First Panel: Looking Ahead

Alex Aleinikoff chaired the first panel, Looking Ahead. University of Virginia Law Professor and former INS general counsel, David Martin, spoke with Jeffrey Passel, a demographer and Principal Research Associate at the Urban Institute in Washington on the future of immigration policy making and data management under the Department of Homeland Security. The ideas presented will be released as papers in the forthcoming MPI series, Immigration at the Department of Homeland Security: Making It Work.

In "Who Decides?: The Immigration Authorities of the Attorney General and the Secretary of Homeland Security", David Martin focused on the structure of the immigration functions in the DHS and made a series of suggestions regarding ways in which structural or policy changes might improve and facilitate these functions. He highlighted the significance of DHS structural changes made by Secretary Tom Ridge on January 30, 2003. The changes in immigration functions, as outlined in the Homeland Security Act of 2002 and later revised by Secretary Ridge, separate INS enforcement and services. In the structure of the DHS, the Bureau of Citizenship and Immigration Services (BCIS) has a position separate from the enforcement-mission immigration bureaus. This distinction is intended to make immigration services more prominent and more professional. He noted that BCIS is not headed by an undersecretary, as the immigration enforcement wing is, but rather by a director. A separate position, the Ombudsman, has been designed to ensure that services are provided in a timely and effective manner.

Enforcement functions fall generally under the Bureau of Border and Transportation Security (BTS). Following Tom Ridge's Jan. 30, 2003 reorganization of the DHS, the enforcement functions are subdivided within BTS. The Bureau of Customs and Border Protection (BCBP) is responsible for all enforcement functions that take place at US borders. The Bureau of Immigration and Customs Enforcement (BICE) enforces immigration and customs laws inside the US.

Because there is some overlap between enforcement and service, provision has been made (under the Homeland Security Act of 2002) for a Director of Shared Services who maintains an independent position and reports directly to the Deputy Secretary of Homeland Security, as do the Ombudsman, the Director of BCIS and the Undersecretary of BTS. Additionally, some immigration functions such as the Executive Office for Immigration Review (EOIR) will remain under the jurisdiction of the Department of Justice. The Office of Refugee Resettlement remains in the Department of Health and Human Services. The Department of State maintains operational control over consular affairs and the issuance of visas. BTS is able to veto visa decisions, though not to issue visas and visa policy will be set at DHS. The Bureau of Border Security (BBS), Customs, Agricultural Inspection Services, and the Federal Protective Services were the agencies most affected by Ridge's January 30th reorganization of the BTS and the creation of the BCBP and BICE. It is important here to note that Ridge's reorganization powers, which carry a 60-day notice requirement, are uniquely broad and relatively rare.

Dr. Martin's suggestions focused on addressing immigration policy making. He acknowledged that INS had incompatible, confusing structures throughout the agency. The new system is designed to resolve this weakness, but because it does not provide for a position equivalent to the INS Commissioner, it ignores the importance of policy in immigration functions. The DHS structure is designed to focus on the execution of immigration tasks, so each agency and bureau is function-oriented. However, the strength of this approach is compromised by an inability to incorporate ever-shifting policy and to recognize that policy issues often cross boundaries between enforcement and services. Moreover, although each bureau has a Chief of Strategy and Policy, it is unclear who has final responsibility for immigration policy and functions. As a result, the Deputy Secretary will have to become the de facto Commissioner. A better solution, Dr. Martin argued, would be to use the Secretary's reorganization powers to create a Chief of Immigration Policy, to whom the Director of Shared Services and each Chief of Strategy and Policy would report. The same is true of legal advisors who, under the current structure, are limited to each bureau and who lack coordination. A General Counsel for Immigration, in coordination with the Chief of Immigration Policy, would provide an apparatus for unified and uniform decisions and their implementation.

Finally, the role of the Department of Justice remains unclear. The Immigration and Naturalization Act (INA) places the majority of immigration authority in the Attorney General rather than the INS Commissioner. The Homeland Security Act of 2002 transfers powers from the Commissioner to the Secretary of the Department of Homeland Security, with the result that the Attorney General retains much of the final authority over functions that are no longer administered by the Department of Justice. Other functions, such as EOIR, remain fully in the Department of Justice. While this split enforcement model has worked elsewhere, for example in the Occupational and Safety Hazards Administration (OSHA), it seems likely that in the event of a disagreement between the DHS and the DOJ, the current arrangement would become odd and unstable.

Jeffrey Passel presented "What do we need to know?: Implications of Homeland Security for Immigration Data" based on a paper co-authored with Michael Fix. Dr. Passel emphasized information flows within the INS and possible improvements under the DHS. INS data has been criticized as inconsistent and unhelpful by academics, demographers, and policy-makers. Its failure to keep track of individual entries and exits is one instance in which long-standing faults have suddenly attracted wide-scale attention. The new security focus provides an opportunity for improvement in the collection and availability of immigration data.

For decades, studies of immigration statistics have found recurrent problems. In the aftermath of 9/11, for instance, the INS was unable to produce information about the number of legal non-immigrants in a timely manner. The 2000 Census highlighted poor immigration estimates when it found the population had grown more rapidly than expected and these discrepancies were due in part to poor measurements of both documented and undocumented immigrants. Both better data and better analytic capacities are sorely needed.

In light of this, Dr. Passel considered the types of information that we need to create an accurate picture of migration to and from the US. Immigration data must reflect, most broadly, migrant stocks and flows, "who is where", the legal status of migrants, and flows into and out of the country (by legal status). More specifically, these data should be broken down by age, sex, and other categories. Moreover, there is currently very little data, if any, on questions such as what kinds of waiting lists exist for visas and green cards, and how many people come through programs such as family reunification and sponsorship. Finally, more data is necessary on the impact of migration on US society and on the assimilation of migrants into the US.

Unfortunately, INS data collection systems have not been designed to address these issues. For instance, they do not reflect the difference between the number documents issued and the number actually used. The INS has calculated the total number of naturalizations annually, but not by group, and has collected information on the number of border crossings but not on how many people crossed the borders. There is almost no data on legal immigrants who leave the country. Finally, there is a regular assessment of unauthorized migration to the US but it has never been made standard and routine. A major reason behind these data gaps is that the INS has never operated as a statistical agency but has generated statistical data only as a by-product of administrative needs. There has been some progress in recent years: the Current Population Survey (CPS) and New Immigrant Survey now provide data on the foreign-born.

Security requirements now demand tracking individuals and their migration histories in a way that is also useful for statistical study and analysis. At points when immigrants come into contact with immigration agencies, there should be procedures in place for collecting sample information. Among the challenges of extensive data collection is the need for data systems that are designed with analytic functions in mind. A related difficulty is how to move statistical information from each immigration enforcement/service agencies to Shared Services. The transfer of immigration functions to the DHS, therefore, represents new opportunities for the collection of statistical data but its success is far from certain. The benefits of accomplishing these statistical goals include improved security, improved allocation of funds for welfare and social services, and improved understanding of migration flows. Understanding these flows is fundamental to population forecasting and policy decisions. Detailed migration numbers will benefit state and local governments as well as the federal government.

The talks were followed by a question and answer session.

Q: What is the place of refugees in the Department of Homeland Security? Martin: It is not clear that responsibility for refugees has been fully thought out. The refugee program has been decimated since 9/11 and it will be important to see how the whole program fits structurally and with other departments.

Q: Who will issue visas? There seems to be ambiguity between the DOJ, DHS, and DOS. Martin: The Department of State will continue to issues visas but DHS has restrictive powers because the consular officers are seen to have displayed insufficient caution. Canada has tried a similar system.

Q: Who will make decisions about Temporary Protected Status and other programs up for renewal? Martin: The transition of immigration functions to the DHS has occurred before detailed plans have become available. It is clear that decisions are made by the people who made those decision in the INS but it is not always clear which bureau has responsibility for those decisions.

Q: Because the DHS has such a particular security function, information gathered by the department can play an ambiguous role. Much as information might be necessary, there is also a great deal of apprehension about the mission of the agency, the ways information might be used, and the precedents for gathering information about individuals that may be set by the DHS. Passel: These are valid concerns. In terms of data collection, very little new information is necessary to make the data much more useful. It is also a question of the ways in which data is arranged and analyzed to make it more revealing, rather than just a question of gathering more information.

Second Panel: What Happens Tomorrow?

The second panel, What Happens Tomorrow?, was originally scheduled to include a senior DHS official who was unable to attend. Instead, former INS Commissioner James Ziglar spoke with Doris Meissner and shared his experiences with INS restructuring proposals.

James Ziglar became INS Commissioner in August, 2001, with no previous immigration experience. A major feature of the Bush presidential campaign had been INS reform focused on processing the application backlog and on dividing security and enforcement functions into two agencies, much as they are now. The Abraham-Kennedy proposal, in contrast, recommended one agency with two divisions. Determining that two agencies would raise thorny problems of competition and poor cooperation, Mr. Ziglar said he supported a reorganization of the agency that separated service and enforcement but kept both sides intact and reporting to a single head. Moreover, he emphasized that the different approaches of service and enforcement in practice worked to balance one another out.

Ultimately, Mr. Ziglar's restructuring proposal, which drew on Doris Meissner's plan, was submitted on September 10, 2001. Although the events of the following day shifted the focus from INS restructuring, the proposal provided a means of working against some of the criticism leveled at the INS. The proposal was revised and sent to Congress in November, 2001. Not long afterwards, it became clear that appropriations and legislation were such that the plan for INS restructuring was unlikely to succeed. Events throughout the fall and winter of 2001 worked against the INS. He noted widespread and damaging misperceptions about INS performance surrounding the 9/11 terrorist attackers. In this context, Senator Joe Lieberman's Homeland Security proposal benefited from the negative press surrounding INS, as well as from a great deal of prior momentum and planning.

An audience member then asked a question regarding terrorism and the perception that illegal immigration and overstays are a serious problem. Ziglar: If Congress were serious and committed to the INS, these challenges would not have grown as they have. INS has been consistently under-resourced and constrained. If the priority is terrorism and criminal aliens, focusing on undocumented laborers (who have overstayed their visas) is not useful. The problems are not equivalent. Moreover, in terms of resources, to fulfill completely the policy and legislative missions of the INS would have required a 2010 budget of at least $46 billion. In fact, the INS budget was ever only a fraction of that.

Third Panel: Looking Back: Reminiscences with "Formers"

In the closing panel MPI co-director Demetri Papademetriou hosted James Ziglar, Bruce Morrison, Lavinia Limon, and Doris Meissner in a discussion titled Looking Back: Reminiscences with "Formers".

Starting the discussion, Ms. Meissner described the performance of the INS as uneven. She noted that the agency, despite its portrayal as generally hapless, functioned extremely well in times of crisis. INS employees worked hard to resolve difficult situations as rapidly as possible. In contrast, daily management of the agency was very frustrating. This unpredictability and inconsistency, rather than incompetence, will be a challenge for DHS management and may be exacerbated by the fragmentation of the agency's functions. On the other hand, however, she felt that the most successful divisions of INS had always been those where the tasks and responsibilities were most clearly defined and delineated. To that extent, the DHS structure may facilitate improvement. She concluded with a fond description of naturalization ceremonies. Ms. Meissner noted that the diverse settings and character of these ceremonies make them truly reflective of the most positive aspects of the INS and its history.

James Ziglar followed with praise for the hard work and responsiveness of INS employees. He noted, too, that the prevalence and virulence of public criticism of the agency took a toll on the employees, creating a sense of resignation that was ultimately destructive. He brought up a number of concerns for the future of immigration policy in America. First, he felt that the creation of the Refugee Corps represented only an initial step and that more concrete action needs to be taken to alleviate the difficult positions in which refugees in the US are placed. Moreover, he urged the creation of a regularization program for out-of-status workers in the US. While amnesty programs are ineffectual, he said, it is important to create legal avenues and long-term strategies of regularization. He emphasized assimilation and citizenship as aspects of migration that should be highly valued by both US society and by immigration agencies. Finally, he argued that border policies must be considered not only in light of the war on terror, but also in terms of the impact on visitors, foreign policy, and business.

Former Chairman of the House Judiciary Subcommittee on Immigration and International Law, Bruce Morrison described his role in immigration policy and described the centrality of the "immigration story" to the history of the US. Discussing America's complicated relationship with immigration, he pointed to the ways in which immigration has always been difficult for us to deal with. Government immigration agencies, like all government agencies, are always designed to deal with "problems" but are also greeted with a great deal of distrust and skepticism. Describing his experiences serving on the Commission on Immigration Reform, Morrison said that underlying immigration debates in the US are larger arguments about assimilation and the idea that, fundamentally, immigration is a positive force that helps the country to grow, to remain culturally vital and enhances the entrepreneurial spirit. He concluded by remembering Barbara Jordan [Chair of the Commission on Immigration Reform, 1993-1996].

Lavinia Limon, the last of day's panelists, recounted her experiences as Director of the Office of Refugee Resettlement (DHHS) during the Clinton administration. She discussed the concrete ways in which the unpredictable character of INS impacted refugee processing and administration. She praised INS performance during legalization initiatives in Los Angeles and emphasized that the problems INS has faced regarding undocumented immigrants have, despite the criticism, often worked to the advantage of employers, employees and the American public. Refugee advocacy work in the post-9/11 US has demonstrated the importance of protecting vulnerable populations, she said. At the same time, a greater degree of confidence in immigration administration would make it possible to stand up to critics of immigration and refugee programs and to present a strong case against those who argue that refugee and immigration programs represent a threat to our security.