Testimony before the U.S. House of Representatives
Committee on International Relations
Subcommittee on International Terrorism, Nonproliferation and Human Rights
February 13, 2004
Statement of Jessica M. Vaughan
Senior Policy Analyst, Center for Immigration Studies
Introduction. The recent hearing held by the 9/11 Commission on managing risk at the borders has again focused public attention on the important role our immigration system plays in the war on terrorism. Recognizing a terrorist at the border is a lot harder than recognizing some other forms of evil; you're not necessarily going to know it when you see it, despite our best efforts at profiling. Terrorists come in all shapes, sizes, and sexes, and may bear passports from any country. It is unrealistic to expect even the best intelligence agencies to stay ahead of the terrorists plans. For this reason, the best possible way to prevent the entry of terrorists into the United States is to have a well-functioning immigration system that is set up to deter, detect, and promptly remove those who lack a legitimate purpose for being here. Such a system requires three things: superior technology, abundant human resources, and the policies to make effective use of both.
Technology. We have made great strides in the last two years in harnessing technology to help us identify terrorists, criminals and illegal aliens when they encounter immigration officials. Some of the most successful new programs include:
SEVIS -- The student tracking system has performed admirably since its first big test at the beginning of the 2003 school year, despite cries of alarm and outright hostility to the effort from many quarters in higher education. It identified about 200 individuals falsely claiming to be legitmate foreign students, and led to the investigation of a possible smuggling ring.
USVISIT -- Early assessments of the first stage of the new non-immigrant visitor tracking project have also been very positive. In its first three weeks, the project nabbed at least 30 wanted criminals, most of whom had successfully escaped detection at the border on numerous earlier occasions.
Biometric visas -- The deployment of biometrics in the visa program is going very well. State continues to expand the scope of the Consolidated Consular Database, which includes digital photos and facial recognition technology, helping to minimize the number of false hits and limitations inherent in a name-checking system.
Information sharing among agencies is improving, though it is still incomplete.
These programs have dramatically improved our ability to catch known terrorists, criminals and illegal aliens, and make it easier to spot someone assuming a false identity. But technology-based solutions have their limitations. Systems can crash or slow down to a crawl. Back-up systems are not as comprehensive or up-to-date as the primary system, if they exists. The State Department name-check system used in embassies overseas is at the mercy of the local communications infrastructure, which can be very unreliable. Even in the United States operating speed can be a problem. Observers have reported that the USVISIT download can take minutes rather than seconds, which is far too slow to clear most busy ports at an acceptable speed.
Besides the predictable technical difficulties, there are translation-related problems associated with name-check systems. While they have been improved a great deal since they were first launched, consistent translation of foreign names can be a problem, and the database frequently generates hundreds of hits on common names, which is a source of regular frustration to users. This is one reason why the move to biometrics is so important.
My main concern, however, is not with the technological glitches. I believe these weaknesses eventually can be addressed with improved technology. My real concern is that, since the development of CLASS and other computer-based screening systems, the consular service has become far too reliant on technology to make the decisions, and downgraded the importance of human skills and experience in the process. Former Assistant Secretary Mary Ryan told the 9/11 Commission, that nearly all [Saudi] refusals were based on known ineligibilities revealed by checking the automated system. This statement suggests that, at least in Saudi Arabia before 9/11, consular officers were not doing their job that anyone who was not a known terrorist or otherwise listed in CLASS was considered eligible for a visa. This assumption directly contradicts the law, which requires officers to assume applicants are ineligible until they demonstrate otherwise. Since 9/11, the folly of this approach, and the importance of the two other ingredients personnel and policies has become obvious.
Personnel. We have seen how one alert officer can make a difference: INS inspector Jose Melendez-Perez's decision to send home the suspected 20th 9/11 hijacker; Customs inspector Diana Dean, who pulled over Ahmed Ressam in a car full of explosives intended for the millennium bombing plot; and consular officers in Germany who refused at least three al-Quaeda plotters seeking visas. These officers made good judgments that no software program could have made for them. Just as a doctor needs to have personal contact with the patient in order to properly diagnose an illness, consular officers and BCIS adjudicators need to have meaningful live contact with the majority of applicants in order to make good decisions.
For its part, the State Department last year finally reversed its interview by exception policy, so that now a much larger share of applicants must face a consular officer before getting a visa. The BCIS, too, needs to adopt similar standards in its adjudications process. Because we know that terrorist groups have recruited within the United States and that they may send operatives here for lengthy stays, it is no less important to interview applicants for change of status within the United States than it is to interview an overseas applicant. Currently, many of these applicants often tourists seeking student status, or students seeking permanent residence -- have no contact with an immigration officer after leaving the port of entry. This policy is one that made possible 9/11 hijacker Mohammed Atta's posthumous student visa approval.
Naturally, returning to a standard of practice that involves more interviews requires hiring many more officers to do the work. The State Department is very slowly trying to recover from years of hiring fewer new officers than were leaving the service. Last year, there were about seven-hundred consular officers stationed overseas in 211 posts. In addition to adjudicating six million NIV applications and nearly 600,000 immigrant visa applications, they provided a full range of services to American citizens, which can be very time-consuming in places where large numbers of Americans visit and work. This chronic understaffing has led to some serious problems that hamper our efforts to keep out terrorists:
- At some posts, the workload is so great that officers must conduct visa interviews all day long. In addition to contributing to stress and burn-out, this leaves little time for supplemental investigation outside of the interview, such as document verification, which can be just as critical as the interview itself. Attention to fraud varies widely from post to post, depending on the time available and the priorities of the supervising officers, but more officers would almost certainly boost anti-fraud efforts in general.
- With staffing so tight, training is often given short shrift, as officers are pushed off to post as quickly as possible, and put straight onto the line. By hiring more officers, the Department would have more flexibility to deal with staffing gaps and training needs.
- In many posts, particularly the very busy ones, officers are far too reliant on Locally Engaged Staff (LES) to do work that officers should be doing. For example, most consular sections assign LES to pre-screen applicants; e.g. examine documents, make sure the application is complete, etc. If a beleaguered or lazy FSO allows it, the pre-screening can slip quickly toward pre-approval of applicants. In one large North American post where this problem has been observed, many of the LES in the consular section are themselves immigrants from the same countries producing many of the problem applications at that post. In another post, this time a high-volume, high-fraud post in Asia, the American officers allowed the LES to complete the fingerprinting of applicants, in outright violation of regulations. The matter of LES is a very sensitive subject in the State Department, but nevertheless needs to be seriously examined. While many of the LES have years of experience and loyal service, and sometimes know the laws and regulations better than the American officers, it is also true that they have not undergone as thorough a background check, and may have ties to their community that run deeper than loyalty to their employer. The LES typically have been in their jobs a very long time, while the American staff turn over frequently, and this may add to both the temptation and the opportunity for them to become involved in criminal activity such as fraudulently obtaining visas.
With all the post 9/11 procedural changes and pressure to improve its performance, it would have been reasonable to expect the State Department to submit a budget request that reflects that priority, but that has not been the case. In its 2005 budget request, State has asked for funding for 63 new consular positions. Last year it asked for 68. That amounts to only about a 10 percent increase in consular officers, at a time when both the workload and public expectations for security and service are dramatically increasing. Indeed, State's own pre-9/11 workforce planning assessment, resulting in the Diplomatic Readiness Initiative, concluded that the Department needed to add nearly 400 positions to address its staffing crisis. At this rate, it will take at least another five years before State has enough personnel to do its job well. I can't recall another case of a government agency so unenthusiastic about hiring more staff.
The size of the consular corps is not the only human resource issue at State. Equally important is the fact that most consular officers are doing the work because they have to, not because they like it. The bulk of the routine adjudications work is handled by new junior officers on a mandatory consular assignment, who have had limited training and probably no experience in this kind of work. Most feel no particular calling to consular work, and are simply putting up with it on the way to an assignment in a different cone. While many are truly dedicated to their job and sincerely try to do the best they can, this arrangement is not a recipe for consistently high quality adjudications.
The State Department still clings to the idea that the visa function is best performed by generalist foreign service officers who can put consular work in a broader context, as its personnel office puts it. I believe the nation would be far better served if visa adjudications instead were performed by a corps of visa specialists who chose this work as a career. There are two possible ways to accomplish this: either transform the consular cone into a specialty cone within State, like security, financial management, information technology, and personnel, or move the entire visa operation over to the Department of Homeland Security (DHS), so that the visa policy and processing responsibility will be all under one logical roof.
Policies. Having the best technology and staff to do immigration work is important, but it is not quite enough. The agencies charged with homeland security and Congress must also provide a policy framework that allows these two tools to be effective, and avoid adopting policies that undermine successful new security initiatives.
For instance, the new USVISIT system has greatly enhanced our capacity to identify known terrorists, criminals, and other immigration law violators. Yet the DHS has chosen to have it cover only a small proportion of those who enter the country. Most Canadians, Mexicans, and Visa Waiver Program (VWP) visitors are not now and not slated to be recorded in USVISIT. These groups represent more than half of the total admissions in 2003. This policy has been adopted despite our understanding that some terrorists, such as shoe-bomber Richard Reid, have tried to enter under VWP, that al-Quaeda supports terrorist cells in Canada, and that dodgy groups of Middle Easterners have attempted entry via Mexico. Many of these arrivals are checked against watch lists at the port of entry, but unless they are recorded by USVISIT, they cannot be flagged easily as overstayers. In addition, anyone claiming to be a U.S. citizen is exempt from USVISIT. Gaining entry as a U.S. citizen is easier than one might imagine. Under current operating procedures, it is possible to be admitted as a U.S. citizen on evidence as thin as an unverifiable personal affidavit.
Moreover, DHS has no intention of keeping USVISIT up and running if the lines at the airport should get too long. According to a DHS memorandum leaked to the news media, if the port of entry clearance process begins to slow down, immigration officers will gradually relax USVISIT standards to the point where only those in the highest threat categories will actually be fingerprinted and photographed.
DHS has backed off a number of other reforms proposed soon after 9/11. For example, In April 2002, the INS announced its intention to revise the rules on how long visitors will be permitted to stay. Until then, foreign tourists were routinely granted a six-month stay. The INS had concluded that this policy greatly contributed to the overstay problem and provided terrorists, drug dealers and other undesirable visitors with too long a period of time to carry on their illegal business before coming to the attention of immigration authorities. INS proposed awarding tourists a 30-day stay, unless the visitor could demonstrate a legitimate compelling reason to stay longer. Agency statistics showed that only about one-fourth of all tourists would be affected by the change. Following an intense lobbying campaign against the proposal by immigrant advocates and foreign vacation homeowners, however, the idea was quietly dropped in the transition into DHS.
In addition to displaying a certain timidity toward letting effective systems work as intended, both of the primary immigration agencies tolerate far too much fraud in the system. Part of this is a result of inadequate staffing, as previously discussed, but mostly it is a result of misplaced priorities. The State Department is only now in its 2005 budget proposing to establish a central unit devoted exclusively to non-immigrant visa fraud, although this has been a problem probably for as long as NIVs have been issued. The low priority accorded to fraud is also reflected in the lack of meaningful consequences that fall on those who resort to fraud or misrepresentation in the application process. The regulations severely limit the kind of fraud that can be punished; for instance, lying about your identity, address, or previous applications is not considered important enough to be punished. Waivers that excuse previous immigration law transgressions are easily obtainable practically routine, for anyone with a relative here, according to a senior BCIS officer serving in a regional office. We cannot expect that this laxity toward fraud and deceit will be overlooked by terrorists any more than it is overlooked by the millions of others around the world who seek to enter the United States but cannot qualify under the law.
Finally, the biggest policy-related problem that threatens our ability to keep out terrorists is the fact that our immigration benefits programs are outrageously overbooked. For many years the United States has been offering immigration benefits to far more people than can be possibly accommodated within the limits of the law, which represents the number that we have decided we can absorb. For those with approved petitions, the wait for a green card or immigrant visa can be between three and 22 years. The BCIS is currently facing a backlog of more than five million applications, of which more than three million are for new immigrants, most of whom are already living here, many of whom have violated the law. Not only are these backlogs frustrating to legitimate applicants and their sponsors, they impede the effective screening of applicants, as officers are pressured to move cases through as quickly as possible. Even worse, by allowing people to remain here in limbo-like status, waiting years for approval and ignored if their application is turned down, the backlogs foster disrespect for the agency, its staff and the law itself.
The current administration sees there is a problem, and has asked Congress to approve spending an additional $160 million next year to address it. Unfortunately, the White House and some in Congress have also suggested adding a new so-called temporary guestworker program that could easily bring in another six to ten million applicants, either on top of or in front of the current backlog of cases.
The backlogs and waiting lists are not the result of agency incompetence or outmoded management techniques. They are the result of a series of deliberate policy choices: the IRCA amnesty, 245(i), and the LIFE Act. These programs brought millions of illegal aliens into the immigration queue, and undoubtedly contributed to the increases in new illegal immigration over the last decade. They also legalized terrorists, making it much easier for them to obtain their training overseas and go about the business of planning attacks on Americans. No staff increases, no web-based application process, no automated phone system, no imaginable amount of additional funding could possibly keep up with the crush of applicants that would arrive under the kind of new large-scale guestworker programs that have been proposed. Such a program would be as great a threat to our security as any of the other immigration policy weaknesses that have been discussed.
None of the problems I have touched on technology, personnel, or policy presents an insurmountable hurdle to the immigration agencies, all of which are blessed with smart and dedicated staff. What has been lacking is the will within the leadership to admit its mistakes and fundamentally change the way immigration work has been done.
Jessica Vaughan is a senior policy analyst at the Center for Immigration Studies and a former U.S. Foreign Service officer.