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Immigration in a Homeland Security Regime
Click for a Printable Version of this Article By Stanley Mailman and Stephen Yale-Loehr**
Authorizing the largest reorganization of the U.S. government in over 50 years, late last month President Bush signed into law the Homeland Security Act of 2002 (Pub. L. No. 107-296, 116 Stat. 2135), thereby creating the new Department of Homeland Security (DHS). To be swallowed by that behemoth are more than twenty federal agencies, including the Immigration and Naturalization Service (INS or Service). And there, the INS will be split into two bureaus. This article summarizes the immigration provisions of the new law and speculates on what they will mean for immigration enforcement and services. Immigration History Over the last 120 years, the immigration function has moved from one federal agency to another, depending on how immigration was perceived at the time. See generally http://www.ins.gov/graphics/aboutins/history/articles/oview.htm (last visited Dec. 10, 2002). Until the 1870s there were no federal laws restricting immigration (and hence no immigration agency), since the goal during most of that period was to encourage immigrants to settle this vast continent. As the number of immigrants rose in the 1880s and economic conditions in some areas worsened, immigration restrictions emerged. In the 1880s, state boards or commissions enforced immigration law with direction from U.S. Treasury Department officials. U.S. Customs officials at each port of entry collected a “head tax” from immigrants, while “Chinese Inspectors” enforced the Chinese Exclusion Act. The Immigration Act of 1891 created an Office of the Superintendent of Immigration within the Treasury Department. The Superintendent oversaw a new corps of U.S. Immigrant Inspectors stationed at principal ports of entry. In 1903, because most immigration laws of the time sought to protect U.S. workers and wages, Congress transferred the immigration function from the Treasury Department to the Labor Department. In 1940, because of the threat of war in Europe and a growing perception of immigration as a national security rather than an economic issue, President Roosevelt moved the immigration function from the Labor Department to the Justice Department. Now, with the terrorist attacks of September 11, 2001 still fresh on our minds and homeland security a paramount concern, immigration is moving to the new DHS. This brief summary should not end without mentioning the severe criticism with which the INS has been buffeted in recent years and the many suggestions made to reform the INS. Well before September 11, members of Congress sought to dismantle and/or reorganize the INS. INS shortcomings were so rife and so well documented by reports of the General Accounting Office and in congressional hearings, that the move to reshuffle INS functions had built up a considerable head of steam by the time President Bush was elected. The terrorist attacks further exposed serious weaknesses in the INS’s ability to perform its service and enforcement functions. Whether the INS would have survived even absent enactment of the DHS is an open question. Immigration Functions in the Department of Homeland Security The DHS has four main divisions: Border and Transportation Security; Information Analysis and Infrastructure Protection; Emergency Preparedness and Response; and Science and Technology. There is also a fifth box for a Bureau of Citizenship and Immigration Services (BCIS). Most immigration enforcement functions will be in a Bureau of Border Security (BBS) within the Border and Transportation Security (BTS) division. The BBS will house the following immigration functions: border patrol, detention and removal, inspections, intelligence, and investigations. The BBS will also administer the Student and Exchange Visitor Information System (SEVIS), a computerized system to track nonimmigrant students and exchange visitors that is supposed to be up and running by January 30, 2003. The BBS will be headed by an Assistant Secretary, who will report to the Undersecretary for Border and Transportation Security. The BTS division will also assume the primary role in visa issuance, a function long administered by the State Department. Under the new law, the BTS division will issue, administer and enforce regulations on the grant or denial of visas and the functions of consular officers overseas. Consular officers will still remain State Department employees, but will be subject to the rules established by the BTS directorate. Section 428(e) of the Homeland Security Act gives the Secretary of the DHS authority to assign employees of the department to each visa-issuing diplomatic and consular post abroad. These employees will provide advice and training to consular officers regarding security threats, and conduct investigations relating to consular matters. Where appropriate, the department’s employees may also be assigned to terrorist lookout committees. The BCIS will perform the immigration service functions currently performed by the INS. These consist primarily of adjudication functions, like adjudicating visa petitions, naturalization petitions, and asylum and refugee applications. The BCIS will be headed by a Director, who will report directly to the DHS Deputy Secretary. Thus, the two immigration bureaus, each headed by a different person, will report to different parts of the DHS. Section 458 of the new law requires the DHS to eliminate immigration backlogs within one year of the Act's enactment. Reducing backlog and timely adjudication of benefits is supposed to be a priority for the BCIS, and should be, as delays and foul-ups in the handling of naturalization and other applications have contributed to the Service’s impaired reputation. Section 461 of the Act mandates the creation of an Internet-based system permitting employers and foreign nationals to check the status of their immigration filings online. (A pilot status check system is already up and running at https://egov.ins.usdoj.gov/graphics/cris/jsps/index.jsp?textFlag=N.) The Act also mandates a feasibility study for filing immigration petitions online. Section 452 establishes a citizenship and immigration services ombudsman within the new department. The ombudsman will report directly to the Deputy Secretary. The ombudsman is supposed to identify and report problem areas and propose changes, both directly to the department and through annual reports to Congress. The ombudsman can also set up local offices in each state. The ombudsman’s offices will assist individuals and employers in resolving immigration problems they encounter. The new law contains a number of other immigration-related provisions. For example, section 462 transfers the care and custody of unaccompanied noncitizen children from the INS to the Office of Refugee Resettlement (ORR) in the Department of Health and Human Services. That is welcome news to children’s advocates, who argued that there was an inherent conflict in having the INS supposedly both assist unaccompanied children and act to remove them. Among other duties, the ORR is now responsible for coordinating the care and custody of unaccompanied noncitizen children, identifying and overseeing facilities where such children are housed, reuniting such children with their parents abroad in appropriate cases, and compiling data on such children. The new law also leaves the immigration courts in the Justice Department’s Executive Office for Immigration Review, subject to the direction and regulation of the Attorney General. Section 705 of the Act creates an officer for civil rights and civil liberties within the DHS. The officer is responsible for reviewing and assessing abuses, including racial and ethnic profiling, by employees and officials of the department. The officer will submit an annual report to Congress, outlining the alleged abuses reported to the office and any actions taken in response. The Homeland Security Act also provides broad exemptions under the Freedom of Information Act (FOIA) for information related to the security of critical infrastructure or protected systems, including computer systems and information. Improper disclosure of this information by a federal employee is a crime. If this provision is interpreted broadly, the FOIA exemption could have a chilling effect on both the ability to request information contained in immigration databases and the public distribution of policy memos and other official information from the immigration-related bureaus in the new Department. Section 475 creates within the department’s Office of Deputy Secretary the position of Director of Shared Services to coordinate resources for the BBS and the BCIS, including information resources management, records and file management, and forms management. Funding for the two immigration bureaus is clearly separated with the establishment of separate accounts in the U.S. Treasury for each bureau. The White House has published a timetable for folding the various agencies into the new DHS. See http://www.whitehouse.gov/news/releases/2002/11/reorganization_plan.pdf (last visited Dec. 10, 2002). Tom Ridge has been picked to head the DHS, and Asa Hutchinson has been nominated as Under Secretary for Border Security and Transportation. The enforcement functions of the INS will merge into the DHS on March 1, 2003. The adjudications side of INS, however, is not expected to move over until the fall of 2003. The Impact of Immigration Reorganization There are many unanswered questions concerning the reorganization of the immigration function. For example, it is unclear whether local INS offices will continue to exist after the merger is completed. If so, since there will be two separate immigration bureaus, each with its own funding, will there be separate offices, one for enforcement, the other for services, in each major city? More importantly, only time will tell whether a clear separation between enforcement and service will improve the immigration function overall. On the one hand, more coordination between the two components is often better than less. Better service can lead to more effective enforcement. Right now, for example, long delays at local INS offices in adjudicating adjustment of status applications for people in the last stage of obtaining a green card mean that individuals may inadvertently go out of status or lack work authorization and thus be referred to the enforcement side of the immigration house. Similarly, some INS offices are taking more than 240 days to adjudicate extensions for H-1B temporary workers, so such workers are losing their employment authorization and falling out of status through no fault of their own. See 8 C.F.R. § 274a.12(b)(20) (people who apply to extend their nonimmigrant status can continue to work for up to 240 days). These inadequacies on the immigration service side make unnecessary work for the enforcement branch. On the other hand, until now many of the top INS officials have risen through the enforcement side of the agency. The enforcement culture that has permeated the benefits side of the INS has created many of the inefficiencies and delays for which the agency has been justly criticized. Separating the INS into two bureaus, each with its own rules, may also cause confusion. For example, right now INS inspections personnel handle interviews of noncitizens required to undergo special registration when they apply for admission at U.S. ports of entry, while INS adjudications officials interview special registrants who have already been admitted to the United States. See generally Stanley Mailman & Stephen Yale-Loehr, The New Rule on Alien Registration, N.Y.L.J., Oct. 28, 2002, at 3. In a few months these officials will be in different bureaus within the DHS, reporting to different bosses. How will coordination between the bureaus work to ensure that the special registration process works smoothly? The bottom line: Expect delays and snafus as the new department figures out how to perform its immigration functions. Moreover, the statutory language requiring the DHS to eliminate immigration backlogs within one year is not enforceable. Given both the current preoccupation with security and the reorganization of immigration functions into the new Department, adjudication backlogs are likely to get worse, not better, over the next year. Moreover, merely shuffling boxes on an organizational chart will not necessarily improve immigration services or enforcement. As the Washington Post recently editorialized, “[t]he real trouble lies elsewhere: in the lack of political will to make the department function as it should. . . . [T]he weaknesses of the INS reflect the country’s hypocrisies and ambivalence in the debate about immigration.” Washington Post, Nov. 21, 2002, at A40. Until Congress and the U.S. public resolve that ambivalence, immigration services and enforcement are likely to remain a mess. ** Stanley Mailman and Stephen Yale-Loehr are co-authors of Immigration Law and Procedure, published by Matthew Bender and Company, Inc. Mr. Mailman (smailman@ssbb.com) is of counsel to Satterlee Stephens Burke & Burke in New York City. Mr. Yale-Loehr (syl@millermayer.com) is of counsel at Miller Mayer in Ithaca, N.Y., and teaches immigration and asylum law at Cornell Law School.
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