Posted by Angelo A. Paparelli on December 18, 2011

Telling Immigration Stories: It's Not Just about Code Sections

From the first prehistoric evenings sitting around campfires, humans have been telling stories. Heroic myths, fairy-tale fables, oral histories -- all have been seared into heart and memory through the power of narrative. Civil and criminal trials are merely stylized forms of storytelling.  Journalism's hook, theatre's Sturm und Drang, reality television's sour and sweet confections -- all are bottomed on stories.

Although I've mentored dozens of able and bright immigration lawyers, some new, some not so, I continue to be amazed at how few appreciate the power of telling stories (double entendre intended).  Sadly, the unscrupulous -- the notarios, consultants and sleazebags with a law license -- know too well the power of storytelling -- but I'm talking about truthful, factual, accurate stories, not fabrications.

SHYMIA-HALL-large.jpgSome stories tell themselves, like the saga of my pro bono client, Shyima Hall.  Born in Alexandria, Egypt as Shyima Hassan, one of 11 children in a poor family, she is sold by her mother at age 9, and smuggled into America a year later to work for a wealthy Egyptian couple in my town, Irvine, California, a 'burb often rated, ironically, one of the most crime-free cities in America. After three years of captivity, working night and day for the couple and their five children, sleeping in their unheated, unlighted garage, washing her clothes in a bucket, she is spotted by a suspicious neighbor who tips off the police. The couple is convicted and Shyima is taken to Orangewood orphanage, then adopted by a foster couple, and along the way befriended by a compassionate agent of U.S. Immigration and Customs Enforcement (ICE).  

Shyima obtains a green card as a Special Immigrant Juvenile.  After high school, she travels around the country with ICE to speak about the dangers of human trafficking and urge trafficked victims to be brave and come forward. She volunteers with the Public Law Center, the Orange County Human Trafficking Task Force, and other anti-slavery groups such as the Coalition to Abolish Slavery and Trafficking. 

Years later, serendipity leads me to Shyima (who is now a young adult).  It prompted me on a whim to pop into the office of an ICE communications officer to say hello at the close of a USCIS California Service Center Stakeholders Meeting. The officer tells me about Shyima and her goal to become an ICE officer, but also of this amazing woman's preliminary need to find pro bono counsel who'll help her become a naturalized American. Asked to find Shyima pro bono counsel, I volunteer myself and my firm. The media have followed Shyima's story, since she was first released from captivity, and again just last week in this Los Angeles Times piece and this AP article as well as the following video, shot on the day of her oath-taking and embrace of American citizenship.

Not all immigration stories flow naturally with such a dramatic arc. Some are hidden and must be teased out and coaxed to appear. Immigration lawyers who can do this, in my view, "are worth their weight in gold," as another immigration-agency communications officer, Karen Kraushaar, once told the Washington Post (before she moved on to another federal job and later joined other women accusing Herman Cain of sexual misconduct  -- a totally different story in itself).

In truth, Ms. Kraushaar was referring to Immigration law's complexity ("[It's] a mystery and a mastery of obfuscation"). While surely the ability to traverse code sections, regulations, policy interpretations and institutional history matters (as the Supreme Court unanimously demonstrated this week in the Judulang case), that's not the whole story. 

Green Card Stories.jpgTelling immigration stories matter(s) just as much, sometimes more. Good immigration stories entice.  Unlike the physical imprisonment of Shyima's Irvine garage, they create emotional captivity. They have the power, as in Shyima's case, to melt the (too-often) frozen heart of ICE. Take for instance the 50 real-life biographies depicted so well, with vivid photos and eloquent word pictures, in a new book, Green Card Stories. These stories, however, did not tell themselves.  They required worth-their-weight-in-gold immigration lawyers (mostly members of the Alliance of Business Immigration Lawyers) to bring them to life.

Immigration lawyers, paralegals, U.S. citizen spouses and families of the foreign born, employers of non-citizens, and would-be Green Card holders:  Read this book! It will inspire you to make your clients', families', employees' and your own Green Card stories a reality. These stories, like all well-told immigration biographies, humanize the demonized and prove that they are worthy of welcome. These dramatically revealed tales of truth and hardship, often extreme and exceptional, unmask the lies of the nativists and the naïve, who make or believe the make-believe memes about immigration, legal and illegal. They help us "Define American."

These immigration stories are not woven of mere gossamer words that violate immigration law [INA § 274C(f)]; stories that break the law are "false, fictitious, or fraudulent statement[s] or material representation[s], or [have] no basis in law or fact, or otherwise fail . . . to state a fact which is material to the purpose for which it was submitted." Rather, the stories of which I speak are knitted with the strong, resilient threads of lawyerly due diligence and probing curiosity It also helps to have a liberal arts education and to embrace the inquisitive Socratic method. Contrary to the Gingrich who stole Christmas, it is not limited to one in 11 million and does not require 25 years of physical presence in this country.
These recountings are best backed by documentary proof, powerful visual images and the sound of a ringing, truthfully spoken tale. As Rod Stewart (himself a naturalized American) might wail, EVERY IMMIGRANT TELLS A STORY!
 

Posted by Angelo A. Paparelli on April 24, 2011

Demystifying Immigration Myths

A trip abroad, as I took recently for a speaking gig, often allows intellectual curiosity to gallivant more freely.  It also provides opportunities to question accepted truths or cause germinating notions to blossom into convincing arguments, especially if serendipity or divine providence creates chance meetings with strangers.  These thoughts crystallized after my return as I read Peggy Noonan’s op-ed piece in the April 23-24 Wall St. Journal, “What the World Sees in America.”  She wrote: 

[There] are . . . reasons for a new skepticism about America’s just role and responsibilities in the world in 2011.  One has to do with the burly, muscular, traditional but at this point not fully thought-through American assumption that our culture is not only superior to most, but is certainly better in all ways than the cultures of those we seek to conquer.  We have always felt pride in our nation’s ways, and pride isn’t all bad.  But conceit is, and it’s possible we’ve grown as conceited as we’ve become culturally careless.

Which brings me to the point of this post. I need to debunk a curious and obscure creation of the federal courts, a particularly perverse form of "American Exceptionalism” (itself, a distasteful term which I must flavor with a boulder’s worth of granulated salt to get it down the gullet).  The construct of the federal courts that I’m about to describe rests on tottering and false assumptions.  These are (a) that administrative agencies, in particular, federal immigration agencies, possess superior expertise in interpreting the enacted laws which they administer, and (b) that therefore courts should abdicate responsibility for interpreting these laws and defer to the agencies’ presumably learned prowess in the art of statutory interpretation. 

(Before challenging the courts’ concoction, I note my displeasure with the conceit – pun intended – of American Exceptionalism, most often a proxy for undeserved arrogance or fact-free opinion.  Yes, in times past we have shown ourselves to be a great nation, as, for example, the Marshall Plan, created by our forbears, that saved Europe after World War II – a laurel on which today’s younger Americans undeservedly rest – or the Civil Rights Movement, which planted seeds that allowed a biracial American to become the nation’s president.  Also a feature more of the past than the present is America’s tradition as a welcoming nation of immigrants, a form of Exceptionalism that I unhesitatingly extol.) 

The high- (or, in my view, low-) water mark for judicial deference to presumed administrative-agency expertise is the Supreme Court’s Brand X decision, an aptly titled case for TV viewers of 1960s-era commercials who know that the name refers to a decidedly inferior product. Brand X held that the federal courts must yield to an administrative agency’s legal interpretation if the words of a statute are ambiguous.  As Carl Sandburg taught, the words of statutes, when read by trained legal and judicial minds, virtually always can be interpreted as ambiguous.  Thus, the courts are under orders to let the agencies call the shots. 

So, do immigration agents in the Departments of State, Labor, Homeland Security and Justice really possess special expertise, greater than the courts, in divining the elusive intent of Congress whenever our federal legislature has passed immigration laws?  My 30-plus years as an immigration lawyer compel me to shout a “NO” answer. 

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Here’s why. America’s immigration agencies are silos, each spewing forth legal assertions from their prescribed parcels of the expansive turf that is the Immigration and Nationality Act (INA).  The Labor Department (DOL) may claim arguable expertise with immigration-related laws protecting the wages and working conditions of American and foreign workers, but it (like the other agencies, as I’ve noted in a prior post) has an axe to grind, rather than a mandate of blind justice in administering immigration laws.  DOL deserves no presumption of expertise about the multiple forms of statutory eligibility needed to procure immigration benefits (the domain of U.S. Citizenship and Immigration Services [USCIS] within the Department of Homeland Security [DHS]) or to obtain immigrant or nonimmigrant visas (the province of the State Department operating under a Memorandum of Understanding [MOU] with DHS).  The converse is also true, as USCIS readily admits. 

Similarly, two DHS police units – Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) – are charged, respectively, with removing or excluding foreigners who have violated or are likely to break the immigration laws.  Strangely, however, these federal cops play a comparatively small role in declaring which activities fall within or outside the statutorily complex principles of lawful “immigration status” and valid employment authorization.  These instead are functions that USCIS (more or less) discharges concurrently with a variety of Justice Department units (the Executive Office of Immigration Review, comprised of the Immigration Courts and the Board of Immigration Appeals, along with the Office of the Chief Administrative Hearing Officer and the Office of Special Counsel for Unfair Immigration-Related Employment Practices [OSC]). 

As post-9/11 “connect-the-dots” studies and Congressional hearings have taught us, and as most immigration lawyers already knew, the several federal immigration bureaucracies tend to protect their turf, and often distrust and positively dislike and disrespect their counterparts in sister agencies.  Worse yet, they typically prefer a cloistered existence rather than one that reaches out across the Executive Branch in patriotic efforts to harmonize and declare in unison a reliable set of interpretations of America’s immigration laws and policies. 

Lately, seasoned immigration observers have noticed a kind of Hatfields-and-McCoys détente in which interagency MOUs proliferate (as illustrated by the DOL-DHS MOU, the USCIS-OSC MOU, the DHS-State Department MOU and the impossible-to-exit and falsely promoted ICE Secure Communities MOU). Close readings of these MOUs reflect a desire by the various agencies to seek reciprocal non-molestation pacts and avoid tripping over one another, or to gull state and local authorities, rather than to provide harmony and transparency in the interpretation of the immigration laws. 

These types of governmental MOUs were never mentioned in my high school civics class, or in any course I took on administrative law.  They are an affront to Congressional power and a testament to legislative lassitude over immigration.  Such bureaucratic faux-contracts, when coupled with the fawning deference ordered by the Supremes in Brand X, resemble more a French farce about institutional asylees who assume governmental roles a la the 1966 film King of Hearts, than a just, reliable and orderly exercise of federal power in the immigration sphere.  As Peggy Noonan concluded in her op-ed: 

The whole world is . . . judging what it sees [of America], and likely, in some serious ways, finding us wanting.

And being human, they may be judging us with a small, extra edge of harshness for judging them and looking down on them. 

We have work to do at home, on our culture and in our country. 

Posted by Angelo A. Paparelli on March 13, 2011

I Am Furious (Yellow) -- at USCIS and its AAO

In my last post, I quoted Roxana Bacon, the former Chief Counsel of U.S. Citizenship and Immigration Services (USCIS), our nation's premier agency charged with determining eligibility for immigration benefits, who chided her erstwhile employer for "timidity" in failing to take legitimate administrative steps to reform America's broken immigration system.  While her point is correct, I am furious at USCIS, not just for timidity on immigration reform but also and especially for yellowed boldness and bureaucratic chutzpah.

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Don't get me wrong, the agency occasionally makes the right call, like its prompt assistance in offering extraordinary relief at times of natural disasters such as earthquakes in Japan and Haiti.  Another correct move is the announcement that USCIS will focus more resources on targeting "fake immigration attorneys."  In particular, the attack on individuals without law licenses who harm the vulnerable public and abuse trust by failing to understand or misusing the immigration laws is worthy and urgently needed. (Indeed, the Department of Labor should mount the same attack by eliminating from its PERM labor certification regulations the authority of unlicensed "agents" to represent employers and foreign citizens.) 

What enrages me with the USCIS, however, is its toleration, coddling and empowerment of adjudicative officers in its own agency who likewise (in most instances) lack admission to any state bar and are beholden to no canons of legal ethics.  These officers, in my experience and that of many lawyers, regularly abuse the vunerable public by failing to understand and -- whether wittingly or unschooledly -- misapplying one of the most complex bodies of federal law, the immigration laws. Needless to say, much of what makes life worth living is riding on a proper interpretation and application of these befuddling laws:    

Knowledge of [immigration] statutes, cases and agency regulations are required . . . to evaluate both the nature and the quantum of proof required in each type of case. The legal rights and privileges involved are some of the most basic to the individual: the right to travel, the right to obtain or retain residence in this country, the right to citizenship, and liability to criminal prosecution. [Source: Unauthorized Practice Of Law In Immigration Matters]

I am not as incensed by garden-variety sloth and ineptitude, like the ever-proliferating boilerplate Request for Additional Evidence, asking for the sun, the moon and the kitchen sink, released without customization to the facts of the case, but with inadvertent inclusion of the phrase: "[Insert name of petitioner here]."  No, I am enraged that a body within USCIS that purports to be a legal tribunal, the Administrative Appeals Office (AAO), would allow non-lawyers to render legal opinions that "draw . . . borders with pens that split lives like an ax." 

This license to opine and thereby destroy lives is no less outrageous than the Empire State's archaic Justice of the Peace system exposed by The New York Times, where roughly three-quarters of the "jurists" were found to have no bar association membersip.  The AAO reportedly employs lawyers and non-lawyers, according to comprehensive and worthy notes by Carlos Holguín of the Center for Human Rights & Constitutional Law (with [his bracketing]):

Although the AAO considers itself a tribunal, not all of its "jurists" are lawyers. [While, as was claimed during the [AAO] Listening Session, non-lawyer decision-makers can issue opinions as solidly as their attorney counterparts, persons not licensed as lawyers are not subject to discipline under the rules governing judges and lawyers.]

The other leading administrative tribunals that research and opine on the immigration laws, render decisions and designate some as binding precedents are the Immigration Judges and the Board of Immigration Appeals whose members must hold an LLB or JD degree and be duly licensed to practice law, as must all Administrative Law Judges according to the Office of Personnel Management.  The USCIS, however, apparently views itself immune from these requirements, since the posted job openings for positions requiring research into the immigration laws and the application of law to facts, such as Service Center Director, Overseas Adjudications Officer and Asylum Officer, do not require bar admission or legal education.  Indeed, USCIS gives legal education a comparatively low value, that of a GS-9, equivalent to one year of federal service.

What prompted this tirade against the USCIS and the AAO? I won't say. The rules of professional responsibility and my duty of confidence and trust owed to specific clients prevent me from outlining the particulars.  Suffice it to note that I am a jaundiced observer of AAO machinations (if you're curious, that's why I'm yellow).  Notwithstanding my canary complexion, and general desensitization to specious reasoning, I just received an AAO decision that -- were it placed in Olympic competition -- would win multiple gold medals for intellectual dishonesty, disregard of precedent decisions, "refudiation" of agency guidance and overall callousness of heart, while purporting to be sensitive and heartfelt.

My fury arises not only from this mean-spirited and legally ignorant decision (which if written by a lawyer would be an embarrassment to the profession) but from the legal structure which allows it to remain protected and virtually above reproach (save for a blogger's rant), namely, legislative restraints that have placed on courts a duty of fawning deference to agency rulings of law and discretionary decisions. 

As I seethe, I recall what the public has been told last year: USCIS is conducting a top to bottom review; a remarkable Transformation is imminent; and the agency will issue a proposed regulation to clarify the rules of practice before the AAO and lead to the designation of significantly more binding precedent decisions.  More recently, the Inspector General of Homeland Security has warned of threats from potentially rogue employees within USCIS, and suggested numerous fixes, including a proposal that adjudicators' approved decisions be reviewed by supervisory officers before formal release.  Whether or not the IG's proposal is adopted, I urge the Director of USCIS to arrange for internal attorney review of every draft decision, interpreting or applying law, written by any immigration officer not admitted to any established licensing bar.

Until then, I rage with an elevated (yellow) level of anger against the immigration machine and its (Un)Adjustment Bureau where non-lawyer "mystery men [and women] running an exceedingly specialized enterprise" participate in a sad governmental parody of yellow journalism that publishes "little or no legitimate well-researched" rulings.

[Photo Credit]