Authority to Enforce the Immigration and Nationality Act (INA) in the Wake of the Homeland Security Act : Legal Issues

Publication Date: July 2003

Publisher: Library of Congress. Congressional Research Service

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Research Area: Law and ethics

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Abstract:

For decades, the administrative authority to interpret, implement, enforce, and adjudicate immigration law within the U.S. lay almost exclusively with one officer: the Attorney General. The most general statement of this power was found in ?103(a)(1) of the Immigration and Nationality Act of 1952 (INA), the statute that comprehensively regulates immigration law in the United States. With the transfer of nearly all immigration functions to the Department of Homeland Security on March 1, 2003, however, ?103(a)(1) of the INA has necessarily required various modifications to clarify the respective authorities newly obtained by the Secretary of Homeland Security and retained by the Attorney General. Accordingly, ?103(a)(1) of the INA has been amended twice, and now places primary responsibility for enforcing and administering immigration law in the United States with the Secretary of Homeland Security.

Section 103(a)(1) as amended, however, still apparently allows the Attorney General to retain a significant amount of authority to enforce, administer, and interpret immigration law. The extent of the Attorney General's authority has become highly contentious in the wake of several events, including (1) the enforcement of immigration laws by the DOJ's Federal Bureau of Investigation even after all immigration enforcement functions were effectively removed from the DOJ, (2) DOJ's issuance of immigration-related regulations on February 28, 2002, the day before the abolishment of the Immigration and Naturalization Service, and (3) the Attorney General's ruling in In re D-J-, Respondent. Considerable cooperation between the two Departments in addition to congressional measures to clarify the INA, such as the Homeland Security Technical Corrections Act of 2003 (H.R. 1416), may be in order to resolve the complexities presented by the substantial transformation. This report will be updated as warranted.