FAMILY UNIFICATION, EMPLOYER SANCTIONS AND

ANTI-DISCRIMINATION.

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t

HEARING

BEFORE THE

SUBCOMMITTEE ON IMMIGRATION, REFUGEES, AND

INTERNATIONAL LAW

OF THE

COMMITTEE ON THE JUDICIARY

HOUSE OF REPRESENTATIVES

ONE HUNDREDTH CONGRESS

SECOND SESSION

ON

FAMILY UNIFICATION, EMPLOYER SANCTIONS AND

ANTI-DISCRIMINATION UNDER IRCA

AUGUST 23, 1988

Serial No. 83

Printed for the use of the Committee on the Judiciary

U.S. GOVERNMENT PRINTING OFFICE

89-730 u WASHINGTON ! 1989

For sale by the Superintendent of Documents, Congressional Sales Office

US Government Printing Office, Washington, DC 20402
COMMITTEE ON THE JUDICIARY

PETER W. RODINO, JR., New Jersey, Chairman

JACK BROOKS. Texas HAMILTON FISH, JR., New York

ROBERT W. KASTENMEIER, Wisconsin CARLOS J. MOORHEAD, California

DON EDWARDS, California HENRY J. HYDE, Illinois

JOHN CONYERS, JR., Michigan DAN LUNGREN, California

ROMANO L. MAZZOLI, Kentucky F. JAMES SENSENBRENNER, JR.,

WILLIAM J. HUGHES, New Jersey Wisconsin

MIKE SYNAR, Oklahoma BILL McCOLLUM, Florida

PATRICIA SCHROEDER, Colorado GEORGE W. GEKAS, Pennsylvania

DAN GLICKMAN, Kansas MICHAEL DEWINE, Ohio

BARNEY FRANK, Massachusetts WILLIAM E. DANNEMEYER, California

GEO. W. CROCKETT, JR., Michigan PATRICK L. SWINDALL, Georgia

CHARLES E. SCHUMER New York HOWARD COBLE, North Carolina

BRUCE A. MORRISON, Connecticut D. FRENCH SLAUGHTER, JR., Virginia

EDWARD F. FEIGHAN, Ohio LAMAR S. SMITH, Texas

LAWRENCE J. SMITH, Florida

HOWARD L. BERMAN, California

RICK BOUCHER Virginia

HARLEY O. STAGGERS, JR., West Virginia

JOHN BRYANT, Texas

BENJAMIN L. CARDIN, Maryland

M. ELAINE MIEI.KE, General Counsel

ARTHUR P. ENURES. JR., Staff Director

ALAN F. COFFEY, JR., Associate Counsel

SUBCOMMITTEE ON IMMIGRATION, REFUGEES, AND INTERNATIONAL LAW

ROMANO L. MAZZOLI, Kentucky, Chairman

BARNEY FRANK, Massachusetts PATRICK L. SWINDALL, Georgia

CHARLES E. SCHUMER, New York HAMILTON FISH, JR., New York

BRUCE A. MORRISON, Connecticut BILL McCOLLUM, Florida

HOWARD L. BERMAN, California D. FRENCH SLAUGHTER JR., Virginia

JOHN BRYANT, Texas

EUGENE PUGUESE. Counsel

EDWARD F. KELLY, Assistant Counsel

PETER REGIS, Legislative Assistant

BERNADETTE MAGUIRE, Legislative Assistant

MARGARET WEBBER, Associate Counsel

(D)

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4*

^\<\%** CONTENTS

WITNESSES

Page

Vanna K. Slaughter, North Texas Immigration Coalition 3

Prepared statement 6

Adan G. Vega, Esq., Hispanic Advisory Council 13

Prepared statement 15

Nancy Shivers, Esq., Director, Board of Governors, American Immigration

Lawyer's Association 39

Prepared statement 44

Charles Foster, Esq., Chairman, Coordinating Committee on Immigration,

American Bar Association 54

Prepared statement 58

Ruben Montemayor, Esq., San Antonio, Texas 67

Prepared statement 70

Fernando Dubove, Esq., Assistant Director, Texas Project of the National

Immigration, Refugee, and Citizenship Forum DO

Prepared statement 94

Joseph A. Vail, Community Task Force on Immigration Affairs 115

Prepared statement 119

Mike Lehr, Federation for American Immigration Reform (FAIR) 126

Prepared statement 128

ADDITIONAL MATERIAL

Submitted statement of Texas State Senator Gonzalo Barrientos 150

(in)

FAMILY UNIFICATION, EMPLOYER SANCTIONS

AND ANTI-DISCRIMINATION UNDER IRCA

TUESDAY, AUGUST 23, 1988

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON IMMIGRATION, REFUGEES, AND

INTERNATIONAL LAW,

COMMITTEE ON THE JUDICIARY,

Washington, DC.

The subcommittee met, pursuant to call, at 1:30 p.m. in the

Fresla Room, Coates University Center, Trinity University, 715

Stadium Drive, San Antonio, Texas, Hon. Romano Mazzoli (chairman) presiding.

Members present: Representatives Mazzoli and Bryant.

Staff present: Ed Kelly.

Mr. MAZZOLI. The subcommittee will come to order. Would the

people in the back please take seats? We are about to get started.

Let me welcome all of you to the hearing. I appreciate very much

your taking time out of your busy days to attend, some of you

coming from other cities in Texas. And I appreciate your putting

yourself out to join us.

I also very much appreciate having a chance to join with my

friend and colleague, John Bryant, in this hearing. John is a young

man who has brought great distinction to himself and to Texas in

his committee assignments, and they range across the board from

Energy and Commerce, which is one of the very major committees,

to the other major committee assignment, which is Judiciary. And

he serves on our subcommittee, and I appreciate John taking the

time out to join us.

I have just a very brief statement, just to the general effect that

the Subcommittee on Immigration, Refugees, and International

Law does meet today here in San Antonio at Trinity College for a

field hearing to continue its oversight on the implementation of the

1986 Immigration Reform and Control Act.

IRCA, as it is given the acronym, is a balanced piece of legislation. It is designed to bring about greater control over our border

entry and exit. At the same time, it is meant to do humanity and

justice and compassion to the people who are in this country, in

some cases illegally.

As we know, in an effort to provide this balance, we have employer sanctions, which is again designed to eliminate the lure that

would induce people to cross the borders and enter the country.

We provide anti-discrimination protection so that the people who

need jobs and want jobs and are qualified for jobs can get them,

(1)
and not be discriminated against. And then we have the question

of the various labor programs, the H2A program, the program for

agricultural labor.

Our field hearing today will primarily concentrate on the three

areas in which we have had some indication that some attention

should be given. One is the anti-discrimination part of employer

sanctions; the other is the employer sanctions section itself; and

then we will also hear about family unification, which stems from

legalization and the questions that might have arisen from that.

So with that, the committee is underway, and I would recognize

my friend John Bryant for any statement he would wish to make.

Mr. BRYANT. Thank you, Mr. Chairman. On behalf of all of us

here, I would like to express our very profound appreciation to you

for traveling all the way from Louisville, Kentucky down to Texas,

and to our most beautiful city, San Antonio, to take up the first

hearing that we have had, I believe, on the operation of the new

immigration law which was enacted by the Congress.

I would like to say that this is an enormously difficult matter. It

was extremely difficult for this subcommittee; it is perhaps the

most difficult legislative task that I have been involved in in nearly

15 years of being a legislator at the State and national level.

The bill was passed after initially being believed to have been defeated, principally because of the fact that this committee assumed,

and we still work on the assumption, that we had addressed the

major concern of critics of this approach, which was the possibility

that there would be discrimination by employers against Americans, particularly Americans of Hispanic descent, on the part of

employers who, in an over-abundance of caution about avoiding

any sanctions, would avoid hiring people who they thought might

not be American citizens.

That was the principal concern in the enactment of this bill from

the very beginning, and it was only after we adopted revisions to it,

including the Frank amendment, to construct what we felt was an

airtight bill that would absolutely prevent discrimination, that this

bill had a realistic chance of passing and received my support, the

support of Congressman Mazzoli, and others.

It is particularly important that we be here for this hearing

today because of the fact that there are reports emerging from the

General Accounting Office that have not yet been confirmed or examined, and are certainly incomplete, that suggest the possibility

that there is a measurable or significant amount of discrimination

taking place in the workplace against Americans who may be of

Hispanic origin.

If that is the case, the underpinnings of this law are in doubt,

and we need to look at it and find a way to fix that problem immediately, and we are anxious to hear today the information and

opinions and facts brought forth by the witnesses with regard to

the possibility of employment discrimination.

Second, an enormous concern to all of us has been the issue of

family unification. Legislation was introduced earlier this year to

deal with the family unification problem. Our subcommittee•I

think I am stating it correctly, and correct me, Mr. Chairman, if I

am in error•has hesitated to deal with it because we were assured
by the Immigration and Naturalization Service that by administrative ruling, they are adequately dealing with the problem.

There is a significant body of opinion that differs with that, and I

think we need to hear that and know exactly where we stand with

regard to family unification, and whether or not the assurances

given us are reliable.

And third, I think it is very much in order for us to examine the

whole issue of employer sanctions and how well they are working

or not working. Preliminary indications, based upon data regarding

apprehensions at the border of people trying to cross illegally, indicate the possibility that employer sanctions are working.

On the other hand, that information, that data, is not yet complete. It would be of benefit to the committee for us to have the

facts and opinions of the witnesses in that regard.

In summary, I want to again profoundly thank the Chairman,

not only for myself but for all of us in Texas, and I hope I can presume to speak for those in the audience today, for bringing this

subcommittee and the record of this subcommittee to San Antonio

to hear from those that work on a daily basis with the implementation of this law. I thank you very much, Mr. Chairman.

Mr. MAZZOLI. John, thank you very much. You have made a very

fine statement, and that is what we are trying to get, is to the

truth, and exactly how the law is being implemented.

Let me call forth our first panel and ask them to step forward

and to join us. Ms. Vanna Slaughter, the Project Director of the

Catholic Charities Immigration Service; Mr. Adan Vega of the Hispanic Advisory Council; and Mr. Jose DeLara, president of LULAC.

I guess Mr. DeLara is not here, so we will proceed with the two

witnesses we have. And you will understand that because we have

a number of witnesses in a fairly short working day, that I would

like, if we could, to limit the statements, the direct statements, to

something around five minutes, if we could do it.

And then there will be several questions, and that usually is the

part of the hearing that elicits the information for us that is most

useful. So let me at this point, then, recognize Ms. Vanna Slaughter.

TESTIMONY OF VANNA K. SLAUGHTER, NORTH TEXAS

IMMIGRATION COALITION

Ms. SLAUGHTER. Thank you, Congressman. My name is Vanna K.

Slaughter, and I am wearing sort of two hats here today, representing the North Texas Immigration Coalition of the Dallas/Fort

Worth Metroplex area, as well as Catholic Charities, Immigration

Counseling Services, which is a BIA-accredited immigration service

agency which I direct.

My comments will be based on my experience directing the Immigration Counseling Services over the last three years, and being

very intimately involved with the legalization program since its enactment.

On behalf of the Coalition, I would like to commend the subcommittee for its continued interest in hearing testimony on the issue

of family unity, which my comments will be directed at today.
We feel that the issue of family unity remains an unresolved

problem product of IRCA's design. Although we have all, I am sure,

in this room, participated in discussions and debates on this issue

in months past, I feel like it is only recentlythat we in the trenches have started to see the true effect of the IRCA split families, as I

would like to call them, in our communities of recent date.

The INS Family Fairness Guidelines issued in November of 1987,

we feel, fall short in their contemplation of a viable remedy to the

painful yet common scenario of family units which are tragically

separated by IRCA's provisions.

My own experience at Catholic Charities, in reviewing some five

thousand cases since January of 1987, has revealed that approximately one-third of our case load that we processed for legalization

involved non-qualifying family members.

And, of course, many of these families involve family members,

spouses or children, that have arrived since the 1982 cutoff date;

but, likewise, several others, hundreds of others, involve U.S. citizen children, which I think should have a special concern to us

that perhaps we haven't given the depth of attention that they deserve in our discussions past. These children will remain our nation's own; they will ultimately come back here, as we have seen in

other deportation scenarios as well.

However, what we are finding in our community is that these

children are going to be forced to live in the same underclass lifestyle as their parents when they lack the legal status to remain

here and move and work freely in our communities.

Already, at Catholic Charities, I have received numerous phone

calls from mothers inquiring as to my advice whether they appear

at the public school systems to enroll their children in school for

the fall semester, especially in areas such as Congressman Bryant's

own district, where the INS has decided it is their favorite area for

apprehending aliens. These mothers are calling, asking whether it

is safe for them to go out on the streets.

And especially at a time when our educators are urging parent

participation in students' education as the key factor in improving

student involvement in schools, I think it is critical that we look at

this as to what effect it is having on parental participation in their

students' educations. None of us here today, I don't think, should

forget that these kids had nothing to do with their parents' decisions to illegally come to the United States.

In my written testimony, I have provided several case examples,

and they are true case examples, only with the names changed.

And for the economy of time, I won't go into each of them.

But I would ask you all to please read them; they do represent

real case examples, and contrary to Mr. Duke Austin, INS spokesman's statement earlier, I believe in December of last year that the

family unity issue really was a red herring, I offer you three case

examples right there to show you that these are just a few of several hundred that our agency has that are true mixed-family situations.

The INS Family Fairness Guidelines published in November of

1987 have caused tremendous confusion in the community as their

interpretation through the media and word of mouth communication channels has left the mistaken impression with some individ-
uals that the policy is far more generous than even the INS says it

is.

It concerns us that individuals are approaching INS district offices on their own, thinking that they can obtain "permisos," or

work authorizations, for their non-qualifying spouses and children,

unaware of the narrowly defined group of individuals eligible for

the "blanket" provision the guidelines set forth.

At Catholic Charities, we have had a few of these examples already come. The Maria Lopez family is one of them, constituting a

mother who qualified, a child who qualified, two U.S. citizen children, and a father who did not qualify.

The father came to Dallas the other day and, on his own, approached the INS district office, asking for Family Fairness family

unity work permission, and he was immediately placed in deportation proceedings. He was very quickly given a hearing before an

immigration judge, much faster than any case I have ever seen,

and, of course, the immigration judge had no remedy to offer him.

His fate is now in the hands of the INS district director.

I have discussed this case with our INS district director, and he

claimed to not be aware of it, and feels like it was some front-line

individuals working in his district office who placed this person in

deportation proceedings.

It is of concern to us that the door is wide open to the inconsistent application of the guidelines, given the discretionary nature

with which the non-blanket cases, such as the Maria Lopez case,

are to be considered by INS district directors•and their staffs, I

should add.

The family unity issue becomes even more critical now than

before with the INS's voracious post-IRCA enforcement efforts.

With the routine workplace raids, neighborhood, and apartment

operations we hear about daily in our community, it is highly

likely that non-qualifying family members of temporary residents

will continue to be apprehended, thus placing the INS in the very

difficult and untenable position of having to physically remove

non-eligible individuals from their qualifying family members. I am

confident that not even the INS relishes this probable scenario.

In closing, I would like to strongly urge that the subcommittee

revisit the issue of family unity, and address the tragic fallout of

family separation caused by IRCA. We urge you to reflect on the

social consequences being caused these IRCA-split families, a few of

which I have highlighted in my written testimony.

We ask for your intervention in the formation of a humane national policy, immune to regional and local interpretation and application, that will enable the immediate relatives of legalized

aliens to remain with their families and to move freely among us.

Thank you.

[The prepared statement of Ms. Slaughter follows:]
TESTIHONY OF

VANNA K. SLAUGHTER

ON BEHALF OF

THE NORTH TEXAS IMMIGRATION COALITION

IN RE: PUBLIC HEARING ON THE IMPLEMENTATION OF THE

IMMIGRATION REFORM ACT OF 1986

SUBCOMMITTEE ON IMMIGRATION, REFUGEES AND INTERNATIONAL LAW

SAN ANTONIO, TEXAS

AUGUST 23, 1988
My name is Vanna K. Slaughter. I am here today from

Dallas, Texas representing the North Texas Immigration

Coalition, a voluntary group functioning in the Dallas/Fort

Worth Metroplex area, whose membership includes numerous social

agencies and private citizens who came together in late 1986 out

of a common concern about the implementation of the Immigration

Reform and Control Act of 1986 (IRCA). Our coalition i3 a

member of the National Immigration, Refugee and Citizenship

Forum. As an additional point of identification, however, I

would like to mention that I am also Program Director of

Catholic Charities, Immigration Counseling Services, an

accredited non-profit immigration service agency that has been

actively Involved in assisting legalization applicants.

On behalf of the Coalition, I would like to thank the

Subcommittee for holding this hearing and for taking the time to

be present here in San Antonio for it. My comments to you today

will briefly concern one of the IRCA related areas that we feel

cries out the loudest for attention at this stage...that of

family unity. We commend the Subcommittee for its continued

interest in this issue of compelling human reality.

Despite the fact that the legalization application period

is now behind us (except for the remaining scheduled

interviews), and despite the fact that it will soon be two years

since IRCA was signed into law by President Reagan, the issue of

family unity remains an unresolved problem-product of IRCA'S
design. Although we have all, I as sure, heard or participated

in the many discussions on this issue in months past, it is only

very recently that those of us in the "trenches" have begun to

witness in our communities the real effects caused in split

family situations. I will be describing some of these effects

in a moment. The INS1Family Fairness Guidelines issued in

November 1987 fall short in their contemplation of a viable

remedy to the painful, yet common scenario, of family units

which are tragically separated by IRCA's very provisions.

My own experience in reviewing some five thousand

legalization cases prepared by Catholic Charities since January

of 1987, has revealed that approximately one-third of them have

involved non-qualifying immediate family members. A large

number of these families, in addition to involving spouses and

children who arrived after 1982, and thus do not qualify,

likewise have U.S. citizen children born to them here since

1982. I think often in our past discussions of family unity

these U.S. citizen children have not received the depth of

attention they deserve. After all, these children will always

be our nation's own, and our responsibility toward them should

reflect a priority, irregardless of the legal status of their

parents, for seeing that they are fully integrated citizens in

our community.

As we all know, however, these children will but become

victims to the same underclass lifestyle their parents are

forced to live when they lack the legal status that is

essential for moving, living and working freely In our
communities. Already I have received telephone calls from women

whose husbands qualified, but they did not, asking my advice

whether it is safe for them to appear in person to register

their children for the fall school term. At a time when our

educators have identified parental participation in students'

education as an essential element to curb the soaring Hispanic

school dropout rate, what can we expect of the children of IRCA

split families (many of them U.S. citizens, remember) when

their parents fear stepping out of their homes to go and talk to

their childrens' teachers? The children in the thousands of

cases of which most of us are aware, whether both or only one of

their parents were able to legalize, are but Innocent players in

a drama that now singles them out as victims. None of us here

today should forget that the kids had nothing to do with their

parents' decisions to illegally come to the United States.

If I may, I would at this time like to 3hare with you 3ome

real examples of family separation through some case

profiles of actual legalization applicants I have personally

assisted. I have, of course, used fictitious names with each

example, however, the facts in each are the actual fact3 in

the case:

The Edmundo Castillo family: Edmundo, is a 37 year old

male from La Union, El Salvador, who has resided in the

United States continuously since 1981, having left El

Salvador when the conflict in the eastern part of his

country was seriously intensifying. In October 1985 he

was Joined by his wife, Elvira, and their four

Salvadoran born children, now age3 It, 13, 10, and 6.

Since 1985 Edmundo and Elvira have had two U.S.

citizen children born to them in Dallas, now ages 3 and

2. Edmundo is a legalization applicant, working as a

bricklayer, earning eight dollars an hour. According
10

to the INS Family Fairness Guidelines this family would

not fall under the "blanket" Family Fairness provision

because both parents do not qualify for legalization.

Elvira is Just one of those women I mentioned a moment

ago who fears leaving her home. She daily comes to

live a more cloistered existence as her fear heightens

that the Border Patrol will apprehend her if she

steps on to the East Dallas street where she lives.

The Jose Hendoza family: Jose Hendoza is a 51 year old

Mexican citizen who has been approved as a Temporary

Resident under the Special Agriculture Worker

provisions of IRCA. He, his wife, Lucia, and their

three Mexican born children, ages 11, 9, and 8 have all

continuously resided in the U.S. since their arrival

in July 1983. The children have all been attending

Dallas public schools and are in the fifth, third, and

second grades respectively. Since Lucia and her

children did not work in agriculture they, of course,

did not legalize under Section 210 as did Jose.

Neither Lucia nor her children qualify for the blanket

provisions of the Family Fairness Guidelines. Lucia

also fears circulating freely outside her home because

the Mendoza's also live in an area where the Border

Patrol frequently conducts its neighborhood raids.

The Raul Garcia family: Raul Garcia has lived in the

United States since March 1981. He applied for

legalization In 1987 and has already received his Legal

Temporary Residency. Raul makes his living as a

specialty cook at two different French restaurants in

Dallas. His wife, Maria has resided in the United

States continuously since her arrival in 1981. Since

her arrival Raul and Maria have had three U.S. citizen

children born to them, now ages 1, 2 and 9 months.

Maria, also, does not qualify for the blanket

provisions of the INS Family Fairness Guidelines,

despite the fact that her husband is now legal and she

has three United States citizen children.

The Family Fairness Guidelines have caused tremendous

confusion in the community as their interpretation through the

media and word of mouth communication channels has left the

mistaken impression with some individuals that the policy is far

more generous than it even the INS says it is. It concerns us

that individuals are approaching INS District Offices on their

own, thinking they can obtain "permisos" as non-qualifying
11

spouses and children, unaware of the narrowly defined group of

individuals eligible for the "blanket" benefit the guidelines set

forth. At Catholic Charities we already have encountered such

examples, one being the following:

The Maria Lopez family: Maria Lopez is now a Legal

Temporary Resident, along with her minor son, both of

whom have resided continuously in the United States

since before 1982. Maria also has a 6 year old U.S.

citizen child born to her by a previous union. Maria

is now married to Jose Lopez with whom she ha3 an 8

month old U.S. citizen child. Jose entered the United

States in 1984 and thus did not qualify for

legalization. Upon hearing rumor that non qualifying

spouses of legalized aliens could apply for "permisos",

Jose approached an INS District Office asking for a

family unity work authorization. On that very day the

INS District Office denied him work authorization,

issued Jose an Order to Show Cause and placed him in

deportation proceedings. Jose has already appeared

before an immigration judge at a deportation hearing at

which there was no real relief he could request.

Jose's fate now rests with the INS District Director as

a non-blanket case under the Family Fairness

Guidelines.

It is of concern to us that the door is wide open to an

inconsistent application of the guidelines, given the

discretionary nature with which the non-blanket cases, such as

that of Jose Lopez are to be considered. Already in Texas we

are aware of discrepancies in the different INS Districts

with the manner in which the few cases thus far presented have

been handled.

The family unity issue becomes even more critical now than

before with the INS' voracious post-IRCA enforcement efforts.

With the routine work place, neighborhood, and apartment

"operations" we hear about in our community (many of them

occuring in the heart of Congressman Bryant's district, which

happens to also be my neighborhood), it is highly likely that
12

non-qualifying family members of Temporary Residents will

continue to be apprehended; thus placing the INS In the very

difficult and untenable position of having to physically remove

non-eligible individuals from their qualifying family members.

I am confident that not even the INS relishes this potential and

probable unpleasant scenario.

In the interest of fundamental fairness and in the spirit

of the current administration's policy priority of preserving

the well-being of the family, articulated not only in the

President's Executive Order of September 2, 1987, but also in

his State of the Union address this year, we strongly urge the

Subcommittee to revisit the issue of family unity and address

the tragic fallout of family separation caused by IRCA. We

encourage you to reflect on the social consequences being caused

these IRCA-split families, a few of which I have highlighted for

you today. We ask your intervention In the formation of a

humane national policy, immune to regional interpretation and

application, that will enable Immediate relatives of legalized

aliens to remain with their families and to move freely among

us.
13

Mr. MAZZOLI. MS. Slaughter, thank you very much. Mr. Vega?

TESTIMONY OF ADAN G. VEGA, ESQ., CONSEJO HISPANO ASESOR

(HISPANIC ADVISORY COUNCIL)

Mr. VEGA. Good afternoon. I am here to testify this afternoon in

behalf of the Consejo Hispano Asesor, which is based in Houston.

And I want to thank you for the opportunity for being able to

present testimony this afternoon.

Mr. MAZZOLI. Thank you very much for coming.

Mr. VEGA. The main concern that we have in this organization is

a situation concerning family unity, and we feel that the issue of

family unity has never been resolved in the context of the existing

statutory and regulatory law. As it exists right now, there is no

viable solution that will resolve that particular problem.

And what I have provided here this afternoon for the committee

is a case example of how the situation can actually occur where a

child can be deported and be separated from a family where the

parent has received temporary resident status. And I have submitted that this afternoon as part of the exhibits to the material that

we have provided.

Mr. MAZZOLI. All right. Without objection, it will be made part of

the record.

Mr. VEGA. NOW, the Immigration and Naturalization Service has

recognized the problem and attempted to provide a solution by

granting administrative Voluntary Departure Status to minor children of parents who qualify for legalization. And that policy was

set forth in the INS central office memorandum which was dated

November 13, 1987. In that situation, parents could actually take

the children forward to the Immigration Service and actually attempt to seek voluntary departure status for these children.

Now, this position taken by the Immigration and Naturalization

Service, as I said, has not been the proper solution to the problem.

In the manner that this program is being administered, some

minor children will be granted voluntary departure status by the

Service.

On the other hand, there will be other minor children of parents

who qualified for legalization who will actually be placed in deportation proceedings. And this is done on a purely discretionary

basis, and will be done on a case-by-case basis, if the case involves

only one parent who has received temporary resident status.

As a result, some of these children will be issued an order to

show cause to appear before the immigration judge. If placed in deportation proceedings, these children may be granted voluntary departure status by the immigration judge, or may, in the alternative, be deported and separated from their family.

If granted voluntary departure within the deportation proceeding

context, the voluntary departure status of the minor child may be

extended only as a discretionary measure by the Service, and not

as a guaranteed right.

As a result, the minor child is at the discretionary mercy of the

Service at this juncture. Should the voluntary departure status not

be extended, either by the discretion of the Service or by neglect on
14

the part of the minor, then a deportation order will become outstanding, and then the minor would be subject to deportation.

So under these circumstances, there is a strong potential to segregate minor family members from a temporary resident parent.

And the case cited here within the testimony clearly shows that

the policy being followed by the Service is not a flexible one. If the

Service continues to exercise discretionary power to decide which

families remain united, then we will continue to see families separated by the negative exercise of the discretion.

One other point that I would like to make is that the voluntary

departure status that is being granted at the actual Immigration

Service is different from the voluntary departure status being

granted in the deportation context.

Once the child is issued an order to show cause and appears

before an immigration judge and is granted voluntary departure,

that voluntary departure status can actually convert itself into a

deportation order if the voluntary departure date is allowed to

expire, or the Immigration decides, in their discretion, never to

extend the voluntary departure status.

So in conclusion, what I would like to say is that the solution

does not lie right now in the statutory regulatory law as it exists at

this very moment. There is a need for a change in the law, and

there is a need for new legislation.

[The prepared statement of Mr. Vega follows:]
15

ADAN G. VEGA, PC.

HOUSTUN. TOXAS 77006

ADAM 0. VBGA

(Biographic Sketch)

1. Chairman of the Conaejo Hispano Asesor Sobre La Mueva Ley de

Inalgraclon (Hispanic Advisory Council on the Immigration

Reform and Control Act of 19 86),

2. Board Certified In immigration and Nationality Law•by the

Texas Board of Legal Specialization, Texas State Board of

Legal Specialization, Texas State Bar•(December 19(5),

3. Licensed to practice law In the state of Texas by the Texas

State Bar--(November 1979),

4. Graduate of the University of Texas School of Law•

J.D. Degree•(Hay 1979),

5. Graduate of Rice University•B.A. Degree•(Hay 1976),

6. Place of Birth: Santa Harla, Texas,

7. Date of Birth: July 20. 1953.
16

LMM OFTCCS or

ADAN G. VEGA, PC.

I #U.TT MO

••» OHOOniaMMaMlHn HOUSTON. TEXAS TT006

Congressman Mazzoll

2137 D

Rayburn House Office Building

Washington, D.C. 20515

Dear Sir:

August 16, 1988

As a practitioner In the field of Immigration and

Nationality Law and as Chairman of the Consejo Hlspano Asesor

Sobre La Noeva Ley de Inmlgraclon, I respectfully request to

testify before the Congressional Committee chaired by you. X

wish to sake the following comments on the Implementation by the

Immigration and Naturalization Service of the Immigration and

Reform Act of 19 86.

The family unity Issue in the context of Legalization cases

has been addressed but has oat been resolved by existing

statutory and regulatory law (See Exhibit 1). The Immigration

and Naturalisation Service has recognized the problem and

attempted to provide a solution by granting voluntary departure

status to minor children of parents who qualified for

legalization. This policy is set forth in an INS central office

memorandum dated November 13, 1987 (See Exhibit 2).

This position taken by the Immigration and Naturalization

Service has oat been the proper solution. In the manner that

this program is being administered, some minor children will be

granted Voluntary Departure Status by the Immigration and

Naturalization Service. On the other hand, other minor alien

children of parents who qualified for legalization will be placed

In deportation proceedings [6CC the attached cage inhibit 1) by

the Immigration and Naturalization Service. This is done on a

purely discretionary basis and is done on a case by case basis if

the case Involves only one parent who has been approved. Aa a

result, some of these alien minor children will be Issued an

Order to Show Cause to appear before an Immigration Judge.

If placed in deportation proceedings, these children may be

granted "Voluntary Departure" status by the Immigration Judge or

may, in the alternative, be deported and separated from their

family.
17

Page 2

Congressman Hazzoll letter

If granted Voluntary Departure within the deportation

proceeding context, the "Voluntary Departure" status of the minor

child Bay be extended only as a discretionary measure by the

Immigration and Naturalization Service and Uttt as a guaranteed

right. Thus, the minor child Is at the discretionary mercy of

the Immigration and Naturalization Service at this juncture,

should the voluntary departure status not be extended, either by

discretion on the part of the Immigration and Naturalization

Service or by neglect on the part of the minor, then a

deportation order becomes outstanding immediately upon expiration

of the Voluntary Departure status. The minor is then subject to

deportation.

Under these circumstances, there is a strong potential to

segregate minor family members from a Temporary Resident parent.

The case cited above clearly shows that the policy followed by

Immigration and Naturalization Service is not a flexible one. If

Immigration and Naturalization Service Is allowed to continue to

exercise discretionary power to decide which families remain

united, then we will continue to see families separated by a

negative exercise of their discretion.

In regards to the Antl-dlscrimlnation provisions of IRCA, I

wish to make the following comments:

First, the Form 1-772 Declaration of Intending Citizen, was

created to provide for the preservation of the right to pursue a

discrimination claim under Section 102 of the Immigration Reform

and Control Act of 1986 (IRCA), 127 4 B of the Immigration and

Nationality Act (See Exhibit A)•

This form was to be distributed to Immigration and

Naturalization Service offices and made available to persons

meeting the definition of intending citizen at Section 274

B(a)(3)(B)(1) of the Act. To date, this form has yet to be

distributed to Temporary Residents or Permanent Residents. It is

only within the month of August, 1988, that the Immigration and

Naturalization Service has made the Porm available to individuals

receiving Permanent Resident Status.

The Porm 1-772 has not been made readily available to the

affected segment of the general public.
18

Page 3

Congressman Hazzoll letter

Further, the segment of the population affected by the

change In lav as It relates to the ant1-dlscrlralnatIon clause of

the immigration Reform Control Act does not even know about the

filing requirements to preserve their right to pursue a

discrimination clause.

Thus, this phase of the change of the Immigration law has

been neglected by the Immigration and Naturalization Service, and

has not been given the sufficient publicity to properly educate

the alien agpHERIBMk^*W('<M ,

Sincerely,

Adan G. Vega

AGV:tn

End.

20

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EXHIBIT z
21

UNITED STATES DEPARTMENT OF JUSTICE

Immigralioa ind N« isratfutioa Service

ORDER TO SHOW CAUSE and NOTICE OF HEARING

In Deportation Proceedings under Section 242 of the Immigration and Nationality Act

UNITED STATES OF AMERICA: File No A28 582 521

i .w-n . t * AMARO-Floret, Jaime In the Matter of Respondent.

216 2ND STREET, ROSEHBURC, TEXAS 77471

A44*ru (MMbo. Uf«t. cuy. U«K. and ZIP code)

UPON inquiry conducted by the Immigration and Naturalization Service, it is alleged that:

1. You are not a citizen or national of the United States;

2. You are a native or MEXICO

and a citizen of MEXICO

You entered the United States at LAREDO. TEXAS on

or .bout JULY 10, 1982 ;

(dale)

AC that time you were admitted as a nonimmigrant visitor for pleasure

and were thereafter Authorized to remain in the United States for

seventy-two (72) hours;

You have remained in the United States beyond seventy-two (72) hours

without authorization of the United States Immigration and

Naturalization Service.

AND on the basis of the foregoing allegations, it it charged thai you are subject to

deportation pursuant to the following provision*,*) of law:

SECTION 241(a)(2) of the Immigration and Nationality Act, in that after

admission as a nonimmigrant under Section 101(a)(15) of said Act, you

have remained in the United States for a longer time than permitted.

WHEREFORE. YOU ARE ORDERED to appear tor hearing before an Immigration Judge of

the Immigration and Naturalization Service of the United Stales Department of Justice at

DATE, TIME AND PLACE TO BE SET ____

on at m, and show cause why you should not

be deported from the United States on the charge(s) set forth above.

May 9, 1988

^CAREY D. MURPHY, ASST. DISTRICT DIRECTOR

FOR INVESTIGATIONS- HtMlSTOM. TRIAS

(Cut Md Suit)

FORM 1-618 ACCREDITED

REPRESENTATIVES LIST ATTACHED

rvmniT •% ..
22

UNITKb STATfcS tttPAWMENT OK JUSTICE

EXECUTIVE OKFICE KOR IMMICRATKN REVJGW

Immigration Court

Houston, Texas

Kile NO.: A Z <f- ^fri. - £%~ I

In the Matter of: IN DEPORTATION PROCEEDINGS

Respondent

DECISION AND ORDER OF THE IMMIGRATION CUUPT

Upon the juuJt motion of couneol toe the Imn iteration and tfe*m'pih«afeian

Vnniirn.iwd counsel for the respondent, it is hereby ORDERED that these

proceedings be ADMINISTRATIVLLY CDOSED and are co-.sidered no longer

pending before this court. No further action will be taken in this

matter unless and until such time as the case is presented for

recalendaring and further P

r

rceedinas£ftjrAis action is taken in

contemplation of the respondent'sJleiilgiDility for legalization

~"rsuant to the provisions of the Immigration Peform and Control Act of

•• Qw <tt mr

Respondent

Respondent's Attorney

INS Attorney

zW%4 L

SUSAN '.. YARBROOGH

Immigration Judge

>0?\& l^^rv^o Ki<Al fa QwSaJ?.

EXHIBIT 3 0>)
N»

^

FKMIRIT *fc,
JU.^1 -.=-

WnCZ OF ArTEAL TO TEE IOUD OF

SUBMrT IN TWPUCATI TO:

TKKAmALS

aaastA'OM AMO HATVUAUZAT-IOH SERVICE

•J.-.VUTEn MO

6M//&-

J^f*<_.

ramWm. A2« 5e2 S21

•'• taa

2. Btuflj. MM •ito. Mi HI I a. This appeal la Bade on the interlocutory

order of the lanlgratloa lodge since it addresses an iatportant

jorlsdlctlonal question regarding the administration of 1 ill in Inn

lava or to correct recurring problems In the handling of the case

by an ionlgratlon Judge. See Hatter of Anlco, Interln Decision

(BIA 1988); Matter of Bosales-Hansuado, Utexia Decision |SU 1988).

b. 7hc i-migration judge erred in adolnistratlvely dosing the case

based on the fact that the respondent's parents had received vorx

authorization u ndor their 'legalisation (amnesty)" applications for

what she should have done would have been to proceed with the hearing

on the case . The respondent is not entitled to legalisation.

c. The Immigration judge erred by creating a non-statutory relief

not envisioned in deportation proceedings as a aoans of terminating

1 I. JUOther reasons are found in attached sheet.

_^^___^_^_ desue oral •inowr baforo tits Board of iaoncracioa Apoaala to

D. C

. fc • i t wntteo bnai of i

Appeal poroisalon processed.

I hereby certify that a copy of this

appeal haa been sent to Adan Vega, Esq.

2918 Bagby Street, Ste. ZOO, Houston, .

TX. 77006

June 20, 1988

'/. jf. I

5g:j,Y'I>; D. SO'.MVA

TRIAL ATTtfStiLY'

509 Ho:mi BELT

'" U}l}S'!\Zf?r"i£~7 7tfB 4*'

IMPORTANT: SEE INSTRUCTIONS ON REVERSE SIDE OF THIS NOTICE

<JU».10-J1-79)H

EXHIBIT 3(<0
25

d. Since the Immigration and Naturalization Service sought to

prosecute these proceedings to a conclusion, the immigration

judge was obligated to order the deportation of the respondent

if the evidence supports a finding of deportability on the

ground charge. The regulations emphatically require the prompt

completion of the deportation proceedings if no action to terminate

is taken by the District Director. See Matter of Roussis, 18

Ifcn Dec. 256 at 258 (BIA 1982). ?-/.

e. The immigration judges erred* in brushing aside the rulings in

Matter of Amico, supra and Matter of Rosales, supra as being

only applicable in in absentia hearings.

f. The immigration judge erred in not entering an order which could

be excuted upon the next contact with the respondent. Failing

to issue this order would allow the respondent, simply by failing

to appear, to avoid an order regarding his deportability, and

the consequences an order of deportation could bring. Matter of

Amico, supra.

g. The immigration judge erred in not taking into account that

the administrative closing of a case does not result in a final

order, but that it is an administrative convenience which allows

the removal of cases from the calendar in appropriate situations.

This is not such a case.

EXHIBIT 3UJ
26

MM wcea O*

ADAN G. VEGA, P.C.

«-W«-T».O~ mm tram mtnmt '\ "•"«"••

wriOH AND NAUOMiirr uw •

li « IKKNO O* l «OAL »«C»*».«AHOW IH>UsnX>N. TEXAS 77»XH5 8 8-134

July 5, 1988

Mr. Ronald G. Parra

District Director

United States Department of Justice

Immigration and Naturalization Service

509 North Belt

Houston, Texas 77060

Re: File No.: A26-582-521

Amaro-Flores, Jaime

Dear Ron:

I am writing this letter as a courtesy to you and to advise

you of the potential ramifications of the above referenced case.

Jaime Amaro-Flores was born in Mexico on January 7, 1973,

and has resided in the United States since July, 1982. He is the

son of Agapito Amaro-Montes, a Temporary Resident Allen, and

Maria Flores de Amaro, a Seasonal Agricultural Worker whose

legalized status is pending.

On February. 1988. Jaime and his mother attended the

Legalization Center office at 2974 Fulton to obtain an extension

of his mother's employment authorization. At that time, the

mother Maria Flores de Amaro, Inquired as to the eligibility for

legalization of Jaime.

Mrs. Amaro was handed a map describing the route to the

Houston District office at 509 North Belt and, In addition, was

handed a note requesting that the child be taken to the 3rd floor

Investigations Section of Immigration and Naturalization Service

(see attached). Mrs. Amaro and her son complied with the request

and appeared at the third level of the Immigration and

Naturalization Service building at 509 North Belt on May 9. 1988.

The son was taken into custody and was Issued an ORDER TO SHOW

CAUSE.

On June 8, 1988, I Inquired of Mr. Michael McMahon as to the

procedure Involved in requesting voluntary departure for a minor

child of a parent who had attained legal status. Mr. McMahon

stated that Orders to show Cause In these situations would afli. be

issued.

EXHIBIT 3(e)
Page 2

Mr. Parra letter

On the sane day, June 8, 1988, I Informed Mr. Benjamin

Somera, Immigration and Naturalization Service Trial Attorney, of

the procedure involved in processing these minor children of

legalized adults. Furthermore, I advised Mr. somera of the

Immigration and Naturalization cable of November 17, 1987

outlining these procedures (see attached). Mr. Somera refused to

file a Motion to Terminate in that the child did not have any

legal grounds to remain in the United states.

On June 9, 1986, a deportation hearing was held and we

alleged 1) a violation of the procedures outlined in the

Immigration and Naturalization Service cable dated November 17,

1987, and 2) a violation of the confidentiality clause of IRCA.

We requested to file a Motion to Suppress evidence and to

terminate the deportation proceedings.

Judge Yarbrough was sensitive to the issues at hand and

terminated the proceedings (see attached). However, the

Immigration and Naturalization Service has reserved the right to

appeal.

In fact, the Immigration and Naturalization Service has

filed an Appeal as indicated by the copy of the Notice of Appeal

to the Board of Immigration Appeals (Form I-290A) submitted to

the Board of Immigration Appeals by Mr. Benjamin D. Somera. This

action by Mr. Somera Indicates that the Immigration and

Naturalization Service is adamant In pursuing the deportation of

Jaime Amparo-Flores, the minor child of a Temporary Resident.

Mr. Somera Indicates In his Appeal that the regulations

require that deportation proceedings be completed if no action to

terminate Is taken by the District Director. This Is a peculiar

stance that the Immigration and Naturalization Service has chosen

to take in regards to minor children of Temporary Residents.

This local position opposes the position of the Central Office

outlined in the cable of November, 1987. (See attached).

If the Immigration and Naturalization Service proceeds to

further prosecute this case. It will set a dangerous precedent

for the establishment of a policy affecting these minor children.

It Is a pro deportation stance and It moves us further away from

resolving the Issue of "family unity". Subjecting these minor

children of legalized parents to deportation proceedings is a

harsh resolution of the matter.

EXHIBIT 3(e)
Page 3

Ron Parra letter

We therefore, ask that you please reconsider this position

and we further request that you exercise your discretionary

powers to terminate the deportation proceedings concerning the

minor child, Jaime Amparo-Flores.

Please take this Information Into consideration and advl3e

me at your convenience of your thoughts on thls^matte

We thank you for your kind attention

AGV:tm

End.

EXHIRIT lie)
29

U.S. DEPARTN^NT OF JUSTICE

Immigration and Naturalization Service

$09 North Belt

Houston,- Tzuu 7T060

August 2, 1988

Adan G. Vega, Esquire

2918 Bagby, Suite 200

Houston, Texas 77006

Re: File No. A28 582 521

Amaro-Flores, Jaime

Dear Mr. Vega:

Your letter of July 5, 1988 expressing concern about ineligible

family members of persons who have qualified under the Immigration Reform and Control Act (IRCA) is much appreciated. By it

we have the opportunity to respond and clearly show the stand of

the Immigration and Naturalization Service in this regard.

At the outset, it is best to set forth the pertinent part of the

Memorandum of the Regional Commissioner dated June 28, 1988,

since it affirms and stresses the policies and practices of the

Immigration and Naturalization Service in regard to the subject

matter you have brought up. As a background, it should be noted

that on October 21, 1987, Commissioner Nelson approved the

family fairness policy. Implementing guidelines were provided

on November 13, 1987. The highlights on the information found

on page 5 of the six page family fairness analysis dated October

21, 1987 are as follows:

"Unmarried children under the age of 18 who were in the

United States in an unlawful status prior to November

6, 1986 and whose parents (or sole parent in the case

of divorce or death of spouse) have qualified for lawful

temporary residence status under IRCA, will be granted

voluntary departure on a "blanket basis"."

Continued

FXHiniT3(f)

«Q_7*m _ RQ
30

Adan G. Vega, Esquire

2918 Bagby, Suite 200

Houston, Texas 77006

August 2, 1988

Ineligible spouses and those children not covered by

the blanket grant of voluntary departure will be

considered on a case-by-case basis and may be granted

voluntary departure if compelling or humane factors

are present".

It appears that the facts in the case you presented fall within

the ambit of the second quoted paragraph. Thus your case must

be considered on the "case-by-case" premise and appraised for

the existence of any compelling or humane factor.

I understand that the Trial Attorney fully explained that under

the facts of your case which show respondent's ineligibility

and the existence of one qualified parent, the relief available

may be voluntary departure. The Trial Attorney repeated this

during the hearing of the case and added his non-objection to a

period of voluntary departure longer than usual. He also

explained to you and the Court that the grant of extensions to

such period of voluntary departure is within the discretion of

the District Director. He also made you aware that the District

Director would not be inclined to enforce an order of deportation

under the facts. Yet, you insisted on asking for the termination

of the case. The Immigration Court so terminated the case despite the Trial Attorney's explanations. You base your action on

your inquiry to the Deputy District Director on June 8, 1988 at

which time the Deputy District Director stated that "Orders to

Show Cause in these situations would not be issued". Clearly,

the statement is correct for the situation wherein no Order to

Show Cause has at yet been issued. But where an Order to Show

Cause has already been issued and the proceedings are before

the Immigration Court, such should be prosecuted to a conclusion.

This is more true where the respondent is clearly and admittedly

ineligible under the Immigration Reform and and Control Act.

Your client should have proceeded to the relief stage and sought

voluntary departure. Jurisdiction would then transfer to the

District Director who could then act in accordance with the guidelines and policies of the Service.

You mention about violations of procedures of the Service and

violation of the confidentiality clause of IRCA. These are but

two examples of a confusion created by intermingling jurisdictions

of different forums, i.e. the EOIR and that of the District

Director. I cannot see how the items you mention have any bearing

on the proceedings before the Immigration Court. Neither can I

see how and wherein the confidentiality clause applies; nor

what evidence was there to suppress.

EXHIBIT 3lf\
31

Adan G. Vega, Esquire

2918 Bagby, Suite 200

Houston, Texas 77006

August 2, 1988

We admire Judge Yarbrough for being "sensitive to the issues at

hand" . This would make two forums which are sensitive to the

pertinent issues. However, the act of the Immigration Judge

terminating the case is incorrect and clearly in error. It is

basic that the Immigration Judge has no authority and jurisdiction to terminate the proceedings under the facts. The

Judge's action impinges upon the District Director's exclusive

authority to control the prosecution of deportable aliens.

Where the Service has initiated proceedings and seek to prosecute this proceedings to a conclusion, the Immigration Judge

is obligated to order deportation if the evidence supports a

finding of deportability on the ground charged. Clearly, the

Judge's action is a clear derrogation of the carefully defined

jurisdictional scheme set out in the regulations.

Since the question presented is jurisdictional, the Trial Attorney

correctly reserved and filed an appeal. One cannot read into

this act of appealing a Service posture of "adraantly" pursuing

the deportation of your client.

In consideration of all the foregoing, we hope that you will be

guided in all your cases with a similar posture.

Respectfully

FVHIRIT 1if\
32

EYIIIMT -xi*\
33

Mr. MAZZOLI. Mr. Vega, thank you very much, and thank you

both for acknowledging these severe time constraints, and I appreciate that very much.

Let me yield myself five minutes to ask a few questions.

Ms. Slaughter, as I read your testimony and listened to Mr.

Vega's, and have read other testimony prepared for today, certainly a person would have to be very hard of heart not to have a lot of

sympathy for the cases that you have both described, and for the

general generic situation of families that might be separated.

But before Congress can ever do anything, we have to show facts.

We have to tell our colleagues, most of whom are not from Texas,

most of whom don't live on the border, most of whom have a kind

of peripheral relationship with these matters, though serious but

not intimate to their districts•we have to make a proof of numbers: how many, what is the real existence of the problem.

And let me ask you, of the five thousand cases you have reviewed•and you say one-third involve family matters•how many

of that one-third have ever actually been separated?

Ms. SLAUGHTER. I don't know that I could answer that. But those

are all individuals that are currently in the United States, and

have been in the United States, with the exception that the nonqualifying members came after the qualifying members.

Mr. MAZZOLI. Yes. But no families have been separated, that you

are aware of?

Ms. SLAUGHTER. NO. The closest example I have is the one that I

did mention, where the individual

Mr. MAZZOLI. That you mentioned in your statement, OK.

Ms. SLAUGHTER. And we have a couple of others of those cases in

our office right now.

Mr. MAZZOLI. Then is it fair to say that, at least for the moment,

between the INS's blanket family guidelines and the exercise of

discretion•for example, the particular case that is now before the

district director, who said that a front-line person may have acted

a little bit too aggressively or whatever•is it fair to say that at

this point the combination of those two activities has yielded a satisfactory handling, as far as the family unification or family unity

is concerned?

Ms. SLAUGHTER. I don't know that we can say that, Congressman,

because we have been very fearful to take in these families affirmatively and test this policy, the non-blanket cases, not knowing

what the standard is going to be to prove the compelling and humanitarian factors in each case.

The only ones that have come our way have been accidentally.

They have come to us after they have approached the INS on their

own, as the Maria Lopez example. So I don't know that we have a

track record to refer to that, but we are all very trepidatious about

going in and testing that non-blanket policy.

I would like to add also that of the cases that I have monitored,

of the one-third of the five thousand, very few of those cases would

benefit from the blanket policy.

Mr. MAZZOLI. Well, of course, as I mentioned, the blanket policy,

plus the exercise of discretion, the inherent authority that the INS

people have to decide which people stay and which people go. Let
34

me ask you one other thing. And I would probably ask the very

same questions of Mr. Vega.

We also have to get a Congress of 535 people, and a majority in

both bodies, to agree to something before it can be made law. And

many of these people, like I said, don't live in border States, don't

represent border States. I think all States are involved•my own of

Kentucky, certainly.

But many of my colleagues come up to me on the floor and say,

how am I going to argue your case? How am I going to justify supporting this kind of a proposition of family unity? How am I going

to tell those families that are waiting now to be unified through

the regular Immigration Act, the regular preference system, where

there sometimes are waits for many, many months and years in

the second preference, where you have actually spouses involved•

tell me, how can I justify to them to say that we are going to give

these people a preference, first of all, by being allowed to stay in

the country, in the first place, from the first legalization; and then,

despite the fact that Congress didn't order derivative legalization,

that we would allow them to stay on in a kind of second effort on

their behalf.

How would you handle that? How would you justify that?

Ms. SLAUGHTER. Well, it has just always been incongruent to me

from the very beginning that the legalization program, or amnesty,

as it is commonly called•and it truly, I don't feel, is an amnesty,

simply because it doesn't include a family, legitimate family

Mr. MAZZOLI. It was not meant to be an amnesty. Again, you

know, I call it legalization. It was never meant to be an amnesty. It

was really mislabeled.

Ms. SLAUGHTER. Very commonly called amnesty, though. But it

seems incongruent, with the spirit of what legalization was intended to do, that there isn't a provision to allow families to stay together, and, on the contrary

Mr. MAZZOLI. But as I mentioned, how do you tell that to the

people who are waiting for their number to come up in the regular

system? How do you justify to them a separate category for these

people?

Ms. SLAUGHTER. I don't know that I am advocating an outright

derivative status, but a status that will allow them to remain here

and not succumb to an underclass lifestyle.

Mr. MAZZOLI. OK. Mr. Vega, my time has really expired. But let

me ask you, just kind of essentially, do you have data that you can

give me beyond the one case that is in your file there?

Mr. VEGA. This is the closest that we have got where a child

almost got deported.

Mr. MAZZOLI. See, what we are doing, we are dealing prospectively. We are sort of anticipating the problem, more than having the

problem on our doorstep. Is that a fair statement, basically?

Mr. VEGA. That is correct.

Mr. MAZZOLI. And there is nothing wrong with anticipating a

problem; don't get me wrong. But, apparently, at this point it is

very hard to say that the INS has just slavered at•you know, just

lusting for the opportunity to break families up. That is not the

way it has happened at this point.

Mr. VEGA. Well, there is a strong potential that it
Mr. MAZZOLI. I am saying, I don't argue that we sometimes look

ahead before the problem becomes a crisis. But at this point, you

would have to say also that it is fair to say that the families have

not now been capriciously or arbitrarily broken up, and that

mostly the factors seem to play in the hands of keeping the family

together.

And let me ask you, how would you talk to a group of people who

are waiting to come in from India, or the Philippines, where the

numbers are backed up to the horizon? How would you justify this?

Mr. VEGA. The same way you justified the legalization program.

Mr. MAZZOLI. And how did we?

Mr. VEGA. Well, it passed through Congress; it became the law;

and there is a segment of the population that never followed the

law, and here they are receiving legal status. And the same analogy can be made to the children.

Mr. MAZZOLI. I thank you. My time is up. The gentleman from

Texas is recognized for five minutes.

Mr. BRYANT. Thank you. Ms. Slaughter, I wonder if you would

explain the blanket policy of the INS as it has been explained to

you, as you understand it.

Ms. SLAUGHTER. The blanket policy, to my understanding, allows

for minor children of two qualifying parents to remain in the

United States. That is the blanket policy. The non-blanket would

be any other mixed family situation that is not a minor child of

two parents who do qualify.

Mr. BRYANT. Well, you have given three good examples, and your

testimony was a subcommittee chairman's dream, it was so succinct. For that I thank you. But you skipped your three examples

here, to save time, which I thought were very compelling. I read

them.

What is the future for Jose Mendoza, or Raul Garcia, or Edmundo Castillo? Under the current system, what is in store for

them?

Ms. SLAUGHTER. I think the Jose Lopez family will probably be

shelved in the INS until some further guidance comes down to

them allowing them to do something with Jose Lopez. He has gone

as far as he can. He has already been before an immigration judge.

The immigration judge could do nothing for him. He is back with

the INS district director, who I am sure feels his hands are tied as

well.

I don't know if the INS district director•the first 45 days, I believe, of the Family Fairness Guidelines, all cases were to be referred to the regional offices for the commissioner's review. I don't

think that is being done any longer. The fairness guidelines only

said the first 45 days, I believe.

This case will have to be decided by the district director; as we

have seen many cases before, they don't get decided. However, if he

is pushed to decide, I don't know what he will decide.

Mr. BRYANT. IS your impression that most of the people in this

circumstance understand that because of either the blanket policy

or the unstated enforcement policy of the INS, that they are not

going to be deported?
36

Ms. SLAUGHTER. NO. I don't think the community knows that. By

the time they are hearing anything about the family fairness

policy, what they hear is oftentimes what they want to hear.

And, of course, they want to hear that there is some kind of permiso they can go down to the district offices and pick up, and they

go down to the district offices. And I am sure there are hundreds

more who haven't come our way and crossed our paths, at the

agencies, anyway, that are doing the same thing. What is happening to them, I don't know.

Mr. BRYANT. I have been a supporter of family unification legislation. I am struck, however, by the question that the Chairman

asked of you with regard to whether or not you know of instances

where people are actually being deported. I had been under the impression that that was widely taking place.

I wonder if you had any further observations about either the

meaning of your answer, or maybe there is something going on you

are not aware of.

Ms. SLAUGHTER. I don't know of any deportations that have

taken place in the family unity situation, no.

Mr. BRYANT. Mr. Vega, do you have any

Mr. VEGA. I have no cases that I can say that a child has actually been deported. This is the closest that we have come. But there

is no example that I can provide at this time.

Mr. BRYANT. I think it is fair to observe that what is feasible and

what can be passed through the Congress, and what our ideals

would lead us to want, is not always the same thing at any given

time.

I feel that the family unification matter should be resolved

through statute, using the same logic that was used to justify the

legalization in the first place. If you are trying to bring people out

of the shadows, then you must bring the family out of the shadows,

not only the individual.

I think, however, it is interesting to note that, at least as of now,

apparently you have not heard reports of deportations yet.

OK. I have no further questions.

Mr. MAZZOLI. Thank you. Using just a couple of seconds left to

the gentleman from Texas, Mr. Vega, in your statement•maybe

not the one that you read, but the one that you sent our staff•you

talk about a couple of things that are very interesting to me, of enforcement of the 1-9 forms, the vans, and six people to perhaps

check a few records, and so forth.

I would appreciate your giving me details, if you are comfortable

in doing that, because a lot of our problem is we sometimes have

the apocryphal stories, or these things that can't be documented,

because if that is documentable, it does seem to me that it is unnecessary and could be intimidating, even though typically these

examinations occur on three days' notice.

But I would love to have any information you could get me on

that.

Mr. VEGA. Yes. I have a situation that took place in Houston, in

which I was involved as the attorney of record. This concerned a

restaurant where the Immigration Service had sent out two vans,

and this was for the purposes of examining the 1-9 forms.
37

And upon arrival, they expressed that they were really not there

for the review of the 1-9 forms, and subsequent to that they issued

a subpoena. And it was a very broad subpoena, where they requested various records•tax records, personnel records, I-9s, et cetera.

And, in effect, what took place was the subpoena being used as

the three-day notice. And it was a three-day period in which they

had to respond to that subpoena. And there was a confusion as to

what is actually the notice. Should the subpoena be the notice, or

should it be an oral notice?

Mr. MAZZOLI. Well, one of the subsequent witnesses•and if you

stay today, you will probably hear him testify concerning that very

fact, whether or not the INS does have authority to issue a subpoena without having that subpoena argued for and justified by the

ALJ. So it is an interesting point.

Mr. BRYANT. May I ask one question?

Mr. MAZZOLI. Certainly.

Mr. BRYANT. YOU didn't come prepared to testify about this, but

you are in such constant contact with people that have come here

from other countries, with immigrants, legal and otherwise, that I

wanted to ask you, what has been the net effect of the passage of

this law with regard to the amount of people coming to the United

States, in your opinion, just based upon your observation or anecdotal references?

Ms. SLAUGHTER. I am sorry. Is the question directed to me or Mr.

Vega?

Mr. BRYANT. Yes•well, to each of you. But what has been the

effect of the enactment of this law on the number of people immigrating illegally into the United States?

Ms. SLAUGHTER. I don't know that I can scientifically answer

that.

Mr. BRYANT. I am not asking for a factually-based answer, but

you are surely in a position to observe

Ms. SLAUGHTER. I frequent many little Mexican grocery stores

that are in your district in my neighborhood, and I am constantly

asking, do you see new people coming. And the overwhelming

answer I get is, absolutely. There are brand-new people arriving

here every day.

We see a lot of people that did not qualify for legalization that

come to our office who are recent arrivals, as well. Again, that is

not a scientific answer, but

Mr. BRYANT. Are there as many, do you think?

Ms. SLAUGHTER. Perhaps not as many, but they are still coming.

Mr. BRYANT. And what are they doing for a living when they

arrive here?

Ms. SLAUGHTER. A lot, I suppose, are doing yard work, casual

labor.

Mr. BRYANT. OK. Mr. Vega?

Mr. VEGA. I would have to say the same thing. I don't think it

has really stopped the flow or the influx of illegal immigration into

this country, and there are still individuals coming into this country. As to what they are doing for a living, I have no idea, but they

are still coming.

Mr. BRYANT. MS. Slaughter indicated that it appeared to her

there were fewer people coming. Would you agree with that?
38

Mr. VEGA. I would have to agree with that. Judging also from

the number of people that visit us at the office, there is a lot less

now than there was, let's say, two years ago. And these are recent

people that arrived in this country. There is a lot less.

Mr. BRYANT. Thank you.

Mr. MAZZOLI. Mr. Vega, may I ask you a couple of questions on

another subject that you brought up, the 1-772 form and the fact

that it is virtually unavailable, and perhaps people are not aware

of the need to file that form in order to protect them.

Let me ask you two questions. Have you brought that up with

the district director, or any people in authority, that these forms

are not in abundant supply and ought to be made available; and

have you seen any reaction, if you have said anything like that?

Mr. VEGA. Yes, sir. I did bring it to the attention of the district

director in Houston, and we requested that these forms be handed

out at the legalization center.

Mr. MAZZOLI. Right.

Mr. VEGA. And that has not taken place.

Mr. MAZZOLI. That has not taken place? Can you tell me when

you may have brought that up with the district director?

Mr. VEGA. The early part of this year.

Mr. MAZZOLI. The early part of 1988?

Mr. VEGA. The early part of 1988.

Mr. MAZZOLI. Not the early part of this month, but the early part

of this year?

Mr. VEGA. Spring of 1988. And to this date, the applications have

not been distributed at the legalization center. One thing that I

have seen them do is distribute the forms in the letters that are

advising people to show up for the interviews on their applications

for the immigrant visas. Now, that is actually taking place as of

this month.

Mr. MAZZOLI. If I understand the thing correctly, in addition to

being one of those four categories, either an asylee, a refugee, a

temporary green card holder, or a permanent green card holder,

the people have got to file the 1-772, essentially in order to justify

a claim for discrimination.

Now, I think that they have now changed so that if you file the

form before you file the cause of action, even if the cause of action

arose before you filled out the form, you can still justify your case.

But essentially speaking, the form ought to be filed before you

are protected. Is that correct, as you understand it?

Mr. VEGA. That is correct.

Mr. MAZZOLI. And so that is why having those available is a very

important part, right at the start either when they get their work

authorization or certainly when they get their temporary residency

ticket, or the temporary green card•that is, at least at that point,

they should be told, the only way you can protect yourself is by

filing this form?

Mr. VEGA. Exactly. And not only having that form readily available, but also explaining that this form has to be filed.

Mr. MAZZOLI. Counseling them, explaining what it means.

Mr. VEGA. Exactly.

Mr. MAZZOLI. Right. Well, I think that is a valid point. I appreciate your having brought that up, too, because those last two, about
perhaps a kind of show of force, and then this thing about the I772, are very important.

Thank you all very much, and you have helped us already to

figure out how this thing is working. Thank you so much. And if

Mr. DeLara files a statement, without objection, his statement will

be made a part of the record.

Mr. MAZZOLI. Let me call forth our second panel, please: Ms.

Nancy Shivers•wasn't there a Governor Shivers at one time? I

thought so. Nancy Shivers, Board of Governors of the American

Immigration Lawyers' Association; Mr. Charles Foster, Former

Chairman of the Governor's Task Force on Immigration, and a distinguished member of the AILA; Mr. Isaias Torres, attorney from

San Antonio; and Mr. Ruben Montemayor, attorney of San Antonio.

Mr. FOSTER. Mr. Chairman, I was with Mr. Torres this morning,

and I don't see him here. But he said he might be running a few

minutes late. He was flying over to Austin for another meeting.

Mr. MAZZOLI. IS he? If he comes in a little bit later, Charlie, we

will certainly welcome him. And if not, his statement will be made

a part of the record and we will be able to work with that.

And Ms. Shivers, you are recognized, and we appreciate all of

you taking the time to join us today.

TESTIMONY OF NANCY SHIVERS, ESQ., DIRECTOR, BOARD OF

GOVERNORS, AMERICAN IMMIGRATION LAWYERS' ASSOCIATION

Ms. SHIVERS. I would like to say that everything that has already

been said about family unification, I would agree with, with one exception. Rather than reiterating what has already been said, I

would just like to emphasize that in my written remarks, I indicated that I think the ultimate solution for Congress is going to be

looking overall at the immigration laws and the immigration

quotas themselves.

I also, even though I am in Texas, frequently have people in my

office, including many people from Mexico, who do not fully appreciate the benefits that the legalization program has bestowed upon

some members of their family, while they have been waiting patiently across in Mexico, or perhaps waiting impatiently here and

having not qualified.

I realize that Congress over the next year or so probably will be

considering various changes in the quota system itself, and I think

that is very appropriate. Again, in my remarks, I tried to touch on

that.

I think until the United States ends a system where people have

to wait ten or fifteen years for visas, we are always going to have

illegal immigration; we are always going to have a lot of problems

that no amount of employer sanctions or other remedies are going

to solve.

That is a tricky, tricky issue•how do you solve that problem, but

I know there are many very creative legislative solutions that have

been offered to Congress, both by the Immigration Service and by a

number of your own members. So I would urge, I guess, that that

be considered.
40

In terms of whether or not people are being deported as a result

of the family unity or lack thereof, I am not really aware personally of anything other than one case within the San Antonio district

where I practice. And that did involve a case where one member of

the family, the wife, had received her temporary resident card, and

the husband was ordered deported.

I didn't represent the people involved in that. I am on the board

of a project, an immigration project, for the Bexar County Legal

Aid Association, and that is the only reason I am aware of that. I

didn't have time to get the particulars of that case to bring today.

If it is any consolation to you from Kentucky and you from

Texas, I received by Federal Express this morning in my office a

very voluminous file, which I will forward to you, from an AILA

chapter chairperson in Oregon. And I will tell you that maybe it is

just the perimeter of the United States, but the problem definitely

exists in areas other than Texas or California. And so that might

give you

Mr. MAZZOLI. What problem is that?

Ms. SHIVERS. The family unity problem.

Mr. MAZZOLI. Oh, this is what that deals with?

Ms. SHIVERS. Yes, right. Apparently, in the Oregon district,

which includes the whole State, the Portland district office, the district director there had taken a less humane approach in dealing

with the whole family unification situation than the district director in Dallas is seeming to take.

After what I would only characterize as a great deal of heat and

many Congressional inquiries, both to the House members involved

and to both Senators, there seems to have been a softening, shall

we say, of policy where the district director has indicated that they

are going to look at these cases again a bit more carefully.

I really do think that perhaps we are having these hearings

early, and I think that is wonderful. I love for Congress to be looking forward, and not having to react to a terrible problem.

I think the problem is looming, though, in the family unification

situation, and I sympathize fully with you as Congressmen. I don't

know how you answer the people, as you say, from India, or from

Mexico, who say, this isn't fair, other than I have to agree with Mr.

Vega. The legalization law wasn't fair. The seasonal agricultural

worker provisions weren't fair. Life is not fair. But that is

Mr. MAZZOLI. That was Jimmy Carter. Just to be sure we have

the right president.

Ms. SHIVERS. Yes. I was going to add that in just a moment.

Mr. MAZZOLI. That was Carter's contribution to all-time quotable

phrases.

Ms. SHIVERS. Anyway, having resolved the fact that this is not

terribly fair, I would just urge that, over the next year when the

opportunity comes to look at serious amendments to the quota

system, that you try to work out solutions that are going to resolve

the problem.

Because even if no actions are taken now, as far as family unification or legislating a deferred action status, and things stay in the

status quo, the numbers are going to become so out of proportion

that the employer sanctions law, I believe•if it is going to work,

and I am not sure that it will•but it is going to be seriously weak-
41

ened because of all these people who just really lose patience after

a while.

There are a couple of comments I would like to make about employer sanctions and discrimination. I included just a couple of

pages of remarks about employer sanctions, because I knew that

Charles was preparing very detailed ones which are probably far

more thorough than any that I could do.

I would comment that within the San Antonio district and in my

experience as an AILA board member talking with people around

the country, that far and away the Immigration Service should be

given very high marks for the educational efforts that they have

made in the employer sanctions program. I think they did a much

better job there than they did on the legalization program.

The problem with employer sanctions is it is not quite as easy a

law as everybody would like to keep saying it is. Last year, I was a

member of a central office liaison committee for the American Immigration Lawyers' Association. We presented a list of about 30

questions to the central office in March and asked for answers, and

some of them were pretty simple, and I have touched on a couple of

those in my written remarks. And we were informed that they all

required legal answers, and they couldn't tell us what the answers

were; indeed, we still don't have answers to those questions.

That is a little bit troublesome, because

Mr. MAZZOLI. May I ask you, when again, Ms. Shivers, were

those questions propounded to the central office?

Ms. SHIVERS. They were delivered to them in March, and our

meeting was in April, on April 12. And I recognize that yes, some

questions do involve legal answers, and certainly if I were Immigration dealing with AILA, I would always probably try to get a

legal answer when possible; though one would think, after this

many months, that answers would be available.

And for the benefit of those who have not read my remarks, one

of the questions was whether or not, if you have a babysitter that

comes every Saturday to your house, whether or not you need to

fill out an 1-9 for a person in that situation.

I would advise both of you, if you don't know, that probably 99

percent of Americans in that situation are not filling out I-9s. But

I really think they are probably arguably violating the law. So that

is an issue•that is just an example, I guess, of some of the issues

out there.

In our district, and indeed in a number of other districts around

the country•and Charles and I were both at a Board of Governors

meeting of AILA the first weekend in August, and I attended a

chapter chairs meeting where people from all over the country

spoke about the problems that they had or had not had with employer sanctions.

The comment was that investigators are coming on full force.

Large numbers of them have been hired. And naturally, whenever

you hire a lot of people, they have to do something to justify their

existence.

And they are going out and giving a lot of paperwork violations

right now. Many of the paperwork violations, I believe, are being

issued simply because people still don't understand what they are

supposed to do.
42

I am a small employer, and I frankly hope the Immigration Service doesn't come visit me. I think mine are in order, but, I have a

terrible time remembering what I am supposed to do when I hire

somebody. I have only hired three or four people since November

of 1986.

I think particularly for small employers who do not have a personnel office, it is very difficult to understand exactly what you are

supposed to be doing on this. I have found many employers who

are filling out I-9s, but didn't realize they are supposed to sign

them, for instance, small things like that.

Those people are being fined, at least in our district. They are

getting small fines of $250, but it doesn't make people very happy

about the system, and they are still not certain what they are

really supposed to do.

Mr. MAZZOLI. May I ask you a question, Ms. Shivers? And I

apologize; I keep bouncing in here. But are those paperwork violations exclusive of hiring violations?

Ms. SHIVERS. Well, that is a rather gray area, I would say.

Mr. MAZZOLI. NO, because I understand

Ms. SHIVERS. Yes. These are

Mr. MAZZOLI. Only paperwork; I mean, they are not being fined

for having illegally hired, but they are being hit for the paperwork,

strictly alone?

Ms. SHIVERS. For failing to have the I-9s

Mr. MAZZOLI. I would like to have documentation of that.*

Ms. SHIVERS. Well, yes. I will be happy to provide that.

Mr. MAZZOLI. And I also want those questions that you would

like to have answers to.

Ms. SHIVERS. Good. Maybe you can get us answers.

Mr. MAZZOLI. Really, sincerely, I would like to find out•I think

you are entitled to have answers. Even if the answer is no answer,

you know. I mean, you ought to be given some kind of response. So

if you could file those with our counsel later, not necessarily today.

Ms. SHIVERS. Certainly. Yes. I don't have those with me.

Mr. MAZZOLI. I would like to have those questions.

Ms. SHIVERS. OK. The last issue I touch on in employer sanctions

is that I think that the Immigration Service often creates its own

regulations, which is a problem that I am sure the subcommittee is

very well aware of. I will give you an example, and I can provide

the committee with written documentation of this.

In the early months prior to enactment of•or after enactment of

the law, but prior to June of 1987, I had a number of occasions

where employers were visited, for one reason or another, by the

Immigration Service, and an employee who was not authorized to

be employed, but who was a grandfathered employee, if you will,

was issued an order to show cause, and placed in deportation proceedings.

The employers were advised that if they continued to employ

that person after the issuance of the OSC, they would be in violation of the employer sanctions law, which is totally false.

Mr. MAZZOLI. This is a grandfathered employee?

' This documentation was not received by the Subcommittee.
43

Ms. SHIVERS. These are all grandfathered employees. As I say, I

will provide the committee with written documentation of these.

I thought that this was a problem that had gone away, and that

this was something that was new; they didn't know what they were

doing; we were all learning at that time. As recently as a month

ago in San Antonio, an employer in exactly this situation, with a

grandfathered employee who was arrested, was advised that if he

continued to employ that employee, that he was violating the employer sanctions law.

I am giving this as an example, not to put a black finger on the

San Antonio district office, because I think they have done a very

outstanding job. But I hear stories like this around the country.

And I think those are things that are documentable, if the committee wants to document them.

The problem is it conveys a very mixed message to employers of,

well, are we supposed to follow what the law says it is, or is the

law what the INS says it is? That is a problem.

[The prepared statement of Ms. Shivers follows:]
44

Shivers &> Shivers

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San JbUomo, OX 78210

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Statement re Family Unification relating to divided families

resulting from legalization

By Nancy Taylor Shivers

Key Points Discussed in Statement

1. Reality of the divided family

2. Inability of Immigration Service to fash ion remedy

for problem without legislation

3. Continuing problem of divided families because of

existing immigrant visa quotas and resulting backlogs

A. Description of typical divided family situations

5. Meed for revision of existing quota system to take into

account legalization and to be reviewed at regular

intervals to take into account other changes in future

years

6. Likelihood of deportations of family members

7. Need for adequate funding to increase staff of

Immigration Service handling adjudications: streamlining

legal immigration will reduce illegal immigration
45

FAMILY UNITY/DIVIDED FAMILIES

The aftermath of the legalization program Is the reality of

divided families, occurring because only some members of many

families (all of whom are in the United States) have qualified

for legalization. Under the existing quota system that governs

the issuance of immigrant visas, divided families have long beeni

a reality. Clven the 10 plus year backlog in the second

preference immigrant visa category for persons born in Mexico,

spouses and children often are forced either to live in the

United States illegally or to maintain a family unit through

occasional "international" visits. Now however, the United

States will face a much clearer realization of the divided

family problem simply because so many Individuals will face

the problem within a relatively short time frame. AND these

individuals are much more obvious to the American public than

other groups have been in the past.due to the widespread

media coverage of the happy and the sad aspects of the

legalization program.

The Immigration & Naturalization Service's Commissioner Alan

Nelson deserves praise for attempting to fashion an essentially

extralegal solution to the divided family problem. Ultimately

a legislative solution must be provided. There is no certainty

that each District Director of each district office of the

Immigration Service will feel Inclined to feel compassion for

family members who did not qualify for legalization. It is

certain that under existing law there is not any way that such

"illegal" family members can be granted employment authorization

unless they are placed in a deferred status category by a

District Director. The logistics of placing tens of thousands
46

of persons in deferred status would overburden the offices

of the Immigration Service responsible for issuing benefits

at a time when their staffing and support seems to be dwindling

while their responsibilities keep growing.

While the interim phase of the legalization program--going

from the time when temporary residence is granted forward to

the t ime when pe rmanen t residence is granted •may present

problems for the divided family, there is no immediate

solution awaiting at that stage unless Congress alters the

present immigrant quota system. As noted earlier, if a Mexican

citizen married woman becomes a permanent resident in May of

1989, she can file a second preference petition for her Mexican

citizen husband and children. Under existing quotas, in 1999

they would possibly be reached in the quota. Even if the woman

applied to become a U.S. citizen five years from the date that

she became a permanent resident (in 1994), she likely will not

become a citizen for 6 to 18 months (allowing for Immigration

Service processing times and court time). At the time that she

becomes a citizen, her husband and children can immigrate as

immediate relatives BUT still some considerable number of years

will have elapsed. For citizens of countries less affected

by quota backlogs such as £1 Salvador or Canada, the waiting

time under the second preference drops to about 2 years. Still

the time that the family remains "in the shadows" is in the

four year range.
47

Is the divided family problem an Isolated one? I think not

based solely on my own experiences representing Individuals

applying for legalization and assisting in an amnesty aid

project in San Antonio, Texas. 1 reviewed all of the cases

that our office handled and determined that at this time at

least 10Z of the cases involve what I deem the most serious

family unity problems. These cases involve families where

all members of the family have managed to make their way to

the United States over the past 10 years, in a stream with

father coming first, followed by mother and older children

or very young children, followed finally by all of the

children. They are the 1979, then 1982, then 1984 arrivals.

If they are lucky, they fit the profile of the father coming

first and qualifying. Lucky because these families have a

breadwinner who can support them over the long wait for

visas. The less fortunate ones often are the teenagers

whose families reunited in the United States in 1983 or 1984.

These children have just now graduated from high school and

are learning that they cannot continue their educations and

cannot work. The least fortunate ones are the wife and

young children who did qualify but whose husband/father

did not qualify because he was picked up at a job site in

1984 and deported instead of being voluntarily returned. Since

there were no waivers provided for in the 1986 law, these

persons are here in the shadows.

Another 1S-20Z of the cases that I have handled involve truly

split families, ones that have made the hard economic decision

that most family members will remain behind in Mexico while

the father/husband/older son earns money in America to send
48

Co the family in Mexico. Weekly I talk with these people

who leave sadly when I explain that there is nothing in the

law that will help them bring their family members here to

Join them.

Are there solutions to this problem? There are always solutions,

both short-term and long-term. Congress has been considering

legislation that will impact on the way that legal immigration

to this country occurs. Unfortunately, very little of the

legislation deals with any resolution of the problem. In the

spring of 1988 the Immigration Service unveiled its own

proposals for changes in the exiting quota system. That proposal

had much merit because it recognized that ever longer backlogs

in the wait for immigrant visa do nothing to reduce Che spectre

of illegal immigration. Indeed, in che case of family members

that are separated, a ten-year wait seems far too long. Congress

may well need to consider a revision of the quota system tha

takes into account the effects of the legalization program for

families and for employers. The Immigration Service's proposals

did so by allowing for increases in legal immigration over

the early years of the decade of the 1990s that were tied

directly to the numbers of persons becoming permanent residents

in 1989 through 1991. Such an approach coupled with a mandatory

five year review of the quota system would allow. Indeed would

force, for reassessment of the patterns of immigration into the

United States. Legislation that governs the quota system with

a realistic view of the Impact of legalization would be a short

term solution to the overall problem of legal immigration and

a long term solution to the divided family problem brought
49

about by legalization. Hopefully, Congress will seize this

opportunity to set in place a quota system that (1) more

accurately reflects the needs of the United States and (2) is

sensitive to changes in those needs that likely will occur

in predictable cycles. Unless Congress mandates specific

time intervals for review of the system of immigrant visa

Issuance, then legal Immigration to the United States will

never have the potential to be orderly and a sound base for

discouraging illegal immigration.

Is an even more short-term solution to the problem of the

divided family resulting from legalization needed for those

families that are here•half in the shadows and half out of

the shadows? YES, such a solution is needed. The Immigration

Service correctly observes that it did not create this

problem and that It cannot solve the problem under the

existing law. Without a specific legislative mandate requiring

that immediate relatives of family members granted legalization

NOT be placed in deportation (save for the conviction of crimes

of moral turpitude or comparable grounds of exclusion), it is

all too likely that these husbands, wives, sons and daughters

will be picked up and will be encouraged to leave the country

"voluntarily" or be deported. This is not an exaggeration:

notwitstanding the mandate of Congress and the specific orders

of the Commissioner of the Immigration Service that all aliens

apprehended after the passage of the Immigration Reform & Control

Act be questioned about legalization eligibility and be released

with employment authorization if prima facie eligible, numerous

aliens were summarily returned to Mexico with no questioning or

threatened with Jail if they insisted on their eligibility.
50

If there Is only a general recommendation from the Commissioner

that the "illegal" members of the divided families be considered

onfa case by case basis for possible deferred action status,

many persons will fall outside of the careful consideration.

Enactment of legislation alone will not resolve this problem

unless the Immigration Service is given adequate funding to

staff its offices to ensure that what Congress legislates

can be provided.

If the ultimate conclusion of Congress is that this divided

family problem will go away gradually, then the members of

Congress must recognize the very mixed message that is being

sent to aliens around the world.

Finally, whatever solution Congress may develop for the short

term problems of divided families, it is critical that Congress

recognize the increasing frustrations of many varied groups

with the way that legal immigration is being handled. Indeed

even within the Service itself, those persons involved in the

legalization program and in adjudications are demoralized.

They are asked to assume an ever greater workload with very

little increase in staffing at the adjudications or support

level. Meanwhile, more and more funds and personnel are being

poured into the investigations and deportation branches of

the Service. As delays mount in adjudications, the frustration

of businesses, relatives, interested citizens and of the Service1!

staff increases. Over the next two years the Service is to

handle thousands of interviews of persons seeking to have their

conditional resident status removed and hundreds of thousands

of interviews of temporary residents seeking to become permanent

residents, all in addition to the usual workload.
51

You may question how this relates to the family unity or

divided family issue. Quite simply the projections I set

out for the time that it will take one person from Mexico

to immigrate his or her spouse may be quite optimistic if

the Service lacks the staff to handle this enormous volume

of interviews. Congress has authorized the expenditure of

enormous sums of taxpayer dollars for extraordinary increases

in the Immigration Service's investigations or enforcement

operations in an effort to stem the tide of illegal

immigration. 1 urge Congress not to overlook the expenditure

of funds to ensure that legal Immigration can proceed at

something more than a snail's pace•such an expenditure to

facilitate the legal entrance of aliens into the United

States coupled with a meaningful overhaul of the immigrant

visa system (including regular reviews of the system) might

well do as much if not more than ever Increasing sums of

money for enforcment.
52

EMPLOYER SANCTIONS

The reality of employer sanctions Is that a large number of

small buslnesspersons In the United States still have no idea

what Is supposed to be done by them in terms of hiring. The

1-9 remains a confusing document if you only fill out one

every two or three months or if you fill out several for

one 3 day Job. Recent decisions from employer sanctions

cases have confused employers even more and cause them to

believe that they must be detectives able to ascertain the

authenticity of documents. The impact of the last crazy

days of legalization is now emerging as a number of

employers are being fined for not completing I-9s properly

even though the INS instruction booklet is remarkably

not helpful in trying to figure out how to insert the

legalization piece of paper receipts into the 1-9 format.

Since the Immigration Service itself as recently as March

of 1968 could not advise the American Immigration Lawyers

Association of the answers to basic questions about whether

an 1-9 was needed for a babysitter who came every Saturday

night, it seems ironic that the Service is now lssuln g

paperwork citations with great zeal.

The other reality of employer sanctions is that the existing

immigration laws simply do NOT allow an employer to employ

legally anyone but a member of the professlons--on a temporary

basis. The H-2 visa category has been dramatically narrowed

in its scope by the Department of Labor. There is no other

possible nonimmigrant visa category that allows an employer

to bring a skilled or semiskilled worker into the United

States on a temporary basis; to bring such a worker on a
53

permanent basis requires at least a 2 year wait under the

existing quota system notwitstandlng serious skilled and semiskilled labor shortages in the United States. Two years ago

the then Secretary of Labor spoke here at Trinity University

and the headlines the following day read "Shortages of

Skilled Labor Projected for the Next Decade."

Employers are now caught in a true bind: to comply with the

law, they cannot hire anyone without authorization to work;

if they cannot find an American qualified to do the work they

must wait two or more years to bring in legally the skilled

worker.

The Immigration Service's adjucations or examinations branch

was not ready for the impact of employer sanctions. The law

Is about documents and having the documents NOW. It is

interesting to note that the Service regulations require

that an employee produce an unavailable document such as

a drivers license or birth record within 21 days (which is

nigh unto Impossible) BUT allows itself 6 0+ days to provide

aliens with work authorization documents. Increased staffing

on the adjudications/examinations side of the Service is

as critical to the success of employer sanctions as the

hiring of massive numbers of investigators to issue

c1 tat ions.

Other hearing participants are providing more detailed analysis

of employer sanctions than I. Without reading those statements,

I would urge the committee to recognize that small businesspeopl*

are being papered to death by one new federal program after

another. The 1-9 may not be the straw that breaks the camel * s

back but it may come close.
54

Mr. MAZZOLI. Yes. I am sorry, Ms. Shivers. Your time has expired. I appreciate it, and we will come back to some questions on

that. Mr. Foster?

TESTIMONY OF CHARLES FOSTER, ESQ., COORDINATING

COMMITTEE ON IMMIGRATION, AMERICAN BAR ASSOCIATION

Mr. FOSTER. I also want to thank the Chairman and the committee for deciding wisely to hold, I understand, your first review

hearing out in the field on IRCA here in

Mr. MAZZOLI. It is possibly the first field hearing. We have had

hearings in Washington. I think John is correct; this, I believe, as I

search in my memory bank, is the first time we have been away

from DC.

Mr. FOSTER. Well, I want to congratulate you for having the

wisdom to come down to Texas and have it here.

Like Nancy, I want to touch briefly and expand upon my prepared remarks in the area of employer sanctions. I think to the

extent that employers are aware of the law, they are doing a very

good job. I have been impressed by their willingness to comply with

the law.

I spend most of my time representing employers just in the area

of immigration law, and I have yet to encounter any resistance at

all. Employers are eager to comply with the law.

There is some confusion still, as Nancy indicated, over what is

technically required; with large institutions, the policy may be understood at the top, but by the time it is translated down to the

bottom the way it is carried out, it is somewhat confusing.

I have had employers or people contact me saying that you can

only show, for example, the Social Security card and a driver's license to comply with employer sanctions, and that they cannot

accept a U.S. passport as evidence of citizenship, which, of course,

turns logic on its head. But in any event, by and large, employers

who are aware of the law are doing a very good job in attempting

to comply with it.

I think, as Nancy said, the lack of knowledge about this law is

widespread. I speak to lots of different groups, including our fellow

lawyers who are not practitioners in immigration law, and inevitably, when they learn that this law applies to their law office, there

is a look of shock.

And the reason is, with the very title of the law, Immigration

Reform and Control Act of 1986, there is an implicit understanding

that this law only applies to employers of aliens. And so even

though the Service did a very good job of getting out its handbook

for employers, I think many employers just looked at it, saw that it

came from the Immigration Service, and tossed it, on the assumption that they were not involved, as they were not hiring illegal

aliens, and did not realize the breadth of this law.

One more point that Nancy touched on about the confusion

about what to do. There has been at least one reported case by an

administrative law judge which to me is somewhat disturbing, that

is, when you have a possible charge of continuing to hire someone

knowingly that they are in unauthorized status in the United

States, is it sufficient for any immigration officer simply to walk in
55

and say, this guy is illegal and therefore you have got to terminate?

Even immigration law practitioners and even people within the

top bureaus of the Immigration Service, often will disagree over

the issues as to whether someone is authorized to work. And I find

that the immigration investigator is often the least sophisticated.

He may be very good in law enforcement techniques, but he himself, or she herself, may not have that in-depth knowledge of who is

permitted to work in the United States under a very complex

scheme, where you can have work authorization under a number of

different authorities.

In the case at hand, before the administrative law judge, an immigration officer walked in, said it looked like to him that the

"green cards" were not good cards, and the officer indicated he

would "get back" to the employer.

Subsequently, the employer was issued a notice of intent to fine,

and the administrative law judge held that there was no particular

notice required, and that the mere casual statement by the immigration investigator was sufficient to put the employer on notice,

and the employer therefore should have terminated.

Of course, that is easy to say. But employers are often faced with

conflicting laws. If they terminate an employee wrongfully, they

may be subject to other charges, or at least monetary fines.

Another case that has come recently to my attention comes out

of Houston, where an employer has been issued a notice of intent

to fine on the basis that the employment authorization was insufficient. The employer relied upon the fact that the employees in

question had letters from QDEs, indicating that the QDEs had accepted their applications for filing purposes.

Now, in fact, there were periods of time, particularly in Houston,

where the legalization office was very busy; you simply could not

get into the door. There were almost public health, serious congestion and safety problems. And the INS, both nationally and locally,

was encouraging aliens to go to the QDEs.

One of the disadvantages of that was that the individual was not

going in and getting a specific grant of work authorization. Instead,

they were going to the QDE and getting a letter.

In this particular case, the INS issued a notice of intent to fine.

It will be before an administrative law judge, as to whether or not

that was sufficient employment authorization. But it appears to be

somewhat contradictory for the Service on one hand to be encouraging aliens to go to QDEs, and on the other, giving notices of

intent to live on the grounds that the QDE letter did not constitute

sufficient authority to work.

As I indicated in my prepared remarks, I don't know whether

any of these problems are widespread. I am just bringing out the

fact that these are possible areas of abuse.

Another one is the possibility of the INS charging of criminal

harboring. I will not state before the subcommittee what the intent

of Congress was, since you gentlemen wrote the law. But I do know

that the INS Assistant General Counsel Paul Schmidt indicated in

his testimony before this committee•and the INS in their preamble to their regulations also stated, that it was their understanding
56

that the harboring was not to be a charge in the case of unauthorized employment.

To do so would render meaningless the Congressional enactment

of a tiered series of fines before you could get to a "pattern of practice." And yet there have been some reported instances of harboring charges having been brought, or at least threatened, and there

is some concern•and, again, it may be premature to say it is a serious problem, but there is concern•that this area could be criminalized, and that the Service could be tempted to bring or threaten

harboring charges rather than going through the regular series of

graduated fines.

Another issue that I want to touch on briefly is the genuine

problem that employers often face. We live, it is a cliche to say, in

a shrinking world, and employees, we know, are not interchangeable individuals. You cannot just say one employee is the same as

the other.

There are many instances where it is essential to an employer

that he have a particular kind of employee, and the particular

services of an individual may not be found. I am representing companies in Houston right now that have large construction contracts. They need key people, and because of the way the state of

the art has developed, some of the key people are overseas. These

are not only professionals, who may or may not qualify for H-l

non-immigrant visas, but in some cases technicians.

And they need these people to come in, and if they can do that,

they will get contracts that will result in employment of literally

thousands of people in the United States.

Part of their bid process requires them to show the resumes and

the quality of the people that they have. At the same time, they

are sending American workers overseas, because these particular

American workers fill needs that they cannot fill with overseas

contracts. So we have a complex economy.

Yet in many instances now, and, of course, employers are more

sensitive to the legal status of prospective employees because employer sanctions, basically, is working, at least at the large corporation level, there may not be a viable alternative where these individuals can be hired. There may not be a non-immigrant visa classification where these individuals could be hired.

Mr. MAZZOLI. Like an H-2 or something?

Mr. FOSTER. For an example, the H-2. The H-2 essentially is not

a workable vehicle. It may be in agriculture, but not in industry

because of the second requirement that the position be temporary.

The Labor Department as well as the INS essentially do not

assume that any position is temporary, as opposed to the intent of

the individuals to work temporarily. That is clearly required. But

for an H-2, you must also show that the position is going to disappear.

Mr. MAZZOLI. That is agriculture, yes. It is H-l that has some

possibility, maybe.

Mr. FOSTER. And one final note. I realize my time is up. I think I

would just like to discuss another problem; clearly, this was unintended, but there is a possibility that grandfathered employees who

are essentially frozen into their jobs, are subject to abuse; these in-
57

dividuals, because of the way the law is written, are not being

forced to leave the country; most of them are staying on the job.

And yet, because the employers know that they cannot switch

jobs, in some instances•and I don't think this is, again, widespread•they take advantage of them and in effect say, "I am the

only person who can legally hire you. If you leave me, you are not

going to be able to find a job under the new law."

I am a movie buff, and I believe that movies reflect the conventional wisdom of our society•and I have seen three movies in a

row, "Married to the Mob," "Diehard," and "No Way Out" and in

each of those movies, interestingly enough, Hollywood showed an

alien who was being exploited, with an official or an employer,

saying do this or I am going to turn you over to the Immigration

Service.

And while such actions may not be representative of our society,

the mere fact that that is being commonly shown in moves says

something about the problem of exploitation of aliens.

[The prepared statement of Mr. Foster follows:]
CHARLES C FOSTER

tOAADClimf >CD IMWlC&AnCM •NMIONAlin i«

TUASKMAOO UC*t irtCi*t«*tlON

TlNDALL 6 FOSTER

ATTORNEYS AT LAW

2BOI TEXAS COMMtltCC TOWER

HOUSTON TEXAS 77002-3094

ntlfHOM l/l]l M9-R711

ruU'ONt* .'in ,V» iJOi

STATEMENT OF

CHARLES C. FOSTER

before the

SUBCOMMITTEE ON IMMIGRATION, REFUGEES & INTERNATIONAL LAW

COMMITTEE ON THE JUDICIARY

UNITED STATES HOUSE OF REPRESENTATIVES

CONCERNING

THE IMMIGRATION REFORM t CONTROL ACT OF 1986

AUGUST 23, 1988

TRINITY UNIVERSITY

SAN ANTONIO, TEXAS
59

INTRODUCTION

Mr. Chairman and distinguished Members of the Subcommittee:

I am pleased to have the opportunity today to testify before

you. Although I am currently the Chairman of the Coordinating

Committee on Immigration of the American Bar Association and past

President of the American Immigration Lawyers Association, I am

testifying before you today as a private attorney who represents

a number of corporations and other employers who have been

impacted by the employer sanction provisions of the Immigration

Reform and Control Act of 1986.

Before I get to my concerns, I wish to first commend the

Chairman and the Committee for the many important reforms

contained in the Immigration Reform and Control Act of 1986 and

to recognize the difficulty in enacting any legislation to deal

with the issues of unauthorized employment in the United States

and finding any solution that would satisfy the various groups

and individuals in the United States involved in immigration

issues. I recognize that the Committee and its staff have spent

many hours not only in enacting the legislation initially, but

also now in considering its impact on the United States and on

our employers and workers. Also, 1 particularly want to commend

the Committee for holding hearings in the Southwest, an area

which is particularly impacted by the legislation.

I will address two primary areas of possible abuse involving

misuse of harboring charges and the subpoena power. I emphasize

the word "possible" since I am not here to say that there has

been widespread abuse in these areas. As of June 1, 1988,

employers were, for the first time, subject to civil and even

possibly criminal proceedings for a "pattern or practice"

violation without first receiving a warning citation under the

employer sanction provisions of the Immigration Reform and

Control Act of 1986. Therefore, it is important that problems in

enforcement vis-a-vis employers be highlighted at this time in

order to avoid the possibility that the Service itself develops a

pattern of enforcement that is not provided for in the Act and

that is possibly abusive to employers.

In addition to the two primary issues, I also wish to

address several other items, including the following: Based upon

my contacts with large numbers of employers as well as

practitioners, I have been impressed by the overwhelming spirit

of cooperation on the part of all employers. In fact, I have not

encountered any employer aware of the law who has not been

prepared to fully comply with the law. For the most part, these

employers have been able to institute compliance programs without

too much difficulty.

Nevertheless, there are still a large number of employers

who are not fully aware of the fact that this law applies to all

employers rather than those employers who hire aliens.
60

Therefore, although the Service has indicated that it is not

interested in paperwork violations, it appears that the

Immigration Service is prepared to issue a Notice of Intent to

Fine to employers prior to any educational visit to employers

who have simply overlooked the new legal requirement that all of

their employees since November 6, 1986, be verified. A minimum

fine of $100 to a maximum fine of $1,000 per failure to verify

can represent a substantial monetary penalty for employers. It

is not too unusual for even small employers with a large turnover

of employees to face substantial civil penalties simply for

failure to verify, .without having had any prior notice as to the

change of the law other than the possible receipt of the Handbook

for Employers (Form M-274). While, obviously, the Handbook for

Employers published by the INS, clearly states their obligation

to verify the status of all employees, I submit that many

employers, noting that it was a publication of the Immigration

Service, may have simply discarded same out of habit. I have

even spoken to a number of legal groups, involving nonimmigration law practitioners where a number of lawyers present

expressed surprise when they learned that the law applied even to

their own law offices.

Another issue of concern for employers is where there is a

proven shortage of U.S. workers. Often the employer faces a

"Catch 22" since there may not be a viable way in which the

employer can obtain work authorization for an employee even where

the employer has proven that he is unable to find a single

qualified individual. I recall that, in prior testimony, if my

recollection is correct, the Chairman of the Subcommittee voiced

an opinion that, if the employer had received labor

certification, i.e., the Department of Labor had certified that

for a particular position there was a proven shortage of U.S.

workers and that a particular alien was qualified, there should

be some method by which the employer could obtain interim work

authorization for the alien or be able to satisfy the

verification requirements by some alternative method. There are

many situations where employers have proven the shortages of U.S.

workers and have obtained labor certification for nongrandfathered employees and, yet, are subject to being fined if

they keep them in their employ. An example would be nurses or

key technical employees.

Now, I wish to turn my attention to the two major issues

referred to above.

THREATS QF CRIMINAL INDICTMENT

Harboring an alien has loomed as a more likely prosecution

since the Immigration Reform and Control Act of 1986 (IRCA)

repealed the "Texas proviso." Under pre-IRCA law, this section

provided that "employment (including the usual and normal

practices incident to employment) shall not be deemed to

constitute harboring" as that term was used in 8 U.S.C.
61

Sec. 1324. The amendments contained in Section 112 of 1RCA which

eliminate the "Texas proviso" appear not to benefit from any

grandfather clause. Although, the proposed Senate version of the

IRCA would have simply tightened the language of the then

existing statute, adding the words "by itself" to qualify the

"Texas proviso," the final language of the IRCA eliminates the

"Texas proviso" altogether. This amendment could overshadow the

sanction provisions of IRCA. Rather than pursue the civil

penalties available under Section 274A, the Service could

arguably elect to pursue a "harboring charge" under the expanded

provisions of 8 U.S.C. Sec. 1324.

The pursuit of such a harboring charge is inconsistent with

the implicit intent of the IRCA that criminal prosecutions under

the Act would only be available in cases displaying a "pattern or

practice" violation pursuant to new INA Sec. 274A(f). The

legislative history suggests that substantially more than mere

employment, perhaps conduct showing an intent to avoid

apprehension or to frustrate detection of an illegally employed

alien, should be a requirement of a harboring violation. In

fact, a former acting General Counsel of the INS, Paul Schmidt,

also testified before this Committee that it was the Service's

understanding that it was not the intent of Congress for the INS

to charge employers for harboring when the employer had only

hired an unauthorized alien. Furthermore, in its comments to

both the proposed and final employer sanction regulations, the

Service itself concluded that "employment of illegal aliens in

and of itself does not constitute harboring under section 274(a)

of the Act as amended." For some reason, however, the INS did

not specifically provide for same in the body of the regulations.

Despite the fact that employment, by itself, of an illegal

alien should not constitute the felony of harboring, a few recent

events give cause for concern. While these unfortunate incidents

may not be numerous, they do suggest the possibility of future

abuse. For example, this past May, acting on an anonymous "tip,"

three INS agents, without the benefit of a search warrant, went

to a fast-food restaurant in northern Virginia. Approaching the

manager at the counter, the agents informed him that they wanted

to interrogate employees working in the private areas of the

restaurant regarding their immigration status. In keeping with

company policy, the manager asked to be shown the search warrant.

During this interchange, one employee at the counter asked two

other employees who were also present if they had proper papers.

One of the special agents spoke Spanish and immediately demanded

the right to interrogate these three employees. The agent

commenced to ask several questions in Spanish, while the manager,

who did not speak the language, was concerned that this incident

was disrupting business. In order to restore a semblance of

order, the manager took the two employees involved behind a

machine used to make french fries for customers. The aim,

obviously, was to halt the interrogation rather than to harbor

the employees or prevent their detection.

8Q-730 - 89
62

The special agents left the fast-food restaurant but

established a surveillance around it for the next six hours.

During this time, they obtained a criminal search warrant from a

United States magistrate, relying, in part, on a harboring

charge. Wanting to avoid a raid, the employer offered to have

individual employees, one at a time, made available for

interviews in the public area of the restaurant. Having

committed themselves to obtaining a criminal search warrant, the

special agents categorically rejected this offer and would not

even discuss the matter with the company's attorney. When the

agents returned with the criminal search warrant which failed to

identify any undocumented workers by name, they refused to permit

the attorney to read or examine it on the grounds that no entry

of Notice of Appearance of Attorney on Form 6-28 was on file at

the INS District Office in Arlington, Virginia. INS agents

rushed into the private areas of the store and leaped over the

counter in order to arrest employees who appeared to be Hispanic.

Certain employees, who did not resist arrest, were slightly

injured when they were thrown to the floor. The company attorney

was pushed and shoved by INS agents who threatened him with

arrest merely because he insisted on examining the warrant.

One week after the raid, the local United States Attorney

informed the fast-food restaurant, "through counsel, that it was

the target of a criminal investigation based, in part, on the

harboring statute. While the U.S. Attorney has not yet attempted

to have a grand jury return a Bill of Indictment, this remains a

possibility. The proposed Indictment, which has been shown to

the fast-food restaurant, does not, rather surprisingly, contain

any harboring counts. Rather, it seems that the allegations of

harboring were primarily a device to persuade the United States

magistrate to issue the criminal search warrant.

UTILIZATION OF CRIMINAL PROCESS FOR DEPOSITIONS

In addition to this most disturbing incident, at a recent

speech in San Diego, Walter Cadman, formerly Associate

Commissioner for Investigations and soon to be the INS District

Director in Baltimore, expressed the view that, under Rule 15 of

the Federal Rules of Criminal Procedure, the Service could depose

aliens in custody so that this could be used in criminal trials

under the IRCA after the government had moved to deport the

deponents. Of course. Rule 15 only allows such depositions to be

used where the witness is unavailable and where "exceptional

circumstances" exist.

In those cases where it is has gone ahead, the deposition is

either taken at a detention facility or at the INS District

Office by the same agents who arrested the alien. These

videotaped depositions have, on occasion, been taken without the

benefit of the employer's counsel being present. Moreover, since

the special agents who arrested the aliens are the same persons

who controlled the videotaping, the accuracy and reliability of
such videotaping is clearly open to question. In United States

v. Guadian-Salazar. 824 F.2d 344 (5th Cir. 1987), the

government's presentation of its case against the employer was

found to violate the defendant's constitutional right to confront

adverse witnesses, guaranteed by the Sixth Amendment, thereby

depriving him of due process of law under the Fifth Amendment to

the United States Constitution. In addition, the Fifth Circuit

found that the government had failed to establish the

unavailability of the witnesses and, in fact, had virtually

assured their absence by releasing them at the Mexican border,

providing them with ambiguous instructions, and failing to

provide them with the financial resources to return to the United

States to testify. In addition, the taking of the videotaped

depositions also violated Rule 15 because no "exceptional

circumstances" were demonstrated to justify this process. In

fact, at trial, the government agreed that the depositions

weren't admissible and noted the absence of "exceptional

circumstances" deficient under Rule 15 to justify deposing the

witnesses.

Recently, the United States Attorney for the Northern

District of Virginia conducted Rule 15 depositions in an

atmosphere, and for a purpose, that can only charitably be

described as "irregular." Armed with a criminal search warrant,

Special INS Agents showed up at the Arlington, Virginia corporate

offices of a landscaping company at 7:00 A.M. whereupon they

seized only those employees with Hispanic appearances. Some of

the employees seized had attorney-certified copies of SAW

applications that had already been filed. In addition to seizing

virtually all company financial records, thus making it

impossible for the company to meet its next payroll with any

degree of accuracy, the INS also seized files from the company's

attorney which had been placed there in anticipation of a meeting

that afternoon that was designed to review SAW applications that

would soon be filed on behalf of company employees. While the

attorney was able to go into Federal District Court on the

following Monday and successfully secure the return of her files,

which were clearly within the work-product privilege, the U.S.

Attorney asked the court to reconsider its Order and alleged a

criminal conspiracy, by both the employer and its counsel to

defraud the U.S. Government by the filing of bogus SAW

applications. This was denied. Undaunted, two days later, the

office of the U.S. Attorney served Rule 15 Notices of Deposition

for that Friday on both the employer and its attorney. The

deponents were all nationals of Mexico and El Salvador who were

given the choice of either spending several months in jail or, if

they agreed to the deposition, being let out on their own

recognizance and given 30 days employment authorization. The

Notice of Deposition alleged three possible areas of inquiry:

(1) SAW fraud; (2) a pattern and practice of IRCA violationsdespite the fact that there had been no Notice of Intent to Fine

nor any violation ever found; and (3) harboring. The aliens did

not realize they had the right to go before an immigration judge

and, for at least some of them, believed that the deposition was
their deportation hearing. The Assistant U.S. Attorney who

wanted to videotape the depositions attempted to have the same

special agent who conducted the raid also operate the videotape

machine. Twelve hours of deposition testimony produced

absolutely no evidence of harboring nor was their any explanation

why the government had entirely neglected to serve a Notice of

Intent to Fine.

RELATED PROBLEMS WITH SEIZURE OF VEHICLES

Another possible area of abuse is the seizure and forfeiture

of employers' vehicles used merely in normal transportation of an

employee as an incident of employment. Section 274(b) of the INA

gives the Service the authority to seize any vessel, vehicle or

aircraft used in furtherance of an unlawful entry. Once the

illegal alien has already entered, the law does not sanction the

confiscation of such vehicles, which are often basic to an

employer's livelihood. Yet, it is not at all uncommon in Texas,

particularly in the Rio Grande Valley and the greater San Antonio

area, for small and medium-sized landscaping, lawn maintenance

and construction companies to have their trucks seized when the

employer has done nothing more than transport workers to the job

site.

PROBLEMS WITH USE OF SUBPOENA POWER

The Immigration Reform and Control Act prohibits unlawful

employment of aliens in the United States and imposes record

keeping requirements on employers, recruiters and referrers for a

fee. The Act also provides the Immigration and Naturalization

Service with investigation authority to ensure compliance with

these prohibitions and requirements.

As part of its enforcement activities, INS investigators

issue administrative subpoenas pursuant to the general

investigation authority granted to the INS. Such subpoenas are

issued to compel the attendance and testimony of witnesses and

the production of employment documents prior to issuing a charge

or complaint. Evidence obtained is used to bring charges against

employers not in compliance with the law.

Congress has given the INS a specific statutory mandate to

investigate complaints of IRCA employment-related violations.

However, the INS authority to conduct investigations under the

pertinent subsection of the Immigration and Nationality Act does

not include subpoena authority. Only an Administrative Law Judge

is empowered to issue a subpoena to compel the attendance and

testimony of witnesses and the production of documents in

furtherance of an investigation under the subsection of the Act

dealing with employer prohibitions and requirements compliance.
65

The assertion of authority by the INS to issue subpoenas in

an investigation of this nature is a violation of the express

statutory language and has the effect of exposing the employers

to burdensome requests for information prior to the issuance of a

charge or a complaint. While agencies generally may have

authority to issue a subpoena in connection with an investigation

prior to the issuance of a complaint, such authority derives from

and is limited by specific statutory language.

By ignoring the statutory limitations on the subpoena

authority granted by Congress when conducting IRCA employer

compliance investigations, the INS is frustrating the protections

built into the investigation provisions. Congress did not leave

the INS without investigation and enforcement tools by not

granting it authority to issue subpoenas on its own initiative.

The INS must simply apply to an Administrative Law Judge to

obtain a subpoena.

This administrative-judicial review of the subpoena request

does not reduce the ability of the INS to conduct thorough

investigations. Furthermore, review of a request for a subpoena

by an Administrative Law Judge will ensure that there are grounds

to justify use of this investigation tool and that a subpoena is

not issued merely to conduct a fishing expedition. Finally, the

review of the subpoena request by INS enforcement personnel will

generate a more favorable reception from those businesses

requested to comply with a subpoena.

CONCLUSION

Again, while I have emphasized possible technical problems

in the area of employer sanctions, I want to reiterate my belief

that overall the legislation is having the intended effect.

Employers are refraining from hiring individuals without proper

immigration status, and aliens in the United States, who have

either come illegally or have overstayed, by and large are

encountering greater difficulty in obtaining employment. It

appears that the utilization of false documentation, at least to

my knowledge, is not significant, although as time goes on the

utilization of false Social Security cards would appear to be an

obvious area of abuse.

Thank you again for providing me this opportunity to share

my views with you. I am prepared to answer any questions you may

have regarding the foregoing.

Thank you.
HAJUIY L TlNOALL*

CHAKLII C. FotTta**

rATBICK W DUOAN"

KiNNim I-.MII lUi.sii

LTDIA a TAHIZ

jANtCI K. FAKOUK

GAKV i. EN OILMAN

TINDALL & FOSTER

ATTORNEYS AT LAW

mill (UAI COHMIICI IOWIA

HOUSTON, TEXAS 77002 1O04

(TIM •»••»»»»

CA»LI Ut V11A

CHARLES C. FOSTER

PERSONAL DATA

Charles C. Foster Is a partner in the Houston lau firm of

Tindall & Foster, specializing in U. S. immigration law. He is

Board Certified in Immigration and Nationality Lau by the Supreme

Court of Texas and he is a graduate of the University of Texas

School of Law, where he served as President of the International

Law Society. He was a recipient of a Rotary International

Fellowship, under which he studied International Law at the

Unlversidad de Concepcion in Chile.

Active in Bar activities, Mr. Foster has served as National

President of the American Immigration Lawyers Association and

currently serves as Chairman of the Coordinating Committee on

Immigration Law for the American Bar Association. He currently

serves on the Houston Bar Association Immigration Amnesty Task

Force Committee and has served as Chairman of the Committee on

Immigration Law. He is Chairman of the State Bar Advisory

Committee on Immigration and Nationality Law to the Board of

Legal Specialization.

In addition to the foregoing. Mr. Foster is Adjunct

Professor of Immigration Law at the Universi ty of Houston Law

School, and served as Chairman of Covernor White's Task Force on

Immigration Reform. He presently serves on the I mm igrat i on

Ministry Advisory Board of the Calveston-Houston Diocese, and

lectures and writes frequently on the topic of U. S. immigration

law reform.
67

Mr. MAZZOLI. Yes. About where we are. Charlie, thank you very

much. Mr. Montemayor?

TESTIMONY OF RUBEN MONTEMAYOR, ESQ., SAN ANTONIO,

TEXAS

Mr. MONTEMAYOR. Chairman Mazzoli, it is an honor to have you

in Texas, especially in San Antonio, still trying to get some fair immigration laws in the books. Congressman John Bryant, thank God

we have got a Texan in the committee.

The big problem facing the alien in this part of the United

States, especially Texas, California, New Mexico, and Arizona, as a

result of IRCA is extreme hardship and disruption of family unity.

The law itself, legalization, is good. It was a wonderful thing for

some people. However, the new law has made it a complete bar to

legalization if a person has been formally deported from the United

States, irrespective of family unity, humanitarian reasons, or extreme hardship, if he was deported after 1982.

And in most of these cases, he was deported because he was told

to leave, and he didn't leave, and they deported him. It is not because of any criminal activity behind the deportation order.

Every day, legalization applications are being denied because an

alien has had a formal deportation and been deported. I do not believe that Congress intended for these families to suffer this extreme hardship and division of family unity.

Under the Immigration and Nationality Act, which I will refer to

as the old law, there is a pardon of permit to reapply after deportation called the 1-212. This 1-212 waiver pardons the alien who has

previously been deported. It still does that prior to 1982. It forgives

excludibility, and also forgives criminal activity.

And I urge the committee and the Congress that it should also

obviate legal consequences of such departure for purposes of meeting the continuous legal residence requirement for legalization.

How the Immigration Service knocked that through the Congress, I

will never know.

The Attorney General has wide discretion and wide powers to

grant the 1-212 waivers, and it applies to almost everything under

IRCA. However, if you were deported officially, then you break the

continuity of your continuous residence, and you are gone. This is

exactly what has happened in this case.

Many aliens and their families will suffer extreme hardship if

the deportation requirement is allowed to stand. In most cases, the

husband is the alien who receives the formal deportation; the wife

and the children qualify for legalization and temporary residence.

They will suffer extreme hardship if the head of the household's

legalization application is denied because of the deportation. This is

a real big and serious problem. I do not believe that the intention

of Congress was to create extreme hardship to these families because of an order of deportation. I do not believe that Congress was

given the correct information.

If the Unification Act passes•and I understand that it is still

not dead yet•what is going to happen to the husband that was

denied legalization because of an order of deportation, and his wife

and children all qualify for legal residence? Is the Attorney Gener-
68

al going to look at that and grant the waiver, or is he going to be

allowed to file a waiver? What is going to happen to this family?

My recommendation is that the Immigration Reform and Control

Act be amended to delete that section that bars legalization because of an order of deportation, and allow those aliens that have

been officially deported to qualify for legalization if they meet all

other requirements.

I also recommend and urge that the Unification Act•and I don't

know what the status is right now•and if it is passed, that family

unity•extreme hardship, and for humanitarian reasons, or if only

for the reason that the family members have received their temporary residence visas, I believe that the husband that has been

denied should be granted.

A deportation order lacking due process of law pursuant to an

order of deportation should not be a bar to legalization under the

Immigration Reform and Control Act of 1986. In other words, if a

person gets voluntary departure, does not depart; six months later,

the Immigration picks him up, without a hearing, officially deports

him to Mexico, there is the lack of due process, in my opinion.

A deportation of an alien pursuant to an order of deportation

should not be a bar to legalization under the Unification Act, if it

passes. An alien can be pardoned by a grant of an 1-212 waiver if

he was deported before 1982, but an alien who was deported after

1982 cannot be pardoned. If this is not flagrant discrimination by

the Immigration Service, I don't know what it is. I really cant

comprehend the difference there.

I do not believe that Congress, in its infinite wisdom, intended

this to be the case. I do not believe that Congress intended a voluntary departure order to become a deportation without a fully protected due process hearing after the grant of voluntary departure.

I realize that the task of solving the problems at hand concerning deportation and family unity are difficult. I am convinced that

all of the members of the committee can exhibit the same courage

and intestinal fortitude as Congressman Bryant did when he

jumped on two Federal judges on national television for taking a

position foreign to reason and constitutional law.

And Congressman Bryant, you and your committee could do a

tremendous service to thousands of aliens and their families who

are experiencing extreme hardship as a result of the present Immigration Reform and Control Act. Remove the bar. I know that the

Hispanic Caucus will share my view in this respect.

And Chairman Mazzoli, if you would only know how much admiration people have for you, you would be surprised all over this

part of the United States. In my personal opinion, you are the

author of the Simpson-Mazzoli bill that gave rise to the Immigration Reform and Control Act of 1986.

For the treacherous months that you labored in preparing and

passing this law, you have helped thousands of people, are we are

forever grateful. You have left your mark in history. And you are

still here trying to get a fair immigration law, and I admire you for

that.

And I will direct this to you, Congressman Mazzoli. I keep telling

my clients and my colleagues and trying to correct them on your

name. And I keep correcting them, and I know you are known by
Ron Mazzoli, and they don't believe me. They think your name is

Simpson Mazzoli.

[The prepared statement of Mr. Montemayor follows:]
70

TO: CHAIRMAN, CONGRESSMAN JOHN BRYANT

TO: CONGRESSMAN RON MAZZOLI

AND

MEMBERS OF THE SUBCOMMITTEE

A*****************

TESTIMONY BEFORE THE

UNITED STATES IMMIGRATION SUBCOMMITTEE HEARING ON

IMMIGRATION REFORM AND CONTROL ACT OF 1986

BY

RUBEN MONTEMAYOR

AUGUST 23, 1988
PERSONAL:

71

RUBEN MONTEMAYOR

ATTORNEY AT LAW

900 Vance Jackson Road

San Antonio, Texas 78201

(512) 736-6523

Birthplace:

Birthdate:

Marital Status:

Chi ldren:

Pleasanton, Texas

March 21, 1929

Married

Zina Montemayo>- (11/14/52)

Ruben Montemayor, Jr. (05/29/59)

Carlos Jose Montemayor (02/19/63)

Ian Montemayor (08/21/65)

EDUCATION: Graduate of San Diego High School -1947

University of Texas at Austin -1953-1955

Graduate of St. Mary's University -1955-1956

Graduate of St. Mary's School of Law -1956-1960

Licensed to practice law -1960

Board Certified in Immigration Law -1979

EMPLOYMENT:

"1950-1952 United States Army

1958-1960 District Attorney of Bexar County,

Texas (Investigator)

1960-1961 Assistant Criminal District Attorney

Bexar County, Texas

1961-1968 General Attorney, U.S. Department of

Just ice

1969-present General Practice of Law

AWARDS, APPOINTMENTS:

Appointed to Texas Board of Corrections by Governor

Dolph Briscoe

Appointed as Small Business Administrator by Vernon

Weaver

Member, National Advisory Council of Small Business

Adminlstration

President of Mexican-American Business and

Professional Association

Former Chairman, Ethics Committee for City of San

Anton io
72

SUMMARY OF.TESTIMONY BEFORE THE UNJTED STATES

IMMIGRATION SUBCOMMITTEE HEARING ON Tggg OF gggg

AS PRESENTED BY ROBIN. HONTEHAYOR

The primary problem facing Aliens as a result of IRCA

1s extreme hardship and disruption of family unity. The.

provision making it a complete bar to legalization if a person

has been formally deported has cast extreme hardship and has

divided family unity. Hence, arr alien who meets all the

requirements for legalization but for the fact that he was

deported should be allowed to file a waiver 1-212 or a "Waiver"

of excludabi 1 ity to avoid the adverse consequences mentioned

herein. This, of course, is what the law allowed under the

Immigration and Nationality Act.

If the Unification Act passes, further problems will

surface--for example, what will happen to a husband who was

denied Legalization because of an order of Deportation, whereas

the wife and family all qualify for temporary residence? I do

not believe that Congress intended such harsh results.

I recommend that IRCA be amended by deleting th.e

section barring legalization due to prior deportation, and

rather allow such aliens to qualify for legalization if they

meet all other requirements. Further, I urge that the

Unification Act be passed. Also, that the 1-212 waiver be

available to those aliens deported after January 1, 1982, so as

to avoid flagrant discrimination. Finally, that Congress

require that a voluntary departure order not connote to a

•deportation" without a fully protected due process hearing

after such grant of voluntary departure.
73

Mr. Chairman, Congressman John Bryant, Congressman

Mazzoll, Members of Congress, Members of the Committee. Thank

you for Inviting me to testify before this Committee. My name

1s Ruben Montemayor. I am an attorney, Board Certified

Immigration Law Specialist. I have been involved in

Immigration work since 1961 when I went to work for the

Immigration and Naturalization Service in San Antonio as a

General Attorney, known as Naturalization Examiner - this has^

been over 25 years. I have been practicing since 1969.

I.

The Big Problem facing the alien in this part of the

United States especially Texas, California, New Mexico and

Arizona, as a result of the Immigration Reform and Control Act

of 1986 is Extreme Hardship and Disruption of family unity.

II.

The New Law has made it a complete Bar to

Legalization if a person has been formally deported from the

United States irrespective of Family Unity, humanitarian

reasons or extreme hardship. Every day Legalization

applications are being denied because an alien has had a

formal order of deportation and has been deported. I do not

believe that Congress Intended for these families to suffer

this extreme hardship and division of family unity.

III.

Under the Immigration and Nationality Act the (old

law) there is a Pardon or Permit to reapply after deportation

I-212. The 1-212 waiver pardons the alien who has previously

(1)
74

been deported. It forgives excludabl11ty under Sec. 212 a

(17) and forgives criminal activity under Sec. 276.

IV.

It should also obviate legal consequences of such

departure for purposes of meeting the continuous residence

requirement for Legalization.

*. V.

The retroactive grant of an 1-212 "Waiver" of a

prior deportation has long been available on a nun pro tune

basis in situations such as an adjustment of status

application under INA sec. 245, where the grant of a waiver

would completely dispose all bars to admissabi1ity. An alien

who meets all of the requirements for legalization but for the

fact that he or she departed under an order of deportation,

should be allowed to file a waiver 1-212 or a "Waiver" of

exc 1 udabi11ty because such denial of his legalization

application would result in extreme hardship?

The deportation provision itself should be

eliminated.

VI.

The Attorney General exercises broad power In

approving an 1-212 waiver; an alien can escape prosecution for

a felony under INA sec. 276 by obtaining a nun pro tune waiver

applicable retroactively to the felonous conduct. This broad

authority should arguably be extended to the much less

significant civil consequences of deportabi1Ity resulting in

(2)
75

Inellglbtllty for Legalization.

VII.

As It stands now the deported aliens' only

alternative Is to collectively attack the deportation order -

End up In Federal Court.

VIII.

Now the consequences of a deportation which occurred

before January 1, 1982, may be overcome by one form of

amelioration available to negate actual or potential

inadmlssabl 1 Ity under INA 212 (a) (17). An alien can apply

for "Permission to Reapply for Admission to the United States

after deportation, removal or departure at government expense"

pursuant to 8 CFR 212.2.

IX.

Sec. 212 of the INA sets forth 33 grounds of

exc1udabi1ity which defines various classes of aliens

ineligible to receive visas to enter the United States. Most,

but not all, of this ground of exc1udabi11ty apply to

applicants for temporary residence status or after 1982

entrants (amnesty), many of the grounds of exc 1 udab i 1 1ty can

be waived for humanitarian purposes, to assure family unity or

when it is otherwise in the public interest. The standard

governing this waiver differs favorably in comparison to the

standard generally applied in adjudicating requests for waiver

of same grounds of exc1udabi1ity under other provisions

applicable to applicants for immigrant or non Immigrant

status.

(3)
76

x.

Now under Sec. 211 of the INA requires the following

inadmissabi1ity normally applicable to aliens seeking entry

either as Immigrants or non Immigrants are automatically

waived in Legalization cases under INA sec. 245 A (d) (2)

(A).

XI.

Inadmisslbility can be overcome by a waiver

applicable to qualifying under INA Sec. 245 (d) (2) (B) which

provides The Attorney General may waive any other provision

of Section 212 (A) in the case of individual aliens for

humanitarian purposes to assure family unity, or when it 1s

otherwise In the public Interest.

XII.

INA Sec. 212 (a) (16) and (17) precludes the

admission of those aliens who have been excluded within the

prior year, have been deported, within the 5 previous years, if

such alien have not obtained the permission of the Attorney

General to re-enter the United States.

XIII.

Any alien excluded or deported can obtain the

permission of t.ie Attorney General pursuant to 8 CFR 212.2.

However, this Is no longer necessary In the case of (pre 1982

Amnesty applicants) as the grounds may be overcome by the more

generous humanitarian waiver of INA sec. 245 (d) (c) (b). In

the case of the Legalization applicant, the main adverse

(4)
77

Impact of prior actual or self deportation will be that as to

those deportations which occurred after January 1, 1982; he or

she will be unable to establish continuous residence, in some

situations, the deported alien may not even realize that his

or her departure was subject to a final order of deportation

and that re-entry may not only have broken continuous

residence, but was itself a violation of law amounting to a

felony.

XIV.

Many aliens and their families will suffer extreme

hardship if the deportation requirement Is allowed to stand.

In most cases the husband is the alien who receives an actual

deportation and the family who has resided in the United

States prior to 1982 all qualify for Legalization and have

more than likely received their Temporary residence card -

Will suffer extreme hardship if the head of the household

Legalization application is denied because he was deported -

This is the Big Problem.

XV.

The only alternative to the Denial of Legalization

is to attack the deportation. Collateral attack Is the only

remedy available to this alien.

XVI.

Enclosed please find an Immigration Court order

granting voluntary departure to an alien "John Doe". If he

failed to depart voluntarily then, a certified letter called a

(5)
78

"bag and baggage," is mailed to him advising him of his

deportation. This letter is sent subsequent to the date he

falls to appear or depart. He 1s picked up by the Immigration

and Naturalization Service officers at his home and deported

without further hearing in violation of due process of law -

They call this an official deportation. Enclosed also find a

denial of the Legalization application because the alien wa-:

deported from the United States in this manner.

TVTT.

This is what is happening to every alien that was

deported pursuant to an order of deportation.

XVIII.

The Attorney General under the New Law waives any

provision of section 212 (a) except a few narcotics, etc...,

for humanitarian purposes to assure family unity, or when it

is otherwise in the public interest.

XIX.

In every case, that has come before the Legalization

Centers, the aliens application for temporary residence Is

denied because he was deported - and the continuance residence

after January 1, 1982, has been interrupted .because of the

deportation. This has created extreme hardships and is

dividing the family.

XX.

In this part of the country, orders of deportation

are issued like confetti on any New Year's Eve. I'm not

(6)
79

talking about Texas alone, but California, New Mexico and

Arizona.

XXI.

I do not believe that the intention of Congress was

to create extreme hardship to these families because of an

order of deportation - I do not believe that Congress was

given the correct information - If the Unification Act

passes what is going to happen to the husband that was denied

Legalization because of an order of deportation, and his wife

and family all qualified for Temporary Residence. Hill the

Congress allow him to stay because of family unity; will the

husband be granted a Waiver by the Attorney General - what

about the whole family that was issued an order of deportation

and denied Legalization, are they going to be able to ask for

a Waiver because of humanitarian reasons?

XXII.

My recommendation is that the Immigration Reform and

Control Act be amended and delete that section that bars

legalization because of an order of deportation and allow

those aliens that have been officially deported to qualify for

Legalization if they meet all other requirements.

XXIII.

I also recommend and urge that the Unification Act

be passed because of Family Unity, Extreme Hardship and for

humanitarian reasons or if other family members have received

temporary residence.

(7)
80

XXIV.

A deportation order lacking due process of an alien

pursuant to an order of deportation should not be a bar to

Legalization under the Immigration Reform and Control Act of

1986.

XXV.

That a deportation of an alien, pursuant to an order

of deportation should not be a bar to Legalization under the

Unification Act that is before the Congress.

XXVI.

An alien can be pardoned by a grant of an 1-212

waiver if he was deported before January 1, 1982... But an

alien who was deported after January 1, 1982, cannot be

pardoned .

If this is not flagrant discrimination by the

Immigration Service, I do not know what is. I do not believe

that Congress in Its infinite wisdom Intended this to be the

case.

XXVII.

I do not believe that Congress intended a voluntary

departure order to become a "deportation" without a fully

protected due process hearing after the grant of voluntary

departure.

XXVIII.

I realize that the task of solving the problems at

hand concerning deportation and family unity are difficult. I

(8)
81

am convinced that all of the members of the Committee can

exhibit the same courage and intestinal fortitude as

Congressman Bryant did when he jumped on two Federal Judges on

national television for taking a position foreign to reason

and constitutional law.

c

Congressman Bryant:

You could do a tremendous service to thousands of

aliens and their families who are experiencing extreme

hardship as a result of the present Immigration Reform and

Control Act. Remove the BAR. I know that the Hispanic Caucus

will share my view In this respect - and if they don't, call

•e.

Congressman Mazzoli:

In my personal opinion you are the author of the

Simpson-Mazzoli Bill- that gave rise to the Immigration

Reform and Control Act of 1986.

For the treacherous months that you labored in

preparing and passing this law, you have helped thousands of

people and we are forever grateful. You have left your mark

in history.

(9)
82

Mr. MAZZOLI. Simpson Mazzoli? You know, I tell you what, that

is what other people say. The truth is, you know, through those six

years when we fought that fight, that there really were letters that

came in to Congressman Simpson Mazzoli, as if my first name were

Simpson. But I appreciate that, Mr. Montemayor. You are a good

man for saying those nice things.

Let me yield myself five minutes to start out. These are very,

very interesting statements. And this is exactly what we were driving at, trying to get some statements from the people on the

ground, you know, who deal with this day to day, to help us.

Charlie, or both Nancy and Charlie, I would like to ask you,

about these 1-9 forms. I can understand that a lot of employers, including some of our brethren of the bar, think that it doesn't apply

to them, are confused by the wording, and, in effect, wind up without having the proper kind of verification documents.

Is it your understanding that people, companies, individual employers, have in fact had notices of intent to fine issued to them

strictly for failure of what we would call paperwork, or the failure

of verification, exclusive of any additional problems with hiring?

Can you help me there?

Mr. FOSTER. When you use paperwork violation, just simply failure to realize that they were required to complete a verification,

the verification•yes.

Mr. MAZZOLI. That is right. In other words, separate and apart

from who is out in the back shop; just whether or not, in the front

shop in the desk, they have kept what they should keep.

Mr. FOSTER. Yes. I know of several instances. Again, I cannot say

that it is widespread, but at least in one instance that was of particular concern to me, the employer had procrastinated in completing the I-9s. And it was what we would call a small employer, with

about 20 employees, but it had not yet assigned the task of completing the verifications.

And yet, even though they were a small employer, they had had

a substantial turnover of employees. So when we looked at their

records were, to see what the possible exposure was, they had approximately 60 individuals that had come through their operation.

So they were

Mr. MAZZOLI. Since June of 1987?

Mr. FOSTER. Exactly. And so they were faced, or are faced, with a

possible $60,000 fine. Now, in that particular case, INS has simply

said they are going to issue a notice of intent to fine. The INS investigation has not stated what the level of fine would be. And the

fine that would be simply for failure to verify.

Mr. MAZZOLI. OK. Ms. Shivers, would you have•we have a very

famous family at home called Stivers in Kentucky, and I apologize•but Ms. Shivers, would you have any help on that, anything

you can document?

Ms. SHIVERS. Well, I have specific examples that I could bring. I

know of two where the Immigration Service went out looking for

someone who they thought worked there illegally, and they were

not there, and since they were there, they decided they might as

well ask for I-9s, and there were no I-9s, and those people have

received notices of intent to fine, and admittedly like a $250 level

or something, a slap on the wrist.
83

Mr. MAZZOLI. But I think we have some confusion here. I understand that the Immigration Service has some kind of a policy, or a

general guideline, which says that they are going to couple violations of the hiring part with the violations of 1-9. So, in effect, if

you haven't illegally hired somebody, they are not going to worry

about whether or not you have kept paperwork.

Now, of course, the law says that everybody should verify every

employee, even if that employee is your father, your wife, your son,

your daughter, despite the fact that you have lived with that individual the entire length of their years; and you still have to verify

if they are an American citizen, or if they are qualified to work,

and who they are.

And yet the Immigration Service seems to be looking away from

that to try to couple these things. And then at the other time,

there apparently are some evidences that they are not coupling

after all.

So I think that there is a clear confusion here•either they are

going to verify everybody, or they are going to couple, if that is permissible. I am not sure it is permissible legally for them to make

that judgment•but one way or the other, that is the message that

goes out through the lawyers who advise their clients. But when

you don't know what the Immigration Service is looking for, it is

hard for you to give advice to your clients.

One thing, Mr. Foster, if would help me, you said one of the

cases had something to do with what looked to be like fraudulent

or hoked-up paperwork. Now, was that the cards or the material

that was on the person of the employees, or was it something that

the employer had retained in the file or photocopied for the file?

Mr. FOSTER. OK. In my previous testimony? Yes. That was a

"green card" on the employee. The employer had relied upon that,

and

Mr. MAZZOLI. Because the immigration officer felt that this

looked like it was not valid material, then they went back to the

employer and suggested, we are going to file a notice of intent to

fine because you should have seen that to be invalid?

Mr. FOSTER. NO. While, arguably, the INS could have said, it does

not appear reasonably genuine on the face, but they did not do

that. They simply came in, they looked, and they said, these employees do not have good "green cards," and we are going to get

back in touch with you, and, in effect, left the employer with the

impression that they were going to give a more formal type of

notice to the employer.

The employer did not terminate, and later the INS issued a

notice of intent to fine on the grounds that they continued to knowingly hire an individual that was illegally in the United States.

And the issue that I simply raised is the possibility of confusion.

Should the employer rely on a casual statement from the INS?

What if that is wrong, and they wrongfully terminate?

Mr. MAZZOLI. In effect, your client felt that it was unclear at

that point whether or not these people were here without valid documents, and that somebody was going to check it out more thoroughly and let them know, and then they could dismiss these

people?

Mr. FOSTER. Yes.
84

Mr. MAZZOLI. In the meantime, the INS just came back at them

by saying, as if they were

Mr. FOSTER. The INS simply came back and issued subsequently

a notice of intent to fine.

Ms. SHIVERS. Because the document they had, whether it was

a permanent resident card, you know. So

Mr. MAZZOLI. Well, it doesn't make any difference, because, of

course, the way we fashioned the law was intentionally not to

make an employer a documents expert. I mean, if it looked anywhere near reasonable on its face, you are supposed to be able, as

an employer, to accept that•you don't have to photocopy it, if you

don't want to, but to accept it•and then whatever the Immigration finds out with the individual employee is a separate matter.

That employee may be here illegally, and the Immigration Service may very well be able to bust that person. But it should not be

imputed back to the employer, where, in a sense here, it seemed to

have been.

Well, my time is expired. I will come back for a second round.

The gentleman from Texas is recognized.

Mr. BRYANT. Thank you, Mr. Chairman. I would like to thank all

three witnesses for what they brought to us today. It is exactly

what we asked for.

Mr. Montemayor, you pointed out the problem with the deportation orders that presumably are not based upon wrongdoing, but

just based upon the fact that they were here and they were deported, being utilized as a bar to legalization, and perhaps to other benefits.

That is interesting•I am sorry to admit I have not considered

that problem before. It has not come to my attention. I thought you

might want to elaborate a little bit on that.

Mr. MONTEMAYOR. Yes, sir. The Congress, in IRCA, gave several

possibilities of an alien being denied legalization if he had one

felony, three misdemeanors, things like that.

And the problem is that they are equating a deportation order

with a felony conviction. Actually, that is what they are doing. And

I think that is a little harsh, to deny legalization to a person that

received an order of deportation just because he didn't leave the

country. He could have had some U.S. citizen children in school, or

for various reasons.

And I don't believe that this harsh treatment should be left•in

other words, I believe that the Congress should do something about

this.

The other thing that I would like to point out is that whenever

an immigration judge issues an order•a voluntary departure and

gives them, let's say, six months to remain in this country, and

then they refuse to leave after the voluntary departure expires,

then the Immigration Service sends a bag-and-baggage letter telling these people that they are subject to official deportation, to

present themselves or leave the country.

And they come and present themselves, and that is an official deportation, and I do not believe that that should be•it is not harsh

enough to deny these people legalization. It is creating a big, big

problem.
86

Here in this part of the country, they issue orders of deportation

like confetti on New Year's Eve, you see. And this is the reason

that•now, I am not talking about orders of deportation based on

some criminal activity. No, no. If they otherwise qualify in any

other way, I believe that the Congress should delete the denial of

the legalization based on an order of deportation.

Now, they didn't list the deportation, as they do all the excludible offenses. But they injected it in the continuous residence, and

that breaks the continuous residence, and then there is not very

much you can do, because the Attorney General would not consider

waiving that.

And now, prior to 1982, you can file an 1-212 and you are pardoned for whatever you did, except narcotic cases, and you can get

your legal residence. After 1982, you cannot file a waiver for an

order of deportation, because it breaks the continuity. And this is

creating a big, big serious problem.

Mr. BRYANT. Thank you for bringing that forward. It is not something I had given thought to before.

Mr. MONTEMAYOR. In this part of the country, Congressman

Bryant, since you are from Texas, you will find that there are thousands of people that have run into that problem.

The other big problem is that what the people are doing, the legalization people are doing, they are denying the legalization applications and giving these people 30 days to file an appeal, or, if they

don't file an appeal within 30 days, they will pull their authorization of employment. And this is creating a tremendous hardship.

I think•and I urge you and Chairman Mazzoli to please try and

put a stop to all this until you all can really iron all these things

out concerning the new law, because it is creating a big problem.

Mr. BRYANT. OK. Thank you.

Mr. Foster, would you rearticulate this harboring problem,

where there is the possibility of interpreting employing someone as

criminally harboring someone?

Mr. FOSTER. Well, the problem, it seems to me, was inherent in

the enactment of IRCA, that the harboring provision specifically

said•it was even known as the Texas proviso•that harboring did

not include normal employment, in effect.

IRCA eliminated that without any benefit of a grandfather

clause. And yet, at the same time, IRCA established, for knowingly

to employ an unauthorized alien, a series of civil fines, and then

the possibility of a six-month criminal penalty for a pattern or

practice.

And yet there was the old harboring provision, no longer with

the so-called Texas proviso. And so after that•many individuals

felt that the intent of Congress would not have been to have enacted a complex scheme of civil fines if simply the INS could

bypass that and go straight to harboring.

It was the testimony of the Acting General Counsel, Paul

Schmidt, before your committee, who stated that he understood

that, and that was stated in the preamble to the regulations.

And yet there have been some instances•and I tried, actually, in

preparing for this testimony, to find out the number of instances,

and I could only find one actual case; although I heard a lot of
86

people talk about cases, it turned out they were all talking about

the same few cases.

There have been a few instances where the INS has threatened

harboring, rather than a notice of intent to fine; INS simply says

that we can go straight to a harboring charge. And this was at the

investigator level.

And there have also been reported instances where cars have

been seized under a similar argument, that the employer was

transporting, although it seems clear that to seize a vehicle, it

should be in the furtherance of the illegal entry rather than a

normal incident of employment.

Mr. BRYANT. Thank you.

Mr. MAZZOLI. The gentleman's time has expired. I yield myself

five more minutes, and then come back to the gentleman for further questions.

In your statement, Mr. Foster, dealing with that northern Virginia restaurant case, and the fact that the agents basically leaped

over the counter and laid hands on the people who looked to be

Hispanic, is that verifiable? I mean, is that the way things were?

Because everything we have tried to suggest in our bill here,

from the very start, including the universal verification, was that

nobody, because of skin color, visage, accent, anything, is to be singled out. Everybody is the same, you know, the blond-haired guy,

the dark-haired guy, whatever.

And in two cases in your statement, you mentioned that the

agents went after people, the landscape case and the northern Virginia restaurant case, where they went after Hispanic-looking

people.

Now, is that pretty much on the record?

Mr. FOSTER. Neither one of those were my cases; as I said, I

heard about those cases, and I will be glad to send more information. But I had a number of

Mr. MAZZOLI. I would appreciate that, because, you know, if

there is one thing that we were devoted to from the very start, Senator Simpson and myself, and then later Mr. Rodino and others,

and John, is that this law was not to be discriminatory. I mean,

that was the whole basic foundation.

We even went to the point of trying to justify this to the small

employers, mom and pops, ladies who may need babysitters, that

you have got to verify it in order that we don't discriminate. It was

a hard case, believe me, a hard case to make to a lot of these

people.

They say, look, don't look at me. We don't even know what an

illegal alien is. And the only babysitter we have is people who•you

know, children of people I went to school with. Well, I said, sorry.

Unless you do this, then there is going to be given some opportunity for some employers to discriminate.

So, to make a long story short, that has been the driving influence of this entire bill. And where the Immigration Service itself

may be unmindful of that, and tend to ignore it, then I would like

to have some of the details, to the extent you can.

Also, as far as harboring, I remember that hearing with Paul

Schmidt, and we did some slight checking, and apparently the
87

stated position of the INS remains that employment-related matters are, in and of themselves, not harboring.

The case you mentioned, where maybe the people went behind

the french fry booth there or something, might be a little bit different. But the fact remains that it shouldn't be that way, and I

would like to have any evidence or any documents that you can

produce, possibly, on the harboring thing, because we want to be

sure that•even though they may not have put those specific statements in the regs, in the preamble but not the regulations, there

may be some way that we can make that a

Mr. FOSTER. Mr. Chairman, I just want to point out that regularly the INS central office will establish a policy, and that somehow

it doesn't get down to the field, and even people with the central

office will express frustration about the difficulty of maintaining

control over the field. And that goes within the district directors, of

their own people, at times.

Mr. MAZZOLI, I don't want to draw too many conclusions today,

but, you know, the truth of the matter is there has been quite a

long period of time for regulations to be understood and discussed

and disseminated and deliberated upon, and I am not quite sure

that that is•the subpoena authority you were talking about, one of

the earlier witnesses brought that matter up.

Could you talk a little bit about that, Mr. Foster and Mr. Montemayor and Ms. Shivers, anybody who has any experience with it,

the fact that whether or not, in your judgment, and as practitioners, the INS does have the authority to issue subpoenas to produce

people and produce documents upon which later charges can be

founded; or, in the other side of it, would the INS have to go to the

administrative law judge, make the case for the subpoena, and

then have the subpoena issued by the ALJ for the production of

people or for the production of documents?

Mr. Montemayor?

Mr. MONTEMAYOR. I haven't had an experience like that, but I

don't believe that the Immigration Service should have that right

on their own to issue subpoenas, or as an investigative body to

issue subpoenas, and then later on make the person a target of the

investigation.

I believe that that person has a perfect right to refuse to answer

anything under the Fifth Amendment. However, I believe that if

he goes through the process of the administrative law court, it is

just like the grand jury; it is just like the district courts. I believe

that they should have that subpoena right, but not before.

Mr. MAZZOLI. Mr. Foster?

Mr. FOSTER. All right. I think there is an argument that the INS

does not have the right of subpoena. I will first say, Mr. Mazzoli,

that it seems to me that the instances•and there aren't a lot of

them right now•where the INS is concerned about I-9s, the INS is

routinely issuing the subpoena on an administrative basis without

going to the ALJ, the administrative law judge.

The concern again is whether that will be overused; that is,

having gone through an investigation with at least one or two employers, it is quite disruptive of their business. To get all of their

payroll records, often going back for a number of years, is much

more burdensome than simply giving the INS their 1-9 file.
Now, as far as the INS legal authority, what is of interest is, as

you know, under IRCA, the provision that relates to the issuance of

subpoena give only the administrative law judge the right to issue

a subpoena.

And by omission, it would appear that the immigration investigator would have to make some sort of a reasonable showing before

the ALJ. Now, the INS is relying upon a general grant of authority

to issue administrative subpoenas that was contained in the Immigration Act before the enactment of IRCA.

I think an argument could be made•and again, I don't want to

be stating what Congress intended, since you are the man•that

IRCA changed the rules of the game so profoundly and affected

every employer in America, so that there should be a higher standard required, or more of a showing required, before an investigator

could issue a subpoena.

Mr. MAZZOLI. MS. Shivers?

Ms. SHIVERS. Well, I was just going to say that in this district,

the Immigration Service is using•they are using subpoenas very

frequently. And it is very disruptive for employers, and I questioned, and indeed commented when the regulations first came

out•that was one of the few areas that I commented on in suggested revisions, as it were, of the regulations•that I thought their authority that they were deriving was overbroad.

Mr. MAZZOLI. Can I ask, now, in your experience, either personally or from sources that you would rely upon with conviction, do

they issue the subpoena sort of to say hello, or have they got some

basic reason for doing it?

Basically, could they walk in and receive•after the three-day

notice that they would give•to take a look at the 1-9 forms and

just sort of check things out, or do they find that issuing the subpoena is, in effect, their calling card? I would like to

Ms. SHIVERS. Well, in my experience in the ones that our office

has been most recently involved in, those are the only ones really

that I would comment on, because I don't•I have talked with

other attorneys who have gone through this.

But in our experience, they are not issued as•they are definitely

not a calling card. They are usually asking for far more than if

they just sent the letter and said, I would like your I-9s.

Mr. MAZZOLI. Are these for employers, in your knowledge, who

have resisted voluntary discussions, or who have shown some antipathy toward the Immigration Service, or in any way have shown

some reluctance so that the Immigration feels like they have to be

a little heavy-handed?

Ms. SHIVERS. Well, I can answer that. In the cases that we are

handling, no, that was not the case. There was a rather•in Austin,

Texas there were pretty widespread•I call them raids; they call

them visits, in the month of June, and again in July, where many,

many employers were raided, or visited, depending upon your point

of view.

I don't know what the source of information was for those raids,

but many of those employers then•they had not gotten requests

for I-9s in advance, and in many cases had not been visited previously.
89

Mr. MAZZOLI. They had not gotten a request in advance? I

thought that they were giving three days' notice before they would

inspect.

Ms. SHIVERS. Not true.

Mr. FOSTER. Where the INS is relying upon their subpoena authority•that is the first notice the employer gets. There is no

three days' notice; they simply give you•the first thing the employer gets is a subpoena.

And this is clearly not routine. I think where it is being done is

where the INS has some reason to believe that the employer has

hired an unauthorized alien.

Mr. MAZZOLI. Well, this is good. We are going to have to move

on, unfortunately. But this is very important, because obviously we

want the law enforced. And as other witnesses will come up•and

perhaps even figure that the law is not being enforced with as

much vigor as it should.

But the end of it is, we want the law not to be ignored. We want

it enforced. But on the other hand, we obviously want it enforced

with the kind of surgical skill that I think INS is capable of utilizing, instead ofjust coming on in a kind of undifferentiated way.

And I think it is interesting what you were saying earlier about

whether it is a raid or a visit, the euphemism. But as one of the

earlier witnesses said, if that is verified, that to make an 1-9 call

you come in with two vans and six people, it is pretty hard to tell

whether it is a visit or raid.

I mean, there may be some indicia there that does confuse even

the objective and even somewhat sympathetic observer. So I think

this is, you know, something they will have to get into as to the

nature of a visit for the I-9s, and anything else, and exactly how

that would come to pass.

Mr. MONTEMAYOR. Mr. Chairman, I believe that the Immigration

subpoena power should be no less, or should be as strong, as a

criminal subpoena power by a district judge or a Federal district

judge. I don't see why there should be a second requirement.

I think it should be enforced and required that

Mr. MAZZOLI. So it is your consensus, is that right•a consensus

here would be three days' notice; the investigator comes in, takes a

look at the 1-9, doesn't like what he or she sees, or walks in the

back, maybe, and doesn't like what it looks like.

And then they say, you have got some problems, and unless you

rectify them•do you think that there ought to be notice given,

unless you rectify them we are going to get a subpoena, or if it is

bad enough they just go out and get a subpoena and they come

back and

Mr. MONTEMAYOR. No. Not only should there be notice, but there

should be an affidavit spelling out exactly what the crime is or

what the action is that they are looking at to the administrative

judge and let him decide, like U.S. magistrates. I don't believe that

they should be any different.

Ms. SHIVERS. And that has been done in our district. The first big

case in San Antonio, the Taco Cabana case, which was done last

summer•excuse me, last fall•they did go to a Federal magistrate

and did get a
90

Mr. MAZZOLI. A detailed subpoena? Well, I thank you all very

much. It was excellent testimony, very helpful. And anything further you would ever want to send us would be useful to have. We

appreciate it, and you are excused.

We will call our next panel: Mr. Fernando Dubove, Assistant Director, Texas Project, National Immigration, Refugee, and Citizenship Forum; Mr. Joe Vail, Community Task Force on Immigration

Affairs; and Mr. Mike Lehr, Federation for American Immigration

Reform.

Mr. Dubove? Am I not pronouncing

Mr. DUBOVE. Dubove, a long E.

Mr. MAZZOLI. Thank you. Dubove. You are welcome, and incidentally, let me take this moment to convey an apology I should have

conveyed at the beginning of the day, because many of you were

planning to come to San Antonio for a hearing that we had scheduled tentatively. I guess it was last month or something.

And I had to cancel, I wasn't able to get down. And many of you

were willing to come back, and I appreciate that very much. Sorry

that we had to go through that first confusion.

Mr. Dubove, you are recognized, and thank you again for coming.

TESTIMONY OF FERNANDO DUBOVE, ESQ.. ASSISTANT DIRECTOR, TEXAS PROJECT, NATIONAL IMMIGRATION, REFUGEE,

AND CITIZENSHIP FORUM

Mr. DUBOVE. Mr. Chairman, Congressman Bryant, thank you for

the opportunity to testify today. And I hope we have the opportunity to testify at a later time if this committee will take the initiative

in the next two months to hold similar hearings on the SAW program and its implementation in Texas.

I would like to focus my testimony on INS procedures during employer-sanctioned raids, and I would like to base it on a case study

of a recent raid that Ms. Shivers discussed briefly. It occurred in

Austin on June 15, where approximately 48 people were apprehended during the raid, at least six of which were known to be amnesty applicants, or applying for legalization.

Out of those six, three of those people took voluntary departure

and returned to Mexico; two of those people were detained for the

duration of the day and eventually released; and a third one is still

under detention here in San Antonio.

The raid raised several questions over INS procedures during

these raids. First is the authority of the INS enforcement to detain

known amnesty applicants and to adjudicate those peoples' applications. In the case of the two people that were detained for the duration of the day and eventually released, the INS questioned their

ability to apply under legalization because they had left briefly

after June 1, 1987, despite the case, Catholic Social Service v.

Meese, which authorized brief, casual departure. Those people were

detained for the duration of the day and eventually released.

In the second case, of the person who is still being detained by

the INS as a result of the raid, the INS enforcement are contending he doesn't qualify for amnesty because he has one felony conviction, a first-time felony conviction, though the conviction itself is
91

being handled through a deferred adjudication, which is waiverable

from the felony conviction.

The point is, in both those cases, there are procedures established within IRCA on how peoples' applications are decided. Their

applications are sent to the legalization office, which has the full

record. Those records are then sent to the regional processing facility, and if there is a denial there, the applicant still has the right

to appeal through legalization appeals unit.

All those people from all levels to the appeals unit are trained in

the full law of IRCA, and have the full record in front of them. We

don't feel that it was the intent of IRCA to allow the enforcement

people to begin adjudicating these peoples' applications, or to

detain them, as has happened with the one case of the person who

is still being detained right now.

The second incident, the second question that arose, is over

denial of access to counsel of these people. All of these people identified themselves as amnesty applicants, and all of them had gone

through qualified designated entities.

Q.D.E.s, by the nature of their contract with the INS, are recognized as these peoples' legal representatives with the INS. Yet at

no point was the QDE ever contacted that their clients were being

detained and were being held by the INS. At no point were these

people allowed to contact the QDE or an attorney to ask for counsel.

At the same time that these people were being detained without

access to their QDE or counsel, they were being pressured•and we

have this in affidavit•into trying to sign voluntary departures to

return to Mexico.

As I said, three of those people, at least, that we know of, did so.

Two of those people refused to do so, and they were eventually released; the third person also refused to sign a voluntary departure.

INS began deportation process against him, and he is still under

custody and being detained here.

The second kind of problem over access to counsel is the way the

INS has been moving these detainees from one location to another.

In the case of the person that is still being detained by INS, he was

originally apprehended at Austin. He was moved to San Antonio,

then to Seguin, to New Braunfels, back to Seguin, and he is currently in San Antonio.

This goes against the recent court ruling in Orantes Hernandez v.

INS, where the judge ruled against these kind of procedures because it did, in fact, harm the person's access to counsel, because

they couldn't establish a rapport with the counsel. Counsel didn't

know where the person was being held that day. Yet this is happening; it is going on now.

Our third concern raised from the raid was over INS abuses

toward individuals. We had reports of physical harassment, or

verbal abuse, not only to the detainee but to the employer, to the

QDE who went to the location after he found out that he had two

of his clients being detained. In fact, at one point the QDE testified

that he felt physically endangered.

The result was that a complaint was filed with the Office of Professional Responsibility, and because of the nature of the charges,
92

they are now being investigated by the criminal section of the civil

rights division of the Justice Department in Washington.

All of these questions arose out of the raid, and while this is just

one incident, we feel these type of problems are happening again,

where INS border enforcement people are picking up amnesty applicants and determining, after a series of questions beyond what is

purely a prima facie case, in deciding whether these people qualify

or not for asylum or legalization.

I am going to touch on a second point on the issue of family

unity briefly, and then I will close my comments. I would like to

point out one of the procedures that was being followed by the INS

in the Austin legalization office.

On May 10, the Austin legalization office started distributing

these memos, handwritten, in Spanish and English, for people who

had applied for amnesty, defining the procedure and how their immediate family members who were ineligible could apply for voluntary departure.

We were surprised at the fact that they would do this, for three

reasons. First, applying for voluntary departure, there was no

guarantee that the ineligible family members would receive it.

Second, there was no guarantee on any kind of a work authorization. And third, and the most serious at all, is that there are no

confidentiality safeguards for people who apply under this. And

that is exactly what happened.

Two weeks ago, a person who read this and filed for voluntary

departure for his family•his spouse was denied the voluntary departure, and an order to show cause was issued against the spouse.

He is now beginning the deportation proceedings.

Whether the INS acted in good faith in sending out these

memos•we like to think they did. But our real concern, beyond

the fact that they are misguiding people on what their options are,

is that in the long run, if Congress does pass some kind of legislation on family unity, it is going to undermine that Congressional

effort, because people's confidence in returning to the INS to deal

with family unity will be undermined.

Two other comments on the issue of family unity questions that

were brought up by you, Mr. Chairman. One is on the exact

number of people that might be affected by family unity.

We have to keep in mind that, as INS likes to point out, well

over half the people that applied for legalization did so on their

own, so they had no representative to turn to. They had no QDE;

they had no attorney to fall back and ask them about the other

numbers.

So whatever kind of case studies we might hear from Ms. Slaughter or from any other of the people who have worked with these

people, it is more than likely going to be the tip of the iceberg.

Secondly, on the issue of justification•and I will close here•it

really doesn't seem fair, sometimes, that people who came here legally might be denied and had to separate from their families.

But those who came here made the conscious decision. They

knew that for some period of time they were going to be separated

from their spouse, and that they would just have to wait for their

number to come up.
93

Similarly, those who immigrated here illegally to the United

States and brought their families with them made that same conscious decision, that they would stay together with their family and

live together until that point at which they might be apprehended,

at which point the entire family together would go back to their

native country.

It seems such a terrible irony•it is almost Shakespearean•that

now that parts of the family have this once in a lifetime opportunity to be legalized, that they are suddenly put in the position where

if a family member is caught and deportation is begun against

them, that they have to decide whether to go back with that

family, as they would have done originally, and give up their legalization, or to choose to be separated for a time being, something

that they weren't willing to do when they first made the decision

to come to this country, but with the thought that in two or three

years he might be able to bring her back through legalization

methods.

It is such a terrible dilemma for Congress. Thank you very much.

[The prepared statement of Mr. Bubove follows:]

89-730 - 89 - <•
94

IMMIGRATION HEARING

Subcommittee on Immigration, Refugees and International Law

San Antonio, Texas

August 23, 1988

Testimony Presented

By

Fernando Dubove

Assistant Director, Texas Project

National Immigration, Refugee 1 Citizenship Forum
95

SUMMARY OF TESTIMONY

I. Concerns With INS Procedures During Employer Sanction Raids

A. Apprehension, detention and adjudication of amnesty

applicants by enforcement officials.

B. Denial of access to counsel and due process for detainees.

C. Abusive conduct by INS enforcement officers during raids.

II. Family Unity

INS Legalization office policy encouraging ineligible

immediate family members to apply for voluntary departure,

then placing applicants into deportation proceedings.
96

Immigration, Refugees and International Law Subcommittee Hearing

Summary of Statement by

Fernando Dubove

Assistant Director, Texas Project

National Immigration, Refugee a Citizenship Forum

Mr. Chairman, committee members:

Thank you for inviting our organization to testify before this

subcommittee. My name is Fernando Dubove, I am the Assistant

Director for the Texas Project of the National Immigration,

Refugee and Citizenship Forum. Since March, 1987, we have

monitored the impact of the Immigration Reform and Control Act of

1986, by establishing regular contact with diverse groups

including:

-legal groups like the State Bar of Texas, AILA, ACLAI, and

MALDEF;

-state and local government agencies including the Governor's

office, and elected state and federal officials;

-state and local chamber of commerce and employers and labor

networkB;

-the local, district and regional office of the INS.

My comments today reflect the experience of these groups and our

Joint efforts to address local issues. As such, my comments are

not the views of our national organization or its Board of

Directors. Our office in Washington D.C. is a clearinghouse for

information on developments related to IRCA nationwide.

My comments will focus on concerns with INS procedure during
97

employer sanctions enforcement raids.

The passage of IRCA greatly increased the level of INS enforcement activities in Texas. Since passage of IRCA, 750 Border

Patrol agents have been added and another 600 will be hired, most

of whom will be assigned to the Texas border. The Border Patrol

is also being assisted by the National Gua*~d and local law

enforcement officers, (see attached article)

kith this stepped up activity, it is imperative that the atate

and general public be informed of INS responsibilities and

procedures . Already we have had reports that amnesty applicants

have been apprehended and/or deported, thct U.S. citizens have

had their vehicles confiscated. and legal representatives

harrassed by the INS

I will cite as an example, a recent case that was brought to the

attention of INS officials, Congressional staff, and the Office

of Professional Responsibility .

On July 15, the INS Enforcement Division conducted a series of

employer sanction raids in Austin. About nine amnesty applicants

were picked up by the INS. After extensive questioning by the

INS, six signed voluntary returns *nd Hero sent to Mexico, two

were released, and a third is still in detention. The raid

raised several questions.
98

ADJUDICATION OF AMNESTY APPLICATIONS BY ENFORCEMENT OFFICIALS

First, is the question of whether the INS Enforcement Division

has the right to apprehend, detain, or deport amnesty applicants,

and at what point enforcement officers are prohibited from

adjudicating an application . Two applicants were detained all

day, refused to sign voluntary departures, and later released.

The INS was concerned that they had returned to Mexico after May

1, 1987 for a brief visit, despite a court ruling, Catholic

Social Service v. Meese. allowing such. Another applicant, who

did sign a voluntary return, has since returned to the U.S.,

gone back to the QUE, and is gathering documentation for his SAW

application.

The worst case, however, is Rodrigo Montollo, an amnesty

applicant picked up at the June IS raid and who haa been in

detention ever since. Enforcement officers tried to coerce him

to sign a voluntary return. He wouldn't, and the INS began

deportation proceedings against him because they didn't feel he

qualified for amnesty. Their reasoning is that he haa a felony

conviction. However, the conviction is a deferred adjudication,

which makes the felony exemption waiverable by the Regional

Processing Facility or Legalization Appeals Unit. The point is,

there is a procedure established, within IRCA, for determining

that type of application. The process involves decisions made by

the R.P.F. and Legalization Appeals Unit, people with acceas to

the complete record. The prooess doesn't involve beginning
ft9

deportation proceedings by local enforcement officers. Yet il is

happening.

DENIAL OP ACCESS TO COUNSEL AND DUE PROCESS

We are alfo concerned with the denial of access to counsel or

their legal representatives for people who are picrted up during

raids. During the Austin raid, several persons, despite

identifying themselves as QDE represented amnesty applicants,

were denied access to their legal representatives. Nor were the

QDEs ever notified by the INS of their client's apprehension.

These people were interrogated, and offered the chance to sign

voluntary returns. Many did so, without access to counsel. This

is a serious constitutional question that oust be addressed.

The INS is also continuing its policy of moving detainees from

one facility to another, infringing on the perBor's access to

counsel. Since Mr. Montolla was apprehended, he has been moved

from Austin to San Antonio to New Braunfels to Seguin, and back

to San Antonio. This goes totally against the spirit of Orantea

Hernandez v. Meese, a case decided on April 29 that set the

framework for voluntary deportation cases for Central Americans.

There are other examples of detainees being shuffled from

facility to facility. In March, I traveled with an attorney to

Belton, Texas to interview about 11 undocumented women being

held. They had been picked up in San Diego, bused to Pecos, and
100

the Bell County facility in Belton. They eventually wound up in

San Antonio. One woman was in need of medical attention . Our

office was contacted by the Mexican Consulate, who felt their

rights were being violated . Beyond the humanitarian questions,

there arises the issue of legal liability for the county and

state facilities contracting with the INS.

HARRASSMENT AND PROFESSIONAL MISCONDUCT

We are also concerned with the conduct of INS officers during

enforcement raids. We've received reports of abusive language

and intimidating behavior that left people fearful of physical

harm. This was reported, not only by those detained, but also by

QDE representatives trying to secure the release of clients, and

by employers and other U.S. citizens who were at the raid site.

The conduct resulted in complaints filed with the Office of

Professional Responsibility, who forwarded the complaints to

the Criminal Section of the Civil Rights Division of the Justice

Department.

On learning of this case, our office, consistent with IRCA

Section III(c), attempted, along with attorneys and Congressional

staff, to aeet with the INS to review the case and clarify

procedures. To date no meeting has occurred, increasing the

chances of a similar event repeating itself.

I would like to shift gears for a moment and talk about family
101

unity. Inconsistent INS interpretations on family unity make it

imperative that Congress act immediately on a policy that will

assure security to immediate family members of newly legalized

residents. Current INS procedures are hurting everyone, and can

only result in future litigation . Let me give you an example.

In June, the Austin Legalization Office began distributing a memo

to successful amnesty applicants describing how their ineligible

immediate family members could apply for voluntary departure.

Yet applying for voluntary departure offered no advantage to the

unqualified family members. First, there is no guarantee of

receiving voluntary departure. Second, it was not clear if the

voluntary departure would come with work authorization, and

third, unlike amnesty applications, voluntary departure applications are not safeguarded by confidentiality provisions. In

fact, voluntary departure applicants are in a worse position

because t'icy are exposed to deportation proceedings, which is

exactly what happened. An amnesty applicant followed the directions on the memo and filed for his wife. She was denied and the

INS filed an order to show cause, the first step for a deportation hearing.

Did the INS act in good faith distributing the memo? I hope so,

but these type of inconsistencies hurt INS credibility and will

undermine confidence in the amnesty program. This kind of

action will also hurt any family unity proposal Congress may pass

in the year ahead. Congress and the INS must act together, and
102

quickly, on a coherent, consistent family unity policy.

Let ae conclude by saying that I an not trying to harp on the INS

or complain about IRCA. It was a tough law for Congress to pass.

There were long heated debates, and many sesberg were not

comfortable with their vote. But now it is the law. That means

an increase in raids and deportation of undocumented people

living in the U.S. But IRCA also provided assurances that we

feel are being violated. And unless Congress makes sure the law

is implemented fairly, it is a vote Congress will face again in a

few years.
103

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105

Fernando Dubove

EDUCATION

The University of Texas Law School

- J.J.D. May 1986

- Seminar and Independent Studies:

Thesis: "The Application of Extended Voluntary Departure to Central

American Refugees."

l&dmdya]fie>CHJ"Ch - Prof. Filvaroff

Thesis:"Argenuna & the Dirty War."

Tne University of Texas at Ausrin

• B.A., wiln honors, in Government. May 198?

PROFESSIONAL EXPERIE\'CE

Fitripnal Immigration. Refugee & Citizenship Forum. Assistant Director, September \9%~> •

current. Organized local and stale coalitions for immigrant end refugee rghts

advocacy group. Prepared U.S. Immigration policy br.efings.

House Judiciary Committee - State of Texas • Counvl, 70;h Session (January • July

196/). Analyzed the legal effect anJ draj'lcd amendment to pfposed legislation.
106

COMPLAINT FORM

FORMA PAPA QUEJAS (DCMAMOAS)

Burton VI11 Ian Bascom, III July 1, 1988

P.O. BOX 801

Burnet, TX 78611

U) 756-2828

(512M78-9I00

BBS Q« B5-SS5 Cwpwi•wi

iron ox inciiMOc 0» « tr»--g-i

Johnny Tel I Is Scott Robertson, ct al

IBS

HOT*

6:00 a.m. to

7:00 p.m.

South 2nd, Austin, Texas June 15, 1988

PftfNMIWflf*

11 see attached see attached iee attached

SEE ATTACHED NARRATIVE AHO AFFIDAVITS

•-7*7 HS inm
107

DETAILS:

Please see attached affidavits for narrative descriptions of the

events on the above referenced date, fly concerns - complaint •

focuses on five <S) areas Involving violations of human rights

and due process:

1. Denial of access to counsel: several actions taken by the

INS enforcement team fall into this category.

>'a) Mr. Tell is denied me access to our clients by denying

that they Merer our clients and refusing to even consider cht

documents which I had brought with me.

<b> Mr. Robertson denied me access to our clients even

after I filed G-2BS by lying as to the whereabouts of our

clients and denying that they were in custody when they were not

released until at least an hour and one-half later.

(c) By denying us access to the clients we knew hid been

arrested, they prevented us from finding out that several other

clients o-f ours had also been arrested on that date until after

they had been returned to Mexico.

(d) None of our clients we have been able to contact who

were arrested on this date were ever advised that they could

contact their ODE or an attorney.

lei None of them was given access to a telephone.

(f) All of them had their personal papers and our business

cards removed and never returned; thus even if they were later

given access to a telephone (at a detention center, for example)

they could not have contacted us. Most of our clients cannot

remember the name of our organization nor are they able to get

information from an operator.

<g> Even when Mr. Tellis called our office at the

insistance of one of our clients, he did not give the client a

chance to speak with us, nor did he inform us that the clients

he asked about were under arrest.

2. Adjudication of Legalization Applications by enforcement

officers - without even seeing the evidence!

IRCA-19B6 defines the manner by which an application will

be reviewed and adjudicated - Including the processes and the

personnel who will determine if the applicant is elligible, if

there is fraud in the application, approve or deny, and consider

appeals. All of these processes and rights given to the

applicant under IRCA were flagrantly violated and denied by the

arresting officers who had not (and by law could not) review the

application itself, thus preempting the legal process and

dlsenfranchlzlng those to whom congress had specifically granted
108

the right to apply for Lcgtllittlon, and violating the

procttdurct to be •followed by »rrt«tlng officers a> specified In

IRCA, the regulations, and INS internal directives to Its

officers (see Legalixation Wire «1 and June 1, 1988 cable CO13BB-C).

Furthermore, the grounds stated for deciding that these

aliens were not elliglble to apply for Legalization - and the

grounds on which these officers issued OSCs - that they had an

entry date after May 1, 19B7, is in direct violation of Federal

Court injunction IU.S. Catholic Services vs. rleese) to atop

enforcing that regulation! something all the officers surely

knew (see regs., Leg. Wire •!, and cable C0-1S88-C).

3. Impounding of vehicles based on the determination that the

Legalization applicants riding in the vehicles were "Illegals".

First, as noted above, these applicants had legal status

in the U.S. given to them by congress under IRCA and the process

by which those rights »rm to be adjudicated had not been

exhausted. They were not Illegally in the U.S. at the time of

thier arrest.

Second, even if these applicants *re later judged to be

inelllglble due to statutory inel1igibi11ty or because of fraud,

the driver of the vehicles could not be held responsible for

knowing this would happen. In effect, the INS is forcing

contractors to adjudicate Legalization applications a priori and

to descriminate against Legalization applicants because having

them in one of their vehicles will result in the vehicle being

impounded.

4. Coercing applicants who mrt arrested to make false

statements against themsleves or to sign "Voluntary Departure"

f or ms.

Mr. Tel Its repeatedly told the aliens what they were to

•ay - defining the "truth" and labeling any variation from his

version as a "lle"| threatened the aliens with lengthy Jail

terms or other unspecified "very bad" consequences If they did

not say what he told them to| and when *n alien signed a form

requesting a court hearing, Mr. Tellls told the alien that he

did not have that right.

5. Abusive conduct by INS offlcersi Mr. Tellls' gratuitous

abuse and Invective Mart totally unprovoked and had no purpose

other than to terrorize Mrs. Guzman end me - both U.S. citizens.
109

I hearby formally request an immediate investigation into these

incidents and practices and that I be notified of the results of

this investigation.

cc.

U.S. Senator Lloyd Bentsen

U.S. Senator Phil Graaa

Congressman J.J. "Jake" Pickle

Congressman John Bryant

Fernando Dubove,

National Immigration, Refugee and Citizenship Forum

Maria Jiminez,

American Friends Service Committee

Noras Cantu,

Mexican American Legal Defense and Education Fund

Jeff Larsen,

Texas Legal Services Center

Jim Harringtonf

American Civil Liberties Union
110

AFFIDAVIT

STATE OF TEXAS

COUNTY OF TRAVIS

Beforp me, the undersigned authority, on this day personally

appeared the undersigned afdjnt who being by me duly sworn,

upon oath stated;

My name is Burton William Bascom III and I reside in Sunset

Hills subdivision. My mailing address is P.O. Box BOl, Burnet,

Texas 78611.

On Wednesday, June 15,1988, I was working at Refugee Rights Inc.,

a non-profit corporation offering a variety of services to

immigrants and refugees. I was informed by Mrs. Aurelio Guzman,

the sister-in-law of two of our Legalization clients (under 1RCA19B6) that our clients, Jose Asuncion Guzman-De la Cruz and

German Guzman-De la Cruz, had been arrested by INS and that she

had been told that they were going to be shipped to a detention

center at 3:0O p.m. I was further informed by £. member of our

staff that INS had called earlier in the day and that we had

confirmed their status as Legalization applicants. I proceeded

to the INS office on South 2nd in Austin with two goals in mind:

first, to ascertain the INS's reasons and intentions with

regards to our clients, and second, to talk to our clients and

assure them of our concern and representation.

When Mrs. Guzman and I entered the INS offices we were met by a

man who asked if he could help us. I asked if this was the INS

ofiice and he answered that it was and ushured us into an office.

The man (he never identified himself, but I later asked a coworker of his for his name and was told that the man was Johnny

Tellis) asked us what we wanted. I identified myself and

explained my purposes in coming. When I got to where 1 was

saying that I wanted to find out how to go about getting to see

our clients, Mr. Tellis Interrupted with an emphatic "No you're

not!" I paused, expecting some explanation for the outburst.

When none was forthcoming, I pulled out our clients'

Legalization files and explained that the men in question were

Legalization applicants. Mr. Tellis again interrupted to state

very emphatically, "No they're not1" Again I paused, and when Mr.

Tellis did not continue, I proceeded with my explanation of our

understanding that since they had filed their applications with

a ODE prior to May 4, 19BB, we had until July 3th to file their

completed applications with the LO. Mr. Tellis stated very

curtly, "Not anymore!" I tried to restate the case and got the

same response.

At this point I was thoroughly confused and considerably

-frightened by this man's unwillingness to explain his curt
Ill

statements and by his extreme hostility (expressed not only by

his tone and manner, but also by the -fact that though we were

seated he remained standing with his arms alternately crossed

over his chest or with his hands placed on his hips). At this

point I asked Mr. Tell is why he -felt the men in question were

not Legaliztion applicants. Mr. Tellis' response was "Just shut

up and listen." This was entirely unnecessary since no one had

attempted to Interrupt him at any time and 1 was so completely

disconcerted that I was in no way rushing the conversation. Mr.

Tellis' explanation was a verbal battering, the jlst of which

was that the men had made statements Indicating that they had an

entry date in 198B and that they were there-fore inelliglble for

Legalization. At some point during this explanation Mr. Tellis

sat down. When he stopped talking Mrs. Guzman attempted to say

something. I was not even aware that she had begun speaking when

Mr. Tellis leapt to his -feet and -fairly shouted "You Just shut

up and listen." 1 was very much afraid -for our physical safety

so I encouraged Mrs. Guzman to let me do the talking. This was

apparently not su-f-ficlent because Mr. Tellis ordered me to "Shut

up and listen!" as well. When Mr. Tellis stopped talking again,

Mrs. Guzman made another attempt to speak. Again, Mr. Tellis

interrupted her be-fore the first few words were out o-f her mouth

and ordered her to "Shut up and just listen." Mrs. Guzman became

emotional and stood up to leave the room. Mr. Tellis interrupted

a verbal barrage aimed at me to lean across the desk and shout

"You sit down in that chair and stay there!" I once again became

concerned for our well-being and attempted to end the

conversation by asking what would happen to the men. Mr. Tellis

Indicated that they would be released with an OSC. I Attempted

to ask "Can we expect them to come home today?" but Mr. Tellis

interrupted after the word "expect" to scream at me "You can

expect absolutely nothing!" I attemped to rephrase my question

in what I felt would be as non-threatening a form as possible by

couching It in terms of whether or not we would need to be in

court when the men were brought before an immigration Judge. Mr.

Tellis repeatedly Insisted that we could not represent them in

court. I finally was able to get him to understand that Refugee

Rights has Accredited Representatives on staff who are certified

to represent clients in Immigration court. He then suggested

that we file a G-28. I agreed and, after a question about the

truck that was impounded, we got ready to leave. As we were at

the door, Mrs. Guzman made one last attempt to ask a question -

with the same result: Mr. Tellis made a point of interrupting

her and ordering her to "Shut up and listen!" I quickly ushered

Mrs. Guzman out of the room and the building.

I returned to the INS office alone at 4:45 p.m. with G-28 forms

In hand to see if I could speak with our clients or at least

find out where they were. I entered and my presence was noted by

•ye-contact by several people in the room but no one spoke for a

few minutes. Finally Ralph Garcia, whom I knew from when he

worked at the Austin LO, came through the room and asked why I

was there. I showed him the G-28s and asked who I should talk to

about the disposition of the two men. After another few minutes

a man came out with a binder in hand and introduced himself. I

failed to catch his name but was later told that it was probably
112

Scott Robertson,

seemed willing to

and took out the

the whereabouts o

some notations, •

they had been rel

earlle- and that

men, they were no

my concern over t

Mr. Robertson exp

the last moment "

but that when int

number "about ha1

some flaw in tnei

responded that in

waivers and merc1

file applications

1987, that we had

and had been toJd

with a decision a

later date. He in

persons ?nd that

Mr. Soto) about t

apologized -for "t

encounter wittt Mr

I expressed my relief at bei

at least enter into a civil

G-2Bs. I told him my first q

f the two men. He opened his

nd said, "They've been relea

eased and he indicated that

they should be home shortly

t released until after 6:00

he arrest of men in the proc

lamed that many aliens had

Just to see if they might go

ervlewed by INS enforcement

f of ail we've interviewed"

r case, or sone "bar" to Leg

some cases these issues cou

oned specifically that we we

for those who had entry dat

been in contact with INS of

th*t the RPC would accept s

bout the necessity of wawer

dicated that his orders were

he would cherk wif"> Leo (and

he "different signals" we we

he problem' (understood to r

. Tellis) and I l-'t.

ng with someone who

ized discussion,

uestion concerned

binder, pointed to

sed." I asked when

it had been a while

(According to the

p.m.) 1 then noted

ess of Legalization,

filed with ODEs at

t Legalization",

agents a large

were found to have

alization. I

Id be handled bv

re continuing to

es af ter May 1,

ficials about (.his

uch applications

s to hi? made at a

to deport such

erptood to refer ro

'^ getting. !He thei

ef«' to my ear 11 e>-

Burton William Bascom 111, Aff*a"t

SUBSCRIBED AND SWORN TO before me this 2.J day of Jujie. ,

19B8.

NOIAfeY P•bLIC

TvtLi L. Flol

tL8.V.Ls.__ COUNTY

STATE OF TEXAS

My commission expires l-16.z.2.d_
113

\f

ujav^-^w «•»T • I '

30 W)rkers in Fai

Seized as Illegal Aliens

By Patricia Davis

Fifteen special agents with the

Immigration and Naturalization

Service descended on a Fairfax City

landscaping business early yesterday and arrested as illegal aliens 30

Hispanic workers, many of whom

were in the process of seeking amnesty, officials said.

The raid, described as the largest

in the Washington area this year,

was immediately decried by an owner of the landscaping business, an

immigration lawyer retained several months ago to help the workers

achieve amnesty and a representative of an immigrants rights group.

Vibiana Andrade of the National

Center for Immigrants Rights in

Los Angeles said, "If these people

applied for amnesty, they have an

automatic stay of deportation."

John Wright, assistant director

for investigations at INI disagreed:

"All 30 people are illeially in the

United States: some of them, as

we're finding out now. have applied

for amnesty benefits as special agricultural workers,

"That has no affect on our axrests." he said.

Margaret Pijor, the immigration

lawyer hired several months ago by

landscaper Green Thumb Enterprises Inc., said that a program under the 1986 Immigration Reform

and Control Act allows special agricultural workers until November

to apply for amnesty.

Pijor said between seven and 10

of the 30 aliens arrested had already received authorization to

work in this country and ptbers

were applying for that right. \

See INS. U, Col t

INS. From Cl

"A

In addition. Pijor said, INS agents

seized her files, which contained

documents relating to the workers'

applications for amnesty. She maintained that, in addition to attorneyclient privilege, the files are protected under federal immigration

laws.

Pijor said she had an appoint mem

at S a.m. yesterday at Green

Thumb to review the workers' applications, but by the time she ar-#

rived at the business, at 3325 and"

3809 Pickett Rd. in Fairfax City,

the raid had concluded.

Fifteen agents, armed with funs

and a federal search warrant, arrived at the landscaping business

about 7 a.m. and arrested the workers, officials said. The workers

were handcuffed, placed in vans and

taken to the INS detention and deportation center in Arlington, they

said.

According to an affidavit filed in

support of the search warrant, federal authorities had placed Green

Thumb under surveillance.

The affidavit said in part that

workers at the business, "appeared

by their actions and demeanor to be

illegal aliens from Latin American

countries."

Victor M. Glasberg, an Alexandria lawyer who will seek the return

of lawyer -Prjor's files, said he was

"astounded" at the reason given by

federal authorities for arresting the

workers.

"I think it's basically detaining

people because they look Hispanic,

and that's not right." he said.

Michael Daniels, an owner of .

Green Thumb, said that when fed- -

era! agents arrived, there were

about 70 workers standing around, '

but only those who "looked Hispanic" were arrested.

Green Thumb, a commercial

landscaping design, installation and ;

maintenance company,. employs

about 250 to 200 workers, depending on the season, he said.

Daniels said the men who were

arrested range in age from 20 to 40

and some were not in their work -

clothes because they were ached- •

uled to apply for amnesty. Many '

had already received their physicals

and completed much of the paper- -

work, he said.

"Eleven were going down [to apply] today." said Daniels.

"So all of a sudden these guys get

thrown in the paddy wagon," he

said.

Wright of INS said some of those .

who were detained yesterday would

be released pending deportation

hearings. '

He would not comment on the

seizure of the documents, and said j

the investigation is continuing.

The 1986 Immigration and Re- .

form Act provided a year-long offer •

of amnesty to undocumented immi- .

grants who have been in this country since Jan.( 1. 1982. That year

ended May 4.

The act also imposed stiff fines

on employers who knowingly hire

illegal aliens.

Staff writers John Bonn and

Virginia Mansfield contributed to

this report
114

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Mr. MAZZOLI. Thank you very much. Very eloquently stated, and

certainly it does illustrate the difficult straits we all find ourselves

in.

Mr. Vail?

TESTIMONY OF JOSEPH A. VAIL, COMMUNITY TASK FORCE ON

IMMIGRATION AFFAIRS

Mr. WAIL. Congressman, first of all, thanks for the permission to

testify here today. I am going to focus my comments on a couple

issues, family unity, a little bit on employer sanctions, and employment discrimination. And I am basically going to use a couple statistics and a couple examples.

First of all, we submitted some new information, an updated

report today, which contained some things that weren't in our

original report. On the issue of family unity, we had asked one of

our groups in the Community Task Force to do a study on what

portion of their clients might have family members separated as a

result of family unity provisions.

And out of 224 applications from families that they handled,

what they found was 43 with families able to legalize all family

members, 46 where only one parent was applying because the other

parent didn't qualify and resided here in the United States, and 91

with children who would remain undocumented and residing in the

United States where the parents would qualify, out of 224 applications.

An example of one of those cases is a case that I dealt with, regarding the issue of whether INS is actually deporting people and

actually separating family members. My example, which isn't in

my materials•it is a fairly recent example•is an individual that

came to me with a final order of deportation.

He had applied for political asylum and been denied, and came

to my office with what they call a bag-and-baggage letter, which is

the death sentence in immigration law, to report July 9.

I contacted the Immigration office and informed them that his

wife and three children had all applied for legalization, and that

they had been granted work authorization and their applications

were pending. They said he still had to report for the deportation,

and they would make a decision at that point what they would do

on him.

We reported, as requested. In addition, he had one child that has

an infection of the nervous system, which is very serious, and we

have some documentation on that. At that point, what they did

was, they didn't deport him. What they did was they stayed his deportation, which is not a grant of voluntary departure. They just

stayed it.

They told him•and I will just read part of the letter•"You

have been granted a temporary stay of deportation to await the

formulation of policy regarding derivative eligibility for benefits

under the Immigration Reform and Control Act of 1986. The stay is

being conditionally granted until June 9, 1989."

Then it goes down and says, "Unless this office directs you otherwise, you must report to this office on June 12, 1989 at 8:00 a.m.,

ready for deportation. Should you decide to have your family ac-
116

company you, please advise this office so that proper travel reservations can be made."

The point I am trying to make is that the Service, while they are

not actually deporting, they are making moves to, and they are getting deportation orders against people which will be used some

time down the road.

We saw that in the example with the Silva cases back in the

early 1980s, that while they were granted a long permission of time

to stay here, later on many of those people were actually deported,

even though they had been here in some kind of a limbo status for

a year.

The second example is an example of where the parent qualified,

and the children came later on and would not qualify. In this instance, it is a single mother who came to the United States in 1981,

fled her country in Central America because she was having problems there, and came to the United States, and in 1982 went down

and brought her children back with her.

She has applied; she has been granted amnesty. She has a 14-

year-old daughter and a 10-year-old daughter who do not qualify,

cannot apply, do not have work authorization, and therefore they

cannot get Social Security cards.

As a result, she has been informed that even though she is the

sole support for these children on a $14,000 a year salary, that she

cannot claim them on her income tax returns, because they do not

have valid Social Security numbers. And she has been informed

by•I am not sure if it is the IRS or who has informed her of that,

but she cannot claim those people. And she is the sole support of

those two children.

In addition, we do know of and I have talked with school districts

that have told parents of students that don't have Social Security

numbers, that their children will not be permitted to attend school

in that school district if they don't come through with valid Social

Security numbers. This is in spite of the fact there is a Supreme

Court case that says that that can't be done; all children must be

permitted to attend public school.

Those are just some of the sample cases, and are a couple that I

have dealt with, that I know are facts.

The next thing I wanted to talk briefly about is employer sanctions, and a related problem of employment authorization. And in

this area, we are talking about people that mainly don't qualify for

legalization, but, as you know, the regulations give people that are

applying for other benefits under the Immigration Act, whether it

is suspension of deportation or political asylum or an immigrant

visa•the regulations give these individuals the ability to apply for

employment authorization. And it says the Immigration Service

has to adjudicate these applications within 60 days.

What we have found is that the Immigration Service has been

very restrictive in granting these, and in many of the cases, some

of the examples which are cited in our materials, the Service has

gone far over the 60 days in adjudicating this.

And this is real serious, because you can choke off any kind of a

benefit just by denying employment authorization, or by being slow

about it. You can effectively put a choke hold on someone's ability
117

to get a benefit under the Immigration Act, whether it is amnesty

or other provisions of the Act to which they may be entitled.

And one example, one of the groups in our task force has, right

now, 34 applications that have been•that are overdue, that have

passed the 60 days. And these people need to work. Most of them

are asylum applicants; they have fled Central America, and they

have valid claims for political asylum.

Mr. MAZZOLI. Can you tell me what is the gist of the investigation? What is INS supposed to be investigating during this 60-day

period?

Mr. VAIL. Well, on political asylum applications, what they are

supposed to be investigating is whether the claim is frivolous or

not.

Mr. MAZZOLI. NO, no. I am talking about why would they take

that long to issue the work permit? Are they adjudicating the question of asylum, or the question of whether or not the person should

have a work permit?

Mr. VAIL. I think that a lot of that•they claim that a lot of it is

whether the person should have asylum or not.

Mr. MAZZOLI. OK. So, in other words, they are going to the major

question, and they are holding up the issuance of the work permit

to give them time to decide, basically, whether or not a person

should be granted asylum?

Mr. VAIL. Right.

Mr. MAZZOLI. And if they can't make that decision in 60 days,

then they have got to give the work permit to the individual even

if they are continuing to deliberate on whether or not their asylum

status will be granted. Is that correct?

Mr. VAIL. Exactly.

Mr. MAZZOLI. OK. And you say your experience has been that

they have held up•and you did document that in your statement•several beyond the 60. Once you threatened mandamus,

then they all came through, or basically came through?

Mr. VAIL. Well, no. Some of them came through; not all of them

came through.

Mr. MAZZOLI. YOU still have some over the 60.

Mr. VAIL. Still some that are pending, and, in addition, some of

the decisions that came back were these form letters that, in many

cases, did not relate to the claims at all. There is a form letter that

came out that

Mr. MAZZOLI. OK. Can you document that information? Can you

give names and addresses?

Mr. VAIL. Yes, we can. One point on that issue, Congressman, is

that the interesting thing about those 34 cases that I mentioned is

that it is the immigration judge and the immigration court who actually decides those asylum applications, while it is the district director, in adjudicating the work authorization requests, who makes

the decision on whether the claim is frivolous.

And it is really kind of a contradiction in terms, when you have

one form that is supposed to adjudicate whether it is a well-founded plea of asylum, and you have a district director who is saying

that this may be a frivolous claim. And you have two conflicting

forums for adjudicating whether or not this is a valid claim.
118

Mr. MAZZOLI. Are you saying that your understanding of the law

is that the INS is supposed to grant the work authority if they

can't decide the question of asylum in the 60-day period? Is that

your understanding of the law?

Mr. VAIL. Exactly. My understanding of the regulations

under

Mr. MAZZOLI. Well, we understand it might be something different than that, but maybe some of the lawyers might help us. But

there may be some further discretion on the part of INS.

Mr. VAIL. 274(aX13).

Mr. MAZZOLI. Yes. We will have to find out.

Mr. VAIL. Cculd I just•one more point?

Mr. MAZZOU. OK. One more.

Mr. VAIL. One more point, I am sorry.

Mr. MAZZOLI. I took some of your time.

Mr. VAIL. I am sorry. Finally, just on the issue of employment

discrimination, there has been in the last two weeks television and

newspaper reports that out of the ten employers that have been

cited in the Houston district, nine of them have been minorityowned businesses, Asian or Latino businesses that have been cited.

And there is a question there as to where the focus is on the enforcement of the employer sanctions.

In addition, in a study that is cited in our report, Telesurveys of

Houston, which is a corporation that does surveys and does research, found that before this was even enforced, that at least 17

percent of businesses in Houston felt that there would be a hesitancy or some discrimination on the part of employers to hire foreignappearing applicants for jobs.

I can provide the documentation and the basis for that study. It

is cited in our report. But this is before the law was even enforced.

Well, 19 percent weren't too sure whether this would happen, and

the other percentage thought that there wouldn't be any discrimination.

[The prepared statement of Mr. Vail follows:]
119

COMMUNITY TASK FORCE TESTIMONY TRANSCRIPT

The passage of the Immigration Refora and Control Act (IRCA)

in November of 1986 marks a dramatic departure in US immigration

policy. Historically, the federal government has been charged with

the enforcement of the regulations determining who can cross the

border. Under the Employer Sanctions provision of IRCA, in

contrast, the employer now shoulders the burden of enforcement and

control. Moreover, a second provision of IRCA, the "legalization

program", allows for legal residence for those immigrants who were

residing and working in the US prior to January 1, 1982. Other

provisions of IRCA Include a discrimination clause, financial

assistance to local service agencies and the creation of various

agricultural workers programs.

Given that the passage of IRCA was not based on a national

consensus regarding the number of undocumented immigrants and their

Impact on US society, the implementation of IRCA's provisions bears

monitoring and evaluation.

A Community Task Force on Immigration Affairs (CTF), comprised

of organizations and individuals Involved with immigrant and

refugee rights in Houston, was formed under a provision of IRCA

(Sec. 111(c)) to monitor Immigration and Naturalization Service

(INS) activities and focus on Issues relating to those persons who

did not qualify for "legalization", and for protecting the rights

of those who did. The CTF is comprised of:

•Mexican Consulate

•Greater Houston Ministerial Alliance

•Council of Houston Hispanic Organizations

•Mexican American Bar Association

•Central American Refugee Center (CARECEN)

•Central American Refugee Committee (CRECEN)

•Central American Refugee Network (CARNET)

•American Friends Service Committee

•Justice and Peace Action Forum

•Priests of the Sacred Heart, Office of Justice and Peace

•Texas Center for Immigrant Legal Aasistance

•Dominican Sisters, Congregation of the Sacred Heart

•Guadalupe Area Social Services

•Lutheran Social Servicea of Texas

•Guatemala Refugee Committee

•Christian Community Bill Woods

•Women for Guatemala

•LULAC 609
120

•LULAC 643B *

2

"

•Catholic Charities

•Sisters of Charity of the Incarnate Word

•Anti-D.scrimination Hotline

*Pr i var *» Immigration Attorneys

All of the aforementioned organizations anc individuals are in

contact w • th immigrants, local government agencies and IHS.

The following page* underscore two :>f the aajor provision.! of

the law, nnn^'r, far-1 ly unity and employer sanctions. These

preliminary observations are baaed on systernatic documentation of

problems report- 1 hy clients, as well as information gathered from

interviews with key personnel in local governrae,,* -and service

agencies.

It is 1?p<»ret1vp thafc these problems he addressed while the

].»v is still in the intplepeitatiun stages to ens in e the legislative

*niM»M*e t'lf'en r-jt Its stsred purposes: M v i 1 r igM s

protection for iaaigrantp end the •echrnisas far hecoming a legal

rest lent,

The prob1> T of illegal entrants addressed by the law grounds

the ljgali/dti R provr-"3. We cm divide th^je pir^ota d-.recr.ly

touched by the law int J M'ose who "aade i> in" in-1 rhjflt left out.

In the prloi i itepory, *hose who qualify, we will exnsine some of

Che bureaucrat!' ana ddministrati-e problems whi^h ronlront theo.

In repeated *••*(*• applicants have heen given conflicting

Information f r ..: 1Kb representatives regarding their eligibility or

lark <»f it in natters al continuous res'lenre, financial

re«p->nNibilirv »hf ne*>1 for wivors and lllewility of status.

Many Individ...-.' have been discouraged from applying when they

night hiive <i*tn1'*led.

The *<iuni- of the confi • 'on smoriR TVS representative*- are

sever 11. In; * 5 IC lent troinii.,; on t * •» If'•'id involved in

adiudici'ing l'.ilizatien appllriMona 1 ef • the INr"-our-so*. ors at a

los«s. Tli-n l* _« offiii ' s not t - •. "*d In 1 evil i •»•* *• n -ut f >ni I iar

with the pr-.vr ,. were r-lled fr->n t »,e dlhtrirt off-rft. Some nf the

• ore CJi'n pr -Dlems s-jch as t\e definition nf a alsdeaeanor

ti t.vKt. >n i Tif m>i'..ag of 'j .:t>l if t Large" ft aired training

%Sir!. Mini oi th« count."*, jrs had w I receivtd.

The -!.•-.• basl- cause *»t t*»* ' .r'-isUn i-«*ng t*e !*•>

counselors, ».. - *er, v - - the ton* ' i«* tine r «•»; .la* 1-u.* ind »r-j', r*t_ ia

las ]«*d b? t hi reg ioi... i and cen* ral offices. Du< i t v the courhe of

tne It gall .'at.-'!. period, these ifMces i'.sued ate-' »I and at ti.'tfs
121

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conflicting instructions on several important issues. For example,

8 C.F.R. 245 a.2 (k)(4) states that an applicant should be able to

maintain himself and his family without recourse to public cash

assistance. Many applicants have handicapped US citizen children

who have received Supplemental Security Income (S.S.I.) payments

for the laintenance of the child. Under the regulation, these

individuals could be denied legalization because of the payments

for the child even if the applicant never received any benefit for

his own use. Applicants were told as much, and it was not until the

final months of the legalization period that INS clarified this

issue, stating that parents should not be disqualified because of

the S.S.I, payments for a handicapped child. Many families at that

point had already given up hope of applying.

Additional similar problems of interpretation arose in the

meaning of "known to the government11 aa used in 8 C.F.R. 245

a.1(d); of "brief casual and innocent departure" (8 C.F.R. 245 a.l

(g) ) • Theae areas where INS changed the interpretation of the

regulations or were ordered to do so by the courts so that the

regulations would not conflict with the meaning of the statute

(IRCA) nonetheless led to the dissuasion of applicants who would

have qualified under the law.

In the final months of the legalization period INS changed the

interpretation of these provisions and made them less restrictive.

However, Individual applicants did not learn of the subsequent

lessening of restrictions or did not have time to apply.

In this confusion of the meaning of provisions, family unity

is in danger of being a casualty. Social agencies that are

sponsoring ESL classes are hearing the queatlons and concerns for a

spouse, a parent, and/or a child who for any number of reasons is

yet an undocumented resident. A consequence of their mixed status

Is that not all able-bodied family members are able to work. The

havoc caused in families can be seen in the following Instances

taken from one social service agency in Houston:

- the main breadwinner of the family undocumented

the mother as the only eligible person for employment when

there are small children or babies in the home;

a 35 year old Yemen male, arrived in the US In December,

1977, with US citizen children born 11/84 and 1/88, married in

December, 1982, his wife without authorization to work, who loses

his job;

- a 41 year old Iranian man, married In 8/78 in Iran, arriving

in the US in September of 1978. His wife, who does not qualify, is

presently In Beauty School but without hope of attaining work upon

completion of her course.

There are also several Instances of family division that comes

about because of the illegal status of children of "legalized"

parents, sometimes both of them with work authorization. Among

such instances are the following:

a child soon to turn eighteen and riaking treatment as an

Independent adult;
122

the child of a Mexican fatally with an Immigration wait of

possibly years, with need to work and desire to attend college;

In relation to the question of child's status is that of

social security card issuance. According to a recent ruling, a

parent will not be able to claim a child as dependent without a

social security card. Some school districts, moreover, are

requiring social security cards as part of children's entrance

requirements in school. The latter policy seems In conflict with

the 1982 Supreme Court decision permitting all children, regardless

of their legal status, to attend public schools. In the face of

this insistence, parents are Intimidated and do not send their

children to school.

A aecond problem with the legalization procedure has been the

delay in processing applications already filed. Applications hare

been pending a year or more with no decisions rendered by the

legalization office. The inordinate delay in approving prlma facia

eligible cases has caused hardship to many families. Some of those

cases which have been pending the longest are cases with the

strongest documentation while other weaker cases have been approved

quickly. There appears to be little rhyme or reason to the

process. Families have not been able to plan for the future while

being kept in a state of uncertainty which appears to be

unnecessary.

The second principal question to be addressed is that of

employer sanctions. The consequences of employer sanctions are

multiple. The complication of two separate categories of persons

affected by work authorization requirements needa to be addressed.

On the one hand are those In process of applying for amnesty who

generally receive work authorization in due course. The exception

to this are those who filed for amnesty in the final days. AD INS

employee was reported as saying: "We know most of the amnesty

applications during the final days of filing are fraudulent, and we

are not going to issue work authorization cards to those people."

While the Deputy Director of INS in Houston has stated that there

are forty investigators enforcing the law, more than one part time

employee could be appointed to adjudicate work authorization

requests.

On the other are those applying for political asylum who face

major obstacles. In Hay of the present year, the Central American

Refugee Center in Houston (CARECEN) hsd 34 clients whose

application for work authorization under 8 C.F.R, 274 a.12 had gone

beyond 60 days without either an Issuance or a denial. Two of

2fqa \\, those 34 had been pending for more than a year, despite monthly

" certified letters to INS urging action by CARECEN*s attorney

Frances Tobin. Other local attorneys and organizations handling

refugee legal cases reported anywhere from one to twenty work

authorization applications which had gone beyond the 60 day limit

. permitted by 8 C.F.R. 274 a.13 without INS action. If INS has not

2'1 c^ denied an application within 60 days, the Individual is entitled hi

j^w to receive a work authorization card. It appears that INS
123

has averaged about one-half an employee to handle this matter of

work authorization applications. This is simply not sufficient.

In July. INS picked up rumors of an Inalnent Writ of Mandamus

being seriously considered by CARECEN and other local organizations

and private attorneys. Consequently, many work authorization cards

were issued within a period of one week. Yet, as of the beginning

of August, CARECEN still has seven individuals whose work

authorization applications have gone beyond 60 days. One of these

waa filed in January, 1988, three in February and three in March.

An August 3, 1986, certified letter to the Houston INS District

Office hae brought no response. As of August 13, there are five

additional such applications beyond the 60 day Halt.

The Issue of denial of work authorization is troublesome. The

same form letter is used for all denials ao that the reason for the

denial remains obscure. At CARECEN denials have been received by

individuals with such differing situations such as: a political

asylum case on appeal; and previously granted work authorization

merely requesting extension. In sum, the appeal for political

asylum becomes practically impossible if, while the natter la

pending, the petitioner cannot work.

The denials of work authorization requeats also appear to be

inconsistent and arbitrary. In July, CARECEN had an applicant who

was granted political asylum, yet his work authorization request

was denied. Two individuals whose cases were on appeal and who had

previously been granted work authorization were denied an extension

of that work authorization. By oversight, an application for the

aame person was submitted twice. One was denied and two days later

the identical application waa approved. CARECEN also received

final deportation ordera for two clients who had already received

legalization.

Whether Individuals have applied for amneaty or for political

asylum, a class of workers is being created from among them, who,

being treated as unauthorized, are subject to abuse in the work

place. Individuals have brought complaints to various social

service agencies of countless hours of overtime with no

compensation and of wages being reduced. An Instance Is that of a

person working for a landscaping firm whose pay waa reduced from $5

per hour to $3.50 and then required to work for ten additional

hours for no pay. Another client received a payroll check which

waa Impossible to cash. It seems that the company, immediately

after the deadline for filing for legalization, closed its bank

account and reorganized under another name, firing its workers

under the guise of going out of business, reopening the following

day with a different name doing the same business as usual. The

final paychecks were not honored by the bank. As recently as

August 17, the Diatrict Attorney's office of Harris County was

consulted concerning the case of four men defrauded of wages. The

Assistant District Attorney Jim NcLesr said that theft of service

cases have been handled through a special unit set up in the D.A.'s

office. He said that undocumented victims have accounted for from
124

30 to 50X of the cases the office has received since 1980.

"Unfortunately," he added, "the laws favor the employer who rips

off the workers."

Under the question of employer sanctions, one has to grapple

with the problem of which comes first, the work authorization card

or the social security card. Employers are requiring social

security cards while the work authorization cards are still to be

received. The Social Security Administration will not consider an

application for a social security card until the individual has

obtained his first employment authorization card from INS. The

minimum two-week wait often extends to several months. Just as

there was confusion among those who were applying for amnesty,

there is major confusion among employers over provisions of the

law. For instance, a woman who has worked for the same company

since before November, 1986, and who has filed for legalization and

was waiting for her work authorization was in danger of being

discharged. It took nearly an entire day to clarify to the

employer the rights of the woman. CARF.CEN learns of at least two

such incidents each week.

The social consequences of lack of work authorization for

refugees are bringing about subhuman conditions within our city.

One of the organizations which is a member of the Community Task

Force has a house in the southwest area of Houston in an area of

heavy concentration of Central American refugees, according to a

school of public health survey, 14,000 refugees within a mile and a

half squared. In the last six months, there has been a

considerable increase in the number of men coming for both

breakfast and supper. Many express the Impossibility of renting

apartments for lack of documented status. This wide-ranging

homelessness in turn leads to related social problems. Violence

has perceptively increased. In the past week, there were two

stabblngs in the neighborhood, and in the last month, two deaths

resulting from stabblngs. More persons have come to the community

center in need of first aid because of beatings.

Solicitation of both male and female prostitutes goes on even

in daylight. Two years ago, the heavily Central American area was

relatively free of prostitution. Women have been hired by a "club"

in the area and are required to drink a minimum of twelve beers a

night as they promote and accompany the drinking of the clients.

There have been incidences among the men who cone to the

community house of TB, bronchitis, gastro-intestinal Infections,

throat Infections, and depreasion. These men are drinking from

outside faucets, relieving themselves outdoors, and sleeping on the

ground in open fields. The population of street dwellers grows.

CONCLUSION

It is clear from the preceding pages that the spirit and

Intent of the law are not being met because of confusing and

changing INS policies and inadequate and often inappropriate

response to work authorization applications. INS personnel in

Houston have repreatedly boasted about the city's large number of
125

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"legalization" applicants, often taking credit for the overwhelming

participation. The so-called "success" of IRCA's two provisions,

the "legalization" program and Employer Sanctions, now rests on the

ability of INS to remedy Its contradictory policies at the local

level and insure civil rights and legal residence to those

immigrants as promised under IRCA.

89-730 - 89 - 5
126

Mr. MAZZOLI. Thank you very much, Mr. Vail. Mr. Lehr?

TESTIMONY OF MIKE LEHR, FEDERATION FOR AMERICAN

IMMIGRATION REFORM

Mr. LEHR. Chairman Mazzoli, Representative Bryant, thank you

for the opportunity to present testimony on behalf of the Federation for American Immigration Reform and the Austin Citizens

Committee for Fair Immigration. A full and complete statement

has been submitted for record. I will only summarize the statement. We applaud the committee's interest regarding IRCA's effects on our region.

FAIR has iRemployers who knowingly hire illegal aliens is the key to controlling illegal immigration. While employer sanctions have not yet been in operation long

enough to determine the extent to which employers are changing

their hiring practice, FAIR believes that strong enforcement of the

law in its critical early stages will ensure that employers change

their hiring practices. Simply put, once employers obey the law,

the job magnet drawing illegal aliens to the United States will

begin to turn off.

At present, we believe there are inadequate INS investigators to

enforce employer sanctions. Without enough investigators to do the

job, the message will quickly go out to employers that it is business

as usual.

Mr. Chairman, one of the principal safeguards included in IRCA

to prevent discrimination against foreign-looking employees is the

requirement that there be universal verification of every employee.

In other words, employers must ask every single employee for

work authorization documents, by completing an 1-9 verification

form, and cannot single out only those employees they suspect of

being unauthorized to work. The concept of universal verification

was well-debated during consideration of IRCA, and FAIR endorsed

it as an aid to the enforcement of sanctions.

We urge the committee to demand that INS uphold the principles of universal verification by fully prosecuting all paperwork

violations. If there is to be no discrimination at the workplace, employers must learn that every employee must be screened for work

authorization. Mr. Chairman, we want employer sanctions to work.

Congress properly recognized that if employer sanctions are to

work effectively, a secure verification system to determine work

eligibility must be developed. Without a fraud-proof work authorization system, illegal aliens will continue to circumvent the new

law by using a wide variety of fraudulent documents.

The General Accounting Office released a report in March 1988

entitled, "A New Role for the Social Security Card," that recommends use of the Social Security card as the only authorized work

eligibility document. GAO also suggests technological methods for

enhancing the security of the card.

The report offers ways to make the Social Security number application process less vulnerable to fraud. FAIR supports GAO's recommendations, and urges the committee to hold hearings to examine GAO's findings and look into the establishment of a secure verification system.
127

Mr. Chairman, the time has come for the United States to put

serious controls along its border. As a Texan, I am concerned about

the high number of illegal aliens apprehended on the border.

Before IRCA's passage, well over a million aliens were apprehended every year on the border, and, alarmingly, the number continues to reach the million mark even after IRCA's passage.

Although Congress mandated a 50 percent increase in the U.S.

Border Patrol, it has given INS only enough funding for a 20 percent increase in personnel.

In summary, Mr. Chairman, the promise of IRCA has yet to be

realized. We see inadequate enforcement of sanctions and repeated

calls to provide millions of visas for relatives of amnesty applicants.

F.A.I.R. opposes attempts to expand the amnesty provisions to include relatives of legalized aliens who themselves do not qualify for

amnesty. An expansion of the amnesty in this fashion would undermine the hard-fought compromise IRCA represents, a one time

only amnesty in exchange for employer sanctions and border enforcement.

Rewriting the terms of this compromise before the enforcement

side of the bargain has been met would be a serious breach of faith

to the American people, the majority of whom want illegal immigration stopped.

Thank you for the opportunity to present the views of FAIR and

the Austin Citizens Committee for Fair Immigration, and thank

you for conducting your hearings.

[The prepared statement of Mr. Lehr follows:]
128 '

STATEMENT OF THE FEDERATION FOR AMERICAN IMMIGRATION REFORM

BEFORE THE HOUSE IMMIGRATION SUBCOMMITTEE

FIELD HEARING, SAN ANTONIO, TEXAS

AUGUST 23, 198S

THANK YOU FOR THE OPPORTUNITY TO PRESENT TESTIMONY ON

BEHALF OF FAIR, THE FEDERATION FOR AMERICAN IMMIGRATION REFORM.

FAIR IS THE LARGEST NATIONAL NON-PROFIT ORGANIZATION WORKING TO

STOP ILLEGAL IMMIGRATION AND SET REASONABLE LEVELS OF LEGAL

IMMIGRATION. WE BELIEVE ILLEGAL IMMIGRATION RONS CONTRARY TO THE

BEST INTERESTS OF THIS COUNTRY PRIMARILY BECAUSE IT HARMS THE

WAGES AND WORKING CONDITIONS OF AMERICAN WORKERS.

I UNDERSTAND THE PURPOSE OF TODAY'S HEARING IS TO EXAMINE

THE PROGRESS OF THE IMMIGRATION REFORM AND CONTROL ACT OF 1986

(IRCA) , WHICH WAS SIGNED INTO LAW NEARLY 2 YEARS AGO. SINCE OUR

FOUNDING IN 1979, FAIR HAS WORKED HARD TO PROMOTE POLICIES THAT

WILL ENABLE THIS COUNTRY TO REGAIN CONTROL OF ITS BORDERS THROUGH

PASSAGE OF A FAIR, HUMANE, AND ENFORCEABLE IMMIGRATION LAW.

ALTHOUGH WE HAVE SERIOUS RESERVATIONS ABOUT THE AMNESTY

PROVISIONS, WE SUPPORTED PASSAGE OF IRCA IN THE SPIRIT OF

COMPROMISE.

IRCA WAS SOLD TO THE AMERICAN PEOPLE AS A PROMISE THAT

ILLEGAL IMMIGRATION WILL BE CURBED THROUGH INCREASED BORDER

ENFORCEMENT AND A SYSTEM OF PENALTIES AGAINST EMPLOYERS WHO

KNOWINGLY HIRE ILLEGAL ALIENS. THE QUESTION IS: HAS THIS
129

PROMISE BEEN KEPT?

AS A TEXAN, I WOULD LIKE TO POINT OUT A FEW FACTS ABOUT

TEXAS AND IMMIGRATION:

0 ACCORDING TO A MARCH 1987 DALLAS TIMES-HERALD POLL, 77.1

PERCENT OF TEXAS RESIDENTS BELIEVE EMPLOYERS SHOULD BE FINED

FOR HIRING ILLEGAL ALIENS.

0 ACCORDING TO A JANUARY 1988 SOUTHERN PRIMARY POLL CONDUCTED

BY THE ATLANTA JOURNAL AND CONSTITUTION. 54 PERCENT OF

ALL TEXAS RESIDENTS BELIEVE IT IS TOO EASY TO IMMIGRATE TO

THE U.S.; ONLY 7 PERCENT SAID CURRENT LAW IS TOO RESTRICTIVE.

O AN APRIL 1984 SPANISH INTERNATIONAL NETWORK EXIT POLL FOUND

THAT 60 PERCENT OF DEMOCRATIC HISPANIC VOTERS IN TEXAS FAVOR

FINtIS FOR EMPLOYERS WHO KNOV'INGLY HIRE ILLEGAL ALIENS.

0 ACCORDING TO A 1984 STUDY BY THE UNIVERSITY OF TEXAS LBJ

SCHOOL OF PUBLIC AFFAIRS, THE CITIES OF SAN ANTONIO, DALLAS,

AUSTIN, EL PASO, HOUSTON, AND MCALLEN SPEND MORE ON SOCIAL

SERVICES THAN THEY COLLECT IN TAXES FROM ILLEGAL ALIENS.

0 IN 1986, 58 PERCENT OF INDIGENT BIRTHS PAID FOR BY HIDALGO

COUNTY TAXPAYERS WERE TO ILLEGAL ALIEN MOTHERS.

0 THE SAN ANTONIO DISTRICT OFFICE OF THE U.S. IMMIGRATION

SERVICE REPORTS THAT 85 PERCENT OF THE COMPLAINTS IT

RECEIVES COME FROM HISPANIC AMERICANS AND LEGAL IMMIGRANTS

WHO HAVE LOST THEIR JOBS TO ILLEGAL ALIENS.

0 LAST YEAR, IN EL P »S0 ALONE, THE U.S. BORDER PATROL MADE

OVER 230,000 ILLEGAL ALIEN APPREHENSIONS.

CLEARLY, ILLEGAL IMMIGRATION HAS A MAJOR IMPACT ON TEXAS,

AND WE APPLAUD THE COMMITTEE'S INTEREST IN ITS EFFECTS ON OUR
130

REGION.

ARE EMPLOYER SANCTIONS WORKIHQ?

FAIR HAS ALWAYS BELIEVED THAT PENALIZING EMPLOYERS WHO

KNOWINGLY HIRE ILLEGAL ALIENS IS THE KEY TO CONTROLLING ILLEGAL

IMMIGRATION. WHILE EMPLOYER SANCTIONS HAVE NOT YET BEEN IN

OPERATION LONG ENOUGH TO DETERMINE THE EXTENT TO WHICH EMPLOYERS

ARE CHANGING THEIR HIRING PRACTICES, FAIR BELIEVES THAT STRONG

ENFORCEMENT OF THE LAW IN ITS CRITICAL EARLY STAGES WILL ENSURE

THAT EMPLOYERS CHANGE THEIR HIRING PRACTICES. SIMPLY PUT, ONCE

EMPLOYERS OBEY THE LAW, THE JOB MAGNET DRAWING ILLEGAL ALIENS TO

THE UNITED STATES WILL BEGIN TO TURN OFF.

BUT IF THIS LAW IS TO MARE A DIFFERENCE, CONGRESS MUST

PROVIDE ENOUGH FUNDS FOR THE IMMIGRATION SERVICE TO ENFORCE THE

LAW. TO DATE, CONGRESS HAS NOT DONE SO. AND THE BUDGET FIGURES

FOR FISCAL 1989 ARE NOT PROMISING: THEY ARE FAR BELOW WHAT THE

INS ASKED FOR AND NEEDS. THE IMMIGRATION SERVICE

REQUESTED $859 MILLION TO DO ITS JOB IN FY89, BUT THE HOUSE OF

REPRESENTATIVES PROPOSES ONLY $741 MILLION WHILE THE SENATE

PROPOSES $804 MILLION. ALTHOUGH THE FINAL AMOUNT WILL BE DECIDED

BY THE APPROPRIATIONS CONFEREES IN SEPTEMBER, IT IS UNLIKELY THE

INS REQUEST WILL BE MET. WE URGE THIS COMMITTEE TO USE ITS GOOD

OFFICES TO TRY TO ENSURE THAT THE INS RECEIVES THE FULL

IRCA-AUTHORIZED LEVELS.

AT PRESENT, WE BELIEVE THERE ARE INADEQUATE INS

INVESTIGATORS TO ENFORCE EMPLOYER SANCTIONS. SINCE 1976, THE

NUMBER OF INS INVESTIGATORS HAD DROPPED BY 38 PERCENT. WITH
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PASSAGE OF IRCA IN 1986, THE NUMBER OF NEW INVESTIGATORS ADDED

(SOME 400 AGENTS) IS JUST NOW RETURNING TO THE LEVEL IT WAS TEN

YEARS AGO! WITH ALL OF THE NEW RESPONSIBILITIES REQUIRED OF THE

INS UNDER IRCA, HOW IS THE INS SUPPOSED TO PROPERLY ENFORCE THE

LAW WITHOUT A SUBSTANTIAL INCREASE IN AGENTS OVER 1976 LEVELS?

TO MAKE MATTERS WORSE, THE INS IS CONTINUING TO DEVOTE 25

PERCENT OF ITS INVESTIGATIVE FORCE TO EDUCATING EMPLOYERS ABOUT

THE REQUIREMENTS UNDER IRCA, RATHER THAN USING THESE

INVESTIGATORS TO ENFORCE EMPLOYER SANCTIONS. MR. CHAIRMAN, THE

ONE-YEAR EDUCATION PERIOD FOR EMPLOYERS TO LEARN ABOUT THE

SANCTIONS PROVISIONS EXPIRED ON JUNE 1. 1988. THE INS DID A

REMARKABLE JOB DURING THAT PERIOD TO PUBLICIZE THE LAW AND INFORM

EMPLOYERS ABOUT THE PROHIBITION ON HIRING PERSONS UNAUTHORIZED TO

WORK IN THE UNITED STATES. INFORMATION ABOUT THE LAW WAS ALSO

WIDELY DISSEMINATED BY EMPLOYER ORGANIZATIONS AND NEWSPAPERS

ACROSS THE COUNTRY. BUT THE EDUCATION PERIOD IS OVER. AND THE

INS SHOULD NOW USE ITS FULL CONTINGENT OF INVESTIGATORS TO

ENFORCE THE LAW. WITH SO FEW INVESTIGATORS AVAILABLE AS IT IS,

THE INS CAN ILL AFFORD TO SQUANDER 25 PERCENT OF ITS TOP AGENTS

ON COURTESY CALLS TO EMPLOYERS•NOT IF THIS LAW IS TO WORK AS

CONGRESS INTENDED, AND THE AMERICAN PEOPLE OVERWHELMINGLY HOPE.

WITHOUT ENOUGH INVESTIGATORS TO DO THE JOB, THE MESSAGE WILL

QUICKLY GO OUT TO EMPLOYERS THAT IT'S "BUSINESS AS USUAL."

ANTI-DISCRIMINATION PROVISIONS

MR. CHAIRMAN, ONE OF THE PRINCIPLE SAFEGUARDS INCLUDED IN

IRCA TO PREVENT DISCRIMINATION AGAINST FOREIGN-LOOKING EMPLOYEES

IS THE REQUIREMENT THAT THERE BE UNIVERSAL VERIFICATION OF EVERY
132

EMPLOYEE. IN OTHER WORDS, EMPLOYERS MOST ASK EVERY SINGLE

EMPLOYEE FOR WORK AUTHORIZATION DOCUMENTS (BY COMPLETING AN 1-9

VERFICATION FORM), AND CANNOT SINGLE OUT ONLY THOSE EMPLOYEES

THEY SUSPECT OF BEING UNAUTHORIZED TO WORK. THE CONCEPT OF

UNIVERSAL VERIFICATION WAS WELL-DEBATED DURING CONSIDERATION OF

IRCA, AND FAIR ENDORSED IT AS AN AID IN THE ENFORCEMENT OF

SANCTIONS.

RECENTLY, HOWEVER, THE INS INDICATED THAT THEY WILL NOT

PROSECUTE EMPLOYERS FOR A PAPERWORK VIOLATION ALONE (I.E., FOR

FAILING TO KEEP 1-9 FORMS ON EVERY EMLOYEE) , BUT WILL DO SO ONLY

IF THERE IS AN ACCOMPANYING HIRING VIOLATION. I QUOTE FROM THE

JULY 28, 1988 ISSUE OF THE IMMIGRATION POLICY & LAW JOURNAL,

WHICH REPORTED THE FOLLOWING:

"CRAIG DEBERNARDIS, AN ATTORNEY IN THE BALTIMORE GENERAL

COUNSEL'S OFFICE [OF INS], SAID THE INS WOULD ONLY FINE AM

EMPLOYER FOR FAILING TO FILL OUT THE 1-9 EMPLOYMENT

VERIFICATION FORMS IF THE EMPLOYER ALSO WAS KNOWINGLY

EMPLOYING ILLEGAL ALIENS. THIS "COUPLING" PROCEDURE IS

NATIONAL POLICY AND COMES "DIRECTLY FROM THE DESX OF INS

COMMISSIONER ALAN NELSON," HE SAID."

MR. CHAIRMAN, FAIR OPPOSES THE INS' REFUSAL TO PROSECUTE

PAPERWORK VIOLATIONS ALONE. ONCE EMPLOYERS BECOME AWARE THAT

PAPERWORK VIOLATIONS ARE NOT ENFORCED SO LONG AS NO ILLEGAL

ALIENS ARE HIRED, THEY WILL QUICKLY LEARN TO AVOID HIRING ANYONE

WHO THEY SURMISE IS ILLEGAL JUST TO AVOID FILLING OUT I-9'S. AS

SENATOR ALAN SIMPSON IN HIS CHARACTERISTIC HUMOR OFTEN STATED,

"EVEN BALD-HEADED, WHITE GUYS LIKE ME" WILL HAVE TO BE ASKED FOR

PROOF OF WORK AUTHORIZATION.

WE URGE THE COMMITTEE TO DEMAND THAT INS UPHOLD THE

PRINCIPLES OF UNIVERSAL VERIFICATION BY FULLY PROSECUTING ALL
133

PAPERWORK VIOLATIONS. IF THERE IS TO BE NO DISCRIMINATION AT THE

WORKPLACE, EMPLOYERS MUST LEARN THAT EVERY EMPLOYEE MUST BE

SCREENED FOR WORK AUTHORIZATION.

THERE ARE THOSE WHO WILL MAKE THE CLAIM THAT EMPLOYER

SANCTIONS HAVE ALREADY CAUSED EMPLOYERS TO DISCRIMINATE AGAINST

FOREIGN-LOOKING JOB APPLICANTS. BASED ON THE EVIDENCE THUS FAR,

THERE HAVE BEEN RELATIVELY FEW DISCRIMINATION COMPLAINTS FILED

WITH THE SPECIAL COUNSEL AT THE DEPARTMENT OF JUSTICE.

FURTHERMORE, THE U.S. GENERAL ACCOUNTING OFFICE WHICH IS STUDYING

THE ISSUE OF DISCRIMINATION FOUND NO EVIDENCE OF DISCRIMINATION

IN THEIR FIRST REPORT PUBLISHED LAST NOVEMBER.

FAIR URGES THE COMMITTEE TO BE SKEPTICAL OF GENERALIZED

ASSERTIONS OF DISCRIMINATION WHICH COME FROM GROUPS WHO WERE

OPPOSED TO EMPLOYER SANCTIONS TO BEGIN WITH. EMPLOYER SANCTIONS

WERE NOT DESIGNED TO ERADICATE DISCRIMINATION IN THE LABOR

MARKET; SUCH DISCRIMINATION OCCURED PRIOR TO EMPLOYER SANCTIONS

AND IS LIKELY TO OCCUR AFTERWARD. IT IS FAIR'S ASSERTION,

HOWEVER, THAT EMPLOYER SANCTIONS HAS NOT EXACERBATED LABOR MARKET

DISCRIMINATION IN THE UNITED STATES, AND IN FACT HAS ALLEVIATED

DISCRIMINATION AGAINST AMERICAN WORKERS WHO IN THE PAST HAVE BEEN

DISCRIMINATED AGAINST BY EMPLOYERS WHO ACTIVELY SOUGHT OUT

ILLEGAL ALIEN WORKERS.

MR. CHAIRMAN, WE WANT EMPLOYER SANCTIONS TO WORK.

MEED FOR A 3ECURE I.D. SYSTEM

CONGRESS PROPERLY RECOGNIZED THAT IF EMPLOYER SANCTIONS ARE

TO WORK EFFECTIVELY, A SECURE VERIFICATION SYSTEM TO DETERMINE

WORK ELIGIBILITY MUST BE DEVELOPED. WITHOUT A FRAUD-PROOF WORK
134

AUTHORIZATION SYSTEM, ILLEGAL ALIENS WILL CONTINUE TO CIRCUMVENT

THE NEW LAW BY USING A WIDE VARIETY OF FRAUDULENT DOCUMENTS.

AS IT STANDS NOW, EMPLOYERS ARE MERELY ASKED TO CHECK THAT

AN EMPLOYEE'S WORK DOCUMENTS "APPEAR GENUINE" • A VERY LOOSE

STANDARD, SINCE EMPLOYERS CANNOT BE EXPECTED TO DISTINGUISH

BETWEEN REAL AND COUNTERFEIT DOCUMENTS. CURRENTLY, AN INDIVIDUAL

MAY SUBMIT ANY OF 21 DOCUMENTS TO AN EMPLOYER TO PROVE IDENTITY,

AND ANY OF 17 DOCUMENTS TO PROVE EMPLOYMENT ELIGIBILITY. SUCH A

WIDE ARRAY OF ACCEPTABLE DOCUMENTS VIRTUALLY ENSURES A HIGH RATE

OF DOCUMENT FRAUD.

THE GENERAL ACCOUNTING OFFICE (GAO) RELEASED A REPORT IN

MARCH 1988 ENTITLED "A NEW ROLE FOR THE SOCIAL SECURITY CARD"

THAT RECOMMEN03 USE OF THE SOCIAL SECURITY CARD AS THE ONLY

AUTHORIZED WORK ELIGIBILITY DOCUMENT. GAO ALSO SUGGESTS

TECHNOLOGICAL METHODS FOR ENHANCING THE SECURITY OF THE CARD.

THE REPORT OFFERS WAYS TO MAKE THE SOCIAL SECURITY NUMBER

APPLICATION PROCESS LESS VULNERABLE TO FRAUD. FOR EXAMPLE, GAO

RECOMMENDS THAT SSA'S PROCESS OF ISSUING SOCIAL SECURITY CARDS TO

ALIENS WITH TEMPORARY WORK AUTHORIZATION BE REVISED TO INCLUDE AN

EXPIRATION DATE ON THE CARD ISSUED TO THOSE ALIENS. GAO ALSO

SUGGESTS THAT SSA HAVE THE INS COMPLETE AN ALIEN'S APPLICATION

FOR A SOCIAL SECURITY CARD AND CERTIFY THE ALIENS ELIGIBILITY TO

WORK. CURRENTLY, AN ALIEN CAN OBTAIN A SOCIAL SECURITY NUMBER

FROM SSA SIMPLY BY PRESENTING EASILY COUNTERFEITED INS DOCUMENTS.

FAIR SUPPORTS. GAO'S RECOMMENDATIONS AND URGES THE COMMITTEE

TO HOLD HEARINGS TO EXAMINE GAO'S FINDINGS AND LOOK INTO THE

ESTABLISHMENT OF A SECURE VERFICATION SYSTEM. FAIR BELIEVES
135

CONGRESS SHOULD NOT DELAY IN PASSING LEGISLATION TO REQUIRE

EMPLOYERS TO MAKE A TELEPHONE CHECK OF A NEW HIRE'S SOCIAL

SECURITY NUMBER, IN MUCH THE SAME WAY STORES NOW VALIDATE CREDIT

CARD PURCHASES.

INCREASES TO THE BORDER PATROL

MR. CHAIRMAN, THE TIME HAS COME FOR THE UNITED STATES TO PUT

SERIOUS CONTROLS ALONG THE SOUTHERN BORDER. AS A TEXAN, I AM

CONCERNED ABOUT THE HIGH NUMBER OF ILLEGAL ALIENS APPREHENDED ON

THE BORDER. BEFORE IRCA'S PASSAGE, WELL OVER A MILLION ALIENS

WERE APPREHENDED EVERY YEAR ON THE BORDER, AND ALARMINGLY THE

NUMBER CONTINUES TO REACH THE MILLION MARK EVEN AFTER IRCA'S

PASSAGE.

ALTHOUGH CONGRESS MANDATED A 50 PERCENT INCREASE IN THE U.S.

BORDER PATROL, IT HAS GIVEN INS ONLY ENOUGH FUNDING FOR A 20

PERCENT INCREASE IN PERSONNEL. BUT EVEN THAT SLIGHT INCREASE IS

DECEPTIVE. BECAUSE THE 1989 INS BUDGET HAS BEEN FROZEN AT 1988

LEVELS, INS WILL LOSE MOST OF THIS YEAR'S "INCREASE" THROUGH

NORMAL AGENT ATTRITION NEXT YEAR. THE END RESULT: INSTEAD OF A

50 PERCENT INCREASE, THERE WILL BE LITTLE OR NO INCREASE IN

BORDER PATROL ENFORCEMENT. THIS IS SIMPLY UNACCEPTABLE. IT'S

TIME TO PUT A CREDIBLE DETERRENT ALONG OUR SOUTHERN BORDER.

rRAUD IN THE SAW PROGRAM

THE SEASONAL AGRICULTURAL WORKER PROGRAM, ADOPTED IN THE

CLOSING HOURS OF LEGISLATIVE DEBATE AND THE PRODUCT OF BACK ROOM

COMPROMISE, HAS LIVED UP TO ALL OF OUR WORST FEARS. FRAUD IN THE

SEASONAL AGRICULTURAL WORKER (SAW) AMNESTY PROGRAM HAS REACHED

ENORMOUSLY HIGH LEVELS • APPROACHING 50 PERCENT IN SOME REGIONS.
136

IN ORDER TO QUALIFY FOR THE AMNESTY, AN APPLICANT NEED ONLY PROVE

HAVING WORKED JUST 90 DAYS A YEAR FOR 3 YEARS IN SEASONAL

AGRICULTURE. THE NEW YORK TIMES REPORTED IN AN ARTICLE OF JUNE

20, 1988: "AMERICAN OFFICIALS TELL OF APPLICANTS WHO IN THEIR

QUALIFYING INTERVIEWS SAY THEY CLIMBED LADDERS TO PICK

WATERMELONS OR STRAWBERRIES. OTHER SUPPOSEDLY VETERAN FARM

WORKERS CANNOT RECALL THE PLANTING OR HARVESTING SCHEDULE FOR

ONIONS OR ASPARAGUS." LABOR EXPERTS PREDICT THAT THE TOTAL

NUMBER OF SAW APPLICANTS, NOW ESTIMATED AT OVER ONE MILLION, WILL

EXCEED THE MIGRANT AGRICULTURAL WORKER POPULATION BY 100 PERCENT,

REVEALING THE HUGE NUMBER OF NON-AGRICULTURAL WORKERS WHO ARE

FALSELY APPLYING FOR AN AMNESTY INTENDED ONLY FOR AGRICULTURAL

WORKERS.

THE PROGRAM IS ALSO A DISASTER FOR THE AMERICAN FARM

WORKER. ACCORDING TO THE SAN JOSE MERCURY-NEWS (JULY 10, 1988) :

"WE HAVE AN EXCESS OF WORKERS EVERYWHERE," SAID MARY LOPEZ,

NATIONAL DIRECTOR 07 IMMIGRATION 70S THE MARTIN LUTHER KING,

JR. FARMWORKERS 7UND, AN ARM 07 THE UNITED 7ARM WORKERS

UNION. "AND IT'S SLAVE LABOR .... THEY'RE PICKED OVER

LIKE CATTLE."

"THERE'S 10 PEOPLE TOR ONE JOB," AGREED MICHAEL MUNIZ, AN

ATTORNEY WITH THE CALIFORNIA RURAL LEGAL ASSISTANCE IN

GILROY. "GO TO THE MIGRANT CAMPS AND HALF 07 THE PEOPLE

AREN'T WORKING."

WAGES, MEANWHILE, ARE FALLING FROM PREVIOUS YEARS. IN THE

SALINAS VALLEY, TOR EXAMPLE, TOP WAGES TOR A LETTUCE PICKER

IN GOOD YEARS COULD RUN MORE THAN $1 A CARTON. THIS YEAR,

HOWEVER, MANY GROWERS ARE PAYING FROM 55 TO 65 CENTS. . .

THE SAW PROGRAM HAS TURNED INTO A FARCE. MOST APPLICATIONS

ARE PROCESSED EVEN THOUGH THE MAJORITY ARE SUSPECTED TO BE

FRAUDULENT BECAUSE THE INS SIMPLY DOES NOT HAVE ENOUGH

INVESTIGATORS TO WEED OUT FRAUD.

WITH SUCH A HIGH RATE OF FRAUD IN EVIDENCE, FAIR CALLS ON
137

THE CONGRESS TO REPEAL THE SECOND-PHASE "REPLENISHMENT

AGRICULTURAL WORKER" (RAW) PROGRAM, BEFORE IT BECOMES A ROLLING

AMNESTY IN WHICH NEARLY ANYONE WHO APPLIES WILL BE ABLE TO

EVENTUALLY QUALIFY FOR CITIZENSHIP.

CONCLUSION

IN SUM, MR. CHAIRMAN, THE PROMISE OF IRCA HAS YET TO BE

REALIZED. WE SEE INADEQUATE ENFORCEMENT OF SANCTIONS AND

REPEATED CALLS TO PROVIDE MILLIONS OF VISAS FOR RELATIVES OF

AMNESTY APPLICANTS. FAIR OPPOSES ATTEMPTS TO EXPAND THE AMNESTY

PROVISIONS TO INCLUDE RELATIVES OF LEGALIZED ALIENS WHO

THEMSELVES DO NOT QUALIFY FOR AMNESTY. AN EXPANSION OF THE

AMNESTY IN THIS FASHION WOULD UNDERMINE THE HARD-FOUGHT

COMPROMISE IRCA REPRESENTS: A ONE-TIME ONLY AMNESTY IN EXCHANGE

FOR EMPLOYER SANCTIONS AND BORDER ENFORCEMENT. REWRITING THE

TERMS OF THIS COMPROMISE BEFORE THE ENFORCEMENT SIDE OF THE

BARGAIN HAS BEEN MET WOULD BE A SERIOUS BREACH OF FAITH TO THE

AMERICAN PEOPLE, THE MAJORITY OF WHOM WANT ILLEGAL IMMIGRATION

STOPPED.

THANK YOU FOR THIS OPPORTUNITY TO PRESENT THE VIEWS OF FAIR.

10
138

Mr. MAZZOLI. Mr. Lehr, thank you very much, and thank all of

you for good testimony and for honoring the time problems that we

have today. And I will yield myself five minutes to start the questioning.

Let me•I believe it was Mr. Vail, you brought up an interesting

kind of problem, and that is that some school districts in Texas are

asking that all school age children have a Social Security card

before that child is admitted. Is that correct?

Mr. VAIL. Not just Texas. I worked up in Washington in the past

year as well, and I am familiar with

Mr. MAZZOLI. Washington, DC?

Mr. VAIL. Washington, DC. And I am familiar•in Washington,

as well•not in Washington but in Virginia•that there are school

districts in Virginia that have also told children they would not be

accepted.

Mr. MAZZOLI. YOU have to move that microphone. But you say

that there are districts•are you aware of any child not permitted

to enter school because that child does not have a Social Security

card?

Mr. VAIL. In the cases that I have become aware of, I have immediately contacted the school district and advised them of Plylor

[phonetic] v. Doe, which is the case that ensures that they be permitted. And in those

Mr. MAZZOLI. Have you found any school districts ignoring that

court case and still rejecting the students? They permit the students

Mr. VAIL. They permit the students, but

Mr. MAZZOLI. •because you understand the problem we have.

That Social Security card requirement is under the 1986 Tax Act,

and it is meant to be a protection against multiply listing children

on income tax returns for deduction purposes. So it is meant as another one of these efforts to make sure that people pay what they

should pay in income tax.

But I would like to have any information any of you all could

give me, and anyone in the room, where possibly this situation of a

requirement that a child have a Social Security card is being used

to keep the child out of school or deny the child some other kind of

benefits, maybe inoculations, or just anything where that could

come up, because•that is not our bailiwick, but it is certainly

something we would convey to the Ways and Means Committee.

Mr. Dubove?

Mr. DUBOVE. Congressman Mazzoli, my director, Norma Plascencia Almanza, who is here, worked extensively with the Texas Education Agency, with the school districts throughout the State, on

that issue. That question came up repeatedly, and it began as early

as last September.

And we were promised then that a letter would be sent out to

the school districts assuring them that no Social Security number

was required. That didn't happen, and, in fact, at one point earlier

this year, when someone was enrolling in a school, they required

the Social Security number for their child.

When the person asked why, they said, it is the new immigration

law that requires it. They were under the impression the new immigration law required Social Security numbers.
139

But if you would like me to yield the floor•or I don't know how

you want to address it, but she could address it extensively.

Mr. MAZZOLI. Well, I would certainly take anything in writing.

But is it your understanding that any child has been denied entry

into school at this time?

Ms. PLASCENCIA. Yes, sir.

Mr. MAZZOLI. If they didn't•the school year hasn't begun yet.

Ms. PLASCENCIA. This was last year, this last year, during the

whole year. In each of those cases

Mr. MAZZOLI. Would you identify yourself for the record? If you

would identify your name.

Ms. PLASCENCIA. Sure. My name is Norma Plascencia Almanza,

and I am director of the southwest office of the National Forum.

And it was happening throughout the past year.

Mr. MAZZOLI. NOW, are these citizen children or non-citizen children?

Ms. PLASCENCIA. I would say that in most cases they were probably non-citizen children.

Mr. MAZZOLI. Who still have a right to be educated; I understand

that. But, I mean, these are non-citizen children?

Ms. PLASCENCIA. Exactly.

Mr. MAZZOLI. SO what did they do during the year? For one

thing, let me ask you, did you get to the school superintendents

and bring it to their attention?

Ms. PLASCENCIA. It was brought to the attention first locally,

and

Mr. MAZZOLI. Yes. And what happened eventually? The kids still

were not permitted to enter?

Ms. PLASCENCIA. They were permitted to enter.

Mr. MAZZOLI. I think that question I said was, were school children not permitted to enter the school for not having the Social Security card.

Ms. PLASCENCIA. In those cases where we learned of children•

and I was in El Paso on August 5

Mr. MAZZOLI. NOW, the question that I asked was, are you aware

of any child who didn't have a Social Security card and was denied

entry to school.

Ms. PLASCENCIA. In El Paso, on August 3-4, we heard from the

audience there that there was such a case.

Mr. MAZZOLI. Well, that is•OK.

Ms. PLASCENCIA. In each of those cases, what happens is, as we

learn of it, it can be rectified.

Mr. MAZZOLI. All right. They let them into school, though? Yes, I

understand. Well, that is the way it ought to be. And it would seem

impossible that a school superintendent, or even a local district director of a school, would be•but I appreciate very much your•

would you spell your last name for the record, please?

Ms. PLASCENCIA. Sure. It is P-L-A-S-C-E-N-C-I-A.

Mr. MAZZOLI. Thank you very much. We appreciate it. May I ask

you, Mr. Vail, another thing•and that is one of the other points

that you didn't mention in your statement, I think, but in your prepared remarks•the delay in processing legalization applications,

and what problems that produces, in the fact that these people

can't work in some cases.
140

Have you, and maybe Mr. Dubove and Mr. Lehr, anyone•are

you satisfied with the speed at which the papers are now being

processed and applications are being processed, or have you

thoughts on that?

Mr. VAIL. Legalization?

Mr. MAZZOLI. Yes.

Mr. VAIL. I have cases that are over a year old that haven't been

processed yet, and in a number of cases

Mr. MAZZOLI. Has a work permit been extended in each of these

cases?

Mr. VAIL. The work I have; yes. At the local level in the Houston

district, I have to say that they have been fairly easy to deal with.

Mr. MAZZOLI. All right. But when they go above•is that the

idea?

Mr. VAIL. The problem at the regional level is what I see, because the Houston district

Mr. MAZZOLI. •because the 18 months doesn't start until the

people are approved and get their temporary green cards. So, I

mean, the delays in the processing of the application are, of course,

difficult if you are trying to unite your family if they are somewhere else.

Mr. Dubove?

Mr. DUBOVE. The problem•I had a phone call on this last week

with a similar situation, someone over a year was still waiting to

find out what the status of his amnesty application was. And his

real concern

Mr. MAZZOLI. I wish you wouldn't use amnesty.

Mr. DUBOVE. I am sorry. I am trying to

Mr. MAZZOLI. Legalization, please.

Mr. DUBOVE. Legalization. I will try to make that a conscious

effort.

Mr. MAZZOLI. Please, legalization.

Mr. DUBOVE. On his legalization application. And the problem he

was having with us now•he was wanting me to call his employer,

and I told him we can't do it•is that his employer was starting to

get real suspicious about his work permit, because he had had to•

this was his third extension on the work permit, and he was•well,

when are you going to get your real papers, your documents that

are good?

And, of course, this concern is multiplied because of the raids we

have had in Austin recently, and the fines coming down. And so he

was concerned about losing his job. And this was just one phone

call.

I spoke with Congressman Pickle's office, with his staff there,

who get these type of phone calls every week, of people wanting to

know the status of their application; because they are over a year

old, they have had to get renewed work authorizations.

Mr. MAZZOLI. Well, that is something that we are going to get

into back when we get to Washington, because it is true that everybody started off from, you know, ground zero here, and it is very

difficult, but now things should be pretty well clicking along, and

they probably should produce quicker.

My time is expired. The gentleman is recognized.
141

Mr. BRYANT. I would like to inquire about the delays, in terms of

what you have seen. Your explanations for why there is confusion,

Mr. Vail, seem to be rational. Do you have any theories for why

these delays exist?

Mr. VAIL. Delays in processing the legalization applications?

Mr. BRYANT. Right.

Mr. VAIL. I am not certain, because there doesn't seem to be any

rhyme or reason to it. The applications that were submitted four or

five months ago•no, six or seven months ago now approved, applications that are submitted in May of 1987, June of 1987, not approved. And I am not just talking about one; I am talking 20, 30,

just in my office, that were submitted during•that are not approved.

And all I know is that I don't put the blame at the local office. It

is somewhere higher up, at the regional level. There seems to be

some kind of problem there. And it

Mr. BRYANT. What is the typical explanation when you have inquired about the reason for the delay? What do they tell you?

Mr. VAIL. You will get a letter•if you inquire at the region, you

will get a form letter back from the region stating that your application is pending. If you go to the local office, they will call up the

region, and they will get the verbal response, the application is

pending.

And so you don't get an explanation, just that it is pending. And

I have no idea why that is. And I don't get an explanation.

Mr. BRYANT. Mr. Dubove?

Mr. DUBOVE. We don't get one, either. All we can do is just keep

calling up to the regional and find out where the application is.

Mr. BRYANT. In the course of dealing with these matters where

there are contentions with the INS, do they display an adversarial

attitude that implies that their job is to keep people out, and your

job is to get people in; or do they not display that kind of an attitude? Do they have more of an even-handed attitude?

Mr. VAIL. I would say that in my experience dealing with the legalization office, my experience in Houston has been that it is not

really adversarial that much. At the district office, when trying to

get other kinds of benefits, whether it is employment authorization

for somebody that has an asylum claim pending, or even going to

an asylum interview, which shouldn't be adversarial at all, it is extremely adversarial.

And so, to me, there is a completely different attitude in both

places. And I am not certain why that is.

Mr. DUBOVE. If I could expand on that, the legalization office

that we have worked with in Austin has been wonderful. We have

had a great chief legalization officer.

On the flip side, what I discussed in my testimony about that

raid that occurred in Austin, subsequent to that raid, consistent

with Section 3(c) of IRCA that allows for a community task force to

investigate these sort of things, we set up a meeting between Congressman Pickle's office, Congressman Bustamante's office, and

Senator Bentsen's office, as well as the two QDEs involved with

their clients being picked up, as well as with two attorneys, and

the INS district office here in San Antonio who was responsible for

the raid.
142

They agreed to participate in the meeting, and we could ask

what the INS procedures were going to be during employer-sanctioned enforcement raids. That way we would all understand; we

would be playing by the same rules and have a level playing field.

I.N.S. agreed to that meeting. They would send their district

counsel and someone from enforcement; they are the people in

charge of enforcement. The afternoon before the meeting was to

take place, the INS district office called back, said they would not

attend the meeting, and then listed a set of conditions before they

would meet with us to discuss this information.

Mr. BRYANT. What came of that?

Mr. DUBOVE. I am sorry?

Mr. BRYANT. They gave you conditions. Then what happened

next?

Mr. DUBOVE. The two conditions were, one, that they wanted all

questions in writing in advance; and two, that the meeting would

have to take place in San Antonio rather than Austin, though all

the parties that had been affected were in Austin.

Subsequent to that, we have put together in writing a list of

questions, submitted them to Senator Bentsen's staff, who was handling that, and we are still waiting. But, of course, it has been

months now.

What we tried initially is to find out within days•our big concern at that raid, in addition to what the status of the people were

that had been picked up is, who else might have been•since the

people hadn't been given the chance to call their QDEs and no one

had been notified, to find out a list of the people who had been

picked up to find out if any other amnesty applicants handled

through a QDE might have been picked up, and just to find out

what their procedure was going to be with people who were picked

up that were amnesty applicants and had a prima facie case.

Mr. BRYANT. This sounds like it might have some connection to

the reason for confusion on the part of some of the people that are

giving advice to the legalization applicants. I mean, a pattern of

confusion seems to be emerging.

And I am curious about what you have seen there•and we are

going to have to ask the INS these questions, of course, directly•

but what you have seen there that might give you a hint about

why there is confusion, why they can't give you these answers directly.

Do you think they don't know, or do you think that they are

avoiding answering these questions because they believe it gives

them a strategic advantage over you in their later dealings?

Mr. DUBOVE. Well, over us. But, you know, this meeting was

called in conjunction with Congressional staff people•Senator

Bentsen's office, Congressmen Bustamante and Pickle's offices.

These aren't just grass roots advocates trying to find out more information; these are people who have direct constituent concerns,

who want to find out what the program is going to be.

In addition, we were talking about employers who had been directly affected, who had had property confiscated as a result of

that raid, who wanted to know what was going to happen to their

pickup and their trucks that had been confiscated. To be real

honest, I think INS was stonewalling us.
143

Mr. BRYANT. OK. I have no more questions.

Mr. MAZZOLI. Thank you very much. Let me•I want to come

back to that point. But just for a second, Mr. Lehr, you brought up

an interesting thing in your statement. And I read it on the airplane, and I had a chance to do a little bit of work on it separately,

and that is with respect to what you call coupling, coupling the violations of 1-9 with•or the verification with the presence of illegal

workers on the premises; and, in effect, saying that INS was no

longer going to fine people for verification violations unless there

is, coupled with that, some violation of the hiring thing.

And I just happened to have with me on the plane some information which I would like to read into the record, because it does

seem that if that is the INS policy•and I am aware of the statements that were issued, the guidelines, which suggest that fines

will be issued for paperwork-only violations only in certain circumstances; there is kind of a conditional look at that, by virtue of a

regulation or guideline issued earlier this year by the Immigration

Service.

But in the 1-9 handbook, which is what is handed out to all the

employers•and this is supposed to be their bible, you know, to

answer questions and to give them some guidance in this•in there,

on page 9, is a question and answer setting.

And the question is, "How can I avoid discrimination while complying with the new immigration law?

"Answer: Employers can avoid discrimination by applying the

verification procedures of the act to all"•and "all' is in italics•

"to all newly hired employees." And then skipping a sentence, it

goes on, "Seeking identity and employment eligibility documents

only from individuals of a particular national origin or from those

who appear or sound foreign violates the new immigration law,

and may also be a violation of Title 7 of the Civil Rights Act of

1964."

So if the INS•and I am going to ask each one of you what experience you may have had on this paperwork violations, as we call it

loosely, but the employment verification•if the INS has changed

its pattern so that it does not intend to fine or cite for paperwork

violations unless there has been also a violation of employment

standards, then it seems to me it goes dead 180 degrees against the

statement in its own 1-9 handbook.

So may I ask you, since you brought it up, Mr. Lehr, how did you

and FAIR arrive at that position? Was it based on reading some of

the documentation that INS got out, or

Mr. LEHR. Craig DeBernardis, an attorney in the Baltimore general counsel's office, said that the INS would only fine an employer

for failing to fill out the 1-9 employment verification form if the

employer also was knowingly employing illegal aliens.

This coupling procedure is a national policy, and comes directly

from the desk of the commissioner, Alan Nelson, he said.

Mr. MAZZOLI. DO you know where that statement from DeBernardis came from, or could you trace it down for me?

Mr. LEHR. I could trace that and get it to you.

Mr. MAZZOU. Could you? All right. I would very much like to

have that. I don't know who this DeBernardis fellow is. I would

very much like to have that.
144

But what I have before me is what is produced by the Immigration Service. I guess it is called the Employer Sanctions Newsletter.

And there is one section describing a May 26, 1988 policy for employer sanctions, dealing with five principal guidelines. And the

fifth deals with something like that.

They didn't quite say it as DeBernardis said it, but they are in

the same ballpark. And I would very much like to have that for my

record, because

Mr. LEHR. I will follow up on that.

Mr. MAZZOLI. I think there is one thing else that Mr. Lehr said

that is very important, and it is true. He cites in different parts of

his testimony the fact that the INS is going to need additional

funds if it is going to carry out the work of employer sanctions or

legalization, because part of the problem of the delays in processing

the paperwork•I mean, processing legalization applications•is the

fact that INS doesn't always have the same number of people that

it wishes to have.

And that is true for the Border Patrol. It is true for the inspectors who enforce employer sanctions•and I think you said there

that there is not going to be a net increase, but basically just keeping up with what they had in 1976. So I think that, obviously, as

we get into a lot of these things, we have to also be aware that it

takes money to provide the men and women who can handle the

law.

I would take some general exception with how you characterize

what the GAO report concluded on the use of the Social Security

card. I don't think they quite concluded as strongly as you have set

forth in your statement about the use of the Social Security card.

But they did say that it could become that kind of a single document that could be used for work authorization, instead of having

all of this multiplicity, including, as one•I think it was Mr. Foster

who said that the employer wouldn't even take a U.S. passport,

which, of course, is the one thing that establishes not only your

identity but your work authorization. But because it wasn't a

Social Security card and wasn't the driver's license, they got confused.

So it is true that we probably are thinking in terms of maybe one

kind of an approved document. But it is interesting to look at that,

and I intend to do so.

Mr. Dubove, let me ask you this. I am a little bit concerned about

what you said. Basically, at one point in your statement, you were

saying the QDEs•which, for the people who are here and don't

know, is qualified designated entity, which is a mouthful for storefront groups that sort of represented people in trying to get their

applications for legalization prepared, but you more or less equated

QDEs with legal counsel, and felt that the INS should inform QDEs

where the legalization or the amnesty applicant has indicated that

they were represented. And failure to do so, conversely, was some

kind of a serious oversight, or maybe even a mischievous action.

Would you kind of get into that? I don't quite see the QDEs as

quite being in that category.

Mr. DUBOVE. My understanding of the contract between the QDE

and INS is that, while it doesn't make them the equivalent of an
145

attorney, it does make them a legal representative before the INS

in their legalization applications.

Now, when these people were picked up, if there were questions

about these peoples' legalization applications, rather than denying

it, they should have gone back to the source, the person who is

handling that application, and addressed the questions to them.

And that is our concern. It is the same sort of thing as an access

to counsel sort of question, in my eyes. These people•the applicants don't have•just have a very fundamental knowledge of the

language; certainly, no real understanding of the legal process involved through this.

And if they are being asked questions about their application,

their legalization status, and, more importantly, being waved voluntary departure forms in front of them

Mr. MAZZOLI. I was going to ask you about that. Can I interrupt

you at this point by saying, when you all had that meeting this

other day, did the question come up of how the INS field people

should treat a legalization applicant who says•not the magic word

of a lawyer or something, but says a QDE's name?

Did that come up at all? Did you ask the INS to

Mr. DUBOVE. Well, the meeting hasn't taken place, sir. We have

the questions put together, and I have a copy of the questions. I

would be happy to give them to you.

Mr. MAZZOLI. Oh, I am sorry. I apologize. In other words, the

Mr. DUBOVE. The questions are basically how far they can go in

determining•we understand the INS has the right to determine if

a person has a prima facie application; how far they can push that

prima facie question beyond, have you been here since January 1,

1982, beyond that, because there are so many exceptions. For example, the

Mr. MAZZOLI. But the question, I guess, I was getting at, you

haven't had that meeting, then, the one with Pickle and the

others?

Mr. DUBOVE. No, sir. We haven't. We are waiting.

Mr. MAZZOLI. OK. Do you have it scheduled, or are you having

any kind of problem?

Mr. DUBOVE. No, sir. Senator Bentsen's office is working on that.

As a matter of fact, they are having a meeting today. The regional

Mr. MAZZOLI. All right. Well, why not add to the agenda for that

meeting the question of responsibility or what duty the INS would

have with respect to individuals not represented by counsel, but

represented by QDEs, who have filed an application for legalization, because it does seem to me that maybe some contact with the

QDE is warranted, but it may not be required. But it could be the

kind of thing that could be done by way of an informal guideline,

so that then the individual applicant is somewhat protected, because that QDE is going to be advised when that individual has

been identified or apprehended in some fashion by the Immigration

Service.

Now, let's talk a little bit, if you would, about those voluntary

departure forms that you say were in English and Spanish, and so

forth. And you mentioned, if I understood you correctly, that you

have only knowledge of one person•of all of the hundreds that
146

might have been given out, or maybe thousands, only one person

who might have been identified, because they are not confidential,

and maybe to his or her peril because they now might be under

some order of deportation.

Is that correct? You only had one individual?

Mr. DUBOVE. Well, I am not exactly sure I understand. One

person, one legalization applicant, followed what the form said

and

Mr. MAZZOLI. I understand. Looking for voluntary departure

when they didn't qualify.

Mr. DUBOVE. Not for them, but for their ineligible immediate

family members, right.

Mr. MAZZOLI. OK. Fine. Right.

Mr. DUBOVE. Went through the process and filed it on behalf of

their spouse.

Mr. MAZZOLI. And then they were given an order for deportation?

Mr. DUBOVE. For the spouse.

Mr. MAZZOLI. That is what I asked. But you only know of one?

Because there must have been hundreds or thousands of those

given out at that same office.

Mr. DUBOVE. Well, our response to that, our office in Austin•our

immediate response when we found out that this was happening is

we sent a notice to all the QDEs advising them not to do so, because the person•anyone who applied for voluntary departure

wouldn't have any kind of privacy, wouldn't come under the confidentiality provisions like IRCA.

And not only would they not be any better off, because they

wouldn't necessarily have a work authorization; but, in fact, they

would be worse off.

Mr. MAZZOLI. Would they not be worse off if the didn't fill it out?

I mean, in a sense, if only one person wound up tangled up in this

thing, where maybe hundreds of other ones were given voluntary

departure or are now before the INS

Mr. DUBOVE. I am reminded of what Ms. Slaughter said in her

earlier testimony, that they are holding back cases for the same

reason, because we don't know what the INS is going to do with

these people that don't qualify. And I think it is a good defensive

response.

Mr. MAZZOLI. Don't you think that this is one case where no

news is good news? I mean, we do hassle them; we are troubled by

what is down the road and what might be the possibility, and someone you were talking about, the Silva letters and all that.

I mean, obviously, we should be troubled. We shouldn't be totally

at ease. But isn't it kind of comforting to some extent, or a little bit

assuring, the fact that nothing has happened, the fact that basically the district directors are waiting•and I understand, to the INS's

credit, they have a bill before our committee, John, that does provide up to 200,000 visa numbers separate and apart for the purpose

of family unification.

So it is one provision of a larger bill. But the INS has advanced

that concept, which probably is what is yielding this idea that they

ought not to move too swiftly right now.
147

Mr. DUBOVB. Two immediate responses. One is, I would be hesitant to have them rock the boat if they have a job and they are

OK, and they are pretty much still under the shadows.

My second response is, most of these people don't have a lot of

money. That is a given. They certainly don't have money to now

take on the legal fees involved in an order to show cause, that they

will need an attorney.

And the pro bono networks are so inundated right now taking

care of appeals for legalization applications that you can't turn to

those people, to those pro bono programs, to help now litigate

orders to show cause because this person stepped forward to apply

for that.

Mr. MAZZOLI. Mr. Vail?

Mr. VAIL. Yes. There are just two troubling points. I alluded to

them in my statement. Number one is that while I am glad to hear

that the Service has this bill pending, it troubles me that they are

moving to get deportation orders against people.

It would be very possible to leave people in a voluntary departure status. The example that Mr. Vega mentioned earlier in his

materials

Mr. MAZZOLI. Well, they are not applying for it, because the

QDEs say don't.

Mr. VAIL. But in many cases, the Immigration Service is taking

that and moving to get deportation orders against people, and then

saying, OK, now we will give you voluntary departure, or now we

will stay your deportation, which is a big difference, because then

you have got the guillotine over your head, and any time they say

go, you are finished.

And what troubles me is, why go to this much trouble to get an

INS trial attorney, an investigator, an immigration judge, all involved in this to get a deportation order? What is the reason

behind it, when you could alleviate all that work and just give

people voluntary departure orders, keep them out of deportation

proceedings, keep deportation orders off their record.

But in many cases•and my case included, and I think the case

that Mr. Vega mentioned, which I am familiar with•that is not

what happened. At least in Houston, they are actually seeking deportation orders, which they may not enforce, but which

Mr. MAZZOLI. We, if you get back to what I said earlier, one of

the problems we are going to have, unless there is some evidence

that people are being deported, unless there is some evidence that

families are being disrupted, families are being fragmented, it is

going to be very difficult for us to pass a separate piece of legislation or some kind of a bill that changes the situation or deals with

it, because it is anticipatory.

As I said to an earlier panel, I think it is very useful that we not

wait till the crisis hits us, until the wall breaks down and we try to

push it back up. There is something to be said for looking in advance and trying to calculate a problem down the road and dealing

with it.

But in Congress, especially here with this kind of a setting, in

which Congress clearly said no derivative legalization•we had an

opportunity to say it, and we intentionally did not make every
148

member of the family automatically part of the one successful application.

So short of that, everything else is kind of moving around and

trying to do justice and humanity, and trying to exercise a certain

amount of magnanimity toward the people; but, in fact, not with a

sort of an across-the-board handling.

So what I would love to have people do is keep us posted, because

Congressman Bryant and I will have hearings in Washington with

the INS, and bring up many of these things. We have a wealth of

testimony, which is very helpful for us.

But with respect to family unity, it seems clear to me that there

has to be some documentation•not just some, a lot of it•where

the INS has moved ahead to actually separate families before, I

think, Congress is going to be particularly disposed to taking up

the cudgels here.

I think we don't want families to be broken up, and when I had

that conversation with Mr. Roybal, the colloquy, as we call them

on the floor of the House, on Mr. Roybal's proposal, it was very

clear that the Congress, this committee, does not want•we do not

want families to be broken up, except in the most clearcut of circumstances, I mean, the most unavoidable sort of circumstance.

And basically, I think, going back to what Mr. Montemayor

said•unless the person is a bad person; you know, if you have got

a criminal or something like that. Otherwise, basically we want the

families to stay together. That is in the American scheme of things.

But unless there is some evidence that they are not being kept

together, it is going to be a little bit tough to deal with that part of

it, except to try to clear up the administrative thing, try to put

some guidelines down, try to encourage an overall uniform national policy, and try to get away from the • helter-skelter patchwork

quilt application of these regulations.

So to that extent, this hearing today was extremely helpful, because we do that. John?

Mr. BRYANT. Well, I would just like to observe, because I think it

might be helpful to the understanding of those assembled here,

that even if we are able to reach a consensus among the members

of the subcommittee or the full committee, or even the House,

about making changes, some or all of the changes suggested here

today•and there clearly are the makings of an omnibus, sort of

technical corrections bill in what we have heard here•we still face

a strategic decision that the chairman of this subcommittee would

have to make about whether we could afford to go forward with a

bill which accomplished some of these things, in view of the fact

that that bill would be subject to amendment on the floor of the

House in ways that would attack the basic underpinnings of the

entire Immigration Reform Act, coming from those who didn't like

the act in the first place and would like to change some of the basic

parts of it. That is a problem that we face, even when we do reach

a consensus about what we would like to see changed.

And second, with regard to an issue like family unity•my opinion of which I have already stated•concerns me and others what

the meaning and consequences would be if we brought a bill forward and suffered a clear-cut defeat? What would that say to the

INS with regard to its current practices and its current policy?
149

So this is not an easy matter with regard to what strategy to

follow, even if we can reach a consensus among the members about

what ought to be done.

Nevertheless, I would like to say thank you to all of you who

came forward, and in behalf of all of you and myself would like to

once again thank Chairman Mazzoli for leaving the bluegrass of

Kentucky and coming down here to the dry, drought-ridden grass

of Texas. We needed a little diversion, and you provided it.

Mr. MAZZOLI. I thank you, John. Let me tell you, I have worked

with John now for four years, and he is a fine young man and an

outstanding representative. And he has been very helpful on this

committee, and, of course, as I mentioned earlier, his other committee assignment, which is a quite remarkable assignment on the

Energy and Commerce Committee. So he has done dual duty on

two major committees, one of the few Members of Congress that is

permitted to serve on two major committees.

But I want to thank John for the invitation, and encourage him

to come up to the bluegrass of Kentucky some time. And gentlemen and ladies, thank you all very much, and the subcommittee

stands adjourned.

[Whereupon, at 4:08 p.m., the hearing was adjourned.]
150

ADDITIONAL MATERIAL

£|ir Ornate of

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RECEIVED

SEP 2B88

IMMIGRATION

GONZALO BARRIENTOS P.O. BOX HM AUSTIN. TEXAS 7mi IIII|4»MII4

STATE SENATOR DISTRICT M HAYS » TRAVIS COUNT! ES

August 22, 1988

Subocmnittee on Immigration, Refugees and International Law

2137 Raybum House Office Building

Washington, D.C. 20515-6217

Dear Ccrtraittee Matters:

I am writing regarding the implementation of the Irmdgration Reform and

Control Act of 1986. I would lite to rake you aware of a situation

which has caused me some concern.

On June 15th in Austin, Texas, the INS conducted a raid on a

construction site and forty-eight people were taken into custody.

Six of the forty-eight had applied for amnesty under the provisions of

IRCA. Of those six, two were released and four were deported. The INS

decided the four who were deported were ineligible for citizenship.

This was not an isolated incident.

The issue of how much authority the enforcement agency is going to have

in determining eligibility for citizenship needs to be examined. It is

my understanding that an appeals process is to be followed through the

Legal Appeals Unit in these circumstances. To deny these appeals seems

to be an extremely discriminatory practice of the INS.

While I understand the reasons for inclusion of employer sanctions in

IRCA, I want to make oertain that the rights of my constituents are

protected. I feel the Immigration and Naturalization Servioe should not

be allowed to conduct random raids of businesses simply because those

businesses employ Hispanics. It appears that this has been the case on

more than one occasion. Such raids should be conducted only when there

is probable cause, with the proper warrants, and appeals should be

granted through the appropriate agency.

I appreciate the opportunity to present you with this testimony and

would like to thank you for your time and effort in monitoring the

implementation of this legislatio

Gonzalo Barrientos

Texas State Senator

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