[House Hearing, 108 Congress]
[From the U.S. Government Publishing Office]




    DIVERSITY VISA PROGRAM AND ITS SUSCEPTIBILITY TO FRAUD AND ABUSE

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

                                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
                                 ------                                

        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

                              ----------                              

                             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

                              ----------                              


                        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\
---------------------------------------------------------------------------
    \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)).
---------------------------------------------------------------------------
    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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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

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               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.

                                 
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