|
|||
|
|
|
|
|
|
Immigration and Terrorism
November
6, 2001 Moderator: Panelists: Bill King, retired Border Patrol Agent Mark Reed, former INS agent Peter Nunez, former U.S. Attorney from San Diego Ed Grant, Board of Immigration Appeals MR. KRIKORIAN: My name is Mark Krikorian. I'm executive director of the Center for Immigration Studies. We're a think tank here in Washington on the web at cis.org and we examine and critique the impact of immigration on the United States. Before September 11th, examining the economic impact of immigration, the fiscal impact, social and political impacts. Since September 11th, the whole debate has shifted to focusing on the security aspects of immigration control. These issuing overseas, the inspection of foreign citizens at our airports, preventing unauthorized border crossings, tracking foreign students, what have you. And there's been a
lot of legislative activity on this, at least a lot of sound and fury. And
there's been a lot of discussion of this sort of the kind of panel discussions
that we're going to have today. The problem is that
all the discussion up to now has been by politicians, by pundits, policy
analysts and I can say this as a policy analyst myself and a want to be pundit
at some point, that there's nothing wrong with people like that. But the
people who actually do the work that is being discussed have not really been
consulted or haven't really had an opportunity to air their opinions, their
experiences, and their insight up to now. Certainly not publicly, and so we
thought it would be a profitable, useful exercise to do just that. And so we
brought the panel here before you to give some of their suggestions, some of
their insights, based on their experience. Some anecdotes about how the actual
-- how immigration control actually works and I'm going to give each of them
about 15 minutes to talk and we'll have a -- I hope enough time for Q&A
afterwards. And if they're willing, obviously those of you who are reporters
or others, they'll be able to talk to you afterwards or later. Let me just briefly
introduce everybody in the order they're going to talk and then we'll get
started. On my left is Jessica Vaughan. She's a former
foreign service officer, a consular officer who actually participated in the
visa process, was lied to repeatedly for months on end by people trying to get
into the United States. Also as the former assistant director of Center for
Immigration Studies has written extensively about other aspects of the
immigration issue as well. Bill
King is a retired Border Patrol Agent. A long-time veteran of the Border
Patrol. Among his numerous responsibilities there, he was head of the Border
Patrol Academy at one point and also administered the 1986 amnesty for illegal
aliens for the western region of the United States which is where much of the
action was as you can expect. Mark
Reed is a former INS agent. At one point an inspector at border crossings
in Washington state. Also involved in anti-smuggling activities and was most
recently regional director of the central region, the central part of the
country. Next is Peter
Nunez who is former U.S. Attorney from San Diego and under the first Bush
administration was what I like to call border czar although he didn't actually
have that on his door. He was liaison for the various agencies. He was based
in the Treasury Department involved in enforcement on the Mexican border. And last but not
least is Ed Grant who is now a member of the Board of
Immigration Appeals, which is a kind of Appeals Court for these -- essentially
a judge in Appeals Court for the immigration judges. Before that, was a
counsel at the House Immigration Subcommittee and actually helped write much
of the 1996 immigration bill. And before that was an attorney at the
Immigration Service. So without too much
further ado, I'll start with Jessica. MS.
VAUGHAN: Thank you and good morning. When we talk about
immigration policy in the context of national security or in the context of
homeland defense, most of the attention of policy makers and opinion leaders
has been focused on the Border Patrol, the INS, and a lot of people seem to
forget that there is another gate through which people who wish to enter this
country need to pass and for most of them that's the U.S. Consulate overseas.
We have about 900 foreign service officers and working in about 220 visa
issuing posts overseas. Part of the problem
I think is that the State Department has actually forgotten about its role in
border security and its role in national defense. And the evidence of this is
not only what happened on September which was clearly at least in part a
failure in immigration policy, because we know that about -- at least 13 of
the hijackers were given permission to enter this country by somebody, more
than one person. They were given permission to enter by a consular officer and
they applied for admission and were allowed in by an immigration officer. At
least most of them to the extent that we know for sure. The other evidence
is -- can be found in what we know about the illegal immigrant population in
our country. We don't have firm numbers obviously, but the INS thinks that
about 40 percent or three million people who are out of status, illegal in the
country today, are they call visa overstayers. People who are issued a and
given permission to come here and decided to stay longer. So that's about
three million mistakes who are here. And part of the problem is is that we're
not really learning from them -- from those mistakes. It's not really a good
track record. That's probably maybe as much as a 10 percent failure rate in
our visa issuance policy. And there have
been, to be fair, so there has been some attention focused on what to do about
the overstays. How to keep that from happening. But most of that has been
focused on the people themselves, the overstayers themselves and not on how
they happen to have been issued a visa in the first place. And there are a lot
of reasons that happens and as we know now, these mistakes have serious
consequences. I think the major failure on the part of the State Department
has been the way it views its mission. Rather than considering the issuance of
visas to be a matter of national security or homeland defense, it approaches
the issuance of visas as a management issue. A question of work flow that
needs to be dealt with. A vast number of applicants that have to be dealt with
quickly with limited resources and limited staff. And the distinct trend over
at least the last eight years is to approach it that way. How can we do this
more efficiently, more pleasantly? Not how can we make better decisions. In my view, the
mission of the State Department with respect to visa issuances ought to be we
need to get the people in here who are qualified as efficiently as possible
and refuse admission to ideally everyone who is not qualified. Of course,
there's some backup that can happen on the interior as well but that's -- the
basic problem is one of attitude toward the issuance of visas. And this has been
evident in the kinds of statutory changes the State Department has pushed for
over years. In 1994, it pushed for a change that shifted a significant chunk
of its workload over to the INS for no real good reason from the standpoint of
quality of decision making. That's 245(i). And also their reliance on
technology to expedite the process and some other things. I think we need to
look really carefully at the way the visas are issued. There have been some
improvements based on technology. Notably the machine readable visa. Of course
there -- and that has been great as far as establishing the integrity of the
document itself so that they
can't be forged easily. And the lookout system has been computerized. A lot of
attention has been focused on the holes there as well and there are some
important ones. The State
Department has not been given access course to the FBI information that might
help it in rooting out people who are known by the FBI to be not worthy of
issuing a visa to. A lot can be done
to -- probably the best way to approach this is by improving the IBIS system,
the Integrated Border Information System, by adding important FBI data. The
State Department has been considered not a law enforcement agency so they've
been denied access to this for non-immigrant visas and a lot of attention has
been focused on that. It does have access
to the FBI database for the purposes of issuing immigrant visas. But the way
it got that is to actually pay an FBI employee who sits up in the visa
issuance center in Portsmouth, New Hampshire, running name checks for the
State Department. And I think probably anybody in this room can think of a
better way to accomplish that with respect to non-immigrant visas. And we have
the technology to do that. Another weak link
in the system that could be strengthened is clearly some sort of biometric
identification system can be -- would enhance the visa itself as a document.
Especially if it were actually used by other agencies when the applicant
arrives here so that we create a single file on a visitor that would stay with
them and that could be accessed by INS. This can be done by fingerprint
technology or facial recognition technology. The machine-readable visa already
has a photo on it that is digital. The technology exists to deploy that for
the purposes of national security so that the immigration officer sitting at
the port of entry can cross check the decision of the consular officer to make
sure that the person who was issued that visa is actually the person who's
standing in front of him. That's certainly an important tool that we have that
we could use. It's not cheap but it can be done. And as I said, the
State Department has been very good at looking for ways to use technology to
increase its efficiency and its effectiveness in the case o the MRV's. But also one
problem I think is that there are certain things that technology cannot do for
a visa officer. Just as a doctor needs to sit and talk to an see a patient
that he or she is trying to diagnose, a consular officer really needs to see a
visa applicant to make sure that the person standing in front of them is
actually the person that the application and the documents that they're
reviewing says they are. A lot of attention has been focused on the fact that
oh, the consular officers only have two to three minutes to interview
applicants and that’s not enough time to make a determination. What should be of
more concern to people is that only, to the best we can tell, about one-fifth
of people who apply for non-immigrant visas are actually interviewed at all.
The State Department has been moving toward drop boxes, group applications via
travel agencies and other ways to avoid having to actually look at the people
who are asking for permission to enter. And I think we need to step back and
try and -- particularly in high risk countries where there's a known risk of
people who are going to be trying to gain entry who shouldn't be. And also for people
who are asking for permission to stay here for a long period of time, student
visas, a lot of the attitude when I was a consular officer was that all of the
student visas are probably a pretty good bet. We don't need to look at them
too closely. When in fact our experience has told us that that is one of the
categories that terrorists and others have chosen as a route. Not just
terrorists, people who simply want to -- are looking for a back door and don't
have a relative to sponsor them, will use to gain access and to gain admission
to the country. So again, and we
need to move back to basics. We need to start looking at the fact that we've
made three million mistakes and that they're all here and quite frankly be
tougher on who is offered admission to this country. The State Department is
not -- now learning from its mistakes. This can be accomplished I think
through better training, more time spent, through reinforcement of the
national security mentality, if you will, at post, but also there are some
tools and some feedback that can be provided to consular officers so that they
can in fact learn from their mistakes. One of these is an
entry/exit system and again this is a proposal that has been made. The fact
that we need to find some way to figure out how many people are not leaving
when they should. The visas are now scannable or machine readable. There's no
reason why people cannot be expected to leave a mark when they leave in some
way. It wouldn't be that hard to do to -- whether it's through expecting the
airlines to scan the visas on people. People should be
required to tell us when they're leaving so that we know who hasn't gone. And
there are a lot of reasons to do that. One of the most important is for
interior enforcement purposes so that we know who is here who shouldn't be. It
would also serve as a deterrent I believe to overstayers, to people who are
considering staying longer than they should if they know that they're --
somebody's going to pay attention to that, they're less likely to do it. And
also this would give -- would create a body of information that could be used
by the department to -- real-time information to change the way they're
issuing visas. If you know that a large number of guys in their 20's have
recently come -- been admitted by virtue of the fact that they wanted to
attend Miami Dade Community College which is one of the schools I saw a lot
when I was serving in Trinidad, we know that they, you know, dropped out after
the first semester, someone can go back to post and say you need to start
taking a closer look at these people, this group of people, because we now
have good information on them. And officers are
not held accountable for their mistakes. And I'm not suggesting that, you
know, we need to go find who issued Hanni Hanjour that visa and they need to
be fired. But there is a way to hold consular officers responsible for their
attitude. And currently quality of decision making is not a factor in your
performance. And if you go back and look at my performance review from when I
was head of the NIV section in Port-au-Spain, you won't see that I was good at
detecting fraudulent birth certificates or that I set up a program with the
forensics officers in the local police department to help us figure out which
documents were bad or that we captured or we caught a bunch of people who were
honoring fraudulent documents. What you'll find is that, well, Mrs. Vaughan
was a little bit slow but she was very, very nice. And that was considered a
good performance review. But geez, I'm going to be promoted on nice? Is this
really what I'm supposed to be doing here? And that culture really needs to
change. And there is a way to do it. And the entry/exit system would be one
important tool to do that. There's a way to do
it in the short term, too. The INS has information on who is adjusting, you
know, in this country. Who is -- who's gotten here and said well now I want to
be a student or now I want a job here. That information can be shared with the
State Department and it is not currently and that would be a start. There are other --
a lot of other issues that can be addressed. One is the staffing of the
consular corps. We shouldn't -- everyone who is a consular officer ought to
want to be there. It's now sort of almost like a hazing ground for new junior
officers and the approach of the department has been we want generalists, we
want people who know -- who have issued visas, who can think on their feet,
who have other skills that we're looking for. But we ought to also be trying
to recruit people who want to do the work and who are enforcement minded and
who are serious about a career in this kind of job. There ought to be
cross-training with the INS. It used to be people, when you were a newly
minted consular officer, you'd go spend two days in an INS port of entry and
watch people -- watch INS officers at work and I actually applied for that
training and was turned down because they wanted me at post issuing visas. But
we ought to get back to that. Give some cross-training. Bring some INS
officers overseas to start issuing visas. In the 70's there
was a consular specialist corps of people who were just hired just as the
State Department hires people to do financial tasks and information technology
and personnel work, they can hire consular specialists as well and that would
be a way to supplement the consular corps which is a better way in my view
than hiring spouses of foreign service officers who have no other sources of
employment, which does happen. The other important
thing that I think needs to happen is that the department needs to start
resisting the kid of statutory changes that severely undermine their ability
to make good decisions and to again focus on that other important half of the
equation of refusing people who aren't eligible. And specifically I'm talking
about sections of the law like 245(i) where people who have -- illegal
immigrants are permitted to adjust status within The people who are
applying for permanent residency ought to be interviewed and they ought to do
it from overseas. They shouldn't be given amnesty. They -- and those who are
ineligible, 245(i) as it was enacted in 1994 and as it now Congress is under
pressure to reinstate, allows people who are not qualified and get turned down
for their green card to stay here in effect because they're here already and
we don't go around deporting people who have their green cards turned down. We shouldn't be
issuing visas to people from states who sponsor terrorism at least without
much more scrutiny than they're currently receiving. We need to do a better
job, of course, of tracking student visas and we need to hold INS officers to
the same standards that we're expecting of State Department reviewers and that
is again, goes back to this business of depending on paperwork. People who
adjust status aren't interviewed. They ought to be, just as they are
interviewed overseas. So my time is up. I
could go on for a longer, but I'll give somebody else a chance. MR.
KRIKORIAN: Thank you, Jessica. Bill King. MR.
KING: Thank you. Someone once said protecting a nation means
looking at the legitimacy of immigration control as a Border Patrol Agent. I
don't believe truer words were ever spoken. And that this nation has failed
its citizens in this regard became painfully clear on September 11th. If it
wasn't before, it should now be universally recognized that our borders are
out of control and just how dangerous that is to this nation. It's been shown
also on the legal front that aliens applying for non-immigrant status to come
into this country are not properly screened. There is no tracking system to
follow them. There's no ability to tell whether they're maintaining status or
if in fact they're still in the country. We have no idea who they are, where
they are or what their purpose is in being in this country. We know that there
are almost nine million foreign people here in the United States illegally and
as Jessica said, roughly 60 percent of them have crossed our borders
illegally. The others, of course, have violated the terms specified in their
visas. But truthfully, they can be job seekers, criminals, disease carriers,
and I've arrested all of them and now they can be foreign agents and that's a
particularly dangerous aspect of this whole border control situation now. And because of
mismanagement, negligence, and political manipulation, the INS has lost
control of its functional responsibility to its citizens. They lost it a long
time ago. But it's not entirely the fault of the INS either. The Congress lays
more I think with -- I mean the fault lays more with the Congress and the
various administrations of late. With
very few exceptions, members of Congress have given short shrift to this
problem of border security and I'm not sure that you're aware of what's
happening, for example, along the Arizona border now but border area
residents, our own citizens, are suffering greatly at the hands of illegal
alien smugglers and drug smugglers. Their homes are trashed, vandalized,
burglarized, their animals are killed, their fences are cut, their property is
trashed, and I hear no outcry from members of Congress designed to protect
these people. They're pretty much on their own. They live under the constant
threat of retaliation by smugglers of both drugs and aliens if they speak out
too loudly about what's going on within their neighborhoods, but they're
almost all are carrying guns now for self-protection. This is dead wrong and
it's time that the Congress, instead of pandering to the cheap labor
advocates, the unions, and the ethnic, Hispanic ethnic minority groups, they
should start paying attention to what's happening to our own people, because
nowhere in this country are people more under represented than our own
citizens who are forced to pay for the cost for all of this foolishness. And
if the Border Patrol is to become a productive member of the homeland security
and defense system, it's got to recapture the border control of the border and
it's not going to do it with the forces it has at hand today. Both borders, as
you know, are sieves. Anyone can cross these borders today because we have I
think roughly 400 agents on 4,000 miles of border with Canada. The bulk of our
forces concentrated on the Mexican border but as -- they're wide open to the
terrorists who may be intent upon smuggling weapons of mass destruction across
these borders and believe me, they can do it. I have a personal
problem with the current law enforcement strategy on the border because it
seems they're concentrating all of their efforts and all of their personnel on
the immediate border and in most places, no longer have a backup situation. Al
Nelson, the former commissioner of immigration, used to describe this as
analogous to placing an entire football team on the line of scrimmage. It
really doesn't make a whole lot of sense. I've read in the
newspapers where alien smugglers once they reach a highway and load their
people into load cars, are no longer pursued, so that means they're home free. Checkpoints,
there's a series of traffic checkpoints across the entire Mexican border for
example. Some of them are closed. The sense in keeping the others open really
isn't there because with those closed checkpoints, the smugglers have an
avenue to the interior that they will use with great ease. But
I guess when it comes to control of the border, along with most retired Border
Patrol managers that I know, I strongly believe that the military has got to
be placed on -- in an assistance role to the border enforcement agencies. And
that without the immediate infusion of additional personnel, that border is,
particularly the Mexican border, is going to remain a sieve. I've heard talk
from members of Congress about doubling the force, the personnel force, of the
Border Patrol but realistically that would take years. As a former director of
the Border Patrol Academy, I can tell you that by the time physicians are
authorized through the Congress, the administration, you get into recruiting,
hiring, background checks, academy training, field training, and the
additional training facilities that would be necessary to double the force of
the Border Patrol as they say overnight, would realistically take years to
accomplish. So unless they put
the military on the border, it's going to remain the sieve it is right now.
There's no way around that because there's no other means of immediately
infusing that many additional people. There are arguments
present that the military is not trained for this, that they're not capable of
performing these duties, but that's nonsense. We are the best educated, best
trained military force in the world, and they are currently serving and
protecting the borders, the sovereignty of other nations, while our own remain
neglected. And that's got to be cured if we want to regain control. Every year, for
more than a decade, more than a million illegal aliens are arrested crossing
the border. And last year I think it was a 1,600,000 that were arrested.
Hundreds of thousands each year successfully evade apprehension at the borders
to take up residence and find jobs and this will now be true for any
terrorists that want to invade the country by the same means. Tom Ridge, who is
the -- and you know is the director of homeland security has said that solving
border control problems is one of the more important issues facing him today.
And to me, this gives considerable weight to the argument for the immediate
deployment of the military on the border. Another benefit
that might be realized from placing the military on the border once they
receive enough training to perform on their own would be the release of some
Border Patrol agents at least to assist the immigration investigators in the
interior where law enforcement -- immigration law enforcement is practically
non-existent. Immigration law enforcement in the interior is practically
dismantled except for the criminal alien program. I think the INS
should be directed to recruit the assistance of the city and state law
enforcement agencies to investigate the arrest or detention of aliens
illegally in the United States as provided for in the '96 Immigration Act. I really have some
serious problems about the control of the border. We saw what happened on
September 11th. Nobody could have expected that. And now we have these
wide-open borders that are just as vulnerable as the World Trade Center was
and I sincerely hope and pray that somebody will do something to get Congress
and the administration on line with supplying the people necessary to control
it all. In 1996, with that
Act, came the ability for civilian police authority to petition the INS to be
trained and to participate in the location and arrest and detention of illegal
aliens. But to my knowledge, after five years, the INS has not yet published
regulations governing the implementation of the program. To me this is
unforgivable because the assistance that could be offered by various police
authorities throughout the United States, in the interior particularly, would
be invaluable. The lack of
cooperation and communication between law enforcement agencies at the various
levels of government has got to be overcome if the nation is serious about
protecting the public from further terrorist attacks. As citizens, we
have the right to expect the closest level of support between the various
enforcement agencies and this is just not happening. And nowhere is it more
apparent than what's happening with the City of Los Angeles Police Department
special order 40 which expressly prohibits any cooperating with INS
investigators or border enforcement authorities, to the point I understand
we're now even for a special agent or a Border Patrol agent to enter one of
the several police buildings in the city, requires the permission of the
station commander. This is absolutely ridiculous. They're not allowed to even
share information relating to the illegal alien activity in that city and it's
become -- if it isn't the illegal capital of this country, it's very close to
it. But
to me, any agency at any level of government that fails to cooperate
particularly in these times, should have any federal funding they're receiving
revoked. Then we have
reorganization of INS. As most of you know, the Commission on Immigration
reform spent five years reviewing the practices of INS and the problems caused
between the two different functions that they share. One being enforcement.
The other being service operations. After that five year study, the commission
recommended that enforcement be separated from the service functions or
components and this has not yet happened. But it becomes even more important
today. I don't think any agency can operate successfully while trying to
control both service functions and enforcement functions. In my experience,
after 44 years, I can tell you that it hasn't happened with INS. There's talk about
moving the Border Patrol along with Customs and the Coast Guard into the
Homeland Security and Defense Agency and I would have absolutely no problem
with that happening. INS has shown
itself to be incapable of handling both aspects or both functions and I
certainly hope for the good of the country that they will either put it in
Homeland Security or separate the two functions while they remain in the
Department of Justice. Jessica mentioned
Senator Feinstein's proposal for the facial identification card for students
and I think it's a great idea but it doesn't go far enough. I think if they
used the 4994 which is issued to every non-immigrant coming into the country
and made it a secured document, it would provide for the tracking of all
non-immigrant visitors to this country rather than just the students. I think
her idea is a good one. It just doesn't go far enough because we do need to
know where these people are. I'll be short, but
finally if we are truly at war, it's both critically important and logical to
give high priority to the control of the nation's borders and to implement the
needed changes in our very confused immigration policy. MR.
KRIKORIAN: Thanks, Bill. Mark Reed is next. MR.
REED: Thank you. I'm going to break my presentation down to into three basic
pieces. I'm going to tell you a little bit about myself which I love to do and
do a little bit of storytelling which I love to do and then I'm going to tell
you what I think needs to be done which is we may be here all day then. I am
going to keep it short. What I would like
to do though before I get started is to let you know that I'm going to make
some very broad sweeping statements. I know that they are. If there's some
interest in following up with them, I'd be more than happy to but there's so
much to say in minutes, that you just kind of need to throw some of the
bullets out. I would ask you as
I start talking though to think about two things that both Jessica and Bill
brought up and that is the magnitude of the numbers. If you think about the
numbers, you realize how overwhelming this really is and when we try to think
about fixing this with old practices, it sometimes just doesn't work that way.
How many people would we have to remove from the country every day for the
next four or five years, just remove those people, presuming that we didn't
have anybody replacing that illegal population. The numbers are really
staggering. Bill holds Congress
responsible for a lot of this. They're a part of it. The agencies are part of
it. But I also believe that the nation plays a very big role in this as well.
So I'm going to try to expand it beyond Congress and specific agencies. I
started my career in Bellingham, Washington, as an immigration inspector out
of Washington State University. At that time, I knew nothing about
immigration, either the agency or the issues. I was looking for a job and was
very fortunate to find my way into INS. I was an idealist then, I still am
now, and I probably always will be. I just simply think that things are
supposed to work the way things are supposed to work. And when they don't, I
don't get it. My career was built
around the enforcement side and I enjoyed it very much and I had the extreme
privilege of working with a lot of very, very, very good people. Two -- three
of them sitting here with me today. I was able to watch people who really knew
the issues and struggled with the problems and really led my way of thinking.
And you're going to hear a lot of what I stole from them as we go through
this. As a result of my
idealism though, I was oftentimes frustrated in INS. I didn't understand what
we were doing. I didn't understand why we were doing it. I -- and quite
frankly a lot of it didn't make sense to me. And I wrestled with that really
quite a bit throughout my career. But the last four years, it started coming
home to me that I really didn't understand the bigger picture. I
believe that INS functioned exactly the way INS was supposed to function. I
believe that it was part of an overall scheme and the nation got out of INS
exactly what they wanted out of INS. INS wasn't conflicted. I believe the
nation was. It wasn't INS that didn't have the coherent immigration
enforcement policy. The nation didn't want one. It wasn't INS that was
ineffective and driven by less than substantive priorities. INS was expected
to be ineffective and it was convenient that implementation schemes did not
restrict flow across our borders, legal or otherwise. It wasn't that INS
couldn't do the job. The nation didn't want to be encumbered by the
consequences. I think things have
changed now. At least people are talking about changing those opinions. Years
of neglect, conflicting policy, inadequate funding of the entire border
infrastructure and quiet acceptance of failure has created a breach in our
national security that has been realized principally due to three emerging
forces. The first obviously
is September 11th and terrorism. Our borders are wide open. I agree with Bill,
this nation just simply provides too many opportunities for terrorists to
enter this country and stay at their will. There is no risk; there is no
presence, law enforcement presence active therein; there is no risk attached
to coming to this country and operating as you will. Before that though,
I think there was another emerging force that was starting to push the border
management issues to the table and that's our economy. I believe this nation
was rapidly and is rapidly engaged or has been engaged in development of a
global economy. That has been realized as our future and we've been working
very hard to do that. A piece of engaging in a national economy is to have
borders that work, that function the way that they are supposed to, that can
balance the enforcement issues as well as the facilitation issues. I strongly
believe that our economy is a national security issue. I also believe that
Mexico and Canada recently have been recognized more than they have in the
past as being part of our national security. They are being recognized more as
part of where our economy needs to be and I think there has been a real effort
to really form better partnerships in terms of developing our security and
economies. The border now has
a profound impact on national security and development of regional and global
economies. Borders that provide easy access to terrorists, criminals, and
other unlawful entries do not work and are a threat to our national security.
Borders that are closed and adversely impact the nation's economy are a threat
to our national economy as well. And any border that would isolate us from our
contiguous neighbors will leave us standing alone. These are opposing forces.
Each demands the same thing, a well managed border. And I will say this
to the end, a well managed border is a secure border. Mark wanted some
story telling that might add some credibility to these statements that I just
made. I don't know if that's possible, but let me take a shot at it. In
1976, I worked as a special agent in San Francisco. I was a trainee and I was
assigned to a 20-person unit that was responsible for working all of northern
California. We were supposed to go out and people who were in the United
States unlawfully, apprehend them, and arrange to get them removed from the
United States. For almost two years, we would take an old high mileage
government vehicle out on the streets of San Francisco in search of illegals.
Every day we would fill 23 that sedan, write them up and arrange for their
departure. One day we inadvertently caught more than we could get in the
sedan. The journeyman officer turned to me and said, "We're going to have
to let one go. Pick one out." I refused. It went against my principles.
He said, "It's okay. It's a common practice, we've got to leave one for
seed." Again, I refused and I was quickly identified as an individual in
the unit that just didn't get it. I was taking the job a lot more seriously
than people thought I should be. They understood that I didn't understand the
numbers. They thought I thought I could be effective. Then at work site
operations, I find myself confronted by an employer accusing me of harassment.
After all, everyone knew that everyone else -- that no one else would perform
that kind of work and that these were good workers, that these were good
people, and everyone was hiring and besides they would be back before the week
was out. Yes, I knew that. I was a law enforcement officer doing my job which
was important to the security of the nation. And how could any respected
businessman and community leader say things like that to me. I just didn't
understand the dialogue. I couldn't see the general acceptance by the
community of migrant labor. The dynamic of the private sector that depended
upon migrant labor, the influence that these businesses had, and I had no
concept of the interest and power of Congress at that time. I couldn't see
that the people I arrested were becoming part of the fabric of community
development. Still blind in
1980, I took an opportunity to move into a newly formed enforcement group
targeting alien smuggling. For four years, I chased alien smugglers around
California, Arizona, Oregon, Washington, Hawaii, and Alaska with about 100
other officers specializing in that same venture. But our success was being
measured in numbers, not impact. And again, just think about how that doesn't
work when we start measuring in terms of numbers. Efforts to expand
the program became futile. Efforts to establish an intelligence capability to
at least identify the smuggling threat were blunted. Attempts to integrate an
anti-smuggling strategy and other enforcement strategies were ignored. I
didn't get it. I didn't realize that the concept of alien smuggling was so
repugnant to the country that the nation needed to take a stand against it,
but not enough threat to shut it down. The program, not the alien smuggling
organizations, was dismantled after a few years. Then I moved on to
district management operations in Honolulu and San Antonio. Both offices had
significant airport inspection programs. There I was introduced to the
influence of the airlines, hosting community, and the airport authority in
terms of their participation in the inspection process. Expansion of airport
operations and indirectly the community were deemed to be part of marketing
strategies aimed at international visitors. The philosophy was that if people
were treated well, they would come back, continue to travel on the same
airline and spread community goodwill that would attract other travelers and
investors. Processes that
detracted from the community's capability to market itself were unacceptable.
The power of the community drove home the concept that good government and
agency interests needed to be balanced to be effective. Let me fast forward
to 1995. At that time, I was invited to participate in a grand border strategy
as a district director in San Diego. This is the one Bill King loves so much.
The strategy was everything I thought INS was supposed to be about. I believed
it to be a multi-year program centered on creating a border with Mexico that
worked. Unlawful entry between the port of entries would be deterred. Port of
entry infrastructure would evolve to deter unlawful entry while facilitating
traffic. A parallel alien smuggling strategy focused on dismantling smuggling
corridors to and from the borders was to be implemented. Interior enforcement
strategies at destination points focused on the magnet employment were to be
implemented. And for the first time, I saw an effective dialogue established
with Mexico about working on border enforcement issues together based on
bi-national interests. I was in heaven. I thought I'd finally gotten to be
where I wanted to be and I was very excited about the process. My piece was to
bring law and order back to the largest land border port of entry in the world
at San Ysidro, California. Along with other counterparts in Customs, we took
the port back, established enforcement presence and effectiveness at all time
highs. We rebuilt the port of entry that functioned and allowed the regional
economy to prosper. It took a lot of very hard work by the rank and file of
both agencies. It also took an infusion of resources, money and most
importantly, community support on both sides of the border. When it was
completed, it was designated as a model and was supposed to be exported
nationwide. It was my first real appreciation of the enforcement. The credible
-- it was my first appreciation of the importance that a credible enforcement
had on creating an environment conducive to commerce and community needs. I
championed the border strategy then many times. In 1998, I was
promoted to a regional director in Dallas. The challenge to continue building
the strategy. I had responsibilities for a large portion of the Canadian and
Mexican border as well as many states in between. Operation Gatekeeper already
had a foothold in Texas and was expected to expand across Texas and New Mexico
rapidly. The ports of entries were expected to grow into the San Ysidro model.
The alien smuggling corridor strategy was to be initiated. Detention processes
demanded revamping and were to be revamped to provide better access, reduce
time people were being detained, and most importantly effect timely
departures. I was also
challenged to provide a more effective interior enforcement approach targeted
towards egregious employers and of course, reduce the adjudication backlogs.
This was the opportunity I was looking for throughout my entire career. But I
was in for a learning curve of my lifetime. I learned that government
institutions as well as the nation preferred change in small doses. Let me
explain. A budget shortfall
of $1 million submarined the port of entry initiative. The support for
expanding resources essential to the San Ysidro model and identified as
critical to effective border management disappeared as did the entire model.
Preservation of an arbitrary budget process was more important than an
opportunity to effectively manage the ports of entry. A detention system
to address core values of all interests to include advocacy groups, foreign
governments, the removable alien and the INS was discarded due to an internal
process issue in an unfortunate decision to name it the Hub Site program. I ended up before
Congress declaring that all efforts to continue work on such a program would
be abandoned. They were. Deporting people, deporting more people wasn't
necessarily in the government's best interests. Then Operation
Gatekeeper was stopped in its tracks as soon we were able to divert the flow
of unlawful migrants through the most densely populated border communities
despite demonstrated capacity to expand this program border wide. The nation was not
ready to stop the flow of migrant labor into the country. Likewise, the alien
smuggling strategy was put on hold and still is and checkpoint operations
traditionally regarded as essential elements of border control have come under
attack one by one. The most telling
experience, however, is a story of Vanguard which was a major interior
enforcement operation designed to lock out unlawful migrants from the
workforce in the meat packing industry nationwide. It was initiated in
Nebraska and was supposed to move forward quickly. When it was realized that
it was working, it was shut down for some very legitimate concerns about
effect on local economies, families and good government. But that was about
two years ago and it's still being studied. It's much like Gatekeeper. Sound like sour
grapes? I hope not. I learned a lot from each of these experiences. Each of
these instances point to the elements that are essential to effective border
management but were deemed by various factions of the nation to be in conflict
with some other national interests. I think these short stories speak to the
conflict this nation has with border security. Let me talk just
very briefly about some of the things I think that need to be done and need to
be done right now. Follow through with Gatekeeper and close the gaps, it can
be done by deploying technology and agents. Make people enter through the
ports of entry. Provide lawful mechanisms for essential workers to enter the
country and be monitored. Do not imprison them here. Do not create a system
where they come here illegally and cannot get back and forth across the
border. It just puts the wrong incentives in place. Stop granting six-month
and indefinite stay non-immigrant visas. Stop allowing for extensions of stay,
change of status, and adjustment of status absent very compelling
circumstances. It's okay to ask people to go home to take care of that
business. Monitor compliance. Establish a law enforcement presence in the
interior. Stop employment of unauthorized worker national ideas not necessary.
Make the port of entries functional. We know how, we already have the system
in place, we know -- designed. Use technology but do not allow it to paralyze
the work and most importantly, embrace Mexico and Canada as partners in this
vested interest. Running out of
time, hopefully we'll be able to talk about this more a little bit later on.
It's my profound conviction that the closed borders are not secure borders.
Closed borders will imprison the character, soul and economy of the nation.
The most secure border is a managed border and I think the nation has some
soul searching about what it really wants to do. If we continue to allow the
borders to porous and continue to have a rampant infusion of illegal migrant
labor into this country that is uncontrolled, these other issues that we try
to build around it cannot work. That's -- thank you. MR.
KRIKORIAN: Thanks, Mark. Peter Nunez is next. MR.
NUNEZ: It's always a question whether it's good to go -- better to
go at the beginning of these panels or at the end because you never know
whether the people are going to steal all your stuff or are you going to find
yourself disagreeing with one or more of your predecessors. So to some degree I
think I'm going to overlap with what a number of the other speakers have said
because we have -- many of us shared our work experience for parts of the last
30 years I guess. Let me start off by
saying that in response to one of the key points that Mark keeps making about
the nation, the nation's attitude toward immigration. Depending on how he and
you use that phrase or that term, I'm not sure if I agree or disagree because
my view is the American public, the American people, have been on the record
for decades as supporting reduced immigration and no illegal immigration. On
the other hand, the special interests in this country have dominated
immigration policy for the last 30 years and they are very powerful special
interests and they have overcome and overridden the views of the public. So if when we say
the nation isn't ready for our coherent policy, if by the nation we mean the
special interests that don't want a coherent policy, Mark's entirely correct
and I agree with that 100 percent. If on the other hand we mean that the
people don't want a coherent immigration policy, that's not correct because I
think the people have been waiting in some desperation for someone to fix
these problems. We saw it in the late 70's which led to the Hesburgh
Commission. We saw it in the movement that resulted in URICA in 1986. We saw
it again in the early 90's with Prop 187 in California. We saw it -- which led
Congress in '96 to take some actions and I think we're seeing it again now in
a whole different context. My -- I comment
this having served as a federal prosecutor in San Diego for 16 years from the
early 70's until -- through 1988. We were the -- we were then and the district
still is, the busiest criminal district in the United States. We average
somewhere around 7,000 criminal prosecutions a year, about 5,000 of which were
immigration related every year. That has changed now under more recent
administrations. They have de-emphasized the prosecution of immigration cases
and have, not a criticism, they've just had other -- they're just sort of
inundated with the drug problem which was always -- has always been a factor. And one of the
things that we know about border control is that if you don't have control of
the border, you don't have control over any kind of crime that occurs on the
border. So if illegal aliens can get through the border, so can drug dealers,
so can terrorists, so can any other person intent on committing a crime. My view generally
is that Congress has delivered, intentionally has delivered, a system that
doesn't work. It's built on shadows and mirrors to temporarily mislead the
public into thinking that actions are being taken to address border issues
when in fact most of the things that have been done have been ineffective. And
I'll go through some of those things as we go along. My first
observation is that INS, the Border Patrol, the other border agencies, but
specifically INS and the Border Patrol, have never been a popular agency in
government. The Justice Department, the Congress, the executive branch, have
always viewed INS as a not essential agency. And that has led to funding
problems, lack of personnel, lack of equipment, lack of oversight, and it's
only when a disaster occurs that everyone starts trying to blame INS for
whatever it is that's gone wrong. In my view, while INS certainly has to take
some share of the blame, INS is doing what Congress told them to do with the
resources that Congress has given which generally have not been adequate. And
have in many instances placed obstacles in the path of INS to perform its
functions. So among federal
law enforcement agencies, INS was always sort of the bastard stepchild
certainly of the Justice Department and probably of most federal law
enforcement. And when -- I can just imagine every year when the Attorney
General sits down to make up the budget increase or the budget proposal for
the Justice Department and the FBI comes in and says, "This is what we
need" and the DEA comes in and then the marshal service and the Bureau of
Prisons and last but not least, the runt of the litter has always been
historically INS. Now in the last
five years, their budget has zoomed up and that's good. But if they had done
that, if they had addressed that issue five, 10, 15, 20 years ago, we wouldn't
have some of these problems today. Which leads to the
second observation that both INS and the Border Patrol and to a lesser degree
Customs, part of the problem is that the executive branch hasn't supported
these agencies adequately and the other part of the problem that Congress
hasn't so the dynamic between the two is similar. Sometimes it's budget issues
pure and simple. It's money, it's dollars, what's available. And sometimes
it's I think more sinister. It's the influence again of special interests that
have intentionally handstrung some of these agencies to prevent them from
being as effective as they can. Part of the problem
is that Congress, at least in my view in the last 15 years, has compounded
this problem by the legal changes that they have made that have overwhelmed
INS. And I look first to 1986 and the amnesty provision which didn't just
create 2.7 million new legal immigrants, but everyone of those people then
became eligible to bring in family members under this system of chain
migration family reunification that has dominated our immigration policies
since 1965. So we took an
agency that could not keep up already, we added 2.7 million new people, they
had to be processed and then over time as they were naturalized or even as
they were legalized, they become part of the priority system and allowed to
bring in more people. So the workload itself just expanded almost
exponentially. The same thing
happened in 1990 when Congress raised the caps, reordered the priorities
slightly, and that itself has led to the I think unprecedented increase in
legal immigration over the last 11 years now where almost a million people,
legal and illegal, have been -- about 800,000 legally I think have been --
have immigrated to the US and that doesn't even mention the millions of 20
non-immigrants that are being processed starting as Jessica said first perhaps
at an embassy but then at some point INS has some responsibility or we think
they should have some responsibility for dealing with these non-immigrants. So
the workload is just overwhelming. So big surprise that INS can't do any of
its jobs well. The most shameful
example of this -- this all leads to shortcuts and problems within the agency.
And the most shameful part of it was in 1996 when we saw this politically
driven effort to naturalize as many people as we could before the elections in
1996 which led to people being naturalized without background checks, people
being naturalized that had criminal records. I mean it was just a travesty.
But that's the kind of pressure or that's the kind of action that takes place
when an agency is placed under pressure and political pressure as well. The
government under pressure from the business community primarily and from open
border advocates of whatever variety have made law enforcement a lower
priority, Mark touched on this a little bit, than facilitating trade and
travel. Keep the traffic moving. That's always been the most important concept
that any INS official hears certainly in San Ysidro and probably anywhere
else. Keep the traffic moving. I think the average is an inspector has 45
seconds to clear a car coming through that port of entry at San Ysidro. I remember in 1990
I had come to Washington and worked at the Treasury Department where I had
oversight of the Customs service. And in January of 1990, my colleague and I
were taken to Buffalo, New York to inspect the border customs facilities at
Niagra, I guess that's where it is. And the community and the customs
officials were very upset because of the long delays it took for people to
come across the border at that particular port of entry so having come from
San Diego where if you get across the border in less than an hour, you know,
it's a good day, I arrived in Buffalo and the port director was telling me
about the horrible delays that they had. I asked him, "Well how long are
they?" He said, "Well, it gets up to 15 minutes sometime." And
I thought well, I guess we know a little bit about priorities and about how
things work on the two different borders. But 15 minutes was
viewed as grossly unfair in Canada on the Canadian border whereas in other
places, it would be a -- you'd pay if you could get across in 15 minutes. Another example and
Mark again touched on this. When I was at Treasury, every summer as the
Assistant Secretary for Enforcement, I would get deluged with complaints from
the airline industry about the delays at most of the major airports in the
United States that were impacted by summer tourism and traffic and travel. And
the complaint was that Customs and INS were causing huge delays in processing
the people after they got off the airplane. So we looked into it and
discovered that the airlines, of course, are setting the schedule. And so when you
have for whatever reason, in fact as Mark indicated, when it is convenient --
it's the best marketing tool to have a plane land in Honolulu at noontime so
every airline has a plane land in Honolulu at noontime so you get ten 747's
landing simultaneously and all those people trying to clear Customs in the
same time period. And so I suggested why don't you change your airline
schedule? Why don't you spread these flights out over some period of time so
that INS and the border and the Customs can respond with -- no absolutely not.
That was not going to be permitted. And I discovered that neither Customs nor
INS has any say in how airlines schedule international flights. Again, I think
a sign of the impact of the private sector, the influence that they have over
good government and the ability of government to do its job. Fourth observation,
and again several of my colleagues have touched on this already but the total
lack of any interior enforcement effort by INS. I mean what we have today is a
grownup game of hide and go seek. If you can sneak past the border patrol at
the border or through the inspector at an airport or a port of entry, you're
home free. No one's going to look for you and the tragedy is it was not always
that way. When Mark started, when Bill started, INS regularly had interior
enforcement activities and probably had continued up until the last 10 or 12
years. I began to see this erode in the 80's when I was the U.S. Attorney in
San Diego and every time INS would start some kind of a work site, what did we
call them in those days, yeah, area control operation or whatever the
euphemism was, they'd get sued. Some special interest group in the community
would file a lawsuit which would tie INS up in knots for years. And so the
Justice Department got very nervous about doing these kinds of activities and
wanted to avoid these lawsuits and so that started the movement toward not
doing any interior enforcement. Essentially, the
only interior enforcement that's done these days is the criminal alien program
and where we have done a wonderful job of deporting what, 150,000 or I don't
even know what the number is, but large, probably the largest numbers of
people deported in the history of the country. Most of whom are criminal
aliens and those certainly are people we should get rid of. But that's not all
we should do. We've got eight million people here illegally, most of whom are
not criminal aliens and they're home free. We have removed any disincentives,
we have made people know that they are secure once they get past the border,
we have refused to put in place any incentives for them to leave. You know, we couple
that with the employer sanction provisions of IRCA failed miserably. Congress
since 1986 or soon thereafter realized that the program wasn't going to work
under its present system. They played around with ways to come up with
verification programs, none of which have been implemented and so we still
have no way to demagnetize these job market. We couple this with
the abysmal effort by the Labor Department to do anything about enforcing
labor laws and the minimum wage provisions and OSHA provisions. Let me skip ahead
here. Inter-agency disconnects. INS and the Border Patrol presumably they
share information although sometimes I'm not sure about that either, but
certainly between INS and Customs, DEA, the FBI, there is no system that
requires these agencies to interact. We have set up intelligence groups, EPIC
where Mark worked for a while which is a joint intelligence -- drug
intelligence center in El Paso. We've set up regional and local ones but it's
all sort of a play if you want. If you want to provide assistance, you can,
but if you don't want to, you don't and so we've seen INS essentially be shut
out of a lot of information sharing with the FBI especially for a long time.
Terrorists, drug traffickers, criminal aliens, illegal aliens, all profit
equally from a porous border control system whether measured at land borders,
seaports, airports, between the ports, seacoasts, wherever. We've got
thousands of thousands of miles and everyone profits from the current system. We've been talking
about reorganizing agencies for years, for decades, whether we need a border
management agency that combines INS and Customs and the Coast Guard. That idea
has been studied since 1973 when DEA was first created. We've had proposals
now for homeland security agencies with some of those agencies and others.
We've had, you know, ideas about reorganizing INS for at least since the
mid-90's. We've had -- recently talked of the FBI is overwhelmed now. They
want to focus on terrorism so they're going to maybe shed some of their
responsibilities to other agencies. Hard to believe that the FBI would ever
give anything up. But one way or
another, each of these ideas is being pursued piecemeal as opposed to
comprehensively. If we're going to reorganize federal law enforcement, let's
do it all at the same time so that the left hand and the right hand both get
what they deserve and aren't slighted in the process. I guess I would go
back to the last point I will make is about documents. Any agency at any level
of government that issues a document should do the best that it can to make
sure the document cannot be reproduced or counterfeited and that it's issued
to someone who deserves to have it. This is off-the-shelf technology these
days. But whether you're talking about a state issuing a driver's license,
which is a de facto ID card; I mean I was reminded of that yesterday as I was
flying here from California. Both airports I had
to go through, you know, you have to show a quote, government issued ID to get
on the airplane. Well, unless you work for the government, that's probably
going to be your driver's license. So if a state like California or several
other states around the country are now issuing driver's licenses
intentionally to illegal aliens, what's the point? How secure is that
document? I mean how good are you going to feel about getting on a plane with
somebody who snuck into this country and now has created a new identity by
getting a driver's license from any state that authorizes it? Now California, the
bill was on the governor's desk on 9/11. He refused to sign it. It was pulled
back by the legislature for obvious political reasons, public relations
reasons. And now it appears that it may have gone into effect inadvertently,
because when they withdrew it they didn't do it by a vote of the state
legislature. And since the governor didn't sign it or take action within 30
days, it may have automatically gone into force anyway. Well, whether
California solves its problem now, there's other states that have already done
this. I mean why are we allowing people to create false identifies to hide in
plain sight? It makes no sense. Social Security cards. There's no reason why
we should be issuing Social Security cards that we can't tell who it belongs
to and that it's valid. I agree with Mark;
we don't need a national identity card in the sense that the Europeans and
most of the rest of the world have national ID cards. But we do need to make
sure that whatever documents we issue can't be misused, and there is a way to
do that. And I guess
finally, again I reiterate the point I made earlier. Congress -- I think this
is what's Mark point is. Congress has created the immigration system that we
have and they did it intentionally. It's time for Congress to accept any of
the recommendations they've received over the last 20 years to fix all of
these problems. This isn't rocket science. Almost everything that is wrong
with the system, someone in INS or someone on some commission or someone
somewhere has figured out a way to solve that problem. And the reason Congress
hasn't acted on it is they don't want it to work. MR.
KRIKORIAN: Thank you, Pete. And the last panelist will be Ed Grant. JUDGE
GRANT: Thank you, Mark. Thank you, fellow panelists. I am unique
among the members of this panel for at least three reasons, the first of which
is probably you don't know the collective wisdom that is up here, collective
experience far dwarfs mine, which is now coming up on 10 years in the
immigration system. So it's a pleasure to be up with this group and with this
audience. I recognize many people here who also have vast experience and
wisdom on this issue. Second, I'm a
judge; and therefore, to some degree you have to tape my mouth shut, because
there's a lot you can say if you have a case before me if you're a lawyer or a
applicant, but perhaps a little less than I can say about policy. But I think
you've gotten a lot of policy ideas here; I'm going to add a few from the
perspective of a judge. And finally, I'm
the only one who's still in the system. I don't know what that says. Perhaps
these people really are wise to have gotten out when they did. But I want to
put perhaps a little bit of a different riff on the larger picture as a result
of the fact that I'm still in the system. I entered the INS
as an attorney, just a regular line attorney in the general counsel's office
in January of 1992, having had no experience in immigration law but wanting to
work in the government and the Department of Justice in particular, and this
is what was available. So there I was then and here I am now. And not to put too
fine a point on it, but the scent of backwater was pervasive in that agency.
What has been described here, certainly the folks who had experience in the
INS, particularly Mark and Bill, long before 1992 and for several years after
that I'm sure can attest to this, but I think have not described it to the
extent that I encountered it. It was -- I'm not
going to say it was embarrassing to work there, but it was absolutely clear
that this was an agency that was so underfunded, was so underutilized, or so
under -- well, underfunded is one thing, but where people just did not pay
attention to its mission, did not consider it important. You could tell that
instantly from your interactions with any outside agency, including those in
the Department of Justice, the FBI, et cetera, et cetera, et cetera. I think
it has been ably described here by both Mark and Pete and some of their
comments about it. And it has gotten
better. It is not where it ought to be, but we are in a hell of a lot better
position than we were in 1992, in my view. Part of that is the greater profile
of the issue and part of it is greater resources. The budget has more than
quadrupled, maybe it's gone up about five times. $6 billion now, I think,
approximately for the INS. We spent $7 billion on Halloween; we spent $35
billion, at least some of that money we don't know of for secrecy reasons, on
national intelligence. I think 10 to $12 billion for all of the various things
that we ask the immigration related agencies to do is -- not only doesn't
shock the conscience, I think it's perfectly reasonable in this day and age
given what we ask the agencies to do. I still think it's the case, even with a
$6 billion budget. Now the agency I
work for, which is not part of the INS executive office or immigration review,
is a tiny, tiny percentage slice. We're not part of the INS budget, but often
time we're thought as part of it because when the INS gets an increase that
means more deportations, more charges, that sort of thing. So they tend to up
our budget to add more judges and the other things that we need, but we are a
tiny fraction of that. I don't think any
agencies are asked to do more with less, because of the multifarious nature of
the task that has been described up here, everything from -- obviously the
state department isn't part of the INS budget, but everything from that aspect
to visa control and the part that INS has with that, all the way up to the
role that we play at the Board of Immigration Appeals in terms of being
perhaps the top of the pyramid. Let me just
describe briefly what we are. We are the appeals board from decisions of, for
the most part, of the immigration judges. The immigration judges, about 220 of
them, sit in 50 courts around the country. And they hear deportation removal
cases, what are called now removal cases, and the fundamental issues are
whether a person is legally present in the United States or not; and even if
they are legally present, if they committed some action which forfeits their
right to legal presence, usually having committed a crime. And then the forms
of relief that people often apply for, and this is most often people who are
not legally in the country, is dominated by political asylum, or I should say
asylum, because it's not always politically based. And there's other forms of
relief that are available to people, particularly cancellation or removal, one
for people who have committed crimes and one for people who haven't. But
asylum is obviously a big issue. I'm going to talk a fair amount about that
today. I think it's also
very important; this is something that hasn't changed and I think has been
alluded to up here; is that the immigration agencies are, although they may
seem politically awkward and do some politically awkward things at times, are
perhaps not to the best of their abilities, but certainly to a degree that
they're able to muster, are politically sensitive, politically attuned. As Mr.
Dooley famously once said about the supreme court, the agencies follow the
election returns. And I think that's clear that that happens and Congress does
act in various ways, even sometimes within the same legislation, certainly
sometimes within the same session of Congress. And that is something that the
agencies have to deal with. I think Mark has described that very well. I want to talk a
bit about asylum because I think while it has not -- it was very famously
brought to the forefront in relation to the first attack on the World Trade
Center, which I might remind all of us, I think I need this reminder from
time-to-time, that had that car been placed -- or that truck bomb been placed
in a slightly different area of that parking garage, we would have lost the
World Trade Centers or at least one of the buildings eight years ago. I think
that's a very sobering thought. I
think when we look back on the history of the 1990's, I think it is a little
bit hard to have that perspective now, because I think we're all in shock that
this has happened to us, that these two buildings aren't there; I mean sort of
the bad dream thing. But when we wake up from that and get a little more
perspective I think objective observers are going to say "Well, wait a
minute. This country was -- this particular target was attempted to be brought
down in 1993 and these various things led to that, and eight years later it
was successful. What was done in that eight year period?" I
think that's where the judgment is going to come down. And that's really not
something for us to discuss today, but I would leave it out there because I
think a lot of the things we are discussing today are things that people,
those objective observers, historians, et cetera, are going to be asking about
in the future. The reason I focus
a bit on asylum is because it is something which is, if you talk about the
crosscurrents in our immigration system between control and compassion and
between enforcement and service, really nothing speaks to those issues and
those crosscurrents better than the political asylum system. And not
surprisingly so, because as far back as our founding, our colonial founding,
not our nation's founding, asylum, the flight from persecution, it's always
been part of the fabric of our nation. And sometimes it has been perhaps over
idealized and sometimes it's perhaps been over criticized. Perhaps good
reasons for both of that, but I think we go from everything from that our
asylum policy is writ large on the base of the Statue of Liberty in Emma
Lazarus's poem on the one hand, to the thought on the other hand that every
asylum applicant who comes here illegally is a potential terrorist. Now that
is an exaggeration, but there was certainly a lot of concern about the asylum
system in the wake of the '93 World Trade Center bombings, because at least
one of those individuals involved had received asylum in this country. And I think it is
very important to relate the issue of asylum these days in terms of the
reality, the reality that I see with the issue of alien smuggling. Because a
very great number, if not the majority of the political asylum applicants
whose cases have first been seen by the INS and then seen by an immigration
judge, and the appeals, either a service appeal from a grant of asylum by an
immigration judge or an alien appeal from a denial of asylum by the
immigration judge, come before us at the Board of Immigration Appeals. And the
vast majority of those people, I've done a count, but it certainly seems to
me, at least from certain countries, got here through alien smuggling. I mean they got a
bad document; they got someone to get a ticket; they went on some circuitous
route from Fujon Province to Bangkok to Burma, Frankfort, someplace in South
America and up through Mexico, or something more direct. Sometimes it's the
ships, the Golden Venture, the recent ship that was stopped off the coast of
Australia. The business of alien smuggling to a large degree depends on the
possibility that the people being smuggled, at least some percentage of them,
are going to be able to either get a grant of asylum if they get to a western
developed country such as the United States or, because of the way the asylum
system and process works, are at least going to be able to stay here. Now again, there's
been vast improvement in that system. The number of asylum applications today
is far less than it was; I think the peak year was 1993, might have been 1994.
Because of some administrative reforms that were put in by the INS, as well as
some reforms enacted by Congress in '96, there is a greater -- far less
incentives to gain the system through just outright walking in the door
claiming asylum and then disappearing. That is less of a possibility now than
it was then. However, that is
not to say that there are not some severe problems that face adjudicators in
determining who ought to get asylum and who should not. How much should we
count the fact that a person was smuggled in. That's a point of controversy,
but in fact it's not counted very much. Usually it's said, "Well, we
don't care how the person got here. If they were persecuted they ought to get
relief." I throw that out there. It's part of our law. I wonder if in the
discussion over reforms whether that's something that might be taken into
consideration. More people are
detained now, so there's less chance of at least everybody who claims asylum
melting into the system and not being heard from again, but there is that
fact. And I think what's connected to that is the whole question of identity. There's no question
that a person ought to be able to come to this country; it's under our law;
claim asylum, get a fair hearing, and even perhaps be granted asylum even if
they're not able to present firm, corroborative proof. The law that's
developed on asylum says if a person's fleeing perhaps they weren't able to
get documents that prove that they were persecuted, police warrants or
whatever. But no one should have the right to get asylum if their identity has
not been firmly established. And that is something that's very difficult under
the current law and procedures to do. One case became a
case of great celebrity, case by the name of Abanqua, which was returned by
the Second Circuit Court of Appeals to the Board of Immigration Appeals
reversing our decision for re-adjudication and presumptively grant of asylum.
Well, it turned out that that case -- and it's just one case, but it shows
some of the flaws in the system -- was based completely on identity fraud. The
person making the claim had stolen the identity of another person, who
eventually came forward after some investigative work by the Government. And
it was determined that the person that made the claim and who'd gotten a fair
amount of celebrity backing for their claim and had won a case at the Second
Circuit Court of Appeals, one of our most prestigious federal circuit courts,
was entirely based on a lie. We have a situation
which involves a lot more cases of an attorney in New York who has been
indicted on, I believe a 70 count indictment, racketeering and down the list,
for an incredibly sophisticated system of generating false asylum claims. And
there have been people in that business, natarios (phonetic) operating out of
San Francisco -- excuse me, out of the Los Angeles area; there have been
people down in Miami with sort of patterned or boilerplate claims involving
Haitians. But this involves
immigrants from China, mostly making claims based on coercive family planning
practices in China. And the indictment is a matter of public record, can be
obtained from the U.S. Attorney's office; the name of the defendant is Robert
Porges, is a Harvard graduate, attorney. And again, innocent till proven
guilty, but the indictment charges that the scheme was so sophisticated that
they would tailor the complexity of the claim that was being given to this
person to make by the education level and the ability to articulate that claim
of the individual. The two minute sign I wrote for myself, so -- Anyway, so I think
in order to maintain a viable asylum system, which is, I think, essential for
us to meet our legal obligations, our international obligations and I think
the best traditions of this country, some of these issues with regard to
identity, the interconnection between alien smuggling and asylum, and how do
we best determine, without putting too much of a burden and too onerous a
burden on the asylum applicant that what they're reporting is actually true.
And I think there's a lot of aspects that I didn't get into them in questions,
or if you buy me a beer I'll even give you more detail. I think it needs to be
done. Let
me just run through a couple of policy things that I think are probably worth
considering. First of all, the 1996 act which is mentioned up here. I was a
staffer on the hill with regard to that act. And I was actually pleased with
the Patriot Act recently passed, the 2001 bill, that Congress apparently felt
that there was not a lot that needed to be added to the immigration law in
terms of specific terrorist provisions, because some of them were included in
the '96 act as well as in some previous things. And actually several of the
things that Congress did in the Patriot Act was to -- sort of a sense of
Congress that here are some things that were passed in '96, INS, State
Department, you ought to go about enforcing those a little more strongly. I think something
that was taken out of the '96 act, and again, I'm -- I should have said this
at the beginning. I'm speaking not for the Department of Justice here, but --
so don't ascribe my view to -- don't go to legislative affairs and say are you
supporting this. But I think it probably was not a good idea in retrospect to
repeal that part of the '96 act that called for federalized standards for
state driver's licenses and identity cards. You know, I don't want to get into
the whole debate about a national ID card, but in Virginia, until recently, it
was legally very easy for someone to take an identity and get a driver's
license. And as a resident of the great Commonwealth of Virginia, I found that
fairly offensive. So
I think a lot of stuff in terms of what legislation might be needed, well, I
think Congress has. Although the president's looking for some more stuff and
has sort of issued sort of a call for some greater -- a re-look at some
immigration policies, I think a lot of stuff is already on the books and I
think it's going to be up to Congress and the agencies to decide how to fund
that. Remember, Congress can pass all these laws. If they don't fund it, and
I'm going to repeat at the end here, I don't think I can get in trouble with
Department of Justice for saying this. Immigration ought to be at 10 to $12
billion a year. I just flatly believe that. The extent to which it was
underfunded when I entered the immigration service in 1992 is only becoming
more clear as these events unfold. The numbers are very important. I'm going to put
one thing out here which is purely a personal view that I think perhaps ought
to be looked at in the medium to long term. Currently the decisions of the
immigration courts and the Board of Immigration Appeals are reviewable by any
of the geographic U.S. circuit courts of appeals, of which there are 12 in
this country. This has created a situation, and continues to create a
situation because of the complexity of immigration law, of varying
interpretations of what's supposed to be one unified federal immigration law.
There's no state variances here, no geographic. This is not a matter of
federalism. This is one unified federal immigration law. It is being
interpreted in different ways, with different legal standards, in different
circuits. The supreme court cannot possibly resolve all of those conflicts.
It's just not going to take all of the cases. It will take some. It took a
couple this year, but that's a glacial thing to ask for the supreme court to
resolve all that. And perhaps some consideration ought to be given as to how
that ought to be addressed. It's -- strictly speaking as an adjudicator, it is
more and more of an issue and we spend more of our time the Board of
Immigration Appeals trying to figure out, because we want to have a national
plan. The reason we exist
is -- existed since 1940 is to have a uniform administrative interpretation of
the law. And it's very hard to do that when the Ninth Circuit's saying one
thing, the Seventh's saying another, the Second's saying, the Fifth is saying
another. And that is increasingly the case, not just in the area of asylum,
but it's in criminal law areas as well. Thank you. MR.
KRIKORIAN: Thanks. We will take some Q&A now for -- and I will
switch sides. Let's start from this side. And can you identify yourself,
ma'am? MS.
MALONE: Yes. My name is Julia Malone. I'm
with Cox. I have a question for the judge. We've been hearing
that there's something like 300,000 so-called absconders, people who have gone
through your court system and have been told that they are to be deported and
have gotten final orders, but were never actually deported because they just
vanished out of sight. I just wondered what your thoughts are about that and
how that could be changed. JUDGE
GRANT: Well, there's probably a number of things. First of all, the
thought is you try not to think about that too much because you see a lot of
those cases every day and you spend time trying to make the right decision.
And if you thought about the fact at the end of the day, well, I rendered
however many decisions I rendered -- and the board does 30,000 adjudications a
year, so we do a lot each day -- that 80 percent of these orders aren't going
to be enforced, it wouldn't -- the traffic is bad enough driving home here. It
certainly wouldn't make the drive home anymore pleasant. So on the more
serious side, I think it is a question of priorities. We often say at the
board -- and this cuts across our ideological spectrum at the board, which we
have one -- if there was a greater connect between the cases that the INS
brings in, the cases that the INS really wants to bring to conclusion by
putting some kind of custody control on people after an order has been entered
and actually removing those people, I think we would all feel a little better
about the process. I mean just getting the numbers of deportation orders
doesn't accomplish very much. It just sort of brands someone with the status
IE or a deportee, but we haven't done anything about you. I think part of the
money that I'm talking about, the most underfunded and perhaps most effective
part of the INS is its legal proceedings program. And this one I will get up
on top of the table and talk about, because it has just, with all of the
expansion and enforcement and all of that, the line attorneys at the INS are
asked to do an absolutely impossible job, given the case loads they have and
the number of motions and briefs and everything they have to do. I don't see
how they do it. That needs to be
greatly expanded. And I think someone in Congress has just got to get on that
and say this is done, because the money just disappears. It goes into other
things at INS, I'm sure very worthy things, but it's not going to legal
proceedings program. And that is something that needs to be done; the
attorneys are way overworked. And I think if you had more of those resources
available you would have a more rational system. MR.
NUNEZ: I would like to add onto that from a slightly different
perspective, as part of my part that ran beyond the two minute warning. But
it's basically the concept of the rule of law. What we've basically created in
this system on paper, if you look at the Immigration Act, there's lots of
parts of that that look reasonable and thorough, but when you consciously
ignore its enforcement you undermine the whole concept of the rule of law in
this country. You create an aura, a system of disrespect, where anybody in the
world knows that we don't enforce our immigration laws at almost any level. So I agree with
what Ed said. I think it is a travesty for a court to issue an order and then
essentially nothing happens. I mean there couldn't be anything more corrosive
to the concept of the rule of law than to have court orders disregarded. So I
think part of it is a lack of the will by Congress to address the issue; it is
the lack of resources. But somebody in INS or somebody in the Justice
Department has to prioritize this kind of a case as something that you're not
going to let go. And so while Congress can do a lot to help solve the problem,
it seems to me a lot of it is just prioritizing within INS and within the
Marshal's Service, who are we going to go look for, which kind of fugitives
are we going to place at the top of the list. And clearly capital murderers
and others, I suppose, go first, but you cannot ignore this kind of case. It again goes back
to what I started off by saying, and I think Ed echoed it. INS has never been
viewed by anybody in government as an important agency. So whatever it is
they're doing over there, it can't be important. MR.
KRIKORIAN: Thanks, Pete. Yes. MS. SMITH:
I'm Lisa Smith with the Mexico City News. I was wondering if anyone could
comment on the legislation being proposed by, on the one hand, Senators
Feinstein and Senator -- the senator from Arizona, and Senator Brownback and
Senator Kennedy. MR.
KRIKORIAN: I will take a whack at that. It is an interesting
indication of how immigration doesn't split along party lines. Brownback and
Kennedy are obviously Republican and Democrat, and likewise with Senator Kyl
and Senator Feinstein. And the -- and I'm not speaking for anyone here, so I
don't want anybody to get in trouble with the Department of Justice or
anywhere else, but in effect the Feinstein/Kyl approach is, although as Bill
had suggested, it is not the complete answer. It is a much tougher and more
realistic approach to the issue. I mean one of the
most important things they call for is something Jessica mentioned,
essentially a kind of smart card for foreign visitors that would be used when
they were entering the country, when they were leaving, sort of a credit card
visa if you will. Now my take on the
legislation introduced by Senators Kennedy and Brownback is, in effect, that
it's a political response. It is an attempt to do as little as possible while
avoiding exposure to charges of not doing anything. |