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

Immigration stakeholders howled with joy this week over an announcement by Janet Napolitano, the Secretary of Homeland Security (DHS), and the DHS agency, U.S. Citizenship and Immigration Services (USCIS), about the forthcoming publication of a new immigration regulation.

Usually, the intention to publish a rule is no cause for huzzahs.  But this Notice of Intent is different.  It presages a rule that would prevent the separation of families for up to ten years by allowing unlawfully-present immediate relatives of U.S. citizens to file "provisional waiver" applications in the U.S. rather than abroad.

Under the rule as proposed, waiver applicants would be required to show that extreme hardship would befall their citizen family members if the three- and ten-year unlawful-presence bars were to apply as written in the Immigration and Nationality Act.  Individuals granted a waiver would be assured that they could appear for an immigrant visa interview at a U.S. consulate or embassy outside the country and be able to turn right around and be allowed back in as permanent residents (assuming that unlawful presence is the only inadmissibility ground the consular officer uncovers at the interview).

The announcement generated praise from editorialists (a "Common-Sense Immigration Move") and the immigration bar ("the move is . . . smart enforcement because it will reduce the illegal immigrant population and allow [DHS] to better focus its resources on keeping America secure and safe"). However laudable the effort to establish a "provisional waiver" rule that avoids family separation, its scope, regrettably, is limited. It ignores the pain of family separation where the qualifying relative is a permanent resident who suffers hardship no less extreme than a citizen's, and only covers unlawful-presence waivers, even though the immigration laws provide several other inadmissibility grounds that permit an extreme-hardship waiver.

The overly narrow scope of the proposed in-country waiver rules is understandable, however, in light of other reports this week which received far less notice but still caused immigration insiders to howl, this time in fear, along with alternating yelps of outrage. 

Three articles from The Daily, "a national multimedia iPad publication" subsidized by the Rupert Murdoch empire, reported the leaked contents of a draft DHS Inspector General report commissioned at the behest of Republican Senator Charles Grassley. The Daily articles carry breathless headlines conveying the sense that dastardly deeds are about to be uncovered ("RUBBER STAMP[:] Probe reveals feds pressuring agents to rush immigrant visas – even if fraud is feared," "PUSHING THE ENVELOPE[:]Immigration counsel in conflict-of-interest probe over visa approval," and "IMMIGRATION SCANDAL PROBE[:] Congressional panel to investigate claims officers were pushed to OK visa requests"). 

The first article is based on a "40-page report, drafted by the Office of Inspector General in September but not publicly released, [which] details the immense pressure immigration service officers are under to approve visa applications quickly, sometimes while overlooking concerns about fraud, eligibility or security." The article, citing the IG's draft report, notes that out of 254 immigration adjudicators interviewed 25% reported that "they have been pressured to approve questionable cases, sometimes 'against their will.'”  The IG does not identify any wrong-doers by name.  Yet The Daily article, illustrated by a mocked-up photo of immigration applications bearing multiple red "APPROVED" rubber stamps, proceeds to pin the wrap on USCIS Director, Alejandro Mayorkas, as the alleged perpetrator-in-chief who, it would seem, countenances fraud as a volitional byproduct of his supposed "get to yes" campaign. 

The Daily's initial article quotes unidentified adjudicators who claim they were demoted for declining to approve legally undeserving cases or replaced by officers willing to "get to yes". None of the 75% of adjudicators who disputed the claims of pressure to say "yes" is quoted in the article, only private lawyers who nonetheless believed that "officers are just looking for reasons to deny a case".  The accompanying photo and the "RUBBER STAMP" headline suggest the accuracy and thoroughness of the reporting. The immigration forms depicted are immigrant visa applications which applicants submit to the State Department, not to USCIS.  The reporter, moreover, presumes that the griping adjudicators actually know the immigration law  -- even though precious few adjudicators are lawyers. 

I wrote this email to the reporter with a caption, "Much more to the story than you've published," offering reasons why the initial article was incomplete, and asked for a copy of the unpublished IG's draft report.  Her answer: "We are not distributing the draft report as of yet, but I’ll reach out to you when I do a followup."  Despite two later, equally sensational articles, the reporter has not reached out, suggesting that getting to the facts about the USCIS California Service Center (CSC) -- the source of the original complaint to Senator Grassley -- is not a high priority. 

The Daily's second article is essentially a vindictive hit job on Roxana Bacon. A former USCIS Chief Counsel (who after her departure rebuked the USCIS for a host of failings), ex-Prez of the Arizona State Bar and past General Counsel of the American Immigration Lawyers Association, she apparently jousted internally over the question whether the University of Arizona knew better than a CSC adjudicator if "a visiting scholar of geography from Mongolia," petitioned as an O-1 (Extraordinary Ability Alien), should be allowed to fill an assistant-professor post. 

Although the second article notes the IG's reported belief that her "efforts were not based on reasonable interpretations of the law,” I have my sincere doubts, especially without seeing the underlying case file.  Roxie Bacon and I were partners for eight years at a prominent international law firm (Bryan Cave LLP) where we co-managed a group of ten immigration lawyers and 20 paralegals. She practiced immigration law for over 30 years and is razor-sharp in intelligence and first-rate in her understanding of the legal requirements for extraordinary ability.  On the other hand, I, like the immigration lawyers quoted in the article who criticized USCIS adjudicators' decisions, have often seen CSC opinions laden with failures of logic, misreadings of the facts, and plainly erroneous legal analyses, slathered over with large dollops of syllogistic and disingenuous pseudo-reasoning.  In other words, until all the facts are revealed, my experience with Roxie and with the CSC, cause me to give her the benefit of the doubt.

The final article in this trilogy, "IMMIGRATION SCANDAL PROBE[:] Congressional panel to investigate claims officers were pushed to OK visa requests," shows how politics is played in an election year.  Rather than waiting till the Inspector General completes his report, House Judiciary Committee Chairman, Republican Lamar Smith, is eager to investigate alleged abuses that "threaten 'the integrity of our immigration system.'”

Indignant at the charges, Rep. Smith told The Daily:

“It’s outrageous that administration officials would compromise national security for their own political agenda and gain,” Smith said, pointing out that visa applications often lead to U.S. citizenship. “The president’s most important job is to protect the American people, but it seems this administration is more interested in ignoring immigration regulations than making sure those who come here will not cause us harm.”

(This is the same Rep. Smith who -- in most un-Republican fashion -- has cozied up to the ICE officer's labor union, which "so far [has] not allowed its members to participate in the training" required to exercise prosecutorial discretion properly when enforcing the immigration laws.)

What The Daily's reporting fails to recognize, however, is that the conjured controversy within USCIS is merely an internal employment dispute magnified by a small group of power-mad, disgruntled and insubordinate adjudicators masquerading as whistleblowers who -- like Peter and the Wolf, imagine or fabricate broad-based threats to the immigration system and the nation's security.  In reality, these adjudicators are "mutineers" who use Washingtonian gamesmanship to fight Director Mayorkas "tooth and nail over every innovation and improvement he [has] proposed." 

Imagine what DHS might have done and yet do to improve the workings of the legal immigration system were it not for the spine-chilling howls of riled adjudicators who trump up controversies merely to play out the clock (they hope) till a different administration comes to power -- one that might be pleased to return to the "culture of no." Consider also another type of "Howling" -- one from the 1981 film of the same name, in which a reporter "is sent to a . . . center whose inhabitants may not be what they seem."

Despite persistent immigration deadlock in a Congress whose job approval has plummeted to its nadir, fresh tendrils of hope are sprouting: 

• We hear from reported remarks of Senator Richard Durbin that the Department of Homeland Security (DHS) will soon announce administrative action to give much-needed relief to individuals who would benefit from the DREAM Act, a bill still in its tenth year of infancy in the "world's greatest deliberative body." 
• Other welcome news came this week from the White House and the DHS agency, U.S. Citizenship and Immigration Services (USCIS), announcing new immigration avenues for foreign entrepreneurs and releasing a related FAQ.
• These moves arise on the heels of two prosecutorial discretion memos by John Morton, the head of Immigration and Customs Enforcement (ICE), that balance enforcement priorities with pragmatism by targeting dangerous immigration perps and showing compassion  for low-level immigration violators (allowing them suspended animation and work permission, presumably until Congress gets its houses in order and enacts comprehensive reforms).

These actions are merely yards and yards of 2012 campaign bunting, however, unless the Executive Branch displays chain-of-command rigor in disciplining insubordination in the ranks of lower-level immigration agents. Lofty statements about supporting small business and spurring immigration-juiced job creation are only vaporous platitudes without parallel actions to make sure the troops on the ground follow orders. 

I've blogged before about immigration indifference, describing it as the "Adjudicator's Curse." Time has shown, however, that the manifest problems of widespread flouting of orders stem from more than mere indifference.  Three of my experienced immigration colleagues (each with 20+ years of experience with the agencies), offer painfully descriptive ventings of real-word, systemic immigration meltdowns and propose the theory that adjudicators' off-message behaviors are attributable to "sloth" (a MUST READ: Tyranny of Sloth #1, Tyranny of Sloth #2 and Tyranny of Sloth #3). 

The failure to follow Headquarters' immigration policies is caused by more than indifference and sloth. 

• It could well be job-protection and fear of second-guessing if a bureaucrat makes a bad call in approving an immigration benefit that later explodes and causes an internal investigation or angry Congressional or media attention. (Recall that the posthumous grant of flight student visa status to Mohamed Atta and another 9/11 hijacker led to the elimination of the legacy agency, Immigration and Naturalization Service (INS).)
• It could be low hiring standards (one in-house counsel of a major American company once reported to this blogger that a senior USCIS official had tried to rationalize her agency's failures to comprehend the contents of documents submitted with his company's immigration petitions by saying, "You must understand, most of our adjudicators have learned English as a second language").
• It could be long institutional memories about a heads-will-roll "Zero Tolerance Policy," followed by the policy's revocation, then followed by a laudable effort to inventory and reconcile agency policies and survey the public. 
• There is probably also a significant measure of union-management tension, reflected, for example, in the attack on the prosecutorial discretion memos and public vote of no-confidence in John Morton by the ICE agents union and the formal opposition to discipline by the USCIS officers union, and
• Let's also not ignore the obvious -- entrenched opposition among career officers to this Administration's more welcoming immigration policies.  We've seen this movie before ("The IRCA Legalization Program," produced by famed Hollywood actor and U.S. President, Ronald Reagan and featuring a "cast of millions") and we know how it ends:
  • Scene 1:  Congress passes the Immigration Reform and Control Act of 1987 (IRCA) including a legalization provision requiring, among other elements, proof that a failure to maintain immigration status was "known to the government."
  • Scene 2:  INS issues a series of Legalization communiqués interpreting the "known to the government" requirement in niggardly and niggling fashion, thereby trying to shrink the pool of eligible legalization beneficiaries.
  • Scene 3: Years of expensive federal litigation ensues before final relief to denied "known to the government" beneficiaries is granted in 2008! 

Whatever the cause of bureaucratic intransigence, the President's laudable goal of creating jobs through more enlightened immigration policies and innumerable Conversations with the Director -- however commendable and well intentioned -- will not succeed unless "off-the-reservation" conduct by rogue underlings is sanctioned, not with ribbons and medals but with pink slips. 

Few observers predicted the profundity of global political changes in the first quarter of 2011.  

The Middle East, still the source of most of the world's energy, has witnessed civilian protestors toppling despots and prompting autocrats to invite foreign-state and mercenary armies to quell peaceful demonstrations and slaughter citizens. Libya's never-predictable Muammar el-Qaddafi, having nearly routed indigenous rebels centered around Benghazi, faces a UN-authorized no-fly zone and aerial attacks mounted at the behest of the Arab League, an organization now critical of air assaults that may provoke a full-blown war.      

Japan, no longer the world's second largest economy, is shaken by a 9.0 earthquake and tsunami that caused the deaths of probably 10,000 or more citizens and devastated the northeastern countryside. The resulting radiation fallout from severely damaged nuclear plants now contaminates the food supply and threatens public health. The devastation has also rocked the nuclear energy industry and called into question whether fission power will replace fossil fuels anytime soon.

With these events capturing public attention, President Obama is in Brazil, the worlds seventh-largest economy, the global leader in sustainable bio-fuels and ninth-largest oil producer with huge off-shore reserves.  The President hopes to return home with business deals that produce American jobs and secure access to less volatile sources of energy.  Whether or not he succeeds on this trip, he could not have failed to hear the sharp criticism leveled against American policy by Brazil's President, Dilma Rousseff, who chided the U.S. for its past "empty rhetoric."  As The New York Times reported, a "deeper relationship [with Brazil]," she said, must "be a construct amongst equals."

The two presidents failed, however, to reach an agreement that would allow Brazilians to enter the U.S. as business visitors or tourists under the Visa Waiver Permanent Program. Nor did President Obama endorse Brazil's call for a permanent seat on the UN Security Council, although on his state visit to India -- according to the NYT -- he "lent support to that country’s hopes for a permanent seat."

In this world of ever-erupting turbulence, a functioning immigration system would serve to promote America's foreign policy and economic interests, while honoring its tradition as a nation hospitable to hard-working immigrants.  Beyond securing the border against terrorists, criminals and ne'er-do-wells, an efficient and effectual immigration system would encourage investment, innovation and job-creation.  It would provide orderly systems for family reunification and refuge for the persecuted.  It would also bear marks of humility and wisdom, recognizing that our diversity is our greatest strength and that our actions abroad often stoke the push factors propelling and compelling people to breach our borders.

The present immigration system in the U.S. merely pays lip service to these objectives while suffering from malign neglect and willful meanspiritedness. Despite a 1986 federal law prohibiting employers from hiring workers whom they know or should know lack the legal right to work, the agencies charged with enforcement have yet to agree on the definition of "employment." Notwithstanding a 1996 law punishing illegal overstays, these same agencies continue to split hairs over the distinction between violation of nonimmigrant "status" and "unlawful presence," have yet to publish a rule defining what it even means to "maintain [legal] status," and still assert that a foreign citizen can be work-authorized yet have no immigration status. 

Most of us in this nation of immigrators bewail the system but do little to insist on adult conversations among lawmakers that might lead to pragmatic and humane solutions. In a time of focus on deficit reduction, we want more border security but would never tolerate a tax increase to pay for it.

Yet the candle-lighters among us, who'd rather not just curse the darkness, see a few glimmers, of luminosity. 

Business leaders in Utah, Colorado, Nebraska, Florida, Kansas, Oklahoma and, yes, even Arizona, have beaten back efforts to make state immigration laws still more draconian.  A leading labor union blasts the Administration's senseless and expensive immigration enforcement policy, while the Organization of American States faults us for inhumane immigrant detention practices.  A Tea Party leader -- Dick Armey -- says that if necessary to care for his babies he would break the law, ironically, on essentially the same grounds that spur unauthorized migrants to cross the border looking for work.  Hispanic members of the GOP propose a comprehensive and largely workable 12-point plan for immigration reform. Mainstream reporters such as NBCs Tom Brokaw are beginning to focus attention on America's brain drain -- the loss of talented foreign workers who've become so fed up with the quota backlogs, visa-screening delays and hassles on reentry to the U.S. that they take the education we provided them and leave to compete with the U.S. from their native lands. A new Start-Up Visa bill has emerged (but not as user-friendly as the U.K.'s) to woo foreign investors.

Although movement on immigration reform in Utah is heartening, the country cannot have the states enacting 50 versions of foreign policy or an equal number of immigration codes.  Only the federal government is positioned to steer a unified course on immigration. We can start by asking why the prosperous and rapidly growing BRIC countries (Brazil, Russia, India and China) are shut out from the E-2 treaty-based nonimmigrant visa category.  This entrepreneurial visa allows foreign investors from select treaty countries to start U.S. businesses quickly with whatever minimum amount of capital would ordinarily be sufficient to begin operations and start hiring, rather than invest the minimum $500,000 and create the ten jobs needed for the investor green card, the EB-5, with its costly tax consequences as the added price for permanent residency.

America has waited too long to revamp its immigration laws.  The usual three pillars of comprehensive reform (border security, worksite enforcement and legalization for the unauthorized in our midst) are not enough to make America globally competitive and enticing.  How many more whirlwinds of global change must jostle and buffet us before our leaders in Washington realize that we are falling from our perch as top dog?  Economic prosperity and job creation must be our prime immigration policy, with pragmatism and humane treatment closely in tow.  The sane voices must grow louder and more insistent. Outspoken business and union leaders, and one Tea Party icon, coupled with contrary-to-type Hispanic conservatives, and constant prodding from new economic powerhouses abroad -- all are a promising start.