<DOC>
[107 Senate Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:86041.wais]
S. Hrg. 107-887
THE IMMIGRATION AND NATURALIZATION SERVICE: HOW SHOULD IT BE
RESTRUCTURED?
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED SEVENTH CONGRESS
SECOND SESSION
__________
MAY 2, 2002
__________
Serial No. J-107-77
__________
Printed for the use of the Committee on the Judiciary
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WASHINGTON : 2003
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COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts ORRIN G. HATCH, Utah
JOSEPH R. BIDEN, Jr., Delaware STROM THURMOND, South Carolina
HERBERT KOHL, Wisconsin CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California ARLEN SPECTER, Pennsylvania
RUSSELL D. FEINGOLD, Wisconsin JON KYL, Arizona
CHARLES E. SCHUMER, New York MIKE DeWINE, Ohio
RICHARD J. DURBIN, Illinois JEFF SESSIONS, Alabama
MARIA CANTWELL, Washington SAM BROWNBACK, Kansas
JOHN EDWARDS, North Carolina MITCH McCONNELL, Kentucky
Bruce A. Cohen, Majority Chief Counsel and Staff Director
Sharon Prost, Minority Chief Counsel
Makan Delrahim, Minority Staff Director
C O N T E N T S
----------
STATEMENTS OF COMMITTEE MEMBERS
Brownback, Hon. Sam, a U.S. Senator from the State of Kansas..... 3
Feinstein, Hon. Dianne, a U.S. Senator from the State of
California..................................................... 5
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa. 2
Hatch, Orrin G., a U.S. Senator from the State of Utah........... 39
Kennedy, Hon. Edward M., a U.S. Senator from the State of
Massachusetts.................................................. 1
Leahy, Patrick J., a U.S. Senator from the State of Vermont...... 45
Thurmond, Strom, a U.S. Senator from the State of South Carolina. 48
WITNESSES
Mazzoli, Romano L., former U.S. Representative, and Fellow in Law
and Public Policy, University of Louisville, Louisville,
Kentucky....................................................... 7
Virtue, Paul W., former General Counsel, Immigration and
Naturalization Service, Washington, D.C........................ 18
Yale-Loehr, Stephen, American Immigration Lawyers Association,
Ithaca, New York............................................... 23
SUBMISSIONS FOR THE RECORD
Independent Monitoring Board, Chicago, Illinois.................. 41
United States Ombudsman Association, Nashville, TN............... 52
THE IMMIGRATION AND NATURALIZATION SERVICE: HOW SHOULD IT BE
RESTRUCTURED?
----------
THURSDAY, MAY 2, 2002
United States Senate,
Committee on the Judiciary,
Washington, D.C.
The committee met, pursuant to notice, at 2:30 p.m., in
room SD-226, Dirksen Senate Office Building, Hon. Edward M.
Kennedy presiding.
Present: Senators Kennedy, Leahy, Feinstein, Durbin,
Brownback, and Grassley.
OPENING STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR
FROM THE STATE OF MASSACHUSETTS
Senator Kennedy. We will come to order.
September 11 clearly demonstrated that our immigration
system has not kept up with security challenges. Two weeks ago,
the Senate took an important step in the effort to bolster
national security by unanimously passing legislation to
strengthen the security of our borders. Restructuring the INS
will help further this effort by bringing our immigration
system into the 21st century.
I thank my colleague, Senator Brownback, for his
significant commitment to this issue. I thank Senator Grassley
and Senator Feinstein, who are recommending that we hold this
important hearing.
Senator Brownback and I have just introduced the
Immigration Reform, Accountability, and Security Enhancement
Act, comprehensive legislation to remedy many of the problems
that currently plague the agency and provide a more effective
and efficient framework to address our immigration
responsibilities.
Senator Feinstein's bill addressing the plight of
unaccompanied minors which we held a hearing on earlier this
year is a natural complement to this legislation, and I thank
her for her willingness to merge the two bills.
This bill will untangle the overlapping and often confusing
organizational structure of the INS, and replace it with two
clear chains of command, one for enforcement and the other for
services. Both functions have long suffered under the current
structure. Separating these competing responsibilities will
provide the new Immigration Affairs Agency created by this bill
with greater accountability, efficiency, and clarity of
purpose.
On the enforcement side, it is clear that our immigration
laws are being applied inconsistently. Some of the September 11
terrorists were here legally, others had overstayed their
visas, and the statute of others is still unknown. Improving
the structure of the agency will help ensure greater
accountability and consistent and effective enforcement of our
immigration laws.
Immigration services are also suffering. Massive backlogs
force individuals to languish for years waiting for their
naturalization and permanent resident applications to be
processed. Files are lost, fingerprints go stale. Courtesy
behavior is too often the exception rather than the rule.
Application fees continues to increase. Yet, poor services and
long delays continue as well.
As important as it is to separate these functions, adequate
coordination between the two branches is also critical. This
bill provides for a strong, shared, central authority over the
two branches to ensure uniform immigration policy, efficient
interaction between the two bureaus, and fiscal responsibility.
Commissioner Ziglar has made significant progress in
addressing the agency's problems. However, I believe this
legislation is needed to ensure the agency's successful
operation in the future.
There is strong bipartisan agreement that the INS must be
reformed, but restructuring must be done right. Successful
reform must separate the enforcement and service functions,
while maintaining a central authority for uniform policymaking,
accountability, coordination, and fiscal responsibility. The
Immigration Reform, Accountability, and Security Enhancement
Act accomplishes these goals.
I look forward to the testimony of our witnesses, and I
hope the Senate acts favorably on this legislation in the near
future.
Senator Grassley?
STATEMENT OF HON. CHARLES E. GRASSLEY, A U.S. SENATOR FROM THE
STATE OF IOWA
Senator Grassley. Thank you, Mr. Chairman. This is a very
important hearing to be held and I thank you very much for
holding it.
We have, starting last November, Mr. Ashcroft and Mr.
Ziglar releasing a proposal to restructure the agency. That
very same day, I asked Senators Kennedy and Brownback, the
leaders of this subcommittee, to bring this important issue to
light by holding a hearing on the administration proposal. So
obviously I thank you for what I consider the beginning of a
discussion on the problems facing INS.
The American people do not need to be convinced that this
agency needs to be reformed. We all heard about the student
visa approval being sent to terrorists six months after the
World Trade Center incident. We know that there have been
failures to detect immigration benefit fraud, and we know that
the agency is not abiding by the provisions of the
Whistleblower Protection Act.
I understand that Commissioner Ziglar is moving ahead on
his plan, and on April 17 announcing the first steps in that
regard. They have more significant steps that I know they are
anticipating, including creation of a field advisory board.
We are not getting answers, and straight answers, from the
administration about snafus that have occurred at the INS or
actions they have taken. We will be giving the agency millions
of dollars this year to run more efficiently and implement
changes in structure.
I think as a member of this committee, having
responsibility to oversee INS management and performance, we
have a responsibility to get some answers from the
Commissioner, who is in control, and I am thankful for the
assurance that the chairman has given me that that will happen.
I know there is a growing consensus to split INS. I agree
that there are conflicts of interest. However, I think the two
new bureaus need to continue to work together hand in hand in
order to best serve the country. I know the Attorney General
and Commissioner propose to create a information officer. What
other links will be put in place to make sure that these two
bureaus work cooperatively and remain unified under one
director is a question that we have to ponder carefully.
We can't simply move boxes around and rename the agency and
then claim it is a new and improved bureaucracy. We need to fix
the systemic problems at the INS. I think that any bills
mandating changes to the INS should include provisions that
really make the INS accountable. We need to improve oversight
that allows investigations of misconduct. We need to enhance
the whistleblower protections provided to INS employees and
protect them from retaliation.
We need assurances that interior enforcement issues will be
addressed. Just as an example, last week 646 illegals were
arrested in Nebraska because they were smuggled into States
beyond the border. We need improvements in customer service,
seeing that the agency is doing its best to accommodate new
residents. The latest idea, thanks to Senator Hatch, creates a
number of field and satellite offices.
I know that legislative action is necessary. We give the
agency enough leeway to reform itself. Not much has been done,
but now it is time for Congress to step in.
Thank you.
Senator Kennedy. Thank you.
Senator Brownback, we would be glad to hear from you.
STATEMENT OF HON. SAM BROWNBACK, A U.S. SENATOR FROM THE STATE
OF KANSAS
Senator Brownback. Thank you, Mr. Chairman, and I thank you
for holding this hearing. I want to commend, as well, Senators
Grassley and Feinstein for requesting the hearing. The topic
certainly is critical, and it is timely.
Mr. Chairman, the attacks of September 11 exposed the
weaknesses in how we protect our borders. The terrorists
exploited the shortcomings in our immigration system and the
lack of communication between the respective agencies that
might have detected and deterred the events of that horrible
day.
At the same time, however, September 11 has also brought
out the best of this great Nation. As a people and as a
Government, we have united and stood firm in support of our
freedom and of our principles. Significantly, September 11 has
reaffirmed our Nation's pride in its immigration roots. We have
not lapsed into xenophobia, nor have we let terrorism cloud our
judgment about the value of our immigrant neighbors and our
visitors.
Mr. Chairman, I take great pride in the fact that the
border security bill which we and Senator Kyl and Senator
Feinstein put together was intelligent and balanced, and was
passed unanimously in the United States Senate. We were true
then both to our responsibility to protect our great Nation
from those who mean us harm and to keep our country open to
those who mean us well.
We need an agency that is likewise true to both of these
missions, an agency that can effectively enforce the
immigration laws and provide timely and competent immigration
services. Sadly, the Immigration and Naturalization Service has
failed to perform either mission well, and restructuring INS
has long been on the legislative agenda.
While I deeply respect the hard work that Commissioner
Ziglar has put into reforming that agency, the fact is that the
INS requires more fixes than can be done administratively. The
fundamental problems with the INS compel legislative
intervention.
That is why, Mr. Chairman, I am pleased to work with you on
the Immigration Reform, Accountability, and Security
Enhancement Act of 2002. I am also pleased that we have been
joined by our colleagues on this committee, Senators DeWine,
Durbin, and Edwards. I also want to thank Senator Feinstein for
allowing us to incorporate her very fine bill on juvenile
detention into our restructuring package.
Finally, I would like to offer special thanks to Senator
Hatch, who played a key and sometimes unheralded role in the
development of the border security bill. I am glad to see he
will be an integral part of the formulation of this important
legislation.
Mr. Chairman, I would like to point out that, as with
border security, we have a bipartisan, balanced, and
intelligent bill that will deal effectively with the challenges
that face our Nation. I look forward to our committee working
on this critical legislation, and I look forward to the
testimony of the esteemed witnesses that we will have in front
of us to talk about ways they view would be best at
restructuring this incredibly important agency.
I just want to note one other thing, Mr. Chairman. We are
looking at both the enforcement and the services end of the
Immigration Service, and I think we have got clear challenges
on the enforcement end that were brought into such sharp focus
when Mohammed Atta got the receipt for being able to go to
school six months after the event happened. It is in the
enforcement area that we have problems.
On the services area, in my State my lead case work area
that I have is immigration work; it is work with the INS. That
is the lead case work that I have. Something is just not quite
working right here when we have that type of system. It has
been that way for a number of years, so I don't blame this
administration and I don't blame the last administration. But
it is clearly something that needs to be fixed in both the
enforcement and in the services area.
What I am hopeful that we can do is provide a balanced,
thoughtful approach, and work with the administration on this
to get out a bill that improves the services and the
enforcement in the immigration field.
Thank you for holding the hearing.
Senator Kennedy. Thank you very much.
Senator Feinstein, welcome, if you had a word for us.
STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM THE
STATE OF CALIFORNIA
Senator Feinstein. Thank you very much. It is hard to say
just a word, but I will do my best.
I think, as Senator Brownback has just said, that you, Mr.
Chairman, have taken the initiative in pulling together a very
interesting piece of legislation that is really based on
reality. I think the events of September 11 have led really to
the highest level of scrutiny of the INS by Congress, by the
media, and by the public. Even with this heightened awareness,
the agency continues to commit grave errors in its prescribed
duties.
The INS has been described as an after-thought of the
Department of Justice. Over the years, it has been given
further responsibilities by Congress, but with little attention
toward the agency's growing staffing and budgetary needs. Each
effort to legalize populations in our country over the last 20
years has resulted in an immigration case overload, and
explains in part the slow application processing rate of its
service functions. Today, the INS adjudication caseload is
approaching 5 million cases.
The immigration laws enacted in 1996 also saddled the
agency with increased enforcement demands and mandates that
have had major ripple effects on the agency's overall
performance. The INS' organizational structure is so
decentralized, without adequate controls, with uncoordinated,
overlapping programs, especially in enforcement between the
regional and district offices.
But this really is nothing new. More than 10 years ago, the
GAO issued an extensive report identifying severe management
problems across the agency. Among other things, the GAO found
that the INS lacked clear priorities, lacked management control
over regional commissioners and district directors; had poor
internal communications and outdated policies; did not take
workload into account when allocating resources, which
contributed to the high backlog of applications; had unreliable
financial information, and thus inadequate budget monitoring.
That could almost be today's report, if you think about it.
I think, tragically, all these symptoms for us kind of came
together on September 11. Then, on March 11 of this year, as
Senator Brownback has pointed out, two of the hijackers
received notices that they had been approved for extension of
their student visas. Now, the point here is, even after 9/11,
nobody bothered to check the database that was going out to
look for any names that might have a terrorist connection. That
is very surprising.
On March 22, we learned that the INS had inappropriately
permitted four Pakistani nationals to take shore leave without
visas, after a ship docked in Norfolk, Virginia. These are the
only mistakes that have been uncovered, and it is the latest
illustration of an agency without adequate control or
accountability.
With an immigration landscape that is growing in complexity
and in size, the INS, as it is currently structured, doesn't
have the capacity to effectively manage the critical aspects of
its post-September 11 mission. So I am very pleased to join
with the chairman and the ranking member as a cosponsor of
their bill, the Immigration Reform, Accountability, and
Security Enhancement Act of 2002.
I think this legislation is really well-thought-out. It
abolishes the INS. It creates a new Immigration Affairs Agency
with two separate bureaus, one for enforcement, one for
service, each with concrete and focused responsibility. I think
more importantly, it makes immigration a higher priority within
the Justice Department by elevating the new Immigration Affairs
Agency into a higher position within the Department. It
streamlines the agency's growing and often competing missions.
Customs is a similar thing; it has a mixed mission--speed
trade, and yet prevent contraband from entering the country.
They are counterintuitive. You can't really do them both at the
same time, and that is also a problem in this agency.
So I think your legislation--our legislation, if you will--
would enforce accountability. It would enable better
communication and coordination. But I want to just say one
thing. I have become convinced over my long tenure that civil
service bureaucracies have a very difficult time adjusting to
modern management techniques, and it is not their fault. It is
that nobody is really trained as you go along. Things are done
often on a seniority basis.
I feel very strongly that this legislation has to permit
the hiring and firing. You have got to have managers who can
manage, who can hold people accountable, and if they don't,
replace them with someone who can, because the mission is too
important of this agency.
So with that, I am very happy to join you as a cosponsor.
Senator Kennedy. Thank you very much.
It is an honor to welcome my old friend and colleague, Ron
Mazzoli, back to Congress. He served in the U.S. House of
Representatives from 1971 to 1995, 24 years, where he chaired
the Subcommittee on Immigration, Refugees, and International
Law. Before entering Congress, he served in the Kentucky State
Senate. He served two years of active duty with the U.S. Army.
He is currently Senior Distinguished Fellow in Law and
Public Policy at the University of Louisville, in Kentucky, and
this semester was a visiting fellow at the Harvard Institute of
Politics, where I had the pleasure of seeing him recently and
where he taught immigration law.
I thank him for making the trip to Washington, particularly
during an important week in Kentucky. We see some of our
witnesses know what that means. It is Derby time and he has
given up the opportunity to be down there, but he has to be out
of here at 3:15.
We welcome you, Ron. He is an expert on immigration and
immigration law, and was responsible for many of the important
things that we did in immigration. He continues to teach it.
We are joined by the chairman of our committee.
Chairman Leahy. And one who joins in the praise of former
Congressman Mazzoli, who is a dear friend of all of ours on
both sides of the aisle.
STATEMENT OF ROMANO L. MAZZOLI, FORMER U.S. REPRESENTATIVE, AND
FELLOW IN LAW AND PUBLIC POLICY, UNIVERSITY OF LOUISVILLE,
LOUISVILLE, KENTUCKY
Mr. Mazzoli. Well, it is a great pleasure, Mr. Chairman and
members of your distinguished committee. Thank you very much
for the invitation. It is great to join friends. I served with
at least two members in the House and, of course, worked with
all the Senators in my 24 years here, in addition to which I
continue to be a C-SPAN watcher. So I watch all of you quite
frequently on that means.
It was a pleasure to join you, Senator Kennedy, at the
Institute of Politics just very recently, Monday of last week.
As I mentioned to you then, your brother, John, who is, of
course, the namesake of the school, was a very great
inspiration to me in the early 1960s to encourage me to go into
public office. What I did, I hope, at the Kennedy School this
semester was to encourage a new generation, as his generation
encouraged me.
I would like to also salute each one of you on the public
service aspect of what you are doing. I know enough about
immigration and know it is a very nettlesome and difficult
subject. People are conflicted about it, and it is therefore
quite a service that you are rendering to the people.
I remember Father Ted Hesburgh, Mr. Chairman, would say
often that this subject needed people who are willing to take
the slings and arrows in order to achieve the greater good.
That is exactly what you are doing and I commend you for that.
Mr. Chairman, today I am not going to deign to be an
expert, which I am not, on management and exactly how the
organization ought to be structured and the details of it. You
have many of those experts coming to talk with you, but let me
just address in a general way what I hope at the end of the day
we have in this new immigration setting and what capability
will be.
I mentioned earlier about this conflicted message and
ambivalence. It has marked our policy for many years, and with
all respect to the immigration people, it is very hard for them
here in Washington and for people in the field to do their job
when they are not really sure what job they are supposed to do.
So one of the things that we will do in the next few months
or few weeks is to restructure, but that alone is not going to
solve all the problems. That just begins the effort, and at
some point you members of the Senate and the people of the
United States will engage in a national discussion or a
national debate about what immigration policy should be. Then,
therefore, it seems to me that some flexibility ought to be
left in whatever plan you come up with so that the new
director, secretary, associate attorney general, will have that
opportunity to lead the debate, to be part of it, and also to
remain flexible to carry that new mandate out.
I believe, Mr. Chairman, that the House bill was a very
worthy effort, and it is certainly a step in the right
direction. But if I have a preference and would state it today,
it would be on behalf of the bill that you and Senator
Brownback and Senator Feinstein and others on the committee
have introduced.
It gives the director more authority, more visibility. It
gives him or her a greater degree of budget authority, which is
so important in Washington parlance. It gives that man or woman
a bully pulpit in order to attempt to lead this important
debate which is pending and looming.
I have worked with many directors of the Immigration
Service over the years, dedicated men and women. But once
again, it is hard for them to do their work unless they have a
clear-cut set of authorities to deal with, and then also to
have a clear mission.
Clearly, separation of the service from the enforcement
sector will be done. That is a foregone conclusion, and
devolution of authority to the people who will lead these two
branches is also a foregone conclusion. But separating the
functions alone won't do it, unless those two separated
functions can work together, coordinate what they are doing,
and have an orchestrated effort to achieve the overall mission
and goals. So definitely separation, but some form of
coordination has to remain.
Certainly, the authority ought to be in the leaders of the
two separate branches, but not such plenary authority that
those leaders would be able to somehow muddle or countermand
the overall mission as established by the leader.
The 1998 immigration policy program headed by Dr.
Papademetriou did a program called ``Reorganizing the
Immigration Function.'' In 1998, 4 years ago, 5 areas were
identified that needed attention in the INS--lack of policy
coordination, inadequate customer service, muddled priorities,
mission overload, and lack of accountability--all of which were
mentioned in the preliminary statements today. So that is a
very pertinent study and members of the staff ought to perhaps,
if they have not already, take a look at that. It might be
helpful in looking forward.
Particularly pertinent is the policy coherence, or lack
thereof, because once again, until this ambivalence is
resolved, we are not going to be able to know exactly what we
are doing. Reorganization alone can't do it, but I think it is
a step in the right direction.
Mr. Chairman, if I might end up on this point, I am sure
you and your colleagues, Mr. Chairman, will keep foremost in
mind that the exercise here is not some Rube Goldberg-ish idea
of moving the boxes and connecting the dots. It is an exercise
in developing a Federal agency equipped to deal effectively and
efficiently in the 21st century with immigration matters which
affect people, not numbers, not statistics, not year-end
reports, but men and women and children who often encounter
problems in coming to America and living in America and raising
their families in America and living out the American dream, as
my father who came to this country from Italy did many years
ago.
So, Mr. Chairman, whatever the Congress and the
administration do will have desperate importance to these
people, simple people, hard-working people, people with a
dream, people once again like my father, people like George
Atia, the cab driver that we sort of fell into in Cambridge,
and James Wong, who runs the laundry in Cambridge that we
became friends with, simple people, and also people, Mr.
Chairman, exactly like those 300 people from 60 nations of the
world who gathered in Faneuil Hall on March 28, just a few days
ago, to be sworn in as newly-minted U.S. citizens, and courtesy
of Judge Neumann of Springfield, were led in their first Pledge
of Allegiance to the Flag of the United States by our
granddaughters, 9-year-old and 7-year-old Katie and Courtney
Doyle of Louisville, Kentucky.
I am sure, Mr. Chairman, that this new group of immigrants
will contribute, achieve, and overcome, as earlier generations
have. How can I be sure, Mr. Chairman? Because I saw it in
their eyes and I heard it in their voices. Mr. Chairman, I
commend you and your colleagues to your task of reorganizing
the Immigration Service, always bearing in mind the people for
whom we undertake this task.
Mr. Chairman, thank you very much.
[The prepared statement of Mr. Mazzoli follows.]
Statement of Hon. Romano L. Mazzoli, Former U.S. Representative from
the State of Louisville, Kentucky
Thank you, Senator Kennedy and Senator Brownback for this
invitation. It allows me to return to Capitol Hill, where I spent 24
happy years in the Congress--serving, I should add, with many members
of this panel while they were Members of the House and with scores of
other Senators who started their careers in the ``Peoples' House''
before moving to the ``Other Body'' as House Members term the U.S.
Senate. It is always a great pleasure and even a thrill to return to
the historic and hallowed buildings of Capitol Hill.
I must confess that my years on Capitol Hill observing and engaging
in Floor and Committee proceedings have left their indelible mark.
Seven years after retiring from the House to return home to teach at
the University of Louisville, I remain a ``C-SPAN junkie''--needing a
daily ration of Congressional fare to stay healthy and content. So,
though I have been gone a long time, I have stayed in close touch with
my former colleagues and their legislative interests--specially
including today's subject: immigration policy and procedure.
Before getting to my brief observations about the legislative
effort to restructure the U.S. Immigration and Naturalization Service,
I must mention having been with Senator Kennedy Monday of last week
when he and the members of the Senior Advisory Committee--the Board--of
the Institute of Politics at Harvard University's John F. Kennedy
School of Government met to evaluate the Institute's many programs and
to receive reports from the Fellows of the Institute.
It was my distinct pleasure and honor to have been a Fellow for the
Spring Semester and to have led a Study Group of Harvard College
students in a discussion of immigration. My students were talented and
intelligent and personable, and they made my stay at Harvard enriching
and memorable.
As I mentioned to Senator Kennedy at the conference, his brother
became president a year after my wife and I were married, and we were
impressed greatly by this near-contemporary who was our new, young
leader. We were inspired--as were so many in my generation--to think of
public service as a noble calling and a high pursuit. I entered public
life in 1967 in part because of John Kennedy and his example, and I
found it fitting and appropriate that, many years later, I would serve
in the school named in his honor. As your brother inspired my
generation, Senator Kennedy, I strove as a Fellow to pass along his
inspiration to a new generation of future leaders.
Lastly, I salute all of you on serving your country and your
constituencies by grappling with the vexing and nettlesome issues
surrounding immigration. People ask me today, twenty years after I took
up immigration issues in the House of Representatives, why I got
involved. I reply: not just because my own father was an immigrant to
the U.S. from Italy though that was a reason and not just because it
gave me a chance to work with some of the revered figures in the field
such as Senator Al Simpson and Representatives Peter Rodino and
Hamilton Fish and staff leaders such as Jerry Tinker and Dick Day,
though this is a reason, but mainly, I reply, because of Reverend
Theodore M. Hesburgh, CSC, then President of the University of Notre
Dame, my alma mater, who served in 1981 as Chair of President Jimmy
Carter's panel on immigration reform and who judged the issue to be a
preeminent, overriding one which needed legislative leaders poised to
accept the ``slings and arrows'' in order to achieve the greater good.
I hope I acquitted Father Ted's judgment, by my work in the legislative
vineyards, and I am sure each of you is acquitting it today.
Let me begin today by stating that I will not recommend a detailed,
specific plan for INS reorganization. I am not a management expert nor
am I totally familiar with the nuances and subtleties of the several
plans to remodel the INS which are before the panel and the Congress.
But, I am sure in them--augmented by the several proposals offered by
immigration advocacy and policy groups including that of Dr.
Papademetriou's Migration Policy Institute--are all the ingredients
necessary to craft a final workable plan.
My role today, as I see it, is to opine on what, at the end of the
day, the restructured immigration entity should be capable of doing
well and efficiently.
I start my remarks as I will end them, by paraphrasing my all time
favorite government quote--except for Tip O'Neill's ``all politics is
local'' ``If it ain't broke don't fix it.'' Regarding the INS: It is
broke. So, fix it. But, don't break it all over again in fixing it.''
In other words, the INS needs repair and redirection and restructure in
the worst way, but do not repair, redirect and restructure it ``in the
worst way.'' Just because the INS has bungled its job and because it
frustrates us by its failures and ineptitude, Congress should not make
changes just to make changes or just to make a point. The changes need
to be measured against the immigration entity's roles and functions and
against its missions and goals. Form follows function in all things
including governmental reorganization.
The House bill strikes me as a step in the right direction and a
good faith effort to deliver to the nation an immigration agency
equipped for the challenges of the 21st Century. But, I believe the
bill drafted by the Chair and Ranking Member of this panel has
advantages over the House-passed measure, and the Conference Report
sent to the President later this session should reflect its basic
provisions.
The role, responsibility and authority outlined in the Senate bill
for the new Director of the Immigration Affairs Agency would seem to
give that individual greater opportunity and ability to develop,
implement and finance immigration policy than the House bill's
counterpart Associate Attorney General for Immigration Affairs. We have
had devoted and dedicated INS Commissioners over the years, but they
have lacked the ``clout'' to get things done. Both bills provide clout,
but the Senate bill delivers more.
While a separation of the INS service function from the enforcement
function is a foregone conclusion--and a desirable one--and while
allowing the head of each function to exercise authority and make
decisions is important, these decisions must be coordinated between the
two branches and with the agency head and must be compatible with the
immigration entity's overall mission. In other words, the new
immigration system needs separation between functions but not such
separation that a coordinated mission is impossible. And, the leaders
of the branches need more authority, but not so much that they
undercut, conflict with or muddle the immigration entity's policies.
The key to success in any mission, public or private, is for the
leader to have the ability to marshal human and financial resources for
the tasks at hand. The final INS reorganization plan must guarantee the
Director, Associate Attorney General, or, Secretary such budgetary and
personnel (``hire and fire'') authority as today can be allocated to a
government official. Having such authority--which seems to be more
present in the pending Senate bill than in the House-passed measure--
gives the holder command and control as well as access to the ``bully
pulpit'' and with it the chance to lead national debate on immigration
issues and to help form national immigration policy.
Mr. Chairman, I recommend that Members and staff refer to the 1998
study done by the then-Migration Policy Program (today, the Migration
Policy Institute), entitled ``Reorganizing the Immigration Function.''
It summarizes the areas of need calling for INS reorganization to be:
<bullet> Lack of Policy Coherence
<bullet> Inadequate Attention to Customer Service
<bullet> Unequal Priority and Attention to Service and
<bullet> Mission Overload
<bullet> Lack of Accountability
I suggest, Mr. Chairman, that these remain the issues which any
reorganization plan must address and ones which I am sure this
committee will address. I specially call to attention to the policy
coherence element. Ambivalence marks today, as it has for decades, our
national immigration policy. This ambivalence--this conflictedness
between open borders and closed borders, between more and fewer,
between evenhandedness in selection and a point system to reward
skills--has hamstrung the INS and the other agencies of government in
doing their jobs well. They often do not know what their superiors and
the people of America through the Congress want them to do.
Mr. Chairman, we have to take up this debate on what our
immigration policy should be sooner rather than later. Reorganization
alone cannot overcome this ambivalence and uncertainty. So, leave
flexibility in your plan so the new immigration entity and its leaders
can adjust the form to fit any new function mandated.
Attached to my statement, Mr. Chairman, is material I asked Mr.
Dennis Clare to prepare. He is an attorney in Louisville specializing
in immigration law--and a friend with whom I occasionally practice a
case. Since, in the final analysis, reorganizing the INS is meant to
produce an agency which can handle better the immigration caseload and
since this caseload is actually people not numbers, and since attorneys
are those who represent these people, Mr. Clare's thoughts on how the
ultimate system should work--from the people standpoint--could be
helpful to the Committee.
Finally, Mr. Chairman, I am sure you and your colleagues will keep
foremost in mind that the exercise here is not some Rube Goldberg-ish
effort to move the boxes around and to connect the dots. It is an
exercise in developing a federal agency equipped to handle effectively
and efficiently immigration-related matters which affect people--not
machines, not numbers on a page, not statistics in a year-end report--
but men, women and children who often encounter these problems in
coming to America, in working here, in raising families here, in
writing new chapters of the American Dream here.
So, whatever the Congress and the Administration do will have
desperate importance to people--simple people, hard working people,
people with a dream, people like my late father, Romano Mazzoli, and
people, Mr. Chairman, such as those 300 persons from sixty lands of the
world who gathered in Faneuil Hall March 28 to be sworn-in as newly
minted U.S. Citizens and who, courtesy of Magistrate-Judge Neumann,
were led in their first Pledge of Allegiance to the Flag of the United
States of America by our 9- and 7-year-old granddaughters, Katie and
Courtney Doyle.
I am sure this new group of immigrants will contribute, achieve and
overcome as earlier generations have. How can I be so sure? Because I
saw it in their eyes. Because I heard it in their voices.
Mr. Chairman, I commend you and your colleagues to your task of
reorganizing the Immigration Service while always bearing in mind for
whom it is we are undertaking this task.
Senator Kennedy. Thank you very much. Well, that is very
compelling testimony and we thank you. You have obviously lived
this issue and feel deeply about the different components.
There have been a number of suggestions, as you referenced
in your testimony, about the law enforcement aspects, and there
have been some who have said we ought to coordinate Customs,
Border Patrol, and INS, and everything ought to be coordinated
in one place, and then the services in the other.
You talk about the importance of having a coordination of
the services and the law enforcement, and you also emphasized
the importance of a significant role for the head of the INS,
line responsibility, and that that be an individual who is held
accountable, but also has the capability to interpret the laws
and be able to lead the country on these issues.
Why is it so important that the enforcement and service
components be at least coordinated? No one is questioning the
importance of having good institutions in both of these areas,
but I am interested in why it is important from your point of
view.
How do we answer people who say what we really need is
let's get all the border and security issues sort of
coordinated and then we will worry about the service aspects
over here, and if they talk to each other, good? Why do you
think in terms of immigration policy it is important to
coordinate?
Mr. Mazzoli. Mr. Chairman, I served, as you mentioned
earlier, some 12 years as Chair on the House side of the
Immigration Subcommittee and I saw enough to prove to me that
while we need to have separation and there should have been
separation maybe years ago, the reality is that we need to have
these two sides being able to work together.
I think if you lumped all of the enforcement on one side
and put a firewall of some sort between them and gave them a
mission that was maybe different than the overall mission of
the Immigration Service in coordination with the service side,
then I think you have missed it.
One of the things that I am concerned about, and I am sure
it will be talked about often in the next several days and few
weeks, is the fact that there is some thought about putting
everything, Customs and all sorts of aspects of this, into one
overall homeland security thing. While that may make some sense
in a way, it obviously concerns me in that there would not be
this ability for the two sides to work together toward a common
mission.
I think that would be the idea. There has to be a common
mission, and we, of course, the people of the country, have to
settle what that mission is through the members of Congress.
But on the other hand, once that mission is settled, I think
unless you have the ability to work together and function
together, with certain separation, you might not be able to
achieve that mission.
Senator Kennedy. Senator Brownback?
Senator Brownback. You chaired the subcommittee for a
number of years. Did you take this topic up in legislation? You
mentioned the earlier working group that brought this up. If
so, what walls did you hit at that point in time?
Mr. Mazzoli. I had left Congress by 1998, when this report
was filed, but we had talked about it often, a reorganization.
But I think what happens is you have inertia, you have this
ambivalence again in the mission, and all of that seems to
defeat any effort to reorganize within the agency. So we took
up measures that would have made these profound changes and the
measures were never really adopted.
Senator Brownback. Measures similar to what you are seeing
in the bill that we have put forward here?
Mr. Mazzoli. Yes, exactly. This always appeared to me to be
the way to go, the way you and the Chairman have introduced,
would be to have separation of function, to have some authority
at the head of these separated functions, have those
individuals responsible to one who himself or herself has
clout.
One of the concerns I have about the House bill--and others
might testify more knowledgeably than myself to that bill, but
it concerns me that a third person in the rank of attorney
general in the Justice Department may not have that kind of
clout or visibility or power or authority or sway that I think
that individual has to have to do two things.
One is to run the agency, whatever the agency looks like
when you hit the conference report, but also to keep in mind
that that function is going to be changing, because this debate
goes on. In Kansas, in the Courier-Journal, the lead story of
the particular day was the fact that the House passed the
reorganization bill for INS. This is not Miami, this is not
L.A., this is not Chicago or New York or Boston. This is
Louisville, Kentucky, which suggests, as in Kansas, that this
is becoming an issue in the heartland. This is an issue all
over.
So the people of America will be involved in establishing
what the mission of this new agency will be, and so the
director needs to have authority and needs to have an ability
to convince people in Government, as well as to carry the
discussion in a nationwide setting, as to what exactly our
immigration policy will be. Is it open borders, closed borders,
more people, fewer people, trained people, untrained people?
Until that message is clear, it is pretty hard for the INS even
today and in the future to follow through.
Senator Brownback. I agree with you on that, obviously. In
putting forward the bill, I think the importance of with what
immigration is and what border issues are and the significance
of those, you need to get somebody of a stature that can be
able to voice a position, and that is what we are trying to
create, this position that is along the lines similar to the
head of the FBI. We have that forward as well.
Mr. Mazzoli. If I might mention something Senator Feinstein
said that I think is on target, it is in my prepared statement
but not in my opening remarks, and that is I think some sort of
hire/fire authority--whatever you can give in this day and age
of organized Government, that sort of hire/fire authority must
be given to this individual because that individual will simply
be hampered, hamstrung, and completely unable to perform the
full function.
Unless you can get people in there and move them around,
not capriciously and not without attention to their human
rights and civil rights----
Senator Brownback. Due process.
Mr. Mazzoli. I think, Senator Brownback, very much that
there ought to be some real new approach that you might take in
this final effort to give that individual more control than
maybe his or her counterparts have in Government today.
Senator Brownback. Thank you, Mr. Chairman.
Senator Kennedy. Senator Leahy, our chairman.
Chairman Leahy. Thank you, Mr. Chairman. I am glad you and
Senator Brownback are having this hearing. Of course, it is
great to see our friend, Congressman Mazzoli, back here. The
chairman and I joke periodically about my mixed heritage. Your
comment about your parents raising their hand and taking the
oath--I think of my mother's family coming here from Italy, how
they must feel, or my wife's family coming here from Canada.
We talk about the INS. There are a lot of great employees
there, as we know, whom we have to use to get a handle on this
problem, and there are problems. I know that the Eastern
Service Center in St. Albans, Vermont, has done a great job
providing immigration services and trying to weed out those who
fraudulently seek it. But their workload keeps increasing, so
much so that I think they took the cafeteria and turned that
into additional work space. They have had a number of people
working out of their homes to do it.
The Law Enforcement Support Center in South Burlington,
Vermont, provides criminal background information about aliens
to all of our law enforcement agencies. It is on duty 7 days a
week, 24 hours a day. Interestingly enough, one day when we had
about a 14-inch snowfall overnight and people wondered if it
would still be open, they said, of course, it was. I mean, it
was 14 inches, not 40 inches. That is no real problem in
Vermont. We have the Swanton Border Patrol Sector, and so on.
What I worry about is I don't want to see a reorganization
for the sake of having a reorganization. I know partly out of
frustration, the House bill passed heavily. But I think, for
example, asylum seeks need more protection than they have, and
I was glad to see that Senator Kennedy and Senator Brownback
introduced new legislation today which I think covers some of
the problems.
You made reference to this in your testimony now, and in
your written testimony more about it, that sometimes INS
employees get so many conflicting directives, both from their
superiors and from Congress, that they are not sure just what
it is they are supposed to do.
How do we get a hold of that?
Mr. Mazzoli. Senator Leahy, first of all, I thank you for
bringing up the fact that we partly share a common heritage. I
am happy to say that we even actually are distantly related. I
always at least like to say that.
Chairman Leahy. I would be proud of it.
Mr. Mazzoli. So would I.
How do we get our hands around it? I think it is going to
be something that the current members of Congress and maybe
people like me who were here and who have a background in the
field will have to become involved in. We want to certainly
avoid the term that Senator Brownback used, ``xenophobia.'' We
don't want to be xenophobes. On the other hand, sometimes Al
Simpson was fond of saying that you can't just talk about this
issue quoting Emma Lazarus and the ``New Colossus'' all the
time, either way.
So I think that, first of all, you have to have sensible
people, thoughtful people who will engage themselves in a long-
term effort to decide what is going to be in the national
interest, what is going to be the way that we can remain a
strong, vibrant Nation economically, socially, morally, and
politically.
It is not easy because it deal with numbers, it deals with
family relationships, it deals with job skills, it deals with
language skills, it deals with demographics. But in the last
analysis, I have the confidence, having worked with this for a
long time and having worked with people like Peter Rodino and
Ham Fish and people like Jerry Tinker and others who led us in
the early 1980s--I have a belief we have people in this Nation,
Senator, who can be involved in that and would happily help to
move this debate forward.
I think the only way we can help INS help itself is
certainly by reorganizing it, giving it modern tools, whatever
the agency is going to be named. But in the last analysis, we
have to be sure to give it a clear-cut mission and mandate and
a series of definable goals and a timetable to reach them. That
is not easy, but I think it is something that this individual
who will head up this agency can at least begin doing.
Chairman Leahy. They have law enforcement and also
immigration services, and you can't rob one to support the
other. You have got to have adequate resources in both.
Mr. Mazzoli. That is exactly right, and you brought up
something that is important and I would like to extend it just
a little bit further, and that is the fact that processing the
paper is not what you would call in a career sense sexy work.
Enforcement is, and I think somehow we have to make the
processing of paper, the adjudication phase of it, the service
to the public phase, as important, as rewarding, and as
rewardable as doing something at the border.
Beyond that, I think with regard to the Consular Service,
Secretary Ryan is one of my great friends. I think she is one
of the great people in Government of all time, but people in
the Consular Service don't always get the attention they need
to get within their own cones, as they call them, for their own
career advancement.
So in a parenthetical sense, anything that can be done to
raise the stature and status of consular officers who are doing
this work abroad--they are the first point of defense, if you
will, to our homeland right there in some foreign capital.
That, along with raising the stature and status of people who
work in the service sector of this new agency, I think would be
extremely helpful both in eliminating backlogs, but also in
making sure that the funds, as you say, are adequately
disbursed and allocated.
Chairman Leahy. Thank you very much, and thank you, Mr.
Chairman. Attorney General Ashcroft is downstairs. We are doing
an Appropriations Committee meeting on the same thing, and I am
going to go back down there.
Senator Kennedy. Thank you very much.
Mr. Mazzoli. Thank you. It was great to see you, Senator.
Senator Kennedy. The good Congressman wanted to be out at
3:15, so we have 5 minutes left for Senator Feinstein and
Durbin. I apologize to them, but we thank you so much for being
here.
Senator Feinstein. I just want to thank you for caring
about this and being here today. It is very much appreciated.
I was just reading a CRS analysis of the various proposals
that have been put forward, and one of the things that CRS says
about creating two separate bureaus is that the service bureaus
have always been essentially fee-driven, while the enforcement
bureaus essentially appropriations-driven. You alluded to that.
Mr. Mazzoli. Yes.
Senator Feinstein. You really want to have equal branches
here, if there is going to be a division. CRS seems to say that
it could create some problems by having separation because to
run the adjudication, let's say, for naturalization, you have
got to do the background checks which require the Enforcement
Division.
How do you see that working?
Mr. Mazzoli. I am not sure I see it any way more vividly
than the people at CRS do. It is murky. We will be feeling our
way through, and I think that is why it is important to have
coordination, to get back to Senator Kennedy's earlier question
about putting all enforcement in one box and all service in the
other box.
They work together. Whether it is a situation at the border
or whether it is a situation in the interior or whether it is
the processing of a piece of paper, both sides have to be able
to work together and talk with one another, despite any sorts
of firewalls you might build.
You shouldn't necessarily totally abandon fees. That is all
part of it, and service to the public. If it is a worthy
service and done timely, it is worth something, but clearly
just to have it by fees alone diminishes that aspect of the
work. It makes it not of the same stature, if you will, as
where you get appropriations from the Appropriations Committee.
So I would think that the final outcome here will be more a
look at appropriations, more a pooling of money, even though
you have separated agencies. This is where the important thing
that you have in your bill is, is the director has budget
authority, which I don't think is in the House-passed version,
or at least not to that extent, so to give that budget
authority. And then the disbursal and the allocation can be
more easily made between fees and appropriations so that you
don't abandon either one of them.
Senator Feinstein. Just quickly, another thing that I think
was very disappointing to some of us was that there are 4 to 5
million biometric border-crossing cards. The border-crossing
cards were actually given to people, but the readers were never
put in place.
It seems to me, from a management perspective, don't
distribute the cards until you have the system in place able to
function so that the cards function. They don't really function
in the way they are supposed to, and so I am very grateful for
the comments you made with respect to management because we can
reform the system and have the same problems unless we are
really able to bring in modern management techniques of setting
goals and holding people responsible for achieving them.
Mr. Mazzoli. This may be something new and different for
Government. You may be on the verge of doing something that
hasn't been done in Government reorganization up to now. It is
not going to be easy, but I think it is very important.
Senator Feinstein. Thank you very much.
Senator Kennedy. Senator Durbin?
Senator Durbin. I don't want to hold you if you have to
leave.
Mr. Mazzoli. I do, but I would be happy to answer any
questions.
Senator Durbin. I will be very brief. Thank you for being
here.
Mr. Mazzoli. Well, thank you very much. It is always good
to see you.
Senator Durbin. Ron Mazzoli's name has been synonymous with
a thoughtful approach to immigration for decades and your
service to Capitol Hill, and we are glad that you are with us
today.
I think one of the observations which I have made and I
think you would agree with is that technology has to be a major
part of improving the service at the INS. One of the most
stunning things I learned as a United States Senator
representing 12.5 million was that 75 percent of my case work
involves one agency, the INS.
This is the only agency where I can consistently expect at
least one call a month that I have to make to the commissioner
to deal with a problem that I can't resolve otherwise. I can't
say that for any other agency of the Federal Government.
Mr. Mazzoli. I think if there is anything that sticks in my
mind after all these years is the number of hearings we had,
which are legion, on this whole issue of mechanization, of
using electronic devices. Somehow, nothing ever seemed to quite
get done, so whatever you do has got to be strongly assertive
in this area of using modern-day technology.
It seems to me that there is no reason why we are in this
predicament that we are in today, and a good leader with the
proper management tools would be able to move the agency
forward.
Senator Durbin. I really dislike this stovepipe cliche, but
it seems to be an apt characterization, where we don't have
agencies in communication with one another. It is hard to
criticize what happened on September 11 when we realize that
there was literally no computer communication between the FBI
and most of the other agencies. That has to change if we are
going to do this in an effective manner.
The last point I will make to you is this: I hope we don't
over-sell what we are about to do. As important as it is and as
good as it is, America is still in a struggle somewhere between
love and loathing when it comes to immigration, depending on
the economy, depending on terrorism.
We have to really come to grips as a Nation with where we
are headed. I don't think we are looking at it honestly and
realistically. In fact, I think we avert our eyes from the real
problem. You didn't, and as a leader with Senator Simpson you
really brought us all to the point where we started thinking
about it more seriously. I thank you for joining us today.
Mr. Mazzoli. Thank you very much, Senator. I appreciate it.
Senator Kennedy. We kept our word. You are going to get
back there. We thank you so much.
Mr. Mazzoli. Thank you.
Senator Kennedy. As we move along, we will consult with you
because we value very much your presence and your friendship
and your continuing involvement.
Mr. Mazzoli. Thank you so much.
Senator Kennedy. I will excuse you, and if you come right
through here, we have got someone who is all set for you.
Mr. Mazzoli. Thank you very much. I appreciate it. It is
nice to be here.
Senator Kennedy. Thank you very much for being here.
On our next panel, Paul Virtue is a partner with the law
firm of Hogan and Hartson, at which he represents individual,
business, and institutional clients related to immigration law
and policy. He has more than 18 years of experience in
immigration law, policy, and regulation. Before joining Hogan
and Hartson, he served as General Counsel of the Immigration
and Naturalization Service, where he served as the agency's
chief legal officer.
Stephen Yale-Loehr is with the American Immigration Lawyers
Association. He is the co-author of ``Immigration Law and
Procedure,'' the leading 20-volume treatise on immigration law
which is considered the standard reference in this field of
law. He also teaches at Cornell Law School. Previously, he
worked in immigration policy at the Carnegie Endowment for
International Peace. He is co-editor and executive editor of
two leading immigration law newsletters.
They are both highly respected in their fields and I am
pleased they are here with us today to share their insights on
this important subject. I thank the witnesses very much for
being here.
Mr. Virtue, do you want to start?
STATEMENT OF PAUL W. VIRTUE, FORMER GENERAL COUNSEL,
IMMIGRATION AND NATURALIZATION SERVICE, WASHINGTON, D.C.
Mr. Virtue. Mr. Chairman, distinguished members of the
committee, I am honored to be here today to offer my thoughts
on the efforts to improve the structure by which our
immigration and nationality laws are administered.
As I mentioned in my written testimony, after having left
the Immigration Service my practice is limited to immigration
and nationality law. The majority of that involves filing
petitions, filing applications for benefits before the
Immigration and Naturalization Service, as well as the
Department of Labor and the Department of State.
But also, for our firm at least, we represent a significant
number of people on a pro bono basis who are in detention
facilities who are appearing before immigration judges in
immigration court. Nobody really practices in this area for
very long without having spent a significant amount of time on
the telephone with enforcement personnel at the ports of entry,
usually in the begging in the position. So we have a great deal
of exposure to both the adjudications responsibilities of the
Immigration Service as well as the enforcement areas.
My written testimony talks about the mission of the agency
and the numbers and just the daunting task that the agency
faces. So I won't repeat that here, but it is there and I think
the committee well recognizes it.
In my view--and these are my thoughts; they don't represent
the views of the firm--any restructuring plan has to have
certain components in order for it to accomplish the goal. The
goal that I think a restructuring plan should have is an
organization, as I mentioned, that will operate with a clearly
defined mission, and that mission developed with its customers'
needs in mind, administered in a fair, prompt--I can't oversize
prompt--and consistent manner, and just in terms of those
components, a clear line of authority and accountability.
As you all know, the INS has more than doubled in size
during the last 10 years, to about 37,000 employees, and the
agency may add as many as 10,000 more employees over the next
couple of years. The goals of consistency and accountability
would be impossible to achieve in such a large and diverse
organization without a clear understanding from the head of the
agency down to the clerk in the mail room of who is in charge
and who has responsibility for what issues--very important and,
in my opinion, critical to the running of the agency.
I have talked in my written testimony about our experience
in 1990 with an organizational structure that had all field
offices reporting directly to one person in headquarters. The
scope of responsibility was dramatic and, in fact, it simply
didn't work. Calls to headquarters went unanswered and it was
difficult to have clear direction in policy under that
structure. It was abandoned, but it does serve as an example of
how a change in the management structure of the agency can have
substantial consequences for lines of authority and the
establishment and implementation of policy.
The proposed division of the INS into service and
enforcement bureaus will have a substantial effect on the
management structure of the agency at the field offices, those
people who are closest to the agency's customers. I believe
that that is consistent with the committee's goals and with the
goals of focusing attention and resources on the business of
enforcing and administering the country's immigration laws.
A second component has to be the coordination of policy
guidance, as Congressman Mazzoli mentioned, between service and
enforcement components. For consistent administration of
immigration policy, both functions should be retained in a
single agency under the leadership of a strong director with
the all-important budget authority and accountability to both
the Attorney General and the oversight committees for the
responsibility of establishment and implementation of that
immigration policy.
One example that I gave in the written testimony was of a
regulation that was recently proposed to change the structure
by which people who enter the U.S. as visitors are granted
periods of stay here. The standard period of stay is a 6-month
stay under the current regulations. The proposal is to
eliminate that and make it more consistent with the stated
purposes the individual has for entering the United States.
I have pointed out here how that can affect both the
inspection process which is under the INS restructuring
proposal and the enforcement function, and I think most people
have accepted that. Yet, the same policy will be applied by INS
examiners at the field level. So there has to be coordination
so that the implementation of such a policy can be consistent
at the field level.
The other aspect of that, of course, is just to get to the
point where the Immigration Service proposes such a change in
policy requires at the headquarters level coordination between
services and enforcement even to publish for a regulation for
implementation.
Also, in terms of national policy we need to be able to
speak with one voice. We need to have an agency that speaks
with one voice with respect to immigration policy. For example,
in the aftermath of the September 11 events, we saw a number of
examples of anti-immigrant sentiment on our campuses, in the
workplace, on numerous occasions.
It was important during that time and in that atmosphere
that the INS and the Justice Department send a strong
enforcement message--everyone accepts that--but at the same
time continuing to facilitate entry and provide services for
millions of law-abiding foreign nationals who are very
important to our Nation. That, in my view, can only be done
where you have strong leadership within one agency.
The third component is structural flexibility to meet
unanticipated or unforeseeable challenges. The House bill that
was passed, in my view, goes too far in terms of dictating the
structure below the headquarters level. On a quick read, the
bill introduced by the chairman and Senator Brownback would
seem to strike the proper balance of congressional direction
and organizational flexibility.
The fourth aspect has to be an integrated and shared
information system, and few aspects of the INS really reflect
its problems like the inadequacy of the agency's information
systems. The INS is embarked on a modernization program and it
has to receive the resources and the flexibility to build that
modern system.
Finally, adequate funding and staffing levels for both
bureaus. As mentioned earlier, the INS has doubled in size over
the last 10 years. The agency from all sources is in excess of
$6 billion. When compared to other Federal agencies the INS
growth has been dramatic, but we also need to compare that to
the increase in workload of the INS. When you compare that, I
think we will see that the agency has had a difficult time
simply keeping up, and so much attention has to be paid to
providing the resources to both of these bureaus in order to do
the job.
For example, on the enforcement side there are still only
about 2,000 investigators with interior enforcement
responsibilities for the entire country. I have given an
example in my written testimony about premium processing just
as an example of how focusing resources on a particular issue
can pay benefits. The program is working very well. I am not
suggesting that it be applied across the board, but it is an
indication of how resources can pay benefits.
Again, I have outlined a number of principles in the
written testimony. I appreciate the opportunity to be here and
will be happy to answer any of the committee members'
questions.
[The prepared statement of Mr. Virtue follows:]
Statement of Paul Virtue, Former INS General Counsel, Partner, Hogan &
Hartson, LLP, Washington, D.C.
Mr. Chairman and distinguished Members of the Subcommittee, I am
honored to be here today to offer my thoughts on efforts to improve the
structure by which our immigration and nationality laws are
administered. Currently, I am a partner with the firm of Hogan &
Hartson, LLP here in Washington and my practice is limited to
representing clients in immigration and nationality matters. Prior to
returning to the private practice of law three years ago, I served as
the General Counsel of the Immigration and Naturalization Service, an
agency in which I held several legal and policy making positions during
my sixteen-year career. My testimony today represents my own thoughts
and observations and does not necessarily represent the views of my
firm.
Immigration policy is among the most sensitive, emotional, and
potentially divisive issues the federal government is charged with
administering. The numbers of people involved are staggering. In fiscal
year 2000, some 900,000 permanent residents were naturalized. Nearly
850,000 people immigrate to this country each year. Another quarter of
a billion foreign nationals visit the United States annually. Some five
million or so undocumented aliens call the United States their home.
Our agricultural, construction, manufacturing and service industries
depend on foreign labor, documented and undocumented alike. During
fiscal year 2000, over 71,000 criminal aliens were removed from the
United States. Fifteen of the nineteen foreign nationals directly
involved in the devastating terrorist attacks of September 11, 2001,
were believed to have been inspected and admitted to the United States
as visitors or students by the INS.
The federal agency with primary responsibility for these and a host
of related issues, the INS, has not undergone a fundamental change in
its structure for the more than fifty years since it became a part of
the Department of Justice. Restructuring alone will not cure the
agency's ills--many of which are not a product of the agency's
structure--but restructuring alone can make matters worse. Accordingly,
I recommend proceeding carefully, thoughtfully and deliberately. Any
restructuring proposal should have as its goal an organization that
will operate with clearly defined mission objectives developed with its
customers needs in mind and administered in a fair, prompt and
consistent manner.
To accomplish this goal the plan should contain certain fundamental
characteristics:
<bullet> 1. Clear lines of authority and accountability;
<bullet> 2. Coordination of Policy Guidance between Service and
Enforcement Components;
<bullet> 3. Structural flexibility to meet unanticipated or
unforeseeable challenges;
<bullet> 4. An integrated and shared information system;
<bullet> 5. Adequate funding and staffing levels.
I do not claim to be an organizational expert or to have the
definitive answer to the structural problems of the INS, but I have had
the privilege of serving in senior agency positions with responsibility
for the development and implementation of policies that cross the
agency's enforcement and services functions. I have also now had
several years of experience representing clients before an agency
widely criticized as being ill suited to its mission. It is from these
perspectives that I offer my thoughts.
CLEAR LINES OF AUTHORITY AND ACCOUNTABILITY
The INS has more than doubled in size during the last ten years, to
about 37,000 employees. The agency may add as many as 10,000 more
employees over the next 18 months. The goals of consistency and
accountability are impossible to achieve in such a large and diverse
organization without a clear understanding from the head of the agency
to the mailroom clerk in the Texas Service Center of who is responsible
for a given program at every level. In 1990, the INS experimented with
a structure that eliminated middle management (the regional offices)
and flattened the reporting structure so that each District Director
and Chief Patrol Agent reported to one individual at a headquarters
office of Field Operations. The scope of that individual's
responsibility encompassed the entire mission of the agency. The stated
purpose of this approach was to remedy the perception within the
administration and in Congress that the INS District Directors and
Chief Patrol Agents were being left to fend for themselves by weak
middle managers resulting in operational ``fiefdoms'' with as many as
55 different immigration policies.
In this case, however, the cure proved to be worse than the
disease. Predictably, the scope of supervision of the Associate
Commissioner for Field Operations was simply too great. Requests by
field managers for policy guidance, resources, approval of operational
plans and other information overwhelmed the headquarters office. Phone
calls and written requests from the District Directors went unanswered
and their subordinate program managers began to look to the individual
headquarters program offices, e.g. Investigations, Detention and
Deportation, Examinations, for answers to their operational and policy
questions. Though they lacked supervisory authority over the field
offices as well as the means to ensure accountability, the program
offices tried their best to accommodate the need for information. The
result was a weaker management structure lacking in accountability and
administrative chaos. The experiment was ultimately abandoned in 1993,
when the regional office structure was reinstated.
None of the proposed reorganization plans has suggested a return to
such an unwieldy management structure, and we need not dwell on it, I
simply offer it up as an example of how a well-intentioned change in
management structure can make matters much worse. The proposed division
of the INS into service and enforcement bureaus will have a substantial
effect on the management structure of the field offices, those closest
to the agency's customers. This is consistent with the noble goal of
focusing attention and resources and clarifying mission goals and
priorities. I believe it can be accomplished only with a clearly
established chain of authority and the careful selection of capable
leaders for all critical management positions.
COORDINATION OF POLICY GUIDANCE BETWEEN SERVICE AND ENFORCEMENT
COMPONENTS
It is logical to propose to divide the agency's functions along
service and enforcement lines. This approach is also consistent with
existing internal delineations. However, it would be impossible (and
unwise) to try to build a solid wall that divides the two functions.
There will always remain many overlapping areas of responsibility
between the service and enforcement bureaus. A recently proposed rule
illustrates this point well. In response to concerns about the agency's
ability to monitor and control the alien population in the United
States, the INS last month proposed to change its longstanding policy
of granting business visitors and tourists a standard six-month period
of stay, irrespective of the purpose or nature of their visit. The
regulatory six-month period will be replaced with a period of stay that
is ``fair and reasonable for the completion of the stated purpose of
the visit.'' Inspectors at the ports of entry will make this
determination on a case-by-case basis at the time of admission. If it
is not clear whether a shorter or longer period would be fair and
reasonable under the circumstances, the alien will be admitted for 30
days. Once admitted, the visitor may apply for an extension of stay,
which may be granted for a fair and reasonable period not to exceed six
months. Applications for extensions of stay are adjudicated by INS
Examiners.
The restructuring proposal offered by the INS would place the
immigration inspectors within the enforcement bureau and, while
applying the enforcement label to inspectors has been the subject of
considerable discussion in the past, the current significance of their
role in protecting the country against the admission of terrorists
seems to have quieted the debate. INS Examiners are considered services
bureau employees under any proposal. Thus we have two categories of
employee employed by two separate bureaus applying the same regulation
to the particular circumstances of the same individual. The need for
policy coordination is readily apparent. For example, the enforcement
bureau may decide that, for efficiency reasons, it will give every
applicant a thirty-day stay preferring to allow the examiners look at
the particulars of each case in the course of adjudicating the
extension petition rather than backing up port of entry traffic by
trying to apply a new set of complicated criteria. The predictable
result would be a flood of extension applications being submitted to
the services bureau leading to an inevitable backlog.
This is just one of thousands of examples. Many disputes may be
amenable to resolution at the field office level, but for agency-wide
consistency and accountability there must be provision for coordinating
policymaking and implementation at the headquarters level. In addition
to structural obstacles to policy coordination, the INS, unlike the
State Department, lacks a repository for sub-regulatory policy
memoranda and field guidance. Agency clearance of field manuals, which
were intended to replace the outdated INS Operations Instructions, has
been slow. In fact only one, the Detention Operations Manual, is
available on the INS website. Issues such as this one should be fixed
as they contribute to a public perception that the agency is
unresponsive to the need for answers to policy questions.
STRUCTURAL FLEXIBILITY TO MEET UNANTICIPATED OR UNFORESEEABLE
CHALLENGES
Congress should exercise restraint in the level of detail in which
it directs a new structure for the administration of the immigration
and nationality laws. Currently, the Immigration and Nationality Act
contains no language dictating the structure of the agency save a
relatively recent exercise of congressional will that directs the
Attorney General to allocate to each State not fewer than 10 full-time
active duty agents of the INS to carry out the functions of the
Service, in order to ensure the effective enforcement of the Act. The
structure of the agency is left, with the exception of a certain amount
of overreaching reflected in the authorization and appropriations
processes, to regulation by the Attorney General.
To the extent possible, this approach should be maintained.
Detailed Congressional direction on the structure of field offices, in
particular, can reduce rather than enhance the agency's ability to
adapt to new challenges, including demographic changes. Personally, I
believe that the services bureau field offices should be sufficiently
flexible to serve the particular community they serve. In some
locations, that may mean small storefront offices designed to address
certain needs. In other communities, perhaps a larger full-service
operation is needed. The agency has to have the freedom to make such
choices, preferably taking into consideration the views of its
customers.
AN INTEGRATED AND SHARED INFORMATION SYSTEM
Few aspects of the INS reflect its ills like the inadequacy of its
information systems. The agency is embarking on an unprecedented effort
to modernize its office equipment, install and integrate sorely needed
enterprise architecture, improve data capture and sharing capacities
and harness the fascinating array of technological tools needed to
improve the delivery of services and enhance its law enforcement
activities. The importance of a Chief Information Officer with budget
authority and responsibility for technology improvement for both
bureaus cannot be overstated.
ADEQUATE FUNDING AND STAFFING LEVELS
As noted earlier, the INS has doubled in size during the last ten
years and is poised to grow by another 10,000 employees during the next
year and a half. The agency's budget from all sources is in excess of
$6 billion. When compared to other agencies during the same time
period, the growth of the INS has been phenomenal. However, the INS had
and still has a long way to go to catch up and when compared to its
workload, the agency has struggled to keep up. The INS still has only
2,000 investigators to handle interior enforcement responsibilities for
the entire country. On the services side, applications for adjustment
of status can still take two years or more to complete.
Last summer, the INS introduced its new ``Premium Processing''
program. For a premium of $1,000, the INS guarantees a response within
fifteen calendar days on certain business related nonimmigrant visa
petitions. I cite this program not to suggest it as an answer to
backlogs, but it is a perfect example of what is possible with the
focused application of resources. Indeed, one goal of the service
bureau should be to retire the premium process in favor of a much
faster standard process.
CONCLUSION
The dual missions of the INS are important and they affect millions
of people. The Congress should exercise great care as it undertakes to
outline structural reforms that will enable the INS or its
predecessor(s) to better accomplish those missions. I have outlined my
thoughts on several principals I believe to be essential to the
undertaking. I would be happy to answer any questions you may have
about those principals or any other related issues.
Senator Kennedy. Thank you very much.
Mr. Yale-Loehr, thank you very much for being here.
STATEMENT OF STEPHEN YALE-LOEHR, AMERICAN IMMIGRATION LAWYERS
ASSOCIATION, ITHACA, NEW YORK
Mr. Yale-Loehr. Thanks for inviting me.
My oral remarks are going to focus on three themes: first,
principles that should guide any INS restructuring effort;
second, an evaluation of how well various restructuring
proposals meet those principles; and, third, an admonition that
restructuring is not a panacea and that more must be done to
make our immigration system perform effectively. As you will
hear, a lot of my testimony coincides with our prior witnesses.
First, I believe that reorganization has to look at four
principles: first, appoint a high-level person with authority
to be in charge. As stated before, the person has to integrate
policymaking with policy implementation. Accountability and
leadership has to come from the top.
Second, coordinate the enforcement and adjudication
functions. As we all know, political consensus exists today to
separate the INS enforcement and adjudication functions. But
until this hearing, it seems to me too much attention has been
paid to separation and not enough attention has been paid to
coordination.
It is important because enforcement and adjudication are
two sides of the same coin. Almost every immigration-related
action involves both components. For example, a Border Patrol
person picks up someone at the border says, I think you are
illegal. The individual says, no, I am really a permanent
resident, but I don't happen to have my permanent resident card
on me.
What do you do? You need to coordinate the adjudication
side to see whether the person really is a permanent resident
before the enforcement side decides whether to kick the person
out or not. That is an example of how enforcement and
adjudication have to always work together, no matter what kind
of reorganization you do.
The third principle is that you have to provide adequate
resources for the two functions. As Representative Mazzoli
mentioned already, you have to have direct funding of
adjudications to supplement the user fees that are already
going on there.
Fourth, as we all realize after September 11, we have to
ensure that any reorganized immigration function contributes to
our national security. We are all aware of that from the
enforcement side of the immigration function, but we should
also pay attention to the fact that adjudication also has an
enforcement function, and some of that has been downplayed
until this hearing.
Next, I want to analyze pending reorganization proposals.
There are at least four types floating around in Washington.
The administration's proposal includes a strong Commissioner,
clear lines of authority, and separation, with coordination, of
the agency's enforcement and adjudication functions. Many of
these same concepts are in the bill that you have just
introduced and which I commend. But it is unclear whether the
administration wants to go forward with that proposal now that
it seems to have tepidly endorsed H.R. 3231, the House bill.
Second, homeland security chief Tom Ridge has proposed
consolidating some INS functions, including enforcement,
inspections, and the Border Patrols, with those of the Customs
Service. Members of Congress, including Senators Lieberman and
Specter, have either introduced or are considering introducing
measures that would create such an agency.
While enhanced coordination of border-related functions is
important, inter- intra-agency coordination would be harmed by
any proposal that splits off INS inspections and enforcement
from the entity responsible for overseeing other aspects of our
immigration system. As I mentioned before, it is essential to
have one person in charge of all immigration functions to
ensure consistency. A border security function that subsumes
the enforcement of immigration but which would be separated
from adjudications would lead to ineffective enforcement and
adjudication.
Third, H.R. 3231, the House bill which was recently passed,
has already been summarized here. I believe that the new
associate attorney general that would be created under that
bill would have insufficient authority, not enough clout, to be
able to adjudicate and be able to function effectively under
that bill. There is too little coordination between the two
bureaus that would be set up there to make that effective, in
my view.
Fourth, the Kennedy-Brownback bill. This bill, as you know,
would abolish the INS and replace it with an Immigration
Affairs Agency. I believe that this bill would get an A if it
was in my immigration seminar at Cornell Law School. It
separates and coordinates the enforcement and adjudications
functions. It has clear lines of authority and includes helpful
funding provisions. It is the only proposal that I have seen
that meets all the criteria that I have outlined above.
Last, I want to talk about going beyond reorganization.
Reorganization is just one component in making our system
effective. We need to think about, number one, clearing up the
backlogs before we can do any reorganization.
Number two, we have to have an effective reorganization
plan, but then we have to have the funding to make it work.
Third, we have to have effective implementation of the
reorganization plan, with clear management responsibility.
Fourth, I think Congress needs to weigh in and, as the
other witnesses have talked about, we need to have a clear
immigration mission statement. What does immigration mean to
our society? Once we get that clearly defined as a people and
as Congress, we can then give that to the immigration system to
make sure that it functions effectively.
It is a long road that we are going down. The immigration
agency did not become ineffective overnight. Any one bill will
not be able to correct all immigration ills. In my view,
however, the Kennedy-Brownback proposal is the best first step
on the long road that we have to take.
Thank you very much.
[The prepared statement of Mr. Yale-Loehr follows:]
Statement of Stephen Yale-Loehr, American Immigration Lawyers
Association, Ithaca, New York
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:
<bullet> 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.
<bullet> 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.
<bullet> 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.
<bullet> 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.
<bullet> 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.
Why we Need to Restructure the INS, and What Direction an Effective
Restructuring Should Take
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.
PROPOSED INS RESTRUCTURING PLANS
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:
<bullet> The Border Patrol picks up a suspected illegal alien.
He claims to be a lawful permanent resident, but does not have
his green card in his possession. The Border Patrol needs to
check his status with Adjudications before determining whether
to release or detain him.
<bullet> Immigration Adjudications receives a petition for H-1B
status and suspects fraud. The INS Service Center wants to
check on the employer's record with INS and determine whether
it has been found to hire undocumented workers in the past. The
Adjudications division would need to access enforcement records
to check on the employer's work site investigations records.
<bullet> An applicant for adjustment of status claims to have
no periods of unlawful presence. The Immigration Adjudicator
suspects otherwise based upon claimed dates of entry. Without
easy access to entry/exit records from Inspections, the
adjudicator cannot confirm her suspicions.
<bullet> There is a discrepancy regarding whether the physical
presence requirement in an application for Temporary Protected
Status (TPS) has been met. INS needs to examine entry
databases. Without easy access to those inspections records,
the application cannot be properly or efficiently adjudicated.
<bullet> An individual applies for a green card after marrying
a U.S. citizen. She arrived legally, but overstayed her tourist
visa. INS adjudications needs to check with the enforcement
branch to make sure there are no issues precluding her from
obtaining a green card.
<bullet> A Canadian computer systems analyst applies for a TN
visa at the U.S.-Canada border. He has a minor conviction from
20 years ago for possessing a small amount of marijuana. He
needs a waiver under INA Sec. 212(d)(3) to be able to enter the
United States. Under any reorganization, the service and
enforcement branches need to coordinate efforts to allow this
person entry.
These examples underscore the need for restructuring to be based on
the principles discussed below.
PRINCIPLES THAT SHOULD GUIDE INS RESTRUCTURING
AILA believes that any successful reorganization of the INS must be
based on the following four criteria:
<bullet> Appoint a high level person with clout to be in charge
of both the adjudications and enforcement functions.
<bullet> Coordinate the separated enforcement and adjudications
functions.
<bullet> Provide adequate resources.
<bullet> Ensure that a reorganized immigration function
contributes to our national security.
1. Appoint a high level person with clout to be in charge of both the
adjudications and enforcement functions. This person must
integrate policy making with policy implementation and lead and
coordinate the separate service and enforcement functions.
Accountability and leadership must come from the top.
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.
3. Provide adequate resources for the adjudications and enforcement
functions and ensure that direct congressional appropriations
are available to supplement user fees.
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.
4. Ensure that a reorganized immigration function contributes to our
national security.
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.
RESTRUCTURING MUST BE BASED ON RELIABLE INFORMATION
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 report repeatedly cites opinion as fact, appears to fault the
INS when the agency successfully detects fraud, and suggests that
simply because the agency has found fraud, such fraud is pervasive.
Phrases such as ``one official told us,'' ``views of INS officials,''
``district officials told us'' and similar attributions are repeated
throughout the report, with anecdotal data treated not only as fact,
but as pervasive fact. In addition, when citing to various instances of
fraud throughout the report, the GAO, instead of crediting the INS for
having mechanisms in place that have been successful in uncovering such
fraud, criticizes the agency for the existence of the problem. The GAO
could have concluded instead that current INS procedures to detect
fraud are working. At the very least, these procedures are not as
ineffective as the GAO alleges them to be. Finally, the report's tone
and conclusions do not reflect what the GAO itself admits, that the
``estimates provided by INS supervisors and managers were not based on
scientific studies.''
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.
The GAO report reinforces the need for someone in charge and a
reorganized agency that coordinates the two functions of enforcement
and adjudications. While not focusing extensively on INS
reorganization, the GAO emphasizes the importance of coordination in a
reorganized agency that separates the enforcement from the
adjudications function: ``Organizational crosswalks would need to be
devised to assure that the two primary functions were still being
effectively coordinated and balanced, that is that the enforcement
concerns were considered in performing service functions and vice
versa. Our intention is that these primary functions be coordinated and
balanced, regardless of how the agency is structured.'' (GAO report at
pg. 34). The GAO's recommendations also support the need for one person
at the top who has the authority to coordinate all activities and
goals. Such coordination, achieved both through the person in charge
and through the structure of the reorganized agency, is critical
throughout the INS.
Importance of Adequate Funding for Adjudications: The GAO report
was silent on one of the most important issues needing to be addressed:
the importance of adequate funding for the INS in general, and
adjudications in particular. While the GAO criticizes the agency for
doing too little to combat immigration benefit fraud, the Service has
not received adequate funding to undertake this task in a comprehensive
and effective manner. Especially in this time of enhanced security, the
INS needs the funding and technology that are critical for the agency
to do a good job. The report also raises concerns about the INS's
ability to balance its dual responsibilities of application processing
and fraud detection, and states that ``unless INS can devote additional
resources to processing applications, its efforts to expedite
application processing will mean that the quality of adjudication will
most likely be sacrificed.'' (GAO report at pg. 27). Again, the most
effective response to this concern is adequately funding the agency so
that the competing goals of quality and timeliness can be achieved.
Such funding must come from direct congressional appropriations that
would supplement user fees.
Importance of Enterprise Architecture and Information Technology:
The GAO report recognizes the importance of agency-wide case tracking,
information technology, and management capability to help ensure the
effective use of resources, and that necessary coordination occurs and
accurate immigration benefit decisions are made in a timely manner. The
INS, recognizing that the agency could achieve these goals through
enterprise architecture and information sharing, was moving in those
directions even before September 11. Since that date, the Service has
accelerated work in those areas, which will help ensure the quality of
adjudications as well as enhance our security efforts. Once again,
adequate funding will be critical to the ability of the Service to
develop and implement the needed improvements.
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.
Senator Kennedy. Thank you very much. You are asking a lot
to get that mission statement out which we can all agree on and
get through and it is a real challenge.
I am going to just come back to the coordination of the
border security agencies because this is one of the major kinds
of issues. You give the example of the individual who is caught
at the border and whether they are a permanent resident or a
trespasser into this country, and we ought to be able to make
that determination.
Why wouldn't someone be able to say, well, if you have
interoperable commuters on this, why wouldn't the enforcement
agency be able to make that determination? Why wouldn't they be
able to take the name of that person and plug it into their
computers and find out what the status of this individual is?
Wouldn't we get much greater efficiency if we brought all of
these agencies together rather than having them all out there
working in different ways at the border?
We are going to have this and we are going to have to deal
with it, and both of you are important authorities on this and
I would like to hear you.
Mr. Yale-Loehr. If I could answer first, I think that is a
very good question, but I think it is more than just records-
sharing that is important here. It is also policymaking and
implementation.
For example, if you had one agency that was in charge of
the border and another agency that was in charge of immigration
interior inspections and adjudications, you could have a
problem. For example, an asylum seeker who ended up coming at
the border and wanted to apply for asylum at the border would
be dealing with this border agency and they may have their own
policy as to whether a particular person would qualify for
asylum or not.
The exact same individual, if they were in the United
States and overstayed their visa and applied for asylum, might
have a different kind of outcome because of the policy that the
interior agencies have. So that is why coordination is
important, and I don't think any border agency that deals with
part but not all of immigration is going to be ultimately
effectively.
Senator Kennedy. Mr. Virtue?
Mr. Virtue. Another example would be the fact that the
inspectors at the port of entry who would be considered
enforcement officers also adjudicate waivers on a daily basis.
Many of the grounds of inadmissibility are minor ones and
people are eligible for waivers, and those are the same exact
adjudications being performed in our regional service centers
and right now in our district offices for grounds of
inadmissibility. The coordination and consistent application of
those policies is important and really requires coordination.
Senator Kennedy. Mr. Virtue, one of the differences between
the House and Senate bills is our treatment of the Office of
General Counsel and legal advisers in each of the bureaus. Both
bills have an Office of General Counsel, but the House bill
also has legal advisers in the bureaus.
How important is it for the general counsel to have the
authority to issue consistent legal opinions for both the
adjudication and enforcement functions of the agency, and that
these opinions are reflected in the policies and practices of
the agency?
Mr. Virtue. I think it is going to be critically important
because, as I mentioned, there are people proposed to be in the
enforcement bureau and people in the services bureau who are
administering the same law, and many times making decisions
based on the same policies.
Interpretation of that policy has to be centralized in
terms of the legal interpretation. We could have real problems
if you had different legal interpretations on the enforcement
side and the services side with respect to the same provision
of law or the same constitutional issue, very difficult issues
and ones that could lead to unnecessary hardship, first of all,
but also potential litigation and a real waste of time for the
agency. So I think it is critically important to have that
general counsel.
The general counsel also is responsible for supervising the
attorneys who appear in immigration court. Again, in
immigration court you are dealing with an enforcement issue,
but many times you are also dealing with requests for relief,
asylum, adjustment of status, cancellation of removal, and
other benefits that are being adjudicated both in immigration
court and elsewhere. So those issues also cry out for
coordination.
Senator Kennedy. Also, you warn that detailed congressional
direction on the structure of INS can reduce rather than
enhance the agency's ability to adapt to new challenges. What
are some of the potential pitfalls that we should avoid?
Mr. Virtue. One of the issues is simply that we just don't
know what future challenges there may be. Before September 11,
I don't think any of us could have imagined what we would have
to deal with, so there are those problems.
Also, I am not sure if it is necessarily pitfalls, but I
think an important aspect of flexibility is to have the offices
reflect the needs of the customers in a particular area, and
that may be different for different geographic areas, different
demographics. I can see in some places, for example, as I
mentioned in the testimony, where you might want to have a
small storefront office that is similar to a Social Security
office, for example, that provides primarily information.
In other locations, you may need full-services offices
because the regional adjudication centers or remote
adjudication centers can't deal with some of the issues, the
need for fingerprints or the need for positive identification.
So the agency should have the flexibility to design those
offices, hopefully with the customer's input in mind.
Mr. Yale-Loehr. If I could add a historical precedent that
you have all dealt with, and that is the legalization program
of 1986, I am not sure that if we had the House bill enacted
today that you would be able to do legalization without having
to re-legislate the whole purpose of the agency.
You had both enforcement and adjudication functions in
legalization. The agency had to deal with over 3 million
applications in a very short time frame. You don't want a
statute to say you have to do it a certain way, and have a new
program like legalization come down the pike and say, no, it is
not going to work. So I think that is why you have to have
flexibility in whatever structure you set up.
Senator Kennedy. Senator Brownback?
Senator Brownback. Thank you, Mr. Chairman.
Thank you for the grade on Senator Kennedy and my term
paper. We appreciate that, to be able to get an A together.
That was excellent staff work, too, I might point out.
I noted at the outset that the lead case work that I get in
Kansas in my offices--most people might think, well, okay, it
is veterans' benefits, Social Security, farm program payments,
something like that, and it is immigration work, by some
distance even, and a lot of it is poor communications,
backlogged cases. Why is this taking place?
Mr. Virtue, you used to be GC at the INS. Professor, you
are the most well-written person in the field in the country.
Why am I having that level of problems, structurally, from the
INS?
Mr. Virtue. Well, maybe I will take a shot at that one
first. I think, first of all, the information about pending
applications is not readily made available to the public. I
don't think that is a function of the agency not wanting to
make that information available. It is simply that the systems
aren't there to provide that information.
I depend in my practice a lot on the Web, on the Internet,
and getting information about a whole host of Government
agencies. The technology is certainly there for people to be
able to go to a Web site and get information about the current
status of their case, and that simply isn't available right now
outside of--well, it still isn't even available in the
naturalization area, but it can be. So I think that is probably
the single most important reason that immigration case work
leads the case work in your office, because of the lack of
information.
Senator Brownback. Let me hone the question a little bit
further. Is there something structurally within INS that we
should be changing to deal with this backlog and poor
communication problem that I have that my constituents are
experiencing?
Mr. Yale-Loehr. I don't think it is anything structural. I
think it is a combination of factors that have grown over time.
I remember 15 years ago I had an interview with a high-ranking
INS official who said, you know, within the next 2 years we are
going to jump from the 19th century to the 21st century. They
had this great plan, but there was no one person at INS with
authority to look at all of the information systems.
There are like 14 or 15 different databases within the INS,
and as those grow over time it gets harder and harder to put
those systems together so that everybody is accessing a common
database in a real-time format. So I don't think there is
anything structural about the problem. I think it is a
combination of lack of resources, lack of attention in the
early days to computerization, and growing mission creep of the
agency. With new things put on it all the time, it makes it
harder and harder for it to get out of the hole that it has
been in for so long.
Senator Brownback. Are we going to want more centralized
authority? You have both talked about a strong and elevated
position within the INS. We have held some hearings here, and
then also as I have traveled and visited with some people on
immigration, they talk about different regional authority,
decisions made in one place, one region, and differently in
another region.
Are we going to want to see that changed and addressed in
this process?
Mr. Yale-Loehr. I think you do. I think immigration is a
national function, and you want one person speaking with
authority and you want people in all the different branch
offices to understand that mission and to react the same way
with the same interpretation. So I think any reorganization
should centralize and strengthen the authority of the person at
the top.
Senator Brownback. Do you think there is too much
decentralization of that sort of policy-type decisionmaking
presently within INS?
Mr. Yale-Loehr. Yes, I do.
Senator Brownback. Mr. Virtue?
Mr. Virtue. I have to agree with that. If you look at the
district directors, for example, at the field level, they have
to prioritize the need for competing resources. So I think they
have to do the best they can, but they are looking at their
particular area and trying to prioritize their own resources
between services and enforcement.
Under this bill, you will have clear lines of authority and
the person at the field level will be responsible for
prioritizing the enforcement mission. At the same time, the
person who is responsible for services will be focused on
priorities within that service and you won't have the same
competition in 34 different offices, or more even.
Senator Brownback. I would like to invite both of you as
you get more time to look at the bill, to think about it and to
comment on it, to get back to us about what you think we ought
to be doing, because it is a serious issue. I think it is an
issue that we are going to be able to get up, I hope, on the
floor here because there is a national emphasis to deal with
it. We really would like the best minds we possibly can get and
people with experience giving us good thoughts on the broad
basis and on the narrow issues as well.
Thanks for being here today.
Senator Kennedy. Senator Feinstein?
Senator Feinstein. Thanks very much, Senator Kennedy.
I want to just share with you a couple of my observations.
I have been on this committee now for almost 10 years. In all
the hearings, I have never ever heard the words ``national
security'' mentioned as any part of the mission of the INS, and
yet now it clearly is part of the mission. So, in a way, the
mission of the INS to some extent is changing. However, there
have been signs all along for many years that things were awry.
Statistics are 3 years behind.
You mentioned, Mr. Virtue, that there are 850,000 people
coming in under the quota system legally a year, but every year
families are coming in of people that have come in in prior
years. So the numbers essentially are substantially above
850,000, but we can't get an up-to-date figure.
On the student visa program, there have been warnings that
the student visa program was in disarray for a decade as I look
back. You have had people convicted for fraud, for falsifying
applications. You have bogus schools set up. You have had
teachers in colleges convicted because they have falsified
applications and grades. You have had a person convicted
because he ran a ring; for so many dollars from each
individual, he could get 100 people in on student visas.
To talk about tailoring the mission to meet the ability of
the agency has been a kind of heresy because immigration policy
has been driven by humanitarian and economic concerns. Maybe
that is right. I am not challenging that, but in everything
that we hear, all the lobbyists at least that I have heard,
nobody has ever said constrain it, modify it, secure it. It has
always been do more, do more, do more. So the system has no
real advanced systems for control measures, for tracking
measures, for real investigatory measures.
We can enact this bill, which we very well may, and it
won't solve the problems that are out there, and I am very
concerned by it because you have had the biggest tragedy,
bigger than Pearl Harbor, that has happened to America and it
all happened from people who had legal visas. Even after two of
them were dead, and dead above the fold on the front page of
the newspapers, they get extensions. That ought to be real
documentation that we are really over-extended, even with
35,000 employees.
How do you check out 500,000 students a year? How do you do
it? It is impossible. Schools, of course, get premium tuition,
so they all want them--a very difficult problem.
You all in a way have a conflict because you represent
people who come into the system, and I recognize that, but you
also must see a system that is overloaded and severely at risk,
if you add the words ``national security'' to our mission.
I would like you to comment on that.
Mr. Virtue. Well, that is absolutely right, and certainly
none of our clients benefit from a system that is overloaded
and has some of the problems that you point out. I think the
reason why the bill that has been introduced here by the
chairman and Senator Brownback is preferable to the House bill
or any of the other proposals----
Senator Feinstein. No, no, don't mistake me. I am asking
you to go beyond the bill.
Mr. Virtue. Okay.
Senator Feinstein. I mean, you are for the bill, I am for
the bill, we are all for the bill. I am asking you to use your
expertise as people who deal in this arena as professionals all
the time as to how do we handle the future once we add national
security to immigration policy, as a part of bona fide
immigration policy.
Mr. Virtue. Well, on that point I think our ability to
check people's backgrounds and verify their identity is only
going to be as good as the information that we have available
from intelligence sources, foreign law enforcement agencies,
and both the development of that information as well as a
system for collecting, maintaining, and distributing that
information to the decisionmakers.
Senator Feinstein. So you would put it on an interoperable
database?
Mr. Virtue. Absolutely, and the decisionmakers are at the
State Department in terms of issuing visas and at the INS in
terms of admitting people who appear at the ports of entry.
That has to be a critical backdrop for any structure within the
agency. So I think that is what we need.
Senator Feinstein. In other words, what you are saying is
you really need top managers in both of those areas. One of
them is to see that the databases function and the materials
communicate from one department to another, which we know they
do not now. That was part of the Border Security and Visa
Reform Act to provide the money for that interoperable system,
which we have done.
Mr. Virtue. And somebody who can be responsible for that
interagency coordination and take responsibility and
accountability for it.
Mr. Yale-Loehr. I agree entirely with that, and I think
part of it is we also as a Nation have to decide what we
believe about immigration. It is too important for us to sort
of talk about it here and there or jump from one crisis to
another.
Speaking from a more academic perspective, I would say I
would convene something again like the Hesburgh Commission and
try to have leading people--academics, practitioners, members
of Congress--say what does immigration mean to this society
after September 11. If we could come up with a consensus that
the American people would believe in, then I think we could
move forward with any kind of system and say, okay, this is
what we plan to do. I think that could go a long way to making
sure that we are effective, whatever system we enact today.
Senator Feinstein. I think that is a good point because we
are a Nation of newcomers. That is what we stand for, and I
think we should continue to be, but I think there are limits on
what we can do and how we can manage what is a new area of
terrible vulnerability for the Nation. That is sort of up in
the air.
In any event, thank you, Mr. Chairman.
Senator Kennedy. Well, thank you. You know, looking back--
and I would be interested in whether I am right--until we
started having the hearings on that 1965 Act, I think we were
10 or 20 years without hearings. We can go back to the
McCarran-Walter Act. I don't think we had very much.
This has been much better that this issue has been up
front. I mean, I differ with the 1996 Act, but what we actually
passed on the floor of the Senate was, I think, a credible
bill. It passed 97 to 3, and then we were excluded, at least
our committee was, from any conference, and then it ended up
being part of the budget and we were forced to vote for the
budget and this bill.
Quite frankly, immigration has not been a high priority of
many Attorneys General, Democrats and Republicans. It has been
a stepchild. They haven't had the support, they haven't had the
technology. They have been a real punching back for members of
Congress. There is enough blame to go around.
We have got an interesting opportunity now and we have got
to focus on it. Americans understand this, and I think the
Congress understands it, and we want to try and get this as
right as we can now. I welcome the comments of my colleagues
who say that we are not going to be able to solve all the
problems just with legislation, but I think if we build on our
border security and try and get this straight and try and do
what you have outlined and understand what our mission is with
regard to it--and I think Senator Durbin mentioned the
different swings and moods which you both have seen in the
Congress over a long period of time; this issue goes back and
forth with the sentiment of the American people--then I think
we can really make some sense of it.
I want to thank both of you. It has been enormously helpful
to me. We have been very lucky to have both of you, and I join
my colleagues in saying that we are going to leave you an open
invitation at any time as you see this whole process move along
to give us your best judgment on these recommendations that
come up. We are very, very grateful to both of you for your
help and your comments here today.
The committee stands adjourned.
[Whereupon, at 3:56 p.m., the committee was adjourned.]
[Submissions for the record follow:]
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