Posted by Angelo A. Paparelli on January 29, 2012

"I Hate [Bleep]ing Immigration Law" -- Whenever I Get an Unjust Request for Evidence

grand canyon.jpgEver since I first sat in a Los Angeles movie theatre watching Grand Canyon, Lawrence Kasdan's 1991 film, the only movie, to my knowledge, whose protagonist is an immigration lawyer, I knew I would mouth to myself, repeatedly over the ensuing years, one of its memorable lines.  The main character, Mac (played by Kevin Kline), practices a rather pathetic and half-hearted version of deportation defense in the City of Angels. Consumed by existential angst and a career going nowhere, Mac sits in his law office and screams to his secretary and to himself:  "I hate [bleep]ing immigration law!"

Don't get me wrong, after 30+ years as an immigration lawyer, I remain passionate about immigration and fulfilled in my career, mostly far closer to Emma Lazarus than to Mac. When the day's mail arrives, my heart still goes aflutter as official government envelopes are opened to reveal approval notices  -- proxies for one client's or another's American Dream about to take wing. 

This enjoyable ritual, alas, is increasingly disrupted by jarring correspondence from U.S. Citizenship and Immigration Services (USCIS) -- the dreaded Request for Additional Evidence (RFE). To be sure, a righteous RFE -- and some assuredly are -- is a good thing, offering a second chance to clarify what may have been less than clear in the initial submission. 

A roguish, stupid or intellectually dishonest RFE, however, will cause me to erupt into silent, internal conniptions (I can't actually shout expletives in my law firm because that would likely create a hostile workplace and trigger multiple unpleasantries under state and federal law). Living in California, the land of holistic therapies, I know that anger swallowed often morphs into depression.  To avoid that dreadful fate, I pen this post as a way to release outrage, stay healthy, and light a candle on RFE avoidance and response.

  1. Know the law and the non-law. While any immigration lawyer worth her salt understands the legal requirements to establish eligibility for the requested visa benefit, and knows how to muster supporting evidence, the RFE avoidant practitioner must also be familiar with the latest patterns among USCIS adjudicators in asking for legally irrelevant evidence. For example, no matter that the L-1 (intracompany transferee) visa is not one requiring a cash investment in a U.S. entity or a purchase of stock, expect that an adjudicator will request proof of funds transferred from abroad to buy a controlling interest in the petitioning business.  Similarly, although the working owner of a U.S. limited liability company seeking an H-1B (specialty occupation) visa to run the business would almost never appoint a board of directors (since the LLC envisions flexible and speedy management decisions), make sure that your client goes to the expense and burden of appointing a board so that an "employer-employee" relationship of owner to LLC can be proven.  Unfortunately, there is no treatise or hornbook that can help the hapless lawyer find out trends in RFE demands because these documents, though templated, change appearance as readily as chameleons. The only way to discern RFE trends (other than receiving them in bulk) is to network and share notes with other immigration lawyers.
  2. Manage client expectations.  RFEs, if unanticipated, often can destroy relationships with existing and new clients.  Good immigration lawyers inform the client of the possibility at the start of each engagement and each matter that USCIS will issue an RFE .  The lawyer's scripted conversation with the client goes like this (with quote in italics): "There is a possibility -- no matter how well we prepare our filing -- that USCIS will ask for more evidence.  You, client, have a business decision to make, and within reason, I will abide by your instructions.  Either, we anticipate every imaginable item of evidence (based on evolving patterns of RFE requests) and adopt a kitchen-sink strategy in submitting our proof, which is the strategy I recommend, or, you can authorize me to request of you and submit to USCIS only the types of evidence reasonably necessary to establish legal eligibility for the immigration benefit you seek.  We may or may not receive an RFE under either strategy.  The government (acting godlike, but without the grace) behaves in mysterious ways.  Your best chance of avoiding an RFE is by presenting as much evidence as possible."  
  3. Make it easy for the adjudicator to "Get to Yes." Having gathered all possible evidence, the attorney should provide proofs in a logical and organized way.  The attorney's covering letter (which the officer may or may not read) should be a roadmap to eligibility.  It should refer to an index of clearly-tabbed and logically-organized documents, refer to facts evidenced in the record or attested to by the client, describe in summary form what each item of evidence purports to establish and why each is relevant.  The attorney's letter should also cite the law, regulation, policy memorandum, guidance letter, legislative history, adjudicator's field manual, bar association liaison minutes or other source of legal authority that establishes eligibility under the proven facts.  Here is a simple rule for staying out of legal trouble and RFE hell:  Clients and third parties attest to the facts; lawyers refer to the facts elsewhere established in the submission, describe why each factoid of proof is relevant under law, and demonstrate why "yes" is the legally proper answer.
  4. Use word-pictures, graphics, charts and hyperlinks. Boring, sloppy, careless or poorly proofed writing pains and perturbs the reader.  Vivid, logical, grammatically correct, stylish and persuasive writing pleases the reader.  Text alone, however eloquently presented, may fail to make the desired impact.  Eligibility under law is often more readily established if graphical images and links to web-based materials support the messaging of the text-based submission.  The most likely way to enliven interest and avoid an RFE is to awaken an otherwise indifferent adjudicator, and provide compelling overt and subliminal reasons to approve the case.
  5. Humanize the case through honest storytelling. Contrary to some immigration lawyers' perceptions, adjudicators are human.  While examiners may be more focused on behaviors that reward them personally such as reporting suspected fraud, way down deep, they may just be moved to identify with the human condition.  If the adjudicator can be encouraged to see your client as a deserving human being, rather than just another file to be acted on before the end of the work day, maybe an RFE will not be sent, but an approval notice instead.  Talk in the submission about the consequences of a "yes" or "no" decision to your client and to the country --whether that client is a company, a person, a family, a university or a religious community.  Even adjudicators prefer to hold up their heads by doing the right and good thing rather than just adding another notch on their life-destroying revolver.
  6. Garner a reputation for zealous representation under law.  Pushovers get pushed over. If an adjudicator knows you as a lawyer who will stand up for your client and wield the tools of the law skillfully to achieve a just outcome, there is less of a likelihood that a thoughtless or unjust RFE will come your way.  Don't just give up, if the RFE or a denial is issued.  Press on.

Notwithstanding your scrupulous adherence to the Boy Scout Code (Be Prepared), the postal worker may nonetheless deliver an RFE.  After the inevitable silent cursing is over, the immigration practitioner and clients will pursue a course of action that may exhibit one or more of the following stratagems:

  1. Resist the temptation to respond sarcastically. Displays of temper or efforts at ridicule in response to RFEs meet with success as rarely as similar behaviors prevail with TSA officers. 
  2. Distinguish boilerplate from customized text. Every RFE contains a mix of both.  Consider the template text carefully (perhaps there's a grain of significance there), but focus on the specially drafted text that will likely reveal how carefully the adjudicator considered the evidence presented in the case.  If the tailored portion of the RFE mischaracterized the factual record or failed to notice key evidence already presented, then plan on diplomatically noting these missteps in the response. 
  3. Note whether the RFE contains assertions about legal requirements.  If such claims are unsupported by citation to legal authority and misstate the law, then quote Kazarian v. U.S. Citizenship and Immigration Services, a 9th Circuit case which in essence rebukes USCIS for making stuff up.  If the assertion differs from existing USCIS policy, point out the difference and cite Judulang v. Holder, a unanimous Supreme Court case which declined to follow an immigration agency's position because the agency (in that case, the Board of Immigration Appeals) "has repeatedly vacillated in its method for applying" the law's requirements.
  4. Respond fully with fresh evidence.  While re-arguing the significance of evidence originally submitted but treated as insufficient may occasionally succeed, the better approach is to rebut the interim conclusions suggested in the RFE with relevant and responsive evidence.  The evidence may involve proof of company or industry practices, scientific accomplishments or contributions to the economic or other national interests of the United States.  Whatever the issue of concern, take a fresh look at the best way to proffer the rebuttal evidence.  Perhaps it should come from one or more outside experts of unquestioned accomplishment and repute, a forgotten immigration policy memo or guidance letter, the dusty legislative history of a law long ago enacted, the supplemental information in a proposed or final regulation, or a government agency outside the immigration world.  Whatever the source, protect the administrative record with compelling evidence.
  5. Enlist government support or generate media scrutiny where appropriate. Sometimes RFEs are so off base that -- in addition to responding fully -- the practitioner may wish to enlist others in government with relevant authority.  Perhaps the USCIS Ombudsman, a Headquarters official or a member of Congress may be interested in learning of and resolving anomalies in service delivery or clearly wayward RFEs. Alternatively, if the client is willing, your resort to media focus (either traditional journalists or others proficient in social media) may be justified.  These unusual approaches may be premature (for an approval notice may yet be forthcoming) or better pursued if a denial is issued. 

Sometimes, the distance between an RFE and an approval notice are as wide as the Grand Canyon.  Thus, immigration stakeholders (in the words of a Washington Post review of the eponymously titled film) should "consider the ever-widening chasms that divide us, [and] the shifting demographic fault lines that have set society quaking like the needle on Richter's scale."  By employing the suggestions in this blog post, however, perhaps the distance will shrink and our clients' American Dreams will yet be fulfilled.

Posted by Angelo A. Paparelli on January 16, 2012

The DHS Inspector General Report on Fraud Detection at USCIS: Pious Immigration Baloney

praying man with baloney.jpgThe historian said to the venture capitalist, "Let's drop the pious baloney," as each sought the highest office in the land. No, this post is not the set-up to a joke, except perhaps a nod to the risible circular firing squad that the GOP presidential candidates have formed. 

And it's not about a sliced and packaged meat sausage, more accurately termed "bologna," a carnal creation of indeterminate provenance defined by federal law.  Nor is it about "holy baloney," a line from Haunted Honeymoon, a long-forgotten 1986 film.

Rather, the reverential  "baloney" of which I blog is that unhealthful mixture concocted behind closed doors in legislative and administrative abattoirs, the one that comes to mind with the unverified quote attributed to Bismarck ("If you like laws and sausages, you should never watch either one being made").

In particular, this post is about the multiple pages of sanctimonious hogwash (summarized here), served up last week by the Homeland Security Department's Office of Inspector General ("The Effects of USCIS Adjudication Procedures and Policies on Fraud Detection by Immigration Services Officers"). This is apparently the same report as the draft version selectively excerpted for sensational effect by The Daily, critiqued last week on this blog ("Power-Mad Career Immigration Bureaucrats Cry Wolf, Spook DHS Leaders"). 

In essence, the IG reports that:

  • "Immigration law is complex, and USCIS administers benefits of great value."
  • "Benefit fraud detection is challenging and has always created difficulties for federal agencies. . . . Threats to the immigration benefit system have not abated. In the 2012 DHS Appropriations Bill, the House of Representatives described recent attempted terrorist attacks on the United States as 'ongoing efforts by extremists to infiltrate our country through the exploitation of legitimate travel and immigration processes.'"
  • Immigration adjudicators, now dubbed "immigration service officers" (ISOs), and immigration fraud detection officers (IOs) don't have sufficient opportunity to exchange views and work together.  They should rub elbows more often, and ISOs need more fraud-detection training.
  • Half of the annual performance evaluation of ISOs is based on the adjudicator's demonstrated ability to detect and report suspected immigration fraud and national-security threats (the other half is based on the quality of adjudications).  Still, pressure (whether self-imposed or from USCIS) to produce decisions in volume persists and adversely affects fraud detection and adjudication quality.
  • USCIS guidance on when to request additional evidence is confusing.
  • Some ISOs perceive that USCIS supervisors and managers interfere with or overrule their decisions or reassign cases to more approving adjudicators.
  • There must be validity to these ISO concerns because the USCIS Administrative Appeals Office (AAO) "frequently supports the ISO's decision on appeal," as the AAO did in a case involving a former USCIS Chief Counsel who intervened on an O-1 extraordinary-ability-alien petition submitted by the University of Arizona. 
  • The IG is concerned "with those cases where [Office of USCIS Chief Counsel (OCC)] leaders may create pressure on the adjudications process so that improper approvals are or could be made." Thus, the IG believes that "[s]ome limitation on OCC’s ability to affect the adjudications process is necessary."
  • The IG also worries that outside immigration lawyers may improperly influence USCIS management to pressure ISOs into approving undeserving cases or those where fraud is suspected. "ISOs and managers in some USCIS offices said that efforts to undercut some denial decisions waste USCIS resources and send an implicit message to approve petitions and eliminate outside complaints. We were informed that special treatment remains prevalent. . . . An ISO said that the American Immigration Lawyers Association 'owns' USCIS. USCIS is aware of this perception . . ." 
  • "USCIS has yet to find an effective balance between its interaction with the public, especially immigration attorneys, and the need to protect the integrity of the adjudications process. This is a dilemma, because many people have an interest in USCIS decisions, and public comment is vital to the regulatory process. USCIS should strive to recognize the differences between legitimate public opinions about its processes and requests to change individual case decisions. Those who gain a special review of their case essentially receive a second adjudication without having to file an appeal."
  • The current standard of proof to establish immigration-benefits eligibility -- a preponderance of the evidence -- does not sufficiently achieve the DHS mission of preventing fraud. "To further protect the immigration system, Congress may wish to raise the standard of proof for some or all USCIS benefit issuance decisions. . . . A relatively low standard of proof does not account for all societal interests involved in the issuance of immigration benefits. "  

Just like most baloney, the IG's report is encased in a superficial shell, a shiny plastic wrap that presents its contents in the most favorable light. To understand the redolent bolognese features of the IG's report, however, readers should first recall key components from the tool kit for spotting falsehood offered by the late Carl Sagan in "The Fine Art of Baloney Detection":  

  • Wherever possible there must be independent confirmation of the facts
  • Encourage substantive debate on the evidence by knowledgeable proponents of all points of view.
  • Arguments from authority carry little weight.
  • Spin more than one hypothesis - don't simply run with the first idea that caught your fancy.
  • Try not to get overly attached to a hypothesis just because it's yours.
  • Quantify, wherever possible.

The IG report fails on all of Sagan's points. It begins with a flawed premise, namely, that Congress (other than merely the instigator of the report, Sen. Charles Grassley) is very worried about lapses at USCIS in detecting fraud.  Rather the IG falsely premises the supposed Congressional concern about anti-fraud failings within USCIS by citing to a House report that referred solely to failures at U.S. consular posts and embassies abroad.  Here is the full quote from House Report 112-091 pp. 50-51 cited by the IG in referring to "'ongoing efforts by extremists to infiltrate our country through the exploitation of legitimate travel and immigration processes'":

The Committee provides $32,489,000 for the ICE Visa Security Program, an increase of $3,000,000 above the amount requested. This program places ICE investigators overseas to review visa applications from high-risk countries and populations and to uncover ties to extremist or criminal groups. Recent attempted terrorist attacks on the United States have highlighted the ongoing efforts by extremists to infiltrate our country through the exploitation of legitimate travel and immigration processes. The Committee believes that expanding the program to additional countries will reduce fraud and security risks in the issuance of visas and thereby reduce terrorist travel to the United States and international criminal activity. The Committee directs ICE to provide a classified briefing no later than November 1, 2011, on how it will utilize these additional funds to expand the program. (Bolding added.)

Clearly, the House was worried about the Underwear Bomber and other applicants abroad seeking U.S. visas, and the IG has been caught with its pants down.

The IG also erred when it extrapolated from a very small sample of USCIS employees, 147 managers and staff, and received 256 responses to an online survey.  As AILA President Eleanor Pelta has noted:

[This is a] total of 403 employees out of an 18,000 person workforce, or about 2 percent. Of that two percent, 63 individuals expressed a concern about pressure to approve cases. That is fewer than 25% of the individuals who responded to the online survey, and .03% of the total population of individuals who process applications for benefits for USCIS. I’m not a statistics expert, of course, but to my untrained eye this just doesn’t seem to be a valid sample size from which one could draw any useful conclusions whatsoever. To paraphrase something my mother might say, “From this you can make a report?”

Aside from problems with the small sample size, the survey questionnaire was drafted in a manner that made it impossible to draw meaningful conclusions.  It poses compound questions that conflate legal ineligibility for an immigration benefit with concerns over suspected fraud:

Have you personally ever been asked by management or a supervisor to ignore established policy or pressured to approve applications for benefits that should have been denied based on the Adjudicator Field Manual, other USCIS policy documents, or fraud/ineligibility concerns? (Bolding added.)

The IG readily acknowledged that inferences drawn from its findings may be unjustified:

[The] testimonial evidence that our interviewees provided may not be views shared by other employees. Quotations from our interviews and survey responses reflect the views and personal experiences of individuals, not necessarily the experience of most ISOs across the United States. . . . General employee concerns about the impact of production pressure on the quality of an ISO’s decisions do not mean that systemic problems compromise the ability of USCIS to detect fraud and security threats. No ISOs presented us with cases where benefits were granted to those who pose terrorist or national security threats to the United States.

Although the IG report was limited to internal sources, investigators apparently did not interview anyone at the USCIS Office of the Ombudsman, the DHS unit "created by Congress in the Homeland Security Act of 2002 to help individuals and employers who need to resolve a problem with [USCIS] and to make recommendations to fix systemic problems and improve the quality of services provided by USCIS (although the IG snagged data from various Ombudsman's reports).

Also absent from the IG report is any recognition that the benefits made available by Congress  to eligible petitioners and applicants under the legal immigration system provide innumerable opportunities of tremendous value to America. The IG also seems oblivious to the harm that an adjudication system rewarded by a 50% focus on fraud will cause, having forgotten the wisdom of Abraham Maslow ("If the only tool you have is a hammer, you tend to see every problem as a nail.")

In addition, the IG assumes without investigation or evidence that ISOs know the immigration law (even though few are lawyers), that the AAO knows the immigration law (even though not all are lawyers), that the training provided to ISOs on substantive immigration law is adequate, or that outside lawyers and other stakeholders who bring problems to the attention of USCIS management are improperly pressuring ISOs to reverse their decisions.  It may be that these efforts are nothing more than quality assurance opportunities, or teachable moments. 

To its credit, the leadership at USCIS challenged the IG report on several grounds.  The most significant challenge goes to the heart of the IG's ill-conceived concern about perceived pressure on ISOs:

The manner in which USCIS handles or addresses a stakeholder inquiry or complaint depends on the nature and complexity of the incoming information. Some inquiries are very straightforward and can be addressed quickly with readily available information. However, other inquiries or complaints are more complex and may involve allegations of case mishandling, inconsistency in USCIS decisions, or violations of privacy and civil rights or civil liberties. In such instances, USCIS’s review of the incoming information could lead to a substantive review of any decision associated with the allegation. While the adjudicator involved may subjectively perceive a request to review a decision as putting undue pressure to ensure a certain outcome, such is not the intention of the request. Rather, USCIS’s responsibility is to ensure that the decision was correct and that the allegations are addressed. . . . USCIS does not perceive any pervasive or systemic problem along the lines implied . . . (Bolding added.)

Surprisingly, however, the IG does not address the very specific areas of Sen. Grassley's concern when commissioning the report:

Please specifically review whether the leadership changes and internal managerial rotations made at the California Service Center in July/August 2010 led to pressure to approve more cases. Please review communication between Service Center Operations leadership and California Service Center leadership to determine if there was support, or lack of support, for addressing fraud and what, if anything, changed in July/August 2010.

While the IG report does review the action of the former USCIS Chief Counsel, without naming Roxana Bacon, it merely presumes, as noted, that she must have been wrong because the AAO affirmed the adjudicator in the University of Arizona O-1 case.  Roxie Bacon, however, offered me a very different and revealing analysis of that matter:

The CSC [California Service Center] which had run autonomously for so long was especially alarmed with efforts to formulate and adopt centralized standards and true accountability/transparency for the adjudications. Nowhere are guidelines and adjudicatory tools more needed than in the complex, difficult and subjective review of "O" petitions. The leadership at CSC threw up every type of defense to do things as they chose. . . . The U of A case, the inquiry of which came from DHS' central office staff, was a great example of the perils of having non-experts try to assess a case that had so many elements needing a good tool kit. And of course as we know a spirited disagreement about what the tools could and should be is healthy . . . 

Roxie's assessment, notwithstanding the AAO's apparent affirmance of the O-1 denial, is supported by a federal appellate court ruling, not cited by the IG, which rebuked both the AAO and the California Service Center in ruling on the proper standards of determining eligibility in a case involving the EB1-1 extraordinary-ability immigrant-visa analogue to the O-1 category. The Ninth Circuit Court of Appeals in Kazarian v. U.S. Citizenship and Immigration Services, Case No. 07-56774, filed September 4, 2009, amended March 4, 2010, recently determined that the CSC and the AAO “may not unilaterally impose a novel evidentiary requirement” without support in the Immigration and Nationality Act or agency regulations, citing Love Korean Church v. Chertoff, 549 F.3d 749, 758 (9th Cir. 2008). Love Korean Church (at footnote 7) extended this principle to requests for evidence:

It is of course true that "[i]n appropriate cases, [USCIS] may request appropriate additional evidence relating to [the statutory] eligibility . . . of the [petitioning] organization, the alien, or the affiliated organization." 8 C.F.R. § 204.5(m)(3)(iv). This provision, however, does not authorize [USCIS] to impose, as it did here, additional threshold requirements that are "plainly erroneous or inconsistent with the regulation[s]." Bassiri [v. Xerox Corp.], 463 F.3d [927, 930] (9th Cir. 2006) (internal quotation marks and citation omitted).”

If the IG really wants to be fully responsive to Sen. Grassley and can the baloney, it should reopen its investigation, conduct a statistically valid review, and solicit the observations of external stakeholders, for as Carl Sagan observed:

Finding the occasional straw of truth awash in a great ocean of confusion and bamboozle requires intelligence, vigilance, dedication and courage. But if we don't practice these tough habits of thought, we cannot hope to solve the truly serious problems that face us -- and we risk becoming a nation of suckers, up for grabs by the next charlatan who comes along.

We are a Nation of Immigrators, not a nation of suckers.

Posted by Angelo A. Paparelli on November 13, 2011

Immigration's Hobgoblin: A Foolish Inconsistency

Europe is at a tipping point.  Will the European Union be dashed on Greek or Italian shores.  Will France follow Greece and Italy in losing the esteem of bondholders? Will the EU revert to an Uncommon Market and again suffer its historic curse, a mash-up of competing and warring states whose citizens must proffer passports to cross borders and each time frequent the local moneychangers to buy or sell. 

As this is written, European pols, especially those of the Teutonic variety, may well be mulling the words of Emerson, the American transcendentalist, in his essay on Self-Reliance:

skeleton_eyes.jpgA foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines. . . . Speak what you think now in hard words, and tomorrow speak what tomorrow thinks in hard words again, though it contradict every thing you said today.

America, however, learned the value of consistency in its infancy, first from Ben Franklin on signing the Declaration of Independence ("We must all hang together, or assuredly we shall all hang separately") and then in drafting a national constitution after the failure of the Articles of Confederation. Latin scholars and law students are taught consistency in the principle of stare decisis et non quieta movere: "to stand by decisions and not disturb the undisturbed." 

Judging from the surfeit of GOP presidential debates, the party of Lincoln is not too sure about consistency's value. Inconstancy is not solely a character trait of multiple-personality Mitt, the likely consensus nominee.  Rather, it informs each Republican candidate for the presidency of the 50 "united" states who, irreconcilably, proclaims the national freedom to bear arms yet encourages the states to go their separate ways on abortion and immigration. 

President Obama is no less immune to criticism.  The Deporter-in-Chief campaigned for a first term on comprehensive immigration reform.  When challenged for nonfeasance, however, he pleaded that he could not "wave a magic wand and make it happen". Yet by allowing Homeland Security officers to exercise prosecutorial discretion in immigration matters and issuing executive orders to ease the housing crisis, the burden of student loans, and soon healthcare deficiencies, he has acted unilaterally, saying "[w]e can't wait" for Congress to act.

So when is consistency a virtue and when is it foolish?  In matters migrational, consistency is virtuous when it leads to predictable and uniformly equitable results, when it achieves harmony and a general perception of even-handedness among stakeholders. It is folly when mistakes, consistently arising, are not recognized as such or are left to fester uncorrected.

PERM labor certifications should not take three months in one case and 27 in another (even if an audit ensues) -- the current range of DOL processing times, as I learned yesterday at the AILA California Chapters Conference in San Francisco.  A blanket L-1 visa applicant in Chennai should be just as deserving of her visa if an identically qualified blanket L-1 applicant is approved at a U.S. consulate elsewhere. An H-1B work visa petition for a small business approved at the USCIS Vermont Service Center should not be denied on virtually identical facts at the VSC's California counterpart (likewise the general consensus of panelists describing the regional-service-center status quo at the San Francisco AILA conference). 

The scheduling of merits hearings in removal cases should not take four years in Chicago and considerably less, sometimes mere months, in other U.S. cities (another AILA SF factoid). U.S. citizen spouses who enter the U.S. under the Visa Waiver program should not be welcomed with a green card throughout California, except in San Diego where the local field office facilitates their expedited removal (yet one more data point from AILA conference speakers).  A nationwide policy of prosecutorial discretion should be applied consistently to like cases nationwide, but regrettably they are not, as Julia Preston of The New York Times reports today ("Deportations Under New U.S. Policy Are Inconsistent").

Intellectually disingenuous nitpickery, moreover, should not be allowed to override the principle of consistency: If USCIS on five occasions recognizes an O-1 nonimmigrant as a person of extraordinary ability he or she should not be denied a first preference extraordinary-ability green card when the legal requirements to be classified as "extraordinary" are identical. 

Consistency creates what we lawyers call a "reliance interest."  Inconsistency in the rule of law creates unreliable, unpredictable chaos and loss of confidence in the future -- precisely the worst outcomes when economies worldwide are foundering.  As Google's CEO, Eric Schmidt said at a November 12 White House press briefing: "What business needs is predictability." So too do the American people, and the would-be Americans who seek uniformly interpreted and consistently applied decisions in like requests for immigration benefits.

ghoul.jpgWorse still is the foolish inconsistency practiced by the most ghoulish hobgoblins, the guardians of our immigration adjudications -- the distracted Executive Branch, the blind or indifferent overseers in Congress and the respective Secretaries and headquarters officials of the U.S. Departments of Homeland Security, State, Justice, Labor and Commerce -- who countenance the pervasiveness of their charges' deviant decisions.  Whether the problem is caused by overlooked insubordination below or deliberate insouciance above, immigration inconsistency is terrifying this Nation of Immigrators.    

Posted by Angelo A. Paparelli on October 29, 2011

Entrepreneurs in Immigration Residence Are Set to Occupy USCIS

Light at the end of the tunnel.jpgThe Occupy Wall Street movement began with a poster, a word cloud, a QR Code and three lines of text:

#OCCUPYWALLSTREET

September 17th. Bring tent.

www.occupywallst.org. 

Steve Jobs launched his massively successful "Think Different" rebranding campaign for Apple in 1997 with a TV commercial and this script:

Here's to the Crazy Ones. The misfits. The rebels. The trouble-makers. The round pegs in the square holes. The ones who see things differently. They're not fond of rules, and they have no respect for the status-quo. You can quote them, disagree with them, glorify, or vilify them. About the only thing you can't do is ignore them. Because they change things. They push the human race forward. And while some may see them as the crazy ones, we see genius. Because the people who are crazy enough to think they can change the world...are the ones who do!

Alejandro Mayorkas, the Director of U.S. Citizenship and Immigration Service (USCIS), recently announced with the flourish of a press release an ingenious "Think Different" initiative that may well transform this vexed and vexing immigration agency.  His announcement heralded the new Entrepreneurs in Residence Program (EIR), an experiment that will tap the wisdom and experience of seasoned startup veterans to inject fresh air and fresh insights into USCIS.

The EIR, as the press release explained, "will utilize industry expertise to strengthen USCIS policies and practices" affecting foreign "investors, entrepreneurs and workers with specialized skills, knowledge, or abilities." As Director Mayorkas explained, the "initiative creates additional opportunities for USCIS to gain insights in areas critical to economic growth . . .  [with the] introduction of expert views from the private and public sector [which] will help [USCIS] to ensure that our policies and processes fully realize the immigration law's potential to create and protect American jobs."  A two-stage effort, the EIR begins as a "series of informational summits with industry leaders to gather high-level strategic input" and then the heavy lifting follows with the assembly of a "tactical team comprised of entrepreneurs and experts, working with USCIS personnel, to design and implement effective solutions."

The EIR occupation of USCIS cannot come a millisecond too soon.  Just like a Dream Act kid who keeps getting blamed for the mistakes of her undocumented parents, USCIS, only nine years old, keeps receiving many of the same brickbats that bombarded its ancestor, the former Immigration and Naturalization Service (INS).  Unlike the DREAMers, however, USCIS has magnified INS's peccadilloes and committed new more egregious ones of its own.  Ted Chiappari and I describe the venial and mortal sins of USCIS at length in our article, published last week in the New York Law Journal, "Intubation and Incubation Two Remedies for an Ailing Immigration Agency" (link courtesy of ALM Enterprises).

Whether intended or inadvertent, EIR is a deft stratagem, even more artful than Clintonesque triangulating.  Cleverness taken to the fourth degree, EIR, captured in one word, is all about quadrangulation.  If it is to succeed, EIR must task its occupiers to infiltrate and attack from within the four-sided challenge that is USCIS today: (1) the immigration stakeholder community and the USCIS Ombudsman clamoring for more user-friendly enhancements to fusty USCIS interpretations of work-visa eligibility, (2) the ever-campaigning President saying "we can't wait" for the enactment of job-creating legislation, (3) Socialism-incliningRepublicans in Congress, led by GOP commissars Smith and Grassley, who seem, counter-intuitively, to embrace immigration regulation more than job creation, and (4) the agency's anti-business, unionized adjudicators who prefer chaos theory over customer service.

Who will Director Mayorkas tap as the EIR's movers and shakers to prod, awaken, reeducate and redirect USCIS? As noted in the NYLJ  "Intubation/Incubation" article, ideally they should be "industry leaders" with just the right background:

[Entrepreneurs who] harbor a strong interest in an expansive reading of the employment-based immigration laws. Their likely interpretation would view the immigration laws as offering many opportunities to grow startup and established businesses in the U.S. by harnessing the innovations and skills of bright, energized and talented non-citizens. Prospective EIR participants with such interests and perspectives probably will have already used and intend to use again the employment-based immigration laws to secure USCIS's permission to hire foreign workers.

As the EIR experiment in intramural administrative sport begins, an October 29-30 Wall Street Journal editorial ("The Other Jobs Crisis") captured spot-on the immigration dysfunctions that beset America today. Migrant farm workers flee Alabama and Georgia, two states with nativist laws that cause produce to rot in the field. With few Americans willing to descend to back-breaking stoop labor, "incarcerated criminals" are dragooned to "work the fields." Republicans in Congress, the supposed "champion[s of] deregulation and business-led growth" focus on "immigration control" as "one of their main passions," while continuing "to ignore the economic costs" and the need "to overhaul the guest worker program to widen avenues for legal immigration."  Meantime, ironically on www.WSJ.com, GOP Presidential front-runner and pizza-chain turnaround artist, Herman Cain, callously rebukes the Occupy Wall St. protestors: "If you don't have a job and you're not rich, blame yourself! ... It is not a person's fault if they succeeded, it is a person's fault if they failed."

Like his Chief of Staff, Herman Cain is just blowing smoke.  He should know that not everyone can find a job in a nation with a 9.1% unemployment rate (but if Cain is truly "counter-factual" on the cause of U.S. joblessness, he is manifestly unfit for the presidency).  America desperately needs more job creators, the salutary byproducts of a functioning, business-friendly immigration system.  Since Congress will not act, and the President can't wait, my hope is that Director Mayorkas will install "demented" entrepreneurial occupiers of USCIS, "Crazy Ones" who "are crazy enough to think they can change" America by occupying his benighted agency.  

Posted by Angelo A. Paparelli on October 22, 2011

Legislatively Required, Bureaucratically Enabled Immigration Deaths

skull.jpgMany dysfunctions within the immigration ecospace are disturbing, but some make my blood boil.  The conniption that brought me to this Howard Beale moment erupted after I belatedly read a Forbes online article, published last April, by Osha Gray Davis ("A Death in Juarez: How U.S. Immigration Policy Is Tearing American Families Apart"). The Forbes piece reported on two people murdered in the Mexican border town of Ciudad Juarez and countless others living there in fear (just across from El Paso, ironically, one of America's safest cities) while waiting for the completion of snails-pace immigrant visa procedures at the U.S. consulate.    

Sadly, Americans by now may be inured to the everyday nature of the drug cartels' killing fields in Mexico, particularly in Juarez.  Last year, 15,000 people were slaughtered in Mexico -- the direct or collateral damage from the drug wars. Juarez, with over 3,000 killings a year, has earned a macabre distinction as Mexico's Murder Capital.  Just this month, two U.S. citizens, a mother and son from Kansas, died there when assault-rifle fire sprayed their SUV.

The situation has become so dire that even the Department of Homeland Security recognizes the importance of returning deportees to the interior of Mexico, far from Juarez, in order to "safeguard" the "the health, dignity, and well-being of undocumented migrants during the repatriation process."

DHS solicitude for the safety of the deported is commendable.  But why does it not also extend to more deserving Mexican citizens who, as the parents and spouses of U.S. citizens, may be eligible to receive green cards?  Why is it official U.S. policy that these immigrant visa applicants are permitted to appear for their mandatory visa interview only at the U.S. consulate in this city of blood lust? 

The problem is not a small one.  The consulate in Juarez is "the largest issuer of [U.S.] immigrant visas in the world," according to the U.S. Government Accountability Office.  Neither is the waiting time trivial.  The U.S. Citizenship and Immigration Services Ombudsman reports that half of the Mexican citizens seeking U.S. immigrant visas who require a waiver of inadmissibility, usually on a showing of extreme hardship to a U.S. citizen spouse or parent, must wait up to 12 months for a decision in their case.  Since a wait of even one day in Juarez may make the applicant a sitting duck for cartel violence, a year-long wait is simply unconscionable.  Worse yet, as explained below, if a waiver application is denied, the family separation may be for ten years or more.

This deadly form of Juarez red rover arises primarily from a failed experiment in 1996 at the instigation of Representative Lamar Smith -- now Chairman of the House Judiciary Committee -- who championed the "unlawful presence" bar to reentry that became part of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA).  The bar in most cases involves a decade-long ban on readmission to the U.S. (unless an extreme-hardship waiver is granted) for persons who entered illegally or overstayed the time period granted by the government.  The ten-year bar (like IIRAIRA's three-year and permanent bans on returning) is triggered only after the overstayer or EWI (one who "enters without inspection") has left the United States.  Thus, what might otherwise be a one- or two-day game of consular Russian Roulette in Juarez (as immigrant visa and waiver processing are completed) becomes a one- or ten-year-long exposure to cartel carnage for the 50% of extreme-hardship waiver applicants who are not granted expedited review or are denied a waiver.

As a 2011 law review article ("The American Dream Deferred: Family Separation and Immigrant Visa Adjudications at U.S. Consulates Abroad") argues persuasively, the "choice" facing U.S.-citizen spouses, parents and children of either separation from a loved one for up to ten years (if the waiver is refused) or relocation of the family to a narco-state (my wording) is a Morton's fork on which no one should ever be forcibly skewered:

This form of collective punishment is anti-family and can send ripple effects throughout American communities, from home foreclosures to an increase in single parent households. It is a drastic penalty to impose considering unlawful presence in the U.S. is a civil violation that has gone largely unenforced for many years. It also discourages families from participating in the legal immigration process due to the risk of a potentially devastating separation. After more than ten years since the passage of the unlawful presence bars, it is now appropriate to look closely at their impact and examine whether they constitute sound public policy.

Although IIRAIRA and the administrative time required in the waiver adjudication process might seem to mandate this result, existing executive authority to administer the immigration laws readily allows for a suitable fix (until Congress can be persuaded to repeal the unlawful presence bars).  Here are various actions the Obama Administration could take to solve the problem:

  • Grant "parole in place" and expand the "technical-reasons" or no-fault-of-the-applicant forgiveness provision of Immigration and Nationality Act § 245(c) to allow persons otherwise required to attend an immigrant visa interview in Juarez to apply for their green cards through the adjustment of status process. This is the best option for non-willful overstays and Dream Act kids who EWI'd because the unlawful-presence bar would not be triggered and extreme-hardship waiver adjudication would be unnecessary since the applicant would not leave the United States; or
  • Adopt a policy to confer extreme-hardship waivers within the U.S. before the consular interview to all non-criminal Mexican applicants based on the dangerous conditions in Mexico and the overriding equity of the family relationship to a U.S. citizen relative.  This is similar to an old Immigration and Naturalization Service Operations Instruction and a precedent decision, Matter of Cavazos, which allowed comparable applicants to obtain green cards through adjustment of status despite inadmissibility; or
  • Shut down the U.S. consulate in Juarez until conditions in the city are safe.  (The State Department did close the Juarez post for a few days after two consular employees were killed last year.) State should instead designate alternative consular posts after negotiating with one or more friendly and safer countries to allow Mexican applicants eligible to apply for a hardship waiver to enter for the purpose of attending the consular interview.  This approach would be modeled after the "stateside criteria" and "third-country processing" arrangements with Canada and other nations in the 1980s for Iranians and other foreign nationals who could not travel to their country of citizenship or last residence because of the unavailability of consular facilities there.  It would require an agreement with the host countries to assure the readmission of any denied applicants through the grant of advance parole to reenter.  Denied visa applicants given advance parole and readmitted to the U.S. would then be eligible under current law for adjustment of status, if USCIS granted an extreme hardship waiver, or for prosecutorial discretion, if the waiver were denied.

As these options show, seemingly mandatory legislative procedures that lead to immigration deaths only appear necessary if the Administration is unwilling to look under the hood of the immigration laws to find more compassionate and life-saving alternatives. End the immigration deaths in Juarez NOW.