H.R. 5710 – THE HOMELAND SECURITY ACT OF 2002
Section-by-Section Summary of Immigration Provisions
TITLE I- Department of Homeland Security
Section 101 – Executive Department; Mission.
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The primary mission of the Department is to-
- Prevent terrorist attacks within the United States;
- Reduce the vulnerability of the United States to terrorism;
- Minimize the damage, and assist in the recovery, from terrorist attacks that do occur within the United States;
- Carry out all functions of entities transferred to the Department, including by acting as a focal point regarding natural and manmade crises and emergency planning;
- Ensure that the functions of the agencies and subdivisions within the Department that are not related directly to securing the homeland are not diminished or neglected except by a specific explicit Act of Congress;
- Ensure that the overall economic security of the United States is not diminished by efforts, activities, and programs aimed at securing the homeland; and
- Monitor connections between illegal drug trafficking and terrorism, coordinate efforts to sever such connections, and otherwise contribute to efforts to interdict illegal drug trafficking
Section 102 – Secretary; Functions
- Establishes the position of Secretary of Homeland Security as the head of the Department of Homeland Security and sets forth the functions of that office.
- Establishes the position of Special Assistant to the Secretary who will be responsible for advising the Secretary on the impact of the Department’s policies, regulations and actions on the private sector; and creating private sector advisory councils to advise the Secretary on homeland security policies that affect industry and associations.
TITLE IV- Directorate of Border and Transportation Security
SUBTITLE A- Under Secretary for Border and Transportation Security
Section 401 – Under Secretary for Border and Transportation Security
- Establishes the position of Under Secretary for Border and Transportation Security to head the Directorate of Border and transportation Security.
Section 402 – Responsibilities
Establishes that the Secretary, acting through the Under Secretary, will be responsible for the following:
- Preventing the entry of terrorists and the instruments of terrorism into the United States;
- Securing the borders, territorial waters, ports, terminals, waterways, and air, land, and sea transportation systems of the United States, including managing and coordinating those functions transferred to the Department at ports of entry;
- Carrying out the immigration enforcement functions vested by statute in, or performed by, the Commissioner of Immigration and Naturalization (or any officer, employee, or component of the Immigration and Naturalization Service) immediately before the date on which the transfer of the immigration functions, as set forth under § 441, takes effect;
- Establishing and administering rules governing the granting of visas or other forms of permission, including parole, to enter the United States to individuals who are not a citizen or an alien lawfully admitted for permanent residence in the United States;
- Establishing national immigration enforcement policies and priorities;
- Except as otherwise provided, administering the customs laws of the United States;
- Conducting the inspection and related administrative functions of the Department of Agriculture transferred to the Secretary of Homeland Security; · In carrying out the foregoing responsibilities, ensuring the speedy, orderly, and efficient flow of lawful traffic and commerce.
SUBTITLE C – Miscellaneous Provisions
Sec. 428 – Visa Issuance
- The Secretary of Homeland Security, acting through the Secretary of State, is vested exclusively with all authorities to administer and enforce all laws, and to issue regulations relating to the functions of consular officers in the granting or refusal of visas, and shall have the authority to develop programs of homeland security training for consular officers. The Secretary of Homeland Security shall not have authority to alter of reverse the decision of a consular officer to refuse a visa.
- The Secretary of State is authorized to direct a consular officer to refuse a visa to an alien if the Secretary of State deems such refusal necessary or advisable in the foreign policy or security interests of the United States. The Secretary of State shall continue to retain authority under specific areas of the INA. [101(a)(15)(A); 204(d)(2); 212(a)(3)(B)(i)(IV)(bb); 212(a)(3)(B)(i)(VI); 212(a)(3)(B)(vi)(II); 212(a)(3)(C); 212(a)(10)(C); 212(f); 219(a); 237(a)(4)(C)].
- The Secretary of Homeland Security is authorized to assign employees of the Department of Homeland Security to each diplomatic and consular post at which visas are issued, unless the Secretary determines that such an assignment would not promote homeland security.
- Employees of the Department who are assigned to diplomatic or consular posts shall perform the following functions:
(A) Provide expert advice and training to consular officers regarding specific security threats relating to the adjudication of individual visa applications or classes of applications;
(B) Review any such applications, either on the initiative of the employee of the Department or upon request by a consular officer or other person charged with adjudicating such application;
(C) Conduct investigations with respect to consular matters under the jurisdiction of the Secretary of Homeland Security.
- The Secretary shall develop performance standards for the Secretary of State to evaluate, in consultation with the Secretary and as deemed appropriate by the Secretary, the performance of consular officers in the processing and adjudication of applications for visas.
- When appropriate, employees of the Department may be permanently assigned to diplomatic or consular posts. If the Secretary so directs, such employees shall participate in the terrorist lookout committee established under section 304 of the Enhanced Border Security and Visa Entry Reform Act of 2002.
- The Secretary shall ensure that any employee of the Department assigned to these posts shall be provided the necessary training, including training in foreign languages, interview techniques, and fraud detection techniques, and other appropriate areas of study.
- This section shall take effect on the earlier of the date on which the President publishes notice in the Federal Register that Congress has received the memorandum of understanding between the Secretary and the Secretary of State governing implementation of this section, or one year after the enactment of this Act.
Section 429 – Information on Visa Denial Required to Be Entered Into Electronic Data System
- Whenever a consular officer denies a visa to an applicant, the fact of the denial, the basis for such denial, and the name of the applicant shall be entered into the interoperable electronic data system implemented under section 202 of the Enhanced Border Security and Visa Entry Reform Act of 2002.
- For any person who has been denied a visa, no subsequent visa may be issued to the person unless the consular officer considering it has reviewed the information concerning the person placed in the interoperable data system, has indicated on the person’s application that the information has been reviewed, and has stated for the record why the visa is being issued or a waiver of visa ineligibility recommended in spite of that information. The person may not be admitted to the United States without a visa issued in accordance with these procedures.
SUBTITLE D- Immigration Enforcement Functions
Section 441 – Transfer of Functions to Under Secretary for Border and Transportation Security.
- Transfers the following five programs from the Commissioner of the INS to the Under Secretary for Border and Transportation Security: Border Patrol; detention and removal; intelligence; investigations; inspections. Included in the transfer are all the functions performed by these programs immediately prior to the transfer, along with all personnel, assets and liabilities.
Section 442 – Establishment of the Bureau of Border Security.
- Establishes the Bureau of Border Security within the Department of Homeland Security
- Establishes the position of Assistant Secretary of the Bureau of Border Security. The position will head the Bureau and will report directly to the Under Secretary for Border and Transportation Security:
(A) Qualifications for the position: at least five years of experience in both law enforcement and management experience
(B) Duties: advise the Under Secretary of any policy or operation that may affect the Bureau of Citizenship and Immigration; establish policies and oversee the administration of the immigration functions that were transferred to the Under Secretary of Border and Transportation under Section 441 and then delegated to the Assistant Secretary, or the functions that were vested in the Assistant Secretary by law (Note: This provision seems to indicate that the Under Secretary does not have to transfer the immigration provisions into this Bureau.)
(C) Responsible for administering SEVIS and other programs established under §641 of IIRAIRA to collect information relating to foreign students and other exchange program participants and use that information to carry out the enforcement functions of the Bureau
(D) Design and implement a managerial rotation program where managerial and supervisory staff will gain experience in all the major functions of the Bureau and work in at least one local office. Two years after the transfer of the immigration functions, the Secretary will submit a report to Congress on this program
- Establishes the position of Chief of Policy and Strategy for the Bureau of Border Security. Responsibilities include: consulting with personnel in local offices; researching policy issues; analyzing and making policy recommendations on immigration enforcement issues; and coordinating immigration policy with Chief of Policy and Strategy for the Bureau of Citizenship and Immigration
- Establishes the position of Legal Advisor to the Assistant Secretary of the Bureau of Border Security. This position will provide legal advice to the Assistant Secretary and will represent the Bureau in all exclusion, deportation, and removal proceedings before the EOIR.
Section 443 – Professional Responsibility and Quality Review
- Provides that the Under Secretary for Border and Transportation Security is responsible for the following: investigations of misconduct, corruption and fraud involving Bureau personnel, not including those subject to the Inspector General’s investigations; inspections of operations and assessment of the quality of the Bureau’s operations and the operations of each of its components; analysis of the management of the Bureau
Section 444 – Employee Discipline
- Establishes that the Under Secretary for Border and Transportation Security may discipline and terminate Bureau employees, who willfully deceive Congress or agency leadership, pursuant to the policies and procedures of the FBI.
Section 445 – Report on Improving Enforcement Functions
- Mandates a report by the Secretary detailing how the Bureau will enforce the enforcement provisions of the INA. The report is due to the House and Senate Committees on Appropriations and Judiciary one year after the Secretary is sworn in to office
- Provides that the Secretary shall consult with the following to determine the most effective way to conduct enforcement operations: Attorney General; Secretary of State; Director of the FBI; Secretary of Labor; Secretary of the Treasury; Commissioner of Social Security; Director of EOIR; heads of States and local law enforcement agencies
Section 446 – Sense of Congress Regarding Construction of Fencing Near San Diego, California
- Completing the 14-mile border fence project set forth in §102(b) of IIRAIRA should be a priority
SUBTITLE E – Citizenship and Immigration Services
Section 451 – Establishment of Bureau of Citizenship and Immigration Services
- Establishes the “Bureau of Citizenship and Immigration Services” to be headed by a Director. The Director will report directly to the Deputy Secretary for Homeland Security, have 5 years management experience, and be paid at the same level as the Assistant Secretary of the Bureau of Border Security.
- The Director is required to meet regularly with an Ombudsman described below
- Within one year of the effective date, the Director shall design and implement a managerial rotation program where supervisors and managers gain experience in all major functions of the bureau and work in at least one field office and one service center.
- Authorizes the Director to institute a pilot program to eliminate backlogs in the processing of immigrant benefit applications.
- Transfers the following functions from the INS commissioner to the Director:
1. Adjudications of immigrant visa petitions;
2. Adjudications of naturalization petitions;
3. Adjudications of asylum and refugee applications;
4. Adjudications performed at service centers;
5. All other adjudications performed by the Immigration and Naturalization Service immediately before the effective date specified in section 455.
- Establishes a position of Chief of Policy and Strategy for the Bureau who will make policy recommendations on service issues and coordinate with the Policy Chief of the Bureau of Border Security.
- Establishes a position of Legal Advisor to the Director who will give legal advice and represent the Bureau in visa petition appeal proceedings before the EOIR.
Section 452 – Citizenship and Immigration Services Ombudsman
- Establishes a position of Ombudsman who will report directly to the Deputy Secretary and who shall identify service problem areas, report these problems, propose changes and monitor the local offices of the Ombudsman.
- Requires the Ombudsman to have a background in customer service and immigration law.
Section 459 – Report on Improving Immigration Services
- Requires the Secretary to submit a plan to the House and Senate, no later than one year after enactment, on how the Bureau will complete adjudications efficiently and fairly.
Section 460 – Report on Responding to Fluctuating Needs
- Requires the Attorney General to submit to Congress a report on any changes in law needed to ensure a prompt response to changes in immigration service needs.
Section 461 – Application of Internet-Based Technologies
- Requires the Secretary to establish an Internet-based system that will allow persons access to online immigration services information.
Section 462 – Children’s Affairs
- Authorizes the Director of the Office of Refugee Resettlement (ORR) of the Department of Health and Human Services to take over the functions of the immigrations laws formerly vested in statute, and performed by the commissioner, with respect to unaccompanied alien children.
- Provides that the ORR Director is responsible for, among others, the following:
(A) Developing a plan to be submitted to Congress on how to ensure that qualified and independent legal counsel is timely appointed to represent the interests of each such child, “consistent with the law regarding appointment of counsel that is in effect on the date of the enactment of this Act”;
(B) Compiling, updating, and publishing at least annually a state-by-state list of professionals or other entities qualified to provide guardian and attorney representation services for unaccompanied alien children.
- Requires the ORR Director to coordinate with other agencies to ensure that unaccompanied children are likely to appear for their hearings and are protected from dangerous elements. The section also states that the Director shall not release such children upon their own recognizance.
- Encourages the Director of ORR to use the refugee children foster care system
- Transfers the Department of Justice personnel and funding currently allocated to the functions of caring for unaccompanied alien children to the Director of ORR
SUBTITLE F- General Immigration Provisions
Section 471 – Abolishment of INS
- Abolishes the INS
- Prohibits the Secretary from using the reorganization authority given to him under §1502 of this Act to recombine the two immigration Bureaus into a single agency, or otherwise combine, join or consolidate functions or units of the two bureaus with each other · Permits the reorganization of the functions within a single Bureau
Section 472. Voluntary Separation Incentive Payments
- Establishes the authority and procedures by which the Attorney General and Secretary may make voluntary separation incentive payments to employees to the extent necessary to carry out their restructuring plan
Section 473 – Authority to Conduct a Demonstration Project Relating to Disciplinary Action
- Establishes the authority and procedures by which the Attorney General and Secretary may conduct demonstration projects within the first 5 years after the date of enactment of this Act to determine whether changes in the employee disciplining policies would result in improved personnel management
Section 475 – Director of Shared Services
- Creates the position of Director of Shared Services within the Office of Deputy Secretary
- Makes the position responsible for the coordination of resources for the two immigration Bureaus, including: information resources management; records and file management; and forms management
Section 476 – Separation of Funding
- Establishes separate accounts in the U.S. Treasury for the two immigration Bureaus · Separates the budget requests for each Bureau
- Establishes that fees for services, applications or benefits shall be deposited into the account of the Bureau that has jurisdiction over the function to which the fee relates
- States that fees are not transferable for purposes that are not set forth in §286 of the INA
Section 477 – Reports and Implementation Plans
- Mandates report by the Secretary on the proposed division and transfer of funds between the two immigration Bureaus. Report shall be submitted 120 days after effective date of this Act to the House and Senate Committees on Appropriations and Judiciary
- Mandates report by the Secretary on the proposed division of personnel between the two immigration Bureaus. Report shall be submitted 120 days after effective date of this Act to the House and Senate Committees on Appropriations and Judiciary
- Mandates an implementation plan by the Secretary on the proposed division and transfer of funds between the two immigration Bureaus. Report shall be submitted 120 days after effective date of this Act and every 6 months thereafter until the end of FY2005 to the House and Senate Committees on Appropriations and Judiciary
- Establishes that the implementation plan should include details regarding the separation of the two immigration Bureaus, including the following: organizational and field structure; chain of command; procedures for interaction between the bureaus; fraud detection and investigation; processing and handling of removal proceedings, including expedited removal and applications for relief from removal; recommendations for comforting amendments to the INA; establishment of a transition team; and methods to phase in costs of dividing the administrative support systems
- Mandates a status report on transition by Comptroller General. The report shall be submitted 18 months after the transfer of the immigration functions to Under Secretary for Border and Transportation Security, as set forth in §441 of this Act, and every 6 months thereafter until the full implementation of Title IV. The report will be submitted to the House and Senate Committees on Appropriations and Judiciary. The report shall contain the following: status of the transfer of immigration functions have been completed; issues that arose as a result of the completed transfers; and identification of any issues that may arise due to any future transfers
- Mandates a study and a report on management by the Comptroller General. The report shall be submitted 4 years after the transfer of the immigration functions to Under Secretary for Border and Transportation Security, as set forth in §441 of this Act. The report will be submitted to the House and Senate Committees on Appropriations and Judiciary and shall contain the following: whether the transfer of functions from the INS to the two Bureaus has improved operations, management, financial administration, and record keeping; and recommendations for further improvements to the two Bureaus · Mandates a report by the Comptroller General on whether the Bureau on Citizenship and Immigration is likely to derive sufficient funds from fees to carry out its functions without appropriated funds. The report shall be submitted 1 year after enactment of this Act to the House and Senate Committees on Appropriations and Judiciary
Section 478 – Immigration Functions
- Mandates a report by the Secretary on the impact the transfers made by this subtitle have had on immigration functions. Repo trshall be submitted 1 year after the enactment of this Act and every year thereafter to the President, the House Committees on the Judiciary and Government Reform, and the Senate Committees on the Judiciary and Government Affairs
- Requires the report to include the following: aggregate number of immigration applications and petitions received and processed; region-by-region statistics on the aggregate number of petitions filed by an alien and denied, disaggregated by category of denial and application of petition type; quantity of backlogged applications that have been processed; the number awaiting processing and a plan for eliminating the backlog; average processing period for immigration applications and petitions, disaggregated by application or petition type; number and type of immigration related grievances filed with the DOJ and the resolution, if any; plans to address grievances and improve services; whether immigration-related fees were used consistent with legal requirements; and whether immigration-related questions were answered effectively and efficiently
- Stating that the sense of Congress regarding immigration services is that the transfer should improve the quality and efficiency of immigration services and that the Secretary should undertake efforts to guarantee that concerns over the quality and efficiency of immigration services are addressed after the effective date
TITLE XI – Department of Justice Divisions
SUBTITLE A – Executive Office for Immigration Review
Section 1101 – Legal Status of EOIR
- Establishes in the Department of Justice, the Executive Office for Immigration Review. The EOIR shall be subject to the direction and regulation of the Attorney General under section 203(g) of the INA, as added by section 1102 of this Act.
Section 1102 – Authorities of the Attorney General
- Amends section 103 of the INA, as amended by this Act, by including a reference to the Attorney General in subsection (a) and by adding a new subsection (g). Under the new subsection (g):
(A) The Attorney General is granted such authorities and functions under the INA and all other laws relating to the immigration and naturalization of aliens as were exercised by the EOIR, or by the Attorney General with respect to the EOIR, “on the day before the effective date of the Immigration Reform, Accountability and Security Enhancement Act of 2002.” [The reference to this act appears to be a drafting error, since it refers to the title of a previous homeland security proposal that has not been passed.]
(B) The Attorney General is authorized “to establish such regulations, prescribe such forms of bond, reports, entries, and other papers, issue such instructions, review such administrative determinations in immigration proceedings, delegate such authority, and perform such other acts as the Attorney General determines to be necessary to carry out this section.”
Section 1103 – Statutory Construction
- Nothing in this Act shall be construed to limit judicial deference to any actions of the Secretary of Homeland Security or the Attorney General.
TITLE XV – Transition
SUBTITLE A – Reorganization Plan
Section 1503 – Review of Congressional Committee Structures
- Directs each House of Congress to review its committee structure in light of the creation of the new Department of Homeland Security.
TITLE XVI – Corrections to Existing Law Relating to Airline Transportation Security
Section 1603 – Allowing United States Citizens and United States Nationals as Screeners
- Amends §44935(e)(2)(A)(ii) of title 49 of the United State Code to allow nationals of the United States to work as airport screeners. The term “national of the United States” is defined by §101(a)(22) of the INA [Note: the text of the Act reads §1101(a)(22) and is a typo that will have to be corrected] as a citizen of the U.S. or a person who is not a citizen but owes permanent allegiance to the United States
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Carl Shusterman served as an INS Trial Attorney (1976-82) before opening a firm specializing exclusively in US immigration law. He is a Certified Specialist in Immigration Law who has testified as an expert witness before the US Senate Immigration Subcommittee. Carl was featured in the February 2018 edition of SuperLawyers Magazine.