The Way Forward on Immigration Policy
What makes this country unique is its openness to new ideas and new people. The strength derived from our diversity has made us the greatest country in the world. In the aftermath of the terrorist attacks of September 11th, this country is grappling with a fundamental challenge: How can we maintain our openness while at the same time making sure that those who seek to do us harm never get the chance?
It is a challenge we can and must answer. Indeed, the Bush Administration, working with the Congress, has made a strong start in addressing a range of weaknesses related to visa policies and border security. But more must be done to both close the door on potential terrorists who seek to enter America, and open the door to newcomers who contribute to the prosperity and vitality of our nation.
THE WAY FORWARD FROM HERE
Visa, border, and admissions reforms should work towards achieving three goals:
1) Keep out those who want to do us harm.
The Necessary Next Steps
In order to move farther and faster towards realizing these goals, the Forum calls on President Bush, his Administration, and Congress to take the following steps this year:
1) Congress should enact the Border Security Act (officially titled the Enhanced Border Security and Visa Entry Reform Act), which effectively addresses the next generation of measures needed to tighten up our intelligence gathering and sharing mechanisms, visa screening practices, port of entry inspections, and tracking policies and practices.
2) President Bush should energize the U.S.-Mexico migration negotiations in his upcoming meeting with President Fox, and call for a migration accord to be signed by the end of the year that combines security and enforcement cooperation with more legal visas and legal status for Mexican migrants. This will largely complete the fast start the Bush Administration has made in developing a coherent and comprehensive "smart and secure borders" strategy with Mexico and Canada.
3) The Bush Administration and Congress should implement the Bush Administration's November, 2001 INS restructuring plan, or quickly enact INS restructuring legislation that comports with the key elements contained in that plan.
4) Congress should work with the President to approve his FY2003 budget request regarding border security so that the necessary next steps are fully funded.
IMMIGRATION POLICY IN THE WAKE OF SEPTEMBER 11TH
The government has already brought to bear enormous resources and urgent changes to safeguard against additional acts of terrorism. Here are just some of the immigration-related measures that have been implemented in the past few months.
But this is only a start. To more effectively deter the admission of potential terrorists, we believe a number of administrative and legislative measures must be taken to improve our visa and border management policies and practices.
These four most important steps for 2002 are detailed below.
Enact the Border Security Act
This bipartisan legislation was crafted by Senators Brownback (R-KS), Kennedy (D-MA), Kyl (R-AZ), and Feinstein (D-CA), and enjoys broad support from policy makers and policy experts from across the spectrum. It has passed the House of Representatives twice, has over 50 Senate co-sponsors (including Senators Daschle and Lott), and if not for the delaying tactics of Senator Robert Byrd (D-WV), would likely have been enacted into law by now.
The legislation improves our nation's ability to identify potential terrorists before they enter the United States by adding layers of security from the point of screening overseas, during travel to the United States, Canada, and Mexico, upon inspection at the U.S. entry points, and after entry into the U.S. on a valid visa.
Specifically, the Border Security Act accomplishes the following:
Energize the U.S.-Mexico Migration Negotiations
President Bush and President Fox should use the occasion of their meeting in Monterrey, Mexico on March 22nd to jumpstart the U.S.-Mexico migration talks and commit their Administrations to 1) reaching agreement on a specific framework for a far-reaching migration accord by the end of the summer, and 2) concluding a signed accord no later than the end of this year. This will set the stage for Congressional action in 2003.
Prior to September 11th, the U.S.-Mexico negotiations had considerable momentum. The outline of a future agreement began to emerge, aimed at achieving three mutually-reinforcing goals:
1) Joint enforcement efforts to reduce illegal immigration;
This approach is even more relevant today. The profound insight at the heart of the U.S.-Mexico migration negotiations is that the best way to improve border security and enforcement is to strengthen joint enforcement strategies and open legal channels for immigration that benefits both countries. By working together to facilitate legal migration and isolate unauthorized migration, the U.S. and Mexico will be in a better position to 1) more effectively crack down on the black market in human smuggling and trafficking; 2) maximize the benefits of those who come to the U.S. to work hard and make a contribution; and 3) track third country nationals attempting to illegally enter the U.S. via Mexico.
This is a deal that works for the United States. Mexico works in a coordinated fashion with U.S. authorities to deter potential terrorists from entering Mexico in hopes of entering the U.S. illegally and to disrupt smuggling syndicates that facilitate illegal immigration and pose obvious security risks, and the United States devises migration and border policies that more effectively regulates who can enter, who cannot, and who is already here. This comprehensive approach would significantly enhance both our national and economic security.
Restructure the Immigration and Naturalization Service
Smart borders and smart policies will only work if we have a smart agency to administer them. As currently structured, the Immigration and Naturalization Service is far from smart.
For years, immigrant advocates have called for a sweeping overhaul of the Immigration and Naturalization Service. We have no illusions that restructuring alone will solve the INS's problems, or do so quickly. Even a well-structured agency will require years of internal reform to produce the management processes, career tracks, and cultural changes required for meaningful change. Nevertheless, restructuring the nation's federal immigration agency is a necessary and long-overdue step that must begin in earnest this year.
We believe there are two fundamental problems facing the INS at present. First, the agency is structured to fail. And second, even if properly structured, the existing patchwork of immigration policies are impossible to implement.
Structurally, the INS is beset by a weak executive function. The Commissioner's office is too low in the Justice Department hierarchy to be taken seriously, and too often ignored by the 33 INS District Directors who operate decentralized fiefdoms around the country. As a result, the Commissioner is held accountable but has little meaningful authority, while District Directors have enormous authority but are difficult to hold accountable. Over the years, this mismatch has led to a consistent pattern of unprofessional and misdirected enforcement activities, and unprofessional and discourteous service delivery.
Meanwhile, our nation's immigration policies are as antiquated and ineffective as the INS itself. As called for in this paper, the Administration and Congress have to go beyond creating an INS that can effectively enforce and administer our laws to creating laws that can be effectively enforced and administered. The current patchwork of laws unreasonably limits legal immigration in a way that encourages illegal immigration, is focused more on keeping out potential workers than on keeping out potential terrorists, and as a whole, is so complicated it makes the U.S. tax code look simple to understand and enforce.
From the point of view of immigrant advocates, any restructuring of the INS should conform to these long-held principles.
Separate the enforcement and service functions: These two functions should be separated, with distinct chains of command that enhance accountability within the two branches. Career tracks should be created both for those who enforce the laws effectively as well as to those who provide services effectively. Moreover, dividing the functions will have the salutary effect of replacing District Directors with local heads of the distinct functions.
Retain core functions in a strong executive office: The federal government's immigration functions require a full-time, high-level CEO with the authority to speak to the Congress, immigration-related bureaucracies, and the country about what is being done, what will be done, and what should be done. This will improve accountability, fully integrate policy making with policy implementation, and coordinate enforcement and adjudications functions as needed. To accomplish this, a strong executive office should retain critical sub-offices such as General Counsel, Budget, Congressional Affairs, and Public Affairs.
Coordinate functions, technology, and information: Cost efficiencies and much needed coordination between the distinct but related functions of adjudicating applications while safeguarding border security and the integrity of our laws are best served by closely coordinating functions, sharing information, and using common technology.
Fund the INS adequately and fairly: Currently, the enforcement functions of the INS are supported by ever-increasing congressional appropriations, but Congress has directed the agency to support the service side of the agency through ever-increasing user fees. Even so, fees collected from immigrants, their family members, and their employers are often reprogrammed by Congress to pay for other functions. This bad habit must be stopped if the nation is to provide more efficient adjudications as well as consistent and professional enforcement of our laws.
Some suggest the dual functions of enforcing limits and admitting newcomers are inherently contradictory, and the only way to restructure is to dismantle the INS as we know it. This may make for a good sound bite, but not for good policy and practice. America is a nation of immigrants and a nation of laws, and under a more intelligent policy and practice regime than the status quo, these commitments actually reinforce each other. And a properly structured agency would be able to walk and chew gum at the same time; to deter illegal immigration and deter the admission of potential terrorists on the one hand, and facilitate the entry of legitimate visitors and provide timely service to those coming to join families or U.S. employers on the other.
On November 14, 2001, the Bush Administration announced its plan for reorganizing the INS to better accomplish its dual mission. It is a proposal that we strongly support. The plan is based in large part on bipartisan legislation authored in 1999 by former Senator Abraham (R-MI) and Senator Kennedy (D-MA), a proposal that was almost enacted that year. In the works long before September 11th, the final version was informed by lessons the Justice Department and INS learned in responding to the terrorist attacks. As a result, the plan has significant advantages for the agency's new, security-focused way of doing business, and was met with favorable reviews by immigrant advocates.
At the plan's unveiling, Attorney General Ashcroft said that "[u]nder the plan, clear and separate chains of command for the agency's service function and enforcement function are created. Efficiency is improved by eliminating layers of management between field offices and headquarters, and accountability is promoted by providing overall direction under a single agency head, the INS Commissioner." This plan comports with our principles, and we strongly support it.
There are competing ideas related to the future of the nation's immigration function that we fear could make a bad situation worse. One is championed by the House Judiciary Committee Chairman James Sensenbrenner (R-WI), and the other is championed by Homeland Security chief Tom Ridge.
The Sensenbrenner approach would divide the INS into two separate organizations and then put an emasculated executive in place to coordinate the two distinct agencies. The weak executive office would be even weaker than the current INS Commissioner post. This would be like sending troops into battle not with commanding officer authorized to give orders but with a guidance counselor authorized only to dispense advice. As currently conceived, the Sensenbrenner approach is likely to undermine, rather than facilitate, much-needed improvements in accountability and efficiency.
Based on press accounts, the Ridge approach would consolidate some elements of the INS, such as the Border Patrol, with the U.S. Customs Service (earlier proposals would have included the Coast Guard) under either the Department of Justice or the Homeland Security Office. Although enhanced coordination of border-related functions makes sense, the idea of collapsing these functions into a combined bureaucracy strikes us as a "big idea" in the post-September 11th environment that is still looking for a rigorous analysis and thoughtful rationale. Claiming that it is confusing to have officials with different uniforms at ports of entry is simply not good enough. Moreover, going down this road is likely to slow down INS restructuring. And if enacted, it would separate out INS enforcement functions that we contend operate best when coordinated with a distinct services branch under the command of strong executive office.
The time to act is now. The President and Congressional leaders should move to restructure the INS along the lines of the principles contained in the President's original INS plan and supported by stakeholders most familiar with the problems and challenges of the INS.
The Bush Administration's FY2003 Budget on Visa Reform and Border Security
Any enforcement measure-new or old-cannot be effective unless there is money to pay for it. To that end President Bush, in his budget proposal for Fiscal Year 2003, earmarked $11 billion for border security. This money would fund increased border management operations for all agencies and departments involved in carrying out these duties, including the Immigration and Naturalization Service, the State Department, the Customs Service, and the Coast Guard. In addition, it would contribute substantially to new information tracking and sharing initiatives related to the entry and exit of foreign nationals.
Specifically, the budget calls for:
THE KEYS TO SUCCESS: ISOLATING TERRORISM, NOT AMERICA
Some suggest the only way to make America safe is to close the borders, but building a wall around America is neither practical nor desirable. Real success in preventing another terrorist attack will depend on many interrelated factors.
About The Author
The preceding is a statement by the National Immigration Forum, one of the nation's leading pro-immigrant policy groups. The paper deals exclusively with policies and strategies related to visa reform, border security, and admissions policies in the wake of September 11th. It does not address the civil liberties and due process implications of the aggressive law enforcement actions carried out by the Department of Justice since September 11th, critical issues which deserve a separate and full review.
The purpose of the National Immigration Forum is to embrace and uphold America's tradition as a nation of immigrants. The Forum advocates and builds public support for public policies that welcome immigrants and refugees and that are fair and supportive to newcomers in our country.