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Volume II.
Site Visit and Consultation Summaries:
1.
Staff Summaries of April 3-4, 1997 Consultations on Structuring, Organizing
and Managing an Effective Immigration System.
2.
National Visa Center Site Visit, March 1997.
3.
Dallas Site Visit, January 1997.
4.
Los Angeles Site Visit, December 1996.
5.
Prosecutorial Discretion Consultation, September 1996.
Additional Background Information:
6.
Excerpt from "Immigration-The Beleaguered Bureaucracy," Milton D. Morris.
7.
"The Federal Immigration Bureaucracy: The Achilles Heel of Immigration
Reform," Daniel W. Sutherland.
8.
Summary of INS Commissioner Priorities 1997.
9.
Excerpt from "Budgeting for Performance: Strategy, Flexibility, and
Accountability to Meet a Demanding Mission," National Academy of Public
Administration, 1997.
10.
Letter on INS implementation of NAPA recommendations
11.
Excerpts from Government Performance and Results Act
12.
GAO Report, Customs Service and INS, Dual Management Structure for
Border Inspections Should Be Ended, June 1993.
13.
Unauthorized Migration: An Economic Development Response, Report of the
Commission for the Study of International Migration and Cooperative
Economic Development, 1990, p. 27-32.
14.
Section VII - Administrative Issues from Select Commission on Immigration
and Refugee Policy Final Report, 1981.
15.
Excerpts from "Whom We Shall Welcome," The Report on the President's
Commission on Immigration and Naturalization, 1953.
Clinton Presidential Records
Digital Records Marker
This is not a presidential record. This is used as an administrative
marker by the William J. Clinton Presidential Library Staff.
This marker identifies the place of a tabbed divider. Given our
digitization capabilities, we are sometimes unable to adequately
scan such dividers. The title from the original document is
indicated below.
Divider Title:
1
STRUCTURING, ORGANIZING, AND MANAGING AN EFFECTIVE
IMMIGRATION SYSTEM CONSULTATION:
WHAT REFORMS ARE NEEDED?
Staff Summary
April 3, 1997, Washington, DC
Commissioners Present: Lawrence Fuchs, Chair, Harold Ezell, Robert C. Hill,
Warren R. Leiden, Bruce Morrison
Staff Present: Susan Martin, Andrew Schoenholtz, David Levy, Patricia Dunn, Gregg
Beyer, Brett Endres
Participants:
Alex Aleinikoff, Former Executive Associate Commissioner, INS
Diego Asencio, Former Chair, Commission for the Study of International
Migration & Cooperative Economic Development
James Blume, Assistant Director, Audit Operations Group/Justice, GAO
Roger "Buck" Brandemuehl, Former Chief, U.S. Border Patrol
Barry Kefauver, Former Executive Director, Bureau of Consular Affairs
Albert J. Kliman, Senior Research Associate, National Academy of Public
Administration Panel on INS
Michael Lempres, Former Executive Associate Commissioner, INS
Milton Morris, Senior Vice President, Joint Center for Political and Economic
Studies
Ruth Anne Myers, Former INS District Director, Phoenix, Arizona
Peter K. Nune, Former U.S. Attorney and Assistant Secretary of the Treasury for
Law Enforcement
Joaquin F. Otero, Former Deputy Under Secretary of Labor for International
Labor Affairs
Daniel W. Sutherland, Legal Scholar, Center for Equal Opportunity
The Chair opened the meeting by explaining that the Commission is looking at the
issue of immigration management, organization, and structure in the federal
government. The Commission looks to the participants to provide guidance on
1
optimum structure and/or improvements to the current system. Most participants
are former Executive Branch officials with numerous years of government service;
others have done reports examining the Executive Branch agencies and have made
recommendations of their own.
Former INS General Counsel, Alex Aleinikoff warned the Commission not to
recommend changes in the structure of the immigration system just for the sake of
making changes and/or to make the agencies seem neater and better organized. The
current system looks like an odd structure for a reason; it is actually quite workable.
In terms of the service versus enforcement functions of INS, INS Officers perform
both functions simultaneously and splitting them is hard to conceptualize. The
perception of enforcement dominating service at INS results from the large amount
of resources and attention enforcement receives. Poor service is due to a lack of
culture, training, and resources.
With the recent additional resources allocated to INS and the mounting demands
on the service for accountability and management, he said a mix of management
analysts need to be brought in as part of the INS culture. Although many of the
systems problems relate to management rather than structure, major organization
reform is justified. As there is no high place in the Administration to address
immigration policy development, policies that are formulated tend to be reactive
and crisis driven. Aleinikoff recommended establishment of a Cabinet-Level
Department of Migration to provide needed skills and, most importantly, high level
policy rank.
Policy Leadership
INS is not the proper place to make immigration policy; rather, a high-level central
locus where major issues of immigration policy can be debated, discussed, and
decided is needed. Wherever the final location of immigration policymaking, it
should consider demographic effects as a whole and the effect of certain immigra-
tion situations on the rest of the country. Immigration policy has not received the
attention it needs; for most of the involved agencies outside of INS, policies have
2
been only reactive, not proactive. While many participants agreed that a higher
level locus for policymaking is needed, they differ on where that should be.
Department. One recommendation was for a Cabinet-level Department with a
Secretary rank to direct all the functions of the INS, the Visa Office and the Depart-
ment of State [DOS], and labor certification from the Department of Labor [DOL].
This Department would have both a Secretary and Deputy Secretary thinking about
immigration issues. An Assistant Attorney General for Immigration or an Associ-
ate Attorney General are not high enough ranking to do what needs to be done on
immigration. The present rank of the INS Commissioner is comparable to that of an
Assistant Secretary.
Presidential Advisor. A special advisor or advisory group to the President was also
suggested. An Immigration Czar, much like the Drug Czar, was briefly considered.
The purpose would be to raise immigration as a highly visible issue requiring
presidential attention and to have a seat at the table during important meetings
with the other Cabinet Secretaries. A high level advisor would elevate the issue
and convey leadership (or at least give the appearance of executive concern) within
the White House and to the Congress.
Enhancement of the Domestic Policy Council [DPC] role. The DPC already has
responsibility for interagency coordination on immigration policy. Some partici-
pants expressed concern that placing immigration policy development responsibility
in the White House would make it overly subject to political pressure. Others
responded that the President must make the final decision on immigration policy
issues and that building a capacity within the Executive Office of the President for
analysis of immigration would ensure the receipt of better information on which to
base those decisions.
Service/Enforcement Split
Participants held two differing views on splitting the service and enforcement
functions: (1) they should remain in the same agency, but with a clear split within
that agency; (2) they should be totally split into two different agencies. Though these
3
issues were discussed briefly, no one seemed to have a clear idea or recommenda-
tion on how this should be accomplished.
Border Management Agency
The topic of a border management agency that would combine the enforcement
functions of INS Inspections, the Border Patrol, and U.S. Customs into a single
agency also arose. Although this proposal has been consistently recommended
since the 1930s, it still has not been implemented, perhaps because of the
jurisdictional division of the Congressional Appropriations Committee and
Subcommittees overseeing DOJ and the Department of the Treasury.
Bureau of Immigration and Border Control
A Bureau of Immigration and Border Control also was suggested. Its single mission
would be immigration control and would have three sectors: administration,
services, and enforcement. The Bureau's Director would report directly to the
Attorney General. The directors of administration, services, and enforcement also
would have direct line authority. This differs from the present system in that
service and enforcement would be split within the Bureau and reporting would be
to a higher level in the Department of Justice [DOJ]. As in the FBI, the Director of
the Bureau would be appointed for a fixed term that exceeded four years.
Congressional and Political Will
It was mentioned that many very good recommendations have come from previous
Commissions on immigration, but that Congress "did not have the stomach to do
what was necessary." Participants felt the Commission could go either of two ways:
(1) submit a report that had recommendations for a "perfect world" scenario that
Congress would have no plans to implement and would sit on a shelf with many
other reports; or (2) submit recommendations that would make incremental
changes, not "big picture" reforms.
4
Other Issues
A few other problems or issues were identified and discussed at the meeting.
Mission Overload. Some participants mentioned that INS currently has too many
high priority items on their list and not enough time and resources to accomplish
them all. The participants would prefer to see only three things listed as top
priorities, not the current much-longer list.
Detention. Detention constitutes a large portion of the INS budget and many of
the participants suggested that INS is not set up for long-term detention of aliens.
The Bureau of Prisons [BOP] and the U.S. Marshals have their own systems to deal
with detention within the DOJ. INS has neither the ability nor the knowledge to
implement long-term detention. The BOP and U.S. Marshals detain criminals,
whereas, those that violate the immigration laws, which are fundamentally civil in
nature, are not criminals. There are, however, an increasing number of detained
aliens who have been convicted of a crime. If the INS did not have to concern itself
with running detention facilities, but instead could detain aliens run by another
entity, it could do a better job.
Conclusions
The Chair asked participants to list three management and structural issues they
would like to see changed or implemented. The recommendations fell into three
areas.
Management
Flood INS with managers from the outside who are not immigration
experts but who have the management skills necessary to run an
agency effectively.
5
Give Regional Directors a greater role in developing priorities, goals,
and expectations, and develop a program evaluation capability to
ensure that programs are moving towards and meeting these goals.
Perform quality assurance checks and provide for a system of feedback
into to ensure that what has been done not only has been finished but
that it also has been done properly.
Have managers and policymakers identify and be held accountable for
management goals.
Pilot test privatization at INS, including detention models and more
fee collection for services.
Improve communication between headquarters and the field in terms
of management meetings, training for field officers, budget accountabil-
ity, and ensure that the requested and authorized resources get to the
field in a more timely manner.
Correct overlaps and eliminate redundancies in which two agencies are
performing essentially the same function.
Policy
Separate service and enforcement functions within INS, keeping the
two within the same agency but consolidating the functions of each.
Consolidate enforcement functions of the Border Patrol, Inspections,
and Customs to control illegal migration.
Have detention handled by some other agency and only monitored by
INS rather than having INS detain aliens for the long-term.
6
Streamline and reform the agencies involved in immigration so that
each would have an internal office or person responsible for
policymaking.
Structure
Have policy development made at a higher level to address DOS, DOL,
and DOJ issues.
Continue the priority process (which INS has done successfully in the
last few years) in setting objectives and goals and fulfilling them.
Develop an employee identification system so that the employment
magnet is not pulling people here that our system is trying to keep out.
7
MANAGEMENT TEAM CONSULTATION. Staff Summary
April 4, 1997, Washington, DC
Commission Members Present: Lawrence Fuchs (presiding), Harold Ezell, Robert
Hill, Warren Leiden, Bruce Morrison
Staff Present: Susan Martin, Andy Schoenholtz, Gregg Beyer, Pat Dunn, Brett
Endres, David Levy
Participants:
Stephen R. Colgate, Assistant Attorney General for Administration
Donna Hamilton, Deputy Assistant Secretary of State for Visa Services
Seth Harris, Deputy Assistant Secretary of Labor for Policy
John B. McGowan, Passenger Process Owner, Office of Field Operations, Customs
Service
Doris Meissner, Commissioner of INS
Steve Mertens, Senior Program Examiner, OMB
Anthony C. Moscato, Director, Executive Office for Immigration Review
Phyllis Oakley, Assistant Secretary of State for Population, Refugees, and Migration
Gerri Ratliff, Counsel to the Deputy Attorney General
Mary Ryan, Assistant Secretary of State for Consular Affairs
Steve Warnath, Senior Policy Analyst, Domestic Policy Council
Seth Waxman, Acting Deputy Attorney General
Vice Chair Fuchs convened the consultation, welcomed participants, and outlined
the discussion ground rules.
INS Commissioner Meissner
Policy development has worked quite well in the last several years. Three crucial
arenas demonstrate success within existing structures: the more than doubling of
the INS budget in the last three/four years, with continuing growth; the handling of
8
emergency migrations, such as Cuba and Haiti; and, the overall commitment and
effort that has gone into managing the immigration system.
Separating border enforcement activities from the rest of immigration enforcement
would be difficult because:
INS is now linking its border enforcement efforts internally and
beginning to share intelligence and understanding both of what the
major entry routes are and how they connect to employment and
employers;
Separation would constitute a return to a more fragmented system
when INS and the Customs Service are now at a point where there is
essential parity in resources, resulting in the development of true port
management in the busiest port of entry, San Ysidro;
These functions are mutually reinforcing, for example: an effective
asylum system requires eliminating the abuses in the system, which
means focusing on enforcement; in naturalization, the greatest
weakness is the ability to fingerprint and get criminal records in an
effective and timely manner.
While, at the present time there is no basis for fundamental restructuring, one area
in which improvements are called for is the way in which the international
dimensions of migration management and the domestic dimensions intersect.
Smuggling and law enforcement pressures require global activity to achieve truly
effective border control. There is a need for a substantial overseas law enforcement
presence. Much additional work remains to be done in joint planning and out-
comes and performance effectiveness.
Integration of databases between INS and other agencies shows great promise: it is
becoming acutely important in employer verification and in cooperative efforts
with the Social Security Administration.
9
Assistant Secretary Mary Ryan
The budget and planning process is very complex and there are numerous discon-
nects. Planning is difficult when one doesn't know how much money will be
available from year to year. Immigration needs additional funding (also mentioned
by Commissioner Meissner).
After the World Trade Center bombing, Congress recognized the need for additional
consular services resources and authorized a machine-readable visa fee. Every visa
issuing post now is automated. There is a direct tie-in to the classified lookout
system at each such post.
The Bureau of Consular Affairs is working to develop better strategic plans.
Interagency efforts to deter illegal immigration, identify criminals and terrorists, and
combat fraud figure very prominently in these draft strategic plans. The Govern-
ment Performance and Results Act [GPRA] is driving these efforts and it will also
lead to further integration of the budget and planning processes.
Organizational changes are not necessary; more can be gained by actively supporting
the growing integration of INS and the Department of State [DOS] operations
through increased coordination. DOS is strongly against any transfer from DOS of
the visa function, which involves a lot more than just denying entrance to ineligi-
ble aliens; the manner in which the visa function is performed has a decided effect
on our relations with other nations. The proposed travel of individual aliens to the
U.S. relates to foreign as well as domestic policy, including situations involving
terrorist organizations and drug traffickers. As international movement of peoples
increases in importance in our bilateral and multilateral relations, the impact of
visa operations on our foreign policy will be even greater. DOS has officers trained
and experienced in the operation and policy aspects of immigration as it relates to
foreign policy. Further, transfer of the visa function would eliminate a source of
talent because the officers now doing consular work would not transfer to an agency
that only does immigration.
10
Deputy Assistant Secretary of Labor Seth Harris
The problems with the employment-based immigration systems are problems of
conflicting policy goals, different policy objectives, and different levels of political
influence among interest groups in our political economy. The goals are not
matched by systems intended to meet those goals. In the nonimmigrant system,
which purports to satisfy short-term skill-based shortages, there is no labor market
test to determine whether such shortages exist. Problems in the permanent
employment-based system that were pointed out in the recent Department of Labor
[DOL] Inspector General's report cannot be addressed by moving boxes around
within the government. Creation of an Assistant Secretary of Labor for Immigra-
tion would not cause these problems to go away.
Consolidating worksite enforcement in a single agency would not solve the
problems. While there is a tension between the DOL roles of enforcing worker
protections and of cooperating with INS, there are conflicts between the DOL
enforcement and service functions and whether DOL is serving them to get the
desired outcome. Does DOL serve the customer's goal, depending how the customer
is defined? Does DOL serve its policy goals? The question that should be asked,
both from the perspective of the employer and the immigrant, is: Is this the most
efficient way of having a foreign worker admitted to the U.S.?
Discussion
At the conclusion of the three presentations, one Commissioner observed that there
was an overwhelming disconnect between current and former executive branch
officials' perception of structural problems in the immigration system. The current
incumbents stated that there are essentially no problems; in contrast the previous
day's consultants pointed out numerous problems. Participants replied that there
are problems, but they questioned the extent to which these problems are
structural.
11
Selection of Immigrants and Nonimmigrants
The Commission asked if apparent redundancies in the adjudication of immigra-
tion benefits could be reduced. One Commissioner pointed out that DOL, INS, and
DOS are involved in the selection of temporary and foreign workers and that USIA
has responsibility for temporary exchange visitors who work in the U.S.
A participant noted that the double-check system (DOS and INS) used in issuing
visas is very useful and important; going to a single agency issuance would lose this
safeguard. Another said that the principal employment-based immigration
problems are not management or structural, but are statutory, policy, and political
problems that involve competing policy objectives. Moving boxes or consolidating
functions does not necessarily solve problems. The goal should be how to save the
customer and the government money and still get the same or better policy results.
A Commissioner asked if reform in this area was hampered by DOL declaration that
the nonimmigrant, H-1B, and labor certification process policy level is illegitimate.
He said that DOL should have a role, but that role is difficult to define when the
agency itself doesn't think the program is legitimate. A participant argued that for
four years DOL has been pushing a legislative agenda to reform the permanent
program, but the nonimmigrant program, which is a feeder system into the
permanent program, must also be reformed.
In the meantime, DOL is doing the best job it can with shrinking resources. DOL
relies on the State Employment Security Agencies [SESAs] that took a deep funding
cut. Eliminating the SESA role may not make sense as the SESAs may be better
positioned to do a local labor market test and determine if recruitment has been
done.
Data Sharing
Participants pointed to the greatly improved sharing of data during the past few
years as a way of making the diffused immigration system work efficiently. The
DataShare program in which INS and DOS share information on visa applications
12
and approvals, adjustments of status, entry to the U.S., and other immigration data
involves consular posts, the National Visa Center, INS Regions, and ports of entry.
DataShare provides current immigration information on individuals to those who
need it. As required by the National Performance Review, DataShare helps reduce
redundancies and makes for more effective use of resources. At present, 80 percent
of the immigrant visas issued by DOS are in the DataShare system under which the
information is directly transferred to INS.
Three direct and immediate benefits of data sharing are more accurate data, more
timely data, and lower costs. While it is more expensive initially, it pays off in the
long run.
A system to go directly from the granting of citizenship to the production of a
passport without going through a separate passport application, was described as
another way to bridge agency responsibilities. There is similar potential at the
beginning of the process to link immigrant visas and the issuance of green cards,
which can be connected with the issuance of social security cards.
Policy Development
The Commission asked how to get sustained policy development, particularly on
legal immigration policies, in the absence of a compelling crisis. A participant
reported that in the last few years, policy development on legal immigration did not
occur in the way some people wished because it was determined that the focus
would be on illegal immigration. Another reported that in 1994 and 1995 there were
interagency working groups that addressed issues such as border management, legal
immigration, and benefits. He said that the Administration did not ignore legal
immigration issues but made fighting illegal immigration its priority.
Commissioners asked about the appearance that DOL was advocating fundamental
statutory changes in the employment-based system on its own without the support
of the Administration. Participants stated that DOL was advocating the Administra-
tion's position and outlined all of the steps that occurred in developing a consensus
Administration position, including meetings with the Domestic Policy Council
13
[DPC] and appropriate Cabinet officials. The steps included the development of
recommendations through channels within DOL. There was a meeting involving
Secretary of Labor Reich, Carol Rasco, and Doris Meissner that included a discussion
of the CIR recommendations. There was a principals-level meeting, and those
views were incorporated into letters sent by the Administration to the Congress.
DOL views were arrived at in conjunction with the DPC and INS. The Chief of Staff
was consulted and he met with cabinet secretaries, the head of National Economic
Council [NEC] and the head of DPC. The conclusion was that the DOL never took
any action that did not constitute an Administration consensus.
Internal Reorganization of INS
One participant recommended an internal reorganization of INS to clarify organiza-
tional lines of communications and responsibilities. He said there was a problem
with communications between the field and headquarters. INS has a proposal in
the works to address some changes needed as the result of the reorganization done
two years ago. Additional management and policy analyst staff at INS headquarters
was also recommended.
Domestic Policy Council
Recommendations were made to strengthen the Domestic Policy Council, using the
National Security Council [NSC] as a model. NSC has interagency working groups
with staff to develop the issues being considered. Initial discussions and comments
are then provided to Deputies Committee for its consideration which, in turn
frames the issues and structures options for the Principals Committee consisting of
Cabinet members and the National Security Advisor. This group then recommends
appropriate action to the President. The NSC model has worked well for decision-
making on issues that cut across agency lines.
One participant noted that immigration presents a mixture of domestic and foreign
policy issues, requiring the cooperation between DPC and NSC on cross-cutting
issues. Another said that it would be helpful to increase staff at DPC to enable it to
14
perform the consultative functions performed by the NSC, but that there is a
question of whether additional funds could be available and, if available, whether
they would be assigned to DPC.
Department of Justice
Participants were asked about a proposal for some type of superstructure at DOJ to
serve as coordinator between INS, EOIR, Office of Immigration Litigation, and to
intersect with the FBI and other agencies. A DOJ representative said the Office of the
Deputy Attorney General serves this function. The importance of immigration
requires it to have a place in DOJ very close to the Attorney General. Another
participant said that the current structure at DOJ has improved coordination
significantly. At the Attorney General's biweekly meeting on immigration there is
high level representation from the appropriate parts of DOJ to bring all pertinent
views to the table.
The larger problem is coordination with other agencies. A participant suggested that
core law enforcement criminal justice functions be consolidated within DOJ. This
would include ATF, Customs Service, and others. Another participant pointed out
that the Customs Service also has responsibilities to collect custom duties. This
taxation responsibility is different from law enforcement functions.
Worksite Enforcement
Questions were raised about involvement of both DOJ and DOL in enforcement
of employer sanctions. A Commissioner asked if there wasn't a better way to handle
employer sanctions enforcement than the current system of four agencies, INS,
Office of the Special Counsel, Wage and Hour, and the Office of Federal Contract
Compliance Programs [OFCCP]. DOL has been wary of too great a participation in
immigration-related activities. Most employment law enforcement is complaint-
driven, and if complainants expect to be deported as a result of their complaint,
there is a great disincentive to complain about exploitation.
15
To the extent workers view DOL as immigration enforcers, it will have a- detrimen-
tal effect on low wage enforcement. A Commissioner pointed out that without an
effective worksite enforcement system, there is no effective illegal alien prevention
program. Moreover, as employers who hire illegal aliens are more likely to violate
other labor standards, the DOL has a vested interest in reducing illegal migration.
Hence, while employer sanctions can be seen as a U.S. worker protection and a labor
standard, DOL has never accepted employer sanctions as such.
In the absence of consolidation of responsibility, better data sharing would help
reduce duplication of effort. One participant recommended greater information
sharing between INS and DOL on specific employers who violate immigration
and/or wage laws. He said that it is difficult, however, as INS and DOL do not use
the same database.
Border Management
Commissioners asked for comments on two suggestions with respect to the border
patrol: creation of a separate border management agency including Customs; and
consolidation of border enforcement (the border patrol and deputies) within INS.
One participant argued strongly for integration within INS, such as an office of
border management or border enforcement including both the border patrol and
inspections. A Commissioner asked if the division of Border Patrol as a separate
office or agency within INS is still logical or whether INS is moving away from that.
It isn't logical for purposes of an effective border control strategy, but is logical for
historical and other reasons occupationally and personnel-based reasons and
because it is a uniformed activity requiring the carrying of firearms.
The Commission asked if the Border Patrol differed from Investigations in its
responsibilities. The respondent equated the border patrol to police on the beat and
investigators to detectives. A Commissioner observed that the Commission was
trying to get at the integration of the enforcement mission by clarifying distinctive
responsibilities and roles, with everyone striving to reach the same goal, whether it
was border management or removals. Another Commissioner noted that in the
past ports of entry have not had a high priority-except for the last few years when
16
they've gotten a lot more resources. He said they need to be a part of enforcement,
not examinations.
Removals
One of the gaping needs of interior enforcement is the removal of the hundreds of
thousands of aliens under final deportation orders. Removal needs to be made a
priority, an observation that garnered considerable support. One participant said
that it does no good to do enhanced worksite enforcement and apprehensions
without carrying the cases through to the removal stage. She said that it is impor-
tant to get the systems and resources aligned so that those who are picked up in the
first place have a very high probability of ultimately being removed. She said that
the process is getting better, but the removal capacity is not yet where it should be.
Detention
A Commissioner pointed out that the FBI and other law enforcement agencies do
not detain those whom they apprehend. The U.S. Marshals Service has responsibil-
ity for pretrial detention and the Bureau of Prisons for postconviction detention.
According to one respondent, INS is very uncomfortable with long-term detention
that grows out of asylum and the appellate process. INS does not want to be in the
long-term detention business because it involves factors that are not within its area
of expertise. However, with reform of the asylum system and expedited exclusion,
there should be a reduction in long-term detention. Asked why detention couldn't
be performed by the Marshals Service or another agency that deals with detention of
nonconvicted individuals, a DOJ representative stated that in response to a Congres-
sional request in the DOJ 1997 appropriations bill, a detention planning committee,
which includes INS, the U.S. Marshals Service, Bureau of Prisons, U.S. Attorneys,
and EOIR, is undertaking a study. Approximately 20 percent of INS resources now
are devoted to detention.
17
Clinton Presidential Records
Digital Records Marker
This is not a presidential record. This is used as an administrative
marker by the William J. Clinton Presidential Library Staff.
This marker identifies the place of a tabbed divider. Given our
digitization capabilities, we are sometimes unable to adequately
scan such dividers. The title from the original document is
indicated below.
Divider Title:
2
Meeting with National Visa Center Managers, Portsmouth, N.H.
March 7, 1997
Commissioner Present:
Robert C. Hill
Staff Present:
Andrew Schoenholtz, Deputy Executive Director
James Halmo, Senior Policy Analyst
Participants:
Josefina L. Papendick, Center Director
John Kuschner, Administrative Officer, NVC and the National Passport Center
Sherry Dollar, Project Manager, Statistica
George Taylor, Systems Manager, Statistica
Jerry Rice, Visa Processing Supervisor, Case Processing, Statistica
Andrew Hayden, Visa Processing Supervisor, Public Inquiry, Statistica
Susan Merfeld, Visa Processing Supervisor, Case Processing, Statistica
Shirley Martin, Federal Bureau of Investigation [FBI]
The National Visa Center Director provided an overview of the Center's origins and the visa
functions over which it currently has responsibility -- immigrant visas petitions and the annual
diversity program. The Center was formally opened in April 1994, as a successor to the
Transitional Immigrant Visa Processing Center [TIVPC] which had been established in October
1991 to cope with the major increase in immigrant visa cases resulting from the Immigration Act
of 1990.
Immigrant Visa Petition Processing. The Center has formal responsibility to maintain non-
current immigrant visa petitions until they become current and are processed by INS adjudicators
or State Department consular officers. Two and a half million immigrant visa petitions
(representing four million petition beneficiaries) are currently housed at the facility. The Center
receives 8-10,000 cases weekly from INS (including family-sponsored, employment-based,
special immigrant, adoption, and following-to-join cases of asylees and refugees) under what it
terms 'global processing.' Monthly qualifying dates are received from the Visa Office, feed into
the Center's computer system, and petitions falling within the qualifying dates are processed
initially to determine if the petition beneficiaries wish to adjust status in the U.S. under Section
245(i) of the INA. Since the start of the adjustment program in December 1994, out of a possible
260,000 cases, 117,000 principal beneficiaries have stated theat they will adjust status in the
1
U.S., 99,000 have not responded to the Center's inquiry, 26,000 stated they will process their
applications overseas, and 24,000 stated that they had already adjusted status. INS can adjust
status without the formal petition, using solely the notification of petition approval. The NVC has
been unable to determine why the Service has not requested the return of the actual immigrant
visa petitions for those persons who have adjusted status in the U.S. The Section 245(i) program
sunsets as of September 30, 1997.
Those petition beneficiaries desiring visa processing overseas are advised in writing of
documents required for visa processing and the petitions themselves are forwarded abroad. The
petitions together with computer tapes containing the formal data necessary for immigrant visa
processing are mailed normally weekly to the embassies and consulates designated to process the
petitions. 20,000 to 25,000 cases are processed monthly and sent to overseas posts.
Data Share Program. The State Department the INS, and the Customs Service participate in
an ongoing Data Share Program to reduce clerical keystroking by personnel from all agencies and
to speed up the sharing of information. The NVC receives electronically the information keyed
into the INS database system on approved immigrant visa petitions from the four INS Service
Centers. The information is later confirmed upon receipt of the actual petitions and additional
information (not required by INS with its contractors) is keyed into the NVC immigrant visa
petition database. The petition information is subsequently transferred weekly on current cases to
overseas posts by electronic mail, for those on-line, and by computer diskette for those without
direct electronic mail capability. At the same time, the computer information is sent to the U.S.
Customs Service's Treasury Enforcement Communication System [TECS] port-of-entry
database. TECS is the primary database system in the federal government's Interagency Border
Inspection System [IBIS]. Currently fifteen overseas posts are on-line to transmit to the NVC the
data on immigrant visas automatically upon issuance by consular officers. The NVC's
telecommunication system then automatically transfers the issuance data to the TECS database
system to match up with the previously stored immigrant petition information. The goal is to
have issuance data arrive electronically in TECS within forty-five minutes of immigrant visa
issuance. This time frame is significant for ports of entry near Ciudad Juarez, the closest of the
fifteen participating foreign service posts to the U.S. border. When an immigrant arrives at a port
of entry, INS personnel will be able to query the TECS database system and process the
immigrant's application for entry. The entry data will subsequently be sent to the Service's
immigrant card facility for issuance of alien registration cards.
Diversity Immigration Programs. The Center is currently running two diversity programs --
DV-97 and DV-98-- in accordance with the program established by the Immigration Act of 1990.
55,000 permanent resident visas are to be made available annually on a random selection basis
and apportioned among the world's six geographic regions, with the largest numbers of visas
going to regions with lower rates of immigration to the U.S. A summary of the NVC's role in
the latest diversity program is enclosed. It was noted that the mailing-in period for the DV-98
program had just ended the day before the Commission's visit. 6,779,000 applications had been
received. Once the sorting of envelopes by geographic region and the assignment of numbers to
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each properly submitted envelope have been completed, a computer generated random selection
of 100,000 envelopes will be made. These will be pulled, opened, applications reviewed for
consistency with the formal parameters of the program, and formal notifications of the winners
will be mailed starting in June, including 'packet three' information listing the documents to be
presented at time of formal visa interview. The goal is to start formal interviewing of the DV-98
lottery winners no later than December 1997. According to the NVC, the vast majority of current
diversity immigrants come from abroad. In the initial phases of the program, it was thought that
many diversity immigrants were already in the U.S.
While the NVC can disqualify applications for not meeting the parameters established by
regulation (e.g. signed application, attachment of a photograph, a return address, etc.), it does not
make determinations on visa eligibility. That is left to the Department's consular officers and
Service's adjudicators to determine. According to NVC personnel, significant fraud has been
found overseas by consular officers wherein the applicants do not meet either the educational
(high school diploma) or work experience requirements of the statute. The comparison of the
photographs attached to the DV application with the applicant during the formal interview should
reduce instances of identification fraud. It was also noted that most consular officers
adjudicating diversity visa applications are not convinced as to the necessity of such an
immigration program.
Special Canadian Processing. As part of a pilot program, the NVC is processing all
applications for immigrant visas on behalf of the U.S. Consulate General at Montreal, Canada up
to the point of final interview. Beginning in May 1996 all immigrant visa processing in Canada
has been centralized at one foreign service post. The NVC requests all documents required by
regulation to be presented at the time of formal interview, schedules the date of the formal
interview on behalf of the Consulate General, and forwards the formal packet of completed
immigrant visa applications forms, supporting documents, and the approved immigrant visa
petitions. Based on any 'hits' from the computer lookout system, the NVC also runs all security
name check functions on behalf of the Consulate General Montreal, requests security advisory
opinions, if necessary, of the Department and the intelligence and law enforcement community
for any applicant whose name comes up during the mandatory computer review of the automated
lookout system, prior to forwarding the entire immigrant file to Montreal. Fingerprint cards are
taken by a contract operation in Canada (persons must present appropriate photo identification),
which sends completed fingerprint cards with photos attached directly to the FBI for processing.
The results are sent directly to the NVC by the FBI and included in the file forwarded to
Montreal.
The goal of the special Canadian project has been to provide a predictable process for all persons
applying for legal immigration and to reduce the number of instances wherein applicants fail to
show up with all their required documentation (and thereby the number of refusals under Section
221(g) of the INA). The review of the substance of the documents and the decision to grant or to
deny the immigrant visa still remains with the interviewing consular officer. The project has
reduced the workload at the U.S. consular operations in Canada by twenty-five percent.
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Public Inquiries. The NVC handles more than one thousand telephone inquiries daily. A
Microlog telephone answering system is used to provide general information on a variety of visa
subjects. If the recorded messages do not provide all the information needed by a caller, one of
seven information specialists (language qualified in various languages, including one specialist
who can competently respond to callers in ten different languages) will deal with the inquiries.
The specialists access the NVC database to provide the current status of all cases. According to
the contract with Statistica, calls requiring the personal attention of a specialist should be
answered within three minutes.
FBI Assistance. In order to improve the response time for FBI electronic name check from
overseas embassies and consulates, an FBI official works on site at the NVC. She has direct
computer access to the NCIC database and can receive fax copies of fingerprints from the
database system to compare with those mailed or faxed to NVC from overseas posts. This has
facilitated inquiries from consular officers about the possible match of applicants to lookout
records. Additionally, since February 1995, 168 'hits' have been discovered through the NCIC
system matching immigrant visa applicants with the records of persons who have outstanding
arrest warrants. In most instances, the immigrant visas were issued (since the applicants had still
not been convicted in a court of law and thus were not necessarily then ineligible for an
immigrant visa) and the FBI arrested the individuals upon arrival at U.S. ports-of-entry.
Facilities. The NVC is physically located in the commissary building of the former Pease Air
Force Base. The State Department did not have to pay for the structure, but did invest three
million dollars to renovate the building for usable office space. The result is an attractive federal
office building.
4
Clinton Presidential Records
Digital Records Marker
This is not a presidential record. This is used as an administrative
marker by the William J. Clinton Presidential Library Staff.
This marker identifies the place of a tabbed divider. Given our
digitization capabilities, we are sometimes unable to adequately
scan such dividers. The title from the original document is
indicated below.
Divider Title:
3
DRAFT
Dallas District Office Summary
January 21, 1997
Commissioners Present:
Shirley M. Hufstedler, Chair
Harold Ezell, Commissioner
Robert C. Hill, Commissioner
Warren R. Leiden, Commissioner
Nelson Merced, Commissioner
Staff Present:
Andrew Schoenholtz, Deputy Executive Director
Gregg Beyer, Senior Policy Analyst
Patricia Dunn, Senior Policy Analyst
Brett Endres, Policy Analyst
James Halmo, Senior Policy Analyst
David Levy, Senior Policy Analyst
LaVita Strickland, Legislative Analyst
Participants:
Arthur Strapp
District Director
Jorge Eisermann
Deputy District Director
Lynn Ligon
Executive Assistant
James Reynolds
District Counsel
Victor Johnston
Officer in Charge, Oklahoma City
Barbara Baker
Court Administrator, EOIR
Assistant District Directors
Sharon Clarke Management
Kim Odgen
Benefits (including Inspections, Records, & Information)
John Ramirez
Detention and Deportation
Neil Jacobs
Investigations
The Chair opened the meeting by explaining that the Commission had just visited the
Western Regional Office of INS and the Los Angeles District Office and we wanted to see the
Central Region and the Dallas District Office for a comparison. She explained that the
Commission was interested in the day to day operations, communication and relationship
between the District, the Region, and Headquarters.
Dallas District
The Dallas district is one of the largest districts and encompasses much of the state of
Texas and parts of Oklahoma with a population of approximately 11 million. Within the District
first line supervision for all programs and managers goes through the deputy director to the
district director. The divisional programs are for Management, Benefits, Detention &
Deportation, and Investigations.
Management
The Management division is relatively small with an annual budget of $1 million for the
district. They pointed out that during recent increases in resources at INS, operations divisions
were given a majority of the resources and assistance; the staffing and budget of management has
remained basically the same.
Benefits
The Benefits division, which includes Inspection, has grown over the past few years,
however their workload has grown at a rate much higher than the staffing levels. They currently
have 136 staff positions (64 in Adjudication and Naturalization, 56 at the Airport, and 15 in
Records and Information) with a budget of almost $2 million. Last year they inspected 1.5
million people at the Dallas/Ft. Worth Airport. Approximately 2/3 were citizens and 1/3 aliens. of
which 2000 were refused admission and 200 were referred for exclusion. The Naturalization
workload has grown enormously. In 1994 approximately 5000 applications were received per
month. As of last month 40,000 applications were pending.
Detention & Deportation
The Dallas D&D unit is composed of 65 employees and covers a jurisdiction of 123
counties in Texas and has a sub-office for all of Oklahoma. The docket for the Dallas District is
18,000 cases (both detained and non-detained). Detention beds are utilized at Service Processing
Centers [SPC's] in El Paso and Port Isabel, contract facilities in Houston and Laredo, and the
Federal Detention Center in Oakdale. Additionally their are 5 BOP federal facilities within the
Dallas district and one contract facility that also house criminal aliens. We were also told that 3
deportation offices are committed to an active abscondee team to get orders and effectuate
removal of non-detained aliens. They estimate that they successfully complete 30 of these cases
per month.
Investigations
Investigations activities are separated into 6 teams at the Dallas district. Two employer
sanctions units, and one unit each for criminal aliens, anti-smuggling, Dallas county jail, and
probation/parole. The Investigations team is highest in the Central Region and third nationally in
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case completions.
New Legislation
The question was raised on how the District is ready to handle the legislation enacted in
1996, that will go into effect on April 1, 1997. The participants responded that they were
apprehensive based on a review of statute and interim regulations. They feel the changes are the
most dramatic the agency has faced, even more than IRCA in 1986. Though some of the
programs, such as inspections, may be ready, the others that inspections might impact are not.
For example, if inspections identifies more people to be detained, Detention and Deportation
does not have the bed space to hold them.
Courts
The District Counsels Office has 6 attorneys and 3 clerks to handle the docket of cases.
There are 3 full time Immigration Judges and one Judge who splits his time between Dallas and
Houston. Video teleconferencing is being used in non-contested cases with no relief available.
(See Site Visit report to Immigration Court)
Issues
Organizational Structure
The Commissioners raised the question of whether the organizational structure was
working here because of the concerns that were expressed in the Western Region and asked for
suggestions for improving the system if problems existed. Participants suggested that there is a
lack of communication between "the two sides of the house" Programs and Field Operations at
Headquarters, and things would be better organized if they were under one command. This would
make reporting lines more direct. One participant commented that the military has a lot to offer
in the chain of command concept.
The other main issue that came up was the idea of splitting the enforcement and service
functions of INS. There were strong feelings on both sides of whether they could stay together
(under certain circumstances), or should be split apart. One suggestion of how they could be kept
together included combining Inspections with the Border Patrol.
A related problem has to do with the career paths at INS, which have provided an
ongoing in-house morale problem. For many people in both Service and Enforcement there is no
clear career path that they can take up to management positions. It is also difficult to cross-over
from one side to the other during their career, and training of managers has not been available.
(However, see other summary on INS Leadership Center which began training last year) A
further complaint that Service side employees raise is that employees working in INS
enforcement are given better opportunities and benefits. Examples are that enforcement
3
personnel are able to be paid overtime, generally are at a higher civil service grade and have law
enforcement retirement plans, while the service side employees do not.
Budget
On the budget process, they felt that they had little to no input on the appropriations that
they received. Their feeling was that Headquarters did not ask them what it was they needed to
do their job, but rather simply gave them something to do their job.
On user fee accounts, they estimated that they only received 23 cents on the dollar for
what was collected by the fees for use by the services. Most of the funds go to the Service Center
operations. The District feels that more of the fee revenue should be used to facilitate the service
that the applicant is actually paying for.
Hiring
Concerns were raised over hiring practices and the fact that program directors could not
be hired at the field level but rather had to be hired by Headquarters for work in the District.
Approval at Headquarters was often slow or denied without proper reasoning. The District also
felt that since they would be working with the individual they would know better than
Headquarters who would fit in at the District.
Concern was also expressed about the usage of temporary positions. They are hard to fill
since people want real jobs with real benefits. Once hired these persons continue to look for
permanent positions elsewhere. No career track exists for temporary hires. It was argued at
Headquarters that much of the work being performed was temporary in nature and would be
performed subsequently at the Service Centers. However it was also stated that the same
argument has been heard for the last 10 years.
A last concern that was raised was the use of contractors. Contracting work was not being
done at the district office at this time because they felt there was a lack accountability for
contractors. Concerns were that contractors only do what is written in the contract and contracts
are not written specific enough for any decision making or adjudicating. Most of their work is
further reviewed anyway. A suggestion was raised that contractors might be used in bag and
baggage cases but was rejected because of the certain way detained aliens needed to be handled
and the requirements of investigations.
4
Meeting with INS Central Region Office Managers, Dallas, Texas
January 21, 1997
Commissioners Present:
Shirley M. Hufstedler, Chair
Harold Ezell, Commissioner
Robert C. Hill, Commissioner
Warren R. Leiden, Commissioner
Nelson Merced, Commissioner
Bruce Morrison, Commissioner
Staff Present:
Andrew Schoenholtz, Deputy Executive Director
Gregg Beyer, Senior Policy Analyst
Patricia Dunn, Senior Policy Analyst
Brett Endres, Policy Analyst
James Halmo, Senior Policy Analyst
David Levy, Senior Policy Analyst
Carolyn Piccotti, Senior Policy Analyst
LaVita Strickland, Legislative Analyst
Participants:
Dwayne Peterson, Deputy Regional Director
Curtis Aljets, Associate Regional Director
James Cole, Special Assistant to the Regional Director
David Aguilar, Assistant Regional Director, Border Patrol
James Bailey, Assistant Regional Director, Intelligence
Gail David, Assistant Regional Director, Detention and Deportation
Brian Joyce, Acting Assistant Regional Director, Investigations
Homer McCain, Assistant Regional Director, Inspections
David Roark, Assistant Regional Director, Adjudication, Nationality and Records
Keith Roemeling, Director, Planning, Analysis and Evaluation
Tomas Zuniga, Acting Assistant Director, Congressional and Public Affairs
Barbara Blessing, Director, INS Administrative Center
The Chair, after opening the January 21, 1997 meeting by noting the Commission's history,
stated that the Commission was looking for a free exchange of ideas and information on the work
performed by the Regional Office, how it was being accomplished, and what more might be
needed to accomplish what should be done. She emphasized that no comments made by the
1
participants would be attributed to them in any formal reports prepared by the Commission.
The Deputy Regional Director, acting on behalf of his immediate supervisor, welcomed the
Commissioners and laid out briefly the role of the Regional Office which has a staff of some 60
employees, relatively the same staffing level as 11 years ago. Each of the department heads
addressed the responsibilities of their units and their current activities. Most noted that they
perform principally support and liaison responsibilities between the field (seven district offices)
and headquarters and do not exercise direct line authority over the respective district operations.
On the Inspections side, for example, it was noted that the Region (covering 18 States) has
responsibility for 81 ports of entry (including three preclearance in Canada) and for providing the
resources (funding, personnel, and equipment) for the field operations to do its job. The Assistant
Director also monitors the work performance of the districts for the Regional Director. The
Regional Inspections Office communicates with headquarters (with such communication equally
divided between Field Operations and Programs) on resource allocation issues. On the
Intelligence side, it was noted that, with a small staff of three, the Regional Office has produced
4,000 intelligence reports, many analyzing the southwest border situation. This has been
accomplished without borrowing resources from other units. The Assistant Director stated that
current budget allocations may deal with the current situation but may not take into account the
projected movement of aliens into the U.S. over the next five years. He also noted that INS still
is not considered a part of the intelligence community as defined by a 1949 executive order
(which was last updated in 1994).
Organizational Structure. While each of the participants briefly outlined the staffing pattern of
their operations, subsequent discussion focused on INS headquarters and the Central Region's
relationship to it. The participating officers viewed themselves as intermediaries between
headquarters and the field. Should there be, for example, a major law enforcement exercise, the
regional officers try to ensure that all components of the field operations are notified and
involved. As one participant noted, there is a communications gap between field operations and
programs at headquarters and the region tries to fill that gap, acting as an ombudsman for the
field.
The Executive Associate Commissioner [EAC] level at headquarters was referred to as a four
headed monster. Although Field Operations has direct line authority to the Regional Offices,
communications and taskings to the Region can come from any of the four EAC offices. It was
stated that multiple taskings from different EAC offices (even though they may not have line
authority) and short time fuses have negatively impacted the discipline expected of the functional
process.
Participants proposed that the Regional Offices report to the Deputy Commissioner as had
occurred previously. One participant noted that Headquarters senior managers did not want to
consider such a proposal. "There is an underlying concern that the regional directors will get too
strong." However, the regional participants considered the EAC just another level of
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management with a large attendant staff. If the old system was to be criticized, the participants
felt it was not the organizational structure itself which was to blame but, rather, the lack of
performance by the headquarters incumbents who, at the time, were to be managers responsible
and accountable for their actions. "It is a performance issue, not a structural one." "Management
of personnel at the top was the problem." It was noted that total quality management [TQM] was
installed previously as a method to bring more accountability into the Service. This called for a
simple structure. However, according to one participant, no vestige of TQM exists today in the
organization.
According to the participants, Field Operations and Programs used to be the same entity.
However, the Program element was created and moved away from the chain of command. The
Program Office was designed to work on developing programmatic functions and to then hand
off responsibility for implementation to Field Operations. However, according to one
participant, 98 percent of the Service's resources falls under the EAC for Field Operations and
only 2 percent is shared by the other three EACs. The Service employee wondered aloud if that
was the best management structure.
The participants complained that the Service had been studied to death -- far too many studies
had been carried out with no action resulting from the formal reviews. "They came down and
said the system is not broken, but change it anyway." (INS Dallas to provide at least summary
copies of the previous internal studies for the CIR Commissioners to read.)
Border Patrol. The Assistant Director for the Border Patrol, who is new to the Region, stated
that he spends a great deal of time supporting and listening to the field's concerns. He noted that
attempted illegal crossing within the Central Region have increased significantly, surpassing the
totals from the Western Region. The Brownsville area has become a primary focus over the past
months of those desiring to enter illegally. He communicates daily with the Region's seven
Sector Chiefs and their deputies on operational matters and is involved extensively in the
preplanning of special operations. He felt that communications with headquarters had improved
markedly since his arrival to Dallas. While he has general oversight responsibility, he stated that
he does not have direct line authority over the seven Sector Chiefs in the Central Region (five on
the southern and two on the northern border).
(Note: Subsequent to the meeting, the Assistant Director stated that the Region's seven Sector
Chiefs report to the Regional Director who is responsible for writing their individual annual civil
service performance reports. The Assistant Regional Director provides input to the final written
review. He also has authority and budgetary control for some matters over the Sectors, as
delegated by the Regional Director, particularly on special operations which require close
coordination of various offices at the regional level. The District Offices are involved more in
service operations and are not involved in border patrol operations, with the exception of
detention and deportation functions where coordination is necessarily close. As a staff person, the
Assistant Director's input into the budget process was termed as being limited. He noted that the
3
FY 97 budget allocated many personnel resources down to the station level. For example, 52 new
positions were assigned directly to the Del Rio Station, even though the Sector Chief felt he
should have some discretionary control over the stationing of personnel assigned to him.
Headquarters concluded that the detailed assignment decision, a departure from the past, was in
keeping with congressional intent. As regards physical resources, the Regional Director does
have discretionary authority to move equipment around the Region.)
Budget. The participants stated that the Services's budget is influenced significantly by user fees.
Taxpayers and those paying the user fees expect to receive improved service as a result of the
surcharges. However, it was noted that most of the funds collected are not returned to the source.
The Central Region receives 23 cents on every dollar collected locally through user fees.
Complaints have been received that those paying user fees are not getting their money's worth of
service.
It was also stated that the Service has received substantial funding over the past couple of years
and may be growing faster than can be planned for adequately. It takes almost one year to hire,
train, and properly bring a new employee on board. The modular approach was recommended,
wherein all of the support required for new employees (physical equipment, support services,
etc.) would be considered budget wise as part of a total package when adding personnel to the
Service's payroll. Not to do so was considered mismanaged growth. It was felt that the Service
was moving in this direction, particularly with regard to the Border Patrol, but that more needed
to be done. (Some special equipment and vehicles necessary to carry out the Border Patrol's
mission were considered lacking.)
In response to a question about the top-down budget approach, it was opined that all of the
budget information currently provided to headquarters may be a waste of time since the budget
currently seems to be based solely on increases and decreases of percentage allocation to ongoing
activities. The purpose for some activities is not examined. However, it was opined that if a
management by objective approach should be adopted, a number of current structural
arrangements within the Service would be questioned.
The participants felt that the Regional Offices do not have much input into the budget process;
additionally, they must wait almost until the third quarter of the fiscal year before obtaining a
final budget calculation on what can be expended for the year. The participants stated that the
Central Region cannot be proactive unless it has control of its own resources.
Detention and Removal Issues. Increasing the number of aliens actually removed from the U.S.
is one of the Commissioner's primary goals for FY 97. The implementation of this goal
necessarily impacts the ongoing issues of privatization of some detention services as well as
expanded agreements with local detention facilities. Mexican aliens stay on the average 3-10
days before being removed to Mexico; non-Mexican aliens stay on the average 7-45 days. As of
4
December 1996, there were 120 'lifers,' aliens who are subject to mandatory detention and may
not be released for statutory reasons, and for whom travel documents have not yet been
forthcoming. Most had committed aggravated felonies after entry to the U.S. (Non-Mariel
Cubans, Vietnamese, and persons from the former Soviet Union comprise the majority of such
'lifers'. Problems were also cited in obtaining travel documents for detained Nigerians.)
According tot he participants, another problem impacting on the Region's ability to remove
aliens is the lack of an adequate number of vehicles. Additionally, it was noted that there
continues to exist an ongoing need to train personnel. Although training is advocated by
managers, the participants noted the difficulty in balancing training and the time expended on
training against the dilemma of accomplishing necessary work.
Funding for FY 96 permitted 2,000 beds and this has been increased to 3,100 for FY 97. The
level of actual bed space in the Central Region has not yet reached the level for which funding
has been appropriated, since time is required to actually both increase and improve the holding
facilities. The Assistant Director for Detention and Deportation provided the Commissioners
with a detailed overview of the number of beds available in the Region and the current status at
the various facilities for increasing these numbers. It was stated that the Region, while focusing
on increasing the quantity of bed space, is also upgrading the quality of its facilities for housing
aliens to be detained and subsequently removed from the U.S. The Region has five major
facilities for which it has contract oversight and it also has intra governmental agreements with
local jails for detention and related services (food, laundry, etc.). However, with regard to new
projected detention space, the Assistant Director stated that there exists some degree of
disagreement between using an expanded intra governmental agreement versus contract
operations. She was not certain how the Service will conduct an analysis of its actual needs. This
comes at a time when the new detention requirements of the Illegal Immigration and Reform and
Immigrant Responsibility Act of 1996 will greatly impact the region. In her estimation, very few
aliens will not be subject to detention under the new law. However, at this point, it is not possible
to guess what will be the actual detention requirements.
The Chair expressed her appreciation for comments made by the participants and welcomed any
additional written comments that they might wish to make.
5
DRAFT
Meeting with INS Administrative Center Officials, Dallas, Texas
January 21, 1997
Commissioners Present:
Shirley M. Hufstedler, Chair
Harold Ezell, Commissioner
Robert C. Hill, Commissioner
Warren R. Leiden, Commissioner
Nelson Merced, Commissioner
Bruce Morrison, Commissioner
Staff Present:
Andrew Schoenholtz, Deputy Executive Director
Gregg Beyer, Senior Policy Analyst
James Halmo, Senior Policy Analyst
LaVita Strickland, Policy Analyst
Participants:
Barbara Blessing, Director and various senior Center staff members
Reorganization. The meeting with the Administrative Center Director and her key staff was a
continuation of the earlier meeting with the Regional Office managers. The Center Director
stated that the last battle in the current reorganization effort by the Service involves the authority
over the Administrative Centers. As of October 1996, for example, the Administrative Center in
Dallas no longer has administrative responsibilities over part of the southeastern section of the
U.S., a situation to which the Eastern Regional Director had objected (since administrative
functions for the region were divided between the administrative centers in Vermont and Texas).
By April of this year the Administrative Centers are to be under the direction of the Regional
Directors rather than reporting to Washington headquarters. This is in keeping with the 1995
Justice Management Division's formal recommendations. However, realistically, July 1 may be
the earliest according to the Center Director and, for ease of financial transfer, Oct 1 (coinciding
with the beginning of the fiscal year) makes more logical sense since DOJ and OMB must still
give final approval to the transfer of responsibilities.
The Center Director stated that the regional managers will be happier controlling the
administrative side of the operations. What functions have to be performed with some regional
office and what functions do not require a regional centralized operations? The Center Director
1
opined that none of the administrative functions to be transferred to the control of the regions
needed to be transferred. In fact, she said, in order to facilitate the Regional Directors'
accountability for getting their job done, more centralization of the administrative functions
could be accomplished. Part of the current debate on reorganization within the service involves
the establishment of a new consolidated finance center, to be located either at Dallas, TX or
Burlington, VT. In the hiring initiative, for example, one Center can ensure security background
checks are done, personal suitability is reviewed, etc. After starting up its personnel operations,
the Twins Cities operation in Minnesota has been very efficient in bringing on board personnel
through an expedited hiring process. She added that the Service needs to look more at long range
planning; there are too many little boxes and more uniformity throughout the Service is called
for. She also noted that some INS functions -- asylum and the Service Centers -- do not report to
the regions but to headquarters.
Staffing. The Center Director likened the Administrative Center to the combination of a bank,
mortgage company, maintenance firm, and hiring agency -- a very diverse operation. She noted
that there has never been more than 600 persons total in the Service's administrative centers.
However, as the size of the Central Region's structure to be supported administratively has
grown, from 4,000 to 6,200 personnel, staffing for the administrative support function has
remained the same. In 1992 the Dallas Administrative Center had 65 employees; it now has 47
on the staff. The participants noted that it is most difficult to continue operating in a holding
pattern; headquarters needs to reach a final decision on implementing the reorganization plan.
No new permanent hiring at the Administrative Centers is permitted pending the new
realignment. Unfortunately, this has resulted in far too many positions being filled on a
temporary basis. Half of the staff of 47 are temporary hires. "Every temp is looking for a job."
While there is some disagreement on the desirability of actually transferring the Administrative
Centers to the Regional Offices, some administrative personnel believe this is the only way to
end the hiring freeze for Center personnel and to obtain additional personnel resources. They felt
any decision was better than no decision and continued limbo. It was also opined that policy
development on personnel matters was being carried out on an ad hoc basis at headquarters. It
was stated that it is difficult for senior players to focus on personnel policy when they are
involved actively in too many daily operational issues.
Budget. The Region has a budget of some 50-60 million dollars while the Administrative
Center's budget is less than half a million. The Center Director stated that the Service needs to
take a stronger look at the modular approach in the budget process. Thus, for example, if a
soldier is added to the military ranks, he would need a vest, a weapon, a vehicle, etc. These items
would have to be budgeted for; the same should be true when adding more personnel to the
Service. She mentioned that enforcement, detention and deportation, and the trial attorneys are
already using this budgetary approach. The Center Director noted, however, that much more
needs to be done within the Service in expanding on this type of budgetary approach and even to
expand it to include modular support for all activities within priority functions such as
2
naturalization, removals, asylum, and worksite enforcement.
Operating Procedures. Formal operating procedures are contained in the Administrative
Manual, which is in need of major revision. However, the employees' union will not pass on it. It
was opined that, looking at past practices, the revisions should have been done piecemeal rather
than as one major revision. This would have permitted by now the adoption of a significant
number of noncontentious revisions.
3
Draft
Staff Report on January 22 Meeting With INS Leadership Development Center Director
Participants
Jennifer R. Lee, Director of the INS Leadership Development Center
CIR Staff: Pat Dunn, Brett Endres, David Levy, and Carolyn Piccotti
The meeting opened with introductions and an explanation of the Commission's mandate and
purpose in requesting the meeting. Ms. Lee welcomed us to the Center and provided us with a
tour of the facility.
History of Center
Ms. Lee said that the Center was established as the national training center for INS managers and
supervisors. The Center opened in the middle of fiscal year 1996. The impetus for the Center
came from INS' recent rapid growth Ms. Lee said that prior to the establishment of the Center,
supervisory training was spotty. Many INS supervisors and managers had gone years without any
training. Indeed, prior to the opening of the Center, there were over 600 supervisors who had
never been trained. Now each supervisors must attend the training during the first year as a
supervisor/manager. In the first six months of operation, 861 INS managers and supervisors
completed one-week training classes. In order to participate in the Center's training, one must
already be a supervisor or manager.
Organization and Staff
The Center's staff of nine is supervised by Director Lee who reports to the INS Director of
Training in Headquarters. The training function is organizationally under the EAC for
Management.
Development of Curriculum
The course curriculum was developed by Director Lee prior to the opening of the Center.
Consultations were held with various levels of INS management, focus groups and a citizens
advisory panel. All courses were developed by staff in the Dallas Leadership Development
Center. The same curriculum is used for all participants, but additional specialized training, i.e.
in labor relations, is added if needed.
Current Course Curriculum
The Center currently offers: basic supervision; advanced supervision; basic management;
advanced management; balanced leadership; and impact leadership. Kepner-Tregoe problem
solving classes have also been scheduled to begin in February 1997. All classes are conducted by
one staff member and one contract consultant. All INS supervisors receive the same training
regardless of what part of the agency they work in. There are modules in the courses to address
specialized needs. For each class, students are selected from various organizational areas, i.e.
enforcement, benefits etc. Ms. Lee said that there has been good feedback on mixing the
students in this manner. Each of the basic supervisory classes also has an experienced INS
supervisor as a mentor. The Center's classes have been accredited by the Council of Education,
with students receiving three semester hours credit. Evaluation of the courses is done through
subsequent feedback from participants, their peers, supervisors and subordinates.
Regional Training
Ms. Lee said that some training is done on the Regional and District level, however, she does not
have any information on training given at those levels.
Although the Center's training classes have been open only to INS personnel, Ms. Lee indicated
that expanding their services to include other Department of Justice agencies may be a future
consideration.
Attached is some background and statistics on those who have completed Leadership
Development Center courses.
2
THE LEADERSHIP DEVELOPMENT CENTER
214-350-2998
In the SIX months of FY 1996 that the new INS Leadership Development
Center was open, it graduated 861 students from its series of five
supervisory and managerial courses. They have seventy classes planned for
FY 1997 which are filling up fast! The class descriptions are listed below
and the schedule for the next few months is on the reverse.
Basic Supervision- This class must be taken by all supervisors within the first
year of appointment to a supervisory position. Subjects included are
diversity, preventing sexual harassment, labor relations, discipline,
performance counseling, communication, motivating others, customer civil
rights, delegating, developing effective teams, motivating others and stress
management.
Advanced Supervision- This is offered for people who have been supervisors
for one year or more and serves as a refresher. It includes creating an
open/honest workplace, negotiating, resolving conflicts, public speaking,
administering leave, dealing with the media, handling anger and managing the
stress of change.
Basic Management- This course, designed for mid-level managers, covers
self-awareness, value systems, creating a vision, coaching, managing
resources, disciplinary actions, MSPB processes, the federal budget process
and giving/receiving feedback.
Advanced Management- This is designed for employees who have been
managers for a number of years. The class focuses on stewardship.
Stewardship of self, resources, change, teams and systems. In addition,
participants learn practical techniques for dealing with stress, examining
weaknesses in systems or processes, interviewing job candidates and being
Leadership Development Center
Immigration & Naturalization Service
interviewed, dealing with sexual harassment, group decision making,
managing time and building a budget.
Balanced Leadership- This is a new course in FY 1997 for top level
managers. Its focus is on integrity, ethics, diversity, strategic thinking,
developing your subordinates to be tomorrow's leaders, managing meetings
and practical strategies to promote excellent staff work. The class is
extremely interactive and promotes the concept of students learning from
each other through discussion and readings.
Impact Leadership- Another course option for top level managers. The
course includes personal values, organizational values, team building, video
presentations, and a study of the phases of organizations. In addition, the
participants complete several assessment instruments prior to the class
which are discussed with them individually by a psychologist during the
class.
Kepner-Tregoe Problem Solving- This course on problem analysis and
decision making is recommended for all supervisors and analysts who have a
need to develop their process skills to help clarify problems and sort out
priorities in complex issues. It has been offered a number of times in INS
during the last two years but is a new course offering for the Leadership
Development Center.
Basic Supervision
Advanced Supervision
Basic Management
March 3-7
March 3-7
February 10-14
March 24-28
March 17-21
March 10-14
April 7-11
April 7-11
April 14-18
April 28-May 2
May 5-9
April 21-25
May 12-16
May 19-23
May 5-9
June 23-27
June 16-20
June 2-6
Advanced Management
Balanced Leadership
Impact Leadership
January 27-31
March 10-14
June 9-13
February 24-28
April 21-25
September 22-26
March 17-21
June 2-6
April 14-18
July 21-25
June 16-20
Kepner-Tregoe Problem Solving: February 19-21 and May 28-30.
RCV BY:
; 1-22-97 : 8:26AM ;
214 767-
2027768635:# 2
REPORT OF ALUMNI
LEADERSHIP DEVELOPMENT CENTER
STUDENTS BY JOB SERIES
THROUGH 09/30/96
Job Series
Total Number
Security Officers
4
Personnelists
14
Training Officers
1
EEO Officers
2
Administrative Officers
19
Supervisory Clerks
13
Supervisory Mail and File
5
Supervisory Secretarys
3
Supervisory Computer Specialists
8
Supervisory Management Analysts
25
Supervisory Telecommunications
1
Supervisory Budget and Finance
14
Supervisory Electronic Technicians
7
Supervisory Attorneys
23
Supervisory Asylum Officers
34
Supervisory Paralegals
4
Supervisory Applications Clerks
21
Supervisory Public Affairs
2
Supervisory Procurement
8
Supervisory Printing Officers
1
Supervisory Food Service
3
Supervisory Immigration Inspectors/Examiners
298
Supervisory Detention Enforcement Officers
53
Officers In Charge
1
Supervisory Special Agents
95
Supervisory Border Patrol Agents
196
Supervisory Border Patrol Support
6
TOTAL STUDENTS
861
RCV BY:
: 1-22-97 : 8:26AM :
214 767-
2027768635:# 3
REPORT OF ALUMNI
LEADERSHIP DEVELOPMENT CENTER
THROUGH 09/30/96
Duty
Total Number
HQ/Region
Location
Of Alumni
Headquarters
Glynco BP
10
Glynco (Other)
17
Headquarters
70
Total Headquarters
97
Service Centers
Northern SC
9
Texas SC
13
Vermont SC
11
California SC
1
Total Service Centers
34
Asylum Offices
Arlington
4
Chicago
2
Houston
2
Los Angeles
8
Miami
8
Newark
6
New York City
9
San Francisco
1.)
Total Asylum Offices
41
Central Region
Admin Cntr., Dallas
10
Admin Cntr.. Twin Cities
4
Chicago District Office
9
Central Regional Office
10
Dallas DO
22
Denver DO
9
Del Rio BPSH
9
El Paso DO
38
El Paso BPSH
17
Grand Forks BPSH
5
Harlingen DO
26
RCV BY:
: 1-22-97 : 8:26AM :
214 707-
20277685351# 4
Duty
Total Number
HO/Region
Location
of Alumni
Central Region
Houston DO
13
Havre BPSH
4
Kansas City DO
8
Laredo BPSH
33
Marfa BPSH
10
McAllen BPSH
17
Omaha DO
2
San Antonio DO
30
St. Paul DO
6
Total Central Region
282
Eastern Region
Admin Cntr., Burlington
7
Atlanta DO
9
Baltimore DO
5
Boston DO
5
Buffalo DO
5
Cleveland DO
9
Detroit BO
9
Eastern Regional Offi ce
8
Houlton BPSH
4
Miami DO
33
Miami BPSH
8
Newark DO
7
New Orleans BPSH
5
New Orleans DO
7
New York City DO
40
Philadelphia DO
4
Portland DO
6
Ramey BPSH
3
San Juan DO
4
Swanton BPSH
3
Washington DO
5
Total Eastern Region
186
nov DI.
1017
2021 2
Duty
Total Number
HQ/Region
Location
of Alumnj
Foreign Offices
Mexico City DO
10
Rome DO
1
Total Foreign Offices
3
Western Region
Admin Cntr., Laguna Nigel
6
Anchorage DO
3
Blaine BPSH
in
El Centro BPSH
7
Honolutu DO
12
Los Angeles DO
23
Phoenix DO
9
Portland DO
7
San Diego BPSH
58
Seattle DO
4
San Francisco DO
14
San Diego DO
45
Spokane BPSH
2
Tucson BPSH
14
Western Regional Office
4
Yuma BPSH
7
Total Western Region
218
TOTAL EMPLOYEES
861
TOTAL P.05
DRAFT
Staff Report on January 22 Dallas Meeting with DOL Regional Inspector General and
ALC Certifying Officer
Participants
Charlene Giles, USDOL Regional Alien Labor Certifying Officer
Richard Lowe, USDOL Assistant Regional Inspector General for Audit
John Riggs, USDOL Regional Inspector General for Audit
Commissioners Participating
Chair Hufstedler, Commissioners Hill, Leiden, Merced and Morrison
Staff Participating
Andy Schoenholtz, Gregg Beyer, Pat Dunn, Brett Endres, Jim Halmo, David Levy, and Carolyn
Piccotti
The meeting opened with introductions and an explanation of the Commission's mandate and
purpose in requesting this meeting. Mr. Riggs made a presentation detailing his office's findings
in a nationwide audit of DOL's foreign labor certification programs. Mr. Riggs stated that in
1993 the cost of these programs was $50 million, of which $45 million were grants to the States.
Audit Presentation
Audit Objectives
To determine whether DOL is effectively administering the employment-based labor
certification and H-1B temporary Labor Condition Application programs and to
determine the impact the programs have on employers and U.S. workers.
Subobjectives
1. What are the impact and costs of the certification process on employers and U.S.
workers?
2. Are U.S. workers being protected by DOL regulations and policies?
3. Do employers have the required documentation for the permanent and LCA
applications?
4. How long did the aliens work for the employers and under what circumstances?
1
Scope and Methodology
The audit consisted of a nationwide statistical sample of the certification system including
recruitment. The fieldwork included ETA Regional Offices ; INS Service Centers at
Lincoln, Laguna Nigel and St. Albans; State Employment Security Agencies (SESA) in
16 States; and employers' business locations in those 16 States. On-site visits to
employers' business were conducted where records were examined and interviews
conducted.
Audit Period
Samples of permanent applications and LCAs selected for audit were chosen from
applications that were approved in the ETA Regional Offices during the period 10/1/92
through 9/30/93. With respect to SESA job orders filed for permanent applications,
SESA applicant referrals to the job openings, and SESA placements relating to these
referrals, the 6-month period 7/1/94 through 12/31/94 was used. This period was used
because of the possibility that information may not have been available on the SESA
computer system for the earlier audit period.
Sampling Plan
The universe used included 24,403 permanent applications and 62,188 LCAs approved by
ETA during FY 1993. In order for the sampling unit to be selected, INS had to have
approved a petition for the job for which the application was submitted. A question was
raised as to the status of petitions that were denied or those that were withdrawn after
submission. Mr. Riggs said that it had been determined that these cases would be
excluded from the audit. Further, for the permanent program, the alien must have already
adjusted to permanent resident status. One of the problems noted by Mr. Riggs is that
there is no tie in between INS and DOL records with respect to the H-1B program. In the
permanent system, records can be cross-checked. The actual sample size consisted of 600
cases involving permanent employment and 720 LCA. The States selected for sampling
were:
Permanent and LCAs
LCAs only
Permanent only
Wisconsin
New Jersey
Missouri
Washington
Texas
New York
Minnesota
North Carolina
Massachusetts
California
Georgia
Indiana
Pennsylvania
Florida
Connecticut
Illinois
2
Audit Results
The audit report reflected the following conclusions with respect to the Permanent
Labor Program:
1. The required labor market test is not designed to survey the labor pool available at the
time the alien actually adjusts to permanent resident status.
2. Despite a costly, time-consuming recruitment process, the required labor market test
did not result in the hiring of U.S. workers over foreign labor.
3. Virtually all aliens (99%) who eventually obtained permanent resident status were in
the U.S. at the time of application; three-quarters were already working for the
petitioning employer.
4. Eleven percent of the PLC aliens never worked for the sponsoring employer after
adjusting to permanent status. Of those who worked for the employer after adjusting
status, one-third left employment within 1 year of adjusting status.
With respect to the Labor Condition Application (LCA) Program the primary
conclusions were:
1. The LCA program is being stretched beyond its intent of providing employers with
access to the best and brightest in specialty occupations (a term used by some
advocates) to make the employers competitive in the global economy.
2. There is no certainty that U.S. workers' wages are protected by the LCA program's
requirement that employers pay aliens the higher of the prevailing wage or actual
wage paid to their employees who are similarly employed. (In seventy-five percent of
the cases the employer could not adequately document, as required, that the LCA wage
was the correct wage. Also, some were paid as independent contractors.)
Additional Statistical Results
1. On average, aliens will not become a permanent resident for approximately I 1/2 years
after the employer files the alien labor certification application.
2. U.S. workers were hired in .02 percent of the referrals made by the SESA's in response
to job orders under the permanent labor certification program. (Five placements out of
28,682 applicants referred to 10,631 job orders.)
Recommendations of the Inspector General
1. Elimination of DOL's Permanent Labor Certification and Labor Condition
Application programs as they currently exist.
2. Establishment of a new program to fulfill Congress' intent, at the same time correcting
the deficiencies identified in the audit.
3
3. If DOL has a role in the redesigned program, ensure DOL's costs are fully recovered
by charging user fees to the employers who benefit from the programs.
Audit Follow-up
Commissioner Morrison asked what DOL was doing with the audit findings.
Ms. Giles said that she had been coordinator of a Departmental Task Force established to
redesign the system. That project had been canceled after extensive work had been done, but,
prior to the issuance of recommendations. She said that ETA was currently engaged in a
reengineering of the system, largely as a result of the Inspector General's report. Some
Congressional staff, including Senator Kennedy's office, have been briefed on the audit.
Effective 10/21/96, a General Administration Letter was issued to the SESAs with the intent of
increasing the efficiency of the system. Among the items addressed were unduly restrictive job
requirements, reduction in recruitment requests, notice of findings extensions, and limited review
processing. For permanent labor certifications, employers will be required to document that the
job existed and was previously filled at the same requirements before the alien was hired.
Ms. Giles that the new procedures will greatly expedite the SESA processing, and initially create
a huge workload for DOL. Eventually, the entire process should be greatly expedited. She said
that there should be a great reduction in the referral of U.S. workers to sham jobs. Through
training and bi-weekly conference calls DOL is attempting to increase consistency throughout the
Regions.
Ms. Giles also said that DOL is now requesting SESAs to screen job applicants strictly against
job orders. Previously, the SESA had more flexibility in accepting experience in lieu of
education.
H-1B Program
In discussing the H-1B program Ms. Giles pointed out that DOL has no authority to reject
applications except for obvious inaccuracies. She said that they were now looking more closely
at wage rates to see if the rate being paid obviously inaccurate.
Commissioner Morrison asked if an LCA can be rejected for an occupation that is obviously not
a specialty occupation. Ms. Giles said that she had no authority to reject an LCA for that reason.
In response to a question, Mr. Riggs said that two of the biggest issues with respect to H-1B is
the need to strengthen the definition of specialty occupation and to make H-1B employment
project specific. The positions should be truly temporary and in addition to the firm's actual
permanent positions.
4
Permanent Program Issues
In response to a question, Mr. Riggs said that, in his opinion, the biggest issues in the permanent
employment system were:
1. The current labor market test is a waste.
2. The system is alien rather than employer driven.
3. There is a short-term attachment to sponsoring employers after adjustment of status.
4. Anecdotal information indicates that the "best and the brightest" argument used by
some advocates in pressing for an international labor market test is not sustained by the
facts.
Ms. Hufstedler asked Mr. Riggs if the skill levels of those who adjusted to permanent status had
been examined in the audit. Mr. Riggs said they had not, but that information could be extracted
from the data.
Additionally, he said, it appears that whatever regulatory efforts were instituted, employers will
find a way to bring on board the person they want to hire, who is usually already filling the job.
It was argued that there must be a labor market test before the alien is brought on board.
General Recommendations
Mr. Riggs said that to make the system legitimate, real recruitment must take place before the
alien is on board.
Ms. Giles said that regulations need to be completely rewritten. She has been told that such a
revision of the regulations is not likely. She said that ETA gives no importance to this program
and little resources. This would have to change.
Commissioner Morrison commented that the number of jobs involved in these programs is not
really big, and that this is not a major problem when compared to family-based immigration.
Commissioner Hill asked Ms. Giles the following questions for later response because of time
constraints:
1. Has the Region suffered from dramatic cutbacks in funding for the SESAs?
2. Could DOL assume the functions of the SESA if the SESA role was eliminated?
3. Could DOL take over the INS role in employment-based petitions?
5
United States Commission on Immigration Reform
Dallas site visit:
Management Team Staff Summary Report
Working Lunch with Private Practitioners
January 22, 1997
Commissioners
Shirley M. Hufstedler, Chair
Present:
Robert C. Hill, Commissioner
Nelson Merced, Commissioner
Bruce Morrison, Commissioner
Richard Estrada, Commissioner
Practitioners:
Richard Fernandez, Esquire, Fernandez & Fernandez
Richard A. Gump, Esquire, Law Offices of Richard A. Gump, Jr.
Elise Healy, Esquire, Tidwell Swaim & Associates, P.C.
Michelle Saenz-Rodriguez, Esquire, private firm
Vanna Slaughter, Accredited Representative, Catholic Charities
Paul Zoltan, Esquire, Proyecto Adelante
Staff Present:
Andy Schoenholtz, Deputy Executive Director
Gregg Beyer, Senior Policy Analyst
Patricia Dunn, Senior Policy Analyst
Brett Endres, Policy Analyst
James Halmo, Senior Policy Analyst
David Levy, Senior Policy Analyst
Following initial introductions by the Commissioners, staff, and the practitioners, the CIR's deputy
executive director explained that over the course of the next several months, the CIR would be
submitting two reports to Congress. The first, dealing with refugees, would be issued sometime this
Spring. The second and final report, focusing in part on issues relating to the management and
organization of agencies and offices charged with administering the immigration laws, will be
issued in September. It was explained that the Commissioners were in Dallas to examine
management-related issues. In conjunction with this examination, the Commissioners were interested
in learning the practitioners' general observations regarding the agencies before which they practice,
i.e., INS, EOIR, and DOL, in Dallas and in the region, and regarding their experiences vis-a-vis
accessibility to and communications with agency personnel.
- Access and Communication: Ms. Slaughter observed that access and communication with the
INS have greatly improved under the administration of INS Commissioner Doris Meissner. Whereas
in the past Ms. Slaughter experienced a lack of cooperation on the part of the INS, this no longer
is the case. Over the last 3 to 4 years, she has found the INS to provide better service and greater
collaboration with Catholic Charities and the private bar in general. She also pointed out that she can
now find someone to talk to and deal with on the issues of concern to her clients. Ms. Slaughter
attributes these changes to Commissioner Meissner. According to Ms. Slaughter, the message that
the INS is to be "customer oriented" is resonating in the field.
Ms. Saenz-Rodriguez, however, indicated that she did not share Ms. Slaughter's experience. Ms.
Saenz-Rodriguez stated that she "never got an answer" from the District Office and generally found
the agency and its personnel difficult to deal with even on the simplest of matters. She explained that
the smaller the firm an attorney is associated with, in her case a 2-member firm, the less exposure
one has. As such, small firm practitioners find it difficult to get anything accomplished before the
INS District Office. This, however, is not her experience with either the Texas Service Center or
before the Immigration Court. In contrast to her experiences with the District Office, she found the
Immigration Court to be very helpful and accommodating, notwithstanding the very limited size of
its staff and resources.
To illustrate the lack of communication with the local District Office, Ms. Saenz-Rodriguez related
one example. She explained that the District Director and the local chapter of AILA had apparently
entered a binding agreement governing the filing of multiple completed applications at the District
Office. According to Ms. Saenz-Rodriguez, notwithstanding the binding nature of this agreement
on the entirety of the local bar, the agreement itself was never generally published or communicated
by the District Director to the local practitioners, including herself. To the extent such agreements
were being entered into, Ms. Saenz-Rodriguez believed that such agreements should be
communicated by the District Director. This example precipitated a discussion, without any
resolution, as to whether such agreements constitute "rulemaking," and whether a District Director
has the authority to enter into them. Staff subsequently contacted the District Director about this
process; the attached memorandum provides information gleaned from that discussion.
Mr. Gump stated that communication was the biggest problem in the INS. In his 24 years of practice
he has had frequent dealings with other federal agencies including DOL and the Department of State,
but the most difficult agency to deal with is the INS. In his view, the INS is not customer-service
driven whether that customer be the alien himself, the attorney bar, or pro bono organizations. At
the same time, Mr. Gump observed that things are better than they were many years ago. Today, he
finds many professionals at the INS; however, their responsibilities are many and their time is
limited. Nevertheless, in his view, the INS can and should do a better job in communicating with the
public it is supposed to serve. Commissioner Hill asked if communications with other agencies were
better. Mr. Gump said that in the Dallas region, communications with the DOL had been good, but
that recent downsizing has hurt.
- Separation of Benefits and Enforcement Functions of INS: Ms. Healy observed that with the
advent of greater processing of applications for benefits at the Regional Service Centers, it appeared,
at least from a practical standpoint, that the INS was moving toward a separation of its enforcement
and benefits roles. In her view, this represented a "sensible" approach. She noted that the Service
Centers, some of which were better than others (with the Texas Service Center ranked among the
better ones), could more efficiently and expeditiously process large numbers of benefit applications.
In response to Commissioner Merced's request for examples of Service Center successes, Ms.
Healy cited the Service Centers' more efficient handling of H-1B applications, visa petitions, and
applications for adjustment of status.
Mr. Gump opined that the INS should be divided into two agencies, one responsible for benefits, the
other for enforcement. He explained that the benefit and enforcement roles are as different as night
and day. Each side of the INS has enormous responsibilities and should be separated out.
On the other hand, Mr. Fernandez saw great problems with dividing the INS. In his view, there
already was a serious problem of communication within the INS on a whole host of issues. Further
separation or subdivision of the INS would only serve to exacerbate this already serious
communications problem.
Labor Certification System: Commissioner Hill asked for suggestions to fix the labor certification
system. Mr. Gump said that as a national policy we need to determine who and what we want. We
do not have a mechanism regarding new and emerging jobs. He would "open it up" and let business
decide whom they needed, so long as they paid the appropriate wages. Commissioner Estrada asked
if this would create problems such as additional workers driving down wages. Ms. Healy said that
DOL should talk to employers about shortages in certain occupations. Mr. Gump indicated that he
is also concerned about the DOL's new procedures designed to speed up the application process. He
is seriously concerned that while some applications would be processed in a streamlined fashion, the
system may actually slow down the processing of new emerging jobs.
Comments on the New Immigration Laws Passed in 1996: Mr. Fernandez explained that in his
view, the family unity tenet underpinning our immigration laws "took quite a hit" under the new
legislation, as is evidenced in the provisions severely limiting (if not in effect eliminating) 212(c)
waivers and suspension of deportation. Furthermore, the broadening of the list of crimes qualifying
as aggravated felonies will place more long-time residents in jeopardy of deportation and being
separated from their families. Indeed, he is already seeing this in operation in his practice. Under the
old law, an Immigration Judge could, as a matter of discretion, give long-time residents a "second
chance" if the circumstances warranted it, notwithstanding the existence of an aggravated felony
conviction. The new laws, however, take this discretion away by precluding such relief as a matter
of law, regardless of an alien's special or compelling circumstances. Moreover, if deported, the alien
is banned for life. Mr. Fernandez believes that in many cases, not only are the crimes committed not
"aggravated" in nature, but that the immigration-related consequences of the offenses and new
grounds of deportability are far worse than the underlying infractions.
Mr. Zoltan echoed these concerns in the attached article submitted at the luncheon which was
published in the Dallas Morning News, Sunday, January 19, 1997. In addition to discussing the
elimination of section 212(c) waivers for lawful permanent residents convicted of an aggravated
felony, he points out that Congress also revised the law governing what constitutes a "conviction"
for purposes of the immigration laws. Now, aliens who have been granted "deferred adjudication"
under state law will be considered to have been convicted of the underlying offenses. Mr. Zoltan
alleged that deportation officers were in the process of revisiting legal immigrants' files to see who
might now be deported for having accepted "deferred adjudication." Mr. Gump suggested that the
new law could be misused because a much broader range of conduct has now been criminalized and
the INS has been given extensive new resources.
Finally, Mr. Zoltan raised concerns about the new Act's and proposed regulation's emphasis on
detention. Although the new laws envision increased detention, in his view there are insufficient
detention facilities to fulfill this mandate. Moreover, he stated that the immigration laws appear to
be marginalizing the role of the immigration courts. For example, if an alien requests voluntary
departure before he goes before an immigration judge, the INS can grant him up to 120 days to
depart voluntarily. However, if voluntary departure is requested before an immigration judge, he
may only be granted up to 60 days and, if granted, the alien must post a departure bond. It is Mr.
Zoltan's understanding is that no such bond need be posted if the alien is granted voluntary departure
administratively by the Service. Such provisions have a chilling effect on the exercise of an alien's
right to be heard before an impartial judge.
Following the meeting, Mr. Zoltan sent the attached letter regarding possible effects of the new laws
on asylum.
Attachments (3)
Note for the File
28 January 1997
To:
Andrew I. Schoenholtz, Deputy Director
B
From:
Gregg A. Beyer, Senior Policy Analyst (INS)
Re:
INS Dallas District Office Policies and Procedures
As you will recall, during the Commissioners' 22 January meeting in Dallas, Texas with
some private immigration lawyers and representatives of some non-governmental immigration-related
organizations (NGOs), a question arose concerning some of the policies and procedures currently in place at
the INS Dallas District Office. At this meeting, there was considerable discussion in particular about the INS
policies on accepting, reviewing and receipting newly-filed applications. I called Arthur Strapp, District
Director of the INS Dallas District Office, to obtain further information on these policies.
Mr Strapp explained that, due primarily to insufficient numbers of INS Information Officers
(and now, of INS Cashiers), long lines of applicants and\or their representatives queued each day in order to
personally file their applications. At the time of filing, each application was reviewed for completeness by the
INS Information Officer/Cashier, and if complete, it was accepted, the fees receipted, and given an
appointment for interview. If the application were incomplete, the application would be returned for
completion, and no fee would be accepted and no filing date would be given. In order to keep the lines
moving, the Dallas District Office limited each visitor to filing only one application at a time. Family groups
are considered as "one filing."
This policy led some practitioners, especially from AILA, to complain that they needed a
way to file more applications more quickly than under the then-current policies and procedures. Therefore, the
following new procedures were worked out between INS and AILA, and publicized to AILA members (and
others) via liaison meetings with AILA and word of mouth in the attorney community.
Under this arrangement, the INS District Office agreed with AILA to establish certain days
as "attorney filing days" wherein it would accept multiple filings of attorney represented cases -- up to five at
any one time. Because a careful on-the-spot review of these multiple filings would be time-consuming, they
further agreed to accept them from the attorneys without review. The District Office would assume the
applications were complete, accept the fees, and provide the attorney with an interview date. Filings were
limited to adjustment of status and concurrently-filed subsidiary applications only. In turn, the AILA
practitioners said they would accept responsibility for filing only complete applications, and if they made a
mistake in completeness, they agreed to have their already-accepted "complete" application denied and the
original filing date canceled. In such cases, they would then have to refile the application and repay the fees,
along with any applicable penalties.
According to the INS Dallas District Office, this is a "gentleman's agreement" without
specific regulatory authority. Mr Strapp went on to state that if AILA or other attorneys come to feel that they
cannot accept the agreement as outlined, then the INS District Office will cancel the special attorney filing
days and these procedures. This would then result in a return to the system outlined in paragraph two above.
6
J
The Dallas Morning News
Sunday, January 19, 1997
Second Chance' is no chance for immigrants
George Orwell would be proud.
equivalent to taking a defensive driving course: You
Recently, when the Immigra-
tion and Naturalization Service
The list of crimes that now require
don't make a fuss about your innocence, and the prose-
cuting attorney lets you off with a slap on the wrist.
began rounding up and deporting
automatic, lifetime banishment is so long
If I had to guess, I would suppose that most of those
legal permanent residents with
criminal records, it called its
that it includes many offenses that most
who accept deferred adjudication are guilty of the
crime for which they have been accused. But since
effort "Operation Second Chance."
states treat as misdemeanors.
when do we punish those who are only probably
A second chance for whom?
guilty? As parents, we may have done it once or twice,
PAUL
Not for any immigrant, surely.
but it certainly isn't what we expect of our courts -
ZOLTAN
Pulled from their beds in night-
possession.
especially when the penalty is permanent deportation.
time raids and shipped to jails to
He doesn't speak Vietnamese (he was 2 when he
The Immigration and Naturalization Service's ironi-
await perfunctory deportation hearings, they haven't
left), and he leaves behind two children and a wife.
cally titled Operation Second Chance plunges into this
been given a single chance. Indeed, many of them may
Worse, Bob will be forbidden to return to the United
blur between accusation and guilt.
be innocent.
States in his lifetime. His toddling children never may
Right now, deportation officers are taking a second
The irony is especially trenchant for me. Last year, I
know their father.
look at legal immigrants' files to see who might be
helped to found an agency called "Second Chance" (or
Many more will follow Bob, despite having served
deported for having accepted deferred adjudication in
Nueva Oportunidad in Spanish). As a lawyer and immi-
their time, despite the families that depend upon them
a criminal case.
grant advocate, I had hoped to provide advice and
and despite any sense of proportion or justice.
Beginning with the most awful-sounding accusa-
counsel to long-term permanent residents facing
The list of crimes that now require automatic, life-
tions - sexual crimes, especially - Operation Second
deportation.
time banishment is 80 long that it includes many
Chance is dispatching agency officials to the homes of
The immigration laws then in effect permitted a
offenses that most states treat as misdemeanors.
these residents for nighttime arrests and subsequent
legal resident to request a pardon, or "waiver," from
Concerned that some "criminal aliens" might escape
detention.
deportation if he or she had lawfully resided in the
even this wide net, Congress revised the immigration
In the following weeks, the immigrants will be sum-
United States for more than seven years.
laws again in September. The lawmakers agreed that
moned for hearings in which neither justice nor guilt
Federal immigration judges were empowered to
an immigrant doesn't have to be actually convicted of a
is germane. Each will be deported. None may return.
grant the waivers under compelling circumstances -
crime in order to be deported as an aggravated felon.
The author of the latest immigration bill boasted
typically, when the person had an otherwise spotless
Henceforth, anyone granted "deferred adjudication" is
that it contained "the rack and thumbscrews" for crim-
criminal record and was the primary breadwinner for
to be considered convicted for purposes of deportation.
inal aliens. For many lifelong legal residents, the anal-
children who were U.S. citizens.
Many of them may be innocent.
ogy holds. Deportation is as awful for them as exile
But in April, the Anti-Terrorism Act did away with
Anyone who has been through Dallas traffic courts
might be for anyone reading this column.
such second chances. From then on, any immigrant
can attest that there are plenty of good reasons for not
Punishing the probably-guilty may pass for justice
convicted of certain crimes would be deported - with-
vigorously contesting your guilt: For starters, lawyers
for some places, but not in America. Operation Second
out regard to his or her personal history, family ties or
cost a lot, and you never can be certain of the outcome
Chance needs a second look.
length of residence.
of any trial. Offered a face-saving alternative to convic-
So it was for "Bob," admitted to the United States
tion that is mostly free of hassles, we take it. Why else
Paul S. Zoltan is executive director of Nueva Opor-
more than 20 years ago and now awaiting deportation
would we take defensive driving?
tunidad, a nonprofit agency that helps immigrants and
to Vietnam for a single conviction of marijuana
In criminal cases, deferred adjudication is roughly
their families.
Proyecto Adelante
P.O. Box 223641 Dallas, TX 75222
(214) 741-2151
FAX (214)741-2150
January 30, 1997
Andy Shoenholtz, Deputy Director
U.S. Commission on Immigration Reform
2430 E Street NW, South Building
Washington, D.C. 20037
Re: Asylum provisions of IIRIRA
Dear Mr. Shoenholtz:
At the close of last week's luncheon meeting, you invited my written comments on
particular provisions in the asylum law and proposed regulations. This letter comes in
brief answer to that request.
Apropos of asylum, the three provisions in the new law that most trouble me
pertain to expedited removal (IIRIRA §302), detention (IIRIRA §305), and asylum
eligibility (IIRIRA §604).
Expedited removal: This provision is certain to result in the return of refugees to the
hands of their persecutors; through careful regulation the INS may only limit the
number of potentially lethal errors.
My certainty comes, in part, of my experience with Somalis who apply affirmatively
for asylum with the Houston asylum office. All our 48 Somali clients who are (or
recently were) in deportation proceedings have been referred from the Houston
Asylum Office. Each was denied because an Asylum Officer found (a) she or he had
failed to show past persecution "on account of" one of the five protected statutory
grounds, and (b) the applicant's fear of returning was not "well founded".
Of the more than twenty cases subsequently tried before the immigration judges,
nearly all have won asylum; only one was denied for the reasons articulated in
Houston.
No formal feedback lets the Houston Asylum Office know that their decisions are
routinely overridden by the immigration judges (who sometimes view the referral
notices as risible). Without such a mechanism for review, most of these trained
officers would probably deem these asylum applicants to have no "substantial
possibility" of winning asylum (i.e. "credible fear")--though ultimately most do.
To limit tragic errors in a system stripped of effective judicial review, the implementing
regulations pertaining to expedited removal (8 CFR 3.42) should be revised to
mandate the following:
1.
Persons entering the U.S. with false or insufficient documentation who come
from countries with bad human rights records should be presumed to wish to ask
for asylum; none should be denied even a perfunctory "credible fear"
adjudication because they never said the magic word "asylum".
2.
"Credible fear" interviews must be conducted in an attorney's presence whenever
possible by sensitive officers trained to give the applicant the benefit of any
doubt. Quality control should be facilitated by the maintenance of precise
records and the establishment of a formal review process--preferably by a non-
governmental agency.
Detention: As I indicated at our luncheon, the Justice Department must revise its
regulations to ensure that, at the termination of the "transition period" designated by
the Attorney General (IIRIRA §303), respondents who show up for their removal
hearings do not face automatic detention if their applications for relief are denied by
the immigration judge. Unless the immigration courts are deemed off-limits to
arresting officers--at least in non-criminal cases--respondents will be strongly
discouraged from attending their hearings. Those who do show up are effectively
compelled to lodge pro forma appeals merely to postpone the finality of a judge's
order of removal.
Asylum ineligibility: 8 CFR §208 needs further revision to limit the injustice that will
result of IIRIRA's one-year time limit on applying for asylum. Countless
circumstances may prevent a refugee from applying for asylum within a year of entry.
Indeed, a study conducted by the Lawyers Committee for Human Rights in 1996
found that only 38% of 200 randomly selected bona fide asylum applicants had applied
within a year of entry. Unless regulations broaden the definition of "extraordinary
circumstances" which might excuse late I-589 filings, IIRIRA will prevent great
numbers of refugees from even applying for asylum.
Thank you for soliciting my views. I hope you will distribute this letter among the
Commissioners.
Sincerely,
Paul S. Zottan
Legal Services Director
2
United States Commission on Immigration Reform
Dallas site visit: Management Team Staff Summary Report
Visit to the Dallas Immigration Court
Date:
January 22, 1997
Staff Present:
Patricia Dunn, Senior Policy Analyst
Brett Endres, Policy Analyst
James Halmo, Senior Policy Analyst
David Levy, Senior Policy Analyst
The purpose of the visit to the Immigration Court was to observe deportation hearings
being conducted by video from a prison. Upon arrival, the Immigration Judge was in the
process of conducting "in person" hearings which had been re-set from a previous calendar
for a variety of reasons. In one hearing, the court ruled that the lawful permanent resident
respondent was now statutorily ineligible to apply for a waiver under section 212(c) of the
Immigration and Nationality Act in light of the provisions of the 1996 Antiterrorism Act,
notwithstanding the fact that the alien was in fact eligible for such relief during his previous
hearing before the Immigration Judge. As such, the court was precluded from considering
the length of the alien's residence, family ties in the United States, hardship claim, or other
personal circumstances. Inasmuch as this alien was statutorily ineligible for relief, no
purpose would be served by scheduling another hearing on the merits his request for relief
and/or any actual application he might be interested in filing.
In an exchange with CIR staff following the conclusion of these hearings, the Immigration
Judge indicated that he was on the "front line" in terms of deciding legal questions arising
under the new legislation. To the extent that he does not have the time to research arising
legal questions, he relies on counsel to brief the issues for decision. Judge Rogers
indicated that EOIR headquarters had scheduled a series of training sessions for
Immigration Judges to be conducted over the course of the next few weeks. Generally
speaking, he has had a great deal of independence as a judge, an arrangement that is to
his liking. He prefers to be left alone, as is the practice now, than to be overly directed by
EOIR management.
Judge Rogers praised the local attorney bar and described aliens in the Dallas area as
"quite fortunate" to have such representation available to them. As for the court's
relationship with the INS, Judge Rogers indicated that he had a "great" relationship with
the District Director to whose attention he has brought sympathetic cases about which the
Immigration Court could do nothing. Another illustration of this cooperative spirit is that the
Immigration Court agreed to make Saturday hearing time available for any hearings
necessitated by an INS worksite raid to be conducted the next week.
On the other hand, the court's relationship with the District Counsel was characterized as
"not good." In Judge Rogers' view, although individual Service attorneys were interested
in fundamental fairness in cases, this was not always true of their supervisors, including
the District Counsel. In Judge Rogers' opinion, the District Counsel was a very smart
lawyer, but not a very good manager and this results in a poorly run office. He did not state
the basis of his opinion in this regard.
Regarding the conduct of hearings by video, Judge Rogers explained that he came to
employ this hearing option reluctantly. He initially saw many problems with conducting
hearings via video (maintaining control over the courtroom, maintaining proper courtroom
demeanor and respect for the court by the alien, etc.) However, he finds that these have
proved to be non-issues. At present, the video hearings are used only in master calendar
hearings, or in hearings in which there is no contest as to excludability, deportability,
removablity, or eligibility for relief. It is rare, if ever, that credibility is ever at issued in such
cases inasmuch as the issues presented for decision are uncontested.
The video option is not presently used for merits hearings, and there are no plans to
change this. Judge Rogers did, however, indicate that many in the private bar appear to
like the video hearing option and see other uses for it, i.e., allowing witnesses from outside
the court's jurisdiction to testify without having to incur travel expenses; getting a speedier
hearing date, etc. Should an attorney request the video hearing option for a merits
hearing, Judge Rogers indicated he would be inclined to proceed on this basis. In any
event, Judge Rogers has become a video hearing convert and has found that in all material
respects such hearings are no different from those conducted in person. He, along with
the attorneys practicing before him, prefer the video hearings to those conducted
telephonically.
As for the video hearing itself, the direction of the camera is controlled by the Immigration
Judge on a machine sitting on the court's bench. The judge can zoom in for a close up
shot. For example, in the hearing we observed, the Immigration Judge zoomed in on both
the trial attorney and the interpreter as they were introduced for the record. Like other
hearing formats, an interpreter is present in the courtroom and provides
translation/interpretation services for the alien, as needed.
Video hearings are presently being utilized by at least three immigration courts: Dallas,
Baltimore, and Oakdale, La, with additional sites to be added soon in Chicago and
Philadelphia.
Clinton Presidential Records
Digital Records Marker
This is not a presidential record. This is used as an administrative
marker by the William J. Clinton Presidential Library Staff.
This marker identifies the place of a tabbed divider. Given our
digitization capabilities, we are sometimes unable to adequately
scan such dividers. The title from the original document is
indicated below.
Divider Title:
4
Meeting with INS Western Region Office Managers, Laguna Niguel, California
December 4, 1996
Participants
Mike Flynn, Deputy Regional Director
Carolyn Muzyka, Associate Regional Director
Dayva Stewart, Executive Director
Jim Booe, Assistant Regional Director, Adjudications
Chuck Brinkman, Acting Assistant Regional Director, Investigations
Gloria Leong, Assistant Regional Director, Inspections
Toni Looney, Assistant Regional Director, Detention & Deportation
Mike Nicely, Assistant Regional Director, Border Patrol
David Whitt, Assistant Regional Director, Intelligence
Virginia Kice, Director, Congressional and Public Affairs
Pat King, Director, Planning and Analysis
Bill Pritchard, Director, Resource Management
Shirley M. Hufstedler, Chair
Harold Ezell, Commissioner
Robert C. Hill, Commissioner
Warren R. Leiden, Commissioner
Andy Schoenholtz, Deputy Director
Jim Halmo, Senior Policy Analyst
David Levy, Senior Policy Analyst
Carolyn Piccotti, Senior Policy Analyst
The Commissioners opened the December 4, 1996 meeting by emphasizing that they were
looking for a forthright discussion of the work of the regional office, and that the purpose of the
trip was not to find errors or blame others for certain operations, but to become better acquainted
with the Service's management so that it could provide assistance, if possible. In particular, the
Commissioners would be looking for the field perspective on the INS management structure and
the pluses and minuses that now exits with the current organizational scheme. It was emphasized
that no comments made by the participants would be attributed to them in any formal reports
prepared by the Commission.
The Commissioners met initially with the Deputy Regional Director, the Associate Regional
Director, and the Office's Executive Director. They were subsequently joined by the various
assistant directors assigned to the regional office. The Regional Director was unavoidably
1
delayed and did not meet with the Commissioners. All of the participants expressed variations of
similar views on problems associated with the current organizational structure, the budgetary
planning process, and information flows up and down the chain of command. The management
heads of the regional office noted that they have been under constant review both internally and
externally. They noted that, previously, the Service was not expected to deliver. Support and
resources were constantly lacking. Now, however, with an annual budget that has grow from one
billion dollars three years ago to approximately three and a half billion dollars, the challenge for
INS is to deliver. The Western Region has a budget of 581 million, although it has the lion's
share of the Service's immigration workload.
Organizational Structure. The July 1994 INS reorganization, which provided for the return of
a regional director management level, is still considered incomplete. Previously, seventy-two
district directors reported to one person in the Washington headquarters. The regional directors,
under a previous regional structure which existed in the 1980's, had no budgetary control, no
guidance, no resources. According to the participants, it was considered a poor structure. There
was no span of control. Now the regional staff have more control; there exists greater uniformity
in the field offices. However, there exists a need for more definition in the region. 'The devil's in
the details.' According to the participants, all of the regions need to have clearer lines of
communications with INS headquarters.
The participants felt that the new INS structure was set up to fail and not to work. According to
the participants, the District Directors do not necessarily appear to oppose a major role for the
regional structure. However, they perceive that there is no need for the EAC management level
(with four Executive Associate Commissioners reporting to the Deputy Commissioner
responsible for Programs; Field Operations: Policy and Planning; and Management) created by
the 1994 reorganization. The view was expressed that the Regional Directors should report
directly to the Deputy Commissioner. The participants felt the INS Commissioner is not getting
all the information she needs to properly make decisions.
The INS headquarters operations has two major units -- Field Operations and Programs -- which
appear to do ostensibly the same thing. Field Operations was created from scratch with 25
employees. The Program side, however, remained intact with some 500 employees. It has no
program elements (with the exception of the four Service Centers which fall operationally under
the Benefits Division.) (The term - Programs - may be a misnomer.) Field Operations has been
given line authority over the regions, however, the program side seem to continue operating as
before. The Program Office has the all the technical expertise; thus, the regional and district
offices tend to call the Program Office for advise, rather than direct their technical questions to
the Field Operations staff. Additionally, it was noted that the small Field Operations staff at
headquarters continues to be flooded with requirements from Policy and Planning. It was also
stated that because of the size difference alone, Field Operations is overwhelmed by Programs.
The organizational structure at headquarters calls for a consensus of view. It was noted that the
region frequently sees operating memoranda signed by two or more people. This has a history or
2
legacy of peer-to-peer consensus at the headquarters operation. According to the participants,
decision memos seem to bounce around from Executive Associate Commissioner to another
Executive Associate Commissioner [EAC], and never see the light of day. Given this operational
structure, decisions on any issue can be revisited again and again. The regional managers argued
that this bifurcation of responsibilities must end; a simpler structure is called for.
It was noted that the Headquarters Policy and Planning office should set the battle plan, and then
turn it over to Field Operations or Programs to implement the organization's goals; but, that does
not occur. Field Operations and Programs can frequently disagree on a course of action.
As regards adjudications, it was noted that the four Service Centers do not report to Field
Operations but to Programs in Washington. However, the Service Centers must coordinate with
the local offices around the U.S. for the scheduling of appointments to adjudicate various
petitions. The local field offices are run by the District Directors who report to Field Operations;
however, the Service Centers, which provide the adjudicative workload to the local field offices,
report to Programs in Washington. (The four Service Center Directors report directly to the
Assistant Commissioner heading up the Benefits Division.) The participants argued that there
should exist just one reporting chain of command as well as control of resources through that
same chain of command. In reviewing the 'Citizenship U.S.A.' program, for example, the
participants also found it difficult to identify who was in charge; the role of the various offices
was complicated and confused. One EAC controlled a part of the process and another EAC
controlled other elements. Policy calls had to be resolved at the Deputy Commissioner level;
however, the participants stated that there was strong reluctance to push decision making to that
level for resolution.
One participant noted that a perception exists in some quarters at INS headquarters that the
regional level is redundant and that decision making should flow from headquarters directly to
the district level. However, it was noted that with the large increase in staffing at INS
headquarters, too many people are giving orders to the field, and they not playing by the
established rules. 'There are too many masters.'
The entire administrative structure -- budget, hiring, procurement, etc. -- reports to the EAC for
Management in Washington. According to the participants, lines of authority and command are
not clear. However, the people in INS make it work, regardless of the structure. The structure
does not fit the problems faced by the Service. More simplicity in structure is required.
Additional reorganizations on the administrative side may be necessary.
Administrative Centers. There was consensus among the participants that the regional directors
should control the management structure. If the regional director does not control the
management side, it is most difficult to go to him to say specifically what you wish to have
accomplished on a policy basis. The District Directors control all their people, but not so at the
regional level.
3
The Chair inquired about the few first steps that could be taken to ensure that the structure does
not fail. The opinion was expressed that the persons empowered in Washington to make such
decisions need to get unfiltered information from the field. The regional management staff noted
first the problem of transferring control over the regional administrative centers from
Washington to the regional directors. No full time positions are currently being filled since it
remains unclear what the centers will do. It was thought originally that as many as 125 positions
might have to be abolished, many people left or transferred out of the administrative center, and
now only temporary employees can be hired. The administrative center currently faces a shortage
of employees. The shift in line of command authority was to have been initiated on October 1,
this changed to December 1, and it has now been put off for implementation by April 1, 1997.
Why have there been delays at headquarters? It was opined that some in the INS headquarters are
not convinced that the regional structure is the way to go regardless of the Commissioner's vocal
support for it. Foot dragging may be occurring, with some headquarters officials with vested
interests delaying the process. If this continues, with the loss of administrative support personnel
in the administrative center, all of the regions may not be properly staffed to take over the new
responsibilities once the actual transfer of responsibilities occurs.
Border Patrol. The structural problems of the INS were highlighted by a discussion of the
Border Patrol [BP] command structure. According to the participants, the command structure is
dysfunctional from the headquarters to the field. The problem lies in no clear lines of authority. It
is a process rather than a people problem. This results in poor operations. However, there exists
enormous pressure to get things fixed along the southern border. The Immigration Act of 1996
gives the INS tremendous resources, and a fear exists that the Service may mismanage the
southwest border strategy. The INS Commissioner is considered to be doing her best; however,
the deployment of forces never seems to catch up with the policy statements. Decisions on many
details (such as who on the border will get radios, automobiles, etc.) are made at the headquarters
level. Border sector chiefs have no control over their staffing levels and equipment. 'The
headquarters needs to do less rowing.' "They need to steer.' Much gets lost in passage from the
headquarters to the field was a constant complaint from the participants.
According to the participants, the Chief of the Border Patrol in Washington does not supervise
the Border Patrol in the field. He supervises only his Washington staff. The Chief of the Border
patrol reports to the Executive Associate Commissioner [EAC] for Field Operations, on a
temporary basis. He had been reporting to the EAC for Programs. The entire border parol
function in INS was detailed to Field Operations in June 1995. It would normally be assumed
the that EAC for Field Operations would delegate responsibility for the guidance and managerial
supervision of the BP to the BP chief, but that has not occurred. The BP Chief essentially fills a
staff position. He cannot direct sector chiefs to realign personnel to deal with broader problems.
Border Patrol issues consume much of the Regional Director's time; he has direct line
supervision over the Regional Border Patrol chief but there is no direct chain to the senior border
patrol chief in Washington.
4
Career Paths. Previously, almost all senior positions came from the enforcement side, now you
see movement up the ladder from the service side of INS. Personnel on the enforcement side tend
to be graded higher in the civil service structure than those in the service side of INS. Thus, they
tend to rise up to higher managerial levels. However, they have not been trained previously for
more senior managerial positions; rather, they tend to be competent experts running large
operations. According to the participants, a true career path is called for in the INS. Personnel
should be evaluated at both the district and regional levels. Potential senior managers and
leaders need to be identified. The Service needs objective criteria for selecting personnel to be
moving up the chain of command. Experience should be a larger part of the input into such
decisions. Courses for training managers are considered essential. The participants stated that the
Leadership Development Center at Dallas (run by Jennifer Nelson Lee) has been doing a good of
job of starting the training process.
Communications. While the participants stated that they would prefer to see cleaner lines of
command, they also noted that communication should not get bogged down in the middle at the
regional level. They also noted that guidance generally has been slow in coming from the
headquarters operation. The field does not yet know how to deal with various aspects of the new
immigration legislation as well as the welfare reform act and the anti-terrorism legislation. The
regional office has advised headquarters about the region's data base system and how operations
are handled locally. The operating instructions from headquarters have to be rewritten
extensively. They are working, however, with the five major task forces established to write the
new regulations. Given the April 1, 1997 deadline for many of the new provisions, there will be
a very short time frame to train the thousands of Service officers on the new laws, and how they
should be implemented. For example, how will the Service capture the information on foreign
nationals departing the U.S. in order to deal with various aspects of the new legislation? Form I-
94 are currently picked up by the air carriers, given to the Service, and the information is entered
into the Service's computer system. However, many I-94's are not retrieved. How will the
Service deal with persons trying to reenter the U.S. when their is no record of their having
departed previously?
Service and Enforcement. Can both service and enforcement exist in the same organization?
The Chair noted that we have been hearing for over ten years that the two cannot be capably
performed by one organization. The INS Commissioner said the INS can do it. It was noted that
it is hard to wear two hats. Consistency may be more important. Adjudication of benefits is
different from enforcement. Should there be a single career path or should it zigzag? The INA is
a complex document. One of the Commissioners asked if another DOJ agency would be
appropriate. The EOIR may be a model. Fifteen years ago the District Directors also had
responsibility for the immigration courts. One of the participants stated that the District Directors
overall have had responsibility for both enforcement and services; and that for some it has not
been difficult for one manager to handle both sides of the issues. However, more consistency in
approach may be required across the board. You have to ask the customers, the clients, according
to one participant.
5
Budget Process. Along with the concerns expressed over the management control of resources,
the participants believed that the budget process requires reworking. It was felt that over the last
2-3 years the decision-making at headquarters has been improving. The EAC for Field
Operations, for example, is now consulting the field more extensively. They called it 'an
evolving process' and 'a work in progress.' The priority process is generally improving,
according to the participants.
A 'bottoms up' budgetary process does not exist. The participants could not say how long this
'top down' budget process had been in existence; most stated that it had existed during their
tenure. It was opined that sector chiefs and district directors should provide input on resource
needs based on the established headquarters policy goals to the regional offices along with cost
projections. The regional offices could provide cost analysis when not available at the local level
for program elements. This would permit a clearer understanding of resource needs and
allocation. It could be explained easier to OMB and to the Hill. 'Currently, the process is not
defensible and the product is not defensible.' It was felt that the staff in Washington should act as
staff personnel without program responsibilities. It was stated that some 4,000 personnel now
work at INS headquarters out of an agency total of some 21,000. (It is not clear if this cited
headquarters total includes personnel assigned to the four Service Centers, which have a total of
1094 FTE positions and 1247 contract employees. Thus, the total number of personnel actually
working in the Washington headquarters operation may be closer to 1600 persons.) The Western
Region has some 9,000 employees, but receives only 581 million dollars out of a total budget of
3.5 billion dollars.
The Chair noted that the Commission will try to make recommendations to improve the process.
Policy should always drive the budget, she noted. If you do not get in on the ground floor with
resource needs, you cannot get into the budget cycle.
Removals. In addressing the issue of removals, it was noted that milestones for the numbers of
removals to be attained are set by the headquarters operation with consultation either regionally
or locally. The headquarters sets the level of removals to be attained in a given year. However,
headquarters does not go the field first to get its views. They simply set the removal goals. It is
not clear how they came to a specific projected number. 23,000 persons were removed last fiscal
year from the Western Region and 53,000 is the projected goal for FY-1997. That was also
perceived as a major weakness in the overall budget process by the participants.
The number of persons apprehended is frequently controlled by the numbers of beds available for
detention purposes and subsequent removal. Some three years ago the region had only 400-500
beds for detainees; it now has 4,123 beds in its detention spaces region-wide. How do personnel
in Deportations coordinate with Inspections? One participant stated you go back to the buddy
system to see what can be done. A priority detention list exists (with terrorists and criminal
aliens heading it) and it is followed by those in the Service responsible for the arrest, detention,
and subsequent removal of aliens from the U.S. The region follows a 'hotel concept', wherein the
regional office knows which beds are occupied, where the needs exist in various districts, and
6
what vacancies can be matched to new detentions.
In some instances it is difficult to remove certain nationality groups. For example, it has been
difficult to remove Jamaicans with final orders under six or seven months. The State Department
has been 'leaning' on the Jamaicans to be more responsive, particularly on 'bag and baggage'
cases. There are large numbers of Cubans and Vietnamese, who are criminal aliens and who, by
law, cannot be released except by executing a final order of deportation. It was estimated that
they occupy approximately ninety percent of the dead bed space in the Region. The participants
felt the Service needs to identify long term facilities to house such deportees. It would be cheaper
in the long term and it would free up temporary holding space for more productive use. Again,
however, the participants noted that headquarters staff does not appear to generally have field
experience, and thus the headquarters may not fully understand the field needs for improving the
removal system.
Fingerprint Problems. As part of the discussion of managerial issues, the Commissioners raised
a question about allegations in the press that hundreds of legal permanent residents had been
naturalized quickly without waiting for the results of FBI fingerprint checks. The participants
responded that the allegations were not true. They noted, however, that quality assurance could
have been better. The naturalization cases had been backlogged for eighteen months when
fingerprints were being sent in for security checks. The process was accelerated under the
Citizenship U.S.A. program, with cases being adjudicated on a post-audit basis. This brought on
the allegations. Interviews were being conducted within three months of formal application. The
FBI was flooded with over 1.2 million fingerprint cards as part of the process of faster
adjudication. This overloaded the system and the Bureau could not meet the time frames. It has
been able to reduce the backlog processing from 18 months to 6 months in response to the
Service's request. The 18 month delay was the result of various factors: fewer resources as well
as a large increase in naturalization requests responding to recent welfare reform legislation and
the previous legalization programs. It was noted that the Service has been under a crisis
management mode for a long time. Planning needs to be done on resource needs for the years
2000, 2001 in order to deal with future such problems. Policy and Planning at Headquarters
needs to look at the admissions and adjustment numbers, look down that line at what that will
eventually mean in naturalization, and then do some calculations on the numbers of persons
needed in the Service to process naturalization requests.
The accounting firm KPMG Peat Marwick is conducting an audit of all naturalization cases since
September 1995. It must report its findings within ninety days. 60,000 persons had FBI rap
sheets, however the existence of a rap sheet report does not preclude someone from obtaining
naturalization. The information on the rap sheet could actually be information or a report from
the INS itself. The Service performed a computer name check of all of the cases. Now the
individual records must be examined.
In tandem with the fingerprint question, one of the Commissioners inquired whether or not the
English standard and physical presence requirements had been relaxed in order to get the
7
backlogs of naturaliztions down. It was noted that the interviewing process was streamlined to
reduce processing time. One person used to handle all of the processing steps in one case. Now
the various steps are split by function. According to the participants this has not resulted in a
relaxation of the standards.
The Chair expressed her appreciation for the most candid views expressed by the participants and
encouraged them to make any additional written comments they desired to the Commission. She
reiterated that any such statements would not be attributed personally to them.
8
Meeting With Administrative Operations Managers, INS Western Regional Office,
Laguna Nigel, California
December 4, 1996
Participants
Debra B. Hayes, Director, Administrative Center
Bill McCullough, Assistant Director, Information Resources Management Division
Shirley M. Hufstedler, Chair
Harold Ezell, Commissioner
Robert C. Hill, Commissioner
Warren R. Leiden, Commissioner
Andy Schoenholtz, Deputy Director
Jim Halmo, Senior Policy Analyst
David Levy, Senior Policy Analyst
Carolyn Piccotti, Senior Policy Analyst
The Commissioners expressed their appreciation for Ms. Hayes and her Information Resources
Management Chief to meet with us on December 4 to discuss the administrative operations at the
Western Region. Ms. Hayes provided a copy of the Center's Briefing Book together with a
February 1996 report prepared by the Justice Management Division entitled "A Management
Review of the Administrative Services in the Immigration and Naturalization Service." She
stated that the DOJ report capsulized the problems associated with the administrative center
system. Ms. Hayes, who has had more than twenty years federal government service (working in
administrative managerial positions previously with DEA and FDA), has been in her current
position for approximately eighteen months. It was emphasized that no comments made by the
participants would be attributed to them in any formal reports prepared by the Commission.
Under the current INS organizational structure, the four INS administrative centers report to the
Associate Commissioner for Administrative Centers who, in turn, reports to the Executive
Associate Commissioner for Management. Ms. Hayes reiterated a comment made earlier in the
day by the Western Regions' managers that the Administrative Center Director does not report to
the Western Region Director, but to Washington Headquarters. The proposed transfer of the
Administrative Centers to the Regional Directors' control has been put off a number of times. It
was her view that the proposed transfer was tied up with two other senior management
reorganization issues which must be formally reported to the Congress and about which some
1
internal debate exists. (This might include putting the Border Patrol operations permanently
under Field Operations, and placing Public Affairs under the EAC for Policy and Planning.)
Ms. Hayes was not inclined to believe that the shift in oversight responsibility for the
Administrative Centers would occur by April 1, 1997, as currently rescheduled. She opined that a
fear still exists in the INS headquarters about the myth of 'out of control directors'. However, the
fact that the Regional Directors are Civil Service personnel and not Schedule C appointees
should allay such fears. However, she added that the vast majority of GS-15 personnel and above
at the INS headquarters have minimal or no field experience. Thus, they tend to be highly
reactive to events. She added that she had never seen a federal agency as politicized as the INS.
The headquarters structure was designed for personalities and not for effective and efficient
operations. She also opined that too many personal agendas at the headquarters are impeding the
flow of information from the field to the Commissioner as well as information about decisions
made by the Commissioner's subordinates.
Among her other comments, Ms. Hayes believes that all personnel below the GS-7 level should
be under contract. Given the constant turn over of personnel filling lower graded positions, some
stability personnel wise might be achieved.
Under the current formal organizational structure, if the Administrative Center Director believes
that additional border patrol resources are needed or that resources should be shifted, for example
from one sector to another, a formal request must be forwarded up to the Associate
Commissioner for Administrative Centers (John Schroeder), to the Executive Associate
Commissioner for Management (George Bohlinger), to the Deputy Commissioner (Chris Sale),
down to the Executive Associate Commissioner for Field Operations (William Slattery), to the
Acting Associate Commissioner for Field Operations (J. Scott Blackman), and finally to the
Director of the Western Region (Gus De la Vina). A response to this formal request must then
retrace the same steps back to the Western Region's Administrative Center. Informally, a
telephone call or a brief office visit in the same building between the Western Regional Director
and the Administrative Center Director quickly ascertains the viability of such an action.
However, the formal paper trail approving such a personnel resource move can be extremely time
consuming, without any guarantee of success.
Ms. Hayes believed that the incumbent in her position should report directly to the Regional
Director. Thus, the Center would not have to compete with the other regions for resources. It
would also shorten the decision-making time frame.
Ms. Hayes was critical of the current headquarters operations which sees itself as responsible for
crisis management and which tends to service those above, but not those below. She opined that
the INS headquarters does give some opportunity for the regions to identity financial and
program problems. She noted that she must compete with the other three administrative centers
for personnel resources. According to Ms. Hayes, she is criticized for not being a 'team player'
when she notes the high degree of problems specific to the Western Region which require
2
additional resources.
Currently there exists a freeze on hiring permanent staff for the Administrative Center; a number
of division and branch chief positions are filled by acting personnel. Ms. Hayes converted her
Deputy Director position to a technician, a position which would prove more useful over the long
haul. She has also bought some temporary positions to deal with the increased workload. Total
accountability for a region's administrative operations without resources has not worked, in her
view.
Ms. Hayes also expressed concern about the split in headquarters between Programs (which may
not be the appropriate title) and Field Operations. There exists a division between those who give
written instructions and write regulations (Programs) and those who carry them out (Field
Operations). One set of instructions provides policy guidance and the other examines what is
being done right and wrong. There exists no formal feedback mechanism from the field.
Ms. Hayes believes that the INS must deal more effectively with the allocation of resources. With
the implementation of new welfare legislation, the State of California will be impacted to a
greater degree than any other State. The lines of people queuing for service will only increase, the
naturalization process will continue under close scrutiny (and thus slow down the process), and
the headquarters operations will react to the situation rather than face the problems now through
advance planning and an increase in the allocation of resources to the Western Region. She
added that increased accountability (as provided for in the National Performance Review
exercise) should be provided to the field in addition to necessary resources.
3
Staff Report on December 4 Tour of INS Service Center at Laguna Niguel
Participants
Dona L. Coultice, Service Center Director
Fujie Ohata, Deputy Director
Numerous supervisors and other personnel at various points in the tour
Commissioners Participating
Chair Hufstedler, Commissioners Ezell, Hill and Leiden
Staff Participating
Andy Schoenholtz, Jim Halmo, David Levy and Carolyn Piccotti
This portion of the visit consisted of a tour of the various components and functions of the
Service Center. The facilities visited included the incoming mailroom, file maintenance areas,
data entry sections, computer room, adjudication area, various product lines, and operations
division. The Center employs 269 INS employees and 338 contract employees.
The Service Center receives 75-80,000 applications per month and received $52.8 million in fees
in FY 96. The Center's mail room, file room, and data entry operations are staffed by contractor
personnel (Labat-Anderson), as is the computer room (Maxima Corporation). Their work is
monitored by INS employees. All adjudications are performed by INS employees. The Service
Center also operates an information unit which sees some 1100 walk-ins per month.
There are three Adjudications Divisions which are grouped by benefit type or "product line." The
product lines consist of Business and Trade Product Line, Family Product Line and Residence,
Naturalization & Status Product Line. Each of these is responsible for specific types of
applications. The Center adjudicates some 800 cases per day. Because of time constraints, we
were only able to briefly observe the partial adjudication of one case.
The Center currently issues 400-600 alien employment authorization cards per day. Much of this
production process is done by hand. New technology will be put into operation in January 1997,
which will produce 300 such cards per hour. In the future, this equipment will also process alien
registration and border crossing cards. Similar equipment is already in operation at the Nebraska
Service Center, and is scheduled for installation at the Vermont Service Center
The Operations Division investigates suspected cases of fraud. They have found many
apartments and condos used as business addresses for L visa applicants. Some have even used
motels. In the past two months, in checking applications for a 2-year extension of L-1 visas,
investigators have found only one possible good business address. This was a special project
looking at Chinese import/export cases. Overall, in six months, they have found an 80% fraud
rate. They work closely with the Department of State which finds, upon overseas investigation,
that 90% of the cases are fraudulent..
2
U.S. COMMISSION ON IMMIGRATION REFORM
Los Angeles site visit: Staff Summary Report
DATE:
December 6, 1996
PLACE:
INS District Office
Commissioners Present:
Chairwoman Hufstedler, Commissioners Leiden, Ezell and Hill
Staff Present:
Executive Director Susan Martin, Deputy Director Andy
Schoenholtz, Senior Policy Analysts, James Halmo, David Levy
and Carolyn Piccotti
Participants:
Richard K. Rodgers
District Director
Rosemary L. Melville
Deputy District Director
John Salter
District Counsel
Anne St. Denis
Director, Asylum Office
Lola Parocua
Area Port Director
Leonard Kovensky
A.D.D. for Detention and
Deportation
Jane E. Arellano
A.D.D. for Adjudications
Chris Fowler
A.D.D. for Management
John McAllister
Acting A.D.D. for Investigations
John Brechtel
Acting Officer in Charge, Orange
County
Evelyn Diaz Brown
Court Administrator, EOIR, Los
Angeles
The discussion began with an introduction by Commissioner Hill who explained that the purpose
of the visit was to examine management related issues. In particular, the Commission wanted to
receive information from the INS district office staff regarding their day to day operations as well
as their relationship with the regional office and headquarters. Mrs. Hufstedler encouraged the
participants candor by explaining that their observations would not be attributed to anyone in
particular. At the outset, several of the government participants listed above were unable to
attend, but sent deputies in their stead.
The participants noted that the Los Angeles County district office covers a seven county area and
has jurisdiction over the largest alien population in the country. One seventh of all foreign
nationals in the country reside in southern California.
Organizational Structure and Functions
The participants noted that the Los Angeles district office is divided into four general function
areas: adjudications, management, deportation, and investigations. Adjudications has
approximately 500-600 employees, of which 300 are temporary, to handle all adjudication
functions.
Management personnel have decentralized their functions to the extent that they maintain
programs with community based organizations to provide information to the public.
Deportations employs approximately 250-300 persons. They oversee approximately 600-700
detainees, including the San Pedro processing center which has a 550 bed capacity. The
deportation unit has new resources allocated to "bag and baggage" operations whereby they
examine the immigration court docket to track all final orders of deportation/exclusion. This
program was initially targeted to apprehend failed asylum seekers. Furthermore, the district office
maintains a 24 hour processing of criminal aliens who are funneled to four state prison sites.
Sixty days before their release, these aliens are processed before the immigration court and
receive immediate removal orders. Approximately twenty percent of the criminal population in
state penitentiaries are criminal aliens, and the district office is almost 100 percent successful in
removing them. Also, before a criminal alien is actually removed from the country, a second set
of fingerprints is taken and forwarded to the state capitol in Sacramento to ultimately be entered
into the NCIC system. The U.S. Attorney's office will prosecute aliens for unlawful re-entry
upon a showing of either two felony convictions and one deportation order. or two deportation
orders plus one felony conviction.
The investigations division employs 325 persons who concentrate on criminal alien
apprehensions. A full time unit is maintained at the Los Angeles County jail which generates
approximately 150-200 removal orders per week. Investigations also has a fraud component
which concentrates on seizing fraudulent documents. The sanctions unit works with the
Department of Labor and IRS investigators to analyze the underground economy. The anti-
smuggling unit has been effective in thwarting several Chinese smuggling rings, however, it
remains in need of greater resources. It is estimated that this division needs an additional 25
officers to adequately cover all jails.
The inspections unit, with a staff of 225 inspectors, is stationed at Los Angeles International
airport and the sea port authority. They perform approximately 15,000 to 25,000 inspections per
day.
The district office is one of the sites designated by headquarters to establish an employment
authorization verification program. Currently, approximately 1000 area employers are a part of
the pilot program. The results have been favorably extolled by both the employees and the
employers, because the initial verification occurs almost immediately. City area mayors favor the
program because it has had a downward pressure on crime rates, and has forced the illegal
population to shift elsewhere. The district feels that the program is quite effective. We observed
a demonstration of some actual verifications being performed. A copy of the Service's report on
the verification project is attached.
Naturalizations
The Los Angeles district office processes 265,000 to 300,000 applications per year,
approximately one quarter of the national total.
The Budget Process
All participants complained that the budget determination process is done from the top down,
that is, headquarters establishes priorities and goals without input from the regions or the field as
to whether these goals are realistic or achievable. Then the region allocates funds to the districts
without consultation. The district office has no specific staff for budget preparations, however,
each program manager prepares quarterly budget reports which are then forwarded to the regional
office. The budget reporting lines track as follows: the district office reports to the regional office
who reports to the EAC for Management who reports to the Deputy Commissioner who
ultimately reports to the Commissioner. The administrative centers do not report to the regional
office, but directly to headquarters.
Management Structure
All participants complained that this structure is needlessly cumbersome and unresponsive to the
needs of the district offices. Furthermore, the structure serves to insulate the Commissioner from
vital information from the field. It was also noted that, as a further example of needless
bifurcation, deputy directors have two position descriptions with two different pay scales; one for
those who ascend through the ranks through the enforcement divisions, and one for those who
arise through the service divisions. The participants suggested that the EAC tier be eliminated
because there is no clear idea which EAC has responsibility for which functions. For example,
the EAC's for programs and policy/planning often give conflicting orders, and there is
duplication between operations and programs.
The participants suggested that the rationale for the present structure grew out of concern for the
unrestricted authority of the regional commissioners, who, at one time, were political appointees.
These individuals apparently developed a fiefdom mentality and remained unaccountable to the
central office. However, this liability has been eliminated as regional directors are now career
officials.
United States Commission on Immigration Reform
Los Angeles site visit: Staff Summary Report
DATE:
December 5, 1996
PLACE:
Hotel InterContinental at California Plaza, Los Angeles
Bradbury Room
Working Lunch with Private Practitioners
Management Team
Commissioners Present:
Shirley M. Hufstedler, Chair
Harold Ezell, Commissioner
Robert C Hill, Esq., Commissioner
Warren R. Leiden, Esq., Commissioner
Staff Present:
Susan F. Martin, Executive Director
Andrew Schoenholtz, Esq., Deputy Director
James Halmo, Senior Policy Analyst
David Levy, Senior Policy Analyst
Carolyn Piccotti, Esq., Senior Policy Analyst
Participants:
James D. Acoba, Esq., James D. Acoba and Associates
Michele A. Buchanan, Esq., Chair (Acting), Southern California
AILA Chapter
Katherine Haight, Esq., Law Office of Bryan Cave
Ellen Ma Lee, Esq., Don and Lee Law Office
Carl Shusterman, Esq., Law Office of Carl Shusterman
Warren Winston, Esq., Davis and Winston
The participants at this session were members of the private bar who had experience in the areas
of the affirmative benefits provisions of immigration law, including non-immigrant visa
processing, family based immigrant visa applications, as well as asylum, and
exclusion/deportation. The Commission sought their consultation on the areas of management
structure in order to assess the strengths and weaknesses of the structure and offer
recommendations for improvement.
The participants were unanimous in their overall recommendation that the Commission should
establish general policy guidelines, rather than provide detailed, extremely specific
recommendations on operating practices. For example, the participants lamented what they
considered bureaucratic inefficiency in the Los Angeles district office which resulted in unusally
long waiting periods for naturalizations. One participant stated that a sixteen month wait was not
unusual. The overwhelming majority of applicants are bona fide, therefore why compel everyone
to wait an inordinate length of time. It was recommended that naturalizations be processed
more quickly, and in the event there is a problem discovered at a later date, citizenship be
revoked.
The participants recommended that a decentralized model of management be encouraged.
Decision making authority should be done at the lowest possible bureaucratic level, with
accountability moving upward to the highest level. They also suggested a zero based budgeting
structure, with priorities established at the local level.
Several suggested greater consultation with private practitioners to implement new regulations
and new provisions in the recently passed immigration laws. The participants noted that the Los
Angeles district office allocates resources on a crisis management model, as opposed to
anticipating needs. This could be facilitated by greater cooperation with representatives and the
district office.
Those participants who number among their clients corporate and business entities stressed the
need to streamline the labor certification process which now averages two years. In order for
United States industry to remain competitive in an ever expanding global market, commercial
enterprises need easy access to a global labor pool. Therefore, a cumbersome, costly, and time
consuming labor certification process does not serve this goal. Cases which are easily approvable
should move through the system quickly. The participants recommended that the INS copy the
waiver program instituted by the Department of Labor for certain cases. For example, certain
classes of highly skilled workers should be exempt from a labor certification process.
Also, consistency of practice within the agency is essential. Employers should know that a
certain kind of form is acceptable everywhere. Minor and technical immigration transgressions
should be penalized by the payment of fines and not by a blanket bar to any form of immigration
benefit.
Furthermore, the participants recommended that the dictionary of occupational titles should be
updated. The employer should have the final say in hiring; perhaps on a two year conditional
basis with the payment of a fine if the employee is released without good cause during that
period. The participants also noted that access to a foreign labor market often leads to reciprocal
United States access to a foreign consumer market. All the participants noted that employers
favor the electronic verification process and recommend that it be instituted nationwide.
CONCLUSIONS
In general, the participants recommended decentralization of decision making authority,
increased cooperation between the private bar and the district office, zero based budgeting with
priorities set at the local level, and eliminating the duplication of efforts between the three
agencies responsibile for nonimmigrant visa processing.
Staff Report on December 6 Los Angeles Meeting on Labor Certification System
Participants
Rebecca Marsh-Day, USDOL Regional Certifying Officer
Laurette Elsberry, Fraud Specialist, Alien Labor Certification, California Employment
Development Department (EDD)
Carolyn Frank, Program Supervisor, Alien Labor Certification Office, EDD
Juanita Johnson, Program Specialist, Alien Labor Certification Office, EDD
Esperanza Slaughter, Program Specialist, Alien labor Certification Office, EDD
Marie Quinn, Assistant Manager, Los Angeles Central Job Service Office, EDD
Commissioners Participating
Chair Hufstedler, Commissioners Hill and Leiden
Staff Participating
Susan Martin, Andy Schoenholtz, Jim Halmo, David Levy and Carolyn Piccotti
The Discussion opened with an explanation of the Commission's overall mandate, and the
specific purposes of this meeting with respect to learning about the labor certification process.
Current Process
EDD representatives outlined the current application process. Job classifications that are outside
the Dictionary of Occupational Titles are referred to the DOL Regional Office for resolution. If
the Region cannot resolve the classification it is referred to the National Office in Washington.
In cases of restrictive requirements, if they are not removed, the case is referred to DOL. If
employer justifies such requirements referral is also made to DOL. Frequently, States give
employers informal extensions of time if certain time frames are not met. The use of follow-up
questionnaires to job seekers referred to orders under the labor certification system used to get a
43% reply rate. Many requests for certification were denied as a result of the questionnaires. The
use of the questionnaires ended on October 1 due to budget cuts. Follow-up with employers is
only done sporadically.
Ms. Marsh-Day said that current trends include bringing in large numbers of accountants from
the Phillippines and market research analysts with specific language requirements. In response to
Commissioner Leiden's question, she said that both DOL and EDD can sort cases by occupation.
I
Streamlining
Ms. Marsh-Day noted that changes in the certification process which took effect on October 1,
1996 are expected to initially increase backlogs in DOL offices for the next six months while at
the same time substantially reduce backlogs at the State level. This is as a result of an expediting
of the State processing of labor certification applications.
In response to a question, Ms. Marsh-Day said that under the streamlined procedures, the prior
recruitment requirement for expedited handling would allow use of "real world recruitment", i.e.
an employer using normal recruitment methods. She said that if all goes as planned, all backlogs
could end and a "clean application" could take four weeks to process at DOL after two weeks at
SESA. The fast track processing only applies to clean applications, all others go to the end of the
line. Currently the process takes about two years, one year each at EDD and DOL.
Currently in the Region, the denial rate for labor certification is 16%, as compared to 5% two
years ago. She said that many applications are withdrawn prior to denial. She said that she
hopes that the new streamlining process will increase approvals in certain areas and increase
denials where there is no real job opening.
In response to a question as to the impetus for DOL's streamlining effort, Ms. Marsh-Day said
that DOL's Inspector General Report on the labor certification system had provided the big push.
She said that much Regional input had gone into the streamlining effort, and that the SESAs had
input through their respective DOL Regions.
In addition to the October 1 changes in the labor certification process mandated by DOL, EDD is
currently functionalizing its system which is expected to considerably speed up processing time.
A case management program has also been developed, and a formalized employee training
program has been initiated. In the near future, job applicants will be able to access job orders
through the Internet. Employers will be responsible for placing the job orders and reporting back
results of the search to EDD.
Budget/Resources
Ms. Marsh-Day said that while California took a cut of 30-35% in Federal funding for the labor
certification program in FY 1997, other States in the Region took cuts of up to 70%. She pointed
out that the entire program is Federally-funded; there are no State funds used. California thus far,
is the only State to layoff workers in this program. She said that over 90% of the new labor
certification applications in the Region come from California. Budget cuts have resulted in a
reduction in the number of DOL employees in the Region who handle labor certification, from 20
to 15 in the past nine months. The DOL employees include nine specialists and six clerical
workers.
EDD representatives reported that the State backlog is approximately 16,000 cases. The State
lost 43 out of 94 employees in the Alien Labor Certification Unit this week as a result of budget
cuts. The EDD Prevailing Wage Unit was cut from 27 to 17 employees.
2
In response to Commissioner Leiden's question as to the reason for cuts in the program, Ms.
Marsh-Day said that the Employment and Training Administration's focus is primarily in job
training and related matters, with labor certification not being a high priority.
Protecting U.S. Workers
Chair Hufstedler asked if the process protects U.S. workers.
Both Ms. Marsh-Day and the EDD representatives agreed that U.S. workers are not being
protected. They noted that the entire process is less than public. The American public does not
truly see or understand the process.
EDD representatives stated that of all the thousands of alien labor certification requests received
in the past year, only three U.S. workers had been hired. They also said that in many cases, the
alien pays for the required job advertising. The current system is driven by the needs of the alien,
not the U.S. employer as the law was intended.
Fraud
Ms. Marsh-Day acknowledged that there is much fraud in the program. Cases of suspected fraud
are referred to DOL's Inspector General or to INS. Virtually all jobs are already filled. The new
streamlining measures address this by requiring that the employer show that job existed and was
filled prior to the employment of the alien.
Ms. Slaughter stated that virtually all jobs for which orders are received are already filled by an
alien. Many of them are "off-the-books" with no taxes being paid. EDD is looking at ways to
handle this through existing regulations.
Recommendations
Ms. Slaughter recommended that employers be required to pay for the cost of making prevailing
wage determinations. She said that current regulations are worthless. Many applications contain
deliberate misrepresentations and fraud; the use of mail drops for fraudulent applications if far
too prevalent.
Executive Director Martin asked for further suggestions. It was suggested that more of a public
labor market test would legitimize the system.
In response to a question about H-1B visas, the participants agreed that the visa should not be
used for permanent jobs. They noted that there is no current requirement that an H-1B position be
temporary. They agreed that there should be a required recruitment process for H-1B positions
similar to that of the H-2B program.
3