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. 01013003 | Dated January 30, 2001
Senator Ashcroft’s Written Replies to Questions
Raised During Confirmation Hearing
16) As Attorney General, you will have jurisdiction over the Immigration and Naturalization Service, an agency plagued with many problems and in need of reform. President Bush has stated that he supports a comprehensive reform of the INS, similar to legislation Senator Spencer Abraham and I introduced last Congress. This plan would separate the enforcement and service functions of the INS, but keep them under one agency headed by an Associate Attorney General. Maintaining a strong central authority ensures a uniform and coherent immigration policy, resulting in both strong and fair enforcement of our immigration laws, and efficient delivery of immigration services.
As Attorney General, how do you envision balancing the INS's often conflicting missions of enforcement and services? What measures would you propose to ensure adequate funding for the service functions?
If I am fortunate enough to be confirmed as Attorney General, I will strongly support the President's proposal to reform the INS comprehensively and divide it into separate service and enforcement agencies. As the President has said, legal immigrants should be welcomed with respect and open arms, and service to legal immigrants should not be delivered with suspicion or hostility. I recognize the important leadership you and Senator Abraham have taken in this regard, and look forward to working with you to implement these reforms.
17) As you know, our nation was largely founded by persons fleeing religious persecution in Europe. Christians and other religious minorities are still suffering serious persecution in many countries around the world. Some of the more fortunate individuals succeed in escaping and are accepted into the U.S. refugee program. Others, seeking asylum in the U.S., are not as fortunate.Too often, under the present law of expedited removal, immigration officers, with no special training in asylum law or human rights conditions in particular countries have the authority to summarily place asylum seekers on the next plane back to the country of their oppressor. These decisions are made with no independent monitoring or judicial review. In many cases, these INS enforcement officers have turned back asylum seekers even though they have expressed clear fear of return.
Is this a fair way to treat people fleeing persecution? As Attorney General, would you support legislation, such as that introduced by Senator Brownback and Senator Leahy, to limit the use of expedited removal?
Although I cannot comment on specific legislation, I believe we should treat those fleeing persecution with compassion and fairness. America was founded as a beacon of hope to the world, and that is a heritage we should continue. I will be happy to work with you and with Senators Brownback and Leahy to ensure that our immigration laws are administered fairly and humanely.
18) In 1996, Congress tightened the immigration laws. For example, Congress redefined and expanded the types of offenses for which immigrants, including lawful permanent residents, can be deported and applied those definitions retroactively. The new laws also eliminated the ability of immigration judges to consider mitigating factors such as length of time in the U.S., community ties, family hardship, rehabilitation, and even U.S. military service, when deciding whether to deport a person. The laws also removed the ability of the federal courts to review deportation decisions. The result is that long-time, law-abiding immigrants with U.S. citizen spouses and children have been deported for minor offenses committed long ago. These changes seem to violate fundamental principles of family integrity, individual liberty, and due process.
As Attorney General would you support changes in the immigration law that would eliminate the retroactive application of these provisions, restore discretion to immigration judges to make case-by-case determinations, and restore judicial review?
I am certainly troubled by some of the stories that have emerged as a result of the 1996 law. I know that there have been both legislative and administrative attempts to address these kinds of concerns, and I look forward to working with you to see if we can find a way to do so while at the same time allowing for the swift removal of serious or violent criminals.
19) The INS is currently using secret evidence -- undisclosed classified information -- to deny bond, asylum, and other immigration benefits to non-citizens, who it claims are risks to national security. President Bush has called this an unfair practice and spoke favorably during the Presidential debates of a bil l I co-sponsored last year with Senator Abraham - the Secret Evidence Repeal Act. In 1995, you voted for a Specter amendment (No. 1250) to the Comprehensive Terrorism Prevention Act of 1995 that would require the Attorney General to provide an unclassified summary of the reasons for the initiation of deportation proceedings against a person, where classified information justifying the deportation is not disclosed. Although this amendment was adopted, the provision was ultimately dropped from the final legislation.
Do you agree with President Bush that such secret evidence is unfair? Would you support the Secret Evidence Repeal Act -- which President Bush spoke favorably of during the Presidential debates?
I am troubled by some of the stories I have heard about the use of secret evidence and believe that such uses must be reconciled with Due Process. While I cannot comment on specific legislation, I look forward to working with you to find a way, consistent with national security, to protect the rights of citizens and aspiring citizens coming to our nation.
Domestic Violence-Based Persecution
20) Human rights organizations and women's rights advocates have been working for many years to obtain recognition for gender-related asylum claims under U.S. refugee and asylum law. This recognition is consistent with the growing body of international human rights law and the sentiment of the international community. Canada, Britain, Australia and New Zealand recognize gender-based asylum claims, including asylum protection for victims of domestic violence.
Last month, Attorney General Reno and the INS Commissioner proposed regulations establishing a broad analytical framework for the consideration of asylum claims based on membership in a particular social group, including the recognition that victims of domestic violence may qualify for asylum. These regulations provide generally applicable principles that will govern the case-by-case adjudication of gender-based claims, including those based on domestic violence or other serious harm inflicted by non-state actors.
The Department of Justice is receiving comments from human rights groups and women's rights groups, praising the broad approach in the proposed regulations and suggesting improvements to ensure the fair adjudication of gender-based asylum claims, including domestic violence claims.
What direction will you provide as Attorney General to ensure that the broad analytical framework set forth by these proposed regulations is followed in the final regulations issued by a Department of Justice under your leadership?
Although I have not reviewed these specific proposed regulations, I believe we should treat those fleeing persecution with compassion and fairness. My commitment to fighting domestic violence and violence against women is longstanding, and I will maintain that commitment wholeheartedly at the Department of Justice. I will be happy to work with you to ensure that our immigration laws are administered fairly and humanely, in this and other respects.
Q: Are there any aspects of the 1996 Illegal Immigration Reform and Immigrant Responsibility Act that you would support changing? Please explain.
I have not examined the provisions of the 1996 legislation closely, but am aware that many people have raised a number of potential issues resulting from that legislation. If confirmed, I will study these issues carefully and work with the President and Congress to develop any reforms that might be needed to make the immigration laws fairer, more effective, and more humane.
Q: Would you support giving veterans of our armed forces an individualized hearing before being deported for relatively minor criminal offenses? Would you support giving other long-term residents of the United States individualized hearings before they are deported for similar offenses?
I believe that every individual appearing before our courts of law should be accorded the full protections of Due Process.
Q: Under the current expedited removal system, also adopted in 1996, there is strong evidence that aliens fleeing religious, political, or other forms of persecution may be summarily returned to their native countries without ever even appearing before an immigration judge. As Attorney General, would you be willing to conduct a review of this program?
LEAD-IN: In 1999, the INS took into its custody 4,607 children who came to the U.S. unaccompanied by a parent or adult guardian. More than 2,000 of these children are held in jails and youth detention centers across the country, even though the overwhelming majority of these children (80 percent) have committed no crime. The INS continues to pursue this policy remain in effect seven years after the INS agreed to hold children in the "least restrictive setting appropriate for the minor's age and special needs." I have been, appalled, quite frankly, by the way many unaccompanied alien children have been treated by the Immigration and Naturalization Service. This treatment has included the shackling and handcuffing of children who are no threat to themselves or others, long periods of confinements in inappropriate penal facilities, pressuring children to voluntarily depart the country without their having access to counsel, and inadequate avenues for humanitarian relief when that relief might be appropriate.
QUESTION: Would you agree that Congress and the Administration should take comprehensive steps to correct these problems?
The President has proposed comprehensive reform of the INS. I fully support his position on this matter. With regard to the matters enumerated in your question which would be under my authority as Attorney General, I certainly will review them. I look forward to working with you to correct any improper treatment which may take place.
Follow-Up: Late in the last Congress, I introduced S. 3117, the "Unaccompanied Alien Child Protection Act of 2000," which sought to change the manner in which unaccompanied alien children are treated by immigration authorities by addressing these issues, and more. I plan to re-introduce this bill in this Congress. My legislation would create a special Office of Children'>s Services within the Department of Justice, and the Office would be responsible for coordinating and implementing the law to ensure that unaccompanied alien children are treated appropriately by our government.
QUESTION: What are your views on the wisdom and morality of confining children who have not committed any crimes in prison or prison-like facilities?
I believe that children taken into custody by the federal government, including unaccompanied alien children, should be treated with the utmost care and compassion.
QUESTION: This issue is an important priority to me, and I really want to have your commitment to work closely with me in addressing the treatment of children in our immigration system. Can I get your support?
I pledge that if confirmed, I will work closely with you to ensure that all children in our immigration system are treated with the utmost care and compassion.
LEAD-IN: Millions of law-abiding citizens, residents, immigrants, and businesses pay fees to the INS each year to have their applications and petitions for immigration benefits adjudicated in a timely manner. Unfortunately, our constituents increasingly have been faced with extraordinary delays and incompetence. And this had had a dramatic effects on their lives and the lives of the people or companies that depend on them.
Last year, Congress enacted S. 2586, the "Immigration Services and Infrastructure Improvement Act of 2000," legislation which I introduced in the Senate. This new law created an account within the Immigration and Naturalization Service (INS) specifically devoted to reducing the immigration backlogs, and improving the overall INS process and systems used to adjudicate these important services. Under the new law, funds in the account are to be available across fiscal years, and they are to be used for such purposes as providing additional personnel, fingerprinting equipment, improved records management, and other necessary equipment and expenses. In addition to creating the account and authorizing such sums as necessary to fund it, my legislation requires an annual report to Congress on the top ten areas that have the worst immigration backlogs. It also requires the INS to explain why backlogs persist in these areas and what the agency is doing to fix them. The INS must also report on what additional resources are needed to meet Congress's mandate that backlogs be eliminated and that processing times are reduced to an acceptable time frame.
During his campaign, President-Elect Bush called for the expenditure of $500 million over five years to reduce the immigration backlog. This proposal was similar to my bill, which has now become law. The President-Elect will have to submit his fiscal year 2002 budget to Congress in the coming weeks.
QUESTION: If confirmed as Attorney General, will you work to include in the President's budget additional funding for reducing the backlog in immigration benefits adjudications?
If confirmed, I will work diligently to support the President's agenda in this area.
QUESTION: Can we count on your support for the provision of directly appropriated funds for reducing the backlog in immigration benefits adjudications, along the lines of my proposal and the President-Elect's proposal, to supplement the funds that are derived from the fee accounts?
As mentioned above, if confirmed, I will work diligently to support the President's agenda in this area.
QUESTION: Can we count on your support for insisting that appropriated funds for backlog reduction be placed into the Immigration Services Improvement and Infrastructure Account, as established by the Act, rather than in integrate those funds within the general INS accounts?
As mentioned above, if confirmed, I will work diligently to support the President's agenda in this area.
QUESTION: Even when Congress appropriates funds to the INS, management problems within the agency have affected the efficient use of these funds. What steps will you take to ensure that these funds are used as intended and will result in the efficient and timely processing of immigrant petitions and naturalization applications?
It is important that funds intended for a specific use be devoted to that use. If confirmed as Attorney General, I will work to ensure that appropriated funds are used as intended, and deployed to promote efficient and timely processing of immigrant petitions and naturalization applications. I will coordinate closely with all responsible officials in the INS.
Follow-Up: The backlog reduction law requires that the INS make a number of reports to Congress on its efforts to reduce the backlog in immigration benefits adjudication. The first of these reports is due on January 17, 2001. As you know from your service in the Senate, the INS has not been especially timely over the years in submitting reports that Congress has requested. As the author of this particular piece of legislation, and as a senator representing a large constituency that depends on the INS to perform its Service functions in a timely and efficient manner, I am going to take a special interest in making sure that the reports and goals required by this bill are adhered to.
QUESTION: Will you designate someone on your staff to work with my staff to ensure that these reports are done on a timely basis and that the reduction in these intolerable backlogs are among the highest priorities, not only of the INS, but of the Department of Justice, itself?
I pledge to you that if confirmed, I will work closely with you to help ensure that the INS fulfills its responsibilities under applicable law, and, in particular, its obligation to file timely reports pursuant to the backlog reduction law. I will make this a priority in both the INS and the Department of Justice.
LEAD-IN: Both the General Accounting Office and the U.S. Commission on Immigration Reform called for significant management reforms at the INS. In 1991, the GAO issued an extensive report identifying severe management problems across the agency. Among other things, the GAO found INS:
•Lacked clear priorities;
•Lacked management control over regional commissioners;
•Had poor internal communications and outdated policies;
•Did not take workload into account when allocating resources -- which contributed to the high backlog of applications; and
•Had unreliable financial information and thus inadequate budget monitoring.
The U.S. Commission on Immigration Reform found that despite increases in funding and authority, the current federal immigration structure leads to "mission overload," resulting in ineffective management of the four core functions of our immigration system: border and interior enforcement; enforcement of immigration-related employment standards; adjudication of immigration and naturalization applications; and consolidation of administrative appeals. According to the Commission, "mission overload" results from the fact that the agency charged with implementing our immigration laws have so many responsibilities that they are unable to manage all of them effectively. And, with an immigration landscape that is growing in complexity and size, no one agency could have the capacity to effectively manage every aspect of immigration policy imaginable. I am a strong supporter of the reform bill proposed in the Senate in the 106th Congress, which would separate the Service into bureaus: one for Enforcement and one for Service. An Associate Attorney General for Immigration Affairs would oversee both bureaus. I would like to count on your support for making this a priority for the Justice Department.
QUESTION: If you are confirmed, what immediate reforms would you make to the agency?
The President has proposed a comprehensive reform of the Immigration and Naturalization Service to help change its character and to make America more welcoming to new immigrants. Currently, for example, the INS takes 3-5 years or more simply to process an immigration application. There is no justification for processing to take 3-5 years; an INS properly focused on service would move much faster. The President believes every INS application should be fully processed within 180 days of submission. To meet this 6-month standard, and to introduce a fundamental shift in the approach of the INS, the President will: (1) Support legislation to divide the INS into two separate agencies: one to deal with the enforcement components of border protection and interior enforcement, and another to deal with the service components of naturalization. Both agencies will be headed by an Associate Attorney General for Immigration Affairs, who will supervise both functions, and make sure that the agencies are taking consistent legal and policy approaches. (2) Support a comprehensive set of civil-service reforms, ways to make government more responsive to its customers. He will follow the same principles with the INS. In particular, he will introduce performance incentives for employees to process cases quickly, and make customer satisfaction a priority. (3) Propose an additional $500 million over 5 years to fund new personnel and increased employee incentives to provide quality service to all legal immigrants. (4) Support changes in the INS policy so that spouses and minor children of legal permanent residents are allowed to apply for visitor visas while their immigration applications are pending. He will reverse the presumption that such family members will violate their terms of admission, and will encourage family reunification for legal immigrants. If confirmed, I will fully support the President's agenda in this area.
QUESTION: If your approach would differ from the Senate bill, please explain the reforms you would propose.
I believe that my answer to the preceding question outlines the President's approach in this area, which I would fully support.
Additional Immigration Questions:
1. Worksite Enforcement. We can all agree that we have a large number of unlawful migrants here , and they come because employers offer them work opportunities. If you are interested in controlling illegal immigration, what policies would you put in place to enforce the immigration laws at the work place?
If confirmed, I would fully and fairly enforce all of the laws relating to immigration--both legal and illegal. By enforcing such laws vigorously, we can, I believe, both control illegal immigration and promote the interests of those who are in this country lawfully.
2. Alien Smuggling and Trafficking. I am very concerned about the significant increase in organized trafficking. [GAO] As you may know, Congress passed---- What mechanisms will you put in place to both deter traffickers and assist the victims of trafficking?
No human being should be forced to suffer the indignity of being a victim of human trafficking. I will vigorously enforce all laws enacted by Congress in this area to combat this abhorrent practice.
14. MAIL ORDER BRIDES AND HUMAN TRAFFICKING
In 1996, as part of the Immigration Bill, the Senate passed my measure that called for the INS to issue a study about the growing "mail-order bride" business in the United States. The INS was also to draft a regulation aimed at requiring these so-called "international matchmaking organizations" to provide their foreign women recruits with background information regarding U.S. immigration law. At the very least, that is what INS was supposed to do according to the law we passed almost five years ago.
The INS issued a report which suggested that recent developments, in particular the presence of mail-order businesses on the Internet, will require continued monitoring of this business. More recent events, such as the discovery of a slain mail-order bride near Seattle - her American husband is the suspected murderer - suggest that violence in these types of marriages is a growing problem.
The INS has yet to issue the proposed regulation as required by the 1996 law. That is unfortunate, because we need to get after these matchmaking agencies to both better inform the potential brides-to-be, and screen the American bride seekers.
QUESTION: First, do you agree there's a problem with this mail-order bride industry? If so, will you instruct the INS to take a more active role in policing these practices? At the very least, will you see to it that the INS issue the proposed regulation that is almost four years overdue?
I believe that marriage is an institution that should be cherished, and as Attorney General, I will fully enforce all federal laws concerning human trafficking. I have not examined the issue of mail order brides in depth, but if confirmed, I will give it appropriate attention, and ensure that the INS takes all appropriate action required by law, including the laws to which you refer.
15. TRAFFICKING OF WOMEN AND CHILDREN
Trafficking of women and children is a growing global problem, teetering on crisis. It is hard to believe that an international prostitution and slave trade is thriving - and growing - in the year 2001. Almost 50,000 persons are trafficked each year to the United States. These people are victims, not criminals. The real offenders are the crime lords who manage this despicable trade.
Significant legislation became law late last year - specifically, the Victims of Trafficking and Violence Protection Act of 2000. Part of the goal of this new law is to target the traffickers, not the victims. So, the act lets the Attorney General extend special visas to 5000 sex trafficking victims a year. Hopefully, by allowing the victims to remain protected in this country, we will be able to encourage their cooperation in bringing down the traffickers.
QUESTION: The success of this law will be depend upon its implementation. As Attorney General, will you be dedicated to issuing these 5000 newly created visas in an effort to crackdown on international human trafficking? What is your feeling generally about how best to fight this terrible practice that terrorizes hundreds of thousands of women and children each year?
Like you, I believe that human trafficking is a serious problem. No individual, anywhere, should suffer the indignity of the slave trade. Thus, if confirmed as Attorney General, I will fully and vigorously enforce the Victims of Trafficking and Violence Protection Act of 2000, and any other law that Congress chooses to enact in this area.
Cite as AILA Doc. No. 01013003.