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86–931 PDF 2003

S. HRG. 107–931

IMMIGRATION REFORM AND THE

REORGANIZATION OF HOMELAND DEFENSE

HEARING

BEFORE THE

SUBCOMMITTEE ON IMMIGRATION

OF THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED SEVENTH CONGRESS

SECOND SESSION

JUNE 26, 2002

Serial No. J–107–90

Printed for the use of the Committee on the Judiciary

(

(II)

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

MARIA CANTWELL, Washington 

JOHN EDWARDS, North Carolina 

ORRIN G. HATCH, Utah 

STROM THURMOND, South Carolina 

CHARLES E. GRASSLEY, Iowa 

ARLEN SPECTER, Pennsylvania 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

SAM BROWNBACK, Kansas 

MITCH MCCONNELL, Kentucky 

BRUCE A. COHEN, Majority Chief Counsel and Staff Director 

SHARON PROST, Minority Chief Counsel 

MAKAN DELRAHIM, Minority Staff Director 

SUBCOMMITTEE ON IMMIGRATION

EDWARD M. KENNEDY, Massachusetts, Chairman 

DIANNE FEINSTEIN, California 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

MARIA CANTWELL, Washington 

JOHN EDWARDS, North Carolina 

SAM BROWNBACK, Kansas 

ARLEN SPECTER, Pennsylvania 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

MELODY BARNES, Majority Chief Counsel 

STUART ANDERSON, Minority Chief Counsel 

(III)

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Brownback, Hon. Sam, a U.S. Senator from the State of Kansas ....................... 2

Cantwell, Hon. Maria, a U.S. Senator from the State of Washington, prepared 

statement .............................................................................................................. 36

Durbin, Hon. Richard J., a U.S. Senator from the State of Illinois .................... 5

Feinstein, Hon. Dianne, a U.S. Senator from the State of California ................. 4

Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa, prepared 

statement .............................................................................................................. 44

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah, prepared 

statement .............................................................................................................. 53

Kennedy, Hon. Edward M., a U.S. Senator from the State of Massachusetts ... 1

prepared statement .......................................................................................... 99

WITNESSES 

Hing, Bill Ong, Professor, University of California–Davis School of Law and 

Asian American Studies, on behalf of the National Asian Pacific American 

Legal Consortium, San Francisco, California .................................................... 10

Keener, Dana Marks, President, National Association of Immigration Judges, 

San Francisco, California .................................................................................... 14

Martin, David A., Professor of Law, University of Virginia School of Law, 

Charlottesville, Virginia ...................................................................................... 11

Walker, Kathleen Campbell, American Immigration Lawyers Association, El 

Paso, Texas ........................................................................................................... 7

SUBMISSIONS FOR THE RECORD 

American Civil Liberties Union, Timothy H. Edgar, Legislative Counsel, 

Washington, D.C., statement .............................................................................. 26

Center for Immigration Studies, Washington, D.C., charts ................................. 38

Hing, Bill Ong, Professor, University of California, Davis School of Law 

and Asian American Studies, National Advisory Council, National Asian 

Pacific American Legal Consortium, Washington, D.C., statement ................ 55

Institute for the Study of International Migration, Georgetown University, 

Susan F. Martin, Director, Andrew Schoenholtz, Director of Law and Policy 

Studies, Washington, D.C., statement ................................................................ 62

Keener, Dana Marks, President, National Association of Immigration Judges, 

Washington, D.C., statement .............................................................................. 70

Martin, David A., Doherty Professor of Law and Weber Research Professor 

of Civil Liberties and Human Rights, University of Virginia, Charlottesville, 

Virginia, statement .............................................................................................. 102

McCollum, Hon. Bill, former Member of Congress from the State of Florida, 

statement .............................................................................................................. 114

Walker, Kathleen Campbell, American Immigration Lawyers Association, 

Washington, D.C., statement .............................................................................. 119

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IMMIGRATION REFORM AND THE 

REORGANIZATION OF HOMELAND DEFENSE 

WEDNESDAY, JUNE 26, 2002

U.S. SENATE, SUBCOMMITTEE ON IMMIGRATION, COMMITTEE ON THE JUDICIARY, Washington, D.C. 

The Subcommittee met, pursuant to notice, at 2:13 p.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Edward M. Kennedy, Chairman of the Subcommittee, presiding. 

Present: Senators Kennedy, Feinstein, Durbin, and Brownback. 

STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR 

FROM THE STATE OF MASSACHUSETTS 

Chairman KENNEDY. We will come to order. 

Today, our Subcommittee considers the many immigration issues 

relating to homeland security reform. Immigration is a central part 

of our heritage and history, and essential to who we are as Americans. In defending the Nation, we cannot lose sight of our tradition 

as a Nation of immigrants and a safe haven for the oppressed. 

The administration’s proposal to include the Immigration and 

Naturalization Service in the new Department of Homeland Security raises serious questions about the consequences for immigration law and policy, and the adjudication of immigration services 

and benefits. 

Reorganization may help in some instances to improve the lines 

of command, but it is not a panacea. A reshuffling of agencies that 

fails to address such fundamental problems as poor informationsharing, inefficient management structures, and insufficient resources will do little to improve security for the American people. 

This is particularly true for the Immigration and Naturalization 

Service, which has been plagued with problems. Simply including 

immigration functions in a new, larger department, without instituting essential reforms, will not solve the agency’s problems and 

will not enhance our security. Simply put, reorganization without 

reform will not work. 

I have been working with Senator Brownback, Senator Feinstein, 

and others on this subcommittee to examine ways to restructure 

the INS and bring our immigration system into the 21st century. 

We have introduced comprehensive legislation to reform the agency 

and provide a more effective and efficient framework to meet our 

immigration responsibilities. 

With respect to the administration’s proposal, I am concerned 

about moving immigration service functions, such as naturalization 

2

and asylum and refugee adjudications, into a new department that 

has as its principal mission preventing terrorism. 

It will be difficult to transfer the enforcement functions of INS 

to the Department of Homeland Security and leave the service 

functions of INS in the Department of Justice. Under this scenario, 

the service functions, already the step-child of the INS, will be further neglected and weakened. In order to protect these very important service functions, it may be better to transfer all of INS to 

Homeland Security, but raise the status of immigration in that 

agency. 

Under the President’s plan, immigration is located in one of four 

divisions, the Border and Transportation Security Division—I know 

everyone has seen those organization charts—which gives little recognition to the need for close ties between the service and enforcement functions. 

To remedy this problem, a fifth division, Immigration Affairs, 

could be created that would contain bureaus of enforcement and 

immigration services set up along the lines of our legislation. This 

option would ensure better coordination between services and enforcement, institute much needed reforms in INS, and place services in a position where they could be a more equal partner in the 

mission. 

In any scenario, an Office of Juvenile Affairs, as proposed in our 

legislation, should be created, but it should not be placed in Homeland Security. 

We must also reconsider the best place for the Executive Office 

for Immigration Review, the immigration court system. Moving this 

office into a new security department would undermine its ability 

to independently hear and decide important immigration matters. 

Supporting is growing to create an independent agency to oversee 

this important function. 

Finally, I am concerned about the administration’s proposal to 

move the Department of State’s visa issuance function to the new 

Homeland Security Department. Consular officers are trained as 

diplomats to represent the U.S., and the manner in which they fulfill those duties can have a significant impact on our relations with 

foreign countries. With accurate and timely information, the State 

Department is well equipped to continue to handle the issuance of 

visas. We have already spent a lot of time on this issue, in terms 

of the border security issues to deal with those questions. 

I look forward to working with the administration and my colleagues to see that the current reorganization deals effectively with 

these important issues. I thank the witnesses for being with us and 

look forward to their testimony. I call on Senator Brownback. 

[The prepared statement of Senator Kennedy appears as a submission for the record.] 

STATEMENT OF HON. SAM BROWNBACK, A U.S. SENATOR 

FROM THE STATE OF KANSAS 

Senator BROWNBACK. Thank you, Mr. Chairman, for holding the 

hearing. It is an important topic and it is an important discussion 

for us to have. 

First, I would like to commend the President and Governor Ridge 

for their heartfelt commitment to enhancing the security of this 

3

great Nation. This is a great and noble task, and I admire them 

for their work. I support the President’s efforts to create a Homeland Security Department, and agree that the formation of that department is time-sensitive. We need to move forward rapidly. 

Still, we have to be careful that, despite the urgency, we get it 

right. As you just said, the two of us have been working on and 

studying INS reform for some time and agree on the importance of 

a coordinated immigration agency, true to a dual mission of immigration enforcement and immigration services. 

Mr. Chairman, I take great pride in the fact that the Border Security Act, which we and our colleagues on the committee drafted—

Senator Kyl, Senator Feinstein, Senator Hatch, and others—was 

intelligent and balanced. We were true both to our responsibility 

to protect our great Nation from those who mean us harm and to 

keep our country open to those who mean us well. 

As we consider not just restructuring the INS, but reconfiguring 

large segments of our Federal Government, we must be mindful of 

both of these responsibilities. We also must keep in mind that enforcing immigration laws is complex, and immigration enforcement 

goes well beyond any gatekeeper function. 

Not only do we need to intercept terrorists, but we also need to 

investigate fraud, remove criminal aliens, and enforce employmentrelated immigration laws. Additionally, immigration functions are 

not limited to the ports of entry. In fact, they extend to a wide 

array of determinations that are made within the United States. 

Those determinations range from naturalization and citizenship 

applications, to family and business petitions, to work permits and 

employer sanctions. These are the services that are currently provided by the INS, and we must be careful that in our rightful zeal 

to thwart terrorism we don’t alienate our families, friends, and 

business partners in the process. 

The role of services to enforcement and security cannot be overlooked. Good services mean good security. Prompt adjudication 

closes security loopholes and deters fraud, all the while showing 

proper regard for the families, businesses, and aspiring citizens 

that file those applications. 

In the immigration context, enforcement and services must be coordinated. They must operate hand-in-hand. We can, and must, enforce the immigration laws effectively and provide timely and competent immigration services. This must take place wherever immigration responsibilities are located. 

Mr. Chairman, I appreciate your concerns about the movement 

particularly of the EOIR away from the Justice Department. We 

certainly do not want to compromise unbiased courtroom review of 

immigration cases, and we should either keep the immigration 

court system with the Department of Justice or set up an independent agency. This is a topic worthy of further discussion. 

I look forward to us working on this, and I would want to join 

a comment that the chairman made about we had already put forward a proposal for restructuring of the INS. I don’t think it serves 

us well to move an agency lock, stock and barrel but not reform 

it. 

INS was broken before the proposal for a Homeland Security 

Agency. It remains that way and it needs to be fixed before it goes 

4

anywhere or stays where it is. I think we need to get this right and 

we need to do it right. We have a proposal that we have put forward, the House of Representatives has passed a proposal, and the 

administration has put forward a proposal. I am hopeful that we 

can work those together, get this agency formed the right way, and 

get us moving further down the road. 

Thank you for holding the hearing. 

Chairman KENNEDY. Thank you. 

Senator Feinstein? 

STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR 

FROM THE STATE OF CALIFORNIA 

Senator FEINSTEIN. Thanks very much, Mr. Chairman. I would 

just like to begin by acknowledging the presence of two distinguished Californians. You have the good taste of knowing where 

the body of knowledge on this issue rests and I commend you for 

it. 

I would like particularly to acknowledge the presence of Professor Bill Ong Hing, of the University of California at Davis 

School of Law, and Judge Dana Marks Keener, President of the 

National Association of Immigration Judges. They are both San 

Francisco residents, and so it is great to have you here. 

Mr. Chairman, this is now my third hearing. Yesterday, the Terrorism and Technology Subcommittee heard Senator Rudman on 

his report. We heard from Governor Gilmore on his, and two experts from Brookings and one from the Cato Institute. This morning, the full committee heard Governor Ridge make his presentation. 

As you know, the Hart-Rudman Commission recommended that 

just the Border Patrol go into a homeland defense or security type 

agency. As I have watched INS over the past decade, I would like 

to just kind of summarize what I have seen. 

What I have seen is dramatic mission overload, and then, second, 

equally dramatic mission conflict. By that I mean the humanitarian concerns versus the national security concerns which, of 

course, have been crystallized by what happened on 9/11. 

The agency, although it has enforcement functions, keeps getting 

humanitarian-type messages, I think, both from the Congress as 

well as from the organizations that traditionally lobby here. Therefore, what has evolved is an organization that really isn’t tightly 

controlled, has this mission conflict, is technologically insufficient, 

and does not have adequate modern management oversight. It has 

created almost a paralysis in certain areas. 

We have seen since 9/11 that the INS suffers from a lack of highquality information on potential threats to national security. 

Senator you mentioned that you didn’t think the visa authority 

ought to be in the new homeland defense agency. I do. Senator Kyl 

and I conducted a hearing. We had Mary Ryan, from the State Department, who presides over the consular affairs offices, and she 

told us that when the hijackers came in for visas in Saudi Arabia, 

they looked in their system and they had no intelligence about 

those hijackers. As a matter of fact, she got very upset because she 

said ‘‘we granted their visas and we feel like we ran over a child 

on the highway; that is how badly we feel about it.’’

5

It really pointed out that, at least in terms of our systems, national security certainly wasn’t a concern in giving visas. It is 

today, and therefore I feel very strongly that the visa aspects ought 

to be in the department. I feel very strongly that there is good evidence to say that enforcement and service, because they have been 

so conflicted within the agency, might be better approached in separate agencies. 

Now, having said that, I asked the question this morning of Governor Ridge and I pointed out to him that we have 5,000 unaccompanied children who are in custody under INS today, with no resort 

to counsel, with no resort to an ad litem guardian, unable to speak 

the language. 

If you look back at Elian Gonzalez, if it weren’t for his having 

a family in Miami, he could well have been in an institution somewhere for a long time. There are 5,000 children like that on any 

given day of the year. We have been trying to change that. 

I said to Governor Ridge that I don’t think that an office of children’s services should be in the homeland defense agency. I don’t 

think that marriage fraud should be part of the mission of homeland defense. I don’t think that workplace inspections should be 

part of homeland defense. I think it will just deter homeland defense. 

In any event, my own view at this stage is that there are certain 

aspects of immigration that might well be transferred into a homeland defense agency, but I think we should take our time and look 

very carefully at what they are, because we do have a mission and 

national security as well as humanitarian efforts are part of that 

mission. 

I am just not sure that if we put the entire INS within a huge, 

mega department that we are going to accomplish anything in 

terms of seeing that the service, as well as the enforcement, is well 

carried out. 

Thank you. 

Chairman KENNEDY. Thank you very much. 

Senator Durbin has joined us. 

STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR 

FROM THE STATE OF ILLINOIS 

Senator DURBIN. Thanks, Chairman, and I thank you and Senator Brownback for this hearing today. 

I certainly listened carefully to my colleague, Senator Feinstein, 

and would agree with her general review of the Immigration and 

Naturalization Service. I might add, as well, that when it comes to 

technology, we are going to have to make some fundamental decisions here about the Immigration and Naturalization Service and 

the improvement of technology and how it will be used. 

We just recently were told that the INS efforts to track one million international students in this country is behind schedule. Last 

month, Glen Fine, the Justice Department’s Inspector General, said 

that the integration of the INS biometric fingerprint ID system and 

the FBI’s fingerprint IAFIS system, quote, ‘‘remains years away.’’

In August of last year, the Inspector General concluded that the 

INS had failed to meet a mandate created by Congress in 1996 to 

6

have an automated entry and exit control system. Six years and it 

hasn’t happened. 

When you think about the reorganization into a homeland security agency, it really calls into question our commitment to establishing modern technology in all of these agencies. 

Back in 1939, scientists in America discovered nuclear fission. 

President Franklin Roosevelt created something called the Uranium Committee to decide whether or not that had a military application. It went nowhere, and then came Pearl Harbor, and in 

1942 he appointed General Leslie Groves to be head of the Manhattan Project and gave him power, and $2 billion, I might add—$20 

billion by today’s standards—to pursue the Manhattan Project. 

I think as we take a look at reorganization and moving boxes on 

charts, we ought to be asking some basic and fundamental questions about information technology and how it will be used by the 

FBI, by the INS, by the CIA and the NSA, all of these agencies. 

That should be an important part of this conversation. 

The Justice Department said 3 weeks ago we are going to fingerprint and photograph millions of visa applicants coming into the 

United States. When? How? They certainly don’t have the capability today to even consider that possibility. I think that has to be 

part of our consideration, too. 

I am a cosponsor of Senator Kennedy’s bill, and I will just close 

by adding one other footnote. I think history tells us that the biggest problems faced by those who want to emigrate to the United 

States come at times when the United States is facing an economic 

downturn or questions of security. We are facing both today, and 

I hope that the conversation about immigration, which is so critical 

in our past and to our future, is taken in a context that really is 

positive rather than negative. 

Thank you, Mr. Chairman. 

Chairman KENNEDY. Thank you very much. 

Kathleen Walker testified before this committee earlier this year 

and it is a privilege to welcome her back. She is an attorney in El 

Paso, Texas, where she specializes in immigration, customs, and 

international transactions. She is a past president of the American 

Immigration Lawyers Association and has served on the National 

Board of Governors of the organization. She has also served as a 

board member of the Board of Trade Alliance and on the Texas 

Board on Infrastructure Coalition. 

She was appointed to the State of Texas Comptroller of Public 

Accountants’ Border Advisory Committee by the Comptroller. She 

is currently involved with the Immigration Subcommittee of the 

U.S. Chamber of Commerce. We want to welcome her back and 

thank her very much for being here. 

Bill Ong Hing is a Professor of Law and Asian American Studies 

at the University of California at Davis. He is a member of the National Asian Pacific American Legal Consortium’s National Advisory Council, and volunteers as general counsel of the Immigrant 

Legal Resource Center in San Francisco, which he founded. 

He was appointed to the Justice Department’s National Advisory 

Council by then-Attorney General Janet Reno to advise the Attorney General with regard to immigration, naturalization, and Border Patrol training and misconduct. He is the author of several 

7

books on immigration and has represented immigrants before the 

INS for 30 years. 

You are very welcome here, Professor. 

David Martin is an expert on refugee, asylum, and immigration 

issues. He joined the faculty of the University of Virginia Law 

School in 1980, where he has taught citizenship, immigration and 

refugee law, and international human rights. He previously served 

as a special assistant to the Assistant Secretary of State for 

Human Rights and Humanitarian Affairs, and as General Counsel 

of the INS. He is currently Chair of the German Marshall Fund 

Project on Dual Nationality and of a working group on the same 

subject for the Carnegie Endowment Citizenship Project. 

We are thankful for your presence here, Professor. 

Dana Marks Keener has been an immigration judge at the U.S. 

Department of Justice’s Executive Office for Immigration Review 

since 1987. She has served as a temporary board member of the 

Board of Immigration Appeals and is co-editor of the Immigration 

Judges Bench Book. She is President of the National Association 

of Immigration Judges and a member of the International Association of Refugee Law Judges. Before joining the bench, she was a 

partner in the immigration law firm of Simons and Unger. 

Each of our witnesses has very significant experience in the field 

of immigration law and policy. We are grateful to them for being 

will to share that information with us here today and thank them 

for coming. 

We will start with you, Ms. Walker. 

STATEMENT OF KATHLEEN CAMPBELL WALKER, AMERICAN 

IMMIGRATION LAWYERS ASSOCIATION, EL PASO, TEXAS 

Ms. WALKER. Chairman Kennedy and distinguished members of 

the committee, thank you so much for the opportunity to come back 

and provide this testimony on behalf of the American Immigration 

Lawyers Association. It was founded in 1946 and is comprised of 

about 8,000 attorneys and professors dealing with immigration 

issues here in the United States. We truly appreciate the opportunity to participate in the process with you. 

Secondarily, it is an honor and a privilege to be able to discuss 

this critical development regarding the Office of Homeland Security 

and its impact on immigration issues. Certainly, we are very concerned that we work with you in the process, and we enjoyed that 

opportunity on the border security bill and will try to do so again 

here, but we have numerous concerns. 

From my perspective, being on the border for about 16 years and 

looking across everyday when I go into work to Mexico, I know that 

we have talked about border issues in the past, and border security 

and integration of agency activity. Whether it be moving boxes or 

not, the fundamental issues of management, of structure, of staffing, of supervision, of funding—if those are not, as you have already all noted earlier, dealt with, whether we move it into the Office of Homeland Security or somewhere else, it will not be a success. And we would hope that we would be able to assist in making 

this a success. 

Certainly, we believe it is an opportunity, as you, Senator 

Brownback, mentioned earlier—and Senator Kennedy, your bill, 

8

2444, and Senator Durbin, you as well—with this option, if we can 

manage to get it reorganized and restructured to actually perhaps 

be non-dysfunctional, then we believe that if it goes into the Office 

of Homeland Security, we at least have a better shot at being effective. 

Isn’t the bottom line here that we are trying to deal with national security? How do we manage to be most effective to achieve 

that goal? With a dysfunctional agency dropped into another large 

organization, we have strong concerns. 

In addition to that, think of the opportunity to also dovetail this 

into the ability to make legal immigration the norm by addressing 

labor needs that we have documented that we have either through 

a temporary worker program or not, or some other alternative. 

In addition to that, what if we also look at the fact of dealing 

with people who are already here, hard-working people who desire 

to be legal, pull them out from the underground and make them 

participants in our society—we already know we need them—and 

give them a status? We believe that is an important part of this. 

Don’t forget, we have Mexico down there that needs us to go 

ahead and give them an avenue to assist us in achieving our goals. 

If we want a North American perimeter security zone, we need to 

be working with our trade partners to achieve it as a part of this, 

indeed make it an improvement of homeland security and also a 

part of North American security. 

As far as what happens to immigration in the Office of Homeland 

Security, what we are hoping you would consider is perhaps a fifth 

prong, as Senator Brownback mentioned. We have been struggling 

that we should not use the ‘‘fifth column’’ reference. We would suggest a fifth prong or division in which one would place immigration 

services and security, and leave transportation on the other side of 

the blocks; in other words, divert the two. 

Now, as to whether or not the Coast Guard and the Customs 

Service and APHIS also come into play within immigration services, it will be a matter of debate. I recognize that in the inspections context, you have those agencies working together, but until 

immigration is fully functional, perhaps a transitional phase is better to consider than dumping them all into one big block at this 

point in time. 

I just know that the Homeland Security Office can serve a pivotal function in review and coordination that we have not had before in other attempts through the border coordination initiative or 

through unified port management. But it will be very difficult to 

coordinate all those bodies effectively, and we don’t need to be uncoordinated at a time of heightened national security concerns. 

We are also hopeful that we will have basically a border security 

division within this new prong, as well as immigration services and 

interior security. The predominant concern I have on just focusing 

on border security alone and dumping in inspections with the Border Patrol—inspections is that point where it is enforcement and 

adjudications tied together. 

If I am just sitting there at primary inspections, really you can 

deal more with the data base check and leave secondary from a 

benefits perspective. So that is a consideration. Immigration services—of course, adjudications would fill in that area, as well as secVerDate Mar 21 2002 11:31 May 22, 2003 Jkt 086931 PO 00000 Frm 00012 Fmt 6633 Sfmt 6633 C:\HEARINGS\86931.TXT SJUD4 PsN: CMORC
9

ondary inspections. Finally, interior security would be investigations, detention, and removal. 

We also encourage you to consider the creation of a separate office under the Homeland Security Secretary of a civil rights division. We need to make sure that the public understands we still 

care and value treating people fairly. The tendency in an enforcement agency to not be as sensitive to ethnicity is high, and so we 

would hope that you would be able to consider that option. 

In addition, as you stated earlier, as to the Executive Office for 

Immigration Review, who wants a boss who is dealing with both 

the prosecutor and the judge? It doesn’t really allow for an effective 

review process. We support either an independent agency or an Article I court. 

As for visa processing, Senator Feinstein, I respect your opinion 

greatly. I served as National Chairman of the Department of State 

Liaison Committee for AILA for 3 years and have been in that area 

of consular work for 16 years. Foreign policy and visa services, consular affairs, are hand-in-hand. The Secretary of State, through 

Consular Affairs, actually has been commended for their management. 

As to national security not being an issue, I feel that the security 

advisory opinion process that they have had in place for years 

shows that they are very concerned. But if you don’t have the name 

in the computer, how are they going to find you, and what can I 

ask you to know that you are going to become a terrorist, to be able 

to discern that just in a personal interview? 

I want them to have the capacity to do that through added technology, added assistance, but I know that if I am trying to get certain trade negotiations dealt with or I want to protect U.S. citizens 

abroad or I need a deal from a particular country I am working 

with, I may coordinate that with my visa policy. Those are foreign 

policy issues. 

We need to let them do their work, but at the same time allow 

the Office of Homeland Security to work with the Secretary of 

State in order to achieve those goals. 

So that really sums up the discussion I have and I appreciate 

your patience. Basically, it is that let’s go ahead and get it reorganized, use Senate bill 2444 for its purpose, don’t lose the opportunity to make legality the norm on a going-forward basis, deal 

with our labor needs and facilitate it legally so we won’t have this 

magnet, and finally go ahead and discuss the alternatives in-depth 

about the actual utility of moving these people from one category 

to another. 

Thank you very much. 

[The prepared statement of Ms. Walker appears as a submission 

for the record.] 

Chairman KENNEDY. Thank you very much. 

Professor Hing? 

10

STATEMENT OF BILL ONG HING, PROFESSOR, UNIVERSITY OF 

CALIFORNIA-DAVIS SCHOOL OF LAW AND ASIAN AMERICAN 

STUDIES, ON BEHALF OF THE NATIONAL ASIAN PACIFIC 

AMERICAN LEGAL CONSORTIUM, SAN FRANCISCO, CALIFORNIA 

Mr. HING. Thank you. On behalf of the National Asian Pacific 

American Legal Consortium, I would like to thank Chairman Kennedy and Ranking Minority Member Senator Brownback for inviting us here to testify. 

Almost two-thirds of the Asian American population are immigrants, and approximately one-third of the immigrants who come 

to the United States each year are from Asia, mainly to join other 

family members already here. As a result, the ability of the INS 

to function fairly, efficiently, and effectively has a significant effect 

on our community. 

While having the Department of Homeland Security take over 

INS functions may seem attractive to some, the question that has 

to be answered is whether it makes sense. Implicit in this inquiry 

is a principle recognized by Congress in the Enhanced Border Security and Visa Entry Reform Act. Our most effective security strategy is to improve pre-screening of immigrants so as to keep out 

those who mean to do us harm, while admitting those who come 

to build America and make our Nation stronger. 

The vast majority of immigrants and non-immigrants are simply 

not relevant to the issue of national security, and to make them so 

would pose an unnecessary distraction and a drain on resources of 

the new Homeland Security Department. 

Long before September 11, INS miscues provided legitimate fodder for criticism and calls for reform, and even dismantling of the 

agency. But the need to reform INS and the need to provide better 

national security should not be confused. The temptation to 

conflate the two issues is enticing. They are related, but they are 

separate issues. 

A successful reorganization of INS within an environment of an 

even more massive Government restructuring is highly unlikely. 

Moving INS may very well make it even more dysfunctional. Not 

only are family reunification and visa employment issues important 

for relatives and businesses, but immigration is vital to many parts 

of the United States. 

As population declines in regions of the country such as Iowa, 

Pittsburgh, Philadelphia, Louisville and Baltimore, leaders in those 

areas recognize the need to attract more immigrants. They are 

looking to Washington for assistance in facilitating the entry of 

workers and families to their regions, knowing that immigrants 

can help to revitalize and sustain their communities. 

The Department of Homeland Security simply cannot subsume 

every function of our national Government that encompasses a national security concern, but it can develop the expertise and focus 

to collect, process, and share anti-terrorism information with the 

entities responsible for administering the broad policy areas that 

cannot be effectively administered by one gargantuan agency. 

But should Congress deem it necessary to at least transfer some 

border enforcement functions to the new department, immigration 

11

and naturalization services should nevertheless remain within the 

Department of Justice and the State Department. 

Services such as naturalization, green card processing, refugee 

and asylum processing, and employment-based visas need to be an 

in agency better able to foster a professional service mission and 

attract employees who have the skills and temperament suited for 

providing services to families, individuals, and businesses. 

While service and enforcement functions of the INS clearly have 

areas of overlap, scrutiny of exclusion grounds does not have to be 

sacrificed in the development of a separate visa and naturalization 

service entity. Given cutting-edge technology that has been available for years from Silicon Valley-type companies but never implemented at the INS, issues of data storage, confidentiality, high-volume traffic, interagency communication, access, and security are 

quite possible. 

In conclusion, let’s be clear. As currently proposed, the homeland 

security initiative goes too far. By subsuming many functions from 

over 20 agencies that have little to do with national security, we 

have to wonder. Service functions in the current INS are already 

marginalized by a pervasive enforcement culture, and it is a pipe 

dream to think that if INS is moved in its entirety to the Homeland Security Department, a reorganization plan can fully protect 

service functions. 

As an advisor to then-INS Commissioner Meissner, I witnessed 

constant frustration over attempts to professionalize many positions in the agency through better training, only to be derailed by 

a culture in the field that reinforced the old approach. 

The problem of the Immigration and Naturalization Service as a 

second-class function in a new homeland security department will 

only get worse. Let’s not sweep away rationality in our attempt to 

search for enemies. 

Thanks. 

[The prepared statement of Mr. Hing appears as a submission for 

the record.] 

Chairman KENNEDY. Professor Martin? 

STATEMENT OF DAVID A. MARTIN, PROFESSOR OF LAW, UNIVERSITY OF VIRGINIA SCHOOL OF LAW, CHARLOTTESVILLE, 

VIRGINIA 

Mr. MARTIN. Mr. Chairman, Senator Brownback, Senator Feinstein, I really appreciate the invitation to appear before you today. 

As you know, we have been debating INS reorganization for well 

over 5 years. There were solid plans, pretty detailed plans in place 

in 1997 when I left office as INS General Counsel. I really expected 

we would be in a stage of implementing them within the Department of Justice by now. 

Nonetheless, we now have a new context and, of course, a new 

urgency for considering reorganization questions—the President’s 

proposal for a Homeland Security Department. I offer in my testimony, my prepared statement, three main points to keep in mind 

in considering how the immigration function should be dealt with 

in this new context. 

First of all, immigration is about more than just enforcement and 

dangers. Although I hope that we will take from the September 11 

12

events a determination to provide more resolute and consistent immigration enforcement, not only with regard to terrorists and 

criminals but more generally in effective enforcement of even more 

routine parts of the immigration laws, it is still very important 

that we not over-learn that lesson. 

Perhaps the greatest risk of moving the immigration function to 

the Homeland Security Department is that we will lose sight of the 

positive side of immigration. I am particularly concerned about 

functions such as refugee resettlement which, as you know, Mr. 

Chairman, has suffered greatly and has been slowed down perhaps 

more than any other part of immigration admissions. This impact 

on refugee admissions is of particular concern to me. 

The second point is that we should keep immigration services 

and enforcement closely linked. There has been wide agreement on 

some operational shift in all the reorganization plans I have seen 

to separate enforcement and services units in whatever new immigration agency is created, and that would enable some field office 

realignment that could carry a lot of benefits. I support that approach. 

But throughout the spring, we saw a growing recognition—and 

it is certainly reflected in the Kennedy-Brownback bill—of the importance of maintaining tight coordination and linkages between 

those units. I think that your bill provided a much better structure 

than the House bill for making sure that this new system would 

function in a way that recognizes those linkages. 

After the Homeland Security Department proposal was offered, 

many of those who worry about a deemphasis of services have revived the talk about a more rigid split, and you have seen some of 

that in the statements here today. I believe that would be a mistake. I do not think we should leave the services component back 

in the Justice Department or put it in some other location. 

Although I certainly understand the impulse and the reasoning 

behind that, and I share that concern greatly about a deemphasis 

of services, leaving services in a different department would have 

the opposite effect from what is intended. I think it would result 

in a loss of clout, of effectiveness for that particular component, for 

the services component. It would be a small unit in the department, a kind of vestigial unit. 

I think there are better ways to do that, to deal with that concern within the structure of the Homeland Security Department 

itself, although it is a close question. It is certainly an arguable 

call. The impulse is right. I think we have to be very careful about 

what the impact would be. 

Immigration management, in my view, should be seen as a unified whole. It involves services, the positive side of immigration. It 

involves enforcement, and it really needs to be thought of as an immigration management function overall. The pieces should be kept 

together. 

The third point is that immigration deserves ongoing, high-level 

attention. It has been getting that for the last decade or so in the 

Justice Department. It is a bit unfortunate from that point of view 

that it is now proposed to be moved to another department. 

I outline a recommendation in my statement about how to best 

observe these principles—to provide for improved enforcement and 

13

coordination with homeland security efforts, while still recognizing 

the positive side of immigration, the services and humanitarian 

component. That goes along very much with one of the themes in 

Senator Kennedy’s opening statement; that is, to create a fifth division within the Homeland Security Department, to split the immigration function out away from border and transportation security 

and give it its own undersecretary. 

Managing the movement of human beings is sufficiently distinct 

and important from the other tasks of that department to justify 

that kind of a change. I believe we would still retain most of the 

benefits of coordination with other units, with other protection 

functions that are sought to be obtained by creating a Homeland 

Security Department, because those units would also be within the 

same department. 

But creating an undersecretary who focuses only on immigration 

would afford a great many benefits. That undersecretary will keep 

in mind the full richness of our immigration tradition, and I think 

by the very nature of the task, if that person is able to focus in that 

way, he or she will give priority to services. Then internally that 

unit can be structured in a way that would be very similar to the 

Kennedy-Brownback bill. It is quite important to use this occasion 

not just to move INS as it is, but to restructure. 

Let me just mention briefly two further structural suggestions 

that I offer in the testimony. I think probably the visa function 

should be moved to this new department, although I don’t fully understand exactly what is intended in the President’s proposal and 

I would certainly like to look at what other options might be on 

that. 

Finally, I think that the Executive Office for Immigration Review 

should probably go to the Homeland Security Department, although that is also a close question, and it would report to the undersecretary. 

Some are pushing for EOIR to become an independent commission. I fully support the notion of the independence of the immigration judges and the Board of Immigration Appeals in making their 

own individual decisions. It is important to safeguard that. We can 

make some changes to further that end, but I do think that EOIR 

needs to be linked to the rest of the immigration function for managerial and logistical purposes. 

Sometimes, we need to deploy immigration judges on a priority 

basis, for example, to respond to a sudden influx, and quick action 

can keep a minor situation from turning into a major crisis. For 

these kinds of managerial and logistical purposes, it is important 

to keep those units together, and I offer some further development 

in the testimony about how I think that can be done. I also deal 

there with some further questions such as the referral authority 

that now exists with the Attorney General. 

Thank you very much. 

[The prepared statement of Mr. Martin appears as a submission 

for the record.] 

Chairman KENNEDY. Thank you very much. 

Judge Keener? 

14

STATEMENT OF DANA MARKS KEENER, PRESIDENT, NATIONAL ASSOCIATION OF IMMIGRATION JUDGES, SAN FRANCISCO, CALIFORNIA 

Judge KEENER. Mr. Chairman, members of the subcommittee, I 

thank you for the opportunity to testify. 

First, I would like to convey the regrets of former Congressman 

Bill McCollum, who was unable to appear today, and place his testimony in the record. I am especially pleased to be able to do that 

because I agree with it. I would have done it in any event. 

[The prepared statement of Mr. McCollum appears as a submission for the record.] 

Judge KEENER. I am appearing on behalf of the National Association of Immigration Judges to provide you with our perspective of 

where the immigration courts should be located during these reorganization efforts. 

I am the President of the Association, which is the certified representative of the approximately 228 immigration judges nationwide. In that capacity, the opinions I offer are the consensus of the 

members and they may or may not coincide with any official position taken by the Department of Justice. 

In January of this year, the Association published a position 

paper advocating increased independence for the immigration 

courts. We are submitting that paper as part of today’s written testimony for your full consideration. Now, I would like to highlight 

the major premise of that paper and bring our views current with 

the context of the Homeland Security Department and reorganization. 

Our paper recommended the adoption of the 1997 proposal from 

the U.S. Commission on Immigration Reform that EOIR be located 

in an independent executive branch agency. This proposal is an exhaustively researched bipartisan plan which was the culmination of 

years of study involving all of the parties involved in immigration 

adjudications. 

Creating an independent agency would satisfy our paramount 

concern of protecting America’s most fundamental legal value—due 

process. This solution would strike an appropriate balance of powers in this extremely sensitive area. In addition, we believe independence could provide much needed oversight on various immigration-related functions and become a vehicle for increasing efficiency. 

EOIR was created in 1983. Yet, the historical reasons for the separation of these functions from INS are even more compelling 

today. The immigration courts decide more than 260,000 matters 

annually. Thus, administrative efficiency is a practical necessity. 

However, the need for public confidence in the impartiality of the 

system is equally great. 

When reduced to its simplest form, as witness Walker testified, 

any structure, be it the Department of Justice or Homeland Security, where the boss of the prosecutor is also the boss of the judge, 

is problematic. One does not need exotic legal training to find this 

a disturbing concept which creates, at the very minimum, the appearance of partiality. 

Perhaps the most blatant example of the susceptibility to improper influence which is inherent in the current structure relates 

15

to contempt authority. In 1996, Congress mandated contempt authority for immigration judges, but left the actual implementation 

to the Attorney General, who was required to promulgate regulations. 

Over 6 years later, there are no regulations. Rather, it is opening 

acknowledged that this recalcitrance is due primarily to the objection of the INS, who doesn’t want its attorney staff subjected to 

contempt provisions which are levied by other Department of Justice employees—the immigration judges. 

The promulgation of contempt authority would provide the immigration court with an important tool to enforce INS compliance 

with its orders and would serve to assure that alleged terrorists 

obey orders closing immigration proceedings for national security 

reasons. 

The Attorney General has issued new regulations for protective 

orders quite recently, but the current sanction of mandatory denial 

of discretionary relief is toothless, since these applicants are already statutorily barred from virtually all forms of relief. The 

prompt issuance of regulatory authority for contempt power could 

resolve this problem. 

The separation of the immigration court from the agency which 

houses the INS will also aid Congress and the American people by 

providing an independent source of statistical information to assist 

in determining whether the INS mandate is being carried out in 

a fair, impartial, and efficient manner. It can provide much needed 

oversight on various immigration-related functions and become a 

vehicle for enhancing productivity. 

Pursuant to DOJ policy, last year EOIR’s director established 

case completion goals which set target times for the adjudication 

of various types of cases. Yet, many judges view the INS as an impediment rather than a facilitator to timely case completions. 

For example, inordinate delays in INS processing times for visa 

petitions, INS forensic evaluations, overseas investigations, and the 

lack of prompt followup on FBI criminal record hits, are routine 

causes for the INS to request lengthy delays in proceedings. It is 

not uncommon for the INS to take a year or more to resolve such 

collateral issues. The lack of contempt powers hinders the ability 

of judges to require parties to meet timely deadlines to resolve 

these issues and to notify the court in advance so that we can safeguard precious docket time. 

Frankly, neither the Select Commission nor the Association anticipated that any reorganization would culminate in the departure 

of the INS from the Department of Justice. Now, that seems to be 

the approach favored, at least by the White House and by Commissioner Ziglar. 

But the Association would like to make its position perfectly 

clear. In the absence of an independent agency status, as recommended by the Commission, which remains our first choice, we 

believe that EOIR should remain at the Department of Justice. 

If the INS is transferred to the newly created Department of 

Homeland Security, then an alternative where the immigration 

courts and EOIR structure remain in the Department of Justice 

could serve as an acceptable stop-gap solution. Such a move would 

16

ensure some measure of judicial independence and would spare the 

expense of creating an independent agency. 

The Association has provided proposed language as an appendix 

to our written submission which would clarify the independent nature of the immigration judge decisions wherever the immigration 

courts are structurally situated. 

The optimal balance of efficiency, accountability, and impartiality 

would be achieved by adopting the Commission proposal of an independent executive branch agency. At a very minimum, this rationale, when modified to meet the current homeland security reorganization plan, would require maintenance of EOIR as an agency 

within the Department of Justice. 

Establishment of an independent immigration court would 

achieve meaningful reform in the current structure with a minimum of disruption and expense. It would restore public confidence 

and safeguard due process, providing insulation from any political 

agenda. We strongly urge you to adopt this approach. 

Thank you. 

[The prepared statement of Judge Keener appears as a submission for the record.] 

Chairman KENNEDY. Thank you very much. 

Let’s do 10-minute rounds. 

Part of the dilemma that many of us have in terms of where 

these enforcement and service functions ought to go concerns the 

present situation in the Justice Department. Over the recent years 

we have seen a tripling of the resources for the enforcement side, 

while the services side receives less support and remains more dependent on fees. So even now services are the step-child. 

If the service function goes to Homeland Security, what is going 

to happen to those people who are looking for asylum? Are the Immigration officials going to be looking at asylum seekers through 

the lens of someone who is going to be primarily concerned with 

terrorism or looking at them through the real definition of asylum? 

I ask you to help us think through this dilemma, Professor Martin, as well as the others on the panel as we grapple with this 

issue. We were faced the other day with a decision by the Department to fingerprint immigrants that were coming from certain 

countries. Then we had the announcement of job fairs for people 

from the same countries. 

So here we are examining people with visas who come in. We are 

making the decision that they can come in. We are fingerprinting 

them uniquely because they come from certain countries, and then 

we are trying to recruit them in the afternoon at job fairs to help 

us out. Talk about sending mixed messages. 

How are we going to try and avoid this situation? Can we do it? 

You are the people who have studied and watched this issue over 

the period of time, and have monitored trends, seen when solutions 

have been working, perhaps, and when they haven’t. 

We were looking at reorganization with Professor Martin about 

5 years ago at the time of the Jordan Commission and since then 

we have seen changes. How can you help us get the solution right 

this time? 

Mr. MARTIN. Well, if I could start with that one, to some extent 

unfortunately mixed messages are going to be inevitably part of 

17

this business because we do have mixed feelings as a society about 

immigration. We value it, but we fear it. At different times, depending on the economy, depending on perceived national security 

threats, we will take a different view. 

I think it is possible to structure it, though, so that we can even 

out some of those differences. But a lot of it will depend, of course, 

on the individual who happens to be in charge. That is part of why 

I favor placing the immigration function, assuming it goes to 

Homeland Security, at the level of undersecretary and give it that 

kind of prominence, someone who will inevitably have to deal day 

by day with the services side, the humanitarian side, as well as the 

enforcement side. 

Beyond that, on the services side, you are quite right. Part of the 

problem comes from the way services are funded through fees. The 

problem that we had sometimes when I was at INS was that it 

took a long time to do a study of fees, to justify it, to face down 

perhaps some possible litigation, and to justify the exact level at 

which the fees were set. By the time you get through that whole 

process, it could be obsolete; it is not completely funding what is 

needed. 

So I think we are probably looking at a situation where I think 

a minor change in that funding formula could allow for us to get 

out in front of that or allow for a constant cost of living increase. 

The main issue is how to structure the new department in a way 

that we don’t focus only on the negative side, the fear side, the enforcement side. Among the options available to us right now—none 

is perfect, but I think the odds are best with an undersecretary for 

immigration affairs in Homeland Security. 

Chairman KENNEDY. Let’s get into that issue later on. We hope 

you will give us your ideas on the fees and how to correct that 

problem then. 

Professor Hing and Ms. Walker, if you could comment on that. 

Mr. HING. Mr. Chairman, thank you. Let’s not underestimate 

what is available technologically today. The Immigration Service 

has—this may come as a surprise for me to say this, but has some 

very good people, some very well-meaning people that do not have 

the resources available that they need. 

A couple of years ago, I was actually retained by a Silicon Valley 

startup to negotiate with the Immigration Service over electronic 

filing possibilities of applications, and the Immigration Service was 

completely and totally blown away by what is available, what has 

been available, and what is not available to them. 

The reason I point that out is because I actually think that the 

type of technology that we need to provide the kind of screening 

that we all want of every non-immigrant and immigrant who enters the United States can be implemented. And if that is so, I do 

not believe that you need to have a Department of Homeland Security to implement that kind of screening. 

You do need their input on how to feed that information in or 

where to gather it and that type of stuff, but it can be readily available on an electronic look-out apparatus, and then we can all be 

happy. We can screen everyone, and the businesses that want to 

recruit these individuals do not have to be slowed up and those 

parts of the country that want to recruit immigrants can go ahead 

18

with the recruitment and those others that are having backlashes 

can take slower paces. 

I just don’t think that we should be afraid of going forward with 

security issues at a cost of legal immigration. They can be done simultaneously. 

Chairman KENNEDY. Well, I couldn’t agree with you more. We 

tried to do it but the CIA would never be willing to share that information with the INS. We tried to remedy that situation with our 

Border Security Act, focusing on a whole range of technology and 

redundancy within those systems, including using biometric devices 

and collecting information into the INS of passenger lists at ports 

of entry. 

We have a very elaborate system, but we have to look at it more 

broadly. 

If we are looking at immigration as enforcement and also services, it is enormously important, for the reasons all of you have testified, to see that the piece of this arrangement that gets short 

shrift is the services and the protection of people, whether unaccompanied children or asylum seekers or others. 

Ms. Walker? 

Ms. WALKER. Thank you, Chairman Kennedy. Just briefly to reiterate what Professor Martin indicated, having somebody up at the 

top with strength, showing the importance of the immigration issue 

itself, is important. 

In addition to that, I think we are forgetting, again, the two sides 

of the coin, adjudications and enforcement. The two complement 

one another. I want better adjudications, providing a security element, as well. The problem is implementation. 

I am sure that you all have read about the IBIS checks that were 

being conducted on the filing of petitions, and in New York they 

were turning away applicants. It turns out that INS didn’t realize 

they didn’t have people onsite trained in the ability to run those 

checks, nor did they have the facility to do it necessarily, and they 

had to send in basically a SWAT team to get it up and running. 

That is just regarding those checks. 

And something even more simplistic: let’s talk about being able 

to take money and facilitate travel. Have you ever waited 2 hours 

for the clerk to get back from lunch to pay your $6 to be able to 

have somebody enter the United States? It is that fundamental an 

issue. 

If we are talking about technology, I spent 2 days at the General 

Accounting Office study about biometrics, and then they came 

down to El Paso last week to listen to how biometrics might work 

or not work on the border. We don’t have the capacity yet to be 

able to effectively scan our laser visas. 

So great goals, but we have got to be able to figure out how we 

are really going to implement them and how we are really going 

to improve security overall. That is the task. 

Chairman KENNEDY. I just have a few seconds left. Judge Keener, just speaking for yourself, what proposal do you think would be 

best, creating an independent court system or keeping the immigration court system at Justice? 

Judge KEENER. Our top choice is the Commission’s recommendation because of the fact that we believe that was a study that was 

19

very thorough and done in cooler times when there were less emotional concerns. We believe that an independent agency is justified 

because of the stature of the kinds of cases we have to hear. They 

are death penalty cases. If an immigration judge makes a wrong 

call on somebody’s asylum application, we have sentenced that person potentially to death. 

We think it is appropriate to remain as an administrative agency 

so that the proper checks and balances are there, but we think an 

independent agency is the best choice. 

Chairman KENNEDY. Senator Brownback? 

Senator BROWNBACK. Thank you, Mr. Chairman. 

I want to thank all the panelists for their very clear testimony. 

It was excellent and very clear. I want to get some summary 

thoughts, if I can, to make sure I get it all clear from you. 

Professor Martin, both you and Ms. Walker support the move to 

the Homeland Security Agency of the INS service, in total, but the 

creation of a fifth branch within Homeland Security. I want to 

make sure I am correct with that with your testimony. 

Mr. MARTIN. If I could just clarify, my preference really would be 

for the function to remain at the Justice Department, but I think 

that is unrealistic in the present climate, and I do think it is important to keep the function together. So if pieces are moving to 

Homeland Security, which I think is inevitable, it is better to have 

the entire function there in a fifth unit. 

Senator BROWNBACK. So let’s pursue that line, if I could, for just 

a second. I think if people envision a Homeland Security Agency, 

they certainly see border security as being a part of that. You think 

it would be a worse situation to separate out border security and 

the services than to move border security, say, to the Homeland Security Agency but not move the services, leaving the services at the 

Justice Department. Is that correct? 

Mr. MARTIN. Yes, that is my judgment. I think it is most important to keep it together because it is really not two separate functions, services and enforcement. They are closely linked, as Ms. 

Walker said. It is an overall picture of immigration management 

and it works best if it is done together. I think we can best serve 

all the values that are talked about by keeping that unified. 

Senator BROWNBACK. This has been a topic you have talked 

about, thought about, and visited with a number of people for a 

long period of time as this topic of reorganization of INS has been 

going around. This isn’t something that has just been forced upon 

you to confront as a topic within the last few months. 

Mr. MARTIN. That is right. 

Senator BROWNBACK. Ms. Walker, as a practitioner, you believe 

this should be moved to Homeland Security, but created in a fifth 

division within Homeland Security? 

Ms. WALKER. I think I can reiterate what Professor Martin is 

saying that if it is going to be moved, it needs to be moved together. A practical example is when we talk about border security, 

the issue of Border Patrol is typically what we think about, and 

then we also include inspections. 

Inspections involves determination of asylum benefits, determination of final legal permanent resident status, how long you 

admit people to remain in the United States. A lot of our tourism 

20

and commerce is tied to facilitation of that entry, and how do we 

dump that into an enforcement context alone? I think it is risky 

business to not recognize the fact that that is an adjudication, a 

benefit issue. 

Senator BROWNBACK. So they need to stay together, the benefit 

and the enforcement functions. I agree that these seem to be very 

closely tied. Again, they are very different functions, really, but 

they do need to be tied together. 

Ms. WALKER. And it works on the flip side as well. I have an enforcement element in adjudications and in enforcement an adjudications element. I want the two to be important and I want to 

facilitate them and try to make them be successful from a national 

security perspective. They are like either side of a coin, as we have 

been discussing earlier. 

Senator BROWNBACK. Neither of you would want the move to 

take place absent a restructuring of the INS, as has been discussed 

in front of this committee before. Is that correct, Ms. Walker? 

Ms. WALKER. Yes, sir. If we are going to put something dysfunctional into something we are trying to make effective, it doesn’t 

seem to be the best route. 

Senator BROWNBACK. Professor? 

Mr. MARTIN. I do think we should use this occasion for restructuring, partly because it has been around for so long. We should 

have a pretty good idea of the overall new structure and really get 

people busy implementing it, instead of just moving a function, 

unreformed, to Homeland Security and then starting up the debate 

all over again. 

We are pretty close, I think, between your bill and the action the 

House recently took. The general outlines are pretty similar. It is 

really time to get moving on that, and it would do a lot for morale 

and it would do a lot for enabling us to move on to the kinds of 

micro improvements that I think are perhaps more important than 

reorganization, as Professor Hing was talking about, if we can settle the restructuring framework and begin the detailed process. It 

will take several years of really putting that in place. That will 

help the entire function enormously. 

Senator BROWNBACK. I want to add here I think we have got a 

lot of very qualified people that work within the INS. I think systems matter greatly, and if you put good people in a bad system, 

bad things can and still do happen. That is why systems are important, that you get your systems right, and that is why I think this 

is an important topic. 

Professor Hing, you don’t think this should be moved at all, and 

I respect your opinion on that and I think I pretty well understand 

the reasons why you are articulating that. Without looking at that 

topic, can you remove yourself from that point and ask what is it 

we should be changing within the function if it is moved? Do you 

move the whole thing or not? 

I recognize I am asking you to give an opinion on something you 

disagree with, but I would like to try to extract that from you, if 

I could. 

Mr. HING. Actually, I do address that in the written testimony. 

Thanks for the opportunity to respond to what you are positing. 

21

To me, the best way of looking at this is to look at specific examples of typical kinds of immigration cases, and I am not going to 

walk you through many of them, but I will give you a couple of examples. I encourage your staff to do this, to look at typical types 

of immigration cases. 

How often does a national security or even an enforcement issue 

come up in a typical non-immigrant case, an adjustment of status 

case, a naturalization case, a refugee case? Hardly ever. 

Senator BROWNBACK. It is a legitimate point that you make. 

Mr. HING. What happens is the only sort of security issue or enforcement issue that comes up is with respect to whether or not the 

person has a past criminal background, and that is done by FBI 

fingerprint checking and Interpol checking. That, I hope, can be 

improved. It is already not that bad, but it would be done even better. 

So that is why, in my view, if you are going to move most of INS 

to the new department, I would not move the service function over 

because they can be disconnected. It is not that complicated to disconnect them. I disagree, with respect, with the colleagues on both 

sides of me. They are not that connected, they can be separated. 

Walk through typical examples; it is not that hard. 

The truth is that if there is a separate service entity—it existed 

before historically when it was in the Department of Labor. You 

know, we are going way back now and that kind of thing, but there 

was a time when immigration was processed in a separate department and everything was fine. In the early 1900’s, many, many 

more people came in than come in today, and it was handled quite 

fine. I am afraid of the atmosphere that is going to take over at 

the Department of Homeland Security. 

Senator BROWNBACK. I think that is actually the concern of both 

of your colleagues. They think it would be probably better if you 

kept it together. But your opinion would be, if you are going to 

move something, move border security, but not the services function. So you would bifurcate, you would separate those issues out. 

Mr. HING. That is right, that is exactly right. 

Senator BROWNBACK. And you say that as a practitioner and just 

a very pragmatic example of——

Mr. HING. Exactly. I have been at the border many times. I was 

just there 2 weeks ago on an inspection. I continue to do that. I 

have written in opposition to Operation Gatekeeper, quite honestly, 

and I know what is happening at the border. But I know what 

needs to happen, and it has a lot to do with security. 

Senator BROWNBACK. Ms. Walker, you are a practitioner as well 

and you come to a different conclusion on this very point as a practitioner. Why do you come to a different conclusion on that point? 

Ms. WALKER. Reasonable minds can differ, but the reason mine 

differs in this circumstance is I am at the border for 16 years. That 

has got to mean something, and we also deal a lot with the consulates in Mexico and the coordination of those activities. 

I know that right now, even without the emphasis on enforcement as much, the inspectors at our ports of entry have more of 

a bend to be enforcement-minded than anything else. 

On a regular basis, I am having to deal with problems regarding 

inspections because inspectors are not following the law or inspecVerDate Mar 21 2002 11:31 May 22, 2003 Jkt 086931 PO 00000 Frm 00025 Fmt 6633 Sfmt 6633 C:\HEARINGS\86931.TXT SJUD4 PsN: CMORC
22

tors are abusing someone based on their nationality or inspectors 

can’t figure out that somebody is a U.S. citizen, so they assume to 

the contrary because we don’t document our U.S. citizens. I think 

it is very important that you keep the two together to coordinate 

them, period. 

Senator BROWNBACK. One final quick point, if I could ask this, 

on the visa area there is a dispute here as well about where that 

function should be handled. Some of you support leaving it at the 

State Department and others of you would support pulling it out. 

Professor Martin, you must have wrestled with this issue when 

you were in INS. Why do you come down the way you do on this? 

Mr. MARTIN. Well, I think that is a close call and I do not think 

that is an area that had been a major problem. If there were not 

a very large-scale reorganization already on the table, I don’t think 

I would be supporting that. I would like to look more closely at 

what the various options are. 

But I am inclined to think that it makes more sense, given the 

large-scale reorganization we are doing and given the need for consular officers to be applying the same standards, the same understanding of the laws and regulations, as the inspectors at the border, that it makes sense to look closely at least at putting those 

two functions together. 

Senator BROWNBACK. I think it is a big issue because you look 

at September 11 and many people look at that and say if we had 

caught this earlier, we wouldn’t have had this problem. It is a close 

call. 

I want to thank the panel. I think it was an excellent discussion. 

Judge Keener, I don’t have questions for you because I understand 

clearly where you are coming from on the issue and you have articulated that here. 

Mr. Chairman, I want to ask unanimous consent to submit Senator Hatch’s statement for the record, if I could. 

Chairman KENNEDY. We will have it printed. 

Senator Feinstein? 

Senator FEINSTEIN. Thanks very much, Mr. Chairman. While I 

have been listening to this, I have also been reading some very interesting material and I just wanted to share it with people. 

A few years ago, a study was done by the Center for Immigration 

Studies of 48 individuals, all of whom have either been convicted 

or pled guilty to terrorist attacks in this country. Eleven were either convicted or admitted plotting New York landmark attacks, 

two New York subway attacks. Four were convicted of the African 

embassy bombings; 7 of the first World Trade Center bombing; 20, 

including Zacarias Moussaoui, of 9/11, and Moussaoui has not been 

convicted, obviously; 3 of the Millennium plot; and 1 of the murder 

of CIA employees. 

It is very interesting what that study found, because it covers the 

immigration area. Now, these are all people that are guilty of terrorism or planning terrorism. Twenty-six had no prior violation of 

immigration law. Sixteen of them, or one-third of the 48 terrorists, 

were on temporary visas, primarily tourist visas. Seventeen of the 

48 were lawful permanent residents or naturalized U.S. citizens. 

Twelve, or one-fourth, were illegal aliens, and 3 of the 48 had applications for asylum pending. 

23

Now, I say this to really show that this group of 48 convicted or 

admitted terrorists sort of spans the immigration spectrum. The 

two terrorists, Sheik Rahman and Ali Mohammed, who were terrorists involved in the 1993 World Trade Center incident, were on 

the terrorist watch list, but they still got visas. That is one of the 

reasons I think the visa aspect has to go into this new agency for 

sure. 

The case of Khalid al Midhar, who may have piloted American 

Airlines flight 77 into the Pentagon, shows why information-sharing must be improved. Most reports indicate that in January 2001, 

while he was out of the country, the CIA actually had information 

that al Midhar was involved in the attack on the U.S.S. Cole. However, his name was not put on the watch list until August of 2001, 

and that was a month after he already reentered the United 

States. 

Three September 11 terrorists were never interviewed by the 

American consulate. According to my sources, Abdulaziz Alomari, 

Salem al Hamzi, and Khalid al Midhar obtained their visas using 

a system called Visa Express, which is used by the American consulate in Saudi Arabia to speed up the visa application process. 

They were never interviewed. 

I think one way of looking at this is to look back at people who 

have violated our system who are actually the guilty ones. So far, 

in the United States, 48 people have either been convicted or admitted participating in terrorist plots. 

If you look at the list—and I would like to, if I might, Mr. Chairman, put into the record a chart which contains the names of each 

and their immigration status. 

Chairman KENNEDY. Without objection, so ordered. 

[The information referred to appears as a submission for the 

record.] 

Senator FEINSTEIN. It really indicates why Governor Ridge has 

moved to involve such disparate and wide areas of INS into this 

new agency. Particularly in the subway attacks and the first World 

Trade Center, they were illegal aliens, but the African embassy 

bombings were naturalized United States citizens. 

The New York landmark plots were all permanent residents, and 

the Millennium plot was all illegal aliens. On 9/11, three were illegal and the rest on tourist visas, and one on a business visa. You 

have three who were asylum applicants, the one on the murder of 

the CIA employee, the first attack on the Trade Center, and in the 

plot to bomb New York landmarks. 

So in terms of looking back at where the problems are, they are 

clearly spread across the board, and that may well be why Governor Ridge chose to go for the whole list, including naturalization, 

which I think most of us would admit is a service-oriented portion 

of INS. 

I was wondering if any of you have any comments on that. 

Please go ahead. 

Ms. WALKER. Thank you very much, Senator Feinstein. I can certainly understand what that report would be extremely disturbing, 

and what I would like to at least respond to is two points. 

One, a personal interview does not change whether or not one 

conducts a check of the data base. There are also mail-in proceVerDate Mar 21 2002 11:31 May 22, 2003 Jkt 086931 PO 00000 Frm 00027 Fmt 6633 Sfmt 6633 C:\HEARINGS\86931.TXT SJUD4 PsN: CMORC
24

dures at consular posts. Let’s face it: a lot of our adjudications by 

the Immigration Service are done without a personal interview. 

Senator FEINSTEIN. Except they checked the data base, because 

I asked them in another hearing, and there was no information. 

Ms. WALKER. When the data base does not contain the pertinent 

information, obviously the data base is going to be useless. Depending upon when the check is done, the visa application can be made 

years before I decide to travel to the United States. Many visitor 

visas may have a longevity of 10 years and I may choose to have 

my first travel to the United States 3 years later. 

My second line of defense at that point in time is the Immigration Service, and when I am admitted for entry, as long as I am 

not a visa waiver participant, I have had to go through and get 

that visa in the past. And when I am admitted, I am supposed to 

be going through a check. It is not done a hundred percent of the 

time. 

For that matter, at land ports of entry it is not done a hundred 

percent of the time. I recognize that. We trying to improve the 

check process and the data base access. But I don’t think it is necessarily tied to the lack of a personal interview. I also think that 

it may be tied to the timing of the entry of the individual after visa 

issuance. 

Senator FEINSTEIN. Thank you. 

Yes, Mr. Martin. 

Mr. MARTIN. I would like to just offer a couple of thoughts on 

that. First of all, of course, it is extremely valuable to look at past 

experience of the kind that you recite there to figure out how to 

improve our systems in the future. 

The episode with Sheik Rahman got a lot of attention, and it was 

primarily the State Department and I was not involved in that, but 

they made a number of changes in their procedures to make surer 

that information in the system would definitely be used at a time 

of making decisions on visa issuance like that. 

Senator FEINSTEIN. Right. 

Mr. MARTIN. You mentioned 26, if I have it right, that had no 

prior violations. That indicates an inevitable limitation on this 

screening process. Without prior violations or other kinds of intelligence information, the most diligent consular officer, and usually 

even with an interview, is not going to discover that kind of problem. 

Just to put it in perspective, I think we have to realize that immigration controls are an important part of our defense against terrorism, but they are a more limited part. Much more important are 

going to be the efforts to develop the intelligence and then make 

sure we share it, rather than trying to multiply occasions in which 

we interview people. 

The only way to be really sure no threats come from outside is 

completely to close our borders. That obviously is not in the cards. 

We have to make tradeoffs and make risk assessments all the time, 

so some part of the very large volume of traffic that comes in will 

come in without a detailed interview. I think we will continue with 

that, but we can do better in applying the information we have and 

in developing better information for the future. 

25

Senator FEINSTEIN. One of the real problems is in the visa waiver program, which I think has about 27 countries in it and takes 

in 23 million visitors a year, they have 100,000 passports that have 

been stolen. I have read where at least two of the hijackers may 

well have used a passport that they got from the visa waiver program. So everything is kind of up to be looked at very carefully. 

I appreciate your comments. 

Chairman KENNEDY. Well, I want to thank you all. It has been 

very helpful to hear from you. We have to move along on this issue 

and it is a long process to try and get this right. It is going to be 

challenging, so we are going to be talking to you frequently in the 

upcoming weeks. All of you have a wealth of experience and we 

thank you very much. 

We will adjourn the hearing. 

[Whereupon, at 3:33 p.m., the subcommittee was adjourned.] 

[Submissions for the record follow.] 

[Additional material is being retained in Committee files.]

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