Immigration bureaus still having trouble coordinating on policy implementation.

Sunday, May 15th, 2011
By: Jonathan MontagJ.D.

For years before it actually happened in 2003, many immigration-law pundits advocated for the division of the former Immigration and Naturalization Service (INS) into different components. The idea was that the cultures of benefit granting and enforcement were incompatible. When the Department of Homeland Security (DHS) was created in 2003, the immigration functions of the INS were moved from the Department of Justice (DOJ) and given to the new DHS. Within DHS, INS functions were, like a dream come true to these pundits, divided into three components, U.S. Citizenship and Immigration Services (USCIS) for benefit adjudications, Immigration and Customs Enforcement (ICE) for enforcement inside the United States, and Customs and Border Protection (CBP) for enforcement at ports of entry and securing the borders. Ever since, these agencies have been in negotiation and discussion about who is responsible for tasks that overlap and to allocate responsibilities when handling them separately could be wasteful – such as, for example creating an apparatus to answer Freedom of Information Act requests which seems to be a perpetual work in progress.

In the pre-2003 days, there was plenty to complain about with INS, but there was never doubt about who was in charge. If it had something to do with immigration, the agency responsible was INS. Now, if there is a policy change, often the ramifications of the change throughout the immigration-law universe are not explored because the different components (bureaus) of DHS coordinate poorly at times and it often appears that they administer the laws without appreciation of how changes impact other immigration organizations. Here are two examples.

First, ICE has been somewhat maverick in trying to get cases out of immigration court (which, incidentally did not make the move to DHS and is still part of DOJ) to reduce backlogs in the system. These memos, one by former ICE Chief Counsel William Howard, called the Howard Memo, and another by the current ICE Director, John Morton (technically, Assistant Secretary of Homeland Security), called the Morton Memo, call for ICE’s agreeing to allow immigration judges to terminate removal proceedings for aliens seeking adjustment of status when there are no serious adverse factors in the case. The complications of this policy caused by the interplay of organizations within DHS have yet to be ironed out. To get a case terminated, a petition must be filed by a U.S. citizen or resident relative who can ask for the foreign relative to receive a permanent resident visa. In most cases the petition must be approved. I visa also must be available. That is a USCIS function. Thus, USCIS must handle the petition for the benefit of a person in removal proceedings. Because of the person’s being in removal proceedings, USCIS must process the petition outside of its normal processing scheme. Then, when it is approved, ICE’s chief counsel, attorneys that handle cases in immigration court, must learn of the petition’s approval and then arrange with the immigration court for termination. In the meantime, other papers, the application packet of forms and documents to become a permanent resident, are filed with the immigration court. Then, once the immigration court terminates the case, ICE must forward its file to USCIS for adjudication of the foreigner’s application for permanent residence. USCIS must also merge the petition file with ICE’s file.

I have had two such cases in recent weeks and ICE has botched them both. Very soon after the immigration judge terminated the cases, I spoke with USCIS officials through Infopass and informed them that these cases were coming their way and to please schedule them for interviews. In the first case, I learned that the case was not with USCIS or even in San Diego, but rather was sent to DHS’s storage facility for immigration files in Missouri. I went back two more times until the case was finally retrieved from Missouri. The second time I tried to be even more pro-active by speaking to an officer nearly immediately after the immigration judge terminated proceedings. In this second case, I was assured the case was en route from ICE to USCIS and would be scheduled for an interview by USCIS. The Infopass officer assured me that USCIS did not need to request the file as it was en route to them. It is not clear whether ICE shipped these files to the wrong place or whether USCIS received them from ICE and then routed them to Missouri for deep storage, not realizing that there were pending applications in the files. Coordination between ICE chief counsel, ICE, USCIS, and the immigration court is poor and this was the result. A process meant to expedite processing for certain aliens to avoid administrative costs is so inefficient that some foreigners opt to just keep their cases in immigration court because the new, cheaper, expeditious route takes too long – longer than the woefully backlogged immigration court route. Try to point out the problem and the immigration court says it is not its concern what happens when the case is terminated, chief counsel’s office says its procedures include giving proper instructions to ICE, USCIS says it can only act on a file when it gets it, and ICE, as is their custom, says nothing much.

Here is a second example. Recently DHS announced the ending of the National Security Entry-Exit Registration System (NSEERS) program. Technically, the program still exists but no countries are designated for application of the program. Under NSEERS, foreigners from certain designated Muslim countries had to register when entering the country, after being in the country, and when leaving the country. The program evolved over the years and the details became quite complex. Registrants could only leave through certain airports or land ports and failing to comply could lead to deportation or exclusion from the United States.

It seems that the termination of NSEERS was a CBP initiative. Their part of the program was the border and airport part so ending the program was easy for them to implement – no more requirements for entry and departure registration. However, NSEERS also affected USCIS and ICE. Failing to register was a potential ground of ineligibility to change or adjust to a new status. When a foreigner seeks a benefit, USCIS, which determines eligibility issues, has to decide whether failing to register many years ago makes the alien ineligible to receive a benefit today. ICE had the authority over registrations inside the United States. While the program was in existence, aliens could ask ICE to late-register them, eliminating the problem of having failed to register. However, now that DHS eliminated NSEERS, ICE no longer late registers. This raises many questions:

  • Is having failed to register still a potential ground for denying a benefit?
  • Does USCIS have new instructions now that NSEERS has ended as to whether failing to register creates eligibility issues?
  • If someone did not register and it still matters, is there a mechanism to cure the problem?
  • Will it be ICE or USCIS or CBP that will manage this mechanism? If there is no mechanism, what will ICE’s position be regarding seeking the removal of people who failed to register?
  • Is it rational that while the NSEERS program was in existence, foreigners had the remedy of late-registration if they did not register and now that the program is terminated, there may be no mechanism, making those who failed to register better off if the program was not suspended than they are now that it is suspended?

It is like if you had to wear a scarlet rag because of a conviction for adultery which meant a loss of many freedoms and privileges, but a forgiveness program existed to allow for the removal of the rag and the accompanying legal disabilities. Then, a law was passed decriminalizing adultery. As part of decriminalization, without any thought, the forgiveness program also ended, so those marked with shame continued to suffer despite the decriminalization. Or imagine a guy who was sent to an Egyptian jail for defaming President Mubarak and now has him as a cell mate.

Because there is no one at the top coordinating the immigration bureaus of ICE, USCIS, and CBP who is familiar with the big-picture interaction of the bureaus, time wasting and life-disrupting mistakes happen all the time. Because no one is in charge to fix them, they don’t get fixed. DHS should create an office with broad authority to coordinate the bureaus. This coordinating body will need a name – three letters that stand in everyone’s mind as the U.S. government’s immigration agency. Any ideas? Posted May 15, 2011.



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