Homeland Insecurity

The dancing on the grave of the Immigration and Naturalization Service began last April, when the House of Representatives resolved to abolish the 110-year-old agency. Voting 405-9 to split the INS into two new bureaus—one dedicated to service, the other to enforcement—Congress members played a spirited game of blasting the federal government’s “most dysfunctional agency.” They kidded about alternative ways of reading the INS’s acronym—”Incompetent and Negligent Service,” “Ignoring National Security”—and Representative Bob Barr, Republican of Georgia, recommended that Congress “shred it, gather the shreds, burn them, gather the ashes, and distribute them through the four corners of the world.”

There wasn’t so much merriment in the vaunted old halls around the passage of the Homeland Security bill on November 19, if only because the rancorous partisan debate over some provisions of the law killed any spirit of jollity. But on paper, at least, the bill wipes out the INS once and for all, sweeping such functions as border patrol and deportation into the Department of Homeland Security’s Bureau of Border Security, and moving “benefits” like the processing of naturalization and green cards into its Bureau of Citizenship and Immigration Services.

How, exactly, the 36,000 employees of the INS will be redeployed has not been entirely settled yet, and, as with the rest of Homeland Security—which will absorb 22 agencies and 170,000 workers—the reshuffling is expected to take at least a year or two, possibly more, so the INS as we know it is not going away for a good while. And even when the new managers take their place at the top of a new structure, there is little guarantee they will have any more success in solving the backlogs and bungles that have plagued the INS for so long.

Quite the contrary, according to some critics. In his last and lonely stand against the Homeland Security bill, Senator Robert Byrd of West Virginia warned of a “bureaucratic behemoth” that has more to do with satisfying “inside Washington agendas” than improving security. Indeed, the DHS may reproduce the very problems that have made the INS so inefficient and unaccountable—but on a much, much grander scale. (Advocates for immigrants have only one unequivocally good thing to say about the new arrangement: It moves the responsibility for unaccompanied minors who enter the U.S. without documents out of the hands of INS enforcement and into the Office of Refugee Resettlement, within the Department of Health and Human Services.)

Based on the Bush administration’s performance at the INS so far, Homeland Security seems doomed. Attorney General John Ashcroft, in whose Justice Department the INS currently resides, promised again and again to crack down on corruption and incompetence within the agency, beef up the border, and plug up the holes in security procedures. Congress handed over nearly $1 billion on top of a $5.5 billion budget that had been swelling since 1996. Since last March, when visa renewal approvals were mailed out to two of the 9-11 hijackers—six months after the attacks—Ashcroft seized control of the agency, subverting top management, and setting his own policies. And still, the place is a shambles—in worse shape than before 9-11. Morale is at an all-time low and uncertainty at an all-time high in the agency, according to several INS sources, none of whom would speak for attribution about the free fall they all agreed they’d been in for more than a year.

Immigrants themselves, of course, are bearing the brunt, as the Voice has documented through the year in this series. Despite President Bush’s promises to cut processing times for routine procedures like visa renewals and green-card applications for relatives, waiting periods have in many instances gotten longer. Meanwhile, the U.S. has taken in less than 40 percent of the 70,000 refugees it promised to resettle this year. For immigrants who do make it in, the government imposes voluminous new tangles of red tape. More and more non-citizens are crammed into detention facilities, county jails, and private prisons, spurring the prison industry just when the criminal population is beginning a decline.

For all that, are Americans any safer? “Do the math,” suggests T.J. Bonner, president of the National Border Patrol Council, the union representing the agents who are responsible for blocking illegal crossings into the country. INS inspectors and Border Patrol agents have been fleeing their jobs at an alarming rate. “It’s still extremely easy to slip into the country,” Bonner says.

After 9-11, Congress demanded the hiring of 1900 new border personnel but, says Bonner, “For every person we hire, another walks out the door.” In the fiscal year ending this September 30, he says, the Border Patrol lost some 20 percent of its experienced workforce—nearly 2300 people. As for INS inspectors, who question foreign travelers as they enter the U.S., 540 bolted in the same period—a 50 percent increase in the usual attrition rate, according to INS recruitment chief Sid Waldstreicher. Noting that the INS has signed up nearly 8000 new people in 2002, Waldstreicher says, “We did have a record hiring year. The problem is we lost far more employees than we ever anticipated.” The net gain to the force has only been in the dozens.

The mass exodus results from a combination of factors, Bonner explains. One, of course, is money. About a third of the departing Border Patrol agents took jobs created after 9-11 as air marshals, where they stood to make a salary leap of as much as $10,000 from a starting pay of about $35,000 a year in the Border Patrol. Congress responded in August by authorizing the upgrading of some INS jobs, enabling workers to rise to much higher salary levels as they accrue time on the job.

But that doesn’t address worker uncertainty and unhappiness, Bonner says, warning that the likelihood that workers in the new Homeland Security agency will lose their union protections is driving people away. “It’s our guys who spoke up about the need for more personnel on the Canadian border even when the INS was saying they were doing fine,” he says. “Congress listened and authorized the tripling of positions there. But nobody is going to speak up without union protections.” What’s worse, he adds, agents who witness wrongdoing or corruption will keep their mouths shut once whistle-blower provisions are weakened in the new department.

Chuck Murphy, who retired in June from his position as president of the National Immigration and Naturalization Service Council—the union of INS workers—goes so far as to suggest that the loss of protections is not about improving security, but a cynical move to bust federal unions altogether. “It’s our worst nightmare,” he says, adding, “I’m just lucky to have gotten out when I did.”

Spirits are not much higher in the white-collar precincts of the INS. Though Waldstreicher could not provide any numbers, insiders say anecdotally that attrition in this sector is accelerating, too. Certainly the discontent has risen to the top: No less than INS commissioner James Ziglar announced his resignation in mid August, and will be leaving his soon-to-be abolished post at the end of the year.

Though Ziglar is not speaking publicly about his decision, by all accounts he became frustrated by the increasing irrelevance with which he was regarded by Ashcroft and his cronies after 9-11. “Just looking at how things have operated, you can see how difficult Ashcroft made it for a pro-immigrant Republican to have a role in his Department of Justice,” says Angela Kelley, the deputy director of the National Immigration Forum, referring to Ziglar.

A notorious example of Ashcroft’s power grab was the demand that foreigners living in the U.S. report any change of address to the INS within 10 days of moving. On July 26, Ashcroft resuscitated the 50-year-old law, and non-citizens responded. INS offices were flooded with 700,000 change-of-address cards—which have been gathering dust ever since.

Any INS official could have told Ashcroft that the agency did not have the capacity to process such data when he demanded it be collected, but Ashcroft wasn’t asking INS officials. He’s been relying, instead, on two young protégés with little experience in immigration policy: One is Kris Kobach, a 36-year-old conservative law professor from Missouri, who is a White House Fellow on temporary loan to the Justice Department this year—on a kind of upscale internship. That didn’t stop Ashcroft from giving Kobach a leading role developing initiatives targeting immigrants, most controversially the proposal last spring that local and state police departments should track down illegal immigrants. (Even the White House objected to the plan.) The other is Assistant Attorney General Viet Dinh, 34, a refugee from Vietnam in charge of overseeing the Office of Legal Policy. The mastermind of the USA Patriot Act, Dinh is widely regarded as the force behind such measures as increasing Internet surveillance and eavesdropping on attorney-client conversations. Dinh asserted that anyone suspected of terrorism would be arrested if they “so much as spit on the sidewalk.” He’s largely credited with the administration’s chilled attitude toward immigrants.

That attitude is surprising given Dinh’s own dramatic story. In 1978, at age 10, he escaped from Vietnam with his mother, four siblings, and 85 others on a rickety 49-foot boat. After 12 days at sea, they reached Malaysia, where they waited in a refugee camp until permitted to come to America. In the U.S., Dinh helped support the family by picking berries and scrubbing floors, went to Harvard College, stayed on for law school, then clerked for Justice O’Connor in the Supreme Court. The administration touts him as—in Ashcroft’s words—”a living, breathing example of the transforming power of freedom.”

Dinh came along with Ashcroft and President Bush to a special swearing-in ceremony for new citizens held on Ellis Island in July 2001—back when visitors to that island could still see the World Trade towers hovering on the skyline. Ashcroft welcomed them to the “center of immigrant experience in America, to celebrate America’s longstanding and continuing embrace of new Americans from all parts of the world.” Dinh administered the oath of citizenship. Bush addressed his new “fellow Americans,” and made his own vows: assuring that the INS would “treat every immigrant with respect and fairness,” and asserting that “Immigration is not a problem to be solved. It is the sign of a confident and successful nation. . . . New arrivals should be greeted not with suspicion and resentment but with openness and courtesy.”

The devastating change to the skyline two months later turned the administration’s promises to rubble as well. In the new paradigm, immigration is a problem to be solved, suspicion the overriding principle. That seismic shift in outlook, far more than any structural change in how immigration services may be administered, will have the most far-reaching effects on the treatment of immigrants and visitors to the U.S. It already has.

Earlier this month, for example, the INS invoked a controversial post-9-11 regulation that allows the agency to keep individuals in detention even after an immigration judge has ordered their release. Meant to protect the U.S. against likely terrorists, it was used by the government on November 8 against some 200 Haitians seeking asylum, who traveled by boat and swam ashore in Florida in late October. According to Cheryl Little of the Florida Immigrant Advocacy Center, virtually all of the Haitians who have gone before a judge have been granted release on bond, but they have remained in INS custody. The government has said that it is detaining Haitians to deter more of them from attempting the dangerous journey. When advocates for the asylum seekers complained that Haitians were being treated unfairly, the U.S. pulled out the post-9-11 ruling to declare that all non-Cuban asylum seekers arriving by sea would be subject to mandatory detention.

Managing America’s contradictory attitudes toward the immigrants who have fueled the country’s growth has never been easy. Like the INS before it, the Department of Homeland Security will be hampered by immigration policy itself. The laws Congress makes are often contradictory and overreaching. The draconian legislation of 1996, for instance, intended to express how tough on crime the lawmakers could be, led to thousands of deportation cases involving permanent residents who had committed minor crimes years before and gone on to live law-abiding lives and raise American families; the ’96 laws also overwhelmed the detention system, which was unprepared to handle the swelling numbers, and cases of abuse shot up. As this series has pointed out, the best intentions of the INS have often been stymied by an ill-informed Congress.

Now, with all three branches of government in Republican hands, the liberal compassion for immigrant aspirations may dissolve from the discourse. But the intra- Republican battle between hard-line nativists who want the borders slammed shut and free-market capitalists who want to keep them open to cheap labor will no doubt produce ever more convoluted policy. Under such circumstances, the new bureaucratic behemoth doesn’t have a prayer.

This is the last in a series investigating the INS.