Department of Homeland Security Established

IMMIGRATION LAW & POLICY

Obtaining Lawful Permanent Residence Status

DEPARTMENT OF HOMELAND SECURITY ESTABLISHED
Immigrants' Rights Update, Vol. 16, No. 8, December 23, 2002

Legislation that President George W. Bush signed into law on Nov. 25, 2002, creates a new cabinet-level department, the Dept. of Homeland Security (DHS), and puts into motion the most massive reorganization of government in 50 years. The new law merges 22 separate agencies that have a total of 170,000 employees.

Organization. The DHS will be headed by a secretary, with a deputy secretary as his or her first assistant. The organization is structured around four directorates, each headed by an undersecretary: Information Analysis and Infrastructure Protection; Science and Technology in Support of Homeland Security; Border and Transportation Security; and Emergency Preparedness and Response.

Under previous law, immigration enforcement and immigration services were the responsibility of the same agency-the Immigration and Naturalization Service-within the Dept. of Justice (DOJ). Under DHS reorganization, that will no longer be the case. Section 471 of the statute abolishes the INS. Immigration enforcement (Border Patrol, detention and removal program, intelligence program, investigations program, and inspections program) and immigration services (adjudications of visa petitions, naturalization petitions, asylum and refugee applications, service center adjudications, and all other INS adjudications) will now be housed in the DHS. But these functions will be undertaken by different parts of the agency, and these branches may be assigned varying levels of importance within the broader agency structure.

Under sections 441 and 442, immigration enforcement activities are located in the Bureau of Border Security within the Border and Transportation Security Directorate. This bureau will be headed by an assistant secretary who reports directly to the undersecretary for Border and Transportation Security. In contrast, immigration services are not located in any of the directorates. They are instead housed in a free floating component called the Bureau of Citizenship and Immigration Services, which will be headed by a director who reports directly to the DHS deputy secretary. That the Services Bureau is not contained in any directorate reflects the difficulty of fitting immigration services within the basic structure of an agency whose principal mission is to combat terrorism. But it also indicates the relatively low priority given to immigration services, which, as a tiny part of the DHS, will have to compete with all of the big directorates in gaining the attention of the DHS deputy secretary.

The law on its face does not address explicitly how the problems endemic to the historically dysfunctional INS will be resolved. But several provisions indicate at least a recognition that problems exist. Section 451 (a)(5) provides for pilot programs to eliminate and prevent backlogs in immigration benefit applications. Section 458 requires elimination of the immigration backlog within one year of enactment of the DHS law. Section 459 requires the DHS secretary to report to Congress within one year of the law's enactment on how the Services Bureau will "efficiently, fairly, and within a reasonable time" complete its adjudications functions.

Section 475 provides for a director of Shared Services to coordinate resources of the enforcement and services bureaus, including information resources management, records and file management, and forms management. Each bureau will have a chief of Policy and Strategy to coordinate immigration policy issues with the other. Each bureau will also have its own legal advisor. It is not clear how policy differences will be resolved, and policies for critical areas such as asylum may well differ based on the differing functions of the bureaus.

Investigations of Violations. Immigrants' rights, human rights, and civil rights organizations had advocated for a strong civil rights office, to be headed by a high ranking official with the power to investigate civil rights violations. This office was not established, and advocates will have to look to the law's weaker provisions to ensure that immigrants' rights are protected. Despite these provisions' weakness, the limited oversight mechanisms they provide should be vigorously pursued to maximize their effectiveness. In addition, these provisions do incorporate certain congressional reporting requirements, which provide some opportunity to highlight the inadequacy of protections afforded by the statute.

First, section 705 provides only for an officer for Civil Rights and Civil Liberties, who can "review and assess information alleging abuses of civil rights, civil liberties, and racial and ethnic profiling by employees and officials" of the DHS. The officer may, through the Internet and media, make the public aware of the responsibilities of the office and provide information on how to contact him or her. Significantly, the officer does not have the power to investigate such violations. The officer must report annually to Congress on allegations of abuses and actions taken by the DHS in response to them.

Second, the statute provides in section 452 for a Citizenship and Immigration Services ombudsman, who reports directly to the DHS deputy secretary. The ombudsman is to assist individuals and employers in resolving problems with the Services Bureau, identifying problem areas in dealing with the bureau, and proposing changes to the bureau's administrative practices to mitigate these problems. The ombudsman must report annually to Congress and provide an inventory of problems and solutions, as well as reasons for inaction and recommendations. The reports must be submitted directly to lawmakers, without prior comments or changes from the DHS secretary, deputy secretary, or head of the Services Bureau. The statute also provides for local ombudsmen who operate independently of the Services Bureau. Significantly, the Bureau of Border Security, which carries out enforcement activities, contains no such ombudsman provisions.

Third, the DHS has an inspector general (IG) appointed to it under the Inspector General Act of 1978. But the IG's authority is curtailed in section 801 of the DHS law. The DHS IG is under the secretary's "authority, direction, and control" regarding audits, investigations, or issuance of subpoenas requiring access to certain "sensitive" information, and the secretary may prohibit these activities altogether.

Under section 443, the undersecretary for Border and Transportation Security has authority to conduct investigations of noncriminal allegations of misconduct, corruption, and fraud involving employees of the Bureau of Border Security. Under section 453, the director of the Services Bureau has similar responsibilities for that Bureau. But the functions authorized by both provisions amount to the department investigating itself.

Information Sharing. The statute gives the DHS access to a vast array of information from the public and private sectors. Under section 201 (d), the DHS's tasks are to "access, receive, and analyze law enforcement information, intelligence information, and other information from agencies of the Federal Government, State and local government agencies (including law enforcement agencies), and private sector entities." Some agencies that are being folded into the DHS, such as the INS, maintained investigative, intelligence gathering, and data sharing systems of their own. So even though the statute does not give new authority to collect information, the DHS will have extensive access to information for data mining and data analysis. An example of data mining is Total Information Awareness (TIA), a program being developed in the Dept. of Defense by the Defense Advanced Research Projects Agency (DARPA) to gather and analyze information from public and commercial databases. Reports recently appeared in the press indicating that this program was authorized by the DHS legislation, but its development actually preceded the law's passage. The DHS would, however, appear to have access to its work, and similar activities carried out by other agencies.

Privacy. Section 221 requires the DHS secretary to establish procedures for information sharing under the statute. These procedures are to limit redissemination to ensure that information is not used for unauthorized purposes. They are also to ensure the secrecy and confidentiality of such information, protect the statutory and constitutional rights of individuals who are subjects of such information, and provide data integrity through timely removal and destruction of obsolete or erroneous names and information. Section 222 requires the secretary to appoint a privacy officer who has primary responsibility for privacy policy. Among other duties, the officer must report to Congress about DHS activities that affect privacy, including complaints of privacy violations, implementation of the Privacy Act of 1974, internal controls, and "other matters." The statute, however, does not authorize the privacy officer to take complaints or conduct investigations.

The statute contains several positive provisions with respect to privacy. Section 880 expressly forbids the Terrorism Information and Prevention System (TIPS), which would have enlisted delivery personnel, utility workers, and other civilian personnel to report on suspicious activities of their customers. Section 1514 provides that "[n]othing in this Act shall be construed to authorize the development of a national identification system or card."

Unaccompanied Minors. Section 462 of the act transfers matters related to unaccompanied minors from the INS to the Office of Refugee Resettlement of the Dept. of Human Services. But the section also provides that nothing in the act should be construed to transfer responsibility for "adjudicating benefit determinations under the Immigration and Nationality Act" from the DOJ, DHS, or the Dept. of State. Moreover, the act does not provide for protections that were sought by advocates for unaccompanied minors, including the appointment of counsel and guardians ad litem.

THE CHANGES BROUGHT ABOUT by the DHS legislation are substantial. The INS is to be reorganized in ways different from those hoped for by immigrants' rights advocates. But there is a clear recognition of the failures of the INS in its old form, and the statute does establish some processes and mechanisms to bring to light any new malfunctions. Advocates should make full use of the avenues created by the law to ensure fair treatment for noncitizens.