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CURBING UNLAWFUL MIGRATION

In its first interim report to Congress this Commission recommended a comprehensive strategy to curb unlawful migration into the United States through prevention and removal.⁹ That report focused on deterrencesteps that could prevent illegal entry and unauthorized work. The Commission found that curbing unlawful immigration required: (1) better border management; (2) more effective deterrence of the employment of unauthorized workers; (3) a more consistent benefits eligibility policy; (4) cooperative efforts with source countries; (5) improved data collection and analysis; (6) mechanisms to address migration emergencies; (7) and an improved capacity to

remove deportable aliens. The Commission presented detailed recommendations on the first five elements of this strategy (border, worksite, benefits, source country, and data). Our report on refugee policy detailed more specific recommendations on the sixth, migration emergencies.¹⁰ This final report provides more detailed recommendations on the seventh, removals.

Since 1994, the immigration system as a whole has undergone almost unprecedented change. As Congress, the public, and the Administration focused more keenly on immigration, the financial resources available to INS grew from $1.5 billion in FY 1994 to a projected $3.6 billion in FY 1998. During the same period, INS staffing is expected to rise 65 percent, from 17,000 in FY 1994 to more than 28,000 in FY 1998. Once in 1994,¹¹ and three times in 1996,¹² enactment of

major legislation made substantive and substantial changes in

laws affecting illegal migration. Many of these statutory and

administrative actions sought to implement the Commission's 1994 recommendations.

⁹ U.S. Immigration Policy: Restoring Credibility, 1994.

¹⁰ U.S. Refugee Policy: Taking Leadership, 1997.

¹¹ Violent Crime Control and Law Enforcement Act of 1994.

¹² Antiterrorism and Effective Death Penalty Act of 1996 [AEDPA], Illegal Immigration Reform and Immigrant Responsibility Act of 1996 [IIRIRA], Personal Responsibility and Work Opportunity Reconciliation Act of 1996.

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Deterrence Strategies

The Commission reiterates its 1994 recommendations supporting a comprehensive strategy to deter illegal migration. Despite the

additional resources, new policies, and often innovative strategies adopted during the past few years, illegal migration continues to be a problem. In October 1996, INS released its latest estimates of the illegal alien population in the United States: some 5 million undocumented migrants reside in the United States, a number growing by approximately 275,000 annually; 41 percent of these are nonimmigrant overstays; the remaining 59 percent probably entered illegally and without inspection.

The Commission continues to believe that unlawful immigration can be controlled consistent with our traditions, civil rights, and civil liberties. As a nation committed to the rule of law, our immigration policies must conform to the highest standards of integrity and efficiency in the enforcement of the law. We must also respect due process. The Commission believes that the comprehensive strategy we outlined in 1994 continues to hold the best promise for reducing levels of illegal migration. These policies, combined with the structural and management recommendations detailed later in this report, can restore the credibility of our immigration system by both deterring illegal entry and facilitating legal crossings. The Commission emphasizes, however, that no one part of this strategy will, on its own, solve the problem of unauthorized migration.

More specifically, the Commission continues to support implementation of the following deterrence strategies:

n An effective border management policy that accomplishes the twin goals of preventing illegal entries and facilitating legal ones. Increased resources for additional Border Patrol officers, inspectors, and operational support, combined with

The Commission

reiterates

its 1994

recommendations

supporting a

comprehensive

strategy

to deter

illegal

migration.

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such new strategies as operations "Hold the Line," "Gatekeeper," and "Safeguard," have improved significantly the management of the border where they are deployed. The very success of these new efforts demonstrates that to gain full control, the same level of resources and prevention strategies must be deployed at all points along the border where significant violations of U.S. immigration law are likely

to occur.

Implementing effective prevention strategies. In 1994, "Operation Hold the Line" in El Paso, Texas successfully challenged outmoded border control concepts. This effort then served as the model for efforts to control other parts of the border, particularly in the San Diego area. The result, "Operation Gatekeeper," utilizing a strategy described as "Prevention through Deterrence," began on October 1, 1994, and included the commitment of significant new resources and the implementation of innovative new strategies.

Phase I (1994) of the plan had the greatest impact on the area around Imperial Beach in San Diego County. For many years this area accounted for approximately 25 percent of illegal crossings across the southwest border. Utilization of new equipment led to apprehension of greater numbers, and use of new techniques cracked down on alien smuggling rings. Reinforcement of interior checkpoints helped capture those who made it illegally across the border.

Phase II (begun in June 1995) consisted mainly of reinforcing nearby ports of entry seen as the next likely route for aliens whose illegal entry was disrupted by "Operation Gatekeeper." INS placed additional service inspectors at the border, constructed fencing at strategic locations, installed a fingerprint identification system , and added increased lighting at ports of entry.

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Phase III (begun in 1996) is designed to extend control over increasing sections of the southwest border as additional staff and equipment become available. The San Diego Border Patrol Sector now has almost 2,000 agents working along the border.

Where these new initiatives have been instituted, the number of people seeking to cross is significantly reduced. On Commission site visits, residents of El Paso and Imperial Beach, the main beneficiaries to date of the new enforcement efforts, cited reduction in vagrancy and petty crime as evidence of reduced illegal crossings through their communities. Preliminary research data reveal that it now takes longer and costs more to enter the United States illegally. Illegal migrants now must now cross through tougher terrain and need the assistance of smugglers. Migrant smuggling

increasingly is becoming specialized and professionalized.

The 1997 Binational Study, Migration Between Mexico and the United States, reports that a systematic survey of border crossers indicates fewer actual crossers but longer periods of stay in the United States. Thus, it appears that while new border initiatives may deter some movements, they do not fully

reduce either levels or impacts of illegal migration. In other words, border control is a necessary, but not sufficient,

response to illegal migration.

Evidence also shows that in response to the new initiatives migrants have shifted their entry patterns. For example, as Imperial Beach and its neighboring communities came

under control, the numbers of illegal entries rose in eastern San Diego county, the Imperial Valley, Arizona, and south Texas. As the Commission noted in 1994, the immigration system must have the capacity to prevent entry across the southern border. Mobile, rapid response teams initially

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can help plug holes along the border, but eventually, a

prevention capacity must be established in every likely crossing area.

Protecting human rights. Effective border management is not without its human toll, increased violence along the border, as well as deaths resulting from exposure to extreme weather in mountain and desert areas. Both border crossers and Border Patrol agents have been victims of this heightened violence.

Since the implementation of the border initiatives, incidents of violence against the Border Patrol have increased. Incidents of rock-throwing, a hazard to Border Patrol agents for years, have risen. Agents now face random gunfire from south of the border. Beginning in May of 1997, six

reported sniper shootings in the San Diego sector were

directed at Border Patrol agents. Sustained efforts to protect agents from such violence must be at the top of the policy agenda.

Efforts also must continue to warn potential illegal border crosserswhile they are still in their countries of originof the increased physical dangers and legal consequences of trying to cross illegally. In particular aliens must be warned of the pitfalls of using smugglers, some of whom abandon border crossers and otherwise abuse them.

Site visits in Mexico demonstrate that already widespread knowledge exists about the new difficulties in entering the United States illegally; misinformation continues to abound as well. Residents in new sending regions such as Oaxaca, traditional sending regions such as Jalisco, and border

crossing points such as Tijuana, all spoke of the additional

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costs and dangers encountered in attempting to cross the border illegally.

The Commission continues to support efforts to monitor and reduce human rights violations and potentially violent confrontations between government personnel and those believed to be seeking illegal entry into the United States. The INS formed a Citizens' Advisory Panel [CAP] that met periodically from February 1994 through February 1997, a year

beyond its original expiration date. During that time, the CAP discussed ways and means for averting potential

human rights abuses and outright violence by INS employees against aliens. As a result, INS adopted a formal complaint procedure for reporting alleged abuses by government employees to their supervisors and for INS to respond to those complaints. At its February 1997 meeting, the CAP decided to disband in its present form. Discussions are now underway on how best to retain the CAP input in the INS decisionmaking processes, in delivering feedback for training and supervising INS border personnel, and in responding to complaints made against employees.

Improving ports of entry. Additional pressure on ports of entry also accompany enhanced border control. The various initiatives already undertaken provide guidance for other border sites. In San Diego, "Operation Gatekeeper II"

included enhanced resources for inspectors to identify individuals entering with fraudulent documents or as impostors. A Port Court was established to place these persons into formal exclusion proceedings. Presiding Immigration Judges made clear to those receiving exclusion orders that they would face criminal penalties if they were apprehended attempting to reenter within one year. To ensure that word went out that these were not idle threats, the U.S. Attorney pledged to

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prosecute these cases. A relatively small number of persons were apprehended attempting reentry after receiving an

exclusion order at the Port Court.

This process has changed somewhat under the new expedited removal procedures mandated by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, which took effect on April 1, 1997. Under the new procedures, an alien arriving at a port of entry with fraudulent documents or without documents is referred to secondary inspection, where he or she is advised about expedited removal.¹³ If the alien does not indicate a fear of persecution or an intent to apply for asylum, the alien is fingerprinted, photographed and detained until removal, which in San Diego typically takes two processing days. The alien's identity is recorded in the INS IDENT database for immediate and future determination of repeated attempts at unlawful reentry. An immigration officer's determination to remove an alien under the expedited procedures is not subject to administrative or

judicial review, except under only very narrow circumstances.

Immigration officials in San Diego report a significant increase in removals as a result of the new expedited removal provisions. These gains in the capacity to remove at the border are no doubt desirable goals for an immigration

enforcement agency. However, a more reliable determinant

¹³ IIRIRA permits the Attorney General to apply the expedited removal provisions to aliens in the U.S. who have not been admitted or paroled [EWIs] and who have not shown to the satisfaction of the immigration officer that they have been continuously present in the U.S. for the two-year period immediately preceding the date of the determination of inadmissibility. At present, the Attorney General has elected not to apply these provisions to EWIs, although she has reserved through regulation, the option to apply the expedited removal provisions at any time, to any alien specified in that section.

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of the extent to which a law actually deters the conduct it seeks to address is the recidivism rate. Thus, the effective communication of the consequences attached to the removal of an alien as a result of the new provisions is a key ingredient of the efficacy of our immigration laws. Without such public education, certain individuals are likely to be undeterred by the type of sanction exacted under the new expedited removal procedures.

Although reliable data on reentry is not yet available, the San Diego district reports an apparent increase in recidivism following implementation of the new law. It appears that an order issued by an immigration inspector does not have the psychological force of an order issued by an Immigration Judge. What is gained in expediting by the new statutory process may be lost in increased recidivism.

To counter this trend, the San Diego district has instituted a three-strike system that corresponds with the changes mandated by the new law. This system was established with the cooperation of the INS, the Executive Office for Immigration Review [EOIR], and the U.S. Attorney's Office in response to reports of apparent recidivism among aliens turned away by the expedited removal process. The first strike occurs once the INS inspector issues an expedited removal order to the alien that carries a penalty of inadmissibility for up to twenty years in some cases and permanently if the offense involves the use of a fraudulent document.

The second strikeappearance before an Immigration Judge in Port Courtoccurs once the alien is apprehended after having been removed for a previous immigration or criminal violation. This step provides a critical link to deterrence: personal communication of the consequences of violating an

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immigration law. At the hearing, the Immigration Judge advises the alien of the administrative sanction resulting from the attempted illegal reentry after expedited removal (i.e., a bar to admission for some period) and also of the certainty of felony prosecution if the alien attempts reentry during that period. The presence of an Immigration Judge is considered a vital component to the credibility of the San Diego district's border enforcement. The clear, unequivocal notice of the penalty aliens are likely to incur at the third step, coupled with the prospect of time spent in prison, is predicted to have more of a deterrent effect than simply turning aliens away without providing adequate notice of the consequences of their conduct.

The third strike involves felony prosecution by the U.S. Attorney's office under 8 U.S.C. § 1326(a) for illegal reentry following deportation, exclusion, or removal or under

§ 1326(b) for illegal reentry by certain criminal aliens who likewise have been previously removed. The penalties for a conviction under these sections of Title 8 range from sentences of not more than two years to not more than twenty years and/or a fine.

The INS and the Border Patrol are in the process of linking the IDENT system to all sectors along the southwest U.S.-Mexican border. This is especially important in light of the apparent shift in border movements to the east. Moreover, proper coordination of this system with various other law enforcement agencies to identify criminal aliens and other immigration violators may enhance the cooperation between those agencies and heighten enforcement along the border. For example, within the constraints of privacy limitations, data on criminal aliens entered into the IDENT system and furnished to the U.S. Attorney's Office would allow that

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office more readily to identify and prepare the criminal alien cases it intends to prosecute under the § 1326 provisions.

San Diego also is a laboratory for initiatives to facilitate legal entries while guarding against the abuses referenced above. The Commission urged in its 1994 report that port of entry operations be improved to reduce long waiting times for legal crossings. We learned in El Paso that some illegal crossers had legal authority to enter, but because of the long waits, chose to use unauthorized avenues to enter. San Diego, along with several northern border sites, has been experimenting with a Dedicated Commuter Lane [DCL] to speed legitimate border traffic. This concept combines upfront screening of the applicant for a commuter pass and use of technology to ensure that the crosser is indeed the person who previously was screened. Another innovation in San Diego is a new working relationship between INS inspections and the Customs Service to open all traffic lanes and to improve the division of responsibility: INS currently runs the port for pedestrian crossing and Customs for cargo inspections.

Responsibility for inspections at the vehicle lanes still is shared by INS and Customs.

Reducing visa overstay and abuse. Visa overstay and abuse of visas and Border Crossing Cards [BCCs], particularly through unauthorized work, continue to challenge effective border management. Most of those entering with visas and BCCs come for legitimate purposes, abide by the terms of their entry, and leave when required. Out of the millions of aliens who are inspected each year, only a very small proportion (about 150,000 per year) overstay for significant periods. Any efforts to reduce abuse must also consider the widespread benefits that accrue from most visa and BCC holders. A number of policy changes could help ease legal entry while

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reducing abuse. The Commission previously recommended, and Congress and the Administration have taken action for, the development of new entry-exit controls for persons

entering with visas, reissuance of Border Crossing Cards to give them greater integrity, and providing significant new resources for inspections.

Monitoring and evaluating new initiatives. The various

intended and unintended consequences of the new resources, policies, and initiatives in and between ports of entry make clear the need for careful monitoring. The Commission

reiterates its 1994 recommendation that a systematic assessment of the effectiveness of new border strategies be undertaken by internal and external evaluators. IIRIRA mandates a General Accounting Office five-year evaluation of border management. This study should be underwritten with sufficient resources and expertise to ensure that Congress and the Executive Branch gain an independent view of the new policies' effectiveness.

n Reducing the employment magnet is the linchpin of a comprehensive strategy to deter unlawful immigration. Economic opportunity and the prospect of employment remain the most important draw for illegal migration to this country. Strategies to deter unlawful entries and visa overstays require both a reliable process for verifying authorization to work and an enforcement capacity to ensure that employers adhere to all immigration-related labor standards. The Commission continues to believe the following areas of worksite regulation and enforcement require improvement:

Employment authorization verification system. In our 1994

report, the Commission concluded that the single most

important step that could be taken to reduce unlawful

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migration was development of a more effective system for verifying work authorization.

A large majority of employers will comply with the law, and they will not knowingly hire illegal aliens. However, the widespread availability of fraudulent documents makes it easy for illegal aliens to obtain jobs because employers generally have no way of determining if the workers are authorized or not. The minority of employers who knowingly hire illegal aliens, often to exploit their labor, find protection from sanctions by going through the motions of compliance while accepting counterfeit documents. The absence of a secure verification process also heightens the potential for discrimination against legally-authorized, foreign-looking or -sounding workers because employers fear that they may be

inadvertently hiring illegal aliens.

The Commission concluded that the most promising option for verifying work authorization is a computerized registry based on the social security number; it unanimously recommended that such a system be tested not only for its effectiveness in deterring the employment of illegal aliens, but also for its protections against discrimination and infringements on civil liberties and privacy.¹⁴ The Commission urged the Administration "to initiate and evaluate pilot programs using the proposed, social security-based computerized verification system in at least five states with the highest levels of illegal immigration . . ." In the interim, we recommended that INS should continue to implement pilot programs

already underway that permit employers to verify the work authorization of these newly-hired workers who attest to

¹⁴ The Concurring Statement of Commissioners Leiden and Merced can be found in the Commission's 1994 report.

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being aliens. The existing pilot, since expanded, was a good mechanism through which INS could develop the data and other systems that would be needed in the more extensive pilots envisioned by the Commission. They continued to have a fatal flaw, however, in that an illegal alien could attest to being a U.S. citizen and thereby escape verification

by INS.

The Commission's recommendation for a verification pilot that involved both citizens and aliens was incorporated in modified form in IIRIRA.¹⁵ Congress mandated that the Attorney General establish a pilot confirmation system using a telephone line or other electronic media. The Commissioner of Social Security was mandated to establish a reliable, secure method to verify the social security number provided by a new hire as part of the employment confirmation process. Pilot programs testing the new confirmation process were to be implemented in, at a minimum, five of the seven states with the highest estimated illegal alien population. Participation in the pilot programs is to be voluntary for most employers. The legislation mandated participation by federal agencies and the Congress. Companies violating employer sanctions provisions can also be required to participate. The Attorney General is to report on the pilot programs after three and four years of operation.

The first of these pilot projects was to begin not later than one year from enactment of IIRIRA, or about August 1997. The first pilot project, starting in Chicago, began in late

August. Called the "Joint Employment Verification Project" [JEVP], the pilot involves INS and the Social Security

¹⁵ IIRIRA, Title IVEnforcement of Restrictions Against Employment, Subtitle A: Pilot Programs for Employment Eligibility Confirmation, sections 401-405.

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Administration. The verification pilot will test many of the requirements of the "Basic Pilot Program" mandated in

§ 403(a) of IIRIRA.

The JEVP will have prospective new employees fill out the current INS Form I-9, submit identification documents listed in the legislation, and include a photograph. Employers will then contact the Social Security Administration [SSA] through a touch-tone telephone (being developed under a contract with ATT) that will electronically verify identity and authorization/nonauthorization to work using the employee's social security number. If either of these is not confirmed, the prospective employee must be notified. The employee may then withdraw or contest this tentative nonconfirmation. In this case, the prospective employee has ten days in which to provide additional or corrected information to the

employer. If this still does not produce confirmation of

employment authorization, the employee will be told to contact SSA [for citizens] or INS [for noncitizens] to correct their record(s) and/or their status. During this confirmation process, employees cannot be terminated. If still unconfirmed at the end of the process, the employee then may be terminated. As mandated by IIRIRA, INS plans to expand implementation of the JEVP into five additional states by the end of September 1997.

In addition, IIRIRA mandates two other pilot projects, a

"citizen attestation pilot project" and a "machine readable document pilot project." INS currently is formulating these additional pilot projects. The "citizen attestation pilot project" will be similar to the INS' current Employment Verification Program, while the "machine readable document pilot project" is a variation of the JEVP and the "Basic Pilot Project."

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The current pilot programs are a useful step in improving verification, but they do not fully solve the problems we have identified. The Commission reiterates its support for pilot-testing approaches that do not require employers to use the current I-9 procedure. The I-9 is flawed in several ways. First it is a document system, which is prone to counterfeiting. Second, it requires employees to specify if they are citizens or aliens. This latter requirement increases the potential for discrimination based on alienage or presumed alienage. Third, it presents an added paperwork burden for employers who must keep the I-9 file. The current pilot programs help address the first problem by providing for telephone or computer verification of information provided in the I-9. It does not address the second or third problems, however.

A system based on verification of an employee's social security number, with a match to records on work authorization for aliens, eliminates any determinations by the employer and can be implemented electronically, thus eliminating the need for work authorization documents. The Commission recognizes that the data systems are not yet in place for this preferred process to work. The federal government does not have the capacity to match social security numbers with INS work authorization data without some of the information captured on the I-9. Congress should provide sufficient time, resources, and authorities to permit development of this

capability.

The Commission urges the Administration and Congress to monitor closely and evaluate the effects of these various

pilot programs. As discussed in our earlier report, the evaluation should assess their effects in reducing fraud, reducing the potential for discrimination, reducing emplyers' time,

resources, and amount of paperwork, and protecting privacy

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and civil liberties. The evaluation should be carried out by nationally-respected outside evaluators. It should be conceived as a continuing evaluation whose results are used in modifying and improving the pilots as they are implemented.

Counterfeit documents. The Commission recommended

action to reduce the availability of counterfeit documents and the fraudulent access to so-called "breeder documents," particularly birth certificates used to establish identity. The Commission is pleased to note progress in the development of new and more tamper-proof basic documents that could serve as verification documents until a general, nationwide verification system is fully in place. The Commission also believes that the federal government should develop a package of incentives and disincentives to encourage states and other localities to develop standards for issuing birth and death certificates and drivers' licenses. The Commission is pleased to note that its 1994 recommendation for imposing additional penalties on those producing and selling counterfeit documents was adopted in the IIRIRA.

Antidiscrimination strategies. In its 1994 report, the Commission expressed its concern regarding the discrimination that occurs against citizens and noncitizens as a result of the current employer sanctions system. To address this issue, the Commission recommended development of a new verification process to deter immigration-related discrimination. We also urged more proactive strategies to identify and combat immigration-related discrimination at the workplace, as well as a new study to document the nature and extent of the problem. Revisiting this issue three years later, the Commission finds that there have been a number of changes that are relevant to the Commission's recommendations.

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First, the Office of Special Counsel [OSC] for unfair immigration-related employment practices, formerly housed as an independent agency within the Department of Justice, has been incorporated into the DOJ's Civil Rights Division. This organizational change seems to have been well received within the Department as both the Division and OSC focus on protecting the rights of immigrants and racial and ethnic minorities.

The number of OSC staff, however, has decreased from thirty-six to about twenty-five since FY 1994. This downward trend harms OSC's ability to take the proactive role that the Commission recommended (e.g. increasing independent, targeted investigations and beginning testing programs). The Commission urges attention to this matter, as well as to the long delay in confirming a Special Counsel to head the office.

A significant portion of OSC's efforts have been directed toward the education of employees and employers, and we support these efforts. OSC has awarded 114 grants totaling $2.09 million since FY 1990 and contracted out for a five-year national public affairs/communications strategy. Its attorneys and staff have made 1,000 presentations in the last ten years, and its grantees have averaged 1,700 presentations per year. OSC also has coordinated its educational efforts with the Equal Employment Opportunity Commission, INS, and DOL and has Memoranda of Understanding with these and other agencies.

Despite this apparent coordination, however, OSC has not been involved in designing and monitoring the verification pilot programs. Reducing immigration-related employ-

ment discrimination against foreign-looking or -sounding persons was a key goal of the Commission's proposed

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verification system. OSC should play a role in monitoring the verification pilots to see if the discrimination is indeed

reduced as predicted.

The Commission also reiterates its recommendation for a methodologically-sound study to document the nature and extent of unfair immigration-related employment practices that have occurred since the General Accounting Office's 1990 report. Only through such a study can it be determined whether employer sanctions-related discrimination has

increased or decreased and how the pilot programs compare with the current situation on this indicator.

In 1996, IIRIRA changed the INA by requiring that an intent to discriminate must be proven for an employer to be found guilty of violating IRCA's antidiscrimination procedures with respect to document requests. Some believe that the intent standard will be a difficult one to prove and that it provides the employer with a loophole. The actual effect of this provision will be known only as OSC implements the statutory change and should be monitored.

Labor standards enforcement. Protecting authorized workers from employment abuses and substandard conditions and practices remains an essential ingredient of a strategy to combat illegal migration. Employers who hire illegal aliens tend to violate other labor standards and vice versa. Recently uncovered examples of exploitation of illegal aliens, including indentured servitude, highlight the necessity of enhanced labor standards enforcement. The Commission recommended in our 1994 report the allocation of increased staff and

resources to the Department of Labor for the enforcement of wage and hour and other labor standards. We continue to believe that these additional resources are necessary, and the

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Commission continues to urge Congress to authorize and fund additional labor standards investigators whose work should target industries hiring significant numbers of illegal aliens. As described more fully later in this report, we

believe that the Department of Labor should have full capacity and authority to sanction employers who fail to verify work authorization as part of the agency's duties in enforcing labor standards.

n Restricting eligibility of illegal aliens for publicly-funded services or assistance except those made available on an emergency basis or for similar compelling reasons to protect public health and safety or to conform to constitutional requirements. Although public benefit programs do not

appear to be a major magnet for illegal migrants, it is important that U.S. benefit eligibility policies send the same message as immigration policy: Illegal aliens should not be here and, therefore, should not receive public assistance except in unusual circumstances. The Commission recommended drawing a line between illegal aliens and lawfully-resident immigrants with regard to benefits eligibility, in part to reinforce this message. Immigrants are welcome in the country and, therefore, should be eligible for our basic safety nets; illegal aliens are not welcome and should not receive our assistance. We continue to believe that this demarcation between legal and illegal aliens makes sense. The Commission urges the Congress to reconsider the changes in welfare policy enacted in 1996 that blur the distinctions between legal and illegal aliens by treating them similarly for the purposes of many public benefit programs.

n Strategies for addressing the causes of unlawful migration in source countries. An effective strategy to curb unauthorized movements includes cooperative efforts with source

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countries to address the push factors that cause people to seek new lives in the United States. The Commission continues to urge the United States government to give priority in its foreign policy and international economic policy to long-term reduction in the causes of unauthorized migration. The United States can take many unilateral steps to improve its immigration policies, but U.S. policies alone will not stop unauthorized migration.

Recognizing the complex motivations behind unlawful movements, the Commission advocated the following possible

interventions, many of which have indeed occurred. They

include: arrangements to facilitate trade and investment in sending countries; support for human rights and democracy building; peacekeeping operations; humanitarian assistance in countries of origin and first asylum; deployment of

human rights monitors; human rights training for government officials in potential sending countries; humane treatment of citizens and minorities; and reconstruction programs after civil wars and civil conflicts. In its 1997 report on refugee policy, the Commission recommended that the U.S. government continue demonstrating leadership in international responses to refugee and related humanitarian crises, including concerted diplomatic and other efforts to prevent the emergencies from occurring.

To focus greater attention on the causes of migration, the Commission recommends development of immigration

impact analyses of foreign policy and trade decisions with potential migrant sending countries. The Commission also calls for adoption of focused strategies for communities producing large numbers of U.S.-bound migrants and strengthened intelligence gathering to improve early warning of large unauthorized movements.

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Other efforts to reduce the pressures of migration from the sending countries would be helpful, such as programs to arrest environmental damage throughout the hemisphere, to restore the environment in such areas as Haiti and Mexico, to improve rural development and agricultural productivity, particularly in those areas where land is becoming marginalized and unlikely to sustain the local population without an intervention strategy, and to address other environmental problems such as clearing land mines in rural Central America.

Given its proximity to the United States and its number of migrants, the Commission believes increased coordination with Mexico is essential to address problems related to

migration. The Commission notes with satisfaction the

efforts being conducted jointly by the government of Mexico and the United States to improve coordination strategies and actions on their respective sides of the border and encourages the continuation of such important dialogues. In particular, the Commission recognizes the work of the Binational Study on Migration Between Mexico and the United States, the Working Group on Migration and Consular Affairs, the various cross-border liaison groups established along the border, and efforts between the two countries to coordinate antismuggling efforts, regulate the movements of people across land borders, deter third-country nationals transiting Mexico en route to the U.S., curtail auto theft and train cargo theft, reduce border violence, and enhance cross-border law enforcement cooperation.

The Commission also notes that action has taken place at the regional level; annual discussions have been convened

involving the U.S., Mexico, and Central American countries. Further, the U.S. has held direct discussions with other

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countries in the region, such as Cuba, with whom it signed an agreement to curb unauthorized migration of its native population.

Despite that program, the need remains for forward looking consultative mechanisms between the U.S. and other countries. These should focus on exploring future policies and their migration implications as well as developing various policy scenarios and options for addressing unauthorized

migration. Joint data collection and analysis also would be useful in resolving some of the disagreements surrounding migration, for example joint solutions to address the economic and social costs of the migration.

n Mechanisms to respond in a timely, effective, and humane manner to migration emergencies. A credible immigration policy requires the ability to respond effectively and humanely to migration emergencies in which large numbers of people seek entry into the United States. These emergencies generally include bona fide refugees, other individuals in need of protection, and persons seeking a better economic life in the U.S. Failure to act appropriately and in a timely manner to determine who should be admitted and who should be

returned can have profound humanitarian consequences. Further, an uncontrolled emergency can overwhelm resources and create serious problems that far outlast the emergency.¹⁶

Leadership. Past experiences demonstrate that leadership and a chain of command must be established quickly during an unfolding mass migration emergency to ensure an effective response. The proposed National Security Council focal point for refugee issues should assume these responsibilities

¹⁶ For a fuller discussion of the Commission's recommendation on mass migration emergencies, see U.S. Refugee Policy: Taking Leadership, 1997.

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because of the political nature of the decisions, the need for high Executive Branch access, and the need for credibility that derives from sufficient authority and government

experience.

Regional advance preparation. Mass migrations are likely to continue within this hemisphere. To respond effectively and humanely to future crises, the U.S. and its regional partners need a plan for a regional temporary protection system. This plan should identify sites, prepare protection guidelines and processing procedures at the primary protection sites and other locations, and create a funding proposal that clarifies financial responsibilities and accounts for marginal additional costs. It also should include measures to avert and resolve crises and develop plans for implementing durable solutions.

Domestic advance preparation. The U.S. must also finalize its own federal contingency planning for migration emergencies that has been under development during the past

decade (with review and revision as needed). The presence of a such a contingency plan identifying various scenarios, policy responses, and appropriate steps for implementing them can help avoid both dangerous and costly ad hoc decisionmaking and disruption of normal operations. An effective and viable emergency response, however, requires that the agencies have sufficient resources and authorities to carry out their responsibilities. Thus, as part of this process, the U.S. must develop a realistic financing strategy and mechanisms to trigger allocation of funds.

Increased coordination among federal agencies involved in emergency responsesas well as with state and local agenciesalso is necessary to ensure that the appropriate participants are identified and involved in the discussions and that as many decisions and responsibilities as possible are agreed

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upon prior to emergency situations. This would facilitate emergency responses by reducing the reluctance of state and local government to be involved, by clarifying lines of

authority, and by increasing trust between the parties. If they had the statutory authority to allow them to respond rapidly and efficiently, agencies with operational responsibility for mass migration emergencies could be more effective. This operational responsibility must include the authority to assign tasks to other agencies as needed.

Removals

A credible immigration system requires the effective and timely

removal of aliens determined through constitutionally-sound procedures to have no right to remain in the United States. As the Commission stated in its 1994 Report, if unlawful aliens believe that they can remain indefinitely once they are within our national borders, there will be increased incentives to try to enter or remain illegally.

Our current removal system does not work. Hundreds of thousands of aliens with final removal orders remain in the U.S. The system's ineffectiveness results from a fragmented, uncoordinated approach, rather than flawed legal procedures. The Executive Branch does not have the capacity, resources, or strategy to detain aliens likely

to abscond, to monitor the whereabouts of released aliens, or to

remove them.

A large number of aliensmore than 250,000 in the past eight yearshave been issued removal orders but have never been removed.¹⁷ [See chart: Comparison of Removal Orders and Actual Removals.] In studying how the current system produces such a large number of

¹⁷ Prior to IIRIRA, such orders were referred to as "deportation" and "exclusion" orders.

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Comparison of Removal Orders

and Actual Removals

YEAR 1989 1990 1991 1992 1993 1994 1995 1996 1997

(1st half)

ORDERS 48,000 52,000 60,000 65,000 70,000 84,000 105,000 131,000 64,000

REMOVALS 34,000 30,000 33,000 43,000 43,000 45,000 51,000 69,000 42,000

UNEXECUTED

ORDERS 14,000 22,000 27,000 22,000 27,000 39,000 54,000 62,000 22,000

CRIMINAL

REMOVALS 8,000 12,000 17,000 24,000 28,000 31,000 33,000 37,000 23,000

NONCRIMINAL

ALIEN

REMOVALS 26,000 18,000 16,000 19,000 15,000 14,000 18,000 32,000 19,000

INS DISTRICT

IN SAN DIEGO

REMOVALS 7,000 8,000 8,000 8,000 9,000 12,000 23,000 13,000

Sources: INS, EOIR, Administratively Final Removal Order by Month: Summary, July 24, 1997

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unexecuted final removal orders, the Commission finds that the

removal process is neither conceived of nor managed as an integrated system.

The Commission urges immediate reforms to improve management of the removal system and to ensure that aliens with final orders of deportation, exclusion, or removal are indeed removed from the United States.

In its 1994 report, the Commission recommended that the top

enforcement priority should be the removal of criminal aliens from the U.S. in such a way that their potential return to the U.S. will be minimized. The INS has made considerable progress recently in removing larger numbers of criminal aliens. This year, INS is on track to remove 70 percent more criminal aliens than were removed in FY 1993. Despite these advances, the actual number of criminal alien removals still lags behind the total number who should be deported from this country.¹⁸

INS has been able to increase the number of criminal alien removals by detaining previously incarcerated aliens after they complete serving their sentences, through conclusion of their proceedings, and

removal can be effected. More significantly, INS and the Executive Office for Immigration Review developed the Institutional Hearing Program [IHP] through which removal hearings are held in the prisons. When final orders are issued in this setting, criminal aliens can be deported directly from state or federal prisons, alleviating INS' need to detain them during deportation proceedings. The Commission recommended enhanced use of the IHP in its 1994

report. As the recent GAO testimony cited above indicates,

The Commission urges immediate reforms to improve management of the removal system

and to ensure

that aliens with final orders of

deportation,

exclusion, or

removal

are indeed

removed from

the United States.

¹⁸ See, e.g., GAO Testimony, "Criminal Aliens: INS' Efforts to Identify and Remove Imprisoned Aliens Need to Be Improved," before the Immigration and Claims Subcommittee, Committee on the Judiciary, House of Representatives, July 15, 1997.

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improvements are still needed to ensure that INS identifies and

deports all removable criminal aliens.

Further, while the INS has increased criminal alien removals over the last several years, noncriminal alien removals remained static until 1996, as the chart comparing removal orders and actual orders indicates. The recent increase in noncriminal removals may be somewhat related to increased detention space and resources

authorized by Congress. However, much of the increase appears localized, suggesting that other forces are at work. As the chart further shows, removals from the San Diego District represent much of the increase and are related directly to the establishment of a Port Court in 1995.¹⁹

Even with these increased removals, the system needs significant improvements before it can be regarded as credible, that is able to deport most of the aliens with final orders of removal. To achieve this goal will require a new approach to correct a fundamental flawthe fragmentation in the current conception and management of the removal system. Each part of the systemInvestigations, Trial

Attorneys, and Detention and Deportationacts independently,

impeding the total system's efficiency and leaving no one accountable for growing numbers of unexecuted final orders of removal.

The system starts with INS investigations of potential immigration law violations. When investigators find such violations, they issue notices placing aliens in removal proceedings. At that point, the

¹⁹ When "Operation Gatekeeper" changed the patterns of how aliens attempted to enter the U.S. illegally and resulted in a significant increase in the number of aliens trying to cross with false documents at the port of entry, the U.S. Attorney worked with INS and EOIR to establish a more expeditious removal process for aliens apprehended at ports of entry. Previously, such aliens were simply turned back to Mexico; under the new system, they were placed in exclusion proceedings at the newly created Port Court. The aliens were detained for a few days, and the exclusion proceedings were expeditious because they were uncontested.

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investigators are finished with their assigned tasks; they are never connected to the results of their workwhether the alien was ultimately ordered removed and actually deported. Nor is their performance evaluated in connection with actual removals or with the priority that policymakers place on the removal of particular categories of aliens. Investigators do not, as a matter of practice, distinguish among priorities when initiating the formal removal process; both the worst violators and those who may have good claims for relief are placed in the same costly and time-consuming proceedings.

Once the proceedings have commenced, the INS Trial Attorney is responsible for the case. The volume of cases for each Trial Attorney is very large; yet, again there is no considered prioritization about which cases to proceed against and which not. Key policymakers do not provide guidance to Trial Attorneys about prioritizing cases, and, even if such guidance were provided, Trial Attorneys say that they are not given sufficient time to review cases to determine whether a case is worth pursuing. Again, there is no connection to the ultimate aim of the systemremoving those who should be deported.

The system suffers further because many aliens are unrepresented and thus do not receive advice on whether to go forward because they have a chance of being granted relief. As the Commission learned in studying the results of the Florence Representation Project [see below], the removal process works much more efficiently when aliens receive advice of counsel. Those with weak cases generally do not pursue relief through proceedings if they understand from counsel that they will be wasting their time. As the late Chief Immigration Judge Robie pointed out, representation generally makes the court system work more efficiently. For example, Immigration Judges

often grant continuances to unrepresented aliens to give them time to obtain counsel. In certain types of cases (particularly asylum claims), some judges are hesitant to proceed in the absence of

representation.

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When a final order of removal is issued, another INS office, Detention and Deportation, takes responsibility for the case. This office is charged with managing detention space and effecting removal. The reality is that there will never be enough space to detain everyone who should be removed. Nonetheless, no plan has been devised to pursue alternatives. The only experiment the INS has launched is the Vera Appearance Assistance Program that plans to test the utility of supervised release on various limited populations [as discussed below]. Unfortunately, due to internal INS problems, that pilot may not gain access to one of the main groups it should testasylum seekers who meet the credible fear standard. No strategy has been devised for determining when, after the first hearing on the merits, detention is advisable because the likelihood of absconding is higher. Notices ordering removable aliens to report for deportation, known as "run" letters, continue to be issued at a 90+ percent no-show rate. No strategy has been developed for picking up aliens with final orders even when there is a recent address.

Establishing a more effective removal system requires changes in the management of the removal process. More specifically, the Commission recommends:

n Establishing priorities and numerical targets for the removal of criminal and noncriminal aliens. The Commission

encourages headquarters, regional, and local immigration

enforcement officials to set these priorities and numerical goals. Based on the above analysis of removal orders and actual removals, it appears that beyond the very highest removal priorityconvicted criminalstargeted priorities of particular categories generally have not been developed at the national and local levels. Nor has INS developed

numerical targets for the removal of specific categories of noncriminal aliens. This absence of prioritization and performance measures generally precludes serious consideration

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of what strategies, resources, and training will be needed to effect the desired removals.

Establishing removal of criminal aliens as a priority and setting numerical targets helped identify such new strategies as the IHP. The same process can work with regard to other categories of aliens, as can be seen in San Diego. Aliens who attempted to enter there with fraudulent documents were singled out as a priority for removal with an exclusion order. Formerly, those presenting fraudulent documents were permitted simply to withdraw their application for admission with no penalty. Setting the priority to remove aliens

attempting reentry led to the decision to increase Inspection staff, establish a Port Court, identify additional detention space, and gain a commitment from the U.S. Attorney to prosecute those who attempted reentry after exclusion.

Failed asylum seekers [as the Commission recommended in our June 1997 Refugee Report], visa overstayers, unauthorized workers in targeted industries, and those who use false documents are categories that require attention if our removal system is to become credible and deter abuse. Setting priorities and numerical targets will help the government manage what is potentially a huge caseload of removable aliens.

n Local oversight and accountability for the development and implementation of plans to coordinate apprehensions,

detention, hearings, removal, and the prevention of

reentry. With guidance on priorities, local managers in charge of the removal system would be responsible for allocation of resources to ensure that aliens in the prioritized categories are placed in the process and ultimately removed. Local managers also would be responsible and accountable for identifying effective deterrents to reduce the likelihood that

removed aliens would attempt to reenter the U.S.

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Managers need to redesign the system so that resources are balanced from beginning to end. Right now, the system is lopsided and disconnected. The front end (Investigations) drives the system, and the back end (actual removals) is

neglected. That imbalance can be corrected if the local

offices develop plans to coordinate apprehensions, detention, hearings, and the removal process in ways that target the particular priorities in different districts. As discussed above, the San Diego district has had some success in focusing on aliens trying to enter with false documents. After identifying this priority, the U.S. Attorney coordinated the key federal government actors to ensure that these aliens were placed into proceedings, either returned to Mexico or detained for several days awaiting the hearing, promptly removed

after the issuance of a final order, and prosecuted if they

reentered.

As discussed above, the local INS Trial Attorneys, who are part of the General Counsel's Office, currently do not play a significant role in driving the removal system. The Commission believes Trial Attorney offices should function in the same manner that U.S. and District Attorney Offices do. Those offices determine which cases they will prosecute; and these determinations guide detectives as to which cases they bring to the U.S. or District Attorney for prosecution. Congress should provide sufficient resources to support such initiatives. Based on the policy guidance and plans developed by headquarters, regional and local offices, the chief Trial Attorneys [now called District Counsel] should make it clear to investigators which cases they will pursue in proceedings and which cases they will not. Investigators should then target these priority cases. Local heads of Immigration Enforcement Offices should be held accountable for the planning and implementation of this reconceived removal

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system. To ensure such accountability, these local officials should have authority over both the prosecutorial and police functions.

n Continued attention to improved means for identifying and removing criminal aliens with a final order of deportation. The Commission reiterates the importance of removing criminal aliens as a top priority. Our recommendation regarding the importance of removing noncriminal aliens with final orders is not intended to shift the attention of the removal system away from this priority. Rather, both criminal and noncriminal aliens must be removed to protect public safety (in the case of criminals) and to send a deterrent message to all who have no permission to be here.

To improve the effectiveness of the criminal removal system, criminal aliens must be identified as early in the process as possible. The local jail pilot project mandated by § 329 of IIRIRA should be used to help determine how early in the criminal process identification should occur. The Department of Justice and the state and local criminal justice agencies should develop uniform means of identification, and the data systems of these agencies should be linked to identify more effectively criminal aliens who should be removed.

With respect to the Institutional Hearing Program, the GAO found that the INS (1) failed to identify many removable criminal aliens and initiate IHP proceedings for them before they were released from prison, and (2) did not complete the IHP by the time of prison release for the majority of criminal aliens it did identify. GAO recommended improved data systems to track the IHP status of each foreign-born inmate and the development of a workload analysis model to identify the IHP resources needed in any period to achieve

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overall program goals. The Commission believes that the development of uniform means of such identification and linked data also will help the program achieve its goals.

The Commission urges the Department of Justice to attend carefully to actual removals in two additional ways. First, we have heard serious complaints from foreign authorities that they are not being notified that the U.S. is returning a criminal alien. DOJ must develop an improved notification process so that appropriate authorities in the countries to which criminal aliens are being returned can plan for such returns and take these individuals into custody if necessary. Second, we also have learned that many criminal aliens are being returned unescorted. For public safety reasons, criminal aliens should be returned by escort.

n Legal rights and representation. The Executive Branch should be authorized to develop, provide, and fund programs and services to educate aliens about their legal rights and immigration proceedings. Such programs also should encourage and facilitate legal representation where to do

so would be beneficial to the system and the administration of justice. Particular attention should be focused on aliens

in detention where release or removal can be expedited through such representation. The alien would not have a right to appointed counsel, but the government could fund services to address some of the barriers to representation.

Under the provisions of § 292 of the Immigration and

Nationality Act, an alien placed in proceedings is guaranteed the privilege of being represented by an attorney or other qualified legal representative, but at no expense to the government. Under this system, the alien is provided with a list of local attorneys and accredited organizations practicing

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immigration law who might be able to provide legal representation. Studies have shown that the vast majority of aliens in proceedings before Immigration Judges are not represented by counsel. This is accounted for by several factors including the lack of English proficiency on the part of aliens, a lack of understanding of the legal process and of their legal rights, the lack of funds to hire an attorney, and an inability to find someone available and willing to represent them. Securing the services of an attorney or otherwise qualified legal representative presents a particular challenge for

detained aliens whose freedom is constrained, who have limited phone privileges, and who find themselves situated

in locales not readily served by or accessible to the legal

community.

Experience demonstrates that when aliens are represented in proceedings, cases move more efficiently, economically, and expeditiously through the system. Indeed, represented aliens with little or no chance of prevailing can be more readily weeded out of the system. Aliens who have legal representation are much more likely to appear at their hearings than unrepresented aliens. Fewer continuances are needed or granted in the case of represented aliens. Hearings take less time. Issues presented for decision by the immigration courts and on appeal are more readily narrowed. Applications for relief are better prepared and presented in immigration court. Appeals are more cogently presented and are supported by legal briefs. Simply put, when aliens in proceedings or on appeal have legal representation, the system works better.

The Commission visited the Florence Immigration and Refugee Rights Project in Florence, Arizona, a project that demonstrates the advantages of programs designed to educate aliens about their rights and that provides a triage system to

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secure representation for those with a likely avenue for

relief. The Project screens detainees for eligibility for immigration benefits and relief from deportation, exclusion, or removal, informs aliens about their rights, and directly represents as many as it can handle, with the overflow referred out to pro bono attorneys. The Project has been recognized for its success and assistance in moving cases through the system while affording due process. An evaluation of the Project found that aliens with representation had a better opportunity to become aware of their rights and legal

options. Many inside and out of government believe that the Florence Project reduces alien detention time, expedites removal by decreasing necessary immigration court time, and increases court efficiency. Representation also decreases anxiety and behavioral problems among detainees.

The Commission believes that programs like the Florence Project should be facilitated and encouraged. Moreover, the Commission believes that the Executive Branch should be granted the authority to develop, provide, and fund other programs and services that inform aliens about their rights and the proceedings in which they are placed and to otherwise facilitate legal representation where to do so is a benefit to the system. Under this approach, the alien would not have a right to appointed counsel, but the government could fund ancillary services, such as rights presentations, interpreters, transportation, attorney/client meeting places, and training to address some of the barriers to increased legal representation.

n Prosecutorial discretion to determine whether to proceed with cases. Guidelines on the use of prosecutorial discretion should be developed; local Trial Attorneys should be trained to exercise discretion and support staff should be provided

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