Resolution on Immigration and Homeland Security

Approved by AILA Board of Governors
September 14, 2002
Toronto, Canada

Resolution: AILA strongly opposes the inclusion of our nation’s immigration functions within the newly proposed Department of Homeland Security (DHS).   America must continue to be strengthened and enriched by immigrants who come to our country to contribute their talents and skills, to unite with their families, and to seek protection from persecution.  Putting INS into the DHS   would treat immigrants primarily as a matter of security concerns.

AILA strongly condemns those who would misuse the tragedy of 9-11 to advance their anti-immigrant agenda.  Immigrants come to America to build our country, unlike terrorists who intend to harm us.  Our laws, actions and policies must reflect this important difference.

AILA continues to strongly advocate the reorganization of INS, consistent with our longstanding position, to separate the service and enforcement functions of the agency, to coordinate those functions by providing a person in charge with clout, and to assure adequate funding for each of the separate functions. 

Any reorganization of INS must incorporate respect for foreign nationals and their civil and due process rights through fair and judicious application of our laws.

Reorganization of INS must also assure that at the local level, the service and enforcement functions are each accountable and accessible through a district director or local supervisory contact.

AILA strongly advocates that if INS is moved to a new DHS, the reorganized agency must be placed within its own separate division within the DHS and must be headed by a strong leader who will coordinate the service and enforcement functions.

AILA also advocates that the EOIR should remain outside the DHS and steps be taken to create an independent immigration court system.

Proponents:  AILA Executive Committee

Background:  The September 11 terrorist attacks refocused the debate on how this nation’s immigration functions are to be organized, with Congress and the Administration agreeing that most, if not all, of our immigration functions need to be included in the proposed Department of Homeland Security (DHS).  The issue thus quickly became how best to organize our immigration functions within the new department to ensure the provision of services and fair enforcement.

Prior to the attacks, various measures were introduced in Congress that would reorganize the Immigration and Naturalization Service. AILA strongly supported a bipartisan bill, S. 2444, introduced by Senators Edward Kennedy (D-MA) and Sam Brownback (R-KS) that met the criteria for reform:  one person in charge of our immigration functions and coordination of the separated enforcement and adjudication activities. After the attacks, Congress and the Administration focused on how to reorganize our immigration functions and relate them to the proposed Department of Homeland Security.  During these discussions AILA argued that our immigration functions should remain outside of the proposed new department and that placing them within the department would constitute a paradigm shift of enormous consequences:  immigrants would then be viewed through the lens of terrorism and security threats.  AILA also emphasized that the need for an effective, fair, and efficient reorganization of the INS is necessary regardless of whether our immigration functions are placed within or outside of the new department.   

AILA has longstanding positions on reforming the Immigration and Naturalization Service and has passed several resolutions (attached) on restructuring our immigration functions. AILA’s attention to this issue reflects the understanding that how our immigration functions are reorganized will impact every aspect of immigration. 

The House and Senate have taken different positions on how immigration should be reorganized within the Department. Among other provisions, the House homeland security measure, H.R. 5005, splits up the INS, with services remaining in Justice and enforcement and inspections going into the Homeland Security Department.  AILA has expressed concerned about the consequences of separating services from enforcement and inspections. While at first blush such a restructuring appears to make sense, in actuality, services will be ill-served by this arrangement.  Policy guidance and legal opinions will come from Homeland Security, and the lack of coordination between services and enforcement will harm both functions.

The Senate is expected to mark-up its version of Homeland Security legislation (S. 2452) in September.  The immigration provisions in S. 2452 maintain immigration functions together in a fifth division and incorporate S. 2444, the bipartisan Senate bill, as the way to structure immigration functions.  The bill also creates within the Department of Justice the Agency for Immigration Hearings and Appeals that would include the Board of Immigration Appeals.   

Discussion:  AILA’s support for the fifth division organization of immigration functions within the Department of Homeland Security, maintaining EOIR outside of Homeland Security, and working toward an independent court are based on the following considerations.

1.  If immigration functions are placed within Homeland Security, then these functions need to be kept together within one agency, coordinated but separated under one strong leader, within a fifth division.   Effective reform of the INS and an effective Department of Homeland Security requires that our immigration functions be both elevated within the new department and reformed.  Specifically, S. 2452 places the functions of the INS within a separate “fifth division,” the Directorate of Immigration Affairs, headed by an Under Secretary for Immigration Affairs who would be subject to the authority of the Secretary of Homeland Security.  The Under Secretary would oversee the Bureau of Enforcement and Border Affairs and the Bureau of Services.  This reorganization recognizes that:

• Elevating, unifying, and reforming our immigration system within the Department stands the best chance of creating an agency that effectively protects our nation and respects our tradition as a nation of immigrants.
   
• We cannot split the immigration agency into entirely separate pieces, either within the Department of Homeland Security or across other Departments, and expect coordination, accountability, or adequate attention to the agency’s critical service and enforcement functions. 
   
• Elevation of the INS within a fifth division achieves the necessary balance between enhancing our security, securing our borders, and ensuring the effective, efficient and fair implementation of our immigration laws.  
   
• Placing our immigration functions within the largest division in the Department, the Border and Transportation Security division, as the Bush Administration proposes, is problematic for both our immigration functions and the other functions in that division. If these agencies were lumped together, the Under Secretary for such a division would be overwhelmed by an unmanageable staff and too diverse a mission. Furthermore, burying our immigration functions within this large division would make it extremely difficult to focus effectively on repairing and strengthening both enforcement and adjudications. 

2.  EOIR must remain outside of the Department of Homeland Security and be constituted as an independent agency: AILA strongly opposes including the Executive Office for Immigration Review within the proposed Homeland Security Department.  It is vitally important that our immigration courts be independent, impartial and include meaningful checks and balances.  Any proposal that would include the EOIR in a new homeland security department is going in the absolutely wrong direction.  

Bringing the EOIR within the new Homeland Security Department raises many objections. S. 2452 recognizes this fact and creates a statutory immigration court within DOJ while moving the INS into the proposed Homeland Security Department. The bill recognizes that having judges and prosecutors report to the same boss creates an inherent conflict that jeopardizes the integrity of the system. Such a transfer responds to the growing perception that the current system is inherently biased.

S. 2452 also would help to enhance administrative efficiency, increase accountability and facilitate Congressional oversight of our immigration functions by providing a statutory immigration court that is controlled by a presidentially-appointed Director.  The Director would be free to focus on judicial priorities, ensuring administrative efficiency while protecting due process without the mission conflict of prosecutorial and law enforcement responsibilities.  A statutory immigration court, which is separate from where immigration functions are housed, will also aid Congress and the American people by providing an independent source of statistical information to assist them in determining whether the mandates of our immigration functions are being carried out fairly, impartially and efficiently

AILA testified in February 2002 before the House Subcommittee on Immigration and Claims against a rule that would make a number of procedural reforms at the BIA that, taken together, would amount to a denial of due process. With this rule now in effect, and in the current climate, S. 2452 provides the foundations for the creation of an independent court.   AILA is on record advocating the creation of a separate, Executive Branch agency that would include the trial-level immigration courts and the BIA. Such an independent agency would best protect and advance America’s core legal values by safeguarding the independence and impartiality of the immigration court system.    

Specifically, AILA believes that the creation of an independent immigration court should be based on the following considerations:

• The independence and impartiality of the immigration judges and the immigration court system must be affirmed;

• Proposed changes must facilitate, not erode, immigrants’ access to the BIA and federal courts, consistent with due process considerations in our justice system; and 

• Such changes must also enhance efficiency, increase accuracy, acceptability, accountability and consistency, and facilitate oversight and review.

3. Notwithstanding how our immigration functions are reorganized and structured due to the establishment of the new Department of Homeland Security, it is important to preserve at the national and local levels the efficient, effective and fair provision of services and enforcement.  Effective leadership  must be preserved at all levels.  As our immigration functions are radically restructured and changes are evident at all levels of government, it is important that individuals receive the benefits they deserve and enforcement be conducted in a fair and lawful manner. Along with ensuring the full provision of services, it is essential that each operation and officer remains accountable and willing to address problems as they arise that will inevitably result from such a massive reorganization.

4.  Immigration issues that Congress and the Administration develop and implement within or outside of the proposed Department of Homeland Security must embrace the following principles:

• The United States must continue to support immigration and welcome family- and employment-based immigrants and nonimmigrants, and refugees and asylees. Immigration is in our national interest. Both family- and employment-based immigration should continue at current or enhanced levels that reflect the need to reunite families, fulfill the needs of American business, and maintain America’s economic security (which contributes to our nation’s well-being and national security).  The U.S. also must continue to offer at enhanced levels safe haven to refugees and asylees to meet our moral and international obligations.
   

• Immigration is one factor that can contribute to our national security by helping to enhance our intelligence capacity, both within and outside of the U.S. Our best protection derives from developing layers of protection that keep targeted people from entering the U.S.  Such measures are more effective and easier to implement than are measures that focus on persons after they enter the U.S. In all cases, it is important to keep out people who seek to do us harm, not those seeking to come to the U.S. for reasons that people always have come here, including reuniting with family, working, or escaping persecution.  These immigration-related measures to enhance our security must meet our due process and civil liberties concerns and standards. 
  
   
• An immigration system that works is essential to our national and economic security. Such a system needs to be effective, efficient, fair, and adequately resourced so as to enhance security, facilitate the flow of people and commerce at U.S. borders, and deal appropriately and in a timely manner with pending petitions and applications. National security is enhanced when our immigration laws work to facilitate the movement of people and goods as well as the adjudication process.

Implementation:  If adopted, this resolution will guide AILA members and staff in advocacy efforts directed at legislative changes. Promulgation of regulations, efforts with the media, and work with Congress, the Administration, INS, DOS, DOL, and other government agencies.

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