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Angelo Paparelli on Dysfunctional Government

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  1. DOL and PERM: "Vigorously Enforcing" a Fictional "Statutory Mandate"

    by , 07-25-2008 at 08:23 AM (Angelo Paparelli on Dysfunctional Government)
    The saga of DOL's new focus on PERM enforcement continues. As reported yesterday in the National Law Journal ("Labor Agency Audit of Firm Angers Immigration Lawyers"), after clearing away its pre-PERM backlog in the fall of last year, the Department of Labor found itself with time on its hands. 

    Apparently adopting the view that the idle mind of a bureacrat is the devil's workshop, the agency has decided to focus the attention of its PERM staff on audits and other enforcement mechanisms. As DOL Solicitor, Gregory F. Jacobs, explained to the NLJ reporter:  "We are vigorously enforcing and making sure we are adhering to our statutory mandate."  Mr. Jacobs' wording is a bit of a contortion of the phrase "statutory mandate" given that nowhere in the INA is there any authorization for the Rube Goldberg recruitment test required by the PERM regulation. See the definitive article by Gary Endelman that refutes Mr. Jacobs' assertion.

    Setting aside the absence of statutory duty, I began to wonder: How much time does DOL spend on adjudicating PERM applications?  Turning to the lawyer's trusty friend (the Paperwork Reduction Act [PRA]), I decided to look under the DOL's hood for the answer.  It turns out, according to the DOL Supplemental Statement to Form 9089 submitted under the PRA, the agency spends precious little time on average: about 15 minutes each on "clean" applications.  On the 30% of the 100,000 PERM cases per year that DOL estimates will be audited, it spends an average of four hours per application (three hours by an "analyst" and one by a "manager"). That's 120,000 hours on audits per year.  The DOL omits any time estimate on supervised recruitment.

    "Vigorous," in my mind and in the dictionary, connotes "energetic activity" or "intensity."  But turning to another dictionary definition, I see that after all the word is correctly used: "powerful in action or effect: vigorous law enforcement [italics in original]."  Now I see the "shock and awe" impact of unbridled power. With the power of the press release, backed by a paltry four hours per audit, the agency enjoys the in terrorem effect of intimidation of law-abiding companies and attorneys. 

    Ironically and tragically, this action occurs just as the top technology official charged with keeping us safe, Jay Cohen, the Department of Homeland Security's Undersecretary for Science and Technology, warns that America faces the risk in two decades that our economy will no longer be "first-world" because of a severe shortage of students in science and math: "Homeland Security Official Warns U.S. Workforce Faces Skills 'Crisis.'"

    In the waning months of the Bush Administration, this blogger, quoting Marvin Gaye, asks in frustration and sadness: "What's Going On?"
  2. U.S. Citizens Beware - Department of State "BAR"s Your Appeal Rights

    by , 07-18-2008 at 09:34 AM (Angelo Paparelli on Dysfunctional Government)


    "Don't it always seem to go
    That you don't know what you've got
    'Til it's gone"The Joni Mitchell lyrics to Big Yellow Taxi came to mind as I read today's announcement from the Department of State.  The agency published in the Federal Register an interim final rule that eliminated as "obsolete" the Board of Appellate Review (BAR).  The BAR -- housed in State's Office of the Legal Adviser -- provided U.S. citizens and applicants for U.S. passports a time-honored way to appeal consular officer determinations of loss of U.S. nationality or Passport-Office refusals to issue an American passport.  The BAR's rules of practice were heavely laden with procedural due process protections, such as the right to a hearing, the right to attorney representation and the right to seek reconsideration, all contained in, but soon to disappear from, 20 CFR Sec. 7.1 et seq.

    In place of the BAR, State has conferred discretionary authority upon the Bureau of Consular Affairs to review passport refusals and loss-of-nationality determinations.  These are the same secretive folks who operate in the shadowy world in which attorney representation at consular interviews is barred, and refusals to share the contents of advisory opinions on questions of law issued to U.S. consular officers are countenanced.  I'm not optimistic that we'll see much due process with Consular Affairs.  State has not published any rules of practice or procedure for Consular Affairs to honor.  Everything will apparently be decided behind closed doors. 

    On the other hand, discretionary review at the administrative level is an option not a duty.  Passport refusals and the determination that a citizen has lost U.S. nationality can now be directly considered in Federal Court, since there are no longer any administrative remedies to pine for or to exhaust.

    Meantime, dear citizens, step up to the bar and raise a toast to BAR for its historic adherence to procedural due process.  Alternatively, you have until September 16, 2008 to offer State your comments on its interment of BAR.

    May BAR R.I.P.
  3. The Door of Consular Absolutism is Ajar

    by , 07-11-2008 at 05:24 AM (Angelo Paparelli on Dysfunctional Government)
    On July 9, Alma and Jose Bustamante forced open the door of consular absolutism just an inch or so, but this wasn't enough room for the couple to go through that unjust portal.  Consular absolutism (also known as consular nonreviewability) is the longstanding judicial doctrine that the courts will not consider visa refusals based on a factual decision of an American consular officer. 

    The Ninth Circuit Court of Appeals in Bustamante v. Mukasey determined that "when a citizen's constitutional rights are alleged to have been violated by the denial of a visa to a foreigner, we undertake a highly constrained review solely to determine whether the consular official acted on the basis of a facially legitimate and bona fide reason." The Ninth Circuit rested this slim right of review on the citizen's liberty interest in marriage: [We hold that] a U.S citizen raising a constitutional challenge to the denial of a visa is entitled to a limited judicial inquiry regarding the reason for the decision. As long as the reason given is facially legitimate and bona fide the decision will not be disturbed. . . . Here, [the American citizen spouse] asserts that she has a protected liberty interest in her marriage that gives rise to a right to constitutionally adequate procedures in the adjudication of her husband's visa application. The Supreme Court has deemed "straightforward" the notion that "[t]he Due Process Clause provides that certain substantive rights -- life, liberty, and property -- cannot be deprived except pursuant to constitutionally adequate procedures." Freedom of personal choice in matters of marriage and family life is, of course, one of the liberties protected by the Due Process Clause. See Cleveland Bd of Educ. v. LaFleur, 414 632, 639-640 (1974).The Bustamantes lost because the ground of visa ineligibility involved a very low threshold.  All that was necessary was for the consular officer to have a "reason to believe" that Jose was a drug trafficker.

    In many other situations, however, the "reason to believe" standard does not apply.  In other grounds of inadmissibility under INA Sec. 212(a), there must be real facts on which to base a visa refusal.  Although the crack in the door of consular absolutism is narrow, passionate immigration lawyers should bring cases where a federal district court might well find that the consular official acted on a facially illegitimate basis or in bad faith.  I suspect that some cases of this type are out there.  Build the argument and the clients will come.

    Congratulations to the Bustamantes' lawyers, Mark Van Der Hout and Beth Feinberg, for opening the door.

  4. USCIS's Ombudsman's 2008 Report: "Hello Out There!" or "HellOOo"?

    by , 07-05-2008 at 11:35 AM (Angelo Paparelli on Dysfunctional Government)
    Sometimes, for no apparent reason, a word or phrase bubbles up from deep within the realm of memory.  As I studied the excellent 2008 USCIS Ombudsman's Report to Congress, out from my cerebral hard drive popped "Hello Out There!" -- the title and opening and ending lines of William Saroyan's outstanding 1942 one-act play. The play is about angst, the existential cry of the human spirit beset by a world of injustice, but also about hopeful beginnings. (In high school I played the smallest of bit parts -- the jailer -- a ten-second walk-on with no lines.)

    As I wondered why this phrase suddenly popped in my mind, into my consciousness came another meaning of "hello," pronounced with an adolescent sing-song intonation that stresses the last two syllables, as in "HellOOo."  This slang meaning of "hello," as confirmed in www.SlangSite.com, expresses astonished incredulity at another person's naivete.

    Pondering the two meanings of this common salutation, I at last made the connection to the Ombudsman's report.  On one hand, his report is a deep-throated "Hello Out There!" -- an earnest clarion call alerting us in detail to the many problems and dysfunctions of USCIS, and a hopeful urging to our nation's leaders for resolute action.  On the other, the report may well evoke a skeptical and smarmy reaction from members of the public and the immigration cognoscenti whose hopes have been dashed repeatedly by countless broken promises and initiatives that failed.

    I take the quixotic view of the Ombudsman's report.  If he can help in achieving even a glass half-full of his many worthy recommendations, and earlier unanswered suggestions to his predecessor, our country will be well served.
  5. Homeland Security's Report Card - Mom and the Nuns Would Be Disappointed

    by , 07-03-2008 at 07:30 AM (Angelo Paparelli on Dysfunctional Government)
    If Congress were my dear departed Mom, and I were the Department of Homeland Security (DHS), there would be purgatory to pay if I brought home a report card like DHS produced in 2007.  To put it another way, If the President were Sister Donavita, my eighth grade parochial-school nun, and she issued me the 2007 DHS report card, I would have been (metaphorically) bloodied and bowed before I left her class, and my Mom would still provide (not quite so metaphorical) wooden-spoon discipline when I got home.

    Regrettably, however, disciplinary standards of the past do not persist in the present.  DHS Employee Morale a grade of "F,"Port Security a "C-/D+," Management & Organization, and Critical Infrastructure, both "Incompletes," and Chief Privacy Officer, an overly generous "B-," despite revolving-door leadership and an average three-year ranking of last place among all federal entities in "privacy trust" score, according to the Ponemon Institute's report (2007 Privacy Trust Study of the United States Government).

    Why do we tolerate this abysmal lack of protection?



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