PREFACE

What makes this country unique is its openness to new ideas and new people. The strength derived from our diversity has made us the greatest country in the world. In the aftermath of the terrorist attacks of September 11th, this country is grappling with a fundamental challenge: How can we maintain our openness while at the same time making sure that those who seek to do us harm never get the chance?

It is a challenge we can and must answer. Indeed, the Bush Administration, working with the Congress, has made a strong start in addressing a range of weaknesses related to visa policies and border security. But more must be done to both close the door on potential terrorists who seek to enter America, and open the door to newcomers who contribute to the prosperity and vitality of our nation.

THE WAY FORWARD FROM HERE

The Goals

Visa, border, and admissions reforms should work towards achieving three goals:

1) Keep out those who want to do us harm.
2) Admit those who want to work hard and contribute to a stronger America.
3) Enable us to get a better handle on who is crossing our borders and who is already here in the United States.

The Necessary Next Steps

In order to move farther and faster towards realizing these goals, the Forum calls on President Bush, his Administration, and Congress to take the following steps this year:

1) Congress should enact the Border Security Act (officially titled the Enhanced Border Security and Visa Entry Reform Act), which effectively addresses the next generation of measures needed to tighten up our intelligence gathering and sharing mechanisms, visa screening practices, port of entry inspections, and tracking policies and practices.

2) President Bush should energize the U.S.-Mexico migration negotiations in his upcoming meeting with President Fox, and call for a migration accord to be signed by the end of the year that combines security and enforcement cooperation with more legal visas and legal status for Mexican migrants. This will largely complete the fast start the Bush Administration has made in developing a coherent and comprehensive "smart and secure borders" strategy with Mexico and Canada.

3) The Bush Administration and Congress should implement the Bush Administration's November, 2001 INS restructuring plan, or quickly enact INS restructuring legislation that comports with the key elements contained in that plan.

4) Congress should work with the President to approve his FY2003 budget request regarding border security so that the necessary next steps are fully funded.

IMMIGRATION POLICY IN THE WAKE OF SEPTEMBER 11TH

The government has already brought to bear enormous resources and urgent changes to safeguard against additional acts of terrorism. Here are just some of the immigration-related measures that have been implemented in the past few months.

• Augmenting the authority already at the government's disposal, Congress took action immediately after September 11 to shore up our intelligence and immigration systems. In October 2001, Congress passed (and the President signed) the "USAPATRIOT Act," giving domestic law enforcement and international intelligence agencies sweeping new powers to detect and intercept persons suspected of links to terrorism.
• With the help of a $40 billion Emergency Response Fund appropriated by Congress, federal agencies with different responsibilities at our nation's borders quickly developed new ways to collaborate, share information, and supplement the duties of their kindred agencies, and by all accounts have achieved a level of inter-agency cooperation that is unprecedented.
• The Immigration and Naturalization Service (INS) detailed hundreds of Border Patrol agents and Inspectors to the northern border, major U.S. airports, and other ports of entry to bolster examinations of travelers seeking entry at these locations and guard against unauthorized entries.
• Customs inspectors were detailed to the northern border to ensure that all ports of entry that had previously been staffed only part-time were staffed by at least two agents twenty-four hours a day, seven days a week.
• The Coast Guard deployed hundreds of cutters, aircraft, and small boats to patrol approaches to our ports and enhance security in these vulnerable areas.
• The Customs Service improved the INS and State Department's access to the Advance Passenger Information System, its database containing information on arriving commercial air passengers.
• The State Department's Bureau of Consular Affairs (the arm of the State Department that interviews foreigners overseas before granting them visas for travel to the U.S.) gave the INS access to the Consolidated Consular Database, which contains photos of individuals issued visas by the State Department.
• In October 2001, President Bush created the Foreign Terrorist Tracking Task Force made up of representatives from the State Department, Federal Bureau of Investigation (FBI), INS, Secret Service, Customs Service, and the intelligence community.
• The Task Force is charged with keeping foreign terrorists off of U.S. soil by denying entry to potential terrorists from abroad and going after those who have already entered the country. High-level INS and Customs Service officials began receiving regular security briefings from intelligence agencies, whereas in the past these agencies were reluctant to share intelligence they gathered.
• In December, 2001, the U.S. government signed a new "smart and secure borders" agreement with Canada, which focuses on deterrence, detection, and prosecution of security threats, along with the disruption of illegal immigration. The heart of the agreement is to keep terrorists from using Canada as a staging ground for entry into the U.S. to do us harm, while facilitating the cross border commerce vital to both nations. The agreement expands the use of Integrated Border Enforcement Teams, provides the Canadian federal law enforcement authorities with access to FBI fingerprint records, integrates Canadian officials into the U.S. Foreign Terrorist Tracking Task Force, calls for consideration of joint visa requirements to control unlawful migration from one country to the other, establishes Joint Passenger Analysis Units to assess passenger information at key international airports in the U.S. and Canada, increases the number of Canadian and U.S. immigration control officers overseas in order to intercept inadmissible passengers heading to either country, and calls for developing common biometric identification cards to increase rapid and positive identification of passengers.
• A similar "smart borders" agreement, although slightly less ambitious, is being negotiated by the U.S. and Mexican authorities and should be announced soon. The key elements will likely to focus on 1) improved sharing of intelligence in order to thwart potential terrorists from entering Mexico in hopes of then entering the U.S. illegally; 2) border crossing practices that facilitate and streamline the passage of legitimate people and cargo while identifying those that require more extensive screening; and 3) intensified joint efforts to crack down on human trafficking, a flourishing black market activity that poses obvious security risks. This "smart borders" agreement would build on unprecedented Mexican cooperation on law enforcement matters that President Fox has demonstrated since his election less than two years ago. For example, in the spring of 2001 and following high-level negotiations in Washington, D.C. and San Antonio, Texas, the U.S. and Mexico began a cooperative plan to combat and dismantle human smuggling and trafficking organizations, a level of cooperation on a sensitive subject previously considered unimaginable.

But this is only a start. To more effectively deter the admission of potential terrorists, we believe a number of administrative and legislative measures must be taken to improve our visa and border management policies and practices.

These four most important steps for 2002 are detailed below.

Enact the Border Security Act

This bipartisan legislation was crafted by Senators Brownback (R-KS), Kennedy (D-MA), Kyl (R-AZ), and Feinstein (D-CA), and enjoys broad support from policy makers and policy experts from across the spectrum. It has passed the House of Representatives twice, has over 50 Senate co-sponsors (including Senators Daschle and Lott), and if not for the delaying tactics of Senator Robert Byrd (D-WV), would likely have been enacted into law by now.

The legislation improves our nation's ability to identify potential terrorists before they enter the United States by adding layers of security from the point of screening overseas, during travel to the United States, Canada, and Mexico, upon inspection at the U.S. entry points, and after entry into the U.S. on a valid visa.

Specifically, the Border Security Act accomplishes the following:

• Institutionalizes the sharing of intelligence regarding potential terrorists between the nation's intelligence agencies and the nation's gatekeeper agencies.
• Upgrades the staffing and technology capabilities of the INS and the Customs Service so they are better trained and equipped to effectively screen out potential terrorists.
• Promotes the use of secure passports and visas resistant to counterfeiting through the use of encoded biometric identifiers on smart cards that are machine readable at points of entry.
• Promotes the creation of layers of security for those departing for and arriving in the U.S. by a) calling for greater cooperation with the governments of Mexico and Canada so that those governments synchronize with ours the process by which foreigners coming to the North American continent are screened, lest potential terrorists attempt to use our neighbors to the north and south as stepping stones to entering the U.S.; b) promoting the use of "pre-inspection" stations so that U.S. immigration officials can inspect passengers departing for the U.S., Mexico, or Canada from overseas; and c) requiring that all airlines transmit to the U.S. the list of passengers who have boarded a plane bound for this country (some airlines, but not all, already share their passenger lists with U.S. authorities). These aforementioned provisions are additional opportunities for scrutinizing visitors; each arriving visitor is, and will continue to be, subject to inspection by an immigration officer upon arrival in the U.S.
• Closes gaps in the system to monitor foreign students established by recent laws so that the government can track whether foreign students who have obtained visas to study at U.S. schools actually enroll in the course of study they have been accepted in, and whether they are otherwise complying with the terms of their visas. The bill also requires the periodic review of schools authorized to admit foreign students, to ensure that these schools are properly complying with record-keeping and reporting requirements.
• Improves the system mandated by recent legislation that would require keeping a record of all foreign nationals who enter and leave the U.S. The ability to match entries into and exits from the U.S. will alert the government to those who stay in the U.S. beyond the term of their visas.

Energize the U.S.-Mexico Migration Negotiations

President Bush and President Fox should use the occasion of their meeting in Monterrey, Mexico on March 22nd to jumpstart the U.S.-Mexico migration talks and commit their Administrations to 1) reaching agreement on a specific framework for a far-reaching migration accord by the end of the summer, and 2) concluding a signed accord no later than the end of this year. This will set the stage for Congressional action in 2003.

Prior to September 11th, the U.S.-Mexico negotiations had considerable momentum. The outline of a future agreement began to emerge, aimed at achieving three mutually-reinforcing goals:

1) Joint enforcement efforts to reduce illegal immigration;
2) More legal visas for workers and families coming to the U.S. so that the limits on legal immigration are more consistent with market forces and family dynamics, and therefore more amenable to being effectively enforced; and
3) Earned legal status for hardworking immigrants already here so that they are properly documented, can more readily protect their rights and participate fully in their communities, and are eligible for eventual permanent residence and U.S. citizenship.

This approach is even more relevant today. The profound insight at the heart of the U.S.-Mexico migration negotiations is that the best way to improve border security and enforcement is to strengthen joint enforcement strategies and open legal channels for immigration that benefits both countries. By working together to facilitate legal migration and isolate unauthorized migration, the U.S. and Mexico will be in a better position to 1) more effectively crack down on the black market in human smuggling and trafficking; 2) maximize the benefits of those who come to the U.S. to work hard and make a contribution; and 3) track third country nationals attempting to illegally enter the U.S. via Mexico.

This is a deal that works for the United States. Mexico works in a coordinated fashion with U.S. authorities to deter potential terrorists from entering Mexico in hopes of entering the U.S. illegally and to disrupt smuggling syndicates that facilitate illegal immigration and pose obvious security risks, and the United States devises migration and border policies that more effectively regulates who can enter, who cannot, and who is already here. This comprehensive approach would significantly enhance both our national and economic security.

Restructure the Immigration and Naturalization Service

Smart borders and smart policies will only work if we have a smart agency to administer them. As currently structured, the Immigration and Naturalization Service is far from smart.

For years, immigrant advocates have called for a sweeping overhaul of the Immigration and Naturalization Service. We have no illusions that restructuring alone will solve the INS's problems, or do so quickly. Even a well-structured agency will require years of internal reform to produce the management processes, career tracks, and cultural changes required for meaningful change. Nevertheless, restructuring the nation's federal immigration agency is a necessary and long-overdue step that must begin in earnest this year.

We believe there are two fundamental problems facing the INS at present. First, the agency is structured to fail. And second, even if properly structured, the existing patchwork of immigration policies are impossible to implement.

Structurally, the INS is beset by a weak executive function. The Commissioner's office is too low in the Justice Department hierarchy to be taken seriously, and too often ignored by the 33 INS District Directors who operate decentralized fiefdoms around the country. As a result, the Commissioner is held accountable but has little meaningful authority, while District Directors have enormous authority but are difficult to hold accountable. Over the years, this mismatch has led to a consistent pattern of unprofessional and misdirected enforcement activities, and unprofessional and discourteous service delivery.

Meanwhile, our nation's immigration policies are as antiquated and ineffective as the INS itself. As called for in this paper, the Administration and Congress have to go beyond creating an INS that can effectively enforce and administer our laws to creating laws that can be effectively enforced and administered. The current patchwork of laws unreasonably limits legal immigration in a way that encourages illegal immigration, is focused more on keeping out potential workers than on keeping out potential terrorists, and as a whole, is so complicated it makes the U.S. tax code look simple to understand and enforce.

From the point of view of immigrant advocates, any restructuring of the INS should conform to these long-held principles.

Separate the enforcement and service functions: These two functions should be separated, with distinct chains of command that enhance accountability within the two branches. Career tracks should be created both for those who enforce the laws effectively as well as to those who provide services effectively. Moreover, dividing the functions will have the salutary effect of replacing District Directors with local heads of the distinct functions.

Retain core functions in a strong executive office: The federal government's immigration functions require a full-time, high-level CEO with the authority to speak to the Congress, immigration-related bureaucracies, and the country about what is being done, what will be done, and what should be done. This will improve accountability, fully integrate policy making with policy implementation, and coordinate enforcement and adjudications functions as needed. To accomplish this, a strong executive office should retain critical sub-offices such as General Counsel, Budget, Congressional Affairs, and Public Affairs.

Coordinate functions, technology, and information: Cost efficiencies and much needed coordination between the distinct but related functions of adjudicating applications while safeguarding border security and the integrity of our laws are best served by closely coordinating functions, sharing information, and using common technology.

Fund the INS adequately and fairly: Currently, the enforcement functions of the INS are supported by ever-increasing congressional appropriations, but Congress has directed the agency to support the service side of the agency through ever-increasing user fees. Even so, fees collected from immigrants, their family members, and their employers are often reprogrammed by Congress to pay for other functions. This bad habit must be stopped if the nation is to provide more efficient adjudications as well as consistent and professional enforcement of our laws.

Some suggest the dual functions of enforcing limits and admitting newcomers are inherently contradictory, and the only way to restructure is to dismantle the INS as we know it. This may make for a good sound bite, but not for good policy and practice. America is a nation of immigrants and a nation of laws, and under a more intelligent policy and practice regime than the status quo, these commitments actually reinforce each other. And a properly structured agency would be able to walk and chew gum at the same time; to deter illegal immigration and deter the admission of potential terrorists on the one hand, and facilitate the entry of legitimate visitors and provide timely service to those coming to join families or U.S. employers on the other.

On November 14, 2001, the Bush Administration announced its plan for reorganizing the INS to better accomplish its dual mission. It is a proposal that we strongly support. The plan is based in large part on bipartisan legislation authored in 1999 by former Senator Abraham (R-MI) and Senator Kennedy (D-MA), a proposal that was almost enacted that year. In the works long before September 11th, the final version was informed by lessons the Justice Department and INS learned in responding to the terrorist attacks. As a result, the plan has significant advantages for the agency's new, security-focused way of doing business, and was met with favorable reviews by immigrant advocates.

At the plan's unveiling, Attorney General Ashcroft said that "[u]nder the plan, clear and separate chains of command for the agency's service function and enforcement function are created. Efficiency is improved by eliminating layers of management between field offices and headquarters, and accountability is promoted by providing overall direction under a single agency head, the INS Commissioner." This plan comports with our principles, and we strongly support it.

There are competing ideas related to the future of the nation's immigration function that we fear could make a bad situation worse. One is championed by the House Judiciary Committee Chairman James Sensenbrenner (R-WI), and the other is championed by Homeland Security chief Tom Ridge.

The Sensenbrenner approach would divide the INS into two separate organizations and then put an emasculated executive in place to coordinate the two distinct agencies. The weak executive office would be even weaker than the current INS Commissioner post. This would be like sending troops into battle not with commanding officer authorized to give orders but with a guidance counselor authorized only to dispense advice. As currently conceived, the Sensenbrenner approach is likely to undermine, rather than facilitate, much-needed improvements in accountability and efficiency.

Based on press accounts, the Ridge approach would consolidate some elements of the INS, such as the Border Patrol, with the U.S. Customs Service (earlier proposals would have included the Coast Guard) under either the Department of Justice or the Homeland Security Office. Although enhanced coordination of border-related functions makes sense, the idea of collapsing these functions into a combined bureaucracy strikes us as a "big idea" in the post-September 11th environment that is still looking for a rigorous analysis and thoughtful rationale. Claiming that it is confusing to have officials with different uniforms at ports of entry is simply not good enough. Moreover, going down this road is likely to slow down INS restructuring. And if enacted, it would separate out INS enforcement functions that we contend operate best when coordinated with a distinct services branch under the command of strong executive office.

The time to act is now. The President and Congressional leaders should move to restructure the INS along the lines of the principles contained in the President's original INS plan and supported by stakeholders most familiar with the problems and challenges of the INS.

The Bush Administration's FY2003 Budget on Visa Reform and Border Security

Any enforcement measure-new or old-cannot be effective unless there is money to pay for it. To that end President Bush, in his budget proposal for Fiscal Year 2003, earmarked $11 billion for border security. This money would fund increased border management operations for all agencies and departments involved in carrying out these duties, including the Immigration and Naturalization Service, the State Department, the Customs Service, and the Coast Guard. In addition, it would contribute substantially to new information tracking and sharing initiatives related to the entry and exit of foreign nationals.

Specifically, the budget calls for:

• The creation of an Information Integration Office within the Department of Commerce to facilitate the sharing of terrorism-related information among U.S. government agencies "in a way that improves both the time of response and the quality of decisions."
• A $1.2 billion increase in the Immigration and Naturalization Service's enforcement budget to double the number of Border Patrol agents and INS inspectors on the northern border, construct a state of the art system to track the entry and exit of foreign nationals, and install integrated information systems to share pertinent data with agents operating in the field.
• Increases in the State Department budget to provide for information management and security functions, training, anti-fraud and other security-related efforts in the State Department visa process, creation of a forensic documents lab to review suspected fraudulent documents and help with fraud investigations, and implementation of a coordinated strategy to improve consular systems and processes supporting U.S. border security.
• An increase in the Customs Service's inspections budget for 800 new inspectors and agents and for the purchase of advanced shipment inspection equipment to minimize time-consuming, labor-intensive searches while maximizing vigilance.
• Increased funding for the Coast Guard for, among other things, developing tracking mechanisms for all maritime vessels, and for moving inspection of potentially dangerous vessels further from U.S. soil.

THE KEYS TO SUCCESS: ISOLATING TERRORISM, NOT AMERICA

Some suggest the only way to make America safe is to close the borders, but building a wall around America is neither practical nor desirable. Real success in preventing another terrorist attack will depend on many interrelated factors.

• Getting intelligence about potential terrorists into the hands of the nation's gatekeepers in real time.
• Creating layers of security with multiple opportunities to stop someone intent on doing us harm.
• Eliminating opportunities for terrorists to hide behind fraudulent travel documents.
• Cooperation from Canada and Mexico to 1) deter terrorists from arriving in North America in the first place, and 2) manage our common land borders in a way that deters the passage of dangerous people and cargo while facilitating the lawful and orderly passage of commerce and people that benefit this country.
• Fixing the INS and fixing the immigration laws the INS is responsible for administering.
• Properly funding both the enforcement and the adjudications branches of a restructured federal immigration agency.

The preceding is a statement by the National Immigration Forum, one of the nation's leading pro-immigrant policy groups. The paper deals exclusively with policies and strategies related to visa reform, border security, and admissions policies in the wake of September 11th. It does not address the civil liberties and due process implications of the aggressive law enforcement actions carried out by the Department of Justice since September 11th, critical issues which deserve a separate and full review.