Homeland Security Bill Passed with Few Civil Rights, Immigrant Protections

IMMIGRATION LAW & POLICY

Congressional Developments

HOMELAND SECURITY BILL PASSED WITH FEW CIVIL RIGHTS, IMMIGRANT PROTECTIONS
Immigrants' Rights Update, Vol. 16, No. 7, November 22, 2002

The United States Congress has passed legislation to create a cabinet-level homeland security department, legislation that omits important provisions proposed by the immigrants' and civil rights communities. Consequently, the profound impact that the new department will have on immigrants is likely to be negative. A more detailed description of the legislation will appear in the next issue of Immigrants' Rights Update.

The mission of the Dept. of Homeland Security (DHS) is to fight against terrorism. But the immigration services section, which will be called the Bureau of Citizenship and Immigration Services, is buried within the DHS as though non–U.S. citizens are indistinguishable from terrorists. Immigration enforcement is placed in the Bureau of Border Security within the DHS Directorate of Border and Transportation Security, but little provision has been made for coordination between immigration enforcement and services. The reorganization does not address the significant deficiencies that have historically plagued the Immigration and Naturalization Service in its dealings with noncitizens.

Protection of the civil rights of noncitizens is critical. But the bill provides for a DHS officer for civil rights and civil liberties, who can only "review and assess" information alleging civil rights and civil liberties abuses and racial and ethnic profiling by employees and officials of the DHS. The bill makes no mention of any power on the part of the civil rights officer to investigate these practices. The DHS's inspector general will have investigative authority, but the DHS secretary, who is the head of the agency, will be able to restrict significantly that power. The undersecretary for Border and Transportation Security will be able to conduct investigations of noncriminal allegations of misconduct, corruption, and fraud involving employees of the Bureau of Border Security that are not subject to investigation by the inspector general. However, such investigations will, in effect, amount to a department investigating itself, and not an independent investigation. An ombudsman within the Bureau of Citizenship and Immigration Services will have the authority only to assist in resolving "problems" within the Bureau. Significantly, the ombudsman's background must be in customer service and immigration law, not investigations.

The homeland security legislation keeps the immigration court system (Executive Office for Immigration Review, or EOIR) within the Dept. of Justice. But it does not guarantee that the EOIR will operate fairly or remain truly independent. While matters related to unaccompanied immigrant minors are transferred to the Office of Refugee Resettlement in the Dept. of Health and Human Services, the bill fails to protect unaccompanied minors who need court-appointed guardians ad litem and lawyers.

Although the immigrants' rights, civil rights, and human rights communities actively promoted measures to protect the rights of noncitizens, they are largely absent from the bill that is about to become law.