Page images

experienced investigators be assigned to the most complex and serious cases of alleged misconduct and does not ensure that undue influence or an inference thereof, which may result from past or present working relationships between the investigator and the accused employee, is avoided in the investigator selection process. Recommendation 8.7: INS should amend Operations Instruction 287.10 to include the following provisions to establish an effective and efficient system for assigning investigators to misconduct cases: . a. Investigators should not be assigned to handle professional misconduct cases arising in the same region to which they are assigned. b. Investigators who are assigned to handle misconduct cases should be given formal training in Office of Professional Responsibility procedures and techniques prior to handling such cases. c. The most experienced investigators should be given the most complex and serious cases. In determining the complexity and seriousness of a case, such factors as the type of misconduct alleged, the rank of the accused employee, the number of complainants and employees involved, and the amount of any publicity received should be considered. Finding 8.8: The small number of minority-group investigators selected and assigned by INS to handle misconduct complaint cases affects the public's perception of the fairness and impartiality of the investigation of complaints.

Community perceptions of the fairness and thoroughness with which public complaints are handled are important in establishing good community-Ser

vice relations. It is crucial that the community not perceive internal investigation procedures as a coverup in which investigating officers are more interested in clearing their comrades than in fairly investigating the complaint. Recommendation 8.8: INS should increase the number of women and minority-group officers in the applicant pool from which Office of Professional Responsibility investigators are selected. Finding 8.9: INS misconduct complaint statistics are not complete. Statistical summaries of the receipt and disposition of complaints have not been regularly compiled and made available to employees and the public. Complete and accurate statistics on the investigation and disposition of misconduct complaints can foster a sense of professionalism and integrity among INS employees and instill confidence in the public that INS is responsive to all complaints. Recommendation 8.9: INS should compile and publish, at least annually, a statistical summary of all complaints received and their final disposition. At a minimum, these summaries should include the following categories: the citizenship of the complainant, the race or national origin and sex of the complainant, whether the complaint was filed by an INS employee or a private individual, the INS region and district in which the complaint arose, the job title of the accused INS employee, the type of complaint, and the ultimate disposition of the complaint and any sanctions imposed. Such statistical summaries should be available to all INS employees and to the public.


The preceding eight chapters have reviewed the history of American immigration law and policy. This overview reveals the maze of immigration laws, practices, and procedures that confronts immigrants and prospective immigrants in pursuit of the rights, benefits, and privileges represented by the golden door. Unfortunately, in the process of immigrating to and remaining in the United States, persons can be and sometimes are deprived of their constitutional rights as well as certain benefits to which they may be entitled by law. This denial of rights can arise both when persons are unable or not allowed to exercise their constitutional rights and when due process protections are inadequate. Those who suffer from, or are susceptible to, the denial of rights include not only immigrants and prospective immigrants but also American citizens and residents who wish to be united or to remain united with their relatives from abroad.

In examining the practices and procedures of the Immigration and Naturalization Service for administering the immigration laws, the Commission found an agency with enforcement and service functions, two missions often in conflict with each other in the establishment of priorities for carrying out the statutory mandate of the agency. The Commission found that arbitrary exercises of discretion can and sometimes do occur in the handling of applications and petitions for benefits under the immigration laws. The Commission also found that limitations on the rights of individuals, including the right to counsel, the right to be free from unreasonable searches and seizures, the right to an impartial hearing, and the right to bail, can and do occur in

the enforcement of immigration laws. The Commission found an existing enforcement program, known as "Operation Cooperation,” and a proposed employer sanctions enforcement program that offer the potential for employment discrimination against bona fide job applicants and employees, particulary those who are identifiable with major immigrant groups. The Commission also found an agency complaint system in need of improvement for effectively handling public complaints of employee misconduct.

In examining issuance of visas by Department of State consular officers, the Commission found a process that is susceptible to and sometimes does result in arbitrary exercise of discretion, but does not include an adequate review mechanism for consular visa decisions.

In examining the current immigration laws, the Commission found a visa allocation system that has discriminatory effects due to its per-country limitations and colonial quotas. The Commission also found a law that has apparently subjected American citizens and residents to impermissible searches and seizures by local police officers attempting to enforce its provisions, despite their lack of knowledge or training in the intricacies and complexities of immigration law and procedure.

Although the series of amendments to the Immigration and Nationality Act that have been enacted by Congress since 1952 have attempted to provide a fairer and more equitable immigration system, problems in that process (as noted in the findings and recommendations that follow) require further refinement of immigration law, practice, and procedure.


These changes in the immigration system are necessary to ensure that all persons in America receive equal benefits and treatment under that process. To achieve these changes, either statutory enactments by Congress or the promulgation and implementation of new and/or revised regulations by agencies charged with the enforcement of the immigration

law will be required. By adopting these revisions in immigration law, practice, and procedure, America can remove some of the tarnish from its symbolic golden door and move a step closer to ensuring that all Americans become full participants in the free and democratic traditions of our society.

Summary of Findings and Recommendations

Chapter 2



The Current Immigrant Selection System Finding 2.1: The immigrant selection system under the current Immigration and Nationality Act has a discriminatory impact on prospective immigrants from certain countries or dependencies and thus results in the denial or delayed receipt of benefits under that statute for American citizens and resident aliens.

The effect of the per-country limits and colonial quotas under the Immigration and Nationality Act has been to subject intending immigrants from certain countries or dependencies, particularly those countries or dependencies that had previously been disfavored by United States immigration laws, to delays of up to 12 years (as of February 1979) for visas while immigrants from other countries can obtain visas immediately. Repeal of the national origins quota system and the enactment of the 1965 amendments to the McCarran-Walter Act was designed to afford all intending immigrants an equal opportunity to enter the United States on a firstcome, first-served basis without regard to their race or national origin. But instead of eliminating the discrimination caused by the national origins system, these numerical limitations operate to maintain a proportional representation of immigrants from various countries similar to that which existed in the United States prior to 1965.

The colonial quotas have had the effect of limiting the immigration of natives of colonial areas on the basis of their race. Although they have been de

nounced as discriminatory both in intent and in operation, these quotas still exist and are enforced today. The imposition of per-country limitations on the number of immigrants rather than allowing unrestricted migration within the worldwide ceiling has perpetuated the built-in discriminatory effects of previous immigration laws that distinguished among intending immigrants on the basis of their country of origin. Where the intended beneficiary of a relative preference is a United States citizen or resident alien, that American resident correspondingly suffers discrimination on the basis of national origin.

The purpose and intent of the immigration laws are being frustrated by the present annual percountry limitations of 20,000 immigrant visas and colonial quotas of 600 immigrant visas. First, it is apparent that applicants are not being given priority strictly according to their date of filing and "without regard to their place of birth.” Persons from certain countries must wait 8 to 10 years to obtain visas, while persons within the same preference category but from other countries can obtain visas immediately. Second, the variance in waiting periods frustrates the Immigration and Nationality Act's primary purpose—the reunification of families. For example, the brothers of United States citizens who seek to emigrate from the Philippines must wait many years, whereas brothers of United States citizens who wish to migrate from Britain can obtain visas after waiting only 6 months. Recommendation 2.1: Congress should amend the Immigration and Nationality Act to eliminate the per-country numerical limitations and the colonial quotas and provide for admission within the annual country of origin. Although the elimination of these numerical limitations would initially allow certain countries to obtain more than the 20,000 visas currently available because of their already extensive waiting lists, this system, as demonstrated in the appendix to this report, would allow all American citizens and residents an equal opportunity to be reunited with their close relatives abroad, whether they come from Mexico or Hong Kong or Ireland. Thus, the country of origin of intending immigrants and their United States relatives would no longer be considered in determining the length of the waiting period for visas.

Chapter 3

worldwide ceiling of 270,000 on a first-come, firstserved basis in accord with the existing six preference categories.

The decision as to the number of visas to be granted annually is a political decision to be made by Congress. The Commission's concern is only with the nondiscriminatory application of that visa policy once the number of visas is decided by Congress.

If United States immigration laws are to be successful in providing an equal opportunity to all intending immigrants, regardless of their ancestry or place of birth, and in promoting the reunification of families, the current discriminatory system of numerical quotas on the number of immigrants from each country and dependent territory must be abolished.

Abolition of the per-country limitations and colonial quotas would ensure that all persons are treated equally under the laws and would only subject applicants to the worldwide ceiling of 270,000 immigrant visas and the existing six category preference system which allocates visas in the following manner:

First preference: unmarried sons and daughters of United States citizens (20 percent of the annual worldwide ceiling); Second preference: spouses and unmarried sons and daughters of lawful resident aliens (26 percent plus any visas not required for the first preference); Third preference: members of the professions and scientists and artists of exceptional ability, and their spouses and children (10 percent); Fourth preference: married sons and daughters of United States citizens and their spouses and children (10 percent plus any visas not required for the first three preferences); Fifth preference: brothers and sisters of United States citizens and their spouses and children (24 percent plus any visas not required for the first four preferences); and Sixth preference: skilled and unskilled workers in occupations for which labor is in short supply in this country, and their spouses and children (10 percent).

This would enable all prospective immigrants to obtain visas based strictly on their priority date, firstcome, first-served, without consideration of their Nearly 96 percent, or slightly over 11,100 INS employees, were employed in the GS pay system which, in 1978, ranged in grade from GS-1 through GS-18. Under the reorganization of the civil service, those

INS Service and Adjudications Functions Finding 3.1: a. Although minorities and women make up a significant portion of the INS work force, they have little or no participation in policy formulation and decisionmaking within INS.

As of September 1978 the INS work force in the General Schedule (GS) pay system included slightly over 28 percent minority employees and approximately 35.5 percent female employees. Most of those employees were concentrated in the lower grade levels, with 74 percent of minority employees and 88 percent of female employees at or below the GS-8 level. Only 3 percent of minority employees and 2 percent of female employees were employed at or above the GS-12 level. In contrast, white employees dominated the upper management and supervisory levels and held 92.7 percent of all jobs at or above the GS-12 level. b. Few INS employees staffing the Service's contact points with the public have racial or ethnic backgrounds similar to those of many immigrants. This has contributed in part to a strong public perception that persons, particularly those of minority background, are often treated rudely or insensitively by INS employees. Recommendation 3.1:

The INS should continue its commendable efforts to hire minority and female applicants for Service jobs. At the same time, the agency should


positions above GS-15 have now been assigned to a senior executive service.

« PreviousContinue »