Congress should revise the procedures that allow U.S. Immigration and Naturalization Service officials to ban aliens on the spot, denying them entry to the United States for five years.
The new "expedited removal" procedures, in effect since April 1997, are a marked change from the past. This country must control its borders, and that isn't always easy in an age of jet travel and high mobility. But these procedures lack any formal appeals process or other channel for independent review of the border workers' decisions.
That wraps judge, jury and prosecutor into the same agency and its officials.
Such unilateral authority offends traditional American notions of fairness. In our tradition of due process, the official bringing the charge is not the same one who decides its validity. And although foreign nationals have no particular rights to get into the United States, this nation should respect its own traditions enough to devise a better system for dealing with border bans than the one built into the new law.
Buffalo immigration attorneys also condemn the treatment of clients by INS agents here. "We've had some clients who were treated terribly, treated like criminals," says Michael I. Serrotte, an attorney, "when their only wrongdoing was not having a full understanding of immigration law."
Winston Barrus, deputy director of the Buffalo INS district, presents the other side.
Only aliens suspected of trying to enter the United States by fraud, often to get jobs or return to jobs elsewhere, were actually barred for five years. While only INS personnel evaluated them, typically several levels of officials were involved. INS agents question the aliens, supervisors review the facts, and the decision to bar entry for five years can be made only by one of two high officers. Barrus, the deputy district director, is one.
Barrus concedes, however, that there "is no appeals process" for this procedure under the 1996 Illegal Immigration Reform and Immigrant Responsibility Act.
This is legislation in which Congress cracked down on what it considered, with some justification, porous border-entry procedures. One situation that needed addressing was entry at airports. What do you do with dozens of people with no papers who land at Kennedy every month from Hong Kong or Uganda? Provide separate judicial hearings for each in a couple of weeks or so?
The new law, Barrus says, "is going to allow us to restore integrity to the borders. I think everybody wants that."
Certainly. But the 1996 law went too far with the power over border bans invested solely in the INS.
And it is the same legislation responsible for the outrageous requirement, set to take effect in September, that would choke U.S.-Canadian border points by requiring Canadian citizens to prove their identities every time they enter and leave this country.
Washington doesn't understand the ease with which Americans and Canadians routinely cross back and forth over the four Niagara Frontier bridges. It knows nothing of this region's attempt to market itself as a single economic entity with elements on both sides of the border.
In other parts of the nation, the five-year border bans have caught some Canadian citizens accustomed to going back and forth across the border with ease. In some cases, there are charges of misunderstandings. The situation doesn't play well with our Canadian neighbors.
Barrus notes that at the Niagara Frontier's four international bridges, only 200 aliens have been banned for the five-year period since the law took effect a year ago. Many thousands of others have been refused entry to the United States, but not banned.
The INS must enforce the laws that Congress enacts, he emphasizes, and this provision "has been used sparingly."
Even so, the INS and its agents are human. The more cases they must review, the greater the chance for mistakes. Nobody is perfect. Misjudgments will be made, if they haven't been already.
The defect in the 1996 law is that it contains no provision to even review those possible misjudgments -- much less correct them.