Testimony
of Susan Martin
Director, Institute for
the Study of International Migration
Committee of the
Judiciary
House
of Representatives
Mr. Chairman, Members of the Committee, thank
you for providing this opportunity to testify on the restructuring of the
immigration system of the
There is urgent need for legislation to improve
the implementation of our immigration laws and policies, not least because of
the events of
The INS grew rapidly in the 1990s, for the first
time gaining resources more in keeping with the importance of its mandate. Even as resources increased, however, the
demands on INS also grew, and the agency has been unable to keep up with the
increasing size and complexity of its workload.
It remains unable to carry out effectively either its service or its
enforcement activities. Since September
11, public confidence in our immigration system has been seriously eroded by
daily accounts of mismanagement at the Immigration and Naturalization Service
(INS).
The critique I offer today of the current
organizational structure of INS derives from more than twenty years of
experience and analysis. As Director of
the US Commission on Immigration Reform, I led a comprehensive examination of
the operations of INS, as well as the other agencies involved in implementation
of immigration policy, at both the headquarters and field level. The Commission
identified weaknesses throughout the system. Although more fundamental reform
of the overall immigration system along the lines of the proposals made by the
Commission would be desirable, reorganization of INS’s
functions in particular remains urgently needed.
Why is reform needed?
In its 1997 report to Congress, the Commission
on Immigration Reform outlined two principal structural problems resulting from
the current complex system for implementing immigration policy: mission
overload and conflict at the Immigration and Naturalization Service and
diffusion of responsibility across several federal agencies, particularly for
legal immigration matters. The result is a lack of accountability for carrying
out effectively and efficiently the major functions of the immigration system.
These problems have only worsened since the
Commission’s report. On the enforcement side, INS has made little headway in
curbing unauthorized migration despite a major infusion of funds, particularly
for border control. There are an estimated 8 million unauthorized foreigners in
the
Problems have also worsened with regard to
immigration services. In some locations,
it still takes over two years from application for naturalization to the
swearing in of the new citizens.
Gleaning information from federal agency data and reports from attorneys
handling these cases, it appears that the waits for legal immigration status
are even worse. Let’s say your
INS plays a key role, though hardly the only
one, in implementing every aspect of
immigration policy. Its mission is now too broad and complicated to manage
properly. No one agency could have the
capacity to accomplish all of the goals of immigration policy equally
well. Immigration law enforcement
requires staffing, training, resources, and a work culture that differs from
what is required for effective adjudication of benefits. Each function requires serious attention from
a senior executive who can be held fully accountable for the performance of the
activities within his or her mandate.
Our Commission was not the first to recognize
this point. As early as 1931, the Wickersham Commission, in its Report on the Enforcement of
the Deportation Laws of the United States, noted the conflict arising when the
same agency is responsible for adjudicating applications for benefits and
deporting aliens. The Wickersham Commission found that "the confusion of
functions limits the effective performance of each function involved" and
recommended separating the functions. More recently, the Commission for the
Study of International Migration and Cooperative Economic Development also
concluded that placing incompatible service and enforcement functions within
one agency creates problems: competition for resources; lack of coordination
and cooperation; and personnel practices that both encourage transfer between
enforcement and service positions and create confusion regarding mission and
responsibilities.
Separating enforcement and benefits functions
will lead to more effective enforcement and improved service to the public.
What type of reorganization is needed?
The Commission on Immigration Reform recommended
a more comprehensive restructuring of the immigration system than is contained
within most other proposals for reform. Under the Commission’s proposal, the
responsibility for immigration enforcement would remain within the Justice
Department in a new Bureau for Immigration Enforcement. The responsibility for immigration services,
now dispersed among the State, Justice and Labor Departments, would be
consolidated into a new office for Citizenship, Immigration and Refugee
Admissions. The Commission’s recommendation
has the advantage of dealing with both problems--mission overload/conflict and
diffusion of responsibilities--found in the current system.
The Commission considered even more far-reaching
proposals, including establishment of a cabinet-level Department of Immigration
and the creation of a Border Management Agency—a proposal similar to the one
under consideration by the office of Homeland Security. The Commission concluded that neither
proposal was as readily accomplishable as the separation of enforcement and
services. Both ideas require other
cabinet departments to relinquish authority over activities that are integral
to their operations. For example,
removing the Customs Service from the Treasury Department may consolidate
responsibility for border management in a new agency, but the Customs Service
is also responsible for collection of duties on foreign-produced goods—a very
different activity. Similarly, if
consular functions were to move to a new Cabinet level department, State Department
would lose a historically important office that is also responsible for
protecting
Although I continue to believe that the type of
consolidation of immigration services outlined by the Commission is desirable,
I see a more urgent need to address the organizational problems within the
Justice Department. The internal
restructuring plan at INS already recognizes the value of separating services
and enforcement, and the planning team has addressed many of the operational
issues that need to be addressed in effecting such separation at the field
level. Creating co-equal agencies within
the Justice Department, one responsible for immigration services and the other
for immigration enforcement, under the direction of an Associate Attorney
General, takes this concept further and in several directions that I believe
will increase the ability of the federal government to carry out effectively
its immigration-related responsibilities.
I hope that consideration of other proposals, such as a border
management agency, does not stop the Congress from taking action that is desperately
needed right now.
The following structure within the Justice
Department would help restore public confidence in the immigration system by
elevating responsibility for these important functions and increasing
accountability for both immigration services and immigration enforcement:
·
The Associate Attorney
General will give necessary policy guidance, leadership and
coordination to the many immigration functions in the Department of Justice.
The immigration-related policy making and coordination at the departmental
level of Justice has tended to be ad hoc,
understaffed and crisis-driven. In some
administrations, the INS and the Executive Office for Immigration Review (EOIR)
have reported to the Associate Attorney General and in others to the Deputy
Attorney General, who generally serve as a
clearinghouse through which immigration-related concerns pass from the
responsible agencies to the Attorney General.
The Office of Special Counsel for Immigration-Related Unfair Employment
Practices reported to the Assistant Attorney General for Civil Rights and the
Office of Immigration Litigation reported to the Assistant Attorney General for
the Civil Division. A newly created
Associate Attorney General should have full responsibility for policy
development and coordination of activities across all of the agencies
responsible for implementing immigration policy (with the exception of the
Executive Office of Immigration Review, as discussed below), giving these
functions greater coherence. As an Associate Attorney General, this person
should have the stature and be well situated to coordinate with and access
information and other resources under the management of other Justice
Department agencies, particularly the Federal Bureau of Investigations that has
often been unwilling to share needed intelligence with INS in a timely,
effective manner.
·
The Bureau of Immigration Services and Adjudications, headed by a Director at
the level of Assistant Attorney General, will have sole responsibility for
adjudication of immigration services, including nonimmigrant and immigrant visa
petitions, naturalization petitions, asylum and refugee applications, and other
services performed by INS. The Bureau should have the following offices:
Ø Office of Immigration
Services, which would focus on the adjudication of applications for immigrant
and nonimmigrant admissions. The office
would also be responsible for issuing work authorization, changes and
adjustment of status, appropriate documentation to foreign nationals and other
similar activities.
Ø Office of Refugee Admissions
and Asylum Affairs, which would be responsible for refugee resettlement
admissions, asylum adjudications and other humanitarian admissions
programs. The staff would have
specialized expertise in domestic and international law related to refugees, torture
victims and others deserving of humanitarian responses. Creation of the Asylum
Office and its separation from other parts of the INS has been one of the only
successful internal reforms undertaken by the agency, and it should be
continued as such.
Ø Office of Citizenship
Services, which would focus on naturalization of immigrants eligible to become
citizens of the
Ø Office of Quality
Assurance, which would oversee records management, monitoring procedures, fraud
investigations and internal review of adjudication decisions.
Ø Ombudsman, who would be
responsible for investigating complaints about the services provided by the Bureau.
The Bureau would have a
field structure that supports its principal mission to facilitate
admission/naturalization of bonafide applicants. Ideally, to avoid long lines and waits for
service, there would be smaller offices in more locations than the current INS
district offices, supported by processing centers that efficiently mobilize
resources to conduct paper adjudications of applications.
·
The Bureau of Immigration Enforcement, also headed by a
Director at the level of Assistant Attorney General, will have sole
responsibility for the functions now performed by the Border Patrol,
inspections, detention and deportation program, intelligence program and
investigations. The Bureau should be
organized along the lines of other law enforcement agencies, with:
Ø Uniformed Enforcement
Officers (combining inspections and Border Patrol) who operate at land, sea and
air ports of entry, between land ports on the border, and in the interior where
uniformed officers are needed;
Ø Investigators who
identify and apprehend people who are residing or working illegally, deter and
apprehend smuggling and trafficking operations, identifying, apprehending and
carrying out removal of aliens with final orders of deportation, and other
similar activities;
Ø Intelligence officers
who provide strategic assessments, training and expertise on fraud, information
about smuggling networks and tactical support to other enforcement officers;
Ø Pre- and post-trial
“probation” officers and detention officers who oversee supervised release
programs for aliens who are not detained and detention programs for those who
are kept in custody; and
Ø Trial attorneys/prosecutors
who determine which cases to bring before the immigration court and represent
the government in those proceedings.
The field structure
should support these activities. The
location of field offices should be driven by enforcement priorities.
This reorganization
within the Justice Department has a number of advantages over the current
system, as well as the internal reorganization proposed by INS:
·
The position of Associate Attorney General, to be filled by
a very senior Senate confirmed appointee, will have the stature to give clear
policy leadership
to the immigration system and the capacity to coordinate with other divisions
of the Justice Department as well as other Departments involved in the implementation
of immigration policy.
·
Each agency will be led
by a Director, at the level of Assistant Attorney General, who has had
extensive management experience in his or her agency’s area of competence. Responsibility for each of the two principal
functions—services and enforcement—rests with a Director with significant
experience and the capacity to take on each of the applicable areas of
responsibility. Under the current
structure, the persons responsible for actual implementation of services and
enforcement are several layers below the Commissioner of INS. By elevating the level of the persons
accountable for immigration services and immigration enforcement, as well as
requiring a substantial level of prior management experience, the proposed
restructuring recognizes the national importance, size and scale of operations,
and resources devoted to each function.
·
Each agency will have
the opportunity to reorganize its field structure to ensure the most effective
implementation of its responsibilities. For
example, the Bureau of Immigration Services and Adjudications could designate
new offices, designed specifically with service delivery in mind. The Bureau for Immigration Enforcement would
focus its offices in areas where serious violations of immigration law take
place. In border communities, the new
enforcement bureau could combine into one office, with one responsible
official, what is now spread between the Border Patrol sectors and the INS
district office enforcement activities. I would
strongly recommend against the service and enforcement offices sharing space at
the field level, however. Asking
individuals requesting services or information to an enforcement office sends
the wrong message about the purposes of
·
Each agency can
concentrate on recruiting, training, deploying and promoting staff with the
needed skills and experience to carry out its functions. Staff undertaking law enforcement activities
require significantly different skills, experience and outlook than do staff
responsible for providing customer services.
The Bureau of Immigration Services and Adjudications should look towards
hiring, training and promoting persons committed to efficiently running large-scale
benefits adjudication programs and establishing customer-friendly environments.
The Bureau of Immigration Enforcement should look towards hiring, training and
promoting persons with interest and experience in pursuing careers in law
enforcement. In each case, the agency
should provide a career ladder that permits it to retain and promote competent
staff.
·
Each agency will have
its own financial resources to carry out its functions and will be accountable
for its activities. For the most part, fees cover adjudication of
applications for immigration services whereas appropriations from general
revenues cover enforcement activities.
Because so many support systems, facilities and data systems are shared,
it is difficult to determine currently whether fees for services subsidize
enforcement or vice versa. What we can
say definitely, though, is that the clients paying for immigration services are
not now receiving the services for which they pay. Separating the two functions means that each
agency will be able to set its own budget, seek its own appropriation of
general revenue funds and, where appropriate, set its own fee structures. Each agency will also be held accountable for
its management of resources.
·
The Ombudsman will help
improve accountability and customer service.
At
present, applicants for immigration benefits have nowhere to turn—except
congressional offices—to complain or otherwise raise concerns when the
government fails to provide effective services.
In hearings throughout the country, the Commission on Immigration Reform
repeatedly learned of egregious failures in customer service from US citizens
and immigrants applying for immigration benefits as well as from congressional
staff who investigated complaints. In
addition to helping individual applicants receive the services to which they
are entitled, the information presented to the Ombudsman should prove
invaluable in improving the overall systems used in processing and adjudicating
applications.
What else needs to be done?
Having
described the advantages of splitting and elevating the immigration service and
immigration enforcement functions, let me offer recommendations on four other
management issues.
The
first pertains to the diffusion of responsibility for immigration services. The reorganization of immigration functions
at the Department of Justice should help address some of the backlogs and
waiting times for receipt of immigration benefits, but it cannot on its own
overcome the delays caused by the unwieldy system that requires largely
sequential and sometimes duplicative actions on the parts of Justice, Labor and
State Departments. I urge Congress to
require the Attorney General, in consultation with the Secretary of State and
the Secretary of Labor, to report to Congress on ways to streamline the
adjudication of applications for immigration services, specifying actions that
can be undertaken under existing statutory authority and recommending statutory
changes where insufficient authority exists.
My second recommendation
pertains to policy development and oversight. The Commission on Immigration Reform
recommended developing more fully the capacity within the Executive Branch for
policy development, planning, monitoring, evaluation and oversight of
operations. In the absence of effective policy development and oversight, we
can expect bad policymaking, poorly developed programs, inadequate coordination
across agencies, and almost nonexistent program assessment and evaluation of
outcomes. The appointment of an
Associate Attorney General should help in this regard, but given the many other
departments with immigration responsibilities, there is urgent need to improve
policy development and monitoring across the federal government. The Congress should also make clear its
expectation that the new offices responsible for both services and enforcement
will undertake systematic evaluations, bringing unbiased outside resources to
bear as necessary, so they will have the information needed to continue to
improve the effectiveness of policies and their implementation.
The third recommendation
pertains to the independence of the administrative review of
immigration-related decisions, particularly detention and removal. The Commission on Immigration Reform
recommended that the Executive Office of Immigration Review become an
independent agency within the Executive Branch, a recommendation that I believe
continues to merit
serious consideration. A system of formal,
independent administrative review of immigration-related decisions is
indispensable to the integrity and operation of the immigration system. Such review guards against incorrect and
arbitrary decisions and promotes fairness, accountability, legal integrity,
uniform legal interpretations, and consistency in application of the law both
in individual cases and across the system as a whole. The review works best when it is
well-insulated from politics and the pressures exerted by the agencies whose
decisions are under review. Maintaining
the functions of the Executive Office of Immigration Review—the
The fourth
recommendation pertains to the funding of immigration services. While I
support the imposition of user fees to pay for most immigration services (not
refugee and asylum services), it is important that Congress and the
Administration take action to ensure that customers receive the services for
which they are paying sometimes-substantial fees. Fees must reflect true costs; the agencies
collecting the fees should retain and use them to cover the costs of the
services for which the fees are levied.
Agencies should also have maximum flexibility to expand or contract
their services as expeditiously as possible as applications increase or
decrease. At present, INS is unable to respond well to changes in applications,
leading often to large backlogs and waiting times. The new Bureau for Services and Adjudication
must have the authority to set, collect and utilize fees to reduce these
backlogs and ensure that they do not reoccur.
Thank you again for
providing the opportunity to present this testimony. I would be pleased to answer any questions
you have.