Trouble, we got trouble, right here in Immigration Country (apologies to Meredith Wilson, lyricist for The Music Man). As the song goes, “either you’re closing your eyes to a situation you do not wish to acknowledge or you are not aware of the caliber of disaster indicated.” I refer not to the ersatz “professor” Harold Hill’s remonstration against the game of pool but rather to the mock justice that masquerades as an adjudication system at U.S. Citizenship and Immigration Services (USCIS).

As this is written, Sen. Chuck Grassley has called on the carpet Department of Homeland Security Secretary, Janet Napolitano, and asked the DHS inspector general to investigate pressures by the leadership at the USCIS’s DC headquarters (USCIS HQ) allegedly exerted against adjudicators at the agency’s California Service Center (CSC). The pressures reputedly imposed, the senator asserts, have attempted to foster a “culture of yes” and to require approval of requests for immigration benefits submitted by or for fraudulently conniving or legally undeserving parties.

The senator’s ire had already been raised by a draft USCIS HQ memorandum leaked last July. The memo offered what appeared as a brainstorming session to outline ways to address dysfunctional elements of the immigration system (including temporary status for unauthorized migrants) if — as appears likely — Congress were to fail to enact comprehensive immigration reform legislation. After President Obama confirmed that there would be no back-door legalization plan, the noise generally subsided, except for the outraged grumblings of Sen. Grassley.

Over the summer two senior CSC officials were reassigned and a new CSC director appointed following recurrent stakeholder complaints that the CSC repeatedly and improperly had issued numerous, highly burdensome requests for evidence and flouted USCIS HQ policies in denying approvable cases, particularly in employment-based immigration cases. Sen. Grassley’s staff has interviewed seven CSC adjudicators who regaled the staff with horror stories of allegedly improper actions by USCIS Director, Alejandro Majorkas. In the view of many lawyers, however, the charges against Mr. Mayorkas are a sham perpetrated by the inmates running the lower depths of the agency asylum who don’t want their unaccountable antics, their “culture of no,” to end. Early reports of stakeholders give Director Mayorkas high marks.

The problem with the Grassley charges, as AILA President David Leopold correctly observes, is that the senator is listening to a narrow group of complainers, in my view, an amen-chorus of wolves howling in the henhouse. The CSC grousers are no doubt the same ones who have stymied justice for years by writing outrageous kitchen-sink demands for documents (RFEs or Requests for Evidence), and issuing denial notices, notices of intent to deny petitions and revocations of prior petition approvals founded on specious and illegal grounds. If the DHS Inspector General, and better yet, Congressional oversight committees and the USCIS Office of the Ombudsman, are to investigate the adjudication system, then let’s open the inquiry and solicit the views of knowledgeable stakeholders — the individuals, businesses, community-based organizations and immigration lawyers with in-depth experience of USCIS and CSC abuse.

The situation, alas, is likely to get much worse before any improvement can be expected. This week USCIS convened an Administrative Appeals Office (AAO) “Listening Session” which offered the following highlights [with my response in brackets]:

  • The practice of filing one or more petitions after the initial request is denied constitutes an “abuse” of process, according to USCIS. [If the AAO did not take years to decide petitions, and the economy could be held in suspended animation while an appeal wends its way to its dilatory conclusion, there would be little need to pursue a legitimate practice, not prohibited by current regulations, to file a second or subsequent petition seeking to resolve perceived deficiencies cited by the adjudicator.]
  • The AAO engages in de novo review of facts and law and will deny petitions on grounds never asserted by the initial USCIS adjudicator. [The Board of Immigration Appeals, unlike the AAO, has issued detailed regulations to govern its proceedings, including a regulation, 8 C.F.R. § 1003.1(d)(3), that eschews fact finding and only considers de novo “questions of law, discretion, and judgment and all other issues in appeals from decisions of immigration judges.” Although the AAO conceivably could give appealing parties a chance to argue issues not raised in the first instance below, it rarely does.]
  • The AAO intends to issue many more precedent decisions but will not make USCIS policy, although it does claim the authority to follow the reasoning of non-precedent decisions. [The problem with this approach is that development of the law is not advanced through notice-and-comment rulemaking as the Administrative Procedures Act contemplates, but by the advocacy skills of the single lawyer raising the appeal for the single party who appeals. Increasingly, however, multiple parties have tangible legal interests that are adversely affected even though USCIS regulations provides no right to appeal and requires the loss of interim legal rights as the cost of an appeal.]
  • The AAO regularly consults with the Office of the Chief Legal Counsel on issues raised in appellate cases. [In tribunals that follow the rule of law, canons of legal and judicial ethics bar such unilateral contacts without notice and an opportunity for a hearing in which all parties and the court participate and the proceedings are transcribed for the sake of further legal proceedings.]
  • The AAO adheres to USCIS policy but could not precisely define the sources of authority that constitute agency policy. [When a caller asked during the Listening Session to clarify, e.g., whether any of the many Neufeld Memorandums stand as USCIS policy, she was given no clear answer. Instead, she was asked to send in samples of agency documents to determine if the documents constituted policy, to which she replied that she would send in the documents once the agency defined what constitutes agency “policy.”]
  • Although the AAO considers itself a tribunal, not all of its “jurists” are lawyers. [While, as was claimed during the 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.]

With its current configuration and mode of operation, the AAO, not unfairly, could be likened to the Star Chamber, but on closer observation, that would be improper and defamatory because the Star Chamber, as the U.S. Supreme Court has noted, at least offered swift and efficient, if unfair, rulings:

‘The court of star chamber was an efficient, somewhat arbitrary arm of royal power. It was at the height of its career in the days of the Tudor and Stuart kings. Star chamber stood for swiftness and power; it was not a competitor of the common law so much as a limitation on it – a reminder that high state policy could not safely be entrusted to a system so chancy as English law. . . .’ L. Friedman, A History of American Law 23 (1973). See generally 5 W. Holdsworth, A History of English Law 155-214 (1927). [Footnote 17 in Faretta v. California.].].]

The many-faceted flaws of the AAO, like the comparable deficiencies of the USCIS as an agency, and its predecessor, the Immigration and Naturalization Service, if not as longstanding as the Star Chamber, nonetheless bear some similarity to that ancient British court. As the conjoined history of INS and USCIS teaches us, “high state policy [cannot] be entrusted to a system so chancy as [the immigration law].”

The fundamental problems that plagued INS have persisted in the first seven years of USCIS, namely, the irreconcilable tensions between the enforcement mentality of so many in the agency and the customer-service mindset that would willingly grant immigration-related legal benefits to those supplicants who demonstrate — based on a fair and reasonable review of the evidence and of existing eligibility criteria — that they deserve to have their petitions granted. This problem was supposed to go away with the passage of the Homeland Security Act, which separated the benefits function from enforcement. Regrettably, the first major directive of the DHS Secretary, Delegation No. 0150, delegating duties to USCIS included police functions that predictably served to perpetuate the historic tensions, namely:

Authority to investigate alleged civil and criminal violations of the immigration laws, including but not limited to alleged fraud with respect to applications or determinations within the [USCIS] and make recommendations for prosecutions, or other appropriate action when deemed advisable.

Like I said, “we’ve got trouble in Immigration Country.” Let the investigations begin. Let’s become fully “aware of the caliber of disaster indicated.” Let’s fix this dysfunctional system once and for all.