A Department of Homeland Security Could be Just What Immigration Policy Needs

By Jonathan D. Montag*

Panic is setting in in immigration law circles. The politicians are reorganizing the federal government and creating a cabinet-level Department of Homeland Security which will contain most or all immigration functions. Considering that the September 11 terrorists were all foreigners and considering the lapses in immigration law enforcement, a reorganization, it is feared, will result in the creation of a department that adopts the view that immigration is a law enforcement problem and not a positive commercial, social, family, and moral opportunity. With this new mind-set, it is feared, generous immigration policies are doomed.

While this view seems prevalent in the gloom-and-doom statements and writings of interested observers, this result does not have to be the one that emerges after the reorganization. It is also a likely outcome that the reorganization will create what immigration advocates have been hoping for for the longest time – a more rational, more efficient, and fairer process. Consider the biggest complaints among immigration practitioners – all interrelated. First, inefficient management often blamed on limited resources and a lack of priority to immigration services. Second, ponderously long processing times leaving people in ambiguous statuses, struggling mindlessly to find temporary statuses, or being compelled to leave the country. Third, laws that encourage aliens to remain underground. Fourth, the confusing interplay between government agencies – INS, DOS, DOL, etc. Fifth, limited appellate rights to aggrieved aliens.

A centralized immigration function assigned to Homeland Security could solve all these problems. The INS has explained that the dramatically long processing times for most immigration benefits is a result of the lack of resources. The agency lacks the manpower, technology, and talent to deal with the volume of work it must process because Congress does not give it the money and priority it needs. Well, since September, immigration has gone from an afterthought of government to a chief priority. After all, a chief reason for a Homeland Security Department is to rationalize the administration of immigration laws. The President and Congress have stated on the record that they will spend whatever it takes to make the department work. This should mean that immigration functions will now get all the resources they need to become an efficient, high-tech, service-oriented part of the federal bureaucracy. With more money to solve problems will come shorter processing times. When it takes days instead of months to approve a student visa, issues of students going to school without approved visas will disappear. Problems of needing to travel while a change of status is pending will be no more if a change of status is adjudicated in a week. Issues of portability, EAD processing, and advance parole processing will be relics of the past when an adjustment application is adjudicated swiftly. So will many of the problems of falling out of status through no fault of the alien, when the INS is not sitting on a visa petition for months or years.

A great threat to National Security is persons who live in the shadows of the country. Without a doubt the 3 and 10 year bars at INA § 212(a)(9)(b) do more to encourage aliens to go underground than to encourage aliens to leave the country or stay out of the country. What lawyer would counsel an alien to leave his home and family to immigrate from abroad when departure would trigger a ten year bar? For that matter, it is often very difficult to advise Consular processing of an immigrant visa to a parent when the wait time can be more than a year – bar or not? With swift and efficient consular processing, people in the shadows can come out, go to their countries of origin, get their visas, and come back home and become full members of society rather than fugitives on the run.

Also, regarding those in the shadows are the large numbers of undocumented Mexicans. Unless the United States government really wants to spend the billions of dollars necessary to round up the millions of undocumented Mexicans in the United States and thereby alienate Mexico, a vital ally in the war on terrorism, and also wants to create a human tragedy on a grand scale, the National Security goal of getting people out of the shadows can be best achieved by some kind of amnesty for Mexicans. With a rational system without a 3 and 10 year bar and swift processing, people can go back to Mexico, get whatever visa is provided under amnesty, and come back to their de facto homes in the United States. Further, with processing swift, there will be no more anomalous statuses like “C-9" adjustment pending status or the need for long continuances in Immigration Court while an I-130 or I-360 or I-140 petition is pending, which put aliens in confusing and ambiguous statuses. One positive result of the elimination of much of this ambiguity caused by delays will be that a law enforcer will not have to be a scholar to properly determine if an alien is “legal” or not.

With a rational, unified system of immigration administration, an alien should not have to go home at all to process a visa. If it is acknowledged that it is more important to address humanely the threat to the country posed by a large underground undocumented population than it is to punish prior immigration law violations at the expense of innocent families and children, the laws can be changed to allow for the legalization of statuses in the United States without having to depart for Consulates abroad at all. Making 245(i) permanent (or eliminating much of INA § 245(c)) will do much to enhance National Security by getting aliens out from hiding. For the same reasons of efficiency and National Security that should make 245(i) permanent and prompt the elimination of the 3 and 10 year bars, so too should INA § 222(g) go away. With Consular functions and domestic functions merged, the rationalizing of the system will be enormous. No more applying twice for the same benefit – at the Consulate and again at the border. No more complicated rules about who can change status and where he or she has to do it. With a one-world adjudication system will come a one-world standard. Why should a “substantial investment” differ in Paris and Manila? Why should lawyers need to learn the quirks of the different consulates for the adjudication of the myriad of visas the consulates adjudicate? With one agency in charge, no more tap-dancing through the state employment office, DOL, INS, and DOS to get a visa. Rational, efficient, and swift processing could instead prevail.

Finally, if the entire process is under one set of laws in one agency, the prospects of a fair review process become greater. If the Department of Homeland Security is adjudicating the same type of visa in London and in Lincoln, what rational reason could there be to deny judicial review to an aggrieved petitioner (or beneficiary?) In London, but not Lincoln?

For years immigration lawyers have been hoping that one day immigration would become a priority and that the bigger picture would replace petty, punitive and politically-motivated laws. Now this day may be here. Immigration advocates should work to support a Department of Homeland Security that works to rationalize and make efficient a system that most agree is too arbitrary, slow, complicated, and contrary to the security, commercial, social, family, and moral needs and aspirations of the United States.

Jonathan D. Montag has been practicing Immigration Law in San Diego, California, since 1994. He works at the Law Offices of Jonathan D. Montag in San Diego. He graduated the University of San Diego School of Law in 1994. Mr. Montag is currently the San Diego AILA chapter’s treasurer and was the Vice Chapter Chair of the San Diego chapter of the AILA in 1999-1200. He edited AILA's 12 Annual California Chapters Conference Handbook in which his article,"Detention and Bond,” appeared. He lectured at the 2002 AILA Convention in San Francisco on the Subject of the 212(h) Waiver and had an article on this subject published in the 2002 Annual Conference Handbook. He lectured at the 2001 AILA Convention in Boston on the subject of aggravated felonies and taught at the State Bar of California’s Winter 2001 Section Education Institute on the subject of Immigration Consequences of Crime. He has previously written for AILA’s fall and midyear conference handbooks on the subject of Expedited Removal. Several of his articles have appeared on the ILW website. Back to Top

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