General Practice, Solo & Small Firm DivisionMagazine
by Neil S. Dornbaum
© American Bar Association. All rights reserved.
Neil S. Dornbaum is a partner in the law firm of Rubin & Dornbaum in Newark, New Jersey. The firm's practice is limited to immigration and nationality matters with special emphasis on business-related immigration. He is currently chair of the ABA General Practice, Solo and Small Firm Division's Immigration Law Committee.
Recent changes to federal immigration laws erect new barriers to legal immigration, eliminate due process protections, lay the foundation for a nationwide computerized registry to enforce employer sanctions, deny a wide range of benefits to longtime lawful permanent residents, and restrict federal court review and oversight of agency decisions and practices.
Immigration law is extremely complex and undergoes numerous changes on a daily basis. Most recently, Congress has enacted some of the most sweeping changes to our laws since the Immigration and Nationality Act of 1952 (INA). The new laws and regulations substantially add to the complexity of immigration law practice by rewriting many areas of existing law and creating new legal standards. Due to the far-reaching implications of these laws, the ABA Board of Governors designated immigration law to be a legislative priority in the 102d, 103d, and 104th Congresses.
In addition to the INA itself, there are conventions and treaties entered into by the United States that pertain to the immigration, exclusion, deportation, expulsion, and removal of aliens. There is also a continuous flow of federal court and administrative agency decisions-including the Board of Alien Labor Certification Appeals (BALCA), the Board of Immigration Appeals (BIA), the Chief Administrative Hearing Officer (CAHO), and the Executive Office of Immigration Review (EOIR), which impact daily practice. In addition, regulations are promulgated daily from various governmental agencies including the Immigration and Naturalization Service (INS), the Department of State, the Department of Labor (DOL), the U.S. Information Agency (USIA), and the Public Health Service (PHS).
ABA RESOURCES ON IMMIGRATION LAW
The American Bar Association recognizes the diversity of U.S. immigration practice and has established the Coordinating Committee on Immigration Law to review the nation's immigration laws, coordinate immigration law activities among the various ABA entities, advocate ABA polices in Washington, D.C., provide information about available benefits and procedures to members of the bar and affiliated individuals, and involve state and local bar associations and volunteer lawyers in these efforts.
The committee is comprised of eight entities, each with two representatives (Administrative Law; Criminal Justice; General Practice, Solo and Small Firm; Individual Rights and Responsibilities; International Law and Practice; Labor and Employment Law; Litigation; and the Young Lawyers Division), and the American Immigration Lawyers Association (an affiliated organization).
The ABA also has a Center for Immigration Law and Representation, located in Washington, D.C. The center staffs the coordinating committee, maintains current lists of legal seminars and resources, and coordinates ABA activities directed to improving the rights of immigrants and refugees, and their access to the justice system. The center is located at 740 15th Street N.W., Wash-ington DC 20005, phone 202/662-1005.
There is strong conflict within the INS itself. The INS is responsible for both the adjudication and the review of millions of applications for admission and benefits each year. It determines the qualifications for admission of aliens; controls the travel of citizens and aliens; oversees entrance and maintenance of status of both nonimmigrants and immigrants; and handles refugee, asylum, and citizenship issues.
The INS is also charged with the enforcement of immigration laws, including border enforcement, inspection, apprehension, examination, exclusion, and removal of persons. Its duties include the recision of U.S. citizenship based on abandonment, criminal actions, and fraud; and provision of administrative and judicial review of the proceedings involved in these areas. The INS also has the authority to impose and enforce civil and criminal liabilities. This dual responsibility has been the subject of some debate; at question is whether there is a need to split the agency's functions. This promises to be a hot topic for Congress in the year ahead.
Enforcement of the INA is shared by the Department of Justice and the Department of State. The Secretary of State is charged with the administration and enforcement of the provisions of the INA and all other immigration and nationality laws relating to the powers, duties, and functions of diplomatic consular offices of the United States. Within the Department of State are the Passport and Visa Offices.
Currently, there are more than 150 U.S. embassies outside of the United States. These embassies maintain offices responsible for enforcing the laws that regulate the admission of aliens to the United States and for administering various immigration benefits. The Attorney General is charged with the administration and enforcement of the INA and all other laws relating to the immigration and naturalization of aliens, except those duties that fall under the powers, functions, and duties conferred upon the president, the Secretary of State, or diplomatic or consular officers.
The INS operates primarily through its headquarters, regional and district offices, regional service centers, and border patrol. The INS controls the granting of benefits and privileges to those qualified to receive them, as well as the withholding of benefits and privileges to those who are not. The INS is also responsible for control of borders and prevention of illegal entry into the United States; detection, apprehension, detention, and removal of aliens; enforcement of employer sanctions and other provisions of immigration related laws; refugee processing; adjudication of relative applications/petitions filed by citizens and legal permanent residents; and deterrence of alien smuggling and fraud activities.
Immigration Judges and the Board of Immigration Appeals have authority over exclusion, deportation, removal, and asylum proceedings; decisions involving administrative fines and penalties; bonds; paroles; and the detention of aliens. The Immigration Judges and the Board of Immigration Appeals fall under the administrative charge of the Executive Office of Immigration Review.
The Public Health Service is responsible for performing physical and mental examinations of aliens seeking admissibility and may certify the existence of a defect or disease that may render the alien inadmissible. The U.S. Information Agency is charged
with administering the 4,000+ exchange visitor programs that have been set up to increase mutual understanding between people of the United States and other countries by means of educational and cultural exchanges. The DOL also is heavily involved with immigration, issuing certifications for the temporary and permanent employment of aliens in the United States.
Regulations and Rights
As explained, the responsibility for administering the immigration laws of the United States is shared. Practitioners must therefore consult the regulations of more than one agency for relevant procedures and interpretations in resolving many immigration issues. Sources of required reference material include the INS's Examinations Handbook and Operations Instructions, the State Department's Foreign Affairs Manual, and the DOL's Technical Assistance Guide and Dictionary of Occupational Titles. In addition, the INS, DOL, and Board of Immigration Appeals also publish administrative decisions, as does the Office of the Chief Administrative Officer for decisions under the employer sanctions and unfair immigration-related employment practices laws. Some of the decisions by these bodies are selected and designated as precedent.
Constitutional issues are also prominent in the field of immigration and nationality. Litigation of aliens' rights to enter and remain in the United States, remain free of detention, attend school, and receive benefits have been subject to a long history of case law. Today, new issues abound on detention and bond eligibility, retroactivity of criminal violations, restrictions to judicial review, and expedited removal. CL