May 23, 2002
"Reform That Leads to Chaos"--An Op-Ed by Prof. Peter Schuck
(This essay originally appeared in the May 23, 2002, edition of the New York Times.)
Reform That Leads to Chaos
By Peter H. Schuck, the Simeon E. Baldwin Professor of Law
With the possible exception of the I.R.S., the Immigration and Naturalization Service is the least popular agency in the federal government. Congress is so fed up with I.N.S. blunders that it is near a bipartisan agreement on a law dividing the immigration service into separate divisions for services and enforcement. The Bush administration, recognizing this political juggernaut, also favors this plan.
But recent disclosures about the response of the F.B.I. and I.N.S. to terrorist threats show the need for more coordination within and among federal agencies, not less. Dividing the I.N.S. into two parts won't solve the agency's problems, and it won't make the immigration system better able to deal with the demands imposed on it by the war on terrorism. Any meaningful reform must begin with a careful reconsideration of the nation's immigration policy.
Reorganization has been proposed by blue-ribbon commissions since at least 1981 on the theory that the same agency that provides visas and other benefits for "good" immigrants should not be responsible for deporting "bad" ones. Although this seems plausible, separation will create new problems and aggravate old ones.
Benefits and sanctions are -- and should be -- closely linked. Many illegal aliens become legal immigrants; last year, for example, the I.N.S. issued more than 200,000 permanent visas -- over 20 percent of the total -- to previously illegal aliens. Moreover, reorganization invariably disrupts even well-run agencies by creating new lines of authority and operating routines. One can only imagine what it will do to the chaotic I.N.S.
The agency has few allies. But dividing its functions will not enhance support for the I.N.S.; the real problem is how it defines and performs its mission. As it is, many immigrants fear the agency's broad detention and deportation powers, while others dismiss it as a paper tiger that actually deports relatively few illegal aliens who make it inside the border. Human-rights groups denounce its frequent mistreatment of aliens. Employers scorn the agency's glacial pace and burdensome paperwork. Congress resents the agency's continued failures, especially after quadrupling its budget in the last decade. Federal judges, barred by a 1996 reform law from reviewing many important I.N.S. decisions, fume that the orders they can issue often have little effect. The current Congressional reform fails to address these issues.
Meanwhile, the failures of immigration policy are only getting worse. There are an estimated eight million to nine million illegal aliens in the United States today, almost twice as many as in 1986, when Congress adopted employer sanctions and a broad amnesty program. Many of these illegal aliens also commit crimes serious enough to warrant deportation, and the I.N.S. is under Congressional pressure to deport them. But in 2001, a record year for deporting criminal aliens, the I.N.S. failed to expel most of those eligible for deportation (even as it unfairly deported some who committed minor legal infractions many years ago). At the same time, the I.N.S. had in custody almost 5,000 unaccompanied minors, whose education and well-being it could not ensure.
Among those immigrants eligible for visas, citizenship or other benefits, a backlog of 4.9 million applications has accumulated. Red tape over visas turns honest workers and employers into lawbreakers and creates huge economic costs. And the relative education and job skills of legal immigrants may be declining, making their success here less likely.
I.N.S. incompetence has wasted large investments in computer technology; the agency cannot track the 700,000 foreign students in the United States, much less nonstudents who overstay their visas. Yet despite administrative failures -- its notice of approval of pilot training for Mohamed Atta, mailed months after Sept. 11, is only the most notorious -- Congress keeps adding to the agency's responsibilities in antiterrorism and other areas.
Instead of simply reorganizing the bureaucracy, Congress needs to consider more imaginative -- and less extreme -- remedies for these chronic problems. It could amend the 1996 law to restore the possibility of humanitarian waivers from deportation for aliens with close family ties to citizens. The I.N.S. could use community supervision to reduce unnecessary detentions. The employer sanctions law could be strengthened with stiffer penalties and private enforcement. More secure identity documents, sensitive to privacy concerns, could be developed. A point system like those used in Canada and Australia, which admit immigrants based on their skills, language ability, experience and family ties, could yield more productive and easily assimilated immigrants.
Reorganizing the I.N.S. before rethinking immigration policy in light of past failures and new challenges will not produce a more efficient or effective agency. Instead, it will deflect public attention from the difficult political choices that Congress must make but would rather avoid. Could it be that distraction is the whole point of this exercise?
Peter H. Schuck is a professor at Yale Law School and author of the forthcoming Diversity in America: Keeping Government at a Safe Distance.