Congress Poised to Pass Flawed Homeland Security Measure

American Immigration Lawyers Association

November 14, 2002

Contact: Ben Johnson (202) 216-2437


Washington, D.C.- Congress is poised to pass legislation that would create a Department of Homeland Security that includes provisions that would dramatically change our immigration functions. “While reforming our immigration functions are essential to help make us safer, H.R.5710 largely does not get it right,” said Jeanne Butterfield, Executive Director of the American Immigration Lawyers Association (AILA). “This bill will impede efficient, effective, and fair adjudications and enforcement practices that are essential to our economy, to reuniting families, and to our national security -- so that we know who is here and keep out those who mean us harm. ” “An effective immigration system is crucial to our national security,” commented Ms. Butterfield. “And a fair immigration system is fundamental to who we are as a people and a nation of immigrants.”

AILA long has called for the reorganization of our immigration functions based on principles that have been acknowledged to be central to effective reform. The principles are: coordinate the separated service and enforcement functions, place at the helm a leader with the authority to develop and administer immigration policy for the entire agency, and adequately fund our immigration functions.

Unfortunately, in contrast to the Homeland Security measure that passed the Senate Governmental Affairs Committee, H.R. 5710 includes several extremely troubling provisions. Most importantly, the bill fails to provide for a high-level official who is focused on our nation’s immigration policy, relegates immigration services to a bureau that lacks its own Under-Secretary, provides little or no coordination between immigration enforcement and services, and fails to adequately protect the important role of our immigration courts.

“Effective reform of the INS and an effective Department of Homeland Security require that our immigration functions be both elevated within the new department and reformed,” said Ms. Butterfield. “This bill does neither. We cannot fracture the immigration agency into completely separate pieces as this measure does -- with enforcement swallowed up in one huge division and services in another, and expect coordination, accountability, or adequate attention to the immigration agency’s critical service and enforcement functions.”

With regard to our immigration courts, this bill, while maintaining the Executive Office for Immigration Review (EOIR) within the Department of Justice, does not recognize the need for checks and balances in our immigration system. The bill codifies the existence of the courts and the Attorney General’s authority to control them, but fails to address key concerns such as the role and independence of the courts and the impartiality of the judicial process. “By failing to include language that provides a statutory framework for the role of immigration courts,” said Ms. Butterfield, “H.R.5710 has missed an important opportunity to reform our immigration courts to ensure efficiency and accountability, restore public confidence, and safeguard due process.” “This is especially important,” she continued, “because in the majority of immigration cases, the immigration courts provide the only opportunity to review the decisions of low-level immigration officers. Immigration judges offer critical protections against mistake or malfeasance.”

H.R. 5710 also raises other concerns with regard to the granting of visas, and excludes asylum protections and provisions reflecting the need for special treatment of unaccompanied minors that had been in the Senate committee-passed bill. In addition, the bill creates a weak civil rights office lacking the power to investigate violations committed by the Department of Homeland Security.

H.R. 5710 does include two helpful provisions. One charges the department with ensuring that the overall economic security of the United States is not diminished by efforts, activities and programs aimed at securing the homeland, and that the functions of the agencies and subdivisions within the Department that are not directly related to securing the homeland are not diminished or neglected. The other appoints a Special Assistant to the Secretary who will be responsible for creating and fostering strategic communications with the private sector to enhance the department’s primary mission. This Special Assistant would create and manage private sector advisory councils to advise the Secretary on homeland security policies, regulations, processes and actions that affect participating industries and associations.

“H.R. 5710 fails to respect our tradition as a nation of immigrants, our dedication to respecting individual rights preserved by the Constitution, and the importance of immigrants to our internationally based economy”, said Ms. Butterfield. “We need to recognize that the goals of a new Homeland Security Department cannot be achieved until our immigration laws are reformed to make legality the norm.”


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Founded in 1946, AILA is a nonpartisan, nonprofit organization that provides its Members with continuing legal education, information, and professional services. AILA advocates before Congress and the Administration and provides liaison with the INS and other government agencies. AILA is an Affiliated Organization of the American Bar Association.

American Immigration Lawyers Association
918 F Street NW, Washington, DC, 20004-1400
Phone (202) 216-2400; Fax (202) 783-7853


Cite as AILA Doc. No. 02111433.