INS Covers More Ground Than Homeland Security; Don't move the agency to a new department.
Reprinted from the Los Angeles Times
July 1, 2002
By T. Alexander Aleinikoff
The location of the Immigration and Naturalization Service in the federal government has traditionally reflected the priorities of the day. In 1913, the Bureau of Immigration was placed in the newly created Department of Labor. In 1940, when internal security concerns were paramount, the INS was transferred to the Department of Justice. So it is not surprising that President Bush would now propose moving the INS to a new Department of Homeland Security.
The terrorist threat facing the U.S. is overwhelmingly of foreign origin--all the Sept. 11 hijackers were noncitizens. And it is widely recognized that the INS needs a thorough overhaul. Thus, transfer of the INS to a new department seems both prudent and necessary. Nonetheless, the temptation should be resisted. This quick-fix solution would undermine reform of the INS, deflect the agency from its core missions and hinder the formulation of coherent immigration policy.
The vast majority of immigrants entering the U.S. are from Latin America and Asia. More than 750,000 green cards are issued each year; most go to immigrants joining family members or taking jobs for which there are no available U.S. workers. An additional 60,000 or so people enter as refugees or are granted political asylum (although the number of refugees admitted post-Sept. 11 is lower).
The INS also adjudicates several hundred thousand applications for naturalizations each year. Furthermore, the agency's Border Patrol makes about 1 million arrests annually at the southwest border; the vast majority of those picked up there are Mexicans.
Foreign nationals who participate in terrorist activities or organizations are not entitled to residency cards, enter as visitors or naturalize. Thus, ensuring there are no terrorists among those granted admission or citizenship is a crucial function of the INS. But it is a small part of its overall work.
Of the more than 1 million people stopped at or near the border or deported from the U.S. each year, only a handful are disqualified on terrorist grounds. To place the INS in a Department of Homeland Security, then, is dramatically out of proportion to its tasks.
Based on similar reasoning, why shouldn't the department absorb the Bureau of Prisons, which imprisons terrorists. Indeed, it is curious that the Bush proposal leaves the FBI--also part of the Department of Justice--out of a new department even though the bureau's work is much more closely related to the fight against terrorism.
Equally important, moving the INS to Homeland Security would have a dramatic influence on the formulation of immigration policy. The central immigration issues on the table--such as negotiations with Mexico, temporary worker proposals, more effective removal of criminal aliens and modification of the overly harsh 1996 immigration legislation--have little or nothing to do with the fight against terrorism.
The debate over restructuring the INS, even after Sept. 11, has focused on how immigration policymaking and execution can be improved within the government. It was widely agreed that this requires an elevation of the agency's functions. But placing the INS as a subunit in one division of a new department would only further submerge policy formulation. And it would inevitably view all immigration issues through the lens of fighting terrorism.
To be sure, INS officers have a vital role in preventing terrorists from entering the U.S. The INS stands to benefit from the centralization of intelligence analysis in a Homeland Security Department. The agency also can contribute information about patterns of entry and exit of groups and people. It might even be sensible to consider plans to merge parts of agencies that work at the border, such as the Border Patrol and customs. But none of this argues for placing the entire immigration function and immigration policymaking in a department established to fight terrorism.
It is easy to see why the Bush administration--exasperated at INS incompetence--might think that putting the troubled agency in a new department would be a stimulus for change. But the important task of reforming the INS would be buried in a Department of Homeland Security. And the formulation of policy with vital economic, social and demographic consequences for this nation would be disserved.
T. Alexander Aleinikoff is a professor at the, Georgetown University Law Center and a senior associate at the Migration Policy Institute. He was general counsel and executive, associate commissioner of the INS from 1994 to 1997.
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