Angelo Paparelli on Dysfunctional Government

Finger's Crossed: Will Immigration Detention Move in a More Humane Direction?

It took a scathing study ("A Broken System: CONFIDENTIAL REPORTS REVEAL FAILURES IN U.S. IMMIGRANT DETENTION CENTERS") by the National Immigration Law Center, the ACLU of Southern California, and the law firm of Holland & Knight, to accelerate disclosure of what may have been already in the works.  Today, U.S. Immigration and Customs Enforcement (ICE) announced that it is undertaking a comprehensive overhaul of its inhumane system for detaining foreign citizens alleged by ICE to have violated the immigration laws. 

A new Office of Detention Policy and Planning (ODPP), headed by Dora Schriro, will be responsible for designing a new civil detention system that, thankfully - if the announcement can be believed, will move away from the former penal model criticized in the "Broken System" report.  According to the ICE fact sheet released today, "[w]hen assessing where to locate facilities, ODPP will consider access to legal services, emergency rooms and transportation hubs, among other factors."  Previously, ICE and its predecessor, the old INS, had played a diabolical game of "Chutes and Ladders" by shuttling detainees to facilities far from family and from access to experienced immigration defense counsel. 

ICE will be aided in this new effort by a new IT improvement strategy, funded to the tune of $24.9 million in FY 2009, known as the "Detention and Removal Operations Modernization" (DROM) program.  As the Obama Administration's new IT Dashboard reveals:

The major goal of DROM is to create an efficient system and a streamlined process to minimize the length of detention, increase bed utilization and increase removals of aliens ordered removed from the U.S. Areas targeted as part of the Development, Modernization or Enhancement (DME) effort are: a) Real-time dynamic reporting on statistics and metrics for events from apprehension through the detention and removal process (aggregate and individual aliens); b) Removal management including alien case status information from apprehension to removal (e.g. awaiting credible-fear review, awaiting travel-document issuance); c) Detainee Management providing detainee tracking, property logging, and bed assignment data; d) Bed-space Management including ability to make reservation and cancellations and show availability of beds by location, relative likelihood of availability, and alien characteristic or classification; and e) Transportation management for efficient scheduling and routing detainees for detention and removal.

Can it really be true? Will immigrants alleged to have committed civil immigration violations be housed more humanely, with protection of their dignity, sensitivity to family needs, and access to law libraries and legal counsel assured? I keep my fingers crossed, in the hope that ICE Secretary John Morton wasn't crossing his fingers when he made today's announcement.

The Distressed Bearer of Bad Immigration Tidings

I've always loved to travel, especially to foreign lands.  In law school, I devoured all the courses that dealt with international law -- public international law (involving relations between countries and international organizations), private international law (dealing with transnational contracts between individuals or businesses), conflicts of laws, and a seminar on international business transactions.  Those classes -- I thought -- would provide my ticket to see the world.  After a stint ghostwriting judicial opinions for a state appellate judge, I joined a small, well-regarded firm in the late '70s and practiced international business and tax law. 

I thought my dream was about to come true. After a time, however, I soon learned that the job of international-contracts scrivener was less than fulfilling. I was eager for a change.  By fortunate happenstance, I stumbled on another area of law teeming with international flavor and opportunities aplenty to travel: immigration law.  Better still, I discovered a passion for law that until then had not existed. It's been 30-plus years and my passion for immigration still burns brightly.

Lately, however, what I always saw as a helping profession has become a hurting occupation.  I hurt because my job causes me, against my will and my heart, to transmit hurt to others.  I tell clients whose petitions and applications the government has rejected (in my view, unjustly, or I wouldn't have taken the assignment) that they must set aside their American dreams and leave the country or risk a 10-year bar on returning here by appealing the denial or litigating.  I also tell employers that they must terminate some of their best workers.  These are the ones (the employer belatedly discovers) who lack work permission. I then imagine the cascade of hurt my advice inflicts:  Families are torn asunder, businesses are threatened, and dreams are dashed.

This is the toxic effluvia of the new Homeland Security policy that dispenses with high-profile worksite raids and instead uses threats of criminal prosecution to tighten the vise on employers and thereby cause the ouster of unauthorized foreign workers from job sites nationwide.  At the same time, the front page of today's Wall St. Journal proclaims that another Executive Branch agency is overwhelmed by a flood of tax cheats who pursue government-sanctioned amnesty after having secreted untaxed money in offshore accounts ("Tax Evaders Flock to IRS to Confess Their Sins"). 

Why the rush to put the immigration squeeze on now?  Is this a cynical and heartless ploy to appease and co-opt the xenophobes in advance of the push this fall for comprehensive immigration reform?

Ironically, in the same WSJ edition, another article hits closer to home: "Got Workers? Dairy Farms Run Low on Labor -- Even in Recession, U.S. Job Candidates Are Scarce; Milk Producers Relying on Immigrants Worry About a Crackdown."

Something in these contrasting articles caused me to go back and search for a passage in President Obama's autobiographical Dreams from My Father.  I find it in Chapter 16. His Aunt Zeituni (who now awaits her fate in a reopened deportation hearing) tells a younger Barack:

. . . [D]on't judge [your father] too harshly. . . . If you have something, then everyone will want a piece of it. So you have to draw the line somewhere. If everyone is family, no one is family.  Your father, he never understood this, I think.

So, for now, we see where the "forgiveness" line is drawn.  On one side, tax cheats; on the other, dairy workers who "deliver calves, milk cows and scrape manure." This blogger and unhappy bearer of bad immigration tidings therefore asks: Who's milking whom?

Bailout Amnesty -> GOOD! - Immigration Reform -> BAAAD!

Economists talk about the moral hazard - the notion that people should not be free to violate principles of good faith and fair play, but instead should be held accountable for their mistakes and transgressions.  As Wikepedia tells us (at least as of 9/25/08):

Moral hazard is the prospect that a party insulated from risk may behave differently from the way [he, she or] it would behave if . . . fully exposed to the risk. Moral hazard arises because an individual or institution does not bear the full consequences of [his, her or] its actions, and therefore has a tendency to act less carefully than [he, she or] it otherwise would, leaving another party to bear some responsibility for the consequences of those actions.

In other words, moral hazard connotes irresponsible, perhaps lawless, risk-taking behavior that ultimately mistreats or unfairly disadvantages others.  Economists, ethicists and many members of the public have decried the wholesale disregard of moral hazard in the bipartisan effort within Congress and the Bush Administration to bail out Wall Street.  As a pragmatic matter, to promote the general welfare and avoid the seizing up of our economy for lack of liquidity, politicians are rising "above politics" and doing what they think is the right thing to save the economy and the American people.

Pragmatism and doing the right thing, despite moral hazard, is much less popular, however, when it comes to immigration - a word uttered only twice during the logorrheic speeches at the Democratic and Republican party conventions. Bailout amnesty for promoters and borrowers of "liar's loans" is fine, I suppose, if it promotes the general welfare.  On the other hand, according to our morally nimble politicians, legal status for crossing the border to work and feed one's family, performing jobs that we need done but disdain for ourselves, would "reward law violators," and that would be wrong.

The French, I guess, are better at the practice of countenancing ethical hairsplitting. As François, Duc De La Rochefoucauld, sagely observed:   "Hypocrisy is an homage that vice renders to virtue."

USCIS's Word Is NOT Its Bond

There's little wonder why confidence in government is at a low point.  In a recent AAO decision, USCIS went out of its way to say that the public and the immigration bar should not be lulled into deceiving themselves that the agency will stand behind its public pronouncements:

[T]he legacy INS comments in the supplemental information to the . . . regulation are not legally binding on USCIS. . . .

[E]ven where an agency memorandum or General Counsel opinion is publicized and discussed in a widely circulated immigration periodical, the document will not be considered as a rulemaking that a petitioner may rely on.

So the lesson here is that every time a lawyer or a stakeholder is tempted to rely on a USCIS web posting, press release, memo, press conference, answer in a liaison meeting or other utterance (except for published final rules and decisions designated as precedent), we should remember that the USCIS's word is not its bond.  Don't risk your law license or your client's immigration case on the undeserved expectation that the government will keep its word.

There oughta be a law that administrative agencies are bound by an individual's reasonable reliance on a clearly worded statement issued by that agency, even if some bureaucrats might later find it convenient to repudiate its original pronouncement.

"Conscience" May Thaw ICE-Cold Immigration Raids Strategy

The Bishop of Providence Rhode Island, Thomas J. Tobin, and 15 pastors in his diocese may have hit upon a divinely-inspired strategy to prod the Bush Administration, in the sunset of its reign, into putting the kibosh on its aggressive immigration-raids enforcement policies.  The strategy is conscientious objection, a principle that the Administration just endorsed with its new proposed rule published on August 21 by the Department of Health and Human Services that would uphold the right of health care professionals to refuse to participate in abortions or other medical procedures that the worker believes would violate personal conscience.

Sauce for the goose is gravy for the gander.  Conscientious objection is a lawful basis to refuse to perform work, which though legal, would violate the worker's conscience.  See, e.g., guidance on the legal right to refuse work based on moral scruples issued by the States of California and Washington.  Here is what Bishop Tobin and the priests have suggested in an August 19 letter to Immigration and Customs Enforcement (ICE) after observing a spate of hurtful immigration raids in their state:

What we have witnessed is that the police action of ICE against immigrants has divided the community, instilled fear in our streets, disrupted the everyday life of good people and separated family members, innocent of any crime, from one another.  The confusing and secretive detention of those arrested has further complicated the situation.  As religious leaders concerned for our people we would be negligent of our pastoral duties if we didn’t speak out against these unjust government policies. . . .

Additionally, we encourage the agents and staff of ICE to evaluate the morality of their participation in immigration raids in the context of their faith and sanctity of their conscience.  If their discernment leads them to the conclusion that they cannot participate in such raids in good conscience, we urge them not to do so.  If ICE agents refuse to participate in immigration raids in conformity with their faith and conscience, we urge the Federal Government to fully respect the well-founded principles of conscientious objection.

Imagine if ICE agents and staff flat out refused to go on raids. Imagine if Immigration Judges and Government Trial Attorneys did the same.  As Bruce Hake has shown us, there are rich scriptural foundations that support a sincere refusal to arrest the undcomented.  Lou Dobbs would of course have a conniption fit.  But maybe, just maybe, we could revisit our dysfunctional immigration laws and call a pause in our half-baked enforcement policies until a new Administration and Congress could take up a pragmatic and humane effort at comprehensive immigration reform.

Dissuasion's Disappearance: DOL Again Retreats on its PERM "Consideration" Analysis

The U.S. Department of Labor (DOL) has retreated once again from the silly summer brouhaha it sparked on June 2 with the issuance of an ill-advised press release announcing the audit of all corporate clients of the Fragomen law firm.  As readers of this blog know from my previous posts (first, second and third), the DOL has been roundly criticized for its initial broadside against attorney participation in the recruitment process required under PERM labor certification regulations.

First, the agency said in its June 2 press release that "[w]here an employer does not normally involve immigration attorneys in its hiring process, there is no legitimate reason to consult with immigration attorneys before hiring apparently qualified U.S. workers who have responded to recruitment required by the permanent labor certification program [italics added]."

Next, the DOL backtracked.  On June 13 it issued a "Clarification."  Under the agency's new guidance, DOL recanted and discovered legitimate reasons for consultation with counsel, but  a new concept, "dissuasion," was not allowed:

After the evaluation of applications by the employer has been completed, the employer may consult with its attorney or agent about the implications of its qualification determinations on the labor certification application. Those consultations can encompass the question of whether applicants who were found by the employer to be unqualified were rejected for lawful, job related reasons. Under no circumstances, however, should an attorney or agent seek to dissuade an employer from its initial determination that a particular applicant is minimally qualified, able, willing and available for the position in question [italics supplied].

On August 29, however, DOL issued a "Restatement" based on public feedback.  The Restatement cites the June 2 press release, a June 4 FAQ, and the June 13 Clarification (labeling all three as the "Consideration Guidance Documents") and then (unceremoniously and inexplicably) junks them, noting that the Restatement "will supersede [italics in original]" all three documents.  In the Restatement, DOL now concludes:

Attorneys (and, to the extent it is consistent with state rules governing the practice of law, agents) may . . . provide advice throughout the consideration process on any and all legal questions concerning compliance with governing statutes, regulations, and policies.

As can be see from the Restatement, the rule prohibiting attorney dissuasion is nowhere to be found.  I had argued in a New York Law Journal article, co-authored with Ted Chiappari, that the ban on dissuasion made no sense :

The Labor Department cites no authority for this "dissuasion" restriction on counsel’s role. A simple hypothetical illustrates why a ban on dissuasion is unwise. Suppose an employer, fearing the DOL’s enforcement authority, mistakenly believes that the business must provide extensive, burdensome and costly training to an unqualified applicant, and therefore considers that applicant qualified. The lawyer for the employer could legitimately point out that the DOL regulation would treat that applicant as qualified only if the training could be conducted in a "reasonable" time. The lawyer, acting in the best interests of its employer client, could rightfully point out that such unreasonable training burdens and delay are not required by law or regulation. It is unlikely in this scenario that any court would hold that the lawyer acted improperly by seeking to dissuade an employer from its initial determination concerning the applicant’s qualifications.

Despite its silent retreat on dissuasion, the DOL persists, however, in perpetuating the confusion that the agency itself has created. It offers two flatly inconsistent statements that (I predict) will require yet another published change in interpretation (will they call the next one a "Regurgitation"?):

[G]iven that the permanent labor certification program imposes recruitment standards on the employer that may deviate from the employer’s normal standards of evaluation, the Department understands and appreciates the legitimate role attorneys and agents play in the permanent labor certification process. . . .

In evaluating a labor certification application, the Department will look carefully at the manner in which the employer reached its determination that there are no qualified, available, able and willing U.S. workers, including scrutinizing the manner in which the decision was made and whether or not the employer deviated from its normal course of business in evaluating the qualifications of U.S. applicants [italics added].

The agency also offers a bureaucratic koan for all stakeholders (and perhaps a court or two) to ponder:  In what state(s) are agents allowed to offer legal advice?  Every state of the United States -- so far as I know -- prohibits the unauthorized practice of law.  Answer to the koan:  Only in the DOL's state of denial. 

Thankfully, the Fragomen law firm has sued DOL and requested a court injunction.  The agency's behavior in unleashing and then stirring up needless quandaries and controversies -- while offering nary a hint of compliance with the Administrative Procedures Act -- must be judicially chastised. Alternatively, or better yet, in conjunction with court action, Congress, when it returns from recess, should immediately convene oversight hearings to see how taxpayer dollars are being squandered by an agency run amok.

Let's keep our fingers crossed, and hope for the best.

Fallen Patriot

I lost a great friend this weekend, Steve Fischel, but America lost a patriot.  Stunned and tearful as the news of his passing spread, I walked aimlessly through the Vancouver Convention Center last Saturday afternoon, realizing in awe how many AILA members likewise cherished a close friendship with him.

Steve and I were to share an EB-5 panel last Wednesday, but he never made it.  A passenger on his flight took ill and the plane was diverted.  His last emails to me were classic Steve.  He wrote to be sure we both were ready so that we would give our audience good value.  In reply I'd emailed him my portion of the presentation on best practices in EB-5 risk management, ironically entitled:  "Stress Relief and Blissful Sleep."   He replied by email: "Thanks.  This is helpful. Look forward to see you. S"

I never saw Steve at the AILA conference, but learned right away that he had been felled by a ruptured aortic aneurysm as he sat chatting with friends.

My loss, even when amplified by the heartfelt grief of so many of Steve's friends in AILA and his colleagues in government, does not tell the full story of America's loss of this marvelous fallen patriot.  Steve served honorably and well in the State Department for 31-plus years, but we in AILA first came to know him in 1981 as he articulated eloquently the Department's positions on a host of immigration issues.  Unlike  so many of the current crop of government officials who administer and enforce the immigration laws, Steve appreciated and respected immigration lawyers.  He saw us not as adversaries but as participants in a legal process that brought profound blessings to America.  Steve, like other officals of his era (Cornelius "Dick" Scully at State, and Jackie Bednarz and Larry Weinig at INS -- all thankfully still alive), believed that his job was to help lawyers, newcomers and veterans alike, understand the immigration law and the government's interpretations.  He never had an axe to grind; his approach was always to achieve the correct legal answer and the just result.

To be sure, we didn't always agree, especially on consular nonreviewability, but I never walked away from an exchange with Steve feeling that he'd denied me a fair hearing or a thoughtful response. With a twinkle in his eye, a wide smile and a deadpan, comedic retort, Steve could joust with the best of us.

He made a great, positive impact on immigration law, helping to craft the NAFTA TN provisions, improving the J-1 waiver process, and reconciling the conflicting E-1 and E-2 interpretations of INS and State, to name but a few.  And then he retired from State, the deserving recipient of awards aplenty, and crossed the aisle to practice immigration law, always with success and gusto.  The American Immigration Law Foundation, which he served as a member of the Board of Trustees, awarded him its Distinguished Public Service Award in March 2006.  The video of his acceptance speech will bring a tear or several to your eyes but it's worth watching.

Although most Americans and millions of immigrants to our country may never have known Steve, his impact on their lives, the benefits he helped confer, the American Dreams fulfilled with his aid, will be remembered sadly and proudly by all of the many close friends who mourn his passing. 

Steve,

Although your life was cut short, you can now enjoy stress relief and blissful sleep.  May you know, in the words of Ralph Waldo Emerson, that you lived life successfully indeed:

"Those are a success who have lived well, laughed often, and loved much; who have gained the respect of intelligent people and the love of children, who have filled their niche and accomplished their task, who leave the world better than they found it, whether by a perfect poem or a rescued soul; who never lacked appreciation of the earth's beauty or failed to express it; who looked for the best in others and gave the best they had."

   

Do You Have Immigration Issues? Let's Converse and Heal!

Welcome to Angelo Paparelli's new immigration blog, courtesy of ILW.COM.  My hosts, Sam Udani and friends, may not realize it but they've given me a wonderful way, not merely to vent my frustrations with America's dysfunctional immigration system, but also to avoid psychotherapy.  The immigration-related outrages we immigration lawyers and other patriotic Americans see every day can lead to a host of psychosomatic maladies -- dyspepsia, high blood pressure, stress-induced anger and tears, neurosis and who knows what else.

This blog, therefore, will serve for me, and I hope for you, as a holistic form of therapeutic wellness.  When I comment upon, or you share, the next new perverse, ironic, laughable, tragic or just plain stupid immigration development, let us openly call it what it is, and offer a suggested solution.  Let us help cure the body politic as we recall the wise counsel of Supreme Court Justice Louis Brandeis:

Publicity is justly commended as a remedy for social and industrial diseases.  Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.