The politics around immigration are historically difficult and perhaps never more than this moment where global migration fueled by economic disparities, public health emergencies, weather disasters and political instability has overwhelmed governments around the world, including our own. But one of the major reasons for our own internal chaos is the fact that we cannot even pick leaders to run our own immigration agencies.
Before 9/11, all immigration issues were overseen by the former Immigration and Naturalization Service (INS). In creating the new Department of Homeland Security (DHS), Congress divided these responsibilities between two new agencies: the Bureau of Border Security (BBS) and U.S. Citizenship and Immigration Services (USCIS). However, before the ink on the new law was dry, DHS further divided the BBS into the U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP).
In the first decade of DHS, when the public focus was on counterterrorism, Congress was able to confirm leaders with some bipartisan support and in a relatively timely manner. As a result, you had fairly non-controversial nominees such as Robert Bonner and Gil Kerlikowske at CBP and Michael Garcia and John Morton at ICE.
Ironically, it was at Transportation and Security Administration (TSA), the completely brand-new agency, where there was a constant churn of administrators with ten different people serving in the top job over a 12-year span. In response — and with industry blessing — Congress converted the TSA job into a five-year term appointment so there would be continuity in a critical security position. In this regard, the TSA position now is similar to the FBI Director, which has a 10-year term, and the Federal Aviation Administration (FAA) Administrator with a five-term year. But just as Congress was adding stability to the TSA position, the opposite was happening at CBP, ICE and USCIS.
Since Kevin McAleenan was confirmed in 2018 as CBP Commissioner, only one CBP nominee has been confirmed — Chris Magnus in 2021. Magnus did not last a year in the job before resigning under pressure from the White House and Republicans with concerns about apprehension numbers at the southern border, leaving CBP with five leadership changes since 2019.
However, CBP has been a model of stability compared to ICE. The constant chaos in the Trump administration led to seven different acting heads over four years. President Biden’s candidate for the job saw his nomination delayed for over a year before he withdrew, meaning Tae Johnson has been acting in the role for 26 months. Just last month, the Government Accountability Office forced ICE to change the title of Mr. Johnson from “Acting Director” to “Senior Official Performing the Duties of Director.”
And while the Senate fortunately did confirm Directors of USCIS in both 2017 and 2021, there still have been eight different heads since 2017. This churn is in part due to delays in confirmations and in part due to the chaotic Trump administration forcing out their own nominee after less than a year and a half on the job.
No matter your immigration views, this type of churn and instability is dangerous and inefficient.
The danger is highlighted by the number of people on the terrorist watch list apprehended at the Southern Border; we don’t know how many might actually have gotten through.
It is vital to homeland security that our agencies see consistency in their political leadership and ensure civil service leadership are not forced into quasi-political acting roles for extensive periods of time.
CBP, ICE and USCIS together employ over 100,000 law enforcement personnel, attorneys and support staff and are responsible for significant missions that affect our economy, civil liberties and international relations: facilitating lawful trade and travel to the US, inspecting cargo at our ports, investigating international criminal gangs and companies and combatting drug smuggling, including the scourge of fentanyl. These critical missions are conducted alongside the immigration operations of border and domestic immigration enforcement, and processing legal immigration applications.
To avoid further institutionalizing this instability, we recommend Congress enact statutory changes to establish the CBP Commissioner and the ICE and USCIS Director positions each as a five-year term meant to extend across presidential terms. These individuals no doubt might be given different immigration policy priorities to implement by a new president but that is no different from the FBI re-calibrating criminal priorities or the FAA shifting gears to protect aviation safety.
This change would attract fewer partisan candidates to these positions, minimize the disruption in operations around the beginning of a new presidential term, and reemphasize that CBP, ICE and USCIS as immigration agencies are non-partisan.
Most Americans would think it would be crazy to have a new FBI Director every year, but that’s almost the exact situation we have suffered through at our immigration agencies, two of which are also federal law enforcement agencies like the FBI.
Congress needs to set these agencies up for stability and success by turning away from the turmoil our current nomination and confirmation process has generated. As the Department of Homeland Security turns 20 years old this month, Congress can make this reform to better guarantee stability in homeland security and the vital enforcement of our immigration system.
C. Stewart Verdery, Jr. served as the Assistant Secretary for Border and Transportation Security Policy and Planning during the Bush administration and is a member of the Council on National Security and Immigration.
Kate Christensen Mills served as Assistant Director for Congressional Relations and U.S. Immigration and Customs Enforcement during the Obama administration.
Both are partners at Monument Advocacy, a government relations and public affairs firm based in Washington, D.C.