The Immigration Laws' Bureaucratic Babel
By Jane Black
Last year, 9.5 million people applied for visas to visit the U.S. For each applicant, foreign-service officers at U.S. consulates scanned forms and asked questions in an effort to determine the purpose of the trip, and whether that person would return to their country when it was over. Judgments can be arbitrary, and all decisions are final. But the one thing the diplomats don't know -- and can't know, even after the September 11 terrorist strikes -- is whether the visa-seeker is a suspected terrorist or a convicted criminal.
The reason: The State Dept. doesn't have access to the National Crime Information Center database -- the FBI's central list of bad guys. Nor can foreign-service officers get access to Immigration & Naturalization Service databases that contain information about whether the applicant was involved in criminal or subversive activities during an earlier stay in the U.S.
It's not just low-level diplomats left in the dark: The FBI does not have access to INS information that would reveal the immigration status of aliens in the U.S. who become investigation targets.
THE THREE Bs.
The reason? "It's the government's three Bs -- byzantine, bureaucratic, and balkanized," says Dan Stein, executive director of the Federation for American Immigration Reform, which lobbies for more restrictive immigration policies. Stein's group is not a lone voice. A State Dept. spokesman says the three agencies have been fighting for more than a decade for increased sharing of information, but inertia and a virtual turf war have prevented any progress.
The bottom line: Frontline government personnel are not equipped under current regulations to make national security decisions about who to let into the country. And once aliens are inside U.S. borders, the lack of intelligent tracking makes it nearly impossible for domestic law-enforcement agencies or the INS to keep adequate track of the millions of visitors each year.
Much of the problem is rooted in archaic technologies. Every year, the INS collects data on the 30 million nonimmigrant visitors to the U.S. The information is written on a paper form, called an I-94, that must be manually transferred into a computer. It's a method that even INS Commissioner James Zigler admits is an "extremely inefficient way" of processing data, and one that delays access to the information for weeks, even months. Says Stein: "The INS has essentially abandoned the collection of information. It would come in and sit in shoe-boxes. So, they just stopped collecting it."
Likewise, implementation of an electronic tracking system to keep tabs on the 500,000 foreign students in the U.S. has been repeatedly delayed. That's due in part to heated opposition from universities, which complained that monitoring would stigmatize foreigners and put an administrative burden on college registrars, who would be required to collect a $95 INS processing fee. Many universities rely on wealthy foreign students -- who pay full tuition -- to make ends meet. (See BW Online, 10/12/01, "Student Visas Aren't Making the Grade.")
While some of the blame for the lack of intelligence should go to bureaucratic infighting and private-sector intransigence, a significant portion can be laid at the feet of a U.S. Congress that has consistently failed to follow through on its own initiatives.
In 1996, Congress approved legislation that, among other things, required the INS within two years to set up an automated system to record the entry and exit of all visa holders. In 1998, Congress delayed implementation by requiring a feasibility study of the system. Against the backdrop of a booming economy, it hardly seemed like a big deal at the time. But the delay now looms large -- and no database is on the horizon.
PLUGGING THE HOLES.
In 2000, Congress approved the Data Management Improvement Act. That law extended the timetable for the INS check-out system to 2003 for airports and seaports, and to 2004 for the 50 largest land ports. To date, progress has been slow and the system remains stalled. "It's not that the capability isn't there. It just doesn't happen," says Lynda Zengerle, an immigration lawyer with Washington law firm Baker & McKenzie. "To me, it's doable. We just haven't put in the money or the thought." Repeated attempts to get comments from the INS for this article were unsuccessful.
To be sure, there is only so much even sophisticated immigration safeguards can do to prevent terrorism. Better intelligence is needed across the board -- especially from the CIA and FBI. The House Permanent Select Committee recently released a report calling for a restructuring the $30 billion intelligence services, which it said have been too focused on official military and government actions. "Immigration is only a small part of this," says Jeanne Butterfield, executive director of the American Immigration Lawyers Assn. "This wasn't a failure of immigration. It was a heinous crime by people who got by our immigration laws."
Still, immigration officers need to do their part now to help plug the holes that terrorists exploit. All 19 suspected hijackers who participated in the September 11 massacres are believed to have come into the U.S. legally. Yet the INS has no record of where and when six of them entered the country. Every government employee must be responsible for keeping good records -- and for sharing that information with those who need it.
Black is a reporter for BusinessWeek Online in New York
Edited by Douglas Harbrecht