Immigration Emergency Fund

The $20 million that the Immigration and Naturalization Act makes available, in the Immigration

Emergency Fund, for reimbursement of states and localities for certain immigration-related assistance is available annually, not just one time during the life of the IEF.

January 26, 1996

M e m o r a n d u m O p in io n f o r t h e

A s s is t a n t A t t o r n e y G e n e r a l f o r A d m in is t r a t io n

You have asked us whether the $20 million in the Immigration Emergency Fund 

for reimbursement of states and localities for certain immigration-related assistance is available annually or whether a total of $20 million is available from 

the account for such expenses. We conclude that the $20 million is available annually.

Section 404(b) of the Immigration and Nationality Act, see 8 U.S.C. §§ 1101— 

1537, created an Immigration Emergency Fund (“ IEF” or “ fund” ) that could 

be drawn upon to increase the Immigration and Naturalization Service’s (“ INS” ) 

enforcement activities, and to reimburse states and localities in providing assistance, as requested by the Attorney General in meeting an immigration emergency 

declared by the President. Immigration Reform and Control Act of 1986, Pub. 

L. No. 99-603, §113, 100 Stat. 3359, 3383 (codified as amended at 8 U.S.C. 

§1101 note). A 1990 amendment expanded the use of the IEF by providing in 

sections 404(b)(2)(A)-(B) that up to $20 million in the IEF shall be available 

for the reimbursement of states and localities 1 “ providing assistance as required 

by the Attorney General” when asylum applications in any INS district increase 

by at least 1000, when the lives, property, safety, or welfare of state or local 

residents are endangered, or “ in any other circumstances as determined by the 

Attorney General.” Immigration Act of 1990, Pub. L. No. 101-649, §705, 104 

Stat. 4978, 5087. The Attorney General may make such expenditures without a 

presidential determination that an immigration emergency exists. § 404(b)(2)(C).

Congress created the IEF as a “ no-year fund.” 2 As such, the appropriations 

to the IEF are not limited to use in any specific fiscal year and the funds within 

the IEF remain available for its purposes until expended. In stating that there 

“ are authorized to be appropriated (for fiscal year 1991 and any subsequent fiscal 

year) to an immigration emergency fund . . . an amount sufficient to provide

'T h e specific reference to “ all localities” in section 404(b)(2)(B), given the additional reference to section 

404(b)(2)(A), must be read to encompass both states and localities.

2The standard language used to make a “ no-year” appropriation is “ ‘to remain available until expended.’ ” 

Office o f General Counsel, General Accounting Office, 1 Principles o f Federal Appropriations Law 5 -6 (2d ed. 

1991). W hen the EEF was first funded, in 1989, Congress appropriated $35 million “ [f]or necessary expenses of 

the immigration emergency fund . . . to remain available until expended." Departments of Commerce, Justice, and 

State, the Judiciary, and Related Agencies Appropriations Act, 1990, Pub. L. No. 101-162, 103 Stat. 988, 1000 

(1989).

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Opinions o f the Attorney General in Volume 20

for a balance of $35,000,000” in the IEF, Congress appears to have contemplated 

that it would appropriate money from time to time in subsequent fiscal years to 

replenish the fund to provide for a balance of $35 million. § 404(b)(1). Indeed, 

in subsequent years, Congress has appropriated monies that have totalled far more 

than $35 million. Congress appropriated $35 million to the IEF in 1989;3 $6 million in 1993;4 and $75 million in 1994.5

Section 404(b)(2)(B) states that “ [n]ot more than $20,000,000 shall be made 

available for all localities under this paragraph.” “ This paragraph” refers to section 404(b)(2)(A), which states that “ [f]unds which are authorized to be appropriated by paragraph (1), subject to the dollar limitation contained in subparagraph 

(B), shall be available” for the three purposes for which reimbursement to states 

and localities is permitted. The reference in that provision to “ paragraph (1),” 

in turn, refers back to section 404(b)(1), the provision that anticipates appropriations in an unlimited number of subsequent fiscal years. Moreover, section 

404(b)(1), by its terms, provides that the monies appropriated to the IEF are “ to 

be used to carry out paragraph (2),” (for state and local assistance to the Attorney 

General) in addition to the specified uses in the case of an emergency declared 

by the President.

Because sections 404(b)(1), 404(b)(2)(A), and 404(b)(2)(B) are so intertwined, 

they must be read together as part of Congress’s overall plan to establish an ongoing fund into which it would appropriate monies from time to time in any fiscal 

year it deems appropriate, to be used by the President and Attorney General for 

specified purposes. See SEC v. Sloan, 436 U.S. 103, 121-23 (1978). We believe 

that the language of section 404 is properly interpreted to provide that the $20 

million is available in any fiscal year when the IEF’s balance permits, and not 

just one time during the life of the IEF.6

Although we conclude that this construction is the most sensible reading of 

these provisions of section 404, we acknowledge that the question is not free 

from doubt because the provisions are less than explicit. Congress tied sections 

404(b)(2)(A) and (B) to section 404(b)(1), thus indicating its intent that the $20 

million be available for fiscal year 1991 and in any number of subsequent fiscal 

years. But it did not expressly state that the availability of the $20 million for 

states and localities is annual. Viewed in isolation, the phrase in section

3 See Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1990, 

103 Stat. at 1000.

4 See Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1994, 

Pub. L. No. 103-121, 107 Stat. 1153,1161 (1993).

5 See Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1995, 

Pub. L. No. 103-317, 108 Stat. 1724, 1732 (1994). In 1995, Congress rescinded $45 million of that $75 million 

appropriation. Emergency Supplemental Appropriations and Rescissions for the Department o f Defense to Preserve 

and Enhance Military Readiness Act of 1995, Pub. L. No. 104-6, 109 Stat. 73, 83.

6 W e note that the Office o f the General Counsel, Office of Management and Budget, also interprets section 404 

lo make the $20 million for state and local assistance available on an annual basis. Telephone conversation between 

Teresa W ynn Roseborough, Deputy Assistant Attorney General, Office o f Legal Counsel, and Rosalyn Rettman, 

Associate General Counsel, Office of Management and Budget (Jan. 19, 1996).

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Immigration Emergency Fund

404(b)(2)(B) that “ [n]ot more than $20,000,000 shall be made available for all 

localities” might be read to put an overall limit on the amount of monies going 

to states and localities. However, as we explain above, when the statutory limitation is viewed in its entirety — “ under this paragraph” — and in context with the 

necessary references to other pertinent parts of section 404, it is most reasonably 

interpreted to provide for annual availability.

To the extent some ambiguity in the statute exists, the issue is resolved by 

the legislative history on the establishment and functioning of the fund. A report 

accompanying H.R. 4300, 101st Cong. (1990), the enabling legislation for the 

IEF, states that:

Under current law, the President must declare that an immigration 

emergency exists before any amounts in the fund can be spent. H.R.

4300 would require that amounts in the fund up to $20 million 

annually be used to reimburse state and local governments if the 

number of asylum applicants has increased by 1,000 during any 

calendar quarter after January 1, 1989.

H.R. Rep. No. 101-723, pt. 1, at 86 (1990) (emphasis added), reprinted in 1990 

U.S.C.C.A.N. 6710, 6766. This language demonstrates that Congress intended the 

$20 million for states and localities to be available annually, not just one time 

during the life of the IEF. Thus, it supports our conclusion that under the most 

reasonable reading of the statute, the $20 million available for states and localities 

under section 404(b)(2)(B) of the Immigration and Naturalization Act is available 

on an annual basis.

TERESA WYNN ROSEBOROUGH 

Deputy Assistant Attorney General

Office o f Legal Counsel

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