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 disproportionate emphasis on enforcement has resulted in the denial of services or benefits for which persons are eligible under the immigration laws. This problem is particularly evident at INS information counters. As one Texas immigration attorney testified, when a person seeking information in Houston is suspected by INS contact representatives of being illegally in the country, he or she is automatically turned over to enforcement personnel for processing and interviewing.98 Another experienced immigration lawyer testified to similar experiences with the INS office in Chicago: Another large problem in this area-if a person seeks services from the Immigration and Naturalization Service Office, then they are immediately subject to investigation and enforcement actions, if it should come to light during the time they are seeking services that they may be a deportable alien or may be subject to investigation as to whether or not they are deportable aliens. 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.101 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. 105 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. 108 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. and retrieving files, most INS offices are computerized. Recommendation 3.3: a. 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. C. 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. Chapter 4 The Department of State The Consular Visa Process Under existing law any person seeking to enter the United States lawfully is required to obtain official permission to apply for entry, termed a "visa," from an American consulate abroad.1 In most cases where a consular official declines to issue a visa, the prospective immigrant is not the only aggrieved party. The denial can also adversely affect American citizens or legal residents and American businesses who are seeking to bring family members or skilled employees into the country. To these people, the denial of a visa prevents the reunification of a family or causes the loss of needed professional or technical skills, yet a person seeking to overturn an unfavorable ruling will encounter a relatively informal and very limited review process in the State Department. Whether the applicant seeks to be admitted permanently or on a temporary basis, that is, on immigrant or nonimmigrant status, a variety of 1 Under current immigration law, a prospective entrant seeking admission to this country must pass through a double-check system of entry. Initially, either an immigrant or nonimmigrant visa must be applied for and obtained from an American consulate abroad. Visa applicants, in order to obtain visas must prove to the satisfaction of the consular officer that they are eligible to receive visas and entitled (therefore, admissible to the United States) to visas under the immigrant or nonimmigrant status claimed. Once a visa has been secured, the person is entitled to present himself or herself at a United States port of entry where a determination of admissibility is made by the Immigration and Naturalization Service. 8 U.S.C. §§1201, 1225 (1976). * Immigration and Nationality Act of 1952, §291, 8 U.S.C. §1361 (1976). State Department regulations underscore the discretionary authority of consular officers to deny visas unless the visa applicant has met the burden of proof of eligibility for a visa to the satisfaction of the consular officer. For nonimmigrant visas, 22 C.F.R. §41.10 (1979) provides, in pertinent part, that: An applicant for a nonimmigrant visa shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer that he is entitled to a nonimmigrant status. . . .The burden of proof is supporting evidence, including documents, must be submitted to the consular officer. The applicant has the complete burden of establishing his or her eligibility for a visa through the presentation of this documentary or other supporting evidence. As provided in the statute: Whenever any person makes application for a visa...the burden of proof shall be upon such person to establish that he is eligible to receive such visa. . .and, if an alien, that he is entitled to the non-immigrant, quota immigrant, or nonquota immigrant status claimed, as the case. may be. If such person fails to establish to the satisfaction of the consular officer that he is eligible to receive a visa. . .no visa. . .shall be issued to such person, nor shall such person be admitted to the United States unless he establishes to the satisfaction of the Attorney General that he is not subject to exclusion under any provision of this chapter [emphasis added].2 upon the applicant to establish that he is entitled to the nonimmigrant classification and type of nonimmigrant visa for which he is an applicant. Visa applicants seeking preference immigrant status based upon their relationship to an American citizen or legal resident are required initially to obtain an approved visa petition from the Immigration and Naturalization Service. The receipt of these petitions by the American consulate abroad, however, does not automatically entitle the visa applicants to a first, second, fourth, or fifth preference immigrant status. In addition to the approved visa petition, 22 C.F.R §§42.30, 42.31, 42.33, 42.34 (1979) require that: The consular officer is satisfied that the alien has the relationship to the Those seeking to enter the United States based upon job or labor skills must also acquire an approved petition from INS. Again, these petitions do not automatically entitle the visa applicant to a third or sixth preference visa. Under 22 C.F.R. §42.32 (1979), a third preference visa still requires that the visa applicant "establishes to the satisfaction of the consular officer that he is within the class described." Sixth preference places a similar burden of proof on the visa applicant in 22 C.F.R. §42.40 (1979), a regulation of |