The Path

From pilot to successor agency

The long-term goal is for ISAE to replace ICE. That takes an act of Congress, a multi-year transition, and evidence from a pilot that the model works.

The legal reality

ICE was created by statute: Section 442 of the Homeland Security Act of 2002 established the bureau later renamed ICE (2003, 2007).^[48] ^[49] The same Act abolished the INS^[50] and combined all or part of 22 agencies into DHS.^[51] Congress can restructure immigration agencies, and it is Congress that has done so.

The DHS Secretary can reorganize units with 60 days’ notice, but that authority “does not extend to the abolition of any agency … established or required to be maintained by statute.”^[52]

The executive can do now

Set enforcement priorities (United States v. Texas, 2023)^[53]
Release with conditions under INA § 236(a)^[32]
Case-by-case parole^[54]
Individual deferred action with work authorization^[23]

The executive cannot do

Create a new status or path to residence or citizenship^[25]
Waive unlawful-presence bars^[55] or mandatory detention^[27]
Run large categorical programs without serious litigation risk (DAPA, DACA, Keeping Families Together)^[56] ^[57]

Congress must do

Create earned legalization: a registry update or conditional status such as the Dignity Act^[46] ^[42]
Establish ISAE as a successor agency
Redirect appropriations

Two phases

Phase 1: Prove it (years 1–3)

Pilot in three to five ICE areas with established legal-service and community partners, under existing ATD authority, discretionary release, parole and deferred action. Randomized or matched comparison where feasible, pre-registered metrics, independent evaluation, and quarterly public results. If the results are weak, the case for a successor agency weakens, and we say so in advance.

The pilot pauses for review on any confirmed firewall violation, unremedied biometric threshold breach, security breach, significant deterioration in public safety versus the comparison group, or a court ruling removing its legal basis.

Phase 2: Legislate (after positive evaluation)

Congress amends HSA § 442 to establish ISAE as a DHS component with an integration mission: community supervision, the Green Path, coordination with USCIS on any status Congress creates, and lawful removal as the last step in a fair process. Serious-crime enforcement remains as a smaller, separately accountable unit (Option A), or criminal investigations move to a separate component or DOJ (Option B). In 2018, 19 HSI special agents in charge asked to be separated from deportation work.^[58]

Transition design

Workforce: ICE reports it grew from about 10,000 to about 22,000 personnel in 2025 (agency figures).^[59] Treat that workforce as an asset: guaranteed transfer of positions (as 5 U.S.C. § 3503 already requires),^[60] paid retraining for case management and field enrollment, protected grade and pay for a defined period, and a voluntary enforcement career track.
Budget: the 2025 ICE funds are largely available through FY2029.^[1] Redirecting any of it requires Congress, phased to measured reductions in detention use, not fixed dates.
Oversight: an independent Inspector General function, a statutory privacy and civil-liberties officer, a community advisory board, and quarterly public reporting.
Sunset: an independent GAO evaluation at year three and reauthorization required at year five.
Humility: GAO put DHS’s own creation on its High-Risk List in 2003.^[61] A successor agency must be phased, funded and monitored with the same seriousness.

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