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86–041 PDF 2003

S. HRG. 107–887

THE IMMIGRATION AND NATURALIZATION

SERVICE: HOW SHOULD IT BE RESTRUCTURED?

HEARING

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED SEVENTH CONGRESS

SECOND SESSION

MAY 2, 2002

Serial No. J–107–77

Printed for the use of the Committee on the Judiciary

(

(II)

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

MARIA CANTWELL, Washington 

JOHN EDWARDS, North Carolina 

ORRIN G. HATCH, Utah 

STROM THURMOND, South Carolina 

CHARLES E. GRASSLEY, Iowa 

ARLEN SPECTER, Pennsylvania 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

SAM BROWNBACK, Kansas 

MITCH MCCONNELL, Kentucky 

BRUCE A. COHEN, Majority Chief Counsel and Staff Director 

SHARON PROST, Minority Chief Counsel 

MAKAN DELRAHIM, Minority Staff Director 

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C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Brownback, Hon. Sam, a U.S. Senator from the State of Kansas ....................... 3

Feinstein, Hon. Dianne, a U.S. Senator from the State of California ................. 5

Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa ..................... 2

Hatch, Orrin G., a U.S. Senator from the State of Utah ...................................... 39

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

Leahy, Patrick J., a U.S. Senator from the State of Vermont ............................. 45

Thurmond, Strom, a U.S. Senator from the State of South Carolina ................. 48

WITNESSES 

Mazzoli, Romano L., former U.S. Representative, and Fellow in Law and 

Public Policy, University of Louisville, Louisville, Kentucky ........................... 7

Virtue, Paul W., former General Counsel, Immigration and Naturalization 

Service, Washington, D.C. ................................................................................... 18

Yale-Loehr, Stephen, American Immigration Lawyers Association, Ithaca, 

New York .............................................................................................................. 23

SUBMISSIONS FOR THE RECORD 

Independent Monitoring Board, Chicago, Illinois ................................................. 41

United States Ombudsman Association, Nashville, TN ....................................... 52

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THE IMMIGRATION AND NATURALIZATION 

SERVICE: HOW SHOULD IT BE RESTRUCTURED? 

THURSDAY, MAY 2, 2002

UNITED STATES SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, D.C. 

The committee met, pursuant to notice, at 2:30 p.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Edward M. Kennedy 

presiding. 

Present: Senators Kennedy, Leahy, Feinstein, Durbin, 

Brownback, and Grassley. 

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

SENATOR FROM THE STATE OF MASSACHUSETTS 

Senator KENNEDY. We will come to order. 

September 11 clearly demonstrated that our immigration system 

has not kept up with security challenges. Two weeks ago, the Senate took an important step in the effort to bolster national security 

by unanimously passing legislation to strengthen the security of 

our borders. Restructuring the INS will help further this effort by 

bringing our immigration system into the 21st century. 

I thank my colleague, Senator Brownback, for his significant 

commitment to this issue. I thank Senator Grassley and Senator 

Feinstein, who are recommending that we hold this important 

hearing. 

Senator Brownback and I have just introduced the Immigration 

Reform, Accountability, and Security Enhancement Act, comprehensive legislation to remedy many of the problems that currently plague the agency and provide a more effective and efficient 

framework to address our immigration responsibilities. 

Senator Feinstein’s bill addressing the plight of unaccompanied 

minors which we held a hearing on earlier this year is a natural 

complement to this legislation, and I thank her for her willingness 

to merge the two bills. 

This bill will untangle the overlapping and often confusing organizational structure of the INS, and replace it with two clear 

chains of command, one for enforcement and the other for services. 

Both functions have long suffered under the current structure. Separating these competing responsibilities will provide the new Immigration Affairs Agency created by this bill with greater accountability, efficiency, and clarity of purpose. 

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On the enforcement side, it is clear that our immigration laws 

are being applied inconsistently. Some of the September 11 terrorists were here legally, others had overstayed their visas, and the 

statute of others is still unknown. Improving the structure of the 

agency will help ensure greater accountability and consistent and 

effective enforcement of our immigration laws. 

Immigration services are also suffering. Massive backlogs force 

individuals to languish for years waiting for their naturalization 

and permanent resident applications to be processed. Files are lost, 

fingerprints go stale. Courtesy behavior is too often the exception 

rather than the rule. Application fees continues to increase. Yet, 

poor services and long delays continue as well. 

As important as it is to separate these functions, adequate coordination between the two branches is also critical. This bill provides for a strong, shared, central authority over the two branches 

to ensure uniform immigration policy, efficient interaction between 

the two bureaus, and fiscal responsibility. 

Commissioner Ziglar has made significant progress in addressing 

the agency’s problems. However, I believe this legislation is needed 

to ensure the agency’s successful operation in the future. 

There is strong bipartisan agreement that the INS must be reformed, but restructuring must be done right. Successful reform 

must separate the enforcement and service functions, while maintaining a central authority for uniform policymaking, accountability, coordination, and fiscal responsibility. The Immigration Reform, Accountability, and Security Enhancement Act accomplishes 

these goals. 

I look forward to the testimony of our witnesses, and I hope the 

Senate acts favorably on this legislation in the near future. 

Senator Grassley? 

STATEMENT OF HON. CHARLES E. GRASSLEY, A U.S. SENATOR 

FROM THE STATE OF IOWA 

Senator GRASSLEY. Thank you, Mr. Chairman. This is a very important hearing to be held and I thank you very much for holding 

it. 

We have, starting last November, Mr. Ashcroft and Mr. Ziglar releasing a proposal to restructure the agency. That very same day, 

I asked Senators Kennedy and Brownback, the leaders of this subcommittee, to bring this important issue to light by holding a hearing on the administration proposal. So obviously I thank you for 

what I consider the beginning of a discussion on the problems facing INS. 

The American people do not need to be convinced that this agency needs to be reformed. We all heard about the student visa approval being sent to terrorists six months after the World Trade 

Center incident. We know that there have been failures to detect 

immigration benefit fraud, and we know that the agency is not 

abiding by the provisions of the Whistleblower Protection Act. 

I understand that Commissioner Ziglar is moving ahead on his 

plan, and on April 17 announcing the first steps in that regard. 

They have more significant steps that I know they are anticipating, 

including creation of a field advisory board. 

3

We are not getting answers, and straight answers, from the administration about snafus that have occurred at the INS or actions 

they have taken. We will be giving the agency millions of dollars 

this year to run more efficiently and implement changes in structure. 

I think as a member of this committee, having responsibility to 

oversee INS management and performance, we have a responsibility to get some answers from the Commissioner, who is in control, and I am thankful for the assurance that the chairman has 

given me that that will happen. 

I know there is a growing consensus to split INS. I agree that 

there are conflicts of interest. However, I think the two new bureaus need to continue to work together hand in hand in order to 

best serve the country. I know the Attorney General and Commissioner propose to create a information officer. What other links will 

be put in place to make sure that these two bureaus work cooperatively and remain unified under one director is a question that we 

have to ponder carefully. 

We can’t simply move boxes around and rename the agency and 

then claim it is a new and improved bureaucracy. We need to fix 

the systemic problems at the INS. I think that any bills mandating 

changes to the INS should include provisions that really make the 

INS accountable. We need to improve oversight that allows investigations of misconduct. We need to enhance the whistleblower protections provided to INS employees and protect them from retaliation. 

We need assurances that interior enforcement issues will be addressed. Just as an example, last week 646 illegals were arrested 

in Nebraska because they were smuggled into States beyond the 

border. We need improvements in customer service, seeing that the 

agency is doing its best to accommodate new residents. The latest 

idea, thanks to Senator Hatch, creates a number of field and satellite offices. 

I know that legislative action is necessary. We give the agency 

enough leeway to reform itself. Not much has been done, but now 

it is time for Congress to step in. 

Thank you. 

Senator KENNEDY. Thank you. 

Senator Brownback, we would be glad to hear from you. 

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

FROM THE STATE OF KANSAS 

Senator BROWNBACK. Thank you, Mr. Chairman, and I thank you 

for holding this hearing. I want to commend, as well, Senators 

Grassley and Feinstein for requesting the hearing. The topic certainly is critical, and it is timely. 

Mr. Chairman, the attacks of September 11 exposed the weaknesses in how we protect our borders. The terrorists exploited the 

shortcomings in our immigration system and the lack of communication between the respective agencies that might have detected 

and deterred the events of that horrible day. 

At the same time, however, September 11 has also brought out 

the best of this great Nation. As a people and as a Government, 

we have united and stood firm in support of our freedom and of our 

4

principles. Significantly, September 11 has reaffirmed our Nation’s 

pride in its immigration roots. We have not lapsed into xenophobia, 

nor have we let terrorism cloud our judgment about the value of 

our immigrant neighbors and our visitors. 

Mr. Chairman, I take great pride in the fact that the border security bill which we and Senator Kyl and Senator Feinstein put together was intelligent and balanced, and was passed unanimously 

in the United States Senate. We were true then both to our responsibility to protect our great Nation from those who mean us harm 

and to keep our country open to those who mean us well. 

We need an agency that is likewise true to both of these missions, an agency that can effectively enforce the immigration laws 

and provide timely and competent immigration services. Sadly, the 

Immigration and Naturalization Service has failed to perform either mission well, and restructuring INS has long been on the legislative agenda. 

While I deeply respect the hard work that Commissioner Ziglar 

has put into reforming that agency, the fact is that the INS requires more fixes than can be done administratively. The fundamental problems with the INS compel legislative intervention. 

That is why, Mr. Chairman, I am pleased to work with you on 

the Immigration Reform, Accountability, and Security Enhancement Act of 2002. I am also pleased that we have been joined by 

our colleagues on this committee, Senators DeWine, Durbin, and 

Edwards. I also want to thank Senator Feinstein for allowing us 

to incorporate her very fine bill on juvenile detention into our restructuring package. 

Finally, I would like to offer special thanks to Senator Hatch, 

who played a key and sometimes unheralded role in the development of the border security bill. I am glad to see he will be an integral part of the formulation of this important legislation. 

Mr. Chairman, I would like to point out that, as with border security, we have a bipartisan, balanced, and intelligent bill that will 

deal effectively with the challenges that face our Nation. I look forward to our committee working on this critical legislation, and I 

look forward to the testimony of the esteemed witnesses that we 

will have in front of us to talk about ways they view would be best 

at restructuring this incredibly important agency. 

I just want to note one other thing, Mr. Chairman. We are looking at both the enforcement and the services end of the Immigration Service, and I think we have got clear challenges on the enforcement end that were brought into such sharp focus when Mohammed Atta got the receipt for being able to go to school six 

months after the event happened. It is in the enforcement area 

that we have problems. 

On the services area, in my State my lead case work area that 

I have is immigration work; it is work with the INS. That is the 

lead case work that I have. Something is just not quite working 

right here when we have that type of system. It has been that way 

for a number of years, so I don’t blame this administration and I 

don’t blame the last administration. But it is clearly something 

that needs to be fixed in both the enforcement and in the services 

area. 

5

What I am hopeful that we can do is provide a balanced, 

thoughtful approach, and work with the administration on this to 

get out a bill that improves the services and the enforcement in the 

immigration field. 

Thank you for holding the hearing. 

Senator KENNEDY. Thank you very much. 

Senator Feinstein, welcome, if you had a word for us. 

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

FROM THE STATE OF CALIFORNIA 

Senator FEINSTEIN. Thank you very much. It is hard to say just 

a word, but I will do my best. 

I think, as Senator Brownback has just said, that you, Mr. Chairman, have taken the initiative in pulling together a very interesting piece of legislation that is really based on reality. I think the 

events of September 11 have led really to the highest level of scrutiny of the INS by Congress, by the media, and by the public. Even 

with this heightened awareness, the agency continues to commit 

grave errors in its prescribed duties. 

The INS has been described as an after-thought of the Department of Justice. Over the years, it has been given further responsibilities by Congress, but with little attention toward the agency’s 

growing staffing and budgetary needs. Each effort to legalize populations in our country over the last 20 years has resulted in an immigration case overload, and explains in part the slow application 

processing rate of its service functions. Today, the INS adjudication 

caseload is approaching 5 million cases. 

The immigration laws enacted in 1996 also saddled the agency 

with increased enforcement demands and mandates that have had 

major ripple effects on the agency’s overall performance. The INS’ 

organizational structure is so decentralized, without adequate controls, with uncoordinated, overlapping programs, especially in enforcement between the regional and district offices. 

But this really is nothing new. More than 10 years ago, the GAO 

issued an extensive report identifying severe management problems across the agency. Among other things, the GAO found that 

the INS lacked clear priorities, lacked management control over regional commissioners and district directors; had poor internal communications and outdated policies; did not take workload into account when allocating resources, which contributed to the high 

backlog of applications; had unreliable financial information, and 

thus inadequate budget monitoring. That could almost be today’s 

report, if you think about it. 

I think, tragically, all these symptoms for us kind of came together on September 11. Then, on March 11 of this year, as Senator Brownback has pointed out, two of the hijackers received notices that they had been approved for extension of their student 

visas. Now, the point here is, even after 9/11, nobody bothered to 

check the database that was going out to look for any names that 

might have a terrorist connection. That is very surprising. 

On March 22, we learned that the INS had inappropriately permitted four Pakistani nationals to take shore leave without visas, 

after a ship docked in Norfolk, Virginia. These are the only misVerDate Mar 21 2002 15:28 Apr 02, 2003 Jkt 086041 PO 00000 Frm 00009 Fmt 6633 Sfmt 6633 C:\HEARINGS\86041.TXT SJUD4 PsN: CMORC
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takes that have been uncovered, and it is the latest illustration of 

an agency without adequate control or accountability. 

With an immigration landscape that is growing in complexity 

and in size, the INS, as it is currently structured, doesn’t have the 

capacity to effectively manage the critical aspects of its post–September 11 mission. So I am very pleased to join with the chairman 

and the ranking member as a cosponsor of their bill, the Immigration Reform, Accountability, and Security Enhancement Act of 

2002. 

I think this legislation is really well-thought-out. It abolishes the 

INS. It creates a new Immigration Affairs Agency with two separate bureaus, one for enforcement, one for service, each with concrete and focused responsibility. I think more importantly, it makes 

immigration a higher priority within the Justice Department by 

elevating the new Immigration Affairs Agency into a higher position within the Department. It streamlines the agency’s growing 

and often competing missions. 

Customs is a similar thing; it has a mixed mission—speed trade, 

and yet prevent contraband from entering the country. They are 

counterintuitive. You can’t really do them both at the same time, 

and that is also a problem in this agency. 

So I think your legislation—our legislation, if you will—would 

enforce accountability. It would enable better communication and 

coordination. But I want to just say one thing. I have become convinced over my long tenure that civil service bureaucracies have a 

very difficult time adjusting to modern management techniques, 

and it is not their fault. It is that nobody is really trained as you 

go along. Things are done often on a seniority basis. 

I feel very strongly that this legislation has to permit the hiring 

and firing. You have got to have managers who can manage, who 

can hold people accountable, and if they don’t, replace them with 

someone who can, because the mission is too important of this 

agency. 

So with that, I am very happy to join you as a cosponsor. 

Senator KENNEDY. Thank you very much. 

It is an honor to welcome my old friend and colleague, Ron Mazzoli, back to Congress. He served in the U.S. House of Representatives from 1971 to 1995, 24 years, where he chaired the Subcommittee on Immigration, Refugees, and International Law. Before entering Congress, he served in the Kentucky State Senate. He 

served two years of active duty with the U.S. Army. 

He is currently Senior Distinguished Fellow in Law and Public 

Policy at the University of Louisville, in Kentucky, and this semester was a visiting fellow at the Harvard Institute of Politics, where 

I had the pleasure of seeing him recently and where he taught immigration law. 

I thank him for making the trip to Washington, particularly during an important week in Kentucky. We see some of our witnesses 

know what that means. It is Derby time and he has given up the 

opportunity to be down there, but he has to be out of here at 3:15. 

We welcome you, Ron. He is an expert on immigration and immigration law, and was responsible for many of the important things 

that we did in immigration. He continues to teach it. 

We are joined by the chairman of our committee. 

7

Chairman LEAHY. And one who joins in the praise of former Congressman Mazzoli, who is a dear friend of all of ours on both sides 

of the aisle. 

STATEMENT OF ROMANO L. MAZZOLI, FORMER U.S. REPRESENTATIVE, AND FELLOW IN LAW AND PUBLIC POLICY, 

UNIVERSITY OF LOUISVILLE, LOUISVILLE, KENTUCKY 

Mr. MAZZOLI. Well, it is a great pleasure, Mr. Chairman and 

members of your distinguished committee. Thank you very much 

for the invitation. It is great to join friends. I served with at least 

two members in the House and, of course, worked with all the Senators in my 24 years here, in addition to which I continue to be 

a C–SPAN watcher. So I watch all of you quite frequently on that 

means. 

It was a pleasure to join you, Senator Kennedy, at the Institute 

of Politics just very recently, Monday of last week. As I mentioned 

to you then, your brother, John, who is, of course, the namesake 

of the school, was a very great inspiration to me in the early 1960s 

to encourage me to go into public office. What I did, I hope, at the 

Kennedy School this semester was to encourage a new generation, 

as his generation encouraged me. 

I would like to also salute each one of you on the public service 

aspect of what you are doing. I know enough about immigration 

and know it is a very nettlesome and difficult subject. People are 

conflicted about it, and it is therefore quite a service that you are 

rendering to the people. 

I remember Father Ted Hesburgh, Mr. Chairman, would say 

often that this subject needed people who are willing to take the 

slings and arrows in order to achieve the greater good. That is exactly what you are doing and I commend you for that. 

Mr. Chairman, today I am not going to deign to be an expert, 

which I am not, on management and exactly how the organization 

ought to be structured and the details of it. You have many of 

those experts coming to talk with you, but let me just address in 

a general way what I hope at the end of the day we have in this 

new immigration setting and what capability will be. 

I mentioned earlier about this conflicted message and ambivalence. It has marked our policy for many years, and with all respect to the immigration people, it is very hard for them here in 

Washington and for people in the field to do their job when they 

are not really sure what job they are supposed to do. 

So one of the things that we will do in the next few months or 

few weeks is to restructure, but that alone is not going to solve all 

the problems. That just begins the effort, and at some point you 

members of the Senate and the people of the United States will engage in a national discussion or a national debate about what immigration policy should be. Then, therefore, it seems to me that 

some flexibility ought to be left in whatever plan you come up with 

so that the new director, secretary, associate attorney general, will 

have that opportunity to lead the debate, to be part of it, and also 

to remain flexible to carry that new mandate out. 

I believe, Mr. Chairman, that the House bill was a very worthy 

effort, and it is certainly a step in the right direction. But if I have 

a preference and would state it today, it would be on behalf of the 

8

bill that you and Senator Brownback and Senator Feinstein and 

others on the committee have introduced. 

It gives the director more authority, more visibility. It gives him 

or her a greater degree of budget authority, which is so important 

in Washington parlance. It gives that man or woman a bully pulpit 

in order to attempt to lead this important debate which is pending 

and looming. 

I have worked with many directors of the Immigration Service 

over the years, dedicated men and women. But once again, it is 

hard for them to do their work unless they have a clear-cut set of 

authorities to deal with, and then also to have a clear mission. 

Clearly, separation of the service from the enforcement sector 

will be done. That is a foregone conclusion, and devolution of authority to the people who will lead these two branches is also a 

foregone conclusion. But separating the functions alone won’t do it, 

unless those two separated functions can work together, coordinate 

what they are doing, and have an orchestrated effort to achieve the 

overall mission and goals. So definitely separation, but some form 

of coordination has to remain. 

Certainly, the authority ought to be in the leaders of the two separate branches, but not such plenary authority that those leaders 

would be able to somehow muddle or countermand the overall mission as established by the leader. 

The 1998 immigration policy program headed by Dr. 

Papademetriou did a program called ‘‘Reorganizing the Immigration Function.’’ In 1998, 4 years ago, 5 areas were identified that 

needed attention in the INS—lack of policy coordination, inadequate customer service, muddled priorities, mission overload, and 

lack of accountability—all of which were mentioned in the preliminary statements today. So that is a very pertinent study and members of the staff ought to perhaps, if they have not already, take 

a look at that. It might be helpful in looking forward. 

Particularly pertinent is the policy coherence, or lack thereof, because once again, until this ambivalence is resolved, we are not 

going to be able to know exactly what we are doing. Reorganization 

alone can’t do it, but I think it is a step in the right direction. 

Mr. Chairman, if I might end up on this point, I am sure you 

and your colleagues, Mr. Chairman, will keep foremost in mind 

that the exercise here is not some Rube Goldberg-ish idea of moving the boxes and connecting the dots. It is an exercise in developing a Federal agency equipped to deal effectively and efficiently 

in the 21st century with immigration matters which affect people, 

not numbers, not statistics, not year-end reports, but men and 

women and children who often encounter problems in coming to 

America and living in America and raising their families in America and living out the American dream, as my father who came to 

this country from Italy did many years ago. 

So, Mr. Chairman, whatever the Congress and the administration do will have desperate importance to these people, simple people, hard-working people, people with a dream, people once again 

like my father, people like George Atia, the cab driver that we sort 

of fell into in Cambridge, and James Wong, who runs the laundry 

in Cambridge that we became friends with, simple people, and also 

people, Mr. Chairman, exactly like those 300 people from 60 naVerDate Mar 21 2002 15:28 Apr 02, 2003 Jkt 086041 PO 00000 Frm 00012 Fmt 6633 Sfmt 6633 C:\HEARINGS\86041.TXT SJUD4 PsN: CMORC
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tions of the world who gathered in Faneuil Hall on March 28, just 

a few days ago, to be sworn in as newly-minted U.S. citizens, and 

courtesy of Judge Neumann of Springfield, were led in their first 

Pledge of Allegiance to the Flag of the United States by our granddaughters, 9-year-old and 7-year-old Katie and Courtney Doyle of 

Louisville, Kentucky. 

I am sure, Mr. Chairman, that this new group of immigrants will 

contribute, achieve, and overcome, as earlier generations have. 

How can I be sure, Mr. Chairman? Because I saw it in their eyes 

and I heard it in their voices. Mr. Chairman, I commend you and 

your colleagues to your task of reorganizing the Immigration Service, always bearing in mind the people for whom we undertake this 

task. 

Mr. Chairman, thank you very much. 

[The prepared statement of Mr. Mazzoli follows.]

STATEMENT OF HON. ROMANO L. MAZZOLI, FORMER U.S. REPRESENTATIVE FROM THE

STATE OF LOUISVILLE, KENTUCKY

Thank you, Senator Kennedy and Senator Brownback for this invitation. It allows 

me to return to Capitol Hill, where I spent 24 happy years in the Congress—serving, I should add, with many members of this panel while they were Members of 

the House and with scores of other Senators who started their careers in the ‘‘Peoples’ House’’ before moving to the ‘‘Other Body’’ as House Members term the U.S. 

Senate. It is always a great pleasure and even a thrill to return to the historic and 

hallowed buildings of Capitol Hill. 

I must confess that my years on Capitol Hill observing and engaging in Floor and 

Committee proceedings have left their indelible mark. Seven years after retiring 

from the House to return home to teach at the University of Louisville, I remain 

a ‘‘C–SPAN junkie’’—needing a daily ration of Congressional fare to stay healthy 

and content. So, though I have been gone a long time, I have stayed in close touch 

with my former colleagues and their legislative interests—specially including today’s 

subject: immigration policy and procedure. 

Before getting to my brief observations about the legislative effort to restructure 

the U.S. Immigration and Naturalization Service, I must mention having been with 

Senator Kennedy Monday of last week when he and the members of the Senior Advisory Committee—the Board—of the Institute of Politics at Harvard University’s 

John F. Kennedy School of Government met to evaluate the Institute’s many programs and to receive reports from the Fellows of the Institute. 

It was my distinct pleasure and honor to have been a Fellow for the Spring Semester and to have led a Study Group of Harvard College students in a discussion 

of immigration. My students were talented and intelligent and personable, and they 

made my stay at Harvard enriching and memorable. 

As I mentioned to Senator Kennedy at the conference, his brother became president a year after my wife and I were married, and we were impressed greatly by 

this near-contemporary who was our new, young leader. We were inspired—as were 

so many in my generation—to think of public service as a noble calling and a high 

pursuit. I entered public life in 1967 in part because of John Kennedy and his example, and I found it fitting and appropriate that, many years later, I would serve in 

the school named in his honor. As your brother inspired my generation, Senator 

Kennedy, I strove as a Fellow to pass along his inspiration to a new generation of 

future leaders. 

Lastly, I salute all of you on serving your country and your constituencies by 

grappling with the vexing and nettlesome issues surrounding immigration. People 

ask me today, twenty years after I took up immigration issues in the House of Representatives, why I got involved. I reply: not just because my own father was an 

immigrant to the U.S. from Italy though that was a reason and not just because 

it gave me a chance to work with some of the revered figures in the field such as 

Senator Al Simpson and Representatives Peter Rodino and Hamilton Fish and staff 

leaders such as Jerry Tinker and Dick Day, though this is a reason, but mainly, 

I reply, because of Reverend Theodore M. Hesburgh, CSC, then President of the 

University of Notre Dame, my alma mater, who served in 1981 as Chair of President Jimmy Carter’s panel on immigration reform and who judged the issue to be 

a preeminent, overriding one which needed legislative leaders poised to accept the 

10

‘‘slings and arrows’’ in order to achieve the greater good. I hope I acquitted Father 

Ted’s judgment, by my work in the legislative vineyards, and I am sure each of you 

is acquitting it today. 

Let me begin today by stating that I will not recommend a detailed, specific plan 

for INS reorganization. I am not a management expert nor am I totally familiar 

with the nuances and subtleties of the several plans to remodel the INS which are 

before the panel and the Congress. But, I am sure in them—augmented by the several proposals offered by immigration advocacy and policy groups including that of 

Dr. Papademetriou’s Migration Policy Institute—are all the ingredients necessary to 

craft a final workable plan. 

My role today, as I see it, is to opine on what, at the end of the day, the restructured immigration entity should be capable of doing well and efficiently. 

I start my remarks as I will end them, by paraphrasing my all time favorite government quote—except for Tip O’Neill’s ‘‘all politics is local’’ ‘‘If it ain’t broke don’t 

fix it.’’ Regarding the INS: It is broke. So, fix it. But, don’t break it all over again 

in fixing it.’’ In other words, the INS needs repair and redirection and restructure 

in the worst way, but do not repair, redirect and restructure it ‘‘in the worst way.’’ 

Just because the INS has bungled its job and because it frustrates us by its failures 

and ineptitude, Congress should not make changes just to make changes or just to 

make a point. The changes need to be measured against the immigration entity’s 

roles and functions and against its missions and goals. Form follows function in all 

things including governmental reorganization. 

The House bill strikes me as a step in the right direction and a good faith effort 

to deliver to the nation an immigration agency equipped for the challenges of the 

21st Century. But, I believe the bill drafted by the Chair and Ranking Member of 

this panel has advantages over the House-passed measure, and the Conference Report sent to the President later this session should reflect its basic provisions. 

The role, responsibility and authority outlined in the Senate bill for the new Director of the Immigration Affairs Agency would seem to give that individual greater 

opportunity and ability to develop, implement and finance immigration policy than 

the House bill’s counterpart Associate Attorney General for Immigration Affairs. We 

have had devoted and dedicated INS Commissioners over the years, but they have 

lacked the ‘‘clout’’ to get things done. Both bills provide clout, but the Senate bill 

delivers more. 

While a separation of the INS service function from the enforcement function is 

a foregone conclusion—and a desirable one—and while allowing the head of each 

function to exercise authority and make decisions is important, these decisions must 

be coordinated between the two branches and with the agency head and must be 

compatible with the immigration entity’s overall mission. In other words, the new 

immigration system needs separation between functions but not such separation 

that a coordinated mission is impossible. And, the leaders of the branches need 

more authority, but not so much that they undercut, conflict with or muddle the 

immigration entity’s policies. 

The key to success in any mission, public or private, is for the leader to have the 

ability to marshal human and financial resources for the tasks at hand. The final 

INS reorganization plan must guarantee the Director, Associate Attorney General, 

or, Secretary such budgetary and personnel (‘‘hire and fire’’) authority as today can 

be allocated to a government official. Having such authority—which seems to be 

more present in the pending Senate bill than in the House-passed measure—gives 

the holder command and control as well as access to the ‘‘bully pulpit’’ and with it 

the chance to lead national debate on immigration issues and to help form national 

immigration policy. 

Mr. Chairman, I recommend that Members and staff refer to the 1998 study done 

by the then-Migration Policy Program (today, the Migration Policy Institute), entitled ‘‘Reorganizing the Immigration Function.’’ It summarizes the areas of need calling for INS reorganization to be:

• Lack of Policy Coherence 

• Inadequate Attention to Customer Service 

• Unequal Priority and Attention to Service and 

• Mission Overload 

• Lack of Accountability

I suggest, Mr. Chairman, that these remain the issues which any reorganization 

plan must address and ones which I am sure this committee will address. I specially 

call to attention to the policy coherence element. Ambivalence marks today, as it 

has for decades, our national immigration policy. This ambivalence—this 

conflictedness between open borders and closed borders, between more and fewer, 

between evenhandedness in selection and a point system to reward skills—has hamVerDate Mar 21 2002 15:28 Apr 02, 2003 Jkt 086041 PO 00000 Frm 00014 Fmt 6633 Sfmt 6621 C:\HEARINGS\86041.TXT SJUD4 PsN: CMORC
11

strung the INS and the other agencies of government in doing their jobs well. They 

often do not know what their superiors and the people of America through the Congress want them to do. 

Mr. Chairman, we have to take up this debate on what our immigration policy 

should be sooner rather than later. Reorganization alone cannot overcome this ambivalence and uncertainty. So, leave flexibility in your plan so the new immigration 

entity and its leaders can adjust the form to fit any new function mandated. 

Attached to my statement, Mr. Chairman, is material I asked Mr. Dennis Clare 

to prepare. He is an attorney in Louisville specializing in immigration law—and a 

friend with whom I occasionally practice a case. Since, in the final analysis, reorganizing the INS is meant to produce an agency which can handle better the immigration caseload and since this caseload is actually people not numbers, and since attorneys are those who represent these people, Mr. Clare’s thoughts on how the ultimate system should work—from the people standpoint—could be helpful to the 

Committee. 

Finally, Mr. Chairman, I am sure you and your colleagues will keep foremost in 

mind that the exercise here is not some Rube Goldberg-ish effort to move the boxes 

around and to connect the dots. It is an exercise in developing a federal agency 

equipped to handle effectively and efficiently immigration-related matters which affect people—not machines, not numbers on a page, not statistics in a year-end report—but men, women and children who often encounter these problems in coming 

to America, in working here, in raising families here, in writing new chapters of the 

American Dream here. 

So, whatever the Congress and the Administration do will have desperate importance to people—simple people, hard working people, people with a dream, people 

like my late father, Romano Mazzoli, and people, Mr. Chairman, such as those 300 

persons from sixty lands of the world who gathered in Faneuil Hall March 28 to 

be sworn-in as newly minted U.S. Citizens and who, courtesy of Magistrate-Judge 

Neumann, were led in their first Pledge of Allegiance to the Flag of the United 

States of America by our 9- and 7-year-old granddaughters, Katie and Courtney 

Doyle. 

I am sure this new group of immigrants will contribute, achieve and overcome as 

earlier generations have. How can I be so sure? Because I saw it in their eyes. Because I heard it in their voices. 

Mr. Chairman, I commend you and your colleagues to your task of reorganizing 

the Immigration Service while always bearing in mind for whom it is we are undertaking this task.

Senator KENNEDY. Thank you very much. Well, that is very compelling testimony and we thank you. You have obviously lived this 

issue and feel deeply about the different components. 

There have been a number of suggestions, as you referenced in 

your testimony, about the law enforcement aspects, and there have 

been some who have said we ought to coordinate Customs, Border 

Patrol, and INS, and everything ought to be coordinated in one 

place, and then the services in the other. 

You talk about the importance of having a coordination of the 

services and the law enforcement, and you also emphasized the importance of a significant role for the head of the INS, line responsibility, and that that be an individual who is held accountable, but 

also has the capability to interpret the laws and be able to lead the 

country on these issues. 

Why is it so important that the enforcement and service components be at least coordinated? No one is questioning the importance 

of having good institutions in both of these areas, but I am interested in why it is important from your point of view. 

How do we answer people who say what we really need is let’s 

get all the border and security issues sort of coordinated and then 

we will worry about the service aspects over here, and if they talk 

to each other, good? Why do you think in terms of immigration policy it is important to coordinate? 

12

Mr. MAZZOLI. Mr. Chairman, I served, as you mentioned earlier, 

some 12 years as Chair on the House side of the Immigration Subcommittee and I saw enough to prove to me that while we need to 

have separation and there should have been separation maybe 

years ago, the reality is that we need to have these two sides being 

able to work together. 

I think if you lumped all of the enforcement on one side and put 

a firewall of some sort between them and gave them a mission that 

was maybe different than the overall mission of the Immigration 

Service in coordination with the service side, then I think you have 

missed it. 

One of the things that I am concerned about, and I am sure it 

will be talked about often in the next several days and few weeks, 

is the fact that there is some thought about putting everything, 

Customs and all sorts of aspects of this, into one overall homeland 

security thing. While that may make some sense in a way, it obviously concerns me in that there would not be this ability for the 

two sides to work together toward a common mission. 

I think that would be the idea. There has to be a common mission, and we, of course, the people of the country, have to settle 

what that mission is through the members of Congress. But on the 

other hand, once that mission is settled, I think unless you have 

the ability to work together and function together, with certain separation, you might not be able to achieve that mission. 

Senator KENNEDY. Senator Brownback? 

Senator BROWNBACK. You chaired the subcommittee for a number of years. Did you take this topic up in legislation? You mentioned the earlier working group that brought this up. If so, what 

walls did you hit at that point in time? 

Mr. MAZZOLI. I had left Congress by 1998, when this report was 

filed, but we had talked about it often, a reorganization. But I 

think what happens is you have inertia, you have this ambivalence 

again in the mission, and all of that seems to defeat any effort to 

reorganize within the agency. So we took up measures that would 

have made these profound changes and the measures were never 

really adopted. 

Senator BROWNBACK. Measures similar to what you are seeing in 

the bill that we have put forward here? 

Mr. MAZZOLI. Yes, exactly. This always appeared to me to be the 

way to go, the way you and the Chairman have introduced, would 

be to have separation of function, to have some authority at the 

head of these separated functions, have those individuals responsible to one who himself or herself has clout. 

One of the concerns I have about the House bill—and others 

might testify more knowledgeably than myself to that bill, but it 

concerns me that a third person in the rank of attorney general in 

the Justice Department may not have that kind of clout or visibility or power or authority or sway that I think that individual 

has to have to do two things. 

One is to run the agency, whatever the agency looks like when 

you hit the conference report, but also to keep in mind that that 

function is going to be changing, because this debate goes on. In 

Kansas, in the Courier–Journal, the lead story of the particular 

day was the fact that the House passed the reorganization bill for 

13

INS. This is not Miami, this is not L.A., this is not Chicago or New 

York or Boston. This is Louisville, Kentucky, which suggests, as in 

Kansas, that this is becoming an issue in the heartland. This is an 

issue all over. 

So the people of America will be involved in establishing what 

the mission of this new agency will be, and so the director needs 

to have authority and needs to have an ability to convince people 

in Government, as well as to carry the discussion in a nationwide 

setting, as to what exactly our immigration policy will be. Is it open 

borders, closed borders, more people, fewer people, trained people, 

untrained people? Until that message is clear, it is pretty hard for 

the INS even today and in the future to follow through. 

Senator BROWNBACK. I agree with you on that, obviously. In putting forward the bill, I think the importance of with what immigration is and what border issues are and the significance of those, 

you need to get somebody of a stature that can be able to voice a 

position, and that is what we are trying to create, this position that 

is along the lines similar to the head of the FBI. We have that forward as well. 

Mr. MAZZOLI. If I might mention something Senator Feinstein 

said that I think is on target, it is in my prepared statement but 

not in my opening remarks, and that is I think some sort of hire/

fire authority—whatever you can give in this day and age of organized Government, that sort of hire/fire authority must be given to 

this individual because that individual will simply be hampered, 

hamstrung, and completely unable to perform the full function. 

Unless you can get people in there and move them around, not 

capriciously and not without attention to their human rights and 

civil rights——

Senator BROWNBACK. Due process. 

Mr. MAZZOLI. I think, Senator Brownback, very much that there 

ought to be some real new approach that you might take in this 

final effort to give that individual more control than maybe his or 

her counterparts have in Government today. 

Senator BROWNBACK. Thank you, Mr. Chairman. 

Senator KENNEDY. Senator Leahy, our chairman. 

Chairman LEAHY. Thank you, Mr. Chairman. I am glad you and 

Senator Brownback are having this hearing. Of course, it is great 

to see our friend, Congressman Mazzoli, back here. The chairman 

and I joke periodically about my mixed heritage. Your comment 

about your parents raising their hand and taking the oath—I think 

of my mother’s family coming here from Italy, how they must feel, 

or my wife’s family coming here from Canada. 

We talk about the INS. There are a lot of great employees there, 

as we know, whom we have to use to get a handle on this problem, 

and there are problems. I know that the Eastern Service Center in 

St. Albans, Vermont, has done a great job providing immigration 

services and trying to weed out those who fraudulently seek it. But 

their workload keeps increasing, so much so that I think they took 

the cafeteria and turned that into additional work space. They 

have had a number of people working out of their homes to do it. 

The Law Enforcement Support Center in South Burlington, 

Vermont, provides criminal background information about aliens to 

all of our law enforcement agencies. It is on duty 7 days a week, 

14

24 hours a day. Interestingly enough, one day when we had about 

a 14-inch snowfall overnight and people wondered if it would still 

be open, they said, of course, it was. I mean, it was 14 inches, not 

40 inches. That is no real problem in Vermont. We have the Swanton Border Patrol Sector, and so on. 

What I worry about is I don’t want to see a reorganization for 

the sake of having a reorganization. I know partly out of frustration, the House bill passed heavily. But I think, for example, asylum seeks need more protection than they have, and I was glad to 

see that Senator Kennedy and Senator Brownback introduced new 

legislation today which I think covers some of the problems. 

You made reference to this in your testimony now, and in your 

written testimony more about it, that sometimes INS employees 

get so many conflicting directives, both from their superiors and 

from Congress, that they are not sure just what it is they are supposed to do. 

How do we get a hold of that? 

Mr. MAZZOLI. Senator Leahy, first of all, I thank you for bringing 

up the fact that we partly share a common heritage. I am happy 

to say that we even actually are distantly related. I always at least 

like to say that. 

Chairman LEAHY. I would be proud of it. 

Mr. MAZZOLI. So would I. 

How do we get our hands around it? I think it is going to be 

something that the current members of Congress and maybe people 

like me who were here and who have a background in the field will 

have to become involved in. We want to certainly avoid the term 

that Senator Brownback used, ‘‘xenophobia.’’ We don’t want to be 

xenophobes. On the other hand, sometimes Al Simpson was fond of 

saying that you can’t just talk about this issue quoting Emma Lazarus and the ‘‘New Colossus’’ all the time, either way. 

So I think that, first of all, you have to have sensible people, 

thoughtful people who will engage themselves in a long-term effort 

to decide what is going to be in the national interest, what is going 

to be the way that we can remain a strong, vibrant Nation economically, socially, morally, and politically. 

It is not easy because it deal with numbers, it deals with family 

relationships, it deals with job skills, it deals with language skills, 

it deals with demographics. But in the last analysis, I have the 

confidence, having worked with this for a long time and having 

worked with people like Peter Rodino and Ham Fish and people 

like Jerry Tinker and others who led us in the early 1980s—I have 

a belief we have people in this Nation, Senator, who can be involved in that and would happily help to move this debate forward. 

I think the only way we can help INS help itself is certainly by 

reorganizing it, giving it modern tools, whatever the agency is 

going to be named. But in the last analysis, we have to be sure to 

give it a clear-cut mission and mandate and a series of definable 

goals and a timetable to reach them. That is not easy, but I think 

it is something that this individual who will head up this agency 

can at least begin doing. 

Chairman LEAHY. They have law enforcement and also immigration services, and you can’t rob one to support the other. You have 

got to have adequate resources in both. 

15

Mr. MAZZOLI. That is exactly right, and you brought up something that is important and I would like to extend it just a little 

bit further, and that is the fact that processing the paper is not 

what you would call in a career sense sexy work. Enforcement is, 

and I think somehow we have to make the processing of paper, the 

adjudication phase of it, the service to the public phase, as important, as rewarding, and as rewardable as doing something at the 

border. 

Beyond that, I think with regard to the Consular Service, Secretary Ryan is one of my great friends. I think she is one of the 

great people in Government of all time, but people in the Consular 

Service don’t always get the attention they need to get within their 

own cones, as they call them, for their own career advancement. 

So in a parenthetical sense, anything that can be done to raise 

the stature and status of consular officers who are doing this work 

abroad—they are the first point of defense, if you will, to our homeland right there in some foreign capital. That, along with raising 

the stature and status of people who work in the service sector of 

this new agency, I think would be extremely helpful both in eliminating backlogs, but also in making sure that the funds, as you 

say, are adequately disbursed and allocated. 

Chairman LEAHY. Thank you very much, and thank you, Mr. 

Chairman. Attorney General Ashcroft is downstairs. We are doing 

an Appropriations Committee meeting on the same thing, and I am 

going to go back down there. 

Senator KENNEDY. Thank you very much. 

Mr. MAZZOLI. Thank you. It was great to see you, Senator. 

Senator KENNEDY. The good Congressman wanted to be out at 

3:15, so we have 5 minutes left for Senator Feinstein and Durbin. 

I apologize to them, but we thank you so much for being here. 

Senator FEINSTEIN. I just want to thank you for caring about this 

and being here today. It is very much appreciated. 

I was just reading a CRS analysis of the various proposals that 

have been put forward, and one of the things that CRS says about 

creating two separate bureaus is that the service bureaus have always been essentially fee-driven, while the enforcement bureaus 

essentially appropriations-driven. You alluded to that. 

Mr. MAZZOLI. Yes. 

Senator FEINSTEIN. You really want to have equal branches here, 

if there is going to be a division. CRS seems to say that it could 

create some problems by having separation because to run the adjudication, let’s say, for naturalization, you have got to do the background checks which require the Enforcement Division. 

How do you see that working? 

Mr. MAZZOLI. I am not sure I see it any way more vividly than 

the people at CRS do. It is murky. We will be feeling our way 

through, and I think that is why it is important to have coordination, to get back to Senator Kennedy’s earlier question about putting all enforcement in one box and all service in the other box. 

They work together. Whether it is a situation at the border or 

whether it is a situation in the interior or whether it is the processing of a piece of paper, both sides have to be able to work together and talk with one another, despite any sorts of firewalls you 

might build. 

16

You shouldn’t necessarily totally abandon fees. That is all part 

of it, and service to the public. If it is a worthy service and done 

timely, it is worth something, but clearly just to have it by fees 

alone diminishes that aspect of the work. It makes it not of the 

same stature, if you will, as where you get appropriations from the 

Appropriations Committee. 

So I would think that the final outcome here will be more a look 

at appropriations, more a pooling of money, even though you have 

separated agencies. This is where the important thing that you 

have in your bill is, is the director has budget authority, which I 

don’t think is in the House-passed version, or at least not to that 

extent, so to give that budget authority. And then the disbursal 

and the allocation can be more easily made between fees and appropriations so that you don’t abandon either one of them. 

Senator FEINSTEIN. Just quickly, another thing that I think was 

very disappointing to some of us was that there are 4 to 5 million 

biometric border-crossing cards. The border-crossing cards were actually given to people, but the readers were never put in place. 

It seems to me, from a management perspective, don’t distribute 

the cards until you have the system in place able to function so 

that the cards function. They don’t really function in the way they 

are supposed to, and so I am very grateful for the comments you 

made with respect to management because we can reform the system and have the same problems unless we are really able to bring 

in modern management techniques of setting goals and holding 

people responsible for achieving them. 

Mr. MAZZOLI. This may be something new and different for Government. You may be on the verge of doing something that hasn’t 

been done in Government reorganization up to now. It is not going 

to be easy, but I think it is very important. 

Senator FEINSTEIN. Thank you very much. 

Senator KENNEDY. Senator Durbin? 

Senator DURBIN. I don’t want to hold you if you have to leave. 

Mr. MAZZOLI. I do, but I would be happy to answer any questions. 

Senator DURBIN. I will be very brief. Thank you for being here. 

Mr. MAZZOLI. Well, thank you very much. It is always good to see 

you. 

Senator DURBIN. Ron Mazzoli’s name has been synonymous with 

a thoughtful approach to immigration for decades and your service 

to Capitol Hill, and we are glad that you are with us today. 

I think one of the observations which I have made and I think 

you would agree with is that technology has to be a major part of 

improving the service at the INS. One of the most stunning things 

I learned as a United States Senator representing 12.5 million was 

that 75 percent of my case work involves one agency, the INS. 

This is the only agency where I can consistently expect at least 

one call a month that I have to make to the commissioner to deal 

with a problem that I can’t resolve otherwise. I can’t say that for 

any other agency of the Federal Government. 

Mr. MAZZOLI. I think if there is anything that sticks in my mind 

after all these years is the number of hearings we had, which are 

legion, on this whole issue of mechanization, of using electronic devices. Somehow, nothing ever seemed to quite get done, so whatVerDate Mar 21 2002 15:28 Apr 02, 2003 Jkt 086041 PO 00000 Frm 00020 Fmt 6633 Sfmt 6602 C:\HEARINGS\86041.TXT SJUD4 PsN: CMORC
17

ever you do has got to be strongly assertive in this area of using 

modern-day technology. 

It seems to me that there is no reason why we are in this predicament that we are in today, and a good leader with the proper 

management tools would be able to move the agency forward. 

Senator DURBIN. I really dislike this stovepipe cliche, but it 

seems to be an apt characterization, where we don’t have agencies 

in communication with one another. It is hard to criticize what 

happened on September 11 when we realize that there was literally 

no computer communication between the FBI and most of the other 

agencies. That has to change if we are going to do this in an effective manner. 

The last point I will make to you is this: I hope we don’t oversell what we are about to do. As important as it is and as good as 

it is, America is still in a struggle somewhere between love and 

loathing when it comes to immigration, depending on the economy, 

depending on terrorism. 

We have to really come to grips as a Nation with where we are 

headed. I don’t think we are looking at it honestly and realistically. 

In fact, I think we avert our eyes from the real problem. You didn’t, 

and as a leader with Senator Simpson you really brought us all to 

the point where we started thinking about it more seriously. I 

thank you for joining us today. 

Mr. MAZZOLI. Thank you very much, Senator. I appreciate it. 

Senator KENNEDY. We kept our word. You are going to get back 

there. We thank you so much. 

Mr. MAZZOLI. Thank you. 

Senator KENNEDY. As we move along, we will consult with you 

because we value very much your presence and your friendship and 

your continuing involvement. 

Mr. MAZZOLI. Thank you so much. 

Senator KENNEDY. I will excuse you, and if you come right 

through here, we have got someone who is all set for you. 

Mr. MAZZOLI. Thank you very much. I appreciate it. It is nice to 

be here. 

Senator KENNEDY. Thank you very much for being here. 

On our next panel, Paul Virtue is a partner with the law firm 

of Hogan and Hartson, at which he represents individual, business, 

and institutional clients related to immigration law and policy. He 

has more than 18 years of experience in immigration law, policy, 

and regulation. Before joining Hogan and Hartson, he served as 

General Counsel of the Immigration and Naturalization Service, 

where he served as the agency’s chief legal officer. 

Stephen Yale–Loehr is with the American Immigration Lawyers 

Association. He is the co-author of ‘‘Immigration Law and Procedure,’’ the leading 20-volume treatise on immigration law which is 

considered the standard reference in this field of law. He also 

teaches at Cornell Law School. Previously, he worked in immigration policy at the Carnegie Endowment for International Peace. He 

is co-editor and executive editor of two leading immigration law 

newsletters. 

They are both highly respected in their fields and I am pleased 

they are here with us today to share their insights on this important subject. I thank the witnesses very much for being here. 

18

Mr. Virtue, do you want to start? 

STATEMENT OF PAUL W. VIRTUE, FORMER GENERAL COUNSEL, IMMIGRATION AND NATURALIZATION SERVICE, WASHINGTON, D.C. 

Mr. VIRTUE. Mr. Chairman, distinguished members of the committee, I am honored to be here today to offer my thoughts on the 

efforts to improve the structure by which our immigration and nationality laws are administered. 

As I mentioned in my written testimony, after having left the 

Immigration Service my practice is limited to immigration and nationality law. The majority of that involves filing petitions, filing 

applications for benefits before the Immigration and Naturalization 

Service, as well as the Department of Labor and the Department 

of State. 

But also, for our firm at least, we represent a significant number 

of people on a pro bono basis who are in detention facilities who 

are appearing before immigration judges in immigration court. Nobody really practices in this area for very long without having 

spent a significant amount of time on the telephone with enforcement personnel at the ports of entry, usually in the begging in the 

position. So we have a great deal of exposure to both the adjudications responsibilities of the Immigration Service as well as the enforcement areas. 

My written testimony talks about the mission of the agency and 

the numbers and just the daunting task that the agency faces. So 

I won’t repeat that here, but it is there and I think the committee 

well recognizes it. 

In my view—and these are my thoughts; they don’t represent the 

views of the firm—any restructuring plan has to have certain components in order for it to accomplish the goal. The goal that I think 

a restructuring plan should have is an organization, as I mentioned, that will operate with a clearly defined mission, and that 

mission developed with its customers’ needs in mind, administered 

in a fair, prompt—I can’t oversize prompt—and consistent manner, 

and just in terms of those components, a clear line of authority and 

accountability. 

As you all know, the INS has more than doubled in size during 

the last 10 years, to about 37,000 employees, and the agency may 

add as many as 10,000 more employees over the next couple of 

years. The goals of consistency and accountability would be impossible to achieve in such a large and diverse organization without 

a clear understanding from the head of the agency down to the 

clerk in the mail room of who is in charge and who has responsibility for what issues—very important and, in my opinion, critical 

to the running of the agency. 

I have talked in my written testimony about our experience in 

1990 with an organizational structure that had all field offices reporting directly to one person in headquarters. The scope of responsibility was dramatic and, in fact, it simply didn’t work. Calls to 

headquarters went unanswered and it was difficult to have clear 

direction in policy under that structure. It was abandoned, but it 

does serve as an example of how a change in the management 

19

structure of the agency can have substantial consequences for lines 

of authority and the establishment and implementation of policy. 

The proposed division of the INS into service and enforcement 

bureaus will have a substantial effect on the management structure of the agency at the field offices, those people who are closest 

to the agency’s customers. I believe that that is consistent with the 

committee’s goals and with the goals of focusing attention and resources on the business of enforcing and administering the country’s immigration laws. 

A second component has to be the coordination of policy guidance, as Congressman Mazzoli mentioned, between service and enforcement components. For consistent administration of immigration policy, both functions should be retained in a single agency 

under the leadership of a strong director with the all-important 

budget authority and accountability to both the Attorney General 

and the oversight committees for the responsibility of establishment and implementation of that immigration policy. 

One example that I gave in the written testimony was of a regulation that was recently proposed to change the structure by which 

people who enter the U.S. as visitors are granted periods of stay 

here. The standard period of stay is a 6-month stay under the current regulations. The proposal is to eliminate that and make it 

more consistent with the stated purposes the individual has for entering the United States. 

I have pointed out here how that can affect both the inspection 

process which is under the INS restructuring proposal and the enforcement function, and I think most people have accepted that. 

Yet, the same policy will be applied by INS examiners at the field 

level. So there has to be coordination so that the implementation 

of such a policy can be consistent at the field level. 

The other aspect of that, of course, is just to get to the point 

where the Immigration Service proposes such a change in policy requires at the headquarters level coordination between services and 

enforcement even to publish for a regulation for implementation. 

Also, in terms of national policy we need to be able to speak with 

one voice. We need to have an agency that speaks with one voice 

with respect to immigration policy. For example, in the aftermath 

of the September 11 events, we saw a number of examples of antiimmigrant sentiment on our campuses, in the workplace, on numerous occasions. 

It was important during that time and in that atmosphere that 

the INS and the Justice Department send a strong enforcement 

message—everyone accepts that—but at the same time continuing 

to facilitate entry and provide services for millions of law-abiding 

foreign nationals who are very important to our Nation. That, in 

my view, can only be done where you have strong leadership within 

one agency. 

The third component is structural flexibility to meet unanticipated or unforeseeable challenges. The House bill that was passed, 

in my view, goes too far in terms of dictating the structure below 

the headquarters level. On a quick read, the bill introduced by the 

chairman and Senator Brownback would seem to strike the proper 

balance of congressional direction and organizational flexibility. 

20

The fourth aspect has to be an integrated and shared information 

system, and few aspects of the INS really reflect its problems like 

the inadequacy of the agency’s information systems. The INS is 

embarked on a modernization program and it has to receive the resources and the flexibility to build that modern system. 

Finally, adequate funding and staffing levels for both bureaus. 

As mentioned earlier, the INS has doubled in size over the last 10 

years. The agency from all sources is in excess of $6 billion. When 

compared to other Federal agencies the INS growth has been dramatic, but we also need to compare that to the increase in workload of the INS. When you compare that, I think we will see that 

the agency has had a difficult time simply keeping up, and so much 

attention has to be paid to providing the resources to both of these 

bureaus in order to do the job. 

For example, on the enforcement side there are still only about 

2,000 investigators with interior enforcement responsibilities for 

the entire country. I have given an example in my written testimony about premium processing just as an example of how focusing resources on a particular issue can pay benefits. The program 

is working very well. I am not suggesting that it be applied across 

the board, but it is an indication of how resources can pay benefits. 

Again, I have outlined a number of principles in the written testimony. I appreciate the opportunity to be here and will be happy 

to answer any of the committee members’ questions. 

[The prepared statement of Mr. Virtue follows:]

STATEMENT OF PAUL VIRTUE, FORMER INS GENERAL COUNSEL, PARTNER, HOGAN & 

HARTSON, LLP, WASHINGTON, D.C. 

Mr. Chairman and distinguished Members of the Subcommittee, I am honored to 

be here today to offer my thoughts on efforts to improve the structure by which our 

immigration and nationality laws are administered. Currently, I am a partner with 

the firm of Hogan & Hartson, LLP here in Washington and my practice is limited 

to representing clients in immigration and nationality matters. Prior to returning 

to the private practice of law three years ago, I served as the General Counsel of 

the Immigration and Naturalization Service, an agency in which I held several legal 

and policy making positions during my sixteen-year career. My testimony today represents my own thoughts and observations and does not necessarily represent the 

views of my firm. 

Immigration policy is among the most sensitive, emotional, and potentially divisive issues the federal government is charged with administering. The numbers of 

people involved are staggering. In fiscal year 2000, some 900,000 permanent residents were naturalized. Nearly 850,000 people immigrate to this country each year. 

Another quarter of a billion foreign nationals visit the United States annually. Some 

five million or so undocumented aliens call the United States their home. Our agricultural, construction, manufacturing and service industries depend on foreign 

labor, documented and undocumented alike. During fiscal year 2000, over 71,000 

criminal aliens were removed from the United States. Fifteen of the nineteen foreign nationals directly involved in the devastating terrorist attacks of September 11, 

2001, were believed to have been inspected and admitted to the United States as 

visitors or students by the INS. 

The federal agency with primary responsibility for these and a host of related 

issues, the INS, has not undergone a fundamental change in its structure for the 

more than fifty years since it became a part of the Department of Justice. Restructuring alone will not cure the agency’s ills—many of which are not a product of the 

agency’s structure—but restructuring alone can make matters worse. Accordingly, 

I recommend proceeding carefully, thoughtfully and deliberately. Any restructuring 

proposal should have as its goal an organization that will operate with clearly defined mission objectives developed with its customers needs in mind and administered in a fair, prompt and consistent manner. 

To accomplish this goal the plan should contain certain fundamental characteristics:

21

• 1. Clear lines of authority and accountability; • 2. Coordination of Policy Guidance between Service and Enforcement 

Components; 

• 3. Structural flexibility to meet unanticipated or unforeseeable challenges; 

• 4. An integrated and shared information system; • 5. Adequate funding and staffing levels.

I do not claim to be an organizational expert or to have the definitive answer to 

the structural problems of the INS, but I have had the privilege of serving in senior 

agency positions with responsibility for the development and implementation of policies that cross the agency’s enforcement and services functions. I have also now had 

several years of experience representing clients before an agency widely criticized 

as being ill suited to its mission. It is from these perspectives that I offer my 

thoughts. 

CLEAR LINES OF AUTHORITY AND ACCOUNTABILITY

The INS has more than doubled in size during the last ten years, to about 37,000 

employees. The agency may add as many as 10,000 more employees over the next 

18 months. The goals of consistency and accountability are impossible to achieve in 

such a large and diverse organization without a clear understanding from the head 

of the agency to the mailroom clerk in the Texas Service Center of who is responsible for a given program at every level. In 1990, the INS experimented with a 

structure that eliminated middle management (the regional offices) and flattened 

the reporting structure so that each District Director and Chief Patrol Agent reported to one individual at a headquarters office of Field Operations. The scope of 

that individual’s responsibility encompassed the entire mission of the agency. The 

stated purpose of this approach was to remedy the perception within the administration and in Congress that the INS District Directors and Chief Patrol Agents 

were being left to fend for themselves by weak middle managers resulting in operational ‘‘fiefdoms’’ with as many as 55 different immigration policies. 

In this case, however, the cure proved to be worse than the disease. Predictably, 

the scope of supervision of the Associate Commissioner for Field Operations was 

simply too great. Requests by field managers for policy guidance, resources, approval of operational plans and other information overwhelmed the headquarters office. Phone calls and written requests from the District Directors went unanswered 

and their subordinate program managers began to look to the individual headquarters program offices, e.g. Investigations, Detention and Deportation, Examinations, for answers to their operational and policy questions. Though they lacked supervisory authority over the field offices as well as the means to ensure accountability, the program offices tried their best to accommodate the need for information. The result was a weaker management structure lacking in accountability and 

administrative chaos. The experiment was ultimately abandoned in 1993, when the 

regional office structure was reinstated. 

None of the proposed reorganization plans has suggested a return to such an unwieldy management structure, and we need not dwell on it, I simply offer it up as 

an example of how a well-intentioned change in management structure can make 

matters much worse. The proposed division of the INS into service and enforcement 

bureaus will have a substantial effect on the management structure of the field offices, those closest to the agency’s customers. This is consistent with the noble goal 

of focusing attention and resources and clarifying mission goals and priorities. I believe it can be accomplished only with a clearly established chain of authority and 

the careful selection of capable leaders for all critical management positions. 

COORDINATION OF POLICY GUIDANCE BETWEEN SERVICE AND ENFORCEMENT

COMPONENTS

It is logical to propose to divide the agency’s functions along service and enforcement lines. This approach is also consistent with existing internal delineations. 

However, it would be impossible (and unwise) to try to build a solid wall that divides the two functions. There will always remain many overlapping areas of responsibility between the service and enforcement bureaus. A recently proposed rule 

illustrates this point well. In response to concerns about the agency’s ability to monitor and control the alien population in the United States, the INS last month proposed to change its longstanding policy of granting business visitors and tourists a 

standard six-month period of stay, irrespective of the purpose or nature of their 

visit. The regulatory six-month period will be replaced with a period of stay that 

is ‘‘fair and reasonable for the completion of the stated purpose of the visit.’’ Inspectors at the ports of entry will make this determination on a case-by-case basis at 

22

the time of admission. If it is not clear whether a shorter or longer period would 

be fair and reasonable under the circumstances, the alien will be admitted for 30 

days. Once admitted, the visitor may apply for an extension of stay, which may be 

granted for a fair and reasonable period not to exceed six months. Applications for 

extensions of stay are adjudicated by INS Examiners. 

The restructuring proposal offered by the INS would place the immigration inspectors within the enforcement bureau and, while applying the enforcement label 

to inspectors has been the subject of considerable discussion in the past, the current 

significance of their role in protecting the country against the admission of terrorists 

seems to have quieted the debate. INS Examiners are considered services bureau 

employees under any proposal. Thus we have two categories of employee employed 

by two separate bureaus applying the same regulation to the particular circumstances of the same individual. The need for policy coordination is readily apparent. For example, the enforcement bureau may decide that, for efficiency reasons, it will give every applicant a thirty-day stay preferring to allow the examiners 

look at the particulars of each case in the course of adjudicating the extension petition rather than backing up port of entry traffic by trying to apply a new set of complicated criteria. The predictable result would be a flood of extension applications 

being submitted to the services bureau leading to an inevitable backlog. 

This is just one of thousands of examples. Many disputes may be amenable to resolution at the field office level, but for agency-wide consistency and accountability 

there must be provision for coordinating policymaking and implementation at the 

headquarters level. In addition to structural obstacles to policy coordination, the 

INS, unlike the State Department, lacks a repository for sub-regulatory policy 

memoranda and field guidance. Agency clearance of field manuals, which were intended to replace the outdated INS Operations Instructions, has been slow. In fact 

only one, the Detention Operations Manual, is available on the INS website. Issues 

such as this one should be fixed as they contribute to a public perception that the 

agency is unresponsive to the need for answers to policy questions. 

STRUCTURAL FLEXIBILITY TO MEET UNANTICIPATED OR UNFORESEEABLE CHALLENGES

Congress should exercise restraint in the level of detail in which it directs a new 

structure for the administration of the immigration and nationality laws. Currently, 

the Immigration and Nationality Act contains no language dictating the structure 

of the agency save a relatively recent exercise of congressional will that directs the 

Attorney General to allocate to each State not fewer than 10 full-time active duty 

agents of the INS to carry out the functions of the Service, in order to ensure the 

effective enforcement of the Act. The structure of the agency is left, with the exception of a certain amount of overreaching reflected in the authorization and appropriations processes, to regulation by the Attorney General. 

To the extent possible, this approach should be maintained. Detailed Congressional direction on the structure of field offices, in particular, can reduce rather than 

enhance the agency’s ability to adapt to new challenges, including demographic 

changes. Personally, I believe that the services bureau field offices should be sufficiently flexible to serve the particular community they serve. In some locations, that 

may mean small storefront offices designed to address certain needs. In other communities, perhaps a larger full-service operation is needed. The agency has to have 

the freedom to make such choices, preferably taking into consideration the views of 

its customers. 

AN INTEGRATED AND SHARED INFORMATION SYSTEM

Few aspects of the INS reflect its ills like the inadequacy of its information systems. The agency is embarking on an unprecedented effort to modernize its office 

equipment, install and integrate sorely needed enterprise architecture, improve data 

capture and sharing capacities and harness the fascinating array of technological 

tools needed to improve the delivery of services and enhance its law enforcement 

activities. The importance of a Chief Information Officer with budget authority and 

responsibility for technology improvement for both bureaus cannot be overstated. 

ADEQUATE FUNDING AND STAFFING LEVELS

As noted earlier, the INS has doubled in size during the last ten years and is 

poised to grow by another 10,000 employees during the next year and a half. The 

agency’s budget from all sources is in excess of $6 billion. When compared to other 

agencies during the same time period, the growth of the INS has been phenomenal. 

However, the INS had and still has a long way to go to catch up and when compared to its workload, the agency has struggled to keep up. The INS still has only 

2,000 investigators to handle interior enforcement responsibilities for the entire 

23

country. On the services side, applications for adjustment of status can still take 

two years or more to complete. 

Last summer, the INS introduced its new ‘‘Premium Processing’’ program. For a premium of $1,000, the INS guarantees a response within fifteen calendar days on 

certain business related nonimmigrant visa petitions. I cite this program not to suggest it as an answer to backlogs, but it is a perfect example of what is possible with 

the focused application of resources. Indeed, one goal of the service bureau should 

be to retire the premium process in favor of a much faster standard process. 

CONCLUSION

The dual missions of the INS are important and they affect millions of people. 

The Congress should exercise great care as it undertakes to outline structural reforms that will enable the INS or its predecessor(s) to better accomplish those missions. I have outlined my thoughts on several principals I believe to be essential to 

the undertaking. I would be happy to answer any questions you may have about 

those principals or any other related issues.

Senator KENNEDY. Thank you very much. 

Mr. Yale-Loehr, thank you very much for being here. 

STATEMENT OF STEPHEN YALE-LOEHR, AMERICAN 

IMMIGRATION LAWYERS ASSOCIATION, ITHACA, NEW YORK 

Mr. YALE-LOEHR. Thanks for inviting me. 

My oral remarks are going to focus on three themes: first, principles that should guide any INS restructuring effort; second, an 

evaluation of how well various restructuring proposals meet those 

principles; and, third, an admonition that restructuring is not a 

panacea and that more must be done to make our immigration system perform effectively. As you will hear, a lot of my testimony coincides with our prior witnesses. 

First, I believe that reorganization has to look at four principles: 

first, appoint a high-level person with authority to be in charge. As 

stated before, the person has to integrate policymaking with policy 

implementation. Accountability and leadership has to come from 

the top. 

Second, coordinate the enforcement and adjudication functions. 

As we all know, political consensus exists today to separate the 

INS enforcement and adjudication functions. But until this hearing, it seems to me too much attention has been paid to separation 

and not enough attention has been paid to coordination. 

It is important because enforcement and adjudication are two 

sides of the same coin. Almost every immigration-related action involves both components. For example, a Border Patrol person picks 

up someone at the border says, I think you are illegal. The individual says, no, I am really a permanent resident, but I don’t happen to have my permanent resident card on me. 

What do you do? You need to coordinate the adjudication side to 

see whether the person really is a permanent resident before the 

enforcement side decides whether to kick the person out or not. 

That is an example of how enforcement and adjudication have to 

always work together, no matter what kind of reorganization you 

do. 

The third principle is that you have to provide adequate resources for the two functions. As Representative Mazzoli mentioned 

already, you have to have direct funding of adjudications to supplement the user fees that are already going on there. 

Fourth, as we all realize after September 11, we have to ensure 

that any reorganized immigration function contributes to our naVerDate Mar 21 2002 15:28 Apr 02, 2003 Jkt 086041 PO 00000 Frm 00027 Fmt 6633 Sfmt 6602 C:\HEARINGS\86041.TXT SJUD4 PsN: CMORC
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tional security. We are all aware of that from the enforcement side 

of the immigration function, but we should also pay attention to 

the fact that adjudication also has an enforcement function, and 

some of that has been downplayed until this hearing. 

Next, I want to analyze pending reorganization proposals. There 

are at least four types floating around in Washington. The administration’s proposal includes a strong Commissioner, clear lines of authority, and separation, with coordination, of the agency’s enforcement and adjudication functions. Many of these same concepts are 

in the bill that you have just introduced and which I commend. But 

it is unclear whether the administration wants to go forward with 

that proposal now that it seems to have tepidly endorsed H.R. 

3231, the House bill. 

Second, homeland security chief Tom Ridge has proposed consolidating some INS functions, including enforcement, inspections, and 

the Border Patrols, with those of the Customs Service. Members of 

Congress, including Senators Lieberman and Specter, have either 

introduced or are considering introducing measures that would create such an agency. 

While enhanced coordination of border-related functions is important, inter- intra-agency coordination would be harmed by any proposal that splits off INS inspections and enforcement from the entity responsible for overseeing other aspects of our immigration system. As I mentioned before, it is essential to have one person in 

charge of all immigration functions to ensure consistency. A border 

security function that subsumes the enforcement of immigration 

but which would be separated from adjudications would lead to ineffective enforcement and adjudication. 

Third, H.R. 3231, the House bill which was recently passed, has 

already been summarized here. I believe that the new associate attorney general that would be created under that bill would have insufficient authority, not enough clout, to be able to adjudicate and 

be able to function effectively under that bill. There is too little coordination between the two bureaus that would be set up there to 

make that effective, in my view. 

Fourth, the Kennedy–Brownback bill. This bill, as you know, 

would abolish the INS and replace it with an Immigration Affairs 

Agency. I believe that this bill would get an A if it was in my immigration seminar at Cornell Law School. It separates and coordinates the enforcement and adjudications functions. It has clear 

lines of authority and includes helpful funding provisions. It is the 

only proposal that I have seen that meets all the criteria that I 

have outlined above. 

Last, I want to talk about going beyond reorganization. Reorganization is just one component in making our system effective. We 

need to think about, number one, clearing up the backlogs before 

we can do any reorganization. 

Number two, we have to have an effective reorganization plan, 

but then we have to have the funding to make it work. 

Third, we have to have effective implementation of the reorganization plan, with clear management responsibility. 

Fourth, I think Congress needs to weigh in and, as the other witnesses have talked about, we need to have a clear immigration mission statement. What does immigration mean to our society? Once 

25

we get that clearly defined as a people and as Congress, we can 

then give that to the immigration system to make sure that it functions effectively. 

It is a long road that we are going down. The immigration agency did not become ineffective overnight. Any one bill will not be 

able to correct all immigration ills. In my view, however, the Kennedy–Brownback proposal is the best first step on the long road 

that we have to take. 

Thank you very much. 

[The prepared statement of Mr. Yale–Loehr follows:]

STATEMENT OF STEPHEN YALE-LOEHR, AMERICAN IMMIGRATION LAWYERS

ASSOCIATION, ITHACA, NEW YORK

Mr. Chairman and distinguished Members of the Subcommittee, I am Stephen 

Yale-Loehr. I teach immigration and refugee law at Cornell Law School in Ithaca, 

New York, and am co-author of Immigration Law and Procedure, a 20-volume immigration law treatise that is considered the standard reference work in this field of 

law. I am honored to be here today representing the American Immigration Lawyers 

Association (AILA). AILA is the immigration bar association of more than 7,800 attorneys who practice immigration law. Founded in 1946, the association is a nonpartisan, nonprofit organization and is an affiliated organization of the American 

Bar Association (ABA). 

AILA members take a very broad view on immigration matters because our member attorneys represent tens of thousands of U.S. families who have applied for permanent residence for their spouses, children, and other close relatives to lawfully 

enter and reside in the United States. AILA members also represent thousands of 

U.S. businesses and industries that sponsor highly skilled foreign professionals 

seeking to enter the United States on a temporary basis or, having proved the unavailability of U.S. workers, on a permanent basis. Our members also represent asylum seekers, often on a pro bono basis, as well as athletes, entertainers, and international students. 

Given AILA’s concerns with all aspects of our immigration function, I am especially pleased to be here today to express AILA’s views on how best to restructure 

the Immigration and Naturalization Service (INS). This is neither an academic exercise nor one with solely bureaucratic implications. Rather, reorganization has consequences for U.S. citizens, legal permanent residents, refugee and asylees, American business and our national security. What is at stake here is whether people 

will be able to naturalize, get their green cards, and find safe haven; whether our 

economy will be strengthened by needed foreign workers; and whether the INS will 

contribute its share to enhancing our security. 

INS restructuring tops the congressional agenda for many reasons, not the least 

of which is that the agency has been unsuccessful in fulfilling its dual missions of 

enforcement and adjudications and is ill-equipped to respond appropriately to our 

nation’s security needs post-September 11. Several bills have been introduced to reform the agency that reflect these concerns, and the INS is in the process of implementing the Bush Administration’s own administrative proposal. 

ESSENTIAL ASPECTS OF A SUCCESSFUL REORGANIZATION OF THE INS 

As Congress and the Administration address restructuring the INS, it is important to emphasize the following points:

• Passing legislation to restructure the INS is one step in a multi-step process, the end result of which needs to be effective, efficient, and fair adjudications and enforcement. Before restructuring, the agency needs to eliminate its current huge backlogs. The INS also must implement internal management and cultural changes essential for meaningful reform. 

• Congress can either make or break any restructuring plan due to its central role in creating and maintaining our federal immigration function. Congress must end its practice of sending the agency conflicting, complicated, 

unfunded and incomplete mandates that have severely diminished the 

INS’s ability to fulfill its missions. Furthermore, many of these mandates 

stem from rapid and often contradictory changes in our immigration laws 

and reflect the absence of an enduring consensus on immigration issues and 

priorities. Congress cannot expect the INS to effectively implement policies 

that are contradictory and change rapidly. No reorganization can succeed 

26

if Congress does not change its relationship with the INS. In fact, without 

such change, we will be right back to where we are today, no matter which 

reorganization plan is implemented. 

• Any meaningful restructuring of the immigration function needs to include adequate funding, especially given the increased demands resulting 

from the September 11 attacks. Since the INS’s enforcement and adjudication functions are both in the national interest, each should receive from 

congressional appropriations the funding needed to fulfill mandates. While 

the enforcement function now receives appropriated funding, the adjudications function is supported largely through user fees. The funding level 

achieved through these fees is inadequate and must be supplemented by direct federal appropriations. Finally, adequate funding needs to be appropriated to create reliable information systems that are regularly updated. 

• While an effective, efficient and fair INS restructuring is essential, such 

reform will not in itself address many pressing concerns. Reforming the 

INS will not alter the fact that U.S. immigration policy needs to be changed 

to make legality the norm. Currently families face long delays before they 

can be reunited, no visa exists to bring in certain kinds of needed workers, 

and the 1996 immigration laws eliminated due process for many legal permanent residents. Reforming the INS will not address these and other concerns, but leaving these concerns unresolved will stand in the way of a successful reorganization of the agency. 

The Administration and Congress need to undertake INS reorganization in a way 

that takes into account, and does not disrupt, the enforcement and adjudication requirements of our post-September 11 world. In our world of security concerns, it is 

necessary to fully integrate our immigration functions. Accordingly, the terrorist attacks reinforce the need for someone in charge with clout who can articulate our 

nation’s immigration policies, someone with more power than the current Commissioner. They also reinforce the fact that both adjudications and enforcement are 

equally in the national security interest and are most effectively implemented when 

they are closely coordinated and based on a common understanding of the law and 

policy. 

• Reorganizing the INS can and should be a nonpartisan effort that brings 

together the best thinking from Republicans and Democrats, experts in the 

field, and the INS’s customers. 

WHY WE NEED TO RESTRUCTURE THE INS, AND WHAT DIRECTION AN EFFECTIVE

RESTRUCTURING SHOULD TAKE

As the federal agency responsible for both enforcing U.S. immigration law and adjudicating applications for naturalization and family and business immigration, the 

INS needs to function efficiently, effectively, and fairly, and with our national security concerns in mind. The September 11 attacks underscore the fact that the agency’s two functions, enforcement and adjudications, are both in the national interest 

and merit the attention of and support from Congress. 

The INS has been severely criticized for failing to effectively, consistently, professionally, and humanely enforce immigration laws through nationally set priorities. 

Since September 11, many have concluded that the agency is not up to the challenge 

of protecting us from terrorists because of fears that we cannot control our borders 

and reports that some of the terrorists were in legal status, others had overstayed 

their visas, and the status of others is unknown because of the lack of records. 

‘‘Fortress America’’ is impossible to achieve and not in our national interest, but 

we can better equip our immigration function to help make us safer. A smart reorganization of the INS will help accomplish that goal, as will the passage of the Enhanced Border Security and Visa Entry Reform bill. That legislation will enhance 

our intelligence capacity and develop layers of protection so that our land borders 

are not our first line of defense. AILA applauds Senators Edward Kennedy (D–MA), 

Sam Brownback (R–KS), Jon Kyl (R–AZ), and Dianne Feinstein (D–CA) for their 

groundbreaking efforts on the Border Security measure, and supports its swift passage into law. 

Why has the INS faltered in carrying out its missions? Both the INS and Congress are to blame. First, the agency needs to better manage its enforcement and 

adjudications responsibilities, which themselves need to be both better differentiated 

and coordinated. Second, the agency has had problems dealing with the vast and 

complicated changes in immigration law and the unprecedented growth in its size 

and responsibilities. Third, the continued absence of adequate resources for adjudications makes it difficult for the INS to fulfill its responsibilities in this area. Finally, Congress has contributed to the agency’s problems because of conflicting, comVerDate Mar 21 2002 15:28 Apr 02, 2003 Jkt 086041 PO 00000 Frm 00030 Fmt 6633 Sfmt 6621 C:\HEARINGS\86041.TXT SJUD4 PsN: CMORC
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plicated, unfunded, and incomplete mandates. As a result, people wait years to reunite with close family members and obtain U.S. citizenship, and businesses are 

forced to wait years to fill jobs with needed legal immigrants. Moreover, the INS 

has been crippled because it is granted neither the financial resources nor adequate 

authority (such as access to relevant databases of other federal law enforcement 

agencies) to carry out its functions successfully. 

AILA is on record urging the creation of a new, independent cabinet-level department or agency combining all current immigration-related functions of the INS and 

the Departments of Justice, State, and Labor. Such an agency should separate, but 

coordinate, immigration services and enforcement functions. Just as we have an Environmental Protection Agency to coordinate all environmental issues, we also 

should have a single, cabinet level immigration agency to handle all immigration 

issues. If a new, independent agency is unfeasible, AILA urges the creation within 

the Department of Justice (DOJ) of two separate, but coordinated, entities for services and enforcement. These two bureaus should be staffed by trained individuals 

who can rise within the ranks of their respective bureaus based on their experiences. (Unlike current circumstances, the two bureaus would need to offer their employees similar benefit and retirement packages.) Someone in charge who reports directly to the Attorney General should oversee these bureaus. Having such a person 

in charge would improve accountability by fully integrating policy making with policy implementation, coordinate the efforts of the two bureaus, ensure direct access 

to high-level officials within the executive branch, and attract top managerial talent. 

PROPOSED INS RESTRUCTURING PLANS

Several plans have been proposed to restructure the INS. These plans reflect different visions of how best to restructure the agency. Most reflect the consensus that 

the enforcement and adjudication functions should be separated. The plans differ, 

however, on whether there should be a strong central authority, what the role and 

responsibilities of the enforcement and adjudications divisions should be, and 

whether these two functions should be coordinated. Such differences are significant 

and can play a leading role in determining whether reorganization efforts will ultimately succeed or fail. 

The Bush Administration Plan: 

Bush Administration officials have emphasized the need for fundamental reform 

of the INS, and support separating enforcement and adjudications to address competing priorities and problematic chains of command. On November 14, 2001, the 

Administration announced a reorganization plan, the details of which include many 

provisions that were part of the bipartisan legislation introduced in 1999 by Senator 

Edward Kennedy (D–MA) and former Senator Spencer Abraham (R–MI). Many of 

these same provisions are included in the bill soon to be introduced by Senators 

Kennedy and Brownback. The Administration’s plan includes a strong Commissioner, clear lines of authority, and separation (with coordination) of the agency’s 

enforcement and adjudications functions. 

The Border Security Agency Proposal: 

Homeland Security Chief Tom Ridge reportedly has proposed a plan to consolidate 

some of the functions of the INS, including enforcement, inspections and the Border 

Patrol, with those of the U.S. Customs Service. Other reports indicate that the 

Coast Guard and some Department of Agriculture programs would be included in 

this consolidated agency. Some Members of Congress have introduced measures that 

would create such an agency. 

While enhanced coordination of enforcement functions (and border-related functions, specifically) is vitally important, any inter- and intra-agency coordination 

would be harmed by any proposal that splits off INS inspections and other aspects 

of INS enforcement from the entity responsible for overseeing our nation’s immigration system. Such splitting off runs counter to an effective reorganization of our immigration functions, and would threaten the necessary balance between enforcement 

and adjudications. It is essential to have one person in charge of all immigration 

functions to ensure the consistency of legal opinions, interpretation, and implementation. A border security function that subsumes the enforcement aspect of immigration but which would be separated from adjudications would lead to ineffective enforcement and adjudications. 

Rather than moving boxes around an organizational chart, some form of unified 

port management may offer an effective solution, and merits further investigation. 

But unified port management does not require the reinvention of the proverbial 

wheel by forming a new single federal agency. Instead, it would involve individual 

agencies reporting to a single port director at the ground level for major port operVerDate Mar 21 2002 15:28 Apr 02, 2003 Jkt 086041 PO 00000 Frm 00031 Fmt 6633 Sfmt 6621 C:\HEARINGS\86041.TXT SJUD4 PsN: CMORC
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ation decisions. Efficiencies could be achieved through community and agency involvement to create a port authority reporting to a governing body comprised of 

agency and Administration members. Such a body would clearly and decisively react 

to port of entry security, staffing, infrastructure, and policy needs. All of these needs 

must be coordinated to achieve the goal of enhanced border, and hence, national, 

security. 

The Sensenbrenner/Gekas Bill (H.R. 3231): 

Insisting that the Bush Administration’s proposed reorganization of the INS could 

not be effective, Representatives James Sensenbrenner (R–WI) and George Gekas 

(R–PA) introduced H.R. 3231. The version of H.R. 3231 passed by the House on 

April 25 does include some positive improvements on the legislation as originally 

introduced. We commend Representatives Sensenbrenner and John Conyers (D–MI) 

for their hard work to reform a deeply troubled agency. 

H.R. 3231 would abolish the INS and create an Office of Associate Attorney General for Immigration Affairs (AAG). It also would create two Bureaus within the Department of Justice: the Bureau of Citizenship and Immigration Services and the 

Bureau of Immigration Enforcement. While the relationship between the AAG and 

the two bureaus is unclear, it appears that the AAG would have insufficient authority, especially when compared to the clout that the bill would give to the Directors 

of the two Bureaus. The Directors of the two bureaus would be charged with establishing immigration policy. In addition, while the bill would separate the agency’s 

competing functions, it provides little, if any, coordination between the two. 

The Bush Administration, while issuing a statement urging House passage of 

H.R. 3231, noted its concern with several provisions in the bill, including the weakened authority of the new AAG in comparison to the authority of the existing INS 

commissioner. 

The Kennedy/Brownback Bill: 

This bipartisan measure, entitled the Immigration Reform, Accountability and Security Enhancement Act of 2002, would dismantle the INS and establish in its place 

the Immigration Affairs Agency (IAA) within the DOJ. A Director of Immigration 

Affairs who is tasked with full responsibility and authority to administer the agency 

would head the IAA. The bill also would establish a Bureau of Immigration Services 

and Adjudications and a Bureau of Enforcement and Border Affairs, each headed 

by a Deputy Director. The Kennedy/Brownback reorganization plan creates an immigration agency headed by a Director with clout, separates and coordinates the enforcement and adjudications functions, has clear lines of authority, and includes 

helpful funding provisions. As such it is the only legislative proposal that fulfills the 

criteria reviewed below. 

In summary, both the Bush plan and the Kennedy/Brownback bill would place 

someone in charge with clout and would separate, but coordinate, the agency’s two 

functions. H.R. 3231 does not create a strong central authority. Nor does it provide 

for coordination between the two functions. The Ridge plan, by consolidating INS 

enforcement and border functions with functions now housed in other agencies, 

would separate these functions from adjudications, making a consistent interpretation of the law and any coordination between the two extremely problematic. The 

Ridge plan also appears to contradict the INS reorganization plan that the Administration has advanced and has begun to implement. That plan, in contrast to the 

Ridge border security plan, is based on a strong central authority with direct lines 

of command over the enforcement and adjudications functions. 

INS REORGANIZATION WOULD AFFECT REAL PEOPLE

Any reconfiguration of our immigration function will work only if it successfully 

serves real people. Here are some examples of why it is vital to have a single person 

in charge and close coordination between adjudications and enforcement:

• The Border Patrol picks up a suspected illegal alien. He claims to be a 

lawful permanent resident, but does not have his green card in his possession. The Border Patrol needs to check his status with Adjudications before 

determining whether to release or detain him. 

• Immigration Adjudications receives a petition for H–1B status and suspects fraud. The INS Service Center wants to check on the employer’s 

record with INS and determine whether it has been found to hire undocumented workers in the past. The Adjudications division would need to access enforcement records to check on the employer’s work site investigations 

records. 

• An applicant for adjustment of status claims to have no periods of unlawful presence. The Immigration Adjudicator suspects otherwise based upon 

29

claimed dates of entry. Without easy access to entry/exit records from Inspections, the adjudicator cannot confirm her suspicions. 

• There is a discrepancy regarding whether the physical presence requirement in an application for Temporary Protected Status (TPS) has been met. 

INS needs to examine entry databases. Without easy access to those inspections records, the application cannot be properly or efficiently adjudicated. 

• An individual applies for a green card after marrying a U.S. citizen. She 

arrived legally, but overstayed her tourist visa. INS adjudications needs to 

check with the enforcement branch to make sure there are no issues precluding her from obtaining a green card. 

• A Canadian computer systems analyst applies for a TN visa at the U.S.–

Canada border. He has a minor conviction from 20 years ago for possessing 

a small amount of marijuana. He needs a waiver under INA § 212(d)(3) to 

be able to enter the United States. Under any reorganization, the service 

and enforcement branches need to coordinate efforts to allow this person 

entry.

These examples underscore the need for restructuring to be based on the principles discussed below. 

PRINCIPLES THAT SHOULD GUIDE INS RESTRUCTURING

AILA believes that any successful reorganization of the INS must be based on the 

following four criteria:

• Appoint a high level person with clout to be in charge of both the adjudications and enforcement functions. 

• Coordinate the separated enforcement and adjudications functions. 

• Provide adequate resources. 

• Ensure that a reorganized immigration function contributes to our national security.

1. Appoint a high level person with clout to be in charge of both the adjudications 

and enforcement functions. This person must integrate policy making with policy 

implementation and lead and coordinate the separate service and enforcement 

functions. Accountability and leadership must come from the top. 

A successful reorganization of our immigration functions hinges on the appointment of one full-time, high-level person with line authority. Such an office would 

improve accountability, especially critical after the September 11 terrorist attacks, 

by fully integrating policy making with policy implementation, ensuring direct access to high-level officials within the executive branch, attracting top managerial 

talent, having authority both horizontally and vertically, and leading the efforts of 

the two bureaus. Especially after September 11, it is vitally important that one person at the top articulates a clear, coherent, and unified immigration policy within 

the government, to Congress, and to the world. 

Given this country’s urgent need to maintain and upgrade its security, it is now 

more pressing than ever to place one person in charge who is accountable so that 

our laws are implemented quickly and fairly, rather than developing two rival bureaucracies that will create balkanized immigration policies. Given this need for accountability and coordination, AILA also would support placing the inspections function in the office of the person in charge. Given that enforcement and adjudications 

come together in the inspections process, it is important that the person in charge 

oversees the exercise of this procedure and that inspectors receive training in both 

adjudications standards and enforcement procedures. In contrast, the Bush Administration plan and H.R. 3231 both would place inspections in the Bureau of Enforcement. 

The need for someone in charge of national policy with direct authority over the 

two immigration functions is evident in other areas as well. For instance, immigration enforcement officers interdicting or inspecting asylum seekers will likely have 

a different interpretation than would immigration service personnel as to whether 

the asylum seeker is eligible for protection under U.S. laws and treaty obligations. 

One central authority would help ensure consistent interpretations of the law. 

2. Coordinate the separated enforcement and adjudications functions. 

A consensus has been reached that separating the enforcement and adjudications 

functions will lead to more clarity of mission and greater accountability, which, in 

turn will lead to more efficient adjudications and more accountable, consistent, and 

professional enforcement. The Kennedy/Brownback bill, H.R. 3231, the Bush Administration’s plan, and the Ridge border security plan all are based on such a separation. 

30

However, coordination of the two functions is as important as separation and is 

key to a successful reorganization because enforcement and adjudications are two 

sides of the same coin. Almost every immigration-related action involves both enforcement and adjudicatory components. The INS’s recent blunder in notifying a 

Florida flight school regarding the agency’s approval of student visa applications for 

two of the now-deceased September 11 terrorists reinforces the need for these two 

functions to be even more closely coordinated than they are today. Only through 

such coordination will we achieve consistent interpretation and implementation of 

the law, clarity of mission and, in turn, more efficient adjudications and more effective, accountable, consistent, and professional enforcement. Such coordination cannot be achieved merely by creating a shared database. Inconsistent policies and interpretations of the law, the lack of a common culture, and—most importantly—the 

absence of someone in charge who can resolve differences, can turn routine referrals 

into Kafkaesque nightmares. 

The Kennedy/Brownback bill and the Bush Administration plan provide for this 

coordination. H.R. 3231 and the Ridge proposal do not. While H.R. 3231 separates 

enforcement and adjudications by creating two separate Bureaus within the Department of Justice, there is little coordination between the two, save a General Counsel 

placed in a weak Office of the Associate Attorney General. This coordination is 

largely lacking because there is no high level official given sufficient authority over 

the two bureaus who would be able to integrate shared information systems, policies, and administrative infrastructure, including personnel and training. The two 

bureaus likely would end up working at cross-purposes, with the leaders from each 

sending conflicting messages on policy matters pertaining to complex laws. 

The absence of coordination can lead to inconsistent opinions and policies, and result in each bureau implementing laws differently, thereby creating ongoing difficulties. The absence of coordination will exacerbate these concerns even more and raise 

additional questions. For example, since border inspections combine both adjudications and enforcement functions, how will the many different activities that take 

place at our ports of entry be handled? These activities can include officials adjudicating asylum eligibility, granting final admission as a legal permanent resident 

based on an immigrant visa, issuing entry documentation, interdicting those ineligible to enter the United States, and assisting in the interdiction of those engaged 

in trafficking activities. Given the structure of H.R. 3231, these functions would not 

be organized, integrated or coordinated. 

Furthermore, how will Congressional staff be able to efficiently handle requests 

for assistance on immigration matters? Without adequate coordination, staff will be 

forced to deal with two separate bureaus that implement different policies and practices, making their jobs much more difficult and time-consuming. 

3. Provide adequate resources for the adjudications and enforcement functions and 

ensure that direct congressional appropriations are available to supplement user 

fees. 

As the reorganization debate continues, we urge Congress to review how immigration functions have been and should be funded. Currently, enforcement functions 

are supported by congressional appropriations, while adjudications are largely funded by user fees. Since adjudications are as much in the national interest as enforcement, adjudications should receive on an ongoing basis direct congressional appropriations to supplement user fees. AILA supported the establishment of the Examination Fee Account when it was first created. However, given the history and status of that account, we have revised our views and urge Congress to supplement 

user fees with congressional appropriations to ensure that an appropriate level of 

service is achieved. 

In addition, adjudication fees paid by applicants for immigration benefits should 

be used solely to adjudicate those applications. In practice, a large share of the user 

fees has been diverted to support other functions. Immigrants, particularly when 

they already are experiencing lengthy delays and unacceptable levels of service, 

should not be forced to pay for programs unrelated to the processing of their applications. The responsibility for programs that do not generate fees should be shared 

among all taxpayers. 

Both the Kennedy/Brownback bill and H.R. 3231 include important first steps in 

this area. But we believe that Congress should go beyond the measures included in 

both bills and dramatically increase its appropriations role. 

4. Ensure that a reorganized immigration function contributes to our national security. 

Our immigration function, whatever shape it takes, has an important role to play 

in helping our nation enhance its security. To aid in that effort, a restructured imVerDate Mar 21 2002 15:28 Apr 02, 2003 Jkt 086041 PO 00000 Frm 00034 Fmt 6633 Sfmt 6621 C:\HEARINGS\86041.TXT SJUD4 PsN: CMORC
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migration agency needs a strong leader at the top who can quickly undertake decisive actions, especially in periods of emergency. To be effective, particularly in times 

of crisis, a reorganized agency also must have accountability. Creating an agency 

with a weak position at the top, and empowering the heads of two conflicting bureaucracies, as envisioned in H.R. 3231, is a recipe for conflict and dysfunction, especially in times such as these when the need for quick and effective decision-making is essential to protecting our national interests. 

Any restructuring of our immigration function to enhance our security must reflect the importance of both adjudications and enforcement and include adequate 

funding for both. While the importance of enforcement is obvious in this regard, the 

security-related aspects of adjudications have been downplayed during the restructuring debate. As important as it is to enforce our laws as a means to enhance our 

authority, it is equally crucial that we distinguish those who mean to do us harm 

from those who seek entrance into our country, much as our ancestors did, to help 

us build this nation. Provisions in the Border Security and Visa Entry Reform bill 

reflect the importance of both functions and the need to pay for initiatives in both 

areas. Any INS reorganization bill should do the same. 

Given our nation’s enhanced security needs after the September terrorist attacks, 

it is important that Congress and the Administration support direct federal appropriations for the kinds of technological, staffing, and infrastructure needs that both 

the INS (in its enforcement and adjudications capacities) and the Department of 

State will require. The security agendas of these two agencies cannot be supported 

through user fees alone. The enhanced capacity to meet our security needs is an important national function best supported through the federal government and will 

require such support on an ongoing basis. 

RESTRUCTURING MUST BE BASED ON RELIABLE INFORMATION

The information Congress needs to help determine the best reorganization plan 

must be reliable. AILA urges Congress to seek this information from many sources, 

including INS staff at headquarters and in the field and those who use the agency’s 

services. AILA member attorneys have much experience dealing with the INS at 

headquarters and in the field (at service centers, district offices, and ports-of-entry, 

for example). We stand ready to relay to Congress information concerning the agency’s failures and successes based upon the hundreds of thousands of encounters our 

members have had with the INS over the years. 

Such anecdotal information serves a useful function. However, it is precisely that: 

opinions of AILA members based upon their experiences. Rigorous study would be 

needed to determine if these opinions are fact. The General Accounting Office (GAO) 

did not exhibit such caution when it recently issued a report entitled ‘‘Immigration 

Benefit Fraud: Focused Approach Is Needed to Address Problems.’’ The GAO report 

was supposed to review information on the nature and extent of immigration benefit 

fraud at the INS. 

Fraud should not exist within the INS or any agency. Immigration benefit fraud 

threatens the integrity of the legal immigration system. It cannot and should not 

be tolerated. Like the GAO, many, with good reason, have found fault with INS 

management. Certainly, there is much room for improvement. We all want an agency that works, and works well. However, any investigation of fraud must be conducted fairly and use methods that are above question. Based on these criteria, the 

GAO has failed. Its report presents opinions as facts, makes no attempt to corroborate allegations raised, and portrays the INS’s successful efforts at fraud detection 

as examples of a broken system. In fact, the report really is two reports: one focusing on alleged fraud based on uncorroborated opinions, and the other detailing procedural changes from which any agency would benefit. 

What did we learn from this report? 

The report repeatedly cites opinion as fact, appears to fault the INS when the agency successfully detects fraud, and suggests that simply because the agency has found 

fraud, such fraud is pervasive. Phrases such as ‘‘one official told us,’’ ‘‘views of INS 

officials,’’ ‘‘district officials told us’’ and similar attributions are repeated throughout 

the report, with anecdotal data treated not only as fact, but as pervasive fact. In 

addition, when citing to various instances of fraud throughout the report, the GAO, 

instead of crediting the INS for having mechanisms in place that have been successful in uncovering such fraud, criticizes the agency for the existence of the problem. 

The GAO could have concluded instead that current INS procedures to detect fraud 

are working. At the very least, these procedures are not as ineffective as the GAO 

alleges them to be. Finally, the report’s tone and conclusions do not reflect what the 

GAO itself admits, that the ‘‘estimates provided by INS supervisors and managers 

were not based on scientific studies.’’

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The GAO has raised serious charges. Such charges need to be based on fact, not 

allegations or conjecture. There is room for improvement in any agency, especially 

the INS, but any successful reform must be guided by accurate data. 

The GAO report reinforces the need for someone in charge and a reorganized agency that coordinates the two functions of enforcement and adjudications. While not 

focusing extensively on INS reorganization, the GAO emphasizes the importance of 

coordination in a reorganized agency that separates the enforcement from the adjudications function: ‘‘Organizational crosswalks would need to be devised to assure 

that the two primary functions were still being effectively coordinated and balanced, 

that is that the enforcement concerns were considered in performing service functions and vice versa. Our intention is that these primary functions be coordinated 

and balanced, regardless of how the agency is structured.’’ (GAO report at pg. 34). 

The GAO’s recommendations also support the need for one person at the top who 

has the authority to coordinate all activities and goals. Such coordination, achieved 

both through the person in charge and through the structure of the reorganized 

agency, is critical throughout the INS. 

Importance of Adequate Funding for Adjudications: The GAO report was silent on 

one of the most important issues needing to be addressed: the importance of adequate funding for the INS in general, and adjudications in particular. While the 

GAO criticizes the agency for doing too little to combat immigration benefit fraud, 

the Service has not received adequate funding to undertake this task in a comprehensive and effective manner. Especially in this time of enhanced security, the 

INS needs the funding and technology that are critical for the agency to do a good 

job. The report also raises concerns about the INS’s ability to balance its dual responsibilities of application processing and fraud detection, and states that ‘‘unless 

INS can devote additional resources to processing applications, its efforts to expedite 

application processing will mean that the quality of adjudication will most likely be 

sacrificed.’’ (GAO report at pg. 27). Again, the most effective response to this concern is adequately funding the agency so that the competing goals of quality and 

timeliness can be achieved. Such funding must come from direct congressional appropriations that would supplement user fees. 

Importance of Enterprise Architecture and Information Technology: The GAO report recognizes the importance of agency-wide case tracking, information technology, 

and management capability to help ensure the effective use of resources, and that 

necessary coordination occurs and accurate immigration benefit decisions are made 

in a timely manner. The INS, recognizing that the agency could achieve these goals 

through enterprise architecture and information sharing, was moving in those directions even before September 11. Since that date, the Service has accelerated work 

in those areas, which will help ensure the quality of adjudications as well as enhance our security efforts. Once again, adequate funding will be critical to the ability of the Service to develop and implement the needed improvements. 

CONCLUSION

INS restructuring is not a dry exercise involving reform of a government bureaucracy. Decisions in this area will impact directly on our national security, as well as 

the lives of hundreds of thousands of American citizens, businesses, and legal immigrants who daily interact with this system. Making the wrong decisions can weaken 

our security through less effective and unfair enforcement, and result in unconscionable delays in citizenship processing, reuniting families, and helping American business to acquire the workers they need. 

Mr. Chairman, thank you very much for this opportunity to share my thoughts 

and perspectives with the committee. AILA remains available to discuss these matters with you at any future time, and is dedicated to working with Congress and 

the Administration to ensure that reorganization succeeds. Thank you.

Senator KENNEDY. Thank you very much. You are asking a lot 

to get that mission statement out which we can all agree on and 

get through and it is a real challenge. 

I am going to just come back to the coordination of the border 

security agencies because this is one of the major kinds of issues. 

You give the example of the individual who is caught at the border 

and whether they are a permanent resident or a trespasser into 

this country, and we ought to be able to make that determination. 

Why wouldn’t someone be able to say, well, if you have interoperable commuters on this, why wouldn’t the enforcement agency be 

33

able to make that determination? Why wouldn’t they be able to 

take the name of that person and plug it into their computers and 

find out what the status of this individual is? Wouldn’t we get 

much greater efficiency if we brought all of these agencies together 

rather than having them all out there working in different ways at 

the border? 

We are going to have this and we are going to have to deal with 

it, and both of you are important authorities on this and I would 

like to hear you. 

Mr. YALE-LOEHR. If I could answer first, I think that is a very 

good question, but I think it is more than just records-sharing that 

is important here. It is also policymaking and implementation. 

For example, if you had one agency that was in charge of the border and another agency that was in charge of immigration interior 

inspections and adjudications, you could have a problem. For example, an asylum seeker who ended up coming at the border and 

wanted to apply for asylum at the border would be dealing with 

this border agency and they may have their own policy as to 

whether a particular person would qualify for asylum or not. 

The exact same individual, if they were in the United States and 

overstayed their visa and applied for asylum, might have a different kind of outcome because of the policy that the interior agencies have. So that is why coordination is important, and I don’t 

think any border agency that deals with part but not all of immigration is going to be ultimately effectively. 

Senator KENNEDY. Mr. Virtue? 

Mr. VIRTUE. Another example would be the fact that the inspectors at the port of entry who would be considered enforcement officers also adjudicate waivers on a daily basis. Many of the grounds 

of inadmissibility are minor ones and people are eligible for waivers, and those are the same exact adjudications being performed in 

our regional service centers and right now in our district offices for 

grounds of inadmissibility. The coordination and consistent application of those policies is important and really requires coordination. 

Senator KENNEDY. Mr. Virtue, one of the differences between the 

House and Senate bills is our treatment of the Office of General 

Counsel and legal advisers in each of the bureaus. Both bills have 

an Office of General Counsel, but the House bill also has legal advisers in the bureaus. 

How important is it for the general counsel to have the authority 

to issue consistent legal opinions for both the adjudication and enforcement functions of the agency, and that these opinions are reflected in the policies and practices of the agency? 

Mr. VIRTUE. I think it is going to be critically important because, 

as I mentioned, there are people proposed to be in the enforcement 

bureau and people in the services bureau who are administering 

the same law, and many times making decisions based on the same 

policies. 

Interpretation of that policy has to be centralized in terms of the 

legal interpretation. We could have real problems if you had different legal interpretations on the enforcement side and the services side with respect to the same provision of law or the same constitutional issue, very difficult issues and ones that could lead to 

unnecessary hardship, first of all, but also potential litigation and 

34

a real waste of time for the agency. So I think it is critically important to have that general counsel. 

The general counsel also is responsible for supervising the attorneys who appear in immigration court. Again, in immigration court 

you are dealing with an enforcement issue, but many times you are 

also dealing with requests for relief, asylum, adjustment of status, 

cancellation of removal, and other benefits that are being adjudicated both in immigration court and elsewhere. So those issues 

also cry out for coordination. 

Senator KENNEDY. Also, you warn that detailed congressional direction on the structure of INS can reduce rather than enhance the 

agency’s ability to adapt to new challenges. What are some of the 

potential pitfalls that we should avoid? 

Mr. VIRTUE. One of the issues is simply that we just don’t know 

what future challenges there may be. Before September 11, I don’t 

think any of us could have imagined what we would have to deal 

with, so there are those problems. 

Also, I am not sure if it is necessarily pitfalls, but I think an important aspect of flexibility is to have the offices reflect the needs 

of the customers in a particular area, and that may be different for 

different geographic areas, different demographics. I can see in 

some places, for example, as I mentioned in the testimony, where 

you might want to have a small storefront office that is similar to 

a Social Security office, for example, that provides primarily information. 

In other locations, you may need full-services offices because the 

regional adjudication centers or remote adjudication centers can’t 

deal with some of the issues, the need for fingerprints or the need 

for positive identification. So the agency should have the flexibility 

to design those offices, hopefully with the customer’s input in mind. 

Mr. YALE-LOEHR. If I could add a historical precedent that you 

have all dealt with, and that is the legalization program of 1986, 

I am not sure that if we had the House bill enacted today that you 

would be able to do legalization without having to re-legislate the 

whole purpose of the agency. 

You had both enforcement and adjudication functions in legalization. The agency had to deal with over 3 million applications in a 

very short time frame. You don’t want a statute to say you have 

to do it a certain way, and have a new program like legalization 

come down the pike and say, no, it is not going to work. So I think 

that is why you have to have flexibility in whatever structure you 

set up. 

Senator KENNEDY. Senator Brownback? 

Senator BROWNBACK. Thank you, Mr. Chairman. 

Thank you for the grade on Senator Kennedy and my term 

paper. We appreciate that, to be able to get an A together. That 

was excellent staff work, too, I might point out. 

I noted at the outset that the lead case work that I get in Kansas 

in my offices—most people might think, well, okay, it is veterans’ 

benefits, Social Security, farm program payments, something like 

that, and it is immigration work, by some distance even, and a lot 

of it is poor communications, backlogged cases. Why is this taking 

place? 

35

Mr. Virtue, you used to be GC at the INS. Professor, you are the 

most well-written person in the field in the country. Why am I having that level of problems, structurally, from the INS? 

Mr. VIRTUE. Well, maybe I will take a shot at that one first. I 

think, first of all, the information about pending applications is not 

readily made available to the public. I don’t think that is a function 

of the agency not wanting to make that information available. It 

is simply that the systems aren’t there to provide that information. 

I depend in my practice a lot on the Web, on the Internet, and 

getting information about a whole host of Government agencies. 

The technology is certainly there for people to be able to go to a 

Web site and get information about the current status of their case, 

and that simply isn’t available right now outside of—well, it still 

isn’t even available in the naturalization area, but it can be. So I 

think that is probably the single most important reason that immigration case work leads the case work in your office, because of the 

lack of information. 

Senator BROWNBACK. Let me hone the question a little bit further. Is there something structurally within INS that we should be 

changing to deal with this backlog and poor communication problem that I have that my constituents are experiencing? 

Mr. YALE-LOEHR. I don’t think it is anything structural. I think 

it is a combination of factors that have grown over time. I remember 15 years ago I had an interview with a high-ranking INS official who said, you know, within the next 2 years we are going to 

jump from the 19th century to the 21st century. They had this 

great plan, but there was no one person at INS with authority to 

look at all of the information systems. 

There are like 14 or 15 different databases within the INS, and 

as those grow over time it gets harder and harder to put those systems together so that everybody is accessing a common database in 

a real-time format. So I don’t think there is anything structural 

about the problem. I think it is a combination of lack of resources, 

lack of attention in the early days to computerization, and growing 

mission creep of the agency. With new things put on it all the time, 

it makes it harder and harder for it to get out of the hole that it 

has been in for so long. 

Senator BROWNBACK. Are we going to want more centralized authority? You have both talked about a strong and elevated position 

within the INS. We have held some hearings here, and then also 

as I have traveled and visited with some people on immigration, 

they talk about different regional authority, decisions made in one 

place, one region, and differently in another region. 

Are we going to want to see that changed and addressed in this 

process? 

Mr. YALE-LOEHR. I think you do. I think immigration is a national function, and you want one person speaking with authority 

and you want people in all the different branch offices to understand that mission and to react the same way with the same interpretation. So I think any reorganization should centralize and 

strengthen the authority of the person at the top. 

Senator BROWNBACK. Do you think there is too much decentralization of that sort of policy-type decisionmaking presently 

within INS? 

36

Mr. YALE-LOEHR. Yes, I do. 

Senator BROWNBACK. Mr. Virtue? 

Mr. VIRTUE. I have to agree with that. If you look at the district 

directors, for example, at the field level, they have to prioritize the 

need for competing resources. So I think they have to do the best 

they can, but they are looking at their particular area and trying 

to prioritize their own resources between services and enforcement. 

Under this bill, you will have clear lines of authority and the person at the field level will be responsible for prioritizing the enforcement mission. At the same time, the person who is responsible for 

services will be focused on priorities within that service and you 

won’t have the same competition in 34 different offices, or more 

even. 

Senator BROWNBACK. I would like to invite both of you as you get 

more time to look at the bill, to think about it and to comment on 

it, to get back to us about what you think we ought to be doing, 

because it is a serious issue. I think it is an issue that we are going 

to be able to get up, I hope, on the floor here because there is a 

national emphasis to deal with it. We really would like the best 

minds we possibly can get and people with experience giving us 

good thoughts on the broad basis and on the narrow issues as well. 

Thanks for being here today. 

Senator KENNEDY. Senator Feinstein? 

Senator FEINSTEIN. Thanks very much, Senator Kennedy. 

I want to just share with you a couple of my observations. I have 

been on this committee now for almost 10 years. In all the hearings, I have never ever heard the words ‘‘national security’’ mentioned as any part of the mission of the INS, and yet now it clearly 

is part of the mission. So, in a way, the mission of the INS to some 

extent is changing. However, there have been signs all along for 

many years that things were awry. Statistics are 3 years behind. 

You mentioned, Mr. Virtue, that there are 850,000 people coming 

in under the quota system legally a year, but every year families 

are coming in of people that have come in in prior years. So the 

numbers essentially are substantially above 850,000, but we can’t 

get an up-to-date figure. 

On the student visa program, there have been warnings that the 

student visa program was in disarray for a decade as I look back. 

You have had people convicted for fraud, for falsifying applications. 

You have bogus schools set up. You have had teachers in colleges 

convicted because they have falsified applications and grades. You 

have had a person convicted because he ran a ring; for so many 

dollars from each individual, he could get 100 people in on student 

visas. 

To talk about tailoring the mission to meet the ability of the 

agency has been a kind of heresy because immigration policy has 

been driven by humanitarian and economic concerns. Maybe that 

is right. I am not challenging that, but in everything that we hear, 

all the lobbyists at least that I have heard, nobody has ever said 

constrain it, modify it, secure it. It has always been do more, do 

more, do more. So the system has no real advanced systems for 

control measures, for tracking measures, for real investigatory 

measures. 

37

We can enact this bill, which we very well may, and it won’t 

solve the problems that are out there, and I am very concerned by 

it because you have had the biggest tragedy, bigger than Pearl 

Harbor, that has happened to America and it all happened from 

people who had legal visas. Even after two of them were dead, and 

dead above the fold on the front page of the newspapers, they get 

extensions. That ought to be real documentation that we are really 

over-extended, even with 35,000 employees. 

How do you check out 500,000 students a year? How do you do 

it? It is impossible. Schools, of course, get premium tuition, so they 

all want them—a very difficult problem. 

You all in a way have a conflict because you represent people 

who come into the system, and I recognize that, but you also must 

see a system that is overloaded and severely at risk, if you add the 

words ‘‘national security’’ to our mission. 

I would like you to comment on that. 

Mr. VIRTUE. Well, that is absolutely right, and certainly none of 

our clients benefit from a system that is overloaded and has some 

of the problems that you point out. I think the reason why the bill 

that has been introduced here by the chairman and Senator 

Brownback is preferable to the House bill or any of the other proposals——

Senator FEINSTEIN. No, no, don’t mistake me. I am asking you 

to go beyond the bill. 

Mr. VIRTUE. Okay. 

Senator FEINSTEIN. I mean, you are for the bill, I am for the bill, 

we are all for the bill. I am asking you to use your expertise as 

people who deal in this arena as professionals all the time as to 

how do we handle the future once we add national security to immigration policy, as a part of bona fide immigration policy. 

Mr. VIRTUE. Well, on that point I think our ability to check people’s backgrounds and verify their identity is only going to be as 

good as the information that we have available from intelligence 

sources, foreign law enforcement agencies, and both the development of that information as well as a system for collecting, maintaining, and distributing that information to the decisionmakers. 

Senator FEINSTEIN. So you would put it on an interoperable database? 

Mr. VIRTUE. Absolutely, and the decisionmakers are at the State 

Department in terms of issuing visas and at the INS in terms of 

admitting people who appear at the ports of entry. That has to be 

a critical backdrop for any structure within the agency. So I think 

that is what we need. 

Senator FEINSTEIN. In other words, what you are saying is you 

really need top managers in both of those areas. One of them is to 

see that the databases function and the materials communicate 

from one department to another, which we know they do not now. 

That was part of the Border Security and Visa Reform Act to provide the money for that interoperable system, which we have done. 

Mr. VIRTUE. And somebody who can be responsible for that interagency coordination and take responsibility and accountability for 

it. 

Mr. YALE-LOEHR. I agree entirely with that, and I think part of 

it is we also as a Nation have to decide what we believe about imVerDate Mar 21 2002 15:28 Apr 02, 2003 Jkt 086041 PO 00000 Frm 00041 Fmt 6633 Sfmt 6602 C:\HEARINGS\86041.TXT SJUD4 PsN: CMORC
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migration. It is too important for us to sort of talk about it here 

and there or jump from one crisis to another. 

Speaking from a more academic perspective, I would say I would 

convene something again like the Hesburgh Commission and try to 

have leading people—academics, practitioners, members of Congress—say what does immigration mean to this society after September 11. If we could come up with a consensus that the American people would believe in, then I think we could move forward 

with any kind of system and say, okay, this is what we plan to do. 

I think that could go a long way to making sure that we are effective, whatever system we enact today. 

Senator FEINSTEIN. I think that is a good point because we are 

a Nation of newcomers. That is what we stand for, and I think we 

should continue to be, but I think there are limits on what we can 

do and how we can manage what is a new area of terrible vulnerability for the Nation. That is sort of up in the air. 

In any event, thank you, Mr. Chairman. 

Senator KENNEDY. Well, thank you. You know, looking back—

and I would be interested in whether I am right—until we started 

having the hearings on that 1965 Act, I think we were 10 or 20 

years without hearings. We can go back to the McCarran–Walter 

Act. I don’t think we had very much. 

This has been much better that this issue has been up front. I 

mean, I differ with the 1996 Act, but what we actually passed on 

the floor of the Senate was, I think, a credible bill. It passed 97 

to 3, and then we were excluded, at least our committee was, from 

any conference, and then it ended up being part of the budget and 

we were forced to vote for the budget and this bill. 

Quite frankly, immigration has not been a high priority of many 

Attorneys General, Democrats and Republicans. It has been a stepchild. They haven’t had the support, they haven’t had the technology. They have been a real punching back for members of Congress. There is enough blame to go around. 

We have got an interesting opportunity now and we have got to 

focus on it. Americans understand this, and I think the Congress 

understands it, and we want to try and get this as right as we can 

now. I welcome the comments of my colleagues who say that we 

are not going to be able to solve all the problems just with legislation, but I think if we build on our border security and try and get 

this straight and try and do what you have outlined and understand what our mission is with regard to it—and I think Senator 

Durbin mentioned the different swings and moods which you both 

have seen in the Congress over a long period of time; this issue 

goes back and forth with the sentiment of the American people—

then I think we can really make some sense of it. 

I want to thank both of you. It has been enormously helpful to 

me. We have been very lucky to have both of you, and I join my 

colleagues in saying that we are going to leave you an open invitation at any time as you see this whole process move along to give 

us your best judgment on these recommendations that come up. We 

are very, very grateful to both of you for your help and your comments here today. 

The committee stands adjourned. 

[Whereupon, at 3:56 p.m., the committee was adjourned.] 

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