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September 2001, Volume 8, Number 9

INS: Border, Sanctions, TPS

James W. Ziglar was confirmed as the new Immigration and Naturalization Service commissioner on July 31, 2001. Ziglar in August 2001 said that he will soon begin a major restructuring of the INS, dividing it into service and enforcement arms. The INS in 2001 has 34,000 employees and a $4.8 billion budget, and has been slated for a $5.5 billion budget and 1,364 new positions in 2002.

Border. The INS in August 2001 announced that it may send some suspected immigrant smugglers back to Mexico to face criminal charges there. The INS said: "Both countries are committed to looking at innovative ways to increase the number of smugglers who are prosecuted because they are putting people's lives at risk."

During busy periods, inspectors at the San Diego port of entry catch 50 or more cars each week with migrants stuffed into empty gas tanks, crammed behind dashboards and even hidden inside vinyl car seats. The U.S. attorney's office in San Diego, however, prosecuted fewer than three percent of the 10,680 people detained by the INS at the border in 2000.

The General Accounting Office released a report in August 2001 that concluded that there was "no clear indication" that fewer unauthorized aliens are attempting to enter the US. Instead, the GAO concluded, INS operations Gatekeeper, Rio Grande, Hold the Line and Safeguard have pushed border-crossers into remote areas, where 1,013 have died since October 1997, mostly of heat exposure or drowning.

The INS apprehended one million foreigners in FY94, and 1.6 million in FY00. The INS says it is surprised by how many foreigners are willing to take the risk to enter the US over deserts and mountains.

Imperial Beach, California, a city of 26,000, was once a corridor for migrants headed northward. Since Operation Gatekeeper put agents visibly on the westernmost 66 miles of the Mexico-US border, apprehensions and "migrant traffic" has dropped sharply, and residents say their quality of life has improved, with fewer cars stolen and less trash left behind by migrants.

The Mexican state of Baja California took the unprecedented step in August 2001 of designating two high-risk zones on the Mexican side of the border-- La Rumorosa and Mesa Andrade--off-limits to people trying to cross illegally into the United States. Police are empowered to stop people from entering these areas, from which many migrants head to the US. Most of the deaths have been on the US side of the border.

Sanctions. Former INS Commissioner Doris Meissner, in an August 2001 Op-Ed, concluded that employer sanctions, fines on US employers who knowingly hire unauthorized workers, "have not worked. There really is not any reliable way for employers to comply with the law… neither Republicans or Democrats or a broad range of interest groups is prepared to support an employer sanctions program that actually would work."

The major reasons for their failure, she says, include: (1) continuing illegal immigration and employer demand for unauthorized workers; (2) the ready availability of counterfeit documents and widespread resistance to the creation of a national identification card; and (3) an INS that allocates its resources for interior enforcement to the detection and removal of criminal aliens, not preventing the employment of unauthorized workers.

Employers complain that they are caught between two competing federal agencies. The INS wants them to determine that the work authorization identification presented after a worker was hired appeared "reasonably genuine." The Justice Department's separate Office of Special Counsel does not want employers to require specific documents, or to demand more or specific documents from "foreign-looking" workers. Most employers thus accept most documents that are presented by workers, and the INS generally levies fines on employers only if the employer was involved in smuggling the workers into the US.

In June 2001, the INS had 1,899 investigators. The INS reported that the number of unauthorized workers apprehended at work fell from 11,989 in FY93 to 953 in FY00. The number of citations against employers for violating employer sanctions laws also fell sharply.

Sanctions enforcement has weakened since it began in 1987. That year, for example, the INS cited Mester Manufacturing, a Los Angeles-area waterbed manufacturer, for knowingly hiring illegal workers and imposed a $3,000 fine. In 1999, the INS ordered Interstate Roofing in Portland to fire 76 of 128 employees, but did not fine Interstate. Its owner said that the workers who were fired- 56 of whom had valid Oregon driver's licenses- stayed in the area and went to work for other employers.

Temporary Protected Status/Asylum. Salvadorans in the US before February 13, 2001 were permitted to apply for TPS so they could send remittances to El Salvador, which was hit by earthquakes in January and February 2001. By the end of July 2001, some 221,000 Salvadorans applied.

As of March 31, 2001, some 51 percent of the 328,000 asylum applications waiting to be processed had been filed by Salvadorans; another 30 percent were filed by Guatemalans. Most of these asylum applications were filed at least 10 years ago, and most of the applicants will become immigrants under the 1997 Nicaraguan Adjustment and Central American Relief Act.

Every year, hundreds of gays, many from Latin America, apply for asylum in the US based on persecution on account of their sexual orientation. Once in the US, many of those who receive asylum nonetheless find themselves shunned by their countrymen here, who often reflect the anti-gay prejudices of their homeland.

Foreigners can receive asylum in the US if they face a well-founded fear of being persecuted because of their race, religion, nationality, political opinion or social group. In 1994, the Board of Immigration Appeals published a decision that a gay man was eligible for asylum because of a fear or persecution for belonging to a social group, and Attorney General Janet Reno instructed immigration officers and courts to use the decision as a precedent.

Many immigration advocates have been very critical of federal immigration law changes made in 1996, including: (1) the introduction of "expedited removal" of foreigners arriving with no or false documentation who cannot make a credible claim to an INS officer that they face persecution at home; and (2) the INS practice of detaining most asylum seekers. The bipartisan Refugee Protection Act (S. 1311) would make expedited removal more difficult, halt detention, and eliminate the current 10,000-a-year limit on the number of successful asylum applicants who can become immigrants.

The New York Times on August 15, 2001 profiled a Colombian who attempted to enter the US with an invalid visa, and was returned to Colombia by order of INS officials in Miami. He was arrested three months later as he tried to cross the Mexico-US border, but this time he established to INS inspectors a "credible fear" of persecution at home, arguing that he was caught between left- and right-wing fighters, both of whom demanded payments from him. By establishing credible fear, the man was able to present his case to an immigration judge.

Critics point out that, in Miami, he did not persuade the INS, but in Texas he did. They want to revert to the pre-96 practice of having all foreigners who request asylum go before an immigration judge.

In FY00, the US deported or removed 182,000 foreigners, including 86,000 who were in "expedited removal," meaning that they attempted entry with false or no documents, INS inspectors did not find their claims of persecution credible, and they were removed and barred from returning legally to the US. Critics note that, of those foreigners who are referred by INS inspectors to an asylum officer, 80 percent are regarded as showing credible fear and are given a chance to make their case to an immigration judge. INS defenders say that this shows the system is working; inspectors are referring foreigners with credible fear for secondary inspection.

The INS announced plans to raise fees for immigration benefits, for example, the cost of applying for naturalization would increase from $225 to $260, and the cost of applying for immigrant status would rise from $220 to $255. The INS says the expected $127 million in additional funds are needed to reduce waiting times, which are about nine months for naturalization and 16 months for immigration applications. About 6,100 INS employees process a backlog of 3.9 million applications for immigration benefits, including 600,000 naturalization applications and 900,000 pending green-card applications.

A Ukrainian admitted to the US as a refugee stabbed to death six of his relatives in California in August 2001. Most immigrants, but not refugees, must provide a police clearance from their local authorities. The Ukrainian entered the US under the 1989 Lautenberg amendment, which makes Ukrainian Catholics, Ukrainian Orthodox believers, Evangelical Christians and Jews from the former Soviet Union automatically eligible for refugee status in the US if they can show individual acts of persecution against them.

Diversity Visas. The Department of State announced the FY2003 Diversity Immigrant Visa Lottery to be held during October 2001 for the 2003 visas. Each year, five to 10 million foreigners apply for the 50,000 visas available for nationals of countries that have sent fewer than 50,000 immigrants to the US during the previous five years.

About 90,000 foreigners receive letters saying they have "won" an immigrant visa in the lottery, but only 50,000 visas are available- some of those who win do not have the required high school diploma or change their minds about immigration. For FY02, the allocation of visas is: Europe, 20,877; Africa, 20,263; Asia, 5,859; South America, 2,230; Oceania, 763; and North America, 8.

An attorney in New York City was arrested for illegally filing multiple applications for diversity visas. He charged $1,000 to file up to 27 applications for each person by using misspelled versions of the applicant's name.

Gregory Alan Gross, "Baja bars immigrants from 2 perilous areas," San Diego Union-Tribune, August 24, 2001. Michelle Mittelstadt, "Efficiency, dignity will be goals of INS, new chief tells clients," Dallas Morning News, August 17, 2001. Jonathan Peterson, "INS Penalty System Falls Down on Job," Los Angeles Times, August 6, 2001. GAO. 2001. INS' Southwest Border Strategy: Resource and Impact Issues Remain After Seven Years. GAO-01-842, August 2. Davidson, Miriam and Jeffry Scott. 2000. Lives on the Line: Dispatches from the U.S.-Mexico Border. University of Arizona Press.