New Year Resolutions for Immigration Officials

Last week, a client died unexpectedly, and two government officials tasked with administering the immigration laws retired after long careers of honorable service. 

The client, a renaissance man of many talents, was remembered by a throng of mourners representing a wide cross-section of the community -- academia, local government, the arts, family and friends.  I saw him two weeks before he died.  He was joyful because his long-awaited administrative appeal had finally produced a favorable decision and a remand.  We both had truly expected that he'd soon enjoy immigration justice after many years of waiting.   His death underscored the truth of the maxim that justice delayed is justice denied.

The retiring immigration officials represented an increasingly rare genus of civil servant.   I wrote a farewell note to one in words that could have applied equally to both:  "You have always been my model of the superlative public official – courteous, helpful, responsive, knowledgeable and friendly." 

Neither of these officers were pushovers.  Both understood the immigration laws, applied them fairly, knew how to listen, kept an open mind, and took time to read an application for an immigration benefit carefully to identify the strengths and weaknesses of the case.  They were not afraid to reach a decision within a reasonable period of time, or to reconsider if new evidence or additional legal arguments were offered.  Most of all, they reflected a tradition of even-handedness and timely justice best reflected in a memorandum from Durwood Powell, Jr., a long-retired Regional Commissioner of the legacy agency, Immigration and Naturalization Service.

Sad to say, however, too many of today's breed of immigration official display a different set of priorities.  Haunted by fear that he or she will be second-guessed and reprimanded for granting an immigration benefit to an undeserving or possibly dangerous applicant, officers are wary and chary of saying "yes."  They tend to know the fine points of civil service rules governing their employee benefits, but are less zealous in mastering the admittedly complex immigration laws or publishing regulations that would help the public understand the law.  Speed of decision-making is espoused as an important value, but too often honored more in the breach than the observance.  Many look for ways to say "no" even if the effort at times produces specious reasoning.  Others build new hierarchies of power, whether authorized by statute or not.  There is the Fraud Detection and National Security Unit of United States Citizenship and Immigration Services, growing by leaps and bounds with the fuel of immigration user fees paid by legitimate and deserving applicants.  There is an overlapping group at USCIS headquarters and the regional service centers dubbed the "Threat Assessment" team. 

Ironically, the very existence of immigration delays and artificial obstacles created by the ferreters of perceived fraud and the risk-averse adjudicators produces the results they fear.  According to a Homeland Security Department threat assessment, "[l]ong waits for immigration . . . will cause more foreigners to try to enter the U.S. illegally."

Tossing cynicism to the wind, I hereby offer a few New Year resolutions for immigration officials to consider adopting:

1. I will decide all cases based on the evidence of record after having read the file carefully and applied the immigration laws, regulations and agency policy memorandums in a spirit of fidelity to Congressional intent and just compassion for the people and businesses who will be affected by my decision.
2. I will not issue requests for evidence merely as a means of pushing a case off my desk. 
3. I will decide cases promptly and remember that justice delayed is justice denied.
4. I will not judge the case by the size of the company or the nationality of the applicant.
5. I will not issue decisions that contradict settled agency policy guidance unless a new law or a novel set of facts justify such action.

6. When I am duty bound to deny a case, I will provide a well-reasoned and detailed explanation of the grounds for my decision.

Comments

[Angelo Paparelli]

Dear Mr. Ho:

You make some interesting points. We apparently agree that immigration fraud is evil and must be eradicated. We also agree that ICE has refused to ferret out fraud, thereby creating an inducement for USCIS to step into the breach.

But I’m also concerned about “fidelity to Congressional intent.” Under the Homeland Security Act (HSA), which created DHS, USCIS is only charged with responsibility to adjudicate applications and petitions for immigration benefits. The HSA confers immigration law investigation and enforcement duties on other units within DHS (now ICE and CBP). If ICE shirks its congressionally appointed duties, this is no justification for USCIS to engage in mission-creep (or, more precisely, extralegal overstepping of HSA boundaries), by pursuing immigration fraud and charging an unknown portion of users fees for this expense to law-abiding applicants and petitioners.

As for AILA’s role in fraud detection and prevention, I suspect you may not perceive the extent to which immigration lawyers play a laudable and active role in this area. AILA, as a voluntary specialty bar with no disciplinary authority, cannot dictate how immigration lawyers discharge their ethical and professional responsibilities. Immigration attorneys under their respective state bar codes of ethics may or may not be authorized to report fraud to federal government agencies. Generally, state bar ethics rules prohibit the reporting of fraud to administrative agencies and tribunals. But rest assured that would-be fraud perpetrators are regularly shown the exit door at the law offices of immigration attorneys. All that we are typically allowed to do is to decline the representation and seek to dissuade the prospective ne’er-do-well to refrain from law-breaking. We do that all the time; we just cannot and therefore do not report it to the government.

[tim ho]

A well done insightful piece. I fear the counselor understates the forces that shaped need and creation of the anti-fraud units. The hostile takeover of INS enforcement which is now apart from DHS generated situations like the news report of thousands of "religious workers" whose visa petitions listed vacant NY tenement houses as locations of employment. The refusal of ICE to lend a hand to ferret out fraud must have converted New York into another free fraud zone.
A separate yet not so question: Will the coming age of amnesty include as many millions of ineligible petitioner granted citizenship as was our "amnesty of a lifetime" and SAW experiences?

Again, the core message of Mr. Paparelli's message is right on. Now if AILA could only help BCIS ferret out fraud.....