U.S. INS Reorganization: Border Inspections and Admission

Border Inspections and Admissions

THE ISSUE: Inspections (the process that deals with decisions on admissions) at our nation’s borders is a microcosm of the problems and challenges the INS faces. Inspectors currently are charged with both enforcing immigration laws and adjudicating applications for non-immigrants and immigrants. However, the inspections process has failed to fulfill either mission. It has not provided timely and consistent service to millions of people filing applications or petitions at our borders, including tourists and business representatives, and has treated juveniles and asylum seekers fleeing from persecution unfairly and cruelly. The inspections process also has failed to enforce immigration laws through nationally set priorities that are applied consistently and professionally. Our nation will continue to prosper only if our borders remain open and welcoming in a manner that is also consistent with our security needs.

BACKGROUND: A major issue in the debate over reorganizing the Immigration and Naturalization Service is how this country treats people who seek entry into the U.S. The vast majority of people who cross our borders are law-abiding people with a legitimate right to enter or exit the United States. With the NAFTA agreement, the increased enrollment of foreign exchange students, and the growing number of countries participating in the visa waiver program, the vast majority of border activity is administrative. For instance, in FY 99 more than 525 million people crossed our nation’s borders: 34% of these people were U.S. citizens; 65% were legal permanent residents, aliens who hold border crossing cards and commute back and forth from Canada or Mexico, and foreign guests who seek to enter our country, sometimes to flee from persecution. Of all the people who sought to enter our country, only .10% (one tenth of a percent) were found to be inadmissible.

Most agree that any successful INS reorganization plan must separate, but coordinate, the department that adjudicates applications by immigrants from the department that deports immigration violators, thereby avoiding conflicts between these two very different functions. In the 106th Congress, Senators Spencer Abraham (R-MI), Edward Kennedy (D-MA) and others introduced a bill (S. 1563) that would have created a proper balance between the enforcement and adjudication function of the inspection process by putting it under the authority of the office of the Assistant Attorney General for Immigration affairs, rather than under the exclusive authority of the enforcement or service bureaus. Both Democrats and Republicans supported S.1563, and during his campaign, President Bush announced that he favored this plan over other plans introduced in Congress. Such plans included H.R. 3918, introduced by Reps. Lamar Smith (R-TX), Harold Rogers (R-KY), and Silvestre Reyes (D-TX), that sought to completely separate inspections from the “service” side of INS and place it in an “enforcement” bureau focused exclusively on enforcement. By all accounts, the predominant division within the Enforcement Bureau will be the Border Patrol.

Why is it bad policy and practice to subsume inspections under enforcement and the Border Patrol, and separate it totally from adjudications?

1. Inspectors are adjudicators with authority to make life-and-death decisions: Inspectors not only “inspect” (i.e. collect evidence) - an enforcement function - they also adjudicate applications for admission. In fact, since the passage of IIRIRA in 1996, the adjudicative authority of inspectors actually exceeds the power once reserved for immigration judges. Inspectors’ decisions to order certain aliens removed are subject to no review, scrutiny, or monitoring whatsoever. Despite this fact, INS Inspections Officers are not clearly defined as adjudications officers and do not receive adequate training on the laws governing the adjudication process. This lack of focus on the adjudication function causes conflicting decisions at different ports of entry, unnecessary delays for law-abiding people, and can result in the improper denial of valid claims.

Moreover, an inspector’s decision to remove someone carries not only the danger of rejecting an individual legitimately seeking admission (and barring them from reapplying for five years) but also the danger of returning asylum seekers and refugees back to their persecutors. While IIRIRA is fatally flawed in its failure to subject inspectors’ decisions to any level of monitoring, review or scrutiny, a poor reorganization plan would make this bad situation even worse. Final decisions on admission should be entrusted to an impartial immigration adjudicator trained in issues of substantive immigration law, due process and refugee protection, not an immigration policeman trained in interrogation, firearms, document fraud, and powers of arrest. Enforcement personnel have a role to play in the inspections process in gathering and presenting evidence on aliens seeking admission. The evidence itself, however, must be weighed by an impartial adjudicator, not by the policeman who gathered it. Attempts to merge the police functions with judicial functions, especially when the stakes are so high, goes against the grain of our constitutional tradition.

2. Putting inspections in enforcement would hinder enforcement functions at the border: The dual missions of INS to enforce immigration laws and also provide meaningful service in the processing of applications for admission has resulted in the failure of both missions. Separating, but coordinating, these two functions would allow enforcement personnel to focus their training and expertise on protecting our national security interests.

3. Putting inspections in enforcement would hinder trade: Inspectors are a lynchpin in the execution of NAFTA and any future free trade agreement. On the Northern and Southern borders, and in airports with flights from Canada and Mexico, the Immigration Inspector is explicitly designated by NAFTA to facilitate the admission of temporary business visitors and professionals from Canada and Mexico. In fact, Canadians applying for admission as TN (treaty-NAFTA professional), B-1 (business visitor) or L-1 (intracompany transferee) nonimmigrants may not even apply for a visa through the usual consular process. These admissions are crucial to maintain our largest trade relationships and to the health of the many U.S. businesses engaged in trade with Canada and Mexico. While there already are serious problems with the quality and consistency of these NAFTA adjudications, under H.R. 3918 and its Border Patrol-Inspections force, the facilitation of international commerce would be lost to enforcement-oriented priorities.

4. Putting inspections in enforcement would be bad for tourism, bad for U.S. Business, and bad for our heritage as a nation of immigrants: Finally, Inspectors are the first U.S. officials encountered by every tourist, businessman and immigrant traveling to the United States. Given the enormous authority vested in inspectors and their power of removal, it is unwise, as H.R. 3918 does, to give the Border Patrol-Inspections force unmonitored and unreviewable discretion over who should be admitted to the US, and who should be turned away and automatically barred from reapplying for five years.

CASE EXAMPLES: There have been numerous reports, like those below, of abuses that have occurred as a result of a border inspection process that ignores the importance of proper adjudications:

Meng Li, an executive with a real estate development company in Beijing, set out for New York in June of 1997 to buy plumbing fixtures. She had a business visa issued by the U.S. Embassy in Beijing. She had used the same visa twice before, in 1996 and February of 1997, entering the United States at Detroit. On her last trip to the United States her plane landed first in Alaska. There an Immigration agent decided that she was trying to enter the county by fraud or with improper documents. She was strip-searched, handcuffed, put in an Anchorage jail and told she was barred from the U.S. for five years. The reason for her detention and denial was an application that she filed the previous winter for permission to work for an American company. That application was first denied. Then in May it was approved, but Ms. Li did not know that - and apparently neither did the INS agent in Anchorage. What’s more appalling is that there is no law against using a valid visa after another has been denied, so long as the person uses it for the designated purpose.

Richard Riley arrived at JFK International airport from Kingston, Jamaica, on January 13, 1998. At the time, he was an 18-year-old freshman at Syracuse University who was returning from a Christmas visit to his mother, who is mentally ill, in Jamaica. Despite the fact that in August of 1997 the INS had granted Mr. Riley’s application for adjustment of status, and issued in his passport a valid stamp as “temporary evidence” of his “lawful admission for permanent residence” (known as an “ADIT” stamp), INS officers harassed and interrogated Mr. Riley, unlawfully detained him for two nights, and subjected him to three separate invasive and humiliating body searches. Mr. Riley was denied the opportunity to call his attorney or the staff at the group home where he had been in foster care. The INS officers had no legal justification for their conduct, but Mr. Riley was not released until after enduring humiliating and brutal treatment by the INS and spending three days in jail.