scope of the verification through vaguely worded statutory change, is impractical and unnecessarily complicates current practices.
Section 7—Citizenship testing
Proposed amendment: The bill requires INS to develop a master list of testing questions by July 1, 1998, to administer all tests solely through INS or a single contractor (with continual oversight by INS), and to allow for re-testing persons suspected of cheating on one of the previously noted tests.
INS response: This provision should be stricken. INS is currently involved with a complete re-evaluation of how section 312 determinations are made on English and Civics. As part of the first phase of this evaluation, we are proposing to terminate the current outside testing program in its entirety. At the same time, and with the assistance of our consultants on this effort, we plan to pilot a prototype method for pre-testing applicants on English and Civics at the newly opened Application Support Centers (ASCs). Our tentative timetable is to begin the pilot on July 1 of this year, and phase out of the current program by September of this year.
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To amend the Act with these suggested requirements will limit the Service's flexibility in our ongoing work with Coopers & Lybrand and in our effort to create a testing program that is safe from fraud and that accurately measuring the applicant's English or Civics ability. We request the Congress grant us time to pilot our proposed testing approach and to develop accurate tests prior to any substantive changes to the INA.
Section 8—Requirements with Respect to Resident Alien Cards
Proposed amendment: New §274E would permit the Commissioner to impose a civil penalty of $50 upon an alien if he or she fails to report the loss, theft, or destruction of the alien registration card within 7 days after the date that the loss, theft, or destruction occurs.
INS response: This provision should be stricken. In its current form, the provision gives the Service no workable means of accurately determining when, or even whether, the individual lost the Form I–551. Since there is no way to verify when the alien actually lost the Form I–551, it is also impossible to determine when 7 days have passed since the date of loss. At a minimum, we would suggest a similar procedure to paragraph (b)(1)(B) of the section entitled ''SURRENDER OF RESIDENT ALIEN CARD UPON NATURALIZATION.'' According to this paragraph, if an individual loses his or her I–551, that person must submit an affidavit to the Attorney General stating that the card was lost and the approximate date and circumstances of the loss. If an alien were required to submit a similar affidavit for a loss of the Form I–551, the Service would have a manner in which to make the $50 civil penalty more enforceable.
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Even with that amendment, we believe this requirement would be generally unenforceable. It costs a lawful permanent resident $90 to replace an ARC. It is unclear whether the applicant will be required to pay the fine in addition to the replacement cost of the ARC. If the applicant has lost his or her ARC and wishes to naturalize, there is no incentive to pay the N–400 filing fee of $95 and the replacement cost of $90, when the applicant can swear that the card was lost and pay a lesser fine of $50.
Further, it is not possible to verify when an applicant has lost an ARC. An applicant could tell an interviewing officer that he or she had lost the card within the last seven days. The applicant would thus have reported the loss within 7 days after the date he or she discovered the loss, and would not be fined. There is no way to enforce this requirement, even if the fine were increased to a more punitive amount.
Proposed amendment: New §338(b) of the Act would require that the Attorney General refrain from delivering a certificate of naturalization to an applicant when the applicant has failed to turn in his or her ARC, unless the applicant has submitted an affidavit attesting to the circumstances of the loss, theft or destruction of the card, and 30 days has elapsed since the submission of the affidavit.
INS response: This provision is unnecessary. Current policy requires that an applicant complete an affidavit attesting to the loss, theft or destruction of the ARC before the applicant may be naturalized. This is a current processing requirement under the NQP. The proposed amendment does nothing to clarify or improve the integrity of current procedures, but does create a bureaucratic and mandatory processing delay of 30 days. If the intent of the language is that a person not be naturalized unless he or she has submitted the affidavit and 30 days has passed, the language should be amended from ''may not deliver a certificate of naturalization'' to ''may not naturalize''.
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Proposed amendment: New §338(b)(2) of the bill would authorize INS to investigate claims that naturalization applicants have lost their ARCs.
INS response: This amendment should be stricken. The purpose and the scope of such an investigation are unclear. If an applicant submits a sworn statement attesting that he or she has lost the ARC, or that it has been destroyed or stolen, how could the Service investigate the claim? Generally, such statements must be taken at face value unless derogatory evidence is received. In most cases, the INS could neither prove nor disprove the loss, theft or destruction of an ARC.
Section 9—Revocation of naturalization
Proposed amendment: New §340(a)(2) and (d) would clarify the standards for proving that a person obtained naturalization by the willful concealment or misrepresentation of a material fact.
INS response: The amendment relating to the definition of material fact would be quite helpful. However, this amendment should not be limited to judicial proceedings to revoke naturalization, but should apply as well to all administrative and judicial proceedings under the INA. For this reason, INS believes that the proposed amendment should be to §291 of the INA, not to §340.
Proposed amendment: New §340(j) would establish a 5 year statute of limitations for an administrative proceeding to correct, reopen, alter, modify or vacate a grant of naturalization.
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INS response: If this provision is to be enacted, it should be amended by adding to new §340(j) the following two sentences:
The fact that an administrative proceeding to correct, reopen, alter, modify or vacate an order naturalizing a person has become barred by the passage of time under this subsection shall not bar a civil action under section 340(a) of this Act for judicial revocation of naturalization. The United States may bring an action under section 340(a) of the Act at any time.
Section 10—Quality assurance and improved oversight of the naturalization process
Proposed amendment: The INS would be required to ''establish a process (including internal audit procedures, other audit procedures, or both) to review the ongoing compliance with all laws, policies and procedures affecting naturalization by each office'' that has naturalization related duties.
INS response: This provision is unnecessary.
The naturalization process has already been subject to extensive audits, and the INS has proposed subsequent audits. The INS has completed an internal review to assess compliance with the proper processing procedures for naturalization applications. The Office of Internal Audit (OIA), in conjunction with the Executive Office for Naturalization Operations (EONO), completed a review of 4 INS Service Centers and 32 naturalization sites within 21 Districts. These reviews included the Service Centers and the Districts that receive the majority of the Service's applications, and were a good measure of the successful implementation of the updated NQP as a whole. The review was comprised of several teams of 3 to 5 senior INS employees, and site visits occurred at intervals starting in August and ending in October. The reviews provided Headquarters INS and the field with feedback on the implementation of the naturalization quality procedures implemented in June 1997.
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During FY97, INS, with JMD, also arranged for external audits of the naturalization process. The final results of the external audit review have been extremely favorable. On September 4, 1997, KMPG Peat Marwick reported that the INS had successfully distributed and trained Service Centers and local offices on the updated NQP within the Districts and Service Centers visited. Further, on December 16, 1997, KPMG Peat Marwick provided a final audit report that found of 24 INS Service Centers, District Offices, and CUSA sites visited, 20 had been fully compliant with critical naturalization processing controls. Of the 4 sites that were not in compliance, a zero tolerance assessment method found one error in each of two offices, and two errors in a third office. In total, of approximately 4,000 files sampled in the 24 offices, 11 files had 12 errors. KPMG Peat Marwick reported that its review results indicate the INS has successfully reexamined its processes and implemented improved processing controls to ensure no ineligible naturalization applicants are granted citizenship.
KPMG Peat Marwick found that the INS has successfully implemented recent naturalization processing requirements, specifically citing that such compliance indicates a reduction in the ''likelihood of naturalizing aliens with disqualifying convictions.'' The INS will shortly commence a new version of the NQP, incorporating suggestions from various audit findings and other feedback. When this version is implemented, the INS will again conduct an internal review of the NQP implementation at various INS sites. This review would be similar in scope to the one that was just completed under OIA's guidance. On an ongoing basis, OIA reviews field office operations every two to three years. These reviews include the naturalization process. Finally, on a monthly basis, each naturalization office reviews 120–200 files for compliance with laws, regulations, and procedures. The results of these reviews are sent through the chain-of-command, as well as to OIA. This continuous review of naturalization files provides INS with capability to identify and correct problems quickly, and analyze data for trends towards improvement. Therefore, we are requesting that the language in §10 be removed from the bill and that the Service be allowed to continue with current audit plans.
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Once again, I appreciate the opportunity to testify concerning this bill. I will be happy to answer any questions.
Mr. SMITH. Thank you, Mr. Virtue.
I noticed in your complete testimony, which is very detailed, that when you were going through the various provisions of the bill, you used the word ''unnecessary'' at lest a dozen times.
I would simply reinforce the point that it is exactly because of the actions of the Administration that this bill is so eminently necessary.
The point is that we would not be here today if, in the opinion of a lot of people, I think including the Attorney General, the citizenship process had not been trashed in 1996.
The safeguards that we are talking about today, I think, offer the Administration a wonderful opportunity to put into the statute procedures that are now optional.
It seems to me that the lesson for all of us to have learned is that it is better perhaps not to leave it to the discretion of individuals, who might be subject to political pressure of one sort or another, as to whether or not they are going to comply with written regulations.
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Clearly, the best way to approach an abuse of any process is to write into statutes what the correct procedures are so that you do not have irregularities occur.
In this case, it may well because necessary for this subcommittee to conduct future hearings or even investigations in the Citizenship U.S.A. Program. That is not the point of today's hearing. Having said that, I will simply remind you that, to reenforce what I have said, we would not be here today, but for the irregularities that occurred.
In 1996, several weeks before the election, a lot of these irregularities came out in public. The Administration said no. Trust us. Nothing is wrong.
One week after the election, the INS admitted that there were irregularities and that they would be corrected. A month later, I was personally assured by the Administration that all of the irregularities had been corrected and henceforth we would never see them again.
Five or 6 months after that personal reassurance, Peat Marwick conducted their study and found that, as I mentioned in my opening remarks, 23 out of 24 regional offices were out of compliance and in some cases had never even been notified of the new procedures.
That does not give the American people a whole lot of confidence that we should leave future enforcement of regulations up to individuals who, in the past, have not followed those procedures.
So, here you have a bill that, in the case of a dozen of its main provisions, you say that they are not necessary, or that you have the authority to correct them, or that you have corrected them.
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Why would you not want these procedures in a statute to give you the strongest legal base possible to make sure that the irregularities never occur again? Why is that not helpful?
Mr. VIRTUE. Because we see the naturalization process, and other administrative processes, as needing continuous improvement, continuous monitoring to ensure compliance.
That really is the answer to what the chairman has indicated were really fundamental problems in the adjudication process that bore on the actual determinations made in naturalization.
We believe that, particularly in some of the instances, including specific procedures in the statute would limit our ability to continue to improve and evolve that process.
When we say ''unnecessary'' in a number of cases in the testimony, in large respect what we are pointing out is that statutory authority already exists for us to make these policies and procedures. In most of the cases, if not all, those have already been done.
Mr. SMITH. As far as I am aware, most of the irregularities, and that is a nice word for what did occur, were the result of discretionary lack of enforcement of regulations that were already in existence or policies that were already in existence. Having seen that happen once, it seems to me that we would want to take every step possible to make sure that they did not occur again. Without going into any great detail, clearly you are aware of various memos and e-mail that were sent from the Administration to the INS hurrying the process, forcing the process to be expedited with all kinds of political goals in mind.
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If that kind of pressure was put on the INS once, it is entirely possible to think that at some point in the future, it might be put on the INS again.
It seems, again, that the American people would want to have statutory safeguards in place to protect them from whatever administration or whatever individual might choose to disrupt the citizenship process.
Let me say at the end—and I may be wrong, maybe this is wishful thinking—considering that about a dozen of the provisions you have considered to be unnecessary, nevertheless I would argue it is far better to have them in the statute than to leave them at the discretion of the Administration, given the fact that there were only one or two provisions that you actually opposed.
Maybe there is some tweaking around the edges that would improve the bill. I am hoping that there would be a way for us to go forward with your support.
I will say, as I have said awhile ago, I hope it is not necessary to have additional hearings or investigations. I do not want to do that.
If it takes that to point out how bad the system was and why we need statutory improvements, I will be happy to pursue that course as well.
I am hoping, as I say, that there is grounds here for a bipartisan effort, and jointly with the leadership in Congress and with the Administration, to try to make sure that there is never even the opportunity, never even the temptation, to have anyone again undermine the citizenship process.
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I had one other last question I would like to end on. It is true, is it not, that the INS is attempting to revoke the citizenship of more than 6,000 individuals?
Mr. VIRTUE. We are reviewing approximately 6,300 case.
Mr. SMITH. In a previous hearing, the INS testified——
Mr. WATT. Let us hear the answer.
Mr. SMITH. I am refreshing his memory.
Mr. WATT. You asked a question. Can we hear the answer?
Mr. SMITH. In just a minute.
In a previous hearing, I thought that the INS testified that there were more than 6,000 felons, whose citizenship they were going to remove. Now, I am happy to hear your answer to that.
Mr. VIRTUE. We have identified, during the criminal case review that was done, some 6,300 cases that were either identified as being presumptively ineligible, based on a conviction, or that, and I think there were some 300 or so cases that fell into that category, as well as others that were identified as needing some further action.
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Mr. SMITH. The total of those was around 6,300.
Mr. VIRTUE. Right. We are reviewing all of those cases to make an assessment whether revocation in those cases is appropriate. We are pursuing revocation action on those that are.
Mr. SMITH. Were there more than 11,500 aliens with criminal records who were improperly given United States citizenship, according to Peat Marwick?
Mr. VIRTUE. I am sorry.
Mr. SMITH. According to Pete Marwick, were there more than 11,000 aliens with criminal records who were improperly given citizenship?
Mr. VIRTUE. No. As I said, the numbers that were identified were, I think it was 369 that were presumptively ineligible.
Mr. SMITH. That was from a small initial universe.
Mr. VIRTUE. That is right.
Mr. SMITH. But the overall figures, just to go back to that, are about a million new citizens, of whom 250,000 were able to become citizens without knowing whether they were eligible or not. You agree with that figure, I presume?
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Mr. VIRTUE. By reviewing the other cases, we have assessed that those were not felonies that would have——
Mr. SMITH. I am not suggesting that 250,000 were felons. I am just saying there were 250,000 people who were allowed to become citizens without knowing whether they were eligible or not, according to the Pete Marwick study.
Mr. VIRTUE. I am sorry. I was still answering the 11,000.
Mr. SMITH. Okay. Well, the 11,000, these are individuals with criminal records who may or may not have been improperly granted citizenship. Is that the case?
Mr. VIRTUE. In reviewing those cases, the convictions that the people had in the cases over and above the 6,300 would not have disqualified them for citizenship.
Mr. SMITH. I think we are talking about different things. I will be happy to direct you to the Peat Marwick study. That is where those figures came from that I mentioned. Okay, thank you. Mr. Watt.
Mr. WATT. Thank you, Mr. Chairman.
Let me do a couple of things that I failed to do in my opening statement. I wanted to make sure I did officially welcome Mr. Angus to his new interim position, or whatever the status is.
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Also, to apologize, if I need to, to some of the witnesses that I may not be able to hear because the Banking Committee is in the middle of a hearing. It started at 10 a.m. It is a mark-up of the IMF bill.
Whenever they need me, they are going to come and yank me out. I just do not have any control over that. So, I may have to get up and walk out abruptly.
It will not be because of anything anybody is saying, although, it might turn out to appear that way. I want to make sure that nobody misunderstands in advance.
Mr. Virtue, you talked about the new fingerprint program being fully operational by the middle of March or April?
Mr. VIRTUE. March.
Mr. WATT. Now the old fingerprint program, the Fingerprint Service Centers, the privatization of the fingerprinting process which was so vigorously fought for by prior Republican administrations, when they believed in private enterprise, that was eliminated in October of last year, I wonder if you can tell us what has been happening between October of last year and March of this year, and what impact the elimination of the old program is having on the backlogs in process.
Mr. VIRTUE. I would like to ask if Mr. Angus could answer that.
Mr. WATT. All right.
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Mr. ANGUS. Certainly. Under the statute as of December 3rd, we stopped accepting fingerprint cards from designated fingerprint services.
What we have been about for a goodly number of months is setting up a system to replace the designated fingerprint sites that we would no longer be accepting fingerprints from. We have used modern technology, which includes the ten print machines as a basis for our bringing the printing in-house, as well as conducting the printing by the use of——
Mr. WATT. Maybe I could get you to give me a description of the processing. What I am more interested in is what impact has this change had on the backlogs, if any. Maybe you can give me the written analysis of the processing changes. Give me that in writing.
[The processing changes referred to follows:]
BUDGET RATIONALE AND THE IMPORTANCE OF SITE SELECTION
Both budget requirements and site selection for this project were driven in large part by several related Service wide initiatives that assume Records Centralization (RAPID) will be implemented. Timelines for RAPID take into account these initiatives.
With the passage of Welfare Reform legislation and the Immigration legislation of 1996, which mandated a major expansion of the Employer Verification Pilots, INS is compelled to make significant improvements in the integrity and quality of status information data so that automated access by the expanded external customer base can be improved. Without data improvements, INS will need to continue staffing a verification process that now takes place in our records rooms and involves personnel researching records to support the external inquiries. Records Centralization (RAPID) has as one of its primary objectives and funding requirements, a massive and controlled data improvement process.
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INS will be redesigning its Naturalization process, and fully implementing Direct Mail to support all Benefits processing in FY 1998. The removal of records and the related support functions from the over 80 field offices that now house records is an underlying planning assumption for the teams that are implementing these two projects. Expansion space is required in the Field Offices, and the support processes in Records need to be standardized and consolidated in a production environment that can be controlled and funded intelligently.
With the passage of Immigration Reform legislation in FY 96, a host of new Records requirements will need to be addressed. Of most concern to the Records program is the operational support requirements for the INS Enforcement activities related to Expedited Exclusion. This is already resulting in the need to create new records and to support widely dispersed Border Patrol Sectors and Ports of Entry. This can be done most effectively from a central facility operating 24 hours with enhanced communications capabilities.
BUDGET ASSUMPTIONS
Five year cost projections (134 million) were based on the assumption that the project would be initiated at the beginning of a fiscal year. By beginning implementation further into the fiscal year, first year and second year schedules would move across fiscal boundaries and change the funding stream requirements accordingly.
The life cycle budget consists of three major funding requirements
Implementing the Central Files Facility (National Records Center). These costs include the lease and build-out, staffing, furniture, ADP, communications, and other infrastructure requirements. This phase also includes a pilot that will move the Los Angeles District records to the Center and evaluate the process changes prior to moving ahead nationally.
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Transition funding supports the INS plan to bring the Center up to full staffing and moving as many records as possible from all the field offices in a short period of time. We believe this dramatic implementation will cause the least disruption to the Service as a whole, since offices will be brought into the implementation early on and be operating under the same processes, policies and operations support systems.
Data reconciliation is a third major funding item. Once we have control of the paper records in a centralized production environment, we will consolidate multiple records on individuals, and update the Central Index System data with the most recent information in the associated paper record. This investment in data integrity will allow our users to be able to rely on the electronic information available to a much greater degree and should enhance our internal operational performance. Our external verification customers will realize a significant improvement in the timeliness and accuracy of our automated responses.
Out-year operational costs drop off after this data reconciliation stage.
Given where we are in the budget year and what can be accomplished (assuming that we can begin in January), we will lease and build out 160,000 sq. ft., which is the core operational and administrative area plus enough files space to accommodate 25 million records. We will hire core staff sufficient to operate the center and handle the move of the Los Angeles records into the pilot environment. We will also fund transition and training activities concurrently so that the field offices are prepared for the FY 99 transition to a central environment with re-deployment and re-training needs. The estimated adjusted budget requirement for FY 98 is 16 million dollars.
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RATIONALE AND COST BENEFIT CONSIDERATIONS WHICH SUPPORT LEE'S SUMMIT RECORDS CENTER LOCATION
Cost benefit was measured in a number of ways:
Direct cost savings—it is cheaper to lease space and do business in one center located underground than it is to continue current operations. Furthermore, it is cheaper and more advisable to do business in Lee's Summit, Missouri than in other locations based on reduced operating costs (low utilities, constant ambient temperature, proximity to Federal Records Center), as well as reduced risk.
Offsets—we can recover costs to support other INS project requirements if we centralize. (Empty the records rooms in Districts and use space for other operations or save shipping and handling costs related to our Federal Records Center business by locating next to one of their centers)
Cost savings realized in the implementation of the project because we can lease and build out a center on a compressed timeline. (By being able to have a center operational in FY 98, we can move the bulk of the INS field offices into a central environment and begin to recover space and costs much more quickly. For example, if a District moves or Service Center build-outs, we can cancel current records room requirements in these offices.) If we have to alter the recommended facility location and re-start planning process for a new site, the delay in implementation will delay savings that will not be recoverable, and seriously undermine the related Service initiatives (Direct Mail, Naturalization re-engineering and Quality Procedures, Verification Services.)
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Cost savings because we will be able to do business in a more efficient environment. It is easier to address fundamental records management and operations in a single center and be able to realize economies of scale. In addition, one of the fundamental objectives of the entire project is to increase reliance on improved electronic data and avoid hiring people to resolve problems created by bad information.
Indirect cost savings to the Service. This evaluation relates to the cost savings realized by the operational components of the Service who can do business more efficiently in a centralized environment that can also ensure more accurate records and data. Many activities rely on accurate and timely records. Examples—better decisions on detention (who to detain, and who to deport after detention is completed), less dependency on temporary (''T'') files, better decision support (knowing prior to approving benefits that we have adverse information in another file that is not currently accessible.)
Finally, more accurate information that is accessible to the internal and external customers of Records will alleviate the liability to the Service and external entities that would pertain to bad decision making based on inaccurate data.
SITE SELECTION—COST BENEFIT/OPERATIONAL RATIONALE
INS conducted a cost-benefit analysis that compared its existing records rooms locations in all its field offices with an estimated cost for a single center. This was done to support the INS and Department of Justice decision process. Significant cost savings were projected with adoption of the single center option.
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INS conducted an analysis of centralization options addressing the feasibility of one center, multiple centers, or outsourcing. In order to analyze the outsourcing option, we prepared a CBD notice inviting firms to provide a statement of capability. We then analyzed the respondents. The resulting recommended option was the single hub from the standpoint of cost and control. (summary provided—''Options Study'')
INS funded an independent analysis to support a site selection based on risks, costs, infrastructure requirements, and demographics. (study included—''Records Management Facility Siting Study'')
INS investigated other agency solutions to centralization. We compared existing facilities, and were able to benefit from a cost-benefit conducted by the National Archives and Records Administration (NARA), which supported construction of their Lee's Summit facility.
INS realized that given the high level of interaction with the Federal Records Centers we will need to partner with NARA (we are one of their biggest customers), and that a contiguous physical location would be a very important objective.
Mr. ANGUS. The processing changes we are about has had no affect on the backlog. We have, as of today, 100 fingerprint sites that are open and operating. There are about 49 Application Support Centers. There are about 51 co-locates.
We expect to have 14 mobile units in operation by the end of this month. By the end of April, all our fingerprint sites should be up and running.
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Mr. WATT. So, should I gather from this there has been absolutely no impact on the backlogs as a result of this change? Is that what you are saying? I find that hard to believe.
If that is the case, then the system is already in place. What is the significance of the middle of March? You are saying nobody got delayed any further as a result of this change over?
Mr. ANGUS. Not with the DFS. We are up and printing. We are providing service in and out of our centers within a period of about 15 minutes from the time the applicant comes in until the applicant is printed.
Mr. WATT. But how long does it take somebody to get into this? I mean there has got to be some impact. You are saying there is absolutely no impact anywhere in the system. We stopped doing fingerprints in the private sector. We did not have a system in place in-house to replace it and there has been no inpact?
Mr. ANGUS. The impact of the old system was erroneous data. The need to reprint people two and three times because we had erroneous information on mass heads or we just had bad prints.
With the system we have in place now, those are issues of the past. Those are not issues that are causing us a backlog issue at this point.
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Our backlog right now, pure and simply, is a product of volume that is coming in and a product of the step that we instituted as a matter of integrity of the program that no person is interviewed at the INS without a definitive response from the FBI.
That check and the volume of applications are the two largest single features that contribute to our backlog.
Mr. WATT. So, you do not need any more manpower, is what you are saying?
Mr. ANGUS. No, no.
Mr. WATT. It is all the FBI.
Mr. ANGUS. No.
Mr. WATT. Nothing internal to you all. So, when you all come and ask for more manpower, we should just ignore that?
Mr. ANGUS. No, sir. I am not saying that.
Mr. WATT. I mean, I do not know what you are saying. You just told me that. You have got to be on one side or the other of this.
Mr. ANGUS. No, no. There is a third option.
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Mr. WATT. What is third option?
Mr. VIRTUE. All Mr. Angus said was the change from the contracting out or the delegating of the fingerprint process to this new technology done out of INS Service Centers has not contributed to the backlog. He did not say that INS has not contributed to the delay.
Mr. ANGUS. That is correct.
Mr. WATT. Okay. I just wanted to be clear on what it was you were saying. I did not see that option. Then I thought I heard you say it was all the FBI that was holding it up and nothing inside the INS. So, why do we have a 726-day delay in Charlotte, North Carolina?
Mr. ANGUS. Well, Charlotte is one of our sites that we have already transferred. The front log of applications that were pending in Charlotte have been transferred to our Texas Service Center for processing.
We anticipate that with that processing occurring out of the Texas Service Center, which is the actual receipt of the application, its entry into the system, and the search for the ''A'' file to be matched up with the application is going to result in that group of people being put into the process much quicker than they otherwise would have.
Mr. WATT. So, has that been implemented since November 1997? I mean if somebody got a letter in November 1997 saying to them we cannot get to you until 736 days from now, is that still true or is it not true?
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Mr. ANGUS. That is not still true.
Mr. WATT. Okay. What is the backlog now?
Mr. ANGUS. In Charlotte?
Mr. WATT. Yes.
Mr. ANGUS. That, I do not know the answer to. With their front-log shifted to the Texas Service Center, they no longer have N400 applications that are just sitting in the Charlotte District Office as of this time.
Mr. BERMAN. Will the Gentleman yield?
Mr. SMITH. I am afraid we are going to need to go on to our next panel.
Mr. WATT. Well, I am just taking about the same amount of time that you took, Mr. Chairman.
Mr. SMITH. No. Listen, Mr. Watt, in the past I have always been generous. I hope you will not make any comments about my taking a couple of minutes.
Mr. WATT. I did not make any comments. That is why I am so surprised you are making comments about me taking a couple of minutes.
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Mr. SMITH. Look, the Gentleman has gotten good news in response to his question. The waits are not as long as expected. Let us embrace that, be grateful for the trend, and go on.
Mr. WATT. I am prepared to embrace it, but I would like the benefit of yielding to my colleague, if you do not mind.
Mr. SMITH. Your time has expired. Mr. Berman will have his own time in just a minute.
The Gentleman from Indiana, Mr. Pease, is recognized.
Mr. PEASE. Thank you, Mr. Chairman.
Mr. Virtue, I should preface my question with a statement about my general inclination, which is not to put into statute what I think can better be done by regulation. I prefer not to get directly involved in the management of an agency.
I should also say that I have been very positively impressed with you personally in your work and your appearances before this committee.
Having said all of that, it is difficult for me not to be sympathetic to the bill that has been presented because of the clear problems, and that is a nice way to put it, that have been shown to exist in this program over the last several years, and the lack of confidence that things are different enough now, from what they were a year ago, for us to sit here and not respond legislatively.
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Having said all of that, let me say though that I have scanned this morning, and we just got it this morning, your testimony.
It seems to me that you have pointed out some things in here that we ought to pay attention to, even if we go forward with what you think is sometimes unnecessary.
So, I would like for you to help me understand two areas that I need some clarification on. The first one deals with the fingerprinting issue. You make the suggestion that the FBI must use information on your FD258 provided by the INS.
Can you explain to me more what that is and why you think that form ought to be used instead of some other system?
Mr. VIRTUE. I do not think it is really an issue about the form, but the statute would require that the FBI use the information provided by INS and the fingerprint in order to do the criminal history check.
There are some circumstances, no matter how hard we try and the quality of the process where the prints are just not going to be able to be used by the FBI. Our people are not qualified or designated to classify prints.
So, we provide the prints to the FBI that we either obtain ourselves or get from the state or local law enforcement agencies.
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There are some instances where the FBI feels confident that a name and date of birth check within their data base would yield the information on the criminal background check.
We are simply making the point that we ought to be able to rely on the FBI's expertise in those circumstances to permit them to make that check just based on the information other than the fingerprint that we have provided.
Mr. PEASE. So, if I understand what you are saying, the FBI has suggested that they do not need fingerprints in order to get the information we would require?
Mr. VIRTUE. No. We are simply suggesting that if we limit the FBI to the fingerprint in the statute, that we are taking away the opportunity that they have found, in some cases, that they would have to do a complete criminal background check based on information other than the fingerprint itself.
I mean we are really relying on the expertise of the FBI there because they are the ones who classify the prints.
Mr. PEASE. Mr. Angus looks like he was wanting to say something or may he was just supporting what you had said. If you had something you wanted to add, I want to hear it.
Mr. ANGUS. No, I did not.
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Mr. PEASE. So, what would you recommend in this specific case in this part of the proposed bill on that subject?
Mr. VIRTUE. That the language would say something to the effect of the information supplied by INS, including but not limited to fingerprints, or some language that would not tie the FBI down to having to wait on fingerprints that may never actually materialize.
We are getting a little bit, certainly beyond my expertise. It is really an FBI issue in terms of classification of prints and how they do that.
Mr. PEASE. All right, thank you.
The second area dealt with the proposal to require reporting of a lost green card, and how that interacts with the relinquishing of that card upon naturalization, and the fees that are charged for each, or the current fee charged and the proposed fee charged.
I understood your testimony to be that you believe that setting forth a fee for a lost card actually then would reduce the incentive for the N400 filing fee because the fee for the lost card would be cheaper than that.
You could just say, oh, I lost my card, pay a cheaper fee, and still accomplish the same thing. Do I read that correctly?
Mr. VIRTUE. I think it just may be a question of how the language is written there. There is a fine basically provided in the statute. The question is whether that and the replacement fee would both be required in order to get a new card.
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I think it may just be a question of the language on that specific issue. Our concern is that it would be largely unenforceable for us because it would be very difficult for us to show the date on which a person lost their card, and whether that person had submitted the reporting within, I think it is, seven or 10 days, whatever the statutory period would be.
It would be a very difficult case to make in order to impose the fine.
Mr. PEASE. I am still in the middle of my question, and the light has gone red, or I can wait until the next round.
Mr. SMITH. Look out. That is what Mr. Watt is going to claim too.
Mr. PEASE. I will follow it up the next round.
Mr. WATT. I am fine. I was not being hard to get along with.
Mr. SMITH. Go on, Mr. Pease.
Mr. WATT. Even if you were.
Mr. PEASE. The question is, would you acknowledge that there is a problem, that there is a market for these cards, and that something needs to be done to try and get a handle on that issue, which is what I understand is the reason for this proposal?
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Mr. VIRTUE. There are actually two proposals in the bill. One would provide for a $50 fine for someone who does not timely report the loss of the I-551, the green card.
There is another provision that would require either that the person relinquish the card or complete an affidavit that they have lost the card at the time of naturalization.
We think that the latter will certainly be helpful in terms of addressing the problem of lost cards in the naturalization process.
Mr. PEASE. I do not want to put words in your mouth. Would it be fair to say that the concept of dealing with the issue of there, in effect, being an illegal market for the cards is worth addressing, though you may have some problems with some of the mechanics with the way it is proposed?
Mr. VIRTUE. Yes.
Mr. PEASE. Thank you very much.
Thank you, Mr. Chairman.
Mr. SMITH. Thank you, Mr. Pease.
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Mr. Angus, on the way to Mr. Berman, I think that Mr. Watt and I would both appreciate getting from you the projected waits in various locations, and if they are in fact diminishing, then that is good news. Based upon the new processes, we would be interested in knowing, I think, how much those waits are being diminished. Thank you.
Mr. Berman, the Gentleman from California, is recognized.
Mr. BERMAN. Thank you, Mr. Chairman.
Hearing the discussion between Mr. Pease and Mr. Virtue, I was struck by the notion of how the very logical desire to deal with the problem of people who are not turning in their green card at the time that they are naturalized, or who are claiming to have lost their green card at the time they are naturalized in order to permit a counterfeiting or false documents kind of a process.
That noble intention can translate sometimes into some ridiculous results. My guess is if you pass a statute that says if you do not report your green card within 30 days after the time you lost it, you will have to pay $50.
If you do not, you will not find anyone who claimed that they lost their green card more than 30 days before the time that they reported it; not to mention the metaphysical question that I face all of the time of, have I lost it or do I just do not know where I put it?
I would like to focus on the issue that was raised by the Gentleman from North Carolina in his opening comments on the question of the resources. I gather there are two parts to this really intolerable backlog that we face.
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One is this question of how long does it take the FBI, given the fingerprints and the other information, to do what they have to do? We have to deal with that.
The second issue is what you said just in passing in your answer to Mr. Watt. The search to match the application with the legal immigrant's ''A'' file, if that is what we call it, and put those two things together frequently seems to take a great deal of time.
There is a great demand on clerical staff and a great deal of time. Sometimes matching my phone call to the Congressional Office of INS with the search for the ''A'' file is a considerable one.
What do we do about addressing with you folks that part of the problem? What resources do you need as a part of making this a bill that both sets standards that we expect INS to follow so that we are ensuring that we are not naturalizing anyone who should not be naturalized and gets rid of these intolerable delays so that people who are entitled, who have waited their 5 years, met all of the legal requirements, want to become U.S. citizens, can become U.S. citizens as soon as possible after the application is filed? What do you need? What could this bill do? What could the Congress do to help you address that problem?
Mr. ANGUS. I certainly think records centralization would be one feature of any answer.
Mr. BERMAN. Is that something you need Congress to do or could you do that administratively? It sounds like micro-management.
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Mr. ANGUS. You could do it administratively, but you need the funds to do it.
Mr. BERMAN. Okay.
Mr. ANGUS. Records centralization with an agency this size as its records are spread out is a formidable task.
Mr. BERMAN. What are we talking about fiscally; just off the top of your head?
Mr. ANGUS. About $15 million.
Mr. BERMAN. That is nothing in our business. Okay, go on.
Mr. ANGUS. But clearly——
Mr. BERMAN. You mean records centralization?
Mr. ANGUS. Records centralization.
Mr. BERMAN. You mean in one place in the country or in one place in a region? What do you mean?
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Mr. ANGUS. It could be either. It could be one place in the country. It could be centralized locations, but certainly better than the number of locations that an ''A'' file may be located in this agency at the present time.
Mr. BERMAN. Once we directed you to and funded you to achieve that centralization, how long would it take to achieve?
Mr. ANGUS. That would strike me as an assignment that would be in the 6-month to 9-month area; getting all of the files in one location.
We have proven from other transfer of records within the last year, even in connection with our service centers, that we do have the capability to move massive amounts of files in short periods of time to centralized locations.
Mr. WATT. Would the gentleman yield for just a second?
Mr. BERMAN. Sure.
Mr. WATT. I am just interested whether the centralization you are talking about is in the form of some computer centralization. You are not talking about taking all of these paper files and transferring them into archives in Washington, D.C.; are you? What is the process?
Mr. BERMAN. More likely West Virginia.
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Mr. WATT. West Virginia or wherever. Maybe Senator Lott's District now. Is there not some process to get these things all computerized?
Mr. ANGUS. The irreducible bottom line for us on the ''A'' file is that when the adjudicator conducts the interview of the applicant, it is the ''A'' file that has the information that allows them to make the most intelligible assessment of the person's qualification for naturalization.
How we get that ''A'' file, it is a part of our quality assurance procedures. It is a part of our putting in three separate requests for that file before we will move forward to an interview.
It is a requirement that a supervisor at a district office review any case that is adjudicated on a temporary file without the ''A'' file present. Having the ''A'' file is a huge issue for us.
There may be ways to work with a computer system versus where the records go. At the end of all of that, the paper file, under our present system, needs to be in the hands of the adjudicator.
Mr. VIRTUE Mr. Chairman, if I just might, we are pursuing records centralization in one location. We have at least some start-up funding to do that. It is really a two-step process.
One is centralizing the actual hard copy files. They would be returned to offices on demand. Then step two of that is really automating the whole process so that a file would be an automated record and available to our people.
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Mr. WATT. What is a good time frame and money demands of the second part of that? He was talking about just centralizing the hard copies for $15 million and nine to 10 months. What is the second part of that?
Mr. ANGUS. I would really have to supply that back to you. We would be happy to do that because we do have plans that project that out.
[The information referred to follows:]
BREAKOUT OF THE LIFE CYCLE RECORDS CENTER PROJECT COSTS (RAPID)
This project needs to be looked at as a national repair of the Records Program. Although the bulk of the funding supports the centralized activities, much of it is invested in revamping existing records automation support, replacing the current 2-tier records tracking system (must use both RAFACS and CIS to move records around the Service), linking field offices at the Center with enhanced records workstations incorporating interactive video, imaging/FAX, front end ''browser'' technology, and other features to better support Benefits and Enforcement activities on a 24 hour by 7 day a week basis.
Breaking down the 134 million over the 5 years of the implementation, it is important to understand that there are 3 major pieces that are funded, but that support different objectives under the Record improvement umbrella; improvement in the national service-wide records support infrastructure, centralizing and consolidating our paper holdings, improving the data integrity of the electronic databases associated with those paper files.
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If we were only to centralize and therefore better account for our current paper based records operations, the yearly operating cost for the Center would be only 16 million dollars. This investment would allow us to account for and control our records and provide better service to our customers. It would also result in cost savings by freeing up records room leased space in our Districts where it could be put to better use. Keep in mind that most of this field office space is in high cost urban locations.
Doing the data reconciliation and making major improvements in the integrity of our electronic data in Central Index is a second effort which is a significant cost in the overall budget. It is this effort, however, that has the large payoff in INS's mandate to support the federal, state and local benefit granting agencies with accurate immigration status information. This supports Welfare Reform and the Employment Verification Pilots, by taking unauthorized applicants for benefits, and unauthorized workers off the rolls. This effort alone is labor intensive. Contract dollars required are over 50 million of the total cost. Once this is accomplished, the Centralized records operations will ensure maintenance of the improved data.
Investments within the overall budget that will extend to the national infrastructure include systems upgrades, equipment purchases, training, redeveloping standard operating procedures and implementing accountability and quality assurance and other like efforts. The portion of the overall budget dedicated to this initiative is approximately 9 million.
We worked hard to fund the project budget with a combination of base resources and enhancements over several years. The life cycle cost includes reallocation of base IRM and Information and Records resources in the amount of 25 million dollars and an additional offset because we will re-deploy contractor resources supporting field records locations to the new central facility in the amount of 27 million dollars.
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The out-year costs to operate after the implementation is complete and the data improvements have been made (the 5 year plan), will be reduced to less than 20 million dollars.
Finally, it is important to note that we have included a centralized Immigration Status Verification operation (including staff) to support the Welfare Reform and expanded Employer Verification Pilots, a centralized Freedom of Information (FOIA/PA) operations staff, and a 24 hour by 7 days a week operations support unit available to the INS enforcement community to provide records and information support to the field for emergencies.
Mr. BERMAN. Mr. Chairman, my time has expired. Could I just ask that the INS——
Mr. SMITH. I think you are asking, but yes, you may.
Mr. BERMAN. Not for them to answer now. If they could just submit to the subcommittee, with copies to its members, a letter from INS on just what affirmative steps need to be taken in terms of both authority and funding to smash this backlog down to 6 months?
Let us use that as the standard for a moment between application and approval for swearing in.
[The information referred to follows:]
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58800a.eps
58800b.eps
58800c.eps
58800d.eps
58800e.eps
58800f.eps
58800g.eps
58800h.eps
58800i.eps
58800j.eps
58800k.eps
Mr. SMITH. The Gentleman from Tennessee, Mr. Bryant is recognized. If the Gentleman will yield to me just for a minute?
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Mr. BRYANT. I will be delighted to do that.
Mr. SMITH. Thank you, Mr. Bryant.
It is my understanding that in the last Commerce, Justice, State Appropriations Act that an additional $11 million was given to the INS to improve records infrastructure; almost $5 million to support records contracts in district offices; $5 million to modify the Claims computer system; and more than $1 million to enhance the Central Index System.
Mr. BRYANT. Was that on the naturalization side?
Mr. SMITH. Would you like to respond regarding the additional funds?
Mr. ANGUS. Chairman Smith, I am generally familiar with that. In the 2 days I have been acting in this position, my background was not on the budget side.
Mr. SMITH. Okay. That is many millions of dollars that I hope will accomplish some of what you have been talking about.
Mr. ANGUS. Just in partial response to that.
Mr. SMITH. Yes, Mr. Virtue.
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Mr. ANGUS. Most of the funds that were appropriated for improvement of the Claims system are going in fact to naturalization. The next component to come on-line of Claims is the naturalization component, which would be deployed based on that funding.
Mr. SMITH. As I understand it, these appropriations, which I think total more than $20 million, were at the request of the INS. The appropriations subcommittee was trying to help you all achieve your goals. So, I think we are on the way to doing a lot of what we all want to accomplish.
Thank you Mr. Bryant. I will yield back.
Mr. BRYANT. Thank you, Mr. Chairman.
Gentlemen, let me add my welcome today. I am reading some information that was prepared for us, which I assume was taken in large part from the Pete Marwick audit.
We have been through this before when we initially complained about this Citizenship U.S.A. Program issue. I want to recite some numbers here.
During this time period preceding the election in 1996, that year from September 1995 to September 1996, the INS was granting citizenship at the rate of 5 times as fast as it had done in the prior 5 years.
Of course, as we know, and as the chairman has pointed out, all of the exchanges between the Vice President, the Administration, and the INS to pursue this. You can imagine that some of us in Washington have suspicions about why this was done. Because of that, this rapid acceleration of this process, we see it was almost a complete breakdown of the legal and procedural safeguards which were supposed to be enforced.
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According to this sample audit by Pete Marwick over this universe of 1,050,000 naturalization cases, over 90-percent, nine out of ten, the application files were incomplete or incorrect in some way.
Admittedly, some of these may have been stapled the wrong way. I am sure that is a part of it. The biggest problem was apparently the lack of a proper criminal background check.
The sample audit found about 40,000 cases where it was clear that citizenship should not have been granted, including a minimum of 11,500 cases where the criminal records were the basis of disqualification.
About 920,000 files were in such poor condition that it was impossible to tell if citizenship was proper. Actually in the end, only about 90,000 cases existed where the file was complete and the grant of citizenship appeared to be correct.
As a result, the INS is currently attempting to revoke citizenship of about 6,300 people. Are we not in a situation where we are still trying to recover from that disastrous effort prior to the 1996 election where we are trying to go back?
I mean, has this not set us back? Are we not still trying to recover and determine who should have come in and who should not have come in? Was this not a mistake? I realize it was not necessarily your mistake, but it was a mistake somewhere.
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Mr. VIRTUE. Pressure at the time was to reduce an intolerable backlog in terms of naturalization and to bring the naturalization process down within reasonable time limits. Six months was set out as the target for those time limits.
I think we continue, as the questions would indicate here today, to have concerns about backlogs in processing cases. The difference that we are in today versus 1996 is that we have a clear set of quality assurance procedures that guide our people in the field in adjudicating these cases.
We did not, quite honestly, have that in place in 1996. So, we believe we are certainly better postured to address that issue today. The concern about backlogs today is no less than it was in 1995 and 1996.
We think that the efforts we are making are to address both the integrity, as I have said, quality decisions in a timely manner, and also efficiency.
Mr. BRYANT. That was a quick 5 minutes.
Mr. SMITH. Thank you, Mr. Bryant.
We thank the witnesses from the Administration for being here and appreciate your comments. We asked you to follow up on a number of items. We hope that you will do so and get back to us as quickly as possible.
Thank you, Mr. Virtue. Thank you, Mr. Angus.
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Our second panel consists of Mr. Richard Estrada, Dallas Morning News, former member of the U.S. Commission on Immigration Reform; Mr. Robert Hill, Venable, Baetjer, Howard, and Civiletti, former member of the U.S. Commission on Immigration Reform; and Mr. Michael Teitelbaum, Alfred P. Sloan Foundation, former member of the U.S. Commission on Immigration Reform.
Mr. WATT. Mr. Chairman, can I make a unanimous consent request while the folks are getting situated?
Mr. SMITH. Yes.
Mr. WATT. That we keep the record open for this hearing for an additional 2-week period so that other folks who have expressed an interest may submit their views for the record.
Mr. SMITH. Without objection, the record will remain open for 2 weeks for additional views to be submitted.
Mr. WATT. I have in my hand two views that I would like unanimous consent to put in the record. One is the testimony of the National Asian Pacific American Legal Consortium.
The other is the testimony of the Mexican American Legal Defense and Educational Fund. I would like to submit those for the record.
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Mr. SMITH. Without objection, it is so ordered.
[The prepared statements referred to follows:]
PREPARED STATEMENT OF THE NATIONAL ASIAN PACIFIC AMERICAN LEGAL CONSORTIUM
The National Asian Pacific American Legal Consortium (Consortium) is a nonprofit organization whose mission is to advance and protect the legal and civil rights of the 10.4 million Asian Pacific Americans across the country. Immigration and naturalization policy is particularly important to the Consortium because of the large number of recent immigrants in the Asian Pacific American community and the long history of racially discriminatory treatment of Asians and Pacific Islanders by our country's immigration and naturalization laws. Persons from Asia were restricted from immigrating to the U.S. until 1965 and those here were prohibited from becoming naturalized American citizens until 1952.
The Consortium and its affiliates, the Asian American Legal Defense and Education Fund in New York, the Asian Law Caucus in San Francisco and the Asian Pacific American Legal Center of Southern California, collectively have over a half a century of experience in providing direct legal services, community education and advocacy on immigration and naturalization laws and other immigrant issues.
The Consortium believes that it is important that Congress not make the naturalization process more difficult than it already is. Instead, Congress should provide the Immigration and Naturalization Service (INS) with increased appropriations to ensure that greater efficiency is achieved, while maintaining the integrity of the process. INS has made significant improvements over the past several months.
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I. HISTORY OF DISCRIMINATORY IMMIGRATION AND NATURALIZATION LAWS
American immigration law has been fraught with racial bias. The Chinese Exclusion Act of 1882 prohibited the immigration of Chinese laborers. This law epitomizes this country's shameful record on immigration from Asia.(see footnote 1) In 1907, anti-Asian sentiment culminated in the Gentleman's Agreement which limited Japanese immigration.(see footnote 2) Asian immigration was further restricted by the Immigration Act of 1917 which banned immigration from almost all countries in the Asia-Pacific region;(see footnote 3) The Quota Law of 1921 which limited the annual immigration of a given nationality to three percent of the number of such persons residing in the U.S. as of 1910;(see footnote 4) and the National Origins Act of 1924 which banned immigration of persons who were ineligible for citizenship.(see footnote 5) A decade later, the Tydings-McDuffie Act of 1934 placed a quota of 50 Filipino immigrants per year.
It has been just one generation since the Chinese Exclusion Act and its progeny were repealed in 1943.(see footnote 6) Even after the repeal, discriminatory quotas were set using formulas giving special preference to immigration from Europe. Until 1965, for example, the German annual quota was almost 26,000 and the Irish almost 18,000 while the annual quota from China was 105, for Japan was 185, the Philippines was 100 and the Pacific Islands was 100.(see footnote 7)
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The intensity of the discrimination against immigrants from Asia is reflected in laws that prohibited them from becoming naturalized citizens for over 160 years. A 1790 law allowed only ''free white persons'' to come citizens. Even after the law was changed to include African Americans, similar legislation to include Asian immigrants was rejected.(see footnote 8) The Supreme Court upheld the laws making Asian immigrants ineligible for citizenship.(see footnote 9) The last of these laws was not repealed until 1952.(see footnote 10)
Congress finally acknowledged the immorality of the racial bias imbedded in the immigration system with the passage of the Immigration and Naturalization Act of 1965, but did not redress the effect of earlier biases. In fact, the 20,000 per country limit, imposed without any consideration of size of originating country, demand or immigration history, resulted in extremely long waiting lists for Asian immigrants.(see footnote 11)
As a result, although Asians have constituted approximately 30–40% of this country's immigration for the past two decades, the community still constitutes less than 4% of the U.S. population and well over 1.5 million Asian immigrants are still waiting in backlogs for entry visas to reunite with their families.
II. PROPOSED CHANGES TO THE NATURALIZATION PROCESS
The Naturalization Reform Act of 1998 will do little to improve the integrity of the naturalization process, but will instead make the process even less efficient and more difficult. It is unnecessary given recent changes INS has made to improve the integrity of the process, as documented by the KPMG Peat Marwick audit. It will saddle an already overwhelmed agency with even more bureaucracy. Sadly, the Naturalization Reform Act ignores the millions of eligible and qualified immigrants who have decided to adopt this nation, applied for citizenship and have now waited for nearly two years for their application to be processed.
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The Naturalization Reform Act is inconsistent with our nation's founding principle of welcoming newcomers. Rather than assist qualified immigrants in the naturalization process, this bill seeks to build additional barriers for those who want to make a commitment to the U.S. as full-fledged citizens.
First, this bill extends the good moral character review period from 5 years to 10 years, making this requirement inconsistent with the residency requirement and, in some cases, have the INS investigate an applicant's records in the country from which he emigrated. This is particularly problematic for immigrants and refugees from nations that have oppressive, non-democratic regimes and where arrests were often unjustified or done for political purposes. Moreover, many of these countries may not be willing to cooperate with the INS or may even falsify responses in order to punish dissidents who fled from their repressive regimes. For asylees and refugees as well as other immigrants in such situations, the Naturalization Reform Act would likely pose a significant barrier, requiring de facto 10 year residency for citizenship.
The INS has instituted a stringent processing system, particularly for criminal review, with high quality control and thorough oversight. KPMG Peat Marwick has confirmed these improvements under a zero tolerance evaluation standard. The proposed change is unnecessary, potentially faulty because of its reliance on foreign governments, and unfair to immigrants who have already been waiting up to two years and would have to redocument their applications.
Second, the Naturalization Reform Act will eviscerate the due process from revocation of naturalization, also known as denaturalization. It presumes that any inconsistencies in the citizenship application are willful and material, and therefore sufficient ground for revocation. An applicant would have to overcome this presumption to prove that they are not ''guilty.'' The bill will also allow the INS to conduct denaturalization proceedings 5 years after an individual's swearing-in ceremony, rather than the current 2 years statute of limitation. This is contrary to our Constitution and our American principles of due process and the presumption of innocence until proven guilty. Congress rightly considered such assumptions to be unacceptable by the Internal Revenue Service (IRS) in tax proceedings and they are no more acceptable in the context of citizenship.
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Since the INS has improved the integrity of its process and is already applying such, the revocation provision contributes nothing to improving the naturalization process. In fact, Naturalization Reform Act will become even more expensive and intimidating. Individuals may be forced to pay legal counsel to help ensure there are no misunderstandings of the sometimes very technical questions or face forever being barred from becoming a citizen because of a mistake or misunderstanding.
The Naturalization Reform Act is unnecessary and flawed in other ways. The Act would go so far as to prohibit an immigrant who filed a late INS change of address notification from ever becoming a U.S. citizen. This is a penalty that is excessive and unfair. Why would Congress want to prevent an immigrant from making a commitment to citizenship on this basis?
This bill would remove discretion from the INS, in a way similar to the judicial review stripping provisions of Illegal Immigration Reform and Immigrant Responsibility Act. It is as if the immigrant is on trial before a judge, but that judge has no discretion, a key element in an adjudicative process. Naturalization is a service and should not be confused with the enforcement functions of the INS. The proposed Naturalization Reform Act would create such an environment. Finally, the Naturalization Reform Act would increase the backlog, which already averages about 2 years, without decreasing fraud and errors.
III. CONCLUSION
Subcommittee Chairman Smith has said that we need to focus on the national interest. But that national interest is not in conflict with the system of naturalization that we have today. It is very much in the national interest to fully integrate immigrants in our American community. The best way to do this is to encourage eligible immigrants to become U.S. citizens through a naturalization process that is fair and efficient.
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PREPARED STATEMENT OF THE MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND
INTRODUCTION
The Mexican American Legal Defense and Educational Fund (MALDEF) appreciates the opportunity to submit testimony regarding a proposal to create barriers for legal immigrants to become citizens. MALDEF is a national nonprofit organization dedicated to protecting and promoting the rights of Latinos in the areas of education, employment, political access, immigration, and language rights.
MALDEF opposes H.R. 2837, a bill introduced by Congressman Lamar Smith of Texas. The bill is named the ''Naturalization Reform Act of 1998.'' Such a title implies that the bill fixes the naturalization process but it does no such thing. In fact, it makes the process much worse.
The bill, if passed, would strip legal immigrants of existing due process rights by requiring Immigration and Naturalization Service (INS) employees to make determinations previously reserved for immigration judges that will be determinative as to whether certain immigrants are barred from naturalizing. The bill would force the Attorney General to conduct inquiries that are not necessary in determining good moral character and remove her discretion to consider the totality of the circumstances for long-term permanent residents by extending the good moral character period to a mandatory ten years. H.R. 2837 would force the United States to recognize criminal legal systems from every country around the world, even those known for political persecution, when determining the moral character of legal immigrants who have been in the United States for less than ten years.
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Changes in interviewing procedures that would be required under H.R. 2837 and new, unnecessary responsibilities for green card holders would only serve to delay the transition for an immigrant to becoming a full member of our society. The new administrative revocation standards that would be created by H.R. 2837 would not only strip naturalized citizens of due process rights, it would create a class of second-class citizens who would live in fear for five years after naturalizing that their citizenship could easily be taken away at any moment. Finally, the bill's complete failure to address the issue of the backlog of naturalization applicants indicates that proponents of the bill are not really interested in reforming naturalization but rather creating new barriers for legal immigrants to become citizens.
ANALYSIS OF H.R. 2837
Bar To Naturalization For Persons Who Are ''Deportable'' Would Strip Immigrants Of Existing Due Process Rights
Under current law, an applicant with a final finding of deportability or a pending deportation proceeding cannot be naturalized.(see footnote 12) The law also prevents an applicant from naturalizing if the applicant previously was ordered removed or if the applicant departed while an order of removal was outstanding against him or her.(see footnote 13) Section 2 of H.R. 2837 adds a prohibition from naturalizing if the applicant is ''deportable'' under certain provisions of the law.(see footnote 14)
The bill would move the law away from prohibiting naturalization to applicants who have had a final finding of deportability in front of an immigration judge or will have such a finding in the course of a deportation proceeding.(see footnote 15) Instead, the bill prohibits naturalization to applicants who an INS adjudicator determines is ''deportable.'' Under the current system, an applicant would only be denied naturalization in the context of deportability if he or she is guaranteed certain protections through removal proceedings such as the right to notice, the opportunity to secure counsel, the opportunity to examine evidence against the immigrant, and the opportunity to present evidence and to cross-examine witnesses presented by the Government.(see footnote 16) H.R. 2837 leaves out all of these protections so that innocent persons likely will be denied the opportunity to naturalize because they were not given the opportunity to present their case in a fair hearing.
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Furthermore, many offenses that H.R. 2837 includes within its ''deportable'' definition would already bar an applicant from naturalization through existing legislation. Some of the offenses in the bill would be automatic bars and others would certainly be within the category within which the INS could use its discretion to bar under current law.(see footnote 17) H.R. 2837 would not significantly contribute to adding new offenses to the offenses which INS already considers in determining good moral character, except to add unusual offenses such as failure to file a change of address card.(see footnote 18) What H.R. 2837 would do is remove INS' discretion and strip away the already limited due process rights of immigrants.
Extending Good Moral Character Period Is Unnecessary, Will Increase The Backlog, And Will Take Away Attorney General Discretion Where It Is Needed
Under the Immigration and Nationality Act (INA), an applicant for naturalization must reside continuously in the United States as a permanent resident for five years.(see footnote 19) The INA also requires that a naturalization applicant be a person of ''good moral character.''(see footnote 20) Section 3 of H.R. 2837 would not change the length of residency but would extend the mandatory time to determine good moral character to ten years.(see footnote 21) Since 1795, the length of mandatory inquiry to determine good moral character has been tied to the length of required residency; and since 1802 that length of residency has been five years. While a 200-year history is not a good enough reason alone to keep a law, it is a good reason to inquire about the need for change.
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Taking a look at the current law and how it is implemented, there is no justification for raising the mandatory good moral character inquiry from five to ten years. It will be argued that such a requirement will improve the integrity of the process but it will not. What the requirement will do is lengthen the time it takes to process naturalization applicants and take away the Attorney General's discretion where it is wise to keep her discretion.
Extension of the good moral character period is unnecessary. Although the INS has had questions of integrity raised of its naturalization process from 1995 to 1996, the problems were completely unrelated to the length of the good moral character inquiry. Instead, the problems were due to INS' failure to conduct a criminal background check on some naturalization applicants. The INS has addressed certain integrity issues in the naturalization process, such as correcting its processing of fingerprints.
Also, under current law, the INS is not limited to determining good moral character by looking only at the last five years of an applicant's residency.(see footnote 22) In fact, the law already provides that certain acts are mandatory bars to citizenship even if the acts were committed prior to the five year period preceding an application for citizenship.(see footnote 23) H.R. 2837 does not add qualitatively to the inquiry which the INS already conducts regarding an applicant's good moral character.
the Attorney General shall not be limited to the applicant's conduct during the five years preceding the filing of the application, but may take into consideration as a basis for such determination the applicant's conduct and acts at any time prior to that period.
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8 U.S.C.A. §1427(e) (West Supp. 1998); see also 8 C.F.R. §316.10(a)(2) (1998) (setting forth same standard).
Instead, H.R. 2837 will increase time to process naturalization applications. As of November 30, 1997, the INS had a backlog of close to 1.75 million naturalization applications. In some parts of the country, applicants for naturalization already must wait well over two years to be processed by the INS. The additional mandatory inquiries that will be required under H.R. 2837 will certainly increase the time for processing. Although the INA provides for citizenship after five years of residency, the requirements under H.R. 2837 added to the current wait will result in a de facto residency requirement of at least eight to ten years.
Under current law, the Attorney General has the discretion to consider acts prior to the five years in determining good moral character but under H.R. 2837 she will be required to bar certain applicants for citizenship who are deserving of the honor by community standards. H.R. 2837 will take away the Attorney General's discretion to consider whether the applicant has reformed during the last five or more years and positive contributions that an applicant has made when determining if the person is of good moral character. Long-term permanent residents who committed a minor offense many years ago and have not had any trouble with the law since that time may be denied the opportunity to naturalize if this bill passes.
Extending Good Moral Character Period Will Force The United States To Recognize Other Countries' Laws
Although H.R. 2837 would not make a statutory change to the residency requirement, it would have the effect of making a de facto change to the residency requirement from five years to ten years for many applicants who have resided in the United States for less than ten years. These applicants would need to prove that they have clean criminal records from their native countries in which they have not resided for at least five years.(see footnote 24) Such records will be very difficult if not impossible for the applicants to obtain. Applicants would instead be forced to wait until they have resided in the United States for at least ten years to meet the good moral character standard. The bill would create an unduly burdensome requirement and exacerbate the bureaucratic record-keeping already contributing to the overall backlog.
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Furthermore, H.R. 2837 would force the United States to recognize and legitimize legal systems from all other countries. The INS would be required to investigate arrests and convictions from other legal systems that often do not provide the same protections as the United States. By requiring the INS to investigate arrests and convictions which occurred in other countries, Congress would be recognizing criminal laws and judicial systems from around the world, many of which we have criticized for not providing a fair system. Most notably, many applicants for naturalization are political refugees who may have been arrested for expressing their political opinion or exercising their religious beliefs. This bill would require our government to call a naturalization applicant's moral character into question for acts that would be protected here in the United States.
Changes To The Interview For Adjustment Of Status And The Naturalization Interview Would Not Strengthen The Integrity Of The Process But Would Slow The Process Down
Section 5 of H.R. 2837 would require that every immigrant who wants to adjust to lawful permanent resident status be interviewed by the INS.(see footnote 25) Section 6 of the bill would impose certain requirements that the INS must follow when conducting the naturalization interview.(see footnote 26) Each of these provisions would slow the process down for immigrants who want to be and are deserving of being full members of this society—citizens.
With regard to the bill's requirement to interview in all adjustment cases, it is odd that it appears in this bill at all since it is not part of the naturalization process; but, as part of a greater scheme to slow the transition down from immigrant to citizen, it is not surprising at all that the provision found its way into the bill. The INS issued internal guidance during the Bush Administration which allows INS District Directors to waive interviews in some adjustment cases but the determination is made on a case-by-case basis. Following this guidance, the INS only waives interviews for those applications that are supported with documentation that have proven to have low denial rates and low instances of fraud. The waiver of interviews for these low-risk applicants allows the INS to spend more resources investigating and interviewing those persons more likely to commit fraud. Furthermore, the INS or the Department of State have interviewed already the overwhelming majority of all adjustment applicants at an earlier time.
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H.R. 2837 would not add to the detection of fraud in adjustment cases but may actually deter the INS from spending the added resources on cases that are more likely to be fraudulent and, therefore, the INS will be less likely to detect fraud. In addition, the mandatory interview for all adjustment applicants will assuredly add more time for applicants to wait to adjust their status to lawful permanent residents.
Section 6 of H.R. 2837 only serves to increase the time the INS must spend with each applicant and does not further serve the determination of an applicant's eligibility. For example, this section requires the INS to ''verify each statement or representation made by the applicant in the written application for naturalization, and in any documents submitted in support of the application . . .''(see footnote 27) It appears on its face that this would require the INS examiner to go over every single blank an applicant has filled out and ask the applicant if the statement is true, whether it be on the application form itself or a tax form or a marriage certificate or any other documents even though the examiner may not have any reason to suspect that the applicant is lying.
Changes To Naturalization Testing Are Unnecessary
Section 7 of H.R. 2837 is unnecessary since the INS announced yesterday that it is adopting new procedures in testing, effective August 30, 1998, that will address issues of integrity.
The Civil Penalty And Affidavit Requirements For A Lost, Stolen Or Destroyed Resident Alien Card Are Unfair, Unnecessary, And Will Add Time To Naturalization Processing
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Section 8 of H.R. 2837 would institute a civil penalty of $50 if an immigrant fails to report a lost, stolen, or destroyed resident alien card, or ''green card'' as it is commonly referred to, within seven days of discovering such loss, theft, or destruction.(see footnote 28) In addition, the section would require an affidavit explaining the circumstances surrounding the missing card and a thirty-day minimum wait before naturalizing during which the Attorney General may conduct an investigation regarding the missing card.(see footnote 29)
Such a fine is fundamentally unfair and unnecessary. If a person loses his or her driver's license or passport either through his or her own fault or someone else's fault, there may be a fee to obtain a new one but we certainly would not expect to have to pay a fine on top of that. Seven days in which to report the missing card in order to avoid the fine is unreasonable, particularly in light of the fact that the provision would apply to all green cards no matter how long ago they were issued. Many green card holders would never even have effective notice of this new requirement. Furthermore, this provision fails to improve the naturalization process but succeeds in harassing immigrants.
Section 8's affidavit and mandatory minimum waiting time requirement before naturalizing requires more bureaucracy and time than is necessary to accomplish the same result. The INS could simply add a question to the naturalization application form in which an applicant could indicate that his or her green card is lost, stolen or destroyed. Because the INS takes so long to process applications, it would have plenty of time to investigate any circumstances surrounding the missing card without delaying the applicant more than is necessary. If the applicant misplaces his or her green card or has it stolen or destroyed between the time of application and the applicant's swearing-in, the INS could provide opportunities for the applicant to provide any necessary information to the INS without requiring a formal affidavit and additional waiting times before naturalizing.
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The New Administrative Revocation Standard And Statute Of Limitations Would Strip New Naturalized Citizens, Of Due Process Rights And Make Them Second-Class Citizens
Assuming that a naturalization applicant could actually make his or her way past the landmines and the delays caused by H.R. 2837, the bill would ensure that newly naturalized persons would only be second-class citizens until an additional five years passes after they take their naturalization oath. Section 9 of the bill would make it easier for the INS to administratively revoke citizenship and would extend the statute of limitations within which the INS can use an administrative process to strip away citizenship to five years.(see footnote 30)
Currently, the law provides that naturalization can be revoked in a proceeding brought in federal district court where the naturalization was ''illegally procured or w[as] procured by concealment of a material fact or by willful misrepresentation.''(see footnote 31) The INS has interpreted the law to allow it to revoke naturalization where it naturalized someone in error. Such authority may arise from a provision which allows the Attorney General to ''correct, reopen, alter, modify, or vacate an order naturalizing a person.''(see footnote 32) Assuming that the INS has the authority to administratively revoke citizenship, it must still abide by the standard requiring that the revocation may only occur where the naturalization was obtained illegally or by concealment of a material fact or willful misrepresentation.
Current case law interpreting the revocation statute provides that a ''material fact'' is one in which the fact, had it been known at the time the naturalization was granted, would have resulted either in denial of citizenship or an investigation that would have led to denial of citizenship.(see footnote 33) H.R. 2837 would change the definition of ''material fact'' so that, in effect, a ''material fact'' need not be ''material'' at all. Section 9 of the bill states that a fact may not be considered ''immaterial solely because the fact . . . would not, by itself, have required the Attorney General to deny the person's application for naturalization.''(see footnote 34) While the case law does allow some leeway, it is clear that if the fact would not itself have led to denial it would have to have led to an investigation that led to denial. H.R. 2837 would change that interpretation.
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H.R. 2837 also would allow the INS to use proof that an immigrant concealed or misrepresented a material fact (which does not really have to be material) as prima facie evidence that the immigrant acted willfully in concealing or misrepresenting the fact, which could lead directly to revocation of citizenship in the absence of contrary evidence.(see footnote 35) The case law now requires that the INS prove by ''clear and convincing'' evidence that an applicant concealed or misrepresented testimony with an intent to obtain naturalization. H.R. 2837 would reverse the burden of proof by allowing the INS to presume intent where there is no evidence of it.
Finally, within the context of revocations, H.R. 2837 would permit the Attorney General to administratively revoke a naturalization order for up to five years.(see footnote 36) The Attorney General currently interprets her statute of limitations to be two years; therefore this provision would extend the availability of the procedure for an additional three years. If, in fact, an applicant obtained his/her naturalization through fraud, the naturalization order could be revoked through judicial proceedings at any time since there is no statute of limitations on the judicial procedure. To allow the INS to hold over every naturalized citizen's head the threat of an administrative revocation process that provides much less due process protections than a judicial procedure sends the message loud and clear that naturalized citizens are second-class citizens for at least five years after they become naturalized.
The Complete Failure To Address The Issue Of The Naturalization Backlog Demonstrates This Bill Is About Stopping the Naturalization Process
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What this bill does not touch at all is the real tragedy of the current naturalization process. Currently, approximately 1.75 million permanent residents have filled out an application, paid a fee, and have not received the service of having their application to naturalize processed. In some parts of the country, the wait to become a citizen exceeds two years. This is despite the fact that statutorily, a permanent resident is entitled to become a naturalized citizen after five years of residency if he or she meets certain other conditions.(see footnote 37) It would seem self-evident that any legislation called the ''Naturalization Reform Act of 1998'' would have to deal with reducing the backlog but H.R. 2837 does not even mention the need for reform in this area at all, sending a clear signal that what it really is about is stopping the process, not making it work.
Mr. SMITH. Thank you, Mr. Watt.
We will proceed to the panelist. We will start with Mr. Richard Estrada. Mr. Estrada, let me thank you for coming the farthest of any witness today, and in addition, coming at your own expense. That is a sacrifice that is appreciated. We look forward to your comments.
STATEMENT OF RICHARD ESTRADA, DALLAS MORNING NEWS, FORMER MEMBER OF THE U.S. COMMISSION ON IMMIGRATION REFORM
Mr. ESTRADA. Good morning. Thank you, Mr. Chairman. Thank you for inviting me to testify today before your subcommittee.
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My name is Richard M. Estrada. I am an associate editor of the editorial page of the Dallas Morning News. I am also a syndicated columnist.
Please allow me to clarify that I have no financial ties to any lobbying effort related to this issue. I have traveled to Washington to present this testimony on my own behalf. These views are my own.
My remarks today are general in nature and are designed to present a framework for considering naturalization and to tell you why I support legislative reform of the process.
Naturalization has been an issue fraught with subtleties, side issues, and controversy since the earliest days of the Republic. From the days of the Alien and Sedition Acts, the way in which the process of naturalization has been carried out has often been subject to the political events and pressures of the day, including partisan politics.
The expansion of the polity through immigration and naturalization, whether it be by one person or by a million people, is part of a momentous process in the stewardship of a nation.
It is so important that the system under which that expansion is carried out deserves to be constantly reviewed to ensure its integrity. Surely, this is especially true in the United States, the world's premier country of immigration.
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In my opinion, it is important for Congress to keep in mind that naturalization has two basic components. One deals with the over-arching purpose of naturalization. The second deals with the process by which that purpose is to be achieved.
That is mainly what we are talking about here today. At root, the purpose of naturalization is to promote and allow for full membership in the polity by eligible new comers.
In order to qualify for citizenship, those new comers must have legal status and be able to demonstrate a commend of certain basic concepts pertaining to the civics, history, and language of the United States' English.
There are legitimate concerns about setting the bar too high or too low. But there should be no question from the outset about the right of the American people to set a meaningful standard. The knowledge demonstrated in the naturalization test is important.
It may not guarantee that those who obtain their citizenship will be good citizens to be sure, but in familiarizing applicants with what the American people believe to be the tools that promote good citizenship, the eventual goal of good citizenship is more likely to be obtained.
Moreover, the very formulation of the process can also serve the national interest by obliging citizens to specify that basic knowledge of how the nation conducts its public life and why.
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The process of naturalization has to do with the way in which the larger goal of naturalization is furthered as defined by law.
To the extent that the 1996 Naturalization Program, known as Citizenship U.S.A., revealed problems, they were the natural out-growth, in my opinion, of focusing almost exclusively on the goal of naturalizing a million people, rather than on first weighing the goal against the efficacy of the system in place.
In sum, the practicalities of process were given short shrift. That was and is regrettable. Why? Because a respect for process from the outset is more likely to result in the implementation of the letter and spirit of the law.
A failure to ensure beforehand that the system is set up to comply with the law is bound, in my opinion, to result in the violation of the letter and spirit of the laws governing naturalization.
It is a sort of rear guard guerilla action that assaults the rule of law and the good faith compromises that go into crafting legislation. Such an outcome only enhances suspicions of the process and of those who seek to naturalize.
A few quick remarks on some specifics about the problems that we are facing. With regard to the backlog, it was said a little while ago that the immigration service was under enormous pressure to reduce an intolerable backlog.
Of course, that is an important issue. I support efforts to reduce that backlog. By the same token, I think the first emphasis should always be on ensuring that the process is one that will not be abused.
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I think that reasonable people can reach a compromise on that particular issue. Let us go to the question of good moral character. If a 10-year time period is desirable, I think it is also desirable for us to establish and define what good moral character means.
I am told that case law interprets this in a particular way. Why not say so rather explicitly so that people will know what the legislation calls for?
With regard to testing; I believe the tests now given in the naturalization process are in need of reform. To begin with, there needs to be a standardized test that is more meaningful to the intending citizen. The test need to facilitate his or her full participation in the polity once citizenship is bestowed.
Such a test should also be setup, not for the purpose of excluding applicants, though some applicants will indeed fail it, but rather with the goal of ensuring that those who take it once or even more times, are guaranteed a meaningful lesson in citizenship every time they take it.
Because the naturalization process is so important, I also believe that the solemnity and majesty of the American nation must be underscored in a formal manner whenever possible. It is often alleged that applicants are intimidated by the presence of government officials.
That this is an argument for excluding them from the process as much as possible. While there are legitimate arguments for budgeting the time and resources of government employees.
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While there are arguments for being sensitive to the nervousness of applicants, I also believe that naturalization applicants can succeed in their quest, even if the presence of at least one government official reminds them of the seriousness of the undertaking.
This issue deserves to be separated from the larger ideological debate about the role of government, precisely because in the context of naturalization, it is the basic precept of nationhood that is at issue. Naturalization, if I may conclude my remarks, is an integral part of this nation's life.
I also think that in order for us to have a successful naturalization process, we must make sure that the process has integrity before undertaking a massive new initiative.
For those who prefer a rural analogy to what should be done, one might recall that it is best to close the barn door before the horse is left. If a post-Henry Ford comparison is more vivid, it is best to check the oil and kick the tires before you start out on a cross country trip.
If you are more comfortable still with space-aged jargon, always check the O-ring seals before blast-off. To return to the issue before us, ensure that the system is setup to do what it purports to do.
The idea of turning new comers into full and participating members of the American polity is, in my view, one of the true glories of this nation. Unless the system is reformed to ensure its integrity.
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To underscore the majesty of the bestowal of U.S. citizenship, the naturalization process could further lose the respect of the American people and undermine, in my opinion, national cohesion.
Widespread examples of testing fraud were and are in fact as reprehensible as the granting of citizenship to felons; however large or small that number may be. Finally, I urge Congress to remember to place this issue in its historical context.
In the four decades or so between the late 1920's and the mid-1960's, the levels of immigration to America fell significantly.
After World War II, many new comers were refugees fleeing Communist oppression. In the 1970's and 1980's, however, the levels of legal immigration began to rise dramatically as the fourth great wave of American immigration began to gather steam.
The decision to grant amnesty and the prospect of naturalization to millions of illegal aliens in 1986 only added to the pressure.
As perhaps even appropriate as it may be to cast blame on those in charge of the naturalization process, at any given time, I submit to you the most fundamental issue is the historical circumstance that has changed enormously, while naturalization has been left on automatic pilot.
Piecemeal reform will avail us nothing. Fundamental reform is imperative. As Congress has consciously chosen to prolong a policy of ongoing mass immigration, as is its right, even to the point of having legalized millions of illegal aliens, a decision whose real world consequences are being seen more clearly with each passing year.
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The need for reforming the process is greater than ever before. A naturalization system that ignores the over-arching goal of granting citizenship only to eligible applicants and which fails to promote good citizenship through a required mastery of elementary civics, history, and English cannot be said to be working and it is not working.
Thank you very much for inviting me to testify before your committee.
[The prepared statement of Mr. Estrada follows:]
PREPARED STATEMENT OF RICHARD ESTRADA, DALLAS MORNING NEWS, FORMER MEMBER OF THE U.S. COMMISSION ON IMMIGRATION REFORM
Good morning. Thank you for inviting me to testify today before your subcommittee.
My name is Richard M. Estrada. I am an associate editor of the editorial page of the Dallas Morning News. I am also a syndicated columnist.
Please allow me to clarify that I have no financial ties to any lobbying effort related to this issue. I have traveled to Washington to present this testimony at my own expense, and the views I am presenting today are my own.
The grandson of Mexican immigrants, I am a native of the state of New Mexico. Among other places, I grew up in El Paso, Texas, located directly across from one of the largest cities in Mexico, Ciudad Juarez, Chihuahua—the point from which my forbears crossed into the United States in 1916.
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Partly because of my background, I have a longstanding interest in the issue of immigration. And over the years, I have naturally developed an interest in the topics of naturalization, citizenship and nationhood. Certainly, I had a unique opportunity to learn more about such matters during my tenure as a member of the U. S. Commission on Immigration Reform.
BACKGROUND AND DEFINITIONS: THE PURPOSE AND PROCESS OF NATURALIZATION.
Naturalization has been an issue fraught with subtleties, side issues and controversy since the earliest days of the republic. From the days of the Alien and Sedition Acts, the way in which the process of naturalization has been carried out has often been subject to the political events and pressures of the day, including partisan politics.
The expansion of the polity through immigration and naturalization, whether it be by one person or a million, is part of a momentous process in the stewardship of a nation. It is so important that the system under which that expansion is carried out deserves to be constantly reviewed to ensure its integrity. Surely, this is especially true in the United States, the world's premier country of immigration.
In my opinion, it is important for Congress to keep in mind that naturalization has two basic components: one deals with the overarching purpose of naturalization, the second deals with the process by which that purpose is to be achieved.
At root, the purpose of naturalization is to promote full membership in the polity by newcomers. But in order to qualify for citizenship, those newcomers must have legal status and be able to demonstrate a command of certain basic concepts pertaining to the civics and history of the United States, as well as the English language. There are legitimate concerns about setting the bar too high or too low, but there should be no question about the right of the American people to set a meaningful standard.
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The knowledge demonstrated in the naturalization test may not guarantee that those who obtain their citizenship will be good citizens, to be sure. But in familiarizing applicants with what the American people believe to be the tools that promote good citizenship, the eventual goal of good citizenship is much more likely to be attained.
The process of naturalization has to do with the way in which the larger goal of naturalization is furthered, as defined by law. To the extent that the 1996 naturalization program known as Citizenship USA revealed problems, they were the natural outgrowth of focusing almost exclusively on the goal of naturalizing a million people, rather than on first weighing that goal against the efficacy of the system in place. In sum, the practicalities of process were given short shrift.
That was and is regrettable. Why? Because a respect for process from the outset is more likely to result in the implementation of the letter and spirit of the law. A failure to ensure beforehand that the system is set up to comply with the law is bound to result in the violation of the letter and the spirit of the laws governing naturalization. It is a sort of rearguard, guerrilla action that assaults the rule of law and the good faith compromises that go into crafting legislation. Such an outcome only enhances suspicions of the process and of those who seek to naturalize.
TESTING.
I believe the tests now given in the naturalization process are in need of reform. To begin with, there needs to be a standardized test that is more meaningful to the intending citizen. That test needs to facilitate his or her full participation in the polity once citizenship is bestowed. Such a test should also be set up not for the purpose of excluding applicants—though some applicants will indeed fail it—but rather with the goal of ensuring that those who take it one or more times are guaranteed a meaningful lesson in citizenship every time they take it.
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Because the naturalization process is so important, the solemnity and majesty of the American nation must be underscored in a formal manner whenever possible. It is often alleged that applicants are intimidated by the presence of government officials and that this is an argument for excluding them from the process as much as possible.
While there are legitimate arguments for budgeting the time and resources of government employees, I believe that naturalization applicants can succeed in their quest, even as the presence of at least one government official reminds them of the seriousness of the undertaking. This issue deserves to be separated from the larger ideological debate about the role of government, precisely because in the context of naturalization, it is the basic precept of nationhood that is at issue.
A NEW AMERICANIZATION MOVEMENT. Congress should move to promote the overarching goal and process of naturalization in another way. Earlier in the century, government, business and education forged a public-private partnership to promote the teaching of civics, American history and English to newcomers in order to help them obtain citizenship and become better citizens. The process was occasionally criticized for demeaning newcomers, and, indeed, it could be an insensitive undertaking.
Even so, that is an argument for combating insensitivity rather than abandoning Americanization. As Barbara Jordan, the late chair of the Commission on Immigration Reform once put it, ''it's our word, and we're going to take it back.'' I urge you to promote a new Americanization movement that affirms the value of having the nation as a whole join together in teaching newcomers the rudiments of civics, U. S. history and English. Newcomer and citizen alike will benefit.
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THE ISSUE OF UNITY.
In an issue as politically charged as this one, the attempt to stage end runs around the spirit and the letter of the law by ignoring the step-by-step process of naturalization and the capability of the system to deal with varying numerical levels of naturalization applications could ultimately prove to be devastating to social cohesion and the national interest. A piecemeal approach to reform will not work, in my opinion.
Let me state the obvious. The wrongful granting of citizenship to thousands of ineligible applicants, including hundreds of convicted felons, undermined the interests of the American people. Yet, it is also true that a balanced approach would have better served the interests of eligible applicants by protecting them from unjustified but almost inevitable suspicion that accompanied the reality of so many wrongful naturalizations.
The interests of eligible applicants can also be undermined when they are forced to wait longer than would otherwise be the case because the process too often fails to winnow out clearly ineligible applicants at the beginning. Again, a naturalization progress with integrity can serve the national interest broadly defined and the interests of eligible applicants at the same time.
For those who prefer a rural analogy to what should have been done, one might recall that it's best to close the barn door before the horse has left. If a post-Henry Ford comparison is more vivid, it's best to check the oil and kick the tires before you start out on a cross-country road trip. And if you're more comfortable still with space-age jargon, always check the O-ring seals before blast off. To return to the issue before us, ensure that the system is set up to do what it purports to be able to do.
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Naturalization is an integral part of this nation's life. That is unlikely to change in the forseeable future. The idea of turning newcomers into full and participating members of the American polity is, in my view, one of the true glories of this nation. But unless the system is reformed to ensure its integrity and to underscore the majesty of the bestowal of U. S. citizenship, the naturalization process could further lose the respect of the American people and undermine national cohesion.
Finally, I urge Congress to remember to place the issue in its historical context. In the four decades or so between the late 1920s and the mid-1960s, the levels of immigration to America fell significantly. After World War II, many newcomers were refugees fleeing Communist oppression. In the 1970s and '80s, however, the levels of legal immigration began to rise dramatically as the fourth great wave of American immigration began to gather steam. The decision to grant amnesty and the prospect of naturalization to millions of illegal aliens in 1986 only added to the pressure.
CLOSING REMARKS:
As easy and perhaps even appropriate as it may be to cast blame on those in charge of the naturalization process at any given time, I submit to you that the most fundamental issue is that historical circumstances have changed enormously while naturalization has been left on automatic pilot.
As Congress has consciously chosen to prolong a policy of ongoing mass immigration, even to the point of having legalized millions of illegal aliens, a decision whose consequences are being seen more clearly with each passing year, the need for reforming the naturalization process is greater than ever before.
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In all candor, I personally have serious reservations about the high levels of immigration today. But again, I am not here to debate that. Given the reality of policy decisions that have already been made, I believe deeply that eligible applicants for naturalization and the nation as a whole deserve a naturalization system that works.
A naturalization system that ignores the overarching goal of granting citizenship only to eligible applicants while promoting good citizenship through a required mastery of very elementary civics, U. S. history and English cannot be said to be working. And it is not working.
As you continue in your labors toward a system characterized by integrity, you may wish to consider the words of Abraham Lincoln, who once said: ''As our case is new, so must we think anew and act anew. We must disenthrall ourselves, and then we shall save our country.'' Thank you for the honor of allowing me to testify before your distinguished subcommittee.
Mr. SMITH. Thank you, Mr. Estrada.
Mr. Teitelbaum.
STATEMENT OF MICHAEL TEITELBAUM, ALFRED P. SLOAN FOUNDATION
Mr. TEITELBAUM. Thank you, Mr. Chairman. It is a pleasure to be here with you this morning. (It is morning, yes.)
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I would first like to associate myself with the philosophical perspectives presented so articulately by Richard Estrada. We did not have a chance to discuss, before this hearing, what we individually were going to say.
His remarks tracked fairly closely some that you will find in my written testimony, but he said it, as usual, much better than I could. I would like to associate myself with those remarks and not repeat the thrust thereof, in the interest of time.
As I understand the proposed act, its intention is to clarify, to strengthen, to legitimize the processes by which this country admits and welcomes new citizens via naturalization.
There are very few aspects of immigration law that are as important as naturalization, for the reasons that Mr. Estrada has indicated. It is the process by which countries, such as the United States, that have substantial legal immigration (there are very few such countries in the world; surprisingly few), it is the process by which such countries determine which non-citizens are eligible to become citizens, with all of the important rights and responsibilities that attach.
So, it is critical that the processes underlying naturalization be of the highest integrity. I would associate myself with Congressman Watt's definition of integrity in his remarks, having to do both with security and efficiency, or with Paul Virtue's definition of quality determinations in a timely manner.
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I believe both aspects are important. Your efforts to clarify, strengthen, and legitimize the naturalization process speak appropriately to structural and legal problems that have been in place for many years before the Citizenship U.S.A. Program, but came into sharp focus during that program.
So, let me know comment very briefly on the seven major areas, if I have time, in this proposed legislation. With respect to deportation status as a bar to citizenship, my understanding is that the purpose is to simply clarify in law the common sense principle that a person who is currently deportable or under order of deportation, or in deportation proceedings, may not at the same time, be naturalized to become a U.S. citizen. I cannot see why such a bar should not be embodied in law.
With respect to ''good moral character'' and the period of 5 to 10 years, I have some concerns about the archaic phrase ''good moral character.'' My understanding is that in practice it is interpreted to imply largely the absence of a criminal record. I believe it would be good to define it more clearly than normal practice.
While any length of years is arbitrary, I, myself, find no fault with specifying a decade as a reasonable standard. It would be desirable though to have clearer guidelines for determining ''good moral character.''
As I understand it, there have been problems of variability of administration of this provision. My understanding is that the INS is working on regulations to give this greater consistency.
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Finally, I wonder if the sponsors intended to allow for exemptions from the 10-year period for persons who have been incarcerated abroad for political speech, shall we say, or other quite peaceful, normal, everyday activities that would certainly not lead to incarceration in the U.S.
There may be a provision somewhere else in this very complex act, which you Gentlemen and Ladies will know much better than I, that would exempt such persons. I may misunderstand the relationship between this provision and the 180 days of incarceration specification.
I would urge you to check to make sure that people who would be admissible as bona fide refugees, who had been incarcerated abroad for such reasons, would not unintentionally be precluded by virtue of having been incarcerated for more than 180 days abroad
. With respect to criminal background checks, I think it makes good sense to require all persons applying for naturalization, et cetera, who are not themselves children, to have appropriate background checks done. We have already heard about the serious damage that can be and has been done to these provisions of the INS when there is a failure to conduct effective background checks.
When such benefits as naturalization have been granted to even small percentages of persons who were war criminals, serious felons, drug traffickers, terrorists, or others, that is a major problem.
The counter argument, as I understand it, is that the numbers of such failures is small relative to the number of actions taken. I agree with that statement, but I find it not very convincing. With numbers in these categories in the order of a million or more per year, even a very small percentage failure rate would imply 10,000 additional criminals and other excluded persons added each year.
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Yet, we know that even a tiny number of people, for example, those convicted in the World Trade Center bombing, or the CIA shootings, and the very small numbers apparently of very violent felons who earlier were admitted during the Mariel boat lift, we know that those very small numbers have done serious damage to public support for continued legal immigration and refugee admissions.
With respect to fingerprints, the bill's requirements as to which agencies should be authorized to take fingerprints were unanimously recommended by the U.S. Commission on Immigration Reform.
I can only wonder what the INS was thinking about when it decided in the last Administration, not in this Administration but continued by this Administration, to subcontract out this critical task out to dubious operators.
Fourth, the interview for naturalization: again, my understanding is the intention is to codify current regulation and practice into law.
The fact is that the interview has, at sometimes, been a bottleneck. I might suggest that consideration be given to a carefully limited provision that would allow some kind of fast track interview for the easy cases. This might be responsive, in part, to Congressman Berman's questions about the backlog. I recognize that shortcuts taken during Citizenship U.S.A. may have made the subcommittee skeptical of granting such discretion.
I simply raise the question in case you have agreement on your subcommittee that there are some categories that are clearly easy cases that would not raise doubts in your mind.
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With respect to interviews about adjustment of status, a quick question. Would this provision require young children for whom an application for adjustment of status has been filed to go through an interview?
I am sure that is not the intent. I would ask that it be checked. With respect to outside testing entities, again, this provision recommended——
Mr. SMITH. Mr. Teitelbaum, let me interrupt you just because I would like to move on. It just so happens that the provisions that you are getting ready to address right now, I have questions about.
Mr. TEITELBAUM. Yes; the testing program.
Mr. SMITH. The testing program, as well as the green cards, I am going to be asking you about shortly.
Mr. TEITELBAUM. Should I skip over what I say then?
Mr. SMITH. Yes.
Mr. TEITELBAUM. Okay. Well, I will not even say anything about the substance of the tests. I will say something very quickly, Mr. Chairman, about the green card accountability.
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I would agree with those who have raised the question as to enforceabiltiy. I believe it was Mr. Berman and Mr. Virtue. If I misplace my green card and then need to gain a benefit months later why, under the proposed provision, would I not simply say that I lost it a couple of days ago to avoid the $50 fine? I do not know how that would be enforceable.
I also wondered how the $50 was selected. That is the cost of a parking ticket in New York City.
With respect to denaturalization, these provisions, to me, seem reasonable, so long, and importantly, as they are clearly explained to applicants before they sign their applications.
All applicants need to understand that while some misdemeanors and felonies may not disqualify them for naturalization, lying under oath about such criminal background would disqualify them.
In short, lying under oath is a serious crime. Extension of the statute of limitations to 5 years seems reasonable.
Finally, on the quality assurance, well, we have had discussion of that. I will skip over that.
With respect to delays in naturalization ceremonies, the subcommittee might want to consider measures, and this has been a topic of discussion already this morning, that would remove some of the bottlenecks having to do with judicial naturalization.
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In some jurisdictions, scheduling problems have produced long delays in naturalization ceremonies. On this I would refer you to the recommendation of the Commission on Immigration Reform, which I specify or copy in my written testimony.
Overall, Mr. Chairman, I believe the bill includes constructive proposals to clarify, strengthen, and legitimize the process by which this country admits and welcomes new citizens via naturalization. I hope you find the comments and suggestions here to be of some use as you proceed. Thank you very much.
[The prepared statement of Mr. Teitelbaum follows:]
PREPARED STATEMENT OF MICHAEL TEITELBAUM, ALFRED P. SLOAN FOUNDATION
Mr. Chairman, Members of the Subcommittee, Ladies and Gentlemen:
It is a pleasure for me to appear before you today to offer comments on the proposals embodied in the Naturalization Reform Act of 1998. I am Michael S. Teitelbaum, a foundation executive at the Alfred P. Sloan Foundation in New York. By background I am a demographer, with a doctorate in this field from Oxford University. I was first introduced to the then-weak data and research on international migration while I served as Staff Director of the House Select Committee on Population from 1979–81. For the past 15 years I have done considerable research and analysis of immigration and refugee policies in the United States and many other countries.
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From 1991 to last December, I served as a Commissioner and Vice Chair of the U.S. Commission on Immigration Reform (widely known as the Jordan Commission after its Chair, former Congresswoman Barbara Jordan, who died in 1996), which completed its work on schedule in December 1997. Prior to this, I also served as a Commissioner on the U.S. Commission for the Study of International Migration and Cooperative Economic Development (known as the Asencio Commission after its chair Ambassador Diego Asencio), which completed its report to the Congress and President in 1990.
In conformity with House Rule XI, clause 2(g)(4), I have received no Federal contracts, grants or subcontracts within the past two fiscal years, other than serving as a member of the U.S. Commission on Immigration Reform. I am appearing before you at your invitation, and entirely in my personal professional capacity, representing no person or entity other than myself.
As I understand this proposed Act, it is intended to clarify, strengthen and legitimize the processes by which this country admits and welcomes new citizens via naturalization. There are very few aspects of immigration law that are as important as naturalization, as indicated even by the words used to name the relevant Executive branch agency: the Immigration and Naturalization Service. Naturalization is the process by which any country, but most notably those that explicitly allow substantial volumes of legal immigration for other than temporary stays, determine which non-citizens are eligible to become citizens,(see footnote 38) with all of the important rights and responsibilities that attach to that status.
It is critical that the processes underlying naturalization be of the highest integrity. To allow the naturalization process to be besmirched by fraud, corruption, mis- or malfeasance, partisan politics, or simple inattention is to undermine the very legitimacy of legal immigration itself, and to diminish the status of most naturalized citizens who have become U.S. citizens under conditions of high integrity. Since naturalization confers the right to vote, a naturalization process that lacks integrity can inject a major source of contamination to the legitimacy of American electoral and political processes, which do not need any additional such insults. In short, I believe your efforts to clarify, strengthen and legitimize the naturalization process speak to structural and legal problems that have been in place for many years but came into sharp focus during the Citizenship USA program.
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Let me now comment very briefly on the seven major areas touched by this proposed legislation:
1. Deportation status as a bar to citizenship: As I understand it, these proposals simply clarify in law the common sense principle that a person who is currently deportable, or under order of deportation, or in deportation proceedings may not at the same time be naturalized to become a U.S. citizen. I doubt if anyone will object to this in principle, though we know that in practice it has happened in too many cases, due to legal ambiguities and administrative mishap. I cannot see why such a bar should not be embodied in law.
2. Good moral character period: Would increase from 5 to 10 years the past period over which the applicant for naturalization would demonstrate good moral character. As I understand it, the somewhat archaic phrase ''good moral character'' is interpreted to imply largely the absence of a criminal record. While any length of years is arbitrary, I find no fault with specifying a decade as a reasonable standard.
May I add here that it would be desirable if some clearer guidelines for determining ''good moral character'' could be developed, as there reportedly has been some variability of administration of this provision. I understood from Commission on Immigration Reform discussions during 1997 that the INS is working on regulations to give this matter greater consistency.
Finally, I wonder if the sponsors intended to allow for exemptions from the 10-year period for persons incarcerated abroad for political speech or other peaceful activities that would not lead to imprisonment in the U.S. There may be provision for such an exemption somewhere in the Act, and it is also possible that I misunderstand the relationship between this provision and that relating to conviction resulting in more than 180 days of incarceration. But the Subcommittee may want to check to make sure that bona fide refugees incarcerated in totalitarian states for such reasons would not unintentionally be caught in the net, e.g. political prisoners imprisoned in countries such as Cuba who are paroled into the U.S. upon release.
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3. Criminal background checks: To protect the credibility and legitimacy of these benefits, system, it makes good sense to require all applying for naturalization, adjustment of status, asylum and temporary protected status who are not themselves children to have appropriate background checks done. Serious damage can be, and has been, done to these provisions of the INA when, due to failure to conduct effective background checks, such benefits have been granted to even small percentages who were war criminals, serious felons, drug traffickers, terrorists and others who (alas correctly) see U.S. immigration and refugee law as useful means to obtain legal residence in the country in order to engage in, or escape the consequences elsewhere of, such illegal activities.
The counter-argument is that the numbers of such failures is small relative to the number of actions taken. This is, frankly, not very convincing. With numbers in these categories on the order of a million per year or more, even a one percent failure rate implies 10,000 additional criminals and other excludable persons added each year. Yet even a few (such as those convicted in the World Trade Center bombing, the CIA shootings, and the small numbers of very violent felons who earlier were admitted during the Mariel boatlift from Cuba), have done serious damage to public support for legal immigration and refugee admissions.
3a. Fingerprints: The bill's requirements as to which agencies are authorized to take fingerprints for the purposes of criminal background checks were unanimously recommended by the U.S. Commission on Immigration Reform.
Personally, I can only wonder at what the INS was thinking about when it decided (I believe this decision was taken during the last Administration but continued by the current one) to subcontract out the critical task of taking fingerprints to large numbers of small for-profit and non-profit organizations, given the reasonable expectation that under such conditions fingerprinting would be subject to serious fraud and abuse. When, as might have been anticipated, such fingerprint businesses—widely scattered in ''convenience stores'' and storefronts—proved to be difficult to oversee and police, this unwise decision led to very substantial damage to the credibility and legitimacy of the naturalization process.
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4. Interview for Naturalization: As I understand it, this provision is intended to codify current regulation and practice into law. The fact that the interview has at some times been a bottleneck that delays timely naturalization, however, might suggest that consideration be given to a carefully-limited provision allowing ''fast-track'' interviews for easy cases, e.g. those that present absolutely no questions of any kind at the record-check and testing stages.
I recognize that shortcuts taken during Citizenship USA may have made the Subcommittee skeptical of granting such discretion legislatively to the Executive branch, but I simply raise the question in case there are some kinds of clearly-specifiable cases that would not raise such questions.
4a. A question about interviews for adjustment of status: Would this provision require young children for whom an application for adjustment of status has been filed to go through an interview? My understanding is that adjustment petitions are handled for each individual separately (unlike naturalization of children as part of a family), and hence I wonder if the language might unintentionally require young children to have adjustment interviews? (But I emphasize that I am not an immigration lawyer, and may misunderstand this . . .)
5. Outside testing entities: The proposed provision to require that citizenship testing be undertaking by a single outside testing entity under supervision of the INS was recommended by the U.S. Commission on Immigration Reform, which was unimpressed by the variable and sometimes casual nature of the tests applied to naturalization applicants in different regions of the U.S. We have now heard in recent months that fraudulent practices affected the tests of many thousands of applicants, who allegedly were ''passed'' by corrupt non-governmental agencies authorized by the INS to implement citizenship tests. The credibility of the naturalization process is seriously damaged by such alleged abuses.
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Given such reports, it is important that the Attorney General require that a credible test again be passed in cases where she ''has reasonable grounds to believe that the administration of the test was impaired by fraud, misrepresentation, or other misconduct or negligence that jeopardized the reliability of the test results'' (Section 7(a)(3)). Similar retesting is required in such circumstances by the College Board, Educational Testing Service, and all other legitimate testing agencies, so as to protect the core credibility of their testing. It is hard to see why such a practice should not apply to citizenship tests, which are of far greater significance that college admission scores.
5a. Should the history/civics and English tests be done the same way?: I would add the following suggestion for your consideration: Might it not make sense to have the same outside testing entity conduct a standardized test of both written and spoken English, along with the history/civics test? It is unclear to me why these two tests should be implemented so differently. Given the fraud reports above, the INS interviewer should still have discretion to require interviewees to retake the English test if it appears that he/she cannot comprehend basic English, notwithstanding a passing grade on the standardized test.
5b. The Substance of the Tests is Critical: The Commission on Immigration Reform recommended not only that the citizenship test be standardized, but also concluded that the currently-used testing procedures
''do not adequately assess . . . if applicants have a meaningful knowledge of U.S. history and civics and are able to communicate in English. . . . The U.S. history and civics test should assess whether applicants understand the basic principles of U.S. government: for example, what it means to have freedom of speech or the freedom to assemble. The English test should accurately and fairly measure an immigrant's ability to speak, read and write; the current practice of dictating English sentences for applicants to write is not an effective means of testing English proficiency.''
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I agree strongly with these recommendations, and commend them to you as you consider appropriate changes in this bill.
6. Green card accountability:
a) The first requirement—that a lost, stolen or destroyed green card must be reported to the INS within seven days, or a fine of $50 be paid—seems a reasonable and moderate provision to emphasize that the green card is a valuable official identity document that has a substantial ''street value''.
I do have some minor questions:
—If I misplace my green card and then need it to gain a benefit months later, why under the proposed provision could I not simply say that I lost it a couple of days ago to avoid the $50 fine?
—Why was a fine of $50 selected? That's the cost of a parking fine in New York City. What is the proper level of penalty, or rather, how could an appropriate level be set?
—Why was the interval of 7 days selected, and not e.g. 14 ? The goal is to provide incentives to green-card holders to report lost or destroyed cards, but a week may not be long enough to notice that it is missing. Perhaps the fine should increase with the length of time since loss?
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b) The requirement that green cards must be turned in before a naturalization certificate is received seems rather elementary. Indeed, it is difficult to understand how anyone involved in Citizenship USA could have acted otherwise; those green cards that were not collected remain valid INS-issued documents with substantial black market value.
A minimum 30-day waiting period for those submitting an affidavit that his/her green card was lost/stolen/destroyed also seems reasonable. A suggestion here: The 30-day waiting period provision is described as giving the INS an opportunity to investigate the circumstances, but I wonder if it would not also be advisable to require the INS to undertake such investigations where the circumstances of loss/stolen/destroyed warrant further inquiry, to clarify that the waiting period may be considerably longer than 30 days in the latter cases, and to mandate that records of naturalization should include notations of loss/stolen/destroyed green cards in a form that would facilitate easy automated data searches for patterns and trends in such reports. Once again, the goal is to strengthen the credibility of the naturalization system.
7. Denaturalization: These provisions seem reasonable, so long as they are clearly explained to applicants before they sign their applications. They need to understand that while some misdemeanors and felonies may not disqualify them for naturalization, lying under oath about such criminal background would disqualify them—in short, that lying under oath is a serious crime.
Extension of the statute of limitations to five years seems reasonable, given the degree to which the INS has been overloaded and slowed in its processes.
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8. Quality assurance for the naturalization process:
Given the problems that have come to public attention in recent years, the required annual reports for three years are a worthwhile mechanism for re-establishing credibility.
I would add the following suggestion for your consideration: non-governmental organizations (both for-profit and not-for-profit) often commission unrelated firms to undertake management audits of their practices and procedures, in a process not dissimilar to the annual external audits used to verify their financial accounts. Such an external audit of the required INS reports would enhance their credibility; it could be undertaken by the GAO, by the Inspector General of the Justice Department, or by one of the large national auditing or management consulting firms. While the bill allows for such a procedure under ''other audit procedures'' at the Attorney General's discretion, given recent history the Subcommittee may wish to consider the merits of mandating such an external audit, or clarifying in report language that such an external audit would be welcome under the ''other audit procedures'' category.
9. Delays in naturalization ceremonies: I wonder if, in addition to embracing measures intended to preclude any repetition of recent inappropriate naturalizations of criminals and others not eligible, the Subcommittee might wish to consider measures that would remove some of the bottlenecks that have unnecessarily delayed naturalization for some of the large majority of cases that are valid and lawful.
In particular, in some jurisdictions scheduling problems in the judicial branch have produced long delays in naturalization ceremonies for approved applicants. On this, I would simply point to the Commission on Immigration Reform's recommendation that Congress restore authority for administrative naturalization, with the requirement that all such administrative ceremonies be ''solemn and dignified public affirmations of a mutual obligation that new Americans and their adopted country make to one another.'':
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The Commission recommends that to reduce this waiting time the Congress restore the Executive Branch's sole jurisdiction for naturalization. The Executive Branch should continue to work with federal judges as well as other qualified institutions and personnel, such as state courts and Immigration Judges, to ensure that swearing-in ceremonies are consistently conducted in a timely, efficient and dignified manner. Eminent persons who would add dignity to the ceremony could be invited to participate as well. Standards of conduct should be developed for all such participants to assure, for example, that all remarks are free of partisan politics.
Overall, I believe that the bill includes constructive proposals to clarify, strengthen and legitimize the processes by which this country admits and welcomes new citizens via naturalization. I hope you will find the comments and suggestions in this testimony to be of some use as you proceed in your consideration of this legislation.
Thank you for your kind attention.
Mr. SMITH. Thank you, Mr. Teitelbaum. Mr. Hill.
STATEMENT OF ROBERT HILL, VENABLE, BAETJER, HOWARD AND CIVILETTI, LLP, FORMER MEMBER OF THE U.S. COMMISSION ON IMMIGRATION REFORM
Mr. HILL. Good morning, Mr. Chairman and Members of this subcommittee. I wish to thank you for this opportunity to testify this morning on the proposed Naturalization Reform Act of 1998.
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For the record, I am currently a partner in the Washington Office of Venable, Baetjer, Howard and Civiletti where I manage the firm's corporate immigration and consular law practice.
From 1991 through 1997, together with my colleagues on this panel, Dr. Teitelbaum and Mr. Estrada, I served as a member of the U.S. Commission on Immigration Reform.
My testimony today largely reflects the work of that commission, particularly as embodied in its final report to Congress entitled ''Becoming an American: Immigration and Immigrant Policy,'' which was formally submitted to this subcommittee on September 30, 1998.
To the extent, however, that the proposed legislation under consideration includes matters not addressed in the commission's report, the comments that follow reflect my personal opinions and are not intended to suggest nor speculate as to the opinions of other members of the commission with respect to such matters.
United States citizenship is the greatest privilege which we as Americans possess and which we as a nation may bestow upon an alien. Because citizenship is so valuable, we must ensure that it only be granted with great care and deliberation. As the commission emphasized in its report, American unity depends upon the continuing belief of its people in the principles and values embodied in the Constitution.
New Americans must earn the privilege of citizenship through personal character, commitment, and contribution: Character as reflected in a virtuous life. Commitment as demonstrated by allegiance to the principles of the Constitution of the United States and obedience to its laws.
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And contribution through a proper disposition to the good order and happiness of its people. This is what we, as a people, expect of new citizens. It is our sovereign right to deny the privilege of citizenship to any person whose individual conduct is incompatible with those basic expectations.
At the same time, American society is largely an amalgamation of immigrant traditions that have created the world's most successful multi-ethnic nation. The rich history of immigration to America has shown that ethnic and religious diversity, based on individual freedom, is compatible with national unity.
In light of these considerations, our responsibilities to the nation and to those seeking a permanent place among us are simple to state, if not to fulfill. Citizenship should be made available without unnecessary delay to those individuals who have earned it, but uniformly denied to the undeserving remainder.
Any effort at naturalization reform must then strive to attain these dual goals: preserving the integrity of the system through proper eligibility determinations, while enhancing the efficiency of the administrative process once that determination has been made.
Unless we constantly strive to attain this balance, the system will continue to lose credibility among the American public, as well as those seeking to become a part of it.
The proposed legislation reflects a serious effort to address deficiencies that have contributed to erroneous substantive naturalization decisions undermining confidence in the integrity of the system.
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In my view, the assessment of those deficiencies should not be reduced to a question of numbers or percentages. If any person with a serious criminal record or other disqualifying conduct has been naturalized through administrative haste or incompetence, it is a legitimate reason for concern.
Given the Government's record in the naturalization program, I remain convinced that legislative action is appropriate and necessary. I support the basic framework of reform reflected in the bill.
In large part, it appears consistent with the overall recommendations and concerns expressed by the commission. In its present form, it remains an unfinished work. It can only be completed by addressing the other fundamental goal; enhancing the efficiency of the process by which deserving applicants are naturalized.
I would like to comment briefly on a few specific provisions in the bill and conclude with a personal observation. I have submitted full written testimony addressing all of the provisions.
First, the bill's provision with respect to deportability of the applicant. There can be little doubt that a person who by his or her own conduct has forfeited the lawful eligibility to remain in this country, after having been granted the privilege of lawful permanent residence, is even less entitled to become a citizen.
As a result, the bill's proposal to deny U.S. citizenship to aliens who are deportable because of criminal conduct, who are in deportation proceedings, or who are under an order of deportation, is entirely reasonable.
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Indeed, without such a rule in place, the public would quickly lose faith in the nation's ability to grant citizenship solely to individuals who have earned it.
One does not earn it by abusing the privilege of lawful permanent residence already bestowed by committing crimes or engaging in other prescribed conduct that would warrant removal.
It should be made clear that the decision on eligibility is only held in abeyance until the fact of deportability has been conclusively established pursuant to law.
Second, the bill's testing provisions. One of the commission's most important and concrete recommendations involves English language proficiency and civics testing.
Specifically, the commission recommended that the Federal Government contract with one national respected testing service to develop and give the English and civics test to naturalization applicants.
The proposed bill's provisions with respect to testing largely reflects this recommendation, recognizing that with proper oversight the testing services can be properly administered by a private organization.
The bill should go further, however, and require not only that a single outside source administer, but also design and develop a standardized citizenship examination with continued Government oversight and pursuant to Government contracting procedures, of course.
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I am particularly concerned that the requirement in the bill's current language requiring INS to develop such a test itself only adds to what the commission identified in its structural reform recommendations as ''mission overload.''
INS is a governmental agency charged with administration and enforcement of the immigration laws of the United States. It is not an educational testing service or academic institution with expertise in standardized testing and assessment.
To ask it to assume responsibility for the development of such a test would only add further to a weight of responsibility that is already in excess of what any one agency can handle.
Instead, having one organization under contract pursuant to strict Government contract rules would assist the Government to substantially improve its oversight of English language and civics testing without sacrificing or contributing further to INS' organizational and management problems.
Finally, Justice Department oversight. Requiring the Attorney General to oversee INS compliance with the requirements of the bill and to report annually to Congress for a 4-year period are critical, though transitional requirements.
With such oversight, the Government can ensure that the rules governing consideration of naturalization applicants are conducted in a fair, consistent, and accurate manner. Here the proposed bill falls short.
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To serve the other goal of the naturalization program, expeditious processing of applications of worthy individuals, Congress should consider adopting specific goals or guidelines for the amount of time an individual must wait from filing his or her application for naturalization and being sworn in as a new citizen.
Recent anecdotal evidence suggest in some jurisdictions, as much as two to 3 years may pass between the filing of a naturalization application and the interview, and another year from the interview until the successful applicant is sworn in as a citizen. Four years from application to citizenship is too long and it must be corrected.
I would like to offer a final observation on the broad topic of naturalization reform. There is no question that the Citizenship U.S.A. Program was far more than merely a political or a public relations catastrophe.
The results of that program were simply unacceptable. To its credit, the Justice Department has taken decisive action to address the deficiencies in the system subsequently exposed. But there was a political cost as well.
The public's confidence in the integrity of the system was further undermined as a result of the Citizenship U.S.A. Program.
Indeed, as cynical as it may be, significant segments of the public perceived the Administration's entire program and the Republican response to it to be motivated largely by election year politics.
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True or not, the perception itself is condemning. I would urge you to prove the cynics wrong and work together to enact bipartisan legislation that accomplishes the dual objectives of reform identified by the commission: integrity and efficiency.
Then show the new citizens who will benefit from your legislation that they have truly become Americans. Go out and compete for their votes in the free marketplace of ideas. Thank you.
[The prepared statement of Mr. Hill follows:]
PREPARED STATEMENT OF ROBERT HILL, VENABLE, BAETJER, HOWARD AND CIVILETTI, LLP, FORMER MEMBER OF THE U.S. COMMISSION ON IMMIGRATION REFORM
Mr. Chairman and Members of the Subcommittee, I wish to thank you for this opportunity to testify before you on ''the proposed Naturalization Reform Act of 1998.'' For the record, I am currently a partner in the washington office of Venable, Baetjer, Howard & Civiletti, LLP, where i manage the firm's Corporate Immigration and Consular Law Practice within the labor and employment group. From 1991 through 1997 together with my colleagues on this panel—Dr. Teitelbaum, Mr. Morrison and Mr. Estrada—I served as a Member of the U. S. Commission on Immigration Reform. My testimony today largely reflects the work of that Commission particularly as embodied in its Final Report to Congress entitled ''Becoming an American: Immigration and Immigrant Policy'' which was formally submitted on September 30, 1997. To the extent, however, that the proposed legislation under consideration includes matters not addressed in the Commission's Report, the comments that follow reflect my personal opinions and are not intended to suggest or speculate as to the opinions of other members of the Commission with respect to such matters.
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United States citizenship is the greatest privilege which we as Americans possess and which we as a nation may bestow upon an alien. Because citizenship is so valuable, we must ensure that it only be granted with great care and deliberation. As the Commission emphasized in its Report, American unity depends upon the continuing belief of its people in the principles and values embodied in the Constitution. New Americans must earn the privilege of citizenship. And the statute clearly contemplates something more than simply residing or being physically present in the United States for a prescribed period of time to demonstrate eligibility. Instead, one earns the privilege of citizenship through personal character, commitment, and contribution: character as reflected in a virtuous life; commitment as demonstrated by allegiance to the principles of the Constitution of the United States and obedience to its laws; and contribution through a proper disposition to the good order and happiness of its people. This is what we as a people expect of new citizens and it is our sovereign right to defer or deny outright the privilege of citizenship to any person whose individual conduct is incompatible with those basic expectations.
At the same time, American society is largely an amalgamation of immigrant traditions that have created the world's most successful multiethnic nation. The rich history of immigration to America has shown that ethnic and religious diversity based on individual freedom is compatible with national unity. We must not impede the progress to citizenship of deserving immigrants. In light of these considerations, our responsibilities to the nation and to those seeking a permanent place among us are simple to state, if not to fulfill: citizenship should be made available without unnecessary delay to those individuals who have earned it, but uniformly denied to the undeserving remainder. Any effort at Naturalization Reform must then strive to attain these dual goals: preserving the integrity of the system through proper eligibility determinations while enhancing the efficiency of the administrative process once that determination has been made. Unless we constantly strive to attain this balance, the system will continue to lose credibility among the American public as well as those seeking to become part of it.
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The proposed legislation reflects a serious effort to address deficiencies that have contributed to erroneous substantive naturalization decisions undermining confidence in the integrity of the system. In my view, the assessment of those deficiencies should not be reduced to a question of numbers or percentages. If any person with a serious criminal record or other disqualifying conduct has been naturalized through administrative haste or incompetence it is legitimate reason for concern. Despite personal reservations over specific language included in certain provisions which I will discuss in a moment, I support the basic framework of reform reflected in the Bill. In large part it appears consistent with the overall recommendations and concerns expressed by the Commission. But in its present form it remains an unfinished work. It can be completed only by addressing the other fundamental goal—enhancing the efficiency of the process by which deserving applicants are naturalized.
Now to the specifics. There can be little doubt that a person who by his or her own conduct has forfeited the lawful eligibility to enter or remain in this country after having been granted the privilege of lawful permanent residence is even less entitled to subsequently become a citizen. As a result, the bill's proposal to deny U.S. citizenship to aliens who are deportable because of criminal conduct, are in deportation proceedings, or are under an order of deportation, is entirely reasonable, assuming of course that the decision is only held in abeyance until the fact of deportability has been conclusively established pursuant to law. Indeed, without such a rule in place, the public would quickly lose faith in the nation's ability to grant citizenship solely to individuals who have earned it. And one does not earn it by abusing the privilege of lawful permanent residence already bestowed by committing crimes or engaging in other proscribed conduct that would warrant removal.
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The bill's requirement to extend from the current minimum of five to ten years the period during which an applicant for naturalization must demonstrate that he or she has been of good moral character may be construed to constitute a new legal requirement for naturalization which the Commission concluded in general was unnecessary. On page 46 of its Final Report, the Commission expressed its judgment that ''. . . the current legal requirements for naturalization are appropriate . . .'' nevertheless, the Commission did not address specifically the time period involved and if the change is deemed necessary to correct serious, identifiable deficiencies in eligibility determinations it would appear to serve a similarly salutary purpose as the change with respect to deportability. As I have mentioned, citizenship is the greatest honor that this country may bestow, and accordingly it should be reserved for only those individuals who have demonstrated their fitness for this honor through their character, commitment and contribution.
Moreover, because the minimum period of U.S. residency before applying for citizenship is five years, the proposed good moral character period would include, for many applicants, at least some time spent in their home country. On one hand, this may serve to frustrate applicants who have sought refuge from a criminal record in their homeland by becoming lawful residents and then seeking naturalization. On the other hand, however, I am concerned about potential ineligibility determinations based upon criminal convictions in countries that routinely convict political opponents or dissidents on trumped up criminal charges or whose judicial systems fail to offer adequate protections to the rights of its citizens in criminal proceedings. As in the context of refugee status determinations, government examiners must have adequate discretion to assess these circumstances in the naturalization context as well. And it is essential that the required standard when effective be applied strictly to individual applicants on a case-by-case basis.
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Requiring fingerprint checks is a critical component of the screening process, both of aliens and the families who will care for immigrant children. The bill's proposal on fingerprinting and criminal background checks would dramatically improve the system's current deficiencies—deficiencies, I would add, that the government has already taken the initiative to address on its own. In an effort to ensure accurate print taking in the wake of the Citizenship USA catastrophe, the INS no longer accepts fingerprints recorded by private agencies, or ''Designated Fingerprint Services.'' This limitation is intended to improve the quality of fingerprints taken and to ensure that the identity of the individuals whose prints are submitted has been verified. Both are critical.
The bill's proposal to again permit private enterprises to compete in bids to provide services in administering the fingerprint process, under direct supervision of INS presumably through the Application Support Centers recently announced by the Service is a realistic step in attempting to facilitate efficiency while restoring integrity. In selecting a ''single source service provider,'' the government must rigorously screen and consistently monitor for continuing capacity, capability, and integrity in processing requests. Failure to meet the government's standards should result in termination of the contract.
Although a face-to-face interview is indispensable in the case of an application for naturalization, the same requirement for adjustment of status to lawful permanent residence—other than those based on marriage because of the high incidence of fraud—is unnecessary, in my view. Instead, INS should be given statutory authority in such circumstances to waive the requirement of an interview in order to expedite the application process, particularly in employment-based cases as it does now as a matter of policy. Such adjustment cases can be reviewed on the basis of the file and a determination of eligibility made. In cases where additional information is needed, a referral from the Service Center to the local District Office for interview or investigation is appropriate. To revert to a mandatory interview in all adjustment cases, however, will result in lengthy processing delays.
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One of the Commission's most important and concrete recommendations involves English-language proficiency and civics testing. Specifically, the Commission recommended on page 55 of its Report ''that the federal government contract with one national and respected testing service to develop and give the English and civics tests to naturalization applicants.'' The proposed Bill's provisions with respect to testing largely reflects this recommendation, recognizing that with proper oversight the testing services can be properly administered by a private organization. the bill should go further, however, and require not only that a single outside entity administer, but also design and develop a standardized citizenship examination. The requirement in the Bill's current language requiring INS to develop such a test itself only adds to what the Commission identified in its structural reform recommendations as ''mission overload.'' INS is a governmental agency charged with administration ands enforcement of the immigration laws of the United States. It is not an educational testing service or academic institution with expertise in standardized testing and assessment. To ask it to do so will further add to a weight of responsibility that is already in excess of what any one agency can handle. ''Such a system is set up for failure, and, with such failure, further loss of public confidence in the immigration system.'' Instead, having one organization under contract pursuant to strict government contracting rules and procedures for competitive bidding should assist the government to substantially improve its oversight of English-language and civics testing. Moreover, development of a standardized citizenship test by a competent, professional authority will ensure more reliable and consistent results.
Although having an admirable purpose, the bill's recommendations with regard to fraud or misrepresentation in testing may introduce unintended loopholes for unworthy applicants while delaying the process for deserving applicants. As written, the proposed amendment does not distinguish between fraud or misrepresentation of the applicant and that of another individual. As is provided under current law, if the applicant is the source of the fraud or misrepresentation, the applicant should neither be permitted to retest, nor to become a citizen at all. If, on the other hand, the fraud or misrepresentation comes from another source, the applicant should be retested on an expedited basis in order to avoid undue delay. For example, if test questions were leaked, but there were no reason to believe that a particular applicant had such information prior to the test, it may be appropriate to order a retest, but the applicant should not be penalized by being forced to wait.
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The bill's proposals with regard to lost or stolen green cards, with minor exceptions, appear to pose minimal inconvenience or burden on residents and may marginally reduce the problem of green card fraud. But we should not expect too much. The bill's proposed fine for an alien who fails to report the loss, theft or destruction of his green card within seven days supplements current penalties for fraud. Although perhaps acting as a deterrent to fraud, current law does little to assist in the recovery of a lost or stolen green card. The only way for the INS to stop such a card from reaching the black market is to learn quickly of the theft or loss or to physically recover it upon expiration or naturalization of the holder. Because the theft or loss of the card itself is not necessarily the fault of the alien to whom the card belongs, the proposed fine is appropriately small. But it poses virtually no additional deterrent to the person who is intent on making profit on the card.
The requirement that an alien must turn in his or her green card to receive a naturalization certificate also is a measured response. However, in order to limit the cases in which a deserving applicant would be subjected to potentially lengthy delays, the bill includes a reasonable cap on the amount of time the INS has to investigate an affidavit of loss, theft or destruction.
The clarification of the legal definition of what constitutes a material fact will assist adjudicators in the proper administration of our immigration laws particularly in light of imprecise judicial guidance. While I agree in principal with the standard articulated in Justice Scalia's plurality opinion in Kungys v. United States, the variations on that standard expressed in the case's multiple concurring opinions can only leave government adjudicators confused and hesitant in making decisions. The Bill's attempt to resolve that confusion for adjudicators and courts alike is welcome.
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Generally, under Kungys, the test for whether a concealment or misrepresentation is material for purposes of denaturalization under the Act is whether it can be shown by clear, unequivocal, and convincing evidence to have been predictably capable—or, have had a ''natural tendency''—of influencing the INS' original decision to grant citizenship. Regrettably, however, language in a concurring opinion goes further and would require that there be a direct causal relationship between the facts underlying the misrepresentation and the actual grant or denial of citizenship. This standard, if adopted, would effectively require INS to prove in court that a particular misrepresentation or concealment related only to facts that would have disqualified the applicant from naturalization. A misrepresentation alone—no matter how serious—would never be sufficient by itself to warrant denaturalization, a result clearly inconsistent with the clear language of the statute. The proposed amendment would remove much of this uncertainty from INS and Federal Courts in making denaturalization decisions.
Similarly, creating a rebuttable presumption of willfulness would appropriately place the burden of disproving intent to misrepresent or conceal on the applicant. The concepts of ''concealment'' and ''misrepresentation'' embodied in the current law already carry with them a connotation of purposeful action or inaction. In any event, willfulness is frequently inferred in the law through an individual's conduct, and this application of that practice would appear appropriate.
Finally, requiring the Attorney General to oversee INS' compliance with the requirements of the bill and to report annually to Congress for a four-year period are critical transitional responsibilities. With such oversight, the government can ensure that the rules governing consideration of naturalization applications are conducted in a consistent, fair, and accurate manner.
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But here the proposed bill falls short. To serve the other goal of the naturalization program, expeditious processing of the applications of worthy individuals, Congress should consider adopting specific goals or guidelines for the amount of time an individual must wait from filing his or her application for naturalization and being sworn in as a new citizen. Recent anecdotal evidence suggest that, in some jurisdictions, as much as two to three years may pass between the filing of a naturalization application and the interview, and another year from the interview until the successful applicant is sworn in as a citizen. Although the naturalization process inherently takes time to satisfy critical preconditions such as the background and fingerprint checks, and we have learned what can happen if corners are cut in making these inquiries, four years from application to citizenship is too long. The five-year residency period was established to ensure adequate time had passed before becoming a citizen. Applicants should not be forced to wait nearly twice the statutory period to become citizens.
Among the possible methods for easing the backlog of applications recommended by the Commission is automation of the application procedure. The INS projected that the number of naturalization applicants projected for fiscal year 1997 and each of the subsequent few years would exceed 1.8 million. Yet, the INS and FBI rely on paper rather than electronic files. This system is not only inefficient and expensive, but also carries inherent risk of permanent loss or misplacement of records. Moreover, this system prevents the INS from being able to provide accurate data on the number of recently-naturalized citizens who had undergone a full background investigation. To alleviate this problem, Congress should continue to provide funding for the development of a state-of-the-art automated system for storage and retrieval of applicant-related information.
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I would like to offer one final thought on the broad topic of naturalization reform. There is no question that the Citizenship USA program was far more than merely a political or public relations catastrophe. The results of that program were simply unacceptable and to its credit the Justice Department has taken decisive action to address the deficiencies in the system subsequently exposed.
But there was a political cost as well because the public's confidence in the integrity of the system was further undermined as a result of Citizenship USA. Indeed, as cynical as it may be, significant segments of the public perceived the whole program to be motivated by election year politics and the Democratic Party's desire to pad voting rolls with new citizens to its advantage. But the Republican response has provoked an equally cynical perception that it was exploiting the catastrophe for political gain and that it would continue to do so even by impeding the process for deserving naturalization applicants since a significant majority of them would be unlikely to vote Republican in any event. I would urge you then to prove the cynics wrong and work together to enact bipartisan legislation that accomplishes the dual objectives of reform identified by the Commission: Integrity and Efficiency.
And then show the new citizens who will benefit from your legislation that they have truly become Americans—go out and compete for their votes in the free marketplace of ideas! Thank you.
Mr. SMITH. Thank you, Mr. Hill.
I am going to recognize Mr. Watt before I get to my own questions because of his other commitment. Mr. Watt.
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Mr. WATT. I appreciate it, Mr. Chairman.
I do not think I will even ask any questions. I just want to compliment the three witnesses for the testimony that they have given. I think they have given some good ideas.
I hope that we will listen to what they are saying about the substance of the bill because there are some things that need to be improved in the part of the bill that is there that is addressed.
There is also a part of the bill dealing with efficiency that does not exist. I mean it ain't there. That is what I hear Mr. Hill here saying pretty loud and clear. We need to do both of those things.
If we are going to define integrity as both security and efficiency, then we have got to do more in this bill than deal with the security part of it. We need to deal with setting some timetables, some goals at least, for eliminating the backlog and putting some funding and mechanisms in place to do that also.
Then we can debate the merits or lack of merits of how far we go to give legislative definition to what we ought to be doing as opposed to regulatory definition of it. That can be debated.
I think this panel has just done a magnificent job of kind of weaving that all together.
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MR. SMITH. I would take that compliment and run. Thank you, Mr. Watt.
We have a vote going on, or it has been called. What I am going to ask is that if each member will limit themselves to 2 minutes. I will be able to get my questions in, and then we will be able to catch the vote and let the panel go. The Gentleman from Indiana, Mr. Pease, is recognized.
Mr. PEASE. Thank you, Mr. Chairman.
I, too, want to thank this panel; not to diminish at all the work of the former panel. As someone who is new in this work, I have spent a lot of my time in trying to learn the details of how all of this works.
It has been very helpful for me to have somebody remind us there is a bigger picture to all of this. I appreciate your testimony in that regard very much.
Mr. Estrada, you talked about a number of things, but one of the things that came to my mind in the course of your presentation was a concern that the way things are being done, for whatever reason, lack of resources or whatever agenda there might be, may be sending a wrong message to folks that are wanting to become American citizens.
That the end justifies the means. If your goal is to be a citizen, whatever it takes to get there, either if we within the agency or as an applicant, may be the message we are sending, which appears to me especially in these times that we are talking about (the importance of the rule of law), is precisely the wrong message to be sending.
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Can you expand on that a bit or did I understand you correctly?
Mr. ESTRADA. Well, if I did not say it, I associate my self with your interpretation. Clearly as you look at the gamut of immigration issues, it is important from the outset to understand that the entire system and the entire process is about having people gain entry into the polity.
Since the earliest discussions about this issue, say, for example, at the Constitutional Convention where Governor Morris talked the significance of making decisions as to who will and will not be a member of the polity; decisions that are made, you know, by other organizations all of the time.
This is something that is absolutely essential. You are sending a message to the people based upon what you allow to take place.
So, that is why I think that having a system that affords people the opportunity to become full members of the polity while, at the same time, adhering to the legal standards that the law provides for is so important.
It has to be a question of even-handedness. You are sending a message if you do not do that; the wrong message.
Mr. PEASE. Thank you very much.
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Thank you, Mr. Chairman.
Mr. SMITH. Thank you, Mr. Pease. Mr. Berman.
Mr. BERMAN. Thank you, Mr. Chairman.
I join my colleagues in welcoming your testimony and the tenor of it. Some of these issues get more complicated than they seem. Let us take this issue of deportability.
As a general principle, it certainly seems to be reasonable to take the position that no one should be able to be naturalized if they are deportable.
Then I start by asking, what does deportable mean? Is every legal immigrant in some sense deportable? Is it a clearly defined concept?
If someone has received what used to be called suspension of deportation, in other words, an immigration officer concluded that they should not, even though technically they could be deported, it would be wrong to deport them.
Should that person, because they are deportable, be barred for life, ever, no matter what standards they meet? I share your feeling that we want to maintain and maybe even strengthen the standards for citizenship.
That in this debate we went on all day yesterday about unifying concepts as concepts for citizenship and acceptance of the privileges and obligations should be the most unifying concept of all. In other words, working out the specifics of these things are frequently different.
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You have already pointed otu one aspect of this; this ten-year good and moral character. If it is applied for someone who came here 6 years ago as an assylee or a refugee who now wants to apply for citizenship, and perhaps they were arrested ostensibly on serious criminal charges, but in fact because of their political views or conduct, we want some discretion with INS to look at that.
We want some carve-out in the legislation that recognizes that. There are a lot of areas that this legislation goes to, at least on the surface in its general principle, that seem good, but you need to tweak it a lot.
I did not take your testimony to be inconsistent with going through that process, even as you supported certain general principles in the legislation. The other thing you have is your oath that you propose in your commission.
It is a very interesting oath. But the one provision of it that says, I hereby renounce under oath, all former political allegiances, how does that fit in with the concept of dual citizenship; Mexico saying that you can stay a citizen of Mexico, once you become a citizen of the U.S., and a number of other countries who have these applications?
I used my 2 minutes for the question.
Mr. SMITH. No fair to ask that question after the time has expired, Mr. Pease. Can we get a quick answer?
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Mr. HILL. If I can just address the last part of that. If you read the body of work that this commission put together over the last several years, you will find that there are not too many issues that we punted on, but that is one of them. The issue of dual citizenship; we could not come to agreement on that particular issue. Nevertheless, we think it absolutely important, I think unanimously, that at least a formal oath or affirmation renouncing citizenship and swearing allegiance solely to the United States is absolutely essential.
Mr. SMITH. Thank you, Mr. Hill. Thank you, Mr. Pease.
Before our Members leave, I am going to ask questions a little bit out of order. I have questions for each witness. I would like for Mr. Watt in particular to hear the answer to this question that I would like to ask Mr. Hill.
Would you address the issue of denaturalization based on material misrepresentations?
Mr. HILL. I will try to address it quickly, if I can, but recognize that within the firm, we are sort of broken down to litigators and''everyone else''or transactional lawyers. I am in the ''everyone else'' category.
I am not a trial lawyer or a litigator. However, and actually reading the Kungys decision is almost as complicated as reading the statute. I believe the guidance given by the courts has been confusing, even in Kungys which tried very hard to clarify the issue; and generally I agree with Justice Scalia's approach.
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But it is confusing and difficult for adjudicators trying to implement the materiality definition. The proposed statute's approach is very appropriate.
The reason I say that is if you read Justice Steven's concurring opinion in the Kungys decision, it would appear to reflect a fairly widespread view that the issue of materiality, must go to underlying facts that would cause a decision of ineligibility to be reached. That is, lying in and of itself would never be sufficient to denaturalize. That goes counter to the very clear language of the statute which says specifically that one can be denaturalized if they had originally procured citizenship illegally, or made a material misrepresentation or concealed facts. That interpretation of materiality, in my mind, is erroneous and worse, it is confusing to adjudicators.
Mr. SMITH. Thank you, Mr. Hill.
I would ask the Members to go on and vote. I am going to ask another question or two and I do not want to keep them.
Mr. Estrada, you mentioned that the naturalization system has been affected by mass immigration. As we both know, for the first 90 years of this country's history, immigration levels were a little over 400,000. Since 1991, they have been almost one million per year. In what way is the naturalization system impacted by that unforeseen, unpredicted, but now indefinite level of immigration?
Mr. Estrada, well I think in the most logical, and common sense, and basic way, if you have a substantial increase in the number of new comers to the country.
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If you have certain events taking place that lead them to want to naturalize at a far greater level, then you are going to have a greater impact on the naturalization system at some point. That is just a very common sense answer.
Mr. SMITH. Mr. Estrada, thank you.
I guess I am not going to be able to delay any longer or I will miss this vote. Let me say to you that I appreciate what you have outlined in your testimony about the goals of naturalization. I think those are goals that everybody can support. Mr. Hill, as far as the citizenship test being standardized, I appreciated particularly your comments on that. Mr. Teitelbaum, I am not going to be able to ask you about the testing provisions as I had hoped to. You did cover the loss of green cards in your subsequent testimony.
Thank you all, again, for being here. We will recess just until this vote is over, then we will come back for our last panel. Thank you all again.
[Recess.]
Mr. SMITH. This subcommittee will reconvene.
We welcome our third panel and final witnesses today. Ms. Rosemary Jenks, Senior Fellow, Center for Immigration Studies, and Mr. Mark Hetfield, Project Coordinator, Hebrew Immigrant Aid Society.
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Thank you for your patience. I am sorry we had to vote, but better now than never. Ms. Jenks, if you will proceed.
STATEMENT OF ROSEMARY JENKS, CENTER FOR IMMIGRATION STUDIES
Ms. JENKS. Mr. Chairman and Members of the subcommittee, I am Rosemary Jenks, a Senior Fellow at the Center for Immigration Studies.
I appreciate the opportunity to appear before you again to discuss the naturalization process. Because the center is a non-advocacy organization, it neither endorses nor opposes any particular legislative proposal.
The focus of my statement is the general need for reform of the naturalization process and the effect that H.R. 2837 would have on meeting that need.
Over the past year and a half, Congressional investigations and the independent audits of the naturalization process have found that processing errors, lack of adequate training, and in many cases, the blatant disregard of eligibility requirements resulted in thousands of statutorily ineligible criminal aliens, along with tens of thousands of potentially ineligible aliens, being naturalized over a 13-month period in 1995 and 1996.
These reports have outraged the American people and justifiably so. What many Americans do not realize, however, is that most of the underlying problems with the naturalization process have existed for years. Since the fall of 1996, the INS has made several administrative changes in the naturalization process.
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In my view, however, the longstanding nature of many of these weaknesses underlines the need for statutory reform. Statutory reforms send a clear message to INS employees that the rules have changed permanently, and that they may be held accountable if they fail to enforce those rules; and to the American public and prospective citizens, that this Congress will not tolerate the devaluation of U.S. citizenship that results from lax enforcement of the eligibility requirements.
Most of the provisions in H.R. 2837 either codify already existing INS regulations or are common sense measures that should be fairly non-controversial.
You may remember that I appeared before this subcommittee last April to recommend changes to the naturalization process.
One of my concerns was that the INS is unable to ensure the integrity of those parts of the naturalization process that it delegates to outside entities, such as fingerprinting and citizenship testing. H.R. 2837 includes provisions which I believe would adequately ensure the integrity of both the fingerprinting and the citizenship testing programs, while still allowing the INS to contract out some of this work.
The two sections of the bill that I assume will generate the most controversy are section 3 and parts of section 9. Section 3 doubles the period during which a naturalization applicant must show that he or she is a person of good moral character, I would point out that current law does, not in fact, limit the good moral character period to 5 years, but rather establishes 5 years as the minimum period during which an applicant must show good moral character.
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Moreover, it is my understanding that this provision would not require the INS to investigate an applicant's criminal history in the country of origin if such applicant had resided in the United States for less than 10 years. Rather, it would mean that any crimes committed by the applicant during the 10-year period, which come to the attention of the FBI or the INS, would be taken into consideration in determining eligibility for naturalization. Therefore, this provision neither places an additional burden on INS or FBI investigators, nor requires anything that is not allowed under current law.
Section 9 of the bill establishes a rebuttable presumption that a naturalization applicant who concealed or misrepresented a material fact did so willfully, and it extends from 2 years to 5 the statute of limitations for administrative denaturalization.
Because current law does not clarify the burden of proof in establishing willful concealment or misrepresentation, it likely would be difficult for the INS to revoke administratively the citizenship of all those who failed to provide complete and accurate information on their applications during the Citizenship U.S.A. program.
I would argue that a rebuttable presumption of willfulness is reasonable. It is difficult for me to conceive of circumstances in which an individual would be unaware of or have forgotten being arrested, charged with a crime, convicted, or placed in removal proceedings, or failing to pay income taxes, or child support, et cetera.
I believe that events of the past year and a half justify the extension of the statute of limitations on administrative denaturalization. For those wrongly naturalized in late 1995, the current 2-year statute of limitations has already expired. Such individuals, against whom the INS has not initiated administrative denaturalization proceedings, have successfully defrauded the system, unless the decision is made to initiate the more costly and drawn out judicial denaturalization proceedings.
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I also recommended three general reforms of the naturalization process last April, including: one, that the INS update and integrate its computer systems to facilitate status checks and ease the problems the agency has with locating paper files on a timely basis; two, that it prioritize its electronic Fingerprint Pilot Program and expand the use of electronic fingerprint scanners; and three, that it ensure that its employees are properly trained in all aspects of the naturalization process, including eligibility requirements, paperwork processing, computer status checks, and interview techniques.
While these issues are not addressed in H.R. 2837, they were addressed in the fiscal year 1998 Commerce, Justice, and State Appropriations Act.
It is my view that the provisions in H.R. 2837, when combined with the provisions of the appropriations act, should meet the needs for reform of the naturalization process, and ensure that the results of the Citizenship U.S.A. program are never repeated. Thank you.
[The prepared statement of Rosemary Jenks follows:]
PREPARED STATEMENT OF ROSEMARY JENKS, CENTER FOR IMMIGRATION STUDIES
Mr. Chairman and Members of the Subcommittee, I am Rosemary Jenks, a Senior Fellow at the Center for Immigration Studies. The Center is a non-profit, non-advocacy research institution that studies immigration policy and its impact on the United States. I appreciate the opportunity to appear before you again to discuss the naturalization process. Because the Center is a non-advocacy organization, it neither endorses nor opposes any particular legislative proposal. Thus, the focus of my statement is the general need for reform of the naturalization process and the effect that H.R. 2837, the Naturalization Reform Act of 1998, would have on meeting that need.
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United States citizenship is the most valuable and the most cherished privilege our nation can bestow upon an individual. It carries with it the right to travel freely, to hold certain public offices and to petition for the immigration of family members. Most importantly, however, it carries with it the right, and the responsibility, to take part in shaping and securing the future of this country by voting for elected officials at all levels of government.
Over the past year and a half, congressional investigations and independent audits of the naturalization process have found that processing errors, lack of adequate training and, in many cases, the blatant disregard of eligibility requirements resulted in thousands of statutorily ineligible criminal aliens, along with tens of thousands of potentially ineligible aliens, being naturalized over a 13-month period in 1995 and 1996. These reports have outraged the American people, and justifiably so.
What many Americans do not realize, however, is that most of the underlying problems with the naturalization process have existed for years. The General Accounting Office, for example, reported in February of 1994 that the INS process for weeding out criminals was badly flawed. Unfortunately, the INS failed to correct those problems until after the Citizenship USA program had seriously exacerbated them and brought them to the public's attention.
Since the fall of 1996, the INS has made several administrative changes in the naturalization process. These include requirements that INS officials review fingerprint cards to ensure that they are complete and legible before they are submitted to the FBI; that no applicant be naturalized until the INS receives a definitive response from the FBI regarding the criminal history background check; that field offices research any incomplete or inconclusive criminal history data provided by the FBI; that all decisions to approve applicants with a criminal history be reviewed by a supervisory officer; and that INS officials verify that applicants are not in removal proceedings or subject to removal orders. These requirements, if strictly enforced, should solve many of the systemic flaws in the process.
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In my view, however, the long-standing nature of many of the weaknesses in the naturalization process underlines the need for statutory reform. Unlike administrative reforms, which could be undercut by future Commissioners or administrations, statutory reforms send a clear message to all INS employees that the rules have changed permanently and that they may be held accountable if they fail to enforce those rules. Statutory reforms have the added benefit of sending a message to the American public and prospective U.S. citizens that this Congress will not tolerate the devaluation of U.S. citizenship that results from lax enforcement of the eligibility requirements for naturalization.
I believe that H.R. 2837 would satisfy the need for statutory reforms and send the right message both to the INS and to the American people. It is comprised largely of common-sense provisions that should be fairly non-controversial. For example:
Section 2 of the bill bars from naturalization aliens who are in removal proceedings, subject to an outstanding removal order, or deportable for criminal violations. Current law already prohibits the INS from naturalizing aliens who are in removal proceedings or subject to an outstanding removal order (Sec. 318 of the INA). Common sense would dictate that aliens who are deportable for committing crimes, but have not yet had Orders to Show Cause issued against them simply because their criminal convictions did not come to the attention of the INS prior to their application for naturalization, should not be eligible for U.S. citizenship.
Section 4 requires the INS to conduct an investigation of an applicant's criminal history, including criminal offenses listed on the FBI rap sheet, criminal offenses listed in INS databases, and any other criminal offenses of which the INS has knowledge. One of the biggest obstacles that auditors of the Citizenship USA program had to overcome was the fact that the FBI rap sheets often are incomplete and/or inconclusive. In many cases, the rap sheets list charges against an individual, but not whether the individual was actually convicted of those charges. Moreover, local police departments do not always notify the FBI of criminal convictions. This section of the bill, therefore, not only allows the INS to better enforce the prohibitions against naturalizing criminals and those lacking good moral character, it also serves to protect applicants who may have been charged with crimes, but later acquitted. I would also note that current law already requires the INS to conduct investigations of naturalization applicants' residential neighborhoods and business activities to verify good moral character and other eligibility requirements, unless such investigation is waived by the Attorney General (Sec. 335 of the INA). While clearly justifiable, this latter requirement is substantially more intrusive than the investigation requirement set out in H.R. 2837.
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Section 4 exempts from the FBI fingerprint check applicants who are physically unable to provide legible fingerprints. An alien who is unable to provide legible fingerprints because his or her prints are too fine or are worn down should not be barred from naturalization for that reason alone. A criminal history check based on a person's name is less definitive than a fingerprint check, but this exception would apply only to a tiny fraction of applicants, and so would not damage the integrity of the overall process.
Section 7 directs the Attorney General to develop a master list of questions to be used to test English ability and knowledge of U.S. history and civics. This standardization of the citizenship test would make it more fair and less dependent on the moods or biases of test administrators. I would hope, however, that the Attorney General would consult with a variety of government and nongovernment sources in developing such a list, since the INS has been accused in recent years of ''watering down'' the citizenship test.
Section 8 establishes a civil penalty for failing to report the loss, theft or destruction of resident alien cards. Considering the huge fraudulent document industry in this country, it seems reasonable to require aliens to report missing ''green cards'' as soon as they are discovered missing. This provision also should make it easier to identify aliens who are using stolen or lost ''green cards,'' since the INS will have a record of those cards.
You may remember that I appeared before this Subcommittee last April to recommend changes to the naturalization process. One of the concerns I voiced was that the INS is unable to ensure the integrity of those parts of the naturalization process that it delegates to outside entities, such as fingerprinting and citizenship testing.
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The FY 1998 Commerce, Justice and State Appropriations Act, passed last fall, specifies that the INS may not use any of its funding to process fingerprint cards prepared by any entity other than an office of the INS, state and local law enforcement agencies, or the Departments of State and Defense. Section 4 of H.R. 2837 includes a similar provision. It would allow any of these entities to prepare fingerprints, but adds that the INS may hire a single contractor to conduct fingerprinting services at INS facilities and under the supervision of INS personnel.
H.R. 2837 also addresses the ongoing problems with fraud in the citizenship testing program. Section 7 requires that all citizenship tests be administered by the INS or by personnel provided by a single contractor hired by the INS to administer the tests at INS facilities and under the supervision of INS personnel.
I believe that these two provisions would adequately ensure the integrity of both the fingerprinting and the citizenship testing programs, while still allowing the INS to contract out some of this work, thus easing the workload of already-overburdened INS employees.
I noted earlier that most of the provisions in H.R. 2837 should be non-controversial. The two sections of the bill that I assume will generate the most controversy are Section 3 and parts of Section 9. Section 3 doubles the period during which a naturalization applicant must show that he or she has been a person of good moral character. Under current law, this period includes the five years immediately preceding an application for naturalization; H.R. 2837 extends it to the ten years immediately preceding an application. I would point out, however, that current law does not, in fact, limit the good moral character period to five years, but rather establishes five years as the minimum period during which an applicant must show good moral character. The law states that:
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In determining whether the applicant has sustained the burden of establishing good moral character . . . the Attorney General shall not be limited to the applicant's conduct during the five years preceding the filing of the application, but may take into consideration . . . the applicant's conduct and acts at any time prior to that period. (Sec. 316(e) of the INA)
Moreover, it is my understanding that this provision would not require the INS to investigate an applicant's criminal history in the country of origin, if such applicant had resided in the United States for less than 10 years. Rather, it would mean that any crimes committed by the applicant during the 10-year period which come to the attention of the FBI or the INS would be taken into consideration in determining eligibility for naturalization—regardless of whether the crimes were committed here or abroad. I would guess that only the most serious crimes committed abroad (e.g., those where extradition is sought) would ever come to the attention of the FBI or the INS. Therefore, this provision neither places an additional burden on INS or FBI investigators, nor requires anything that is not allowed under current law. In this light, Section 3 of H.R. 2837 does not seem as controversial as at first glance.
Section 9 of the bill deals with the revocation of citizenship. Specifically, it establishes a rebuttable presumption that a naturalization applicant who concealed or misrepresented a material fact did so willfully, and it extends from two years to five the statute of limitations for administrative denaturalization. I would guess that these provisions were included in H.R. 2837 in response to: 1) the INS's hesitation in attempting to denaturalize persons who perjured themselves by failing to report criminal convictions or immigration violations, even though such convictions or violations may not have made them statutorily ineligible for naturalization; and 2) the extremely slow rate of progress of the INS in denaturalizing the thousands of people who were wrongly naturalized during the Citizenship USA program.
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Because current law does not clarify the burden of proof in establishing ''willful'' concealment or misrepresentation, it likely would be difficult for the INS to revoke administratively the citizenship of all those who failed to provide complete and accurate information on their applications. The provision in H.R. 2837 clearly would facilitate revocation of citizenship on the basis of perjury. I would argue that such a rebuttable presumption of willfulness is reasonable—it is difficult for me to conceive of circumstances in which an individual would be unaware of or have forgotten being arrested, charged with a crime, convicted, or placed in removal proceedings, or failing to pay income taxes or child support, etc.
As for the extension of the statute of limitations on administrative denaturalization, I would hope that, in the vast majority of cases, the INS would act to revoke citizenship within two years. However, events of the past year and a half have demonstrated that the INS is unable to move quickly on denaturalization cases when it has a backlog of thousands of such cases. For those wrongly naturalized in late 1995, the current two-year statute of limitations has already expired. Such individuals against whom the INS has not initiated administrative denaturalization proceedings have successfully defrauded the system, unless a decision is made to initiate the more costly and drawn-out judicial denaturalization proceedings.
The provisions in H.R. 2837 to which I have not referred specifically codify already-existing INS policies and regulations. These provisions should not be controversial, as they are already being implemented.
In addition to the concerns I voiced last April regarding the integrity of the fingerprinting and citizenship testing programs, I also recommended three general reforms in the naturalization process. These were:
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1. That the INS update and integrate its computer systems to facilitate status checks and ease the problems the agency has with locating paper files on a timely basis;
2. That the INS prioritize its electronic fingerprint pilot program and expand the use of electronic fingerprint scanners; and
3. That the INS ensure that its employees are properly trained in all aspects of the naturalization process, including eligibility requirements, paperwork processing, computer status checks and interview techniques.
While these issues are not addressed in H.R. 2837, they were addressed in the FY 1998 Commerce, Justice and State Appropriations Act. Specifically to address problems in the naturalization process, that Act directs the INS to reallocate funds from the examinations fees account to provide the following:
an additional $11.1 million to improve records infrastructure, $4.8 million to support records contracts in district offices, $5.2 million to modify the CLAIMS computer system to support naturalization case processing, and $1.25 million to enhance the Central Index System;
an additional $16.8 million for the purchase and installation of electronic fingerprint scanners, with a total increase of $67 million to cover all fingerprinting requirements; and
an additional $11 million for quality assurance staff to oversee processing of naturalization applications and to provide for continued auditing of procedures, and almost $33.2 million to provide for uniform paperwork processing through the Direct Mail system.
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It is my view that the provisions in H.R. 2837, when combined with the provisions of this Appropriations Act, should meet the needs for reform of the naturalization process and ensure that the results of the Citizenship USA program are never repeated.
I would be happy to answer any questions you may have.
Mr. SMITH. Perfect timing. Thank you, Ms. Jenks. Mr. Hetfield.
STATEMENT OF MARK HETFIELD, PROJECT COORDINATOR, HEBREW IMMIGRANT AID SOCIETY
Mr. HETFIELD. Mr. Chairman and Members of the subcommittee, I am honored to be here today in my capacity as an attorney at the Hebrew Immigrant Aid Society, HIAS, which, since 1880, has been the worldwide arm of the American Jewish Community for the rescue, relocation, family reunification, and resettlement of refugees and other migrants.
I also serve as co-chair of the National Citizenship Coalition and am one of non-governmental representatives on the Management Advisory Team, which is advising Coopers and Lybrand on their proposed redesign of the naturalization program.
In 1993, within the framework of the United States Refugee Program, HIAS rescued 36,561 refugees from intolerant regimes. These refugees, who came to this country so they could lead lives without fear of persecution because of their beliefs, are eligible to naturalize this year. HIAS assists many of them with the naturalization process. They are anxious to prove their allegiance to the United States by becoming citizens. When they apply, however, INS tells them that they have to wait in the backlog with 1.7 million other applicants for anywhere from one to 3 years.
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This backlog causes terrible anxiety among all of HIAS' clients, but it is worst among our elderly clients, who fear they will literally die in the backlog and will never fulfill their dreams of becoming U.S. citizens. This is no way to welcome our new citizens. HIAS' concern for these applicants motivates my testimony today.
There are, however, a few pieces of good news. First, the Office of Naturalization Operations at INS has already made some progress in meeting its commitment to improving INS' customer service record.
We hope that this subcommittee will work with INS on meeting this commitment and on supporting the related initiative to redesign the naturalization process.
The second piece of good news is that, as KPMG Pete Marwick confirmed in a December audit, and due largely to the vigilant oversight of this and other Congressional committees, INS has now taken effective action to address serious deficiencies in the integrity of the naturalization process.
We would note, however, that some confusion has resulted from another KPMG report released last month. This snapshot audit of naturalization files from 1996 reflected deficiencies in INS' quality assurance procedures.
However, it cannot be over-emphasized that this was old news. The December audit established that these deficiencies have been corrected.
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The subject of today's hearing, H.R. 2837, seeks to address the integrity problems, which independent auditors have concluded have already been effectively solved by INS.
We cannot recall any instance in which the recent problems that have plagued the naturalization process were blamed on statutory deficiencies. Rather, they were all management problems; all of which are being aggressively addressed.
The bill, however, is silent on the massive backlog, as well as on the fairness and customer service issues that continue to plague naturalization.
Nor does the bill make any positive statement about the importance of welcoming new citizens into our polity. Nor does the bill do anything to facilitate the redesign of the naturalization process.
Indeed, we are gravely concerned that if H.R. 2837 is enacted, it will not further enhance the integrity of the process, but could instead make the process less welcoming and more inefficient.
As has been said throughout this hearing, much of the bill is in fact redundant of existing regulations and policies. So, I will concentrate on those parts of the bill that are not in fact redundant.
One of these is the good moral character requirement. I should start by noting that the good moral character requirement has been 5 years since 1802.
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This, in and by itself, is not grounds for not changing it, but it is grounds for having us pause to think about whether it is really necessary to change a 196-year-old law.
Ms. Jenks was right that INS can already look beyond the 5-year period to ascertain whether or not an applicant is of good moral character.
They can look at acts that occurred prior to the 5-year period and try to ascertain whether or not the applicant has reformed himself or herself in the last 5 years.
This is not just a regulation, but this is actually in the INA already. So, in our opinion, it is not necessary to amend the INA to take that into account.
I would also like to say that throughout the scandals that have occurred in the citizenship program over the last few years, never was it said that they were occurring because the good moral character period was too short.
INS, again, has always had the authority to look beyond the 5-year period. It is also worth noting that murderers and aggravated felons are already barred for life from naturalizing.
Therefore, current law already goes beyond the 5-year period. There are a few things in H.R. 2837 regarding good moral character, which go beyond the current law which seriously concern us.
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For example, in our opinion, if an applicant committed a bad act 9 years ago, an act which was indicative of poor moral character, and has been Mother Theresa ever since that time, under H.R. 2837, in our analysis, that applicant would not be able to naturalize.
H.R. 2837 says the good moral character period will be 10 years, no if's, and's, or but's. Likewise, for the same reason, any act that was committed in the applicant's country of origin within the last 10 years could be counted against the applicant or would have to be counted against the applicant.
In many countries, especially those from which asylees and refugees have fled, applicants may have been charged with non-political crimes for apolitical offenses.
This, again, concerns us. How are you going to prove to INS that in fact this conviction was politically motivated and was not indicative of poor moral character.
Another problem with this provision is it would create an onerous burden on applicants. Right now, many INS districts require that applicants submit 5 year's worth of tax returns to establish good moral character.
Presumably, this would change that to 10 years of income tax returns and require production of records dating back 10 years for all sorts of things that could be indicative of bad moral character.
Again, it is just a burden that is too onerous on applicants.
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The deportability provision: largely, the provision which says that an applicant who is deportable shall not be naturalized is redundant of existing regulations and law. However, I should note that under H.R. 2837, if an applicant has failed to file a change of address card in a timely fashion, he would be deportable and he could not be naturalized. This is difficult to believe, but I have checked it four times and it is true.
A change of address card violation does render an applicant deportable and, under H.R. 2837, would not allow him to naturalize.
The provision concerning lost, stolen, and destroyed green cards: This provision is also troubling to us. I will give you an example since this provision has already been talked about.
Let's say somebody is mugged on the subway, their wallet is taken, and the green card is in their wallet, and they have already waited 18 months for their naturalization interview. Subsequently, he is approved to naturalize.
He says to the INS officer, look, I do not have my green card. I was mugged on the subway. It was taken. Here is the police report. Under H.R. 2837, the applicant would have to submit an affidavit explaining what happened.
Under H.R. 2837 his swearing in would be delayed by no less than 30 days while INS decided whether or not it wanted to investigate the loss of his green card, even though he already has the police report on hand to show that in fact he was mugged and his green card was taken at that time.
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Finally, the denaturalization provisions are probably the most alarming to us. There are three problems I think that concern us the most. The first of this is raising the period from 2 years to 5 years.
The second of this is allowing the INS to assume that any misrepresentation or inconsistency on an application was one of material fact.
The third is that the burden of proof is reversed by H.R. 2837. Under existing law, INS is required to prove that any misrepresentation, in order to denaturalize, was willful and intentional on the part of the applicant.
H.R. 2837 would reverse that burden of proof and would allow or would direct INS to presume that any misrepresentation was willful and intentional.
You can imagine what would happen if the IRS were able to presume that every inconsistency on your tax form was evidence of fraud, tax fraud, rather than just an innocent mistake.
We are also concerned that during naturalization interviews, many communication issues arise. The law is naturalization applicants have to speak and understand English in ordinary usage. INS English during interviews is not ordinary usage English.
As a result, there are often communication problems during interviews. To presume that something that was not conveyed clearly during an interview was a deliberate misrepresentation, and requiring the applicant to prove that it was not a deliberate misrepresentation would be, again, a very onerous burden.
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Considering that citizenship is at stake, I think that it would be a little bit too onerous to put this burden on the applicant. The burden should remain with INS to establish that a misrepresentation or an inconsistency in the applicant's file was made wilfully. The burden should not be put on the applicant.
In conclusion, through vigorous oversight, this subcommittee has already succeeded in correcting serious deficiencies that had called into question the integrity of the naturalization program. H.R. 2837 would undermine the success, however, by imposing unrealistic requirements on INS and on applicants.
In addition, the bill makes no statement on the importance of welcoming new citizens into our polity. Nor does H.R. 2837 address the massive backlog and customer service issues that continue to plague INS and the naturalization program.
We urge this subcommittee to use its oversight authority to work with INS on these issues rather than to pursue this highly problematic bill.
I would be happy to answer any questions that you may have.
[The prepared statement of Mark Hetfield follows:]
PREPARED STATEMENT OF MARK HETFIELD, PROJECT COORDINATOR, HEBREW IMMIGRANT AID SOCIETY
INTRODUCTION
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Mr. Chairman and Members of the Subcommittee on Immigration and Claims, I am honored to be here today in my capacity as an attorney at the Hebrew Immigrant Aid Society (HIAS), which since 1880 has been the worldwide arm of the American Jewish community for the rescue, relocation, family reunification and resettlement of refugees and other migrants. I also serve as the Co-chair of the National Citizenship Coalition and am one of five non-governmental representatives on the Management Advisory Team, which is advising Coopers and Lybrand on their proposed redesign of the naturalization program.
In 1993, within the framework of the United States Refugee Program, HIAS rescued 36,561 refugees from intolerant regimes. These refugees, who came to this country so that they could lead lives without fear of persecution because of their beliefs, are eligible to naturalize this year. HIAS assists many of them with the naturalization process, and they are anxious to prove their allegiance to the United States by becoming citizens. When they apply, however, INS tells them that they have to wait with 1.7 million other applicants in a bureaucratic backlog for anywhere from one to three years. The backlog causes terrible anxiety for all of HIAS' clients. It is, however, the worst for the elderly, who fear they will die in the backlog, and will never fulfill their dreams of becoming United States citizens. This is no way to welcome our new citizens. HIAS' concern for these applicants motivates this testimony today.
There are, however, two pieces of good news. First, the new Office of Naturalization Operations at INS has already made some progress in meeting its commitment to improving INS' customer service record. We hope that this Subcommittee will work with INS on meeting this commitment, and on supporting the related initiative to redesign the naturalization program
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The second piece of good news is that, due largely to the vigilant oversight of this and other Congressional Committees, INS has taken effective action to address serious deficiencies in the integrity of the naturalization process. These included, inter alia, the naturalization of individuals without first documenting the completion of the required FBI fingerprint check. On December 16, 1997, KPMG Peat Marwick completed a full-scale audit and, applying a standard of ''zero tolerance'' for error, found that INS had ''greatly reduced the risk of incorrectly naturalizing an applicant.'' Of 4,000 randomly selected cases from the 24 INS offices that represent 85 percent of the naturalization workload, the audit found zero ''critical processing errors.'' The December audit provided a stark contrast to KPMG's random sampling of April 1997, which cited INS for widespread quality assurance deficiencies. Between April and December, INS clearly made major improvements to ensure the integrity of the naturalization program.
We would note that some confusion resulted from another KPMG report released last month. This snapshot audit of naturalization files from 1996 reflected deficiencies in INS' quality assurance procedures. However, it cannot be overemphasized that this was old news. The December audit established that these deficiencies have been corrected.
The subject of today's hearing, H.R. 2837, seeks to address the integrity problems which independent auditors have concluded have already been effectively solved by INS. In fact, we cannot recall any instance in which the recent problems that have plagued the naturalization process were blamed on statutory deficiencies. Rather, they were all management problems, all of which are now being addressed aggressively. The Bill, however, is silent on the massive backlog, as well as the fairness and customer service issues that continue to plague naturalization. Nor does the Bill make any positive statement about the importance of welcoming new citizens into U.S. civic life. Nor does the Bill do anything to facilitate the redesign of the naturalization process. Indeed, we are gravely concerned that, if H.R. 2837 is enacted, it will not further enhance the integrity of the process but will instead make the process less welcoming and more inefficient.
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Let me briefly outline some of our specific concerns about H.R. 2837.
An analysis of the major provisions of the Bill follows. My oral testimony will focus on those areas of the Bill over which we have the most concern, while my written testimony includes a brief analysis of each section of the Bill.
THE GOOD MORAL CHARACTER REQUIREMENT
H.R. 2837 would raise the good moral character period required of naturalization applicants to ten years.
Under current law, an applicant for naturalization must establish that (s)he has exhibited good moral character during the period of required continuous residence in the United States. This requirement has been in force since 1795. Moreover, the standard residence requirement and, hence, the period for good moral character, has been five years since 1802. For spouses of U.S. citizens and for members of the armed forces who have continuously served for three years or more, the required period of residence and good moral character is three years.
H.R. 2837 would change the good moral character period to ten years for all naturalization applicants. Such a drastic change to a law which has served our country well for more than two centuries should not be enacted without good reason.
Indeed, there is no good reason for changing the Good Moral Character Requirement, but there are plenty of good reasons not to change it.
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First, the recent ills of the citizenship program have not been attributed to the five-year good moral character requirement. Rather, these problems have been universally attributed to deficiencies in INS' procedures to enforce the good moral character requirement. And, as the recent KPMG Peat Marwick audit has pointed out, those deficiencies have been corrected.
Second, Section 101(f)(8) of the INA and 8 CFR 316.10 already direct INS officers to examine certain acts exhibiting bad moral character prior to the five-year period. For example, convicted murderers are prohibited from ever naturalizing, as are persons who were convicted of ''aggravated felonies'' after November 29, 1990. It is worth noting that the definition of ''aggravated felony'' has been so broadened that it can include crimes such as subway turnstile jumping, bad check-writing, and theft of cable television services for personal use.
In addition, Section 316(e) of the INA and 8 CFR 316.10(a)(2) already require INS officers to examine an applicant's misconduct which occurred prior to five years ago, and then ascertain whether the applicant can show evidence of reformation and subsequent good moral character throughout the five-year period. Under H.R. 2837, an individual who engaged in non-felonious misconduct between five and ten years ago could not be naturalized, even if (s)he has been a pillar of the community since that time. H.R. 2837 would tie INS' hands and leave the agency with no discretion to naturalize people who have conducted themselves in an exemplary fashion during the five-year residence period.
Raising the good moral character period to ten years will only serve to create bureaucratic barriers to aliens to prevent or delay their naturalization. Under H.R. 2837, INS will likely require all applicants to prove that any arrests prior to their immigration to the United States do not impugn their moral character. An applicant, who already has the burden to prove good moral character under 8 CFR 316.10(a), may therefore be required to obtain court dispositions from his/her country of origin. While this would be an onerous burden to all, it could pose particularly insurmountable difficulties to refugees and asylees, who could be required to request court dispositions from the repressive governments from which they fled. The problem presented by this scenario is compounded by the fact that political prisoners are often jailed on false charges for non-political crimes.
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Finally, since the applicant has the burden of proof to establish good moral character, requiring that an applicant proffer evidence dating back ten years would be an unprecedented and onerous burden.
In sum, H.R. 2837's proposal to raise the good moral character period to ten years would not give INS more power to prevent aliens of questionable moral character from naturalizing. On the contrary, it would severely limit INS' ''discretion,'' which Senate Immigration Subcommittee Chairman Spencer Abraham, quoted in an Anthony Lewis column in the New York Times on October 10, 1997, has urged them to use. Moreover, it would so increase the burden of proof for applicants that refugees, asylees, and other eligible legal immigrants would be further delayed or totally deterred from naturalizing.
DEPORTABILITY AND NATURALIZATION
Section Two of the H.R. 2837 purports to be a ''bar to naturalization for aliens deportable for crimes.'' However, aliens convicted of ''aggravated felonies'' are already barred from naturalizing for life. Likewise, under current law and regulations, no alien may be naturalized if, during the required residence period, (1) deportation proceedings are pending; (2) (s)he has already been found deportable by an immigration judge, (3) (s)he was previously deported from the United States; (4) (s)he committed a crime involving moral turpitude; (5) (s)he is suspected by the INS of being involved in the trafficking of a controlled substance; (6) (s)he has given false testimony for the purpose of gaining an immigration benefit; or (7) (s)he committed one of more than a dozen enumerated legal or moral transgressions during the residence period. See Section 101(f) of the Act, 8 CFR 316.10(a).
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The current law is more than sufficient to ensure that aliens who fall into any of the above categories will not be naturalized. It would be a challenge to name a criminal or ''immoral'' activity that does not already serve as a bar to naturalization. Indeed, much of Section 2 of H.R. 2837 is merely redundant of existing law, but would serve only to totally eliminate the limited discretion which INS retains on the good moral character issue.
Yet H.R. 2837 does add one additional ''crime'' which INS has overlooked in the past. Specifically, H.R. 2837 would forbid INS from naturalizing any immigrant who has not been timely in filing change-of-address cards with the Service. See S. 1382/HR 2837, Section 2 (1997), citing INA Section 237(a)(3)(A).
The shortcoming of this provision of H.R. 2837 speaks for itself, particularly given the INS' penchant for losing change-of-address cards. However, even if the change-of-address card provision were to be taken out of the Bill, Section 2 would still be troublesome. Rather than giving INS any additional powers, it would rob the agency of its already limited authority to exercise humanitarian discretion in favor of applicants. Moreover, it would basically lengthen naturalization interviews and turn them into deportation hearings, without giving INS officers any of the discretionary authority that is available to Immigration Judges in removal proceedings.
LOST/STOLEN/DESTROYED GREEN CARDS
Section 8 of the Bill would require anyone whose Resident Alien (''Green'') Card is lost, stolen or destroyed to report this loss within to the Attorney General within 7 days or face a civil penalty of $50. In addition, any permanent resident who wishes to receive a certificate of naturalization would first have to turn in his/her green card. This is already standard operating procedure at INS, and is already in section 338.3 of the regulations. Under H.R. 2837, however, if (s)he no longer is in possession of his/her green card, the person would have to submit an affidavit to the Attorney General explaining the loss and wait not less than 30 days, during which time the Attorney General may investigate the matter.
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This is ostensibly a provision to protect the integrity of green cards, the current version of which INS claims is virtually counterfeit-proof and unalterable. However, having a green card lost, stolen or destroyed is already a traumatic experience for immigrants, and asking INS to replace it can be equally traumatic. This provision would do nothing to deter such losses, and it is hard to imagine it would have any impact on any green card ''black market'' either. It would, however, create additional traumas and delays for applicants who have already been approved to naturalize, and are just waiting to take the oath.
ADMINISTRATIVE DENATURALIZATION PROCEEDINGS
Section 9 of H.R. 2837 seeks to make major changes to the law governing citizenship revocations. While the rest of the Bill aims at restricting the discretion of INS, the denaturalization provisions give INS a frightening and unprecedented level of authority which would be basically unchecked by due process.
According to the INS' interpretation of the Immigration Act of 1990, it now has the authority to revoke U.S. citizenship from individuals whom it naturalized in error. The INS did not issue regulations on this issue, however, until late in 1996, and the limits and due process requirements on administrative revocations of citizenship are not yet clear. Section 340(a) of the Immigration and Nationality Act, however, allows denaturalization when naturalization was ''illegally procured or was procured by concealment of a material fact or by willful misrepresentation.''
There is ample precedent for the judicial denaturalization of individuals with a disqualifying criminal conviction who were naturalized in error. However, the caselaw is much more complex concerning denaturalization on the grounds of misrepresentation while applying for naturalization. The Supreme Court has found (in Kungys v. U.S. (485 US 759 (1988)) that an individual may be (judicially) denaturalized if the Attorney General can show by clear, unequivocal and convincing evidence that the applicant gave false (oral) testimony with the intent of obtaining naturalization. In following this precedent, however, Courts have read in the additional requirement that false testimony may not be grounds for denaturalization unless it is also material to the application. (For example, see US v. Puerta, 982 F.2d 1297, 1301 (9th cir. 1992)).
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It is not yet clear how the courts will interpret INS' ability to denaturalize people on the basis of false testimony. H.R. 2837, however, seeks to ensure that due process concerns will not get in the way of stripping someone of citizenship.
First, caselaw now permits denaturalization on the basis of false testimony only when such testimony is, in fact, ''oral.'' Section 6(a)(3) of H.R. 2837 would address this requirement by requiring that the INS interviewing officer verify all information on the application. This will undoubtedly exacerbate the naturalization backlog, and hinder INS' efficiency, by lengthening the interview to make sure every mundane and inconsequential word on the application is verified through the applicant's oral testimony.
Second, as indicated above, in some cases courts have found that a misrepresentation must not only be done with the intent of obtaining naturalization, but that it must also be material to the applicant's claim to citizenship. Section 9(a)(2) of H.R. 2837 seeks to undermine this requirement by clarifying that a fact is not immaterial just because it ''would not, in and by itself, have required the Attorney General to deny the person's application for naturalization.''
Third, caselaw now requires that, in seeking to denaturalize on the grounds of false testimony, the INS must prove by ''clear and convincing evidence'' that the applicant falsified his/her testimony with the intent of obtaining naturalization. Section 9(b) of H.R. 2837 would totally reverse the burden of proof by directing INS to presume that any alleged concealment or misrepresentation of material fact was, in fact, willful. If the applicant does not prove otherwise (s)he will be denaturalized.
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While applicants must be able to read, write and speak words in ordinary usage in the English language, the arcane questions asked during INS interviews are not ''ordinary'' by any standards. This, combined with high levels of anxiety during INS interviews, can often lead to some communication problems during INS interviews. In addition, INS officers' notes of what occurred during the interview are, as a matter of necessity, sketchy at best. Under such circumstances, it would be dangerous and grossly unfair for INS to presume, as directed by H.R. 2837, that inconsistencies in an applicant's naturalization file were willful attempts to subvert the process.
Finally, while INS requires itself to commence administrative denaturalization proceedings within two years after naturalization, H.R. 2837 would allow INS to wait up to five years prior to commencing denaturalization proceedings. (There is no time limit on judicial revocations of naturalization).
Under H.R. 2837, an inconsistency in a new citizen's INS files could spark non-judicial denaturalization proceedings for up to five years after the oath of allegiance. To avoid losing US citizenship, a person would have to prove that the inconsistency, even if unrelated to the naturalization eligibility criteria, was not made with the intention of falsely procuring citizenship. In other words, the new citizen would face a presumption of guilt and a loss of citizenship unless (s)he can prove his/her innocence to his/her accuser. Such a presumption of guilt, when a matter as important as citizenship is at stake would be fundamentally un-American.
TESTING PROVISIONS
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Currently, a naturalization applicant may demonstrate the required knowledge of civics, and the ability to read and write English, either at the time of the INS interview or, at the option of the applicant, prior to the interview through a standardized test administered by a testing entity certified by INS.
H.R. 2837, however, would discontinue the option of satisfying the examination requirements through a test that is offered by certified entities. The Bill would limit applicants to being tested by either an INS officer or by a single nationwide contractor at an INS facility where INS personnel are stationed at all hours of operation.
The testing provisions of H.R. 2837 undoubtedly arise out of concern over recent reports of cheating at some of the certified testing facilities, reports which the Justice Department has acted on by closing down a number of suspicious sites, re-testing applicants who utilized such sites, and filing criminal charges against certain testing entities implicated in such cheating.
We absolutely share the concern that abuses by certain testing entities must be dealt with aggressively and decisively. The recent testing scandals, while implicating only a tiny fraction of testing sites and applicants, has unfairly tainted the overwhelming majority of applicants who legitimately used such entities to reduce their considerable anxiety level for the naturalization interview. We are glad to see that INS is decertifying questionable testing entities, and is seeking to improve the testing process as part of its redesign. However, the provision in H.R. 2837, that all testing be conducted on INS premises by a single contractor, goes too far.
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Non-INS testing has been immensely productive because it ensures that applicants who are not yet ready to pass the naturalization exam do not waste precious INS interview slots. Moreover, by providing a less intimidating testing environment than INS, such testing is particularly helpful to applicants who are elderly, disabled, as well as to traumatized refugees and asylees who are intimidated by questioning by government officers in a government office.
With this in mind, we would urge that the testing provision of H.R. 2837 be stricken. Instead, INS should be given sufficient latitude to redesign the testing process to ensure that testing of applicants will be conducted in a friendly environment, with enhanced monitoring, in order to ensure the integrity of this important part of the naturalization process.
CODIFICATION OF INS TECHNOLOGICAL REQUIREMENTS
Section 4 of H.R. 2837 would, for the most part, codify INS' existing regulations and procedures concerning fingerprinting and investigations of aliens applying for naturalization and certain immigration benefits. Putting INS regulations into statute would be unnecessary, since INS is already following these procedures.
ADJUSTMENT INTERVIEW PROVISIONS
Under instructions from President Bush to weed out unnecessary and burdensome regulations, INS granted its local directors authority to waive interviews in some adjustment (green card) cases. The Service issued guidance describing the limited circumstances in which interviews may be waived. Interviews are waived only on a case-by case basis for those applications with good supporting documentation for which denial rates and instances of fraud are minimal. By waiving the interviews that are predictably pro-forma, INS is able to spend more time interviewing applicants whose documentation or profile renders their applications suspicious.
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INS has established that waiving some adjustment interviews is necessary in order to ''allow the Service to redirect resources to enhance the detection and deterrence of fraud and to reduce the backlog of pending cases.'' Consular or INS officers have already interviewed most adjustment applicants at some point. Furthermore, INS only waives interviews for those cases in which interviews are not the most effective means of fraud detection. Consequently, the requirement in H.R. 2837 that every adjustment applicant be interviewed would exacerbate the backlog and would misappropriate INS resources away from more effective investigative techniques just to conduct extremely pro forma interviews.
Section 5 of H.R. 2837 will, therefore, likely result in both increased backlogs and lower fraud detection rates in adjustment cases
QUALITY ASSURANCE PROVISIONS
Section 10 of H.R. 2837 would mandate that the Attorney General establish a quality assurance process for the naturalization program, and that annual reports on compliance with theses procedures be submitted to Congress at the end of each fiscal year through FY2001.
This provision merely codifies procedures that INS has implemented within the last two years, and formalizes the Attorney General's and INS' practice of reporting to Congress on the progress in implementing these procedures.
CONCLUSION
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In conclusion, through vigorous oversight, this Subcommittee has already succeeded in correcting serious deficiencies that had called into question the integrity of the naturalization program. H.R. 2837 would undermine this success by imposing unrealistic requirements on INS and on applicants. In addition, the Bill makes no statement on the importance of welcoming new citizens into our society. Nor does H.R. 2837 address the massive backlog and customer service issues that currently plague the naturalization program. We urge the Subcommittee to use its oversight authority to work with INS on these issues, rather than to pursue this highly problematic bill.
Mr. SMITH. Thank you, Mr. Hetfield.
Let me correct some of your misunderstandings regarding the technical aspects of the bill. Then I will have some questions for you.
First of all, the bill addresses the material misrepresentation law in section 340, not the false testimony law in section 101.
Second, our materiality rule does nothing more than preserve the existence of that separate ground for denaturalization, in accordance with the original intent of the statute.
Most important, the section on intent does not put the burden of proof on the respondent. It merely creates a rebuttable presumption that is immediately defeated when the respondent offers an explanation of his misrepresentation.
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So, maybe that will clarify some of your concerns. One other quick question. I just want to make sure, because I could not tell from your testimony. If an alien commits a deportable crime, you do favor deporting that individual, do you not?
Mr. HETFIELD. Yes.
Mr. SMITH. Under all circumstances, if they have committed a deportable crime?
Mr. HETFIELD. Yes.
Mr. SMITH. I was not sure.
The other thing you mentioned was in regard to purely political crimes that an individual might have committed back in a home country. Clearly, the intent of the bill is not to have someone excluded soley for that reason.
Let me switch on over to Ms. Jenks. As far as I am concerned, you gave the best explanation of the intent of the bill regarding good moral character. Clearly, we are not trying to impose additional requirements on individuals. What we are saying is, for example, if someone committed a particularly heinous crime in their home country, and it was more than 5 years ago, then we want to be able to catch that and presume that the INS will catch that.
Ms. Jenks, let me ask a question. Do you think that this bill will increase the backlog or increase the time of processing an individual in the backlog?
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Ms. JENKS. I do not believe, personally, that it will because my understanding of the bill is that the main requirement that would be time consuming in the adjudication process is the fingerprinting requirement, which is already INS policy.
So, that is already in place. And, potentially, the 30-day investigation of a lost or stolen green card, if the person happens to lose it, or have it stolen, or whatever, within a month of when the oath is scheduled, which is going to be in a very small share of cases. It shouldn't be a problem for the most part, as long as the INS explains to people upon applying for citizenship that they will be expected to turn in their green card or have to provide an affidavit and wait and give INS 30 days to investigate.
Presuming that the optimum adjudication time is 6 months, I do not see where that would be a problem, except for a very tiny fraction of cases where a person, for example, is mugged on the subway within a month of the scheduling of the naturalization ceremony.
In fact, I would argue that the provisions of this bill, as I have said, mostly are simply codifying already existing INS policies. When these provisions are combined with the appropriations act, the Fiscal Year 1998 Appropriations Act, as long as INS is using its new resources effectively, I do not see why the backlog cannot be taken care of very quickly.
The appropriations bill was very specific in giving INS additional funding for fingerprint programs, for computer cleanup, to transfer 400 temporary personnel to permanent positions.
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As far as I am concerned, the appropriations bill dealt with the resource issues. This bill is dealing with the statutory and regulatory issues.
Personally, I do not believe that we have had adequate assurances from INS that they will continue to comply, in perpetuity, with the policies that are in place right now. So, I see good reason for statutory reform.
Mr. SMITH. Thank you. I agree with the last statement.
You mentioned that the INS had recieved additional resources from the Appropriations Subcommittee. But, INS kept saying that they need these additional millions of dollars to expedite the technical processing of naturalization applications. Yet, we have just given them $20 million to do just that.
Was it your impression that INS wanted more? Why could they not improve the process with the money that we have already given them?
Ms. JENKS. I am not entirely sure that they were addressing the funds that were given to them in the appropriations act.
For example, I spoke with Mr. Hill, from the former panel, and asked him if he was aware of the appropriations provisions and he had not seen them, which was why he focused so heavily on the efficiency part in his statement.
The INS panel, I do not know. I mean, obviously computerizing all of these records and so on is going to be a lengthy process. He said very specifically that they have got initial funding to start that process.
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Mr. SMITH. We will have to follow up with them.
Again, to emphasize the point that you just made: The only way to make sure that the INS does not allow itself to be pressured or politicized, or for any reason cheapen the process, the only way I know of to protect the integrity of the process is to put it in the statute.
Otherwise, we are leaving it at their discretion, which is what got us into trouble in the first place. The Gentleman from Indiana, Mr. Pease, is recognized.
Mr. PEASE. Thank you, Mr. Chairman.
I apologize to both the members of the panel that I did not get back from the Floor in time to hear your presentation. I heard the end of yours, Mr. Hetfield.
Ms. Jenks, one of the things that came up earlier today was the discussion about document fraud and the concern about lost or stolen green cards and that whole subject.
If you have already discussed this, and I know you have touched on it in your written materials, but if you have already discussed it, then I will read the transcript.
If you have not, can you just give us your observations on that and how this bill may or may not be helpful in that regard?
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Ms. JENKS. Well, as far as the provision in the bill that requires people to notify INS or to report a stolen or lost green card, I do not see any way that that could be construed as unreasonable.
If you lose your driver's license, you have to go get a new one or you can be ticketed for driving without a license. If you lose a credit card, you report it that same day. Simply asking someone to report a stolen or a missing green card, I do not see that as unreasonable at all.
I guess I would agree with Dr. Teitelbaum that it most likely will be difficult for the INS to enforce a $50 civil penalty because people will say, well, I just lost it yesterday, you know, or whatever.
I think in many cases, the $50 fine could act as a deterrent to people who would otherwise sell their green card before they naturalize because they do not think they are going to have to turn it in.
I mean, clearly, there is a huge problem in this country with document fraud. Every day we read about the latest ring that has been uncovered making green cards, or birth certificates, or whatever. It seems to me that any steps that can be taken statutorily to deter or reduce that would be worthwhile.
Mr. PEASE. I will not breach a confidence by disclosing who it was, but one of the Members of this committee provided us a green card he bought on the street for $30 not too long ago. Thank you very much.
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Mr. Hetfield, I did not hear all of your remarks. We only got your written materials this morning. So, I may not have understood the full context.
It seemed to me, from what I did hear, that you were making an argument that persons who are applying to be U.S. citizens, should be accorded the same rights as people who are already U.S. citizens.
You gave the analogy that we would not expect the burden of proof in an IRS case to be on the taxpayer. Yet, we do expect, if the bill is adopted, the burden of proof would be on the person who applies to be a U.S. citizen. Did I understand you correctly?
Mr. HETFIELD. No. Let me clarify that.
I was talking about the revocation of naturalization provisions. So, I am talking about people who have been granted U.S. citizenship. The INS would be seeking to remove that citizenship administratively.
So, at the time of the proceeding, they would be U.S. citizens. In fact, the law and the regulations already do state that citizenship remains until it is revoked and until all remedies have been exhausted.
Mr. PEASE. Where are the requirements for providing a change of address obtained?
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Mr. HETFIELD. Right. The citations are in my written testimony. I am hoping that the change-of-address provision is just a technical glitch in this bill.
Since the McCarran-Walter Act, lawful permanent residents have been required to keep the INS advised of their address and to notify the INS in a timely fashion every time they move.
This provision says that an applicant who is deportable for certain reasons cannot be naturalized, and failure to file a change-of-address card is one of the reasons that was actually specifically enumerated in H.R. 2837.
Mr. SMITH. Would the Gentleman yield just for a minute?
Mr. PEASE. Yes.
Mr. SMITH. I want to explain the situation with the change-of-address card which was maybe unintentionally omitted by the witness.
The statute specifically requires that the failure to notify the INS of a change of address has to be willful, as opposed to just careless.
The experience of the INS, and our experience as well, is that there are many individuals who will intentionally not notify, in other words, wilfully not notify the INS of a change of address because they are either trying to avoid deportation orders or avoid the INS being able to find them.
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Those are the individuals that the statute is addressed or targeted at; not the person who, for some reason, innocently forgets to file a change-of-address card.
Mr. PEASE. I do appreciate that, Mr. Chairman. That is very helpful and, quite frankly, I think that is the way it should be.
Mr. SMITH. Okay.
Mr. PEASE. I have no further questions.
Mr. SMITH. Thank you, Mr. Pease.
Anything else that you all would like to add, Mr. Hetfield or Ms. Jenks?
Ms. JENKS. I would just like to say that I want to get this straight because it is my understanding on the rebuttable presumption of willfulness, that it does not actually place the burden of proof on the alien to prove that he is not denaturalizable, if that is a word, but rather as soon as he says, I have got an explanation for why my answer on the application is not, in fact, the truth, the burden of proof goes back to the Government. Am I right on that?
Mr. SMITH. That is correct.
Mr. HETFIELD. May I address that?
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Mr. SMITH. Yes.
Mr. HETFIELD. That is simply not my understanding.
Since there is an underlying presumption, the applicant would have to present some kind of countervailing evidence, under H.R. 2837 says.
Because there is no transcript of INS interviews, because there is no court reporter, because there is no tape recording, nobody really knows what went on during that interview; what was communicated, or what was not communicated, or under what circumstances things were or were not communicated.
Mr. SMITH. Yes.
Mr. HETFIELD. So, as a result, it does come to the officer's word versus the word of the applicant or of the now-naturalized citizen.
In such cases, the presumption should fall on the INS. You are talking about INS officers who adjudicate, you know, 15 to 20 cases.
Mr. SMITH. Wait a minute. This is the same INS that you want to give additional discretion to and here I am agreeing with you. They typically allow any affirmative excuse to stand as a legitimate excuse for not changing the address.
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I do not want to change that. In this case, I am willing to leave it up to the INS to accept that excuse or explanation in the future.
Mr. HETFIELD. Right. Conversely, this is the one area where you give INS a much greater amount of latitude. In every other area of this bill, you simply limit their discretion.
Mr. SMITH. In this area, they have not shown us that they have abused their discretion. In the other areas, they have clearly abused their discretion on a regular basis.
Mr. HETFIELD. Right. But in this area, this power has only existed for the last year. This is a very recent regulation. They did not do administrative denaturalization until last year.
Mr. SMITH. We will just have to trust the INS for a few more months and see what happens, to make sure they do not do anything wrong.
Any other observations or questions?
[No response.]
If not, thank you both for being here.
[Whereupon, at 12:20 p.m., the hearing adjourned.]
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(Footnote 1 return)
Civil Rights Issues Facing Asian Americans in the 1990s, U.S. Commission on Civil Rights, p. 7 (1992).
(Footnote 2 return)
U.S. Dept. of State, Paper Relating to the Foreign Relations of the United States 1924 (1939), Vol. 2, p. 339. See Higham, American Immigration Policy in Historical Perspective, 21 Law and Contemp. Probls. 213, 227 (1956).
(Footnote 3 return)
Act of Feb. 5, 1917, 39 Stat. 874.
(Footnote 4 return)
This quota limited nonEuropean immigration. For example, Great Britain with two percent of the world's population had 43% of the quota. National Lawyers Guild, Immigration Law and Defense, pp. 2–4.
(Footnote 5 return)
At the time, only immigrants from Asia were ineligible for citizenship solely on the basis of race. See Ozawa v. U.S., 260 U.S. 178 (1922).
(Footnote 6 return)
Ch. 344, 57 Stat. 600 (1943).
(Footnote 7 return)
Id.
(Footnote 8 return)
P. Chew, William and Mary Law Review, Asian Americans: The ''Reticent'' Minority and Their Paradoxes, p. 13 (1995).
(Footnote 9 return)
See Ozawa v. U.S., 260 U.S. 178 (1922); U.S. v. Bhagat Singh Thind, 261 U.S. 197 (1923); and In re Ah Yup, 1 F. Cas. 223 (Cir. Ct. D. Cal. 1878).
(Footnote 10 return)
H. Kim, Ed., Dictionary of Asian American History, Asian Americans and American Immigration Law by T. Knoll, pp. 52–3 (1986)
(Footnote 11 return)
H. Kim, Ed., Asian Americans and the Supreme Court, Asian Americans and Present U.S. Immigration Policies, A Legacy of Exclusion, by W. Tamayo, pp. 1112–1113 (1992).
(Footnote 12 return)
8 U.S.C.A. §1429 (West Supp. 1998).
(Footnote 13 return)
See 8 U.S.C.A. §1101(f)(3) (West Supp. 1998) (provision prohibits finding of good moral character for certain classes of persons thus preventing the ability to naturalize).
(Footnote 14 return)
H.R. 2837, 105th Cong. §2 (1997).
(Footnote 15 return)
See 8 U.S.C.A. §1229a(a)(1) (West Supp. 1998) (mandates that an immigration judge conduct proceedings to determine deportability of an immigrant).
(Footnote 16 return)
8 U.S.C.A. §1229(a), 1229(b), 1229a(a)(4) (West Supp. 1998).
(Footnote 17 return)
See, e.g., 8 C.F.R. §316.10 (1998) (provides a laundry list of automatic bars and likely bars to naturalization).
(Footnote 18 return)
H.R. 2837, 105th Cong. §2(a) (1997), which cross-references to include 8 U.S.C.A. §1227(a)(3)(A) (West Supp. 1998) (making failure to file change of address card a deportable offense).
(Footnote 19 return)
8 U.S.C.A. §1427(a)(1) (West Supp. 1998). There are exceptions to the five-year residency rule, such as when a naturalization applicant is married to a United States citizen he or she need only reside in the United States as a permanent resident for three years. 8 U.S.C.A. §1430(a) (West Supp. 1998).
(Footnote 20 return)
8 U.S.C.A. 1427(a)(3) (West Supp. 1998).
(Footnote 21 return)
H.R. 2837, 105th Cong. §3 (1997).
(Footnote 22 return)
The law currently provides:
(Footnote 23 return)
For example, conviction for murder is a bar to citizenship no matter how long ago the act occurred. 8 C.F.R. §316.10(b)(i) (1998). Another example is conviction for an ''aggravated felony,'' if the conviction occurred on or after November 29, 1990, is also a bar to citizenship. 8 U.S.C.A. §1101(f)(8) (West Supp. 1998); 8 C.F.R. §316.10(b)(ii) (1998). This is despite that fact that ''aggravated felony'' under the INA includes offenses that are considered misdemeanors under many State laws and offenses for which those convicted never served time in jail.
(Footnote 24 return)
The naturalization applicant bears the burden of demonstrating that he or she is a person of good moral character. 8 C.F.R. §316.10 (1998).
(Footnote 25 return)
H.R. 2837, 105th Cong. §5 (1997).
(Footnote 26 return)
Id. at §6.
(Footnote 27 return)
Id.
(Footnote 28 return)
H.R. 2837, 105th Cong. §8(a) (1997).
(Footnote 29 return)
Id. at §8(b).
(Footnote 30 return)
H.R. 2837, 105th Cong. §9 (1997).
(Footnote 31 return)
8 U.S.C.A. §1451(a) (West. Supp. 1998).
(Footnote 32 return)
8 U.S.C.A. §1451(h) (West Supp. 1998). 13
(Footnote 33 return)
Kungys v. United States, 485 U.S. 759 (1988); United States v. Koziy, 728 F.2d 1314 (11th Cir.), cert. denied, 469 U.S. 835 (1984).
(Footnote 34 return)
H.R. 2837, 105th Cong. §9(a) (1997).
(Footnote 35 return)
Id. at §9(b).
(Footnote 36 return)
Id. at §9(c).
(Footnote 37 return)
8 U.S.C.A. §1427(a) (West Supp. 1998).
(Footnote 38 return)
Many Americans are surprised to learn how few such countries there are: the list would include the U.S., Canada, Australia, Israel, perhaps France—and not many others.