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Testimony of Susan Martin

Director, Institute for the Study of International Migration

Georgetown University

Committee of the Judiciary

House of Representatives

April 9, 2002




Mr. Chairman, Members of the Committee, thank you for providing this opportunity to testify on the restructuring of the immigration system of the United States.


There is urgent need for legislation to improve the implementation of our immigration laws and policies, 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 facilitate admissions that are beneficial to our national interests and consistent with our international obligations, while guarding against entry of those whose admission is unauthorized, particularly if they pose a threat to our national security. 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 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 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 any organizational changes.


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 U.S. citizen son living in Houston, Texas marries the foreign student he met at university.  It will take as much as three years for her to become a legal permanent resident, given current processing times for an I-130 petition and approval of an adjustment of status application.  If you are an employer seeking permanent resident status for an employee, the processing times are equally problematic because of the delays in obtaining labor certification as well as INS approval of petitions and adjustment applications.


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 U.S. citizens overseas.  Each of these agencies also reports to different authorizing and appropriating committees in Congress, requiring significant changes in Congressional authorities as well.


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 United States.


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.


Advantages of this Model of Reform


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 U.S. immigration policy. 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 Office of Quality Assurance would improve services while also providing significant resources devoted 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 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 Immigration Court and the Board of Immigration Appeals—in the Justice Department reduces its ability to carry out independent review of the decisions ordered by officials within the same department.  At present, the Attorney General can reverse any decisions made by the Board of Immigration Appeals, further reducing the possibilities of an independent review process.  To ensure the greatest degree of independence, the decisions by the review agency should be subject to reversal or modification only as a result of judicial review by the federal courts or through congressional action.


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.