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Department of Homeland Security Update: Part One

by Jose Latour

Okay, folks, I had a fun-filled weekend of reading through what the boys in Washington have given us as an end-of-year present, and as I have already told you, I'm not very thrilled about the prospects for 2003 and beyond. Rather than boring you with a blow-by-blow breakdown of every single potential impact that the Act may cause upon those of us involved with the topic of immigration law, I am focusing instead on those items which I believe will have the most measurable and immediate impact. Remember: the signing of a bill into law by the President of the United States is indeed the most significant impact, but not the only one; in the months that follow, each respective agency and subdivision of the Federal Government will be tasked with implementing regulations which will truly define the minutiae which specifically determine how this colossal bunch of new laws will actually be implemented. Therein lie the mysteries which will determine exactly what all of this means to you, to me, and to the rest of us who care about immigrants in America.

Before launching into the specifics of the new law and what the Bush Administration has created, I thought it might be useful to look at what some of the more intelligent folks out there are saying about it, beginning with you. Last week we asked our tens of thousands of readers the following question in our Weekly Reader's Poll:

"Do you believe that the passage of the Homeland Security Act will lead to increased effectiveness in controlling terrorist threats against the U.S. via changes in immigration entry procedures?"

A straightforward enough question, and you came back to us with a straightforward enough opinion... or should I say consensus:

Yes: 29.8 %
No: 70.2 %

Out of all of the replies, 70.2% of our readers - remember our demographics, you folks represent the best and the brightest of human resources, government readers, and immigrants (with an average of a Master's degree education level) - believe that this colossal effort by the Bush Administration will not lead to "increased effectiveness in controlling terrorist threats against the U.S. via changes in immigration entry procedures."

Isn't that, ultimately, the entire purpose of reinventing the way our Federal Government is operating? Isn't the purpose of the Homeland Security Act to prevent September 11th from ever happening again? I believe that it is, and I hope that the 70% of you who believe as I believe are dead wrong, because if we're not, this is the biggest mistake that any administration in this century has ever undertaken in reinventing government.

Now, on that cheery note, let's see what the more published pundits - those whose writing is more widely read than my own and yours - have to say...

Georgie Anne Geyer wrote the following in the Chicago Tribune on December 6, 2002, in an article entitled, "Why the Country Lacks Security: Immigration Laws Almost Null and Void":

"The poor INS has been criticized interminably over the years, but frankly most of this is not the INS's fault. It is the fault of an American government - the White House, the State Department and especially the Congress - that refuses, with stubbornness born of indecision and lack of historic principal, to act intelligently. There are too many competing and cynical interests (cheap labor, multi- cultural cant, the Hispanic vote) for the nation to make up its collective political mind and so the dangerous charade goes on."

Bear in mind that in her editorial, Ms. Geyer reveals herself to be rather ferociously anti-immigrant by making one of the best anti-immigrant arguments that I have read in a considerable time: that a blanket amnesty as the result of political pressure from Mexico would be wholly unacceptable to the vast majority of Americans and that rewarding folks who simply choose to violate immigration laws by entering illegally disregards fundamental fairness to those who wait years to follow the process under the letter of the law.

On November 29, the Washington Post published an article entitled, "A Choice for the INS." In the article, the writer points out concerns for Michael Garcia, the former Federal Prosecutor reappointed as acting commissioner to the Immigration and Naturalization Service. (Remember: Mr. Garcia is a temporary appointee, tasked with guiding the INS into the Homeland Security Department, although he will probably later on assume a key role within that department.) The article cited Attorney General Ashcroft as calling him someone who will "lead tough enforcement of our immigration laws to protect Americans." And as we are all learning, whatever Johnny likes, the President does.

The Post article points out something that AILA has been "sort of" saying, but not very effectively, given that the press and the American public believe the organization to be nothing but a self-interested pack of lawyers concerned only with making money: that Mr. Garcia comes from the enforcement side of INS, as a prosecutor, and that the INS is also responsible for the other half of the immigration mission - an improbable, really impossible, dichotomy of which I have spoken so much in prior years on Mr. Garcia's job is not only to keep the bad guys out, but to let the good and deserving folks who make up 99% of America's immigrants in. While it is comforting to Ashcroft that Garcia will be creating tough standards to keep the bad guys out, nary a thought seems to be going into the process regarding the other critical mission of the INS (or whatever new name they are going to give the subsequent organization) regarding the issuance of permanent residency and temporary visas. Therein lie my concerns.

As the Post points out:

"... much depends on who is appointed to do that job, and what philosophy and background he or she brings to it..."

In the Miami Herald on December 4, Frank Davies wrote more on Mr. Garcia, quoting Angela Kelley, Deputy Director of the National Immigration Forum, who stated:

"We're worried that basic immigration services won't get enough resources and attention."

Ms. Kelley, of course, was referring to Mr. Garcia's prosecutorial background. Meanwhile, back in the Land of Disconnected Logic, the Federation for American Immigration Reform (FAIR), the leading anti-immigration organization (but still a mostly logical group which is at least honest about their agenda when discussing it with the American public), stated that:

"Hopefully this experience [Garcia's prior prosecution of terrorists relating to the World Trade Center bombing and the 2001 trial of four suspects related to the East African Embassy bombings] has given him an appreciation for the inherent connection between uncontrolled immigration and the threat to homeland security."

That statement by FAIR is not wholly without value, but it's also like saying that "eating chicken will kill you." Most of us eat chicken pretty regularly, but deaths from salmonella poisoning caused by eating chicken occur in one in several million cases. Similarly, despite the huge number of illegal aliens in the United States, twisting the logic into suggesting that illegal immigration is the cause of terrorism and the "threat to homeland security" is just plain silly. Yes, FAIR is right in that we need to control our borders from illegal immigration, but don't you believe for one minute that controlling illegal immigration will stop terrorism against America. Seventy point two percent of some really smart folks I know don't buy that for one minute. (-:

Last one:

On November 30, the traditionally conservative Washington Times published an article captioned "INS Shown Lacking Equipment, Staff; Screening Hampered, Report Finds."

I won't go into great detail on this one, but I will tell you this much: Jerry Seper's very interesting article basically proved to the American readership what all of us here at (both writers and readers) have known for a long time: border security, the enforcement of removal of aliens, visa tracking systems, and computer security are the biggest challenges that the INS has faced and will continue to face as it phases into the new Department of Homeland Security. According to Seper, the management review conducted by the Justice Department's Office of Inspector General said that the INS's ability to screen people trying to enter the United States remains a "key element" of homeland security and that the task continues to be hampered by a lack of adequate staff, equipment, and infrastructure support.

Mr. Bush, you've just thrown everything in the refrigerator into one giant crock pot. It's starting to simmer. Mr. Ashcroft is wearing a chef's hat and has a big spoon.

No wonder Secretary Powell is sending out for pizza.

Tackling the Language of the Homeland Security Act

Okay, now comes the painful part: H.R. 5005, as it was known before the final signature of the President but after passage by both the House and the Senate, consisted of changes to a whole slew of administrative federal agencies, but I have only pulled out sections that are directly and tangentially related to immigration law. I read these over and I'm going to try to point out to you the most important provisions, from my point of view. As you guys know, a lot of other attorneys are doing similar things, and that which I deem important may not be considered so important for another attorney. Conversely, something that may be the subject of considerable focus by someone else I may completely ignore or just gloss over. Each of us will see this differently, particularly until the final implementing regulations are created in the coming months by the corresponding agencies created.

I'm going to start with Section 428 of the new law, "visa issuance." Things get ugly from the very beginning: in the second paragraph of the section, the Immigration and Nationality Act is set aside as an afterthought to homeland security:

"(b) IN GENERAL - Notwithstanding section 104a of the Immigration and Nationality Act... or any other provision of law... the Secretary --

(1) Shall be vested exclusively with all authorities to issue regulations with respect to, administer, and enforce the provisions of such Act, and all other immigration and nationality laws, relating to the functions of consular officers of the United States in connection with the granting or refusal of visas, and shall have the authority to refuse visas in accordance with law and to develop programs of homeland security training for consular officers (in addition to consular training provided by the Secretary of State), which authorities shall be exercised through the Secretary of State, except that the Secretary shall not have the authority to alter or reverse the decision of a consular officer to refuse a visa to an alien; and

(2) Shall have authority to confer or impose upon any officer or employee of the United States, with the consent of the head of the executive agency under whose jurisdiction such officer or employee is serving, any of the functions specified in paragraph (1)."

Okay, guys, let's take a deep breath. Are you realizing how the section on visa issuance begins? Let me give this to you in plain Jose-speak:

The Secretary of Homeland Security has exclusive authority to issue all regulations relating to visas, their granting and refusal, and the authority of such secretary is sacrosanct. The secretary can override the Secretary of State by refusing absolutely anything that the Secretary of State approves. The Secretary of Homeland Security cannot approve a visa denied by a consular officer (when on earth would he want to ??). Best of all: the Secretary of Homeland Security can delegate that authority upon "any officer or employee" and effectively delegate that omnipotent authority on visa issuance upon anyone, subsequently castrating the Secretary of State's visa authority on a matter of visa issuance.

How are we doing so far? Let's go on to subsection C of Section 428 captioned "AUTHORITY OF THE SECRETARY OF STATE." Subparagraph (1), IN GENERAL, states:

"Notwithstanding subsection (b), the Secretary of State may direct a consular officer to refuse a visa to an alien if the Secretary of State deems such refusal necessary or advisable in the foreign policy or security interest of the United States."

Think about this guys: the homeland security czar is giving the Secretary of State "permission" to deny visas! It's absolutely ludicrous! Can you imagine a scenario any more arrogant than the Homeland Security Secretary giving the Secretary of State authority to refuse a visa in a scenario where the Department of Homeland Security has determined that a visa may be approved? This was the most infantile linguistic effort to throw Colin Powell a bone, and I can only imagine the disgust he felt when reading this in the final language of the law... my heart goes out to him after reading this, honestly. Let's continue...

Subparagraph (2) "CONSTRUCTION REGARDING AUTHORITY" goes on to detail that "consistent with the Secretary of Homeland Security's authority to refuse visas in accordance with the law, shall be construed as affecting the authorities of the Secretary of State under the following provisions of law:"

After that, you have enumerated, as letters "A-P" a list of 16 subsections of the Immigration and Nationality Act, as well as various other public laws, which, like all of the Immigration and Nationality Act, fall wholly under the responsibility of the Secretary of State. Again, this subsection is a pathetic bone thrown at the mighty Colin Powell, to save some sort of dignity, but it is truly sad and ridiculous.

I think that's enough for today, come back tomorrow and we'll take a look at what the HSA has to say about how State Department officers are going to be handled under these new provisions.

Exploring the Changes

Hi, folks! Glad to see you're back for another fun and informative session on the Homeland Security Act, that delightful piece of legislation brought to you by our visionary leaders in the White House. Today we're going to take a look at what the Homeland Security Act has to say about consular officers and their new ways of handling visa processing, as well as other fun things you can expect in your visa processing.

Yesterday, I gave you some pretty grim news: under the words of the new Act, the Secretary of State will no longer be really responsible for visa issuance... Ashcroft just wants him to think that he is. We now know that Section 428 designates the Secretary of Homeland Security as the "Supreme Ruler of All Things Visa," but the Secretary of State was lovingly reassured therein that, yes, you can refuse visas that we are willing to let you approve. I know that I slept better reading that.

Moving on down in Section 428 to subsection (d), the Act stopped a minor riot at our consulates abroad by reassuring foreign service officers that nothing in Section 428 of the Act "may be construed to alter or affect the employment status of consular officers as employees of the Department of State." (Not that anyone but me ever voluntarily quit as great a job as the Foreign Service, but that's another story... (-:) After that, subsection (e) talks about putting a little pressure on our foreign service officers abroad by authorizing the Secretary of Homeland Security to place employees of the Department of Homeland Security at "each diplomatic and consular post at which visas are issued, unless the Secretary determines that such an assignment to a particular post would not promote homeland security."

I was really curious about that provision: after being repeatedly reassured by the Bush Administration that this new, colossal piece of legislation would not lead to a significant increase in the size of the government, here's a little tiny tidbit that no one mentioned until the legislation became LAW: the additional placement of essentially "internal security agents" at embassies throughout the world, just there to make sure that our properly trained U.S. Foreign Service Officers are doing their job correctly. So, in addition to empowering the Secretary of Homeland Security to breathe over the neck of the Secretary of State, we're creating an additional layer of bureaucracy where employees designated by the Secretary of Homeland Security breathe over the necks of our consular officers at embassies overseas, to make sure that they are doing their jobs right! This is starting to sound remarkably un- Republican to me... )-: But it gets even better: sub-sub section of (e) says that those employees are going to be providing the following functions:

"A. Providing expert advice and training the consular officers regarding specific security threats relating to the adjudication of individual visa applications or classes of applications.

B. Review any such applications, either on the initiative of the employee of the Department (of Homeland Security) or upon request by a consular officer or other person charged with adjudicating such applications.

C. Conduct investigations with respect to consular matters under the jurisdiction of the Secretary (of Homeland Security)."

Guys, I just about choked on my green tea when I read this. Talk about something written by Washington bureaucrats who are absolutely oblivious to the reality of visa processing. What has just been described in the final letter of the law signed by President Bush is a delusional, fictional understanding of what visa processing is like at even a modestly busy consulate anywhere in this world. To train, deploy, and implement such a corps of qualified DHS security professionals and make them available to consular officers throughout the world is a colossal, multi-year undertaking costing probably tens of millions of dollars. The delays associated with the visa processing of such implementation would effectively make the entry of individuals from most nations in this world impossible... it would shut down our international travel, our business, our export and import markets... it would put us out of global activity. It would effectively lead to a financial, economic, and social isolationism like nothing we have seen since the end of World War II. It is truly shocking and astonishing to me that the White House is capable of signing something so poorly misunderstood and fundamentally flawed.

Then again, maybe I shouldn't be so shocked.

Under subsection (7), the Secretary of Homeland Security is required to report to Congress exactly one year after the day of enactment to describe progress. There will be very little progress to report, I predict.

A Surreal Suggestion

Here in Section 428 things get a little weird, and see if you agree with me: much has been said and spoken about since September 11 regarding the corruption in foreign countries, the bribery, the scams, the false passports... the fact that our own American system is comparatively clean when contrasted against the internal government systems of many foreign nations. One of the most fundamental issues behind the Homeland Security effort has been, at least in the words of the Administration, to get American decision-makers behind the effort to implement security strategies. For this reason, subsection (G) of Section 428 struck me as particularly bizarre, especially with Ashcroft's consent: the Secretary of Homeland Security is supposed to conduct a study regarding the role of foreign nationals in the "granting or refusal of visas and other documents authorizing the entry of aliens into the United States."

In 1988, I was involved with one of the most innovative State Department programs which had ever occurred: the transition from traditional Diplomatic Officer Visa Approvals to "Visa Examiner" Adjudication Systems in Ciudad Juarez, Mexico. For cost-related reasons, the State Department was granted authority to hire civil service employees in El Paso, transport them into Mexico, and have these employees train to adjudicate visas. The requirements were, of course, U.S. citizenship as well as a variety of other specific criteria. I got to train some of the finest visa adjudicators with whom I have ever had the privilege of working, and a number of them remain at the visa window to this day in Juarez. They are dedicated, hard working folks and U.S. taxpayers have saved hundreds of thousands of dollars in the decade and a half since as a result of this innovative transition. That was considered extremely radical then, and the State Department was very nervous about the implementation, seeing it as a potential threat to the career Foreign Service.

Now, here we are on the tail-end of a tremendous xenophobic response to the visa issue watching the INS bundling of approvals for dead terrorists, and in the middle of the Homeland Security Act, we see a proposal for foreign nationals being given the authority to GRANT U.S. visas?? You won't hear it on CNN, you won't see it in the New York Times, and you haven't read about in the Herald, but you're reading about it on, because I took the time to read this damn thing. Mr. Secretary, let me answer your questions really simply without having to conduct your "study":

What is the proper role, if any, of foreign nationals in the process of rendering decisions of [visa] grants and refusals?

A- None: since the 1950s, the Immigration and Nationality Act has provided the U.S. Secretary of State the authority to grant and deny visas to the United States. Not you, not folks you assign, and certainly not non-U.S. citizens. Bad idea.

Are there any security concerns involving the employment of foreign nations?

A- Yes. About a billion of them. Can you say "Special Registration"? Hello?? Three paragraphs ago you just finished telling us that you intend to place employees to watch over the shoulders of U.S. citizens who are America's best and brightest, who passed the Foreign Service Exam and obtained Top Secret clearances, and who are adjudicating visas on behalf of the U.S. government, and now you're seriously considering hiring non-U.S. citizens in third world countries with the power to issue U.S. visas for foreign nationals?? Slap yourself upside the head, man!

Are there any cost-effective alternatives to the use of foreign nationals?

A- News flash: if you want to create a monstrous, elephantine bureaucracy that borders on fascist and create a front line to supervise and ensure that our front line adjudicators are doing what they're supposed to be doing, it's going to cost money. You cannot reinvent and duplicate the size of our federal government and save money while tasking the most fundamental and dangerous portion of our visa control process - visa issuance - to foreign nationals. Stupid idea.

Okay, I think my blood pressure is high enough for today. Let's resume tomorrow.

Okay guys, it's Thursday, we made it through Section 428, and my bottle of Tums is growing lighter. Let's try to kick it into gear here: Section 429 does something which should have been done a long time ago and essentially replicates what a number of internal INS and State Department memos have been doing for years: it creates a requirement that visa denial information should be entered on a shared electronic data system available to all federal agencies. Remember my ranting and raving about the fact that the technology for biometrics has been available since I was a consular officer back when dinosaurs roamed the earth? Well, Section 429 basically says we need to put that stuff where everybody can get to it, it's a great idea, blah, blah, blah.

Section 441, which is part of subtitle (d) - "Immigration Enforcement Functions," - transfers from the Commissioner of Immigration and Naturalization to the Undersecretary for Border and Transportation Security all functions performed under the following programs, including personnel, assets, etc.:

  1. The Border Patrol Program
  2. The Detention and Removal Program
  3. The Intelligence Program
  4. The Investigation Program
  5. The Inspections Program

Section 442 establishes "The Bureau of Border Security." Before I get into this a little further, let me change my tone a little bit from the past few days and tell you that when it came to defining the enforcement functions, this is clearly something where the White House had a better "feel" for how to proceed. It is clear from my reading of the Homeland Security Act that it was written by a bunch of cops, with no clue on how to proceed on the task of being a "judge." If the Homeland Security Act's final language does anything, it validates what the American Immigration Lawyers Association's more seasoned visionaries have been saying for many years: namely that the INS has been living an impossible mission from its very inception. Enforcement and adjudication are, by their very nature, contradictory functions. Once I got to Section 442 and border security, the congressional drafters, re-drafters, and commentators on the Act really hit their stride, making it clear that they really knew what to do with the bad guys... it's the disturbing fact that the "good guys" - the 99.9% of folks who deserve the immigration benefits they get in this country - are nothing more than an afterthought when it comes to the immigration provisions and applications of the Homeland Security Act.

In Section 442, the establishment of the "Bureau of Border Security" falls under the control of the Assistant Secretary of the Bureau of Border Security. That individual reports directly to the Undersecretary for Border and Transportation Security, and curiously, they created a minimum experience requirement for it, almost comical in a legislative monstrosity this size: said Assistant Secretary must have "a minimum of five years professional experience in law enforcement and a minimum of five years of management experience."

I wonder what the SVP is? (-:

After generally defining the duties, they talk about a number of things which are a little squirmy for most immigration lawyers, but I think that the majority of us would understand the need: programs to collect information regarding the foreign students (purportedly to make sure that people really are studying and not pretending to be here studying while plotting on flying airplanes into large buildings), managerial rotation programs designed to offer training opportunities within the Bureau, etc. Pretty much the kind of stuff you see in the formation of any new agency and nothing particularly offensive or scary, although I believe many AILA members continue to be troubled by the monitoring of students in the United States.

In addition to creating the congressional functions that are usual (such as those described earlier) another interesting section pops up, Section 446: Congress expresses their interest in ensuring that the 14-mile border project in San Diego, California, must be a priority for the Secretary. Kind of notable in that, given the vast agenda set forth for the Secretary of Homeland Security, somebody in Congress felt pretty strongly about the issue in San Diego as it relates to Mexicans and others entering via the border, enough to say "Hey, finish that 14-mile fence." Interesting that it made it into the final language of the signed law.

After that, we move into Section 451, the establishment of the Bureau of Citizenship and Immigration Services. This one also has a five-year management experience requirement and reports directly to the Deputy Secretary and "shall be paid at the same level as the Assistant Secretary of the Bureau of Border Security." Why? Not sure... to prevent a turf war? Who knows?

The Director of the Bureau of Citizenship and Immigration Services has a designated list of enumerated responsibilities which centers around "establishing National Immigration Services policies and priorities." One nice thing appearing in Section 451 was subsection (a)(5) titled, "PILOT INITIATIVES FOR BACKLOG ELIMINATIONS." That provision authorizes the Director to "implement innovative pilot initiatives to eliminate any remaining backlog in the processing of immigration benefit applications."

I must tell you guys that when I read that, I was initially happy. Then I thought about it: this is just probably another example of the Bush Administration's total obliviousness to the fact that the reason that we have colossal backlogs is simply because the INS has a humongous workload and a microscopic budget, and without enough manpower and training, they cannot possibly clear the backlog. Once the Director goes to try and comply with this particular directive, he is going to say to Congress, "Hey, I need a bunch of money to do this." What do you suppose that Congress is going to answer? Hmm? We know the answer.

The section goes on to talk about the transfer of functions to the Director from the Commissioner of Immigration and Naturalization Services and the creation of a "Chief of Policy and Strategy" within the Bureau of Citizenship and Immigration Services, responsible for making policy recommendations as well as the establishment of Legal Advisor, Budget Officer, and the Chief of an Office of Citizenship. All of these sound nifty and great, but the lack of specific structural guidance as to how these are going to unfold makes one thing perfectly clear to me: either INS structural mechanisms are going to have to be mirrored within the new bureau or we are going to face some extraordinarily long delays as the regulatory structure is defined at even a skeletal basis in the coming year.

Section 452 creates a Citizenship and Immigration Services ombudsman. For those of you new to the word, it has nothing to do with beer and Clydesdales. (-: An ombudsman is an individual responsible for troubleshooting and reconciling disputes within an organization. It's a well-thought-out plan, and the function assigned to him is to basically assist individuals and employers in resolving problems with the Bureau of Citizenship and Immigration Services. Essentially, the individual assigned to this task would serve as sort of a "mega-liaison," kind of the way that the selfless AILA liaisons so often help our membership in problems with the service centers and local district offices. The problem is this: in order for an ombudsman office to be truly effective within the Bureau of Immigration, the infra-structural support necessary under such an ombudsman would have to be colossal... we're talking hundreds of employees deployed either nationally or one colossal servicing office with literally hundreds of phone lines to address the thousands of things which go wrong on a daily basis, and to make it assessable on a meaningful basis. If the ombudsman is truly going to intervene and troubleshoot, then it has to be done right. I suspect that this well-intentioned assignment for this individual will go down in frustration. The background calls for someone with customer service experience, but the truth is that the task will be somewhat impossible to fulfill. Like the others, the ombudsman will be required to file an annual report with Congress, this one with the Committee on the Judiciary of the House of Representatives and of the Senate. In addition to that, the ombudsman has a series of very specific responsibilities.

Section 453 defines the professional responsibilities of the Director of the Bureau of citizenship and Immigration Services, and it is pretty much what you would expect: a delineation saying that they are responsible for ensuring quality within the agency. Section 454 describes how discipline shall be handled, but it is just a short little paragraph saying what you would expect it to say. Section 456 talks about the transition from the Department of Justice to the Bureau and about how the handling of liabilities, contracts, etc. shall be transferred and handled.... I can tell you, from having handled a number of corporate transitions over the years, those several short, little paragraphs regarding the transition of something as enormous as this seem a little bizarre to me; considering the nightmare of issues that I've seen take place and the transfer of even a comparatively small company, I can't even begin to imagine what will take place here.

But then again, I'm talking private sector, where there is actual accountability... (-;

Sections 457 and 458 are humorously lumped together: 457 talks about "funding for Citizenship and Immigration Services," but it is nothing but a tease: Section 256 (m) of the Immigration and Nationality Act is simply amended to delete the mention of asylum applicants and other immigrants receiving free benefits, while Section 458's "backlog elimination" doesn't talk for a moment about how such elimination will be funded, it simply says how the wording of the one year deadline shall be enacted. We'll see...

Sections 459 and 460 create reporting requirements to Congress, more expected bureaucratic measure-takers. Section 461 is pretty cool: it requires the establishment of an "internet-based system, that will permit a person, employer, immigrant, or nonimmigrant who has filings with the Secretary for any benefit... access to online information about the processing of the filing involved." This is an extraordinarily ambitious idea, and one we certainly welcome, as is part (b) of that same Section 461, which is a feasibility study for the online filing of cases.

See, it's like finding a pearl wedged between the teeth of the Great White coming to swallow you, isn't it? (-:

The Technology Advisory Committee created by subsection (c), due to be created 60 days after effective date of the Act, is tasked with establishing the tracking system and conducting the study. The new committee shall be composed of "representatives from high technology companies capable of establishing and implementing the system in an expeditious manner, and representative of persons who may use the tracking system." Hey, Washington, if you pick me I promise I'll stop my Bush and Ashcroft jokes for the duration of my time on the committee, but I will start right back up again immediately thereafter.

Section 471, under subtitle (f) ("General Immigration Provision") must have brought great glee to a number of folks on Capitol Hill: it is captioned "Abolishment of INS," a Goth-like proclamation certainly inspiring joy in the hearts of those who hate the agency. Listen to the somber words of subsection (a) of 471:

"IN GENERAL - Upon completion of all transfers from the Immigration and Naturalization Service as provided for by this Act, the Immigration and Naturalization Service of the Department of Justice is abolished."

I have to tell you guys, it made me sad to read that. My journey with the INS has been a long and frustrating one, but I have many friends in that organization, and while I have no doubt that they will continue on with this new Department of Homeland Security, things will undoubtedly be very different for them. I thought a lot about my old friends in New York and how some of those guys were involved with the INS in the '30s and '40s and are now retired from private practice. I know that this phrase probably really touched them in a way that I will never understand. Section (b) talks about never permitting the Bureau of Border Security and the Bureau of Citizenship of Immigration Services to be combined into a single agency or to otherwise "combine, join, or to consolidate functions," a true testament to Congress FINALLY realizing that the original mission of INS was doomed: one cannot be both the police officer and the judge deciding the fate of those accused. While it was good to see that, it is in a way sad to see the legacy of the INS go by the wayside with such a poorly thought-out piece of legislation dominated more by a reactionary response to terrorism than by a cautionary, intelligent respect for our civil liberties and our history as a nation of immigrants.

I remember back - and you can find a link in here somewhere by searching "Ellis Island" - to the honorable legacy of the Immigration and Naturalization Service and just this century's development of the United States in the trustworthy hands of the folks who have come from abroad. The INS has indeed been a heroic agency, facing doubtless challenges at the whim of whoever was in the White House and budgets poorly suited to meet their task. Ellis Island will stand as a tribute to their history and honor those folks.

About The Author

Jose Latour is the founding partner of Latour & Lleras, P.A., a Gainesville, Florida based business immigration practice representing corporations nationwide in visa management, compliance, and HR training. The above represents Mr. Latour's Editorial opinion. The A/V rated firm and its web site,, were named a winner of the 2002 Inc. Magazine Web Award, receiving recognition along with 14 other companies as the best Web companies in America. In 1999, the firm was named “One of America’s Top Ten Internet/Virtual Companies” in the Inc. Magazine and Cisco Systems “Growing with Technology Awards." The site is one of the most visited and widely read resource on the Internet on U.S. immigration law, attracting subscribers from all over the world , the media and from within the U.S. government. Mr. Latour served as a U.S. Diplomatic and Consular Officer in Mexico and Africa before entering private practice and today divides his time between his law practice, writing, flying, and his music.

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