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In March, members of Congress had a field day with the latest blunder by the Immigration and Naturalization Service: the mailing of visa approvals covering two of the Sept. 11 terrorists months after the attack. It was great sport to heap scorn on the agency while the cameras rolled, or to dress down the INS commissioner during a hearing. But these spectacles, however superior they may make the participants feel, don’t advance any public objectives. In fact, they probably make it that much harder to achieve a workable immigration system. What person of talent would want to take a job in our immigration agencies in the face of that kind of abuse? More importantly, our legislators will find in their mirrors a significant source of the problems at the INS. Congress will have to change its behavior in a disciplined fashion if we are ever to develop an immigration system that really works. DIFFICULT CHALLENGE The regulation of migration is a far more complex business than most people appreciate. For starters, the volume is massive — 500 million border crossings a year, 7 million applications for benefits (including requests for work authorization, extensions of stay, naturalization and visa petitions) and well over a million apprehensions. Many casual observers also assume that controlling immigration is merely a matter of locating violators. But that is just the start of a costly process that may involve further investigation, detention, legal hearings, and a massive bus and air travel network to remove more than 200,000 people annually. Members of Congress are fond of pointing out that they have more than doubled the INS’ budget over the last several years — therefore it must be incompetence that accounts for the agency’s problems. Agency misfires are certainly part of the story. But no study ever documented that the old budget was only half as large as we need for effective immigration control. In fact, major resource infusions will be required for years. MIXED EMOTIONS Most significantly, the INS resides on the fault line of America’s deep ambivalence about immigration. Often we cherish it, valuing the cultural variety and economic benefits that immigration brings. In prosperous and secure periods, employers and family members and universities can get awfully impatient waiting for INS approvals. Careful checks of applications or even routine enforcement against people clearly here illegally spark denunciations of the INS. Congress does not abstain when the tide runs that direction. But then when the economy goes sour or we are reminded of security threats, the view of immigration darkens, and Americans suddenly wonder why we don’t deploy all kinds of safeguards before admitting people, applying a heavy benefit of the doubt against admission. To apply such a margin of safety inevitably means that some innocents will be denied entry. It is impossible both to facilitate travel, as businesses, universities, and family members demand, and still sustain the tightest protections against those who just might be dangerous. There are always trade-offs. Over the past few months we have heard the standard congressional tirades about the need to reorganize the INS. But it’s not the agency that has impeded progress on this front. The Justice Department has had detailed reorganization plans ready for nearly three years. Congress blocked implementation in 1999 only because the DOJ’s version differed from its preferred version — yet Congress failed to deliver on its own legislation. The House had been doing the same with the Bush administration’s plan, announced last fall. The lingering uncertainty has been terrible for INS morale, inducing many good officers to leave. Late last week, the administration announced it would accept the basic House plan, but will apparently still seek refinements more to its liking in the Senate. Those refinements are important. The House once seemed bent on rigid separation of enforcement from immigration benefits. But this is largely a misdiagnosis. Some of the INS’ key problems derived from the very failure of officers issuing benefit decisions to make full use of enforcement information — that’s why no one stopped Mohammad Atta’s visa approval notice. The reorganization plan that the House approved last Thursday moves toward accepting this insight, by giving more coordinating powers and better centralized staffing to the official slated to head the entire immigration function, a new associate attorney general. The Senate should take this approach still further. RUSH TO LEGISLATE Meantime, legislative hyperactivity on other fronts has been a huge impediment, making it difficult for top INS officials to concentrate on the patient, unglamorous work required to reform obsolete procedures, unclog bottlenecks, and improve coordination. Thoughtful reform is hard enough to do with a stable system. Even then, an INS commissioner can succeed only by picking key targets and moving on just a few at a time. But Congress has instead guaranteed instability, hitting the agency with a blizzard of new demands over the last six years. In 1996, in a climate still dominated by the negative view of immigration — a product of the recession of the early 1990s and of California’s politics — Congress passed 400 pages of amendments to the immigration laws. Almost all the energies of top officials had to be diverted from solving lingering problems toward retooling for the new provisions. Had the law settled in at that point, perhaps the INS could have gotten back to its patient management improvement. But it couldn’t, because much of the 1996 law rested on a faulty premise. Members of Congress had competed that year to see who could design measures that sounded toughest on illegal migration. In the rush to legislate, however, they paid little heed to the realities of enforcement at street level. Overly tough laws are actually counterproductive, because officers hesitate to enforce, judges seek loopholes, and constituents demand new changes. Shortly after the 1996 election, when the economy improved and Republican leaders decided to start courting Latino voters, a different competition began — to soften the harsher edges of the recent law. Instead of just repealing objectionable provisions, however, congressional factions compromised on a series of intricate new special programs that benefit just a few of the groups hit hard in 1996. They ended up with special rules for Nicaraguans and Cubans, different ones for Salvadorans and Guatemalans, and then a year later still others for Haitians. Throughout this period, Congress has also given us start-and-stop temporary programs, known as Section 245(i), for others (largely Mexicans) who would now qualify for a green card based on marriage or work, if not for one of the 1996 crackdown measures. Simple repeal of the problematic provisions would have made — would still make — far more sense, and would free up INS energies to address long-standing problems. OVERSIGHT PROBLEMS Further, the pending INS reorganization bill could turn out to be another hornet’s nest of micromanagement. Congress would serve us all better by enacting a lean statute, marking out the basic outlines of the new system, and leaving most of the details to the executive branch. In particular, Congress should avoid the detailed experience requirements applied to the associate attorney general and the two bureau heads that now appear in the House bill. The associate attorney general, according to the bill, can’t simply be a skilled immigration lawyer who enjoys the president’s trust; he or she must also have five years of specified management experience. But Congress can’t know in advance who has the best mix of skills and ideas. Limiting the talent pool is self-defeating. The Immigration and Nationality Act turns 50 this June. It has become encrusted with a host of complex provisions that took shape largely because of petty congressional maneuvering. They serve their intended beneficiaries badly and impede sensible management. If Congress can’t bring itself to simplify the statute, it must at least develop the discipline to cease adding new complications. And please stop the pious denunciations of the officers who try to take on this conflicted business. They can do better, but not if the rest of us are only seeking scapegoats. David A. Martin is professor of law at the University of Virginia. He served as Immigration and Naturalization Service general counsel from 1995 to 1998.

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