THE IMMIGRATION AND NATURALIZATION SERVICE
A REVIEW PRESENTATION OF AN AGENCY (Administrative Law)
Sreenivasarao Vepachedu, Ph. D., LL. B.
Howard University Law School, April 1996
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
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.
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
11. Matter of Dass
IMMIGRATION AND NATURALIZATION SERVICE
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
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
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.
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.
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.
- Facilitating the entry of persons legally admissible as visitors or
as immigrants to the United States;
- Granting benefits under the Immigration and Nationality Act, as amended,
including providing assistance to those seeking permanent resident status
- Preventing unlawful entry, employment, or receipt of benefits by those
who are not entitled to them.; and
- Enforce sanctions against those who act or conspire to subvert the
requirement for entry and stay in the US, i.e., apprehending or removing
those aliens who enter or remain illegally in the United States and/or whose
stay is not in the public interest.
The Service also has a firm commitment to strengthen criminal investigations
and seek the most effective deterrents to illegal immigration.
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
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
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
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
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.
- How do we ensure that immigration is based on and supports broad national
economic, social, and humanitarian interests rather than the interests of
those who would abuse the laws?
- How do we gain effective control over our borders while still encouraging
international trade, investment, and tourism?
- How do we maintain a civic culture based on shared values while accommodating
the diverse population admitted through immigration policy?
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
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:
- A clear articulation of goals and objectives,
- A realistic and achievable strategy to meet those goals, and
- Effective, consistent implementation and enforcement of policies to
meet the goals.
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
- Leaves legal immigration as is under current law. Current annual
level of about 775,000 includes 480,000 family sponsored immigrants, 140,000
employer-sponsored immigrants, 55.000 diversity-lottery admissions and 100,000
refugees. Reinforces the Border Patrol with 1,000 new agents a year for
five years to crack down on illegal immigration across the US-Mexican border.
- Mandates construction of 14 miles of new triple fencing on the border
south of San Diego.
- Expands wiretap authority and strengthens criminal penalties to combat
alien smuggling and document fraud.
- Streamlines deportation proceedings and creates new grounds of inadmissibility,
with new penalties for remaining in the US illegally.
- Allows the deportation of accused terrorists on the basis of secret
evidence and makes membership in a terrorist organization grounds for barring
entry into the United States.
- Allows the summary exclusion of illegal aliens seeking political asylum
if they fail to pass an interview at the port of entry , and gives those already
in the country 180 days from their date of entry to apply for asylum.
- Establishes a voluntary three-year pilot program in five states under
which employers could verify the employment eligibility of job-seekers by
calling in their Social Security numbers to a government database.
- Gives states the option of denying free public education to illegal
- Blocks illegal immigrant parents from receiving federal welfare benefits
on behalf of their US born children.
A separate bill to restrict and streamline the legal immigration is under
consideration in the house now.
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
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).