Recently the handling of civil immigration detainers by local law departments has been heavily scrutinized.
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."
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.