Nation of Immigrators - A public policy blog on America’s dysfunctional immigration system

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."

Americans are far more welcoming and warm-hearted than the reputedly cold-hearted Swiss, we like to believe. As the New York Times reports today, the Swiss people are set to vote on a ballot measure of dubious constitutionality that would let local citizens decide in secret and give no reason for rejecting a fellow townsperson's application for naturalization.

The Times' article tells the sad tale of Ms. Milikije Arifi, a 30-year legal resident of Switzerland originally from Macedonia, who is fluent in the predominant Swiss tongue (German), speaks German with a Swiss accent, has complied with all laws, paid taxes, and proudly supported the national soccer team. The Town Council of a Zurich suburb denied her naturalization application in a secret ballot, offering "insufficient integration" as the basis for its refusal of citizenship. Milikije's lawyer suspects another motive:

"This is clearly a case of arbitrariness . . . The council thinks this woman looks like a Gypsy with her colorful clothes and her jewelry, so they just reject her in this succint Swiss way."

America is not Switzerland. Citizenship through naturalization is a privilege the U.S. gladly grants to eligible foreign-born permanent residents who play by our rules, reside here for the required period of physicial presence (usually five years), and prove they can communicate in English and understand a modicum of American Civics and History. In our system, there is no test for "integration," and if someone is denied naturalization our examiners give them a full explanation in writing. Indeed, U.S. Citizenship and Immigration Services (USCIS), the folks who decide naturalization applications, proudly displays on its website a photo of new citizens, a rainbow of races and gleeful peoples, proudly waving miniature American flags.

A look behind the scenes of this festive peoplescape, however, reveals a Swiss-like power to bar the path to citizenship much earlier in the process and likewise offer no reason whatsoever. Most foreign nationals who are granted U.S. permanent residency, the first requirement for citizenship, must first pass muster before an American consular officer at a U.S. embassy or consulate abroad. Consular officials enjoy absolute power to decide the facts necessary to establish a foreign applicant's eligibility for a U.S. visa. And American courts have repeatedly upheld this fact-finding form of consular absolutism expressed in the decision to grant or deny a visa. If the facts were on the table, however, and the consular officer had to explain his decision in writing, perhaps that would at least salve the hurt feelings of a refused visa applicant.

Alas, this is not the law of the land. Immigration and Nationality Act (INA) § 212 includes in subsection (a)(3) among the categories of foreign persons who can be refused a visa:

"Any alien who a consular officer . . . has reasonable ground to believe, seeks to enter the United States to engage solely, principally, or incidentally in . . . any . . . unlawful activity.

Thus, discovery of an adverse "fact" is not required; a consular officer may simply refuse a visa if s/he has mere "reasonable ground to believe" that the foreign citizen will enter the U.S. to engage "incidentally" in any unlawful activity. Thus, the presumption of innocence and the requirement of criminal conviction that satisfies due process are not needed. Apparently, spitting on the sidewalk in violation of a city ordinance would be sufficient. Worse yet, another section of the immigration law, INA § 212(b)(3), allows the consul to give no reason whatsoever for the wishy-washy "reason-to-believe [intent-to-engage-in]-unlawful-activity" basis for refusal of a visa.

So, yes, our laws (which reflect the choices of the people we elect, and presumably, our own values) are not like those of the Swiss. We are more efficient (we can keep people out much earlier than the Swiss). We are also more parsimonious with words (we need not even be "succinct" - we can merely remain mum).

Rather than engage in self-congratulation at our supposed moral superiority, we Americans should look more often behind the scenes of our immigration laws and procedures. Perhaps we'd find Oz, a supposed wizard who is merely "an ordinary, American man who has been using a lot of elaborate magic tricks and props to make himself seem 'great and powerful.'"