exercising their discretion. Testimony received by the Commission indicates some possible problems that may arise where adjudicators are given unchecked authority to grant or deny relief in individual cases. Benjamin Gim, an immigration attorney, testified that INS examiners are able to manifest otherwise covert racial antagonisms because of the wide latitude of their discretionary authority:

And the fact that Section 245 of the Immigration and Nationality Act gives the Immigration Service examiners discretion to grant or deny an application, even though the alien is otherwise qualified, gives them an opportunity to cloak the decisions which are really motivated by racial bias.79

Similarly, Pedro Lamdagen, another immigration attorney, attributed some unreasonable exercises of discretion to racial prejudices of some adjudicators:

I know the Immigration Service doesn't have the personnel, much less the time, to go into all the circumstances in detail, and they really have to rely on their own previous experience, but sometimes, in most cases, that is just a prejudice toward a particular group of people and type of petition. . .

80

Decisions which are based upon the racial prejudices of the deciding officer can result in the inequitable treatment of applicants from certain countries or of certain racial groups. One immigration practitioner testified that INS operates upon the presumption that marriages involving persons from certain countries are likely to be shams or involve fraud:

There are presumptions, for instance, that certain ethnic groups marry other ethnic groups. If a Puerto Rican marries a Greek, you can be certain the Immigration Service will investigate that just because they have a predilection concerning Puerto Ricans marrying Greeks, and that is the typical kind of policy on a functional level which prevails in the Immigration Service.81

Similarly, testimony indicated that INS considers certain types of documents, such as letters or testimonials of labor experience, likely to be fraudulent when filed by persons from Asian countries

79 Gim Testimony, Washington Hearing Transcript, p. 16.

so Lamdagen Testimony, Los Angeles Open Meeting Transcript, pp. 2526.

Fragomen Testimony, New York Open Meeting Transcript, vol. 1, pp. 250-51.

seeking adjustment of status. An immigration attorney testified that, as a result of this presumption, INS automatically sends such cases filed by Asians back to Asia for investigation, whereas a similar letter submitted by a European applicant would not be automatically investigated in this way,82

According to testimony received by the Commission, unequal treatment by INS based on applicants' race or national origin is particularly evident in cases involving persons from the People's Republic of China. Steven Mukamal, an immigration attorney, noted that delays in INS processing of cases involving U.S. citizens who wish to bring close relatives from China can stretch to 5 or 6 years after the date of filing. Mr. Mukamal noted, "[R]egardless of how difficult or how wide in scope the application may be, it is certainly an inordinate period of time."83

George Lee, a Chinese American immigration attorney, discussed the particular evidentiary problems encountered by persons seeking to help relatives emigrate from Hong Kong or China. Since China issues no marriage certificates and does not keep any registry of similar records, applicants must rely on such secondary evidence as affidavits to establish that certain marriages and births did, in fact, occur in China:

Now, it is very recently [that] the INS requires that the petitioner make an effort or at least write back to the interior China, [the People's Republic of] China, to seek the documentation. In some instances it has come through, but very sparsely, as far as my own experience is concerned. In many cases I do not get any response at all. However, I am able to get witnesses that are here that are citizens of the United States, or who already received permanent residence, to give affidavits indicating that they lived. . .next door or that they were in the next village or they were in the same school, and that they know Mr. and Mrs. So-and-So to be married, and that the child on such a date was born to this family. Now this is unique among the Chinese cases because they require strong documentary evidence. Now, it would seem that even in a criminal prosecution, where the burden of proof has to be very strong, a witness, two witnesses, can send a man to jail or take his life away, and yet you can have two witnesses, making a sworn statement, or who are ready, willing, and able to appear for the Service to " Ibid., pp. 249-50.

83 Mukamal Testimony, Washington Hearing Transcript, p. 236.

give such a statement that so-and-so and so-andso in fact were married, and he may even have attended the marriage ceremony, and he attended the 1-month party of the issuing of such a marriage, they will still require documentary evidence.... 84

He concluded that this INS requirement that Chinese persons obtain documentary evidence works a distinct hardship.85 Mr. Lee also testified that Chinese petitioners seeking to help their children immigrate must take a blood test, and "I do not know of any other ethnic group that is required to take a blood test."86

The Commission also received considerable testimony concerning the apparent absence of Service guidelines, or, in cases where they do exist, concerning adjudicators' unwillingness to apply them to the cases before them. Raymond Campos, an immigration attorney, testified that INS does promulgate some guidelines for discretionary decisions in their regulations, Operations Instructions, and in the case decisions rendered by the Board of Immigration Appeals, "but the guidelines are not even followed because the case itself is not even looked at."87 Sam Williamson, another immigration practitioner, similarly testified that INS adjudicators ignore established Service guidelines in "hundreds" of cases in San Antonio by denying adjustment to applicants on the basis of their preconceived intent to remain in the United States, and he noted that these denials are made in spite of the presence of substantial equities on the part of the applicants and despite the existence of Service guidelines requiring that such applicants be granted relief.

Testimony received by the Commission indicates that inconsistent decisions can also occur where no guidelines exist to help adjudicators in interpreting and applying difficult provisions of the law. Steven Merkatz, an immigration specialist, testified that certain sections of the Immigration and Nationality Act are subject to differing interpretations by INS examiners and noted that the "public charge"

"Lee Testimony, Los Angeles Open Meeting Transcript, pp. 13-14. 85 Ibid., p. 18.

se Ibid., p. 14.

7 Campos Testimony, Los Angeles Open Meeting Transcript, p. 143. S Sam Williamson, testimony, Texas Open Meeting Transcript, vol. 3, pp. 162-63. Mr. Williamson testified that INS guidelines applicable to adjustment of status applications provide that, if such applications were filed shortly after the applicants entered the United States as nonimmigrants, they may be denied on the ground that the applicants had a "preconceived intent" to remain in the United States. These aliens would be considered "immigrants" under the immigration laws and would thus be inadmissible because they presented nonimmigrant rather than immigrant visas. Immi

provision is a striking example of this.89 Under that section of the statute, adjudicators may deny an application for adjustment of status where, in their discretion, they believe that the applicant is or is likely to become a public charge upon the U.S. Government.90 Mr. Merkatz testified that the Los Angeles and New York district offices of INS apply different standards to determine whether applicants are likely to become public charges, thereby resulting in inconsistent decisions within the Service:

In New York, if you are not receiving public assistance at the time you are interviewed, when I worked there, which was from '74 to '75, you had no problem. Here, in Los Angeles, it is pretty much the letter of the law. They will go into how much money you are earning, whether you received assistance prior, and if the amount of money you are earning will allow you to support your family, or whether you are just borderline, and I find this a problem because people do come from other areas to Los Angeles, and tell us, "Well, I had no problem in New York or Philadelphia," and then our clients here say, "Well, it is another story."9

Clearly, adequate supervisory review of all adjudications decisions would ensure some degree of consistency and fairness in Service determinations.

Separation of Service and
Enforcement Functions

The root of the problems encountered by United States citizens and residents in the service side of INS stem in large part from the conflicting missions of INS-service and enforcement. Several studies that have examined the duties and operation of INS and its predecessors have concluded that combining service and enforcement responsibilities in one agency is undesirable. As early as 1931, the Wickersham Commission found that the agency charged with administering and enforcing the immigration laws had conflicting duties where it was responsible for gration and Nationality Act of 1952, §§101(a)(15)(b), 212(a)(20), 8 U.S.C. §§1101(a)(15)(b), 1182(a)(20) (1976). Mr. Williamson also testified that, in cases where an applicant has sufficient “equities" that he would otherwise be granted voluntary departure rather than deportation, the INS Operations Instructions provide that his application for adjustment "shall not be denied."

8 Steven Merkatz, immigration specialist, Jewish Family Services, testimony, Los Angeles Open Meeting, pp. 132-33.

"O Immigration and Nationality Act of 1952, §212(a)(15), 8 U.S.C. §1182(a)(15) (1976).

1 Merkatz Testimony, Los Angeles Open Meeting Transcript, p. 132.

adjudicating applications for immigration benefits as well as deporting persons.92 That Commission further found that "the confusion of functions limits the effective performance of each function involved" and concluded that a separation of functions was necessary.93

A 1978 study commissioned by the INS to evaluate its bail-bond practices noted that INS' dual responsibilities for enforcement and service create "role conflicts which are rife." The study further noted that:

The internal structure and promotional plans of the Service foster the divergent philosophies of law enforcement and service. Border Patrol Agents become Investigators, become Supervisors, become top Administrators including District Directors. Naturalization Examiners become Trial Attorneys, become Special Inquiry Officers or "Judges." While such a system certainly produces some checks and balances it pits one school against another.95

In 1978 the President's Reorganization Project (PRP) of the Office of Management and Budget expressed its concern over the conflicting missions of INS. In its analysis of immigration service and border management functions, the PRP stated:

In addition to its border enforcement role, INS also administers the immigration laws. Thus, at the same time it is expected to judge issues of human rights objectively, it is also expected to deter entry by undocumented aliens. These two roles are often incompatible and have resulted in the past in emphasis on the enforcement function to the detriment of the other administrative law functions.96

This is a large problem because some people in the INS in the Central Office have gone on the public record to tell the documentable people to come forward for assistance from the Immigration Service. In Chicago, many of these people are being subject to expulsion proceedings, even though they qualify to lawfully immigrate to the country under the quotas.99

INS appears to have recognized some of these problems and has made an attempt towards bifurcating its service and enforcement functions by establishing satellite offices in Los Angeles and New York to provide information and services to the public. In Los Angeles no enforcement personnel are stationed at the El Monte and Santa Ana offices:100

They are extensions of the District Office and they will handle adjudications and processing, respond to inquiries, and distribute forms which will be available from self-service wall racks, again a new innovation. They are staffed with "Ibid., p. 25. Action on the PRP recommendations has been postponed, pending the submission of the report of the newly appointed Select Commission on Immigration.

" Williamson Testimony, Texas Open Meeting Transcript, vol. 3, pp. 17071.

* Resnick Testimony, Washington Hearing Transcript, p. 154.

100 Castillo Testimony, Washington Hearing Transcript, p. 122.

experienced officers fluent in both Spanish and English.10

Because this bifurcation is limited to the New York and Los Angeles satellite offices, however, many INS officers still tend to combine, rather than separate, the service and enforcement functions. Oswald Kramer, INS Regional Commissioner for the Eastern Region, believed that this did not amount to a conflict of duties. He testified that, in his view, the service and enforcement functions are not necessarily separate-performance of one function being necessary to successful performance of the other:

We tried to train our people to be sensitive to all people, to their problems. One of you mentioned that enforcement and adjudication are two separate, different things, and they have got them both in the Immigration Service. Well, we do have enforcement functions, and we do have services functions; but, why, really, regard those as different things? I think they are both different sides of the same coin. To do a good enforcement job, you have to have in mind the service function that we have, and to do the service function, you have to have the enforcement function. Our investigators primarily go out to apprehend aliens illegally here; but, if he is required to check to make sure, does this person have eligibility for relief under the immigration laws, and to expose that to the individual and offer it to him, and if he gets the relief, that's good enforcement too. 102

Immigration attorneys often disagree with this analysis. While it may be true in theory that the two functions are related, in practice, there is a conflict between the INS service and enforcement functions. As one attorney testified, the practice of referring persons seeking information to enforcement officers has a chilling effect on prospective applicants who may be entitled to certain benefits but do not dare to file applications at INS offices because they are afraid of being deported:

The result is that many people are afraid to go to the Immigration and Naturalization Service, will not go for assistance, will not go to file applications, or to find out what's happened to applications because they are then subject to expulsion proceedings. There is no bifurcation

101 Castillo Statement, p. 6.

102 Oswald Kramer, testimony, New York Open Meeting Transcript, vol. 2, pp. 167-68.

103 Resnick Testimony, Washington Hearing Transcript, p. 164.

of these functions in the Immigration and Naturalization Service in Chicago. You may wait in one line that may appear to be a service line, but you may be immediately transferred to another line or to another officer who is engaged in enforcement functions. 103

The commingling of service and enforcement responsibilities is not the only problem, however; the situation is exacerbated in the eyes of some people by employees who neglect their service functions in their zeal to enforce the law. Angie Cruz, a community representative, testified:

The Immigration and Naturalization Service to Asians has never been anything but a policing agency. It seems to be concerned only with its law enforcement function and to the complete disregard of any service delivery. As Asians, with very distinctive looks, we are easy targets of the police tendencies of INS. Our race appears to be the very cause of blatant INS discrimination and complete disregard of civil and human rights. I tend to believe that as far as INS is concerned, all Asians are considered illegal, unless they can show a green card, a system of justice so inconsistent with America's democratic principles. 104

Some witnesses also stated that, in addition to the combining of the INS service and enforcement functions and its resulting emphasis on enforcement activities, the INS career ladder is a major reason for the negative attitude towards and treatment of the public. Because the Service's career ladder is structured to promote officers who have enforcement experience, most Service employees obtain some job experience in enforcement activities. This enforcement experience tends to result in an "enforcement mentality," which remains with employees even when they are subsequently detailed to "service" jobs or are promoted to policymaking positions. One attorney testified:

In my opinion, the root of the problem or one of the real causes of the problem is the confusion between the law enforcement and service function of the Immigration and Naturalization Service. The majority of employees of the Immigration Service are involved in law enforcement, investigation, border control, detention and deportation, immigration judges, trial

104 Angie Cruz, vice-chairperson, Philippine Americans for Community Action and Development, and member, Mid-Atlantic Regional Board of PAC-MAR (Pacific/Asian Coalition), testimony, New York Open Meeting Transcript, vol. 1, pp. 14-15.

attorneys. Thus, the majority of higher grade level positions within the agency are in the law enforcement area, and there are very few high grade level positions on a district office level which are in the applications area. Consequently, as an employee ascending the career ladder, he serves in law enforcement capacities along the way. So, indirectly, the system forces persons who actually aren't that interested in the law enforcement aspect of the Immigration Service to become involved in [some positions] in the law enforcement area, because that's where the high grade levels exist. . . .Law enforcement mentality results in looking for fraud everywhere, which causes the undue harassment of individuals as well as unnecessary delays. 10

He suggested that the solution to these problems lies in separating the service and enforcement functions of INS:

[O]ne obvious solution to the problems, at least in part, would be to bifurcate the dual functions of the Immigration Service. Certainly, there should be a greater emphasis on the applications area, and even with the limited manpower, law enforcement personnel should be reassigned applications. Obviously, if there are millions of illegal aliens in the United States, how many can possibly be apprehended-not enough to make any statistical difference. Well, taking a thousand employees who are chasing [undocumented] aliens and assigning them to applications can make an enormous difference in the lives of those persons who have applied and whose lives are literally being destroyed by these unconscionable delays. . . .106

Findings and Recommendations 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 system107 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

105 Fragomen Testimony, New York Open Meeting Transcript, vol. 1, pp. 247-49.

106 Ibid., p. 251.

107 Nearly 96 percent, or slightly over 11,100, INS employees were

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:

a. The INS should continue its commendable efforts to hire minority and female applicants for Service jobs. At the same time, the agency should 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 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 positions above GS-15 have now been assigned to a senior executive service.