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exert greater effort to place minorities and women in policy and decisionmaking positions of the agency. b. The INS should also make a concerted effort to employ more bilingual persons, particularly members of major ethnic immigrant groups such as Hispanics and Asians, at its information counters in order to provide better service to members of those communities. Finding 3.2: INS contact points with the public are understaffed and are not equipped to provide adequate service and information to many persons. Recommendation 3.2: a. INS should devote more resources to staffing its contact points with the public to provide adequate service and information to all persons. b. INS should provide all employees whose jobs involve contact with the public with training in human relations as well as training in the complexities of immigration law and INS procedures. This training should be provided not only for new employees prior to their placement on the job but also for present employees as part of a continuing inservice training program. Finding 3.3: No effective procedure currently exists through which applicants can obtain information on the status of their cases.
INS loses many applicants' files mainly because of its ineffective manual retrieval filing system. While INS, in recognition of this problem, has begun development of a computerized system for tracking and retrieving files, most INS offices are not computerized Recommendation 3.3:
INS should develop and implement specific procedures by which applicants can obtain accurate information concerning the status of their applications. b. INS should modernize and make more efficient its system for filing applicants' records. INS should computerize all of its offices to enable its employees to locate files and records quickly. Finding 3.4: Large backlogs exist in the number of applications for immigration benefits awaiting adjudication by INS.
Long waiting periods, which can stretch from several months to several years, often interfere with the reunification of families, including those of United States citizens. Although the Service has tried to reduce the backlog, a large number of applications still await adjudication.
Recommendation 3.4: Congress should appropriate additional resources to increase INS adjudications staff positions. Finding 3.5: The absence of clear Service guidelines and vigilant firstline supervision results in inconsistent or erroneous decisions under the extensive discretionary authority of INS adjudicators to grant or deny applications. Moreover, in such areas as the public charge provision where some guidelines exist, INS adjudications are often perceived by the public as inconsistent. To reduce arbitrary exercises of discretion by INS adjudicators, the INS has recently adopted a Service-wide program for quality control of adjudications. Recommendation 3.5: To ensure effective quality control of adjudications under its new program, the INS should: a. Publish precedent decisions and unusual or difficult cases as they arise and make them available to all adjudicators. b. Hold supervisory adjudications officers responsible for reviewing and ensuring the accuracy and consistency of all decisions.
Provide supervisors, upon appointment, with further training in immigration law and supervisory techniques to enable them to review all decisions adequately. d. Implement guidelines clarifying Service policy on difficult sections of the law, such as the public charge provision, specifying the proper interpretation of the law and the evidence to be considered in making such determinations. Finding 3.6: The combining of both adjudicative/service and enforcement responsibilities in INS results in a subordination of the service function to the enforcement function.
Although INS has established satellite offices in Los Angeles and New York to provide information and services to the public in an attempt to separate its adjudicative/service functions from its enforcement responsibilities, problems continue to exist at other INS offices. Recommendation 3.6: a. Congress should create a Border Management Agency within the Department of Treasury and then transfer the INS enforcement function to that agency. Such legislation would enable INS to concentrate all its resources on its service activities and thereby provide the public with improved service.
b. INS should also totally separate its service functions from its remaining enforcement activities, preferably by establishing more satellite offices.
fered from an abuse of consular discretionary authority often have no redress from that error.
The consequences that can arise from a visa denial mandate a more formalized review process that provides for greater due process. As the Board of Immigration Appeals stated in the Matter of S- and B-C-91& N 436, 446 (1960) (quoting the Report of the President's Commission on Immigration and Naturalization, January 1, 1953, p. 177):
Shutting off the opportunity to come to the United States actually is a crushing deprivation to many prospective immigrants. Very often it destroys the hopes and aspirations of a lifetime, and it frequently operates not only against the individual immediately but also bears heavily upon his family in and out of the United States.
The State Department and the Consular Visa Process Finding 4.1: It would be sound procedural practice for all consular officers to prepare written memoranda of their decisions on visa applications that set forth fully their conclusions and the evidence supporting their conclusions. In cases where the decisions of the consular officer are challenged, the written memoranda would facilitate the review process. Recommendation 4.1: The Secretary of State should promulgate regulations that require each consular officer to record in written memoranda a detailed statement of the reasons for the decision on each visa application. Finding 4.2: The current Department of State process for the review of consular visa denials does not adequately protect aggrieved parties from improper exercises of consular discretionary authority.
Although the denial of a visa effectively bars a person from legally entering the United States, the visa application process does not contain adequate procedural safeguards to ensure that visa applicants receive a full and fair hearing on the merits of their case and that the final decision is free from an arbitrary exercise of discretionary authority by a consular officer. Except for the current, limited, managerial-type review, there is no other review for certain exercises of consular discretionary authority. Factual determinations by consular officers, no matter how arbitrary, are not reviewable by the Secretary of State or administrative designees of the Secretary or through the judicial process.
Even conscientious and dedicated consular officers can make mistakes of law or fact. Both the Department of State and the Consular Officers' Association have recognized and admitted that the performance of consular officers is, at times, uneven. Notwithstanding, aggrieved parties who have suf
The adoption of a more formal system of review would make consular officers accountable for their decisions and would be consistent with the current appellate practices of other Federal agencies. Recommendation 4.2: Congress should amend the Immigration and Nationality Act to vest the visaissuing authority in the Secretary of State and to further authorize the Secretary of State to create a Board of Visa Appeals,2 similar in function to the Board of Immigration Appeals.
The Board of Visa Appeals should be vested with the jurisdiction to hear appeals of consular visa denials wherein the action, findings, and/or conclusions of the consular officer with respect to a visa application are alleged to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. The function of such a Board would be particularly important in immigrant visa cases that affect the reunification of United States citizens and legal residents with families abroad and the loss of technical and professional skills by American businesses. Any aggrieved party, including American citizens, legal residents, and businesses, should have standing to file an appeal from an adverse consular visa decision. The Board, through a majority vote, should have the power to affirm, to remand for further factfinding, or to reverse a consular visa refusal in any case. The Board should deliver its decision in writing and transmit copies to the Bureau
that there be established a Board of Visa Appeals with power to review the denial by a consul of a visa and that the Section of Administrative Law be authorized and directed to advance appropri
ate legislation to that end." The recommendation was later approved by the Board of Governors of the American Bar Association. 81 Reports of the ABA 426 (1956).
? The creation of a Board of Visa Appeals was suggested as early as 1955 by the Administrative Law Section of the American Bar Association. That recommendation was adopted by the Administrative Law Section in the form of a resolution that stated:
Resolved, that the Section of Administrative Law recommends that
of Consular Affairs of the Department of State and to the denied visa applicant or other aggrieved party(ies) who filed the appeal. In unusual circumstances, the Secretary of State for good and compelling reasons should have the authority to overrule a decision of the Board of Visa Appeals. Finding 4.3: The arbitrary exercise of discretionary authority by consular officers can be attributed, in part, to deficiencies in the Department of State training program for consular officers.
Inadequate training and supervision of consular officers is one cause of the lack of uniform decisionmaking in the consular visa process. The Department of State and the Consular Officers' Association have recognized the need for improvement in this area. To correct this problem, the Department has upgraded its consular officer training program. According to the Consular Officers' Association, however, deficiencies in language and area studies training still persist. Recommendation 4.3: The Department of State should continue to place emphasis on the improvement of training programs for consular officers. These improvements should include more thorough language training and more extensive area studies courses on the culture and politics of the particular country to which the consular officer has been assigned
search of employment opportunities as a more equitable and effective solution. Finding 5.1: The extent to which undocumented workers displace citizens and resident aliens from jobs will be increased if some employers are free to exploit them, for example, by paying them less than the minimum wage, because undocumented workers are afraid to assert their rights. Recommendation 5.1: The Department of Labor should vigorously enforce the Fair Labor Standards Act and other labor laws to ensure that neither citizens nor aliens are required to work under unfair working conditions and to minimize job displacement. Finding 5.2: The number of undocumented workers can be reduced by more effective immigration law enforcement, through the hiring of additional personnel and through the use of more modern law enforcement technology, such as computerized arrivial-departure records. The Commission believes that such an improved law enforcement effort can be accomplished without the dilution of individual civil rights. Recommendation 5.2: The Congress should appropriate additional funds to the Department of Justice in order that the Immigration and Naturalization Service can more effectively enforce the immigration laws by expanding its work force and having available more modern law enforcement technology. Finding 5.3: There are precedents for the development of working agreements to deal with the population flow between the United States and the major source countries for undocumented workers. It is recognized that the negotiation of such agreements must be linked with other outstanding issues between the United States and the source countries, the resolution of which would be to the advantage of all parties. Also, programs of economic cooperation and development can be worked out in such a way that they further develop the resources required to reduce the need for citizens in source countries to seek work in the United States. Recommendation 5.3: The President should seek bilateral or multilaterial agreements or compacts with the major source countries for undocumented workers in order to reduce and regulate the population flow between those countries and the United States. Finding 5.4: An employer sanctions law would be an unjustifiable imposition of law enforcement duties
Employer Sanctions Summary Finding: Although the exact nature and degree of the impact of undocumented workers on the American economy is unknown, most immigration experts agree that it is an issue of serious national concern and that there is an adverse impact on domestic unemployment for some of our citizens and legal residents. They are, however, divided on the manner in which to address the issue. Sharp divisions occur over the need for and/or efficacy of employer sanctions legislation as a unilateral solution to the undocumented worker issue. There is greater agreement on the negotiation of bilateral agreements between the United States and the major source countries to reduce the number of undocumented workers entering this country and to address and help remedy some of the economic conditions and factors that encourage the migration of citizens from the source countries to the United States in
upon private persons and businesses, with undesirable consequences not only for the employer but also for the due process rights of job applicants. Moreover, increased employment discrimination against United States citizens and legal residents who are racially and culturally identifiable with major immigrant groups may be the unintended result of an employer sanctions law.
If sanctions against the employment of undocumented workers are enacted, unintentional employment discrimination against current or prospective employees by employers, even when they act in good faith, may not be preventable. Bona fide job applicants who are "foreign looking" or "foreign speaking" may be denied employment because employers are unable to make determinations of lawful immigration status. The inability to screen employees properly may result from inadequate employer resources for verification of status, insufficient verification guidelines, or the inability or unwillingness of employers to interpret or evaluate an individual's immigration status.
Increased enforcement efforts by Federal civil rights agencies have been proposed as a remedy for potential employment discrimination resulting from an employer sanctions law. However, the time, effort, sophistication, and expense typically required of a complainant to pursue an employment discrimination case to a successful conclusion are such that very few cases of discrimination would be redressed. Moreover, after-the-fact remedies are rarely adequate to compensate American citizens and legal residents for the discrimination that prevents them from the full enjoyment of and participation in our democratic society. Recommendation 5.4:* Congress should not enact an employer sanctions law. Finding 5.5: The development and implementation of a compulsory national identity card system or a compulsory national work permit system has been proposed as a tool to deal with some of the problems involved in implementing an employer sanctions law.
Studies by government commissions raise serious doubts relative to the possibility of developing a secure, tamperproof national identity card or work
permit which would eliminate the market for false documentation, whether forged, lost, or stolen.
An even more fundamental objection, however, is that the availability of such a national identity card would provide a tool that could be used to violate the right to privacy of the individual. Recommendation 5.5:† The Congress should not enact legislation for the development and implementation of a compulsory national identity card or work permit system. Finding 5.6: INS currently conducts a program to verify the immigration status of employees which does not have adequate guidelines to protect current or prospective employees from employment discrimination.
Despite the unresolved national debate over employer sanctions, the INS has instituted a program, known in some areas as "Operation Cooperation" or the “Denver Project,” to dissuade employers from hiring undocumented workers. Participation in this program is not always voluntary. Failure to cooperate in this program can subject a business establishment to a disruptive INS raid or area control operation, which in turn may subject employees to violations of their consitutional rights (for example, see chapter 6 of this report for a discussion of fourth amendment problems in INS area control operations).
More important, “Operation Cooperation” contains no safeguards to protect employees from unfair employment practices which have been or will be adopted by employers under the program. This leaves the program open to the same type of employment discrimination that might result from an employer sanctions law. Recommendation 5.6:1 INS should terminate use of programs such as "Operation Cooperation."
Apprehensions by the INS Finding 6.1: The INS has failed to update its 1967 handbook, Authority of Immigration and Naturalization Service to Make Arrests (INS Manual M-69), which contains guidelines for interrogations and arrests of aliens by INS officers. Since its publication
• Commissioners Stephen Horn and Frankie M. Freeman have dissented from this recommendation. For their comments, see "Additional Statement by Vice Chairman Stephen Horn" and "Separate Statement of Commissioner Frankie M. Freeman." † Commissioners Stephen Horn and Frankie M. Freeman have dissented from this recommendation. For their comments, see “Additional Statement
by Vice Chairman Stephen Horn” and “Separate Statement of Commissioner Frankie M. Freeman."
Commissioners Stephen Horn and Frankie M. Freeman have dissented from this recommendation. For their comments, see "Additional Statement by Vice Chairman Stephen Horn" and "Separate Statement of Commissioner Frankie M. Freeman."
in 1967, several Supreme Court decisions interpreting the fourth amendment have restricted the conditions under which law enforcement officers are authorized to conduct searches and seizures. Although the INS has stated that a complete revision of that handbook is underway, no revised edition has been published. The failure of INS to issue a revised edition has resulted in criticism from the courts. Recommendation 6.1: The INS should complete the revision of the handbook on INS arrest and interrogation authority and make it available to Service officers immediately in order to clarify for those officers the legal authority under which they may interrogate and arrest persons suspected of violations of the immigration laws. Finding 6.2: INS area control operations have built into them procedures that can and do in some instances result in persons, including United States citizens and residents, being subjected to unconstitutional searches and seizures.
INS officers apparently select interrogatees during area control operations in one of three ways: (1) all persons within the target area; (2) on the basis of ethnic appearance; and (3) on the basis of a mere suspicion of alienage. INS area control operations are "unreasonable" seizures because each of the three standards currently used to determine which persons shall be interrogated during area control operations is constitutionally defective:
The interrogation of all persons within a target area implies the absence of any interrogation selection criteria, violating the fourth amendment requirement of a reasonable suspicion based on specific articulable facts that each person interrogated has violated the law;
The selection of interrogates on the basis of ethnic appearance is constitutionally impermissible without the presence of other factors giving rise to a reasonable suspicion; and
The selection on a mere suspicion of alienage, even where based on articulable facts, is insufficient to justify interrogations of individuals during area control operations, because such surveys can be considered "seizures" under the fourth amendment and therefore require a suspicion of unlawful
presence to detain persons. Recommendation 6.2: INS should immediately cease its area control operations, as currently conducted, to prevent the continued violation of the constitu
tional and civil rights of individuals. INS interrogations of persons should be based only upon specific articulable facts which create a reasonable suspicion that the individual is unlawfully present in the United States in violation of the immigration laws. Finding 6.3: Search warrants used by the INS to conduct area control operations are legally impermissible unless they conform to fourth amendment standards.
Criminal search warrants (see rule 41 of the Federal Rules of Criminal Procedure) and civil search warrants (see Blackie's House of Beef, Inc. v. Castillo, 480 F. Supp. 1078 (D.D.C. 1979) must be based on probable cause and must name and describe with sufficient particularity the person or persons who are the subject of the search.
Civil warrants based on an administrative inspection theory may not properly be used by INS to search for persons suspected of immigration violations in business establishments where such businesses are not regulated and licensed and where the persons sought are not specifically named. Recommendation 6.3: a. Future INS searches should be based upon warrants that are supported by probable cause and that name and describe specifically the person or persons who are the subject of the search. b. INS should discontinue its attempts to obtain warrants under an administrative inspection theory, since the courts have held that only regulated businesses are subject to such searches. Finding 6.4: Local police involvement in enforcing the immigration laws has resulted in violations of the constitutional rights of American citizens and legal residents.
Although the Immigration and Nationality Act expressly authorizes local police involvement in the enforcement of Federal immigration laws in only one instance, local police departments have not confined their enforcement of those laws to that portion of the statute. This expanded local police involvement has continued, notwithstanding admonitions from the Department of Justice and the Immigration and Naturalization Service that enforcement of immigration laws is the responsibility of INS. Recommendation 6.4: Congress should clarify the Immigration and Nationality Act to specify that immigration laws should only be enforced by INS.
: 8 U.S.C. $1324 (1976).