[Senate Hearing 107-931]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 107-931

     IMMIGRATION REFORM AND THE REORGANIZATION OF HOMELAND DEFENSE

=======================================================================

                                HEARING

                               before the

                      SUBCOMMITTEE ON IMMIGRATION

                                 of the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED SEVENTH CONGRESS

                             SECOND SESSION

                               __________

                             JUNE 26, 2002

                               __________

                          Serial No. J-107-90

                               __________

         Printed for the use of the Committee on the Judiciary


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                            WASHINGTON : 2003
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                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts     ORRIN G. HATCH, Utah
JOSEPH R. BIDEN, Jr., Delaware       STROM THURMOND, South Carolina
HERBERT KOHL, Wisconsin              CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California         ARLEN SPECTER, Pennsylvania
RUSSELL D. FEINGOLD, Wisconsin       JON KYL, Arizona
CHARLES E. SCHUMER, New York         MIKE DeWINE, Ohio
RICHARD J. DURBIN, Illinois          JEFF SESSIONS, Alabama
MARIA CANTWELL, Washington           SAM BROWNBACK, Kansas
JOHN EDWARDS, North Carolina         MITCH McCONNELL, Kentucky
       Bruce A. Cohen, Majority Chief Counsel and Staff Director
                  Sharon Prost, Minority Chief Counsel
                Makan Delrahim, Minority Staff Director
                                 ------                                

                      Subcommittee on Immigration

               EDWARD M. KENNEDY, Massachusetts, Chairman
DIANNE FEINSTEIN, California         SAM BROWNBACK, Kansas
CHARLES E. SCHUMER, New York         ARLEN SPECTER, Pennsylvania
RICHARD J. DURBIN, Illinois          CHARLES E. GRASSLEY, Iowa
MARIA CANTWELL, Washington           JON KYL, Arizona
JOHN EDWARDS, North Carolina         MIKE DeWINE, Ohio
                 Melody Barnes, Majority Chief Counsel
                Stuart Anderson, Minority Chief Counsel


                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

Brownback, Hon. Sam, a U.S. Senator from the State of Kansas.....     2
Cantwell, Hon. Maria, a U.S. Senator from the State of 
  Washington, prepared statement.................................    36
Durbin, Hon. Richard J., a U.S. Senator from the State of 
  Illinois.......................................................     5
Feinstein, Hon. Dianne, a U.S. Senator from the State of 
  California.....................................................     4
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa, 
  prepared statement.............................................    44
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah, 
  prepared statement.............................................    53
Kennedy, Hon. Edward M., a U.S. Senator from the State of 
  Massachusetts..................................................     1
    prepared statement...........................................    99

                               WITNESSES

Hing, Bill Ong, Professor, University of California-Davis School 
  of Law and Asian American Studies, on behalf of the National 
  Asian Pacific American Legal Consortium, San Francisco, 
  California.....................................................    10
Keener, Dana Marks, President, National Association of 
  Immigration Judges, San Francisco, California..................    14
Martin, David A., Professor of Law, University of Virginia School 
  of Law, Charlottesville, Virginia..............................    11
Walker, Kathleen Campbell, American Immigration Lawyers 
  Association, El Paso, Texas....................................     7

                       SUBMISSIONS FOR THE RECORD

American Civil Liberties Union, Timothy H. Edgar, Legislative 
  Counsel, Washington, D.C., statement...........................    26
Center for Immigration Studies, Washington, D.C., charts.........    38
Hing, Bill Ong, Professor, University of California, Davis School 
  of Law and Asian American Studies, National Advisory Council, 
  National Asian Pacific American Legal Consortium, Washington, 
  D.C., statement................................................    55
Institute for the Study of International Migration, Georgetown 
  University, Susan F. Martin, Director, Andrew Schoenholtz, 
  Director of Law and Policy Studies, Washington, D.C., statement    62
Keener, Dana Marks, President, National Association of 
  Immigration Judges, Washington, D.C., statement................    70
Martin, David A., Doherty Professor of Law and Weber Research 
  Professor of Civil Liberties and Human Rights, University of 
  Virginia, Charlottesville, Virginia, statement.................   102
McCollum, Hon. Bill, former Member of Congress from the State of 
  Florida, statement.............................................   114
Walker, Kathleen Campbell, American Immigration Lawyers 
  Association, Washington, D.C., statement.......................   119

 
     IMMIGRATION REFORM AND THE REORGANIZATION OF HOMELAND DEFENSE

                              ----------                              


                        WEDNESDAY, JUNE 26, 2002

                                       U.S. Senate,
                               Subcommittee on Immigration,
                                Committee on the Judiciary,
                                                   Washington, D.C.
    The Subcommittee met, pursuant to notice, at 2:13 p.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Edward M. 
Kennedy, Chairman of the Subcommittee, presiding.
    Present: Senators Kennedy, Feinstein, Durbin, and 
Brownback.

 STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR FROM THE 
                     STATE OF MASSACHUSETTS

    Chairman Kennedy. We will come to order.
    Today, our Subcommittee considers the many immigration 
issues relating to homeland security reform. Immigration is a 
central part of our heritage and history, and essential to who 
we are as Americans. In defending the Nation, we cannot lose 
sight of our tradition as a Nation of immigrants and a safe 
haven for the oppressed.
    The administration's proposal to include the Immigration 
and Naturalization Service in the new Department of Homeland 
Security raises serious questions about the consequences for 
immigration law and policy, and the adjudication of immigration 
services and benefits.
    Reorganization may help in some instances to improve the 
lines of command, but it is not a panacea. A reshuffling of 
agencies that fails to address such fundamental problems as 
poor information-sharing, inefficient management structures, 
and insufficient resources will do little to improve security 
for the American people.
    This is particularly true for the Immigration and 
Naturalization Service, which has been plagued with problems. 
Simply including immigration functions in a new, larger 
department, without instituting essential reforms, will not 
solve the agency's problems and will not enhance our security. 
Simply put, reorganization without reform will not work.
    I have been working with Senator Brownback, Senator 
Feinstein, and others on this subcommittee to examine ways to 
restructure the INS and bring our immigration system into the 
21st century. We have introduced comprehensive legislation to 
reform the agency and provide a more effective and efficient 
framework to meet our immigration responsibilities.
    With respect to the administration's proposal, I am 
concerned about moving immigration service functions, such as 
naturalization and asylum and refugee adjudications, into a new 
department that has as its principal mission preventing 
terrorism.
    It will be difficult to transfer the enforcement functions 
of INS to the Department of Homeland Security and leave the 
service functions of INS in the Department of Justice. Under 
this scenario, the service functions, already the step-child of 
the INS, will be further neglected and weakened. In order to 
protect these very important service functions, it may be 
better to transfer all of INS to Homeland Security, but raise 
the status of immigration in that agency.
    Under the President's plan, immigration is located in one 
of four divisions, the Border and Transportation Security 
Division--I know everyone has seen those organization charts--
which gives little recognition to the need for close ties 
between the service and enforcement functions.
    To remedy this problem, a fifth division, Immigration 
Affairs, could be created that would contain bureaus of 
enforcement and immigration services set up along the lines of 
our legislation. This option would ensure better coordination 
between services and enforcement, institute much needed reforms 
in INS, and place services in a position where they could be a 
more equal partner in the mission.
    In any scenario, an Office of Juvenile Affairs, as proposed 
in our legislation, should be created, but it should not be 
placed in Homeland Security.
    We must also reconsider the best place for the Executive 
Office for Immigration Review, the immigration court system. 
Moving this office into a new security department would 
undermine its ability to independently hear and decide 
important immigration matters. Supporting is growing to create 
an independent agency to oversee this important function.
    Finally, I am concerned about the administration's proposal 
to move the Department of State's visa issuance function to the 
new Homeland Security Department. Consular officers are trained 
as diplomats to represent the U.S., and the manner in which 
they fulfill those duties can have a significant impact on our 
relations with foreign countries. With accurate and timely 
information, the State Department is well equipped to continue 
to handle the issuance of visas. We have already spent a lot of 
time on this issue, in terms of the border security issues to 
deal with those questions.
    I look forward to working with the administration and my 
colleagues to see that the current reorganization deals 
effectively with these important issues. I thank the witnesses 
for being with us and look forward to their testimony. I call 
on Senator Brownback.
    [The prepared statement of Senator Kennedy appears as a 
submission for the record.]

STATEMENT OF HON. SAM BROWNBACK, A U.S. SENATOR FROM THE STATE 
                           OF KANSAS

    Senator Brownback. Thank you, Mr. Chairman, for holding the 
hearing. It is an important topic and it is an important 
discussion for us to have.
    First, I would like to commend the President and Governor 
Ridge for their heartfelt commitment to enhancing the security 
of this great Nation. This is a great and noble task, and I 
admire them for their work. I support the President's efforts 
to create a Homeland Security Department, and agree that the 
formation of that department is time-sensitive. We need to move 
forward rapidly.
    Still, we have to be careful that, despite the urgency, we 
get it right. As you just said, the two of us have been working 
on and studying INS reform for some time and agree on the 
importance of a coordinated immigration agency, true to a dual 
mission of immigration enforcement and immigration services.
    Mr. Chairman, I take great pride in the fact that the 
Border Security Act, which we and our colleagues on the 
committee drafted--Senator Kyl, Senator Feinstein, Senator 
Hatch, and others--was intelligent and balanced. We were true 
both to our responsibility to protect our great Nation from 
those who mean us harm and to keep our country open to those 
who mean us well.
    As we consider not just restructuring the INS, but 
reconfiguring large segments of our Federal Government, we must 
be mindful of both of these responsibilities. We also must keep 
in mind that enforcing immigration laws is complex, and 
immigration enforcement goes well beyond any gatekeeper 
function.
    Not only do we need to intercept terrorists, but we also 
need to investigate fraud, remove criminal aliens, and enforce 
employment-related immigration laws. Additionally, immigration 
functions are not limited to the ports of entry. In fact, they 
extend to a wide array of determinations that are made within 
the United States.
    Those determinations range from naturalization and 
citizenship applications, to family and business petitions, to 
work permits and employer sanctions. These are the services 
that are currently provided by the INS, and we must be careful 
that in our rightful zeal to thwart terrorism we don't alienate 
our families, friends, and business partners in the process.
    The role of services to enforcement and security cannot be 
overlooked. Good services mean good security. Prompt 
adjudication closes security loopholes and deters fraud, all 
the while showing proper regard for the families, businesses, 
and aspiring citizens that file those applications.
    In the immigration context, enforcement and services must 
be coordinated. They must operate hand-in-hand. We can, and 
must, enforce the immigration laws effectively and provide 
timely and competent immigration services. This must take place 
wherever immigration responsibilities are located.
    Mr. Chairman, I appreciate your concerns about the movement 
particularly of the EOIR away from the Justice Department. We 
certainly do not want to compromise unbiased courtroom review 
of immigration cases, and we should either keep the immigration 
court system with the Department of Justice or set up an 
independent agency. This is a topic worthy of further 
discussion.
    I look forward to us working on this, and I would want to 
join a comment that the chairman made about we had already put 
forward a proposal for restructuring of the INS. I don't think 
it serves us well to move an agency lock, stock and barrel but 
not reform it.
    INS was broken before the proposal for a Homeland Security 
Agency. It remains that way and it needs to be fixed before it 
goes anywhere or stays where it is. I think we need to get this 
right and we need to do it right. We have a proposal that we 
have put forward, the House of Representatives has passed a 
proposal, and the administration has put forward a proposal. I 
am hopeful that we can work those together, get this agency 
formed the right way, and get us moving further down the road.
    Thank you for holding the hearing.
    Chairman Kennedy. Thank you.
    Senator Feinstein?

  STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM THE 
                      STATE OF CALIFORNIA

    Senator Feinstein. Thanks very much, Mr. Chairman. I would 
just like to begin by acknowledging the presence of two 
distinguished Californians. You have the good taste of knowing 
where the body of knowledge on this issue rests and I commend 
you for it.
    I would like particularly to acknowledge the presence of 
Professor Bill Ong Hing, of the University of California at 
Davis School of Law, and Judge Dana Marks Keener, President of 
the National Association of Immigration Judges. They are both 
San Francisco residents, and so it is great to have you here.
    Mr. Chairman, this is now my third hearing. Yesterday, the 
Terrorism and Technology Subcommittee heard Senator Rudman on 
his report. We heard from Governor Gilmore on his, and two 
experts from Brookings and one from the Cato Institute. This 
morning, the full committee heard Governor Ridge make his 
presentation.
    As you know, the Hart-Rudman Commission recommended that 
just the Border Patrol go into a homeland defense or security 
type agency. As I have watched INS over the past decade, I 
would like to just kind of summarize what I have seen.
    What I have seen is dramatic mission overload, and then, 
second, equally dramatic mission conflict. By that I mean the 
humanitarian concerns versus the national security concerns 
which, of course, have been crystallized by what happened on 9/
11.
    The agency, although it has enforcement functions, keeps 
getting humanitarian-type messages, I think, both from the 
Congress as well as from the organizations that traditionally 
lobby here. Therefore, what has evolved is an organization that 
really isn't tightly controlled, has this mission conflict, is 
technologically insufficient, and does not have adequate modern 
management oversight. It has created almost a paralysis in 
certain areas.
    We have seen since 9/11 that the INS suffers from a lack of 
high-quality information on potential threats to national 
security.
    Senator you mentioned that you didn't think the visa 
authority ought to be in the new homeland defense agency. I do. 
Senator Kyl and I conducted a hearing. We had Mary Ryan, from 
the State Department, who presides over the consular affairs 
offices, and she told us that when the hijackers came in for 
visas in Saudi Arabia, they looked in their system and they had 
no intelligence about those hijackers. As a matter of fact, she 
got very upset because she said ``we granted their visas and we 
feel like we ran over a child on the highway; that is how badly 
we feel about it.''
    It really pointed out that, at least in terms of our 
systems, national security certainly wasn't a concern in giving 
visas. It is today, and therefore I feel very strongly that the 
visa aspects ought to be in the department. I feel very 
strongly that there is good evidence to say that enforcement 
and service, because they have been so conflicted within the 
agency, might be better approached in separate agencies.
    Now, having said that, I asked the question this morning of 
Governor Ridge and I pointed out to him that we have 5,000 
unaccompanied children who are in custody under INS today, with 
no resort to counsel, with no resort to an ad litem guardian, 
unable to speak the language.
    If you look back at Elian Gonzalez, if it weren't for his 
having a family in Miami, he could well have been in an 
institution somewhere for a long time. There are 5,000 children 
like that on any given day of the year. We have been trying to 
change that.
    I said to Governor Ridge that I don't think that an office 
of children's services should be in the homeland defense 
agency. I don't think that marriage fraud should be part of the 
mission of homeland defense. I don't think that workplace 
inspections should be part of homeland defense. I think it will 
just deter homeland defense.
    In any event, my own view at this stage is that there are 
certain aspects of immigration that might well be transferred 
into a homeland defense agency, but I think we should take our 
time and look very carefully at what they are, because we do 
have a mission and national security as well as humanitarian 
efforts are part of that mission.
    I am just not sure that if we put the entire INS within a 
huge, mega department that we are going to accomplish anything 
in terms of seeing that the service, as well as the 
enforcement, is well carried out.
    Thank you.
    Chairman Kennedy. Thank you very much.
    Senator Durbin has joined us.

 STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR FROM THE 
                       STATE OF ILLINOIS

    Senator Durbin. Thanks, Chairman, and I thank you and 
Senator Brownback for this hearing today.
    I certainly listened carefully to my colleague, Senator 
Feinstein, and would agree with her general review of the 
Immigration and Naturalization Service. I might add, as well, 
that when it comes to technology, we are going to have to make 
some fundamental decisions here about the Immigration and 
Naturalization Service and the improvement of technology and 
how it will be used.
    We just recently were told that the INS efforts to track 
one million international students in this country is behind 
schedule. Last month, Glen Fine, the Justice Department's 
Inspector General, said that the integration of the INS 
biometric fingerprint ID system and the FBI's fingerprint IAFIS 
system, quote, ``remains years away.''
    In August of last year, the Inspector General concluded 
that the INS had failed to meet a mandate created by Congress 
in 1996 to have an automated entry and exit control system. Six 
years and it hasn't happened.
    When you think about the reorganization into a homeland 
security agency, it really calls into question our commitment 
to establishing modern technology in all of these agencies.
    Back in 1939, scientists in America discovered nuclear 
fission. President Franklin Roosevelt created something called 
the Uranium Committee to decide whether or not that had a 
military application. It went nowhere, and then came Pearl 
Harbor, and in 1942 he appointed General Leslie Groves to be 
head of the Manhattan Project and gave him power, and $2 
billion, I might add--$20 billion by today's standards--to 
pursue the Manhattan Project.
    I think as we take a look at reorganization and moving 
boxes on charts, we ought to be asking some basic and 
fundamental questions about information technology and how it 
will be used by the FBI, by the INS, by the CIA and the NSA, 
all of these agencies. That should be an important part of this 
conversation.
    The Justice Department said 3 weeks ago we are going to 
fingerprint and photograph millions of visa applicants coming 
into the United States. When? How? They certainly don't have 
the capability today to even consider that possibility. I think 
that has to be part of our consideration, too.
    I am a cosponsor of Senator Kennedy's bill, and I will just 
close by adding one other footnote. I think history tells us 
that the biggest problems faced by those who want to emigrate 
to the United States come at times when the United States is 
facing an economic downturn or questions of security. We are 
facing both today, and I hope that the conversation about 
immigration, which is so critical in our past and to our 
future, is taken in a context that really is positive rather 
than negative.
    Thank you, Mr. Chairman.
    Chairman Kennedy. Thank you very much.
    Kathleen Walker testified before this committee earlier 
this year and it is a privilege to welcome her back. She is an 
attorney in El Paso, Texas, where she specializes in 
immigration, customs, and international transactions. She is a 
past president of the American Immigration Lawyers Association 
and has served on the National Board of Governors of the 
organization. She has also served as a board member of the 
Board of Trade Alliance and on the Texas Board on 
Infrastructure Coalition.
    She was appointed to the State of Texas Comptroller of 
Public Accountants' Border Advisory Committee by the 
Comptroller. She is currently involved with the Immigration 
Subcommittee of the U.S. Chamber of Commerce. We want to 
welcome her back and thank her very much for being here.
    Bill Ong Hing is a Professor of Law and Asian American 
Studies at the University of California at Davis. He is a 
member of the National Asian Pacific American Legal 
Consortium's National Advisory Council, and volunteers as 
general counsel of the Immigrant Legal Resource Center in San 
Francisco, which he founded.
    He was appointed to the Justice Department's National 
Advisory Council by then-Attorney General Janet Reno to advise 
the Attorney General with regard to immigration, 
naturalization, and Border Patrol training and misconduct. He 
is the author of several books on immigration and has 
represented immigrants before the INS for 30 years.
    You are very welcome here, Professor.
    David Martin is an expert on refugee, asylum, and 
immigration issues. He joined the faculty of the University of 
Virginia Law School in 1980, where he has taught citizenship, 
immigration and refugee law, and international human rights. He 
previously served as a special assistant to the Assistant 
Secretary of State for Human Rights and Humanitarian Affairs, 
and as General Counsel of the INS. He is currently Chair of the 
German Marshall Fund Project on Dual Nationality and of a 
working group on the same subject for the Carnegie Endowment 
Citizenship Project.
    We are thankful for your presence here, Professor.
    Dana Marks Keener has been an immigration judge at the U.S. 
Department of Justice's Executive Office for Immigration Review 
since 1987. She has served as a temporary board member of the 
Board of Immigration Appeals and is co-editor of the 
Immigration Judges Bench Book. She is President of the National 
Association of Immigration Judges and a member of the 
International Association of Refugee Law Judges. Before joining 
the bench, she was a partner in the immigration law firm of 
Simons and Unger.
    Each of our witnesses has very significant experience in 
the field of immigration law and policy. We are grateful to 
them for being will to share that information with us here 
today and thank them for coming.
    We will start with you, Ms. Walker.

  STATEMENT OF KATHLEEN CAMPBELL WALKER, AMERICAN IMMIGRATION 
              LAWYERS ASSOCIATION, EL PASO, TEXAS

    Ms. Walker. Chairman Kennedy and distinguished members of 
the committee, thank you so much for the opportunity to come 
back and provide this testimony on behalf of the American 
Immigration Lawyers Association. It was founded in 1946 and is 
comprised of about 8,000 attorneys and professors dealing with 
immigration issues here in the United States. We truly 
appreciate the opportunity to participate in the process with 
you.
    Secondarily, it is an honor and a privilege to be able to 
discuss this critical development regarding the Office of 
Homeland Security and its impact on immigration issues. 
Certainly, we are very concerned that we work with you in the 
process, and we enjoyed that opportunity on the border security 
bill and will try to do so again here, but we have numerous 
concerns.
    From my perspective, being on the border for about 16 years 
and looking across everyday when I go into work to Mexico, I 
know that we have talked about border issues in the past, and 
border security and integration of agency activity. Whether it 
be moving boxes or not, the fundamental issues of management, 
of structure, of staffing, of supervision, of funding--if those 
are not, as you have already all noted earlier, dealt with, 
whether we move it into the Office of Homeland Security or 
somewhere else, it will not be a success. And we would hope 
that we would be able to assist in making this a success.
    Certainly, we believe it is an opportunity, as you, Senator 
Brownback, mentioned earlier--and Senator Kennedy, your bill, 
2444, and Senator Durbin, you as well--with this option, if we 
can manage to get it reorganized and restructured to actually 
perhaps be non-dysfunctional, then we believe that if it goes 
into the Office of Homeland Security, we at least have a better 
shot at being effective.
    Isn't the bottom line here that we are trying to deal with 
national security? How do we manage to be most effective to 
achieve that goal? With a dysfunctional agency dropped into 
another large organization, we have strong concerns.
    In addition to that, think of the opportunity to also 
dovetail this into the ability to make legal immigration the 
norm by addressing labor needs that we have documented that we 
have either through a temporary worker program or not, or some 
other alternative.
    In addition to that, what if we also look at the fact of 
dealing with people who are already here, hard-working people 
who desire to be legal, pull them out from the underground and 
make them participants in our society--we already know we need 
them--and give them a status? We believe that is an important 
part of this.
    Don't forget, we have Mexico down there that needs us to go 
ahead and give them an avenue to assist us in achieving our 
goals. If we want a North American perimeter security zone, we 
need to be working with our trade partners to achieve it as a 
part of this, indeed make it an improvement of homeland 
security and also a part of North American security.
    As far as what happens to immigration in the Office of 
Homeland Security, what we are hoping you would consider is 
perhaps a fifth prong, as Senator Brownback mentioned. We have 
been struggling that we should not use the ``fifth column'' 
reference. We would suggest a fifth prong or division in which 
one would place immigration services and security, and leave 
transportation on the other side of the blocks; in other words, 
divert the two.
    Now, as to whether or not the Coast Guard and the Customs 
Service and APHIS also come into play within immigration 
services, it will be a matter of debate. I recognize that in 
the inspections context, you have those agencies working 
together, but until immigration is fully functional, perhaps a 
transitional phase is better to consider than dumping them all 
into one big block at this point in time.
    I just know that the Homeland Security Office can serve a 
pivotal function in review and coordination that we have not 
had before in other attempts through the border coordination 
initiative or through unified port management. But it will be 
very difficult to coordinate all those bodies effectively, and 
we don't need to be uncoordinated at a time of heightened 
national security concerns.
    We are also hopeful that we will have basically a border 
security division within this new prong, as well as immigration 
services and interior security. The predominant concern I have 
on just focusing on border security alone and dumping in 
inspections with the Border Patrol--inspections is that point 
where it is enforcement and adjudications tied together.
    If I am just sitting there at primary inspections, really 
you can deal more with the data base check and leave secondary 
from a benefits perspective. So that is a consideration. 
Immigration services--of course, adjudications would fill in 
that area, as well as secondary inspections. Finally, interior 
security would be investigations, detention, and removal.
    We also encourage you to consider the creation of a 
separate office under the Homeland Security Secretary of a 
civil rights division. We need to make sure that the public 
understands we still care and value treating people fairly. The 
tendency in an enforcement agency to not be as sensitive to 
ethnicity is high, and so we would hope that you would be able 
to consider that option.
    In addition, as you stated earlier, as to the Executive 
Office for Immigration Review, who wants a boss who is dealing 
with both the prosecutor and the judge? It doesn't really allow 
for an effective review process. We support either an 
independent agency or an Article I court.
    As for visa processing, Senator Feinstein, I respect your 
opinion greatly. I served as National Chairman of the 
Department of State Liaison Committee for AILA for 3 years and 
have been in that area of consular work for 16 years. Foreign 
policy and visa services, consular affairs, are hand-in-hand. 
The Secretary of State, through Consular Affairs, actually has 
been commended for their management.
    As to national security not being an issue, I feel that the 
security advisory opinion process that they have had in place 
for years shows that they are very concerned. But if you don't 
have the name in the computer, how are they going to find you, 
and what can I ask you to know that you are going to become a 
terrorist, to be able to discern that just in a personal 
interview?
    I want them to have the capacity to do that through added 
technology, added assistance, but I know that if I am trying to 
get certain trade negotiations dealt with or I want to protect 
U.S. citizens abroad or I need a deal from a particular country 
I am working with, I may coordinate that with my visa policy. 
Those are foreign policy issues.
    We need to let them do their work, but at the same time 
allow the Office of Homeland Security to work with the 
Secretary of State in order to achieve those goals.
    So that really sums up the discussion I have and I 
appreciate your patience. Basically, it is that let's go ahead 
and get it reorganized, use Senate bill 2444 for its purpose, 
don't lose the opportunity to make legality the norm on a 
going-forward basis, deal with our labor needs and facilitate 
it legally so we won't have this magnet, and finally go ahead 
and discuss the alternatives in-depth about the actual utility 
of moving these people from one category to another.
    Thank you very much.
    [The prepared statement of Ms. Walker appears as a 
submission for the record.]
    Chairman Kennedy. Thank you very much.
    Professor Hing?

     STATEMENT OF BILL ONG HING, PROFESSOR, UNIVERSITY OF 
 CALIFORNIA-DAVIS SCHOOL OF LAW AND ASIAN AMERICAN STUDIES, ON 
BEHALF OF THE NATIONAL ASIAN PACIFIC AMERICAN LEGAL CONSORTIUM, 
                   SAN FRANCISCO, CALIFORNIA

    Mr. Hing. Thank you. On behalf of the National Asian 
Pacific American Legal Consortium, I would like to thank 
Chairman Kennedy and Ranking Minority Member Senator Brownback 
for inviting us here to testify.
    Almost two-thirds of the Asian American population are 
immigrants, and approximately one-third of the immigrants who 
come to the United States each year are from Asia, mainly to 
join other family members already here. As a result, the 
ability of the INS to function fairly, efficiently, and 
effectively has a significant effect on our community.
    While having the Department of Homeland Security take over 
INS functions may seem attractive to some, the question that 
has to be answered is whether it makes sense. Implicit in this 
inquiry is a principle recognized by Congress in the Enhanced 
Border Security and Visa Entry Reform Act. Our most effective 
security strategy is to improve pre-screening of immigrants so 
as to keep out those who mean to do us harm, while admitting 
those who come to build America and make our Nation stronger.
    The vast majority of immigrants and non-immigrants are 
simply not relevant to the issue of national security, and to 
make them so would pose an unnecessary distraction and a drain 
on resources of the new Homeland Security Department.
    Long before September 11, INS miscues provided legitimate 
fodder for criticism and calls for reform, and even dismantling 
of the agency. But the need to reform INS and the need to 
provide better national security should not be confused. The 
temptation to conflate the two issues is enticing. They are 
related, but they are separate issues.
    A successful reorganization of INS within an environment of 
an even more massive Government restructuring is highly 
unlikely. Moving INS may very well make it even more 
dysfunctional. Not only are family reunification and visa 
employment issues important for relatives and businesses, but 
immigration is vital to many parts of the United States.
    As population declines in regions of the country such as 
Iowa, Pittsburgh, Philadelphia, Louisville and Baltimore, 
leaders in those areas recognize the need to attract more 
immigrants. They are looking to Washington for assistance in 
facilitating the entry of workers and families to their 
regions, knowing that immigrants can help to revitalize and 
sustain their communities.
    The Department of Homeland Security simply cannot subsume 
every function of our national Government that encompasses a 
national security concern, but it can develop the expertise and 
focus to collect, process, and share anti-terrorism information 
with the entities responsible for administering the broad 
policy areas that cannot be effectively administered by one 
gargantuan agency.
    But should Congress deem it necessary to at least transfer 
some border enforcement functions to the new department, 
immigration and naturalization services should nevertheless 
remain within the Department of Justice and the State 
Department.
    Services such as naturalization, green card processing, 
refugee and asylum processing, and employment-based visas need 
to be an in agency better able to foster a professional service 
mission and attract employees who have the skills and 
temperament suited for providing services to families, 
individuals, and businesses.
    While service and enforcement functions of the INS clearly 
have areas of overlap, scrutiny of exclusion grounds does not 
have to be sacrificed in the development of a separate visa and 
naturalization service entity. Given cutting-edge technology 
that has been available for years from Silicon Valley-type 
companies but never implemented at the INS, issues of data 
storage, confidentiality, high-volume traffic, interagency 
communication, access, and security are quite possible.
    In conclusion, let's be clear. As currently proposed, the 
homeland security initiative goes too far. By subsuming many 
functions from over 20 agencies that have little to do with 
national security, we have to wonder. Service functions in the 
current INS are already marginalized by a pervasive enforcement 
culture, and it is a pipe dream to think that if INS is moved 
in its entirety to the Homeland Security Department, a 
reorganization plan can fully protect service functions.
    As an advisor to then-INS Commissioner Meissner, I 
witnessed constant frustration over attempts to professionalize 
many positions in the agency through better training, only to 
be derailed by a culture in the field that reinforced the old 
approach.
    The problem of the Immigration and Naturalization Service 
as a second-class function in a new homeland security 
department will only get worse. Let's not sweep away 
rationality in our attempt to search for enemies.
    Thanks.
    [The prepared statement of Mr. Hing appears as a submission 
for the record.]
    Chairman Kennedy. Professor Martin?

 STATEMENT OF DAVID A. MARTIN, PROFESSOR OF LAW, UNIVERSITY OF 
       VIRGINIA SCHOOL OF LAW, CHARLOTTESVILLE, VIRGINIA

    Mr. Martin. Mr. Chairman, Senator Brownback, Senator 
Feinstein, I really appreciate the invitation to appear before 
you today.
    As you know, we have been debating INS reorganization for 
well over 5 years. There were solid plans, pretty detailed 
plans in place in 1997 when I left office as INS General 
Counsel. I really expected we would be in a stage of 
implementing them within the Department of Justice by now.
    Nonetheless, we now have a new context and, of course, a 
new urgency for considering reorganization questions--the 
President's proposal for a Homeland Security Department. I 
offer in my testimony, my prepared statement, three main points 
to keep in mind in considering how the immigration function 
should be dealt with in this new context.
    First of all, immigration is about more than just 
enforcement and dangers. Although I hope that we will take from 
the September 11 events a determination to provide more 
resolute and consistent immigration enforcement, not only with 
regard to terrorists and criminals but more generally in 
effective enforcement of even more routine parts of the 
immigration laws, it is still very important that we not over-
learn that lesson.
    Perhaps the greatest risk of moving the immigration 
function to the Homeland Security Department is that we will 
lose sight of the positive side of immigration. I am 
particularly concerned about functions such as refugee 
resettlement which, as you know, Mr. Chairman, has suffered 
greatly and has been slowed down perhaps more than any other 
part of immigration admissions. This impact on refugee 
admissions is of particular concern to me.
    The second point is that we should keep immigration 
services and enforcement closely linked. There has been wide 
agreement on some operational shift in all the reorganization 
plans I have seen to separate enforcement and services units in 
whatever new immigration agency is created, and that would 
enable some field office realignment that could carry a lot of 
benefits. I support that approach.
    But throughout the spring, we saw a growing recognition--
and it is certainly reflected in the Kennedy-Brownback bill--of 
the importance of maintaining tight coordination and linkages 
between those units. I think that your bill provided a much 
better structure than the House bill for making sure that this 
new system would function in a way that recognizes those 
linkages.
    After the Homeland Security Department proposal was 
offered, many of those who worry about a deemphasis of services 
have revived the talk about a more rigid split, and you have 
seen some of that in the statements here today. I believe that 
would be a mistake. I do not think we should leave the services 
component back in the Justice Department or put it in some 
other location.
    Although I certainly understand the impulse and the 
reasoning behind that, and I share that concern greatly about a 
deemphasis of services, leaving services in a different 
department would have the opposite effect from what is 
intended. I think it would result in a loss of clout, of 
effectiveness for that particular component, for the services 
component. It would be a small unit in the department, a kind 
of vestigial unit.
    I think there are better ways to do that, to deal with that 
concern within the structure of the Homeland Security 
Department itself, although it is a close question. It is 
certainly an arguable call. The impulse is right. I think we 
have to be very careful about what the impact would be.
    Immigration management, in my view, should be seen as a 
unified whole. It involves services, the positive side of 
immigration. It involves enforcement, and it really needs to be 
thought of as an immigration management function overall. The 
pieces should be kept together.
    The third point is that immigration deserves ongoing, high-
level attention. It has been getting that for the last decade 
or so in the Justice Department. It is a bit unfortunate from 
that point of view that it is now proposed to be moved to 
another department.
    I outline a recommendation in my statement about how to 
best observe these principles--to provide for improved 
enforcement and coordination with homeland security efforts, 
while still recognizing the positive side of immigration, the 
services and humanitarian component. That goes along very much 
with one of the themes in Senator Kennedy's opening statement; 
that is, to create a fifth division within the Homeland 
Security Department, to split the immigration function out away 
from border and transportation security and give it its own 
undersecretary.
    Managing the movement of human beings is sufficiently 
distinct and important from the other tasks of that department 
to justify that kind of a change. I believe we would still 
retain most of the benefits of coordination with other units, 
with other protection functions that are sought to be obtained 
by creating a Homeland Security Department, because those units 
would also be within the same department.
    But creating an undersecretary who focuses only on 
immigration would afford a great many benefits. That 
undersecretary will keep in mind the full richness of our 
immigration tradition, and I think by the very nature of the 
task, if that person is able to focus in that way, he or she 
will give priority to services. Then internally that unit can 
be structured in a way that would be very similar to the 
Kennedy-Brownback bill. It is quite important to use this 
occasion not just to move INS as it is, but to restructure.
    Let me just mention briefly two further structural 
suggestions that I offer in the testimony. I think probably the 
visa function should be moved to this new department, although 
I don't fully understand exactly what is intended in the 
President's proposal and I would certainly like to look at what 
other options might be on that.
    Finally, I think that the Executive Office for Immigration 
Review should probably go to the Homeland Security Department, 
although that is also a close question, and it would report to 
the undersecretary.
    Some are pushing for EOIR to become an independent 
commission. I fully support the notion of the independence of 
the immigration judges and the Board of Immigration Appeals in 
making their own individual decisions. It is important to 
safeguard that. We can make some changes to further that end, 
but I do think that EOIR needs to be linked to the rest of the 
immigration function for managerial and logistical purposes.
    Sometimes, we need to deploy immigration judges on a 
priority basis, for example, to respond to a sudden influx, and 
quick action can keep a minor situation from turning into a 
major crisis. For these kinds of managerial and logistical 
purposes, it is important to keep those units together, and I 
offer some further development in the testimony about how I 
think that can be done. I also deal there with some further 
questions such as the referral authority that now exists with 
the Attorney General.
    Thank you very much.
    [The prepared statement of Mr. Martin appears as a 
submission for the record.]
    Chairman Kennedy. Thank you very much.
    Judge Keener?

STATEMENT OF DANA MARKS KEENER, PRESIDENT, NATIONAL ASSOCIATION 
        OF IMMIGRATION JUDGES, SAN FRANCISCO, CALIFORNIA

    Judge Keener. Mr. Chairman, members of the subcommittee, I 
thank you for the opportunity to testify.
    First, I would like to convey the regrets of former 
Congressman Bill McCollum, who was unable to appear today, and 
place his testimony in the record. I am especially pleased to 
be able to do that because I agree with it. I would have done 
it in any event.
    [The prepared statement of Mr. McCollum appears as a 
submission for the record.]
    Judge Keener. I am appearing on behalf of the National 
Association of Immigration Judges to provide you with our 
perspective of where the immigration courts should be located 
during these reorganization efforts.
    I am the President of the Association, which is the 
certified representative of the approximately 228 immigration 
judges nationwide. In that capacity, the opinions I offer are 
the consensus of the members and they may or may not coincide 
with any official position taken by the Department of Justice.
    In January of this year, the Association published a 
position paper advocating increased independence for the 
immigration courts. We are submitting that paper as part of 
today's written testimony for your full consideration. Now, I 
would like to highlight the major premise of that paper and 
bring our views current with the context of the Homeland 
Security Department and reorganization.
    Our paper recommended the adoption of the 1997 proposal 
from the U.S. Commission on Immigration Reform that EOIR be 
located in an independent executive branch agency. This 
proposal is an exhaustively researched bipartisan plan which 
was the culmination of years of study involving all of the 
parties involved in immigration adjudications.
    Creating an independent agency would satisfy our paramount 
concern of protecting America's most fundamental legal value--
due process. This solution would strike an appropriate balance 
of powers in this extremely sensitive area. In addition, we 
believe independence could provide much needed oversight on 
various immigration-related functions and become a vehicle for 
increasing efficiency.
    EOIR was created in 1983. Yet, the historical reasons for 
the separation of these functions from INS are even more 
compelling today. The immigration courts decide more than 
260,000 matters annually. Thus, administrative efficiency is a 
practical necessity. However, the need for public confidence in 
the impartiality of the system is equally great.
    When reduced to its simplest form, as witness Walker 
testified, any structure, be it the Department of Justice or 
Homeland Security, where the boss of the prosecutor is also the 
boss of the judge, is problematic. One does not need exotic 
legal training to find this a disturbing concept which creates, 
at the very minimum, the appearance of partiality.
    Perhaps the most blatant example of the susceptibility to 
improper influence which is inherent in the current structure 
relates to contempt authority. In 1996, Congress mandated 
contempt authority for immigration judges, but left the actual 
implementation to the Attorney General, who was required to 
promulgate regulations.
    Over 6 years later, there are no regulations. Rather, it is 
opening acknowledged that this recalcitrance is due primarily 
to the objection of the INS, who doesn't want its attorney 
staff subjected to contempt provisions which are levied by 
other Department of Justice employees--the immigration judges.
    The promulgation of contempt authority would provide the 
immigration court with an important tool to enforce INS 
compliance with its orders and would serve to assure that 
alleged terrorists obey orders closing immigration proceedings 
for national security reasons.
    The Attorney General has issued new regulations for 
protective orders quite recently, but the current sanction of 
mandatory denial of discretionary relief is toothless, since 
these applicants are already statutorily barred from virtually 
all forms of relief. The prompt issuance of regulatory 
authority for contempt power could resolve this problem.
    The separation of the immigration court from the agency 
which houses the INS will also aid Congress and the American 
people by providing an independent source of statistical 
information to assist in determining whether the INS mandate is 
being carried out in a fair, impartial, and efficient manner. 
It can provide much needed oversight on various immigration-
related functions and become a vehicle for enhancing 
productivity.
    Pursuant to DOJ policy, last year EOIR's director 
established case completion goals which set target times for 
the adjudication of various types of cases. Yet, many judges 
view the INS as an impediment rather than a facilitator to 
timely case completions.
    For example, inordinate delays in INS processing times for 
visa petitions, INS forensic evaluations, overseas 
investigations, and the lack of prompt followup on FBI criminal 
record hits, are routine causes for the INS to request lengthy 
delays in proceedings. It is not uncommon for the INS to take a 
year or more to resolve such collateral issues. The lack of 
contempt powers hinders the ability of judges to require 
parties to meet timely deadlines to resolve these issues and to 
notify the court in advance so that we can safeguard precious 
docket time.
    Frankly, neither the Select Commission nor the Association 
anticipated that any reorganization would culminate in the 
departure of the INS from the Department of Justice. Now, that 
seems to be the approach favored, at least by the White House 
and by Commissioner Ziglar.
    But the Association would like to make its position 
perfectly clear. In the absence of an independent agency 
status, as recommended by the Commission, which remains our 
first choice, we believe that EOIR should remain at the 
Department of Justice.
    If the INS is transferred to the newly created Department 
of Homeland Security, then an alternative where the immigration 
courts and EOIR structure remain in the Department of Justice 
could serve as an acceptable stop-gap solution. Such a move 
would ensure some measure of judicial independence and would 
spare the expense of creating an independent agency.
    The Association has provided proposed language as an 
appendix to our written submission which would clarify the 
independent nature of the immigration judge decisions wherever 
the immigration courts are structurally situated.
    The optimal balance of efficiency, accountability, and 
impartiality would be achieved by adopting the Commission 
proposal of an independent executive branch agency. At a very 
minimum, this rationale, when modified to meet the current 
homeland security reorganization plan, would require 
maintenance of EOIR as an agency within the Department of 
Justice.
    Establishment of an independent immigration court would 
achieve meaningful reform in the current structure with a 
minimum of disruption and expense. It would restore public 
confidence and safeguard due process, providing insulation from 
any political agenda. We strongly urge you to adopt this 
approach.
    Thank you.
    [The prepared statement of Judge Keener appears as a 
submission for the record.]
    Chairman Kennedy. Thank you very much.
    Let's do 10-minute rounds.
    Part of the dilemma that many of us have in terms of where 
these enforcement and service functions ought to go concerns 
the present situation in the Justice Department. Over the 
recent years we have seen a tripling of the resources for the 
enforcement side, while the services side receives less support 
and remains more dependent on fees. So even now services are 
the step-child.
    If the service function goes to Homeland Security, what is 
going to happen to those people who are looking for asylum? Are 
the Immigration officials going to be looking at asylum seekers 
through the lens of someone who is going to be primarily 
concerned with terrorism or looking at them through the real 
definition of asylum?
    I ask you to help us think through this dilemma, Professor 
Martin, as well as the others on the panel as we grapple with 
this issue. We were faced the other day with a decision by the 
Department to fingerprint immigrants that were coming from 
certain countries. Then we had the announcement of job fairs 
for people from the same countries.
    So here we are examining people with visas who come in. We 
are making the decision that they can come in. We are 
fingerprinting them uniquely because they come from certain 
countries, and then we are trying to recruit them in the 
afternoon at job fairs to help us out. Talk about sending mixed 
messages.
    How are we going to try and avoid this situation? Can we do 
it? You are the people who have studied and watched this issue 
over the period of time, and have monitored trends, seen when 
solutions have been working, perhaps, and when they haven't.
    We were looking at reorganization with Professor Martin 
about 5 years ago at the time of the Jordan Commission and 
since then we have seen changes. How can you help us get the 
solution right this time?
    Mr. Martin. Well, if I could start with that one, to some 
extent unfortunately mixed messages are going to be inevitably 
part of this business because we do have mixed feelings as a 
society about immigration. We value it, but we fear it. At 
different times, depending on the economy, depending on 
perceived national security threats, we will take a different 
view.
    I think it is possible to structure it, though, so that we 
can even out some of those differences. But a lot of it will 
depend, of course, on the individual who happens to be in 
charge. That is part of why I favor placing the immigration 
function, assuming it goes to Homeland Security, at the level 
of undersecretary and give it that kind of prominence, someone 
who will inevitably have to deal day by day with the services 
side, the humanitarian side, as well as the enforcement side.
    Beyond that, on the services side, you are quite right. 
Part of the problem comes from the way services are funded 
through fees. The problem that we had sometimes when I was at 
INS was that it took a long time to do a study of fees, to 
justify it, to face down perhaps some possible litigation, and 
to justify the exact level at which the fees were set. By the 
time you get through that whole process, it could be obsolete; 
it is not completely funding what is needed.
    So I think we are probably looking at a situation where I 
think a minor change in that funding formula could allow for us 
to get out in front of that or allow for a constant cost of 
living increase.
    The main issue is how to structure the new department in a 
way that we don't focus only on the negative side, the fear 
side, the enforcement side. Among the options available to us 
right now--none is perfect, but I think the odds are best with 
an undersecretary for immigration affairs in Homeland Security.
    Chairman Kennedy. Let's get into that issue later on. We 
hope you will give us your ideas on the fees and how to correct 
that problem then.
    Professor Hing and Ms. Walker, if you could comment on 
that.
    Mr. Hing. Mr. Chairman, thank you. Let's not underestimate 
what is available technologically today. The Immigration 
Service has--this may come as a surprise for me to say this, 
but has some very good people, some very well-meaning people 
that do not have the resources available that they need.
    A couple of years ago, I was actually retained by a Silicon 
Valley startup to negotiate with the Immigration Service over 
electronic filing possibilities of applications, and the 
Immigration Service was completely and totally blown away by 
what is available, what has been available, and what is not 
available to them.
    The reason I point that out is because I actually think 
that the type of technology that we need to provide the kind of 
screening that we all want of every non-immigrant and immigrant 
who enters the United States can be implemented. And if that is 
so, I do not believe that you need to have a Department of 
Homeland Security to implement that kind of screening.
    You do need their input on how to feed that information in 
or where to gather it and that type of stuff, but it can be 
readily available on an electronic look-out apparatus, and then 
we can all be happy. We can screen everyone, and the businesses 
that want to recruit these individuals do not have to be slowed 
up and those parts of the country that want to recruit 
immigrants can go ahead with the recruitment and those others 
that are having backlashes can take slower paces.
    I just don't think that we should be afraid of going 
forward with security issues at a cost of legal immigration. 
They can be done simultaneously.
    Chairman Kennedy. Well, I couldn't agree with you more. We 
tried to do it but the CIA would never be willing to share that 
information with the INS. We tried to remedy that situation 
with our Border Security Act, focusing on a whole range of 
technology and redundancy within those systems, including using 
biometric devices and collecting information into the INS of 
passenger lists at ports of entry.
    We have a very elaborate system, but we have to look at it 
more broadly.
    If we are looking at immigration as enforcement and also 
services, it is enormously important, for the reasons all of 
you have testified, to see that the piece of this arrangement 
that gets short shrift is the services and the protection of 
people, whether unaccompanied children or asylum seekers or 
others.
    Ms. Walker?
    Ms. Walker. Thank you, Chairman Kennedy. Just briefly to 
reiterate what Professor Martin indicated, having somebody up 
at the top with strength, showing the importance of the 
immigration issue itself, is important.
    In addition to that, I think we are forgetting, again, the 
two sides of the coin, adjudications and enforcement. The two 
complement one another. I want better adjudications, providing 
a security element, as well. The problem is implementation.
    I am sure that you all have read about the IBIS checks that 
were being conducted on the filing of petitions, and in New 
York they were turning away applicants. It turns out that INS 
didn't realize they didn't have people onsite trained in the 
ability to run those checks, nor did they have the facility to 
do it necessarily, and they had to send in basically a SWAT 
team to get it up and running. That is just regarding those 
checks.
    And something even more simplistic: let's talk about being 
able to take money and facilitate travel. Have you ever waited 
2 hours for the clerk to get back from lunch to pay your $6 to 
be able to have somebody enter the United States? It is that 
fundamental an issue.
    If we are talking about technology, I spent 2 days at the 
General Accounting Office study about biometrics, and then they 
came down to El Paso last week to listen to how biometrics 
might work or not work on the border. We don't have the 
capacity yet to be able to effectively scan our laser visas.
    So great goals, but we have got to be able to figure out 
how we are really going to implement them and how we are really 
going to improve security overall. That is the task.
    Chairman Kennedy. I just have a few seconds left. Judge 
Keener, just speaking for yourself, what proposal do you think 
would be best, creating an independent court system or keeping 
the immigration court system at Justice?
    Judge Keener. Our top choice is the Commission's 
recommendation because of the fact that we believe that was a 
study that was very thorough and done in cooler times when 
there were less emotional concerns. We believe that an 
independent agency is justified because of the stature of the 
kinds of cases we have to hear. They are death penalty cases. 
If an immigration judge makes a wrong call on somebody's asylum 
application, we have sentenced that person potentially to 
death.
    We think it is appropriate to remain as an administrative 
agency so that the proper checks and balances are there, but we 
think an independent agency is the best choice.
    Chairman Kennedy. Senator Brownback?
    Senator Brownback. Thank you, Mr. Chairman.
    I want to thank all the panelists for their very clear 
testimony. It was excellent and very clear. I want to get some 
summary thoughts, if I can, to make sure I get it all clear 
from you.
    Professor Martin, both you and Ms. Walker support the move 
to the Homeland Security Agency of the INS service, in total, 
but the creation of a fifth branch within Homeland Security. I 
want to make sure I am correct with that with your testimony.
    Mr. Martin. If I could just clarify, my preference really 
would be for the function to remain at the Justice Department, 
but I think that is unrealistic in the present climate, and I 
do think it is important to keep the function together. So if 
pieces are moving to Homeland Security, which I think is 
inevitable, it is better to have the entire function there in a 
fifth unit.
    Senator Brownback. So let's pursue that line, if I could, 
for just a second. I think if people envision a Homeland 
Security Agency, they certainly see border security as being a 
part of that. You think it would be a worse situation to 
separate out border security and the services than to move 
border security, say, to the Homeland Security Agency but not 
move the services, leaving the services at the Justice 
Department. Is that correct?
    Mr. Martin. Yes, that is my judgment. I think it is most 
important to keep it together because it is really not two 
separate functions, services and enforcement. They are closely 
linked, as Ms. Walker said. It is an overall picture of 
immigration management and it works best if it is done 
together. I think we can best serve all the values that are 
talked about by keeping that unified.
    Senator Brownback. This has been a topic you have talked 
about, thought about, and visited with a number of people for a 
long period of time as this topic of reorganization of INS has 
been going around. This isn't something that has just been 
forced upon you to confront as a topic within the last few 
months.
    Mr. Martin. That is right.
    Senator Brownback. Ms. Walker, as a practitioner, you 
believe this should be moved to Homeland Security, but created 
in a fifth division within Homeland Security?
    Ms. Walker. I think I can reiterate what Professor Martin 
is saying that if it is going to be moved, it needs to be moved 
together. A practical example is when we talk about border 
security, the issue of Border Patrol is typically what we think 
about, and then we also include inspections.
    Inspections involves determination of asylum benefits, 
determination of final legal permanent resident status, how 
long you admit people to remain in the United States. A lot of 
our tourism and commerce is tied to facilitation of that entry, 
and how do we dump that into an enforcement context alone? I 
think it is risky business to not recognize the fact that that 
is an adjudication, a benefit issue.
    Senator Brownback. So they need to stay together, the 
benefit and the enforcement functions. I agree that these seem 
to be very closely tied. Again, they are very different 
functions, really, but they do need to be tied together.
    Ms. Walker. And it works on the flip side as well. I have 
an enforcement element in adjudications and in enforcement an 
adjudications element. I want the two to be important and I 
want to facilitate them and try to make them be successful from 
a national security perspective. They are like either side of a 
coin, as we have been discussing earlier.
    Senator Brownback. Neither of you would want the move to 
take place absent a restructuring of the INS, as has been 
discussed in front of this committee before. Is that correct, 
Ms. Walker?
    Ms. Walker. Yes, sir. If we are going to put something 
dysfunctional into something we are trying to make effective, 
it doesn't seem to be the best route.
    Senator Brownback. Professor?
    Mr. Martin. I do think we should use this occasion for 
restructuring, partly because it has been around for so long. 
We should have a pretty good idea of the overall new structure 
and really get people busy implementing it, instead of just 
moving a function, unreformed, to Homeland Security and then 
starting up the debate all over again.
    We are pretty close, I think, between your bill and the 
action the House recently took. The general outlines are pretty 
similar. It is really time to get moving on that, and it would 
do a lot for morale and it would do a lot for enabling us to 
move on to the kinds of micro improvements that I think are 
perhaps more important than reorganization, as Professor Hing 
was talking about, if we can settle the restructuring framework 
and begin the detailed process. It will take several years of 
really putting that in place. That will help the entire 
function enormously.
    Senator Brownback. I want to add here I think we have got a 
lot of very qualified people that work within the INS. I think 
systems matter greatly, and if you put good people in a bad 
system, bad things can and still do happen. That is why systems 
are important, that you get your systems right, and that is why 
I think this is an important topic.
    Professor Hing, you don't think this should be moved at 
all, and I respect your opinion on that and I think I pretty 
well understand the reasons why you are articulating that. 
Without looking at that topic, can you remove yourself from 
that point and ask what is it we should be changing within the 
function if it is moved? Do you move the whole thing or not?
    I recognize I am asking you to give an opinion on something 
you disagree with, but I would like to try to extract that from 
you, if I could.
    Mr. Hing. Actually, I do address that in the written 
testimony. Thanks for the opportunity to respond to what you 
are positing.
    To me, the best way of looking at this is to look at 
specific examples of typical kinds of immigration cases, and I 
am not going to walk you through many of them, but I will give 
you a couple of examples. I encourage your staff to do this, to 
look at typical types of immigration cases.
    How often does a national security or even an enforcement 
issue come up in a typical non-immigrant case, an adjustment of 
status case, a naturalization case, a refugee case? Hardly 
ever.
    Senator Brownback. It is a legitimate point that you make.
    Mr. Hing. What happens is the only sort of security issue 
or enforcement issue that comes up is with respect to whether 
or not the person has a past criminal background, and that is 
done by FBI fingerprint checking and Interpol checking. That, I 
hope, can be improved. It is already not that bad, but it would 
be done even better.
    So that is why, in my view, if you are going to move most 
of INS to the new department, I would not move the service 
function over because they can be disconnected. It is not that 
complicated to disconnect them. I disagree, with respect, with 
the colleagues on both sides of me. They are not that 
connected, they can be separated. Walk through typical 
examples; it is not that hard.
    The truth is that if there is a separate service entity--it 
existed before historically when it was in the Department of 
Labor. You know, we are going way back now and that kind of 
thing, but there was a time when immigration was processed in a 
separate department and everything was fine. In the early 
1900's, many, many more people came in than come in today, and 
it was handled quite fine. I am afraid of the atmosphere that 
is going to take over at the Department of Homeland Security.
    Senator Brownback. I think that is actually the concern of 
both of your colleagues. They think it would be probably better 
if you kept it together. But your opinion would be, if you are 
going to move something, move border security, but not the 
services function. So you would bifurcate, you would separate 
those issues out.
    Mr. Hing. That is right, that is exactly right.
    Senator Brownback. And you say that as a practitioner and 
just a very pragmatic example of----
    Mr. Hing. Exactly. I have been at the border many times. I 
was just there 2 weeks ago on an inspection. I continue to do 
that. I have written in opposition to Operation Gatekeeper, 
quite honestly, and I know what is happening at the border. But 
I know what needs to happen, and it has a lot to do with 
security.
    Senator Brownback. Ms. Walker, you are a practitioner as 
well and you come to a different conclusion on this very point 
as a practitioner. Why do you come to a different conclusion on 
that point?
    Ms. Walker. Reasonable minds can differ, but the reason 
mine differs in this circumstance is I am at the border for 16 
years. That has got to mean something, and we also deal a lot 
with the consulates in Mexico and the coordination of those 
activities.
    I know that right now, even without the emphasis on 
enforcement as much, the inspectors at our ports of entry have 
more of a bend to be enforcement-minded than anything else.
    On a regular basis, I am having to deal with problems 
regarding inspections because inspectors are not following the 
law or inspectors are abusing someone based on their 
nationality or inspectors can't figure out that somebody is a 
U.S. citizen, so they assume to the contrary because we don't 
document our U.S. citizens. I think it is very important that 
you keep the two together to coordinate them, period.
    Senator Brownback. One final quick point, if I could ask 
this, on the visa area there is a dispute here as well about 
where that function should be handled. Some of you support 
leaving it at the State Department and others of you would 
support pulling it out.
    Professor Martin, you must have wrestled with this issue 
when you were in INS. Why do you come down the way you do on 
this?
    Mr. Martin. Well, I think that is a close call and I do not 
think that is an area that had been a major problem. If there 
were not a very large-scale reorganization already on the 
table, I don't think I would be supporting that. I would like 
to look more closely at what the various options are.
    But I am inclined to think that it makes more sense, given 
the large-scale reorganization we are doing and given the need 
for consular officers to be applying the same standards, the 
same understanding of the laws and regulations, as the 
inspectors at the border, that it makes sense to look closely 
at least at putting those two functions together.
    Senator Brownback. I think it is a big issue because you 
look at September 11 and many people look at that and say if we 
had caught this earlier, we wouldn't have had this problem. It 
is a close call.
    I want to thank the panel. I think it was an excellent 
discussion. Judge Keener, I don't have questions for you 
because I understand clearly where you are coming from on the 
issue and you have articulated that here.
    Mr. Chairman, I want to ask unanimous consent to submit 
Senator Hatch's statement for the record, if I could.
    Chairman Kennedy. We will have it printed.
    Senator Feinstein?
    Senator Feinstein. Thanks very much, Mr. Chairman. While I 
have been listening to this, I have also been reading some very 
interesting material and I just wanted to share it with people.
    A few years ago, a study was done by the Center for 
Immigration Studies of 48 individuals, all of whom have either 
been convicted or pled guilty to terrorist attacks in this 
country. Eleven were either convicted or admitted plotting New 
York landmark attacks, two New York subway attacks. Four were 
convicted of the African embassy bombings; 7 of the first World 
Trade Center bombing; 20, including Zacarias Moussaoui, of 9/
11, and Moussaoui has not been convicted, obviously; 3 of the 
Millennium plot; and 1 of the murder of CIA employees.
    It is very interesting what that study found, because it 
covers the immigration area. Now, these are all people that are 
guilty of terrorism or planning terrorism. Twenty-six had no 
prior violation of immigration law. Sixteen of them, or one-
third of the 48 terrorists, were on temporary visas, primarily 
tourist visas. Seventeen of the 48 were lawful permanent 
residents or naturalized U.S. citizens. Twelve, or one-fourth, 
were illegal aliens, and 3 of the 48 had applications for 
asylum pending.
    Now, I say this to really show that this group of 48 
convicted or admitted terrorists sort of spans the immigration 
spectrum. The two terrorists, Sheik Rahman and Ali Mohammed, 
who were terrorists involved in the 1993 World Trade Center 
incident, were on the terrorist watch list, but they still got 
visas. That is one of the reasons I think the visa aspect has 
to go into this new agency for sure.
    The case of Khalid al Midhar, who may have piloted American 
Airlines flight 77 into the Pentagon, shows why information-
sharing must be improved. Most reports indicate that in January 
2001, while he was out of the country, the CIA actually had 
information that al Midhar was involved in the attack on the 
U.S.S. Cole. However, his name was not put on the watch list 
until August of 2001, and that was a month after he already 
reentered the United States.
    Three September 11 terrorists were never interviewed by the 
American consulate. According to my sources, Abdulaziz Alomari, 
Salem al Hamzi, and Khalid al Midhar obtained their visas using 
a system called Visa Express, which is used by the American 
consulate in Saudi Arabia to speed up the visa application 
process. They were never interviewed.
    I think one way of looking at this is to look back at 
people who have violated our system who are actually the guilty 
ones. So far, in the United States, 48 people have either been 
convicted or admitted participating in terrorist plots.
    If you look at the list--and I would like to, if I might, 
Mr. Chairman, put into the record a chart which contains the 
names of each and their immigration status.
    Chairman Kennedy. Without objection, so ordered.
    [The information referred to appears as a submission for 
the record.]
    Senator Feinstein. It really indicates why Governor Ridge 
has moved to involve such disparate and wide areas of INS into 
this new agency. Particularly in the subway attacks and the 
first World Trade Center, they were illegal aliens, but the 
African embassy bombings were naturalized United States 
citizens.
    The New York landmark plots were all permanent residents, 
and the Millennium plot was all illegal aliens. On 9/11, three 
were illegal and the rest on tourist visas, and one on a 
business visa. You have three who were asylum applicants, the 
one on the murder of the CIA employee, the first attack on the 
Trade Center, and in the plot to bomb New York landmarks.
    So in terms of looking back at where the problems are, they 
are clearly spread across the board, and that may well be why 
Governor Ridge chose to go for the whole list, including 
naturalization, which I think most of us would admit is a 
service-oriented portion of INS.
    I was wondering if any of you have any comments on that.
    Please go ahead.
    Ms. Walker. Thank you very much, Senator Feinstein. I can 
certainly understand what that report would be extremely 
disturbing, and what I would like to at least respond to is two 
points.
    One, a personal interview does not change whether or not 
one conducts a check of the data base. There are also mail-in 
procedures at consular posts. Let's face it: a lot of our 
adjudications by the Immigration Service are done without a 
personal interview.
    Senator Feinstein. Except they checked the data base, 
because I asked them in another hearing, and there was no 
information.
    Ms. Walker. When the data base does not contain the 
pertinent information, obviously the data base is going to be 
useless. Depending upon when the check is done, the visa 
application can be made years before I decide to travel to the 
United States. Many visitor visas may have a longevity of 10 
years and I may choose to have my first travel to the United 
States 3 years later.
    My second line of defense at that point in time is the 
Immigration Service, and when I am admitted for entry, as long 
as I am not a visa waiver participant, I have had to go through 
and get that visa in the past. And when I am admitted, I am 
supposed to be going through a check. It is not done a hundred 
percent of the time.
    For that matter, at land ports of entry it is not done a 
hundred percent of the time. I recognize that. We trying to 
improve the check process and the data base access. But I don't 
think it is necessarily tied to the lack of a personal 
interview. I also think that it may be tied to the timing of 
the entry of the individual after visa issuance.
    Senator Feinstein. Thank you.
    Yes, Mr. Martin.
    Mr. Martin. I would like to just offer a couple of thoughts 
on that. First of all, of course, it is extremely valuable to 
look at past experience of the kind that you recite there to 
figure out how to improve our systems in the future.
    The episode with Sheik Rahman got a lot of attention, and 
it was primarily the State Department and I was not involved in 
that, but they made a number of changes in their procedures to 
make surer that information in the system would definitely be 
used at a time of making decisions on visa issuance like that.
    Senator Feinstein. Right.
    Mr. Martin. You mentioned 26, if I have it right, that had 
no prior violations. That indicates an inevitable limitation on 
this screening process. Without prior violations or other kinds 
of intelligence information, the most diligent consular 
officer, and usually even with an interview, is not going to 
discover that kind of problem.
    Just to put it in perspective, I think we have to realize 
that immigration controls are an important part of our defense 
against terrorism, but they are a more limited part. Much more 
important are going to be the efforts to develop the 
intelligence and then make sure we share it, rather than trying 
to multiply occasions in which we interview people.
    The only way to be really sure no threats come from outside 
is completely to close our borders. That obviously is not in 
the cards. We have to make tradeoffs and make risk assessments 
all the time, so some part of the very large volume of traffic 
that comes in will come in without a detailed interview. I 
think we will continue with that, but we can do better in 
applying the information we have and in developing better 
information for the future.
    Senator Feinstein. One of the real problems is in the visa 
waiver program, which I think has about 27 countries in it and 
takes in 23 million visitors a year, they have 100,000 
passports that have been stolen. I have read where at least two 
of the hijackers may well have used a passport that they got 
from the visa waiver program. So everything is kind of up to be 
looked at very carefully.
    I appreciate your comments.
    Chairman Kennedy. Well, I want to thank you all. It has 
been very helpful to hear from you. We have to move along on 
this issue and it is a long process to try and get this right. 
It is going to be challenging, so we are going to be talking to 
you frequently in the upcoming weeks. All of you have a wealth 
of experience and we thank you very much.
    We will adjourn the hearing.
    [Whereupon, at 3:33 p.m., the subcommittee was adjourned.]
    [Submissions for the record follow.]
    [Additional material is being retained in Committee files.]

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