Security on aliens still lax, say analysts

By STEPHANIE TAYLOR, for United Press International  |  Oct. 11, 2002 at 1:01 PM
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WASHINGTON, Oct. 11 (UPI) -- The United States has not fundamentally changed its habitual laxity regarding immigration law and security procedures even after the terror attacks of Sept. 11, 2001, and desperately needs reform, according to a recent report from a conservative Washington think tank.

The report, "The Deportation Abyss: 'It Ain't Over 'til the Alien Wins,'" written by Michelle Malkin and published by the conservative Center for Immigration Studies, is adapted from Malkin's new book, "Invasion: How America Still Welcomes Terrorists, Criminals and Other Foreign Menaces to Our Shores." In the book, Malkin provides an in-depth catalog of the failures of the Immigration and Naturalization Service, listing examples of illegal aliens who slipped through the holes of the system and committed violent criminal crimes.

"The obstacles to getting rid of unwanted guests are myriad," Malkin writes in the report. "The system is clogged by conflicting statues, incomprehensible administrative regulations, bureaucratic and judicial fiefdoms, selective enforcement and a feeding frenzy of obstructionist lawyers."

The view on this issue among think tank scholars is nearly unanimous: the INS has room for improvement. However, the experts debate over ways to make the agency more effective, and the areas on which the INS should focus.

"Obviously the most important issue facing the INS is the question of restructuring, how its functions will be handled in the department of homeland security," says Doris Meissner, a senior fellow for the liberal Migration Policy Institute think tank, and former INS commissioner under the Clinton administration.

There has been a general consensus for the past several years that the INS has needed restructuring, Meissner says.

"Its mandate has increased substantially and its workload has grown exponentially," Meissner says. "The structure needs to be overhauled."

She notes the conflict between the Senate and the administration of President George W. Bush about what this restructuring should look like. Meissner does not agree with the administration's idea to transfer border enforcement responsibilities to the Department of Transportation Safety, and says this policy change would overlook the fact that the INS's border security responsibilities are closely linked to its many other responsibilities.

"Breaking it apart so its responsibilities are fragmented may be a very unwise thing to do at this point," Meissner says. "It could very much fragment what already is a less than class-A organization."

Malkin doubts the effectiveness of any type of restructuring.

"I think any reorganization will be merely cosmetic, a public relations gimmick, unless you have people with real law enforcement experience leading the organization," she says. James Ziglar, the current INS commissioner and a political appointee, has no relevant experience, which is very demoralizing to those in law enforcement who do, she says.

Malkin also seeks to eliminate the voluntary departure option offered by the INS. The program was designed as a cost-saving measure and allows aliens to enter into an agreement with the government to leave the country at their own choosing and to avoid the consequences of a formal order of removal, such as being barred from re-entering the country for 10 years.

"This frees the alien to leave and attempt to re-enter legally, and to continue to stay here illegally," Malkin writes. "Guess which options most aliens are likely to choose?"

During the current war on terror, this program could prove deadly, some say.

"The effectiveness of that kind of program (voluntary departure option) is going to be limited," says Daniel T. Griswold of the libertarian Cato Institute.

"Terrorists are not going to volunteer to undermine their plans."

Meissner admits that the voluntary option program is less effective than anyone in the INS would want it to be. However, she compares it to the criminal justice system's plea bargain: It's something you have to do when you have more cases than you can handle. It's mainly for those without a criminal record and who haven't been deported previously, she says.

But the voluntary departure option and the restructuring discussion are only two parts of the debate. In her book and report, Malkin proposes eliminating both the controversial Executive Office for Immigration Review and its appellate body, the Board of Immigration Appeals, and transferring their functions to existing law enforcement officers within the INS bureaucracy. The EOIR and the BIA are currently housed under the Justice Department, and they oversee removal proceedings and re-determination hearings of aliens.

"(The members of the BIA) are politically appointed bureaucrats who have the power to overturn deportation orders nationwide," Malkin writes. "The panel -- composed of alien-friendly advocates from immigration-law circles -- receives more than 30,000 cases each year, and has a backlog of 56,000 cases."

Others say that the EOIR and BIA perform critical duties that protect the fundamental structure of the country and provide important balance and oversight to the immigration process.

Malkin's proposal is completely against the Constitution and the due process system on which our country is founded, says Meissner. Meissner does, however, propose that the EOIR and the BIA should be completely independent agencies and no longer a branch of the Justice Department.

Malkin disagrees. "I think (the EIOR and BIA) been running as a de-facto independent system for way too long," Malkin says. She says the current system has no accountability and favors the enhancement of the criminal rights of aliens over national security.

"The proposal to become an independent agency is just another power grab," Malkin says.

Think tank scholars agree that the INS is in need of increased resources, whether it is in the form of improved technology or more funding.

Although Malkin believes that the INS has misused its current resources, she does see a need for Congress to allocate increased funds for deportation expenses, detention facilities and interior enforcement agencies. Others, however, believe that technology plays a key role in winning the war on terror.

"The fundamental problem of the INS is paper-pushing," says Griswold, "bureaucrats trying to keep up in a computer age." Griswold believes that the INS needs an infusion of technological resources.

Meissner acknowledges that workloads at the INS have outpaced their technological improvements and agrees with the need for improvement there, but she also sees a need for intelligence sharing among the agencies. She believes that the INS should have access to intelligence at the State Department and other law enforcement agencies.

Malkin is skeptical of the INS's ability to use technology to enforce the law. In her book, she cites examples of expensive technology that was never implemented due to lack of training, computer terminals sitting in warehouses, and airports without the necessary Internet access to run the programs.

"You can have all the technology," Malkin says. "But if you have people in place who are disinterested in enforcing the law, the technology does not matter."

During the course of any debate on immigration policy, the sensitive subject of ethnic profiling also arises. Many think tank scholars agree that some sort of profiling is warranted, but disagree over what the policy on this should be.

"I think a degree of rational profiling is warranted," says Griswold. "It's a simple fact that most of the terrorists have originated from a relatively small part of the world -- the Middle East."

While Griswold supports increased security measures, he also believes that immigration reformation should at the same time include a way to allow Mexican immigrants to continue to obtain entry.

"The U.S. government has been obsessed with keeping low-earning, hard-working people, mainly Mexican immigrants, out," says Griswold. "The INS needs a redirection of mission to keep people out who intend to do us harm, and to create a legal channel where immigrants from Mexico can come in to assist with the labor market."

Malkin says this is an "absurd position."

"There is an underlying link between controlling illegal immigrants and enhancing national security," Malkin says. "You can't have open borders and win the war on terror."

In her book, Malkin offers specific suggestions regarding immigration from Muslim countries.

After Sept. 11, the first thing Congress should have done was to issue an immediate moratorium on visas for people arriving from countries that are state sponsors of terrorism, she says. She acknowledges that Congress placed a temporary ban on temporary visitor visas for individuals from Cuba, Iran, Iraq, Libya, North Korea, Sudan and Syria in the Enhanced Border Security and Visa Entry Reform Act of 2002. However, she also believes that at least eight other "al Qaida-friendly countries" should be included on a visa moratorium list, including Afghanistan, Algeria, Egypt, Lebanon, Somalia, United Arab Emirates, Yemen and Saudi Arabia. She believes the moratorium should stay in place until the INS has a comprehensive alien-tracking database and has apprehended the Sept. 11 masterminds.

Herself the daughter of legal Filipino immigrants, Malkin thinks that immigrants from Philippines are one group that Attorney General John Ashcroft should fingerprint for monitoring.

Others caution that race or ethnicity alone cannot be the only criteria in profiling and that factors such as background and intent of visa also must be used to establish fair policy.

"Profiling is a legitimate law enforcement tool in all rules of law enforcement," Meissner says. "But it's not a legitimate tool when based solely on ethnicity or country of origin."

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