A BROAD ADMINISTRATIVE HISTORY OF US IMMIGRATION POLICY

The administrative history of US immigration policy arguably reflects a history of major shifts in political emphasis: from the economy, to culture, then (at least until recently) to security.

The first immigration office in US history was created under the Treasury Department during the economic depression of the late 1880s to enforce related group exclusions (Donovan, 2005). That office then became the Immigration and Naturalization Services (“INS”) in 1891, which developed a new variety of immigration services emphasizing the need for a somewhat more liberal “commercial”  immigration filter, before being transferred from one cabinet department to another throughout the twentieth-century (more so than any other large federal agency)--first to Commerce and Labor, then to Labor, then to Justice, and finally to Homeland Security, depending on the political winds and the prevailing concerns of the times (Donovan, 2005).

And yet, throughout that history, INS was somehow able to retain a fairly consistent identity--as a soft political punching ball. According to Wilson (2000, p. 158), the agency was “conspicuous for its weak sense of mission and low morale.” Many deemed it a unique model of the most terrible form of bureaucratic inefficiency, and its leaders were frequently fired or otherwise replaced. Still, it retained a sort of organizational “inertia […] in large part due to the lack of consensus about what specifically should be changed” about it (Donovan, 2005, p. 577).

Interestingly, this remained the case even after the 1960s, when the ideal of multiculturalism, following the civil rights movement, arguably led to a new liberalization of immigration policies: “the numbers of foreign-born grew so rapidly that many communities and states felt overburdened with the responsibility to absorb them all” (Donovan, 2005, p.36). And, as the number of immigrants grew, so did their political power base--while the functions of immigration enforcement and services continued to vary on a spectrum, somewhere between interest group politics and client politics, depending on larger public perceptions of the per capita costs and benefits of immigration (see Wilson, 2000).

DEFERRED ACTION FOR CHILDHOOD ARRIVALS (DACA): Two Months In

On August 15, 2012, USCIS (the immigration services branch of DHS) officially began processing requests for deferred removal action under the Obama administration's most recent--and, so far, most significant--prosecutorial discretion and/or humanitarian immigration relief initiative: DACA. (On a minor note: while the administration has convincingly defended the legality of the program on the basis of the principle of prosecutorial discretion, it is interesting to point out that the USCIS website currently categorizes it under the humanitarian label--which normally applies to cases such as asylum, Temporary Protected Status, humanitarian parole, etc.).

Under the new policy, individuals currently in the United States may obtain every two-year a temporary work permit and (basically) a temporary promise from the federal government that they will not be placed in removal proceedings for being present in the country without legal status, if: they arrived before turning 16; they have "continuously resided" in the country since June 15, 2007; they were under 31 and were physically present in the country illegally on June 15, 2012; they have finished high school, have gotten a GED or have been honorably discharged from the military; and they have no significant criminal record and do not threaten national security or public safety. (For details, see here.)

Between 1.2 and 1.7 million individuals (about 70% of whom are from Mexico, and 740,000 of whom may have been employed illegally) are expected to meet these criteria--primarily in California, Texas, Florida and New York/New Jersey. (With reference to the DREAM Act proposal, let's call them "quasi-DREAMers.")

According to the New York Times, as of September, USCIS wouldn't "say how many people had applied, but rough estimates put it at about 150,000 [...], with a fraction having won deferrals." And, as of September 28, that "fraction" stood at only 29 agency-confirmed approvals (for the total number of requests).

MISSION, ORGANIZATION, CONSTRAINTS AND CHALLENGES OF THE DEPARTMENT OF HOMELAND SECURITY

While Executive Order 13228 had created the Office of Homeland Security to focus solely on terrorism, the Homeland Security Act of 2002 (“HSA”) established the Department of Homeland Security ("DHS") to focus mainly on terrorism. The plain language and structure of the Act made this priority clear: the first three clauses describing the new agency's primary mission referred solely to terrorism, whereas other “natural and manmade crises and emergency planning” were mentioned only once, subsequently, as part of “all functions of entities transferred to [DHS].”

That transfer of entities resulted in the largest and most complex reorganization of the federal government since the Defense Department was created in 1947 (Brook and King, 2007; Moynihan, 2005). With an annual budget exceeding $36 billion, DHS would bring together 180,000 employees from twenty-two originating agencies with very different tasks, cultures and management systems into a coherent whole (Government Accountability Office [GAO], 2007; Donovan, 2005).

Among those agencies were newer organizations, including the Transportation Security Administration (“TSA”), which had been recently created under the Department of Transportation to remedy airport security failures attributed to state and local airport owners and operators (Haynes, 2004). There were also old, well-established or otherwise “independent” organizations such as the Secret Service, the Coast Guard, the Federal Emergency Management Agency (“FEMA”) and the Immigration and Naturalization Service (“INS”). Some of those agencies, such as INS, were broken up into separate entities, while others acquired new functions, sometimes stripped from outside agencies, in order to form new entities like Customs and Border Protection (“CBP”).

This vast collection of agencies was bound to create internal problems.

ORIGINS OF THE DEPARTMENT OF HOMELAND SECURITY

As one commentator put it, 9/11 provided a “visceral answer” to the question, “what objective reality does the term homeland security refer to?” (Bellavita, 2008, p. 3). Prior to that event, the topic of terrorism had no special status in security discourse and procedures (Mabee, 2007). But “9/11 not only became crucial in a securitization process concerning terrorism, it also solidified the idea of a new environment of threat, that would need unprecedented kinds of action [and] the development of new security institutions”(Mabee, 2007, p. 390).

The event also provoked a new focus on transnational actors as security threats (that is, as potential terrorist threats)--a shift that would come to deeply affect immigration policy and enforcement, directly and indirectly (Mabee, 2007).

At the same time, beyond the visceral sense, the attacks brought little clarity or consensus on the analytical definition of homeland security (Bellavita, 2008). And, accordingly, if a new homeland security institution was to be created, it was unclear whether its mandate should also include natural disasters and other hazards (limited or not by state and local jurisdictions), or even traditional national security functions served by pre-existing agencies. On the one hand, “there just is not that much terrorism in the United States to warrant spending the billions of dollars” the United States would come to spend on homeland security concerns (Bellavita, 2008, p. 3). On the other hand, too large a concept or institution of homeland security would seem to make bitter turf wars with well-established organizations (such as the Defense Department or the FBI) unavoidable.

PROSECUTORIAL "TRIAGE"

In November 2011, DHS took another concrete step to match its recent call for a more systematic policy of prosecutorial discretion. It would begin reviewing all removal cases before immigration courts (about 300, 000 cases) and start a nationwide training program for ICE agents (including DHS attorneys). This is a positive step; in fact, the immigrant defense community was becoming impatient, as the NYT reported (see here), because the policy was being implemented without much consistency.

H-1B/H-2B/PERM: Prevailing Wage Determinations Backlog

Prevailing Wage Determinations (PWDs) are normally issued by the U.S. Department of Labor's (DOL) National Prevailing Wage Center (NPWC) in order to help employers ascertain their special "minimum wage" requirement in hiring certain foreign citizens. It is a required step in some cases (when hiring qualifying foreign citizens for permanent employment (PERM)), but only an optional one in others (for instance, when hiring qualifying foreign citizens for H-1B (specialty occupation) temporary employment).