AILA makes recommendations to restore due process for Central American children, families, and adults seeking asylum and legal protection at our border. Read Report Today
AILA Doc. No. 02021371 | Dated February 13, 2002
National Immigration Forum
February 1, 2002
I am honored to have been invited by the National Immigration Forum to speak about immigration policy and INS’ expanded role in the aftermath of September 11. I applaud Frank Sharry, Angela Kelley, and all the Forum staff for their leadership in recognizing both the importance of this moment and the critical need to continue, as the conference title suggests, “Moving Forward in a Time of New Challenges.”
Before I begin, I want to congratulate Senator Kennedy for being named recipient of the Forum’s newly established “Promise of Liberty Leadership Award.” During his forty years in Congress, Senator Kennedy has been a tireless and highly effective champion of immigrants and refugees. My only concern about him being named the first person to receive this award is that the Forum may have set the bar too high for future recipients.
Today, I want to talk about two key issues. The first is security and how enforcement, particularly related to border security, has evolved since September 11th. The second is children. Before I get to those topics, I would like to touch on something that has been in the news recently and to provide assurance to those who care as deeply as I do about America's commitment to refugees. Concerns have been expressed that because of the late start and the security enhancements added on refugee processing due to the events of September 11th that the ceiling of 70,000 refugees set by the President for this fiscal year simply could not be met. I want you to know that we have designed a realistic plan to address this issue. Among other things, it includes detailing a significant number of INS personnel to conduct refugee interviews worldwide with a goal of meeting 70,000 admissions this year. I realize that this will be a difficult task and that we must overcome some logistical barriers and rely to a great extent on our partners in the State Department in achieving this, but I believe this is so important that we must try. And try we will. I intend to work closely with newly appointed Assistant Secretary Gene Dewey on this and other important refugee matters.
As you know, I was recruited for this job. However, had I known what I know today, I would have pursued the job. This job provides its occupant with an opportunity to make a positive difference in the lives of millions of Americans and millions of potential future Americans, and, in the process, to help shape the future of our Nation. My enthusiasm for this job has been fueled further by the realization that the overwhelming majority of INS employees are -- counter to the widespread criticism I heard -- hard-working professionals who are deeply dedicated to fulfilling the awesome responsibilities given to them by the American people.
Meeting our responsibilities to the Nation has never been
easy, and the tragic events of September 11 have made it even more
difficult. These events
have profoundly changed the climate and culture in which INS and other
agencies operate. I came to
this job with the philosophy that the United States ought to welcome
immigrants – to do everything within our power to ensure that our
country remains a beacon of hope and freedom for people around the
world. Even in the face of
deadly terrorist attacks, that belief not only is unshaken, it is
I have said it before, and I will say it again, and again: The events of September 11 were caused by evil, not by immigration. Therefore, efforts to enhance our national security must focus on identifying and thwarting those who are intent on tearing us down, not on preventing the many millions worldwide who are eager for an opportunity to join us in building our Nation. We can and will protect ourselves against people who seek to harm the United States, but we cannot judge immigrants by the actions of terrorists.
Demands for swift, dramatic action are understandable; no one wants a repeat of what happened on September 11. However, it is imperative that our response be guided by a commitment to do what is right and effective, not by what makes us feel better at the moment. The most effective way to prevent terrorists and other criminals from exploiting our country’s openness for nefarious purposes is to build productive partnerships with those who share the values we cherish. Even before September 11, INS was working to enhance our level of cooperation and coordination with other federal agencies, as well as with our international counterparts and private sector institutions. Here are just a few examples of the joint efforts that make our Nation more secure:
result of the events of September 11, we have redoubled our
collaborative efforts with other agencies to ensure that students,
visitors, and others who come to the United States temporarily, abide by
the terms of their admission. Our
message is loud and clear: Flouting of U.S. immigration laws must and
end, INS is entering the names of the some 314,000 “fugitive
aliens,” or absconders, into the FBI’s National Crime Information
Center database. It is a large project that will require significant
resources, but I believe it is important that we do this -- we want
visitors to our country to understand that we expect them to stay here
on the terms under which they are admitted.
I want to make it clear, however, that this is not a “sweep.”
These individuals have been accorded due process.
They appeared before immigration judges, went through the appeals
process, and now face a final order of deportation.
Instead of complying with the law, however, they have chosen to
“jump bail” and abscond. This
must not continue.
initiative highlights an important point about how the laws of our
Nation operate. That is,
with rights come responsibilities.
The law provides the right to challenge deportation, and in many
cases to seek affirmative relief, through a judicial process.
With that right comes the responsibility to respect and obey the
final decision, even an adverse decision.
Acceptance of that responsibility is crucial for a legal system
to maintain credibility.
also working with the State Department, Department of Education, and
more than a half dozen other federal agencies to carry out the
Presidential Directive on student visa abuse issued in early November.
Among other things, we have been directed to implement a foreign
student tracking system. Development
of this system, which we began prior to September 11, is well underway,
and we expect to begin implementation this summer.
Again, those are just a few of the collaborative efforts with which INS is engaged. We are committed to identifying and pursuing all possible opportunities to work cooperatively with other federal, state, and local law enforcement agencies in order to protect U.S. citizens, immigrants, and bona fide visitors to this great country.
I would like to note that my second topic – children – also has protection and security as its basis. In particular, I want to tell you about efforts to improve protection and security of two groups of juveniles within our jurisdiction most directly affected by immigration: those adopted internationally and those in INS detention.
First, on international adoptions: let there be no doubt that it is the best interest of each child that governs all our deliberations and actions in this area. Our laws leave no ambiguity on this point. Under The Hague Convention on Intercountry Adoption and the corresponding Intercountry Adoption Act of 2000, INS is obliged to protect the best interest of each child. This includes ensuring that children are not taken from their birth parents through fraud, duress, or sale. Meeting this obligation is paramount, and it takes precedent over any responsibility we have to help U.S. citizens complete international adoptions.
The problem we see in Cambodia and Vietnam right now, and saw previously in Romania and Guatemala, is that Americans travel abroad and adopt a child only to discover that the child does not qualify as an orphan under the terms of the Immigration and Nationality Act. This happens when INS and State Department are not provided the necessary information about a child early in the process, thus preventing us from determining with certainty if a child, offered for adoption, is, in fact, an orphan. If child trafficking is involved, we cannot grant a visa no matter how forcefully a foreign government puts its imprimatur on the adoption. I hope that every American would agree with that moral and legal imperative.
Given the growing volume of evidence of child selling and kidnapping that we are finding in some countries, I make no apologies for INS’ stance on questionable adoptions. Nevertheless, I understand the overwhelming heartbreak prospective parents feel when they discover that they can’t bring a child to the U.S., a discovery that usually comes after great financial and emotional expense.
I have instructed my staff to re-examine existing adoption procedures to determine how they can be modified to prevent, if not eliminate, these heart-wrenching circumstances. The Hague Convention on Intercountry Adoption and the companion Intercountry Adoption Act point us in the right direction. Under that treaty, a child must be “pre-approved” as adoptable and eligible to immigrate before a family meets and adopts the child. I don’t intend to wait for formal implementation of the Treaty. I intend to fashion a system that accomplishes that goal now.
In addition, we must work aggressively with foreign government officials, as we are in Cambodia and Vietnam, to establish a comprehensive system with integrity and accountability, a transparent system where children will be properly identified and the circumstances of their adoptions investigated up front. Before any American family travels abroad they should know whether the potential adoptee satisfies immigration requirements. I would like to ask the National Immigration Forum for its assistance on this issue, and to aid in the development of a better system – one that works.
Just as INS is committed to protecting children who are adopted internationally, we are equally resolute in our commitment to protect unaccompanied juveniles in our custody. At my Senate confirmation hearing, I promised to make the welfare of unaccompanied minors a top priority. Today, I am pleased to announce a new initiative on juvenile policy.
This long-overdue project is based on two fundamental principles: First, identifying and addressing juvenile concerns require that INS adopt a multi-disciplinary, “holistic” approach to all of the children and young adults involved in immigration proceedings. Detention is just one aspect of the issue. Second is the well-established principle that it is generally in the child’s best interest to be reunited with his or her family. Obviously, unaccompanied minors who have been victims of abuse or neglect may need U.S. protection to ensure that they are not returned to an abusive environment. Absent evidence of such a threat, however, we should work toward developing a system that quickly reunites children with their families, in the United States or abroad.
As part of this new initiative, I commit INS to:
INS is taking a number of steps to fulfill these commitments. These include:
The Office of Juvenile Affairs will coordinate the provision of timely, appropriate services to all juveniles in INS facilities worldwide. It will also ensure that inadmissible juveniles are returned to their families, when appropriate, and with the utmost compassion and dignity. We are now in the process of identifying and implementing best-practice models for service delivery, with an emphasis on family reunification and comprehensive case management. Having the Office of Juvenile Affairs report directly to me will guarantee consistency, accountability, and integrity in the agency’s treatment of juveniles.
This is also what the Flores settlement sought to establish. With the settlement set to expire this spring, some of you are undoubtedly worried that it will be “business as usual.” I can assure you that such concerns are totally unfounded. We are committed to codifying the Flores settlement, and have published a proposed rule to do so. Two weeks ago, we re-opened the comment period on the proposed rule to allow additional public input. I urge you to submit comments before the period closes on March 15. Your feedback will be vital to ensuring our best response on this important issue. Our commitment to codifying Flores is further underscored by our efforts to expand the juvenile management information system developed as part of the settlement.
Although the Inspector General’s investigation found that INS districts, Border Patrol sectors, and Headquarters were in substantial compliance with the Flores agreement, it also identified a number of areas where INS could improve. We welcome this thorough review of our juvenile detention program and concur with the shortcomings identified, including the lack of comprehensive standard operating procedures and the need to hire additional staff to work directly with minors.
Additionally, INS will review existing juvenile detention shelter care standards and make revisions where warranted. We will review and update existing policies, including the use of restraints and strip/pat searches, and provide additional training and guidance as necessary. I know that many people cringe when they hear the words “restraints” and “strip search” used in connection with juveniles. But we must recognize that some of the juveniles we deal with don’t fit the ideal of “sweet, innocent” kids. Rather, some are violent young adults who have criminal records and serious psychological problems. They must be treated accordingly, for their own safety and for the safety of others.
Such concerns are just one of the many factors that creates the diverse needs within our juvenile detention population. To address individual needs more appropriately, INS will appoint specially designated juvenile affairs officers, who will be responsible for the treatment and care of children under their supervision. As full-time case managers, they will be assigned a caseload small enough to allow them sufficient time to facilitate appropriate placement or return to their family.
One difficulty we frequently encounter when deciding what is appropriate placement for a juvenile is determining age – stemming from false reporting, language barriers, and other circumstances. I have ordered a review of current procedures – dental exams and x-rays -- used to determine the age of an individual in our custody to see if we can develop, in consultation with the Public Health Service, a more refined method. This would better ensure that those under the age of 18 are treated appropriately and are protected from adults misrepresenting their age.
As I mentioned earlier, children who have been victims of abuse, neglect, or abandonment require special protection, and they can receive this by applying for special immigrant juvenile classification. INS is reviewing existing procedures for handling these cases, and we will soon publish a proposed rule clarifying application procedures. In the interim, I am directing all INS district offices to review their records regarding applications for consent and forward to Headquarters all requests that have been pending for more than three months.
My vision for children's issues does not end with these proposals. I am committed to providing the Office of Juvenile Affairs with the resources and support it needs to reach the goal we share: ensuring that all juveniles are treated with compassion and dignity. I am also committed to investigating the future of children's issues within our immigration framework. I will continue working with other components of the Justice Department and other agencies to develop alternative approaches to adjudicating children's claims. I also invite members of Congress and the advocacy community to participate with me in discussions of how best to serve the interests of juveniles in our care. And in that vein, I want to recognize Senators Dianne Feinstein and Michael DeWine for their leadership on this issue.
With so much attention being focused on our response to September 11, it is easy to neglect the considerable progress INS has made in carrying out its “routine” duties, which I quickly discovered are anything but routine.
I want to share some statistics that reflect significant improvements made in the delivery of services, an area where the INS has been criticized in the past. In FY 1999, the average wait for adjustment of status applications was 30 months. Today, it is down to 13 months. That’s because we are now completing 75,000 applications a month, triple the number processed three years ago. For business case processing – employment and H1-B visas, the average wait in 1999 was 8 months. It is now just two months. And the average waiting time for the processing of naturalization applications, which was two years or longer in 1999, has been cut by more than half. We, however, need to do better. INS remains committed to achieving the six-month processing standard set by President Bush.
Naturalization is a vital area where I envision INS doing much more than it does now. I’m not referring to a further reduction in waiting times. That’s a given. I'm referring to the need for INS to make the naturalization process more meaningful for applicants and to assist potential new Americans in becoming full and equal participants in our society. Compared to some other nations, we generally do not offer significant assistance to those who we want to bring into the mainstream of our values and society. I'm pleased to see that the Forum has already recognized this need to do more, and, toward that end, established the Center for the New American Community.
As Commissioner, I want INS to become more involved in the assimilation process. I want to identify areas where we can encourage immigrants to become more active in civic participation, more schooled in our Constitution and system of government, and to be better prepared to speak, read, and write English in a rapidly changing American society. This can and should be done in a spirit of cooperation and goodwill. But it is something that I believe must be done.
Some believe that our migration talks with Mexico have been forgotten in the wake of September 11. I assure you that is not the case. Earlier this week Assistant Secretary of State Mary Ryan and I hosted a group of high-level Mexican officials to discuss ways of moving forward on a range of immigration and security issues. Agendas for future meetings were discussed. We should move forward in this area, not because it is in Mexico's interest, but because it is in America's national interest.
The fundamental reality is that U.S. employers need Mexican workers. These workers are important to the U.S. economy both today and, most importantly, in the future. If we can find a way to move a substantial portion of the current illegal flow from Mexico into legal channels via a temporary worker program and can combine that with new, cooperative law enforcement arrangements with Mexico, it could benefit the U.S. economy, substantially reduce illegal migration, and enable the Border Patrol and other law enforcement personnel to concentrate on dangerous criminal and potential terrorist activity on the border and in the interior of the United States. These are substantial national interests. I believe that one of the best ways to enhance our security is by breaking the backbone of the criminal underground that profits from smuggling human beings into the United States.
I know many of you are interested in the fate of legislation to extend 245(i). I want you to know that the Administration remains supportive and will continue to work with the Congress to pass legislation is this area.
Many factors will determine whether my vision for INS becomes a reality, but none presents a greater obstacle than the agency’s current structure. This Administration recognizes that the existing structure impedes improved performance, and has developed a plan to change it. The plan is not tinkering at the edges, but represents a major restructuring that, with the help of Congress, can be achieved administratively.
Our plan splits INS’ enforcement and services functions into two distinct bureaus -- the Bureau of Immigration Services and the Bureau of Immigration Enforcement -- but they are kept under one roof, with a single head of the agency. Our current region and district structure will be replaced with separate area structures for services and enforcement, with the Bureau of Immigration Services divided into six geographic areas and the Bureau of Enforcement into nine enforcement areas. Additionally, to improve accountability, we are creating an Office of Customer Relations in the services bureau and an Ombudsman in the enforcement bureau.
This new structure will provide clarity of function -- something INS has sorely lacked -- while enhancing accountability and professionalism. We are also confident that the plan will create an opportunity to modernize our systems, make our procedures more efficient, and adjust intelligently to the increased workload the agency has, and will continue to face, in both services and enforcement.
It is not just you and other INS’ constituents who deserve a better agency; so do our employees. They are great people – motivated, dedicated, and highly professional. I have a pact with them that we will openly admit to weaknesses and failures and fix them.
In closing, I would like to offer some personal reflections on our national identity. Fear is something that we have always disdained. Courage is our signature. Taking risks on new people and new ideas fuels our drive to achieve and maintain a society that is the envy of all history. Practicing and protecting freedom has given wing to a reality about which men of yore could only have fantasized. If fear blinds our eyes to the new and the untried, and freedom is relegated to the ash heap of history, we will stumble into an abyss from which there is no return.
Cite as AILA Doc. No. 02021371.