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September 1998, Volume 5, Number 9

INS: Enforcement, Naturalization, Asylum

The House immigration subcommittee in July 1998 approved on a voice vote a bill by Representative Harold Rogers (R-KY) that would create a new Bureau of Enforcement and Border Affairs within the Justice Department to handle policing of the nation's borders and its immigration laws. The INS would remain a separate agency within the Justice Department, but would limit its services to naturalization, work permits and other benefits. The Senate has announced that it will not consider INS reorganization until 1999.

On August 6, the National Conference of State Legislatures announced its opposition to the IIRIRA requirement that Social Security numbers be included on newly issued driver's licenses.

Enforcement. The smuggling operation that went awry on May 30, 1998 successfully brought at least 100 Chinese illegally into the US in two previous operations between March 1997 and June 1998. The operation took Chinese from Fujian Province to Suriname by air or by ship. The Chinese were taken to the Oriental I, a 120-foot fishing vessel owned by a Venezuelan company, and then transferred to a speed boat near New York. The speed boat, Oops II, ran out of gas near Bay Head, NJ.

Barry McCaffrey, director of the White House Office of National Drug Control Policy, called for the appointment of a border czar to coordinate the enforcement of federal laws along the US-Mexican border. Some 23 federal agencies operate along the Mexico-US border.

IIRIRA requires the INS to construct a "triple fence" along the Mexico-US border south of San Diego--a second 16-foot high fence of steel mats with a roadway between for INS vehicles. Environmentalists on both sides of the border are protesting plans for the fence, arguing that construction could threaten endangered plant and animal species.

The hot summer of 1998 is expected to result in a record number of deaths of unauthorized migrants in the desert; 81 of the 100 deaths of migrants along the US-Mexican border have been heat-related this year. In mid-August, eight people believed to be illegal immigrants were found dead in the California desert north of the Mexican border, apparently killed by the heat. The INS offered a $5,000 reward for information on the smuggler who apparently abandoned them.

Fernando Solis Camara, head of Mexico's Subsecretariat of Population and Migration Services, said in response to suggestions that Mexico should discourage exits that lead to tragedy: "Mexico will never discourage Mexican migrants from entering or leaving the country. We will do nothing that limits or discourages migration to the United States by people who leave their families and their hometowns to better their living conditions."

The parents of Esequiel Hernandez, Jr., who was killed by US Marines assisting the Border Patrol in south Texas in May 1997, received a $1.9 million settlement from the government.

There are several thousand foreigners in US jails who have served their sentences for crimes committed in the US, but remain incarcerated by the INS because they cannot be returned to their country of citizenship. In August 1998, a Sacramento federal judge released a Vietnamese man who was ordered deported in 1990, and has been detained by the INS for the past three years. This is the second case of a "lifer," in INS parlance, being released by a federal judge.

Some 1,600 Cubans are in US jails. Many have served the sentences they received for crimes committed in the US, but are not released because Cuba refuses to accept the return of convicted criminals, and the 1996 IIRIRA requires the removal of non-US citizens who commit certain crimes in the US. There are also 400 to 500 Vietnamese in US jails who have served their sentences and are subject to deportation but remain in US jails because Vietnam refuses to accept their return.

Since 1991, all first-time visitors from "countries that support terrorism"-- Iran, Iraq, Libya and Sudan--must be fingerprinted and photographed upon their arrival in the US, including Iranian wrestlers and academics invited to the US. The INS on July 17, 1998 published a new regulation in the Federal Register that permits exceptions to the fingerprint and photograph rule "when such action is deemed to be in the interest of foreign policy or national security."

At least 25 immigrants in the United States face deportation or exclusion from the country largely on grounds of evidence that they are not permitted to examine and that comes from people who are not identified. In most cases, the immigrants are accused of association with terrorists, but not actual charges of terrorism. The INS defends the practice of using secret evidence, saying that US "courts have said that the obligation of the U.S. government to protect its citizens from threats at times justifies a modification in the due process that will normally be granted in judicial proceedings." All of those being held in these cases are of Arab descent or are Muslims.

Sanctions. In May 1998, the INS announced new procedures for inspecting workplaces in search of unauthorized workers, including requirements that an INS community liaison officer be present during all raids and that "a written operation plan" be prepared and submitted to the Regional Director for approval before each raid. The number of workers apprehended at work sites has dropped, from an average of 1,465 a month in 1997 to 368 in June 1998.

The INS is experimenting with several programs that permit employers to verify the authorization to work of newly hired workers. Since November 1997, the Basic Employment Confirmation Pilot (replacing the Employment Verification Pilot) permits employers with at least one work site in California, Florida, Illinois, New York or Texas to submit the Social Security numbers of newly hired workers for verification. By July 1998, some 467 employers had implemented the Basic Pilot at 935 work sites.

Meat packers have been encouraged to participate in the employment verification pilot. According to the American Meat Institute, companies representing 80 percent of the nation's meat-processing employees are participating in the program. IBP reports that "a small number of employees have been released from employment" after the Basic Employment Confirmation Pilot found their Social Security numbers were invalid or not assigned to them.

The Center for Immigration Studies has developed an Employer Sanctions Database that lists the names of US employers fined for the knowing hire or continued employment of illegal aliens; violations of I-9 record-keeping requirements are not included.

Cooperation. The IIRIRA prohibits state and local governments from enacting non-cooperation agreements with the INS, such as those that prohibit local police from informing the INS about suspected illegal aliens they apprehend. In the San Joaquin County in central California, the district attorney fired an assistant in the family support division in July 1997 for violating the non-cooperation policy and privacy rules. The assistant alerted Border Patrol agents that a 26-year old illegal immigrant-- a convicted heroin smuggler--was due at her office for an appointment about support payments for his children. The Mexican national had been deported but returned to the US.

The arbitrator who reinstated her with back wages said: "It is difficult for the average person to comprehend that the chief law enforcement office in the county instructs its employees to ignore criminal behavior they observe."

A federal judge upheld IIRIRA provisions, saying that they do not mandate that public workers turn in illegal immigrants but only allow employees to inform the INS if they choose to do so.

Naturalization. In FY 97, 569,822 foreigners were sworn in as US citizens. The INS in August announced that fees for naturalization applications would increase on January 15, 1999 to $225 from the current $95, and that fees for immigrant visas would rise on October 12, 1998 to $220 from $130. The additional funds are to be used to speed up the processing of applications, currently an average of 18 months. The backlog of naturalization applicants was 1.9 million in July 1998.

Some 850,000 immigrants are expected to apply for naturalization in FY98, down from the record 1.5 million applications in FY97. Analysts attribute the falloff in applications to the lengthy waits, the easing of "anti-immigrant" policies, and the restoration of some welfare benefits to legal immigrants.

About 10 percent, or 50,000, of the naturalization applicants in southern California are claiming to be disabled, which exempts them from English language and civics tests; in San Francisco, 20 percent of the applicants claim disabilities and in Miami, 30 percent claim disabilities. Those seeking exemptions from English language and civics exams must include with their naturalization applications a form signed by a doctor or licensed clinical psychologist attesting to the applicant's inability to take the tests.

There are about four million births a year in the US. Virtually all persons born in the US are therefore US citizens, but many other countries permit persons born in the US to retain the citizenship of their mothers or parents as well. It is believed that about 500,000 babies born in the US each year are, or could be, citizens of another country.

Asylum. The 1996 IIRIRA expanded the grounds for granting asylum to include persons who have suffered from a country's restrictive policies on childbearing. Up to 1,000 foreigners a year can be recognized as refugees under this provision, but the INS is not likely to remove from the US those who were forced to undergo abortion or involuntary sterilization or were persecuted for resistance to coercive population control programs. The number of foreigners protected in the US by this provision could thus exceed the annual cap.

The Chicago Tribune on August 2, 1998 profiled three Chinese women who had paid $20,000 each to a smuggler who gave them fake Japanese passports and put them on a plane to Chicago. They were detained by the INS, applied for asylum and were released into the custody of US friends and relatives. The women's children remain in China.

About 1,525 Chinese women and their husbands have applied for asylum under the new childbearing provision and 322, or 21 percent, were recognized as refugees. One academic Chinese couple in the US had a second child, and the woman, who was pregnant with her third child, won asylum on the grounds that returning to China as required by her visa might subject her to a forced abortion.

DV 2000. The "Diversity Visa" 2000 lottery was announced in August. Some 50,000 foreigners with at least a high school education or equivalent are selected from six to seven million entries for immigration visas or greencards. Nationals of countries that sent fewer than 50,000 immigrants to the US over the past five years are eligible to enter the lottery by mailing applications during October 1998. For the first time, unauthorized foreigners in the US will not be permitted to adjust their status in the US if they win diversity visas; they will have to return to their countries of origin to be interviewed.

Nationals of Britain, Canada, China (including Taiwan), Colombia, the Dominican Republic, El Salvador, Haiti, India, Jamaica, Mexico, Poland, the Philippines, South Korea and Vietnam may not apply.

National Interest. The Immigration Act of 1990 increased the number of visas available to employment-based immigrants to 140,000 a year, and created four major preferences. The first employment preference admits up to 40,040 "priority workers" and their families as immigrants; the first priority is sub-divided into: (1) persons of extraordinary ability, 2,060 in FY96; (2) outstanding professors and researchers, 2,633; and, (3) multinational executives and managers, 6,354. Most of those admitted in each category are already in the US, for example, 80 percent of the persons of extraordinary ability adjusted their status to immigrant in FY96.

The Wall Street Journal on August 20, 1998 reported that INS clerks are not consistent in defining "extraordinary ability," and that since 1995 it has been trying to develop consistent rules for determining who qualifies. The INS says that those seeking to show they have extraordinary ability need at least three types of acclaim: outstanding reviews, press coverage and a large income. In some cases, rejected applications are submitted with a fresh cover letter and approved.

The INS is using the denial of an immigrant green card to Indian engineer Shekhar Scindia as a precedent. Scindia, an expert at protecting bridges from earthquakes, had a job offer from the New York State transportation department. The INS appeals panel in April 1998 rejected his visa request by saying that New York must first seek US engineers.

Barry Newman, "The 'National Interest' Causes INS To Wander Down Peculiar Paths," Wall Street Journal, August 20, 1998. Ronald Smothers, "Secret Data and Hidden Accusers Use Against Some Immigrants," New York Times, August 15, 1998. Patrick McDonnell, "Worker Fired for Turning In Illegal Immigrant Reinstated," Los Angeles Times, August 15, 1998. Cindy Richards and Teresa Puente, "Bid for Asylum a Tortuous Path," Chicago Tribune, August 2, 1998.