Mr. Chairman and Members of the Subcommittee. My name is Demetrios Papademetriou and I am the Director of the International Migration Policy Program at the Carnegie Endowment for International Peace. Thank you, Mr. Chairman, for asking me to testify about the proposal to restructure the Immigration and Naturalization Service that my colleagues and I developed a few months ago. I am submitting this testimony for the record. I also am submitting an opinion piece that summarizes key elements of our proposal; it appeared on April 24, 1998 in the Los Angeles Times.

I. OVERVIEW

A new era of large-scale immigration calls for new forms of governance and management. As we negotiate these demands it is important to ask ourselves a number of critical questions. First, are the intentions of the immigration system clear to all who engage with it? Second, are our institutional structures equal to the task of managing the responsibilities implied by large immigration numbers and ever more complex functions? Third, are various components of the immigration function rationally organized into a set of interrelated elements whose whole is clearly larger than the sum of its parts? Fourth, is the system we have in place--both in terms of its organization and of its location within our public administration apparatus--capable of delivering all the programs we expect of it? Fifth, can the system satisfy Americans that increasing public investments in the immigration function have in fact improved its two main elements: compliance with the law and provision of services in a timely, fair, and courteous manner? Finally, is the system flexible enough to learn from experience, embrace change, and meet the financial and programmatic criteria of accountability that the public has a right to expect?

These questions were very much at the core of a study recently completed by my colleagues and I at the Carnegie Endowment. This study's purpose was: to examine whether the institutional framework that has been created to manage our immigration function meets fair and reasonable expectations of program integrity and delivery and--if it does not--to offer appropriate alternatives. In order to do so, we met with representatives of the Administration, the Congress, interest groups, service providers, and others who have studied these issues; drew on our own knowledge and experiences as well as those of other governments; and reviewed the work of more than a century of study groups, commissions, task forces, congressional committees, and researchers.

Our starting premise was that immigration can best be managed in the context of laws grounded in a realistic policy vision, an appreciation of immigration's relationship to other major domestic policy priorities, and a high degree of clarity about the international objectives and obligations of the United States. Effective day-to-day management, in turn, has four primary ingredients: regulations that make sense, are transparent, and are consistently applied; programs that emphasize an uncompromising commitment to accountability; an institutional culture that understands and internalizes the agency's mission and priorities while embracing and rewarding personal integrity and professionalism; and enough vigilance to identify and fix small problems before they become big ones, while adapting constantly to changing real circumstances that may require adjustments in policy and law.

THE IMMIGRATION FUNCTION

In an important sense, there is no single "right answer" to the question of where the immigration function should be located or how it should be organized. The system is big, complex, and asked to do many discrete things. An optimal location and structure for offices that grant benefits, and must thus be accessible and "user-friendly" to customers, may not be the same as those which optimally serve the needs of officers who investigate immigration violations and arrest and detain people. A system of records that maintains accurate and easily accessible files of lawful immigrants may not be the same system that tracks criminal aliens most efficiently. While form should follow function, flexibility should also be an important organizational principle when "on-the-ground" conditions demand it; a picture with neat boxes may be pretty to look at but difficult to implement.

In this study, we identified some major areas in which form appears to impede function, or in which an important function lacks a location. We then asked how the current structure might be modified to enhance policy coherence, public accountability, and customer service. We did not start from scratch, nor are we simply suggesting changes at the margins. There are some major problems and gaps that demand major changes. Remarkably, we found that the immigration bureaucracy has been plagued by many of the same problems and challenges throughout its history despite numerous congressionally mandated changes and internal restructurings. This finding implied that the questions regarding the most appropriate location and the most effective organization of the immigration function are larger than simply the politics of the moment, U.S. immigration policies, or an administration's management of the agency.

Finally, after evaluating several possible changes of placement and structural reform, we conclude that the salience of migration and citizenship policy today argues in favor of consolidating virtually all immigration functions in a single, independent, Cabinet-level agency. A second-best, but still fundamental, change would be to elevate the immigration function within the Department of Justice through the creation of an Associate Attorney General for Immigration.

Under either alternative, we recommend the complete separation of service and enforcement functions, each with its own career path, chain of command, and system of accountability for the complete delivery of its function. Both functions, however, would ultimately report to the same high-level administrator who also would be charged with the formulation of immigration policy for the Executive Branch. By doing so, we believe that two of the central weaknesses of the management of immigration as it is presently structured--lack of overall policy coordination and unequal attention to the agency's two main activities (enforcement and service)--are addressed with clear gains in the accountability of each activity and the consistency of program delivery.

We also conclude that other options are not up to the task. Simply separating service and enforcement functions within the existing INS could be an important step, but it would not improve policy development and coordination and might not sufficiently close the agency's credibility gap. Nor are we persuaded by the proposal to dismantle the INS and disperse its functions to other agencies. Such a move would transfer core immigration functions to agencies that do not view immigration issues as fundamental to their missions. Moreover, rather than improve policymaking, it would be likely to hinder coherent policy development.

III. HISTORY OF THE IMMIGRATION FUNCTION

Since Congress first began to centralize control over immigration in 1864 with a Commissioner in the State Department, the immigration function has been moved from department to department; substantial internal reorganizations have been even more frequent. Complete control over immigration was given to the Treasury Department in 1891 after an attempt to delegate to the states enforcement of laws against arriving aliens resulted in inconsistencies and inefficiencies. The Bureau of Immigration was transferred to the newly created Department of Commerce and Labor in 1903 because of the latter's focus on enforcing the laws regarding foreign contract labor. The naturalization function was added three years later, and an information division also was added to help immigrants settle throughout the country and compile a list of employment opportunities for them. When the Department of Commerce and Labor was split into two departments in 1913, the Immigration and Naturalization Bureau was shifted to the new Department of Labor and divided into two bureaus, which were reconsolidated in 1933 and renamed the Immigration and Naturalization Service (INS). The INS remained in the Labor Department until 1940 when President Franklin D. Roosevelt's Reorganization Plan transferred it to the Department of Justice as a wartime national security measure. It has remained there since.

Structural reform proposals date back to the first decades of the 20th century. They consistently have focused on INS' multiple missions (particularly the tension between service and enforcement), the overlap of INS functions with those of other agencies, and INS management. More specifically, they commonly have looked at raising the profile for immigration policy development, consolidating border agencies, consolidating the DOS and INS visa responsibilities, and improving efficiency and management.

The three most recent immigration commissions all have addressed this issue. In 1981, the report of the Select Commission on Immigration and Refugee Policy recommended maintaining the basic structure of the immigration system, with responsibility for visa issuance in the State Department and for domestic operations with the INS. Within this structure, however, SCIRP recommended a clear budgetary and organizational separation of the service and enforcement functions of INS; an upgrading of the level of the Commissioner to Director, and the creation of an Article I immigration court. A staff report noted that if a new immigration system were to be set up, they would recommend a new independent agency, but observed that there would be many jurisdictional and practical problems, such as personnel, that could preclude serious consideration of such an option.

The 1990 report of the Commission for the Study of International Migration and Cooperative Economic Development concluded that reorganization of the immigration function was "urgently needed." It recommended an Agency for Migration Affairs that would centralize immigration and refugee issues, give migration a higher profile on the domestic and foreign policy agendas, and eliminate costly and overlapping activities. AMA would include INS (except for Border Patrol and interior enforcement), the Bureau of Consular Affairs (except assistance to Americans abroad), the Bureau of Population, Refugees, and Migration, and the asylum office at the State Department. In effect, this would have split the service and enforcement functions, which the Commission was concerned were competing for resources, lacked coordination, and caused confusion about mission and responsibilities.

The final report of the U.S. Commission on Immigration Reform in 1997 recommended a Bureau for Immigration Enforcement within the Justice Department for border and interior enforcement; an Undersecretary of State for Citizenship, Immigration, and Refugee Admissions within the State Department with responsibility for benefit adjudication; an Agency for Immigration Review for independent repeals of administrative decisions; and a transfer of the immigration-related employment standards enforcement to the Labor Department. This fundamental restructuring of the immigration responsibilities according to function, which would eliminate the INS in its present form, was meant to address INS's mission overload, conflicting responsibilities, and poor performance of its responsibilities.

IV. PROBLEMS WITH THE CURRENT STRUCTURE

A. Weak Coherence in Policymaking and Execution and Low Agency Stature

Considering the issue's importance and the lack of a single central location for the routine and ongoing formulation and review of migration policy, one might suppose that the Executive Branch would establish a standing policy group to consider U.S. immigration policies. One might also expect a coordinated policy effort that examines the impact of migration on a variety of domestic and foreign policy realms. That, however, is not the case.

A variety of agencies have various pieces of the overall responsibility for immigration. These tend to be viewed narrowly, and they are principally operational: the INS is charged with most day-to-day program delivery tasks; the State Department deals with visa issuance and most refugee policy issues (the program is delivered by the INS and the Department of Health and Human Services); the Department of Labor weighs in on some work visa issues and helps enforce workplace immigration rules; the Department of Defense gets involved in high-seas interdictions and off-shore safe havens; and the Department of Health and Human Services manages refugee resettlement programs with the assistance of the states and private service providers. When confronted with a major migration crisis, control and coordination shifts to the National Security Council, which seeks information from and gives direction to the relevant departments.

Major immigration initiatives typically are vetted through the Domestic Policy Council, which in recent years has served more of a coordinating role than a policy formulation function. Routine coordination of agency perspectives on specific issues is handled by a few staff persons at the Office of Management and Budget (OMB). OMB also is responsible for coordinating government-wide responses to congressional requests for an administration position on pending legislation. Impasses at staff level are typically "kicked upstairs" to the relevant agencies' political management. Because of the way in which responsibility for the function is dispersed among agencies, and the function's low relative priority within most parent agencies, vetting differences typically does not start until it is very late in the process and consensus is often reached at the last moment--leaving both principals and staff exhausted and congressional committees frustrated. The lack of a central location and a formal structure for policy development are thus highly problematic.

B. Poor Customer Service

The budget of the INS has increased by 153 percent in the past five years; during the same period, staff levels have grown by 51 percent. Administration requests for Fiscal Year 1999 seek to increase budget and personnel by an additional 11 and 9 percent respectively. If the recent past is any guide, appropriations may even exceed Administration requests. The vast majority of the increase in appropriated funds has gone to enhanced border enforcement, detention and deportation, investigations, land border inspections, and technology improvements. Services--including adjudication of applications, issuance of documentation, and provision of information--are largely funded out of fees paid by persons filing applications with the INS, and these accounts also have grown significantly in recent years.

Despite the budgetary increases and growth of fee-based accounts discussed above, the day-to-day service to immigrants and U.S. citizens at immigration offices around the country does not appear to have materially improved. Lines at district offices remain long, telephones go unanswered, files continue to get misplaced or lost, information about particular cases and general policies remains difficult to obtain, and the public's experience with INS service personnel continues to be the agency's number one image problem.

Poor service has consequences beyond the frustrations experienced by individual clients. It implicitly sends a message to U.S. citizens and corporate entities that petition for a foreign-born person, as well as to immigrants who seek a service, that their needs and interests are not valued--a message that may eventually impede integration efforts and may also find reflection in public attitudes. Inadequate service also erodes support for the INS and undermines the credibility of agency policy initiatives. Finally, poor service breeds a self-reinforcing culture among agency personnel who, because they receive daily complaints, come to view their customers as adversaries.

C. Service and Enforcement Functions Receive Unequal Attention

In recent years, public attention has focused primarily on the problem of illegal immigration; Congress and the Administration have turned the immigration portfolio, and funding, strongly toward enforcement. This has only served to accentuate the INS's dominant profile as an enforcement agency. (There have been a few notable counter-examples to this characterization, such as the legalization efforts of the late 1980s, and the recent creation of an asylum corps.)

Some believe⁽¹⁾ that the service problems stem from a fundamental conflict between the agency's core functions of deterring illegal immigration and facilitating legal immigration. The combination of enforcement and service functions also has been criticized on the ground that enforcement goals always seem to take precedence over service goals. For instance, money will be made available for expediting removals but not for expediting adjudication of immigrant petitions. Another criticism posits that the culture of the agency has bred an "enforcement mentality" that "infects" INS personnel undertaking other tasks. As a result, many adjudicators are thought to begin their tasks with a predisposition to doubt applicants and to deny applications.

Whatever the causes, the current INS structure appears to engender conflict and confusion in the performance of the agency's central functions. Those charged with implementing immigration law lack clear guidance on their core missions, how to balance priorities, or how to assign personnel. District Offices bear the brunt of this lack of clarity. They are microcosms of the immigration world: handing out documents, interviewing applicants, interrogating those they arrest, and detaining and transporting deportable aliens. They tend to be located in large cities, but their location is frequently neither convenient for lawful immigrants nor near prime areas for enforcement--such as major transit routes for undocumented aliens. District Directors are responsible for oversight of multiple functions, including adjudication, investigation, detention and deportation, and records maintenance. They are charged with accomplishing the agency's many priority tasks, as well as responding to day-to-day crises and special cases. Effective management under these circumstances is not impossible; it has, however, proven to be very difficult. Almost invariably, it has been the service side of the agency's functions that has suffered.

D. Extreme Growth in Work Load and Complexity of Functions

The tasks assigned to the INS have grown dramatically in recent years. The basic functions--border inspection, adjudication of a variety of immigrant applications, asylum processing, naturalization, and detention and deportation of unauthorized aliens--have become remarkably complex. They require policies on such diverse areas as the management of the border, arrests and interrogation, detailed regulations on complicated substantive rules of immigration law, a records systems that includes millions of entries, the production of documents requiring the use of ever more advanced technologies, knowledge of political conditions in foreign countries, the maintenance of a 12,000 bed detention program, and appearances before tens of thousands of immigration court proceedings a year.

IRCA greatly expanded the INS's duties by effectively making the hiring of any person--citizen or alien--anywhere in the United States of concern to the INS. Legislation in 1996 charged the INS with a large number of additional inspection and enforcement responsibilities. Yet, this disparate and increasingly complex array of tasks has been imposed on an infrastructure long ignored by the Congress and most administrations. To quote from the Commission on Immigration Reform:

Some of the agencies that implement the immigration laws have so many responsibilities that they have proved unable to manage all of them effectively. . . . Such a system is set up for failure, and with such failure, further loss of public confidence in the immigration system.⁽²⁾

Our own analysis does not support the assertion that the number of tasks assigned to the INS are more than "any one agency can handle"--and our recommendations reflect this conclusion. On the face of it, the INS has no more priorities than the Defense Department, the Department of Justice, Health and Human Services, or the Treasury Department. Moreover, a number of other governmental departments have both enforcement and service components: the State Department issues visas and prosecutes visa fraud; the Department of Labor grants labor certifications and enforces wage and hour laws; the Department of Justice enforces the drug laws and gives grants for drug treatment programs; and the Department of Defense plans for war and is responsible for humanitarian peace-keeping missions. Indeed, any large institution is likely to perform a range of tasks in pursuit of both enforcement and service values.

E. Lack of Accountability

The American people have a right to expect far greater accountability from the immigration system than they now get. Accountability has two dimensions. The first dimension--we call it external accountability--is based on the public expectation that important governance functions will be consistent and supportive of each other, and that agencies will deliver their principal functions effectively, both by committing resources in a manner consistent with policy priorities and by achieving publicly announced goals. The second dimension--we call it internal accountability--demands that agency personnel be held responsible for the effective performance of their duties.

External accountability has suffered in the performance of the immigration function. Policies regularly seem to be in tension--such as the conflict between admissions policies that seek to enhance our competitiveness and those that seek to protect U.S. workers. Furthermore, a strained overall relationship between the executive and legislative branches has made it more difficult to perform the immigration function well. Poor relations between the two branches on immigration issues, in turn, have produced a congressional tendency to micromanage the issue and undervalue the expertise and experience of the agency's managers and analysts.

Internal accountability also is inadequate in the performance of the immigration function. Policies and practices vary from district to district, headquarters-to-field communication is notoriously poor, and managers are rarely--if ever--held accountable for neglecting the service side of the agency's work or for tolerating enforcement practices that are at variance with agency policies. These problems have persisted whether INS has adopted a centralized or decentralized organizational structure.

Internal accountability demands that an agency develop rules and deliver programs in a fair and consistent manner, and with the highest commitment to personal integrity and professionalism. Whether in the enforcement or service component of a function, nothing undermines an agency's credibility and, gradually, its effectiveness, than repeated failure in accountability.

V. PRINCIPLES AND ELEMENTS OF REFORM

The most appropriate placement of any major function is in an agency whose primary mission is fully consistent with the function's core purposes. The present placement of the immigration function fails this simple test, in part because of the complex and cross-cutting nature of the immigration function--part service, part enforcement, part regulations, intersecting with policy realms and program domains that are close to the missions of many other agencies. More than any other single reason, and there are many, this is the explanation for the imbalance which characterizes the conduct of our immigration responsibilities. It is also the reason that the INS (and its precursors) shifted location so many times as one or another of its core purposes became paramount.

As a function changes parent agencies the performance of the function is affected in basic ways. That element of the function that is most consistent with the parent agency's mission becomes dominant; other elements atrophy or are de facto delegated to agencies whose mission is more consistent with that purpose. This is the genesis of many of the immigration service's current predicaments; it also provides the guideposts for resolving them.

If the immigration function were a relatively inconsequential one, as it was during most of the first three decades of its location within the Department of Justice (1940-1970), the case for dispersing it among agencies--the proposal of the Commission for Immigration Reform--might be compelling. But even then, the logic of the Commission's proposal would hold true for only part of its implicit conclusion: that police functions are done best by police officers. The other major part of that conclusion--that service functions should be located within the State Department--strains credibility in two significant ways. It requires the belief, first, that placing the immigration service function in the State Department would be consistent with that agency's mission and with the world view and career aspirations of its foreign service professionals and, second, that delivering immigration services would necessarily be improved--and within a reasonable time--by such relocation.

As we have already stressed, the immigration function is exceedingly important today. It has become an integral part of the country's ability to put into effect some of its highest policy priorities: enhanced economic competitiveness, consistent social and human resources policies, humanitarian aspirations and obligations, law enforcement and national security responsibilities, and a variety of foreign political and economic policy objectives. Structural reform must correspond to and reflect the function's increasing significance. What, then, might be some key elements of reform?

A. The immigration function must be organized in a manner and at a level that is commensurate with its importance to our society. The importance of the immigration function, its cross-cutting nature with other critical policy issues, and the need for coherent policy development and execution argues strongly for the consolidation of its component parts and its elevation within the Executive Branch. Consolidation will give the immigration function the common purpose it lacks. It also will allow top management to articulate a coherent vision of the agency's mission (and make explicit the values that must undergird that mission), and hold agency personnel appropriately accountable. Elevating the function will go a long way toward giving it the attention it deserves within the Executive Branch and will help the agency attract the talent it needs to perform its tasks effectively; it also will strengthen its hand in its dealings with the Congress.

B. The government must improve the timeliness, fairness, and efficiency with which it delivers services to immigrants and the many U.S. citizens involved in the immigration process. Structural reform must make improvement of service a top priority. In recent years, Congress and the administration have tended to measure the effectiveness of our immigration policy by such factors as border apprehensions and detention and deportation numbers. It ought also to be measured by declines in waiting times at INS district offices, increases in the timeliness and accuracy of information provided, and the courtesy and efficiency with which the agency's customers are treated.

C. The service and enforcement sides of the immigration system ought to be totally separated along the full continuum of each function--though staying within a single agency. To ensure better performance and greater accountability, the enforcement and service functions should be separated. This would mean replacing the current District Office structure with two distinct entities, operating under separate chains of command. We will call them Enforcement Sectors and Service Areas. These entities need not (and probably should not) be geographically coterminous. Rather, they would be defined by their respective missions. The boundaries of Enforcement Sectors would be drawn to reflect the location of undocumented populations, transit routes, the location of detention facilities and the like. Service Areas would be constructed around the location of their clientele. Under this conception, immigration officers assigned to one division would not be loaned or detailed to the other; nor would line managers have to guess at the best distribution of resources between enforcement and service priorities.

This proposed separation is not a panacea. In a world of limited resources, top managers within each function would still face difficult choices, e.g., whether to devote additional resources to employer sanctions enforcement or increased detention; whether to reduce the backlog of naturalization applications or adjustment of status cases. But at least they will be making these choices among options that are of a fundamentally similar character and can be costed and evaluated in fairly similar ways (i.e., overall number of removals, or numbers of cases completed) rather than attempting to weigh enforcement apples against service oranges.

VI. OUR PROPOSALS FOR CHANGE

We believe that the case for dispersing enforcement and service functions among agencies may reflect frustration with INS performance in the service area--which is understandable--rather than a fundamental incompatibility between the agency's two main functions. If anything, keeping the two functions together

actually produces synergies that serve broader public policy goals. For example, attention to potential for fraud properly balances service goals of completing adjudications as quickly as possible and safeguards the integrity of the system. Indeed, it is difficult to see how, without both sides participating, effective policy could be crafted and carried out on a range of issues--such as the development of documents that both facilitate entry and employment and protect against fraud, or the establishment of an asylum program that can recognize bona fide cases and deter abusive claims.

We are also convinced, however, that dramatic change is needed. Yet, change must be manageable--and capable of responding effectively to the ills of the current system. Structural change is deeply disruptive both to organizations and the people who work in them. Consequently, proposals must be evaluated not just on the basis of how neat they look in charts, but also on whether the benefits of the proposed change promise to outweigh the costs of getting from here to there. Indeed, because of a general tendency to underestimate the intangible costs of reorganization, we believe that the benefits should substantially outweigh its costs before any particular proposal is adopted.

A number of the ideas we discuss below are not new. This may be good news or bad news. On the one hand, it may reflect a growing consensus on the direction of needed change; on the other hand, it may represent the familiar scenario of good ideas chasing inertia and entrenched interests. As we stated earlier, in our view, there is no silver bullet here. The immigration function is too complex to have a simple structural solution.

A. Create a New Independent Immigration Agency

The structure best suited to address the concerns and sustain the principles we have identified above is a new, independent agency at the Cabinet level that consolidates the functions currently scattered among a number of federal agencies. (See Chart 1 for a possible organizational chart.) This agency would not itself constitute a Cabinet department, however. In this regard, the Environmental Protection Agency is our model: it took the head of the EPA 23 years to gain a seat in the Cabinet, and that may be temporary, reflecting this Administration's interest in the issue. A new immigration agency would combine the immigration functions of the Justice Department; the visa, passport, and most refugee, asylum, and migration functions of the State Department; labor certification from the Labor Department⁽³⁾; and refugee resettlement programs from the Department of Health & Human Services.⁽⁴⁾

Simply stated, an independent or Cabinet-level agency would give the immigration function its due. The current structure plainly is inadequate. The Domestic Policy Council, as noted above, serves more to coordinate and cajole than make policy. It does not have the staff or the expertise to perform serious policy analysis and development. OMB, which has access to more resources, is also hamstrung by the parameters of its role and by the fact that its organization reflects that of the government itself--the immigration function also is scattered among different divisions. The policy branch of the INS is located well down in the Justice Department structure, and the influence of migration-related policy offices at the Departments of State and Labor are generally not viewed as central to their Departments' missions. Much as environmental policy took a big step up with the creation of the EPA (established in 1970 by the consolidation of 11 programs dealing with the environment⁽⁵⁾), the creation of an immigration agency would, for the first time, fully focus the resources of the Executive Branch on the important (and difficult) issues of immigration and citizenship. Such an agency would be best able to develop and implement migration and citizenship policy in a coherent fashion and to provide high levels of both internal and external accountability.⁽⁶⁾

The INS currently is larger than several Cabinet agencies in terms of personnel, while its budget is comparable to that of several others. (See Tables 1 and 2).

TABLE 1

Personnel Full Time Equivalents (FTEs) of Selected Federal Agencies and

Departments, 1997-1999

TABLE 2

Budget Authorities (in billions) of Selected Federal Agencies and Departments,

1997-1999

Beyond coherent policy development and coordination, a new agency offers the following advantages:

· It would attract talented executives at an assistant secretary rank and also mid-level managers and analysts with a range of governmental experience. An infusion of new management and analytical talent would aid policy coherence, engender greater accountability, and stand the best chance of changing institutional "culture."

· It would have a chance to develop proper relationships with its Congressional oversight Committees, which would now have to deal with a single set of officials. In this scenario, both the agency's responsiveness and its officials' accountability would be expected to improve.

· It would separate enforcement and service functions most completely and with less obstruction from entrenched institutional interests.

· It could establish most easily a database that would create a single file for an individual as he or she moves through the immigration process--from the filing of a visa petition and admission to naturalization and the issuance of a U.S. passport.

Some might argue that creation of a new federal agency is not a politically viable option in these times. Committees of Congress charged with oversight of the immigration function have expressed exasperation with current INS operations. Thus, it has been suggested, they will be reluctant to "reward" what they view as ineffective management with the elevation of the function to Cabinet level. We believe that this would be a shortsighted approach to the current problems. Other high-immigration countries such as Australia and Canada have established independent agencies to deal with immigration and citizenship. An appropriately funded and staffed agency could resolve the problem of "mission overload" currently some attribute to the INS. Indeed, experience has shown that large federal agencies are capable of carrying out a variety of tasks, provided that they have the appropriate leadership, management and resources. The consolidation, integration, and elevation of immigration functions are crucial steps to effective planning and program implementation.

This proposal also is consistent with the need to propose "manageable change." The various functions currently scattered among the Executive Branch departments are fairly discrete; their transfer to a new agency would not undermine the missions of the departments in which they currently are located. Furthermore, consolidation would reduce the government's transaction costs in both policy development and implementation, and would eliminate the substantial duplication that now exists between the INS and the Justice Department in a variety of areas.

Finally, it might fairly be asked how change at the top levels of the Executive Branch will produce the needed changes at the lower levels--in the day-to-day interactions of government officials and the public. The answer, we believe, is that we are proposing change all along the way: at the top (in the formulation of coherent immigration policy), at the middle (with many new managers and a new emphasis on accountability), and in the field (with the separation of service and enforcement functions).

B. Elevate the Function Within the Department of Justice

The INS is in but not really of the Department of Justice. Traditionally, the Department has exercised supervisory authority over the INS, but frequently it has ignored the agency's day-to-day functioning unless an issue has hit the front page of the newspapers or has come to the attention of a congressional office. More importantly, there is no office at the Justice Department specifically charged with immigration policy development. Such matters have been handled--when handled at all--by staff members of the Associate or Deputy Attorney General. Until 1993, the general attitude of most Attorneys General toward the INS had been one of benign neglect.

This uneasy bureaucratic relationship does not well serve the formulation and implementation of immigration policy. The Department of Justice clearly has the clout to serve as a major forum for policymaking, but it rarely exercises such authority. The office of the INS Commissioner does not occupy a position high enough in the Executive Branch to fill such a role effectively--the Commissioner ranks at about the Assistant Attorney General level. (And although the INS is now larger than the FBI, both in terms of personnel and budget, the Commissioner has a lower rank than the FBI Director.)

Formulation of immigration policy needs a higher level bureaucratic home. If our first preference--a new, independent immigration agency--is not in the cards, then policymaking should be elevated within the Department of Justice. Arguably, this option could be carried out simply by the creation of an Office of Immigration Policy within the Justice Department, perhaps akin to the Office of Tax Policy in the Treasury Department (which has no day-to-day oversight of the IRS.) But we think more is needed. We would propose the elevation of the immigration function within the Department of Justice through the creation of an Office of Associate Attorney General for Immigration (AAGI). (See Chart 2 for a possible organizational chart.) The AAGI would be charged with the formulation of immigration policy and also the supervision of immigration enforcement and service functions. In short, the functions currently performed by the INS would be folded into the Department of Justice. The Executive Office for Immigration Review and the Office of Immigration Litigation also would report to the Attorney General through the AAGI, thereby combining oversight of all the department's immigration functions within one office.

Though less desirable than an independent, Cabinet-level agency, this change would still offer a number of advantages over the current structure. First, an Associate Attorney General--a position that ranks substantially higher than an INS Commissioner --would be better able to call upon and coordinate policies and services with sister agencies that have immigration-related responsibilities. To make clear the importance we attach to this aspect of the overall role, we propose that the Associate Attorney General for Immigration chair a standing inter-agency group on migration issues. Departmental policymakers would also be better situated than the INS is now to get the attention of, and to persuade, the White House on important immigration issues.

In keeping with our analysis above, we would recommend the separation of the enforcement and service functions into different divisions established fully within the Department of Justice. Each would be headed by an Assistant Attorney General and would report to the AAGI.

Folding these functions into the Department of Justice would also provide a modest opportunity for an influx of new talent at mid-level management and analytical positions in the new Offices. (The establishment of the Executive Office for Immigration Review, for example, produced an important upgrading of the immigration court and the Board of Immigration Appeals.) Finally, placing these functions directly within the Justice Department might also spark needed "cultural" change in the manner in which immigration laws are implemented and enforced, while creating substantial cost savings and efficiencies by eliminating several levels of overlapping bureaucracy that exist within the current INS/DOJ structure.

While further work remains to be done in fleshing out both proposals, our second proposal is clearly a second best solution because it leaves the immigration function--and therefore the development and coordination of immigration policy--fragmented. For example, the development of policy on the admission of temporary skilled workers (such as computer programmers) involves the expertise of the Labor and State Departments and the INS. The distinct and separate missions of these agencies have in the past made coordination difficult. Currently, the resolution of differences must occur at the White House level by staff that lacks the preparation and expertise to do so. Similarly, the admission of an immigrant on an employment-based visa also requires the input of the Labor Department (which must issue a "labor certification"), the INS (which must approve a visa petition), and the State Department (which must grant a visa). Although in recent years coordination and cooperation among the agencies may have improved, those attempting to navigate the system still must confront different attitudes, separate forms and records systems, and different administrative procedures and avenues of appeal.

VII. CONCLUSION

Twenty-seven years ago, President Nixon proposed establishing a new agency charged with administering U.S. environmental laws. His reasoning is worth quoting at some length here because it parallels closely our own reasoning for calling for a new, Cabinet-level immigration agency.

In proposing that the Environmental Protection Agency be set up as a separate new agency, I am making an exception to one of my own principles: that, as a matter of effective and orderly administration, additional new independent agencies normally should not be created. In this case, however, the arguments against placing environmental protection activities under the jurisdiction of one or another of the existing departments and agencies are compelling.

...[A]lmost every part of government is concerned with the environment in some way, and affects it in some way. Yet each department also has its own primary mission...which necessarily affects its own view of environmental questions....

Because environmental protection cuts across so many jurisdictions, and because arresting environmental deterioration is of great importance to the quality of life in our country and the world, I believe that in this case a strong, independent agency is needed.⁽⁷⁾

We believe that circumstances call for another exception to the extreme skepticism with which proposals for creating new federal agencies are received. If the immigration function is as central to sound public policy across a variety of policy domains as we believe it is; if consistency and accountability in program delivery are as weak as many observers argue; if the service function is as much of a stepchild within the INS as even the agency's friends acknowledge; and if re-arranging organizational boxes within the agency--however, radically--will satisfy neither the agency's critics nor its friends; then, creating a new, independent agency, and giving it the authority, resources, and support it requires to do its job properly becomes a compelling choice. If we decide to go through the political pain, and--from the perspective of the personnel involved, the genuine angst and uncertainty that fundamental change entails--why not do things right for a change?

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1.

⁰ See U.S. Commission on Immigration Reform, Becoming an American: Immigration and Immigrant Policy. 1997:148-49.

2.

⁰ Id at 148.

3.

⁰ Like the Commission on Immigration Reform, we would transfer employer sanctions enforcement to the Department of Labor. Under the current system, both agencies check I-9s, although DOL conducts many more such inspections as part of its general auditing of employers for compliance with labor laws. Enforcement, however, resides with the INS: DOL refers suspected violation to the Service for further action. The INS does not view such work as a core task; its investigators would rather work significant criminal cases than fine employers. And the Labor Department is generally unsatisfied with the response it receives from the INS in referred cases (indeed, in most cases it gets no response from INS).

4.

⁰ Of course, considering the fact that the departments whose functions would now be incorporated within this new agency will continue be interested in the setting of migration and citizenship policy in some way, they should continue to be prepared to offer their expertise and perspectives by developing or retaining a policy capacity located in the office of each department's top management.

5.

⁰ The EPA was created through a Presidential reorganization plan under the reorganization authority in chapter 9 of title 5 in the U.S. Code. The DEA was also created through a Presidential reorganization plan under the same authority but in 1973. Creation of the DEA consolidated all anti-drug functions from the numerous agencies within the Departments of Justice and Treasury. See also the discussion in this study's conclusion.

6.

⁰ This option has been recommended by Milton Morris in Immigration: The Beleaguered Bureaucracy (Washington, DC: Brookings Institution, 1985:141-42) and former INS Commissioner Gene McNary ("No Authority, No Accountability: Don't Abolish the INS. Make it an Independent Agency," 74 Interpreter Releases 1281-89 [August 25, 1991].)

7.

⁰ Richard Nixon, Public Papers of the President, July 9, 1970, p. 582.