Department of Homeland Security Update: Part Two
by Jose Latour
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.:
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.
Section 478, Immigration Functions
I'll start the beginning of the end with Section 478, Immigration Functions, and what the Homeland Security Act has to say about it. Subsection (a) requires an annual report from the Secretary of Homeland Security. The report shall be given to the President of the United States and to the committees on the Judiciary and Government Reform at the House of Representatives and the Senate regarding the impact the changes have had on immigration functions. The report will cover everything from the numbers of immigration applications and petitions, to region-by-region statistics on applications received and denied by category and petition type, to quantity of petitions and backlog, to numbers awaiting processing, to a detailed plan for eliminating backlogs, to average processing times by petition type, to the number of immigration-type grievances filed at any Department of Justice office and how they are being resolved, to immigration-related fees usage, and to customer-service success or failure.
All of that is extremely comforting in that, for the first time, Congress is requiring those in charge of immigration to provide meaningful information on a quantitatively-specified basis. (I know, I know, our AILA readers will say, "But, Jose, that's not true: Congress has mandated similar reports from INS in the past, and INS has consistently failed to meet those reporting requirements and to answer those questions." What I'm saying here, though, is that in creating a new entity involved in the transition of something old to something new, Congress has effectively created the "absence of excuse" in requiring an affirmative response from the Secretary of Homeland Security to basically give a "state of the immigration" address on an annual basis. Because of the politics of Bush putting all of his eggs in this colossal basket, the "we don't have the answers for you now" that INS has given us in the past is simply an impossibility, I believe, for this new organization's leaders.)
Other provisions in the Act are not specifically immigration- related, but I believe they need a quick mention here because they will indeed come into play in certain aspects of immigration, such as the "special registration" disaster that we are currently witnessing. For example, under Section 892, "FACILITATING HOMELAND SECURITY INFORMATION SHARING PROCEDURES," the new law discusses the way in which security information will be shared within organizations under the giant umbrella. This is a critical matter as it relates to you guys, and here's why: what is causing the terrible delays for many innocent people stuck abroad right now is the fact that the State Department, the FBI, and the consulates are having a terrible, chaotic time communicating with each other regarding who is doing what to clear names of those awaiting visa processing abroad. Theoretically, through this consolidation, the technologies that have been available to us for many years will now be housed under one roof, allowing a consular officer in, say, Jakarta, to immediately and swiftly determine that the individual standing before her is not the same individual with the same name on a suspected terrorist list, via biometric and biographic information available through an interconnected security database. Civil Libertarians are going to have a field day challenging Section 892, notwithstanding the language discussing "the timely removal and destruction of obsolete or erroneous names and information," etc. The truth is that the integration of such a massive database within such a massive organization will indeed mean that information is more vulnerable than ever to unauthorized access. If we are to clear individuals through the security level clearances that Americans want, there is simply no other way to do it. Once again, we are caught in that classic dilemma between freedom and the divulging of personal data, and the answers are not easy. Other sections will add more tension to the privacy debate. Consider these:
You guys can hear the ACLU screaming from where you sit, can't you? There's an awful lot in here to make even the most conservative attorneys (such as myself) cringe, but it is really not surprising that this was developed under this particular administration. Finally, another provision which will only be of interest to my fellow pilots (which, I'm delighted to say, have really increased in readership of late): under Section 1401, the "Arming Pilots Against Terrorism Act" was invoked, allowing the deputizing of volunteer pilots of air carriers providing passenger air transportation or interstate passenger air transportation as federal law enforcement officers to defend the flight decks of aircraft of such air carriers against acts of criminal violence or air piracy. These officers will be known under the new law as "Federal Flight Deck Officers." I won't get into the nitty gritty, but if any of our pilot readers want to check it out, the subsection is 44921, and you can find it by searching http://thomas.loc.gov. Basically, very specific rules are detailed as to the training that volunteer pilots can receive for authority to carry firearms onboard flights, crew training associated with it, etc. Despite the diversity in opinions, I continue to have the personal belief that qualified airline pilots who are properly trained in carrying a gun (and who feel comfortable doing so) continue to be the last line of defense and that if such had been the case, September 11 would have ended very differently than it did.
Well, I think you guys have had about enough law for this week, what do you say? (-: Instead of ending you on such a bummer of a vibe, let's start the weekend off with something a little happier. Most of you know that one of my heroes is former President Jimmy Carter, and that he recently won the Nobel Peace Prize, one of the most deserving recipients in years. I'm going to talk about him next week in one of my articles, but I'll leave you to start your weekend with a short quote from his Nobel Peace Prize acceptance speech, on Tuesday, December 10th, to put everything that we've been talking about this week into a little better perspective:
"I am not here as a public official, but as a citizen of a troubled world who finds hope in a growing consensus that the generally accepted goals of society are peace, freedom, human rights, environmental quality, the alleviation of suffering and the rule of law."
You go, peanut farmer, and the rest of you think about that for this weekend.
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, www.usvisanews.com, 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.