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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. UNIDENTIFIED SPEAKER: To this
distinguished panel I have a question which has to do with asylum, where
there's a growing fear among the students that their visas will be
restricted. That's what we have been hearing. What level of extradition
(inaudible) on the part of the State Department? MS.
VAUGHAN: Well, I'm not quite sure about the link between
political asylum and student visas. I think it's impossible to say at this
point whether we're going to see a drop in student visas or not. What I
think is clear is that they need to be scrutinized more -- a lot more
carefully than they have been, both at the point at which they're issued
or not issued and at the time that they enter the United States and pursue
their course of studies, if that is in fact their entry point. Whether
that will happen, I'm not sure. MR. REED:
I will tell you what I think might happen; and I can tell you
again, to go along with what Mark was saying, why it's so important that
people are at least talking about this. I do believe there will probably
be some restrictions and the restrictions are going to come about because
people want to protect the process. If the public has no confidence in the
process, then I think that it is in extreme danger of becoming
extinct. And so what the government needs to
do now is to start building in some safeguards into a system which has
been identified as being vulnerable. So I think you're probably going to
see a lot of discussion, maybe some false starts, but I think you're going
to see some people very focused on what do we need to do to preserve this
system so that it continues to function so that people don't lose
confidence in it. I don't think the public has got a lot of sympathy right
now for systems that are -- appear to be openly abused and openly
vulnerable without the government taking some action. So will there be some restrictions? I
hope so. I think it would be good for students if they are monitored. I
think that will keep the door open, I think that will keep them in school,
and I think it will relieve a lot of the anxieties the American public
have right now. So is there a restriction? Yes, but is
it something that would probably be well received to preserve the system?
I think so. I hope so. MS.
VAUGHAN: And one piece of evidence that what Mark said is
probably going to happen is the fact that higher education as an industry
has already come out and renounced its previous opposition to these kinds
of systems to track students. Their opposition to any effort to get a
handle on the number and the kind of student visas that are issued was
really shameful before, and I think that that has been a complete 180, if
not 360 degree turn on the part of most of higher education. They know
that they need foreign students and they know that it is going to be up to
them to help make sure that they're not abused. UNIDENTIFIED SPEAKER: I would
like to direct my question to Mr. Reed, given your experience on
multi-levels in the INS. I would like to ask you about restructuring INS
and this concept of separating service from enforcement, and particularly
addressing the huge pending caseloads at INS. I think at the end of this
fiscal year we were up to 4.8 million cases before your adjudications and
nationality program. At some level it seems to me what is done at ports of
entry have to be akin to what the adjudications officers do at the
district level. And the same with the visa issuance too, that they take
some documentation, they weigh it, and the person is either admissible or
they're inadmissible. MR.
REED: I think what you speak to is the amount of integration
involved from one discipline in INS to the next. And if you look back at
history, I think you'll see that the agency was grown because the nation
started recognizing how closely integrated and related all these issues
were, so it made sense to bring together under one umbrella. I used to
defend the current structure. I do believe that integration is important.
If they break that up they're going to have to do an awful lot of work to
be sure that the interconnectivity stays in place. But let me say this. INS has been
wrestling with restructure for 10 years at least. I think it is to some
extent paralyzing the agency and I think it is time to get over it. So if
restructuring is what it takes to put this behind the agency and let them
get back to work, for crying out loud do it, but they've got to stop
studying this thing. They've got -- this has got to stop being the subject
of one priority meeting after another and they've got to get back to the
business of work, and that is most important. So I've now become an advocate for
restructure, because I don't think it's ever going to go away until it
happens. UNIDENTIFIED SPEAKER: Why not
get to the priority of hiring additional adjudications officers to deal
with the pending caseloads, and you're also giving a fair shake to these
potential immigrants all across the country? MR. REED:
I think your point is well taken, and that's another reason why
I think there needs to be a restructure. One of the things I used to deal
with when I would go out and try to talk to the public about why there was
a backlog in adjudications and why they weren't being taken care of, I
would say there is no money. Then somebody over here would jump up and say
"What the heck do you mean there's no money? You just got a billion
dollars. You're hiring border patrol agents. Stop hiring those border
patrol agents and start putting some people over here." Then I would try
to explain to them why I didn't have the authority to hire examiners
rather than border patrol agents, and it really got -- I could tell it was
just -- people were just zoning out on me. So as long as you've got those two
things integrated like that, the public expects there to be a lot more
flexibility in management capacity in the agencies than there is. I think
if you split the agency a little bit and you have one that's clearly over
here and you have another over here, then you start having that dialogue
that you want to have on the specific resources for a specific purpose and
then hold those people responsible for that and then deal with the
integration issues. As long as there's not enough resources to go around
people are going to be trying to force the agency to move them back and
forth, and it doesn't happen under this structure. UNIDENTIFIED SPEAKER: You've
been asked about the Brownback and Kennedy and Sensenbrenner bills. I'm
curious if the panel has any thoughts on some of the more -- some of the
other proposals such as coming out of the House Immigration Reform caucus,
the moratorium and also some of the proposals you're talking about. Let me rephrase that. Whether it would
have a chance of getting through in the president's package. MR.
NUNEZ: At least from our personal perspective, I've looked at
the reform caucuses. I think it is 15 points in their release. I they're
all going in the right direction. There are some that don't go far enough,
and it's sort of a common complaint that I have about lots of the people
that are talking today about doing things they should have been doing or
they wish they had been doing or they wanted to do in the future. There's
been sort of an inordinate focus, for example, on student visas. I mean
it's a very small part of this huge non-immigrant flow that comes into the
U.S. And so certainly we ought to deal with the student visa problem, but
not exclusively. We have 8 million illegal aliens in
this country. Between INS and the Census Bureau they tell us 40 percent of
them are over stayers. So what's that, 3.2 million overstayers? They're
not all students. Not seeing congressmen and senators and people in the
executive branch talk about how we need to go find all of these student
visa overstayers and locate, arrest and remove, or some other segment, but
no one yet has said, "Hey, we need to go find as many of the 8 million
people that are here illegally as we can and start proceeding against all
of them." They've all violated the same laws or similar laws, I guess you
could say. It isn't even a crime, as I understand
it, to overstay your visa. If you come in legally and you overstay it's a
criminal offense, I mean it is a deportable offense. You can be removed,
but there is no statute. It is not an illegal entry, which requires an
entry at a time and place other than is designated or use of a false
statement. You cannot prosecute someone even who
came in illegally. It's very difficult, let me put it that way. It's very
difficult to prosecute an illegal alien for illegal entry unless you catch
them essentially where he illegally entered, because if they came in six
months ago in San Diego and now you catch them in New York, well, they're
out of status. They can be deported, they had committed a crime, but it's
essentially unprosecutable because of venue problems, evidentiary
problems, et cetera. All of these problems are easily fixed.
There's a phrase in the re-entry act of deportation statute that says "If
you re-enter after having been deported or if you are found in the United
States after having been previously deported, that itself is a criminal
offense and MR. REED:
I agree with everything Pete said, but I think there's a deeper
issue here that Congress needs to be pushed on and I think what you're
going to see is a lot of stuff coming up to deal with symptoms without
dealing with the causes. A lot of that legislation I think is necessary
because the environment needs to be changed right now. The environment right now, as Pete said
earlier, is compliance is really not expected by anyone, by the government
nor the participants. So you need to change that environment. I suspect
that if certain actions were taken and some presence was felt out into the
community that that would change the compliance level. I really believe
that a lot of the people that are noncompliant, or the majority of the
people that are noncompliant do not have any ill will. They're just going
along with the system like everybody else. That's for non-immigrants. For people that are crossing this border
and those 8 million people in the United States, most of those are not --
did not come in as non-immigrants. They're coming in to get work. As long
as this country is going to have a neon sign that says "Jobs available,
come on in," and the moment they get that job there is absolutely no
consequential risk, people are going to try to figure out a way to get
here. And so if we're not going to address
that issue, it is going to make it very difficult for people on the line,
the border patrol agents on the line and the immigration service, to ever
be able to prioritize the work. They're going to end up chasing their
tail. They're going to end up removing one person while somebody else is
coming in. They're going to be in over here while something over here is
being taken care of. Somehow the numbers have got to be reduced. Presence for non-immigrants saying that
we expect you to comply, there's consequential risk, and we're going to do
something about it is absolutely essential to non-immigrants coming in on
visas. For those people who are coming here for work, there needs to be a
statement made that these jobs are no longer going to be available to you.
If there's not jobs available, people are not going to come here. They're
not -- Mexicans are not fleeing their country because they want to get
away from Mexico. They're coming here because they want work and they want
to prosper like all of us do. Now I suggest that a piece of doing
that is providing a way they can come in and be monitored just like
non-immigrants. I think that this nation needs that kind of a labor force.
I think it would be foolish to shut that border off. But regardless, that
issue has got to be tackled; and if it's not tackled, if the jobs issue is
not tackled, all the rest of this stuff is superficial. It is dealing with
symptoms. It will never get to the cause and this will not get fixed. MR. KING:
Can I add to that? If you take the Tucson sector as an example,
this last year there were 159,000 apprehensions made at or near the
border. What's scary is the fact that even the border patrol admits that
for every one apprehended or arrested, five more get through. If you do
the math, that's a pretty frightening number. I've watched. I wish I had compared
what I learned over the 44 years that I've been around this problem also,
because I've watched this whole thing grow from a point when I was a
younger agent in the 50's, where nationally we were arresting fewer than
50,000 people a year. By 1986 we were arresting 1,600,000. My point is
that this country is growing population-wise through illegal entry to
astronomical proportions. There is no price to pay, as I think Pete said,
about illegal immigration. If out of those 159,000, for example,
many were repeat offenders, they know that if they're caught that they
will simply be returned across the border. They wait five minutes, they
try again. I've seen that happen time and time again. So somewhere along
the line we have to get control of our immigration enforcement policies,
because to keep sending that signal that it's okay to come, there's no
price to pay, is just going to continue to increase that illegal
population. MS.
VAUGHAN: In the same way that a few selected speeding tickets
given out helps everybody slow down. I think some careful and a little bit
more effort at enforcing in the interior will prevent a lot of it, because
as Mark said, most of these people are decent people. They're just taking
advantage of the opportunity that we offer them. UNIDENTIFIED SPEAKER: I'm with
the National Post. How would the people on the panel assess the situation
on the Canadian border? And would you favor any kind of visa system or ID
card system to enter the U.S., or is the current system working?
MR.
REED: I have an opinion about everything, so let me start off
and that will get these guys going real quick. I was in Toronto last week and I
noticed one of the headquarters (sic) up there was the fact that President
Bush was asking Canada to get a little bit closer to us in terms of having
our immigration policies mirror each other. I think the philosophy being
that if Canada did have immigration policies and procedures that were very
close to ours, that Canada would in fact become part of our perimeter
protection in terms of immigration. So I think there is the right kind of
dialogue happening right there. And if we can depend on Canada to screen
people that becomes yet another tier of enforcement that we can build into
our enforcement strategies. MS.
VAUGHAN: But we can't abdicate to Canada our responsibility to
protect our own borders. We need to have more than an orange cone in the
lane in Swanton, Vermont. We need to staff those borders and make sure
that there are no holes. We can't give up that responsibility to
Canada. MR. REED:
Well, I didn't think I agreed with Bill, but if that's what we
need to do, we need the military. I don't know if many of you have seen
that border up there, but that is one heck of a big border and stopping
those holes is not something we're going to do easily. MR. KING:
If I may, I worked 11 years on the northern border in various
capacities, but this is not new. Canada's immigration policies have been
so lax with respect to the admission of non-immigrants particularly, that
I can go back to 1968 or 1969 when I was a supervisor just below Montreal,
where I, along with another supervisor and eight agents, arrested people
from 32 different countries coming across that one specific border area.
That was 30 years ago. It hasn't changed that much. But the idea of having 400 people or
300 people from the border patrol and 4,000 miles of border needs to be
readjusted. If we could get Canada to comply with what has been suggested
it would be great, but in the meantime we have to take care of our own. If
you recall, last year I guess it was, at what was it, at the state of
Washington border they apprehended the terrorist intent upon blowing LAX
off the face of the map. But there's a lot that can happen on the Canadian
border and I think they've got to pay more attention to it. JUDGE GRANT:
Very briefly, two points about Canada. One is there has been talk from
time-to-time -- well, let me start with another first point. The supreme
court in its most recent decision in the area of asylum, a case called
Aguirre-Aguierra v. INS, came out of the Ninth Circuit, overturned a grant
of asylum by the Ninth Circuit, which had in turn overturned a denial of
asylum by the Board of Immigration Appeals. And at the board we win some,
lose some, but in that opinion the court went back to a theme that it has
stressed a number of times, one affirming the discretion of the agency to
make judgments and tying that discretion specifically to the matter of
foreign policy. Which I meant to mention in my prior
comments, but I think is important with all of this, and it's one of the
reasons to give an agency or the immigration agencies, however they wind
up being, a 10 to 12 or even more billion dollar budget is that very
reason, that their functions are innately and intricately involved in
foreign policy and national security. They are very important to that. And
while it has a heavy domestic aspect to it, you can't forget that. And
there's laws and procedures. It's not a willy-nilly, completely
discretionary judgment, but it is -- you need to have the laws and
procedures. But that all goes back to, at least at times, those kinds of
things. And actually what was involved in that
case was whether to give asylum to somebody who had been engaged in the
burning of buses in Guatemala as a sign of political protest. Just
transliterate that to some other things that go on in other countries that
are more severe than bus burnings and then coming here and claiming
asylum; well, I'm going to be persecuted because I engaged in that. And you see the point the supreme court
is making, the second point involving specifically Canada, is perhaps it's
time to restart discussions with Canada and perhaps with other countries
on harmonization of asylum policy. Because I know this country grants
asylum, at least under our law we have granted asylum to people from
nations that are very rarely recipients of asylum in other developed
nations with very fine, very protective asylum systems, and vice
versa. Now I'm not saying you're going to get
100 percent agreement, and everybody's going to have their own domestic
laws and it's going to depend upon the flows, who's coming from the
different countries and all that sort of thing. But these harmonization
discussions, they sort of, you know, there's a big burst, well, this is
something we need to do and then it sort of gets put on the back burner.
And I'm wondering if that is not something that ought to be, because it
is, as the president said, it is a global issue. And I think all of these
things come up. It is not opportunism that we're raising all of this
stuff. It is the events of September 11th that I think bring them into
sharper focus. MR.
KRIKORIAN: A couple of more questions here. UNIDENTIFIED SPEAKER: My
question for any of you is how will these proposed changes affect innocent
immigrants living legally in the United States, specifically Mexican or
Hispanic immigrants? JUDGE
GRANT: Legal or illegal? UNIDENTIFIED SPEAKER:
Legal. JUDGE
GRANT: It shouldn't have anything. MS. VAUGHAN:
If anything, it will help them, because if there's a general
sense that we have gained control of one-half of the equation, which is
refusing entry to people who are not eligible to come here, people will
have more confidence in our ability to do a good job at admitting those
who are eligible. UNIDENTIFIED SPEAKER: I have a
question about the student visa, especially regarding China. As we know, a
lot of Chinese students now are very anxious about the issue because there
are a lot more people want to come to the United States to study. Under
the immigration policy and control and tightening now, what kind of
impacts are there to the Chinese students? MS. VAUGHAN:
The most likely impact, although we don't know for sure because
nothing has been passed, is that those applications are going to be
scrutinized a lot more thoroughly than they have been at this point. I
think it is hard to get around that and it will be harder to get a student
visa. UNIDENTIFIED SPEAKER: Regarding
the number? MS. VAUGHAN:
I think that is a little bit hard to tell at this point.
There's currently no restriction on the number of student visas that are
issued. They're issued to people who are deemed to be qualified. There is
no limit on that statutorily. UNIDENTIFIED SPEAKER: The number
of folks that are found deportable, what percentage would you say are not
deported because of the inability to obtain travel documents? JUDGE GRANT:
From certain countries it's a very high percentage. And it is
not just limited -- I mean it is publicly known that we're in negotiations
with countries in Southeast Asia, Vietnam, Cambodia, Laos, in order to
obtain return of their nationals. In most case, sadly, people who came
here lived most of their lives here, but have committed serious criminal
offenses and are seeking to be deported. And these are among what are
called the so-called lifers that are in detention. The Supreme Court
addressed that issue in a recent decision and -- but there have been other
countries that have been somewhat reluctant. I don't think -- I think it
is an issue. I don't think it's the majority, or
anywhere near the majority of the people who have, going back to our first
question here that we discussed. I think with the others, you walk out of
immigration court, you have an order of removal, the judge gives you full
advisal of your appeal rights. If you take an appeal to the Board of
Immigration Appeals we might get to it in three months, six months, a
year. Many times much longer than a year, unfortunately; we're trying to
work on that. And at the end we issue an order and
say "We affirm the immigration judge" and the order is sent to you and/or
your attorney, and well, there you are. There's an order against you and
it's entered in an INS record and their -- and in the database, but unless
they have some control over you they don't know that now is the time. And
I think it's, I won't say completely arbitrary, but it is somewhat a roll
of the dice in the grand scheme of things whether that order's going to be
enforced or not. MR.
KRIKORIAN: Let's take a last question, then you all can
approach the panelists. Yes, ma'am. UNIDENTIFIED SPEAKER: Prior to
the 11th we were long interested in a binational agreement with Mexico.
Since then, how do you think the events of the 11th have changed that,
both in terms of interest and if we can increase border security and
binational migration and work together and move forward together? Is there
an interest in that and are there resources to do both at the same time if
there is an interest? It's just a general question. MR. NUNEZ:
The last phrase, there's not any resources to do what we're
trying to do now, let alone more. It's obvious we don't have enough
resources to do anything. If you add it on top of what we already are not
doing, an amnesty or a guest worker program, I mean who's going to do
that? What part of INS's present responsibilities are going to stop doing
so that they can address either one of those two issues? I guess one of the analogies, I
suppose, that came to me a few days ago was if you wake up one morning and
you walk down the stairs in your house and your house is flooded because
the pipes in the wall burst overnight and your house is being flooded and
water's gushing out of the wall, the first thing you're probably going to
do is go out to the street and turn off the main valve so that the water
stops flooding your house. You're going to do that before you can try to
fix what's wrong. So the idea of some sort of a slowdown
or a moratorium is certainly not an illogical response given what we now
know about our immigration system. So it seems to me the prudent thing to
do would be to say timeout. We're going to fix all of these problems. And
in the meantime, we don't have any. We've got backlogs that go back for
what, three or four years, or however long you mentioned. And why are we
adding to this workload while the system is broken? So let's call a timeout, let's fix the
system and then we will re-open for business so that we can once again
become a nation of immigrants and a nation that abides by the rule of law,
but right now we're neither. UNIDENTIFIED SPEAKER: Both the
Congress and the administration were in favor of that. Do you think that
slowdown you're calling for is also going to be coming out both those
branches of government? MR. NUNEZ:
Well, the administration was clearly in favor of both things.
I'm not sure the Congress was because it seemed that once the two
presidents started talking about these two things, at least President Bush
seemed to be getting some silent messages from some sources that either
one or both of those ideas was not going to have an easy ride through
Congress. In fact, when President Fox came up just before September 11th,
the president, at least the press reports were that the president was
trying to slow everything down because the political will in Congress was
questionable to do those things. Now I think at this point nobody in
Congress is going to want to be talking about either of those issues until
they sort out all the rest of this stuff.
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