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The White House’s plan to fold the Immigration and Naturalization Service into a new federal agency dedicated to protecting the nation’s internal security has some wondering if the INS could lose more than its name in the process. Under the plan articulated by President George W. Bush on Thursday, a newly established Department of Homeland Security would absorb the functions of the INS, the Customs Service, the Border Patrol, the Secret Service and several other federal administrative entities. Tom Ridge, currently Bush’s adviser on homeland security issues, is considered the front-runner to lead the new Cabinet-level department meant to provide a coordinated approach to combat domestic terrorist threats. Many of the specific details of the initiative have yet to be worked out by the Bush administration, and an actual piece of legislation available for Congress to digest is not expected for several weeks. It is clear, however, that the White House has tied border security directly to the performance of the long-beleaguered immigration agency. “Employees of this new agency will come to work every morning knowing their most important job is to protect their fellow citizens,” Bush said on June 6. For the INS, the move is part of a continuing evolution of focus, if not function. Since the Sept. 11 attacks, the government has used federal immigration laws to detain potential terrorist suspects indefinitely and deport others. At the same time, the agency has been harshly criticized for failing to discover that some of the Sept. 11 hijackers remained in the United States with expired visas. Now, with the president’s plan, the agency that historically has been most closely identified with issuing visas and monitoring the employment of immigrants has officially become a vanguard in the government’s anti-terrorism campaign. LEAVING JUSTICE The plan also means that the INS would be severed from the oversight functions of the Justice Department — an action viewed by some both inside and outside the department as something of a blessing, considering the agency’s interminable struggle with reducing backlogs and halting the flow of illegal immigration from Mexico. “I strongly suspect that the mixed emotions at Justice will include an element of relief,” says a former Justice Department official. Still, David Martin, a former general counsel to the INS, cautions that a split from Justice could make the administration’s war on terror more difficult, particularly in coordinating efforts with the Federal Bureau of Investigation. “It’s a bit of a disadvantage not to work with the rest of the DOJ machinery,” says Martin, a law professor at the University of Virginia. “The complications will come in dealing with criminal investigations.” Martin also laments that the positive work the INS does by granting citizenship and legal residency to thousands of hard-working immigrants could be lost amidst the changeover to a border security agency. In 2001, for example, the agency received 502,000 naturalization petitions and 66,000 petitions for asylum. “It’s real important not to have that vanish from sight,” Martin says. Immigration advocates, too, express concern about the message the INS reshuffling sends. Jeanne Butterfield, president of the American Immigration Lawyers Association, calls it a “paradigm shift” and says that “immigration is now primarily a matter of internal security rather than a phenomenon that strengthens our country.” And Michael Maggio of Maggio & Kattar, a longtime Washington, D.C., immigration lawyer, says “the idea that applying for U.S. citizenship somehow becomes a homeland security matter just has a bad taste to it.” It’s something, Maggio says, that could come with a cost to American business. If catching illegal immigrants and patrolling the borders becomes the agency’s focus to the detriment of processing work visas and citizenship applications, companies with foreign employees could suffer, he says. “It is obviously trouble for immigrants, and businesses that employ immigrants, and U.S. citizens that have immigrant family members,” says Maggio. But to those fighting to limit immigration, morphing the INS into a new agency that thinks security first and service second means the administration is finally taking the right approach. “Immigration and border enforcement are likely to get the attention they deserve precisely because they [would be] separate from other law enforcement agencies,” says Mark Krikorian, director of the Center for Immigration Studies. “The fact remains that INS’ emphasis is now going to be enforcement. That is perfectly appropriate given the type of war we are in.” It remains unclear exactly what shape the new INS will take, once it is re-engineered and re-named the more utilitarian “Immigration Services” component of the Homeland Security Department’s Border and Transportation Security Division. A lingering issue involves the legal apparatus that adjudicates immigration and asylum cases, which is an independent entity separate from the INS. Administration officials couldn’t confirm on June 7 whether the Executive Office of Immigration Review, which oversees both trial and appellate immigration judges, will be moved from the Justice Department. Martin, the former INS counsel, believes that keeping the judges under Justice’s control is a bad idea. “Managerial decisions about judges have to be made along with decisions about the best use of immigration resources,” Martin says. But taking immigration judges over to the new security agency presents its own problems. Right now, Attorney General John Ashcroft selects judges and sometimes acts as the final arbiter on immigration appeals. A new homeland security department, one that would not be necessarily headed by a lawyer, could provide a radically different take on that process. And placing the two components in different agencies could provide the distance that many have been calling for between the INS, which prosecutes immigration cases, and the judges who oversee those cases. If that occurs, it would leave Ashcroft with a strong say in immigration affairs, which concerns some immigration advocates. Earlier this year, Ashcroft announced a “streamlining” of the Board of Immigration Appeals, cutting the number of judges and toughening the standards for filing and resolving appeals. Another question that remains is the fate of several competing plans to reorganize the INS. A number of pending proposals from Congress and the administration would carve a more distinct separation of the agency’s law enforcement and service functions. The administration says it will pursue that goal and that both can be achieved simultaneously. “It certainly can complement this plan nicely,” says Jeff Lungren, spokesman for the House Judiciary Committee. “The INS needs to be restructured whether it’s part of the Justice Department or the new Department of Homeland Security.”

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