New Regulations Fold INS into DHS, Address Division of Immigration Jurisdiction Between DHS and DOJ

IMMIGRATION LAW & POLICY

Removal Procedures and Defenses

NEW REGULATIONS FOLD INS INTO DHS, ADDRESS DIVISION OF IMMIGRATION JURISDICTION BETWEEN DHS AND DOJ
Immigrants' Rights Update, Vol. 17, No. 2, April 8, 2003

The U.S. Depts. of Homeland Security (DHS) and Justice (DOJ) have begun issuing regulations that implement the transfer of the functions of the Immigration and Naturalization Service from the DOJ to the DHS and delineate the manner in which jurisdiction over immigration matters—including the immigration justice system—is to be divided between the two departments. Under the Homeland Security Act of 2002, the INS ceased to exist on Mar. 1, 2003. The Executive Office for Immigration Review (EOIR), which includes the immigration courts and the Board of Immigration Appeals, remains within the DOJ.

Reorganization of Regulations. One new set of regulations, issued by the attorney general as a final rule without public notice or the opportunity for public comment, purports to simply divide existing regulations between those pertaining to the former INS and those pertaining to the EOIR. The commentary to the rule states that once this is done, the DHS secretary can then make substantive changes to INS rules and the attorney general can make substantive changes to EOIR rules, and the two can consult each other when changes in those rules would affect both the EOIR and functions of the former INS. The justification claimed for issuing this rule as a final one is that it makes only "technical amendments to the organization, procedures and practices of the Department of Justice and reflects the transfer of functions contemplated by the Homeland Security Act of 2002."

The rule reorganizes title 8 of the Code of Federal Regulations by creating a new chapter V in 8 CFR and transferring or duplicating certain parts and sections to the new chapter V and to 28 CFR chapter I. The rule is not a paragraph-by-paragraph jurisdictional split; instead, it provides for substantial duplication of regulations, purportedly until each agency is able to issue its own. A result of this duplication in the regulations, their temporary nature, and the likelihood that the duplication will result in incorrect citation and conflicting policies is likely to be disorganization within the government and confusion for everyone who has to deal with the new system.

The new rule does reflect the attorney general's apparent intent to retain authority over certain immigration matters that, under the Homeland Security Act, may no longer be under his jurisdiction. According to the rule's summary, the Attorney General will retain "other functions related to immigration that are indigenous to the functions of the Attorney General." Chapter I, part 1, sec. 103.37(g) specifically provides that precedent decisions of the BIA and the attorney general will have a binding effect on the DHS. Moreover, as the commentary to the new rule states, the rule also specifically provides that the DHS secretary "may refer cases or questions of law to the Attorney General for decision at any time. . . . At the same time, the Attorney General has specified the reservation of the parallel authority to refer cases to himself for decision at any time." It remains to be seen how the two departments will resolve any conflicting interpretations of law resulting from this new arrangement.

Authority of and Delegation of Authority by the Secretary of Homeland Security. A final rule issued by the DHS provides that the department secretary now has the authority formerly vested in the INS commissioner, and that the secretary may delegate that authority to any DHS official, officer or employee, or to any other employee of the U.S., to the extent allowed by law. This delegation can be by any means he chooses and need not be published in the Federal Register. Under the new rule, any U.S. employee to whom such authority is delegated may issue notices to appear. The rule also grants the DHS secretary new power to designate as an immigration officer any employee or officer of the DHS or of the U.S., or any senior or supervisory officer of such employee.

These provisions represent a significant expansion of who can exercise delegated authority compared to what the previous regulations provided for. Under the new rule, federal employees who have no training, experience, or expertise in immigration law may now be given authority to enforce it, and the DHS secretary may grant such authority without having to issue new regulations or even providing notification via the Federal Register. Furthermore, the DHS has chosen to issue this rule as a final one, justifying this maneuver by claiming that, since this set of regulations is related to agency organization and management, they do not constitute a "rule." Comments on the final rule may nonetheless be submitted.

Prior to the INS reorganization, the attorney general had already quietly assumed the authority to delegate immigration enforcement authority outside the INS. In an only recently disclosed Dec.18, 2002, directive, he authorized the FBI to exercise the functions of immigration officers for the purpose of investigating, locating, and apprehending aliens who are in the U.S. in violation of the Immigration and Nationality Act or of any law or regulation regarding visas, alien admissions, and immigrant or nonimmigrant maintenance of status, as well for enforcing these statutes or regulations, including special registration. The attorney general's order did not appear in the Federal Register and came to light only after an anti-immigrant Web site disclosed that it had been issued.

Freedom of Information Act and Privacy Act Procedures. The DHS also has issued an interim final rule that provides for disclosure of agency records and information under the Freedom of Information Act and the Privacy Act. While this rule provides for disclosure comparable to what other federal administrative agencies are required to provide, it does not resolve a fundamental underlying problem in the Homeland Security Act itself. That legislation provides that unclassified information pertaining to critical infrastructure need not be disclosed by the DHS if such information is voluntarily submitted to the agency. Critics fear that companies will take advantage of this provision-by volunteering information to the DHS-to shield themselves from scrutiny about practices they engage in that may negatively impact the environment and the public's health.

The DHS invoked a limited exception to the normally required notice and comment period which is to precede issuance of a final rule on the grounds that "for good cause" it has concluded that notice and comment would be "impracticable, unnecessary, or contrary to the public interest." Despite this, the DHS asked for comments about the interim final rule.

Technical Amendments. Another recently issued rule makes technical amendments to internal citations in 8 CFR chapter V.

68 Fed. Reg. 9,824-46 (Feb. 28, 2003) (reorganization of regulations);
68 Fed. Reg. 10,922-24 (Mar. 6, 2003) (authority of DHS secretary);
68 Fed. Reg. 4,056-69 (Jan. 27, 2003) (FOIA and Privacy Act procedures);
68 Fed. Reg. 10,349-61 (Mar. 5, 2003) (technical amendments).