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Homeland Security Measure Becomes Law

by Cyrus D. Mehta

President Bush, on November 25, signed legislation creating a new Department of Homeland Security, the composition of which will dramatically alter our immigration functions. The President has nominated current Homeland Security Advisor Tom Ridge as his nominee to lead the new department, and has tapped Asa Hutchinson, currently the administrator of the Drug Enforcement Agency, to serve as Undersecretary for Border and Transportation Security. President Bush also announced his intention to designate Michael Garcia as Acting Commissioner of the INS upon Commissioner Ziglarís departure on November 30. Mr. Garcia, currently the Assistant Secretary for Export Enforcement at the Department of Commerce, will oversee the INSís transition into the new Department of Homeland Security.

Attorney General Ashcroft said, ďI welcome the Presidentís choice of Michael Garcia to shepherd the INS into the new Department of Homeland Security, with its central mission to keep our nation safe from future acts of terrorism. Mr. Garcia is one of Americaís top terrorism prosecutors and will lead tough enforcement of our immigration laws to protect Americans from terrorism and secure our homeland.Ē

Immigration groups such as American Immigration Lawyers Association (AILA) have long called for the reorganization of our immigration functions based on principles that have been acknowledged to be central to effective reform. The principles are: coordinate the separated service and enforcement functions; place at the helm a leader with the authority to develop and administer policy for all immigration functions; and adequately fund our immigration functions.

Unfortunately, in contrast to the Homeland Security measure that passed the Senate Governmental Affairs Committee (S. 2452), the Homeland Security Act of 2002 includes several extremely troubling provisions. Most importantly, the Act fails to provide for one high-level official who is focused on our nationís immigration policy, relegates immigration services to a bureau that lacks its own Under-Secretary, provides little or no coordination between immigration enforcement and services, and fails to adequately protect the important role of our immigration courts.

AILA has frequently stated that effective reform of the INS and an effective Department of Homeland Security require that our immigration functions be both elevated within the new department and reformed. The new Act does neither. We cannot separate our immigration functions and expect coordination, accountability, or adequate attention to the immigration agencyís critical service and enforcement functions.

With regard to our immigration courts, the Act, while maintaining the Executive Office for Immigration Review (EOIR) within the Department of Justice, does not recognize the need for checks and balances in our immigration system. The Act codifies the existence of the courts and the Attorney Generalís authority to control them, but fails to address key concerns such as the role and independence of the courts and the impartiality of the judicial process. By failing to include language that provides a statutory framework for the role of immigration courts, the Act has missed an important opportunity to reform our immigration courts to ensure efficiency and accountability, restore public confidence, and safeguard due process. This is especially important because in the majority of immigration cases, the immigration courts provide the only opportunity to review the decisions of low-level immigration officers. Immigration judges offer critical protections against mistake or malfeasance.

The new Homeland Security Act also raises other concerns with regard to the granting of visas, and excludes asylum protections and provisions reflecting the need for special treatment of unaccompanied minors that had been in the Senate committee-passed bill. In addition, the Act creates a weak civil rights office lacking the power to investigate violations committed by the Department of Homeland Security.

The new Act does include two helpful provisions. One charges the department with ensuring that the overall economic security of the United States is not diminished by efforts, activities and programs aimed at securing the homeland, and that the functions of the agencies and subdivisions within the Department that are not directly related to securing the homeland are not diminished or neglected. The other appoints a Special Assistant to the Secretary who will be responsible for creating and fostering strategic communications with the private sector to enhance the departmentís primary mission. This Special Assistant would create and manage private sector advisory councils to advise the Secretary on homeland security policies, regulations, processes and actions that affect participating industries and associations.

Below is a section-by-section summary of the Homeland Security Actís immigration-related provisions drafted by AILA.

1. Directorate of Border and Transportation Security: The Act establishes this directorate and the position of Under Secretary for Border and Transportation Security. The Under Secretary will be responsible for preventing the entry of terrorists into the U.S., securing the borders, carrying out the immigration enforcement functions of the INS (defined as Border Patrol, detention and removal, intelligence, investigations, and inspections), establishing national immigration enforcement policies and priorities, and establishing and administering rules governing the granting of visas or other forms of permission, including parole.

2. Bureau of Border Security: The Act establishes the Bureau of Border Security and establishes the position of Assistant Secretary of the Bureau who reports directly to the Under Secretary for Border and Transportation Security. The Assistant Secretary, among other duties, establishes policies and oversees the enforcement immigration functions, and administers SEVIS and other programs established to collect information on foreign students and other exchange programs.

3. Visa Issuance: The Act exclusively vests the Secretary of Homeland Security with all authorities to administer all laws, and to issue regulations, relating to the functions of consular officers in the granting or refusal of visas and shall have the authority to develop programs of homeland security training for consular officers.

4. Information on Visa Denial Required to be Entered into Electronic Data System: Whenever a consular officer denies a visa, the fact of the denial, the basis for the denial, and the name of the person denied will be entered into the interoperable electronic data established under the Enhanced Border Security and Visa Entry Reform Act.

5. Bureau of Citizenship and Immigration Services: The Act establishes the Bureau of Citizenship and Immigration Services to be headed by a Director who reports directly to the Deputy Secretary for Homeland Security. The Director is responsible for adjudication of all petitions currently performed by the INS, including asylum and refugee applications.

6. Childrenís Affairs: The Act transfers the care and custody of unaccompanied alien children from the INS to the Office of Refugee Resettlement (ORR) in the Department of Health and Human Services.

7. EOIR: The Act establishes in the Department of Justice the Executive Office for Immigration Review, subject to the direction and regulation of the Attorney General.

8. Office of Civil Rights: The Act creates an Officer for Civil Rights and Civil Liberties. The Officer will be responsible for reviewing and assessing abuses, including racial and ethnic profiling, by employees and officials of the department. Congress will receive an annual report outlining the alleged abuses reported to the office and any actions taken in response.

9. FOIA: The Act provides broad FOIA exemptions for information that is related to the security of critical infrastructure or protected systems, including computer systems and information. Improper disclosure of this information by a federal employee would become a criminal offense. If this provision is interpreted broadly, the FOIA exemption could have a dramatic chilling affect on both the ability to request information contained in the INS databases as well as the dissemination of policy memos and other official information from the immigration-related bureaus.

It appears that the new measure will lead to increased enforcement as well as a re-interpretation of the law through the prism of security. For instance, the INS has been generous with interpretations on some of the harsh provisions in the 1996 laws. People on F-1 or J-1 visas with Duration of Status (D/S) have never been subject to the 3 or 10-year bars even though they may have violated status. It is hoped that such liberal interpretations continue within the new Department of Homeland Security. We also hope that the various departments not dealing with security, such as the Bureau of Citizenship and Immigration Services and the Office of Civil Rights, are able to serve as effective counterpoints to enforcement measures that may be undertaken by other more security-oriented agencies within Homeland Security.

Finally, the implementation of harsh immigration laws may some day cause a reaction that may result in changes of a more liberal nature in the future.

About The Author

Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, practices immigration law in New York City. He is First Vice Chair of the American Immigration Law Foundation and recipient of the 1997 Joseph Minsky Young Lawyers Award. He is also Chair of the Immigration and Nationality Law Committee of the Association of the Bar of the City of New York. He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted at 212-425-0555 or

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