Statement of Warren R. Leiden and AILA on S. 1563

Statement of Warren R. Leiden American Immigration Lawyers Association on S. 1563 – The INS Reform and Border Security Act of 1999 Before the Senate Committee on the Judiciary Subcommittee on Immigration September 23, 1999

Mr. Chairman and distinguished Members of the Subcommittee, I am honored to be here today representing the American Immigration Lawyers Association (AILA).  AILA strongly supports S. 1563, the INS Reform and Border Security Act of 1999, recently introduced by Senators Abraham, Kennedy and Hagel.  S. 1563 will go a long way toward resolving the many complicated issues raised when reorganizing a federal agency that affects the lives of many people.

By way of introduction, AILA is the pre-eminent immigration bar association, with nearly 6,000 attorney members, and is affiliated with the American Bar Association.   AILA takes a very broad view on immigration matters. That is because AILA Members represent individuals and families who have applied for permanent residence; thousands of U.S. businesses that sponsor both temporary and permanent workers; foreign students, entertainers, athletes, and asylum seekers, often on a pro bono basis. AILA appreciates this opportunity to express its views on the issue of the restructuring of the Immigration and Naturalization Service (INS).

Before discussing S. 1563, let me frame the issue for you. 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.  However, it has failed to do so. There are many reasons for that failure, and both the INS and Congress share some responsibility. First, the agency has the important combined mission of immigration enforcement and adjudications which together are too different functions that need to be both better differentiated but also coordinated.  Second, are the vast changes in immigration law, the unprecedented growth in the INS’ size and responsibilities, and ineffective management.  Thirdly, is the continued absence of adequate resources on the adjudications side that Congress, as it addresses restructuring, also must address.  Finally, Congress has contributed to the agency’s problems because of conflicting, complicated, and unfunded mandates.  The results are: that people wait years to reunite with close family members or to obtain U.S. citizenship, businesses wait years to fill a job with a needed legal immigrant, and immigration laws are not enforced consistently, professionally, or humanely.

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 immigration services and enforcement functions.  If a new, independent agency is unfeasible, AILA urges the creation within the Department of Justice of two separate entities for services and enforcement. Those new bureaus should be overseen by an Associate Attorney General for Immigration Matters, reporting directly to the Attorney General. Having such a person in charge would improve accountability by fully integrating policy making with policy implementation, ensure direct access to high-level officials within the executive branch, attract top managerial talent, and coordinate the efforts of the two bureaus.

To put it as simply as possible, Congress should separate the adjudications and enforcement functions but keep them in the Department of Justice. There must be strategic coordination between the two functions. There also must be a single, focused, national chain of command to pursue both an integrated national enforcement strategy and the immigration services functions. As I wrote in my statement in the 1997 final report to Congress of the U.S. Commission on Immigration Reform:

Separation of functions would permit the establishment of unified, focused chains of command and operations at every level.   Separation of enforcement from adjudications would allow each function to have a clear mission and to set clear goals on which performance could be judged and accountability enforced.  Separate functions would benefit greatly from the ability to gear hiring, training, promotions, and discipline to a clear mission. . . .

The two main functions of the INS – enforcement and adjudications – should be separated into two different agencies within the Department of Justice, with separate leadership.  This would also permit the insertion of a senior level office in the Department of Justice to coordinate and lead the separate functional agencies.

AILA shares those views. As a result, AILA has resolved that any INS reform must be based on the following four principles:

(1)   Separation of the enforcement and adjudications functions:

Separation 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.  S. 1563 meets that principle. It would create two separate Bureaus within a newly created Immigration Affairs Agency in the Department of Justice: The Immigration Services and Adjudications Bureau and the Immigration Enforcement and Border Affairs Bureau. S. 1563 provides for coordination between the two Bureaus; it also establishes immigration inspections, which combines service and enforcement functions, as a separate entity within the Immigration Affairs Agency. While AILA believes that inspections is almost entirely an adjudications function (and thus most properly belongs in the Immigration Services and Adjudications Bureau, we do not oppose this function as a separate entity within the agency).

     Contrast that with H.R. 2528, introduced by Representatives Rogers (R-KY), Smith (R-TX) and Reyes (D-TX), which would divorce the INS’ enforcement and adjudications functions.  In addition, H.R. 2528 would improperly house immigration inspections in the enforcement bureau.  AILA strongly opposes that provision, because inspectors have quasi-judicial authority and placing them in an enforcement bureau would provide no checks or balances to ensure that inspectors do not deport legitimate asylum seekers, refugees or immigrants. In addition, H.R. 2528 would require that people applying for asylum and others be detained by the Bureau of Prisons.  Locking up refugees and immigrants with convicted criminals violates international treaties to which the U.S. government is a signatory,

(2)  Accountability and leadership at the top:  Appoint a high level, full-time person at the top, in charge of supervising both functions, who will be able to integrate policy making with policy implementation, as well as to coordinate the separate service and enforcement chains of command.

There needs to be one full-time, high level person in charge of our nation’s immigration functions. S. 1563 fulfills that principle by creating the Associate Attorney General for Immigration Affairs. Having one person in charge would improve accountability by fully integrating policy making with policy implementation, ensure direct access to high-level officials within the executive branch, attract top managerial talent, and coordinate the efforts of the two bureaus. In contrast, H.R. 2528 provides for no full-time coordinating entity, thereby making it virtually impossible to articulate a coherent, unified immigration policy

(3)     Split the functions, but establish coordination between enforcement and adjudications.

S. 1653 recognizes the need for the two bureaus to be closely coordinated.  This bill achieves this coordination by providing that a high-ranking official, with authority over the two bureaus and shared support services, is able to coordinate shared information systems, legal counsel, policy, and administrative infrastructure, including personnel and training.

In contrast, H.R. 2528 would make such coordination difficult.  The two bureaus would end up working at cross-purposes, with its leaders sending conflicting messages on policy matters of complex laws.  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 (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)      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.

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. Senate 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.

(4)  Adequate resources:   Provide Adequate Resources for the Adjudications Function.  Ensure that direct Congressional appropriations are available to supplement user fees.

As Congress ponders reforming the INS, we urge you to also review the funding of immigration functions. Currently, enforcement functions are supported by Congressional appropriations, while adjudiciations 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 users fees are diverted to support other functions.  During FY 1998 and FY 1999, for example, Congress mandated the diversion of about $300 million to pay for detention, Department of Justice Oversight, Inspector General investigations, and infrastructure costs not related to directly supporting immigration benefits.  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 which do not generate fees should be shared among all taxpayers – not just those who happen to be tax-paying immigrants

AILA supported the establishment of the Exam 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.

S. 1563  recognizes this problem, and provides financing reforms.  It specifically would require that fees collected for an adjudication or naturalization service be used only to fund those services or the costs of other similar adjudications. In contrast, H.R. 2528’s stunning silence on funding virtually would 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 closing, let me reiterate that AILA strongly urges passage of S. 1563 because it adheres to the four principles noted above.  It also is important to remember that:

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

·         Congress has the opportunity to make reorganization a success: Congress must be ever mindful about its important role in creating and maintaining a vital and successful federal immigration function.  Conflicting, complicated and unfunded 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 diversion of funds in the adjudications function noted above, any successful restructuring plan must respond to the funding demands of the adjudcations function.  Both enforcement and adjudications are in the national interest and should be adequately funded.

AILA is dedicated to working with Congress and the INS to ensure that reorganization succeeds. S. 1653 is a huge step towards that end. We appreciate the opportunity this hearing has given us to explore this important issue. Thank you.

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