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Law and the Border: Immigration service, customs undergo major restructuring

In November of 2002, the U.S. government embarked on the largest restructuring of the federal government in decades, with the creation of the Department of Homeland Security (DHS). On Mar. 1, the DHS ...

In November of 2002, the U.S. government embarked on the largest restructuring of the federal government in decades, with the creation of the Department of Homeland Security (DHS). On Mar. 1, the DHS formally took control over the functions previously handled by the U.S. Immigration and Naturalization Service (INS), the U.S. Customs Service, and others. The primary goal of the restructuring was to separate the service and enforcement components of those two agencies, particularly as they relate to the INS. The INS traditionally performed two functions that, at times, were inconsistent from a policy and personnel standpoint. One was the ‘benefits’ side, under which the INS processed visas, citizenship applications, and related benefits. On the enforcement side, the same entity was charged with monitoring the entry and exit of approximately 35 million people who enter the U.S. temporarily each year. Effective Mar. 1, three separate groups operate within the DHS to achieve the functions previously performed by INS and Customs. The new entities are as follows:

Bureau of Customs and Border Protection (BCBP). This group performs the functions formerly handled by Customs, INS inspections, Department of Agriculture inspections, and Border Patrol. It is BCBP personnel you will encounter at land and sea ports of entry, as well as pre-flight inspection. As in the past, the Border Patrol has jurisdiction within the interior U.S., with a primary objective of monitoring border areas where there are no fixed ports of entry. Border inspections officers were traditionally staffed by both Customs and INS personnel, and that mix will remain. However, whereas Customs personnel were more interested in the entry of goods, including trucking equipment, and Immigration personnel were more interested in individuals, BCBP personnel will be trained in both areas.

Bureau of Citizenship and Immigration Services (BCIS). This group will deal primarily deal with naturalization, visa applications and related benefits, such as work authorization. Most BCIS personnel are former INS personnel who did not work as inspections officers at the ports of entry.

Bureau of Immigration and Customs Enforcement (BICE). This group will be in charge of investigations, deportation and removal. They will have jurisdiction over the various detention centers, and will work within the Immigration Court system to charge and implement the deportation or removal of persons illegally in the U.S.

There have been no changes in the law relating to cabotage or the availability of waivers for persons having criminal records. However, the procedures and documentary requirements for entries have changed for some people. Information databases have been broadly expanded over the past year and one-half, resulting in the questioning and/or refusal of entry for many individuals who had never had problems before. Sometimes, the issue was nothing more than having the same or similar name and date of birth to another individual who is inadmissible to the U.S. When any such event occurs, the BCIS or BCBP must obtain clearance from the FBI in Washington before the individual can be cleared. We have seen tremendous backlogs in some areas, resulting in unfair and inordinate delays for visa approvals and waiver approvals for an unlucky few.

Persons who require visas to enter the U.S. have seen a drastic change in the procedures for issuance of consular visas worldwide, along with a much higher rejection rate for people applying for visitor visas, particularly in the “countries of concern” on the U.S. Department of State list. On Mar. 17, 2003, the Department of State removed the visa exemption previously enjoyed by Canadian landed immigrants who were citizens of UK commonwealth countries. Now, unless a waiver of the visa requirement is available, all such landed immigrants require a visa issued by a U.S. Consulate in Canada for entry as a visitor to the U.S. That may not be as bad as it sounds. Canadian citizens remain exempt from the visa requirement and citizens from 28 other countries currently enjoy a waiver of the visa requirement for short-term visits to the U.S. for business or pleasure. Five of the UK commonwealth countries (Australia, Brunei, New Zealand, Singapore and the UK) are among the 28 visa waiver countries, so citizens of those countries, whether or not a resident of Canada, are eligible for temporary entry as a visitor without a visa.

Finally, citizens or nationals of certain “countries of concern” must undergo the added step of a registration process upon each entry to the U.S. Registration entails fingerprinting, photographing and an interview, and a record of departure from the U.S. The purpose of this procedure is to monitor individuals more closely and assure that they have departed the U.S. in a timely manner, consistent with their stated purpose for entry.

– Daniel Joyce can be reached at Hirsch and Joyce, Attorneys at Law, at 716-564-2727.

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