Professor Maurice Waters
Staff Member, Congressman Conyers’ Office

Social Trust and Foreign Policy: Immigration and Law Enforcement Issues

Secretary's Open Forum
May 25, 1999

The following paper was written by Professor Maurice Waters, a staff member in the office of Congressman John Conyers, Jr. It was prepared with the assistance of Minority staff specialists in the office of the House Judiciary Committee. It is distributed in place of a presentation that was to have been made by Congressman Conyers, who was prevented from appearing due to the work that required his attention as Ranking Member of the Committee.

America's Immigration History and its Current Law

Despite the noble and compassionate words of Emma Lazarus* inscribed on the pedestal of the Statue of Liberty in 1903, Americans have no always reflected that spirit of support for the immigrant even in the early years of our country's development. Questions were raised by some of our founding fathers including even Benjamin Franklin about who and how many newcomers should be admitted to these shores.

By the middle of the 19th century the major source of immigration no longer came from western Europe, and had shifted to southern and eastern Europe, although Germany continued to be a major source of emigration. The search for work and the need for workers coincided. American employers eager for cheap labor gladly supported the search for the new immigrant.

In 1882 Congress passed the first immigration statute, barring Chinese immigrants. Prejudice, formerly just vocally expressed, now became part of American law as it applied to immigration.

In the 1920's, quotas designed to maintain our original ethnic and racial immigration origins became the basis of our new laws. And while the quota concept was finally abolished in the mid 1960's, the numbers admitted to this country continued to favor white Europeans and their descendants. This prejudicial attitude was particularly evident in the Popenoe eugenics movement in 1924 which took the view that certain races were in character and intellect superior to others. 

The major changes that occurred after World War II were designed to restrict persons on the basis of political ideology. Hundreds of thousands of refugees were admitted, many fleeing from political and/or religious persecution.

The issue of social trust and immigration should not be viewed solely from the perspective of the number and place of origin that the law provides regarding the acceptable immigrant. There is no doubt that the issue of social values arises when certain groups are accepted in large numbers and others are rejected or allowed to enter the United States only as a very small per cent of the total admitted. But it is clear that attitudes affecting social trust are also reflected in the provisions of the law which bear upon the treatment shown toward applicants when they appear.

If we look at our history of immigration concerns and legislation, one could conclude that America has been preoccupied with 4 issues:

1. From our founding days until WWII our emphasis was on maintaining our original racial and religious characteristics.
2. From WWII to the present our concern has been to maintain our ideological values of capitalism and democracy.
3. Throughout our entire history we kept our doors open to the persecuted.
4. Throughout our history we continued to stress our needs for labor and scientific know-how.

Earlier immigration legislation had numerous deficiencies. The assumptions and concerns reflected in the earlier laws we acknowledge often had bi-partisan support. But it is our belief that the present law also contains many undesirable provisions. It is not our intention to provide a detailed analysis of the current law, the stature being much too complex and the time too short. Rather we will single out a few examples of what we believe to be serious deficiencies in its administrative provisions.

In 1996 Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act, generally referred to as IIRIRA. Though passed in 1996, this law has not yet been fully implemented.

In each instance the Congress concluded that the law previously in effect was not adequate nor being implemented properly. Thus, a much more zealous approach to our "immigration problem" was advocated.

Before IIRIRA, the immigration officer had no discretion to remove aliens. If he had any doubts about the alien's right to enter, the case would generally be referred to an immigration judge. The alien could appeal an adverse decision by the judge to the Board of Immigration Appeals. However, significant changes have been made in the new law which many claim has reduced the American concept of justice and fair play. It is this viewpoint that I now want to present. 

Under IIRIRA an immigration officer with limited legal training may summarily exclude certain categories of aliens without a hearing, and with no right of appeal for the alien. This is known as an expedited procedure, and is done at the border. Those affected by this expedited process may not re-apply for admission for at least 5 years. The grounds for exclusion could be, for example, that the alien's statements appeared to the officer to be fraudulent or misleading, or that his entry documents were invalid. And while the officer's decision is subject to review by a supervisor, it cannot be considered by a judge of the Board of Immigration Appeals. The only judicial review in this expedited process is by habeas corpus, and the court's relief can only be to order a full hearing in a regular removal proceeding. To allow officers of such a low grade, who are not lawyers, to have such a sweeping authority regarding the admission or removal of aliens appears to many to greatly diminish the notion of due process. And the picture is not notably better with regard to those who seek asylum based on a fear of persecution, for their claims may not fully be investigated in a legal or factual sense. In fact there is no administrative judicial hearing available to them. Here too, asylum officers although trained in asylum law and the country of the applicant operate with a degree of authority that is worrisome. The alien can be summarily removed if he or she does not convince the officer or immigration judge that their fear is credible. The problem is even greater if the basis of the fear is unusual and absent a standing that is well acknowledged. 

Other grounds for objecting to IIRIRA as the law now stands pertain to the denial of entry for the alien, and the grounds for this. For what one could claim are flimsy and unjustifiable reasons the application can be denied and the status classified as "inadmissible." The refusal would be for at least 5 years, or it might be as much as 20 years if he were removed from the US twice. The reasons can be that the applicant may not have appeared at the date and time for which the hearing was set, or he may have violated, even unknowingly, a condition required in the visa, or he might have returned from his home abroad to the US after the visa expired. And if he overstayed his visa he could be expelled for 10 years, even if the overstay was to pursue administrative proceedings regarding the decision to remove him. He might also be denied admission on the grounds that he is or was a member of an organization defined by the US as a terrorist organization, even though the alien claims that he had not known or heard that it was such an organization. Recalling the US government's role vis-a-vis certain political movements in Latin America, the legitimacy of such a designation might, at times, be questioned.

Another aspect of the 1996 law that has provoked criticism is the broad definition now given to the term "aggravated felony." Because of the concern over crime and the belief that the INS was not preventing the arrival of aliens with criminal records or removing many such persons, the definition of "aggravated felony" was expanded, raising the question as to whether it could now be appropriately applied in a fair and just manner. As it stands now, aliens charged with unlawful behavior may have committed acts so limited in seriousness that the authorities who originally prosecuted the individual may have concluded that the violation of the law, or the past behavior of the accused did not warrant even a single day of incarceration. Yet the fact that the alien committed the act could, under IIRIRA's provisions, be defined as an aggravated felony, and therefore be sufficient to remove from him, or deny him admission to the United States. Once removed on these grounds, there is little likelihood of his ever being allowed to return. 

The list of crimes that constitute aggravated felony comes from many statutes. They include among others gambling, prostitution, altering passports and commercial bribery, and the conviction for which may have occurred before or after the passage of IIRIRA. The punishment for some covered crimes may have been as little as one year. Nevertheless, the right to exclude or expel him would exist. 

A major criticism of the provisions regarding the crimes for which an individual may be excluded or removed arises from the fact that the law allows no discretion regarding the possible change in character of the alien involved. His or her life style, achievements or service may have been so notable as to warrant special recognition at home or abroad, and yet the law does not allow for this standing to be factored into the immigration officer's decision, which will have to be based solely on the provisions of the Act. If your status is placed under the aggravated felony provisions, you have no grounds for appeal.

A second weakness lies in the lack of any assistance provided to the alien to aid him in understanding how he might move to alter the circumstances confronting him. There is no legal or ombudsman type of assistance provided by law to aid him in knowing how to proceed to meet the harsh terms which might confront him.

We come now to one other controversial section of the law which critics claim creates an excessive and unnecessary burden on the government, especially if one considers the likelihood that the provision cannot be carried out effectively. The concern here is with what is known as section 110 of IIRIRA. The objectives of this section were to deal more effectively with what were considered 3 major problems in immigration. They pertained to our performance in:

1. Drug trafficking
2. Smuggling
3. Alien overstays

It requires each individual alien to register as he or she enters the United States and again as they leave. The load on computers and personnel would be overwhelming and incredibly time consuming. Clearly the queue at points of entry such as Detroit, El Paso, Brownsville, Buffalo and other such major cities will become so burdensome, particularly for commercial traffic, that it would have a negative impact on tourism and the flow of commerce. It is also questionable whether that provision could aid in the reduction of overstays, inasmuch as there is no known method used in America to keep track of where aliens go after they enter the country.

Finally, we should note that the usual problem of how to deal with refugees and those seeking asylum is made no easier under this law. Social attitudes will always have some bearing on who should be admitted and in what numbers. And placing this type of responsibility on officers dealing with asylees, even though they are trained in the law of asylum, and the country of the applicant, is awesome considering the fact that the alien can be summarily removed if he or she does not convince the officer that the fear of persecution is credible. The problem is even greater if the fear is based on unusual circumstances with which the officer is not familiar.

This presentation is designed to point out some of the serious problems that can arise under IIRIRA and to express the hope that the very real and appropriate concerns regarding our past immigration policy can be adequately met be recognizing the difficulties outlined above, and by moving in a bipartisan and dedicated manner to resolve them.

*Emma Lazarus

"Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tost to me,
I life my lamp beside the golden door."

Source: U.S. Department of State

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