THE IMMIGRATION AND NATURALIZATION SERVICE

A REVIEW PRESENTATION OF AN AGENCY (Administrative Law)
BY
Sreenivasarao Vepachedu, Ph. D., LL. B.

Howard University Law School, April 1996
Note: President George W. Bush brought 22 previously disparate domestic agencies under one  department, the Department of Homeland Security (DHS), to protect the nation against threats to the homeland. The creation of DHS is the most significant transformation of the U.S. government in the aftermath of the terrorist attacks against America on September 11th, 2001.   As a result, the Bureau of Citizenship and Immigration Services, a branch of DHS, replaced INS. Following President Bush's recent announcement, Eduardo Aguirre became Acting Director of the new Bureau of Citizenship and Immigration Services. DHS announced BCIS interim (field) management directors. On April 7, 2003, Michael Petrucelli became BCIS Deputy Director and Chief of Staff.  DHS marked its first 100 days on April 29, 2003.

 CONTENTS

1.  Introduction
2.  Origin
3.  The Commissioner
4.  The Structure and Organization
5.  The Mission
6.  The Powers
7.  Challenges Ahead
8.  Recent Proposals
9.  Key Provisions of the Recent Immigration Bill (1996)
10.  Interviews
11.  Matter of Dass


 IMMIGRATION AND NATURALIZATION SERVICE

Introduction:
Immigration is emerging as a pivotal issue-like race, taxes and crime-that defines political conflict over the basic values of our society.  It is an issue that evokes cultural and economic anxieties; concerns about the preservation of natural and public resources even the fears of personal safety.  After years of comparative obscurity, pressures are mounting again for immigration policy reform.  As public debate intensifies, it is characterized increasingly by disagreement over facts as well as policy.  Finding a scapegoat for all the evils that happen at a particular time is natural.  In these times of economical difficulties and elections, politicians seem to direct the layman to think that immigration is the reason for all the evils and try to take tough stand against the scapegoat (which they have identified as), immigration.  Fortunately, the recent proposals to curb illegal immigration and legal immigration together were separated and they are dealt with separately now.  

This country is a nation of immigrants.  Rep. Sam Brownback (R-Kan) recently said, “We are a nation of immigrants, Congress should preserve that proud tradition, not threaten it.”  In the recent history of the United States of America, the only institution that determines the color and culture of the country, in my opinion, has been the Immigration and Naturalization Service.

Origin
The Immigration and Naturalization Service (INS) was created by act of March 3, 1891 (8 U.S.C. 1551 note), and its purpose and responsibilities were further specified by the Immigration and Nationality Act (INA)(McCarren-Walter Act), passed by Congress in 1952 and amended several times since then. The Attorney General is charged with the Administration and enforcement of its provisions.  

In 1990, Congress passed a far reaching immigration reform bill.  The Immigration Act of 1990 contained the most significant changes to immigration since per-country quotas were made permanent in 1929.

The Commissioner:  
INS is headed by a commissioner, who reports to the Attorney General. The present (1996) Commissioner is Ms. Doris M. Meissner. The Attorney General has delegated authority to the Commissioner of the Immigration and Naturalization Service to carry out a national immigration policy that will administer and enforce the immigration laws and promote the public health and safety, economic welfare, national security, and humanitarian interests of this country.  The Commissioner is responsible for carrying out policy which provides for selective immigration and controlled entry and stay of non-immigrant aliens.  Specifically, the policy encompasses the reunification of families, the entry of immigrants who possess needed skills, the temporary admission of specific classes of aliens, and a refuge for those aliens who can demonstrate a well-founded fear of persecution in a country from which they have fled.  

The structure & Organization:
The structure of INS is divided into operational and management functions.  Operations include both Enforcement and Examinations programs; management covers information resources, finance, human resources, and administration, and equal employment opportunity.  

To fulfill its multi faceted mission, the INS is organized along regional lines. The Headquarters office is located in Washington, DC, and the three regional offices are in Burlington, VT (Eastern); Dallas, TA (Central); and Laguna Nigel, CA (western).

Overall, policy and executive direction flows from the Washington, DC, headquarters to 33 districts and 21 border patrol sectors throughout the United States. INS also maintains three district offices in Bangkok, Thailand; Mexico City, Mexico; and Rome, Italy.

The responsibilities are carried out by individual district offices and border patrol sectors, headed by District Directors and Chief Patrol Officers.  Four management centers provide administrative support; four service centers process petitions and applications for benefits; two forms centers fill most requests for forms; and two telephone centers handle live assistance calls.


The Mission:
Unique to the Service is the dual mission of providing information and service to the general public, while concurrently exercising its enforcement responsibilities.

Its mission is divided into four major areas of responsibility:
The Immigration Act of 1990 (8 U.S.C. 1101 note) represents a major overhaul of immigration law, amending the Immigration and Nationality Act. Changes include revisions to the numerical limits and preference system regulating immigration, administrative naturalization empowering the Attorney General to issue final determinations on applications for US citizenship, and issuing certificates of naturalization.
The Service also has a firm commitment to strengthen criminal investigations and seek the most effective deterrents to illegal immigration.

The Powers:
The functions of the operational staff are: anti-smuggling, border patrol, detention, and deportation, inspections, asset forfeiture, public information, intelligence, and investigations.  The managerial staff sections are involved in support activities, such as: automation, budget and accounting, communications, congressional and public affairs, facilities and engineering, personnel, planning, procurement, property management, records management, and statistical analysis.

I think it is pertinent to mention one, if not all, of the sweeping powers of the agency: The arrest of an alien under an administrative warrant.  §242(a) of the Immigration and Nationality Act of 1952. 8 U.S.C.A.§1252(a), provide the INS with this power under the scope of Fourth Amendment.  The regulations under this Act delegate the authority to issue these administrative warrants to the District Directors of the INS “at the commencement of any proceeding to deport… or any time thereafter…whenever, in their discretion, it appears that the arrest of the respondent is necessary or desirable.” 8 CFR §242.2(a).  Statutes providing for deportation have ordinarily authorized the arrest of deportable aliens by order of an executive official.  There is an overwhelming legislative recognition of the propriety of administrative arrest for deportable aliens.  There is an impressive historical evidence for the administrative deportation arrest from almost the beginning of the Nation.
The INS possesses power not only to make decisions that drastically affect the persons of those subject to its jurisdiction but also has the power directly to execute its own decisions.  An exclusion decision is executed by a physical bar to entry by  the relevant immigration officials.  After a deportation order is issued, the alien given an opportunity to leave the country voluntarily.  If he refuses to do so, the INS has the authority to execute the order by physically ejecting the alien, i. e., by placing him on a plane or ship to the country to which he is deported.  This power to arrest was upheld by courts consistently, e.g., Abel v. US, Kaoru Yamataya v. Fisher, Zakonaite v. Wolf, Bilokumsky v. Todd, Carlson v. Landon and so on.

Challenges Ahead:
The Commission believes that legal immigration has strengthened and continue to strengthen our country and the Commission members are of the opinion that the immigration presents many opportunities for this nation. Immigrant can contribute to the building of the country. In most cases they have been actively ought by family members or businesses in the US. The tradition of welcoming newcomers has become an important element of how we define ourselves as a nation.

The Commission is also mindful of the problems that also emanate from immigration. In particular, the Commission believes that unlawful immigration is unacceptable.  Enforcement efforts have not been effective in deterring unlawful immigration.  This failure to develop effective strategies to control unlawful immigration has blurred the public perception of the distinction between legal and illegal immigrants.

For the Commission, the principal issue at present is how to manage immigration so that it will continue to be the national interest.
The credibility of immigration policy can be judged by a simple yardstick: people who should get in, do get in; people who should not get in are kept out; and people who are judged deportable are required to leave.

During the decade from 1980 to 1990, three major important pieces of legislation were adopted to govern the immigration policy- the Refugee Act of 1980, the Immigration Reform Act of 1986, and the Immigration Act of 1990.  The Commission supports the broad framework for immigration that these laws represent: a legal immigration system that strives to serve the national interest in helping the families reunite and employers to obtain the skills not available in the US labor force; a refugee system that reflects both our humanitarian beliefs and international refugee law; and an enforcement system that seeks to deter unlawful immigration through employer sanctions and tighter border control.

The commission has concluded, however, that this framework is insufficient in guaranteeing that the stated policy goals will be met.  While the majority of immigrants arrive here through legal means, a sizable minority of the net additions to the US population comes here illegally or overstays the legal period.

The commission heard more about illegal immigration than any other issue during its investigations.  The message was clear that the federal government had failed to deter illegal immigration.

As a public policy issue, the illegal immigration presents major problems and concerns to the society.

1.  Although illegal aliens, like citizens and lawful residents, generally abide by the law once here, unlawful entry or remaining beyond a permitted period of stay are, nevertheless, violations of the rules established by the US to determine whose entry is in the national interest.
2.  Illegal aliens sometimes require services and financial  assistance and take jobs at the expense of citizens and lawful immigrants.
3.  Illegal immigration encourages crime. Illegal immigrants often become an exploitable underclass and are reluctant to report crimes; unscrupulous employers violate labor standards and undercut competition from those businesses that play by the rules; organized rings of smugglers and counterfeiters profit from the desperate desire of people to enter or remain in the United States at all costs.
4.  Increasing frustration over the nation’s inability to control illegal immigration undermines our first commitment to legal immigration. A recent example of the manifestation of this frustration is the bills proposed in the senate by Smith and Simpson.  Fortunately, the businesses and eminent figures like Bill Gates stood behind legal immigration, and senator Abraham’s proposal to split the bill came as a blessing for both legal immigration as well as for businesses.  The President also saw to the reasoning of the pro immigration argument and supported the bill.

The Commission is convinced that unlawful immigration can be controlled consistent with our traditions, civil rights, and civil liberties.  As a nation with a history, which is nothing but the history of immigrants, and commitment to the rule of law, this country must set limits on who can enter and then must credibly enforce our immigration policy.

A credible policy requires the following:
Recent Proposals:
Recently the House approved a major immigration bill sponsored by Sen. Alan K. Simpson, after stripping it of provisions aimed at reducing the influx of legal immigrants by an amendment sponsored by Sen. Spencer Abraham (R-Mich).  The final vote came after the Clinton administration threw its support behind a move to limit the legislation essentially to a crack down on illegal immigration.  The bill beefs up the Border patrol, streamlines deportation procedures, and toughens penalties for illegal aliens to receive education and welfare benefits.  In this connection, Rep. Howard L. Berman (D-CA), a sponsor of the amendment to Smith’s bill, said, “It is fundamentally wrong to take the justifiable anger about our failure to deal with the issue of illegal immigration and piggyback on top of that anger to a drastic…cut in permanent legal immigration, a cause and force that has been good for this country.”  Rep. Sam Brownback (R-Kan) said, “We are a nation of immigrants, Congress should preserve that proud tradition, not threaten it.”

Key Provisions of the Recent Immigration Bill (1996):

A separate bill to restrict and streamline the legal immigration is under consideration in the house now.

Interviews:
I tried to reach Baltimore INS, by calling a number with (410) area code after a long wait of two hours, I requested for an interview with an INS official at Baltimore office.  To my surprise I found out that I was not talking to Baltimore office, but reached California office.  The telephone operator told me that there was a national net work and I could be picked up by any operator any where in the US.  It is very difficult to get in touch with an immigration official who would be willing to discuss with us about the INS or the proposed bills.

I recently visited the Baltimore INS office.  It took me two hours to get to the counter where I could explain why I was there and get a number and wait again for another two hours.  I had two goals to achieve when I visited the INS: first, to clarify about my permanent residency card, and second, to interview and discuss about the INS for this article.

I would like to explain first a little bit about the "episode of my green card" to give you an idea about how INS works. My green card application from Baltimore office was sent to Texas center, where all the green cards are prepared for the whole country, in October last year (1995).  I was told that it might take 120 days.  Recently (after 120 days), I sent an application, Form G-731, for "Inquiry About Status of I-551, the Alien Registration Card (the Green Card)," and received a letter saying that a part of application for I-551, the finger print form had been sent back to Baltimore INS for Corrective Action in December last year (1995).  I went to Bltimore INS office and after all the wait there as explained above, I finally had my turn to speak with an INS official.  First, she looked at the form from Texas and went inside, came out after half an hour, and told me that she took care of the mistake and that I could go.  I asked if she could explain what went wrong.  She said, "I don't want to cut you down, but you wouldn’t understand it."  Then I explained that I was a law student and that I wanted to ask a few questions, but she had no time to answer.  And she already buzzed for the next person in line and dismissed me.  I am not sure how long it will take for them to send the corrected finger print form to Texas and finally to get the Green Card from Texas.  The lesson from this episode, I guess, was that I should deal with INS through forms and applications, and via mail as much as possible.  I had to wait on the phone for two hours to get an answer of three words "apply form G-731", when I called them for the same purpose a few months ago.

Later I talked to a few Immigration Lawyers.  Mr. Charles Mosher, a young and intelligent lawyer, explained me a little bit about how INS works.  In normal cases, dealing with INS is not difficult. If one follows correct procedures and files correct forms with required information the chance of the request being granted are very high.  Even if they deny there is always a choice for appeal.  As in any administrative decision one can appeal to judicial court of pertinent jurisdiction after all the administrative remedies available are exhausted.  But in cases like request for J-1 exchange visitor visa the decision of the granting official is at the officials discretion and is final.  One reason for denial is the presence of any intent of immigration!

In political asylum cases, it is required  to show evidence of persecution. Mr. Samuel Jay Levine, an eminent immigration lawyer in DC area, says that the INS requires you to produce evidence of persecution and evidence of imprisonment.  And he questions, “How a person, who is running away from persecution, can document his persecution and imprisonment?” 

In the Matter of Mogharrabi, the BIA decided that in some cases the only evidence available might be the persecuted person’s oral account.  Lack of material evidence of persecution may not be a reason for denial of asylum.  In the Matter of Dass, the BIA held that the general rule is that such evidence should be presented where available.
Matter of Dass:
The rule in this case is that “to establish eligibility for asylum, an alien must meet the definition of a refugee, which requires him to show persecution or well founded fear of persecution on account of race, religion, nationality, membership in a particular social group or political opinion. The asylum applicant bears the evidentiary burden of proof and persuasion, where there are significant, meaningful evidentiary gaps, applications will ordinarily have to be denied for failure of proof.  Lack of such evidence will not necessarily be fatal to an application.  An alien’s own testimony may, in many cases, be the only evidence available, and it can suffice where the testimony is believable, consistent and sufficiently detailed to provide a plausible and coherent account of the basis for his alleged fear.  But the general rule is that such evidence should be presented where available.” (Matter of Dass, BIA decision).    

Back to Vepachedu Educational Foundation