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Immigration reform: foundering in a sea of vacillation

THE Immigration Reform and Control Act of 1986, passed Oct. 17 by a reluctant Congress, is a deep disappointment to me and many of my colleagues in the Immigration and Naturalization Service (INS). The bill grafts easy amnesties to potentially millions of illegal aliens (including agricultural workers and others claiming to have lived here since 1981) who can then petition for the immigration of relatives onto a demoralized immigration system. The illusion of ``control'' is fostered by the addition of more Border Patrol agents and money and an important, but severely hobbled, new law providing civil fines against employers who hire illegals. Further confusing the message, Congress opened loopholes such as requiring search warrants for agricultural fields, allowing visa petitions by fathers of illegitimate children, and making certain deportations harder while creating thousands of extra immigrant visas for certain Europeans and others.

The bill is fatally flawed by its utter failure to define the public interest in controlling immigration. A vocal minority of congressmen, businessmen, ethnic lobbyists, immigration lawyers, and opinionmakers still feels that it is neither moral nor practical to assert America's sovereignty to police its borders and cities. They brazenly assert that larger numbers of immigrants are beneficial. Congress should have considered the fate of the many tough enforcement provisions still in the present Immigration Act of 1952. The special interests that continue to profit from open immigration vitiated the 1952 act, and are not addressed in this bill, while the ``push'' factors of poverty, overpopulation, and chaos abroad more than ever energize aliens to come to the US.

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Out of millions of illegal aliens, there are few deportations (only 804 from the New York City immigration office in fiscal 1985) or interior arrests. While the Border Patrol now apprehends over 1.5 million illegals annually, the result is a ritual bus ride to the border without penalty, whence they can try again that very night. Because of endless appeals, it is virtually impossible to deport anyone who seriously contests his case. Despite almost any number of violations of the immigration laws, an illegal who can minimally qualify for any immigrant category (e.g., by marrying a United States citizen even in the middle of deportation proceedings), usually gains permanent status right away, because the law provides for no systematic administrative penalties, and Immigration Service lacks the zeal to apply its discretionary powers.

The top priority given INS adjudicators is reducing backlogs, not ferreting out the many fraudulent claims. Outside investigations are routinely denied because of lack of manpower. The bill perpetuates this pernicious practice in Title I, Part B, Sec. 111(a) by dichotomizing the service into ``two essential elements'' -- ``border patrol and other inspection and enforcement activities'' versus ``examinations [adjudications] and other service activities.'' Rewarding persistent lawbreakers mundanely or by special amnesties will subvert any immigration law, no matter how rational and just.

The bill's provisions of employer sanctions were to be the silver lining, but I am not sanguine. It is little known that about a dozen states (including Massachusetts and California) have sanction laws, and these have not been enforced by the states, nor has this failure been protested or publicized by the Immigration Service. The service will need multiples of its scant 700 interior investigators and a new aggressive attitude to check employers. If illegal aliens are found, it will have to prove that the employer ``knowingly'' hired them or else did not make a record of the cursory, required checks.

Presentation by illegals at hiring of easily obtained or counterfeited social security cards, driver's licenses, and birth certificates, etc., provides the employer with an affirmative defense. He is not required to establish the validity of the documents or to ask for additional evidence. The cited employer is entitled to a hearing before an administrative law judge, administrative appellate review, and finally, appeal to the US Court of Appeals. Inexplicably, all employees hired before the effective date of sanctions are universally ``grandfathered'' in place and immune from checks.

Until Congress can convincingly articulate why uncontrolled immigration is harmful to the public interest, aliens will continue to indulge their rational but selfish interests in gaining entry to the US, and their domestic apologists will, by propaganda and litigation, create gaping loopholes into paper enforcement provisions. The Immigration Service by itself has not been and cannot be an effective bulwark without congressional and presidential mandate, real resources, and galvanized public opinion.

Joel S. Dorfman is a US immigration examiner in Boston. The opinions expressed do not necessarily represent those of the Immigration Service.

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