[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
86-931 U.S. GOVERNMENT PRINTING OFFICE
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
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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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