Angelo Paparelli on Dysfunctional Government

Trying Not to Sip the Immigration Kool-Aid

The Office of Ombudsman (Ombudsman) to U.S. Citizenship and Immigration Services (USCIS) has just released an outstanding 2009 Annual Report to Congress.    The culmination of an especially ambitious and successful year of several spot-on recommendations, the Report focuses a laser beam on the many shortfalls in USCIS's performance. 

Among the Report's many worthy insights, the Ombudsman cites numerous customer-service lapses:

• USCIS has been forced to fund day-to-day operations through the ebb and flow of filing fees rather than by Congressionally appropriated sums (this includes the $491 million dollar contract with IBM now funded solely by Premium Processing fees to pay for the agency's electronic "Transformation" initiatives which will not begin to bear fruit until February, 2011 and may yet "incur substantial additional costs").  
• USCIS has not moved to enable the scanning of paper documents or the online payment of filing fees.
• USCIS has endorsed the National Customer Service Center (NCSC) adoption of a call-center scripting approach that relies on canned and unhelpful responses (Tier 1) and a rotating crew of USCIS Information Officers who lack access to agency records (Tier 2) to address egregious delays and deficiencies in USCIS's performance.
• USCIS has not met its self-imposed targets for reductions in average processing times for all categories of petitions and applications for immigration benefits.

The work of the Ombudsman is a godsend, but not a deus ex machina.  With altogether too much toleration and not enough outrage for my taste, the Ombudsman's report restates longstanding USCIS problems but does not condemn the lack of significant forward movement.  Why doesn't the Report seriously challenge: 

• The flawed premises and exaggerated conclusions of the agency's H-1B fraud and abuse survey? 
• The fact that the second-largest category of new hires involved "fraud and security positions" during the first stage of expanded USCIS hiring" funded by user fees that should be earmarked for adjudication? 
• The manifest lack of accountability of adjudicators who flout policy memoranda issued by USCIS? or 
• The USCIS assertion of legitimacy and reasonableness that the precious right of employment authorization shoul ordinarily take 90 days to grant?
• The lack of meaningful appeal rights and right to legal counsel for all parties in interest (including the foreign citizen applicants) in all categories of immigration-benefits requests? 

According to a knowledgeable Congressional insider who was present at its creation, the Office of Ombudsman -- beyond its stated statutory mission of "assist[ing] individuals and employers in resolving problems" with USCIS -- was intended to take the burden of immigration-related constituent services off the backs of the Senators' and Representatives' staffs. The problem with offloading constituent complaints to the Ombudsman is that it takes pressure off Congress to hold USCIS accountable. Why hold an oversight committee hearing (Members of Congress might say candidly to their visages in the mirror) when we can read and forget each annual Ombudsman's report?

The time for tolerance is past due.  Righteous indignation is needed now.  Congress must bite the bullet and fund USCIS on a long-term basis with appropriated funds. It should also expand the Ombudsman's authority so that it is "Tri-Bureau" in scope, and covers all three agencies (USCIS, ICE and CBP) that together interpret and apply the immigration laws within Homeland Security. Indeed, if the Obama Administration and Congress are serious about the proper functioning of the federal immigration system, they would also create Offices of the Ombudsman for the Departments of Labor and State, and place a "Tri-Department" Ombudsman on top, so that stakeholders really have a "seat at the table" for comprehensive immigration reform.

Meantime, the USCIS Ombudsman should stop sipping the agency's Kool-Aid. It should conduct a full financial audit of USCIS's application of user fees for purposes within and outside of the adjudication-only mandate of the Homeland Security Act.  It should be directly involved in all aspects of the Transformation program, including contract administration.  It should abide by Immigration and Nationality Act § 452 which confers on the Ombudsman "the responsibility and authority . . . to appoint local ombudsmen and make available at least 1 such ombudsman for each State [emphasis added]." 

Don't get me wrong.  The Ombudsman is performing well a critically important role.  But there is simply too much dysfunction in America's broken immigration system merely to compliment the Ombudsman for a solid, if temperate, report.  

The heavy lifting on comprehensive immigration reform involves far more than merely enhanced border protection, a path to legal status for the undocumented and an orderly system for future worker flows.  It will require a complete overhaul of the government agencies that now mismanage a slew of immigration programs that, if optimally administered, could and should be the rejuvenating lifeblood of our nation.

Immigration Gaming - USCIS Style

The first rule of gambling is that the odds always favor the house. U.S. Citizenship & Immigration Services (USCIS), the unit within Homeland Security tasked with conferring or refusing requests for immigration benefits, has started its own casino of sorts.  And the house, not surprisingly, is winning.

As business and family petitioners have come to hear from their shell-shocked immigration lawyers, USCIS regional service centers (RSCs) have been spewing forth Requests for Evidence (RFEs), Notices of Intent to Deny (NOIDs) and Denial Notices faster than a baseball-pitching machine at a funhouse.  Have companies and families all of a sudden become less qualified en masse for immigration benefits than in prior years?  The odds are that the answer is no.  Rather, the rules of play have changed, but the house's management has not officially announced them.

In short, boilerplate bad-news correspondence, especially in the employment-based visa categories of the H-1B, O-1 and L-1, set forth new rules, typically without citation to authority, under which what once was clearly approvable is now suspect, disbelieved and deniable or denied.  The USCIS adjudicators issue their edicts in ipse dixit fashion, ignoring statutes, legislative history, regulations and decades-old headquarters policy guidance. 

Seasoned observers are puzzled at the reasons prompting this sea change in applying the rules of play.  Some suspect that agency personnel, so reliant on user fees for day-to-day operations, may act (even if only subconsciously) in the knowledge that denials lead to more fee revenues from motions to reopen and administrative appeals.  The cynics point to the recent USCIS reinstatement of its Premium Processing Service for most employment-based immigrant visas, at $1,000 extra a pop, and predict the result to be faster denials and more motion and appeal revenues.

Others doubt that fee-churning is the root cause.  Instead, they point to the foregone conclusion, stoked by a flawed internal report, that fraud and technical violations are rampant.  The meme that fraud is everywhere has spooked adjudicators into suspecting every petitioner, no matter how reputable and worthy, by demanding more and more documentary evidence which is scanned for the smallest inconsistency. The perceived inconsistency then allows the adjudicator to claim that all of the submitted evidence may also be doubted.

But surely cooler heads will prevail, you say.  Undoubtedly, you assume, the Administrative Appeals Office (AAO) will overturn unjustified or unjust decisions. 

It's difficult to be confident that the AAO, another USCIS unit, will reverse decisions of their compatriots.  The AAO publishes no rules of procedure, or statistics on the rate that adjudicator decisions are overturned, and does not require that the "jurists" in this administrative tribunal be admitted to the bar or adhere to a code of judicial conduct.

Moreover, foreign nationals who've been denied immigration benefits in most cases have no legal standing to appeal or be heard, but instead must rely on a sponsoring employer or family member who, as the "petitioner," has the right to appeal.  If the petitioner takes the case to the AAO, USCIS house rules make the stakes for the foreign citizen very high.  If they wait in the U.S. to see whether the AAO overturns the adjudicator's decision, the wait comes with harsh consequences.  During the waiting period, they have no right to work, and worse yet, if the AAO rubber-stamps the RSC adjudicator's decision, the penalty for losing is a determination that the foreign citizen -- merely for waiting in the hope that justice will be served -- is in a condition of "unlawful presence" and (once they leave the U.S.) is barred from returning for anywhere from three to ten years.  The House of USCIS will not apply the unlawful-presence bar, however, if the AAO reverses the adjudicator's denial of immigration benefits.  This may tempt some foolhardy foreign citizens to try and wait out an appeal, however remote the chance of success, in the hope that Lady Liberty and Lady Luck are with them. 

The stakes of justice and the rule of law ought not be so high as to require a ten-year ante.

Iran, Obama, Congress and Immigration: "Hoping for a Little More Audacity"

In the same month that the world commemorates the 20th anniversary of the bloody showdown in China's Tieneman Square, we are again witnessing (this time, through the samizdat of Twitter and YouTube) what may become another defeat for democratic freedoms in a different Asian country, Iran. 

For a sixth straight day, Iranian citizens of every demographic, including a growing cohort of Islamic clerics, have marched in the streets and braved the bludgeon of the militia and the police to protest the outcome of last week's disputed Presidential election. No one can predict the outcome, although Time Magazine suggests four plausible endgames.  As the world watches, Iranians desperately plead for America's help.  A letter to President Obama, circulating in the Iranian-American community (reproduced here in full) from an anonymous writer in Iran, poignantly places in stark relief the urgency and fear of the small "d" democrats of Iran:

Dear Mr. President,

. . .

It is not convincing now to stand by and watch on the pretext that you don’t want to interfere in the internal politics of Iran. Concern is not enough. Watching to see if demonstrations gain momentum is not enough. Interviewing a few conservative analysts is not enough. We are watching but may not be there to judge you when this is over. Will you abide by the dictates of your conscience and take a stance in [favor] of a nation that is at the mercy of a soul-less system? Or will you all stand by and watch only to say, in a decade or two, that you made a grave mistake? I’m pleading to your heart, Barack Obama, because I believe you are sincere. Please say what you mean and mean what you say.  

Sadly, the world hears a tone-deaf President Obama respond with so little empathy that it would surely embarrass his prospective Supreme Court nominee.  Answering a question from the New York Times and CNBC, the president sounded an out-of-character, discordant note by observing on Tuesday that from an American national security perspective, there was little daylight between Iranian President Mahmoud Ahmadinejad and his prime opponent, Mir Hussein Moussavi: 

“Either way,” Mr. Obama said, the United States is “going to be dealing with an Iranian regime that has historically been hostile to the United States, that has caused some problems in the neighborhood and is pursuing nuclear weapons.”

What do the democratic stirrings in Iran and a reticent president have to do with a blog on the dysfunctions of America's immigration system?

Harken back to the fallout from the Chinese Communists' quelling of democracy with tanks and bloodshed in Tieneman Square.  The Congress and the first President Bush took two-and-a-half years to protect the Chinese citizens who feared return to the Peoples Republic by passing the Chinese Student Protection Act of 1992.  That law allowed a generation of primarily young Chinese to obtain permanent residence in the U.S., and probably contributed significantly to the decade of innovation and prosperity that followed.  However President Obama decides to respond to events on the ground in Iran, the Congress should immediately hold hearings and speedily enact legislation, much like CSPA '92, that would allow the thousands of Iranian citizens now in the U.S. to apply for permanent residence. 

Secretary of State Hillary Clinton could also take a page from history by easing the standard for granting U.S. nonimmigrant visas to Iranians as State did when many pro-Western Iranians were fleeing Iran with the fall of the Shah.  As memory serves, State instructed consular officers to apply the requirement that a visa applicant must intend to return to the person's country of residence by considering, in the case of Iranians, whether the person would be likely to return to Iran if and when the political instability there were to ease.

In short, President Obama had it right when he offered his Persian New Year message to the people and leaders of Iran:

The United States wants the Islamic Republic of Iran to take its rightful place in the community of nations.  You have that right -- but it comes with real responsibilities, and that place cannot be reached through terror or arms, but rather through peaceful actions that demonstrate the true greatness of the Iranian people and civilization.  And the measure of that greatness is not the capacity to destroy, it is your demonstrated ability to build and create.

So on the occasion of your New Year, I want you, the people and leaders of Iran, to understand the future that we seek.  It's a future with renewed exchanges among our people, and greater opportunities for partnership and commerce.  It's a future where the old divisions are overcome, where you and all of your neighbors and the wider world can live in greater security and greater peace.

The time for actions to back up these words, by the President and Congress, is now. Or, as Bill Maher laid down in his New Rules segment last week:

I'm glad Obama is president, but the "audacity of hope" part is over. Right now, I'm hoping for a little more audacity.

Immigration Agency Denies Monk Green Card for Unauthorized Buddhism

Few people would ever confuse the sultry Blanche DuBois of Tennessee Wiliams' Streetcar Named Desire with a Buddhist monk.  Despite their very different appearances and stations in life, they share one survival skill.  As Blanche explained to the play's protagonist, Stanley Kowalski, Blanche (and so too the follower of Siddhartha Gautama) have "always depended on the kindness of strangers." 

As the Wall Street Journal reported on June 9, however, the U.S. Citizenship and Immigration Services (USCIS) apparently equates the acceptance of kindness from strangers with "unauthorized employment" ("Buddhist Monk Faces Worldly Green-Card Matters - Mr. Jomthong, Who Says His Job Is to 'Promote Peace and Harmony,' Gets Ensnared in U.S. Immigration Bureaucracy [subscription required]").

In effect, this is the conclusion drawn earlier this year by an immigration adjudications officer at the USCIS Nebraska Service Center (NSC) in denying a green card to Venerable Phra Bunphithak Jomthong, a Buddhist Monk assigned to the Wat Buddhapanya Temple in Pomona, California. The NSC refused a green card to Ven. Jomthong, who long ago made perpetual vows of voluntary poverty and the eschewal of money, because -- as the adjudicator claimed -- the monk had been "remunerated since [his] admission [to the U.S.], albeit on a modest, non-salaried basis".  The modest remuneration he receives is the food and subsistence needs that members of his faith community give him.

Without solicitation of money on Ven. Jomthong's part, disciples of Buddhism who attend temple services voluntarily provide him with what we learned in law school is a gift. The Internal Revenue Service defines a gift as "[a]ny transfer to an individual, either directly or indirectly, where full consideration (measured in money or money's worth) is not received in return."  For a gift to be legally effective, there must be "donative intent" (the conscious desire to make a gift) and the gift must be completed. A completed gift is one "in which the dominion and control of the property is placed beyond the donor's reach." 

Because the acceptance of an unsolicited gift is not "employment" under the Immigration and Nationality Act (INA) or USCIS regulations, my Seyfarth Shaw colleague, Catherine Meek, and I took on the pro bono representation of Ven. Jomthong.  We filed a complaint and petition for review in federal district court in Los Angeles asking the court to put the burden on the government (as required under the Religious Freedom Restoration Act) to demonstrate a compelling governmental interest in denying the monk a green card, and to show that the green card denial is the least burdensome way to enforce the government's immigration policies.  The government has about a month to answer the federal court complaint and petition for review. Trial in district court is set for August 18. 

After the complaint was filed, a Supervisor at the NSC issued Ven. Jomthong a Notice to Appear before an immigration judge for a removal hearing (at a date and time to be specified in the future).  

Blanche (however unjustly) ended in an insane asylum. Let's hope Ven. Jomthong fares much better. Stay tuned.

Immigration Gaming in Las Vegas - Day 1 of the AILA Annual Conference

It's Groundhog Day in Las Vegas, as immigration attorneys convene for the first day of the annual conference of the American Immigration Lawyers Association -- for many of us, regrettably, a victory of hope over experience.  This is not intended as a smackdown of AILA.  On the contrary, AILA has assembled an all star cast of speakers and is offering a collection of  cutting-edge immigration topics. 

Rather, the reference to the film is more a commentary on the annual uttering of unhelpful, straight-faced responses by most (but not all) of the agency officials on the dais to the pressing concerns of the lawyers on behalf of their clients. 

As regular AILA conference attendees can attest, the typical government representative's spiel involves an unctuous appreciation of the importance of meeting with lawyers to share information.  This is followed by the recognition that while there are problems, the situation is not as bad as it once was.  The recitation then ends with the assurance that a regulation or policy memorandum addressing and resolving the lawyers' concerns will be issued in the near future, but meantime the government representative is not at liberty to suggest what the new regulation or memorandum will say or when it will be published.  As the sage American philopher -- Yogi Berra -- would say, if he were here: "It's like déjà vu all over again." 

The furor du jour on the first day of the conference is about the proliferation of government requests (mostly from U.S. Citizenship and Immigration Services [USCIS]) for additional evidence (RFEs).  The RFEs often run to several pages.  A comparison of the RFEs reveals that many are boilerplate demands made without reference to the facts in the particular case.   As reported today at the AILA conference, even publicly traded, long established, and financially sound companies are ordered to produce voluminous evidence proving their existence and viability or risk denial of their petitions. 

The viral spread of extravagant RFEs is an effront to USCIS Headquarters policy (as reflected in a Feb. 16, 2005 policy memorandum):

A RFE [sic] is most appropriate when a particular piece or pieces of necessary evidence are missing, and the highest quality RFE is one that limits the request to the missing evidence. Generally it is unacceptable to issue a RFE for a broad range of evidence when, after review of the record so far, only a small number of types of evidence is still required. “Broad brush” RFEs tend to generate “broad brush” responses (and initial filings) that overburden our customers, over-document the file, and waste examination resources through the review of unnecessary, duplicative, or irrelevant documents. While it is sensible to use well articulated templates that set out an array of common components of RFEs for a particular case type, it is not normally appropriate to “dump” the entire template in a RFE; instead, the record must be examined for what is missing, and a limited, specific RFE should be sent, using the relevant portion from the template. The RFE should set forth what is required in a comprehensible manner so that the filer is sufficiently informed of what is required.

As the first day of the AILA conference drew to a close, I bumped into a podcaster (Dan Kowalski, Editor of Bender's Immigration Bulletin).  He noticed a chagrined look on my face and asked what was bothering me.  Here then is my podcasted rant on unruly RFEs, the unsupervised adjudicators who issue them and the agency officials who defend the practice from the podium rather than uphold their own headquarters policies.

Don't Ask, Can't Tell: Immigration Inequality for Same-Sex Families

Family reunification, at least as far back as the Quota Law of 1921, has been and remains today a cornerstone of America's immigration laws. Yet, one growing segment of family immigration is disfavored by operation of law. These are the families of same-sex life partners who must live under a legal system that imposes family-separation rather than unity.

Section 3 of the Defense of Marriage Act (DOMA) provides:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word "marriage" means only a legal union between one man and one woman as husband and wife, and the word "spouse" refers only to a person of the opposite sex who is a husband or a wife.

DOMA prevents America's immigration officials from recognizing marriages and civil unions that are legal in the state or nation where a same-sex couple is wed or the civil union is registered. As a result, a U.S. citizen may not petition the immigration authorities to grant a green card to a foreign life partner of the same sex, no matter the length of the relationship or the couple's level of commitment to each other.

This puts the United States out of synch with the 19 nations that recognize same-sex life partnerships for immigration purposes: Australia, Belgium, Brazil, Canada, Denmark, Finland, France, Germany, Iceland, Israel, the Netherlands, New Zealand, Norway, Portugal, South Africa, Spain, Sweden, Switzerland, and the United Kingdom.

Inexplicably, while America prohibits same-sex family unity for green-card purposes, it allows committed life partners to come to this country, and remain for sometimes prolonged periods, as visitors, if the foreign life partner can prove that s/he won't stay permanently.

Don't ask (me to explain), because I can't tell (why).

Well fortunately, for the first time ever, the Senate Judiciary Committee, at the direction of its chair, Sen. Patrick Leahy, will convene a June 3 hearing on a bill that would end this injustice, the Uniting American Families Act of 2009 (UAFA).

UAFA provides the same benefits under the Immigration and Nationality Act (INA)as are granted to opposite-sex spouses. It grants these benefits to the permanent partner of a U.S. citizen, defining the phrase to mean "an individual 18 years of age or older who (A) is in a committed, intimate relationship with another individual 18 years of age or older in which both parties intend a lifelong commitment; (B) is financially interdependent with that other individual; (C) is not married to or in a permanent partnership with anyone other than that other individual; (D) is unable to contract with that other individual a marriage [recognized as valid under the INA]; and (E) is not a first, second, or third degree blood relation of that other individual."

Sometimes the ground beneath our feet shifts and we can't be sure why. This time it may just be that the stunning tectonic movement is caused by the marching feet of the supporters of civil rights for binational gay and lesbian couples.

Don't ask, don't tell; just call your federal legislators and urge them to enact UAFA.

 ___________

Blogger's note:

In June, I'll be attending the annual conferences of the American Immigration Lawyers Association (AILA) in Las Vegas and the American Council for International Personnel (ACIP) in Arlington, Virginia. If you plan on being at either event, please share with me your personal pet peeves about America's dysfunctional immigration system and offer your best ideas on how to fix things. I'm all ears.

Angelo Paparelli

"All along the [Immigration] Watchtower"

On the heels of my May 8 post (Do Immigration Fee Revenues Drive Justice at the USCIS?), the Office of the Ombudsman to U.S. Citizenship and Immigration Services (USCIS) issued a May 15 report criticizing the unfairness and inconsistency across USCIS offices nationwide of the agency's procedures for getting a seasoned officer to take a second look at an adjudicator's erroneous decision or action.  The report, entitled "Motions Matter: Improving the Filing and Review Process for Motions To Reopen or Reconsider," affirms the point that "clear Service errors" are widespread yet unresolved problems:

Rectifying clear Service error is a recurring customer and stakeholder concern. Filing and paying [$585] for a formal motion to reopen to correct clear Service error is costly and potentially time consuming. In addition, because refund procedures vary by office, formal motions may unfairly shift the financial burden to correct a clear Service error to USCIS customers.  [Footnotes omitted.]

The Ombudsman, especially under the laudably activist reign of Michael Dougherty (who resigned recently to take a position in the private sector), has played an important role at what the Anderson Cooper 360° blog might call, "keeping them honest."  But even the most vigilant and persistent Ombudsman cannot replace the oversight roles of Congress, the President and the courts. 

Bob Dylan in All Along the Watchtower could well have been thinking of USCIS when he metaphorically described the suffering that results from organizational misbehavior: 

"There must be some way out of here" said the joker to the thief "There's too much confusion, I can't get no relief." 

The Roman poet, Juvenal, asked the right question:

"Quis custodiet ipsos custodes?" (Who regulates the regulators?). 

More recently, in an aptly titled New York Times essay, "The Way We Live Now: Diminshed Returns,"  Harvard Business School professor Niall Ferguson, although speaking of the financial crisis, could also have been describing the failings of the immigration bureaucracy when he noted: 

"The reality is that crises are more often caused by bad regulation than by deregulation." [Emphasis in the original.]

Comprehensive immigration reform (including essential reforms to the system of family-related and employment-based legal immigration) -- no matter how smartly enacted -- will be sent on a fool's errand if Congress and the Obama Administration do not also reform the broken management system at all of our federal immigration agencies, and then allow the jurisdiction-stripped courts to be revested with authority to overturn agency error and wrongdoing.     

A Silent Bronx Cheer: Hillary to "Streamline the Visa Process"

There was no one in the bleachers at the new Yankee Stadium to offer a Bronx cheer to Secretary of State Hillary Clinton on May 13 when she promised to "streamline the visa process" during her commencement address to New York University students:

[W]e should bring more qualified students from other countries to study here. NYU provides a prime example of what international students can bring to a campus and how they can benefit themselves and their countries. Over 700,000 international students came to the United States last year, and NYU had the second largest number of any school in the country. [Applause.] Now, the benefits from such exchanges are so great that I am committed to streamline the visa process – [applause] – particularly for science and technology students so that even more qualified students will come to our campuses in the future.

As this quote from the State Department transcript of her speech shows, she did receive applause from the audience in the more expensive seats.    Streamlining and efficiency, while laudable, are not always virtues, however, if these outcomes are not blended with fairness. 

In FY 2008, the State Department's consular officers denied 1,481,471 nonimmigrant visa (NIV) applications under Immigration and Nationality Act (INA) § 214(b) (failure to establish entitlement to the requested NIV classification).  While 19,837 (1.3%) of these refusals were overcome, almost 99% of the refusals prevented possibly deserving applicants from coming to the United States.  [Note:  These do not include the 64,516 refusals for specific grounds such as criminal conduct, public charge, material support of terrorism, etc.]

Why is this a big deal?  The 99% rate of § 214(b)refusals is important because:

• Consular officers are not given sufficient resources to spend more than just a minute or two to consider whether a visa applicant truly deserves to receive a visa. 

• INA § 291 requires a visa refusal if the applicant "fails to establish to the satisfaction of the consular officer that he is eligible to receive a visa." 

• Under the doctrine of "consular nonreviewability" (which more accurately should be dubbed consular absolutism) as interpreted by the federal courts and the State Department, decisions by consular officers on questions of fact (on which most visa refusals turn) are not reviewable by President Obama, Secretary Clinton or the Supreme Court.

In other words, imagine that you had one or two minutes to establish that you deserve a U.S. nonimmigrant visa.  Your burden can only be met if it is "to the satisfaction of the consular officer." No one but that officer has the power to decide.  Streamlining this already abbreviated decision does not make for good foreign relations unless elements of fairness are introduced into the process.  This is a job for President Obama, Secretary Clinton and Congress. 

We can enact comprehensive immigration reform in all of its currently proposed versions, but unless the visa application and decision process is made more just, our foreign policy will continue to create "Ugly Americans" of our inadequately supported and excessively empowered consular officials.

Do Immigration Fee Revenues Drive Justice at the USCIS?

Immigration lawyers, including this blogger, have attended liaison meetings with the USCIS California Service Center and its predecessor agency, INS, for decades.  These meetings have been periodically convened (typically on at least a quarterly basis) since the agency was first housed, decades ago, in San Ysidro CA just inside the U.S. border with Tijuana (the facility was then known as the INS Western Adjudication Center -- hence the answer to the trivia question of why receipt numbers for this office begin with "WAC"). 

In the 1980s, lawyers and agency leaders alike could look out the WAC's window at the border and literally see foreign citizens assemble, as dusk approached, preparing to hop the easily surmounted fence.  Yet, even then INS officials could appreciate the difference between legal immigration and illegality.  We were allies in a common effort to make the legal immigration system work fairly. 

If trends developed suggesting problems in adjudications or clear Service errors, the old INS and many previous CSC directors and assistant center directors would invite the submission by immigration lawyers of sample cases so that supervisors could maintain quality control. Indeed, one of the grounds for requesting and receiving an expedited adjudication, according to the CSC policy guidelines, was "clear service error" in a prior decision. 

At Wednesday's CSC "external stakeholders" liaison meeting, however, the published answer to item # 2 on the formal agenda showed that the times clearly have changed.  Citing 8 C.F.R. § 103.5(a)(5) which authorizes the USCIS to reopen or reconsider a decision at the instance of the agency adjudicator, item # 2 asked how an applicant for an immigration benefit could invoke the regulation where the initial decision involves an obvious mistake by USCIS.  The succinct answer -- file a motion with the proper fee.  The fee for a motion to reopen or reconsider is $585. 

To be sure, a footer on the published minutes made clear that the answers provided are merely the individual opinions of the officials present at the liaison meeting and do not necessarily reflect the policies and interpretations of USCIS. Still, in these straitened times, it sure seems like price gouging when an agency with the word "Services" in its title appoints officers who cannot acknowledge their own clear mistakes without shaking down the public by demanding almost six Ben Franklins.

Immigration's "Animal Spirits"

The dismal state of the economy has caused economists to revive the Keynesian notion of "animal spirits," the concept that the economy is not merely understood through the study of charts, metrics and data, but also from psychological factors that move people to invest, build, lend, buy and sell. A new book by economists George Akerlof and Robert Shiller, Animal Spirits: How Human Psychology Drives the Economy, and Why It Matters for Global Capitalism, drills down and expands on the concept.  Akerlof and Shiller offer five psychological motivations that can explain the workings of the economy: "confidence, corruption and bad faith (or 'snake oil'), fairness, money illusion, and stories." 

Insight into America's dysfunctional immigration system can also be gained through these five prismatic animal spirits:

Confidence:  Our citizens, and the foreign nationals and businesses seeking entry to America, must be given reason to believe that the system functions.  Today, the immigration system functions like a metal Rube Goldberg contraption left too long in the rain.  It creaks, squeaks, shakes and shudders, but does not produce good outcomes for far too many people.

Corruption and Bad Faith:  The prize of the American Dream, regrettably, is far too alluring and precious for a substantial number of people on all sides of the immigration debate.  Just as there are people willing to break the rules to get in, there are people with sinister motives within the bureaucratic system, in the media and in hate groups who cross the line of legality or pour snake oil on a gullible populace, both domestic and foreign, to prevent the system from working. They are like the tax oppositionists who espoused the elimination of government social welfare programs by "starving the beast."

Fairness:  There is little equity in the system today.  Skimpy quotas punish those who wait for immigration benefits to arrive.  Adjudication procedures fail to provide legal standing to all parties in interest, e.g., in an adjustment portability case, the new employer and the foreign applicant have no meaningful way to respond to a request for evidence sent to the former employer. Visa applicants receive about a minute or two to carry the difficult burden of establishing eligibility to come  to the U.S. before the consular officer makes a snap judgment and moves on to the next person in line.

Money Illusion:  The unresolved question of whether immigrants grow the economy and create jobs or snatch work that Americans are willing and able to perform is a form of loco-weed that prevents one from seeing the other side of the argument, when in truth each proposition is sometimes true and sometimes false.

Stories:  Yes, stories, at bottom, are really what immigration is all about.  Human beings living lives that are swept up, and sometimes swept away, by the failure to fix our broken immigration system.

* * * * *

Until the five animal spirits of immigration are understood, and intelligently addressed, comprehensive reform efforts, however worthy and urgently needed, will founder.