Prognosticators, pontificators and pundits across the political spectrum predict that, no matter the outcome of the November elections, grinding out any new laws in the next Congress will be especially difficult. The 24/7 news cycle, the “gotcha” politics of personal destruction, and the collective eyes on the big prize in 2012 will all make bipartisan lawmaking as likely as a natural reversal of global warming. With a subject as contentious as immigration, the prospect of comprehensive or piecemeal legislative reform is even more improbable.
What else can politicians do when lawmaking is nigh impossible? They can issue subpoenas, convene hearings, take testimony and investigate real or perceived wrongdoing, while calling malfeasants discovered in the process to account.
The universe of potential subjects of investigation is immense. The Senate Committee on Homeland Security and Governmental Affairs has the “duty” (among others) to study “the efficiency, economy, and effectiveness of all agencies and departments of the [Federal] Government” and evaluate “the effects of laws enacted to reorganize the legislative and executive branches.” The House Committee on Oversight and Government Reform is that chamber’s principal investigative arm. It is authorized to investigate “any federal program and any matter with federal policy implications.”
As fingernails are chewed to the quick while awaiting the citizenry’s November 2 decision, those who would lead the Senate and House government oversight committees should pass the time pondering the following non-exhaustive list of suggested immigration-related questions for their respective committees to investigate. (Please tweet me any questions that I may have omitted at @angelopaparelli, and I’ll post a supplemental list.)
Department of Justice
- What tangible progress has been made in improving due process and the just and efficient administration of the Immigration Courts?
- Why has the inventory of cases awaiting resolution by the Immigration Courts reached a record high of 247,922 in June 2010?
- What steps have the Executive Office for Immigration Review (EOIR) and Homeland Security’s police agency, Immigration and Customs Enforcement (ICE), taken to resolve these problems?
- Have conditions of foreign citizens in immigration detention improved or worsened since the New York Times and various advocacy groups reported on the deplorable treatment of detainees earlier this year?
- What steps are the EOIR and the DOJ taking to address the special needs of the more than 8,000 unaccompanied foreign children per year who are placed into immigration custody?
- How much does immigration detention and removal cost American taxpayers, and has the money been well spent?
- Why has the Attorney General not taken a more active role in exercising the power given under the Immigration and Nationality Act to resolve immigration-related legal issues, and why has he routinely deferred instead to the Departments of Homeland Security, State and Labor.
Department of Labor
- Why does the Department of Labor (DOL) — as a prerequisite to issuing a labor certification — require employers to prove a negative (the absence of available U.S. workers) when the Bureau of Labor Statistics is far better qualified to determine labor market unavailability?
- Why has the DOL failed to implement a Labor Market information Pilot Program to define up to 10 occupational classifications in which there are labor shortage, a program authorized by the Immigration Act of 1990 as an alternative to the labor-market test under the agency’s PERM program?
- How does DOL justify the cruel hoax that the labor certification process (a theoretical labor market “test“) perpetrates on U.S. workers who desperately seek employment?
- To what extent has DOL’s elimination of the role of the 50 State Workforce Agencies in determining the local prevailing wage improved the accuracy and speed of wage determinations, lowered the cost or enhanced the operations of the H-1B, H-2A, H-2B and permanent labor certification programs?
- What is DOL doing to reduce the processing backlogs and delays associated with its PERM labor certification audits and its supervised recruitment programs, that now take years to complete?
- How much do the foreign worker labor certification and labor attestation programs cost American taxpayers, and has DOL spent the money wisely?
Department of State
- In what measurable ways, has the implementation of the Memorandum of Understanding between the State Department and the Department of Homeland Security made America more safe from security and terrorist threats?
- Does the State Department’s reliance on its historic extraordinary powers over the issuance or refusal of visas (e.g., subjectively-applied and arbitrary grounds of visa refusal, lack of transparency, nonreviewability of visa refusals by the courts, authority to refuse or revoke visas without explanation of the reasons why, protection from disclosure of records, lack of attorney representation at consular posts) materially hurt America’s reputation as a country committed to the rule of law, substantially hinder the entry of law-abiding foreign citizens to the U.S. or create ill will toward America among the citizens of foreign nations?
- What has State done to improve the operation of the online visa application system that has been plagued by software glitches(Form DS-160)?
- Why aren’t Visa Office Advisory Opinions published so that the public can gain insight into the requirements of the immigration laws as interpreted by State?
- Why has State not implemented better, more efficient and less expensive ways to reduce the cost to American taxpayers and improve the operation of the visa system than those now in place (e.g., video-recording of consular interviews rather than the building of expensive consular posts)?
- Why hasn’t State more frequently exercised its discretionary power to waive a visa applicant’s physical presence in the consular district and instead resume the former practice of visa reissuance in the U.S. (this would cause suspected terrorists and criminals who apply for visas to be immediately arrested and prosecuted by the Justice Department rather than be allowed to escape apprehension or oppose extradition in a foreign country)?
Department of Homeland Security
- Why has ICE declined to investigate and prosecute most cases of immigration-benefits fraud even though the Homeland Security Act (HSA) tasks it with this responsibility?
- What steps has ICE taken to improve the accuracy of E-Verify and make it less prone to evasion by identity thieves and fraudsters?
- What steps has ICE taken to reduce the number of E-Verify “Tentative” and “Final” Non-Confirmations that improperly inconvenience lawfully authorized workers or deprive them of the right to work?
- What metrics can ICE produce to show the effectiveness of its current I-9 enforcement strategies?
- What studies has ICE conducted to determine the feasibility of alternative measures to enforce the immigration laws against persons or entities who employ workers while knowing of their unauthorized status?
- What specific progress has U.S. Customs and Border Protection (CBP) made to enhance border security and prevent illegal entries, and how much has it cost and will it cost American taxpayers?
- Has CBP responsibly exercised its authority to order expedited removal without judicial review or has the agency unjustly deported significant numbers foreign citizens for reasons not grounded in law?
- Has CBP engaged in illegal profiling by country of nationality when seeking to identify immigration-related violators, as suggested by incidents this year at the Newark airport port of entry involving Indian foreign workers (AILA document 10020237)?
- What protections has CBP put into place to assure that constitutional rights are not violated when searching laptops, cell phones and thumb drives at ports of entry and border posts?
- What is U.S. Citizenship and Immigration Services (USCIS) doing to eliminate or minimize the inherent tension and conflicting missions that originated with the legacy agency (Immigration and Naturalization Service [INS]) and still persists between benefits adjudication (the work of district and regional offices) and law enforcement (the activities of its Fraud Detection and National Security Directorate [FDNS])?
- By what legal authority does FDNS investigate civil and criminal violations of the immigration laws in the guise of performing “administrative inquiries” even though the HSA places this responsibility exclusively on ICE and CBP?
- To what extent does FDNS deprive petitioners and applicants for immigration benefits of the right to counsel by conducting surprise site visits of parties represented by counsel?
- Have lawyers in the USCIS Office of Chief Counsel expressly approved FDNS’s administrative inquiries, notwithstanding the ethics rule in all 50 states that prohibits an attorney from engaging in direct or indirect communications with a represented party?
- Why has the Administrative Appeals Office (AAO) failed to reduce its longstanding backlogs that now exceed one year in temporary worker cases and two years in green card cases?
- Does the AAO, an administrative tribunal, merely interpret and apply the law or also formulate immigration policies?
- Does the AAO engage in any ex parte communications with other units of USCIS in reaching its decisions or does it abide by the usual prohibitions against unilateral tribunal contact with only one party to a proceeding?
- What were the root causes of the adjustment of status (AOS) “surge” in the summer of 2007 that required an unprecedented 30-day extension to file for AOS despite an unavailable immigrant visa quota and what has been done to prevent a recurrence?
- Why has USCIS repeatedly failed to fully utilize the annual allotment of immigrant visas, thereby causing hundreds of thousands of green card opportunities to be lost due to bureacratic delays at the close of successive fiscal years?
- Why has USCIS failed to regularly engage in notice and comment rulemaking and publish proposed new rules on statutes that have existed for several years, e.g., the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) and the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA)?
- What measures has USCIS adopted to sanction Immigration Officers who flout agency policy?
- Has the USCIS considered the adverse effect of its use of Requests for Additional Evidence and its soon-to-be adopted VIBE program on business petitioners, especially on small businesses and startup entities?
- Why has USCIS not developed and published a comprehensive policy and procedure for determining the continuity of employment authorization, the preservation of pending immigrant visa eligibility across all immigrant and nonimmigrant employment-based visa categories, and eligibility for successorship in interests in situations involving mergers, acquisitions, spinoffs and other forms of corporate restructuring?
- Has the immigration user-fee system of funding USCIS operations proven sufficient to maintain homeland security and a functioning benefits-adjudication system during times of low demand, or, must governmental appropriations be increased to provide a consistent base level of funding?
- Why has the USCIS Office of the Ombudsman not established representative offices in each of the 50 states as authorized by law?
- Why has the USCIS Office of Transformation shown so little visible progress even though “Transformation” has been an initiative of legacy INS and USCIS for decades (e.g., why can’t supporting evidence be submitted electronically with e-filed applications and why must foreign citizens repeatedly submit to the retaking of unchanging fingerprints when port-of-entry fingerprint scanning has been in place for years)?
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The foregoing are but a few questions that our congressional Oversight Committees should ask. American taxpayers have for too long been the unfortunate “beneficiaries” of our dysfunctional immigration system. If laws cannot be passed to improve the system, then Congress and the Executive Branch must work together to identify and eliminate the waste, inefficiencies, blunders, and law violations that plague the existing immigration system. A Nation of Immigrants must demand nothing less.