|Becoming an American:
Until relatively recently, the agencies responsible for implementing
immigration policy were underfunded, understaffed, and neglected. During
the past few years, however, massive increases in resources and personnel,
combined with significant political attention to immigration issues, have
provided new opportunities to address long-standing problems. A recent
General Accounting Office [GAO] report documented improvements—including,
for example, a more strategic approach to the formulation of immigration
enforcement programs. The Commission has seen progress in many management
areas—for example, more effective border management, increased numbers
of criminal alien removals, and asylum reform that has deterred abusive
claims while protecting bona fide refugees. Nevertheless, problems
remain in the operation of the U.S. immigration and naturalization system.
Further improvements must be made if it is to function smoothly and effectively,
anticipating and addressing, rather than reacting to, problems.
Mission Overload. Some of the agencies that implement the immigration laws have so many responsibilities that they have proved unable to manage all of them effectively. Between Congressional mandates and administrative determinations, these agencies must give equal weight to more priorities than any one agency can handle. Such a system is set up for failure and, with such failure, further loss of public confidence in the immigration system.
No one agency is likely to have the capacity to accomplish all of the goals of immigration policy equally well. Immigration law enforcement requires staffing, training, resources, and a work culture that differs from what is required for effective adjudication of benefits or labor standards regulation of U.S. businesses.
Diffusion of Responsibilities Among Agencies. Responsibility for many immigration functions are spread across numerous agencies within single departments or between departments. For example, responsibility for making decisions on skill-based immigrant and LDA applications is dispersed among the Department of Labor [DOL], the Department of Justice's [DOJ] Immigration and Naturalization Service [INS], and the Department of State [DOS]. Responsibility for investigating employer compliance with immigration-related labor standards is shared by INS and DOL.
The Commission considered a range of ways to reorganize roles and responsibilities, including proposals to establish a Cabinet-level Department of Immigration Affairs. After examining the full range of options, the Commission concludes that a clear division of responsibility among existing federal agencies, with appropriate consolidation of functions, will improve management of the federal immigration system. As discussed below, the Commission recommends a restructuring of the immigration system's four principal operations as follows:10
2. Adjudication of eligibility for immigration-related applications (immigrant, limited duration admission asylum, refugee, and naturalization) in the Department of State under the jurisdiction of an Undersecretary for Citizenship, Immigration, and Refugee Admissions;
3. Enforcement of immigration-related employment standards in the Department of Labor; and
4. Appeals of administrative decisions including hearings on removal, in an independent body, the Agency for Immigration Review.
The Commission recommends the following distribution of responsibilities within the Bureau for Immigration Enforcement.
Uniformed Enforcement Officers. The Commission recommends merger of the INS Inspectors, Border Patrol, and detention officers into one unit, the Immigration Uniformed Service Branch. Its officers would be trained for duties at land, sea, and air ports of entry, between land ports on the border, and in the interior where uniformed officers are needed for enforcement.
Investigators. The Commission believes investigations will be a key part of the new agency's responsibility. Investigators are the main agents responsible for identifying and apprehending people who are illegally residing or working in the United States, for deterring smuggling operations, for building a case against those who are not deterred, and for identifying, apprehending, and carrying out the removal of aliens with final enforceable orders of removal.
Intelligence. The Bureau will require an Intelligence Division to provide strategic assessments, training and expertise on fraud, information about smuggling networks, and tactical support to uniformed officers or investigators.
Assets Forfeiture Unit. As with the other DOJ enforcement agencies, the Bureau will have an Assets Forfeiture unit.
Pre- and Post-Trial "Probation" Officers. "Probation" functions are not now performed consistently or effectively, but the Commission believes this function is essential to more strategic use of detention space. As it is unlikely that all potentially deportable aliens could or should be detained awaiting removal, the Commission believes more attention should be given to supervised release programs and to sophisticated methods for tracking the whereabouts of those not detained.
Trial Attorneys/Prosecutors. The Commission believes that the Trial Attorneys, who in effect are the Government's immigration prosecutors, should be vested with, and should utilize, an important tool possessed by their criminal counterparts: prosecutorial discretion.
Field Offices. The new agency would implement its programs through
a series of field offices that are structured to address comprehensively
the immigration enforcement challenges of the particular locality. As the
location of these offices should be driven by enforcement priorities, they
are likely to be in different places than current district offices. Regional
Offices could be retained for administrative and managerial oversight of
these dispersed and diverse field offices.
The Commission considered the advantages and disadvantages of consolidating responsibility in the Department of Justice and in the Department of State, the two agencies that already have the most significant immigration, refugee, and citizenship duties. Bearing in mind the dual problems the Commission identified in the current structures—mission overload and fragmentation of responsibility, we concluded that consolidation in the Department of State makes greater sense than creation of a new, separate benefits agency within the Department of Justice.
Taking responsibility for immigration and citizenship services out of the Department of Justice sends the right message, that legal immigration and naturalization are not principally law enforcement problems; they are opportunities for the nation as long as the services are properly regulated. Further, the Department of Justice does not have the capacity internationally to take on the many duties of the Department of State. The Department of State, however, already has a domestic presence and an adjudication capability. It issues one-half million immigrant visas and six million nonimmigrant visas each year. DOS also provides a full range of citizenship services both domestically (issuance of almost 6 million passports annually) and abroad (e.g., citizenship determinations and registration of births of U.S. citizens overseas). Indeed, DOS has devoted a major share of its personnel and its capital and operating resources to these adjudicatory functions at embassies and consulates in more than two hundred countries and in passport offices in fifteen U.S. cities.
Consolidating responsibility requires some changes in the way the Department of State administers its immigration responsibilities, which we believe will strengthen the adjudication function. Because immigration has both foreign and domestic policy import, the Department of State will need to develop mechanisms for consultation with groups representing a broad range of views and interests regarding immigration. Such consultations already occur in the refugee program. The Department of State also will need to change its historic position on review of consular decisions. At present, decisions made at INS and the Department of Labor on many immigrant and LDA applications may be appealed, but no appeal is available on consular decisions. The Commission believes that immigrant and certain limited duration admission visas with a U.S. petitioner should be subject to independent administrative appeal (see below).
The Undersecretary, who would have direct access to the Secretary of State, would be responsible for domestic and overseas immigration, citizenship, and refugee functions. These include adjudication of applications for naturalization, determinations of citizenship overseas, all immigrant and limited duration admission petitions, work authorizations and other related permits, and adjustments of status. It also would have responsibility for refugee status determinations abroad and asylum claims at home. Overseas citizenship services would continue to be provided by consular officers abroad. The agency would have enhanced capacity to detect, deter, and combat fraud and abuse among those applying for benefits.
Within the Office of the Undersecretary would be a unit responsible both for formulating and assessing immigration policy as well as reviewing and commenting on the immigration-related effects of foreign policy decisions. This policy capacity would be new for the Department of State, but it is in keeping with the important role that migration now plays in international relations.
The Undersecretary would have three principal operating bureaus:
A Bureau of Immigration Affairs would focus on the immigration process, as noted above, as well as on LDA processing. In addition to its existing overseas work, the Immigration Affairs Bureau would be responsible for domestic adjudication/examination functions, including work authorization, adjustment of status, domestic interviewing, and the issuance of appropriate documentation (e.g., green cards). The Immigration Affairs Bureau also would staff immigration information and adjudication offices in areas with immigrant concentrations.
A Bureau of Refugee Admissions and Asylum Affairs would assure an appropriate level of independence from routine immigration issues and processes. It would combine the present Bureau for Population, Refugees and Migration [PRM] responsibilities for overseas refugee admissions, the refugee and asylum offices of the INS, and the DOS asylum office in the Bureau of Democracy, Human Rights and Labor. This would integrate the key governmental offices in one of our most important and historic international activities.
A Bureau of Citizenship and Passport Affairs would be responsible for naturalization, other determinations of citizenship, and issuance of passports. Local offices performing some citizenship functions, such as overseas travel information, passport and naturalization applications, testing and interviews, could be located with local immigration services.
Overseas citizen services would continue to be handled within the newly consolidated organization. These services include: responding to inquiries as to the welfare or whereabouts of U.S. citizens; assisting when U.S. citizens die, are arrested, or experience other emergencies abroad; providing notarial services; and making citizenship determinations and issuing passports abroad.
Quality Assurance Offices would oversee records management, monitoring procedures, fraud investigations, and internal review. At present, monitoring of the quality of decisions made on applications for immigration and citizenship benefits receives insufficient attention. The Commission believes that quality decisions require some form of internal supervisory review for applicants who believe their cases have been wrongly decided. This type of review helps an agency monitor consistency and identify problems in adjudication and offers a means of correcting errors. A staff responsible for and dedicated to ensuring the quality of decisions taken on applications for immigration and citizenship should address some of the weaknesses in the current system, such as those recently identified in the naturalization process.
With respect to the domestic field structure for implementing these programs, the Regional Service Centers [RSCs] and National Visa Center [NVC] would continue to be the locus of most adjudication. The physical plants are excellent and the locally-hired staffs are trained and in place. At this time, information is passed from the RSCs to the NVC when the applicant for admission is overseas. Overseas interviews would continue to take place at embassies and consulates.
A range of other interviews would take place domestically. Ideally,
to avoid long lines and waits for service, there would be smaller offices
in more locations that the current INS district offices. The Commission
recommends against locating these offices with the enforcement offices
discussed above. Asking individuals requesting benefits or information
to go to an enforcement agency sends the wrong message about the U.S. view
of legal immigration.
Sanctions Against Employers Who Fail to Verify Work Authorization. The Commission believes all worksite investigations to ascertain employers' compliance with employment eligibility verification requirements should be conducted by DOL. DOL already conducts many of these investigations. However, under this recommendation, DOL also would assess penalties if employers fail to verify the employment eligibility of persons being hired. DOL would not be required to prove that an employer knowingly hired an illegal worker, just that the employer hired a worker without verification of his or her authorization to work. With implementation of the Commission's proposal for a more effective verification process, this function will be critical to deterring the employment of unauthorized workers.11
Enforcement of Skill-Based Immigrant and Limited Duration Admissions Requirements. The Commission believes an expedited process is needed for the admission of both temporary and permanent foreign workers, as discussed earlier in this report, as long as adequate safeguards are in place to protect the wages and working conditions of U.S. workers. To prevent abuse of an expedited system, an effective postadmission enforcement scheme is necessary.
DOL's other worksite enforcement responsibilities place it in the best
position to monitor employers' compliance with the attestations submitted
in the admissions process. DOL investigators are experienced in examining
employment records and interviewing employees. Penalties should be established
for violations of the conditions to which the employer has attested, including
payment of the appropriate wages and benefits, terms and conditions of
employment, or any misrepresentation or material omissions in the attestation.
Such penalties should include both the assessment of significant administrative
fines as well as barring egregious or repeat violators from petitioning
for the admission of permanent or temporary workers.
The review function works best when it is well insulated from the initial adjudicatory function and when it is conducted by decisionmakers entrusted with the highest degree of independence. Not only is independence in decisionmaking the hallmark of meaningful and effective review, it is also critical to the reality and the perception of fair and impartial review.
Hence, the Commission recommends that the review function be conducted by a newly-created independent reviewing agency in the Executive Branch. To ensure that the new reviewing agency is independent and will exist permanently across Administrations, we believe it should be statutorily created. It would incorporate the activities now performed by several existing review bodies, including the DOJ Executive Office for Immigration Review, the INS Administrative Appeals Office, the DOL Board of Alien Labor Certification Appeals, and the DOS Board of Appellate Review. It also would have some new responsibilities.
This reviewing agency would be headed by a Director, a presidential appointee, who would coordinate the overall work of the agency, but would have no say in the substantive decisions reached on cases considered by any division or component within the agency.
There would be a trial division headed by a Chief Immigration Judge, appointed by the Director. The Chief Judge would oversee a corps of Immigration Judges sitting in immigration courts located around the country. The Immigration Judges would hear every type of case presently falling within the jurisdiction of the now-sitting Immigration Judges.
The reviewing agency also would consider appeals of decisions by the benefits adjudication agency, using staff with legal training. Although the benefits adjudication agency will handle a wide range of applications—from tourist visas to naturalization and the issuance of passports—not all determinations will be appealable, as is the case under current law. We envision that those matters that are appealable under current law would remain appealable. The only difference is that the appeal would be lodged with and considered by the new independent Agency for Immigration Review rather than by the various reviewing offices and Boards presently located among the several Departments. The administrative appeals agency also would consider appeals from certain visa denials and visa revocations by consular officers. Under current law, such decisions are not subject to formal administrative or judicial review. The Commission believes that consular decisions denying or revoking visas in specified visa categories—i.e., all immigrant visas and those LDA categories where there is a petitioner in the United States who is seeking the admission of the visa applicant—should be subject to formal administrative review. The visa applicant would have no right to appeal an adverse determination. Instead, standing to appeal a visa denial or revocation would lie only with United States petitioners, whether U.S. citizens, lawful permanent residents, or employers.
An appellate Board would sit over the trial and administrative appeals
divisions of the new independent Agency for Immigration Review. This appellate
Board would be the highest administrative tribunal in the land on questions
and interpretations of immigration law. It would designate selected decisions
as precedents for publication and distribution to the public at large.
Its decisions would be binding on all officers of the Executive Branch.
To ensure the greatest degree of independence, decisions by the Board would
be subject to reversal or modification only as a result of judicial review
by the federal courts or through congressional action. Neither the Director
of the reviewing agency nor any other agency or Department head could alter,
modify, or reverse a decision by the appellate Board.
More specifically, the Commission recommends:
Further, the Commission urges the federal government to support continuing
research and analysis on the implementation and impact of immigration policy.
In particular, the federal government should support data collection and
analysis in the following areas: longitudinal surveys on the experiences
and impact of immigrants; on the experiences and impact of foreign students
and foreign workers admitted for limited duration stays; and on the patterns
and impacts of unlawful migration.
10See Appendix for Commissioner
Leiden’s concurring statement.
11At present, DOL investigates employer compliance with the requirement to check documentation and fill out the I-9 form, while INS does this paperwork review and investigations of knowing hire of illegal aliens. The latter investigations are hampered, however, by the absence of an effective verification process and proliferation of fraudulent documents.