A Comparative Analysis of the Immigration Functions in the Major Homeland Security Bills
Congressional research reportSep 30, 2002
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A Comparative Analysis of the
Immigration Functions in the
Major Homeland Security Bills
September 30, 2002
Lisa M. Seghetti and Ruth Ellen Wasem
Domestic Social Policy Division
Congressional Research Service ˜ The Library of Congress
A Comparative Analysis of the Immigration Functions
in the Major Homeland Security Bills
Summary
The House passed the Homeland Security Act of 2002 (H.R. 5005) on July 26,
2002. On July 25, 2002, the Senate Governmental Affairs Committee approved a
modified amendment in the nature of a substitute to the text of the National
Homeland Security and Combating Terrorism Act of 2002 (S. 2452). On September
3, 2002, the Senate began debate on H.R. 5005. On that date, the text of S. 2452 as
approved by the Senate Governmental Affairs Committee was submitted as an
amendment in the nature of a substitute to H.R. 5005 (S.Amdt. 4471). Legislative
action on H.R. 5005 and the Senate amendment was prompted by the June 6, 2002
proposal made by President Bush to create a new Department of Homeland Security
(DHS), as well as previous congressional initiatives in this area. The President’s
proposal includes the Immigration and Naturalization Service (INS) under its Border
Security and Transportation Division. The key immigration differences in the bills
are: (1) whether only the immigration enforcement function or all of INS should be
transferred to DHS; and (2) whether those immigration functions transferred to DHS
should be housed in their own directorate or as part of a border security division.
H.R. 5005 and the Senate amendment would effectively abolish INS. H.R. 5005
would transfer INS’s enforcement function to a newly created DHS under a Border
Security Division, but would leave intact INS’s service function in the Department
of Justice (DOJ) under a newly created Bureau of Citizenship and Immigration
Services. The Senate amendment would transfer all of INS to DHS under two new
Bureaus (Bureau of Immigration Services and Bureau of Enforcement and Border
Affairs) in a separate Directorate of Immigration Affairs. Both bills would create
several new offices and positions within the division (H.R. 5005), directorate (Senate
amendment), and bureaus. The House bill and Senate amendment would also create
an Office of Immigration Statistics. The Senate amendment would create the office
within the directorate; and H.R. 5005 would create the office within the Bureau of
Justice Statistics.
H.R. 5005 and the Senate amendment would transfer INS’s unaccompanied
alien children function to the Department of Health and Human Services’ Office of
Refugee Resettlement. Both bills would maintain the visa issuance function in the
Department of State, but would give the Secretary of DHS authority to issue
regulations on visa policy. Unlike H.R. 5005, which is silent with respect to the
Executive Office for Immigration Review (EOIR), the Senate amendment would
create formal statutory authority within DOJ for an Agency of Immigration Hearing
and Appeals modeled after EOIR and abolish EOIR in its current form. This report
will be updated to reflect changes in legislation.
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Part I: Overview of Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Legislative History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Status of INS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Division of Responsibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Directorate of Immigration Affairs in S.Amdt. 4471 . . . . . . . . . . . . . . . 4
Bureau of Immigration Services in S.Amdt. 4471 . . . . . . . . . . . . . 5
Bureau of Enforcement and Border Affairs in S.Amdt. 4471 . . . . 5
Bureau of Border Security in H.R. 5005 . . . . . . . . . . . . . . . . . . . . . . . . 6
Bureau of Citizenship and Immigration Services in H.R. 5005 . . . . . . . 6
Other Offices Created or Transferred . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Visa Issuance Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
The Executive Office for Immigration Review . . . . . . . . . . . . . . . . . . . . . . . 8
Personnel Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Reporting Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Reporting provisions in the Senate Amendment . . . . . . . . . . . . . . . . . . 9
Reporting provisions in H.R. 5005 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Other Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Part II: Comparison of the Relevant Provisions of the Immigration and
Nationality Act, as Amended; the Homeland Security Act of 2002
(H.R. 5005); and the Chairman’s Substitute Amendment to H.R. 5005
(S.Amdt. 4471) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Status of the Immigration and Naturalization Service (INS) . . . . . . . . . . . . 12
Service Bureau . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Enforcement Bureau . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Unaccompanied Alien Children . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Visa Issuance Functions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
The Executive Office for Immigration Review (EOIR) . . . . . . . . . . . . . . . . 56
Transition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Reporting Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Miscellaneous Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
A Comparative Analysis of the
Immigration Functions in the
Major Homeland Security Bills
Introduction
Prompted by President Bush’s June 6, 2002 proposal to create a Department of
Homeland Security (DHS), Congress has now turned its attention to the legislative
details necessary for creating such a department. As Congress weighs the broader
question of homeland security and the creation of DHS, the issue of where to locate
the various immigration and citizenship functions currently performed by the
Department of Justice’s (DOJ’s) Immigration and Naturalization Service (INS) and
the Department of State’s (DOS’s) Bureau of Consular Affairs is of concern for many
lawmakers.
On July 26, 2002, the House passed the Homeland Security Act of 2002 (H.R.
5005). On July 25, 2002, the Senate Governmental Affairs Committee approved a
modified amendment in the nature of a substitute to the text of the National
Homeland Security and Combating Terrorism Act of 2002 (S. 2452).1 On September
3, 2002, the Senate began debate on H.R. 5005. On that date, the text of S. 2452 as
approved by the Senate Governmental Affairs Committee was submitted as an
amendment in the nature of a substitute to H.R. 5005 (S.Amdt. 4471). H.R. 5005 and
the Senate amendment were responses to the June 6, 2002 proposal made by
President Bush to create a new DHS, although there had been legislation introduced
on this issue beforehand. The President’s proposal includes INS under its border and
transportation security division. The key immigration differences in the House bill
and the Senate amendment are: (1) whether only the immigration enforcement
function or all of INS should be transferred to DHS; and (2) whether those
immigration functions transferred to DHS should be housed in their own directorate
or as part of the border security division.
The report consists of two parts — a narrative analysis and a side-by-side
analysis of the immigration provisions in the two bills. The first part, the narrative,
opens with a brief discussion of the legislative history pertaining to immigration
functions and homeland security. It then discusses the main elements of the
immigration provisions: (1) title; (2) definitions; (3) status of INS; (4) service
bureau; (5) enforcement bureau; (6) unaccompanied alien children; (7) visa issuance
functions; (8) the Executive Office for Immigration Review (EOIR); (9) transition;
(10) reporting requirements; and (11) miscellaneous provisions.
1
The Senate Governmental Affairs Committee originally marked-up S. 2452 on May 24,
2002.
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The second part is a comparative analysis of the relevant current law and the
current administrative structure of INS and the immigration provisions in the House
bill and Senate amendment. Because the Senate amendment to H.R. 5005 contains
more extensive immigration provisions, the analysis leads with the Senate
amendment. The comparison table is divided into the following parts:
! Status of the INS
! Service Bureau
! Enforcement Bureau
! Unaccompanied Alien Children
! Visa Issuance Function
! Executive Office for Immigration Review
! Transition
! Reporting Requirements
! Miscellaneous Provisions
For an analysis of immigration functions in the context of homeland security,
please see CRS Report RL31560, Homeland Security Proposals: Issues Regarding
Transfer of Immigration Agencies and Functions.
Part I: Overview of Legislation
Background
The INS activities generally considered as the enforcement function include the
following: (1) providing border security and management; (2) enforcing immigration
law within the interior of the United States; (3) detaining and removing aliens found
in violation of the INA and related laws; and (4) providing immigration-related
intelligence. Additionally, INS’s service function includes: (1) the adjudication of
immigration and naturalization benefits; and (2) the consideration of refugee and
asylum claims and related humanitarian and international concerns. INS inspections
is considered to be an enforcement program in terms of the budget and appropriations
process in recent years, but organizationally has been considered an examinations or
service program.
Section 104 of the INA gives the responsibility for the administration and
enforcement of immigration law to the Secretary of State as it relates to the duties
and functions of diplomatic and consular officers. The most notable of these are the
visa issuance functions of DOS. More precisely, §221 of INA gives consular officers
the authority to issue visas to both immigrants and nonimmigrants. DOS oversees
250 diplomatic and consular posts around the world from which visas are issued to
immigrants seeking permanent residence and nonimmigrants seeking authorization
for a temporary stay in the United States.
As part of a reorganization at DOJ, the Attorney General created EOIR by
regulation in 1983 as an agency independent from the INS. The role of EOIR is to
administer and interpret federal immigration laws and regulations through the
immigration court proceedings, appellate reviews, and administrative hearings in
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individual cases. There are three main components to EOIR: the Board of
Immigration Appeals; the Office of the Chief Immigration Judge; and the Office of
the Chief Administrative Hearing Officer.2
Legislative History
On June 6, 2002, the Administration proposed to create a DHS and to transfer
INS into it. The goal of the Administration’s proposal is to consolidate into a single
federal agency under one cabinet-level person many of the homeland security
functions performed by units within various federal agencies and departments. To
this end, the Administration plan would place all of the functions of INS under the
Border and Transportation Security Division of the proposed department. The plan
would split INS’s service and enforcement functions into two separate bureaus within
the Border and Transportation Security Division. The plan would also maintain the
visa issuance function at the Department of State. Although the President’s June 6,
2002 proposal was silent with regard to EOIR, he subsequently made it clear that
EOIR would be moved to DHS under his proposal.3
On June 24, 2002, the Senate Governmental Affairs Committee marked up the
National Homeland Security and Combating Terrorism Act of 2002 (S. 2452). The
act would create a homeland security department and transfer INS’s enforcement
functions to the newly created department under a Directorate of Border and
Transportation Division. The act, however, would have left INS’s service function
under DOJ.
House Majority Leader Richard Armey, Chair of the Select Committee on
Homeland Security, introduced the President’s proposal for a new DHS as H.R.
5005, the Homeland Security Act of 2002. As amended and passed by the House on
July 26, H.R. 5005 would place INS’s enforcement programs in a newly created
Border and Transportation Security Division of the DHS. When the House Select
Committee on Homeland Security marked up H.R. 5005 on July 19, 2002, it
approved language on immigrant processing and visa issuances consistent with the
House Judiciary Committee recommendations. As recommended by the House
Judiciary Committee, H.R. 5005 would leave INS’s service functions in DOJ under
a newly created Bureau of Citizenship and Immigration Services headed by an
Assistant Attorney General at DOJ.
On July 25, 2002, the Senate Governmental Affairs Committee approved a
modified amendment in the nature of a substitute to the text of S. 2452; and on
September 3, 2002, the Senate began debate on H.R. 5005. The text of S. 2452 as
approved by the Senate Governmental Affairs Committee was submitted as an
amendment in the nature of a substitute to H.R. 5005 (S.Amdt. 4471). The Senate
amendment, as agreed to by the Committee, would transfer all of INS to a separate
Directorate of Immigration Affairs in the proposed DHS.
2
8 CFR Part 3.
3
U.S. President (Bush), The Department of Homeland Security, August Recess 2002. p. 20.
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Status of INS
The Senate amendment would abolish INS as it is currently configured in DOJ
and in its place create a Directorate of Immigration Affairs within DHS. It would
create an Under Secretary of Homeland Security for Immigration Affairs to head the
Directorate. The Senate amendment would then create two bureaus under the
Directorate: (1) a Bureau of Immigration Services that would be headed by an
Assistant Secretary of Homeland Security for Immigration Services; and (2) a Bureau
of Enforcement and Border Affairs that would be headed by an Assistant Secretary
of Homeland Security for Enforcement and Border Affairs.
H.R. 5005 would also abolish INS and transfer its enforcement function to a
newly created DHS under its Bureau of Border Security, but it would maintain INS’s
service function under DOJ’s jurisdiction in a newly created Bureau of Citizenship
and Immigration Services. Under H.R. 5005, the Bureau of Border Security would
be headed by an Assistant Secretary; and the Bureau of Citizenship and Immigration
Services would be headed by an Assistant Attorney General for Citizenship and
Immigration Services.
Division of Responsibility
Directorate of Immigration Affairs in S.Amdt. 4471. The Senate
amendment would create a Directorate of Immigration Affairs within DHS that
would be headed by an Under Secretary of Homeland Security for Immigration
Affairs. It would place INS’s inspections directly under the Under Secretary, distinct
from the enforcement and service bureaus. Under the Directorate of Immigration
Affairs would be two bureaus: (1) a Bureau of Immigration Services; and (2) a
Bureau of Enforcement and Border Affairs. The amendment would create the
following offices and positions in the Directorate of Immigration Affairs:
! A General Counsel who would serve as the main legal advisor for the
Directorate and would be responsible for representing the Directorate in legal
matters pertaining to the functions of the Directorate.
! A Chief Financial Officer who would be responsible for the Directorate’s
budget formulation and implementation.
! A Chief of Policy who would be responsible for: (1) establishing U.S.
immigration policies and priorities; (2) performing research and analysis on
immigration issues; and (3) coordinating policy issues between the Directorate
and the Service and Enforcement Bureaus.
! A Chief of Congressional, Intergovernmental, and Public Affairs who would
be responsible for: (1) providing information pertaining to immigrationrelated issues to Congress; (2) serving as a liaison with other federal agencies
on immigration issues; and (3) responding to media and public inquiries with
regard to immigration issues.
! An Office of the Ombudsman that would be responsible for: (1) assisting
individuals with resolving problems; (2) identifying persistent problems
experienced by the public in dealing with the Directorate; (3) proposing
potential administrative and statutory changes to minimize the problems; and
(4) monitoring the coverage and geographic distribution of local offices.
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Bureau of Immigration Services in S.Amdt. 4471. Within the
Directorate of Immigration Affairs, the Senate amendment would create a Bureau of
Immigration Services that would be headed by an Assistant Secretary of Homeland
Security for Immigration Services. It would charge the Assistant Secretary of
Homeland Security for Immigration Services with adjudicating certain petitions and
applications4 as well as training personnel. The Senate amendment would create the
following offices and positions in the Bureau of Immigration Services:
! A Chief Budget Officer who would be responsible for monitoring and
supervising all financial matters of the bureau, and
! An office of Professional Responsibility and Quality Review that would
ensure the professionalism of the bureau and investigate public charges of
employee misconduct.
Bureau of Enforcement and Border Affairs in S.Amdt. 4471. The
Senate amendment would create a Bureau of Enforcement and Border Affairs in DHS
that would be headed by an Assistant Secretary of Homeland Security for
Enforcement and Border Affairs who would report to the Under Secretary for Border
Transportation Security. It would charge the Assistant Secretary of Homeland
Security for Enforcement and Border Affairs with administering immigration
enforcement functions5 as well as training personnel. The Senate amendment would
create the following offices and positions in the Bureau of Enforcement and Border
Affairs:
! A Chief Budget Officer who would be responsible for monitoring and
supervising all financial matters of the bureau;
! An office of Professional Responsibility and Quality Review that would
ensure the professionalism of the bureau and investigate public charges of
employee misconduct; and
! An office of Quality Assurance that would be responsible for ensuring that the
directorate’s policies with regard to the bureau’s functions are properly carried
out, and ensuring efficient record management.
The Senate amendment would also establish a border coordination working
group that would meet at least once every three months to do the following with
respect to border security:
! Coordinate budgets appropriations, staffing and other resources;
! Coordinate joint and cross-training programs;
4
Such as nonimmigrant and immigrant petitions; visas and other entry documents, and
change of adjustment status; naturalization applications; asylum and refugee applications;
determinations with regard to custody, parole, and conditions of parole, as well as the
responsibility for the detention of individuals subject to such determination, pertaining to
asylum seekers who lack prior non-political criminal records and who have been found to
have a credible fear of persecution; adjudications performed at service centers; and all other
adjudications under U.S. immigration law.
5
Such as border patrol function; immigration detention function; removal function;
intelligence function; and investigation function.
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! Monitor, evaluate and make improvements with respect to the coverage and
geographic distribution of programs and personnel;
! Develop and implement policies and technologies to ensure the flow of lawful
traffic, travel and commerce, and enhance scrutiny for high-risk traffic, travel
and commerce; and
! Identify systemic problems with coordination and propose changes.
Bureau of Border Security in H.R. 5005. H.R. 5005 would create a
Bureau of Border Security in DHS that would be headed by an Assistant Secretary
who would report to the Under Secretary for Border and Transportation Security.
The bill would create the following offices and positions in the Bureau of Border
Security:
! A Chief of Policy and Strategy who would be responsible for: (1) establishing
national immigration enforcement policies and priorities; (2) performing
research and analysis on immigration enforcement issues; and (3) coordinating
policy issues with the Chief of Policy and Strategy for the Bureau of
Citizenship and Immigration Services in DOJ;
! A Citizenship and Immigration Services Liaison who would be responsible
for: (1) allocating and coordinating resources for the purpose of supporting
“shared support functions” for the bureau and DOJ’s Bureau of Citizenship
and Immigration Services; and (2) managing facilities, information resources,
records, files and forms; and
! An office of Professional Responsibility and Quality Review that would: (1)
conduct investigations on employees of the bureau with regard to allegations
involving noncriminal misconduct, corruption, and fraud not subject to
investigation by the Inspector General; (2) inspect the operations of the bureau
and provide assessments with regard to the quality of operations; and (3)
provide an analysis of the management of the bureau.
Bureau of Citizenship and Immigration Services in H.R. 5005. H.R.
5005 would create a Bureau of Citizenship and Immigration Services in DOJ that
would be headed by an Assistant Attorney General who would report directly to the
Attorney General. The bill would create the following offices and positions in the
Bureau of Citizenship and Immigration Services:
! A Chief of Policy and Strategy who would be responsible for: (1) establishing
national immigration service policies and priorities; (2) performing research
and analysis on immigration services issues; and (3) coordinating policy issues
with the Chief of Policy and Strategy for the Bureau of Border Security in
DHS;
! A General Counsel who would serve as the main legal advisor to the Assistant
Attorney General for Citizenship and Immigration Services and would be
responsible for representing the bureau in legal matters pertaining to the
functions of the bureau;
! A Chief Budget Officer who would be responsible for all financial matters of
the bureau including formulating and executing the bureau’s budget and
collecting all payments, fines, and other debts for the bureau;
! A Chief of Congressional, Intergovernmental, and Public Affairs who would
be responsible for: (1) providing immigration services information to
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Congress, (2) serving as a liaison with other federal agencies on immigration
services issues, and (3) responding to media and public inquiries with regard
to immigration services issues;
! A Border Security Liaison who would be responsible for: (1) allocating and
coordinating resources for the purpose of supporting “shared support
functions” for the bureau and DHS’s Bureau of Border Security; and (2)
managing information resources, records, files and forms;
! A Chief of the Office of Citizenship who would be responsible for promoting
instruction and training on citizenship responsibilities for aliens interested in
becoming naturalized citizens;
! A Citizenship and Immigration Services Ombudsman who would be
responsible for: (1) assisting clients and employers in identifying issues
pertaining to immigration service-related problems; (2) resolving problems;
(3) proposing changes in administrative practices; and (4) identifying potential
legislative changes that could aid in mitigating such problems. The bill would
also assign additional responsibilities to the Ombudsman with respect to
monitoring local offices; and
! An office of Professional Responsibility and Quality Review that would: (1)
conduct investigations of employees of the bureau with regard to allegations
involving noncriminal misconduct, corruption and fraud that are not subject
to investigation by the Inspector General; (2) inspect the operations of the
bureau and provide assessments with regard to the quality of operations; and
(3) provide an analysis of the management of the bureau. H.R. 5005 would
require the bureau to take into consideration the following with regard to
assessing operational decisions that are made: (1) the accuracy of findings, (2)
any fraud or misrepresentation associated with the decision, and (3) the
efficiency of making such decisions.
Other Offices Created or Transferred. The House bill and Senate
amendment would: (1) create a new office for immigration statistics; and (2) transfer
the functions with respect to unaccompanied alien children to the Department of
Health and Human Services (DHHS).
! The Senate amendment would create an Office of Immigration Statistics
within the directorate. The newly created office would be responsible for: (1)
maintaining all immigration-related statistics of the directorate and EOIR; (2)
establishing reliability and validity standards for these statistics; and (3)
ensuring the interoperability of the directorate and EOIR.
! H.R. 5005 would create an Office of Immigration Statistics within the Bureau
of Justice Statistics at DOJ. The newly created office would be responsible
for: (1) maintaining all immigration-related statistics of the Bureau of
Citizenship and Immigration Service and EOIR; (2) establishing statistical
reliability and validity standards; (3) requiring the Bureau of Citizenship and
Immigration Services and the EOIR to provide statistics to the Office of
Immigration Statistics, and (4) collecting, compiling, analyzing, publishing,
and disseminating statistics and information pertaining to immigration in the
U.S. and the functions of the agency.
! The Senate amendment and H.R. 5005 would transfer functions with respect
to the care of unaccompanied alien children to the Director of the Office of
Refugee Resettlement (ORR) of DHHS. H.R. 5005 would assign a number
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of responsibilities to DHHS with regard to the care of unaccompanied alien
children.
The Senate amendment includes additional provisions pertaining to the care and
custody of unaccompanied alien children that are not specified in H.R. 5005, such as
those that would:
! Require specific procedures when encountering unaccompanied alien children
at the border, ports of entry and in the interior of the United States;
! Encourage family reunification by requiring ORR to place unaccompanied
alien children with certain individuals or institutions in order of preference;
! Require ORR to establish appropriate standards and conditions for the
detention of unaccompanied alien children;
! State a sense of Congress that the U.S. will not repatriate children into
dangerous settings; also require ORR to assess conditions of the alien child’s
home country prior to repatriation;
! Require ORR to establish procedures to determine the age of children;
! Require ORR to appoint a guardian ad litem;
! Require ORR to ensure that all unaccompanied alien children have competent
legal counsel to represent them in immigration proceedings; and
! Create a special immigrant provision to enable abused, neglected, and
abandoned alien children who become wards of the court to adjust their legal
permanent resident status.
Visa Issuance Function
Both the Senate amendment and H.R. 5005 would maintain the visa issuance
function with the Department of State (DOS), but would give the Secretary of DHS
authority to issue regulations on visa policy. The Senate amendment, however,
would permit the Secretary to delegate the authority to the Secretary of State. H.R.
5005 has several reporting requirements pertaining to the role of foreign nationals in
the process of rendering decisions in the visa issuance process and the effect of the
act’s visa issuance provisions on the issuance of visas to foreign students. For further
analysis of visa issuance, see CRS Report RL31512, Visa Issuances: Policy, Issues,
and Legislation, by Ruth Ellen Wasem.
The Executive Office for Immigration Review
The Senate amendment would create formal statutory authority within DOJ for
an Agency of Immigration Hearing and Appeals and abolish the EOIR in its current
form. As in the current administrative structure, the Senate amendment would give
the agency three main components: the Board of Immigration Appeals; the Office
of the Chief Immigration Judge; and the Office of the Chief Administrative Hearing
Officer. Although H.R. 5005 is silent on the issue of EOIR, the Bush Administration
has stated that it would transfer EOIR to DHS when the Department is established.6
6
White House Office of Homeland Security. The Department of Homeland Security, August
Recess 2002. p. 20.
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Personnel Provisions
H.R. 5005 has several provisions that would revise the personnel system, as it
pertains to immigration, that are not in the Senate amendment:
! Both bureaus would be required to implement a Managerial Rotation Program
that would require employees holding positions involving supervisory or
managerial responsibility and classified at GS-14 or above, as a condition for
further promotion, to gain some experience in all the major functions
performed by the bureau and work in at least one local office (Bureau of
Border Security) or one field office and one service center (Bureau of
Citizenship and Immigration Services);
! The Under Secretary for Border and Transportation Security and the Assistant
Attorney General for Citizenship and Immigration Services would be allowed
to impose disciplinary action, including termination of employment, pursuant
to policies and procedures applicable to FBI employees, on any employee of
the bureaus who willfully deceives the Congress or agency leadership on any
matter;
! The act would allow voluntary separation incentives, up to $25,000, for
certain employees; and
! The act would permit the Attorney General and the Secretary of DHS to
conduct a demonstration project relating to disciplinary action.
Reporting Provisions
Reporting provisions in the Senate Amendment:
! The DHS Ombudsman to report to Congress annually on the objectives of the
directorate for the upcoming fiscal year.
! The Under Secretary to report to Congress, no later than 1 year after the
effective date of the act, on the determination of the feasibility of on-line filing
of benefit applications.
! The Secretary to report to Congress, no later than 90 days after the effective
date of this division, the availability of funds to cover the transition cost
pertaining to the transfer of INS’s functions to DHS.
Reporting provisions in H.R. 5005:
! The Secretary of DHS, no later than 1 year after being sworn into office, on
how the bureau will effectively enforce the enforcement provisions of the
Immigration and Nationality Act (INA);
! The Ombudsman of the Bureau of Citizenship and Immigration Services,
annually, on the objectives of the office for the upcoming fiscal year;
! The Attorney General, no later than 1 year from enactment, with respect to a
plan for implementing a system for more timely and efficient processing of
adjudications;
! The Attorney General, no later than 1 year from enactment, with respect to
changes in the law and authorizations of appropriations that are needed in
order for INS and thereafter the Bureau of Citizenship and Immigration
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Services to respond to applications for immigration benefits and to otherwise
accommodate changing immigration service needs;
! The Attorney General, no later than 1 year from enactment, with regard to the
impact the transfers have had on immigration functions;
! The Attorney General and the Secretary of DHS, no later than 120 days after
enactment, (1) on the proposed division and transfer of funds between both
bureaus, (2) on the division of personnel between both bureaus, and (3) on an
implementation plan;
! The Comptroller General, no later than 18 months after the date on which the
functions are transferred and every 6 months thereafter, with regard to the
status of the transition and any issues that have arisen pertaining to the
transfer;
! The Comptroller General, no later than 4 years after the transfer, with regard
to determinations pertaining to the improvement of immigration functions as
a result of the transfer, including operations, management, financial
administration, and record keeping, as well as recommendations for further
improvements in both bureaus; and
! The Comptroller General, no later than 1 year from enactment, with regard to
whether the Bureau of Citizenship and Immigration Services is likely to derive
adequate funds, in the absence of appropriated funds, from its fee-based
programs.
Other Provisions
H.R. 5005 contains a number of other immigration provisions that are not in the
Senate amendment:
! The act would extend the current deadline for eliminating the adjudication
backlog to 1 year from the date of enactment;
! The Assistant Secretary of the Bureau of Border Security would be required
to administer a program to collect information on nonimmigrant foreign
students and other exchange program participants;
! The act would state that it is the sense of Congress that the 14-mile border
fence project required by 8 U.S.C. 1103 should be a priority for the Secretary;7
! The act would provide the following sense of Congress findings: (1) the
missions of the Bureau of Immigration Enforcement of the DHS and the
Bureau of Citizenship and Immigration Services of DOJ are equally important
and should be adequately funded, and (2) the border security and the
citizenship and immigration services functions transferred under this subtitle
should not operate at levels below those in effect prior to enactment; and
! The act would state that it is the sense of Congress that the quality and
efficiency of immigration services should be improved after the transfers take
effect and that the Attorney General should undertake efforts to guarantee that
concerns pertaining to immigration services are addressed.
7
The 14-mile border fence is located near the San Diego border and its purpose is to stem
illegal immigration into the United States.
CRS-11
Part II: Comparison of the Relevant Provisions of the
Immigration and Nationality Act, as Amended;
the Homeland Security Act of 2002 (H.R. 5005); and the
Chairman’s Substitute Amendment to H.R. 5005 (S.Amdt. 4471)
Title
Subject
Title of Act
Current law /
current administrative structure
S.Amdt. 4471, as filed on
September 3, 2002
H.R. 5005, as passed by the
House on July 26, 2002
The act would specify the following
short title:
“Immigration Reform,
Ac c o u n t a b i l i t y , a n d S e c u r i t y
Enhancement Act of 2002.” §1001
The act would provide the
following title for Title IV of the
act: “Border and Transportation
Security”; and the following title
for Subtitle B: “Immigration and
Nationality Functions.”
Current law /
current administrative structure
S.Amdt. 4471, as filed on
September 3, 2002
H.R. 5005, as passed by the
House on July 26, 2002
Title I of the Immigration and
Nationality Act (INA) provides
definitions for the following terms:
administrator, advocates, alien,
application for admission, Attorney
General, border crossing identification
card, clerk of the court, Commissioner
and Deputy Commissioner, consular
officer, crewman, diplomatic visa,
doctrine, admission and admitted,
foreign state, immigrant, immigrant visa,
immigration laws, immigration officer,
ineligible to citizenship,
The act would amend Title I of the INA
(new Chapter 1) by providing definitions
for the following additional terms:
enfo rcement bureau, function,
immigration enforcement functions,
immigration laws of the United States,
immigration policy, administration,
inspection functions, immigration
service functions, office, Secretary,
Service Bureau, and Under Secretary.
§1002
None.
Definitions
Subject
Definitions
No provision.
CRS-12
Subject
Definitions, cont.
Current law /
current administrative structure
lawfully admitted for permanent
residence, national, national of the
U n i t e d S t a t es, natur alizatio n,
noncombatant service, nonimmigrant
visa, special immigrant, organization,
outlying possessions of the United
States, passport, permanent, profession,
residence, Service, spouse, wife and
husband, state, totalitarian party, United
States, unmarried, world communism,
graduates of a medical school, refugee,
aggravated felony, managerial capacity,
substantial, extraordinary ability, order
of deportation, stowaway, parent, father,
or mother, person, immigration judge,
adjacent islands, and child. §101(a)
S.Amdt. 4471, as filed on
September 3, 2002
See above.
H.R. 5005, as passed by the
House on July 26, 2002
See above.
Status of the Immigration and Naturalization Service (INS)
Subject
Status of INS
New Agency
Current law /
current administrative structurea
S.Amdt. 4471, as filed on
September 3, 2002
H.R. 5005, as passed by the
House on July 26, 2002
The Act of February 14, 1903, as
amended, provided language for the
creation of INS’s predecessor. §4 [Under
the Administration’s November 14, 2001
restructuring plan, INS’s service and
enforcement functions are separate.]1
The act would abolish INS and repeal §4
of the Act of February 14, 1903, as
amended. §1101.
The act would abolish INS. §441
None.
The act would amend Title I of the INA
by creating a Directorate of Immigration
Affairs withinn DHS. §1102
The act would establish a Directorate of
Immigration Affairs within a Department
of Homeland Security (DHS). §136
No similar provision; however the
act would create a Bureau of
Border Security within DHS and a
Bureau of Citizenship and
Immigration Services within DOJ,
see §412(a) and §421(a).
CRS-13
Current law /
current administrative structurea
S.Amdt. 4471, as filed on
September 3, 2002
H.R. 5005, as passed by the
House on July 26, 2002
Functions of INS/Directorate/Bureaus
INS through the Attorney General
administers and enforces the INA and all
other laws that pertain to the
immigration and naturalization of aliens
except for those powers that are
conferred upon the President, Secretary
of State, or his officers. §103(a)
The act would require a Directorate,
under the authority of the Secretary of
Homeland Security, to administer
immigration policy and perform
immigration inspections, enforcement,
service and adjudication functions.
§1102
The act does not have a provision
that would create a Directorate that
would be over the immigration
services and immigr atio n
enforcement functions. The act,
however, would create an
Undersecretary for Border and
Transportation Security in DHS
and an Assistant Attorney General
for Citizenship and Immigration
Services who would be responsible
for carrying out the immigration
enforcement and service functions,
respectively, that are in law or
performed by the Commissioner of
INS prior to the transfer of such
functions to DHS. See §401 and
§421(a)(2)(3)(A)
Principal Officers
See Head, page 14.
The act would define the principal
officers as follows: (1) Under Secretary
of Homeland Security for Immigration
Affairs, (2) Assistant Secretary of
Homeland Security for Immigration
Services, and (3) Assistant Secretary of
Homeland Security for Enforcement and
Border Affairs. §1102
See above.
Definitions of Positions and Key
Functions
See Definition, §101(a), page 11.
The act would provide definitions for the See above.
following: (1) Under Secretary of
Homeland Security for Immigration
Affairs, (2) Assistant Secretary of
Homeland Security for Immigration
Services, (3) Assistant Secretary of
Homeland Security for Enforcement and
Borders Affairs, (4) immigration laws of
the United States, (5) immigration
policy, (6) administration, and (7)
inspection functions. §1102 and §1103
Subject
CRS-14
Subject
Head
Current law /
current administrative structurea
S.Amdt. 4471, as filed on
September 3, 2002
The INA charges the Attorney General
with the administration and enforcement
of the Act and all other laws that pertain
to the immigration and naturalization of
aliens except for those powers that are
conferred upon the President, Secretary
of State, or his officers. §103(a)
The act would further amend Title I of
the INA by placing an Under Secretary
of Homeland Security for Immigration
Affairs in charge of the new Directorate.
§1103(a)
The INA further charges the INS
Commissioner with all responsibilities
and authority in the administration and
enforcement of the Act which are
conferred upon the Attorney General.
The Act also charges the Attorney
General to delegate or prescribe
responsibilities to the Commissioner.
§103(c)
H.R. 5005, as passed by the
House on July 26, 2002
See above.
CRS-15
Subject
Functions of the Head
Current law /
current administrative structurea
See above.
S.Amdt. 4471, as filed on
September 3, 2002
The act would require the Under
Secretary to: (1) develop and implement
immigration policy and propose,
promulgate and issue rules, regulations
and statements of policy pertaining to
immigration law; and (2) administer and
enforce the functions of the Bureaus of
Immigration Services and Enforcement
and Border Affairs; and direct, supervise
and coordinate both Bureaus. §1103(a)
H.R. 5005, as passed by the
House on July 26, 2002
See above.
The act would require the Under
Secretary to manage resources (including
information resources), and personnel
and coordinate with the Civil Rights
Officer of the DHS all immigrationrelated civil rights violations. The act
would also require the Under Secretary
to assist and support the Secretary of
DHS in coordination with other
Directorates and entities outside DHS in
co nd ucting risk analysis and
management activities that are consistent
with the mission and functions of the
Directorate. §1103(a)
Functions of the Head, Inspections
See above.
T h e a c t wo u l d r eq uir e the Und er
Secretary to administer and enforce
immigration laws with regard to
inspecting all aliens at U.S. ports of
entry. §1103(a)
See above.
Compensation
The INS Commissioner is compensated
at Level IV of the Executive Schedule.
(5 U.S.C. 5315)
The act would require the Under
Secretary to be compensated at Level III
of the Executive Schedule. §1103(b)
No provision.
CRS-16
Current law /
current administrative structurea
S.Amdt. 4471, as filed on
September 3, 2002
H.R. 5005, as passed by the
House on July 26, 2002
Offices and Positions Within the
Head’s Office
[Under the November 11, 2001 INS
restructuring plan, the following offices
or positions would continue to exist or be
created under or adjunct to the
Commissioner: (1) Policy, Planning and
Programs; (2) General Counsel; (3)
Congressional and Public Affairs; (4)
Professional Responsibility (internal
audits); (5) Chief Financial Officer; (6)
Chief Information Officer; (7) Chief
Administrative Officer; and (8) Office for
Juvenile Affairs.]
The act would create the following
offices and positions within the
Directorate of Immigration Affairs: (1)
General Counsel; (2) Chief Financial
Officer; and (3) Chief of Policy; (4)
Chief of Congressional,
Intergovernmental, and Public Affairs.
§1103(a)
See offices and positions within
the Bureau of Border Security,
§412(b)(c) and Bureau of
Citizenship and Immigration
Services §421(c-i).
General Counsel
[According to the November 11, 2001
INS Restructuring Plan, the General
Counsel provides legal advice and
assistance to the Commissioner and field
managers. The General Counsel also
represents INS in all immigration and
employee-related legal matters.]
The act would create a General Counsel
position who would be appointed by the
Secretary of Homeland Security in
consultation with the Under Secretary
and serve as the chief legal officer for
the Directorate.
The act would create a General
Counsel position in the service
bureau. §421(d)
Subject
[The General Counsel is also established
in 8 C.F.R. 100.2(a)(1)]
Chief Financial Officer
[The November 11, 2001 INS
Restructuring Plan creates a Chief
Financial Officer who is responsible for
the development of agency-wide
financial policy.]
The General Counsel would be
responsible for providing legal advice,
determinations, regulations, and other
assistance to the Under Secretary with
regard to matters affecting the
Directorate. §1103(a)
The act would create a Chief Financial
Officer position (a career ladder post at
the Senior Executive Series level) who
would be responsible for the
Directorate’s budget formulation and
implementation. §1103(a)
The act would create a Chief
Budget Officer in the service
bureau. §421(e)
CRS-17
Current law /
current administrative structurea
S.Amdt. 4471, as filed on
September 3, 2002
H.R. 5005, as passed by the
House on July 26, 2002
Chief of Policy
[The existing Office of Policy, Planning
and Programs develops policy and INS’
strategic direction and legislative
requirements.
The Office also is
responsible for INS’ statistics and
program development.]
The act would create a Chief of Policy
position who would be responsible for:
(1) establishing U.S. immigration
policies and priorities, (2) performing
research and analysis on immigration
issues, and (3) coordinating policy issues
between the Directorate and the Service
and Enforcement Bureaus. §1103(a)
The act would create a Chief of
Policy and Strategy position in
each Bureau. §412(b) and §421(c)
Chief of Congressional,
Intergovernmental, and Public Affairs
[The existing Office of Congressional
and Public Affairs serves as a liaison
with Congress, the media, and external
stakeholders.
The office, through
coordination with DOJ and the Office of
Management and Budget, has
responsibilities for coordinating and
developing legislation, as well as views
on pending legislation.]
The act would create a Chief of
Congressional, Intergovernmental, and
Public Affairs within the Directorate
who would be responsible for: (1)
providing information pertaining to
immigration-related issues to Congress,
(2) serving as a liaison with other federal
agencies on immigration issues, and (3)
responding to media and public inquiries
with regard to immigration issues.
§1103(a)
The act would create a Chief of
Congressional, Intergovernmental,
and Public Affairs position within
the Bureau of Citizenship and
Immigration Services. §421(f)
Office of Professional Responsibility
[The existing Office of Professional
Responsibility performs audits and
employee misconduct-related functions.
The office also performs program
oversight responsibilities and ensures
proper liaison between INS and outside
organizations with regard to its
functions.]
See Office of Professional Responsibility
in the service bureau, page 27.
See Citizenship and Immigration
Services Ombudsman in the
service bureau, page 31. §422(a)
Chief Information Officer
[The November 11, 2001 INS
Restructuring Plan creates a Chief
Information Officer (CIO) position. The
CIO is responsible for developing a
mechanism to share information with
other agencies.]
No provision.
No provision.
Subject
CRS-18
Subject
Current law /
current administrative structurea
S.Amdt. 4471, as filed on
September 3, 2002
H.R. 5005, as passed by the
House on July 26, 2002
Office of Administration
[The November 11, 2001 INS
Restructuring Plan creates an Office of
Administration that has responsibility for
all INS personnel matters with regard to
employment (e.g., human resources
matters).]
No provision.
No provision.
Compensation
No provision.
The act would require the General
Counsel and Chief Financial Officer to
be compensated at Level IV of the
Executive Schedule. §1103(c)
No provision.
Office of the Ombudsman
[Under the November 11, 2001 INS
Restructuring Plan, a Customer
Relations Office is created in the Service
Bureau and an Ombudsman Office is
created in the Enforcement Bureau. See
Service Bureau and Enforcement Bureau
sections below, pages 23 and 35.]
The act would amend the INA by
creating an Office of the Ombudsman for
Immigration Affairs. The Ombudsman
would be appointed by the Secretary of
Homeland Security, after consultation
with the Under Secretary. §1106(a)
The act would create a Citizenship
and Immigration Services
Ombudsman position in the
Bureau of Citizenship and
Immigration Services. §422(a)
The act would require the Ombudsman
to report to the Under Secretary and be
compensated under the Senior Executive
Service. §1106(a)
The act would give the Ombudsman the
following functions:
(1) assist
individuals with resolving problems
pertaining to the Directorate or its
components; (2) identify persistent
problems experienced by the public in
dealing with the Directorate; (3) propose
potential administrative and statutory
changes to minimize the problems; and
(4) monitor the coverage and geographic
distribution of local offices. §1106(a)
CRS-19
Subject
Office of the Ombudsman
Reporting requirements
Current law /
current administrative structurea
None.
S.Amdt. 4471, as filed on
September 3, 2002
H.R. 5005, as passed by the
House on July 26, 2002
The act would require the Ombudsman
to report annually to Congress on the
objectives of the office for the upcoming
fiscal year. The act would require the
report to be submitted to Congress
without prior review or comment from
other officials. The act would require
the report to have analysis, statistical
information, and the following: (1)
description of initiatives the Directorate
has taken with regard to improving
services and the responsiveness of the
bureau; (2) a summary of the “most
pervasive and serious problems”
experienced by individuals and
employers; (3) an inventory of the
aforementioned items for which action
has been taken; (4) an inventory of the
aforementioned items for which action is
still needed; (5) an inventory of the
aforementioned items for which no
action has been taken; (6)
recommendations for administrative and
legislative action, if necessary, to resolve
problems experienced by individuals and
employers; (7) recommendations to
resolve problems caused by inadequate
funding or staffing, and (8) any other
information the Ombudsman deems
necessary. §1106(a)
The act would require the
Ombudsman to report no later than
June 30 of each year to Congress
on the objectives of the office for
the upcoming fiscal year. The act
would require the report to be
submitted to Congress without
prior review or comment from
other officials.
The act would require the report to
h a v e a n a l ys i s , statistical
information, and the following:
(1) identification of initiatives the
office has taken with regard to
improving services and the
responsiveness of the bureau; (2)
summary of the “most pervasive
and serious problems” experienced
by individuals and employers; (3)
inventory of the aforementioned
items for which action has been
taken; (4) inventory of the
aforementioned items for which
action is still needed; (5) inventory
of the aforementioned items for
which no action has been taken;
( 6 ) r e c o mme nd atio ns fo r
administrative and legislative
action, if necessary, to resolve
problems experienced by
individuals and employers; and (7)
any other information the
Ombudsman deems necessary.
§422(c)
CRS-20
Subject
Office of the Ombudsman
Current law /
current administrative structurea
S.Amdt. 4471, as filed on
September 3, 2002
H.R. 5005, as passed by the
House on July 26, 2002
See above, Office of Professional
Responsibility, page 17.
The act would charge the Ombudsman
with the responsibility and authority to
appoint local or regional representatives
of the Ombudsman’s Office as in the
Ombudsman’s judgment may be
necessary to address and rectify
problems. §1106(a)
The act would charge the
Ombudsman with the
responsibility and authority to
appoint local ombudsmen and
make available at least one
ombudsman for each state; and to
evaluate and take personnel
actions (including dismissal) with
respect to any employee of any
local office of the Ombudsman.
§422(e)
[The November 11, 2001 INS
Restructuring Plan creates an Office of
Juvenile Affairs (OJA). The OJA has
overall responsibility for juvenile matters
with regard to immigration, including
leading and directing national programs
pertaining to unaccompanied alien
children in INS custody. The office is
also responsible for ensuring that
juveniles who come into contact with INS
are treated appropriately, as well as
ensuring that juveniles who are found
inadmissible/removable are removed
safely and correctly.]
See Unaccompanied Alien Children
section, page 44.
See Unaccompanied Alien
Children section, page 44. §436
Personnel actions
Office of Juvenile Affairs
CRS-21
Subject
Office of Immigration Statistics
Current law /
current administrative structurea
S.Amdt. 4471, as filed on
September 3, 2002
H.R. 5005, as passed by the
House on July 26, 2002
[The November 11, 2001 INS
Restructuring Plan keeps immigration
statistics in INS’ Office of Policy,
Planning and Programs, located under
the INS Commissioner.]
The act would amend the Omnibus
Crime Control and Safe Streets Act of
1968 by creating an Office of
Immigration Statistics within the
Directorate, headed by a director. §1107
The act would amend the Omnibus
Crime Control and Safe Streets
Act of 1968 (new §305) by
creating an Office of Immigration
Statistics within the Bureau of
Justice Statistics, headed by a
director who is appointed by the
Attorney General and reports to
the Director of Justice Statistics.
§425
The act would charge the director of the
Office with the following functions: (1)
maintain all immigration-related
statistics of the newly created agency and
the existing Executive Office for
Immigration Review (EOIR); (2)
establish reliability and validity
standards with regard to the
aforementioned statistics; and (3) ensure
the interoperability of the agency and
EOIR databases. §1107
The act would transfer the functions of
the Statistics Branch of the Office of
Policy and Planning of the INS to the
newly created office. §1107
The act would charge the director
with the following functions: (1)
maintain all immigration-related
statistics of the Bureau of
Citizenship and Immigration
Service and the EOIR. Require the
statistics to include information
and statistics currently found in the
“Statistical Yearbook of the INS”;
(2) establish reliability and validity
standards with regard to the
aforementioned statistics; (3)
require the Bureau of Citizenship
and Immigration Services and the
Executive Office of Immigration
Review to provide statistics to the
Office of Immigration Statistics,
and (4) collect, compile, analyze,
publish, and disseminate statistics
and information pertaining to
immigration in the U.S. and the
functions of the agency. §425
The act would transfer the
functions of the Statistics Branch
of the Office of Policy and
Planning of INS to the newly
created office. §425
CRS-22
Subject
Office of Immigration Statistics
Current law /
current administrative structurea
See above.
S.Amdt. 4471, as filed on
September 3, 2002
See above.
H.R. 5005, as passed by the
House on July 26, 2002
The act would create an Under
Secretary for Management who,
among other things, would be
responsible for the following: (1)
maintaining all immigration
statistical information of the
Bureau of Border Security to
include information and statistics
currently found in the “Statistical
Yearbook of the INS”; and (2)
establish reliability and validity
standards with regard to statistics
collected by the Bureau. §601
The act would transfer the
following programs of the
Statistics Branch of the Office of
Policy and Planning of INS to the
Under Secretary for Management:
(1) border patrol; (2) detention and
removal; (3) intelligence; (4)
investigation; and (5) inspections.
§601
Authorization for Appropriations
Funds are appropriated annually for INS
under the Commerce, Justice, State, the
Judiciary and Related Agencies
Appropriations Act.
The act would authorize appropriations,
“such sums as may be necessary,” to
carry out the functions of the Directorate.
§1102
The act would require the amount
appropriated to remain available until
expended. §1102
No provision.
CRS-23
Service Bureau
Current law /
current administrative structurea
S.Amdt. 4471, as filed on
September 3, 2002
H.R. 5005, as passed by the
House on July 26, 2002
Service Bureau
[The November 11, 2001 INS
Restructuring Plan creates a separate
Bureau of Immigration Services.]
The act would amend the INA by
creating a Bureau of Immigration
Services within the Directorate. §1104(a)
The act would create a Bureau of
Citizenship and Immigration
Services in DOJ. §421(a)
Bureau Head
[The November 11, 2001 INS
Restructuring Plan calls for an Executive
Commissioner for Immigration Service
to head the Bureau. The Executive
Commissioner for Immigration Service
administers Area Directors, and the field
office directors.]
The Bureau would be headed by an
Assistant Secretary of Homeland
Security for Immigration Services who
would be appointed by the Secretary of
Homeland Security.
The Assistant
Secretary would report directly to the
Under Secretary. §1104(a)
The Bureau would be headed by
an Assistant Attorney General for
Citizenship and Immigration
Services who reports directly to
the Deputy Attorney General.
§421(a)
Bureau Head Requirements
No provision.
No provision.
T he act would require the
Assistant Attorney General for
Citizenship and Immigration
Services to have a minimum of 10
years professional experience in
adjudication determinations
pertaining to government benefits
or services. The act would require
that at least 5 of the 10 years of
professional experience be at a
managerial capacity or having
comparable management
experience. §421(a)(2)(B)
Compensation
None.
The act would require the Assistant
Secretary to be paid at Level IV of the
Executive Schedule. §1104(b)
No provision.
Subject
CRS-24
Subject
Functions of the Service Bureau
Current law /
current administrative structurea
S.Amdt. 4471, as filed on
September 3, 2002
H.R. 5005, as passed by the
House on July 26, 2002
[The November 11, 2001 INS
Restructuring Plan charges the Service
Bureau with the following: (1) providing
immigration benefits under the INA; (2)
making asylum and refugee
determinations; (3) processing
naturalization and adjustment of status
applications; and (4) processing
requests for employment authorization.]
The act would charge the Assistant
Secretary of the Bureau (under the
authority of the Secretary and the Under
Secretary) with administering
immigration services and adjudication
functions, including the following: (1)
adjudications of nonimmigrant and
immigrant petitions; (2) adjudications of
visas and other entry documents, and
change and adjustment of status; (3)
adjudications and naturalization
applications; (4) adjudications of asylum
and refugee applications; (5)
determinations with regard to custody,
parole, and conditions of parole, as well
as the responsibility for the detention of
individuals subject to such
determination, pertaining to asylum
seekers who lack prior non-political
criminal records and who have been
found to have a credible fear of
persecution; (6) adjudications performed
at service centers, and (7) all other
adjudications under U.S. immigration
law, as well as training of personnel.
§1104(a)
The act would require the
Assistant Attorney General for
Citizenship and Immigration
Services to: (1) establish and
oversee the administration of
relevant policies, (2) advise the
Deputy Attorney General with
respect to any policy or operation
that may affect the Bureau of
Immigration Enforcement in the
DHS, (3) meet regularly with the
Citizenship and Immigration
Services Ombudsman to correct
problems and establish procedures
that would require a formal
response to any recommendations
submitted in the Ombudsman’s
annual report, (4) design,
implement and report to Congress
on a managerial rotation program,
and (5) implement a pilot program
that would eliminate (and prevent
from recurring) the backlog
pertaining to the processing of
immigration benefit applications.
§421(a)
CRS-25
Subject
Managerial Rotation Program
Current law /
current administrative structurea
No provision.
S.Amdt. 4471, as filed on
September 3, 2002
No provision.
H.R. 5005, as passed by the
House on July 26, 2002
T he act would require the
Assistant Attorney General, no
later than 1 year after the effective
date specified in Section 427
(“immediately before such transfer
occurs”), to design and implement
a managerial rotation program
under which the Bureau’s
employees holding positions
in v o l v i n g s u p e r viso r y o r
managerial responsibility and
classified at GS-14 or above,
would, as a condition of further
promotion, gain some experience
in all the major functions
performed by the Bureau and work
in at least one field office and one
service center of the Bureau.
The act would require the Attorney
General to submit a report to
Congress on implementation of the
program not later than 2 years after
the effective date specified in
Section 427 (“immediately before
such transfer occurs”). §421(a)(4)
CRS-26
Subject
Functions of the Executive
Commissioner for Immigration
Services/Under Secretary/Assistant
Attorney General for Citizenship and
Immigration Services
Current law /
current administrative structurea
S.Amdt . 4471, as filed on
September 3, 2002
H.R. 5005, as passed by the
House on July 26, 2002
[The November 11, 2001 INS
Restructuring Plan charges the Executive
Commissioner with providing overall
leadership to the Bureau.]
The act would charge the Under Secretary
(under the direction of the Secretary)
acting through the Assistant Secretary for
Immigration Services with establishing
offices, including sub-offices and satellite
offices, throughout the U.S. that are
located near the community served and
taking into consideration the office’s
workload with regard to improving the
backlog and improving customer service.
§1104(c)
The act would require the
Assistant Attorney General for
Citizenship and Immigration
Services to: 1) establish and
oversee the administration of
relevant policies, (2) advise the
Deputy Attorney General with
respect to any policy or
operation that may affect the
B u r e a u o f I mmi g r a t i o n
Enforcement in the DHS, (3)
meet regularly with the
Citizenship and Immigration
Services Ombudsman to correct
p r o b l e ms a n d e s t a b l i s h
procedures that would require a
formal response to any
recommendations submitted in
the Ombudsman’s annual report,
(4) design, implement and report
to Congress on a managerial
rotation program, and (5)
implement a pilot program that
would eliminate (and prevent
from recurring) the backlog
pertaining to the processing of
immigration benefit applications.
§421(a)
CRS-27
Subject
Current law /
current administrative structurea
S.Amdt . 4471, as filed on
September 3, 2002
H.R. 5005, as passed by the
House on July 26, 2002
Employee Discipline
No provision.
No provision.
T he act wo uld p er mit the
Assistant Attorney General for
Citizenship and Immigration
Services, notwithstanding any
other provision of law, to impose
disciplinary action, including
termination of employment,
pursuant to policies and
procedures applicable to FBI
employees, on any employee of
the Bureau who willfully
deceives the Congress or agency
leadership on any matter. §424
Offices and
positions within the Bureau
[Under the November 11, 2001 INS
Restructuring Plan the following offices
or positions would continue to exist or be
created under or adjunct to the Executive
Commissioner for Immigration Service:
(1) Office of Customer Relations; (2)
Office of Quality Assurance; (3) Office of
Service Center Operations; (4) Office of
the Area Directors; and (4) Office of
Asylum and Refugee Affairs.]
The act would create the following offices
and positions within the Bureau: (1)
Chief Budget Officer, (2) Office of
Quality Assurance, and (3) Office of
Professional Responsibility. §1104(a)
The act would create the
following offices and positions
within the Bureau: (1) Chief of
Policy and Strategy; (2) General
Counsel; (3) Chief Budget
Officer;
(4) Chief of
C o n g r e s s i o n a l ,
Intergovernmental, and Public
Affairs; (5) Office of Quality
Assurance; (6) Border Security
Liaison; (7) Chief of Office of
Citizenship; and (8) Citizenship
and Immigration Services
O m b u d s m a n .
§421(c)(d)(e)(f)(g)(h)(i)
Chief Budget Officer
See Chief Financial Officer under the
Commissioner in the Status of INS
section, page 16.
The act would create a Chief Budget
Officer who would report to the Chief
Financial Officer of the Directorate. The
Chief Budget Officer would be
responsible for monitoring and
supervising all financial matters of the
bureau. §1104(a)
The act would create a Chief
Budget Officer who would be
responsible for: (1) formulating
and executing the bureau’s
budget, (2) all financial matters
of the bureau; and (3) the
collection of all payments, fines,
and other debts for the bureau.
§421(e)
CRS-28
Current law /
current administrative structurea
S.Amdt . 4471, as filed on
September 3, 2002
Office of Quality Assurance
[The November 11, 2001 INS
Restructuring Plan creates an Office of
Quality Assurance that is responsible for
developing quality assurance and audit
programs.]
The act would create an Office of Quality
Assurance that would be responsible for
ensuring that the Directorate’s policies
with regard to the service bureau’s
functions are properly carried out and
ensure efficient record management.
§1104(a)
See §423 below.
Office of Professional Responsibility
(S. 2452)/Professional Responsibility
and Quality Review (H.R. 5005)
See Office of Professional Responsibility
under the Commissioner in the Status of
INS section, page 17.
The act would create an Office of
Professional Responsibility position that
would be responsible for ensuring the
professionalism of the Bureau and
accepting and investigating charges of
employee misconduct made by the public.
§1104(a)
The act would require the
Assistant Attorney General for
Citizenship and Immigration
Services to be responsible for
professional responsibility and
quality review, specifically to:
(1) conduct investigations of
employees of the Bureau with
regard to allegations involving
n o n c r iminal mi s c o n d u c t ,
corruption and fraud that is not
subject to investigation by the
Inspector General; (2) inspect the
operations of the Bureau and
provide assessments with regard
to the quality of operations; and
(3) provide an analysis of the
management of the Bureau.
The act would require the
following special considerations
with regard to assessment of
operational decisions made by
the Bureau: (1) accuracy of
findings, (2) any fraud or
misrepresentation associated
with the decision, and (3) the
efficiency of making such
decisions. §423
Subject
H.R. 5005, as passed by the
House on July 26, 2002
CRS-29
Current law /
current administrative structurea
S.Amdt . 4471, as filed on
September 3, 2002
H.R. 5005, as passed by the
House on July 26, 2002
Chief of Policy
See Chief of Policy under the
Commissioner in the Status of INS
section, page 17.
The act would create a Chief Policy
Officer position under the Directorate,
page 17. §1103
The act would create a Chief of
Policy and Strategy position that
would be responsible for (1)
establishing national
immigration services policies
and priorities, (2) performing
research and analysis on
immigration services issues, and
(3) coordinating policy issues
with the Chief of Policy and
Strategy in the Department of
Homeland Security’s Bureau of
Border Security. §421(c)
General Counsel
See General Counsel Office under the
Commissioner in the Status of INS
section, page 16.
The act would create a General Counsel
position under the Directorate, page 16.
§1103
The act would create a General
Counsel position to serve as the
main legal advisor to the
Assistant Attorney General for
Citizenship and Immigration
Services. The General Counsel
would be responsible for: (1)
p r o v i d i n g legal ad vice ,
determinations, regulations, and
other assistance with regard to
matters affecting the Bureau of
Citizenship and Immigration
Services; and (2) representing
the bureau in matters pertaining
to the functions of the bureau.
§421(d)
Subject
CRS-30
Current law /
current administrative structurea
S.Amdt . 4471, as filed on
September 3, 2002
H.R. 5005, as passed by the
House on July 26, 2002
Chief of Congressional,
Intergovernmental, and Public Affairs
See Office of Congressional and Public
Affairs under the Commissioner in the
Status of INS section, page 17.
The act would create a Chief of
Congressional, Intergovernmental, and
Public Affairs position under the
Directorate, page 17. §1103
The act would create a Chief of
C o n g r e s s i o n a l ,
Intergovernmental, and Public
Affairs position that would be
responsible for: (1) providing
immigration services information
to Congress, (2) serving as a
liaison with other federal
agencies on immigration services
issues, and (3) responding to
media and public inquiries with
regard to immigration services
issues. §421(f)
Border Security Liaison
None.
No provision.
The act would create a Border
Security Liaison who would be
responsible for the allocation and
coordination of resources for the
purpose of supporting shared
support functions for the Bureau
of Border Security of the DHS.
The liaison is responsible for (1)
information resources
management, (2) records and file
management, and (3) forms
management. §421(g)
Chief of Office of Citizenship
None.
No provision.
The act would create a Chief of
the Office of Citizenship position
that would be responsible for
promoting instruction and
training on citizenship
responsibilities for aliens
i n t e r e s t e d i n b e c o mi n g
naturalized citizens. §421(h)
Subject
CRS-31
Subject
Office of the Ombudsman
Current law /
current administrative structurea
S.Amdt . 4471, as filed on
September 3, 2002
H.R. 5005, as passed by the
House on July 26, 2002
[The November 11, 2001 INS
Restructuring Plan creates an Office of
Customer Relations.]
The act would create an Office of the
Ombudsman in the Directorate, page 18.
§1106(a)
The act would create a
Citizenship and Immigration
Services Ombudsman position.
The Ombudsman would report
directly to the Deputy Attorney
General. §422(a)
Office of the Ombudsman
Responsibilities
[The November 11, 2001 INS
Restructuring Plan charges the Office of
Customer Relations with overseeing
customer service initiatives and issues in
the Bureau. The Office is responsible for
all aspects of customer relations,
including the following: (1) maintaining
the Customer Service Center; (2)
providing service-related information on
the INS website; (3) providing customer
satisfaction surveys; and (4) providing
service-related outreach to the public.
The Office also assists customers with
application-related difficulties.]
See above.
The act would require the
Ombudsman to have experience
in customer service and
immigration law.
The Ombudsman would be
responsible for assisting clients
and employers, identifying issues
pertaining to problems, resolving
them, and proposing changes in
administrative practices. The
Ombudsman is responsible for
identifying potential legislative
changes that could aid in
mitigating such problems.
§422(b)
CRS-32
Subject
Office of the Ombudsman (Cont.)
Current law /
current administrative structurea
S.Amdt . 4471, as filed on
September 3, 2002
See above.
No provision.
The act would require the
Ombudsman to: (1) monitor
the local offices of the
Ombudsman, including the
geographic allocation of such
offices; (2) develop guidelines
for all of the service bureau’s
officers and employees with
regard to the criteria for referral
of inquiries to local
Ombudsman offices; (3) ensure
that all local office telephone
numbers are published and
made available; and (4) meet
regularly with the director of
the service bureau to identify
problems and present
recommendations for resolution
of such problems. §422(d)
[The November 11, 2001 INS
Restructuring Proposal calls for the
Office of Customer Relations to refer
cases of employee misconduct to the
Office of Professional Responsibility,
located under the Commissioner, page
17.]
The act would charge the Ombudsman
with the responsibility and authority to
appoint local or regional representatives
of the Ombudsman’s Office as in the
Ombudsman’s judgment may be
necessary to address and rectify problems.
§1106(a)
The act would charge the
Ombudsman with the
responsibility and authority to
appoint local ombudsmen and
make available at least one
ombudsman for each state; and
to evaluate and take personnel
actions (including dismissal)
with respect to any employee of
any local office of the
Ombudsman. §422(e)
No provision.
No provision.
The act would require the
Bureau director to establish
procedures that would require a
formal response to all
recommendations submitted by
the Ombudsman within 3
months after the submission.
§422(f)
Responsibilities
Office of the Ombudsman
Personnel Actions
Office of the Ombudsman
H.R. 5005, as passed by the
House on July 26, 2002
CRS-33
Subject
Office of the Ombudsman
Local Ombudsmen
Current law /
current administrative structurea
See above.
S.Amdt . 4471, as filed on
September 3, 2002
No provision.
H.R. 5005, as passed by the
House on July 26, 2002
The act would require the local
ombudsmen to report to the
Ombudsman; and no tify
individuals and employers
seeking assistance of the local
office that the local Ombudsman
operates independently and
reports directly to Congress
through the Ombudsman.
The act would permit the local
ombudsman to consult with
relevant supervisory staff of the
service bureau with regard to the
daily operation of the local
office; and make the
determination not to disclose
individuals or employees seeking
its assistance to the service
bureau, at the local
ombudsman’s discretion.
The act would require each local
office of the Ombudsman to
maintain communication means,
including a post office address,
that is separate from the service
bureau. §422(g)
CRS-34
Subject
Office of the Ombudsman
Reporting Requirements
Current law /
current administrative structurea
None.
S.Amdt . 4471, as filed on
September 3, 2002
H.R. 5005, as passed by the
House on July 26, 2002
The act would require the Ombudsman to
report annually to Congress on the
objectives of the office for the upcoming
fiscal year. The act would require the
report to be submitted to Congress
without prior review or comment from
other officials.
The act would require the
Ombudsman to report no later
than June 30 of each year to
Congress on the objectives of the
office for the upcoming fiscal
year. The act would require the
report to be submitted to
Congress without prior review or
comment from other officials.
The act would require the report to have
analysis, statistical information, and the
following: (1) description of initiatives
the Directorate has taken with regard to
impro ving services and the
responsiveness of the bureau; (2) a
summary of the “most pervasive and
serious problems” experienced by
individuals and employers; (3) an
inventory of the aforementioned items for
which action has been taken; (4) an
inventory of the aforementioned items for
which action is still needed; (5) an
inventory of the aforementioned items for
which no action has been taken; (6)
recommendations for administrative and
legislative action, if necessary, to resolve
problems experienced by individuals and
employers; (7) recommendations to
resolve problems caused by inadequate
funding or staffing, and (8) any other
information the Ombudsman deems
necessary. §1106(a)
The act would require the report
to have analysis, statistical
information, and the following:
(1) identification of initiatives
the office has taken with regard
to improving services and the
responsiveness of the bureau; (2)
summary of the “most pervasive
and serious problems”
experienced by individuals and
employers; (3) inventory of the
aforementioned items for which
action has been taken; (4)
inventory of the aforementioned
items for which action is still
needed; (5) inventory of the
aforementioned items for which
no action has been taken; (6)
recommendations for
administrative and legislative
action, if necessary, to resolve
problems experienced by
individuals and employers; and
(7) any other information the
Ombudsman deems necessary.
§422(c)
CRS-35
Subject
Current law /
current administrative structurea
S.Amdt . 4471, as filed on
September 3, 2002
H.R. 5005, as passed by the
House on July 26, 2002
Interim Service of INS Commissioner
None.
T he act wo uld permit the INS
Commissioner to serve as Under
Secretary until one is appointed. §1117
The act would permit the
Attorney General or his/her
delegate to perform immigration
functions transferred by this
subchapter to the Bureau of
Citizenship and Immigration
Services. §426
Fees
Section 286(m) of the INA deposit all
adjudication fees as offsetting receipts
into separate accounts, with the exception
of fees collected from applicants in the
Virgin Islands and Guam.
Similar to current law, except would
require fees collected for service
programs to be used for that purpose (and
refugee and asylum processing if
insufficient funds are appropriated) and
would also require separate accounts to be
established in the Treasury of the U.S. for
service and enforcement bureaus. §1121
The act would maintain the INA
provision that fees for
adjudication and naturalization
services be deposited into the
Immigration Examinations Fee
Account.
The act would require amounts
appropriated to be made available until
expended. §1121
The act would require that fees
collected for adjudication and
naturalization services no longer
fund refugee and asylum
processing.
The act would authorize appropriations of
“such sums as may be necessary” for
refugee and asylum adjudications to be
deposited into the Immigration
Examinations Fee Account. §1121(c)
The act would authorize
appropriations of “such sums as
may be necessary”. §431
Current law /
current administrative structurea
S.Amdt. 4471, as filed on
September 3, 2002
H.R. 5005, as passed by the
House on July 26, 2002
[ The No v e mb e r 1 1 , 2 0 0 1 I NS
Restructuring Plan creates a separate
Bureau of Immigration Enforcement.]
The act would amend the INA by creating
a Bureau of Enforcement and Border
Affairs within the Directorate. §1105(a)
The act would create a Bureau of
Border Security within DHS.
§412(a)
Enforcement Bureau
Subject
Enforcement Bureau
CRS-36
Current law /
current administrative structurea
S.Amdt. 4471, as filed on
September 3, 2002
H.R. 5005, as passed by the
House on July 26, 2002
Bureau Head
[Th e No v e mb e r 1 1 , 2 0 0 1 INS
Restructuring Plan calls for an Executive
Co mmissio n er for Immigration
Enforcement to head the Bureau. Under
the Executive Commissioner for
Immigration Enforcement would be the
Chief of the Border Patrol and Interior
Enforcement Division, the Director of the
Detention and Removal Division, and the
Director of the International Division.]
The act would charge an Assistant
Secretary of Homeland Security for
Enforcement and Border Affairs (who
would be appointed by the Secretary of
Homeland Security in consultation with
the Under Secretary to head the Bureau).
§1105(a)
The act would charge an
Assistant Secretary of the Bureau
of Border Security to head the
Bureau. §412(a)
Requirement
No provision.
No provision.
The act would require the
Assistant Secretary of the Bureau
of Border Security to have a
minimum of 10 years experience
in law enforcement. §412(a)
Compensation
No provision.
The act would require the Assistant
Secretary of Homeland Security for
Enforcement and Border Affairs to be
compensated at Level IV of the Executive
Schedule. §1105(b)
No provision.
Subject
CRS-37
Subject
Functions of the Enforcement Bureau
Current law /
current administrative structurea
S.Amdt. 4471, as filed on
September 3, 2002
H.R. 5005, as passed by the
House on July 26, 2002
[The November 11, 2001 INS
Restructuring Plan charges the Bureau
with enforcing U.S. immigration laws and
protecting the border.]
The act would charge the Assistant
Secretary of Homeland Security for
Enforcement and Border Affairs (under
the authority of the Under Secretary) with
administering immigration enforcement
functions, including the following
functions: (1) border patrol function, (2)
immigration detention function, except
asylum seekers, (3) removal function, (4)
intelligence function, and (5)
investigation function, including training
of personnel. §1105(a)
The act would require the
Assistant Secretary of the Bureau
of Border Security to establish
and oversee the administration of
relevant policies and advise the
Under Secretary for Border and
Transportation Security with
respect to any policy or
operation that may affect the
Bureau of Citizenship and
Immigration Services in DOJ.
§412(a)
The act would require the Under
Secretary of the Bureau of
Border Security to establish the
policies for performing the
following functions: (1) border
patrol, (2) detention and
removal, (3) intelligence, (4)
investigations and (5)
inspections. §412(a)(3)(A)
CRS-38
Subject
Foreign Student Monitoring
Current law /
current administrative structurea
The law requires the Attorney General, in
consultation with the Secretaries of State
and Education, to collect information on
F, J, and M nonimmigrants (i.e., students
and cultural exchange participants) from
approved educational institutions and
designated exchange programs. The act
requires the information to be collected
electronically “where practical.”
§641(a)(c)(3) of Illegal Immigration and
Reform and Immigrant Responsibility Act
(IIRIRA) of 1996.
The Enhanced Border Security and Visa
Entry Reform Act (EBSVERA) of 2002
amended IIRIRA by requiring the
Attorney General, in consultation with the
Secretary of State, to establish electronic
means to monitor and verify:
documentation of acceptance of student
by approved school or designated
exchange program; transmittal of
documentation to DOS Bureau of
Consular Affairs; issuance of
nonimmigrant visa to student or exchange
visitor; admission of student or exchange
visitor to the U.S.; notice to school or
exchange program that nonimmigrant has
been admitted to the U.S.; registration and
enrollment of nonimmigrant in school or
exchange program; and any other relevant
act by the nonimmigrant, including
changing schools or programs.
§501(a)(1) of EBSVERA.
S.Amdt. 4471, as filed on
September 3, 2002
No provision.
H.R. 5005, as passed by the
House on July 26, 2002
The act would require the
Assistant Secretary to administer
this program to collect
information on nonimmigrant
foreign students and other
exchange program participants.
§412(a)(4)
CRS-39
Subject
Managerial Rotation Program
Current law /
current administrative structurea
None.
S.Amdt. 4471, as filed on
September 3, 2002
No provision.
H.R. 5005, as passed by the
House on July 26, 2002
The act would require the
Assistant Secretary of the Bureau
of Border Security, no later than
1 year after the date on which the
transfer of functions specified in
Section 411 (immediately before
such transfer occurs), to design
and implement a managerial
rotation program under which
Bureau employees holding
positions involving supervisory
or managerial responsibility and
classified at GS-14 or above,
would, as a condition on further
promotion, gain some experience
in all the major functions
performed by the Bureau and
work in at least one local office
of the Bureau. §412(a)(5)(A)
The act would require the
Secretary to submit a report to
Congress on the implementation
of the program not later than 2
years after the date on which the
transfer of functions specified at
Section 411 takes effect.
§412(a)(5)(B)
CRS-40
Subject
Functions of the Executive
Commissioner for Immigration
Enforcement/Under Secretary/ Assistant
Secretary of the Bureau of Border
Security
Current law /
current administrative structurea
S.Amdt. 4471, as filed on
September 3, 2002
H.R. 5005, as passed by the
House on July 26, 2002
[The November 11, 2001 INS
Restructuring Plan charges the Executive
Commissioner with providing overall
leadership to the Bureau.]
The act would charge the Under Secretary
(under the direction of the Secretary)
acting through the Assistant Secretary for
I mmigr atio n Enfor cement with
establishing offices, including sub-offices
and satellite offices, throughout the U.S.
that are in line with trends of unlawful
entry and national security concerns.
The act would require the
Assistant Secretary of the Bureau
of Border Security to establish
and oversee the administration of
relevant policies and advise the
Under Secretary for Border and
Transportation Security with
respect to any policy or
operation that may affect the
Bureau of Citizenship and
Immigration Services in DOJ.
§412(a)
The act would require the Under
Secretary to conduct periodic reviews of
the offices and their locations to
determine their appropriateness.
§1105(c)
Employee Discipline
None.
No provision.
The act would permit the Under
Secretary for Border and
T r a n s p o r t a t i o n S e c u r i ty,
notwithstanding any other
provision of law, to impose
disciplinary action, including
termination of employment,
pursuant to policies and
procedures applicable to FBI
employees, on any employee of
the Bureau who willfully
deceives the Congress or agency
leadership on any matter. §414
CRS-41
Current law /
current administrative structurea
S.Amdt. 4471, as filed on
September 3, 2002
H.R. 5005, as passed by the
House on July 26, 2002
Offices and Positions within the Bureau
[Under the November 11, 2001 INS
Restructuring Plan the following offices
or positions would continue to exist or be
created under or adjunct to the Executive
Co mmissioner for Immig ra tio n
Enforcement: (1) Ombudsman; (2) Office
of Quality Assurance; (3) Interagency
Liaison Officer; (4) Chief Border Patrol
and Interior Enforcement Division; (5)
Director of the Detention and Removal
Division; and (6) Director of the
International Division.]
The act would create the following offices
and positions within the Bureau: (1)
Chief Budget Officer; (2) Office of
Professional Responsibility; and (3)
Office of Quality Assurance. §1105(a)
The act would create the
following offices and positions
within the Bureau: (1) Chief of
Policy and Strategy; (2)
Citizenship and Immigration
Services Liaison; and (3)
Professional Responsibility and
Quality Review. §412(b)(c), and
§413
Chief Budget Officer
See Chief Financial Officer under the
Commissioner in the Status of INS
section, page 16.
The act would create a Chief Budget
Officer position in the enforcement
bureau. The Chief Budget Officer would
report to the Chief Financial Officer of
the Directorate.
The Chief Budget
Officer would be responsible for
monitoring and supervising all financial
matters of the bureau. §1105(a)
No provision.
Office of Professional Responsibility (S.
2452) Professional Responsibility and
Quality Review (H.R. 5005)
See Office of Professional Responsibility
under the Commissioner in the Status of
INS section, page 17.
The act would create an Office of
Professional Responsibility that would be
responsible for ensuring the
professionalism of the Bureau and
accepting and investigating charges of
employee misconduct made by the public.
§1105(a)
The act would make the Under
Secretary for Border and
Transportation Security
responsible for: (1) conducting
investigations of employees of
the bureau with regard to
allegations involving
no nc r i mi n a l mi s c o n d uct,
corruption and fraud that is not
subject to investigation by the
Inspector General; (2) inspecting
the operations of the bureau and
providing assessments with
regard to the quality of
operations; and (3) providing an
analysis of the management of
the Bureau. §413
Subject
CRS-42
Current law /
current administrative structurea
S.Amdt. 4471, as filed on
September 3, 2002
Office of Quality Assurance
[The November 11, 2001 INS
restructuring plan creates an Office of
Quality Assurance that is responsible for
monitoring the enforcement activities.]
The act would create an Office of Quality
Assurance that would be responsible for
ensuring that the Directorate’s policies
with regard to the enforcement bureau’s
functions are properly carried out, and
ensuring efficient record management.
§1105(a)
No provision.
Chief of Policy
See Chief of Policy under the
Commissioner in the Status of INS
section, page 17.
The act would create a Chief of Policy
position under the Directorate, page 17.
§1103
The act would create a Chief of
Policy and Strategy who would
be responsible for:
(1)
establishing national
immigr atio n enfo r cement
policies and priorities, (2)
performing research and analysis
on immigration enforcement
issues, and (3) coordinating
policy issues with the Chief of
Policy and Strategy for the
Bureau of Citizenship and
Immigration Services in DOJ.
§412(b)
Citizenship and Immigration Services
Liaison
None.
No provision.
The act would create a
Citizenship and Immigration
Services Liaison who would be
responsible for the allocation and
coordination of resources for the
purpose of supporting “shared
support functions” for DOJ’s
Bureau of Citizenship and
Immigration Services and DHS’s
Bureau of Border Security. The
liaison would also be responsible
for: (1) facilities management,
(2) information resources
management, (3) records and file
management, and (4) forms
management. §412(c)
Subject
H.R. 5005, as passed by the
House on July 26, 2002
CRS-43
Subject
Current law /
current administrative structurea
S.Amdt. 4471, as filed on
September 3, 2002
H.R. 5005, as passed by the
House on July 26, 2002
Interagency Liaison Officer
[The November 11, 2001 INS
Restructuring Proposal creates an
interagency Liaison Officer who is
responsible for facilitating information
sharing with other federal, state, and
local agencies.]
No provision.
No provision.
Ombudsman
[The November 11, 2001 INS
Restructuring Proposal creates an Office
of the Ombudsman that provides the
following: (1) the public a means of
communication with regard to
enforcement activities and (2) a
resolution to complaints and allegations
of serious misconduct to the Office of
Professional Responsibility. The plan
provides a representative of the
Ombudsman for the Border Patrol and
Interior Enforcement Division and the
Detention and Removal Division.]
See Office of the Ombudsman under the
Directorate, page 18. §1106(a)
See Office of the Ombudsman
under the Service Bureau, page
31. §422(a)
Chief of Border Patrol and Interior
Enforcement Division
[The November 11, 2001 INS
Restructuring Proposal creates a position
of Chief of Border Patrol and Interior
Enforcement Division that has
responsibility over all of the INS-related
law enforcement components.]
No provision.
No provision.
Director of the Detention and Removal
Division
[The November 11, 2001 INS
restructuring plan creates a position of
Director of Detention and Removal who
has overall responsibility over INS
detention facilities.]
No provision.
No provision.
Director of the International Division
[The November 11, 2001 INS
restructuring plan creates a position of
Director of the International Division
who is in charge of foreign government
training and liaison and enforcement
functions.]
No provision.
No provision.
CRS-44
Unaccompanied Alien Children
Subject
Current law /
current administrative structurea
S.Amdt. 4471, as filed on
September 3, 2002
H.R. 5005, as passed by the
House on July 26, 2002
Title of the Act
None.
The act would provide the following title:
“Unaccompanied Alien Child Protection
Act of 2002.” §1201
No provision.
Definitions
The law establishes an Office of Refugee
Resettlement headed by a Director in the
Department of Health and Human
Services. §411(a)
The act would define (1) Director as the
Director of the (2) Office of Refugee
Resettlement (ORR); (3) Office as the
ORR; Service as INS; (4) Unaccompanied
Alien Child as having no lawful
immigration status in the U.S., has not
reached the age of 18, has no parent or
legal guardian in the U.S. or has no parent
or legal guardian in the U.S. available to
provide care and physical custody; (5)
voluntary agency as a private, nonprofit
voluntary agency that has expertise in
meeting the needs of unaccompanied
alien children and is licensed
appropriately; and (6) unaccompanied
refugee children as having no lawful
immigration status in the U.S., has not
reached the age of 18, has no parent or
legal guardian in the U.S. or has no parent
or legal guardian in the U.S. available to
provide care and physical custody. §1202
The act would provide a similar
definition for unaccompanied
alien child. The act would define
placement as placing an
unaccompanied minor in a
detention facility or an
alternative facility. §436(g)
CRS-45
Subject
Functions
Current law /
current administrative structurea
S.Amdt. 4471, as filed on
September 3, 2002
H.R. 5005, as passed by the
House on July 26, 2002
See Office of Juvenile Affairs under the
Commissioner, page 20.
The act would charge the Director with
the following responsibilities pertaining
to unaccompanied alien children: (1)
coordinate and implement law and policy;
(2) assure that their interests are
considered in all decisions pertaining to
his/her care and custody; (3) make
placement, release and detention
determinations on all unaccompanied
minors in custody; (4) implement all
placement, release and detention
determinations made by the Office; (5)
convene, in the absence of the Assistant
Secretary of the Administration for
Children and Families of DHHS, the
Interagency Task Force on
Unaccompanied Alien Children; (6)
identify adequate and qualified
individuals, entities, and facilities to
house unaccompanied minors; (7) oversee
facilities and personnel that house and
care for unaccompanied minors; (8)
compile, update, and publish on an annual
basis a list by states of professionals or
entities qualified to contract with the
Office to provide relevant services; (9)
maintain statistics and other data on
unaccompanied minors including
biographical information, the date the
minor came into custody, placement,
removal, or release information and an
explanation for all detention and release
cases, and information on dispositions
pertaining to unaccompanied minors; (10)
collect and compile statistics from the
Service on unaccompanied alien minors
with whom they come into contact; and
(11) conduct investigations and
inspections of facilities that house
unaccompanied minors; and (12) conduct
Similar provision, except the act
also encourages the Office to
reunite unaccompanied alien
children with their families
abroad when appropriate.
§436(a)(b)
CRS-46
Subject
Current law /
current administrative structurea
S.Amdt. 4471, as filed on
September 3, 2002
H.R. 5005, as passed by the
House on July 26, 2002
investigations and inspections of facilities
that house unaccompanied minors. §1211
Placement Decisions
[Note: 8 CFR §236.3 sets out current
policy for detention and release of
unaccompanied alien minors in INS
custody.]
No provision.
The act would requires the
Director of ORR to consult the
appropriate juvenile justice
professionals and the directors of
the service and enforcement
Bureaus when making placement
decisions with regard to
unaccompanied minors to assure
the following:
(1) that
unaccompanied minors are likely
to appear for all of their
hearings; (2) that unaccompanied
minors are protected from
smuggling, traffickers, and
others who might victimize them
or engage them in illegal
activities; and (3) that
unaccompanied minors are
placed in a safe setting.
The act would prohibit the
Director of ORR from releasing
unaccompanied minors on their
own recognizance. §436(b)(2)
Interagency Task Force
None.
The act would establish an interagency
task force on unaccompanied alien
children with representatives from
DHHS, DHS, and DOS and other
agencies designated by the President.
The act would charge the DHHS
Assistant Secretary for Children and
Families to chair the interagency task
force. §1212
No provision.
CRS-47
Subject
Procedures for Handling
Unaccompanied Alien Minors
Current law /
current administrative structurea
[See 8 CFR §236.3]
S.Amdt. 4471, as filed on
September 3, 2002
The act would establish procedures to
handle unaccompanied alien children at
the border, or at ports of entry.
H.R. 5005, as passed by the
House on July 26, 2002
No provision.
The act would allow for removal of alien
children if deemed inadmissible under the
INA, unless the child is a national of a
country contiguous to the U.S. and who
fears persecution or would be harmed if
returned to that country.
The act would place custody of all
unaccompanied alien children found in
the interior of the United States under the
jurisdiction of the ORR, with exception of
children who have committed crimes and
or threaten national security. §1221
Family Reunification
[See 8 CFR §236.3]
T h e a c t wo u l d e n c o u r a g e f a m i l y
reunification by requiring ORR to place
an unaccompanied alien child with one of
the following in order of preference: (1)
a parent; (2) a legal guardian; (3) an adult
relative; (4) an entity designated by the
parent or legal guardian; (5) a statelicensed juvenile shelter or group home;
or (6) other qualified adults or entities.
§1222
No provision.
CRS-48
Subject
Detention Standards
Current law /
current administrative structurea
None.
S.Amdt. 4471, as filed on
September 3, 2002
The act would require ORR to: (1)
establish appropriate standards and
conditions for the detention of
unaccompanied alien children; (2)
provide appropriate educational services,
medical and mental health care; (3)
provide access to telephones, legal
services, and interpreters; (4) provide
supervision by professionals trained in the
care of children; (5) provide recreational
programs and activities, (6) provide
spiritual and religious needs; and (7)
provide dietary needs.
H.R. 5005, as passed by the
House on July 26, 2002
No provision.
The act would prohibit shackling,
handcuffing, or other restraints; solitary
confinement; or pat or strip searches of
children. §1223
Sense of Congress
Repatriation of Children
None.
The act would state that it is a sense of
Congress that the United States shall
undertake efforts to ensure that it does not
repatriate children in its custody into
settings that would threaten the life and
safety of the child.
No provision.
The act would require ORR to assess
conditions of countries to which alien
children may be repatriated; would
require ORR to submit a report to
Congress providing information on
efforts to repatriate unaccompanied
children. §1224
Determination of Age
None.
The act would require ORR to establish
procedures for determining age of
children. §1225
No provision.
CRS-49
Subject
Guardian ad litem
Current law /
current administrative structurea
None.
S.Amdt. 4471, as filed on
September 3, 2002
The act would require ORR, no later than
72 hours after it assumes custody of an
unaccompanied alien child, to appoint a
guardian ad litem to look after the child’s
best interests.
H.R. 5005, as passed by the
House on July 26, 2002
No provision.
The act would establish qualifications,
duties, and powers of the guardian ad
litem. §1231
Counsel
None.
The act would require ORR to ensure that
all unaccompanied alien children have
competent legal counsel appointed to
represent them in immigration
proceedings.
No provision.
The act would encourage ORR to utilize
pro bono attorneys; otherwise, the ORR
would appoint government-funded
counsel. §1232
Effective Date
None.
The act would set the effective date as 1
year after effective date of enactment of
Division A of this act.
No provision.
The act would make the provision
applicable to all such children in federal
custody on, before, or after the effective
date of the subtitle. §1233
Immigrant Status
The law defines a “special immigrant”
preference category for admission as a
legal permanent resident. §101(a)(27)
The act would amend the special
immigrant provisions in §101(a) (27)(J)
of the INA to enable abused, neglected
and abandoned alien youths who become
wards of the court to adjust to legal
permanent resident status. §1241
No provision.
CRS-50
Subject
Current law /
current administrative structurea
S.Amdt. 4471, as filed on
September 3, 2002
H.R. 5005, as passed by the
House on July 26, 2002
Training for Personnel Working with
Unaccompanied Alien Children
None.
The act would require DHHS and DHS to
jointly offer training to state and local
officials involved in dependency
proceedings, social service providers, as
well as DHS immigration personnel who
come into contact with unaccompanied
alien children. §1242
No provision.
Sense of Congress on Refugee Children
None.
The act would exp r ess a sense of
Congress commending INS for the
issuance of its Guidelines for Children’s
Asylum Claims.
No provision.
The act would require the Secretary of
Homeland Security to provide training to
asylum officers, immigration judges,
members of the Board of Immigration
Appeals and immigration officers on
these guidelines. §1251
Analysis of Situation of Refugee
Children
None.
The act would require an analysis of the
situation faced by unaccompanied refugee
children around the world and require
training on the needs of these children.
§1252
No provision.
Authorization for Appropriations
Funds are appropriated annually for INS
under the Commerce, Justice, State, the
Judiciary and Related Agencies
Appropriations Act.
The act would authorize appropriations,
“such sums as may be necessary,” to
carry out this Title.
No provision.
The act would require the amount
appropriated to remain available until
expended. §1261
CRS-51
Visa Issuance Functions
Current law /
current administrative structurea
S.Amdt. 4471, as filed on
September 3, 2002
H.R. 5005, as passed by the
House on July 26, 2002
Visa Issuance
The INA specifies that the Secretary of
State administers and enforces the
provisions of all immigration laws
pertaining to the powers, duties, and
functions of the diplomatic and consular
officers, except the powers, duties, and
functions relating to granting or refusing
visas that are directly conferred on
consular officers. §104(a)
The act would give the Secretary of DHS
authority to issue regulations on visa
policy, but would provide that the
Secretary may delegate this authority to
the Secretary of State. §102(c)(2)
The act would give the Secretary
of DHS authority to issue
regulations on visa policy.
§403(a)
Exclusion on Basis of National Security
The law bars from entry into the U.S. any
alien who has engaged in or incited
terrorist activity, is reasonably believed to
be carrying out a terrorist activity, or is a
representative or member of a designated
foreign terrorist organization. The USA
PATRIOT Act added representatives of
groups that endorse terrorism, prominent
individuals who endorse terrorism, and
spouses and children of aliens who are
deportable on terrorism grounds on the
basis of activities occurring within the
previous 5 years. §212(a)(3) [Note:
When §601 of the Immigration Act of
1990 rewrote §212(a) of the INA, it made
current law significantly more
circumscribed in regard to the discretion
to exclude aliens on general, foreign
policy and security grounds.]
The act would expand the current
exclusion authority of the Secretary of
State by permitting the Secretary to direct
a consular officer to exclude an alien
when necessary or advisable in the
foreign policy or security interests of the
U.S. §102(c)(2)
Similar provision. §403(b)
Subject
CRS-52
Current law /
current administrative structurea
S.Amdt. 4471, as filed on
September 3, 2002
H.R. 5005, as passed by the
House on July 26, 2002
Exclusion on Other Foreign Policy and
National Security Grounds
Other laws in addition to the INA exclude
aliens based upon findings including:
aliens abroad who espouse or endorse
terrorist activities; aliens in possession of
property confiscated or nationalized by
the Cuban government; and aliens found
to have disclosed certain business records
in violation of the Chemical Weapons
Convention. §104 of the Cuban Liberty
and Democratic Solidarity Act of 1996;
§801 of the Admiral James Nance and
Meg Donovan Foreign Relations
Authorization; §568 of the Foreign
Operations, Export Financing, and
Related Programs Appropriations Act;
§51 of the State Department Basic
Authorities Act of 1956; and §103(f) of
the Chemical Weapons Convention
Implementation Act of 1998.
The act would retain these findings,
including: designation of aliens abroad
who espouse or endorse terrorist
activities; aliens in possession of property
confiscated or nationalized by the Cuban
government; and exclusion of aliens
found to have disclosed certain business
records in violation of the Chemical
Weapons Convention. §102(c)(2)
Similar provision, except it does
not specify violations of the
Chemical Weapons Convention.
§403(b)(2)
Convention on Protection of Children
and Cooperation in Respect to InterCountry Adoption
The Intercountry Adoption Act of 1999
(P.L. 106-279, §102) gives the Secretary
of State certain responsibilities pertaining
to the Convention on Protection of
Children and Cooperation in Respect to
Inter-Country Adoption.
The act would retain the authority of the
Secretary of State with respect to the
exclusion of violators of the Convention
on Protection of Children and
Cooperation in Respect to Inter-Country
Adoption.
Similar provision. §403(b)(2)
Assignment of Employees
No provision.
The act would authorize assignment of
homeland security employees to
diplomatic and consular posts for advice,
review and investigations. §102(c)(5)(A)
Similar provision. §403(c)(1)
Subject
CRS-53
Subject
Personnel Assigned to Terrorist
Lookout Committee
Current law /
current administrative structurea
S.Amdt. 4471, as filed on
September 3, 2002
H.R. 5005, as passed by the
House on July 26, 2002
Secretary of State is required to establish
a terrorist lookout committee within each
overseas U.S. mission that includes a
consular post. The composition of the
committee includes representatives of
relevant law enforcement and intelligence
entities. The purpose of the committee is
to (1) identify potential terrorists and
develop information on such individuals;
(2) ensure that the names of suspected
terrorists are routinely and consistently
brought to the attention of consular posts;
and (3) ensure that the names of
suspected terrorists are entered into the
appropriate databases. Section 304 of
Enhanced Border Security and Visa Entry
Reform Act of 2002.
The act would provide for homeland
security personnel assigned overseas to
participate in the terrorist lookout
committees established by §304 of
Enhanced Border Security and Visa Entry
Reform Act of 2002. §403(c)(2)
Similar provision. §102(c)(5)(B)
CRS-54
Subject
Training and Hiring of Personnel
Current law /
current administrative structurea
S.Amdt. 4471, as filed on
September 3, 2002
H.R. 5005, as passed by the
House on July 26, 2002
The Enhanced Border Security and Visa
Entry Reform Act of 2002 charges the
Secretary of State with (1) implementing
enhanced security measures for review of
visa applicants; (2) enhancing the
interface between the United States and
international intelligence information; (3)
adequately staffing the programs
associated with visa issuance and foreign
intelligence; and (4) providing ongoing
training for consular officers. It also
authorizes to be appropriated such sums
as may be necessary to accomplish these
directions. §101(e) of EBSVERA.
The act would require the Secretary to
ensure that any employees of DHS
assigned to perform functions described
at §102(c)(5)(A) [relating to visa
applications] and, as appropriate, consular
officers, would be provided all necessary
training to enable them to carry out such
functions, including training in foreign
languages, in conditions in the particular
country where each employee is assigned,
and in other appropriate areas of study.
The act would require the
Secretary to ensure that any
employees of the DHS assigned
to perform functions described in
§403(c)(1) [relating to visa
applications] would be provided
all necessary training to enable
them to carry out such functions,
including training in foreign
languages, interview techniques,
fraud detection techniques, and
other skills required by such
employees, in conditions in the
particular country where each
employee is assigned, and in
other appropriate areas of study.
The act would require that before
assigning employees to perform the
functions, the Secretary would prescribe
regulations to establish foreign language
proficiency requirements for employees.
The act would require a preference in
hiring employees to perform such
functions to be given to those who meet
such requirements.
The act would permit the Secretary to use
the National Foreign Affairs Training
Center, on a reimbursable basis, to obtain
the training. §102(c)(5)(C)
The act would require the
Secretary to prescribe
regulations within 60 days of the
act’s enactment to establish
foreign language proficiency
requirements for employees
performing the functions.
Preference in hiring employees
to perform such functions would
be given to those who meet such
requirements.
The act would permit the
Secretary to use the National
Foreign Affairs Training Center,
on a reimbursable basis, to
obtain the training. §403(c)(3)
Definition of Consular Officer
The law defines a consular officer as any
consular, diplomatic, or other officer or
employee of the United States
government designated under INA to
issue visas. §101(a)(9).
The Act would clarify that this definition
is retained. §102(c)(1).
No provision.
CRS-55
Subject
Current law /
current administrative structurea
S.Amdt. 4471, as filed on
September 3, 2002
H.R. 5005, as passed by the
House on July 26, 2002
Non-reviewability of Consular
Decisions
The law gives only consular officers the
authority to issue visas. §221
No provision.
The act would assert that current
law on the non-reviewability of
consular decisions remains.
§403(d)
Report to Congress on Use of Foreign
Nationals
No provision.
No provision.
The act would require a study
and report to Congress on the use
of foreign nationals in the
process of rendering decisions in
the visa issuance process,
specifically addressing national
security concerns and costeffective alternatives. §403(e)
Report to Congress on Affect on
Student Visas
No provision.
No provision.
Requires the Director of the
O ffice o f Scien c e a n d
Technology Policy to submit a
report to Congress within 120
days on the affect of §403 on the
issuances of visas to students.
§403(f)
Visa Issuance Program in Saudi Arabia
No provision.
No provision.
The act would create a special
visa issuance program in Saudi
Arabia that would require all
interviews to be conducted by
homeland security personnel.
§403(g)
CRS-56
The Executive Office for Immigration Review (EOIR)
Current law /
current administrative structurea
S.Amdt. 4471, as filed on
September 3, 2002
EOIR
[Note: The Attorney General created
EOIR by regulation in 1983 as an agency
independent from the INS.
EOIR
administers and interprets immigration
laws and regulations through the
immigration court proceedings, appellate
reviews, and administrative hearings in
individual cases. There are three main
components to EOIR: the Board of
Immigration Appeals; the Office of the
Chief Immigration Judge; and the Office
of the Chief Administrative Hearing
Officer. 8 CFR Part 3]
The act would prohibit the contents of
this act to be construed to authorize or
require the transfer of EOIR. §1118
No provision.
Status of EOIR
New Agency
See above 8 CFR Part 3
The act would abolish the Executive
Office for Immigration Review and
establish within DOJ an Agency of
Immigration Hearings and Appeals with
similar responsibilities. §1301
No provision.
Agency Head
See above 8 CFR Part 3
The act would place a Director who is
appointed by the President with the
advice and consent of the Senate to head
the agency. §1302
No provision.
Board of Immigration Appeals
See above 8 CFR Part 3
The act would provide authority for the
Board of Immigration Appeals with a
chair and not less than 14 other
immigration appeals judges. §1303
No provision.
Chief Immigration Judge
See above 8 CFR Part 3
The act would provide authority for a
chief immigration judge and immigration
courts. §1304
No provision.
Chief Administrative Hearing Officer
See above 8 CFR Part 3
The act would provide authority for a
chief administrative hearing officer.
§1305
No provision.
Subject
H.R. 5005, as passed by the
House on July 26, 2002
CRS-57
Subject
Current law /
current administrative structurea
S.Amdt. 4471, as filed on
September 3, 2002
H.R. 5005, as passed by the
House on July 26, 2002
Removal of Judges
No provision.
The act would provide that the Director
may remove judges for good cause
(including malfeasance and neglect of
duty) in consultation with the Chief
Immigration Judge in cases involving
judges and the Board Chair in cases
involving Board members. §1306
No provision.
Transition
No provision.
Same as §1311, Transition in Part V.
No provision.
The act would transfer EOIR’s functions,
allocation of appropriations, personnel
and legal documents to a newly created
agency in DOJ. The act would require
that all of EOIR’s decisions, orders, and
proceedings continue in the new agency.
§1311
Effective Date
No provision.
The act would set the effective date as 1
year after effective date of enactment of
Division A of this act.
No provision.
CRS-58
Transition
Subject
Transfer of Functions
Current law /
current administrative structure
None.
S.Amdt. 4471, as filed on
September 3, 2002
H.R. 5005, as passed by the
House on July 26, 2002
The act would require the transfer of all
immigration functions under U.S.
immigration laws vested by statute or
exercised by the Attorney General to the
Secretary of DHS before the effective date
of the enactment of this Title.
See below, §411, §421(b) and
§428(a).
The act would require the transfer of all
immigration functions under U.S.
immigration laws vested by statute or
performed by the INS Commissioner to
the Directorate of Immigration Affairs
before the effective date of the enactment
of this Title. §1111
Transfer of Enforcement Functions
None.
See above, §1111.
The act would transfer from the
INS Commissioner to the Under
Secretary for Border and
Transportation Security
immediately before the transfer
occurs all personnel, assets and
liabilities pertaining to the
following functions: (1) border
patrol, (2) detention and
removal, (3) intelligence, (4)
investigations and (5)
inspections. §411
Transfer of Service Functions
None.
See above, §1111.
T he act wo uld r eq uir e t h e
Commissioner of INS to
transfer to the Assistant
Attorney General for
Citizenship and Immigration
Services the functions,
personnel, infrastructure and
funding pertaining to all
adjudications performed by
INS. §421(b)
CRS-59
Subject
Current law /
current administrative structure
S.Amdt. 4471, as filed on
September 3, 2002
H.R. 5005, as passed by the
House on July 26, 2002
Reference in Law
None.
The act would require any reference in
any statute, Executive Order, regulation,
agreement, determination, or official
document or proceeding to the
Commissioner of INS deemed to refer to
the Under Secretary of Immigration
Affairs. §1103(f)
The act would transfer any
reference in federal law,
executive order, rule,
regulation, delegation of
authority, or any document or
component of government to
the Assistant Attorney General
for Citizenship and Immigration
Services. §428(a)
Transfer of Personnel and Related
Resources
None.
The act would require the transfer and
allocation of personnel, assets, liabilities,
contracts, property, records, unexpended
balance of appropriations, authorizations,
allocations, and other relevant funds from
DOJ to the Under Secretary for allocation
to the appropriate component. §1112
See below, §411 and §428(a).
Transfer and Allocation of Personnel
and Resources
None.
The act would require the Under Secretary
to determine the allocation of resources.
§1113
The act would require the
transfer (including additional
incidental transfer) and
allocation of personnel, assets,
liabilities, contracts, property,
records, unexpended balance of
appropriations, authorizations,
allocations, and other relevant
funds from DOJ (with respect to
immigration service functions)
to the Assistant Attorney
General for Citizenship and
Immigration Services for
allocation to the appropriate
component of DOJ. §428(b)(3)
Transfer of Unexpended Funds
None.
The act would require that unexpended
funds in place prior to the transfer be used
for their original purpose. §1113
Similar provision. §428(a)(3)
CRS-60
Subject
Current law /
current administrative structure
S.Amdt. 4471, as filed on
September 3, 2002
H.R. 5005, as passed by the
House on July 26, 2002
Delegation of Functions
None.
The act would require the Under
Secretary, under the direction of the
Secretary, to delegate immigration
functions to the Assistant Secretary of the
service and enforcement bureaus. §1114
The act would permit the
Attorney General to realign staff
and funds. §428(b)(4)
Allocation of Personnel and Shared
Resources
None.
The act would give authority to the Under
Secretary to terminate affairs of INS.
No provision.
The act would also authorize the Under
Secretary to provide for an appropriate
allocation and/or coordination of shared
resources between both Bureaus. §1115
Transition Funding
None.
The act would authorize appropriations of
such sums as may be necessary to abolish
INS; to establish the Directorate of
Immigration Affairs, its components and
its Bureaus; and to transfer relevant
functions to the Directorate and the
Bureaus.
The act would support the following
activities: (1) planning for the transfer,
(2) acquiring, dividing or disposing of
property, and (3) other expenditures
necessary to effect the transfer.
The act would require the amount
appropriated to remain available until
expended.
The act would establish a transition
account for the transfer and would require
the Secretary to report to Congress, no
later than 90 days after the effective date
of this Division, the availability of funds
to cover the transition cost. §1120
None.
CRS-61
Subject
Current law /
current administrative structure
S.Amdt. 4471, as filed on
September 3, 2002
H.R. 5005, as passed by the
House on July 26, 2002
Transfer of Unaccompanied Alien
Minors Functions
None.
The act would require the transfer of all
matters pertaining to the care and custody
of unaccompanied alien children to the
Director of the Office of Refugee
Resettlement (ORR) of DHHS. §1213(a)
The act would require the
transfer of all matters pertaining
to the care of unaccompanied
alien children to the Director of
ORR of DHHS. §436(a)
Transfer of Unaccompanied Alien
Minors Functions
None.
The act would require the transfer and
allocation of personnel, assets, liabilities,
contracts, property, records, unexpended
balance of appropriations, authorizations,
allocations, and other relevant funds from
INS (with respect to the unaccompanied
alien minors functions) to the Director of
the Office of Refugee Resettlement for
allocation to the appropriate component of
the Department of Health and Human
Services. §1213(b)(c)
Similar provision, except would
add the following: would permit
the relevant federal official to
whom the unaccompanied alien
minors function is transferred to
exercise authorities under law,
with respect to performing the
function, that were available
prior to the transfer.
§436(f)(1)(3)
The act would require that unexpended
funds be used for their original purpose.
§1213(b)(c)
Transfer of the Executive Office for
Immigration Review Functions
None.
The act would transfer EOIR’s functions,
allocation of appropriations, personnel
and legal documents to a newly created
agency in DOJ.
The act would require that all of EOIR’s
decisions, orders, and proceedings
continue in the new agency. §1311
No provision.
CRS-62
Reporting Requirements
Subject
Report on the Office of the Ombudsman
Current law /
current administrative structure
None
S.Amdt. 4471, as filed on
September 3, 2002
H.R. 5005, as passed by the
House on July 26, 2002
The act would require the Ombudsman
to report annually to Congress on the
objectives of the office for the
upcoming fiscal year. The act would
require the report to be submitted to
Congress without prior review or
comment from other officials. The act
would require the report to have
analysis, statistical information, and the
following: (1) description of initiatives
the Directorate has taken with regard to
i mp r o v i ng services and the
responsiveness of the bureau; (2) a
summary of the “most pervasive and
serious problems” experienced by
individuals and employers; (3) an
inventory of the aforementioned items
for which action has been taken; (4) an
inventory of the aforementioned items
for which action is still needed; (5) an
inventory of the aforementioned items
for which no action has been taken; (6)
recommendations for administrative
and legislative action, if necessary, to
resolve problems experienced by
individuals and employers; (7)
recommendations to resolve problems
caused by inadequate funding or
staffing, and (8) any other information
the Ombudsman deems necessary.
§1106(a)
The act would require the
Ombudsman to report no later
than June 30 of each year to
Congress on the objectives of the
office for the upcoming fiscal
year. The act would require the
report to be submitted to
Congress without prior review or
comment from other officials.
The act would require the report
to have analysis, statistical
information, and the following:
(1) identification of initiatives
the office has taken with regard
to improving services and the
responsiveness of the bureau; (2)
summary of the “most pervasive
and serious pro blems”
experienced by individuals and
employers; (3) inventory of the
aforementioned items for which
action has been taken; (4)
inventory of the aforementioned
items for which action is still
needed; (5) inventory of the
aforementioned items for which
no action has been taken; (6)
recommendations for
administrative and legislative
action, if necessary, to resolve
problems experienced by
individuals and employers; and
(7) any other information the
Ombudsman deems necessary.
§422(c)
CRS-63
Subject
Report on Division and Transfer of
Funds, Division of Personnel and
Implementation Plan
Current law /
current administrative structure
No provision.
S.Amdt. 4471, as filed on
September 3, 2002
H.R. 5005, as passed by the
House on July 26, 2002
The act would require the Secretary to
report to Congress, no later than 90
days after the effective date of this
Division, the availability of funds to
cover the transition cost. §1120
The act would require the
Attorney General and the
Secretary of DHS, no later than
120 days after enactment, to
submit the following: (1) a
report on the proposed division
and transfer of funds between
the Bureaus, (2) a report on the
division of personnel between
the Bureaus and (3) an
implementation plan.
The act would require the
implementation plan to contain
information pertaining to the
separation of the Bureau of
Citizenship and Immigration
Services and the Bureau of
Border Security as well as the
following: (1) organizational
structure; (2) chain of command;
(3) procedures for interaction
among the bureaus; (4) fraud
detection and investigation; (5)
the processing and handling of
removal proceedings and
applications for relief from
removal; (6) recommendations
for conforming amendments to
the INA; (7) the establishment of
a transition team; and (8)
methods to phase in the costs of
sep ar ating administrative
support systems of both bureaus.
The act would require the
reports and plan to be submitted
to Congress no later than 120
days after the enactment of this
act. Requires the
CRS-64
Subject
Current law /
current administrative structure
S.Amdt. 4471, as filed on
September 3, 2002
H.R. 5005, as passed by the
House on July 26, 2002
Report on On-line Filing for Benefit
Applications
None.
The act would require the Under
Secretary to report to Congress on the
feasibility of on-line filing for benefit
applications. §1122
No provision.
Report on Enforcement Functions
None.
No provision.
T h e a c t wo u l d r e q u i r e t h e
Secretary (after consulting with
other federal, state and local
officials) to submit to Congress,
no later than 1 year after the
secretary is sworn in, a report
with regard to how the
enforcement bureau will
effectively enforce the
enforcement provisions of the
INA. §415
CRS-65
Subject
Report on Adjudications Implementation
Plan
Current law /
current administrative structure
None.
S.Amdt. 4471, as filed on
September 3, 2002
No provision.
H.R. 5005, as passed by the
House on July 26, 2002
The act would require the
Atto rney General (after
consulting with the Secretary of
State, Secretary of Labor, and
the Assistant Secretary of the
Bureau of Border Security of
DHS, and the directors of both
Bureaus, and the Director of
EOIR) to submit a report to
Congress with regard to a plan
for implementing a system for
more timely and efficient
processing of adjudications no
later than 1 year from enactment
of this act. §433(a)(c)
The act would require the plan to
contain the following for each
type of adjudication:
(1)
potential savings of
resources, (2) goal for
processing time of applications,
and (3) statutory modifications
with regard to adjudications, if
considered advisable by the
Attorney General. §433(b)
CRS-66
Subject
Report to Congress on Status of
Transition
Current law /
current administrative structure
No provision.
S.Amdt. 4471, as filed on
September 3, 2002
No provision.
H.R. 5005, as passed by the
House on July 26, 2002
The act would require the
Comptroller General to submit a
report to Congress with regard to
the status of the transition and
any issues that have arisen
pertaining to the transfer, no
later than 18 months after the
date on which the functions are
transferred, and every 6 months
thereafter until full
implementation has been
completed.
The act would require a report,
no later than 4 years after the
transfer, on the determinations
pertaining to the improvement of
immigration functions as a result
of the transfer, including
o p er atio ns, mana gement,
financial administration, and
record keeping, as well as
recommendations for further
improvements in both bureaus.
The act would require the
Comptroller General to submit a
report to Congress no later than
1 year after the date of
enactment of this act with regard
to whether the Bureau of
Citizenship and Immigration
Services is likely to derive
adequate funds, in the absence of
appropriated funds, from its feebased programs. §245(d)
CRS-67
Subject
Current law /
current administrative structure
S.Amdt. 4471, as filed on
September 3, 2002
H.R. 5005, as passed by the
House on July 26, 2002
Report on Appropriations Needed for
Services
No provision.
No provision.
The act would require the
Attorney General to submit a
report to Congress no later than
30 days after the enactment of
this act with respect to changes
in the law and authorizations of
appropriations that are needed in
order for INS and thereafter the
Bureau of Citizenship and
Immigration Services to respond
to applications for immigration
benefits and to otherwise
accommodate changing
immigration service needs.
§434
Report on Foreign Nationals
No provision.
No provision.
The act would require a study
and report to Congress on the
role of foreign nationals in the
process of rendering decisions in
the visa issuance process,
specifically addressing national
security concerns and costeffective alternatives. §403(e)
Report on Affect on Student Visas
No provision.
No provision.
T h e a c t wo u l d r e q u i r e t h e
Director of the Office of Science
and Technology Policy to submit
a report to Congress within 120
days on the affect of §403 on the
issuances of visas to students.
§403(f)
CRS-68
Subject
Report on Impact of Transfer
Current law /
current administrative structure
None.
S.Amdt. 4471, as filed on
September 3, 2002
No provision.
H.R. 5005, as passed by the
House on July 26, 2002
T h e a c t wo u l d r e q u i r e t h e
Attorney General to submit a
report to Congress, 1 year after
enactment, with regard to the
impact the transfers have had on
immigration functions. Would
require the report to include: (1)
number of all immigration
applications and petitions
received and processed; (2)
statistics by region on number of
immigration applications and
petitions filed and denied; (3)
q u a n t i t y o f b acklo gged
applications and petitions that
have been processed, the number
awaiting processing and a plan
detailing the elimination of the
backlog; (4) average processing
p e r i o d f o r i mmigr at i o n
applications and petitions; (5)
number and types o f
immigration-related grievances
filed; (6) plans to address
grievances; (7) whether fees
were used consistently with the
legal requirements; and (8)
whether immigration-related
questions were answered
effectively and efficiently.
§446(a)
CRS-69
Miscellaneous Provisions
Subject
Current law /
current administrative structure
S.Amdt. 4471, as filed on
September 3, 2002
H.R. 5005, as passed by
the House on July 26, 2002
Provisions of Laws Repealed
None.
The act would repeal the following: (1)
Section 7 of the Act of March 3, 1981
pertaining to the establishment of the
Office of the Commissioner of
Immigration and Naturalization; (2)
Section 201 of the Act of June 20, 1956
pertaining to the compensation of assistant
commissioners and district directors; and
(3) Section 1 of the Act of March 2, 1895
pertaining to special immigrant inspectors.
§1103(d)
[The act would abolish INS.
§441]
Savings Provisions
None.
The act would require that all legal
determinations made prior to the
enactment of this act continue. §1116(a)
Similar provision. §812(a)(b)
The act would require that any proceedings
underway prior to the enactment of this act
continue. §1116(b)
Statutory Construction
None.
The act would prohibit the contents of this
act to be construed to authorize or require
the transfer of EOIR from DOJ. §1118
No provision.
None.
The act would prohibit the contents of this
act to be construed to limit the authority of
the Secretary of State and the Secretary of
Labor with respect to labor certifications.
§1119
No provision.
The INA required that the deadline for
eliminating the adjudication backlog be
completed 1 year from the date of
enactment of the Immigration Services and
Infrastructure Improvements Act of 2000
(enacted on October 17, 2000; 114 Stat.
1251). §202(a) of the INA
The act would amend the Immigration
Services and Infrastructure Improvements
Act of 2000 by extending the deadline for
eliminating the adjudication backlog to 1
year from the date of enactment of this act.
§1121
Similar provision. §432
Executive Office for Immigration
Review (EOIR)
Statutory Construction
Secretary of State
Secretary of Labor
Backlog
CRS-70
Subject
Internet-based Technology
Current law /
current administrative structure
None.
S.Amdt. 4471, as filed on
September 3, 2002
H.R. 5005, as passed by
the House on July 26, 2002
The act would require the Secretary, in
consultation with the Under Secretary and
Technology Advisory Committee, to
establish an Internet-based system to check
status of benefit applications, no later than
2 years after the enactment of this act.
§1122
Similar provision, except the
act would give the Attorney
General 1 year to establish
the system.
The act would require the Under Secretary
to conduct a study to determine the
feasibility of on-line filing, and submit a
report to Congress with the findings of the
study. §1122
The act would require the Under Secretary
to establish an advisory committee to assist
with establishing the internet-based
tracking system. §1122
Asylum Seekers
The INA places aliens who arrive in the
U.S. without proper documents in
expedited removal proceedings. If such an
alien requests asylum, the case is referred
to an asylum officer for a “credible fear”
determination. The INA requires the
mandatory detention of the alien pending a
final determination of credible fear of
persecution or until removed if the
determination did not find such a fear.
§235(b)
The act would assign asylum officers to
major ports of entry to assist in the
inspection of asylum seekers.
The act would also amend INA to require
the Under Secretary to develop alternatives
to the mandatory detention of asylum
applicants and specifies that the
alternatives considered should include:
parole; parole with assistance from
nonprofit voluntary agencies; non-secure
shelters and group homes operated by
nonprofit voluntary agencies; and
noninstitutional settings for minors
operated by nonprofit voluntary agencies.
§1123
No provision.
CRS-71
Subject
Current law /
current administrative structure
S.Amdt. 4471, as filed on
September 3, 2002
H.R. 5005, as passed by
the House on July 26, 2002
Employee Voluntary Separation
Incentive Payments
None.
No provision.
The act would provide
voluntary separation
incentive payments, up to
$25,000, for certain
employees. §442
Employee Discipline Demonstration
Project
None.
No provision.
The act would permit the
Attorney General and the
Secretary, during a period
ending not later than 5 years
after the act’s enactment date,
to conduct a demonstration
project to determine whether
one or more changes in the
policies or procedures
relating to methods for
disciplining employees would
result in improved personnel
management. §443
The act would require GAO
to prepare and submit to
Congress periodic reports on
any demonstration project.
§443
The act would require the
reports to be submitted after
the second and fourth years
of the project’s operation.
§443
Sense of Congress Regarding Border
Fence
None.
No provision.
The act would state that it is
the sense of Congress that the
14-mile border fence project
required by 8 U.S.C. 1103
should be a priority for the
Secretary. §416
CRS-72
Subject
Current law /
current administrative structure
S.Amdt. 4471, as filed on
September 3, 2002
H.R. 5005, as passed by
the House on July 26, 2002
Sense of Congress Regarding Bureau
Missions
None.
No provision.
The act would provide the
following sense of Congress:
(1) the missions of the
Bureau of Immigration
Enforcement of DHS and the
Bureau of Citizenship and
Immigration Services of DOJ
are equally important and
should be adequately funded;
and (2) the border security
and the citizenship and
i mmigr a t i o n s e r vi c e s
functions transferred under
this subtitle should not
operate at levels below those
in effect prior to enactment.
§444
Sense of Congress Regarding Quality and
Efficiency of Services
None.
No provision.
The act would provide that it
is the sense of Congress that
the quality and efficiency of
immigration services should
be improved after the
transfers take effect and that
the Attorney General should
undertake efforts to guarantee
that concerns pertaining to
immigration services are
addressed. §446(b)
a. Text appearing in italics are either INS or DOS internal regulations, or the Administration’s November 14, 2001 INS Restructuring Plan, and not current
law.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.