There is no question in my mind that the most rude, imperious, and insensitive officials that I have ever observed are those of Immigration. I do not know if it is because they are overworked or because they believe that they are imbued with divine right that they perform their services in the contemptuous manner in which they maltreat the aliens that they are paid to service. More than one time have I heard officials addressing with ethnic slurs or abruptly brushing off the person who has approached them. These immigration officers are the antithesis of what this country stands for. In this nation, which is the flag bearer of democracy around the world, a person is innocent until proven guilty. For an immigration official, regardless whatsoever of the encounterer's circumstances, a person is guilty until he proves himself innocent.41

Access to Applicant's Files

After a person has succeeded in filing the appropriate forms, he or she often encounters problems in obtaining information on the status of the case. Kalman Resnick, an immigration lawyer, testified that there is no effective procedure for obtaining information on the status of a petition after it has been filed with INS:

[O]ne of the big problems, even after you've waited a year, if you do not hear about what's happening to your application, there are no procedures available for easily finding out what has happened to your application, either for the attorney or for the applicant herself or himself.42

A major reason given for the inability to obtain information on the status of a case is lost files. 43 Former INS Commissioner Castillo admitted that many files are indeed lost, not merely misplaced, by INS, and attributed this problem to the Service's manual retrieval system. At certain major district offices, including Los Angeles and New York, as many as 25 employees are detailed daily to search for missing files."

Recognizing these problems, INS has begun the development of a "model office" in Houston that uses a computer to track applications, retrieve files,

"Victor Maridueno, past president of PROECUA (Association of Ecuadorian Professionals Overseas) and director of social services of Ecuadorian Cultural and Social House, testimony, New York Open Meeting Transcript, vol. 1, p. 233.

" Kalman Resnick, testimony, Washington Hearing Transcript, p. 154. See United States v. Guevara-Martinez, 597 F.2d 954 (5th Cir. 1979) (involving a case where the INS lost a file containing an I-130 petition for 9 months.)

and perform other functions. At the Houston office, most files can be retrieved "within a minute" through the automated tracking system.45 INS offices that have not been computerized, however, continue to present obstacles to applicants or petitioners who are trying to discover the status of their cases. Clearly, this results in delays for United States citizens and residents who want to be reunited with their families abroad and for resident aliens who wish to avail themselves of benefits under the immigration laws for which they are eligible.

Lost files can result in more than a delay in the adjudication of a petition or application. Lee Teran, an attorney, described a situation in which her client, a permanent resident alien who had lost his passport and I-151 resident alien identification card, was subjected to an exclusion hearing by INS. Because INS was unable to locate his immigration file, he was excluded and not allowed to enter the United States. Ms. Teran testified that "as far as I know the file was never located," and as a result, her client was unable to enter for a year and a half.46

Despite the serious consequences that may result from lost files, testimony received by the Commission indicates that in some INS offices lost files continue to be a problem and that the situation is not improving. As one experienced immigration attorney stated:

[M]any times after several inquiries and being told that a particular case is being processed, you'll finally be told that the file was lost. It seems that the problem of lost files is a problem that's getting worse, at least in the district office that I deal with here in Washington, D.C.47

Processing Backlogs

Once a person has filed a petition or application, INS must determine whether or not to grant the benefits requested. For several years the large number of petitions and applications awaiting INS adjudication has been a subject of public criticism. The problem was recognized by former Commissioner Castillo. In reviewing a draft of this report prior to publication, he commented:

"Castillo Testimony, Washington Hearing Transcript, p. 128. 45 Ibid.

"Lee Teran, testimony before the Texas Advisory Committee to the U.S. Commission on Civil Rights, open meeting, San Antonio, Sept. 12-14, 1978, vol. 3, pp. 181-83 (hereafter cited as Texas Open Meeting Transcript).

47 Ronald Chirlin, testimony, Washington Hearing Transcript, p. 160.

One of the criticisms in the report is that immigration benefits delayed are, for all practical purposes, immigration benefits denied. To help expedite decisions on applications for such benefits, the INS Adjudications Division implemented new procedures which combined related applications and petitions. By doing this, we significantly reduced adjudication time and also cut by at least 50 percent the number of INS/applicant transactions necessary before the benefit was granted. These new procedures have been met with great favor by the public; applicants for the combined benefits are now receiving those benefits more quickly than ever before. Because of the success which this program has experienced, we are expanding it to further increase our ability to deliver benefits.48

Expedited adjudications decisions were necessary, for testimony received by the Commission indicated that in many cases U.S. citizens were required to wait over a year before INS approved their visa petitions to bring in close relatives, that permanent residents had to wait 1-1/2 years after filing their petitions before they could become naturalized citizens, and that "unwarranted delays" of 2 to 3 years existed in processing applications for other immigration benefits.50

The result of such processing delays is, in effect, to deny immigration benefits to persons who are entitled to them by law. Former Commissioner Leonel Castillo recognized the extent of this backlog and the serious consequences it has upon those whose families are separated and whose lives are disrupted:

The [backlog] of pending cases to be adjudicated, even simple ones, [was] so great that it took months or even years to reunite relatives, to obtain adjustment to permanent resident alien status, or, in some cases, to receive a simple extension of a stay for a student.51

to all concerned when benefits are delayed. However, the backlog problem must be put into perspective in terms of Adjudications workload and resources. Since 1976, receipts of all categories of applications and petitions have increased by 50 percent, from 1.2 to 1.8 million cases.

This tremendous workload increase has not been accompanied by a commensurate increase in Adjudications resources with which to do the additional work. Management improvements which we have made, such as combined processing, are by themselves insufficient to cope with the workload. Unless the resources necessary to eliminate excess adjudication time are provided, the backlog problem and its effects will continue.52

Although the Commissioner did not agree with our analysis of the effect of the backlog, it is clear from his comments that the problem is far from solved.

The INS has made several moves to improve the speed and efficiency of the service process: mobile "task forces" composed of adjudications officers from various offices have been sent for a specified time to other INS district offices with huge backlogs to help process those cases;53 the Service has expanded the community outreach program to train community volunteers in immigration law to enable them to assist people in completing INS forms and applying for immigration benefits;54 and INS has implemented a "remoting out" program by which applications are farmed out to personnel in other branches of the Service who, because of the nature of their assignments, have free moments during their duty day.55 While these measures have helped to reduce the number of complex applications awaiting INS action, the processing backlog is still present, according to Ralph Kramer, INS Deputy Assistant Commissioner for Adjudications:56

At the present time in September [1978], we had 234,000 applications and petitions pending. This is down from 241,000 when we began our crash program and our efforts to reduce the backlog in a serious vein. That was in June 1977. However, there's been a distinct difference.

While the total numbers appear to be relatively the same. [w]hat we are now dealing with

53 Ralph Kramer, testimony, Washington Hearing Transcript, p. 174.

54 Castillo Testimony, Washington Hearing Transcript, pp. 122, 127.

55 Kramer Testimony, Washington Hearing Transcript, p. 174.

56 Mr. Kramer retired from the Service in January 1980. He was the Deputy Assistant Commissioner for Adjudications from September 1974 until his retirement.

are applications and petitions that take less time for us to adjudicate than was the case in June of 1977.57

These substantial delays in the current applications process often result in severe hardships to applicants or petitioners and their families. Persons who qualify by law for certain benefits and who must wait for many months or even years to receive consideration of their petitions are in effect being denied those benefits by INS during the lengthy waiting period. Families can be separated by such delays, where a family member must wait outside the United States pending INS approval of the adjustment application, or where spouses of United States citizens must wait outside the United States pending INS approval of their petitions for visa preferences. Persons who are entitled to adjust their status to permanent resident must often wait for INS to process their applications, thus deferring the date on which they may apply for U.S. citizenship and obtain all the rights that accompany citizenship, one of the most important of which is the right to exempt members of their immediate family from immigration quotas.

Hardships other than the separation of families can also befall persons whose applications are not processed immediately. Dale Swartz, an immigration attorney, testified that "substantial delays" in issuing work authorizations to persons whose adjustment of status applications are pending prevent applicants from working during the time needed for INS to approve their applications.58 INS failure to issue work authorization documentation to those entitled to it often undermines the applicants' financial resources and, in many cases, compels them to violate their nonimmigrant status by working illegally to support themselves. Martin Needleman, an immigration practitioner, testified that such delays in issuing work authorizations can also have damaging effects on applicants who cannot find work and whose applications are thereby denied because of the possibility that they may become public charges:

What that does is that they put themselves into a position where they have no choice but taking the worst kind of lowest paying jobs or not being able to find employment at all, and what's the result of that in the system? They are then

57 Kramer Testimony, Washington Hearing Transcript, pp. 174-75.

58 Dale Swartz, director, Alien Rights Law Project, Washington Lawyers' Committee for Civil Rights Under Law, testimony, Washington Hearing Transcript, p. 152.

not able to overcome the public charge provision of the statute, and they can never get residency and they never get work authorization. So, it's an ugly circle, and it's substantially forced by delay that's involved in these determinations.59

INS has recognized the problems created by delayed work authorizations and has agreed to try to alleviate the burdensome wait for such authorizations. As Dale Swartz testified:

We've done some work in this area relating to substantial delays in the issuance of work authorizations, and very recently the Immigration Service agreed to promulgate new guidelines designed to ensure that persons who applied for adjustment [of] status will immediately receive a work authorization while their application is pending, as long as they've made out a prima facie case that they're eligible for adjustment.60

Perhaps the most serious consequence, however, of the backlogs is the disruption and separation of families that result from these delays and despite the Immigration and Nationality Act's avowed purpose of promoting family unity. Significantly, where increased INS efforts are directed at reducing backlogs, the effect, superficially at least, is to create more work for INS. Then INS Commissioner Castillo testified that at a recent naturalization ceremony in Baltimore 700 people became U.S. citizens; 1 hour later they were filing petitions with INS to bring in other members of their families. He concluded, "and so, rather than clearing up workloads, we added workloads."61 Rather than indicating that INS is on a treadmill, the fact that these new citizens immediately filed petitions to bring in their relatives seems to indicate that the effect of completing the applications for naturalization is to promote the reunification of families. Given the existence of large INS backlogs, it may be assumed that a large percentage of those who were naturalized experienced a long delay in receiving the benefits to which they are entitled by law and that their families were separated for a longer period than necessary by INS processing delays.

Because these delays have such detrimental effects upon all applicants, be they U.S. citizens, permanent

59 Martin Needleman, testimony, New York Open Meeting Transcript, vol. 1, p. 257.

60 Swartz Testimony, Washington Hearing Transcript, p. 152. 61 Castillo Testimony, Washington Hearing Transcript, p. 126.

residents, or aliens, every effort must be made to recognize and root out the factors that created the Immigration Service backlog. Chief among the reasons generally cited for the backlog are the historical emphasis placed on enforcement functions and the unavailability of sufficient resources for INS service functions.

Former Commissioner Castillo attributed the problem to the lack of resources available to INS for the performance of all of its functions. He said that both the service and enforcement branches were "unbelievably strapped" for resources and that the INS staff should be increased two or three times in size to handle the workload. 62 As an example of this accelerating problem, he noted that in 1977 INS received 100,000 cases each month and was able to adjudicate 100,000 monthly, while in 1978 INS received 177,000 cases monthly and was not allotted additional resources to process the increase.63 An INS investigator stated that INS resources have not increased in proportion to the growth in the number of aliens in the United States seeking benefits:

I would like to comment on one thing, also, that with respect to our backlogs and the volume of work that is performed by the Immigration Service, obviously the immigration staff. . .has not kept pace with the alien population, and this is the biggest single reason why oftentimes we cannot accomplish something as quickly as we would like to do it.

We realize that these people are waiting for certain benefits, and we just simply do not have the capability to respond as timely as we would like to.64

Limited resources, however, may not be the sole reason for the continued presence of processing backlogs. Benjamin Gim, an immigration attorney, attributed the backlogs in part to the "badly conceived priority program" of the previous administration, which concentrated Service resources on its

** Ibid., p. 125.

❝ Ibid., p. 127.

"Phillip Smith, testimony, Los Angeles Open Meeting Transcript, p. 129. 5 Gim Testimony, New York Open Meeting Transcript, vol. pp. 23334.

66 Cortes Testimony, Washington Hearing Transcript, p. 21. 7 Ibid.

"Steven Mukamal, testimony, Washington Hearing Transcript, p. 235-36. "The Attorney General has enforcement and administrative responsibility for the immigration laws and can delegate this authority to the Commissioner of INS. Immigration and Nationality Act of 1952, §103(a) and (b), 8 U.S.C. §1103(a) and (b) (1976). The Commissioner, in turn, has redelegated his authority to various Service officials. 8 C.F.R. §100.2 (1980).

TO For example, the statute governing adjustment of status applications provides in pertinent part:

apprehension and deportation functions to the exclusion of its service responsibilities.65 It has been suggested that although the claim of insufficient manpower may be justified, the allocation of existing resources indicates "misformulated priorities, "66 with INS allocating its investigation staff to "often futile and very costly pursuit of the limited number of undocumented immigrants" instead of assigning investigators to handle the backlogged petitions for benefits. "It would seem," said Michael Cortes, "that INS is more interested in hunting down undocumented workers than they are in enabling those who are entitled to remain in this country to secure their rights." Such allocation of resources is possible because, having both enforcement and service functions, INS is able to funnel its resources to those programs it wishes to emphasize:

[T]he word "Service" would indicate the performance of a service and in many instances what happens in the present structure of the agency, because of its dual function in enforcement and adjudications. . .much of the allocation goes towards enforcement and subsequently the adjudicative process of the Service fails to function appropriately. What this will do is create a workload in various offices of the Immigration Service. . . .Backlogs and delays which in effect will cause a violation, in our opinion, of the civil rights of not only the aliens themselves but of Americans.

68

Exercise of Discretion by INS
Adjudicators

In many instances, statutorily created immigration benefits are available to eligible applicants only when the Attorney General or his designee9 determines in his discretion that relief should be granted. To obtain these benefits, an applicant must prove that he or she meets the statutory requirements for relief and then persuade the adjudicator to exercise discretion in favor of granting the relief sought.70

§ 1255. Adjustment of status of nonimmigrant to that of person admitted for permanent residence; record; alien crewmen, aliens continuing or accepting unauthorized employment, and aliens admitted in transit without visa.

(a) The status of an alien who was inspected and admitted or paroled into the United States may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed.

Immigration and Nationality Act of 1952, §245, 8 U.S.C. §1255 (1976).

INS adjudicators have extensive discretionary authority to grant or deny applications submitted to them, and in so doing they necessarily bring their own attitudes, opinions, and prejudices to bear upon the cases before them. Maurice Roberts, former Chairman of the Board of Immigration Appeals, noted that:

Adjudicators with hard-nosed outlooks are likely to be more conservative in their evidentiary appraisals and in their dispensation of discretionary bounties than their counterparts with more permissive philosophies. It must be recognized as a fact of life that Service officers and Board members are no more immune than other persons to the influences that result in individual bias and predilection."1

Given the fact that adjudicators exercise their personal discretion in many cases, and that they are not required to be lawyers or otherwise legally trained, the possibility always exists that they may make arbitrary or inconsistent decisions. One immigration attorney noted:

72

[Many adjudicators] come from the Border [Patrol], and these people are not trained, are not given the guidelines to make decisions according to any set standards, and as a result, we have the deplorable roulette wheel of justice in which some aliens who may be undeserving may obtain permanent residence, and cases involving very deserving aliens may be turned down.73

INS has itself recognized the many problems that unpredictable decisions can create, including the denial of benefits to deserving persons and the granting of benefits to undeserving applicants, as

"Maurice Roberts, "The Exercise of Administrative Discretion Under the Immigration Laws," San Diego Law Review (1975), vol. 13, pp. 144, 148. 72 Andrew Carmichael, INS Assistant Commissioner for Naturalization, testimony, Washington Hearing Transcript, p. 178.

73 Gim Testimony, New York Open Meeting Transcript, vol. 1, p. 242. "William Zimmer, Associate Regional Commissioner for Examinations, memorandum to All District Directors and Officers in Charge, Southern Region, Nov. 8, 1977, concerning “Quality Control of Adjudications,” p. 1 (hereafter cited as Zimmer Adjudications Memorandum). Preston Ivey, Assistant Regional Commissioner for Examinations, Southern Region, testified that the other INS regional offices were furnished copies of this memorandum for their use. Preston Ivey, testimony, Texas Open Meeting Transcript, vol. 4, pp. 364–65.

75 The regional office said:

well as the expense of defending erroneous judgments in such cases:

Poorly written, inconsistent, or legally unsound denials result in unnecessary appeals, generate complaints, deprive aliens of benefits to which they are entitled and are indefensible in the event of judicial review by the courts. Cases approved through error, lack of knowledge, or for any other reason, grant benefits for which the alien is ineligible or undeserved and may necessitate lengthy, time consuming, rescission proceedings.74

After recognizing that faulty decisions caused by a lack of adequate firstline supervision75 and the absence of uniform guidelines can occur, the INS Southern Regional Office recently instituted a quality control program for adjudications.76 The program encourages firstline supervisors to review all decisions for consistency and accuracy and to assist adjudicators in writing decisions in difficult or unusual cases for possible publication as precedent cases. Comments and reference citations are provided for the "most common problem areas" encountered by adjudicators, and an analysis of various INS forms is furnished with citations to the applicable sections of the law, the Code of Federal Regulations, the Service's Operations Instructions, the Immigrant Inspectors Handbook, and relevant precedent decisions." The INS Central Office has recently informed the Commission that it has adopted a similar program, among other reforms, to reduce arbitrary adjudications decisions.78

But where there are no clear Service guidelines or vigilant firstline supervision, inconsistent and erroneous decisions can be made by adjudicators while

78 The INS informed the Commission:

This year, INS will render decisions on approximately 1.7 million cases, to be adjudicated by more than 1,000 officers at some 235 different locations throughout the world. Within existing resource levels, we have taken all reasonable actions to prevent inconsistent decisions. However, with such an extensive operation it is impossible to ensure that all decisions will be consistent. The Service publishes and distributes precedent decisions covering all areas of Adjudications. We also have an Adjudications Quality Control Program designed to monitor, among other things, the quality of case decisions in view of the law, regulations, instructions and humanitarian considerations. We have also expanded attendance at our Journeyman Examiners Training Course, in which adjudicators receive advanced instruction in topics which include precedent decisions, proper use of discretion and decision writing. In 1979, more than 30 percent of the adjudicator workforce completed this two week course.

We have also instituted a career ladder program for adjudicators which begins at the GS-5 level. This program not only opens an upward mobility path for the INS clerical workforce, but also gives us the ability to effectively train professional adjudicators. Castillo Letter.