A Comparative Analysis of the Immigration Functions in the Major Homeland Security Bills

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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.

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A Comparative Analysis of the Immigration Functions in the Major Homeland Security Bills · RL31584 | Frix