INS Reorganization Bill Passes House of Representatives
Posted May 03, 2002

On April 25, 2002, the U.S. House of Representatives (House) passed "The Immigration Reform and Responsibility Act of 2002," (H.R. 3231). This legislation, if enacted into law, would separate the service / benefits function of the INS from the enforcement functions. The Immigration and Naturalization Service (INS) would be abolished and its roles performed by newly created entities.

As long-time subscribers to the MurthyBulletin and regular readers of MurthyDotCom are likely aware, the break-up and restructuring of the INS has been proposed and debated for many years. The proposals have gained significant support following the attacks of September 11, 2001. Under the plan proposed in the legislation, the INS' current benefits functions would be carried out by the Bureau of Citizenship and Immigration Services. Enforcement functions would be under a separate Bureau of Immigration Enforcement. The two bureaus would come under the proposed Office of Associate Attorney General for Immigration Affairs.

The American Immigration Lawyers Association (AILA) has studied this and other similar proposals in depth. AILA is of the opinion that the legislation is positive in some regards and they support the separation of the service and enforcement functions of the INS. However, they believe that in order for the plan to work (a) the person in charge of coordinating and supervising the two bureaus must have sufficient authority or "clout," (b) there must be coordination between the two bureaus and, (c) both sides must be adequately funded. They are of the opinion that the current legislation does not meet these objectives. AILA points out the need for shared information systems, integrated policies, and coordinated infrastructure. While the actual written law would be uniform, much of immigration law involves policy positions regarding interpretation of the law. If there is inadequate coordination, AILA points out that there could be conflicting policies between the two bureaus in interpreting the same law.

Indeed, it is impossible to completely separate services from enforcement. The two functions are interrelated in what can be a fairly complex manner, as many cases involve issues of both. For example, one can have a matter pending before the Immigration Court in a removal case while also having an application with INS for some type of benefit. The outcome in the removal case often depends upon the decision on a benefit issued by the INS. Some benefits, such as Adjustment of Status to Permanent Resident, can be decided by both the INS and the Immigration Court, depending upon certain procedural issues. Also, in court proceedings the INS acts in an enforcement capacity as the "prosecutor." These are but a few examples of the interrelationship of the duties now performed by the different "sides" of the INS.

The changes, if and when they take place, will have far-reaching impact. As with most significant changes in structure and law, the process is not likely to be smooth and will require a series of "adjustments" to correct difficulties that are discovered after the fact. This change will impact the nation as the Immigration Service, or its replacement, makes decisions on benefits and enforcement that affect millions of immigrants, their families, and U.S. companies employing them.