The INS Is Misunderstood and Wrongly Accused

In a recent survey of government agencies, the Immigration and Naturalization Service finished dead last. Few INS observers were surprised. The agency has for some time been perceived as floundering, incompetent and inept.

Most recently, the agency has been under heavy criticism for its handling of the Elian Gonzalez case. A closer examination of that situation, however, reveals that things are not as simple as many such criticisms would suggest.

On Jan. 5, 2000, INS officials determined that 6-year-old Elian belonged with his father and announced that he would be returned to Cuba by Jan. 14. This decision was in accordance with U.S. and international law, both of which require that a child taken without permission be returned to his or her “habitual” country of residence. However, before the INS could carry out its decision, attorneys for the boy’s relatives filed suit in federal court charging INS officials with violating Elian’s constitutional rights. The appellate court has set May 8 for oral arguments.

In the meantime, some members of Congress began considering a bill that would remove the case from INS jurisdiction and put it in the hands of the family courts of Miami, which are likely to leave Elian in the custody of his U.S. relatives. And several legislators have introduced private immigration bills that would make Elian a U.S. citizen.

These legal and congressional actions, which are expected to keep the boy in the U.S. longer, are not the result of the agency’s actions or decisions. They are constraints imposed on it from the outside. Despite that fact, observers whose perception is that the Elian Gonzalez case is not being properly handled are far more likely to blame the INS than Congress or the courts.

Thus, David Abraham, a professor of immigration law at the University of Miami, has written that the INS “continues to show a weakness of backbone in allowing the case to drag on.” And a prominent Miami immigration attorney, Ira Kurzban, has speculated that U.S. Atty. Gen. Janet Reno simply is stalling the case so as to avoid responsibility.

The implicit assumption behind such criticisms is that since the INS is the agency primarily responsible for immigration matters, it deserves the brunt of the blame when immigration matters fail to be handled efficiently or appropriately.

This sort of reasoning fails to take into account the crucial point that the power of the INS to influence immigration issues in cases such as this are extremely limited. Elian Gonzalez’s continued presence in this country has little to do with the INS, and much to do with the actions of lawyers and, potentially, of the House of Representatives.

The problem with this perception isn’t just that it is unfair to the agency. The more serious consequence is that it encourages those attempting to improve the immigration situation to focus on reform proposals that simply won’t do any good. Suggested reforms almost always focus on internal changes; they suggest that restructuring the agency--perhaps splitting it up, perhaps dismantling it altogether--will somehow make a difference. It won’t if the “new” agency finds itself in the same position that the INS occupies now. The only thing that will change the situation is to give the INS more authority and autonomy and decrease the extent to which it is buffeted by external influences.

In 1904, President Theodore Roosevelt proclaimed, “We cannot have too much immigration of the right kind and we should have none at all of the wrong kind.” Few would disagree with this statement. But cases like that of Elian Gonzalez not only demonstrate how difficult it can be to tell “the right kind” of immigration from “the wrong kind,” they also demonstrate that even when the difference is clear, the power of the INS to do anything about it is extremely limited.