When brothers don’t talk

Saturday, February 16th, 2013
By: Jonathan MontagJ.D.

Senator Joseph Lieberman’s great legacy, besides giving Jon Stewart years of material, is his efforts to create the gargantuan Department of Homeland Security (DHS) and split the former Immigration and Naturalization Service into three separate agencies, Citizenship and Immigration Services (USCIS), Customs and Border Protection (CBP), and Immigration and Customs Enforcement (ICE).

The breakdown in the agencies’ missions, simply put, is USCIS adjudicates benefits like temporary and permanent residence statuses and citizenship determinations, CBP polices the borders and internal checkpoints, and ICE enforces immigration law inside the United States (except for the internal checkpoints). The reality is that the missions of the organizations overlap and because they are separately run agencies, albeit part of the same department (DHS), their interactions are far from harmonious, causing all kinds of problems within DHS and for people whose need to deal with the agencies.

From my own practice of immigration law in San Diego, here are some recent adventures with the dysfunction of the agencies’ interactions.

Example #1: A man files for permanent residence with USCIS. While his application is pending, he is placed in removal proceedings. USCIS determines that because his case is now in immigration court, the adjustment of status should be handled there as when a person is in immigration court, for the most part it USCIS lacks jurisdiction. USCIS then denies the adjustment of status for lack of jurisdiction and sends the case to immigration court. In immigration court, DHS is represented by attorneys from ICE. ICE attorneys decide that, in conformity with current government polices to unburden the immigration court, it will move to terminate the removal proceedings so the case can be adjudicated by USCIS. The man and the court agree with ICE and the immigration court sends the case back to USCIS. But USCIS refuses to adjudicate the case because it already denied it and will not reopen it, thus forcing the man to re-file and re-pay for the already pending adjustment of status application. If ICE and USCIS actually worked together, nothing this stupid would happen.

Example #2: . USCIS is adjudicating a change of status application for a family. While it is pending, the family takes a trip to Mexico. Upon the family’s return, CBP decides the family’s conduct was contrary to the behavior of a family in their current status and prepares papers to send them to immigration court. However, CBP does not file these papers. Months later, the family then decides to go back to their country. It informs CBP that they are leaving and thus it is not provident to file the case in immigration court – it is silly to try to deport people who are not living in the United States. Unwilling or unable to understand this, long after the family leaves, CBP files the papers with immigration court. This necessitates ICE attorneys, at the instigation of their attorney, to file papers with the immigration court terminating the removal case against the family because the family does not even live in the United States. Had their been no intervention by their attorney, they would have been ordered removed because they did not attend their court hearing, as they now lived on the other side of the world.

Example #3: A man files for asylum with USCIS. While his case is pending he is encountered at a checkpoint run by CBP. CBP decides that notwithstanding the pending application, it will create documents to send the asylum-seeker to immigration court. It then hands the alien and his file to ICE. ICE detains the alien for a month and then decides to file the case with the immigration court despite the fact that there is an already-pending case with USCIS. ICE’s attorneys, who apparently do not communicate with ICE officers, then file papers with the immigration court to terminate the proceedings based on the fact that the asylum application was pending at the time of the asylum-seekers’s arrest and in compliance with the government’s policy of reducing the burden on the immigration court. Then, ICE has to get around to sending the file back to USCIS.

I could go on and on with examples – like ICE’s investigating fraud but USCIS setting up its own fraud detection bureau or ICE’s being in charge of detaining aliens but CBP having its own abysmal jails, or ICE’s taking positions contrary to the fact findings of USCIS….

These examples show that USCIS, ICE, and CBP do not understand each other’s missions and do not coordinate their actions. It is their customers who have to try to educate them, forestall their boneheaded moves, and suffer the stress, endure the improper enforcement of the law, and bear the costs of their errors. Ah, if only there were an organization that  oversaw all three, let’s say an Immigration and Nationality Service, that coordinated and rationalized the agencies’s moves. What a wonderful world it would be. Posted February 16, 2013.


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