Immigration Policy and the Homeland Security Act Reorganization: An Early Agenda for Practical Improvements

On November 25, 2002 Congress passed the Homeland Security Act, which effectively overhauled the former Immigration and Naturalization Service (INS) and called for a massive reorganization of immigration functions under the newly formed Department of Homeland Security (DHS). Although a debate over how to effectively divide the functions of immigration enforcement and services had been brewing for years, President George W. Bush’s sweeping proposal went in the opposite direction: seeking to bring both functions under the auspices of a single department, the DHS. This report outlines the key changes incurred under this massive reorganization highlights some major points of concern and offers a set of policy recommendations aimed at remedying some of these concerns.

The report finds that the Act initially lodged all functions pertaining to immigration enforcement under the Directorate for Border and Transportation Security (BTW) and the Bureau of Border Security (BBS), while service functions such as processing applications for naturalization, asylum, and adjustments of status fell under the Bureau of Citizenship and Immigration Services (BCIS) and a new Ombudsman Office. Shortly thereafter, the report notes that the President used his authority, designated under the Act, to regroup enforcement functions under two separate units − the Bureau of Customs and Border Protection (BCBP) and the Bureau of Immigration and Customs Enforcement (BICE) − tasked with matters concerning border and interior enforcement, respectively. Recognizing the need for coordination among enforcement and service officials, the Act established a Director of Shared Service.

Among the key points of concerns related to this massive reorganization are: the unified immigration policy structure; the uncoordinated legal advice between various agencies; the needless creation of the Ombudsman Office; the respective authorities of the Attorney General and the Secretary of Homeland Security; and the extensive powers over immigration matters vested to the Attorney General. To remedy these concerns, the author suggests: the expansion of the Shared Services under a new Chief of Immigration Policy; the unification of all legal advice on immigration law under the auspices of a single General Council with authority to advice CIS, CBP and ICE; diverting as few resources as possible away from the central functions of CIS to the Ombudsman Office; the transfer of functions directly from the Attorney General to the Secretary of the DHS; and rethinking the powers of the Attorney General, potentially making EOIR independent or alternatively transferring it to DHS.