2004 © David Weissbrodt and Laura Danielson
ADMINISTRATIVE STRUCTURE OF IMMIGRATION LAW
There are five major departments of the executive branch of the federal government involved in the immigration process: the Department of Homeland Security, the Department of State, the Department of Justice, the Department of Labor, and the Department of Health and Human Services. Congress has a role in the immigration process discussed in chapter 4.
In November 2002, Congress passed the Homeland Security Act (116 Stat. 2135), which abolished the Immigration and Naturalization Service and transferred most immigration functions to the Department of Homeland Security. This chapter describes immigration administration after the Homeland Security Act (HSA).
§ 3-1 THE DEPARTMENT OF HOMELAND SECURITY
Under the Homeland Security Act, most of the immigration functions originally delegated to the Attorney General by the Immigration and Nationality Act (see INA § 103(a)) were transferred to the Secretary of Homeland Security. The functions of enforcing immigration law and administering immigration and citizenship benefits are now handled by three subdivisions of the Department of Homeland Security: the U.S. Citizenship and Immigration Services, the U.S. Immigration and Customs Enforcement, and the U.S. Customs and Border Protection.
§ 3-1.1 The U.S. Citizenship and Immigration Services
The U.S. Citizenship and Immigration Services (CIS) reviews petitions for immigration, adjustment of status, and naturalization, as well as asylum and refugee applications. The Director of the CIS reports directly to the Deputy Secretary for Homeland Security.
The CIS has maintained the structure of the Immigration and Naturalization Service, operating three regional offices, thirty-three domestic district offices, and three overseas district offices. The regional offices in Burlington, Vermont; Laguna Nigel, California; and Dallas, Texas provide administrative coordination for the 33 domestic district offices. Each district office has a district director and several assistant directors. In addition, the CIS operates five Regional Service Centers. The four service centers located in California, Nebraska, Texas, and Vermont handle most visa and asylum adjudications. The fifth and newest National Benefits Center, located in Missouri, handles Legal Immigration and Family Equity (LIFE) Act claims from all states.
Immigration officers have broad discretion in deciding whether an application is complete, accurate, credible, and in compliance with statutory and regulatory requirements. The district director has the authority to initiate investigations, removals, notices to appear, and arrest warrants, as well as to set bail in connection with removal hearings. A division called the Administrative Appeals Office, located in Washington, D.C., handles administrative appeals from certain decisions of lower adjudicatory officers.
§ 3-1.2 The U.S. Immigration and Customs Enforcement
The U.S. Immigration and Customs Enforcement (ICE) is responsible for enforcement of immigration laws. It is divided in offices for immigration investigations, detention and removal, Air and Marine Operations, Federal Air Marshal Service, Federal Protective Service, and intelligence. The immigration investigations program seeks to identify and remove non-citizens who are in the United States in violation of the law. The detention and removal program supervises the detention and removal of non-citizens who have received a final removal order. The intelligence program provides information to aid in policy-making and day-to-day immigration operations.
ICE is a subdivision of the Directorate of Border and Transportation Security, one of the four directorates within the Department of Homeland Security. The Directorate of Border and Transportation Security also includes the U.S. Customs and Border Protection, the Transportation Security Administration, the Federal Protective Service, the Federal Law Enforcement Training Center, and the Office for Domestic Preparedness.
In 1996, IIRIRA gave the Attorney General (now the Secretary for Homeland
Security) the authority to enter into agreements with states and subdivisions
of states to implement the administration and enforcement of federal immigration
laws. INA § 103(a). With the appropriate agreements, for example, states can
receive federal funds to construct and rehabilitate space for detention and
confinement. Id. The Secretary may also enter into agreements with law enforcement
agencies at the state and local levels to enforce immigration laws. Id.
§ 3-1.3 The U.S. Customs and Border Protection
While ICE is primarily concerned with enforcement of immigration laws within the United States, the U.S. Customs and Border Protection (CBP) focuses on preventing illegal entries into the United States. CBP performs customs and agricultural inspections, as well as immigration inspections. CBP’s immigration inspectors work at ports of entry, including border crossings and airports, to prevent the unauthorized entry of non-citizens (see Chapter 6, infra). The Border Patrol is responsible for patrolling the United States’ borders with Mexico and Canada and coastal waters around Florida, in order to prevent illegal entries and intercept undocumented immigrants. Like ICE, CBP is a subdivision of the Directorate of Border and Transportation Security.
§ 3-1.4 Asylum Adjudication
In 1990, the INS issued regulations creating a new system for processing asylum applications and authorizing the installation of a documentation center to collect and disseminate information on worldwide human rights conditions. Under this system, which now falls within CIS, a corps of asylum officers reports directly to the Central Office for Refugees, Asylum, and Parole (CORAP) in Washington, D.C., rather than to district offices. The asylum officers are trained in international relations and international law, and receive briefings about human rights from the documentation center. 8 C.F.R. § 208.1(b).
Asylum officers adjudicate affirmative applications for asylum, i.e. applications filed by non-citizens who are not yet subject to removal proceedings. (Affirmative applications should be distinguished from defensive applications, which are filed with the immigration judge by non-citizens in removal proceedings). Non-citizens seeking asylum submit an application to a Regional Service Center, which then forwards the application to the appropriate asylum office. After a nonadversarial interview and an examination of supporting documents, the asylum officer determines whether the applicant has established a valid claim for asylum. The asylum officer may grant asylum, or, if the applicant appears to be removable, refer the application to an immigration judge for adjudication in removal proceedings. 8 C.F.R. § 208.14(b)(2). See chapter 10, infra, for a more complete discussion of asylum procedures.
§ 3-2 THE DEPARTMENT OF STATE
For most non-citizens the immigration process begins abroad in the over 200 U.S. consulates and embassies that are a part of the Department of State. To obtain the visa necessary to travel to this country, non-citizens must file an application at the U.S. consulate in their countries of last residence. A common example is the B-2 tourist visa, which is usually obtained abroad. In contrast, for example, a person who wishes to enter the U.S. as an immediate relative or fiancé(e) of a U.S. citizen, or under almost all employment sponsored temporary visa statuses, must first have a petition filed by the sponsoring relative or employer for such classification with the U.S. Citizenship and Immigration Services in the United States. A U.S. citizen or permanent resident residing abroad may also file family petitions at immigration offices abroad. If the CIS grants the petition, it notifies the U.S. embassy or consulate in the non-citizen’s country of last residence, and the visa is sought by the non-citizen following a separate application process.
Consular officers screen visa applications and grant or deny visas according to standards established by the Secretary for Homeland Security. Consular officers’ decisions are subject to very limited review. Neither the Secretary of State nor the Secretary for Homeland Security may overturn a consular officer’s decision to deny a visa. HSA § 428(b). The Secretary of State may, however, order a consular officer to refuse a visa if such a refusal is warranted by U.S. foreign policy or security interests. HSA § 428(c).
The Department of State conducts a highly discretionary informal review system in which each visa refusal is reviewed by the principal consular officer, or a specifically designated alternate. 22 C.F.R. § 41.121(c). If the consular officer does not agree with the refusal, that officer must refer the case to the Department of State or assume responsibility by reversing the refusal. Id. The Visa Office of the Department of State may request a report and issue an advisory opinion. 22 C.F.R. § 22.121(d). Although technically only binding as to legal questions, the Visa Office advisory opinion is usually followed. As another means of review, the Homeland Security Act authorizes the Secretary for Homeland Security to place Department of Homeland Security employees in embassies and consulates, to provide advice and training to consular officers, to participate in terrorist lookout committees, or to review visa applications. HSA § 428(e).
Consular decisions denying visas to non-citizens not yet present in the United States are generally held to be neither administratively nor judicially reviewable. See, e.g., Li Hing of Hong Kong, Inc. v. Levin (9th Cir.1986); Ventura-Escamilla v. INS (9th Cir.1981). Several courts, however, have asserted a narrow ground of review in visa denial cases. See Abourezk v. Reagan (D.C.Cir.1986) (plaintiffs were entitled under the Administrative Procedure Act to judicial review of agency action denying a visa, due to the absence of “clear and convincing evidence” of congressional intent to the contrary) and Allende v. Shultz (D.Mass.1985) (U.S. citizens claiming that the denial of a visa for the Chilean speaker violated their First Amendment rights of free speech and association were entitled to judicial review because “[t]he exercise of judicial review, though necessarily limited in scope, is particularly appropriate in cases ... which involve fundamental rights of U.S. citizens”).
Even receipt of a visa, however, does not ensure admission to the United States. The immigration officer at the U.S. border or port of entry (referred to as an “inspector”) may disagree with the consular officer and refuse admission. If the non-citizen indicates an intent to apply for asylum, the inspector must hold the individual for a credible fear determination (see chapter 10, infra). Otherwise, the inspector will either give the non-citizen an opportunity to withdraw the application for admission, or, if the non-citizen has given false information, subject the non-citizen to “expedited removal.” To avoid making these determinations at the port of entry, border security officials often examine non-citizens either in their country of departure or on the high seas, in “preinspection” or “interdiction” programs.
The Department of State’s role extends beyond issuing visas. The Department of State supervises embassy adjudications of citizenship questions when a person outside the U.S. claims to be a U.S. citizen. It issues advisory opinions on refugee and asylum petitions, and supervises consular actions in other matters that might affect the relationship of the U.S. government with other countries. The Department of State also provides consular services for U.S. citizens abroad, such as for persons with lost passports or a need for other documents, as well as for U.S. citizens arrested in foreign countries.
The Department of State is also responsible for cultural and educational exchange programs, sending U.S. citizens to other countries, and encouraging thousands of foreign nationals to visit the U.S. The Fulbright program is one example of an exchange arrangement overseen by the Department of State. The Department of State promulgates all of the regulations concerning exchange visitor programs, including employment related provisions. See § 7-10, infra for more information on exchange programs.
§ 3-3 THE DEPARTMENT OF JUSTICE
Until 2003, the Department of Justice was responsible for most immigration functions. The Immigration and Naturalization Service (INS), an agency of the Department of Justice, handled immigration and citizenship services and enforced immigration laws. These functions have now been transferred to the Department of Homeland Security. The Department of Justice has, however, retained authority over the Executive Office for Immigration Review.
The Executive Office for Immigration Review (EOIR) is comprised of the immigration courts and the Board of Immigration Appeals. The EOIR is an administrative body, not a court under Article 1 or 3 of the Constitution.
§ 3-3.1 The Immigration Courts
Immigration judges preside primarily over removal hearings. They may also participate in other adjudications such as proceedings to rescind adjustments of status under INA § 246, hearings to withdraw approval of schools for attendance by nonimmigrant students, 8 CFR § 214.4, and challenges brought by aliens ordered to remain in the country under the provisions of 8 C.F.R. §§ 215, 215.4, 215.5. Decisions made by immigration judges are final unless appealed to the Board of Immigration Appeals. 8 C.F.R. §§ 3.36, 3.37.
Until 1983, immigration judges were a part of the INS. These judges were senior immigration officers who held hearings in addition to their enforcement responsibilities. Concerns about the neutrality of judges with enforcement responsibilities prompted Due Process challenges to these hearings. In 1950, the Supreme Court ruled that the Administrative Procedure Act (APA) demands a separation of functions between immigration judges and enforcement officials. Wong Yang Sung v. McGrath (Sup.Ct.1950). Shortly thereafter, Congress passed a provision exempting immigration adjudications from the APA separation of functions requirements. Under the INA, Congress again expressly provided that immigration judges could also serve as enforcement officials. INA § 242(b). The act, however, did prohibit an immigration judge from presiding over a case on which he or she had previously acted as prosecutor or investigator. Id. The Supreme Court found no Due Process violation under these new provisions. Marcello v. Bonds (Sup.Ct.1955).
While Due Process arguments failed, the desire for professionalism within the INS and the need for more predictable, rational adjudication resulted in changes. Beginning in 1956, the INS required immigration judges to have law degrees. In 1962, the INS began to employ a staff of trial attorneys to present the government’s case; it became standard practice for a trial attorney (now “District Counsel”) or other INS officer to appear in almost every deportation and exclusion proceeding (now “removal proceeding”).
In 1983, the Department of Justice removed immigration judges from the INS and placed them under the direct supervision of the Associate Attorney General in the newly created Executive Office for Immigration Review. See 8 C.F.R. § 3. The Homeland Security Act, in 2002, placed the EOIR directly under the control of the Attorney General. HSA § 1102.
§ 3-3.2 The Board of Immigration Appeals
Unlike the immigration courts, the Board of Immigration Appeals (BIA) was never a part of the INS and has always been directly accountable to the Attorney General. In fact, the BIA was not created by the INA, but pursuant to regulations promulgated by the Attorney General. For many years, the Board consisted of five permanent members appointed by the Attorney General. During the 1990s, as its workload increased, the Board was expanded to twenty-three members. For many years, the Board heard all appeals in three-member panels. Due to a mounting backlog of cases, a 1999 rule allowed individual members to affirm immigration judges’ decisions in certain circumstances. A 2002 rule enacted to streamline the BIA reduced the size of the Board to eleven members and made single-member review the standard for all cases. Additionally, the single board member may affirm without opinion if he or she determines the case fits within the guidelines listed in 8 C.F.R. § 1003.1(a)(7). Affirmance without opinion has caused difficulties and controversy in the federal circuit courts. Review by three-member panels is reserved for cases posing complex or novel legal questions. En banc review is also available for particularly important cases.
Most appeals to the Board are from immigration judges’ decisions on removal. See 8 C.F.R. § 242.21 and 8 C.F.R. § 1003.1(b)(1), (2). The Board also hears appeals from other decisions of immigration judges, for example, relating to bonds, parole, or detention of non-citizens; the imposition of fines and penalties on carriers; and rescission of adjustment of status. The Board also reviews certain immigration adjudications, including determinations made on immigrant visa petitions based on family relationship. 8 C.F.R. § 1003.1(b). The Attorney General may review certain decisions of the Board. 8 C.F.R. § 1003.1(h).
The Administrative Appeals Office of the CIS (see § 3-1.2, supra) also has limited authority to hear appeals from immigration judge decisions. Hence, a practitioner is advised to consult the regulations to determine which route of appeal-the BIA or AAO-is appropriate. See 8 C.F.R. §§ 1003.1(b), 103.1(f).
§ 3-3.3 Other Units
Passage of the Immigration Reform and Control Act of 1986 (IRCA) led to the creation of two additional units dealing with employment discrimination within the Department of Justice. The first, the Office of Chief Administrative Hearing Officer (OCAHO), hears allegations of employer violations-particularly the employment of non-citizens who do not have work authorization and employer discrimination on the basis of national origin or citizenship status. The second unit, the Office of Special Counsel for Immigration-Related Unfair Employment Practices is empowered to investigate and bring charges under the employer sanctions provisions of IRCA.
§ 3-4 THE DEPARTMENT OF LABOR
Most non-citizens wishing to immigrate to the U.S. based upon an offer of permanent employment by a U.S. employer must first obtain certification from the Department of Labor that the employment can not be performed by a qualified, willing U.S. worker and that it will not adversely affect U.S. wages or working conditions. The labor certification program is a stark reminder that one of Congress’ aims in controlling immigration is to protect the U.S. labor force. Under the 1990 Act, labor certification is required for immigrants in the second employment related preference class (members of the professions holding advanced degrees and aliens of exceptional ability), the third preference class (skilled workers, professionals, and other workers), and for H-2 nonimmigrant visas. The Department of Labor will grant certification if it determines that there are insufficient qualified and willing U.S. workers available where the non-citizen will be employed and that the non-citizen’s employment will not have an adverse impact on wages or working conditions of similarly employed U.S. workers. INA § 212(a)(14). For a further discussion of the procedure to obtain a labor certificate, see § 5-5.1, infra.
While the Department of Labor ultimately grants the labor certification, the state employment service agency where the job will be located is substantially involved in the procedure. 20 C.F.R. § 656.21(a). The agency makes the initial review as to the local prevailing wage rate for the job, considers the availability of persons within the geographic area for the type of job being sought, and takes into account other factors. A prospective employer must follow a supervised recruitment procedure. The employer must advertise for the position, including a detailed job description stating the prevailing wage and hours. In addition, the 1990 Act requires a showing by the applicant employer that notice of the individual application for labor certification has been given to the union or bargaining representatives. Where no union exists, the employer must post the notice at the workplace. If the agency is satisfied that there are no qualified, willing U.S. workers for the position and that employing the non-citizen will not adversely affect U.S. labor, the labor certification is sent to the regional office of the Department of Labor for final review. The Department of Labor then examines the certification to ensure that all statutory and regulatory provisions are met. Once all applicable provisions are met, the Labor Department grants certification. Denials of labor certification may occur for a number of reasons including position requirements that are not normal to the occupation or justified by business necessity, improper recruitment procedures, or bad faith of the employer in reviewing U.S. worker applicants. Denials may be appealed by the prospective employer to the Board of Alien Labor Certification Appeals (BALCA), an appellate process that can last two years.
§ 3-5 THE DEPARTMENT OF HEALTH AND HUMAN SERVICES
The Department of Health and Human Services also plays a role in the administration of immigration law. The Department’s Public Health Service has doctors abroad and at ports of entry to give medical exams before visas are issued and to arriving non-citizens. These doctors play a significant role in the immigrant process by determining whether an individual’s physical or mental condition is within the grounds for inadmissibility.