Lev Kobrin
07-01-2004, 09:56 AM
MONTHLY NEWS
Votes on Proposed Amendments to DHS Appropriations Bill End in Victory
Immigration advocates scored victories on two recent votes on proposed amendments to the FY
2005 Department of Homeland Security (DHS) appropriations bill (H.R. 4567). The first vote
concerned the proposed contracting out of the Immigration Information Officer (IIO) position and
the second dealt with the proposed withholding of homeland security funding from communities
that prohibit or restrict the sharing of an individual’s citizenship or immigration status with the
Bureau of Immigration and Customs Enforcement.
The House, on June 18, approved by a vote of 242-163 an amendment offered by Representative
Lucille Roybal-Allard (D-CA) that would prevent the ill-conceived contracting out of positions
that are inherently governmental at the DHS’s Bureau of Citizenship and Immigration Services
(USCIS). Specifically, the amendment would prohibit the use of appropriated funds to process or
approve a competitive sourcing action under OMB Circular A-76 for a function provided as of
January 1, 2004 by employees who are IIOs, Contact Representatives, or Investigative Assistants.
Contracting out these functions will not fix the problem-laden immigration benefits system.
AILA strongly supported this amendment for the following reasons:
1) These functions are inherently governmental: The workload of IIOs, Contact Representatives,
and Investigative Assistants is inherently governmental and therefore must be performed by
federal employees.
2) Immigration law is very complicated and inadequate knowledge can lead to dire consequences:
Contractors do not have the requisite knowledge and training. Such knowledge cannot be taught
through lists and scripts, and the consequences can be severe if inaccurate or incomplete
information is given.
3) Past experiences with contracting out have been problematic: Contracting out the 1-800
number system has resulted in problems ranging from the frustrating to the truly damaging.
4) Contracting out these functions raises security concerns: Immigration officers review
applications, conduct criminal background checks, and search for fraud. These positions must be
filled by federal employees who are clearly accountable to the agency within which they work.
5) Contracting out will damage backlog reduction efforts: In many immigration offices, IIOs also
perform basic adjudications functions, freeing adjudicators to handle more complex cases.
Contractors cannot perform adjudications. Thus, this important supplement to the adjudications
workforce would be lost, further hampering backlog reduction efforts.
6) Contracting out has led neither to efficiencies nor to cost savings: In fact, past and current
contracting out has led to increases in inefficiencies and increased costs. Service Centers have
had to allocate personnel to deal with contractors’ errors and, in many instances, redo their work,
and supervisors often have had to spend more time monitoring contracted employees,
“shadowing” them to ensure they do not make errors.
For more on this topic, click on the following link to view AILA’s sign-on letter of September 4,
2003, urging the USCIS not to contract out the Immigration Information Officer function:
http://www.aila.org/contentViewer.aspx?bc=9,594,623,3628&st=03090540
In another significant victory, House members defeated by a 259-148 vote an amendment
proposed by restrictionist Representative Tom Tancredo (R-CO) that sought to prohibit the use of
funds to provide assistance to any state or local government entity or official that prohibits or
restricts the sharing of an individual’s citizenship or immigration status with the Bureau of
Immigration and Customs Enforcement. This amendment essentially mirrored the CLEAR Act
(H.R. 2671) and its Senate counterpart (S. 1906) by compelling state and local police officers to
become de facto federal immigration agents.
State and local police have worked hard to gain the trust of immigrant residents and convince
them that it is safe to contact local law enforcement. By effectively turning all police into
immigration agents, the Tancredo amendment would have discouraged immigrants from coming
forward to report crimes and suspicious activity, making our streets less safe as a result. The
amendment also would have improperly shifted the burden of federal immigration law
enforcement onto local police. In these times of scarce local resources, this dramatic
restructuring of enforcement responsibilities makes no sense from a financial or public safety
perspective. For these reasons, state and local police departments nationwide strongly opposed,
and advocated against, a similar Justice Department policy last year. Local law enforcement
agencies are in the best position to evaluate and prioritize how they allocate resources, and have
publicly stated that this ill-conceived proposal would prevent them from doing their duty.
Unable to concede the sound defeat of his proposal, however, Representative Tancredo, in a June
22 speech on the House floor, vowed to offer a similar amendment “in a short time on the
Commerce, Justice, and State bill,” and to continue to offer such an amendment “as long as I am
able to, as long as I am a Member of the House and until it passes.” (150 Cong. Rec. H4752-53
(daily ed. June 22, 2004)).
The House ultimately passed H.R. 4567 by a vote of 400-5 and sent the bill to the Senate for
further consideration.
The Civil Liberties Restoration Act of 2004 Introduced in House and Senate
Legislation introduced on June 8 would address policies implemented since September 11 that
have debased our country’s fundamental commitment to individual liberties and due process.
These policies, including detentions for months without charges, secret hearings, and ethnic
profiling, signal a sea change in our government’s policies and attitudes towards immigrants.
With the introduction of the Civil Liberties Restoration Act of 2004 (CLRA) (S. 2528/H.R.
4591), Senators Kennedy (D-MA), Leahy (D-VT), Durbin (D-IL), Feingold (D-WI), and Corzine
(D-NJ) and Representatives Berman (D-CA) and Delahunt (D-MA) take a giant step towards
redressing these abuses and reining in executive branch overreaching.
The Civil Liberties Restoration Act would roll back, in a targeted and responsible manner, the
excesses of the government’s response to the threat of terrorism. The bill includes the following
provisions that seek to ensure that immigrants are treated with the fairness and respect that our
Constitution requires:
• End Secret Hearings. The CLRA would end the government’s ability to issue a blanket
order closing all deportation hearings to the public and to family members of detainees, while
permitting the closure of hearings or a portion of hearings on a case-by-case basis to preserve
the confidentiality of asylum applications or when national security interests so require.
• Ensure Due Process for Detained Individuals. The CLRA would provide minimum due
process safeguards to individuals who are jailed on suspicion of immigration violations by
giving them timely notice of the charges against them and assure that immigration authorities
and judges make fair, individualized bond determinations.
• Establish Independent Immigration Court. The CLRA would establish an independent
immigration court within the Department of Justice and promote fair hearings by a
competent, independent and impartial tribunal.
• End Special Registration. The CLRA would terminate the troubled National Security Entry-
Exit Registration System while encouraging fairness and a concentrated focus on those who
pose a threat to the national security or safety of Americans.
• Make Penalties Commensurate with Violations. The CLRA would assign reasonable
penalties, commensurate with the technical nature of the violations, for noncitizens’ failure to
register or provide timely notification of address changes.
• Require Accurate Criminal Databases. The CLRA would facilitate better law enforcement
practices by requiring that the National Crime Information Center database relied upon daily
by state and local law enforcement comply with minimum accuracy requirements.
• Ensure Access to Evidence. The CLRA would ensure that people who are charged with a
crime based upon national security surveillance under the Patriot Act would see the evidence
against them in the same manner as people charged with a crime based upon other kinds of
classified information.
• Mandate Reports on Data-Mining. The CLRA would require the government to submit a
public report to Congress on data-mining activities in order to protect the privacy and due
process rights of individuals and to ensure accurate information is collected and used.
• Limit Secret Seizures of Records. The House version of the CLRA would amend the USA
PATRIOT Act to limit the secret seizure of private databases and individual records to cases
where the government has shown there is a reasonable connection to a suspected terrorist or
terrorist group.
We are a nation of immigrants with a long tradition of welcoming newcomers. Government
policies that unfairly and inappropriately confuse immigration with terrorism do not make us
safer—they tarnish our heritage, and damage our standing abroad. Security experts, government
auditors and community leaders have concluded that many of the government’s policies actually
undermine our security, while eroding fundamental civil liberties. Measures that make people
suspect because of their ethnicity or religion, rather than suspicious activity, alienate immigrant
communities, divert valuable resources from finding real terrorists, and ignore this nation’s
commitment to freedom from heavy-handed government tactics. In fact, the Department of
Justice’s (DOJ) own Inspector General issued a scathing report, identifying “significant
problems” and questions of “legality” related to the detention policies the Justice Department
implemented during post-9/11 investigations. Many immigrants detained in the post-9/11 sweep
were denied access to attorneys and family members, and were held for months without being
charged. And, in a number of cases, government guards physically and mentally abused them.
Newly Introduced Bill Would Provide for Overseas Screening of VWP Travelers
Representative Jim Turner (D-TX), Ranking Member of the Select Committee on Homeland
Security, on June 14, introduced the Safe, Efficient, Coordinated, Unified, Revitalized, Enhanced
(SECURE) Visa Waiver Act (H.R. 4550). This bill would require DHS to ensure that foreign
nationals traveling to the U.S. pursuant to the Visa Waiver Program (VWP) are eligible for
admission and are checked against terrorist watch lists and security databases prior to their
departure to the U.S. (The VWP waives the visa requirement for nationals from 27 countries who
visit the U.S. for business or pleasure. In Fiscal Year 2003, roughly 18 million travelers entered
the U.S. pursuant to this program. Currently these VWP participants are not subject to security
checks until after they arrive at U.S. ports of entry.)
The SECURE Visa Waiver Act also would extend the October 2004 biometric passport deadline
by one year and allow for additional extensions of up to one year for countries completing their
biometric passport program. This biometric passport requirement, as set forth in the Enhanced
Border Security and Visa Entry Reform Act of 2002 (Pub. L. No. 107-173), requires VWP
participants to present machine-readable, tamper-resistant passports that incorporate biometric
and document authentication identifiers if the passport is issued after October 26, 2004. If an
individual from a VWP-eligible country obtains his or her passport after this date and it does not
contain the above-described safeguards, the individual will be unable to participate in the VWP
and will instead need to obtain a visa from the U.S. consulate before attempting entry to the U.S.
Estimates from the State Department indicate that a failure to extend the statutory deadline could
result in a 70 percent increase in the U.S. consulates’ nonimmigrant visa workload.
The SECURE Visa Waiver Act offers a good first step towards enhancing our security by
“pushing out” our nation’s borders. AILA long has advocated that DHS implement pre-screening
activities to increase our security and facilitate the entry of low-risk travelers. Clearing travelers
before their voyage to the United States should give inspectors more time to scrutinize each
applicant for entry, reduce delays at the border, and provide international travelers with a sense of
certainty that they will be admitted into the U.S.
In conjunction with the program proposed in the SECURE Visa Waiver Act, AILA also supports
efforts to increase the interoperability of the DHS database systems and other agencies’ database
systems to give inspectors a more thorough review of each applicant requesting entry into the
U.S. A complete and accurate database system would also include a mechanism for correcting
database errors, which is currently extremely difficult to achieve. Having incorrect information
only serves to hinder the inspections process, discredit the reliability of the security checks, and
affect detrimentally legitimate travelers’ ability to enter the United States.
House Passes Bill to Extend Biometrics Deadline
The House on June 14 approved legislation that would amend § 303 of the Enhanced Border
Security and Visa Entry Reform Act of 2002 (Pub. L. No. 107-173) to extend for another year the
deadline for: (1) installing at all U.S. ports of entry equipment and software capable of processing
machine-readable, tamper-resistant entry and exit documents and passports that contain biometric
identifiers; (2) Visa Waiver Program (VWP) countries to certify that they are issuing machinereadable,
tamper-resistant passports that contain biometric and document authentication
identifiers comporting with specified standards; and (3) VWP participants who are issued
passports on or after the new deadline to present passports that comply with such requirements.
The new deadline would be October 26, 2005.
House lawmakers approved the bill (H.R. 4417) under suspension of the rules. The legislation
now moves to the Senate for further consideration.
House Immigration Subcommittee Holds Hearings on USCIS Backlogs
The House Judiciary Committee’s Subcommittee on Immigration, Border Security and Claims
recently held two hearings that focused on the backlogs that have plagued the Bureau of
Citizenship and Immigration Services (USCIS) and the Administration’s plans to reduce them.
USCIS Director Eduardo Aguirre testified at the first hearing on June 17. His testimony focused
on the Administration’s goal of “eliminat[ing] the backlog and ensur[ing] a six-month or less
processing time by the end of 2006.” Mr. Aguirre testified that the backlog elimination plan has
three basic elements: “(1) Achieve a high-level of performance by establishing clear, concrete
milestones and actively monitoring progress towards these milestones; (2) transform business
practices by implementing significant information technology improvements and identifying
processing improvements to transform the current way of doing business; and (3) ensure integrity
by instituting comprehensive quality assurance measures.” This latest backlog reduction plan,
while much welcomed, must contend with a history of failed plans to reduce the backlog.
Mr. Aguirre also pointed to the progress the agency has made in the 15 months since USCIS was
created. He listed the “on-line filings for eight application forms, representing over 50% of the
total volume of benefit applications annually,” and the creation of the Infopass, the web-based
information appointment system, to name a few accomplishments. Although questioned about
the relatively small budget earmarked for backlog reduction, in stark contrast to that for
immigration enforcement, Mr. Aguirre repeatedly denied the need for additional funds to
accomplish backlog reduction goals.
The second hearing, entitled “Families and Business in Limbo: the Detrimental Impact of the
Immigration Backlog,” was held on June 23. Testifying at the hearing were: Department of
Homeland Security (DHS) Ombudsman Prakash Khatri; AILA President Paul Zulkie; and
Elizabeth Stern, Managing Partner at the law firm of Shaw Pittman.
Testimony of AILA’s President: AILA President Paul Zulkie focused his testimony on the impact
on individuals and businesses of the USCIS backlogs and on initiatives that would reduce the
backlog. He cited two examples, from the many possible, that highlight the tragic dimensions of
the backlog:
The first example concerned a Rwandan woman who witnessed the torture and killing of her
parents and siblings and had to wait seven years to be scheduled for an asylum interview. She
suffers from post-traumatic stress disorder, and lives in constant fear of being sent back to
Rwanda. She had been brought here from a refugee camp by a trafficker who attempted to
enslave her into prostitution. But because she never received an interview and has been uncertain
of her future here, she never went to the police with information about this sex trafficker. The
evidence is now lost, and this perpetrator is still at large.
In the second example, one of the top 10 U.S. medical centers had to lay off one of its best
surgeons because the USCIS was taking five months to renew his work authorization card, even
though USCIS’s own regulations require that these cards be processed within 90 days. The
hospital, the surgeon and his patients all suffered from his forced unavailability.
Mr. Zulkie emphasized that the backlogs “not only harm the people directly caught in their web,
they undermine public trust in the immigration system,” and differentiated the “primary” backlog
from the “secondary” backlog, in contrast to the definition of the backlog provided by Director
Aguirre, one that is based on cycle times. The primary backlog is the time that the case spends on
the shelf with no review by an adjudicator. The secondary backlog, or “hidden” backlog, so
named because the agency does not take account of it, occurs due to security checks, when an
adjudicator requests additional evidence, or when a case is shifted to the Administrative Appeals
Office (AAO) for review. Individuals stuck in the backlog are victims of both.
Mr. Zulkie applauded the USCIS for taking some steps in the right direction, including: issuing
instructions about not needing to readjudicate established facts; storing biometrics on file;
creating Infopass, the on-line appointment system that has been implemented in three of USCIS’
busiest districts; allowing applicants to check the status of their cases on line; the soon to be
issued regulation that will allow the agency to issue work authorization cards for validity periods
that are more in line with the actual time needed; and initiating pilot programs, in conjunction
with the Ombudsman, that could elicit information about processes that could help backlogs from
developing in the future.
Mr. Zulkie also pointed to some steps that USCIS has taken in the wrong direction that have not
helped or will hurt backlog reduction efforts. These include: electronic filing which has shown
negligible impact on the backlog; the 1-800 number system, the contracted out customer service
system through which the public has been given misguided and sometimes harmful advice; a
recent guidance to the field that encourages denial of cases that formerly would have merited
requests for additional information; and the proposed contracting out of the Immigration
Information Officer function.
To address the backlogs, AILA proposes: providing adjudicators with adequate guidance and
training; integrating into backlog reduction efforts the secondary backlogs noted above;
improving coordination between USCIS and its sister bureaus, Immigration and Customs
Enforcement (ICE) and Customs and Border Protection (CBP); and, importantly, adequately
funding the agency through direct Congressional appropriations to supplement the user fees. The
“800-pound gorilla sitting in the hearing room,” according to Mr. Zulkie, is the need for resources
above and beyond the user fees.
Ombudsman Presents Annual Report: During his testimony, Mr. Khatri detailed the mission of
the office of the Ombudsman: assist individuals and employers in resolving problems with the
USCIS; identify areas where individuals and employers are having problems with USCIS, with an
eye toward developing systemic changes that will benefit citizens and immigrants; and propose
changes in the administrative practices of USCIS to avoid and mitigate problems. Mr. Khatri also
outlined his views of the most pervasive and significant issues identified to date: prolonged
processing times; limited availability of case status information to applicants and beneficiaries;
immigration benefit fraud which contributes to processing delays; insufficient standardization in
processing among the different USCIS district offices and regional service centers; and
inadequate technology and facilities. In response to recommendations from Mr. Khatri’s office,
USCIS has developed and implemented four pilot programs. One of these programs is being
tested in Dallas and is meant to transform the current process of adjudicating applications for
“green cards.”
Testimony of Elizabeth Stern: Ms. Stern focused her testimony on the negative impacts of delays
in the processing of immigration benefits, especially the negative impacts on commercial
operations, the imposition of undue costs on companies, and the compromise of our nation’s
ability to attract top tier international talent. She noted that a recent study by eight business
associations indicated that visa delays alone are responsible for about $31 million in lost dollars
to U.S. business. She also opined that backlog reduction could be achieved by: adopting a
commercial management approach and developing clear legal standards and policies, along with
clear lines of communication created within the agency; training USCIS personnel on the key
categories of immigration benefits; streamlining the system for efficient application processing;
implementing quality control initiatives; and undertaking an analysis of the ability of current
resources to match demands.
Senators Introduce Homeland Security Civil Rights and Civil Liberties Protection Act
Senators Ron Wyden (D-OR) and Susan Collins (R-ME), on June 17, introduced the Homeland
Security Civil Rights and Civil Liberties Protection Act of 2004 (S. 2536). This bipartisan bill
seeks to ensure that the Department of Homeland Security (DHS) Officer for Civil Rights and
Civil Liberties and the DHS Inspector General (IG) have a clear statutory mandate and the
necessary authority to effectively protect civil rights and liberties. Among other provisions, the
bill guarantees that the Officer for Civil Rights and Civil Liberties and the Privacy Officer will
continue to figure prominently in the agency’s hierarchy by specifying that they shall report
directly to the Secretary. Furthermore, the bill instructs the DHS IG to designate a senior official
within the IG’s office to focus on civil rights and civil liberties matters with authority to initiate
investigations of alleged abuses of civil rights and liberties by employees or officials of the DHS
and employees or officials of independent contractors or grantees of the DHS. Somewhat
symbolically, the bill also amends the DHS’s statutory mission statement to emphasize the
agency’s role in protecting civil rights and liberties.
ICE Pilot Project Provides Alternatives to Detention
U.S. Immigration and Customs Enforcement (ICE) unveiled a new pilot program on June 21 that
would provide alternatives to detention while seeking to minimize in absentia rates and maximize
removal rates. The Intensive Supervision Appearance Program (ISAP) will debut in eight cities:
Baltimore, Philadelphia, Miami, St. Paul, Denver, Kansas City, San Francisco, and Portland
(Oregon). ISAP will include the use of tools such as curfews, electronic monitoring devices,
telephonic reporting, home visits, work visits, etc. To participate in the program individuals must
not be subject to mandatory detention, must maintain a local address within the jurisdiction of the
ISAP field office, and must not be a violent offender or threat to public safety. In addition,
prospective participants must volunteer for the program. The pilot project will be managed by
ICE’s Detention and Removal Operations office in partnership with contractor Behavioral
Interventions, Inc.
AILA commends the agency for seeking less restrictive alternatives to detention for noncitizens
who are in removal proceedings, but is concerned about several issues related to implementation
of this fledgling program, including: whether the program eventually will apply to individuals
who would not otherwise have been detained; the contracting company’s lack of experience in
non-criminal alternative detention programs; the absence of training requirements for the
contracting entities’ employees (e.g. sensitivity training regarding interaction with torture
survivors); and the lack of employment authorization for individuals released under the program
(unless otherwise employment authorized).
Votes on Proposed Amendments to DHS Appropriations Bill End in Victory
Immigration advocates scored victories on two recent votes on proposed amendments to the FY
2005 Department of Homeland Security (DHS) appropriations bill (H.R. 4567). The first vote
concerned the proposed contracting out of the Immigration Information Officer (IIO) position and
the second dealt with the proposed withholding of homeland security funding from communities
that prohibit or restrict the sharing of an individual’s citizenship or immigration status with the
Bureau of Immigration and Customs Enforcement.
The House, on June 18, approved by a vote of 242-163 an amendment offered by Representative
Lucille Roybal-Allard (D-CA) that would prevent the ill-conceived contracting out of positions
that are inherently governmental at the DHS’s Bureau of Citizenship and Immigration Services
(USCIS). Specifically, the amendment would prohibit the use of appropriated funds to process or
approve a competitive sourcing action under OMB Circular A-76 for a function provided as of
January 1, 2004 by employees who are IIOs, Contact Representatives, or Investigative Assistants.
Contracting out these functions will not fix the problem-laden immigration benefits system.
AILA strongly supported this amendment for the following reasons:
1) These functions are inherently governmental: The workload of IIOs, Contact Representatives,
and Investigative Assistants is inherently governmental and therefore must be performed by
federal employees.
2) Immigration law is very complicated and inadequate knowledge can lead to dire consequences:
Contractors do not have the requisite knowledge and training. Such knowledge cannot be taught
through lists and scripts, and the consequences can be severe if inaccurate or incomplete
information is given.
3) Past experiences with contracting out have been problematic: Contracting out the 1-800
number system has resulted in problems ranging from the frustrating to the truly damaging.
4) Contracting out these functions raises security concerns: Immigration officers review
applications, conduct criminal background checks, and search for fraud. These positions must be
filled by federal employees who are clearly accountable to the agency within which they work.
5) Contracting out will damage backlog reduction efforts: In many immigration offices, IIOs also
perform basic adjudications functions, freeing adjudicators to handle more complex cases.
Contractors cannot perform adjudications. Thus, this important supplement to the adjudications
workforce would be lost, further hampering backlog reduction efforts.
6) Contracting out has led neither to efficiencies nor to cost savings: In fact, past and current
contracting out has led to increases in inefficiencies and increased costs. Service Centers have
had to allocate personnel to deal with contractors’ errors and, in many instances, redo their work,
and supervisors often have had to spend more time monitoring contracted employees,
“shadowing” them to ensure they do not make errors.
For more on this topic, click on the following link to view AILA’s sign-on letter of September 4,
2003, urging the USCIS not to contract out the Immigration Information Officer function:
http://www.aila.org/contentViewer.aspx?bc=9,594,623,3628&st=03090540
In another significant victory, House members defeated by a 259-148 vote an amendment
proposed by restrictionist Representative Tom Tancredo (R-CO) that sought to prohibit the use of
funds to provide assistance to any state or local government entity or official that prohibits or
restricts the sharing of an individual’s citizenship or immigration status with the Bureau of
Immigration and Customs Enforcement. This amendment essentially mirrored the CLEAR Act
(H.R. 2671) and its Senate counterpart (S. 1906) by compelling state and local police officers to
become de facto federal immigration agents.
State and local police have worked hard to gain the trust of immigrant residents and convince
them that it is safe to contact local law enforcement. By effectively turning all police into
immigration agents, the Tancredo amendment would have discouraged immigrants from coming
forward to report crimes and suspicious activity, making our streets less safe as a result. The
amendment also would have improperly shifted the burden of federal immigration law
enforcement onto local police. In these times of scarce local resources, this dramatic
restructuring of enforcement responsibilities makes no sense from a financial or public safety
perspective. For these reasons, state and local police departments nationwide strongly opposed,
and advocated against, a similar Justice Department policy last year. Local law enforcement
agencies are in the best position to evaluate and prioritize how they allocate resources, and have
publicly stated that this ill-conceived proposal would prevent them from doing their duty.
Unable to concede the sound defeat of his proposal, however, Representative Tancredo, in a June
22 speech on the House floor, vowed to offer a similar amendment “in a short time on the
Commerce, Justice, and State bill,” and to continue to offer such an amendment “as long as I am
able to, as long as I am a Member of the House and until it passes.” (150 Cong. Rec. H4752-53
(daily ed. June 22, 2004)).
The House ultimately passed H.R. 4567 by a vote of 400-5 and sent the bill to the Senate for
further consideration.
The Civil Liberties Restoration Act of 2004 Introduced in House and Senate
Legislation introduced on June 8 would address policies implemented since September 11 that
have debased our country’s fundamental commitment to individual liberties and due process.
These policies, including detentions for months without charges, secret hearings, and ethnic
profiling, signal a sea change in our government’s policies and attitudes towards immigrants.
With the introduction of the Civil Liberties Restoration Act of 2004 (CLRA) (S. 2528/H.R.
4591), Senators Kennedy (D-MA), Leahy (D-VT), Durbin (D-IL), Feingold (D-WI), and Corzine
(D-NJ) and Representatives Berman (D-CA) and Delahunt (D-MA) take a giant step towards
redressing these abuses and reining in executive branch overreaching.
The Civil Liberties Restoration Act would roll back, in a targeted and responsible manner, the
excesses of the government’s response to the threat of terrorism. The bill includes the following
provisions that seek to ensure that immigrants are treated with the fairness and respect that our
Constitution requires:
• End Secret Hearings. The CLRA would end the government’s ability to issue a blanket
order closing all deportation hearings to the public and to family members of detainees, while
permitting the closure of hearings or a portion of hearings on a case-by-case basis to preserve
the confidentiality of asylum applications or when national security interests so require.
• Ensure Due Process for Detained Individuals. The CLRA would provide minimum due
process safeguards to individuals who are jailed on suspicion of immigration violations by
giving them timely notice of the charges against them and assure that immigration authorities
and judges make fair, individualized bond determinations.
• Establish Independent Immigration Court. The CLRA would establish an independent
immigration court within the Department of Justice and promote fair hearings by a
competent, independent and impartial tribunal.
• End Special Registration. The CLRA would terminate the troubled National Security Entry-
Exit Registration System while encouraging fairness and a concentrated focus on those who
pose a threat to the national security or safety of Americans.
• Make Penalties Commensurate with Violations. The CLRA would assign reasonable
penalties, commensurate with the technical nature of the violations, for noncitizens’ failure to
register or provide timely notification of address changes.
• Require Accurate Criminal Databases. The CLRA would facilitate better law enforcement
practices by requiring that the National Crime Information Center database relied upon daily
by state and local law enforcement comply with minimum accuracy requirements.
• Ensure Access to Evidence. The CLRA would ensure that people who are charged with a
crime based upon national security surveillance under the Patriot Act would see the evidence
against them in the same manner as people charged with a crime based upon other kinds of
classified information.
• Mandate Reports on Data-Mining. The CLRA would require the government to submit a
public report to Congress on data-mining activities in order to protect the privacy and due
process rights of individuals and to ensure accurate information is collected and used.
• Limit Secret Seizures of Records. The House version of the CLRA would amend the USA
PATRIOT Act to limit the secret seizure of private databases and individual records to cases
where the government has shown there is a reasonable connection to a suspected terrorist or
terrorist group.
We are a nation of immigrants with a long tradition of welcoming newcomers. Government
policies that unfairly and inappropriately confuse immigration with terrorism do not make us
safer—they tarnish our heritage, and damage our standing abroad. Security experts, government
auditors and community leaders have concluded that many of the government’s policies actually
undermine our security, while eroding fundamental civil liberties. Measures that make people
suspect because of their ethnicity or religion, rather than suspicious activity, alienate immigrant
communities, divert valuable resources from finding real terrorists, and ignore this nation’s
commitment to freedom from heavy-handed government tactics. In fact, the Department of
Justice’s (DOJ) own Inspector General issued a scathing report, identifying “significant
problems” and questions of “legality” related to the detention policies the Justice Department
implemented during post-9/11 investigations. Many immigrants detained in the post-9/11 sweep
were denied access to attorneys and family members, and were held for months without being
charged. And, in a number of cases, government guards physically and mentally abused them.
Newly Introduced Bill Would Provide for Overseas Screening of VWP Travelers
Representative Jim Turner (D-TX), Ranking Member of the Select Committee on Homeland
Security, on June 14, introduced the Safe, Efficient, Coordinated, Unified, Revitalized, Enhanced
(SECURE) Visa Waiver Act (H.R. 4550). This bill would require DHS to ensure that foreign
nationals traveling to the U.S. pursuant to the Visa Waiver Program (VWP) are eligible for
admission and are checked against terrorist watch lists and security databases prior to their
departure to the U.S. (The VWP waives the visa requirement for nationals from 27 countries who
visit the U.S. for business or pleasure. In Fiscal Year 2003, roughly 18 million travelers entered
the U.S. pursuant to this program. Currently these VWP participants are not subject to security
checks until after they arrive at U.S. ports of entry.)
The SECURE Visa Waiver Act also would extend the October 2004 biometric passport deadline
by one year and allow for additional extensions of up to one year for countries completing their
biometric passport program. This biometric passport requirement, as set forth in the Enhanced
Border Security and Visa Entry Reform Act of 2002 (Pub. L. No. 107-173), requires VWP
participants to present machine-readable, tamper-resistant passports that incorporate biometric
and document authentication identifiers if the passport is issued after October 26, 2004. If an
individual from a VWP-eligible country obtains his or her passport after this date and it does not
contain the above-described safeguards, the individual will be unable to participate in the VWP
and will instead need to obtain a visa from the U.S. consulate before attempting entry to the U.S.
Estimates from the State Department indicate that a failure to extend the statutory deadline could
result in a 70 percent increase in the U.S. consulates’ nonimmigrant visa workload.
The SECURE Visa Waiver Act offers a good first step towards enhancing our security by
“pushing out” our nation’s borders. AILA long has advocated that DHS implement pre-screening
activities to increase our security and facilitate the entry of low-risk travelers. Clearing travelers
before their voyage to the United States should give inspectors more time to scrutinize each
applicant for entry, reduce delays at the border, and provide international travelers with a sense of
certainty that they will be admitted into the U.S.
In conjunction with the program proposed in the SECURE Visa Waiver Act, AILA also supports
efforts to increase the interoperability of the DHS database systems and other agencies’ database
systems to give inspectors a more thorough review of each applicant requesting entry into the
U.S. A complete and accurate database system would also include a mechanism for correcting
database errors, which is currently extremely difficult to achieve. Having incorrect information
only serves to hinder the inspections process, discredit the reliability of the security checks, and
affect detrimentally legitimate travelers’ ability to enter the United States.
House Passes Bill to Extend Biometrics Deadline
The House on June 14 approved legislation that would amend § 303 of the Enhanced Border
Security and Visa Entry Reform Act of 2002 (Pub. L. No. 107-173) to extend for another year the
deadline for: (1) installing at all U.S. ports of entry equipment and software capable of processing
machine-readable, tamper-resistant entry and exit documents and passports that contain biometric
identifiers; (2) Visa Waiver Program (VWP) countries to certify that they are issuing machinereadable,
tamper-resistant passports that contain biometric and document authentication
identifiers comporting with specified standards; and (3) VWP participants who are issued
passports on or after the new deadline to present passports that comply with such requirements.
The new deadline would be October 26, 2005.
House lawmakers approved the bill (H.R. 4417) under suspension of the rules. The legislation
now moves to the Senate for further consideration.
House Immigration Subcommittee Holds Hearings on USCIS Backlogs
The House Judiciary Committee’s Subcommittee on Immigration, Border Security and Claims
recently held two hearings that focused on the backlogs that have plagued the Bureau of
Citizenship and Immigration Services (USCIS) and the Administration’s plans to reduce them.
USCIS Director Eduardo Aguirre testified at the first hearing on June 17. His testimony focused
on the Administration’s goal of “eliminat[ing] the backlog and ensur[ing] a six-month or less
processing time by the end of 2006.” Mr. Aguirre testified that the backlog elimination plan has
three basic elements: “(1) Achieve a high-level of performance by establishing clear, concrete
milestones and actively monitoring progress towards these milestones; (2) transform business
practices by implementing significant information technology improvements and identifying
processing improvements to transform the current way of doing business; and (3) ensure integrity
by instituting comprehensive quality assurance measures.” This latest backlog reduction plan,
while much welcomed, must contend with a history of failed plans to reduce the backlog.
Mr. Aguirre also pointed to the progress the agency has made in the 15 months since USCIS was
created. He listed the “on-line filings for eight application forms, representing over 50% of the
total volume of benefit applications annually,” and the creation of the Infopass, the web-based
information appointment system, to name a few accomplishments. Although questioned about
the relatively small budget earmarked for backlog reduction, in stark contrast to that for
immigration enforcement, Mr. Aguirre repeatedly denied the need for additional funds to
accomplish backlog reduction goals.
The second hearing, entitled “Families and Business in Limbo: the Detrimental Impact of the
Immigration Backlog,” was held on June 23. Testifying at the hearing were: Department of
Homeland Security (DHS) Ombudsman Prakash Khatri; AILA President Paul Zulkie; and
Elizabeth Stern, Managing Partner at the law firm of Shaw Pittman.
Testimony of AILA’s President: AILA President Paul Zulkie focused his testimony on the impact
on individuals and businesses of the USCIS backlogs and on initiatives that would reduce the
backlog. He cited two examples, from the many possible, that highlight the tragic dimensions of
the backlog:
The first example concerned a Rwandan woman who witnessed the torture and killing of her
parents and siblings and had to wait seven years to be scheduled for an asylum interview. She
suffers from post-traumatic stress disorder, and lives in constant fear of being sent back to
Rwanda. She had been brought here from a refugee camp by a trafficker who attempted to
enslave her into prostitution. But because she never received an interview and has been uncertain
of her future here, she never went to the police with information about this sex trafficker. The
evidence is now lost, and this perpetrator is still at large.
In the second example, one of the top 10 U.S. medical centers had to lay off one of its best
surgeons because the USCIS was taking five months to renew his work authorization card, even
though USCIS’s own regulations require that these cards be processed within 90 days. The
hospital, the surgeon and his patients all suffered from his forced unavailability.
Mr. Zulkie emphasized that the backlogs “not only harm the people directly caught in their web,
they undermine public trust in the immigration system,” and differentiated the “primary” backlog
from the “secondary” backlog, in contrast to the definition of the backlog provided by Director
Aguirre, one that is based on cycle times. The primary backlog is the time that the case spends on
the shelf with no review by an adjudicator. The secondary backlog, or “hidden” backlog, so
named because the agency does not take account of it, occurs due to security checks, when an
adjudicator requests additional evidence, or when a case is shifted to the Administrative Appeals
Office (AAO) for review. Individuals stuck in the backlog are victims of both.
Mr. Zulkie applauded the USCIS for taking some steps in the right direction, including: issuing
instructions about not needing to readjudicate established facts; storing biometrics on file;
creating Infopass, the on-line appointment system that has been implemented in three of USCIS’
busiest districts; allowing applicants to check the status of their cases on line; the soon to be
issued regulation that will allow the agency to issue work authorization cards for validity periods
that are more in line with the actual time needed; and initiating pilot programs, in conjunction
with the Ombudsman, that could elicit information about processes that could help backlogs from
developing in the future.
Mr. Zulkie also pointed to some steps that USCIS has taken in the wrong direction that have not
helped or will hurt backlog reduction efforts. These include: electronic filing which has shown
negligible impact on the backlog; the 1-800 number system, the contracted out customer service
system through which the public has been given misguided and sometimes harmful advice; a
recent guidance to the field that encourages denial of cases that formerly would have merited
requests for additional information; and the proposed contracting out of the Immigration
Information Officer function.
To address the backlogs, AILA proposes: providing adjudicators with adequate guidance and
training; integrating into backlog reduction efforts the secondary backlogs noted above;
improving coordination between USCIS and its sister bureaus, Immigration and Customs
Enforcement (ICE) and Customs and Border Protection (CBP); and, importantly, adequately
funding the agency through direct Congressional appropriations to supplement the user fees. The
“800-pound gorilla sitting in the hearing room,” according to Mr. Zulkie, is the need for resources
above and beyond the user fees.
Ombudsman Presents Annual Report: During his testimony, Mr. Khatri detailed the mission of
the office of the Ombudsman: assist individuals and employers in resolving problems with the
USCIS; identify areas where individuals and employers are having problems with USCIS, with an
eye toward developing systemic changes that will benefit citizens and immigrants; and propose
changes in the administrative practices of USCIS to avoid and mitigate problems. Mr. Khatri also
outlined his views of the most pervasive and significant issues identified to date: prolonged
processing times; limited availability of case status information to applicants and beneficiaries;
immigration benefit fraud which contributes to processing delays; insufficient standardization in
processing among the different USCIS district offices and regional service centers; and
inadequate technology and facilities. In response to recommendations from Mr. Khatri’s office,
USCIS has developed and implemented four pilot programs. One of these programs is being
tested in Dallas and is meant to transform the current process of adjudicating applications for
“green cards.”
Testimony of Elizabeth Stern: Ms. Stern focused her testimony on the negative impacts of delays
in the processing of immigration benefits, especially the negative impacts on commercial
operations, the imposition of undue costs on companies, and the compromise of our nation’s
ability to attract top tier international talent. She noted that a recent study by eight business
associations indicated that visa delays alone are responsible for about $31 million in lost dollars
to U.S. business. She also opined that backlog reduction could be achieved by: adopting a
commercial management approach and developing clear legal standards and policies, along with
clear lines of communication created within the agency; training USCIS personnel on the key
categories of immigration benefits; streamlining the system for efficient application processing;
implementing quality control initiatives; and undertaking an analysis of the ability of current
resources to match demands.
Senators Introduce Homeland Security Civil Rights and Civil Liberties Protection Act
Senators Ron Wyden (D-OR) and Susan Collins (R-ME), on June 17, introduced the Homeland
Security Civil Rights and Civil Liberties Protection Act of 2004 (S. 2536). This bipartisan bill
seeks to ensure that the Department of Homeland Security (DHS) Officer for Civil Rights and
Civil Liberties and the DHS Inspector General (IG) have a clear statutory mandate and the
necessary authority to effectively protect civil rights and liberties. Among other provisions, the
bill guarantees that the Officer for Civil Rights and Civil Liberties and the Privacy Officer will
continue to figure prominently in the agency’s hierarchy by specifying that they shall report
directly to the Secretary. Furthermore, the bill instructs the DHS IG to designate a senior official
within the IG’s office to focus on civil rights and civil liberties matters with authority to initiate
investigations of alleged abuses of civil rights and liberties by employees or officials of the DHS
and employees or officials of independent contractors or grantees of the DHS. Somewhat
symbolically, the bill also amends the DHS’s statutory mission statement to emphasize the
agency’s role in protecting civil rights and liberties.
ICE Pilot Project Provides Alternatives to Detention
U.S. Immigration and Customs Enforcement (ICE) unveiled a new pilot program on June 21 that
would provide alternatives to detention while seeking to minimize in absentia rates and maximize
removal rates. The Intensive Supervision Appearance Program (ISAP) will debut in eight cities:
Baltimore, Philadelphia, Miami, St. Paul, Denver, Kansas City, San Francisco, and Portland
(Oregon). ISAP will include the use of tools such as curfews, electronic monitoring devices,
telephonic reporting, home visits, work visits, etc. To participate in the program individuals must
not be subject to mandatory detention, must maintain a local address within the jurisdiction of the
ISAP field office, and must not be a violent offender or threat to public safety. In addition,
prospective participants must volunteer for the program. The pilot project will be managed by
ICE’s Detention and Removal Operations office in partnership with contractor Behavioral
Interventions, Inc.
AILA commends the agency for seeking less restrictive alternatives to detention for noncitizens
who are in removal proceedings, but is concerned about several issues related to implementation
of this fledgling program, including: whether the program eventually will apply to individuals
who would not otherwise have been detained; the contracting company’s lack of experience in
non-criminal alternative detention programs; the absence of training requirements for the
contracting entities’ employees (e.g. sensitivity training regarding interaction with torture
survivors); and the lack of employment authorization for individuals released under the program
(unless otherwise employment authorized).