[House Hearing, 108 Congress]
[From the U.S. Government Publishing Office]
DIVERSITY VISA PROGRAM AND ITS SUSCEPTIBILITY TO FRAUD AND ABUSE
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HEARING
BEFORE THE
SUBCOMMITTEE ON IMMIGRATION,
BORDER SECURITY, AND CLAIMS
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTH CONGRESS
SECOND SESSION
__________
APRIL 29, 2004
__________
Serial No. 82
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://www.house.gov/judiciary
______
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COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina HOWARD L. BERMAN, California
LAMAR SMITH, Texas RICK BOUCHER, Virginia
ELTON GALLEGLY, California JERROLD NADLER, New York
BOB GOODLATTE, Virginia ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio MELVIN L. WATT, North Carolina
WILLIAM L. JENKINS, Tennessee ZOE LOFGREN, California
CHRIS CANNON, Utah SHEILA JACKSON LEE, Texas
SPENCER BACHUS, Alabama MAXINE WATERS, California
JOHN N. HOSTETTLER, Indiana MARTIN T. MEEHAN, Massachusetts
MARK GREEN, Wisconsin WILLIAM D. DELAHUNT, Massachusetts
RIC KELLER, Florida ROBERT WEXLER, Florida
MELISSA A. HART, Pennsylvania TAMMY BALDWIN, Wisconsin
JEFF FLAKE, Arizona ANTHONY D. WEINER, New York
MIKE PENCE, Indiana ADAM B. SCHIFF, California
J. RANDY FORBES, Virginia LINDA T. SANCHEZ, California
STEVE KING, Iowa
JOHN R. CARTER, Texas
TOM FEENEY, Florida
MARSHA BLACKBURN, Tennessee
Philip G. Kiko, Chief of Staff-General Counsel
Perry H. Apelbaum, Minority Chief Counsel
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Subcommittee on Immigration, Border Security, and Claims
JOHN N. HOSTETTLER, Indiana, Chairman
JEFF FLAKE, Arizona SHEILA JACKSON LEE, Texas
MARSHA BLACKBURN, Tennessee LINDA T. SANCHEZ, California
LAMAR SMITH, Texas ZOE LOFGREN, California
ELTON GALLEGLY, California HOWARD L. BERMAN, California
CHRIS CANNON, Utah JOHN CONYERS, Jr., Michigan
STEVE KING, Iowa
MELISSA A. HART, Pennsylvania
George Fishman, Chief Counsel
Art Arthur, Full Committee Counsel
Luke Bellocchi, Counsel
Cindy Blackston, Professional Staff
Nolan Rappaport, Minority Counsel
C O N T E N T S
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APRIL 29, 2004
OPENING STATEMENT
Page
The Honorable John N. Hostettler, a Representative in Congress
From the State of Indiana, and Chairman, Subcommittee on
Immigration, Border Security, and Claims....................... 1
The Honorable Howard Berman, a Representative in Congress From
the State of California........................................ 3
The Honorable Steve King, a Representative in Congress From the
State of Iowa.................................................. 3
The Honorable Bob Goodlatte, a Representative in Congress From
the State of Virginia.......................................... 4
The Honorable Sheila Jackson Lee, a Representative in Congress
From the State of Texas, and Ranking Member, Subcommittee on
Immigration, Border Security, and Claims....................... 49
WITNESSES
The Honorable Anne W. Patterson, Deputy Inspector General, United
States Department of State
Oral Testimony................................................. 7
Prepared Statement............................................. 9
Mr. Jan Ting, Professor of Law, Temple University James E.
Beasley School of Law
Oral Testimony................................................. 12
Prepared Statement............................................. 14
Dr. Steven A. Camarota, Ph.D., Director of Research, Center for
Immigration Studies
Oral Testimony................................................. 30
Prepared Statement............................................. 32
Mr. Charles Nyaga, Marietta, GA
Oral Testimony................................................. 34
Prepared Statement............................................. 35
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Temple International and Comparative Law Journal Article
submitted by Mr. Jan Ting...................................... 18
Letters of Support submitted by Mr. Charles Nyaga................ 38
APPENDIX
Material Submitted for the Hearing Record
Prepared statement of the Honorable Elton Gallegly, a
Representative in Congress From the State of California........ 61
Prepared statement of the Honorable Sheila Jackson Lee, a
Representative in Congress From the State of Texas, and Ranking
Member, Subcommittee on Immigration, Border Security, and
Claims......................................................... 61
DIVERSITY VISA PROGRAM AND ITS SUSCEPTIBILITY TO FRAUD AND ABUSE
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THURSDAY, APRIL 29, 2004
House of Representatives,
Subcommittee on Immigration,
Border Security, and Claims,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 10:07 a.m., in
Room 2141, Rayburn House Office Building, Hon. John N.
Hostettler (Chair of the Subcommittee) presiding.
Mr. Hostettler. The Subcommittee will come to order.
Last week it was reported that Pat Tillman, a former safety
for the Arizona Cardinals and an Army Ranger, was killed in
Afghanistan. Before we begin today's hearing, I would like to
pass along my condolences to Specialist Tillman's family and my
gratitude to all of the men and women who are serving our
country and to their families.
I would also like to mention another American hero whose
death has received less notice. On the evening of December
16th, 2003, Border Patrol Agent James P. Epling disappeared
while in foot pursuit of several illegal aliens along the
Colorado River. Agent Epling, assigned to the Yuma Border
Patrol Sector in Yuma, Arizona, was working near Andrade,
California, when he was last seen attempting to apprehend a
group of illegal aliens along the banks of the Colorado River.
Moments prior to his disappearance, Agent Epling, with
complete disregard for his personal safety, entered the swift
cold waters of the Colorado River to rescue a female alien in
distress. Agent Epling reached for the woman and pulled her to
the safety of the riverbank, where another agent waited to
assist.
After transferring the woman to the other agent, Agent
Epling pursued four other individuals he observed running south
toward Mexico, along the riverbank, in an attempt to escape
arrest. That was the last time that Agent Epling was seen
alive. Agent Epling left beind a wife, who was 8 months
pregnant at the time, and three children, as well as his
parents. He was 24 years old. On January 28, 2004, James Paul
Epling, II, was born.
It is important as we work as a Committee, and a
Subcommittee, to remember the brave men and women who labor day
and night, 365 days a year, to enforce our immigration laws.
They keep vigil at our ports of entry, in our cities, and along
our border, ready to defend our country and its people. Some of
them, like Agent Epling, make the ultimate sacrifice for the
United States.
I join Customs and Border Protection Chairman Robert Bonner
in calling Agent Epling, ``One of our Nation's most heroic
guardians.''
And now I turn to our hearing.
Today, the Subcommittee on Immigration, Border Security,
and Claims will examine the Diversity Visa or DV Program. At
this hearing, we will review the history of the program and its
implementation. The DV Program was part of the Immigration Act
of 1990. It was designed to increase diversity in the U.S.
immigrant population by providing nationals of countries that
have had low immigration rates to the United States the
opportunity to apply for immigrant visas. Applicants for the DV
Program participate in a lottery in which the winners are
selected through a computer-generated random drawing.
Qualifying winners are issued visas on a first-come, first-
served basis. Annually, approximately 50,000 aliens enter under
the program.
The program is not without its critics, however. Some
experts have argued that the program is susceptible to fraud
and manipulation. For example, although a DV applicant will be
disqualified if the State Department discovers that more than
one application per year is filed on his or her behalf, critics
have asserted that it is commonplace for aliens to file
multiple applications for the lottery, a fact borne out by news
reports.
In addition, reviewers have asserted that identity fraud,
in the process, is ``endemic,'' and that the case of fraudulent
documents in connection with the visa lottery is
``commonplace.'' This makes sense if aliens are filing multiple
applications under various aliases to improve their chances in
a lottery. If an alien were to be selected under an alias, the
alien must then obtain and use fraudulent documents to support
the visa application. Others have complained that the lottery
has spawned a cottage industry of sponsors who falsely promise
success to applicants in exchange for large sums of money.
In addition to, and in part because of, concerns about
fraud in the DV Program, critics have argued that the program
poses a danger to national security. Specifically, the lack of
restrictions on admissions under the DV Program has been
identified as a vulnerability that could be exploited by
criminals and terrorists. Unlike nonimmigrant visas, there are
no bars to participation in a visa lottery on aliens from
state-sponsors of terrorism. Consequently, 3,380 alien
nationals from state sponsors of terrorism, not counting Iraq,
were selected in the DV 2004 lottery.
Further, unlike other visa categories, aliens who enter the
United States under the DV Program need not have any familial
or business ties to our country. These types of relationships
help ensure that immigrants who enter our country have a stake
in our country's success and have the advanced skills to
contribute to our economy, which some successful DV applicants
lack.
For whatever the reason, aliens who have immigrated under
the DV Program have been tied to terrorism in the recent past.
Hesham Hedayet, who killed two and injured several others in an
attack at Los Angeles Airport on July 4th, 2002, received his
green card under the DV Program. In an asylum application that
he had filed earlier, he had claimed that he had been accused
of being a terrorist, a claim that the former INS never
investigated.
Similarly, a Pakistani national who pleaded guilty in
August 2002 to a single count of conspiracy to use arson or
explosives to destroy electrical power stations in Florida and
two Moroccans, who were indicted as members of an alleged
sleeper cell that same month, also entered the United States
under the DV Program.
In addition, critics have complained that the DV Program
unfairly moves lottery winners ahead of certain family and
employer-sponsored immigrants. This is particularly an issue
for aliens in lower priority categories who have to wait years
for visas.
Further, experts have asserted that the cost of the DV
Program exceed the revenue that the program raises, despite the
fact that Congress, in the 1996 act, authorized the State
Department to collect a fee for the processing of DV visas. In
the nonimmigrant process, applicants pay a processing fee in
advance. Currently, however, only those DV applicants who are
selected in the lottery actually pay a fee.
Finally, critics have questioned whether the DV Program
even accomplishes its goal of enhancing and promoting diversity
among immigrants to the United States. Some have gone so far as
to term these ``antidiversity'' visas, asserting that they are
intended to offset the diversity resulting from
nondiscriminatory immigration. We will explore these issues
with our witnesses today.
Before I begin, I would like to recognize a Member of the
minority for an opening statement, if you have one.
Mr. Berman. No. I recall the whole process and the thinking
that went into the creation of this program back in the 1990
bill, but I take a little bit of issue with some of the points
in the Chairman's opening statement, but I would be curious to
hear more from our experts about the program.
Mr. Hostettler. I thank the gentleman.
The chair recognizes the gentleman from Iowa, Mr. King, for
5 minutes.
Mr. King. Thank you, Mr. Chairman. I appreciate you holding
this hearing today. This is an aspect of immigration that I
have not been involved in a serious investigation of in the
past.
I would just frame this discussion with that any Nation has
to have a solid immigration policy and that all Nations do, and
all Nations have to preserve and protect their borders. And the
goal of an immigration policy is certainly for national
security, but also the policy should reflect the economic, the
social, and the cultural interests of the Nation that
established that policy, and in this case, it is the United
States of America.
And I will be curious, as this testimony unfolds, to hear
how the diversity lottery has enhanced the economic, social or
cultural well-being of the United States and whether it fits in
and is compatible with a number of our other immigration
policies and to continue the discussion of what are our overall
goals, and what do we want this Nation to look like in 10 years
or 25 years or 50 years. Immigration policy directs that, and
every aspect and every component of immigration policy affects
us in a long-term way.
We can deal with any of these in the short term, and we can
adapt, but I would also point out that it has been the policy
of the United States over past years to promote assimilation,
with the idea that we have a greater overall American culture
and civilization that we ask people to buy into and to commit
themselves to this Nation and demonstrate a level of
patriotism, and that we have lost it.
We have lost our goals, and to the extent that we have been
promoting other values, aside from this overall American
culture, and the idea of not supporting assimilation and, in
fact, dividing and working against assimilation and promoting
ideas that are counter to the interests of the United States is
something that I am interested in healing back up again, and so
I will be looking at how we can use the diversity lottery, if
at all, to promote the idea of assimilation.
Thank you, Mr. Chairman. I look forward to the testimony.
Mr. Hostettler. I thank the gentleman.
The chair will now introduce the panel of witnesses that is
before us today.
Anne Patterson--excuse me. In just a moment, I will
introduce the panel of witnesses.
[Pause.]
Mr. Hostettler. We are honored to have our colleague from
the Judiciary Committee, the gentleman from Virginia, Mr.
Goodlatte with us today. I would ask unanimous consent for the
chair to be given an additional 5 minutes during opening
statements, which it will yield to the gentleman from Virginia
for an opening statement that he may wish to present.
Seeing no objections, the gentleman may proceed for 5
minutes.
Mr. Goodlatte. Mr. Chairman, thank you very much for
holding this hearing, and I apologize for my tardiness. I very
much appreciate the opportunity to participate and to offer my
comments on what I think is an important piece of legislation.
Last February, I introduced the Security and Fairness
Enhancement or SAFE for America Act. This important legislation
would eliminate the controversial visa lottery program which
threatens national security, results in the unfair
administration of our Nation's immigration laws and encourages
a cottage industry for fraudulent opportunists. This program
presents a serious national security threat.
Under the program, each successful applicant is chosen at
random and given the status of permanent residence based on
pure luck. A perfect example of the system gone awry is the
case of Hesham Mohamed Ali Hedayet, the Egyptian national who
killed two and wounded three during a shooting spree on Los
Angeles International Airport in July of 2002. He was allowed
to apply for lawful permanent resident status in 1997 because
of his wife's status as a visa lottery winner.
The State Department's Inspector General has even weighed
in on the national security threat posed by the visa lottery
program. In a report issued in September of 2003, the Office of
the Inspector General stated that the visa lottery program
contained significant threats to national security from entry
of hostile intelligence officers, criminals and terrorists in
the United States as permanent residents.
Usually, immigrant visas are issued to foreign nationals
that have existing connections with family members lawfully
residing in the United States or with U.S. employers. These
types of relationships help ensure that immigrants entering our
country have a stake in continuing America's success and have
needed skills to contribute to our Nation's economy. However,
under the visa lottery program, visas are awarded to immigrants
at random without meeting such criteria.
In addition, the visa lottery program is unfair to
immigrants who comply with the United States' immigration laws.
The visa lottery program does not expressly prohibit illegal
aliens from applying to receive visas through the program.
Thus, the program treats foreign nationals that comply with our
laws the same as those that blatantly violate our laws.
In addition, most family-sponsored immigrants currently
face a wait of years to obtain visas. If the lottery program
pushes 50,000 random immigrants with no particular family ties,
job skills or education ahead of these family- and employer-
sponsored immigrants each year, with relatively no wait, this
sends the wrong message to those who wish to enter our great
country and to the international community as a whole.
Furthermore, the visa lottery program is wrought with
fraud. A recent report released by the Center for Immigration
Studies states that it is commonplace for foreign nationals to
apply for the lottery program multiple times using many
different aliases. In addition, the visa lottery program has
spawned a cottage industry featuring sponsors in the U.S. who
false promise success to applicants in exchange for large sums
of money. Ill-informed foreign nationals are willing to pay top
dollar for the guarantee of lawful permanent resident status in
the U.S.
The State Department's Office of the Inspector General
confirms these allegations of widespread fraud in its September
report. Specifically, the report states that the visa lottery
program is subject to widespread abuse and that identity fraud
is endemic, and fraudulent documents are commonplace.
Furthermore, the report also reveals that the State Department
found that 364,000 duplicate applications were detected in DV
2003 alone. The only current penalty for such abuse is
disqualification in that year's lottery.
The visa lottery program represents what is wrong with our
country's immigration system. My legislation would eliminate
the visa lottery program. The removal of this controversial
program will help ensure our Nation's security, make the
administration of our immigration laws more consistent and fair
and help reduce immigration fraud and opportunism. The serious
national security threats, fraud and waste that the visa
lottery program present beg the question why is this program
still in existence?
I applaud you, Mr. Chairman, for holding this hearing to
carefully examine this controversial program, and I look
forward to hearing from today's witnesses.
Mr. Hostettler. I thank the gentleman.
The chair will now introduce the panel.
Anne Patterson is the Deputy Inspector General of the U.S.
Department of State. Just before beginning this assignment, she
served as the U.S. Ambassador to Colombia and, before that, as
our Ambassador to El Salvador. Ambassador Patterson joined the
Foreign Service in 1973 as an economic officer. She has served
as Principal Deputy Assistant Secretary and Deputy Assistant
Secretary of Inter-American Affairs and as office director for
the Andean Countries.
During the course of her career, Ambassador Patterson has
had a variety of political and economic assignments, including
in the Bureau of Inter-American Affairs, the Bureau of
Intelligence and Research, and the Bureau of Economic and
Business Affairs. I also understand that Ambassador Patterson
has been tapped to be the career Deputy U.N. Ambassador and
congratulate her on this appointment. A graduate from Wellesley
College, Ambassador Patterson attended graduate school at the
University of North Carolina.
Jan Ting is a professor of law at Temple University Law
School where he has worked on and off since 1977. Professor
Ting took time off from his academic duties to serve as the
Assistant Commissioner for the Immigration and Naturalization
Service from 1990 until 1993. Before joining the Temple Law
School faculty, Professor Ting was an attorney at the
Philadelphia law firm of Pepper, Hamilton & Sheetz. He
currently teaches courses in immigration and tax law and has
published several articles in both of those areas. He is a
graduate of Oberland College and received an MA degree in Asian
Studies from the University of Hawaii in 1972. He received his
law degree from Harvard Law School in 1975.
Steven Camarota is Director of Research at the Center for
Immigration Studies here in Washington. He has testified
several times before Congress and has published numerous
articles on the impact of immigration in such journals and
papers as Social Science Quarterly, The Washington Post, the
Chicago Tribune and National Review. Dr. Camarota is currently
under contract with the Census Bureau as the lead researcher on
a project examining the quality of foreign-born data in the
American Community Survey. He holds a Ph.D. from the University
of Virginia in public policy analysis and a master's degree in
political science from the University of Pennsylvania.
Charles Nyaga is a native of Kenya. He came to the United
States with his family as a student 8 years ago, and he is
currently a master of divinity student at the
Interdenominational Theological Center in Atlanta, Georgia.
In 1997, he applied for the 1998 Diversity Visa Program,
and his application was selected. In accordance with the
Diversity Visa requirements, Mr. Nyaga and his wife submitted
an application to adjust their status to lawful permanent
resident. Because at the end of the fiscal year the INS had
failed to adjust Mr. Nyaga's status, his application expired.
Mr. Nyaga and his wife took their case to the Eleventh Circuit
Court of Appeals. In a decision issued last year, the Court
found that the INS lacked the authority to act on Mr. Nyaga's
application after the end of the fiscal year. Mr. Nyaga will be
discussing his case with the Subcommittee today.
At this time, members of the panel, without objection, you
will have 5 minutes to offer your opening statements, and your
written statements can be offered into the record.
Ambassador Patterson?
STATEMENT OF THE HONORABLE ANNE W. PATTERSON, DEPUTY INSPECTOR
GENERAL, UNITED STATES DEPARTMENT OF STATE
Ms. Patterson. Thank you, Mr. Chairman, and thank you
Members of the Subcommittee.
I am grateful for the opportunity to testify on the Office
of the Inspector General's work on the Diversity Visa Program.
I will summarize my written statement regarding OIG's report
last fall, our findings and recommendations, and the
Department's progress in responding to them.
As you mentioned, the program authorizes up to 50,000
immigrant visas annually to persons from countries who are
underrepresented among the approximately one million immigrants
to the U.S. each year.
Last fall, the program moved away from its traditional
paper-based application system and was held over the Internet.
This new application system is based at the Kentucky Consular
Center, which I visited last week. The technological advances
appear to be significant.
Newly registered electronic winners are just beginning to
be notified to start the visa application process. As they move
along in the process, facial and name recognition technology
will check each winner against the database of other applicants
to identify duplicate entries. The Department believes, once
the program operates using the full technology available, fraud
will be less likely to occur. Since our previous review took
place prior to electronic registration, we plan to reexamine
the program to determine if some of the vulnerabilities we
identified have been addressed.
In our report, we recommended applicants from states that
sponsor terrorism be barred from the Diversity Visa Program. We
believe this is a serious vulnerability. The Department agrees
with OIG in principle, but expressed concerns over the effect
of permanently barring aliens who are fleeing oppressive
regimes, such as Cuba, Libya, Syria and Iran. Moreover, the
Department believes consular procedures and heightened
awareness provide safeguards against terrorists since the
Diversity Visa applicant must fulfill all of the standard
requirements of an immigrant visa. In addition, by October, all
immigrant and nonimmigrant visa applicants will have their
index fingers digitally scanned and checked against a database.
Although these measures and several others tighten the
program, we remain concerned that hostile intelligence
officers, criminals and terrorists could use the program to
enter our country as permanent residents. It may be advisable
to consider legislation similar to the Enhanced Border Security
and Visa Reform Act of 2002. This bars the issuance of visas to
aliens from states sponsoring terrorism unless the Secretary
decides that recipients do not pose a risk to our national
security.
Our report also pointed out widespread abuse in the
Diversity Visa Program. Much of this is tied to applicant pools
which predate electronic registration. I provided some examples
of fraud in my written statement. The Kentucky Consular Center
continues to detect thousands of duplicates each year.
Currently, the penalty for submitting detected duplicate
entries is disqualification for the year that the duplicate
submission was detected. Applicants who also file under a false
identity and fraudulent documents are commonplace since many
countries have little control over their vital records. As a
result, OIG recommended that the Department propose changing
the Immigration and Nationality Act to bar permanently from
future lottery programs all adult applicants who are identified
as multiple filers.
While Department officials agree, the law only makes
someone ineligible for a visa on the basis of fraud or willful
material misrepresentations. In the case of Diversity Visa
applicants, it is unclear whether submitting multiple lottery
entries is illegal. While we welcome the Department's agreement
on this issue, it is inherently unfair that applicants who play
by the rules are disadvantaged. Clarifying legislation might
provide a basis to eliminate multiple filers.
Unlike other visa applications, the current Diversity Visa
processing fee is collected only from applicants selected as
winners. Millions of applicants pay nothing to participate. For
fiscal 2002, the Department estimated that program costs not
covered by the fee were about $840,000. OIG recommended that
the Department seek authority to collect processing fees from
everybody who applies. In addition, many embassies that issue
large numbers of Diversity Visas have small Fraud Units or none
at all. As a result, we recommended that the Department
determine whether antifraud field investigations would be
useful in Diversity Visa cases and how the Diversity Visa fee
could be devoted to antifraud work at overseas missions.
The Department considered self-financing of this program to
be impractical, at least under the old paper-based system. But
with electronic filing, applicants could pay a small fee for
registration, enabling the U.S. Government to recoup costs and
fund more fraud prevention officers overseas. Such an approach
might also reduce multiple applications, since entry would no
longer be free.
We also determined the Department could do a better job of
identifying all costs associated with the Diversity Visa
Program from overseas posts. Section 636 of Public Law 104-208
provides for charging a fee associated with the Diversity Visa
Program, which currently is charged only to program winners.
Perhaps legislation would allow the Department to expand fee
collection to include all applicants and fund antifraud
investigators.
To conclude, Mr. Chairman, the Department and the Bureau of
Consular Affairs have made progress in reducing fraud and
vulnerabilities. We believe applicants from state sponsors of
terrorism should be excluded, that multiple applicants should
be penalized and that the program should charge application
fees that would enable the Department to recoup its costs for
hiring more people and would reduce the number of multiple
applicants.
OIG will undertake a follow-up review, and we will continue
to work with the Department and with the Congress to recommend
improvements.
Thank you very much, and I would be happy to answer any
questions.
[The prepared statement of Ms. Patterson follows:]
Prepared Statement of Anne W. Patterson
Chairman Hostettler, Representative Jackson Lee, and Members of the
Subcommittee:
Thank you for the opportunity to testify on the Office of Inspector
General's (OIG) work concerning the Department's Diversity Visa
Program. I would like to discuss with you the findings and
recommendations of our report last fall and the Department's progress
in responding to our recommendations. I would also note that OIG has a
good working relationship with the Department and is conducting ongoing
work concerning consular operations to strengthen consular programs and
identify methods to reduce fraud in visa and passport programs. The
Department has taken some steps toward addressing OIG's
recommendations. However, legislative changes may be needed to
effectively address current Diversity Visa Program vulnerabilities,
including barring applicants from states sponsoring terrorism, barring
applicants with multiple filings, and ensuring that the program is
self-financing.
BACKGROUND
In FY 1995, Congress established a Diversity Visa Program that
authorized up to 50,000 immigrant visas annually to persons from
countries that were underrepresented among the 400,000 to 500,000
immigrants coming to the United States each year. Most immigration to
the United States is based upon family relationships or employment.
Diversity visa applicants, however, can qualify on the basis of
education and/or work experience. Applicants need only to demonstrate
that they have the equivalent of a U.S. high school education or two
years of work experience in an occupation that requires at least two
years of training or experience. If ultimately selected as lottery
winners, like other immigrant applicants, they are subject to all of
the grounds upon which a visa can be denied, including medical
condition and criminal behavior.
Originally, the Diversity Visa Program was one of many immigrant
visa functions assigned to the National Visa Center at Portsmouth, New
Hampshire. In September 2000, diversity visa processing was moved to a
newly remodeled site at Williamsburg, Kentucky, the Kentucky Consular
Center (KCC). Unlike earlier lottery programs, KCC processes lottery
applications in the United States, thereby relieving overseas missions
of many clerical and file storage responsibilities. Kentucky Consular
Center employees receive and process lottery entries, select winners,
process winners' visa applications, and schedule applicant interviews
at missions abroad. Consular officers at those missions issue or deny
the applications.
RECENT DEVELOPMENTS IN THE DIVERSITY VISA PROGRAM
Last week, I toured the Kentucky Consular Center. I was impressed
with the center's ability to eliminate duplicate entries based on
addresses and names electronically, including the use of facial
recognition technology. I am sure that the Bureau of Consular Affairs
would welcome members of your staff to visit the center to see this
technology first hand. The technology can do the many procedures that
simply were not possible when seven million or fifteen million
envelopes came in by hand. Until this year, the diversity visa lottery
was paper-based, which the Department characterized as labor intensive,
inefficient, and costly. However, this year the Department implemented
an entirely electronic registration system called E-DV for the DV-2005
lottery, which received nearly six million entries via the Internet
during the two-month registration period. I should note also that our
review took place prior to E-DV's initiation, which occurred between
November 1 and December 30, 2003. Therefore, OIG plans to reexamine its
previous findings in the context of this new technology. OIG will do
this along with other ongoing consular program reviews and will
continue to recommend ways to strengthen these programs.
OIG's ongoing consular work has identified fraud that includes the
Diversity Visa Program, although, these incidents seem to be tied to
applicant pools that pre-date the E-DV program registration. At one
post, we discovered that some applicants submitted duplicate
applications using similar photos that were undetected by the facial
recognition technology. At another post, we discovered a common scheme
used by some Foreign Service national employees, who offer to buy
winning lottery applications, taking advantage of the fact that many
people cannot afford the full costs associated with the visa process.
In these cases, FSNs offered to purchase winning applications for up to
$4,000. Once in possession of the winning applications, FSNs would
switch the photographs with imposters, who paid several times over the
original purchase price. In some cases, FSNs switch entire application
packages.
At this point in the E-DV program, lottery winners are just
beginning to be notified to start the visa application process. Using
facial and name recognition technology and data mining techniques, each
winner will be checked against the database of all other applicants to
identify duplicate entries, which will result in disqualification. The
Department believes once E-DV is further implemented, these types of
fraud will be less likely to occur. Our future work will assess whether
these vulnerabilities have been fully addressed.
FINDINGS AND RECOMMENDATIONS
In terms of our original diversity visa review, we note that
section 306 of the Enhanced Border Security and Visa Reform Act of 2002
(Pub. L 107-173) generally prohibits issuance of nonimmigrant visas to
aliens from state sponsors of terrorism unless the Secretary of State
judges that they do not pose a risk to the national security of the
United States. There are no parallel restrictions for immigrant visas,
including the Diversity Visa Program. Because of this, and because of
the program's vulnerability to fraud and its ease of application, OIG
believes that this program contains significant vulnerabilities to
national security as hostile intelligence officers, criminals, and
terrorists attempt to use it to enter the United States as permanent
residents. As a result of this finding, OIG recommended that the
Department propose changes to the Immigration and Nationality Act to
bar from the Diversity Visa application process applicants from nations
that sponsor terrorism.
The Department agrees with OIG in principal regarding this
recommendation, but has expressed concerns over the subsequent effect
of permanently barring aliens who are fleeing the oppressive regimes of
states that sponsor terrorism. For example, aliens fleeing oppression
in countries such as Cuba, Libya, Syria, and Iran would be ineligible
to apply for a visa via the Diversity Visa Program if our
recommendation were implemented.
It is also true that consular procedures and heightened awareness
will provide greater safeguards against terrorists entering through the
diversity visa process. Consular officers interview all diversity visa
winners and check police and medical records once applicants begin the
actual visa application process. By October of this year, all immigrant
and non-immigrant visa applicants will have their index fingers
digitally scanned. This system is already in place at 17 of the
Department's immigrant visa sections and over 100 non-immigrant
sections. In fact, all posts will have this capability by the end of
October. This means that fingerprints can be run through U.S. databases
of criminals and terrorists in about 15 minutes. It also means that if
an applicant applies for a non-immigrant visa as Mr. Smith and later
applies for a diversity visa under a different name, the fingerprint
system will identify him as a fraudulent applicant. The electronic
registration system should reduce fraud and reduce the burden on our
consular officers. It is also worth observing that in Bangladesh,
consular officers rejected 85 percent of the 2002 diversity visa
winners using the visa application process, indicating that the
consular office at that post has been very alert to the propensity for
fraud.
OIG's report pointed out widespread abuse in the Diversity Visa
Program. Despite the strictures against duplicate submissions, the
Kentucky Consular Center detects thousands of duplicates each year.
Currently, the penalty for submitting detected duplicate entries is
disqualification for the year that the duplicate submission was
detected. Identity fraud, meanwhile, is endemic, and fraudulent
documents are commonplace. Many countries exercise poor control over
their vital records and identity documents, exacerbating the potential
for program abuse. In some countries, control is so poor that consular
officers must assume that all travel, identity, and civil documents are
unreliable. As a result, OIG recommended that the Department propose
changing the Immigration and Nationality Act (INA) to bar permanently
from future diversity lottery programs all adult applicants who are
identified as multiple filers.
The Department told OIG that it agrees with this recommendation and
is currently reviewing the legal ramifications of our recommendation.
Current provisions of INA 212(a)(6)(C) only renders persons as
ineligible for a visa on the basis of fraud or willful material
misrepresentations. In the case of diversity visa applicants, it is
unclear whether submitting multiple lottery entries constitutes
material misrepresentation. The Department has additional concerns over
permanently eliminating applicants unfairly and permanently if, for
example, applicants have no knowledge or involvement with the
submission of multiple lottery entries. While OIG welcomes the
Department's agreement on this issue, perhaps clarifying legislation
would provide a means to permanently eliminate multiple filers from the
program.
Several offices and officers in CA's Directorate of Visa Services
(CA/VO) manage and oversee parts of the Diversity Visa Program and OIG
believes that management needs to be tightened. Missions do not have
current written guidance on what is, country by country, the equivalent
of a U.S. high school education. Many missions do not have the
personnel or language resources to determine which applicants qualify
through training or work experience. CA/VO prepares an annual
statistical report for the Congress on diversity visa issuances, but
does not include much trend analysis for the Kentucky Consular Center,
overseas missions, or senior CA management. OIG recommended that the
Department issue standards for determining whether foreign high school
educations are comparable to U.S. high school educations. OIG believes
the Department should also prepare an annual report on regional and
worldwide diversity visa trends and program issues.
Responding to this recommendation, the Department recently
purchased a newly published reference book that translates and
standardizes foreign educational credentials for use in validating
educational requirements of applicants and is planning to distribute a
copy to all diversity visa posts. The Department is preparing a report
on trends and issues for the recently completed DV-2003 program. OIG
considers this as a first step toward establishing guidance for this
program. In terms of our recommendation that the Department prepare an
annual report, we understand that the Department is summarizing the
demographic data trends and identifying program issues revealed through
its diversity visa database. We look forward to receiving this data and
observing what it shows in terms of fraud indicators and other program
trends.
Unlike other visa applications, the current diversity visa
processing fee is collected only from applicants selected as winners.
Millions of applicants, therefore, pay nothing to participate, and the
U.S. government pays all costs not covered by the diversity visa fee.
For fiscal 2002, the Department estimated that program costs not
covered by the fee exceeded $840,000. Since program shortfalls persist,
OIG recommended that the Department seek authority to collect
processing fees from all persons who apply for the diversity visa
program. In addition, OIG determined that no current diversity visa
fees are allotted to fraud prevention. Antifraud activities at post are
generally dominated by nonimmigrant visa fraud cases. Many embassies
and consulates with significant diversity visa issues, therefore, do
not routinely refer problem cases to their antifraud units, and some
missions have no antifraud units. As a result, OIG recommended that the
Department determine whether antifraud field investigations are useful
in diversity visa cases and how the diversity visa fee could be
appropriately devoted to antifraud work at overseas missions.
The Department charges nothing for entry into the program and has
determined that charging a small fee for the paper-based registration
system is impractical. Although OIG agrees that an application fee for
paper-based applications may not be feasible, the new electronic system
may open the door for charging a fee that will cover program costs and
the associated administrative costs. According to a sample taken from
one region of applicants, about 50 percent of applicants apply from the
United States and 70 percent of applicants already use a facilitator to
assist with registration. Many of these facilitators can be found on
the Internet and charge fees for services. Using an electronic payment
system, applicants could pay a small fee for diversity visa
registration, enabling the U.S. government to recoup costs and fund
more fraud prevention officers overseas, especially in countries with
critical fraud problems. Such an approach might also reduce multiple
entries since applications would no longer be free. Further, OIG
determined that the Department could do a better job of identifying all
costs associated with the Diversity Visa Program from overseas posts.
Currently, that information is not fully reported. Further, section 636
of Public Law 104-208 provides for charging a fee associated with the
Diversity Visa Program, which currently is charged only to program
winners. Perhaps clarifying legislation would allow the Department to
expand fee collection to include all program applicants and fund anti-
fraud investigators.
When OIG began its review of the Diversity Visa Program, there was
no antifraud officer position at the Kentucky Consular Center. OIG has
been advised that a position now is approved for that facility and an
officer soon will be in place to coordinate antifraud issues and
policies. When I visited the center last week, the Department affirmed
that they were in the process of bringing an antifraud officer on
board. At the time of our review, only the center's director was an
experienced consular officer. OIG also recommended workload studies to
determine whether a full-time visa officer position and a language-
designated telephone inquiry position should be established at the
Kentucky Consular Center.
With regard to OIG's recommendation to establish a language-
designated telephone inquiry position, the Department determined that,
since no predominating language exists among diversity visa applicants
other than English, the Department is considering the idea of switching
foreign language inquiries to the National Visa Center, where employees
speak 40 different languages. OIG endorses this idea since it appears
to be feasible.
CONCLUSIONS
To sum up, Mr. Chairman, the Department and the Bureau of Consular
Affairs have made progress in reducing fraud and vulnerabilities by
implementing the facial recognition system for diversity visa
applicants. Certainly, our contacts with the Bureau of Consular Affairs
and consular officers overseas indicated a widespread understanding of
the shortcomings of the program. In OIG, we believe that applicants
from state sponsors of terrorism should be excluded, that multiple
applicants should be penalized, and that the program should charge
application fees that would enable the Department to recoup its costs
for hiring more people and would reduce the number of multiple
applicants. My experienced consular inspectors have also suggested a
possible improvement, excluding from the program countries with
extremely high levels of fraud. Most of these recommended changes will
require legislation. We plan to review this program in the next few
months in light of the changes in technology and the widespread public
and congressional interest. We will continue to work with the
Department and with the Congress to recommend solutions to these
issues.
Thank you Mr. Chairman. I am happy to answer your questions and
those of other subcommittee members at the appropriate time.
Mr. Hostettler. Thank you, Ambassador.
Professor Ting?
STATEMENT OF JAN TING, PROFESSOR OF LAW, TEMPLE UNIVERSITY
JAMES E. BEASLEY SCHOOL OF LAW
Mr. Ting. Thank you, Mr. Chairman.
In summarizing my written testimony, I would like to note
that I have three main objections to the Diversity Visa
Lottery.
First, the lottery is unfair and expressly discriminatory
on the basis of ethnicity and implicitly race;
Second, the lottery does not serve, and is inconsistent
with, the priorities and best interests of the United States,
as otherwise expressed in our immigration laws;
And, third, the lottery is incomprehensibly complicated, a
cruel deception of the overwhelming majority of the millions of
would-be immigrants who apply for it every year, and as
Ambassador Patterson's written testimony today suggests to me,
unadministrable.
First, it is not an overstatement to say, as I have, that
the history of U.S. immigration law is the history of Asian
exclusion from the United States. Legal restrictions on
immigration to the U.S. were not enacted until the late 19th
century, when immigrants began arriving from Asia. The first
court test of U.S. immigration law, one of the first cases read
today by any student of U.S. immigration law, is the Chinese
Exclusion case of 1889, in which the U.S. Supreme Court
unanimously upheld the constitutionality of the Chinese
Exclusion Act. This law initiated 61 years of explicit Chinese
exclusion from the United States.
The Supreme Court, sustaining the statute against
constitutional challenge, provides the legal and constitutional
authority for the modern system of restrictive immigration law
and border control we have today. This and other Asian
exclusion cases are the legal foundation for the U.S.
immigration system.
Even after the repeal of the discriminatory National
Origins Quota System in 1965, vestiges of Asian exclusion
remain in our immigration laws. One of those vestiges is the
per-country cap of Section 202(a)(2) of the Immigration and
Nationality Act, which currently obliges qualified immigrants
from India, the Philippines and Mexico to wait longer,
sometimes significantly longer, for immigrant visas than
equally qualified immigrants from all other countries.
The other vestige of Asian exclusion in our immigration law
is the Diversity Visa Lottery, from which most Asians, all
Mexicans and some other Latin Americans have been excluded from
the very first year of Diversity Visas, which in my written
testimony I note actually began in 1987. The 14 countries whose
nationals were disqualified from the DV Lottery for fiscal year
2004 include China, India, Pakistan, the Philippines, South
Korea and Vietnam. The other disqualified countries for fiscal
year 2004 are Canada, Colombia, the Dominican Republic, El
Salvador, Haiti, Jamaica, Mexico and the United Kingdom, except
for Northern Ireland.
Would-be immigrants from these 14 countries and other
countries in other years have been excluded from the Diversity
Visa Lottery solely on the basis of their ethnicity. I find it
difficult to justify this current discrimination as a remedy
for the adverse impact of the 1965 immigration reform
abolishing discriminatory ethnic quotas. When discrimination
against women, minorities and the handicapped is ended by law,
should able-bodied white males receive a legal remedy because
they have been adversely affected by having to compete against
others who are finally treated equally? In any area of American
law, except immigration law, the explicit discrimination of the
Diversity Visa Lottery would fail the constitutional test of
strict scrutiny for lack of a compelling governmental purpose.
As the Chairman noted, these visas have been called anti-
diversity visas since they were created to offset the diversity
which would otherwise result from nondiscriminatory
immigration.
The second objection I have is that the two primary
priorities Congress has identified for our immigration system,
which I must say is the most generous in the world, those two
priorities are family reunification and work skills. While we
can debate the extent to which Congress has correctly balanced
these two priorities or the extent to which Congress should
extend each of these priorities, there can be no doubt that
each is designed and intended to benefit the people of the
United States.
In comparison, the benefit, if any, of Diversity Visas to
the people of the United States is highly questionable and far
from clear. Current law makes the spouses and minor children of
legal permanent resident aliens wait in a queue from which 5-
year-old applications are just now being processed. Spouses and
children of Mexican LPRs--legal permanent residents--wait in an
even longer line from which applications more than 7 years old
are just now being processed. The resulting separations have
caused so much suffering and misery that Congress has had to
create a temporary visa category for such spouses and children
whose petitions have been pending for at least 3 years. How can
it make sense to give out 50,000 immigrant visas each year in a
discriminatory lottery, when admissible spouses and minor
children of legal permanent residents are kept out of the
United States, making family reunification impossible?
Winners of Diversity Visa Lotteries are admitted even in
the absence of job skills or family ties to the United States.
How does this help the United States?
My last point is simply that the Diversity Visa Lottery is
too complicated, burdensome and arbitrary. I rely upon the
testimony of Ambassador Patterson, and I second the testimony
of Dr. Camarota on that record, but my time is up and so I will
stop here.
Thank you.
[The prepared statement of Mr. Ting follows:]
Prepared Statement of Jan Ting \1\
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\1\ Professor of Law, Temple University Beasley School of Law;
formerly Assistant Commissioner, U.S. Immigration and Naturalization
Service (INS) from 1990 to 1993.
---------------------------------------------------------------------------
Mr. Chairman and Members of the Subcommittee. I am grateful for
your invitation to speak today to discuss the Diversity Visa Lottery
with you and with the other presenters.
After Congress in 1965 finally repealed the racially and ethnically
discriminatory national origins immigration quota system, the
proportion of non-European immigrants--especially those from Asia--to
the United States increased significantly.\2\ By 1986, members of
Congress were seeking to ameliorate the corresponding reduction in
European immigration which was an unexpected byproduct of the 1965
legislation.\3\ The so-called NP-5 program provided 5,000 non-
preference visas for 1987 and the same number for 1988. Because
eligibility for those visas was limited to natives of countries
``adversely affected by'' the 1965 immigration reform, the countries
receiving the most visas turned out to be Ireland, Canada, and the
United Kingdom.\4\
---------------------------------------------------------------------------
\2\ 1993 Statistical Yearbook of the Immigration and Naturalization
Service (1994), chart A at 12.
\3\ See Aleinikoff, Martin and Motomura, Immigration and
Citizenship (Thomson West, 5th ed., 2003), pages 282-284; Legomsky,
Immigration and Refugee Law and Policy (Foundation Press, 3rd ed.,
2002), pages 235-241; Wolfsdorf and Rahman, The Diversity Visa Lottery,
77 No. 37 Interpreter Releases 1365 (2000); Ting, ``Other Than A
Chinaman:: How U.S. Immigration Law Resulted From and Still Reflects a
Policy of Excluding and Restricting Asian Immigration, 4 Temple Pol.
And Civil Rights L.R. 301 (1995).
\4\ Legomsky, supra note 3, at 236 (citing 64 Interpreter Releases
291 (1987)).
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Encouraged by this desired result, Congress extended the program
and increased the visas available to 15,000 each year for 1989 and
1990.\5\ The same statute established the successor OP-1 program which
offered an additional 10,000 visas each year for 1990 and 1991 in a
lottery open only to those countries which used up less than 25% of the
maximum per country cap allowable.\6\ Thus would-be immigrants from
China, India, Mexico, the Philippines, and other high immigration
countries continued to be ineligible for diversity visas.\7\
---------------------------------------------------------------------------
\5\ Ibid. (relying on the Immigration Amendments of 1988, Pub. L.
No. 100-658, Sec. 2, 102 Stat. 3908).
\6\ Ibid. (referring to the Immigration Amendments of 1988, Pub. L.
No. 100-658, Sec. 3(b), 102 Stat. 3908).
\7\ See Diversity Visa Lottery Registration Set for Earlly 1995, 71
Interpreter Releases 1587 (1994).
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Continuing Congressional unhappiness with the predominantly Asian
and Latin American character of immigration, and corresponding
satisfaction with the success of the diversity visa programs in
leavening the immigration mix with more Europeans, were reflected the
Immigration Act of 1990. For the fiscal years of 1992, 1993, and 1994,
a complex statutory scheme was enacted for the so-called AA-1 program
which provided 40,000 visas each year in a lottery from which most
Asian and Latin American intending immigrants were excluded.\8\
---------------------------------------------------------------------------
\8\ Legomsky, supra note 3, at 236 (referring to the Immigration
Act of 1990, Pub. L. No. 101-649, Sec. 132, 104 Stat. 4978, 5000).
---------------------------------------------------------------------------
To insure that Congressional intent was implemented, the 1990 Act
in a curiously indirect and camouflaged way, effectively directed that
at least 40% of each year's AA-1 visas, or 16,000, be issued to
citizens of one European country, Ireland.\9\ The same 1990 Act
increased the number of diversity visas to the current level of 55,000
annually.\10\ The deliberately complex formula for assigning these
visas arbitrarily disqualifies all natives from countries sending more
than 50,000 immigrants in a five-year period under the regular family
and employment preferences.\11\
---------------------------------------------------------------------------
\9\ Ibid. (referring to the Immigration Act of 1990, Pub. L. No.
101-649, Sec. 132(c), 104 Stat. at 5000).
\10\ This number was effectively reduced to 50,000 beginning in FY
1999 by an annual offset of 5,000 to cover beneficiaries of the
Nicaraguan and Central American Relief Act (NACARA), Pub. L. 105-100,
Sec. 203(c), 111 Stat. 2160 (1997). See Aleinikoff, supra note 3, at
281-282; Legomsky, supra note 3, at 236.
\11\ INA Sec. 203(c), 8 U.S.C. Sec. 1153(c).
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WHAT'S WRONG WITH THE DIVERSITY VISA LOTTERY?
I have three main objections to the diversity visa lottery: 1. The
lottery is unfair and expressly discriminatory on the basis of
ethnicity and, implicitly, race. Whether or not this is legal, it is
not good policy. 2. The lottery does not serve and is inconsistent with
the priorities and best interests of the United States as otherwise
expressed in our immigration laws. 3. The lottery is incomprehensibly
complicated, an administrative burden, and a cruel deception of the
overwhelming majority of the millions of would-be immigrants who apply
for it each year.
I. IT'S UNFAIR AND DISCRIMINATORY.
It is not an overstatement to say, as I have, that the history of
U.S immigration law is the history of Asian exclusion from the United
States.\12\ Legal restrictions on immigration to the U.S. were not
enacted until the late 19th century when immigrants began arriving from
Asia. The first court test of U.S immigration law, and one of the first
cases read today by any student of U.S. immigration law is the so-
called Chinese Exclusion Case \13\ of 1889 in which the U.S. Supreme
Court unanimously upheld the constitutionality of the Chinese Exclusion
Act \14\ of 1882. This law initiated 61 years of explicit Chinese
exclusion from the United States. The Supreme Court's sustaining this
statute against constitutional challenge provides the legal and
constitutional authority for the modern system of restrictive
immigration law and border control.\15\
---------------------------------------------------------------------------
\12\ See Ting, supra note 3.
\13\ Chae Chan Ping v. United States, 130 U.S. 581 (1889).
\14\ Chinese Exclusion Act, ch. 126, 22 Stat. 58 (1882).
\15\ The Chinese Exclusion Case was cited with approval in 2001 by
Justice Breyer in Zadvydas v. Davis, 533 U.S. 678 (2001), though for
its dictim that even sovereign powers are ``restricted in their
exercise only by the Constitution itself and considerations of public
policy and justice.'' See also Sanmuganathan Nakeswaran v. INS, 23 F.3d
394 (1st Cir. 1994) (quoting Kleindienst v. Mandel, 408 U.S. 753, 769-
770 (1972)) where the First Circuit cites Chinese Exclusion for the
proposition that ``plenary congressional power to make policies and
rules for exclusion of aliens has long been firmly established.''
---------------------------------------------------------------------------
In 1893, in a second landmark immigration opinion, a divided
Supreme Court upheld the deportation of a Chinese laborer who could not
produce as required by a revised Chinese Exclusion Act ``at least one
credible white witness'' to testify he was a lawful resident.\16\ In
upholding the power of Congress to order deportation of immigration law
violators, the Supreme Court determined that deportation is not
criminal punishment, and therefore that constitutional requirements of
due process, trial by jury, and the prohibitions against unreasonable
searches and seizures, as well as against cruel and unusual
punishments, have no application in deportation proceedings.\17\ Like
its predecessor, the Chinese Exclusion Case, Fong Yue Ting v. United
States remains good law and is routinely studied and taught in U.S. law
school courses on immigration law.
---------------------------------------------------------------------------
\16\ Fong Yue Ting v. United States, 149 U.S. 698 (1893). See Ting,
supra note 2, at 304-305.
\17\ Ibid. at 730.
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The Nationality Act of 1940 codified the existing laws on
naturalization by specifying that the right to become a naturalized
citizen ``shall extend only to white persons, persons of African
nativity or descent, and descendents of races indigenous to the Western
hemisphere,'' \18\ i.e. not Asians. When explicitly exclusionary anti-
Asian statutes were repealed in the 1940's and 1950's, Asians received
the smallest possible immigration quotas under the national origins
quota system.\19\
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\18\ Nationality Act, ch. 876, 54 Stat. 1137, 1140 (1940).
\19\ See Immigration and Nationality Act, ch. 477,
Sec. Sec. 201(a), 202(e), 66 Stat. 163 (1952). See Ting, supra note 2,
footnotes 32 and 33, pages 305-306.
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After repeal of the national origins quota system in 1965,\20\ only
vestiges of Asian exclusion remain in our immigration laws. One of
those vestiges is the per-country cap of INA Sec. 202(a)(2), 8 U.S.C.
Sec. 1152(a)(2), which currently obliges qualified immigrants from
India, the Philippines and Mexico to wait longer, sometimes
significantly longer, for immigrant visas than equally qualified
immigrants from all other countries.\21\ Until well into the 1990's,
immigrants from China also suffered from the discrimination of the per-
country cap.\22\
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\20\ See Act of Oct. 3, 1965, Pub. L. No. 89-236 Sec. 201(e), 79
Stat. 911 (terminating the quota system as of June 30, 1968).
\21\ See the State Department's Visa Bulletin for any month. The
Visa Bulletin for April, 2004, is reprinted at 84 Interpreter Releases
351, 367 (March 15, 2004). See also the discussion of per-country caps
at Ting, supra note 2, at 308.
\22\ See for example the State Department's Visa Bulletin for
November 1994, reprinted in Aleinikoff, Martin and Motomura,
Immigration Process and Policy (West, 3rd ed., 1995) at p. 135.
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The other vestige of Asian exclusion in our immigration law is the
diversity visa lottery from which most Asians, all Mexicans, and some
other Latin Americans have been excluded from the very first year of
diversity visas in 1987. The 14 countries whose nationals were
disqualified from the Diversity Visa Lottery for FY 2004 include China,
India, Pakistan, the Philippines, South Korea, and Vietnam. The other
disqualified countries for FY 2004 are Canada, Colombia, the Dominican
Republic, El Salvador, Haiti, Jamaica, Mexico, and the United Kingdom
(except Northern Ireland!).\23\
---------------------------------------------------------------------------
\23\ Aleinikoff, supra note 3, at p. 282.
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Would-be immigrants from these 14 countries (and other countries in
other years) have been excluded from the Diversity Visa Lottery solely
on the basis of their ethnicity. I find it difficult to justify this
current discrimination as a remedy for the adverse impact of the 1965
immigration reform abolishing discriminatory ethnic quotas. When
discrimination against women, minorities and the handicapped is ended
by law, should able-bodied white males receive a legal remedy because
they have been adversely affected by having to compete against others
who are finally treated equally?
Students of immigration law have correctly observed that the so-
called diversity visas might properly be called anti-diversity visas,
since they were created to offset the diversity resulting from non-
discriminatory immigration.\24\
---------------------------------------------------------------------------
\24\ Legomsky, supra note 3, at 241.
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Yes, discrimination in the Diversity Visa Lottery is
constitutional, just as Chinese Exclusion was constitutional, and the
deportation law requiring one credible white witness was
constitutional, and the national origins quota system was
constitutional. But that doesn't make it either right or good public
policy. The fact that beneficiaries of the Lottery now include
significant numbers of Africans and Bangladeshis does not make the
discrimination against other nationalities, solely because of
ethnicity, any less objectionable. The most recent available statistics
for FY 2001 and 2002 continue to show Europe as the number one regional
source of diversity immigrants.\25\
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\25\ For FY 2002, see 2002 INS Statistical Yearbook, Table 8,
available on-line at http://uscis.gov/graphics/shared/aboutus/
statistics/IMM02yrbk/IMM20002.pdf. For FY 2001 see 2001 INS Statistical
Yearbook, Table 8, quoted in Aleinikoff, supra note 3, at 283.
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II. IT'S INCONSISTENT WITH NATIONAL INTEREST, PRIORITIES.
Academics can debate the question of whether we should put any
limits on the number of immigrants admitted each year, or whether we
should accept every single person in the whole wide world who wants to
come here. Congress has decided to limit the number of immigrants
admitted each year, and I have no doubt that the decision to put a
limit on the number of immigrants admitted each year enjoys popular
support.\26\
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\26\ It should be noted that our immigration laws and policy are
the most generous in the world. We admit each year more legal permanent
residents with opportunity to become citizens than all the rest of the
nations of the world combined.
---------------------------------------------------------------------------
But having made the decision to set the number of admissions below
the number of people who would like to immigrate, Congress must answer,
and has answered the question, which would-be immigrants should we
admit? We must necessarily have what I call a ``pick and choose''
system of immigration, where we pick and choose those who will be
admitted as immigrants from all those who would like to be chosen.
The two primary priorities Congress has chosen are family re-
unification and work skills.\27\ While we can debate the extent to
which Congress has correctly balanced these two priorities, or the
extent to which Congress has extended each of these priorities, there
can be no doubt that each of these priorities is designed and intended
to benefit the people of the United States. In comparison, the benefit,
if any, of diversity visas, to the people of the United States is
debatable and far from clear.
---------------------------------------------------------------------------
\27\ INA Sec. 203(a),(b), 8 U.S.C. Sec. 1153(a),(b).
---------------------------------------------------------------------------
While we place no numerical limits on the admission of immediate
relatives of U.S. citizens, current law makes the spouses and minor
children of legal permanent resident aliens (LPR's) wait in a queue
from which five year old applications are just now being processed.\28\
Spouses and children of Mexican LPR's wait in an even longer line from
which applications more than seven years old are just now being
processed.\29\ The resulting separations have caused so much suffering
and misery that Congress has had to created a temporary visa category
for such spouses and children whose petitions have been pending for at
least 3 years.\30\
---------------------------------------------------------------------------
\28\ Supra, note 21.
\29\ Ibid.
\30\ INA Sec. 101(a)(15)(V), 8 U.S.C. Sec. 1101(a)(15)(V).
---------------------------------------------------------------------------
How can it make sense to give out 50,000 immigrant visas each year
in a discriminatory lottery, when admissible spouses and minor children
of LPR's are kept out of the United States, making family re-
unification impossible?
And those are not the only admissible immigrants kept waiting in
long queues while winners of the discriminatory lottery are admitted in
their place. Unmarried adult children of U.S. citizens wait in a line
nearly four years long (unless they are from Mexico or the Philippines
in which case they must wait 10 years or 14 years respectively).
Married children of U.S. citizens must wait seven years (9 years or 14
years if from Mexico or the Philippines respectively). Admissible
siblings of U.S. citizens must wait 12 years (13 years or 22 years if
from India or the Philippines respectively).\31\ And no temporary visas
have been made available for them while they wait.
---------------------------------------------------------------------------
\31\ Supra, note 21.
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Winners of the diversity visa lottery are admitted even in the
absence of any job skills or family ties to the United States. How does
this help the United States? It is true that until about 1978 it was
possible to gain admission as a ``nonpreference'' immigrant without
such qualifications.\32\ And it has been argued that perhaps the visa
lottery can be justified as a means to give hope to a large group of
people wishing to immigrate to the U.S. but with no other way to
acquire immigrant status.\33\
---------------------------------------------------------------------------
\32\ Preference immigrants now use up all available visa numbers.
See Aleinikoff, supra, note 3, at 282.
\33\ Wolfsdorf, supra, note 3.
---------------------------------------------------------------------------
If it does provide hope, that hope is largely an illusion, since
millions of applications are received each year for the 50,000
diversity visas made available.\34\ For the FY 2003 lottery held in
October, 2001, about 8.7 million applications were received.\35\
---------------------------------------------------------------------------
\34\ The effective number of diversity visas was reduced from
55,000 to 50,000 by an annual set-aside of 5,000 visas each year for
beneficiaries of the Nicaraguan Adjustment and Central American Relief
Act (NACARA), Pub. L. 105-100, 111 Stat. 2160 (1997).
\35\ Aleinikoff, supra., note 3, at 283.
---------------------------------------------------------------------------
Even if that slight hope were deemed sufficient to maintain a visa
lottery, the ethnic discrimination should be ended in order to spread
the hope worldwide, and the number could be cut back to 2,500 or 5,000,
to provide additional visas for family reunification of relatives of
LPR's and U.S. citizens, which should be a higher priority.
III. IT'S TOO COMPLICATED, BURDENSOME AND ARBITRARY.
The complexity of the current statute providing for the diversity
visa lottery \36\ is comparable to that of the most complicated
provisions of the Internal Revenue Code. Defenders of the lottery
should be forced to read through the statute and apply it to calculate
the number of visas allocable to each country. The sheer number of
applications which must be processed each year compared to the number
of diversity visas actually granted testifies to the waste of human and
administrative resources.\37\
---------------------------------------------------------------------------
\36\ INA Sec. 203(c), 8 U.S.C. Sec. 1153(c).
\37\ About 8.7 million applications received for the FY 2003
program. Aleinikoff, supra., note 3 at 283.
---------------------------------------------------------------------------
This complexity and burden on the U.S. government creates potential
for abuse of the diversity visa system. What is for most foreigners the
false illusion that they can gain legal admission to the U.S. through
the lottery can make them susceptible to swindlers who claim inside
knowledge and special connections in seeking to sell their services to
assist applicants. This kind of abuse seems almost inevitable, and has
drawn the attention of the Federal Trade Commission.\38\
---------------------------------------------------------------------------
\38\ See ``Federal Trade Commission Alleges Fraud by Visa Services
Company'' announcements by U.S. Dept. of State and Federal Trade
Commission, updated 13 Nov. 2003, accessed at http://usinfo.state.gov/
gi/Archive/2003/Nov/13-850792.html on April 24, 2004.
---------------------------------------------------------------------------
Normal rules of chargeability may allow persons of one nationality
to utilize a different nation of chargeability either to make
themselves eligible or to improve their chances. For example, an alien
from a high admission country, ineligible for a diversity visa, may
qualify for a derivative diversity visa as the spouse or child of an
applicant from another country.\39\ And since marital status is
determined not at the time of application or selection, but at the time
of the principal applicant's admission to the United States, anyone the
applicant marries before admission to the U.S., even though not named
on the application, is entitled to derivative status as a diversity
immigrant.\40\
---------------------------------------------------------------------------
\39\ INA Sec. 202(b)(2), 8 U.S.C. Sec. 1152(b)(2).
\40\ 9 FAM 42.33 Note 6.8, accessed at http://foia.state.gov/
masterdocs/09FAM/0942033N.PDF on April 24, 2004. See also INA
Sec. 203(d), 8 U.S.C. Sec. 1153(d).
---------------------------------------------------------------------------
An alien from a high admissions country may apply for derivative
chargeability through a spouse or parent of a different nationality
even if the spouse or parent is not himself or herself applying for the
diversity visa lottery. In such cases, both persons are considered to
be applicants for purposes of cross-chargeability, and both must be
issued visas and apply for admission simultaneously.\41\
---------------------------------------------------------------------------
\41\ 9 FAM 42.33 Note 4.2, supra., Note 40.
---------------------------------------------------------------------------
Because chargeability is determined primarily by place of
birth,\42\ a national of an ineligible country may qualify for the
lottery if born in an eligible country, e.g. the child of Chinese
diplomats born in Malawi while parents were on temporary assignment
there. Conversely, children born in ineligible countries while parents
were on temporary assignment, may claim the chargeability of the
foreign state of either parent.\43\
---------------------------------------------------------------------------
\42\ 9 FAM 42.33 Note 4.1, supra., Note 40.
\43\ INA Sec. 202(b)(4), 8 U.S.C. Sec. 1152(b)(4).
---------------------------------------------------------------------------
The statutory requirements of a high school education ``or its
equivalent'' or ``at least 2 years work experience in an occupation
which requires at least 2 years of training or experience'' are also
challenging and problematic.\44\
---------------------------------------------------------------------------
\44\ See 9 FAM 42.33 Notes 7 and 8, supra., note 40.
---------------------------------------------------------------------------
These are not problems that need to be or can be corrected. In my
opinion they are inherent in the notion of a diversity visa lottery.
Instead of trying to get the diversity visa lottery to work better, we
should get to the root of the problems by abolishing the discriminatory
visa lottery itself.
IN CONCLUSION
I urge this subcommittee to endorse repeal of the diversity visa
lottery in order to end this aspect of ethnic discrimination in our
immigration law, re-allocate visa numbers to conform with our
acknowledged immigration priorities, and to simplify U.S. immigration
law and end the waste of human and administrative resources.
I thank the chairman and the members of the subcommittee for the
privilege of presenting my views on this subject.
______
ATTACHMENT
Temple International and Comparative Law Journal
Fall 2003
Articles
IMMIGRATION LAW REFORM AFTER 9/11:
WHAT HAS BEEN AND WHAT STILL NEEDS TO BE DONE
Jan Ting
Copyright 2003
Temple International & Comparative Law Journal; Jan Ting
I. INTRODUCTION
So here we are, eighteen months after the terrorist attacks of
September 11, 2001 (9/11), and the most significant event of the past
eighteen months is what did not happen. The United States has not
experienced another terrorist attack on the scale of 9/11. Would any of
us have dared to so predict eighteen months ago?
Why have we experienced no repetition of 9/11? Have the terrorists
lost interest, or perhaps had a change of heart? Have they concluded
after all that America is basically good? No one can doubt after 9/11
the willingness of terrorists to use weapons of mass destruction
against us if, and as soon as, they can get their hands on them.
Is it mere coincidence that since 9/11 the U.S. government and its
allies have waged war on, pursued, and disrupted the efforts of
terrorists around the world, including those in Afghanistan, Europe,
the Middle East, Southeast Asia, and on the home front? While Osama bin
Laden has so far eluded us, everyone can understand that terrorists on
the run and trying to hide are less dangerous and less able to launch
new terrorist attacks than those who are not.
Changes in U.S. immigration policy have been part of the U.S. war
on terrorism since 9/11. These initiatives by the U.S. government have
drawn objections and protests. My greatest concern about the national
security initiatives enacted since 9/11 is whether the United States is
doing enough.
This paper will explain why the objections and protests against the
war on terrorism are unfounded and will propose additional immigration
policy reforms in its support.
II. PROFILING AND THE SHADOW OF THE INTERNMENT
Several immigration-related initiatives of the U.S. government
since 9/11 have raised concerns about racial profiling and motivated
comparisons to the internment of Japanese aliens and Japanese-Americans
by the U.S. government during World War II. The first of these
initiatives was the effort, announced by the Department of Justice
(DOJ) on November 9, 2001, to conduct voluntary interviews of up to
5,000 young men from countries suspected of harboring terrorists who
had entered the United States as temporary visitors since January 1,
2000.\1\
---------------------------------------------------------------------------
\1\ Jodi Wilgoren, Prosecutors Begin Effort to Interview 5,000, but
Basic Questions Remain, N.Y. Times, Nov. 15, 2001, at B7.
---------------------------------------------------------------------------
The second controversial initiative, announced by the DOJ on
January 8, 2002, prioritized the apprehension and removal from the
United States of 4,000 to 6,000 men from particular countries of
origin, out of more than 300,000 ``absconders'' whose deportability has
been finalized and who have exhausted their administrative and judicial
appeal rights.\2\
---------------------------------------------------------------------------
\2\ Neil A. Lewis, I.N.S. to Focus on Muslims Who Evade
Deportation, N.Y. Times, Jan. 9, 2002, at A12.
---------------------------------------------------------------------------
A third initiative, announced on November 6, 2002, requires special
registration of male visitors to the United States from specified
countries.\3\ Initially limited to male visitors from Iraq, Iran,
Libya, Sudan, and Syria, special registration has been expanded in
phases to cover male visitors from another twenty countries.\4\
---------------------------------------------------------------------------
\3\ Registration of Certain Nonimmigrant Aliens from Designated
Countries, 67 Fed. Reg. 67,766 (Nov. 6, 2002).
\4\ The twenty additional countries are as follows: Afghanistan,
Algeria, Bahrain, Eritrea, Lebanon, Morocco, North Korea, Oman, Qatar,
Somalia, Tunisia, United Arab Emirates, Yemen, Pakistan, Saudi Arabia,
Bangladesh, Egypt, Indonesia, Jordan, and Kuwait.
---------------------------------------------------------------------------
The allegation of racial and ethnic profiling in criticism of these
initiatives was perhaps predictable. However, such concerns are
misdirected. In fact, none of the three initiatives discriminate on the
basis of appearance, skin color, race, ethnicity, or religion. The
individuals subject to these initiatives are certainly being profiled,
but the profiling is done on non-invidious factors, such as age,
gender, and the objective immigration documents presented on entry to
the United States, i.e., passports from designated countries. Legal
precedent supports the legality and constitutionality of these
initiatives. U.S. courts have recognized plenary power over immigration
in the political branches of the U.S. government, and no constitutional
challenge has ever been sustained against such discrimination by
country of origin in screening immigrants or visitors to the United
States.\5\
---------------------------------------------------------------------------
\5\ See The Chinese Exclusion Case, 130 U.S. 581, 604 (1889)
(upholding unanimously the Chinese Exclusion Act, which was cited with
approval by Justice Breyer writing for the majority in Zadvydas v.
Davis, 533 U.S. 678, 695 (2001)); see also Hitai v. INS, 343 F.2d 466
(2nd Cir. 1965) (sustaining the pre-1965 national-origins quota system
even to the extent that it required a Brazilian citizen of Japanese
ancestry to apply for the small Japanese quota instead of being treated
like other citizens of Brazil).
---------------------------------------------------------------------------
One prior case that is particularly relevant to the legality and
constitutionality of these initiatives is the 1979 decision of the U.S.
Court of Appeals for the District of Columbia, Narenji v. Civiletti,\6\
where the court upheld, against constitutional challenge, a Federal
regulation imposing special registration requirements solely on Iranian
students in the United States following the seizure of U.S. diplomats
as hostages in Iran. The U.S. Supreme Court declined to consider an
appeal from that opinion.\7\
---------------------------------------------------------------------------
\6\ See Narenji v. Civiletti, 617 F.2d 745 (D.C. Cir., 1979), cert.
denied, 476 U.S. 957 (1980).
\7\ Narenji, 476 U.S. at 957.
---------------------------------------------------------------------------
Even if these government initiatives could somehow be construed as
racial or ethnic profiling, that fact would not necessarily make the
practices illegal, unconstitutional, or wrong. U.S. citizens expect law
enforcement to utilize racial or ethnic characteristics in seeking to
apprehend criminal suspects and prevent further crimes. If, for
example, the Ku Klux Klan was engaged in a bombing campaign against
black churches, law enforcement in trying to prevent further bombings
should be permitted to single out for attention all white males driving
in the vicinity of black churches at night.
Racial profiling by the government should be subjected to strict
scrutiny.\8\ It should be permitted where the government has a
compelling governmental purpose, and where there is no less invasive
method of pursuing that compelling purpose. It is hard to imagine a
more compelling purpose for the U.S. government than trying to prevent
further terrorist attacks on its citizens like those of 9/11.
---------------------------------------------------------------------------
\8\ See, e.g., Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 274
(1986).
---------------------------------------------------------------------------
Do these initiatives, as some suggest, put the United States on a
slippery slope to something like the internment of Japanese aliens and
Japanese-Americans during World War II? One of the few, if not the
only, good things to come out of the current war on terror has been the
remembrance and reconsideration of the Japanese Internment, which had
been fading from our collective memories.
Most persons now agree that the Japanese Internment was wrong, but
what exactly was objectionable about it? Two answers are offered.
First, approximately two-thirds of those interned without due process
or any showing of reasonable cause were in fact U.S. citizens. If only
enemy aliens had been detained during wartime, it is unlikely that such
internment would even be remembered, much less remembered as
objectionable.\9\ Second, the Japanese aliens and Japanese-Americans
were treated very differently from their German and Italian
counterparts and from German-Americans and Italian-Americans. The
latter were treated as individuals on a case-by-case basis, whereas the
Japanese and Japanese-Americans within the restricted western United
States were treated as a single group and subjected to internment
solely on the basis of race and ethnicity.
---------------------------------------------------------------------------
\9\ It is acknowledged here that Japanese immigrants were
ineligible at the time to naturalize and become U.S. citizens, but that
does not change the belief that internment of enemy aliens during
wartime would be acceptable to most U.S. citizens, even in hindsight.
---------------------------------------------------------------------------
In comparison to the almost universal condemnation of the Japanese
Internment, there have been almost no complaints about mistreatment of
the other groups. Internment during World War II on a case-by-case
basis of Germans, Italians, and their American citizen descendents is
so unobjectionable that it has been largely forgotten by history. This
is so despite the efforts of many to remember the internment,\10\ and
despite the fact that from the German and Italian communities in the
United States more than 10,000 individuals were interned from each
community.\11\
---------------------------------------------------------------------------
\10\ See, e.g., S. Res. 1356, 107th Cong. (2002) (introducing this
resolution was Senator Russell Feingold, resolving to study the facts
and circumstances surrounding treatment of European Americans and
European refugees during World War II).
\11\ James Kurth, Domestic Security and Muslim Immigrants, J. Hist
Soc'y 409, 414-15 (2002) (writing about the significance of European
Internment during World War II).
---------------------------------------------------------------------------
Can it be concluded that history accepts wartime internment of
suspected individuals as long as they are selected for internment on
the basis of their individual statements and actions, and not on the
basis of arbitrary racial or ethnic characteristics? Even in comparison
to such internment, the initiatives of the U.S. government so far are
pretty ``small potatoes,'' because they have been limited to
individuals charged with specific criminal or immigration law
violations or pursuant to Federal Court warrants.
iii. detention and immigration law enforcement as anti-terror tools
Much criticism has been directed at the U.S. government because of
its arrest and detention of thousands of individuals since 9/11. Some
of these individuals have been charged with criminal law violations.
Some have been arrested and detained on material witness warrants
issued by Federal Courts. But the overwhelming majority of those
arrested and detained have been charged with immigration law
violations, and the majority of those so charged have been brought
before immigration judges who have ordered them deported from the
United States. Is anything wrong here?
It is common for prosecutors to believe individuals guilty of
crimes, but not to have sufficient evidence to prove those charges in
court. So then what do they do? Often they bring lesser charges for
which they do have sufficient evidence. That is why the gangster Al
Capone was never charged with murder, extortion, or bribery. As
dramatized in the movie The Untouchables,\12\ starring Kevin Costner
and Sean Connery, Al Capone was charged, convicted, and imprisoned only
for underpaying his income tax. Is anything wrong with that?
---------------------------------------------------------------------------
\12\ The Untouchables (Paramount Studio 1987).
---------------------------------------------------------------------------
Are immigrants somehow bearing the brunt of the war on terrorism?
The most common ground for deportation is overstaying a temporary, non-
immigrant visa. Even if the federal government does not believe an
illegal alien is involved in terrorism, is there anything wrong with
deporting aliens who overstay or violate the terms of their visas?
Answer: Only if one believes that U.S. immigration laws should not be
enforced.
I always ask my immigration law classes to describe U.S.
immigration policy during the first century of our history as a nation.
After eliciting the correct answer as open borders, I then ask if
anyone believes that such a policy is appropriate for the United States
today. Usually, not a single person can be found to advocate open
borders as U.S. policy today.\13\ The closed borders position, ending
immigration entirely, typically also has no supporters. I then ask the
class what they believe our policy should be.
---------------------------------------------------------------------------
\13\ This is regrettable because classroom dynamics improve when
one or two advocates of open borders are available to articulate that
position in classroom discussion.
---------------------------------------------------------------------------
In the ensuing discussion, what emerges is the description of an
immigration system pretty much like the one the United States actually
has. Most Americans, like most students in my classes, want some
immigration for the economic and cultural benefits it brings, but they
don't want unlimited immigration. Americans typically want the United
States to decide how many and what kind of immigrants to admit each
year, which may be referred to as a ``pick and choose'' system of
limited immigration. The U.S. government should then admit only those
aliens selected by U.S. citizens to be immigrants, and should refuse
entry to all others.
But what should be done with those aliens not selected by the
United States to be immigrants, but who come to the United States
anyway, in violation of U.S. rules? If the answer is to tolerate them
or grant them amnesty, then the United States would not really have a
``pick and choose'' system of limited immigration. What the United
States would have then is open borders, which are just fine if that is
in fact what the citizenry wants.\14\ But it is not what U.S. citizens
want. What U.S. citizens want is to ``pick and choose.''
---------------------------------------------------------------------------
\14\ Prominent advocates of an open borders policy include the Cato
Institute and the Editorial Board of the Wall Street Journal.
---------------------------------------------------------------------------
So there is nothing per se wrong with simply enforcing U.S.
immigration laws regardless of whether those removed are terrorist
suspects or not. Such removals indirectly serve the war on terrorism by
reducing the number of illegal aliens and the resulting culture of
fraudulent documents among whom and in which foreign terrorists can
conceal themselves.
That the U.S. government lacks the resources to remove all of the
estimated ten million illegal aliens from the United States at once
ought not preclude the United States from removing some of them. To the
allegation of selective enforcement, Justice Antonin Scalia has said:
An alien unlawfully in this country has no constitutional right to
assert selective enforcement as a defense against his deportation. . .
. When an alien's continuing presence in this country is in violation
of the immigration laws, the Government does not offend the
Constitution by deporting him for the additional reason that it
believes him to be a member of an organization that supports terrorist
activity.\15\
---------------------------------------------------------------------------
\15\ Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 488,
491-92 (1999).
---------------------------------------------------------------------------
IV. CLOSED HEARINGS
After the 9/11 terrorist attacks, the U.S. DOJ initiated procedures
to conduct closed immigration removal hearings for certain ``special
interest'' aliens charged with immigration law violations, without the
disclosure of information to the public.\16\ Attorney General John
Ashcroft defended withholding the names of those aliens charged with
immigration law violations, while noting their continuing access to
lawyers of their choosing and to their families.\17\ He has noted two
reasons for not providing a list of detainees. The first reason was the
need to withhold valuable intelligence from the enemy, i.e., which of
their agents may have been detained and which remain free.\18\ And the
second reason was a respect for the privacy of the individuals
detained.\19\
---------------------------------------------------------------------------
\16\ William Glaberson, Closed Immigration Hearings Criticized as
Prejudicial, N.Y. Times, Dec. 7, 2001, at B7.
\17\ Neil A. Lewis & Don Van Natta, Jr., Ashcroft Offers Accounting
of 641 Charged or Held, N.Y. Times, Nov. 28, 2001, at A1.
\18\ Id.
\19\ Id.
---------------------------------------------------------------------------
Lawsuits have been filed on behalf of media plaintiffs seeking
access to the closed hearings and to the names of those detained
pending hearing. These lawsuits have resulted in two conflicting
opinions from the U.S. Courts of Appeals for the Sixth Circuit and the
Third Circuit.
In the first case, Detroit Free Press v. Ashcroft,\20\ which was
published August 26, 2002, Judge Damon Keith, writing for a unanimous
three-judge panel of the U.S. Court of Appeals for the Sixth Circuit in
Cincinnati, framed the issue as ``whether the First Amendment to the
U.S. Constitution confers a public right of access to deportation
hearings. If it does, then the government must make a showing to
overcome that right.'' \21\ First, Judge Keith dismissed the
traditional deference of the courts to the political branches in
immigration cases as being limited to areas of ``substantive''
immigration law, and not to issues of procedure.\22\ Second, he found
it appropriate to apply the two-part test of Richmond Newspapers, Inc.
v. Virginia,\23\ in which the Supreme Court concluded that both past
experience and public interest supported finding a First Amendment
right of media plaintiffs to observe judicial proceedings.\24\
---------------------------------------------------------------------------
\20\ Detroit Free Press v. Ashcroft, 303 F.3d 681 (6th Cir. 2002).
\21\ Id. at 682.
\22\ Id. at 682-83.
\23\ Richmond Newspapers v. Virginia, 448 U.S. 555 (1980).
\24\ Detroit Free Press, 303 F.3d at 695-96.
---------------------------------------------------------------------------
The key problem, however, is that deportation proceedings are not
judicial in nature. They are administrative and entirely within the
executive branch of government. Nonetheless, Judge Keith found such
proceedings to be ``quasi-judicial'' in nature, citing with approval
New Jersey Media Group v. Ashcroft.\25\ He therefore held the test of
Richmond Newspapers to be applicable, and rejected the test of Houchins
v. KQED,\26\ where the Supreme Court rejected First Amendment claims of
media plaintiffs to public access to a county jail.\27\
---------------------------------------------------------------------------
\25\ Id. at 696 (citing N. Jersey Media Group v. Ashcroft, 205 F.
Supp. 2d 288, 301 (D. N.J. 2002), rev'd, 308 F.3d 198 (3rd Cir 2002)).
\26\ Houchins v. KQED, 438 U.S. 1 (1978).
\27\ Detroit Free Press, 303 F.3d at 696.
---------------------------------------------------------------------------
Applying the two-part test of Richmond Newspapers, Judge Keith
found both a tradition of public access to deportation proceedings and
a significant public interest in public access to deportation
proceedings to insure fairness and prevent mistakes. Having found a
First Amendment public right of access to deportation hearings, he
turned to the question of whether the government had a sufficient
reason for denial ``necessitated by a compelling governmental interest,
and . . . narrowly tailored to serve that interest.'' \28\ ``Moreover,
[t]he interest is to be articulated along with findings specific enough
that a reviewing court can determine whether the closure order was
properly entered.'' \29\ He concluded that the government's reasons for
closure, though compelling, were not sufficiently particularized or
narrowly tailored.\30\
---------------------------------------------------------------------------
\28\ Id. at 704 (quoting Globe Newspaper v. Super. Ct., 457 U.S.
596, 606-7 (1982)).
\29\ Id. at 705 (quoting Press-Enterprise v. Super. Ct. of Cal.,
478 U.S. 1, 10 (1985)).
\30\ Id. at 707-8.
---------------------------------------------------------------------------
Judge Keith found the government's closure order in special
interest removal hearings both over-inclusive, i.e., too broad and
indiscriminate, and also under-inclusive, i.e., insufficient to prevent
the disclosures of information by the detained aliens, their lawyers,
or their families. Judge Keith affirmed the district court's injunction
prohibiting the closure of deportation proceedings on the basis of the
government's indiscriminate order, but leaving open the possibility of
closing cases on a case-by-case basis upon a proper showing of
compelling and particularized interests.\31\
---------------------------------------------------------------------------
\31\ Id. at 708.
---------------------------------------------------------------------------
Less than three months after the Sixth Circuit's decision in
Detroit Free Press, the U.S. Court of Appeals for the Third Circuit in
Philadelphia published the opinion of Chief Judge Becker who wrote for
the majority of the three-judge panel that heard a similar challenge on
identical facts. Judge Becker's opinion and order in North Jersey Media
Group v. Ashcroft,\32\ which was published on October 8, 2002, reversed
a district court injunction similar to that affirmed by the Sixth
Circuit in Detroit Free Press. A conflict between the circuits was thus
created that may be resolved only by the U.S. Supreme Court, or by one
of the circuits en banc reversing its own panel upon appeal by a losing
party.
---------------------------------------------------------------------------
\32\ N. Jersey Media Group, 308 F.3d at 198.
---------------------------------------------------------------------------
Judge Becker invited the U.S. Supreme Court to re-consider the
applicability of Richmond Newspapers by stating, ``the notion that
Richmond Newspapers applies is open to debate as a theoretical
matter.'' \33\ The Court concluded, however, that ``we must yield to
the prior precedent of this court, and hence will apply it to the
facts.'' \34\ Applying the same two-part test of Richmond Newspapers,
as Judge Keith applied in Detroit Free Press, Judge Becker reached
diametrically opposite conclusions.
---------------------------------------------------------------------------
\33\ Id. at 201.
\34\ Id.
---------------------------------------------------------------------------
On the ``experience'' prong of the Richmond Newspapers test, Judge
Becker found that Congress has never guaranteed public access to
deportation hearings, that such hearings have often been conducted in
locations inaccessible to the public, and were sometimes mandatorily
closed to the public by statute. The opinion concluded that there is no
``unbroken, uncontradicted history'' of openness that Richmond
Newspapers and its progeny require to establish a First Amendment right
of access. The Court also upheld the government's claim that a ``basic
tenet of administrative law is that agencies should be free to fashion
their own rules of procedure.'' \35\
---------------------------------------------------------------------------
\35\ Id. at 216.
---------------------------------------------------------------------------
On the second prong of the Richmond Newspapers test, ``logic'' or
public interest, Judge Becker also disagreed with the Sixth Circuit by
concluding the test requires consideration not only of the positive
policy role openness plays in a particular proceeding, but also the
extent to which openness impairs the public good. On balance, Judge
Becker doubted that openness promotes the public good in this
particular context. Because open deportation hearings do not pass the
two-part Richmond Newspapers test, Judge Becker concluded that the
press and the public possess no First Amendment right of access.
Because of the conflict between the circuit courts of appeal, a
decision will be required from the U.S. Supreme Court. U.S. courts have
long held that immigration law violations are civil, not criminal, in
nature, and that removal from the United States to one's home country
is not criminal punishment.\36\ Thus, aliens in removal proceedings do
not have the rights that a criminal defendant would have. They do not,
for example, have the right to jury trial.\37\ They do not have the
right to invoke the exclusionary rule against improperly seized
evidence.\38\ They do not have the right to legal representation paid
for by the taxpayers.\39\
---------------------------------------------------------------------------
\36\ See Fong Yue Ting v. U.S., 149 U.S. 698 (1893).
\37\ Immig. and Nationality Act of 1952 (INA) Sec. 240(c)(1), 8
U.S.C. Sec. 1229a(c)(1)(2003).
\38\ INS v. Lopez-Mendoza, 468 U.S. 1032, 1046 (1984).
\39\ INA Sec. 240(b)(4), 8 U.S.C. Sec. 1229a(b)(4).
---------------------------------------------------------------------------
And because immigration hearings are clearly administrative,
occurring entirely within the executive branch, and not judicial, the
Supreme Court will have to consider Judge Becker's invitation to rule
the two-prong test for judicial proceedings of Richmond Newspapers
inapplicable. Until 1983, removal hearings were conducted within the
INS itself. In 1983, the Reagan administration decided to designate
Immigration and Naturalization Service (INS) Hearing Officers as
Immigration Judges and place those persons in a branch of the DOJ
separate from the INS. Thus, the agency charging the alien with
removability would no longer also have to rule on the charge. For the
Supreme Court or any court now to rule that this 1983 Act transformed
an administrative proceeding into a judicial proceeding with government
discretion substantially restricted would be another instance of ``no
generous act goes unpunished.'' \40\
---------------------------------------------------------------------------
\40\ Am.-Arab Anti-Discrimination Comm., 525 U.S. at 484.
---------------------------------------------------------------------------
The Court of Appeals for the Sixth Circuit's holding in Detroit
Free Press, to the extent that it relied upon the district court's
opinion in North Jersey Media, which was itself overturned by the Court
of Appeals for the Third Circuit, presents a theory without a firm
foundation.
V. ENEMY COMBATANTS
Another controversial initiative of the U.S. government has been
the detention of U.S. citizens Yaser Hamdi and Jose Padilla as enemy
combatants, without bringing criminal charges or granting them access
to lawyers or courts. The attention of lawyers and civil rights
advocates to this practice is perhaps understandable, yet it is well
established under the laws of war that prisoners of war can be interned
for the duration of the war without rights to lawyers or courts.\41\
Thousands of German and Italian prisoner's of war (POW) were brought to
the United States during World War II without such rights. But what if
one of them happened to be a U.S. citizen?
---------------------------------------------------------------------------
\41\ See Convention (III) Relative to the Treatment of Prisoners of
War art. 21 (Geneva
Convention), Aug. 12, 1949, available at http://www.icrc.org/ihl.nsf/
7c4d08d9b287a42141256739003e636b/6fef854a3517b75ac125641e004a9e68?
OpenDocument.
---------------------------------------------------------------------------
The U.S. Court of Appeals for the Ninth Circuit held in 1946 that
U.S. citizenship made no difference in the status of a POW detained as
such by the U.S. government.\42\ It is true that the government asserts
that Hamdi and Padilla, like other detained enemy combatants, cannot be
considered POWs because they did not operate in recognizable uniforms,
as part of disciplined military units, or on behalf of legitimate
governments. Such a distinction exists in the international law of war
and is not the creation of the Bush administration.\43\ Thus, these
enemy combatants have even fewer rights than POWs, and the Ninth
Circuit's determination that U.S. citizenship makes no difference ought
to apply equally to them.
---------------------------------------------------------------------------
\42\ In re Territo, 156 F.2d 142 (9th Cir. 1946).
\43\ Geneva Convention, supra note 41, art. 4.
---------------------------------------------------------------------------
The Court of Appeals for the Fourth Circuit recently upheld the
continued detention of Yaser Hamdi as an enemy combatant without any
special consideration for his U.S. citizenship by birth, and rejected a
petition for a writ of habeas corpus and an order for the government to
present evidence justifying any detention.\44\ In a thoughtful,
balanced opinion that deserves to be affirmed by the U.S. Supreme
Court, the Fourth Circuit, having dismissed the government's suggestion
that there is no role for the judiciary in a challenge to the exercise
of war powers, concluded that it would hear such challenges for the
purpose of determining whether the government was in fact exercising
constitutionally authorized war powers. Having concluded that it was,
the court found itself ill-equipped to assess facts on the battlefield
and declined to compel the executive branch to defend the particulars
of its exercise of war powers delegated exclusively to the executive
branch by the U.S. Constitution.\45\
---------------------------------------------------------------------------
\44\ Hamdi v. Rumsfeld, 316 F.3d 450, 451 (4th Cir. 2003).
\45\ Id. at 477.
---------------------------------------------------------------------------
While the court of appeals properly limited its holding and
analysis to the facts of the Hamdi case, its opinion should be a
guiding light for other courts considering challenges to the exercise
of war powers to detain enemy combatants.
VI. REFORM LEGAL IMMIGRATION--CHANGE NUMBERS AND CATEGORIES
The United States admits more legal immigrants each year than the
rest of the nations of the world combined. The exact number, which
usually works out to around 800,000 to 900,000 annually, is determined
by a very complicated formula with multiple ceilings and caps embedded
in the Immigration and Nationality Act (INA) as enacted by Congress and
signed by the President.\46\ The overall number depends to a
considerable extent on the number of immediate relatives of U.S.
citizens applying to immigrate. This group is admitted without
numerical limitation, to the possible detriment of other categories.
The complexity of this formula is not in itself particularly
problematic. Those who need to understand it manage to do so. The
problem is in the numbers the formula produces.
---------------------------------------------------------------------------
\46\ INA Sec. Sec. 201-203, 8 U.S.C. Sec. Sec. 1151-53.
---------------------------------------------------------------------------
An ongoing debate among policy makers, advocates, scholars, and
students of immigration is whether the number of legal immigrants the
United States admits each year is too large or too small. There is no
answer and no end to that debate that is conducted at various levels:
empirical, philosophical, and moral. I wish to add to the discussion
only the suggestion that the formula is too rigid, too inflexible, for
a nation experiencing the changes that have occurred since 9/11.
The current formula applies regardless of economic conditions in
the United States, regardless of the level of unemployment or of
economic growth. It also applies regardless of the government's ability
to actually process any particular number of immigrants, and regardless
of whether the government's capabilities are being temporarily or
permanently directed elsewhere. The current formula applies regardless
of whether the United States is at peace with the world or whether it
is at war and searching for terrorists within its boarders to prevent a
recurrence of 9/11.
As an alternative to the current rigid formula set by statute, I
propose that Congress authorize the President, before the start of each
fiscal year, to decide, in consultation with Congress, the appropriate
number of immigrants to admit that fiscal year. The President could
take into consideration economic data, the availability of government
personnel and resources, and the national security needs of the
country. This process would be very similar to that already in place
for determining refugee admissions to the United States from abroad
each year.\47\
---------------------------------------------------------------------------
\47\ See INA Sec. 207, 8 U.S.C. Sec. 1157.
---------------------------------------------------------------------------
This flexibility in setting the overall level of immigration may
prove useful in facilitating and supporting the war on terrorism and
enhancing homeland security. And, as part of a reform of U.S.
immigration laws, the United States should also consider whether the
current categories of immigrants whom it ``picks and chooses'' under
its current system are in fact the ones that the people of the United
States want.
The large majority of legal immigrants to the United States enter
as immediate relatives of U.S. citizens or in other family-sponsored
categories. The remainder are admitted in employment-based categories,
on so-called diversity visas, a.k.a., the green card lottery, and as
refugees from persecution abroad. Because immediate relatives of U.S.
citizens are the only category admitted without numerical limitation,
it is by far the fastest growing group of immigrants. Because the other
family-sponsored categories are numerically limited, there is a waiting
list for admission in most categories that may be as short as several
months or as long as twenty years.
Does it make sense for the United States to admit the largest
portion of its immigrants in family-sponsored categories that do not
consider job skills or prospects, education, or the ability to
contribute to the country? Are those considered immediate relatives
deserving of immediate admission regardless of their numbers?
Immediate relatives are defined as ``the children, spouses, and
parents of a citizen of the United States.'' \48\ In the case of
parents, the sponsoring citizen must be at least twenty-one years
old.\49\ Children are unmarried persons under twenty-one years old.\50\
---------------------------------------------------------------------------
\48\ INA Sec. 201(b)(2)(A), 8 U.S.C. Sec. 1151(b)(2)(A).
\49\ Id.
\50\ INA Sec. 101(b)(1), 8 U.S.C. Sec. 1101(b)(1).
---------------------------------------------------------------------------
It makes sense that U.S. citizens want and need to be immediately
reunited with their spouses and minor children, but does an adult
citizen have a similar need to be reunited with his or her parents in
the United States? Most of those citizens who sponsor parents were
themselves immigrants who made a conscious decision to immigrate and
leave their parents behind. The American family is typically a nuclear
family. Adult Americans live with their spouses and minor children.
Most do not live with their parents. And because of their age, the
parents of citizens are less likely to contribute economically to the
country through work, and more likely to require social services at an
earlier date. The growing share of the statutory number of legal
immigrants taken up by immediate relatives can and should be reduced by
redefining immediate relatives to include only spouses and children of
U.S. citizens.
One way to reduce the number of immigration visas allocated to
other family-sponsored categories is to eliminate the ``fourth
preference'' for brothers and sisters of adult U.S. citizens. Although
the statutory formula allocates around 65,000 visas each year to this
category, the waiting lists in this category are extraordinarily long,
varying from eleven years for most nationalities to more than twenty
years for those from the Philippines.\51\
---------------------------------------------------------------------------
\51\ INA Sec. 203(a)(4), 8 U.S.C. Sec. 1153(a)(4). The U.S.
Department of State issues monthly visa bulletins announcing the dates
of visa applications being currently processed.
---------------------------------------------------------------------------
A third reduction in the existing visa categories can be made by
eliminating the so-called diversity visas, a.k.a., the green card
lottery. Current law allocates 55,000 immigrant visas each year to
those selected from applicants with at least a high school education.
This category was created in stages between 1986 and 1990 to facilitate
more immigration from Europe, thus diversifying the immigration flow
that was becoming increasingly dark-skinned. One immigration scholar
has characterized these visas as ``anti-diversity visas.'' \52\ Persons
born in certain ``high admission states,'' such as Mexico, China,
India, Jamaica, South Korea, and Vietnam, are expressly ineligible to
receive these visas. Other high admission states are allocated reduced
numbers of visas.
---------------------------------------------------------------------------
\52\ Stephen H. Legomsky, Immigration Law and Policy 225
(Foundation Press 1992).
---------------------------------------------------------------------------
Besides being explicitly discriminatory, diversity visas do not
seem to be a logical way to allocate precious immigration visas, i.e.,
without regard to skills, advanced education, or employability.
The employment-based categories of immigrant visas generally
require a complex labor certification process or other similarly
complex requirements. As a result, most of these categories have no
waiting list and the allocated visas often go unclaimed. Those who are
able to jump through all the statutory hoops to prove the requisite
skills and employability, without displacing U.S. citizens or
residents, can enter without waiting.
The United States would be better served by taking the visas
currently going to parents and siblings of adult U.S. citizens, and the
diversity visas, and adding them to the employment-based visas. These
visas should be allocated on a flexible but objective points system
without requiring a burdensome labor certification, similar to the
immigration systems in Canada and Australia.
Points can be awarded for desirable characteristics, such as youth,
health, education, skills, including language skills, work experience,
financial resources, or family sponsors. The cut-off point for
admission each year can be set based on the number of immigrants the
United States chooses to admit. This would simplify the current
immigration system, provide the United States with immigrants better
able to contribute to its economy, and eliminate the discriminatory
diversity visas, all without necessarily changing the number of
immigrants who would otherwise be admitted.
VII. LIMIT THE DURATION OF LEGAL PERMANENT RESIDENT STATUS
Once granted, an immigrant visa, commonly called a green card,
entitles the holder to legal permanent residence as long as certain
disqualifying criminal or terrorist acts are not committed. There is no
requirement that the legal permanent resident ever become a U.S.
citizen or demonstrate any loyalty or gratitude to the United States.
The legal permanent resident can get all the benefits of living and
working in the United States while maintaining citizenship in and
loyalty to another country. Millions of people choose to do this. How
is this in the best interest of the United States?
The United States generally allows legal permanent residents to
apply for citizenship only after five years--three years for spouses of
U.S. citizens.\53\ This allows the alien time to decide if he or she
wishes to become a citizen. It also allows the United States an
opportunity to evaluate the alien's character and eligibility for
citizenship.
---------------------------------------------------------------------------
\53\ INA Sec. 316(a), 8 U.S.C. Sec. 1427(a); INA Sec. 319(a), 8
U.S.C. Sec. 1430(a) (providing the three-year rule for spouses).
---------------------------------------------------------------------------
The United States should consider requiring legal permanent
residents to apply for U.S. citizenship after five years. If they
choose not to do so, they would lose their green cards and right to
permanent residence in the United States. This would reduce the size of
the non-citizen portion of the U.S. population, which though
permanently living among U.S. citizens owes no loyalty to the United
States. This change would encourage and facilitate the assimilation of
immigrants.
VIII. LIMIT DUAL CITIZENSHIP
While dual citizenship may have benefits to the individuals
concerned, it is not so clear that toleration of dual citizenship has
benefits for the United States. Current U.S. law provides for
expatriation by voluntary performance of one of seven specified acts
done ``with the intention of relinquishing U.S. nationality.'' \54\
This reflects U.S. Supreme Court opinions ruling that U.S. citizenship
may be lost only through a voluntary expatriating act done with the
intention to expatriate.\55\
---------------------------------------------------------------------------
\54\ INA Sec. 349, 8 U.S.C. Sec. 1481.
\55\ E.g., Afroyim v. Rusk, 387 U.S. 253 (1967) (holding that
simply voting in a foreign election does not constitute a voluntary
relinquishment of U.S. citizenship); Vance v. Terrazas, 444 U.S. 252
(1980) (holding that when considering whether or not an individual
voluntarily relinquishes his or her citizenship, the evidentiary
standard to be employed is by a preponderance of the evidence).
---------------------------------------------------------------------------
The seven expatriating acts specified in Section 349 of the INA
are, generally, as follows: 1) obtaining naturalization in a foreign
state; 2) taking an oath of allegiance to a foreign state; 3) entering
the armed forces of a foreign state engaged in hostilities against the
United States or as an officer; 4) employment by a foreign state while
a national of such state; 5) formal renunciation before a U.S. Consular
officer; 6) written renunciation in the United States during a state of
war; or 7) any act of treason.\56\
---------------------------------------------------------------------------
\56\ INA Sec. 349, 8 U.S.C. Sec. 1481.
---------------------------------------------------------------------------
Current U.S. policy, however, is very tolerant of dual citizenship
and expressions of loyalty towards another country. The U.S. State
Department has announced that it will presume that U.S. citizens intend
to retain their U.S. citizenship when they obtain naturalization in a
foreign state, take a ``routine'' oath of allegiance to a foreign
state, or accept non-policy level employment with a foreign
government.\57\ Citizenship renunciation contained in naturalization
oaths of other countries are now considered pro forma declarations,
without any intention to give up U.S. citizenship.\58\
---------------------------------------------------------------------------
\57\ See 22 C.F.R. 50.40 (2003); see also 67 Interpreter Releases
1092 (1990).
\58\ H. Ansgar Kelly, Dual Nationality, the Myth of Election, and a
Kinder, Gentler State Department, 23 U. Miami Inter-Am. L. Rev. 421,
446 (1991/1992).
---------------------------------------------------------------------------
The State Department's presumption of intent to retain citizenship
despite potentially expatriating acts seems unnecessarily tolerant.
National security is enhanced by a nation enjoying the exclusive
loyalty of its own citizens. Sometimes dual citizenship is unavoidable
because of the particular laws of another country and without any
action on the part of the individual, but it should not be encouraged.
The United States should not give the benefit of the doubt to actions
that Congress has named by law to be expatriating.
The presumption should be reversed, either by regulation or by
statute. It should be presumed that any of the expatriating acts listed
in INA Section 351, including naturalization in a foreign state, are
committed with the intention to expatriate, with the burden on the
individual to prove otherwise.
IX. REQUIRE VISAS OF ALL FOREIGN VISITORS, ENDING VISA WAIVERS
Prior to 1986, the United States required that nearly all aliens,
except Canadians and certain Mexicans, wishing to enter the United
States to first obtain visas from a U.S. Consulate. Aliens apply for
visitor visas to the United States by submitting applications with
their passports to a U.S. Consulate. This gives the Consulate an
opportunity to inspect the passport to insure that it is not
counterfeit and has not been stolen. The Consulate also has an
opportunity to investigate the applicant and may require a personal
interview. These visitor visa applications may be denied for a variety
of reasons, including reasonable grounds to believe the alien seeks to
enter the United States to engage in any unlawful activity.\59\
Production of U.S. visas was routinely required of aliens to obtain
boarding passes for aircraft bound for the United States.
---------------------------------------------------------------------------
\59\ INA Sec. 212(a)(3)(A), 8 U.S.C. Sec. 1182 (a)(3)(A)(amended
2002).
---------------------------------------------------------------------------
But in 1986, Congress enacted the visa waiver program, which
authorized the entry of visitors from certain countries, which were
mainly European, with a low nonimmigrant visa refusal rate.\60\ Persons
with passports from any of these now twenty-eight countries may board
airplanes bound for the United States merely by purchasing tickets and
showing their passports.\61\ This reform was intended to facilitate the
entry of foreign tourists and businesspersons into the United States,
and to relieve U.S. Consulates of the considerable paperwork and cost
surrounding the issuance of visitor visas to citizens of these
countries.
---------------------------------------------------------------------------
\60\ INA Sec. 217. This program was initially described as a
``pilot project'' but was made permanent by Congress in October of
2000.
\61\ The number of countries was twenty-nine until Argentina was
removed from the list in 2002. See Implications of Transnational
Terrorism for the Visa Waver Program: Hearing Before the Subcommittee
on Immigration and Claims of the Comm. on the Judiciary, 102nd Cong. 8-
14 (2002) (statement of Peter M. Becraft, INS Deputy Commissioner).
---------------------------------------------------------------------------
It is now known that a visa waiver allowed the entry, without a
visa, of Zacarias Moussaoui, a French citizen of Moroccan descent who
is believed to have been the ``twentieth hijacker'' and who has been
charged with conspiracy to commit the murders of 9/11. It is also known
that Richard Reid, the so-called ``shoe bomber,'' as a British citizen
and passport holder was able, because of the visa waiver program, to
board an airplane headed for the United States without having to apply
for or acquire a U.S. visa. It has also been reported that Ramzi Yousef
and at least one other conspirator used false visa waiver passports to
travel to the United States in furtherance of the 1993 World Trade
Center bombing.\62\ Does the United States need more proof than that of
the continuing threat to U.S. national security resulting from the visa
waiver program?
---------------------------------------------------------------------------
\62\ Id.
---------------------------------------------------------------------------
It is also now known that all of the 9/11 hijackers spent time in
Western Europe and that Western Europe, as much as the Middle East, is
a source of Al-Qaida terrorism directed at the United States. In
addition, thousands of blank Belgian and Italian passports have
disappeared or been stolen from government offices, which might be
doctored to facilitate entry to the United States via the visa waiver
program.\63\
---------------------------------------------------------------------------
\63\ For a frightening analysis of this problem see Jeff Goodell,
How to Fake a Passport, N.Y. Times magazine, Feb. 10, 2002, Sec. 6, at
44.
---------------------------------------------------------------------------
Regardless, on February 28, 2002, the President and CEO of the
Travel Industry Association of America testified before the Immigration
Subcommittee of the House Judiciary Committee, stating:
In a post-9/11 world, the Visa Waiver Program is just as important
as ever, and the rationale that underlies its creation and existence is
as sound as ever. . . . The Visa Waiver Program should be embraced by
Congress and the Administration as part of our overall homeland
security program, and should be viewed as a means of strengthening both
our national security and economic security.\64\
---------------------------------------------------------------------------
\64\ Implications of Transnational Terrorism for the Visa Waver
Program: Hearing Before the Subcommittee on Immigration and Claims of
the Comm. on the Judiciary, 102nd Cong. 23 (2002) (statement of William
S. Norman, President and CEO, Travel Industry Association of America).
---------------------------------------------------------------------------
The Deputy Commissioner of the INS agreed, stating, ``eliminating
the program will not eliminate the ability of terrorists to enter the
United States.'' \65\
---------------------------------------------------------------------------
\65\ Id. at 14.
---------------------------------------------------------------------------
Isn't that the wrong question? Of course eliminating visa waivers
cannot eliminate the ability of terrorists to enter the United States,
but will ending visa waivers to any significant extent reduce the
ability of terrorists to enter the United States? Isn't that the right
question to ask? And if the answer is yes, shouldn't Congress and the
Administration end the visa waiver program immediately and restore the
visa requirement for foreign visitors notwithstanding the lobbying of
the travel industry?
The repeal of visa waivers will impose a significant burden on U.S.
Consulates to screen visa applicants. In the 2001 fiscal year, the
number of foreign arrivals under the visa waiver program was seventeen
million, but the burden of screening visa applicants assumed by U.S.
Consulates will directly enhance U.S. national security.\66\ And the
additional cost can be offset by the common international practice of
assessing a fee for visa processing. There is also the possibility of
retaliation by former visa waiver countries, which may choose to begin
requiring visas of U.S. visitors. But each country's visa policy is
determined by that country's perceived national interest, and it should
be recalled that before 1986 most Western European countries did not
require visas of U.S. visitors even though the United States required
visas of European visitors.
---------------------------------------------------------------------------
\66\ Id. at 12.
---------------------------------------------------------------------------
As a Belgian police official stated to an American journalist
regarding the problem of missing or stolen Belgian passports,
``Strictly speaking, . . . Belgium does not have a problem with
terrorism. You have a problem with terrorism.'' \67\
---------------------------------------------------------------------------
\67\ See Goodell, supra note 63 (emphasis added).
---------------------------------------------------------------------------
X. END ADJUSTMENT OF STATUS
U.S. visas for immigration and permanent residence are only
available from U.S. consular officials serving outside of the United
States. So what should an alien do who is eligible for an immigration
visa but who is already in the United States on a temporary non-
resident visa as a tourist, perhaps, or a student? For many years the
answer was that he or she must return to his or her home country and
obtain an immigrant visa from the U.S. Consulate there.
Because of the expense and burden of such a return to one's home
country, in 1935 the INS began the practice of allowing aliens to
complete paperwork in the United States and then proceed to a U.S.
Consulate in Canada to obtain a pre-arranged immigrant visa.\68\ And
because the trip to Canada seemed entirely pro forma, in 1952 Congress
authorized the ``adjustment of status'' by eligible immigrants to be
completed entirely within the United States.\69\
---------------------------------------------------------------------------
\68\ 8 C.F.R. Sec. 245 (2003).
\69\ INA Sec. 245, 8 U.S.C. Sec. 1255 (2000).
---------------------------------------------------------------------------
Statutory adjustment of status is no doubt beneficial to those
immigrants who make use of it. But is it also beneficial to the United
States? Allowing the adjustment of status in the United States
precludes a reconsideration of the alien's admissibility by a U.S.
consular officer in the alien's country of origin. This officer may be
better able to assess admissibility than an immigration officer in the
United States because consular officers presumably have a better
knowledge of country conditions and access to better intelligence from
local sources in-country.
Additionally, returning to one's home country to apply for an
immigration visa is no longer the practical or financial burden it was
in 1935 or 1952. In the context of a war on terrorism, the United
States should obtain the best possible security assessment before
granting an immigration visa authorizing permanent residence and
eventual citizenship. That assessment can only be made by a consular
officer in-country. A balancing of the benefits to U.S. national
security and the burdens to the alien of returning home to obtain the
immigrant visa strongly favors the repeal of the adjustment of status
statute.
XI. MOVE EOIR AND CONSULAR AFFAIRS TO THE DEPARTMENT OF HOMELAND
SECURITY
I was not originally a supporter of reorganizing the INS. I felt
that the problems at the INS were not organizational but due primarily
to over-tasking, under-funding, and under-staffing.\70\ But I concluded
that if a reorganization was politically unavoidable, consolidation of
the INS with other border security agencies, such as Customs and the
Coast Guard, in a cabinet-level department dedicated to border
security, as has happened, was the least bad alternative and had some
benefits. One of those benefits ought to be better coordination among
all the Federal agencies and personnel whose mission includes border
and homeland security.
---------------------------------------------------------------------------
\70\ See Jan Ting, Too Much Work for Too Few, Phila. Inquirer, Apr.
29, 2002, at A11.
---------------------------------------------------------------------------
The emergence of the new Department of Homeland Security (DHS) on
March 1, 2003, consolidated 177,000 government employees from twenty-
two different agencies, and it seems clear that the transition to a new
department will not be easy.\71\ Still, at least two pieces of the
border and homeland security infrastructure are missing, the Bureau of
Consular Affairs (BCA), which remains at the Department of State, and
the Executive Office for Immigration Review (EOIR), which remains at
the DOJ.
---------------------------------------------------------------------------
\71\ See Tim Weiner, Along Borders, Tension and Uncertainty
Prevail, N.Y. Times, Mar. 1, 2003, at A10.
---------------------------------------------------------------------------
The State Department's BCA is the agency that actually issues non-
immigrant and immigrant visas to aliens wishing to visit or immigrate
to the United States. It is the agency that issued visas to the
nineteen hijackers who attacked the United States on 9/11. In a
consolidation of all the agencies concerned with border security,
including the Coast Guard, Customs, the INS and its Border Patrol, and
even the Agriculture Department's border inspectors, it is puzzling to
see the BCA escape consolidation into the new DHS.
The issuance of visas has never been the prestige work of the
Department of State. Consular work has never been seen as the pathway
to an Ambassadorship, and has been regarded in the Department of State
as a rite of passage for junior Foreign Service Officers and a safe
place for senior officers to work, who, for whatever reason, are not
assigned more meaningful diplomatic assignments. The BCA has responded
to both external and internal pressures to issue visas quickly to
facilitate entry of alien visitors into the United States. The BCA has
declared the foreign visa applicant as the customer, rather than the
American people.\72\
---------------------------------------------------------------------------
\72\ See Nikolai Wenzel, America's Other Border Patrol: The State
Department's Consular Corps and Its Role in U.S. Immigration, Center
for Immigration Studies, Aug. 2000, available at http://www.cis.org/
articles/2000/back800.html.
---------------------------------------------------------------------------
Both the original Bush Administration proposal and the final
legislative enactment for the new department lack clarity on exactly
which department will control visa policy, though the BCA itself
remains part of the State Department. The State Department has long
maintained that visa policy needs to be subordinated to the larger
diplomatic policies of the department. If transferred to the DHS, it
may reasonably be assumed that visa policy will be subordinated to the
national security interests of the United States. That seems
preferable.
The other missing piece from the new DHS is the EOIR, which remains
at the DOJ. Prior to 1983, when the INS charged an alien with
deportability, a hearing would be conducted before an INS Special
Inquiry Officer who was authorized by law to order the alien's removal
from the United States, with administrative appeal only to the Attorney
General and judicial appeal only to the U.S. circuit courts of appeal.
Because of the impracticality of the Attorney General's personally
considering immigration appeals, a Board of Immigration Appeals (BIA)
was created by regulation to rule on appeals on behalf of the Attorney
General.\73\
---------------------------------------------------------------------------
\73\ INA Sec. Sec. 274B-C, 8 U.S.C. Sec. 1324 (2000).
---------------------------------------------------------------------------
Because of real and perceived problems in the subordination of the
Special Inquiry Officers to the INS, in 1983 the DOJ promulgated
regulations creating the EOIR to which the Special Inquiry Officers,
now designated Immigration Judges, were transferred along with the BIA.
The EOIR remained a part of the DOJ under the Attorney General. The
Attorney General's authority over both the INS and the EOIR insured
that there would never be two conflicting voices from the Federal
government on U.S. immigration policy. Any serious policy dispute
between the INS and the EOIR could be quickly settled by the Attorney
General or his designate.
But with the INS functions transferred to the DHS and the EOIR
remaining at the DOJ, the potential for conflicting voices on
immigration policy is increased. Presumably, a policy dispute between
the immigration bureaus of the DHS and the EOIR could now be resolved
only at the cabinet level. This is not a satisfactory method of
insuring uniform U.S. immigration policy, however well the current
Secretary of the DHS and the current Attorney General get along. The
potential difficulty can and should be avoided by moving EOIR to the
same department where the immigration powers of the INS now reside.
XII. CONCLUSION
History reassures us that the emergency measures enacted by our
government during previous wars, even Lincoln's suspension of habeas
corpus during the Civil War, have had no lasting effects on American
society once the war was won and peace restored. Indeed, our
sensitivity over civil liberties is greater now than it has ever been
in our history. The liberty U.S. citizens should be most concerned
about right now is the right of all Americans, and non-Americans, too,
to live in peace, free of the threat of terrorism. Defense of that
civil liberty is what this war is all about. But if this war against
terrorism is lost, no person's civil liberties will survive.
Accordingly, U.S. national indecisiveness over immigration policy
must end. Immigration law must finally be recognized for what it has
always been, an instrument of national security policy.
Mr. Hostettler. Thank you, Professor.
Dr. Camarota?
STATEMENT OF STEVEN A. CAMAROTA, PH.D., DIRECTOR OF RESEARCH,
CENTER FOR IMMIGRATION STUDIES
Mr. Camarota. Mr. Chairman and Members of the Subcommittee,
thank you for inviting me to testify on the visa lottery. As
you pointed out, my name is Steven Camarota, and I am director
of research at the Center for Immigration Studies.
I would like to discuss what I see as five major problems.
Jan had three, but I actually have five major problems with the
lottery.
The first problem is that it has to be administered in the
first place. Each entry has to be processed, and this creates a
very significant administrative burden. Moreover, then the
winners of the lottery have to be vetted by the State
Department and the Department of Homeland Security. Processing
millions of entries and then tens of thousands of thousands of
additional green cards this year that would not otherwise have
to be processed creates a significant burden for the Department
of State and DHS, two organizations that are already
overwhelmed by the number of applicants in other categories.
Trying to weed out fraudulent lottery applications and even
processing legitimate ones is a diversion for agencies that
must identify terrorists among the millions seeking to come to
the United States in other categories. It is no surprise that
an internal audit conducted by the State Department in the
1990's characterized the lottery as an unfunded mandate that
saps personnel resources.
A second problem is that, in addition to creating
administrative burdens, the lottery itself encourages illegal
immigration. Now, consider the case of Hesham Hedayet, who, as
we know, murdered two people at LAX in 2002. Hedayet had
overstayed his tourist visa in 1992 and lived in the United
States as an illegal alien and even after his asylum
application was denied in 1996. During his years as an illegal
alien, it turns out, his wife continued to play the lottery
with the hope of eventually being able to stay permanently,
which she eventually did win. This allowed her and her husband
to get a green card.
The fact is that the very existence of the lottery gave the
Hedayets a realistic hope of staying if they just played long
enough because they really had no other choice. They had no
family here. They had no specialized skills, and of course they
did not qualify for asylum. If it had not been for the lottery,
Hedayet and his family may well have given up, gone home. The
lottery's very existence tells illegal aliens that they should
not go home because some day they just might win too.
A third problem with the lottery is that corruption and
fraud are very widespread in the countries that send the most
lottery applicants. Two of the most corrupt Nations on earth,
according to Transparency International Index, are Bangladesh
and Nigeria, two countries perennially among the top 10 lottery
winners. State Department records from 1996--unfortunately, I
was not able to get more recent numbers--show that lottery
winners are much more likely than other applicants to be
refused due to fraud. Among the top 10 Nations in the lottery
of that year, the following refusal rates for fraud: 24 percent
for Poland, 44 percent for Bangladesh, 46 percent for Egypt, 62
percent for Ghana and a whopping 80 percent for Nigeria.
The general prevalence of fraud in these countries is bad
enough, but the lottery itself encourages fraud. It invites
applications from people with no relatives or ties to an
American institution, such as an employer who could at least
vouch for the veracity of the applicant.
The problem of fraud also of course relates to terrorism.
Ordinary fraud is bad enough, but after 9/11 immigration fraud
of any kind is a national security nightmare. We must remember
that the lottery does not draw people randomly from around the
globe. About one-third of winners come from countries that were
part of the special registration system for temporary visitors
set up by the DHS after the September 11th attacks. All
observers agree that these countries are of special concern in
the war against terrorism. And as we have already stated,
several lottery winners have been involved in terrorism.
The lottery is so ideal for terrorists because it
encourages immigration and applications from people with no
existing tie to the United States, who come from parts of the
world where fraud is common, where documents are difficult to
verify and, most importantly, al-Qaeda is very active.
Now, of course, there's other ways to get in, but we must
remember that the green card is really the Holy Grail for the
terrorists because it allows them to work at any job they want,
to enter and leave the United States, to get a hazardous
materials license and so on. Thus, a green card, if somebody
were going to design the ideal visa category for terrorists,
the lottery would be it.
But if all of this wasn't bad enough, the fact is the
lottery doesn't even serve any purpose. Maybe these risks would
be worth it if we could find some reason for it. There's no
humanitarian reason for it. Unlike employment-based
immigration, it does not select people based on their skills
nor does it unite families. And even despite its official name,
the Diversity Lottery, it doesn't even have a significant
effect on the actual diversity of legal immigration. Since its
inception, there hasn't been a fundamental change in the top
countries sending immigrants to the United States. They are the
same countries basically year after year, and they account for
roughly the same share.
Put simply, the lottery does not increase diversity, serve
any economic need, it doesn't promote humanitarian goals or
help unite families. Instead, it creates a huge administrative
burden for the immigration system, encourages illegal
immigration, invites fraud and makes it easier for terrorists
to enter. Surely, the Nation can do without such a program.
Thank you.
[The prepared statement of Mr. Camarota follows:]
Prepared Statement of Steven A. Camarota
The visa lottery is probably the strangest part of our immigration
system. We actually run a system where people send in a postcard, which
is now done electrically, and then names are drawn out of a hat, with
50,000 winners each year given premanent residence in the United
States. The winners need not have even one family member in the United
States, or any particular job skill that is supposed to be in need, nor
is any compelling humanitarian reason required. All they need is the
desire to come and some luck. There are many problems with the such a
system, but five stand out: 1) it is administratively burdensome; 2) it
encourages illegal immigration; 3) it invites fraud; 4) it creates a
great opportunity for terrorists; 5) it serves no purpose.
ADMINISTRATIVE BURDEN
One of the biggest problems with the lottery is that it has to be
administered. Each entry has to be processed to ensure that the
application meets the lottery's minimal standards. These names have to
be recorded so that the winners can be randomly selected. Finally, the
winners have to be vetted by the State Department and Department of
Homeland Security (DHS). Processing millions of entries, and then tens
of thousands of additional green cards each year that would otherwise
not have to be processed, creates a significant burden for the State
Department and DHS--two organizations that are already overwhelmed by
the number of applicants in other immigration categories. Trying to
weed out fraudulent lottery applications, and even processing
legitimate ones, is a diversion for agencies that must identify
terrorists among the millions seeking to come to America. It is no
surprise that an internal audit conducted by the State Department in
the 1990s characterized the visa lottery as a costly, unfunded mandate
that saps personnel resources.
ENCOURAGES ILLEGAL IMMIGRATION
In addition to creating administrative burdens, the lottery
encourages illegal immigration. Consider the case of Hesham Mohamed
Hedayet, who murdered Victoria Hen and Yaakov Aminov at Los Angeles
International Airport on July 4 of 2002. Mr. Hedayet overstayed a
tourist visa in 1992 and before his tourist visa expired, he applied
for asylum and then continued to live in the United States for a number
of years as an illegal alien after his visa expired. Even after his
asylum application was turned down in 1996, Mr. Hedayet stay and live
here as an illegal alien.
His wife continued to play the visa lottery with the hope that they
would eventually be able to win a visa, which she eventually won,
allowing her, her husband, and children to get a green card. The
existence of the lottery gave the Hedayets a realistic hope of
eventually getting a green card, if they just played it long enough.
They really had no other choice, because they had no family member who
could sponsor them or any specialized skills allowing them to qualify
for employment-based immigration and, of course, Hedayet did not
qualify for asylum. If it had not been for the lottery, Hedayet and his
family might have given up and gone home. The lottery gives hope to
countless other illegal aliens that one day they too will win the
lottery and be able to stay in this country. The lottery's very
existence tells hundreds of thousand of other people living here
illegally, who have no realistic means of every getting a green card,
that they should not go home because one day they too may win the visa
lottery, if they play it long enough.
RAMPANT FRAUD
One of the things that makes the lottery so difficult to administer
is that corruption and fraud are so widespread in the countries that
send in the most applications for the lottery. The two most corrupt
nations in the world, according to Transparency International's
Corruption Perceptions Index 2003 \1\, Bangladesh and Nigeria, are also
perennially among the top-10 lottery winners. State Department records
from 1996 (we can't get more recent ones) show that lottery winners are
even more likely than other immigration applicants to be refused a visa
due to fraud. Among the top-10 nations in this year's lottery,
diversity visa refusal rates from 1996 (the most recent year available)
were as follows: Poland 24 percent, Ethiopia 38 percent, Bangladesh 44
percent, Egypt 46 percent, Ghana 62 percent. The country with the
largest number of lottery winners, Nigeria, had a astonishing refusal
rate of 80 percent. And these rates would be higher but for the State
Department's laxity with regard to fraud in the visa process.
---------------------------------------------------------------------------
\1\ The index can be found at www.transparency.org/cpi/2003/
cpi2003.en.html.
---------------------------------------------------------------------------
The general prevalence of fraud in these countries is bad enough,
but the lottery itself encourages fraud. It invites applications from
almost anyone, especially those with no relatives or ties to an
American institution, such as an employer in the United States who can
at least vouch for the applicant. Moreover, there is strong anecdotal
evidence that many people send in more than one application using
different names in an effort to increase their chances of winning. It
is partly for this reason that so many ``winning'' entries are
eventually thrown out. The whole process makes a mockery of attempts to
apply even the most minimal of requirements.
CREATES AN OPPORTUNITY FOR TERRORISTS
Ordinary fraud is bad enough, but after 9/11, immigration fraud of
any kind poses a dire security threat. We must remember that the
lottery does not draw people randomly from around the globe. Winners
come disproportionately from countries that were part of the special
registration system for temporary visitors set up by DHS after the
September 11th attacks. All observers agree that these countries are of
special concern in the war against Islamic extremism. And about a third
of winners come from those countries.
Several lottery winners have already been involved in terrorism in
the United States. Michigan sleeper cell member Karim Koubriti,
convicted this summer on terrorism-related charges, was a lottery
winner from Morocco, as was Ahmed Hannan, who was acquitted of
terrorism charges in the same trial but convicted of document fraud.
The most notorious lottery winner is, of course, Hesham Mohamed
Hedayet.
The lottery is ideal for terrorists because it encourages
immigration from those parts of the world were both fraud is common,
document are difficult to verify and al Qaeda is very active. Moreover,
it allows people into the country with no family or other significant
connections to the United States. Again, this is tailor-made for
someone wishing to attack our country. While there are other ways to
enter the country, a green card is far more valuable to terrorists than
temporary visa such those for tourists or students. A green card lets a
person stay in the country indefinitely and this gives terrorists the
time they may need to plan a sophisticated plot. Moreover, permanent
residency allows the recipient to work at almost any job they like, get
a licence to handle hazardous material, and to travel to and from the
United States as often as they please. If one were to set out to design
a visa that was ideal for terrorists, the visa lottery system would be
it.
SERVES NO PURPOSE
The visa lottery might be worth all the problems and risks it
creates if it met some need. But it does not. There is no humanitarian
reason to admit people based on luck. Unlike employment-based
immigration, the lottery does not make any attempt to select people
based on whether they have some special or much-needed job skill. Nor
does it reunite families as is the intent with family-based
immigration.
Despite its official name, the Diversity Lottery does not even have
a significant effect on the actual diversity of legal immigration. In
FY 2002, the top-10 immigrant-sending countries were the source of more
than half of that year's total legal immigration. This is almost
exactly the same percentage as 10 years earlier, before the lottery was
put in place. In fact, the nation's total immigrant population (legal
and illegal) has actually become less diverse during the course of the
lottery. A recent analysis of Census data by the Center for Immigration
Studies found that from 1990 to 2000, Mexicans went from 22 percent of
all immigrants to 30 percent, while immigrants from all of Spanish-
speaking Latin America combined went from 37 to 46 percent of the total
foreign-born population. Truly diversifying immigration would entail
one of two things: huge reductions in immigration from Mexico, or huge
increases in immigration from everywhere else. The lottery simply
cannot do even what it purports to.
CONCLUSION
If it can be said that anything good may have come from the
atrocities of 9/11, it is that many Americans have come to realize that
immigration is not simply a matter of economics or something to think
about only in romantic and nostalgic terms. No longer can quaint
stories of one's immigrant grandmother be a substitute for intelligent
discourse on one of the most important issues confronting the country.
Failures in our immigration system result mostly from a lack of
resources and ill-conceived immigration programs. The visa lottery is
clearly one of those programs. The lottery does not increase diversity,
serve any economic need, promote humanitarian goals, or help families
reunite. It creates a huge burden for the immigration system,
encourages illegal immigration, invites fraud, and makes it easier for
terrorists to enter. Surely the nation can do without such a program.
Mr. Hostettler. Thank you, Dr. Camarota.
The chair now recognizes Mr. Nyaga for 5 minutes.
STATEMENT OF CHARLES NYAGA, MARIETTA, GA
Mr. Nyaga. Mr. Chairman and the distinguished Members of
the Subcommittee, my name is Charles Nyaga. I am from Marietta,
Georgia. I also would like to introduce and acknowledge my
attorney, Charles Kuck, who is here with me today. He
represents me on this issue and has helped me to understand
what has happened to me and my family and is advising me on the
next steps to take.
I am honored to be here today to discuss my very trying
experiences with the Diversity Visa Program. I come before you
today in hopes that you will help resolve my case and ensure
that others will not have to go through the same experiences
that I and my family are going through. While I understand that
there have been problems in the past with the Diversity Visa
Program and that some of these problems continue today, I am
here to point out that the program also provides great benefits
to potential immigrants such as myself.
My own experience with the Diversity Visa Lottery Program
started with great excitement when my single application was
selected. However, despite having been notified by the
Government that I had been selected as a winner in the
Diversity Visa Program and, moreover, having done everything
the Government asked me to do, I now find myself and my family
facing deportation because of the Government's failures in
carrying forward this program.
I am a native of Kenya, and I came to the U.S. with my
family as a student in 1996. I am currently pursuing a master's
degree in divinity, and am an elder at Southminster
Presbyterian Church. I have served as an elder in the Church's
stated session, as an elder commissioner to the Church
Presbytery meetings, as chair of Church Missions and Service,
Buildings and Grounds Maintenance and Worship Committees.
In 1997, I applied one time for the fiscal year 1998
Diversity Visa Program. After my selection as a winner by the
Department of State, and in accordance with the Diversity Visa
requirements, I submitted my fee to adjust my status to legal
permanent resident and completed my application by February
1998. However, the Immigration Service failed to complete the
processing as mandated.
The Immigration Service's receipt notice of my permanent
resident application provided the following instructions, and I
quote: ``While your application is pending before the
interview, please do not make an inquiry as to the status of
your case since it will result in further delay.'' The
Immigration Service told me in this receipt that it would take
3 years to process my permanent resident application and that I
should not follow up with them until 3 years had passed. I,
accordingly, never made inquiry and unfortunately never heard
anything from the Agency. At the end of the fiscal year, my
petition expired, although a sufficient number of diversity
visas remained available. I suspect that massive casework
overloads at the Immigration Service prevented my paperwork
from being processed within deadlines.
I know of a few others who are in the same situation I am
in because of Government inaction. We all followed the rules,
but nonetheless face deportation: a Swiss national who was in
the U.S. as an investor prior to being selected as a winner
under the Diversity Visa Lottery Program, who has had to sell
his business because the Immigration Service did not process
his green card in time; a South African airline pilot whose
application for permanent residence was not timely adjudicated
ended up losing his employment because of this failure; and a
Russian whose wife is a lawful permanent resident will now have
to wait back in Russia for the next several years while she
awaits her naturalization to be approved. All of these
individuals and others have been victimized by the inaction of
the Immigration Service and erroneous and incomplete
instructions of the Department of State who notifies the
winners.
I am fortunate that my family and I have not had to face
this situation alone. Members of my church have stood by me in
the very trying moments. I want to take this opportunity to
publicly thank them from the bottom of my heart. I also would
like to submit, for the record, these letters from my church
and others which support my case.
I am also very grateful to Senator Saxby Chambliss, the
chair of the Senate Subcommittee on Immigration, Border
Security and Citizenship, for introducing legislation No. S.
2089 that will address my situation. This targeted legislation
will provide welcome relief to people like myself and my family
and others who, during fiscal years 1998 through 2003, were
unable to obtain permanent residence under the Diversity Visa
Program because the fiscal year ended before their cases were
approved. The bill authorizes such individuals to reopen their
cases and continue processing as long as the Diversity Visas
for the fiscal year in which they filed remain available.
I am very excited to see the positive efforts of Senator
Chambliss and the other Members of the Senate who support those
persons such as myself who have been deprived of legal benefit
of permanent residence by the inaction of the former
Immigration Service. I hope the Senate will move quickly on
this legislation. I also hope that Members of the House of
Representatives will quickly introduce and pass this worthy
legislation.
Law-abiding people who follow the rules pay the required
fees and rely on the Government's procedures should not be
punished because of Government inaction.
Thank you again for allowing me to testify.
[The prepared statement of Mr. Nyaga follows:]
Prepared Statement of Charles Nyaga
Mr. Chairman and distinguished Members of the Subcommittee, my name
is Charles Nyaga. I am from Marietta, Georgia. I also would like to
introduce and acknowledge my attorney, Charles Kuck, who is here with
me today. He represents me on this issue, has helped me to understand
what has happened to my family and me, and is advising me on the next
steps.
I am honored to be here today to discuss my very trying experiences
with the Diversity Visa Program. I come before you in hopes that you
will help resolve my case and ensure that others do not have to go
through the same experiences that my family and I are going through.
While I understand that there have been problems in the past with the
Diversity Visa Program, and that some of those problems continue today,
I am here to point out that the program also provides great benefits to
potential immigrants such as myself.
My own experience with the Diversity Visa Lottery program started
with great excitement when my single application was selected. However,
despite having been notified by the government that I had been selected
as a ``winner'' in the Diversity Visa Program, and moreover having done
everything the government asked of me to do, I now found my family and
myself facing deportation because of the government's failures in
carrying forward this program.
I am a native of Kenya and legally came to the U.S. with my family
as a student in 1996. I currently am pursuing a master's degree in
divinity, and am an elder at Southminster Presbyterian Church. I have
served as an Elder in the Church's stated session, as an Elder
Commissioner to Church Presbytery Meetings, and as Chair of Church
Missions and Service, Buildings and Grounds Maintenance and Worship
Committees
In 1997, I applied once for the FY 1998 Diversity Visa program.
After my selection as a ``winner'' by the Department of State, and in
accordance with the Diversity Visa requirements, I submitted my fee to
adjust my status to legal permanent resident, and completed my
application by February 1998. However, the Immigration and
Naturalization Service (INS) failed to complete the processing as
mandated.
The Immigration Service's receipt notice of my permanent resident
application provided the following instruction: ``While your
application is pending before the interview, please DO NOT make inquiry
as to the status of your case, since it will result in further delay.''
The Immigration Service told me in this receipt that it would take
three years to process my permanent resident application, and that I
should not follow up with them until three years had passed. What I did
not understand, nor was it properly explained to me as a ``winner'' of
the diversity visa program, was that 100,000 winners are typically
chosen, yet only 50,000 people (and many times far less) are given
permanent residence. During the eight months that INS had to review my
application in fiscal year 1998, I accordingly never made inquiry, and
unfortunately never heard anything from the agency. At the end of the
fiscal year, my application expired, although a sufficient number of
diversity visas remained available. I suspect that massive casework
overloads at the Immigration Service prevented my paperwork from being
processed within deadlines.
Let me step back a moment. Individuals like me who win the DV visa
lottery program are provided a number, and when our number becomes
current, are eligible to apply for permanent residence. However, the
law presently requires that applicants not only file their applications
in a timely manner, but also be approved during the fiscal year in
which they file. If approval is delayed for any reason, including
administrative backlogs, the person loses the opportunity to benefit
from the program.
I know of a few others who are in the same situation I am in
because of government inaction. We all followed the rules, but
nonetheless face deportation: a Swiss national who was in the U.S. as
an investor prior to being selected as a winner under the Diversity
Visa Lottery program, who has had to sell his business because the
Immigration Service did not process his green card in time; a South
African airline pilot whose application for permanent residence was not
timely adjudicated, who ended up losing his employment because of this
failure of timely processing; and a Russian national whose wife is a
Lawful Permanent Resident. He will now have to wait back in Russia for
the next several years while she awaits her naturalization to be
approved. All of these individuals, and countless hundreds and perhaps
thousands more, have been victimized by the inaction of the Immigration
Service, and erroneous and incomplete instructions of the Department of
State who notify the ``winners.''
Thus, people who have done everything our government requires of us
to do, through no fault of our own, ultimately are unable to become
permanent residents under the DV Program.
Now, because of government inaction, my family and I face
deportation from the U.S.
Since I did not believe what happened was fair, my wife and I took
our case to the Northern District Court of Georgia, where the District
Court Judge granted our request for adjustment of status and ordered
the Immigration Service to process my application for permanent
residence outside of the parameters of the timeframe dictated by the
statute. However, the government appealed in an effort to support their
own failure to timely adjudicate applications. Unfortunately, the
Eleventh Circuit Court of Appeals reversed the District Court, finding
that the Immigration Service lacked authority to act on my application
after the end of the fiscal year, regardless of the merits of my case.
The court even went so far as to note that a private relief bill is the
remedy that would overcome the statutory barrier that prohibits the INS
from reviewing a case filed in a prior fiscal year. The U.S. Supreme
Court recently declined certiorari in my case.
I am fortunate that my family and I have not had to face this
situation alone. Members of my church have stood by me in every way
possible. I want to take this opportunity to publicly thank them from
the bottom of my heart.
I also am very grateful to Senator Saxby Chambliss (R-GA), the
chair of the Senate Subcommittee on Immigration, Border Security, and
Citizenship, for introducing legislation, S. 2089, which would address
my situation. This targeted legislation would provide welcome relief to
people like my family and me and others who, during fiscal years 1998
through 2003, were unable to obtain permanent residence under the DV
program because the fiscal year ended before their cases were approved.
The bill authorizes such individuals to reopen their cases and continue
processing as long as diversity visas for the fiscal year in which they
filed remain available.
I am very excited to see the positive efforts of Senator Chambliss
and the other members of the Senate who support helping those persons
such as me, who have been deprived of the legal benefit of permanent
residence by the inaction of the former Immigration Service. I hope the
Senate will move quickly on this legislation. I also hope that Members
of the House of Representatives will quickly introduce and pass this
worthy legislation.
Law-abiding people who follow the rules, pay the required fees, and
rely on the government's procedures should not be punished because of
government inaction.
Thank you again for allowing me to testify.
Mr. Hostettler. Thank you, Mr. Nyaga, and without
objection, your letters of support will be entered into the
record after your statement.
[The material referred to follows:]
Mr. Hostettler. The chair now recognizes, for purposes of
an opening statement, the gentlelady from Texas, Ms. Jackson
Lee.
Ms. Jackson Lee. I thank the distinguished Chairman very
much for his kindness, and I thank the panelists for their
presentation. I was in an earlier meeting, and I appreciate
very much their statements.
This hearing today is one that points to an overall
systemic problem, and that is that the immigration policies of
the United States are in shambles. I think if I had to
calculate the hearings that we have had over the last session,
it has been a journey of problems. We have not had an
opportunity to put forward solutions, reforms. We have heard
the Administration speak eloquently about changes to the
system, one summer, 1 year after another with no action.
So here we go again with another hearing discussing the
inadequacies and inequities of a system that is broken that
needs to be fixed. Now, whether or not you wish to topple the
Statue of Liberty, which some of the witnesses desire to do or
as others are victimized by a system that is crumbling,
clearly, we need to begin to put on track this Nation's
position and posture as it relates to immigration.
There is no doubt that this Nation will continue to be
perceived as the greatest Nation in the world, and that means
that individuals coming to seek not only a better life because
we always utilize that terminology, but to come to be on the
soil of a place that provides justice, and freedom, and
equality, and dignity.
Mr. Chairman, I was with a group of individuals just a
couple of days ago celebrating the 56th anniversary of the
independence of Israel, and one of those who was part of the
celebration, who had not been born in this country, but was a
citizen, indicated that whenever she comes back to the
country--this Nation--she desires to lay flat and kiss the
ground. Now, that is the image of America. That is what people
perceive America to be, and it is certainly tragic that we have
had an Administration that has failed to realize the need for
consistency and to realize the need for a pronounced policy, to
reunite relatives, to provide order to Diversity Visa Programs,
to protect children who have aged out, to address various
ethnic groups who have suffered in a system of indifference--
Haitians and Africans--and so here we are today.
It may be why I will, in about 40 minutes, introduce H.R.
3918, the Comprehensive Immigration Fairness Act of 2004, which
I hope the Chairman will give us the opportunity to have
hearings on before this Committee. If we do not begin to have a
vigorous discussion, questions of fraud and abuse on different
isolated policies will continue to exist, and we will continue
not to fix the problem. We will just simply be here over, and
over and over again.
Mr. Chairman, I know your frustration. We may disagree on
ways to get to the ultimate journey, which is to have a policy
that immigrants and others alike, enforcers can understand, so
that in Houston, Texas, we do not have individuals fleeing
schools and worksites of Hispanic origin because they believe
there is going to be a raid at hospitals and schools. This is
frivolous. This is a country that invented electricity, the
light bulb, trains and buses, and yet we cannot seem to sit
down for a reasonable program.
We all know what the Diversity Visa Program is all about.
We realize that it is only limited to six geographic regions.
Mr. Chairman, it has been put in place so we can fix the broken
system. The program does not provide visas for countries that
have sent more than 50,000 immigrants to the United States in
the past 5 years. The top countries in the latest year for
which detailed data is available, fiscal year 2002, were places
like Albania, Ethiopia, Nigeria, Poland and Ukraine, countries
that, overall, may have a number of other issues, but we have
not necessarily seen a waive of terrorists coming in from those
Nations. In fact, Poland now is a new member of the NATO
alliance.
This is a lottery program, and we know that the problems
have come about through fraudulent ID and identity theft,
maybe. We realize that the Office of the Inspector General for
the State Department issued a report on the Diversity Visa
Program. According to the report, the Diversity Visa Program is
subject to widespread abuse, why we are here today.
If we had a reform in the immigration policy, access to
legalization for those who are illegally in this country and
other reunification efforts, we might not be at this hearing
today. We would give lawyers the opportunity to have a real
road map that they could follow with their clients. We could
eliminate the 6 million backlog in benefits where there are
people in line legally or trying to access legalization in a
legal way. We would have a situation, Mr. Chairman, where a
student who had an I-94, went to Mexico on a summer break, left
the I-94 in her school dorm, did something foolish because she
is young, coming across the border from Mexico in the United
States, they asked her if she was a citizen. The kids with her
said, ``Say, yes,'' and of course she was not. Got caught. Had
all of her documents, but in a dorm like kids will do, their
keys in their car, as opposed to where they're supposed to be.
And so we have to face the problem of her being deported who
has been in this United States for almost 20 years, has a
husband and a child. It is an outrage. This program is likewise
filled with outrage.
Mr. Chairman, I believe that this program is worthy of
fixing. It is not meritorious of the condemnation that some of
the witnesses this morning have begun to do because that is
their life's work, to condemn immigration policies and to
suggest that we must go back to the Neanderthal days when we
did not extend to those who sought an opportunity to come here.
It is foolish. It won't work. And the only thing that is going
to help us is to use the electronic improvements that we have
begun to use in the diversity program or the diversity system
and make sure that we are diligent in eliminating the
suggestion of fraud, but to eliminate the program would be
foolish.
I would just close by simply saying that I believe Mr.
Nyaga, a native of Kenya, has very eloquently stated his case.
He has proven that he is no threat to this country. In fact,
some of us might think that we need more prayer, and so I would
hope that by hearing his story we realize that people who
follow the rules and follow timely diversity visa applications
should not lose their immigration benefits on the account of
accounting and processing delays.
I would ask this Committee to seriously think, to get back
on track to be reformers and individuals who can put this
immigration policy on track and begin to set us straight.
I yield back, and I thank the Chairman.
Mr. Hostettler. I thank the gentlelady.
The chair will now recognize Members of the panel for 5
minutes for questions.
Dr. Camarota, the Committee has been told that one of the
main flaws in the visa lottery is that applicants file multiple
applications under different names or different variations of
their names. To your knowledge, is this a common occurrence?
Mr. Camarota. Yes, it is, for the obvious reason that the
more you submit, the better your probability of selection based
on statistics. And then this is one of the reasons why so many
of the subsequent winners don't qualify is because then they
have to come up with the bogus documents to back up the names
that they submitted their applications under.
Now, since such a large share from countries--come from
countries with a kind of weak document regimen or a system
where documents are notoriously unreliable, they can often do
that, but this creates an enormous problem because one of the
fundamental things that we have to do to keep out criminals,
and terrorists and other people who are not qualified is verify
identity. But the whole visa lottery itself encourages people
to, if you will, disguise their identity because we reward, if
you will, multiple applications under different names and then
people have to back that up. And this is, I think, one of the
many problems with the lottery itself.
Mr. Hostettler. How difficult is it for lottery winners to
obtain fraudulent documents to back up their fraudulent
application?
Mr. Camarota. Obviously, it would vary quite a lot from
country to country. But according to International
Transparency's Index, many of the top winners, in fact, most of
them, are countries that rank highest in fraud and abuse. So,
in that environment, a false driver's license, a false record
of work, a false birth certificate. The kinds of things that
consular officers would rely on are apparently pretty easy to
come by.
Mr. Hostettler. Thank you.
Ambassador Patterson, in your testimony you state that the
Diversity Visa Program is fraught with fraudulent applications,
and the State Department is authorized to charge fees to
maintain the program. Could you tell us why the State
Department has not charged the necessary fees for the program
that would help in aiding in the exposure of fraud and
elimination of fraud in the Diversity Visa Program.
Ms. Patterson. Well, the Department, for the winners, is
planning to raise the fee this year to recoup the cost. But I
think the basic answer is, under the old paper-based system, it
simply wasn't practical. When this cash would flow into the
Kentucky Consular, it would not have been feasible to have cash
flow into the Kentucky Consular Center in an envelope with the
application.
Now, that they're on an electronic system, we have systems
like PayPal or credit cards or debit cards that would make this
much more feasible. We think it would--we had a lot of
discussion about this in preparing for the testimony--we think
it would probably require legislation to allow the Department
to recoup more than its costs, but one thing we were
particularly concerned about in our report was not so much the
recovery of costs, but funding the personnel overseas that we
need to investigate these cases of identity theft and false
records.
Mr. Hostettler. Now, when you suggest covering the costs,
with your last statement----
Ms. Patterson. Yes.
Mr. Hostettler.--part of the cost is not considered to be
the fraudulent application investigations?
Ms. Patterson. It's very hard to get those figures very
precisely, and some of the consulates that have a very high
number of DV winners are basically small posts with no adequate
personnel. This probably wouldn't be true of a place like
Nigeria, of course, but it is true of a place like Albania. So
they need more personnel to work directly on the DV Program.
We also mentioned that some of these costs are hard to
ascribe across programs and more work needs to be done on that,
but our view is strongly that some fees should be levied for
entering the program at all.
Mr. Hostettler. So the legislation that you're speaking of
has to do with the authorization or appropriation of more
personnel?
Ms. Patterson. Yes, that would be, in our view, the
greatest weakness and the place where money is most needed at
this point. The recovery of costs, our estimate was $840,000,
but the bigger problem is overseas and the ability to
investigate the fraudulent cases.
Mr. Hostettler. So there is not a policy issue with regard
to investigating fraud; it is just a matter of manpower.
Ms. Patterson. It is not a policy issue, and in some places
we've had quite remarkable success, like in Nigeria, in
investigating some of these cases.
Mr. Hostettler. Thank you.
Professor Ting, you have provided the Committee with an
extensive discussion of the history of the visa lottery. And
what were the original purposes of the visa lottery?
Mr. Ting. Well, I think it's clear from the history, if you
look back to 1987, that the purpose of visa lottery was mainly
to bring Europeans to the United States. And I think if you
look at the most recent statistics for fiscal years 2002 and
2003, out of the six regions, the regions sending the most
people under the DV Program continues to be--and always has
been as far as I can tell--Europe. And that was an explicit
purpose, and I think anyone who looks back at the history of
the program, back to the original program back in 1987, can see
that it was transparently a device to bring more Caucasians to
the United States. And I think the fact that it now also brings
significant numbers of Africans and Bangladeshis to the United
States does not mitigate the discriminatory nature of the
program which continues to this day.
Mr. Hostettler. Thank you.
The chair recognizes the gentlelady from Texas for 5
minutes for questions.
Ms. Jackson Lee. Thank you very much, Mr. Chairman.
Let me try to understand, Mr. Camarota, what your angst is
with these policies. You stated that the lottery's very
existence tells hundreds of thousands of other people living
here illegally, who have no realistic means of ever getting a
green card, that they should not go home because one day they
too may be in the visa lottery if they play it long enough.
The current estimate is that we have between 8 and 14
million undocumented aliens in this country. Do you have any
evidence to show that a substantial portion of them would leave
the country if the Diversity Visa Program was terminated?
Mr. Camarota. Well, that's why I said several hundred
thousand, assuming that there are 8 to 10 million illegal
aliens in the United States, and according to the INS, about 70
percent are presumably from Mexico, and then Central America
and so forth, countries often outside of the visa lottery. But
there are clearly several hundred thousand people in the United
States illegally who are nationals of countries that could
benefit from the lottery.
We do have some anecdotal evidence. Obviously, there was a
survey done of legal immigrants, and it did appear that a third
of those who were lottery beneficiaries back in the 1990's were
residing here illegally. Additionally, very often lottery
applicants will give an address within the United States--
again, this provides evidence that a large share are illegal.
Ms. Jackson Lee. May I just----
Mr. Camarota. So I think there's pretty strong evidence
that a significant share of visa lottery winners are----
Ms. Jackson Lee. Thank you for that answer.
I would imagine we could also say that a grain of sand on
an ocean beach might ``spurry'' up and fly up in the air and
gather dust and become a boulder that lands in Jackson,
Mississippi, and kills 500 people. There are a lot of things
that we could speculate. That's what anecdotal evidence is all
about, from my perspective.
Let me suggest to you that I would be very confident in
taking a roving microphone and would go to any immigrant
community in the United States where people are living
illegally and pose a question to someone, not a lawyer or an
immigrant advocate, and ask them are they waiting to get into
the Diversity Visa Program, and I would venture to say that
most would look at me in shock and askance because they
probably have never heard of it.
So I think your anecdotal evidence is weak at best. I
think, as I said, my premise is that we need to be in the
business of reform. My question to you, then, what is your
suggestion in terms of if we have this visa waiver program,
what is your ultimate suggestion--elimination?
Mr. Camarota. Did you say visa waiver program? I'm sorry.
Ms. Jackson Lee. Excuse me, the Diversity Visa Program.
What is your point; is it elimination?
Mr. Camarota. Yes, and as I indicated, I don't think it's--
--
Ms. Jackson Lee. What is your philosophy or what is your
proposal for an immigration policy in the United States, short
of, well, let me not put words in your mouth, but short of that
we want to make sure that we have no policy? So do you have a
way for immigrants to come into the country?
Mr. Camarota. Obviously, it would take a long time to
answer your question, so let me answer it this way. I think the
United States can, and should, accept more people for permanent
residence, that is, green cards, than any other country in the
world----
Ms. Jackson Lee. You think they should.
Mr. Camarota. We should accept more people. Presently,
we're accepting about three times as many as the next nearest
country, which would be Canada, but certainly I think we can
accept more and should accept more.
I think that I basically come down where the late Barbara
Jordan came down, is that we should have a system where we
decide who it is we're going to admit every year, and then
admit all of those people, but that system should be built
around basically families, immediate families--not more
extended.
Ms. Jackson Lee. You support 245(i)? That's--Mr. Chairman,
I think we have an enormous announcement here that should be
really reported by the news because we've got Dr. Camarota, if
I'm pronouncing his name correctly, and forgive me if I'm not,
announcing to open the doors for legal permanent residents.
We've got him announcing family reunification, which is 245(i).
I think we can talk, Dr. Camarota, and I am going to go to
Dr. Nyaga, if I could.
Mr. Camarota. Let me just say that I did not endorse giving
out green cards to illegal aliens, that is, people here
illegally. So what I said is that our legal immigration system
should reflect I think what the Jordan Commission suggests.
Ms. Jackson Lee. And let me just say, and great respect for
the esteemed Barbara Jordan, who sat in this seat preceding me,
is that not being here to explain in this element and climate
further her thoughts, I respect what you have said.
I was going to Mr. Nyaga, and I will end on this. What
would you like to see as a conclusion to your application, sir,
since you believe that the system weeded you out, as opposed to
you ignoring the rules and not following the rules? What would
be the best conclusion for you?
Mr. Nyaga. Madam, the best way to look at my case would be
to adjudicate my case, give me relief. Because, right now, I'm
facing deportation, after having done all the Government asked
me to do. I followed all of the rules.
Ms. Jackson Lee. And you did not present yourself in a
fraudulent manner or an abusive manner.
Mr. Nyaga. I did not, ma'am.
Ms. Jackson Lee. And you are here with a family.
Mr. Nyaga. Yes, ma'am.
Ms. Jackson Lee. We thank you very much for your testimony,
and your expression and knowledge about this system. Thank you
very much.
I yield back, Mr. Chairman.
Mr. Hostettler. The chair recognizes the gentleman from
Iowa, Mr. King, for 5 minutes.
Mr. King. Thank you, Mr. Chairman, and I direct my first
inquiry to Professor Ting, and I think just a simple point to
clarify.
And that would be that you made the statement that the
Diversity Lottery discriminates solely on the basis of
ethnicity. Would you concede that the language of it
discriminates on the basis of national origin?
Mr. Ting. Yes. I mean, I'm not sure how we would parse the
distinction that you're making. Clearly, it's based on where
you were born, and I use as an example the child of Chinese
diplomats born in Malawi, which, by the way, is a real case,
and that individual did qualify as a native of Africa and did
gain a green card in the United States. So that is the case.
But I do think it's discriminatory, and I think in response
to an earlier question from Congresswoman Lee, the reason most
illegal aliens don't know anything about the Diversity Visa
Lottery is because they're not eligible for it. The
discrimination is so great that most of the illegal aliens in
the United States, particularly from Latin America and Asia,
are not eligible for it. So, of course, it's not high in their
minds.
Mr. King. And then, Professor Ting, would you also, having
conceded that technical point and made your point as well,
would you concede that a Nation has a right, and sometimes
possibly a duty to discriminate on immigration policy or do we
have an obligation to put the perfect multicultural formula
into our immigration policy so that we get the balance from the
rest of the world?
Mr. Ting. Well, the Supreme Court has held unanimously that
we can discriminate in immigration on any basis that we want.
If we decide we don't want any more Chinese in the country,
that is okay, and we can do that today or tomorrow. If we want
to have a quota system that specifies how many people we take
in from each country, we can do that.
I would suggest that that is not good policy, that we
should look at what's in the best interests of the United
States. We should decide what our national priorities are. I
commend the Congress for identifying family reunification and
bringing job skills, useful skills, to the United States as the
primary purposes behind our immigration policy. I think those
ought to be our priorities.
Mr. King. Then, could I ask you, also, there seems to be a
sense that the proportion of the European immigrants has gone
down since 1965. Could you give some perspective into the
implications of the change of the immigration law in 1965 that
might have initiated such a change in that proportion?
Mr. Ting. Well, sure. I mean, up until 1965, the quota for
Asian countries was typically about 100 per year, about 100 per
year from a country like China. And when it was proposed in
1965 that the discriminatory quota system be lifted, there was,
I understand, a heated discussion in Congress as to whether
this would, in fact, set off a wave of Asian immigration to the
United States. And it was only upon the reassurance that this
was not, in fact, going to happen that Congress felt
comfortable abolishing the discriminatory immigration system,
the quota system that was there. Of course, after 1965, the
wave of Asian immigration occurred. And most of the Asians----
Mr. King. In many cases then--excuse me--in many cases then
it becomes a political question rather than a legal question,
but I do appreciate your remarks on that.
I direct to Dr. Camarota--I see my time unfolding here--the
broad and general question that I would like to have the
opportunity to ask each one of the panel members would be how
does the Diversity Lottery enhance the economic, the social and
the cultural well-being of the United States of America? And
wouldn't that be the central question that we should ask before
we adopt any immigration policy?
Mr. Camarota. Absolutely. I couldn't--I agree with that 100
percent. As far as I can tell, it doesn't select people based
on some skill, and it doesn't satisfy a humanitarian concern,
it doesn't satisfy some need of the U.S. economy. It doesn't
even bring the diversity that it purports to, quite frankly. I
can find no logical reason to burden the immigration system
with this program.
Mr. King. Thank you.
Mr. Nyaga, would you care to answer that question?
Mr. Nyaga. I would say I would tend to differ with Dr.
Camarota--I'm sorry--because he may be looking at a very, very
small number of the people who are in the woods hiding, but I
work two jobs, I pay my taxes, and there are so many of us who
do that. So, if you are looking at just a small percentage,
then you can say what you are saying here. But I believe the
majority of the immigrants who come here are looking for a
better life, and they help the economy as much as the Americans
do. We work a lot more than the Americans do sometimes. Would
you contend that?
Mr. King. Mr. Nyaga, I would just make the point, as our
clock ticks down here, that I see a humanitarian interest in
this, and that's the only way that I can justify the Diversity
Lottery, and there are 6-point-some billion humanitarian
interests across the planet, and I would make the point that no
Nation can address all of the humanitarian interests that there
are around the globe.
My time is up. Thank you, Mr. Chairman.
Mr. Hostettler. Thank you.
I would ask unanimous consent for the chair to be given an
additional 5 minutes for questioning, which it will yield to
the gentleman from Virginia, Mr. Goodlatte, for any questions
that he may have.
Seeing no objections, the gentleman may proceed for 5
minutes.
Mr. Goodlatte. Mr. Chairman, thank you very much for that
generosity.
I would like to begin by noting that I was here when the
well-respected Jordan Commission, chaired by former Congressman
Barbara Jordan, made recommendations to the Congress for
substantial reforms of our immigration policy and would that
the Congress had followed the recommendations of that
commission at the time we would no longer be here talking about
this issue because Ms. Jordan and her commission recommended
the abolition, the elimination of the Visa Lottery Program.
I think that that would have saved this country some
additional problems because we, at this point, don't know what
national security effects have occurred as a result of people
who, given the odds in any given year, we may have lots of
people in this country who have been members of al-Qaeda or
other organizations that have no criminal record, no background
that would indicate that they are a terrorist suspect, but
could very well be, very much similar to the hijackers on
September 11th, 2001, most of whom did not have any significant
background or record that would indicate they were likely to do
the things that they did. That would include Mr. Hedayet, who
entered this country as a part of the Visa Lottery Program, and
killed some people at the El Al ticket counter in Los Angeles a
few years ago.
Ambassador Patterson, you've noted these concerns that the
State Department has about the way the program operates and how
it could be abused by terrorists and others. I take it that one
of those recommendations is that we exclude participation in
this program by those who are from countries that are on our
state-sponsored terrorism list?
Ms. Patterson. Yes, sir, that would be consistent with
other legislation. And there is an exclusion in that
legislation or a waiver for individuals that the Secretary
determines--that the Secretary makes a decision on. But with
thousands, literally thousands, of people coming in from these,
from these countries, and I should add that these individuals
of course go through our normal immigrant visa process, and
insofar as that we had information on them, it would be
revealed. It still is of great concern to us, and we think it
could be fixed by legislation.
Mr. Goodlatte. Sure. But there are only six or seven
countries on that list of state-sponsored terrorism----
Ms. Patterson. Yes, sir.
Mr. Goodlatte. And in the detention facility in Guantanamo
Bay, Cuba, right now are citizens of some 40 different
countries that are suspected of being engaged in combat or
terrorist activities against the United States, and Mr. Hedayet
was from Egypt. That's not a terrorist-sponsored state. Many of
the 9/11 hijackers were from Saudi Arabia. That's not a state
that's on that list.
Why wouldn't it make more sense just to simply eliminate
the program, and we wouldn't have to worry about the fraud that
comes about that the other witnesses have referred to? We
wouldn't have to worry about the abuse of the system.
Ms. Patterson. Well, from my narrow standpoint as Inspector
General, our job is to recommend improvements in efficiencies
in the program. I think your concern, though, is of course,
well-founded, that people can come in and get green cards from
other countries who are not on the terrorist list. Again, I
think there have been improvements certainly in the processing
of the immigrant visas, including the fingerprinting that may
reduce this possibility, but the bottom line is I think it's a
program that can be taken advantage of by hostile intelligence
officers or terrorists.
Mr. Goodlatte. In other words, the Department hasn't taken
a position, one way or another, on the underlying legislation.
You simply offered observations about problems with the
existing program.
Ms. Patterson. Yes, sir.
Mr. Goodlatte. Very good.
Mr. Ting, could you elaborate on the reasons why you
believe the Visa Lottery Program does not align with our
Nation's current immigration policies.
Mr. Ting. Well, to the extent, our immigration policies, we
have the most generous immigration system in the world, but to
the extent that our priorities are family reunification and
bringing people with job skills to America who can help build
our economy up, I just think we're failing. Our family
reunifi--I mean the separation of immediate families, where we
allow legal permanent residents to be in the United States
without their spouses and without their minor children is, to
me, unconscionable. And the notion that we're bringing in
50,000 people chosen at random ahead of these individuals to me
shows a misplaced set of priorities.
I think, well, I'll stop there. I think that's a response
to your question.
Mr. Goodlatte. It is, and I thank you.
Dr. Camarota, you state that, ``If one were to set out to
design a visa that was ideal for terrorists, the visa lottery
system would be it.'' I wonder if you could elaborate on that
and my observations earlier.
Mr. Camarota. Sure, because it doesn't require any tie to
an American institution, like an employer. It doesn't require a
family member to be in the United States. It's specifically for
people with no ties to the United States, existing ties--again,
something that past terrorists have generally had. In addition
to that, it's----
Mr. Goodlatte. Let me interrupt you on that point. In other
words, if you're in ``X'' country--let's just say Saudi Arabia,
where Osama bin Laden is originally from--and you want to put
terrorists in the United States in furtherance of Osama bin
Laden's goal, you don't have to have any contacts with the
United States. You can simply start sending in names of people
that you've recruited, that don't have a criminal record,
aren't going to show up on anybody's watch list or terrorist
list and get them in here.
Whereas, if you were consistent with the rest of our
immigration policies, which relate to having a family
relationship or an employment need, an employer in the United
States who needs somebody here, you've got a much harder burden
to find somebody who can fit into one of those particular
pieces of the puzzle. But if you send in 50 or 100 names from
Saudi Arabia of people who say, yes, I'll go there, and I'll be
ready to do something when Osama bin Laden sends forth the next
terrorist attack, they can do that with this program. They
can't very easily do that with any of our immigration programs.
Mr. Camarota. Not as easily. And the other thing I would
say is you want to pick countries where fraud, and bribery, and
corruption are very common so the securing of multiple
identities or false identities would be easy, and you'd also
want to pick countries where al-Qaeda is most active, and
that's what this does.
And then, finally, what you'd want to do is give them a
green card because temporary visas you have to go home, and
there's a whole bunch of restrictions on them, but the green
card has very little. You can secure American documents, like a
driver's license, and you can get a hazardous materials
license, you can travel to and from the United States as much
as you want with a green card. So the very nature of this
category is ideal for terrorists. If I were going to set out to
design one, this would be it.
Mr. Goodlatte. Thank you very much.
Thank you, Mr. Chairman.
Mr. Hostettler. I thank the gentleman.
Without objection, the gentlelady from Texas is recognized
for a question.
Ms. Jackson Lee. Thank you very much, Mr. Chairman. I just
wanted to make note of the fact that Ambassador Patterson did
not choose to comment on the question of whether or not the
program should be eliminated, which means that, as I understand
what you've said----
Ms. Patterson. Yes, ma'am.
Ms. Jackson Lee. Which means that it gives us the
opportunity to look at the comprehensiveness of the immigration
policies and begin to establish something that makes sense,
rather than the suggestion of I've got legislation, with all
due respect to my colleague, to eliminate this, and eliminate
this, and eliminate that. We need to get to be comprehensive.
Let me just put in the record, Mr. Chairman, as I close, to
suggest that the program is riveted with fraud and abuse, and
it's discriminatory, I take issue with that, and I would hope
that we never get into the business of pitting Hispanics or
Asians or Africans or Europeans against each other. We need a
consistent policy. The Diversity Program was put in place
because we have inconsistency. And so I would argue with Dr.
Ting as to whether or not there is discrimination or not. We
could probably do that for a long period of time.
But just as a probably noteworthy example or an interesting
example or maybe a fun example is that of Freddy Adu, the 14-
year-old boy who is now the newest star in our National Soccer
League, and particularly in Washington, D.C., and the youngest
professional player in the U.S. He had great promise, couldn't
get in any other way. But for his entry to the U.S. on the
Diversity Visa Program, that promise may not have been
realized. The Diversity Visa Program does not provide
opportunity for people who have few options to pursue their
dreams, but most importantly it provides the diversity our
country needs and, though small, the program adds to the
important character of our country.
So we have a lot to do on this issue, and I thank the
Chairman for allowing me to submit that into the record, and I
hope we will be looking to put forward a comprehensive program,
and I look forward to hearing or having the opportunity for
H.R. 3918 to be heard before this Committee.
Thank you.
Mr. Hostettler. I thank the gentlelady.
The chair will just simply recognize that while there are
tremendous success stories with the Diversity Visa Program, the
question ultimately must be asked about the two individuals,
for example, that perished in the airport in Los Angeles. Is
the fame and potential wealth of this one soccer player worth
the lives of the two individuals who were slain in the airport?
And that is a question that we must ultimate pit all of our
decisions against.
So I appreciate the fact that the young man will benefit
greatly as a result of America's generosity, but there are two
individuals that will have not benefitted from America's
generosity and, in fact, had funerals as a result of America's
generosity.
So, in that----
Ms. Jackson Lee. If the gentleman would just simply yield
for a moment----
Mr. Hostettler. No----
Ms. Jackson Lee. Because I wouldn't want it to be----
Mr. Hostettler.--I've yielded.
Ms. Jackson Lee. I wouldn't want it to be thought that I
had no concern for the loss of life, and so I would not want
that to be on the record.
Mr. Hostettler. I did not----
Ms. Jackson Lee. I truly have sympathy for that.
Mr. Hostettler. I did not----
Ms. Jackson Lee. I just know that you can't eliminate a
program for the tragedies that have occurred, and so I would
hope----
Mr. Hostettler. That's an interesting topic of discussion,
too.
Ms. Jackson Lee. I look forward to it, Mr. Chairman.
Mr. Hostettler. The perishing of 3,000 individuals on
September 11th.
Ms. Jackson Lee. Correct, and it was on legal visas, and
you're absolutely right, and that's why we must fix this system
so it will work so that we can keep out terrorists, but allow
those who want to come and do good in this country to be
admitted. I agree with you, Mr. Chairman, very much. Thank you.
Mr. Hostettler. That's why we must also deal with legal
immigration, as well as illegal immigration, given the fact
that the preponderance of those who perpetrated 9/11 did not
only come here legally, but were here legally when they flew
those planes into those buildings.
The chair, recognizing that all Members will have seven
legislative days to enter remarks and statements into the
record, the business before this Committee being completed, the
hearing is now adjourned.
[Whereupon, at 11:27 a.m., the Subcommittee was adjourned.]
A P P E N D I X
----------
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Elton Gallegly, a Representative in
Congress From the State of California
Thank you, Mr. Chairman, for holding this hearing. The United
States has the world's most generous immigration policy. Approximately
one million immigrants are legally admitted to this nation each year.
In addition, it is estimated that another half million per year come to
the United States illegally.
I question whether the visa lottery program should continue. Under
this program the U.S. hands out approximately 50,000 visas per year,
largely on a random basis. The visa recipients are chosen without
regard to US priorities to reunite families or provide workers for
American industries in need. And, unfortunately, the program is rife
with fraud and has been exposed to be a vehicle for extremists to enter
the country.
The program was originally designed to make visas available to
nations that were not sending large numbers of immigrants. For example,
Mexican citizens are not eligible. However, it does benefit people
coming from nations where terrorism thrives. In fact, one of the
beneficiaries of this program was Hesham Mohamed Hadayet, the terrorist
that killed 2 and wounded 4 when he opened fire on the El Al counter at
Los Angeles International Airport a couple of years ago. According to
the Office of the Inspector General , between 2 and 4 percent of
diversity visa issuances are to nationals of countries that are
designated as state sponsors of terrorism. This greatly concerns me.
I also have concerns with the incidence of fraud in the visa
lottery. A partial study of the program exposed 360,000 duplicate
applications in violation of the law. The Office of the Inspector
General concluded, ``Identity fraud is endemic, and fraudulent
documents are commonplace. Many countries exercise poor control over
their vital records and identity documents, exacerbating the potential
for program abuse.''
I am looking forward to the testimony of today's witnesses,
particularly in regards to these concerns. Thank you, Mr. Chairman, I
yield back my time.
__________
Prepared Statement of the Honorable Sheila Jackson Lee, a
Representative in Congress From the State of Texas, and Ranking Member,
Subcommittee on Immigration, Border Security, and Claims
The Immigration and Nationality Act (INA) weighs the allocation of
immigrant visas heavily towards aliens with close family in the United
States and, to a lesser extent, aliens who meet particular employment
needs. The diversity immigrant category was added to the INA to
encourage new, more varied migration from other parts of the world.
Diversity visas are limited to 6 geographic regions with a greater
number of visas going to regions with low rates of immigration. The
Diversity Visa Program does not provide visas for countries that have
sent more than 50,000 immigrants to the United States in the past 5
years. The top 5 countries in the latest year for which detailed data
is available, FY 2002, were Albania, Ethiopia, Nigeria, Poland, and the
Ukraine.
Applicants for diversity visas are chosen by a computer-generated,
random lottery drawing. The winners who can qualify for immigrant visas
and are eligible for admission to the United States are granted legal
permanent residence status. To qualify, an applicant must have
completed twelve years of formal education (the equivalent of
graduating from a United States high school) or 2 years of qualifying
work experience.
When aliens with diversity-based visas seek admission to the United
States, they are inspected by Homeland Security officers in the same
way that other immigrants are inspected. This is done to ensure that
they are not ineligible for visas or for admission under the exclusion
grounds in section 212 of the INA.
In September of 2003, the Office of the Inspector General for the
State Department issued a report on the Diversity Visa Program.
According to the report, the Diversity Visa Program is subject to
widespread abuse. Despite the rule against duplicate submissions,
thousands of duplicates are detected each year. Identity fraud is
endemic, and fraudulent documents are commonplace. Many countries
exercise poor control over their vital records and identity documents,
exacerbating the potential for program abuse.
The report recommends legislative changes to bar aliens from states
that sponsor terrorism; legislative changes that would permanently bar
all adults identified as multiple applicants from future diversity visa
programs; legal authority to make the program self-financing; and the
establishment of standards to improve the application of the program
eligibility criteria.
The State Department has made changes in the application process to
deal with the problem of duplicate applications. It has converted from
paper to electronic applications and has required each applicant to
include an electronic photograph. This new application process went
into effect for the FY 2005 visas. State has selected approximately
80,000 winners from the 6 million applications it received for this
drawing, and it will compare all 80,000 winning applications to the
entire field of 6 million applications. This new processing system
should be effective in detecting duplicate applications.
The electronic application system, however, has created a new
problem. Many people waited until the last 2 days of the 60-day
application period before submitting their applications. This
overwhelmed the registration computers. A substantial number of
applications were not filed, despite the fact that they were submitted
during the 60-day filing period.
I also am concerned about the effect of government processing
delays on the people who win the diversity lottery. Applications for
diversity visas must be processed before the end of the fiscal year for
which they are won. If an application is not processed before that
deadline, the visa is lost, regardless of the circumstances. Every
year, a substantial number of diversity visa applicants lose their
chance for lawful permanent resident status this way. This happened to
Charles Nyaga, a native of Kenya, who came to the United States with
his family as a student and is currently pursuing a master's degree in
divinity. I have asked him to come to this hearing and share his story
with us. People who follow the rules and file timely diversity visa
applications should not lose their immigration benefits on account of
processing delays.
Thank you.