The Immigration and Naturalization Service (INS), with a current annual budget of $4.3 billion, is the primary agency charged with enforcing the nation's immigration law. Regulating immigration can be viewed as having two basic components: stemming illegal immigration (enforcement) and facilitating legal immigration (service). The Administration is moving forward to restructure the agency internally by separating the agency's enforcement and service functions, but maintains that the immigration function must be managed by a single executive who can integrate immigration policy, standards, and operations. There is no statutory requirement that the Administration gain Congress's formal approval of its plan to restructure INS. Congress, however, could choose to mandate legislatively that INS be dismantled or restructured differently.

On March 22, 2000, the House Judiciary's Immigration and Claims Subcommittee approved a bill to dismantle INS and establish a bureau of immigration services and a bureau of immigration enforcement within the Department of Justice (H.R. 3918). This bill is scheduled for full committee markup on June 21, 2000. Last year, the Senate Judiciary's Immigration Subcommittee held a hearing on another INS restructuring proposal (S. 1563), but so far this session the Senate has not addressed this issue. (For further analysis, see CRS Report RL30257 , Proposals to Restructure the Immigration and Naturalization Service.)

Introduction

Although there have been many proposals to reorganize the federal immigration system in the past, the most recent proposals were prompted in part by a series of recommendations made by the U.S. Commission on Immigration Reform. The commission recommended that the federal immigration system be fundamentally restructured by, among other things, dismantling INS. The commission described INS as an agency suffering from conflicting priorities and mission overload, whose service and enforcement missions were incompatible. ⁽¹⁾

The Administration has categorically rejected the idea that INS should be dismantled, and is moving forward to restructure INS internally by separating immigration services and enforcement functions. By establishing clear chains of command, clear roles and responsibilities, appropriate coordinating mechanisms, and flexible resource management, the Administration asserts that it can achieve four goals: greater accountability, enhanced customer service, seamless enforcement, and a coherent immigration system.

In light of increased resources, many have questioned what has prevented INS from achieving these goals previously. In recent years, INS has experienced tremendous growth in its budget and staff: from $1.5 billion and 18,000 funded positions in FY1993, to $4.3 billion and nearly 33,000 funded positions in FY2000. Despite these increases, INS continues to come under fire for not meeting its obligations under the law. Large pending caseloads have continued to plague INS. Border control and security continues to be an ongoing issue for Congress. And the agency has continued to come under intense criticism for failing to deport criminal aliens in an expeditious manner.

The General Accounting Office (GAO) and others have also enumerated many longstanding problems within INS. In July 1997, GAO issued a report on INS management, ⁽²⁾ in which it found that INS had made some progress, but many longstanding issues had yet to be adequately addressed. According to GAO, INS had established a strategic plan and a priorities-based management process, but other changes had exacerbated unclear lines of accountability and poor intra-agency communications and coordination. In addition, GAO reported findings of the National Academy of Public Administration (NAPA) ⁽³⁾ related to weaknesses in INS's budget planning, formulation, and execution process. Neither GAO nor NAPA, however, recommended restructuring the agency to more clearly separate INS's enforcement and service functions as a solution to the agency's management problems. Rather, GAO and NAPA recommended clarifying existing lines of accountability and communication and improving the agency's financial accounting, budget, and resource allocation processes.

Legislative Proposals to Restructure INS in the 105^th Congress

Restructuring INS emerged as a legislative issue when FY1998 Commerce-Justice-State (CJS) appropriations report language directed the Attorney General to review recommendations made by the U.S. Commission on Immigration Reform and submit plan to Congress a plan to restructure INS specifically and the federal immigration system generally (P.L. 105-119; H.Rept. 105-207). In its final report to Congress, the commission recommended that the processing of legal immigration and naturalization claims be transferred to the Department of State. With the exception of worksite enforcement and detention, INS enforcement programs would remain at the Department of Justice as an elevated enforcement bureau. INS's responsibility for worksite enforcement would be transferred to the Department of Labor. The commission suggested turning over most of INS's detention operations to the U.S. Marshal's Service or the Bureau of Prisons. The commission also recommended that an independent appeals board be set up to handle all administrative appeals of immigration-related determinations made by the Departments of State, Justice, and Labor.

The commission's recommendations were wide-ranging and on such a scale that their implementation would be complicated and, most likely, incremental. The commission maintained that, by separating INS's enforcement and service functions, management and budget efficiencies could be achieved. The commission's recommendations followed on the heels of a number of INS-related controversies, like Citizenship-USA, which lent momentum and credence to the commission's finding that the agency's service and enforcement functions were incompatible.

The Administration hired a private firm, Booz-Allen & Hamilton, to examine the agency's enforcement and service missions, and increase managerial accountability. The Booz-Allen report served as the basis for INS's report to Congress entitled Framework for Change. Representative Harold Rogers, chairman of the CJS appropriations subcommittee, expressed his strong dissatisfaction with this report, however, because in his view it did not adequately address the commission's recommendations. On July 17, 1998, Representative Rogers introduced H.R. 4264, which was similar to a bill introduced earlier by Representative Reyes (H.R. 2588). H.R. 4264 would have separated INS enforcement programs (Border Patrol, inspections, investigations, detention and deportation, and intelligence) and all attributable support assets, and created a Bureau of Enforcement and Border Affairs as a stand-alone agency in the Department of Justice. The House Judiciary immigration subcommittee approved H.R. 4264, as amended, on July 30, 1998. The bill was scheduled for full committee markup, but this never occurred as the full committee turned its attention to impeachment.

The Administration's Framework for Change

Attempts to include restructuring language in the FY1999 Omnibus Appropriations Act prompted the Administration to renew its efforts to restructure INS internally. On October 7, 1998, INS management established a Restructuring Office and contracted with PricewaterhouseCoopers to develop a detailed blueprint to restructure the agency based on A Framework for Change. The Administration's restructuring plan was submitted to the House and Senate appropriations committees on April 1, 1998. In its report, the Administration acknowledged that the Commission on Immigration Reform had correctly identified many longstanding problems within INS, such as insufficient accountability between field and headquarters, competing priorities within field offices, lack of consistency in application of the law, a need for greater professionalism, overlapping organizational relationships, and significant management weaknesses. ⁽⁴⁾

The Administration is now engaged in a planning process that would eventually separate the agency's enforcement and service functions operationally, so that there will be two distinct lines of command in the agency for the two functions. At headquarters, the Commissioner's Office would be supported by an Office of Chief Financial Officer, which would take the lead in budget planning. The Commissioner's Office would be supported by a new Office for Strategy. Below this level, there would be three offices headed by Associate Commissioners for 1) enforcement, 2) immigrant services, and 3) shared support. In the field, the Administration's plan would eliminate the current structure of regions and district offices. In its place, there would be two structures, one for enforcement programs and one for adjudication (immigrant services) programs. According to the Administration, each branch's field structure would be designed jurisdictionally and geographically to optimize the allocation of resources and staff. Both branches would be supported by an Office of Shared Support, which would oversee INS's traditional administrative and information/records management functions.

Legislative Proposals to Restructure INS in the 106^th Congress

There are effectively three legislative proposals to restructure INS pending in the 106^th Congress. With slight variations, all three proposals would restructure INS in order to more clearly separate the agency's service and enforcement functions.

The Immigration Reorganization and Improvement Act of 1999 (H.R. 3918) would dismantle INS and establish a bureau of immigration services and a bureau of immigration enforcement within the Department of Justice. It was approved by the House Judiciary's Immigration and Claims Subcommittee on March 22, 2000. This bill is identical to H.R. 2528, as introduced by Representative Harold Rogers in July 1999, which was approved by the House Immigration Subcommittee last fall. The subcommittee chair, Representative Lamar Smith, asserted that the introduction of H.R. 3918 was necessary, because the amended version of H.R. 2528 represented a compromise negotiated with the Attorney General from which the Administration pulled its support, stalling full committee markup.

Besides creating separate service and enforcement bureaus, the amended version of H.R. 2528 would have also established an Office of the Associate Attorney General for Immigration Affairs in DOJ. This office would have overseen and supervised the directors of these bureaus, and the Executive Office for Immigration Review as well. ⁽⁵⁾ Unlike S. 1563, described below, the statutory responsibility for carrying out immigration service and enforcement functions would have devolved from the INS Commissioner to bureau directors, rather than be transferred to the Associate Attorney General.

In contrast, H.R. 3918 would dismantle INS, establishing two new bureaus in DOJ, without establishing an Associate Attorney General's office to coordinate and oversee immigration service and enforcement operations. The Bureau of Immigration Services would be responsible for processing and adjudicating family- and employment-based immigrant petitions, nonimmigrant visa changes of status and extensions of stay, naturalization applications, refugee and asylum applications, and service center operations. The Bureau of Immigration Enforcement would be responsible for the activities and operations currently carried out by the Border Patrol, inspections, investigations, detention and deportation, and intelligence programs.

In each bureau, the bill would also establish six offices: 1) chief budget officer; 2) general counsel; 3) policy and strategy; 4) congressional, intergovernmental, and public affairs; 5) community liaison; and 6) statistics. In addition, H.R. 2528 would require the Attorney General to report to the House and Senate appropriations committees on the "proposed division and transfer of funds, including unexpended funds, appropriations, and fees." Further, the Attorney General would be required to report to the committees on the feasibility of transferring INS's detention operations to the Bureau of Prisons.

The INS Reform and Border Security Act of 1999 (S. 1563) was introduced on August 5, 1999 by Senator Abraham, the Chairman of the Senate Judiciary's immigration subcommittee, and cosponsored by Senator Kennedy, the ranking minority member. The Subcommittee held a hearing on this proposal on September 23, 1999. This bill would reconstitute and elevate INS as an Immigration Affairs Agency at the Department of Justice. Like H.R. 2528, it would create two bureaus: one for immigration services, the other for enforcement. Unlike H.R. 2528, however, the Associate Attorney General would statutorily assume all of the Attorney General's immigration responsibilities. In addition, the Associate Attorney General for Immigration Affairs would be responsible for providing resources to both bureaus, coordinating shared resources and records/database management, and formulating policy and planning.

The Bureau of Immigration Service and Adjudication would be responsible for processing visa petitions, naturalization applications, asylum/refugee applications, parole/detention of asylum applicants, and service center operations. The bill would also establish an ombudsman's office in the service bureau. The Bureau of Enforcement and Border Affairs would be responsible for Border Patrol, detention, deportation, intelligence, and investigation programs. Unlike H.R. 2528, the inspections program, because of its service and enforcement function, would be housed in the Associate Attorney General's office.

The Immigration Restructuring and Accountability Act of 1999 (H.R. 2680) was introduced by Representative Jackson-Lee, the ranking minority member on the House Judiciary's immigration subcommittee, on August 3, 1999. This bill would restructure INS and, in its place, create a National Immigration Bureau at the Department of Justice. This new agency would be headed by a Director who would be responsible for all functions performed currently by the INS Commissioner. Within the Director's office, there would be established an office of community liaison to resolve issues that cannot be resolved through ordinary administrative channels. Within this new bureau, there would be four offices: 1) adjudications, 2) enforcement, 3) prehearing services, and 4) shared services.

The office of immigration adjudications would be organized into the following divisions: 1) adjudications; 2) refugees, asylum, parole, and humanitarian affairs; 3) and 3) community relations. Under H.R. 2680, the Inspections program would be placed under the adjudications division. The office of immigration enforcement would be organized into the following divisions: 1) Border Patrol; 2) removal; 3) intelligence and investigations; and 4) community relations. The office of prehearing services would be organized into the following divisions: 1) detention, 2) alternatives to detention, 3) prehearing services, and 4) community relations. The creation of an office of prehearing services would isolate the detention function and mandate that prehearing services be standardized and prioritized.

Issues for Congress

Would dismantling or restructuring the agency by separating the service and enforcement functions increase managerial and budget efficiencies? Or would it reverse progress already achieved through increased funding and reform initiatives?

On the one hand, by restructuring, lessons learned through efforts to reform the asylum and naturalization processes could be transferred to other immigration benefit adjudications. On the other hand, restructuring the agency at the field level, by dismantling the current structure of regions, districts, and sectors, could shift energies and resources from other useful initiatives (e.g., the direct mail program and records centralization) and, in the final outcome, could decrease managerial and budget efficiencies.

Would separating INS enforcement programs from service programs result in a "rump" service program that would be ineffectual and underfunded?

If separated today, the proposed immigrant services branch or bureau would be comparatively small in terms of its budget and personnel compared to the enforcement branch. Today, the Adjudications and Nationality program, INS's core service program, is funded almost entirely through examination fees. With large pending caseloads in key adjudications, INS is currently processing claims that were received several years ago with fees being collected for new claims that may not be adjudicated for several years in the future. As a result, providing adequate funding for immigration services and for the more efficient management of fee receipts is likely to be an ongoing issue.

INS reports that it has streamlined budget execution according to recommendations made by NAPA. According to GAO, however, INS failed to anticipate through its budget planning and formulation that the agency's discretionary spending for day-to-day operations would be significantly lower in FY1999 than in the previous year due to fully hiring all funded positions. Consequently, the agency has been under financial stress during FY1999, in spite of budget increases. If INS attempts to restructure before adequately reforming its budget process, an already cumbersome and antiquated financial management system could exacerbate inefficiencies and problems, rather than streamline business processes and increase productivity. On the other hand, if the agency were dismantled or restructured, the bureaus' smaller, individual budgets might be more manageable.

Footnotes

1. ^(back)The creation of the Commission on Immigration Reform was mandated by the Immigration Act of 1990 (P.L. 101-649; 104 Stat. 5001) to examine legal immigration policy.

2. ^(back)U.S. General Accounting Office, INS Management: Follow-up on Selected Problems, GGD-97-132 (Washington, July 1997).

3. ^(back)National Academy of Public Administration, Budgeting for Performance: Strategy, Flexibility, and Accountability to Meet a Demanding Mission (Washington, January 1997).

4. ^(back)U.S. Immigration and Naturalization Service, A Framework for Change: The Immigration and Naturalization Service (Washington, April 1998).

5. ^(back)The Executive Office for Immigration Review (EOIR) is the agency in DOJ that oversees administrative hearings on individual immigration cases, immigration court proceedings, and appellate reviews.