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House Of Representatives Bill To Replace The INS Raises Questions
by Carl R. Baldwin

On April 25, 2002 the House passed H.R. 3231, a bill to replace the INS with the Agency for Immigration Affairs. The new agency would have two heads, so to speak, one facing the task of controlling the borders to prevent unwanted admissions and expelling the unwanted, the other, more friendly, facing the task of providing benefits to aliens who deserve help. Wouldn’t one intelligent head be preferable?

There is no doubt that enforcement and benefit functions are different. But, in my opinion, there is reason in the world why one agency (the INS) could not perform both functions, if it were given the funds to do them properly and in a timely fashion. The replacement plan was evidently pushed into high gear by the headlines that trumpeted the INS mistake in taking six months to inform a flight school of the change of status of two applicants for M-1 student status who turned out to have been two of the 9/11 hijackers. The brouhaha was really a canard, because the change of status was routine, and the INS at the time of adjudication had no information about the terrorist intentions or inclinations of the two applicants. Indeed, H.R. 3231 would have had no effect on this fiasco, since, at the time of adjudicating the seemingly harmless I-539, there was nothing to enforce. But this foul-up gave us H.R.3231, which raises more questions than it answers.

Take the hypothetical example of an alien who enters with a fake passport that is not noticed when the arrival is effected. The alien eventually meets and marries in good faith a U.S. citizen. The citizen files the I-130 and the alien simultaneously files the I-485. Their lawyer encloses the I-601 waiver of excludability. At present a single INS officer will decide both the I-485 application and the I-601 waiver application, and will weigh one against the other. What is going to happen under the new system? Is an “enforcement” officer from the new agency going to prosecute the fraud independently of the I-485, and a “benefits’ officer from the same agency the application for adjustment independently of the fraud? If so, are these two different officers going to communicate with one another about this case, or should I say these cases? Wouldn’t it make more sense to leave things as they are, and just make sure that there are enough well trained officers to do the job conscientiously and correctly, weighing the positive and the negative factors? How else can one decide whether a waiver should be granted?

The H.R. 3231 locomotive is racing down the tracks. Was this trip necessary?

About The Author

Carl R. Baldwin graduated from Columbia University Law School in 1980, and became a member of the New York State Bar a year later. He worked for three years with the New York City Law Department, and then entered solo practice in immigration law, which he has continued to the present. His work with clients has included asylum applications, deportation defense, visa processing, adjustment of status, and naturalization. He has also worked to implement special laws, such as the 1986 "amnesty" (The Immigration Reform and Control Act), and the 1998 Haitian reform act (The Haitian Refugee Immigration Fairness Act). Mr. Baldwin is the author of Immigration News Monthly. He can be reached by e-mail at

He has written a book on immigration law, called "Immigration Questions and Answers," Allworth Press, 2002. The book, which contains essential background information about how the immigration law works, can be ordered online from Allsworth Press at:

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.