It’s a Monday morning. I’m groggily sipping my usual espresso as I skim my emails before getting down to the business of immigration law.  An email from a stranger leads me to a page of five finalists in a video contest on immigration in America.  The contestants’ films lift my spirits.  One talks of how we’re a great nation because we’re different.  Another describes the human suffering of American children in the aftermath of a Feb. 2008 raid on a Van Nuys, California, printing supply company.  A third shows, humorously but  sadly, the perceptions that members of the public often have when visiting a USCIS district office, that of an agency afflicted with ineptitude and indifference, outdated technology, and chaotic file rooms, all covered with a false patina of concern.  The fourth involves interviews of Americans living in a small border town who express sincere compassion for the plight of desperate migrants.  The last, a student film, is an interview with Lady Liberty.  The films are short; but the impression they leave you with is lasting.  Take a look.  You’ll be touched, and glad you did.   

USCIS Director Emilio Gonzalez took umbrage last week with a March 19 New York Times editorial (“Citizenship, Thwarted”) published the day before:

My posting today demonstrates to the more than 700,000 newly naturalized citizens that this country embraces free and open debate. It is a shame, however that a newspaper like the New York Times – which boasts with each paper that it contains all the news that’s fit to print – only values its version of a story and leaves no room for that debate or for the facts.

It’s a case of selective-perception umbrage. Despite the rosy picture of speedy naturalizations that Mr. Gonzalez tries to paint (“[an unspecified] many of the applicants who filed for citizenship after July 2007 have already been naturalized”), the USCIS processing page candidly reveals that “naturalization applications filed after June 1, 2007 may take approximately 16-18 months to process.” The point of the Times’ editorial was that a significant number of naturalization applicants will be ineligible to vote in November 4, 2008 elections because USCIS cannot process their cases in time, despite a 66% filing fee increase that was supposed to improve agency processing time and the quality of service.

Mr. Gonzalez, whose resignation is effective April 18, offers an outraged reply that mischaracterizes the Times’ words. The paper said:

Maybe it’s a stretch to call this intentional disenfranchisement after hundreds of thousands of Latinos demonstrated in the spring of 2006, chanting: “Today we march. Tomorrow we vote.” Still, the absence of so many would-be Latino voters could benefit the Republicans, who have worked so hard to stoke a rancid anti-immigrant mood in this country.

Commissioner Gonzalez omits the tentative phrasing the editorial writer used (“[m]aybe it’s a stretch to call this intentional disenfranchisement”), and fails to acknowledge the editorial’s point, namely, that the agency’s inability to naturalize a large pool of Hispanic voters – who typically vote blue – could disfavor Democrats and help Republicans.

The Commissioner’s reply also mischaracterizes the Times’ editorial when he addresses the agency’s acknowledged delay in opening applicants’ mail and issuing receipts, describing the Times’ comments as “an outright fabrication, hastily conceived by an imaginative writer.” The writer was not addressing the present circumstances (because by now the mail has been opened and the processing begun), rather the editorialist was referring to how history will report on Mr. Gonzalez’s tenure:

Mr. Gonzalez will soon have time to reflect on a dismal monument to his tenure: the dreams of thousands of rule-following, line-waiting, would-be Americans, signed, sealed in envelopes with large checks and money orders, delivered by truckloads, waiting in shrink-wrapped pallets, unopened.

Perhaps the reference to “shrink-wrapped pallets” is hyperbole, but the truth is that there have been significant delays in the agency’s opening of envelopes and issuance of receipts, as the USCIS continues to acknowledge with a “Processing Delay” FAQ link on the left side of its home page.

The more fundamental truth is that despite Mr. Gonzalez’s laudable effort to pump up the flagging spirits of USCIS personnel in his March 20 posting, history will judge this political appointee as largely ineffectual.

Mr. Gonzalez’s talk of technology enhancements (“[m]odernization efforts to build a fully-electronic immigration platform continue to move forward.”) seem like vaporware given the the ageny’s oft-repeated grand pronouncements of modernization. Truth is we still can’t file supporting documents online when petitions and applications are submitted through the E-Filing system.

His talk of promised actions (“more than half of all the citizenship applications received in June and July will be completed by September 30”) must await the “walk-the-walk” proof from an agency not known for accurate predictions on processing time. Increasingly, courts are ordering the USCIS to grant long-delayed naturalization applications, and requiring the government to pay attorney fees. See, “Courts Award Attorneys’ Fees in Naturalization Delay Cases,” published by the Litigation Action Center of the American Immigration Law Foundation. Mr. Gonzalez, who will pay these attorneys’ fees? Will these costs too be heaped onto the backs of U.S. citizens and employers who sponsor legal immigrants?

Perhaps, Mr. Gonzalez, as you enter retirement and ponder your time at the helm of USCIS, you might gradually understand the feelings of applicants for naturalization who cannot vote in the coming election but still must pay the exorbitant filing fees that (as the Times noted) keep “the rickety [immigration] system going.”

Judging from the response, this blogger’s commentary today in Forbes.com annoyed more than a few opponents of legal immigration.  One writer thought the piece was funny, suggesting that my commentary earned me a spot on Jay Leno’s Tonight Show.  Others suggested a pecuniary interest in that more work visas mean more work for immigration lawyers.  But one writer, a foreign worker who gave up on the U.S. immigration system, tells of how he and other foreign transplants prospering at newfound jobs in London could no longer tolerate the unfairness and dysfunction of America’s broken system of legal immigration.  In essence, that commenter proved the point of the article:  Congress and the Administration should be ashamed that — in all their claimed concern for the failing economy — they have overlooked a readily available, jobs-based solution to our nation’s economic woes.  Now more than ever, surgical corrections to the employment-based, legal immigration system are urgently needed.  Scrap the ill-conceived visa quotas and allow our country to benefit from the job-creating talents of the foreign workers who we educate in America or who want to come and contribute to our country. 

Angelo A. Paparelli and Ted J. Chiappari published in the New York Law Journal February 25, 2008

When the subject of immigration policy has been raised in the stump speeches and debates this election season, the candidates (particularly the anti-immigration candidates who, for want of voter support, are no longer in the race) have focused almost exclusively on illegal immigration. Current and erstwhile candidates have waxed rhapsodic on the value of border fences and strict enforcement. Very little has been said, however, about legal immigration. We sometimes hear the short, perfunctory compliment paid to those who “have played by the rules” and “patiently waited in line” outside the United States, and perhaps also a remark, uttered in passing but without much passion, on the need to increase visas for better educated, highly skilled workers.

One candidate with surprising internet-fueled support, the quixotic Ron Paul (who largely opposes immigration), has often asked a question about America’s muscular foreign policy that could well be applied to the attitudes of many law-abiding foreign nationals. Dr. Paul asks and then answers this question: “Why is it that they don’t like us? It’s because of how we treat them.” He continues: “How would you feel if they did the same to us?” His question, of course, is not new; rather, it is a variation on the venerable theme of the Golden Rule, the injunction to do unto others as we would have them do unto us.

To what extent, then, do our nation’s immigration policies apply the Golden Rule? Regrettably, sightings of the Golden Rule are as rare as UFO sightings by presidential candidates. America’s immigration policies are embodied in the Immigration and Nationality Act (INA) – a relic of the McCarthy era ­­– and in the actions of legislators, agency officials and judges from the Fifties to today. Taken as a whole, our immigration laws and regulations reflect policies of official suspicion of and arrogance toward virtually all foreigners.

To be sure, few among us would decry strict enforcement against brazen immigration violators, especially terrorists and criminals, or chastise the government for adopting intelligent and effective measures to protect the homeland. For example, inkless 10-print fingerprinting of foreign citizens at U.S. ports of entry is a reasonable burden in light of the potential benefit of snaring terrorists or criminals, and Americans should be ready to accept similar requirements, as has been proposed for entry to European Union nations.

[1] Still, the question arises whether it serves our nation’s interest and reflects our bedrock values when, as a matter of law and procedure, we systematically apply the tools of indifference and suspicion to all foreign citizens.

To read entire column go to: this link (1) or this link (2).

Attribution and permission statement from NYLJ appears on the links above.

To read related article “Fortress America,” Click Here