INS Reorganization Under the Homeland Security Act of 2002: Effective Dates and Dual Roles

INS Reorganization Under the Homeland Security Act of 2002: Effective Dates and Dual Roles

Order Code RS21410
February 4, 2003
CRS Report for Congress
Received through the CRS Web
INS Reorganization Under the Homeland
Security Act of 2002: Effective Dates and
Dual Roles
Stephen R. Viña
Legislative Attorney
American Law Division
Summary
As a current agency within the US Department of Justice, the Immigration and
Naturalization Service (INS) provides immigration and citizenship services as well as
law enforcement functions. Under the Homeland Security Act of 2002, INS will be
abolished upon the completion of all transfers from INS to the Department of Homeland
Security (DHS). Under President Bush’s Reorganization Plans and in accordance with
the Act, the dual roles of INS will be transferred on March 1, 2003 and will form three
distinct bureaus within the DHS. This report discusses the status of the dual roles
provided by INS upon the completion of the transfer of functions from INS to the DHS.
This report also addresses the effective dates of the Act and their relation to INS and to
the Reorganization Plans submitted by President Bush. This report will be updated in
response to relevant legislative or executive activity.
The Homeland Security Act of 2002,1 created the Department of Homeland Security
(DHS) by combining existing agencies with new programs in a single organizational
structure.2 One of the more highly debated issues during the formation of the DHS, was
the restructuring of the Immigration and Naturalization Service (INS).3 Because INS
1 P.L. 107-296 [hereinafter “Act”].
2 At this time it is unclear to what extent the Attorney General’s ultimate authority under the
Immigration and Naturalization Act of 1952, as amended (INA; 8 U.S.C. 1101 et seq.) has
technically been transferred to the DHS or its officers. It is anticipated that the Attorney
General’s authorities under the INA will soon reside in the officers of the DHS after the Secretary
submits recommendations for conforming the INA through an implementation plan. See P.L.
107-296, §477(c)(2)(F)). This report does not address the interplay or transfer of authority
between INS and the Department of State in the administration of visa issuance or consular
functions. See id. at §§428, 429.
3 Indeed, several different proposals for the restructuring of INS were offered in Congress. For
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provides immigration and citizenship services as well as law enforcement functions, many
in Congress were concerned with the transfer of INS programs that do not have homeland
security-related roles. Nevertheless, after much debate, the President signed into law on
November 25, 2002, a version of the Homeland Security Act that requires INS’s dual
roles be transferred to the DHS.4 The transfer of INS’s dual roles will result in the
abolishment of INS; moreover, the Act explicitly prohibits the recombination of the two
bureaus into a single agency or the consolidation of functions or organizational units of
the two bureaus with each other.5
Effective Dates in General
The Act became effective 60 days after the date of enactment (i.e., Jan. 24, 2003)6
and requires the President to submit a reorganization plan no later than 60 days after
enactment.7 By allowing the President to submit a reorganization plan, Congress has
provided the Executive additional flexibility and discretion to organize the DHS to
promote “‘economy and efficiency’ as well as his political priorities.”8 President Bush
submitted his Reorganization Plan on November 25, 2002,9 and submitted a proposal to
3 (...continued)
example, S.Amdt. 4471 to H.R. 5005 would have located all of INS in a DHS Directorate of
Immigration Affairs. For a thorough analysis of INS restructuring options see CRS Report
RL31560, Homeland Security Proposals: Issues Regarding Transfer of Immigration Agencies
and Functions, and CRS Report RL31388, Immigration and Naturalization Service;
Restructuring Proposals in the 107th Congress.
4 See P.L. 107-296, §451 (transfer of INS’s immigration and citizenship services), §441 (transfer
of INS’s enforcement functions). Under the Act, the Executive Office for Immigration Review
(EOIR) remains in the Department of Justice and is subject to the direction and regulation of the
Attorney General. See id. at §1101.
5 Id. at §471(a), (b).
6 Id. at §4.
7 Id. at §1502 (“. . . the President shall transmit to the appropriate congressional committees a
reorganization plan regarding the following: (1) The transfer of agencies, personnel, assets, and
obligations to the Department pursuant to the Act. (2) Any consolidation, reorganization, or
streamlining of agencies transferred to the Department pursuant to this Act.”).
8 See CRS Report RL30876, The President’s Reorganization Authority: Review and Analysis.
Generally, the transfer of statutorily vested functions or programs may only be accomplished
pursuant to congressional authorization unless Congress has specifically provided authority for
another party to reorganize. The now dormant Reorganization Act of 1984 was the last
congressional grant of reorganization authority to a President. See 5 U.S.C. §901 et seq..
Reorganization authority under the 1984 Act lapsed on December 31, 1984, and has not been
renewed. Id. at §905(b). Although President Bush is not currently operating under a
Reorganization Act, section 1502(d)(3) of the Act specifically states that the reorganization
authority provided for in the Act applies, notwithstanding 5 U.S.C. §905(b) (sunset provision
from the Reorganization Act of 1984).
9 See [http://www.whitehouse.gov/news/releases/2002/11/reorganization_plan.pdf].
Additionally, section 872(a) of the Act authorizes the Secretary of the DHS to reorganize the
Department provided the Secretary does not abolish any organizational unit or function expressly
established either by the Act or another statute in the process. The Secretary may reorganize the
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modify it on January 30, 2003.10 The President retains the authority under section 1502(c)
to modify the plan until it otherwise becomes effective in accordance with section 1502(d)
of the Act. Section 1502(d) allows the Reorganization Plan to become effective on the
earlier of either the date specified in the Plan (except that it can not be earlier than 90 days
after the date the President submitted the Plan to Congress) or the end of the transition
period.11 The transition period is the twelve month period beginning on the effective date
of the Act.12 Under the Reorganization Plan, the majority of transfers take place on March
1, 2003 and are completed on June 1, 2003.13
The Transfer of INS’s Dual Roles Pursuant to President Bush’s
November 25, 2002, DHS Reorganization Plan
INS Enforcement. Under the Act, the Under Secretary for the Directorate of
Border and Transportation Security is responsible for INS’s enforcement functions as well
as other entities that may play a role at the border.14 Section 441 of the Act, through the
President’s Reorganization authority under the Act, transfers the enforcement functions,
personnel, assets, and liabilities possessed by the Commissioner of INS to the Under
Secretary for Border and Transportation Security. Pursuant to the Act, INS’s enforcement
functions will be grouped into the Bureau of Border Security, and include: (1) the Border
Patrol, (2) the Detention and Removal program, (3) the Intelligence program, (4) the
Investigations program, and (5) the Inspections program.15 The Bureau of Border Security
will be headed by the Assistant Secretary of the Bureau of Border Security.16 Pursuant
to President Bush’s Reorganization Plan, the transfer of INS functions is to take place on
March 1, 2003. Consequently, the Bureau of Border Security (generally the former
enforcement arm of INS) will become legally operational on March 1, 2003.
INS Immigration and Citizenship. INS’s immigration and citizenship services
are to be transferred primarily to the DHS’s newly created Bureau of Citizenship and
Immigration Services, which is administratively separate from the Directorate of Border
9 (...continued)
DHS pursuant to section 1502 or 60 days after giving notice of such action to Congress. See P.L.
107-296, §872(a)(1), (2).
10 See Border Reorganization Fact Sheet [http://www.dhs.gov/dhspublic/display?content=414].
11 P.L. 107-296, §1502(d).
12 Id. at §1502(2).
13 See [http://www.whitehouse.gov/news/releases/2002/11/reorganization_plan.pdf]. President
Bush’s Reorganization Plan states that all incidental transfers associated with the functions
transferred by the Act will be completed by September 30, 2003, pursuant to section 1516 of the
Act.
14 Other agencies include: (1) the United States Custom Service; (2) the Transportation Security
Administration; (3) the Federal Protective Service (FPS); (4) the Federal Law Enforcement
Training Center (FLETC); and (5) the Office for Domestic Preparedness. See P.L. 107-296,
§403.
15 Id. at §441.
16 Id. at §442(a)(2).

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and Transportation Security.17 The Bureau of Citizenship and Immigration Services is to
be headed by a director who reports directly to DHS’s Deputy Secretary.18 The Director
of Citizenship and Immigration Services, in accordance with the instructions provided by
the President’s Reorganization Plan, is to receive the functions, personnel, infrastructure,
and funding provided to the Commissioner of INS for the following programs: (1)
adjudications of immigrant visa petitions; (2) adjudications of naturalization petitions; (3)
adjudications of asylum and refugee applications; (4) adjudications performed at service
centers; and (5) all other adjudications performed by the INS immediately before the
effective transfer date.19 Additionally, any other Federal law, executive order, rule,
regulation, or delegation of authority that pertains to an immigration and citizenship
function transferred to the Director but still otherwise refers to the head of another
component is “deemed” to refer to the Director of Citizenship and Immigration Services.20
Furthermore, any official responsible for a transferred INS function in the Bureau of
Citizenship and Immigration Services may use the same authority to perform that function
that a person may have had who was responsible for that function before the transfer took
place.21
According to section 455 of the Act, the Bureau of Citizenship and Immigration
Services is to become effective on the same date the Bureau of Border Security becomes
effective. President Bush’s Reorganization Plan calls for the transfer of all INS functions
on March 1, 2003. Consequently, the Bureau of Citizenship and Immigration Services
will also become legally effective on March 1, 2003. This is the same date that the
enforcement functions of INS will be transferred to the Bureau of Border Security.
Presuming there are no modifications to the President’s Reorganization Plan that change
these dates, INS will be legally abolished on March 1, 2003.
DHS Reorganization as modified on January 30, 2003
In an effort to “enhance efficiencies and create greater accountability in one seamless
border service” President Bush submitted to Congress a modification to his November 25,
2002 DHS Reorganization Plan that effected the transfer of INS’s dual roles.22 The
President has the authority pursuant to section 1502(c) of the Act to modify the provisions
relating to INS functions in his November 25, 2002, DHS Reorganization plan until
17 See id. at §451. All functions under the immigration laws of the U.S. with respect to the care
of unaccompanied alien children vested in the Commissioner of INS are to be transferred to the
Director of the Office of Refugee Resettlement in the Department of Health and Human Services.
Id. at §462. For information on unaccompanied alien children, see CRS Report RS21389,
Immigration: Unaccompanied Alien Children.
18 Id. at §451(a)(2)(A).
19 Id. at §451(b). The Act also specifically authorizes the transfer of appropriations and personnel
from the Department of Justice for those functions associated with the newly created Bureau of
Citizenship and Immigration Services. See id. at §456(b)(2).
20 Id. at §456(a)(1). Furthermore, such component is deemed to refer to the Bureau of Citizenship
and Immigration Services. Id. at §451(b)(2).
21 Id. at §456(b)(1).
22 See Border Reorganization Fact Sheet [http://www.dhs.gov/dhspublic/display?content=414].

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February 28, 2003.23 The Modification only makes changes within the Border and
Transportation Security Directorate, thus INS’s Immigration and Citizenship functions
discussed above remain the same, as does every other provision of the November 25,
2002 Reorganization Plan.
INS Enforcement. Under the modified reorganization plan, the DHS will bring
together the various border agencies into the Bureau of Customs and Border Protection.
Specifically, this new bureau will be comprised of the resources and missions relating to
borders and ports of entry of the Customs Service, INS’s Border Patrol and inspections
program, and the US Department of Agriculture’s Agricultural Quarantine Inspection
program. The Bureau of Customs and Border Protection will be headed by the
Commissioner of Customs, but will still report to the Under Secretary of Border and
Transportation Security.24
Separate from “border” enforcement, the Bureau of Border Security will be renamed
the Bureau of Immigration and Customs. It is anticipated this new bureau will enhance
“interior” security while promoting information sharing with the FBI and developing
stronger relationships with the US Attorneys’ Office. This new bureau will bring together
the interior enforcement and investigation arms of the Customs Service, with INS’s
detention and removal, intelligence, and investigation programs. The new Bureau of
Immigration and Customs will also contain the Federal Protective Service. As required
by section 442(a)(2) of the Act, the Bureau of Immigration and Customs will be headed
by an Assistant Secretary who will report directly to the Undersecretary for Border and
Transportation Security. March 1, 2003, is still the implementation date for the new
bureaus under the modified Reorganization Plan.
Effective Calendar Dates and Transfer Authority
The following table details the calendar dates that correspond to the Act’s transfer
authority presuming there are no modifications to the President’s Reorganization Plan that
change the effective dates. The table also address those dates that correspond to INS’s
transfer to the DHS under the President’s Reorganization Plans.
23 Section 1502(d) designates the effective date for an agency the earlier of the date specified in
the plan or the end of the transition period. Since the Reorganization Plan calls for the transfer
of INS on March 1, 2003, the end of the transition period (Jan. 23, 2004) is not an issue and all
modifications in the Reorganization Plan relating to INS functions must occur before that date.
24 See Border Reorganization Fact Sheet [http://www.dhs.gov/dhspublic/display?content=414].

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Date
Language
Authority
November 25, 2002
The Homeland Security Act of 2002
P.L. 107-296
(signed into law)
November 25, 2002
President’s Department of Homeland
§1501
(issued)
Security Reorganization Plan
Effective on
This Act shall take effect 60 days after the
§4
January 24, 2003
date of enactment
January 24, 2003
The term transition period means the 12-
§1501(2)
thru January 23,
month period beginning on the effective date
2004
of this Act
Plan must be
Not later than 60 days after the date of the
§1502(a)
submitted by
enactment of this Act, the President shall
January 24, 2003
transmit to the appropriate congressional
committees a reorganization plan . . .
Transfers by the
The Reorganization Plan shall become
§1502(d)
President must
effective for an agency on the earlier of-
be after
(A) the date specified in the plan, except that
February 23, 2003
such date may not be earlier than 90 days
after the date the President has transmitted
the reorganization plan to the appropriate
______________
congressional committees or
Transfers by the
(B) the end of the transition period
President must be
no later than
January 23, 2004
March 1, 2003
Transfer of INS to DHS pursuant to the
§1502
Reorganization Plan
President may
The President may modify or revise any part
§1502(c)
modify INS
of the plan until that part of the plan
provisions until
becomes effective in accordance with
February 28, 2003
subsection (d)

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