Inside Job

year ago, The Oregonian newspaper in Portland, Ore., ran a six-part series eviscerating the Immigration and Naturalization Service. The series, which was awarded a Pulitzer Prize in April, condemned the agency for its "iron-fisted" approach to immigration enforcement. It said that murder suspects in the United States have more rights than the unfortunate people who fall into the clutches of the INS.

The series detailed numerous instances in which INS enforcement agents were excessively harsh, deporting immigrants for only minor crimes. Asylum seekers whose stories didn't hold up were jailed for weeks without a hearing. Illegal immigrants caught at the border were denied bond. Immigrants caught lying to INS agents were deported and barred from re-entering the country for 10 years. The series painted a portrait of an overzealous agency that often went too far in enforcing the nation's immigration laws.

But that was before Sept. 11.

The investigation of the Sept. 11 attacks revealed that the INS had allowed at least three of the hijackers-Waleed M. Alshehri, Nawaf Alhazmi and Ahmed Alghamdi-to remain in the country after overstaying their visas, and that the agency has virtually no ability to go after illegal immigrants once they've made it across the border and settled in the country. The agency, according to many critics, has not been nearly harsh enough.

In the days immediately after the attacks, the Zogby International polling firm asked Americans whether the government "is doing enough or not enough to control the border and to screen people allowed into the country." Seventy-seven percent of respondents said "not enough." Eighty-five percent of respondents agreed that the "enforcement of immigration laws and the border has been too lax, and this made it easier for the terrorists to enter the country."

The post-Sept. 11 reaction-contrasted with the The Oregonian's pre-Sept. 11 criticism of the INS-demonstrates what the agency is up against as it tries to carry out its dual mission, both enforcing the immigration laws and providing service to legal immigrants seeking citizenship. The challenge of the moment-to more effectively police the nation's interior-will require better technology and increased cooperation with other federal law enforcement agencies. But it also will force the INS to come to a truce with those who have condemned it in the past for doing its job too harshly and who themselves sometimes have a keen interest in helping immigrants reach U.S. shores. These groups include businesses, universities and technical schools, municipal governments and ethnic organizations.

Enforcement Barriers

Four of 10 illegal immigrants in the United States arrive with a legal temporary visa to travel, work or study, and simply never leave, according to the INS. Three of the men accused of attacking the Pentagon and World Trade Center had done exactly that. All told, the INS estimates that 3 million people are living here illegally after overstaying their visas.

The INS' interior enforcement unit is charged with nabbing those 3 million, plus an additional 4.5 million people who made it across the border without a visa. Separate from the Border Patrol, the enforcement unit consists of 2,500 INS special agents based in 33 district offices-30 in the United States, one in Rome, one in Bangkok, Thailand, and one in Mexico City. Of the 2,500 agents, 500 work in administrative positions, leaving 2,000 agents to investigate violations of immigration law. Administrators in this investigative unit are allowed to hire agents for only 89 percent of available positions, part of a unit downsizing that is continuing despite the Sept. 11 attacks.

Judging by the numbers involved, the INS is ill-equipped to enforce immigration laws in the interior. Terrorists who sneak across the borders or arrive with legal visas have little to fear from immigration authorities.

The 19 suspected terrorists "didn't walk here from Mexico or Canada. They didn't stay in El Paso or Buffalo. They stayed in the interior, and unless they did something stupid, they knew they were home free," says Thomas Fischer, who recently retired as the INS' district director in Atlanta.

With a district staff of just 200, one senior INS investigator says that his-and every other-district office has had to prioritize. "It's like a cop trying to catch speeders. You can't catch everyone, so you set the radar at 70 mph. We concentrate on aliens convicted of crimes. The ones who are washing dishes aren't as important as the guy who's in jail on a rape charge."

But by that logic, the INS won't stop many terrorists.

Indeed, until Sept. 11, INS special agents focused on criminal immigrants, often causing a stir when agents deported people who'd committed relatively minor crimes, such as shoplifting, drunken driving or drug possession. Each district office also has agents responsible for investigating immigrant smuggling rings, a fraud section that works on busting people who produce and sell false immigration documents, and another group that raids businesses where illegal immigrants are suspected to be working. INS special agents also sit on several interagency task forces, one dealing with drugs, another with organized crime, and one with terrorism.

The agents have limited tools. A visa holder flying into the United States must fill out an I-94 form-which seeks name, birth date, country of citizenship and date and port of entry-upon entering the country. An INS inspector notes the visa holder's arrival in an INS computer database, and determines how long the person can legally stay in the country. When departing the country, the foreigner is supposed to surrender a second form to the airline, which then sends it on to an INS processing center in London, Ky. But INS public affairs officer Russ Bergeron says the process "doesn't present an accurate or timely picture of who's leaving." Some airlines "are better than others" in returning the forms, he says.

At the same time, visa holders who leave the country by land or sea need not even turn in a departure form. "There is not and never has been any form of accurate or timely exit control in the United States," says Bergeron. In the 1996 Illegal Immigration Reform and Immigrant Responsibility Act, Congress attempted to establish a departure monitoring system, but members of Congress whose districts bordered Canada killed the effort. They said it would hurt tourism and business along the border.

When it comes to stopping terrorists, the INS relies on its National Automated Immigration Lookout System (NAILS). But the INS system is not connected with similar databases at the Federal Bureau of Investigation or the Treasury and State departments. And Bergeron notes that the lists "are only as good as the intelligence that forms the underpinning."

The small number of special agents and the lack of good investigative tools has made interior enforcement difficult, but so has the lack of cooperation from businesses, universities, ethnic organizations, municipalities and even Congress. They have stymied INS enforcement efforts at every turn.

Consider the business community. For years, INS agents have conducted periodic workplace raids, descending on a work site, surrounding it, and then checking the citizenship credentials of every employee. It's an effective way to catch illegal immigrants, but businesses always have opposed it. They complain that the INS raids hurt one company while benefiting others that aren't raided, and leave businesses unable to fill many low-wage, low-skill positions.

But in 1997, congressmen in the Midwest complained about illegal immigrants crossing through their states on interstate highways. The INS, they said, was doing nothing to stop them.

Mark Reed, a former INS regional director in the Midwest, offered the congressmen a deal. "I said we will respond to your concerns about the highway and assist with the crime on your streets, but in return you have to support our efforts to look at the magnet that's causing these problems." The magnet, Reed says, was the lure of jobs at meatpacking plants in Nebraska and Iowa. The INS suspected that about 25 percent of workers at those plants were illegal immigrants.

Reed had a plan that he thought would be fair to the meatpacking industry but would also permanently cripple the industry's ability to hire illegal immigrants. The agency sent out subpoenas to all of Nebraska's meatpacking plants and several in neighboring counties of South Dakota and Iowa. INS agents ran records through a series of government databases, sent each employer a list of people whose records appeared suspect, and requested interviews with those workers. Employees who could not explain discrepancies were to be arrested and deported.

The INS said the project would ultimately replace INS raids across all business sectors.

But that never happened. Instead, top meatpacking companies hired lobbyists, told local congressmen that the program removed hard-to-replace workers, and disrupted the plants' ability to compete with meatpackers in other regions. Groups representing Mexican-Americans complained as well.

"Congress told us that we needed to study our program further," says Reed. "Nebraska developed a commission to take a look at it, and it said that enforcing immigration laws in Nebraska is unfair, and the program just kind of fizzled away into oblivion." Universities also have stood in the way of INS enforcement. It's a fact that particularly galls INS officials now, since they are facing criticism for allowing several of the suspected terrorists to enter the United States on student visas.

"To collect information on foreign students, we use a system that dates to 1983," explains the INS' Bergeron. "It is antiquated, untimely and inaccurate."

When a foreign student arrives in the United States, the agency sends a form to the school asking it to report whether the student arrived. But because the agency system is old and unreliable, the forms often are not mailed to schools for months after students arrive in the country. When the school sends back the form, it goes to the INS processing center in London, Ky. INS investigators say they never see the forms, so they are not useful as investigative tools.

In 1995, the INS asked Congress to appropriate money to develop an automated system to better collect data. When Congress passed the 1996 immigration reform bill, it included a provision to establish such a system. The INS began working on the system in 1997, and, by 1999, the agency was on the verge of implementing it. But, says Bergeron, "we ran into rather significant opposition from colleges and universities." The program was put on indefinite hold.

"Any time the INS has ever tried to get tough with a school, there's almost certainly a call from a congressional office," says James Dorcy, a former top INS investigator.

At the same time, INS investigators cannot even count on the help of local law enforcement officials. During the 1980s, ethnic and religious groups lobbied local governments to adopt "sanctuary city" policies in defiance of the INS, which was-to the dismay of the activists-deporting asylum seekers from El Salvador and Guatemala, two countries that were embroiled in civil wars. Numerous cities, including New York, Chicago, San Francisco, Los Angeles and Seattle, adopted policies that limited cooperation with the INS. Although INS investigators say cooperation with local officials today is strong in some parts of the country, sanctuary cities haven't gone away.

The 1996 reform legislation also allowed local governments to deputize their own law enforcement officers to act on behalf of the INS. But few cities have done so. In 1998, for example, Ruben Ortega, then the chief of police in Salt Lake City, proposed deputizing his officers, so they could arrest illegal immigrants. Ortega argued that illegal immigrants were involved in the city's drug trade. But Hispanic groups said Ortega's plan would lead to racial profiling, and the Salt Lake City Council defeated the proposal.

Warning Signs

Congress and the INS have doubled the size of the Border Patrol in recent years and boosted funding for new technologies to be used at the border, but the Justice Department's inspector general issued warnings about the failure to also consider interior enforcement. Two reports-one in 1997 and the other in 1998-specifically criticized INS management and Congress for allowing interior enforcement to sag. The September 1997 report said that the agency collected information on only 10 percent of visa holders entering the country, and that even that information was "incomplete and unreliable due to missing departure records and incomplete records processing." About 125,000 people overstayed visas each year, the report added, but the INS apprehended only about 10,000.

In 1998, the IG warned that the State Department's Bureau of Consular Affairs, which issues visas, and the INS were not doing enough to track down people who overstay temporary visas. The report stemmed from the arrest in Brooklyn of two men who were accused of plotting to bomb the New York City subway system. One of the men, Lafi Khalil, had entered the United States with a C-1 transit visa, allowing him to stay in the United States for up to 29 days while en route from the Palestinian-controlled West Bank of Israel to Ecuador. Khalil arrived in the country on Dec. 6, 1996, but never continued his journey to Ecuador, renting an apartment in Brooklyn instead. According to the IG's report, neither the immigration inspector nor the consular officer who dealt with Khalil "thought it was his or her role to verify that Khalil had a ticket to Ecuador or funds for the trip." When Khalil overstayed his visa, INS officers overwhelmed by the large number of illegal immigrants in the United States did not look for him, the report said.

Michael Bromwich, the inspector general who issued the 1998 report and who is now a partner at the Washington law firm of Fried Frank Harris Shriver and Jacobson, said he was "not aware of any substantial success in improving" cooperation between State's consular affairs division and the INS since the report was issued. Likewise, Bromwich said the INS was doing little to enforce visa time limits.

Remedies

Virtually no one thinks that the INS will adequately police the nation's interior any time soon. The agency's deficiencies are too great, and the opposition-from business, universities, ethnic groups and municipalities-remains.

But nearly every current and former INS official interviewed by Government Executive has a proposal to help the agency do its job better. Some of the most common recommendations were:

• Establish a system to monitor the entry and departure of visa holders. With a reliable system monitoring entry and departure by land, air and sea, INS special agents would know which foreign visitors had overstayed the moment their visas expired. It would not, however, help INS investigators find them.
• Require visa holders to check in once a year. Until the early 1980s, visa holders were required to visit a U.S. Post Office once a year to file a form stating their name and address. This requirement, which was rescinded by Congress, would give INS investigators a starting point to look for those who later overstayed visas.
• Make it a crime to overstay. If overstaying a visa were a crime, say investigators, the visa holder's identity would be entered into a National Criminal Information Center database, which the FBI maintains. Every police officer in the country has access to this database, and if a foreigner were then caught by a police officer for any offense-including something as simple as running a red light-the immigrant's illegal status would be discovered.
• Kill transit visas. A transit visa, such as the one Lafi Khalil was granted, is a relic of the age of steamship travel, according to INS investigators. It dates to a time when travelers from abroad often needed to wait as long as a week for their connecting ship. In the age of air travel, they say, transit visas are unnecessary.
• Amend the illegal entry statute. It is a crime to enter the country illegally. But if an immigrant is caught in the interior, INS investigators must be able to show when and where the foreigner entered the country to gain a conviction, often a difficult standard. As a result, illegal immigrants are rarely prosecuted. Illegal immigrants caught in the interior can be deported nonetheless, but agents say making it easier to prosecute would be a more effective deterrent.
• Restructure the INS. INS investigators have different views about how the agency should be restructured, but all agree it needs to be revamped. Some support proposals to split the INS in two, with one agency handling service (processing applicants for permanent residence and naturalization) and another managing enforcement. Others say the agency should be restructured internally. They propose merging the Border Patrol and the investigative unit, shuttering regional offices, and broadening the pool of applicants eligible for jobs in the investigative unit. The current structure, they say, makes it difficult for Border Patrol agents to become investigators.

Congress has mulled these and other reform proposals for years with little result. Those in the INS investigative unit acknowledge the agency has faced its share of management problems, but they assert that the real problem is the nation's failure to reach a consensus on how to deal with immigration. For years, they charge, special interests have chipped away at the interior enforcement team, and Congress has been complicit in the unit's dismantling.

Now, say investigators, the nation has to decide whether it really wants to dedicate the resources necessary to stop illegal immigration. Says one INS investigator: "I've watched our unit get slowly decimated. Then all of a sudden something like this happens and everyone starts asking, 'Who is going to handle it?' It falls to our small staff."