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AILA Testimony on INS Reorganization

Statement of 

Mark Hetfield
Washington Representative, Hebrew Immigrant Aid Society (HIAS)
Member, American Immigration Lawyers Association

on
H.R. 2528 - A Bill to Establish the Bureau of Immigration
Services and the Bureau of Immigration Enforcement 
Within the Department of Justice

Before the House Committee on the Judiciary
Subcommittee on Immigration and Claims
Thursday, July 29, 1999



Mr. Chairman and Members of the Subcommittee on Immigration
Claims, I am honored to be here today in a dual capacity,
representing both the Hebrew Immigrant Aid Society (HIAS) and the
American Immigration Lawyers Association (AILA).

Since its founding in 1880, HIAS has been the worldwide arm of
the organized American Jewish community for the rescue,
relocation and resettlement of refugees and other migrants. 
Since the passage of the Refugee Act of 1980, HIAS has resettled,
in partnership with the US government and the American Jewish
community, more than 360,000 refugees, and has assisted these
refugees and others to navigate the immigration bureaucracy to
obtain refugee status, green cards, naturalization, and other
benefits.

AILA is the pre-eminent immigration bar association of nearly
6,000 attorneys who practice immigration law.  AILA 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 workers
seeking to enter the United States on a temporary basis or,
having proved the unavailability of U.S. workers, on a permanent
basis.  AILA Members also represent foreign students,
entertainers, athletes, and asylum seekers, often on a pro bono
basis.  Founded in 1946, AILA is a nonpartisan, nonprofit
organization and is an affiliated Organization of the American
Bar Association (ABA).  HIAS and AILA appreciate this opportunity
to express their views on the issue of the restructuring of the
Immigration and Naturalization Service (INS).

In recent years, sweeping changes to the law and unprecedented
growth in the size and responsibilities of the INS have
overwhelmed the agency, which has been severely criticized by the
press, its customers, and Congress for ineffective management of
its dual adjudication and enforcement missions.  Congress needs
to share responsibility as well, due to conflicting and unfunded
mandates directed at the agency.  In spite of some modest
successes in INS' efforts to improve customer service, HIAS and
AILA attorneys must still tell clients that they must wait years
to fill a job with a needed legal immigrant, to reunite with
close family members, or to obtain US citizenship to participate
in our democracy, simply because an overtasked and underresourced
bureaucracy is taking years to adjudicate their applications. 
The INS also has  faced severe criticism for failing to
effectively enforce immigration laws through nationally set
priorities applied consistently, professionally, and humanely.

We are pleased to see that the Subcommittee and so many members
of Congress are being attentive to the need to restructure the
INS.  We look forward to working with Congress and the
Administration to effect a sound restructuring of the federal
immigration function.  Such a restructuring should be the first
step toward ensuring that the United States will effectively
administer and enforce its immigration laws, and will treat
immigrants, refugees and asylum seekers with the professionalism
and dignity which they deserve.

HIAS and AILA are on record in support of reforming and
restructuring the INS to disentangle its conflicting missions of
adjudication services and enforcement, clarify its priorities,
and ensure adequate resources to carry out its important
function. As you can see in the attached letter, many nonprofit
organizations and agencies concerned with immigrants, refugees
and asylum seekers have stated that four broad principles should
serve as the foundation for any INS reform so as to equip the
agency with the tools it needs to perform both of its functions
effectively. H.R. 2528, however, attempts to restructure INS
without due concern for the principles and, in so doing, could
make a bad situation even worse.

AN EFFECTIVE RESTRUCTURING OF THE FEDERAL IMMIGRATION FUNCTION
MUST:

(1) Split the INS' adjudication and enforcement functions in
order to create two separate chains of command and career tracks
for greater clarity of mission and accountability, leading to
more efficient services and more accountable enforcement.

H.R. 2528 would separate INS' functions by creating two totally
distinct bureaus - one for immigration enforcement and one for
adjudications - within the Department of Justice.  However, in
such a "divorce", the Bill does not appropriately define the
distinction between "service" and "enforcement." Consequently, it
would place the immigration inspections function of INS in the
enforcement bureau.  Immigration inspectors have quasi-judicial
authority.  By taking them out of the adjudications side of INS
and placing them in a bureau exclusively focused on enforcement,
there would be no checks or balances to ensure that inspectors do
not deport and impose severe penalties on bona fide asylum
seekers, refugees and immigrants.  In this sense, H.R. 2528 fails
to respect our Constitutional tradition of ensuring that
policemen and prosecutors do not exercise judicial authority.

Likewise, the Bill requires that the detention of non-criminals
who are being held pending the outcome of administrative
immigration proceedings would be relocated outside the INS and
become a function of the Bureau of Prisons.  The purpose of
detaining individuals who are waiting for an administrative
determination of whether they may legally remain in the US is to
ensure that they do not abscond - not to punish or "rehabilitate"
them.  H.R. 2528 virtually would require that which international
instruments of refugee protection forbids; namely, the detention
of asylum seekers in prison facilities with common criminals.

The adjudications and enforcement functions should be split, but
H.R. 2528 is dangerous in its failure to define the distinction
between these two functions.  Furthermore, the full scale divorce
between the two functions leads to additional problems noted
below.

(2) Put Someone in Charge, With Clout.  Have a single, full-time,
high-level individual in charge of both chains of command, who
will have access to high-level officials within the executive
branch, and who will be able to integrate policy making with
policy implementation, as well as to coordinate the separate
service and enforcement chains of command.

H.R. 2528 would balkanize U.S. immigration policy by creating two
immigration agencies, each with its own spokesperson and policy,
under the Attorney General or "her delegate."  The creation of
two rival bureaucracies, each setting their own policy
priorities, with no full-time coordinating entity, would make it
virtually impossible to articulate a coherent, unified
immigration policy.  In fact, H.R. 2528 suggests there is no need
for a coherent, unified policy.  The two bureaus soon would be
working at cross-purposes, with its leaders sending conflicting
messages on policy matters of complex laws.  Moreover, it would
make coordination at the local level virtually impossible,
severely impeding the "Bureau of Immigration Services" from
working with enforcement personnel to combat immigration fraud
and to ensure that aliens who are eligible for relief are not
unnecessarily detained or removed by the enforcement bureau.

H.R. 2528 assumes that the office of the Attorney General alone
will be able to coordinate the enforcement and service bureaus.
If the coordination between the Federal Bureau of Investigation
(FBI) and INS, however, is any indication, the Attorney General
will be too busy mediating to coordinate. For example, the walls
between the INS and FBI bureaucracies may have been partially
responsible for the multitude of problems INS has experienced in
recent years in the processing fingerprint cards of applicants
for naturalization.

If existing inter-bureau relationships within DOJ are any
harbinger for the future, the creation of two more immigration
agencies under the Attorney General will only create further
logjams and weaker accountability leading to weaker enforcement
and longer backlogs in naturalization and adjudication, as each
agency pursues competing priorities and agendas.

(3) Share the Support Services Among the Split Functions. 
Achieve cost efficiencies and necessary coordination by sharing a
set of discrete functions, such as shared information systems,
legal counsel, administrative infrastructure, and policy.

H.R. 2528 would authorize the Department of Justice to make
provisions for the two immigration bureaus to share support
services.  However, the Bill's requirement that each bureau
answer directly to the Attorney General would only result in two
warring bureaucracies whose competing priorities would preclude
resources from being efficiently shared.  Moreover, the Bill
requires that the information management needs of the immigration
function be melted into the Department of Justice Management
Division, which has experience only in managing the needs of law
enforcement - not benefits programs.  This merger would hinder
the "Bureau of Immigration Services" in its ability to provide an
acceptable level of customer service to legal immigrants.

Examples of the need for close coordination between the two
bureaus abound, and H.R. 2528, by making such coordination even
more difficult than it is, would undermine both adjudications
services as well as enforcement priorities.  Consider the
following examples:

1. 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, or would have to either return him
over the border or, more likely, put him into detention pending a
hearing, at taxpayer expense.

2. Immigration Adjudications receives a suspicious 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 (a legitimate part
of a profile for fraud is to look at the past fraud of the
employer).  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. An applicant for Temporary Protected Status (TPS) has a
discrepancy in her application regarding physical presence and
INS needs to examine entry databases.  Without easy access to
those inspections records, the application cannot be properly or
efficiently adjudicated.

5. An F-1 student overstays, marries a U.S. citizen and applies
for conditional residence.  The marriage does not last until the
time of the permanent residence application, and there are
potential issues of fraud.  After the interview, there are
continuing concerns.  The investigator wants to refer the case to
proceedings.  Without close linkages between the two agencies,
such routine referrals would likely become a Kafkaesque
nightmare.

6. While the lack of due process and secrecy of expedited removal
proceedings and secondary inspection puts bona fide asylum
seekers at risk of being returned to their persecutors, the
severing of links between enforcement and adjudications would
severely limit the influence of the asylum corps, at both the
local operational and national policy levels, in encouraging
appropriate referrals to credible fear proceedings.

If enforcement and adjudications are to be split, an action which
we support, the restructuring plan must ensure that a
high-ranking official, with full-time devotion to immigration
matters and direct line authority over the two functions and
shared support services, is able to coordinate shared information
systems, legal counsel, policy, and administrative
infrastructure, including personnel and training.

(4) Provide Adequate Resources for the Adjudications Function. 
Ensure that congressional appropriations are available to improve
services that have been abysmal and continue to deteriorate as
user fees underwrite unfunded congressional mandates and upgrades
of INS systems.

H.R. 2528 would virtually ensure that the immigration "service"
function would be severed from the resources it needs to make
badly needed improvements to customer service, and to address the
nearly three year-long backlog faced by legal immigrants waiting
for green cards or citizenship.

In theory, fees paid by applicants for immigration benefits are
to pay for the adjudication of the applications for which the
fees are paid.  Generally speaking, the adjudications side of INS
does not receive taxpayer dollars through an annual congressional
appropriations to sustain its operations, but must rely entirely
on funding from the "examinations fee account", and rare "one
time" appropriations from Congress, as was the case last year, to
deal with the naturalization backlog.

In practice, however, while immigration "services" receive little
or no taxpayer dollars each year, a large share of fee money paid
by immigrants goes to support other functions which are wholly
unrelated to the fees paid.  On the other hand, enforcement in
recent years has enjoyed an unprecedented infusion of resources
from both taxpayer money and fees paid by legal immigrants.

Over FY 1998 and FY 1999, for example, Congress mandated the
diversion of more than half a billion dollars ($518m) of fee
money (including 245(i) revenue) to pay for detention, asylum
processing, refugee processing, Department of Justice Oversight,
Inspector General investigations, and Congressionally mandated
infrastructure costs not related to directly supporting
immigration benefits. With massive backlogs, this money should
have been spent on adjudicating the applications for which the
fees were paid.

However, for FY 2000, INS estimates that, even if it receives its
requested "one-time" Salary and Expense appropriation from
Congress of $128.710 million, immigration services will have to
make $105.157 million in cuts in critical initiatives and
expenditures to its revised budget request.  Under this scenario,
INS would have to cut more than 700 positions related to
adjudications, would fall further behind in making badly needed
customer service improvements, would make little progress in
addressing the naturalization backlog, and would exacerbate its
adjustment backlog, which is now approximately 900,000, with an
expected processing time of 34 months.

Immigrants, particularly when they are receiving an unacceptable
level of service when applying for immigration benefits, should
not be forced to pick up the check for programs unrelated to the
processing of their applications.  The responsibility for
programs which do not generate fees should be shared among all
taxpayers - not just those who happen to be tax-paying
immigrants.

We are very disappointed that H.R. 2528 does not address the need
for legislation to restructure the financing of the immigration
function, and would do nothing to stem the hemorrhaging of INS
application fee money for unrelated purposes.  Rather, the Bill
would maintain this diversion and further exacerbate the backlogs
by implicitly tacking on the additional requirement that fee
money also cover significant additional infrastructure costs
associated with creating and maintaining a new administrative
bureaucracy for the "Bureau of Immigration Services."

Any restructuring of INS must be accompanied by finance reform of
immigration services.  H.R. 2528 would only exacerbate the
chronic under-resourcing of the immigration "service" function,
which relies on fees paid by immigrants, and would prevent the
adjudications side from sharing any of the taxpayer resources
provided to the immigration "enforcement bureau."

CONCLUSION

In our view, the federal immigration function needs to be
restructured in order to disentangle immigration adjudications
from enforcement; enhance accountability, professionalism and
customer service; and make other improvements to managing the
enforcement and administration of the immigration laws of the
United States.  To achieve these ends, it is necessary to define
and separate INS' adjudication functions from its enforcement
functions; to ensure coordination and efficiency through a strong
unified leadership and shared services in support of the two
functions; and to restructure the financing of the agency to
ensure that both enforcement and adjudications are fully and
appropriately funded.

AILA and HIAS are among the many organizations whose members,
employees and volunteers are dedicated to helping immigrants,
asylum seekers and refugees navigate the dysfunctional
immigration bureaucracy.  Most members of Congress are now in
this business as well, with their caseworkers spending an
inordinate and unmatched percentage of their time helping
constituents squeeze INS for basic information about pending
applications in the mammoth backlog.  With no alternative
legislation introduced, dozens of members of the House of
Representatives have co-sponsored H.R. 2528 in the hope that such
legislation would improve this intolerable situation for their
constituents.  As I have testified here today, however, H.R. 2528
falls short of addressing INS' restructuring needs, and would
likely make a bad situation worse.  With this in mind, we would
urge the Subcommittee to pursue alternative legislation which
would explicitly incorporate the four principles of restructuring
which I have outlined today.

Thank you.


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