United States Commission on Immigration Reform

Testimony of Barbara Jordan, Chair,
U.S. Commission on Immigration Reform
Before the U.S. Senate Committee on the Judiciary
Subcommittee on Immigration and Refugee Affairs
August 3, 1994


Mr. Chairman, members of the subcommittee, thank you for providing this opportunity to report on the work of the U.S. Commission on Immigration Reform.

The Commission was created to assess and make recommendations regarding the implementation and impact of U.S. immigration policy. Mandated in the Immigration Act of 1990 to submit an interim report in 1994 and a final report in 1997, the Commission has undertaken public hearings, fact-finding missions, and expert consultations to identify the major immigration-related issues facing the United States today. I am pleased to share our preliminary findings and recommendations with you today. Our report, which will be submitted on September 30, will provide fuller details on these recommendations and the reasons we are making them.

The process undertaken by the Commission has been a complex one. Distinguishing fact from fiction has been difficult, in some cases, because of what has become a highly emotional debate on immigration. We have heard contradictory testimony, shaky statistics, and a great deal of honest confusion regarding the impacts of immigration. Nevertheless, we have tried throughout to engage in what we believe is a systematic, nonpartisan effort to reach conclusions drawn from analysis of the best data available. The recommendations that I present today have been adopted unanimously.

Principles Underlying Work of the Commission

Certain basic principles underlie the Commission's work. We decry hostility and discrimination towards immigrants as antithetical to the traditions and interests of the country. At the same time, we disagree with those who would label efforts to control immigration as being inherently anti-immigrant. Rather, it is both a right and a responsibility of a democratic society to manage immigration so that it serves the national interest.

The Commission believes that legal immigration has been and can continue to be a strength of this country. Most legal immigrants are the spouses, children, parents, or siblings of a U.S. citizen or long-term permanent resident. A smaller number are sponsored by U.S. businesses that need their skills and talents. While there may be disagreements among us as to the total number of immigrants that the United States can absorb or the categories to whom the U.S. should give priority for admission, the Commission agrees that legal immigration presents many opportunities for this nation.

That is not to say that the Commission is unmindful of the problems that may also emanate from immigration. Too many have abused the very hospitality that we grant so freely. Unlawful immigration is unacceptable. Enforcement measures have not sufficiently stemmed these movements. Failure to develop more effective strategies to curb unlawful immigration has blurred distinctions between legal and illegal immigrants. Many communities legitimately fear that they have lost the ability to integrate the diverse range of individuals and families who enter heir communities. The Commission is particularly concerned about the impact of immigration on the most disadvantaged within our already resident society--inner city youth, racial and ethnic minorities, and recent immigrants who have not yet adjusted to life in the U.S.

For the Commission, the principal issue at present is how to manage immigration so it continues to be in the national interest. Managing immigration presents a number of challenges:

It will be impossible to reach answers to these questions unless our policies and their implementation are more credible. As far as immigration policy is concerned, credibility can be measured by a simple yardstick: people who should get in, get in; people who should not enter are kept out; and people who are deportable should be required to leave.

The Commission is convinced that immigration can be managed more effectively and in a manner that is consistent with our traditions, civil rights, and civil liberties. As a nation of immigrants committed to the rule of law,

this country must set limits on who can enter and back up these limits with effective enforcement of our immigration law.

Recommendations

The problem of unlawful immigration will not be solved by quick fixes. There are no panaceas. Nor will this problem be solved cheaply. If the nation is serious about controlling illegal immigration, it must commit substantially more resources than are currently available to accomplishing the measures required. The U.S. must also more effectively target existing resources on strategies that are most likely to prevent unlawful immigration from occurring. In sum, curbing unlawful immigration requires:

No one approach will be sufficient to address unlawful migration.

Let me touch on the highlights of this comprehensive strategy that the Commission will be recommending in its September report.

I. Preventing Unlawful Entry and Facilitating Legal Entry Across U.S. Borders

The Commission believes that significant progress has been made during the past year in identifying and remedying some of the weaknesses in U.S. border management. Nevertheless, we believe that far more can and should be done to meet what we consider to be the twin goals of border management: preventing illegal entries while facilitating legal ones.

Land Borders

The Commission supports enforcement strategies aimed at prevention of illegal entry at the border rather than apprehension following illegal entry.

The Commission was favorably impressed with the pilot program in El Paso, Operation Hold the Line. Prevention holds many advantages: it is more cost-effective than apprehension and removal, it eliminates the cycle of voluntary return and reentry that has characterized unlawful border crossings, and it reduces potentially violent confrontations between Border Patrol officers and those believed to be seeking illegal entry.

Prevention strategies require a combination of additional personnel, improved technology and communications, data systems that permit quick identification of repeat offenders, additional equipment including vehicles, and a political commitment to this approach. Prevention also requires a capacity to anticipate changes in smuggling patterns. The Commission recommends development of contingency plans to handle smuggling at new locations along the border as well as increased sea smuggling that may arise as land border controls are improved. The Commission also recommends formation of a mobile, rapid response team that can be deployed when new avenues of illegal entry are identified. The Commission supports use of unscalable physical barriers only as a last resort in border control, if they are needed to reduce violence at the border.

The Commission supports efforts to increase training for Border Patrol officers, improve procedures for adjudicating complaints of Border Patrol abuses, and provide redress or relief to those subjected to improper actions. And, recognizing the fundamental shift in Border Patrol policy that a prevention approach requires, the Commission recommends systematic evaluation of the effectiveness of the new border strategies adopted by INS.

The Commission recommends additional resources for inspections at land border ports of entry in order to facilitate legal entry.

Legal entry should be facilitated in order for the country to benefit from trade and tourism. The Commission also believes that an intregal part of controlling illegal entry is facilitating legal entries. When Operation Hold the Line was instituted, it became apparent that a portion of those crossing the river illegally had or were eligible for legitimate Border Crossing Cards [BCCs] but found it was slower and more difficult to cross through the port of entry. In particular, high priority should be given to easing traffic through inspections posts and expediting issuance of BCCs. The Commission is giving consideration to a user fee to be imposed on crossers of the U.S. border as a possible way to provide additional funds to facilitate land border management. Consideration also is being given to a fee for issuance of the BCC, now precluded by U.S.-Mexico treaty. Also, further steps need to be taken better to ensure that the BCC is not misused by legal crossers who are engaged in unauthorized employment. The Commission's recommendations regarding employer sanctions should help in this regard.

The Commission supports increased coordination between the governments of the U.S. and Mexico on border issues.

The Commission views favorably the discussions underway between the U.S. and Mexican federal governments and border state and local governments. These discussions provide forums to promote greater cooperation between the two governments in solving problems of such mutual concern as border violence, violations of Mexican exit laws and U.S. entry laws, movements of third-country nationals through Mexico to the United States, smuggling of people and goods, and similar issues.

Airports

As with land borders, the Commission supports a combined facilitation and enforcement strategy that would prevent the entry of unauthorized aliens while facilitating legal admissions at U.S. airports.

The Commission supports the use of new technologies to expedite the inspections process and improve law enforcement. We also commend and urge continuance of the government-airline industry discussions and recommendations for preflight inspections and more efficient processing of travelers with Machine Readable Documents. The Commission supports efforts to devise programs that enhance the capacity of airline carriers to identify and refuse travel to aliens seeking to enter the U.S. on fraudulent documents. We encourage the INS and the airlines to continue the Carrier Consultant Program and other coordinated efforts to maintain complete, accurate and reliable Advance Passenger Information System [APIS] data and improved lookout data systems.

The Commission heard testimony from the airline industry on what they consider to be undue fines and penalties imposed for transport of unauthorized aliens. The Commission recommends development of a system for mitigation of penalties or fines for those carriers that cooperate with the INS and show actual reductions in the number of unauthorized aliens they carry. The Commission further believes that carriers should not be responsible for the actual physical custody of inadmissible air passengers.

Coordination of Border Management

The Commission urges careful monitoring of coordination among agencies with responsibility for

border management.

In a June 1993 report, GAO outlined efficiency and other management problems with the INS-Customs dual inspection structure on primary inspection at land border stations. Among them: poor coordination; lack of updated cross-designation training; lack of joint performance studies; no coordinated approach for addressing staffing imbalances and traffic backups; a substantial interagency rivalry; and weakened operational accountability due to the dual structure. Even though the report focused on land border ports-of-entry, the same problems occur at air ports-of-entry as well.

More recently, the National Performance Review noted, in reference to previously voiced suggestions, that a reorganization of the agencies at this time was too extreme and that the agencies should continue to work in the existing structure, with the assistance of present interagency work groups. In two years, the existing structure is to be reevaluated. The Commission plans to monitor whether the coordination mechanisms recommended

by the NPR help address the recurrent management problems experienced in land and airport immigration inspections and border control. If they do not make the needed improvements, the Commission will recommend further actions.

Antismuggling Efforts

The Commission believes an effective prevention strategy requires enhanced capacities to combat organized smuggling for commercial gain.

The Clinton Administration introduced legislation in July 1993 that enhances penalties for smuggling or harboring aliens for commercial advantage or financial gain and includes organized smuggling under the provisions of RICO. The legislation also provides expanded authority for seizure and forfeiture of property related to smuggling activities and enhanced authority for wiretaps. The Commission supports the basic approach taken in this legislation, and we recommend, as well, enhancement of intelligence gathering and diplomatic pressures to prevent smuggling rings from operating.

II. Deterring the Employment of Unauthorized Aliens

Employment continues to be the principal magnet attracting illegal aliens to this country. As long as U.S. businesses benefit from the hiring of unauthorized workers, control of unlawful immigration will be impossible. The Commission believes that both employer sanctions and enhanced labor standards enforcement are essential components of a strategy to reduce the job magnet.

Verification of Employment Authorization

At the heart of many of the problems in current application of employer sanctions is the verification process used to determine work authorization. Widespread counterfeiting of documents that can be used for verification of identity and employment authorization has been reported since IRCA's implementation. It is also relatively easy to obtain genuine documents, such as birth certificates or drivers licenses, by fraudulent means. Moreover, confusion about the verification procedures and wariness about the validity of the documents has led to great potential for discrimination against foreign-looking and -sounding citizens and legal immigrants.

The Commission recommends development and implementation of a simpler, more fraud-resistant system for verifying authorization to work.

In examining the options for improving verification, the Commission believes that the most promising option for more secure, nondiscriminatory verification is a computerized registry, using data provided by the Social Security Administration and the Immigration and Naturalization Service.

The key to this process is the social security number. All workers must already provide a social security number upon taking employment. The verification process that the Commission is looking at adds a step to this existing requirement: checking that the social security number is valid and has been issued to someone authorized to work in the United States.

This verification system will reduce the time, resources, and paperwork spent by employers in abiding by the requirements of immigration law. It also should reduce any potential for discrimination. Employers would no longer have any reason to ask if a worker is a citizen or an immigrant--the only relevant question is: "What is your social security number?"

The Commission further recommends that the President immediately initiate a program to implement this new verification process in the five states with the highest levels of immigration. The President already has the authority to do this in the Immigration and Nationality Act. The initiative should incorporate a number of features.

First, employers will need a way to determine that the individual about to be hired is actually the person with that social security number. We have received conflicting testimony about the best way to check the applicant's identity. We have heard proposals for a more secure social security card, counterfeit-resistant drivers license, and telephone verification system. The pilot program presents an opportunity to determine what is the most cost-effective, fraud-resistant and nondiscriminatory method.

Second, the pilot and any resulting legislation to establish the system on a permanent basis must provide protection against use of the verification process for purposes other than those specified in law. The Commission shares the civil liberties concerns of many in this country that the process for verifying employment authorization not become the basis for a national identity system. We believe the same system could be used, without damage to civil liberties, for verifying eligibility to receive public benefits. However, no one should be required to carry a card, should one be used, or present it for routine identification purposes. There must also be significant penalties for inappropriate demands for the identification.

Third, the verification system should protect the privacy of the information included in the registry. The Commission is aware of the proliferation of databases and of reported abuses of privacy by both government and private agencies. The verification process should contain explicit provisions for protecting privacy and the computer system should incorporate appropriate safeguards.

A final word on the verification process--to be effective, the computerized registry will draw on data from the INS and the Social Security Administration. A prime prerequisite of this system is the integrity of those data systems. Both agencies will need to improve their own records, speed up the entry of new data into their own systems and transfer of the necessary information to the jointly maintained registry, and ensure that the information remains accurate and accessible. INS has already requested funding to undertake these improvements in its recordkeeping. If Congress is serious about curbing unlawful immigration, it is essential that the funds be provided to carry out this initiative. The Commission is working with SSA and INS to get cost estimates for instituting the proposed registry and will report its findings in September.

Antidiscrimination Efforts

The Commission believes that adopting a more secure, simpler verification process for determining work authorization--and, in particular, one where employers will no longer have to make any determination as to immigration status--is the best defense against discrimination.

The current verification process creates discriminatory behavior among employers even in cases where

no discrimination is intended or in which there is an explicit effort to avoid illegal conduct. In particular, employers ask for different or additional documentation from those who appear to be foreign-looking or

-sounding. The abuse of documentation requirements is harmful in and of itself and also masks more egregious discriminatory actions.

The Commission encourages the Office of Special Counsel for Immigration Related Unfair Employment Practices to undertake targeted investigations to document discriminatory actions and provide relief for the citizens and legal immigrants who find themselves victims of discrimination based on national origins or citizenship status. We believe there is a public responsibility to provide effective redress for those who experience discrimination resulting from immigration law. During the transition period to a new verification system, in particular, OSC should be proactive in identifying discriminatory practices, finding ways to prevent their occurrences to the extent possible and seeking penalties against those employers who do discriminate. Further, the Commission recommends that additional studies be undertaken to determine the effectiveness of the new verification process in reducing discriminatory behavior.

Enforcement of Employer Sanctions and Labor Standards

The Commission believes that reduction in illegal immigration requires vigorous and complementary enforcement of employer sanctions and labor standards.

Neither employer sanctions nor labor standards enforcement has received sufficient priority. Both have suffered loss of resources during the past few years. Even within existing budget, however, a better targeting of resources could improve enforcement.

The Commission recommends that INS target its employer sanctions resources on the investigation and prosecution of likely violators of the provisions against knowing hire of illegal aliens and seek the full use of current penalties against them. When the new verification process takes hold, INS also should eliminate investigation of paperwork violations in order to concentrate more effectively on businesses that knowingly hire unauthorized aliens or fail to verify work authorization.

The Commission supports an increase in labor standards enforcement efforts in industries with large numbers of illegal aliens. Deterring unlawful immigration is a key ingredient in protecting U.S. workers. The presence of large numbers of unauthorized aliens in certain industries renders enforcement of labor standards, such as wage and hour and child labor provisions, all the more difficult because unauthorized workers are afraid to demand better working conditions or report infractions and businesses can bypass the hiring of workers who would be more cognizant of their rights.

A Memorandum of Understanding was signed last September between the Labor Department and the INS setting out a division of responsibility for investigation of employer sanctions violations. The Commission urges the Attorney General and the Secretary of Labor to review the current division of responsibilities between the Justice and Labor Departments in the enforcement of employer sanctions and labor standards and make needed changes if the new MOU does not provide the coordination needed.

The Commission also supports establishment of national and local taskforces to promote greater coordination in enforcement of labor standards, employer sanctions, and antidiscrimination provisions.

The Commission further recommends that educational efforts by the Immigration and Naturalization Service, the Office of Special Counsel, and the Department of Labor regarding employer sanctions, antidiscrimination provisions, and labor standards be coordinated and continuing, sending a single message about the rights and responsibilities of workers and employers.

III. Making Benefits Policy Consistent with the Objectives of Immigration Policy

Eligibility for Benefits

Immigrant eligibility for public benefits has become a major focus of debate in the United States. The Commission believes that decisions about eligibility should support the objectives of our immigration policy: to deter unlawful immigration and to support lawful immigration and eventual citizenship. Using these objectives as a measure of benefit policy, we have come to the following conclusions:

Illegal aliens should not be eligible for any services or assistance except those made available on an emergency basis or for similar compelling reasons.

Benefits policies should send the same message as immigration policies. Aliens should not have entered the U.S. unlawfully and, if they did, should not receive public-funded aid except in very unusual circumstances: where there is emergent need for specific assistance; where there is a public health, safety or welfare interest (such as immunizations, child nutrition programs and school lunch programs); and where their eligibility is constitutionally protected. The verification system recommended by the Commission should be used to determine eligibility for public benefits as well as work authorization.

Legal permanent residents should continue to be eligible for needs-tested assistance programs.

The U.S. admits legal immigrants with the expectation that they will reside permanently in the United States as productive residents. U.S. immigration law bars the entry of those who are likely to be a public charge. It also contains provisions for the deportation of individuals who become public charges within five years unless they require aid for reasons that developed after entry, such as an unexpected illness or injuries sustained due to a serious accident. The Commission believes that these provisions should be made more effective. At the same time, we also recognize that circumstances may arise after entry which create a pressing need for public help. The Commission is not prepared to lift the safety net out from under individuals who, we hope, will or have become integral parts of our civic culture. We recommend against any broad, categorical denial of such protection to legal immigrants on the basis of their alienage.

However, the Commission strongly endorses initiatives to ensure that sponsors are financially responsible for the immigrants they bring to this country. In particular, the Commission believes that the Affidavits of Support signed by sponsors should be legally enforceable.

Mechanisms should be developed that would permit public aid offices to recover support from sponsors who abandon their financial responsibility. Should these initiatives prove successful, deeming provisions may no longer be needed since sponsors will be required to provide actual support or repay the costs of assistance provided to those they sponsor.

The Commission recommends that the eligibility of aliens for public benefits and work authorization be defined in the Immigration and Nationality Act. The Commission would further require that every alien who is permitted to remain in the country on a temporary or permanent basis through legislation, court order, or administrative order be classified as to his or her eligibility for benefits and authorization to work.

The Commission believes that benefit eligibility determinations are complicated by the myriad statuses now afforded to individuals within this country. While the rights of lawful permanent residents, refugees, and asylees have been spelled out in immigration and benefit laws, the Executive Branch, Congress, and the courts have created various other statuses that may or may not denote benefit eligibility. The INA should specify categories of aliens by their work and benefit eligibility, such as: those eligible for work and needs-tested benefits; those eligible for work and only those benefits that accrue from employment; and those eligible for neither. Every alien should then be assigned to one of these categories.

Impact Aid

The Commission recommends a short-term authorization of financial aid to offset at least a portion of certain identifiable costs to states and localities resulting from unlawful immigration.

Difficulties in enforcing immigration law have created fiscal impacts that would not have occurred had enforcement strategies been more effective. The ineffective enforcement has been due, in some measure, to a lack of political will on the part of decisionmakers, including officials in states now heavily affected by illegal immigration.

The Commission believes that the federal government has a responsibility to help mitigate the fiscal costs of unlawful immigration, particularly through renewed efforts to reduce unlawful immigration. We recommend a short-term authorization of financial aid to states until such time as the enforcement measures take effect, contingent on the following conditions: better data and methods to measure the net fiscal impact of illegal immigration and reimbursement of only identifiable costs; a mechanism designed to ensure that governments do not expect or become dependent on this interim measure as a continuing source of funding; and a requirement that state and local governments cooperate with federal authorities to enforce the immigration laws of the United States.

IV. Facilitating Identification and Deportation of Criminal Aliens

An effective procedure for prompt and permanent removal of aliens ordered deported is an essential part of a credible deterrence policy. If people unauthorized to enter believe that they can remain indefinitely once having reached the interior of the nation, they may be more likely to come. The Commission is reviewing the full range of issues raised by U.S. exclusion and deportation procedures and plans to issue a separate report on this subject in FY 1995. For the present, we are limiting our specific recommendations to the removal of criminal aliens who represent the most serious threat to public safety.

The top priority of interior enforcement strategies should be the removal of deportable criminal aliens from the U.S. in such a way that the potential for their return to the U.S. will be minimized.

The Commission supports the Institutional Hearing Process [IHP] as an effective mechanism to ensure that deportable criminal aliens are identified and receive final orders of deportation while still serving their sentences. The IHP is cost-effective in that criminal aliens can be deported directly from state and federal prisons, alleviating INS' need to detain them until deportation proceedings take place. The Commission commends the negotiations taking place between federal immigration authorities and state correctional departments to enhance the efficiency of the IHP. Resources should be increased for investigations to identify criminal aliens and for the hearing process itself.

The Commission is concerned, however, about the ease with which deported criminal aliens can effect a reentry into the United States, particularly those who are returned to the Mexican border communities. In the case of Mexico, deported criminal aliens who have served their sentences should be repatriated to the interior of the country, rather than simply to the border, to lessen the likelihood of their return. The Commission also supports the use of bilateral treaties encouraging the transfer of criminal aliens to serve sentences in their own countries; the Department of State should monitor cases to be certain that sentences are served.

The Commission recommends that the federal government assume responsibility of the costs of incarcerating illegal aliens through reimbursement, by transferring the illegal aliens to federal facilities, and/or by negotiating with foreign governments to accept and incarcerate their nationals who are criminal illegal aliens.

Enhanced federal responsibility in this area will serve two purposes: to help mitigate the costs incurred by states and localities resulting from unlawful immigration; and to help facilitate the prompt deportation of illegal aliens who have committed criminal acts in the United States.

V. Increasing Capacity to Respond More Effectively to Emergency Movements of People

The Commission believes that effective immigration policy requires the capacity to respond effectively and humanely to immigration emergencies, a capacity not now in place.

Since 1980, the United States has received hundreds of thousands of people who left their own countries or entered this country under emergency circumstances. The exodus of Haitians is only the most recent example. Emergencies can overwhelm resources and create massive problems that remain long after the emergency is over.

The Commission held an expert consultation in Miami in which we heard many concerns about U.S. policy. Since then, a number of new policy directives have been issued. New asylum regulations, the establishment of safe havens in the region, new regulations for the Immigration Emergency Fund are three important developments in this area. The Commission plans to assess these efforts as well as other policies required to enhance U.S. capabilities in responding to immigration emergencies. We will issue a separate report during FY 1995 which will include discussion of contingency planning, refugee processing, asylum procedures, temporary protected status, aid to communities experiencing emergency arrivals of aliens, and other related issues.

VI. Addressing Unauthorized Migration at the Source

The Commission firmly believes that greater attention must be paid to the causes of migration in countries of origin as part of a strategy to deter unauthorized migration to the U.S.

Much as we support an enhanced enforcement effort by the United States, the Commission believes that unauthorized immigration will not be curbed by unilateral U.S. action alone. Effective deterrence of unlawful immigration must get to the root causes of these movements. Getting to these causes will require cooperation with other countries. While the U.S. clearly retains the sovereign right to protect our borders, migration is by definition an international phenomenon and international actions are needed to address it.

The Commission recommends that the United States give priority in its foreign policy and international economic policy towards long-term reduction in the causes of unauthorized migration to the U.S. The Commission also recommends adoption of near-term strategies targeted at reducing migration pressures in selected communities with high emigration rates.

In addition to these efforts, the Commission supports an enhancement of intelligence-gathering capacities to improve early warning of unauthorized migration. While the root causes of migration are readily discernible, it is harder to predict what specific factors will precipitate actual movements into the United States. Particularly with regard to immigration emergencies, intelligence is needed as well to assess the potential size and duration of the emergency, the mode of entry, the location to which migrants will come, and other characteristics of the emergency.

VII. Improving Data

Improved policy development and implementation require better data. Throughout the Commission's own inquiry, we have found it difficult to assess the effects of immigration policy and immigration itself because of inadequacies in the data. The Commission is working with the InterAgency Working Group on Immigration Statistics to develop specific recommendations to improve data collection. These recommendations will be detailed in our September report.

Looking Beyond 1994

As the members of the Committee know, the Commission is at a mid-point in its work. Our longer-term agenda is to assess and make recommendations about the implementation and impact of the Immigration Act of 1990. The Commission has already begun a systematic fact-finding process to measure the economic, social, demographic, and foreign policy effects of immigration. We considered whether to make recommendations in our September 1994 report about the legal immigration system, including the numbers and criteria for admission. We have decided not to do so at this time. The data needed to assess the full ramifications of current legal immigration policy are not available. The Immigration Act of 1990 was not implemented until 1992, meaning that we have only two years worth of data and little experience with its impact to use in determining its effects. An important new aspect of the law--the Diversity Program--has not even at this time been implemented.

The Commission will issue a progress report on legal immigration as part of its September report to Congress. We will continue to examine its effects during 1995. Should the Commission determine that any changes in legal immigration policy are in order, we will report our recommendations expeditiously.

I would be pleased to answer any questions you may have.


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