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Statement of Stephen Yale-Loehr American
Immigration Lawyers Association On
The
Immigration and Naturalization Service: How
Should It Be Restructured? Before
the Senate
Judiciary Committee May
2, 2002 Washington,
D.C. Mr. Chairman and distinguished Members of the
Subcommittee, I am Stephen Yale-Loehr. I teach immigration and refugee law at
Cornell Law School in Ithaca, New York, and am co-author of Immigration
Law and Procedure, a 20-volume immigration law treatise that is
considered the standard reference work in this field of law. I am honored to be
here today representing the American Immigration Lawyers Association (AILA).
AILA is the immigration bar association of more than 7,800 attorneys who
practice immigration law. Founded in 1946, the association is a nonpartisan,
nonprofit organization and is an affiliated organization of the American Bar
Association (ABA). AILA
members take a very broad view on immigration matters because our member
attorneys represent tens of thousands of U.S. families who have applied for
permanent residence for their spouses, children, and other close relatives to
lawfully enter and reside in the United States. AILA members also represent
thousands of U.S. businesses and industries that sponsor highly skilled foreign
professionals seeking to enter the United States on a temporary basis or,
having proved the unavailability of U.S. workers, on a permanent basis. Our
members also represent asylum seekers, often on a pro bono basis, as well as
athletes, entertainers, and international students. Given
AILA’s concerns with all aspects of our immigration function, I am especially
pleased to be here today to express AILA’s views on how best to restructure the
Immigration and Naturalization Service (INS). This is neither an academic
exercise nor one with solely bureaucratic implications. Rather, reorganization
has consequences for U.S. citizens, legal permanent residents, refugee and
asylees, American business and our national security. What is at stake here is
whether people will be able to naturalize, get their green cards, and find safe
haven; whether our economy will be strengthened by needed foreign workers; and
whether the INS will contribute its share to enhancing our security. INS
restructuring tops the congressional agenda for many reasons, not the least of
which is that the agency has been unsuccessful in fulfilling its dual missions
of enforcement and adjudications and is ill-equipped to respond appropriately
to our nation’s security needs post-September 11. Several bills have been
introduced to reform the agency that reflect these concerns, and the INS is in
the process of implementing the Bush Administration’s own administrative
proposal. ESSENTIAL ASPECTS OF A SUCCESSFUL REORGANIZATION OF THE INS As Congress and the
Administration address restructuring the INS, it is important to emphasize the
following points: · Passing legislation to restructure
the INS is one step in a multi-step process, the end result of which needs to
be effective, efficient, and fair adjudications and enforcement. Before
restructuring, the agency needs to eliminate its current huge backlogs. The INS
also must implement internal management and cultural changes essential for
meaningful reform. ·
Congress can either make or break any restructuring plan due to its
central role in creating and maintaining our federal immigration function. Congress must
end its practice of sending the agency conflicting, complicated, unfunded and
incomplete mandates that have severely diminished the INS’s ability to fulfill
its missions. Furthermore, many of these mandates stem from rapid and often
contradictory changes in our immigration laws and reflect the absence of an
enduring consensus on immigration issues and priorities. Congress cannot expect
the INS to effectively implement policies that are contradictory and change
rapidly. No reorganization can succeed if Congress does not change its
relationship with the INS. In fact, without such change, we will be right back
to where we are today, no matter which reorganization plan is implemented. ·
Any meaningful restructuring of the immigration function needs to include
adequate funding, especially given the increased demands resulting from the
September 11 attacks. Since the INS’s enforcement and adjudication
functions are both in the national interest, each should receive from
congressional appropriations the funding needed to fulfill mandates. While the
enforcement function now receives appropriated funding, the adjudications
function is supported largely through user fees. The funding level achieved
through these fees is inadequate and must be supplemented by direct federal
appropriations. Finally, adequate funding needs to be appropriated to create
reliable information systems that are regularly updated. ·
While an effective, efficient and fair INS restructuring is essential,
such reform will not in itself address many pressing concerns. Reforming the
INS will not alter the fact that U.S. immigration policy needs to be changed to
make legality the norm. Currently families face long delays before they can be
reunited, no visa exists to bring in certain kinds of needed workers, and the
1996 immigration laws eliminated due process for many legal permanent
residents. Reforming the INS will not address these and other concerns, but
leaving these concerns unresolved will stand in the way of a successful
reorganization of the agency. ·
The Administration and Congress need to undertake INS reorganization in a
way that takes into account, and does not disrupt, the enforcement and
adjudication requirements of our post-September 11 world. In our world of
security concerns, it is necessary to fully integrate our immigration
functions. Accordingly, the terrorist attacks reinforce the need for someone in
charge with clout who can articulate our nation’s immigration policies, someone
with more power than the current Commissioner. They also reinforce the fact
that both adjudications and enforcement are equally in the national security
interest and are most effectively implemented when they are closely coordinated
and based on a common understanding of the law and policy. ·
Reorganizing the INS can and should be a nonpartisan effort that brings
together the best thinking from Republicans and Democrats, experts in the
field, and the INS’s customers. As
the federal agency responsible for both enforcing U.S. immigration law and
adjudicating applications for naturalization and family and business
immigration, the INS needs to function efficiently, effectively, and fairly,
and with our national security concerns in mind. The September 11 attacks
underscore the fact that the agency’s two functions, enforcement and
adjudications, are both in the national interest and merit the attention of and
support from Congress. The
INS has been severely criticized for failing to effectively, consistently,
professionally, and humanely enforce immigration laws through nationally set
priorities. Since September 11, many have concluded that the agency is not up
to the challenge of protecting us from terrorists because of fears that we
cannot control our borders and reports that some of the terrorists were in
legal status, others had overstayed their visas, and the status of others is
unknown because of the lack of records. “Fortress
America” is impossible to achieve and not in our national interest, but we can
better equip our immigration function to help make us safer. A smart
reorganization of the INS will help accomplish that goal, as will the passage
of the Enhanced Border Security and Visa Entry Reform bill. That legislation
will enhance our intelligence capacity and develop layers of protection so that
our land borders are not our first line of defense. AILA applauds Senators
Edward Kennedy (D-MA), Sam Brownback (R-KS), Jon Kyl (R-AZ), and Dianne
Feinstein (D-CA) for their groundbreaking efforts on the Border Security
measure, and supports its swift passage into law. Why
has the INS faltered in carrying out its missions? Both the INS and Congress
are to blame. First, the agency needs to better manage its enforcement and
adjudications responsibilities, which themselves need to be both better
differentiated and coordinated. Second, the agency has had problems dealing
with the vast and complicated changes in immigration law and the unprecedented
growth in its size and responsibilities. Third, the continued absence of
adequate resources for adjudications makes it difficult for the INS to fulfill
its responsibilities in this area. Finally, Congress has contributed to the
agency’s problems because of conflicting, complicated, unfunded, and incomplete
mandates. As a result, people wait years to reunite with close family members
and obtain U.S. citizenship, and businesses are forced to wait years to fill
jobs with needed legal immigrants. Moreover, the INS has been crippled because
it is granted neither the financial resources nor adequate authority (such as
access to relevant databases of other federal law enforcement agencies) to
carry out its functions successfully. AILA
is on record urging the creation of a new, independent cabinet-level department
or agency combining all current immigration-related functions of the INS and
the Departments of Justice, State, and Labor. Such an agency should separate,
but coordinate, immigration services and enforcement functions. Just as we have
an Environmental Protection Agency to coordinate all environmental issues, we
also should have a single, cabinet level immigration agency to handle all
immigration issues. If a new, independent agency is unfeasible, AILA urges the
creation within the Department of Justice (DOJ) of two separate, but
coordinated, entities for services and enforcement. These two bureaus should be
staffed by trained individuals who can rise within the ranks of their
respective bureaus based on their experiences. (Unlike current circumstances,
the two bureaus would need to offer their employees similar benefit and
retirement packages.) Someone in charge who reports directly to the Attorney
General should oversee these bureaus. Having such a person in charge would
improve accountability by fully integrating policy making with policy
implementation, coordinate the efforts of the two bureaus, ensure direct access
to high-level officials within the executive branch, and attract top managerial
talent. Several plans have been proposed to restructure the INS. These plans
reflect different visions of how best to restructure the agency. Most reflect
the consensus that the enforcement and adjudication functions should be
separated. The plans differ, however, on whether there should be a strong
central authority, what the role and responsibilities of the enforcement and
adjudications divisions should be, and whether these two functions should be
coordinated. Such differences are significant and can play a leading role in
determining whether reorganization efforts will ultimately succeed or fail. The
Bush Administration Plan: Bush Administration officials have
emphasized the need for fundamental reform of the INS, and support separating
enforcement and adjudications to address competing priorities and problematic
chains of command. On November 14, 2001, the Administration announced a reorganization
plan, the details of which include many provisions that were part of the
bipartisan legislation introduced in 1999 by Senator Edward Kennedy (D-MA) and
former Senator Spencer Abraham (R-MI). Many of these same provisions are
included in the bill soon to be introduced by Senators Kennedy and Brownback.
The Administration’s plan includes a strong Commissioner, clear lines of
authority, and separation (with coordination) of the agency’s enforcement and
adjudications functions. The Border Security Agency Proposal: Homeland
Security Chief Tom Ridge reportedly has proposed a plan to consolidate some of
the functions of the INS, including enforcement, inspections and the Border
Patrol, with those of the U.S. Customs Service. Other reports indicate that the
Coast Guard and some Department of Agriculture programs would be included in
this consolidated agency. Some Members of Congress have introduced measures
that would create such an agency. While enhanced coordination of enforcement functions (and border-related
functions, specifically) is vitally important, any inter- and intra-agency
coordination would be harmed by any proposal that splits off INS inspections
and other aspects of INS enforcement from the entity responsible for overseeing
our nation’s immigration system. Such splitting off runs counter to an
effective reorganization of our immigration functions, and would threaten the
necessary balance between enforcement and adjudications. It is essential to
have one person in charge of all immigration functions to ensure the
consistency of legal opinions, interpretation, and implementation. A border
security function that subsumes the enforcement aspect of immigration but which
would be separated from adjudications would lead to ineffective enforcement and
adjudications. Rather than moving boxes around an organizational chart, some form of
unified port management may offer an effective solution, and merits further
investigation. But unified port management does not require the reinvention of
the proverbial wheel by forming a new single federal agency. Instead, it would
involve individual agencies reporting to a single port director at the ground
level for major port operation decisions. Efficiencies could be achieved
through community and agency involvement to create a port authority reporting
to a governing body comprised of agency and Administration members. Such a body
would clearly and decisively react to port of entry security, staffing,
infrastructure, and policy needs. All of these needs must be coordinated to
achieve the goal of enhanced border, and hence, national, security. The Sensenbrenner/Gekas Bill (H.R. 3231):
Insisting that the Bush Administration’s proposed reorganization of the INS
could not be effective, Representatives James Sensenbrenner (R-WI) and George
Gekas (R-PA) introduced H.R. 3231. The version of H.R. 3231 passed by the House
on April 25 does include some positive improvements on the legislation as
originally introduced. We commend Representatives Sensenbrenner and John Conyers
(D-MI) for their hard work to reform a deeply troubled agency. H.R. 3231 would abolish the INS and create an Office of Associate
Attorney General for Immigration Affairs (AAG). It also would create two
Bureaus within the Department of Justice: the Bureau of Citizenship and
Immigration Services and the Bureau of Immigration Enforcement. While the
relationship between the AAG and the two bureaus is unclear, it appears that
the AAG would have insufficient authority, especially when compared to the clout
that the bill would give to the Directors of the two Bureaus. The Directors of
the two bureaus would be charged with establishing immigration policy. In
addition, while the bill would separate the agency’s competing functions, it
provides little, if any, coordination between the two. The Bush Administration, while issuing a statement urging House passage
of H.R. 3231, noted its concern with several provisions in the bill, including
the weakened authority of the new AAG in comparison to the authority of the
existing INS commissioner. The
Kennedy/Brownback Bill: This bipartisan measure, entitled the
Immigration Reform, Accountability and Security Enhancement Act of 2002, would
dismantle the INS and establish in its place the Immigration Affairs Agency
(IAA) within the DOJ. A Director of Immigration Affairs who is tasked with full
responsibility and authority to administer the agency would head the IAA. The
bill also would establish a Bureau of Immigration Services and Adjudications
and a Bureau of Enforcement and Border Affairs, each headed by a Deputy
Director. The Kennedy/Brownback reorganization plan creates an immigration
agency headed by a Director with clout, separates and coordinates the
enforcement and adjudications functions, has clear lines of authority, and
includes helpful funding provisions. As such it is the only legislative
proposal that fulfills the criteria reviewed below. In summary, both the Bush plan and the Kennedy/Brownback bill would
place someone in charge with clout and would separate, but coordinate, the
agency’s two functions. H.R. 3231 does not create a strong central authority.
Nor does it provide for coordination between the two functions. The Ridge plan,
by consolidating INS enforcement and border functions with functions now housed
in other agencies, would separate these functions from adjudications, making a
consistent interpretation of the law and any coordination between the two
extremely problematic. The Ridge plan also appears to contradict the INS
reorganization plan that the Administration has advanced and has begun to
implement. That plan, in contrast to the Ridge border security plan, is based
on a strong central authority with direct lines of command over the enforcement
and adjudications functions. INS REORGANIZATION WOULD
AFFECT REAL PEOPLE Any reconfiguration of our immigration function will work only if it
successfully serves real people. Here are some examples of why it is vital to
have a single person in charge and close coordination between adjudications and
enforcement: These examples underscore the need for restructuring to be based on the
principles discussed below. AILA
believes that any successful reorganization of the INS must be based on the
following four criteria: ·
Appoint a high level person with clout to be in
charge of both the adjudications and enforcement functions. ·
Coordinate the separated enforcement and
adjudications functions. ·
Provide adequate resources. ·
Ensure that a reorganized immigration function
contributes to our national security. A successful reorganization of our immigration functions hinges on the
appointment of one full-time, high-level person with line authority. Such an
office would improve accountability, especially critical after the September 11
terrorist attacks, by fully integrating policy making with policy
implementation, ensuring direct access to high-level officials within the executive
branch, attracting top managerial talent, having authority both horizontally
and vertically, and leading the efforts of the two bureaus. Especially after
September 11, it is vitally important that one person at the top articulates a
clear, coherent, and unified immigration policy within the government, to
Congress, and to the world. Given this country’s urgent need to maintain and upgrade its security,
it is now more pressing than ever to place one person in charge who is
accountable so that our laws are implemented quickly and fairly, rather than
developing two rival bureaucracies that will create balkanized immigration
policies. Given this need for accountability and coordination, AILA also would
support placing the inspections function in the office of the person in charge.
Given that enforcement and adjudications come together in the inspections
process, it is important that the person in charge oversees the exercise of
this procedure and that inspectors receive training in both adjudications standards
and enforcement procedures. In contrast, the Bush Administration plan and H.R.
3231 both would place inspections in the Bureau of Enforcement. The need for someone in charge of national policy with direct authority
over the two immigration functions is evident in other areas as well. For
instance, immigration enforcement officers interdicting or inspecting asylum
seekers will likely have a different interpretation than would immigration
service personnel as to whether the asylum seeker is eligible for protection
under U.S. laws and treaty obligations. One central authority would help ensure
consistent interpretations of the law. 2.
Coordinate the separated enforcement and adjudications functions. A
consensus has been reached that separating the enforcement and adjudications
functions will lead to more clarity of mission and greater accountability,
which, in turn will lead to more efficient adjudications and more accountable,
consistent, and professional enforcement. The Kennedy/Brownback bill, H.R. 3231,
the Bush Administration’s plan, and the Ridge border security plan all are
based on such a separation. However, coordination of the two functions is as important as
separation and is key to a successful reorganization because enforcement and
adjudications are two sides of the same coin. Almost every immigration-related
action involves both enforcement and adjudicatory components. The INS’s recent
blunder in notifying a Florida flight school regarding the agency’s approval of
student visa applications for two of the now-deceased September 11 terrorists
reinforces the need for these two functions to be even more closely coordinated
than they are today. Only through such coordination will we achieve consistent
interpretation and implementation of the law, clarity of mission and, in turn,
more efficient adjudications and more effective, accountable, consistent, and
professional enforcement. Such
coordination cannot be achieved merely by creating a shared database.
Inconsistent policies and interpretations of the law, the lack of a common
culture, and – most importantly – the absence of someone in charge who can
resolve differences, can turn routine referrals into Kafkaesque nightmares. The
Kennedy/Brownback bill and the Bush Administration plan provide for this
coordination. H.R. 3231 and the Ridge proposal do not. While H.R. 3231
separates enforcement and adjudications by creating two separate Bureaus within
the Department of Justice, there is little coordination between the two, save a
General Counsel placed in a weak Office of the Associate Attorney General. This
coordination is largely lacking because there is no high level official given
sufficient authority over the two bureaus who would be able to integrate shared
information systems, policies, and administrative infrastructure, including
personnel and training. The two bureaus likely would end up working at
cross-purposes, with the leaders from each sending conflicting messages on
policy matters pertaining to complex laws. The
absence of coordination can lead to inconsistent opinions and policies, and
result in each bureau implementing laws differently, thereby creating ongoing
difficulties. The absence of coordination will exacerbate these concerns even
more and raise additional questions. For example, since border inspections
combine both adjudications and enforcement functions, how will the many
different activities that take place at our ports of entry be handled? These
activities can include officials adjudicating asylum eligibility, granting final
admission as a legal permanent resident based on an immigrant visa, issuing
entry documentation, interdicting those ineligible to enter the United States,
and assisting in the interdiction of those engaged in trafficking activities.
Given the structure of H.R. 3231, these functions would not be organized,
integrated or coordinated. Furthermore,
how will Congressional staff be able to efficiently handle requests for
assistance on immigration matters? Without adequate coordination, staff will be
forced to deal with two separate bureaus that implement different policies and
practices, making their jobs much more difficult and time-consuming. As
the reorganization debate continues, we urge Congress to review how immigration
functions have been and should be funded. Currently, enforcement functions are
supported by congressional appropriations, while adjudications are largely
funded by user fees. Since adjudications are as much in the national interest
as enforcement, adjudications should receive on an ongoing basis direct
congressional appropriations to supplement user fees. AILA supported the establishment
of the Examination Fee Account when it was first created. However, given the
history and status of that account, we have revised our views and urge Congress
to supplement user fees with congressional appropriations to ensure that an
appropriate level of service is achieved. In
addition, adjudication fees paid by applicants for immigration benefits should
be used solely to adjudicate those applications. In practice, a large share of
the user fees has been diverted to support other functions. Immigrants,
particularly when they already are experiencing lengthy delays and unacceptable
levels of service, should not be forced to pay for programs unrelated to the
processing of their applications. The responsibility for programs that do not
generate fees should be shared among all taxpayers. Both
the Kennedy/Brownback bill and H.R. 3231 include important first steps in this
area. But we believe that Congress should go beyond the measures included in
both bills and dramatically increase its appropriations role. Our immigration function, whatever shape it
takes, has an important role to play in helping our nation enhance its
security. To aid in that effort, a restructured immigration agency needs a
strong leader at the top who can quickly undertake decisive actions, especially
in periods of emergency. To be effective, particularly in times of crisis, a
reorganized agency also must have accountability. Creating an agency with a
weak position at the top, and empowering the heads of two conflicting
bureaucracies, as envisioned in H.R. 3231, is a recipe for conflict and
dysfunction, especially in times such as these when the need for quick and
effective decision-making is essential to protecting our national interests. Any restructuring of our immigration function
to enhance our security must reflect the importance of both adjudications and
enforcement and include adequate funding for both. While the importance of
enforcement is obvious in this regard, the security-related aspects of
adjudications have been downplayed during the restructuring debate. As
important as it is to enforce our laws as a means to enhance our authority, it
is equally crucial that we distinguish those who mean to do us harm from those
who seek entrance into our country, much as our ancestors did, to help us build
this nation. Provisions in the Border Security and Visa Entry Reform bill
reflect the importance of both functions and the need to pay for initiatives in
both areas. Any INS reorganization bill should do the same. Given our nation’s enhanced security needs
after the September terrorist attacks, it is important that Congress and the
Administration support direct federal appropriations for the kinds of
technological, staffing, and infrastructure needs that both the INS (in its
enforcement and adjudications capacities) and the Department of State will
require. The security agendas of these two agencies cannot be supported through
user fees alone. The enhanced capacity to meet our security needs is an
important national function best supported through the federal government and
will require such support on an ongoing basis. The
information Congress needs to help determine the best reorganization plan must
be reliable. AILA urges Congress to seek this information from many sources,
including INS staff at headquarters and in the field and those who use the
agency’s services. AILA member attorneys have much experience dealing with the
INS at headquarters and in the field (at service centers, district offices, and
ports-of-entry, for example). We stand ready to relay to Congress information
concerning the agency’s failures and successes based upon the hundreds of
thousands of encounters our members have had with the INS over the years. Such anecdotal information serves a useful function. However, it is
precisely that: opinions of AILA members based upon their experiences. Rigorous
study would be needed to determine if these opinions are fact. The General
Accounting Office (GAO) did not exhibit such caution when it recently issued a
report entitled “Immigration Benefit Fraud: Focused Approach Is Needed to
Address Problems.” The GAO report was supposed to review information on the
nature and extent of immigration benefit fraud at the INS. Fraud
should not exist within the INS or any agency. Immigration benefit fraud
threatens the integrity of the legal immigration system. It cannot and should
not be tolerated. Like the GAO, many, with good reason, have found fault with
INS management. Certainly, there is much room for improvement. We all want an
agency that works, and works well. However, any investigation of fraud must be
conducted fairly and use methods that are above question. Based on these
criteria, the GAO has failed. Its report presents opinions as facts, makes no
attempt to corroborate allegations raised, and portrays the INS’s successful
efforts at fraud detection as examples of a broken system. In fact, the report
really is two reports: one focusing on alleged fraud based on uncorroborated
opinions, and the other detailing procedural changes from which any agency
would benefit. What
did we learn from this report? The
GAO has raised serious charges. Such charges need to be based on fact, not
allegations or conjecture. There is room for improvement in any agency,
especially the INS, but any successful reform must be guided by accurate data.
CONCLUSION INS
restructuring is not a dry exercise involving reform of a government
bureaucracy. Decisions in this area will impact directly on our national
security, as well as the lives of hundreds of thousands of American citizens,
businesses, and legal immigrants who daily interact with this system. Making
the wrong decisions can weaken our security through less effective and unfair
enforcement, and result in unconscionable delays in citizenship processing,
reuniting families, and helping American business to acquire the workers they
need. Mr.
Chairman, thank you very much for this opportunity to share my thoughts and
perspectives with the committee. AILA remains available to discuss these
matters with you at any future time, and is dedicated to working with Congress
and the Administration to ensure that reorganization succeeds. Thank you. 28ts2005A |
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