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                                                          Testimony of Susan Martin

                                   Director, Institute for the Study of International Migration

                                                             Georgetown University

                                               Subcommittee on Immigration and Claims

                                                          Committee of the Judiciary

                                                           House of Representatives

                                                               November 15, 2001




Mr. Chairman, Members of the Subcommittee, thank you for providing this opportunity to testify on the “The Immigration Reform and Accountability Act.”


There is urgent need for this legislation, not least because of the events of September 11, 2001. The immigration system must restructure to improve its capacity to carry out the many enforcement and service functions required of it.  The aim of immigration policy is to guard against entry of those whose admission is unauthorized, particularly if they pose a threat to our national security, while facilitating movements that are beneficial. An effective immigration system requires both credible policy and sound management.  But, poor organizational structure will foil even the best-intended management and policies. 


The Immigration and Naturalization Service [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. 


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.  For this reason, I support enactment of the proposed legislation.


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 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 US, up from 3.5 million in 1990, suggesting that the number increased an average 400,000 a year in the 1990s. Weaknesses in enforcement derive from a host of reasons—some institutional, but others related to the lack of political will to address the causes of unauthorized migration.  Although the vast majority of unauthorized migrants come for work purposes and do not themselves pose a security threat, tolerance of their entry and presence in the country hampers efforts to close the back door of illegal migration—a backdoor that terrorists can too easily exploit for their own purposes. I emphasize this point because restructuring alone will not solve the problem of unauthorized migration—a new commitment on the part of Congress and the Administration to enforce immigration law must accompany the proposed organizational changes.


Problems have also worsened with regard to immigration services.  In some locations, it still takes well over a year to approve naturalization applications.  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 U.S. citizen son living in Los Angeles[1] marries the foreign student he met at university.  It will take two years for her to become a legal permanent resident:  the processing time for an I-130 petition is about six months (longer for spouses of legal permanent residents) and approval of an adjustment of status application is another 18 months.  If you are an employer in Los Angeles seeking permanent resident status for an employee, the processing times are even longer because of the delays in obtaining labor certification as well as adjustment to permanent resident.


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 in the “The Immigration Reform and Accountability Act.” 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 and diffusion of responsibilities--found in the current system.


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 at INS.  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.  “The Immigration Reform and Accountability Act,” by 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. 


The strengths of the approach taken in the bill are as follows:


·        The office of 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. Under the proposed legislation, a newly created Associate Attorney General will have full responsibility for policy development and coordination of activities across all of the agencies responsible for implementing immigration policy, giving these functions greater coherence. As an Associate Attorney General, this person should also 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.


·        Each agency has responsibility for a distinct set of functions related to a single, clearly conceived mandate.  The Bureau of Immigration Services and Adjudications 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. While improving services, the Bureau should also devote significant resources to ensuring that fraudulent applications for admission are quickly identified and appropriate actions taken, something that does not occur sufficiently at present despite the potential for abuse of legal admissions. The Bureau of Immigration Enforcement will have sole responsibility for the functions now performed by the Border Patrol, inspections, detention and deportation program, intelligence program and investigations.  Each will have its own chain of command to ensure maximum accountability.


·        Each agency will be led by a Director who has had extensive management experience in his or her agency’s area of competence.  In the proposed bill, responsibility for each of the two principal functions--services and enforcement--rests with a Director with at least ten years of experience in the applicable area 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 legislation 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.  Ideally, to avoid long lines and waits for service, there would be smaller offices in more locations than current INS district offices.  The Bureau for Immigration Enforcement would focus its offices in areas where serious violations of immigration law take place.  In border communities, the new Bureau could combine into one office, with one responsible official, what is now spread between the Border Patrol sectors and the INS district offices. The legislation should mandate that the new agencies report back to Congress on their proposed restructuring at the field level, and require the General Accounting Office to assess whether the proposed reforms address adequately problems in field implementation that now impede effective services and enforcement.


·        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 new position of 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 violations of customer service from US citizens and immigrants applying for immigration benefits as well as 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 as presented in the “The Immigration Reform and Accountability Act,” let me offer recommendations on two issues not covered sufficiently in the bill.


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 establishment of a Policy Advisor in the Office of the 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.


Thank you again for providing the opportunity to present this testimony.  I would be pleased to answer any questions you have.

[1]Los Angeles is not unique; any number of other district offices have similar waiting times.