War at the Door

The Circle Line boat that ferries tourists to Ellis Island slows to a crawl as it passes the Statue of Liberty, giving passengers plenty of time to train their video cameras on that beloved beacon of bounty to those old huddled masses. The engine churns, the water sprays, and the looming green lady grows larger and larger. You can't help but provide your own private soundtrack. It hardly matters whether your imagination plays Irish ditties, Mexican danzones, Klezmer doynes, or Korean drums: sentiment gushes in, priming you for the Ellis Island museum, which invites you to envision yourself as a turn-of-the-last-century immigrant who has just disembarked from third-class steerage. And you do.

Though the exhibit doesn't shy away from chronicling the xenophobic currents in American history or the humiliations that greeted those streaming to these shores, it manages to avoid any references to recent debates over immigration or to the myriad snafus of the contemporary system. In an official introduction to the site, for instance, National Park guide K.J. Finley, dreadlocks bouncing from beneath her ranger hat, explains why you might have chosen to make the arduous journey to America in, say, 1905: "You're a peasant and you don't want to die a peasant," she says. "You need a job and you heard there were jobs here." Never once are you called an "economic migrant," which in today's derisive discourse would separate you from a more "legitimate" immigrant, someone fleeing political persecution. These days, new arrivals are slapped into the same categories as welfare recipients -- as genuinely oppressed or merely poor, "deserving" or "taking advantage."

Nonetheless, the inspectors who stood behind the high little desks in the great hall of Ellis Island were the first enforcers of America's abidingly ambivalent immigration policy. The forebears of today's thousands of Border Patrol agents, deportation officers, and other functionaries of the ever expanding Immigration and Naturalization Service (INS), those bespectacled, starch-collared men were charged with excluding from entry, first, Chinese people, and, more generally, as 1880s law put it, "any convict, lunatic, idiot or any person unable to take care of himself or herself without becoming a public charge."

Since then, the history of U.S. immigration policy can be read as the expansion of the list of those who must be refused: 1891 legislation added polygamists and "persons suffering from a loathsome or a dangerous contagious disease"; 1903 law added anarchists. By 1921, baldly racist forces, riding the crest of the Red Scare, won quota restrictions, limiting immigration from any country to 3 percent of its representation in the U.S. according to the 1910 census. Later versions of that act choked off immigration from Southern and Eastern Europe; immigration from Asia had already been barred. And the story of Ellis Island as a gateway to the Promised Land was over.

But the contradictions in American policy -- and the romantic way in which we insist on viewing that policy -- were not. From the day of the first post-Civil War law about whom to let in and how to do it, the agency charged with carrying out immigration policy has had a paradoxical task: to welcome strangers and to shun them. It must, on one hand, defend American jobs against cheap immigrant labor and, on the other, enable business to import low-wage workers; embrace the needy and enterprising and "protect" the nation's founding Anglo-Christian culture and values; succor the refugee and slam the door on the rogue.

This tension tugs at the core of America's founding ideals. Even as the Declaration of Independence listed among the many "Injuries and Usurpations" of the British king his obstruction of immigration to America, Benjamin Franklin panicked about an 18th-century influx of "Palatine Boors," and demanded to know why "Pennsylvania, founded by the English, [should] become a colony of Aliens, who will shortly be so numerous as to Germanize us instead of our Anglifying them?"

How from the tangle of clashing mandates can today's INS function coherently? By many accounts, it doesn't. Charged with facilitating immigration as well as containing it, the INS mirrors the schizophrenia of U.S. foreign policy, and many agree it is currently failing on both sides of its mission. And that's not only because it is, by the government's own report, a staggeringly inept bureaucracy that remains unaccountable to the public and even to the Congress that sets its agenda. It's the paradigmatic American agency, embodying the nagging question of the liberal state: Is government's role to provide services to people -- or to police them?

In the wake of September 11, the stakes for the INS's striking the right balance are as high as they have ever been. Today, one in five Americans is first generation or foreign born. Even as the INS must reinforce its shields against those seeking to cross the border to do the U.S. harm, it must preserve the openness to the rest of the world that has forged the nation's identity. But the blundering, bunker-minded agency may not be up to the task. This week's look at the INS launches a periodic series of articles that will follow the agency at this critical moment, examining practices in the context of shifting policy. The INS's new commissioner, James Ziglar, recently said that he liked his job because "it gives you the opportunity to shape the future of the country." Given that he reports directly to zero-tolerance attorney general John Ashcroft, it's fair to wonder: Will the glory of American promise celebrated at Ellis Island still be recognized in the kind of country the INS is shaping?

The INS has emphasized the enforcement side of its program at least since the 1950s, according to historian and University of California law professor Bill Ong Hing, pouring as much as three-quarters of its resources into such activities as border patrol, airport inspections, smuggling investigations, and detaining and deporting those lacking legal status. The INS has more armed agents than any other federal agency, including the Bureau of Prisons and the FBI. (And according to an Office of the Inspector General report last year, it couldn't find 539 of its weapons. At least six turned up after being used in crimes. Nor could the INS account for up to 81,000 other items -- among them vehicles, computers, and aircraft, valued at between $68.9 million and $107.6 million.)

In its 110-year history, the INS has been bounced around government departments like an unruly foster child. It resided in the Treasury Department until 1903, when it was transferred to Labor. In 1940, with growing wartime concern about immigration as a national threat�and Labor Secretary Frances Perkins uninterested in turning the Labor Department into a security agency -- it was moved to the Justice Department (doubling in size from 4000 to 8000 employees), where it has resided since, directly under the charge of the attorney general.

Today, more than 35,000 people work for the INS in a Byzantine structure of regional districts and Border Patrol sectors, presided over by directors in what some critics call alarmingly autonomous "fiefdoms." Indeed, the Inspector General report cited "a significant disconnect between what INS Headquarters believes is occurring in the field and what actually happens." California Congress member Zoe Lofgren says she's expressing bipartisan accord when she calls it "the worst performing agency in the government." Such incompetence has consistently been rewarded with mushrooming subsidies: The INS budget increased by 220 percent between 1993 and 2001.

September 11 brought many of the bungles and brutalities to the fore: on one hand, sieve-like screening processes that let visa applicants on terrorist-watch lists get through; on the other, a vast and arbitrary detention system that can "disappear" people who have committed no crime. But the agency has not been called to answer heightened demands for accountability. On the contrary, it has acquired more authority and more money as it has rushed to reinforce the border and to hunt down and detain visa scofflaws of Arab and Muslim descent. In his budget proposal early this month, President Bush requested a 14.5 percent increase, raising the INS allotment from $5.5 billion to $6.3 billion�almost all of it earmarked for enforcement measures.

Security needs notwithstanding, THE fortress fervor has not only led to abuses of civil rights, but also compounded the already catastrophic overload on the service side of the INS. As House Republican Darrell Issa has said, "The legal immigrant gets screwed by the failure of this organization." Between 1994 and 2000 the number of applications for green cards, citizenship, and other benefits increased nearly 50 percent to more than 6 million, overwhelming the agency. Already buckling under the weight of a backlog of 4 million applications, INS staff have clocked 70,000 hours of overtime for each pay period since September 11.

Lines wind around the block at offices where a naturalized citizen applies for a visa for his mother back in, say, Karachi, or an undergraduate requests an extension to finish a course of study, or a green-card holder files a change of name after getting married, or a longtime resident signs up for citizenship. They can wait six hours to turn in the paperwork -- and then for months, even years, for the result. By the government's own calculation, it can take almost four years for citizens to sponsor the immigration of a relative. And more likely than not, the clerks and officials they encounter will be rude, suspicious that even the most routine applicants have cheated their way into the country.

Those fleeing persecution and requesting asylum here may be hurt most by this miasma of mistrust. Thousands end up in detention -- even in high-security prisons -- while their claims crawl through the INS's overburdened courts. T.J. Mills, who served as an asylum officer from 1993 to 2000 (and now works as an attorney assisting immigrants), says he joined the INS to help those who sought refuge in America, but found that the climate was so hostile to applicants that he couldn't take it. "Most of the supervisors were convinced that 90 percent of asylum seekers were lying," he recalls. "It was absolutely an enforcement mentality. And now, since September 11, it's gotten worse."

Commissioner Ziglar, who stepped into the job just weeks before 9-11, recently announced plans to overcome the INS's existential crisis by splitting it into two distinct departments: service and enforcement. Such a division has been recommended for decades, and in addition to Ziglar's administrative scheme, various Congress members have produced legislative proposals for restructuring the agency. Though the plans differ in significant detail, Washington is enjoying what Migration Policy Institute codirector Demetrios Papademetriou calls the "New Immigration Consensus." But the overhaul won't be complete until the end of 2003�and there's no guarantee that the new arrangement won't starve the service side of funds, or that it can repair the management malfunctions.

The INS's justice system needs a similar shake-up if the reforms are going to be meaningful, according to the very judges who hear its cases. Immigration matters do not go through the country's criminal or civil system, but through the agency's own courts, where the attorney general is boss to both prosecutor and judge. He has the authority to override judges' discretion and even to reverse decisions. That, says Susan Martin, director of the Institute for the Study of International Migration, is like the police commissioner being able to overturn a verdict he doesn't like in a criminal case.

Hoping to capitalize on restructuring fever, the union representing the country's 220 immigration judges is calling for a complete split from the Justice Department. Meanwhile, Ashcroft recently announced plans that would curtail immigrants' rights even further, by limiting the scope of appeals they are allowed. With that, he would reduce the number of judges on the Board of Immigration Appeals -- a step that may be used to pick off particular judges Ashcroft regards as too liberal.

Then there's congress. No matter how well-structured the INS might become, it can't help but falter as long as it has to enforce extreme and often contradictory laws.

There's no better example than the huge increase in mandatory detentions called for in the 1996 package of draconian immigration reforms passed by the Gingrich Congress in the era of California's anti-immigrant Proposition 187. Like the Rockefeller drug laws in New York, these new rules boosted the swelling incarceration industry. With little preparation and less capacity, the INS quickly became the jailer of the country's most rapidly expanding prison population. Last year it detained more than 180,000 people, three times the number a decade ago. Little surprise that allegations of abuse abound.

Too bad lawmakers often don't understand how the principle they want to assert in legislation will affect actual people. Many Congress members have expressed amazement and horror when learning of cases like that of an elderly Cleveland woman who suddenly found herself in deportation proceedings (which were abandoned after public pressure) because of a couple of shoplifting convictions in the early 1960s; they simply hadn't reckoned the real-life implications of the 1996 tough-on-crime directives that "criminal aliens" be deported without judicial review.

Before September, momentum was building for "Fix '96," as the lobbying effort to roll back some of the excesses of the six-year-old legislation was called. That endeavor might not be dead now, but, says Susan Martin, "it's certainly in a coma."

Ashcroft is making the most of the moment. But like his shrinking the Board of Immigration Appeals, most of his streamlining proposals really work, says Papademetriou, "to accomplish some things that the conservative wing of the Republican Party has wanted to accomplish all along: to have as truncated a process to deport people as possible. It's returning to the spirit of the 1996 legislation."

But most of the country does not seem to share a renewed spirit for the restrictions of the mid '90s. Despite post-9-11 fears, and a generally supine acceptance of civil liberties restrictions in the name of fighting terrorism, an expected public backlash against immigrants has not been widely inflamed�despite efforts to ignite one by organizations like the Federation for American Immigration Reform, which issued a press release on September 12 blaming "open-border advocates" for the terrorist attacks. Rather, argued Frank Sharry of the National Immigration Forum at the group's annual conference earlier this month, there's a growing public understanding of immigrants' contributions to the cultures and economies of America, and thus less fertile ground for nativist initiatives. A Proposition 187 wouldn't have a prayer today. Indeed, the Senate two weeks ago voted to restore food stamps to legal immigrants who have been in the country five years.

When the Ellis Island ferry turns back toward the city, it heads straight into the harbor, providing a full frontal view of the wounded Manhattan skyline. The people packing the deck look up silently for a moment, then go back to snapping photos and chatting away in Mandarin, Spanish, Norwegian, and Czech. Asked where they come from, the tourists proudly reply: California, Nebraska, Tennessee, and Maine.

Alisa Solomon is a staff writer at the Village Voice