Immigration Issues in America Security-minded America

• Publication year: 2004
• Pages: 11

33 Colo.Law. 11 Colorado Lawyer 2004.

2004, March, Pg. 11. Immigration Issues in America Security-Minded America

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Vol. 33, No. 3, Pg. 11

The Colorado Lawyer
March 2004
Vol. 33, No. 3 [Page 11]

Articles

Immigration Issues in America Security-Minded America
by Patricia Medige

Partricia Medige, Denver, is Managing Attorney for Colorado Legal Services, Migrant Farm Worker Division, as well as President of the Board of Directors for the Rocky Mountain Immigrant Advocacy Network and a member of the Board of Directors, El Centro Humanitario Para Los Trabajadores (Humanitarian Center for Workers). She may be contacted at (303) 866-9366 or pmedige@colegalserv.org

A steady stream of federal and state legislation has changed aspects of immigration law and the rights of immigrants over the past several years. This article provides practitioners who do not specialize in immigration law with basic information that may allow them to identify possible trouble areas facing their noncitizen clients

Over the past several years, as the immigrant population has continued to rise, special legal issues have arisen for practitioners representing noncitizens.1 Domestic relations criminal, employment, public benefits, and many other kinds of cases must be analyzed differently when noncitizens are involved. Just as attorneys have realized how important it is to learn about noncitizen issues, many laws and local practices have changed. One important change, for example, is that the Immigration and Naturalization Service ("INS"), which was the central governmental authority over immigration, has been abolished and no longer even exists under that name.

This article examines the restructuring of the INS, as well as changes in state and federal laws that affect noncitizens in Colorado. Some of these laws have changed recently, and will continue to change, primarily due to the government's response to the terrorist attacks of September 11, 2001 ("9/11"). In fact, during the past few years, immigration has become one of the most rapidly changing areas of law.

This article serves as an overview of some of these changes so as to provide practitioners who do not specialize in immigration law with basic information that may allow them to identify possible trouble areas their noncitizen clients may face. Although the article cannot offer a comprehensive treatment of the subject, it does cover some key statutory provisions affecting noncitizens since 9/11. First, the article describes the Homeland Security Act of 2002 ("HSA")2 and the agency structure that has absorbed the INS: the new Department of Homeland Security ("DHS"). It then discusses the Executive Office for Immigration Review, expedited naturalization issues, and the USA PATRIOT Act of 2001.3 Finally, the article summarizes the provisions of several new bills enacted by the Colorado General Assembly that will affect the state's noncitizen population.

Key to Immigration Law Acronyms

BCBP: Bureau of Customs and Border Protection
BIA: Board of Immigration Appeals (also "Board")
DHS: Department of Homeland Security
EOIR: Executive Office for Immigration Review
HSA: Homeland Security Act of 2002
ICE: Bureau of Immigration and Customs Enforcement
INA: Immigration and Nationality Act
INS: Immigration and Naturalization Service
NSEERS: National Security Entry Exit Registration System (also "Special Registration")
ORR: Office of Refugee Resettlement
SEVIS: Student and Exchange Visitor Information System
USA PATRIOT Act: Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001
USCIS: Bureau of Citizenship and Immigration Services
US-VISIT: United States Visitor and Immigrant Status Indicator Technology

STRUCTURE OF
THE NEW DHS

Although many people continue to refer casually to the INS when speaking about this country's immigration authorities, the INS was abolished March 1, 2003. The HSA,4 signed into law November 25, 2002, disbanded the INS and folded its various functions into different "bureaus" of the new DHS.5 The DHS was officially born on January 24, 2003, but the transition of the INS to DHS actually occurred on March 1, 2003.6

Although 9/11 was the catalyst for the abolition of the INS, "reorganization" had been debated long before 9/11, particularly the separation of enforcement and service functions. On a national level, critics felt that the INS's benefits branch at times seemed to have a "law-enforcement mentality," more appropriate for enforcement staff than for asylum and naturalization examiners.7 The quality of service at the INS also was criticized.8 However, some observers feared an INS split would "replace one troublesome bureaucracy with two troublesome and warring bureaucracies."9 Therefore, although security and terrorism concerns currently dominate the national debate, and ultimately brought about the demise of the INS, customer service and accessibility also were considerations in the not-too-distant past. The government would do well to return its attention to these concerns, while maintaining sensible security measures.

The HSA resulted directly from the 9/11 hijackings of four aircraft and the subsequent attacks on the World Trade Center in New York City and the Pentagon in Washington. The HSA was touted as an effort to better coordinate various domestic agencies to protect the country against further terrorist attacks.10 According to the HSA, the primary mission of the newly established DHS includes

to prevent terrorist attacks within the United States; reduce the vulnerability of the United States to terrorism; [and] minimize the damage, and assist in the recovery, from terrorist attacks that do occur within the United States.11

In April 2003, new Secretary of Homeland Security Tom Ridge noted that he now oversees 180,000 employees from twenty-two combined agencies.12

The HSA fulfills a longtime proposal to separate the "enforcement" functions of the former INS from the "benefits" or "services" functions. As noted, formerly, these were separate branches of the INS, but are now different bureaus within the DHS. The Bureau of Citizenship and Immigration Services ("USCIS")13 now handles immigration services, whereas the Bureau of Immigration and Customs Enforcement ("ICE")14 oversees the enforcement functions in the interior of the United States (away from its borders).15 A third bureau, the Bureau of Customs and Border Protection ("BCBP"), handles immigration functions at the borders, such as border patrol.16

This separation between USCIS and ICE is intended to be so complete that the statute prohibits the government from recombining the two into a single agency or to "otherwise combine, join, or consolidate functions or organizational units" of the two bureaus.17 The HSA even establishes separate U.S. Treasury accounts for the two bureaus, requires separate budget requests, and generally prohibits the transfer of fees between the two bureaus.18 The various functions of the bureaus are described in the following sections.

USCIS Immigration

Services

Immigration services include adjudications of immigrant visa petitions; naturalization applications; asylum and refugee applications; applications for permanent residence (known as "adjustment of status"); and other adjudications performed at service centers, such as employment authorization documents. Under the HSA, all of these services are now the responsibility of USCIS within the DHS.19 USCIS generally handles the applications of people affirmatively trying to obtain status in the United States, ranging from asylum to lawful permanent residence ("green cards") to U.S. citizenship. To the average applicant in USCIS waiting rooms, there may appear to be little difference between the former INS and USCIS. For example, many of the same staff of the former INS "Examinations" department continue at USCIS Denver. At this time, most are located in the same building, although the office has long outgrown this location and may move sometime soon.

In spite of the surface similarities between USCIS and the former Examinations branch of INS, all involved, from applicants to the private bar to USCIS staff, face a far different world now than before 9/11. There are new and often conflicting pressures on a national level, with little apparent local discretion. First are the pressures to improve services, as mandated under the HSA.20 Under this requirement, Secretary Ridge must submit a plan detailing how USCIS will complete "efficiently, fairly and within a reasonable time" its mandated adjudications.21 For each type of adjudication, this report is to include the potential savings of resources that may be implemented, along with processing time goals.22 Thus, the plan must consider efficiency, fairness, processing time, and savings of resources. Second and more immediately, other mandates have complicated USCIS adjudications and imposed conflicting responsibilities. There is pressure to speed up adjudications. However, additional security checks have slowed down adjudications for months, and for some, nearly a year.

For example, in response to 9/11, USCIS began implementing Federal Bureau of Investigation ("FBI") name checks along with FBI fingerprint checks. According to USCIS, the FBI fingerprint checks can be completed within forty-eight hours,23 but the name checks can cause long delays for certain cases, including residency and citizenship applications. To conduct name checks, USCIS sends the FBI a list containing the names, dates of birth, and countries of birth of adjustment applicants.24 The FBI name check looks at whether the applicant is or has...