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must act immediately to liberate the flow of policy guidance to a deserving public and issue the many still unpublished USCIS immigration regulations interpreting statutes passed so long ago that only Boomer immigration lawyers with memories yet intact can recall that they were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.