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AILA Testimony on INS Reorganization

Cite as "AILA InfoNet Doc. No. 01111559 (posted Nov. 15, 2001)"

Cite as “Posted on AILA InfoNet, Doc. No.28AD1042
(April 23, 2002 ).”

Statement of 

Steven M. Ladik, President

American Immigration Lawyers Association

On

H.R. 3231, to Replace the Immigration and Naturalization Service 
with the Agency for Immigration Affairs

Before the
House Committee on the Judiciary
Subcommittee on Immigration and Claims

November 15, 2001
Washington, D.C. 


Mr. Chairman and distinguished Members of the Subcommittee, I am honored to be here today representing the American Immigration Lawyers Association (AILA). I am Steven Ladik, President of the American Immigration Lawyers Association. AILA is the immigration bar association of more than 7,500 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 takes 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 foreign students. 

AILA appreciates this opportunity to express its views on the issue of the restructuring of the Immigration and Naturalization Service (INS). Before discussing any specific proposals, it is important to frame the issues before us. 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. The INS needs to function well, now more than ever before, given the September 11 terrorist attacks. These attacks underscore what we knew all along: 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 increasingly has come under attack from Congress, its customers, the press, and the general public for ineffective management of its dual adjudication and enforcement functions. Sweeping changes in the law and unprecedented growth in the size and responsibilities of the INS have overwhelmed the agency. In spite of some modest successes in INS' efforts to improve customer service, AILA attorneys still must tell clients that they must wait years to reunite with close family members, acquire U.S. citizenship to participate in our democracy, and obtain needed legal immigrants to fill employment needs, all because an over tasked and under resourced bureaucracy is taking years to adjudicate their applications. 

The INS also has been severely criticized for failing to effectively enforce immigration laws through nationally set priorities applied consistently, professionally and humanely. Post-September 11, many have concluded that the agency cannot do its job because of reports that some of the terrorists were in legal status, others had overstayed their visas, and the status of others are simply unknown because of the lack of any records about them. While "Fortress America" is impossible to achieve and not in our national interest, we also cannot tell what is in people's minds and hearts. So, we must take care here with our criticisms. Among other possible changes in needed in the law, this situation points to mandating that federal law enforcement agencies share intelligence information, an important provision in several recent bills including H.R. 3205 that was introduced by Representatives Conyers (D-MI), the Ranking Member of the Judiciary Committee, Cannon (R-UT), Berman (D-CA), and Graves (R-MO). Finally, many criticize the INS for detaining people without disclosing who is in detention, the charges against them, and where and under what circumstances they are being held. While the agency and our entire government have an enormously difficult task, we must seek to balance our security needs with maintaining the very principles for which we are fighting: We must act within Constitutional bounds. 

Why has the INS faltered in carrying out its missions? There are many reasons for this and both the INS and Congress must share responsibility. First, the agency's combined functions of immigration enforcement and adjudications need to be both better differentiated and coordinated. Second, are the vast changes in immigration law, the unprecedented growth in the INS' size and responsibilities, and ineffective management that together have contributed to the agency's current state. Third, is the continued absence of adequate resources on the adjudications side that Congress, as it addresses restructuring, must consider. Finally, Congress has contributed to the agency's problems because of conflicting, complicated, unfunded, and incomplete mandates. The results? People wait years to reunite with close family members and to obtain U.S. citizenship, businesses are forced to wait years to fill jobs with needed legal immigrants, immigration laws are not enforced consistently, professionally, or humanely, and the INS is crippled because it is granted neither the financial resources nor sometimes the authority (such as access to relevant data bases of other federal law enforcement agencies) to successfully fulfill its functions. 

AILA already is on record urging the creation of a new, independent cabinet-level department or agency combining all current immigration functions of the INS and the Departments of Justice, State, and Labor. Such an agency should separate, but coordinate, immigration services and enforcement functions. If a new, independent agency is unfeasible, AILA urges the creation within the Department of Justice of two separate, but coordinated, entities for services and enforcement. Those new bureaus should be overseen by someone in charge, either an Associate Attorney General for Immigration Matters or an Administrator of Immigration Affairs, who reports directly to the Attorney General. Having such a person in charge would improve accountability by fully integrating policy making with policy implementation, ensuring direct access to high-level officials within the executive branch, attracting top managerial talent, and coordinating the efforts of the two bureaus.

To put it simply, a high-level individual with clout should head the reorganized, and adequately funded. immigration agency, and the adjudications and enforcement functions should be separated, but strategically coordinated, within the Department of Justice. What is needed is this single, focused, and adequately funded national chain of command to pursue both an integrated national enforcement strategy and the immigration services functions. 

We are pleased that the Immigration Subcommittee, the Judiciary Committee, and the Bush Administration all support reforming the INS. We look forward to working with all parties to effect a sound restructuring of the federal immigration function. To that end, we are eager to review the Administration's plan that would administratively reorganize the agency. We believe that a significant number of the issues can be resolved administratively and that any Congressional initiatives need to await review of the Administration's plans. We also caution the Administration and Congress to undertake this reorganization in a way that takes into account of, and does not disrupt, the enforcement and adjudication requirements of our post-September 11 world. 

AILA welcomes Representatives Sensenbrenner (R-WI) and Gekas' (R-PA) interest in this issue. The Chairs of the Judiciary Committee and Immigration and Claims Subcommittee respectively have important roles to play and perspectives to explore in the intensifying debate about restructuring. Their introduction of H.R. 3231, the Immigration Reform and Accountability Act of 2001, reflects their concerns and the importance of the issue to them. We also look forward to working with Representative Sheila Jackson-Lee (D-TX), the Ranking Member of the Immigration and Claims Subcommittee, who introduced H.R. 1562, the Immigration Restructuring and Accountability Act of 2001. Representative Jackson-Lee also has a keen interest in this issue and much to contribute to the debate. AILA looks forward to exploring those areas where we agree and differ and recognize that we share the same goal: an effective, efficient and fair immigration function. 

AILA believes that any successful reorganization of the INS must be based on the following five criteria:

(1) Accountability and leadership must come from the top. Appoint a high level, full-time person in charge of both the adjudications and enforcement functions. This person will integrate policy making with policy implementation and lead and coordinate the separate service and enforcement functions. 

There needs to be one full-time, high-level person in charge of our nation's immigration functions. Having one person in charge would improve accountability, so very important 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. 

Unfortunately, as introduced, H.R. 3231 does not create a high level person with clout. The bill abolishes the INS and creates a new Agency for Immigration Affairs (AIA) headed by an Associate Attorney General (AAG). However, this AAG appears to have insufficient authority, especially when compared to the authority and clout given to the Directors of the two bureaus the bill creates, the Bureaus of Immigration Services and Adjudications and Enforcement. (In contrast, H.R. 1562 creates an Associate Attorney General for Immigration Affairs whose office has more authority than the two bureaus the bill also creates.) 

It is highly unlikely that a coherent, unified immigration policy could result from the immigration structure created in H.R. 3231. Among other functions, the AAG oversees and supervises the two bureaus and the Executive Office of Immigration Review (EOIR), coordinates the administration of national immigration policy, reconciles conflicting polices of the two bureaus and EOIR, and allocates and coordinates resources through the Office of Shared Services. However, the AAG's insufficient authority is underscored by the weak positions created within the AIA: legal advisor (rather than a General Counsel) who provides legal advise to the AAG and issues legal opinions on "general issues of law," policy advisor (rather than an Office of Policy and Strategy), and chief financial advisor (rather than a Chief Budget Officer). While the Director of the Office of Shared Services is housed within the AIA, H.R. 3231 includes a study to determine if this function should be transferred to the two bureaus. Finally, an Office of Ombudsman is housed in the AIA and, while reporting to the AAG, is independent of the AAG and reports directly to Congress. (Furthermore, the Ombudsman has extensive responsibilities with regard to problems with the Bureau of Immigration Services and Adjudications, but has no responsibility for addressing problems individuals may have with the Bureau of Enforcement. No other entity appears to fulfill that function, certainly not the AIA.) Finally, the bill creates in the AIA an office of Professional Responsibility and Quality Review. Importantly, H.R. 3231 includes no authorization to fund the AAG. 

The clout and authority created in H.R. 3231 is exercised by, not the AAG, but rather, the two Bureaus and their Directors. H.R. 3231 separates out the two current functions of the INS and creates within the Department of Justice a Bureau of Immigration Services and Adjudications, and a Bureau of Enforcement, each headed by a Director. While both Directors report to the AAG, this reporting appears not to grant much authority to that office. Each of the Bureau Directors establishes policies, oversees the administration of such policies and is in charge of the functions within each of their Bureaus. Housed within each are offices with real mandates and authority. Each Bureau has its own General Counsel, Office of Policy and Strategy, Chief Budget Officer, Office of Operations Statistics, Office of Congressional, Intergovernmental and Public Affairs, as well as field and operational offices. H.R. 3231 goes into detail about the sector and field organization of the Bureaus that might be best left to be determined administratively to allow the immigration functions to better respond to changing circumstances. 

In summary, the structure laid out in H.R. 3231 -- a weak AAG and two strong, separated bureaus, is a recipe for conflicting legal strategies, public and budgetary policies, and information relayed to Congress and the general public. H.R. 1562 does not exhibit this problem. The bill establishes in the Department of Justice an Office of the Associate Attorney General for Immigration Affairs (AAGIA). The AAGIA is in charge, supervising and coordinating the functions performed by the Directors of the Bureaus of Immigration Services and Enforcement that are established under this bill. The AAGIA's office includes many of the necessary functions for someone in charge: a Legal Counsel, Chief Financial Officer, Office of Shared Services, and the Office of Immigration Quality Assurance, Professional Responsibility, and Customer Service. Furthermore, the two bureaus established in H.R. 1562, unlike those in H.R. 3231, are not created to be competing centers of authority. In addition, the bill adds an important office to both bureaus: an Office of Children's Affairs. Each of these offices is charged with any and all responsibility and authority relating to the special needs of children. H.R. 1562 also strives to provide protections against processing delays by including a Sense of Congress that the Directors of the Bureau of Immigration Services "shall develop, implement and maintain procedures to ensure, to the extent practicable," that all complete benefit applications are granted or denied within reasonable periods of time that are noted in the bill's provisions. H.R. 1562 also mandates that the Attorney General, no later than one year after enactment, submits to the Senate and House Judiciary Committees an implementation plan that details an organizational structure that shall "ensure accountability by, and coordination among," the Office of the AAGIA and the two bureaus. 

Given this country's urgent need to maintain and upgrade our 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 and implement balkanized immigration policies. Given this need for one person to be in charge of the two functions, we also believe, in contrast to H.R. 3231 that places inspections in the Bureau of Enforcement, that inspections should be housed in the AAG's office. 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 adjudications standards and enforcement procedures. 

The need for someone in charge of national policy who has authority over the two immigration functions is evident with regard to this nation's security needs. Such a structure is evident in other areas as well. For instance, immigration enforcement officers interdicting or inspecting asylum seekers will likely have a different interpretation than do immigration service personnel on whether the asylum seeker is eligible for protection under U.S. laws and treaty obligations. 

(2) Coordinate the separated enforcement and adjudications functions.

AILA believes that separating, while coordinating, 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. H.R. 3231 meets one-half of that principle. It does create two separate Bureaus within the newly created Agency for Immigration Affairs in the Department of Justice: The Bureau of Services and Adjudications and the Bureau of Immigration Enforcement. However coordination is as important as separation and H.R. 3231 provides little meaningful coordination between the functions. This coordination is largely lacking because there is no high level official with authority over the two bureaus who would be able to coordinate shared information systems, legal counsel, policies, and administrative infrastructure, including personnel and training. The two bureaus would end up working at cross-purposes, with its leaders sending conflicting messages on policy matters of complex laws. 


Why is coordination so important? Please consider the following examples:

1) 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 deport or detain him.

2) Immigration Adjudications receives a petition for H-1B status and suspects fraud. The Service Center wants to check on the employer's record with INS and 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.

3) An adjustment applicant 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.

4) There is a discrepancy regarding physical presence in an application for Temporary Protected Status (TPS). INS needs to examine entry databases. Without easy access to those inspections records, the application cannot be properly or efficiently adjudicated.

Without someone in charge who can resolve differences and close linkages between the two bureaus, such routine referrals would likely become Kafkaesque nightmares. Congressional staff handling requests for assistance on immigration matters also would have to deal with two separate agencies, 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 Congress ponders reforming the INS, we urge you to also review how immigration functions have been and should be funded. Currently, enforcement functions are supported by Congressional appropriations, while adjudications are almost entirely funded by user fees. In theory, fees paid by applicants for immigration benefits are used for adjudicating the applications. In practice, however, 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 pick up the check for programs unrelated to the processing of their applications. The responsibility for programs that do not generate fees should be shared among all taxpayers. 

AILA supported the establishment of the Examination Fee Account when it was first created. However, given its current history and the status of that account, we have revised our views to urge Congress to supplement user fees with Congressional appropriations to ensure that an appropriate level of service is achieved. In addition, we urge Congress to stop diverting funds from the user fee account to pay for unrelated, but important, initiatives. Congress should find sources of funding, other than from user fees, to pay for these efforts. Importantly, 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 Department of State and INS (in its enforcement and adjudications functions) will require. Such funding needs to come from direct federal appropriations. Both agencies security agendas cannot be supported through user fees alone. This enhanced capacity to meet our security needs is a national function best supported through the federal government and will require such support on an ongoing basis. 

H.R. 3231, as does H.R. 1562, takes some positive steps with regard to funding. Both bills authorize appropriating funds for FY 2002 through 2004 to reduce the backlogs in processing applications. Both also provide a Sense of Congress that the missions of both bureaus are "equally important," that both bureaus should be "adequately funded," and that neither the adjudication nor enforcement function should operate at levels below that in existence prior to the restructuring. H.R. 3231 also authorizes appropriations for transition purposes and generally prohibits the transfer of fees among the bureaus. However, H.R. 3231 provides no authorization to fund the AAG or the AIA, with no account created for either, in contrast to the two bureaus and the EOIR for which separate accounts are established in the Treasury Department. In addition, H.R. 3231, by eliminating the fee account funding for asylum and refugee adjudications and not authorizing appropriations for these important functions essentially leaves both completely unfunded. 

However, neither bill sends the important signal that direct Congressional appropriations need to regularly and on an ongoing basis supplement user fees. Without such a commitment, there will be continuing backlogs in adjudications since direct Congressional appropriations would be needed to ensure that backlogs do not reappear. H.R. 3231, introduced after September 11, also does not take into account the need to authorize the funding of additional kinds of procedures and protections the INS will need to put into place given the terrorist attacks. 

(4) Judicial, civil and other functions should not be subsumed within the Agency for Immigration Affairs. 

H.R. 3231 subsumes the EOIR within the newly created Agency for Immigration Affairs. While few details are included in the bill, the AAG would oversee the work of, and supervise, the Director of the Executive Office for Immigration Review. The AAG also would review on referral decisions of the Board of Immigration Appeals (BIA) that the AAG directs the Board to refer, the Chairman or a majority of the BIA refers, and the Directors of the Bureaus of Immigration Services and Adjudications and Enforcement requests to be referred. 

Among other functions, EOIR reviews decisions denying asylum that are referred to them by the INS. Similarly, EOIR makes asylum determinations as the objective arbiter in adverse removal proceedings to which INS is a party. EOIR, while part of the Justice Department, is now independent from INS, and should remain so. This separation has been important in ensuring that asylum seekers and others who go before EOIR receive a fair hearing. 

By mandating that the AAG oversees the work of, and supervises, the EOIR, H.R. 3231 would infringe on EOIR's objectivity and independence. It is vitally important to prevent institutional pressures from undermining EOIR's ability to make impartial decisions in asylum and other cases argued by Immigration Enforcement trial attorneys. If this provision of H.R. 3231 would become law, Immigration judges and immigration "prosecutors" would all belong to the same bureaucracy, thereby making it less likely that asylum seekers and others would receive a fair hearing or a meaningful appeal. 

These concerns apply to the review on referral decisions of the BIA that is an independent appellate body. Also of concern is that fact that functions currently performed by the Department of Justice's Civil Rights, Civil, and Criminal Divisions are transferred to the two newly created bureaus. 


(5) Any reorganization of the Immigration and Naturalization Service must contribute to enhancing our nation's security. 

The Immigration and Naturalization Service 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 (who is the only Presidential appointee confirmed by Congress) and empowering the heads of two conflicting bureaucracies is a recipe for conflict and dysfunction, precisely what is not needed in ordinary times, and certainly not during emergencies such as what we are now experiencing. H.R. 3231 proposes a reorganization of the INS that does not fit our needs. 

While a reorganized INS can help us isolate terrorists, we must remember, as President Bush recently affirmed, that we are a nation of immigrants. As we seek to create new means to isolate terrorists, we must take care not to isolate America in the process. A reorganized INS must work toward these goals: Ensure that people who mean to do us harm are barred from entering the U.S. but put out the welcome mat for people seeking to reunify with their families, foreign professionals and others who fill the needs of our economy, and asylees and refugees seeking safe haven. 

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 on 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 business to acquire the workers they need. 

As we continue to discuss and debate the reorganization of the Immigration and Naturalization Service, it is important to remember that:

· Restructuring is but the first step in a long process, the end result of which needs to be effective, efficient, and fair adjudications and enforcement. The Administration and Congress need to be mindful of the end result. Both must continue to pay attention to the INS's needs and the demands it faces, especially after September 11, while the agency needs to deliver on its promises. 

· Congress has the opportunity to make reorganization a success. Reorganization should and can be a nonpartisan effort that brings together the best thinking of Republicans and Democrats, experts in the field, and the INS' customers. We need to give the Administration the opportunity to unveil its plan to Congress and the public. In addition, Congress must recognize its important role in creating and maintaining a vital and successful federal immigration function. Conflicting, complicated, unfunded and incomplete mandates will threaten the agency's ability to fulfill its mission and bring us right back to where we are today. 

· Any meaningful restructuring of the immigration function needs to include financing proposals. Restructuring would be incomplete without also reviewing the sources of funding for this function, especially given the increased demands on the agency that have resulted from the September terrorist attacks. Furthermore, especially given the diversion of funds in the adjudications function noted above and the fact that the adjudications function cannot continue to be solely or largely funded through user fees, any successful restructuring plan must respond to the funding needs of the adjudications function. Both enforcement and adjudications are in the national interest and should receive adequate resources. 

Mr. Chairman, thank you very much for this opportunity to share my thoughts and perspectives with the Subcommittee. 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. We appreciate the opportunity this hearing has given us to explore this important issue. Thank you.



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