Authority to Enforce the Immigration and Nationality Act (INA) in the Wake of the Homeland Security Act: Legal Issues

CRS Report for Congress
Received through t he CRS W e b
Authority t o Enforce the Immigration and
Nationality Act (INA) in the Wake of the Homeland
Security Act : Legal Issues
Stephen R. Viña
Legislative Attorney
American Law Division

Congressional Research Service ˜ The Library of Congress

Authority to E nforce the Immigration and Nationality A ct
(INA) i n the Wake of the Homeland Security Act:
For d ecades, t he adm i n i s t rat i v e aut hori t y t o i n t erpret , i m p l em ent , enforce, and
adjudicat e immigration l aw within the U.S. l ay almost ex cl usivel y with one officer:
the Attorney General. The m ost gene r a l s t a t e m ent o f t his power was found in
§103(a)(1) o f t he Immigration and Nationality Act o f 1952 (INA), t h e s t atute t hat
comprehensivel y regulat es immigration l aw in the United S tates. With the t ransfer
of nearly al l immigration functi o n s t o t he Department of Homeland Security on
March 1 , 2003, however, §103(a ) ( 1 ) o f t he INA h as necessarily required v arious
modifications to cl arify t he respective authorities newly obtai ned by t he Secret ary of
Homeland Security and retained b y t he Attorney General. Accordingl y, §103(a)(1)
of the INA has b een amended t wice, and now places primary respo n s i b i lity for
enforcing and administering immigration l aw in the United S tates with the S ecret ary
of Homeland Security.
Section 103(a)(1) as amended, h o w ev er, s till apparently allows the Attorney
General t o retain a sign i f i c a n t amount of authority to enforce, administer, and
interpret immigration l aw. T he ex tent of the Attorney General’s authority has
become high ly contentious in the wake o f s everal e v ents, i ncluding (1) t he
en forcem en t o f immigration l aws b y t he DOJ ’s Federal Bureau of Investigation even
after all immigration enforcem en t functions were effectivel y rem oved from t he DOJ ,
(2) DOJ ’s issuance of immigration-related regulations on February 28, 2002, the d ay
before the abolishment of t he Im m i gration and Naturalization S ervice, and (3) the
A t t o rney General’s ruling i n In re D-J-, R espondent . C onsiderable cooperation
b etween the t wo Departments i n addition t o congressional m eas ures to cl ari f y t h e
INA, such as the Homeland S ecurity Tec hnical Corrections Act o f 2003 (H.R. 1416),
may be i n order to resolve t he complex ities present ed b y the s ubstantial
transformation. This report will be updated as warranted.

TheINA: Post-HomelandSecurity ................................2
Section 103 of the INA, as amended ...............................3
SharedAuthority ..........................................5
February 28, 2002, Regu lations Promulgated b y t he DOJ ...........7
Conclusion ..................................................8

Authority to Enforce the Immigration and
Nationality Act (INA) in the Wake of the
Homeland Security Act: Legal Issues
For d ecades, t he adm i n i s t rat i v e aut hori t y t o i n t erpret , i m p l em ent , enforce, and
adjudicat e immigration l aw within the U.S. l ay almost ex cl usivel y with one officer:
the Attorney General. The m ost general statemen t o f t h i s power was found in1
§103(a)(1) o f t he Immigration and Nationality Act o f 1952 (INA), the fundamental
statute regulating t he entry and stay of aliens:
The Attorney General shall be charged with the administration and enforcement
of the Act and all other l aws r elating t o t he i mmi gr ation and naturalization of
aliens, e x c e p t i n s ofar as this Act or such other laws relate to the power,
functions, and duties conferred upon the President, t he Secretar y o f S tate, or
diplomatic or consular officers; Provi ded, however, T hat determi na tion a nd
ruling by t he Attorney General with respect to all questions of law s hall be
The enforcement aspect of this power meant t hat t he Attorney General, among
other t hings, had ultim at e responsibility for (1) inspecting i ndividuals seeking t o
enter t he U.S. at ports of entry as t o t heir admissibility under t he INA, (2) p atrolling
land b o r d ers between ports of entry, (3) det ecting aliens who are in the U.S. i n
violation of immigration l aw , ( 4 ) p r o s ecuting actions to remove aliens not entitled
to be in the U.S., (5) detaining aliens not entitled t o be i n t he U.S., and (6) adopting
regulations and ex ercising discretion with respect to thes e forgoing powers. Apart
fro m e n f o r cem en t , t h e s erv i ce as p ect o f t h e A t t o rn ey G e n e ral’s immigration a u t h o r i t y
included, among other t hings, the responsibility to process and determine t he millions
of applicat i ons and petitions submitted annually for v arious preferences within the
immigration s ys tem, fo r various types of humanitarian or discretionary relief from
general s trictures of t he INA, or for nat uralization. Separate still from t he
enforcement and service functions was t he authority of the Attorney General t o
a d j u d i c a t e actions, t o remove aliens, and to hear appeals from v arious types o f
determinations made in the consideration of applications, petitions or other front line
actions to implement the INA.

1 Codified at 8 U.S.C. §1101(a)(1).
2 Codified at 8 U.S.C. §1103(a)(1) ( subsequently amended i n 2002 an d 2003). Direct
presidential authority under t he INA i s q u ite circumscribed, being generally limited t o
emergency powers and setting r efugee admi ssions. T he Secretary of State, t he St ate
Department, and the diplomatic and consular officers t herein had primary authority for
interpreting and implementing provi sions on i ssuing visas overseas, as well as having a role
in implementing certain provisions that implicated sensitive f oreign policy concerns.

In practice, the Attorney General d el egat ed the o ffice’s immigration power,
while retaining final deci sion making power in individual cases. 3 The enforcem ent
and s ervice functions were generally delegated t o t he Commi s s ioner o f t he
Immigration and Naturalizat i o n S ervice (INS). The adjudication function was
delegated t o immigration j udges and t he Board of Immigration Appeal s, which were
locat ed in the Ex ecutive Office of Immigration R eview (EOIR ). EOIR is an entity
within the J ustice Department that was s eparat e from INS.
The INA: Post-Homeland S ecurity
In t h e H om el and S ecuri t y Act o f 2 0 0 2 (HS A ), C ongress real l o cat ed
administrative authority over immi gration l aw. Essentially, t he enforcem ent
functions and t he service functions, respectively, that were being conducted t hrough
the C ommissioner of INS (along with aut horities and personnel attendant to those
functions) were t ransferred t o t wo separate en tities within the n ew Department of
Homeland Security. The functions carried out by EOIR were retained in the J ustice
Department under t he Attorney General.
The HSA effect uated t he transfer of immigration authority in stat utory l anguage
that is separat e a n d a p a rt from t he INA itself: e.g. , “there are transferred from t he
Commissioner of Immigration and Naturalization t o t he Direct or of the B u r eau of
Citizenship and Immigration S ervices the following [imm i gration s ervice-related]
functions, and all p ersonnel, infrastructure, and funding provided t o t he
Commissionerinsupportofsuchfunctions ....”4 In essence, the immigration-
related t ransfers in the HSA are s tated i n t erms of on-the-ground operations – which
resided l argely in the C ommissioner of INS – rather t han t hrough a comprehensive
amendment o f immigration authority as set forth in the INA – which places primary
aut hori t y wi t h t h e A t t o rney General . These t ransfers becam e effect i v e o n M arch 1,
2003. Under t he immigration p rovisions of the Homeland S ecurity Act, authorities
follow functions :“...aFederalofficial to whom afunctionistransferred...may,
for purposes of performing t he function, ex ercise all authorities under any other
provision of law t hat were available with respect t o t h e p erform ance of t h at funct i o n
to the o fficial responsible for t he perform ance o f t h e f unction immediately b efore
[ t ransfer] .”5
A s stated above, b efore t he HSA was passed C ongress vested administr a t i v e
authority over immigration l aw almost ex cl usivel y i n t he office of the Attorney
General. Operationally, m ost o f t his authori t y was d el egat ed t o , and carri ed out by,
the C ommissioner of Immigration and Naturalization and the INS. S till, the Attorney

3 When the Homeland Security Act was enacted (P.L. 107-296), 8 C.F.R. §2.1(a) read:
Without dive sting t he Attorney Genera l o f a ny of his powers, privilege s, or
duties under t he immi gr ation and naturalization l aws ...there is delegatedtothe
Commi ssioner t he authority of the Attorney General t o direct t he admi nistration
of theService andtoenforce theAct....
4 P.L. 107-296, §451(b); see also §441 (transferring from t he Commi ssioner of INS to the
Under Secretary of Border and T r ansportation Security all INS enforcement progr ams).
5 Id. at §456.

General ret ai ned ultimate authority to interpret, enforce, implement, and adjudicat e,
even t o t h e d egree o f ret ai ni ng t h e d i s cret i o n t o i nt ervene i n i ndi vi dual cases.
Under §477(c)(2 ) ( F ) o f t he HSA, the S ecretary o f DHS has t he authority to
submit recommendations for conforming t he INA t hrough an implementation plan.
N onethel ess, in an apparent effort to cl arify t he immigration authority t h at w a s t o
remain with the Attorney General given the d ifferent focuses p resent under t he HSA
and t he authorities under t he INA, Congress amended §103(a)(1) o f t he INA i n §1102
of the HSA, and further amended i t i n Division L, §105 of the C onsolidated6
Appropriations Resolution of 2003. In contrast to th e v e r s i o n quoted above, t he
provision now reads:
The Secretary of Homeland Security shall be charged with the
admi nistration and enforcement of t his chapter and all other l aws r elating t o t he
immi gr ation and naturalization of aliens , except i n s o f ar as this chapter or s uch
laws relate to the powers, function, and d u t i e s conferred upon the President,
Attorney Ge neral , t he Secretary of State, t he offi cers of t he Departme nt of State,
or diplomatic o r c onsular officers: Provided, however, T hat determi nation a nd
rulingbythe Attorney Ge neral with respect to all questions of law s hall be
controlling. (emphasis added)
The S ecret ary o f DHS , i n accordance wi t h hi s n ew desi gn at i on, i ssued a Fi n al
Rule on March 6 , 2003, to clearly define his newly obtained authority to administer
and enforce immigration functions. 7 This Fi nal R ule amended title 8 of t he Code of
Federal R egulations (C.F.R.), §2.1 to read, i n p art:
Al l authorities and functions of the Department of Homeland Security t o
admi nister and enforce the i mmi gr a t i on laws are vested i n t he Secretary of t he
Homeland Security. T he Secretary of Homeland Security may, in the Secretary’ s
discretion, delegate any s uch authori t y or function t o any official, officer, or
employeeof theDepartmentofHomelandSecurity....
The b ackground information for the R ule s tates t hat t he regu lation i s a step in the
process o f s eparat i n g DHS enforcem ent and servi ce fun ct i ons from t he DOJ ’s
adjudication functions a s “ e n visioned b y t he Act,” and that DOJ and DHS are
worki n g t oget her t o ensure t hat t hi s com pl ex t ask proceeds as s m oot hl y as possi bl e.
Section 103 of the I NA, as amended
Through t he amendments and regulations noted above, p rimary responsibility
for administering and enforci ng immigrati o n law i n t he U.S. now lies with the
S ecretary of DHS; however, t he am endments still apparently allow t he Attorney
General t o ex ercise a s ignificant amount of authority. W hen reviewing the current
l anguage of §103(a)(1) o f t he INA t hat s tates “[ t ] h e S ecretary o f [ DHS ] s h a l l b e
charged with the admini s tration and enforcem ent of [ the INA] and all other l aws
relating t o t he immigration and naturalization of aliens, e x cep t i n so far as this

6 P. L. 108-7, Div. L, §105(a)(1).
7 Authority of the Secretary of Homeland Secur ity; Delegations of Authority; Immi gr ation
Laws, 68 Fed. Reg. 10922, 10923 (March 6, 2003) (codified at 8 C.F.R. §2.1).

chapter o r s uch l aws relate t o t he powers, function, and duties conferred upon the .
. . Attorney General,” at l eas t t wo sets of issu es arise. The first is determining
precisely which “powers, functions, and duties” Congress intendedtotransfer tothe
ex cl usive j urisdiction of DHS. The second is determining t hose areas in which both
the Attorney General and DHS are t o h a v e a m easure o f authority and how those
respective authorities i nterrelate.
With rega rd t o t h e f irst set of i ssues, i t i s notable that the INA itsel f still
design ates the Attorney General as t he indi vidual responsible for administering most
provi si ons and p rogram s. It has b een argu ed t h at onl y a sect i on-by-sect i o n revi s i o n
of the INA, removing r e f erences to the Attorney General whenever t he power is
effectivel y h el d by t he Secret ary, will truly clarify the allocation of authorities
between the t wo d e p a rt m ents. 8 H.R. 1416, the Homeland S ecurity Technical
Corrections Act o f 2003, reported o n M ay 15, 2003, would accomplish t his end with
respect to §103 and §287(g) of the INA.9 Accord i n g t o t he House R eport for H.R.
1416, the b ill “improves t he Homeland Secu rity Act o f 2002 and honors t he original
i n t ent i ons of t h e d raft ers b y m aki n g gram m at i cal and t echni cal correct i ons.”10
Also, with respect to the citizenship and immigration s ervices transferred t o
DHS, §456 of the HSA deems any reference t o another component of government in
the authorities associ at ed with the citizenship and immigration s ervices transferred
t o D H S to refer t o t he Direct or of the Bureau of Citizenship and Immigratio n
Services or to the Bureau of Citizenship and Immigration S ervices.
Though i ssues on the t ransition o f authority may appear less thorny in the l ong
run t han i ssues of shared authority, s ome controversies h ave a r i s e n . Fo r ex ample,
various news s o u r c e s a n d i nterest groups reported t hat i n December o f 2002, the
At t o rney General i ssued an o r d e r d e l egat i n g aut hori t y t o t h e Federal Bureau of
Investigation t o ex ercise t he powers and duties of immigration officers. 11 The o rder
went into effect on February 28, 2003, the d ay before the o fficial transfer of INS from
the DOJ , and authorizes “speci al agen ts of the FBI” t o i nvestigat e, determine t he
location of, and apprehend any alien who is in the United S tates i n violation of t he

8 DavidA.Martin,Immigration Policy and the Homel and Security Act Reorganization: An
Early Agenda for Practical Improvements, 80 INTERP RETER RELEASES No. 17, 601, 613 n.


9 H.R. 1416, 108th Cong. § 7 ( 1 st Sess. 2003). H.R. 1416 was r epo r t e d b y t he Select
Co mmittee on Homeland Security and placed on the Union Calendar no. 51 on M a y 1 5 ,


10H.R. Rep. No. 108-104 (2003).
11A ttorney General Delegates Immigration Authority to FBI, American Immi gr ati o n
Lawyers Association, W ASHINGTON UP DATE , V ol 7, No. 5 ( April 10, 2003) available at
[ h t t p : / / www.a i l a .or g/ f i l e V i e we r .a s px? doc ID=1 0 0 43]; M aurice Belanger, Power Pl a y?
Attorney General Gives Immigration Enforcement t o FBI ,NATI ONAL IM M I GRATI ON FORUM ,
available at [ h t t p : / / www.i l l a wyer s/ col u m_ ar t i c l e / a r t i c l e s/2003,0424-Bel a nger .sht m] ;
Laur a Par ke r , FBI Interviews Iraqis, Us es Ne w I mmi gration Arrest Powe rs ,USATODAY ,
March 21, 2003; Dan Egge n, Rules on Detention Widen,THE W AS H I NGTON POST ,March

20, 2003, at A11; FBI Gets Power Over Immigration Charges,THE ASSOCI ATED PRESS,


INA.”12 In effect, t he order gave over 11,000 FBI agents t he authority to detain and
arrest foreigners on alleged civil immigration charges in cas es where its agents lack
enough evidence t o file criminal charges – a power once onl y p o s s e s s ed by
immigration offici al s. This ex pansion of FBI authority by the Attorney General was
provided i n conjunction with the government ’ s efforts t o i nterview the m ore t han

50,000 Iraqis in the U.S. during Operation Liberty Shield.13

Under §103(4) of the INA, the Attorney Ge neral h as the authority to authoriz e
any employee o f t he DOJ (i.e. FBI employees) t o p erform any o f t he duties t hat are
imposed by the INA on employees of the INS. 14 Acco rdingl y, the Attorney General
was arguably within his l egal capacity to issue t his o rder since t he INA h ad not been
modified to effectivel y eliminat e t he Attorney General’s authority to issue s uch an
order i n February. Still, such a del egation arguably complicat ed the S ecret ary of
DHS’s antici p ated responsibilities i n t he field o f immigration enforcement and
possibly raised i ssues of accountability.
Fo r ex ample, t he Fi nal R ule i ssued by DHS on March 6 , 2003, clearly vests all
authorities and functions to enforce and administer immigration l aws i n t he
Secret ary. Thus, i t appears immigration enforcem ent by FBI offici al s i nstituted by
the Attorney General after Marc h 6 , 2003, would run counter to the regulation
promulgated b y DHS. The technical ch anges p rovided b y H . R . 1 416 would
apparently eliminat e t his possible conflict since it would effectivel y r em ove the
Attorney General from a position where h e may del egat e immigration functions to
DOJ officials. Under H.R. 1416, INA §103(4) would read:
Except as otherwi se provided by law, the Secretary of Homeland Security ma y
require or authorize any employee o f t h e Department of Homeland Security to
perform or exercise any of t he powers, privileges, or duties conferred or i mposed
by this Act or r e gu l ations issued thereunder upon any other employee of the
Department. (amended provi sions in italics)
Shared Authority. C u rrent l aw cl earl y cont em pl at es continued roles for both
DHS and t he Attorney General under immigration l aw. For instance, all o rigi nal and
appellate jurisdiction over cas es adjudicat ed by immigration j udges (IJ ’s) remains
under t he Attorney General t hrough t he Ex ecu t i v e Office of Immigration R eview
(EOIR). Furthermore, t he Attorney General ret ai ns ultimate administrative authority
under §103 to determine and rule on questions of law arising under t he INA.
Wit h i n EOIR , immigration j udges , with limited ex ception, pres ide over
proceedi n gs i n whi ch t he governm ent seeks t o rem ove al i ens from t he U.S . T h e s e
proceedi n gs requi re rul i n gs not onl y o n t h e gr ounds for removal, but also on such
attendant matters as bond and d eparture controls. Also, immigr a t i o n j udges are

12 Laur a Par ke r , FBI Interviews Iraqis, Us es New I mmi gration Arrest Powe rs ,USATODAY ,
14Codified at 8 U.S.C. §1103(4). M oreove r, under INA §103(6) the Attorney General may
also confer upon any e mploye e of t he U.S., with appropriate approval, a ny of the du t ies
imposed by the INA.

frequently as ked t o rule on discretio n a ry alternatives to removal, such as as yl um.
Al t h o u g h t hese m at t ers are l egal l y com p l ex , t h ey are al s o s eparat el y addressed b y
DHS immigration o fficers under v arious circumstances.
The Board of Immigration Appeals (BIA), t he ap p e l l ate body within EOIR ,
hears appeal s from m atters deci ded by immigration j udges . Additionally, t h e BIA
has j urisdiction t o consider appeal s of various deci sions now made by immigration
offici al s i n DHS. These deci sions can be on such matters as the imposition of fines ,
granting o f bond, and granting certain discretionary waivers. Historically, t he BIA
has been solely an administrative creation of t h e A t torney General; the Attorney
General personally retained ultimate authority to deci de cas es – fact s and law alike
– on request of a party or on the Attorney General’s own initiative. While the BIA
now has a firm er stat utory bas is, t he Attorney General s till has final say i n
immigration cas es that come within EOIR ’s am bit.
Thus, t he Attorney General t ook pers onal j urisdiction over t he case o f In re D-J-
Respondent 15 at the request of DH S . T h e opinion addresses an unauthoriz ed alien
from Haiti who was taken i nto custody and d etained b y t he INS after arriving aboard
a v essel t hat s ailed t o Biscayne Bay, Fl orida, on Octob e r 2 9 , 2 002 with 216 other
illegal aliens from Haiti and t he Dominican Republ i c. For bond proceedings , t he
cas e i nstructs IJ ’s and t he BIA t o consider “national s ecurity interests” implicat ed by
t h e encouragem ent o f furt h er unl awful m as s migrations from unauthoriz ed migrants
who arrive in the United S tates b y s ea s e e k i n g t o evade inspection. The opinion
further s tates t hat i n all future bond proceed ings involving aliens seeking t o enter the
United S tates illegally,16 IJ ’s and t he BIA m ust consi d er evi d ence est abl i s hi ng t h at
significant national s ecurity interests a re implicat ed from s ources in the ex ecutive
Nominally, t he opinion in In re D-J- is addressed t o deci sions made within the
contex t o f EOIR p roceedings . However, o f f i c i als within DHS also make bond
determinations that may or m ay not su b s equently come before EOIR . S imilarly,
offi ci al s wi t h i n DHS can m ake asyl um deci si ons wi t h respect t o appl i cant s n o t
already i n p roceedings before an immigration j udge, while unsuccessful applicants
may s ubsequently revive thei r asylum applications before immigration j udges in the
cont ex t o f rem oval p roceedi n gs .
Under t hese circumstances, where separate agencies have overlapping authority
over l egally complex det erminations, some l eading commentat ors see the possibility
for confusion and tension. Suppose, for ex a mple, t he Attorney General d ecided t o

1523 I&N Dec. 572 (A.G. 2003), 2009 BIA Lexis 3.
16Cuban migrants r eceive more generous treatment under U.S. l aw t h a n f o reign nationals
from most other coun t r ies. T his policy i s r eflected in the Cuban Adj ustment Act of 1966
( P .L. 89-73), a s a me nded, which provi des t hat c ertain Cubans who have been physically
present i n t he U.S. for a t l east 1 ye a r ma y a d j u s t t o perma nent residence s tatus a t t he
discretion of t he Attorney General. In essence, Cub a n s wh o d o not reach the s hore, are
interdicted and returned to Cuba unless t hey cite fears of persecution. For more i nformation
on Cuban a nd Ha itian M igrants, see CRS Re port RS21349, U.S. Immigration P o l icy on
Haitian M igrants ,byRuthEllenWasem.

review a cas e on personal i nitiative i nstead of on request of DHS and concluded t hat
DHS’s position o n a particular question w as wrong. S uppose, for ex ample, t hat t he
Attorney General d e c i d e d i n s uch a case t hat, contrary to DHS’s view, a particular
set o f circumstances do not amount to the t yp e o f p ersecution t hat m erits a grant of
asyl um. Is DHS indirectly bound by this interpretation b ecause the Attorney General
has final administrat i v e s ay on legal questions? If DHS continues t o apply its
interpretation i n considering asylum applications filed with it and grants asylum i n
cas es in which immigration j udges could not, what l egal or policy consequences
follow? On the other hand, is it still appropriate for t he A t t o rn ey General t o have
primary authority to interpret a law primarily implemented by another agency, an
agency arguably more familiar with day-to-day operational realities?
February 28, 2002, Re gulations Promulgate d by the DO J. Many saw
the p rospect of c o n t roversy over s hared power foreshadowed in regu lations issued
by the Attorney General t he day b efore m os t operat i o n a l f u n ctions transferred t o
DHS. As i ndicated above, b efore t he DHS wa s established both INS and t he EOIR
were elements of the DOJ ; t hus, t he regu lations affecting t hese components w e r e
included i n t he same chapter o f t he Code of Federal R egulations (C.F.R.). The HSA,
while transferring most immigration rel at ed fu n ctions (i.e., enforcem ent and
citizenship services) to the DHS, did retain in the DOJ, under t he direction o f t he
Attorney General, the functions of EOIR . To address t he authority retained b y t h e
DOJ , C ongress added s ubsection (g) to §103 of the INA.17 S ubsect i o n (g) st at es:
T he Attorney Ge n e r a l s hall have such authorities and functions under t his Act
and all other l aws r elating t o t he immi gr ation and naturalization of aliens as were
exercised by t h e Executive Office for Immi gr ation Review, or by the Attorney
General with respect to the Executive Office for Immi gr ation Review, on the day
before the effective date of t he Immi gr ation Reform, Accountability and Security
Enhancement Act of 2002.
In accordance wi t h t h e r et ai ned aut hori t y, t he DOJ i ssued a Fi n al R u l e on
February 28, 2002, that reorganized Title 8 o f t he C.F. R. to reflect the restructuring
schem e creat ed by t h e H S A . 18 The regul at i o n (1) creat ed a n ew C h a p t e r V i n 8
C.F.R beginning with Part 1001 to maintain t hose regulations that solely relate to the
funct i ons of EOIR , (2) dupl i cat ed cert ai n provi si ons t h at rel at e t o proceedi n gs before
both t he INS and EOIR , and (3) m ade a number o f t echnical amendments. 19
According t o t he background information p rovided i n t he Fi nal R ule, e n t i r e
parts common t o both t he INS a n d E O IR w ere moved and duplicated for purposes
of “convenience” and “continuity.” As “shared p rovisions,” the Attorney General
and t he S ecret ary o f DHS “can consul t each ot her when cont em pl at i n g changes i n

17Section 1102 of the HSA added t he new s ubsection ( g) to §103 of the INA.
18Aliens and Nationality; Homeland Security; Reorganization of Regulations, 68 Fed. Reg.

9824 (Feb. 28, 2003) (codified at 8 C.F.R pts. I, V ) .

19Id. For a c omplete listing of t he rationales f or each change , s ee 68 F R 9 8 24, 9826,
Summa ry of the Changes From 8 CFR Chapter I to Chapter V .

those rules that affect both EOIR and INS” 20 – consulta t i o n i s not mandatory. In
determining t he definition of “as yl um,” for i nstance, a s enior DOJ offici al reportedly
st at ed t h at “[ b] ot h d epart m ent s h ave equi t y” and t h at “[ n] e i t h er depart m ent wi l l
promulgate a rule without the assent of the other.”21 The General C o m m ent s o f t he
Fi nal R ule i ndicate t hat n o s ubstantiative changes have been made. 22
Another i ndication o f potential confusion i n t he regulati o n s occurs in
background comments regarding Temporar y P rotected Status (TPS), a program i n
which t he Attorney General not only grant ed individuals protecte d status but also
designat ed which nationalities w ere potentially eligible for such status. The
background information o f t he Fi nal R ule s tates t hat t he “duplication s hould not be
viewed as any i ndication t hat t he Depar tment o f J u s t i c e i s i nvolved i n t hose (i.e.
design ation) future decisions,” but is neve rtheless necessary to “ensure continuity.”23
In recognition of t he possible confusion t hat could result from duplicated authorities
(like t hat of TPS), t he Rule indicat es that “further refinement to cl arify t he authority”
t r a n s f e r red t o t he S ecret ary o f DHS and ret ai ned b y t he At t o rney General w i l l be
On March 1 , 2003, the Department of Homeland S ecurity became responsible
for s ecuring our nation's borders and m anaging t he immigration process. In the pas t,
these t wo im p o rtant missions were bundled together within one agency - t he
Immigration and Naturalization S ervice, under t he primary control o f t he Attorney
General. Although §103(a)(1) o f t he INA has been amended t o reflect this massive
transfer of authority, t he Attorney General s till apparently retains s ome authority to
affect the practices an d procedures utilized by DHS as demonstrat ed by the
aforementioned events. W h i l e congressional m eas ures and administrative
cl arificat i o n s may provide the ex plicit guidance to cl arify del egations of authority,
such measures appear to demonstrate a n eed for t he continued cooperation b etween
the t wo departments.

20Id. at 9824-25 (emphasis a dded).
21Martin, supra note, 8 a t 617 n.82 ( citing George Lardner J r., As hcroft Reconsiders Asylum
Granted to Abused Guatemalan; New Regulations Could Affect Gender-Based Persecution,
T HE W ASHI NGTON POST , M arch 3, 2002 at A2).
2268 Fed. Reg. at 9825.
23INA §244 (codified as amended a t 8 U.S.C. §1254); 68 Fed. Reg. 9824, 9827.