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Letters to the 107th Congress

September 13, 2002

Dear Senator:

The Bush Administration recently has proposed the establishment of a new Department of Homeland Security (Homeland Security), which would bring together numerous government agencies. We write to express concerns and reservations about the proposal as it would affect Immigration and Naturalization Service (INS) functions. Under the Administration's plan the entire INS, including both its enforcement and service activities, would be transferred from the Department of Justice (DOJ) to Homeland Security. The Bush proposal authorizes the President to transfer the Executive Office for Immigration Review (EOIR) from DOJ to Homeland Security as well. It also gives Homeland Security authority over visa issuance, but provides the new secretary discretion to permit State Department Consular Officers to carry out visa issuance operations.

The House version of the homeland security bill (H.R. 5005) would keep immigration service functions and EOIR in DOJ. The Senate version of the legislation (S. 2452) also would keep EOIR in DOJ; however, it would consolidate all other immigration activities within Homeland Security. Efforts to transfer EOIR and other immigration functions to Homeland Security are expected on the Senate floor in the near future.

Our nation of immigrants deserves proper governance of the immigration system. The United States remains the beacon of hope for immigrants and refugees who make important contributions to our society and achieve their personal dreams in this land of liberty and opportunity. Unfortunately, the tragic events of September 11, 2001 remind us that others wishing to do harm also may seek to enter the United States. Because of this, there is an urgent need for legislation to improve the implementation of our immigration laws and policies. The immigration system must improve its capacity to carry out the many enforcement, service and review functions required of it. The aim of immigration policy is to facilitate admissions that are beneficial to our national interests and consistent with our international obligations, while guarding against entry of those whose admission is unauthorized or poses a threat to our national security.

Placing all of these functions within Homeland Security would not further good immigration policy and could undermine efforts to achieve true homeland security. Immigration management includes two core functions: border and interior enforcement of the immigration laws (enforcement) and adjudication of immigration, asylum and naturalization applications (services). It also requires an independent immigration court process to ensure that those agency officials implementing policies carry them out properly and in accordance with Congressional intent. These are separate, although interconnected activities, with each function demanding vastly different skills, training, and resources. Combining these diverse immigration-related functions into one super-agency that is focused on preventing threats to public security would distract the new department from its core mission and also diminish immigration service and adjudications functions that are severely backlogged and delayed.

Adherence to the rule of law and due process are critical to the government's successful implementation of the immigration functions. The proper adjudication of the rights of asylum seekers, refugees, immigrants, and naturalization applicants requires an agency culture respectful of the rule of law. Adjudicators decide the most important questions in the lives of those seeking protection, family reunification, and livelihoods in the United States. These decisions significantly impact the interests of U.S. citizen spouses, children, and parents, as well as U.S. businesses. In order to carry out the will of Congress responsibly, the adjudicators must be experts in assessing who meets the statutory definitions of refugee and immigrant, and in applying the case law developed through the review of administrative decisions. These adjudicators must be experts as well in implementing a fair process, in order to ensure that those who may be at risk if they returned to a country of persecution have a meaningful opportunity to assert their claims for protection. In addition, the process should provide others with an opportunity to assert their claims for family reunification.

Giving a national security agency the responsibility for determining who enters our nations of immigrants is fraught with dangers and will not advance national security. The focus of the proposed Homeland Security agency-to protect the United States from terrorist attacks-well deserves to be supported. Its four major offices would be: Chemical, Biological, Radiological, and Nuclear Countermeasures; Emergency Preparedness and Response; Information Analysis and Infrastructure Protection; and Border and Transportation Security. As configured and given its principal mandate, the Border and Transportation Security office would make complex decisions involving visa issuance, determinations of eligibility for immigrant admissions, asylum, and naturalization; but those functions are likely to be secondary to protecting the borders. As a result, many legitimate tourists, business visitors, highly-skilled workers, family immigrants, and refugees may be denied the opportunity to enter the United States or become citizens. Considerable economic and social damage to important U.S. sectors may be done if Homeland Security is unable to perform the adjudications of these applications in a timely and effective manner. Yet, if Homeland Security were to expend the human and financial resources needed to properly carry out the immigration and naturalization service functions, the result also would be detrimental because these efforts would come at the expense of the new agency's principal responsibility-to protect the security of borders.

Accordingly, Congress should keep the immigration services function at DOJ or consider consolidating them into an independent agency, and provide the resources necessary to fairly and effectively carry out those functions.

Placing the immigration court and administrative review functions in a national security agency will threaten the integrity of the immigration system and will not improve national security. Accordingly, Congress should establish an independent immigration review agency or maintain the review function at DOJ. Formal hearings before impartial immigration judges with administrative and judicial review guard against incorrect and arbitrary decisions and promote fairness, accountability, legal integrity, uniform legal interpretations, and consistency in the application of the law both in individual cases and across the system as a whole. The mission of the administrative immigration judges at EOIR would not fit well with the mission of Homeland Security. Evidence, witnesses, attorneys, statutes, regulations, legal arguments-this is the everyday life of EOIR. The legal process and the substantive law are quite meaningful to these arbiters of justice-precisely because their application of the immigration laws affects the destinies of individuals facing persecution or separation from family and chosen country.

Placement of the immigration court system in Homeland Security would undermine the independence of the immigration judges and the integrity of the administrative appeals process. The agency responsible for enforcing immigration laws should not be responsible for assessing its own performance-a problem in the current immigration system. Meaningful and effective review must be independent. This is critical both to the reality and the perception of fair and partial review. The daily decisions made by Immigration Judges and Board of Immigration Appeal members have serious effects-sometimes implicating even life and death-on people's lives. Adherence to the rule of law alone should govern such decisions.

Transferring EOIR to Homeland Security could result in a major shift in the operations of these quasi-judicial proceedings. Security concerns may take on a higher priority than is required or appropriate in the administration of immigration justice. Attorneys may be regulated pursuant to security priorities that develop in other departmental contexts but are inappropriate in immigration proceedings. In short, Homeland Security's central mission may predominate the immigration review function.

In fact, moving EOIR to Homeland Security is not needed to ensure that the security of the American people is protected by EOIR, and such a move could do serious damage to the government's ability to decide immigration cases in a fair and judicious manner. In only a few of the more than a quarter of a million cases EOIR decides annually does a security issue arise. When those issues arise today, there are procedural options that can be utilized for protecting the nation's security. It is not necessary, however, to house this adjudicative function with Homeland Security. In addition an independent Executive Branch agency would possess the flexibility and coordination capacity needed to work well with the other agencies in the immigration system. Most importantly, such an agency for immigration review would provide the independence that our immigration system merits.

Thank you for the opportunity to provide our views.


Esther F. Lardent
ABA Commission on Immigration
Policy, Practice and Pro Bono

107th Congress Letters Home

Commission on Immigration Policy, Practice, and Pro Bono
740 Fifteenth Street, NW
Washington, DC 20005
ph: 202-662-1008

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