Beth Zilberman is an assistant professor and director of the Immigration Clinic at the University of Arkansas School of Law. She is an expert on asylum and child immigration and a trusted source for local and national reporters in print and broadcast media who are seeking clarity on complex legal issues when researching immigration issues. Her scholarship focuses on access to justice in immigration adjudications and intersects with family, education and juvenile justice law.
Enforcing Split-Enforcement In Immigration Agencies
Abstract. The current immigration agency structure was created to solve a century-old problem: how to ensure agencies effectively perform the immigration system's two primary, yet conflicting missions: 1) provide of the "service" of fair and efficient adjudication of immigration and citizenship applications, and 2) enforce the draconian immigration laws that make millions of people vulnerable to deportation. The solution was to statutorily split the adjudication services from enforcement functions through the creation of distinct bureau-level agencies under the newly created enforcement-focused cabinet level agency, the Department of Homeland Security.
Despite congressional intention, since its inception, the agency with the congressionally dictated service-oriented mission of administering the legal immigration system, the U.S. Citizenship and Immigration Services (USCIS), has increasingly assumed immigration enforcement functions. USCIS now performs the prosecutorial role of initiating removal proceedings at a rate higher than the agencies whose charge is immigration enforcement. USICS's service mission has been effectively overtaken by enforcement functions that it is ill equipped to execute, leaving the agency unable to fulfill its mandate fairly, accurately, or efficiently.
This Article analyzes USCIS's shift in mission away from service towards enforcement through an administrative law framework. In so doing, it seeks to bridge immigration and administrative law scholarship through analyzing the features of internal administrative law, institutional and agency design choices that have enabled and encouraged USCIS to contravene congressional separation of enforcement functions.