BORDER WAR: In a fight to dismantle the federal immigration service, the agency's bestallies could be lawyers who fear what might replace itAuthor(s): MICHAEL HIGGINSSource: ABA Journal, Vol. 84, No. 7 (JULY 1998), pp. 62-64, 66Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/27840338 .

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In a fight to dismantle the federal

immigration service, the agency's best allies could be lawyers who fear

what might replace it.

62 ABA JOURNAL / JULY 1998

BY MICHAEL HIGGINS

Few federal agencies touch lives in as many crucial

ways as the U.S. Immigration and Naturalization Service. It makes decisions that can split families

apart or keep them together, keep out criminals or let in political dissidents.

Cumulatively, those decisions help determine what the face of America looks like.

But the ins is in growing turmoil as it struggles

AP PHOTO/FRED GREAVES

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^^^^^^^^^^^^^^^^^^^^^^^^^^^H Law enforcement officers conduct a search a [^^^^^^^^^^^^^^^^^^^^^^^^^^^1 U.S.-Mexico border checkpoint at San Diego.

^^^^^^^^^^^^^^^^^^^^^^^^^^^H they as broken

^^^^^^^^^^^^^^^^^^^BB^^^^^^I as a citizenship two ^^^^^^^^^^^^^^^^^^^^^^H|PBH years ago the agency ^^^^^^^^^^^^^^^^HPP^^\^^J uralized thousands of people with ^^^^^^^^^^^^^JJI^^^^I^^^^^ out conducting proper criminal ^^HH|^H||^HHw|i||^H background checks. ^^^^^^^^^ ^^^^^^^^^^^^SjflQ The ins responded to that prob ^^^^^^^^^^^^^^^^^^^^^^^^ J^Sj lem by implementing tougher pro ^^^^^|^HH|^^^^^^^^^^^^^^H cedures now a ^^^^^^^^^^^^^^^^^^^^^^^^^^H backlog more than

are delays a year or

^HH|H^^^^^^^^^^^^H U.S. Rep. Harold Rogers, R-Ky., ^^^^^^^^^^^^^^^^^^^^^^^^^^^H who chairs the House Appropria ^B|^^^^5^^HH^^^^^^^^^^^^^Q tions subcommittee that controls ins

HH^^^^HgH^H|^HH funding, in May introduced a bill to ^^^^^^ SBI^HHHHi^^^SSSS dismantle the agency and farm out I^^^^^^^g^^SSj^^^^^^gj^^^^^S its duties to other government de

J^^^^^^^^^^^^^^^^^^^M an agency has a '^^^^^^^^^^^^^^^^^^^H long history of says Susan

^H|^^^^^^^^^^^^^^^^H Zimmerman, a Rogers aide. "We ^B^^^^^^^^^HHH|^^^| have had fraudulent fingerprinting ^^^^^^^^^^^^BSg^^^H [on background checks]. We've had ^^^^^^^^^^^^^^^^^^^^H buying passing grades on ^^^^^^^^^^^^MN^^^^^H citizenship tests. We've had people |H|||^^^^^^^^^|H|HH0H lying to members of Congress. [Rog ^^^^^^^^^^^^^^^^^^^H sure that this agency ^^^^^^^^^^^^^^^^^^^H a manageable ^^^^^^^^^^^^^^^^^^^H proposals to break up the ^^^^^^^^^^^^^^^^^^^H ins alarm the Clinton administra ^^^^^^^^^^^^^^^^^^^^H as many immigration ^^^^^^^^^^^^^^^^^^^H lawyers. The 5,200-member Ameri ^^^^^^^^^^^^^^^^^^^H Immigration Lawyers Associa ^^^^^^^^^^^^^^^^^^^^H step a for ^^^^^^^^^^^^^^^^^^^H disaster, arguing that

with its varied mandates. While immigration lawyers and clients look on anxiously, the agency that has held the keys to both the front and back doors to this country for the past century is battling for its own existence.

Key Republicans in Congress are threatening to kill the agency,

immigration responsibilities on other federal entities that are un

likely to make them priorities. In an effort to save the ins, the

Clinton administration has pro posed its own, less drastic reform. That plan would preserve the agen cy but split off its border patrol and other law enforcement functions

from the rest of its duties, including applications for citizenship and re quests for asylum.

But even that would constitute a drastic change for every lawyer who deals with immigration issues, maintains Dallas attorney Steven Ladik, second vice president of the Immigration Lawyers Assocation. "It would affect the whole thought processes of the [ins] people we deal with day to day."

The growing debate over the future of the ins has roots that go deeper than just congressional frus tration over bureaucratic shortcom ings. Americans themselves have famously conflicting views of immi gration, at once prideful and fear ful, and the ins reflects this tension.

On the one hand, the agency naturalizes new citizens, most of whom are legal U.S. residents spon sored by a close relative. It grants other legal residents the right to work and decides political refugee matters.

On the other hand, the ins is expected to be a tough cop. It patrols the nation's borders and follows up on tips of illegal immigrants in the workplace. It deports aliens who ar rive illegally, overstay their visas or violate the law in other ways.

Not surprisingly, the ins rarely makes everybody happy. A report issued earlier this year by the Car negie Endowment for International Peace in Washington, D.C., listed 33 previous proposals by members of Congress or others in govern ment to reform the ins.

"It's like being a tax collector," says Jan Ching-An Ting, a profes sor at Temple University School of Law in Philadelphia who heads its immigration law clinic. "Somebody's always mad at you no matter what you do."

Reeling Under the Blows But while the ins is accustomed

to tough sledding in Congress, the increasingly serious death threat to it comes at perhaps the most diffi cult period in its history.

The laws that govern immigra tion are tougher in many ways than ever before, and more complex. The Illegal Immigration Reform and Im

migrant Responsibility Act of 1996 gave the ins more power, for in

Michael Higgins, a lawyer, is a reporter for the ABA Journal. His e-mail address is higginsm@staff. abanet.org.

ABA JOURNAL / JULY 1998 63

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stance, to deport aliens who commit minor crimes and to bar them from re-entering the country.

In addition, the ins is simply busier than ever. More than 1.6 million people applied to become U.S. citizens in 1997, almost triple the number of requests in 1994. The agency processed 140,000 polit ical asylum requests this past year, up 160 percent since 1994. And the ins deported 113,000 people last year, up from about 40,000 in 1993.

The agency has struggled under the deluge. Applicants for citizen

First, ins officials in Miami mis led a congressional delegation in 1995 about the effectiveness of their operations in that hotbed of migra tion from the Caribbean and Cen tral and South America.

The second blow to the ins was the now-infamous Citizenship usa program in 1995-96 to naturalize more citizens faster, but which re sulted in thousands of people be coming citizens without a proper criminal background check, ins offi cials say they are now investigating 6,323 cases in which applicants did

LILLIAN HIRALES A National Council of La Raza ^Jicy analy^she favors a Clinton administration plan to split off the ins' border patrol functions from its other duties.

ship now may wait 18 months or more for a decision, compared to a

typical wait of six months just a few years ago.

"Everything's taking longer," says Oscar Levin, a Miami lawyer whose practice includes helping multinational companies transfer managers between countries. "One day I want to abolish the whole agency. The next day I'm sympa thetic to the fact that they're over whelmed, understaffed and under funded.''

The ins won't find much sym pathy for its problems from most Republicans in Congress. Some hold a dim view of liberal immigration policies, and they see badgering the ins as a way to slow the flow of new comers.

But the ins hasn't helped its own cause, either. At least two inci dents have further fueled criticism of the agency in Congress.

64 ABA JOURNAL / JULY 1998

not reveal past felony convictions or arrests on serious criminal charges.

But even before the foul-up, to some Republicans the whole pro gram looked like an election season

attempt to rush new, and presum ably Democratic, voters into the system.

Following those incidents, the attitude in Congress became one of zero tolerance, says David Martin, a former ins general counsel who now teaches law at the University of Vir ginia in Charlottesville. According to Martin, Congress is saying, in ef fect, "We want a Cadillac"?a sys tem that has no problems.

The outlook for the ins did not improve in September 1997, when Congress received a major report from the U.S. Commission on Im migration Reform, a creation of the 1990 Immigration Act.

The bipartisan commission con cluded that the ins suffered from

"mission overload" and was, under its current structure, "set up for failure."

The commission recommended abolishing the ins and dividing up its duties among other federal gov ernment departments: employment related tasks to the Labor Depart ment, visa and citizenship requests to the State Department, and bor der enforcement to a new Bureau for Immigration Enforcement that would be created at the Justice De partment.

Then in January, an audit by kpmg Peat Marwick slapped the ins for bad customer service and mis management. The consulting firm, which was hired by the Justice De partment to conduct the audit fol lowing the Citizenship usa debacle, found paperwork mistakes of some kind in 90 percent of the agency's naturalization cases.

Even the Clinton administra tion readily admits that many points in the commission's report are valid.

Administration officiais have ar

gued, however, that breaking up the agency would only compound the problems.

At a contentious hearing of Rep. Rogers' appropriations subcom mittee in March following the ad ministration's proposal to divide, but not abolish, the agency, ins Com missioner Doris Meissner main tained that the administration plan would untangle the agency's con

fusing chains of command, increase accountability and prove to be less costly than a complete dismantling.

What's more, said Meissner, the agency was getting results on the enforcement side and was be ginning to fight its way through the backlogs of citizenship applications. "We are proving that when we are

given the resources, we can do the job," she testified.

Meissner's testimony failed to convince Rogers, who asserted at the hearing that the ins was "en trenched with inefficiency and in eptitude." Rogers added, "There's no way you can fix this agency."

Seeking the Right Reform Immigration lawyers, howev

er, widely oppose dismantling the ins, as Rogers' proposed Immigra tion Reform and Improvements Act would do.

They worry that the Labor and State departments would never give high priority to immigration work. It already can take more than

ABAJ/RICHARD NOWITZ

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two years to obtain from the Labor Department a labor certification that recognizes a shortage of U.S. work ers in a given field, says Miami

practitioner Levin. "It makes the ins look like the most efficient gov ernment office I've ever run into."

Meanwhile, the rap on the State Department is that its con cerns with diplomacy and related responsibilities would never leave much time, resources or focus to handle citizenship and tok visa requests.

"Instead of responsible re- flf forms, the commission would recklessly rip the ins apart," according to Jeanne Butter field, executive director of the I American Immigration Law- I yers Association. "We would be I facing mass chaos." ^

Immigration lawyers are more receptive to the Clin ton administration's proposal. Some say creating a clearer separation between the agen cy's service and enforcement functions could foster more balance in its priorities. fe^ "I think the word has gone ?l out that enforcement is the pri- jf} ority," says James Smith, who heads the immigration law clin- ? ic at the University of Califor nia at Davis. "I can just feel this com

ing off the walls at ins from '96 on." Smith tells of a case in which

he represented a legal resident who was accused of driving some neigh bors?who were illegal aliens?from Southern California to the San Francisco area. But the man did not aid their trip across the border in any way and wasn't paid for his ef forts, Smith says.

"The immigration prosecutors took the position that he should be summarily deported," Smith says. "They said there was nothing to talk about. That was just a sea

change in attitude. It would have been unthinkable before 1996."

Imposing a clearer division be tween key functions in the ins is "a definite way that we can start the conversation," says Lillian Hi rales, policy analyst with the Na tional Council of La Raza, a His panic advocacy group based in

Washington, D.C. Hirales says La Raza hopes a

split structure would make ins dis trict offices more responsive to or ders from headquarters. "Hispanics overall have such disdain for the ins" due to what they see as unfair

treatment by enforcement officers, Hirales says. "Maybe with a narrow er chain of command, there will be more accountability."

But former ins general counsel Martin cautions that a split ins does not necessarily mean more balance between service and enforcement. "It may be that the adjudication por tion will shrink in importance and

The INS is expected to be supercop-to find, flush out, track down and catch suspected illegal aliens.

not get the attention it needs." A big shakeup at a troubled

agency has a certain visceral ap peal, acknowledges Martin. But he argues that the best strategy is to stay the present course as the ins uses its newly enhanced budget to update computers and make other changes. "It's a lot of small answers that you need to work on patiently," he says.

A third proposal to reorganize the Immigration and Naturaliza tion Service also has been floated.

A report by the Carnegie En dowment recommends elevating the ins to a cabinet-level agency, anal ogous to the Environmental Protec tion Agency. That would raise the agency's profile and consolidate im migration responsibilities.

For instance, a foreign worker seeking to enter the United States today may need to obtain ins ap proval, a work certification from the Labor Department, and a visa from the State Department.

"If these were all one agency, you'd have one file," says former ins official Alexander Aleinikoff, now a professor at the Georgetown

_;_ University Law Center in

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^^H^^V^B^I^^Hh^^^^^^H?? lawyers, what the ins needs _^^^^H^?j^^^^^|^^^^^^flH? even more than reorganiza

hIHP^^?^K^BKK?^K^SIm stability. ? ^ne aSency "tends to

0 |? ?

/?|^H|^||BpWWWB^B lurch ?rom crisis to crisis," L^A-PIH^^'' ?'''^ says Temple University's

^ 1%::: : JL: JH.... ^s^^HI Ting. "It responds to whatev er political pressures are

brought to bear based on today's headlines." And every time the ins tries to catch up with new man dates from Congress, it slips fur ther behind because it is likely that Congress has written new, more

complicated laws, Ting adds. To some degree, those shifting

signals to the ins reflect concerns about jobs, race, welfare, cultural differences and power.

There are signs, though, that indicate current concerns about im

migration and the performance of the ins may be peaking.

In 1996, the country admitted 916,000 immigrants, a 27 percent increase from 1995. Now the elec tion year rhetoric against immi grants has cooled, and opinion polls show a greater public tolerance on the issue. Some Republicans in Con gress seem less willing to back anti immigrant measures for fear of of fending Hispanics, Asians and other ethnic voters.

That calmer mood may give policy-makers an opportunity to think about the long-term future of U.S. immigration law, and what role ?if any?the ins will play in carry ing it out.

66 ABA JOURNAL / JULY 1998 ap photo/the cedar rapids (iowa) gazehe/buzz orr

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