Congress and the Administration continue to focus, and to some extent disagree, on how to create a new Department of Homeland Security.  This new department will be the largest reorganization of government functions in decades, with immigration having been swept up into this reform.  How our immigration function is reorganized will impact every aspect of immigration. AILA supports reorganizing our immigration functions (as restructured in the bipartisan Senate bill S. 2444) and maintaining these functions as an entity outside of the proposed Homeland Security Department.  Such a reorganization and placement best meets our security, family reunification, and business needs and best fulfills our international obligations with regard to refugees and asylees. 

However, it is clear that any initiatives that Congress passes and the Administration approves will include our nation’s immigration functions within the proposed new department.  Given that reality, AILA supports organizing our immigration functions within one division (to ensure coordination and a single leader in charge) and using S. 2444 as the guide to how immigration is structured within the new department.  AILA also supports maintaining the EOIR outside of the new department and taking steps to make our immigration courts independent. (The bill passed by the Senate Governmental Affairs Committee, S. 2452, closely mirrors AILA’s position on these immigration issues.)  However, Congress has yet to achieve consensus within that body or with the Administration on how best to reorganize our immigration functions. Currently, there appear to be three different approaches, with a fourth approach evolving, on issues including how immigration should be organized within Homeland Security, the role of EOIR, and the care and custody of juveniles.  (Congress and the Administration have already reached consensus on the issue of visa processing:  The Department of Homeland Security would be in charge of visa processing, with the Department of State (DOS) issuing visas.  AILA supports keeping all of visa processing within the DOS.  Dividing policy and process will result in chaos and dysfunction.)

The Senate currently is in gridlock in its debate on the creation of the new department.  After failing to pass cloture (a procedural mechanism that limits debate and allows voting on an issue to proceed), Senators are now working to see if they can agree on amendments and move ahead on a vote next week. Democrats, with the exception of Senator Zell Miller (D-GA), appear at this point to support S. 2452.  (The bill is being debated on the floor under the number H.R. 5005 as the result of a procedural move in which the Senate took the House-passed measure, stripped it of its language, and substituted the language of S. 2452 as passed by the Senate Governmental Affairs Committee.)  The Senate bill maintains immigration functions together in a fifth division and incorporates S. 2444, the bipartisan Senate bill to reorganize the immigration system, as the model by which to structure immigration functions.  The bill also creates within the Department of Justice the Agency for Immigration Hearings and Appeals that would include the Board of Immigration Appeals.  Finally, the bill moves the care and custody of children out of the INS and into the Office of Refugee Resettlement (ORR), and creates a Civil Rights office and an Inspector General.  AILA supports these provisions.
 
The House passed its version of the Homeland Security bill (H.R. 5005) prior to the August recess.  H.R. 5005 splits up the INS, with services remaining in Justice and enforcement and inspections going into the Homeland Security Department.  H.R. 5005 also moves the care and custody of children to the ORR, and creates a civil rights office as well as an Inspector General.  Finally, H.R. 5005 explicitly rejects national, uniform standards for driver’s licenses.  This provision would the brakes on plans to turn state driver’s licenses into a de facto national ID card.  AILA opposes separating services from enforcement and inspections.  While at first blush, such a restructuring appears to make sense, in actuality, services will be ill-served by this arrangement.  Policy guidance and legal opinions will come from Homeland Security, and the lack of coordination between services, and enforcement will harm both functions.  AILA does support the provisions in the House bill that move the care and custody of children to the ORR, the creation of a civil rights office, and the rejection of a de facto national ID card

The Bush Administration supports neither the House-passed measure nor the bill passed by the Senate Governmental Affairs Committee. Rather, the Administration supports placing all of our immigration functions and visa processing within the largest division of the proposed Department of Homeland Security—the division of Border and Transportation Security.  (Along with immigration, this division also would include Customs, the Coast Guard, Federal Protective Services, the Transportation Security Administration, and the Animal, Plant, and Health Inspection Service.)  This placement would make humane services to immigrants and effective enforcement of our immigration laws nearly impossible by burying our immigration functions within this large division.  The Administration also supports placing the EOIR within the new department.  AILA strongly opposes moving EOIR into Homeland Security.  Allowing the immigration courts to be transferred to the new department would threaten due process, decrease accountability, and reduce public confidence in the decisions reached.  AILA instead supports the creation of an independent agency so that our immigration courts are impartial.  Such a separation would allow for meaningful checks and balances.  Finally, AILA also strongly opposes including visa processing within the authority of the new department. 

The Administration’s opposition to many of the provisions in S. 2452 is reflected in a measure, S. 2794, introduced by Senator Phil Gramm (R-TX) shortly before the August recess.  This measure, which has generated support from Republican Senators and from Democrat, Zell Miller, largely reflects the Administration’s position on a wide range of issues, including immigration. According to recent reports, Senators Gramm and Miller are developing still another measure that they plan to offer shortly.  This measure will apparently include provisions that modify earlier positions with regard to how immigration and the EOIR are organized. One provision would create a separate, fifth, division for immigration that would include services and enforcement, but would move inspections and the Border Patrol to the division of Border and Transportation Security.  This organization of immigration functions would lead to problems in coordination and different interpretations and implementation of the law at our borders and interior.  Another provisions would maintain EOIR in the Justice Department, but grant the Attorney General even more authority than that office now holds, thereby undermining the notion of checks and balances and due process.   

The Senate will return to Homeland Security next week and will try to achieve consensus on how to proceed, if it cannot achieve consensus on a measure.  Republican Senators are working hard to gather support for the new Gramm/Miller substitute.  After the Senate passes its bill, the House and Senate will meet in conference to resolve any differences.  Throughout this process, the Administration will continue to weigh in heavily with its positions.

AILA urges immigration advocates to contact their Members of Congress in support of the immigration provisions articulated in the Senate Governmental Affairs-passed bill.  A model letter to Members of Congress is available to AILA members on Contact Congress/Media located on AILA InfoNet. Please also contact the AILA Advocacy Department (202-216-2403) with any questions.

On September 19, the House Ways and Means Committee’s Subcommittee on Social Security held a joint hearing with the House Judiciary Committee’s Subcommittee on Immigration, Border Security, and Claims on the topic of Preserving the Integrity of Social Security Numbers and Preventing their Misuse by Terrorists and Identity Thieves.  The witnesses testifying at the hearing included: the Honorable James B. Lockhart, III, Deputy Commissioner of Social Security; Charisse Phillips, Director, Fraud Prevention Programs, Bureau of Consular Affairs, U.S. Department of State; Robert Bond, Deputy Special Agent in Charge, Financial Crimes Division, U.S. Secret Service; Grant D. Ashley, Assistant Director, Criminal Investigative Division, Federal Bureau of Investigation; the Honorable James G. Huse, Jr., Inspector General, Social Security Administration; Matthew Reindl, Operator, Stylecraft Interiors, Inc., Great Neck, New York; and Chris Hoofnagle, Legislative Counsel, Electronic Privacy Information Center.

After the events of September 11, the Social Security Administration (SSA) formed a task force to recommend enhancements that would enable the SSA to better monitor and validate the issuance of Social Security Numbers (SSNs).  Members of the joint subcommittees were particularly interested in the steps the SSA was taking to implement the recommendations of this task force, including initiatives that target the reduction of identity theft through the use of false identification papers and the use of false SSNs. 

According to testimony by the Deputy Commissioner of the SSA, the agency is working with the INS and the Department of State (DOS) to develop an Enumeration at Entry program for foreign nationals.  This program, the first phase of which is expected to be ready by the end of the year, will allow the INS and DOS to send electronically to the SSA the information needed to show that the foreign national is authorized to be in the country and is eligible to work, thus eliminating the need for the SSA to examine documents and request further review and authorization. 

In addition to this new program, other changes are in the works at the SSA, including plans to designate non-work authorized Social Security Cards with a special numerical series and provide more available information to employers about the history of SSNs.  In response to an inquiry from House Immigration Subcommittee Chairman George Gekas (R–PA) as to what happens when an employer calls to verify an SSN, the Deputy Commissioner confirmed that, currently, the telephonic verification system and the pilot on-line verification system only indicate if an SSN was validly issued by the agency.  The verification systems do not provide any information that could alert an employer to potential fraud, such as whether the card had been reported stolen or whether the individual to whom the SSN was issued was still alive or still eligible to remain in the country.

Due to time constraints, the presentation of oral testimony at the hearing was limited, and witnesses were asked to respond to written questions provided by Subcommittee Members.  Copies of these responses are not yet available.

On a related note, AILA has learned that the Federation for American Immigration Reform (FAIR) submitted letters to Subcommittee Chairmen Gekas and E. Clay Shaw, Jr. (R–FL) expressing FAIR’s support of the SSA’s policy changes to reduce the number of non-work authorized SSNs and the Social Security No-Match Letter Campaign.

The House Subcommittee on Immigration, Border Security, and Claims, on September 18, held a general oversight hearing on the INS’s implementation of the Internet-based system known as the Student and Exchange Visitor Information System (SEVIS).  Among the witnesses testifying at the hearing were Janis Sposato, Assistant Deputy Executive Associate Commissioner for the INS’s Immigration Services Division; Glenn A. Fine, the Justice Department’s Inspector General; Catherine D. Cotton, Director of the International Office, Duke University; and Dr. Terry W. Hurtle, Senior Vice President for Government and Public Affairs, American Council on Education.

The SEVIS program requires schools to monitor foreign students by collecting registered visa holders’ names, addresses, phone numbers, class schedules and any changes to the students’ personal information.  Such personal information could include whether the student dropped classes, dropped out of school, or was arrested.

The INS is seeking to implement SEVIS at the roughly 10,000 colleges and universities that are eligible by the January 30, 2003, deadline.  However, based on the testimony of the witnesses, there is some question as to the level of implementation by that date.  “While we believe that [the system] will be in operation January 30, there is a question as to whether it will be fully implemented by that date,” said Mr. Fine.  He characterized the system as being fully implemented when both the INS inspectors and the school officials are fully trained, and the inspections and recertification of colleges and technical schools are completed.  Representative George W. Gekas (R-PA), Chairman of the subcommittee also stated that, based on the testimony, he doubts the ability of the INS to make SEVIS fully operational by the deadline.

Ms. Sposato stated that while she is confident that the INS will be able to make SEVIS available to eligible schools by the January deadline, she doesn’t expect that all students will be entered into the database at that time.

On September 19, the Senate Committee on Commerce, Science and Transportation approved by a voice vote legislation (S. 2949) aimed at providing enhanced aviation security.  The measure, introduced just two days earlier on September 17, by Subcommittee Chairman Ernest F. Hollings (D–S.C.), deals primarily with the requirements set forth in the Aviation and Transportation Security Act (Pub. L. No. 107–71) relating to the screening of baggage and the deadlines for installing the required screening equipment at airports around the nation.  In an immigration-related development, Chairman Hollings and ranking Republican John McCain (AZ), offered a manager’s amendment that would amend the Aviation and Transportation Security Act to remove the recently enacted requirement that airport screeners be U.S. citizens.  Under the amendment, which the committee adopted by a voice vote, screeners would instead only be required to be “U.S. nationals,” which would include resident aliens or residents of a territory such as American Samoa.




Recently Introduced Legislation

On September 17, 2002, Senator Olympia J. Snow (R–ME) introduced legislation (S. 2938) to require the entry of information on visa denials into the interoperable electronic data implemented under § 202(a) of the Enhanced Border Security And Visa Entry Reform Act of 2002 (Pub. L. No. 107–173).  The bill would also require the Secretary of Homeland Security to conduct a study on the use of foreign national personnel in visa processing to determine whether such uses are “consistent with secure visa processing.”

On September 9, Representative Frank Pallone, Jr. (D–N.J.) introduced legislation (H.R. 5354) to accord honorary citizenship to the alien victims of the September 11 terrorist attacks and to provide for the granting of permanent resident status to the alien spouses and children of certain victims of the attacks.  A similar bill (H.R. 5294), introduced on July 26 by Representative Carolyn Maloney (D–N.Y.), would grant citizenship, rather than permanent resident status, to the alien spouses and children of such victims.

The “Driver’s License Integrity Act” (H.R. 5322), introduced on September 4 by Representative Eric Cantor (R–VA), would require nonimmigrants to have a valid nonimmigrant visa in order to obtain a driver’s license, and would limit the period of validity of driver’s licenses and state ID cards issued to nonimmigrants to the period of validity of the nonimmigrant visa.

Three separate pieces of legislation addressed the issue of border-crossing commuter students.  The bills were spurred by a May 22 INS memorandum prohibiting INS inspectors from admitting commuter students into the U.S. on tourist visas/border crossing cards to enroll in part-time courses of study.  The “Commuter Students from Border Nations Act of 2002” (H.R. 5288), introduced on July 26 by Representative John LaFalce (D–N.Y.), would “reaffirm” the historic treatment of part-time commuter students from Canada and Mexico as temporary visitors for purposes of entry into the U.S. and would accord them the same manner of treatment for purposes of entry as a nonimmigrant alien under INA § 101(a)(15)(B).  The “Border Commuter Student Act of 2002” (H.R. 4967), introduced by Representative Jim Kolbe (R–AZ) on June 19, would amend INA § 101(a)(15)(F) to establish a new nonimmigrant category for border commuter students.  Senator Kay Bailey Hutchison (R–TX) introduced a companion bill to H.R. 4967 on July 17 (S. 2742).

Senator Robert G. Torricelli (D–N.J.) introduced a bill on August 1 (S. 2856) that would make nationals of Colombia eligible for temporary protected status (TPS) under INA § 244.

On August 23, 2002, a three-judge panel of the Cincinnati-based U.S. Court of Appeals for the 6th Circuit concluded that a blanket policy of the Justice Department to close immigration hearings violates the Constitution.  The court ruled that the news media and ordinary citizens have a constitutional “right of access” to deportation proceedings that was violated by a September 21, 2001, Justice Department order that closed hearings deemed of “special interest” to the terrorism investigation.

In its decision, the three-judge panel issued a strong rebuke of the Department of Justice’s handling of these cases.  “The Executive Branch seeks to uproot people's lives, outside the public eye, and behind a closed door,” Senior Judge Damon J. Keith wrote in the opinion for the court. “Democracies die behind closed doors. The First Amendment, through a free press, protects the people’s right to know that their government acts fairly, lawfully, and accurately in deportation proceedings….When government begins closing doors, it selectively controls information rightfully belonging to the people.”

Under the challenged policy, the press and public (including family members) were automatically excluded from any immigration hearing designated by the Justice Department as a “special interest case.”  Lee Gelernt, Senior Staff Counsel with the National ACLU Immigrants Rights Project, who argued the case, said, “The court’s opinion makes clear that blanket closure orders are unconstitutional and that the government may not simply unilaterally declare that an entire category of cases will be conducted behind closed doors without any public scrutiny.”  This ruling marks the first appellate level ruling against the Administration’s actions since 9/11.

Jeanne Butterfield (National) was quoted in a September 19 Detroit Free Press article on the U.S. policy of requiring Arab immigrants to register with the government and be fingerprinted.  Jerome Grzeca (Wisconsin) wrote an opinion piece about immigrants and immigration that was published in the September 17 Milwaukee Journal Sentinel.

On September 16, Newsday (New York) quoted Jeanne Butterfield (National) in a story about the detentions for immigration violations that have taken place over the past year. Thomas Elliot (Washington D.C.) was quoted in a September 16 Associated Press article on an Afghani immigrant in detention.

University Wire quoted Luis Bartolomei (Minnesota/Dakota) in a September 16 story about foreign students.  Mark Koestler (New York) was quoted in the September 15 edition of Newsday’s Immigration Q&A.

The (Ft. Lauderdale) Sun Sentinel quoted Tim Murphy (Southern Florida) in a September 15 story about new security rules and how they impact business.  On September 15, Anna Baird Choi (Carolinas) was quoted in a (Charlotte) News Observer article on visa processing delays.

Joseph Reina (Texas) was quoted in a September 14 Dallas Morning News story about marriage fraud.  Steve Yale-Loehr (Upstate New York) and Henry Liebman (Washington State) were quoted in a September 13 Seattle Post-Intelligencer article on a crackdown on EB-5 visa holders.

On September 12, Brent Renison (Oregon) was quoted in an Oregonian article about INS Director Ron Smith.

On September 11, Marc Van Der Hout (Northern California), Jonathan Wong (Northern California), and Carl Falstrom (Northern California) were quoted in The Recorder in a piece on immigration law after September 11.

Vicky Dobrin (Washington State) was quoted in a September 10 Seattle Times story about her client, a Tunisian citizen held by the INS.  The Record  (Bergen County) quoted Sohail Mohammed (New Jersey) in a September 10 article on the Muslim community.

Jeanne Butterfield (National) was quoted in a September 10 Los Angeles Times article on the terror investigation and its impact on due process.  Kathryn Terry (Southern California) was quoted in a September 10 Orange County Register article on earned legalization.

The Boston Herald quoted Steve Clark (New England) in a September 10 article on visa processing after September 11.  Sohail Mohammed (New Jersey) appeared on the New Jersey Network and Court TV on September 10 to discuss immigration after September 11.

Annie Wang (New York) was quoted in the September 8 edition of Newsday’s Immigration Q&A.  Awad Rashmawi (Northern California) and Jeanne Butterfield (National) were quoted in a September 8 Sacramento Bee article on asylum seekers.

On September 6, Cheryl Little (Southern Florida) was quoted in a (Ft. Lauderdale) Sun-Sentinel article on Haitian women held in detention.

Meredith Bown (Southern California) was quoted in a September 6 City News Wire article on temporary protective status for Salvadorans.  Cheryl Little (Southern Florida) was quoted in a September 6 Cox News Service article on the arrest of immigrants for falsifying identification documents.

Cheryl Little (Southern Florida) was quoted in a September 6 (Ft. Lauderdale) Sun-Sentinel story on the Krome Detention Center.  On September 6, the San Francisco Chronicle quoted Mark Silverman (Northern California) in a story about an asylum seeker.

Stephen Yale-Loehr (Upstate New York) was interviewed in the September issue of Cornell Alumni Magazine on the topic of immigration policy after September 11.  Carl Shusterman (Southern California) was quoted in a September ABA Journal article on recent U.S. policies that “leave immigrants separate and unequal.”

Shen-Shin Lu (New England) was quoted in an August 16, Boston Herald and an August 14 Boston Globe article on asylum seeker, Yukum Jia.  Casey Wolff (Southern Florida) wrote an article printed August 25 in the Naples Daily News about local law enforcement officers enforcing immigration laws.

Note:  Please submit all articles, letters-to-the-editor, etc. for inclusion in “Members in the News” to Judy Golub of the AILA Advocacy Department (jgolub@aila.org).

Every year, some 15,000 refugees arrive in the U.S. and keep going toward Canada, where they hope to start new lives. (Only about 200 each year come through Canada to seek asylum in the U.S.)

--Village Voice, September 3, 2002

Judith Golub, Senior Director of Advocacy and Public Affairs
Ben Johnson, Associate Director of Advocacy
Danielle Polen, Legislative and Regulatory Affairs Associate
Joanna Carson, Business Immigration Associate
John Estrella, Advocacy Associate
Amanda Carufel, Public Affairs Manager
Kris Benjamin, Legislative Assistant

American Immigration Lawyers Association
918 F Street, N.W.
Washington, D.C. 20004
202-216-2403

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