Most Reverend Thomas G. Wenski
Auxiliary Bishop of Miami
Chairman, United States Conference of Catholic
Bishops' Committee on Migration
The House Judiciary Subcommittee on Immigration,
Border Security, and Claims
June 27, 2002
Mr. Kevin Appleby
Director, Migration and Refugee Policy
U.S. Conference of Catholic Bishops
June 27, 2002
I am Kevin Appleby, Policy Director of the United States Conference of Catholic Bishops (USCCB) Migration and Refugee Services. I offer this testimony today on behalf of Bishop Thomas G. Wenski, auxiliary bishop of Miami and chairman of the U.S. Conference of Catholic Bishops Committee on Migration.
My testimony outlines the views of the U.S. Catholic bishops with regard to the Bush Administration's recent proposal to reorganize the federal government and create a new Department of Homeland Security. Specifically, my testimony focuses on the Administration's proposal to transfer the functions currently performed by the Immigration and Naturalization Service (INS) and the Department of State to the proposed new Department of Homeland Security.
Through the USCCB and dioceses across the nation, the Catholic Church in the United States provides a myriad of services to immigrants, asylum-seekers, and refugees throughout the country. More than 100 dioceses nationwide resettle approximately 18,000 refugees per year. The Catholic Legal Immigration Network, Inc. (CLINIC) provides immigration-related services to dioceses across the nation and to thousands of legal immigrants each year.
Let me state at the outset of my testimony that the Catholic bishops are not opposed to the creation of a new Department of Homeland Security. Indeed, if implemented correctly, one could envision that such a department would help improve our nation's ability to detect and prevent both foreign and domestic threats to the security of the public.
In our testimony today, we will discuss four principles that we believe should guide Congress and the Administration on the issue of the placement of immigration functions within a homeland security department:
- First, we believe that Congress and the Administration must remember that the United States is a nation of immigrants and that, as Ranking Member Shelia Jackson Lee has often reminded us since that horrible day of September 11, 2001, "immigration does not equate with terrorism."
- Second, we believe it essential that Congress and the Administration work closely and deliberately to ensure that any new Homeland Security department does not inherit functions which are so far outside its mandate that they distract the new department from its ability to accomplish its mission of protecting us from terrorism.
- Third, we believe it is important to ensure that vital functions not related to homeland security that currently are being performed by various departments and agencies of government be preserved and not be unnecessarily transferred to the new department.
- And fourth, while USCCB believes it is preferable that the current functions of the INS remain wholly within the Department of Justice, we will outline specific immigration-related functions that we believe could be transferred to the new Department of Homeland Security without unduly harming our nation's immigration service and enforcement functions, and provide a framework for how the functions that remain behind in the Department of Justice should be structured.
A Nation of Immigrants
The Catholic bishops of the United States come to this debate deeply concerned about the consequences that the proposals to reorganize the nation's immigration functions would pose for the nearly one million immigrants, refugees, and asylees who are admitted into the United States each year, as well as for the millions of foreign-born United States citizens and lawful permanent residents already inside the United States who came here over the years and who occasionally need to obtain services from the INS. These individuals have greatly contributed to the economic, social, and cultural fabric of our nation. They, along with the many other legal short-term workers, students, and visitors to the United States, currently depend on the INS to operate efficiently and with justice in adjudicating their immigration benefits, which include such items as adjustments of status, naturalization, employment authorization documents, and other such service-related instruments.
The Specter of an Overburdened Department with Mission Overload
The Administration's proposal recommends that the entirety of INS's current functions be transferred into the Department of Homeland Security under one of four divisions, entitled "Border and Transportation Security." Immigration enforcement and immigration services would be separated, but it remains unclear how the two responsibilities would interact and if the addition of other enforcement functions would complicate such effective coordination. We recommend against this construction, and support keeping most functions of INS out of the new department.
We fear that, unless Congress acts to modify it, the inclusion in the President's proposal of all of the nation's immigration functions in the new Department of Homeland Security could create a department that is over-burdened with immigration functions that have nothing to do with homeland security. This, in turn, could present grave dangers over time to both homeland security and immigration.
One of the fundamental concerns expressed by public officials and other voices in the INS reorganization debate was the problem of "mission overload" within our nation's immigration function. The enforcement and implementation of immigration law and the adjudication of large numbers of visa, adjustment of status, and naturalization requests, especially during this period of unprecedented immigration, represents a broad mission which is not easily handled under current resources and structure of the INS. Handing these broad duties to a new department will distract from its national security mission or diminish our immigration function because of neglect.
Harm to Immigration Functions
We also fear that transferring all of the functions of the INS, which is an already over-burdened agency, to a new Department of Homeland Security that has a wide-ranging set of unfocused missions could do grievous harm to immigration enforcement, immigration services, and even to immigration and immigrants, themselves.
- Harm to Immigration Enforcement. The great bulk of the nation's immigration enforcement needs and efforts have nothing to do with terrorism. Instead, they relate to such mundane but important functions as preventing the entry of undocumented immigrants on our Southwest border, enforcing our laws against the hiring of undocumented immigrants, detaining criminal aliens, and removing inadmissible aliens from the United States. In response to the September 11, 2001, terrorist attacks, Congress, with this Committee's leadership, passed two new laws to help the INS in these efforts. They include the USA PATRIOT Act, which was enacted into law just weeks after the September 11, 2001, terrorist attacks, and the more recently enacted border and visa security bill, enacted into law on May 14, 2002.
While we disagreed with some of the provisions in those laws, we note that existing agencies and bureaus of government have only now begun to implement them. The border and visa security bill requires biometric visa identifiers, more efficient information sharing between agencies, and background checks for certain arrivals. This law seeks to ensure that information between the new agency and the INS is up to date and available at the point a visa is being considered for approval. It also seeks to ensure that individuals cannot use false documents and that border agents and INS inspectors are working in concert to identify and detain potential terrorists. The USA PATRIOT Act gives the Department of Justice the ability to detain persons for up to seven days based upon a standard of "reasonable suspicion," a standard established in the USA PATRIOT Act which permits the government to detain for up to 7 days an individual suspects, on that basis, of terrorist-related activity. This will allow border enforcement officers as well as INS enforcement officials to immediately detain someone without receiving approval from a magistrate.
Taken together, the provisions of the Border Visa and Security Act and the USA PATRIOT act give the new agency ample tools to protect the public from further attacks. The laws take into account that multiple agencies are charged with the mission of protecting the American public and that information and intelligence sharing are the key to prevention.
One could reasonably argue, however, that moving all of the INS's enforcement functions from the INS to a new department with a disparate mission will interrupt the implementation of the not only those two new laws, but of all of the enforcement efforts that have long been undertaken by the INS and its components. Moreover, placing the disparate functions of national security and immigration services together will not make the nation safer if these tools are misused and proper intelligence gathering and information sharing is not achieved.
- Harm to Immigration Services. Under the Administration proposal, immigration services would be placed within a Border and Transportation security division of the new department and would compete for prioritization with such functions as the United States Coast Guard, United States Customs Service, the Border Patrol, and Transportation Security. We fear that it is unlikely that immigration services, as one of the few non-enforcement functions, would receive the attention it deserves in such a structure. Moreover, we are concerned that the structure proposed by the Administration would wind up starving immigration services of funding it needs to reduce already unacceptably large processing backlogs. The result could be a service function gradually diminished over time, increasing waiting times for service and thereby limiting the number of immigrants, asylum-seekers, and refugees admitted into the country.
Just as importantly, placing the immigration services functions into an organization with a paramilitary culture, designed to keep out terrorists, makes absolutely no sense. The vast majority of people seeking immigration benefits on a day-to-day basis are already in the United States. They are lawful permanent residents seeking naturalization. They are nonimmigrants seeking adjustments of status. They are residents seeking to obtain employment authorization documents. They are individuals, already in the United States, seeking the protection of asylum. They are young girls or women, already here, seeking protection from traffickers or smugglers. They are unaccompanied minors seeking protection and support.
- Harm to Immigrants and Immigration. Enactment of the Administration's proposal without significant change to its immigration provisions could diminish and significantly limit our nation's historic commitment to newcomers to our land, and it could fundamentally change how our nation perceives and treats immigrants.
Indeed, the transfer of all of the INS's functions would ignore over two hundred years of evidence that a generous immigration system which welcomes the foreign-born to our shores serves, not undermines, our nation's best interests. It also would send a stark and clear message to the world that the United States views foreign-born persons, generally speaking, with suspicion and fear and not as neighbors who bring skills, culture, and faith to benefit our communities, towns, and cities.
Placement of all INS functions into the new Homeland Security Department also could prove detrimental to the civil rights of persons who "look or sound" foreign. Under the current law, the INS is contained in a department that also has the protection of civil rights as one of its missions. Indeed, there currently is a unit within the Department of Justice that specifically is devoted to preventing alienage based discrimination against those who "look or sound" foreign or who have "foreign sounding" names. If the entirety of the INS's immigration functions are transferred from the Department of Justice to the new Department of Homeland Security, we fear there would be no possibility of a seamless integration of immigration and civil rights concerns, given the necessary focus on terrorism of the new department.
Moving all of the functions of the INS into a Homeland Security Department could fundamentally alter how our nation views and treats immigrants for years to come. We believe that transferring the entirety of INS's current functions into the Department of Homeland Security, a new department whose primary mission would be to protect the United States from terrorist attacks, could fundamentally alter long-standing U.S immigration policy. Under a new Department of Homeland Security, it is likely that the overall mission of rooting out terrorism would overwhelm any immigration-related mission of welcoming immigrants or other visitors who come here for employment, tourism, or family reunification purposes. It also could undermine our nation's traditional role as a safe haven for refugees and asylum-seekers. We fear that, over time, each of these groups of valid and legal newcomers would, instead, be viewed through a "terrorist" lens. Finally, placing INS within a Homeland Security agency sends a message both abroad and at home that immigrants should be feared and not welcomed as contributors to our economic, social, and political life.
The immigration function of our nation should receive higher priority with regard to the level of authority and resources, not less. At this point in our history, managing our nation's immigration policy and admitting and monitoring the whereabouts of nonimmigrants is a Herculean task. Instead of burying these important functions within a new, wide-ranging department, they should receive higher prominence and resources. The head of a new Homeland Security department will be measured by how he or she protects the public from terrorism, not by how he or she manages immigration services. We fear that despite the best of intentions, it will be exceedingly difficult to accomplish both of these missions if all of the nation's immigration functions are contained within the Homeland Security Department.
Our Proposed Solution
The U.S. Catholic bishops recommend against the transfer of the entirety of the functions of the INS to the new Department of Homeland Security. Instead, we believe the best course is for the INS to remain completely outside of the Department of Homeland Security, but reorganized. Both the House and Senate had taken thoughtful and deliberate steps to do this prior to the release of the Administration's homeland security reorganization proposal. Earlier this year, the House of Representatives passed H.R. 3231, some portions of which we supported. That measure left the functions of the INS in the Department of Justice, dispersing its functions to an enforcement bureau and a service bureau. More recently, the bipartisan leadership of the Senate Judiciary Committee crafted and introduced S. 2444, legislation based on that same basic principle, which we believed provided an excellent basis for reform of the nation's immigration functions.
However, should Congress decide to move the debate beyond the parameters of H.R. 3231 and S. 2444 and, instead, fashion legislation patterned after the model presented in the President's homeland security reorganization proposal, we recommend an approach which would transfers to the new Department only those immigration functions which are necessary to assist in the detection and prevention of terrorist threats. These functions could include such functions as the operations of the U.S. Border Patrol, coordination of border and port enforcement, and counterterrorism intelligence and investigations operations. It also could include the transfer of the enforcement powers granted the Department of Justice by the U.S PATRIOT Act, legislation enacted by Congress earlier this year specifically to handle terrorist threats.
We strongly recommend against transferring any of the INS's service and adjudication functions to the new Department, especially the handling of unaccompanied alien minors, and we oppose the transfer of certain enforcement functions that are unrelated to terrorism to the new Department. Let me take this opportunity to detail the specifics of our alternative proposals. A chart detailing our recommendations can be found in Appendix A.
As I have stated, we have no position on the President's initiative to create a new Department of Homeland Security, designed to coordinate our government's resources and information to deter attacks on the home front. However, we do not believe that the entirety of the functions currently exercised by the INS should be placed within the new agency in order to achieve this goal. Instead, we believe that specific offices and responsibilities which focus more directly on terrorist threats should be transferred to the new Department, with the establishment of a coordinating office within the new Department to work closely with on information-sharing and joint interests and initiatives. Under our proposal, immigration services, as well as certain non-terrorist related immigration enforcement functions, would remain in the Department of Justice along the lines of a structure outlined in S. 2444 and, to a lesser degree, H.R. 3231.
Basic to this approach is the notion that the new Homeland Security Department should receive the enforcement functions which oversee our ports of entry and border points as well as intelligence and investigation functions necessary to properly inform these enforcement responsibilities. In most cases, Homeland Security enforcement personnel would the first point of contact for arrivals entering both legally and undocumented. In addition, under our proposal, the new department would receive the enforcement responsibilities, including detention and removal, pursuant to the USA Patriot Act, which permits the government to detain would-be terrorist for up to seven days based upon a reasonable suspicion of terrorist-related activity. In our view, these functions would provide the new department the necessary tools to detect and root out potential terrorists who enter the country.
INS should remain in the Department of Justice with a new structure
In order to best accomplish the multiple tasks incumbent upon our nation's immigration function, immigration services and certain immigration-related enforcement responsibilities should remain within the Department of Justice and recast along the lines of S. 2444, INS restructuring legislation introduced by Senator Kennedy and Senator Brownback, and, with some necessary modifications, H.R. 3231, produced by this Committee and passed by the full House of Representatives. The structure of S. 2444, in particular, would give immigration priorities more visibility in the government, allow for better coordination between services/adjudication and immigration enforcement, and ensure that a strong, central authority supervises these responsibilities in an efficient manner. In such a structure, policy decisions would be more fairly balanced, taking into account often competing or conflicting enforcement and service priorities. Moreover, both S. 2444 and H.R. 3231 includes provisions which ensure that appropriate resources are available for immigration services, including a "firewall" against the transfer of fee money to enforcement priorities.
Perhaps the most important aspect of both S. 2444 and H.R. 3231 is the creation of an Associate Attorney General for Immigration Affairs position to oversee the immigration affairs of the nation. Such a position higher in the Department of Justice would have more visibility and weight within the government, allowing immigration concerns more of a voice within the inner deliberations of government. A higher level position such as this also would be able to work on a more equal level with the Secretary for Homeland Defense in resolving conflicts between the two agencies.
Within the structure outlined in both S. 2444 and H.R. 3231, an enforcement bureau is created to oversee the responsibilities of enforcing our immigration laws, including the detention and deportation of criminal aliens, border and interior enforcement, and intelligence functions. It is our view that certain non-terrorist enforcement functions should remain in the Department of Justice so that services and immigration enforcement are more closely coordinated. This would include the detention of non-terrorist aliens, such as asylum-seekers, indefinite detainees, and certain criminal aliens. Other enforcement operations, such as work site enforcement or other types of interior enforcement, would also remain within the Department of Justice in a new immigration agency.
Again, the most important aspect of our proposal is the fact that the Department of Homeland Security would retain certain enforcement functions related to potential terrorists, including border and port enforcement and any detention or removal relating to suspected terrorists. In addition, we recommend the creation of offices within both the Department of Justice and the new Department of Homeland Security to coordinate enforcement responsibilities. These offices also would coordinate information regarding the issuance of visas and other immigration benefits.
Office of Children's Services
Both S. 2444 and H.R. 3231 would create an Office of Children Services to oversee the handling of the more than 5,000 unaccompanied alien minors in the nation. We believe that this office and the related provisions pertaining to children in S. 2444 should be retained, provided that immigration services and enforcement remain in the Department of Justice. Should all of INS be moved to the Department of Homeland Security, we recommend that a new office be placed within the Office of Refugee Resettlement within the Department of Health and Human Services.
The proposed Department of Homeland Security would be poorly equipped to assume custodial care of unaccompanied children, lacking specific child welfare expertise or experience in handling children. The INS has been increasingly criticized for its handling of children and a department with an even more focused national security mission would also place child welfare principles as a low priority. The Office of Refugee Resettlement (ORR) in the Department of Health and Human Services (HHS) has the child welfare expertise to properly care for these vulnerable children. The office already handles unaccompanied refugee minors and child trafficking victims.
Executive Office for Immigration Review
The Administration proposal fails to detail whether the Executive Office for Immigration Review (EOIR), currently an entity outside INS in the Department of Justice, also will be folded into the new department. EOIR is a regulatory agency which is charged with the conduct of exclusion, deportation, removal, and asylum proceedings. It consists of two adjudicatory bodies, the immigration courts and the Board of Immigration Appeals (BIA).
Under our proposal, EOIR should remain within DOJ but outside a new immigration affairs agency in order to preserve its independence from the policy and detention and removal responsibilities of the agency. Should the entirety of INS be placed within the Department of Homeland Security, we would support the creation of an independent commission for EOIR in order to totally remove the strong conflict-of-interest which would exist between EOIR and a Homeland Security Department. Underlying this position is the principle that judicial functions should remain independent in order to ensure the fair and objective interpretation of U.S. immigration and asylum laws.
In summary, Migration and Refugee Services of the United States Conference of Catholic Bishops does not oppose the creation of a new Department of Homeland Security. However, we recommend against transferring the entirety of the INS's current functions to the new Department. Instead, we believe that the functions of the INS that are more appropriately considered national security-oriented should be transferred to the new Department, with the remaining service and enforcement functions remaining behind in the Department of Justice, reorganized along the lines of S. 2444, which is pending in the Senate, or, with modifications, of H.R. 3231, which the House of Representatives passed earlier this year. With regard to unaccompanied alien children, should Congress decide to leave immigration service and enforcement functions in the Department of Justice, we would recommend that an Office of Children's Services be established within the Department of Justice to look after such children's care and custody issues. On the other hand, should Congress transfer all of the current INS's functions to a Department of Homeland Security, we would recommend transferring responsibility for the care and custody of unaccompanied alien children to the Office of Refugee Resettlement in the Department of Health and Human Services.
At stake in this debate is how our nation, which has been built on the back of immigrants, will view and treat immigrants in the future. Under a new agency with a mission to protect the public from terrorist attacks, it is likely that immigrants will be viewed as suspect and feared. In addition, immigration could be reduced over time because of the paramilitary and intelligence culture which would pervade the new agency, leaving immigration services concerns as a low priority.
Mr. Chairman, we ask the subcommittee, the committee, and all members of Congress to consider our recommendations carefully and to consider the Administration's proposal in a deliberate and thorough manner. We fear that, unless modified, the Administration's proposal could drown the new Department of Homeland Security in a sea of unrelated missions, diverting its attention from the enormously important task of protecting us from terrorism; weaken immigration enforcement efforts; impair the provision of immigration services; and have an adverse impact on law-abiding immigrants for years to come.
Thank you for your consideration of our views.