Reprinted by permission of Transaction Publishers. "Alien Smuggling: Elements of the Problem and the U.S. Response," by Jonathan M. Winer, TRENDS IN ORGANIZED CRIME, Spring 1998

Nature of Alien Smuggling

The push and pull of migration has always been with us, driven by political, social, and economic factors as old as human history. One of my grandfathers came to the United States from Kiev as an infant, hidden from immigration officials in a potato sack. To this day, the affluence of the United States remains a tremendous draw for people all over the world seeking opportunity. But there is a difference between the Ellis Island "give me your huddled masses" immigration of the past and today's alien smuggling epidemic. That difference is the evolution of illegal migration into a business, the smuggling of persons, that simultaneously violates the human rights of the smuggled and corrupts basic governmental institutions wherever they transit.

How big a problem is trafficking in illegal migrants? Our estimates are that each year easily several hundred thousand illegal migrants are being moved by international criminal smuggling syndicates from their countries of origin to Western Europe and the United States alone.

How much money is involved? The United Nations estimates that Chinese smugglers alone earn up to $3.5 billion annually. Nearly standard fees for various nationalities range from a few hundred dollars for Central Americans up to $35,000 or $40,000 for Chinese. A down payment is normally made before departure with the remainder due to the smugglers upon completion of the journey. Funds come primarily from persons in developed countries -- either relatives or prospective employers -- and repayment is made by the migrant by working, often in sweatshop conditions, from criminal activities, or on some occasions the migrants may be held for ransom by the criminal gangs.

Trafficking organizations operate with near impunity, as alien smuggling is a crime in only a few recipient countries and penalties are minimal. In Central America, alien smugglers operate openly since only Honduras and Panama have an antismuggling law. The same is often true in Central and Eastern Europe and the New Independent States. These countries understand the need to improve training, enact antismuggling legislation or amend existing statutes, and to cooperate with other governments, especially destination countries, in order to stem the tide of illegal migration to and through their lands. In some areas (Western Europe and Southeast Asia), the same criminal organizations may traffic in migrants and narcotics. In other areas, alien smugglers avoid criminal activities, such as drug trafficking, for which they would risk prosecution and stiff penalties.

Alien smuggling is made possible by staggering levels of official corruption. In Belize, the director and deputy director of Immigration were arrested for corruption involving alien smuggling; immigration directors in Guatemala and the Dominican Republic were replaced for the same reason. Even the United States is not immune from corruption. Our most senior immigration official in Central America, Jerry Stuchiner, pled guilty in the summer of 1996 to charges in connection with a passport and visa scheme he was working between Honduras and Hong Kong.

Poorly trained and paid immigration inspectors and border guards are easily bribed to assist smuggled aliens who are "only passing through." As alien smuggling organizations are ethnically based, migrants then disappear into ethnic communities. Some law enforcement authorities are reluctant to dedicate resources to alien smuggling cases because they perceive alien smuggling as a victimless crime. Unfortunately, the reality is that migrants are often subjected to inhumane or dangerous treatment and, in the case of Chinese, to extreme forms of violence. Migrants die from suffocation, abandonment, accidents, or brutality by smugglers.

Globally, the pipeline today stretches from Asia, across Europe, and through Central America and the Caribbean to the United States. It involves large numbers of Chinese, South Asians, and Latin Americans, as well as persons from countries disrupted by natural disasters, political turmoil, and wars. The pipeline is under the control of smugglers who vary by geographic area and national identity, and includes both individual operators and sophisticated international smuggling rings. Migrants are passed along a chain that often involves a number of smugglers, safe houses, transit points, and varied means of travel. For some, the trip can be accomplished quickly by commercial air. For those with limited funds, the journey can take years of hardship and danger.

Examples of the Trade

Need hard currency? Cuba does. Maybe that is why Cuban smuggling through commercial air flights from Central and South American cities continues to increase. U.S. immigration and consular officials report that the Cubans are using photo substituted passports with valid U.S. visas from such countries as Venezuela, El Salvador, Costa Rica, Panama, Peru, Guatemala, Chile, and the Dominican Republic.

Any kind of hard currency will do if you are willing to take the ancient trade routes used by Ghenghis Khan and his hordes. Hardy and desperate, Pakistani migrants transit Western China, Kazakstan, and Tashkent on their way to Europe on routes also used to smuggle narcotics and stolen cars facilitated by corrupt, but not terribly expensive, officials every step of the way.

In historic downtown Prague, there is a certain Chinese restaurant with only eight tables, indifferent food, and few repeat patrons. But it is so successful, it employs over 800 persons, none of whom are Czech, with new Chinese employees signing on every week, on their way to culinary adventures further west.

In Warsaw, an athletic organization called the Achilles Track Club, sends supposedly disabled athletes to attend sports events in the United States and Canada: amputees and diabetics arrive in groups of four, seven, and eight, and then disappear, leaving behind a trail of phony addresses.

In Vladivostok, Russia, there are literally tens of thousands of Chinese migrants awaiting processing for Moscow on the way to Western Europe and North America. Russian police say the Chinese population there fears its own gangs far more than it does the Russian ones as the Russians merely rob, while the Chinese also torture, persecute, and take revenge on those who do not have the money to pay for their onward journey. Meanwhile, some 40,000 South Asians, predominately Indians, are in Russia, awaiting transportation to the United States via routes through Scandinavia and Western Europe.

Exotic tortures of illegal migrants are not limited to those unfortunates who remain adrift in such distant lands. Last year, in Seattle, alien smugglers kidnapped three minor children who had been smuggled previously into the United States and demanded money from their parents in China. Simultaneously, a Chinese businessman and two women in New York were kidnapped by the same criminal organizations for ransom. The Seattle kidnappings ended with the freeing of the children, but not before the young girl was repeatedly raped. The New York extortions ended with the businessman shot in the head but recovering; one woman found hanged and with a finger cut off; and the other woman found alive, minus several fingers, and also sexually assaulted.

This is a nasty trade, indeed, enforced by vicious people. Of special importance is the marked increase in Chinese alien smuggling during the past years. From a trickle of persons arriving on commercial airlines, it has become a flood of undocumented migrants arriving in fishing boats and rusting ocean freighters. Since January 1993, the United States Coast Guard has intercepted eleven ships carrying over 2,100 Chinese illegal migrants. Recently, when a U.S. Coast Guard vessel boarded a Chinese migrant ship carrying hundreds of illegals, the Taiwanese crew began a mutiny, seeking to overpower the U.S. officials with physical force, spitting, and biting. Such enforcers have been known to throw migrants overboard to the sharks to quell any complaints from their human cargo.

Targeting the Elements

The following are the key elements in the alien smuggling business:

-- People who are willing to give up everything to move to another country illegally. Such people will always be with us. Can you target them? You can try, but it is not likely to be very efficient or very effective.

-- People who recruit illegal migrants to travel halfway around the world. Can you target them? Only if the source country is willing to cooperate. Who are the sources? Most importantly, in China, Pakistan, and India, the problem is twofold: first, one of political will; second, one of capability. Which of these countries has a central government that actually controls the major ports from which migrants leave?

-- Corrupt officials in transit countries. Yes, they will always be with us. But, can you target them? Yes, through diplomatic, intelligence, and law enforcement actions, private and public. Corrupt officials move migrants. They provide passports, visas, citizenship, and safe transit. Hollywood, for once, had it right in Casablanca. Claude Rains was willing to move people from Casablanca, or not, on the basis of hard cold cash, and of political expediency. In most countries, a smuggler's payoff for passage of one small cluster of migrants would quadruple a border agent's monthly wage. Asset forfeiture laws can provide resources for governments to pay their officials by levying directly the criminal's resources, eliminating the criminal's previous role as the paymaster.

-- Weak institutions in transit countries. Can you target them? Yes. Assistance and exchange programs can build capability. This is especially true when countries begin to feel themselves vulnerable to injury as a result of transiting migrants. Today an increasing number of transit countries find they are becoming host countries to thousands who simply stop there, and impose a real burden on them. They want better laws to protect themselves, and they want to find ways to keep the illegal aliens out of their countries. Institution building against alien smuggling is not only possible, but essential.

-- Counterfeit documents. Can you target them? Absolutely. The destination countries can and should make their own document requirements state-of-the-art, and then export those standards everywhere, providing such technical support as transit countries require to make it workable, including tough controls on passport issuance.

-- Ports of entry in transit countries. Can you target them? Again, no question. Part of this is targeting the corruption problem. In the Dominican Republic under former President Ballaguer, whenever the United States expressed concern about alien smuggling problems at its seven major airports, we found the situation improved, at least for a few months. Similarly, documented complaints by the U.S. Embassy and State Department ended a people-smuggling operation involving Cubana Airlines and Belize last year. Corruption is not the only problem, of course. Even governments with officials of goodwill may not have very developed security regimens at ports. They need to receive training and assistance in implementing state-of-the-art airport and seaport security of the kind that U.S. Customs and Immigration have developed here.

-- Permissive legal systems in transit countries. Can you target them? Yes, and you can change them. Criminalizing alien smuggling with serious penalties attached is an essential element of combating the trade. Because the aliens hurt the countries they transit, transit countries are increasingly willing to criminalize, especially if the United States is willing to provide aid to those who do.

-- Boats at sea carrying migrants. Can you target them? Yes. We do. But we need an international system for holding the migrants when we stop the boats, and to ensure the punishment of the smugglers back home. Recently we advised Taiwan that we would consider sending Taiwanese ship captains back to the People's Republic for processing, since previously Taiwan had simply released them upon return.

-- Weak border controls at destination countries. Ultimately, every destination country has to strengthen its own capabilities to combat the trade. We cannot have laws that encourage illegal aliens to think everything will work out when they arrive.

-- Inadequate international enforcement efforts against the bad guys. Because the alien smugglers operate transnationally, it is essential to take them out transnationally, not limiting enforcement to stopping those at the end of the pipeline. This requires gathering intelligence and disrupting the organizations and their infrastructure through law enforcement and interdiction operations, and when appropriate, through diplomatic demarche, and public stigmatization of those who refuse to cooperate.

Those are the conceptual elements. How have we actually applied them?

Clinton Administration Initiatives

On June 18,1993, President Clinton announced an action plan to combat alien smuggling. The plan called for increased diplomatic and law enforcement efforts, measures to interdict smuggling vessels, and new procedures for processing asylum claims and returning economic migrants. At the same time, the President reaffirmed our commitment to promote legal immigration and protect bonafide refugees. Since this directive, the number of Chinese vessels interdicted decreased from seven, in calendar year 1993 to three in 1995.

Under the President's plan, the Immigration Service began detaining illegal aliens and expediting adjudication of asylum claims. As many as 1,400 illegal Chinese migrants were initially placed in U.S. detention facilities. Currently, there are over 600 in INS detention. Crews and "snakeheads" were also jailed and their vessels confiscated. The State Department and the Immigration and Naturalization Service held discussions with the Chinese government which has accepted repatriation of its citizens and cracked down on smugglers.

In April 1995, the President sent to Congress the Immigration Enforcement Improvements Act of 1995 to correct abuses of our immigration and asylum procedures. The proposed Act provided for "special exclusion" and increased criminal penalties for alien smuggling. The administration's proposed special exclusion would have allowed the Attorney General to order an alien excluded and deported without a hearing before an immigration judge.

The proposed "special exclusion" would assist in the prompt repatriation of the migrants. The ability to bring intercepted vessels directly to the United States, quickly process those aboard, and return those without bonafide asylum by direct flight would achieve a number of goals in combating alien smuggling. Such an approach would save money, be more humane, reduce the risk of injuries, allow Coast Guard ships to return quickly to duty, and send a strong signal to smugglers and their potential clients. The alien smuggling provisions contained in the administration's bill are essential if we are to deter alien smuggling and stop the trafficking in human misery.

Although "special exclusion" has been passed as part of the Comprehensive Antiterrorism Act of 1995 and was scheduled to have gone into effect on November 1, 1996, the recently enacted Immigration Law, Public Law 104-208 delayed the effect date for six months. "Special exclusion" differs from the administration's version, in that it does not require a declaration by the Attorney General to exercise its authority; it is always in effect, unless the alien can prove he/she has been in the United States for more than two years. The right of review is limited to the immigration judge in civil proceeding and a very narrow writ of habeas corpus in judicial proceeding. Additionally, the Comprehensive Antiterrorism Act of 1995 changed the definition of "entry." Currently, persons who "enter without inspections" (EWI) are placed into deportation proceedings. Under the Antiterrorism bill, they would be placed into exclusion, thus shifting the burden of proof as to why an alien should remain in the United States from the government, as in deportation proceeding, to the alien. Only those persons who arrive at a port-of-entry and are admitted by an immigration officer would be placed in deportation proceedings if they violated the provisions of their visa after admission.

While these actions are important, they are only initial steps toward dealing with the problem. As President Clinton has said, "We will not surrender our borders to those who wish to exploit our history of compassion and justice. We cannot tolerate those who traffic in human cargo."

In February 1995, the President instructed the Departments of State and Justice, in cooperation with other relevant agencies, to establish a new structure to coordinate administration action to deter alien smuggling. In response, the State Department and the Immigration and Naturalization Service, representing Justice, convened an interagency working group or IWG to study the problem and provide recommendations. The report on "Deterring Alien Smuggling" was submitted on November 9, 1995. The working group determined that alien smuggling must be dealt with at its source, as well as in those transit countries through which migrants are moved to the United States. It recommended programs to disrupt global smuggling by increasing the awareness of foreign governments and the public of alien smuggling and its dangers. The United States should take action against foreign officials known to be implicated in alien smuggling by revoking or denying their visas. The group believes the basis for effective international action is the adoption of laws by all countries to make alien smuggling a crime. A model antismuggling legislative package was written, translated into Spanish, and presented to most Caribbean and South American countries and to all Central American nations.

The working group recommended that additional human resources be devoted to combating alien smuggling by expanding our overseas enforcement capability. The handling of information regarding frequently used alien smuggling travel routes, known or suspected smugglers, and fraudulent documents vendors must be improved. This information should be shared with affected governments on a controlled basis. Training should be increased to reduce corruption and professionalize border guards and inspections officers, coupled with the expanded distribution of U.S. printed materials on fraudulent documents to law enforcement officials. As part of the forty directives to combat transnational crime, G-7 nations have declared alien smuggling a crime that must be addressed by member states. Indeed, the topic is now being taken up at the Lyon Group created by the P-8 to develop an implementation plan for P-8 members to use jointly against alien smuggling and document fraud.

Public stigmatization is another important part of the strategy. Those who traffic in persons -- individuals, organizations, or even governments as a whole -- need to know there will be consequences for them if they facilitate alien smuggling. Sunlight is still the best disinfectant for governments. Public exposure works against corruption. For individuals, denial of visas to those who organized alien smuggling schemes can be a profound weapon, as the United States demonstrated in 1995, when we denied the visa of Panama's former immigration director, Tony Dominguez, sending a message that when we can document corruption, we are willing to take action even against those who are not engaging in corrupt acts within our borders.

In developing a comprehensive plan for disrupting global smuggling, the United States will build upon the IWG recommendations. We will also take advantage of the fact that recent elections have brought into power governments which appear intent on cracking down on alien smuggling. The new immigration Director in Panama has already had success in disrupting alien smuggling operation in his country. Guatemala's new immigration director has expressed a desire to enact antismuggling legislation. Significantly, at the same time, the Guatemalan Government has announced a major anticorruption campaign, firing a number of senior military officials amid a wide-ranging probe of alien smuggling, car theft, drug trafficking, money laundering, and kidnaping allegedly involving Guatemalan officials in a number of ministries.

The United States alone cannot stop the flow of illegal migration. The criminal networks need to be combated by networks of government agencies that function to enable them to come together as quickly and efficiently as the criminals. That means an unprecedented degree of international bilateral cooperation, extending multilaterally from government to government in a series of interoperating links. The United States cannot protect its citizens and its territory without simultaneously changing the environments in the transit countries.

Eventually, we need to develop more effective strategies for the source countries as well. But as Billie Holliday used to sing, "the difficult we will do right now, the impossible will take a little while."

Discussion

The discussion is centered around: 1) means of strengthening law enforcement efforts; 2) U.S. interagency cooperation; and 3) cooperation between the United States and its international partners.

An academic suggested that illegal migrants (excluding illegal Mexican immigration) to the United States are a small fraction of the United States' annual migrant influx, and questioned the dedication of huge resources to counter alien smuggling.

A government official maintained that alien smugglers are villains who engage in murder, torture, and a variety of other serious and violent criminal activities in addition to alien smuggling. Furthermore, illegal immigrants are often forced to pay alien smugglers for their passage by working in sweatshops or by engaging in crime. Moreover, were the United States to take a more "hands-off" approach, the problem would likely balloon. The official argued that the cost of U.S. assistance to foreign countries for anti-alien smuggling efforts is relatively small -- perhaps $20 million per year is currently spent on anti-alien smuggling programs. However, this government official maintained that to be effective that figure would have to be approximately $100 million.

A number of participants argued that if the United States makes alien smuggling a priority, it should treat it as a priority when it comes to budget and policy matters.

Strengthening Law Enforcement

A U.S. official stated that for counter-organized crime efforts to succeed, law enforcement agencies need to acquire respect from other government agencies and to network with officials from other agencies. Without these actions, counter-organized crime will remain a low government priority no matter how important the law enforcement community feels the issue to be.

Another official noted that law enforcement has traditionally been disaggregated in American society; e.g., fraud is dealt with by one group of officials, drug offenses by a second group, homicide by a third, and so on. He argued that this piecemeal approach to crime needs to give way to a comprehensive, integrated approach both within the United States and internationally.

Another participant argued that in the current U.S. political environment, free trade arguments dominate. It is virtually impossible to suggest that other priorities be linked to trade. Similarly, it is politically taboo to suggest that free trade has anything but beneficial effects for the United States in all instances. While nongovernmental agencies can push for changes in our free trade and associated policies, it is difficult or impossible for government officials, especially in law enforcement, to argue this case. In the future, a serious, high-level, question is going to be finking or conditioning free trade to concerns such as law enforcement.

As a specific policy instrument, one law enforcement official suggested preventing a criminal's family from being able to come to the United States to take advantage of the American medical and educational systems. He argued that this would be more effective than simply denying or revoking a criminal's visa. Another suggested that this would require finding a nexus between the family member and criminal activity. For example, some major drug traffickers send their children to the United States to receive training in banking. The children then return to their home country and work for their parents, corrupting the banking industry. Discovering such activities would allow U.S. agencies to prevent family members from entering the United States.

U.S.-Allied Cooperation

Discussion initially focused on the general view was that the United States receives "decent" cooperation from the Russians on particular organized crime cases. However, several participants noted that Russian cooperation is limited by corrupt officials and institutions, as well as a lack of regulatory, enforcement, and investigative capabilities. Alien smuggling has not been a priority in U.S.-Russian cooperative efforts.

A law enforcement official noted that, in general, when the United States elicits help from foreign countries on counter-organized crime matters, they generally provide the minimum cooperation possible. Yet, the United States praises them for their help and cooperation. In some cases, foreign governments appear to have obstructed rather than cooperated; e.g., the United States has had its undercover operations abroad exposed by other governments who then apologize for the "accidental" disclosure. This individual wondered whether a list of countries that truly cooperate with us on a broad range of law enforcement issues could be developed as a diplomatic device to elicit cooperation. Such a list could not be narrow (e.g., limited in consideration to counter-narcotics matters) or else it would be a de facto policy critique and would be counterproductive in terms of motivating foreign countries to cooperate.

A former government official pointed out that U.S. allies, with the exception of Britain, have approached the Samper government in Colombia to cast the United States as a regional bully and all-around bad guy. Another participant noted that a past problem in allied coordination has been disseminating information to other governments. The Samper case exemplifies the problems of informing and persuading other governments. He said that most European governments know about the Samper case primarily from media accounts. The United States has not done a good job informing its allies of what it knows about organized crime groups and major organized crime related problems. Further, even though some efforts have been made to reach nongovernmental audiences, more can be done.

An official suggested that while the United States may be having problems getting Europeans to understand American views on the alien smuggling problem, they are aware of global crime in other spheres. This person suggests that part of the international cooperation problem is that some of the major crime problems are quite bilateral, e.g., activities emanating from Mexico are largely directed against the United States. Several U.S. officials agreed that the United States has international cooperation problems and that U.S. embassies will not push some issues with some other states for fear of endangering or straining U.S. relations.

An international convention was suggested to coordinate counter-alien smuggling programs and to reduce the political pressure the United States encounters when it unilaterally pushes for enforcement measures. Failing an international convention, the United States should endeavor to construct a network of bilateral agreements and treaties.

One participant noted that one of the problems the United States faces in mustering international cooperation is that the United States is one of the few states to use moral suasion as an instrument of foreign policy. Other states view this as self-righteous and hypocritical. A former government official noted that the United States had sent a large delegation to China to discuss the alien smuggling problem. This official felt that the central government was unable effectively to control organized criminal activities in southern China. Both the southern (Fujian) and central (Beijing) Chinese governments lacked the political will, not merely the institutional capacity. Instead, the government in Fujian accused the United States of enticing Chinese citizens to come to the United States and of not issuing enough visas to meet fairly the southern Chinese demand. Southern officials balked when informed that they were getting more visas than any other area, and were very uncooperative on the alien smuggling and drug smuggling issues in general. This official and others thought that to some degree Chinese behavior can be influenced by negative publicity, and that this instrument should be used by the United States to shape Chinese actions.

An official noted that U.S. institution-building efforts in Thailand have been good. However, future successes depend on local, particular conditions. Success in Thailand does not mean that efforts to carry out similar institution-building in southern China would be successful. To secure Chinese cooperation the United States needs a firmer or "tougher" general line of foreign policy towards China.

A Congressional specialist pointed out that the Chinese can counter U.S. efforts to pressure them. For example, they could allow many more people to migrate to the United States, or they could refuse to accept Chinese nationals deported from the United States. In general, the United States has a broad and continuing interest in good relations with China, and this general interest complicates efforts to coerce China on specific organized crime matters. A law enforcement official argued that the Chinese understand the United States' domestic political and policy pressure points and are taking advantage of them to manipulate U.S. policy towards China. A government official asserted that the United States currently has the means, policies, and laws necessary to deal with foreign governments on counter-organized crime issues and argued that, at a minimum, the United States should have a public discussion of Chinas non-cooperation in this area. Another official noted that major political players, such as the Department of State, are not going to initiate such a public discussion on their own.

Tying this discussion of China with issues of international cooperation, it was noted that the lack of Western foreign policy coordination towards China ends up making the United States pay the political costs for trying to pressure the Chinese.

Inter-Agency Cooperation

An official stated that awareness of international organized crime as a national security threat within the policy community is growing, but noted that many in government and academia have yet to be educated on the threat. Threat awareness in government is exemplified, e.g., by the new White House interagency group under PDD-42 that has been formed to try and coordinate government policy. The United States has taken steps to integrate its policies and is seeking to help other countries integrate theirs.

Another official stated that intelligence and law enforcement officials are working well together and that this cooperative relationship has been and continues to be helpful in efforts to counter organized crime. This official warned of the danger that new, inept managers might wreck the interagency coordination and cooperation that have been established. Several participants stated that the intelligence community, Department of State, and other agencies are more coordinated and cooperative in recent years, especially at higher levels. Whether this coordination has been institutionalized or whether it is personality-dependent is yet to be determined.

One official familiar with the interagency workings noted that certain officials have been instrumental in constructing interagency cooperation and that weak leadership in the future might well jeopardize the inroads that have been made. Certain strong law enforcement officials have been very beneficial to the community in terms of raising law enforcement's prestige and making other officials aware of law enforcement's prospective contributions to policy formulation and policy debates. Another official thought that a change in leadership could damage interagency cooperation to some degree, but argued that there has been a certain amount of institutionalization of interagency cooperation that has occurred at lower levels and that this institutionalization would likely endure changes in agency leadership. A Congressional specialist remarked that government agencies and offices are not all working together as well as they could be and stated that certain elements of the Congress are thinking of how to impose greater coordination on the executive branch.

Another official argued that coordination "has to start at home." Single-agency umbrella working groups, such as one that brings together the various law enforcement officials in the Justice Department, have the same coordinating function that interagency groups do. These umbrella groups should meet before interagency group meetings so that interagency meetings would run more smoothly and have a tighter, more focused agenda. This discussant noted that the coordinator of interagency working groups is designated on a case by case basis, but often falls, de facto, to the participant from the NSC.

Jonathan M. Winer is Deputy Assistant Secretary of State.

(c) 1997 National Strategy Information Center.