The last few days I’ve been gnawed upon by the feeling that my recent postings on the unreliable words of USCIS and DOL left something important unsaid. The recanting of DOL and reneging of USCIS keep reminding me of my law school days as my classmates and I watched the daily unfolding of the Wategate scandal on TV in the student lounge.
When DOL issued its “restatement” of the role of attorneys in PERM recruitment and the AAO said, in effect, that USCIS is not bound by anything it says unless contained in a regulation or precedent decision, the words of Nixon’s then Press Secretary, the late Ron Ziegler, came to mind. He famously repudiated all of his previous factual statements about the Nixon Administration’s asserted non-involvement in the Watergate break-in and cover-up by saying that his prior statements were “inoperative.”
Our immigration bureaucrats seem to have forgotten this lesson of history. Facts are never inoperative. Statements, once made and relied upon, can never be imagined away with the turn of an administrator’s phrase, as if they never happened.
An important reliance interest is damaged when the public cannot trust government to stand by its word. Stakeholder expectations, and business and personal plans, are dashed against the rock of administrative duplicity if not mendacity when governmental announcements of policy are issued with implicit mental reservations that these utterances are ephemeral and can be revoked at will. Words are not vapors that dissipate with the wind of bureaucratic expediency.
Pope John Paul II had it right when he said:
Trust is essential for our social wellbeing. Without trusting the good will of others we retreat into bureaucracy, rules and demands for more law and order. Trust is based on positive experiences with other people and it grows with use. We need to trust that others are going to be basically reasonable beings.
Owen D. Young, a lawyer and former chairman of GE, was also correct in observing:
We may accept the expanding power of bureaucrats so long as we bask in their friendly smile. But it is a dangerous temptation. Today politics may be our friend and tomorrow we may be its victims.
Why do we lawyers busy ourselves with the reading of immigration policy memoes that cannot be believed? Why do we fly or drive to attend liaison meetings with government agencies for front row seats at word-fests of deception? What good are we to clients if we cannot offer assured statements about what the “law” is?
Or to put it more tangibly, suppose undocumented immigrants disbelieved the following DHS announcement communicated through its Assistant Press Secretary, Michael Keegan, in a September 11 email to AILA:
In the event of an emergency – such as a hurricane – and the need for an officially ordered evacuation, our highest priorities are the safe evacuation of people who are leaving the danger zone, engagement in life-saving and life-sustaining activities, maintenance of public order, prevention of the loss of property to the extent possible, and assistance with the speedy recovery of the region. There will be no DHS immigration enforcement operations associated with evacuations and sheltering. The department’s law enforcement components will be at the ready to help anyone in need of assistance. Obviously, the laws will not be suspended, but in the event of an evacuation, we want to make sure that we can help local authorities move traffic out of the danger zone quickly, safely, and efficiently. (Italics added.)
What if the undocumented in the path of Hurricanes Ike or Gustav decided not to board buses to escape the hurricanes because they suspected that the announcement was in truth a sting operation? What if they instead stayed put and drowned? Would those deaths be inoperative?