December 01, 2003
By Margaret D. Stock*
The terrorist attacks of September 11, 2001 have spurred a burst of interest in United States immigration laws. Immediately after the attacks, the news media filled with reports that the terrorists had entered the United States on student visas, Immigration & Naturalization ("INS") border officials and State Department consular officers had failed to screen them closely, and, once they were in the United States, INS had failed to track terrorists who violated the terms of their visas . Many elected officials and commentators called for immediate changes in US immigration laws to lessen the likelihood of future terrorist attacks . Some have called for a return to a "Fortress America," proposing harsh measures to target or reduce immigration altogether .
Calls for changes to the law are reminiscent of similar calls after the 1993 World Trade Center and 1996 Oklahoma City bombings . Weak United States immigration laws, however, were not the problem that allowed terrorists to enter the United States and attack on September 11, 2001. Rather, our laws already contained numerous provisions barring terrorists or allowing their removal from the United States. The terrorists, however, took advantage of flaws in the implementation of those laws. Consequently, much new and proposed legislation giving INS and other agencies new legal tools to deal with the terrorist problem may misfire. While some of the proposed changes simply constitute funding of existing laws that have not been supported adequately with people and resources, other changes will not demonstrably enhance US security, and will have a detrimental impact on the economy and global relations. Still others are destined to fail without serious, fundamental reforms of the agency charged with most enforcement of our nation's immigration laws - the Immigration & Naturalization Service ("INS"). It would be a grave mistake for America to make a "war on immigrants" part of the "war on terrorism." To enhance our security through changes in our immigration system, Congress must look beyond many of the current "law reform" proposals to fix the serious organizational problems, resources, and technology issues that have been plaguing the INS for years.
More than thirty (30) million foreigners enter the United States every year as non-immigrant visitors, students, and temporary workers . More than half a million enter as refugees, permanent residents, and family members of US residents . Approximately ten percent of the U.S. population is foreign-born . In a globally-connected society and for our economic and social well-being, the United States cannot afford to adopt anti-immigration measures not specifically designed to target the terrorists. Instead, we must focus on measures to find and screen out the tiny minority of foreigners who intend to commit terrorist acts.
A. Immigration law before September 11, 2001
All foreigners ("aliens") who seek to enter the United States are subject to our immigration laws. U.S. immigration laws are primarily found in the Immigration & Nationality Act ("INA").  The INA creates two checks on foreigners seeking to enter the United States. First, most foreigners must apply overseas for a visa . The INA grants U.S. State Department consular officers overseas broad and largely unreviewable power to deny visas to foreigners who are "inadmissible" for any reason. As a second check, INS officials at any United States port-of-entry can reexamine persons seeking admission and deny them entrance even if they have been granted a visa to enter. Thus, existing law contains two physical checks on most potential terrorists trying to enter the United States .
1. National security provisions of U.S. immigration law
The INA contains numerous national security-related grounds upon which a terrorist can be denied a visa or permission to enter the United States. For example, a consular officer or INS agent can deny a visa or admission if the consular officer or INS agent has "reasonable ground to believe" the person seeks to enter the U.S. to engage "solely, principally, or incidentally" in any unlawful activity; the person has engaged in terrorist activity;  or the person is likely to engage in terrorist activity after entry  . Additionally, a foreigner can be denied entry if the Secretary of State has reasonable ground to believe the person's admission or activities would have potentially serious adverse foreign policy consequences for the United States . Thus, the law already contains several provisions that can be used to deny admission to terrorists or potential terrorists.
After a foreigner enters the United States, he can be detained and removed for engaging in terrorist activity. The terrorist-related grounds for deporting or removing someone are very broad. A person can be removed for planning terrorist activities, fundraising for a terrorist group, soliciting membership in a terrorist group, or providing material support for terrorist activity . A person is also removable if he has engaged in "any other criminal activity which endangers public safety or national security," regardless of whether he has been convicted of a crime . Lastly, a person can be denied asylum in the United States if the person is a threat to national security, or is a terrorist or suspected terrorist .
As has been reported repeatedly in the media, the INS currently has extraordinarily broad powers to detain persons who have violated U.S. immigration laws. INS can arrest and hold a person in administrative detention for at least forty-eight (48) hours - and often longer - if the person is suspected of even a minor immigration violation . While many of those arrested can eventually seek release by posting a bond, persons charged with deportability for terrorist activity or certain violent crimes are ineligible to apply for release from custody while they await removal from the United States . Even if a person is eligible to seek bond while awaiting a hearing before an immigration judge, the judge can deny bond altogether if the person is a threat to national security, a danger to the community, or a flight risk .
U.S. law requires most foreigners who enter the United States to be issued an entry document, INS Form I-94, which contains a unique number . When a person enters the United States, an INS agent at the border tears off and collects part of the entry document containing the number. INS is supposed to enter the number into a tracking system. The foreigner is required by law to carry the document with him and give it back to INS upon departure . When the foreigner leaves the United States, INS is supposed to collect the departure portion of the form and record the foreigner's exit. INS, unfortunately, has never been able to collect and use the data properly .
Current U.S. immigration laws also contain provisions allowing the Attorney General to require foreigners in the United States to register and be fingerprinted . While the fingerprinting provisions have been waived by regulation for most non-immigrants , the Attorney General can require such fingerprinting after publishing a notice in the Federal Register. The Attorney General also has the power, in his discretion, to order foreigners to notify him of their current addresses and other information . INS does fingerprint all lawful permanent residents over the age of fourteen (14), and collects fingerprint information on foreigners who have been turned away at the border or placed in removal proceedings. If a foreigner is required to register, he must notify the INS of any address change within ten (10) days or face deportation . INS, however, has not been able to process address changes reported to it in any efficient fashion. Additionally, INS does a poor job of using the fingerprint data that it does collect .
With regard to students, there are special requirements. More than half a million foreign students are currently enrolled in schools and colleges in the United States . Foreigners who wish to study in the United States must ordinarily apply for a visa and prove that they are eligible to enter the United States . Once here, their schools are required to keep track of them and report information about them to the INS, including the students' current address, date of enrollment, admissions applications and supporting documents the school uses to determine eligibility, the date and reason for termination of a student, and any academic disciplinary actions taken against the student due to any criminal convictions. While INS collects this data, it does not do an adequate job of monitoring it, analyzing it, or taking action against foreign students who leave school or otherwise violate their status.
Finally, INS does a very poor job of processing immigration-related petitions. Often a foreigner who enters the United States will file an application to change his status, perhaps because he wants to extend his stay, attend school, or engage in some other activity different from that for which he was admitted. INS is so backlogged that it is often unable to process such requests in a timely manner. A visitor who requests a six-month extension of stay, for example, might wait more than six months for the request to be processed. Slow processing means that INS does not keep its databases on foreigners up-to-date. Consequently, INS sometimes cannot tell whether a foreigner is here legally or has overstayed his visa. The backlog at INS has continued to grow over the past several years, despite increased user fees and Congressionally-mandated "prioritizing" designed to reduce the backlogs .
2. 1996 immigration legislation
In 1996, after the Oklahoma City federal building bombing, Congress rapidly passed significant changes to United States immigration laws in the form of the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRAIRA").  Together, these laws amended the INA to enact provisions advertised to the American public as anti-terrorism measures . Many of these provisions in reality, however, provided little or nothing in the way of real security for our borders. Passing these the laws, however, allowed Congressional senators and representatives to tell their constituents that they had "cracked down" on potential terrorists and illegal immigrants. They also gave rise to allegations that INS agents were exercising their new powers in an abusive manner . Shortly before the September 11 attacks, consensus was building to repeal several AEDPA and IIRAIRA provisions that had harsh effects on long-term residents and relatives of American citizens.
3. Section 110
A good example of how immigration laws are passed with good intentions and poor thought as to implementation is Section 110 of IIRAIRA. Section 110 required INS to develop an automated entry and exit control system to collect a record of departure for every alien departing the United States and match these records of departure with the record of the alien's arrival in the United States. While U.S. law strictly regulates who is allowed to enter the United States, there are few laws regulating people leaving. A corollary is that the U.S. has historically kept little data on exits. With little past emphasis on exit data collection or exit controls, the INS has done a poor job of tracking people who enter the United States and overstay their period of admission. Section 110 was supposed to ensure that entry and exit data was collected on everyone who entered the U.S., whether by land, sea, or air.
After mandating the collection of data on everyone who entered the United States, Section 110 was supposed to allow INS to monitor those who overstayed their permission to stay, presumably so that INS could find them and deport them. While Section 110 sounded like a good idea in theory, INS did not have the funds or the technology to implement it at land ports-of-entry without creating an economic crisis . A coalition of business groups and others opposed the provision on the grounds that it would lead to disastrous delays in land border crossings with very little enhancement of border security . Given that INS did not have the ability to implement Section 110, Congress withdrew the mandate to implement it in 2000 . Even had Section 110 been in place as perhaps envisioned by those who sponsored the original legislation, however, it probably would not have stopped the September 11 attacks: Most of the terrorists had not overstayed their visas, and for those who had, it is highly unlikely that INS enforcement resources would have focused on them, absent some information linking them to a potential terrorist attack .
4. Student visa tracking system
Changes in student visa legislation are yet another example of the false sense of security created by the 1996 immigration law changes. After the 1993 bombing of the World Trade Center, the INS created a task force to determine how to gather information on foreign students attending school in the United States. In 1996, as part of IIRAIRA, Congress mandated that INS implement the Coordinated Interagency Partnership for Regulating International Students ("CIPRIS") system - an electronic database for tracking students - by 2001 . INS found that it could not address all the technical problems and asked Congress for an extension of the deadline. Despite INS's failure to implement CIPRIS, however, the law still required school officials to collect information on students, send the information to INS, and verify the status of all foreign students on a regular basis. If a school failed to report to INS, INS could prohibit the school from enrolling any foreign students. Thus, the law provided all the authority necessary to track and apprehend any terrorists using student visas - if only INS could implement the law and act on the information it was gathering.
5. Expedited removal
IIRAIRA also gave INS agents at the border unreviewable and extraordinary new powers to deny admission and summarily remove persons whom INS agents suspect of presenting false documents or trying to enter the United States through fraud or misrepresentation , as well as those who pose a security threat . INS agents have applied expedited removal procedures to many people, even United States citizens, with nothing but a pro forma review by an INS supervisor . Persons subjected to expedited removal are barred from obtaining a United States visa for at least five (5) years, and probably for much longer. Expedited removal laws might seem to offer yet another weapon against terrorism, but in reality offer no additional protection not already found in existing laws.
6. Secret evidence and the Alien Terrorist Court
In IIRAIRA, Congress also enacted a new set of procedures for INS to remove those persons suspected of being terrorists, and created a new court to hear terrorist cases . Through the new procedures, Congress expanded the government's power to conduct deportation hearings with the use of secret evidence to target suspected terrorists . If INS chooses to do so, it can now remove an alien terrorist through use of a special Alien Terrorist Removal Court, composed of five (5) United States district court justices appointed by the Chief Justice of the U.S. Supreme Court. The Court's rules require special protection for the rights of those brought within its jurisdiction. To date, however, INS has chosen not to use this new court, apparently due to the fact that it is easier for INS to use secret evidence in the context of existing deportation or removal proceedings . INS has not been shy in using secret evidence to try to deport persons suspected of being terrorists or linked to terrorists . Much of the information that INS relied upon as "secret evidence," however, has been so faulty as to cause the agency to become something of a laughingstock in the intelligence community .
7. Immigration & Naturalization Service reform
Prior to September 11, 2001, weak United States immigration laws were not the problem. Rather, implementation of those laws was abysmally weak. The INS itself was under attack for its inefficiency and incompetence . Lawmakers called it the "agency from hell"  and said it was "broken beyond fixing."  News reports told of corruption, mismanagement, and an agency culture that trampled on people's rights and fostered racism and abuse  . In his campaign platform, President Bush had called for splitting the agency in two . In Senate testimony on April 26, 2001, Attorney General John Ashcroft reiterated the Administration's "intent to turn the agency around. Restructuring of the INS will be a top priority . . ."  This promise has yet to be fulfilled, although Mr. Ashcroft recently announced an internal plan to restructure INS by the fall of 2003 .
B. Immigration law after September 11, 2001
On October 26, 2001, President George W. Bush signed into law the "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism ("USA PATRIOT")" Act of 2001 . The new law contains three basic parts relating to immigration: Subtitle A of Title IV of the Act, containing stopgap measures designed to enhance security at the border between the US and Canada; Subtitle B, containing provisions relating directly to the admissibility of terrorists and those who sponsor them; and Subtitle C, containing provisions designed to help the family members of the victims of the September 11 terrorist attacks.
The provisions of Subtitle A are designed to enhance border security and intelligence collection in the short term. Among other things, these provisions waive certain caps on personnel on the Northern Border, allow INS and DOS to access FBI criminal history records through the National Crime Information Center, and mandate development and certification of technology to verify the identity of people who apply for visas or seek to enter the United States. Subtitle C deals mainly with changes designed to help victims of the September 11 attacks, such as provisions granting posthumous citizenship to lawful residents who died in the attack .
Subtitle B is of most concern, however, as it makes substantive changes to the law that are purported to enhance the Government's ability to identify and deport terrorists or potential terrorists. In fact, these new changes give little additional legal authority to INS for fighting terrorism while making it likely that INS will target foreigners who engage in mere association with persons who turn out to be terrorists. At least one change gives sweeping new power to INS to deport foreigners who are accused, but not convicted, of threatening a single person.
Section 411 of the law adds new grounds of inadmissibility for representatives of foreign terrorist organizations or any group that publicly endorses acts of terrorist activity, and spouses and children of aliens who are inadmissible on any of the terrorism-related grounds. It provides new, unreviewable authority to the Secretary of State to designate any group, foreign or domestic, as a terrorist organization, upon publication in the Federal Register ; makes a deportable offense any fundraising, solicitation for membership, or material support - even for humanitarian projects - of groups that are designated terrorist organizations by the Secretary of State (without regard to whether such activities furthered actual terrorist activity); makes a deportable offense any solicitation of funds or other material support for groups not officially designated as "terrorist organizations" unless the person can prove that he "did not know, and should not reasonably have known, that the solicitation would further the organization's terrorist activity."  The law is retroactive, although it does contain limits on retroactivity in cases where a person previously provided material support to the humanitarian projects of a terrorist organization before it was designated as such by the Secretary of State.
In addition to the changes mentioned above, Section 411 contains what is perhaps the most startling change to current law: It redefines "terrorist activity" to include the threat to use, or the use of, any "dangerous device (other than for mere personal monetary gain), with intent to endanger, directly or indirectly, the safety of one or more individuals or to cause substantial damage to property."  Lawmakers apparently passed this in the belief that airline hijackers possessed of box cutters could not be screened out sufficiently by the specific hijacking language already in the law . Under this new, broader definition of a terrorist, however, the September 11 hijackers would not have been screened out, because they had no apparent previous criminal history and had not publicly announced their intention to attack anyone. Congress's new legislation will, however, deny visas to any foreigners who have been involved in a knife fight in a bar, because they are all now inadmissible to the United States as terrorists.
Section 412 of the new law grants the Attorney General or the Deputy Attorney General a non-delegable power to certify an alien as a terrorist if the Attorney General has "reasonable grounds" to believe that the alien is a terrorist or has committed a terrorist activity . The law requires INS to detain a person so certified . The law allows the INS to detain a suspected terrorist alien for seven days before bringing immigration or criminal charges . Aliens who are detained by the INS under this section can get review of their detention by filing a petition for a writ of habeas corpus in a federal court, but their only appeal shall be to the U.S. Court of Appeals for the District of Columbia Circuit . If a person has a final order for removal but has been certified as a terrorist, and cannot be removed, the Attorney General can detain the person but must review the detention every six months. The Attorney General can continue to detain the person past six months if he can show that "the release of the alien will endanger the national security of the United States or the safety of the community or any person." 
Under current law, State Department records regarding the issuance or denial of visas to enter the U.S. are confidential and can be used only in the enforcement of U.S. law. Section 413 provides that State Department records can be provided to a foreign government on a case-by-case basis for the purpose of preventing, investigating, or punishing acts of terrorism. The new law thus raises concerns that U.S. government officials might share such information with governments that might then take action to harm individuals who are not terrorists. For example, the United States can now provide State Department records of a visa application by an Iraqi asylum seeker to the Government of Iraq - if those records are purportedly being given to the Iraqi Government for the purpose of investigating terrorism.
Section 414 expresses the sense of Congress that Section 110 of IIRAIRA, the integrated entry and exit data system, should be fully implemented at all ports of entry "with all deliberate speed and as expeditiously as practicable", and that the establishment of the Integrated Entry and Exit Data System Task Force should begin immediately. It also authorizes the funds to accomplish this goal, and emphasizes that INS should use biometric technology and tamper-resistant documents. The system must also interface with law enforcement databases to identify and detain individuals who pose a threat to the national security of the United States. The Office of Homeland Security is required to report to Congress within a year on the information that is needed from various government agencies to screen visa applicants and applicants for admission .
Section 416 of the USA PATRIOT Act requires the full implementation of the Foreign Student Visa Monitoring Program established by IIRAIRA. Section 417 requires all countries designated to participate in the Visa Waiver Program to satisfy the requirement of issuing machine-readable passports by October 1, 2003, instead of 2007. The Secretary of State is required to perform annual audits of the designation of countries participating in the visa waiver program.
Finally, USA PATRIOT Act Section 1006 makes inadmissible any person who a consular officer or the Attorney General knows, or has reason to believe, has engaged, is engaging, or will engage in an offense relating to money laundering. This Section also requires the Secretary of State to establish, within 90 days, a watch list that identifies individuals worldwide who are known or suspected of money laundering. Consular officials and INS agents must check this watch list prior to issuing visas or allowing a person admission to the United States. The theory behind this section of the law is that the perpetrators of the September 11 attacks could have been stopped if the U.S. had cracked down on money laundering . Given that the perpetrators used informal networks such as the hawala system, however, these laws may not reach terrorists so much as they force international criminal networks to move away from using the American banking system .
Existing laws, then, provide ample opportunity to stop terrorists from entering the United States, and deporting them once they arrive. Unfortunately, however, most terrorists do not advertise their intentions while applying for a visa or admission to the United States. INS agents and US consular officials cannot yet read minds and must rely on information in their databases when screening applicants. Thus, the laws are only as good as the information available to State Department and INS agents enforcing them, and the knowledge and judgment of those agents. This reality suggests that enhancing removal procedures or adding additional grounds for deportation to the law will not measurably add to our security. Even careful scrutiny of several of the people involved in the September 11 attacks would not have made a difference to their admission to the United States, because most of them had no known criminal record and no known association with an terrorist activity or organization.
The new provisions of USA PATRIOT Act, while offering a few enhancements designed to implement existing laws, will have little practical effect beyond perhaps allowing the deportation of those who unwittingly gave money to humanitarian causes that have now been linked to terrorism. The new laws, however, allow INS to deport anyone who speaks to a terrorist, debates a terrorist over the Internet, or speaks out in a manner that INS judges to be supportive of terrorists. INS can also refuse to admit or deport as a terrorist any person who threatens another using any "dangerous device" to threaten anyone -- which presumably allows INS, for example, to deport a foreigner who protests abortion outside an abortion clinic and waves a protest sign in a manner deemed to be threatening. Given INS's tendency toward draconian enforcement of its Congressionally-given powers , INS is unlikely to exercise a great deal of tact and judgment in carrying out the latest law. Finally, allowing the detention and deportation of people engaging in Constitutionally-protected speech and association, and permitting the indefinite detention of immigrants and non-citizens who are not terrorists, undermines the legitimacy of government, thus inadvertently playing into the hands of terrorists .
Weak laws did not allow the terrorists to succeed in attacking - weak implementation did. The provisions of the USA PATRIOT Act, while offering some long-needed funding and resources to enhance existing laws, do not fully solve this problem. Other proposals billed as "anti-terrorism" measures are simply repackaged "anti-immigration" measures that will do nothing to enhance security . We need to look beyond changes in the law to address the fundamental organizational problems, resources, and technology issues that are at the heart of the problem.
If current laws contain enough checks on potential terrorists, what can realistically be done to enhance US security? What flaws in the system allowed terrorists to get through?
Primarily, the terrorists got here due to a failure of the INS and other agencies to implement existing laws, share information, and screen people correctly. Terrorist Mohammed Atta, for example, was apparently admitted to the United States as a tourist . When he presented himself for inspection at the Miami airport, however, INS inspectors learned that he planned to attend pilot training in Florida - something that should only be done on a student visa granted specifically for that purpose. INS agents in Florida questioned Atta, but let him into the United States anyway . The law says that a person who is admitted as a tourist cannot be coming to the United States for the purpose of enrolling in pilot training; thus, if agents at the border had learned of Atta's intentions, they should have removed him immediately. In Mohammed Atta's case, what happened was not a failure of law, but a failure to implement the law 75]. Unfortunately, this was not the first time that INS had failed to stop a dangerous criminal from entering the United States, despite having the legal tools needed to do so .
Terrorists were able to get into the United States because existing laws are not being enforced efficiently and effectively. As those in Congress who have voted on immigration laws should know by now, lawmakers can pass laws every day, and yet if the agency charged with implementing them cannot do so correctly, those laws do nothing to fix problems. Congress has been throwing money at INS for years without discernable progress in solving many of the immigration problems that allowed terrorists into the U.S. to carry out their attacks . The net result of previous attempts to "reform" United States immigration law has been a law that is so extraordinarily complex and difficult to understand that the agency itself has stated that those who understand it are "worth their weight in gold."  In this climate, passing new and more complicated laws will not cure the problem, but merely offers a short-term bandage.
Our focus should shift to simplifying and implementing existing laws, which already provide ample legal justification for screening out terrorists or potential terrorists. With this legal framework in mind, U.S. immigration reform should first target the reform of the INS as an agency, which includes restoring judicial review of agency actions. Secondarily, and simultaneously to reforming INS, we should increase INS funding so it can properly implement existing laws; reform consular operations; improve intelligence gathering and sharing; use new technology to enhance existing procedures; track those who enter and leave the United States; and coordinate with Canada and Mexico to set up a North American perimeter to target terrorists who attempt to enter the United States through those two countries.
First and foremost, INS must be drastically reformed. Currently, the agency suffers from a well-documented schizophrenia as it unsuccessfully tries to balance its service mission and its enforcement mission . Inefficiency at the INS is a key reason why existing laws are not being implemented. It is impossible to implement laws fairly and consistently when the agency implementing them is possessed of two conflicting missions . Thus, reform of the INS should be on the top of everyone's post-attack list.
It is exactly because we are in a time of crisis that we will have the energy and will to reform this agency. Ideally, the INS should be abolished and replaced with two separate agencies - one for enforcement, one for services. Abolishing the agency entirely will allow a new agency to start afresh, without the cultural baggage of ineptitude and inefficiency that currently plagues INS. While these two separate agencies should coordinate their efforts and share information, they should be staffed and managed separately, with a cabinet-level official at the top charged with coordinating their efforts. If Congress cannot bring itself to abolish the agency, at a minimum it should speedily enact changes to the agency that will accomplish this separation internally .
Part of INS reform is bringing back judicial review of INS decisions. In 1996, Congress limited judicial review of many agency decisions in an attempt to streamline the deportation process. In doing so, Congress accelerated a trend of foregoing traditional principles of separation-of-powers in favor of leaving the creation, enforcement, and interpretation of immigration law largely in the hands of the executive branch.
The American tradition of separation of powers stands for the proposition that our legal system works best when all three branches of government participate in it. Often overlooked in arguments about the merits of separating powers is the fact that having all three branches of government involved in the system tends to make administrative agencies operate fairly, and, in the long run, more efficiently. In the case of INS, Congress has allowed the agency to operate largely outside this analysis. By delegating tremendous power to the agency, taking away judicial review, and failing to exercise appropriate oversight (other than by annually bemoaning the agency's inefficiency), Congress has directly caused the agency to operate in the out-of-control manner it does today. Without judicial review, the agency has no incentive to implement the laws that are on the books, to create fair and consistent procedures, to spend money wisely, or to rid itself of incompetent personnel. Judicial review operates as a significant separation-of-powers check on agency abuses, and helps insure consistency in decision making.
As it works to reform the INS, Congress should also enhance consular operations, and encourage the Department of State to put more emphasis on screening non-immigrants at our overseas consulates. Consulate staff cannot do their job if they have neither the necessary intelligence information nor the technological capacity to obtain accurate intelligence information in a timely manner. In addition, the State Department should be required to assign experienced officers, rather than junior staffers, to make the important decision about who is given a visa to come to the U.S.
In the past, visa denial decisions have been virtually unreviewable. Allowing consular officials to make these key decisions without any review does not enhance our security; in fact, it detracts from it, as it makes it likely that visa grants and denials are more random than they should be. In times of heightened racial profiling and general public awareness of terrorism, it is more important than ever that our visa screening system have integrity. Judicial review is part of maintaining that integrity.
D. Increase INS funding for technology enhancements
As INS is reformed, we should increase funding for technology enhancements at the agency, as well as for the Department of State . INS and DOS share responsibility for screening foreigners who come to the United States. The State Department in particular has been under funded, and the consular officers who screen foreigners seeking visas are often inexperienced, with visa-issuing duties viewed as undesirable. Both INS and DOS have obsolete computer systems, and they cannot share information easily.
INS agents at the border and State Department consular officers overseas are the "first line of defense" in the war on terrorism. To do their screening jobs accurately, however, both INS and DOS need improved access to information gathered by other federal agencies, and by international law enforcement officials. In particular, the United States needs a "super database" accessible to all INS and DOS personnel, as well as U.S. law enforcement and intelligence. The lack of such a database has been obvious to many policymakers for years, but the current crisis offers the opportunity to overcome this deficiency . In creating such a database, Congress must be careful to include safeguards against potential abuse of data, ensure the security and confidentiality of information, protect the privacy rights of individuals on whom information is collected, and establish procedures to determine how information gets into and is removed from the database. Additionally, Congress must insure that agency personnel are trained to access and use the information available to them.
US officials should be gathering biometric information on anyone who applies for a visa or who seeks to enter the United States. Technology exists to fingerprint electronically and scan the faces of everyone who seeks to enter the United States, comparing applicants with an existing "lookout" system. If the Department of State and the INS collect this information, however, they must be given the resources and training to use it.
U.S. pre-inspection programs are part of the law, but are in effect in only five (5) countries in the world - Canada, Ireland, Bermuda, the Bahamas, and Aruba - none of which are prime sources of terrorists. At these locations, however, U.S. officials check passengers for admission prior to their boarding a flight to the United States. U.S. officials should conduct more "pre-inspections" of persons traveling to the United States, particularly from countries like Saudi Arabia that may be more likely than others to send terrorists here. Pre-inspections can be conducted at overseas airports where a person's travel originates, thereby improving the likelihood of screening based on local conditions and minimizing disruption to travelers. More pre-inspections can also reduce the load on INS's detention facilities by keeping questionable travelers at home, where the travel originates, rather in INS detention facilities in the United States. In implementing pre-inspections, however, Congress must include safeguards allowing asylum protection for those who truly deserve it.
Another key security tool is a mandate that airlines transmit passengers' names at take-off to the destination airport to be checked against the look-out list. Airlines know in advance who will be flying to the U.S. U.S. authorities who receive the list can compare the passenger list to the lookout lists, thereby apprehending those who should not be permitted to enter the U.S. Currently, only about 75% of airlines transmit these lists. All airlines flying to the United States, including foreign airlines, should be required to transmit these lists.
Congress must ensure adequate, trained personnel and technological improvements at and between our ports of entry . To that end, Congress should mandate implementation of an efficient and technology-driven entry/exit system that can collect and correlate data about arrivals and departures.
Some but not all airlines currently collect such information on a voluntary basis. This important security function should be government-mandated and funded. The data collected will only be useful if correlated with better intelligence data.
As mentioned above, Congress mandated an entry-exit system for land border points of entry into the U.S. in IIRAIRA, but later withdrew the mandate because of the economic disruption likely to result from actual implementation of the system. Such a system is difficult to implement and would be exceedingly disruptive to commerce if implemented under current conditions. While pilot programs should be implemented immediately, Congress should only mandate such a system if Congress also funds the type of technology necessary to prevent huge backlogs at the borders .
I. Tracking of foreigners inside the United States
Once inside the United States, our existing laws provide that all foreigners should be tracked and removed if they overstay their permission to be here. Currently, however, INS does not devote sufficient resources to this effort. INS databases regarding foreigners are faulty. In particular, although we collect data on foreign students, INS does a poor job of tracking them and checking on them after they stop attending school. Congress should fund the computer systems and other resources necessary to implement existing law with regard to tracking those who are here in the United States. Part of that system, of course, includes providing timely processing of petitions for extensions or changes of status.
J. Coordinate with Canada and Mexico
Finally, the United States should pursue multilateral strategies with Canada and Mexico to create a North American Perimeter Safety Zone. Many commentators have noted that the best laws in the world will not stop a terrorist who has entered Canada or Mexico and sneaks into the United States illegally. A North American perimeter can bolster security through law enforcement coordination, intelligence sharing, and better joint use of enforcement resources. The U.S. also must cooperate closely with our European allies and share information that each of our intelligence services have collected. In doing so, however, we should be mindful of protecting individual privacy.
Despite the September 11 attacks, the United States continues to attract immigrants and foreign visitors. The strength of our economy and our global power projection capability depend on our integration with the global community. Terrorists did not enter the United States and attack us because our immigration laws were weak; they entered and attacked us because those laws were not properly implemented. Inefficiency and poor training at INS played a key role in the current crisis.
Common sense dictates that the war on terrorism will not be won by stopping immigration; in fact, we may lose the war by halting immigration, since such a halt will aggravate an already floundering economy, alienate many in the American community, and deprive our nation of the skills and information that foreigners bring. Any new laws must also carefully respect the civil liberties of foreigners and U.S. citizens alike.
The strength of the United States depends in large part on our nation remaining a "nation of immigrants." In fact, winning a global war on terrorism may depend on how well we interact and communicate with foreigners. Our immigration laws must enhance that interaction and communication, not inhibit it. Our laws must also continue to stress unifying American families, providing a haven to those who flee persecution overseas, welcoming foreigners who can contribute to the growth of our economy, and naturalizing new citizens who have demonstrated a commitment to our Constitution and laws. Overall, we must have a fair and predictable immigration system. A first step in accomplishing this is reforming INS. The current crisis offers the opportunity to do this.
*Assistant Professor, Department of Law, United States Military Academy, West Point, NY. The statements, opinions, and views expressed herein are those of the author only and do not represent the views of the Federalist Society, the United States Military Academy, the Department of the Army, or the Department of Defense.
1. See, e.g., Patrick J. McDonnell, America attacked, Policy changes: Immigration system allows some to sidestep procedures, LOS ANGELES TIMES, Sept. 16, 2001, available at http://www.latimes.com/news/nationworld/nation/la-000074616sep16.story; Peter Slevin & Mary Beth Sheridan, Suspects entered U.S. on legal visas, WASH. POST, Sep. 18, 2001, at A6.
2. See Mary Beth Sheridan, Tougher enforcement by INS urged: Lawmaker wants continual checks of visa holders' status, more staff at borders, WASH' POST, Sep. 18, 2001, available at http://www.washingtonpost.com/wp-dyn/articles/A46769-2001Sep17.html; Gary Martin, Lawmakers want tighter border, SAN ANTONIO EXPRESS-NEWS, Sep. 19, 2001, available at http://news.mysanantonio.com/story.cfm?xla=saen&xlb =987&xlc=303654&xld=987; Matt Pyeatt, Terror attack prompts look at immigration policy, CNSNews.com, Sep. 19, 2001, available at http://www.cnsnews.com /ViewNation.asp?Page=\Nation\archive\ 200109\NAT20010919a.html.
3. See, e.g., Mark Krikorian & Steven Camarota, How did the terrorists get in? SAN FRANCISCO CHRON., Sep. 19, 2001, available at http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2001/09/19/ED192385.DTL (arguing for a temporary reduction in legal immigration in the wake of the September 11 attacks).
4. The Oklahoma City bombing, in particular, triggered Congressional passage of two of the most widely-criticized and harshest immigration laws in American history, the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. 104-132, 110 Stat. 279 (Apr. 24, 1996), and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRAIRA"), Pub. L. 104-208, 110 Stat. 3009 (Sept. 30, 1996).
5. U.S. Immigration & Naturalization Service, STATISTICAL YEARBOOK (1999 ed.) at Table 36, available at http://www.ins.usdoj.gov/graphics/aboutins/statistics/ 99yrtemp.htm.
6. Id. at Tables 4 & 24.
7. See U.S. Census Bureau, Quarterly Estimates of the United States Foreign-Born & Native Resident Populations, Apr. 1, 1990 to Jul. 1, 1999, available at http://www.census.gov/population/estimates/nation/nativity/fbtab001.txt.
8. 8 U.S.C. §§ 1101-1537 (2000).
9. See 8 U.S.C. §§1181; 8 C.F.R. 212.1. The major exceptions are Canadians, who are not required to have visas to enter the United States for short visits, and citizens of those countries participating in the Visa Waiver Program, which allows for reciprocal visa-free travel for Americans traveling to participating countries. Canadians and others seeking to enter without visas are still subject to inspection and can be denied entry for security reasons.
10. Obviously, illegal entrants who evade border controls entirely are not subject to any checks. The United States has been struggling for decades with the problem of those who "enter without inspection," with little apparent progress. According to the INS, all of the nineteen (19) September 11 terrorists entered the United States with visas. Accordingly, this paper does not address the illegal entrant issue directly. The same arguments about agency resources, management, and technology, however, apply equally to the illegal entrant problem.
11. 8 U.S.C. §1182(a)(3)(A)(ii).
12. 8 U.S.C. §1182(a)(3)(B)(i)(I). Terrorist activity is broadly defined to include hijackings, sabotage, or assassinations; the use of biological agents, chemical agents, or nuclear devices; as well as the use of any firearm "with intent to endanger . . . the safety of one or more individuals . . ." 8 U.S.C. §1182(a)(3)(B)(ii). Engaging in terrorism includes soliciting funds for terrorist activities or organizations, soliciting members for a terrorist group or activity, providing any type of material support to terrorists, gathering information on potential targets, and preparing or planning terrorist activities. 8 U.S.C. § 1182(a)(3)(B)(ii) & (iii).
13. 8 U.S.C. §1182(a)(3)(B)(i)(II).
14. 8 U.S.C. §1182(a)(C).
15. 8 U.S.C. §1227(a)(4)(B).
16. 8 U.S.C. §1227(a)(4)(A)(ii).
17. 8 U.S.C. §1158(b)(2)(A)(iv) & (b)(2)(A)(v).
18. Previously, INS had authority to detain a person for 24 hours before charging him. On September 28, 2001, the Department of Justice publishing an interim regulation, extending the period of time to 48 hours. See 66 Fed. Reg. 48334 (Sep. 28, 2001); 8 C.F.R. § 287.3(d). A person may be detained without a warrant of arrest under the authority of 8 U.S.C. §1357.
19. 8 U.S.C. §1226(c).
20. See, generally, 8 U.S.C. §1226; 8 C.F.R. §236.1.
21. 8 C.F.R. §§231.1 & 264.1.
22. 8 C.F.R. §231.2.
23. In 1997, the Office of the Inspector General found that the principal INS record-keeping system for tracking nonimmigrant overstays, the Nonimmigrant Information System (NIIS), does not produce reliable data. See OFFICE OF THE INSPECTOR GEN., U.S. DEP'T OF JUSTICE, IMMIGRATION & NATURALIZATION SERVICE MONITORING OF NON-IMMIGRANT OVERSTAYS, Rep. No. I-97-08 (Sep. 1997), available at http://www.usdoj.gov/oig/i9708/i9708toc.htm. Another OIG report discovered a "lack of reliable data" after an audit at pre-clearance airports in Canada. See OFFICE OF THE INSPECTOR GEN., U.S. DEP'T OF JUSTICE, THE IMMIGR. & NATURALIZATION SERVICE'S SYSTEM DATA PERTAINING TO SECONDARY INSPECTIONS AT SELECTED PRECLEARANCE AIRPORTS, Rep. No. 01-11 (March 20, 2001), available at http://www.usdoj.gov/oig/au0111.index.htm. Yet another Inspector General report on INS attempts to implement an automated system for tracking arrivals and departures using Form I-94 concluded that "INS has not properly managed the project" and "despite having spent $31.2 million on the system from FY 1996 to FY 2000, the INS . . . does not have clear evidence that the system meets its intended goals . . ." OIG reported that INS needed $57 million more from FY 2001 to FY 2005 to "complete the system." OFFICE OF THE INSPECTOR GEN., U.S. DEP'T OF JUSTICE, THE IMMIGR. & NATURALIZATION SERVICE'S AUTOMATED I-94 SYSTEM, Rep. No. I-2001-18 (Aug. 6, 2001), available at http://www.usdoj.gov/oig/au0118/exec.htm.
24. 8 U.S.C. §1302.
25. 8 C.F.R. §264.1(e).
26. 8 U.S.C. §1305.
27. 8 U.S.C. §1227(a)(3)(A); see also 8 U.S.C. §1305.
28. The most notorious example of INS failing to use its own data properly is the case involving Rafael Resendez-Ramirez, a Mexican serial killer who was released from INS custody after agents failed to update their fingerprint database to show that he was wanted for murder; after being released by INS, Resendez-Ramirez killed four more people. INS agents were apparently poorly trained in how to access the database. See Brent Walth & Kim Christensen, INS bureaucracy, blundering create "the agency from hell," OREGONIAN, Dec. 11, 2000, at A01 (describing how INS agents discarded a training memo that instructed them how to use the agency's fingerprint data).
29. See Beth McMurtrie, Foreign Enrollments Grow in the U.S., but So Does Competition From Other Nations, CHRON. OF HIGHER EDUCATION, Nov. 16, 2001, at A45.
30. 8 U.S.C. §1101(a)(15)(F), (J), & (M).
31. President Bush has called for a "six-month standard" for review of immigration applications, a standard that INS does not appear to be even close to meeting. See President George W. Bush, Address at Ellis Island Naturalization Ceremony (July 10, 2001).
32. Anti-Terrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 279 (Apr. 24, 1996); Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. 104-208, 110 Stat. 3009 (Sept. 30, 1996).
33. For example, IIRAIRA created the Alien Terrorist Removal Court.
34. See, e.g., Richard Read, Overwhelmed, demoralized INS develops culture of abuse, racism, OREGONIAN, Dec. 14, 2000; Anthony Lewis, Abroad at Home: Cruel and Unneeded, N. Y. TIMES, Oct. 5, 1999 (quoting Phillip S. Anderson, past president of the American Bar Association, as saying that INS is "an agency out of control").
35. Such an economic crisis is occurring now because of new procedures INS has instituted in the wake of the September 11 attacks. See, e.g., Anthony DePalma, Slow Crawl at the Border, N. Y. TIMES, Oct. 21, 2001. This crisis will be magnified further if Section 110 is implemented with current INS resources and personnel.
36. See S. Rep. No. 105-197 (Jun. 1998). This report from the Senate Judiciary Committee, then chaired by Senator Orin Hatch (R-UT), noted that catastrophic delays that would accompany the implementation of a Section 110 entry-exit system at land borders. For example, the report cited testimony of a witness who estimated, using calculations based on the number of vehicles crossing the Ambassador Bridge in Detroit in one day and the number of seconds in a day, that implementing a Section 110 entry-exit system at that land border port of entry would lead to a delay of more than 2 1/2 days.
37. See INS Data Management Improvement Act of 2000, P. L. 106-215, 114 Stat. 337 (Jun. 15, 2000). In this new law, Congress required INS to create a centralized database to organize and coordinate entry and exit data that was currently being collected at ports of entry, rather than collecting additional data.
38. INS claims not to have the resources to go after aliens who have been ordered deported, let alone to investigate students who have overstayed their visas. See, e.g., Julia Malone, INS has been unable to enforce 300,000 deportations, ATLANTA JOURNAL-CONSTITUTION, Oct. 12, 2001, available at http://www.accessatlanta.com/ajc/terrorism/investigation/1012deport.html.
39. IIRAIRA §641(a), codified at 8 U.S.C. §1372.
40. 8 U.S.C. §1225(b)(1)(A).
41. 8 U.S.C. §1225(c).
42. See, e.g., Brent Walth & Kim Christensen, INS bureaucracy, blundering create "the agency from hell," OREGONIAN, Dec. 11, 2000, at A01 (recounting story of Gregorio Diaz, a U.S. citizen who was expeditiously removed to Mexico by INS agents at O'Hare Airport, who believed he was falsely claiming to be born in the United States).
43. See 8 U.S.C. §1182(a)(9)(A). If INS cites the reason for removal as involving fraud or misrepresentation, the person is additionally barred from entering the United States under 8 U.S.C. §1182(a)(6)(c)(i), which has no time limit.
44. 8 U.S.C. §§ 501-507.
45. The use of secret evidence against foreigners suspected of being a danger to national security is not new, but dates back at least fifty (50) years to World War II. See Knauff v. Shaughnessy, 338 U.S. 537 (1950) (discussing the use of secret evidence against aliens during World War II).
46. See, generally, Martin Schwartz, Niels Frenzen, & Mayra L. Calo, Recent Developments on the INS's Use of Secret Evidence Against Aliens, 2 IMMIGRATION & NATIONALITY LAW HANDBOOK 300-11 (2001 ed.).
47. Id. at 309 ("In recent years the INS has used secret evidence, with a few exceptions, primarily against Arabs and Muslims.").
48. See, e.g., Andrew Cockburn, The Radicalization of James Woolsey, N. Y. TIMES, July 23, 2000 (describing how former CIA Director James Woolsey defended Iraqis whom INS attempted using "secret evidence") ("Finally free to read what the government had fought to conceal, he was astonished to discover that the case against his clients was, as he put it, 'a joke.'").
49. See, e.g., Brent Walth & Kim Christensen, INS bureaucracy, blundering create "the agency from hell," OREGONIAN, Dec. 11, 2000, at A01, available at http://www.oregonlive.com/ins/index.ssf?/news/oregonian/00/12/lc_21bungle11.frame; OFFICE OF THE INSPECTOR GEN., U.S. DEP'T OF JUSTICE, IMMIGR. & NATURALIZATION SERVICE MANAGEMENT OF PROPERTY, Rep. No. 01-09 (Mar. 2001) (finding that "INS did not adequately account for property and that immediate corrective actions are necessary"); THOMAS A. ALEINIKOFF, DAVID A. MARTIN, & HIROSHI MOTOMURA, IMMIGRATION & CITIZENSHIP 251 (1998 ed.) ("INS was once respected as a relatively well-run and efficient administrative agency . . . But as its tasks expanded and the statute and regulations became more complex, . . . [m]anagement systems became badly outmoded, and tales of long delays . . ., lost files, and poor morale . . . became distressingly common").
50. Zoe Lofgren, D-Calif., quoted in Brent Walth & Kim Christensen, INS bureaucracy, blundering create "the agency from hell," OREGONIAN, Dec. 11, 2000, at A01.
51. Id., quoting Harold Rogers, R-Ky.
52. See, e.g., Kim Christensen, Richard Read, Julie Sullivan, & Brent Walth, Unchecked power of the INS shatters American dream, OREGONIAN, Dec. 10, 2001, at A01 ("one in seven of the agency's 32,000 employees was the subject of an internal investigation in 1999").
53. See Republican Platform 2000, available at http://www.rnc.org/GOPInfo/Platform/2000platform4 (endorsing the recommendations of the U.S. Commission on Immigration Reform, including the recommendation that the Immigration and Naturalization Service be split into "two agencies, one focusing on enforcement and one exclusively devoted to service").
54. Attorney General John Ashcroft's Testimony Before The Senate Committee On Appropriations: The President's FY 2002 Budget Request for the Department of Justice
April 26, 2001, available at http://www.usdoj.ins.gov.
55. Press Release, U.S. Dep't of Justice, Department Of Justice Announces INS Restructuring Plan Splitting Service & Enforcement Functions (Nov. 14. 2001), available at http://www.ins.usdoj.gov/graphics/agrel.pdf.
56. Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), P. L. 107-56, 115 Stat. 272 (Oct. 26, 2001).
57. For example, Section 421 provides special immigrant status to any alien whose family or employment-based immigrant petition, fiancé visa, or application for labor certification was revoked or terminated due to the death, disability, or loss of employment (due to the physical damage or destruction of the business) of the petitioner, applicant, or beneficiary as a direct result of the terrorist attacks; Section 422 provides benefits to any alien (and the alien's spouse and children) who was legally in a nonimmigrant status and was killed or disabled as a direct result of the terrorist attacks.
58. The State Department had designated some thirty-nine (39) such groups as of December 5, 2001. 59. See Press Statement, Philip T. Reeker, Statement on the Designation of 39 Organizations on the USA PATRIOT Act's "Terrorist Exclusion List" (Dec. 6, 2001), available at http://www.state.gov/r/pa/prs/ps/2001/index.cfm?docid=6695.
60. USA PATRIOT Act of 2001, §411(a)((1)(F).
61. Id. at §411(a)(1)(E).
62. 8 U.S.C. §1182(a)(3)(B)(ii) already excluded from the United States persons who have hijacked or plan to hijack aircraft or other conveyances, regardless of whether they use weapons in doing so.
USA PATRIOT Act of 2001, §412(a).
63. Id. If the person is determined not to be removable from the United States, the person may no longer be detained.
65. USA PATRIOT Act of 2001, §412(b)(3). Any district court handling such a habeas case is also bound by the decisions of the U.S. Court of Appeals for the District of Columbia Circuit. Id. at §412(b)(4).
66. USA PATRIOT Act of 2001, §412(a)(6).
67. Section 415 authorizes the Office of Homeland Security to be included in the Integrated Entry and Exit Data System Task Force established in Section 3 of the Immigration and Naturalization Service Data Management Improvement Act of 2000.
68. See, e.g., Global Implications of U.S. Anti-Terrorism Law, STRATFOR Strategic Forecasting (Oct. 29, 2001) available at http://www.stratfor.com/northamerica/commentary/0110292145.htm ("By making it tougher to launder illicit funds through Western institutions, Washington is attempting to dismantle the financial underpinnings of international terrorism.").
69. Id. (New measures "will also drive those involved in illegal activity deeper underground" and "prompt foreign banks to seek alternatives to U.S. financing").
70. See, e.g., Kim Christensen, Richard Read, Julie Sullivan, & Brent Walth, Unchecked power of the INS shatters American dream, OREGONIAN, Dec. 10, 2000, at A01 (finding disarray and abuses throughout the INS, as well as an agency culture of racism).
71. See Mark Juergensmeyer, Terror in the Mind of God 238-39 (2001) (("Governments that chose [to abandon] their own democratic principles in response to terrorism  have embarked on perilous journeys", discrediting themselves and leading to further terrorism).
72. For example, some commentators have called for elimination of INA § 245(i) adjustments on the grounds that this would enhance anti-terrorism efforts. See, e.g., Steven A. Camarota, Immigration & Terrorism, Testimony Prepared for the Senate Judiciary Committee, Subcommittee on Technology, Terrorism, & Government Information (Oct. 12, 2001) (calling for the elimination of Section 245(i) on the theory that it "compromises homeland security"), available at http://www.cis.org/articles/2001/sactestimony1001.html. Section 245(i) allows certain illegal entrants or immigration violators to adjust their status to that of lawful permanent resident without leaving the United States, provided that they meet all of the requirements for such adjustment, including the requirement that they undergo a criminal background check. None of the September 11 terrorists sought adjustment of status, however, and none of them were eligible for adjustment under Section 245(i), so elimination of this provision would have done nothing to stop the terrorists. Additionally, there is no evidence that interviewing visa applicants overseas gives any better protection against admission of terrorists than interviewing them in the United States.
73. Alfonso Chardy, Application for Pilot Visa Made Suspect's U.S. Entry Legal, INS Says, MIAMI HERALD, Oct. 21, 2001, at 10A.
74. Id. (describing how INS agents questioned Atta extensively at the Miami airport and let him into the country on a visitor's visa, despite Atta's intention to attend pilot training).
75. INS's defense of its behavior in Atta's case is particularly ironic in that INS has in the past expeditiously removed for fraud other aliens who have tried to enter on visitor's visas when they had other visa applications pending. See, e.g., Anthony Lewis, Abroad at Home: It Can Happen Here, N. Y. TIMES, Sept. 8, 1997, at A19 (describing how INS expeditiously removed a Chinese businesswoman for having committed "fraud" when she tried to enter as a business visitor while she had a different visa application pending).
76. See discussion above regarding Mexican serial killer Rafael Resendez-Ramirez, Note 28; see also U.S. Dep't of Justice, Office of the Inspector General, BOMBS IN BROOKLYN: HOW THE TWO ILLEGAL ALIENS ARRESTED FOR PLOTTING TO BOMB THE NEW YORK SUBWAY ENTERED AND REMAINED IN THE UNITED STATES (Mar. 1998), available at http://www.usdoj.gov/oig/brookb/brbrtoc.htm (recounting how Gazi Ibrahim Abu Mezer, a terrorist, got into the US after INS and State Department employees failed to follow up on information that he had repeatedly tried to enter the US illegally, and that he might be a member of Hamas, a Palestinian terrorist group).
77. This trend will likely continue. Congress has exacerbated the trend inadvertently in some recent legislation. For example, new aviation security legislation creating new air marshal positions has caused an exodus from INS of experienced agents, many of whom perceive better job opportunities as air marshals. See Rene Sanchez, Border Patrol Agents Answer Higher Call, WASH. POST, Dec. 2, 2001, at A12.
78. Metro: In Brief, WASH. POST, Apr. 24, 2001, at B1 (quoting INS spokeswoman Karen Kraushaar as stating "Immigration is a mystery and a mastery of obfuscation, and the lawyers who can figure it out are worth their weight in gold").
79. See U. S. General Accounting Office, IMMIGRATION & NATURALIZATION SERVICE: OVERVIEW OF RECURRING MANAGEMENT CHALLENGES, Rep. No. GAO-02-168T (Oct. 17, 2001) (discussing "recurring management challenges" at INS, including "chronic problems" balancing the competing missions of service and enforcement).
80. See Chris Adams, "INS Plans Overhaul to Aid Effectiveness, But Some in Congress Want New Agency," WALL ST. J., Oct. 31, 2001, at A26.
81. The biggest problem with separating functions internally is that the current agency personnel and organizational climate will likely survive in any "reformed" agency. Existing personnel (district directors, for example) are likely to act to preserve their jobs and power bases, thereby simply changing job titles without changing the efficiency or functioning of the agency.
82. In increasing INS's funding, however, Congress must be careful to get accountability from the agency, given its past record of spending money without achieving measurable results.
83. See, e.g., Joe Klein, Department of National Security: Closework, NEW YORKER, Oct. 1, 2001, at 48 (quoting Richard Holbrooke for the proposition that "[f]or years, people have tried to create a single coordinated agency involving Customs, the [INS], the F.B.I., the C.I.A., the F.A.A., the Coast Guard, but it has never happened. Why? Because bureaucracies won't cooperate with each other.")
84. See United States General Accounting Office, INS' SOUTHWEST BORDER STRATEGY: RESOURCE AND IMPACT ISSUES REMAIN AFTER SEVEN YEARS (Aug. 2001).
85. Congress has previously mandated the use of new technology at the borders with poor results. For example, the media have recently reported how INS has been unable to read the new legislatively-mandated computerized Mexican Border Crossing Cards due to a lack of scanning machinery at the border. See, e.g., Lynn Brezosky, Lacking new IDs, Mexicans kept out, CHICAGO TRIBUNE, Oct. 2, 2001, at 17. INS officials have stated that scanning the new cards may in fact create greater backlogs than currently exist under the manual inspection system.