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. p. 257. 1. 60 Swartz Testimony, Washington Hearing Transcript, p. 152. 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.3 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: 62 Ibid., 63 Ibid., p. 127. "Phillip Smith, testimony, Los Angeles Open Meeting Transcript, p. 129. 5 Gim Testimony, New York Open Meeting Transcript, vol. 1, pp. 23334. 66 Cortes Testimony, Washington Hearing Transcript, p. 21. 67 Ibid. Steven Mukamal, testimony, Washington Hearing Transcript, p. 235-36. 69 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."67 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 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: [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 71 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. 74 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: In reviewing these [completed] cases, one of the most apparent causes of deficiencies is lack of consistent and adequate firstline supervision and supervisory review. It is imperative that supervisors not only be trained, but that they limit the performance of journeyman duties and assume to a greater degree the responsibilities of supervision. Zimmer Adjudications Memorandum, p. 1. 76 Ibid. " Ibid., see attachments I and II. 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. 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 82 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."s 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 guidelines88 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. s Ibid., p. 14. 7 Campos Testimony, Los Angeles Open Meeting Transcript, p. 143. 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."91 Clearly, adequate supervisory review of all adjudications decisions would ensure some degree of consistency and fairness in Service determinations. Separation of Service and 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." * Steven Merkatz, immigration specialist, Jewish Family Services, testimony, Los Angeles Open Meeting, pp. 132-33. 90 Immigration and Nationality Act of 1952, §212(a)(15), 8 U.S.C. §1182(a)(15) (1976). 91 Merkatz Testimony, Los Angeles Open Meeting Transcript, p. 132. |