Immigration law in the United States involves a complicated set of laws and regulations, which are administered and enforced by agencies spread across several Cabinet-level departments of the federal government. The immigration system covers two main areas: benefits and enforcement. While our law practice focuses on immigration benefits, namely immigrant and nonimmigrant visa petitions and applications to adjust status to permanent resident, everything in this system is connected, however distantly. The New Jersey immigration system, according to various studies, is particularly beset with problems, including massive case backlogs. It is useful to look at the entire process, from petitions to removals, since careful and thorough preparation during the petition part of the process can help prevent any contact with other parts of the system.
The Immigration and Nationality Act (INA), 8 U.S.C. § 1101 et seq., is the country’s primary immigration statute. Prior to 2003, administration of the “benefits” part of the law was split between the Department of State (DOS) and the Department of Justice (DOJ). People seeking visas outside the U.S. applied at U.S. embassies and consulates operated by the DOS. Petitions and applications filed within the U.S. went through a DOJ agency that no longer exists, the Immigration and Naturalization Service (INS). The Homeland Security Act (HSA) of 2002 moved the INS to the newly created Department of Homeland Security (DHS), and it divided its responsibilities among several new agencies. It created U.S. Citizenship and Immigration Services (USCIS) to process immigration petitions and applications.
The enforcement side of the INA involved multiple DOJ agencies before 2003. The INS and the Border Patrol handled investigations of suspected immigration violations, and the INS represented the government in court proceedings seeking removal. Another DOJ agency, the Executive Office for Immigration Review (EOIR), operated a system of courts that heard removal cases and a Board of Immigration Appeals (BIA) to review those courts’ rulings. The HSA kept the the EOIR where it is but moved the enforcement functions of the INS and Border Patrol to two DHS agencies: Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP). The officers who enforce immigration law and the attorneys who represent the government in immigration court now work for the DHS, while the immigration court judges still work for the DOJ.
The immigration courts are not part of the federal court system established by Article III of the U.S. Constitution. Instead, they were established by Congress through the INA. See 8 U.S.C. § 1103(g), 8 C.F.R. § 1003.0. Proceedings in immigration courts are not considered criminal trials, and as a result, respondents do not have the full set of constitutional rights available to criminal defendants. Many due process protections and other rights do apply, however, including a limited Fourth Amendment right against warrantless searches and seizures and the Fifth Amendment right against self-incrimination.
Immigration court decisions may be appealed to the BIA and then to the relevant Circuit Court of Appeals. The U.S. Supreme Court recently bolstered respondents’ due process rights in BIA proceedings in Mata v. Lynch, 576 US ___ (2015).
Immigration and green card attorney Samuel C. Berger represents immigrants and prospective immigrants to the Northern New Jersey and New York City areas, as well as family members and employers who want to petition on an immigrant’s behalf. Contact us online, at (201) 587-1500, or at (212) 380-8117 today to schedule a confidential consultation to see how our knowledgeable and experienced team can help you.
More Blog Posts:
New Jersey Appellate Court Reviews Waiver of Inadmissibility Claim in Immigration Case, New York & New Jersey Immigration Lawyer Blog, July 27, 2017
Falsely Claiming U.S. Citizenship Can Result in the Loss or Denial of Immigration Benefits, New York & New Jersey Immigration Lawyer Blog, April 27, 2017
Cases in New York and New Jersey Allege Immigration Fraud Involving “Sham Marriages”, New York & New Jersey Immigration Lawyer Blog, May 27, 2015
Photo credit: U.S. Government [Public domain], via Wikimedia Commons.