Posted by Angelo A. Paparelli on March 26, 2009

Immigration Detention and Deportation: The Uncivil Charades

As the New York Times reports, recessions have a way of changing attitudes about incarceration, even among the ardent yet newly frugal law-and-order types. The states are finding that imprisoning convicts can bust already strapped state budgets. Alternatives to incarceration, such as diversion for treatment or early release, are therefore increasingly the norm. And as Lindsay Lohan shows, ankle monitors can be more than just a way to monitor the wayward, but also a fashion statement.

In the topsy-turvy word of immigration, however, the detention of immigrants, most of whom have committed no crime, is a growth industry for Immigration and Customs Enforcement (ICE) and the private incarceration companies that contract with ICE. On March 26, Amnesty International (AI) charged the U.S. with human rights violations in the detention of immigrants:

The US immigrant-detention population has surged in the past decade, resulting in a lack of due process that has driven some detainees to attempt suicide, according to an Amnesty International report. In the last decade the number of immigrants in detention has tripled from 10,000 in 1996 to over 30,000 in 2008. Those detained include asylum seekers, survivors of torture and human trafficking, lawful permanent US residents and the parents of US citizen children.

The Feds, aided by a docile judiciary, have long justified the denial of immigrants' due process rights by a word game. Deportation (or, removal, as it's now called), although a long-term banishment, and often a life sentence of separation from family and friends, is a "civil" proceeding, and as such, the legal protections given persons accused of crimes do not apply. With linguistic (and sophistic) legerdemain, the jailers and deporters deny immigrants the presumption of innocence, the right to a trial by jury, the deterrent of the exclusionary rule, and the appointment of defense counsel for the indigent at government expense.

In essence, the "civilizing" of the detention and deportation process, a legal ruse, has become for its woebegotten incarcerants at once dehumanizing and demonizing. Because this is only a civil process, anything apparently goes. Immigrants have died in custody for want of medical care. Persons with claims to U.S. citizenship, accused of migrancy, have languished in immigration jails -- In 2007, some 322 people in detention with potential claims for US citizenship according to AI were in custody. Lifelong permanent residents convicted of minor, non-violent crimes are held in custody until deportation can be arranged. Even "Auntie Zeituni" -- whose nephew is the President of the United States -- although not incarcerated, faces civil deportation back to Kenya.

It is time that Congress stops the twin charades of "civil" deportation and "civil" detention, and at least provide immigrants with the level of due process granted accused misdemeanants, if for no other reason than that the perpetuation of these evils gives lawless regimes abroad a way for the garlic to tell the onion: "You stink!"

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Posted by Angelo A. Paparelli on March 20, 2009

Diaphanous Immigration Practices at USCIS

Transparency in government is the new mantra. The President commands it. The Attorney General (AG) implements it, through a new policy requiring government agencies to provide easy access to information and documents under the Freedom of Information Act (FOIA). At U.S. Citizenship and Immigration Services (USCIS), however, the practice is more diaphanous than transparent. Diaphanous is one of those tricky words known as contranyms, whose meanings are opposites of themselves. On one hand, diaphanous means transparent, i.e., "characterized by such fineness of texture as to permit seeing through." An opposite meaning of diaphanous, however, is vague or obscure.

As shown in the published Q & A of a March 19, 2009 meeting with the American Immigration Lawyers Association (AILA), the transparency policy of USCIS, in Kafkaeque style, adopts the latter meaning of diaphanous. Deflecting multiple requests for important immigration documents by insisting on the submission of FOIA requests, USCIS stonewalls the public. If it had truly wanted to comply with the spirit of the AG's transparency order, USCIS would have treated AILA's requests as FOIA requests (since the FOIA requires no special form to make a request for documents or information).

Another important measure of transparency that USCIS could embrace would be timely rulemaking under the Administrative Procedures Act (APA). APA rulemaking is the antithesis of the agency's extralegal practice of rulemaking by press release, web posting or disclosed and undisclosed policy interpretations. The purpose of APA rulemaking is to give the public a chance to comment and present new or different ideas concerning anticipated agency action before final rules take effect. Another purpose is to test whether the agency's interpretation of a new statute conflicts with legislative history. None of this happens, however, when agency rules are adopted in stealth, with no input from the public, and drip-by-drip disclosure of the new rules is the standard mode of disseminating information.

Clearly, though the USCIS is bound to follow the AG's orders on matters of immigration law, this obstreperous agency digs in its heels and makes its own laws. As a result, the Obama administration must act immediately to liberate the flow of policy guidance to a deserving public and issue the many still unpublished USCIS immigration regulations interpreting statutes passed so long ago that only Boomer immigration lawyers with memories yet intact can recall that they were ever enacted.

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Posted by Angelo A. Paparelli on March 13, 2009

Immigration Unavailability at Any Time Cannot Be Ruled Out

In times of economic stress, people turn to rituals. Some finger rosaries or worry beads. Other folks, as the Wall St. Journal's Sue Shellenbarger reminds us ("Life Stories: Children Find Meaning in Old Family Tales" [3/12/09, p. D1]), revert to an age-old tradition, the passing on to the next generation of family stories about earlier ancestors suffering and (sometimes) transcending hardship.

In the immigration legal community, we too have our ceremonies. Every year, invariably as winter turns to spring, we behave ritualistically. We try to soothe anxious employers and would-be workers from abroad as we prepare their H-1B visa petitions. On the eve of every April Fools Day, we pray or cross our fingers and then consign (to Federal Express and other overnight couriers) precious packages, addressed to USCIS, containing our clients' hopes and dreams of futures soon to be revealed. Just as Boomer males awaited their individual futures in the draft-era lottery, foreign students and prospective workers stand by their mailboxes for the results of the H-1B lottery.

Another immigration ritual with perhaps just as much riding on the outcome occurs in the second week of every month as immigrant hopefuls await publication of the State Department's Visa Bulletin. The raw news of the monthly cutoff dates in family and employment-based preference categories is scanned by mostly crestfallen readers who see backlogs that pose formidable barriers to the American Dream. Just as important is the agency's prediction of future movement of cutoff dates that determine career and life outcomes. The latest Bulletin captured the modern-day zeitgeist of dysfunctional immigration policies in doubletalk that would rival the Newspeak of George Orwell's 1984:

Despite the established cut-off date having been held for the past five months in an effort to keep demand within the average monthly usage targets, the amount of demand being received from Citizenship and Immigration Services (CIS) Offices for adjustment of status cases remains extremely high. Therefore, it has been necessary to retrogress the April cut-off dates in an attempt to hold demand within the FY-2009 annual limit. Since over 60 percent of the Worldwide and Philippines Employment Third preference CIS demand received this year has been for applicants with priority dates prior to January 1, 2004, the cut-off date has been retrogressed to 01MAR03 to help ensure that the amount of future demand is significantly reduced. As indicated in the last sentence of Item A, paragraph 1, of this bulletin, this cut-off date will be applied immediately. It should also be noted that further retrogression or “unavailability” at any time cannot be ruled out. It has also been necessary to retrogress the Employment Third Preference Other Worker cut-off date for all countries in order to hold the issuance level within the annual limit. [Bolding and italics added.]

The highlighted sentence is as pregnant (with meaning) as Octomom (with offspring) before she entered the birthing room. To immigration cognoscenti, including legions of frustrated men- and ladies-in-waiting from abroad, the message is clear. Expect to maintain a state of suspended animation for several years before your energy and ideas can be put to productive use. Or as George Carlin said, "it's called the American Dream because you have to be asleep to believe it."

Our government, and a somnolent public, must recognize that these foreign strivers will not wait forever. They will not entrust their fate to the headless horsemen of America's current immigration system. As Vivek Wadhwa and his collagues have shown, they will simply follow a lifelong ritual. They will take their minds, energy and talents and go home, "the place," as Robert Frost reminds us, "where, when you have to go there, they have to take you in."

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Posted by Angelo A. Paparelli on March 06, 2009

Immigration Reform with the Stroke of a Pen

The Obama Administration faces a serious problem with a critical constituency -- voters who supported the President last November, in large part, because of his promise of enlightened and compassionate immigration law reform. The administration is also under close scrutiny by the peoples and nations of the world to see whether his solutions to the global economic dysphoria will include large doses of protectionism.

Early signals are dispiriting. The first major law signed by President Obama contained a protectionist provision authored by a self-proclaimed socialist, Vermont's Sen. Bernie Sanders, requiring the hiring by any recipient of TARP or Federal Reserve funding of U.S. workers over equally qualified H-1B workers. As the inclusion of this law into the stimulus legislation shows, the enactment of comprehensive immigration reform -- in the current economic climate -- will be a slog, and hopes may again be dashed.

Change, however, can come in other ways. The Obama Administration can effect large-scale immigration improvements by signing executive orders and directing the Departments with authority over immigration (Homeland Security, State and Labor) to issue policy interpretations, and where required, new regulations. Gary Endelman and Cyrus Mehta -- two immigration thought leaders -- show the way in their worthy article, "The Path Less Taken: Is There an Alternative to Waiting for Comprehensive Immigration Reform?" Here are a few more examples of stylish immigration penmanship (or is it penpersonship, given that the President is male and the heads of the three Departments are female?): 

  1. Secretary of State, Hillary Clinton, could declare that all visa interviews by American consular officers would be video-recorded. This would help in two important ways. The federal government would capture biometric data on every interviewed applicant, thereby improving national security, and every consular officer (knowing that the interview could be viewed by superiors in Washington and by Congress) would have a (now-nonexistent) inducement to be fair in posing questions and allowing answers.
  2. Secretary of Labor, Hilda Solis, could redeploy resources and insist on only legally-justified audit triggers to (a) erase the long backlogs in labor certification processing created by the prior Administration's unjustified "rule-making by press release" fiasco in which multiple Fortune 500 companies were audited because the agency misunderstood the proper advisory role of lawyers in the recruitment process, and (b) prevent new backlogs from recurring.
  3. Secretary of Homeland Security, Janet Napolitano, could order the cessation of worksite raids and quota-based street apprehensions until ICE develops clear enforcement priorities that focus on major felons and fraud facilitators rather than poor immigrants trying to feed their American citizen children.
  4. President Obama could sign an executive order enforcing the rule of law by ordering each of the three agencies to develop clear and procedurally fair regulations ensuring the right of attorney representation of every individual and entity with a legally cognizable interest in an immigration proceeding. This would extend, e.g., to consular interviews, port-of-entry secondary inspections, ICE interrogations of immigrants and employers, and the individual attorney or firm representation of multiple parties in interest in employment-based USCIS adjudications of H-1B and adjustment of status portability.

These are just a few changes that do not require a filibuster-proof vote in the Senate. Even if comprehensive immigration reform is a bridge too far for now, the dreams of audacious hope can still be realized with artfully penned immigration reforms.