Uscis's Fraud Detection and National Security Directorate: Less Legitimate Than Inspector Clouseau, but Without the Savoir Faire

• Publication year: 2019

Angelo A. Paparelli^*

Abstract: The Homeland Security Act of 2002 (HSA) contains an express prohibition limiting the legal authority of U.S. Citizenship and Immigration Services (USCIS), a component agency of the Secretary of Department of Homeland Security (DHS), to certain prescribed immigration-related functions. Under the HSA, USCIS may only engage in the adjudication of requests for immigration benefits such as work and travel permission, lawful permanent residency and naturalization, whereas the HSA authorizes other DHS agencies, U.S. Immigration and Customs Enforcement and U.S. Customs and Border Protection, to engage in immigration-related investigation and enforcement activities. In 2003, however, the then-Secretary of DHS delegated authority to engage in investigative activities to USCIS, even though the HSA expressly prohibits such a reallocation of immigration duties. In 2004, USCIS created the Fraud Detection and National Security (FDNS) Directorate and tasked it with investigative and law enforcement responsibilities. Since 2004, FDNS has conducted thousands of site visits at business establishments and religious institutions in the United States, and uncovered comparatively few instances of suspected immigration-benefits fraud. Given the ban in the HSA on USCIS's performance of investigative duties, FDNS is an unlawfully constituted subcomponent of USCIS and its site-visit program violates the HSA.

Introduction

Despite the last two years of our nation's history, the constitutional principle of separation of powers remains the hallmark of the American legal system. Its key feature, the system of checks and balances, was enshrined by the "Framers of our Constitution [who] were not inexperienced doctrinaires [but] long-headed statesmen [under] no illusion that our people enjoyed biological or psychological or sociological immunities from the hazards of concentrated power."

As the author of these words, Justice Felix Frankfurter, observed, the "accretion of dangerous power does not come in a [day, rather it comes], however slowly, from the generative force of unchecked disregard of the restrictions that fence in even the most disinterested assertion of authority."¹

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Justice Frankfurter's wisdom and the Founders' foresight still resonate today. As this article will show, since 2004,² U.S. Citizenship and Immigration Services (USCIS)—a component agency within the Department of Homeland Security (DHS)—has maintained an unlawfully constituted "directorate" known as Fraud Detection and National Security (FDNS).

FDNS has consistently flouted a foundational proscription in the Homeland Security Act of 2002 (HSA)³ mandating that the enforcement of the immigration laws remain separate and distinct from the adjudication of requests for immigration benefits (e.g., work permits, visa-status grants, lawful permanent residence, and naturalization). In short, FDNS—although sited in USCIS, an agency that should solely be engaged in adjudicating requests for immigration benefits—plays a key (albeit unlawful) role in everyday civil and criminal investigation and enforcement of U.S. immigration laws.

The Good and Bad Old Days of the Immigration and Naturalization Service

Before DHS and its component immigration agencies (USCIS, U.S. Customs and Border Protection, and U.S. Immigration and Customs Enforcement) came to be, there was the legacy agency, Immigration and Naturalization Service (INS). Birthed by Section 14 of Executive Order 6166 (June 10, 1933), INS started out within the Department of Labor (DOL), but later was transferred to the Department of Justice (DOJ).⁴ During its history, the agency was roundly criticized for what many viewed as schizophrenic behavior because it was forced by statute to fulfill two seemingly contradictory mis-sions—on the one hand, investigating and enforcing the immigration laws, and on the other, deciding (adjudicating) whether to approve or deny petitions and applications for immigration and naturalization benefits.⁵

In 1994, then-INS Commissioner Doris Meissner disputed the claim of contradictory missions in prepared testimony before Congress. She identified "control with compassion" as one of her tenure's three overarching goals:

As long as I have been working with immigration issues there has been a debate over the compatibility of INS' service and enforcement missions. Many have said that these two forces are contradictory and incompatible within a single agency. I strongly disagree with this view.
Anyone familiar with immigration issues can attest that such issues generally defy categorization as strictly "service" or "enforcement." I see the service and enforcement components as mutually supportive parts of effective regulation of immigration processes. It is the responsibility of every INS employee to take this attitude in the accomplishment of his or her work. We must remember that behind every case is a human being, and that ultimately our customer is also the American public and the good of the nation.⁶

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Despite efforts at internal restructuring, INS's fate was sealed, however, with media reports that the agency, a half-year after September 11, 2001, mailed its posthumous approval of an application for change of nonimmigrant status from B-2 business visitor to F-1 student for two September 11 hijackers, including the operational ringleader, Mohammed Atta, to engage in flight training within the United States.⁷

The Homeland Security Act of 2002

Predictable outrage ensued. Soon Congress passed, and President George W. Bush signed the HSA, and on March 1, 2003, the INS was dismantled.

Given the ongoing policy debate, it came as no surprise that the Senate, in its June 24, 2002, Report of the Committee on Governmental Affairs on S. 2452,⁸ a bill that would ultimately be meshed into the HSA, acknowledged that S. 2452's proposed statutory "division of INS programs into 'enforcement' and 'service' components tracks an administrative reorganization plan that is already underway."

In enacting the HSA, however, Congress deviated from S. 2452 by creating a new Department of Homeland Security to house the enforcement and service components of the former INS rather than follow the plan contemplated in the Senate bill, which envisioned that "the law enforcement pieces transferred from INS . . . would necessarily need to maintain close coordination with the service programs that would remain in the Justice Department."

As a result, the HSA maintains this clear separation of immigration enforcement and benefits functions.⁹ A review of the HSA reveals the express intention of Congress to separate into distinct agencies the inconsistent and too-often contradictory demands that had been placed on INS.

Specifically, HSA §451(b) ("Transfer of Functions from [INS] Commissioner") "transferred from the [INS] Commissioner to the Director of the Bureau of Citizenship and Immigration Services [now known as USCIS] the following functions . . .

"(1) Adjudications of immigrant visa petitions.

"(2) Adjudications of naturalization petitions.

"(3) Adjudications of asylum and refugee applications.

"(4) Adjudications performed at service centers.

"(5) All other adjudications performed by the [INS] immediately before the effective date specified in [the HSA]." (Emphasis added.)

Another provision in the HSA, §441, created two new DHS law enforcement agencies—now known as U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP)—and transferred to them the former INS authority over:

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"(1) The Border Patrol program.

"(2) The detention and removal program.

"(3) The intelligence program.

"(4) The investigations program.

"(5) The inspections program." (Emphasis added.)

Although HSA §1502 granted the President the authority to reorganize the new DHS by submitting to Congress a plan of reorganization that "shall contain, consistent with this Act, such elements as the President deems appropriate (emphasis added)," another provision, HSA §471, now codified at 6 U.S.C. §291(b), expressly limited the President's power to restructure DHS. Section 471 thus contains the following "PROHIBITION [capitalization in original] [:]"

The authority provided by [HSA §]1502 [codified at 6 USC §542] may be used to reorganize functions or organizational units within the Bureau of Border Security or the Bureau of Citizenship and Immigration Services, but may not be used to recombine the two

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