Homeland Security Proposals: Issues Regarding Transfer of Immigration Agencies and Functions

Publication Date: February 2003

Publisher: Library of Congress. Congressional Research Service

Author(s):

Research Area: Government; Population and demographics

Type:

Abstract:

As the 107th Congress considered the broader question of homeland security and the creation of a Department of Homeland Security (DHS), the issue of where to locate the various immigration and citizenship functions performed by the Department of Justice's (DOJ) Immigration and Naturalization Service (INS) and the Department of State's (DOS) Bureau of Consular Affairs posed a distinct set of questions. Congress weighed what immigration functions constituted border security, what were homeland security, and whether those immigration functions that may not have homeland security-related roles should be transferred to the proposed DHS. The debate centered on several options: place all of INS in a newly created DHS under a Border Security and Transportation Division; place INS's enforcement functions in DHS under the Border Security and Transportation Division but leave INS's service function in DOJ under a newly created Bureau of Citizenship and Immigration Services; place all of INS in DHS in its own Directorate of Immigration Affairs, which would have two separate bureaus for the enforcement and service functions; or place INS's enforcement functions in a DHS Bureau of Border Security and INS's service functions in a DHS Bureau of Citizenship and Immigration Services -- the choice eventually enacted.

In addition to the transfer of INS, there had been considerable debate over whether the issuances of visas should remain with the DOS. While some called for transferring the visa issuance function to DHS, a compromise that maintains the visa issuance function with DOS but give the new Secretary of DHS authority to issue regulations on visa policy was included in legislation that was passed by Congress.

A third immigration function that sparked controversy was the placement of the Executive Office for Immigration Review (EOIR). Past legislative proposals would have created statutory authority within DOJ for EOIR. Congress included formal authorization of EOIR at DOJ as part of the enactment of DHS.

The Homeland Security Act of 2002 (P.L. 107-296, H.R. 5005) was signed into law on November 25, 2002. The Act transfers INS' immigration service and enforcement functions to a new DHS into two separate Bureaus. The visa issuance function remains at DOS' Consular Affairs; however, the Secretary of DHS will have authority over visa issuance regulations. Other immigration functions are either transferred to the Department of Health and Human Services or remain in DOJ. On January 30, 2003, the Administration submitted a reorganization plan that separates the immigration enforcement function, along with several other agencies, into two separate bureaus: the Bureau of Immigration and Customs Enforcement and the Bureau of Customs and Border Protection. The Plan will take effect on March 1, 2003.