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.


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.

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